R. v. Gardner

Court Information

Court: Ontario Court of Justice

Citation: 2016 ONCJ 45

Date of Judgment: January 26, 2016

Judge: Justice D. P. Cole

Parties

Crown: Her Majesty the Queen

Counsel for Crown: C. Blondell

Accused: Jason Shawn Gardner

Counsel for Accused: L. Rose

Hearing Dates

• April 2, 2013
• April 14, 15, 16, 17, 2013
• October 6, 9, 2015
• November 23, 30, 2015

REASONS FOR SENTENCE

Overview

[1] Following the offender's pleas of guilty to two counts of aggravated assault, the Crown sought and received the permission of the Attorney General of Ontario to move to have the offender designated as a "Dangerous Offender (Indeterminate)" pursuant to s. 753(4)(a) of the Criminal Code.

[2] The defence resists this application. Counsel first argues that there is insufficient evidence for the court to be satisfied that "a pattern of repetitive behaviour" (Criminal Code s. 753(a)(i)) or that "a pattern of persistent aggressive behaviour" (Criminal Code s. 753(a)(ii)) have been established, and that I should therefore proceed directly to impose appropriate sentences for the two offences to which the offender has pleaded guilty (Criminal Code s. 753(5)(b)).

[3] As this case developed, while still arguing that no adequate "pattern" of offences has been established, counsel shifted positions somewhat, conceding in the first alternative that if I reached the conclusion that a "pattern" exists, I should treat this application as an application to have the offender found to be a Long-Term Offender (LTO), that I should allow the application, and that I should impose a custodial sentence of two years, followed by an LTO designation for a period of five years, all pursuant to s. 753(5)(a) of the Criminal Code.

[4] As more evidence was heard during this hearing, counsel further modified his position, particularly in light of the largely similar expert opinions offered by both psychiatrists. If I conclude that either "pattern" referred to paragraph 2 has been established, counsel now concedes that the offender should be designated as a dangerous offender. However, he argues that a designation of "Dangerous Offender (Determinate)" (Criminal Code s. 753(4)(b)) should be made, rather than imposing the indeterminate sentence proposed by Crown counsel.

The Facts of the Predicate Offences

[5] The offender and the first aggravated assault victim (M.A.), had been involved in an "on again, off again" domestic relationship for some three years prior to the offence date of January 27, 2012. Though this Aboriginal couple appear to have genuinely cared for one another (and apparently still do), it is clear that their relationship was unfortunately characterized by numerous dysfunctional – and often violent - incidents, usually triggered when either or both drank alcohol or imbibed drugs to excess. For example, on June 28, 2011 the offender was charged with assaulting M.A. by waving a knife in her direction during a drunken argument; that charge was withdrawn a few days later, because M.A. indicated that she was not prepared to co-operate with any prosecution. On September 3, 2011 he was again charged with assaulting her while both were intoxicated. He pleaded guilty to this charge before J. C. Moore J. on January 10, 2012. In light of time already spent in pre-trial custody, sentence was suspended and the offender was placed on probation, the main optional conditions of which were that he was not to "own, possess or carry any weapons" and that he could associate with M.A. only with her "prior written revocable consent".

[6] As the offender was leaving the courthouse where he had just been placed on probation, he coincidentally encountered M.A., who – sadly – had just been granted bail at the same courthouse on a prostitution-related charge. She agreed that he could come to her residence to pick up his belongings. He told both psychiatrists who assessed him as part of this dangerous offender proceeding that he had little or nothing to do with M.A. from January 10 onwards until he bumped into her at a public library on January 25, where both had coincidentally gone to take advantage of free computer access.

[7] The police synopsis of the stabbing, which was accepted by the defence in support of his pleas of guilty, describes that on January 27, 2012 the offender went to visit M.A. at her residence, where both drank heavily and argued over several hours. In his drunken stupor he accused her of infidelity and became very aggressive. At first he punched her, but he then grabbed a kitchen knife and stabbed her three times just below her breast. She fled into the eighth floor hallway of the apartment building, screaming for help. The second victim (C.A.) was one of those who had heard her screams and responded. He got into some sort of fracas with Mr. Gardner, who stabbed him once in the chest. Police and ambulance services were called and both victims were immediately taken to hospital.

[8] According to the hospital records filed, M.A.'s "soft tissue" injuries were so superficial that she was discharged from hospital that same evening after her wounds were stitched up. The attending surgeon's note indicates that "[n]o follow up was arranged". I was also told that M.A. later indicated to the police involved in this case that she was not interested in preparing a Victim Impact Statement (VIS). Indeed I have some material before me indicating that M.A. has sent word to the offender through counsel, indicating that she bears no grudge against him, and that she still has feelings for him. Certainly, Mr. Gardner continues to have feelings for M.A.; he told Dr. Gojer that "he regrets what had happened and said that he loved and still loves [her]".

[9] The injury to C.A.'s chest was more serious, necessitating a hospital stay for several days. According to his VIS: "[I] had to undergo a lung surgery…Because of the stabbing I cannot [sic] work for 2 years and have to depend on my family in order to survive". He continues: "Because of what happened, I am always scared to go out alone or even to stay home alone….Even at nights I would get [sic] nightmares and wake up screaming 'help' or 'stop'. Even now I still have nightmares. I am always scared that the accused will come back for me".

[10] Mr. Gardner fled the scene and remained at large until he was arrested for other offences on August 10, 2012, at which time the warrant charging him with these two aggravated assaults came to light. He has been continually in custody since that date.

The Offender's Youth Record

[11] The "CPIC" printout of the offender's criminal record reflects some 20 findings of guilt as a youth, arising out of approximately 11 separate incidents (between 1997 and 2002 or 2003). Unfortunately, the documentation available to me to "flesh out" several of these findings of guilt is sorely lacking. I do not by this statement mean to be critical of either Crown counsel or Det. McCabe; likely because of the effluxion of time, apparently there are no transcripts of court proceedings available. Even if such transcripts could now be obtained, it would have been difficult to do so given that many of the offences committed during this period occurred in Manitoba.

[12] Although both psychiatrists had access to various Ontario Ministry of Children and Youth Services (MCYS) records, portions of those materials appear to relate to findings of guilt not reflected in the CPIC printout. For example, Dr. Gojer's report describes findings of guilt for offences of criminal harassment, uttering threats and fraud on July 15, 1997, arising from incidents said to have happened in March and May of that year. Despite the fact that the offender's behaviour was considered sufficiently serious such that a Pre-Disposition Report was ordered and prepared for the assistance of the sentencing judge, the CPIC printout of the offender's youth record does not contain any reference to any findings of guilt on July 15, 1997, nor do any of these offences appear to be reflected in the printout. As Dr. Klassen neatly puts it: "there is at times information in the MCYS files that references the offending, although it is sometimes hard to link specific references with specific charges or convictions".

[13] Since defence counsel's argument regarding the lack of a "pattern" of offending was principally based on what he argues is an insufficient pattern of violent offending, I was particularly interested to examine youth findings of guilt for assaultive behaviour. The printout of the offender's youth record references four incidents (6 actual findings of guilt) of directly assaultive behaviour. Once again the psychiatrists had "[no] file or official information available". In fact, though there are in the MCYS files synopses that "may" relate to these offences, both psychiatrists were largely forced to rely on what Mr. Gardner could recall about the incidents, most of which appear to have arisen from confrontations with other youths residing in various types of young person or young offender facilities. While it is important to stress that neither psychiatrist detected any evidence of Mr. Gardner continually lying or malingering during their assessments, frankly one would have hoped that fuller court-based information would have been available on these potentially most significant incidents.

[14] Similarly, there are some youth findings of guilt in the CPIC printout that could be indirectly connected with violent behaviour. For example, I note two separate findings of guilt for uttering threats and one for intimidation. Once again, both psychiatrists had to rely on what Mr. Gardner told them about these offences. It would certainly have been helpful to have had a transcript of court proceedings in these matters.

[15] I have devoted considerable thought as to how I should address these deficiencies in the records of previous findings of guilt as a youth. I have taken as my guide the oft-quoted statement of Dickson J. in Marcotte v. Deputy Attorney General of Canada:

"It is unnecessary to emphasize the importance of clarity and certainty when freedom is at stake. No authority is needed for the proposition that if real ambiguities are found, or doubts of substance arise, in the construction and application of a statute affecting the liberty of the subject, then that statute should be applied in such a manner as to favour the person against whom it is sought to be enforced. If one is to be incarcerated, one should at least know that some Act of Parliament requires it in express terms, and not, at most, by implication."

[16] With appropriate modification of this dictum to apply to the case at bar, what I have decided to do is to note the various youth findings of guilt referenced in the CPIC printout as being largely or approximately correct. However, on the record before me I am not sufficiently persuaded of their accuracy and completeness to be comfortable relying on these youth findings of guilt for violent offences to establish part of the "pattern" necessary as a condition precedent under either s.753 (a)(i) or (ii) for the application of the DO/LTO provisions of the Criminal Code.

The Offender's Adult Criminal Record

[17] The CPIC printout lists 34 adult convictions between 2002 and 2010. A further printout of Toronto Police Service "Case Tracking" lists some 5 additional convictions between 2011 and 2012. (Not included in either printout are the predicate offences triggering this hearing). Although I acknowledge the distinction between s. 753(a)(i) and (ii), in that a pattern of repetitive behaviour does not necessarily have to be a pattern of violent behaviour, I note that Crown counsel has - entirely fairly and rightly – principally based this application on the history of repetitive violent offences on the offender's adult record.

[18] As with his youth records, I was particularly interested to examine the facts surrounding the offender's 13 adult convictions for violent offences – a chart of which is appended to these reasons. As I detail these in the next few paragraphs, I should indicate that all but one of the various assaultive offences were disposed of at the same time as other non-violent offences – usually breaches of various types of court orders. Because those are not particularly relevant to the issues to be determined in this application, with one exception I do not intend to refer to them. For the same reason, while I have transcripts and synopses for some separately charged non-violent offences – such as mischief and obstructing justice – I do not intend to refer to them.

[19] Crown counsel was able to obtain transcripts of court proceedings for some of the offences disposed of between 2006 and 2012 as part of the package of materials available for this hearing. However, no transcripts or other formal court records - particularly copies of Informations - were filed in respect of two separate convictions for violent offences in 2005.

[20] The first of these was a February 9, 2005 conviction for assault, where, after noting 14 days of pre-trial custody, a conditional sentence of 6 months was imposed. The Crown's application materials contain a police synopsis relating to this charge. However, I note that this is of no assistance on at least one important point, in that it does not tell me how the Crown elected to proceed. While I presume that, given the facts in the police synopsis, the election would have been to proceed summarily, the apparent reference to a six month conditional sentence in addition to 14 days pre-trial custody might indicate that the Crown elected to proceed by indictment, because of the restriction of a six-month maximum term of custody where the Crown has elected to proceed summarily. Though a decision to proceed summarily is not a total bar to relying on a previous conviction as forming part of a pattern, given Parliament's concern that the dangerous offender regime be limited to cases where an offender's behaviour has escalated to the point where Crown counsel elects to proceed by indictment on the predicate offences, this would have been a helpful piece of information to have (as, for that matter, would have been level of court in which this case was dealt with, and the name of the Judge who imposed the sentence). I shall return to this type of deficiency in the record in the next few paragraphs.

