R v A.B., 2017 ONCJ 419

Ontario Court of Justice

Date: June 19, 2017

Court File No.: HAMILTON 14-10764, 14-10825

Between:

HER MAJESTY THE QUEEN

— AND —

A.B.

Before: Justice P.H.M. Agro

Heard on: December 29, 2014, January 31, 2017, February 2nd, 6th, 7th, 9th, 23rd, 27th, March 2nd, 3rd, 7th, 8th, 9th, 10th, April 24th, 25th, May 1st, 2nd, 3rd, 16th, 2017

Reasons for Judgment released on: Monday, June 19th, 2017

Counsel:

• Ms. J. McKenzie — counsel for the Crown
• Mr. J. Rosen and Ms. L. Daviau — counsel for the accused A.B.

Reasons for Sentence

Agro J.:

[1] Introduction

1Thirty five-year-old A.B. is the subject of this dangerous offender application, having entered pleas of guilty on 29 December 2014 to an aggravated assault and breach of probation, contrary to sections 268 and 733.1(1) of the Criminal Code of Canada.

2On 12 January 2015, the Crown filed an application to have Ms A.B. assessed pursuant to s. 752.1 of the Code. With the consent of the defence, it was ordered on 29 January 2015 that the assessment be conducted by Dr. Treena Wilkie of the Centre for Addiction and Mental Health. The assessment commenced on 17 February 2015 and the report made available on 16 May 2015.

3On 25 June 2015, the Attorney General for Ontario consented to initiate the dangerous offender proceedings, in accordance with s. 754 of the Code and filed the Notice of Application on 31 July 2015.

A. STATUTORY FRAMEWORK

4There is no dispute that the conviction for aggravated assault is a "serious personal injury offence" as defined in s. 752 of the Criminal Code and that the Crown has satisfied the other necessary prerequisites to a Dangerous Offender application.

5Under s. 753(1) of the Code, there are multiple routes to a dangerous offender designation.

6In this case the Crown relies on s. 753(1)(a)(i) the "pattern of repetitive behavior" and/or s. 753(1)(a)(ii), the "pattern of persistent aggressive behavior."

7It is mandatory to make the "dangerous offender" designation, if the s. 753 statutory elements have been proved; however, it is not mandatory to impose an indeterminate sentence. There is remedial discretion in s. 753(4), as to the appropriate sentence, but that discretion is constrained by s. 753(4.1).

B. OVERVIEW OF THE EVIDENCE

1) Applicable General Principles

8A dangerous offender proceeding forms part of the sentencing process and the rules of evidence relating to sentencing govern a dangerous offender application. See: R. v. Wilband, [1967] 2 C.C.C. 6, at 9-10 (S.C.C.); R. v. Jones (1994), 89 C.C.C. (3d) 353, at 394, 396 and 398 (S.C.C.); R. v. Johnson (2003), 2003 SCC 46 , 177 C.C.C. (3d) 97, at para. 23 (S.C.C.)

9Hearsay may be admitted at a sentencing hearing, provided it is "credible and trustworthy" and provided the Crown takes on the burden of proving any aggravating factors that are disputed to the normal criminal standard of proof beyond reasonable doubt. See: R. v. Gardiner (1982), 68 C.C.C. (2d) 477, at 514 (S.C.C.); R. v. Albright (1987), 37 C.C.C. (3d) 105, at p. 111 (S.C.C.).

10The common law rules are now codified in ss. 723 and 724 of the Criminal Code.

11There were multiple volumes of records tendered by the Crown. To the extent that those records were prepared contemporaneously by professionals and public servants carrying out professional, statutory or public duties, I am satisfied that those records are "credible and trustworthy" in that sense.

12Parts of certain records are less reliable and are not entitled to any weight. For example, police synopses of some of the offences for which convictions were entered against Ms A.B. form part of the records considered by Dr. Wilkie in her assessment report. The facts set out in a police synopsis at the time of arrest do not always reflect the facts that are later proved at trial or admitted on a guilty plea. The synopses are reliable only to establish the date they were made and Ms A.B.'s date of arrest.

13I do not rely on them to any extent if there are transcripts available or an agreed statement of fact relied on in support of the convictions to which they relate.

14So too with certain correctional records containing complaints made by other inmates about Ms A.B. or allegations of misconduct.

15There is evidence before me that certain institutional records are incomplete, or contained unverified material, or contain information that may be subject to interpretation absent testimony from the author of the document.

16I do not rely on such documents to establish anything other than the dates on which they were made and the fact that an allegation was made. They are received for those limited purposes. They are untested and cannot be used to prove the facts in support of the allegation.

17Notably, findings of misconduct are based on a balance of probabilities. Institutional misconducts, not subject to criminal prosecution and conviction do not assist in proof of a pattern.

18On 2 October 2016 Ms A.B., while in general population, was in the day room at the Central East Correctional Centre with other inmates. Closed circuit cameras captured her punching another inmate. That video was played for the court. There was no audio to that recording. A criminal charge of assault has been laid in that matter but it remains outstanding.

19I do not include that incident in my analysis of the evidence beyond noting that it was documented. It remains unproven and without context. To include it in any analysis for s. 753(1)(a) purposes would require a trial within this application.

20Admissions Ms A.B. made to both Dr. Wilkie and other psychiatrists or psychologists who have conducted clinical interviews with Ms A.B. are both credible and trustworthy. I will consider whatever Ms A.B. said to those professionals. She was well aware of the purpose of the clinical interviews and the use that would be made of her statements to Dr. Wilkie and others.

2) The Predicate Offence

a. The Acknowledged Facts

The facts as acknowledged are these:

21On 4 November 2014, A.B., in the company of two males went to a rooming house on Elgin Street in this city. Uninvited, she forced her way into an apartment where Kimberley Clairmont was visiting her boyfriend and two other male residents of the unit.

22Ms A.B. confronted Clairmont regarding an incident between them that had occurred some 3 to 4 weeks earlier. In so doing, Ms A.B. stabbed Clairmont four times, resulting in puncture wounds to Clairmont's neck, chest, bicep and armpit.

23Clairmont was treated at hospital where it was determined she also suffered a rib fracture on the right side, a laceration of her right lung and a moderate hemopneumothorax.

24At the time of this assault, Ms A.B. was on probation following the custodial portion of a sentence for a robbery conviction registered on 27 February 2014. She had failed to report to her probation officer on two occasions in October 2014 and there was an outstanding warrant for her arrest.

b. Additional Circumstances

25The Elgin Street address is a well known drug house. Ms A.B. told Dr. Wilkie she had been there before to sell drugs and armed herself with a knife to prevent being robbed.

26Clairmont and A.B. were both at that drug house some weeks earlier and had a physical altercation that Ms Clairmont admitted she initiated. She punched Ms A.B. about 30 times while Ms A.B. was lying on a couch. Ms Clairmont suffered superficial cuts on that occasion from the knife that Ms A.B. used to ward off the punches. Ms A.B. was removed from the premise by other occupants without her knife.

27When Ms A.B. returned to the Elgin Street premise, Ms Clairmont realized there would be a confrontation and that Ms A.B. was coming after her for her knife. In fact when Ms A.B. entered the apartment on 4 November 2014, the first thing she did was ask Ms Clairmont for "her blade".

28Ms A.B. acknowledged to Dr. Wilkie that in the few days preceding this assault and on the day of the assault she had been using crystal methamphetamine.

c. Victim Impact

29Medical records disclose that none of Ms Clairmont's injuries were life threatening, nor was surgery required. The only invasive action taken was the insertion of a chest tube to relieve the hemopneumothorax. There was no injury to Ms Clairmont's airway or blood vessels or esophagus. Nonetheless, Ms Clairmont remained in hospital for four days.

30Ms Clairmont's daughter Natasha prepared her mother's victim impact statement and testified at this hearing. Ms Clairmont reviewed the written statement and provided an update on 17 January 2017.

31Ms Clairmont is now 50 years old and an admitted drug addict. She has a brief criminal record: one conviction in 2010 for possession of cocaine.

32The stabs wounds have left her with scarring that is still tender and intermittent shooting pain on her right side. She has some difficulty breathing after long walks or climbing stairs and is prescribed medication for pain.

33She now suffers from anxiety and panic attacks with random thoughts of paranoia and is dependent on medication to get a full night's sleep.

34Once a fairly independent person she is now heavily reliant on her daughter for emotional and financial support. She has become reclusive, distancing herself from other family members.

35Natasha Clairmont is herself a single parent raising two children and in full time attendance at college. During her mother's treatment and recovery Natasha was her health care advocate, ferrying her to appointments and attending to her physical and emotional care. That continues to this day as she has assisted in finding housing for her mother and checking on her wellbeing on a daily basis.

36In the victim impact statement Natasha summarized her life with these words:

I have never felt more strain caring for my mother then [sic] I have since the stabbing. I have lived and cared for myself since I was 13 years old. I care for my children on my own and I now care for them and my mother on a full time basis while being very active in my community and being a full-time college student.

3) A.B.'s History

a. Family

37A.B. has only two known immediate family members: her father J.B., aged 69, and a daughter D., born 1999, when Ms A.B. was 18 years old. She has no siblings.

38D. was taken into Children's Aid care as an infant after which A.B. never again regained custody.

39Much of Ms A.B.'s personal history is self-reported, though J.B. was contacted by the author of the pre-sentence report for some verification. However, he declined an interview with Dr. Wilkie despite Ms A.B. giving her permission to speak with him.

40The bulk of Ms A.B.'s history was sourced by Dr. Wilkie from Children's Aid records and other institutional sources and records that gave the factual foundation for her report.

41There was some suggestion from Ms A.B. that she might be of Métis ancestry on her maternal side and a Gladue report was ordered. However Aboriginal Legal Services declined to prepare the report stating:

Regrettably, at this point in time we are unable to prepare a Gladue Report for Ms. A.B. for two reasons. First, we are unsure, as is she, about the specific nature of her Aboriginal ancestry and second, even if her ancestry was somehow able to be confirmed we cannot address how being an Aboriginal person has affected her life circumstances.

42Ms A.B. was born in Mississauga and was in her mother's care for the first six years of her life. She had no information about her gestation or delivery but had been told that her mother may have consumed alcohol during pregnancy. She had little recollection of developmental milestones or medical history during this period.

43The only memories A.B. had of her early years with her mother were of abuse and neglect. She was often alone, not having basic needs such as food, clothing and emotional support provided by her mother. Because her mother would hit her if she didn't eat the meals she did prepare, A.B. resorted to sneaking food and hoarding it in vents. She was often sent off to neighbours to beg for cigarettes or alcohol.

