R. v. Broadfoot, 2018 ONCJ 215
ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
IVAN BROADFOOT
Before Justice Mara Greene
Reasons for judgement released March 27, 2018
P. Tomlinson……….……..………………………………………… for the Respondent
E. Winocur and K. Kirec………………..…………………….… for the Applicant
1On July 27, 2016, Mr. Broadfoot entered a plea of guilty to one count of aggravated assault. The Crown seeks to have him declared a dangerous offender and asks for an indeterminate sentence to be imposed. Mr. Broadfoot argued that the Crown has not met their burden on this application and argued that a five year sentence ought to be imposed as a fit sentence for this offence.
Facts of the Predicate Offence
2In September, 2015, Mr. Broadfoot was assessed at the emergency department at CAMH. He was depressed and had suicidal thoughts. Mr. Broadfoot did not want to take any medication and did not want to address his alcohol dependency. Mr. Broadfoot was discharged and it was recommended that he seek community assistance.
3Just over one month later, on October 15, 2015, Mr. Broadfoot, who had recently stopped taking his psychotropic medication, had been drinking heavily and consumed a significant amount of Listerine. He was feeling stressed and helpless and attended at the Centre for Addiction and Mental Health (CAMH), the College Street location, for help. Mr. Broadfoot advised the hospital staff that he was feeling stressed and needed help. Mr. Broadfoot did not appear interested in discussing his problems any further. He asked for a TTC token and for some Lorazepam to go. Mr. Broadfoot was not admitted to hospital. Instead he was offered referrals for addiction services. The hospital documents from this visit stated that Mr. Broadfoot was not perceived as a being a risk to himself or others and that his needs were situational and linked to his homelessness.
[4] Mr. Broadfoot left CAMH and started to walk along College Street. Moments later, at 2:15 a.m., on October 16, 2015, Mr. Broadfoot pulled out a knife and approached a pedestrian who was walking down the street with her headphones on. Mr. Broadfoot attempted to stab her with the knife. The victim screamed and was able to deflect the first attempt at stabbing her. Mr. Broadfoot then stabbed her three more times. All three blows struck her head.
5Mr. Broadfoot then walked back to CAMH and stated that something bad had just happened. The police were contacted and Mr. Broadfoot was arrested.
6As a result of this offence, the victim suffered three lacerations to her head and one laceration to her left bicep. One of the lacerations was three inches in length while the others were one inch long. No victim impact material was filed with the court but this court can take judicial notice of the trauma and psychological harm the victim has suffered as a result of this unprovoked attack by a stranger on the street.
7Mr. Broadfoot has been in custody since his arrest. He has undergone three assessments since his arrest. One for fitness to stand trial, one to assess whether he was criminally responsible for his actions and one in preparation for the dangerous offender hearing. In the latter assessment, Mr. Broadfoot told the psychiatrist that if he had just taken a deep breath he probably would not have committed this offence. When asked why he stabbed this stranger, Mr. Broadfoot stated: “I had the idea to stab someone…. I was angry”. He further stated “I looked at my whole life… my childhood…the things I’ve been through”. At the dangerous offender hearing, Mr. Broadfoot testified that if he had been stronger the outcome would have been significantly worse.
Mr. Broadfoot’s Personal Circumstances
8This court had a significant amount of information about Mr. Broadfoot. This information came from numerous medical and psychiatric records and records from Winnipeg Child and Family Services (WCFS). The court was also provided with some prison records. In addition, a Gladue report was ordered and an assessment under 752.1 of the Criminal Code was also ordered. The Gladue report was prepared by Patti Pettigrew and the risk assessment was completed by Dr. Derek Pallandi.
9Mr. Broadfoot is 27 years old. He is recognized as a “Status Indian” under the Indian Act. He is registered with his father’s First Nation, the Nisichaayasihk Cree Nation in Manitoba. Mr. Broadfoot’s mother is from Norway House Cree Nation and Mr. Broadfoot’s grandmother on his mother’s side attended a residential school. Mr. Broadfoot has one sister, one brother and one half sister.
10Mr. Broadfoot’s mother was physically abused by his father for many years. Mr. Broadfoot’s father left the family home when Mr. Broadfoot was 15 months old, leaving his mother to raise four children all on her own. After he left, Mrs. Broadfoot attempted to raise her four children on her own but had significant struggles leading to the involvement of WCFS. According to the WCFS records, Mr. Broadfoot’s residence was chaotic and difficult. Mr. Broadfoot was bullied and abused by his older brother who is recorded as chasing Mr. Broadfoot around the house with a knife in addition to engaging in other bullying behaviour.
11When Mr. Broadfoot was approximately six years old he was placed in the care of WCFS. At that time his mother was suffering from depression and would yell and spank the children. She indicated that she was afraid that she would hurt her children.
12Mr. Broadfoot’s sister also struggled emotionally. She was sexually assaulted when she was 11 years old and attempted suicide. Mr. Broadfoot was very close to his sister and her attempted suicide had a significant impact on him.
13From 1996 until 2004 Mr. Broadfoot went in between WCFS placements and living with his mother. In 2004 he became a Crown ward.
14The majority of Mr. Broadfoot’s placements were less than ideal. His longest placement lasting just over one year. While this placement was stable in many respects, his foster mother was noted as being a little odd, as engaging in what were considered odd practices and she made no attempts to get Mr. Broadfoot engaged in activities outside of the home. WCFS ultimately found this placement to be unsuitable and removed Mr. Broadfoot from the home.
15The remainder of Mr. Broadfoot’s placements were brief in duration. Mr. Broadfoot had approximately 40 different placements while under the care of WCFS. Dr. Pallandi testified that this was by far the most placements he had ever seen. As the Crown properly pointed out “for Mr. Broadfoot the impact of becoming a ward of the state included constant upheaval, a lack of consistent home or parent, and the challenges to his identity as an indigenous man”. I note that on numerous occasions, Mr. Broadfoot was housed in hotels as opposed to with families or group homes. As Mr. Broadfoot aged, it became harder to place him. He did not trust anyone and acted out aggressively to his providers.
16By the age of 10 or 11 Mr. Broadfoot was using alcohol and by the time he was 14 he was using marijuana, crack cocaine and crystal methamphetamine. To this day, Mr. Broadfoot struggles with substance abuse.
17During his childhood, Mr. Broadfoot was subjected to racism. In particular, Mr. Broadfoot was taunted and teased because of his last name. Mr. Broadfoot went by his father’s last name of “Donkey” throughout his childhood and finally changed his name to his mother’s name, in part to avoid the ongoing ridicule. Mr. Broadfoot also faced some discrimination in his teens as he identified as two-spirited and for a period of time cross-dressed.
