Court File and Parties

Court File No.: 11-2835

Ontario Court of Justice

Between:

Her Majesty the Queen

— And —

Eric Patrick Blair

Before: Justice Gregory A. Campbell

Heard: September 3, 4, 5, 6, 9, 10, 11, 12, 13, 16, 17 & 18, 2013; December 8, 9, 10, 11 & 12, 2014; and May 4 & 5, 2015

Counsel:

• B. Manarin for the Crown
• G. Goulin for the Accused

CAMPBELL J.:

REASONS FOR SENTENCE

1: BACKGROUND

[1] This sentencing proceeding involving Mr. Blair originally came before me in March 2012 by way of preliminary inquiry arising from charges then alleging that Mr. Blair robbed a convenience store while armed with a knife and assaulted the store's proprietors. Mr. Blair was at that time bound by a probation order issued seven months earlier after he plead guilty to breaking and entering a dwelling and stealing property for the purpose of obtaining money to buy drugs. During the course of the preliminary inquiry, Mr. Blair changed his "not guilty" pleas to "guilty" on count 1 (armed robbery with a knife), count 3 (breach of probation, not to possess weapons), and count 5 (assault with a knife). The relevant facts about these offences follow.

[2] On July 9, 2011, shortly after 11:00 p.m., Mr. Blair attended a convenience store, walked up to the counter and requested a carton of cigarettes. He showed a Petro Points card to the female proprietor. Her husband was standing next to her. Both were near the cash register. Following a brief discussion, Mr. Blair simultaneously pulled out a knife and held it in his right hand while grabbing the female store owner's left arm. He brandished the knife, thrusting forward and toward her and toward her husband as he moved in to assist. As the man tried to pull his wife away, Mr. Blair continued to thrust, waive and jab the knife toward both victims until finally letting go of the woman and then grabbed the carton of cigarettes before making his way out of the store. On route to the door, Mr. Blair looked toward the male proprietor again brandishing and jabbing his knife in the direction of the man as he fled. Throughout the ordeal, the weapon was not at so great a distance away from the victim and could have resulted in serious physical harm. Fortunately, no one was cut but the female clerk did sustain abrasions and scrapes to the underside of her forearm as a result of being pulled or tugged and held by Mr. Blair with her arm outstretched across the counter. Two surveillance DVD's depicted the robbery in progress with clarity. Mr. Blair was high on crack cocaine at the time of the offence. He took fifteen hits of crack cocaine during the day. He was running out of the drug and needed money or property to sell so he could buy more. Mr. Blair decided to rob the convenience store about 15 minutes before the robbery. He took his last hit of crack 10 minutes before he entered the store.

[3] Pursuant to s. 752.01 of the Criminal Code of Canada, the Crown moved for an order seeking a remand assessment in accordance with s. 752.1(1). Mr. Blair's past record of criminal convictions was filed as an Exhibit on sentencing. Insofar as this involved a serious personal injury offence and there were reasonable grounds to believe that he might be found to be a dangerous offender under the Code, Mr. Blair was remanded for assessment and preparation of a report. A report dated July 22, 2012 written by Dr. William J. Komer, M.D., F.R.C.P.(C.) was received as an Exhibit on sentencing.

[4] As part of the sentencing hearing, the Crown seeks to have Mr. Blair declared a dangerous offender. Counsel for Mr. Blair and the prosecutor came together to review and assemble an extraordinary amount of documentation which was organized into 12 binders. Together they encompassed documentation of Mr. Blair's record of criminal convictions and sentencing, his involvement with the Children's Aid Society as a teenager, accounts of his time in custody while being managed by the and while in the penitentiary under the direction of Correctional Services Canada.

[5] Phase I of the hearing began with 12 days of evidence which required consideration in regard to the admissibility of documentation. Phase II included five days of scheduled testimony from Drs. Komer and Chandrasena. Phase III consisted of two days of submissions.

[6] Attached to these reasons as Appendix 'A', I have set out a schedule of Mr. Blair's history of offences, the details of which I will review later in these reasons. The appendix summarizes a history of Mr. Blair's criminal activity beginning as a young offender in 1986 when, at the age of 16, he was convicted for break and enter with intent and received a sentence of three months secure custody. Since becoming an adult, Mr. Blair has committed a variety of property and violent offences. They include robbery with and without weapons, sexual assaults, assault causing bodily harm, common assault, break and enter, thefts, escape lawful custody and a variety of breaches.

[7] Mr. Blair has, by my calculation, 49 entries on his criminal record. I would estimate he has spent more than 90 per cent of his adult life in custody and certainly very little time in the community. Most of the time he has spent in the community has been under intensive supervision.

[8] The Criminal Code requires that I find Mr. Blair to be a dangerous offender if the Crown has proved the necessary elements set out in s. 753(1)(a)(i) and (ii). Mr. Blair has been convicted of a personal injury offence. The question now that must be determined is whether he constitutes a threat to the life, safety or physical or mental well-being of others. To make this determination, I must be satisfied upon the evidence there exists a pattern of repetitive behaviour which shows a failure to restrain his 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 behaviour.

[9] Section 753(4) of the Code further provides that if I find Mr. Blair is a dangerous offender, I must impose a sentence for an indeterminate period unless I am satisfied by the evidence adduced there is a reasonable expectation that a lesser measure (determinate sentence with or without long term supervision) will adequately protect the public from the commission of a further serious personal injury offence by Mr. Blair. I propose to address these important considerations following a review of the evidence which will include Mr. Blair's background, his criminal antecedence, his time in custody and in the community and of course the expert testimony.

2: THE OFFENDER'S EARLY YEARS

[10] Eric Patrick Blair was born on November 8, 1969. He did not know his birth father. His step-father was the only father he had known and believed by him to be his birth father until about the age of 14 when he then discovered that his father died while Mr. Blair was an infant. There is a lack of clarity in regard to the reason for his father's death. Accounts from Mr. Blair include an indication that he was a poly-substance abuser who was struck by a train while crossing the tracks. Mr. Blair had a good relationship with his step-father who was an autoworker. Although Mr. Blair did not develop any close personal friendships as a child, he has in the past remarked that he got along well with his peers.

[11] Mr. Blair attended a variety of schools. By grade seven, he was in a special education class. Following his first year of vocational school in 1985, Mr. Blair had not achieved any high school credits. The best I can determine is that his last place of formal education was when he was at the St. John's Training School in Uxbridge, Ontario. There he earned 2.5 credits in Math, Woodworking and Welding.

[12] Mr. Blair was 14 and attending grade nine at Monarch Secondary School when his mother requested the assistance of the local Children's Aid Society. She complained about her son having been picked up by the police, for what was reported be her as the seventh time, and while he had been grounded. The record suggests there was great tension in the Blair family owing in part to difficulties associated with trying to raise Mr. Blair and the role of his step-father.

[13] Eric Blair was in and out of the Society's care until the age of 16. He had a habit of lying and getting into trouble with the law. Agency workers remarked that he did not seem to learn from his mistakes or the consequences which followed. Temporary care and custody agreements were entered into between the family, the Society and the offender but Mr. Blair refused to remain in group homes and in time, he openly defied direction, saying that he had no intention of remaining in the homes or following the rules. He was 16 when the agency terminated its services. The Society worker noted the reasons for termination as follows, "It appears that Patrick is a young man with criminal tendencies and no feelings of remorse or guilt. The prognosis for his treatment appears extremely low." The worker recounted some of the history and difficulties the Society encountered in handling Mr. Blair. Reference was made to a time in 1985 when the teenager agreed to make changes to his conduct, which included lying, stealing, being manipulative, evasive and aggressive. A plan was made for Mr. Blair to go into a highly structured foster home where he would be supervised closely. Mr. Blair, however, continued to steal and displayed no guilt or remorse but rather increased his, "verbal and physical threats to weaker or younger peers in the foster home." He was not willing to change nor would abide by the plan of care. The worker pointed out that his negative behaviour escalated to the point where the foster parents were fearful of his extreme frustration and anger, "...which seemed explosive at times."

[14] The ongoing concerns chronicled in 1984 and 1985 by the Children's Aid Society were summarized in a pre-sentence report to the youth court judge in May 1985 as follows:

"It is rather obvious that Pat is out of control. Parents admit they cannot control him and he is a major concern at the school. He can be pleasant and quite able to argue his case at times, but generally is none too pleasant a person to deal with. He has difficulties with both peers and adults."

[15] Mr. Blair has reported from time to time to correction workers that he has a long standing history of substance abuse which he maintains began around the age of 14. This included alcohol, cocaine, hashish, marihuana and L.S.D. Although there is some inconsistency in terms of reporting when he began to drink alcohol, all of the accounts with respect to controlled substances appear consistent and, in particular, it is noteworthy he first began to experiment with crack cocaine as early as age 13 or 14. By age 18, Mr. Blair was regularly using crack, marihuana and committing crimes. He reported, while in custody, that he was using "an eight ball" on a daily basis. Crack kept him high so he wouldn't have to face reality. Crack cocaine became Mr Blair's drug of choice. He would often use it by himself in abandoned buildings.

[16] As a teenager, Mr. Blair led a transient existence during his periods of release from custody. Mr. Blair's mother once wrote a note to Maplehurst Correctional Complex in December 1988, just after her son's 19th birthday, and requested that he be allowed a temporary absence to come home for Christmas. In the note, Ms. Blair stated, "He has been in and out of jail since the age of 15, more in than out." She went on to point out that Mr. Blair had not been home for the past four Christmases.

[17] Insofar as marriage and children are concerned, the records reveal Mr. Blair first met Denise Mazorolle while he was an inmate in Windsor Jail in or around 1990. In June 1993, she referred to herself as Mr. Blair's common-law wife. He is the father of her then youngest child, Jessie, who was by my estimation born in or around 1992. Denise Mazorolle also had a three or four year old daughter, Raelyn, at the time Jessie was born. Mr. Blair was not Raelyn's birth father. The couple separated while Ms. Mazerolle was pregnant with his son but got back together for a brief period of time after the child was born. Mr. Blair had an affair with another woman named "Jody" around the same time Ms. Mazorolle was pregnant with Jessy. Mr. Blair and Jody had a child s well, named Tevin, born around the same time as Jessey. The next relationship of any significance Mr. Blair had was with a homosexual partner for several years while he was in the penitentiary. Following MR. Blair's release from his second federal penitentiary sentence in 2003, Mr. Blair began dating Julie Hughes. They resided together while he was in the community. They eventually married in 2006 but separated later that same year. A daughter, Shelby was born out of that relationship in 2007. It would appear Mr. Blair has three children from three separate relationships. It would also appear there has been no contact with one child since infancy, very little in the way meaningful contact with his youngest child but periodic contact with the oldest son.

3: CRIMINAL ANTECEDENCE

[18] As touched on earlier, Mr. Blair's formal sentencing dates back to 1986 when, at the age of 16, he was convicted of break and enter with intent. He was sentenced to three months secure custody. Separate and apart from the predicate offence that brought about this hearing, Mr. Blair has thus far been sentenced to penitentiary terms on four occasions. He has been incarcerated, by my count, in at least seven separate federal institutions and in three separate provinces including Kingston, Warkworth, Millhaven, Kent, Mission, Mountain and Port Cartier. Four of these institutions were maximum security. He has, been convicted of 49 separate criminal offences which include violence, sexual violence, use of weapons, theft, escape custody and breaches.

[19] A Correctional Services Canada officer, in November 2007, quantified the time Mr. Blair had been out of custody and in the community as being no more than 13 months since the time of his arrest for sexual assault with a weapon and robbery in July 1993. By my calculations, since the date of that 2007 report, Mr. Blair has been in the community for approximately 220 days or 7.33 months. Therefore, in the past 22 years since the 1993 arrest, Mr. Blair has spent slightly more than 20 months in the community. It would be reasonable to say that Mr. Blair has spent more than 90 per cent of his time as an adult in custody and detention and the greater portion of the remaining 10 per cent spent in the community has been under supervision.

[20] While in custody, Mr. Blair has received numerous misconducts. A December 13, 2010 Offender Tracking Information System Record noted a total of 33 misconducts. Other entries, within the Correctional Services' documentation, reports an extensive accumulation of institutional misconducts which can be summarized to include fighting, assaults, gambling, violation of rules and general incompatibility. As a consequence of all of this, Mr. Blair has spent an extraordinary amount of time in either segregation or protective custody.

[21] As I have indicated, a summary of Mr. Blair's convictions is set out in Appendix 'A' attached to these reasons. It would be helpful, however, to review the background facts associated with those convictions and the sentences that followed in order to better understand Mr. Blair's criminal history.

3.1: Pre-Penitentiary Offences

[22] On February 25, 1988, at the age of 18, Mr. Blair was, in his words, "drunk and high at the time" and subject to a youth probation order when he committed the indictable offence of robbery with his face masked. There is no transcript of the proceeding to provide any more insight in regard to what occurred other than the warrant of committal on conviction indicating that he robbed a woman of $283 dollars while armed with a butcher knife. However, in addition to the information indicating he was high at the time, the documentation reveals Mr. Blair was residing alone, having exhausted his chances with his parents and with the mother of his girlfriend and getting by on social assistance. He was sentenced to nine months of custody followed by one year probation which included as a condition that he attend for substance abuse counselling.

[23] Two months later, in June 1988, Mr. Blair pleaded guilty to a December 1987 offence of robbing a young woman and possessing an automobile knowing it had been obtained by the commission of an offence. He received a 12 month sentence for the robbery and three months for possession of the stolen automobile.

[24] On September 16, 1988, Mr. Blair was paroled from Mimico. Seven days later, he walked away from St. Leonard's House and robbed a prostitute of her purse on Jarvis Street in Toronto. Mr. Blair admitted to having an alcohol problem in addition to substance abuse at the time. He was sentenced a week later to four months in custody consecutive to the time he was required to serve after having been recommitted to custody for parole violation.

[25] On January 3, 1989, at the age of 19, Mr. Blair was unlawfully at large a second time when he walked away from the Birch Correctional Centre. He had been assigned to shovel snow with three other inmates but when checked after a 15 minute interval, he was gone. Tracks in the snow confirmed his departure from the property. He was apprehended two hours later after an O.P.P. dog tracked him down to the scene of a stolen truck which had been taken from the Village of Mount Pleasant. For this offence, Mr. Blair was sentenced to three months in custody to be served consecutive to the time he was already serving.

