Court Information

Court: Ontario Court of Justice

Date: December 19, 2017

Court File No.: Toronto Region 15-55006263

Between:

Her Majesty the Queen

— AND —

Nigel Jordan

Before: Justice A. Tuck-Jackson

Counsel:

• M. Wilson, for the Crown
• A. Bryant, for the accused Nigel Jordan

Heard: In Writing (Multiple dates: March 9, 10, April 7, 18, 21, June 29, September 27, 2016; February 13, 15, March 2, 15, April 24, May 4, September 6, 21, October 4, 18, 30, 31, November 1, 2, 3, 6, 8, December 6, 2017)

Reasons for Judgment released: December 19, 2017

TUCK-JACKSON J.:

1: OVERVIEW

[1] Nigel Jordan appears before me for sentencing following a trial that concluded in findings of guilt for failing to comply with a term of a probation order (count 1), breaking into and entering a dwelling house and, therein, committing the indictable offence of mischief to property (count 2), assault (count 3), and, of most significance, forcible seizure (count 4). On the basis of the principles that the Supreme Court of Canada established in R. v. Kienapple, [1975] 1 S.C.R. 729, and at the request of both parties, I stayed the proceedings in relation to the count of assault.

[2] This collection of offences arises from a series of events that took place on August 4, 2015 involving Lisa Southwind. She is the mother of Mr. Jordan's youngest child and, from time to time, has been his romantic partner. In the past, she has been the victim of violence at Mr. Jordan's hands. That victimization has led to various additional entries on Mr. Jordan's criminal record. Indeed, in the area of intimate partner violence, Mr. Jordan's criminal record contains entries for violence against two additional domestic partners.

[3] At the conclusion of the trial, Ms. Fineberg, on behalf of the prosecution, indicated that the Crown intended to apply for an order, pursuant to § 752.1(1) of the Criminal Code, requiring that Mr. Jordan submit to an assessment performed by an expert for use as evidence in an application under § 753 or 753.1 of the Code in relation to sentencing proceedings for, in particular, the count of forcible seizure, an offence that amounts to a "serious personal injury offence", as contemplated by § 752 of the Code. On the strength of the Attorney General's consent, Mr. Wilson, on behalf of the Crown, ultimately proceeded with an application under § 753.1 of the Criminal Code (herein referred to as "the Long-Term Offender application").

[4] By way of sentence, and in light of the conviction for forcible seizure, the Crown seeks an order declaring Mr. Jordan a Long-Term Offender. Further, the Crown seeks a global period of custody of 30 months. In particular, the Crown seeks a custodial sentence of 30 months in relation to the count of forcible seizure, a custodial sentence of 24 months in relation to the count of failing to comply with a probation order (to be served concurrently), and a custodial sentence of 18 months in relation to the count of breaking and entering into a dwelling house and committing therein the offence of mischief (to be served concurrently). In addition, the Crown seeks an eight-year long-term supervision order, as contemplated by § 753.1(3) of the Code in relation to the count of forcible seizure. By way of ancillary orders, the Crown seeks a lifetime weapons prohibition, pursuant to § 109 of the Code for count 4, and an order authorizing the taking of a DNA sample for counts 2 and 4. To date, Mr. Jordan has served two years, four months, and 16 days (or a total of 869 days) of pre-sentence detention. It is common ground between the parties that, pursuant to § 719(3) and (3.1) of the Criminal Code, I ought to apply 1.5 days' credit to each day that Mr. Jordan has spent in custody. Accordingly, he has served the equivalent of three years, six months and 24 days (or a total of 1,304 days) of pre-sentence detention. The Crown acknowledges that Mr. Jordan is in what is often referred to as a "time served" position. However, in light of the testimony of Sherri Rousell of Correctional Services Canada, he is asking that I impose a 90-day custodial sentence so that the correctional authorities have an adequate opportunity to prepare for Mr. Jordan's supervision within the community under a long-term supervision order.

[5] In contrast, it is the position of the defence that Mr. Jordan ought to receive a global custodial sentence of 18 months to two years, less a day. In particular, Mr. Bryant on behalf of Mr. Jordan seeks an 18-month to two years, less a day custodial sentence for the count of forcible seizure and concurrent custodial sentences of 18 months on each of the remaining two counts. The defence further invites the court to impose a three-year period of probation. In light of credit for pre-sentence detention, the defence is, effectively, recommending a suspended sentence, followed by a period of probation. The defence takes no issue with the appropriateness of the ancillary orders that the Crown seeks. The defence resists the Crown's application under Part XXIV of the Code on the basis that the count of forcible seizure ought not to attract a custodial sentence of two years or more. Further, it contends that the risk that Mr. Jordan presents to the community is manageable through the imposition of a probation order.

[6] One juridical day in advance of the commencement of the hearing under § 753.1 of the Criminal Code, the defence served and filed a Notice of Application, wherein it seeks a stay of proceedings on the basis that Mr. Jordan's right to be tried within a reasonable time, as guaranteed by ¶ 11 (b) of the Canadian Charter of Rights and Freedoms has been infringed. The Crown strenuously resists that application.

2: THE APPLICATION TO STAY PROCEEDINGS BY REASON OF UNREASONABLE DELAY

[7] The Information in this matter was laid on August 4, 2015. The proceedings are concluding on December 19, 2017, the date of this judgment. The total delay in this matter amounts to two years, four months, and 16 days.

[8] I am mindful that in my analytical approach to this application, I must consider the entirety of the delay. I cannot assess the reasonableness or unreasonableness of certain blocks of delay. Having said that, I note that the defence takes no issue with the reasonableness of the delay occasioned between the laying of the Information and the date of the verdict, a period of eight months and 15 days. It does, however, take great issue with the reasonableness of the delay following the verdict, a period of one year, eight months, and two days.

[9] Mr. Jordan has been detained in custody throughout these proceedings as a result of these charges. He has never proceeded to a bail hearing. To the extent, if any, that prejudice arising from the delay in this matter is a relevant factor my consideration on the application, the defence has not pointed to any other examples of prejudice endured by Mr. Jordan.

[10] This application has proceeded on the strength of an Agreed Statement of Facts, in the form of table, as to what transpired at each of Mr. Jordan's court appearances before this court and during certain communications amongst counsel between certain court appearances. A copy of that table was marked as Ex. 1 on the Charter application.

2.1: A Summary of the Chronology of the Events

2.1(a): The Events Leading up to the Verdict of Guilt

[11] Nigel Jordan first appeared before the Ontario Court of Justice on August 4, 2015, on the strength of an information laid on the same date, for his bail hearing. The Information contained charges of failing to comply with a probation order, breaking into and entering a dwelling house and therein committing the indictable offence of mischief, assault, forcible seizure, and robbery.

[12] On his second court appearance, namely August 10, 2015, Mr. Jordan confirmed that he had retained Ms. Israel as his counsel and that he intended to proceed to trial before the Ontario Court of Justice without having the benefit of a preliminary inquiry. At that same appearance, the Crown confirmed that initial disclosure of the Crown's case was available. Over the next two months, the case progressed quite efficiently. A pre-trial meeting involving defence and Crown counsel took place on September 1, 2015. A judicial pre-trial meeting took place on October 5, 2015. That same day, a two-day trial was scheduled for March 9 and 10, 2016. The Court could not accommodate the parties any earlier.

[13] On March 9, 2016, Mr. Jordan was arraigned on all counts in the Information. Ms. Fineberg appeared on behalf of the Crown. The calling of evidence commenced in the afternoon. The tendering of evidence concluded on March 10, 2016 and each party made certain concessions regarding the sufficiency of evidence in support of all counts except for the count of forcible seizure. The matter was adjourned to April 7, 2016 for submissions only in relation to the strength of the Crown's case in support of the count of forcible seizure.

[14] On April 7, 2016, the parties concluded their submissions and the matter was adjourned to April 18, 2016 – the first available date to both counsel and myself – for judgment. On that date, Mr. Jordan was found guilty of assault, in addition to the three offences before me for sentencing. Further, Ms. Fineberg advised that the Crown intended to bring an application under § 752.1 of the Criminal Code. Ms. Israel indicated that the defence opposed the application. Ms. Fineberg had already provided materials, in support of the application, to Ms. Israel who, in turn, noted for the record, that she was to be notified about any additional material upon which the Crown intended to rely. By reason of the late hour in the day, no date for the hearing of the application under § 752.1 of the Code could be set. The matter was adjourned to April 21, 2016 for that purpose.

2.1(b): The Events Following the Verdict of Guilt

[15] On April 21, 2016, one of Ms. Fineberg's colleagues advised that June 29, 2016 had been secured for a hearing date for the § 752.1 application. It is unclear on the evidentiary record before me whether this was the first date offered by the court or how the date chosen was influenced by the availability of each counsel.

