R. v. Thongdara, 2025 ONCJ 489

CITATION: R. v. Thongdara, 2025 ONCJ 489

DATE: 2025·07·21

COURT FILE No.: 4814 998 22 4000 2363

ONTARIO COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

— AND —

THAVIPHANH THONGDARA

Before Justice David Porter

Heard on February 10, 11, 12, March 31 and June 13, 2025

Ruling on Dangerous Offender Application Released on July 21, 2025

D. DeSantis ……….………………………………………………………………………… for the Crown

S. Pennypacker ………………………………………………………………………… for the Defendant

Porter J:

OVERVIEW

1Mr. Thongdara is a 50 year old man who was born in Vientiane, Laos. On September 25, 2023, Mr. Thongdara plead guilty to the robbery of a convenience store on April 19, 2022, pursuant to s. 344 of the Criminal Code. The Crown has, pursuant to s.753 (1) of the Criminal Code, applied for a determination that Mr. Thongdara is a dangerous offender. The robbery which occurred on April 19, 2022 is the index offence in the Crown’s application. The Crown and defence agree that the robbery was a serious personal injury offence. The Crown relies on s.753 (1) (a) (i) and/or s.753 (1) (a) (ii) in support of this designation. The defence opposes this designation and submits that, in light of the substantial pre-sentence custody already served, a conditional sentence is appropriate.

2At the hearing of June 13, 2025, it was agreed with counsel that the court would first render its decision on the dangerous offender application, on July 21, 2025, and then hear further submissions on the sentence, in light of the court’s ruling on the dangerous offender application.

The Index Offence – The Convenience Store Robbery at Axness Convenience Store April 19, 2022

3On Tuesday, April 19, 2022 at approximately 6:50 a.m., Mr. Thongdara entered the convenience store, wearing a mask and gloves to conceal his identity. He entered the store posing as a customer. He selected a can of pop from the fridge and approached the counter and requested a pack of cigarettes. He then suddenly walked around the counter and attacked the store clerk. He punched the clerk, knocked him to the floor and kicked him numerous times as the clerk lay on the floor behind the counter. A security camera video was filed in evidence showing the brutal nature of the attack involving punching, and kicking of the clerk while he was on the floor.

4As the clerk lay on the floor behind the counter, Mr. Thongdara stole cash from the cash register in the store and fled. The clerk had tried to escape by climbing across the counter, shortly before Mr. Thongdara fled from the store. A quantity of cash was stolen from the store. The clerk suffered a swollen forehead, scratches and bruising to his cheek area, a left swollen left eye and the bridge of his nose was scraped and sore.

5Mr. Thongdara entered a plea of guilty to robbery, which is the index offence in relation to the Crown’s application to have Mr. Thongdara declared a dangerous offender.

Mr. Thongdara’s Criminal Record

6Mr. Thongdara’s Criminal Record is the following:

Date of conviction (yy/mm/dd)

Location of court

Offence[s] Sentence

1994-09-20 1. Assault (1) 1 day (1½ months presentence

custody)

1995-04-20 – Newmarket, ON 1-2 Robbery x2 (CPIC

incorrect)

3. Obstruct Peace Officer

(1-2) 6 months on each on count 1

and 2, consecutive (1 year presentence

custody)

Probation 18 months on each

charge

Firearms prohibition for 10

years

(3) 15 days consecutive and

probation 18 months

1995-04-21 – Toronto, ON 1. Assault (1) 45 days consecutive to

sentence serving

1996-01-19 – Newmarket, ON 1. Attempt obstruct justice (1) 6 weeks consecutive to

sentence serving

1998-11-09 – Toronto, ON 1. Escape lawful custody (1) 6 months

1999-04-14 – Toronto, ON 1. Attempted murder

2. Forcible confinement (6

charges)

3. Robbery (2 charges)

4. Assault with a weapon

5. Extortion

6. Use of a firearm during

commission of an

offence

(1) 14 years

(2-3) 4 years on each charge

concurrent

(4) 2 years concurrent

(5) 3 years consecutive

(6) 1 years consecutive

s.109 order for life

2019-10-03 – Brampton, ON 1. Possession of a schedule I substance

1. $100 fine

2024-02-09 – Toronto, ON 1. Assault (2 charges)

2. Fail to comply release

order

(1-2) 6 months on each concurrent

(3) 30 days concurrent

Probation 12 months

DNA

s.109 order for life

Dangerous Offender Regime

Purpose

7The overriding purpose of the dangerous offender legislation pursuant to Part XXIV of the Criminal Code of Canada (“Criminal Code”) is to protect society from habitual offenders who pose a risk of repeat violent behaviour: R. v. Jones, 1994 CanLII 85 (SCC), [1994] 2 S.C.R. 229, per Gonthier J., at para. 124.

8A dangerous offender application proceeds in two stages: the designation stage and the penalty stage. The designation stage is governed by s. 753 (1)>(a) of the Criminal Code which provides the 2 alternative bases for a finding that an accused is a dangerous offender on which the Crown relies in this case. They state:

“753 (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, ...”

9The onus rests with the Crown to prove that an offender meets the elements under s.753 (1) beyond a reasonable doubt. In R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at para. 26-27, the Supreme Court explained the criteria that the Crown must prove before a Court will designate the offender to be a dangerous offender:

“26 In Lyons, 1987 CanLII 25 (SCC), [1987] 2 SCR 309, Justice La Forest 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 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.]”

10The requirement of intractability is an essential requirement of a finding that the Crown has proven beyond a reasonable doubt that the accused is a dangerous offender. As the Court of Appeal recently noted in R. v. J.C., 2025 ONCA 331, at para.14:

“[14] Boutilier establishes that before designating a dangerous offender, a sentencing judge must be satisfied that the offender poses a high likelihood of harmful recidivism and that his or her conduct is “intractable”. The court defined intractable conduct as “behaviour that the offender is unable to surmount”: Boutilier, at para. 27. This requires the sentencing judge to conduct a prospective assessment of dangerousness, so that only offenders who pose a future risk are designated as dangerous and face the possibility of being sentenced to indeterminate detention.”

The Law on Intractability at the Designation Stage

11In R. v. Boutilier, supra, at paras. 35-36, Coté J. for the majority in the Supreme Court describes the prospective inquiry at the designation stage of a dangerous offender application as follows:

“Determining whether or not a high risk of recidivism and the 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”: Hatchwell v. The Queen, 1974 CanLII 203 (SCC), [1976] 1 S.C.R. 39, at p.43. For the court in Lyons, this prospective inquiry was critical to the constitutionality of the scheme. An entirely retrospective assessment could not ensure that indeterminate sentences were rationally connected to the objective of public safety going forward. Nor could it avoid catching offenders who had proved violent in the past but who presented no future threat.

The jurisprudence of this Court subsequent to Lyons has consistently considered a prospective assessment of risk to be a component of dangerous offender applications…”

12And at para. 37, Coté J., stated this inquiry involves the assessment of,

“A past pattern of violence is considered in the global assessment of an offender’s future behaviour, which, in turn, is considered by the court in determining whether the offender constitutes a “threat”.

13At para. 43, Coté J. described this assessment at the designation stage as follows:

“As the assessment of prospective risk described above is concerned with whether an offender will continue to be a “real and present danger”, being unable to surmount his or her violent conduct, the sentencing judge must consider all retrospective and prospective evidence relating to the continuing nature of this risk, including future treatment prospects.”

14In R. v. Broadfoot, 2018 ONCJ 215, Justice Greene noted at para.77:

77“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.”

15Justice Greene’s conclusion on the meanings of “intractability” at the designation stage and the penalty stage has been adopted by Justice Rutherford in R. v. B.H., 2018 ONCJ 497, at para. 97, Justice Kelly in R. v. Windebank, 2023 ONSC 4809 at para. 124, and by Justice Corrick in R. v. Inacio, 2018 ONSC 6617, at para.172. I agree with this interpretation of the meaning of intractability at the designation stage.

The Sentencing of Dangerous Offenders

16Following this determination, the “penalty stage” requires a Court to determine the appropriate sentence and is governed by sections 753 (4) and (4.1). Section 753 (4) gives a sentencing judge three options:

(a) impose a sentence of detention in a penitentiary for an indeterminate period;

(b) impose a sentence for the offence for which the offender has been convicted – which must be a minimum punishment of imprisonment for a term of two years – and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or of detention in a penitentiary for an indeterminate period;

(c) impose a sentence for the offence for which the offender has been convicted.

17Pursuant to s. 753 (4.1), if a judge finds that a person is a dangerous offender, the judge shall impose an indeterminate sentence unless the judge is satisfied that there is a reasonable expectation that a lesser sentence (under s.753(4)(b) or (c) ) will adequately protect the public against the commission of murder or a serious personal injury offence by the offender.

18In R. v. Boutilier, supra at para. 70, Coté J. for the majority articulates the proper analytical approach in determining the sentence of an offender designated as a dangerous offender under s.753(4.1):

“[70] The framework a sentencing judge should adopt in exercising his or her discretion under s. 753(4.1) has been aptly explained by Justice Tuck-Jackson of the Ontario Court of Justice: R. v. Crowe, No. 10-10013990, March 22, 2017. First, if the court is satisfied that a conventional sentence, which may include a period of probation, if available in law, will adequately protect the public against the commission of murder or a serious personal injury offence, then that sentence must be imposed. If the court is not satisfied that this is the case, then it must proceed to a second assessment and determine whether it is satisfied that a conventional sentence of a minimum of 2 years of imprisonment, followed by a long-term supervision order for a period that does not exceed 10 years, will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. If the answer is “yes”, then that sentence must be imposed. If the answer is “no”, then the court must proceed to the third step and impose a detention in a penitentiary for an indeterminate period of time. Section 753(4.1) reflects the fact that, just as nothing less than a sentence reducing the risk to an acceptable level is required for a dangerous offender, so too is nothing more required.”

The Long-Term Offender Regime

19Section 753(5)>(a) of the Criminal Code allows a court, where it does not find the offender to be a dangerous offender, to treat the application as an application to designate the offender a long-term offender.