[26] On August 27, 1990, now at the age of 20 Mr. Blair, together with a young person, stole a motor vehicle. Less than two months later, on October 10, 1990, he was stopped by police and provided a false name. Twenty days later, on November 1, 1990, Mr. Blair broke into a home and stole four rings. The offence was planned. He knew the occupants would not be home so he entered through a back window. Mr. Blair plead guilty to all three offences on November 29, 1990 and was sentenced to a total of 12 months custody.

[27] From the foregoing, it would appear that about one month after Mr. Blair's 18th birthday, he committed his first adult crime by robbing a young woman, Valerie Duquette. He committed another 11 offences before his 21st birthday which included a second robbery and break and enter among others and received sentences ranging from one month to 12 months reformatory.

3.2: First Penitentiary Sentence

[28] On February 29, 1992, Mr. Blair had been with friends at a bowling alley where he consumed a large quantity of draft beer. He then went to his brother's apartment where he drank a quantity of rye. He became so intoxicated that he was not able to recall any of the events which followed. He was 22 years of age at the time. The records reveal Mr. Blair confronted two young women, ages 19 and 20, who were walking home from work. He approached from behind and grabbed hold of a purse from one of the women. His effort to snatch the purse away was unsuccessful as the woman resisted. Mr. Blair resorted to kicking her twice in the thigh and then punched her in the mouth before fleeing the scene after noticing a police cruiser nearby. He was sentenced on March 11, 1992 to his first penitentiary term of two years for the attempted robbery and assault. The sentencing judge warned Mr. Blair about the future difficulty he would encounter and the consequence which would follow if he failed to address his addictions. Mr. Blair was recommended to the Northern Treatment Program for Substance Abuse.

3.3: Second Penitentiary Sentence

[29] Within 48 hours of being in the community on statutory release, and while under the supervision of the John Howard Society, Mr. Blair was again drinking alcohol and by his own admission may have consumed some cannabis as well in violation of his conditions of release. It was July 11, 1993. Mr. Blair was now 23 years old. Shortly before midnight Mr. Blair wathced a young woman come out of a bar and decided to follow her. He followed her to a variety store and, after she exited, Mr. Blair approached the woman from behind and placed his shirt over her head and neck. He told her that he had a gun and directed her to walk down an alley where he forced her to the ground and then rummaged through her purse looking for money. He asked her where she lived and if there was money in her apartment. Taking possession of her keys, Mr. Blair directed the woman toward her apartment. As they walked, the victim asked Mr. Blair to loosen the shirt he had wrapped around her head because it was too tight. In response, while loosening the shirt, he remarked he would tighten it again and kill her if she screamed.

[30] After entering the apartment, Mr. Blair tied the woman's hands behind her back and told her he would not kill or rape her if she did what she was told. He subsequently accused her of lying to him and misleading him and as a consequence told her she would have to pay. This reasoning was used by Mr. Blair on more than one occasion during the ordeal which lasted 1.5 hours. At first, he became upset because he could not find a sheet in the sofa bed where she said one would be located. On another occasion, he complained he could not find any jewellery. On a third occasion, he told her she would have to pay if she was not a virgin. The sexual assault was perpetrated by placing the victim on her stomach, removing her shorts, loosening her shirt and forcing vaginal intercourse. After three attempts at anal penetration, Mr. Blair forced the woman to perform oral sex while threatening her with death if she failed to make him ejaculate. Afterward, he tied her feet together and left the apartment.

[31] When Mr. Blair disclosed his version of the offence to a case management officer during an initial placement assessment, he was not able to say what motivated him to commit the assault. He could say only that it was impulsive and not planned. Mr. Blair was not apprehended at the time of that offence. D.N.A. analysis later connected him to the crime but not until after Mr. Blair struck again while in the community and less than a month later on August 7, 1993.

[32] Similarly, Mr. Blair followed a woman. This time in the area of the University of Windsor as she was walking home from a friend's place. It was approximately 2:00 a.m. when Mr. Blair approached from behind and grabbed the woman in a headlock. He stated that he had a gun and demanded that she walk toward the University. He then forced her to bend over at a porch. He placed his hand on the back of her head, pushing it downward, grabbed between her legs and told her to shut up when she screamed. He placed one hand down the back of her shorts and inside her underwear, digitally penetrating her. He then told her to lie down on the ground, face down, and attempted to take her shorts off. As the woman struggled, Mr. Blair placed his hands over her mouth and again directed her to lie face down. Two males came onto the scene and approached. Mr. Blair attempted to run off but he was apprehended by the men who held him until police arrived. Mr. Blair repeated later that he had no recollection if he was abusing alcohol or drugs at the time.

[33] While in custody, and only two weeks following the August 7, 1993 arrest for sexual assault, Mr. Blair assaulted a fellow inmate and caused him bodily harm. On March 18, 1994, Mr. Blair plead guilty to two counts of sexual assault with a weapon, robbery and assault causing bodily harm. A joint sentence of nine years imprisonment was accepted by the court but not before the sentencing judge remarked that the term of imprisonment was the absolute minimum the court could possibly consider due to the facts of the case.

[34] On September 15, 1997, Mr. Blair assaulted his cell mate by punching and kicking him. On October 25, 1997, again while in custody at Kingston Penitentiary, Mr. Blair damaged the cell sprinkler head causing the segregation cell to flood. He plead guilty to the offence of assault and mischief on January 21, 1998 and was sentenced to two months consecutive on each count to be served consecutive to his penitentiary term. Mr. Blair remained in custody until his warrant expiry date of July 16, 2003.

[35] On July 10, 2003, in anticipation of his release from custody, Eric Blair was ordered to enter into a recognizance for a period of 12 months. The recognizance included a condition he abstain from possessing any weapon, including and specifically knives.

3.4: Third Penitentiary Sentence

[36] On March 18, 2004, when Eric Blair was 34 years old and subject to the recognizance entered into before his release from custody, Mr. Bair committed the offence of robbery with a knife. He was with a friend, high on cocaine and in need of money to buy more of the drug. His friend told Mr. Blair about a man who owed him $50. The two decided to go and try to collect on the debt. On route Mr. Blair found a drywall knife in an alley. He picked up the knife and brought it with him on the advise of his friend who cautioned Mr. Blair about the size and demeanour of the man they were about to confront. When they arrived at the home, the man was not alone. A woman and a 13 year old girl were present. While the friend engaged the man in an argument about the money purportedly owing, Mr. Blair took out what was described as a drywall knife and held it to the neck of the 13 year old girl in attendance and stated, "You move and I'll stab her." Mr. Blair then grabbed the victim's purse and told his friend, "Let's go. I've got your money." The two fled on foot. When the police found Mr. Blair the following day, he had to be chased and upon being apprehended he violently struggled to break free. Mr. Blair was sentenced to his third penitentiary term of two years imprisonment followed by one year probation. Mr. Blair was kept in custody until his warrant expiry date of July 6, 2006.

[37] Over the course of the next ten months that followed his release form custody for the 2004 offence, Mr. Blair was convicted of five more offences for attempt break and enter with intent, possession of break in instruments, breaches of probation and breach of recognizance. He was sentenced three times for a total of six months in the local jail before his fourth penitentiary sentence.

3.5: Fourth Penitentiary Sentence

[38] Mr. Blair was 37 when he received his 4th penitentiary sentence. On May 9, 2007, Mr. Blair smashed out the front windows of two separate businesses so he could enter quickly and remove whatever cash or property was available. He was linked to the crimes through blood D.N.A. evidence found at the scene. Mr. Blair was apprehended while in possession of a stolen motor vehicle after a ten minute high-speed chase with police through the streets of Windsor which only ended after Mr. Blair crashed the stolen S.U.V. into the side of a building. In addition to these offences, Mr. Blair was again in violation of a probation curfew. He pleaded guilty on June 18, 2007 to two counts of break and enter, theft of a motor vehicle, failure to stop for police and breach of probation. He was sentenced to two years in the penitentiary. Again, Mr. Blair remained in custody until his warrant expiry date and even beyond while he waited disposition of a pending application for a preventative measure recognizance.

3.6: Events Subsequent to Completion of Fourth Penitentiary Term

[39] On August 31, 2009, within three weeks of his release from custody, Mr. Blair was arrested again for break and enter and also breach of probation. Mr. Blair pleaded guilty to mischief and was sentenced to one day further custody (38 days pre-sentence custody).

[40] On October 15, 2009, Mr. Blair breached his probation. After 28 days in pre-sentence custody, he was sentenced on November 12, 2009 to a further four days in jail.

[41] Less than a week later, on November 20, 2009, Mr. Blair failed to comply with his recognizance. On December 14, 2009, after 24 days in pre-sentence custody, he was sentenced to one further day in jail.

[42] On December 15, 2009, Mr. Blair entered into an 18 month recognizance to keep the peace and be of good behaviour but less than three weeks later, on January 4, 2010, Mr. Blair uttered threats to cause death and bodily harm when he called a residence where his sister's ex-boyfriend was staying and told the person who answered the phone, "If he doesn't leave, I'm going to boot down the door and kill you, Dave and your girlfriend." Mr. Blair pleaded guilty after serving 20 days in custody and was sentenced to another five days in jail.

[43] Only ten days after his release from custody for uttering threats, Mr. Blair broke into a residence and stole a computer and iPod. He committed the offence to get money to pay for drugs. He was, at that time, subject to a curfew by an order of probation and recognizance. Mr. Blair was sentenced, after serving the equivalent of 19 months in custody, to a further four months in jail for a total of 23 months, followed by probation for three years which included the condition that he abstain from the possession or consumption of drugs and alcohol and not own or carry or possess any weapons or knives.

[44] Mr. Blair's next and final criminal offence was the offence which has brought about this sentencing and dangerous offender hearing as described earlier when, on July 9, 2011, Mr. Blair walked into a convenience store, assaulted the proprietor/clerk and brandished a knife in furtherance of his efforts to steal a carton of cigarettes.

4: RESPONSE TO SENTENCING

[45] I ruled on the admissibility of documents outlined earlier in this decision with the precautionary note that while I felt it was essential I receive the benefit of as wide a range of information about Mr. Blair's background, character, conduct and past behaviour as possible in order to address the issue of public safety, I would remain mindful as I reviewed the documentation that there is a great deal of hearsay information. Although much of it I found to be credible and trustworthy, I would reiterate here as I said during my rulings in Phase I of the hearing that to the extent there appeared a lack of reliability or information which should cause me concern about its accuracy, I would disabuse myself of that information or, where appropriate, measure it by appropriate weight. For example, there were cases where allegations of misconduct were made by third parties which were not substantiated by corrections officers who were charged with investigating matters, while Mr. Blair was in custody. Such complaints of course have been disregarded including allegations were investigations were incomplete. I have, however, relied on information contained within records prepared by professionals who were discharging their duties in the usual and ordinary course of business, carrying out their responsibility and documenting activities as they related to Mr. Blair.

[46] What follows, is a summary of the information I have gleaned from a careful review of the materials marked as Exhibits during the hearing as they address misconducts, issues surrounding counselling, programming and/or treatment, placement and assignment while in custody at the various institutions and Mr. Blair's response to parole and probation while in the community.

4.1: Misconducts

[47] It is interesting to note that the Children's Aid Society workers held the opinion early on during their involvement with Mr. Blair that he was not only defiant toward their efforts to provide him with structure and guidance while in his home, but also dismissive of their efforts to manage him in foster homes even when highly structured and he was closely supervised. It would appear that Mr. Blair made it clear to all who tried to help him early on that he was not intent on following rules. The inability to control Mr. Blair, even in a structured environment from a young age, had proven then to be problematic and has remained elusive as an adult while in custody.

[48] The records maintained by Correctional Services Canada and its provincial counterpart referenced the existence of five binders of records compiled about Mr. Blair's institutional conduct over the years. I do not propose to review nor do I believe I can identify all that have been compiled. It would be beneficial however, to summarize a dozen or so instances over the past 20 years or so in an effort to gain some insight about Mr. Blair's behaviour while in custody serving his sentences.

[49] In May 1991, while in custody for break and enter, escape lawful custody and taking a motor vehicle, Mr. Blair was involved in a fight with an inmate relating to the theft of cigarettes. Two and a half months later, on August 8, 1991, Mr. Blair was noted for misconduct after calling a corrections officer a "fucking asshole."

[50] In May 1992, Mr. Blair was institutionally charged for fighting with another inmate while in the meal line at Millhaven Institution. He also assaulted an inmate at Windsor Jail in August 1993 in an effort to teach the inmate a lesson about the need to share his tobacco. After Inmate Boughner requested the return of his tobacco that Mr. Blair had taken, he was struck by Mr. Blair so hard that it crushed his cheekbone and caused fractures necessitating surgeries and a laceration which required 13 stitches.

[51] On August 16, 1994, Mr. Blair was found in possession of a handcuff key at Warkworth Institution. A review of the reports reveal that Mr. Blair's behavior at Warkworth Institution during this period of time was problematic with numerous institutional offence convictions, including one for calling a female corrections officer a "fucking cunt."

[52] On April 25, 1996, Mr. Blair was found in possession of contraband – a piece of metal made into a long pointed item which could be used as a weapon. Mr. Blair said he had it in his possession for protection. There was no doubt it was a weapon. Two weeks later, Mr. Blair handed a corrections officer a note saying he wanted to be moved and, as part of the request, the note cautioned, "Or there will be a body for you to bag in the morning." On September 3, 1997, Mr. Blair flooded his cell and allowed the water to spill into the range which was not only mischievous but potentially dangerous. During that same period of time, on September 15, 1997 at Warkworth Institution, Mr. Blair punched and kicked a cell mate without provocation.

[53] There was good reason to believe from the circumstances and events leading up to that assault that the reason for the attack was contrived because Mr. Blair wanted his cell mate moved in an effort to get closer to someone else and transferred.

[54] During Mr. Blair's time at Kent Institution, between May 1998 and December 1999, he was involved in at least two fights, one of which led to an institutional charge.

[55] Following his arrival at Port Cartier Institution in December 1999, Mr. Blair refused to be seen for his initial assessment.

[56] In July 2001, Mr. Blair was convicted in what was described as an Institutional Court for setting a fire in the ventilation grill of his cell.

[57] In April 2004, Mr. Blair received a misconduct for "commits/threatens assault." In May 2005, Mr. Blair was involved in an altercation with another inmate near the gym because of an outstanding debt. In December 2005, corrections officers found what was described as a garrote concealed in Mr. Blair's cell.

