WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences.

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) Mandatory order on application.

In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence.

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Date: 2016-05-16

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Tyrone Burton

Before: Justice Mara Greene

Reasons for Judgement Released: May 16, 2016

Counsel:

• M. McRae for the Respondent
• C. Langdon for the Applicant

Judgment

M.B. Greene J.:

[1] Application for Dangerous Offender Assessment

[1] This is an application by the Crown for an Order that Mr. Burton be assessed by a psychiatrist to determine if he should be declared a dangerous offender or a long term offender. Counsel for Mr. Burton opposes this application.

The Predicate Offence

[2] Mr. Burton was convicted by Justice Cavion, after a trial, of a number of offences involving two young women, A.O. and V.C. These offences included:

a) Exercising control over V.C. and A.O.;

b) Trafficking in persons, namely V.C. and A.O.;

c) Receiving a material benefit from trafficking in persons namely V.C. and A.O.;

d) Withholding the passports belonging to V.C. and A.O.; and,

e) Obstructing justice

[3] Shortly after finding Mr. Burton guilty, the trial Judge retired and I took carriage of this case to address sentencing. On February 23, 2016, I found that the offence of Human Trafficking, as committed by Mr. Burton, met the criteria of a serious personal injury offence. In reaching this conclusion, I summarized Justice Cavion's finding of fact from the trial as follows:

As noted above, Justice Cavion convicted Mr. Burton of a number of offences including two counts of trafficking in persons (otherwise referred to as human trafficking). In reaching his verdict, Justice Cavion made a number of findings of fact about what took place:

a) In the year prior to meeting Mr. Burton, V.C. and A.O. dabbled in prostitution with a single client;

b) A week before Christmas, 2012, V.C. and A.O. came to Toronto from Kingston to have sex with a different client for money;

c) During the above interaction, V.C. and A.O. drank a lot of alcohol;

d) Upon leaving the hotel where the act of prostitution took place, V.C. and A.O. met Mr. Burton;

e) Both V.C. and A.O. smoked cocaine with Mr. Burton;

f) After this first night, A.O. returned to Kingston but V.C. remained with Mr. Burton and fell in love with him;

g) The following day, A.O. returned to Toronto to be with V.C., who was already under Mr. Burton's control as she had fallen in love with him;

h) The day after A.O.'s arrival, the atmosphere of fear had started. Both A.O and V.C. provided their passports to Mr. Burton, were forced to clean the apartment and were advised that there were rules they had to follow;

i) During the week that followed, A.O. and V.C. worked for Mr. Burton as prostitutes at a number of different hotels;

j) Mr. Burton took all the money earned by both women;

k) Mr. Burton parsed out food, cigarettes and alcohol to the two women at his sole discretion;

l) The women had to call him "daddy" and kiss his ring;

m) The time with Mr. Burton caused V.C. to be physically ill;

n) That Mr. Burton created an atmosphere of fear and control over the women; and,

o) That the exploitation by Mr. Burton ended when a client took both women away from Mr. Burton and then a different client called the police.

In reaching his conclusion that Mr. Burton was guilty of the charge of human trafficking pursuant to section 279.01(1) of the Criminal Code, Justice Cavion wrote:

The question is: Did Mr. Burton exercise control, direction or influence over the movements of [A.O.] and [V.C.] for the purpose of exploiting them. No consent is valid in this charge.

Justice Cavion further held that the word exploitation as defined in section 279.04(1) imports "an issue of threats to safety". Later in his judgment, Justice Cavion wrote:

In section 279.04(1) the word "exploitation" is defined as "engaging in conduct that, in all circumstances, could reasonably be expected to cause the other person to believe that their safety or the safety of a person known to them would be threatened if they failed to provide the…service. Clarification is provided in subparagraph 2) in determining whether an accused exploits another person…the court may consider, among other factors, whether the accused a) used or threatened to use force or another form of coercion; b) used deception.

He further wrote:

In my opinion, Mr. Tyrone Burton's behaviour, by any reasonable criteria adopted, showed his intention to control and did control the two girls with the concomitant element of threats and, additionally, in the case of [V.C.] by his use of deception in permitting her to think he was her boyfriend.

Justice Cavion ultimately concluded that while no overt threats or use of violence was imposed on V.C. and A.O. to originally encourage them to work for him, as V.C. did so out of love and A.O. did so to protect V.C., he found that once under Mr. Burton's control, he "created a context of fear and control over them, it was impossible for them to think they could walk away safely. They had no money, no place to go". He further concluded that "this was an arrangement motivated by fear of unspoken consequences of possible harm".

Prior Criminal History

[4] In 1998, when Mr. Burton was almost 14 years old, he was charged with sexually assaulting a girl who was one year younger than him. He received a seventy day sentence. The synopsis of this offence was filed with the court. The Crown did not file any witness statements from this offence nor did she file the transcript of the guilty plea. The synopsis of this event indicates that Mr. Burton followed a young girl, who was a stranger to him, into a stairwell of a building. He grabbed her breast and vaginal area while trying to kiss her. He then dropped his pants and exposed his genitals to the complainant. She fled and called the police. Mr. Burton pled guilty to the charge of sexual assault. He denies, however, many aspects of the synopsis filed with the court. Mr. Burton told prison officials that he knew the victim of this offence and that the initial sexual contact was consensual. According to Mr. Burton, the sexual assault occurred when Mr. Burton exposed himself after the victim indicated she wanted him to stop.

[5] That same year, Mr. Burton was convicted of breaching an undertaking he had given to police when released on the 1998 sexual assault charge. Again, the Crown merely filed the synopsis of the allegation which states that the victim saw Mr. Burton in her neighbourhood and he followed her. Mr. Burton pled guilty to the breach, but denies that he followed the victim. He maintains that he was merely in the same area as her.

