ONTARIO COURT OF JUSTICE DATE: August 3, 2021
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
NYRON HEMMINGS
Before: Justice S. M. Chapman
Heard on: March 3 and 4, 2021
Reasons for Judgment released on: July 30, 2021
Amended Reasons for Judgment released on: August 3, 2021
Counsel: E. Rokach, counsel for the Crown A. Mamo, counsel for the accused Nyron Hemmings
1. The Application
1Following a five day trial, I found Mr. Hemmings guilty of a number of offences including aggravated assault contrary to section 268 of the Criminal Code of Canada (the Code), assault with a weapon contrary to section 267(a) of the Code and possession of a weapon for a dangerous purpose contrary to section 88.1 of the Code. Thereafter the Crown gave notice of its intention to have Mr. Hemmings declared a dangerous offender. An assessment under s. 752.1 of the Code was ordered on consent. After its receipt, the Deputy Attorney General provided consent to the dangerous offender application.
2For a defendant to be designated a dangerous offender, the Crown must prove beyond a reasonable doubt that the offender meets the standard set out in the Criminal Code. In R. v. Boutilier the Supreme Court of Canada emphasized that the dangerous offender provisions can be “imposed only upon offenders for whom segregation from society is a rational means to achieve the overriding purpose of public safety.”
3It is agreed between the parties that Mr. Hemmings has been convicted of a serious personal injury offence as defined in s. 752. It is also agreed that the Crown has established beyond a reasonable doubt that Mr. Hemmings “constitutes a threat to the life, safety or physical or mental well-being of other persons” as determined based on paragraphs 753 (1)(a)(i) and (ii). Therefore, the sole issue is whether Mr. Hemmings behavior is “intractable” as that concept is defined by the jurisprudence.
4The Crown seeks to have Mr. Hemmings declared a dangerous offender pursuant to s. 753 (1) (a) of the Code. Ms. Rokach submits that the facts and history demonstrate that there is no real possibility that the serious and high-risk Mr. Hemmings poses can be managed in the community and asks that an indeterminate sentence be imposed. Ms. Mamo submits that the Crown has not met its burden on the application and that Mr. Hemmings should instead be declared a long term offender and a fixed sentence of ten years (minus time served) be imposed in addition to a ten year community service order.
5For the following reasons, I find that Mr. Hemmings is a dangerous offender. However, rather than an indeterminate sentence, he will be sentenced to 14 years (minus credit for pre-trial custody) to be followed by a 10 year long term supervision order.
2. The Evidence
Overview
6The Crown filed the report prepared by Dr. Treena Wilkie, Forensic Psychiatrist and the Psychological Report of Dr. Stephanie Penney, both prepared as part of the assessment ordered under 752.1 of the Criminal Code, as well as a great deal of documentary evidence including:
i) Mr. Hemmings Criminal Record; ii) Correctional Service Canada Records; iii) Ministry of Community Safety and Correctional Services Records; iv) Probation and Parole Documents; v) Prior Psychological and Psychiatric Reports; vi) Institutional Misconduct Records; vii) Victim Impact Statements of Aggery Blaire and Kirbena Maxwell; viii) Information including arrest records, Synopses and or Transcripts of Proceedings pertaining to past offences; ix) Information concerning the predicate offence and subsequent arrest.
7Two witnesses testified at the hearing, both called by the Crown: Dr. Wilkie and Ms. Do Rego from Correctional Service Canada. Their evidence will be outlined in some detail below. Both parties rely upon it.
The Predicate Offences [1]
8The predicate offences are particularly violent and brutal.
9In late August, 2018, Mr. Hemmings perpetrated a vicious attack on Aggery Blair following an argument at a pub where Mr. Blair alleged that Mr. Hemmings had stolen money from his girlfriend’s purse. While Mr. Blair was angry with Mr. Hemmings he did not threaten him in any way. After a verbal exchange with Mr. Blair, Mr. Hemmings can be seen on surveillance video lighting a cigarette and calmly leaving the bar. He retrieved a metal pipe from under the seat of his car in the parking lot and then calmly walked back into the bar with the pipe partially concealed behind his back. Mr. Blair runs away from Mr. Hemmings, towards the back of the patio, where he picked up a chair and held it in front of himself in a self defence stance. The chair was quickly knocked out his hands and Mr. Hemmings took Mr. Blair to the ground where he repeatedly and savagely beat him with the pipe.
10Mr. Blair testified that during the attack Mr. Hemmings kept saying “where is my money?”. Following the attack Mr. Hemmings can be seen on video calmly leaving the bar still smoking his cigarette. He placed the weapon again inside the car and drove off. In contrast, Mr. Blair can be seen staggering out of the bar leaving a trail of blood behind him. He collapsed outside the front of the bar and a crowd gathered. Mr. Blair suffered catastrophic injuries during this attack. Photographs of him in the hospital bed, and his medical records, make this very clear. He had surgeries and remained in hospital for some time. The video of the attack is shocking.
11Ms. Kirbena Maxwell testified that on August 31 she learned that her fiancé, Mr. Blair, had been badly beaten by Mr. Hemmings and was in the hospital. She thought that he was going to die. She got up on the morning of September 1 with a view to returning to the hospital to visit him. However, most unexpectedly Mr. Hemmings showed up at her apartment door. When she answered the door he pushed her out of the way and entered. Surveillance video shows Mr. Hemmings skulking around her unit door and attempting to conceal himself, for approximately 45 minutes prior to entering.
12Ms. Maxwell described some of the conversation that she and Mr. Hemmings had over the course of the next two hours. He made disparaging comments about her and Mr. Blair and demanded more money for marijuana that he had provided to the couple at an earlier time. Mr. Hemmings became frustrated with her, placed both of his hands around her neck and choked her hard for some time. As she put it he “floored her” and “choked the daylights out” of her while calling her a “dumb bitch” and similar slurs. During the attack she was thinking of her children, talking to her God, and fearing for her life.
13Ms. Maxwell testified that she was terrified and tried to appease Mr. Hemmings. She gave him her green TD bank card so that he would at least think that he could withdraw money from her bank account. After Mr. Hemmings left she got up and locked the apartment door. She then called a cab to take her to the hospital to see Mr. Blair. She asked the cab driver to meet her behind the building rather than out front so as to avoid running into Mr. Hemmings. The surveillance video from the hallway shows Ms. Maxwell immediately following the attack, very unsteady on her feet, swaying back and forth, and even brushing up against the hallway wall as she leaves the apartment. She appears disheveled.
14As she got in the cab Mr. Hemmings saw her and was angry that he could not get her bank card to work at the ATM. He got in the cab with her and they went to the TD bank together. When Mr. Hemmings got out of the cab, Ms. Maxwell told the cab to leave him there and drive away. The cab took her to the hospital where Mr. Blair was being cared for. On her way she called 911 to report the attack she experienced. Though we cannot hear what Ms. Maxwell is saying to the 911 operator, she can be seen on the in cab video crying and very distraught, particularly as she placed her hands around her neck in a choking motion, apparently re-enacting the traumatic incident.
15It is clear from her testimony that she has suffered greatly both physically and psychologically as a result of the attack. She was interviewed by the police and photographs of her injuries were taken. There were obvious scratches and bruises on both sides of her neck. Ms. Maxwell suffers from MS and is visibly frail. Mr. Hemmings on the other hand is approximately 5’ 8” and 185 pounds and has a very muscular build.
