ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
EDWARD DIETRICH HAMEL
Before: Justice Peter T. Bishop
Heard on: November 14, 15 & 17, 2016
Reasons for Judgment released on: January 5, 2017
Counsel:
- Peter Keen, for the Crown
- Anne Pollock and Karen Seeley, for the defendant Edward Dietrich Hamel
BISHOP J.:
BACKGROUND
1Edward Dietrich Hamel was charged as follows:
That on or about the 27th day of April, 2015 at the City of Dryden in the Northwest Region did carry weapons, to wit two knives for purpose dangerous to the public peace, contrary to Section 88 of the Criminal Code;
On or about the 30th day of April, 2015 at the City of Kenora in the Northwest Region did by word of mouth did knowingly utter a threat to people of St. Lawrence Valley Treatment and Corrections Centre to cause death to people at the St. Lawrence Valley Treatment and Corrections Centre, contrary to s 264.1(1)(a) of the Criminal Code;
On or about the 19th day of May, 2015 at the City of Kenora did by word of mouth knowingly utter a threat to Adrian Matthew Hiebert to cause bodily harm to Adrian Matthew Hiebert contrary to Section 264.1(1)(a) of the Criminal Code;
That on or about 8th day of May, 2015 at the City of Kenora in the Northwest Region did by word of mouth knowingly utter a threat to Dr. Sass to cause death to Dr. Sass contrary to Section 264.1(1)(a) of the Criminal Code.
2On September 28, 2015 Mr. Hamel plead guilty to the above charges, was found guilty and a presentence report was ordered.
3The Crown commenced a dangerous offender application using the Section 88 possession of weapons dangerous charge as the predicate offence. The Crown sought that Mr. Hamel be declared a dangerous offender and the defence opposed that relief.
4At the beginning of the second day of the hearing, the accused changed his instructions to counsel and consented to be declared a dangerous offender and accepted the recommendation of a 6 year determinate sentence in addition to the time served (18 months and 20 days as of November 15, 2016) followed by a 10 year long term supervision order.
5At that time, with partial evidence, the court could not accept the accused's position, particularly when the defence position as stated in its factum was that the s 88 offence was not, on these facts, a predicate offence notwithstanding that the defence agreed that the s 88 offence was a predicate offence for the purpose of obtaining a forensic psychiatric assessment for this sentencing hearing. The court continued to hear evidence until the conclusion of the Crown's case.
6Mr. Hamel elected not to call any evidence.
7Written submissions were requested and received from both the Crown and Mr. Hamel.
PREDICATE OFFENCE
8The predicate offence before the court is a Section 88 of the Criminal Code, namely weapons dangerous. A predicate offence includes a serious personal injury offence and is defined in Section 752 of the Criminal Code which states as follows:
"serious personal injury offence" means:
a) Indictable offence other than high treason, treason, first degree murder, second degree murder, involving:
i. The use or attempted use of violence against another person or,
ii. Conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person, and for which the offender may be sentenced to imprisonment for 10 years or more.
9The court must be satisfied that Mr. Hamel's intention was to engage in conduct endangering or likely to endanger the life or safety of another person, or inflicting or likely to inflict severe psychological damage on another person.
10The test is not what others thought or felt but rather the intention of Mr. Hamel.
11Here, the Section 88 offence started out as an attempt at self-harm by Mr. Hamel which brought the police and other authorities to a location at the Dryden overpass.
12At first, Mr. Hamel was tasered ineffectively. Then he dropped the knives from his throat area and moved around a police cruiser, then towards the police constables. The knives where facing outward, he had direct eye contact with at least one officer and was yelling. He was either intending to do harm to the police officers or threatening the police officers who then took corrective measures to subdue him. It then by definition became a predicate offence.
13After hearing all the evidence, I conclude that Mr. Hamel's behaviour and intention changed from one of self-harm (attempt to commit suicide) or to manipulate relief from the authorities to one of endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person.
CRIMINAL HISTORY AND PATTERN OF BEHAVIOUR
14When he was 15 years old he was convicted of taking a high school class hostage at gun point. Since that conviction for weapons dangerous charge, he has continued to offend. His record includes 34 prior convictions that include:
- 6 counts of forcible confinement
- Use of firearm
- Arson
- Assault
- Assault with a weapon
- 8 counts of utter threats
15I am finding that the Crown has established a pattern of behaviour and a failure on Mr. Hamel's part to restrain his behaviour and has established that the likelihood of future harm that he may inflict death or injury or severe psychological damage on other person.