[21] Having said this, in his interviews with the psychiatrists Mr. Gardner largely agreed with the police synopsis for this offence. For this reason I am content to rely on what is in the synopsis, my summary of which is as follows: on July 4, 2004 the offender was in company with his then Aboriginal common-law partner Dee Dee Sutherland. Their turbulent (quite long-term) relationship was consistently marred by arguments and physical violence, usually over his long work hours, and his habit of disappearing for days, weeks or months at a time, leading to her being jealous of his supposed or actual infidelities. On the date where this happened, they were not actually living together, though he was the father of her then four month-old child. They had gone to the Toronto home of his half-sister Maria Inglese to seek her advice about what to do with their relationship. (Ms Inglese later told Dr. Klassen in an email that "[Jason's] long-term relationships were with girls that were abusive and very demanding. Dee Dee used to beat the crap out of him on a regular basis, although she tried to hide it from me I often saw the results when Jason would run over to my house to escape"). Either on the way to, or after some time at Maria's apartment (the psychiatric reports diverge on exactly where the assault happened), the couple argued. He slapped her several times, flicked a cigarette in her direction and threatened to burn her face, dragged her around and held her head down, called her pathetic and told her to shut up. Mr. Gardner told Dr. Klassen that he was "not intoxicated…but may have been hungover". She went out for a walk to clear her head, encountered police officers and told them what had happened.

[22] As has happened so often over the course of his youth and adult criminal career, after being arrested and later released from custody on this charge the offender failed to appear in court, and was not arrested for some months for both the substantive charge of assault and either failing to comply with his recognizance or failing to appear (once again, the psychiatrists' reports differ from what is said on the CPIC printout, as to what breach charge(s) were dealt with at the same time as the assault).

[23] The next violent offence conviction reflected on the CPIC printout is a sentence of 10 months (plus ancillary orders) for robbery imposed on December 12, 2005. Although the summary vs. indictable conundrum described in para. 20 supra does not arise in relation to this offence, once again I do not have any court documentation, no transcript of proceedings on the plea of guilty before Sheppard J., nor even a synopsis. I am reasonably certain from their reports that the psychiatrists at least had available a police synopsis, but they appear to have largely relied on what Mr. Gardner told them about the offence, which was that on November 18, 2003 he and a friend had been drinking; they went to a park where they saw some people they identified as drug dealers. Assuming that these victims were likely to have money on them, they "stole some weed and cash". Mr. Gardner told both psychiatrists that he was under the influence of alcohol, but that the crime was impulsive.

[24] I reiterate what I have previously said. Given that Mr. Gardner is potentially facing an indeterminate sentence, the court should have been provided with at least a transcript of what transpired before Sheppard J. in "Gladue court", so that I could be better able to evaluate exactly what was admitted to in court proceedings, what materials Sheppard J. had before him, and what moved him to impose the sentence he did. Surely if transcripts could be made available for the next series of violent offences I am about to describe, they could have been made available for these convictions registered in 2005. Absent some explanation for the absence of transcript or at least a copy of the Information, this is simply unacceptable, given the potential ramifications of these matters for Mr. Gardner's future.

[25] The first (of three) 2006 convictions for violence formed part of a plea of guilty (following a Crown election to proceed summarily) on January 13, 2006 before Taylor J. One of the offences to which the offender pleaded guilty was a charge of assault (as a lesser included offence to the original robbery charge). According to the agreed statement of facts, the offender and the victim knew one another slightly. They coincidentally met at a bus stop and drank together for a time in a nearby park. The offender suddenly demanded the victim's shoes, and when he refused to comply, punched him twice in the face, and took his coat, some cash, a wallet containing personal identification and a bank card, as well as some other items of clothing. Interestingly, the offence is said to have happened on the same date as the offence of robbery referred to in the previous paragraph, namely November 18, 2003; perhaps that was what motivated counsel to propose a joint submission of 90 days concurrent to the sentence imposed by Sheppard J. a few weeks earlier (plus ancillary orders). Taylor J. acceded to the joint submission.

[26] A few days later (January 26, 2006) Mr. Gardner pleaded guilty before Bigelow J. to a number of summary conviction offences, including assaulting a police officer with intent to resist arrest. The admitted facts were that police went to his residence to arrest him for a breach of a previously imposed bail condition containing a curfew. Mr. Gardner told both psychiatrists that "Dee Dee had called the police on him…and that the charge 'was fucking bullshit'". As he was attempting to explain this to the officers, the officers were very violent with him, so he fought back, kicking one officer in the shins and pushing the other officer to the ground. Sadly, he also told Dr. Klassen that one of the reasons he fought with the officers was that he objected to them "us[ing] OC spray on his [younger] sister [Terra], as she was "prostituting herself then and was very addicted". Bigelow J. acceded to the joint submission and imposed a sentence of 90 days to be served concurrent to the sentence previously imposed by Sheppard J.

[27] A few days after this (February 2, 2006) Mr. Gardner appeared before Hogg J. with the intention of pleading guilty, inter alia, to an October 9, 2005 charge of assaulting Ms Sutherland. I say apparently, because I note from the transcript that the offender was never formally arraigned on the various charges to which he entered pleas of guilty. From what I can tell, it appears that Hogg J. incorrectly assumed that the offender had already entered pleas of guilty before him at an earlier point in time. When counsel told Hogg J. that although Mr. Gardner had appeared before him some months ago on these same charges, he had not actually entered pleas of guilty, Hogg J. asked counsel if the offender was "aware of the charges". When counsel indicated that his client was aware, Hogg J. said "He waives, naturally, the reading of those charges", at which point defence counsel said that his client did waive the reading of the assault charge. Crown counsel then indicated that she elected to proceed by indictment.

[28] When I first read this transcript I had some doubts as to whether the formal arraignment of an accused person can ever be waived. Having now read the Ontario Court of Appeal decision in R. v. Mitchell, I am satisfied that any deficiency in the process regarding this offender can be said to have been cured because no prejudice can be shown to have adversely affected Mr. Gardner. Mr. Rose, who was counsel before Hogg J. and is counsel now before me, both acquiesced in what Hogg J. proposed, and he has not raised this issue before me. With some reluctance, I shall consider this assault conviction in relation to the offender's "pattern" of offending.

[29] The admitted facts in relation to the assault charge were that on October 9, 2005 the offender and Ms Sutherland had gone out drinking together for the evening (despite the fact that he was on a probation order that limited his contact with her if he had been drinking), as well as ingesting "ecstacy" and cannabis. They returned to her residence and went to bed, at which time he told her of his desire to have sexual relations with a number of other women. She "voiced her displeasure at this revelation". He began to punch her about the face repeatedly, to the point where she was bleeding. He then ordered her to remain in bed and sleep with him. According to the agreed statement of facts he told her to "piss on the bed" rather than getting up to go to the bathroom. When he fell asleep she left the apartment and called the police, who could not locate him for some months. Though Mr. Gardner instructed Mr. Rose to admit those facts as part of the plea, he later told Dr. Klassen that denied having conversation about his desire for sex with other women, that he was not physically controlling of Dee Dee, and that "in fact, she grabbed him when he tried to leave". However, he also told Dr. Klassen that "he could recall nothing until waking up in jail" many months later, and he told Dr. Gojer that "he does not recall the assault…but admitted that his drinking was out of control at times".

[30] After commenting that Mr. Gardner's "conduct is an absolute atrocity…[T]his sounds to me like the penitentiary….This man is a violent criminal", Hogg J. reminded himself that he had previously told counsel that he would adopt a joint submission for 10 months concurrent to the sentence imposed by Sheppard J. "[I]f my mind had been refreshed before I [committed myself to adopting the joint submission], I would have sentenced him to the penitentiary without a blink of an eye….Let me advise you [of] this Mr. Gardner, if you are back…you will be in jail for at least the penitentiary".

[31] Though the materials given to the psychiatrists appear to reference at least one other offence of violence – an assault on his sister on October 10, 2005 – according to the CPIC printout, no convictions for violent offences were registered until September 17, 2008, when he pleaded guilty to assaulting his mother-in-law. Unfortunately, while I have a transcript of Lebel J.'s reasons for sentence on that date, I have no transcript or other documentation describing the facts of the assault for which Lebel J. imposed sentence. Distressingly, I do not even have an offence date, which might assist me to more accurately place this offence along the continuum of Mr. Gardner's offending.

[32] It is obvious that both psychiatrists were also troubled by the lack of file information available to them respecting this offence. Dr. Klassen commented: "File information indicates that Mr. Gardner assaulted his mother-in-law but there's no other clear information given". Dr. Gojer had read Justice Lebel's reasons for sentence, but noted that it contained "[n]o details about the offence". Once again both mental health professionals were forced to rely on Mr. Gardner to tell them about the offence. The offender said that the victim was Dee Dee's mother Lizzie. She and Dee Dee and Mr. Gardner were consuming alcohol and Oxycontin at their residence in North Bay. When Mr. Gardner found out that Dee Dee had pawned some of their possessions to obtain the drugs and alcohol, he argued with her and broke her phone in anger. Lizzie responded to this by attacking him, so he struck her back, for which he was charged.

[33] After obtaining a pre-sentence report that attempted to address "Gladue issues", Lebel J. sentenced the offender to six months for the assault (and to lesser custodial sentences for various breaches of court orders disposed of at the same time). At one point he said in his reasons for sentence something that assists me in understanding the severity of the assault:

"…your mother-in-law isn't afraid of you, and she even says in the pre-sentence report that she does not really remember what happened that night, so your plea of guilt is quite meaningful and it is certainly an expression of remorse from my perspective".

[34] The next offence of violence (in chronological order of disposition of the charge) arose out of an incident occurring on November 1, 2006, which was not disposed of until May 8, 2009 before Omatsu J. The facts agreed to were that at approximately 0200, together with a co-accused, Mr. Gardner impulsively climbed into the cab of a recycling truck which was stopped at a traffic light, with the intention of stealing it and going for a joyride. The driver fended them both off with a shovel, at which point the offender punched the driver once in the head. The driver notified police and the two accused were arrested nearby. The driver was not injured. In his interview with Dr. Klassen, Mr. Gardner recalled that he and his co-accused had been drinking all evening, first at his father's home, then at a bar, and then at an "all you can drink for $20" party. Though he did not recall punching the driver, he told Dr. Klassen that this was an impulsive prank.

[35] By the time the matter came on before Omatsu J. the Native Court Worker had developed a Plan of Care whereby the offender was to enter immediately into the Na-Me-Res residence, where he would receive various forms of alcohol abuse counselling in this "dry" residence. For this reason, Omatsu J. imposed a conditional sentence of six months subject to fairly stringent conditions.

[36] The transcript of a plea and sentencing hearing before Sheppard J. on May 29, 2009 on several charges shows that the admitted facts were that some two weeks after having been granted the conditional sentence referred to in the previous paragraph, while very intoxicated the offender smashed the lobby door of an apartment building, went to the third floor where – apparently randomly – he knocked on various apartment doors, demanding that occupants provide him with alcohol or he would break down their entrance doors. When he was arrested and taken directly to hospital to obtain treatment for his lacerated hands, he "head butted" one of the police officers, leading to a charge of assaulting a police officer in addition to charges of break and enter and mischief. Noting that the offender would still have to appear before Omatsu J. to deal with an allegation of breach of his conditional sentence, Sheppard J. imposed concurrent sentence of sixty days custody.

[37] Both psychiatrists seem to have access to a police synopsis, but none was contained in any of the materials filed. He told both psychiatrists that he was very drunk, and that he had initially gone into the apartment building because he (wrongly) thought he knew someone who lived there. He told Dr. Klassen (and Judge Sheppard) that his reason for assaulting the officer was because officers would not let him use a washroom while waiting for emergency treatment at the hospital.