44Ms A.B. remembered her mother as often being drunk and entertaining men on a regular basis, sometimes engaging in sexual activities in front of her. She said at times her mother gave her beer to drink.

45J.B.'s relationship with Ms A.B.'s mother was short lived and tumultuous. He had his own issues with drug abuse and served time for an armed robbery.

46In early childhood J.B. had access to his daughter on weekends but after that arrangement was ended by A.B.'s mother, he moved to Los Angeles. He was apparently unaware of his daughter's ongoing neglect while in her mother's care.

47After time in Los Angeles, J.B. returned to Ontario and appeared to have turned his life around. He started living a prosocial life free of the issues that had troubled him before he left.

48Around the age of 5 or 6 A.B. was put in foster care but ultimately placed with her father. He enrolled her in extracurricular activities including Brownies and Girl Guides, karate, hockey, dancing and soccer and arranged for her participation in the Big Sisters Programme. She enjoyed twice yearly trips to visit her paternal grandparents in Florida at their home there.

49J.B. exercised little disciplinary control over his daughter and by age 12 she had started to rebel and associate with older anti-social youth and adults.

50At age 14 Ms A.B. was placed in a foster care for two months due to her constant running away from home and ongoing conflict with her father. During her teenage years she lived in at least four different communities and started to amass findings as a young offender.

b. Education

51A.B. struggled in school having been diagnosed with Attention Deficit Hyperactivity Disorder before the age of 7.

52She attended four different high schools and briefly attended an alternative education programme, but did not get beyond grade nine level of education. She never found any enjoyment at school.

53Ms A.B. is noted in one report as being bilingual. It is not known when or where she learned the French language.

c. Employment

54Ms A.B. has never been gainfully employed in the community and has no workplace skills. Her work experience while incarcerated did not enhance those skills.

55When in the community she has been supported by her father, social services and often by dealing in drugs. She has resided with family or drug addicts while in the community. She has no bank account or savings and has never paid rent.

d. Substance Abuse

56A.B. started using alcohol and drugs in her teen years, possibly as early as 13. Her drug use included cannabis and crystal methamphetamine primarily, but she has also tried ecstasy, mushrooms, acid, PCP and GHB.

57At times she has denied that her use of alcohol and drugs has been problematic and at other times acknowledges that such use has caused problems with relationships, finances and criminal activity.

e. Young Offender Findings and Criminal Convictions

58The entirety of Ms A.B.'s youth and criminal record is reproduced in Appendix A. My assessment of this record for the purposes of this application will be addressed later in these reasons.

59While a youth, A.B. accumulated fifteen findings as an offender. The first of these was a break, enter and commit, and a theft under $5000 as a 14 year old. The balance of her youth record consists of 2 other property offences (thefts under) and failures to comply with various court orders (11 in total).

60Although information about these offences is scant, pre-disposition reports do not report any violence in the commission of any of these offences.

61Ms A.B. has 17 convictions as an adult. Of those, the defence concedes that the mischief endangering life, the manslaughter, the hostage taking (x2), the robbery and the predicate offence of aggravated assault meet the threshold of involving some degree of violence, attempted violence or endangerment for the purposes of the required s. 753(1)(a) analysis.

f. Psychiatric History

62As a youth, A.B. manifested multiple behavioral issues. Ritalin was prescribed for that condition.

63Risk profiles from the Ministry of Children and Youth Services from 1996 to 1998 consistently describe a young person who is emotionally unstable, physically and verbally aggressive, defiant toward authority figures, low functioning, easily misled with peers outside of her age range and having a short attention span and poor frustration tolerance. Substance abuse, both alcohol and drugs, was noted. Her risk was assessed as high.

64The first formal psychological assessment of Ms A.B. that is available was conducted in 2000 by Dr. Walter Friesen at the request of the Children's Aid Society of Haldimand Norfolk. While I acknowledge that assessment was prepared for a child protection hearing to assess A.B.'s parenting skills, it nonetheless offers some insight into a developing diagnosis and risk factors.

65Dr. Friesen suggested that Ms A.B.'s history and interpersonal style could meet the criteria for conduct disorder and concluded:

Ms A.B.'s temperamental difficulties, emotional under-development, and cognitive limitations, combined with her lack of motivation to change make it difficult to point to even an entry point for intervention. Certainly, any such undertaking would be a long term affair, that is, if Ms A.B. would commit herself fully and reliably to such project. Regrettably, the result of this assessment suggest that it is doubtful that Ms A.B. is ready to parent her child at this time or in the foreseeable future.

66At the sentencing hearing for Ms A.B.'s manslaughter conviction, the defence tendered a psychiatric assessment dated 21 May 2004, prepared by Dr. M. H. Ben-Aron.

67Dr. Ben-Aron founded his diagnosis on a personal interview with A.B., a psychiatric interview of Ms A.B. while in detention at Maplehurst Correctional Complex, a social work assessment and report that included an interview with J.B., Hamilton CAS records from 1988 to 1994, and Chedoke McMaster Hospitals records while in the care of Dr. P. Kondra for the period 1989 to 1996.

68Dr. Ben-Aron had no disagreement with earlier diagnoses of ADHD, Oppositional Defiant Disorder, parent/child problems, Conduct Disorder, Personality Disorder mixed type with anti-social and borderline components, and alcohol/substance abuse/dependence. He did however take issue with her degree of cognitive functioning as noted by Dr. Freisen, stating:

Clinically, it was my impression that functionally A.B. demonstrates some diminished intellectual ability but that she was not as severely limited as implied by Dr. Friezens' report…

69He acknowledged "transient" improvement in her overall functioning while under the care of Dr. Kondra and while taking Ritalin, noting that Ms A.B. abandoned this program when left to her own devices.

70Of significance, Dr. Ben-Aron opined from available information that Ms A.B.'s psychological and personality problems stem from problems pre-birth and may be related to Fetal Alcohol Syndrome or Fetal Alcohol Spectrum Disorder as well as the possibility of birth related trauma resulting in neurological injury with damaging cognitive sequelae. Combined with significant abuse and neglect as a child, Dr. Ben-Aron found these factors have had significant impact on her low self esteem, very poor social adjustment and continued acting out behaviour. He also noted that Ms A.B. has struggled with chronic low grade depression.

71Dr. Ben-Aron emphasized that the psychological and emotional problems are deep-seated and longstanding, and will require long-term sustained treatment to have any hope of success.

72As for risk, he concluded:

In my opinion, if A.B. does not succeed in her efforts to change, she must be considered as being at ongoing risk for continued acting out behaviour which could include aggressive/assaultive conduct directed towards others and/or property. I also believe that in the absence of adequate treatment, she will also represent a risk for self-harm.

73In concluding that Ms. A.B.'s prognosis for treatment response was poor, Dr. Ben-Aron expressed hope that her stated motivation for help, her young age and her incarceration, which would provide a highly structured and controlled environment for her to participate in treatment programs, would produce some beneficial change in her functioning.

74He offered specific recommendations to correction officials regarding treatment and programming for rehabilitation. In particular he recommended that:

…on admission to penitentiary, she again be assessed, with special emphasis being placed on the matter of her neurocognitive functioning (organic brain injury) and the level of deficit she has. Specific interventions may be designed and implemented to help her with respect to problems with attention, focusing, memory word processing, and organizing verbal/written communication.

75It is noteworthy that there is no evidence that the possibility of Fetal Alcohol Syndrome or Fetal Alcohol Spectrum Disorder or an organic brain injury were ever explored further when Ms A.B. was first federally incarcerated or at any time thereafter.

76Dr. E. Forouzan completed an assessment of Ms A.B. while at Joliette Institute in preparation for her parole eligibility in 2008. During a thorough interview Ms A.B. detailed her early years of abuse, learning difficulties and dysfunctional lifestyle.

77While she expressed remorse for her most violent behaviours, showed some empathy for her victims and motivation to change, Dr. Forouzan concluded Ms A.B. remained a high risk to reoffend, finding that her "long-standing and entrenched emotional and psychological problems constitute a significant obstacle to her good resolve" and would require ongoing treatment for a significant period of time.

78He opined that the magnitude of her problems and deficits had impaired her sincere desire to change her lifestyle and behaviour and her ability to apply and maintain what she had learned.

g. Medical History and Treatment

79Ms A.B.'s physical health and medical history, both in the community and while incarcerated has not caused concern. She has an allergy to tomatoes but no known hospitalizations or major illnesses.

80She has been prescribed Ritalin since childhood to address her ADHD, a regime she finds helpful. However, her treatment with Ritalin while incarcerated has been inconsistent, despite a well documented history for ADHD diagnosis and Ritalin prescriptions in clinical and institutional records.

81In some cases the drug was denied for no valid medical reason: for example as "not available for adults", or because she was soon to be transferred to a federal institution, or "ADHD was the least of her problems." Biphentin, a Ritalin substitute was prescribed in some institutions. According to Dr. Wilkie, while Biphentin is the same chemical as Ritalin, its formulation is different and it must be titrated, that is started with small doses and then worked up to an appropriate level. A Biphentin dosage cannot be immediately substituted for the same dosage of Ritalin.

82Institutional records disclose that A.B. has deteriorated when not receiving Ritalin and conversely has stabilized and done well when taking the drug.

83Curiously, Ms A.B.'s ADHD and Ritalin treatment, while documented, is not noted as verified in her Offender Tracking Information System (OTIS) record a provincial database available to all provincial institutions.

84Ms A.B. has not taken Ritalin while in the community and does not appear to have a family doctor.

h. Institutional History

85As a youth Ms A.B. had spent some 200 days in either detention or some form of youth custodial facility.

86Once 18 years of age & since July 2000, 8 months after the birth of her daughter, she has spent almost 17 years behind bars.

87In addition to the OTIS summary, an institutional file containing complete records pertaining to Ms. A.B. follows with her from one institution to another.

88While at the Hamilton Wentworth Detention Centre for these proceedings, she has been in segregation.

i. Programming

89Counselling was mandated through youth probation orders for Ms A.B. but there is no evidence about what was offered or completed beyond what can be inferred from Ministry of Community and Social Services records.

90While in detention and awaiting disposition on a fail to comply with probation and failure to comply with recognizance, Ms A.B. had one altercation with a peer but was otherwise noted as interacting in a positive manner, handling negative comments appropriately and seeking staff support appropriately.

91While Ms A.B. had a positive response to programming while in detention at the St. Leonard's Society Chatham Street Residence, and while at the Salvation Army Harmony House, her response to probation was poor and resulted in several findings of failure to comply with disposition, primarily breaches of residential terms.

92Records from provincial institutions evidence little available programming in the years that Ms A.B. has been in detention or serving sentences at the provincial level. What was offered were six programmes of 1 to 2 hours in length.