18In addition to the chaotic and at times abusive home environment and the slew of placements, Mr. Broadfoot was also sexually abused as a young person. While the exact details and timing of the sexual abuse remain factually unclear, what is clear is that Mr. Broadfoot was sexually abused when he was three or four by a relative and then at the age of 10 or 11 by a stranger. This sexual abuse had a tremendous impact on Mr. Broadfoot. Ms. Pettigrew wrote at pages 27-28 of the Gladue Report about the impact of sexual abuse on its young victims,
Male sexual abuse has a significant negative impact on the lives of victims. In a 2008 Literature Review, Health Canada reported:
Literature does provide overwhelming evidence of emotional disturbance in male victims. Anxiety, low self-esteem, guilt and shame, strong fear reactions, depression, post-traumatic stress disorder (PTSD), withdrawal and isolation, flashbacks, multiple personality disorder, emotional numbing, anger and aggressiveness, hyper-vigilance, passivity and an anxious need to please others have all been documented. Compared to non-abused men, adult male survivors of sexual abuse experience a greater degree of psychiatric problems, such as depression, anxiety, dissociation, suicidality and sleep disturbance.
19By the time Mr. Broadfoot was 14 or 15 years old he was working in the sex trade. Ms. Pettigrew referred to this as “survival sex”. Mr. Broadfoot told Ms. Pettigrew that he was assaulted while his friend was raped during their early years in prostitution. He was approximately 14 years old at the time.
20At the age of 18, Mr. Broadfoot moved to Vancouver where he lived in shelters and on the street. Mr. Broadfoot continued to work in the sex trade and use methamphetamines, cocaine and alcohol. While in Vancouver, Mr. Broadfoot decided to enter a detox facility. He was there for a short period of time and then returned to Winnipeg.
21At the age of 19, Mr. Broadfoot was still working in the sex trade. According to file documents, Mr. Broadfoot suffered a violent sexual attack when he was 19. According to Mr. Broadfoot, the police took no action when this happened.
22From Winnipeg, Mr. Broadfoot moved to Toronto. Once in Toronto, Mr. Broadfoot stayed in a variety of men’s shelters and made connections with the native community. He attended harm reduction groups at Aboriginal Legal Services and he went to Council Fire for counselling. At one point, Mr. Broadfoot stayed at Nishnawbe homes but was expelled for drinking. Mr. Broadfoot also attended the Youth Drug and Alcohol abuse prevention circle at Aboriginal Legal services from 2006 until 2012. His worker from the time, Colette McCombs, advised Ms. Pettigrew that she received one letter from Mr. Broadfoot while he was in jail. He wrote that he was having a hard time in jail and that he was hearing voices.
23Mr. Broadfoot has a grade 8 education and no vocational training. Other than working in the sex trade, Mr. Broadfoot has no history of employment.
Mental Health History
24Mr. Broadfoot has a complicated and significant mental health history. He has had numerous mental health admissions over the years and has frequently attended at hospitals seeking help. His attendances at hospitals were due to intentional overdosing on medication/alcohol, para-suicidal or suicidal gestures and behaviours, intoxication, withdrawal or disruptive behaviours.
25Mr. Broadfoot has had many different diagnoses over the years. At the age of 9, Mr. Broadfoot was noted as being aggressive and exhibiting numerous behavioural problems. In 1999 he was diagnosed with Conduct Disorder. Some of the earlier diagnoses focused on substance related issues compounded by cluster B personality traits. Mr. Broadfoot was tested for FASD but there was no indication that he met the criteria for this diagnosis.
26Mr. Broadfoot frequently discharged himself against medical advice and stopped taking his prescribed medication.
27It appears from the file information that Mr. Broadfoot received the most consistent treatment for his mental health issues when he was serving a sentence at St. Lawrence Valley Treatment Centre. Dr. Cameron, who worked with Mr. Broadfoot for approximately eight months, diagnosed Mr. Broadfoot with Schizoaffective Disorder, Posttraumatic Stress Disorder, panic Disorder, Attention Deficit Hyperactivity Disorder, Alcohol and Polysubstance Dependence, antisocial personality disorder and possible FASD. Dr. Cameron did not have the benefit of Mr. Broadfoot’s childhood medical records which may explain why he did not rule out FASD.
28Comments were made in Mr. Broadfoot’s file notes that it was difficult to assess the extent of Mr. Broadfoot’s mental health issues and that it was only through the benefit of months of assessment that the staff were able to uncover the full extent to which Mr. Broadfoot heard voices and otherwise exhibited signs of mental illness. In a discharge summary from St. Lawrence Valley, it was noted that Mr. Broadfoot was not able to participate in anger management programs and substance abuse programs because of his mental instability. Mr. Broadfoot did engage in some programming, but his involvement was noted as being limited due to his illness. In the discharge summary it was also noted that Mr. Broadfoot admitted to having anger issues and engaging in violence in the community. He advised the medical staff that he would become angry when sober but alcohol increased his anger.
29While in pre-trial custody for the predicate offence, Mr. Broadfoot was at times thought to be exhibiting signs of suffering from a major mental illness. He was not, however, found to be psychotic. He was thereafter diagnosed solely with a personality disorder and alcohol abuse. In June 2016, Mr. Broadfoot was assessed for fitness to stand trial. Dr. Kromer, who assessed Mr. Broadfoot concluded that Mr. Broadfoot suffered from a major mental illness, likely Schizoaffective Disorder and alcohol and poly substance abuse. He also found that Mr. Broadfoot had antisocial personality features. In June he was found to be unfit to stand trial and sent to Waypoint on a treatment order. In July 2016, Mr. Broadfoot was found fit to stand trial. Mr. Broadfoot was also assessed for whether or not he was criminally responsible for his actions. It was found that he was criminally responsible.
30Dr. Pallandi met with Mr. Broadfoot on one occasion for a four hour interview and reviewed file material in support of his report for the court. It is Dr. Pallandi’s opinion that Mr. Broadfoot suffers from anti-social personality disorder and a severe and persistent polysubstance abuse disorder. He further allowed for the presence of a psychotic or mood disorder in light of Dr. Cameron’s assessment which was comprehensive and one of the more lengthy assessments of Mr. Broadfoot. Dr. Pallandi noted, however, that it was Mr. Broadfoot’s position that he felt better once he stopped taking his medication.
31Dr. Robert McMaster is a psychiatrist who treated Mr. Broadfoot while he was in custody. Dr. McMaster testified that Mr. Broadfoot has been on a number of different medications while in custody for this offence. At first, Mr. Broadfoot was depressed, so he was prescribed anti-depressants. He also receives anti-psychotic medication and at times he receives anti-anxiety pills. There was a time in 2016 when Mr. Broadfoot went on a hunger strike and lost 40 pounds. He had to be taken to the hospital and treated. By November of 2017, Mr. Broadfoot’s communication and mood had improved. He was more engaged and required less mental health intervention, although he remains in a mental health unit. Dr. McMaster could not definitely state the cause of Mr. Broadfoot’s improvement nor could he confirm that this improvement would continue if released in the community.
