Court File and Parties

Court File No.: CR-21-700000381-0000 Date: 2024-02-26 Ontario Superior Court of Justice

Between: His Majesty The King, Applicant And: Brendan Bananish, Respondent / Defendant

Counsel: Christine Jenkins, for the Crown Angelo Veneziano, for Brendan Bananish

Heard: October 30, 31, November 1 and 15, 2023

Before: Pinto J.

Reasons for Long Term Offender Designation and Sentencing Decision

Overview

[1] On August 23, 2022, Brendan Bananish pled guilty before the Honourable Justice Monahan of the Superior Court (as he was then) to three offences:

a) aggravated assault, contrary to s. 268 of the Criminal Code;

b) fail to comply with a recognizance, contrary to s. 145(5)(a) of the Criminal Code; and

c) fail to comply with probation, contrary to s. 733.1 of the Criminal Code.

[2] The index offence to which Mr. Bananish pleaded guilty occurred on August 30, 2020 when he repeatedly stabbed his ex-partner K.M. in a hotel room in Toronto and prevented her from leaving. Fortunately, K.M. survived.

[3] On November 21, 2022, Monahan J. issued an assessment order under s. 752.1 of the Criminal Code. A psychiatric risk assessment report was prepared by Dr. Brad Booth, a forensic psychiatrist, with the Royal Ottawa Health Care Group on March 27, 2023.

[4] On May 31, 2023, the Attorney General for the Province of Ontario consented, pursuant to s. 754(1)(a) of the Criminal Code, for the Crown to initiate proceedings to designate Mr. Bananish a Long-Term Offender (LTO). Notice was served on counsel and the Superior Court on October 19, 2023.

[5] Following Monahan J.’s elevation to the Court of Appeal for Ontario, I was assigned this LTO and sentencing matter.

The Parties’ Positions

[6] The Crown seeks that Mr. Bananish be sentenced as follows:

a) he be designated an LTO, pursuant to s. 753.1(1) of the Criminal Code.

b) he receive an eight-year penitentiary sentence, less pre-sentence custody.

c) he receive pre-sentence credit from his arrest date of October 30, 2020.

d) he be subject to a DNA order (aggravated assault is a primary designated offence).

e) he be subject to a weapons prohibition order for life under s. 109 of the Criminal Code.

f) he have no contact with K.M. pursuant to s. 743.21 of the Criminal Code.

[7] The defence position is that Mr. Bananish:

a) not be designated an LTO and that any rehabilitative conditions be fashioned in a lengthy probation order.

b) if he is designated an LTO, a five-year Long Term Supervision Order be ordered.

c) that he receive a global sentence of between four and a half and five and a half years, before pre-sentence and enhanced credit.

d) should a further period of incarceration be required, that it be served in a reformatory and not penitential setting.

Outcome

[8] For the reasons that follow, I find that Mr. Bananish:

a) shall be designated an LTO.

b) shall receive a global penitentiary sentence of seven years and three months, before the application of credits.

c) shall receive credit of 63 months for pre-sentence and enhanced custody.

d) shall serve his remaining sentence of 2 years or 24 months in a federal penitentiary.

e) shall be subject to a DNA order, arising from the aggravated assault which is a primary designated offence.

f) shall he be subject to a weapons prohibition order for life under s. 109 of the Criminal Code.

g) shall have no contact with K.M. pursuant to s. 743.21 of the Criminal Code except in accordance with a valid family law order.

Discussion

[9] The LTO application and sentencing process was heard over four days. The Crown called four witnesses in support of its LTO designation and sentencing position:

a) Dr. Brad Booth, an expert forensic psychiatrist (via Zoom);

b) Lisa Meloche, probation and parole officer, Ministry of the Solicitor General of Ontario (SOLGEN) Institutional Programming;

c) Peter Mathieson, parole officer supervisor, Correctional Service Canada; and

d) Brad Tamscu, manager, SOLGEN, Institutional Programming.

Mr. Bananish’s Background

[10] My discussion of Mr. Bananish’s background is derived from the evidence filed on the application including a Gladue Report and an affidavit that Mr. Bananish provided concerning his Indigenous background, his difficulties growing up and the impact of COVID-19 on his wellbeing in custody.

[11] At the time of sentencing, Mr. Bananish is 37 years old, born on September 13, 1986 in Sault Ste Marie. He is an Ojibway of the Pic River First Nation through his biological mother, who was subject to the Sixties Scoop. She was taken away from her family at a young age and was made to live with a non-Indigenous family in Sault Ste. Marie. Mr. Bananish is in contact with his mother, but not with his father. He does not know who his biological father is, and his parents did not live together. Mr. Bananish said growing up, he did not know much about his father, as he was not told much by his mother.

[12] Mr. Bananish was partially raised by his stepfather. His maternal grandparents died when his mother was 12 years old. Mr. Bananish has two sisters. He was raised with one of his sisters, K. The other sister, whom he does not know, was given up for adoption before he was born.

[13] Mr. Bananish has five children with his two previous partners, C.C., and K.M. C.C. is the mother to S., who is 14 years old. K.M. is the mother to Mr. Bananish’s other four children: C., 7; B., 6; G., 4; and C., 3. Mr. Bananish is not currently in contact with either of his former partners.

[14] Mr. Bananish worked on his high school credits while incarcerated. He completed his Grade 12 diploma in November 2022. He is enrolled in courses through Centennial College with plans of completing a business certificate.

[15] A Gladue Report dated January 25, 2023 was prepared by Aboriginal Legal Services Toronto (ALST).

[16] The Gladue Report describes Canada’s mistreatment of Aboriginal children and peoples and their relationship to the criminal justice system. The Gladue Report also traces the impact of colonialism in Canada on the health and well-being of Aboriginal people. Historical or intergenerational trauma has further manifested in the Aboriginal population through increasing prevalence of mental health disorders such as anxiety, post-traumatic stress disorders, depression and addictions.

[17] The Gladue writer, Priscilla Krebs, interviewed Mr. Bananish’s mother, who spoke about her experiences in foster care:

When I was 12 years old, both my parents passed away. I think it was alcohol related and diabetes. They were both heavy alcoholics. I was placed in a non-Indigenous foster home when I was 10 years old. I was not living with them when they died. I was in foster care until I was 16 years old. I left on my own. I was one of the lucky ones. I am still in contact with my foster parents.

[18] The Gladue Report referred to an Adverse Childhood Experiences (ACE) study [1] published in November 2014 by the Ontario Centre for Excellence in Children and Youth. The study found that adults who had experienced four or more childhood exposures to harm or disadvantage during childhood were 4 to 12 times more likely to experience alcoholism, drug abuse, depression and suicide attempts than those who experienced none.

