COURT OF APPEAL FOR ONTARIO DATE: 20220203 DOCKET: C68255 Feldman, MacPherson and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Laura Brahaney Appellant

Counsel: Jolene Hansell, for the appellant Rebecca Schwartz, for the respondent

Heard: January 21, 2022 by video conference

On appeal from the judgment of Justice Hugh L. Fraser of the Ontario Court of Justice, dated June 14, 2019.

REASONS FOR DECISION

[1] The appellant was convicted of ten offences arising out of the robberies and severe assaults on two victims. In a separate proceeding, she was convicted of four offences arising out of a similar robbery committed on another victim. All three attacks were planned and carried out by the appellant together with others, and all three were carried out within a ten-day period. The appellant was found to be a dangerous offender and sentenced to a determinate sentence of ten years, to be served consecutively to the sentence of five and one-half years for the similar offences which had been tried separately, followed by a ten-year long-term supervision order. The appellant appeals the dangerous offender designation and the sentence.

I. Background Facts

[2] The three robberies were all committed within a ten-day period in September 2014. There were three victims, referred to here as Mr. H., Mr. C., and Mr. M. The following is the description of the first and second robberies (the “predicate offences”), taken from the reasons of the sentencing judge on the dangerous offender application:

[Mr. H.] had been involved in Facebook communication since the spring of 2014 with a woman whose name he believed was Tracy. In response to a request that he send her $100 by Interac e-mail transfer, [Mr. H.] completed three such transactions to the account of Ms. Brahaney for a total of $300.

In early September 2014, Lisa Woolley had begun communication with [Mr. H.] on Facebook. Ms. Woolley had told [Mr. H.] that she wanted to hang out with him at his place. On September 4th, 2014, [Mr. H.] was at his residence when he received a Facebook message from Ms. Woolley suggesting that they meet.

[Mr. H.] and Ms. Woolley agreed to meet about two blocks away from [his] residence. This was part of a plan orchestrated by Ms. Brahaney to befriend [Mr. H.] and then rob him. When [Mr. H.] went to the agreed upon rendezvous location at 10:45 p.m. on September 4th, the person waiting for him was Laura Brahaney, not Lisa Woolley. Ms. Brahaney introduced herself as “Tracy”. She asked [Mr. H.] for his address, claiming that she wanted to text her mother to let her know where she was. This was actually a pretext to obtain the information so that she could relay it to her accomplices.

Ms. Brahaney and [Mr. H.] entered the … apartment building where the inner lobby is secured with a key fob lock. After passing through the secured door, Ms. Brahaney turned back and held the door open for her accomplices, Jake Hopwood and Traevonne Mattis. Once inside [Mr. H.]’s apartment, they confined [Mr. H.] on the bed, blindfolded him, bound his hands and repeatedly assaulted him. Ms. Brahaney, Mr. Mattis and Mr. Hopwood then proceeded to remove every item of value that they could find in [Mr. H.]’s apartment. They took computer equipment, a television, collectible coins, a small safe, and a vacuum cleaner. The transporting of the items from the apartment to a vehicle outside was captured on the building’s surveillance camera located in the lobby.

Ms. Brahaney then led [Mr. H.] out of the apartment building, accompanied by Mr. Mattis and Mr. Hopwood. Ms. Brahaney placed [Mr. H.] in the back seat of her SUV and drove him to a payphone outside of a [gas service station] in Cumberland, Ontario. While at the service station, [Mr. H.] was forced to telephone his father to make a ransom demand on behalf of his captors. Four calls in close sequence were made to [Mr. H.]’s father, but the phone calls were never answered. Ms. Brahaney, accompanied by Mr. Hopwood and Mr. Mattis, eventually drove [Mr. H.] to Ms. Brahaney’s residence. He was still bound and blindfolded when they removed him from the car. [Mr. H.] was then taken to the basement of the residence where he was placed in a dog crate and held there for over 24 hours.

On Saturday, September 6th, 2014, [Mr. H.] was removed from the dog crate and loaded into the back of Ms. Brahaney’s vehicle as his captors were leaving for a planned trip to Toronto. Ms. Brahaney drove the vehicle while Lisa Woolley, Traevonne Mattis and Jake Hopwood were passengers along with [Mr. H.]. They brought [Mr. H.] to a wooded area near Gananoque, Ontario. His outer clothing was cut off. Mr. Mattis and Mr. Hopwood marched [Mr. H.] into the woods. Mr. Hopwood then choked [Mr. H.] into unconsciousness and left him for dead. Ms. Brahaney, Mr. Hopwood, Mr. Mattis and Ms. Woolley then continued on their journey to Toronto.

