Court File and Parties
COURT FILE NO.: 16-SA5126 DATE: 20190408
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Applicant – and – R.M.P. Respondent
Counsel: Lia Bramwell, for the Applicant Cedric Nahum, for the Respondent
HEARD AT OTTAWA: June 4 and 7, July 16, 2018 and March 5, 2019
Decision on Section 752.1 Application
RYAN BELL J.
Overview
[1] On January 16, 2018, I issued Reasons for Judgment, reported at 2018 ONSC 403, finding R.M.P. guilty of two counts of sexual assault. The Crown seeks an order for a dangerous offender/long-term offender assessment pursuant to s. 752.1 of the Criminal Code. It asks the court to designate Dr. Jonathan Gray to perform this preliminary assessment.
[2] Section 752.1(1) provides:
On application by the prosecutor, if the court is of the opinion that there are reasonable grounds to believe that an offender who is convicted of a serious personal injury offence or an offence referred to in paragraph 753.1(2)(a) might be found to be a dangerous offender under section 753 or a long-term offender under section 753.1, the court shall, by order in writing, before sentence is imposed, remand the offender, for a period not exceeding 60 days, to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under section 753 or 753.1.
[3] As a preliminary matter, s. 752.1 requires that the court be satisfied that the offender committed a serious personal injury offence or an offence listed in s. 753.1(2)(a) of the Criminal Code. There is no dispute that R.M.P. has been convicted of a serious personal injury offence as defined in s. 752 of the Code.
[4] There are two issues on the application: are there reasonable grounds to believe that R.M.P. might be found to be a dangerous or a long-term offender and, if so, should the court designate Dr. Gray to perform the assessment.
Chronology of the Application
[5] A brief review of the chronology in relation to the hearing of this application is in order. The application was originally scheduled to be heard on June 4 and 7, 2018, subject to my ruling on the defence’s s. 11(b) Charter application. On June 4, 2018, I dismissed the s. 11(b) application and gave brief oral reasons, with more detailed reasons to follow (reported at 2018 ONSC 4117).
[6] Following my ruling on the s. 11(b) application, the Crown applied for an order extending the time for service and filing of the s. 752.1 notice of application, the application record and book of authorities. Defence counsel opposed the application for an extension of time and asked that the s. 752.1 application be dismissed outright. I found it to be in the interests of justice to extend the time for service and filing to June 4, 2018 and allowed the Crown’s application.
[7] The defence then moved for an order excluding certain evidence on the s. 752.1 application, including Dr. Gray’s February 28, 2018 sexual behaviours assessment report under s. 21 of the Mental Health Act, R.S.O. 1990, c. M.10. The defence argued that much of the evidence was inadmissible because it is hearsay. I dismissed the defence’s application. Proceedings under Part XXIV of the Criminal Code are sentencing proceedings. Hearsay is admissible at a sentencing proceeding pursuant to s. 723(5) of the Criminal Code. With respect to the sexual behaviours assessment report, defence counsel had not objected to the report’s admissibility on sentencing. As proceedings under Part XXIV are sentencing proceedings, I ruled that Dr. Gray’s report is admissible on the s. 752.1 application.
[8] Following these rulings, submissions on the s. 752.1 application were made by the Crown and defence on June 7 and July 16, 2018. During the Crown’s reply submissions on July 16, defence counsel raised concerns about R.M.P.’s fitness to continue to participate in the s. 752.1 application. I made a series of orders pursuant to s. 21 and 22 of the Mental Health Act for the purpose of assessing R.M.P.’s fitness. A fitness hearing commenced on December 11 and continued on December 14, 2018. On December 14, defence counsel advised that he was applying for a mistrial based on what he contended was a reasonable apprehension of bias on the part of the court. I heard the mistrial application on January 16, 2019 and dismissed the application that day, with written reasons to follow (reported at 2019 ONSC 795).
[9] The fitness hearing continued on February 5, 12 and 13, 2019. In my ruling of February 28, 2019, I found the defence had failed to establish, on a balance of probabilities, that R.M.P. is unfit to continue with the s. 752.1 application (reported at 2019 ONSC 1416).
[10] Crown counsel completed her reply submissions on the s. 752.1 application on March 5, 2019.