[38] By far the most serious violent offence committed prior to the predicate offences occurred in the medical range at the Don Jail. On November 5, 2009 the offender was admitted to the jail (perhaps for a drug offence) while under the influence of both drugs and alcohol. For this reason he was placed in the medical range to assist him to "be brought down from his addiction". After six days there, he got into a fracas with another prisoner on that range. The offender punched him numerous times, causing the victim to lose consciousness. Unfortunately, the victim suffered an "acquired brain injury" which will require him to reside in an assisted care facility, likely for the rest of his life. Because of anticipated difficulties for the Crown in finding co-operative witnesses, a joint submission was offered at a judicial pre-trial. Greene J., who had presided over the judicial pre-trial, indicated that "though this [i]s at the very low end of sentences…for this callous, senseless act", nevertheless, given the Crown's anticipated difficulties in proving the case, she acceded to the joint submission, and imposed six months of further custody (plus probation) on top of 6 months pre-trial custody, credited at a 2:1 rate.

[39] Mr. Gardner told Dr. Klassen that "he felt terrible…that he had no intention to injure the inmate in such a fashion". He told both psychiatrists that because it was a prison environment, he "felt he had to stand his ground…when insulted".

[40] For purposes of maintaining the chronology, I should indicate that the 2012 charges and convictions regarding M.A. prior to the predicate offences are those already mentioned in paragraph 5, supra, and the facts of the predicate offences are found in paras. 6-10, supra.

[41] When Mr. Gardner came to the attention of the police on August 10, 2012 (at which time the arrest warrant for the charges for the predicate offences was executed), he was seen to be jaywalking across a busy downtown Toronto street, obviously in an intoxicated condition. During the course of being arrested for being intoxicated in a public place, he tried to pull away from the arresting officers. P.C. Kolankowski, who testified at this hearing, said that as he tried to put handcuffs on the offender, Mr. Gardner elbowed and then punched him in the cheek. This resulted in a charge of assault police, which, combined with a charge of obstructing a peace officer (providing a false name to P.C. Kolankowski) resulted in concurrent sentences of six months custody being imposed by B. Brown J. on February 6, 2013. (I realize that there is some controversy in the case law as to whether a sentencing judge can consider offences subsequent in time to the predicate offence(s) for which a DO/LTO application has been launched. Because, as will be seen in the next section I have come to the conclusion that there is ample evidence of a pattern even without this incident, I refer to it only because, as will be discussed in para. 119, infra, the service of the six month sentence serves to reduce the number of days of pre-sentence custody available to be credited against the "global sentence" I will impose).

Is There Evidence of a Pattern of Offending?

[42] Defence counsel's submission on this issue was limited to a comparison of the facts between the aggravated assault on the Don Jail prisoner and the aggravated assaults committed on M.A. and C.A. He argued that because these offences were committed in such radically different circumstances - custody v. not being in custody; alcohol being directly involved in the predicate offences v. (presumably) no direct use of alcohol in the jail environment; spontaneously responding to "an insult" in a custodial environment v. arguing in an ongoing domestic relationship – they could not amount to a pattern within either s. 753(1)(a)(i) or (ii).

[43] With respect – and I fully realize that defence counsel must marshal such arguments as he can on behalf of his client – this argument has absolutely no merit. Not only are those distinctions completely insubstantial, they simply ignore his numerous other adult convictions for violent offences. Furthermore, if anything, Mr. Gardner's pattern of violence appears to be escalating somewhat in severity and frequency, as several of the judges who have sentenced him in recent years have noted. In a word, this argument completely offends common sense.

[44] If any authority is needed to establish that a pattern of offending and offences has been made out here, I would refer to the decision of the Supreme Court of Canada in R. v. C. (S.A.). Though that case technically turned on the application of a section of the YCJA where the English and French texts had different meanings, it is obvious that, writing for the court Deschamps J. intended to address the issue more broadly, concluding that:

"In providing that the sentencing court must look for a pattern, Parliament instructs the court to identify past behaviour that will give indications of regular or escalating behaviour. The type of behaviour the court is called on to identify is one of criminality, not the repetition of a specific offence, hence the use of the expressions "findings of guilt" in English and "déclarations de culpabilité" in French. However, the word "pattern" does not specify a threshold number. Also, while similarity is not a requirement, it may be relevant to identifying a pattern of criminal behaviour. For example, if, before committing a sexual assault, a young person had already been convicted twice for other sexual assaults, the court might find a pattern in the prior findings of guilt. If, however, the record consists of disparate offences, such as theft and breach of an undertaking, two convictions may be insufficient to permit the identification of a mode of offending behaviour. Therefore, unless the sentencing court finds that the offences are so similar that a pattern of findings of guilt can be found in only two prior convictions, the threshold for demonstrating a "pattern" of findings of guilt is at least three prior convictions."

[45] If that logic is not sufficient to address counsel's argument about the lack of a pattern, I believe that the recent decision of the Saskatchewan Court of Appeal in R. v. Knife, a case provided to me by Crown counsel, adequately addresses defence counsel's argument. In that case the trial judge had refused to designate the Aboriginal offender to be a dangerous offender following his conviction for aggravated assault arising from a stabbing of another penitentiary prisoner. One basis for refusing to make the designation was because he felt unable to find a "requisite pattern" of similar violence in the offender's accumulation of numerous findings of guilt for violent offences going back as far as age 12. Thus, the trial judge was only prepared to consider the offender's single prior adult conviction – that being the manslaughter conviction that had resulted in him being in penitentiary in the first place. The Court of Appeal held that the trial judge had erred on this point. After quoting several well-known decisions on point from appeal courts all across the country, Lane J.A. summarized:

"…the purpose of the "pattern" requirement is to determine whether there is an evidentiary basis capable of supporting a finding the offender is likely to continue to violently offend in the future as per ss. 753(1)(a)(i) or (ii), and is thus a person from whom the public must be protected. Factual similarities in the contexts of the offender's previous offences are relevant, but similarities in the actual violence used cannot be ignored. The lack of contextual similarities is not fatal to the existence of a pattern if there are sufficient similarities in the elements of the offender's violent behaviour to show a failure to restrain that behaviour and a likelihood of causing death or injury in the future."

[46] More salient to counsel's argument in the case at bar was the Court of Appeal's reversal of the trial judge's ruling that the manslaughter conviction and the aggravated assault conviction were so dissimilar that no pattern could be discerned. The trial judge held that the manslaughter conviction was "the product of a drunken argument which resulted in Mr. Knife stabbing two people (and killing one), while the predicate offence was the product of Mr. Knife's gang lifestyle". The Court of Appeal held that this too was an error, in that the trial judge had looked too narrowly at the two adult offences committed by Mr. Knife:

"…the sentencing judge did err by requiring too high a degree of factual similarity between the circumstances of the offences….He did not assess whether there was…similarity in the violent behaviour to allow him to conclude that such behaviour is likely to continue in the future and is likely to cause death or harm to others."

[47] It flows from this that even if I discount Mr. Gardner's youth offences (for the reasons mentioned in paragraphs 13-16 supra), and even if I largely ignore those adult offences not involving violence, I am entirely satisfied that there is ample evidence of patterns of behaviour that could fulfil the requirements of both s. 753(1)(a)(i) and (ii).

The Background of the Offender

[48] In addition to the offender's description of his background provided to Drs. Klassen and Gojer, I have been greatly assisted in this case by a considerable volume of documentary evidence. The first consists of two pre-sentence reports prepared by Kerry Westfall, a very experienced adult probation officer who has tried to supervise Mr. Gardner at times when he has been in Toronto. Mr. Westfall also testified at this hearing. Despite Mr. Gardner's very poor reporting habits – "minimal but not wilful…it (just) wasn't a priority for him" – Mr. Westfall believes that the offender's desire to address his problems with alcohol is genuine, and he reported that that they had spoken many times about this. At one point Mr. Gardner had expressed interest in attending an inpatient program in Hamilton. Mr. Westfall explained that access to inpatient alcohol treatment programs that have a significant counselling/treatment component is difficult to arrange for a person as transient as Mr. Gardner – "we lack the resources in probation to get him inpatient treatment…no appointment was available for three months". He went on: "Mr. Gardner is very aware of what alcohol has done to his life, "but he can't seem to get there [to address his addiction in a substantial way]".

[49] Mr. Westfall also said in his reports and his testimony that in his opinion Mr. Gardner requires intensive counseling to assist him in processing "family of origin" issues. This theme was thoroughly canvassed in a Gladue Report some 61 pages long prepared for this hearing. This very comprehensive and helpful document makes for hard reading, because unfortunately it so forcefully mirrors the kind of searing fact patterns so eloquently and painfully described in the recent Truth and Reconciliation Commission Report (2015) regarding the sequelae for subsequent generations of parental placement in residential school settings. I shall highlight some of the major findings of the Gladue Report.

[50] Mr. Gardner's Aboriginal ancestry comes from both his maternal and paternal lines. Despite his father's unwillingness to co-operate with the Gladue assessment, his mother Virginia Gardner (nee King; now Allen) reported that she was aware that the paternal grandmother Linda Charlebois was a residential school survivor. (Neither she nor, apparently, Jason's father, had ever met the paternal grandfather, so it is not known if he attended a residential school). Ms Allen was uncertain whether her parents attended residential schools, but she is certain that three of her siblings did.

[51] Ms Allen recalled that she was born and spent the first few years of her life in the very remote Pikangikum First Nation Territory (FNT) in North Eastern Ontario – a community later profiled in a national magazine in 2012 as apparently having the highest suicide rate in the world. Her father worked in a local mine, where he had his legs crushed in a cave-in, resulting in him spending months in hospital and leaving him with permanent injuries. Because of poverty her mother was then forced to work as a camp cook, taking her away from her children for up to 13 weeks at a time. She died when Ms Allen was 3. As a result, Ms Allen was first placed with her maternal aunt, who was soon pressured by local child protection workers "to sign papers that would allow them to apprehend me". She was "scooped" by the CAS in 1966: "I was bounced around CAS from three to seven. I had no idea what was going on. Most of these places were temporary. I always asked if I could go home now". At age 7 she was adopted by a non-native family (named Gardner) who lived in Mississauga (or perhaps in Orangeville; the various records mention both). Unfortunately, as was – and likely still is - so often the case with adoptions "out" of the Aboriginal communities, this adoption was quite unsuccessful. Ms Allen left her adoptive parents' home at age 13. She told the writer:

"[I] bounced around a couple of high schools". Virginia mainly lived in Toronto during this period. She was candid about having been addicted to drugs and alcohol for a period of approximately five years and notes: "I quit [alcohol] when I was 17. I quit drugs when I was 16 – no 14". Virginia explained her substance abuse was prompted by an assault while she was incapacitated but does not have a clear recollection of: "I was covered in bruises from head to toe". Virginia was asked if she reported to police: "I was too scared".

[52] Ms Allen became pregnant with her first child Christopher (Sasha) at age 15. She asked her adoptive parents to adopt him, which they did on condition that "[I] call him my brother. I accepted it. It's a mix of good and bad. They weren't really good to me and I doubt they were good to him".

[53] Two years later Ms Allen, then age 18, had her second child Maria (whose father was Joe Inglese). Though she wanted to raise Maria herself, eventually she turned over custody to the child's paternal grandmother. As Ms Inglese has participated extensively as a witness and observer at this hearing, I shall return to her involvement in Mr. Gardner's life later in this narrative.

[54] Jason Gardner was born about a year later (October 23, 1984). His mother told both psychiatrists who assessed the offender that, while she has had problems with alcohol throughout her life, she did not drink while she was pregnant with Jason. However, both before and after his birth his parent's relationship was in turmoil. Weechi-it-te-win Family Services, the organization that would become Jason's legal guardian early in his life, reported:

"For the first year of his life, his parents, Virginia Allen and Marcel Charlebois resided together but their relationship involved alcohol and family violence."

