R. v. D.S., 2014 ONCJ 373

Court File and Parties

Court File No.: Sudbury – Information Number 110892 Date: 2014-07-22 Ontario Court of Justice

Between: Her Majesty the Queen — And — D.S.

Before: Justice A. L. Guay

Reasons for Dangerous Offender Application released on July 22, 2014

Counsel: Philip Zylberberg, for the Crown Norman F. Williams, for the accused D.S.

Dangerous Offender Application

GUAY J.:

1On May 16, 2012, I convicted D.S. of assault causing bodily harm on C.F. and three counts of related breaches of his section 810.2 recognizance. Shortly after the conviction, the Crown obtained leave to bring a dangerous offender application with respect to D.S.. On June 27, 2012 I ordered a psychiatric evaluation of D.S. pursuant to section 752.1 of the Criminal Code of Canada. In its application for a psychiatric evaluation of D.S., the Crown indicated its intention to seek an indeterminate penitentiary term against him. D.S. opposes the Crown's request and seeks to be sentenced on the basis of accepted sentencing principles for the offences of which he was convicted in May 2012.

2In evidence, the Crown filed a number of psychological reports and a psychiatric report prepared by Dr. Mark Pearce. The Defence, in turn, filed a psychiatric report prepared by Dr. Jeffrey McMaster. These psychiatric reports are the most probative evidence in this application and deal with the probability of violent recidivism on the part of D.S.. I shall comment on them later in this decision. Given that the psychiatric evidence provided by these psychiatrists was consistent with their reports, I have referenced their evidence and conclusions mostly by citing those reports.

The Dangerous Offender Regime

3Part XXIV of the Criminal Code of Canada sets out the statutory requirements for obtaining a declaration that someone is a dangerous offender. It also sets out the penalties which can be imposed by the court following a hearing in which someone is declared to be a dangerous offender. Under subsection 753(1) of the Code, the court must (i.e. shall) find an offender to be a dangerous offender if it is satisfied (on a beyond reasonable doubt basis (see R. v. Jackson, 1981 CanLII 3281 (NS CA), 61 CCC(2d)540) that he or she has been convicted of a serious personal injury offence and that he or she by virtue of their past conduct constitutes a threat to the life, safety or physical or mental well-being of other persons, on the basis of evidence introduced at the hearing.

4The evidence at the hearing must establish that:

(i) the offender has engaged in a pattern of repetitive behaviour, which includes the offence for which he is being sentenced, that shows a failure on the offender's part to restrain his or her behaviour and the likelihood that the offender's behaviour will cause death or injury to other persons or inflict upon them severe psychological damage in the future.

(ii) the offender's behaviour constitutes a pattern of persistent aggressive behaviour, of which the offence before the court forms a part, which shows a substantial degree of indifference on his or her part to the reasonably foreseeable consequences to other persons of that behaviour, or

(iii) any behaviour by the offender which is associated with the offence for which he or she is being sentenced is of such a brutal nature as to compel the conclusion that the offender's future behaviour is unlikely to be inhibited by normal standards of behavioural restraint in the future.

5Of note, subsection 753(1.1) of the Code stipulates that if the offence for which the offender has been convicted by the court is a primary designated offence, for the commission of which a sentence of two years imprisonment or more may be imposed and the offender was convicted at least twice before of a primary designated offence and was sentenced to at least two years of imprisonment for each of those offences, there is a presumption that the conditions set out in subparagraphs (i), (ii) and (iii) (above) are presumed to have been met, unless the contrary is proven on a balance of probabilities. While in the present case the accused has previously been convicted of the offence of aggravated assault and sentenced for it to a penitentiary term of more than two years, he has not been sentenced similarly for other primary designated offences he committed in the past.

6Subsection 753(4) of the Code sets out the penalties which may be imposed on the offender once he or she has been declared to be a dangerous offender. In that event, the sentencing court is directed (shall) to impose on the accused (a) a penitentiary sentence of an indeterminate period (b) a sentence for the offence before it "which must be a minimum sentence of imprisonment of two years and order that the offender be subject to long-term supervision for a maximum period of 10 years or (c) a sentence based on accepted sentencing principles.

7In providing to the sentencing court the above-noted sentencing options, the Code provides that the court shall impose on such an offender a penitentiary sentence for an indeterminate period unless it is satisfied by the evidence at the hearing that there is a reasonable expectation that one of the less severe sentencing options under subsection 753(4.1) of the Code will suffice to adequately protect the public against the commission by the offender of murder or a serious personal injury offence. A serious personal injury offence is defined in section 752 of the Code to mean an indictable offence (excepting high treason, treason, first degree murder and second-degree murder) which involves the use or attempted use of violence against another or conduct either endangering or likely to endanger the life or safety of another or which inflicts or is likely to inflict severe psychological damage upon another person and for which a penalty of incarceration of 10 years or more may be imposed.

8A review of the case law reveals that a discussion of the dangerous offender regime quickly leads to a consideration of the separate but associated long-term offender regime. The long-term offender regime is, in and of itself, a separate sentencing regime. The reason for the link between the two, however, is that imposition of a long-term offender order is an option, together with a penitentiary term of at least two years, in the sentencing of someone found to be a dangerous offender. A court cannot properly sentence a dangerous offender without considering the merits of the three sentencing options under the dangerous offender provisions of the Criminal Code. Understanding how a long-term offender order works is necessary in deciding whether or not it is to be used in a particular case. This said, I will now briefly review the Code's provisions with respect to the long-term offender regime.

The Long-Term Offender Regime

9Subsection 753(5) of the Code provides that if an offender is not found to be a dangerous offender, the court may treat the application as an application to find the offender to be a long-term offender. In that event, the subsection also provides that the court may then find the offender to be a long-term offender or hold another hearing for that purpose or, in the alternative, impose on the offender a sentence for the offense for which he or she has been convicted. Statutory changes to the Code's dangerous offender provisions in 2008 removed the court's discretion to declare an offender a dangerous offender or not. The exercise of this discretion made it necessary for the court to examine the merits of imposing a long-term offender sentence before deciding what sentencing option to use. Notwithstanding that a dangerous offender designation must now be made by the court if the offender's circumstances fit the statutory criteria, the court is still left with a consideration of the merits of a long-term supervision order as part of the sentencing options outlined in subsection 753(4) of the Code in the sentencing of offenders found to be dangerous offenders.

10The long-term offender regime is set out in section 753.1 of the Criminal Code. It provides that following the filing of an assessment report under subsection 752.1(2), on an application for a finding that an offender is a long-term offender, the court may make a finding if it is satisfied that (1) the appropriate sentence to impose on the offender would be one of imprisonment of two years or more, (2) there is a substantial risk that the offender will re-offend and (3) there is reasonable possibility of eventual control of the risk in the community.

11Section 753.1(3) provides that if the court finds an offender to be a long-term offender, it shall impose on him or her a minimum sentence of imprisonment of two years and order that he or she be subject to a long-term supervision order for a period not exceeding 10 years. Section 753.3(1) provides that an offender who without reasonable excuse fails or refuses to comply with a long-term supervision order is guilty of an indictable offence and is liable to imprisonment for a term not exceeding 10 years. Section 753.4(1) further provides that in the event of a new sentence for contravening the long-term supervision order, that long-term supervision order is interrupted until the offender finishes serving that sentence unless the long-term supervision order is terminated by the court.

12Subsection 753.1(2) interprets the term "substantial risk" in relation to offences of a sexual nature. As has been noted in R. v. McLean (2009) 2009 NSCA 1 (CanLII), 241 C.C.C. (3d) 538 (N.S.C.A.), however, this definition (i.e. "substantial risk") is not an exclusive one, the issue of what is "substantial risk" being left for the court to decide on the basis of the evidence before it. The subsection defines a long-term offender as one who has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender's causing death or injury to other persons or inflicting severe psychological damage on other persons or an offender who, by conduct in any sexual matter including that involved in the offence before the court has shown a likelihood of causing injury, pain or other evil to other persons in the future through the commission of a similar offense.

