Court Information

Court: Ontario Court of Justice

Court File No.: Newmarket 4911 998 08-09118

Date: September 19, 2014

Before: Justice Richard Blouin

Parties

Her Majesty the Queen

— AND —

Jeffrey Marsh

Counsel

For the Crown:

• Mr. Peter Westgate
• Mr. Tony Vanden Ende

For the Accused:

• Mr. Corbin Cawkell

Hearing Dates

• May 26, 2014
• May 27, 2014
• June 5, 2014
• June 6, 2014

Oral Ruling on Dangerous Offender Application: June 23, 2014

Oral Judgment on Sentence: August 20, 2014

Written Reasons Released: September 19, 2014

BLOUIN J.:

Guilty Plea

[1] On April 16, 2009, Jeffrey Marsh entered guilty pleas on four counts related to a bank robbery in Richmond Hill, committed by him on October 8, 2008:

1. Robbery while armed with an imitation firearm, namely a pellet gun;
2. Disguise with Intent, regarding a mask;
3. Auto theft;
4. Auto possession.

[2] Mr. Marsh had been released ten days earlier on September 29, 2008, from the Kingston Penitentiary. He had been under constant surveillance by the OPP and Toronto Police Service during the short time he was in the community. Accordingly, the police observed Mr. Marsh entering the Bank of Montreal, masked, brandishing the pellet gun.

[3] On the guilty plea, the Crown called a teller, Albert Bui. He testified that he observed the defendant enter the bank wearing a mask and yelling, "This is a robbery." The defendant pointed the gun at Mr. Bui, who handed over between $1300 and $1600 in cash. Mr. Bui thought he was going to die.

[4] Since he was under surveillance, the police observed Mr. Marsh to run from the bank, enter a car he had stolen, and drive to his van nearby where he was arrested in possession of the imitation handgun.

[5] When the case appeared before me on April 16, the Crown made its intention clear that they would be pursuing a Dangerous Offender designation pursuant to s. 753 of the Criminal Code. The matter was remanded to obtain a psychiatric assessment, pursuant to s. 752.1, and approval of the Attorney General. Although I have no transcripts that record the subsequent remands over the next five years, it became a frustrating exercise in delay to schedule the Dangerous Offender application proceeding. Much of the delay was beyond the defendant's control in that another lawyer had to take over his case, and a report from a defence psychiatrist was delayed. Finally, the application was heard over four days in late May, and early June, 2014.

Dangerous Offender Application

[6] Section 753.(1) is, as follows:

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 (a) 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

(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour,

(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or

(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; or

(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.

[7] I heard from a forensic psychiatrist on staff at the Centre for Addiction and Mental Health, Dr. Treena Wilkie, and the area director of the Toronto East Parole office, Ms. Sherri Rousell. The defendant spoke to the Court before a finding was made. Mr. Marsh is now 50 years old. I accepted the evidence in its totality from both Dr. Wilkie and Ms. Rousell. Both were knowledgeable, comprehensive, balanced and compelling.

[8] On June 23, 2014, I concluded that Mr. Marsh met the definition in s. 753.(1)(a) and, as a result, I found him to be a Dangerous Offender. This was not a close call.

Serious Personal Injury Offence

[9] The robbery count was conceded by the defendant to be a serious personal injury offence as defined in s. 752. "Serious personal injury offence" means:

(a) an indictable offence, other than high treason, treason, first degree murder second degree murder, involving

(i) the use or attempted use of violence against another person, or

(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person,

and for which the offender may be sentenced to imprisonment for ten years or more, or …

[10] Robbery with an imitation handgun involves the use of violence. Alternatively, it is conduct that inflicts or is likely to inflict severe psychological damage upon another person. In this case, that psychological damage was inflicted on the bank teller. I find it to be severe.