[58] In August 2008, Mr. Blair responded to a corrections officer's inquiry about additional food items he had taken from the kitchen by telling the officer, "You guys should mind your own fucking business."

[59] In addition to the examples cited to me during the hearing and the dozen or soexamples I have summarized above, it is clear that Mr. Blair has had misconducts for rule violations, mischief, possessing contraband and assaults over many years. One corrections officer noted in December 2010 that Mr. Blair had a total of 33 misconducts to date. They have clearly become greater in number since that time. Two of the most recent examples I could find included a July 18, 2011 incident at the Windsor Jail after Mr. Blair's arrest for robbing the convenience store and assaulting its proprietor/clerk with a knife. Nine days after his arrest, Mr. Blair punched a steel cage which surrounded a phone available to inmates for use at the jail and had to be sent to the hospital for treatment. Mr. Blair reported he punched the cage because he was frustrated after a telephone call with his mother. Then, in February 2012 while in custody at the Stratford Jail pending this hearing, Mr. Blair attempted to conceal but not swallow medications he had been prescribed.

[60] From the foregoing, it is clear the misconducts in custody while varied in nature have been continuous.

4.2: Programming, Counselling and Treatment

[61] Mr. Blair has had some modest and brief moments of success while in custody. Between 1992 and 2007 he completed seven courses of study. He achieved the equivalent of 16 course credits in Geography, English, Mathematics and Manufacturing with an average grade of 85 per cent overall. On April 24, 2008, Mr. Blair received an Ontario Secondary School Certificate.

[62] Insofar as counselling and treatment is concerned, Mr. Blair's most significant achievement related to substance abuse was the receipt of a Certificate of Completion in recognition of his participation in the National Substance Abuse Program – High Intensity while at Warkworth Institution in May 2009. Unfortunately, any reason for initial optimism was soon dashed when Mr. Blair refused to take a urinalysis test 4 days later following completion. Six years earlier he completed ten one-on-one sessions of the Low intensity Deniers sexual offender program. This however was a first step low intensity program.

[63] Despite being informed by others and being aware himself about the recommended need for treatment through programming and counselling, Mr. Blair's record on improving himself has been abysmal.

[64] During Mr. Blair's pre-sentence interview following his conviction for armed robbery with a disguise in 1988, he informed the probation officer about his plan to attend for treatment at Brentwood after his release from custody but he never did. In anticipation of consideration for parole, the Ontario Ministry of Community Safety and Correctional Services noted that Mr. Blair had unresolved substance abuse difficulties and was in need of treatment. Mr. Blair's parole was deferred with the recommendation that he seek the assistance of professionals available within the institution. He was 18 years old at the time. The reason for denial was clear. The advice was sound. Mr. Blair needed to get a handle on his substance abuse problem.

[65] Mr. Blair acknowledged during interviews with correctional officers later that he started using cocaine at the age of 14. And, to quote Mr. Blair said that he "ate acid like candy." After being admitted to Stonehenge Drug Rehabilitation Centre for drug treatment in July of 1989, he walked away from the program within a month of his arrival and not having completed it, stating only that he "didn't want to be there." Six months later, while in custody at Millbrook, Mr. Blair again reported that he had a problem with drug abuse and in particular cocaine and cannabis. However, two and a half months later his parole was revoked and he was returned to Millbrook for not only being absent from St. Leonard's house but also for setting up a drug deal while he was there.

[66] In March 1992, Justice Ebbs referred Mr. Blair to the Northern Treatment Centre. He also had this to say to Mr., Blair about his substance abuse and dependency "You have to get a handle on the drinking and drugs. Otherwise, you will ruin not only your life and the lives of your victims but also the lives of the people that care about you" Mr. Blair told the Correctional Services assessment officer on admission that he needed substance abuse counselling and recognized he could be aggressive when under the influence of alcohol or drugs.

[67] Mr. Blair was accepted at the Northern Treatment Centre and admitted on February 9, 1993 with a projected program completion and transfer date of June 28, 1993. This arose based on Mr. Blair's indication that he wanted to alter his lifestyle and become a better father and spouse to his common-law wife. However, within a month of his arrival at the Northern Treatment Centre, staff concluded Mr. Blair was unable to adjust to the treatment environment. He had accumulated three negative exceptional behaviour reports and three misconduct reports. They found progressive discipline did not work on Mr. Blair and he was therefore removed from the program primarily, "because of the disruptive and negative influence his presence would have on peers if he was allowed to continue with the same attitude and behaviour which staff have attempted to correct." Mr. Blair completed only one session of a domestic violence program. He complained at the time he did not need the program. After being informed it was necessary for him to accept responsibility and complete the program, based on his assessment, Mr. Blair immediately withdrew from the group.

[68] Mr. Blair reported, following completion of his first federal sentence, that at the age of 20 that he was using half an ounce of crack a day and was only able to remain in the community for a short while before being arrested because of his use and the crime which would follow.

[69] Following Mr. Blair's conviction and sentence for the two sexual assaults with weapon and the robbery in 1993, Mr. Blair reported during his custody rating assessment "that he needs and wants treatment for his sexual behaviour and some other longstanding unresolved psychological problems regarding the sexual abuse he endured as a child." However, when it became time to discuss his substance abuse problem, Mr. Blair maintained that he "essentially completed" the Northern Treatment Centre program and therefore no long had any problems with drugs or alcohol, adding that he felt he benefited greatly from the Northern Treatment Centre. This was the same program he was forced to leave before it was completed for accumulating misconducts and being disruptive a year earlier. Nevertheless, Mr. Blair stated he would take and cooperate in with sex offender treatment. He was therefore placed on a waiting list for a group treatment program.

[70] After being classified for maximum security, Mr. Blair was recommended for transfer from Warkworth Institution to Kingston Penitentiary where his program needs could be adequately addressed. Upon his arrival at Kingston Penitentiary, Mr. Blair encountered difficulties. He was found to be in possession of contraband and developed incompatible relationships which prevented him from remaining there. He was therefore returned to Warkworth but only a few months later, Mr. Blair admitted himself into segregation citing debt problems. It is important to note here that Mr. Blair was aware as he acknowledged in writing that while in voluntary segregation, some benefits, privileges and programs normally given to general population inmates were not normally available to him for practical reasons, the details of which had been explained to him.

[71] In September 1997, while at Warkworth, Mr. Blair acknowledged his understanding about the programs he was expected to complete including cognitive skills, anger management, substance abuse and sex offender but maintained that he could not participate because he was in segregation and would therefore require a transfer again in order to be able to access the necessary programming. The request was not regarded as genuine. The details about this believe and concern I will come to later. As indicated, however, what is important here is not only did Mr. Blair acknowledge he needed programming but he submitted to the segregation review team that he wanted to access the programming and felt he could only do so if he was transferred to another institution.

[72] By May 1998, Mr. Blair was transferred to Kent Institution in the Pacific Region. While there, he entered the "Intensive Treatment Program for Sex Offenders." This was the first time Mr. Blair ever participated in such a program regarding sex patterns since his incarceration as a sex offender in March 1994. However, after only two weeks, Mr. Blair decided he was not ready for the program, stating that he didn't want to discuss his life and history of crime. The Correctional Services officers noted, "Mr. Blair does not show much interest working on his contributing factors." They held the opinion Mr. Blair was giving more priority to focusing on getting back together with his partner at Kingston Penitentiary rather than focusing on needed treatment.

[73] In September 1999, at Kent Institution, psychologists concluded that Mr. Blair "lacked insight into his behaviour and was unable to identify his motivation for sexual assaults." Again, they recommended he should successfully complete the "Intensive Program for Sex Offenders" and the "Offenders Substance Abuse Prevention Program" in addition to the "Cognitive Living Skills Program." It was not until May 2000 while at Port Cartier Institution, and after the Parole Board of Canada denied Mr. Blair parole, when he next enrolled in psychological counselling to assist in understanding his sexual offences. However, Mr. Blair attended only one session before he placed himself in voluntary segregation over gambling debts and having incompatibles. Staff had doubts about the merits of his reasons for seeking voluntary segregation. Mr. Blair now suggested that he ought to be transferred to Renous Institution. The transfer team concluded that his request for transfer was not genuine, particularly because Renous Institution did not offer sex offender programs. Mr. Blair then requested a transfer to Port Cartier, again citing his reason for the request so that he could participate in programming but then immediately after, in August 2000, Mr. Blair submitted a note stating that he saw no reason why he should take the programming for which he was to be transferred for and didn't want it.

[74] After a January 2001 parole detention order was confirmed, Mr. Blair stated that he no longer wanted counselling because he failed to see what good it would do him. A few months later, Mr. Blair declined the opportunity to attend the Violence I and Violence II Program. Then, a month later, Mr. Blair requested another transfer so he could participate in sex offender programming. In the meantime, while at Port Cartier Institution, Mr. Blair completed ten one-to-one sessions of the "Low Intensity Denier Sexual Offender Program." It was recommended that because this was a first step or low intensity program, Mr. Blair should participate in further group therapy for sex offending.

[75] Shortly after Mr. Blair's arrival at Maplehurst Correctional Complex in 2004, following his third penitentiary sentence for robbery with a knife, Mr. Blair informed the Correctional Services intake officer that he was no longer the same person as he was in the past. He attributed his conduct for that offence as an impulsive one committed while under the influence of cocaine with the desire to secure his next fix. It was strongly recommended that Mr. Blair participate in programming to address his substance abuse and anger management. It was also expected that he would follow up with sex offender programing, all of which would be available to him at Warkworth Institution. Despite expressing his own willingness to do so, upon his arrival at Warkworth Institution, Mr. Blair requested voluntary segregation because of threats associated with past gambling debts and as such he did not access the needed programming.

[76] Six months later, Mr. Blair was transferred to Joyceville Institution to alleviate his segregation status and to allow him to have access to programming. However, upon his arrival at Joyceville Institution, Mr. Blair again complained that he was not safe in the general population. Efforts to accommodate his concerns with a range change and other considerations were declined by Mr. Blair. A month later, Mr. Blair's review for parole was denied because he had not completed programming, among other things. A week after, Mr. Blair requested a transfer to Mountain Institution in the Pacific Region again under the guise of wanting to access programming in a safe environment which he felt he could not receive anywhere in the Ontario Region. A day later, after making that request, Mr. Blair changed his mind and requested a transfer to Bath Institution (Ontario) citing the reason for his request as program needs. A month later, Mr. Blair submitted a written note withdrawing that request as well. A month and a half later, he requested segregation again stating he was being muscled.

[77] Efforts by Corrections to reintegrate Mr. Blair into the prison population for the purpose of accessing programming were clearly an ongoing challenge. The segregation team cited institutional adjustment due to institutional charges and segregation as the hurdle to be overcome. The team concluded that it had exhausted all options for successful integration for Mr. Blair to be treated in a medium security facility within Ontario. Therefore, in accordance with a renewed request for transfer to the Pacific Region to access programs, the transfer was approved.

[78] However, after arranging for what was an exception to be transferred outside of the Region, Mr. Blair voluntarily informed a Correctional Services officer only one month after his arrival at Mountain Institution that an inmate was dealing drugs. This placed him in jeopardy. A few weeks later, Mr. Blair complained about kitchen workers writing notes suggesting that he would be harmed. In short order, Mr. Blair requested voluntary segregation. The case management team at this time concluded that it had truly exhausted all reasonable efforts to try and return Mr. Blair to the open population in the medium security institution for the purpose of allowing him to access programming. Mr. Blair remained in segregation pending his transfer back to Ontario in anticipation of his warrant expiry date.

[79] Mr. Blair's probation started in July 2006. He was referred to the Windsor Sex Offender Treatment Program in part because he had disclosed, while in custody, that he had been sexually abused at the age of seven. Mr. Blair, however, was not interested in treatment with Mr. Adams and the file was closed within weeks of the referral. The probation officer also referred Mr. Blair to see Dr. John Berek, a probation psychologist, for individual counselling in this regard. Insofar as treatment for substance abuse was concerned, Mr. Blair told his probation officer he did not feel that he needed substance abuse treatment because he had been clean for 28 months. He denied any use of substances while in custody.

[80] Mr. Blair eventually agreed to meet with treatment providers but his sincerity was suspect to the probation officer. After his initial meeting with Dr. Berek, Mr. Blair appeared motivated and expressed a willingness to see the doctor on an ongoing basis with the goals of living a pro-social life and putting his past behind him. Unfortunately, Mr. Blair failed to attend for his appointments with the doctor on several occasions because he was apprehended on new charges and in custody. Ongoing efforts to reschedule appointments with Dr. Berek following Mr. Blair's release from custody met the same fate. It was noted, following one appointment he was able to attend with Dr. Berek, that Mr. Blair was restless and agitated and did not want to talk because he was in a hurry.

[81] The following year, as Mr. Blair was being sentenced to his fourth penitentiary term for break and enter, among other things, he submitted to the court as he had done previously that he was desirous to change his ways and believed that a penitentiary sentence with programming would help him to turn his life around. However, when the judge ordered him to comply with probation following his sentence, Mr. Blair asked the sentencing judge to instead make the probation order non-reporting.

[82] Following his admission assessment at Millhaven Institution in 2007, it was noted that because Mr. Blair may have benefited from the one-on-one counselling at Port Cartier and was facing a relatively short penitentiary sentence of two years, it would be prudent to focus on issues related to his non-sexual offending while in custody with sexual offending programming to follow after he is released in the community. The team was skeptical about whether Mr. Blair would complete the programming recommended, but directed he should enter a high intensity substance abuse program and work on avoiding institutional offences as his goals, among other things.

[83] In an effort to try and assist Mr. Blair in being able to achieve these goals, his risk calculation was varied from medium to maximum and a warrant procured to transfer him from Millhaven Institution to Kingston Penitentiary. Mr. Blair, however, challenged that decision and requested a transfer to Bath or Fenbrook or the Regional Treatment Centre citing as his reason, "To receive treatment for my disorders I suffer from." He was nevertheless sent to Kingston Penitentiary and recommended to enter the Violence Prevention Program. However, two months following his arrival, Mr. Blair placed himself into voluntary segregation citing safety concerns and elected to remain there. When a psychologist was assigned to interview Mr. Blair at Kingston to address his segregated status, Mr. Blair refused to be assessed. This segregation team met again to review Mr. Blair's situation. A decision was made to transfer him to Warkworth Institution, as requested by Mr. Blair with the hope this would not only alleviate his segregation status but also facilitate his access to needed correctional programming in a safe environment. The transfer was effected two months later in April 2008.