Criminal History
32Mr. Broadfoot has a criminal record. All the entries on his record are for violence. Mr. Broadfoot was found guilty of two counts of assault with a weapon and one count of assault while he was a young person. He received probation for both these offences. In 2008, Mr. Broadfoot received his first adult conviction. He was convicted of assault and failing to comply with a disposition. He was convicted later that same year on two different occasions for committing the offences of assault with a weapon x2 and assault. For the latter offence Mr. Broadfoot received a conditional sentence. There was no suggestion he ever breached this conditional sentence. All the victims of the above offences except the last one were staff from group homes where Mr. Broadfoot was placed.
33In November 2011, Mr. Broadfoot stabbed Mr. Gervais with a knife. They were intimately involved at the time and had both been drinking heavily when Mr. Broadfoot went to the kitchen and picked up a steak knife. Mr. Broadfoot attacked Mr. Gervais and stabbed him with the knife while Mr. Gervais tried to defend himself. Mr. Broadfoot then started to look for money. Mr. Gervais, in attempt to get Mr. Broadfoot out of his apartment, suggested they go to a bank machine and take money out of Mr. Gervais’s account. On route to the bank machine, Mr. Gervais saw some police officers and ran towards them making his escape. Mr. Broadfoot was convicted of this offence in 2012 and received a sentence of 4 months jail and three years’ probation.
34Six months later, Mr. Broadfoot stabbed three random strangers with scissors all on the same date. Mr. Broadfoot approached the first victim and took out a pair of scissors and stabbed this pedestrian in the back. This victim received a 1 inch stab wound to the back. Moments later, Mr. Broadfoot approached another pedestrian and attempted to stab her with the same scissors in the abdomen but hit her right arm instead. She sustained a 3 inch laceration to her right bicep. Mr. Broadfoot continued to walk with the scissors in hand and stabbed the third victim in the back. Mr. Broadfoot received a 16 month sentence and one year probation for this offence. As noted above, Mr. Broadfoot spent a portion of his time in custody at the St. Lawrence Valley Treatment centre. Upon his release in August of 2014, he was to attend at St. Michael’s hospital and work with a team of mental health practitioners. Housing was secured for Mr. Broadfoot. Mr. Broadfoot stayed connected with his psychiatrist and his support team for a number of months but eventually started drinking again and lost his residence. He then stopped taking his medication and stopped seeing his mental health support workers and stopped following up with his psychiatrist. He then travelled to Montreal for two months before returning to Toronto. In October, 2015, fourteen months after his release from St. Lawrence Valley, Mr. Broadfoot committed the offence that is presently before the court.
Risk Assessment
35Dr. Cameron, who conducted extensive assessments of Mr. Broadfoot while he was serving his last sentence concluded that Mr. Broadfoot posed a high risk to re-offend violently. Dr. Cameron noted Mr. Broadfoot’s non-compliance with medication, his substance abuse problems, his lack of interest in treatment and his lack of support in the community as all contributing to his risk.
36Mr. Broadfoot was examined by Dr. MacDonald in March of 2016, shortly after the commission of the offence before the court. Dr. MacDonald, without having conducted an actual risk assessment, concluded that that Mr. Broadfoot posed a “significant danger” to the public.
37Dr. Pallandi, who conducted a risk assessment pursuant to section 752.1 of the Criminal Code also concluded that Mr. Broadfoot posed a high risk to re-offend violently. It was his position that the most likely re-offence scenario involved an unprovoked attack with potentialy lethal results.
38Dr. Pallandi reached this opinion by considering both actuarial and clinical measures. In relation to the actuarial measures, Mr. Broadfoot scored a 23 out of 40 on the PCL-R. This means that he does not meet the criteria for a psychopath. On the VRAG, Mr. Broadfoot scored a +16. This places Mr. Broadfoot in the high risk of violent reoffending category and corresponds to a risk of 55% and 64 % when comparing him to the development sample.
39In relation to the clinical factors impacting risk, Dr. Pallandi testified that Mr. Broadfoot has many clinical risk factors including his pattern of offending in the past, his lack of education and vocational skills, his antisocial personality disorder, limited insight, lack of support and underdeveloped strategies to deal with risk. In explaining Mr. Broadfoot’s risk, Dr. Pallandi wrote at page 15 of his report,
In terms of understanding his persistent, seemingly unpredictable and purposeless aggressive and violent behaviour culminating in the predicate offence, it appears, in my opinion to be a product of his early environment, lack of appropriate skills and problem solving ability, all compounded by the disinhibiting effect of alcohol and drug use. In contrast I cannot conclude that his behaviours have been mediated principally by the effects of untreated major mental illness such as Schizoaffective Disorder.
Put another way, Mr. Broadfoot was a severely disadvantaged and damaged youth who with the added effect of substance misuse has continued to exhibit disinhibited, under socialized, aggressive and frankly frightening (albeit intermittently) behaviour into his adulthood.
40On the issue of whether Mr. Broadfoot’s risk could be reduced with treatment, Dr. Pallandi testified that in his opinion there is little hope for eventual control in the community. This opinion was based on the fact that Mr. Broadfoot had limited insight into his treatment needs and was not likely to cooperate with the few available measures that might temper his risk. Dr. Pallandi further stated that even if Mr. Broadfoot did cooperate, he could not confidently state that Mr. Broadfoot’s risk could realistically be contained.
41The measures that may serve to reduce Mr. Broadfoot’s risk would include day to day, hands on professional treatment, housing and complete communication between his providers. Mr. Broadfoot would have to abstain from all substances, improve his education and employability. As Mr. Broadfoot has no insight, he would have to be externally monitored to ensure that he is not drinking or using drugs and that he is taking his medication. Even with these steps, Dr. Pallandi was not confident Mr. Broadfoot’s risk could be contained. Mr. Broadfoot was given housing and a treatment team after his last set of offences. Within a relatively short time span he started to drink, lost his housing, disconnected from his treatment team and re-offended violently.
42Dr. Pallandi concluded his opinion with the following comment in his report,
What remains untested is a more substantial custodial term with a multifaceted treatment and programming, followed by a highly structured, supervised and supported return to the community.
Mr. Broadfoot’s Evidence
43Mr. Broadfoot testified at this hearing. He confirmed the information about his childhood and the extent of the trauma he has suffered throughout his life. Mr. Broadfoot’s evidence about why he committed the predicate offence was consistent with what he had told Dr. Pallandi.
44In relation to his behaviour after leaving St. Lawrence Valley, Mr. Broadfoot explained that he was released and started to drink right away. He felt that the medication he was taking was interfering with his sleep and giving him bad dreams so he spoke to his doctor about this and they were going to discuss changing his medication. Mr. Broadfoot then stopped taking his medication, drank more and eventually lost his housing. In November of 2014, Mr. Broadfoot attended at a detox facility but does not appear to have stayed there long. By August of 2015 he was no longer working with his treatment team.
