COURT OF APPEAL FOR ONTARIO

DATE: 20220429 DOCKET: C62037

Feldman, van Rensburg and Coroza JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Richard Keith Blake Appellant

Counsel: Gregory Lafontaine and Julia Kushnir, for the appellant Elena Middelkamp, for the respondent

Heard: November 5, 2021 by video conference

On appeal from the conviction entered on February 1, 2013 by Justice Albert J. Roy of the Superior Court of Justice, sitting with a jury, and the appellant’s designation as a dangerous offender and the sentence imposed on March 30, 2016 by Justice Robert J. Smith of the Superior Court of Justice, with reasons reported at 2016 ONSC 2204.

van Rensburg J.A.:

A. OVERVIEW

[1] This is primarily an appeal of the appellant’s designation as a dangerous offender. Although the appellant appeals his conviction and sentence, at the hearing of the appeal only the appeal of the dangerous offender designation was pursued. Accordingly, these reasons will address the main issue on the appeal, and I will briefly address the conviction appeal at the end of these reasons.

[2] The predicate offences involved a planned and brutally violent attack on strangers after the appellant, armed with zip ties, duct tape and knives, broke into their home in the middle of the night and, intending to kill them, confined, threatened and taunted them for more than two hours, while inflicting life‑threatening injuries. The incident ended only after the male victim escaped by jumping out of a window and the appellant sped off in the victims’ car, crashed into a police vehicle, and was apprehended after a foot chase.

[3] The appellant was charged with numerous offences. His defence was mistaken identity. After a trial by judge and jury, he was convicted of two counts of attempted murder, two counts of aggravated assault, one count of breaking and entering, two counts of unlawful confinement, two counts of robbery, one count of theft and one count of failing to stop for a peace officer. In addition to a sentence of imprisonment for some of the offences, [1] in respect of the attempted murder, aggravated assault, unlawful confinement and robbery convictions, the appellant was designated a dangerous offender under s. 753(1)(a)(iii) of the Criminal Code, and he received a sentence of indeterminate detention.

[4] The designation under s. 753(1)(a)(iii) required that the Crown establish beyond a reasonable doubt that the appellant had been convicted of a serious personal injury offence as defined in paragraph (a) of the definition of that term in s. 752, and that he constitutes a threat to the life, safety or physical or mental well‑being of other persons on the basis that his behaviour associated with the predicate offences was “of such a brutal nature as to compel the conclusion that [his] behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint”.

[5] An overarching argument in this appeal is that because the predicate offences arose out of a “one-off” incident, there was no pattern of violent behaviour that would support the appellant’s designation as a dangerous offender. The appellant contends specifically that the sentencing judge erred in his approach to and evaluation of the evidence of two forensic psychiatrists, Crown expert Dr. Bradley Booth (who conducted an assessment of the appellant under s. 752.1 of the Code) and defence expert Dr. Julian Gojer, and in concluding that the appellant’s behaviour was “of such a brutal nature as to compel the conclusion that [his] behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint”.

[6] For the reasons that follow, I would dismiss the appeal. The sentencing judge did not err in his approach to and consideration of the expert psychiatric evidence. The experts agreed on a number of points. Where there was disagreement – in particular, as to whether it was appropriate to consider only the results of actuarial tests, and not clinical factors, and then in weighing those factors – the sentencing judge carefully explained why he preferred the evidence of Dr. Booth. Nor did the sentencing judge “dismiss out of hand” or misapprehend Dr. Gojer’s evidence. I see no error in the sentencing judge’s assessment of the expert evidence, nor in his decision to designate the appellant a dangerous offender. The evidence fully supported his conclusion that, in this exceptional case, the elements of s. 753(1)(a)(iii) had been proven beyond a reasonable doubt. And in the circumstances, there was no alternative but to impose a sentence of indeterminate detention.

B. THE PREDICATE OFFENCES

[7] The appellant was tried for the predicate offences in January 2013 by Justice Albert Roy, sitting with a jury. He was found guilty on February 1, 2013. Justice Roy retired before the sentencing and dangerous offender hearing took place. Justice Robert Smith was the sentencing judge.

[8] At the sentencing hearing, the sentencing judge was required to find the facts, express or implied, that would have been essential to the jury’s verdict beyond a reasonable doubt: Criminal Code, ss. 724(2), 724(3)(e). He found that the jury made 44 express or implied findings of fact, which can be summarized as follows.

[9] In mid-May 2010, the appellant went to a Home Depot store, where he purchased plastic zip ties, nylon rope and duct tape. He did not open any of the packaging until just before he left his home on foot around 2:00 a.m. on June 26, 2010. He was armed with at least two knives and ten zip ties, and he had attached strips of duct tape to the underside of his shirt. He was wearing latex gloves and a black toque. Sometime between 2:00 and 3:00 a.m., the appellant entered the home of Frank Renaud and Amalie Thomas, who were strangers to him. He entered through their kitchen window after stacking up paving stones located at the side of the house and cutting open a window screen. Over the next two hours, the appellant confined and tortured Mr. Renaud and Ms. Thomas in their home, inflicting very serious injuries on them. He stabbed Mr. Renaud approximately 18 times, including twice on his torso. He cut Ms. Thomas’s throat three times, from the front of her neck all the way to her spine, while she was confined to a chair in the basement. The couple narrowly escaped death.

[10] The attack began after Mr. Renaud was awakened by a noise in the kitchen. He walked around the house, still half asleep. The appellant emerged from a bedroom with a knife in each hand and started stabbing Mr. Renaud with both hands. He backed Mr. Renaud into his bed, stabbing him repeatedly. Ms. Thomas woke up and said, in a panic, that Mr. Renaud was going to die. The appellant told her, “No he won’t. I’ve seen this before.” At one point the appellant asked the victims whether they were the “Sandersons” or “Andersons”, and after they said they were not, he asked if they were lying and said he had the wrong house. Ms. Thomas told him to leave if he had the wrong house, and the appellant replied, “I can’t do that. My boss wouldn’t like it”.

[11] The appellant instructed Ms. Thomas to use zip ties to bind her wrists and Mr. Renaud’s legs, and to cover Mr. Renaud’s mouth with duct tape. She complied out of fear. The appellant told the couple that if they called the police, he would kill all the people in their family, indicating an address book he found in their home. He then said, “I have to stage a robbery”, and forced Ms. Thomas to accompany him through the house so that he could cut each of the phone lines.