[84] I am unable to find anything to indicate that any programming followed. However, the Parole Board concluded three months later, in July 2008, that Mr. Blair would be held until the warrant expiry date because of his high risk to re-offend. The Board specifically expressed concern because Mr. Blair had still failed to complete treatment to address his own complaints of past abuse and to pursue drug treatment. A few months later, Mr. Blair enrolled in the National Substance Abuse Program – High Intensity. One of the workers in that program noted that Mr. Blair appeared motivated to make necessary changes. Four months later, in May 2009, Mr. Blair received a Certificate of Completion in recognition of his participation in that program. However, four days after the program was over Mr. Blair was randomly selected for urinalysis testing. Mr. Blair refused to attend for the test. After being told to attend and being warned that his refusal to attend would result in an institutional charge, Mr. Blair still refused.

[85] Subsequently, in December 2009, Mr. Blair's probation officer reminded him of the need to attend sex offender programming in the community as was previously discussed with him during his last federal penitentiary sentence at Port Cartier. In response, Mr. Blair said he had taken responsibility for his sex offence and did not want to attend any counselling in the area other than to check in with a psychiatrist. He was agreeable to seeing Dr. Berek. The probation officer therefore set up an appointment to see the doctor. However, like before, Mr. Blair missed several appointments as a result of or at least in part because he was arrested on breaches or new charges. Following his release from custody, the probation officer scheduled further appointments to see Dr. Berek. The record suggests Mr. Blair met with Dr. Berek on four or five occasions and during that time was noted to have spoken openly, but on the last of these appointments Mr. Blair told the doctor that he was in a hurry because his son had just gotten out of jail and he was scheduled to meet him in order to assist his son with securing social assistance. One month later, Mr. Blair committed his next break and enter offence. He served out that sentence at the Central North Corrections Centre in Penetanguishene with no programming.

[86] By my calculations, Mr. Blair spent the longest period of time in the community while under probation following his release on February 21, 2011, going for a total of 137 days to July 9, 2011. That was when Mr. Blair committed the predicate offence. During that four and a half months or so, Mr. Blair was living with a woman who had two children. I can find no reference to formal counselling or treatment being attended at that time beyond visits to Dr. Berek on occasion. The last time being only two days before the July 9, 2011 robbery.

[87] While in custody following his arrest, Mr. Blair was seen by Dr. Komer on referral because Mr. Blair reported being depressed and fearful that others might be trying to harm him. Dr. Komer met with Mr. Blair and made an adjustment to his prescription medication.

4.3: Segregation and Protective Custody

[88] The evidence in this proceeding reveals that Mr. Blair has spent an enormous amount of time in segregation and protective custody. There is a relationship between Mr. Blair's inability to access and complete programming and his segregated status. While I have reviewed in detail to this point circumstances surrounding Mr. Blair's programming, counselling and treatment while in custody, and from time to time touched on occassions where his segregated status proved to be problematic, I think it is necessary to also review in reasonable detail the circumstances and extent of Mr. Blair's segregated status while institutionalized over the years. His segregated status has arisen at times administratively by his jailers as a consequence of his own misconduct and at other times for security reasons, but most often Mr. Blair has voluntarily placed himself in segregation and/or protective custody. There has been an ongoing and longstanding practise of voluntary segregation. It can be traced back to his second adult sentence when one month following his incarceration for robbery in June 1988, Mr. Blair requested protective custody in Mimico stating, "A couple of guys are giving me a hassle in the dorm." After Mr. Blair was recommitted to custody at Owen Sound for parole violation and robbery seven days after his release from Mimico and awaiting transfer from the local jail to a reformatory, Mr. Blair requested protective custody because inmates recognized him from the Windsor Jail. Mr. Blair was deemed not suitable to return to Mimico because of his inability to restrict his ongoing use of cocaine and his display of anger and resentment toward institutional authority. He was therefore recommended for transfer to Millbrook for aggression control.

[89] Mr. Blair entered Millbrook in late March 1989. Arrangements were in place for him to enter Stonehenge Therapeutic Community for Drug Treatment starting on July 4, 1989. In anticipation of that programming, Mr. Blair had to be transferred from Millbrook to Wellington Detention Centre. Unfortunately, shortly after his arrival at Wellington Detention Centre, he requested protective custody again because inmates there recognized him from Windsor Jail where he had previously been in protective custody. Mr. Blair remained in protective custody at Wellington Detention Centre through to the date of his arrest on July 28, 1989 when he was unlawfully at large from Stonehenge Drug Treatment Centre at Guelph. Following his sentence, he returned to Millbrook and there again requested protective custody citing "problems with population inmates."

[90] Following his sentence in November 1990 for break and enter of a dwelling, escape lawful custody and taking a motor vehicle, Mr. Blair returned to Millbrook where he again requested administrative segregation. The segregation unit reclassified Mr. Blair from super-protective custody to protective custody and counselled Mr. Blair on the importance of staying out of administrative segregation.

[91] Following Mr. Blair's first federal sentence in March 1992, he was admitted to Millhaven Institution and reported having at least one incompatible and being fearful he would be recognized by others because he had been in protective custody previously. He was admitted to hospital after suicidal ideations and complained about being depressed because of the recent break-up with his fiancé and the possibility of a transfer to Collins Bay Institution. After being assessed by a psychologist, Mr. Blair was returned to Millhaven and placed in segregation for safety before his transfer could be effected because he entered into a fight with an inmate while in the meal line. He was released from segregation shortly afterward but just a couple of months later, in July 1992, following his transfer to Joyceville Institution, Mr. Blair again requested segregation citing the reason as being for his own protection. He remained in segregation while the segregation review unit considered transfer options which included a request by Mr. Blair to be sent back to Millhaven. The same institution where he, only a few months earlier, placed himself in voluntary segregation for fear of others.

[92] At Joyceville, Mr. Blair disclosed that he was getting muscled and believed someone was going to stab him. Mr Blair disclosed the identity of the individuals being involved in the drug trade and said they were responsible for bringing drugs into the institution. Mr. Blair revised his request for transfer to Millhaven, now to Kingston Penitentiary. The segregation case management supervisor was concerned about the possibility that Mr. Blair might remain in segregation for the entirety of his sentence because he refused to return to the general population at Joyceville, was not a suitable candidate for transfer to a minimum security institution and on the wait list for being admitted to the Northern Treatment Centre. In the circumstances, it was determined that Kingston Penitentiary appeared to be the only option. Mr. Blair was willing to go to Kingston. In fact, he had requested it for the sole purpose of having open visits with his girlfriend and to have the opportunity to hold his newborn baby which would not be possible while in segregation.

[93] Mr. Blair's request for transfer to Kingston Penitentiary was approved and effected on October 2, 1992. Two months after his arrival, Mr. Blair again said he was being muscled and did not feel safe in the general population. He requested segregation and now to be transferred to Frontenac Institution. A progress summary review arising from this request observed that following his admission to other institutions, Mr. Blair routinely identified incompatibles and transfers were becoming commonplace for this reason. A transfer now to Frontenac Institution would require a security reclassification as it was a minimum classification camp and to do so for Mr. Blair would be inadvisable "until current programs are completed." The request for transfer to Frontenac Institution was therefore denied. The notification of transfer decision rejecting Mr. Blair's request to go to Frontenac Institution made it clear that his request for transfer would be reconsidered upon being able to reassess his risk factors following successful completion of his program at the Northern Treatment Centre which had been pending for admission and now was available.

[94] Mr. Blair remained in segregation at Kingston Penitentiary until he entered the Northern Treatment Centre in February 1993. As noted previously, Mr. Blair's attendance at the Northern Treatment Centre was cut short by program administrators because he was not participating and was disruptive. He therefore had to be returned to Kingston Penitentiary but immediately upon his arrival he refused entry to the general population and re-entered voluntary segregation where he remained until his statutory release date of July 9, 1993.

[95] Following Mr. Blair's arrest in August 1993 and his sentence for the sexual assaults and robbery in March 1994, the practice of segregation and transfers to institutions to alleviate segregation continued.

[96] Only two weeks following his arrest for the sexual assaults and robbery in 1993, Mr. Blair assaulted a fellow inmate and found himself in segregation. Three days later, while being escorted back to his unit, Mr. Blair threatened a Correctional Services officer telling him to, "Shut your fucking mouth." While at the Windsor Jail, Mr. Blair accumulated numerous misconduct reports for disobeying direct orders, assaulting an inmate, threatening other inmates and staff, being in possession of contraband, using abusive language or insulting gestures and inciting other inmates. As a consequence of his actions, he was in segregation for the majority of those seven months prior to his plea.

[97] Mr. Blair informed the intake officer at Millhaven that he only had problems with staff at the Windsor Jail because the guards had attitude so he would retaliate because of their conduct. Initially, he claimed he had no protective custody concerns at Millhaven but did identify incompatibles at Joyceville, Kingston and Collins Bay Institutions. Notwithstanding, the intake officer noted that Mr. Blair's institutional adjustment remained a concern due to his recent behaviour problems in Windsor, the number of incompatibles he identified in the federal system and his long history of being admitted to protective custody. His security classification was rated as medium but his custody rating scale was placed at maximum. The case management officer concluded that Mr. Blair would be placed at Warkworth Institution.

[98] Within two weeks of his arrival at Warkworth Institution, an offence report and notification of charge was issued to Mr. Blair for entering a cell contrary to the rules of the institution. One month later, Mr. Blair was found in possession of a handcuff key during a strip search. I will not review the full extent of each incident which found Mr. Blair in segregation for the nine years that followed while he served his sentence until his warrant expiry date. Suffice it to say that from the time of his arrival at Warkworth Institution, and during the subsequent time he spent in custody at Kingston, Kent and Port Cartier, Mr. Blair found himself in segregation for misconducts including possessing unauthorized items, disobeying written rules, refusing to do work, being disrespectful and abusive to staff, dealing in contraband, refusing urine samples, creating a disturbance, arguing and fighting with other inmates, setting fire to a ventilation grill and entering prohibited areas. These reasons for segregation are, of course, all separate and apart from Mr. Blair's own numerous requests for segregation and protective custody arising from confrontations or concerns he had with incompatibles and fear arising at least in part from the accumulation of debt obligations he incurred for gambling.

[99] It might however be worth noting here one incident relating to Mr. Blairs segregated status that occurred just prior to his warrant expiry date. In June 2003 a cell extraction team had to be used to take Mr. Blair to segregation.

[100] While in remand custody in April 2004, prior to his guilty plea for the armed robbery with a knife, Mr. Blair received a misconduct and was placed in segregation for four days. He did not incur any institutional charges while at the Millhaven Assessment Unit following his sentence. However, only a few weeks after his transfer to Warkworth, Mr. Blair requested a warden's exception to do cell studies rather than attending classes on the basis that he would work better alone, be less distracted while working in his cell and could avoid being placed in segregation. Two weeks later in December 2004, Mr. Blair was placed in administrative segregation on his own request for safety due to debts he had incurred for cash and cartons of cigarettes a consequence of gambling. Mr. Blair rejected an offer to try to mediate a solution. The segregation team concluded he should remain in segregation until other arrangements could be made. Even while in segregation, Mr. Blair said he was being threatened by another inmate who was trying to get into the segregation unit. Arrangements therefore had to be made to handle Mr. Blair separately from the other segregated inmates.

[101] A Segregation Review Board meeting held at the end of January 2005 concluded Mr. Blair would have to remain in segregation until he could be transferred elsewhere. Two months later, and before any transfer could be effected, the segregation team determined that Mr. Blair ought to be reintegrated into the open population. Efforts to facilitate that goal failed within days of that decision as Mr. Blair again was placed in voluntary administrative segregation because he feared for his personal safety. His segregation status was reaffirmed in May of 2005 but this time involuntarily because he had been the victim of an assault. He was released from segregation the following month in order to facilitate his transfer to Joyceville Institution. However, within three weeks of his arrival at Joyceville, Mr. Blair was placed in administrative segregation, again voluntarily, for his safety. He remained there for a little over a month and was then moved into a transition unit while the case management team worked on a reintegration plan. While in the transition range, Mr. Blair again requested voluntary segregation saying he had been muscled out of his canteen on the range and had been told he would be assaulted in the morning if he did not pay for protection. Mr. Blair was therefore again placed in administrative segregation for safety reasons.

[102] As mentioned earlier, Mr. Blair applied for voluntary transfer to the Pacific Region – Mountain Institution. The review team observed that since the commencement of Mr. Blair's current sentence, he had not had the opportunity to complete required programming due to his segregated placements and attempts made to integrate Mr. Blair into the general population at Joyceville and Warkworth had been unsuccessful due to the incompatibles at those facilities. Having exhausted all options at integration in a medium security facility within Ontario a transfer outside was arranged. To go outside the region was an unusual step. That decision to transfer had to secure special approval. It was made with the proviso that Mr. Blair would be returned to the Ontario Region if he should fail to integrate into the open population.

[103] Before that transfer could be effected and while Mr. Blair remained in the transition unit at Joyceville. Mr. Blair was placed in involuntary segregation after being found in possession of an item which could be used as a weapon. Segregation reviews thereafter confirmed Mr. Blair should remain in segregation pending transfer to the Mountain Institution. The transfer was effected in the middle of February 2006. Unfortunately, within three months of his arrival at Mountain Institution, Mr. Blair informed a Correctional Services officer that his safety was in jeopardy and requested voluntary segregation which was approved. This segregation was maintained right up until his warrant expiry date of July 6, 2006.

[104] Mr. Blair's Millhaven assessment, which took place after his fourth penitentiary sentence in june 2007, observed that based on historical facts, Mr. Blair would not likely complete programs due to either his own lack of motivation or as a consequence of being placed in segregation. Although his custody rating scale indicated medium security, due to the number of incompatibles which had accumulated over the years, it was determined that Kingston Penitentiary was the only option for placement. In furtherance of this ongoing effort to accommodate Mr. Blair's needs, he received a maximum security rating and was transferred in October to the Kingston.

[105] By December, 2007, Mr. Blair was placed in administrative segregation at Kingston. This was done voluntarily by Mr. Blair citing his own safety concern based on a belief he had that inmates on the range had learned about his previous sexual assault conviction. Mr. Blair refused mediation again and refused the offer to try and put him on another range. The next day, Mr. Blair applied for transfer to Warkworth Institution saying he wanted to alleviate his segregated status. The application for transfer was approved on February 6, 2008 in part because there were no relevant incompatibles at Warkworth at the time and with the understanding and agreement that Mr. Blair would be admitted to a double-bunked cell not only to alleviate the segregation but also to facilitate his access to correctional programming.