16Mr. Hemmings was serving a conditional sentence at the time of these events.
Victim Impact
17Desmond Lee, MSW, RSW wrote a statement on behalf of Ms. Kirbena Maxwell. He has been seeing her for counselling since February of 2020. Ms. Maxwell has experienced life changing events due to Mr. Hemmings mistreatment of her. She terminated her tenancy at her residence out of security concerns directly related to the attack. She ended up in the home of an abusive person and had to flee there only to end up living in a shelter. She no longer has access to her children, ages 16 and 12 because they now stay with their father in the USA. This is because, given her housing instability, the CAS deemed Ms. Maxwell’s circumstances unsafe for her children. Along with the injuries inflicted during the assault, Ms. Maxwell’s MS has flared up following the incident and it is difficult to deal with the symptoms when her housing is insecure. Ms. Maxwell experiences severe anxiety and depression related to the psychological trauma she experienced at the hands of Mr. Hemmings. She feels that she has lost everything.
18Mr. Blair described the devastating impact of the offences. His life has been turned upside down. He is in constant fear to leave his home. He suffers constant headaches, his left arm looks deformed and is constantly painful, he can hardly walk most days. He was always a hard-working man but now cannot work at all due to the injuries suffered. He is on ODSP and with the support of his doctor has applied for a scooter to get around. He can’t spend more than 20 minutes on his feet and needs to attend physiotherapy constantly. He needs to take daily medication to deal with the pain. These events have destroyed his relationship with his spouse and family and he has become isolated and alone.
Mr. Hemming’s Personal Circumstances
19This court had a significant amount of information about Mr. Hemmings. This history came from numerous institutional and psychiatric records and much of it is summarized in the expert reports.
20At the time of his assessment by Dr. Wilkie, Mr. Hemmings was 38 years old. He had been at the Toronto East Detention Centre (TEDC) since his arrest in September of 2018. Prior to his arrest he was residing in a home in Markham with his mother and brother. He apparently financially supported himself by employment in hardwood floor installation and auto mechanics. His driver’s license was suspended.
21Mr. Hemmings was born in Jamaica. He was primarily raised by his paternal grandmother and father in Jamaica until he moved to Canada to reside with his mother in 1990 at around the age of eight years. He is a Canadian citizen. His mother, Andrea, is in her 60’s. She is College educated and works as an administrative assistant. She has been remarried and has two other sons from different relationships. She lives in Markham with one of Mr. Hemmings half-brothers. Mr. Hemmings has not seen his father since 2000 and last spoke to him in 2018. He has not spoken to his paternal grandmother since 2016. Mr. Hemmings denied any physical, sexual, emotional abuse or neglect during his formative years in Jamaica.
22When he arrived in Canada with his mother he stayed with his maternal grandmother. His mother resided elsewhere until he was 12 when he went to live primarily with her. He would go back and forth between the two residences over the years. At age 16 he ran away from his mother’s home and lived with a friend but when that didn’t work out, he returned home. Mr. Hemmings reported to Dr. Penney that he does not have regular contact with either of his siblings. He also reported that his mother visited him in jail but that he asked her to stop as he was uncomfortable with her coming into a correctional facility.
23As for schooling, Mr. Hemmings has provided inconsistent accounts over the years and there are apparently few records to shed light on which version of his educational history is accurate. The inconsistencies in his self-reporting are outlined in paras. 4 to 6 of Dr. Wilkie’s report and include:
- he failed most grades but was advanced to the next year nonetheless;
- he never failed a grade;
- he was diagnosed with a learning disability in grade 4 or 5 and was placed in special education classes until grade 7 or 8;
- he has never been diagnosed with a learning disability;
- he was never suspended from elementary school but was expelled in grade 5 after being accused of threatening a peer, though he can recall few details;
- he was suspended in grade 4 or 5 for making a rude comment to a female peer;
- he was never suspended or expelled from high school;
- he was suspended once from high school;
- he was never expelled from high school but was moved from one school to another after being accused of threatening someone with a bat;
- he was suspended and expelled from high school due to fighting, tardiness and an allegation of possession of drugs on school property;
- he graduated from Highfield High School in Barrie (a school that does not appear to exist);
- he left high school on his own accord in grade 9 and only completed grade 8;
- He was suspended from school in grade 9 when he stole a VCR from school property and never returned;
- He attended school until grade 10.
24Mr. Hemmings reported to Dr. Wilkie that he completed the credits necessary to obtain his high school diploma in Kingston Penitentiary (KP) in 2012.
25The timeline and accuracy of Mr. Hemmings’ employment history is also unclear. Mr. Hemmings did not give his permission for Dr. Wilkie to interview some important sources of information, including family members, friends or co-workers, despite him being informed of the importance of this information to the assessment. Dr. Wilkie explained that this presents a limitation in this case given some discrepancies in Mr. Hemmings self-reporting. Dr. Wilkie testified that with respect to his employment history Mr. Hemmings was “vague, despite repeated questioning, in terms of trying to have an accurate timeline”.
26After leaving high school, Mr. Hemmings reported that he initially mainly hung around with friends. Over the years he has worked intermittently at landscaping, floor installation, and auto mechanics though the timeline of his employment positions is not clear. At age 17 he went to Jamaica on the recommendation of his mother, to interrupt the emerging pattern of his involvement with the criminal justice system. He remained in Jamaica for two years, staying with friends. He saw his father occasionally but had limited contact with family. He returned to Toronto at age 19. He stayed with his mother and collected welfare for a period of time then moved in with a friend. He resumed employment as a hardwood floor installer. He acknowledged to Dr. Wilkie that he was also making money trafficking cocaine from age 20.
27Mr. Hemmings was incarcerated for over 6 years, between the approximate ages of 25 to 31 years. After leaving the penitentiary he moved to Quebec and worked with friends installing floors and fixing cars for the next three years before returning to Toronto and prior to his arrest. He reported to Dr. Wilkie that he started his own business at one point but was also fine working for other people. He reported to her that that he has never been fired from a job or disciplined in the workplace. He denied getting into any kind of trouble at any of his places of employment and described himself as a good worker. That would seem to be at odds with his conviction in 2008 for assault causing bodily harm as his employer was the victim of that offence.
28Dr. Wilkie reports an overall instability with respect to Mr. Hemmings interpersonal relationships related to his antisocial personality disorder. Mr. Hemmings has never been married and has had few intimate long-term relationships, though he has had an on again off again relationship with a woman named Zahara. With Dr. Penney, Mr. Hemmings denied ever having been physically violent with Zahara or any other intimate partner. When asked about previous assault convictions, which involved Zahara, her sister and her mother as victims, Mr. Hemmings told Dr. Penney that he only pushed the apartment door open and denied threatening or assaulting anyone. In fact he plead guilty to these domestic assault related offences in January of 2008.
Criminal History
29During the assessment process, Mr. Hemmings either declined to talk about many of his past charges or convictions or minimized or denied his involvement. Dr. Wilkie concludes that this is, at least in part, due to his antisocial personality disorder.
30The record of Mr. Hemmings prior criminal convictions, and the factual background of these offences, demonstrates a pattern of repetitive behavior and violent offending triggered by a failure to control his temper.
