Her Majesty the Queen v. Szostak (C55269) Her Majesty the Queen v. Szostak (C55308)

[Indexed as: R. v. Szostak]

Ontario Reports

Court of Appeal for Ontario,

Rosenberg, Rouleau and Strathy JJ.A.

January 10, 2014

118 O.R. (3d) 401 | 2014 ONCA 15

Case Summary

Criminal law — Dangerous offenders — Accused convicted of aggravated assault and other offences after assaulting friend and slashing his face with knife on separate occasions — Trial judge refusing to declare accused to be dangerous offender and imposing conventional sentence of six years' imprisonment — Crown's appeal allowed — Accused not being psychopath but being impulsive and having antisocial personality disorder — Limited prior opportunity for treatment in custodial setting — Trial judge's finding that accused not part of "very small number of offenders" legislation designed to capture — Trial judge erring by failing to appreciate that amendments to Part XXIV broadening scope of offenders falling within dangerous offender provisions — Trial judge erring in finding that intractability must be proven in order to justify a dangerous offender designation — Trial judge also erring in apparently concluding that long-term offender provisions unavailable for non-sexual offenders — Crown appeal allowed and accused declared a dangerous offender and sentenced to five years' imprisonment followed by ten-year long-term supervision order.

Criminal law — Dangerous offenders — Accused convicted of aggravated assault and other offences after assaulting friend and slashing his face with knife on separate occasions — Trial judge refusing to declare accused to be dangerous offender and imposing conventional sentence of six years' imprisonment — Crown's appeal allowed — Trial judge also erring in finding that pattern of behaviour required by s. 753(1)(a)(i) or (ii) was not made out because prior offences being spontaneous and not being "serial" — Accused's repeated use of force causing serious injuries with relevant similarities sufficient to prove pattern and trial judge erring in discounting prior offences on basis not causing life-threatening injuries or being intended to do so — Accused declared to be dangerous offender and disposition varied to five years' imprisonment followed by ten-year supervision order — Criminal Code, R.S.C. 1985, c. C-46, s. 753(1)(a).

The accused was convicted of assault causing bodily harm, aggravated assault, assault with a weapon, possession of a weapon for a purpose dangerous to the public peace, uttering threats, obstruction of justice and breach of probation. On one occasion, he beat his friend because the friend refused to give him drugs. The following year, he slashed the same friend's face with a pocket knife. The accused was diagnosed with attention deficit disorder and oppositional defiance disorder as a child, and was expelled from high school for making bomb threats. In 2005, he hit a man over the head with a beer bottle when the man objected to his trying to get ahead in a lineup. He pleaded guilty to assault with a weapon. A year later, while intoxicated, he had a fight with five people in a bar. The accused waited outside the bar and then slashed a man across the neck with a pair of scissors, based on the mistaken belief that the man had been involved in the earlier [page402] altercation. He was convicted of aggravated assault. The accused was sentenced to two years' imprisonment and he breached his parole three times. His criminal record also included convictions for robbery, breach of recognizance, breach of probation, uttering death threats and being unlawfully in a dwelling house. He had an antisocial personality disorder but was not a psychopath. The accused was impulsive and had no insight into his condition. The trial judge refused to declare the accused to be a dangerous offender and imposed a conventional sentence of six years' imprisonment. The accused appealed his convictions, and the Crown appealed from the refusal to declare him a dangerous offender.

Held, the accused's appeal should be dismissed; the Crown's appeal should be allowed.

The trial judge did not make any reviewable errors in convicting the accused.

The trial judge erred in finding that as the conduct relied upon by the Crown did not demonstrate a high level of intractability and that the accused was not part of the "small group" of offenders intended to be caught within the dangerous offender provisions. Intractability is not a necessary element to find a person to be a dangerous offender. The 1997 amendments removed intractability as a precondition to the use of the provisions of Part XXIV of the Criminal Code. It gave a judge the option to declare an offender a long-term offender even though the offender met the dangerous offender criteria, if the court was satisfied that the accused could eventually be safely managed in the community. The 2008 amendments created additional sentencing options even if an accused was designated a dangerous offender. A judge may impose among an indeterminate sentence, a determinate sentence followed by a long-term supervision order, or a determinate sentence. Although the legislation is still narrowly targeted at a small group of offenders, the 2008 amendments were intended to broaden the scope of the dangerous offender provisions. Therefore, neither the concept of intractability nor reference to the number of people intended to be brought within the provisions are of assistance in interpreting s. 753(1).

The trial judge also erred in finding that the requisite pattern of behaviour was not made out because the incidents relied on by the Crown were "spontaneous occurrences" and were not "serial offences". The fact that the various offences were spontaneous strongly told in favour of a pattern in the sense of both s. 753(1)(a)(i) and s. 753(1)(a)(ii), and there is no requirement that the Crown prove that the acts relied upon as the pattern were "serial". The accused seriously injured three people in four years and he used a weapon in three of the cases. The evidence showed sufficient relevant similarities. The trial judge's statement that none of the injuries inflicted on the victims were life threatening or intended to be so placed too high a burden on the Crown and failed to reflect the gravity of the offences.

But for those errors of law, the trial judge would have found the accused to be a dangerous offender and the accused is now so designated. The trial judge also erred by failing to consider whether the long-term offender provision applied because of an apparent misconception that designation could be applied only to sexual offenders. The trial judge made findings of fact strongly suggesting that a long-term supervision order would be of assistance in controlling the accused upon his release from the penitentiary. A conventional sentence standing alone would not be sufficient protection of the public and an indeterminate sentence was not required. The sentence was varied to five years' imprisonment followed by a ten-year supervision order. [page403]

R. v. D. (F.E.) (2007), 84 O.R. (3d) 721, [2007] O.J. No. 1278, 2007 ONCA 246, 222 O.A.C. 253, 222 C.C.C. (3d) 373, 74 W.C.B. (2d) 576; R. v. Johnson, [2003] 2 S.C.R. 357, [2003] S.C.J. No. 45, 2003 SCC 46, 230 D.L.R. (4th) 296, 308 N.R. 333, [2004] 2 W.W.R. 393, J.E. 2003-1825, 186 B.C.A.C. 161, 19 B.C.L.R. (4th) 243, 177 C.C.C. (3d) 97, 13 C.R. (6th) 205, 58 W.C.B. (2d) 154; R. v. Lyons, [1987] 2 S.C.R. 309, [1987] S.C.J. No. 62, 44 D.L.R. (4th) 193, 80 N.R. 161, J.E. 87-1123, 82 N.S.R. (2d) 271, 37 C.C.C. (3d) 1, 61 C.R. (3d) 1, 32 C.R.R. 41, 3 W.C.B. (2d) 62; R. v. Neve, [1999] A.J. No. 753, 1999 ABCA 206, [1999] 11 W.W.R. 649, 71 Alta. L.R. (3d) 92, 237 A.R. 201, 137 C.C.C. (3d) 97, 43 W.C.B. (2d) 107, consd