[106] When Mr. Blair's segregated status at Kingston Penitentiary was reviewed at 91 days a proposal was made to place him in structured range implemented to provide a safe environment for inmates who were having difficulty functioning in regular open population but did not require segregation. Notwithstanding the segregation review team's determination that this would be an appropriate placement for Mr. Blair pending his transfer to Warkworth, he rejected the recommendation and elected to remain in segregation until he was transferred to Warkworth six weeks later. Following his arrival at Warkworth, in April, 2008, Mr. Blair did not initially go into segregation. However, he was not there long enough to receive the benefit of any programming and was released approximately eight weeks later to the Windsor Jail so he could appear on the return of a preventative recognizance application before his warrant expiry date.

[107] As had now become customary for more than a dozen years, Mr. Blair's arrival at the Windsor Jail saw him placed in voluntary protective custody where he remained until his release approximately one month later. Three weeks later, after he was arrested for break and enter, Mr. Blair again requested and was placed in protective custody at Windsor Jail where he remained until his plea and release in October 2009. Mr. Blair was arrested for breaches of probation and recognizance in October, November and December 2009 and, while remanded or serving sentences arising from those breaches, at the Windsor Jail he remained in protective custody throughout citing "problems with people in jail."

[108] Following Mr. Blair's February 7, 2010 arrest for break and enter of a dwelling, he was placed in protective custody at Windsor and remained in that status even after being transferred to the Chatham Jail on October 14, 2010 due to his ongoing problematic behaviour. Following his sentence on December 3, 2010, Mr. Blair was transferred briefly to Maplehurst Correctional Complex due to an overflow at the Chatham Jail. He remained in segregation there as well until he arrived later that same month at the Central North Correction Centre in Penetanguishene. Following his arrival there, on December 30, 2010, Mr. Blair filed a request to be placed in protective custody. The request was approved and renewed and there he remained until his release date on February 21, 2011.

[109] Most recently, following the commission of the predicate offence, Mr. Blair was placed in protective custody at the Windsor Jail citing "known enemies" as the reason. The most recent record I have indicates that on February 19, 2012, Mr. Blair was transferred to the Stratford Jail in an effort to alleviate his protective custody status at Windsor. I have no information in regard to how he has made out since being transferred to Stratford.

5: RESPONSE TO RELEASE AND COMMUNITY SUPERVISION

[110] I will now address Mr. Blair's response to being released from custody and community supervision. There will be, at times, some necessary repetition of certain facts relative to the offences in order to give context all of which is necessary to better understand Mr. Blair's conduct following his release from custody.

[111] When Mr. Blair committed his first adult offence of robbery with disguise, he was not only drunk and high at the time, by his own admission, but was subject to a Youth Probation Order which had followed a sentence of secure custody for break and enter with intent. He was sentenced two months later, while still in custody for robbery and possession of a stolen automobile, and remained in custody until he was paroled in September 1988. Only seven days following his release, and while on parole, Mr. Blair committed the robbery in Toronto after walking away from the St. Leonard's House. He was immediately recommitted to custody to serve the remainder of his sentence and a consecutive time added following his guilty plea for the theft. In short, he committed his first adult offence while subject to a probation order and within seven days of his release on parole he committed robbery.

[112] Only a short time prior to his scheduled release, Mr. Blair escaped custody again when he walked away from the Birch Correctional Centre having been assigned there to shovel snow with other inmates. Mr. Blair was denied provincial parole and a subsequent request by him for consideration was rejected.

[113] He remained in custody at Millbrook until March 29, 1990. Five months later, on August 27, 1990, Mr. Blair stole a motor vehicle. Six weeks later, on October 10, 1990, Mr. Blair was stopped by police. He provided a phony name and escaped custody. Three weeks later, Mr. Blair broke into a dwelling and stole property. I am unable to locate any information in the materials with respect to programming or counselling he may have been referred to following his March 29, 1990 release and the re-arrests that followed, as set out above, which resulted in these various consecutive and concurrent sentences.

[114] After being paroled from Millbrook Institution on April 2, 1991, Mr. Blair was arrested for parole violation one month later and returned to Millbrook. The Provincial Parole Board revoked his parole and refused to allow credit for any remission not only because he was absent with permission from St. Leonard's House but reportedly had set up a drug deal while he was there. The decision also notes how Mr. Blair failed to turn himself into police after being notified that his parole had been suspended. These concerns were in addition to the fact that Mr. Blair had also incurred several new charges while he was at large. There is no information about the date of his release after he was re-committed to custody. The original sentence in November 1990 totalled 12 months, so he may have been at large in the community for a few months before he committed his next offence, which resulted in his first penitentiary sentence. Again, I cannot find any record about his activities under supervision in the community and there does not appear to have been an Order for Probation which would have followed that sentence. Nevertheless, it is clear that Mr. Blair re-offended within months of his release in an intoxicated state when he attempted to rob a woman of her purse and assaulted her on February 29, 1992.

[115] Mr. Blair was released from custody after serving two-thirds of that sentence on July 9, 1993, with conditions he report to and be under the supervision of the John Howard Society, at Windsor, attend psychological counselling and refrain from the consumption of drugs and alcohol. Less than 40 hours following his release, and after drinking and using cannabis in violation of his release conditions, Mr. Blair robbed and sexually assaulted a woman. Less than a month later, he struck again when he sexually assaulted another woman near the University of Windsor. This time, he was apprehended and while in custody at the Windsor Jail two weeks later he decided to teach a fellow inmate a lesson for not sharing his tobacco by assaulting him.

[116] As indicated previously, Mr. Blair was kept in custody until his warrant expiry date, July 16, 2003. He entered into a preventative measure recognizance under s. 810.2 in contemplation of that release.

[117] But before his release, Mr. Blair met Julie Hughes and began dating her after he was released from custody. Information received by authorities suggested that Mr. Blair was actually baby-sitting Ms. Hughes' children. The Children's Aid Society became involved as it felt Mr. Blair should not have unsupervised access to the children. Although the Society remained involved, there were no reported incidents of specific concern involving Mr. Blair and Ms. Hughes or her children. Mr. Blair remained out of trouble with the law for eight months before he committed his next offence. It would appear from what I've read that those eight months were Mr. Blair's most stable and trouble free period of time during his adult life.

[118] Mr. Blair had received approximately $3,000 or $4,000 in the form of compensation as a victim of crime around the time of his release. His employment, however, was limited to a month or so when he worked in two restaurants as a short order cook. Mr. Blair reported that he lost his employment because the police frequently attended the restaurants.

[119] Mr. Blair began a two year probation order after he was released from custody following his third penitentiary sentence which he served at Millhaven, Warkworth, Joyceville and Mountain. As a high risk intensive supervision offender, Mr. Blair was watched carefully. He was referred to the Windsor Sex Offender Treatment Program to see Paul Adams but nothing came of it after it was determined that Mr. Blair was not suitable because he would not open up to group counselling.

[120] Mr. Blair was living with Julie Hughes again now in her mother's basement apartment. The couple got married and reports indicate Ms. Hughes was cooperative with probation. She denied any history of violence in their relationship but reported that Mr. Blair was frustrated about the inability to secure and maintain employment. He appeared motivated and was willing to see a psychologist. However, concern grew when he missed some appointments with his probation officer and spoke about repeated cravings and the struggle he was having to avoid drug use. Mr. Blair rejected his probation officer's suggestion to attend a residential treatment program but remained agreeable to seeing Dr. Berek. Within a few months of his release, Mr. Blair and Ms. Hughes separated. He relocated to his parents' home but failed to inform his probation officer about his change of address. He was not forthright with his probation officer when he maintained he was only visiting his parents, notwithstanding Julie Hughes, her mother and Mr. Blair's own mother indicating otherwise. Mr. Blair had to be reminded about his high risk intensive supervision status and the consequences of being breached for dishonesty.

[121] The probation officer's concerns increased when Mr. Blair's mother disclosed she had not seen Eric recently and had not shown up for Thanksgiving dinner either. She expressed concern that he was again using drugs and had been associating with a known drug user. She was contacted by the probation officer because Mr. Blair failed to show up for his scheduled appointment and failed to attend with Dr. Berek as well. The following day, a warrant was sworn out for his arrest. Two days later, Mr. Blair was located already in custody with new charges of break and enter and possession of stolen property. He was charged together with the drug user Mr. Blair's mother spoke about to his probation officer. Following Mr. Blair's release from custody for that offence, he entered into an 18 month Order of Probation. He was again a high risk intensive supervision offender. He reported committing the offence because he was saddened and stressed about the break-up of his marriage which caused him to start using marihuana and alcohol. He denied any use of crack at the time.

[122] During this period of probation, Mr. Blair again started to miss appointments both with his probation officer and Dr. Berek which had to be rescheduled. Within a month of this last release that Mr. Blair was arrested again for a curfew violation. He was stopped by police after midnight, had been drinking, refused to provide his name and fled on foot. He tried to justify his reason for being out late with his probation officer saying it was "not a big deal" because he was helping someone. Mr. Blair said he was no longer interested in seeing Dr. Berek and suggested all that he needed to do now was to report to his probation officer as required. He was released on bail with the requirement that he report to the John Howard Society Bail Program. He failed to report to complete the paperwork as required. The appointment was re-scheduled, but Mr. Blair failed to report again. The bail violation was reported and Mr. Blair was arrested for breach of his recognizance.

[123] The pending charge of breach of probation for curfew violation and now the breach of recognizance of bail were dealt with on April 17, 2007. Following his release for what was essentially a time-served situation, Mr. Blair reported to his probation officer and initially agreed to see Dr. Berek again. He acknowledged that he started to use crack cocaine again but minimized his most recent offences as not serious. When he attended with Dr. Berek, he was not engaged and said he was in a hurry. Within a week, Mr. Blair was arrested again for breach of probation. Following his release, he now had a new address. Mr. Blair was very troubled from the outset of this release. He reported to his probation officer that he was again under the watchful eye of the authorities including the Children's Aid Society arising from a new living arrangement with a different woman and his sister with children. He believed that he and his new girlfriend were being harassed. He moved into the Fort Malden Motel and was scheduled to see Dr. Berek but arrested for two counts of break and enter, theft of a motor vehicle, failure to stop for police and breach of probation before making it to his the appointment.

[124] After completing his fourth penitentiary term of two years through to the warrant expiry date, Mr. Blair began a one year term of probation. Before being released into the community again, his performance was reviewed at Warkworth Institution. Mr. Blair was reminded about the difficulties he continued to encounter from his ongoing use of crack cocaine. Notwithstanding, Mr. Blair said he felt extremely confident this time that he could resist using crack cocaine because he wanted a better life. He was encouraged to achieve sobriety by following a plan which would require him to attend Narcotics Anonymous at least three times a week and to find a sponsor who could assist him. He was instructed to stay motivated with this goal of abstinence in mind and to remain on guard for adverse triggers which could set him off in the wrong direction again. The writer of that report expressed reservations, however, about the sincerity of Mr. Blair's stated intentions pointing to his refusal to attend for urinalysis testing only four days after completing the High Intensity Substance Abuse Program.

[125] In anticipation of that warrant expiry date, Mr. Blair was sent to the Windsor Jail where he was remanded from time to time to deal with outstanding matters, including a preventative measures peace bond application that was pending. Twenty days after he was released from the Windsor Jail, Mr. Blair was charged with break and enter but pleaded to mischief. One week later, he breached his probation. Seven days following his release from that sentence, Mr. Blair was charged again for failure to comply with the recognizance of bail. The probation requirements which followed those sentences were again monitored as extremely high risk to re-offend.

[126] Mr. Blair was now residing with his sister again. He was directed to attend the John Howard Society and participate in the anger management and substance abuse counselling programs. He reported not being interested in any sex offender programming saying that he had already paid for those crimes. The probation officer could barely get beyond the initial consultation following release and preliminary planning for reintegration before Mr. Blair committed another offence, this time uttering a threat to cause death and bodily harm. Following his plea and release from custody for uttering threats, Mr. Blair reported as required pursuant to earlier probation orders and again agreed to see the probation staff psychologist. Once again, nothing more happened beyond an initial meeting and review following his release from custody before Mr. Blair was arrested, this time for break and enter and breach of probation. His 23 month sentence, inclusive of pre-sentence custody, was followed by a three year Order of Probation which, of course, required him to abstain from the purchase, possession or consumption of alcohol and drugs and not to own or carry any weapons or knives.

[127] Before Mr. Blair was next arrested, four and a half months later, he appeared to enjoy a relationship with another woman whom he described as his fiancé. She had apparently visited him in jail and he believed she would keep him on the "straight and narrow." He initially reported to Narcotics Anonymous as directed by his probation officer but soon after started to miss appointments. He was again found under the watchful eye of the Children's Aid Society because the woman he was residing with had a ten year old daughter. The expectation was that he would move out of that home, but Mr. Blair became troubled by this prospect saying he would prefer to go right into jail rather than live at the Salvation Army or his parents' home again. He spoke about an inevitable relapse into drug use. His probation officer made inquiries on his behalf in an effort to better understand the Society's position and then communicated this to Mr. Blair with condolences followed by instructions to do the right thing and to avoid situations which might bring him into conflict with the law. A week or so later, Mr. Blair said he found a new residence but would continue seeing the woman with the child. He shared his frustrations with Dr. Berek about the difficulties he was having with the Children's Aid Society and this new relationship. He requested Dr. Berek to prepare a suitability assessment he could rely upon for the purpose of cohabitation and access around the woman and her daughter. The doctor indicated he was not able to do so.

[128] Mr. Blair struggled to find some stability by way of a place to live. Although he reported for several appointments with Dr. Berek during May, June and into the first week of July 2011, two days after that last appointment, Mr. Blair committed the predicate offence. He reported to Dr. Berek that he was frustrated in particular because complaints had been made to the Society and the police by his new partner's ex-husband about him being a child molester at a time when he was already feeling stressed about his residency situation. This was all building up within two weeks of the convenience store robbery.

[129] By my calculation, this period of four and a half months in the community and under the supervision of a probation officer was the second longest period of time Mr. Blair had remained out of custody since his release in July 2003 which lasted for a period of eight months before he committed his next offence, although at that time he was not under any form of supervision or rehabilitative programming. During both of these occasions, Mr. Blair was involved in a relationship with a woman who had a child and was struggling to find some stability.