[19] The Gladue Report indicated that Mr. Bananish had experienced four of the eight identified factors, namely:

• exposure to psychological abuse;
• exposure to physical abuse;
• exposure to violence against mother; and
• living with household members who were substance abusers.

[20] Mr. Bananish admitted to having anger issues and admitted to his own alcohol and drug addictions. He started drinking when he was 12 years old. He got kicked out of Grade 9 when he was 16 and got a factory job. He would drink and party regularly. He would black out and not remember what he did. He did a drywall job for six years where every day he would drink. He got fired from some jobs because he would be hungover or did not show up.

[21] His drug of choice was crystal meth. He was consuming and selling it. After Mr. Bananish was incarcerated after his current charges, he began detoxing from his drug abuse.

[22] The Gladue Report indicates that Mr. Bananish’s Indigenous culture is important to him. When he participated in a men’s group while living in Sault Ste. Marie, he enjoyed being in the program and did not drink or do drugs:

I was given the name Fire Eagle by an Elder in Sault Ste. Marie. I started to get into my culture a little bit when I first got out of jail a few years ago. It was through the Native Friendship Centre. When I was there, an Elder, I forget his name, started a men’s group. I was part of that. It was all native men. And then, I don’t know why, I just started doing drugs again and lost myself. I stopped going to the men’s group. But I did like going to the group. It was a good group.

[23] In Mr. Bananish’s affidavit, he states that his step-father was abusive towards him and his mother. He was hit and observed his mother being hit as well. He began doing cocaine and ecstasy at 15. He got kicked out of home at 16, and moved to Brantford to live with a friend. It was only when he found himself involved in the criminal justice system that he reconnected with his Indigenous roots. His affidavit also discusses the impact of lockdowns and COVID-19 on his mental and physical health while in custody. He also mentions the poor conditions at the Toronto South Detention Centre and the Toronto East Detention Centre, which took an immense toll on his mental and physical wellbeing.

Mr. Bananish’s Criminal Record

[24] Mr. Bananish has an extensive criminal record with multiple convictions from 2006 to 2019:

• mischief under $5,000, unlawfully in dwelling house (x 2), assault (x 2), failure to comply with recognizance (2006)
• assault with intent to resist arrest, causing a disturbance, failure to comply with recognizance, failure to appear, causing a disturbance, assault a peace officer, failure to comply with probation order (2007)
• failure to comply with a recognizance and forcible entry (2008)
• failure to comply with probation order and obstruct peace officer (2008)
• assault (2008)
• failure to comply with conditions of undertaking (2011)
• obstructing a peace officer (2011)
• failure to comply and possession of a Schedule 1 substance (2011)
• failure to comply with conditions of an undertaking given by officer in charge (2011)
• failure to comply with probation order (2011)
• mischief (2014)
• careless use of firearm, assault, uttering threats, possession of a firearm knowing its possession is unauthorized (2019)

Description of Intimate Partner Violence (IPV) committed by Mr. Bananish

[25] As the gravity of Mr. Bananish’s offences and the victims involved can be obscured by a mere recitation of a long record of offences, I will briefly describe Mr. Bananish’s history of violence with intimate partners.

[26] Mr. Bananish assaulted four different intimate partners between 2006 and 2020 including K.M., the victim of his index offence. Mr. Bananish shares children with two of the prior victims. He had 10 intimate partner violence convictions starting from when he was 20 years old.

[27] The Crown provided the following summary of Mr. Bananish’s IPV offences. The defence took no issue with the Crown’s summary.

March 8, 2006 – mischief, unlawfully dwelling, assault (Victim: C.H.)

[28] On March 8, 2006, Mr. Bananish and a woman named B.J.R. went to a house on Lorne Crescent in Brantford, the home of C.H. Mr. Bananish and C.H. were previously involved in a domestic relationship for approximately two months.

[29] Mr. Bananish and B.J.R. knocked on the door. C.H. answered. Mr. Bananish and B.J.R. forced their way into the apartment. An altercation ensued. Mr. Bananish pushed C.H. and spit in her face. B.J.R. punched C.H. C.H.’s cousin came to the scene and broke apart Mr. Bananish, C.H. and B.J.R. B.J.R. smashed a window and then left with Mr. Bananish.

October 3, 2008 assault (Victim: C.C.)

[30] Mr. Bananish and C.C. were domestic partners. They share a child who, at the time of the offence, was six months old. They resided on Grey Street in Brantford.

[31] On October 3, 2008, in the presence of their child, Mr. Bananish grabbed C.C., threw her to the ground and held her there. C.C. sustained large bruising and swelling to her knees.

[32] C.C. was charged with assaulting Mr. Bananish on October 4, 2008 by punching him in the nose and scratching his arm. Mr. Bananish called the police on that date to report he was assaulted. At that time, C.C. disclosed that she was assaulted the previous day and Mr. Bananish was also arrested.

July 5, 2019 – assault, threats, possession firearm (Victim: A.M.)

[33] A.M. was the intimate partner of Mr. Bananish. They lived together on Graham Avenue in Brantford. He knew A.M. his entire life and was in a relationship with her for approximately four months prior to the offences. At the time, Mr. Bananish had three children who lived with him from his relationship with K.M.

[34] On July 5, 2019, Mr. Bananish consumed alcohol throughout the day. He became intoxicated and was belligerent with the victim. At approximately 5:00 p.m., he grabbed A.M. from behind as she was on the stairway leading to the basement. He grabbed her face and choked her. He punched her from behind several times. She suffered redness to her face and bruising to the inside of her upper lip. He threatened to kill her while he assaulted her. She took the threat seriously because he kept a gun inside the house.

[35] A.M. managed to leave the scene and remained in contact via text with Mr. Bananish. She contacted the police and disclosed he had a firearm. While communicating with him, he threatened to shoot the police if they attended the residence. Police attended the scene. He surrendered and was taken into custody.

[36] A search warrant was executed and police located an SKS-style rifle with a modified grip hand stop and a barrel length cut down, making it a prohibited weapon. The serial number was tampered with. The gun was located in the basement rafters. Mr. Bananish allowed another person to store it there carelessly.

[37] Part of the sentence for these offences included a probation order with no contact conditions regarding A.M.

September 11, 2020 – fail to comply with a recognizance contact (Victim: K.M.)

[38] On September 3, 2020, Mr. Bananish was charged with assaulting his domestic partner, K.M.. On September 8, 2020, he was released on a recognizance including a condition that he have no contact with and not be within 50 metres of K.M..

[39] K.M. was residing at a women’s shelter after being assaulted. On September 11, 2020, she left the shelter which prompted staff to call the police and request a wellness check at the address where Mr. Bananish and K.M. resided.

[40] Mr. Bananish answered the door and told the police that K.M. was not in the house and invited them in. K.M. was found hiding in the basement. Mr. Bananish was arrested. Part of his sentence included a probation order with a condition that he not harass, molest or physically interfere with K.M..