45In September 2015, he was admitted to hospital and received referrals for treatment but he did not follow up with any of these referrals.
46Mr. Broadfoot testified that he continues to struggle with his anger, his addiction and his mental health but that he is taking his medication and feels that he is improving. According to Mr. Broadfoot, he hears voices less now, albeit he still does hear some voices. He knows that he needs to work to control his anger and that he needs to attend programming. Mr. Broadfoot testified that he is prepared to take medication and go to treatment.
47In relation to his anger and his violent conduct, Mr. Broadfoot testified that he is often frustrated and angry by the corruptness of the system. He has tried in the past to continue with his treatment but he becomes overwhelmed and anxious and starts drinking again. Mr. Broadfoot testified that in his opinion it is different this time as he is older and more mature. He further stated that one of the barriers for him and treatment is that many programs are group programs. Mr. Broadfoot testified that he does not like group programs because of his anxiety.
Analysis
General Legal Principles
48The dangerous offender provisions exist to protect the public against offenders who present an ongoing danger to the community because of their risk of repeated violent behaviour. While the essence of the dangerous offender provisions is protection of the public, it cannot be forgotten that the consequence of such a designation is serious in that it involves the potential of loss of liberty for the rest of a person’s life. Given the serious consequence to liberty that flows from a dangerous offender designation, the Crown must prove beyond a reasonable doubt that the offender falls within the criteria established by the Code. (R. v. Newman, 1994 9717 (NL CA), [1994] N.J. No. 54 at paragraph 62). Recently the Supreme Court of Canada re-iterated that the Dangerous Offender provision is a preventative sanction that can be “imposed only upon offenders for whom segregation from society is a rational means to achieve the overriding purpose of public safety.”(R. v. Boutilier, 2017 SCC 64. See also R. v. Steele, 2014 SCC 61 and R. v. Johnson, 2003 SCC 46).
49Section 753, which governs the designation of dangerous offenders, states:
- (1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied
(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing
(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour,
(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or
(iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; or
(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.
50To summarize, pursuant to section 753 of the Criminal Code, the court must first be satisfied that the defendant has committed a serious personal injury offence. Once this pre-requisite is met, the court must then be satisfied beyond a reasonable doubt that Mr. Broadfoot poses a threat to the life, safety or physical or mental well-being of other persons. The Criminal Code further states that the threat to life and/or safety of others will be established by evidence of different types of conduct including:
a) A pattern of repetitive behaviour showing failure to restrain one’s behaviour;
b) A pattern of aggressive behaviour showing indifference to the consequences; or,
c) Brutal conduct.
51In R. v. Boutiler, supra, Cote J. stated that under the old dangerous offender provisions, in order to designate an offender as a dangerous offender, four criteria must be met. Cote J. stated at paragraphs 26-27,
Four criteria were explicit from the language of s.753(1): (1) the offender has been convicted of, and has to be sentenced for, a “serious personal injury offence”; (2) this predicate offence is part of a broader pattern of violence; (3) there is a high likelihood of harmful recidivism; and (4) the violent conduct is intractable (p. 338).” The last three criteria are part of the assessment of the “threat” posed by the offender. The last two of these are future-oriented, and Justice La Forest explained them as follows:
Thirdly, it must be established that the pattern of conduct is very likely to continue and to result in the kind of suffering against which the section seeks to protect, namely, conduct endangering the life, safety or physical well-being of others or, in the case of sexual offences, conduct causing injury, pain or other evil to other persons. Also explicit in one form or another in each subparagraph of s. [688, now 753] is the requirement that the court must be satisfied that the pattern of conduct is substantially or pathologically intractable. [Emphasis added; p. 338.]
52Cote J. further stated that this part of the assessment remains the same under the new provisions.
Gladue Considerations
54In R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688, and in the cases that followed the Supreme Court of Canada has consistently stated that sentencing judges must take into consideration the indigenous background of an offender when determining the appropriate sentence. Courts are required to take judicial notice of the over-representation of indigenous persons in prisons and the systemic and background factors that have led to this over-representation. In R. v. Radcliffe, 2017 ONCA 176, [2017] O.J. No. 1060, leave to appeal to the Supreme Court of Canada refused [2017] S.C.C.A. 294, the Court of Appeal considered the role of the Gladue factors in a dangerous offender hearing. The court stated at paragraphs 54-57
54 Courts are required to take judicial notice of the systemic and background factors affecting Aboriginal people in Canadian society. But, on their own, these matters about which judicial notice must be taken do not necessarily justify a different sentence for Aboriginal offenders. They provide the necessary context for understanding and evaluating the case-specific information which counsel have a duty to present, absent express informed waiver of the right to have it presented: Ipeelee, at para. 60.
55Although systemic and background factors provide the necessary context to enable a judge to determine an appropriate sentence, rather than to excuse or justify the underlying conduct, it is only where the unique circumstances of an offender bear on culpability, or indicate which sentencing objective can and should be actualized, that they will influence the ultimate sentence: Ipeelee, at para. 83.
56 Section 718.2 (e) of the Criminal Code imposes a statutory duty on a sentencing judge to consider the unique circumstances of Aboriginal offenders. Failure to apply Gladue in any case of an Aboriginal offender offends this statutory obligation and constitutes an error justifying appellate intervention: Ipeelee, at para. 87.
57 As a matter of general principle, characteristics that make an offender “less blameworthy” have little impact on a dangerous offender application: R. v. B. (D.V.), 2010 ONCA 291, 254 C.C.C (3d) 221, leave to appeal refused, [2011] S.C.C.A. No. 207, at para. 80. Where Gladue factors serve to establish the existence and availability of alternative Aboriginal-focused means aimed at addressing the environmental, psychological or other circumstances which aggravate the risk of re-offence posed by the Aboriginal offender, a sentencing judge must make reference to them: R. v. Jennings, 2016 BCCA 127, 384 B.C.A.C. 152, at paras. 35, 38; R. v. Standingwater, 2013 SKCA 78, 417 Sask.R. 158, at para 51.
55In the case at bar, there are significant Gladue factors at play that go to the heart of Mr. Broadfoot’s criminal and violent conduct. While these factors may have little impact on his present risk to re-offend, in my view they are still highly relevant to his level of moral blameworthiness and may have significance on the issue of his treatment potential given his reduced moral blameworthiness.
