Court File and Parties

Court File No.: Toronto 4817 998 15-70004141 Date: 2017-05-15 Ontario Court of Justice

Between: Her Majesty the Queen — and — Sanjay Francis

Before: Justice Richard Blouin

Guilty Pleas heard on: February 2 and 3, 2015

Dangerous Offender Application heard on: April 13, 18, 19, 20, 25, and 27, 2017

Reasons for Sentence released on: May 15, 2017

Counsel:

• Erin Pancer, counsel for the Crown
• Paul Lewandowski, counsel for the defendant Sanjay Francis

BLOUIN J.:

Introduction

[1] On July 11, 2012 Mr. Francis was arrested after an extensive undercover police investigation into safety concerns involving his former intimate partner, Felicia MacLean and her children. Ms. MacLean contacted police in late May, and, at some point, sought and received witness protection. Mr. Francis was charged with 14 counts regarding his actions during a two-month period from May 18 to July 11. They include:

1. Obstruct Justice
2. Attempted Murder – Aaliayah Siu
3. Attempted Murder – Kayleigh Siu
4. Attempted Murder – Layla Siu
5. Attempted Possess Firearm
6. Utter Death Threats – Felicia MacLean
7. Utter Death Threats – Aaliayah Siu
8. Utter Death Threats – Kayleigh Siu
9. Utter Death Threats – Layla Siu
10. Criminal Harassment
11. Breach Probation
12. Breach Probation
13. Breach Probation
14. Breach Probation

[2] On February 2, 2015 the defendant appeared before me on the first day of his scheduled five-day preliminary hearing. He represented himself, although counsel had been appointed amicus (David Berg), and another lawyer (Michael Clarke) was present to assist the defendant but had not been formally retained.

[3] For reasons that still remain somewhat unclear to me, the defendant elected to enter guilty pleas to nine counts, and waive his right to a preliminary hearing on the remaining counts. He pleaded not guilty to the first five counts (Obstruct Justice, Attempt Murder x3, Attempted Possess Firearm), and those counts were committed for trial in Superior Court. He pleaded guilty to the remaining nine counts (Utter Death Threats x4, Probation Breach x4, and Criminal Harassment).

[4] Before the pleas were entered the defendant was informed by the Crown that a dangerous offender application would be sought regarding the Criminal Harassment count and, possibly, if convicted in Superior Court, on one or more of the serious counts to be tried in that forum. An extensive plea comprehension hearing was conducted.

[5] The defendant's trial was held in Superior Court on February 27, 28 and March 1, 2017 in front of Akhtar, J. (R. v. Francis, 2017 ONSC 1505). He pleaded not guilty to three counts of Attempted Murder and one count of Attempted Possess a Prohibited Firearm. Justice Akhtar, in a judgment released March 6, 2017, found the defendant not guilty of the three counts of Attempted Murder, but guilty on the firearm count. Justice Akhtar concluded that while Francis had the requisite mens rea for the offences of Attempted Murder, the actus reus had not been established by the Crown (essentially that he had not acted beyond preparation). However, on the firearm count, Mr. Francis was found to have completed his Attempted Possess Firearm on May 31, 2012, when he instructed PC Grewal (the undercover officer) to see if he could obtain a "burner".

[6] I am told by the Crown that the Dangerous Offender application originally planned for Superior Court was abandoned when the possible predicate offences (Attempted Murder x3) resulted in a finding of not guilty.

Agreed Statement of Facts

[7] Since the facts are lengthy and complex, an Agreed Statement of Facts was filed as Exhibit 1. Mr. Francis presented a document (Exhibit 2) which contained his corrections and Ms. Pancer incorporated those alterations into an amended Agreed Statement. I will reproduce that Agreed Statement here. I must add that, in spite of an opportunity accorded to correct obvious minor errors, Exhibit 1 shall be reproduced verbatim:

From August until early September 2010 Sanjay Francis and Ms. MacLean were dating. On September 6th, Ms. MacLean broke up with Mr. Francis over the telephone after an assaultive incident took place between them. After she broke up with him, Mr. Francis made several attempts to apologize for his behaviour and tried to convince Ms. MacLean to take him back. She refused. He then began to threaten to kill her.

As a result of the threats and fearing for her safety, Ms. MacLean called the police. Mr. Francis was arrested on September 16th, 2010 and charged with a number of offences in relation to Ms. MacLean.

On November 4th, 2010, Mr. Francis pled guilty to one count of mischief, one count of assault with a weapon, one count of utter death threats and one count of criminal harassment. The assault with the weapon was a phonebook that Mr. Francis threw at Ms. MacLean. She was not hit with the phonebook.

Mr. Francis was sentenced to 6 months jail concurrent on all counts less 50 days PTC on a 1 for 1 basis and 3 years' probation with the following terms:

• not to have any contact directly or indirectly with Ms. MacLean or any members of her immediate family and ex-husband
• not to be within 100 metres of anywhere Ms. MacLean or any members of her immediate family including her ex-husband, live work or might reasonably be expected to be
• he was ordered to keep the peace and be of good behaviour.

In addition to these terms he was placed on a 10 year prohibition order.

On June 11th, 2011 Mr. Francis was charged once again in relation to Ms. MacLean. On May 3rd, 2012, Mr. Francis pled guilty to two counts in relation to those charges: fail to comply probation and criminal harassment.

The allegations for the breach of probation were that he failed to report to probation as required. The criminal harassment count was in relation to his communicating with Ms. MacLean when he was ordered not to do so.

Mr. Francis had been charged with aggravated assault. At the time of his guilty plea he had been found not guilty of the aggravated assault. The pretrial custody from his aggravated assault was used towards his guilty plea.

He received 341 days PTC and one additional day for each count. He was again put on a period of probation, this time for 18 months with the same terms as the earlier probation, along with a second 10 year firearms prohibition order.

He was then released from custody.

Soon thereafter police received information that Sanjay Francis was trying to locate Ms. MacLean and that he had formed a plan that he was going to shoot her and kill her children.

On May 22nd, 2012 Ms. MacLean attended 51 Division and provided a statement.

Ms. MacLean advised police that after Mr. Francis was arrested in 2011 she changed her Facebook account name and removed her photograph, replacing it with a picture of a dog. The name she changed the account to was Alicia McLeod and she did all of this with the hopes that Mr. Francis would not be able to find her when he was released.

She advised the officers that since Mr. Francis had been released from custody on May 3rd, she had received 3 requests from a Facebook account with the same name, Alisha McLeod. One request came on May 13th and 2 subsequent requests came on May 18th, 2012. Ms. MacLean believed this was a mirror account created by Sanjay Francis and she believed this because this was the same thing he had done in June 2011 when she was staying with her sister. Mr. Francis disagreed with this.

These requests were sent to an account named FeMac. This account had been set up by Ms. MacLean for the sole purpose of telling Mr. Francis to leave her alone. She had not ever contacted anyone else through this account and believed when she received the friend request that it was coming from Mr. Francis. The photograph attached to this mirror account was a picture of Ms. MacLean.

In addition to sending the friend requests to Ms. MacLean, Mr. Francis also sent requests to 3 of Ms. MacLean's friends and relatives using this account. These friends and relatives originally believed that the request had come from Ms. MacLean but after speaking to Ms. MacLean's sister, they realized that it hadn't.