16Further, Mr. Hamel has demonstrated a substantial degree of indifference, respecting the reasonable foreseeable consequences of his behaviour.
17Mr. Hamel has engaged in aggressive acts aimed at manipulating others. When the goals that he wishes to achieve are not met, he threatens self-harm and when that does not work he escalates his behaviour until the authorities have no choice but to react.
18Mr. Hamel's behaviour occurs both when he is in custody and out of custody. He has put the public at risk as in the Robin's Donuts offence when he said he had a bomb; and the school hostage taking; and the fake hostage taking when he believed he wasn't getting the services that he wanted.
19Threats are a pattern of his behaviour. These threats can and did inflict severe psychological harm and damage on those who were threatened.
20The court concludes that Mr. Hamel has made so many threats in the past that his behaviour is likely to continue. Dr. Philip Klassen, the forensic psychiatrist who prepared an assessment for this hearing, commented that Mr. Hamel's future actions are likely to be threatening in nature. Throughout most of his adult life Mr. Hamel has been physically restrained leaving him with self-harm and threats as his only option for aggressive behaviour.
VICTIM IMPACT
21There is evidence before me that the victims of Mr. Hamel's threats have been greatly affected psychologically by his utterances and are partially summarized as follows:
One victim stated that she was distraught by Mr. Hamel's threat to kill her and disturbed by his sexual deviant fantasies. She felt she was in great danger from him and believed that he was fixated on her and had nightmares about Mr. Hamel being released to the community and seeking her out.
A correctional officer had to endure Mr. Hamel's behaviour and found it extremely stressful and not part of any normal working conditions.
Another correctional officer received a note from Mr. Hamel as follows: "Eleanor you are going to die, you bitch, whore, die like the rest of them, going to crush your skull and cut you all up. You won't know when it will happen". The officer was aware of inmate Hamel's history of violence manipulative behaviour and believed that Mr. Hamel intended to carry out the threats conveyed in the note to her. This is evidence of severe psychological harm.
22Mr. Hamel threats to skin, kill, cut up, have sex with, dismember, and eat women are the kinds of threats that would terrify any member of society. They are repeated again and again and the court can only conclude that the intention of Mr. Hamel was to get a response or action for his needs but was willfully blind to the severe psychological damage he was causing. He has also threatened to kill judicial officers.
LIKELIHOOD OF FUTURE VIOLENCE
23There is a likelihood of future violence on Mr. Hamel's behalf. The vast majority of Mr. Hamel's threats occurred when he was behind bars and was unable to physically assault others. Examples of his physical violence in custody includes stabbing another person with a pencil with a view to increasing his sentence and remaining in his present facility and an attempt at strangulation of another person for purportedly using Mr. Hamel's cigarette butts but no charges were laid in that matter due to mental health issues either with the complainant or Mr. Hamel.
24The most recent standoff with the police in Dryden again establishes that there is a likelihood of future physical violence if Mr. Hamel is released.
25I have reviewed the voluminous material and have digested several assessments and evaluations by psychiatrists and psychologists. Dr. Summer stated that "while the desired effects of Mr. Hamel's threats are to manipulate the behaviour of others, there is no compelling reason to think that he would not escalate his behaviour in a manner that he has scripted for himself. Of grave concern, he reported that he(Hamel) would feel satisfaction, having uttered warnings about his own behaviour without being heeded, by acting out violently so as to cause some significant harm to another person, or community; to him would constitute a kind of vindication".
26A senior psychologist, Dr. Bossen at Edmonton Maximum Security Facility, believed Mr. Hamel when he told him that he was going to kill a parole officer, cut her up, fry her, and eat her. When given an opportunity to recant he did not. Dr. Bossen believed that Mr. Hamel's threat was serious.
27Dr. Klassen questioned Mr. Hamel about his threatening behaviour which was minimized by him. He admitted to stabbing prisoner Lavoie with a view to increasing his sentence and he was quite prepared to harm others to achieve his goals.