Repetitive Behaviour

[11] In my view, the evidence establishes a repetitive pattern which illustrates an obvious failure to restrain his bank robbing activities. The repetitive pattern is starkly evident from the many related entries on his lengthy CPIC criminal record:

Armed Robbery October 17, 1988 — 5.5 years

• the defendant robbed a bank with a sawed-off shotgun;
• he did so while in possession of a stolen car.

Armed Robbery May 23, 1991 — 7 years

• the defendant robbed a Canada Trust on September 22, 1990, masked and armed with a pellet gun;
• the defendant was on day parole from the previous robbery sentence;
• the defendant fled in an automobile and was involved in a multiple vehicle collision;
• the defendant jumped into a citizen's vehicle and told her to drive.

Attempted Armed Robbery January 23, 2001 — 4 years

• on June 21, 2000, the defendant was under surveillance by Edmonton Police;
• the defendant was on parole from the previous robbery;
• the defendant was arrested near the Canada Trust Bank with an unloaded, sawed-off shotgun in a van lent to him by his mother;
• the defendant stole a car and circled the bank three times.

Armed Robbery June 8, 2004 — 5.5 years

• the defendant robbed a McDonalds while masked and armed with a butcher's knife;
• the defendant fled in a stolen car and took police on a 4-kilometre-long, high speed chase, wherein a 4-vehicle accident occurred after he disobeyed a red light.

[12] One of the routes available for a finding of dangerous offender is through repetitive behaviour, which illustrates a failure to restrain his behaviour. If there is a likelihood of causing death or injury to other persons, or a likelihood of inflicting severe psychological damage on other persons through a failure to restrain that behaviour in the future, one could conclude that the defendant constitutes a threat to life, safety or physical or mental well-being of other persons.

[13] Since Mr. Marsh has carried a weapon into banks (4) and a restaurant in the past to commit robbery, yet he has physically hurt no-one inside, it would be difficult to conclude a likelihood of him causing death or physical injury to other persons in the future. However, equally so, there is very strong likelihood that his inability to restrain his behaviour will inflict severe psychological damage to others in the future.

[14] As a result, the evidence establishes that the offender constitutes a threat to life, safety or physical or mental well-being of other persons. Because this robbery is a serious personal injury offence and part of the pattern, it is clear that the defendant meets the definition of dangerous offender in s. 753.(1), and I so find that he is a dangerous offender.

Aggressive Behaviour

[15] Although not necessary for designation, 753.(1)(a)(ii) provides a similar route to a finding of dangerousness if there is a pattern of persistent aggressive behaviour showing a substantial degree of indifference for the consequences of his behaviour to other persons. Again, while he has never physically hurt anyone during the armed robberies, it is difficult to define his persistent behaviour as anything but aggressive. If 753.(1)(a)(i) was not available, I would make a dangerous offender finding on the basis of 753.(1)(a)(ii).

Police Chase

[16] In this case, the defendant was arrested before he could drive away in his motor vehicle, and therefore does not face any driving related charges, which does not allow me to include driving behaviours in the calculus (there is a requirement that the defendant be convicted of a present offence which is part of the pattern). That said, on two prior occasions, after bank robberies, the defendant has initiated a police chase which resulted in multi-car collisions. In my view, this presents the greatest risk for physical harm or death from his repetitive, aggressive criminal behaviour. Again, since no driving offences are "present offences," I cannot consider that risk in determining this application.

Sentencing

Section 753.(4) provides:

753. (4) If the court finds an offender to be a dangerous offender, it shall

(a) impose a sentence of detention in a penitentiary for an indeterminate period;

(b) impose a sentence for the offence for which the offender has been convicted — which must be a minimum punishment of imprisonment for a term of two years — and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or

(c) impose a sentence for the offence for which the offender has been convicted.

Section 753.(4.1) states:

(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

Psychiatric Assessment

[17] Dr. Wilkie responded to an assessment order pursuant to s. 752.1 of the Criminal Code by compiling a 108-page report dated August 17, 2009. She conducted three psychiatric interviews with the defendant, reviewed a psychological assessment report prepared by two psychologists, and consulted numerous correctional and criminal records. Since the application took an inordinate length of time to reach a hearing date, Dr. Wilkie met again with the defendant on April 25, 2014, and filed an addendum to the 2009 report on May 19, 2014.