Other cases referred to

R. v. Dow, [1999] B.C.J. No. 569, 1999 BCCA 177, 120 B.C.A.C. 16, 134 C.C.C. (3d) 323, 41 W.C.B. (2d) 351; R. v. Hogg, [2011] O.J. No. 5963, 2011 ONCA 840, 287 O.A.C. 82; R. v. Moosomin, [2008] S.J. No. 812, 2008 SKCA 169, [2009] 1 W.W.R. 608, 239 C.C.C. (3d) 362, 320 Sask. R. 100; R. v. Newman, [1994] N.J. No. 54, 115 Nfld. & P.E.I.R. 197, 23 W.C.B. (2d) 2 (C.A.); R. v. Pike, [2010] B.C.J. No. 1803, 2010 BCCA 401, 292 B.C.A.C. 66, 260 C.C.C. (3d) 68; R. v. Simon, [2008] O.J. No. 3072, 2008 ONCA 578, 269 O.A.C. 259, 176 C.R.R. (2d) 68, 78 W.C.B. (2d) 492; R. v. W. (D.), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26, 122 N.R. 277, J.E. 91-603, 46 O.A.C. 352, 63 C.C.C. (3d) 397, 3 C.R. (4th) 302, EYB 1991-67602, 12 W.C.B. (2d) 551; R. v. Wormell, [2005] B.C.J. No. 1289, 2005 BCCA 328, 213 B.C.A.C. 223, 198 C.C.C. (3d) 252 [Leave to appeal to S.C.C. refused [2005] S.C.C.A. No. 371]

Statutes referred to

Canadian Charter of Rights and Freedoms, ss. 7, 9, 11, 12

Criminal Code, R.S.C. 1985, c. C-46, ss. 688 [as am.], (a), 718 [as am.], 718.1 [as am.], 718.2 [as am.], Part XXIV [as am.], 752 [as am.], 753 [as am.], (a) [rep. by S.C. 1997, c. 17, s. 4], (1), (a), (i), (ii), (4) [as am.], (b), (4.1) [as am.], (5), 753.1 [as am.], (1), (2) [as am.], 759(2) [as am.], (3) (a)(i), 761(1)

Interpretation Act, R.S.C. 1985, c. I-21, s. 44(e)

Authorities referred to

Ouimet, Roger, et al., Report of the Canadian Committee on Corrections (Ottawa: Canadian Committee on Corrections, 1969)

APPEAL by the accused from the conviction entered on December 22, 2010 and the sentence imposed by Lofchik J., sitting without a jury, 2012 ONSC 1376 (S.C.J.); APPEAL by the Crown from the refusal to declare the accused to be a dangerous offender.

Andreea Baiasu, for appellant Her Majesty the Queen (respondent in C55308).

Michael Crystal, for respondent Szostak (appellant in C55308).

The judgment of the court was delivered by

[1] ROSENBERG J.A.: — Philip Szostak appeals from his convictions by Lofchik J. for assault causing bodily harm, aggravated assault, assault with a weapon, possession of a weapon for a purpose dangerous to the public, uttering threats, obstruction of [page404] justice and seven counts of breach of probation. The Crown appeals from the decision of Lofchik J. refusing to declare Mr. Szostak a dangerous offender and imposing a conventional sentence of six years' imprisonment. At the hearing of the appeal, the court dismissed the conviction appeal but reserved on the Crown sentence appeal. These reasons explain why the court dismissed the conviction appeal and why I would allow the Crown sentence appeal.

The Conviction Appeal

A. The facts

[2] For convenience, I will refer to Mr. Szostak as the appellant throughout, even on the Crown appeal. The convictions arise out of three sets of events that all in one way or another involve Eric Englert, the appellant's one-time friend. I will usually refer to Mr. Englert as the complainant.

(1) August 2008

[3] On August 10, 2008, the appellant picked up the complainant at his sister's house. The two of them went drinking and consumed a substantial amount of alcohol. According to the complainant, the appellant was trying to get him to give the appellant some drugs the complainant was holding for a third person. When the complainant refused, the appellant became angry. They left the bar and returned to the complainant's sister's home where the appellant demanded that the complainant go in and get the drugs. However, the house was locked and the complainant was unable to get inside. The complainant asked if he could stay at the appellant's home. The appellant said he could not. He then drove to a nearby cemetery, dragged the complainant out of the car and beat him. The appellant left him in the cemetery. The complainant walked to his sister's home. He was missing his hat and one of his shoes. The complainant's sister called an ambulance. The complainant told his brother-in-law that he was beaten by three men whom he described. He later provided the same information to the police. He suggested that his ex-girlfriend was angry with him and may have had a motive to have him harmed. The complainant testified that he lied to the police to protect the appellant, who was on parole, and because he was afraid of another physical confrontation with the appellant.

[4] About 2:00 a.m. on August 11, 2008, the complainant's sister received a call from the appellant asking how the complainant was. He claimed that he had dropped the complainant off [page405] near the cemetery. He said he had gone back to the cemetery and found the complainant's hat and shoe, which he wanted to return to him. Some time later, the appellant made a comment to the complainant's brother that could be construed as an admission that he assaulted the complainant at the cemetery.

[5] The appellant testified. He denied asking the complainant for drugs the complainant was holding for another person. He said that when he drove the complainant to his sister's house after their night of drinking, the complainant could not get into the house. He then asked the appellant to drive him to his brother's house. On the way, the complainant changed his mind and said he should probably go to his sister's house. The appellant became annoyed and simply dropped him off near the cemetery, which was not far from the sister's house. The appellant denied assaulting the complainant. The next day, he received a call from the complainant's brother, who told him that the complainant had been jumped and asked him to visit the complainant. As he was driving over, he noticed the complainant's hat by the side of the road. When he retrieved the hat, he also noticed the complainant's shoe.

(2) August 2009

[6] In the summer of 2009, the appellant had recently been released from jail on an unrelated matter. He claimed that the complainant owed him money because he had taken two bikes that the appellant's grandmother had been keeping for him. The complainant claimed that he was entitled to the bikes because the appellant had his stereo system. On the evening of August 14, 2009, the complainant and a friend went to the beer store. The complainant had a kitchen knife with him for protection because the appellant was looking for him. By coincidence, the appellant came to the same beer store. When he entered the store, he saw the complainant and immediately left and waited outside. When the complainant left the store, the appellant approached him, put his left hand on the right side of his face said, "Tough guy, eh?" and, using a small pocket knife, slashed the left side of the complainant's face. The appellant then left.

[7] The complainant claimed that he never had a chance to use his knife. The complainant was bleeding heavily. He realized the police would be coming so he put his knife around the side of the beer store. At the time, he was subject to a lifetime weapons prohibition. The complainant returned to a grassy area near the store where a woman (Jill Gorle) helped him until the police and ambulance came. Ms. Gorle, who saw most of the encounter between the appellant and complainant, gave an account that [page406] was generally consistent with the complainant's account, although she did not actually see the appellant with a knife.