[16] On June 29, 2016, the application did not proceed. The forensic psychiatrist whom the Crown had arranged to conduct the assessment, in the event that one was ordered, had to be released. This was Dr. Philip Klassen. Ms. Israel advised that the Crown had provided her with a banker's box of materials ten days earlier. Ms. Israel acknowledged that the Crown had not been "sitting on these materials" as Ms. Fineberg had "just received them" and added that she (Ms. Israel) was not suggesting that anybody was "ragging the puck". It is unclear on the evidentiary record before me what amount of the materials received ten days earlier supplemented the documentation that Ms. Israel had received on April 18, 2016. I have no indication of the complexity of those additional materials. Of note, it is equally unclear on the evidentiary record before me to what extent the materials served upon the defence ten days earlier differed from the materials that Ms. Israel received in support of an identical application in relation to Mr. Jordan which proceeded in the spring of 2014 before Kelly J. of this Honourable Court. In any event, Ms. Israel conceded that, by reason of an ongoing commitment to a jury trial, she had been unable to review the materials received ten days in advance of the June 29 hearing date.

[17] With respect to rescheduling the hearing date for the § 752.1 application, Ms. Israel indicated that she would be in court "every day, all day, all summer and in the fall" and that she had "very few days off". She offered one date – September 6, 2016 – as a potential hearing date, but otherwise conceded that her other court commitments rendered her unavailable until November 2016. As it turned out, other court commitments prevented my hearing the matter on September 6, 2016. An eventual date of November 29, 2016 was the first available date for both counsel and myself.

[18] In the interim, Mr. Wilson assumed carriage of the matter from Ms. Fineberg. He was familiar with Mr. Jordan's criminal history; he had appeared on behalf of the Crown during the 2014 hearing of the § 752.1 Criminal Code application. On September 6, 2016, Mr. Wilson advised Ms. Israel of his involvement in the instant proceeding. He inquired as to whether Mr. Jordan would be contesting the upcoming § 752.1 application. Two days later, on September 8, 2016, Ms. Israel informed Mr. Wilson that Mr. Jordan would consent to the Crown's application. They spoke of the forensic psychiatrist who would be selected to conduct the assessment. Mr. Wilson indicated he would look into Dr. Klassen's availability, given the psychiatrist's original willingness to conduct the assessment, but would otherwise select the first available psychiatrist.

[19] On September 9, 2016, Mr. Wilson advised Ms. Israel that Dr. Klassen was available to conduct the assessment, commencing November 1, 2016. Ms. Israel expressed concern over the two-month waiting time and requested that the availability of other psychiatrists be canvassed. On September 23, 2016, Mr. Wilson informed Ms. Israel that the "DO/LTO co-ordinator" had canvassed the availability of all psychiatrists that the Ministry of the Attorney General utilized to conduct assessments under § 752.1 of the Criminal Code and none was available to commence an assessment in advance of November 1, 2016. Mr. Wilson also offered to have the matter addressed before me on September 27, 2016, or any other appropriate date for Ms. Israel.

[20] On September 27, 2016, at the request of the Crown and with the consent of the defence, I made an order directing that Mr. Jordan submit to an assessment under § 752.1 of the Code. The order permitted a 60-day assessment period and was to be conducted by Dr. Klassen. Mr. Wilson suggested that the matter return before me in early January 2017. However, counsel appearing on behalf of Mr. Jordan asked for a series on interim appearances by video with a view to ensuring that Mr. Jordan remain within the jurisdiction. Such appearances are heard in our courthouse's set date courtroom before the presiding Justice of the Peace. Mr. Wilson took no objection to this request. Mr. Wilson added that "if any issue arose", the parties could always bring the matter back before me.

[21] Mr. Jordan did, indeed, make a series of appearances in set date court during the fall of 2016 and into early 2017. Concurrent with those appearances, Dr. Klassen conducted his forensic assessment of Mr. Jordan. It is common ground between the parties that Dr. Klassen interviewed Mr. Jordan on November 25, 2016. He sat down to meet with him for a second occasion on December 15, 2016, but Mr. Jordan advised that he did not wish to continue the assessment without speaking further with Ms. Israel. The second interview came to an end. Later in the morning of December 15, 2016, Dr. Klassen left a message for Ms. Israel, conveying that her client had not wished to continue with the assessment, wished to speak with her first, and inviting her to call him once Mr. Jordan was ready. On the strength of the testimony of Dr. Klassen, together with the Admission Re: Circumstances Surrounding the Communications Between Dr. Philip Klassen and Cydney Israel, Barrister, marked as Ex. 6 on the Long-Term Offender application, I accept that, over the course of the next day or so, Ms. Israel received this message, spoke with Mr. Jordan, and received instructions that he wished to continue with the assessment. I further accept that she left a voice mail message for Dr. Klassen to convey those instructions. Finally, I accept that Dr. Klassen never received that voice mail message. [i]

[22] Dr. Klassen's report was due on January 29, 2017, namely within 30 days following the conclusion of the 60-day assessment period. The day it was due fell on a non-juridical day. By email dated January 27, 2017, addressed to me (via my assistant) and copied to Ms. Israel, Mr. Wilson sought an extension to the next juridical day, namely January 30, 2017. On January 30, 2017, Mr. Wilson requested, once again by email, a further extension, this time to February 3, 2017. This further extension was sought to afford Dr. Klassen some additional time to follow up with collateral sources of information. By email, sent via my assistant, I sought input, from Ms. Israel as to her position regarding the requested extensions. I did not receive a reply. Instead, commencing January 31, 2017, Ms. Israel and Mr. Wilson exchanged a series of emails in relation to the Crown's requests.

[23] On February 15, 2017, the Crown provided the defence with a copy of Dr. Klassen's report, dated February 3, 2017, though Mr. Wilson briefly apprised Ms. Israel of the content of the report as early as February 3, 2017.

[24] The application to extend the filing deadline of the report generated pursuant to § 752.1 of the Criminal Code was ultimately argued before me on March 2, 2017. Over the objection of the defence, I granted the five-day extension that the Crown sought.

[25] That same day, the parties jointly estimated that the hearing of the application would take seven days to complete. There is nothing in the evidentiary record before me as to the parties' availability for the hearing. However, the record does establish that the trial co-ordinator's office offered dates of September 11 – 14 and 26 – 28, 2017. The Ontario Court of Justice Certificate of Trial/Prelim Requirements that is prepared by the trial co-ordinator, and attached to the Information before the court, indicates that these dates were unavailable to the defence. The eventual hearing dates that were set down were October 31 – November 3 and November 14 – 16, 2017. I expressed my concern about the timeliness of the dates and urged that the matter come back before me regularly to see if any earlier dates could be secured. Mr. Wilson also expressed his intention to speak with the Crown Attorney at our location with a view to re-prioritizing the prosecution of certain matters of which I was seized, thereby opening up earlier dates for Mr. Jordan's ongoing matter. [ii] The case was adjourned to March 15, 2017 for a status update in this regard.

[26] On March 15, 2017, an earlier hearing date was not secured. Instead, Ms. Israel successfully applied to be removed from the record as counsel. Ms. Israel was of the view that she had to withdraw as counsel over a concern that she might become a witness at the eventual hearing of the Part XXIV Criminal Code application as to why Dr. Klassen never returned to complete his interview of Mr. Jordan. The Crown took no position on the application. The matter was then adjourned to April 11, 2017 to permit Mr. Jordan to apply to the Ontario Legal Aid Plan for a change in solicitor.

[27] On April 11, 2017, the parties appeared before Di Zio J. of this Honourable Court [iii]. Mr. Wilson advised that Mr. Jordan's application to Legal Aid had been successful and that Ari Goldkind would now be representing Mr. Jordan. Mr. Goldkind was not in attendance. The matter was then adjourned to April 24, 2017 with the hope that a series of hearing dates, earlier than late October and early November, could be secured in the interim.

[28] On April 24, 2017, Mr. Goldkind could not appear to address Mr. Jordan's matter by reason of an ongoing commitment in a homicide case. However, that day he did advise Mr. Wilson by email that he had the following dates available for the hearing under Part XXIV of the Criminal Code:

June 28 29

July 5 6 13 25

Sep 6 7 week of Sep 25 if superior court trial ends early

Oct 10-20

Oct 30 for the week

Mr. Wilson apprised me of these dates. (Mr. Goldkind later agreed on May 4, 2017 that the application, including evidence and submissions, could be completed across seven days. According to the above dates, the earliest block of seven days, clustered relatively close together, fell from October 10 - 20, 2017.) At Mr. Goldkind's request, conveyed through Mr. Wilson, the case was adjourned to May 4, 2017 for the purpose of finalizing the hearing dates.

[29] On May 4, 2017, Mr. Wilson and Mr. Goldkind appeared before me. He confirmed his availability as noted above and added that he was also available for the week commencing November 6, 2017. By reason of my commitment to attend a judicial education conference, I was unavailable between October 10 – 13, 2017 inclusive. I raised the concern that the matter should not be broken up across non-consecutive days and Mr. Goldkind explained that he had "no problem with that". I took that to mean that he was not insisting that the matter be heard on non-consecutive days for the sake of expediting the process. The ongoing availability of the dates set down on March 2, 2017 was revisited. My concern that Mr. Jordan had been detained in custody for a considerable period of time in relation to these charges was noted for the record. Mr. Goldkind responded by stating:

I have instructions. I have a banker's box, you know. I am not going to give you that speech.