[18] Dr. Wilkie concluded that Mr. Marsh does not appear to suffer from a major mental illness such as schizophrenia or bipolar disorder, but clearly appears to meet the criteria for a diagnosis of anti-social personality disorder with borderline personality traits. He also meets the criteria for substance abuse disorders. Excerpts taken from pages 91 to 94 of the report:

The essential feature of antisocial personality disorder is a pervasive pattern of disregard for, and violation of, the rights of others, occurring since the age of fifteen, as indicated by three or more of:

• Failure to conform to social norms with respect to lawful behaviours [met]
• Deceitfulness as indicated by repeated lying, use of aliases, or conning others for personal profit or pleasure [met]
• Impulsivity or a failure to plan ahead [met]
• Irritability and aggressiveness [met]
• Reckless disregard for the safety of self or others [met]
• Consistent irresponsibility as indicated by a repeated failure to sustain consistent work behaviour or honour financial obligations [met]
• Lack of remorse, as indicted by being indifference to, or rationalizing, having hurt, mistreated, or stolen for another [met]

Individuals with antisocial personality disorder are largely considered to be untreatable.

Mr. Marsh also appears to manifest borderline personality traits. According to the DSM-IV-TR, borderline personality disorder is described as a pervasive pattern of instability of interpersonal relationships, self-image, and affects, and marked impulsivity beginning by early adulthood and present in a variety of contexts, as indicated by five (or more) of the following:

• Frantic efforts to avoid real or imagined abandonment
• A pattern of unstable and intense interpersonal relationships characterized by alternating between extremes of idealization and devaluation
• Identity disturbance
• Impulsivity in at least two areas that are self-damaging (e.g. spending, sex, substance abuse, reckless driving, binge eating)
• Recurrent suicidal behaviour, gestures, or threats, or self-mutilating behaviour
• Affective instability due to a marked reactivity of mood
• Chronic feelings of emptiness
• Inappropriate, intense anger or difficulty controlling anger
• Transient, stress-related paranoid ideation or severe dissociative symptoms.

Mr. Marsh appears to meet some of the criteria noted above.

Substance abuse disorders are generally defined as the use of substances in a fashion that has maladaptive social, occupational or physiological consequences. According to the DSM-IV-TR, substance abuse is defined by a pattern of substance use leading to clinically significant impairment or distress, as manifested by one or more of the following, occurring within a 12-month period:

• Recurrent use of a substance resulting in a failure to fulfil major role obligations at work, school or home
• Recurrent substance use in situations in which it is physically hazardous
• Recurrent substance-related legal problems
• Continued substance use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of the substance

Risk Assessment

[19] Both Dr. Wilkie and Dr. Abramowitz (one of the psychologists) independently scored the defendant at 32 (out of 40) on the psychopathy checklist PCL-R.

[20] That score places Mr. Marsh higher than 90% of individuals in the prison population. Anyone scoring higher than 30 is considered a psychopath. Anyone scoring higher than 25 have poor treatment prospects.

[21] Mr. Marsh was also scored on the Violence Risk Appraisal Guide (VRAG). Dr. Wilkie scored him +18. Dr. Abramowitz at +15. This means the expected probability of violent recidivism is expected to range between 58% and 82% within ten years of opportunity.

Correctional Services Canada

[22] Ms. Rousell testified regarding the comprehensive recommendations made by Dr. Wilkie (see Appendix 1), and their relationship to available resources within Correctional Services Canada. Some of those recommendations, while valid, were not able to be fulfilled. Ms. Rousell's office would be responsible for developing the correctional plan that drives the supervision and management of the offender while in custody. If the offender is paroled, on statutory release, and/or a Long Term Supervision Order, her office plans for the offender's release into the community, and recommends to the Parole Board the structure and conditions that should be in place to manage the offender's risk. The correctional plan is initiated when a federal sentence is given, during the first three to four months of incarceration at the Joyceville Assessment Unit.