Thus, I do not know whether to accept at face value Ms Allen's positive assertion that she did not drink during this pregnancy. What I can say is that, as will be seen later in these reasons, Mr. Gardner was administered a comprehensive battery of psychological tests as part of the assessment conducted for this case. Dr. Kalia, the psychologist who administered this battery, found no evidence of cognitive impairment. (Nor, for that matter, did any other correctional professional who assessed Mr. Gardner at earlier stages). Thus, even if Ms Allen did drink during her pregnancy, thankfully it did not affect her son cognitively – though of course, as described in the next few paragraphs, the conflictual relationship between Ms Allen and Mr. Charlebois, itself largely fuelled by alcohol abuse, no doubt significantly affected her son's emotional development from a very early age.

[55] Ms Allen reported to Ms Bolton that a considerable amount of this conflict arose from the fact that she became pregnant with Jason's sister Terra, who was born approximately 20 months later: "He said he was going to beat the baby out of me". She estimated that she and Mr. Charlebois were together as a couple "less than a year". However, Mr. Charlebois continued as a presence in her life: "I was [living in Toronto] waiting for native housing, at the time. Marcel would break into my [tiny one bedroom] apartment. He'd be passed out on the floor. He started going drinking and doing drugs. I didn't know what he was doing at the time. Because of Marcel breaking into my apartment all the time, I moved to Thunder Bay".

[56] Virginia then established what eventually became a marriage with Ron Allen, whom she met in Thunder Bay. When their initial relationship ended after about a year she decided to move back to Toronto with Jason and Terra.

[57] (It is convenient at this point to interrupt the narrative briefly to point out that Virginia (now Virginia Allen) and Ron Allen reconciled and married in 1988, whereupon they moved to the Red Gut First Nation where he is a member. Their first child Landon was born in 1989, followed by Cameron in 1991. Even though Mr. and Mrs. Allen are now divorced, all four continue to live in Red Gut, an isolated community of some 130 members approximately 40 km. from Fort Frances. As will be seen later in these reasons all four testified on this hearing; depending on what happens as a result of this hearing, all offered support for the offender should he choose to relocate to this community).

[58] Through Jason and Terra's father, Marcel Charlebois, Ms Allen asked his mother Linda and stepfather Louis, who lived in Penetanguishene, to look after Jason and Terra "temporarily" while she completed her proposed move to Toronto and made arrangements for housing for herself and her children. Unfortunately, she discovered not only that she was unexpectedly pregnant, but more important that she had a partially detached placenta; her doctor placed her on strict bed rest for much of the remainder of her pregnancy. When she told Marcel Charlebois of this development, according to her version: "Three months later, he served me with papers [seeking custody of the children]. I couldn't even go to the court date. He [had] promised that he wouldn't take them". Jason was about four years of age at this time.

[59] Ms Bolton questioned Ms Allen about her recollections of Jason's rather chaotic early years while he was still living with her. Not surprisingly she reported: "Three and a half years together – his first four years….He had major temper tantrums".

[60] Because Mr. Charlebois recognized that his alcohol consumption was such that he would not be able to look after the children adequately, "he felt the youth's need[s] could best be met with his [paternal] grandmother", so from ages 4-12 (approximately) Jason and Terra lived in Penetanguishene (and later Midland) with Linda Charlebois, stepfather Louis Charlebois, and Jason's aunt (Marcel's half-sister).

[61] According to the offender – and he has remained quite consistent in his recollections to various officials and therapists – his grandparents were heavy drinkers who frequently resorted to physical discipline throughout the years he lived with them. He reported to Ms Bolton:

"It felt like I was more in a prison than a home.

CAS was pressuring my grandparents. They would be so nice to me, when CAS came – the way it was supposed to be. Once the CAS was gone, back to slapping.

He [Louis] pushed me once, when I was 12. He pushed me to the ground. I lashed out. She [Linda] was hitting me, hitting me, hitting me. I punched her in the leg. She hit me in the leg so I hit her again. She made me sit there, and walked by, and kept hitting me. No kid should have to go through that."

In response to Ms Bolton's question as to whether they showed him any affection, he replied:

"Yeah, when they were drunk".

In a letter to Mr. Westfall, appended to the Stand Down Pre-Sentence Report, Ms Inglese writes:

"Imagine how terrifying [it] would be for someone…to be put into the darkness of the dank basement as an infant and young child, by his paternal grandparents, while they partied and had drunken terror fests upstairs. I know he used to dread them opening the door at all, even though [he and his sister] were scared of the dark, because they didn't know who it would be or what they would want".

Regarding the years spent with his grandparents the offender told Dr. Gojer:

"A paternal aunt also lived in the same house as the grandparents. He recalls being unloved, and abused physically, emotionally, verbally and sexually. When Terra started being subjected to the same treatment, he would redirect the attention of his grandparents or aunt to him and he would take the beatings instead.

He recalls that his grandparents and aunt would hit them for trivial causes or for no reason at all. They were also very restrictive and did not allow him or his sister to leave the house. He also recalls them being very emotionally abusive and degrading, and would call them "stupid" and "ugly". They were frequently yelled at for no reason or would have things thrown at them. He recalls being locked in a dark room as punishment. His grandmother and his aunt would constantly slap and hit him in the head leaving him feeling dazed and seeing stars from some of the blows.

He recalls being chronically depressed as a child. He was frightened of his grandparents and hated them. He felt abandoned by both parents and felt that he did not belong to the world. He often thought that he would be better off dead. He recalls crying and being beaten more for crying….Even talking about [his childhood] during these interviews brings up negative emotions and he feels frustrated as he cannot control them".

[62] The school environment in both Midland and Penetanguishene was not welcoming. Mr. Gardner told Ms Bolton:

"[At age 6] they put me in a class like Special Ed, I guess. It was for kids that were wilding out – you know, violent. I kept getting into fights. The school was in a white town and kids would make fun of me. One time I got beat up. There were four or five of them.

Every year, I started fighting. I learned how to fight pretty good after grade four. After grade four, I didn't really fight too much. I still had anger issues. It came from living with my fucking grandparents. My grandmother was violent. She would smack me around for nothing. She would stand over me – slap me repeatedly. It was pretty bad."

[63] In discussing his elementary school experience, Mr. Gardner told Dr. Gojer that:

"He recalls having a poor sense of who he was. He knew he was aboriginal but would feel ashamed to be aboriginal. He felt that he did not belong anywhere. He recalls being taunted in school about being aboriginal and this left him feeling low in self-esteem and bad to be considered aboriginal."

[64] Virginia Allen made several applications to the courts to regain custody of Jason and Terra. She was unsuccessful, but she was granted access to them for the summer months. Starting when Jason was about seven years old, he and his sister would go to the Red Gut First Nation for about six weeks each summer. Sadly, Ms Allen told Ms Bolton that these visits were difficult for Jason, apparently because other children picked on them for being "urban":

"The other kids, who harassed them, were pretty mean to him and Terra. One kid kicked Jason in the stomach – kicked him off his bike. He [the other child] was zooming by. He [Jason] grabbed a bar, waited for the kid to come by – and gave him 16 stitches. On the rez – these were kids that were children of Residential School Survivors".

[65] Jason spoke of a similar incident while visiting his mother:

"I did something wrong. I did something bad. I hit one of my cousins with a bar. I was beat up by a lot of half cousins. They said 'you're not from here'."

[66] Maria Inglese, his older half-sister, spent a summer at Red Gut when she was 12 and Jason was 10. In the course of a very long email to Dr. Klassen, she perspicaciously wrote:

"The summer I met Jason he was a sweet, gentle and quiet boy with a kind and compassionate nature but desperate to fit in and he didn't feel safe. He would tell me about how all the other boys would beat him up on Red Gut….All the girls would pick on Terra. They were city kids, and my mom wasn't originally from there so there was a lot of reverse racism and classism related to whether they were born there or lived there full time."

"I caught Jason once in an abandoned house in the attic with the other boys that had previously beaten him up. He was so thrilled at being accepted, and they were being "nice" to him by getting him high for the first time on marijuana….I also remember that he was overjoyed at the thought that he was good at it, didn't get too messed up, could keep up with the other boys etc. When I got angry with the guys they told me they thought I would be happy that they were including him because that is what I had asked them to do. No concept of healthy relationship or living."

[67] On the subject of childhood sexual abuse, it appears quite clear from the various materials to which I have had access that Mr. Gardner has consistently reported to numerous persons in authority over many years that on one occasion when he was 7-8, his aunt (his father's half-sister), who had been drinking, took him to her bed, took off his clothes and started to fondle him. Though the chronology is not entirely clear, it seems that, though his father did not initially believe his son, Jason's continued complaints, together with his acting out, eventually persuaded his father and his new wife (Cindy Baskin) that he and his sister Terra should be removed from the grandparent's home. They brought the children to live with them for a time in Toronto, but Jason's behaviour was considered so disruptive that they soon sought assistance from and placement at various Toronto youth mental health facilities. However, starting about age 13 Mr. Gardner ran away to Fort Frances and then to the Red Gut FNT to be with his mother and her new family.

[68] Unfortunately - but all too predictably given what probation officer Westfall describes as his "absolutely chaotic", "complicated" and "abusive" early upbringing - Mr. Gardner began to abuse both drugs and alcohol even before he moved north to be with his mother. According to a 1999 report from a treatment counsellor:

"Jason started drinking alcohol at the age of eleven years. Initially he would drink on the weekends, but he quickly escalated to drinking prior to going to school and during his lunch break. Jason began smoking marijuana at eleven years of age. Jason would smoke marijuana on a regular basis, even when attending school. Prior to his incarceration [at several Manitoba youth facilities], Jason would smoke between 1 and 3 grams of dope daily. He began to experiment with acid approximately 1 ½ years ago. When financially able, Jason will use acid on a daily basis. He will often "chase" the acid with a 6 or 12 pack of beer (depending on finances). Jason stated that he financed his drug habit by stealing or robbing someone."

[69] Recalling that neither Jason's father nor his paternal grandparents elected (or were available) to give their versions of any of this school, residential and sexual trauma history to Ms Bolton, it is of course possible that Mr. Gardner has exaggerated or misconstrued some of the things that happened to him – though as I read Ms Bolton's Report, the various youth and adult pre-disposition and pre-sentence reports conducted over the course of many years, and the reports of Drs. Kalia, Klassen and Gojer, none of the professionals who wrote them have voiced any concern about Mr. Gardner's credibility. However, it seems to me entirely clear that even if some of the incidents he reports are wholly or partially inaccurate, by his early teenage years he was already a very troubled young man. After a relatively brief period living with his mother and her new family, she realized that she could not control her son's substance abuse, criminal behaviour (usually thefts), and other acting out issues, so in February 1998 she contacted Weechi-it-te-win Family Services, a Winnipeg-based agency. He was removed from his mother's care at age 13, and was placed in a number of foster homes before being admitted to the Knowles Youth Treatment Centre in Winnipeg. Unfortunately, he soon went AWOL from that facility and later from other youth facilities, with the result that he was placed in various secure and/or isolated youth custody facilities across Manitoba.

[70] I have carefully read all of the (somewhat incomplete) Manitoba and Ontario records filed with the court regarding his early to middle teenage years. I do not think any useful purpose would be served by further reviewing the chronology in any detail, most of which consists of descriptions of him being placed in custody for substantive offences and/or administration of justice breaches, continually running away from these various forms of custody (sometimes to live on the streets, or to "couch surf", or, occasionally to flee to his mother's residence), committing offences while AWOL (usually street robberies and possession of drugs) and then being returned to custody (where he would often get into fights with other residents), whereupon the cycle would soon begin again. Given the issues I am required to deal with in this application, I think it will be more useful to limit myself to considering the historical findings and current opinions of mental health professionals who have dealt with Mr. Gardner over the years.

[71] In fairness to the offender, I should indicate that there appears to have been about a four year gap in his criminal record (1999-2002), where, often in company with his sister Terra, he appears (according to the Gladue Report) to have alternated living at Red Gut, living in transitional housing in Toronto, or occasionally staying with his father and stepmother.