At the same time as this was going on, Mr. Francis had a facebook account in his own name. The photograph on the faceplate of this account was one of Ms. MacLean and Mr. Francis standing in front of a helicopter.

As a result of this information, Ms. MacLean and her family were placed into the Witness Protection Program.

On July 2nd, Sanjay Francis signed into the mirrored Alisha McLeod account – in the favourite quotation section of the account he posted the following "there are worse things out there than death and you're going to pay for the lies you told".

On July 3rd, 2012 Sanjay Francis again signed into the Alisha McLeod account and in the "about Alisha" section, he posted the following "when I find you I'm going to kill your kids in front of you and you will live with the fact that they are dead because of the lies you told".

On July 4th, 2012, Sanjay Francis the same posting was located on the Alisha McLeod account and in the "about Alisha" section, he posted the following "when I find you I'm going to kill your kids in front of you and you will live with the fact that they are dead because of the lies you told".

As a result of the above information, police initiated an undercover operation. On May 30th 2012 an undercover officer DC Grewal made contact with Mr. Francis. During the meeting Mr. Francis told the officer that he was actively looking for a gun to take care of business. He told him about a beautiful woman he had met but that she had fucked him and that people here are rats. He advised that he was charged for grabbing her by the arm and kicking her out of his apartment. He then said that he was trying to get a firearm but that they were expensive here. During the course of the conversation Mr. Francis gave the impression to the officer, that after he "took care of business" he would end his life. A second meeting was set up for the next day.

On Thursday May 31st, 2012 a second meeting took place between Mr. Francis and the undercover officer. Mr. Francis indicated that he wanted a new clean handgun and ammunition. He did not specify about the type of gun he wanted. He also stated that he may sell his passport for $5000 cash.

As a result of the information obtained a one party consent was authorized.

On Wednesday June 6th 2012 Mr Francis met again with the undercover officer. This conversation was recorded. During the course of their conversation he spoke directly about Ms. MacLean and her 3 children. During this meeting he showed knowledge of guns and certain types of guns. It was also during this meeting that Mr Francis talked about Ms. MacLean getting what is coming to her.

On Wednesday June 13th, 2012 Mr. Francis and the officer met once again. This conversation was also recorded. During the course of their conversation, Mr. Francis asked the officer if he knew anyone that looked like him. He stated that he could sell that person his passport. The officer asked him how much he wanted for the passport and he advised he wanted it as an exchange for the firearm.

July 11th, 2012, Mr. Francis again met with the undercover officer, this conversation was also recorded. During the course of the conversation when the undercover asked him about "the girl he was looking for" Mr. Francis advised that she would be dealt with. He stated that he had done his homework and believed he could find her. He stated that he hadn't started looking for her yet, but that he had other people looking for her. He told the officer her name and about her three children. During the meeting he provided the officer with the names and ages of Mr. MacLean's three children and asked the officer if he had any contact with the school board. He advised that the addresses where the children would be living would most likely be under their mothers name and this would be the best way for him to find him.

He advised the officer that he had the date of births of the children at home and that he would text them to him when he got home that date. Mr. Francis advised that he wanted to make Ms. MacLean suffer, that his plan was to kill her three children as this would be the most painful thing for her and that was the only way to make her suffer. He stated that she would wish she was dead and she would have to live with that for the rest of her life.

On July 11th, 2012 Mr. Francis was arrested. A search warrant was executed at 27 Gamble Avenue, apartment 203. A computer, iPhone and documents were seized as part of the warrant.

Documents were found, pictures were found, letters etc. Police located pieces of paper that had Ms. MacLean's address and phone number, her sister's address and phone number, the names of Ms. MacLean's children and their date of births and the name of her ex-husband.

In addition the police located a sheet of paper that listed Ms. MacLean's name and address, her sister's name and address, the make and model of two firearms and government agencies that could be used to locate Ms. MacLean. Police also located a letter sent to someone requesting his or her help in locating Ms. MacLean, ways that he or she could go about doing so and a request that the person send it along to anyone else for assistance.

The computer was seized and analyzed and there were numerous internet searches for Ms. MacLean, her children, her sister and firearms.

[8] Mr. Francis took some objection to Exhibit 1. He wanted the Court to know that he felt the complainant had provoked, or set him up, in 2011. He felt the July 3 and July 4 Facebook postings were actually just one posting. The Crown accepted those alterations. He conceded that it was him who spoke with the undercover officer (Constable Grewal) on May 30, 31, June 6 and July 11, 2012, but not June 13. A Gardiner hearing was conducted to examine the evidence that supported that it was the defendant speaking on June 13.

The Gardiner Hearing

[9] The need for a Gardiner hearing was puzzling. The Crown agreed that no threats were made on June 13. The defendant's jeopardy would not be limited by any potential finding that it was, in fact, not him who spoke to the undercover officer on June 13. In my view, it makes no difference, but I am asked to determine if the Crown has proven that aggravating feature beyond a reasonable doubt. I find, overwhelmingly, that the Crown has done so.

[10] PC Grewal testified that the person he spoke with on June 13 was the defendant. The defendant did not testify. I would have had no hesitation accepting Grewal's uncontested evidence, even if there had been no confirmatory evidence. But here, there was plenty:

• The subject matter on June 13, among other small talk, was guns and performance enhancing drugs (consistent with the other conversations to which the defendant admitted participation).
• The specific guns spoken about (see page 57 of the transcript) are exactly the same as those guns listed on a document found in the defendant's apartment.
• A probation officer confirmed the defendant's attendance at 920 Yonge Street (probation office) that day, which is exactly where Grewal said the conversation took place.

[11] Although not directly relevant to my determination, I take notice that Akhtar, J. came to the same determination in the defendant's Superior Court trial. (R. v. Francis, supra, at paragraph 17). That decision was filed as part of Exhibit 12 in this application.

Dangerous Offender Application

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

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

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

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

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

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

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

[13] Ms. Pancer, in submissions, conceded that Crown has the onus of proof beyond a reasonable doubt to establish that Mr. Francis meets the definition of a dangerous offender.

[14] The Crown called five witnesses on this application:

• Nikki Landrio (former intimate partner in the U.S. from 1999-2009)
• Ion Ilie (court officer at Superior Court)
• Dr. Phillip Klassen (forensic psychiatrist)
• Meaghan Jones (parole officer, Correctional Services Canada)
• Neil Seepersaad (probation officer)

In addition, the Crown filed a data stick, on consent, which contained electronic versions of 34 documents, as Exhibit 12, as well as numerous other documents. The defendant filed documents but called no viva voce evidence.

[15] I found all witnesses to be credible and reliable. Mr. Lewandowski challenged Ms. Landrio on her negative characterization of her 10-year relationship with the defendant. Cross-examination revealed that Ms. Landrio, at various times, even after deportation, had strong feelings for Mr. Francis. That recognised, I accept her evidence that she was, in the final analysis, consumed by fear both now, and throughout the majority of their relationship.

[16] All but two documents were filed on consent. Those challenged documents (Sagamore Children's Psychiatric Centre and a Suffolk Country transcript) were historical records from the U.S. I find them to be admissible, not only under s. 23 and s. 30 of the Canada Evidence Act, but also as credible evidence on a sentencing hearing. However, I did not place any weight on the details of any of the American records given their age and unusual format. The American records were helpful only to give broad outlines regarding the defendant's antecedents.