[12] The appellant took Ms. Thomas to the basement and stated, “We’re going to play a game. You’re going to kill your husband.” Ms. Thomas said it sounded like this was a game for the appellant, and that he was having fun. He tied Ms. Thomas to a chair with duct tape and then went back upstairs. When Mr. Renaud attempted to stagger to the front door, the appellant said, “If you leave, I’m going to kill her”, stabbed Mr. Renaud twice, and told him to get back to the bedroom. He shut the bedroom door, confining Mr. Renaud, intending to return later and kill him.

[13] The appellant then went to the basement where he said to Ms. Thomas, “I’m sorry, have I scarred you for life?” Trying to kill her, he cut her throat three times. He pushed over the chair to which she was still tied, and went upstairs. While the appellant was in the basement, Mr. Renaud escaped the bedroom through the window, dropping eight or nine feet to the ground. He managed to reach his relatives’ home down the street and called 911. When the appellant realized that Mr. Renaud had escaped, he took the keys to the couple’s vehicle and used it to flee the scene.

[14] The appellant was apprehended after a police chase in which he collided with a police car and then a guard rail, fled on foot, and was tracked by a canine unit. In the vehicle were a butcher knife and a utility knife (the victims’ blood was on both), bloody latex gloves and a black toque. The appellant’s DNA was found on the gloves, toque and the handle of the utility knife.

C. THE DANGEROUS OFFENDER PROCEEDING

[15] In June 2013, the trial judge heard the Crown’s application for an order directing a psychiatric assessment of the offender under s. 752.1 of the Code. The application was supported by the report and testimony of psychiatrist, Dr. Derek Pallandi, who had been engaged by the Crown to conduct a preliminary assessment. The trial judge concluded that there were reasonable grounds to believe the appellant might be found to be a dangerous offender or a long-term offender, and on that basis ordered that a s. 752.1 assessment be undertaken by Dr. Booth. By the time of the dangerous offender and sentencing hearing, the trial judge had retired and the sentencing judge became seized with the matter.

[16] The Crown sought to have the appellant designated as a dangerous offender on the basis of the brutality of his behaviour in relation to the predicate offences. The Crown made it clear from the outset that it would be relying on s. 753(1)(a)(iii) of the Criminal Code, which provides:

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 (1) 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

(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…

[17] Dr. Booth conducted the assessment required by s. 752.1 of the Code. He and Dr. Gojer each prepared a report and they were both called as witnesses at the hearing, and qualified as experts in forensic psychiatry. Each had met with the appellant for about three hours, and had reviewed the available documentation from the trial, police reports about the offences and police interviews of various people. Various psychological assessments were administered to assess the appellant’s propensity for violent reoffence.

[18] Dr. Booth and Dr. Gojer agreed on a number of points. The appellant, who was 21 years old when he committed the offences and 24 years old at the time of their assessments, had a stable background. There was no history of any serious behavioural issues throughout school, no episodes indicative of mental illness, and the appellant had no criminal record or involvement with the criminal justice system. The experts agreed that there was nothing in the appellant’s history that could have predicted the predicate offences or any extreme violence. Dr. Gojer agreed that the actuarial evaluation and standardized questionnaires administered by Dr. Booth were appropriate, and he generally agreed with the test results. In particular, both psychiatrists agreed that, based on the results of the VRAG (Violence Risk Appraisal Guide), which suggested a 17% and 31% chance of violent recidivism within seven and ten years, the appellant was at a low to moderate risk for violent reoffence in the future (as explained below, Dr. Gojer adjusted this to a “moderate” risk). They agreed that, based on the testing, the appellant was not a psychopath, and that, although there was not enough information to confirm a mental illness, personality disorder or psychosis, the appellant showed some “schizoid traits” (Dr. Booth thought that there was some evidence that the appellant might have a psychotic illness such as schizophrenia in development or in progress). They also agreed that, while the appellant lied about certain things during his interviews, such as having played sports at school and having dated a number of women (which was inconsistent with information provided by collaterals), he was not delusional. [2]

[19] The appellant was generally co-operative in the assessments in the sense that he answered questions (except in relation to the offences), provided contact information for collaterals, and underwent the requested tests (except for phallometric testing). However, the psychiatric assessments were impeded by the appellant’s insistence that he did not commit the offences and, accordingly, his unwillingness to discuss the events. Both psychiatrists were of the view that the appellant’s continued denial of any responsibility for the offences in the face of what Dr. Gojer described as “overwhelming evidence” was itself concerning. Both experts also agreed that the appellant constituted a threat to the safety of others at the time of the hearing.

[20] I will address the appellant’s specific arguments about the expert evidence below. I note here that, in broad terms, the experts disagreed in their assessment of the appellant’s future risk of violent reoffence. Dr. Booth testified that, based on actuarial testing and clinical factors, the appellant was at a significant risk of violent reoffence. He also provided an opinion that the appellant’s behaviour was of such a brutal nature as to compel the conclusion that his future behaviour was unlikely to be restrained. Dr. Gojer, by contrast, relying only on actuarial testing, and in particular the VRAG, assessed the appellant’s risk as moderate. Dr. Gojer said it would be inappropriate to offer an opinion on whether, based on circumstances of the predicate offences, the appellant was unlikely to restrain his future behaviour. He saw the appellant’s refusal to discuss the events and his denial of involvement as an impediment to answering this question, and he was of the view that, without knowing the causative factors and the appellant’s underlying motivations, it was impossible to make a scientific prediction about whether there was a significant risk of severe and life-threatening violence and whether the appellant was unlikely to restrain his behaviour in the future, given that he did not do so at the time of the offences. In arriving at his opinion, Dr. Booth relied on clinical judgment, identifying factors relating to the circumstances of the offences themselves and the appellant’s behaviour before and after the offences to support his opinion. Dr. Gojer, by contrast, emphasized the importance of the actuarial measures and discounted the importance of clinical judgment, concluding that it would be speculative to say that the appellant had any more than a moderate risk of violent reoffence.

D. THE SENTENCING JUDGE’S REASONS

[21] At the heart of this appeal is the sentencing judge’s treatment of and conclusions drawn from the expert evidence – which are addressed in some detail in my discussion of the grounds of appeal. It is sufficient at this stage to set out a brief summary of his reasons.