[6] In 2003 and 2004 Mr. Burton was charged and convicted of drug related offences.

In 2004, Mr. Burton was charged with possessing a loaded firearm and other gun related offences. In relation to this latter offence, Mr. Burton was found in possession of a loaded firearm while in public. He was convicted of this offence in May of 2005 and received what was effectively a one year sentence.

[7] In 2005 Mr. Burton was also convicted of a driving related offence.

[8] In September of 2005, Mr. Burton was charged with assault. He pled guilty to this offence in November of 2005 and received a sentence of 52 days jail. In relation to this offence, Mr. Burton attended at the residence of a drug user to assist with the collection of a drug debt. To that end, he wore a shirt with a picture of a gun on it and pointed to his waistband suggesting that he had a weapon.

[9] In December of 2005, Mr. Burton was charged with using counterfeit money and failing to comply with a probation order. He was convicted of these offences in January of 2006.

[10] Approximately six months after being released from custody on the above offences, Mr. Burton was charged with a very serious sexual assault. The offence involved Mr. Burton sexually assaulting a woman while she baby-sat three children aged 6, 3 and 1. Mr. Burton dragged the victim into the washroom of the apartment and forced unprotected vaginal intercourse upon her. All the while, the children were outside of the bathroom banging on the door. Mr. Burton was arrested for this offence and held in custody pending his trial. While awaiting trial, Mr. Burton's girlfriend confined the victim in a basement of a residence. Mr. Burton telephoned from the jail and spoke to the victim through a three way call with another male. While on the telephone Mr. Burton asked if the victim was going to attend court. The other male on the three-way call advised the victim that putting Mr. Burton in jail could get her killed.

[11] Mr. Burton was found guilty of sexual assault and attempting to obstruct justice. He was sentenced to 3 years in custody in addition to his pre-trial custody for the sexual assault and two years consecutive in relation to the offence of attempting to obstruct justice.

[12] In January of 2012, while in custody, Mr. Burton committed the offence of carrying a concealed weapon. A screwdriver that was sharpened on one end with electrical tape around the handle was found in his cell. In October 2012, Mr. Burton was released from custody at the end of his sentence (at warrant expiry). Upon his release, he was placed on an 810.2 recognizance. Within a month, Burton was charged with breaching the recognizance. The following month Mr. Burton was found guilty of the breach and sentenced to 15 days in jail.

[13] The predicate offence took place in late December 2012, two months after his sentence ended for the sexual assault and attempting to obstruct justice charges.

[14] In addition to the above noted criminal convictions, Mr. Burton has also faced a number of disciplinary charges while in custody. The documents filed with the court establish that many of the allegations were not proven beyond a reasonable doubt and a full hearing was never conducted. I therefore place no weight on these unproven allegations. There are, however, a number of misconducts that Mr. Burton either admitted committing or was found guilty of after a hearing. These incidents are as follows:

i) 2005 – asking a staff to bring in contraband;

ii) 2008 – fought with staff after refusing to get dressed and refusing to remove a window covering;

iii) 2008 - possession of contraband – a burning wick and marijuana roach;

iv) November 2009 – possession of contraband – homemade brew (alcohol);

v) February 2010 – possession of a metal rod sharpened at one end;

vi) December 2011 – possession of marijuana;

vii) November 2012 – refusing a direct order to relocate to a different cell;

viii) January 2013 – possession of contraband – a shank;

ix) September 2013 – willfully breaching a regulation;

x) April 2014 – making gross insult/using abusive language to staff;

xi) June 2014 – possession of contraband;

xii) October 2014 – make gross insult to staff;

xiii) October 2014 – tampering with cell door lock;

xiv) November 2014 – possession of contraband;

xv) January 2015 – passing a weapon to another inmate and uttering threat to staff;

xvi) April 2015 – possession of contraband;

xvii) April 2015 – possession of contraband;

xviii) April 2015 – possession of contraband;

xix) October 2015 – falsely activate an alarm and willfully disobey order; and,

xx) January 2016 – possession of contraband - a spoon and pills.

Past Risk Assessments and Psychological Information

[15] A psychological assessment from February 26, 2009 was filed with the court. This assessment took place at the Millhaven Assessment unit. Mr. Burton declined to participate in this assessment due to the fact that he had an outstanding appeal. A risk assessment was nonetheless conducted based solely on his file material. Mr. Burton was assessed as a moderate-high risk to re-offend.

[16] Mr. Burton attended a sexual offender program in Warkwarth Institution between August, 2011 and December 2011. The author of the report that summed up Mr. Burton's progress in this program noted that Mr. Burton attended all program sessions and participated appropriately. It was also noted by the author of the report that Mr. Burton always offered appropriate feed-back to other members of the group and completed all his assignments. During this program many risk factors were noted including hostility towards women, lack of concern for others, impulsivity and sex drive/sex preoccupation. The author of the report noted that Mr. Burton made gains in all his areas of risk. He appeared to have a better understanding of the impact of his behaviour on others as well as a good understanding of empathy. It was also noted that Mr. Burton had become more cognizant of his distorted thinking related to his offending behaviour and was able to replace the distorted thoughts with appropriate thoughts. He was also respectful and cooperative with all female facilitators and staff involved in this program. While Mr. Burton made gains during this program, it was recommended that he participate in a sex offender maintenance program.