Serious Personal Injury Offence

[17] A serious personal injury offence (SPIO) is defined in s. 752:

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

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

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

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

(b) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault).

[18] The case of R. v. Cook, 2013 ONCA 467, uncovers an unusual situation wherein the Ontario Court of Appeal considers, ab initio, the definition of SPIO (given that the sentencing judge did not allow submissions). Mr. Cook threatened to kill his sister and assault his mother and to slit his brother's throat. This caused his sister to hide with her daughter in the basement of the family home when the defendant banged on the front door. Although there was a history of abuse, the threats occurred over a two-day period in August, 2004. The Court found Mr. Cook's conduct likely to cause severe psychological harm.

[19] In the case before me, Mr. Francis's conduct caused Ms. MacLean to enter the Witness Protection Programme (WPP), and the police to engage in an undercover operation. In my view, the conduct of Mr. Francis far exceeded that of Mr. Cook in demonstrating a likelihood of inflicting severe psychological harm. His conduct actually inflicted severe psychological harm. The full breadth of that harm is displayed in the Victim Impact Statement (see page 27).

[20] In my view, Criminal Harassment, in this case, meets the definition of an SPIO. This is not a close call. The maximum sentence is ten years. The Crown elected by indictment and the defendant's conduct clearly inflicted severe psychological damage upon Ms. MacLean. One can only imagine the extent of the psychological anguish that one would experience from the fear that one's children would be killed in one's presence. As she says near the end of her Victim Impact Statement, "fear is a daily companion".

Repetitive Behaviour Showing Past and Future Inability to Restrain

[21] As indicated in the Agreed Statement of Facts (Exhibit 1), this is the defendant's third Criminal Harassment conviction involving the same complainant, in a time span of approximately 18 months. In November, 2010 he received a six-month jail sentence (after 50 days of pre-trial detention) for Criminal Harassment, along with concurrent six-month sentences for three other offences. In May of 2012, the defendant entered guilty pleas to Criminal Harassment and Breach of Probation after spending 341 days in pre-trial detention; he received a sentence of one day. On both prior sentences a period of probation was ordered with a term to stay away from the complainant. Within weeks he was attempting to initiate contact once again, which led to the frightening social media posts in early July, and his arrest on July 11.

[22] In my view, I don't even need to consider the defendant's behaviour in the United States. I find the defendant's repetitive behaviour regarding Ms. MacLean shows a failure to restrain that behaviour which actually inflicted (not just a likelihood of inflicting) severe psychological damage upon Ms. MacLean. His inability to restrain his past behaviour exhibits a significant likelihood that he will fail to restrain this behaviour in the future. My views are further supported by Mr. Francis's continued insistence that he is in jail because he was "set up" by Ms. MacLean. A letter dated March 14, 2017 (Exhibit 13) from the defendant to Ms. Pancer vividly illustrates his animus towards the complainant, and his view that Ms. MacLean has "masterminded" a plan to have him put back in jail. His plan to make her "pay for the lies she told" resulted from that animus, which does not seem to have abated much in the five years he has been incarcerated.

[23] Although not necessary to my finding, the evidence of Ms. Landrio, who testified via video link from New York, further assists in establishing a pattern of repetitive behaviour. Although it is clear to me that the relationship between the defendant and Ms. Landrio is considerably more nuanced than his relationship with Ms. MacLean, I find the fear expressed by Ms. Landrio was real. I accept that she initiated contact with Mr. Francis when he was living in Canada after deportation from the U.S. I accept that she cared for him and that their relationship was a positive one for substantial periods of time. But, I also accept that his behaviour criminally harassed her through their relationship. I think it is important to acknowledge that, like the complainant in this case, Ms. Landrio also changed her name and tried to hide from the defendant.

[24] Nikki Landrio testified by video link because she feared confronting the defendant in person. Very early in her evidence she was asked why she changed her name from Alethea Pinka, and her answer was to prevent the defendant from locating her. In 2008 Mr. Francis had harassed her and threatened to bomb her employer's office. However, she was unable to prevent contact. He was able to find out that she had changed her name.

[25] Very soon after they met in 1998, Ms. Landrio discussed his "aggressive behaviour" and attempted to end the relationship. Mr. Francis refused to accept the break-up. He threatened to kidnap and rape her 3½ year old daughter and these threats continued at points throughout their relationship. At some early point in the relationship, the defendant punched Ms. Landrio in the face, requiring stitches to close the wound. In the summer of 2006, he bit her, fractured her knee, blackened her eyes and threatened to kill her daughter.

[26] In 2008, another threat to rape her daughter caused Ms. Landrio not only to move residence again, but she felt forced to send her daughter to live with a relative in another state. Finally, with the assistance of her employer, deportation proceedings were initiated, and Mr. Francis was deported to Canada in 2009. Throughout the decade-long relationship, Ms. Landrio had several court-sanctioned protection orders against the defendant (many of which she requested a removal), only to experience the defendant harassing her upon his release from jail. Even after deportation, the defendant threatened to have someone throw acid on her face.

[27] On the other side of the issue, Ms. Landrio admitted their relationship was a good one for significant periods of time during the decade (most particularly 2003-2006). She admitted discussing re-uniting with the defendant in 2011, but maintained she was never serious about coming to Canada. She didn't recall sending several friendly or amorous emails to the defendant in 2011 and 2012 but she confirmed that she held those sentiments and doesn't disagree that she sent them.

[28] Ms. Landrio summarized how the relationship affected her:

I've lived in fear of him for so long that I never realized how afraid and how tortured I had been until he was out of my life. I didn't realize who I had become until he was no longer there. It's been a scary, scary existence not knowing whether he is literally going to follow through with those threats or not.

She is still terrified today.

[29] A pattern of repetitive behaviour must contain enough of the same elements to be able to predict that the offender will likely offend in the same fashion in the future. The offences need not be the same in every detail. (R. v. Hogg, 2011 ONCA 840, at paragraph 40.) The pattern may be made out where there is only one other incident, as long as both display elements of similarity regarding the offender's behaviour. (R. v. Langevin.)

[30] The defendant has a longstanding history of criminally harassing intimate partners, spending time in jail, and then, contrary to court-ordered prohibitions, continuing the threatening behaviour very soon after release. Regarding Ms. MacLean, the defendant acquired three separate findings of guilt for criminal harassment that occurred in less than two years. In addition, he made threats to kill or rape the children of both Ms. Landrio and Ms. MacLean. That pattern established a likelihood of causing severe psychological damage (at the very least) to intimate partners in the future. Add to that, Dr. Klassen scored the defendant on the DVRAG at a number which suggests domestic recidivism probability at 100%.

[31] I easily find, beyond any reasonable doubt, that the defendant meets the requirements of s. 753(1), and accordingly, I must find the defendant to be a dangerous offender.

Persistent Aggressive Behaviour

[32] Since the Crown has established a pattern of repetitive behaviour pursuant to 753(1)(a)(i), it is not necessary to establish the second route into a successful dangerous offender finding – that being a pattern of persistent aggressive behaviour pursuant to 753(1)(a)(ii).

[33] However, to be complete, I could not conclude the Crown established beyond a reasonable doubt a pattern of persistent aggressive behaviour. Mr. Francis has had many periods in his life wherein there appears to be no negative behaviour, and he has shown restraint in terms of aggressiveness on some occasions when his behaviour has attracted criminal sanctions. As a result, I am left with a reasonable doubt attached to the requirements of 753(1)(a)(ii).