13Because, therefore, subsection 753(4.1) directs the court to impose an indeterminate penitentiary sentence on a person declared to be a dangerous offender unless it is satisfied by the evidence that there is a reasonable expectation that a lesser measure (i.e. either a penitentiary sentence of at least 2 years coupled with a long-term supervision order not exceeding 10 years or an appropriate sentence for the offence) will adequately protect the public against crimes of murder and a serious personal violence offense, it is necessary to consider what a "lesser measure" means and whether there is a "reasonable expectation" that such a "lesser measure" (i.e. a long-term supervision order) will protect the public against the crime of murder or a crime of serious personal injury. It is equally necessary to consider whether the offender has shown a pattern of repetitive behaviour (of which the offense for which he or she has been convicted forms a part) which shows a likelihood of the offender causing death or injury to other persons or inflicting severe psychological damage on them. In their evidence and psychiatric reports, which I shall consider, both Dr. Pearce and Dr. McMaster addressed these issues. Their expertise on these questions and a consideration of their evidence are crucial to a determination of the issues before this court.

14In R. v. Little, (ONCA, 2007 ONCA 548 (CanLII), 225 C.C.C.(3d)20), Cronk J.A., speaking for the Ontario Court of Appeal noted that "the overriding purpose of the dangerous and long-term offender regimes is the protection of the public", the court on a dangerous offender application being required "to balance the liberty interest of an accused with the risk to the public safety that will arise on the release of the accused into the community." This balancing act, the Court stated, was "informed" by a fundamental principle which it set out as follows:

"In a contest between an individual offender's interest in invoking the long-term offender provisions of the Code and the protection of the public, the latter must prevail. This accords … with the intention of Parliament as expressed in the dangerous and long-term offender provisions of the Code, and in the Corrections and Conditional Release Act." (see paragraph 70)

15"The requisite judicial inquiry on a dangerous offender application"… the Court wrote in Little, was concerned with "whether the sentencing sanctions available under the long-term offender provisions of the Code are "sufficient to reduce the offender's threat to an acceptable level". The determination of whether an offender's risk could be reduced to an acceptable level required, the Court said, consideration of all factors including "treatability that can bring about sufficient risk reduction to ensure protection of the public." Importantly, the Court noted, "this does not require showing that an offender will be "cured" through treatment or that his or her rehabilitation may be assured. What it does require, however, is proof that the nature and severity of an offender's identified risk can be sufficiently contained in the community, a non-custodial setting, so as to protect the public." (see paragraph 42, also cited in R. v. Dorsey)

16The focus, then, of inquiry in both a dangerous offender and a long-term offender application is protection of the public. It is not that the sentencing principles enunciated in section 718 of the Criminal Code are not given consideration, but that the overriding consideration in such applications is the imposition of a sentence which will protect the public. (see in this respect R. v. Lyons (1987) 2 S.C.R. 229; R. v. Jones (1994) 1994 CanLII 85 (SCC), 2 S.C.R. 229 and R. v. D.V.B. (2010) O.J. 1577 (C.A.))

17Before turning to an analysis of the expert and other evidence presented at the hearing and determining how it applies to D.S. and a consideration of the appropriate sentence to impose on him, I will first turn to a brief review of D.S.'s personal and criminal history.

D.S. Personal and Criminal History

18D.S. was born on […], 1983; he will soon be 31 years old. The evidence adduced at the hearing revealed that he has a lengthy criminal record replete with many acts of violence. His violent predisposition first came to the court's attention in 1998 when, at the age of 15, he was convicted of threatening to kill his sister. At that time, D.S.'s mother was concerned enough about his behaviour to take the threat made by him against his sister very seriously.

19One of D.S.'s earlier victims, a youth by the name of R. G., told police that he believed D.S. was "crazy". R.G. said that he was afraid of D.S. who, he also maintained, did not know where to stop when committing an assault. While R.G.'s comment about being punched out 20 times in the past by D.S. was likely an exaggeration, there is no denial that the attack on R. G. in May 1999 gave him reason to believe that there was something out of the ordinary in D.S.'s behaviour. D.S.'s attack on R.G. left him with a swollen nose, a cracked tooth and two black eyes. On the occasion which brought him and D.S. before the court, R.G. was left with little memory of what had happened to him at D.S.'s hands.

20There followed in D.S.'s case, and specifically in 1999, 2000, 2003 (3 assaults), 2004, 2006 and 2008, a number of convictions for assault, ranging from the lesser variety to the very serious kind. These assaults earned D.S. time in a youth facility as well as in the adult correctional system.

21Of particular note in D.S.'s record were the three assaults committed by him against his common-law partner, M.E., in the period between 2003 and 2006. In the incident leading to his 2006 conviction, D.S. was found guilty of both assaulting and forcibly confining M.E.. Even today his description of her indicates a total lack of sympathy for her, despite the fact that she was the mother of his two children. The fact that his relationship with her was replete with domestic violence on his part, with abuse by him of alcohol and drugs and that M.E. lost her children to the care of the Children's Aid Society does not seem to concern him very much. He seems unable to express any remorse for his violent conduct towards her or empathy for her because of the consequences of his abusive conduct towards her.

22When asked about these and other assaults committed during his twenties, the best D.S. could offer by way of an explanation was to describe his behaviour as the result of his immaturity, his lack of experience, his penchant for anger and his drug and alcohol addiction, as well as the alleged provocation offered to him by the victims of those assaults.

23When being assessed by the authorities at Kingston Penitentiary during his stay there in the period between 2008 and 2010, D.S. denied his responsibility for prior criminal assaults, alleging either that he had taken the blame for someone else with respect to the most serious of his offences (see Addendum to Dr. Cimbura's Psychological Risk Assessment, dated February 12, 2009, filed as Exhibit 1, Tab 26) or else that the process leading to his convictions had been flawed. His response to his last conviction (the index or predicate offence before this court) was to accuse his female victim, C.F., of arranging to have him assaulted, with no sympathy whatsoever for her injuries. He in fact made the rather incredulous allegation that it was C.F. who had instigated this episode, and not himself, in order to lay the basis for a claim to the Criminal Injuries Compensation Board. The ferocity of D.S.'s attacks on his victims, including his threats to seriously harm them and his inability to exercise any element of control in the course of those assaults is a common thread running through his record of convictions.

24By 2007, D.S.'s continuing assaultive conduct had earned him a penitentiary sentence of 43 months. He received this sentence for committing an aggravated assault on Clinton Haggert. Clinton Haggert was at that time a fellow inmate of D.S. at the Sudbury District Jail. The 15-minute beating inflicted on Clinton Haggert caused him to suffer a ruptured spleen, a life-threatening injury. This organ had to be removed within a few days of the attack. This violent and unprovoked attack was inflicted on someone described by D.S. as a friend, with the assistance of another inmate, Reginald Heffern. The occasion for this violent incident was nothing more than Reginald Heffern's opportunity to inflict a "good-bye" beating on Clinton Haggert. When later charged for his part in this offence, D.S. not only denied any participation in it, but he also attempted to cover up Reginald Heffern's part in it. The violence inflicted on Clinton Haggert was highly opportunistic. While not apparently triggered by a dislike of Clinton Haggert, D.S. later suggested to Dr. McMaster that the victim had been serving time for the commission of a sexual assault at the time of the attack on him. What is notable about this offence is the unrestrained manner (absent all normal behavioural constraints) in which D.S. delivered his kicks and punches to Clinton Haggert's back, thereby rupturing his spleen. It was as if, once unleashed, D.S.'s latent anger was compelled to vent itself until sheer physical exhaustion alone brought it to a close.

25The assault on C.F. in February 2011 (the index offence) clearly falls into the pattern of persistent, aggressive behaviour evidenced in D.S. earlier assaults. The evidence in that matter established that D.S.'s attack on C.F. was unprovoked and inflicted on her with the same kind of fury noted in his previous assaults on other victims. At the time of his assault on C.F., D.S. had been drinking, although he was under a court order not to do so. He got into a couple of altercations with third parties at a bar earlier on the evening of the attack. Fortunately for C.F., D.S. was wearing soft footwear on that occasion. Consequently, his kicks to her face and head did not inflict on her as much damage as would otherwise have been the case had he been wearing hard shoes or boots. As with the other assaults committed by him, it appears that his attack on C.F. ended once his anger had vented itself. Here again, we are able to witness his lack of control once his anger is triggered, regardless of the impact on his victim. As in other, similar assaults, there subsequently followed an attempt by D.S. to justify his anger by demeaning his victim. What D.S.'s victims have in common is that they, in his eyes at least, seemed to have merited the violent conduct he visited upon them.

The Gladue Report: D.S.'s Interest in and Commitment to Native Culture and Values

26During the past 15 years, D.S. has spent much time in custody. When incarcerated, even as a young person, he has been attracted to native cultural and spiritual programmes offered in custodial institutions. It was clear from a number of correctional services witnesses connected with him, in particular those at the Sudbury District Jail, that during his time in custody, D.S. identified himself as a native person.