[22] The sentencing judge identified the following questions for determination: (1) What were the findings of fact, express or implied, that were essential to the jury’s verdict? (2) Has the offender been convicted of a serious personal injury offence? (3) Does the offender constitute a threat to the life, safety, or physical or mental well-being of other persons? (4) Was the offender’s behaviour in committing the offences of a brutal nature? (5) Has the Crown proven beyond a reasonable doubt that the offender’s behaviour was of such a brutal nature to compel the conclusion that his behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint? (6) What sentence should be imposed if the offender is found to be a dangerous offender?

[23] With respect to the first question, Crown counsel had provided a draft summary of facts, to which defence counsel proposed certain changes or qualifications. Having reviewed the transcripts and considered the submissions of counsel, the sentencing judge set out 44 factual findings that were essential to the jury’s verdict. He made detailed findings about what the appellant said and did during the commission of the offences. He also found that the appellant intended to kill his victims.

[24] The sentencing judge noted that the appellant’s commission of a serious personal injury offence was not contested and was established by the appellant’s convictions for attempted murder, aggravated assault, forcible confinement, and robbery.

[25] In concluding that the appellant constituted a threat to the life, safety, or physical or mental well-being of other persons, the sentencing judge referred to the opinion of Dr. Booth, and his reliance on seven clinical factors to support his opinion that the appellant was unlikely to be inhibited by normal standards of behaviour in the future, and constituted a threat to the life, safety and both physical and mental well-being of members of the public at the present time. He also referred to Dr. Gojer’s agreement that the appellant remained a risk to members of the public, and the acknowledgment in his report that the offences had a high degree of lethality, the appellant had an underlying intention to cause death, and that the offence was perpetrated over a period of time added to the psychological impact that the actions had on both victims. The sentencing judge was satisfied beyond a reasonable doubt that the appellant constituted a threat to the life, safety, physical or mental well-being of other persons at the present time, as a result of the predicate offences and the expert psychiatric opinions, and that the risk could not be reduced by treatment or therapy because the psychiatrists were unable to diagnose and understand the cause of his violent actions.

[26] On the question whether the appellant’s behaviour associated with the predicate offences was of a brutal nature, the sentencing judge referred to the definitions of brutality for the purpose of s. 753(1)(a)(iii) in R. v. Langevin (1984), 45 O.R. (2d) 705 (C.A.) (“conduct which is coarse, savage and cruel and which is capable of inflicting severe psychological damage”) and R. v. Campbell (2004), 120 C.R.R. (2d) 231 (Ont. S.C.) (“merciless, unfeeling, ruthless violence, vicious and inhumane conduct”). The sentencing judge was satisfied beyond a reasonable doubt that the appellant’s conduct constituted brutal behaviour within the definition of s. 753(1)(a)(iii) based on the circumstances of the offences, including his planning, his unfeeling and detached conduct while cutting Ms. Thomas’s throat, his infliction of severe psychological damage on both victims while he confined them for over two hours, the fact that he appeared to enjoy toying with and torturing his victims, the multiple stab wounds inflicted on Mr. Renaud, the severity of the slashing of Ms. Thomas’s throat, the appellant’s lack of remorse for his conduct, and his dangerous actions of attempting to escape from the police. (I note that while the brutality of the offences was contested at first instance, there was no question about the characterization of the appellant’s behaviour as “brutal” in this appeal.)

[27] On the fifth issue, which was the central question for determination, the sentencing judge referred to aspects of the expert evidence of Dr. Booth and Dr. Gojer. He referred to Dr. Booth’s opinion that there was a significant risk that the appellant’s behaviour in the future was unlikely to be inhibited by normal standards of restraint as a result of the extremely brutal nature of the attacks. He set out the seven clinical factors Dr. Booth considered in coming to this conclusion, which included the appellant’s high degree of planning, his lack of impulsiveness, that he displayed a lack of moral compass, and his denial of being the perpetrator of the offences.

[28] The sentencing judge noted Dr. Gojer’s opinion that only actuarial tests, and not clinical factors, should be used to evaluate the appellant’s risk of violent actions in the future. He also referred to Dr. Gojer’s agreement that the appellant posed a risk to the safety of the public at the present time largely because he was unable to make a diagnosis and to provide treatment, and that he was unable to identify any risk factors that led to the violent brutal actions of the appellant. The sentencing judge noted that Dr. Gojer declined to give an opinion on whether the appellant would or would not be likely to be inhibited by normal standards of restraint in the future because such a prediction could not be made based only on the brutality of the appellant’s actions during the offences.

[29] The sentencing judge characterized Dr. Gojer’s assertion, that it was the role of the court to decide whether the appellant’s behaviour was of such a brutal nature as to compel the conclusion that his behaviour in the future would unlikely be inhibited by normal standards of restraint, as “true, [but] not helpful evidence”. The sentencing judge referred to defence counsel’s argument that s. 753(1)(a)(iii) was “ill-founded legislation”, an argument he rejected in the absence of a constitutional challenge.

[30] The sentencing judge noted the statement in Dr. Gojer’s report that he agreed with Dr. Booth that the results of the actuarial tests were unhelpful and “suggest a low risk in the face of a deep concern that Mr. Blake could commit a similar act in the future”, and that Dr. Gojer increased the appellant’s level of risk to “moderate” based on clinical factors. He contrasted this with Dr. Gojer’s testimony at trial that he would rely primarily on the VRAG test rather than on any clinical factors, and noted that this was an inconsistency that reduced the weight to be placed on Dr. Gojer’s evidence at the hearing.

[31] The sentencing judge referred to the fact that neither psychiatrist could offer a treatment plan for the appellant because the appellant’s continued denial of responsibility for the offences and refusal to cooperate (by discussing the offences) meant that they could not diagnose a mental illness that could be treated to reduce the risk of violent reoffence.

[32] The sentencing judge found that Dr. Booth’s “approach of relying on all of the evidence including both the clinical factors as well as the psychological testing is the better approach.” He gave ten reasons for accepting Dr. Booth’s opinion that the appellant poses a significant risk of committing violent acts in the future and that the brutality of his actions when committing the offences compelled the conclusion that his behaviour in the future was unlikely to be inhibited by normal standards of restraint. These included the lack of a diagnosis of any mental disorder and the absence of substance abuse problems and impulsive disorders that would explain his behaviour or be amenable to treatment that would reduce the risk of violent reoffence; the high level of brutality of the offences; the appellant’s lack of moral compass; the advanced planning involved in the commission of the offences; the appellant’s apparent delight in torturing the victims; his continued denial of involvement in the offences in the face of overwhelming evidence, leading to the only logical conclusion that he was lying; and the fact that the appellant remained undiagnosed and untreated.