28There are further examples of persistent aggressive behaviour by threatening as follows:
(i) The threats of sexually sadistic and homicidal acts aimed at manipulating staff;
(ii) The bomb threat at Robins Donuts;
(iii) The threats to kill medical staff;
(iv) The threats to cut the Prime Minister's throat, letting the blood spill over his wife;
(v) The reported hostage taking resulting in the sniper being placed on a roof on the building opposite his and surrounding streets being cordoned off;
(vi) The offence at bar;
(vii) his threating behaviour since being placed in custody, including the threat to cut Adrian Hiebert's throat, rub his girlfriend's twat and cut her girlfriend's cunt out;
(viii) The threat sent to the Crown's office, in an effort to be made a dangerous offender;
(ix) The bomb threat towards Dryden High School, the very school in which he engaged in a hostage taking as a youth.
29Dr. Klassen testified it was his view that there was a high risk of future offending and aggressive behaviour though he could not conclude or predict the form of the behaviour that might be taken by Mr. Hamel.
DEFENCE SUBMISSIONS
30The defense submits that Mr. Hamel's more generalized pattern of offending is not what is being demonstrated in this index offence, which does not include threatening. I disagree, Mr. Hamel's behaviour was inherently threatening.
31The defence submits that Mr. Hamel was engaged in very brief incidents which were resolved by the police very quickly and were used as instruments to achieve his goals and not for the purpose of inflicting harm on others. I am finding just the opposite; that if there were not forceful and timely responses by the police, the consequences of Mr. Hamel's behaviour could have been catastrophic.
VICTIM IMPACT STATEMENTS
32I have reviewed the Victim Impact statements and note that many do not comply with Forms 34.2 or 34.3 as some of the victims are expressing opinions that others may or may not feel. I have discounted and edited out those portions of the Victim Impact statements that are not relevant to, nor within the writer's knowledge as they may have viewed other statements and gained information from other sources.
PSYCHIATRIC ASSESSMENT AND MANAGEMENT
33It was Dr. Klassen's expectation that Mr. Hamel needed to be managed through state control of his behaviour. He concluded that Mr. Hamel's risk to reoffend will be reduced if, when he is the community, he resides at a community correctional facility or some kind of structured release facility.
34Dr. Klassen stated that "I think this gentlemen's risk would be lower if he were in a more structured setting, although still at least in terms of aggressive behaviour not inconsequential and higher if he was just completely on his own without any kind of structure". In conclusion, Dr. Klassen stated that the best place for Mr. Hamel is a community correctional facility or community residential facility. That has to be accomplished through a prison disposition.
35It is clear that Mr. Hamel has been institutionalized and both he and his family recognize that he needs supports on basic life skills which they or communities cannot provide to him.
DANGEROUS OFFENDER FINDING
36After hearing all of the evidence, reviewing the written submissions and factum, the oral evidence, the Victim Impact Statements and the Presentence Report, I am finding that the Crown has presented evidence beyond a reasonable doubt to declare Mr. Hamel a dangerous offender both pursuant to Section 753(1)(a)(i) and/or Section 753(1)(a)(ii) of the Criminal Code.
37Originally, the Crown was seeking a dangerous offender's determinative sentence of 20 years but changed its position after hearing Dr. Klassen's evidence that it is not reasonable for him to be incarcerated indefinitely. Mr. Hamel's risks require structured supervision and he will present a challenge whether he is in custody or in the community. The fact that his supervision will present a challenge is not reason for him to be incarcerated indefinitely. An indefinite depravation of Mr. Hamel's liberty can be justified only by reference to the risk he presents. The risk is the same whether his is supervised in custody or in the community. Dr Klassen opined that Mr. Hamel's risk will decrease when he completes his fifth decade of life.
SENTENCE
38I will not deviate from the joint position presented and find that Mr. Hamel is a dangerous offender and impose on the s 88 charge a 6 year determinate sentence in addition to the time served of 20 months and 12 days as of today's date, followed by a 10 year long term supervision order. I impose a 12 month sentence concurrent on each of the remaining three charges.
39Mr. Hamel will also provide a sample of his blood for DNA analysis within 30 days and will not own, possess or use a firearm, ammunition or explosive device for life pursuant to s109 of the Criminal Code.
Released: January 5, 2017
Signed: "Justice Peter T. Bishop"