[8] The appellant testified that he waited outside the store intending to ask the complainant for some money for the bikes. He denied having any weapons. When the complainant came out of the store, there was a brief verbal exchange and then the complainant pulled a large butcher knife out of his pants. The appellant jumped on the complainant and wrapped his left arm around the complainant's neck. He used his right hand to grab the complainant's wrist that was holding the knife. When the complainant took a step forward, trying to escape, the knife cut the complainant's face. The appellant jumped into his vehicle and left. He was not supposed to be at the beer store and did not want to get caught there.

[9] According to the complainant, about two weeks later the appellant called him several times threatening that if he showed up at trial he would assault him and come after his family. These calls were the basis of the obstruction of justice and threatening charges. The appellant was on several probation orders in 2008 and 2009; hence the breach of probation charges.

B. Analysis

(1) The August 2008 events

[10] In his factum, counsel for the appellant submits that the trial judge failed to properly apply the approach to credibility in R. v. W. (D.), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26 and did not provide adequate reasons. In his oral submissions, counsel focused on the adequacy of the reasons and in particular the failure to deal with exculpatory evidence. The exculpatory evidence was the complainant's admission that he originally described three other men as having assaulted him. The complainant's brother-in-law later saw some men who met the descriptions provided by the complainant.

[11] I would not give effect to these grounds of appeal. The trial judge properly dealt with credibility. He explained why he rejected the appellant's evidence and why that evidence did not raise a reasonable doubt. He recognized that it was dangerous to act on the complainant's evidence alone given the lies he had told and his extensive criminal record. The trial judge found that the complainant's evidence was confirmed by the evidence of the complainant's sister and brother-in-law and the complainant's brother. A particularly cogent piece of evidence was the appellant's 2:00 a.m. telephone call to the complainant's sister, a call [page407] revealing knowledge of the attack which only the perpetrator would have.

[12] I am also satisfied that the trial judge's reasons were adequate. The exculpatory evidence came from Englert's brother-in-law, David Skewes. He was working in the garage when the complainant rang the doorbell of his house. Skewes let the complainant in and saw that he had been drinking, and had been badly beaten. Skewes tried to find out what happened, but the complainant was reluctant. Skewes suggested that they call the appellant and then go look for the men. The complainant did not want to call the appellant, said that Skewes did not understand and began to cry. He eventually said that he had been beaten by three men and then changed it to five men. He identified one of the people as "Adam" and also said that his own brother was part of the group. The complainant described one of the people who attacked him as having dark skin and a Fu Manchu moustache. Skewes then drove around the neighbourhood looking for somebody. When asked if he found anyone who matched the description, he said:

Well, I kind of, I think I kind of made up in my own, my own mind at that point. I just, yeah, somebody with that description, sure.

[13] The following day, he drove around the neighbourhood with the complainant and saw the same man. The complainant said that was the man. Skewes tried to get the man's name by asking in the neighbourhood and was told the man's name. Skewes made a few more inquiries but concluded "nothing was really happening, that it was kind of a made up name and everything". The very brief cross-examination of Skewes ended with the following:

Q. So the story appeared to be changing every time he spoke.

A. Right.

Q. Okay. And the only thing that led Eric to looking at this Middle Eastern individual in the neighbouring survey was your good conscience efforts at investigation to try to figure this out?

R. He was just trying to steer me and Stacey away. That's all.

[14] The complainant's brother Terry testified that he was not involved in assaulting him. He also testified that later the appellant admitted that he beat up the complainant in the cemetery.

[15] In my view, the only exculpatory effect of the evidence from David Skewes was to confirm that the complainant gave a prior statement inconsistent with his trial evidence. It did not establish as a fact that three or five men, including Terry Englert, actually assaulted the complainant. For that purpose, it [page408] was simply inadmissible hearsay. The trial judge used the evidence properly as a prior inconsistent statement that affected Englert's credibility and reliability.

(2) The August 2009 events

[16] On appeal from the convictions arising out of the events of 2009, counsel focused on the trial judge's use of opinion evidence from Detective Giuliani, a forensic services investigator. At the beginning of Detective Giuliani's evidence, Crown counsel sought to qualify him as an expert in fingerprints. Defence counsel agreed that the officer was qualified. Detective Giuliani introduced some photographs of the scene and explained where the kitchen knife had been found at the side of the beer store. He then went on to testify that he had examined the kitchen knife for fingerprints and found no prints. Without objection he also testified that while using various light sources to check for prints, he had looked for other fluids, including blood. He testified that he "[d]idn't see anything that appeared that there was any blood on the knife". He continued then to testify only about fingerprints and when they could be left on various surfaces. However, the last question asked the officer if there was any difference "in terms of blood versus fingerprints in terms of wiping away the evidence". The officer replied that "[b]lood is very difficult to just wipe away. . . . It's not something that could be easily or quickly done." Defence counsel in cross-examination immediately focused on the issue of blood on the knife. She questioned the officer in considerable detail as to the tests he had performed to see if there was blood on the knife. He explained that he had used various light sources which were all negative for blood. The cross-examination concluded with this exchange:

Q. If a bloody hand that had been clutched to a face and blood is seeping through the fingers, and that bloody hand then reaches and grabs a handle of a knife, pulls it out of a pocket and belt and discards it, would you likely be able to find traces of blood on that knife, having gone through that process?

A. I'd expect to see some stains on there, yes.

Q. Unless it was wiped very clean, correct?

A. Yes.

[17] In his reasons, the trial judge briefly referred to Detective Giuliani's evidence:

Detective Giuliani found no visible blood on the knife and tests for trace evidence of blood were negative. If the knife had caused the injury that bled profusely, one would expect to find blood on it. It is unlikely that the knife could have been meticulously cleaned of blood in the short time that [page409] [the complainant] had to dispose of it. Detective Giuliani testified that it would be difficult to remove all traces of blood from the knife.

[18] The appellant submits that the trial judge erred in admitting and relying upon the opinion of Detective Giuliani concerning blood since the officer was only qualified to testify about fingerprints. He also submits that the trial judge misapprehended the officer's evidence as to the nature of the tests he performed. Finally, he submits that the trial judge more generally erred in his approach to the evidence about how the attack occurred.

[19] I would not give effect to these grounds of appeal. As to the expert evidence, it is apparent that the decision not to object to the officer's evidence about blood was tactical. As the final exchange with the officer shows, defence counsel sought to use the absence of blood on the knife as evidence undermining the credibility of the complainant. We have not been provided with any evidence that shows Detective Giuliani was not qualified to give the opinion that he did or that anyone was misled by his evidence.

[20] I am also satisfied that the trial judge did not misapprehend Detective Giuliani's evidence. On appeal, counsel argued that the trial judge misapprehended the evidence because he referred to "tests for trace evidence". Counsel submits that this is not an accurate reflection of the officer's evidence and that he only did tests with various light sources. In my view, the trial judge accurately summarized the evidence. In fact, the trial judge's reasons accurately tracked the officer's answers in cross-examination:

Q. All right. Did you use a multi-step process on this particular knife?

R. I used visual with various light sources and once that was negative I stopped the test.

S. Okay. So you've got no trace of blood on the handle of the knife?

A. That's correct.

(Emphasis added)

[21] I am also satisfied that the trial judge did not misapprehend the evidence, including the testimony of the witnesses, as to how that complainant was cut by the knife. It was open to the trial judge to find that the manner in which the injury was inflicted was inconsistent with the appellant's testimony, especially in light of the independent evidence from Ms. Gorle.