[17] Mr. Burton's work sheets from a program he took while in custody were also filed with the court. The work sheets are undated so it is unclear whether or not they relate to the above noted program. These worksheets, however, suggest that Mr. Burton was taking responsibility for his 2007 offences and that he was actively working on identifying his areas of risk and how to address his criminal behaviour.

[18] In the month after the sexual offender program ended, Mr. Burton was charged criminally with carrying a concealed weapon in relation to a sharpened screwdriver found in his cell. Mr. Burton was convicted of this offence.

[19] A psychological report dated June 4, 2012 by Dr. Stirpe was also filed with the court. In this report, Dr. Stirpe noted that Mr. Burton minimized the acts amounting to the sexual assault from 2007 and that he denied that he attempted to obstruct justice by contacting the victim from this offence. It is unclear, however, why Dr. Stirpe formed this opinion as she did not include in her report the foundation for this opinion. Dr. Stirpe further wrote that while Mr. Burton took a sexual offender program, when probed about the program, he appeared to recall very little from this program.

[20] In addition to interviewing Mr. Burton, Dr. Stirpe also conducted some actuarial risk assessment tests. Using the Static-99R, Dr. Stirpe found that Mr. Burton was a high risk to re-offend sexually. Dr. Stirpe wrote in her report that offenders with scores similar to Mr. Burton's score from routine samples have been found to re-offend sexually at a rate of 18% at 5 years. Mr. Burton also scored as having high needs on the Stable 2007 test. Dr. Stirpe wrote in her report that combining these two scores, Mr. Burton poses a very high risk overall. Men with the same risk profile as Mr. Burton have been found to reoffend sexually at a rate of 25.2% over 3 years.

[21] Other prison reports were filed with the court including placement reports and updates for release considerations. In many of the reports filed, Mr. Burton is noted as presenting a risk to re-offend. The authors reference his numerous misconducts in the jails, his lack of insight into his offending behaviour and his general negative view and sexualisation of women.

[22] The Crown also filed a number of raps and letters written by Mr. Burton while in jail. I note at this point, I place very little weight on these items. The Crown had been advised that the majority of the information included in this volume of material was not legible and that the court had concerns that by only being able to read portions of the letters, there was a real risk that the letters would be mis-interpreted. The court asked for a more legible copy of the material, but none was provided. In my view, since I cannot make out much of what is written, I cannot have any confidence that I am drawing a fair conclusion from these documents. I do note, however, that while much of this material was illegible, a consistent theme in these materials is Mr. Burton's lack of respect for women.

Issues in the Case at Bar

[23] The main issue the court must decide on this application is whether an Order should be made for an assessment of Mr Burton to see if he meets the criteria for a dangerous offender or long-term offender designation.

[24] Crown counsel argued that given Mr. Burton's past criminal conduct and his prison records the test is easily met. Counsel for Mr. Burton argued that given the clear difference between the predicate offences and Mr. Burton's past offences and given how well he did in his sexual offender program, the test is not met.

General Legal Principles

[25] Section 751.1(1) states that:

On application by the prosecutor, if the court is of the opinion that there are reasonable grounds to believe that an offender who is convicted of a serious personal injury offence or an offence referred to in paragraph 753.1(2)(a) might be found to be a dangerous offender under section 753 or a long-term offender under 753.1 the court shall, by order in writing, before sentence is imposed, remand the offender, for a period not exceeding 60 days, to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under section 753 or 753.1.

[26] I have already found that Mr. Burton has been convicted of a serious personal injury offence. The only issue that remains then is whether I am of the opinion that Mr. Burton might be found to be a dangerous offender or a long-term offender.

[27] The test for an Order allowing for an assessment of a defendant is very low. In R. v. MacArthur, [1997] O.J. No. 5146 (SCJ), Laforme J. (as he then was) articulated the test for an assessment as follows:

It is my opinion that on an application brought pursuant to s.752.1 the only onus and burden of persuasion on the Crown is to satisfy the court that there are reasonable grounds to believe that the offender might be a dangerous offender. In other words, the question the court must answer is based on the circumstances and evidence, is it a logical conclusion that there is a possibility the offender might be found to be a dangerous offender? Moreover, as the test for an assessment does not involve any finding of fact that the offender is, at this stage, a dangerous offender, the onus on the Crown is not that which is expressed in either the criminal or civil standards of proof. Rather, in my view, it is simply this: is the court satisfied, after weighing and balancing all the relevant considerations, including the evidence, that the offender should be remanded for observations?

[28] In R. v. Fulton, 2006 SKCA 115, 214 C.C.C. (3d) 135 (Sask.C.A.) at paragraph 21, the court held that:

Section 752.1 does not call upon the court to consider whether the offender will probably be found, or is likely to be found, a dangerous or long-term offender. It does no more than call upon the court to consider whether there exist reasonable grounds to believe the offender might be found to be a dangerous or long-term offender; and it does so for no other purpose than that of deciding whether to order an assessment. The word "might" speaks to possibilities: Is the prospect of the offender being found to be a dangerous or long-term offender within the realm of possibility or beyond it?

[29] While these decisions all speak to a very low threshold, it is important to remember that there is a vast difference between a low threshold and no threshold at all. The court is not entitled to order an assessment based on some far fetch and unlikely possibility that the offender will be found to be a dangerous offender. There must still be evidence before the court from which the court can find that there is a real possibility that the defendant will be declared a dangerous offender. Justice Hill stated in R. v. Naess [2005] O.J. No. 936 (S.C.J.) at paragraph 77:

I am I inclined to the view that s. 752.1(1) obliges the court, on the totality of the circumstances, to determine whether reasonable grounds exist, in the sense of a real possibility the accused will be found to be a dangerous offender. As minimal as the standard is, it is something more than simply any possibility or a remote prospect only. The intrusion of the assessment frequently with prolonged custody, and its availability to the Crown in sentencing (s. 752.1(2)), demands nothing less.

