Her Majesty the Queen v. K.P.

[Indexed as: R. v. P. (K.)]

Ontario Reports

Court of Appeal for Ontario

K.N. Feldman, van Rensburg and Thorburn JJ.A.

August 27, 2020

152 O.R. (3d) 145 | 2020 ONCA 534

Case Summary

Criminal law — Dangerous offenders — Indeterminate sentence — Accused convicted of multiple offences after attacking domestic partner — Accused's criminal history indicated pattern of violent behaviour — Sentencing judge accepting joint submission that accused satisfied dangerous offender criteria — Judge imposing indeterminate sentence — Appeal dismissed — Judge properly engaged in individualized assessment of relevant factors without relying on a presumption of an indeterminate sentence or failing to consider treatment options — Criminal Code, R.S.C. 1985, c. C-46, s. 753(1) (a).

The appellant attacked his domestic partner. He pleaded guilty to aggravated assault, assault with a weapon and choking for the purposes of aggravated assault. The trial judge also convicted the appellant of attempted murder and overcoming resistance to attempt murder by choking. The appellant's criminal history disclosed a pattern of assaultive behaviour including against two previous intimate partners, possession of weapons, failure to comply with court orders and an escalation of serious violence. Psychiatric evidence indicated that he suffered from antisocial personality disorder and borderline personality disorder and that he was at a high risk to commit a violent act of some kind. The sentencing judge agreed with a joint submission that the appellant satisfied the dangerous offender criteria in that the predicate offences were serious personal injury offences, that the offences were part of a pattern of repetitive behaviour, that the appellant exhibited a pattern of persistent aggressive behaviour showing indifference to consequences to others and that the offences were so brutal that it would be reasonable to conclude that the appellant's behaviour was unlikely to be inhibited by normal standards of restraint. The judge imposed an indeterminate sentence. The appellant appealed.

Held, the appeal should be dismissed.

The sentencing judge did not create a presumption in favour of an indeterminate sentence and did not fail to acknowledge the treatment options. She engaged in a rigorous analysis of the evidence and found as a fact that there was no reasonable possibility of eventual control of the appellant in the community. She considered numerous factors, including the appellant's background; lengthy criminal history with particular emphasis on the pattern of violent offences inflicted on domestic partners; history of substance abuse; lack of empathy; history of unsuccessful treatment; and the psychiatric opinions. She also identified the specific frailties surrounding a proposed plan of supervision. Therefore, the lesser alternative of a determinate sentence followed by a long-term supervision order was not viable. Her analysis did not rely on a presumption that an indeterminate sentence applied, nor was she uncertain about the viability of any lesser measure. She properly engaged in an individualized assessment of all the relevant factors and circumstances to determine a fit sentence. The public would not have been adequately protected if anything less than an indeterminate sentence was imposed.

R. v. Boutilier, [2017] 2 S.C.R. 936, [2017] S.C.J. No. 64, 2017 SCC 64, consd

Other cases referred to

R. v. L. (G.) (2007), 87 O.R. (3d) 683, [2007] O.J. No. 2935, 2007 ONCA 548, 226 O.A.C. 148, 225 C.C.C. (3d) 20, 75 W.C.B. (2d) 327 [leave to appeal to S.C.C. refused [page146] [2008] S.C.C.A. No. 39]; R. v. Radcliffe, [2017] O.J. No. 1060, 2017 ONCA 176, 137 W.C.B. (2d) 390, 347 C.C.C. (3d) 3 [leave to appeal to S.C.C. refused [2017] S.C.C.A. No. 274]; R. v. Sawyer (2015), 127 O.R. (3d) 686, [2015] O.J. No. 4652, 2015 ONCA 602, 337 O.A.C. 285, 328 C.C.C. (3d) 523, 2015 CarswellOnt 13511, 126 W.C.B. (2d) 97; R. v. Sipos, [2014] 2 S.C.R. 423, [2014] S.C.J. No. 47, 2014 SCC 47; R. v. Severight, [2014] A.J. No. 45, 2014 ABCA 25, 306 C.C.C. (3d) 197, 93 Alta. L.R. (5th) 356, 566 A.R. 344, 111 W.C.B (2d) 383 [leave to appeal to S.C.C. refused [2014] S.C.C.A. No. 184]

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, ss. 752.1(2), 753(1) [as am.], (a), (4), (4.1)

APPEAL from an indeterminate sentence imposed on December 8, 2016 by J.E. Kelly J. of the Superior Court of Justice.