[Mr. H.] eventually regained consciousness and walked through the woods until he found a house and rang the doorbell, seeking assistance of the occupants.

[Mr. H.] sustained bruising and swelling to his right eye, bruising to his right shoulder and various cuts and bruises to his face, neck, torso, arms and wrists. He was admitted to the Kingston General Hospital on September 6th and released on September 7th.

A search warrant was later executed on Ms. Brahaney’s residence. Several items belonging to [Mr. H.] were found in the residence along with the dog crate where [Mr. H.] had been confined. A piece of rope found in the basement had [Mr. H.]’s blood and DNA on it.

Ms. Brahaney’s cell phone was also searched pursuant to a search warrant. Her phone contained text messages in which she was communicating with her accomplices. There were photographs of some of [Mr. H.]’s property found on her phone as well as text messages to her former boyfriend, in which she included photographs of her swollen knuckles which she claimed had resulted from beating someone up.

Before [Mr. H.] was deposited in the woods by his captors, Ms. Brahaney had begun to communicate with the next victim, [Mr. C.].

On September 6th, 2014, [Mr. C.] had checked into a room at [a motel] in Richmond, Ontario. [Mr. C.] had made plans to meet Ms. Brahaney for a sexual liaison. The two had been acquainted online for several years and had met on one occasion a few years prior to the September 6th meeting.

Ms. Brahaney, in text messages sent to [Mr. C.], repeatedly requested that they meet at his home, but [Mr. C.] insisted on meeting at a motel. Ms. Brahaney met [Mr. C.] at the motel, then the two drove to a nearby gas station. [Mr. C.] agreed to pay for the fuel that she used in driving to Richmond Hill. The two then went to a nearby Domino’s Pizza establishment before returning to the room at the [motel].

The motel’s surveillance cameras show [Mr. C.] and Ms. Brahaney entering his motel room at 10:49 p.m. After arriving at the room, Ms. Brahaney left a short time later, ostensibly to retrieve a phone charger that [Mr. C.] required. Shortly after Ms. Brahaney left the room, she contacted a group of four accomplices, Jake Hopwood, Traevonne Mattis, Min Jin Son, and a male identified only as “Trouble Beats”. A plan had been formulated to rob [Mr. C.] of his belongings. Mr. Hopwood and Ms. – and Trouble Beats would deal with [Mr. C.], while Mr. Mattis and Mr. Son were to act as lookouts.

Mr. Hopwood and Trouble Beats forced the motel room door open as [Mr. C.] stood behind it and smashed the door into [Mr. C.]’s leg. [Mr. C.] was then confined to the motel room, beaten and stabbed. His assailants repeatedly demanded money and threatened him. His wallet and cell phone were taken.

Ms. Brahaney took [Mr. C.]’s car keys, then accompanied by Mr. Son, she drove the car to the residence that [Mr. C.] had been sharing with his partner. In response to a demand from the offenders, [Mr. C.] had given the address of his partner … as his home address. Ms. Brahaney entered the … residence and when confronted by [Mr. C.’s partner], she demanded to know where [Mr. C.]’s room was because she was going to retrieve some of his things. [Mr. C.’s partner] told Ms. Brahaney to leave her residence before the police were called and Ms. Brahaney and Mr. Son left [the] residence in [Mr. C.]’s car.

The offenders who remained in the motel room warned [Mr. C.] not to call for help and left him in the motel room severely injured and bleeding profusely. [Mr. C.] called 9-1-1 from the motel room phone and was eventually taken to hospital by ambulance. [Mr. C.] sustained a compound open fracture of his right ankle as well as ruptured right quadriceps tendon, both of which required surgery. He also sustained stab wounds to his right buttock, a laceration to his left ear and a laceration to the back of his head.

[3] The following is the sentencing judge’s description of the offences arising from the third robbery (the “related offences”) that had been tried separately by Labrosse J., sitting with a jury:

On September 13th, 2014, [Mr. M.] met up with Laura Brahaney and Hibanura Ali and went for drinks at [a pub] in the city of Ottawa. After some time, he left the pub with Ms. Brahaney and Ms. Ali in Ms. Brahaney’s SUV. At some point, two men emerged from the SUV’s trunk and proceeded to beat [Mr. M.] either in the rear of the SUV or in a wooded area nearby. One of the two men was armed with a knife. [Mr. M.] was forced to provide his bank card along with his personal information number and the group attempted to withdraw money from his bank account. He was then left in the parking lot and threatened not to call the police. [Mr. M.] suffered serious injuries which included five fractures in the areas of his eyes, nose and face.