I took Mr. Goldkind's comment to mean that Mr. Jordan, at that time, was not complaining about the timing of the hearing dates.

[30] Both counsel attended at the trial co-ordinator's office to see if any earlier date could be secured. I indicated that my non-presiding and vacation days could be re-scheduled if that would assist the parties and the trial co-ordinator in securing a timely block of seven days to hear the matter. The earliest available dates available to both counsel and myself were October 30 – November 3 and November 6 and 8, 2017. The dates of November 14 and 14, 2017 were vacated. Further, on May 4, 2017, Mr. Goldkind confirmed that he did not intend to make any submissions to the Attorney General as to whether the latter should consent to a Part XXIV Criminal Code application in relation to Mr. Jordan. [iv]

[31] On July 28, 2017, the Attorney General granted his consent for the Crown to proceed with an application to have Mr. Jordan declared a Long-Term Offender, pursuant to § 753.1 of the Criminal Code. By letter dated July 31, 2017, Mr. Wilson learned of this development and he conveyed this information to Mr. Goldkind on August 1, 2017.

[32] The hearing of the application under § 753.1 of the Code did, indeed, commence on October 30, 2017, but Mr. Goldkind no longer acted for Mr. Jordan. During the summer of 2017, the relationship between Mr. Jordan and Mr. Goldkind broke down. On August 31, 2017 Di Zio J. [v] removed Mr. Goldkind as counsel of record. However, in advance of the October hearing date, Mr. Jordan was able to retain Mr. Bryant to represent him at the hearing. Mr. Bryant was formally retained on October 20, 2017.

[33] The parties called and filed evidence on October 30, 31, November 1, 2, 3, 6, and 8, 2017. The Crown called Lisa Southwind, Dr. Philip Klassen, Kristin Baker (the victim of a number of Mr. Jordan's previous offences), and Sherri Rousell of Correctional Services Canada). Of note, when the court was not hearing evidence during the allotted days, the parties were working towards the creation of the evidentiary record for the instant application. Ultimately, both counsel wished the opportunity to file written submissions in relation to both the Charter application and the Long-Term Offender application. Both voiced an intention to submit their written submissions by November 24, 2017. Any reply submissions would be submitted by November 27, 2017. I agreed to provide any questions, if any, which arose following my review of those submissions, to counsel by December 1, 2017. Finally, the date of December 6, 2017 was set aside in the event I needed the benefit of additional oral submissions.

[34] By the end of December 6, 2017, the parties had addressed virtually all of the issues that I had raised. I set a judgment date of December 19, 2017. Finally, in response to a residual point that I raised on December 6, Mr. Bryant offered to attempt to pull together some statistics as to the typical duration of Part XXIV proceedings before the Ontario Court of Justice across a specified period of time.

[35] The document, Analysis of Dangerous Offender and Long-Term Offender Cases on QuickLaw Between January 1, 2011-December 8, 2017, which was marked as Ex. 2 on the Charter application, represents the product of Mr. Bryant's analysis. Through a Boolean search of the QuickLaw database, Mr. Bryant canvassed long-term offender and/or dangerous offender cases decided in the Ontario Court of Justice between January 1, 2011 and December 8, 2017. He uncovered 31 cases, 26 of which contained sufficient information to identify the delay between the finding of guilt and the date of sentencing. The crux of his analysis, taken from Ex. 2, is as follows:

…The shortest amount of time was 245 days in the case of R. v. Hamelin. The longest amount of time was 2075 days in the case of R. v. K.G.A. The average amount of time was calculated to be 807 days or approximately 2 years, 2.5 months.

Only three (3) cases were completed within 1 year. Eleven (11) cases were completed between 1 and 2 years. Eight (8) cases were completed between 2 and 3 years. One (1) case was completed between 3 and 4 years. One (1) case was completed between 4 and 5 years. Finally two (2) cases took between 5 and 6 years to complete. [emphasis added]

2.2: Legal Issues

2.2(a): Does ¶ 11(b) of the Charter Apply to Delay that Arises During Sentencing?

[36] Paragraph 11 (b) of the Charter states:

11. Any person charged with an offence has the right

(b) to be tried within a reasonable time;

[37] It is common ground between the parties that the protection afforded by ¶ 11 (b) extends to delay that arises during the sentencing process. Put another way, the word "trial" within ¶ 11 (b) of the Charter can include sentencing proceedings and is not limited to the period that commences with the laying of an Information and ends with a verdict. This joint position is well founded within the case law. In R. v. MacDougall, [1998] S.C.J. No. 74, the Supreme Court of Canada concluded that an accused did, indeed, having standing to seek a stay of proceedings in relation to a total period of delay that includes delay arising from sentencing proceedings. The Court further concluded that the analytical framework employed in R. v. Morin, [1992] S.C.J. No. 25 ought to apply equally to the period of delay occasioned during sentencing proceedings as it would to delay occasioned in advance of those proceedings. Of note, in its application of the law to the facts under consideration, the Supreme Court applied the Morin, supra, framework to the entirety of the delay, commencing with the date on which the Information was laid. Of further note, the Court cautioned that while ¶ 11 (b) of the Charter does include delay in sentencing, the interests engaged by ¶ 11 (b) of the Charter, including liberty, security, and fair trial interests, can, in certain circumstances, be more attenuated than in the pre-conviction phase. (See: R. v. MacDougall, supra, at ¶ 67).

2.2(b): Does the 18-Month Presumptive Ceiling as to Unreasonable Delay Identified in the Supreme Court of Canada's Decision in R. v. Jordan Apply to Part XXIV Proceedings?

[38] The judicial landscape with respect to an application for a stay of proceedings on the basis of a violation of ¶ 11 (b) of the Charter shifted dramatically with the Supreme Court of Canada's decision in R. v. Jordan, 2016 SCC 27, released on July 8, 2016, almost three months following the verdict in the instant case. In short, it represents an unequivocal departure from the analytical approach that the Supreme Court established in Morin, supra.

[39] As was observed by the Ontario Court of Appeal in R. v. Coulter, 2016 ONCA 704, [2016] O.J. No. 5005 (C.A.) at ¶ 31,

The majority in Jordan stated that the Morin framework for s. 11 (b) applications had given rise to both doctrinal and practical problems that contributed to a culture of delay and complacency…

[40] The new framework established in Jordan, supra, may be summarized [vi] as follows:

(1) Calculate the total delay, which is the period from the charge to the actual or anticipated end of the trial;

(2) Subtract defence delay from the total delay, which results in the "Net Delay". Defence delay has two components: (a) that arising from implicit or explicit (but, nonetheless, clear and unequivocal) waiver; and (b) that caused solely by the conduct of the defence. The latter includes situations where the acts of the defence either directly caused the delay or are shown to be a deliberate and calculated tactic employed to delay the trial. Where the court and the Crown are ready to proceed but the defence is not, the defence will have directly caused the delay;

(3) Compare the Net Delay to the presumptive ceiling (18 months for proceedings completed in the Ontario Court of Justice);

(4) If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of one of two exceptional circumstances.

Exceptional circumstances lie outside of the Crown's control in that (a) they are reasonably unforeseeable or reasonably unavoidable; and (b) Crown counsel cannot reasonably remedy the delays emanating from the circumstances once they arise.

Such circumstances need not be rare or entirely uncommon.

The seriousness or gravity of the offence cannot be relied on. Nor can chronic institutional delay or the absence of prejudice to the accused.

In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.

An illustration of a discrete event that will generally qualify is a medical or family emergency on the part of the accused, important witnesses, counsel, or the trial judge.

Particularly complex cases are cases that, because of the nature of the evidence or issues (or both), require an inordinate amount of trial or preparation time such that the delay is justified. The seriousness or gravity of the offence cannot be relied on to establish that the case is particularly complex;

(5) Subtract delay caused by discrete events from the Net Delay (leaving the "Remaining Delay") for the purpose of determining whether the presumptive ceiling has been reached. Any portion of the delay caused by a discrete event that the Crown or system could reasonably have mitigated may not be subtracted;

(6) If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable;

(7) If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish two things: (a) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (b) the case took markedly longer that it reasonably should have. Absent both of these two factors, the application must fail.

Stays beneath the presumptive ceiling should be granted only in clear cases; and

(8) The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released.

[41] The instant case was commenced prior to the release of Jordan, supra. The decision in Jordan, supra, addresses such transitional cases.

[42] The analysis of transitional cases differs depending upon whether the Remaining Delay exceeds or falls below the presumptive ceiling. Where it exceeds the presumptive ceiling, a third exceptional circumstance, known as a transitional exceptional circumstance, applies when the Crown satisfies the court that the time the case took is justified based on the parties' reasonable reliance on the law as it previously existed. This requires a contextual assessment, sensitive to the manner in which the previous framework was applied, and to the fact that the parties' behaviour cannot be judged strictly against a standard of which they had no notice. Considerations of prejudice and the seriousness of the offence can inform whether the parties' reliance on the previous state of the law was reasonable. Moreover, the Remaining Delay may exceed the ceiling because the case is of moderate complexity in a jurisdiction with significant institutional delay problems. Judges in jurisdictions plagued by lengthy, persistent and notorious institutional delays should account for this reality, as Crown counsel's behaviour is constrained by systemic delay issues.