[22] Counsel for the appellant conceded that if the convictions relating to the attack on the complainant stood there was no basis for interfering with the other convictions for obstructing [page410] justice, threatening and breach of probation. Accordingly, the appeal from conviction is dismissed.

The Crown Sentence Appeal

[23] The appeal by the Crown from sentence alleges that the trial judge erred in failing to find the appellant to be a dangerous offender and to impose sentence accordingly. On appeal, the Crown submits that the appeal should be allowed, the nine-year sentence imposed by the trial judge set aside, the appellant found to be a dangerous offender and sentenced to five years' imprisonment to be followed by a long-term supervision order.

A. The facts

[24] Since the Crown appeal is limited to questions of law alone pursuant to s. 759(2) of the Criminal Code, R.S.C. 1985, c. C-46, only a brief review of the facts is necessary to understand the issue raised by this appeal. The facts of the predicate offences of assault causing bodily harm and aggravated assault are set out above. The Crown also relies upon the appellant's history of violence and other crimes.

[25] The appellant's behavioural problems began when he was only seven years old. He had episodes of uncontrolled anger and was diagnosed with attention deficit disorder and oppositional defiant disorder. He did not do well in school and changed schools several times. He was expelled from high school in 2000 for making several bomb threats. He has worked in construction and prior to his arrest on the predicate offences was operating a drywall/home improvement business.

[26] The appellant was convicted of robbery as a result of an incident in 2000, when he and an accomplice punched a boy and stole his bicycle. The appellant would have been approximately 17 years of age at the time. He was involved in two much more serious offences in 2005 and 2006, which the Crown relied upon to prove the pattern of behaviour that would bring the appellant within the definition of a dangerous offender.

[27] In July 2005, the appellant was waiting in line for the washroom in a bar. Another customer objected to the appellant's behaviour in trying to get ahead in the line. After a short shoving match, the appellant hit the customer over the head with a beer bottle, cutting the man's head and right cheekbone. At the time of this offence, the appellant was on bail for a drug offence. The appellant pleaded guilty to assault with a weapon and breach of recognizance and received one day in jail in addition to 146 days of pre-sentence custody and two years' probation. [page411]

[28] While on probation, the appellant became involved in an altercation on the evening of May 30, 2006. The appellant, who was described as being drunk and high on drugs, became involved in a fight with five other individuals. Another person, who was not one of the five individuals, left the bar around this time. The appellant came up to him and slashed him across the neck with a pair of scissors. The victim sustained a three-inch laceration to his neck that narrowly missed the carotid. The appellant pleaded guilty to aggravated assault and breach of probation. He was sentenced to two years' imprisonment and three years' probation. While serving this penitentiary sentence, the appellant was involved in fights and was found in possession of contraband on several occasions. His parole was revoked three times.

[29] On June 6, 2009, just a few months before the second incident involving the complainant, the appellant pleaded guilty to threatening death and being unlawfully in a dwelling house. He had entered the home of his employer and threatened him over some money that he believed he was owed for some renovation work. The appellant left without harming anyone or taking anything.

[30] A psychologist, Dr. Mamak, and a psychiatrist, Dr. Chaimowitz, testified at the dangerous offender hearing. Various tests showed the appellant to have an antisocial personality disorder. He was not, however, a psychopath. He was at a medium to high risk to re-offend within one year of release. He lacked insight into his actions and was given to impulsive behaviour. He did not suffer from a major mental disorder and was willing to accept treatment. Dr. Chaimowitz concluded as follows:

Absent intervention he runs the risk of causing harm to others, posing a threat to their life, safety and physical as well as mental wellbeing. That likelihood will be a function of his ability to restrain his behaviour and avoid drugs and alcohol.

Mr. Szostak has now attacked two people with sharp instruments, namely a knife and scissors. He also struck an individual with a beer bottle. There is thus a suggestion that there may very well be a pattern of repetitive behaviour based on these acts.

Mr. Szostak has expressed remorse albeit superficial and has been able to reflect on his actions. He is quite clearly able to place his behaviours in the area of criminality. He is also smart enough to know that not expressing remorse would not be a wise thing. Nonetheless, I do not believe that there is sufficient evidence to suggest that any indifference he has would be substantial at this time.

. . . . . [page412]

The absence of prior treatment or attempts to control him in the community would suggest that one cannot say assertively that there is no likelihood of eventual control in the community. Should he receive psychological attention including anger management, substance abuse treatment, psychological oversight and monitoring, it is reasonable to expect that there may be an opportunity for substantial control of this man in the community.

[31] Both experts were of the opinion that the appellant met the criteria for a dangerous offender under both s. 753(1) (a)(i) and (ii). They agreed, however, that with treatment there was a possibility that the risk posed by the appellant could be managed in the community. They noted that the appellant had not had the benefit of any treatment, other than anger management, and that programs offered in the federal system would be more effective. There was a reasonable expectation that a lesser measure than indeterminate detention would adequately protect the public, namely, long-term supervision.

The Trial Judge's Reasons

[32] The trial judge provided lengthy written reasons for concluding that the appellant was not a dangerous offender. He noted that the convictions for assault causing bodily harm and aggravated assault were serious personal injury offences within the meaning of s. 752 of the Criminal Code and that the issue to be determined was whether these two predicate offences were part of a pattern of offending as required by s. 753(1) (a)(i) or (ii). After summarizing the elements of proof required under these subsections, the trial judge held that the Crown had failed to establish the pattern required. As he said, at paras. 64-70:

In this case I am not satisfied that the pattern of behaviour required by the section is present. The four offences relied upon by the Crown took place over a period of four years. While all of the offences involved violent activity on the part of the offender against others, the circumstances are sufficiently different that it cannot be said that they form a pattern.

Two of the events, the beer bottle incident in 2005 and the stabbing at the beach in 2006 involved strangers in circumstances where there was a potential threat of violence to the accused (the washroom lineup incident), or where there had been violence inflicted upon the accused (the beating by five men at the beach albeit that the stabbing victim was not involved).

All but one incident, (the beer store incident in 2009) occurred when Mr. Szostak was under the influence of alcohol or drugs.

The two incidents involving Eric Englert arose out of disputes connected to the past dealings between the offender and the victim.

In none of the cases did the offender pursue the victim for the purpose of inflicting violence on him, as all the incidents can be described as "spontaneous occurrences" and thus it cannot be said that they were serial offences as is the case in many dangerous offender applications. [page413]

None of the injuries inflicted on the victims were life threatening or intended to be so. The injuries in all cases were inflicted in a different manner.

I find that the conduct of Mr. Szostak in connection with the offences relied upon by the Crown does not demonstrate the relatively high level of intractability required to find that the behaviour constitutes a pattern of conduct contemplated by s.753(1)(a)(i) and (ii).