Index Offence - Aggravated assault (stabbing) of former partner at hotel in Toronto (Victim: K.M.)

[41] K.M. and Mr. Bananish have known each other for about a decade and together they are parents of four young children.

[42] On October 20, 2020, Mr. Bananish was placed on probation conditions restricting contact with K.M..

[43] On October 21, 2020, Mr. Bananish was released from custody on a recognizance and was bound not to have contact with K.M.. He was also prohibited from possessing any weapons.

[44] Shortly after his release from custody, Mr. Bananish returned to the residence on Pine Street in Sault Ste. Marie and began living with K.M.. Their four children were in foster care, which was distressing for them both.

[45] On October 29, 2020, Mr. Bananish and K.M. travelled to Toronto. The following day, they went out to eat and returned to the hotel room. Mr. Bananish consumed alcohol throughout the day.

[46] During the evening hours of October 30, 2020, while in the hotel room, Mr. Bananish was on the phone with an unknown female. He was talking about K.M. “killing” their children. He was upset and crying. After the phone call, he cornered K.M. in the bathroom, began repeatedly stabbing her with a folding pocket-knife and would not let her leave. He was standing over her as she was sitting. He said that “if my kids are dead then you’re dead too.”

[47] K.M. used her hands to shield herself from the attack and sustained an injury to her finger. She did not try and fight out of fear and disbelief.

[48] K.M. was yelling for Mr. Bananish to stop. He stopped once he dropped the knife. K.M. sat on the knife to conceal it from him. She was bleeding profusely after having sustained 11 knife wounds, including to her head, nose, face, neck, back and finger. She held a towel to her neck and finger. At this point, Mr. Bananish was holding her hand saying “I love you” while crying. She was able to move out of the bathroom and sit near the door of the hotel room. She continued to bleed.

[49] After attacking K.M., Mr. Bananish left the hotel room twice with blood stains on his shirt. The second time, he purchased a beer and two sodas from the concierge, taking them back to his room.

[50] At some point, K.M. asked Mr. Bananish to leave. He changed his jeans. He packed up his bags, walked past K.M. without offering any assistance and left. He went to the lobby shortly before midnight, retrieved his identification and left the hotel. He did not return and was arrested in Brantford the following day.

[51] K.M. eventually made her way into the hallway of the hotel about 12 hours later. Paramedics and then police arrived on scene and she was transported to hospital. She remained in hospital for 21 days. She had two spine fractures and an injury to a blood vessel in her chest. She has scars and her finger is disfigured despite surgical intervention.

Evidence on the LTO Application

Dr. Brad Booth

[52] I accepted Dr. Brad Booth as a duly qualified expert to provide expert opinion evidence on Mr. Bananish’s risk of reoffending. Dr. Booth is a forensic psychiatrist with the Royal Ottawa Health Care Group and an Associate Professor at the University of Ottawa. He provided a detailed curriculum vitae where his full qualifications are listed.

[53] Dr. Booth provided a psychiatric risk assessment report concerning Mr. Bananish, dated March 27, 2023. Dr. Booth evaluated Mr. Bananish in person for three hours at the Royal Ottawa facility on February 18, 2022.

[54] Dr. Booth’s psychiatric risk assessment report addressed Mr. Bananish’s personal, family, financial, educational and employment history. It also addressed his family’s mental health and substance use history.

Assessment

[55] Dr. Booth noted that Mr. Bananish had never taken any psychiatric medications prior to his current incarceration. He completed the PARS Program for Anger Management and Domestic Violence twice previously. The first was for four weeks following the domestic incident with C.C. in Brantford. The second was for four weeks in Sault Ste. Marie when he got out of jail. This got rolled into the Indigenous Men’s Group.

[56] Mr. Bananish had been going to a weekly Indigenous men’s group entitled “The Kind Man” in Sault Ste. Marie. He did AA a few times in the community and has gone to sessions while incarcerated.

[57] In terms of sexual history, Dr. Booth reported that Mr. Bananish does not have any sexual difficulties or paraphilic interests.

[58] Dr. Booth noticed that Mr. Bananish had some slight dysprosody (lack of emotional expression and speech). His thought process was generally organized and goal-directed. He showed some paucity of thought. In discussing his delusional beliefs about Freemasons, he did become mildly disorganized. He denied hallucinations, violent thoughts, and suicidal thoughts.

Results of Standardized Tests

[59] Dr. Booth administered a number of standardized tests to Mr. Bananish and reported on the results.

[60] Mr. Bananish likely has some residual adult ADHD symptoms based on the Adult ADHD Self-Report Scale (ASRS).

[61] He placed in the moderate depression range based on a Patient Health Questionnaire (PHQ-9).

[62] He placed in the minimal anxiety range on the Generalized Anxiety Disorders Scale (GAD-7).

[63] His test results indicated an alcohol use disorder based on the Alcohol Use Disorder Identification Test (AUDIT). Dr. Booth suggested that a residential treatment program of at least a month would be required, with a year of aftercare. If not successful, a longer stay and ongoing treatment may be required. A few medications can also decrease alcohol cravings.

[64] Mr. Bananish scored in the intermediate category for symptoms of substance abuse requiring intensive substance treatment. Dr. Booth indicated that Mr. Bananish should abstain completely with similar supports.

[65] Mr. Bananish’s results on the Buss-Perry Aggression Questionnaire (BPAQ) looking at symptoms of dysfunctional anger and aggression indicated that he does not have a problem in these areas. Dr. Booth noted that Mr. Bananish does not have a history of impulsive aggression outside of his intimate relationships.

[66] Mr. Bananish’s results suggest that he does not have social anxiety disorder according to the Social Phobia Inventory (SPIN).

[67] Dr. Booth opined that Mr. Bananish may have some self-esteem issues getting in the way of admitting his own flaws, based on his psychiatric evaluation and his results on the Paulhus Deception Scale (PDS).

[68] On another test measuring self-esteem, the Rosenberg Self-Esteem Scale (RSES), Mr. Bananish’s results indicated that he does not have severe self-esteem issues beyond that of normal individuals.

[69] Mr. Bananish’s profile suggests that he did not have any anger at the time of completing the assessment with Dr. Booth. Based on Mr. Bananish answering a 57-item questionnaire (the State-Trait Anger Expression Inventory-2 (STAXI-2)), he does not have elevated levels of trait anger suggesting that he is not generally somebody who holds grudges or has angry feelings.

[70] On a test to evaluate intellectual function, Mr. Bananish’s results show a below-average IQ (19th percentile), but when testing abstraction and problem solving with block patterns are added, he did better moving his full-scale IQ into the average range (68th percentile). The test results show that Mr. Bananish has some deficit in verbal ability.