93While in federal penitentiaries, Ms A.B. participated in programming, including while in management protocol status at Nova Institute for Women and Joliette during the period 2005 to 2008.

94Her access to programming was limited to some extent by her classification while in management protocol or periods in segregation.

95It is noteworthy that while at Joliette, an Assessment for Decision report determined that DBT programming was not the best for her despite her desire to participate and Ms A.B. was referred to the Violence Prevention Programme. She met with some success there but was unable to meet minimum expectations explained by an inability to focus for three hours or so several times a week.

96Ms A.B. successfully completed the Violence Prevention Programme for women offenders while at Joliette Institution in the period June 2008 to October 2008. The final report from that institution recommended that Ms A.B. again take the DBT programme and noted some progress in her effort and perseverance.

97DBT programming was in fact restarted in October of 2010 but considered "incomplete" at the programme end date in March of 2010. While her behaviour was appropriate, her motivation was considered "lukewarm" and a mutual decision was made to terminate with support offered until her statutory release in June of 2010.

98The Violence Prevention Programme was again offered to Ms A.B. in October of 2010 on her return to Joliette but she withdrew after one month feeling that she was in control of her situation and no longer needed the programme.

99Additional programming was offered in 2011 to 2013. The Women's Engagement Programme was successfully completed as were the Women Offender - Moderate Intensity Programme & one of two Self Management Programmes.

100There are only passing references about attendances at school while in the penitentiary and it would seem there was little, if any, progress made in Ms A.B.'s education. While at the Southwest Detention Centre in 2015 Ms A.B. requested school programming but was denied on the basis of "ineligibility", including for self service booklets. No further explanation was offered.

101The only programming specifically directed to alcohol or substance abuse was offered to Ms A.B. in 2005. She completed the first of three modules. There has been no other targeted substance abuse programming since that date other than occasional attendances at Alcoholics Anonymous meetings while in detention.

102Ms A.B. has participated in some anger management programming while at the Hamilton-Wentorth Detention Centre.

j. Institutional Behaviour/Misconducts

103Ms A.B.'s behaviour while incarcerated has resulted in excess of 200 misconducts.

104By far the majority of the misconducts demonstrate anti-social behaviour such as being disrespectful to guards, or breaking institutional rules by giving another inmate a teddy bear. There are some more serious incidents of misconduct such as possessing contraband which is used as "currency" in institutions.

105There are some incidents of violence or threats of violence toward other inmates. These incidents though documented in institutional records, are unproven.

106One incident in April 2003 resulted in the conviction for mischief endangering life for setting her bedding on fire and flooding her cell while at Hamilton Detention Centre. She was in detention waiting to stand trial for first degree murder.

107Her most egregious offence while incarcerated was the hostage taking at Grand Valley Institute in August 2005. Ms. A.B. and Renee Acoby took a nurse and behaviour counsellor hostage. The two women were held for about four hours, and were assaulted, threatened and forced to ingest psychiatric medication.

108Ms A.B. has been intermittently placed in segregation throughout her time in penal institutions and was, after the hostage taking, involuntarily transferred to Nova Institution and placed on Management Protocol. That designation followed her for her transfer to Joliette in 2006.

109Ms. A.B. was one of only seven women ever placed on Management Protocol according to the defence witness, Senator Kim Pate. She was able to make sufficient progress that she was removed from the Protocol at Joliette and placed back in the general population. According to Senator Pate, Ms. A.B. was the only woman in the history of Management Protocol to ever do so.

110Her most successful years, in terms of stabilized behaviour and progress through treatment, appear to be those spent at the Joliette Institution for Women.

111Michael Ducheneau, Security Manager at the Hamilton Wentworth Detention Centre, testified that Ms A.B.'s OTIS profile as maintained by provincial institutions is such that she is viewed as an "alpha" inmate: an aggressor who is also an instigator of physical aggression, both personally and amongst other inmates.

112He acknowledged however that there is a hierarchy in institutions and life in an institution is a power struggle, irrespective of whether Ms A.B. is there or not.

113Ducheneau testified that Ms A.B. has been in segregation and on a "verbal contract" for behaviour in Hamilton because of her history in institutions, despite having been transferred here from general population at the Central East Correctional Centre, a piece of information that is readily available on OTIS.

114There have been no incidents since Ms A.B. arrived in Hamilton for this application which commenced 31 January 2017.

k. Supervision History

115As a youth Ms A.B. was subject to seven probation orders during the years 1996 to 1999. She was often in breach of those dispositions, mainly by failing to abide by residency or curfew provisions or failing to attend school.

116Predisposition reports disclose a portrait of an impulsive and immature young teen who is negatively influenced by peers, uncooperative with authority figures, including her father, and non-compliant with her prescribed medication regime for severe ADHD.

117As an adult, the supervision history while on probation was equally unsuccessful with 6 convictions for failure to comply with disposition/probation. The breaches related primarily to failures to keep the peace with attendant substantive charges, failures to report as required or prohibited associations with named persons.

118Ms A.B.'s first statutory release was on 23 June 2010 (after the August 2005 hostage taking). She was released to the Martineau Community Mental Health Unit under a special residency condition and with strict conditions requiring psychological counselling, abstinence from drugs and alcohol and non association with persons with a criminal record or involved in the drug culture.

119That statutory release was suspended and ultimately revoked on 12 July 2010 when Ms A.B. was seen with a person with whom she was warned not to associate and was found in possession of marijuana. Ms A.B. was returned to Joliette.

120On 28 June, 2012, Ms A.B.'s second statutory release had her placed in Barrie at the Joyce Cope Community Residential Facility, again under strict conditions for residency, counselling, abstinence from drugs and alcohol and non association terms.

121On her second day at Joyce Cope, Ms A.B. left the residence and failed to return. She turned herself into Hamilton Police Service on 3 July 2012. The Parole Board revoked her statutory release for a second time on 15 August 2012 and Ms A.B. was returned to Joliette.

122Her security classification was increased from medium to maximum while there because of suspected intimidation of prisoners and suspicion of trafficking in medications.

123Ms A.B.'s final statutory release was on 25 February 2013. Her conditions were similar to those imposed for her earlier releases and she was directed again to live at the Joyce Cope facility in Barrie.

124On 5 March 2013, Ms A.B. returned to the facility intoxicated by alcohol. Her statutory release was suspended but the suspension cancelled on 7 March 2013. New conditions restricted her movements from the Joyce Cope facility to 1 hour absences up to a maximum of 4 a day.

125Despite that reprieve, Ms A.B. came home to the facility on 25 March 2013 while under the influence of what staff believed to be both marijuana and alcohol. Her statutory release was again suspended and she was returned to Joliette for her warrant expiry date in June of that year.

126While back in the community on 18 August 2013, Ms A.B. robbed her victim of a bicycle and received a custodial sentence of 6 months in addition to 9 months pre-sentence custody and 12 months' probation. This was the first offence for violence while in the community since her conviction for assault in 2001.

127After serving that sentence she was twice convicted of breaching her probation by failing to report and having contact with a prohibited person. A short custodial sentence was imposed for those breaches after which Ms A.B. was back in the community.

128Four months later Ms A.B. committed the aggravated assault which gives rise to this proceeding.

C. MS A.B.'S PLAN

129The only evidence of Ms A.B.'s plan came from what might be inferred from the testimony of Dr. Wilkie and her report, the testimony of Senator Pate and Ms A.B.'s statement to the court, and inferentially from the testimony from Corrections and Parole Board witnesses regarding Correctional Plans and release terms.

130Ms A.B. strongly expressed motivation for treatment to both Dr. Wilkie and her associate, Dr. Penny, and acknowledged that she was not prepared for release without it.

131To Dr. Wilkie she cited her motivators as the assessment process for this application and her wish to improve her "wasted" life for her father. She expressed wanting to take part in substance abuse counselling, violence prevention programming, attend school and learn employment skills while in the penitentiary.

132Ms A.B. has been able to reconnect with her daughter while in detention in Hamilton and expressed that additional motivating factor to Senator Pate. This was not known to Dr. Wilkie and therefore not a subject of her commentary.

133Senator Pate also testified that Ms A.B. has asked for her personal help and for assistance from the Elizabeth Fry Society. That would include advocacy with prison officials while incarcerated and liaison with Correctional Service of Canada on release to assist with placement, contracts for wrap-around care, counselling supports that might be contracted, aboriginal services, education initiatives and employment opportunities.

D. MS A.B.'S STATEMENT PURSUANT TO S. 726

134Ms. A.B. struggled to express herself when asked if she had anything to say before sentencing. In anticipation of that eventuality her counsel took instructions that were reduced to writing and read to the court on her behalf:

I know I've made a lot of bad choices in life and hurt a lot of people including my father and for that I am truly sorry, but I know saying sorry isn't good enough. Because of what I've done, I've spent most of my life in jail. I don't want to be in jail anymore, I want to do something with the rest of my life. This Dangerous Offender application has really brought it home to me that everything I've done up 'til now is a waste and I don't want to waste the rest of my life. I want the chance to go to school, the chance to learn a trade, the chance to have a real relationship with my Dad and my daughter, and I never want to go back to jail again.

E. CORRECTIONS AND PAROLE SERVICES

135Testimony was heard from Correctional Services and the Parole Board of Canada that shed light on the correctional planning and programming and the nature and amount of controls that are available to offenders on release for various classifications.

1) Intake and Correctional Planning

136According to Marlene DoRego, Parole Officer Supervisor for the Women's Supervision unit for Toronto and Hamilton, a Correctional Plan is completed within 90 days of intake for offenders serving sentencing terms of more than four years.

137That plan acts as a blueprint for the offender's sentence and the offender's progress is measured against goals set out in that plan. Updates are made as required and community strategy planning takes place as part of the pre-release decision process.

138Ms Petrina Lemieux, Regional Programme Manager (Ontario) for Correctional Services Canada, testified that all female offenders initially take part in a 15 session engagement programme to determine areas of risk and level of programme intensity to address their risk. Learning disabilities and other psychiatric diagnoses are accommodated and cognitive behavioural therapy is at the basis of all programming. DBT programming is available for those who require it as well as some educational/vocational training.

139Access to programming is dependent on a number of factors however. Offenders requiring a higher level of security are less likely to receive some kinds of training or programming as they are not able to leave their unit for programming until their release/decision dates are imminent.

140Other institutional factors such as numbers, space, statutory holidays and the necessity of lockdowns may also come into play.

141While the ideal is the delivery of programming sooner rather than later, it may depend upon an on anticipated release date. An inmate with an impending release date is given priority over one with a release date far into the future.

142On entry to a facility as a dangerous offender, inmates are mandatorily in maximum security for the first two of the four years before their first parole eligibility date so that access to programming is more difficult.