[30] In R. v. Vanderwal, 2010 ONSC 265, [2010] O.J. No. 246 (S.C.J.), Roccamo J. noted that the above cases arguably suggest two different standards. One line of authorities indicates that for an assessment to be ordered, the Crown must show that there is a possibility that the offender might be found to be a dangerous offender or a long-term offender. In the second line of authorities, the Crown must show that there is a "real" possibility, or "credibly-based possibility" that the person can be declared a dangerous offender or long-term offender. Despite the different language used in the two lines of authority, Roccamo J. ultimately concluded that there is really no material difference. He stated at paragraph 27:

Despite the different language employed by these courts, I am not convinced that, at the end of the day, there is any material difference in the analysis required of an application judge in this instance. It is universally agreed that the threshold is a low one. It is less than the civil burden of proof and far less than the criminal burden of proof. The language in section 752 requires the court to consider the totality of the record of evidence and information in support of the application to decide whether there are reasonable grounds to believe the offender might, not will, be found a dangerous offender or a long-term offender...

[31] In R. v. Norman, [2014] O.J. No. 3817 (SCJ), Justice Goldstein, in my view, used very helpful language in explaining the delicate balancing a judge must engage in when assessing whether or not to order a psychiatric assessment. He stated at paragraphs 14-15:

14 I agree with Nordheimer J. that the court must exercise a gatekeeper function. The court must always bear in mind that it has a responsibility to safeguard the rights of every individual before it, no matter how brutal the crimes that they have committed. It is particularly important that the court exercise this gatekeeper function when the crime has been a violent one, when the passions of the community are inflamed. I further agree with Nordheimer J. that the court must guard against the possibility that the bar is set so low that any person with a prior violent criminal record could be subject to a dangerous offender or long-term offender application. In this respect, I think that Mr. Shime was correct to point out that a court should not simply say "why not?" when asked to order an assessment.

15 On the other hand, the court also has a critical responsibility to protect citizens. It must be remembered at this point that the offender has been convicted of a predicate violent offence. Although all the rights of an offender under our law apply, the presumption of innocence no longer does. In these circumstances, the gatekeeper function is something of a balancing act.

[32] In my view the cases noted above clearly establish that the cornerstone for determining whether or not an assessment of this type ought to be ordered is grounded on a finding, based on evidence, that there are reasonable grounds to believe that the offender might be found a dangerous offender.

[33] In light of this, the next step is to actually look at the test for determining whether an offender can be designated a dangerous offender. Section 753 of the Criminal Code outlines the legal requirements for a dangerous offender designation:

753. (1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied

(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing

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

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

(iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender's behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; or

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

[34] To summarize, pursuant to section 753 of the Criminal Code, the court must first be satisfied that the defendant has committed a serious personal injury offence. The court must then be satisfied that Mr. Burton poses a threat to the life, safety or physical or mental well-being of other persons. The Criminal Code further states that the threat to life and/or safety of others will be established by evidence of different types of conduct including:

a) A pattern of repetitive behaviour showing failure to restrain one's behaviour;

b) A pattern of aggressive behaviour showing indifference to the consequences; or,

c) Brutal conduct.

In the case at bar, the Crown only relies on the first two routes to a dangerous offender designation.

Section 753(1)(a)(i)

[35] Section 753(1)(a)(i) can be broken down into three components:

a) that the offender has engaged in a pattern of repetitive behaviour that includes the predicate offence

b) that the pattern establishes that the offender has failed to restrain his behaviour in the past; and,

c) that the pattern must show a likelihood of injury or severe psychological damage in the future by the offender's failure to restrain his behaviour.

[36] At this stage of the process, the Crown is not required to prove that a pattern of repetitive behaviour exists. The Crown need only put forward sufficient evidence to support that there is a real possibility that a judge could find that a pattern of repetitive behaviour exists and that this pattern of behaviour establishes that the offender has failed to restrain his behaviour in the past and that this pattern might lead to injury or psychological damage in the future. The question then becomes what constitutes such a pattern of repetitive behaviour in law.

[37] In R. v. Dow, 1999 BCCA 177, [1999] B.C.J. No. 569 (BCCA), the Court of Appeal of British Columbia held that in order to make out a pattern of repetitive behaviour, there must be repetitive behaviour that has a number of significant relevant similarities. While some differences are to be expected, the differences must nonetheless leave the significant relevant elements of the pattern in place. The court stated:

In short, the significance and the relevance of common elements of the pattern must be determined by whether they tend to show first, repetitive behaviour, second, that there has been a failure in each case to restrain the behaviour, and third, that there has been injury to other persons arising from that failure. If any of those three elements is missing, then there may be a pattern but it will not be a relevant pattern. But if all three are present then the essential elements of a relevant pattern are revealed.

I add that it is the very essence of a pattern that there be a number of significant relevant similarities between each example of the pattern that is being considered, but that, at the same time, there may be differences between each example, some of them quite distinctive, so long as the differences leave the key significant relevant elements of the pattern in place…

[38] In R. v. Hogg, 2011 ONCA 840, [2011] O.J. No. 5963 (CA) the court defined a "pattern of repetitive conduct" as follows at paragraph 40:

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. – that the last straw could be a much more 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.