20Unlike the dangerous offender designation, there is no requirement that the court find that the accused’s conduct is intractable before making a long-term offender designation: R. v. Broadfoot, 2018 ONCJ 215, at para. 94; R. v. J.C., supra, at paras. 24 and 39 (Ont. C.A.)

21The criteria for a long-term offender designation is set out in s. 753.1(1):

“753.1 (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that

(a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;

(b) there is a substantial risk that the offender will reoffend; and

(c) there is a reasonable possibility of eventual control of the risk in the community.”

A Comparison of the Dangerous Offender & Long-Term Offender Provisions

22As outlined by the Supreme Court of Canada in R. v. Sipos, 2014 SCC 47,at para 19, the dangerous offender and long-term offender provisions are preventive sanctions that impose special measures on an offender to address their elevated risk of future offending. In R. v. Boutilier, supra, at para.75, the Supreme Court characterized the dangerous offender designation criteria as “more onerous” than those under the long-term offender criteria.

“In particular, under s. 753(1), the sentencing judge must be satisfied that “the offender constitutes a threat to the life, safety or physical or mental well-being of other persons”, whereas under s. 753.1, the sentencing judge must merely be satisfied that “there is a substantial risk that the offender will reoffend”. As explained above, when read properly, s. 753(1) limits the availability of an indeterminate detention under s. 753(4) and (4.1) to a narrow group of offenders that are dangerous per se. It therefore cannot be said that both regimes target the same offenders.”

23As outlined in R. v. Sipos, supra, at para. 19:

“A dangerous offender may be sentenced to an indeterminate sentence of imprisonment; this is preventive detention in its clearest and most extreme form. A long-term offender may be sentenced for the underlying offence and, in addition, to a long-term supervision order not to exceed 10 years. This is a preventive sanction that is finite in length and built on supervision in the community.”

24To make a long-term offender designation, the court must be satisfied that it would be appropriate to impose a sentence of imprisonment of at least two years for the offence for which the offender has been convicted, that there is a substantial risk that the offender will reoffend, and that there is a reasonable possibility of eventual control of the risk in the community: s. 753.1(1).

25Section 753.1(3) establishes a minimum sentence of 2 years for a long-term offender, from which pre-sentence custody can be deducted: R. v. Hall (M.G.), 2004 CanLII 14199 (Ont. C.A.)

26In R. v. Hall, supra, the Court of Appeal stated at paras. 61-62 with respect to the requirement of a minimum 2 year sentence for a long term offender:

“61] The respondent was in custody for almost 30 months prior to sentencing. Following the usual practice, the trial judge gave the respondent two for one credit for his pre-sentence custody. On this basis, the respondent had served the equivalent of four years and ten months. The trial judge concluded that no additional period of incarceration was necessary.

62I accept that given the long period of pre-sentence custody, it would not have been appropriate to impose a further period of incarceration in excess of two years. This does not, however, mean that a long-term offender designation could not have been made. Pre-trial incarceration may be taken into account where a statute imposes a minimum penalty: R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, 143 C.C.C. (3d) 129; R. v. McDonald (1998), 1998 CanLII 13327 (ON CA), 127 C.C.C. (3d) 57, 40 O.R. (3d) 641 (C.A.). The same reasoning applies to the requirement in the long-term offender provisions that the court impose a sentence of at least two years. Having regard to pre-sentence incarceration in calculating the length of the sentence imposed for the purposes of the long-term offender provisions upholds Parliament's intention that the long-term offender status should be available only for persons who commit offences that warrant sentences of two years or more, and at the same time preserves the court's discretion under s. 719(3) of the Criminal Code to take into account pre-sentence incarceration: R. v. Wust, supra, at pp. 462-63 S.C.R., p. 136 C.C.C. If the sentence imposed by a trial judge, having regard to the credit that the trial judge gives for pre-sentence incarceration, is the equivalent of a sentence of two years or more, the first pre- condition to the finding that an offender is a long-term offender is met.”

27At the sentencing stage, where the court finds an offender to be a long-term offender, as is the case with dangerous offenders, the paramount principle in sentencing a long-term offender is the protection of the public: R. v. Boutilier, supra, at paras. 54 and 56. Public protection is the general purpose of Part XXIV of the Criminal Code, in which the long term offender provisions are found: R. v. Boutilier, supra, at para.56.

Crown Position

28The Crown has, pursuant to s.753 (1) of the Criminal Code, applied for a determination that Mr. Thongdara is a dangerous offender. The Crown submits that Mr. Thongdara meets the criteria for a dangerous offender designation pursuant to s.753 (1) (a) (i) and/or s.753 (1) (a) (ii). Under either of these sections, the Crown submits that this Court should be satisfied that Mr. Thongdara constitutes a threat to the life, safety or physical or mental well-being of others. The Crown also submits that Mr. Thongdara presents a substantial risk of future harmful recidivism through the sustained intractability of his conduct. As a result, the Crown submits that Mr. Thongdara should be declared a dangerous offender and sentenced to an indeterminate sentence, pursuant to s.753 (4) (a).

Defence Position

29Defence counsel opposes the application and submits that the Crown has not proven beyond a reasonable doubt that Mr. Thongdara is a dangerous offender. The defence submits that the evidence does not establish that Mr. Thongdara “constitutes a threat to the life safety or physical or mental well-being of other persons” required under both 753(1)(a) (i) or (ii) for a finding that Mr. Thongdara is a dangerous offender. The defence submits that the evidence does not support a finding under either s.753(1)(a)(i) or s.753(1)(a)(ii).

30The defence submits that while Mr. Thongdara may have a history of violence, there is no pattern of repetitive behaviour as required for a finding under s.753(1)(a)(i).

31The defence submits that the evidence does not establish to the requisite standard that there is a likelihood of causing death or injury to other persons through a failure to restrain his behaviour in the future as required under s.753(1)(a)(i).

32Furthermore, the defence submits that the evidence does not demonstrate that Mr. Thongdara has shown “a pattern of persistent aggressive behaviour” that demonstrates “a substantial degree of indifference” in regards to “consequences to other persons” as required for a finding that Mr. Thongdara is a dangerous offender under s.753(1)(a)(ii).

33As Mr. Thongdara has served 986 real days of pre-sentence custody and 986 x 1.5 = 1,478 days of enhanced credit to July 21, 2025, the defence submits that a carefully crafted conditional sentence of 2 years less a day is appropriate.

The Law: s 753.1 (a)(i)

34Section 753 (1) (a) (i) reads as follows:

753 (1) … 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,

35In R. v. Wong, 2023 ONCA 118, the Court of Appeal has recently reviewed the requirement in s.753(1)(a)(i) of a “pattern of repetitive behaviour”.

36The Court stated at paras. 36 and 37:

“For the purposes of s. 753(1)(a)(i), a pattern of repetitive behaviour is a pattern that contains “enough of the same elements of unrestrained dangerous conduct to be able to predict that the offender will likely offend in the same way in the future. … However, the offences need not be the same in every detail; that would unduly restrain the application of the section”: R. v. Hogg, 2011 ONCA 840, 287 O.A.C. 82, at para. 40; R. v. Szostak, 2014 ONCA 15, 118 O.R. (3d) 401, at para. 56. “Differences in the details of the offences will not be relevant if the predicate and past offences represent [as s. 753(1)(a)(i) requires] ‘a pattern of repetitive behaviour by the offender … 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’”: R. v. Brissard, 2017 ONCA 891, 356 C.C.C. (3d) 494, at para. 57.

In R. v. Gibson, 2021 ONCA 530, 157 O.R. (3d) 597, at para. 228, this court emphasized that the requirement for a pattern refers to a pattern of behaviour and not a pattern of offences:

The statutory requirements demand proof of a pattern of behaviour, not a pattern of offences or convictions. In its ordinary, everyday sense, a pattern refers to an arrangement or order discernible in, among other things, objects, actions or ideas. As used in s. 753(1), a pattern refers to actions, not thoughts. The required pattern is based not solely on the number of offences, but also on the elements of similarity in the offender’s behaviour. [Emphasis added.]”

37The Court noted further at para. 45:

“In R. v. Neve, 1999 ABCA 206, 71 Alta. L.R. (3d) 92, which is often cited for its comprehensive review of the requirements for designation of a dangerous offender, and which the sentencing judge relied on in this case, the Court of Appeal for Alberta explained the types of behaviour that could form part of a pattern having regard to the definition of “serious personal injury offence”:

“Does all criminal behaviour form part of the pattern? In our view, it does not. We read s.753(a) as requiring that the court be satisfied on two points: (a) that the predicate offence is part of a pattern of behaviour which has involved violent, aggressive or brutal conduct; and (b) that it is likely that this pattern of conduct will continue and will lead to conduct endangering the life, safety or physical well-being of others: see Lyons, supra. Since a predicate offence under s.753(a) must be a “serious personal injury offence” (meaning that it itself must meet either a violence or endangerment requirement under s.752(a)), it follows logically that the past behaviour must also have involved some degree of violence or attempted violence or endangerment or likely endangerment (whether more or less serious than the predicate offence). Otherwise, the predicate offence would not be part of that pattern. [Emphasis added.]”

38In determining whether a pattern of repetitive behaviour has been established, the entire circumstances of the behaviour must be considered. The number of incidents is not determinative. As Watt J.A. stated in R. v. Gibson, 2021 ONCA 530 at paras. 223-224:

“[223] It is uncontroversial that two incidents may constitute a pattern, provided they disclose a sufficient degree of similarity: R. v. Hogg, 2011 ONCA 840, 287 O.A.C. 82, at paras. 40, 43; R. v. Byers, 2017 ONCA 639, at paras. 20-23.

224The pattern requirement in ss. 753(1)(a)(i) and (b) is not based exclusively on the number of offences. It is also rooted in the elements of similarity in the offender’s behaviour: R. v. Langevin (1984), 1984 CanLII 1914 (ON CA), 11 C.C.C. (3d) 336 (Ont. C.A.), at pp. 348-49. See also R. v. Knife, 2015 SKCA 82, 460 Sask. R. 287, at para. 67, leave to appeal refused, [2015] S.C.C.A. No. 382.”