The Mental Health Evidence

[72] In an assessment conducted in early 1999 at one of the many youth custody facilities in which Mr. Gardner was confined between (roughly) ages 13-15, he was diagnosed – the Gladue Report does not specify by whom – as suffering from "Conduct Disorder – 312.8, Childhood onset. Severe". According to the DSM-IV:

"This subtype is defined by the onset of at least one criterion characteristic of Conduct Disorder prior to age 10 years. Individuals with Child-Onset Type are usually male, frequently display physical aggression towards others, have disturbed peer relationships, may have had Oppositional Defiant Disorder during early childhood, and usually have symptoms that meet the full criteria for Conduct Disorder prior to puberty."

Unfortunately, this early diagnosis is reflected in all three mental health professionals' assessments pivotal to this application.

[73] (I have found various other reports in the youth and adult custodial materials filed (or referenced) as part of this application. As they do not appear to add very much, and as I have no idea of the professional qualifications of some of those who administered various versions of the LSI, I do not think there would be much use in reviewing them here).

[74] Dr. Monik Kalia is a Registered Psychologist working with Dr. Gojer, who asked him to conduct a psychological assessment of Mr. Gardner. He spent some 17 hours with the offender in August 2015, administering 26 psychological tests, in addition to interviewing the offender and Virginia Allen (Gardner). Though Dr. Klassen's assessment and report were completed prior to Dr. Kalia's assessment, Dr. Klassen had access to Dr. Kalia's report before he gave testimony, and he was able to incorporate into his evidence some of what Dr. Kalia had written.

[75] The first battery of tests administered by Dr. Kalia consisted of 11 psychometric cognitive and neuropsychological measures. Mr. Gardner scored as being "average" on all of these measures – on some of the subtests he scored "above average" or "superior". None of the measures or subtests were scored as "below average". Dr. Kalia first concluded that "[h]is answers to psychometric testing as well as responses to the interview questions used in this report are free of distortion of any impression management".

[76] Perhaps more importantly from my perspective Dr. Kalia concluded that:

"[t]he cognitive testing did not indicate any impairment in the area of executive functioning or neuro-cognitive deficits. Despite his long history of substance abuse, his cognitive testing and intellectual function was not affected. There is nothing in my assessment of his cognitive abilities that would prevent him from engaging in psychological interventions and counseling".

Though Dr. Klassen had not separately arranged for psychometric testing of Mr. Gardner, he accepted Dr. Kalia's findings and indicated both that he concurred with them, and that he agreed with Dr. Kalia that the fact that Mr. Gardner is "well endowed intellectually" is a "protective factor". With this I completely agree. To my mind this puts Mr. Gardner in a rather different category from many of the frankly rather pathetic, often intellectually challenged offenders one tends to see in these kinds of applications – see, for example, the recent decision of the Saskatchewan Court of Appeal in R. v. Bird, where one of the factors motivating the appeal court to reverse the trial judge's refusal to impose a dangerous offender designation was that, because of his developmental challenges, the offender had little or no insight into his condition, which made his likelihood of reoffending substantially higher.

[77] Dr. Kalia next administered several well-known personality inventories designed to assess patterns of personality and emotional disorders. Once again, he found no distortion of responses or attempts by Mr. Gardner to picture himself positively. Because these test results complement and flesh out the psychiatrists' assessments, it will be useful to quote some of Dr. Kalia's findings:

"The MMPI-2 clinical profile generated by the responses of Mr. Gardner is similar to individuals with cyclical acting-out behaviour. As tension and anxiety build and stress accumulate, these individuals impulsively reduce tension, usually in a self-defeating ways. The resulting consequences create more anxiety, guilt and self-recrimination, beginning a cycle of anxiety that again leads to impulsive tension reduction. The remorse does not inhibit further episodes of acting out. They exhibit intense conflicts between their dependency needs and their fears of being controlled. They seek and ask for reassurance, emotional connection, and approval, yet they have difficulty with trust and emotional vulnerability. Reassurance from others works only temporarily and needs to be constantly renewed. They find commitment particularly difficult, tend to push others away emotionally, and then panic when the other person withdraws. These individuals usually have a childhood history of caregiver inconsistency and emotional abandonment. Therapy with these individuals should focus on helping them to identify the sources of conflict. Insight-oriented therapy and addressing past emotional abandonments may help teach them how to recognize and label experiences of anxiety and develop healthy coping strategies."

On a slightly different, but complementary version of the MMPI – the MMPI-2-RF – Dr. Kalia reported:

"Mr. Gardner reports significant externalizing, acting-out behaviour like substance abuse and abusive behaviour. He also reports a significant history of juvenile conduct problems and antisocial behaviour. He has a general sensation seeking tendency with a substantial risk for substance abuse and impaired functioning due to interpersonal abusiveness. He feels insecure and inferior and lacks confidence. He is dissatisfied with his current circumstances. He believes that he is incapable of coping with his current difficulties. He is stress reactive, perceiving situations as stressful that others would not, being worry prone, and engaging in obsessive rumination".

[78] The Personality Assessment Inventory (PAI) is an instrument designed to assess "a broad range of psychological conditions, including anxiety, depression, mania, schizophrenia and some characterological disorders. It is designed to provide information relevant to clinical diagnosis, treatment planning and screening for psychopathology". Dr. Kalia concluded:

"The configuration of clinical scales suggests a person with a history of alcohol and drug abuse which has had adverse consequences on his life including strained relationships and legal problems. He has a history of antisocial behavior and manifested a conduct disorder during adolescence. It suggests a person whose major problems lies in his interpersonal relationships. The problematic personality indicates involvement in intense and volatile relationships and his tendency to get occupied with consistent fears of being abandoned or rejected by those around him. He is potentially prone to more extreme displays of anger, including damage to property, threats and assaults to others. His personality style involves risk taking and tendency to be rather impulsive. His self-concept may vary from states of pessimism and self-doubt to periods of relative self-confidence. During stressful times in particular, he has a tendency to become self-critical, uncertain, and indecisive. He is acknowledging problems and shows willingness to participate in treatment. However, his longstanding problems with anger can be challenging in the treatment process and considerable effort need [sic] to be devoted to establish therapeutic alliance to maintain him in the treatment. The profile supports a problem with alcohol dependence and antisocial personality disorder. In addition, his poorly developed self-concept, substance use problems, problems with relationships, difficulty handling rejection and abandonment, also support a diagnosis of Borderline Personality Disorder."

[79] Dr. Kalia finally administered three well-known and well-validated actuarial risk assessment measures – the PCL-R, the HCR-20 and the VRAG. Because Dr. Kalia's scoring of Mr. Gardner's responses on these instruments does not materially differ from the scoring of the same instruments done by the two psychiatrists, and his clinical diagnosis of the offender's psychological profile is rather similar to their diagnoses, there would seem to be little point in detailing what he said in his report. I do, however, want to briefly address one point that both Dr. Kalia and the two psychiatrists were all sensitive to, namely whether these three actuarial risk assessment instruments are appropriate for Aboriginal offenders.

[80] During the course of this hearing defence counsel filed the decision of Phelan J. of the Federal Court Trial Division in Ewert v. Her Majesty the Queen et al. The decision and the supporting documentation reflect that the plaintiff is an Aboriginal offender serving a life sentence in a penitentiary in British Columbia. He wishes to apply to the Parole Board of Canada for conditional release. However, he objects to the Board's apparent insistence on having the results of several actuarial risk assessment instruments (including the PCL-R, the HCR-20 and the VRAG) before the Board will consider him for any form of release. Mr. Ewert's objection is that there is a considerable body of professional opinion that these (and other instruments) have not been – and cannot be – validated for Aboriginal offenders. The response of the Correctional Service of Canada (CSC) has been that the Service has for many years been attempting to develop an instrument that can replace – or possibly supplement – these "more mainstream" instruments (the phrase is mine), but that budget cuts have meant that the Service no longer has the resources to do so.

[81] In a decision released on September 18, 2015 Phelan J. issued an interim order which, inter alia, "enjoined the use [of various risk assessment instruments] until the CSC has conducted a study that confirms the reliability of these tools in respect of adult Aboriginal offenders".

[82] CSC immediately appealed to the Federal Court of Appeal, seeking to stay the Trial Division's decision. In reasons released on December 31, 2015 Trudel J.A. dismissed that application and remitted the matter back to the Trial Division for continuation of the proceedings.

[83] Because this issue was not fully argued before me, and because it is obvious from the decision of Trudel J.A. (as well as from a quick perusal of the public documents available on the Federal Court's website) that the substance of the Ewert case is far from finally resolved, I am of the view that I do not have to decide whether the three risk assessment measures used by the doctors in this case are valid for an Aboriginal such as Mr. Gardner. Nevertheless, as conscientious practitioners who keep up with developments in this field, Drs. Kalia, Gojer and Klassen were all sensitive to this ongoing controversy.

[84] After acknowledging that "a caution is warranted in the application of actuarial risk measures in the aboriginal population" Dr. Kalia then summarized his diagnoses and proposals for Mr. Gardner's management and treatability both in custody and in the community. Because these largely complement what the psychiatrists said, it is appropriate to quote them in some detail:

"Mr. Gardner's history, especially in his childhood is marked with emotional, interpersonal and behavioural difficulties. From an early age, he felt very disconnected with his caregivers. From my interview with Mr. Gardner, it appears that the quality of parenting he received as a child was woefully inadequate. It is not surprising that the testing indicates that he has an antisocial and borderline personality profile, significant anger pathology and substance abuse problems. These disorders are often seen in jailed inmates and are linked to early childhood neglect and abuse. Mr. Gardner in particular comes from a disrupted family and an aboriginal background and unlike his siblings, perceives himself as being rejected and abandoned by his father who had him live with him in his formative years and did not have quality contact with his mother, who lost custody of him. Mr. Gardner has some awareness of this childhood experience and its possible connection to his present problems with relationships, emotional regulation and aggression. He is motivated to address this in therapy. There are many therapies to address this childhood trauma/abuse and its aftermath, the borderline personality makeup and his problems regulating his temper. These therapies are available in the carceral system and the community. Given that he has not had a good history in following through on probation, a more stringent legal mechanism like parole or a parole pursuant to a Long Term Offender designation can be highly effective in ensuring that he follows through with the treatment.

Similarly, there are good programs in custody and in the community that can address anger problems, substance use problems and relationship problems. These include high intensity violence programs that address intimate partner violence significantly more than the standard PARs programs offered by probation services. There are substance use programs and general anger management programs that have been tailored to aboriginal needs. Mr. Gardner is motivated to make changes to his lifestyle, his substance abuse, and addressing his childhood trauma, and his anger. This motivation needs intensive supervision and consequences should he not follow through. Simple probation and parole is unlikely to be effective legal mechanisms as the supervision and consequences is not as effective as under the regimes offered by the Dangerous Offender and Long Term Offender regimes.

Mr. Gardner has never participated meaningfully and finished a contemporary, evidence-based treatment program. He requires more clinically intensive and structured treatment programming in comparison to what has been offered to him in the past. Specifically, he never had the benefit of clinical intervention addressing his borderline personality and childhood trauma.

It is my opinion that Mr. Gardner will benefit from both group and individual therapy. The first stage in individual counselling involves trust building. This will pave the way for him to understand how his tension and fear of abandonment precipitates impulsive behavior. Counselling can help him to understand his memories of abandonment and parental rejection and bring awareness about how certain events trigger his traumatic past. Understanding how he replicates his relationship with others particularly his intimate partners should be the core of counselling. This will assist him to get a better insight into his cyclical pattern of acting-out."