56The first relevant factor to consider is that Mr. Broadfoot’s maternal grandmother was in residential school. It is now well recognized that the children and grandchildren of those that went to residential school live with the legacy of broken families, broken culture and broken spirit from these schools. Ms. Pettigrew in the Gladue report she prepared for Mr. Broadfoot stated as follows at page 8 about the impact of residential schools,
Residential schools have caused long-term intergenerational harm to the families and communities of Residential School Survivors. According to the findings compiled in Reclaiming Connections: Understanding Residential School Trauma Among Aboriginal People, a resource manual published by the Aboriginal Healing Foundation, the intergenerational Residential School effects are three fold: the trauma experienced by many former students of Indian Residential Schools affects not only the individual, but their family as well as their descendants, and their communities. The effects include, but are not limited to:
i) Communication barriers, especially an inability to express affection;
ii) Families where no nurturing affection was present for generations;
iii) Discomfort expressing love for children in physical ways, especially hugs;
iv) Lack of communication within the family;
v) Children taken into custody by the Children’s Aid Society;
vi) Addictive and self-destructive behaviours
Communities would fear the arrival of Indian Agents who were used a as a mechanism to enforce the compulsory attendance policy of residential schools beginning in the 1920s. As a result of the residential school system, many Aboriginal people are wary of the state officials.
57The evidence presented to this court establishes that the impact of the residential schools on Mr. Broadfoot and his family is significant. This was eloquently explained by Ms. Pettigrew in the Gladue report. Mr. Broadfoot’s mother married an abusive man and suffered from ongoing mental health and addiction issues. She was unable to properly parent her children. Mrs. Broadfoot’s inability to parent Mr. Broadfoot can be directly linked to having being raised by a residential school survivor.
58Mr. Broadfoot’s involvement with WCFS can also be linked to his grandmother’s forced attendance at residential school. Ms. Pettigrew noted in her report that a well-known effect of residential schools is that subsequent children are more likely to be taken into custody by children’s aid. Mr. Broadfoot was removed from his home for the first time at the age of six. He was in approximately 40 different placements before he came of age. In relation to this aspect of Mr. Broadfoot’s childhood, Ms. Pettigrew wrote at page 16 of her report,
…Aboriginal children and youth are more likely to live in “three to thirteen different foster homes before the age of 19”. Moreover, the rate of Aboriginal breakdowns – the rate at which a child leaves their home before the age of majority – effects 95 per cent of all Aboriginal children.
On the issue of the impact of being placed in foster care, Ms. Pettigrew wrote at page 17,
Aboriginal children in foster or adoptive homes are deprived of their culture much like Residential schools as foster families do not speak Aboriginal languages; are mostly Christian; and do not teach Aboriginal spirituality, ceremonies nor encourage youth to do so. “Aboriginal youth are over-represented in the child welfare system and tend to become over-represented in the prison system, moving from one residence to another.
59Ms. Pettigrew further noted in her report that the long term impact of foster placement and cross cultural adoption has led to damaged self-esteem, identity confusion and self-sabotage. Those coming from such placements are often ill equipped to form positive relationships which leads to impulse pleasing and a self-destructive lifestyle. Mr. Broadfoot easily fits this description.
60What is overwhelmingly obvious from the Gladue report is that the long term impact of colonialism, dislocation and the legacy of the residential schools has played a significant role in Mr. Broadfoot’s life and has directly impacted his criminal behaviour. Mr. Broadfoot testified about the anger he feels about his life, anger that was present at the time of the predicate offence. He also testified that he views the system as being corrupt which further spurs his anger. Given his childhood, his anger is easy to understand.
61What in my view, makes the Gladue factors even more compelling in the case at bar, is that Dr. Pallandi directly attributes Mr. Broadfoot’s present risk and ongoing violence in some measure to his chaotic and neglected childhood.
62In light of all this, in my view significant weight should be attached to Mr. Broadfoot’s background and the context of his offending behaviour in assessing the appropriate sentence and the potential of meeting Mr. Broadfoot’s treatment needs in the community.
The Dangerous Offender Criteria
(1) Serious Personal Injury Offence
63This first criteria in the case at bar is easily met as Mr. Broadfoot has admitted that he committed the offence of aggravated assault by stabbing a stranger multiple times. Counsel for Mr. Broadfoot argued that there is no evidence that the predicate offence is a personal injury offence because the medical records and victim impact statements were not filed with the court. Respectfully, I disagree. Mr. Broadfoot admitted the essential elements of the offence of aggravated assault, which by its very nature is a serious personal injury offence.
(II) Pattern of Violence of which the predicate Offence is a part
64This criteria requires the court to consider if the predicate offence is part of a pattern of violent behaviour. While section 753(1) contemplates two different types of patterns: a pattern of repetitive behaviour showing a failure to restrain his behaviour and a pattern of persistent aggressive behaviour showing substantial indifference respecting the reasonably foreseeable consequences to other persons, both patterns relate to a pattern of violence that resulted in serious injury to the victim.
(i) Pattern of repetitive behaviour showing a failure to restrain his behaviour – section 753(1) (a)(i) of the Criminal Code
65The essence of the pattern defined in section 753(1)(a)(i) is that there are sufficient similarities between each example of that pattern such that it helps serve as a predictor for future offending behaviour. (see R. v. Hogg, 2011 ONCA 840, [2011] O.J. No. 5963 (C.A.), at paragraph 40). The offences, however, need not be the same in every detail and they may even be different in kind as long as there are sufficient other similarities between the different offences. The fewer the incidents, however, the greater the number of similarities that are required. (R. v. Akbar, 2014 ONSC 1946 (S.C.J.))
66In R. v. Dorsey, [2009] O.J. No. 5368 (S.C.J.), pattern was described as follows at paragraph 98,
I agree that in order to satisfy paragraphs (i) and (ii), the Crown must establish, among other things, that the predicate offences form part of a pattern of repetitive or persistent behaviour. A pattern of behaviour is something more than a mere history of criminal activity. To constitute a pattern, 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 connection, and where the number of prior incidents is low, similarity may be crucial; R. v. Smyth, [2007] O.J. No. 1546. At paragraph 63 (Sup. Ct.). However, “similarity… can be found not only in the types of offences but also in the degree of violence or aggression threatened or inflicted on the victims… [and] similarity in terms of kinds of offences is not crucial when the incidents of serious violence and aggression are more numerous”: R. v. Neve (1999), 1999 ABCA 206, 137 C.C.C. (3d) 97, at paragraph 113 (Alta.C.A.).
67In the case at bar, the Crown relies on the assault with a weapon conviction from 2011, the three assault with a weapon offences from 2013 and the predicate offence to establish the requisite pattern. All three sets of offences involved Mr. Broadfoot stabbing his victim and causing significant injury to his victims. There are some differences, in that the first victim was an intimate partner instead of a stranger and the weapon in the first and third set of offences was a knife whereas the weapon in the middle set of offences was scissors. The final difference of relevance is that Mr. Broadfoot had been consuming significant amounts of alcohol at the time of the first and third offences but was not overtly impaired during the middle set of offences. Despite these differences, I am satisfied that there are sufficient similarities to make out the requisite pattern in that Mr. Broadfoot stabbed his victims on three separate occasions, for no apparent reason, causing significant physical injury to all five victims.