[33] The trial judge went on to refer to R. v. Neve, [1999] A.J. No. 753, 1999 ABCA 206, 137 C.C.C. (3d) 97 and R. v. Lyons, [1987] 2 S.C.R. 309, [1987] S.C.J. No. 62, which described the dangerous offender legislation as targeted at a very small group of recalcitrant offenders who could be expected to present an unacceptable risk to public safety. He interpreted Lyons, at p. 338 S.C.R., as requiring that the pattern of conduct must be substantially or pathologically intractable. The trial judge concluded, at paras. 75 and 76 of his reasons, with the following:

There is no doubt that Mr. Szostak has a history of offending the law and that some of his offences involved the use of violence. However, not all violent offenders are Dangerous Offenders within the meaning of the Criminal Code. I cannot say that Mr. Szostak will never re-offend. That risk exists -- and it is a real risk. Indeed, it would naïve to think otherwise. However, the question is not whether there is a possibility or even a probability of Mr. Szostak re-offending in the future. While this consideration certainly goes on the scale, the central question which must be addressed at this stage is whether given his past record and the various factors discussed above, he falls within the intended "small group of dangerous offenders" in Canada.

Phi[l]ip Szostak is a criminal, but the totality of the circumstances does not warrant a Dangerous Offender designation at this stage in his life.

[34] The trial judge having found that the appellant was not a dangerous offender went on to impose a conventional sentence of six years' imprisonment after giving the appellant credit of three years for pre-sentence custody.

Analysis

(1) The legislative scheme

[35] As pointed out in Lyons, dangerous offender legislation has existed in Canada in one form or another since 1947. The original legislation identified a category of "habitual criminals" that were to be kept in preventive detention. The particular concern posed by sexual offenders led to identification of a category of "criminal sexual psychopaths" that were also to be subject to preventive detention. The modern legislation, which relies upon a finding that the person is a dangerous offender, is the result of recommendations in the Report of the Canadian Committee on Corrections (Ottawa: Canadian Committee on Corrections, 1969) [page414] (the "Ouimet report"), and was enacted in 1977. It was the 1977 legislation that was examined in Lyons. The dangerous offender legislation underwent further revisions in August 1997 and July 2008. The appellant committed the two predicate offences in this case after the 2008 amendments came into force and thus the application before the trial judge in this case was governed by the 2008 provisions now found in Part XXIV of the Criminal Code.

[36] To understand the issues in this appeal, it is necessary to briefly consider the 1977 and 1997 legislative schemes. As I will show, there has been an important shift in the way in which the legislation works. The trial judge's discretion has narrowed in one sense, the judge no longer having discretion not to find a person a dangerous offender who fits the definition. But the discretion has been broadened in that the judge has wider sentencing options for a person who does come within the dangerous offender definition. In my view, these changes have an impact on the interpretation of the dangerous offender definition. In particular, it is my view that the possibility of successful treatment is of limited application in determining whether the person is a dangerous offender. The possibility of successful treatment is significant in choosing the appropriate disposition.

[37] Before briefly looking at the legislative history, I point out several important elements of the current definition of dangerous offender in s. 753(1)(a) that were relied upon by the Crown in this case. I have attached the current version of the entire s. 753 in the Appendix. The applicable part of the definition in this case is as follows:

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, or . . . [page415]

Thus, the Crown must prove

the predicate offence is a serious personal injury offence as listed in s. 752;

the offender constitutes a threat to the life, safety or physical or mental well-being of other persons because of

(1) a pattern of repetitive behaviour showing (2) failure to restrain the behaviour, and (3) likelihood of causing death or injury or inflicting severe psychological damage; or

(1) a pattern of persistent aggressive behaviour showing (2) a substantial degree of indifference.

The 1977 legislation

[38] The leading case interpreting the 1977 scheme is Lyons. In Lyons, the Supreme Court upheld the 1977 scheme in the face of a challenge under ss. 7, 9, 11 and 12 of the Canadian Charter of Rights and Freedoms. The definition of dangerous offender was found in former s. 688 of the Criminal Code. The definition in s. 688(a) is very similar to the present s. 753(1)(a) with these important differences. First, under the former s. 688, if the offender meets the definition, the court "may find the offender to be a dangerous offender and may thereupon impose a sentence of detention in a penitentiary for an indeterminate period" (emphasis added). The legislation appeared to give a judge discretion at both the stage of finding the person to be a dangerous offender and the penalty phase. As the Lyons court said, at p. 338 S.C.R.: "Finally, the court has the discretion not to designate the offender as dangerous or to impose an indeterminate sentence, even in circumstances where all of these criteria are met."

[39] Section 753(1) of the present scheme, adopted in 2008, provides that if the offender meets the definition of dangerous offender the court "shall find the offender to be a dangerous offender". The court's discretion is found in s. 753(4) as to the penalty: (a) indeterminate detention, (b) at least two years imprisonment and a long-term supervision order of up to ten years, or (c) a conventional or determinate sentence. The second important distinction is that under the 1977 scheme, there was no provision for a long-term supervision order as now exists in s. 753(4)(b) or making a finding that the offender is a long-term offender as provided for in s. 753(5).

[40] In the course of finding that the 1977 scheme was constitutional, the court made important observations on the nature of [page416] the dangerous offender scheme, observations that have been picked up in subsequent cases, notwithstanding the significant amendments in 1997 and 2008. For example, at pp. 325 and 338 S.C.R., the court introduced the concept of intractability in describing the type of offender meant to be caught by the provisions:

In addition to having been convicted of a serious personal injury offence, s. 688(a) and (b) provides that to qualify as a dangerous offender, it must also be established that the offender constitutes a threat to the life, safety or well-being of others on the basis of evidence of the dangerous and intractably persistent or brutal behaviour described in subparas. (i) to (iii)[.]

Also explicit in one form or another in each subparagraph of s. 687 is the requirement that the court must be satisfied that the pattern of conduct is substantially or pathologically intractable.

[41] The court also focused on the principle that the dangerous offender legislation was designed to apply to a very small group of offenders, for whom preventive detention was necessary. As was said, at pp. 339 and 347 S.C.R.:

Not only has a diligent attempt been made to carefully define a very small group of offenders whose personal characteristics and particular circumstances militate strenuously in favour of preventive incarceration, but it would be difficult to imagine a better tailored set of criteria that could effectively accomplish the purposes sought to be attained.

There can be no doubt that detention per se, and preventive detention in particular, is not cruel and unusual in the case of dangerous offenders, for the group to whom the legislation applies has been functionally defined so as to ensure that persons within the group evince the very characteristics that render such detention necessary.

Moreover, implicit in my discussion of the s. 12 issue is the common sense conclusion that the criteria in Part XXI are anything but arbitrary in relation to the objectives sought to be attained; they are clearly designed to segregate a small group of highly dangerous criminals posing threats to the physical or mental well-being of their victims.

[42] As indicated, the trial judge in this case referred to both intractability and the small group of offenders targeted by the legislation.