[130] As I indicated earlier, the best I can determine by drawing in part on calculations previously done, subsequent to Mr. Blair's August 1993 arrest that for a period of now more than 22 years, Mr. Blair has spent a little more than 20 months in the community and during that time he has not completed any counselling or received the benefit of any treatment or programming to help him gain better insight about his behaviour, how to avoid conflict, manage his addictions and control his frustrations.

6: EXPERT EVIDENCE FROM PSYCHIATRISTS

6.1: Dr. William Joseph Komer

[131] Dr. William Joseph Komer testified further to his July 22, 2012 assessment report which was relied upon by the Prosecution in support of the Dangerous Offender Application. He received the benefit of additional material which was produced later in the proceeding and subsequent to his report. He was qualified as an expert to provide opinion evidence in regard to the diagnosis and treatment of mental health disorders including the assessment of dangerous offenders. He is a forensic psychiatrist with extensive experience and has appeared before courts and administrative tribunals in an effort to assist with understanding mental health aspects in the legal setting. He was certified as a forensic psychiatrist by the Royal College of Physicians and Surgeons just shortly after the College introduced forensic psychology as a new certificate designation in 2013.

[132] Dr. Komer reviewed the extensive material I have referred to. Included within the material are the results of actuarial testing. The doctor explained these tests are typically used by psychologists employed throughout the Correctional Services and other public institutions in an effort to measure risk and management. Examples include the VRAG (Violent Risk Appraisal Guide), the PCL-R (Psychopathy Check List-Revised), and the LSI-R (Level of Service Inventory-Revised) used to predict the risk of violent recidivism. For recidivist sex offenders, examples include the RRASOR (Rapid Risk Assessment for Sex Offender Recidivism) and the STATIC-99 tests.

[133] Dr. Komer explained that while these tests are used by many in the field of psychology and serve as useful tools, it has been his practice not to use actuarial instruments to conduct his assessments. While he will not ignore them and give appropriate consideration to them when available, it has not been his practise to rely on them either as a clinician or a forensic psychiatrist. He testified there is no industry standard or direction to indicate that risk management testing ought to be used or rejected. Some psychiatrists hold the opinion that they ought to be used while others do not. Simply put, Dr. Komer held the opinion they are a useful tool when available but not a necessary one. The two perspectives he described as "risk-based testing" on the one hand and "good clinical judgment" on the other. He offered examples why he believed strict reliance on instruments which are used to determine a value or score to assess risk might be inaccurate and for this reasons, and I suppose others, his preferred methodology is the "good clinical judgment" approach.

[134] Dr. Komer's opinion is that Mr. Blair is a threat to the well-being of others because he cannot control his behaviour and would be best managed now and in the foreseeable future in a correctional facility while under psychiatric and psychological care and supervision to ensure he abstains from the consumption of non-medically prescribed substances. The reason for the doctor's opinion arises from a review of Mr. Blair's history and a variety of characteristics which make up Mr. Blair's condition. With these in mind, the doctor expressed his opinion that Mr. Blair is both anti-social and psychopathic. These two conditions, he explained, makes Mr. Blair a very difficult individual to treat. He added that such a person tends to fake empathy and lacks remorse.

[135] In an effort to better understand the uniqueness of Mr. Blair's condition, the doctor explained that roughly half of the prison population is likely anti-social. Within that group, there might be only ten or 15 per cent of the prison population that is psychopathic. While not everyone anti-social is psychopathic and not everyone who is psychopathic is anti-social, there is an overlap in psychopaths who are also anti-social. What I gleaned from this explanation is that Mr. Blair's condition is one that brings him within a small percentage and unique group of offenders.

[136] A noteworthy concern about Mr. Blair is that he has a well-documented history of lying and being manipulative. The behaviour dates back to Mr. Blair's involvement with the Children's Aid Society as a teenager and was continued as readily identifiable and consistent as an adult. This is evident from a review of the Correctional Services Canada's extensive materials, Parole Board decisions and provincial probation records. Mr. Blair's family could not deal with him as a teenager because of his ongoing dishonesty. This continued into foster care and group homes. A pattern of behaviour could be seen emerging from a young age. It did not take long for the Parole Board to brand Mr. Blair as a liar. The doctor pointed out that in addition to the numerous examples of lying and manipulation found throughout the years that Mr. Blair has been involved in the Justice and Correctional systems. This behaviour has continued even most recently when Mr. Blair was in custody and being administered medication as a tranquilizer and mood stabilizer when he attempted to manipulate the Correctional Services officer on no less than three occasions by hiding pills and stating he had swallowed them, likely for the purpose of hoarding and later distributing them while in the correctional facility.

[137] One of the more striking examples of Mr. Blair's efforts to manipulate others and the system was observed as he tried to achieve closeness in proximity to a male partner he eventually married in prison. Authorities initially did not appreciate why Mr. Blair was trying to have himself segregated and counselled him to remain in the population. Not getting what he wanted, Mr. Blair ended up in a confrontation with an inmate he owed money to. After his injury was treated, he was segregated. Subsequent information revealed that Mr. Blair was trying to be put into segregation. He added to his story that he was receiving threats during the days leading up to the assault. Then, after entering segregation, Mr. Blair learned that his male friend and future partner was about to be transferred to another institution. Mr. Blair immediately sought to be transferred to the same institution because of incompatibles which made it difficult for him to be among the general population and access needed programming. After Mr. Blair and his partner were ordered separated, the pair flooded their cell which spilled into the range. They continued to be disruptive. After next learning that Mr. Hanson had been approved with an effective date for transfer, Mr. Blair argued that it would be in his best interest to be transferred to the same institution so he could complete his outstanding programming.

[138] When a cell mate was added to Mr. Blair's cell, he told the Correctional Services officer to remove the inmate "before I kill him." The inmate was subsequently assaulted by Mr. Blair and left with a cut lip, black eye and considerable swelling and redness all over his entire face. As a result, that person was added to Mr. Blair's list of incompatibles and further fodder for his argument to be transferred to Kingston Penitentiary where Mr. Hanson would be going. Investigations concluded the attack was staged for that specific purpose. It was also concluded the transfer would not be beneficial for Mr. Blair for programing in any event as he had a history, by that point, of chronic protective custody both in the provincial and federal systems.

[139] The doctor pointed to the numerous examples where Mr. Blair convinced Correctional Services officers to arrange for transfers so that he could participate in programming but then summarily placed himself in segregation. In addition to being labeled as a liar and described as manipulative and disingenuous, one Correctional Services officer described Mr. Blair as superficially charming, meaning that he appeared convincing but was not genuine. One set of actuarial testing which was undertaken included values which could not be relied upon after it was concluded that Mr. Blair was trying to manipulate the results. Even in the courtroom following one of his sentences, Mr. Blair indicated he wanted to improve himself and get the support he needed but then tried to persuade the judge not to order a period of probation to follow his custody. Most recently, with respect to the predicate offence, the video reveals how Mr. Blair enticed the store clerk with what appeared to be a debit card to facilitate a transaction. First he tried and then the clerk tried. It was all a charade in an effort to distract the clerk and engage the clerk so he could find an opportunity to steal money or the carton of cigarettes he eventually left with.

[140] The doctor also pointed out how Mr. Blair maintained he had been reporting to Dr. Berek based on a genuine expression of interest to see him for counselling as part of his probation. However, during Dr. Komer's interview with Mr. Blair for the purpose of conducting his assessment, Mr. Blair disclosed that during the two week period prior to the convenience store robbery he had been using crack cocaine on multiple occasions but said nothing of this to Dr. Berek even though he had seen the doctor only a couple of days prior to committing that offence.

[141] The doctor highlighted these and a variety of other instances where Mr. Blair has been dishonest and manipulative.

[142] Dr. Komer also discussed Mr. Blair's likelihood of reoffending for a couple of other reasons. Perhaps most significantly there is Mr. Blair's refusal to deal with his substance abuse problem. This he described as a significant contributing factor to the commission of his various offences over the years and has been ongoing from a young age. He has re-offended continuously and cumulatively since he was a teenager and the number of violent offences is not only significant but in fact some of the most serious offences have involved women and the use of weapons. His multiple breaches and failures to comply and the short period of time it has taken Mr. Blair to re-offend when he has been released into the community increases his likelihood to re-offend. With all this, Mr. Blair's lack of a social network and lack of insight into his problems coupled together with his anti-social personality disorder and psychopathy are great cause for concern.

[143] For these reasons, and others articulated during the course of the doctor's testimony, Dr. Komer held the opinion that Mr. Blair is not only a dangerous offender but also believed there was no reasonable possibility of the eventual control of his risk in the community and he remains a threat to the life, safety and physical and mental well-being of others.

6.2: Dr. Ranjith Chandrasena

[144] Dr. Ranjith Chandrasena is the Chief of Psychiatry and an adjunct professor at the Schulich School of Medicine and Dentistry, at the University of Western Ontario. He is in charge of the mental health and addictions program at Chatham-Kent Heath Alliance. Dr. Chandrasena was also qualified to provide opinion evidence in regard to the diagnosis and treatment of mental health disorders including an assessment of dangerous offenders. Although not formally qualified as a forensic psychologist with a designation or certificate from the Royal College of Physicians and Surgeons, the doctor testified that 20 per cent of his practice is in the realm of medicolegal work.

[145] Dr. Chandrasena did not dispute Dr. Komer's opinion that Mr. Blair has an anti-social personality disorder with psychopathy and agreed with Dr. Komer's assessment that Mr. Blair has conditions including dysthymia, situational anxiety, poly-substance abuse, personality disorder with anti-social and paranoid features in addition to anger and impulsivity. However, Dr. Chandrasena held the opinion there was a reasonable prospect for reducing Mr. Blair's pattern of recidivism.

[146] The doctor explained that Mr. Blair's disorders are associated with known criminal behaviour which tends to diminish over time. As such, he believes it is best to look at Mr. Blair's conditions carefully for diagnosis and treatment with more emphasis on Mr. Blair's recent years. The doctor believes that Mr. Blair has a neurological imbalance which can be treated by algorithms or step by step procedures. In this case, by using medications and treatment methods. He stated that there has been much progress made in recent years by adopting strategies to target problem areas. As he put it, to try focusing on one thing first then moving forward and adjusting or trying something else before taking the next step. To achieve this end, Dr. Chandrasena recommended a psychopharmacology approach to treatment which he believes Mr. Blair will respond to in conjunction with psychotherapy. Collectively, he referred to this approach to treatment as Cognitive Behavioural Therapy (CBT).

[147] Dr. Chandrasena said that Mr. Blair has not had the benefit of this approach to therapy. In order for it to work, the doctor said it was important that Mr. Blair be capable and able to develop a trusting relationship with his treatment providers. The doctor believes this would be achievable as Mr. Blair has demonstrated in more recent years, that he can complete programming as he did in 2007 when he received his certificate for substance abuse counselling. As far as developing a trusting relationship is concerned. Dr. Chandrasena pointed to the fact that Dr. Komer met with Mr. Blair on two occasions while he was in custody following his arrest for the predicate offence and that he was treated by Dr. Komer when he adjusted the dosages of his prescription medicine. Most significantly, Dr. Chandrasena pointed to the fact that notwithstanding Dr. Komer being the author of the medical assessment report filed with the court which concluded Mr. Blair was a dangerous offender, Mr. Blair reported to Dr. Chandrasena that he liked Dr. Komer and felt comfortable with him and most importantly could trust him and regarded him as someone he could work with. Dr. Chandrasena felt that this demonstrated Mr. Blair's ability to form a trusting professional relationship. Reference was also made to past relationship Mr. Blair formed with others, including two common-law partners in addition to Mr. Hanson whom he eventually married in prison.

[148] The doctor also said that in order for CBT to be effective, Mr. Blair must be able to enter a social environment in the community. He had no knowledge about the availability of this methodology for treatment in the prison system but doubted it would be available or practised there. He stated that, while initially group therapy in an institutional setting can be helpful and it might be a reasonable first step because those would be the individuals in Mr. Blair's immediate community who Mr. Blair and his therapist could look to for the purpose making initial progress, group therapy would have to be continued in a social setting or in the community as well in order to achieve success for reintegration. This is important, the doctor pointed out, because Mr. Blair has not had the opportunity to even be exposed to such a measure because he has always been institutionalized.

[149] The doctor testified that psychotherapy has improved vastly in the last ten years or so. He believes that Mr. Blair can benefit from it and is capable of showing progress.

7: ANALYSIS

[150] This sentencing hearing goes beyond the usual inquiry about the nature of Mr. Blair's most recent offences, the circumstances surrounding their commission and the consideration of his past record of convictions. It includes an inquiry into assessing the risk of Eric Blair's future violent behaviour and the impact that violent behaviour might have on others.

[151] Section 753 of the Code sets out the basis upon which the court may find that an offender is a dangerous offender. There are two bases for consideration at issue in this proceeding. They are described in sections 753(1)(a)(i) and (ii) which provide that:

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 the 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

[152] Sections 753(1) and (1.1) provide that the court must find Mr. Blair a dangerous offender if the elements prescribed in either subsections set out above have been proven beyond a reasonable doubt. The Crown argued that Mr. Blair satisfies both definitions and in accordance with the statute, I must therefore find him to be a dangerous offender. As a consequence of such a finding, it was recommended that I impose a sentence of detention in a penitentiary for an indeterminate period.

[153] Counsel for Mr. Blair submitted that notwithstanding the fact there is legitimate cause for concern about Mr. Blair and the need to protect society, a lengthy sentence of incarceration combined with a form of long term offender order as provided for in s. 753(5) of the Code is the appropriate sentence because there is a reasonable possibility of eventual control of Mr. Blair's risk in the community. To this end, the offender relies heavily on the testimony of Dr. Chandrasena and urges the court to conclude that Mr. Blair is treatable, as a person one who appears to be able to establish meaningful relationships and whose condition is such that he could benefit from CBT in a controlled setting.

[154] In the alternative, but for similar reasons, it was submitted on behalf of Mr. Blair that if I should find him to be a dangerous offender, the appropriate disposition should be a determinate sentence followed by long term supervision.

7.1: Is Mr. Blair a Dangerous Offender?

[155] As indicated above, Mr. Blair must be found a dangerous offender if the statutory criteria of s. 753 are met. I will now address those conditions.

