COURT OF APPEAL FOR ONTARIO DATE: 20241212 DOCKET: C68817

van Rensburg, Miller and Gomery JJ.A.

BETWEEN

His Majesty the King Respondent

and

Courtney Carter Appellant

Amy Ohler, for the appellant Raoof Zamanifar, for the respondent

Heard: October 10, 2024

On appeal from the dangerous offender designation and indeterminate sentence imposed by Justice Joseph W. Bovard of the Ontario Court of Justice on April 30, 2019, with reasons reported at 2019 ONCJ 279.

van Rensburg J.A.:

A. Overview

[1] The appellant appeals his designation as a dangerous offender and the imposition of an indeterminate sentence. This appeal focuses on the issue that was central to the dangerous offender hearing: whether the appellant’s violent conduct was something he was capable of overcoming. The appellant does not dispute the fact that his predicate offences fit a pattern of violence. However, he contends that, at both the designation and sentencing phases, the sentencing judge erred in concluding that his pattern of serious offending was intractable and that he was untreatable. The appellant submits that the sentencing judge ignored relevant evidence respecting a gap in his criminal record, that he failed to consider the appellant’s history of failed treatments in the context of all of his circumstances, and that he concluded that the appellant was intractable based on his past experiences when he had not yet participated in more intensive treatment or supervision.

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

B. Facts

[3] The predicate offences took place in 2017 when the appellant, then 26 years old, after a perceived slight, and while high on crystal meth, attacked and seriously injured another person with a meat cleaver in a public library. He then fled the scene, throwing the knife onto the roof of the library. He was apprehended hours later, after he had wandered through a grocery store carrying an eight-inch knife that he eventually stabbed into a box of produce.

[4] At the time of the offences the appellant was subject to two probation orders in respect of convictions in 2015 for, among other things, assaulting a police officer, and in 2016 in respect of convictions for possession of a weapon for a dangerous purpose, uttering threats, breach of probation, failure to comply with an undertaking and failure to attend court.

[5] The appellant pleaded guilty to ten offences, including aggravated assault, two counts of possession of a weapon for a dangerous purpose, and four counts of breach of probation.

[6] At the request of the Crown, the appellant was assessed by Dr. Mark Pearce, a forensic psychiatrist, pursuant to s. 752.1 of the Criminal Code. Dr. Pearce’s report was filed, and he testified at the sentencing hearing. In conducting his assessment, Dr. Pearce met with the appellant for 5.75 hours and he reviewed tens of thousands of pages of documents that covered the appellant’s history, starting with his very difficult childhood. The appellant had a lengthy youth record and adult criminal record, including five convictions for offences involving a knife or meat cleaver between 2014 and 2017, and numerous breaches of probation and supervision orders.

[7] Dr. Pearce testified about the appellant’s history of mental health difficulties and alcohol and drug addictions, the various treatment interventions and rehabilitative programs that were offered to him, his resistance to treatment, and his lack of insight into the connection between his substance use and his violent offending. Dr. Pearce diagnosed the appellant with a very serious, treatment-resistant, polysubstance use disorder and a serious mixed personality disorder, including both a social personality disorder and borderline personality disorder. Based on the results of actuarial testing (including the appellant’s score of 32 out of 40 on the Psychopathy Checklist – Revised, putting him in the 91st percentile of North American male inmates, and the Violence Risk Appraisal Guide indicating he was in the 96th percentile for risk of violent reoffence) and Dr. Pearce’s clinical judgment, it was his opinion that the appellant was at a high risk for violent recidivism. Dr. Pearce expressed the view that the appellant’s substance abuse drove his violent offending, including in respect of the predicate offences when he was likely in a psychotic state.

[8] The Crown relied on Dr. Pearce’s evidence that, while there was a possibility of eventual control, there was no reasonable expectation that the appellant’s risk could be contained after a ten-year long-term supervision order (“LTSO”). The defence argued that the Crown had not proven beyond a reasonable doubt that the appellant’s conduct was intractable because of the lack of evidence that the appellant had been treated for, and unable to overcome, his addictions. The defence also relied on a gap in the appellant’s criminal record between 2007 and 2013 as evidence that there was a reasonable expectation his risk could be controlled in the community following the intensive treatment available in the federal penitentiary system. The defence sought a five-year custodial sentence (in addition to pre-sentence custody) and a ten-year LTSO.