[39] In R. v. Akbar, 2014 ONSC 3700, Garton J. held at paragraph 301 that to constitute a pattern there needs to be something connecting all the offences. Justice Garton stated:

A pattern of behaviour is something more than a mere history of criminal activity. To constitute a pattern, there must be something that connects prior incidents together in a manner that justifies considering them as a whole. Similarity can supply the requisite degree of connections. Generally, the fewer the incidents in the past, the greater their similarity must be to amount to a pattern. Similarity can be found in the types of offences, or in their circumstances: R. v. Smyth, [2007] O.J. No. 1946 (Ont. S.C.J.) at para. 63.

[40] The pattern of repetitive behaviour does not need to be strikingly similar. What is necessary are sufficient similarities between the offending conduct to support the conclusion that the offender will offend in the same way in the future. While the predicate offence need not be strikingly similar to the past offences, the courts have consistently held that the fewer acts included in the pattern, the greater the similarity must be (see R. v. Neve 1999 ABCA 206, [1999] A.J. No. 753 (A.B.C.A.) and R. v. Hogg, supra).

[41] I further note that a pattern of repetitive behaviour does not require that the offences included in the pattern all be the same offence. The court instead has to look at the overall conduct to discern if there are sufficient similarities to be considered a pattern of repetitive conduct. In R. v. Hogg, supra, the predicate offence was an assault with a weapon on a male victim. The three previous offences that formed the pattern of repetitive behaviour were all very similar sexual assaults on women. Despite the different nature of the predicate offence, the Court of Appeal still held that a pattern existed because the motive for the assault on the male victim was sexual gratification with the victim's wife and the victim was interfering with this. The pattern identified by the Court of Appeal was that Mr. Hogg used violence in aid of his own sexual gratification. One of the key conclusions that can be drawn from this decision is that offending conduct that forms the pattern need not be the same to make out a pattern of repetitive conduct as long as there are sufficient similarities to otherwise make out some form of pattern.

Section 753(1)(a)(ii) – Pattern of Persistent Aggressive Behaviour

[42] Pursuant to this provision, the court is required to consider the presence of a persistent pattern of aggression that shows a substantial degree of indifference by the offender.

[43] A persistent pattern of aggression does not require an element of physical force. Instead, the term aggression includes a wide variety of conduct ranging from pushy to actual violence. Moreover, this section does not require the same degree of similarity between the different offences. The focus is on aggressive behaviour and indifference to others as opposed to similarity in behaviour. Having said that, the pattern of aggressive conduct must be more than just repetitive, it must be persistent (see R. v. Neve, supra).

Application to the Case at Bar

Evidentiary Issues

[44] In the case at bar, two evidentiary issues arose. Firstly, what use, if any, can be made of the synopsis filed with the court in relation to the finding of guilty in 1999 for the sexual assault Mr. Burton committed in 1998? Secondly, what use, if any, can be made of the prison reports speaking of Mr. Burton's dangerousness and potential to re-offend where the expertise of the author of these reports is unknown?

(a) The Synopsis from 1998 Sexual Assault

[45] In 1998, when Mr. Burton was in grade nine he sexually assaulted a girl who was one year younger than him. In 1999 Mr. Burton pled guilty to this offence as well as to a charge of failing to comply with an undertaking by communicating with the victim.

[46] The Crown filed the synopsis for these two offences. She did not file any witness statements nor did she provide the court with a copy of the transcript from the finding of guilt. In many cases this may not be of concern because on the plea of guilty the entire contents of the synopsis are admitted. In the case at bar, the problem arises because counsel for Mr. Burton argued that Mr. Burton never admitted the facts as alleged in the synopsis. Moreover, the material from the prison records includes statements from Mr. Burton about this offence that run directly contrary to many of the aggravating facts detailed in the synopsis.

[47] The synopsis of the sexual assault allegation that was filed with the court outlines a spontaneous sexual assault on a stranger, where she was followed into a stairwell, grabbed by Mr. Burton about her breasts and vagina area. Mr. Burton then undid his pants and exposed himself. The victim ran away and Mr. Burton chased after her but was unable to catch up with her. The synopsis in relation to the failing to comply with an undertaking included the allegation that Mr. Burton followed the victim for some distance, until she knocked on someone's door and asked for help.

[48] According to the material from the jail that the Crown filed with the court, Mr. Burton told jail officials that he knew the victim of the sexual assault and that the sexual events of that day started out consensually. Mr. Burton told prison officials that he just "popped off on her and that is where things went bad". In another document, Mr. Burton stated that he "exposed himself to a peer". Counsel for Mr. Burton argued that there is no evidence that Mr. Burton ever admitted the aggravating facts detailed in the sexual assault synopsis. He further argued that while Mr. Burton admitted that he had some form of contact with the victim of the 1998 sexual assault in breach of his undertaking there is no evidence that he was found guilty of the aggravating fact of following her.

[49] The sexual assault finding of guilt from 1999 (offence took place in 1998) forms a key part of the Crown's argument on pattern. The facts, included in the synopsis have many similarities to the sexual assault conviction from 2007. When the aggravating facts are excised and if the court takes into account Mr. Burton's version of events, the differences between the two offences start to outweigh the similarities. In light of this, the facts supporting the 1998 sexual assault are in some respects pivotal in the assessment of the presence or absence of a repetitive pattern.

[50] Crown counsel argued that at this stage of the proceedings, the court is entitled to rely on hearsay and any other evidence that is credible and trustworthy. As such, she argued that the synopsis provides a satisfactory evidentiary basis for the 1998 offence. Defence counsel argued that the synopsis is not sufficiently reliable and as such no weight should be placed on it beyond a finding that Mr. Burton has a prior sexual assault for exposing himself to a girl with whom he was involved.