[156] One of the offences Mr. Blair has been found guilty of is the indictable offence of robbery while armed with an offensive weapon, namely a knife. This is a serious personal injury offence under s. 752(a) of the Code as it involved the use of violence and for which Mr. Blair may be sentenced to imprisonment for ten years or more.

[157] Insofar as Mr. Blair has been convicted of a serious personal injury offence, I must now determine whether he constitutes a threat to the life, safety or physical or mental well-being of other persons.

[158] To answer this question, I must be satisfied there is evidence establishing a pattern of repetitive behaviour showing a failure to restrain his behaviour or indifference respecting the reasonable foreseeable consequences to others.

7.1(a) Pattern of Repetitive Behaviour

[159] In R. v. Hogg, 2011 ONCA 840, 287 O.A.C. 82, the Ontario Court of Appeal indicated that a pattern of behaviour will be demonstrated where it is shown the offender has committed crimes with significant similarities. At pg. 82, the court stated the following:

"To summarize, the pattern of repetitive behaviour that includes the predicate offence has to contain enough of the same elements of unrestrained dangerous conduct to be able to predict that the offender will likely offend in the same way in the future. This will ensure that the level of gravity of the behaviour is the same, so that the concern raised by Marshall J.A. [in Newman] – that the last straw could be a much more minor infraction – could not result in a dangerous offender designation. However, the offences need not be the same in every detail; that would unduly restrict the application of the section."

[160] Since 1988, Mr. Blair's pattern of behaviour has been strikingly similar. While the categories of offences essentially involve property and violence, there is a close relationship between the two as Mr. Blair tends to behave violently in his efforts to secure property and often that behaviour has included the use of weapons.

[161] Mr. Blair has been convicted of robbery five times and attempted robbery once. Five of those robberies included the use of a weapon; three involved the use of a knife, the most recent one being the predicate offence, and all of them involved women.

[162] Another similarity is how the violence perpetrated has tended to escalate when Mr. Blair is not able to immediately secure the money or property he desires. When Mr. Blair approached a young woman from behind and grabbed her purse but was unable to snatch it away, he did not let it go but rather became violent when he punched her and kicked her twice before he fled but only because he had seen a police cruiser in the vicinity. The horrendous assaults perpetrated against the two separate women within a month of each other in 1993 again reveal how Mr. Blair approaching from behind to gain control of his helpless victims late at night. The one victim in particular did not have anything of value in her purse. As he came up empty or did not get what he wanted, Mr. Blair told the woman she would have to pay for misleading him. Then, in 2004, when a demand for money reportedly owing for a debt was not being met, Mr. Blair grabbed a 13 year old girl standing nearby and placed the knife to her neck stating, "You move and I'll stab her," and only let her go after getting the money. Most recently, in 2011, when the store clerk was obviously puzzled by Mr. Blair's proposed method of payment for the carton of cigarettes with a useless debit card and Mr. Blair did not have immediate access to the cigarettes, Mr. Blair grabbed hold of the woman's arm and pulled her while at the same time brandishing his knife in an effort to secure the property he desired.

[163] Finally, it is clear from a review of Mr. Blair's past index offences there has been a correlation between his violence and his substance abuse.

[164] Mr. Blair's violent recidivism has been uncompromising. The similarities in his crimes are apparent. Spattered in and among the history of these particular offences I have referenced here in these last few paragraphs are other incidents of violent behavior which I have already discussed in these reasons that involved confrontations with other individuals while Mr. Blair was in custody. It is difficult to put too much weight on the lot of those occurances without understanding more about the dynamic involved, save one when, in 1993, Mr. Blair wanted inmate Boughner's tobacco and determined it was necessary to teach him a lesson. Not to be so far removed as to date and time is the 2010 conviction for utter threat when Mr. Blair, purportedly on behalf of his sister who was upset with her ex-boyfriend, called the home where the ex-boyfriend was believed to be staying and told the occupant, "If he doesn't leave, I'm going to boot down the door and kill you, Dave and your girlfriend." While no direct violence was involved, I cannot lose sight of the fact that Mr. Blair has threatened others with consequences before he committed violent acts. The cumulative effect of all the similarities found within Mr. Blair's crimes reveal a pattern of repetitive behaviour that Mr. Blair has an inability to restrain his conduct as well as a substantial degree of indifference to the foreseeable harm this predicate offence and others has caused.

[165] I am satisfied the patterns described in ss. 753(1)(a)(i) and (ii) have been proved beyond a reasonable doubt.

7.1(b) Likelihood of Death or Injury

[166] Finally, I must determine if there is evidence establishing a likelihood that Mr. Blair will cause death or injury to, or inflict severe psychological damage on another person as a consequence of his failure in the future to restrain his behavior. The jurisprudence cited to me suggests that the Crown's onus to prove likelihood is focused on probability of risk or a real potential to bring about the harm at issue in the subsection. While I must be satisfied beyond a reasonable doubt that the evidence demonstrates a likelihood of the harm, I need not find beyond a reasonable doubt that Mr. Blair's inability to restrain his behaviour will bring about death or injury or severe psychological trauma as a consequence of his failure to restrain his behaviour.

[167] While few would argue it is difficult to predict dangerous behaviour with any degree of certainty, including the professionals who toil in the area of research and study of the human mind, mental health workers, tribunals and courts are called upon regularly to make decisions in respect of detaining individuals where there is a risk of harm. To assess this likelihood it is necessary to look at Mr. Blair's past criminal behaviour together with the predicate offence and surrounding circumstances in order to determine the likelihood of him causing the type of injury or harm provided for in the Statute.

[168] The answer to this question could not be clearer. Mr. Blair is simply unable to manage himself. By his own admissions, when he gets out into society he seeks out drugs and then re-offends to get money to buy drugs. It is common place that he will act out in a violent manner to secure that which he desires. This behaviour has been ongoing and has never subsided. It can be traced back to his youth. It is not just the offences but the conduct that surrounds them which is the predictor. He has never gained control of his drug addiction and it has, more often than not, been the impetus for his violent behaviour. Even separate and apart from that motivation, there is the concurrent inability to manage his stressors and ultimately control his anger.

[169] As I said, these observations are not isolated to one, two or even a few offences. Mr. Blair's aggression manifested itself long ago and has remained steadfast and without interruption. While there have been times where Mr. Blair's violent aggression has been more pronounced, there has remained a consistency with real cause for concern that has not abated. On the contrary, just shortly after his release in 2004 he committed robbery again, with a weapon. Most recently with the predicate offence, he also robbed with a weapon by thrusting his knife repeatedly and in very close proximity to his victim's face and body generally. The violence perpetrated by Mr. Blair has remained pronounced and alarming.

[170] The psychological trauma which has been visited upon several victims was not only apparent from the facts read into court on several of Mr. Blair's sentencings but also addressed in Victim Impact Statements. The physical harm has been documented throughout these reasons. While it was argued by defence counsel during submissions that Mr. Blair never actually used the weapon with direct application of physical force to anybody, I can find no comfort in believing the lack of a physical wound by way of cutting or stabbing with his knife should be cause for relief or optimism that such an occurrence is therefore unlikely should a similar circumstance arise again. I can only wonder more about those situations I have learned about when Mr. Blair brandished his weapon at the store clerk in such close proximity to her body as he held onto her and of course held the knife to the neck of the 13 year old girl. The consequences very easily could have become more harmful.

[171] I can glean nothing from Mr. Blair's history to suggest that the events of his criminal past will not be repeated and that injury will not follow.

[172] I am satisfied this element of the likelihood to cause death or injury or severe psychological damage on other persons has also been proven.

[173] Based on the foregoing, the Crown has proved the elements of s. 753(1)(a) beyond a reasonable doubt. Mr. Blair has most recently been convicted of a personal injury offence. He is a threat to the life, safety or physical and mental well-being of others. There is evidence establishing a pattern of repetitive behaviour showing a failure to restrain his behaviour and a likelihood of causing death or injury to other persons or inflicting severe psychological damage on others through a failure to restrain his behaviour. I would add that I am also satisfied there is also evidence establishing a pattern of persistent aggressive behaviour of which the predicate offence forms part, and shows Mr. Blair has a substantial degree of indifference respecting the reasonably foreseeable consequences of his actions to other persons.

[174] In accordance with s. 753(1) of the Criminal Code of Canada, I must hereby declare Mr. Blair a dangerous offender.

[175] In making this finding, I have not lost sight of the expert evidence I heard in this case that addressed the very issue regarding the dangerous offender designation. The psychiatrists delivered reports which were filed as Exhibits during Phase II of the hearing. In addition, both doctors testified. Both doctors diagnosed Mr. Blair with dysthymia, history of poly-substance abuse and personality disorder with anti-social features. Most notably here, there was common ground between them that recognized Mr. Blair has problems with anger management and impulsivity. Although initially cautious and I dare say it appeared as if almost trying to avoid labelling Mr. Blair as psychopathic, Dr. Chandrasena did agree with Dr. Komer's diagnosis of psychopathy although qualified his answer by stating that psychopathy is not a stand alone diagnosis based on the DSM criteria.

[176] Following a careful analysis of all the documentary evidence and after conducting three hours of interviews with Mr. Blair on three separate days, and drawing on his past dealings with Mr. Blair, Dr. Komer expressed the unqualified opinion that he was a dangerous offender with reference to the language contained in s. 753(1) of the Code.

[177] Dr. Chandrasena, surprisingly failed to address whether or not Mr. Blair was a dangerous offender, either in his report or in his evidence in-chief. When asked in cross-examination for his opinion in that regard, he offered nothing to the court for its consideration about the very issue it had to determine. The doctor had much to say about treatment and therapy. His report and testimony also appeared to be also focused on challenging certain findings and opinions expressed by Dr. Komer in his written report. The challenges were principally focused on what I am satisfied were erroneous assumptions by Dr. Chandrasena that Dr. Komer had concluded Mr. Blair was treatment refractory and that he relied on invalid actuarial tests in reaching his opinions about Mr. Blair.

[178] For reasons which I will address further under the next heading of sentencing, I would say here that I preferred the evidence of Dr. Komer, both written and oral. It was clear he spent a considerable amount of time and effort reviewing the material, meeting with Mr. Blair and turning his mind to the very issues this court had to determine under s. 753 of the Code both in regard to finding and sentencing. His testimony was offered to assist the court as an expert witness. He understood his role and responsibility to provide independent assistance in the form of objective and unbiased opinion. This became very clear to me early on in the doctor's evidence during the voir dire on qualifications when he took the time to explain and help me to understand better actuarial testing and the role they play in the profession of psychology and psychiatry. Dr. Komer indicated the instruments are available as a source of information to assist in assessing risk but they are not determinative. To put this in context he went on to indicate, just like a judge in court, the results are to be considered in order to reach a final conclusion but the information is only part of the equation. Dr. Komer was not at any time trying to impress upon this court that his opinion should conclude the matter. I gathered that his ability to appreciate his role and responsibility to the court was not only something he understood but embraced from his experience as a forensic psychiatrist with knowledge in the area of law and mental health.

[179] In addition to his vast experience addressing fitness, criminal responsibility, treatment and determining risk, Dr. Komer has extensive experience as a psychiatric member of the Ontario Review Board and, as indicated earlier, is a certified forensic psychiatrist. His testimony was open, responsive and brought clarity for me to those areas that I had a limited understanding about. It was clear, not only from a review of his report but also throughout his testimony that he understood Mr. Blair's history from having undertaken a careful review of the extraordinary amount of documentation that was marshalled during the hearing.

[180] I cannot say the same about Dr. Chandrasena's evidence. While it would be fair to say that at times the cross-examination of the doctor was explosive, it was most importantly a purposeful cross-examination that illuminated early on for my benefit that I should receive Dr. Chandrasena's testimony with caution and be guarded as to its reliability. In short order, it became clear that the errors and inconsistency in his testimony should leave me with little choice but to conclude the opinions expressed should give me pause for consideration.

[181] It became clear from the outset of his cross-examination on qualifications, that Dr. Chandrasena wanted to fence with counsel as an effort was made to determine if the doctor held himself out as a forensic psychyatrist, notwithstanding the lack of a designation from the College of Physicians and Surgeons. Counsel simply wanted an answer but the doctor would not oblige.

[182] It also became clear that Dr. Chandrasena had not reviewed the Phase I testimony of the witnesses who brought clarity to the documentary evidence. Dr. Chandrasena also had not even reviewed the robbery video of the predicate offence, a necessary and important step in my opinion that required careful analysis and consideration in order to be able to address some of the elements that required consideration during this hearing. The doctor also testified about having two meetings with Mr. Blair. Reference was made to notes taken by his assistant during both meetings. When it was pointed out to the doctor that his notes made no mention about what was discussed during the second date's meeting two months later, the doctor maintained that he remembered the details about the meeting which had, by the time of his testimony, taken place six months earlier. This is troubling because the doctor was aware Mr. Blair had a history of lying and being manipulative. He acknowledged the importance of subsequent meetings as a necessary step in order to determine the authenticity and response about earlier topics discussed. I was left with the impression from the whole of his testimony that Dr. Chandrasena relied heavily on Mr. Blair's account during the brief interviews he conducted and such reliance was material in formulating his opinion about Mr. Blair's suitability for CBT. This is troubling when there is good reason, based on Mr. Blair's history, to place as little weight as possible on the reliability of his statements.

[183] As indicated earlier, the doctor offered no written or oral expression of opinion in regard to whether he believed Mr. Blair was a dangerous offender. He was asked two or three times in cross-examination if he held an opinion about whether Mr. Blair was in fact a dangerous offender but only repeated his testimony with respect to treatment and opportunities for improvement. When pressed again one final time in an effort to secure an answer to the question, I was left with the impression the doctor simply did not know how to respond to the question. His final answer was only, "I can't answer that."

[184] Finally, while qualified as an expert witness to provide opinion evidence in regard to the diagnosis and treatment of mental health disorders including the assessment of dangerous offenders, it appeared to me that Dr. Chandrasena had limited experience to draw upon in this specific area or realm. The majority of his medico-legal work has been in the area of civil law which involve an entirely different set of considerations. I believe this was the first time he had ever testified about whether a person fits the definition of a dangerous offender and as I indicated earlier, his answers in cross-examination suggested he may not have fully appreciated what that involved.

[185] For these reasons and more that I will have to say as I move to address the issue of sentence, I am not prepared to afford much weight to the opinions expressed by Dr. Chandrasena in this hearing.