[9] The sentencing judge designated the appellant a dangerous offender pursuant to s. 753(a)(i) of the Code, finding he had been convicted of a serious personal injury offence and he represented “a threat to the life, safety or mental well-being of other persons” based on a pattern of violent conduct. The sentencing judge, citing R. v. Lyons, [1987] 2 S.C.R. 309, recognized that he needed to be satisfied that the appellant’s pattern of violent conduct was likely to continue and that he was unable to surmount this pattern of behaviour. Based on the record before him, the sentencing judge concluded that there was a high risk of violent recidivism, and that the appellant’s offending conduct was intractable. The appellant had a lengthy criminal record, including many acts of violence starting when he was a youth. The sentencing judge, noting the appellant’s five convictions since May 2014 for violent offences using a knife or meat cleaver, observed that the appellant’s criminality and dangerousness to the public had been escalating.

[10] The sentencing judge also observed that the appellant had become increasingly non-compliant with court orders. He was convicted of several offences of breaching court orders, including four orders to take counselling. The sentencing judge noted that the appellant’s criminal behaviour had not been diminished, despite numerous court orders and supervision.

[11] Based on the appellant’s criminal record, his multiple treatment-resistant disorders, his limited insight into the extent of his substance use disorders and his resistant attitude toward treatment to date, the sentencing judge was satisfied beyond a reasonable doubt that the appellant met the statutory criteria in s. 753(1)(a)(i) of the Code for designation as a dangerous offender.

[12] As for the appropriate sentence, the sentencing judge acknowledged that he was required to consider whether to impose a less onerous penalty than an indeterminate sentence if doing so would adequately protect the public. He concluded that the evidence was overwhelming that the appellant was “intractable and incorrigible.” He found that there was no realistic hope or expectation that the appellant would address his personality disorders or his drug addictions in a meaningful way that would protect the public, no matter what the court ordered him to do. As a result, the sentencing judge imposed an indeterminate sentence.

C. Issues on Appeal

[13] The issues on appeal concern the sentencing judge’s determination, at both the designation and sentencing stages, that the appellant’s violent behaviour was intractable and that he is untreatable. The appellant submits that the sentencing judge (i) ignored evidence respecting a gap in the appellant’s criminal record relevant to his ability to control his violent behaviour; and (ii) failed to consider the appellant’s circumstances, including the reasons for his failed treatment in the past and the opportunities for intensive treatment available in the federal prison system.

D. Discussion

(1) Standard of Review

[14] Under s. 759 of the Code, a person designated as a dangerous offender can appeal their designation or sentence on any ground of law, fact or mixed fact and law. The standard of review was summarized in R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at paras. 81 and 85, as follows:

[A]ppellate review of a dangerous offender designation is somewhat more robust’ than regular appellant review of a sentence. Nonetheless, the appellant court must give some deference to the findings of fact of the sentencing judge. In sum, errors of law will be reviewed on a correctness standard, while errors of fact will be reviewed on a reasonableness standard.

Absent any material error of law, a dangerous offender designation is a question of fact. The role of the appellate court is therefore to determine if the designation was reasonable. [citations omitted.]

[15] This standard applies at both the designation and penalty phase: R. v. Jackman, 2024 ONCA 150, at para. 21; R. v. Sawyer, 2015 ONCA 602, 328 C.C.C. (3d) 523, at paras. 26-29.

(2) The sentencing judge did not ignore the gap in the appellant’s record of offending.

[16] The appellant contends that the sentencing judge ignored relevant evidence with respect to the gap in his criminal record between 2007 and 2014. He points to the judge’s statements at para. 304 of his reasons that the appellant had engaged in a repetitive pattern of violent behaviour “since 2005” and at para. 305 where the judge stated that the appellant’s actions “over the last 14 years” demonstrated that he had failed to restrain his behaviour. He submits that the sentencing judge overstated his history of offending, and that while this might not be sufficient to allow the appeal by itself, this is an error that affected the sentencing judge’s assessment of his treatability.

[17] I disagree. Although these passages considered in isolation might suggest that the sentencing judge ignored the gap in the appellant’s criminal record and accordingly overstated his offending behaviour, the reasons as a whole demonstrate that he was alive to the gap in the appellant’s offending between the ages of 16 and 20 in determining that his conduct was intractable.