The 1997 legislation

[43] The 1997 legislation made several important changes to the dangerous offender scheme. The new s. 761(1) extended the period before a first parole hearing from three years to seven [page417] years for a person found to be a dangerous offender. By virtue of the new s. 753(4), the imposition of an indeterminate prison term was mandatory once a person had been designated a dangerous offender. The court no longer had discretion at both the dangerous offender and penalty stages as described in Lyons. Finally, the legislation added a new category of long-term offenders. Thus, the trial judge could exercise the discretion not to find the person a dangerous offender, although they met the s. 753 definition, and instead find the person to be a long-term offender as defined in s. 753.1. While ss. 753 and 753.1 had some common elements, the important distinction was that the long-term offender was a person for whom there was "a reasonable possibility of eventual control of the risk in the community". A person found to be a long-term offender was not subject to indeterminate detention in prison. Rather, after serving a conventional sentence of at least two years, the person would be subject to a community supervision order not to exceed ten years.

[44] The leading case on the interpretation of the 1997 legislation is R. v. Johnson, [2003] 2 S.C.R. 357, [2003] S.C.J. No. 45, 2003 SCC 46. Much of the decision turned on the application of the new long-term offender provisions but the court made some observations on the operation of the scheme generally. Importantly, the court held that the proper interpretation of the scheme was, as I have said above, to give the offender access to the benefit of the long-term offender designation by exercising the discretion not to find the person to be a dangerous offender although they met the dangerous offender definition. As the court explained, at para. 24:

The proposition that a court is under a duty to declare an offender dangerous in each circumstance in which the statutory criteria are satisfied is in direct conflict with the underlying principle that the sentence must be appropriate in the circumstances of the individual case. A rigid rule that each offender who satisfies the statutory criteria in s. 753(1) must be declared dangerous and sentenced to an indeterminate period of detention undermines a sentencing judge's capacity to fashion a sentence that fits the individual circumstances of a given case. Thus, rather than suggesting that a sentencing judge is under an obligation to find an offender dangerous once the statutory criteria are met, the principles and purposes underlying the Criminal Code's sentencing provisions actually favour a sentencing judge's discretion whether to declare an offender dangerous who has met the statutory criteria in s. 753(1).

[Emphasis in original]

[45] But, the availability of the new long-term offender penalty removed intractability as a necessary element of the dangerous offender definition. This was because under the 1997 scheme a person could be eligible for a long-term offender disposition [page418] notwithstanding the person met both definitions of dangerous offender and long-term offender.

[46] The court made clear, in paras. 30-32, that a person who fit the dangerous offender definition could nevertheless be found to be a long-term offender. For example, at para. 30:

In order for the sentencing sanctions available pursuant to the long-term offender provisions to reduce the threat associated with an offender who satisfies the dangerous offender criteria to an acceptable level, it must be possible for the same offender to satisfy both the dangerous offender criteria and the long-term offender criteria.

The court made a similar point, at para. 44:

As we have discussed, a sentencing judge should declare the offender dangerous and impose an indeterminate period of detention if, and only if, an indeterminate sentence is the least restrictive means by which to reduce the public threat posed by the offender to an acceptable level. The introduction of the long-term offender provisions expands the range of sentencing options available to a sentencing judge who is satisfied that the dangerous offender criteria have been met. Under the current regime, a sentencing judge is no longer faced with the stark choice between an indeterminate sentence and a determinate sentence. Rather, a sentencing judge may consider the additional possibility that a determinate sentence followed by a period of supervision in the community might adequately protect the public.

(Emphasis added)

[47] I point out in passing this sentence from para. 34 of Johnson: "No sentencing objective is advanced by declaring an offender dangerous and then imposing a determinate sentence." This principle has been unequivocally abandoned in the 2008 legislation to which this appellant is subject.

[48] Finally, it would appear that this court, in considering the 1997 legislation in R. v. D. (F.E.) (2007), 84 O.R. (3d) 721, [2007] O.J. No. 1278, 2007 ONCA 246, at paras. 44-48, also held that intractability was not an element of the dangerous offender definition. See, for example, paras. 45-48:

Further, in the light of Johnson, I am not persuaded that the cases on which the respondent relies provide sound authority for holding that there should be an onus on the Crown in dangerous offender applications to prove beyond a reasonable doubt that there is no reasonable possibility of eventual control of the risk that an offender presents in the community. The respondent relies on the following cases that have held that such an onus exists: R. v. B.R.B. (2002), 2002 BCCA 420, 174 B.C.A.C. 243; R. v. A.P.A. (2003), 2003 BCCA 376, 184 B.C.A.C. 268; R. v. Lemaigre (2004), 2004 SKCA 125, 189 C.C.C. (3d) 492 (Sask. C.A.); R. v. J.J.M. (2006), 2006 NBCA 39, 208 C.C.C (3d) 312 (N.B.C.A); R. v. D.B.B. (2004), 62 W.C.B. (2d) 247 (Ont. S.C.J.); and R. v. R.M. (2005), 68 W.C.B. (2d) 78 (Ont. S.C.J.).

To the extent that these cases articulate a rationale, it appears to be rooted in jurisprudence interpreting the dangerous offender provisions as requiring the Crown to prove beyond a reasonable doubt that an offender's pattern of conduct is substantially or pathologically intractable in order to [page419] satisfy the dangerous offender criteria and equating that requirement with the impugned burden of proof: see e.g. B.R.B. at para. 11.

This was the approach taken by British Columbia Court of Appeal in R. v. Johnson (2001), 2001 BCCA 456, 159 B.C.A.C. 255. At para. 58, the court referred to the following comments made by La Forest J. in R. v. Lyons, [1987] 2 S.C.R. 309 at para. 43, concerning s. 687 of the Criminal Code, R.S.C. 1970, c. C-34, Part XXI, a predecessor to the current s. 653:

Also explicit in one form or another in each subparagraph of s. 687 is the requirement that the court must be satisfied that the pattern of conduct is substantially or pathologically intractable.

At para. 72 of its decision in Johnson, supra, the British Columbia Court of Appeal interpreted these comments as meaning that treatment prospects had to be considered at the designation stage and that it would therefore be illogical to require the sentencing judge to examine treatment prospects once again as part of a residual discretion not to declare an offender dangerous. However, this approach was not adopted by the Supreme Court of Canada in its decision in Johnson. Accordingly, I am not persuaded that I should follow the authorities on which the respondent relies.

[49] In D. (F.E.), Simmons J.A. also points out that after the Johnson case, the British Columbia Court of Appeal itself seems to have abandoned the intractability requirement as an element of the dangerous offender designation in R. v. Wormell, [2005] B.C.J. No. 1289, 2005 BCCA 328, 198 C.C.C. (3d) 252, leave to appeal to S.C.C. refused [2005] S.C.C.A. No. 371. See, also, R. v. Simon, [2008] O.J. No. 3072, 2008 ONCA 578, 176 C.R.R. (2d) 68 and R. v. Moosomin, [2008] S.J. No. 812, 2008 SKCA 169, 239 C.C.C. (3d) 362.