[34] The Crown did not pursue this application under 753(1)(a)(iii).

Sentencing

[35] The Crown takes the position that any sentence other than an indeterminate sentence would not adequately protect the public. S. 753 outlines the options available:

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

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

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

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

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

Dr. Phillip Klassen

[36] Dr. Klassen, in his evidence in court and in his report (Exhibit 19), reviewed the defendant's personal and criminal history in both the United States and Canada. He made significant mention throughout that his assessment of the defendant was limited by the defendant's election (on advice of counsel) to not speak to him. Essentially, Mr. Francis's mother decided likewise. Dr. Klassen was able to speak to Ms. Landrio (aka Pinka).

[37] As a result, given the absence of a stronger database, Klassen was of the view that "this gentleman likely suffers from a personality disorder with a mixture of narcissistic and antisocial traits". Mr. Francis appeared to meet the criteria for antisocial personality disorder, which, according to the DSM-5, occurs when an adult displays "a pervasive pattern of disregard for, and violation of, the rights of others, occurring since age 15". He completed the diagnoses section of his report by writing:

I can't exclude the possibility that this gentleman also suffers from borderline personality traits. This gentleman's reported grandiosity, entitlement, interpersonal exploitation, and lack of empathy suggest that he also presents with significant narcissistic personality traits.

U.S. Criminal Antecedents

[38] Mr. Francis is now 40 years old (DOB March 31, 1977). He was born in Canada and is a Canadian citizen. However, he lived in the U.S. from age 2 until his deportation in 2009. Much of his background was identified in numerous American documents referred to by Dr. Klassen in his report. Klassen had met with the defendant in custody on May 15, 2015 but was unable to interview Mr. Francis as he related counsel's advice to not participate in the assessment. Dr. Klassen was unable to interview the defendant's mother for essentially the same reasons. He was, however, able to interview Ms. Landrio (aka Alethea Pinka) regarding their lengthy relationship.

[39] The defendant's U.S. criminal history:

• In 1992, the defendant was first sent to a youth facility for a year in Suffolk County, New York for assaulting his mother. He was referred to treatment but declined.
• The defendant received a 30-day sentence in 1993 for assault. He did not get treatment. He violated in 1994 and 1995 for not presenting for treatment.
• In 1996, he was convicted of assault and breaching probation. Again, he did not present for treatment.
• On January 20, 1998 the defendant accepted a plea bargain in Rhode Island after serving 336 days of pre-trial custody that reduced a more serious charge (Rape) to a felony Assault and three simple Assaults. His 6-year sentence was suspended as he was placed on probation for the remaining 5 years and 26 days. The victim was his girlfriend at a college in Providence.
• In 1999, he was convicted of Criminal Contempt regarding threats to have his girlfriend killed (Ms. Pinka aka Landrio). He violated that probation order.
• In 2006, he received a one-year jail sentence for assaulting a police officer and Criminal Contempt regarding Ms. Pinka.
• In 2008, it appears Mr. Francis was charged regarding Ms. Pinka, but it is unclear what resulted in court.

I must say at this point that it is very difficult, given the form of the U.S. records, to determine the findings made by criminal courts. Defence entered the U.S. criminal record (Exhibit 17) which at times corroborated information from other sources and at other times did not. One prevailing theme regarding his relationship with Ms. Landrio (Pinka) was his disregard for any authority that restricted his contact with her. His anger at losing control would result in threats to Ms. Landrio and her daughter.

Canadian Criminal Antecedents

[40] On November 2, 2010 Mr. Francis entered pleas of guilt to four counts occurring between September 4, 2010 and September 16, 2010 relating to a girlfriend, Felicia MacLean, a woman he had known for less than a month:

1. Assault with a Weapon
2. Mischief
3. Threaten Death
4. Criminal Harassment

[41] According to Justice Taylor's Reasons for Judgment on Sentence delivered November 4, 2010 the defendant admitted to pushing Ms. MacLean during an argument and while holding her against the door, began pounding the wall. After she ran away, he threw a phone book at her (missing). Just before this incident, he had damaged the windshield of her car with his hand. Two days later, and approximately three weeks after they had met, Ms. MacLean told Mr. Francis that the relationship was over. He then began to send text messages alternately threatening her life, and telling her that he loved her. She changed her phone number, but he was able to obtain a new phone number from her mother in the U.K. Approximately 2 weeks later he sent text messages that essentially told her to beware of a silent stalker, indicating at that point that he is trying to stay in touch with her. Justice Taylor sentenced the defendant to six months imprisonment on top of 50 days of pre-trial detention (followed by three years probation). Probation included a non-contact term.

[42] Mr. Francis was released on March 8, 2011 regarding the above charges. He was then arrested in May, 2011 for breaching probation and criminally harassing Ms. MacLean during the two months he was out of custody. Mr. Francis admitted to attending Ms. MacLean's residence and photographing her motor vehicle in the underground parking lot, and that he photographed the complainant's sister's house. He also admitted breaching probation terms of non-contact and reporting (although he was arraigned in one count only). On May 3, 2012, Justice O'Donnell accepted a joint position of one-day (341 days of pre-trial detention) and 18 months probation. Terms of non-contact and non-attendance were imposed.

[43] Shortly after his release on May 3, 2012, the police received information that Mr. Francis was trying to locate Ms. MacLean and that he had formed a plan to shoot her and her children; the chronology of events that lead to Francis's arrest on July 11, 2012, including the meetings with undercover officers is fully developed in Justice Akhtar's judgment in paragraphs 8 to 25. Since the factual background was even more fully explained in that trial than in the extensive Agreed Statement of Facts in this application, I will reproduce those paragraphs:

[8] After being released from custody, police received information that the accused was trying to locate C and that he intended to kill both her and her three young children. As a result, C and her family were placed into the Witness Protection Program (WPP).

[9] Prior to entering the WPP, C informed the police, on 22 May 2012, that after the accused's 2011 arrest, she had amended her Facebook account, changing her name and removing her photograph. C had done this in the hope that the accused would be unable to find her when released from custody. However, C advised officers that since 3 May 2012 – the date of the accused's release - she had received three requests from a Facebook account with the same name as the new account she had set up. The first request arrived on 13 May 2012 with two further requests on May 18 2012. The requests were sent to an account titled FEMAC which had been set up by C for the sole purpose of telling the accused to leave her alone. She had not made contact with any other person through this account and believed the accused to be the person who had sent the friend request. Moreover, the accused had also sent requests to three of C's friends and relatives using the same account. The recipients had originally believed that the request originated from C but were later told that this was not the case as C was in protective custody.

[10] As a result of this information, the police commenced an undercover operation to investigate the accused.

[11] On 2 July 2012, the accused signed into the fictitious account and posted the following message:

"There are worse things out there than death and you are going to pay for the lies that you told"

[12] On 3 July 2012, a second message was posted in the "about" section of the Facebook account. It read:

"When I find you, I'm going to kill your kids in front of you and you will live with the fact that they are dead, because of the lies that you told."

The Undercover Operation

[13] The police strategy was to befriend the accused during scheduled visits to his probation officer. On 30 May 2012, Detective Constable Dharmendra Grewal, met the accused at the probation office situated at 920 Yonge Street in Toronto. Posing as an offender who had to attend his own probation meeting, and introducing himself as a fitness trainer, Grewal engaged the accused in conversation about gyms and steroids.