27While D.S. maintained in his evidence that he had grandfathers who were native persons, his mother, G.M., testified at the hearing that her involvement and that of her children with the native community and culture was extremely limited. The closest ancestral connection she had with the native community, she testified, was through her great-grandmother, D.S.'s great-great-grandmother. She made no mention whatsoever of D.S. having native grandfathers.

28Notwithstanding, however, the fact that D.S. does not appear to have much native ancestry or previous connection with the native or Metis community, he has been undeniably attracted to native culture and spirituality and participated in it when incarcerated. In R. v. D.B. (2014) 2013 ONCA 691 (CanLII), 119 O.R.(3d) 11, the Ontario Court of Appeal criticized the lower court for failing to properly apply Gladue principles in sentencing the accused. In the case before it, a 40-year-old offender pled guilty to sexual interference and to sexual assault of a 14-year-old girl with whom he was in a trust relationship. Finding that the court below had failed to appreciate the almost total lack of connection by the offender with his native culture, the Court declared that the sentencing judge ought not to have given consideration to his native ancestry but rather should have focused on the accused's moral culpability and imposed on him a sentence which reflected the sentencing principles of denunciation and deterrence. The accused, the Court maintained, had not been raised in circumstances giving rise to the need to apply the considerations which the Court had enunciated in R. v. Gladue (see R. v. Gladue, (1999) 1999 CanLII 679 (SCC), 1 S.C.R. 688). I do not believe that the Court was saying here that adherence or apparent adherence to native culture and spiritual values by a non-native offender or a non-practicing native offender could not be the object of judicial consideration for sentencing purposes in a case like the present one. What it did appear to say was that for a sentence to be informed by Gladue principles, there had first to be established a "tie" (see paragraph 12) between those principles, the offender and the offence and, having established one, the court still had a duty to give appropriate weight to the offender's moral culpability in sentencing him or her for the offence he or she had committed.

29Suspecting that his connection to native culture and spiritual values was not strong, but wishing nevertheless to better understand D.S.'s makeup and his commitment to it, I thought it useful to order a Gladue report in this matter. The purpose of this report, from my point of view, was to obtain a better understanding of D.S.'s commitment to native culture and spirituality in order to be better able to assess its possible impact on his present and future rehabilitation as well as his ability to control those forces within his personality which have led him to commit many violent offences. What is clear, though, in his history and, in particular, his recent history, is that once he is out of custody, D.S.'s interest in native culture and spirituality seems to wane, if not to disappear totally. This does not, arguably, change the fact that his interest in native culture and spirituality is long-standing and that it may have had some influence on his recent ability to control his aggressive behaviour while in pre-sentence custody.

30In her report (filed as Exhibit 20 and dated March 25, 2014) UCCMM Justice Gladue caseworker Marilyn Debassige confirmed that during periods of incarceration, D.S. has participated in a variety of native programs, activities and counseling. These activities have included participation in sweat lodges, drumming circles, talking circles, smudging, pipe-smoking and speaking to native elders.

31Both D.S. and his mother, G.M., indicated to Marilyn Debassige that D.S. had had a happy childhood. A closer examination of the available evidence, including that found in his pre-disposition and pre-sentence reports filed (see Exhibit 1, Tabs 19, 20, 21) suggests, however, that this was not the case and that his childhood was not as happy as they suggested. These reports indicate that in the first few years of his life, his father, P.S., was abusive and addicted to alcohol. It is well recognized by those working in the child protection field that continued exposure of an infant to domestic violence, parental alcoholism, an unstable home environment and similar factors has long-term effects on that infant's emotional and psychological stability. It is not unlikely, then, that the early turbulence experienced by D.S. during his infancy may have been a major factor which eventually led to his alcohol and drug abuse during his childhood and early adolescence. According to D.S., he started abusing drugs and alcohol from an early age, possibly as early as nine years of age. Having been diagnosed early on with attention deficit hyperactivity disorder, he was prescribed Ritalin (which he refused to take). As is not infrequently the case with young persons who refuse to take their prescribed medication, his use of alcohol and marijuana at an early age may have been an attempt to self-medicate. D.S. admits that his addiction problems were very much connected with his early criminality. This early criminality, as we know, early took on a violent tone. It is reasonable to conclude, then, that D.S.'s problems have deep roots, some of these probably being found in his exposure to family violence and parental alcoholism as an infant.

32The Gladue report caseworker was asked to obtain information about D.S. from the Native Brotherhood at Kingston Penitentiary. Unfortunately, no significant information was obtained by her in this respect. It must be recalled here that while D.S. initially belonged to the Indian Brotherhood during his stay at Kingston Penitentiary, he was suspended from the Brotherhood in May 2009 for participating in an assault on a fellow, Indian inmate. Although the evidence is not perfectly clear in this respect, one can reasonably conclude that he was expelled from membership in the Brotherhood for his failure to control himself in a manner consistent with native culture and spirituality.

Declaration

33As noted earlier, section 753(1) of the Code stipulates that if the evidence at a dangerous offender hearing establishes that the offender meets the criteria set out in that section defining who is a dangerous offender, the court shall declare that the offender is a dangerous offender. A review of the evidence, including D.S.'s criminal record and the various reports submitted with respect to that record, clearly establishes a pattern of repetitive behaviour, which includes the offence for which he is being sentenced, which shows a failure to restrain his behaviour and the likelihood that this behaviour will in the future cause death or injury to other persons or inflict on them severe psychological damage. In D.S.'s case, that behaviour involves repeated acts of physical violence and aggression committed against others since he was 15 years of age. Common to many of these assaults is the emotional and apparent psychological consternation of the victims resulting from the unrestrained nature of D.S.'s attacks on them.

34I find that D.S.'s behaviour, commencing at the age of 15 and ending with his assault on C.F., constitutes a pattern of persistent, aggressive behaviour which shows a substantial degree of indifference on his part to the reasonably foreseeable consequences to other persons of that behaviour. I also find that D.S.'s behaviour during the course of the offence committed by him against C.F. was of such a brutal nature as to compel the conclusion that his future behaviour is unlikely to be inhibited by normal standards of behavioural restraint. It should be noted, here, that D.S.'s unprovoked attack on C.F. occurred while he was subject to a section 810.2 recognizance under the Criminal Code and that he had entered into this recognizance but one-half year earlier, at the time of his release from penitentiary after fully completing a sentence for aggravated assault on Clinton Haggert. The unrestrained nature of his aggressive behaviour towards Clinton Haggert and others before him therefore shows a lack of normal behavioural restraint on his part going back as far as to his teenage years. Unchecked, his future behaviour is unlikely to be inhibited by normal standards of behavioural restraint exercised by the majority of persons in the community. In coming to this conclusion, I have considered the whole of the evidence brought before me in this application and, in particular, the psychological and psychiatric evidence introduced by both the Crown and the Defence. For these reasons, then, I declare that D.S. is a dangerous offender as defined by section 753 of the Criminal Code of Canada. I will now turn to that evidence.

The Evidence

Earlier Psychological Reports

41D.S.'s release from Kingston Penitentiary would ordinarily have occurred on or about October 20, 2009. By the fall of 2009, however, his progress in addressing his addiction and violence issues was not deemed sufficient to permit him to be released into the larger community, even to a halfway house or a community correctional center. So concerned, in fact, was the National Parole Board about the likelihood of his violent recidivism that it refused to release him until the expiry of his warrant of imprisonment on August 27, 2010.

42During his stay at Kingston Penitentiary in the period between 2008 and 2010, D.S. was assessed a number of times. His first assessment (see Exhibit 1, Tab 25) was prepared by Dr. Jacqueline Cimbura, a psychologist retained by Corrections Canada. In her assessment, Dr. Cimbura noted (see page 4) that D.S. provided "no overt evidence of thought disorder or unusual behaviour and no evidence of any psychotic symptomatology." Her actuarial testing, however, indicated to her that D.S. (see page 6) was "in the high range for general recidivism and in the high - moderate to high range for violent recidivism when all the variables are considered." Noted Dr. Cimbura, "As per the SARA [Spousal Assault Risk Assessment guide], his risk to commit future acts of domestic violence is high." On the basis of her testing and information, Dr. Cimbura concluded that "any consideration for an early release at this juncture would be entirely premature."

