Court of Appeal for Ontario

Date: 2022-06-23 Docket: C68617

Trotter, Harvison Young and Thorburn JJ.A.

Between

Her Majesty the Queen Respondent

and

Shane Thomas Appellant

Counsel: Alex Lam, for the appellant Erica Whitford, for the respondent

Heard: June 15, 2022

On appeal from the sentence imposed on December 19, 2018 by Justice Robert A. Clark of the Superior Court of Justice.

Reasons for Decision

Background

[1] After a judge-alone trial, the appellant was found guilty of attempted murder, aggravated assault, and uttering a threat to cause bodily harm. He was declared a dangerous offender and sentenced to an indeterminate term of imprisonment. He appeals his indeterminate sentence.

[2] The appellant has an extensive criminal record for violence. At the time of the predicate offences, the appellant was serving a Long-Term Sentence Order (“LTSO”) as a result of a 2007 conviction for aggravated assault for stabbing a woman in the head two times with an eight-inch blade knife. The appellant and this woman were co-resident in a rooming house. He attacked her because she did not allow him to use her phone immediately when he asked. In addition to her stab wounds, she sustained defensive cuts to her hands. He was sentenced to 15 months’ imprisonment (after being credited with 57 months of pre-sentence custody) and a 10-year LTSO.

[3] As part of his LTSO, the appellant was required to reside at the Keele Community Centre Correctional Centre, a halfway house in Toronto. The appellant did not get along with one of the other residents, Michael Levert. On May 14, 2015, after a trivial dispute with Mr. Levert’s roommate about coffee, the appellant armed himself with two knives and entered Mr. Levert’s room and immediately attacked him. He stabbed Mr. Levert in the neck, head, and torso – over 20 times in all – causing serious injuries. As the trial judge said, “it is little short of a miracle that Mr. Levert survived.” The appellant was eventually persuaded to stop his attack by a staff member, but not before stabbing Mr. Levert again. He threatened Mr. Levert’s roommate with bodily harm.

[4] The appellant was 39 at the time of sentencing. As already noted, by then he had already accumulated an extensive criminal record, with around 30 convictions, many of them for violent offending.

[5] In addition to the previous stabbing incident at the rooming house mentioned above, in 1997 the appellant was found guilty of aggravated assault. The appellant had attacked a mall security officer with a knife after the officer attempted to prevent the appellant from stealing a car. The appellant stabbed him twice in his side, once in his neck, four times in his back, and once to the top of his head.

[6] The appellant also has an unenviable record for misconduct while incarcerated. He has over three dozen findings of misconduct, including threats and violence to fellow inmates and, albeit to a lesser extent, institutional staff.

[7] The appellant is the author of a self-published book entitled Unstoppable. In lurid detail, it recounts many of his crimes over the years. At trial, the appellant testified that the book was an authentic account of his actions; the trial judge said “I find as a fact that what he says is true.” In one part of the book the appellant describes how he would sometimes draw a human figure on his cell wall and practice stabbing in the vital areas with makeshift weapons. The trial judge found this “deeply troubling.”

[8] The appellant suffers from schizophrenia. At trial, he claimed that he was not criminally responsible on account of mental disorder. The trial judge rejected this defence. The appellant has been treated for this illness over the years. He was medicated at the time of his most recent offences. The appellant has also been diagnosed with an anti-social personality disorder.

[9] At the time of sentencing, the trial judge had available to him forensic assessments of the appellant’s risk of future offending – the VRAG and the PCL-R. He scored high on both, above the 90th percentile mark for future violent offending.

The Trial Judge’s Decision

[10] The trial judge provided detailed and careful reasons for finding the appellant to be a dangerous offender and for imposing an indeterminate sentence. His decision to classify the appellant as a dangerous offender was based on all three categories in s. 753(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46: (i) a pattern of repetitive behaviour; (ii) persistent aggressive behaviour; and (iii) the brutal nature of the offences. This finding is not challenged on appeal.

[11] Turning to the question of whether he should impose an indeterminate sentence, and why he did not find a LTSO appropriate, the trial judge said: “it is, at the risk of understatement, telling that Mr. Thomas was already designated a long-term offender when he committed the offences on this indictment.” After considering the extensive body of evidence that was adduced on this issue, the trial judge said:

In all of the circumstances, I am not satisfied that Mr. Thomas’ behaviour can be controlled to the degree necessary to adequately protect the public against future violent acts perpetrated by him by any means other than an order requiring his indeterminate detention in a penitentiary.

Discussion

[12] The appellant raises two grounds of appeal in his factum. The first ground is twofold. First, he submits that the trial judge failed to consider the suitability of imposing another LTSO. He submits that the trial judge focused unduly on the index offences and placed undue emphasis on the fact that they were committed while the appellant was serving a LTSO. As the trial judge said:

Mr. Thomas not only reoffended while, as part of his long-term offender order, he was a resident of a halfway house (which is the most secure form of supervision available to an offender outside of the penitentiary), he did so while he was in the actual custodial facility and under the supervision of the staff of that institution.

[13] He returned to this factor later in his reasons:

…in so far as Mr. Thomas was subject to a long-term offender order and, indeed, was within the confines of what passes, however loosely, for a custodial setting at the time he committed the offences for which he now stands before this court, as with the straight determinate sentence, likewise, I fail to see how this option will provide sufficient protection to the public.

[14] In our view, this was a very serious aggravating factor and highly relevant to whether another LTSO could properly protect the public. It was open to the trial judge to assign it the weight that he did.

[15] Second, the appellant submits that the trial judge relied “primarily on fallible and unreliable evidence, being the risk assessment instruments” to conclude that the appellant was at a high risk to reoffend.

[16] We do not accept this submission. The trial judge specifically acknowledged the limitations of risk assessment instruments in terms of their utility in predicting the seriousness of the projected reoffending. Moreover, this evidence was just one component in a multi-factorial analysis. The appellant’s past criminal behaviour – which now includes three serious stabbing incidents – was at the core of the trial judge’s decision that only indefinite detention can adequately protect the public. As he observed, “it would appear that the level of Mr. Thomas’ violence is escalating.”

[17] Finally, the appellant submits that the trial judge failed to consider flaws in the manner in which the appellant’s previous LTSO was implemented. This was due to the fact that, after deducting credit for pre-sentence custody, the appellant was sentenced to 15 months’ imprisonment, which was served in a provincial reformatory. As such, he was not afforded the benefit of programming in the penitentiary. At the sentencing hearing, an official from Correctional Services Canada testified that the “perfect scenario” would be to have an offender receive core programming during the penitentiary portion of their sentence before being moved into the community.

[18] In our view, this submission is based on speculation that the appellant’s performance on the LTSO would have been more successful in the circumstances. Further, it rests on the assumption that the appellant would have participated in any programing that was made available to him while detained, and that he would have benefited from it. Moreover, the appellant has had access to penitentiary programming in the past with evidently poor results. Accordingly, we dismiss this ground of appeal.

Disposition

[19] The appeal is dismissed.

“Gary Trotter J.A.”

“A. Harvison Young J.A.”

“J.A. Thorburn J.A.”