[85] As I have already mentioned neither Dr. Kalia nor Dr. Klassen nor (as will be seen) Dr. Gojer, differ significantly in their analysis of the relevant factors deriving from Mr. Gardner's very sad personal history: continued abandonment from an early age; inconsistent and conflicted relationship with caregivers; lack of early success at school; history of substance abuse from an early age; early (and continued) diagnosis of conduct disorder; a lengthy history (youth and adult) of offending – much of it violent; lack of commitment to address substance abuse issues; and a history of absconding to avoid facing up to personal and legal obligations.

[86] For this reason, I do not find it necessary to delineate in detail Dr. Klassen's description of Mr. Gardner's personal and developmental history, his medical and substance abuse history, his mental health history, and his legal and institutional history. (I have already referred to some portions of Ms Inglese's long and helpful email to Dr. Klassen, which he includes in his report in its entirety). Such differences that may exist in any of these domains between Dr. Klassen's report and those of Drs. Kalia and Gojer are minimal – usually stemming from having slightly different access to materials and collaterals contacted for interviews.

[87] I thus move straight to Dr. Klassen's formulation of his psychiatric opinion, which, once again, does not significantly differ from those of the other two mental health professionals. He writes:

"From a diagnostic perspective, this gentleman meets the criteria for antisocial personality disorder. He is not so much conning or manipulative as behaviourally impulsive, with poor self-regulation, particularly while alcohol-intoxicated. His alcohol intoxication contributes to the antisociality, but I believe that the diagnosis is still warranted, although there are also elements of "complex" post-traumatic stress disorder; antisociality is often trauma-related, perhaps more obviously in this matter. "Complex" post-traumatic symptoms in this case include difficulties with low self-esteem, anxiety, substance use, poor self-regulation and anger, mistrust, and defiance. He further meets criteria for an alcohol use disorder, and a cocaine use disorder, both currently in remission in a controlled setting."

After offering what I believe is the DSM-5 definition of a personality disorder Dr. Klassen writes:

"An individual may be diagnosed as suffering from antisocial personality disorder where there is a pervasive pattern of disregard for and violation of the rights of others, occurring since age 15, as indicated by three or more of:

• failure to conform to social norms with respect to lawful behaviours [met] • deceitfulness, as indicated by repeated lying, use of aliases, or conning others for profit or pleasure [not clearly met] • impulsivity or a failure to plan ahead [met] • irritability and aggressiveness as indicated by physical fights or assaults [met] • reckless disregard for the safety of self or others [met] • consistent irresponsibility as indicated by repeated failure to sustain consistent work behaviour or honour financial obligations [possibly met] • lack of remorse, as indicated by being indifferent to or rationalizing having hurt, mistreated, or stolen from another [likely met]

In order to meet the criteria for this disorder, individuals must present with conduct-disordered behaviour, before age 15. This appears to be the case here."

[88] After describing his administration and scoring of the PCL-R, the HCR-20 and the VRAG, Dr. Klassen concluded that "this gentleman is at significant risk of violent recidivism". He adds:

"In addition to probability, risk assessment also entails addressing issues of imminence, frequency, and severity. In these domains, we are left with clinical judgment alone. Imminence would appear to be live; this gentleman has typically recidivated quite rapidly. Frequency, and severity, would appear to be live; this gentleman has a number of violent offenses on his criminal record, and some are serious, albeit not all. Predicting severity of violent recidivism, should it occur, is not possible beyond evaluation of an individual's history, and whatever information that may offer. Mr. Gardner's next offense could be, objectively, serious, or not."

[89] As with Drs. Kalia and Gojer, Dr. Klassen concludes that "from a purely psychiatric perspective, the test for Dangerous Offender appears to be met".

[90] I do not read Dr. Gojer's report as differing from Dr. Klassen's opinion in any substantial way. He too diagnoses the offender as having a "present personality profile fit[ting] that of an Antisocial Personality Disordered Man". He agrees with Dr. Klassen that "[the offender] shows many of the features of a child who has experienced trauma, and while he does not have the classic features of a Post Traumatic Stress Disorder, his malformed personality is a product of trauma in childhood and can be understood as a Complex Post Traumatic State…[combined with] a serious Alcohol Use Disorder". He concurs that absent commitment to substantial and prolonged therapy, Mr. Gardner is at high risk to reoffend.

[91] Where Dr. Klassen appears to divide from the other two mental health professionals is on the difficult question of whether Mr. Gardner will be prepared to resist his historic patterns of running away from court-ordered supervision. Dr. Klassen notes: "[I]in his teens, he presented with considerable autonomy drive, antiauthority sentiment and need for control over his trajectory". Later in his formulation he writes that: "[Among] the dynamic or criminogenic variables that would appear to be most salient in this case…[are] relationship and geographical instability, autonomy drive, with consequent poor retention and modest investment in treatment [and] poor self-regulation and impulsivity leading to difficulty with de-escalation, and ultimately flight risk". He thus concludes that because of evidence from the offender's history of unwillingness to carry through with counseling and treatment programs:

"I believe there is little reason for optimism that, for the foreseeable future, this gentleman could be successfully managed on a Long-Term Supervision Order (LTSO), where "successfully managed" suggests the absence of offending behaviour. Admittedly the bulk of this gentleman's offending behaviour has not been particularly grievous. Given Mr. Gardner's offense history, the challenges in supervising this gentleman, his impulsivity, and his relative lack of responsiveness to treatment thus far, however sympathetic one may feel toward this individual given his background make it very difficult to provide psychiatric support for the notion of "reasonable possibility of eventual control of the risk in the community", but I would also note that he has not been subject to the scrutiny of CCC residency, strict release enforcement, and federal supervision. I would submit that practically speaking this gentleman, on an LTSO, would likely face numerous charges for breaches of his LTSO".

[92] Dr. Gojer, who had access to Dr. Klassen's report as he wrote his own, chose not to address this question directly. After describing various treatment programs and monitoring mechanisms available through federal corrections (CSC) in Toronto, he writes: "The Long Term Offender Designation gives a highly controlled mechanism with serious consequences that will allow Mr. Gardner to adequately deal with his past, create a stable foundation for himself and become a productive and prosocial individual….As to whether there is a reasonable possibility of eventual control of his risk, is of course still a legal determination".

[93] Before evaluating counsel's submissions as to the disposition to be imposed on the offender, it is necessary to describe how the evidence and testimony of various of Mr. Gardner's family, friends and supporters can be said to address the risk factors.

The Civilian Evidence

[94] It was a pleasant surprise that, despite his lengthy record, Mr. Gardner continues to enjoy a substantial amount of community support. His employer, several friends, family and social workers testified on his behalf at this hearing. Some of these supporters also provided information to the writers of the pre-sentence and Gladue reports, as well as to the mental health professionals. In addition, some attended on most, if not all days when the substantive evidence was heard and counsel's arguments were presented. The overall picture presented is that those who have known Mr. Gardner over the years do not believe that he is fundamentally evil, violent or incorrigible. Though they all acknowledge that his road to rehabilitation will be long and frequently difficult, like the professionals, they believe that if he can finally come to grips with his alcoholism and fully commit to a substance-free lifestyle, his not inconsiderable talents can be nurtured and promoted.

[95] While all this evidence was very helpful, I wish to emphasize that I have been particularly assisted by the oral (and written) evidence given by his half-sister Ms Inglese. Precisely because she herself has been through a difficult background and harsh experiences – some of which she shares with Mr. Gardner - she certainly does not look at the world or her half-brother with rose-tinted glasses. She clearly grasps that what is so tragically missing from his life is a history of "unconditional love". Though his mother is well intentioned, Ms Inglese was unfortunately all too correct in her observation to Dr. Klassen that: "I am going to sound harsh in my judgment of our mother…but…[t]he reality is that my mother Virginia has no clue how to raise a child, how to set healthy boundaries, how to nurture or to show compassion. She is a damaged woman who has not seemed to take the time or put the effort in to really better herself and regardless of the reasons this has negatively impacted all of her children".

[96] Perhaps the only person with whom Mr. Gardner has experienced unconditional love was his sister Terra. I use the past tense because, sadly, on May 14, 2013 while Mr. Gardner was incarcerated pending this hearing, Terra was struck and killed by a train in Toronto. This is yet another massive loss he will have to contend with for a very long time. I hope that he will have access to and take advantage of professional help to come to grips with his sister's death. Many of the civilians who testified indicated that since her tragic death, Mr. Gardner has spoken of being even more determined to fundamentally change his life style.

[97] I also want to make reference to the attendance and testimony of his mother and her new family. They are to be commended for driving all the way down from far northwestern Ontario to come to support Mr. Gardner. Unfortunately, despite the offender's expressed desire to go to Red Gut at some point in the future, and his family's willingness to accommodate him there, I share Dr. Klassen's view "that this is more a reflection of his sense of personal and social alienation and loss, than a realistic plan to prevent recidivism". While Mr. Allen testified that alcohol is banned from his personal residence because he keeps a sacred drum there, and despite the fact that he and other community leaders do what they can to keep their territory "dry", he conceded that alcohol is readily available for those who wish it. Thus, though he indicated that he would be prepared to have Mr. Gardner live with him at some point in the future, he agreed that he could not in any way ensure that the offender would stay away from alcohol.

[98] A sad but graphic illustration of the immensity and pervasiveness of this problem of alcoholism in the aboriginal community was revealed during this family's evidence. Ron Allen, Virginia Allen and their elder son Landon all testified that while they have experienced their own problems with alcohol, through a combination of counseling and personal willpower they have developed and maintain an abstinent lifestyle. Unfortunately, their younger son Cameron told the court that he "currently has problems with alcohol"; in fact when he testified at 10:00 in the morning, he reeked of alcohol and I detected that, upon seeing this, his father was obviously distressed.

[99] One other element of the civilian evidence merits reference, as in my view it goes to one aspect of the question of the risk Mr. Gardner presents. While in custody awaiting this hearing Mr. Gardner completed his GED by correspondence. Not only is this an achievement in and of itself, but I was also told that he has been using his time to write fictional stories, one or two of which have been published in a neighbourhood paper. He told Mr. Westfall that he wishes to continue to upgrade his education while still incarcerated. In fact, he sensibly told Mr. Westfall that:

"[H]e is actually looking forward to a substantial period of time in custody. He views himself as 'institutionalized' because he is able to adjust to life behind bars so quickly. And we both agree that while in custody he might be able to accomplish things that seem to be impossible for him on the outside. He plans to take serious substance abuse treatment in order to free himself of his alcoholism. As well, he states his intention to study business so that he will have some educational credentials when he gets out".

In addition to completing his Grade 12, Mr. Gardner told Dr. Gojer that he "is currently enrolled in Centennial College in their Business Administration Program and is doing an accounting course at Northern College in Timmins. He has completed three credits to date in business and psychology". I should add that both Ms Allen and Ms Inglese told me that the Pikangikum FNT has funds available for band members to attend university. They presume that Mr. Gardner would also qualify. All of this potentially bodes well for the offender's future; Dr. Klassen noted in his report that Mr. Gardner's completion of his GED is "a protective factor".

The Evidence of Federal Correctional Officials

[100] Because counsel sensibly submitted that, regardless of whether and which designation I am persuaded to make, a penitentiary-length sentence should ultimately be imposed on the offender, there was no need to hear any evidence from provincial correctional officials.