The Test Under Section 752.1
[11] The threshold test for remanding a person for a psychiatric assessment under s. 752.1 is relatively low. As LaForme J., as he then was, articulated in R. v. McArthur, [1997] O.J. No. 5146 (Gen. Div.), at para. 20:
It is my opinion that on an application brought pursuant to s. 752.1 the only onus and burden of persuasion on the Crown is to satisfy the court that there are reasonable grounds to believe that the offender might be a dangerous offender. In other words, the question the court must answer is based on the circumstances and evidence, is it a logical conclusion that there is a possibility that the offender might be found to be a dangerous offender? Moreover, as the test for an assessment does not involve any finding of fact that the offender is, at this stage, a dangerous offender, the onus on the Crown is not that which is expressed in either the criminal or civil standards of proof. Rather, in my view, it is simply this: is the court satisfied, after weighing and balancing all the relevant considerations, including the evidence, that the offender should be remanded for observation?
[12] In R. v. Ricciardi, 2018 ONSC 383, Di Luca J., at para. 4, summarized the test for an assessment order under s. 752.1 as follows:
The court must also be satisfied that there are reasonable grounds to believe that the offender might be found to be a dangerous or long-term offender. The threshold is low. It does not require reasonable grounds to believe that the offender will be found to be a dangerous or long-term offender. In order to grant the request for an assessment order, the court must be satisfied that there is a real possibility or a credibly based possibility that the offender can be found to be a dangerous or long-term offender: see R. v. Vanderwal, 2010 ONSC 265 at paras. 26-27 and R. v. Naess, .
[13] Section 752.1 is phrased in mandatory language so that once the threshold test is satisfied, “the court shall, by order in writing, before sentence is imposed, remand the offender, for a period not exceeding 60 days, to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts.”
[14] Given the potentially far-reaching consequences of initiating a dangerous or long-term offender proceeding, the court must ensure that the statutory requirements of s. 752.1 are met (R. v. P.H., [2005] O.J. No. 5698 (S.C.), at paras. 32-33).
Are There Reasonable Grounds to Believe That R.M.P. Might be Found to be a Dangerous or a Long-term Offender?
[15] Section 753(1) of the Criminal Code provides:
On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied
(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing
(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour,
(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or
(iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; or
(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.
[16] Section 753.1 deals with a long-term offender designation. Section 753.1(1) provides:
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.
[17] Section 753.1(2) provides in part as follows:
The court shall be satisfied that there is a substantial risk that the offender will reoffend if
(a) the offender has been convicted of an offence under…section 271 (sexual assault)…; and
(b) the offender
(i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender’s causing death or injury to other persons or inflicting severe psychological damage on other persons, or
(ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences.
[18] On an application under s. 752.1, the court only need be satisfied that there is a reasonable or a realistic possibility that the respondent may be found to be either a dangerous offender or a long-term offender (Ricciardi, at para. 16). The court also only need be satisfied that this can occur using any one of the routes available in the Criminal Code (Ricciardi, at para. 17).
[19] The Crown’s position is that it has satisfied its burden of establishing that there are reasonable grounds to believe that R.M.P. might be found to be a dangerous offender pursuant to any of s. 753(1)(a)(i), (ii) and s. 753(1)(b), or a long-term offender pursuant to s. 753.1 of the Criminal Code.
[20] The Crown relies on R.M.P.’s lengthy criminal record which includes three convictions for uttering threats, one conviction for robbery, five convictions for assault, three convictions for assault with a weapon, three convictions for sexual assault (including the predicate offences), and numerous convictions for R.M.P.’s failure to comply with recognizances of bail and probation orders.
[21] The Crown also points to the fact that R.M.P. has been convicted of a number of violent offences against C.M., his former domestic partner, including assault and assault with a weapon. At the time of one assault, C.M. was eight months’ pregnant. In 2017, R.M.P. breached a non-communication order by going to C.M.’s home just days after the order was made and after he was cautioned by the presiding judge about the importance of compliance.
[22] The record before me includes the victim impact statements of the three complainants in the sexual assaults.