(ii) Pattern of persistent aggressive behaviour - section 753(1) (a)(ii) of the Criminal Code
68Pursuant to this provision, the court is required to consider the presence of a persistent pattern of aggression that shows a substantial degree of indifference by the offender to the reasonably foreseeable consequences.
69A persistent pattern of aggression does not require an element of physical force. Instead, the term aggression includes a wide variety of conduct ranging from pushy to actual violence. Moreover, this section does not require the same degree of similarity between the different offences. The focus is on aggressive behaviour and indifference to others as opposed to similarity in behaviour. Having said that, the pattern of aggressive conduct must be more than just repetitive, it must be persistent (see R. v. Neve, supra). .
70I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Broadfoot has engaged in a persistent pattern of aggressive conduct. Mr. Broadfoot has numerous convictions on his record for violence. In addition to the findings of guilt as a youth and convictions as an adult, Mr. Broadfoot’s WCFS file references numerous other aggressive acts committed by Mr. Broadfoot. Mr. Broadfoot’s aggression to others is a constant theme in the material filed with the court. Counsel for Mr. Broadfoot advised the court that all the aggressive incidents referenced in the material were admitted as being true. In light of continuous theme of aggression by Mr. Broadfoot, I am satisfied this prong has been made out.
(III) Is there is a high likelihood of harmful recidivism and the violent conduct is intractable
71While these two factors are identified as separate criteria, given the issues in the case at bar, it is difficult to separate these two criteria and therefore are best addressed together.
72All the evidence presented to this court suggests that absent significant intervention, Mr. Broadfoot poses a high likelihood of harmful recidivism. Dr. Cameron, Dr. Macdonald and Dr. Pallandi all concluded that Mr. Broadfoot was at a high risk to re-offend and that given his offence pattern, the type of re-offending would be potentially lethal violence.
73Dr. Pallandi was the only one of these three psychiatrists that actually completed a full risk assessment on Mr. Broadfoot. Dr. MacDonald saw Mr. Broadfoot briefly for a fitness issue and Dr. Cameron was Mr. Broadfoot’s treating psychiatrist while he was in prison in 2013. Dr. Pallandi’s opinion about Mr. Broadfoot’s risk was based on both actual and clinical assessment tools, however, Dr. Pallandi, in his evidence, largely focused on Mr. Broadfoot’s pattern of offending behaviour, the fact that Mr. Broadfoot suffers from anti-social personality disorder, anger management issues, significant alcohol abuse problem and has limited insight or interest in treatment. In light of these factors, Dr. Pallandi concluded that Mr. Broadfoot is likely to re-offend in a violent manner.
74In light of this un-contradicted evidence, I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Broadfoot, at the present time, presents a high likelihood of harmful recidivism. The issue remains whether or not his violent behaviour is intractable.
75In R. v. Boutilier, the Supreme Court of Canada held that the Crown must prove intractability at both the designation stage and the sentencing stage. While the Supreme Court of Canada noted that the concept of intractability may be different at the designation than it is at the sentencing stage, it is nonetheless still a key aspect at the designation stage. Cote J. stated at para 27
The language of s. 753(1), which led Justice La Forest to develop the four criteria outlined above, has never been amended since its enactment in 1977. Before designating a dangerous offender, a sentencing judge must still be satisfied on the evidence that the offender poses a high likelihood of harmful recidivism and that his or her conduct is intractable. I understand “intractable” conduct as meaning behaviour that the offender is unable to surmount. Through these two criteria, Parliament requires sentencing judges to conduct a prospective assessment of dangerousness.
76Cote J. defined intractable conduct as meaning “behaviour that the offender is unable to surmount”. Wilson J. in R. v. V.M. [2003] O.J. No. 436 (S.C.J.) provided a very helpful summary of the law around intractability. She wrote,
106 The designation as a dangerous offender requires that the offender's condition be "substantially or pathologically intractable." See Lyons, supra at 338. In R. v. Johnson (2001), 2001 BCCA 456, 158 C.C.C. (3d) 155 (B.C.C.A.), the Court affirmed that this is a continued requirement under the 1997 amendments. The Court states, at para. 84, that "a pattern of conduct will be intractable if it is deep-seated and difficult to treat." Furthermore, the Court emphasizes that the concept of "eventual control in the community" is the counterpart to "substantially or pathologically intractable," saying, at para. 86, if there is "a reasonable possibility that a cure or control would be effected within [a determinate sentence], it cannot be said that the offender's pattern of conduct is substantially or pathologically intractable."
107 As noted in R. v. B.R.B., 2002 BCCA 420, [2002] B.C.J. No. 2363 (B.C.C.A.) at para. 15, this means that the Crown must prove beyond a reasonable doubt that there is no reasonable possibility of eventual control of the offender in the community in order to prove that the offender has a condition that is "substantially or pathologically intractable," and, hence, is a dangerous offender.
108 In R. v. J.F.H., [2002] O.J. No. 362 (Ont. Sup. Ct.) at para. 197, Hill J. noted that "reasonable possibility of eventual control" requires something more than "a speculative hope without the robust foundation necessary to safely predict community safety." On the other hand, as Hill J. notes in R. v. Payne (2001), 2001 28422 (ON SC), 41 C.R. (5th) 156 (Ont. Sup. Ct.) at para. 114, "[p]ossibility does not of course require anything approaching certainty."
109 Garton J. considered the meaning of the phrase "reasonable possibility of eventual control" in R. v. Hosten (unreported), Garton J., February 26, 2002 (Ont. Sup. Ct.). She cites R. v. J.G.T., 2000 ABQB 551, [2000] A.J. No. 938 (Alta. Q.B.), at 50, saying "reasonable possibility of eventual control does not require a cure – only that the risk be controlled." Garton J. notes, at 50, that in another decision, R. v. D.R.A., [201] A.J. No. 1649 (Alta. Q.B.), this threshold was determined by answering the following question: "Is there a fairly good chance that the offender's behaviour will be controlled within an appropriate time?"
110 In Payne, supra at para. 110, Hill J. suggests that the Court should consider the psychological and medical evidence relating to control and then ask whether, "on a case specific basis, the accused is himself treatable and amenable to control." Hill J. then analyzes the negative and positive factors relating to the treatability of the specific offender in Payne, supra.
77The Supreme Court of Canada in R. v. Boutilier, did not expressly state the difference between the intractability assessment at the designation stage as opposed to the intractability assessment at the sentencing stage of the proceedings. A review of the final analysis in Boutilier leads me to the following conclusion: At the designation stage, intractability relates to whether or not the conduct can be treated. At the sentencing stage, the court has found that the conduct cannot be treated so the question becomes can the conduct be managed. For example, in Boutilier, in looking at the issue of intractability at the designation stage, the court considered the depth of Mr. Boutilier’s addiction (as it was his addiction that made him dangerous). The trial judge concluded that the treatment prospects did not rise beyond an expression of hope. In looking at the issue of intractability at the sentencing stage, the court commented on Mr. Boutilier’s consistent failure to comply with conditions of his release which therefore led the court to conclude that supervision in the community would not adequately protect the public.