[51] Justice Code considered the relative reliability of a police synopsis in R. v. P.G. 2013 ONSC 589, [2013] O.J. No. 490(SCJ). I am mindful that in R. v. P.G., Code J. was actually dealing with a dangerous offender application as opposed to the initial assessment phase, but nonetheless, his comments, in my view are still helpful. In addressing the overall reliability of a synopsis Code J. stated at paragraph 32:

32 The second reason for caution is that some of the records are not particularly reliable. In particular, Ms. Simone has fairly conceded that the Crown cannot reliably establish all the facts of the 1993 offences. P.G. pleaded guilty to these offences but there is no transcript of the guilty plea, none of the victims have testified, and the only available documents are four police synopses. It is well known that a police synopsis is prepared at the very early stages of a criminal prosecution and that a fuller appreciation of the facts often emerges later. Furthermore, the facts agreed to or proved on a guilty plea often differ from the police synopsis. For these reasons, the facts set out in the four 1993 synopses may not be completely reliable. See: R. v. L. (J.K.) (2012), 2012 ONCA 245, 290 O.A.C. 207 at paras. 88-94 (Ont. C.A.); R. v. Ziegler, 2012 BCCA 353 at paras 61-2 and 76.

Code J. went on to state at paragraph 34:

I am satisfied that the police synopses are reliable as to the dates of the offences, the ages of the various parties, and the general nature of the offences.

[52] In my view, it flows from Justice Code's judgment that at a dangerous offender hearing, the synopsis of the 1998 sexual assault would not be sufficient to establish any of the sexual assault allegations that are clearly disputed by Mr. Burton. The question is, whether at this early stage, where hearsay is admissible, can this court rely on the synopsis. There are many reasons why this court should be cautious in accepting, even at this early stage, some of the aggravating facts outlined in the synopsis. Firstly, the synopsis is not hearsay. It is double hearsay. The victim's statement was not filed with the court. Instead, the Crown filed a police summary of what he/she understood the victim to have alleged. Secondly, the synopsis includes allegations of a robbery, utter threats and a criminal harassment in addition to the sexual assault and the fail to comply. There were no findings of guilt to these charges which make up many of the aggravating facts included in the synopses. While it is possible that the charges were withdrawn as part of a plea negotiation, it is equally likely that they were withdrawn because those aggravating facts were not admitted. Thirdly, I have evidence that Mr. Burton does not admit the facts as alleged in the synopsis raising the real possibility that Mr. Burton did not admit many of the aggravating facts detailed in the synopsis when he entered his plea of guilty.

[53] Given these frailties, based on the record before me, I am satisfied that I cannot rely on many of the aggravating facts detailed in the synopsis. It is my view, however, that at this stage of the process, I can rely on the synopsis from the 1998 charge to provide me with a general understanding of the nature of the offence for which Mr. Burton was found guilty. It provides some evidence that Mr. Burton committed a sexual assault on a girl one year younger than him in 1998 that involved touching her breast and vagina area and exposing himself to her. I can also find that sometime later he was in the same area as her contrary to his undertaking. I appreciate that Mr. Burton has indicated that the facts supporting his finding of guilt are less aggravating than what I have highlighted above, and this may be true, but I note that Mr. Burton's assertion to prison authorities about the event is equally unreliable. Mr. Burton has a history of denying and minimizing his criminal conduct and his version of events, in my view, does not make a lot of sense. I appreciate that the potential exists that at a full hearing the Crown may not be able to prove any of the details of the 1998 sexual assault and this may create a real barrier to a finding that Mr. Burton is a dangerous offender. At this stage, however, the Crown is not required to prove beyond a reasonable doubt that Mr. Burton is a dangerous offender the test is much lower and as a result, I am satisfied that I can consider the general nature of the sexual assault outlined in the synopsis in deciding whether or not to order an assessment.

(b) The Non-Psychiatric Prison Records

[54] Of less relevance to this proceeding are the prison reports relating to Mr. Burton's placement within the jail and penitentiary and his potential release from prison. Many of these reports are written by prison personnel with unknown expertise. Counsel for Mr. Burton argued that little weight can be attached to these documents. Crown counsel argued that given the low threshold at this stage of the proceedings, all the prison records are sufficiently reliable to merit consideration.

[55] In my view the reports referred to above are best described as opinion pieces about Mr. Burton's risk to re-offend and his attitude towards his criminality. Some of the documents make bald assertions about Mr. Burton while others provide a foundation for the opinion. In my view, where a foundation for the opinion has been provided, then some weight can be placed on this opinion. For example, at times prison staff have written that Mr. Burton's disregard for the rules of the prison make him an increased security risk. They have also written that his continued protestations of innocence led them to conclude that Mr. Burton has no insight into his criminality. I note, however, that the opinion of someone whose area of expertise is unknown about what meaning can be attached to Mr. Burton's behaviour while admissible at this hearing, should be approached with caution. Where, however, there is no foundation provided in the material for the opinion expressed, I place no weight on this opinion.

[56] In my view, however, these reports do little to assist the court on this application. Mr. Burton's constant criminality when in the community, the harm suffered by his victims, and his numerous misconducts while in prison speak for themselves. The more complex issue in this case really is whether there is a pattern of repetitive behaviour.

Section 753(1)(a)(i) Analysis

[57] There is little dispute that Mr. Burton has a long criminal history and that he has spent the majority of his adult life in prison. Mr. Burton's criminal record also establishes that historically he has re-offended in some fashion within a relatively short period of time after his return to the community with the predicate offence taking place within two months of him being released from prison after serving a lengthy sentence for sexual assault. Mr. Burton's record runs almost the full range of possible offences including convictions for driving offences to property offences to offences involving the interference with the administration of justice to weapons offence to violent offences. The record itself provides a basis for the court to have reasonable grounds to conclude that Mr. Burton might re-offend generally. Section 753(1)(a)(i) of the Criminal Code, however, is not meant to capture any offender who runs a high risk of re-offending generally. Instead it is meant to capture only those where the offender's past pattern of conduct is sufficiently similar that one can conclude that the offender will likely re-offend in the same way and that the offending behaviour will cause injury or severe psychological damage to his victims.