The Law: s. 753(1)(a)(ii)-Alternative Basis for Designation as a Dangerous Offender

39Section 753 (1) states 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

(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.”

40In R. v. Smith, 2023 ONCA 575, the Court considered the meaning of “persistent aggressive behaviour” in s. 753(1)(a)(ii) and stated at para. 28:

“[28] Authors Gary Botting, Vincent LaRochelle and Alison Yule in Dangerous Offender Law (Toronto: LexisNexis Canada, 2021), at p. 27, describe “persistence” as “subsistence through a long period of time, a concept quite different from the notion of repetition. While a repetitive pattern of harmful conduct is the main predictive element of paragraph 753(1)(a)(i), the main predictive element of paragraph (ii) is the offender’s indifference to future harm to others arising from their conduct.”

41The test under s. 753 (1)(a)(ii) “does not depend on the similarities among the predicate offences”: R. v. C.W., 2019 ONCA 976, at para.28.

42The Court in R. v. Smith, supra, summarized the requirements of s.753(1)(a)(ii) as follows at para. 37:

“[37] As the above cases demonstrate, the fact that there is a gap between offences is not determinative provided: (i) there is a pattern of behaviour (ii) involving persistent acts of aggression causing serious harm and demonstrating a substantial degree of indifference to the consequences of the offender’s actions that (iii) creates a serious risk of ongoing harm to the public: see Williams (ONSC), at para. 287; Brown, at para. 55; and Robinson, at para. 122. See also R. v. C.W., 2019 ONCA 976, at para. 28; Neve, at para. 108; R. v. Tynes, 2022 ONCA 866, 165 O.R. (3d) 321, at para. 70.”

43In the requirements of s.753 (1)(a)(ii) “substantial degree of indifference” means a “disregard, lack of sympathy or empathy, callousness and coldness, and lack of concern or sensitivity”: R. v. Williams, 2018 ONSC 2030, per Hill J. at para. 252.

44The proper approach to determining if the criteria required by s.753 (1)(a)(ii) have been proven beyond a reasonable doubt is summarized by McWatt J.in R. v. Wong, 2016 ONSC 6362 at para. 224, (affirmed at 2023 ONCA 118 at para. 53):

“[224] In examining whether Mr. Wong’s conduct demonstrates indifference, his attitude must be examined more generally. A demonstration of indifference which is limited to the time at which the offence was committed is not sufficient. A broader examination of the offender’s personality is required in order to determine if the offender lacks compassion towards others. The Crown must demonstrate that the offender has a conscious, but uncaring awareness of causing harm to others and that this has occurred over a long period, involving frequent acts with significant consequences. Expert evidence can be drawn upon in deciding whether the previous acts of aggressive conduct demonstrate the requisite indifference (R. v. George (1998), 1998 CanLII 5691 (BC CA), 126 C.C.C. (3d) 384 (B.C.C.A.) at para. 23; R. v. Robinson, supra at para. 123; R. v. Vanderwal, 2010 ONSC 265, [2010] O.J. No. 246 (Ont. S.C.).”

45As previously noted, a pre-condition to a finding that an accused is a dangerous offender under either of the definitions in s. 753 is proof beyond a reasonable doubt that the accused’s offending conduct is intractable.

The Evidence of Expert Witness Dr. Alina Iosif

46Dr. Alina Iosif, a forensic psychiatrist at CAMH, was called as one of the Crown’s witnesses at the hearing. Dr. Iosif prepared a psychiatric assessment under Section 752.1 of the Criminal Code to assist the Court to determine whether Mr. Thongdara is a dangerous offender. To do so, Dr. Iosif interviewed Mr. Thongdara for a total interview time of 7 hours.

47She reviewed extensive materials concerning Mr. Thongdara’s background and history, summarized in a comprehensive 40-page report admitted in evidence.

48The following is a summary of her findings:

• Mr. Thongdara meets the criteria for Personality Disorder Not Otherwise Specified, Gambling Disorder and Polysubstance Use Disorder (opiates and alcohol, in partial remission in a controlled setting)

• Mr. Thongdara demonstrates a high risk of violent recidivism.

49Dr. Iosif concludes at p. 37 of her report:

“Mr. Thongdara has incurred convictions for violent and non-violent offences. According to the risk assessment above, Mr. Thongdara’s likelihood for future violent recidivism falls in the high risk category, in other words he evidences a substantial likelihood of re-offense.

Mr. Thongdara has led a criminal lifestyle since adolescence. His lack of remorse and empathy for victims have been commented upon repeatedly in his file information. His accelerating substance use habits over time have also impacted his history of violence. In the four years between living in a halfway house after a lengthy federal sentence and his re-incarceration in 2022, Mr. Thongdara accumulated three sets of charges, two of which (including the index offence) were violent in nature. His employer, Mr. Khan offered him a work position away from the city to avoid temptation, but Mr. Thongdara left in 2021 under false pretext and resumed drug use. While fully aware and accepting of the negative impact of substances on his behaviour, Mr. Thongdara used drugs copiously; he was again violent, and he was re-incarcerated. After he was arrested for the index offences, and released on bail, Mr. Thongdara incurred further charges of assault, also while intoxicated, in July 2022. In such circumstances, Mr. Thongdara clearly showed indifference to the foreseeable consequences of his behaviour.”

50In summary, Dr. Iosif’s opinion supports a finding that the requirements of s.753(1)(a)(ii) are met by the record in this case (Dr. Iosif Testimony, February 11, 2025, at p.115).

51At p. 38 of her report, Dr. Iosif makes the following recommendation concerning Mr. Thongdara’s risk management:

“Given Mr. Thongdara’s high risk of violent offending, he needs a high level of intervention and significant resources to decrease that risk. His needs should be directed towards assisting with abstinence from substances, and therapies which focus on antisocial traits. He should also have a high level of consistent support and external supervision, and assistance in engagement in meaningful activities including employment. It is recommended that Mr. Thongdara complete the indicated programming in a federal institution prior to being released in the community.”

Mr. Thongdara – Background:

52Mr. Thongdara is a 50-year-old man who was born in Vientiane, Laos on April 10, 1975. He emigrated to Canada when he was 16 years old in 1991 and is currently a Permanent Resident.

Childhood

53Mr. Thongdara had a difficult childhood. His father was incarcerated for approximately six years and his family suffered financially. Due to his father’s incarceration and financial hardships, Mr. Thongdara was unable to attend school in Laos and was forced to work at a young age. Following his father’s release from prison, Mr. Thongdara and his family moved to a Thailand refugee camp where they experienced violence. At the age of 16, Mr. Thongdara immigrated to Canada. Despite his limited schooling and English language skills, he was enrolled in grade 9 and pursued six subjects. Mr. Thongdara was subsequently expelled in grade 10 and recalled skipping class and being involved in fights. Mr. Thongdara characterized himself as a “bad boy” who had “a lot of problems” growing up. Following his first incarceration in 1994, he moved out of his parent’s home at the age of 18. While incarcerated, Mr. Thongdara successfully completed his high school education and was a good student.

Adult Life

54Before his arrest for the index offence, Mr. Thongdara was living in Toronto with his wife, Lily Khampath Chaytha whom he married in 2021. Mr. Thongdara hopes to continue their relationship following his release and considers her to be a source of support. However, Dr. Iosif stated that Ms. Chaytha does not share this same desire and does not wish to maintain a romantic relationship with Mr. Thongdara.

55Apart from Ms. Chaytha, Mr. Thongdara has limited familial supports as his father is deceased and his mother and brother currently reside in a nursing home. Ms. Chaytha’s unwillingness to maintain a relationship with Mr. Thongdara, alongside his family history, led Dr. Iosif to conclude that he has few protective factors.

56As part of her report, Dr. Iosif interviewed Michael Khan, who employed Mr. Thongdara on his farm for approximately one year in 2022. He indicated that so long as Mr. Thongdara stayed away from fentanyl he did well. After working for Mr. Khan on his farm Mr. Thongdara returned to Toronto to help his mother, and when Mr. Khan saw Mr. Thongdara in Toronto he noticed his intoxication, likely from opiates, rendered him incoherent and not functional. (Dr. Iosif, Report, p.17).

57Dr. Iosif testified that Mr. Thongdara suffered from a long history of substance abuse starting with cannabis at age 20, and heroin and crack cocaine, both prior to 1998 and then at the age of 25 while incarcerated, (Dr. Iosif, Testimony, February 10, 2025 pp. 22-25). Mr. Thongdara acknowledged in May 1994 that he had used crack cocaine (Dr. Iosif, Testimony, February 10, 2025 p. 59) (TEDC Medical Records, Vol. 3, Tab 10, p. 465). After his release from the lengthy prison sentence in 2017, he continued to use crack cocaine, and in 2022 committed an assault at the Woodbine casino while high on fentanyl.

Employment History

58Dr. Iosif testified that Mr. Thongdara has consistently demonstrated a “fair interest in work” and has been positively described by his employers, a “protective” factor moving forward. While incarcerated, Mr. Thongdara worked as a cook and in a workshop. Following his release, Mr. Thongdara was employed on a farm by Michael Khan who spoke highly of Mr. Thongdara and emphasized that he was sober for a year and doing well during this period. He described him as a man of good character, whose addictions had taken over his life and resulted in his criminal behaviour. Dr. Iosif indicated that Mr. Khan was a kind, positive and instrumental support who helped promote his sobriety and curb his gambling addiction. They maintained a relationship while he was incarcerated, and Mr. Khan is willing to support Mr. Thongdara upon his release.

Criminal Record

59Mr. Thongdara’s criminal record is as follows:

• 1994-09-20 – Toronto – Assault

• 1995-04-20 – Newmarket: Robbery x2, Obstruct Peace Officer

• 1995-04-21 – Toronto: Assault

• 1996-01-19 – Newmarket: Attempt obstruct justice

• 1998-11-09 – Toronto: Escape lawful custody

• 1999-04-14 – Toronto: Attempted murder, Forcible confinement x6, Robbery (2 charges), Assault with a weapon, Extortion, Use of a firearm during commission of an offence

• 2019-10-03 – Brampton: Possession of a schedule I substance

• 2024-02-09 – Toronto Assault (2 charges)

Chronological Review of Mr. Thongdara’s Criminal Convictions, Psychological Assessments and Institutional History From 1994-2024.