Alexander Ostroff, for appellant.

Emily Marrocco, for respondent.

The judgment of the court was delivered by

THORBURN J.A.: —

A. Overview

[1] This is an appeal from the indeterminate sentence imposed on the appellant following his conviction for attempted murder and choking to overcome resistance for the purposes of attempting to murder J.M., a woman with whom he was in an intimate relationship.

[2] On the hearing before the sentencing judge, it was agreed that the appellant is a dangerous offender. The only issue was whether there was a reasonable expectation that the appellant's risk could be controlled in the community under a long-term supervision order such that a determinate sentence would adequately protect the public.

[3] After a careful review of the evidence, the sentencing judge determined that it could not.

[4] For the reasons that follow, I would dismiss the appeal.

B. Issues on Appeal

[5] The appellant argues that the sentencing judge should have ordered a determinate sentence followed by a long-term supervision order, not an indeterminate sentence.

[6] The appellant claims the sentencing judge erred by

(a) presuming she was required to impose an indeterminate sentence; and/or

(b) concluding there was no reasonable expectation that a determinate sentence and long-term supervision order would adequately protect public safety. [page147]

[7] The appellant also notes that since the release of the sentencing judge's decision, the Supreme Court of Canada rendered its decision in R. v. Boutilier, [2017] 2 S.C.R. 936, [2017] S.C.J. No. 64, 2017 SCC 64, which clarified that the imposition of an indeterminate sentence is appropriate only where it is the least restrictive means to protect the public.

C. The Statutory Scheme and Legal Interpretation

(1) Dangerous offender designation stage

[8] Section 753(1) of the Criminal Code, R.S.C. 1985, c. C-46 sets out the criteria that must be satisfied before a court finds an offender dangerous. This is referred to as the "designation stage". Section 753(1) provides that:

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 . . . 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 . . . 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. [page148]

(2) Penalty stage -- Imposing an appropriate sentence

[9] Once a person is designated a dangerous offender, the sentencing judge moves on to consider the appropriate sentence -- the "penalty stage". Section 753(4) of the Criminal Code provides three options for sentencing:

(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.

[10] Section 753(4.1) provides guidance on how the sentencing judge should exercise discretion when choosing among the three options:

(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.

[11] To determine whether a lesser measure will adequately protect the public, there must be evidence before the sentencing judge that the dangerous offender can be safely released into the community. However, as the majority of the Supreme Court of Canada held in Boutilier, at para. 76, s. 753(4.1) "does not create a presumption that indeterminate detention is the appropriate sentence".

[12] Section 753(4.1) requires the sentencing judge to engage in a thorough examination of all the evidence presented during the hearing to determine the fittest sentence: Boutilier, at para. 76. The sentencing judge must consider whether there is a "reasonable expectation" that a lesser measure -- a conventional fixed-term sentence or a fixed-term sentence of at least two years followed by a long-term supervision order -- will adequately protect the public against the risk that the offender will commit murder or further serious personal injury offences: Boutilier, at para. 77. The sentencing judge must exhaust those lesser measures before imposing an indeterminate sentence. The majority further explained that indeterminate sentences should be limited to "habitual criminals who pose a tremendous risk to public safety": Boutilier, at para. 77.