Collateral Information

[71] In his report, Dr. Booth summarized the results of his review of the collateral information that was made available to him. The sources include:

a) Children’s Aid Society (Algoma) complete records.

b) CAMH Hospital records – Dr. Patal diagnosed Mr. Bananish with unspecified schizophrenia spectrum, delusional disorder, amphetamine use disorder and alcohol use disorder on November 5, 2020.

c) Dr. Pistor’s notes – Handwritten notes indicated that Mr. Bananish voiced delusional thoughts including about people being involved in a satanic cult of pedophiles and that his children were brought to sex parties by CAS workers.

d) Waypoint file – Dr. Booth reviewed the 320-page file which included a discharge summary from a hospital admission that lasted from August 7 to August 12, 2020. Mr. Bananish was expressing some delusional thoughts about people coming to harm him and his children.

e) Institutional files – Dr. Booth reviewed the 255-page file from the Algoma Treatment and Remand Centre, which noted that Mr. Bananish was granted parole on February 11, 2020. At that time, Mr. Bananish was going to stay with his mother and 11-year old son in Sault Ste. Marie. Prior to COVID, Mr. Bananish was attending weekly Indigenous-based domestic violence group programming as well as sweat lodge and other traditional ceremonies offered through the Indian Friendship Centre.

f) The Sault Ste. Marie probation and parole file for Mr. Bananish. He scored in a high risk to reoffend category. On the partner violence (ODARA) scale, Mr. Bananish also scored in the high-risk category.

g) Dr. Iosif’s assessment – Dr. Booth noted that Mr. Bananish was seen by Dr. Iosif, a forensic psychiatrist in the Psycholegal Clinic of the Centre for Addiction and Mental Health (CAMH) on July 20, 2021 in the context of examining his fitness to stand trial. He was interviewed by videoconference from the Toronto South Detention Centre for approximately three hours. Dr. Iosif concluded that a Section 16 defence of Not Criminally Responsible by reason of a mental disorder, was not supported. Dr. Iosif diagnosed Mr. Bananish with substance use disorder (to alcohol and crystal meth), antisocial personality disorder, and schizophrenia.

h) Additional Reports – Dr. Booth also reviewed Probation Officer Lisa Meloche’s November 5, 2020 letter and the Gladue report for Mr. Bananish prepared by ALST.

Diagnosis

[72] Dr. Booth diagnosed Mr. Bananish according to the criteria outlined in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). He diagnosed Mr. Bananish as having:

1. major depressive disorder, recurrent – current moderate depression improving
2. alcohol and stimulant (amphetamine and cocaine type) use disorders – severe - in remission in a controlled environment
3. likely schizophrenia with residual psychotic symptoms versus substance-induced psychotic disorder
4. likely ADHD symptoms
5. Antisocial Personality Disorder

[73] Dr. Booth noted that Mr. Bananish has genetic loading for substance use issues, depression, and likely anxiety. He may have had fetal alcohol effects from his mother drinking during pregnancy. His mother was not abusive but was an unstable presence in his life. He suffered emotional abuse by his stepfather. He likely developed self-esteem deficits and insecure attachments. In addition, there are likely trans-generational issues with his mother and aunt being survivors of the Sixties Scoop.

Risk Assessment

[74] Dr. Booth qualified his assessment by noting that it is impossible to predict with 100 percent likelihood whether a particular individual is going to reoffend. However, he can comment on the risk of that individual relative to other offenders and what risk factors may be amenable to intervention. Some offenders may be “very high risk” but manageable through treatment, supervision and other interventions. Other offenders could be fairly low risk, but not have their risk easily or practically managed.

[75] Actuarial Risk Evaluation involves using actuarial (statistical) methods to compare a limited number of the individual’s risk factors with large comparison groups. The severity of the particular offences is not significantly considered. This method of risk assessment focuses on historical factors that are primarily unchangeable and does not account for important changes that might occur with the individual over time.

VRAG-R

[76] Using the Violence Risk Appraisal Guide – Revised Version (VRAG-R), Mr. Bananish scored in the 67th percentile (i.e. 33 percent of offenders in the comparison sample had higher scores) and in the seventh of nine ascending risk categories (ninth being the highest risk). Given the opportunity, 41 out of 100 offenders (41 percent) within the same category would be expected to violently reoffend within five years, and 71 out of 100 offenders would be expected to violently reoffend within 15 years.

ODARA and SARA

[77] The Ontario Domestic Assault Risk Assessment (ODARA) and Spousal Assault Risk Assessment (SARA) are risk tools that evaluate the probability of future domestic violence. Mr. Bananish scored 9/13 on the ODARA. This places him in the high-risk group with a 70 percent recidivism rate in the comparison sample. This suggests a high risk of future domestic violence.

[78] On the SARA, he had 9/20 factors present placing him in the high-risk category (8 to 20 factors present). Dr. Booth assessed Mr. Bananish at the lower end of the high-risk category, again suggesting a high risk of future domestic violence.

[79] Dr. Booth noted that, before his index offence against K.M., Mr. Bananish had domestic violence convictions involving three former partners in 2006, 2008 and 2019. Of particular concern was that the index offence was committed despite attending substance abuse treatment. That said, Dr. Booth suggested that the index offence appeared significantly influenced by self-induced intoxication which exacerbated his psychosis.

Hare Psychopathy Checklist (PCL-R) and Self-Report Psychopathy, 4th edition (SRP4)

[80] One of the highest single predictors of violent recidivism is psychopathy, a type of personality construct thought to increase recidivism and worsen prognosis in treatment. Mr. Bananish scored in the 11th percentile suggesting that he does not have psychopathy.

[81] On another psychopathy scale, the SPR4, Mr. Bananish scored average suggesting that he is not more psychopathic than his peers.

HCR-20 V3

[82] On the HCR-20 V3, a test that looks at potential risk factors, Dr. Booth assessed Mr. Bananish as having some risk factors historically but few clinical and risk management risks.

SAPROF

[83] Using a tool, the Structured Assessment of Protective Factors for Violence Risk (SAPROF), which is a set of guidelines for the assessment of protective factors for violence risk, Mr. Bananish’s score was 22 out of a possible 34 suggesting reasonable protective factors. This suggested that the protective factors could be enhanced in treatment.

Clinical Judgment

[84] The final factor that Dr. Booth considered was looking at the specific details of Mr. Bananish’s case through the lens of his clinical judgment. Clinical judgment is not used in an isolated sense but is informed by clinical adjustment of actuarial and structured risk assessment. Dr. Booth concluded that:

Opinion and Recommendations

[85] Dr. Booth acknowledged that the decision regarding designation as an LTO is a legal question that a court must answer, not an expert. However, the court may be assisted by the opinion provided by a duly qualified expert who is subjected to cross-examination.