[43] For cases currently in the system in which the Remaining Delay falls below the ceiling, the two things that the defence must establish (i.e., defence initiative and whether the time the case took markedly exceeds what was reasonably required) must also be applied contextually, sensitive to the parties' reliance on the previous state of the law. Further, institutional delay that was reasonably acceptable in the relevant jurisdiction under the Morin framework will be a component of the reasonable time requirements.

[44] This application raises a number of legal issues that remain unaddressed in Jordan.

2.2(b)(i): The Positions of the Parties

[45] It is the position of the Crown that the 18-month presumptive ceiling does not include delay attributable to sentencing proceedings; put another way, the 18-month presumptive ceiling applies only to the period that begins with the laying of the Information and ends with the verdict. At ¶ 14 of his written submissions, Mr. Wilson succinctly argues:

…a sentencing is not a necessary component of every proceeding. Not all matters result in a conviction. If the parties are working with an understanding that the presumptive ceilings of 18 and 30 months [in the case of Superior Court trials] include a sentencing proceeding, the ceilings themselves lose their predictive value. They become artificial points in time from which the parties would have to work backward in order to estimate when a particular trial must be completed in order to accommodate a hypothetical sentencing within the prescribed ceiling..

In support of this position, the Crown relies upon a variety of authorities, including R. v. Eid, 2017 ONSC 892, R. v. Blanchard, 2017 ABQB 369, R. v. Warring, 2017 ABCA 128, R. v. Rhode, 2016 SKQB 330, R. v. Dadmand, 2017 BCSC 1644, R. v. Akumu, 2017 BCSC 896, R. v. Millar, 2016 BCSC 1887, and R. v. Pelletier, 2016 BCSC 2496. Further, Mr. Wilson, on behalf of the Crown, argues that any delay arising from the sentencing proceedings ought to be analyzed, separate and apart from the entirety of the delay, in accordance with the Morin, supra analytical framework. Indeed, in this regard, he urges me to follow the reasoning employed by Pearlman J. in Dadmand, supra, at ¶ 49 – 58, a case that involved a dangerous offender application, wherein the delay arising from the application under Part XXIV of the Criminal Code, and only that period of delay, was assessed in accordance with the Morin, supra framework. Applying this analysis, Mr. Wilson contends that no violation of ¶ 11 (b) of the Charter has occurred.

[46] In the event that I conclude that a presumptive ceiling (and, thus, a Jordan, supra analysis) ought to apply when considering delay attributable to sentencing, Mr. Wilson originally urged me to extend the 18-month presumptive ceiling by 12 months. At ¶ 20 of his written submissions, Mr. Wilson argues:

A dangerous or long-term offender hearing that is conducted at the Ontario Court of Justice mirrors, in all respects, a matter where an accused has a preliminary inquiry and re-elects to have a trial at the Provincial Court of Justice. The same ceiling of 30 months that would apply to those proceedings, as per the Supreme Court in Jordan should be prescribed for the completion of dangerous or long-term offender hearings that are conducted after a single stage trial at the Ontario Court of Justice.

With the benefit of the content of Ex. 2, Mr. Wilson retracted this position. In supplemental submissions, Mr. Wilson wrote:

The Crown has considered the chart of long-term offender and dangerous offender cases at the Ontario Court of Justice submitted today by Mr. Bryant. The cases examined in that chart display an average time from conviction to sentence of 26.5 months, with the majority of those cases completing in 2 - 3 years. In light of this information, the Crown wishes to retract the submission, made in the alternative, that should the Court find that a presumptive ceiling applies to sentencing proceedings in a long-term or dangerous offender application at the Ontario Court of Justice, it should be one of 30 months as opposed to 18 months. Having reviewed the chart submitted by Mr. Bryant, the Crown submits that even a 30 month ceiling would be insufficient time to complete such matters at the Ontario Court of Justice. The Crown continues to rely on the primary submission that the presumptive ceilings in Jordan do not apply to dangerous or long-term offender sentencing proceedings.

[47] In contrast, it is the position of the defence that the 18-month presumptive ceiling does, indeed, include delay attributable to sentencing proceedings and the Crown has not established exceptional circumstances to justify the delay that runs beyond the presumptive ceiling in this case.

[48] In the event that I conclude, within the context of a presumptive ceiling, that it is appropriate to quantify the time that proceedings under Part XXIV of Criminal Code should take, Mr. Bryant urges me to conclude that a ceiling of six months should be set. That additional time ought to run following the date of verdict. Where a verdict is reached 18 months following the laying of the Information, the maximum available presumptive ceiling within the Ontario Court of Justice would, on Mr. Bryant's analysis, be 24 months. Mr. Bryant took this position in advance of his generation of the document that comprises Ex. 2. He has not provided any supplemental submission on this point.

[49] Finally, in the alternative, should I adopt the analysis advocated by the Crown, Mr. Bryant urges me to conclude, as expressed at ¶ 54 of his written submissions, that:

even under a transitional " Morin " and " MacDougall " analysis, much of the non-inherent delay in this case is unjustifiable – attributable to Crown inaction and to institutional limitations – and amounts to much more delay than what was historically permitted by those guidelines.

2.2(b)(ii): Analytical Approaches to Delay Arising During Sentencing under Part XXIV of the Criminal Code in the Post-Jordan Era

[50] At the outset I note that the facts underlying the decision in Jordan, supra, did not involve a sentencing proceeding. Further, the Court offered very little guidance as to the extent to which a presumptive ceiling, let alone an 18-month presumptive ceiling within this level of court, includes delay arising from sentencing proceedings. At footnote 2 within ¶ 49 of its Reasons for Judgment, the Court observed:

This Court has held that s. 11 (b) applies to sentencing proceedings (R. v. MacDougall, [1998] 3 S.C.R. 45). Some sentencing proceedings require significant time, for example, dangerous offender applications or situations in which expert reports are required, or extensive evidence is tendered. The issue of delay in sentencing, however, is not before us, and we make no comment about how this ceiling should apply to s. 11 (b) applications brought after a conviction is entered, or whether additional time should be added to the ceiling in such cases. [emphasis added]

[51] In my respectful view, the content of this footnote supports the inference that an accused person continues to have standing to seek a stay of proceedings in relation to a lengthy prosecution where a portion of that delay is attributable to sentencing proceedings. Put another way, a key aspect of MacDougall, supra remains good law. It further supports the inference that a presumptive ceiling may be adjusted upwards in recognition of sentencing applications that require "significant time" to complete, including Part XXIV proceedings. However, nothing in the footnote supports the inference that the Morin, supra, framework ought to apply to delay arising during sentencing proceedings (as took place in Dadmand, supra). Indeed, the entirety of the judgment in Jordan, supra, stands for an abandonment of the Morin, supra, framework going forward.

[52] I decline to address the issue of whether the 18-month presumptive ceiling established in Jordan, supra, includes delay attributable to sentencing in general, namely, sentencing proceedings governed by Part XXIII of the Criminal Code. That is, indeed, a complex issue and, frankly, not the issue squarely before me. I am, however, prepared to conclude that the 18-month presumptive ceiling does not include delay arising from proceedings commenced under Part XXIV of the Criminal Code. I do so for the following reasons.

[53] An application under Part XXIV of the Criminal Code is akin to a trial that, more often than not, is complex and lengthy. It presents certain predictable parameters. It involves (or, at the very least, frequently involves) the following components, time commitments, and scheduling challenges:

(1) the gathering and subsequent disclosure by the Crown of often voluminous materials, some of which, by virtue of the passage of time, is difficult to access, and some of which, e.g., transcripts of court proceedings, take time to generate, in support of an application under § 752.1 of the Criminal Code;

(2) the defence needs a reasonable period of time to review this material and determine whether a contested hearing need be argued;

(3) as appropriate, time must be set aside to argue an application under § 752.1 of the Code. In scheduling a hearing date, account must be had for the availability of counsel and for the sentencing judge, each of who has ongoing commitments. Of note, with respect to scheduling court time, the courthouse's trial co-ordinator no longer has the flexibility that flows from drawing from a pool of available trial judges. Instead, he or she is constrained by various ongoing and new commitments that the sentencing judge seized of the matter is juggling, in concert with those presented by the subject of the application;

(4) the application under § 752.1 of the Code involves the litigation of a number of legal issues;

(5) in the event that the application is allowed, a forensic psychiatrist must be secured. Such professionals face competing demands within the criminal justice system and elsewhere. An assessment order cannot commence until the forensic psychiatrist is in a position to commence the assessment;

(6) once time has been set aside by an available forensic psychiatrist, the assessment process and generation of a report occurs. This is to take place over the course of no more than 90 days. Given the volume of material to be reviewed and issues to be addressed during such assessments, together with the complexity of those issues, it is understandable that reports are often produced at the far edge of the deadline. Of note, and in recognition of the complexity of the assessment process, § 752.1(3) of the Code permits the sentencing court to extend the period within which the report must be filed by a maximum of 30 days;