[4] With respect to the related offences, a jury found the appellant guilty of kidnapping, robbery, aggravated assault and conspiracy to commit robbery. The appellant was sentenced by Labrosse J. to five and one-half years, less 25 months of pre-sentence custody and 15 months’ credit for restrictive bail conditions.

[5] The appellant also had a record for two convictions for unlawful possession or sale of tobacco products, for which she served two conditional sentences in the community in 2009-2010.

[6] The appellant was on bail prior to her sentencing on the related offences from April 2016 to January 2018 and resided at a halfway house, JF Norwood House, operated by the Elizabeth Fry Society. During that time, she engaged in some counselling sessions and received a positive report. The halfway house is prepared to have her back when she is released after serving her custodial sentence. She also completed the Women’s Engagement Program in the penitentiary, as well as some other programs, and had expressed a desire to change.

[7] Following her convictions on the related offences, the appellant was assessed under s. 21 of the Mental Health Act, R.S.O. 1990, c. M.7, by Dr. Gray, a psychiatrist at the Royal Ottawa Mental Health Centre. He found that there was no mental illness that caused the appellant to commit the offences, but that the planning of the robbery on the related offences suggested antisocial personality disorder traits and generalized anxiety disorder.

[8] The appellant was also assessed by a forensic psychiatrist from CAMH, Dr. Iosif, for the purpose of the dangerous offender application under s. 752.1(1) of the Criminal Code, R.S.C., 1985, c. C-46. Dr. Iosif diagnosed antisocial personality disorder with borderline histrionic traits, as well as strong psychopathic characteristics. She also found that the appellant met the criteria for conduct disorder prior to the age of 15, a prerequisite to a diagnosis of antisocial personality disorder. The doctor commented that the period from September 4-13 when the three criminal incidents occurred showed “someone who is in constant need of stimulation, impulsive, irresponsible, risk seeking, manipulative, and quite extraordinarily callous. The criminal versatility exercised in that period of barely one week is striking.”

[9] Dr. Iosif applied three risk assessment tools, known as the PCL-R, the HCR-20/FAM, and the SAPROF. Each of them identified a moderate-high risk of future offending. However, these tools are limited in their ability to predict risk for women as opposed to men. Dr. Iosif also acknowledged that there are no risk assessment tools that predict the severity of future offending. She concluded, however, that the appellant’s “risk would increase in the context of opportunity, association with anti-social peers, and substance use.” Substance use and association with anti-social peers were ongoing factors for the appellant. She had conducted such associations while at JF Norwood House. She was also diagnosed with alcohol use disorder in remission in a controlled environment.

[10] Dr. Iosif made the following comment regarding possible dangerous offender status, which was referred to by the sentencing judge:

The most salient diagnosis in Ms. Brahaney’s case is her personality structure. Personality disorders are stable over time and difficult to change. Intensive psychological intervention is required over years to affect even minor shifts.

Psychiatric medications do not affect personality structure. The psychological underpinnings that contributed to Ms. Brahaney’s offences remain intact. Ms. Brahaney has had little psychological treatment to address such issues at this juncture.

Ms. Brahaney tends to minimize her role and difficulties and therefore her motivation for treatment is somewhat questionable, although she has indicated that she wants to pursue programming in federal institutions. Clarifying exactly – what exactly she is motivated to address might be helpful in determining her course in that regard.

[11] The sentencing judge also noted the following from Dr. Iosif’s report on the topic of risk management and treatment recommendations:

Ms. Brahaney requires a substantial level of intervention and significant resources to decrease her risk. Her needs should be directed toward therapies that focus on maladaptive personality traits, such as skill building in learning self-regulation and self-management skills. Assisting with abstinence from drugs and alcohol, and assistance to engage in meaningful activities including employment would also be helpful. Supportive family interactions would also be of benefit.

II. The Sentencing Judge’s Reasons

[12] The sentencing judge clearly set out the requirements for a dangerous offender designation by referring to the recent Supreme Court of Canada decision in R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, where the court reiterated the four explicit criteria for a dangerous offender declaration: (1) the offender has been convicted of, and has to be sentenced for, a serious personal injury offence; (2) this predicate offence is part of a broader pattern of violence; (3) there is a high likelihood of harmful recidivism; and (4) the violent conduct is intractable. The sentencing judge noted that Boutilier clarifies that treatability is considered at both the designation and the sentencing stages, and that intractability is a requirement for the designation.