43In an update assessment prepared on February 12, 2009 Dr. Cimbura noted that D.S. had offered to her that he was not guilty of the offence which had caused him to be sent to Kingston Penitentiary (i.e., the assault on Clinton Haggert) and that with respect to some of his past offences, he had been a victim of circumstances. In Dr. Cimbura's opinion, there was nothing obtained from the current assessment to suggest that her earlier actuarial estimates of risk in October 2008 were no longer valid. She still found D.S. to be in the high range for general recidivism and in the high - moderate to high range for violent recidivism when all the variables were considered. In addition, she confirmed her opinion that his risk to commit future acts of domestic violence was high and that his risk levels generally would be increased by abuse of substances.

44D.S. was assessed a final time at Kingston Penitentiary in June 2010 by Dr. Ray Yokubynas, another psychologist retained for that purpose by Corrections Canada. Noting that D.S. was being considered for a pre-release update, Dr. Yokobynas reported that D.S.'s behaviour while incarcerated at Kingston Penitentiary had been of some concern. He observed that D.S.'s assault on an inmate with a group of other inmates mirrored his index offence (i.e. the assault on Clinton Haggert). While he was registered for the Family Violence Prevention Program, Dr. Yokobynas noted, it was unlikely he would be able to complete that program prior to his warrant expiry date.

45When discussing the matter of available risk considerations, Dr. Yokobynas stated that there were three aspects to risk assessment. These included (1) an appraisal of historical variables (not generally susceptible to change over time); (2) an appraisal of dynamic risk (an appraisal of variables which were susceptible to change through treatment or other interventions); and (3) actuarial projections of risk to reoffend (which involved elements of both static and dynamic risk factors). Noting the actuarial tools commonly used in assessment of violent risk - the PCL-R (the Psychopathy Checklist - Revised), the SIR (the Statistical Information on Recidivism scale) and the VRAG (the Violence Risk Appraisal Guide), Dr. Yokobynas opined that, "Risk predictions should endeavor to incorporate actuarial projections, as the research literature has shown that such measures predict risk more accurately than clinical judgment alone" (see Exhibit 1, Tab 27, page 3).

Dr. Pearce's Evidence and Report

46In his report dated October 18, 2012, Dr. Pearce carefully reviewed D.S. personal, criminal and psychological history. Based on his interview with D.S. and a consideration of a vast amount of information made available to him, Dr. Pearce stated that it was his opinion that D.S. was not suffering from a major mental illness, such as schizophrenia or bipolar affective disorder. While not specifically stating that D.S. suffered from a substance abuse disorder, the definition of substance abuse disorder in the DSM-IV-TR suggested, he found, that D.S. was to be diagnosed with that disorder. (see page 39 of the report.)

47Turning to an examination of D.S.'s character, Dr. Pearce stated that personality traits are ways of interacting with one's environment and that when those traits are maladaptive and inflexible and cause social or occupational dysfunction, then a personality disorder is said to exist. (see page 39) On the basis of the evidence available to him, Dr. Pearce concluded that D.S. met the criteria for early onset conduct disorder by the time he was an adolescent. He defined conduct disorder as a disorder applying to individuals who had a repetitive and persistent pattern of acting in a manner "in which the basic rights of others or major age - appropriate societal norms or rules are violated." A conduct disorder, Dr. Pearce maintained, was the necessary, but not sufficient precursor to an adult diagnosis of antisocial personality disorder. (see page 40) On the basis of D.S.'s history, Dr. Pearce stated that, in his opinion, D.S. met the criteria for a diagnosis of antisocial personality disorder. The essential feature of that disorder, Dr. Pearce noted, is "a pervasive pattern of disregard for, and violation of, the rights of others, occurring since the age of 15, as indicated by three or more of a number of factors among which are failure to conform to social norms, deceitfulness, impulsivity, irritability and aggressiveness, reckless disregard for the safety of self or others, consistent irresponsibility and lack of remorse. (see pages 40 - 41) Discussing the behaviour of such individuals, Dr. Pearce noted that individuals with antisocial personality disorder "may blame the victims of their offenses for their fate, may minimize the harmful consequences of their actions, or may simply indicate complete indifference. Such individuals may also be irresponsible and exploitative in their sexual relationships. They may have a history of many sexual partners and may never have sustained a monogamous relationship." At present, according to Dr. Pearce, very little treatment was available for individuals with antisocial personality disorder, such treatment as there was focusing primarily on anger management training, social skills training and vocational training.

Risk Assessment

48Moving on in his report to risk assessment, Dr. Pearce stated that scientific research had consistently shown that "actuarial methods of risk assessment are the most accurate", providing probabilistic estimates of risk, based solely on empirical established relationships between predictors and the outcome of interest. (see pages 42 - 44) The probabilistic estimate of risk, he stated, indicated the percentage of people with the same score, on a given metric or risk assessment tool, who would be expected to reoffend within a defined period of opportunity.

49Among the best of actuarial methods of risk assessment, he maintained, were the STATIC- 99R, the Violence Risk Appraisal Guide (the VRAG) (for non-sexual, violent risk assessment) and the Sex Offender Risk Appraisal Guide (the SORAG). The SORAG and the VRAG, he noted, incorporated the Psychopathy Checklist – Revised (PCL-R). The work done by Dr. Robert Hare with respect to the PCL-R, Dr. Pearce, maintained, has greatly enhanced our understanding of psychopathy. The PCL-R was, in his opinion, the gold standard for the measurement of psychopathy. Scored on a continuum of 0-40 points representing a conceptualization of the prototypical psychopath, "scores above 25 were felt to represent a taxon measure." Of note, Dr. Pearce observed in his report, that the PCL-R was not a risk assessment tool in and of itself but might be "informative with respect to an individual's risk of reoffending." (see page 42)

50In order to estimate D.S.'s likelihood of future violent re-offending, Dr. Pearce scored him on the PCL-R, the VRAG and the HCR 20. He described the HCR 20 (see page 43 of his report) as "a 20 item Structured Professional Judgment (SPJ) risk assessment tool generally employed to assess the risk of future violent behaviour in criminal and psychiatric populations".

51Dr. Pearce gave D.S. a score of 31 of 44 with respect to the PCL-R. This, he stated, placed him "on the 88th percentile with respect to a reference sample of North American male incarcerates." This meant, he explained, that D.S. scored higher than 88% of those individuals at risk to engage in violent behaviour in the future. In his view, D.S.'s score of 31 met the criteria for a diagnosis of psychopathy which, he stated, was "considered a negative prognostic indicator." This score (the PCL-R) was classified as high and, noted Dr. Pearce in his report, "it would be substantively predictive of future recidivism (general and violent) in and of itself. (see page 43).

52Commenting on D.S.'s VRAG score of +22, placing him in BIN 8 of 9 ascending groupings (Bins), Dr. Pearce commented that this was a high score. In his opinion, this score was "suggestive of a high risk of future violent recidivism." (see page 43) Individuals who had a similar score, he maintained, recidivate violently at a rate of 82% over 10 years of opportunity in the community.

53On the HCR-20 test, Dr. Pearce reported that D.S. had scored 34 out of a possible 40 points (the results assuming that he was soon to be released into the community). This was, he observed, "a high score and suggests a high risk of future violent behaviour, absent significant interventions." (see page 43).

54According to Dr. Pearce, in addition to assessing the probability of future risk, risk assessment also implied dealing with related issues such as imminence, frequency and severity of re- offending. Assessing these factors, he explained, was done through clinical judgment alone. In the case of D.S., he wrote, the latter issues were live ones given his past involving substance abuse, impulsivity and underlying personality disorder/psychopathy. Given his pattern of offending, Dr. Pearce remarked, "the possibility that he may again commit serious assaults remains of substantial concern." (see page 44) Taking into account the actuarial and clinical risk assessments available to him, Dr. Pearce concluded that D.S. was "in a moderate to high risk category for violent recidivism." In conclusion, Dr. Pearce gave it as his opinion that, from a purely psychiatric perspective, D.S. met the statutory test for the dangerous offender designation set out in the Criminal Code. Based on his test results, it was his opinion that D.S. was likely to reoffend violently, that he was indifferent to the reasonably foreseeable consequences of his behaviour and that he had manifested indifference to the reasonably foreseeable consequences of his behaviour.