31Beginning in 1996, as a youth, Mr. Hemmings has amassed a total of ten assault related convictions including, assault causing bodily harm and aggravated assault. In total, he has been convicted of over 40 offences within the last 25 years. The details of that criminal history are significant.
32In April of 1996 Mr. Hemmings was found guilty of an assault as a youth. In that same year he was found guilty of two more assaults and several breaches of recognizance as well as theft and robbery. In 1997 he was found guilty of carrying a concealed weapon, disguise with intent and robbery. In 2000, while still a youth, he was found guilty of carrying a concealed weapon, failure to comply with a recognizance and possession of a schedule one substance for the purpose of trafficking.
33In 2001, 2003 and 2004 he was convicted as an adult of trafficking drugs, possessing counterfeit money and failing to comply with a probation order and an undertaking.
34In 2005 Mr. Hemmings plead guilty to assault causing bodily harm and forcible confinement. He attended the residence of the female victim for the purpose of delivering crack cocaine. When she asked for credit, Mr. Hemmings became enraged. He beat and choked her until she turned purple. He barred the victim from leaving her bedroom for approximately 30 minutes. After the victim reported the incident to police and a warrant was issued for his arrest, Mr. Hemmings told her he would be at her apartment between 3 and 5 pm with a gun. He was arrested on arrival, although no gun was found. Mr. Hemmings told Dr. Wilkie that he does not admit his criminal liability in relation to this matter and that he pleaded guilty to it in order to be released. He was convicted in 2005 with failing to comply with probation and in 2006 with trafficking.
35In 2007 Mr. Hemmings plead guilty to aggravated assault. Mr. Hemmings was in the prisoner’s box in court when he got into an argument with a man seated in the body of the court. As the argument escalated, an officer of the court attempted to remove Mr. Hemmings. Mr. Hemmings headbutted the officer in the face and, while being removed from the courtroom, bit deeply into the muscle tissue of his biceps. He was sentenced to three (3) months custody, with eight (8) months custody served pre-sentence, and two years of probation.
36In January, 2008, Mr. Hemmings plead guilty to break and enter and assault. He got into an argument over money with the mother of a woman with whom he was in a relationship. Mr. Hemmings threatened to kill the mother and hit her causing her to fall backward. Her two daughters sought to intervene and one tried to call police. Mr. Hemmings hit her arm, knocked the phone out of her hand, and pushed her while she was holding her child in her arms. In Dr. Wilkie’s report it is noted that Mr. Hemmings stated he pleaded guilty to this offence just to avoid a trial. He received a sentence of 4 months custody with credit for six months pre-sentence custody, and two years probation. A few months later he was charged with assault with intent to resist arrest and received a fine.
37In 2009 Mr. Hemmings was convicted of aggravated assault, but acquitted of attempted murder. According to the Reasons for Sentence, Justice Chapnick found that Mr. Hemmings intentionally stabbed the victim in the chest with a knife he had retrieved from his kitchen, causing permanent injuries, including a loss of the victim’s spleen. He was sentenced to six and a half years. with 4 months consecutive for a conviction of dangerous operation of a motor vehicle. Following his release, he was almost immediately charged again and was convicted of breaking and entering in 2014.
38In 2018 Mr. Hemmings plead guilty to assault causing bodily harm. The transcript reveals that Mr. Hemmings became enraged while asking the victim, his then employer, about a missing backpack. When he was unsatisfied with the answer that the backpack was in a work truck that was not on site, he attacked the victim. He struck the victim with his fists, kicked him and choked him, and beat him until he vomited. Following the assault, Mr. Hemmings stole a work vehicle and fled the scene. The victim was taken to hospital. While Mr. Hemmings pleaded guilty to the charges, he later attempted to retract his pleas as he disputed the facts. The judge did not strike the plea. In Dr. Wilkie’s report Mr. Hemmings stated he thought the victim was being disrespectful and that he would not lose his things without a fight, and, as he was not used to calling the police for assistance, managed the situation himself.
39The predicate offences, as described above, were committed a few months later, in August of 2018. He was still serving his conditional sentence at the time and he has been in custody since the time of his arrest.
40In addition to assault related charges, Mr. Hemmings has been convicted of a variety of other offences, including robbery, breaking and entering, and several drug-related offences. He has repeatedly failed to comply with conditions of probation or parole. As well, he has a lengthy history of institutional misconducts, many of them violence related.
Psychiatric Evidence: Diagnosis and Risk Assessment
41Dr. Wilkie conducted an examination of Mr. Hemmings pursuant to section 752.1 of the Criminal Code. In her report, under the subheading “Assessment of Dangerous Offender”, she states:
I would state, at the outset, that the considerations noted below, are described from a purely psychiatric perspective. Mr. Hemmings has engaged in criminal behavior that would be likely to cause harm to another as a consequence. His behavior suggests difficulties in considering the antecedents and consequences of his behavior. He has offended during period of community supervision, including the index offense. He did not evidence a change in his risk cycle after a period of incarceration during which he attended programming aimed at addressing his identified risk issues.
The above-noted risk assessment suggests that Mr. Hemmings present with a high risk of re-offence. Assessment of whether there is a reasonable expectation of eventual control of risk in the community hinges on whether salient risk variables could be considered manageable and whether treatment, in conjunction with supervision, offers hope that risk could be managed in the community; this concept is not particularly well defined from a psychiatric perspective. I have listed below the factors I have taken into consideration in offering my opinion.
Mr. Hemmings current diagnoses are antisocial personality disorder and substance use disorders. Individuals with antisocial personality disorder and more psychopathic traits, scoring 25 or above on the PCL-R, generally show a less robust response to treatment and supervision, with a greater likelihood of refusing treatment or dropping out. In addition, individuals with a personality disorder are typically seen as being less amenable to treatment interventions. Mr. Hemmings manifests a high degree of psychopathic traits, including callousness/lack of empathy, a need for stimulation, irresponsibility ad poor behavioural controls. He manifests pervasive antisocial attitudes and association with crime-involved and substance-using peers. These characteristics may affect engagement in, and potential response to, psychological interventions aimed at addressing behaviors related to personality dysfunction.
Substance-abusing offenders with concurrent antisocial personality disorder do not appear to benefit from substance use treatment in the same manner as offenders who do not carry a diagnosis of anti-social personality disorder, at least with respect to impact on recidivism. However, there does appear to be a potential benefit in terms of reducing the frequency and intensity of substance use. Individualized, and more intensive, treatment and management intervention, may improve Mr. Hemmings’ responsivity. There were no other responsivity issues identified during his prior Federal incarceration or periods of supervision. As per Dr. Penney’s psychological report, he appears to have cognitive resources to engage in, and benefit from, different treatment modalities.
Overall, when one considers his diagnoses of antisocial personality disorder and substance use disorders, Mr. Hemmings’ prognosis for successful treatment (and a reduction in risk for further violent offending) is average compared with other offenders.
42Dr. Wilkie’s report concludes that Mr. Hemmings presents a high risk for general and violent recidivism. In fact, from a clinical and actuarial prospective she places him in the highest category of risk.
43Dr. Wilkie summarized her findings regarding Mr. Hemmings response to treatment as follows:
In summary, Mr. Hemmings does appear to have the ability to engage in treatment and educational programming, particularly when in an environment with a high degree of structure or supervision. His motivation was described as variable, and his engagement with the material on a personal level was, at time, superficial. Of note, he re-offended after having participated in programming aimed at addressing some of his primary risk issues, namely anger dyscontrol and antisocial attitudes; his ability, therefore, to utilize skills has not been evident in terms of reducing risk or re-offending. Notably, however, he had not engaged in programming to address his severe substance use problem.