[13] In this case, there was no dispute that the predicate and related offences constitute serious personal injury offences. The sentencing judge made a number of findings based on the record. He first found that the robberies established a pattern of repetitive behaviour with a very high degree of similarity, including that the appellant targeted male victims with sexually manipulative behaviour, and subjected them to severe violence at the hands of her male accomplices. The pattern showed a failure by the appellant to restrain herself. This conclusion was supported by Dr. Iosif in her report.

[14] The sentencing judge next turned to the role of treatability in the analysis. He again referred to Boutilier, where the Supreme Court confirmed that at the designation stage, the treatment prospects must be so compelling that the court cannot find beyond a reasonable doubt that the individual presents a high likelihood of harmful recidivism or that their violent pattern is intractable. However, at the penalty stage, the prospect of treatability will affect the appropriate sentence to manage the threat.

[15] The appellant argued that the risk assessment tools did not indicate that her risk was to commit violent offences, just a general risk, and that the appellant’s successful stay at JF Norwood House showed that she is treatable and manageable in the community. In response, the sentencing judge expressed the view that too much was made of the appellant’s success at JF Norwood House. The extent and success of any counselling there was unclear. The staff’s very positive appraisals of the appellant were not fully explained. They were unaware that she was having phone calls with anti-social associates while there, and that she took pride in her associations and was knowledgeable about their activities. She also had visits from unsavoury people. Dr Iosif’s report stated that the JF Norwood House counselling sessions did not have a discernable result or effect, and that her interview showed that the appellant lacked remorse or insight into her offences, and that she continued to deflect blame and to minimize her responsibility.

[16] The sentencing judge acknowledged the letter the appellant filed at the hearing, in which she expressed her remorse, but noted that “there is still a paucity of evidence that would indicate that Ms. Brahaney has gained any insight into why she committed these horrendous crimes.”

[17] Having found that the criteria in s. 753(1)(a)(i) were satisfied, the sentencing judge went on to find that the brutal behaviour associated with the offences compelled the conclusion that the appellant’s behaviour in the future “was unlikely to be inhibited by normal standards of behavioural restraint.” The sentencing judge referred again to the appellant’s cruel and sadistic conduct against Mr. H., including scrubbing his back with a hard brush and metal scraper, then rubbing him with gasoline and bleach, holding him in a dog crate, and telling him she had cut off his cat’s tail. The appellant had described the beating and stabbing of Mr. C. by the others as “fun”. The sentencing judge therefore found that the criteria under s. 753(1)(a)(iii) had also been satisfied beyond a reasonable doubt.

[18] The sentencing judge found that the appellant has a high risk of violent reoffending, which he based, in part, on his finding that the three offence incidents demonstrated “a disturbingly casual attitude towards extreme violence”:

The circumstances of these three offences demonstrate a disturbingly casual attitude towards extreme violence. This, along with the identified personality disorder and the lack of insight into why these offences were committed, contribute to the likelihood that Ms. Brahaney will cause death or injury or severe psychological damage through a failure to restrain her behaviour in the future.

[19] Regarding the role of the risk assessment tools in his finding of a high risk of violent offending in the future, the sentencing judge noted that the tools do not give any information about the severity of future offences and explained that they were only part of the evidence.

[20] The sentencing judge concluded that the evidence regarding the appellant’s treatment prospects was not sufficient to dissuade him from being satisfied beyond a reasonable doubt that the appellant had a “high likelihood of harmful recidivism” and that the violent pattern was intractable. As a result, the sentencing judge was required to find the appellant to be a dangerous offender.

[21] Turning to the imposition of a sentence for the predicate offences, the sentencing judge instructed himself from Boutilier that the court is to consider the least coercive sentence first, and referred to s. 753(4.1), which sets out the presumptive sentence. That sentence is detention in a penitentiary for an indeterminate period unless the court is satisfied by the evidence of a reasonable expectation that a lesser measure under s. 753(4)(b) or (c) will adequately protect the public from the commission of murder or a serious personal injury offence.

[22] Based on the evidence of Dr. Iosif that the appellant’s risk could be decreased with the appropriate intervention therapies and family support, the sentencing judge concluded that there is a reasonable expectation that a determinate sentence combined with a long-term supervision order would adequately protect the public against the appellant committing murder or a serious personal injury offence, and was the least coercive sentence that could adequately manage the risk. He then listed six reasons to support that finding: (1) Dr. Iosif’s conclusion that treatment, supervision and release into the community over a long period of time could make the risk to the public a manageable one; (2) the appellant has commenced programming in the penitentiary and is willing to continue with it; (3) in her letter to the court the appellant states that she wants to change and has pro-social goals that are realistic; (4) the appellant is motivated to be a better mother for her daughter, to spend meaningful time with her and steer her on the right path; (5) the appellant belatedly acknowledged the harm she had done; and (6) a long-term supervision order will have detailed conditions specific to the needs of the appellant.