[13] When determining the appropriate sentence to manage the risk to public safety, the sentencing judge may consider treatability: [page149] Boutilier, at para. 45. In assessing the manageability and treatability of the offender's behaviour, the sentencing judge may consider evidence, such as treatment avoidance, failure to respond to treatment, breaches of court orders, lack of motivation, continued involvement in high-risk conduct, serious personality disorder and elevated likelihood of violent recidivism: R. v. Radcliffe, [2017] O.J. No. 1060, 2017 ONCA 176, 347 C.C.C. (3d) 3, at paras. 64-65, leave to appeal to S.C.C. refused [2017] S.C.C.A. No. 274.

[14] Where the management of risk requires more tools than are available under the parole authorities, an indeterminate sentence is reasonable. Risk management evidence must demonstrate a prospect of effective supervision, within the means and capacity of the parole authorities: R. v. Severight, [2014] A.J. No. 45, 2014 ABCA 25, 566 A.R. 344, at paras. 40-43, leave to appeal to S.C.C. refused [2014] S.C.C.A. No. 184. As this court has explained, "'real world' resourcing limitations cannot be ignored or minimized where to do so would endanger public safety": R. v. L. (G.) (2007), 87 O.R. (3d) 683, [2007] O.J. No. 2935, 2007 ONCA 548, at para. 70, leave to appeal to S.C.C. refused [2008] S.C.C.A. No. 39.

(3) Standard of review

[15] An appellate court may review an indeterminate sentence for legal error and reasonableness, but the credibility and factual findings made in determining the appropriate sentence are entitled to deference: R. v. Sawyer (2015), 127 O.R. (3d) 686, [2015] O.J. No. 4652, 2015 ONCA 602, at para. 29. While the standard of review is "somewhat more robust" than other sentence appeals, it is not a hearing de novo: R. v. Sipos, [2014] 2 S.C.R. 423, [2014] S.C.J. No. 47, 2014 SCC 47, at para. 26.

D. The Evidence

(1) The circumstances of the offence

[16] On December 24, 2011, the appellant's domestic partner told the appellant that she did not wish to have a drink with him. The appellant had consumed approximately seven shots of alcohol and had been smoking marijuana.

[17] The appellant became enraged. He grabbed his partner by the throat, choked her and stabbed her in the abdomen with a knife.

[18] At trial, the appellant explained that before he grabbed her by the throat, he "lost it" and "had no control". After he choked and stabbed her, he followed her into the bedroom and continued ranting, still holding the knife. [page150]

[19] The appellant's partner climbed through a small window to escape and fell 25 feet to the ground. She suffered serious and long-lasting physical and emotional consequences from the incident. At the time of her victim impact statement in 2014, she stated that she was still in constant, "barely tolerable" pain, on 20 painkillers, suffering PTSD, requiring in-home paramedical care and using a wheelchair. She stated that the appellant's actions had "altered her life forever".

(2) The appellant's background

[20] The appellant is now 47 years old. He was born and raised in Newfoundland. He has lived a nomadic lifestyle, living in various parts of the country starting at a young age. He maintains contact with his mother but has no relationship with his biological father, step-father or siblings. The appellant does not have close friends or long-term friendships.

[21] When the appellant was two years old, his mother separated from his biological father, who had problems with alcohol use and was violent when intoxicated.

[22] The appellant began drinking alcohol and smoking marijuana at age ten. He dropped out of school at age 15. He has spent considerable time in homeless shelters and group homes, living on social assistance. Generally, his history demonstrates that any employment did not last long unless he was supervised.

[23] His longest term of employment was one year removing asbestos while on parole.

(3) The appellant's criminal history

[24] The appellant has approximately 20 convictions dating back to the late 1980s. The convictions disclose a pattern of assaultive behaviour, possession of weapons, failure to comply with court orders and an escalation of serious violence.

[25] In particular, there is a pattern of violence against intimate partners. While there were no allegations of assaultive behaviour related to his first domestic relationship, all three of his most recent relationships resulted in convictions.

[26] In 1996, his second domestic relationship resulted in a conviction for assault, which arose after an argument about his cannabis use and unemployment. He received a suspended sentence of one year and probation.