1994-09-20 – Toronto – Assault (Application Record, Vol. 1, Tab 2)

60On February 19, 1994, the complainants made disparaging comments about Mr. Thongdara’s girlfriend at a community centre. This lead to an altercation in which Mr. Thongdara was beaten up by a group of people.

61The next day he went to the residence of one of the persons responsible for beating him up the night before, accompanied by friends to ensure he was not outnumbered as he had been the night before when he was beaten up. Mr. Thongdara approached the victim, took out a plastic imitation handgun and struck the victim behind the ear, causing a gash. Mr. Thongdara and his friends fled the scene.

62Dr. Iosif noted the significance of Mr. Thongdara seeking revenge in committing this assault, as consistent with anti-social behaviour, and not just an impulsive reaction. (Dr. Iosif, Transcript, February 10, p. 46)

1995-04-20 – Newmarket: Robbery x2, Obstruct Peace Officer, Application Record, Vol 1, Tabs 3 and 4)

63Mr. Thongdara was convicted of robbing 2 convenience stores in Newmarket while armed with a knife.

64On Sunday, May 1, 1994, at 12:30 a.m., Mr. Thongdara attended a convenience store, bought milk and walked out without paying. A little later, when the store clerk was alone, Mr. Thongdara re-entered the store, pulled out a small brown-handled knife and proceeded to rob the store.

65The same night, about 5½ hours earlier, Mr. Thongdara robbed another convenience store in Newmarket by jumping over the counter and telling the female store clerk to get money while holding a small folding knife in his hand. She opened the till and gave him money and he left. Mr. Thongdara was arrested the next day in possession of a sum of money. When he was arrested, he falsely identified himself to the police. Justice Taliano noted in his sentencing reasons that Mr. Thongdara “was not so inebriated, or under the influence of drugs, to suggest that his judgement was distorted and it propelled him into uncharacteristic behaviour”: Application Record, Vol. 1, Sentencing Reasons, April 20, 1995, Tab 4, at p. 4

66The nature of these violent offences is very similar to the index offence committed April 19, 2022.

67Dr. Iosif noted in her testimony on February 10 at p. 46:

“This has been a bit of a theme in Mr. Thongdara’s history, that he needs money, whether it is because he’s not employed or because he has debts from gambling or he wants it to support his drug habit, and that he robs convenience stores because they are, well, convenient and that leads to criminal offences. He is very matter of fact about it…..”

68In the pre-sentence report dated April 20, 1995 in relation to the convictions for robbery, and possession of a dangerous weapon, in Newmarket, it is noted that Mr. Thongdara’s mother reported that she and her children were victims of physical abuse perpetrated by Mr. Thongdara’s father. Before coming to Canada from Thailand, Mr. Thongdara lived in a refugee camp where “in order to survive he had to resort to violence”.

69The author notes that this violence and his exposure to physical abuse in his childhood may have resulted in violence having become a “learned behaviour” for him.

70In 1993, Mr. Thongdara’s girlfriend became pregnant, and as a result of his incarceration for the robbery offences, she left him. He has never met the child.

71The presentence report author noted that Mr. Thongdara had been held in custody since May 2, 1994. The author notes that while he was incarcerated he was involved in a number of violent fights with other inmates and at least one incident involved the attack on a correctional officer. He was usually identified as the aggressor and he was noted to be “violent and aggressive towards inmates and staff” by a Security Captain at the Toronto Jail.

72The Health Care Co-Ordinator at the Toronto Jail Reported that Mr. Thongdara had been diagnosed with an “anti-social disorder with borderline structure” (Pre-Sentence Report, April 20, 1995, Application Record, Vol. 2, Tab 2.)

73In his reasons for sentence dated April 4, 1995, Taliano J. concluded that Mr. Thongdara had lied to the police, lied under oath at a preliminary inquiry of an accomplice, and lied to the probation officer (Application Record, Vol. 1, Tab 4, p. 6). He noted that the robberies were committed after Mr. Thongdara cased out each store and occurred when the victims were most vulnerable.

1995-04-21 – Toronto: Assault (Application Record, Vol. 1, Tab 5, Transcript of Guilty Plea, April 21, 1995)

74This assault arises from an event at the Toronto East Detention Centre on December 24, 1994 where Mr. Thondgara and the co- accused were inmates. They refused to hand out their dishes from their cell to correctional workers as a protest for the fact that they had been denied access to the telephone.

75The correctional officers entered Mr. Thongdara’s cell to collect the dishes. Mr. Thongdara punched one of the correctional officers and yelled at him. The second correctional officer left to get assistance, and Mr. Thongdara then proceeded to lunge at the correctional officer he had punched, kicking him in the face and body resulting in injuries. The officer had scrapes and bruises and missed work for 2 weeks due to his injuries.

76In Dr. Iosif’s report she noted that Mr. Thongdara stated that he got involved in defending his cell mate who was being assaulted by correctional officers. Dr. Iosif stated that “I think that Mr. Thongdara tends to minimize many aspects of his criminal history and I think that his feeling of self-righteousness and potentially dominance comes into play when he engages in violent behaviour.” (Iosif, Transcript, February 10, at pp. 46-47).

77Mr. Thongdara was sentenced to 45 days in jail consecutive to the Newmarket robberies for which he had been sentenced the day before. (App. Record, Vol. 1, Transcript, Tab 5, p. 5)

1996-01-19 – Newmarket: Attempt Obstruct Justice (Application Record Vol. 1, Tab 6, Transcript dated January 19, 1996)

[78] On January 27, 1995, Mr. Thongdara was sworn to give evidence as a Crown witness in a preliminary inquiry against an accomplice in robberies for which he had been charged in January and May of 1994. Mr. Thongdara denied any knowledge of the robberies and stated that he had never been in the area. Mr. Thongdara subsequently admitted that this testimony at the preliminary inquiry was false. On January 19, 1996, he plead guilty to willfully attempting to obstruct justice in a judicial proceedings by making false statements under oath, contrary to s.131(2) Criminal Code.

79Dr. Iosif noted at p.47 of her testimony on February 10 that Mr. Thongdara said in the assessment that he doesn’t “rat people out”. She noted that “it speaks to the degree to which Mr. Thongdara would rather protect his reputation than cooperate with authorities.”

80At his sentencing hearing, it was acknowledged by the Crown that Mr. Thongdara later testified truthfully against his accomplice at the accomplice’s trial for the robberies. (Application Record, Vol. 1, Tab 6, Transcript at p.10).

Report of Social Worker John Sampson to the Ontario Parole Board dated August 9, 1995, (Application Record, Vol. 2, Tab 2)

81In this report to the Ontario Parole Board on August 9, 1995, Social Worker John Sampson notes that Mr. Thongdara had attended the Human Relations program at Maplehurst since the end of May 1995, and that he found it helpful. His school reports document that Mr. Thongdara was studying mathematics and mechanics and getting good grades. Mr. Thongdara acknowledged to the author that he has difficulty controlling his anger when he is upset. The author recommended anger management counselling which had been unavailable to Mr. Thongdara at Maplehurst, otherwise he is at risk of re-offence. He noted that Mr. Thongdara accepted responsibility for his robbery offences and expressed “some empathy” for the victims. (Report, at p.4).

Report From Dr Robert Linden To Probation and Parole September 11,1996(Application Record, Vol 2, Tab 3)

82A September 11, 1996 letter from Roberta Linden, a psychologist, to probation and parole reported on an assessment/counselling session with Mr. Thongdara done on August 14, 1996.

83Dr. Linden indicated that Mr. Thongdara lived with his mother, sister and brother, but not with his father. His brother and father both had criminal records. Dr. Linden opined that Mr. Tongdara “expressed no remorse for violent behaviour and showed little empathy for the victims”. Dr. Linden writes “Mr. Thongdara can be charming, manipulative, and very dangerous... I fear that this young man is at great risk of reoffending and is a danger to the community.”

Report of Dr. Percy Wright Sept 17, 1998 (Application Record, Vol. 1, Tab 4)

84A September 17, 1998 Psychological Report of Dr. Percy Wright, conducted over 3 days in September 1998, was prepared in relation to a possible prior dangerous offender application in relation to Mr. Thongdara after his conviction for attempted murder, forcible confinement, extortion and robbery.

85It is noted that Mr. Thongdara is involved in martial arts and learned to fight, especially in Thailand. He expressed a belief that he was protected by a spirit and would not die as long as he could scratch himself with a match and not bleed.

86His account of the index offences was severely at odds with the reports of other witnesses. Dr Wright found Mr. Thongdara to be a “less than credible historian”. He was described as having a tendency to exploit others and to have poor behavioural controls.

87He concluded that Mr. Thongdara presents with a “willingness to resort to violence, a lack of commitment to any vocational track, a reliance on very primitive deception in relating to others, limited depth and empathy within his relationships combined with a lack of desire to change.” He found that Mr. Thongdara’s presentation was in keeping with antisocial personality disorder “but this requires a history of conduct disorder which cannot be proven.” He concluded that Mr. Thongdara’s magical thinking regarding being protected by a spirit was likely a culturally accepted belief which contributed to his poor judgement and a sense of omnipotence.

1998-11-09 – Toronto: Escape lawful custody (Application Record, Vol. 1, Tab 13)

88On Friday, June 26, 1998, Mr. Thongdara appeared in court for a bail hearing and was required to wear leg irons due to his security risk. He was led back to the cell area after being ordered to be kept in custody. At that time, the court officers removed his leg irons in the process of putting him back in the cell and Mr. Thongdara escaped by running back to the bail court. He jumped over the prisoner’s dock in an attempt to run out of court to free himself. The court officers gave chase and were able to grab onto his feet as he was hopping over the prisoner’s dock. Mr. Thongdara lost his balance and fell on top the court officer.

89Mr. Thongdara indicated to Dr. Iosif that when he committed this offence he was young, addicted to heroin, suffering from withdrawal and that he wanted to go to Toronto to see his girlfriend. (Iosif Transcript, Feb 10, p. 47). Dr. Iosif noted in this offence the element of drugs, being impulsive, and disrespectful of authority. (Transcript, February 10, pp. 47-48).