[58] In relation to the third prong in the analysis: that the pattern must show a likelihood of death, injury or severe psychological harm to other persons through his failure to restrain his behaviour in the future, the Crown provided very little victim impact information beyond the facts of the offences themselves. On the record before me, the only conclusion I can reach is that the majority of Mr. Burton's offences, while serious, have not led to physical injury of his victims nor have they led to severe psychological harm. Only two of Mr. Burton's previous offences, the 1998 sexual assault and the 2007 sexual assault, in addition to the predicate offences, led to physical harm or severe psychological harm to the victim such that they can be considered as part of the pattern in issue on this application. In my view, given the nature of the 1998 offence – a sexual assault – an inference can be drawn that the victim suffered psychological harm from this event. Moreover, given the facts of the 2007 sexual assault, both physical harm and severe psychological harm can be inferred. In light of this, in my view, the real issue in the case at bar is whether these three offences present a pattern of repetitive behaviour.

[59] The Crown argued that the court should consider not just the above three offences, but also the weapons offences on Mr. Burton's record in assessing whether or not a pattern of repetitive behaviour exists. Respectfully, I disagree. While Mr. Burton has a couple of weapon related offences on his record, there is no suggestion that Mr. Burton used the weapons nor are these offences similar in any way to the predicate offence. I therefore find that the weapons offences are not part of pattern of repetitive behaviour that includes the predicate offences.

[60] While the Crown made some reference to Mr. Burton's weapons offences, her main argument really focused on the predicate offences and the two previous sexual assault offences. The Crown argued that these three offences establish a pattern of Mr. Burton using intimidation, violence, dominance and strength for his own gain (be it financial, personal or sexual). The Crown argued that the following similarities exist between the three offences:

a) all cases involve Mr. Burton using intimidation and threats;

b) three of the cases involve Mr. Burton using intimidation on vulnerable victims;

c) there was an element of confinement in the two sexual assault convictions and in the predicate offence; and,

d) the two sexual offences and the predicate offence involved weapons or the threat of weapons.

[61] The two prior sexual assaults and the present offences, on their face appear to be very different in nature. The predicate offence does not involve a sexual assault by Mr. Burton on his victims. Instead, using intimidation and implied threats, he forced or coerced them into engaging in prostitution. The differences are obvious. The first two offences involved sexual gratification while the most recent offence was for financial gain. Moreover, the level of violence used was very different. In the predicate offence no actual violence was used nor were there any overt threats of violence. The trial Judge found only the presence of implied threats and an atmosphere of oppression. The nature of the harm suffered is also different. While all the offences led to a violation of the victim's sexual integrity, the nature of the violation is very different. Moreover, the physical harm suffered was different. All these differences make for a compelling argument that no pattern exists.

[62] Crown counsel argued that despite these differences, the relevant pattern still exists. To that end she specifically argued that a pattern of repetitive behaviour can still be made out even where the actual offences are different. R. v. Hogg, supra, is a good example of this. The predicate offence was an assault with a weapon while the previous offenses in the pattern were all sexual assaults. The court found that the predicate offence, while it differed in the details of how the offence was carried out it was still part of pattern that made it likely that Mr. Hogg would commit "similar" acts of violence in order to have sexual gratification in the future. I note, however, that in R. v. Hogg there were four offences that formed part of the pattern, three of which were similar in kind as well as in motivation. I highlight this fact because so many of the cases note that where fewer offences form part of the pattern, the similarity between the offences must be greater.

[63] The question I must ultimately decide in the case at bar is whether, despite the differences noted above, the predicate offence is sufficiently similar to the two prior sexual assaults to amount to a pattern of repetitive conduct as contemplated by this provision.

[64] In my view, many of the similarities relied upon by the Crown are not in fact similarities at all. The Crown argued that all three offences involve vulnerable victims. I am unable to completely agree with this characterization of Mr. Burton's victims. I agree that all four victims were vulnerable in the sense than that Mr. Burton was stronger and more powerful than them. I appreciate that the victim from the 1998 sexual assault was a young person which does make her more vulnerable, but Mr. Burton was also a young person at the time and was only one year older. The victim from the 2007 offence, while she clearly suffered tremendously at the hands of Mr. Burton, does not, in my view, meet the general definition of being vulnerable. It is really only the victims from the predicate offence that readily meet the definition of vulnerable. I agree, however that each victim from all three sets of offences had some vulnerability, but this can be said for most victims.

[65] I am also unable to conclude that the offences are all similar because Mr. Burton used a weapon on each occasion. There is no suggestion of a weapon in the 1998 sexual assault charge nor was a weapon used in the predicate offence. While A.O. made some reference to Mr. Burton indicating he had a firearm, she never saw it and her evidence was unclear on whether this comment about a firearm was said for the purpose of intimidating and controlling her. It is important to note that Justice Cavion found that no overt threats or violence was used. I therefore find that this is not a similarity between the three offences.