78In the case at bar, Crown counsel argued that it has been proven beyond a reasonable doubt that Mr. Broadfoot’s aggressive behaviour is intractable, in that it is not treatable. In support of this position the Crown relied on Dr. Pallandi’s opinion evidence and Mr. Broadfoot’s past record for violence. [79] Dr. Pallandi testified that Mr. Broadfoot’s prognosis was poor given his numerous risk factors including his addiction, his lack of skills and coping mechanisms, his continued acts of violence in the community and his lack of commitment to his own treatment. He further noted that there were few protective factors that would serve to ameliorate his risk. Dr. Pallandi’s evidence was un-contradicted in that no other contrary expert opinion was put before the court. I am mindful that as a sentencing judge with no training or experience in risk assessment, Dr. Pallandi’s opinion should be afforded great deference. Moreover, Dr. Pallandi is well known by the judges at Old City Hall and he is a very respected forensic psychiatrist. Reluctantly, however, despite my high regard for Dr. Pallandi, I am unable to fully accept Dr. Pallandi’s opinion about Mr. Broadfoot’s treatment prospects. I reach this conclusion for a number of reasons.
80Firstly, Dr. Cameron and Dr. Pallandi were not ad idem on Mr. Broadfoot’s mental health diagnosis which in turn can be linked to treatment potential. I found Dr. Cameron’s psychiatric diagnosis to be far more compelling than the diagnosis put forward by Dr. Pallandi. Dr. Pallandi identified two key mental health issues, polysubstance abuse and anti-social personality disorder. Dr. Cameron, in his report from St. Lawrence Valley in addition to these diagnoses identified a host of other mental health issues at play with Mr. Broadfoot including schizoaffective disorder and severe Post Traumatic Stress Disorder. As Dr. Pallandi noted in his report, Dr. Cameron had more time to observe and assess Mr. Broadfoot. This issue of whether or not Mr. Broadfoot has a mental disorder that involves some kind of psychosis has been a source of contradiction in the medical records. Dr. Kromer, in his report, thoroughly reviewed all the different diagnoses that have been made about Mr. Broadfoot, of which there are many. Dr. Cameron, however, appears to be have been the only psychiatrist to really observe Mr. Broadfoot over a longer period of time. This is significant because it was noted in Mr. Broadfoot’s files from St. Lawrence Valley that it was only over time that Mr. Broadfoot’s mental state and psychosis became more apparent. I note that Dr. Pallandi, while had had all the file information, only met Mr. Broadfoot on one occasion.
81On the issue of the presence or absence of a psychosis, Dr. Pallandi testified that Mr. Broadfoot advised that he felt better once he stopped taking the medication that had been prescribed by Dr. Cameron. This had some impact on Dr. Pallandi’s opinion about the presence or absence of a psychosis. While this is Mr. Broadfoot’s self-report, it in some respects is contrary to Mr. Broadfoot’s observable behaviour. I note that it was only after Mr. Broadfoot stopped taking his medication that he re-offended. Moreover, while staying at St. Lawrence Valley, it was noted that Mr. Broadfoot’s behaviour started to improve once he was taking his medication. I further note that according to Dr. McMaster, Mr. Broadfoot has been taking his anti-psychotic medication while in jail and his overall manner and behaviour has improved.
82Secondly, Dr. Pallandi did not appear to have the full picture of Mr. Broadfoot’s background when he reached his conclusion about Mr. Broadfoot’s risk. Dr. Pallandi wrote in his report that Mr. Broadfoot was not sexually abused as a child. This is inaccurate. As noted above, Mr. Broadfoot was sexually abused on more than one occasion when he was a young person. When questioned about this error, Dr. Pallandi testified that the presence or absence of sexual abuse in Mr. Broadfoot’s past would not affect his overall assessment of risk since Mr. Broadfoot’s entire childhood was traumatic. I note, however, that Dr. Pallandi did not diagnose Mr. Broadfoot with post-traumatic stress disorder while Dr. Cameron, who appeared to be aware of the sexual abuse did. From a common sense perspective, it is difficult to understand how Mr. Broadfoot’s future prospects can properly be assessed without a full understanding of the trauma Mr. Broadfoot suffered as a young person.
83The third factor that leads me to reject Dr. Pallandi’s opinion about Mr. Broadfoot’s treatment prospects relates to Dr. Pallandi’s opinion about Mr. Broadfoot’s interest and willingness to engage with treatment. Dr. Pallandi testified that one of the reasons for his opinion that Mr. Broadfoot did not have a reasonable prospect of responding to treatment was based on his opinion that Mr. Broadfoot had minimal insight and seemed uninterested in treatment. There is a host of other evidence that fully supports Dr. Pallandi’s opinion on this point in fact Dr. Cameron came to the same conclusion. Mr. Broadfoot’s historical lack of insight and interest in treatment is readily apparent from the fact that he consistently denies that he suffers from a major mental illness and is inconsistent on whether he suffers from auditory hallucinations. Moreover, Mr. Broadfoot has historically been non-compliant with his medication and has been disinterested in treatment, so much so that at the beginning of these proceedings he was prepared to resign himself to spending the rest of life in prison.
84While I have no doubt that in January of 2017 Mr. Broadfoot had nominal insight into his issues and was not interested in treatment, there is meaningful evidence before the court that Mr. Broadfoot’s overall attitude and demeanor has changed since that time. These changes include the following:
a) Mr. Broadfoot’s overall willingness to participate in this hearing has changed significantly since he first entered his pleas of guilty before the court. A year ago, Mr. Broadfoot was often angry in court and non-responsive. Over the past few months Mr. Broadfoot has been very engaged in his hearing including choosing to testify;
b) Mr. Broadfoot’s overall hygiene has improved and he has gained weight. Dr. Pallandi even commented on Mr. Broadfoot’s change in appearance;
c) Mr. Broadfoot’s overall mental health has improved which was confirmed by Dr. McMaster; and,
d) Mr. Broadfoot has been taking his medication, including his antipsychotic medication consistently for some time.
85These improvements are consistent with Mr. Broadfoot’s evidence that he is maturing and that he is willing to be more engaged with his treatment. I found Mr. Broadfoot to be a very honest witness. He did not attempt to mislead the court and appeared to answer all the questions posed to him honestly. I accept Mr. Broadfoot’s evidence that he realizes that he has an anger problem and a significant substance abuse problem and that he is willing to follow through with his treatment. I appreciate that his insight is not complete and that Mr. Broadfoot has a long way to go, I nonetheless find that he is taking meaningful steps towards his own rehabilitation and appears to be invested in addressing his mental health issues.