[27] Also in 1996, the appellant was convicted of possession of a weapon after being rejected by a love interest. As a result of the rejection, he took a shotgun and ammunition and walked into the bush, claiming he was suicidal. He received a suspended sentence and probation. [page151]

[28] The appellant's third domestic relationship resulted in a 2006 conviction for attempted murder. The appellant and his partner lived together for approximately two years. When his partner told the appellant she wanted to leave, he confronted her with a knife and choked her to the point of dizziness. She moved out two weeks later, and he threatened suicide.

[29] A couple weeks after she left, the appellant asked her to return to the apartment to help him look for their shared cat. His partner attended with her sister, which made the appellant angry. The appellant said he had a surprise for his partner, he then took a hammer from a duffle bag and said he was going to kill them both. He struck his partner repeatedly in the head. At one point, he armed himself with a knife and tried to stab her in the stomach. She grabbed the knife and sustained severe cuts to her fingers.

[30] The appellant was sentenced to six years and ten months in the penitentiary. He was released on his statutory release date, June 12, 2008.

[31] The appellant's fourth domestic relationship led to the convictions in question, described above.

(4) Evidence of the psychiatrists

[32] Dr. Philip Klassen and Dr. Jeff McMaster are psychiatrists. Dr. Klassen conducted the assessment filed under s. 752.1(2) of the Criminal Code, while Dr. McMaster prepared an opinion report for the appellant.

(a) Alcohol and drug use

[33] Dr. Klassen diagnosed the appellant as likely suffering from alcohol and cannabis use disorder (in sustained full remission in a controlled setting). Dr. McMaster concurred.

[34] The appellant told Dr. Klassen he had been using both alcohol and cannabis since age ten, and cannabis daily since age 16. He characterized himself as having a mixed addiction issue, often using drugs and alcohol together. In addition, he told Dr. Klassen he had a history of using cocaine, amphetamines, opioids and MDMA.

(b) Information from former domestic partners

[35] Dr. Klassen also spoke to two of the appellant's former partners, and Dr. McMaster referred to these interviews in his report. The appellant's third partner described the appellant as controlling, jealous, dependent and paranoid. The appellant's fourth partner who was the victim in the predicate offences, also described the appellant as "manipulative and controlling". She indicated that he repeatedly threatened suicide during their [page152] relationship, accused her of lying, behaved impulsively and did not appear to feel guilt or remorse.

(c) Psychiatric history and diagnoses

[36] The appellant says he has suffered from depression throughout his life and has a long history of suicidal ideation and panic symptoms.

[37] Both Drs. Klassen and McMaster diagnosed him as suffering from antisocial personality disorder and borderline personality disorder.

[38] Dr. Klassen indicated that there is no definitive treatment for antisocial personality disorder. The focus is instead on specific aspects of offending behaviour or paths to re-offending.

[39] Both psychiatrists agreed that impairment from borderline personality disorder wanes with advancing age, and that dialectical behaviour therapy can be an effective treatment. However, this therapy is not available in the Correctional Services of Canada.

(d) Lack of success with treatment

[40] After his 2006 attempted murder conviction, the appellant underwent a risk assessment. He described the offences involving the sisters as an "isolated event", downplayed the impact, and it was not clear to the assessor that he felt true remorse.

[41] In 2007, he participated in moderate-intensity substance abuse programming for two months. Despite participating in the program, he indicated that he would return to using marijuana because he needed it to "self-medicate". He felt that one of the contributing factors leading to the attempted murder of his third partner was that he had not smoked marijuana before the incident. He also completed a Partner Assault Program, from which he said he did not learn much.

[42] Once on parole in June 2008, he participated in a National Moderate Intensity Family Violence Program. The parole office provided a report, which indicated that the appellant: did not think he needed the program; did not show significant effort in relation to assignments; had little insight into his feelings of jealousy; became argumentative and unwilling to accept information; and was unwilling to acknowledge any potential problems in dealing with negative emotions when involved in a relationship.