44It is clear from Dr. Wilkie’s evidence that she believes that Mr. Hemmings suffers from a severe substance use disorder. It is her opinion that because he has not engaged in programming to address his severe substance abuse problem in the past, treatment of this risk variable provides a basis for a hope that there would be a reasonable expectation of eventual control in the community. She testified that:
In my view, his extensive substance use history is a significant risk variable for Mr. Hemmings. And so his participation in programming and his substance abstinence would be key variables in a risk management plan. …
I think that he did engage in some treatment when he was in the penitentiary. The description of him in that treatment is that he participated, but he was overall quiet, somewhat guarded and made some gains. I would indicate my understanding form his self-report, however, that he was using substances f the duration of his time in the penitentiary, and that may have had an impact on his ability to participate in the treatment. To answer your question, I would agree that this is a continuation of his risk cycle, despite having participated in those treatment programs. However, it’s not my opinion that all of his risk issues were either highlighted at the time – and I am specifically talking about severe substance use problems – or managed, previously.
45In her report, Dr. Wilkie wrote:
In summary, the above noted risk assessment suggests that Mr. Hemmings presents with a high risk of future violence. There would be challenges, from a psychiatric perspective, regarding Mr. Hemmings’ future manageability in the community. However, given that he has not had the opportunity to engage in intensive treatment targeting all of his primary risk variables, and noting that his prior community supervision had not included some identifiable risk management interventions, it is my opinion that there would be a reasonable expectation of eventual control of risk in the community, contingent on the availability and implementation of, and his ongoing participation in, intensive treatment and management interventions as detailed below.
Available Treatment and Programming
46Ms. Marlene Do Rego, an experienced parole offer from Correctional Service Canada, testified about process and programs available for a person such as Mr. Hemmings. She explained the difference between supervision available for those with an indeterminate sentence and those under a LTSO. She explained the procedure and consequences if there was a breach of conditions, of if there was a concern that there may be a potential increase in risk, and what measures can be taken to protect the public under with a LTSO or an indeterminate sentence. Her testimony was very helpful.
47Ms. Do Rego confirmed that if Mr. Hemmings receives an indeterminate sentence, he would be technically eligible to apply for day parole four years from the date of his arrest for the predicate offence. He would be eligible for full parole seven years from the date of his arrest. Every two years thereafter, there is a mandatory review of dangerous offenders by the National Parole Board for those who are subject to an indefinite sentence.
48When an offender is subject to a LTSO the offender is generally released to a community based residential facility with conditions imposed by the Parole Board to address identified risk factors. These conditions may include things like random urinalysis, non-communication with identified individuals, geographic restrictions, and curfews.
3. Analysis
The General Legal Principles that Govern
49The 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 behavior. 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. 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.
50For a defendant to be designated a dangerous offender (“designation stage”), an assessment report needs to filed under subsection 752.1(2) and the Crown must prove beyond a reasonable doubt that the offender meets the standard set out in section 753 of the Code. The defendant must be found guilty of a “serious personal injury offence” as defined in s.752 and the offender must represent “a threat to the life, safety or physical or mental well-being of other persons”. This second element, the requisite threat level, requires that the judge evaluate the threat posed by the offender on the basis of evidence establishing one of the three stand-alone violent patterns of conduct set out in s.753(1) (a) [2]. These grounds have not changed since the enactment of the scheme in 1977 and were definitively interpreted by the Supreme Court of Canada in R. v. Lyons which states:
26In Lyons, Justice LaForest read the objective element of the designation – the requirement that the predicate offence be a “serious personal injury offence” – together with the subjective element – the “threat” assessment – and concluded that 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 of the assessment of the “threat” posed by the offender. The last two of these are future-oriented, and Justice LaForest 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 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 of another in each subparagraph of s. [688, no 753] is the requirement that the court must be satisfied that the pattern of conduct is substantially or pathologically intractable. [emphasis added; p. 388]
27The 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 behavior that the offender is unable to surmount. Through these two criteria, Parliament requires sentencing judges to conduct a prospective assessment of dangerousness.
51As made clear in Boutilier [3] while the Crown must prove every dangerousness criterion beyond a reasonable doubt ([R. v. Gardiner, 1982); R. v Jones) what must be proven beyond a reasonable doubt with respect to these two prospective criteria is not their certainty, but their likelihood: R. v. Currie at para. 42. This is so because “as a matter of practicality, the most that can be established in a future context is a likelihood of certain events occurring”: Lyons, supra, at p. 364.
The Dangerous Offender Criteria
(1) Is the Predicate Offence a “Serious Personal Injury Offence”?
52“Serious Personal Injury Offence” is defined in s. 752 as including an indictable offence involving the use or attempted use of violence against another person or 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. The predicate offence of aggravated assault, namely the unprovoked savage public beating of a man with a metal pipe, clearly meets this definition.
(2) Is the Predicate Offence part of a broader pattern of Violence?
53To establish a pattern of repetitive behavior under ss.753 (a)(a)(i) or persistent aggressive behavior under ss. 753(1)(a)(ii), the Crown must prove beyond a reasonable doubt that there is a sufficient connection between the predicate offences and the prior acts of violence committed by the offender. The inquiry must take into account the nature and context of the acts committed. Both parties agree that these criterion have been met in this case under both sub-sections.
54The essence of the pattern defined in section 753(1)(a)(1) is that there are sufficient similarities between each example of that pattern such that it helps serve as a predictor of future offending: see R. v. Hogg at paragraph 40. The offences need not be the same in every detail as long as there are sufficient other similarities between the different offences. Despite their differences, I am satisfied that there are sufficient similarities to make out the requisite pattern in that Mr. Hemmings has committed a number of serious acts of violence in the past for at best trivial reasons.
55Pursuant to section 753(1)(a)(ii), 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. Here the focus is on aggressive behavior and indifference to others as opposed to similarity in behavior. I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Hemmings has engaged in a persistent pattern of aggressive conduct. He has numerous convictions for violence, including a prior conviction for aggravated assault. In light of the persistent and continuous theme of violence and aggression, I am satisfied this prong has been made out.
(4) Is there a high likelihood of harmful recidivism?
56It is readily apparent from the record that, absent significant intervention, Mr. Hemmings poses a high likelihood of harmful recidivism. If he is left untreated he poses a threat to the safety of the public. The issue then becomes, is there a realistic possibility that Mr. Hemmings’ violent behaviour can eventually be controlled in the community? Or is this possibility nothing more than a mere hope?
(5) Is Mr. Hemmings’ violent conduct intractable?
The Test
57The sole issue to be decided at the designation stage is whether the Crown has proven beyond a reasonable doubt that Mr. Hemmings behavior is “intractable”. In the decision in Boutilier, Cote J. defined “intractable” as referring to “behavior that the offender is unable to surmount”:
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 behavior that the offender is unable to surmount. Through these two criteria, Parliament requires sentencing judges to conduct a prospective assessment of dangerousness. (para. 27)
58As further explained by Justice Cote in Boutilier at para. 31:
As I will discuss below, the purposes of prospective evidence at the designation and sentencing stages are different. The designation stage is concerned with assessing the future threat posed by an offender. The penalty stage is concerned with imposing the appropriate sentence to manage the established threat. Though evidence may establish that an offender is unable to surmount his or her violent conduct, the sentencing judge must at the penalty stage, turn his or her mind to whether the risk arising from the offender’s behavior can be adequately managed outside of an indeterminate sentence.