Long-Term Offender Status

55Having dealt with D.S.'s status as a dangerous offender, Dr. Pearce concluded his report with a consideration of whether D.S. might fit the psychiatric definition of long-term offender. This definition would, he believed, be applicable to an offender if that offender presented with a substantial risk of re-offending and there was a reasonable possibility of eventual control of that risk in the community. "Reasonable possibility of eventual control of the risk in the community", according to Dr. Pearce, "does not suggest zero-tolerance for any offending behaviour but rather harm reduction with respect to serious offending." (emphasis mine)(see page 45). Whether, from a psychiatric perspective D.S. met that criteria, Dr. Pearce offered, "...hinges on whether he could be considered treatable and whether such treatment offered any hope that his risk could be managed within the community both while under supervision (and subject to an LTSO) and after the expiry of a long-term supervision order."

56Whether it was possible for D.S. to do what was necessary to eventually control the high risk of harm his condition presented to the community, Dr. Pearce stated, depended on a number of factors. First and foremost, he noted, was the likelihood of D.S.'s response to treatment and supervision. Once this was known, he continued, "one can then look to the individual to see whether there is any reason to be more or less optimistic regarding that specific individual's likelihood of benefiting from treatment and/or supervision in a manner that reduces recidivism." (see page 45)

57Looking at D.S.'s diagnoses and, specifically, his severe and treatment-resistant substance abuse disorder, as well as his personality disorders, Dr. Pearce was not optimistic about the likelihood of D.S.'s successful treatment (see page 46). Noting the severity of his substance abuse disorder and his consistent return to the use of alcohol in particular, despite his earlier participation in an alcohol treatment program while in Kingston Penitentiary, Dr. Pearce was dubious about D.S.'s future ability to be compliant with the medication necessary for him to maintain sobriety. He noted the high relapse rate in individuals with "heavy, chronic substance use patterns and the fact that such individuals tend to be less compliant with treatment and have a more guarded prognosis than less serious substance abusers." (see page 45)

58Dr. Pearce was not more optimistic with respect to D.S.'s future ability to deal successfully with his personality disorder issues (i.e. his psychopathy and his antisocial personality disorder). Recalling that his PCL-R score was over 30, he believed that D.S. was "less likely to "burn out" as he aged. D.S. was, in his opinion, "several decades away from burning out in terms of his proclivity towards violence…" (see page 46). While it was not clear either in his report or in his testimony on what basis he had reached this conclusion, Dr. Pearce's opinion here may well have been based on his structured professional judgment. In this matter, Dr. Pearce was dealing with the psychiatric consideration that as someone with psychopathy ages, he or she will simply exhaust some of the energy or force required to engage in violent conduct. In his report, which I shall review next, Dr. McMaster discusses this concept and the evidence in support of it.

59Addressing D.S.'s previous response to treatment and his current motivation for treatment, Dr. Pearce observed that D.S. had often participated in treatment but that his "engagement" had not lead to meaningful change. What Dr. Pearce meant by the term "often participated" is unclear, as there was little to show that D.S. had actually participated in more than two such treatment programmes. The research literature indicated, he wrote, that in individuals with high psychopathic traits (like D.S.) response to treatment and supervision was poorer, with a greater likelihood of them either refusing treatment outright or dropping out of treatment altogether. (see pages 46-47) Again, it was argued by Dr. McMaster that the issue with D.S. seemed to be more one of putting into effect what he learned from such programmes rather than his refusal to participate in them.

60Of the opinion that D.S.'s response to previous supervision orders had been poor, which can be argued, Dr. Pearce found this to be a negative prognostic indicator. Giving him some credit for his previous employment in the community and also for some family support, Dr. Pearce concluded that there were "few reasons for optimism that this gentleman will be manageable in the community upon the expiry of an LTSO, given his varied and extensive criminal history, his substance use disorder and the presence of psychopathy," adding that "risk managing him even under the strict supervision provided by a CCC (a community correctional center) would likely be challenging." (see page 47).

61In reviewing Dr. Pearce's report, particularly that part dealing with long-term supervision orders, I was uncertain whether his assessment about the unlikely success of such an order was predicated upon the belief that D.S. might be soon released into the community without having to serve a further custodial term in a penitentiary setting. From a psychiatric perspective, he seems to have weighed the merits of an indeterminate sentence against those of a long-term supervision order. I will return to this issue later. I will now turn to Dr. McMaster's report.

Dr. Jeffrey McMaster's Evidence and Report

62In his defence, D.S. called Dr. Jeffrey McMaster. Like his colleague, Dr. McMaster is a recognized, forensic psychiatrist employed by the Center for Addiction and Mental Health (CAMH) in the Greater Toronto area. The evidence of these two medical witnesses was received as expert evidence by this court. Dr. McMaster's report is dated November 24, 2013. Although it was not made clear, the delay in proceeding with this sentencing may have had much to do with the difficulty of retaining Dr. McMaster's services.

63While substantially in agreement with his colleague's psychiatric assessment of D.S., Dr. McMaster was probably more optimistic than Dr. Pearce about the future treatment of D.S.'s personality and substance issues and the reasonable possibility of eventually controlling the substantial risk for violence posed by his behaviour in the community. In essence, while Dr. Pearce was pessimistic about the likelihood of successfully treating D.S.'s problems and reducing the risk of harm to the community flowing from them, Dr. McMaster thought that this could be accomplished within the time provided for under the sentencing options available to the court.

64After reviewing with D.S. his history of violently offending against others in the community, Dr. McMaster's report quickly moved on to a diagnosis. Before leaving this point, I note it is my impression that the disclosures D.S. made to Dr. McMaster about his past are blunter and more disturbing than those he made to Dr. Pearce when Dr. Pearce assessed him in the fall of 2012. D.S.'s disclosure to Dr. McMaster about his substance abuse as a young person seems more consistent with what is known about his adolescence and his life as a young adult. One of the few causes for a positive remark by Dr. McMaster with respect to these disclosures was the fact that on a number of occasions at least, D.S. had reported faithfully to his probation officer. Again, though, when speaking to Dr. McMaster, D.S.'s attempt to deflect blame and reject responsibility for his past conduct and crimes was both obvious and troubling.

65D.S.'s relationship with the women who have been attracted to him is disturbing. In particular, there are his 3 year relationship with M.E., his brief but violent relationship with C.F. and his last relationship with a previously supportive but now frightened N.C.. While I will not review what D.S. told Dr. McMaster about his aggressive conduct towards a number of male persons who had previously crossed his path, in his disclosure to Dr. McMaster, he chose to slough off his aggressive behaviour towards them, choosing to view it simply as horsing around and of no great consequence.

Risk Assessment

66Dr. McMaster diagnosed D.S. as suffering from substance abuse disorder, antisocial personality disorder and attention deficit hyperactivity disorder. While not specifically identifying D.S. as suffering or afflicted by psychopathy, it is clear from his review of D.S.'s PCL-R scores (see pages 23-24 and 33) that this was his conclusion with respect to that matter.

67In carrying out his risk assessment of D.S., Dr. McMaster stated that the question to be answered by the assessment process was essentially this: "Whether Mr. D.S. presents with a substantial risk of re-offense and if there is a reasonable possibility of eventual control of that risk in the community." In his view, both actuarial and clinical assessment of risk and the ability to manage that risk should be considered in making the final risk judgment and risk management plan. (see page 23)

68In assessing D.S., Dr. McMaster administered to him the PCL-R, the HCR-20 and the VRAG tests. These tests were also the ones used by Dr. Pearce in his assessment of D.S. and are the ones used by others working in the risk assessment field. Noting that individuals with a high degree of psychopathy are among the highest risk individuals in terms of violence and sexual recidivism, Dr. McMaster noted the importance of the PCL-R in the risk assessment process. Like Dr. Pearce before him, he scored D.S. at 31 points out of a possible 40 points used to assess the degree of severity of psychopathy present in subject individuals. D.S.'s score on the PCL-R, he observed, placed him at the 88th percentile of severity among a similar class of persons in the North American offender population at risk to violently recidivate.

69Discussing the process of actuarial assessment, Dr. McMaster cautioned that actuarial instruments which only use official data to determine "outcomes" may provide figures which are under - estimates of the actual rate of the possibility of violent and/or sexual re-offending. He offered too that actuarial risk assessments cannot specify the severity of violent re-offending. (see page 24) As I understood his point, it was that while the predicted actuarial risk for violent re-offending might be high, it could encompass the commission of violent offences of a less severe nature than those justifying a high level of concern. This should, I believe, be kept in mind when considering the evidence because what it means is that, though serious and of great concern, statistics and statistically based opinion do have their limitations and can lead to an incorrect or exaggerated view of a given situation.