[86] Dr. Booth’s opinion was that without any intervention or supervision, Mr. Bananish will have difficulty exerting control over his impulses in the future, particularly when or if he became intoxicated and especially if his intoxication leads to psychosis. Statistically, he remains a high risk of future violence.

[87] Dr. Booth focused on the following factors:

a) Mr. Bananish’s VRAG-R score is in the seventh-highest category (out of nine categories) with a 41 percent risk of violent recidivism within five years, and 71 percent risk of violent recidivism in 15 years in comparison populations.

b) the HCR-20 results note many factors suggestive of high risk.

c) the ODARA and SARA results suggest a high risk of future domestic violence.

d) Mr. Bananish has shown an inability to follow court directions aimed at containing risk.

e) he reoffended despite two previous efforts at treatment of domestic violence plus previous substance treatment.

f) he remains at likelihood of future contact with the victim given that they share four children together.

g) he has antisocial personality and residual psychosis.

[88] Dr. Booth also pointed to some positive factors that would make it possible that Mr. Bananish would respond to treatment programs:

a) he does not have psychopathic features and he has shown motivation during his current incarceration.

b) he has some insights into his mental disorder and appears open to future interventions.

c) he has fair ties with his family and is motivated to work and be well to maintain future contact with his children.

d) his psychosis, which motivated his offence, has a reasonable likelihood of response to treatment and future stability.

[89] Dr. Booth was of the opinion that a LTO designation with a determinate sentence followed by a ten-year supervision order would be required to adequately protect the public. Dr. Booth was of the view that a ten-year supervision order would bring Mr. Bananish into his late 40s or early 50s, when violent recidivism and criminality typically decrease. The supervision would allow for close monitoring and intervention if his risk to others re-emerges.

[90] Dr. Booth opined that if Mr. Bananish enters the community, whether under parole, probation or some other order, he should complete in-custody high-intensity programs for substance abuse, anger and domestic violence with appropriate after-care programming.

Lisa Meloche

[91] Ms. Meloche testified at the sentencing hearing on behalf of the Crown. She is a program delivery officer on a duty assignment and does not have a current caseload of clients. From September 2015 to October 2022, she worked as a probation and parole officer with SOLGEN in Sault Ste. Marie. She authored a report dated November 5, 2020 concerning the probationary circumstances that existed around the time that Mr. Bananish committed the index offence.

[92] In the report, Ms. Meloche explained that Mr. Bananish was subject to two probation orders when he committed his index offence against K.M.. One was a 12-month probation order dated November 22, 2019 which began on May 31, 2020 that was set to expire 12 months later; and a second was an 18-month probation order which began on October 20, 2020 that was set to expire on April 19, 2022.

[93] The report explained that Mr. Bananish was sentenced on November 22, 2019 for 206 days in respect of the offences against A.M. He was then granted parole and released in February 2020. He relocated to Sault Ste. Marie to reside with his mother. He completed an Indigenous Domestic Violence Program.

[94] On March 29, 2020, Mr. Bananish violated parole by removing his ankle bracelet / monitoring device. Police attended at his residence, but as he was not located a warrant was sought. Parole was suspended on March 30, 2020. Mr. Bananish was apprehended and admitted to custody on April 12, 2020. Parole was revoked on April 29, 2020, and he was released from custody on May 31, 2020.

[95] Ms. Meloche put Mr. Bananish in touch with James Roach, the Coordinator of the Intimate Partner Violence project at the Indian (renamed Indigenous) Friendship Centre.

[96] K.M. had relocated to Sault Ste. Marie. Mr. Bananish advised the CAS that they were going to be moving in together at the end of July 2020. On August 26, 2020, Mr. Bananish was charged with operation of a vehicle while impaired and breach of probation. On August 14, 2020, Mr. Bananish contacted Ms. Meloche by phone and advised that he had been in a psychiatric ward at Sault Area Hospital. He agreed to report in person the same day but did not show up.

[97] On September 3, 2020, Mr. Bananish was charged with assault with respect to K.M.. He was remanded into custody on September 4 and released on bail on September 8, 2020.

[98] On September 11, 2020, Mr. Bananish was charged with failure to comply with a recognizance (x 2) and breach of probation. As discussed earlier, this was the occasion where Mr. Bananish told the police that K.M. was not at the residence, but police found her hiding in the basement.

[99] On October 21, 2020, Mr. Bananish was released on bail after receiving an 18-month probation order. He was to report in person to a probation officer on October 29, 2020. Instead, at 4:30 p.m. that day, Mr. Bananish called Ms. Meloche to say that he was going to southern Ontario and that he would report from an office down there. He said he was on the road and would let her know where he ended up.

[100] On October 30, 2020, Ms. Meloche found out that Mr. Bananish was wanted by the Toronto Police for charges associated with the index offence against K.M..

Peter Mathieson

[101] Mr. Mathieson is a Parole Officer Supervisor at the downtown Toronto parole office of Correctional Service Canada. He testified concerning what programs are available to offenders including in the community. He described the Integrated Correctional Program model which includes a Primer Program of 11 sessions specific to Indigenous offenders. The sessions typically take two weeks to complete.

[102] Mr. Mathieson explained that if an offender is subject to a long term supervision order but receives a provincial sentence, the offender would not have access to the Primer Program or the federal institution core programs. They would only have access to the Community Program and the Community Maintenance Program.

[103] For an offender with a provincial sentence who is designated an LTO, a parole officer from the community would do the case preparation and the intake assessments - since they would not have been completed in a federal penitentiary - in order to develop a correctional plan, release plan and supervision strategy for the offender. Recommendations would be sent to the Parole Board of Canada and the Board would proceed to review the file and issue a decision on supervision. In Mr. Mathieson’s experience, the typical process takes four months.

Brad Tamscu

[104] Mr. Tamscu is a manager with SOLGEN in the institutional programming area. He testified about how the provincial correctional system handles individuals that are incarcerated but not convicted or sentenced (the remand population), and the sentenced population in provincial correctional facilities. He described the three types of provincial correctional facilities: detention centres, correctional centres, and treatment centres, and explained that, since the majority of the provincial population is on remand, provincial programming tends to be shorter term, more introductory level programming rather than long term, intense programming. However, treatment centres offer more intensive programming that is catered to sentenced individuals who meet criteria for acceptance to a treatment centre.

[105] Mr. Tamscu testified that if an individual is designated an LTO but is sent to a provincial institution to serve their sentence, they are treated the same as the rest of the population. It is the federal Correctional Service Canada and not SOLGEN that is responsible for supervision and treatment in the community subject to a long term supervision order from the Parole Board of Canada.

The Law regarding Long Term Offenders

[106] Section 753.1 of the Criminal Code states:

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 re-offend; and

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

[107] The onus is on the Crown to prove beyond a reasonable doubt that the offender meets the criteria for an LTO: R. v. Currie, [1997] 2 S.C.R. 260, at para. 42. Even if the statutory criteria are met, a judge is not required to designate an individual as an LTO and retains discretion with sentencing: R. v. Johnston, at para. 84.