59Someone for whom there is no hope of rehabilitation would meet the definition of “intractable” but the Supreme Court did not mean that to be a prerequisite to that finding. That would mean that all designated dangerous offenders would receive indeterminate sentences and that is not what is anticipated by the legislation. Parliament clearly envisioned that some “intractable” offenders, despite posing a future risk, will eventually be manageable in the community, given the wider range of sentencing options under the current dangerous offender legislation.
60As Justice Cote wrote at para. 45 of Boutilier, “[O]ffenders will not be designated as dangerous if their treatment prospects are so compelling that the sentencing judge cannot conclude beyond a reasonable doubt that they present a high likelihood of harmful recidivism or that their violent pattern is intractable”.
61Wilson J. in R v. V.M., provided a very helpful summary of the law concerning intractability. She wrote,
106 The designation as a dangerous offender requires that the offender’s he 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, 159 C.C.C. (3d) 155 (BCCA), 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 “eventually control in the community is the counterpart to “substantial 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 (BCCA) 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. 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), 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), February 26, 2002 (Ont. Sup. Ct.). She cites R. v. J.G.T., 2000 ABQB 51,[2000] A.J. No. 938 (Alta QB), 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. 2011 ABQB 760, 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.”
62In R. v. Broadfoot, 2018 ONCJ 215 at paras 75-76, Justice Greene states:
The 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 trail 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.
63Determining whether or not a high risk of recidivism and intractability are present necessarily involves a prospective inquiry into whether an offender will continue to be, in Justice Dickson’s words (as he then was), “a real and present danger to life or limb”: Hatchell v. The Queen. This prospective inquiry was critical to the conclusion of the highest Court in Lyons that the regime is constitutional. Therefore, a sentencing judge is required to consider evidence of future treatment prospects when deciding whether to designate an offender as dangerous and not just when determining an appropriate sentence.
64A finding of dangerousness requires the Crown to demonstrate, beyond a reasonable doubt, a high likelihood of harmful recidivism and the intractability of the violent pattern of conduct. It is therefore relevant at the designation stage to consider evidence of future treatment prospects.
Intractability
(i) The Psychiatric Diagnosis and Risk Assessment
65Drs. Wilkie and Penney both diagnosed Mr. Hemmings as having an antisocial personality disorder. They found that he also exhibits a high degree of psychopathic traits. Three features of Antisocial Personality Disorder (APD) are impulsivity and a failure to plan ahead; a reckless disregard for the safety of others; and a lack of remorse, as indicated by being indifferent to or rationalizing having hurt, mistreated, or stolen from another. Dr. Wilkie concludes that Mr. Hemmings has demonstrated each of these features and in fact meets all seven (7) criteria for APD, though only three are required to make a diagnosis.
66Individuals with APD and who score 25 or above on the PCL-R, such as Mr. Hemmings, generally show a less robust response to treatment and supervision, with a greater likelihood of refusing treatment or dropping out. Dr. Wilkie and Dr. Penney both put Mr. Hemmings in the very highest category for violent recidivism.
67With respect to personality disorders, Dr. Wilkie clarified that it is more accurate to refer to “management” rather than “treatment”. These are not the kind of disorders “that with a medication or treatment would be expected to go away or abate but rather may require ongoing management of antisocial behaviours and attitudes.”
68Dr. Wilkie also identified as an additional risk variable a significant substance abuse problem that, she concludes, has gone largely undetected and untreated. She opines that this oversight may have hindered his past treatment in relation to his other risk variables. Dr. Wilkie concludes that there is a reasonable expectation of eventual control of risk in the community because Mr. Hemmings has not had the opportunity to engage in intensive treatment targeting all of his primary risk variables. At one point in the report she describes this as a “hope”. This hope is contingent on the availability and implementation of intensive treatment and Mr. Hemmings’ motivation to engage and participate in treatment.
69When asked to explain what conclusions can be drawn from Mr. Hemmings’ limited understanding of his anger issues, in relation to his substance abuse problem, Dr. Wilkie testified:
I think that that’s difficult to parse out, given the fact that he indicates that he has used substances on a daily basis, for a prolonged period of time. And so he has not had as prolonged period of substance abstinence for many years, apart from now, currently, in the institution, since his most recent arrest. He does appear to have some insight into the fact that substance use does facilitate his anger dyscontrol, but it [sic] not view that he has fulsome insight into either his anger problems or his substance use problems…. I think both of those variables, again, are central risk issues for Mr. Hemmings and that there would be a need for external supervision with regard to his, both substance abstinence and his ability to comply with programming and abstinence from substances.
70As Dr. Wilkie makes clear, her opinion on risk management is reliant upon a number of factual assumptions. Those assumptions are largely (and in some cases exclusively) based on the truthfulness of Mr. Hemmings’ self-reporting, and they include that:
- he regularly/daily consumed substances in the penitentiary;
- he is now abstaining from alcohol and drugs and has been for two years;
- he is now willing to take treatment;
- he was under the influence of alcohol during the commission of the predicate offences; and,
- he has a history of stable employment.
71Dr. Wilkie described the principal factors mitigating risk as being Mr. Hemmings current abstention from drugs and alcohol and his willingness to pursue treatment. In assessing an opinion offered on eventual control in the community, it is important to examine the strength of the factual assumptions that underlie it. Dr. Wilkie’s opinion, seen in the context of this record, suggests at most a dubious prospect of rehabilitation or treatment.
Daily Use of Drugs and Alcohol
72Dr. Wilkie’s opinion on risk management is based in part upon Mr. Hemmings’ assertion that, unbeknownst to his case management team, he was using both alcohol and cannabis daily while in the penitentiary. This is not clearly reflected in his institutional records. He had several misconducts for making brew in his cell. However, it is not clear to the authorities whether he was making brew for self-consumption or sale.
73Dr. Wilkie was asked whether she believed Mr. Hemmings when he told her he was consuming brew and cannabis on a daily basis in the penitentiary. She testified “I think it’s difficult for me to know exactly the amount of substances that he was using” in the institutions and the community. He may have been guarded with people in the institution and that was why the case management team were not aware of the extent of his substance abuse. She agreed that it is also possible that he was untruthful with her when describing his substance use in the past.
74While there is a basis to conclude that Mr. Hemmings has a substance abuse problem, the extent of that problem and its impact on previous treatment modalities is at best unclear.
Abstinence for Two Years
75Similarly, it is difficult to assess the accuracy of Mr. Hemmings’ self-report to Dr. Wilkie that he has remained abstinent for the past two years. As is clear from a review of the personal information provided by Mr. Hemmings to Drs. Wilkie and Penney, his self-reports are frequently inconsistent on any given subject, whether it be schooling, employment or criminal history. Whether he has in fact been abstinent for two years is unclear.
76Mr. Hemmings gave Dr. Wilkie contradictory answers as to whether he would continue to use drugs and alcohol. While he has stated that his current plan is to remain abstinent from alcohol and drug use, he also stated that he is considering only drinking on special occasions. He made these conflicting assertions despite having attended Alcoholic Anonymous from 2018 to 2020. As for his cannabis use, he acknowledges it’s a problem but noted that “it’s legal .. for recreational now.”