143In either case, whether it is an issue of an offender's security level or anticipated release dates, access to programming is somewhat dependent on institutional considerations and operational considerations in implementing resources.

2) Release Process and Programming

144In addition to institutional programming, Correctional Service of Canada offers a 12 session weekly self-management programme once an offender is in the community. Other programming, such as DBT, substance abuse programming, and vocational training, is offered through contracts with community resources such as the Centre for Addiction and Mental Health in Toronto or St. Joseph's Hospital in Hamilton, and local chapters of the Elizabeth Fry Society and the Salvation Army.

145Aboriginal services are available for those who self-identify as such and are part of a healing plan.

146Parole eligibility is mandated by the Corrections and Conditional Release Act, S.C. 1992, c.20. Offenders subject to a determinate sentence are eligible for parole at roughly one-sixth of their sentence.

147For offenders with an indeterminate sentence day parole eligibility is at three years prior to full parole eligibility, which for someone declared a dangerous offender, is seven years following their date of arrest.

148Ms DoRego explained that all offenders with determinate sentences (including those declared dangerous offenders) are eligible for statutory release at two-thirds of sentence regardless of security classification unless detained pursuant to s. 129 of the CCRA. Declared dangerous offenders with indeterminate sentences do not qualify for statutory release. That release must be earned.

149Whether an offender is released by way of parole eligibility or statutory release, mandatory conditions are imposed pursuant to regulations under CCRA regulations with other conditions that are reasonable and necessary to protect society and facilitate successful reintegration. It is the Parole Board of Canada that sets those conditions pursuant to s. 133 of the CCRA.

150Those with determinate sentences not released until warrant expiry are not subject to any further control unless a Criminal Code s. 810 bond is obtained that would allow police supervision for up to one year.

151Offenders subject to a long term supervision order at warrant expiry are released with a plan subject to conditions under s. 134.1 of the CCRA and regulations thereunder.

152As a condition of statutory release or parole, offenders may be required to reside in a residential facility right up to warrant expiry; those released with a long term supervision order are mandated to reside in such a facility for a minimum renewable period of 365 days.

153Dangerous offenders serving an indeterminate sentence may be released on parole but it is rare.

154Residential facilities are operated either by a non-governmental agency or by Correctional Services Canada. There is only one two-bedroom facility operated by Correctional Services Canada that is available for women. It is located in Quebec. Other community facilities are operated by agencies such as the Salvation Army and Elizabeth Fry.

155Because there are so few Community Correctional Centre beds available for women, Ms DoRego testified that enhanced funding could be made available for a woman placed in a community correctional facility for an additional staff member to assist with supervision and/or a personal support worker to assist with day to day life functions, such as opening a bank account and connecting with a family physician.

156Curfew restrictions are in place at all facilities and offenders are required to be in house for a minimum of six hours per day. Offenders are restricted to approved areas and places and sign outs are required.

157Urinalysis is available when any offender on release is mandated to abstain from drugs and alcohol.

158On release, offenders report within one day to a community parole officer, and are thereafter subject to four face to face contacts in each month unless that offender is subject to Intensive Supervision Practice, in which case such meetings are eight times each month.

159Case conferences and community assessments are mandated at regular intervals.

3) Process in the Event of Breach

160Should an offender breach conditions, a warrant of suspension and apprehension may be issued. Such a warrant may be cancelled within 30 days if there is a new strategy to manage risks. In the event there is not, the Parole Board determines whether it is necessary to revoke the release taking into account any recommendations by Correctional Services.

161Persons subject to a Long Term Supervision Order can be suspended on the same basis as offenders on parole or statutory release. The process of issuing a warrant and apprehension is the same however, once the warrant is executed revocation cannot be recommended and the suspension expires if more than 90 days pass or a breach charge is laid.

162A decision to cancel the suspension or refer to the Parole Board for a post-suspension decision is made no later than the thirtieth day after the offender's commitment to custody.

163Possible decisions by the Parole Board include:

• Suspension cancelled
• Suspension cancelled with new conditions
• Order cancellation not to take effect for no longer than the 90 days from warrant to allow the offender to take part in remedial programming in the interests of protecting society form risk
• Refer to the Attorney General with a recommendation to lay a charge for breach of an LTSO pursuant to s. 753.3 of the Criminal Code.

164Should the breach arise result in a criminal charge, the LTSO runs during any pre-trial detention. However should a conviction result in a custodial sentence, the new custodial sentence interrupts the supervision order. That sentence will be served in a federal institution, irrespective of its length and any remnant of the LTSO will recommence on release.

165Any dangerous offender subject to an indeterminate sentence who has managed to earn parole is subject to the same supervision standards and policies as other offenders and may be suspended for the same reasons.

166Currently there are 8 Dangerous Offenders in Canada who are women. Of those, 3 were given indeterminate sentences and remain in custody, 5 served determinate sentences with an LTSO attached. One of those women is in custody on new charges while the other four are in the community under supervision.

F. EVIDENCE OF DR. TREENA WILKIE

167Dr. Wilkie has a specialist designation in forensic psychiatry with the Royal College of Physicians and Surgeons. She is the senior head for forensics at the Centre for Addiction and Mental Health with clinical duties in the minimum secure forensic unit in the sexual behaviours and brief assessment unit.

168She has trained in and conducted research in the Historical Clinical Risk Management (HCR-20) judgment tool version 3 and is the co-author with Dr. S. Penny of a paper entitled "Multi-Rater Reliability of Historical Clinical and Risk Management 20 Assessment".

169The defence acknowledged her qualification as an expert in forensic psychiatry to provide the opinion set out in her seventy page report.

170While Dr. Wilkie is an eminently qualified forensic psychiatrist, she has little or no experience with female offenders serving a sentence in a penitentiary setting. Nor has she visited any federal female institutional facility. Her forensic training, teaching activities and scholarly work has not directly engaged female inmates in a penitentiary. She has lectured at an academic review on the topic of risk assessment for specific populations including women but that was based on academic studies of research in that area. Nor does any of her current research involve women in penitentiaries.

171In addition to interviewing Ms A.B. and reviewing the report of Dr. Penny, Dr. Wilkie reviewed volumes of materials provided by the Crown, including but not limited to the evidence set out earlier in these reasons. In short, she had access to every piece of available documentation relating to A.B.'s life, originating from medical, law enforcement and administration, and correctional sources.

a. Diagnosis and Treatment

172Dr. Wilkie found that while Ms A.B. does not suffer from a major mental illness such as schizophrenia or bipolar affective disorder, she did meet criteria for Anti-Social Personality Disorder, with borderline personality traits, as well as Substance Use Disorder and Attention Deficit Hyperactivity Disorder. She found there was insufficient evidence to support a diagnosis of Fetal Alcohol Syndrome as suggested by Dr. Ben-Aron.

173The essential feature of Anti Social Personality Disorder is a pervasive pattern of disregard for, and violation of, the rights of others, occurring since the age of fifteen as indicated by a list of 7 behaviour patterns, of which Ms A.B. displays all.

174Criteria for Borderline Personality traits include a pervasive pattern of instability of interpersonal relationships, self-image and affect, and marked impulsivity beginning in early adulthood. Ms A.B. meets the threshold of 5 of 9 criteria.

175Dr. Wilkie considers Ms A.B.'s Substance Use Disorder to be in sustained remission due to extended period of incarceration since committing the predicate offence. She considers substance use to be directly related to past offending behaviour.

176I accept Dr. Wilkie's diagnostic findings. They are a progressive unfolding of the initial diagnosis of Dr. Friesen and later Dr. Ben-Aron.

177Treatment for Anti-Social Personality Disorder focuses on anger management, social skills & vocational training. The primary psychological treatment for Borderline Personality Disorder is Dialectical Behaviour Therapy (DBT). Indicated adjunct therapy includes pharmacological intervention.

178Treatment for the Substance Use Disorder would involve both psychological and pharmacological options.

179Ms A.B. was diagnosed with ADHD in childhood. Dr. Wilkie opines:

Whilst her personality dysfunction is likely the primary driving factor behind her overall impulsive and unstable affective and behavioural presentation, ongoing symptoms of ADHD appear to be perpetuating factors as well, as evidenced by documented attenuation of these symptoms when her medication regime is optimized.

180Dr. Wilkie suggests that Ms A.B.'s ability to sustain participation in programming and self modulate her behaviour has been affected by ongoing symptoms of ADHD.

b. Risk Assessment

181There are other "criminogenic variables" that Dr. Wilkie views as contributors to her risk assessment. They are Ms A.B.'s unstable childhood environment, her geographic instability in her teen years and her extended periods of incarceration with consequent instability in her relationships and attraction to criminal lifestyle.

182Dr. Wilkie began her assessment of risk with a statistical appraisal of risk, termed "static" factors and then addressed those dynamic factors that suggest an upward or downward movement of the statistical appraisal of risk.

183Two tools are used in the statistical appraisal. The first, the Psychopathy Checklist Revised (PCL-R), defines and measures the personality dimension (static personality variables) most closely related to offending behaviour in clinical samples.

184The PCL-R looks at criminal versatility without taking into account the particulars of what happened or any interpretation of the sentence imposed relative to the offence.

185This tool consists of two subscales: Factor 1 which measures exploitive values and attitudes and Factor 2 which addresses indicia of behavioural dyscontrol.

186Both Drs. Wilkie and Penny scored Ms A.B. on the PCL-R. The Factor 1 score was 5, placing her below the 35th percentile compared to a prison inmate population with a Factor 2 score of 19, placing her at the 100th percentile compared to prison inmate population.

187For the purpose of her report Dr. Wilkie used the total score of 26 out of a possible 40 points. This score places Ms A.B. just above the 81st percentile compared to an updated sample of North American female offenders of a 1218 person sample size.

188She conceded that the elements of the Factor 2 scale (behavioural dyscontrol) would allow for more potential interventions in terms of a risk management plan.

189Dr. Wilkie concluded that Ms. A.B.'s overall score on this assessment tool is considered "significantly elevated compared to the general population and elevated for a prison inmate population."

190In cross examination Dr. Wilkie conceded that scoring is based on the impression of the scorer and is in that sense, subjective. The PCL-R itself has a standard error of measurement of 3.25.

191The second assessment tool, the HCR-20 V3, evaluates risk for inter-personal violence based on factors shown to be empirically related to violence. That tool is intended to identify risk factors and inform risk management interventions.

192Using this measurement, Dr. Wilkie found Ms A.B. had 8 principal criminogenic variables:

• history of problems with violence and anti-social behavior
• history of problems with relationships
• history of problems with employment
• history of problems with substance use
• history of problems with Personality Disorder
• history of problems with treatment or supervision response
• recent problems with insight
• recent problems with instability (affective, behavioural and cognitive functioning)

193In all, Dr. Wilkie opined that Ms. A.B.'s risk assessment suggests she is a high risk for both general and violent re-offence.