[43] Overall, the appellant showed little progress. Dr. Klassen described the appellant's performance in the family violence prevention program as "one of the poorer outcomes I have seen". [page153]

[44] In 2009, the appellant filled out a National Family Violence Prevention Test Battery, which involved pre-treatment and post-treatment tests. Although there was an improvement from the pre-treatment assessment, the post-treatment ratings by professional staff indicated ongoing concern regarding empathy for his victims and being able to identify relapse prevention concepts.

(e) Risk assessments

[45] Both psychiatrists described the appellant as at high risk to commit a violent act of some kind, with concerns about severe violence. They scored him similarly on the actuarial risk assessment tools, as follows:

-- PCL-R (Psychopathy Checklist-Revised): Dr. Klassen and Dr. McMaster found that the appellant scored 29 out of 40. This score suggests difficulties with general and violent recidivism and with treatment responsiveness. It places the appellant in the 80th percentile with respect to a reference sample of North American offenders.

-- VRAG (Violence Risk Appraisal Guide): Dr. Klassen found that the appellant scored 13 -- 58 per cent of similar scoring individuals reoffended violently over ten years in the community. Dr. McMaster found that the appellant scored 16. In that category, 55 per cent reoffended violently within seven years and 64 per cent within ten years.

-- ODARA (domestic assault risk assessment tool): Dr. Klassen put the appellant in the highest risk category. Among those with a similar score, 70 per cent committed a further assault. Dr. McMaster did not conduct an ODARA assessment.

-- HCR-20 (violent recidivism assessment tool): Dr. Klassen scored the appellant 22-33 out of 40, meaning that he was at a moderately high to high risk of re-offending on release from the penitentiary. Dr. McMaster scored the appellant 28-33 out of 40, meaning he was at "high risk" of reoffending.

[46] In sum, Dr. Klassen described the appellant as at moderately high risk of violent recidivism and likely at high risk of domestic violence recidivism. He opined that imminence, frequency and severity were all live concerns: imminence because the appellant reoffended shortly after release from the penitentiary; frequency because the appellant would likely engage in repeat violence; and severity given the history of serious offences.

[47] In sum, Dr. McMaster described the appellant as a high-risk offender with a "chronically elevated" risk of violence, [page154] which is highest in the context of intimate relationships. Dr. McMaster also opined that the appellant searches for a "perfect" woman, sets in motion an intense relationship to meet his dependency needs, but then causes the partner to want to leave the relationship because of his controlling behaviour and jealousy. When that occurs, the appellant engages in self-destructive behaviour, rage and threats of suicide, which, in keeping with his antisocial personality, evolve into thoughts and then acts of harming the partner.

(f) Possibility of treatment and risk management in the community

[48] Dr. Klassen indicated that the appellant's risk for violence, particularly in the domestic context, would need to be managed into his early to mid-50s, as he believed that risk would decline with age. He said that in order to obtain a reasonable expectation of risk control in the community, an extensive list of factors would need to be put in place which include

-- intense family violence/violence prevention treatment;

-- dialectical behavioural therapy for borderline personality traits;

-- substance abuse treatment, and regular urinalyses if released;

-- release into a community correctional centre or community release facility, where a high degree of structure and supervision can be imposed;

-- a structured daytime routine; and

-- no cohabiting with an intimate partner without the clear knowledge and consent of a supervisor.

[49] Dr. Klassen emphasized that "the big-ticket items are . . . the supervision and the access to intimate partners" because risk could escalate quickly. He also noted that if the appellant started to struggle with supervision, he might leave the jurisdiction.

[50] Dr. McMaster opined that given the appellant's history of violence, risk factors, and history of difficulties with supervision and treatment, high levels of risk management would be necessary if he were released into the community. Intensive treatment in custody, intensive supervision and further treatment in the community would be necessary to manage his risk. Some of his suggestions included, close supervision upon release, a night time [page155] curfew, close monitoring of relationships and a condition that he never cohabit with an intimate partner again.

[51] Dr. McMaster indicated that the risk flowing from the appellant's disorders may decline with age but "[i]t is unclear if any treatment success will translate to success (i.e. no recidivism) in the community absent further external controls on his behaviour". Dr. McMaster indicated that the appellant's poor motivation and readiness for treatment created a "prominent difficulty", and his history suggests he may not follow through with treatment.