Mr. Hemmings is Willing to Take Treatment for Substance Abuse
77Throughout his assessment with Dr. Wilkie, Mr. Hemmings reported that he is willing to pursue treatment. He primarily (if not exclusively) acknowledged having a problem with substance abuse and suggested that it played a significant role in his offending. He expressed a willingness to engage in counselling specifically targeted to address his substance abuse issues. Since being incarcerated at the Toronto East Detention Centre, Mr. Hemmings has sought out treatment for alcohol abuse. According to Dr. Penny’s report and Dr. Wilkie’s testimony, Mr. Hemmings spoke highly of his experience in treatment and felt it had been beneficial to him.
78Dr. Wilkie acknowledged in her testimony that an expressed willingness to pursue treatment is not unusual during the assessment process and not a significant predictor of future behavior. Mr. Hemmings’ attitude towards treatment remains a highly relevant factor in the assessment of risk. He told Dr. Wilkie that there is nothing he would change about himself. He continues to deny, minimize and deflect blame in relation to his past offending. His continued failure to take responsibility for the past or predicate offences is relevant to assessing his willingness to take, and more importantly benefit from, future treatment.
79In Dr. Wilkie’s report it is stated that:
Mr. Hemmings reported a willingness to participate in any recommended programs and to adhere to any conditions placed upon him prior to, and during, a release into the community. He qualified this by stating he would only respect someone making treatment recommendations if they knew him well, over a prolonged period. He also varied on his pursuit of substance abstinence, at times saying that he would not drink or use drugs, and at another time indicating he considered drinking only on special occasions or using small amounts of cannabis. His internal motivation to attend programming on an ongoing basis, particularly if intensive, is not clear. Notably, he had not independently sought out treatment or programming in the community despite indicating he was aware of the problematic nature of his substance use and anger dyscontrol. He did not generally follow-through on recommendations to engage with treatment while on community supervision. [emphasis added]
80Mr. Hemmings’ assertion that he would only respect someone making treatment recommendations if they knew him well, for one-to-two years, paints a poor picture of future program compliance. Further, he has a history that includes multiple breaches of court orders seeking to manage his behavior, including conditions of release, probation and parole.
The Ineffectiveness of Past Treatment
81It is noteworthy that the past periods of incarceration that Mr. Hemmings has served, including the sentence of six and a half years he received following the aggravated assault conviction in 2009, have not deterred him from further violent offending. In the past, in custody and out, Mr. Hemmings has attended programming, including intensive programming directed at violent behavior, but was insufficiently engaged to effect change in his patterns. In fact, Mr. Hemmings has completed several programs over the years with the goal of reducing the risk of recidivism:
- Encourage youth: Project Turnaround, February 4 to June 25, 2000
- Cognitive skills Program, February 7 – March 3, 2000
- Substance Abuse Program, March 16 – April 10, 2000
- Was referred to the John Howard Society while on probation but did not attend
- Thinking for success programme, July 2018
- Anger Management Program, September 2008
- Personal Support Worker, December 2011 – May of 2012
- Violence Prevention Program, January 11 – April 13, 2012
- Family Violence Prevention Program, August 1, 2012 to February 23, 2013
- Alcoholics Anonymous (AA) 2018 – 2020.
82Most notably, in 2012, Mr. Hemmings completed a high intensity Violence Prevention Program. While he attended 34 sessions, it was noted that “Mr. Hemmings does not take full responsibility for his crime; therefore it was difficult for him to apply some of the skills he was taught.” According to a Program Performance Report final, Violence Prevention Program dated August 1, 2012 – February 22, 2013, Mr. Hemmings expressed disdain for the program and his performance on the written assignments sometimes reflected minimal effort. It was noted at the outset of the program, Mr. Hemmings saw “little need to change in many areas of his functioning as he indicated he had already made the necessary changes to avoid using violence in the future”.
83According to the Program Performance Report final, moderate intensity Family Violence Prevention, dated May 25 – August 30, 2012, Mr. Hemmings reported that he did not think his participation in previous correctional programs had been helpful. It was noted that his participation was “quite low overall, preventing him to make any measurable progress toward lowering his risk level.” He has shown an inability to comply with regulation even while in a highly structed environment, demonstrated by his long list of institutional misconducts, many of them for violence, despite past treatment.
Ongoing Lack of Remorse, Empathy and Insight
84Mr. Hemmings lacks remorse, victim empathy and insight. When asked about his feelings of remorse, he reported feeling sorry for himself. He has a noted difficulty recognizing the impact of his actions on others. Of his decision to beat the victim with a metal pipe in the predicate offence, Mr. Hemings stated that he “didn’t think too much” and that he “took the pipe and solved it.” In her report, Dr. Wilkie states that Mr. Hemmings has difficulty in considered the antecedents and consequences of his criminal behavior.
85As for his self-perception, Mr. Hemmings described himself to Dr. Wilkie as reliable, trustworthy and someone who likes to work. He denied being an impulsive person or having difficulty handling his emotions. He told the psychiatrist that he would not change anything about himself. Dr. Wilkie testified that Mr. Hemmings’ tendency to minimize his difficulty with anger, and his insight “is somewhat limited” not only with respect to his risk factors but also in terms of the nature and intensity of the treatment that would be required. Dr. Wilkie testified that a lack of insight is not necessarily a bar to successful treatment. Insight can be developed in the course of treatment, especially if it is intensive treatment. However, it would seem that there has been no change in Mr. Hemmings’ attitude towards his aggressive and criminal behavior since his last attempts at treatment, which were clearly ineffective.
86Mr. Hemmings continues to deny outright, or seek to justify, his prior offences including those he plead guilty to. When discussing his prior offences with Dr. Wilkie, he completely denied committing the assault cause bodily harm that he pleaded guilty to in 2005, stated the victim was a paid informant, and said that he pleaded guilty in order to be released. He denied responsibility for the assault he pleaded guilty to in 2008, stated he did not break into the house, did not assault anyone, and that he pleaded guilty just to get it over with. Regarding the aggravated assault he was convicted of in 2009, it is noted that Mr. Hemmings said during a 2010 risk assessment that “some guy came into his house and attacked him so he stabbed him” Regarding his 2018 guilty plea to assault causing bodily harm, Mr. Hemmings again minimized his behavior, stating that the victim was “disrespectful” that he “just wasn’t going to have it”, and that the disagreement got “physical”. (p. 9, 27-8)
87When discussing the predicate offences with Drs. Wilkie and Penney, Mr. Hemmings repeatedly minimized his behavior and blamed the victims. He stated that Mr. Blair was the initial aggressor, that his accusation that Mr. Hemmings stole from his girlfriend’s purse was “degrading” and “vexing” and that he could not allow that accusation to stand. According to Dr. Wilkie’s report, “he asked why the responsibility for the incident lay with him, asking, `I’m a dangerous offender because I went into somebody’s purse?”. He described the offence as an “isolated incident”. When asked what he would do if he saw the victim while on release, Mr. Hemmings indicated that he would try and talk to him and “clear up” the issue that he did not steal from the purse – the very argument that led to Mr. Hemmings’ violent assault on Mr. Blair. Furthermore, he reiterated that he “had to take action in the way that he did due to the victim’s threatening stance and accusations against him” and denied being motivated by anger.