[23] The defence submits that, based on the information currently available, there is no realistic possibility R.M.P. might be found to be a dangerous or a long-term offender pursuant to any of the potential routes identified by the Crown. The defence submits that there is no pattern to R.M.P.’s behaviour and that there is a “marked departure” between R.M.P.’s underlying record and the predicate offences. The defence also observes that there is a large gap in time between the previous conviction for sexual assault committed in 2006 and the predicate offences which were committed in 2015. In his submissions, defence counsel placed considerable reliance on the decision in R. v. Charley, 2017 ONSC 3496, where the Crown’s s. 752.1 application was dismissed. I note that in Charley, the Crown relied primarily on s. 753(1)(a)(i) and (ii), and did not rely on s. 753(1)(b). Mr. Charley’s record was described by the application judge as “sparse”, and one of the two offences relied upon as part of a pattern of conduct was a youth offence.
[24] I emphasize that at this stage, I am not determining or pre-judging whether R.M.P. will be found to be either a dangerous or a long-term offender; rather, I am required to determine whether there is a realistic possibility that R.M.P. might be found to be either a dangerous or a long-term offender.
[25] The totality of the circumstances before me includes the following:
- Two predicate offences of sexual assault – one involving vaginal intercourse with K.H. and the other involving digital penetration of C.S. The facts at trial were that both C.S. and K.H. were immobilized at the time they were sexually assaulted by R.M.P. In her victim impact statement, K.H. relates the emotional harm she has suffered as a result of the assault: she feels scared when she goes out in public; she trusts very few people; she is depressed, sad and scared “all the time.” C.S. is also afraid to go out in public; she has nightmares and her anxiety has increased.
- A conviction for robbery in 1999. On sentencing, Belanger J. stated “you have escalated to the point where you are committing robberies to satisfy your drug addiction.”
- Convictions in 2006 for the 2005 domestic assaults, including two assaults with a weapon (a cigarette and a knife), assaults on R.M.P.’s father and uttering threats.
- A conviction for sexual assault in 2006. The complainant was confined to a wheelchair. In her victim impact statement, the complainant referred to her inability to sleep, her low self-esteem and her lack of trust in men following the assault.
- With respect to the 2006 convictions, R.M.P. received 18 months’ incarceration and three years of supervised probation. The pre-sentence report refers to R.M.P.’s failure to take his medication as prescribed and the need to address his alcohol and drug use. Conditions of the probation order required that R.M.P. not associate with or contact C.M., that he attend for psychiatric treatment at the Royal Ottawa Hospital and follow any psychiatric treatment as recommended by his probation officer, and that he attend and actively participate in a rehabilitative program for alcohol and drug use. In October 2007, R.M.P. pleaded guilty to two counts of failure to comply with his probation order.
- The probation and parole officer’s report submitted to the court in October 2007 concludes that R.M.P. is not a manageable risk in the community and refers to the deterioration in R.M.P.’s mental health as a result of his non-compliance with treatment requirements. In 2008, R.M.P. was convicted of two further counts of failure to comply with his probation order.
- In 2012, R.M.P. was convicted of break and enter in connection with the theft of several bottles of alcohol from a locked LCBO store. The facts read into the record on the sentencing hearing disclose that after he was arrested, R.M.P. caused damage to the police patrol car and that during transport to the hospital for treatment, R.M.P. became violent.
- A conviction for assault on C.M. in 2014, at a time when she was eight months’ pregnant. The facts read into the record on sentencing include R.M.P.’s history of mental health issues and R.M.P.’s abuse of prescription medication in the time leading up to the assault.
- In May 2017, R.M.P. was convicted of uttering threats to cause bodily harm to C.M. and breach of his recognizance of bail not to have contact with her or to be within 100 metres of her residence.
- In March 2018, R.M.P. was convicted of a number of charges, including assault with a weapon, on C.M.
[26] R.M.P. now has three convictions for sexual assault, including the predicate offences. The defence submits that the 2006 sexual assault offence is markedly different than the predicate offences. I make two observations. First, s. 753(1)(b) does not refer to a “pattern” of behaviour; rather, it is the offender’s conduct in relation to “any sexual matter” that is to be assessed. Second, there is no question that the predicate offences are more serious than the 2006 sexual assault; however, as the Newfoundland Court of Appeal observed in R. v. Newman, , 115 Nfld & P.E.I.R. 197, at para. 71, “[t]he predicate offence represents, so to speak, the last straw in a series of dangerous violence on the part of the perpetrator”.