[23] For the determinate sentence, the Crown asked for 15-20 years, reduced to 12-17 years to give effect to the totality principle, as it would be consecutive to the five and one-half year sentence imposed for the related offences. The Crown also sought a ten-year long-term supervision order to follow. The appellant’s counsel submitted that a two and one-half to three and one-half year determinate sentence was appropriate. He also submitted that the court should view the three incidents as a “spree”, such that applying the totality principle would require a significant reduction in the total sentence.

[24] The sentencing judge rejected the “spree” submission. The three robberies were each planned in advance; each victim was lured to an ambush where severe gratuitous violence was done to him. The sentencing judge concluded that “these were not impulsive crimes committed in quick succession by someone who was having a bad week.”

[25] The sentencing judge viewed each of the robberies as groups of serious offences including a violent home invasion, kidnapping with a ransom demand, violence and confinement. Two of the victims maintain permanent physical injuries including disfigurement and ongoing pain. The sentencing judge reviewed case law and sentencing ranges for these crimes, and imposed a total sentence of ten years to be served consecutive to the five and one-half years for the related offences, taking totality into account, plus a ten-year long-term supervision order. The sentencing judge stated, in concluding, that the combined period of supervision he was imposing was 20 years, which while a lengthy period, would give the appellant hope that she could become a productive, pro-social member of society.

III. Issues on the Appeal

[26] The appellant asks the court to set aside the dangerous offender designation, and to reduce the length of the determinate sentence. The appellant raises the following issues:

1. Did the sentencing judge misapprehend the evidence regarding whether the appellant had a high risk of violent recidivism?
2. Did the sentencing judge err by failing to give adequate effect to the totality principle and by imposing a crushing total sentence?

IV. Analysis

(1) Did the sentencing judge misapprehend the evidence regarding whether the appellant had a high risk of violent recidivism?

[27] 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.

[28] The appellant submits that her dangerous offender designation is unreasonable because the sentencing judge either misapprehended or did not give sufficient weight to the appellant’s treatability, as evidenced by her successful stay in JF Norwood House without committing any offences, her willingness to participate in treatment, and her motivation and expression of remorse. The appellant also submits that the trial judge erred in relying on the risk assessment tools, which only predict the risk to reoffend in general, but not necessarily violently.

[29] We do not accept these submissions. The sentencing judge was alive to each of the arguments presented and responded to them. He understood the limits of the risk assessment tools, which predict general recidivism including violent recidivism but without differentiation. He looked at the history of the three robberies and the violence perpetrated, together with the appellant’s callous indifference to it, the planning, and her failure to acknowledge her role or to take responsibility, until she did so to some extent in her letter to the court. He also considered the limited evidence about any success at treatment so far, as well the nature of her diagnosis of anti-social personality disorder, which is very difficult to change through treatment. We see no error in his apprehension of the evidence, his analysis, or his conclusion.

(2) Did the sentencing judge err by failing to give adequate effect to the totality principle and by imposing a crushing total sentence?

[30] The appellant submits that the sentencing judge erred by not viewing the three incidents as a spree that should have attracted a lower total sentence, and by not taking into account the crushing effect of the total sentence of 15.5 years for the three incidents. The appellant argues that, in accordance with the totality principle, the sentence should be reduced to five years served consecutively to the five and one-half year sentence on the related offences (for a total of 10.5 years). The appellant also asks this court to reduce the long-term supervision order from ten years to five years.

[31] We do not accept these submissions. The sentencing judge adverted to totality a number of times in his consideration of the appropriate determinate sentence. He specifically rejected the “spree” characterization with cogent reasons. He was alive to the need to impose the least onerous and least restrictive sentence taking the record into account. Having found that the possible potential for treatment meant he would not impose an indeterminate sentence, the sentencing judge considered in detail the appropriate determinate sentence for the two predicate offences, factoring in the five and one-half year sentence for the related incident. The length of the long-term supervision order imposed by the sentencing judge is supported by the evidence, including Dr. Iosif’s recommendation of a gradual and slow released into the community. We see no error in the sentencing judge’s approach, or in his conclusion.

[32] The appeal is therefore dismissed.

K. Feldman J.A.

J.C. MacPherson J.A.

J.A. Thorburn J.A.