1999-04-14 – Attempted Murder, Forcible Confinement x6, Robbery (2 charges), Assault with a weapon, Extortion, Use of Firearm During commission of an Offence (Application Record, Vol 1, Tab 15)

90The most serious offences occurred in 1996 which resulted in his 18-year incarceration. Mr. Thongdara was convicted of attempted murder; six counts of forcible confinement; two counts of robbery; extortion; aggravated assault; assault with a weapon; assault causing bodily harm; use of a prohibited weapon; and pointing a firearm.

91The trial judge, Jennings J. found that on August 29, 1996, Mr. Thongdara led a gang of 10-15 youths into a karaoke bar. Shortly after, the doors of the premises were locked, while customers and staff were ordered out of the establishment, and two were robbed. The owner of the karaoke bar was threatened that the bar would be burned down, and that he would be killed, if he did not provide money. One of the gang members was dispatched to get gasoline to assist in the threatened burning. The owner’s son was beaten. Jennings J. found that Mr. Thongdara was the leader of the group and directed its operations in the restaurant.

92A friend of the owner’s son went into the bar and witnessed his friend being attacked. Shortly after, Mr. Thongdara broke open a sawed-off shotgun, extracted cartridges, loaded the chamber, closed the breach, raised the gun, and deliberately fired a barrel into the owner’s neck and shoulder. This was done in a calm and collected manner while the individual posed no threat to Mr. Thongdara.

93Jennings J. noted from the medical evidence that the victim was very fortunate to have survived the shooting. Dr. Iosif’s report notes that Mr. Thongdara indicated that this event “turned my life upside down”. Dr. Iosif noted that Mr. Thongdara continues to deny his responsibility and at the time of sentencing, Justice Jennings stated that “he has shown absolutely no remorse.”

94With respect to this offence, Dr. Iosif notes that Mr. Thongdara was asserting his dominance. She states at p. 48 in her evidence on February 10:

“He says within his circle he has access to firearms, illegal access to firearms. He is interested in antisocial behaviours, specifically he wants to rob people who are alleged to engage in illegal gambling and have a lot of cash on the premises, so these are all elements that speak to a lifestyle that is consistent with somebody who is inclined to criminal behaviour and antisocial personality.”

95Dr. Peter Klassen did a psychiatric assessment in a report dated Sept 18, 1998 for possible use in a dangerous offender application before Jennings J. in relation to the attempted murder conviction. Jennings J. had Dr. Klassen’s report, and a report from Dr. Gojer, in the sentencing hearing. In the assessment by Dr Klassen, Mr. Thongdara denied that he was the person who fired the gun at the victim which resulted in his conviction for attempted murder. He had been found by Justice Jennings as providing testimony which was described as evasive and incredible.

96In that assessment, Mr. Thongdara indicated that he had previously engaged in robberies resulting from cocaine use and gambling, and that he was addicted to horseracing.

97Dr. Klassen concluded that Mr. Thongdara likely suffered from antisocial personality disorder and possibly from substance use disorder. He noted that no treatment has been shown to be effective for antisocial personality disorder or psychopathy except external control. He concluded that Mr. Thongdara was unable to restrain his behaviour in the future and had shown a substantial degree of indifference regarding foreseeable consequences. (Application Record, Vol 2, Tab 5, at p.22).

98Dr. Iosif noted that in her assessment she came to conclusions similar to those of Dr. Klassen and Dr. Wright, but noted that she did not find Mr. Thongdara as duplicitous during her assessment as Dr. Klassen did. (Dr. Iosif, Transcript, February 10, p. 43).

99A psychiatric assessment by Dr. Gojer dated February 14, 1999 indicated that Mr. Thongdara showed some remorse and he was diagnosed with adult anti-social behaviour and cannabis abuse. He noted that Mr. Thongdara’s assaultive behaviors were in the context of feeling wronged or in self defence. He noted repetitive aggressive behaviours in different settings but was not convinced that he had an antisocial personality disorder or that he was a psychopath. (Application Record, Vol 2, Tab 7)

100In sentencing Mr. Thongdara to a total sentence of 18 years, and an order pursuant to s.743.6 (1) that he serve half of the sentence before being released on parole, Jennings J. stated at p. 5 of his reasons for sentence dated April 14, 1999:

“I am unable to find that Mr. Thongdara is likely to be rehabilitated, which is a factor in my decision under this section. I have found that the complete disregard for the welfare of others exhibited in Mr. Thongdara’s conduct is particularly repugnant.”

Institutional Records

101Dr. Iosif’s report refers to 35 misconducts committed by Mr. Thongdara between 1994 and 2023 while incarcerated. The Crown argues that Mr. Thongdara’s history of misconduct while incarcerated illustrates Mr. Thongdara’s history of impulsivity and inability to change his behaviour. The misconducts in questions vary in severity, ranging from assault, possession of contraband, disobeying orders, to using foul language towards staff.

102Dr. Iosif summarizes Mr. Thongdara’s institutional history at pp. 22-23 of her report.

103The following are the institutional offences involving aggression or overt violence.

104July 15, 1994: An altercation misconduct with another inmate was found (Dr. Iosif Report, p. 22. Application Record, Vol. 3, Jail Records, p. 87)

105Between August 2022 and May 2023, Mr. Thongdara was found guilty of 4 misconducts involving assaults. (Dr. Iosif Report, p. 23). The circumstances appear varied. For example, in the misconduct finding dated August 9, 2022 the record states “Inmate admits to fighting, claims other inmate hit him first”. (Jail Records, Vol. 3, p. 582).

106In an incident of November 25, 2022, Mr. Thongdara was observed on CCTV striking another inmate with closed fists. (Jail Records, Vol. 3, p. 668).

107In an incident of November 28, 2022, it appears that Mr. Thongdara admitted to punching another inmate (Jail Records, Vol. 3, p. 660-662).

108On 3 occasions, Mr. Thongdara was found to have engaged in misconduct by disobeying an order or engaging in insulting behaviour with a guard on November 3, 1994, March 2, 1997, January 31, 1998, (Dr. Iosif Report, pp. 22-23).

109Correctional Service of Canada records from Joyceville Institution report generally satisfactory behaviour from October 2002 to February 2005. He followed his correctional plan, and worked in the kitchen, and subsequently attended school and completed Grade 10.

Anger & Emotional Regulation Treatment

110In 2003, Mr. Thongdara was identified as needing a medium level of intervention based on his static factors and a high level of intervention based on his dynamic factors. He demonstrated need in the areas of impulsivity, aggression, poor conflict resolution and low frustration tolerance. He completed the prerequisite program for Anger & Emotions Management Program and the Cognitive Skills Program at Joyceville Institution. (Application Record, Vol. 4, p. 383).

111Mr. Thongdara was enrolled in the Anger & Emotions Management Program at Joyceville Institution in 2003 but was suspended from the program due to sporadic attendance. Records reveal that he was attentive during some periods of the program and demonstrated an understanding of the concepts but neglected to remain engaged throughout all sessions. (Application Record, Vol. 4, pp. 384-386)

112In 2005, Mr. Thongdara completed the Anger & Emotions Management Program at Joyceville Institution. His attendance and engagement improved, and he was reported to be “cooperative and inquisitive” during sessions, while also well-liked by those in the program. He demonstrated a reduced disposition towards irritation, impulsive aggressive responses, and an improved ability to interpret and manage anger provoking situations. (Application Record, Vol. 3, p. 524-529)^.

113Following his completion of the Anger & Emotions Management Program and Reasoning and Rehabilitation at Joyceville Institution, upon his transfer to Bath Institution, he completed the majority of his correctional plan. (Application Record, Vol. 4, p. 731) Mr. Thongdara also completed the Preventive Maintenance for Violence Program in January 2015. (Application Record, Vol. 4, p. 1551)

2008 Progress Report (Bath Institution), Application Record, Vol. 4, pp.729-735

114Mr. Thongdara’s 2008 progress assessment revealed that he made improvements from his intake in the areas of: level of intervention based on dynamic factors, social interaction, personal/emotional orientation, and attitude. Progress was not made in the areas of: reintegration potential, level of intervention based on static factors, substance abuse and marital family, motivation level, security classification. The report also noted:

• Following his transfer to Bath Institution from Joyceville Institution in September 2006, he secured employment in the kitchen but was later suspended due to aggression towards staff members.

• He was suspended from school due to absence but was subsequently re-assigned. He remained focused on addressing his language barriers by participating in academic studies.

• He had difficulty adjusting to Bath Institution and was convicted of four minor institutional offences since he had arrived. Concerns remained regarding his ability to control his emotions and impulsivity despite his completion of Anger and Behavioral management programs.

• He accepted responsibility for his presence at the restaurant on the evening of the attempt murder and other offences but continued to deny shooting the victim. (Vol. 4, p. 731) He indicated that his decisions, negative associations, and the need to stand up for himself were all elements that contributed to his offending behaviour. (Vol. 4, p. 731)

115On June 14, 2010 at the Bath Institution, a report on “Institutional Adjustment/Offender attitude” noted good improvement in school and no infractions were noted. (Iosif Report, p. 25)

116In a May 13, 2010 report from the warden to the National Parole Board, the warden indicated that Mr. Thongdara has demonstrated a pattern of persistent violent behaviour. There are no supervision programs that would offer adequate protection to the public from the risk he might otherwise present. (Iosif Report, p. 25)

117In a June 7, 2010 Correctional Plan note, it was stated that Mr. Thongdara continued to deny shooting the victim in his attempted murder conviction. It was noted that in October 2008 he was placed in segregation after it was alleged that he assaulted another offender. An updated psychological risk assessment was requested. (Iosif Report, p.26)

118The June 11, 2010 assessment notes Mr. Thongdara has accumulated 15 misconducts over the course of his federal incarceration. He completed the cognitive skills course in 2003, and anger and emotion management in 2005. He had been suspended from an earlier anger management program in 2003. It was unclear to the assessor whether he had grasped the core tenets of the anger management program. He had been working full-time in the cabinet shop since September 2009. The psychologist noted elements of positive impression management. (Iosif Report, p. 26) The psychologist assessed Mr. Thongdara to be in the high moderate range for general recidivism and the moderate to high moderate range for violent recidivism. (Iosif Report, p.26)

119On June 14, 2010 at the Bath Institution, a report on “Institutional Adjustment/Offender attitude noted good improvement in school and no infractions were noted. (Iosif Report, p. 25) (CSC Records, Volume 4, p. 1704)

Parole Board Detention Reviews 2011 and 2014

120The March 23, 2011 National Parole Board decision ordered his continued detention on the basis that Mr. Thongdara was likely to commit an offence if released before the expiration of his sentence. It was noted that at his hearing of November 30, 2010 he admitted being the shooter in the attempt murder offence. He was noted to have difficulties controlling violent impulses. Enhanced supervision or residency in a community correctional centre was considered not sufficient to manage his risk. (CSC Record, Vol. 4 p.1085-1089).