[33] As a result, the sentencing judge designated the appellant a dangerous offender pursuant to the s. 753(1)(a)(iii) of the Criminal Code.

[34] In determining the appellant’s sentence, the sentencing judge rejected the defence position that a sentence of 16 years’ imprisonment, less credit for pre-sentence custody, was appropriate. He noted that the appellant remained a significant risk until such time as he is diagnosed with a mental illness that may be treated or he develops sufficient insight into his behaviour such that it might be understood and treated through therapy or other means. The sentencing judge concluded that no measure other than an indeterminate detention would adequately protect the public. He therefore sentenced the appellant to detention in a penitentiary for an indeterminate period.

E. ISSUES ON THE DANGEROUS OFFENDER APPEAL

[35] The standard of review on a dangerous offender appeal was articulated by Tulloch J.A. in R. v. Sawyer, 2015 ONCA 602, 127 O.R. (3d) 686, at para. 26, as follows:

Appellate review of a dangerous offender designation “is concerned with legal errors and whether the dangerous offender designation was reasonable”: R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423, at para. 23. While deference is owed to the factual and credibility findings of the sentencing judge, appellate review of a dangerous offender designation is more robust than on a “regular” sentence appeal: Sipos, at paras. 25-26; R. v. Currie, [1997] 2 S.C.R. 260, [1997] S.C.J. No. 10, at para. 33.

[36] Where the error of law has not resulted in a substantial wrong or miscarriage of justice, an appellate court may dismiss an appeal against a dangerous offender declaration, relying on s. 686(1)(b)(iii) of the Criminal Code. This power may be exercised only where there is no reasonable possibility that the sentencing judge’s conclusion would have been any different had the error of law not been made: R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at paras. 82-83.

[37] The appellant contends that the sentencing judge erred when he misapprehended and, in effect, completely disregarded the expert opinion evidence of the defence expert, Dr. Gojer, and when he failed to take into consideration Dr. Gojer’s reasonable criticisms of Dr. Booth’s opinion. The appellant asks that this court remit the matter to another judge of the Superior Court for a new dangerous offender hearing.

F. DISCUSSION

[38] The burden is always on the Crown to establish, beyond a reasonable doubt, the required elements for a dangerous offender designation. The only subsection of s. 753(1)(a) that does not expressly require a pattern of behaviour as a basis for determining the offender’s risk of future dangerousness is s. 753(1)(a)(iii). The logic of s. 753(1)(a) is that “the stricter the pattern requirement, the less shocking the behaviour must be; the less a pattern is required, the more shocking the behaviour must be”: Joseph A. Neuberger, Marcella Henschel & Pieter Joubert, Assessing Dangerousness: Guide to the Dangerous Offender Application Process (Toronto: Thomson Reuters, 2011) (loose-leaf updated 2021, release 2), at p. 4-49. The focus of s. 753(1)(a)(iii) is on the brutality of the behaviour associated with the predicate offences, and from that, the risk of future dangerousness is assessed.

[39] Ultimately, it is for the sentencing judge to determine whether the Crown has proven both the brutality of the offender’s behaviour associated with the predicate offence, in the sense of behaviour that is “coarse, savage and cruel and which is capable of inflicting severe psychological damage”, as per Langevin, and whether based on that behaviour, the offender’s future behaviour is unlikely to be inhibited by normal standards of behavioural restraint. As the sentencing judge recognized here, the determination is for the court but is one that can be, and often is, informed by psychiatric evidence. See, for example, R. v. Melanson (2001), 152 C.C.C. (3d) 375 (Ont. C.A.), at paras. 29-33, 40, leave to appeal refused, [2001] S.C.C.A. No. 362; R. v. Leopold, 2001 BCCA 396, 155 C.C.C. (3d) 251, at para. 30, leave to appeal refused, [2002] 1 S.C.R. viii; R. v. Pike, 2010 BCCA 401, 260 C.C.C. (3d) 68, at paras. 61-63; and R. v. N. (L.), 1999 ABCA 206, 237 A.R. 201, at paras. 182-188.

[40] The appellant contends that he did not receive a fair hearing. He submits that the sentencing judge made a number of errors in connection with the expert evidence that resulted in his acceptance of the opinion evidence of Dr. Booth and his rejection of the opinion evidence of Dr. Gojer. First, he submits that the sentencing judge unfairly “dismissed out of hand” Dr. Gojer’s evidence after commenting adversely on his qualifications and seizing on an alleged discrepancy between Dr. Gojer’s report and his evidence in court, without having considered Dr. Gojer’s explanation. Second, the sentencing judge effectively reversed the onus when he accepted Dr. Booth’s conclusion that the absence of evidence to the contrary meant that there was a significant likelihood of violent reoffence, a conclusion that Dr. Gojer characterized as “illogical and unscientific”. On a related point, the appellant contends that the sentencing judge accepted Dr. Booth’s opinion without giving any effect to Dr. Gojer’s criticisms of Dr. Booth’s reliance on clinical factors. Ultimately, the appellant contends that, if Dr. Gojer’s evidence had been given proper consideration, the court would not have found that there was a substantial risk of violent reoffence or that the statutory test under s. 753(1)(a)(iii) was met.

[41] I will deal with each argument in turn.

(1) The Treatment of Dr. Gojer’s Evidence

[42] Dr. Gojer’s evidence at the hearing was that, based on a single episode, the prediction that the appellant would be unable to restrain his behaviour could not be drawn clinically. He was unaware of any clinical study or scientific literature that would support the conclusion that one can predict that a person is unlikely to inhibit his behaviour in the future based on the nature and quality of the offence. At times, Dr. Gojer (and defence counsel in his closing submissions) rejected the entire premise of s. 753(1)(a)(iii), that is, that the brutality of the predicate offence could predict the future risk of another violent crime. Dr. Gojer was consistent, however, in expressing the view that psychiatric opinion plays no role in this determination. Hence, he refused to provide an opinion on that specific issue, although he did express an opinion that the appellant’s risk of risk of future violent offence was “moderate”.

