Court of Appeal for Ontario

Date: 2025-05-15
Docket: COA-24-CR-0221
Before: Sarah E. Pepall, Steve Coroza, Julie Dawe

Between:
His Majesty the King (Respondent)
and
Jason Windebank (Appellant)

Appearances:
Paul Calarco and Michael Bartlett, for the appellant
Erica Whitford, for the respondent

Heard: April 29, 2025

On appeal from the sentence imposed on September 11, 2023 by Justice Jane E. Kelly of the Superior Court of Justice.

Reasons for Decision

Overview

[1] The appellant was convicted of eight offences arising from the abuse of his domestic partner, including assault causing bodily harm, choking, and forcible confinement. Following his convictions, the Crown brought a Dangerous Offender application pursuant to ss. 753(1)(a)(i) and (ii) of the Criminal Code, RSC 1985, c C-46. Prior to the sentencing hearing, a s. 752.1 assessment of the appellant was ordered. Dr. Jonathan Gray, a forensic psychiatrist, assessed the appellant and diagnosed him as having antisocial personality disorder along with stimulant use disorder.

[2] The sentencing judge designated the appellant as a Dangerous Offender and sentenced him to an indeterminate sentence. The appellant appeals from the designation and his sentence. For the reasons that follow, the appeal is dismissed.

Factual Background

[3] Two separate incidents formed the basis of the appellant’s convictions. On April 13, 2020, the appellant punched the complainant, R.T., in the face, head, chest and ribs. He dragged her by her hair to a different room, put her in a chokehold, and continued hitting her in the head. The appellant said he would kill her. When R.T. hid in the bathroom to get away from the appellant, he broke down the door and continued his assault.

[4] The second incident occurred on August 18, 2021, while the appellant was on bail for the first set of charges. R.T. testified that she opened the bathroom door while the appellant was in the shower and he “lost it”. He was under the influence of crystal methamphetamine at the time. The appellant pushed R.T. to the floor and punched her head while not letting her leave the bathroom. After the appellant had calmed down, R.T. went to the kitchen to make him something to eat. He was not satisfied with the meal, threw it away and continued to hit her. He also picked up R.T.’s dog and threw him against the wall. During the assault, he said he would kill R.T.

[5] Including the predicate offences, the appellant has been convicted of 134 offences, one of which was for manslaughter. Several of these convictions involved violence against intimate partners. As an adult, the appellant has spent most of his life imprisoned and has never lived in the community for a full year without committing another offence.

Decision Below

[6] The sentencing judge followed the two-stage process when considering the Dangerous Offender application: the designation stage and the penalty stage. At the first stage she considered whether the appellant should be designated a Dangerous Offender. The sentencing judge found that the Crown had established all of the constituent elements of s. 753(1)(a) and that the appellant must be declared a Dangerous Offender.

[7] In her reasons, the sentencing judge found that the Crown had established that the predicate offences were serious personal injury offences and that the appellant is a threat to the life, safety and physical and psychological well-being of others. Under s. 753(1)(a)(i), the sentencing judge was satisfied that the evidence established a pattern of repetitive behaviour that showed a failure to restrain his behaviour and that this would necessarily lead to a likelihood of re-offence in the future. Under s. 753(1)(a)(ii), the appellant also showed a pattern of persistent aggressive behaviour and a substantial indifference respecting the reasonably foreseeable consequences to other persons. Further, the sentencing judge found that the Crown had established a high likelihood of recidivism, as evidenced by Dr. Gray’s report. The appellant’s violent conduct was intractable because the risk he poses to others is not likely to change and he is unlikely to surmount his violent behaviour.

[8] Turning to the second stage, the sentencing judge went on to determine the appropriate sentence. At the outset of her analysis she noted:

In determining the fit sentence, having declared Mr. Windebank a Dangerous Offender, I must consider whether a determinate sentence followed by an LTSO is appropriate. Crown counsel does not have to prove beyond a reasonable doubt that there is no reasonable possibility of eventual control of the risk posed by the offender to the community. If the sentencing judge is uncertain whether there is a reasonable expectation that a lesser measure will adequately protect the public, then the sentencing judge should exercise discretion and impose an indeterminate sentence.

[9] At the end of her reasons, the sentencing judge concluded that no sentence other than an indeterminate sentence would adequately protect the public. She stated:

I agree with the opinion of Dr. Gray. I am not satisfied that there is a reasonable expectation that a lesser sentence (i.e., a determinate sentence followed by an LTSO) will adequately protect the public against the commission of a serious personal injury offence. I accept that there is, theoretically, always reason to be hopeful for the future. However, based on the evidence before me, I am not satisfied that such hope is anything more than speculative. A mere hope of control is simply not enough. An indeterminate sentence in prison is warranted because it will serve the purpose of protecting the public.

Analysis

[10] The appellant advances three grounds of appeal and seeks a new hearing.

[11] First, he submits the sentencing judge erred by misapprehending the evidence of Dr. Gray when she referred in her reasons to the doctor having “recommended” that the appellant receive an indeterminate sentence. The appellant contends that Dr. Gray did not make any such recommendation.