121In a January 8, 2014, Detention Review at Joyceville Institution, it was noted that Mr. Thongdara had completed the violent offender maintenance program. Concern was noted on the extent to which Mr. Thongdara had internalized the lessons from this program and shown that he could put them into practice. He retracted his previous admission of being the shooter in the attempt murder offence. A psychological risk assessment from December 2013 indicated that he remained in the high moderate range for general recidivism and the moderate to high moderate range for violent recidivism. His detention was confirmed. (Dr. Iosif Report, p. 28) (CSC Records, Vol. 4, p.1247-1251).

Statutory Release By The Parole Board: April 10, 2015

122In the April 10, 2015 Parole Board of Canada decision, it was noted that Mr. Thongdara had recently completed the violent offender maintenance program for a second time. The facilitator of the program stated that he had demonstrated good motivation and had participated actively. It was noted that he required a significant amount of structure and supervision.

123In the April 10, 2015 Parole Board decision, the detention order was lifted and he was approved for “One Chance Statutory Release” with structure and close supervision. The conditions included conditions for residency, avoiding the victim and their family, not consuming alcohol or illegal drugs, avoiding criminal peers, and avoiding drinking establishments, (Dr. Iosif Report, p.29).

124In an assessment report recommending conditions for the statutory release granted by the Parole Board dated April 17, 2015 (Vol. 4. p. 1344), it was noted that Mr. Thongdara had completed numerous correctional programs including Reasoning and Rehabilitation in 2002, Anger and Emotions Management (2005) and the Violent Offender Maintenance Program (2013 and 2015), along with obtaining his high school diploma. The report stated at p. 1346 “he has completed the requirements in his correctional plan and appears to be amenable to participating in interventions required of him.” It notes that in more recent years he had been better able to manage his emotions and apply the skills learned in his correctional programs.

125The report noted that “Offender Thongdara does not appear to have serious addiction to illicit substances or alcohol”, but as he admitted to being under the influence of these when committing his offences, he should be prohibited from consuming illegal substances or alcohol in any statutory release. (p. 1348)

Mr. Thongdara’s Parole from April 10, 2015 to Warrant Expiry April 13, 2017

126The National Parole Board records for Mr. Thongdara’s period of release on parole, for more than two years prior to the end of his 18 year sentence, demonstrate that when living on parole, in a structured and controlled environment, Mr. Thongdara was able to live a relatively prosocial life, and remain fully employed, without committing violent offences.

127The periodic reports to the Parole Board in the period February 2015 to April 2017 are very favourable to Mr. Thongdara’s prospect of successful rehabilitation, while receiving the support and controls of a strict regime. In its initial decision to lift the previous detention orders, the board decided to grant him a “one chance statutory release with structure and close supervision”. The statutory release included numerous conditions including not to consume alcohol or drugs, avoiding association with persons involved in criminal activity, avoiding drinking establishments, residing at a community correctional centre or a community residential facility approved by Correctional Service of Canada and to report to the Toronto police monthly. (Parole Board Decision, April 10, 2015) (Vol. 4, p. 1354)

128On September 8, 2015, Mr. Thongdara’s statutory release was suspended briefly as a result of his admission of smoking marijuana on one occasion. However, his otherwise general good conduct while on statutory release caused that suspension to be lifted by a decision dated September 29, 2015. (Parole Decision Dated September 29, 2015, Vol. 4, p.1432). The Board noted at p. 1437:

“Though, by all indications, Thongdara was doing very well, on 2015-09-07 he disclosed to his CRF caseworker that he had violated his special condition to abstain drugs by smoking marijuana.

While Thongdara’s use of marijuana is concerning, given that he accepted full responsibility for his actions and it was believed that risk to the community would remain manageable with close supervision and limited access to the community, his Statutory Release suspension was locally cancelled on 2015-09-14 and he reported to the CRF as directed. There have been no issues with his attitude, behaviour, or compliance, since his return to the community.

The case management team believes that with close supervision, the structure, support, and monitoring afforded by CRF residency, limited access to the community, and participation in treatment intervention, the risk that Thongdara presents to the community will remain manageable.”

129In a subsequent decision dated January 22, 2016 the board determined that it was appropriate to maintain the residency condition on Mr. Thongdara’s release in order to minimize the risk of further offences. The report of that date is strong evidence of Mr. Thongdara’s ability to remain free of further offences in the structured and controlled environment provided by his parole conditions.

130The Board stated in its decision at p. 1469:

“During his incarceration, Thongdara successfully completed the Reasoning and Rehabilitation and Anger Emotions Management programs, as well as the Violent Offender Maintenance Program. As previously noted, Thongdara is currently participating in the Integrated Correctional Program Model Maintenance Program as a follow-up to said treatment programming. Collateral contact with Correctional Program Officer George Asiamah has been positive thus far, and it is anticipated that Thongdara will successfully complete the program in February 2016

Thongdara ‘s existing release plan remains appropriate and valid. He is currently residing at St. Leonard’s House Peel CRF in Brampton, Ontario, and he appears to be deriving a great deal of benefit from the structure, support, and monitoring afforded by CRF residency. He is fully compliant with the rules, regulations, and expectations of CRF residency, maintains positive working relationships with the writer and CRF staff, and readily asks for guidance, feedback, and assistance as needed. He is also maintaining full-time employment with M & K Metal Fabricating in Mississauga Ontario”.

131It is noteworthy that CSC had never identified substance abuse to be a significant contributing cause of Mr. Thongdara’s criminal behaviour, and had therefore never offered to Mr. Thongdara the treatment for substance abuse which Dr. Iosif concludes he now needs.

132A Toronto West Parole Office Report dated August 21, 2015 at p.1413 notes that CSC does not offer low intensity substance abuse programming, and states that Thongdara’s rating on substance abuse was low based on his moderate use of THC. The report states “while there are substance abuse issues, they are not considered to be significant” (Application Record, Vol. 4, p.1413)

133In the final Parole Report of his program supervisor dated April 18, 2016, the author states at p.1489:

“Mr. Thongdara has managed to avoid violence while on this release and he has been taking active steps to keep himself away from negative influences and removing himself from environments which may increase his risky thinking or promote violent behaviour. He said that feeling good and healthy keeps him motivated to continue to make improvements in his life ..... Overall Mr. Thongdara has been making attempts at applying his skills and he has demonstrated that he possesses the ability to use these skills should he need to.”

134Based on this conclusion, no further maintenance strategies were recommended.

135Mr. Thongdara completed his sentence on his warrant expiry date of April 13, 2017 after successfully completing 2 years of statutory release. (Vol 4, pp.1866-1868)

136The criminal record shows that, after the completion of his 18-year sentence, Mr. Thongdara was offence-free until his conviction for possession of fentanyl on October 3, 2019, and committed no offences of violence for 5 years until the April 19, 2022 robbery of the convenience store which is the index offence in relation to this dangerous offender application.

2019-10-03 – Brampton: Possession of a Schedule I Substance October 3, 2019

137Mr. Thongdara was caught with some Fentanyl in his pocket and paid a $100 fine.

2022-04-19 Robbery

138Mr. Thongdara pled guilty to the index offence of robbery that occurred at the Axess Convenience Store located in Toronto on Tuesday, April 19, 2022 described previously.

139When asked about this incident by Dr. Iosif, Mr. Thongdara explained that he was both high on Fentanyl and other substances that morning and was gambling prior to the attack. He had lost all his money and indicated that the “evil part” of him told him to rob the store worker when he exited the bus that morning. He indicated that the robbery was not premediated and expressed feelings of remorse.

140With respect to this offence, Dr. Iosif stated in her evidence on, February 10, at p. 53:

“The index offence is a situation where Mr. Thongdara is intoxicated, he was gambling, he lost his money and then he robs a convenience store. Every one of these elements is something that Mr. Thongdara had done previously… He was using fentanyl at the time and he was in the community doing what he had done previously with similar results.”

2024 – 02 -09 – Toronto Assault (Application Record, Vol. 1, Tab 17)

141This offence occurred while Mr. Thongdara was on a release order in relation to his charge of robbery of the convenience store on April 19, 2022.

142On Saturday July 9, 2022, Mr. Thongdara was at Woodbine Casino where he began to watch two strangers play the slot machines. The parties were unknown to each other and had no prior interactions. At approximately 11:45 a.m., without warning, Mr. Thongdara approached and kicked the male victim in the back of his head. This caused the victim to fall forward, and Mr. Thongdara pushed him off his chair. This caused the female victim to rise out of her seat and reach toward the victim, her husband. At this moment, Mr. Thongdara turned on the female victim and began to grapple with her and push her head downwards with both of his arms on the back of her neck. Following the assault, Mr. Thongdara fled the casino and was arrested shortly thereafter.

143During his interview with Dr. Iosif, Mr. Thongdara indicated that he was “very, very high” during this incident and committed the assault as he believed the couple was “talking bad” about him. He also explained that he had lost money at the casino the night before and was concerned he would be unable to eat and pay rent; this assault was an attempt to “take [the victims] money to go home”. He acknowledged that this was “bad thinking” and ran away after his attack. Both victims reported head pain following the attack.