[43] First, the appellant says that the sentencing judge minimized Dr. Gojer’s qualifications, pointing to the sentencing judge’s comment that “Dr. Booth is a duly qualified forensic psychiatrist whereas Dr. Gojer has not written the exams to be qualified as a forensic psychiatrist; rather he is a psychiatrist who has practiced extensively in the forensic field”.

[44] This observation by the sentencing judge was consistent with Dr. Gojer’s evidence, in which he confirmed that although he had conducted more than 200 forensic psychiatric assessments (a fact referred to in the sentencing judge’s reasons), he had not yet taken a qualifying exam. I do not read this reference to the respective experiences of the psychiatrists as an adverse commentary on Dr. Gojer’s expertise, or an indication that the sentencing judge denigrated or dismissed Dr. Gojer’s opinion out of hand. Rather, the sentencing judge readily qualified both psychiatrists as experts in forensic psychiatry, and he considered in some detail the opinions they expressed in their reports and oral evidence. Where the evidence of the two psychiatrists differed, the sentencing judge provided detailed reasons for preferring Dr. Booth’s opinion. Ultimately, while he commented on the psychiatrists’ respective qualifications, the sentencing judge did not dismiss Dr. Gojer’s evidence “out of hand” based on his qualifications, or at all.

[45] Nor did the sentencing judge err in his treatment of the perceived inconsistency between Dr. Gojer’s report and oral evidence by failing to take into consideration his explanation for the inconsistency. An important inconsistency between Dr. Gojer’s report and oral evidence with respect to the role of clinical judgment in the appellant’s risk assessment was explored in detail during his cross-examination. The sentencing judge relied on the inconsistency to reduce the weight to be given to Dr. Gojer’s evidence.

[46] At the hearing, Dr. Gojer stated repeatedly that because of the appellant’s score on the VRAG, he was at a low to moderate risk to reoffend violently, and he rejected Dr. Booth’s approach, which also looked at clinical factors, as “unscientific” and not useful for long-term prediction of risk. For example, at p. 270 of the transcript, Dr. Gojer stated:

I would say, because the VRAG says he’s a moderate risk, I would stick with him being a moderate risk. Now, the bigger question is, “Do we look at clinical factors?” Do we look at other factors to start modifying the risk. And that’s exactly by saying, “Let’s have a hunch, let’s have a guess, as to where the next bullet’s going to come from, and we’ll make a prediction.” That does not follow scientific principles. And according to the researchers, that’s the authors of the VRAG, when you do that, your analysis of risk becomes biased. Your analysis of risk becomes flawed. And I’d rather stick to something that’s tried, tested, and true. It may not be the best instrument, but the moment I start introducing other clinical variables, I am on shaky ground. And I feel that it will take me away from pure, scientific, principles into conjecture, speculation, in other areas… I’ve approached this case from a more conservative point of view, relying on a, an instrument that has been tested, and that you can actually get a figure. There are other emotional factors and value-laden opinions that go beyond psychiatry, and my job is only to stick to psychiatry, not go beyond that.

[47] Dr. Gojer was cross-examined with reference to his report, in which he commented on the limitations of actuarial measures and referred to clinical factors in the assessment of the appellant’s risk. The sentencing judge referred to the fact that Dr. Gojer’s report stated that he agreed with Dr. Booth that the actuarial tests were unhelpful – that they spoke to risk of violence occurring but not the severity of the risk, and that they “suggest a low risk in the face of deep concern that [the appellant] could commit a similar act in the future”. The sentencing judge noted that Dr. Gojer testified at trial that he would rely primarily on the VRAG test rather than on any clinical factors, and that his evidence was inconsistent with what he said at page 27 of his report. The sentencing judge stated, at para. 57:

This inconsistency reduces the weight to be placed on his evidence at this hearing. Dr. Gojer acknowledged that he increased the level of risk to moderate based on clinical factors. I find that Dr. Booth’s approach of relying on all of the evidence including both the clinical factors as well as the psychological testing is the better approach. Dr. Gojer ultimately testified that he couldn’t say whether or not the offender would restrain his actions in the future.

[48] The sentencing judge then went on to say that he accepted Dr. Booth’s opinion that the appellant remained at a significant risk of violent reoffence and that the brutality of his actions when committing the offences compels the conclusion that his future behaviour is unlikely to be inhibited by normal standards of restraint, and he gave reasons for accepting the opinion.

[49] Because the appellant contends that the sentencing judge unfairly failed to consider Dr. Gojer’s explanation for the apparent inconsistency, to the extent that he misapprehended Dr. Gojer’s evidence, I set out here the relevant passage from his cross-examination.

Q. Dr. Gojer, I had understood your evidence this afternoon, to be that in Mr. Blake’s case, in particular, you think it’s preferable to rely on the actuarial scores, rather than looking at clinical factors? Is that what you’ve said today?

A. Yes.

Q. Okay. And can you turn to page 25 of your report? In the second to last paragraph you’ve written, “in this case, given the unusual presentation and denial by the offender, examining dynamic or clinical factors becomes more important.”

A. Yes.

Q. As compared to the tools that you’ve just considered?

A. It does. But when [you] don’t have the dynamic or the clinical factors like whether there’s a hallucination, the fall back still becomes the actuarial.

Q. But you have said the actuarial tools are unhelpful in Mr. Blake’s case?

A. No. The actuarial tools are the most helpful. It would be – maybe I should have written it better. It is useful, clinical factors would have been very relevant, if Mr. Blake had actually communicated with us. It would have been – allowed us to come up with a treatment plan. I was looking at it more from lowering his risk. But I see his risk as actually higher based on the actuarial risk assessment. So the focus should be, in this case, on the actuarial.

Q. Well, if you could turn to page 26 of your report, in the middle of the top paragraph you’ve written, “I agree with Dr. Booth, that the results of the VRAG and PCLR, and I would add the HCR20, also, are unhelpful.” … Is that not you saying that the actuarial tools are unhelpful in Mr. Blake’s case?

A. They are unhelpful in terms of identifying him as a low-risk. Because his risk is higher than what the PCLR suggests… And the VRAG. I would say he’s a moderate risk.

Q. Okay. But I mean, you words here are quite clear; right? You identify the…the tools, and you say they’re unhelpful for Mr. Blake. Isn’t that what you’re saying in your report?

A. Yeah.

Q. And if we look at the page before, you’re saying the dynamic or clinical factors become more important given Mr. Blake’s unusual presentation; right?