[108] Section 753.1(2)(b)(i) of the Criminal Code defines substantial risk when a court is faced with an offender whose criminal behaviour does not include sexual conduct.

(2) The court shall be satisfied that there is a substantial risk that the offender will reoffend if

(b) the offender

(i) has shown a pattern of repetitive behaviour, of which the offence for which he has been convicted forms a part, that shows a likelihood of the offender's causing death or injury to the other persons or inflicting severe psychological damage on other persons

[109] Closing submissions on the question of whether Mr. Bananish should be designated an LTO took place on November 15, 2023. Counsel for the Crown and defence submitted that the requirement of presenting a substantial risk to reoffend is a high threshold involving a substantial risk of causing serious harm to individuals: R. v. Ryan, 2017 ONCA 334, at para. 10. Counsel also submitted that a substantial risk to reoffend had been defined by the jurisprudence as requiring a substantial risk of violent re-offending: R. v. Piapot, 2017 SKCA 69, 355 C.C.C. (3d) 239, at para. 70; R. v. Smiley, 2019 ONCJ 75, at para. 48.

[110] However, two days later, on November 17, 2023, the Court of Appeal for Ontario released its decision in R. v. Snowden, 2023 ONCA 768 where the court held:

[117] Nonetheless, it is not necessary to address the broader issue of whether s. 753.1(1)(b) requires violent re-offending where the presumption in s. 753.1(2) does not apply, an issue that this court has yet to rule on definitively: see R. v. Lalumiere, 2011 ONCA 826, 286 O.A.C. 254, leave to appeal refused, [2015] S.C.C.A. No. 476, and R. v. Ryan, 2017 ONCA 334, at para. 10. [footnote omitted] It is only necessary to address the Crown’s submissions concerning the application of s. 753.1(2) because this provision is specifically designed to address the child pornography offences of which the respondent was convicted.

[111] The Court of Appeal for Ontario noted that other appellate courts have differed in their interpretation of s.753.1(1)(b): see Piapot (violent re-offending required); R. v. S.W.P., 2020 BCCA 373 (no requirement of violent re-offending). I take from the Court of Appeal’s decision in Snowden that the matter has not been decided in Ontario.

[112] I concluded that it was not necessary to invite further submissions from counsel on the Court of Appeal’s decision in Snowden as the determination of Mr. Bananish’s LTO designation does not turn on whether or not he will violently reoffend. Rather, the question turns on whether or not there is a substantial risk that he will reoffend.

[113] In Mr. Bananish’s case, the defence concedes that both s. 751.1(1)(a) of the Criminal Code and (c) have been satisfied by the Crown. In other words, the defence concedes that a penalty of more than two years is warranted in the circumstances and that, based on the recommendation of Dr. Booth, there is a reasonable possibility of eventual control of the risk in the community. However, the defence argues that the Crown has not proven beyond a reasonable doubt that there is a substantial risk that Mr. Bananish will reoffend.

[114] The defence argues that, outside of Dr. Booth’s evidence, none of the other witnesses offered any relevant insights into whether there is a substantial risk of Mr. Bananish re-offending. The Defence submits that the evidence of Mr. Mathieson, a Parole Officer Supervisor with Correctional Service Canada, and Mr. Tamscu, a Manager for Correctional Services with SOLGEN, mostly concentrated on the programs and services that their respective agency could (in the case of Mr. Mathieson) or could not (in the case of Mr. Tamscu) provide. Neither of them had ever met or spoken to Mr. Bananish.

[115] The defence also argues that former Probation Officer Lisa Meloche is not entitled to opine on Mr. Bananish’s risk of re-offending due to her lack of expertise in the field of risk analysis.

[116] I disagree that the Crown is relying on Mr. Mathieson, Mr. Tamscu or Ms. Meloche’s testimony to directly support its submission that Mr. Bananish has a substantial risk of re-offending. Instead, I understand Mr. Mathieson and Mr. Tamscu’s evidence to be about what programs and services are available in federal penitentiary (Mr. Mathieson) versus provincial correctional (Mr. Tamscu) settings. Ms. Meloche, in her capacity as a probation and parole officer, conducted an ODARA assessment on Mr. Bananish and testified he scored an 8, placing him in the high risk category.

[117] The defence took issue with Dr. Booth’s conclusion that Mr. Bananish presented a high risk of future violence. The defence noted that Dr. Booth relied heavily on the VRAG and VRAG-R actuarial measures where Mr. Bananish scored in the 67th percentile which equates to a 41 percent likelihood of violently reoffending within five years, and 71 percent likelihood of violently reoffending within 15 years. The defence submits that the correct way to interpret these results is to conclude that it is more likely that Mr. Bananish would not re-offend. Moreover, the defence noted that the actuarial tools that Dr. Booth relies on are not able to differentiate between less and more serious offences, which run the spectrum from simple assault to murder. Similarly, with respect to Mr. Bananish scoring high on the ODARA and SARA actuarial tools used to predict recidivism in the domestic context, the tool does not speak to the violence of the offence. Given Dr. Booth’s further comment that “[the index offence] does appear atypical from his history and he appeared significantly influenced by self-induced intoxication exacerbating his psychosis,” the defence submits that the evidence before the court does not meet the high threshold of serious harm to individuals.

[118] I disagree with the defence’s reading of Dr. Booth’s report and find that the Crown has met its burden of proving beyond a reasonable doubt that Mr. Bananish presents a substantial risk of re-offending.

[119] With respect to the VRAG and VRAG-R scores, it appears that Mr. Bananish’s score will cross the 50 percent mark of reoffending somewhere between the 5 and 15 year mark. I read the results as stating that only 33 percent of offenders scored higher than Mr. Bananish. Dr. Booth’s main conclusions are that, statistically, Mr. Bananish remains a high risk of future violence and shows a substantial risk of future domestic violence without appropriate supervision and treatment.

[120] I note that Dr. Booth diagnosed Mr. Bananish with:

a) antisocial personality disorder, which is difficult to treat.

b) schizophrenia, which is a lifetime illness and, critically, Mr. Bananish was still experiencing residual psychosis at the time of his meeting with Dr. Booth on February 18, 2022. Some of Mr. Bananish’s delusional thinking centres around the existence and role of Freemasons, their supposed involvement in pedophilia rings, and their supposed infiltration of police authorities. Mr. Bananish’s delusional thinking then ties this cabal into the involvement of his former intimate partners and his children.

c) severe substance use disorder, noting that Mr. Bananish began drinking at an early age.

[121] Dr. Booth opined that Mr. Bananish’s delusional beliefs are likely the product of his residual schizophrenia, which is a mental health illness, and cannot be equated to conspiracy thinking in an otherwise healthy individual.