[27] All of the sexual assault convictions are evidence of R.M.P.’s failure to control his sexual impulses. There is evidence of the emotional harm R.M.P. has inflicted on his victims. I distinguish this case from R. v. R.D., 2017 ONSC 5258, on which the defence relies, where the predicate offence was committed fifteen years earlier and the offences actually committed since the predicate offence were known. Here, the predicate offences are evidence of R.M.P.’s escalating offending behaviour over time and may evince a failure on the part of R.M.P. to control his sexual impulses in the future.
[28] I am satisfied that there are reasonable grounds to believe that R.M.P. might be found to be a dangerous offender under s. 753(1)(b) of the Criminal Code. I rely on the same evidence in concluding that there is a real possibility that R.M.P. may be found to be a long-term offender under s. 753.1(2)(b)(ii) of the Code.
[29] While these findings alone are sufficient for the purpose of making an assessment order under s. 752.1, I have also considered the other routes identified by the Crown, those being s. 753(1)(a)(i) and (ii), and the related long-term offender provisions under s. 753.1(2)(b)(i).
[30] In R. v. Neve, 1999 ABCA 206, 237 A.R. 201, at para. 110, the Alberta Court of Appeal addressed the requirement of the pattern of behaviour required, observing:
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.
[31] The pattern of past behaviour must be repetitive (under s. 753(a)(i)) or persistent (under s. 753(a)(ii)). Evidence of one episode of violence or aggression will not be sufficient; however, it will not always be necessary that the offender have a lengthy history of violence or aggression. As the Alberta Court of Appeal stated in Neve, at para. 113:
Generally, however, in order to meet the requirements of a pattern, the fewer the incidents, the more similar they must be: Langevin [(1984), , 11 C.C.C. (3d) 336 (Ont. C.A.)]. We do not suggest that the offences must be of the same kind, that is, for example, a number of robberies. Similarity, as noted can be found not only in the types of offences but also in the degree of violence or aggression threatened or inflicted on the victims. This explains why the requirement for similarity in terms of kinds of offences is not crucial when the incidents of serious violence and aggression are more numerous: R. v. Jones (J.F.) (1993) 63 O.A.C. 317 (C.A.).
[32] Neve was cited with approval on this issue by the Court of Appeal in R. v. Hogg, 2011 ONCA 840, at para. 39.
[33] In this case, there are a number of incidents of serious violence and aggression. The three convictions for sexual assault are crimes of personal violence, each of which involved a failure by R.M.P. to restrain his behaviour, and each of which resulted in emotional harm to the victim.
[34] R.M.P. also has past convictions for assault, including assault on his former domestic partner, in 2006, 2014 and 2018. His convictions include three convictions for assault with a weapon. While not offences of a sexual nature, these too are crimes of personal violence. The assaults, in some instances, were accompanied by threats, for which R.M.P. has also been convicted, evincing not only aggression, but also further failures on R.M.P.’s part to restrain his behaviour. R.M.P. became violent upon his arrest in connection with the 2012 break and enter.
[35] There is further evidence of R.M.P.’s failure to restrain his behaviour. For example, R.M.P. was convicted of breach of his recognizance of bail by attending at C.M.’s home within days of the order being made. He has repeatedly breached probation orders by consuming alcohol or non-prescribed drugs and he has failed to follow the instructions of his probation officer. As observed in the sexual behaviours assessment report, alcohol and/or drugs have played a role in much of R.M.P.’s offending behaviour.
[36] Based on the totality of the circumstances before me, I am satisfied that there are reasonable grounds to believe that R.M.P. might be found to be a dangerous offender or a long-term offender, based on either a repetitive or persistent pattern of violent or aggressive behaviour, both with the potential to pose a likelihood of injury to others in the future.
[37] Therefore, pursuant to the mandatory language of s. 752.1, R.M.P. is to be remanded for a psychiatric assessment.
Choice of Assessor
[38] The defence objects to Dr. Gray performing the assessment under s. 752.1 based on (i) the sexual behaviours assessment report and his diagnosis of schizophrenia without the benefit of a full assessment; (ii) his ability to assess R.M.P. in French (although defence counsel acknowledged that Dr. Gray speaks “some French”); and (iii) the Crown’s failure to provide his curriculum vitae or his availability within the required time period.