144It is very concerning that this offence occurred while Mr. Thongdara was on a release order in relation to the April 19, 2022 convenience store robbery.

145Mr. Thongdara was sentenced to 6 months for this assault and failure to comply, served concurrently to the six months for the assault sentence.

146Concerning this offence, and the significance of substance use in the commission of the offence, Dr. Iosif stated at p. 25 of her testimony on February 10, 2024:

“Well, the issue of addiction is obviously very problematic. It’s problematic first of all because it’s a force that can, tends to drive criminal behaviour. The individual needs the substance, as Mr. Thongdara himself described, and therefore in order to acquire that substance they may resort to criminal activity, or they may look for ways to make money to support that habit. It’s problematic because being intoxicated with substances will impair someone’s judgement. Mr. Thongdara describes how he was intoxicated both at the time of the index offences and the offences that happened in July 2022 subsequent to the index offence, and it’s problematic because it poses challenges in terms of rehabilitating and finding more constructive ways for someone to manage emotions going forward from a risk management standpoint.”

Dr. Iosif’s Psychiatric Assessment and Risk Assessment

147Dr. Iosif testified that Mr. Thongdara’s addictions have restricted his ability to maintain a law-abiding lifestyle.

148She highlighted that his substance abuse and addiction have impacted his history of violence. As noted, following his lengthy federal sentence, Mr. Thongdara accumulated three additional sets of charges, two of which were violent in nature. Following this, he incurred further charges in July 2022. All offences were committed while he was intoxicated and illustrated an “indifference to the foreseeable consequences of his behaviour”.

149In Dr. Iosif’s opinion, Mr. Thongdara meets the criteria for:

• Personality Disorder Not Otherwise Specified (strong antisocial personality traits),

• Gambling Disorder; and

• Polysubstance Use Disorder (opiates and alcohol) in partial remission in a controlled setting.

Anti Social Personality Order

150In Dr. Iosif’s opinion, although Mr. Thongdara does not strictly meet the diagnostic criteria for antisocial personality disorder, he meets many of the criteria that are used to arrive at a diagnosis of Anti-Social Personality Disorder. She explained that his impulsivity and deceitfulness contributed to her assessment.

151Further, her report reveals that his childhood, notably his exposure to child abuse and neglect, alongside his history of unstable, erratic, and inconsistent parental discipline further strengthened her position on his diagnosis. When asked about her diagnosis in cross examination, Dr. Iosif indicated that Mr. Thongdara’s substantial time in prison plays a role in his diagnosis. She noted that this diagnosis is not uncommon among offenders who have spent extensive periods incarcerated. However, Dr. Iosif testified that as an individual matures, anti-social personality characteristics and effects are less evident with time. She testified that at the age of 65, these characteristics diminish significantly, however her report notes that Mr. Thongdara’s index offences demonstrate no objective changes despite his mature age.

Polysubstance Use Disorder (Opiates, Cocaine)

152Mr. Thongdara has struggled with substance abuse for most of his life. Dr. Iosif testified that his addiction has often been the driving force behind his criminal behaviour and poses severe challenges from a rehabilitation and risk management perspective.

153At the age of 25, Mr. Thongdara was introduced to and began using heroin and crack cocaine while incarcerated. When asked about his drug addiction by Dr. Iosif, Mr. Thongdara explained that his use of substances was an outlet to release and cope with the significant stress in his life. Between 2020 and 2022, Mr. Thongdara also battled an addiction to Fentanyl and was on Methadone and Suboxone while in prison. Following his release from prison, he continued using these substances and battled withdrawal, which he characterized as being both debilitating and resulted in him feeling quite ill. During his interview, he told Dr. Iosif that he requested to be weaned off methadone during his present incarceration and has been clean for a year as he did not wish to be released into the community with an addiction.

Gambling Disorder (Dr. Iosif Report, page 10)

154Mr. Thongdara meets the diagnostic criteria for Gambling Disorder. He has self-reported his struggles with gambling and both of his 2022 offences occurred in the context of gambling. Beginning in 2019, Mr. Thongdara would go to the casino approximately twice a week with a friend and would lose as much as a whole pay cheque. His addiction has brought upon personal hardships, relationship challenges, and led to his criminal behaviour. Dr. Iosif testified that his gambling addiction goes “hand in hand” with his substance addiction, a need for money, and criminal offending. He incurs debts from his gambling and substance use, which makes his gambling more reckless, and leads to aggressive conduct.

155Dr. Iosif emphasized the cumulative impact of Mr. Thongdara’s substance abuse, gambling addiction and anti-social personality disorder on his risk of re-offence. Dr. Iosif testified that the intersection of these three factors are all features that contribute to Mr. Thongdara’s risk level and likelihood of reoffence. Dr. Iosif testified that a sustained effort to address the substance abuse and gambling addiction would be positive for Mr. Thongdara and could impact his risk level and probability of recidivism.Dr Iosif acknowledged that treating the substance abuse and gambling addictions could possibly lower the risk of reoffence significantly.

156Significantly, Dr. Iosif acknowledged that Mr. Thongdara has not yet received programming or treatment for his substance abuse and addiction challenges.

157Dr. Iosif appears to have placed little emphasis, or possibly ignored, the 2-year period of statutory release under strict conditions from 2015-2017 which I consider to be an oversight in her analysis. In my opinion, it represents a significant period of time in which Mr. Thongdara was offence free, even though he had never received treatment for his gambling and substance addictions.

Actuarial Risk Assessment (Report, p. 34)

158In Dr. Iosif’s opinion, Mr. Thongdara’s likelihood for future violent recidivism falls in the high-risk category, evidencing a substantial likelihood of re-offense.

159Notably, Mr. Thongdara’s score on the PCL-R was 26, a high moderate score that is predictive of future general and violent recidivism. Further, this score indicates significant psychopathic characteristics, consistent with Mr. Thongdara’s Antisocial Personality diagnosis. Mr. Thongdara’s score on the VRAG was 20, placing him in the seventh of nine ascending risk categories and indicating a moderate-high probability of violent recidivism.

160Dr. Iosif reported that this assessment was not consistent with his presentation and history of significant violence. She attributed this discrepancy to the lack of collateral information on Mr. Thongdara’s early childhood and the interviewers who seemed to have little information of his history and potential for violence. As a result, Dr. Iosif believes a proper classification of his risk level is “high”, meaning he evidences a substantial likelihood of re-offense.

Dynamic Risk Assessment (Report, pp. 35-36)

161Dr. Iosif also engaged in a dynamic risk assessment which accounts for dynamic factors that are relevant in assessing risk management, particularly providing information about when someone is likely to re-offend to guide decision making. In doing so, she utilized the Structured Guide for the Assessment of Violence Risk (HCR-20 V3) and the Structured Assessment of Protective Factors for Violence Risk (SAPROF). Dr. Iosif concluded that a consideration of these dynamic factors did not lower his overall risk as his risk for violent recidivism was estimated to be high.

HCR-20 V3 (Report, p. 36)

162Dr. Iosif reported concerns regarding Mr. Thongdara’s lack of insight and instability. She concluded that Mr. Thongdara is likely to have future problems with professional services and plans, supervision response and coping if he is released into the community without completing a significant period of treatment in custody.

Structured Assessment of Protective Risk Factors (Report, p. 36)

163Dr. Iosif reported that Mr. Thongdara’s protective factors are few. She recalled that he has historically enjoyed working. Although he is quite attached to his wife, she noted that she had a lack of interest in maintaining a romantic relationship with Mr. Thongdara. These factors led to the conclusion that he would need to have external control once he enters the community again.

164On the totality of the evidence, I accept Dr. Iosif’s opinion that, without extensive treatment, Mr. Thongdara’s risk of committing a further violent offence is high.

Risk Management Strategies

165Dr. Iosif recommended the following risk management strategies to reduce Mr. Thongdara’s risk of re-offending: (Iosif, Report, p.39)

166Mr. Thongdara should access and complete a variety of programs designed to address antisocial traits both while incarcerated and after release into the community. He should take psychological treatment consisting of cognitive and social skills development, vocational training, and learning self-regulation and self-management. She stated that the prognosis for successful treatment of anti-social personality traits is “guarded”.

167Mr. Thongdara should abstain from all substances and alcohol.

168Mr. Thongdara should attend regular long-term treatment for substance abuse.

169He should pursue all recommended anger management and self-regulation and self-management programs to develop skills in each of these areas, Dialectical behavioral therapy could assist.

170Mr. Thongdara should pursue employment and additional education to structure his life and reintegrate himself into the community by fostering healthy self-esteem and providing prosocial influences and contacts.

171Mr. Thongdara should be given trauma informed therapy to address his childhood trauma.

172Mr. Thongdara’s release into the community should be gradual with extended periods of time in a residential correctional facility and limited privileges should be earned through demonstrated compliance and appropriate behaviour.

173Mr. Thongdara should be prohibited from associating with antisocial or substance abusing peers outside of the correctional facilities (Dr. Iosif Report, pp. 38-39)

174Dr. Iosif did not set a particular time limit for the completion of this regime during incarceration and after a release into the community, or articulate an end-point at which time she understood these interventions would no longer be needed.

175She stated at p. 38 of her report:

“Given Mr. Thongdara’s high risk of violent offending, he needs a high level of intervention and significant resources to decrease that risk. His needs should be directed toward assisting with abstinence from substances, and therapies that focus on antisocial traits. He should also have a high level of consistent support and external supervision, and assistance in engagement in meaningful activities including employment. It is recommended that Mr. Thongdara complete the indicated programming in a federal institution prior to being released in the community.”

176With respect to release into the community Dr. Iosif stated at p. 39:

“Any release into the community should take place only gradually and slowly, with extended periods of time in a residential correctional facility, and limited privileges earned through demonstrated compliance and appropriate behaviour. Rapid intervention should be undertaken in the event of a breach of release conditions. Mr. Thongdara’s whereabouts should be regularly monitored by unannounced visits by probation and parole officers, once Mr. Thongdara is living outside a correctional facility. Involvement in treatment programs should also be monitored.”