194In her assessment Dr. Wilkie did not place any events in context, whether they were alleged misconducts while incarcerated or matters that resulted in criminal charges. She did not differentiate between unverified allegations, charges or convictions.

195She accepted documentation without questioning its accuracy. She testified that for her purposes, it was the recorded event that was of significance for the purposes of risk formulation and suggested that context comes into play for the risk management plan.

196In re-examination on the issue of context, Dr. Wilkie remained steadfast that placing Ms A.B.'s behaviour in the context of concurrent events in her life did not alter her risk assessment for psychiatric purposes.

197In cross examination on the issue of context, Dr. Wilkie acknowledged that her assessment of high risk for recidivism addresses likelihood, not certainty, and does not speak to the severity of future recidivism.

c. Risk Management and Recommendations

198In reviewing Ms A.B.'s previous responses to treatment and supervision. Dr. Wilkie concluded that:

Her behavioural outbursts, placements in segregation, difficulty concentrating and variable motivation/interest were intermittent barriers to concept acquisition over the years.

199Given the risk assessment scores, Dr. Wilkie was equally pessimistic about Ms A.B.'s likelihood to respond to treatment in the future, considering her prognosis to be below average for success. She thought this to be the case because of the high PCL-R score and the personality disorder diagnosis. Overlaying these factors is Ms A.B.'s substance abuse and ADHD, both of which impact response to treatment. She noted however, that Ms. A.B. appears better able to function when her medication regime is optimized.

200With regard to pharmacological treatment, Dr. Wilkie acknowledged that Ritalin has been assessed in helpful in managing Ms A.B.'s hyperactivity and distractibility and acknowledged the positive effect that drug had on her programming participation and behavioral control at Joliette where her medication regime was optimized.

201While Dr. Wilkie did not find Ms A.B.'s current expression of a high level of motivation to participate in treatment to be a significant factor in her likelihood for success, she did credit her for acknowledging she would not be prepared for immediate release without such treatment.

202Dr. Wilkie considered Ms A.B.'s response to community supervision terms, whether on probation or statutory release, to be "exceedingly" poor with relapses into substance abuse and association with criminal peers in very short periods of time after release.

203She considers Ms A.B.'s propensity to return to a destabilizing and risk-enhancing environment when on release, combined with limited vocational and inter-personal skills upon which to build, and a lack of community support beyond her father, to be impediments to establishing a stable non-criminogenic lifestyle.

204Dr. Wilkie acknowledges Ms A.B.'s emotional connection to her father and the support he has been to her throughout her life, including periods of incarceration; however, she states:

…the degree to which this translates into impacting her ability to manage her behaviour and achieve goals is less apparent. She has few, if any, other sources of pro-social support apart from professional contacts (i.e. parole officer).

205In all, Dr. Wilkie expressed that from a psychiatric perspective, there would be significant challenges for Ms A.B.'s manageability in the community even with a high degree of support and supervision. She opined that despite her strongly expressed motivation to change both her behaviour and environment, her "affective instability, poor coping strategies and lack of reflection on her risk factors would likely make involvement in necessary programming and supervision a challenge going forward."

206She was unable to prognosticate a timeline for improvement and stated some supports would be required in perpetuity.

207Dr. Wilkie offered seven recommendations for conditions should Ms A.B. be released into the community, reproduced in Appendix D to these reasons.

208I am mindful of the findings in Dr. Wilkie's assessment. However Ms A.B.'s risk for dangerousness must be viewed through the prism of a legal framework, not a psychiatric one.

G. POSITION OF THE PARTIES

209The Crown seeks a dangerous offender designation under s. 753(1)9(a)(i) and/or s.753(1)9(a)(ii) with the imposition of an indeterminate sentence, along with appropriate ancillary orders for DNA, a lifetime weapons ban and an order under s. 760 of the Criminal Code for transmission of documents to appropriate authorities.

210In so doing, he Crown not only relies on the entirety of Ms A.B.'s record, both as a youth and as an adult, but also on the institutional records from both provincial and federal sources and the assessment of Dr. Treena Wilkie.

211For reasons earlier outlined, I do not accept the broad swath of evidence tendered by the Crown as entirely reliable or of significant weight in my overall analysis.

212The defence concedes that the convictions for mischief endangering life, manslaughter, hostage taking (x2) and robbery, and the predicate offence, all approach the threshold of violence or endangerment for the purpose of a s. 753(1)(a) analysis. The defence position is that those offences, coupled with the predicate offence, do not amount to a pattern of dangerousness as set out in either of the gateways argued by the Crown and seeks a determinate sentence in the range of six years, less pre-trial custody of approximately 2 years and six months, calculated at a rate of 1.5 for 1(3 years and 9 months) for a remainder of 2 years and 3 months further incarceration.

213The Crown takes no issue with the credit sought by the defence but urged a range of 8 to 10 years should a determinate sentence be imposed.

I. GUIDING PRINCIPLES AND ANALYSIS

1) General Principles

214Certain general principles emerge from the jurisprudence relating to dangerous offender hearings. They are:

• The "primary rationale for both indeterminate detention and long term supervision under Part XXIV is public protection": R. v. Steele, 2014 SCC 61 , [2014] 3 S.C.R. 138, para. 29.

• As the overriding aim of a DO designation is not punishment, but the prevention of future violence, other traditional sentencing objectives are given significantly less consideration: R. v. Blake, 2016 ONSC 2204, para. 20.

2) Threshold Requirements Under s. 753(1)(a)

215As a first stage of analysis, I must consider whether Ms. A.B.'s serious violent offences presently constitute behavior that is a threat to the life, safety or physical or mental well-being of other persons as defined under s. 753(1)(a) in the future.

216Proof of that threat is predicated on establishing proof of past behaviour as described in either of ss. 753(1)(a)(i) or (ii). If the Crown fails to establish that proof, then Ms A.B. cannot be found to be a threat. If there is such proof, consideration can then be given to whether Ms A.B. is a threat to public safety as contemplated in ss. 753(1)(a).

217The Alberta Court of Appeal explained the linkage of the two sets of proof in the s. 753(1)(a) threshold in R v Neve, 1999 ABCA 206 , [1999] A.J. No. 753 at paras 103 to 105:

103 While these two steps - whether the Crown has proven that the offender's past conduct meets one of the specified thresholds and whether the offender constitutes a threat of the type contemplated - are linked, they are nevertheless quite separate. They are linked in the sense that the court cannot make a determination that an offender constitutes a threat in the manner specified in s. 753(a) except on the basis of evidence that meets at least one of the specified behaviour thresholds. However, they are separate in that even if the Crown proves that one of the thresholds has been met, the court must then go on to consider whether, in light of that evidence, the offender constitutes a threat to the life, safety, or physical or mental well-being of others.

104 What this means is that a finding that one of the past conduct thresholds has been met does not automatically and inevitably lead to the finding that the offender is a threat. As will be evident from the various categories of threshold requirements the Crown has chosen to prove, be relatively easier or harder to satisfy the court that the offender, based on that behavior, constitutes a threat of the kind contemplated in s. 753(a).

105 What this also means is that a threat finding cannot be made in the absence of proof of past conduct falling within one of the specified thresholds.

3) What is a "Pattern"?

218The meaning of a "pattern" had been the subject of much judicial consideration. What has emerged from decisions relating to the pattern are these principles:

Generally:

• A "pattern"' of behavior is something more than a mere history of criminal activity. There must be something that connects prior incidents together in a manner that justifies considering them as a whole. Similarity "can supply the requisite degree of connections" and generally "the fewer the incidents in the past, the greater their similarity must be to amount to a pattern. Similarity can be found in the types of offences or in their circumstances". R. v. Akbar, 2014 ONSC 3700 , [2014] O.J. No. 2961 (S.C.), at para. 301.

• The two patterns are not mutually exclusive and may well overlap. By necessity both ss. 753(1)(a)(i) and (ii) will involve repetitive behaviour: R v McCallum, 2016 SKCA 96 at para. 46.

• If the Crown fails to prove one or more of the required elements, then the proscribed pattern has not been made out.

219Under s. 753(a)(i), the required elements are the following:

1. A pattern of repetitive behavior;
2. The predicate offence must form part of that pattern;
3. That pattern must show a failure by the offender to restrain his or her behavior in the past; and
4. That pattern must show a likelihood of death, injury or severe psychological damage to other persons through failure to restrain his or her behavior in the future: R. v. Neve, 1999 ABCA 206 , [1999] A.J. No. 753, para 107.

• The pattern of repetitive behavior that includes the predicate offence has to contain enough of the same elements of unrestrained dangerous conduct to be able to predict that the offender will likely offend in the same way in the future: R. v. Hogg, 2011 ONCA 840, at paragraph 40.

• The pattern's elements may include two very similar incidents: R v Langevin, [1984] O.J. No. 3159 (C.A.) or several non-similar incidents: R v Dow, 1999 BCCA 177.

• The number of incidents, of which the predicate offence is one, purporting to demonstrate a pattern can have significance. Generally"…in order to meet the requirements of a pattern, the fewer the incidents, the more similar they must be. ": R. v. Szostak, 2014 ONCA 15, at para. 51. Though there was a "need for remarkable similarity where only two offences were involved…"fewer exact similarities were needed' where four offences were involved.": Szostak, at para. 57.

220Under s. 753(a)(ii), the required elements are these:

1. A pattern of persistent aggressive behavior;
2. The predicate offence must form part of that pattern; and
3. That pattern must show a substantial degree of indifference by the offender respecting the reasonably foreseeable consequences of his or her behavior: R. v. Neve, 1999 ABCA 206 , [1999] A.J. No. 753, para, 108.

• The similarities between the predicate and past offences need not be established under s. 753(1)(a)(ii), the requirement being that the predicate offence be another example of chronic, i.e. "persistent" aggressive behavior for which the offender shows a substantial degree of indifference to the foreseeable consequences to others of that behavior: R. v. Yanoshewski (1996), 104 C.C.C. (3d) 512 (Sask. C.A.) at paras. 25-27. Also characterized as a conscious but uncaring awareness of causing harm to others occurring over a period of long duration involving frequent acts with significant consequences: R. v. George (1989), 126 C.C.C. (3d) 384 (B.C.C.A.) at pp. 394-395.

221The pattern in s. 753(1)(a)(i) is prospective in the essential elements requiring a likelihood of lack of restraint in the future and in the required impact of that pattern on the threat assessment.