A. Yes.

Q. But is that not the opposite of what you’ve just said in your evidence, here?

A. No. It should be that the actuarial is the foundation. It would be useful to have clinical factors if Mr. Blake had communicated with us. I didn’t elaborate on that more, I should have… [M]y opinion is still that the actuarial is more accurate in this case than the clinical factors.

Q. Well, why do you say the exact opposite in your report, then?

A. It might have been the way I wrote it at that time. But my opinion is still that the actuarial is the one that you have to go with.

Q. Okay. In spite of the fact that you describe it as “unhelpful” in your report?

A. It’s unhelpful if you’re looking at it from a low perspective. So I was writing it in that context. The PCLR points to him being a low-risk. I actually see him as a higher risk. So it’s unhelpful in seeing him as a low-risk … [t]han what the PCLR states.

Q. You would agree though, that even in Mr. Blake’s case, it is important to look at the clinical factors?

A. You would always look at clinical factors. The question is when you’re trying to pin your risk prediction on clinical factors. Like, you said, he is an atypical case. When you have an atypical case, if you’re going to use some of the standard risk assessment instruments, it’s difficult to justify high or low risk either way, when you’re looking [at] an atypical case… Many of the research studies may not apply to Mr. Blake, because of the atypicality of this case. So to avoid the confusion when you don’t have the clinical factors, you are only left with the actuarial risk assessment instruments.

Q. Okay. Well, what you go on to say at the bottom of page 25, when you say, “Examining the dynamic or clinical factors becomes more important”, you say “the starting point, is that Mr. Blake was found guilty of the offending, he denies any involvement despite evidence that seems obvious.” Those are clinical factors that you’re taking into consideration; right?

A. Yeah. So that is why, if it was a low-risk, I would still bump him up at a clinical level to a moderate-risk. How do I play around with whether he’s a high-risk, or a low-risk, it’s difficult. The only way I can do that, is to go around the actuarial scores, as opposed to the clinical scores.

Q. But you’ve given us your opinion many times here, and that is that Mr. Blake is not a low-risk; right?

A. Yeah. I would not see him as a low-risk.

Q. And that’s because you’re adjusting the actuarial scores with your clinical judgment?

A. No. I’m looking at his PCLR score, which by itself, the PCLR is not an actuarial risk assessment instrument. If I combine the PCLR with the VRAG, that becomes an actuarial risk assessment instrument. If I look at some of the risk factors, yes. On the surface, the heinousness of the offence or the severity of the offence, the long time that he spent, these are disturbing facts … in this case. I would like to know what’s in Mr. Blake’s mind, at the time. Unfortunately, I don’t have that, so I can’t use that, and I recommend that we don’t use that. We stick to just the actuarial score on the VRAG.

Q. Okay. You, you would agree, I take it, that at the time of these offences, Mr. Blake’s behaviour was not inhibited by normal standards of behavioural restraint; right?

A. Yeah, of course.

[50] Dr. Gojer was not re-examined by defence counsel.

[51] From a careful review of this passage, three things are apparent. First, there is no question that there was an inconsistency in Dr. Gojer’s evidence. At the hearing, he insisted on the primacy of actuarial measures in assessing the appellant’s risk of violent reoffence, while his report made it clear that he agreed with Dr. Booth that actuarial test results were of limited help in assessing the appellant’s risk. As he acknowledged at other points in his evidence, the actuarial results did not give the full picture. They addressed the likelihood of violent reoffence, but not its severity.

[52] Second, Dr. Gojer did not offer any real explanation for the inconsistency. Rather, he asserted (as he had done elsewhere in his evidence) that because the appellant refused to speak about the offence, there was little to go on clinically, so that the best practice was to use actuarial measures. In other words, although a forensic psychiatrist would typically look to clinical factors in assessing the risk of violent recidivism, he was of the view that there were no clinical factors in the appellant’s case.

[53] What Dr. Gojer did not explain was the acknowledgment in his report that actuarial measures were of limited assistance in this case, where the appellant’s conduct caused “deep concern that [he] could commit a similar act in the future”. Indeed, whether he labelled them as clinical factors or not, Dr. Gojer acknowledged that he had considered the heinousness and the lengthy duration of the offences to adjust upward the appellant’s risk from “low-moderate” (according to the actuarial tests) to “moderate”. Contrary to the appellant’s submission, Dr. Gojer’s explanation did not mitigate the apparent inconsistency between his report and his evidence at the hearing; arguably, it only served to underscore the contradictions inherent in his opinion.

[54] Third, it is apparent from this exchange that Dr. Gojer’s reliance on the appellant’s actuarial test results to assess risk was a default position to which he adhered, although not because the actuarial tests effectively assessed risk. He acknowledged in his testimony that actuarial tests were inadequate as they addressed only the quantitative risk, or likelihood of violent reoffence, while not addressing the qualitative risk, or the level of violence of any reoffence. Rather, he insisted that, in the absence of an explanation for the appellant’s conduct, there were insufficient clinical factors to consider in the appellant’s case, or, put another way, he was unwilling to base any clinical assessment of the appellant’s risk of violent reoffence on the circumstances of the predicate offences.

[55] Ultimately, although Dr. Gojer agreed that the predicate offences were heinous and lethal, with an unusual level of cruelty and sadistic components, and he was of the opinion that the appellant remained a threat to the safety of others, he declined to provide an opinion on whether the appellant would or would not be likely to be inhibited by normal standards of restraint in the future.

[56] I do not see any error or misapprehension of the evidence in the sentencing judge’s treatment of the inconsistencies in Dr. Gojer’s opinion evidence. The sentencing judge did not, as the appellant contends, dismiss Dr. Gojer’s evidence “out of hand”. Rather, he accurately summarized the evidence, and he was entitled to give Dr. Gojer’s opinion reduced weight because of its inconsistency, and because of the obvious limitations to Dr. Gojer’s opinion. And, as I will explain in the next section, the sentencing judge assessed Dr. Booth’s evidence in the context of the criticisms that Dr. Gojer raised.

(2) The Treatment of Dr. Booth’s Evidence

[57] I turn to the appellant’s submission that the sentencing judge failed to critically assess Dr. Booth’s evidence, in part because he did not refer to the scientific articles Dr. Booth presented as support for his reliance on clinical factors, and the limitations of such articles which were brought out during Dr. Gojer’s evidence. The appellant repeats the argument made at first instance that Dr. Booth’s reliance on clinical factors to assess his risk was “unscientific”. It was Dr. Gojer’s opinion that drawing a conclusion that the appellant was at a significant risk of violent recidivism based on a single offence lacked any scientific foundation.