177Dr. Iosif acknowledged in her evidence that Mr. Thongdara had never received treatment for his substance and gambling addictions. She acknowledged that his risk of re-offence was to commit a violent offence, but she could not predict the degree of violence involved.

178She stated that the risk of re-offence was created by the combination of Mr. Thongdara’s anti-social personality disorder, gambling addiction, and the substance addiction. She accepted that treatment for the gambling and substance addiction could significantly reduce the risk of re-offence. She testified “I think that addressing the substance use and the gambling disorder would be very positive for Mr Thongdara.” (Transcript, Feb. 11, 2025, p. 52)

179Dr. Iosif testified in particular about proposed treatment involving a determinate sentence followed by a long-term supervision order.

180She testified that if there was a penitentiary sentence, followed by a lengthy long-term supervision order, Mr. Thongdara would be approaching the age of 65 such that antisocial traits would be significantly reduced. She opined that if Mr. Thongdara were rehabilitated in terms of his substance use disorder, monitored to stay away from gambling and from antisocial peers, and with supervision of his interactions until 65 years of age, then in her opinion the risk of violent re-offence would be manageable. (Transcript, Feb. 11, 2025, p. 8)

181I accept Dr Iosif’s conclusion on Mr. Thongdara’s need for treatment to reduce the risk of violent re-offending to an acceptable level. On the totality of the evidence, I consider it to be a conservative, cautious estimate, that emphasizes the statutory purpose of protecting the public. Dr. Iosif expressed this opinion without expressly taking into account the 2-year period of statutory release from 2015-2017, when, even without treatment for substance abuse and his gambling addiction, Mr. Thongdara remained offence free while living under strict controls and supervision, and the subsequent period from 2017 to 2022 in which he was not alleged to have committed any violent offences.

182The testimony of Joseph Dixon, a Parole officer Supervisor, with Correctional Services Canada establishes that, as a person who had committed three violent offences, upon being sentenced to a period of incarceration of over two years, Mr. Thongdara would likely be referred for a psychological assessment upon his entry into the federal penitentiary.

183He would also receive an intake assessment at the Joyceville facility to determine what level of program intensity was appropriate for him. If he was assessed as needing a high intensity program it consists of 86 sessions in the institution of 2 and half hours per session (Joseph Dixon, Transcript, February 4, 2025 at p.26.). The current programming in federal institutions that would be applicable to an offender like Mr. Thongdara is a global relapse prevention program that is a multi-target program called the integrated correctional program model.

184If an offender is subject to a long-term supervision order, the order may involve a residential condition requiring the offender to live in a community correctional centre or a community residential facility in the same way in which this can be ordered by the Parole Board as a condition of parole. (Dixon, Transcript, Feb. 4, 2025 at p.52-54, 60)

185On the totality of the evidence, I accept Dr. Iosif’s evidence and recommendations on the in custody rehabilitative programming, and subsequent controlled environment and substantial supervision that is needed to reduce the risk of re-offence by Mr. Thongdara to an acceptable level such that it is effectively controlled.

Conclusion on the Designation as a Dangerous Offender

186In R. v. Boutilier, supra, at para. 43, Coté J. described the assessment of prospective risk at the designation stage as follows:

“As the assessment of prospective risk described above is concerned with whether an offender will continue to be a “real and present danger”, being unable to surmount his violent conduct, the sentencing judge must consider all retrospective and prospective evidence relating to the continuing nature of this risk, including future treatment prospects.”

187Applying this analysis to the totality of the evidence, I accept Dr. Iosif’s conclusion that, so long as he is compelled by a serious addiction to fentanyl and cocaine, Mr. Thongdara will represent a substantial risk to the community. However, I find that this risk is substantially reduced when he is living within the restrictions and substantial controls in force when he successfully avoided violence in the period February 2015 to April 2017 at the conclusion of his lengthy period of incarceration.

Conclusion on Intractability

188In my opinion the Crown has not proven beyond a reasonable doubt that Mr. Thongdara’s conduct is intractable.

189Intractable behaviour refers to behaviour that an offender is “unable to surmount”: R. v. SMJ, 2023 ONCA 157, at para. 23; R. v. Boutilier, supra, at para. 27.

190The record demonstrates that Mr. Thongdara has not undergone substantial assessment and treatment for his polysubstance abuse or for his gambling addiction. Dr. Iosif acknowledges that it is these conditions, in combination with his anti-social personality disorder, which form the basis of his ongoing risk of serious personal injury offence if released without treatment.

191The fact that Mr. Thongdara has not had the benefit of ongoing treatment for these conditions is a relevant factor in determining whether the Crown has proven intractability beyond a reasonable doubt: R. v. Simon, 2008 ONCA 578, per Doherty J.A. at para. 93. Indeed, Dr. Iosif acknowledged in her evidence “I think addressing the substance use and the gambling disorder would be very positive for Mr. Thongdara.” (Transcript, Feb. 11, p.52)

192In R. v. S.S., 2019 ONSC 3269, at para.120 (conviction appeal allowed at 2022 ONCA 305, but conviction restored at 2023 SCC 1), Justice Gray concluded that intractability had not been proven beyond a reasonable doubt in circumstances where many techniques for treating the offender, such as motivational interviewing and sex offender treatment, had simply never been utilized.

193In R. v. J.C., supra, the Court of Appeal allowed an appeal from a finding that the accused was a dangerous offender where the trial judge had not considered intractability at the designation stage. The Court stated at para. 23:

“23 In his evidence, Dr. Klassen described the appellant’s previous treatment programs as relatively short-term and unlikely to have been effective. For this reason, Dr. Klassen described the appellant as being, in practical terms, an “untreated offender”. Had this evidence been considered at the designation stage, it may well have led the trial judge to conclude that the appellant was not intractable and that he therefore ought not to be designated as a dangerous offender. The fact that this was a realistic possibility is reflected in the trial judge’s finding (albeit at the penalty stage rather than the designation stage) that “there is a possibility of successful treatment and cure, [and] the prospects of risk reduction and risk management and the reasonable possibility of eventual control in the community are real.”

194In R. v. Boutilier, the evidence showed that Mr. Boutilier’s tendency to commit criminal offences flowed from his drug addictions, and the expert forensic psychologist concluded that he was very likely to continue committing criminal offences to fund his drug use in the future. But this was premised upon the finding that Mr. Boutilier had had little success with a wide variety of drug treatment programs he had been through in his life, apart from one period of several months in a halfway house: Boutilier, supra, at para.80.

195In summary, Mr. Boutilier’s offending was intractable because he had tried drug treatment programs on several occasions, which were unsuccessful, and he had consistently failed to adhere to conditions of his release, making the finding of intractability a reasonable one: Boutilier, supra, at para. 80, 83 and 87.

196In contrast, Mr. Thongdara was never considered to have a significant substance abuse problem while incarcerated, and subject to statutory release, during his lengthy sentence for attempt for attempted murder and subsequently. Accordingly, he has never had the opportunity to pursue substantial multi-substance abuse treatment, or treatment for his gambling addiction.

197While on statutory release from April 2015 to April 2017, while living under strict controls and supervision, Mr. Thongdara committed no violent offences and self-reported his single instance of using marijuana. Even after controls were removed, and even without any treatment for his drug and gambling addiction he was free of violent offence for 5 years until the index robbery offence on April 19, 2022.

198On the basis of the totality of the evidence, including Dr. Iosif’s evidence, I conclude that it has not been proven beyond a reasonable doubt that his criminal offending is intractable in the sense that it is behaviour which he is unable to surmount with appropriate treatment. He has not been offered the required treatment needed to address these issues.

199In material in his CSC file, it is clear that, in the last few years of his 18-year sentence, and during 2 years of statutory release, he was found by parole authorities to be willing to address factors contributing to his criminal behaviour. He completed all programming made available, but never was given substance abuse or gambling addiction treatment. Even without this treatment from 2015 until 2022 he committed no offences of violence, and only began to re-offend with violence when the drug and gambling addictions became significant causal factors in 2022.

200Even while ignoring this important evidence, Dr. Iosif expressed the opinion that with a substantial penitentiary sentence, and lengthy supervision order, with substantial controls, treatment, and supervision, Mr. Thongdara’s risk of re-offence would be significantly reduced.

201In light of this opinion, which I accept, and the evidence of his substantial success while on statutory release (apart from admitting to marijuana use once), and for several years after the end of his sentence, I find that the Crown has not proven beyond a reasonable doubt that Mr. Thongdara’s violent offending is intractable.

202This is sufficient to conclude that the Crown has not proven beyond a reasonable doubt that Mr. Thongdara should be designated as a dangerous offender. Had I been satisfied that intractability was proven, I would have found Mr. Thongdara to be a dangerous offender under s.753(1)(a)(ii) as I am satisfied beyond a reasonable doubt that, on the totality of the evidence, Mr. Thongdara engaged in persistent violent behaviour in the 3 convenience store robberies, the attempt murder, and the assault on the elderly couple at the casino, reflecting a substantial degree of indifference to the reasonably foreseeable consequences to other persons of his behaviour.

203I accept Dr. Iosif’s evidence that, without substantial treatment, Mr. Thongdara has a high risk of re-offence, and in particular a high risk of committing a violent offence. I also find that a sentence of actual incarceration of more than 2 years is required for the index offence of robbery, but, based on all the evidence that there is a reasonable possibility of eventual control of the risk of re-offence in the community.

204I am therefore satisfied that Mr. Thongdara satisfies the requirements to be found a long-term offender. Based on the totality of the evidence, I am satisfied that there is a substantial risk that Mr. Thongdara will reoffend, that a sentence of more than 2 years is appropriate for the index offence of robbery, and that there is a reasonable possibility of eventual control of the risk of re-offence in the community based on the totality of the evidence: Criminal Code, s.753.1(1).

205Pursuant to s.753.1(3), Mr. Thongdara is therefore subject to a minimum sentence of at least 2 years, from which pre-sentence custody may be deducted, and a possible period of long-term supervision of up to 10 years.

206As agreed with counsel at the hearing of June 13, 2025, having determined that Mr. Thongdara be designated as a long-term offender in this decision, I will hear further submissions from counsel on the appropriate sentence to be imposed on a date to be scheduled.