[14] Taken in by this façade, the accused informed Grewal of the domestic assault charge and the difficulties he had experienced with C including the time that he had spent in custody. The accused told Grewal that C had ended up "fucking him over". The accused continued to refer to C who he felt had "fucked him". He told Grewal that he was going to be "taking care of business" and, after doing so, would leave Canada to "go to a higher place". The accused also enquired about the possibility of obtaining a firearm and specifically mentioned two types of gun: a Cougar and a Taurus.

[15] Grewal met the accused again the next day at a gym where the accused asked whether Grewal knew anyone interested in buying a passport for the sum of $5000 and whether he could obtain a gun. Grewal responded that he would make enquiries.

[16] The two men met again on 6 June 2012. This time, however, Grewal was wearing recording equipment after a judicial authorisation had been obtained. Once again, the accused spoke of his wish to obtain firearms and, at one point pulled out a list of guns which included a Taurus and a Glock. The accused also provided further details of his relationship with C telling Grewal that they had dated for approximately two months and that she had three children. He added that "she'll be dealt with" because he "always finds everybody". The accused told Grewal that he had other people looking for her.

[17] On 13 June 2012, Grewal met the accused again. The subject of the accused's passport and guns resurfaced after Grewal asked the accused if he had looked into the question of getting a "burner". Grewal informed the accused that he had a friend who worked in Windsor and was always getting things "going over the border". The accused informed Grewal that he wanted $5000 for his passport which he would not report stolen. These funds would allow the accused to pay $1500 for the gun and keep the remainder. When asked, by Grewal, how soon he needed the gun, the accused said "I don't need it soon. Like I got other things to take care of. For, that's why this, you know, just see what's out there at the end of the day you know." Later in the conversation, Grewal again raised the subject of guns by telling the accused that he could call his friend in Windsor to get "some prices or some shit like that". The accused replied "Yeah, just see what's out there at the end of the day" and listed the guns that he wanted: a Taurus M Series and the Glock G1, G19 and G22.

[18] On 14 June 2012, Grewal phoned the accused to tell him that he had spoken to his friend in Windsor and was told that he could obtain the guns. On 20 June 2012, Grewal sent a text message to the accused asking if he still "wanted to do the trade". The accused replied the next day saying that he had just got back from Barrie and that he was "no longer doing it anymore." Grewal took this conversation to mean that the accused might be seeking to obtain the gun from another source.

[19] Grewal testified that he had trouble getting hold of the accused after 13 June. However, on 11 July, he and another undercover officer, Sergeant Vijay Shetty met with the accused at his probation office, before going to the Works, a nearby restaurant. Once again, Grewal wore equipment to record their conversation. The accused made clear that he was determined to track C down through her children. Grewal told him that he had a friend working in the Information Technology department at the school board who might be able to discover the children's whereabouts and the accused expressed his willingness to pay for that information. Grewal brought up the earlier text message in which the accused indicated that he had no need of the gun any more. The accused replied that "I know I can get it when I really need it. But I was just trying to like set everything up."

[20] Grewal pretended to phone his friend to locate C's children's whereabouts. During this exchange, the accused provided details of C's previous marriage, and her children's names. After ending this fictitious conversation, Grewal told the accused that his friend might not get the information until the next day. The accused replied that the "friend" would be in a better position if he, the accused provided further details which would be forthcoming. The accused expressed animus towards C, insisting that she had set him up to get arrested for communicating with her on Facebook. The accused exclaimed that "you can't try to set somebody up - and get away with it."

[21] Later on in the conversation, the accused expressly told Grewal that he was going to kill C's children and take his own life. When asked to confirm his intention, the accused remarked "[a]nd that's how she's gonna suffer for the rest. I'm not gonna kill her. I'm gonna do something to her. She's gonna suffer for the rest of her life and she's gonna wish she was dead. I thought it would be more painful than death." When asked again whether there is "no other way you can make her suffer without taking out her kids though?", the accused responded: "Nah it's the best way. That's the best way, ah, mean the most painful way. She's gonna wish she was dead once I'm done with her 'cause she's gonna suffer for the rest of her life with that pain, ah, you know. That's what she, she's gonna have to suffer with and, that, that's even worse than death." Finally, towards the end of the conversation, the accused confirmed that C had three children and when Grewal asked "you're only taking out two?", the accused responded by saying "Oh no, taking out all of them." He then added that this included the youngest child aged one and a half years.

[22] At the end of the conversation, Grewal suggested that the accused send him a text "with those names and shit" and the accused said that he would and that he had to take care of "some things". He added that "I'll work on work on everything and this - get the plans going and this you know take our time at the same time get it done our way that works at best for us". He concluded by saying "we'll move forward and stuff, you know".

The Search of the Accused's Residence

[23] On 11 July 2012, the accused was arrested and a search warrant was executed at his home address of 27 Gamble Avenue in Toronto. The police seized a number of items including a computer, iPhone and various documents including a letter written to an unknown person requesting a search for C and identifying different government agencies that, when searched, might yield her address.

[24] The police found other documents displaying C's home address and number; C's sister's home address and number; the names and dates of birth of all three of C's children; and a piece of paper containing the make and model of a Taurus and a Glock firearm.

[25] Finally, a search of the accused's computer also revealed Internet searches for C, her children and firearms.

Risk Assessment

[44] Dr. Klassen scored the defendant on five actuarial risk assessment tools:

• Psychopathy Checklist-Revised (PCL-R) – 24 (slightly above the mean of North American offenders, or slightly below a moderate score of 26).
• HCR-20 – somewhere between 27 and 31 (moderately high to high score for general violent recidivism).
• VRAG – 13 (similar-scoring individuals recidivate violently at a rate of 58% over 10 years in the community).

Note: Dr. Klassen felt that both the HCR-20 and VRAG relied on older data, which was now likely an overestimate of risk.

• ODARA – 9 (90th percentile of domestic offenders which is in the highest category. Similar-scoring individuals recidivated violently at 70% over 5 years).
• DVRAG – 32 (97th percentile. Similar-scoring individuals recidivated violently at a rate of 100%).

[45] Since the ODARA and DVRAG tools measure the risk of domestic violence recidivism, Dr. Klassen felt that Mr. Francis was at a high risk of domestic violence (and a moderately high risk of any violent behaviour). Regarding severity, Dr. Klassen had this to say at page 20:

This issue of severity is much more difficult to comment on, from a psychiatric perspective; objectively the severity of this gentleman's (hands-on) offending behaviour has, in most instances, been modest, but psychological harm may be substantial.

Risk Management

[46] Dr. Klassen indicates that the actuarial risk tools discussed above will provide only a fixed estimate of risk at a particular point in time. Dynamic variables (use of alcohol and/or drugs, compliance with treatment or supervision, delusion of persecution, expression of antisocial attitudes, education or employment, pro-social relationships, etc.) are thought to be at least theoretically changeable, and are the variables that may be targeted for treatment or supervision.

[47] On page 22 of Exhibit 19, Dr. Klassen writes:

Unfortunately, this gentleman has been, at least thus far, difficult to supervise effectively in the community, and I note that he was described as quite guarded with his probation officer, latterly. Both by his words and his deeds he does not appear to place a great deal of weight on sanctions flowing from his criminal justice involvement. His history of treatment refusal is also not encouraging; I note that he reportedly declined treatment at 15, and age 17 in hospital, didn't present for treatment at age 18, seemingly didn't present for treatment in 1997, at age 20 (on probation), was deemed unsuitable for referral to the PAR program due to values and attitudes in 2012, and rejected Ms. Pinka's suggestion that he might benefit from intervention. Mr. Francis remains untreated.