[23] The case law is clear that even in the presence of a comprehensive community management plan, the Court must consider "real world resourcing limitations," which cannot be ignored or minimized when to do so would endanger public safety: R. v. DVB 2010 ONCA 291, 2010 OJ No 1577 at para 59, Ontario Court of Appeal.

[24] Some of the limitations testified to by Ms. Rousell:

• frequency of contact between parole office and an offender on a LTSO has been reduced from a minimum of eight times per month to four (not daily, as recommended by Dr. Wilkie);
• daily checks on the defendant's whereabouts when away from the community correctional centre cannot be accommodated;
• any programming regarding antisocial attitudes or vocational programs are subject to potential waiting lists, although less likely if the defendant has completed a "core program" in the institution; in the case of vocational programs there are no specific programs;
• dispensing and monitoring medication is largely left to the individual, who essentially has the medication stored at the centre;
• residential drug treatment facilities, typically, will not accept offenders coming out of prison onto a LTSO. Intense monitoring and compliance with treatment is not possible.

Submissions

[25] Mr. Cawkell submitted that his client should not receive an indeterminate sentence under s. 753.(4)(a), and given the expert position of strict supervision, he should not receive a straight sentence under 753.(4)(c). As a result, he submits, I should take into account the pre-trial custody (close to six years) and impose either (1) time served followed by a ten-year Long Term Supervision Order (LTSO), or (2) two years incarceration followed by a five-year LTSO.

[26] The defence also submits that, given that the offence date precedes the Truth in Sentencing Act, the pre-trial detention credit should be calculated on a two-for-one basis when both quantitative and qualitative factors are considered.

[27] The Crown submitted that a determinate sentence followed by a ten-year LTSO was insufficient to adequately protect the public. Only an indeterminate sentence would suffice. However, he submitted, should this Court decide to impose some sentence other than an indeterminate sentence, a range of 12 to 15 years would be commensurate with the gravity of his crimes coupled with the moral blame-worthiness associated with his extensive and related criminal record.

Findings

[28] Dr. Wilkie summaries the report by opining that "there is reason for pessimism, from a psychiatric perspective, regarding this individual's future manageability within the community, even if strict conditions were in place, and Mr. Marsh were to agree to follow through with conditions and treatment recommendations." She then outlines nine recommendations that would provide some structure if the defendant was eventually placed in the community.

[29] In cross-examination, Dr. Wilkie agreed with the suggestion that impulsivity and aggression (two elements of his diagnosis) would decline with advancing years. In addition, if the defendant is contained in a supervised environment, again impulsivity and aggression would be attenuated.

[30] During the first nine months of 2012, Mr. Marsh was admitted to the secure treatment unit at St. Lawrence Valley Treatment Centre (SLVTC) because of the "escalation of problematic behaviours displayed by the subject" after 38 months of administrative segregation in Central East Correctional Centre (CECC). This was done on an emergency basis given concerns around "psychiatric decompensation" and suicide risk. He had been banging his head against a wall for weeks. He swallowed a plastic spoon. By the end of the stay (discharge summary dated September 13, 2012) Mr. Marsh was diagnosed with delirium secondary to medication toxicity by Dr. Cameron. The medication he had been receiving was altered and by June 3, 2012, Dr. Cameron assessed the defendant to be stable on the new medication.

[31] Dr. Wilkie agreed that:

• most of the difficulties displayed by the defendant in custody occurred before June 3, 2012;
• the defendant participated in four different groups after stabilization and was described as having a positive influence on the group. He was receptive to information, feedback, direction and correction. He progressed to an environment where he had more inter-personal control with others that lead to him being placed in the general population;
• he did his best work at SLVTC;
• that his current medication had the defendant feeling more positive, and that he reported having better control over his behaviours, and would seek mental health assistance; all of this resulting in a positive development;
• after his release from SLVTC on September 17, 2012, there is no indication of any behavioural problems at CECC.