222The pattern in s. 753(1)(a)(ii) is focussed on a broader notion of a pattern of persistent aggressive behaviour that demonstrates indifference in the past. If so found, only then is there an analysis of the impact of that pattern on a prospective basis for threat.

223As an aggravating factor to what is essentially a sentencing hearing, either pattern must be proven beyond a reasonable doubt: R v Gardiner, [1982] 2 S.C.R. 368; R. v Jackson (1981), 23 C.R. (3d) 4 (N.S.C.A.), and R. v. D. (F.E.), 2007 ONCA 246.

4) Context for the "Pattern" Offences

224Although there is some documentary evidence of Ms A.B.'s general history as a youth, there are insufficient particulars regarding any of the findings as a youthful offender.

225Records, including pre-disposition reports do not refer to the commission of violence during any of the offences.

226In my view Ms A.B.'s anti-social behaviour and youth record does not display any of the features that would assist in assessing threat for the purposes of s. 753(1)(a) and warrant inclusion in a pattern of behaviour as contemplated by either s. 753(1)(a)(i) or (ii).

227What becomes apparent from the youth records is the profile of a young person abused and neglected as a child by her mother, suffering from ADHD, impulsive and immature, without personal concern for her own safety, isolated from peers and occasionally the target of their bullying and assaults, attracted to an older delinquent crowd and "easily misled and manipulated".

228All that emerges from Ms A.B.'s youth history is general context.

229While the absence of convictions for offences of violence as a youth did not alter Dr. Wilkie's opinion, it does bear on the legal analysis of matters that contribute to a "pattern."

230The facts surrounding the convictions on her adult criminal record that speak to violence require some scrutiny.

231As an adult, Ms A.B.'s first conviction was in 2001 for a common assault for which she received a sentence of one day (time served 89 days) and one year probation. There is no information whatsoever about this offence that would add any formative quality to the required assessment.

232After that conviction, Ms A.B. spent almost all of the next 17 years in and out of penal institutions.

233The context in which the remaining offences of violence were committed is of importance in the pattern analysis. Two reasons for the relevance of context have been enunciated by Hill, J. in two separate decisions.

234The first was in R v Naess, wherein he stated at paragraph 63:

The identification of a pattern within the meaning of ss.753(1)(a)(i) and (ii) is not an exercise limited to facial review of a prior criminal record [italics mine] - "the context in which an offender committed past criminal conduct will be relevant": R. v. N. (L.), supra at para. 118. Put differently, also at para. 118"if the analysis of past behaviour is undertaken without reference to the surrounding circumstances" it can:

lead to an undermining of a judge's conclusion on two different levels – first, in terms of assessing which past conduct goes on the pattern scale; and second, in assessing the likelihood of that behavior continuing in the future as a result of the offender's failure to restrain or substantial indifference.

235And again in R v B.(D.), 2015 ONSC 5900, paragraph 188, Hill, J. emphasized the relevance for the purpose of prediction of likelihood to reoffend in a similar fashion (and, I suggest, for the purpose of demonstrating indifference to reasonably foreseeable consequences):

A pattern of repetitive or aggressive behaviour on the part of an offender within s. 753(1)(a)(i)(ii) is not a strict similar-fact-based analysis but rather an inquiry as to whether it has been established that the scrutinized conduct contains sufficient of the same elements of unrestrained dangerous conduct to be able to predict the offender will likely offend in a similar fashion in the future: Szostak, at paras. 56-7; R. v. Hogg, 2011 ONCA 840 (Ont. C.A.), at paras. 40, 43.

236This reasoning honours the sentencing principle that takes into account aggravating or mitigating circumstances relating to the offence or the offender.

237Therefore, in assessing the existence of a behavioural "pattern" I find it more appropriate to examine the behaviour in Ms A.B.'s offences from an offence date, rather than a conviction date, perspective. This will more suitably address the issue of context as directed in Naess, supra.

238I make these findings respecting each of the additional "pattern" offences:

a. Manslaughter Conviction

Chronologically, the homicide is the first serious violent offence, occurring on 26 March 2002, that leads Ms A.B.'s manslaughter conviction of 24 June 2004 based on her plea to that offence.

239After release from custody in 2001, Ms A.B. was not discharged with any medication and was not taking Ritalin in March of 2002.

240The other two offenders were Joshua Kohl, the 21 year old father of Ms A.B.'s child, and Brandon Hill, a 22 year old friend of Kohl's.

241Earlier in the day of 25 March, Kohl telephoned Ms A.B. to tell her that he and Hill were coming to visit. They arrived at Mr. J.B.'s residence and spent the late afternoon drinking and smoking marijuana with Ms A.B., her uncle, and Claude Chaisson.

242The group, with the exception of Ms A.B.'s uncle, then went to Mr. Zeszutek's apartment to continue the night of drinking and smoking cannabis and general "partying" to the early morning hours of 26 March 2003.

243At some point Chaisson was ejected from the apartment by Zeszutek.

244The acknowledged facts of that offence are set out in full in the agreed statement of fact filed on the plea date. What took place was a vicious beating of the victim Zeszutek that arose after a disagreement between the deceased and one or more of the male offenders.

245The Criminal Profile Report (CPR), dated 24 December 2004 and reviewed by Dr. Wilkie, discloses that according to an interview with Ms A.B., and reasons for sentence imposed by the presiding justice, the beating started while Ms A.B. was in the bathroom. She did nothing to stop the assault, prevent its escalation, obtain medical assistance for Zeszutek or report the incident. She also said that she felt "like crap" and should have done something when the assault took place.

246Ms A.B., Kohl and Hill left Zeszutek, badly beaten but alive, in the apartment sometime after 2am.

247Cause of death was determined to be multiple blunt force injuries to the head chest and abdomen. An impression from one of Kohl's running shoes was on Zeszutek's back. Dr. David King, forensic pathologist who performed the autopsy opined that the force of contact from Kohl's foot could, and likely did, cause a lateral fracture of 3 ribs, puncturing the deceased's lung causing haemorrhage and injury to the liver and adrenal gland. Dr. King considered these injuries to be a significant contributing factor to Zeszutek's death.

248After the fact, the two male accused gave Ms A.B. their bloodied clothing to dispose of, which she did. Ms A.B. reported to the author of the Criminal Profile Report that she was threatened by the co-accused that they would do worse to her if she went to the authorities.

249The day after the assault, Ms A.B. told Claude Chaisson that his friend had taken quite a beating the night before and urged him to check on him as she was afraid he may have been killed. Zeszutek's body was found by police the afternoon of 26 March on the floor of his apartment. The residence was in disarray, blood splattered in the bedroom and living room, and with evidence of heavy drinking and drug use.

250On arrest Ms A.B. was detained at the Northern Treatment Centre. The intake health record describes her as emotional and crying, at one point stating "I feel I'm going to have a nervous breakdown or something" She was treated with Ativan.

251During her interview with Dr. Wilkie, Ms A.B. did not want to talk about the incident saying she "felt really shitty" about it.

252Ms A.B. received a 5 year and 6 month custodial disposition (27 months pre-sentence custody) and was ultimately transferred to Grand Valley Institute for women to serve this sentence.

b. Mischief Endangering Life

253This offence was committed on 3 April of 2003. Ms A.B. was 22 years old and was in detention at the Hamilton Wentworth Detention Centre on the first degree murder charge. She had just returned from court on an appearance for a preliminary hearing on that matter.

254Although she had spent periods of time at the Hamilton jail in the years 2000-2001 and had a well documented history there of Ritalin treatment for ADHD, she was denied that medication while there and was not receiving anything at all to address her ADHD.

255There is scant evidence relating to this offence but the defence admits that having returned from court and put into a dirty cell, Ms A.B. put her mattress on fire and caused a flood by blocking her toilet. She put the fire out herself and was found sitting on a table crying by the time staff were alerted to the issue.

256There was no harm, physical or psychological, that befell anyone. Her guilty plea on this charge, entered 12 days post offence, resulted in a 14 day custodial sentence.

257Within 9 days of committing this offence Ms A.B. was segregated and placed on suicide watch. During a health check at the jail she confided in the nurse that she was afraid she was going to "lose it" stating that things were "building up" that she had had a visit with her father and daughter and that while that had gone well, she for the first time had cried about her situation with the pending murder charge.

c. Hostage Taking x2

258This incident took place on 22 August 2005, ten months after Ms A.B.'s admission to Grand Valley Institute for Women for her sentence on the manslaughter conviction. She was 24 years old. This was Ms A.B.'s first federal prison term and she was struggling with institutional rules on the secure unit.

259While in the secure unit, Ms A.B. met Renee Acoby an older inmate serving a 21.5 year sentence for previous hostage takings in institutions. They became engaged in an intimate relationship.

260The two women ran into the nurse's office where Behavioural Counsellor Lee and Registered Nurse Clarke were working. Acoby tied Clarke's hands behind her back with electrical cord, tied her legs with tensor bandages, put gauze around her face and eyes and pulled a leather belt tight across her eyes.

261Ms A.B. bound Lee's arms and legs with gauze and put gauze over her eyes.

262Both women brandished "shanks" Ms A.B.'s fashioned from a broken piece of mirror. She used that to cause some superficial scratching to Lee's arms.

263Acoby and Ms A.B. force fed their victims medications that were found in the nurse's office.

264Acoby compiled a list of 6 demands addressing an increase in mobility on the unit and more access to programming. Both women signed the demand.

265According to Lee, Acoby and A.B. told her numerous times that this was not a "personal thing" and they were not angry at either her or Clarke. They were angry at the situation the institution.

266According to the victims and other witnesses it was clear from the beginning that Acoby was the leader and in charge of the situation. She conducted negotiations and made the decisions about how the hostage taking would proceed. A.B. willingly participated and followed Acoby's direction.

267Clarke was released first, and Lee later. The whole incident took about 4 hours.

268On examination at hospital, it was determined that Clarke had dangerously elevated blood pressure, a mark on the left side of her neck and had been forced to ingest 150mg of Seroquel, an anti-psychotic.

269Lee suffered two cigarette burns on her right shoulder, burn to the right armpit area caused from falling hot ash from a cigarette, a superficial one centimetre scratch on the right cheek. She was forced to ingest 10mg of Flexirel, a muscle relaxant, 150mg of Seroquel, and 10mg of Zyprexa Zydis, an atypical anti-psychotic. She suffered no long term effect.

270While at Grand Valley Institute it appears that Ms A.B. was being treated with Ritalin but was described as having some difficulty with extended periods of sustained attention.

271After her arrest, Ms A.B. was placed in segregation and transferred to Nova Institute for Woman in Nova Scotia where she remained in segregation and placed on Management Protocol.