(7) once the report has been completed, it must be reviewed by counsel for both parties, the accused, and potentially a forensic psychiatrist previously retained by the accused. A review of it may prompt the defence to retain its own forensic psychiatrist, if it has not previously done so, with a view to having him or her testify at a hearing convened under § 753 or 753.1 of the Criminal Code;

(8) on the strength of the assessment prepared by the forensic psychiatrist, the Crown must write to the Attorney General and seek his or her consent, pursuant to ¶ 754(1)(a) of the Criminal Code, in relation to the instituting of an application under Part XXIV of the Code. Counsel for the accused is entitled to submit representations arguing against the granting of consent;

(9) once the report has been received and digested, time must be set aside for a hearing that can last for a number weeks. The task of scheduling must take into account the availability of witnesses to be called at the hearing, including one or more forensic psychiatrists or other mental health professionals, victims of the accused's predicate or previous offences, staff from Correctional Services of Canada, and any other individuals who can testify to supervision options for the accused within the community or within a custodial setting. The task of scheduling must also take into account the availability of counsel for both parties and the sentencing judge. As noted above, it may prove quite difficult to carve out a lengthy period of time for a particular judge with competing obligations. Time must be set aside for argument in relation to issues of evidentiary admissibility and for final submissions in relation to complicated and numerous factual and legal issues. Finally, scheduling must also take into account time to be set aside for the sentencing judge to consider and prepare what are not infrequently, and relatively speaking, lengthy, Reasons for Judgment; and

(10) the parties cannot proceed with the application immediately upon receipt of the report. Indeed, time must be set aside to permit the parties to prepare for the application. Such preparation includes the interviewing of witnesses, research, and the preparation of examinations and cross-examinations. It also includes the assembly of volumes of records regarding an accused's past criminal history, his or her performance within a custodial setting or while subject to community supervision, and his or her mental health history. As appropriate, time may be needed for the party opposite to review assembled documents with a view to taking a position on their admissibility at the hearing.

[54] With great respect to the contrary view that the defence advances in the instant case, it is unreasonable to expect that, on average, a contested trial before the Ontario Court of Justice of one or more charges, together with an application under Part XXIV of the Criminal Code, will conclude within 18 months of the laying of the Information. I acknowledge that, inevitably, there will be the occasional case where this does occur. Furthermore, I acknowledge that there will be cases where a prosecution up to, and including, a guilty plea, in combination with a Part XXIV proceeding, will be completed within an 18-month period. With respect to the second scenario, the data in Ex. 2 makes this very point.

[55] In keeping with the spirit of the Supreme Court of Canada's direction in Jordan, supra, the parties to a Part XXIV proceeding, together with the sentencing judge, and other participants in the criminal justice system, must operate with the benefit of a clear expectation of timeliness that advances the constitutional interests that ¶ 11 (b) of the Charter seeks to protect, particularly in relation to accused persons who are detained in custody. In my respectful view, there should be a presumptive ceiling that applies to trial proceedings leading up to a finding of guilt (whether the product of a plea of guilt or a contested trial) in combination with Part XXIV proceedings. That ceiling ought to be calculated as follows: the lesser of (1) 18 months and (2) the period of time between the laying of the Information and the finding of guilt, plus two years. This sliding scale approach responds to the reality that some Part XXIV proceedings are in a position to commence earlier than others, and serves as a nod to the direction of the Supreme Court of Canada in Jordan, supra, that a finding of guilt within the Ontario Court of Justice should not be registered more than 18 months following the laying of an Information.

[56] I have determined that two years is an appropriate period during which Part XXIV of the Criminal Code proceedings should conclude within the Ontario Court of Justice for the following reasons:

(1) I have taken into account the average length of a Part XXIV proceeding within the Ontario Court of Justice over the past seven years, as reflected in Ex. 2. That length is two years and two-and-a-half months. It is reasonable to assume that this length of time reflects the reality that such proceedings take a considerable time to prepare for and complete, and, for the reasons mentioned above, are challenging to schedule soon after a finding of guilt is made;

(2) I have taken into account that even where a Crown is successful under a Part XXIV proceeding, an accused who is declared a Long-Term Offender may receive a custodial sentence of no more than two years. It is imperative that the criminal justice system operates in a way that seeks to minimize, as much as is feasible, those instances where an accused serves more pre-sentence detention than what his offence ultimately attracts by way of a custodial sentence; and

(3) I have taken into account that the interests engaged by ¶ 11 (b) of the Charter are somewhat attenuated at the post-conviction phase of the proceedings. I say this because, in relative terms, lengthy custodial sentences are often under consideration, even at the behest of the defence, during Part XXIV proceedings. Pre-sentence detention that runs during such proceedings may be credited, pursuant to § 719(3) and (3.1) of the Criminal Code, against any eventual custodial sentence. In this limited way, liberty interests are somewhat less engaged.

[57] Once the presumptive ceiling has been calculated, the analytical framework set out in Jordan, supra, should be applied to the entirety of the delay.

[58] I respectfully disagree with the approach that was undertaken in Dadmand, supra, and recommended by the Crown in the instant case, for two reasons. The decision appears to rely upon the reasoning employed in MacDougall, supra. However, the Supreme Court in MacDougall, supra, did not suggest that where an issue of unreasonable delay arises as a result of the sentencing phase, the scrutiny of the reviewing Court should be restricted to the period during which the sentencing has proceeded. Focus on one period of delay to the exclusion of others represents an impermissible form of chunking. Rather, MacDougall, supra, requires that a sentencing judge scrutinize the entirety of the delay, beginning with the laying of the Information and concluding with the endpoint of the sentencing proceedings, and to do so in accordance with the (then well-accepted) Morin, supra, framework. Secondly, as noted above, the clear direction that flows from Jordan, supra, is that the Morin, supra, framework is to be abandoned. In my respectful view, it is an all or nothing proposition. I do not see, as a matter of logic, how it follows that one analytical framework ought to apply in respect of delay up to the time of a verdict and a completely different analytical framework ought to apply in respect of delay following a verdict that arises during a Part XXIV proceeding, particularly when the combined delay is generated during the currency of two types of proceedings that, in many ways, share many features in common that impose similar demands on the resources of counsel to the both parties, the court, and other stakeholders within the criminal justice system.

2.2(c): Application of the Law to the Evidence

[59] The period of delay between the laying of the Information and the verdict of guilt amounts to eight months and 15 days. The addition of two years results in a presumptive ceiling, in this case, of 32 months and 15 days. The total anticipated delay in this matter is 28 months and 16 days. As a starting point, the presumptive ceiling has not been reached in this case. Accordingly, it is unnecessary for me to deduct periods of delay attributable to defence. Having said this, I note that delay attributable to the defence totals approximately five months, comprised of two periods: approximately three months between June 29 to September 27, 2016 (on account of the inability of the defence to proceed with the application under § 752.1 of the Criminal Code); and approximately seven weeks between September 11 and October 31, 2017 (on account of Ms. Israel's unavailability for the first hearing date for the § 753.1 Criminal Code application that the court offered).

[60] I will now employ the analytical framework set out in ¶ 43, supra, to determine whether the defence has satisfied me that a violation of ¶ 11 (b) of the Charter has occurred.

[61] I acknowledge that in some respects, the defence took steps to ensure that this case advanced as quickly as possible. Mr. Jordan quickly retained counsel. Mr. Jordan elected to be tried before the Ontario Court of Justice. Mr. Jordan consented to an order under § 752.1 of the Criminal Code, thereby eliminating the need for a hearing. However, as noted above, the resolution of the application under § 752.1 of the Criminal Code did not proceed as quickly as it ought to have and the responsibility for this, in my view, falls squarely at the feet of the defence. Further, the defence did not take advantage of the first available date offered by the court to hear the application under § 753.1 of the Code. Both of these periods of delay arose as a result of Ms. Israel's commitments to her other clients. Simply put, Mr. Jordan chose to continue his retainer of Ms. Israel even though she could not always prioritize his case over those of her other clients. That decision has consequences for him within my assessment of an alleged violation of ¶ 11 (b) of the Charter. Finally, I note that Mr. Wilson's attempts to reprioritize the Crown's prosecutions of which I was seized were frustrated by Mr. Jordan's need to retain new counsel on two occasions. I further observe that Mr. Jordan's need to change counsel had nothing to do with the actions taken by Mr. Wilson in this prosecution.

[62] In my respectful view, the time this case has taken does not markedly exceed what was reasonably required. The court was able to accommodate the parties in relation to a two-day trial of the original charges within four to five months of their joint readiness to proceed. The court was able to accommodate the parties in relation to a seven-day hearing of the Long-Term Offender application within approximately six months of their joint readiness to proceed. The scheduling of the second proceeding was achieved in the face of my own busy court schedule. Each proceeding was reached within the guidelines recommended under the Morin, supra, analytical framework. I further note that the assessment services of Dr. Klassen were secured as quickly as possible and his report was generated on a timely basis. Further, there were no unreasonable delays in generating disclosure in respect of either proceeding.

[63] In my respectful view, this is not a clear case where a stay of proceedings should issue.

[64] I am not satisfied that a violation of ¶ 11 (b) of the Charter has occurred. The application for relief under § 24(1) of the Charter is dismissed.