[32] The case law dealing with the principles relevant to the appropriate sentence for serious personal injury offences committed by dangerous offenders occurring after the 2008 amendments, such as this case, suggest that neither party is required to satisfy a burden of proof (see R. v. Mumford, 2010 ONSC 5624). However, given that s. 753.(4.1) mandates that the Court must impose an indeterminate sentence unless satisfied, by the evidence adduced during the hearing, that there is a reasonable expectation that a lesser measure under 753.(4)(b) or (c) will adequately protect the public, there exists a presumption that must be rebutted.

[33] I must conduct a thorough inquiry to determine if, in the evidence, there exists a reasonable expectation that a sentence other than an indeterminate one can adequately protect the public. Although, as Dr. Wilkie testified, there are significant reasons for pessimism, I come to the conclusion that I can impose a determinate sentence in the penitentiary followed by a LTSO. In my view, the almost six years of jail served to this point, along with a period of penitentiary time wherein core programs will be available, followed by an extended period of supervision, provide the framework for the reasonable expectation.

[34] The evidence which leads me to a reasonable expectation and rebuts the indeterminate sentence presumption is primarily founded on the positive developments which occurred at SLVTC after June 3, 2012, when the defendant's medication regime was stabilized. As indicated above in paragraph 31, the defendant was able to engage in programming, connect with people, and comply with behavioural norms. And that was not just for a few months, but over two years now, where his prospects are moving in the right direction. Although I feel it is a minor factor, the experts agree that aggression and criminality attenuate with age, and the defendant is now 50.

[35] The Crown took the position that if an indeterminate sentence was not imposed, a 12- to 15-year period of incarceration is a just sentence. I agree. Given the four prior armed robberies, and the commission of this armed robbery ten days after release, a sentence that emphasizes denunciation and deterrence is paramount. Given this was an early guilty plea and no physical violence was exacted, I am of the view that 13 years is the right sentence.

[36] In written submissions, the Crown took the position that Mr. Marsh should be credited for pre-trial detention on a 2:1 basis (see paragraph 104, Exhibit 1(a) on Sentence). Mr. Westgate amended that position on the sentencing hearing to indicate that something less than that should be credited. Even prior to that alteration in position, I was not prepared to grant Mr. Marsh credit at 2:1. One of the principles underpinning enhanced credit is the unavailability of parole when detained before sentence. Mr. Marsh has virtually no chance of receiving either day or full parole. As a result, I take into account only the unavailability of statutory release at two-thirds (⅔) of the sentence as a quantitative factor. Other qualitative factors, such as the absence of programmes, and segregation, should be factored into the calculus. Far from a science, it seems to me that the most appropriate period of credit I can arrive at is 11 years for the close to six years of pre-trial detention.

[37] Accordingly, the sentence from August 20, 2014, forward will be two years in the penitentiary. I concluded a lesser sentence of time served followed by an LTSO as submitted by defence, would not allow the defendant to be engaged in core programming in a federal institution. Without that component, I was not of the view that there existed a reasonable expectation the public could be protected.

[38] I recommended Mr. Marsh serve his sentence in medium security and not maximum security for the simple reason that his access to necessary programming would be reduced if he were in maximum security. I realize, however, the decision regarding classification rests with Correctional Service Canada.

[39] Again, in my view, the core programs available in the penitentiary could be continued in the community but would only have a reasonable possibility of success if the defendant was subject to the enhanced supervision available to a defendant subject to a LTSO. As a result, given the multiple problems the defendant faces which give rise to the pessimism expressed by Dr. Wilkie, only a maximum LTSO of ten years would provide the necessary supervision and controls.

[40] A DNA database sample, and a lifetime prohibition to possessing the items listed in s. 109 of the Criminal Code were both ordered.