70Turning to the Violence Risk Appraisal Guide (the VRAG), Dr. McMaster noted that the PCL-R was an important component of that test. Like his colleague, Dr. Pearce, he gave D.S. a score of between +21 and +22 on that test. He remarked that among the individuals enjoying a similar score, 76% violently re-offended within seven years of opportunity (opportunity being defined as full release or placement in a halfway house or minimum-security facility) while 82% re-offended violently within 10 years of such opportunity. He further indicated that of those individuals who were in Bin 8 (of a possible 9 Bins in an ascending degree of severity - see Dr. Pearce's report here) 76% re-offended violently within seven years of opportunity and 82% re-offended violently within 10 years of opportunity. (see page 25). These rates, he was careful to point out, also included threatening and simple assault. More importantly, Dr. McMaster pointed out that "of those receiving a raw score of 15 and higher on the VRAG, 46% recidivated in a "serious fashion (not a simple assault or a threat)." Of those who scored from +17 to +24, 41 % recidivated in a serious fashion within 7 years of opportunity", Dr. McMaster observing that these rates increased after 10 years as some of the individuals not counted at seven years had gone on to be convicted of serious violent offences within the overall period of 10 years.

71Turning to the matter of structured clinical judgment, Dr. McMaster reviewed D.S.'s HCR-20 test results. The HCR 20, he pointed out, was one of various assessment tools designed to complement actuarial risk assessment tools such as the VRAG and was not designed to provide absolute determinations of risk (my emphasis). Such tools contained both static and dynamic risk factors and assumed that risk was not entirely stable and could change as a result of various factors related to treatment, treatment compliance, protective factors and context. (see page 25) Whereas Dr. Pearce scored D.S. with a score of 34 points out of a possible 40 points on the HCR-20, Dr. McMaster's scoring ranked D.S. at 32 out of a possible 40 points. This test, Dr. McMaster remarked, was administered in a context inferring imminent release into the community absent any legal conditions. The final risk judgment Dr. McMaster derived from his testing was that D.S. "would represent a high risk if released to the community at this time" (my emphasis-see page 26). Based on D.S.'s HCR- 20 test results, Dr. McMaster concluded that his final risk assessment was that D.S. presented "as high risk of violent recidivism". (see also page 26)

72Addressing the matter of composite risk assessment, where he took into account both actuarial and professional judgment considerations as well as D.S.'s history of violence, the nature of that violence and the difficulty of providing treatment and supervision to D.S., Dr. McMaster concluded that not only was there a high risk that D.S. would engage in violence of some kind in the future, but that there was "a substantial risk that this violence will involve significant physical or psychological harm." (see page 26). Bearing in mind what he understood to be the criteria for determining whether an offender can be designated a dangerous offender, Dr. McMaster concluded that overall, from a psychiatric perspective, it appeared to him that the criteria for a dangerous offender designation had been met in D.S.'s case. (see page 27)

73In his report, Dr. McMaster considered the question of whether, other than an indeterminate sentence, there was a sentencing option available to D.S., which could be justified on psychiatric grounds and meet the statutory test of protecting the public. He had clearly made himself aware of section 753.1 of the Criminal Code and the possibility it provided for a long-term supervision order coupled with a penitentiary sentence. Dr. McMaster was also clearly aware of the control mechanisms embedded in a long-term supervision order and relevant sections of the Code and how such mechanisms could be used to control an offender subject to a long-term supervision order. Noting that it was for the court to determine whether D.S. merited a penitentiary term, Dr. McMaster reiterated that there was a substantial risk D.S. would reoffend in the future. In his mind, the issue left to be determined was whether there was a reasonable possibility of eventual control of the risk to violently re-offend D.S. posed to the community.

74Returning to D.S.'s VRAG test results, Dr. McMaster pointed out that while D.S. had been shown to be at high risk of committing a violent offence of some kind, he was "at relatively lower risk (my emphasis) of committing a serious violent offence (see page 28), the risk of committing a serious violent offence remaining, however, considerable. It was therefore, Dr. McMaster reasoned, for D.S. to demonstrate that the risk he posed to the community could be managed either by a determinate sentence or a determinate sentence coupled with a long-term supervision order rather than by the imposition of an indeterminate sentence.

75Dr. McMaster was cognizant of the principle that a hope treatment would be successful in controlling an offender's violent behaviour in the future or the existence of "some optimism" that an offender could be rehabilitated were insufficient reasons not to impose an indeterminate sentence because the court was not entitled to gamble on the safety of the community.

Risk Management

76Turning his attention to the issue of risk management, Dr. McMaster explained that risk is contextual and that risk depends on the treatment and supervision of an offender which is put into place. Having noted this, he went on to discuss specific factors which could assist the court to determine whether or not there was a reasonable possibility of eventual control of the high risk of violence D.S. posed to the community. Maintaining that management of risk was the issue to be determined when considering the imposition of a long-term supervision order and that the Criminal Code does not suggest zero tolerance for offending behaviour in such circumstances (my emphasis), Dr. McMaster opined that the relevant provisions of the Code rather suggest harm reduction to the extent that this is required to prevent a serious personal injury offense from taking place in the future. (see page 29) He further stated that in weighing or determining overall risk, those considering actuarial factors should bear in mind that "actuarial static risk assessments can be thought of as representing the maximum ceiling of risk for official offences (here, I think he meant to include serious personal injury offences), which could be lowered by the passage of time (i.e. increased age), or interventions, such as treatment and supervision. (see page 30). My understanding of this point is that the results of actuarial tests (such as the VRAG) predicting violent reoffending ought to be seen as representing a worst-case scenario. As a result of D.S.'s history of violence, his risk factors, and his supervision and treatment difficulties in the past, Dr. McMaster maintained, "high levels of risk management will be necessary to manage his risk, if he is released into the community" Dr. McMaster stated, "Mr. D.S. appears to be an individual in which intensive treatment in custody, (my emphasis) along with intensive supervision, and further treatment in the community, will be necessary to manage his risk" he concluded. (see page 30).

77Having come to these conclusions, Dr. McMaster outlined how D.S.'s high risk for violence in the community could be managed. Noting the need to apply RNR (risk, need and responsivity) principles, he summarized a number of D.S.'s "dynamic risk factors", among which were his antisocial personality disorder, his psychopathy, his substance abuse disorder, his lack of insight into his risk of violence to others, his poor coping methods and his lifestyle instability.

78The final matter considered by Dr. McMaster was the effect of aging on offenders who are at high risk to recidivate violently and the treatment for such persons. Noting that there was limited research in this area suggesting that risk of violence may decrease with age (see page 33), Dr. McMaster went on to review it. This research suggested, he said, that while certain aspects of a psychopathic person's characteristics (Factor 1 elements) do not change over the years, there were others characteristics (Factor 2 elements) associated with behavioural problems and criminal lifestyle which do decrease with age. There was, he explained, evidence that the established pattern of antisocial behaviour and dysfunctional lifestyle caught by Factor 2 elements was changeable with treatment (see page 34). Another study (see page 33), he commented, suggested that violent offending decreased with age for both psychopathic and non-psychopathic federal offenders incarcerated in a medium-security federal prison. That study suggested that high-scoring, psychopathic offenders committed more violent and nonviolent crimes than their lower scoring counterparts for about three decades, spanning late adolescence to 44 for nonsexual violent offenders. Offered Dr. McMaster:

"Numbers of non-violent criminal offenses committed by high PCL-R scorers had declined considerably by age 30-34. Numbers of violent criminal offenses committed by high PCL-R scorers declined but then rebounded (increased) in the late 30's before a major reduction was evidenced (my emphasis). Numbers of nonsexual violent criminal offenses committed by high PCL-R scorers remain well above the low PCL-R group until the age of 40 - 49, when the rates became similar (and actually lower for the high PCL-R group)."

79Noting that traditionally individuals with antisocial personality disorder and psychopathy have largely been viewed as untreatable, Dr. McMaster stated that in the last 10 years it has been argued that treatment may be effective for them. Explaining that for treatment to be effective, individuals participating in it must attend that treatment, participate in it, remain for the duration of it and receive the treatment that is appropriate (see page 34), he pointed out that such individuals tended to avoid treatment and were more likely to be removed from treatment or leave treatment prematurely.