3: THE APPLICATION UNDER PART XXIV OF THE CRIMINAL CODE

3.1: Nigel Jordan's Criminal History

[65] The Crown relies upon Exhibits 1A, 1B, and 5, a compendium of court records, filed during the course of the Long-Term Offender application, together with the testimony of Kristin Baker, to establish the details of Mr. Jordan's criminal history.

[66] A copy of Mr. Jordan's criminal record appears at Tab 3 of Ex. 1A. The entries commence in June 1989 and conclude in July 2015. The longest gap between entries runs between January 2010 and June 2013. Otherwise, Mr. Jordan has steadily accrued findings of guilt over the course of more than 26 years.

[67] Of concern, for the purpose of the instant proceedings, is Mr. Jordan's criminal record for offences of violence and threatened violence. Mr. Jordan has five convictions for assault, one conviction for assault with intent to resist arrest, two convictions for assault with a weapon, six convictions for uttering threats, and one conviction for forcible confinement. His most recent conviction for an offence of violence was registered in September 2014, less than a year before the commission of the predicate offences. Of similar concern, for the purpose of the Long-Term Offender application, Mr. Jordan has numerous convictions for failing to comply with court orders that require him to observe conditions of community supervision. He has ten convictions for failing to comply with a term of a recognizance of bail or an undertaking, together with five convictions for failing to comply with a term of a probation order. His most recent conviction for failing to comply with a term of a probation order was registered in July 2015, less than a month before the commission of the predicate offence.

[68] As will be detailed below, many of these convictions relate to violence perpetrated upon a domestic partner and violations of court orders intended to protect those partners from the risk of future violence.

3.1(a): Criminal Convictions Directly Related to Domestic Partners

[69] Mr. Jordan has been involved in five domestic relationships:

(1) When he was 18 or 19, he began a relationship with a woman by the name of Jeanette Lowrie. They were together for two years, but did not live together. They have a son in common who is now 24 years old;

(2) When he was 20 or 21, he began a relationship with Cheryl Sergeant. They lived together for about five years. They have a son in common who is now 22 years old;

(3) In his mid-20s, Mr. Jordan began a relationship with Kristin Baker. They were together, "on and off", and lived together, again on an intermittent basis, for about four years;

(4) When Mr. Jordan was 30, he began a relationship with Lisa Southwind. They were together, "on and off", for 16 years. They have a son in common who is now 11; and

(5) When Mr. Jordan was 40, he began a relationship with Darlene Walton. They were together for six years and shared a home throughout the duration of their relationship. They have a son in common who is now 9 years old.

[70] The evidentiary record before me establishes that of these five domestic partners, three are the subject of entries for offences of violence on Mr. Jordan's criminal record.

3.1(a)(i): The November 1 – 4, 1996 Incident Involving Kristin Baker

[71] Sometime between November 1 and 4, 1996, and while at the residence where they lived, Mr. Jordan and Ms. Baker became involved in a verbal argument. During the course of that argument, Mr. Jordan slapped and pushed Ms. Baker. On June 22, 1997, Mr. Jordan pled guilty to one count of assault. On top of 45 actual days of pre-sentence detention, Hachborn J. of the Ontario Court (Provincial Division) suspended the passing of sentence and placed Mr. Jordan on probation for a period of 12 months. By way of an ancillary orders, His Honour imposed a 10-year weapons prohibition under § 100 of the Criminal Code.

[72] This represents the January 22, 1997 entry on Mr. Jordan's criminal record.

3.1(a)(ii): The September 25, 1997 Incident Involving Kristin Baker

[73] During the material timeframe, Mr. Jordan and Ms. Baker were no longer in a domestic relationship. On September 25, 1997, Mr. Jordan followed Ms. Baker as she drove to a friend's home. Once she arrived at that location, he demanded that she exit from her vehicle. She initially refused to do so. Mr. Jordan returned to his own vehicle and drove it up onto the sidewalk where Ms. Baker and her mother were standing. At some point during the currency of the incident, Mr. Jordan threatened to cause death to Ms. Baker. On March 3, 1999, Mr. Jordan pled guilty to assault with a weapon, uttering a death threat, and dangerous operation of a motor vehicle. On top of 235 days of pre-sentence detention, McCombs J. of the Ontario Court (General Division) imposed a nine-month global custodial sentence, concurrent on each count, to be followed by three years of probation. A term of that probation order required Mr. Jordan to participate in anger management counselling. By way of ancillary orders, His Honour imposed a lifetime weapons prohibition, pursuant to § 100 of the Criminal Code.

[74] This represents the March 18, 1999 entries on Mr. Jordan's criminal record.

3.1(a)(iii): The March 21, 2000 Incident Involving Kristin Baker

[75] In March of 2000 Ms. Baker was attending the University of Guelph. A short time prior to the impugned incident, she had, yet again, broken off her relationship with Mr. Jordan. On March 20, 2000, Mr. Jordan showed up unexpectedly in Guelph and met Ms. Baker at a bus stop. He then drove her to her apartment. At that location, a verbal argument ensued over his dissatisfaction with the recent termination of their relationship. The argument continued well past midnight. Ms. Baker was in the midst of studying for an exam. At one point during the argument, Mr. Jordan brandished a knife and somehow was cut by it. Ms. Baker felt the need to engage in sexual intercourse with Mr. Jordan with a view to calming him down. This way, they both could sleep and she would be somewhat rested for her exam. During her testimony in the instant proceeding, Ms. Baker was unclear about the particulars of a death threat that Mr. Jordan ultimately admitted making.

[76] On February 6, 2001, Mr. Jordan pled guilty to uttering a death threat and failing to comply with a term of the probation order imposed by McCombs J. one year earlier, which prohibited him from any communication with, amongst others, Ms. Baker. Justice Herold of the Ontario Superior Court of Justice imposed a four-month global custodial sentence, concurrent on each count, to be followed by a three-year period of probation.

[77] This represents the February 6, 2001 entries on Mr. Jordan's criminal record.

3.1(a)(iv): The October 13, 2000 Incident Involving Kristin Baker

[78] By October 2000, Mr. Baker had, yet again, terminated her relationship with Mr. Jordan. He was unhappy with this decision. On October 13, 2000, Mr. Jordan somehow located Ms. Baker in her vehicle on a Toronto street. He approached the vehicle and threw a rock through the vehicle's open window. It struck Ms. Baker. At the material time there was an infant located in the rear of the car, though it is unclear on the evidentiary record before me whether or not Mr. Jordan was aware of the infant's presence.

[79] On June 22, 2001, Mr. Jordan pled guilty to assault with a weapon, uttering a death threat, and two counts of failing to comply with a term of a recognizance of bail. One of the impugned terms of the recognizance of bail prohibited Mr. Jordan from having any contact with, amongst others, Ms. Baker. The second impugned term prohibited him from having care or control of a motor vehicle, with certain exceptions. On top of six months of pre-sentence detention, Marin J. of this Honourable Court imposed an 18-month global custodial sentence, concurrent on each count, to be followed by three years of probation.

[80] This represents the June 22, 2001 entries on Mr. Jordan's criminal record.

3.1(a)(v): The February 19, 2008 Incident Involving Darlene Walton

[81] On February 19, 2008, Mr. Jordan attended the residence of his then estranged partner, Darlene Walton. In the period preceding this date, Mr. Jordan had made unsuccessful attempts towards rekindling their romantic relationship. On the day in question, Mr. Jordan was angry with Ms. Walton for her refusal of a Valentine's Day gift he had purchased for her. Mr. Jordan confronted Ms. Walton about this refusal. During that verbal confrontation, he slapped her across the face. Ms. Walton screamed for help and her mother came to her assistance. Indeed, Ms. Walton's mother placed herself between her daughter and Mr. Jordan to prevent further violence.

[82] On May 1, 2009, Mr. Jordan pled guilty to assault. On top of two days of pre-sentence detention, Marshall J. of this Honourable Court imposed a 30-day custodial sentence, to be served on an intermittent basis, to be followed by 18 months of probation. By way of ancillary orders, Her Honour imposed a ten-year weapons prohibition, pursuant to § 110 of the Criminal Code.

[83] Of note, during the course of the sentencing proceedings, Mr. Jordan confirmed that, while serving an earlier custodial sentence, he had participated in a course entitled, Relationships Without Violence and the Partner Abuse Response Program. He further confirmed that, while in the community, he had attended two sessions for anger management through the John Howard Society.

[84] This represents the May 1, 2009 entry on Mr. Jordan's criminal record.

3.1(a)(vi): The June 26 - 27, 2009 Incident Involving Darlene Walton

[85] On June 26, 2009 at about 9:30 p.m., Mr. Jordan attended the residence of Darlene Walton. She had not invited him to attend and, indeed, had not given him permission, in advance, to be there. Mr. Jordan advised Ms. Walton that he was there to visit their son. Ms. Walton continually asked Mr. Jordan to leave. When he refused to do so, she contacted the police shortly after midnight on June 27. As she contacted the police, Mr. Jordan fled the location. The police later located Mr. Jordan at 1:20 a.m. on June 27, 2009.