86In addition to this evidence that Mr. Broadfoot has changed his mind set over the past year, there is some evidence, in my view, which confirms that Mr. Broadfoot has some insight into his behaviour. Moments before committing this offence, Mr. Broadfoot attended at CAMH looking for help. The centre refused to admit him and instead offered him referrals and recommendations for substance abuse treatment. Mr. Broadfoot did not want these referrals and he left. The doctor tending to Mr. Broadfoot on that night wrote that Mr. Broadfoot was a not a risk to himself or others. Dr. Pallandi took this as evidence that Mr. Broadfoot is unpredictable as he did not appear to be a risk to others when he attended at CAMH. As the doctor who saw Mr. Broadfoot did not testify at this hearing, it is difficult to place any weight on his/her assessment from that night. One of two conclusions arise, either Mr. Broadfoot is unpredictable, or the doctor assessing him mis-read the signs. What is clear, however, is that Mr. Broadfoot did seek out help that night which, in my view, provides some evidence of insight.
87The second factor the Crown relies upon to support a finding of intractability is that Mr. Broadfoot has had the benefit of past programming and it has failed to alter his behaviour. I agree that it is open for the court to infer intractability from unsuccessful treatment attempts. I disagree, however, that Mr. Broadfoot has had sufficient access to treatment to make this inference.
88Mr. Broadfoot has been placed on probation where counselling was ordered and yet he still continued to commit offences. Mr. Broadfoot also had the benefit of eight months at St. Lawrence Valley Treatment Centre coupled with a comprehensive release plan that involved ongoing treatment in the community. Nonetheless fourteen months after his release, Mr. Broadfoot had disconnected from his treatment team, stopped taking his medication, was consuming alcohol and then re-offended causing significant harm to his victim. While Mr. Broadfoot did have the benefit of eight months or so at St. Lawrence Valley Treatment Centre, I note that the file information indicates that Mr. Broadfoot was unable to attend and participate in the anger management and substance abuse programs because he was too mentally ill to benefit from these programs. Moreover, while he was placed in other programs, his participation was minimal because he was ill. So while Mr. Broadfoot was receiving treatment for his psychosis at St. Lawrence Valley, little was done to address the underlying anger and substance abuse issues. Mr. Broadfoot’s unsuccessful response to this first real attempt at a broad treatment plan does not lead me to conclude that other more expansive treatment options will not be successful. I note that Dr. Pallandi identified in his report that it remains untested whether or not a longer period of custody with multifaceted treatment and programming followed by a highly structured return to the community would be successful. I am mindful that the absence of prior treatment alone is not a sufficient basis to conclude that Mr. Broadfoot is treatable. It is, however, relevant to whether the Crown has proven beyond a reasonable doubt that Mr. Broadfoot’s violent conduct is intractable.
89Mr. Broadfoot’s potential for treatment can easily be contrasted to that of Mr. Boutilier’s treatment prospects. Mr. Boutillier continued to use drugs while incarcerated and continued to use drugs despite having overdosed many times. Mr. Broadfoot’s issues, first of all do not solely relate to his addiction, he appears to have a major mental illness that has to some extent recently been responsive to medication. Secondly, despite having a severe addiction, Mr. Broadfoot has not been using alcohol or drugs while incarcerated. Mr. Broadfoot appears to have gained some insight recently and shown an ability to engage with his treatment team.
90Crown counsel argued, that this court cannot find that Mr. Broadfoot’s risk can be managed in the community because no concrete plan has been forward. Respectfully, I disagree, there is no positive burden on the defendant to put forward a concrete release plan at this stage. The burden lies with the Crown to prove intractability.
91When I consider all the evidence presented at this dangerous offender hearing, I am satisfied that Mr. Broadfoot’s treatment prospects are more than just an expression of hope. In my view the Crown has not proven intractability beyond a reasonable doubt.
92In the case at bar, I have been able to address the issue of intractability without considering the Gladue factors. While I have not relied on the Gladue factors in this case to address the issue of intractability, given the significant Gladue factors in the case at bar, it is worth mentioning. The principles enunciated in Gladue are grounded in the legacy of colonialism and the reality that indigenous people are over represented in the justice system. The history of residential schools, dislocation and disconnection from their culture has direct links with the over-representation of Indigenous persons in the jails. To the extent that section 718.2(e) is a remedial section meant to address the over-representation of indigenous people in Canadian jails, it is incumbent on sentencing judges to ensure that all other measures be considered before imposing an indeterminate sentence. In a case like this one, where Mr. Broadfoot has not yet had the benefit of the intensive treatment programs in the penitentiary followed by a gradual and supervised release into the community, sentencing judges should think twice before imposing indeterminate sentences. While protection of the public should be paramount, real steps to assist with meaningful rehabilitation must occur before resorting to an indeterminate sentence where there are Gladue factors at play.
Long Term Offender.
93Pursuant to section 753.1 of the Criminal Code, an offender can be designated a long term offender where:
i) It would appropriate to impose a sentence of two years imprisonment or more for the offence;
ii) There is a substantial risk the offender will re-offend
iii) There is a reasonable possibility of eventual control in the community.
94Unlike the dangerous offender provisions, the court need not find that the conduct is intractable before making a long term offender order. In the case at bar, it is clear that Mr. Broadfoot, absent meaningful intervention poses a high risk of re-offending in a manner that involves a high level of violence and harm to others. I am therefore satisfied that Mr. Broadfoot meets the legal definition for a long term offender. I therefore find him to be a long term offender.
Appropriate Sentence
95Crown counsel argued that if a determinate sentence is to be imposed, it should be a sentence of 20 years with a long term supervision order of 10 years. Counsel for Mr. Broadfoot argued that a sentence of 5 years should be imposed.
96In my view, a sentence of 20 years is disproportionate the circumstances of Mr. Broadfoot and the gravity of the offence. The case law is ripe with examples were sentences less than 10 years are imposed for similar offences. Ranges of sentences for unprovoked attacks on strangers with serious consequences generally fall into the range of five to ten years (see R. v. Clymer, [2017] O.J. No. 3332 (OCJ) at paragraph 72). When I take into account Mr. Broadfoot’s criminal record, his background, in particular the Gladue factors highlighted above, and the need to impose a sentence that is long enough to ensure access to meaningful treatment, I am satisfied that a sentence of seven and a half years followed by a Long Term Supervision Order for 10 years should be imposed. The only recommendation I could make at this stage in relation to the long term supervision order is that the order include the treatment and supervision recommendations made by Dr. Pallandi in his report to the court and in his evidence.
[97] Mr. Broadfoot has been in custody for 2 ½ years. Pursuant to R. v. Summers, Mr. Broadfoot should be credited at a rate of 1.5 to one for his pre-trial custody for a total of 3 years and 9 months. This leaves three years and nine months remaining on his sentence.
98There will also be a DNA order and a s.109 order for life.
Released on March 27, 2018
Justice Mara Greene