[122] I am also concerned that Mr. Bananish has demonstrated an inability to follow court orders to have no contact with K.M., who is also the mother of four of his five children.

[123] Mr. Bananish’s history is replete with failures to comply:

a) after he was let out on parole in February 2020, he cut off his ankle bracelet in April 2020 and his parole was revoked.

b) on September 8, 2020, he was released on bail and found breaching three days later.

c) on October 21, 2020, he was released from custody on bail and shortly thereafter moved back in with the victim. He ignored the no-contact probation condition.

d) nine days later, on October 30, 2020, he committed the index offence of stabbing his former partner 11 times and leaving her bleeding without assistance in a hotel room.

[124] Despite intervention by medical professionals, receiving anger management training, and involvement in Indigenous counselling and cultural activities, he reoffended.

[125] I find that the level of brutality and violence of his offences in 2019 and 2020 were escalating.

[126] I am satisfied that the criteria under s. 753.1 of the Criminal Code has been met. The aggravated assault charge alone in this case would require a sentence of two years or more before consideration of pre-sentence custody. Mr. Bananish’s criminal history, his psychiatric diagnosis, and the opinion of Dr. Booth support the conclusion that there is a substantial risk that Mr. Bananish will reoffend. Dr. Booth also pointed to some positive factors including Mr. Bananish’s relationship to his children and community, coupled with the possibility of his positive response to treatment programs. These factors demonstrate that there is a reasonable possibility that his risk can eventually be controlled in the community.

[127] I therefore conclude that Mr. Bananish should be designated a long-term offender.

Length of the Sentence and Credit for Presentence Custody

[128] Having found that Mr. Bananish is a long-term offender, s. 753.1(3) of the Criminal Code requires that I impose a sentence and order that he be subject to a long-term supervision order that does not exceed ten years. I must therefore determine the length of the sentence and the length of the LTSO.

[129] In determining the length of sentence I have considered the fundamental purpose of sentencing set out in the Criminal Code, which is to contribute to respect for the law and the maintenance of a just peaceful and safe society by imposing just sanctions that have one or more of the following objectives: a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community: s. 718 of the Criminal Code.

[130] The sentence that I impose must be proportionate to the gravity of the offences and the degree of responsibility of the offender: s. 718.1 of the Criminal Code.

[131] I am mindful of Mr. Bananish’s Indigenous identity. The Court of Appeal for Ontario provided guidance on the sentencing of Indigenous offenders in R. v. Bourdon, 2024 ONCA 8:

[25] When sentencing an Indigenous offender, a judge must consider the unique systemic or background factors that may have played a part in bringing that particular Indigenous offender before the court, and the types of sentencing procedures and sanctions that may be appropriate in the circumstances. The judge must then go on to consider whether the systemic and background factors have impacted the offender’s life experience in a way that diminishes their moral culpability: R. v. Gladue, [1999] 1 S.C.R. 688, at para. 66; R. v. Ipeelee, [2012] 1 S.C.R. 433, at para. 73. These considerations are relevant even when the dangerous offender scheme is engaged: R. v. Boutilier, [2017] 2 S.C.R. 936, at para. 63, but are subordinate to the protection of the public, which is the paramount objective when sentencing a dangerous offender: Boutilier, at para. 56; R. v. Radcliffe, 2017 ONCA 176, 347 C.C.C. (3d) 3, at paras. 51, 63.

[132] Although the Court of Appeal refers to “dangerous offenders”, I find that the same guidance would apply in the sentencing of an offender that has been designated an LTO.

[133] There is no doubt in my mind that there have been systemic and background factors associated with Indigenous communities in Canada that have impacted Mr. Bananish’s life experience in a way that diminishes his moral culpability. Mr. Bananish may have had fetal alcohol effects from his mother drinking during pregnancy. His mother was an unstable presence in his life, and Mr. Bananish likely faced trans-generational issues with his mother and aunt being survivors of the Sixties Scoop. Dr. Booth noted that Mr. Bananish has genetic loading for substance use issues, depression, and likely anxiety. The Gladue Report noted that Mr. Bananish had exposure to psychological abuse, physical abuse, violence against his mother and he lived with household members who were themselves substance abusers. He modelled some of his behaviour based on those around him.

[134] The Crown submits that the appropriate sentence is a penitentiary sentence of eight years made up of seven years for the aggravated assault and one year for the failure to comply, to be served consecutively. The defence disagrees and submits that Mr. Bananish should receive a global sentence of between four and a half and five and a half years, before pre-sentence and enhanced credit.

[135] In R. v. Beale, 2024 ONCJ 36, Jones J. described the approach to sentencing for aggravated assault:

[39] In R. v. Tourville, 2011 ONSC 1677, at paras. 27-30 and R. v. Seerattan, 2019 ONSC 4340, at para. 36, Justice Code of the Superior Court of Justice suggested a broad range of sentencing for aggravated assault, typically split into three different categories.

[40] In the first, lower end of the range, intermittent sentences have been imposed. Where exceptional circumstances exist, completely non-custodial sentences have been imposed. Ms. Duncan does not suggest Mr. Beale’s crime falls into this category.

[41] In the second category, encompassing the mid-range of gravity, high reformatory sentences have been imposed. As explained by Code J. in Tourville, “[t]hese cases generally involve first offenders and typically contain some element suggestive of consent fights but where the accused resorted to excessive force”: see para. 28.

[42] In the third part of the range, involving the most aggravating cases, sentences of four to eight years have been imposed. These cases typically involve offenders with prior criminal records for similar crimes of violence, and/or unprovoked or premeditated assaults: see Tourville at para. 30. These cases also stand out for the lack of any suggestion of a consent fight or self-defence.

[136] I find that, by any measure, Mr. Bananish should be sentenced within the third category. He has a significant prior criminal record, and his index offence was brutal and unprovoked.

[137] In R. v. Gardner, 2016 ONCJ 45, the offender was convicted of aggravated assault against two victims: one, his on-again, off-again girlfriend, and two, another victim who attempted to intervene. The offender, who was of Indigenous ancestry, pleaded guilty. He had a history of domestic violence, drug use and alcohol abuse. He received a global sentence of seven years before credits. I note that his criminal record, consisting of 34 adult criminal convictions, 13 of which were for violent offences, is more extensive than that of Mr. Bananish.

[138] In R. v. Roy, 2022 ONCJ 503, the offender was convicted of aggravated assault for stabbing a neighbour multiple times in a drunken stupor. The offender pleaded guilty to the unprovoked attack receiving a sentence of four years before the application of credits. His criminal record consisted of only one entry for assault, for which he received a suspended sentence and 12 months probation.