[86] On July 20, 2009, Mr. Jordan pled guilty to failing to comply with the term of the probation order imposed by Marshall J. less than a month earlier, a term of which prohibited contact with Darlene Walton "except with her written consent which could be orally revoked and if revoked, contact to be only through lawyer or a third party or through a family court order for child access". He also pled guilty to failing to comply with the term of a recognizance of bail, which required that he "remain in your residence daily between the hours of 10 p.m. and 6 a.m. [except] for medical emergencies, or in the presence of one of your sureties".

[87] On top of the equivalent of 30 days of pre-sentence custody, Crawford J. of this Honourable Court imposed a 150-day global custodial sentence (75 days on each count, to be served consecutively), to be followed by 18 months of probation.

[88] Of note, during the course of the sentencing proceedings, Mr. Jordan revealed, through his counsel's submissions, that he was living with his parents.

[89] This represents the July 20, 2009 entries on Mr. Jordan's criminal record.

3.1(a)(vii): The September 6 and October 19 - 20, 2013 Incidents Involving Lisa Southwind

[90] During the summer of 2013, Mr. Jordan and Ms. Southwind resumed a romantic relationship (they had previously ended a romantic relationship a little more than eight years earlier). During that eight-year period, there was no suggestion of any domestic violence between them.

[91] While Mr. Jordan and Ms. Southwind were dating in the summer of 2013, Ms. Southwind was also dating a man known as A.J. That same summer, Mr. Jordan and A.J. were involved in a physical altercation when Mr. Jordan learned that A.J. had tried to drag Ms. Southwind into his vehicle, over her objection.

[92] At 5:30 p.m., on September 16, 2013, Mr. Jordan attended Ms. Southwind's place of work. He asked, "Where's my son?", an apparent reference to their son in common. He then grabbed Ms. Southwind's purse and fled from the location.

[93] On October 19, 2013, at about 6:50 p.m., Ms. Southwind was returning to her residence, a Native Women's Shelter, in Toronto. Her 8-year-old son was with her. A.J. had driven the pair to the shelter. Ms. Southwind and A.J. continued to enjoy a dating relationship. As Ms. Southwind approached the front door of the shelter with her son, Mr. Jordan appeared out of the darkness and quickly approached her. Fearing for her safety, Ms. Southwind attempted to run into the shelter, through the residence's main door.

[94] Mr. Jordan chased Ms. Southwind into the vestibule of the building. He then attacked her, striking Ms. Southwind several times. During the course of the attack, a panel of glass within the vestibule was broken. By way of injuries, Ms. Southwind suffered a sore neck and redness to the underside of her chin. She did not require medical attention.

[95] The following day, commencing at 10:00 a.m., Mr. Jordan began to call Ms. Southwind. He made numerous calls over the course of eleven hours that day and into the evening. During the course of these calls, Mr. Jordan threatened to physically harm Ms. Southwind to the point that she would be wheelchair bound. At points during these calls, he demanded that Ms. Southwind bring their then eight-year-old son to see him. At one point, he threatened Ms. Southwind with death by 3:00 p.m. the following day should she not bring their son to him.

[96] On March 11, 2014, Mr. Jordan pled guilty to theft of property of a value under $5,000 in relation to the events of September 6, 2013, to assault and failing to comply with a term of a recognizance of bail which required that he "reside with your surety, Sean-Ios Colby in the basement apartment of Giancarlo Cesarone at 21 Bellamy Rd S, Bsmnt" in relation to the events of October 19, 2013, and to criminal harassment (through repeated communication), uttering a death threat, and uttering a threat to cause bodily harm in relation to the events of October 20, 2013.

[97] On top of 333 actual days (and treated as the equivalent of 498 days or 16.5 months) of pre-sentence detention, Kelly J. of this Honourable Court imposed a global sentence of 19 months in custody, broken down as follows:

Theft of property of a value not exceeding $5,000 2 months

Assault 9 months (consecutive)

Failing to comply with a recognizance of bail 2 months (consecutive)

Criminal harassment 6 months (consecutive)

Uttering a threat to cause bodily harm 6 months (concurrent)

Uttering a threat to cause death 6 months (concurrent)

[98] In addition to the custodial sentence, Kelly J. imposed a period of probation for three years. A term of that probation order required that he participate in counselling for anger management and domestic violence (including, as appropriate, the Partner Assault Response Program). By way of ancillary orders, His Honour imposed a lifetime weapons prohibition, pursuant to § 109 of the Criminal Code, and an order, pursuant to § 743.21 of the Code, prohibiting Mr. Jordan from having any contact or communication with Ms. Southwind during the currency of his custodial sentence.

[99] This represents the September 19, 2014 entries on Mr. Jordan's criminal record.

3.1(a)(viii): The February 21, 2015 Incident Involving Lisa Southwind

[100] On February 21, 2015, Mr. Jordan and Ms. Southwind were involved in a verbal confrontation that was causing a disturbance to those within the surrounding neighbourhood. At one point, he got on top of the hood of a motor vehicle that she was driving. Ms. Southwind drove a short distance, in an apparent effort to get away from Mr. Jordan.

[101] On July 22, 2015, Mr. Jordan pled guilty to failing to comply with a term of the probation order of Kelly J. imposed ten months earlier, which required that he keep the peace and be of good behaviour. On top of 30 days of pre-sentence detention, Doorly J. of this Honourable Court imposed a $5 fine.

3.2: The Predicate Offence

[102] On April 18, 2016, and following a trial, I found Mr. Jordan guilty of the offences of failing to comply with a term of the probation order of Kelly J., which prohibited Mr. Jordan from being "within 200 metres of any place where you know Lisa Southwind to live, work, go to school, frequent or any place you know the person to be EXCEPT for required family court proceedings or with prior written revocable consent", breaking and entering into a dwelling house and committing therein the offence of mischief, assault, and forcible seizure. The facts in support of my findings of guilt may be summarized as follows.

[103] On July 22, 2015, Mr. Jordan was released from custody. Shortly after Mr. Jordan's release from custody, Ms. Southwind welcomed Mr. Jordan into her home and, indeed, provided him with a key to it. In essence, she was reconciling with him. However, she had not provided written consent to be near him.

[104] On August 2 or 3, 2015, Ms. Southwind headed out to spend the day with some girlfriends. When she did not return to her residence as expected, Mr. Jordan texted her regarding her whereabouts. By the evening of August 3, 2015, Ms. Southwind was in a room at 5 Radwinter Drive, a boarding house located in north west Toronto. That room belonged to Michael Hinds, an individual with whom Ms. Southwind had been romantically involved since March or April 2015. Ms. Southwind was pursuing her relationships with Messrs. Jordan and Hinds simultaneously. As a result of text messages that Mr. Jordan had sent, Ms. Southwind came to realize that Mr. Jordan was outside of the house in question. She cautioned Mr. Hinds against letting Mr. Jordan inside the residence and, indeed, threatened to call the police if Mr. Hinds did so. She threatened to call the police to "avoid conflict" between the two men. She was concerned for their safety and for her own safety. Ms. Southwind knew Mr. Jordan was angry with Mr. Hinds by reason of his belief that the latter had assaulted her.

[105] The following morning, on August 4, 2015, Ms. Southwind remained in Mr. Hinds' company. Her mother sent her a number of text messages indicating that Mr. Jordan would be entering the residence. Ms. Southwind heard an individual at the door to Mr. Hinds' room. She quickly realized that Mr. Jordan was trying to breach the door with the aid of a knife. Ms. Southwind called 911. She did this in an effort to "avoid conflicts". During the currency of that call, Mr. Hinds leapt out of the bedroom window and fled from the house.

[106] Ryan Woehry, a contractor with Bell who happened to be setting up to do some work on the street that morning, saw Mr. Hinds emerge from the second storey window at 5 Radwinter and make his way to the ground. Mr. Hinds approached Mr. Woehry. The former appeared nervous, scared, and upset. On the strength of information that Mr. Hinds provided to Mr. Woehry, the latter called 911. Each of the calls made to 911 that morning simultaneously and, thus, in parallel, capture the observations of Ms. Southwind and Mr. Woehry as events unfolded. Ms. Southwind's 911 call captured Mr. Jordan's entry into the room where Ms. Southwind was located. Of note, while on the telephone with police, Mr. Woehry reported that he could hear a "crash, smash, shriek" by a woman, coming from the window through which Mr. Hinds had emerged.

[107] During the encounter inside of the room, Mr. Jordan did not take anything from Ms. Southwind. He also did not assault her in any fashion. Ms. Southwind was, nonetheless, scared. Mr. Jordan wanted her to accompany him back to their residence. Ms. Southwind had no intention of leaving with Mr. Jordan; she did not want to leave; she wanted to stay at 5 Radwinter at that point in time. In an apparent effort to stall, she moved about slowly, gathering up her items. After all, she knew that the police were on their way.