[101] Three Correctional Service of Canada (CSC) representatives testified at this hearing. I do not propose to review their evidence in any detail, as the transcripts of their evidence will form part of the package of materials automatically forwarded to correctional officials pursuant to s.760 of the Criminal Code. They indicated that CSC is attempting to respond to numerous internal and commissioned research reports, findings from the Office of the Correctional Investigator, and complaints from various aboriginal service providers in federal corrections, all to the effect that aboriginal offenders do not generally access counseling and other treatment programs while incarcerated as much as non-aboriginal offenders; consequently, they tend to spend considerably longer in custody. Ms Petrina Lemieux and Mr. Jamie Contois testified that the Ontario Region of CSC is implementing a new model of service delivery for all (willing) offenders in penitentiaries. This Integrated Correctional Model Program (ICPM) attempts to address the ongoing problem of prisoners not being able to access and complete rehabilitative programming prior to their release eligibility date. Recognizing that the most disadvantaged group is disproportionately comprised of aboriginal offenders, the "High Intensity Aboriginal Multi-Target Program" is designed to have elders "tease out" aboriginal offenders' needs very soon after arrival in federal custody. Depending on security rating and other environmental issues, offenders are then transferred from the Reception Unit at Joyceville Institution to other Ontario penitentiaries, where they are offered access to the "Pathways" program, an approximately one-year long counseling and educational program. Both officials said that involvement and follow up by committed elders, combined with something of a "carrot and stick" approach to aboriginal offender management, has to date had impressive results in reducing waiting lists for entry to programs, at least in those institutions that have run "pilot projects".

[102] I should add that because Ms Bolton had recommended that Mr. Gardner serve some of his custodial time in an aboriginal healing lodge, Mr. Contois was asked about access. He indicated that presently there are no such lodges in the Ontario Region, so that if Mr. Gardner wished to apply to go to one of these facilities, he would have to apply for an inter-regional transfer, a complex process. As an alternative, he explained that should Mr. Gardner apply for parole, he could apply under s. 84(b) of the Corrections and Conditional Release Act to be released to an aboriginal community which has a healing lodge.

[103] Ms Kim Gillespie, CSC Acting Area Manager of various forms of community programs in the Toronto area, described how the ICPM program is being extended to prisoners released from penitentiaries into the community prior to Warrant Expiry Date. Because such offenders remain subject to control and supervision by CSC personnel, they can be directed to ICPM "maintenance cycles" right up to the end of their sentences. This would include offenders released from penitentiary subject to an LTSO.

Conclusion Regarding Dangerous Offender Designation

[104] It will be recalled that Crown counsel's remit from the Attorney General was to seek a Dangerous Offender (Indeterminate) designation. Crown counsel began her submission by making several entirely valid points about the offender's criminal history, particularly the nature of his offences, the fact that he appears to be escalating in his patterns of violence to others, and his rather significant and continuous record for non-compliance with various forms of court orders.

[105] Given Dr. Klassen's entirely valid concerns about Mr. Gardner's "treatability", and given the offender's demonstrated history of flight risk and desires for autonomy, it is somewhat tempting to make a Dangerous Offender Indeterminate designation, leaving it up to the Parole Board of Canada to determine whether and when the offender is "safe" to be released into the community, as the Ontario Court of Appeal concluded was the only course of action available in the recent case of R. v. J.W.H. However, even before considering Gladue/Ipeelee factors, as obviously I must do, in my judgment Mr. Gardner's criminal history and prognosis simply does not reach the level where the only option is an indeterminate sentence. Even though, as will be seen, I have concluded that it is appropriate to designate Mr. Gardner as a Dangerous Offender (Determinate), in my opinion he is "not one of that very small group of offenders whose personal characteristics and particular circumstances strongly militate in favour of indefinite preventive detention" (R. v. G. (J.L.A.); R. v. Lemaigre). To put this at an abstract level, the legal philosopher Robert Dworkin aptly suggests a test of what he calls "vivid dangerousness" before (the U.S. equivalent of) a dangerous offender designation may be applied. In the case at bar, some evidence of long-term dangerousness clearly exists, but in my judgment it is insufficiently "vivid" to justify the imposition of the designation. In my view, both practically and philosophically the principle of restraint surely implies nothing less.

[106] Many of the case authorities and medico-legal writings I have consulted in this case quite properly warn of the dangers of accepting a repetitive offender's statements that he wishes to change his behaviours to avoid future criminality. For example, Dr. Klassen writes:

"Certainly people that know this gentleman well, at least to the extent that I've been able to learn about this through direct interviewing or collateral information from others, feel quite sympathetic toward this young man. He has repeatedly expressed a wish to change his lifestyle. That being said, this man is still only 29 years of age, and is quite some distance from age-related decline in propensity for violent or acquisitive offending. His risk scores are significant. There's been very little in the way of stability in the community, his response to treatment has not, unfortunately, been particularly durable or encouraging, and he has a history not only of density of offending behaviour, but rapid return to offending, and rejection of supervision. I have some concerns, further, that the notion that he could even contemplate return to alcohol is still present, and that he espouses some wish to return to use of cannabis even while acknowledging that cannabis is a gateway substance for him, as regards alcohol use".

[107] However, despite this rather pessimistic view, as I have previously quoted (para. 91, supra) Dr Klassen very fairly notes that "Mr. Gardner has not been subject to the scrutiny of CCC residency, strict release enforcement, and federal supervision". I interpret this as suggesting that while Mr. Gardner may well pose considerable difficulties for those responsible for supervising him on a LTSO, it is, at this stage, still worth the effort.

[108] Even though I do not feel that I need to invoke Gladue/Ipeelee principles to reach the stage of being entirely comfortable rejecting the Crown's submission in favour of an indeterminate sentence, when I apply those factors in relation to this case – particularly paras. 71-76 of Ipeelee - the linkage between colonialism's lasting legacy and this offender is obviously made out. In fact, it is so clear that I do not feel that I need to reiterate the Supreme Court of Canada's directions to trial judges.

[109] As I have previously discussed, defence counsel's initial position was that no sufficient "pattern" of offences within the meaning of s. 753(1)(a) has been established. In the event that I found that such a pattern has been established – which I have done – in light of the evidence of the mental health professionals, he does not urge that I dismiss the possibility of any form of Dangerous Offender designation and simply impose a definite sentence. Defence counsel supports the notion that a Dangerous Offender Determinate designation should be made. With this I agree; while Gladue/Ipeelee factors more than adequately explain how Mr. Gardner has unfortunately reached the stage he has, in my judgment there is no lesser "reasonable alternative" to this designation, given the risk he presents going forward.

[110] Thus, in all of the circumstances of this case, I have concluded there is ample evidence establishing that a Dangerous Offender Determinate designation should be imposed. (And Mr. Gardner should be on notice that if he reoffends in the future, the designation that I make today certainly opens the door to a speedy determination of Dangerous Offender Indeterminate designation).

The Length of the Definite Sentence to be Imposed

[111] Though they did not provide me with any case law, both counsel told me that from their canvass of the relevant sentencing authorities a "global" sentence – before making any allowance for time spent in pre-sentence custody – of 6-8 years would be appropriate for these offences, given the antecedents of this offender. Given those positions, with which I generally agree, I have conducted a brief review of recent Ontario authority on point, some involving aboriginal offenders, some not. In so doing, I have again considered the application of Gladue/Ipeelee factors in this aspect of my function as a sentencing judge, because of clear dicta in various appellate authorities to the effect that "[Gladue] is intended to remedy [the failure of Canadian courts]…to take into account the unique circumstances of Aboriginal offenders that bear on the sentencing process" and "is intended to remedy this failure by directing judges to craft sentences in a manner that is meaningful to Aboriginal peoples" (R. v. Ipeelee; R. v. Leonard; R. v. Gionet). From these statements of appellate authority it is clear that Gladue/Ipeelee factors are to be applied at all stages of the sentencing process, not just in the determination of whether to impose an indeterminate sentence.

[112] Though each case precedent obviously turns on its particular facts, and the criminal backgrounds of each repetitive offender are different, for purposes of the record I should indicate that I have found the following Ontario cases to be of some assistance in framing the definite sentence (and the LTSO order) that I consider appropriate: R. v. M. (W.E.J.); R. v. Lewis; R. v. Earle; R. v. S.N.W.; R. v. M.O.; R. v. Mauviel; R. v. McAndrews.

[113] The case of R. v. Moonias seems to be most factually similar to the case at bar. In that case the Aboriginal offender pleaded guilty to two counts of aggravated assault arising from an apparently spontaneous drunken attack with a knife on two acquaintances, following a minor argument. Given the offender's criminal history Crown counsel sought a dangerous offender (indeterminate) designation, while defence counsel proposed an LTO designation for a 5-7 year period. In the event the sentencing judge came to the conclusion that a determinate sentence should be imposed, both counsel joined in an alternative submission that "Mr. Moonias [should] be sentenced to a term of imprisonment of 5 years less presentence custody".

[114] In coming to the conclusion that the Crown had satisfactorily proven a pattern of repetitive behaviour and persistent aggressive behaviour within the meaning of the dangerous offender provisions of the Criminal Code, Di Giuseppe J. summarized the offender's background and criminal history in terms quite similar to the case at bar:

"Steve Moonias is a 32 year old Aboriginal male who has led a troubled life, fraught with childhood and adolescent trauma. He was sexually and physically abused as a child. He grew up in a community where the abuse of alcohol and the inevitable violence that it spawned was common. When he was 17 years old he witnessed a homicide. He lost a brother to suicide in 2007. Both his parents experienced abuses within the residential school and day school system. There is no doubt that this combination of systemic and background factors have contributed to Mr. Moonias coming before the court. I take these factors into account in assessing the Dangerous Offender Application.

Mr. Moonias' criminal record, reviewed earlier in these reasons, includes eight convictions for crimes of violence between 2002 and 2009 in addition to the two aggravated assaults from December 16, 2010. The five convictions for aggravated assault all involved the use of weapons; a board with a nail on one occasion and a knife in the other four incidents. With respect to all of these incidents, Mr. Moonias was bound either by a probation order or a recognizance of bail, and committed the violent offences while under supervision under court orders in the community. In respect of all of these crimes, save for the conviction for assaulting a peace officer, Mr. Moonias was intoxicated.

By the time Mr. Moonias embarked on his criminal conduct, his substance abuse was prevalent and well-formed. Over the period spanning his criminal record, he participated in forms of counselling and treatment to address his addiction. In most cases, he participated in these programs and expressed a resolve to stop drinking. Unfortunately, Mr. Moonias was unable or unwilling to maintain that resolve, and a pattern emerged: Mr. Moonias continued to drink and commit violent crimes."

[115] Because the forensic psychiatrist who had assessed the offender "had expressed cautious optimism for a positive prognosis based on [abstention from alcohol supplemented by anti-alcohol and anti-depressant medication, and continual monitoring of his mood and potential for returning to alcohol abuse]", Di Giuseppe J. concluded "that there is a reasonable expectation that a determinate sentence followed by a lengthy period of supervision will adequately protect the public". Though he considered that the joint submission was "at the low end of the range given the circumstances of the offences and in [the offender's] circumstances", he acceded to the proposal and imposed concurrent sentences of 33 months (five years less 27 months pre-sentence custody credited on a 1:1 basis) followed by an LTSO for 8 years.

[115] I have found this case to be of considerable assistance, in terms of both analysis and quantum. Obviously, there are differences in the two cases: Mr. Moonias appears not to have any youth record of any kind, and he had considerably fewer adult offences than Mr. Gardner. Conversely, Mr. Moonias had three previous convictions for aggravated assault, while Mr. Gardner has one.

[117] After carefully considering all of this case law, I am of the opinion that a "global" sentence of 7 years custody will appropriately address all of the factors I must consider (including applying Gladue/Ipeelee principles at this level of analysis).

Allowance for Time Already Spent and Conditions of Confinement in Pre-Sentence Custody

[118] Mr. Gardner has been in continuous custody since his arrest on August 10, 2012, a total of 1265 actual days to today's date. Since none of the factors mentioned in s. 719 (3.1) of the Criminal Code apply to this offender, both counsel agree that I should grant credit at a rate of 1.5:1 for most of the time spent in pre-sentence custody.