[139] In R. v. Imam, 2022 ONSC 4866, the offender stabbed a victim in a shopping mall. The attack was completely unprovoked. Justice Schabas concluded that the appropriate sentence for the aggravated assault was five years. Notably, the offender in Imam had no prior criminal record. He was intoxicated at the time of the offences and his actions appeared completely out of character. Justice Schabas suggested that the high end of the range for aggravated assault involved stabbings is around six years, relying on Ryan, R. v. Haly, 2012 ONSC 2302, and R. v. Makhniashvili, 2011 ONCJ 772.

[140] In R. v. Hall, 2017 ONSC 3003, an offender of Indigenous background was convicted of aggravated assault for an unprovoked stabbing of a victim in the aftermath of a house party. Mitigating factors included mental health and alcohol abuse issues. The offender had a prior record of criminal activity, including crimes of violence. He received a sentence of 34 months before the imposition of credits. While the circumstances of the offender in Hall bear similarity to Mr. Bananish’s case, I note that Hall was decided before Seerattan where Code J. expanded the high end of the range of appropriate sentences for aggravated assault to four to eight years: Seerattan, at para. 36.

[141] There are a number of aggravating factors including Mr. Bananish’s criminal record dating back to 2006. He now has intimate partner violence convictions in respect of four women. Section 718.2(a)(ii) of the Criminal Code specifically requires that I take into consideration evidence that the offender, in committing the offence, abused his intimate partner.

[142] I further note that Mr. Bananish has breached multiple court orders. The degree of violence inflicted on K.M. was grave resulting in her being hospitalized for 21 days and being permanently scarred. I would also add that K.M. is legally blind making her a particularly vulnerable victim. Mr. Bananish left K.M. bleeding alone when he left the hotel room.

[143] In mitigation, it is acknowledged that Mr. Bananish pleaded guilty. Given the nexus between his Indigenous background and the factors that were playing out in his life, he is not as blameworthy as an offender who did not have his upbringing or experiences. I have also read and am encouraged by the letters of support for Mr. Bananish including from his mother, the John Howard Society of Sault Ste. Marie, the Addictions Worker at Biigtigong First Nation, Ontario Aboriginal Housing Services and Amadeusz, a charitable organization that supports young people who are incarcerated. It is to Mr. Bananish’s credit that he completed his Grade 12 diploma and wishes to pursue business courses at a community college.

[144] In all the circumstances, I find that a sentence of six-and-a-half years for the aggravated assault is the appropriate disposition. I find that this sentence is consistent with case law on sentencing for aggravated assault, particularly for offenders with prior criminal records. The sentence is a serious one that recognizes the scourge of intimate partner violence, while also appreciating the impact of systemic factors as they impact Indigenous offenders like Mr. Bananish.

[145] I agree with the Crown that an additional one year should be served consecutively for the fail to comply (probation) and fail to comply (parole). As the fail to comply offences were not linked to the aggravated assault, it is appropriate that they be served consecutively. However, in keeping with the “totality” principle, I would reduce the otherwise seven-and-a-half year total sentence by three months to seven years and three months. Although this was not raised by counsel, I do not think that this sentence offends the “jump principle”. This principle cautions a court against imposing a dramatically more severe sentence than the sentences imposed upon the offender for similar offences in the recent past. It has little application where, as here, the severity of Mr. Bananish’s crimes shows a dramatic increase in violence and seriousness.

Credit for Pre-Sentence Custody

[146] Mr. Bananish was arrested on October 30, 2020. At the time of sentencing on February 26, 2024, he has served a period of 40 months in pre-custody detention. Based on the Summers credit, and 1.5:1 ratio, he shall receive a credit of 60 months or 5 years: R. v. Summers, [2014] 1 S.C.R. 575. The defence submits and the Crown does not disagree that Mr. Bananish is entitled to a Duncan credit in respect of the harshness of the lockdowns he experienced including at the height of the COVID-19 pandemic: R. v. Duncan, 2016 ONCA 754; R. v. Marshall, 2021 ONCA 344. I agree with Goldstein J.’s comment that, “[t]he point of Duncan and Marshall, however, is not to reduce credit to a mathematical calculation but rather to impose a fit sentence”: R. v. Foster, 2023 ONSC 5066, at para. 40.

[147] Mr. Bananish experienced 138 lockdown days (of which 9 were full days) at the Toronto South Detention Centre (TSDC) during COVID, and he was celled with two other people for 35 nights at the Toronto East Detention Centre (TEDC). In all the circumstances, I would give Mr. Bananish an enhanced credit of three months, which results in a total credit of 63 months.

[148] Given the sentence I have imposed of seven years and three months (87 months) and the total credits of 63 months, Mr. Bananish will have to serve a further period of incarceration of 24 months in a federal penitentiary. I find that serving his sentence in a federal setting will allow Mr. Bananish access to the more intensive and long-term programs that are available in that setting.

Length of the Long-Term Supervision Order

[149] The Crown requested the maximum length of a LTSO, ten years. The defence submitted that five was appropriate. I have concluded that an eight-year LTSO is required in this case.

[150] The purpose of a LTSO is not punishment. It is designed to rehabilitate the offender and provide for the protection of future victims. As Mr. Mathieson and Mr. Tamscu explained, an LTSO is administered by federal parole services and would only come into effect after Mr. Bananish finishes his sentence. An LTSO would subject Mr. Bananish to a number of restrictive conditions.

[151] Dr. Booth testified that a ten-year LTSO would bring Mr. Bananish into his late 40s or early 50s when violent recidivism and criminality tend to decrease. Plus, an LTSO would allow for close monitoring and intervention if his risk to others reemerges. An LTSO would allow for further treatment and monitoring of the psychosis and substance abuse issues that lead to his offending.

[152] At the time of sentencing, Mr. Bananish is 37 years old. The warranty expiry date of his sentence will be on or about February 26, 2026, when he will be 39 years old. I find that an eight-year LTSO is long enough to accomplish the purposes of an LTSO without imposing the state’s intrusion into Mr. Bananish’s life any longer than necessary. In an eight-year timeframe, Mr. Bananish may also be in a healthier state in respect of the residual effects of his schizophrenia and his substance abuse issues. At the time that the LTSO ends, Mr. Bananish will be 47 years old, the earliest that one could legitimately describe him as in his “late forties.”

Conclusion

[153] I sentence Mr. Bananish to a global period of imprisonment of seven years and three months before the application of credits. With credits of 63 months, he must serve an additional 2 years or 24 months in a federal penitentiary.

[154] I order that he be subject to a LTSO for eight years.

[155] In addition, I make an order pursuant to s. 109 of the Criminal Code that he be subject to a weapons prohibition for life, and a DNA order as the aggravated assault is a primary designated offence.

[156] Finally, I order that Mr. Bananish shall have no contact with K.M. pursuant to s. 743.21 of the Criminal Code, except in accordance with a valid family law order.

Pinto J. Released: February 26, 2024