[58] It is important to situate this submission within the context of Dr. Booth’s opinion evidence. Dr. Booth explained that his assessment of the appellant’s risk as “significant” was influenced by his work on Ontario Review Board cases, where an offender’s risk assessment includes not only the likelihood, but also the type of violence that may occur. Dr. Booth explained that, according to the appellant’s actuarial tests, there was a low to moderate likelihood of an extremely violent offence, but that he concluded that there was a significant risk of violent reoffence having regard to the violent index offences during which the appellant showed significant and substantial indifference to the consequences to the victims, the fact that nothing has been done to change whatever motivated the behaviour, and the appellant’s continued denials of involvement in the offences despite overwhelming evidence.

[59] Dr. Booth relied on seven clinical factors to support his opinion that the appellant was unlikely to be inhibited by normal standards of behaviour in the future and constituted a threat to the life, safety and physical and mental well-being of members of the public: (1) the high degree of planning for the offences in the appellant’s purchase of items a month earlier, and packing a duffel bag with clothing to make a get away from the crime scene; (2) the lack of impulsiveness in his commission of the offences, confining the victims for over two hours before cutting Ms. Thomas’s throat three times; (3) the display of a lack of moral compass and absence of any expression of remorse for the victims’ injuries, with the appellant having essentially played with and tortured the victims; (4) the brutality of the offences; (5) the lack of empathy the appellant showed for the victims during his psychiatric assessment, although he expressed some emotion when discussing his sister; (6) the appellant’s denial of any involvement in the offences where the evidence against him was overwhelming; and (7) his refusal to cooperate including his denial of being the perpetrator of the offences, which means there is no possible treatment because his motivation remains unexplained.

[60] Dr. Booth was asked in cross-examination whether he agreed with Dr. Gojer’s opinion that, based on the single episode, a prediction of future risk could not be drawn clinically. Dr. Booth disagreed. He referred to the circumstances of the index offences, the appellant having shown significant and substantial indifference to the consequences to the victims, and his ongoing indifference, and said that “based on that behaviour and the fact that he hasn’t really done anything to change whatever motivated the behaviour, I think it is a logical clinical inference that that’s likely to happen again”. Dr. Booth confirmed it was a significant risk, which encompassed not just the probability of the occurrence but the severity of violence. He referred again to the seven clinical factors that informed his opinion that the appellant was unlikely to restrain his impulses in the future. Dr. Booth rejected the suggestion that his approach was unscientific, and stated that he relied on his clinical experience as a forensic psychiatrist.

[61] In cross-examination, Dr. Booth was asked whether there was any scientific literature or studies that supported his opinion and reliance on the seven clinical factors. The sentencing judge provided Dr. Booth with some time to look into the question. After a break of an hour and a half, Dr. Booth returned to answer the question. He prefaced his remarks by saying that there were some limitations to his review of the scientific literature (including the limited time he had), and the fact that it would be reasonable for two professionals to have different opinions on the issues. Nevertheless, he referred to various academic writings, including an article that concluded that “pre-meditated aggression remains a predictor of recidivism even with general aggression frequency”; a book where the authors identified a strong correlation between re-offence and an offender’s anti-sociality (“which included showing no remorse for the crime, taking no responsibility for their own behaviour, and showing no empathy or concern for others”); an article referring to a number of studies equating low empathy to higher rates of recidivism; and what he described as a “very robust study” concluding that there was evidence of an inverse relationship between more mature moral development and recidivism.

[62] In his evidence, Dr. Gojer rejected Dr. Booth’s approach as “unscientific”. Although he acknowledged that the seven clinical factors that Dr. Booth had identified would cause a psychiatrist concern, he insisted that they were not factors that had ever been tested scientifically to give a probability estimate for risk of reoffence. He offered a number of criticisms of Dr. Booth’s seven clinical factors.

[63] The appellant contends that the sentencing judge failed to critically assess Dr. Booth’s reliance on clinical factors for which there was no scientific basis and, in particular, that he failed to address Dr. Gojer’s evidence criticizing the use of these factors and his commentary on the scientific literature Dr. Booth referred to in his cross-examination.

[64] I disagree. First, the sentencing judge referred to Dr. Gojer’s criticisms of the clinical factors at paras. 36 to 41 of his reasons. He also referred to the fact that Dr. Gojer acknowledged it was a “value judgment” whether to rely on clinical factors or not.

[65] Second, there was no reason for the sentencing judge to address the four articles Dr. Booth identified, and Dr. Gojer’s specific criticisms of the articles. This evidence was of very little importance. The issue was whether Dr. Booth’s approach using clinical factors was “unscientific” as Dr. Gojer had suggested, in part because of a lack of support in academic literature. Dr. Booth met the challenge when, during a 90-minute break, he found four academic articles. Dr. Gojer was asked in his examination in chief whether the articles supported Dr. Booth’s use of the various clinical factors to assess risk. In respect of one article, he replied that while it purported to support the connection between lack of a moral compass and violent recidivism, he disagreed with the article. He described the second article as a “very neutral paper” that had no connection with the appellant’s case because it was about treatment. Dr. Gojer said that while the third article might support what Dr. Booth said about people with impulsive aggression having less history of repeated offending as compared with non‑impulsive aggression, there were limitations in the study sample such that the results could not be generalized to this case. As for the final paper dealing with emotional intelligence and recidivism, Dr. Gojer questioned its application to the appellant.

[66] The appellant’s counsel did not suggest what conclusions, if any, ought to have been drawn from this evidence, or how it served to undermine Dr. Booth’s evidence. The point of the evidence was simply that Dr. Booth was challenged on whether there was any basis in the scientific literature for the clinical factors he had identified. He found four relevant articles. The fact that Dr. Gojer did not see the articles as relevant to the assessment of the appellant’s risk, or had criticisms of the articles, was irrelevant. Indeed, in closing submissions, defence counsel made no mention at all of Dr. Gojer’s brief comments on the articles.