272Ms A.B. entered a plea of guilty on the agreed statement of fact. On receiving a sentence of 3 years, 6 months consecutive to the manslaughter sentence, Ms A.B. was transferred to Joliette Institute for Women in Québec, where Management Protocol continued.

273Dr. Wilkie reported that when interviewed about this incident, Ms A.B. said she was bored, the guards were being "dicks" and there was little access to programs or activities. She told Dr. Wilkie "I wish I would have done it different" and "I would do anything to go back and make that not happen".

d. Robbery

274In August 2013 Ms A.B. was charged with robbery. She was in Hamilton having been released on warrant expiry in June of 2013.

275She was not taking any medication to address her ADHD.

276Ms A.B. was with another male, Easton Jones, riding their bicycles when they came across the victim in an alleyway, also with a bicycle. Ms. A.B.'s companion accused the victim of having stolen his bike and when the victim denied it, A.B. pushed him from behind. The victim fell to the ground but was uninjured. Ms A.B.'s accomplice took the victim's bicycle and left another one behind for the victim.

277The victim was able to ride the bicycle away and contact police. No victim impact statement was available.

278The stolen bicycle was recovered when Ms A.B. and the other male were arrested.

279Easton Jones wasn't charged.

280Again, Ms A.B. entered a plea of guilty. Her sentence was 6 months custody, pre-sentence custody of 9 months and 12 months' probation.

5) Analysis of Pattern Evidence

281In assessing the evidence for a pattern, I look first to the behavioural elements of the predicate offence from which a pattern may be discerned.

282I find that in committing the predicate offence, Ms A.B. went to a known drug house, was herself under the influence of drugs, was in the company of two males of questionable character, and coming upon Ms Clairmont, exacted retaliation for an earlier assault perpetrated by Ms Clairmont a few weeks before.

283She was unrestrained in her attack, inflicting multiple puncture wounds with a knife with serious, albeit non-life threatening personal injury, but with long term physical and psychological effect and without regard to the foreseeable consequences of that attack.

284During the beating of Zeszutek, Ms A.B. was then under the influence of both alcohol and drugs, she was again in the company of men, of whom at least two, Kohl and Hill, were of questionable character. I note as well that Kohl was the father of A.B.'s daughter and although he was in a relationship with another woman, he clearly had some lingering influence on Ms A.B..

285While Ms A.B. did not initiate the attack on Keszutek, she participated once she came out of the washroom and failed to distance herself from the scene or seek assistance for Zeszutek after leaving the apartment and being free and clear of Kohl and Hill.

286I find Ms A.B.'s participation to have been the spontaneous result of the influence of Kohl, who was convicted of murder, and Hill, who was convicted of manslaughter, and the disinhibiting effect of her drug and alcohol consumption over several hours. It was without personal motivation or animus toward Zeszutek.

287I find the behaviour she demonstrated and harm she inflicted during Zeszutek's beating, although violent, was not repetitive of that in the predicate offence, which was much more deliberate, involving the unprovoked use of a knife and motivated by retaliation.

288I do not find the manslaughter fitting the elements of a s.753(1)(a)(i) pattern in relation to the predicate offence.

289I do find that it fits the broader pattern of persistent aggressive behaviour demonstrating a clear disregard or indifference to the reasonably forseeable consequences of her behaviour within the meaning of s. 753(1)(a)(ii).

290The mischief endangering life is, I find, an anomaly within the context for the predicate offence and the other offences relied on by the Crown.

291I agree with the defence argument that the context during which it occurs is unlike any of the other offences. Ms A.B. had just returned from court stressed from whatever had happened that day at the preliminary hearing, her cell had been changed and she was placed in a dirty cell. Despite a well documented history of ADHD, she was not receiving any treatment at all.

292While this offence falls within the meaning of a "serious violent offence" no one was harmed in any way, physically or psychologically. The danger she created was quickly abated when she put the fire out herself even before it came to the attention of the guard. When guards did arrive Ms A.B. was crying.

293Unlike the predicate offence this incident was the result of frustration and not motivated by any animus toward other persons. Nor do I find that it shows a substantial degree of indifference to others. Ms A.B. put the fire out herself almost immediately after starting it.

294I find the behaviour during this offence bears no connection to the predicate offence and does not form part of any pattern for the purposes of s. 753(1)(a)(i) or (ii).

295During the hostage takings Ms A.B. is in an institutional setting and presumably free of alcohol or drugs.

296The behaviour Ms A.B. demonstrated in the hostage taking was in a prison setting while under the direction and influence of Renee Acoby. It was designed by Acoby to change certain conditions for inmates in secure custody. The motivation was entirely different from the predicate offence. In the course of the four hours of the hostage taking Ms. A.B. frequently pledged her allegiance to Acoby.

297Accepting that she was not the instigator, Ms A.B.'s participation nonetheless was a repetition of broadly defined aggression toward the two victims, involved the use of weapons, included some physical harm to those victims (albeit minimal) and threats of physical harm, and in the case of at least one of them long lasting psychological harm. In these circumstances the threat was more of a psychological nature, something that Ms A.B. has not demonstrated in any of her other offences.

298Her behaviour during the hostage situation was not consistent or repetitive of the nature and kind of behaviour in the predicate offence, nor was her motivation.

299Dr. Wilkie considers Ms A.B. a follower, easily influenced by others to participate in criminal conduct. Query whether she would have initiated or conducted a hostage taking of her own accord.

300I do not find the hallmarks of a s. 753(1)(a)(i) pattern in the hostage taking.

301However Ms A.B.'s participation in this offence is another example of persistent aggressive behaviour showing a total disregard for the reasonably foreseeable consequences of that behaviour to her victims and falls within the pattern elements in s. 753(1)(a)(ii).

302During the robbery offence Ms A.B. was again in the company of an accomplice. It was he who initiated the contact and the verbal altercation with the victim. The issue was whether the victim had stolen Easton's bicycle. When the victim wouldn't give up the bicycle, Ms A.B. pushed him from behind causing him to fall.

303There was no evidence of the presence or use of weapons, the influence of drugs or alcohol, or unrestrained aggression. This was a push. The harm to the victim is unproven and the dangerousness of the behaviour was significantly less.

304Like the mischief endangering life, I do not find that the behaviour in the robbery forms part of a pattern for the purposes of s. 753(1)(a)(i) or (ii).

305I find the manslaughter, the hostage takings and predicate offence of aggravated assault meet the threshold of elements as expressed in Neve, supra, as required by s. 753(1)(a)(ii).

306I am satisfied beyond a reasonable doubt that In the commission of these offences Ms A.B. has shown a conscious but indifferent awareness of causing harm to others in her patterned conduct.

307This finding is consistent with Dr. Wilkie's psychiatric diagnosis of Ms A.B. having an Anti-Social Personality Disorder, the essential feature of which is a pervasive pattern of disregard for, and violation of, the rights of others.

308While the defence strenuously argued that context places Ms A.B.'s offences outside a pattern in either category, that argument fails to recognize the underlying theme of indifference to consequences, and the consistency of that characteristic with Ms A.B.'s psychiatric diagnosis.

309I must now considerate second threshold of "threat" in s.753(1)(a).

6) Does Ms. A.B. Constitute a Threat to Others?

310The pattern of persistent aggressive behavior, of which the predicate offence is one example, must also demonstrate that Ms. A.B. constitutes a threat to the life, safety or physical well-being of other persons.

311Such a finding does not require a prediction of the future beyond a reasonable doubt, rather it requires a finding of dangerousness beyond a reasonable doubt because there is a certainty to the potential threat: R v Lyons, [1987] S.C.J. No. 62, at para. 120, citing Morden, J. R v Knight (1975), 27 C.C.C. (2d) 343 at 356 (Ont. H. C.).

312In this analysis I look to the offences that form the pattern, various psychiatric diagnoses, Ms. A.B.'s response to treatment while incarcerated, and her behavior while on statutory release.

b. The Past Offences

313I acknowledge that Ms. A.B. has always entered pleas of guilty, never putting the Crown to its onus of proof and that immediately after the Zeszutek beating she showed some concern that he may have been killed.

314I acknowledge as well that throughout her report, Dr. Wilkie noted Ms A.B.'s expression of remorse for each of the other serious violent offences.

315However her persistent aggressive behaviour demonstrates that she is incapable of recalling the effect she has had on her victims or the remorse she expresses after each event before going on to reoffend in an aggressive manner.

316That apparent incapability in the past contributes to a finding that Ms A.B. constitutes a threat to others in the future.

317The defence argument that Ms A.B. has always shown remorse ignores the pattern of indifference to consequences at the time of each of the offences [emphasis mine] and any change to that indifference with the passage of time.

b. Psychiatric Reports and Diagnoses

318I have considered these reports primarily for the diagnoses contained and the relationship of those diagnoses to the threat to others in the future in the absence of recommended treatment.

319When Ms A.B. was age 19, Dr. Friesen opined that her history and interpersonal style suggested Conduct Disorder. That is the same diagnosis ascribed to her by Dr. Ben-Aron four years later.

320Dr. Wilkie considered Ms A.B.'s legal and interpersonal difficulties to be grounded in personality dysfunction and made her diagnosis of an Anti-Social Personality Disorder, with borderline personality traits, stating that conduct disordered behaviour is a precursor to that diagnosis.

321According to Dr. Wilkie treatment for an Anti-Social Personality Disorder focuses on anger management, social skills and vocational training, possibly with adjuvant anti-aggressive pharmacotherapy treatment.

322That treatment modality is the first of Dr. Wilkie's recommendations for Ms A.B. in the future.

323Similar recommendations for psychotherapy, social skills and vocational training were recommended as early as 2004 by Dr. Ben-Aron.

324From all of the institutional records tendered at this hearing, it does not appear that such targeted therapy (with the exception of one anger management course) was ever offered to Ms. A.B. at either provincial or federal levels and most certainly not in the 30 months plus that she has been at the Hamilton Wentworth Detention Centre in segregation.

325The focus of her treatment while in penitentiary has largely been Dialectical Behaviour therapy (DBT) which Dr. Wilkie stated is most suited to Borderline Personality Disorder for which Ms A.B. has 5 or more traits out of nine. It is not her primary disorder.

326There was little treatment aimed at substance abuse.

327I find that the lack of sustained treatment targeted to the diagnosis of Anti-Social Personality Disorder (including social skills and vocational training) and substance abuse, places Ms A.B. in a present position [emphasis mine] where she will likely constitute a threat to others in the future.

c. Response to Treatment While Incarcerated

328As set out earlier in these reasons, Ms A.B.'s response to treatment has been mixed.

329In the case of some treatment records pertaining to Ms A.B., the reasons for missed sessions are not always clearly set out and may be subject to speculative interpretation.