[52] Dr. McMaster also recognized that enforcement could be difficult. He stated that while there "may" be time to intervene, "Mr. Payne may become involved with a vulnerable partner, who feels protective, or conversely, too scared to report any difficulties".

(5) The effect of a determinate versus an indeterminate sentence

[53] According to the representative of the Correctional Service of Canada ("CSC"), dangerous offenders serving determinate sentences are eligible for statutory release, with supervision on parole, after serving two-thirds of the sentence. Offenders serving indeterminate sentences, remain under the jurisdiction of the CSC for their entire lives, with eligibility for full parole after seven years, which may or may not be granted.

[54] Once in the community, offenders are initially seen a minimum of four times a month by a parole officer, and are instructed to advise the parole officer of any changes in conditions. The responsibility for reporting intimate relationships falls to the offender and only then does the parole officer contact the partner. The only way to supervise such relationships is either through self-report or contact by the parole officer with collateral contacts, such as a landlord.

[55] All offenders on parole are allowed out in the community during the day when there is no monitoring.

E. Analysis of the Sentencing Judge's Decision

(1) The predicate offences

[56] The sentencing judge first reviewed the predicate offences. At the beginning of the trial, the appellant pleaded guilty to aggravated assault, assault with a weapon and choking for the purposes of aggravated assault. The trial judge also convicted the appellant of the counts that proceeded to trial: attempted murder and overcoming resistance to attempt murder by choking. In coming to this conclusion, the trial judge had [page156] found that the appellant choked and then stabbed his partner in the abdomen in the context of a domestic dispute. She also found that he possessed the requisite intent to kill.

(2) Dangerous offender designation stage

[57] The sentencing judge agreed with the joint submission of both parties that the appellant satisfied the dangerous offender criteria under s. 753(1)(a). First, the predicate offences were serious personal injury offences. Second, the offences were part of a pattern of repetitive behaviour that the appellant could not control. Specifically, the sentencing judge pointed out the similarities between the predicate offences and the acts leading to the appellant's previous convictions for attempted murder and aggravated assault. In both cases, he lashed out violently after feeling scorned by his intimate partner. In both cases, there was a brutal and unprovoked attack using a knife. Third, the appellant exhibited a pattern of persistent aggressive behaviour showing a substantial degree of indifference with respect to consequences to other persons. Finally, the offences were so brutal that it would be reasonable to conclude that his behaviour is unlikely to be inhibited by normal standards of restraint.

(3)Penalty stage -- Imposing an appropriate sentence

[58] The only issue in dispute was the sentence to be imposed. Both parties agreed that a determinate sentence would not be appropriate. The appellant sought a sentence of nine years and four months in custody and a ten-year long-term supervision order. The Crown sought an indeterminate sentence, which the sentencing judge ultimately imposed.

[59] As I explained earlier, the appellant makes two arguments on appeal. First, the appellant claims the sentencing judge erred in her interpretation of s. 753(4.1) by creating a presumption in favour of an indeterminate sentence and that the indeterminate sentence she imposed was therefore unreasonable. Specifically, he takes issue with the following statement:

If the sentencing judge is uncertain whether there is a reasonable expectation that a lesser measure will adequately protect the public, then the sentencing judge should exercise discretion and impose an indeterminate sentence.

(Emphasis in original)

[60] Second, the appellant claims that there was evidence on the hearing to satisfy a reasonable expectation that the appellant could be treated for the underlying personality disorder. Specifically, the sentencing judge failed to acknowledge the evidence that [page157] (i) the appellant meaningfully participated in one-on-one therapy during parole; (ii) he had not previously been diagnosed with borderline personality disorder, and so, he had an undiagnosed, untreated personality disorder until he was assessed by Dr. Klassen in 2015; and (iii) there is evidence-based treatment for the disorder through dialectical behavioural therapy, though the proposed treatment was not offered by the Correctional Service of Canada.