[39] The defence’s objections to Dr. Gray were raised for the first time in counsel’s submissions on July 16, 2018, in response to a question from the court. In her reply factum addressing the choice of assessor, Crown counsel attached a copy of Dr. Gray’s curriculum vitae. The Crown’s July 16 factum states that Dr. Gray was available at that time, July 2018, to perform the assessment if ordered; in addition, it states that he is bilingual and is able to conduct interviews and assessments in French. As I have previously outlined, on July 16, 2018, Crown counsel was unable to complete her reply submissions on the s. 752.1 application.
[40] I agree with the observations of Parfett J. in R. v. Billings, 2017 ONSC 278, at para. 9, that the proper approach for the court to take where there is no agreement of counsel regarding the assessor,
is to defer to the Crown’s choice absent cogent and compelling reasons indicating that the Crown’s choice is inappropriate. I do so because the purpose of s. 752.1 is to prepare an assessment that the Crown can take to the Attorney-General in order to request consent to proceed to a dangerous or long-term offender application. The Crown will also be the party presenting that report to the court in the event consent is obtained. In these circumstances, the Crown needs to have confidence in the assessor chosen.
[41] While it is the court that designates the psychiatrist under s. 752.1, and the Crown does not get to unilaterally select whomever it wishes to conduct the assessment, in the absence of a cogent reason not to select the expert proffered by the Crown, such as qualifications, bias, or unavailability within a reasonable time, the expert put forward by the Crown should be designated (R. v. Gray, unreported decision of Maranger J. dated September 8, 2016; Billings, at para. 11; R. v. Wilson, 2018 ONSC 964, at para. 9). The offender is entitled to propose an expert and to make submissions on the issue (R. v. J.V., 2015 ONCJ 766).
[42] In this case, no other experts have been put forward. I have considered Dr. Gray’s curriculum vitae. Dr. Gray is currently a staff psychiatrist with the Integrated Forensic Program at the Royal Ottawa Health Care Group. He is also an assistant professor with the University of Ottawa’s Department of Psychiatry. Dr. Gray has, on numerous occasions, been qualified as an expert witness in forensic psychiatry by judges of the Ontario Court of Justice and the Superior Court of Justice, including on Part XXIV applications.
[43] Defence counsel submits that based on Dr. Gray’s s. 21 sexual behaviours assessment report, the court should have “concerns” about his appointment as the assessor. Defence counsel argues that Dr. Gray ought to have asked for more time to complete the report because he saw R.M.P. for less than an hour. Defence counsel also questions Dr. Gray’s diagnosis of schizophrenia without having conducted a “full assessment.”
[44] I have no such concerns. Dr. Gray clearly stated at the outset of his report its limitations, based on R.M.P. missing two of three scheduled appointments and arriving at the third significantly past the scheduled time. Nevertheless, Dr. Gray remained of the opinion that he was in a position to address the referral issues and to give an opinion about “potential diagnoses.” I note again that no objection was taken to the s. 21 sexual behaviours assessment report being admitted on sentencing; the objection only arose in the context of this application under s. 752.1. Dr. Gray is qualified to conduct the assessment required.
[45] As to Dr. Gray’s current availability to conduct the assessment, Crown counsel advises he is available beginning April 29, 2019. Crown counsel provided this information, as an officer of the court, on March 5, 2019, her first opportunity to address the defence’s objections to Dr. Gray being appointed as assessor. I reject defence counsel’s submission that “evidence” as to Dr. Gray’s availability was required.
[46] There is no cogent or compelling reason not to designate Dr. Gray as the assessor. I find that Dr. Gray should be designated as the assessor pursuant to s. 752.1 of the Criminal Code.
Disposition
[47] I am acutely aware of my gatekeeper role and the serious consequences of making an order under s. 752.1 for the psychiatric assessment. For the reasons given, however, the application is granted. I order that starting on April 29, 2019, and lasting no more than 60 days, R.M.P. shall be remanded to the custody of Dr. Gray for an assessment for use as evidence in an application under s. 753 or s. 753.1 of the Criminal Code.
Addendum
[48] Following the reading of these reasons for decision, Crown counsel advised that Dr. Gray is available to conduct the assessment, commencing today, April 8, 2019. I therefore order that starting April 8, 2019, and lasting no more than 60 days, R.M.P. shall be remanded to the custody of Dr. Gray for an assessment for use as evidence in an application under s. 753 or s. 753.1 of the Criminal Code. I have signed the order today.