330Overall, the thrust of the recommendations made by Dr. Ben-Aron in his assessment for the homicide were not followed during her subsequent federal incarcerations. Whether that was because of availability of such programmes, or other institutional constraints or issues that limited or prevented access, or because of Ms A.B.'s lack of interest or her inability to comprehend and apply principles because of cognitive or other limitations including inconsistent treatment for ADHD, is not clear. I find it was likely combination of all of those factors.

331A similar constellation of factors during her next period of incarceration would hinder Ms A.B.'s opportunity for success. Without broad, intense, targeted and sustained treatment, Ms A.B.'s indifference to the reasonably foreseeable consequences to her behaviour will contribute to her being an ongoing threat to the public.

d. Behaviour While on Statutory Release

332Ms A.B. had three statutory releases between 2010 and 2013. Each was revoked for behavioural misconducts within days or weeks of her release on conditions. She was either unable to abide by residence or curfew restrictions or had used alcohol or drugs while in the community but did not reoffend violently.

I. CONCLUSION

333With this analysis I am satisfied of Ms A.B.'s dangerousness beyond a reasonable doubt.

334I do so not because of Dr. Wilkie's risk assessment. Her psychiatric opinion that that regard is not my judgment. I do so because Ms A.B.'s Anti-Social Personality Disorder, if left untreated, leaves a present certainty to her threat to the life, safety or physical or mental well-being to others founded in the proven pattern under s. 753(1)(a)(ii) of persistent behavior showing a substantial degree of indifference to the reasonably foreseeable consequences of her behavior to others.

335I am mandated to find Ms A.B. a dangerous offender.

J. THE APPROPRIATE SENTENCE

336Having found Ms A.B. a dangerous offender I must consider the imposition of one of three sentence options under s.752(4).

a. Indeterminate Sentence

337Under s. 753(4.1), the presumptive sentence is one of an indeterminate period unless I am satisfied, by the evidence adduced during the hearing of the application, that there is a reasonable expectation that a lesser measure under ss. 753(4)(b) or (c) will adequately protect the public against the commission of murder or a serious personal injury offence by Ms A.B..

b. Other Sentencing Options

338The Ontario Court of Appeal in R v D. (F.E.), 2007 ONCA 246 , [2007] O.J. No. 1278, citing R v Wormell with approval, held that evidence of the "reasonable expectation" carries no burden of proof on either the Crown or defence explaining that this is an issue for the court to determine based on the evidentiary record as a whole.

339I find unequivocally that a determinate sentence alone will not serve to protect the interests of the public. The psychiatric reports of both Drs. Ben-Aron and Wilkie speak to the need for targeted therapy for Ms A.B., without which, despite expressed good intentions, she is at high risk to reoffend violently.

340Even with successful therapeutic interventions, Ms A.B. has no community supports, outside of her father and daughter, and if she were to paroled, her parole officer. She needs to develop the required skills to find additional stable and pro-social associations and habits.

341Success for Ms A.B., and protection of society, would require some post sentence controls or she may well slip into criminogenic associations and substance abuse, both accelerants to her aggressive behaviours.

342The normal means of achieving such control are treatment, community supervision, or the deterrent effect of a fit determinate sentence.

343I find that there is a reasonable expectation that a determinate sentence with a long term supervision order will adequately protect the public against Ms A.B. committing murder or a serious personal injury offence.

344I make this finding in part because there are some weaknesses to the factual foundation Dr. Wilkie's assessment of risk when viewed from the legal perspective as was set out earlier in these reasons.

345Dr. Wilkie conceded that her risk assessment did not, nor could she at the hearing, speak to the severity of any recidivism by Ms A.B..

346Dr. Wilkie opined that Ms A.B.'s most elevated score on the PCL-R, the factor 2 behavioural dyscontrol score, would allow for more potential interventions in terms of a risk management plan.

347There is other evidence to support this finding:

• To her credit Ms A.B. has acknowledged that she is not ready for release without further treatment. She has instructed her counsel to seek a significant sentence.

• She appears more motivated than in the past to accept and complete that treatment and has the additional motivating factor of connection with her daughter.

• There were institutional impediments to her success in the past, the most salient of which was her placement on Management Protocol, with the unrealistic behaviour expectations while there and the attendant isolation for a prolonged period that the protocol imposed. While in provincial institutions there was a lack of programming targeted to Ms A.B.'s needs and a failure to appropriately and consistently treat her ADHD.

• Ms A.B. co-operated fully with Dr. Wilkie and staff through multiple clinical interviews and testing. She acknowledged the harm she has done. I find her expressions of remorse to Dr. Wilkie and in her allocution to the court be genuine.

• Ms A.B. has always entered pleas of guilty to her offences, never putting the Crown to its onus of proof.

• Ms A.B. has enlisted the direct support of Senator Pate and the Elizabeth Fry Society to act as advocate while incarcerated and beyond to ensure that there is follow through with recommended treatment and programming modalities.

348Petrina Lemieux spoke to all of the programmes and treatment therapies made available to inmates. There is nothing recommended by either of Drs. Ben-Aron or Wilkie that is not available in a federal institution.

349One of Ms A.B.'s frustrations has been the lack of educational, vocational and social skills training. She has been incarcerated for 17 years, the longest period between 2004 and 2013. Common sense dictates that with such a prolonged period of incarceration, her vocational and social skills would be sadly wanting with an attendant negative effect on her behaviour.

350That kind of broad skills programming was recommended by both psychiatrists. Yet there seems to have been little focus on those issues or an effort to adjust programming to meet Ms A.B.'s limitations. Ms A.B. has some artistic talent and has been able to learn a second language despite those limitations. She should be able to succeed at targeted vocational training.

351Nor has there been any significant substance abuse treatment, a requirement to address one of the contributing factors to Ms A.B.'s criminogenic behaviour.

352Ms Lemieux testified that accommodation and adjustment to the specific needs of inmates is possible within federal institutions.

353I find that had there been the comprehensive rehabilitation plan contemplated by Dr. Ben-Aron before her first admission to a federal penitentiary, coupled with his recommended pre-treatment evaluations to provide any necessary adjustments, along with a single consistent case manager, Ms A.B.'s rehabilitation would have met with more success.

354There is other evidence to support my finding of a reasonable expectation of the success of a determinate sentence and LTSO:

• Ms A.B. was the only inmate of seven in all of Canada on Management Protocol who managed to work her way off those restrictions, cascading down to general population in a two year period.

• While at Joliette Institution from 2006 to 2012, she had her most successful years: her Ritalin treatment ADHD was consistent while there; she developed a good relationship with her case management team taking their advice about treatment modules and seeking their assistance in dealing with issues with other inmates; she developed some capacity for insight, self-critique and empathy.

355Other programme performance reports showed progress in Ms. A.B.'s identification of risk factors and improvement in attitude.

356Post release programming and support is also of importance to be successful in the community. Because there is only one government run Community Correctional Centre for women with just two beds in all of Canada, funding can be made available to a Community based Residential Facility to provide extra supervision and or, a personal support worker for Ms A.B..

357There is no evidence that this was ever provided to Ms. A.B. in the past.

358It is clear from the testimony of Senator Pate that a personal support worker would be of assistance to Ms A.B. whose life skills are wanting due to years of incarceration. She related an encounter that Ms A.B. had with a bank teller when she tried to open a bank account while on one of her statutory releases. Ms A.B. left the bank in frustration because she was mocked by the teller for not understanding the process or having the appropriate documents.

359Frustration due to her incapacities has been one of Ms A.B.'s challenges.

360It is not unreasonable for Correctional Services Canada to provide a personal support worker to Ms A.B. when her successful reintegration could be so directly enhanced. Funding is available.

361Offenders subject to a long term supervision order at warrant expiry are released with a plan subject to conditions under s. 134.1 of the CCRA and regulations thereunder. The Parole Board may impose conditions additional to those prescribed that it considers reasonable and necessary to protect society, including any victim.

362Urinalysis is available for drug detection. Other conditions may include counselling and direction for ongoing treatment and adherence pharmacological regime as directed by a treating psychiatrist.

363The testimony of witnesses from Correctional Services Canada earlier outlined sets out the process for breach of a long term supervision order, including a pre-emptive warrant for arrest and the "safety valve" of single or successive s. 810 orders. What was not addressed by those witnesses is the availability of an application for an indeterminate sentence or a new long term supervision order under s. 753.01 should Ms A.B. re-offend.

364In short, a long term supervision order entails significantly more detailed conditions and monitoring than a probation order or regular parole with additional options for supervision even after the expiry of the terms of the order.

365I find a long term supervision order will give greater certainty to the protection of society in this case.

c. The Fit Sentence

366In determining a fit sentence I find these to be the salient aggravating circumstances:

• a weapon was used in the predicate offence causing both physical and psychological injury to Ms Clairmont

• at the time of the offence Ms A.B. had an unchecked addition to crystal methamphetamine

• she was on probation

• her criminal record discloses other crimes of violence

• diagnosed with an anti-social personality disorder, Ms A.B. is at high risk to reoffend in some fashion absent any treatment

367The mitigating circumstances are these:

• Ms A.B. entered a plea of guilty to the predicate offence and breach of probation thereby expressing her willingness to be held accountable

• she has acknowledged her responsibility for these and other offences expressing her remorse

• she has co-operated fully with the assessment process and the dangerous offender application

• she acknowledges she is not ready for release and the need for treatment and skills training

• she appears to be genuinely motivated to change her behaviour

368Given the totality of the circumstances a sentence of 7 years in the penitentiary is warranted. With the application of credit for pre-sentence detention or 2 years and six months, calculated on a 1.5 to 1 as 3 years and nine months, the remainder to be served is 3 years and 3 months.

369That period of incarceration will be followed by a 10 year Long Term Supervision Order on terms and conditions as set by the Parole Board.

370A concurrent sentence of 4 months is to be served on the breach of probation.

371Ancillary orders are made for a lifetime firearms prohibition pursuant to s. 109(1)(a) and (3) of the Code as well as an order for the collection of Ms A.B.'s DNA. In addition, an order will issue under s. 743.21 that Ms A.B. be prohibited from communicating, directly or indirectly, with Ms Kimberley Clairmont.

372Pursuant to s. 760 of the Code, the clerk of this court will forward to Correctional Services of Canada:

• a copy of the transcripts of this proceeding
• a copy of the report of Dr. Walter J. Friesen, exhibit 14 tab 5
• a copy of the report of Dr. M.H. Ben-Aron, exhibit 14, tab 6
• a copy of the report of Dr. E. Forouzan, exhibit 14, tab 14
• a copy of the report of Dr. Treena Wilkie, exhibit 8
• these reasons for sentence

Released: June 19, 2017

Signed: Justice P.H.M. Agro