[50] As noted above, the trial judge also referred to the decision of the Alberta Court of Appeal in Neve, an important case interpreting the 1997 legislation. There is a complication in applying Neve because the accused in that case was sentenced under the 1977 legislation but her appeal was heard after the 1997 amendments came into force. Although Neve's predicate offences were committed before 1997, the court held that the appeal was governed in part by the new, more favourable, legislation by virtue of s. 44 of the Interpretation Act, R.S.C. 1985, c. I-21. But, Neve was also entitled to the benefit of those parts of the 1977 regime that were more favourable to her. The result, according to the Neve court, was that the court had discretion not to find the person to be a dangerous offender even if she met the s. 753 definition and further discretion not to impose an indeterminate sentence even if the person was declared to be a dangerous offender and to impose instead a conventional sentence. [page420]

[51] In Neve, at para. 113, the court discussed the behavioural pattern requirement and the restraint element in the s. 753(a) (now s. 753(1)(a)) definition:

Because the pattern of past behaviour must be repetitive (s. 753(a)(i)) or persistent (s. 753(a)(ii)), evidence of one episode of violence or aggression will not suffice: Lyons, supra. This does not mean that it will always be necessary that the offender have a lengthy history of violence or aggression. To the contrary. Depending on the facts, a pattern sufficient to form the basis for predicting future behaviour which threatens others may be found on very few such incidents. [Indeed, under s. 753(a)(iii), which is not relevant here, there is no need for a pattern; one brutal attack may be sufficient.] Generally, however, in order to meet the requirements of a pattern, the fewer the incidents, the more similar they must be: Langevin, supra. 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.).

(Underlining and brackets in original; italics added)

The 2008 legislation

[52] In my view, any doubt that intractability is not a necessary element to find a person to be a dangerous offender has been removed by the 2008 amendments. This legislation removes the discretion that existed under the 1997 legislation not to find a person to be a dangerous offender even though the person came within the definition in s. 753(1). That discretion has been replaced by a highly structured discretion in s. 753(4) and (4.1). Those provisions are as follows:

753(4) If the court finds an offender to be a dangerous offender, it shall

(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

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

(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. [page421]

[53] Thus, the legislation contemplates that a person could be declared a dangerous offender because they meet the definition but nevertheless be given a disposition including a long-term supervision order or a conventional sentence. However, these two options are only available if an indeterminate sentence is not required to protect the public from the commission of murder or a serious personal injury offence. If a person, to be declared a dangerous offender, had to not only meet the statutory definition but display a pattern of conduct that was pathologically intractable, that person could, it seems to me, rarely, if ever, be eligible for a long-term supervision order or a conventional sentence.

[54] Further, while I agree that the legislation must be interpreted in the spirit of Lyons and bearing in mind the sentencing principles and objectives in ss. 718, 718.1 and 718.2, it is apparent that Parliament intended a broader group of offenders be declared dangerous offenders than was envisaged in Lyons, where the court spoke of "a very small group of offenders". While the legislation is still narrowly targeted to a small group of offenders, that Parliament intended to broaden the group of persons to be labelled as dangerous offenders is apparent from the legislative reversal of the principle in Johnson referred to earlier that no sentencing objective is advanced by declaring an offender dangerous and imposing a determinate sentence. I point out that there has been no constitutional challenge to the 2008 regime in this case.

[55] Accordingly, it is of no assistance in interpreting the legislation to go beyond the words of the definition in s. 753(1) and introduce principles of intractability or attempt to predict the number of offenders that Parliament intended to bring within the legislative scheme.

Pattern of repetitive behaviour

[56] In R. v. Hogg, [2011] O.J. No. 5963, 2011 ONCA 840, this court considered the meaning of the phrase "a pattern of repetitive behaviour" in s. 753(1)(a)(i). Despite the date of this court's judgment, given the dates of the offences, it would seem that the case was decided under the 1997 legislation. The court referred with approval to decisions of the British Columbia Court of Appeal and the Newfoundland Court of Appeal in R. v. Dow, [1999] B.C.J. No. 569, 1999 BCCA 177, 134 C.C.C. (3d) 323; R. v. Pike, [2010] B.C.J. No. 1803, 2010 BCCA 401; and R. v. Newman, [1994] N.J. No. 54, 115 Nfld. & P.E.I.R. 197 (C.A.), and concluded as follows, at paras. 40 and 43:

To summarize, the pattern of repetitive behaviour that includes the predicate offence has to contain enough of the same elements of unrestrained [page422] dangerous conduct to be able to predict that the offender will likely offend in the same way in the future. This will ensure that the level of gravity of the behaviour is the same, so that the concern raised by Marshall J.A. [in Newman] -- that the last straw could be a much more minor infraction -- could not result in a dangerous offender designation. However, the offences need not be the same in every detail; that would unduly restrict the application of the section.

Although the pattern differed in the detail of how the offences were carried out, the predicate and past offenses still represented a pattern of repetitive violent behaviour that made it likely that the appellant would continue to commit similar acts of violence in order to have sexual gratification in the future. I would not give effect to this ground of appeal.

[57] In Hogg, at para. 39, the court also made an important point about the number of offences. Referring to Jones (also discussed in Neve, at para. 113, quoted above), the court suggested the need for remarkable similarity where only two offences were involved but that "fewer exact similarities were needed" where four offences were involved.

Application to this case

[58] In my view, the trial judge erred in law in finding that the pattern required by s. 753(1)(a)(i) or (ii) was not made out. For convenience, I repeat the definitions of those two paragraphs:

(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[.]

[59] In my view, the trial judge erred in law in finding that the pattern of behaviour was not made out because the incidents were spontaneous and did not demonstrate intractability. I refer to the following, paras. 68-69, from the trial judge's reasons:

In none of the cases did the offender pursue the victim for the purpose of inflicting violence on him, as all the incidents can be described as "spontaneous occurrences" and thus it cannot be said that they were serial offences as is the case in many dangerous offender applications.

None of the injuries inflicted on the victims were life threatening or intended to be so. The injuries in all cases were inflicted in a different manner.

[60] First, the trial judge erred in finding that since the offences were "spontaneous occurrences" they could not be said [page423] to be "serial offences". There is no requirement that the offences be serial offences. Indeed, the fact that the various offences were spontaneous strongly tells in favour of a pattern in the sense of both paras. (i) and (ii). Looking particularly at para. (i), that the appellant was capable of spontaneously acting with such great violence as exhibited in the four offences demonstrates a failure to restrain his behaviour and a likelihood of causing death or injury to other persons through failure in the future to restrain his or her behaviour.

[61] Second, for reasons set out above, the trial judge also erred in requiring that the Crown demonstrate a relatively high level of intractability. The trial judge referred to this requirement on two occasions, at paras. 70 and 74:

I find that the conduct of Mr. Szostak in connection with the offences relied upon by the Crown does not demonstrate the relatively high level of intractability required to find that the behaviour constitutes a pattern of conduct contemplated by s.753(1)(a)(i) and (ii).