80Dr. McMaster reviewed studies designed to determine whether treatment could reduce violence and criminal behaviour. Those studies, he related, had yielded optimistic results and showed that even with violent offenders, many with significant psychopathic traits, "risk reductions assessed during treatment were consistently linked to significant reductions in sexual and violent recidivism in the community." Even in the case of high-risk psychopathic offenders (like D.S.) Dr. McMaster noted, there were "significant reductions in violent recidivism in individuals with high levels of psychopathy who demonstrated positive therapeutic change." (see page 35)

Eventual Control of Risk

81Dr. McMaster concluded his report by acknowledging that D.S. appeared to be an individual at high risk of violence and that there appeared to be a substantial risk that this violence might be of a serious nature. Notwithstanding this conclusion, it was his considered opinion that there appeared to exist the possibility of eventual control of that risk in the community on an LTSO." (see page 35). Read in context, I do not believe that Dr. McMaster's use of the word "appear" prefacing his findings and his opinion suggests that he is tentative about or doubts his conclusions about D.S.'s substantial risk of violence and the control of that risk in the community. His report makes quite clear D.S.'s personal and criminal history as well as his character weaknesses and his current psychiatric condition. He had no illusions about where D.S. currently stands and the level of threat his condition presently poses.

82Commenting on D.S.'s history of violence, his risk factors and his history of difficulties with supervision and treatment, Dr. McMaster spoke of the need for "high levels of risk management" which he said would be necessary "to manage his risk, if he is released into the community." "Mr. D.S he noted, "appears to be an individual in which intensive treatment in custody, along with intensive supervision, and further treatment in the community, will be necessary to manage his risk." (see page 30)

83Assessing the reasonable possibility of the eventual control of the risk posed by D.S. in the community, Dr. McMaster stated that this depended on the existence and application of a number of factors particular to his case, including the delivery to and acceptance by D.S. of federal treatment based on RNR (Response, Need and Responsivity) Principles, his entry into the community under supervision at a community correctional center, providing to him a high degree of supervision, the continuation of treatment after entering into the community and, specifically, breaching him for minor infractions and using any relapses as an opportunity for further intensive treatment of his antisocial behaviour and criminal risk factors. (see page 36)

84Discussing the implementation of RNR principles in D.S.'s case, Dr. McMaster observed the risk principle indicated that the highest risk offender should be provided with the most intensive treatment and that, consequently, D.S. should be provided with intensive treatment and, specifically, "an adequate dose of treatment" which he requires. (see page 30)

85Addressing D.S.'s dynamic risk factors (not those factors incapable of being altered such as personality, impulsivity, learning disability, criminal history etc.), Dr. McMaster recommended ongoing cognitive behavioural therapy to address cognitive distortions contributing to his criminal behaviours as well as anger management therapy.

86With respect to D.S.'s substance "misuse" issues, Dr. McMaster recommended relapse prevention programming as well as monitoring, random urinalyses and residential treatment. He noted also that substance abuse may contribute to his risk of violence through impairment of judgment and intensification of anger. So too, he believed, would a number of other negative behaviours, including association with antisocial and criminal persons, the risk of an escalation in behaviour, decreased coping skills and lifestyle instability, decreased ability to work or pursue educational endeavours in a consistent, high-functioning fashion and the effects of intoxication leading to psychotic symptoms.

87To address D.S.'s poor coping methods and lifestyle instability, Dr. McMaster recommended that he live in as structured a lifestyle as possible to avoid placing his coping strategies under excess duress. This meant, he said, that D.S. should be encouraged to engage in significant long-term endeavours with respect to work, recreation and, ideally, housing and pro-social relationships and that, while doing so, he should keep himself as busy as possible.

88Dr. McMaster commented favourably on both D.S.'s work history, which he deemed an area of relative strength, and on his reporting (from time to time during the past 15years) to probation and parole officers. He might have acknowledged too his more collaborative and less oppositional approach to correctional officers over the past year and a half. While signaling these strengths, Dr. McMaster nevertheless insisted that D.S. had to give the greatest priority to the treatment of his substance abuse and anger management issues, stressing the need for him to avoid stressful work situations which could overwhelm his coping mechanisms and place him in circumstances which increased his risk. His release into the community, Dr. McMaster recommended, should be to a professionally supervised community correctional center or a secure residential substance abuse programme (see pages 30 and 31). Acknowledging D.S.'s high degree of psychopathy, Dr. McMaster stressed that "persistence and resilience on the part of treatment providers will also be required to ensure that he receives an adequate dose of appropriate treatment, noting that it was unclear if any treatment success would translate to success (no recidivism) in the community absent further external controls on his behaviour." (my emphasis-see page 32).

89Taking, then, into consideration D.S.'s history, the psychiatric test results and his professional, psychiatric experience, including his observations and conclusions with respect to the effect of age on the reduction of violent, psychopathic behaviour and risk of recidivism, Dr. McMaster concluded:

"Based on the extant empirical literature, a significant decrease in his risk would begin by about age 45. Therefore, the empirical literature suggests that an LTSO (if granted) should not expire before this time." (see page 36).

Analysis

90Care should be taken when considering the many recommendations made by Dr. McMaster with respect to D.S.. In deciding whether the risk of violent recidivism inherent in D.S.'s personality and makeup can be successfully managed in the community, the fact that his condition will require careful monitoring and supervision as well as many services over the next 10 to 15 years is not a reason to conclude that his eventual placement in the community is not the appropriate legal response at the present time. D.S. suffers from a high level of psychopathy and from antisocial personality disorder. It does not automatically follow that the best response in his and similar cases is the imposition of an indeterminate sentence. I would venture to say that he is likely to receive and benefit from more services following the imposition of a penitentiary sentence coupled with a long-term supervision order than he would receive if given a straight, lengthy penitentiary sentence. This must surely be in the interest of a society which prides itself on its tolerance and humanity and which will likely be more protected by the rehabilitation of a person with violent tendencies in the context of a long-term supervision order, replete as the latter is with punitive sanctions for any regressive criminal behaviour. It may be conceptually easier to argue in favour of the benefits to society and D.S. of an indeterminate sentence, but there does not seem to be available to us an analysis of the superior benefits of that approach in the case of D.S. and others with a similar profile. All the while, we must not lose sight of Appellate direction to opt for protection of the community if the determination of an appropriate sentence involves a clear choice between protecting society and D.S.'s rehabilitating and reintegrating an offender into society. The indeterminate sentence option does, to some degree, take the concern about how to deal with someone like D.S. away from the larger community and places it in the hands of correctional officials, who are then left to determine exactly what services are to be offered to him in order to rehabilitate and reintegrate him into society. While difficult, the court, as a legal, human institution must assess each case on its merits and, while giving priority to protection of the public, must still, even in sentencing a dangerous offender, not ignore the purposes of sentencing set out in section 718 of the Criminal Code. While tempting, it would be wrong to conclude that offenders with a psychopathic and antisocial personality should, in the normal course of events, be incarcerated for as long as possible in order to provide maximum protection of the public. A sentencing court must keep its attention focused on eventual control of such an offender's substantial risk to commit violent acts and objectively assess, on the basis of the evidence before it, whether there is the reasonable prospect of eventually controlling that risk within the time frame allowed by the criminal law.

91At the present time, D.S. is 30 years of age. In his report, Dr. McMaster appeared to favour the imposition of a long-term supervision order of 10 years. As noted earlier, he was clearly of the view that such an order should not expire before D.S. had reached the age of 45. Even after that time, he appeared to believe that there would still have to be some monitoring of D.S. in the community. As much as can be concluded from listening to his testimony and reviewing his report, Dr. McMaster did not foresee a reasonable possibility of controlling D.S.'s substantial risk to commit an act or acts of serious personal violence before he reached the age of 45. The conclusion which should be drawn from a review of Dr. McMaster's evidence is that he accepted the psychiatric necessity of keeping D.S. in custody until a long-term supervision order of 10 years could bring him to a point in time when his tendency for violence and the risk posed to the community by it had been mitigated by a "sufficient dose" of intervening treatment and the physically degrading effects of the passage of time on his body and his personality.