[48] Dr. Klassen recommends six items to be considered by supervisory authorities both inside and outside a jail setting. He finishes by writing on page 23:

Mr. Francis is now 39 years of age. His period of significant risk for domestic violence extends for, I would submit, for a little greater than another decade. If this gentleman received a substantial fixed sentence, it may be that a lengthy Supervision Order would be sufficient to manage the risk in the community. That being said, I'm of course very concerned about both the persistence of this gentleman's animus, and the rather malignant turn that, it appears, that animus may have taken, with respect to his most recent victim.

Correctional Services Canada

[49] Meaghan Jones, acting supervisor of parole officers for Correctional Services Canada (CSC), provided expert evidence, on consent, regarding the role of CSC in applications such as this one.

[50] If an offender is found to be a dangerous offender, CSC develops a correctional plan. That plan would involve programming to address the offender's particular criminogenic issues both inside the federal penitentiary system, and outside if the offender is subject to an LTSO, or is released by the Parole Board from serving an indeterminate sentence. It is the Parole Board that determines the discretionary conditions of release when the offender becomes subject to an LTSO. Some basic conditions are mandatory.

[51] If an offender has refused programming (i.e. treatment) while incarcerated, attendance can be required as a condition of release by the Parole Board. If the offender is subject to an LTSO, the residence condition for the first year (assessed yearly thereafter) could be at a community correctional centre (CCC) which is essentially a fully staffed, 24 hour, institutional residence with security cameras. Electronic monitoring is available; offenders must obey curfews, random searches, and staff monitoring their whereabouts when they are not at the CCC. Other requirements might include treatment, reporting relationships, non-contact with certain individuals, abstention from intoxicants, and boundary restrictions to name a few.

[52] If an offender did not comply with conditions set out by the Parole Board, a warrant of suspension and apprehension could be issued. That same warrant could also be issued to prevent a breach or to protect society. Even if the police do not charge the offender with a breach under s. 753.3, CRC can suspend the LTSO, and return the offender to custody for up to 90 days. If convicted of a breach of an LTSO under s. 753.01, after requesting an assessment, the Crown could then apply for an indeterminate sentence.

Probation

[53] Neil Seepersaad first met Mr. Francis at the probation office on March 21, 2011. Mr. Francis had been assessed for intensive supervision and the probation order was reviewed, including the non-contact condition regarding Ms. MacLean, and the required attendance at the Partner Abuse Response program (PAR). Mr. Francis told Seepersaad that he would attend but not participate. Within two months Mr. Francis re-offended, was placed in jail for 341 days, and reported again in May of 2012.

[54] After Mr. Francis phoned Mr. Seepersaad in June, 2012 to inquire as to why police had attended the condominium he was staying at, Seepersaad noticed a change in demeanour. Francis appeared more guarded and edgy. On July 11, 2012 Mr. Francis "raged" about the unfairness of the judicial system in Canada, and his lack of respect for it. He felt he had been arrested because Ms. MacLean had set him up, and said that if his name ever came up in the news it was because he had to do what he had to do, and that he was not afraid.

[55] In cross-examination, Mr. Seepersaad agreed that he had received erroneous information from another probation officer regarding Mr. Francis being wanted in the U.S. for rape, harassment and aggravated assault just before he first met him in March, 2011.

Reasonable Expectation

[56] As indicated earlier, the Criminal Code mandates that once a dangerous offender finding is made, an indeterminate jail sentence is presumed unless, in the evidence, there exists a reasonable expectation that a lesser sentence will adequately protect the public (753(4.1)).

[57] A recent case in the Ontario Court of Appeal dealt with the reasonable expectation standard as distinguished from the reasonable possibility concept expressed in the predecessor legislation (R. v. M.L., 2015 ONCA 482). Huscroft J.A. writes the following:

[22] I note that the "reasonable possibility" standard was used at the dangerous offender hearing by agreement of the parties. The Criminal Code, R.S.C. 1985, c. C-46 was amended in 2008 and as a result, under s. 753(4)(b) or (c), a sentence of detention in a penitentiary for an indeterminate period is now required unless there is a "reasonable expectation" that a lesser measure "will adequately protect the public".

[23] This court has not determined whether there is any meaningful distinction between the reasonable possibility and reasonable expectation standards. However, several courts have held that the "reasonable expectation" standard is more exacting than the former "reasonable possibility" threshold: see R. v. Osborne, 2014 MBCA 73, 306 Man. R. (2d) 276, at paras. 72-73, and the cases cited therein.

[24] The difference between the standards was not argued in this case and it is not necessary to determine the matter for purposes of this appeal. The appellant did not argue that he had been disadvantaged by application of the reasonable possibility standard and there is no reason to assume that he was in fact disadvantaged. On the contrary, it is arguable that the reasonable expectation standard is more difficult to meet than the reasonable possibility standard. To the extent that this is so, I agree with the Crown's submission that the application of the reasonable possibility standard inured to the benefit of the appellant.

[58] I note that in that case, defence had retained a forensic psychiatrist (Dr. Gojer), who gave an opinion that if M.L. received treatment in the penitentiary and all of his recommendations were put in place upon release, it would be theoretically possible to control the risk posed by the offender within 10 years. Gojer expressed his opinion in his report that there was a reasonable possibility of eventual control. The sentencing judge concluded otherwise and the indeterminate sentence was upheld by the Court of Appeal as "not unreasonable".

[59] In my view, in this case, the high watermark for reasonable possibility (or even the possibly higher standard of reasonable expectation) is Dr. Klassen's view underlined above in paragraph 43 which is a possibility, tempered by a concern of grave danger.

[60] Mr. Lewandowski submitted, on the issue of domestic violence risk assessment tools placing the defendant in the high risk category, that Dr. Klassen indicates that the tools cannot predict the degree of violence that can be expected. He submits that Mr. Francis has shown restraint regarding physical assault in his most recent domestic offending. Dr. Klassen agrees, writing that, objectively, Mr. Francis's "hands-on" offending behaviour has, in most instances, been modest but psychological harm may be substantial.

Fit and Justice Sentence

[61] Under the dangerous offender legislation that existed in Canada between 1997 and 2008, the Court had a discretion to decline to find an offender to be a dangerous offender even if it was satisfied the conditions precedent were proved beyond a reasonable doubt. Once a dangerous offender finding had been made, an indeterminate sentence was mandatory. Post 2008, the discretion has been removed at the dangerous offender stage, and placed in s. 753(4), which allows for the above-mentioned three options.

[62] The Supreme Court of Canada in R. v. Johnson, 2003 SCC 46, outlined a number of principles underlying applications such as this at paragraph 19-24 (again, understanding that at that time, judicial discretion was placed at a different stage of the application):

19 In R. v. Lyons, [1987] 2 S.C.R. 309, this Court affirmed that the primary purpose of the dangerous offender regime is the protection of the public: see also Re Moore and The Queen (1984), 10 C.C.C. (3d) 306 (Ont. H.C.), cited with approval in Lyons, supra, at p. 329. In Lyons, La Forest J. explained that preventive detention under the dangerous offender regime goes beyond what is justified on a "just deserts" rationale based on the reasoning that in a given case, the nature of the crime and the circumstances of the offender call for the elevation of the goal of protection of the public over the other purposes of sentencing. La Forest J. confirmed, at p. 339, that the legislation was designed "to carefully define a very small group of offenders whose personal characteristics and particular circumstances militate strenuously in favour of preventive incarceration".