[66] The Crown also argued that all three offences involved threats of harm if the victim reported the event to the police or if she came to court. In relation to the sexual assault from 1998 while the synopsis makes reference to a threat, Mr. Burton did not plead guilty to this charge and there is no evidence that he was found guilty of uttering a threat. I note, however, that if the Crown could prove this aggravating factor at the dangerous offender hearing, this would be a similarity between the 1998 sexual assault and the 2007 sexual assault. The bigger hurdle is that in the predicate offence, Mr. Burton did not resort to threats (arguably because he did not have to). Instead, he played on V.C.'s emotions and feelings to try and convince her to assist him at trial. I therefore find that this also is not a similarity between the three offences.

[67] The Crown also argued that in each of the three cases the victims were forcibly confined. The facts supporting the 2007 conviction for sexual assault clearly involved a forcible confinement in a locked washroom. The predicate offences also involved some form of confinement as both victims testified that they felt they could not leave the unit without Mr. Burton's permission. Moreover, Justice Cavion found as a fact that Mr. Burton controlled V.C.'s and A.O.'s movements. In relation to the 1998 sexual assault, the synopsis suggests some form of confinement by trapping the victim in the stairwell. It is unknown whether this aggravating fact was admitted. I note that Mr. Burton has denied this aggravating fact. So while there is some form of confinement involved in the two most recent offences, I cannot find on the record before me that the 1998 offence included any kind of confinement.

[68] While I disagree with many of the factors the Crown argues are similar between the three main offences in issue in this application, I do agree there are some similarities between the three offences. All three offences involved the sexual exploitation and sexual violation of a female victim (although the mechanism of exploitation was different in the predicate offence). Moreover, the latter two offences involved some form of confinement and an attempt by Mr. Burton to compel his victims to recant or not attend court (albeit the mechanism with which he did this was very different). This, however, is where the similarity ends. The question then become whether this is enough that a judge might find a pattern of repetitive behaviour as required under s.753(1)(a)(i) such that Mr. Burton might be declared a dangerous or long-term offender.

[69] I am mindful that the standard is low at this stage. The Crown does not have to prove an actual pattern of repetitive behaviour, only that there are reasonable grounds to believe that Mr. Burton might be found to be a dangerous offender. Having said that, if no pattern exists, then Mr. Burton cannot be found to be a dangerous offender. To that end, while the Crown is not required to prove a pattern beyond a reasonable doubt at this stage, given that the presence or absence of a pattern of repetitive behaviour effectively opens or closes the door on the remainder of the analysis, there must be sufficient evidence before the court that at a later hearing, the Crown will be able to establish a pattern of repetitive behaviour before the door is opened for a psychiatric assessment.

[70] When I consider all the evidence, in my view, this is a very close call. The numerous differences between the offences raises real concerns that a pattern of repetitive behaviour does not exist. As noted above, however there are some real similarities that provide reasonable grounds for a judge to conclude that a repetitive pattern of the type contemplated by the section will be found and that Mr. Burton might be found to be a dangerous offender.

[71] I must remember that at this stage, I do not have to conclude definitely that a pattern of repetitive behaviour exists. Instead, I need only have reasonable grounds to believe that Mr. Burton has engaged in a pattern of repetitive behaviour that establishes that Mr. Burton has failed to restrain his behaviour in the past and also shows that there is a likelihood of death, injury, or severe psychological damage to others by his failure to restrain his behaviour in the future. In my view, while the evidence of a repetitive pattern is not overwhelming, I am nonetheless satisfied that there are reasonable grounds to believe that Mr. Burton has engaged in a pattern of repetitive behaviour that shows a failure by Mr. Burton to restrain his behaviour and that this pattern shows that Mr. Burton will likely fail to restrain his behaviour in the future and commit an offence involving the sexual exploitation and sexual violation of a woman in a manner that will likely cause her physical harm or severe psychological damage.

[72] Counsel for Mr. Burton further argued that the psychiatric material filed also fails to establish a likelihood that Mr. Burton will fail to restrain his behaviour in the future. In particular, he points out the success Mr. Burton had in the one sexual offender program he was involved in. I appreciate that there is evidence that Mr. Burton made some real gains while in custody. There is also equally reliable evidence that Mr. Burton remains a real risk to re-offend against women. This evidence comes from Dr. Stirpe's report; from the fact that Mr. Burton committed the predicate offences after taking the sexual offender program and within two months of his release from custody; and, that the predicate offences involved the exploitation of women. In my view, while the report from the sex offender program was positive, when I consider all the evidence I find that there are reasonable grounds to believe that the three prior offences referenced above establish a pattern of sexual exploitation of women for Mr. Burton's personal gain (either sexual or financial) such that a trier of fact could conclude that Mr. Burton will be unable to restrain his behaviour in the future and will likely to commit an offence in the future involving the sexual exploitation and forcible confinement of women in a manner that will lead to either their physical harm or severe psychological damage. I therefore find that the Crown has met her burden and an assessment will be ordered.

Section 753(1)(a)(ii) – Persistent Aggressive Conduct

[73] As noted previously Mr. Burton has a long record for numerous kinds of offences. In addition to the predicate offence, Mr. Burton has numerous convictions that involve aggressive conduct. These include:

i) sexual assault 1998;

ii) assault resist arrest 2004;

iii) assault 2005;

iv) sexual assault 2007;

v) attempt obstruct justice 2007; and the

vi) predicate offence.

[74] Mr. Burton also has a number of findings of guilt while in custody that relate to him being in possession of weapons or being aggressive to staff.

[75] While I appreciate that aggression is broadly defined, it is relevant that the majority of the violence on Mr. Burton's record is on the lower end of the spectrum. In my view, while Mr. Burton's record is clearly troubling and raises real concerns about whether he will generally commit offences upon his release, it does not make out a persistent pattern of aggressive conduct.

[76] I therefore would not allow an assessment on this ground.

Released: May 16, 2016

Signed: Justice Mara Greene