[18] The sentencing judge referred to Dr. Pearce’s evidence that, while the gap in his criminal record could suggest that the appellant had some potential to be non-violent for at least a few years, what was concerning was the escalation in the appellant’s offences between 2013 and 2017, when the appellant had used knives against strangers who annoyed him, in spite of court orders that prohibited him from possessing weapons. As the judge noted, the appellant’s violent criminal behaviour was not diminished throughout this period through orders and supervision. The sentencing judge considered the appellant’s entire history of violence, which included violence throughout his childhood, assault convictions from 2005 to 2008 and an escalation in violence from 2013 to 2017.

[19] Depending on the circumstances, a gap in offending behaviour may, but does not necessarily, demonstrate that past rehabilitative efforts were effective and indicate that an offender’s risk could be managed through treatment and supervision: see e.g., R. v. Hornby, 2021 ABCA 254, at para. 44. Where, as here, the offender had become increasingly violent and the violence was uninterrupted, the sentencing judge “reasonably avoided treating the gap in the appellant’s criminal record as predictive of his subsequent risk”: R. v. Eamer, 2024 ONCA 246, at para. 17.

[20] Indeed, the sentencing judge, referring to Dr. Pearce’s evidence, noted that the appellant’s risk profile changed dramatically in the years following 2013 when he engaged in a steadily escalating stream of violent offences and became increasingly non-compliant with court orders. As in R. v. A.R., 2022 ONCA 553, at para. 29, the evidence of a gap in offending “does not undermine the conclusion, which was available on the totality of the evidence … that the appellant’s violent behaviour is intractable.”

[21] The sentencing judge did not ignore the gap in the appellant’s criminal record. In the circumstances of this case, and in the context of all of the other evidence with respect to the appellant’s risk of violent reoffence, including the escalation in his violent offending in the years leading up to the predicate offences and his poor response to treatment and supervision in the past, the gap had little bearing on the intractability of the appellant’s violent behaviour and his treatability. Accordingly, I would not give effect to this ground of appeal.

(3) The sentencing judge did not fail to consider the appellant’s circumstances in determining he was untreatable.

[22] The appellant’s second argument is that the sentencing judge erred in treating his failure to engage in treatment to date as determinative of whether he was untreatable. The appellant argues that this is an error because it is inconsistent with the evidence at the hearing and with the principles of sentencing.

[23] The appellant emphasizes the various impediments to effective treatment for his substance dependencies and mental health issues: his involvement with the Children’s Aid Society from age two, the physical, emotional and sexual abuse he suffered in group and foster homes, his having left school at age 12, his family history of mental illness and drug use, and the fact that he was mostly living on the street by age 16. He argues that, instead of acknowledging the appellant’s actual circumstances and the efforts he made to get help, the sentencing judge repeatedly referred to his choice of lifestyle and attitude toward treatment, saying that “he does what he pleases”, that the consequences resulting from his reincarceration are of “his own doing”, and that he is “just struggling to live his life the way that he has always lived it”. The appellant argues that the sentencing judge failed to evaluate his treatment attempts in the context of his actual circumstances and failed to properly consider his acknowledgment to Dr. Pearce of his problems and his potential for rehabilitation.

[24] The appellant also asserts that the sentencing judge failed to consider that the appellant’s risk could be controlled in the community through intensive supervision. He points to the conditions Dr. Pearce recommended for a LTSO and the evidence of a representative from the Correctional Services of Canada (“CSC”) that the recommended treatment plan could be implemented, supervised and enforced in the community.

[25] Contrary to the appellant’s submissions, the sentencing judge did not unfairly comment on his attitude or fail to consider evidence about the reasons for his failure in treatment to date, or the availability of more intensive treatment in the federal penitentiary system. The key issue was whether there was a “reasonable expectation” of control of the offender’s dangerousness through treatment and/or supervision. The “reasonable expectation” standard suggests a “likelihood”, a “belief that something would happen”, or a “confident belief, for good and sufficient reasons”, and is more stringent than a “reasonable possibility”: R. v. Straub, 2022 ONCA 47, 160 O.R. (3d) 721, at para. 62. The evidence of treatability must provide more than mere speculative hope about successful treatment and indicate that the specific offender can be treated within an ascertainable time: Straub, at para. 63.