Released: September 19, 2014

Signed: "Justice Blouin"

Appendix 1: Summary of Dr. Wilkie's Recommendations

In summary, I believe there is reason for pessimism, from a psychiatric perspective, regarding this individual's future manageability within the community, even if strict conditions were put in place and Mr. Marsh were to agree to follow through with conditions and treatment recommendations. However, the question as to whether or not Mr. Marsh would meet criteria for a finding that he is a Long-Term Offender ultimately lies with the Court. I have outlined the above factors to assist the Court in its determination in this regard.

Should the Court determine that Mr. Marsh would be suitable for designation as a Long-Term Offender, clinical/dynamic factors and criminogenic variables highlight areas where intervention should be attempted in order to try to manage the risk posed by Mr. Marsh in the community. In my opinion, if Mr. Marsh is placed in the community, the following structures and conditions should be put in place:

1. Programming and Skill Development

Mr. Marsh has completed a variety of programs during his incarceration; it should be noted that his involvement in some of these programs may have inadvertently provided him with information and skills that may be used to manipulate treating professionals. He may, however, be exposed to programs during a period of incarceration, including but not limited to, programs to deal with antisocial attitudes. He should also be assisted in accessing vocational programs to assist him with any eventual transition to the community.

2. Mental Health Treatment

Mr. Marsh may benefit from psychological treatment with a mental Health professional, specifically tailored to address affective instability (and other borderline personality traits), with regard to creating "structure" in his internal, psychological environment. Mr. Marsh may benefit from cognitive behavioural (CBT) or dialectical behavioural therapy (DBT), the mode of therapy shown to be best able to treat the symptoms of borderline personality disorder. DBT, specifically, addresses symptoms of affect dysregulation, anger, behavioural dyscontrol, fear of abandonment and difficulties with identity.

3. Ongoing Psychiatric Monitoring

Mr. Marsh should be followed by a mental health professional; the ongoing utility of medication treatment to address affective instability, anger dyscontrol, and impulsivity should be assessed on an ongoing basis. Medication with abuse potential (i.e. benzodiazepines) should likely not be prescribed to this individual.

4. Substance Abuse Treatment

Mr. Marsh should be required to attend treatment programs for substance abuse, both while incarcerated and once out in the community. I would recommend treatment within a residential facility during the initial phase of any eventual release, with very intense monitoring of his compliance (i.e. random drug screens on at least a twice weekly basis and whenever substance abuse is suspected). He should also participate in relapse prevention programming in this regard.

5. Abstinence Requirements

Mr. Marsh should be required to abstain from alcohol and street drug use and should be immediately returned to detention if there is any evidence of use in this regard.

6. Intensive Community Supervision

He should be subject to intense supervision upon any eventual release to the community, including residential placement in a correctional facility for an extended period of time, with privileges for any unsupervised time away from the facility being earned through demonstrated compliance with the programs and supervision. Any release should only take place on a graduated and slow basis, allowing for rapid intervention (breach) should Mr. Marsh fail to comply with all conditions.

7. Verification of Whereabouts

His whereabouts when outside the facility should be subject to verification initially on at least a daily basis and probation/parole officers should make regular, unannounced visits if Mr. Marsh is living outside of a correctional facility.

8. Intimate Relationship Notification

If Mr. Marsh enters into a further intimate relationship, that partner should be contacted by probation and parole and should be fully informed of Mr. Marsh's history and should be advised to contact police immediately if they have any reason to believe Mr. Marsh is about to act in an aggressive fashion, have access to a weapon or resume use of substances.

9. Peer Association Restrictions

Mr. Marsh should be prohibited from having contact with any criminally-oriented or substance-abusing peers outside of correctional facilities.

The recommendations made above represent a somewhat more intense level of suggested supervision and treatment than Mr. Marsh has received in the past, reflecting my view that he represents a special group of high risk/high needs offenders. My hope would be that such an intensive level of supervision and treatment, while not eliminating risk posed by Mr. Marsh, might allow for intervention (i.e. breach) prior to his committing a further offense.