20 Indeterminate detention under the dangerous offender regime is warranted only insofar as it actually serves the purpose of protecting the public. As we discuss more thoroughly below, there may be circumstances in which an offender meets the statutory criteria for a dangerous offender designation but the goal of protecting the public can be achieved without indeterminate detention. An interpretation of the dangerous offender provisions that would require a sentencing judge to declare an offender dangerous and sentence him or her to an indeterminate period of detention in each instance in which the statutory criteria for a dangerous offender designation have been satisfied would introduce an unnecessary rigidity into the process and overshoot the public protection purpose of the dangerous offender regime.

21 Nor is there anything in the purposes of the sentencing regime as a whole, as set out both in the decisions of this Court and in ss. 718 to 718.2 of the Criminal Code, which would indicate a duty to find an offender dangerous in each circumstance in which the statutory criteria are met. On the contrary, the underlying objectives of the sentencing regime, of which the dangerous offender provisions form a part, indicate a discretion to impose a just and fit sentence in the circumstances of the individual case.

22 In R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, Lamer C.J., writing for the Court, emphasized, at para. 82, that "sentencing is an individualized process, in which the trial judge has considerable discretion in fashioning a fit sentence". The rationale flows from the principles of sentencing set out in the Criminal Code, including s. 718.1, which states that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender", and s. 718.2(d), which states that an offender "should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances".

23 This Court has previously confirmed that dangerous offender proceedings form part of the sentencing process: see for example R. v. Jones, [1994] 2 S.C.R. 229, at pp. 279-80 and 294-95, and Lyons, supra, at p. 350. As such, their interpretation must be guided by the fundamental purpose and principles of sentencing contained in ss. 718 to 718.2. The role played by the purpose and principles of sentencing in guiding the interpretation of the dangerous offender provisions is reflected in the comments of La Forest J., in Lyons, at p. 329, that preventive detention "simply represents a judgment that the relative importance of the objectives of rehabilitation, deterrence and retribution are greatly attenuated in the circumstances of the individual case, and that of prevention, correspondingly increased".

24 The proposition that a court is under a duty to declare an offender dangerous in each circumstance in which the statutory criteria are satisfied is in direct conflict with the underlying principle that the sentence must be appropriate in the circumstances of the individual case. A rigid rule that each offender who satisfies the statutory criteria in s. 753(1) must be declared dangerous and sentenced to an indeterminate period of detention undermines a sentencing judge's capacity to fashion a sentence that fits the individual circumstances of a given case. Thus, rather than suggesting that a sentencing judge is under an obligation to find an offender dangerous once the statutory criteria are met, the principles and purposes underlying the Criminal Code's sentencing provisions actually favour a sentencing judge's discretion whether to declare an offender dangerous who has met the statutory criteria in s. 753(1).

[63] Importantly, dangerous offender proceedings form part of the sentencing process and their interpretation must be guided by the fundamental purpose and principles of sentencing contained in 718 to 718.2.

Conclusion

[64] Often sentencing determinations involve difficult weighing of competing principles and, in my view, this case represents an excruciating example of that process. Essentially, I must weigh protection of the public against the concept of a proportionate sentence. The fundamental purpose of sentencing is to protect society. The fundamental principle of sentencing is proportionality to the gravity of the offence, and the degree of the offender's responsibility. Here, when looked at simply through that lens, the defendant has spent an extraordinary period of time in jail for what amounts to threats and plans.

[65] In addition, the most concerning element of Francis's criminal conduct was, undoubtedly, his effort to acquire a firearm, in the context of an intent to kill children. He has been sentenced after trial, on that count, to three years. A joint position to accord two years of the defendant's pre-trial detention to that offence (at 1.5 to 1) was accepted by Akhtar, J. Even if I accept the defence position here, the sentence I would impose would have to be close to 4.5 years (again, at 1.5 to1) for Criminal Harassment by uttering death threats. The Crown position obviously is much higher (an indeterminate sentence). Upon initial consideration, it would seem as though my sentence will, especially when totality is considered, be disproportionate to the sentence agreed upon for a more serious aspect of this most disturbing affair.

[66] However, as the Supreme Court of Canada dictated in R. v. Johnson, these proceedings are guided by an elevation of protection of the public, over the other principles of sentencing (at paragraph 19). And, most directly, Parliament mandates that I impose an indeterminate sentence unless there exists within the evidence heard, a reasonable expectation that a lesser sentence will adequately protect the public from a serious personal injury offence.

[67] I take into account the following findings in assessing reasonable expectation of protection:

• Mr. Francis has consistently over the last 25 years refused treatment and essentially remains untreated.
• Mr. Francis has repeatedly violated court orders and any attempts at community supervision.
• Significant jail sentences have been followed by unlawful contact very soon after releases on numerous occasions in two countries.
• This Court has heard nothing from the defendant in this application, or in Dr. Klassen's assessment, regarding even a willingness to change, much less any positive steps to do so.
• In March of 2017, Mr. Francis told Ms. Pancer both in court, and by letter, that he was not going to take probation.
• On the day of his arrest, Mr. Francis told his probation officer that one day if his name comes across the news it would be because he did what he had to do, and he is not afraid.
• On that same day, Mr. Francis told the undercover officer that he was going to kill Ms. MacLean's three children and that leaving her alive would make her suffer for the rest of her life.
• On that same day, the police searched his residence and found evidence that Mr. Francis had been extensively researching firearms and the whereabouts of the children.
• At least one of the risk tools puts domestic recidivism at 100%.

All of this in the context of a man obsessed with retribution, attempting to acquire a firearm, with intent to kill three small children.

[68] The other side of the argument requires that I take the following into consideration:

• The most aggravating feature of the defendant's actions that led to his indictment on 14 counts in July, 2012 was undoubtedly an attempt to acquire a firearm in the context of a stated intent to kill the complainant's children. He was found guilty by Justice Akhtar, and sentenced to three years. While I must consider this conviction in my consideration of a sentence that will adequately protect the public, I must be careful not to sentence him twice for the same offence.
• Since the defendant has been in detention just short of five years, the pre-trial detention remaining, after subtracting two of those years to satisfy the sentence imposed by Akhtar, J., is close to three years. Even if I sentence the defendant to time served, my sentence (involving Facebook death threats) would exceed the sentence agreed to by the prosecution regarding attempting to acquire a firearm.
• The defendant entered pleas of guilt, waiving the need to have the complainant testify (as he had done on the two prior groups of offences involving her), in the context of an awareness that the Crown was pursuing a dangerous offender application.
• The factual underpinnings supporting the offences for which I must sentence the defendant are words and not physical conduct, or "hands-on offences". In fact, virtually all of his offending behaviour involving this complainant, and other ones in the last decade, originate from the defendant's own mouth.
• Justice Akhtar concluded the attempt to acquire a firearm was complete on May 31, 2012. In the next six weeks while still verbalizing his disturbing intentions, he appeared to move away from a desire to purchase a gun. In recorded conversations with Detective Grewal, on June 13 and July 11, and in a text sent June 20, the defendant said that either he is not doing it anymore, or he doesn't need the firearm soon. His computer contained many searches for guns before June 5, 2012 but only one thereafter.
• Control that would be instituted by the Parole Board by way of special conditions attached to an LTSO would generally address risk to public safety and, specifically, risk to the victim and her family. If protection of the public, or compliance with conditions was breached, or even anticipated, the defendant could be arrest and detained. If charged with a breach, he could be subject to an indefinite jail sentence. (See R. v. Hess, 2017 ONCA at paragraphs 59-62.)
• If the concept of specific deterrence by way of the imposition of significant incarceration has any validity, then the equivalent of a four-year penitentiary sentence, served in the difficult conditions of a detention centre, should send an unmistakable message to any offender that criminally harasses by uttering death threats.