88Mr. Hemmings current level of denial in relation to the predicate offences echos the level of denial he has demonstrated regarding his previous offences. This presents a serious question about his likely engagement in treatment and its effectiveness.
Mr. Hemmings was Under the Influence When he Committed the Predicate Offence
89Dr. Wilkie appears to accept Mr. Hemmings’ assertion that he was under the influence of alcohol at the time of the predicate offences. In fact, Dr. Wilkie points to this “admission” as evidence of Mr. Hemmings’ insight into the role that substance use has played in his offending. However, I find that it is not so much an admission as an excuse by Mr. Hemmings. There was no evidence whatsoever that Mr. Hemmings was under the influence of any substance when he brutally assaulted Mr. Blair. Further, a review of the video shows someone who is in complete control of his behavior. He does not appear to be under the influence of alcohol and he did not testify to that fact either at trial or on this application.
Conclusion on Intractability
90Mr. Hemmings is a very violent man and has been diagnosed with antisocial personality disorder and a high degree of psychopathic traits. He has a lengthy history of crime, including serious personal injury offences. He has a substance use disorder. He views significant aggression as justified in the face of a perceived slight by others. He feels no empathy for those that he hurts. His involvement in drug trafficking puts him in situations where the use of violence is more likely. Drs. Wilkie and Penney both assessed him as at the highest level of general and violent recidivism and there is no doubt that he is a substantial risk to re-offend in a violent manner.
91In stating that there would be a reasonable expectation of eventual control of risk in the community, Dr. Wilkie specifically states that, while there would be challenges:
… given that he has not had the opportunity to engage in intensive treatment targeting all of his primary risk variables, and noting that his prior community supervision has not included some identifiable risk management interventions, it is my opinion that there would be a reasonable expectation of eventual control of risk in the community, contingent on the availability and implementation of, and his ongoing participation in, intensive treatment and management interventions as detailed below.
92While a new treatment option is relevant to the assessment of whether there is a reasonable expectation of eventual control of risk in the community, it is not determinative. Mr. Hemmings not only has substance abuse issues, but an antisocial behavioural disorder with a high degree of psychopathic traits. Prior treatment has not been successful at managing his behavior. The fact that an offender has not undergone a particular treatment in the past does not mean that the offender is manageable. In Simon, the Ontario Court of Appeal affirmed this basic proposition:
The trial judge thoroughly canvassed the evidence relevant to the appellant’s treatment prospects. He was alive to the fact that the appellant had not undergone a previous treatment regime aimed at the problems identified by Drs. Woodside and Federoff … Like the trial judge, I see the absence of prior treatment efforts as relevant to, but in now way determinative of, the assessment that the trial judge had to make.
R. v. Simon, 2008 ONCA 578, [2008] O.J. No. 3072 at para. 93. See also, R. v. H.B., 2011 ONSC 1413, [2011] O.J. No. 1049 at para. 122; aff’d 2013 ONCA 509; R. v. Goforth, 2017 SKCA 110 at paras. 43-44, 53-54; R. v. Egan at paras 115 & 185; R v. Halliday, 2012 ONSC 3090 at paras. 8 – 10, 15.
93I find that Mr. Hemmings poses a substantial danger to the safety of the public and there is no reasonable expectation of eventual control in the community of that risk. I do not suggest that there is no hope whatsoever that Mr. Hemmings can be treated. However, the record shows that it is a mere possibility based on certain contingencies, and nothing more. Those contingencies rely in part upon the truth of Mr. Hemmings’ assertions during the assessment process, that he will not reoffend and will actively engage in treatment, and therefore must be approached with a great deal of skepticism. I find that the Crown has proven beyond a reasonable doubt that Mr. Hemmings’ violent behavior is intractable and he is a dangerous offender.
94Nonetheless, Dr. Wilke’s opinion on how to manage the significant risk Mr. Hemmings presents to the community remains central to a determination of a fit sentence, as elaborated upon below.
Stage 2: The Appropriate Sentence
The Legal Principles that Govern
95Once the Crown has proven beyond a reasonable doubt that the offender meets the dangerous offender criteria set out in section 753(1), the Court must go on to consider the applicability of the long-term offender provisions. The essential question to be determined is whether the sentencing sanctions available through the long-term offender/determinate sentence provisions are sufficient to reduce the threat posed by the offender to an acceptable level, despite the fact that the statutory criteria in s. 753(1) have been met. In other words, can the court be satisfied that there is a reasonable expectation of eventual control of the substantial risk posed by the offender in the community?
96Since the 2008 amendments, indeterminate detention is no longer automatic for a dangerous offender. Rather, this sentence is only one option among others available under s.753(4) of the Code. In lieu of an indeterminate sentence, a judge may impose a sentence that is more proportionate to the predicate offence, whether it is imprisonment of two years or more followed by a long term supervision order or a sentence under the regular sentencing regime.
97Section 753 (4.1) of the Code was introduced in 2008 and reads as follows:
(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.
98Section 753(4.1) guides the discretion of the judge who ultimately must determine the fittest sentence in a given case based on the totality of the evidence. It essentially codifies “the exercise of discretion required by Johnson in light of the regime’s general purpose of public protection in dealing with offenders presenting a very high likelihood of harmful recidivism”: Boutilier at para. 64. Under s. 753(4.1) the sentencing judge is under the obligation to conduct a “thorough inquiry” into the possibility of control in the community and, once that investigation is conducted, to determine the sentence; there is no obligation on any of the parties to prove on any standard the adequate sentence one way or the other. If the sentencing judge has exhausted the least coercive sentencing options, indeterminate detention in a penitentiary is the last option.
99Under s.753(4), a long-term offender sentence remains available for dangerous offenders who can be controlled in the community in a manner that adequately protects the public from murder or a serious personal injury offence. As stated in Boutilier at para. 77:
Imposing indeterminate detention where the sentencing judge is not satisfied that there is a “reasonable expectation” that a lesser sentence “will adequately protect the public against the commission by the offender of murder or a serious personal injury offence” is a rational means to achieve the public protection objective of Part XXIV of the Criminal Code insofar as such detention is limited to habitual criminal who pose a tremendous risk to the public safety. A rigorous application of the designation criteria under s.753(1) ensures that the provision does not overreach by capturing offenders that should not face the risk of a sentence of indeterminate detention. [emphasis in the original]
100The Supreme Court has consistently affirmed that dangerous offender proceedings are sentencing proceedings and that, as with other sentencing proceedings, a sentencing judge at a dangerous offender hearing must apply the sentencing principles and mandatory guidelines outlined imposing indeterminate detention where the sentencing judge is not satisfied that there is a “reasonable expectation” that a lesser sentence “will adequately protect the public against the commission by the offender of murder or a serious personal injury offence” is a rational means to achieve the public protection objective of Part XXIV of the Criminal Code insofar as such detention is limited to habitual criminal who pose a tremendous risk to the public safety. A rigorous application of the designation criteria under s.753(1) ensures that the provision does not overreach by capturing offenders that should not face the risk of a sentence of indeterminate detention.