[119] Counsel also agree, however, that there are two periods of time which should be excluded from that calculation, because Mr. Gardner was serving sentences at some points during this remand period. These are the 6 month sentence imposed by Brown J. on February 6, 2013, as indicated in para. 41 supra, together with a separate period of 60 days custody imposed on June 20, 2014 for the offence of possession of marijuana. Having said that, both counsel further agree that Mr. Gardner would have earned the maximum remission available as deductions from those two custodial sentences (Prisons and Reformatories Act s. 6(1)). Thus, from the total of 1265 days, counsel are agreed that I should not include 160 days (240 days total less 1/3 remission = 160 days).

[120] Calculated mathematically this amounts to 1105 actual pre-sentence custody days. When I apply the 1.5:1 formula, Mr, Gardner is to be credited with 1657 days of pre-sentence custody (approximately four years and seven months).

[121] Defence counsel proposed that I should credit Mr. Gardner with more than 1.5:1, at least for some portion of his time spent in remand. He produced material indicating that because of an ongoing labour-management dispute between the provincial Ministry and the union representing correctional officers, over the approximately 42 months he has spent awaiting disposition of this matter, Mr. Gardner has spent at least 75 days in full "lockdown", and many other days having his other normal "privileges" sharply reduced. I assured counsel that I was already well aware of this because a common complaint voiced almost daily in this courthouse has been and continues to be that adult male remand prisoners are helpless pawns in a seemingly never-ending battle between labour and management. (In fact, I would presume, from evidence I have heard in other cases since the date defence counsel made this submission in late November, that Mr. Gardner has by now spent several more days in full "lockdown").

[122] I have a number of analytical problems with counsel's proposal. First, if I award Mr. Gardner any additional credit, I would likely have to do so for every other prisoner who has spent a substantial amount of remand time in either of the facilities in which he has been housed in recent months. Surely, this is not what Green J. had in mind in his carefully reasoned decision in R. v. Doyle. As I read that judgment, though the number of "lockdown" days experienced by Mr. Doyle is roughly the same as those experienced by Mr. Gardner to November 30, 2015, it was not that factor which principally led Green J. to conclude that Mr. Doyle had experienced "particularly harsh treatment", and was thus entitled to some further reduction of sentence. I specifically refer to para. 53 of His Honour's reasoning.

[123] My second problem with counsel's proposal derives from the fact that for 34 of the approximately 42 months Mr. Gardner has spent awaiting disposition of this case, he was not deemed to be "presumptively innocent", as he entered his pleas of guilty on April 2, 2013. Thus, though the locus of his confinement did not change, technically Mr. Gardner's status did change with his pleas of guilty. The phrase "presumptively innocent" was used by Hill J. in R. v. Tulloch (at para. 28), and it is clear from his reasons that this was a major "mitigating" factor that moved him to grant a modest credit beyond the 1.5:1 level to Mr. Tulloch (who, unlike Mr. Gardner, was a first offender, very unused to spending time in remand custody).

[124] My third problem with counsel's submission is that, as Hill J. notes in R. v. Tulloch "lockdowns" may occur for numerous reasons, some of which have nothing to do with problems arising from chronic understaffing or union management disputes. Curbing the possible spread of infectious diseases or valid security concerns about the presence of weapons are entirely legitimate reasons for institutional officials to invoke "lockdowns" – in fact, they might well be considered negligent were they not do so. Thus, while the total number of "lockdown" days counsel has obtained from institutional officials is no doubt accurate, that data is insufficiently fine-grained for me to differentiate among various reasons for "lockdowns" at the Toronto South Detention Centre and Maplehurst Correctional Centre. This is even more difficult when one tries to evaluate an unenumerated number of days when Mr. Gardner's privileges may have been somewhat curtailed but no "lockdown" occurred. All of which is to say that, unlike the relatively simple mathematical computation of credit for the number of days spent in pre-sentence custody (such as I have calculated in paras. 118-120 supra), rationally assigning an additional credit is more complicated.

[125] Having said this, it is clear from Canadian and international penal history that prolonged restriction or removal of normal institutional "privileges" can all too easily result in eruptions of violence, particularly when prisoners perceive that they are overcrowded. As the last few days of evidence and submissions were heard, Mr. Gardner appeared in court one day with a broken jaw, the result of an attack by another prisoner. Mr. Rose told me that because the jail authorities are so preoccupied with the tensions associated with the labour dispute and issues of chronic understaffing, once his client had been taken to the hospital to have his jaw wired shut, he had received little by way of follow up medical attention. He asked if I would permit his client to have in-court access to nutritional drinks to boost his weight, which, of course, I was prepared to do.

[126] Overall, I am satisfied that, in the unique circumstances of this case, the number of "lockdown days", the sustained reductions of "normal privileges", combined with the assault Mr. Gardiner has recently sustained (presumably as an indirect consequence of these reduced "privileges") entitle him to some further "mitigative" credit to reflect continuing conditions in his confinement over much of the past 42 months.

[127] I realise that it is somewhat unusual for a sentencing judge to reflect mitigation by allotting a specific number of days of deduction. However, since some of what has happened here can be said to amount to a form of state misconduct, I consider it right to do this in the unique circumstances of this case. In R. v. Nasogaluak, the court cites with approval (at para. 49) a statement by Prof. Allan Manson about the communicative purpose of sentencing: "The communicative function of sentencing is all about conveying messages. The messages are directed to the community. They are about the values which ought to be important to the community". Thus, as an expression of community disapproval of the state's continuing inability to provide safe and properly administered detention centres, I believe it is consistent with Nasogaluak and cases cited therein to specify an additional deduction of 90 days to reflect the "particularly harsh treatment" this offender has suffered over portions of the past 42 months. I realise that some might consider that this is a very modest deduction in light of what the offender has undergone. I agree that this is so, but I must keep in mind that this is a deduction in excess of 1.5:1.

Conclusion Regarding Custodial Sentences to be Served

[128] The offender will be sentenced to a further 810 days in custody (approximately 27 months) going forward from today's date. I arrive at this figure in the following way:

Global sentence of 7 years = 2557 days

Less allowance for "particularly harsh treatment" = 90 days

Less allowance for pre-sentence custody credit = 1657 days

Balance of custodial sentence = 810 days

[129] I now turn to the issue of attributing actual sentences to the two counts for which he is to be sentenced. Because the offender stabbed M.A. three times (luckily quite superficially), and because he had a previous very recent record of violence for offences against her, I had initially thought to impose a longer sentence for the offence against her. However, given the devastating effects on C.A. from the single stab wound he sustained, I find that I cannot rationally distinguish between the two offences in terms of quantum. Given that these were spontaneous offences occurring within minutes of one another, I propose, as was done in R. v. Moonias and some of the other cases I have referenced, to impose concurrent sentences:

Count 1 – 810 days

Count 2 – 810 days concurrent.

The Long-Term Supervision Order (LTSO)

[130] Though, as I have described, counsel differed as to whether a determinate or indeterminate sentence should be imposed, it is important to note that both counsel were in agreement that if I were to come to the conclusion that a determinate sentence was appropriate, a penitentiary-length term should prima facie be imposed (subject to a deduction for time spent in pre-sentence custody). This is important, because s.753.1(3)(a) of the Criminal Code requires that a sentence of at least two years must be imposed before consideration may be given to making an LTSO order.

[131] Crown counsel urged that the maximum period permitted by law – 10 years – should be imposed on this offender, given his long-standing and unaddressed proclivities, and most particularly the need for close monitoring to keep him away from alcohol and drugs.

[132] Given the offender's age, defence counsel argued that the length of the LTSO should be 5 years.

[133] A few months ago I delivered reasons for sentence in R. v. J.D.S., during the course of which I expressed some concern (at para. 74) that, since the inception of the Long-Term Offender regime, some 70% of LTSO orders have been made for the maximum period of 10 years. I continue to be troubled by the idea that the "default position" seems to be the maximum permitted by law; with respect, this does not seem to me to be a particularly calibrated and cautiously gradated use of this rather extraordinary power.

[134] Applying these reservations in the case at bar, I am nevertheless entirely convinced that an LTSO order should be made for the maximum period of 10 years, given what the mental health professionals have said and recommended, what the facts of this case disclose, and what the offender's background reveals about his almost 20-year history of offending, much of it violent. In my judgment this offender presents an ongoing risk for reoffending if he is not treated, medicated and carefully monitored once he is released from penitentiary. (I also note that in the unlikely event the authorities who monitor the LTSO consider that Mr. Gardner "no longer presents a substantial risk of reoffending" s. 753.2(3) of the Criminal Code contemplates the possibility of an application to a Superior Court to review its length or continued existence).

[135] For greater clarity, it is my intention that the offender be sentenced to a total custodial term of 810 days, followed by a Long-Term Supervision Order for 10 years.

Ancillary Orders

[136] There will be an order for the production of a DNA sample pursuant to s. 487.04 of the Criminal Code on counts 1-2 (primary designated offences).

[137] There will be a weapons prohibition order pursuant to s.109 of the Criminal Code for life.

[138] There will be an order under s.743.21 of the Criminal Code prohibiting the offender from communicating directly or indirectly with M.A. or C.A. during the custodial portion of the sentence.

[139] Though victim surcharges could be imposed for the four offences for which the offender is being sentenced, because the time frames specified in the charges pre-date October 24, 2013 I retain discretion not to make such orders. Given this offender's penurious background, combined the length of time for which he is now to be incarcerated (either in a penitentiary or in a halfway house), I decline to make such orders.

[140] Pursuant to s.760 of the Criminal Code, I direct that a transcript of the proceedings on the taking of the guilty plea (April 2, 2013), copies of the Exhibits filed in this case, transcripts of the psychiatric evidence given on October 6, 9 & 23, 2015, and a copy of these sentencing reasons be forwarded to the Correctional Service of Canada for information.

[141] Finally, I wish to speak directly to Mr. Gardner. As a result of my decision today, you will serve the custodial portion of your sentence in a penitentiary. You will recall from the evidence of some of the witnesses employed by the Correctional Service of Canada, particularly Ms Petrina Lemieux and Mr. Jamie Contois, that there are now a greater range of aboriginal-specific programs available in the Ontario Region than there have been in the past. If, as you have told probation officer Westfall and other people who have interviewed you since you have been incarcerated on these charges, you truly wish to modify your life style and address your problems, you need to start by accessing and taking seriously numerous treatment programs while you are still in custody. But you will need to start requesting and pressing for access to programming; experience demonstrates that you may well have to repeat that request on numerous occasions. In a word, you will need to be a strong and persistent advocate for yourself. Passivity and sullen resistance will get you nowhere, except possibly to be "gated". Good luck.

Released: January 26, 2016

Signed: Justice D.P. Cole

ADULT CONVICTIONS FOR VIOLENT OFFENCES

Date	Offence & Victim	Alcohol and/or drugs	Judge	Custodial Disposition
09-02-2005	Assault (domestic)	"not intoxicated but hungover"	?	Conditional Sentence - 6 months
12-12-2005	Robbery (casual acquaintance)	yes	Sheppard	10 months
13-01-2006	Assault (casual acquaintance)	yes	Taylor	90 days concurrent
26-01-2006	Assault (peace officer)	?	Bigelow	90 days concurrent
02-02-2006	Assault (domestic)	yes	Hogg	10 months concurrent
17-09-2008	Assault (mother in law)	both	Lebel	6 months
08-05-2009	Assault (stranger)	yes	Omatsu	Conditional Sentence – 6 months
29-05-2009	Assault (peace officer)	yes	Sheppard	60 days
05-11-2009	Aggravated assault (stranger)	"coming down"	Greene	6 months
10-01-2012	Assault (domestic)	?	Moore	Time Served
27-01-2012	Aggravated assault (domestic)	yes	Cole	Predicate Offences
	Aggravated assault (stranger)
10-08-2012	Assault (peace officer)	yes	Brown	6 months