(3) Conclusions Drawn from the Conflicting Expert Evidence

[67] Ultimately it was for the sentencing judge to determine whether he accepted Dr. Booth’s approach to the assessment of risk, including the use of clinical factors. As he noted, Dr. Gojer did not say that the clinical factors identified by Dr. Booth could never be used when assessing the risk of future violent acts. Dr. Gojer testified that this was a value judgment. He explained why, in his opinion, reliance on the actuarial tests was appropriate, even though he acknowledged that such tests were not complete and had to be contextualized by a clinical forensic psychiatrist. The sentencing judge fairly and accurately outlined the evidence of both forensic psychiatrists, and then explained why he accepted Dr. Booth’s opinion that the appellant remained a significant risk of committing violent acts in the future and that the brutality of his actions when committing the offences compelled the conclusion that his behaviour in the future was unlikely to be inhibited by normal standards of restraint.

[68] The fundamental difference between the two psychiatrists was in whether the circumstances of the offences should be considered in predicting future risk in this case. Dr. Gojer’s opinion was that, in the absence of any explanation on the part of the appellant, it was impossible to predict his risk of reoffence by looking at clinical factors; there simply were no clinical factors to consider. Instead, he fell back on the actuarial test results, which he acknowledged likely underestimated risk. Ultimately, Dr. Gojer expressed the opinion that a psychiatrist could not provide an opinion on whether, based on the one offence, the appellant would or would not be likely to be inhibited by normal standards of restraint in the future, and that this was a decision for the court. Dr. Booth, by contrast, was prepared to evaluate risk based on clinical factors, including all of the circumstances of the offences. Among other things, the degree of planning, the brutality of the appellant’s actions, his words and actions while carrying out the offences, and his behaviour after the fact, together with the absence of any mental health or other explanation for his conduct that would suggest that he was treatable, led Dr. Booth to conclude that the appellant was unlikely to be inhibited by normal standards of restraint in the future.

[69] The circumstances speak clearly: there was no comprehensible external reason why the appellant would have committed the offences. The circumstances suggest that he set out to make a random, lethal attack on strangers – to restrain, confine and torture his victims over a prolonged period of time. There was no indication of a mental disorder, the influence of any substances, and no indication of remorse. The appellant has continued to deny his involvement in the offences. The relevance of his continued denial of involvement in the offences despite overwhelming evidence is that nothing in his risk profile has changed, because he has not provided any information that might suggest some form of treatment or control would be possible.

[70] Contrary to the appellant’s submission in this appeal, the sentencing judge did not resort to a default position of assuming, in the absence of any information about the appellant’s motivations in committing the predicate offences, that he was likely to offend brutally in the future. While it may well have been Dr. Gojer’s opinion that there was an absence of information about the appellant’s motivations, and therefore no reliable indicator of risk other than the actuarial tests, that opinion was rejected by the sentencing judge. Instead, the sentencing judge took into consideration the circumstances of the predicate offences to assess their brutality and, with the assistance of Dr. Booth’s clinical risk assessment, he was satisfied that the appellant met the test under s. 753(1)(a)(iii). The sentencing judge did not accept Dr. Gojer’s skepticism about clinical factors, and indeed his rejection of the premise underlying that subsection: that the brutality of the circumstances of an offence could inform the assessment of future risk.

[71] For these reasons, I am not persuaded that there is any basis to interfere with the sentencing judge’s designation of the appellant as a dangerous offender and the imposition of an indeterminate sentence. While the appellant argued in his factum that the indeterminate sentence was inappropriate, counsel did not press this argument at the hearing of the appeal. There was simply no evidence in this case to suggest any less restrictive means to reduce the public threat posed by the appellant to an acceptable level.

[72] Finally, it is important to observe that with an indeterminate sentence, the appellant remains eligible for parole, within the discretion of the Parole Board. According to the Criminal Code, a dangerous offender who receives an indeterminate sentence is eligible for full parole at seven years from the date they were taken into custody: s. 761(1). The Parole Board will consider whether the appellant’s circumstances, at the time of the review, are such that he can be released into the community without undue risk to the public. As noted by Molloy J. in R. v. R.M., 2005 CarswellOnt 6831 (S.C.), “[t]he Parole Board will have a considerable advantage in making that decision [at the time of its review] as it will be in a position to evaluate [the appellant’s] progress in the institution”: at para. 125. If the Parole Board decides not to grant parole, it shall conduct further reviews every five years: Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 123(5.01).

G. THE CONVICTION APPEAL

[73] The appellant appealed his conviction on a number of grounds set out in his factum: that the trial judge, throughout the course of the trial, unduly emphasized the position of the Crown and minimized the defence position; that the trial judge mishandled evidence of the appellant’s good character, effectively removing it entirely from consideration by the jury; and that the trial judge erred in failing to instruct the jury on the routes to liability for the alleged offences of robbery that were available on the evidence. I have considered the grounds set out in the appellant’s factum and, on the record before this court, I have concluded that they are entirely without merit.

[74] In any event, if any such error had been made, the curative proviso would apply. I agree with the Crown that, on any objective analysis, given the eyewitness identification provided by the victims, the appellant’s explanation for how he obtained Ms. Thomas’s vehicle, why he fled from the police on the highway, how the blood with Mr. Renaud’s DNA and the strip of duct tape ended up on his t-shirt, and how his DNA was present on the various items in the vehicle was completely unbelievable. The evidence implicating the appellant was overwhelming, and there is no realistic possibility that a new trial would lead to a different outcome.

[75] I would therefore dismiss the conviction appeal.

H. DISPOSITION

[76] For these reasons, I would dismiss the appeal in respect of both the conviction and the dangerous offender designation and sentence.

Released: April 29, 2022 “K.F.” “K. van Rensburg J.A.” “I agree. K. Feldman J.A.” “I agree. Coroza J.A.”

[1] For the breaking and entering and theft convictions, the appellant received a suspended sentence plus one day of probation, after credit for five years of pre-trial custody. He received a suspended sentence plus one day of probation, after credit for two years, for the conviction for failing to stop for a police officer. The appellant was also sentenced to a lifetime prohibition order pursuant to s. 109 of the Criminal Code, a DNA order, a non-communication order pursuant to s. 743.21(1) of the Code, and a disclosure order pursuant to s. 760 of the Code.

[2] While both psychiatrists found the appellant’s comments about the “Andersons” or “Sandersons” and that “[his] boss wouldn’t like it” odd or unusual, neither concluded that he was experiencing a psychotic illness at the time of the offences.