101In determining the length of sentence the hearing judge is not restricted to imposing a term of imprisonment that would be appropriate on conviction for the predicate offence in the absence of a dangerous offender designation. The hearing judge must take into account the statutory limits of the offence for which sentence is being imposed, the paramount purpose of public protection under Part XXIV and other applicable sentencing principles under ss. 718-718.2, which may justify a fixed term sentence lengthier than would be appropriate outside the dangerous offender context: R. v. Spilman, 2018 ONCA 551 at para. 34.
102The application of the legal principles that govern a dangerous offender application is not easy.
103In order to be designated dangerous, the Crown must prove beyond a reasonable doubt that the violent behavior is intractable. Then, at the sentencing stage, a fit sentence must be fashioned having regard in large part to the same criterion, that is whether there is a reasonable prospect of eventual control in the community. How is it possible to find proof beyond a reasonable doubt that the conduct is intractable and then go on to find, for the purposes of imposing sentence, that it is not sufficiently intractable as to warrant an indeterminate sentence? Yet, this is precisely what the legislation contemplates in an appropriate case.
104The case law makes clear that all of the evidence adduced at a dangerous offender hearing must be considered at both stages of the sentencing judge’s analysis, though for the purpose of making different findings related to different legal criteria. The same prospective evidence of treatability plays a different role at each stage. “At the designation stage, treatability informs the decision on the threat posed by an offender, whereas at the penalty stage, it helps determine the appropriate sentence to manage this threat”: Boutilier at para. 45.
The Appropriate Sentence
105The predicate offences are brutal and shocking. I have already reviewed the circumstances in which they were committed. Suffice to say that they have caused devastating and lasting physical, social and emotional harm to the victims. Further, they are part of a long-standing pattern of violent recidivism that started in Mr. Hemmings’ youth and has continued unabated. In the past he has been convicted of numerous crimes of violence including an earlier aggravated assault that involved stabbing a man, causing him to lose his spleen. He has attended a great deal of treatment and programming, including intensive anti-violence training. Yet to this day, he shows no real insight, empathy or remorse.
106During his interviews with Drs. Wilkie and Penney, Mr. Hemmings demonstrated “hostile misattribution bias”, meaning he maintains a distorted belief that others are disrespecting him or causing problems for him even in relation to interactions that are neutral. He denied being an angry person and stated “why can’t I defend myself?” This was a running theme throughout Dr. Wilkie’s report and was Mr. Hemmings’ claim in relation to the predicate offences. He continues to believe that violence is justified even in relation to relatively minor perceived slights.
107He has been diagnosed with an Anti-social Personality Disorder. He exhibits a high degree of psychopathic traits. He presents an extremely high risk of general and violent recidivism. His primary diagnoses cannot be treated, only managed. In addition, he has a substance use disorder. This is a complicating variable and one that Dr. Wilkie believes may have adversely impacted his ability to benefit from past anti-violence programming. As stated above, I do not find this represents more than a hope of eventual control in the community. However, there are external controls that can be put in place that may manage the risk to a sufficient degree that he may eventually be released into the community. There are at present a number of factors that remain unknown, such as the truthfulness of his assertion that he will meaningfully engage in treatment. This will only be revealed with the passage of time.
108In her treatment recommendations, Dr. Wilkie states:
Family members, friends, or partners, who are involved in his daily life, and show may be supports in his risk management plan, should be informed of his history and should be advised to contact police immediately if they have reason to believe that he is about to resume involvement in trafficking substances of criminal activity. (p. 73)
109However, given his lack of a prosocial network, the treatment suggestion is more hypothetical than real. Mr. Hemmings has not maintained contact with his family members since his most recent arrest and reportedly has no plans to make effort into repairing his familial relationships. He appears to have no support system outside of his peers in the criminal subculture.
110His poor response to community supervision and repeated failures to comply with the terms of release, probation or parole is discouraging. Mr. Hemmings’ extensive involvement in drug trafficking puts him in situations where the use of violence is more likely. His continued acceptance of negative, antisocial attitudes, including his acceptance of violence as an appropriate response to even minor perceived slights, despite past treatment is also concerning.
111However, he has been attending AA meetings for the past two years in custody and he did manage to complete his high school education in custody. That may reflect some ability to effect change.
112Dr. Wilkie described the management of Anti-social Personality Disorder to include therapy, counselling and the development of skills to alter behavior. As well, a pharmacological approach can be an option for management of Anti-social Personality Disorder. She also diagnosed him with substance use disorder (alcohol, cannabis, stimulant). She described the substance use disorder as being “in sustained remission in a controlled environment”. This conclusion is based upon Mr. Hemmings reporting to her that he has been sober since his arrest in September of 2018 and the absence of records inconsistent with this assertion.
113Mr. Hemmings requires intensive and personalized psychological and behavioural treatment prior to release which may take years to develop. Moreover, not only does this treatment need to continue after release, but Mr. Hemmings needs to be motivated to engage in this treatment both prior to his release and subsequent to it.
114Counsel for Mr. Hemmings points to the evidence of Ms. Do Rego that there is programming at the federal penitentiary that would provide intensive therapy for Mr. Hemmings. The program takes a holistic approach meant to target multiple risk factors. The intense therapy is followed by a maintenance program. This program is continued upon release of the offender. The Parole Board can release Mr. Hemmings to a community Correctional Centre. This would result in him being very closely monitored through his transition into the community. He can also be required to engage in other treatment outside of the maintenance program, that can be catered to meet risk factors identified by the Parole board. His abstinence can be closely monitored through urinalysis. I agree that these could be useful tools to manage the risk that Mr. Hemmings presents. It is for this reason that I do not impose an indeterminate sentence.
115For all of these reasons, I find that there needs to be a very lengthy penitentiary sentence to be followed by a long-term supervision order. The length of his sentence for the predicate offences will exceed that which would be considered fit outside of the context of a dangerous offender designation.
Conclusion on Sentence
116Mr. Hemmings is a dangerous offender. He will be sentenced to a total determinate sentence of 14 years (less pre-sentence custody) with a 10-year long-term supervision order pursuant to s. 753.1 of the Code. I further sentence Mr. Hemmings to:
- 3 years for being unlawfully in a dwelling house and for assault, concurrent to each other, and concurrent with the 14-year sentence;
- 30 days concurrent for possession of marijuana;
- 60 days concurrent for possessing marijuana for the purpose of trafficking;
- 90 days concurrent for possession of cocaine;
- 1 year concurrent for breaching the conditional sentence;
- 1 year on each of the two counts of possession of a weapon for dangerous purpose, consecutive to each other and concurrent to the total sentence.
117There will also be the following ancillary orders:
- a DNA order made pursuant to s. 487.051 of the Code;
- a s. 109 lifetime weapons prohibition; and,
- an order pursuant to s. 743.21 of the Code, that the offender shall have no contact with any of his victims while in custody.
Released: August 3, 2021 Signed: Justice Chapman
Footnotes:
1The Predicate offences in this case are the aggravated assault and assault with a weapon convictions. However, I am including in this review of the evidence the acts that gave rise to the further convictions for unlawfully in a dwelling and assault as they are closely connected to the predicate offences. I also found Mr. Hemmings guilty of weapons dangerous, possession of cocaine and marijuana, trafficking in marijuana and failure to comply with the terms of a conditional sentence.
2Or alternatively pursuant to subsection 753(1) (b) of the Code, that is dangerousness ensuing from sexual behavior, which has no application to the instant case.
3See for example footnote 1 of the Boutilier decision.