The Beginning of Change

92When one reviews Dr. Pearce's evidence and report, it is clear that he did not believe D.S.'s psychopathy and antisocial personality disorder and the threat that these conditions pose to the safety of the community could be successfully addressed outside the scope of an indeterminate sentence. Dr. Pearce was quite aware of the sentencing options available to the court in this matter. With what was obviously a very pessimistic view of D.S.'s condition, he did not appear to give much thought to whether aging and the administering of treatment programs would have a beneficial effect on D.S.'s penchant for committing acts of serious personal violence in the future. He did not believe that D.S. would avail himself of such programmes if he had the option of not doing so (this is obviously not the case at the present time). I believe that Dr. Pearce failed to consider the fact that programs in addition to the two which D.S. had taken while at Kingston Penitentiary while incarcerated there from 2008-2010 were available to D.S. if he were sentenced to a further period of custody. The fact that the two programmes he did take and complete were not successful in curbing D.S.'s violent tendencies and conduct does not mean that further programming would not have a beneficial effect on him. My judicial experience suggests that individuals with anger control and substance abuse problems often have to take programs specifically targeted at such problems more than once before their impact on them has some effect on their behaviour. While Dr. Pearce cannot be too strongly faulted for being dubious about new developments in psychiatry and, in particular, both the treatment of psychopathy and the effects of aging on that condition, I found his evidence wanting on these matters as well as on the question of how long it could reasonably take those charged with treating D.S. to help him to eventually control the substantial risk of violence demonstrated by him on past occasions.

93In considering this matter, it should be recalled that the dangerous offender regime established under Part XXIV of the Criminal Code has been found to be constitutional by the Supreme Court of Canada, offering as it does to an offender with respect to whom either a dangerous offender or long-term offender application has been brought, reasonable sentencing options and choices with respect that offender's constitutional rights and privileges. This being said, it would have been more probative had Dr. Pearce addressed the issue of whether, if and when administered by trained professionals, correctional and psychiatric programs presently available to offenders could impact on D.S.'s high risk to recidivate and commit further serious personal violence offences and, further, how long a period of treatment this might require.

94Testifying on the issue of long-term supervision, which he realized was time-limited, Dr. Pearce expressed his belief that he did not believe D.S. could adequately deal with his propensity to act violently within the maximum period provided under a long- term supervision order. While not specifying the time frame in which he offered this opinion, a review of Dr. Pearce's testimony suggests that the starting point for the long-term supervision order he was considering was the date of his testimony and not a date subsequent to the likely imposition of a further custodial term. When commenting on the possibility of releasing D.S. into the care of a community correctional center, Dr. Pearce was equally pessimistic, stating he was not sure if placement in such a facility could help correctional officials to adequately manage him and the substantial risk he presented to the public.

95D.S.'s criminal history is replete with serious, personal violence offences. He has taken a few correctional programs (including a moderate intensity violence prevention program and a substance abuse program) to address both his propensity for violent conduct and his abuse of drugs and alcohol. In the past, his response to custody and, specifically, his behaviour towards fellow inmates and correctional officers has reflected his antisocial personality disorder, his psychopathy and his substance abuse disorder. During the past 18 months, however, his behaviour in custody (he has now spent close to three years in pre-sentence custody) has undergone a noticeable change.

96Correctional officers and personnel who testified at the hearing, including Kevin Messenger, Shawn Kanerva, Robert Thompson, Maria Gorski and Keith Chapman noted that D.S. had participated in programming and had not caused their custodial institution and its staff a great deal of problems since at least December 2012. An incident at the Sudbury District Jail in late June 2012 clearly demonstrated an attempt on his part to moderate a violent situation involving other inmates. While, because of his difficult history, D.S. has been moved on more than one occasion during his presentence custody, correctional records failed to reveal much if any complaint about his conduct in the period after December 2012. It should be recalled here that while Dr. McMaster described D.S. as "learnable" during his time in custody, he also remarked that he had nevertheless failed to put into practice the principles learned in the programs and counseling he had taken there. While neither he nor Dr. Pearce commented on what was evidently a significant improvement in D.S.'s ability to control his violent impulses and behaviour, this was probably because their reports pre-dated this development or they were not made aware of it.

97While psychiatric evidence suggests that not much can be done to alter the static risk factors, such as character, impulsivity, personality defects, history, criminal record and the like, in the make-up of D.S. and others afflicted with psychopathy, Dr. McMaster and others working in the field of psychopathy appear to concur that an improvement through treatment in the dynamic risk factors in the make-up of such persons, (such as substance abuse, criminal association and conduct, lack of family and social support, lack of marketable skills, lack of employment, lack of permanent housing, learning handicaps etc.), will lower their risk to recidivate violently.

98It is my considered opinion that the conduct of D.S., while in pre-sentence custody, and specifically during the past 18 months, supports the conclusion that he is capable of controlling his violent impulses and nature if he is motivated to do so. This may be because he has now been in custody long enough for him to assess his situation and begin applying some of the principles, strategies and lessons he has learned over the many years he has spent in custody, in particular during the last 3 years. Even assuming a case scenario in which he has not learned much about his condition and how to control his propensity to act violently, we are nevertheless left with the realization that the lengthy pre-sentence custody he has served has acted as a powerful deterrent to a continuation of his previous, aggressive behaviour. I believe that D.S.'s conduct is a matter of choice and that the prospect of spending the rest of his life in custody as a result of his failure to bring his violent behaviour under control is now very clearly imprinted on his mind. Likewise, his substance abuse problem, which has often played a key role in his assaultive behaviour, is also a matter of choice. I believe that once it becomes clear to him that substance abuse is the trigger to much of his violent behaviour (although admittedly not all of it), he will get much better control of that behaviour. He still has not fully realized this fact and probably will not fully do so until he has had what Dr. McMaster has called a "sufficient dose" of treatment for those issues which beset him. He has really never been incarcerated long enough to allow sufficient time for him to participate in such treatment and integrate the principles learned into his day-to-day behaviour.

99While there is also less opportunity in some ways to act violently while imprisoned, it is equally true that there are also more opportunities in a custodial milieu to act in an aggressive and violent manner towards other inmates. It is well recognized that violent behaviour occurs on a frequent basis in the prison system. When determining, therefore, the question of whether D.S. is capable of eventually controlling his violent behaviour in the community, non-violent conduct in the atmosphere of a penal institution must factor greatly in the determination of the appropriate sentence to impose on him pursuant to subsection 753(4) of the Criminal Code.

The Sentence

100In the words of subsection 753(4.1) of the Criminal Code, the court must impose an indeterminate sentence of custody unless it is satisfied on the basis of the evidence adduced at the dangerous offender hearing that "there is a reasonable expectation that a lesser measure available under paragraphs (4 b) (i.e. a sentence of 2 years or more together with a LTSO not exceeding 10 years or [4c] a sentence for the index offence-here, the assault causing bodily harm on C.F.) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence." I believe that the evidence adduced at the hearing makes it abundantly clear that sentencing option (4c) is not appropriate and would not protect the public in this matter. While the process of change has begun with D.S., the time remaining under an appropriate sentence for his offence (the assault causing bodily harm to C.F.), after credit is given for pre-sentence custody, would be insufficient to allow him to satisfactorily deal with his violence and substance abuse issues. I also believe, on the basis of the evidence which I have heard, that there is a reasonable expectation that the lesser sentencing measure provided under subsection 753(4)(b) of the Code will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

101In light of the evidence adduced at this hearing, it would be appropriate to impose on D.S. for the offence of assault causing bodily harm on C.F. a sentence of ten years of custody, together with a long-term supervision order of 10 years. Bearing in mind section 719(3.1) of the Criminal Code and the fact that the offence of assault causing bodily harm on C.F. was committed while D.S. was bound by a recognizance, made pursuant to section 810.2 of the Criminal Code, I will allow D.S. a credit for time served in pre-sentence custody calculated only on a 1:1 day basis. This amounts to a credit of 3 years and 22 days, D.S. having remained in custody since his arrest on May 27, 2011. I will also impose on D.S. a sentence of 18 months custody for the three breaches of his 810.2 recognizance concurrent on each charge and concurrent with the sentence imposed on his conviction for the offence of assault causing bodily harm.

102I would remind D.S. that but for his much-improved behaviour while in pre-sentence custody, especially during the last 18 months, it would not have been unreasonable for me to conclude that an indeterminate sentence was the more appropriate sentencing option in this matter. By demonstrating that he is able to control his propensity for violence even while difficult in pre-sentence custody for a significant time, he has been able to persuade me that there is a reasonable expectation that a sentence other than a sentence for an indeterminate penitentiary term will adequately protect the public from the future commission by him of murder or a serious personal injury offence and that there is a reasonable possibility of eventual control of that risk in the community.

Released: July 22, 2014

Signed: "Justice A. L. Guay"