Also explicit in one form or another in each subparagraph of s. 753 is the requirement that the court must be satisfied that the pattern of conduct is substantially or pathologically intractable (see R. v. Lyons supra para. 43 [p. 338]). That is why most convicted criminals are not at real risk of being designated as dangerous offenders even where they could be said to represent a danger to public safety. The legislation is intended to capture a small group of highly dangerous criminals rather than snare [a] large group of common recidivists (see R. v. Neve supra at para. 79).

[62] As I have said, the present legislation does not require intractability as a necessary element for a finding of dangerous offender. Intractability will be an important consideration for the sentencing judge in deciding what disposition to impose under s. 753(4) and (4.1).

[63] In my view, but for these errors in law, the trial judge would have found the appellant to be a dangerous offender. The appellant's repeated resort to force that caused serious injuries shows the necessary pattern under either paras. (i) or (ii). There were sufficient relevant similarities to demonstrate the pattern called for in these paragraphs. As the court said in Neve, at para. 113: "Similarity . . . can be found not only in the types of offences but also in the degree of violence or aggression threatened or inflicted on the victims." Over a very short period, four years, the appellant seriously injured three different people. He resorted to weapons in three of the offences and inflicted serious injuries. The trial judge's statement, at para. 69 of his reasons, that "[n]one of the injuries inflicted on the victims were life threatening or intended to be so", places too high a burden on the Crown [page424] and fails to reflect the gravity of the offences. Breaking a beer bottle over a person in a bar because of a dispute about standing in line; slashing a person with a pair of scissors because the appellant mistakenly thought the victim had some time earlier been involved in an altercation with him; beating an acquaintance so badly that he needed to go to hospital; and a year later slashing that same person with a knife across the face causing permanent injury demonstrate the very type of pattern intended to be captured by paras. (i) and (ii).

[64] I would set aside the sentence imposed by the trial judge and, pursuant to s. 759(3)(a)(i), find that the offender is a dangerous offender. The question of further disposition poses some difficulty. Crown counsel concedes that it would not be appropriate to impose a sentence of indeterminate detention. It is apparent from the dialogue between counsel and the trial judge that the trial judge mistakenly was of the view that a finding of long-term offender was not available, even if the appellant was not found to be a dangerous offender. The trial judge appears to have been of the view that s. 753.1 applied only to sexual offences. This is a misreading of the section. The long-term offender designation is mandatory for certain sex offenders in the circumstances set out in s. 753.1(2), but this does not take away from the ability to find a person to be a long-term offender under the general provision 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.

[65] In the result, the trial judge gave no consideration to the possibility of a long-term supervision disposition and went right to the question of the length of a conventional sentence. The findings of fact by the trial judge, based on his acceptance of the evidence of Dr. Chaimowitz and Dr. Mamak, strongly suggest that the appellant should be subject to a long-term supervision order:

-- the appellant may be classed as a violent offender;

if the necessary rehabilitation is not carried out, the appellant is likely to re-offend in a violent manner; [page425]

the appellant has spent a good part of his adulthood running into difficulties with the law with two prior serious assaults on his record;

-- he can be quite impulsive and aggressive;

while not a psychopath, he has a history of antisocial behaviours meeting the criteria for antisocial personality disorder;

he has had some substance abuse issues in the past but has no active mental disorders such as psychotic disorders, major mood disorders or anxiety disorders;

the appellant has lived in a pro-social world in the now distant past and is able to easily articulate a pro-social view of the world and a potential path for him that avoids the criminal activities he has engaged in over his last several years;

the appellant has not completed treatment programs beside anger management courses at the Hamilton-Wentworth Detention Centre during his recent incarceration;

risk reduction strategies that would be useful would be to ensure that he is absolutely abstinent from drugs and alcohol as they are accelerants to violence;

if he were to be released into the community, it would be important that he stay abstinent from drugs and alcohol and should be closely monitored in the community to ensure the avoidance of antisocial peers or colleagues as well as providing sufficient oversight to reduce the likelihood of him acting out in antisocial fashion;

absent intervention, the appellant runs the risk of causing harm to others and posing a threat to life, safety and physical as well as mental well-being;

should the appellant receive psychological attention, including anger management, substance abuse treatment, psychological oversight and monitoring, it is reasonable to expect that there may be an opportunity for substantial control of the risk in the community.

[66] These findings of fact are entitled to deference and while they show that a sentence of two years or more is required and that there is a substantial risk that the appellant will re-offend, these findings also support the view that there is a reasonable possibility of eventual control of the risk in the community. [page426]

[67] On the other hand, in my view, this is not a case for a conventional sentence. Such a sentence would not adequately protect the public and would therefore be inconsistent with s. 753(4.1). The expert and other evidence shows that the appellant requires a lengthy period of supervision and monitoring to protect the public. A conventional sentence, even one followed by strict parole supervision would, on the evidence, not be sufficient. In my view, after taking into account the pre-sentence custody, a sentence of an additional five years' imprisonment followed by a ten-year supervision order would be appropriate.

Disposition

[68] Accordingly, I would allow the Crown appeal, set aside the conventional sentence imposed by the trial judge and impose a total sentence of five years' imprisonment followed by a ten-year supervision order. To arrive at the sentence of five years, I would impose sentence as follows:

The ancillary orders made by the trial judge will stand.

Appeal by accused dismissed; appeal by Crown allowed. [page427]

APPENDIX -- Section 753 of the Criminal

Code

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, 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.

(1.1) If the court is satisfied that the offence for which the offender is convicted is a primary designated offence for which it would be appropriate to impose a sentence of imprisonment of two years or more and that the offender was convicted previously at least twice of a primary designated offence and was sentenced to at least two years of imprisonment for each of those convictions, the conditions in paragraph (1)(a) or (b), as the case may be, are presumed to have been met unless the contrary is proved on a balance of probabilities.

(2) An application under subsection (1) must be made before sentence is imposed on the offender unless

(a) before the imposition of sentence, the prosecutor gives notice to the offender of a possible intention to make an application under section 752.1 and an application under subsection (1) not later than six months after that imposition; and

(b) at the time of the application under subsection (1) that is not later than six months after the imposition of sentence, it is shown that [page428] relevant evidence that was not reasonably available to the prosecutor at the time of the imposition of sentence became available in the interim.

(3) Notwithstanding subsection 752.1(1), an application under that subsection may be made after the imposition of sentence or after an offender begins to serve the sentence in a case to which paragraphs (2)(a) and (b) apply.

(4) If the court finds an offender to be a dangerous offender, it shall

(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

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

(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

(4.2) If the application is made after the offender begins to serve the sentence in a case to which paragraphs (2) (a) and (b) apply, a sentence imposed under paragraph (4)(a), or a sentence imposed and an order made under paragraph 4(b), replaces the sentence that was imposed for the offence for which the offender was convicted.

(5) If the court does not find an offender to be a dangerous offender,

(a) the court may treat the application as an application to find the offender to be a long-term offender, section 753.1 applies to the application and the court may either find that the offender is a long-term offender or hold another hearing for that purpose; or

(b) the court may impose sentence for the offence for which the offender has been convicted.

End of Document