[26] The sentencing judge was required to determine whether there was a reasonable expectation of control of the appellant’s dangerous recidivism. In this context, the judge’s comments about the appellant’s lack of motivation to change and his attitude toward treatment were not unduly critical or gratuitous, but relevant to his assessment of the proposed plan for treatment and supervision. As this court observed in Straub, at para. 64, the factors to consider in assessing the manageability of an offender’s risk include: “evidence that the offender avoided treatment, failed to respond to or terminated treatment, breached court orders, lacked motivation, continued to be involved in high-risk conduct, had a serious personality disorder, and was a high risk to engage in violent recidivism.” All of these factors were present in this case.

[27] The sentencing judge properly considered the appellant’s previous response to treatment and supervision and assessed his current motivation before rejecting the appellant’s assertion that he was now willing to engage in treatment and counselling. His attitude toward treatment, including his lack of motivation to change, was well-supported by the record. The judge considered this factor in assessing the viability of the proposed plan in managing his risk. As the sentencing judge reasonably observed, the success of any program that was offered to the appellant, including the more intensive programming available in prison and the counselling, treatments and supervision thereafter, would depend to a large extent on his motivation to participate.

[28] The sentencing judge considered the evidence of the experienced probation officer who had supervised the appellant for approximately two years in 2014 to 2016 regarding the various challenges to his treatment, including his low motivation to abstain from drugs. He referred to Dr. Pearce’s evidence that, while the appellant said he was willing to consider more robust programming, he was ambivalent about anti-alcohol medication and methadone maintenance treatment, he admitted to ongoing institutional drug use, and he spoke about wanting to return to alcohol and marijuana use in the community. While Dr. Pearce observed that there was “some reason” to think the appellant would benefit from intensive treatment programs in the penitentiary, succeed under community supervision and then be non-violent after the expiry of a LTSO, he could not say there was any reasonable expectation of control of the appellant’s risk in the community.

[29] The sentencing judge reasonably concluded that the expectation that the proposed treatment plan covering the appellant’s period of incarceration and a ten-year LTSO would control his risk of dangerous recidivism was merely speculative.

[30] Finally, the sentencing judge properly assessed the appellant’s treatability in the context of all of his circumstances and in accordance with the principles of sentencing. Counsel for the appellant underlined several background factors to explain why past treatment attempts were unsuccessful. This submission echoes the argument made by the defence at first instance, with respect to factors supporting the appellant’s reduced moral blameworthiness. While events during the appellant’s childhood were indeed shocking and unfortunate, and resulted in large part from influences over which he had no control, the sentencing judge specifically addressed them. He recognized that the appellant had a very difficult and abusive childhood, that he was introduced to certain hard drugs by his mother and her friends, and that his offences were largely fueled by his addiction to crystal meth. The sentencing judge considered these circumstances with respect to the appellant’s moral blameworthiness, and reasonably concluded that the issue was the degree of the appellant’s dangerousness to the community. While all of the sentencing principles in ss. 718 to 718.2 of the Code, including moral culpability, are relevant to the dangerous offender process, Parliament has instructed courts to emphasize the protection of the public: R. v. Tynes, 2022 ONCA 866, 165 O.R. (3d) 321, at para. 104, leave to appeal refused, [2023] S.C.C.A. No. 471; Boutilier, at paras. 56, 63; see also R. v. Pelly, 2021 SKCA 50, 403 C.C.C. (3d) 127, at para. 28.

[31] In conclusion, the sentencing judge did not ignore evidence about the appellant’s intractability, nor did he fail to consider the appellant’s circumstances grounding his history of failing to engage in treatment. Rather, he thoroughly addressed all of the evidence before him in concluding that the appellant’s violent conduct was intractable and that there was no realistic prospect that he could be treated or supervised to control his risk to the public. I see no error in the designation of the appellant as a dangerous offender and the indeterminate sentence he received.

E. Disposition

[32] For these reasons I would dismiss the appeal.

Released: December 12, 2024 “K.M.v.R.”

“K. van Rensburg J.A.”

“I agree. B.W. Miller J.A.”

“I agree. S. Gomery J.A.”