[61] I disagree.

[62] The sentencing judge did not have the benefit of the Supreme Court of Canada's decision in Boutilier, which provides that s. 753(4.1) does not create a presumption that indeterminate detention is the appropriate sentence. As noted above, that decision was rendered after the imposition of the appellant's sentence.

[63] The sentencing judge's assertion that, "If the sentencing judge is uncertain whether there is a reasonable expectation that a lesser measure will adequately protect the public, then the sentencing judge should exercise discretion and impose an indeterminate sentence" must be seen in light of the review she conducted.

[64] It is clear from her review and assessment of the evidence that she did not impose an improper presumption or shift the burden of proof to the appellant. The sentencing judge in fact engaged in analysis that accords with Boutilier. She engaged in a rigorous analysis of the evidence and found as a fact that there was no reasonable possibility of eventual control of the appellant in the community. Therefore, the lesser alternative of a determinate sentence followed by a long-term supervision order was not viable. Her analysis does not rely on a "presumption" that an indeterminate sentence applied, nor was she "uncertain" about the viability of any lesser measure.

[65] The sentencing judge engaged in a thorough and rigorous examination of the evidence to determine the fittest sentence. She considered numerous factors, including: the appellant's background; lengthy criminal history, with particular emphasis on the pattern of violent offences inflicted on domestic partners; history of substance abuse, lack of empathy; history of unsuccessful treatment; and the opinions of the two psychiatrists, which were largely the same.

[66] Both psychiatrists alluded to the possibility of managing the appellant's risks in the community, but only if he could be very closely supervised, especially in the context of cohabiting relationships and have access to treatments that are not currently available. [page158]

[67] The sentencing judge then identified the specific frailties surrounding Dr. Klassen's proposed plan of supervision:

-- The appellant has had limited, if any, success with treatment.

-- Dialectical behavioural therapy is not available at the Correctional Services of Canada.

-- Despite the successful completion of substance abuse training, the appellant used alcohol and cannabis on release from custody and on the night of the predicate offence. The appellant has battled substance abuse for decades and seems unable to control it.

-- There are limited beds in community correctional centres and no method of confirming that a bed will be available at the time of release.

-- The appellant requires greater supervision than is available from parole officers.

-- Monitoring intimate relationships depends on self-reporting. There may not be time to intervene should a breakdown in a romantic relationship occur, since the appellant's history reveals a tendency to react quickly and impulsively when rejected.

[68] She therefore held that the appellant could not be adequately supervised to ensure, to the extent possible, that he would not reoffend. Due to his history of fast attachment and tendency to resort to violence in intimate relationships, "no amount of supervision could prevent yet another victim being attacked by [the appellant] should he be released into the community too soon". Nor could the appellant be meaningfully treated, such that his risk to the public would be controlled at an acceptable level within a determinate period of time. Given her finding that the appellant could not be meaningfully supervised or treated, she concluded:

I am not satisfied that there is a reasonable expectation that a lesser sentence (ie. a determinate sentence followed by a long-term supervision order) will adequately protect the public against the commission of a serious personal injury offence.

[69] This is not a situation where the sentencing judge imposed an indeterminate sentence without considering the viability of lesser alternatives. She was not "uncertain" about whether there was a reasonable expectation that a lesser measure would adequately protect the public; nor did she resolve any "uncertainty" against the appellant. Rather, she concluded, after a full review of [page159] the evidence, that there "is no reasonable possibility of eventual control of [the appellant's] risk in the community". As such, she specifically rejected the option of a determinate sentence followed by a long-term supervision order, as the public would not be adequately protected if anything less than an indeterminate sentence was imposed.

[70] While the sentencing judge did not use the wording in Boutilier, which had not been released at the time of her decision on sentence, her conclusions were reasonable, amply supported by the evidence, and in accordance with that case. She properly engaged in an individualized assessment of all the relevant factors and circumstances to determine a fit sentence.

F. Disposition

[71] For these reasons, I would dismiss the appeal.

Appeal dismissed.

End of Document