[12] We agree with the appellant that the sentencing judge erred in stating that Dr. Gray had recommended the appellant receive an indeterminate sentence. However, the error is immaterial, since the substance of his evidence supported the sentencing judge’s conclusions at both the designation and penalty stages.

[13] Dr. Gray reported that the appellant’s insight into substance abuse and intimate partner violence, including the predicate offences, was poor. Based on actuarial risk assessments, Dr. Gray opined that the appellant has a “very high” risk of violent recidivism. Further, Dr. Gray believed the appellant’s risk of violent reoffending would be “extremely difficult to manage in the community”. It was clear from Dr. Gray’s report that his assessment of the appellant satisfied the criteria for a Dangerous Offender designation under s. 753(1)(a). She also carefully assessed Dr. Gray’s viva voce testimony and applied the correct legal test to determine whether the elements in s. 753(1)(a) were met. In arriving at her conclusions regarding both designation and sentence, the sentencing judge considered other evidence beyond Dr. Gray’s report, including the appellant’s family background, educational history, substance abuse history, and institutional history. The sentencing judge’s misstatement that Dr. Gray had recommended an indeterminate sentence does not rise to the level of reversible error and we see no basis to intervene.

[14] Second, the appellant submits the sentencing judge erred in law by failing to apply the principles set out in R. v. Gladue, [1999] 1 S.C.R. 688, at both the designation and penalty stage. He argues that his Indigenous background was relevant to both his risk assessment and treatment prospects.

[15] The sentencing judge clearly reviewed the 2012 Gladue report that was previously filed at the sentencing hearing for the appellant’s manslaughter conviction. The Gladue report was tendered by the Crown and marked as an exhibit at the Dangerous Offender hearing. The sentencing judge can hardly be faulted for not referring to the Gladue principles in detail when neither counsel made extensive submissions on the relevance of the Gladue factors to the issues to be addressed on the Dangerous Offender application. Furthermore, efforts were made to update the appellant’s 2012 Gladue report, but the organizations contacted to provide a current report could not assist, because they could not confirm the appellant’s ancestry. This explains why the sentencing judge made no specific mention of the principles.

[16] In any event, the availability of Indigenous based programs and the appellant’s prospect for treatment by participating in these programs was raised at the hearing. In her reasons, the sentencing judge recognized that there were other relevant considerations at the penalty stage including the principles “developed for Indigenous offenders”. The record did not suggest that the appellant's Indigenous background could have had a significant impact on his future prospects for treatment. In her reasons, the sentencing judge referred to both the 2012 Gladue report and the culturally specific programming that the appellant had enrolled in but like other programming, his violent offending had not been curtailed by past programming.

[17] It is clear from the psychiatric evidence in the record that the appellant’s risk of violent recidivism was the product of his serious personality disorder, his substance use disorder, his poor treatment and supervision history, and the dim prognosis for meaningful change. There was simply no evidentiary foundation for the appellant's suggestion that the Indigenous programming would address the risk he poses to the community. Therefore, the failure of the sentencing judge to specifically refer to the Gladue principles, in the circumstances of this case, is not a reversible error.

[18] Finally, the appellant submits the sentencing judge’s reasons reflect that she improperly exercised her discretion at the penalty stage. As noted above, in her reasons, the sentencing judge said that “[i]f the sentencing judge is uncertain whether there is a reasonable expectation that a lesser measure will adequately protect the public, then the sentencing judge should exercise discretion and impose an indeterminate sentence” (emphasis in original). The appellant takes issue with the sentencing judge’s reasons and argues that the sentencing judge erred because she believed that there was a presumption in favour of an indeterminate sentence. We disagree.

[19] The sentencing judge’s reasons must be read as a whole. Preceding the impugned passage, the sentencing judge plainly recognized that there was no presumption of an indeterminate sentence at the penalty stage when she stated:

Section 753(4) of the Criminal Code gives the court discretion as to the sentence to impose on Mr. Windebank, whom I have designated a Dangerous Offender. Pursuant to s. 753(4.1), a court “shall” impose an indeterminate sentence unless it is satisfied that there is a reasonable expectation that a lesser sentence under subparagraph (4) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. The penalty stage focusses on imposing the appropriate sentence to manage the established threat. [Emphasis added; footnotes omitted.]

[20] Following these observations, the sentencing judge proceeded to consider whether a determinate sentence was appropriate. After noting that neither party was proposing a determinate sentence, she went on to consider the alternative sentence proposed by the defence of a determinate sentence followed by a Long-Term Supervision Order for ten years. She found that this sentence would not adequately protect the public. Consequently, the sentencing judge concluded that she was not satisfied that there was a reasonable expectation that a lesser sentence than an indeterminate sentence would adequately protect the public against the commission of a serious personal injury offence. The sentencing judge’s conclusion is supported by the evidence and we reject this ground of appeal.

Disposition

[21] For these reasons, the appeal is dismissed.

“Sarah E. Pepall J.A.”
“Steve Coroza J.A.”
“Julie Dawe J.A.”