[69] As indicated before, R. v. Johnson deals with the predecessor legislation. However, the Supreme Court of Canada indicates the following at paragraph 32:

32 In those instances where both the dangerous and long-term offender provisions are satisfied, it may be that the sentencing sanctions available under the long-term offender provisions are capable of reducing the threat to the life, safety or physical or mental well-being of other persons to an acceptable level. Under s. 753.1(3), long-term offenders are sentenced to a definite term of imprisonment followed by a long-term community supervision order of a maximum of ten years in accordance with the Corrections and Conditional Release Act. Supervision conditions under s. 134.1(2) of the Act may include those that are "reasonable and necessary in order to protect society". The very purpose of a long-term supervision order, then, is to protect society from the threat that the offender currently poses — and to do so without resort to the blunt instrument of indeterminate detention. If the public threat can be reduced to an acceptable level through either a determinate period of detention or a determinate period of detention followed by a long-term supervision order, a sentencing judge cannot properly declare an offender dangerous and sentence him or her to an indeterminate period of detention.

[70] Having concluded the defendant meets the definition of a dangerous offender, only one sentence is available, an indeterminate sentence, unless I am satisfied there exists, in the evidence adduced, a reasonable expectation that a lesser sentence will adequately protect the public against an SPIO by the offender.

[71] By the thinnest of margins, I am satisfied that a sentence of four years (minus available pre-trial detention) followed by a maximum LTSO provides a reasonable expectation of public protection. Dr. Klassen's view that a substantial fixed sentence followed by a lengthy supervision order could manage the risk in the community. That possibility alone does not give me a reasonable expectation. However, when I add the evidence of Ms. Jones regarding the imposition of significant protection conditions by the Parole Board, along with a robust enforcement mechanism that will be in place until Mr. Francis turns 50, I am satisfied that the public can be adequately protected.

[72] Essentially, I find the four-year term I will impose for criminal harassment will provide denunciation and deterrence. The LTSO will provide adequate protection for the public. Not 100% protection, but adequate protection, since that is the legal test. In addition, the LTSO provides an opportunity for rehabilitation. If Mr. Francis truly wants to get on with his life as he told me, he will have that opportunity. He is obviously a bright man, who could do something constructive with his life. But if he violates terms or if he makes no effort to engage, he will be returned to jail, possibly for life.

[73] The breakdown of my sentence on each count is as follows:

1. Criminal Harassment – four years
2. Fail to Comply Probation – six months consecutive to the above sentence
3. Fail to Comply Probation x3 – six months concurrent to number 2 above
4. Threaten Death x4 – Stayed pursuant to R. v. Kienapple.

[74] The 54-month total sentence will be reduced by a credit of 51 months (34 months at 1.5 to 1), which leaves, from this date forward, a three-month jail sentence. The 10-year LTSO follows.

[75] There will be a DNA databank order and a weapons prohibition under s. 109 for life. A victim fine surcharge is mandatory. Since concurrent sentences exist for the Fail to Comply Probation counts, the surcharge will be concurrent.

[76] While the Parole Board has the final say, I echo the recommendations made by Dr. Klassen in his report (Exhibit 19). In addition, I recommend obvious protective terms regarding non-contact and non-attendance, and strict monitoring of the defendant's movements (possibly electronic) for at least some period of time. There also will be a term that Mr. Francis not possess any weapons as defined by the Criminal Code.

Victim Impact Statement

Ms. MacLean's Victim Impact Statement referenced in paragraph 19.

Emotional Impact

My life has become a complicated series of lies and a web of secrets. Even the most innocent and simple things are now so complicated. Dangerous.

What's your name? Lie. Where are you from? Lie. Every conversation is a powder keg of potential exposure. A slip of the tongue and it all comes crashing down.

I entered the program for safety, security and peace of mind. The price I had to pay has created a debt I will spend the rest of my life paying. And while I may have safety and security, peace of mind is elusive. Losing my name was the first blow. Stripping away all sense of identity -- the most basic truth of who I was, gone. I can't tell you how painful that was although when contrasted to everything else, that step was the easy part. Next, I had to sever connection with everyone I held dear. All of my friends. My mother. My sisters. I sacrificed all of those important and vital connections to family. Gone.

Before this, my twin sister and I had never been apart. Now every birthday, every Christmas and Thanksgiving I am reminded that half of me is missing. Four long years and it hasn't become any easier to tolerate. To cope. I'm alone because even with those I've come to know in my new life - they can never really know me and so I'm always isolated. It's hell. And exhausting.

But for all of my emotional pain, I am not the only one suffering in this nightmare - my children have had to make all of the same sacrifices and losses. I also shoulder their hurt and frustration when I have to constantly explain why they can't see their Aunt or cousin, their grandmother or friends. Over the years the questions have lessened, but that pain will always linger.

Physical Impact

Stress manifests in a variety of ways. In my case, it has come in the form of hair loss, and in the earliest years, an eating disorder. I couldn't sleep. I couldn't eat. My spirit was almost broken and it's taken years to pull myself out of that dark place. To reshape the broken fragments of my life to create a semblance of normalcy. I can't say I'll ever feel normal again, but I do what I can to try.

Economic Impact

Anything that would lead to potential identification, I had to give up. My car, My pension, Government benefits, RRSP's, all of my financial history/credit with banks/financial institutions was wiped out - I had had to start at ground zero, so that even acquiring a new credit card or opening an account for a cell phone was near impossible due to my lack of credit history. My biggest dream was to buy a home for me and my girls, a dream I worked hard to save towards and to maintain a certain credibility with the banks to ensure I would qualify and now have to put on hold for at least another few more years.

Getting a job in the early days was exceedingly difficult. My resume was rendered useless along with all job history, references, educational certificates/diplomas as they all connected to my old life. It took me two years to secure gainful employment.

I've had to pay for a couple of years of therapy not only for myself but for my eldest daughter who was impacted the most out of all of my children, because like me - she remembers life 'before' this incident and has had great difficulty adjusting to the realities of life 'after' this incident.

Fears for Security

Fear is a daily companion. I've grown to know it so well, I almost don't even remember what it felt like to not wake up every day afraid. Whenever a guy approaches me, whether it's because he's interested and wants to ask me on a date, or only wants to know the time, I am overwhelmed with fear. Could he hurt me too? Will this happen to me all over again? And the worst is if the guy bears any resemblance to Sanjay -- I immediately go into the shock of panic that can lead me into a dark, downward spiral to rock bottom.

"Felicia MacLean" April 4, 2016

Released: May 15, 2017

Signed: Justice Blouin