8: SENTENCING

[186] Section 753(4) and (4.1) addresses the sentence to be imposed in this case, having found Mr. Blair to be a dangerous offender. The subsections read as follows:

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.

(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.

[187] The issue to be determined is whether there is a reasonable expectation that a lesser sentence, other than an indeterminate period of detention in the penitentiary, will adequately protect the public against the commission of another serious personal injury offence.

[188] It seems to me the lesser sentences contemplated for consideration presuppose their suitability if the court can be satisfied Mr. Blair can eventually be managed in the community.

[189] As a starting point, it is important to recognize from Mr. Blair's history that he has not only been kept in custody until his warrant expiry date in three of his last four penitentiary sentences, but that he has consistently scored as a very high risk to offend as a violent offender based on actuarial testing and reviews conducted by psychologists during the past two decades of incarceration. Nikki Smith, the Regional Manager for Conditional Release Programs with the Parole Board of Canada, testified that only ten per cent of prison inmates are kept until their warranty expiry date. Ken Harper, Probation and Parole Officer, testified that Mr. Blair consistently scored very high on the LSI-R when tested in 2006, 2009 and 2010. Mr. Blair was classified as a high risk intensive supervision offender since the program began in 2004/2005. Only three per cent of the 1,300 to 1,400 people under supervision in that program at the relevant periods of time were classified as high risk intensive supervision offenders.

[190] A careful review of Mr. Blair's history, as documented in detail throughout these reasons, reveals without exception and by his own admission that he is not only a risk to re-offend when released in the community but has consistently demonstrated that he will re-offend and has done so by way of serious personal injury offences. Efforts to rehabilitate and provide Mr. Blair with treatment opportunities have been extensive. Rehabilitation and treatment programming has been made available to Mr. Blair both in and outside of custody. He consistently fell well short of the mark of what was not only expected and required of him but necessary with a view toward rehabilitation. He either failed to participate at all or walked away from programming. While a great deal may be said about Mr. Blair's inability to access programming while in protective custody or segregation, he more often than not found himself with that status either voluntarily by request or because he was the author of his own misfortune because of his conduct which he refused to correct. Often, even when mediation was offered to Mr. Blair in an effort to resolve his segregated status, he refused.

[191] Mr. Blair's history reveals that on those occasions when he requested programming, it was more often than not disingenuous and at times manipulative to secure a transfer for alternative reasons.

[192] Dr. Chandrasena's assertion that Mr. Blair was not given a full opportunity to participate in remedial and therapeutic programs is inaccurate. Dr. Chandrasena opined that the programs offered have not included what Mr. Blair could benefit from, namely psychopharmacology in conjunction with psychotherapy in the form of cognitive behavioural therapy. To that end, I make these observations. Firstly, it would appear that what Dr. Chandrasena is recommending is not available while incarcerated. At least there was no evidence put forward to suggest otherwise. It would appear the treatment being offered by Dr. Chandrasena is only available in the community or at the very least would only be meaningful in the community as that is the environment he needs to learn to function within. Moreover, Dr. Chandrasena is not a trained therapist in cognitive behavioural therapy. As a psychiatrist, he testified he adopts and uses CBT principles but acknowledged he would not consider himself a CBT therapist. He has not authored any publications in relation to psychopathic or anti-social personality disorder and cognitive therapy. Dr. Chandrasena's testimony was mostly focused on his underlying belief that Dr. Komer held the opinion Mr. Blair was treatment refractory which he felt was in error. He, I would say with reasonable certainty, speculated that if Mr. Blair was kept in an institution for "one or two years" and received the treatment he was recommending, Mr. Blair might improve but he could not indicate to the court one way or another or to what extent, if at all. And when pressed in cross-examination if it would be appropriate to treat Mr. Blair in the community, Dr. Chandrasena said not yet as he required a structured environment at this time. Essentially, what the doctor indicated was that if Mr. Blair could get the treatment he recommends while in custody and afterward in the community but did not improve after one or two years, then it would be reasonable to designate him a dangerous offender.

[193] As I indicated, there can be little doubt Mr. Blair was given an opportunity to participate in established rehabilitative and treatment programming, which he so desperately needed but has not received, to the satisfaction of either those who monitored him while in custody and in the community or to the satisfaction of the two expert doctors who testified. Both doctors agreed that people with psychopathy and anti-social personality disorders have a much higher relationship to recidivism, notwithstanding Dr. Chandrasena's recommendation for dealing with Mr. Blair as an individual who was not treatment refractory. Dr. Chandrasena acknowledged, however, that his opinion was premised on Mr. Blair's ability to form meaningful relationships and, surprisingly, appeared to rely at least in part on Mr. Blair's words saying that he was going to change and was capable of developing a relationship with his therapist.

[194] The record is clear that Mr. Blair is not only manipulative but also prone to say what he believes people want to hear. I recall one report referred to him as "Superficially charming". During his cross-examination, Dr. Chandrasena acknowledged this when pressed, stating "We know there is continuous evidence that he does not tell the truth." I could review again the extent to which this could be borne out from the records in this proceeding, but I am satisfied I have addressed this plain fact with sufficient detail from time to time throughout these reasons. However I would add here in furtherance of pointing out there can be little reason for optimism that Mr. Blair will embrace change or is capable of change when one considers that in February 2010 while Mr. Blair was in remand custody waiting for the eventual disposition of his break and enter – dwelling charge, which occurred just five months before the predicate offence, Mr. Blair was informed that the Crown was then considering a dangerous offender application. One would expect that receipt of such information would have served as a clarion call to action for Mr. Blair to fundamentally and immediately take all possible steps to alter his behavior if it were possible. Instead, for two weeks prior to the convenience store robbery, Mr. Blair had not only used crack cocaine on multiple occasions, he said nothing of this to Dr. Berek about this, even though he saw the doctor only two days prior to the robbery and assault.

[195] In my opinion, taking the doctor's opinion at its highest, his recommendation for treatment is based on speculation and hope. He maintained there is a small sub-set of psychopaths who could respond to this recommended form of treatment. It is noteworthy, I suppose, to add here that the proposed treatment would not negate the diagnosis that Mr. Blair is a psychopath. He would still remain one even if successful under the proposed recommended approach to rehabilitation.

[196] The approach for improvement to Mr. Blair's condition is based on a belief that the methodology for treatment is not only available but that Mr. Blair would actually participate in the programming and treatment which would require not only a willingness to attend and cooperate but to develop trusting relationships with his treatment providers. Separate and apart from whether the proposed therapy would even work, the premise for the belief that CBT is even possible for Mr. Blair is misguided having regard to his well documented condition and history.

[197] Counsel for Mr. Blair suggested that the values attributed to his risk assessments may have been unfairly skewed high in later years as a result of his failure to complete sexual offender programming that was not necessarily needed. In and as part of an email exchange in 2007 that arose from an inquiry about Mr. Blair's suitability for a full assessment and treatment for sexual offenders at the Regional Treatment Centre, Dr. Looman from that centre concluded there was no need for Mr. Blair to be referred to the Regional Treatment Centre because he was not a high risk for sexual recidivism.

[198] While Dr. Chandrasena commented initially on the earlier assessment inventories as being problematic, he acknowledged they were not material as they were the product of Mr. Blair not completing or responding to the test questions accurately. More importantly, Dr. Looman stated the following when all this was brought to her attention in 2007, "First of all, you can't influence the results of actuarial tests. Actuarial tests are scored based on historical information and are not subject to influence by the offender." She went on to point out that the concern being raised was actually in regard to personality or attitude questionnaires and the fact that Mr. Blair tried to influence the results she said was unremarkable. It is important to observe that notwithstanding Dr. Looman's opinion that Mr. Blair was a low risk for sexual recidivism because his RRASOR score was low, his STATIC-99 score of five placed him in a moderate/high risk category almost entirely based on the fact that he had a history of violence.

[199] I asked Dr. Komer during the hearing what he thought about the fact that so many years had passed since Mr. Blair offended sexually in the violent way he did in 1993 and whether there was a foreseeable risk of him committing another violent sexual offence. Dr. Komer stated that sexual offenders typically commit offences because of control or a sexual perversion. Consistent with other observations made in the records produced, Dr. Komer pointed out that Mr. Blair continues to lack any insight about why he committed those very serious offences. He has never been able to explain them and has not received the benefit of programming which could have assisted him in that regard. The doctor said that because his history does not suggest any evidence of sexual perversion, in the absence of more, the assaults were likely rooted in domination and control. When asked more specifically if the passage of time might leave one safe to conclude there has been a reduction in his likelihood to re-offend in a similar manner, Dr. Komer said the passage of time in and of itself is not a determining factor. While it can be an indicator of reduced recidivism because the offender has not re-offended in the same way, there is no way to measure this in terms of Mr. Blair because he has not spent a lot of time in the community, predominantly because of his inability to control his impulses and his high risk for conflict. It is noteworthy to my mind that one of Mr. Blair's sexual assault offences, with a weapon, was a progressively violent offence that began as a robbery but in time he felt the need to teach his victim a lesson. The predicate offence before the court began as a robbery which subsequently introduced a knife but Mr. Blair was able to escape with what he wanted.

[200] To say that a serious violent sexual offence is not a reasonable expectation, based on Mr. Blair's unresolved high risk factors for re-offending in a violent manner and his inability to control his impulses, would be cavalier. I have no reason to believe, from the evidence I have heard or reviewed, that the risk to the public can be managed or reduced to any acceptable level through treatment. Mr. Blair has been given ample opportunity to participate in established remedial and therapeutic programs but has failed to improve himself in any measureable way or at all. I accept the opinion of Dr. Komer that there is not a reasonable possibility of eventual control of Mr. Blair's risk in the community and that he remains at a very high risk for having further conflicts with the law which will include a very real risk of serious personal injury to others in the community. Mr. Blair has an anti-social personality disorder with psychopathy and is prone to manipulative and lying behaviour. There is no reason to believe that his behaviour has changed or is likely to improve. In the circumstances, I am satisfied there is no reasonable expectation that a lesser measure by way of sentence fixed or followed by long-term supervision will adequately protect the public against the commission of another serious personal injury offence by Mr. Blair.

[201] Accordingly, Mr. Blair has been found to be a dangerous offender and this court imposes a sentence of detention in a penitentiary for an indeterminate period. As a consequence, I understand from the evidence of Nikki Smith and the legislative provisions which have been reviewed with me, there will be no statutory release date and no warrant expiry date. However, day parole and full parole remain an option for consideration three years prior to the first parole eligibility date which is after seven years following Mr. Blair's arrest and which may be reviewed every two years thereafter. The Parole Board of Canada will determine Mr. Blair's suitability for release should Mr. Blair be entitled to it. Otherwise, he will be supervised for the rest of his life by the Correctional Services of Canada.

Released Orally: September 18, 2015

Gregory A. Campbell

Justice

Appendix 'A'

RECORD OF CONVICTION

Date of Offence	Date of Conviction	Offence	Sentence
January 21, 1986		Break & Enter with intent	3 months secure custody (Y.O.)
February 17, 1988	June 24, 1988	Robbery	12 months custody
December 15, 1987		Possess Property	3 months custody (concurrent)
February 25, 1988	April 20, 1988	Robbery and Disguise with Intent	9 months custody (1 year probation)
May 10, 1988		Breach Probation	2 months custody (consecutive to time serving)
September 16, 1988	September 21, 1988	Theft Under (parole violation)	4 months custody (consecutive to time serving)
January 3, 1989	January 9, 1989	Escape Custody	3 months custody (consecutive to time serving)
January 9, 1989		Theft Over	4 months custody (consecutive)
July 31, 1989		Escape Custody	6 months custody (consecutive to time serving)
August 27, 1990	November 29, 1990	Take Motor Vehicle	3 months custody
October 10, 1990	November 29, 1990	Escape Lawful Custody	1 month custody (consecutive)
November 1, 1990	November 29, 1990	Break & Enter – Dwelling	8 months custody (consecutive)
February 29, 1992	March 11, 1992	Attempt Robbery / Assault	2 years custody (concurrent)
March 26, 1992		i) Break & Enter ii) Possess Property x3 iii) Fail to Attend Court	1 year custody (concurrent to time serving) 1 year (concurrent) 6 months (concurrent)
July 11, 1993	March 18, 1994	i) Sexual Assault with Weapon ii) Robbery	9 years custody 4 years (concurrent)
August 7, 1993	March 18, 1994	i) Sexual Assault with Weapon ii) Robbery	9 years custody 4 years (concurrent)
August 21, 1993	March 18, 1994	Assault Causing Bodily Harm	6 months custody (concurrent)
September 15, 1997	January 21, 1998	Assault Inmate	2 months custody (consecutive to sentence serving)
October 25, 1997	January 21, 1998	Mischief (in custody)	2 months custody (consecutive to assault and time being served)
June 19/July 10, 2003		S. 810.2 Preventative Peace Bond	12 months recognizance in anticipation of release
March 18, 2004	July 8, 2004	Robbery w/ knife	2 years custody 2 years probation
November 24, 2006		i) Attempt Break & Enter with Intent ii) Poss. Instruments	4 months custody (concurrent) 4 months custody (concurrent) (18 months probation)
April 17, 2007		Breach Probation / Recognizance	20 days custody
April 27, 2007		Breach Probation	38 days custody
May 9, 2007	June 18, 2007	Break & Enter and Theft Break & Enter w/ Intent Theft Over Failure Stop/ Police Breach Probation	2 years custody/ 1 year probation
August 31, 2009	October 8, 2009	Mischief	1 day custody (38 days pre-sentence custody) / 2 years probation
October 15, 2009	November 12, 2009	Breach Probation	4 days custody (28 days pre-sentence custody)
November 20, 2009	December 14, 2009	Breach Recognizance	1 day custody (24 days pre-sentence custody)
December 15, 2009		Peace Bond (18 months)
January 4, 2010	January 26, 2010	Utter Threats to Cause Death/Bodily Harm	5 days custody (20 days pre-sentence custody)
February 7, 2010	December 3, 2010	Break & Enter – Dwelling Breach Probation / Recognizance	23 months (4 months custody / 285 days pre-sentence custody) 3 years probation
February 17, 2010	December 3, 2010	i) Breach Probation ii) Breach Probation	4 months custody 4 months custody (concurrent) 3 years probation
July 9, 2011	April 2, 2012	i) Robbery w/ knife ii) Assault w/knife iii) Breach Probation