[108] It was apparent from the call that Ms. Southwind made to the police that she began her encounter with Mr. Jordan from a position of fear. That was evident in the level and tone of her voice as she spoke with the operator, that she was crying, and by her express indications that she wanted the police to arrive quickly leading up to the point at which Mr. Jordan broke into Mr. Hinds' room. She also testified that she called the police for a variety of reasons, including her personal safety. Once Mr. Jordan breached the door with the aid of a knife, Ms. Southwind can be heard screaming and shouting words such as, "no" and "stop" on the call. This reaction suggests that her fear of Mr. Jordan remained acute. It also supports the inference that Mr. Jordan was prepared to use force to overcome resistance. That she did not want to be with Mr. Jordan, let alone accompany him, is supported by her comment to him, as captured during the 911call, that she did not want him in her home anymore.

[109] Mr. Jordan and Ms. Southwind exited the residence and headed along Radwinter towards Lakeland. As she walked out of the residence, Ms. Southwind was just trying to "calm the situation". She regarded him as the "Alpha" and would typically listen to him when he speaks to her. I took this to mean that she would typically comply with his directions, regardless of her own wishes. She knew the police had been called and, in the result, knew that she was not going with him. Mr. Jordan did have physical hold of her, in the area of her upper body, as they walked along Radwinter, approaching Lakeland.

[110] P.C. Barr of the Toronto Police Service came upon Mr. Jordan and Ms. Southwind near 20 Lakeland Drive, walking towards Kipling Avenue, followed on foot by P.C. Dills. By this point, Ms. Southwind was no longer the subject of a forcible seizure.

[111] In my Reasons for Judgment, dated April 18, 2016, I concluded that through verbal intimidation and the application of force, Mr. Jordan forcibly removed Ms. Southwind from 5 Radwinter Drive and moved her along that street without her consent.

[112] Ms. Southwind testified during the Long-Term Offender application. She advised that she is in no way emotionally distraught by the events of August 4, 2015. She has advised his probation officer that she wishes to have contact with him and, indeed, pending the outcome in this matter, has visited him at the Toronto South Detention Centre. She further indicated that "at this time", she does not intend to rekindle a romantic relationship with Mr. Jordan or live with him. She does, however, hope that they can co-parent their son.

3.3: The Circumstances of Nigel Jordan

[113] Mr. Jordan is now 47 years of age. He was born and raised in Toronto by his mother, Janet Cato, together with two younger sisters, in circumstances of poverty. Those sisters are now ages 44 and 32. Mr. Jordan speaks fondly of his relationships with his sisters. According to Mr. Jordan, each has done well for herself in the community. Mr. Jordan also speaks fondly of his relationships with his mother, though I note that she subjected him to corporal punishment, which at times involved objects, when he was child. Mr. Jordan's mother is now 70. She works as a social worker.

[114] Mr. Jordan has no relationship with his biological father, Van Serieaux, whom he understands worked as a police officer in Toronto. He has seen his father on approximately seven occasions.

[115] Mr. Jordan's step-father, Kenny Carter, entered Mr. Jordan's life when the latter was 15 years old. He enjoys a very positive relationship with his step-father whom he described to Dr. Klassen as a "great guy" and a "good role model".

[116] Mr. Jordan has a grade 12 education. Growing up, he received support for a learning disability and symptoms associated with Attention Deficit Hyperactivity Disorder. At times he was the victim of bullying. Truancy became an issue in grade 9 or 10. Though he associated with friends who sometimes engaged in anti-social behaviour, he did not, generally speaking, act out in a similar fashion as a child or during his early adolescence.

[117] Mr. Jordan has been incarcerated for close to 50 percent of his adult life. When in the community, he has been able to access employment, particularly in the area of construction.

[118] As noted above, Mr. Jordan has four sons, two of whom are in their 20s. It is clear from the materials that I have read that Mr. Jordan does care a great deal for his sons. Indeed, during his pre-sentence detention in relation to the predicate offence, he participated in the Toronto Public Library's Storybook Program so that audio books, recorded by him, could be provided to his two younger sons. He also conveyed to Dr. Klassen that he spends a portion of his recreational time with his children.

[119] Upon his release from custody, Mr. Jordan intends to reside with his mother and step father.

3.4: The Statutory Pre-Requisites to a Successful Application under § 753.1

[120] The relevant statutory provisions that govern the consideration of a Long-Term Offender application are contained in § 753.1 of the Criminal Code. Simply put, I may find Mr. Jordan to be a Long-Term Offender if satisfied that:

(1) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence, in this case, of forcible seizure;

(2) there is a substantial risk that the offender will reoffend; and

(3) there is a reasonable possibility of eventual control of the risk in the community.

Of note, even if I am satisfied that the three aforementioned pre-requisites have been satisfied, I, nonetheless retain a discretion to decline to declare Mr. Jordan a Long-Term Offender.

[121] I note, parenthetically, that Mr. Bryant has raised the issue of whether the offence of forcible seizure, in the circumstances of this case, amounts in law to a "serious personal injury offence", as contemplated within § 752 of the Criminal Code. In particular, he appears to contend that there is no evidence that Mr. Jordan used or attempted to use violence against Ms. Southwind. I observe that, at this stage of the proceedings, it is generally common ground between the parties that the predicate offence that forms the basis of the Long-Term Offender application does, in law, constitute a serious personal injury offence. That is the case because the application cannot proceed without the filing of the expert assessment generated pursuant to an order made under § 752.1 of the Code. (See: § 753.1(1) of the Code.) That order cannot be made unless the court is satisfied that the predicate offence amounts, in law, to a serious personal injury offence. In the instant case, Mr. Jordan, through his counsel, Ms. Israel, conceded as much, and quite properly so, in my respectful view, having regard to Mr. Jordan's application of physical force, the import of which was contextualized by his verbal intimidation, to facilitate the predicate offence. This clearly amounted to a use of violence against Ms. Southwind. I have been provided with no basis to revisit or otherwise scrutinize the appropriateness of Mr. Jordan's concession, as communicated through Ms. Israel, and I decline to do so at this time.

3.5: Has the Crown Satisfied the Statutory Pre-Requisites under § 753.1(1) of the Criminal Code?

3.5(a): Is it Appropriate to Impose a Sentence of Imprisonment of Two Years or More for the Count of Forcible Confinement?

[122] I am mindful that, at this juncture of the analysis, I must approach this question by applying the purpose and principles of sentencing contained within Part XXIII of the Criminal Code.

[123] Section 718 of the Criminal Code provides that the fundamental purpose of sentencing an adult offender is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions that have certain objectives.

[124] It is common ground between the parties that the relevant sentencing objectives in this case are to denounce Mr. Jordan's unlawful conduct and to deter or discourage similar conduct in the future. Those sentencing principles must inform the nature and length of the sentence I impose in this case. I will now turn to a brief discussion of each of those sentencing objectives.

[125] The objective of denunciation requires that a sentence communicate society's condemnation of Mr. Jordan's conduct. This concept was best explained by the Supreme Court of Canada in R. v. C.A.M., [1996] S.C.J. No. 28 at ¶ 81:

In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law. As Lord Justice Lawton stated in R. v. Sargeant (1974), 60 Cr. App. R. 74 at p. 77 : "society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass".

The Supreme Court went on to explain:

The relevance of both retribution and denunciation as goals of sentencing underscores that our criminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct by increasing the cost the offender must bear in committing an enumerated offence. Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instils the basic set of communal values shared by all Canadians as expressed by the Criminal Code.

[126] By reason of its purpose, denunciation necessarily focuses on the impugned conduct and not the circumstances of the offender. However, the focus cannot simply be on the essential elements of the offence charged: instead, to be meaningful, the inquiry must consider the factual context of the offence.

[127] The utility of a deterrent sentence is its operational value. A sentence informed by the principle of general deterrence works to discourage likeminded individuals within the community from engaging in the proscribed conduct. As noted in Sentencing, 8th Ed. by Clayton Ruby, et al., at p. 7, § 1.21, "…the assumption underlying deterrence as a goal of sentencing is that the threat or example of punishment discourages crime." A sentence informed by the principle of specific deterrence operates to discourage the particular offender before the court from reoffending. Having regard to the entries on Mr. Jordan's criminal record for acts of violence against domestic partners, there can be no doubt that the sentence I impose today must be one that operates to discourage him, in particular, from reoffending against Ms. Southwind and any other domestic partner into the future.

[128] The defence has urged me to find that the sentence in this case must be informed by the principle of rehabilitation. The purpose of rehabilitation as a sentencing objective is to address the criminogenic factors that placed the offender at risk of committing a criminal offence in the first place. The goal of rehabilitation is generally best achieved through the imposition of a probation order whereby the offender is the subject of supervision by a probation officer and is required to avail himself of structured programs and resources, which can include counselling. A probation order can also incorporate conditions that limit an offender's conduct and choices, with a view to managing his risk to reoffend. While I agree that Mr. Jordan requires supervision within the community upon his release from custody, and the terms of that supervisory order, whatever form it might take, ought to include counselling directed at the risk he presents for intimate partner violence, I am of the respectful view that the principle of rehabilitation plays little, if any, role in informing the length of the custodial sentence I ought to impose in this case.

[129] The fair and appropriate sentence that adequately addresses the relevant sentencing principles, and is consistent with the fundamental purpose of sentencing, necessarily takes into account the aggravating and mitigating factors presented by the case. I will proceed with a review of those factors at this time.

[130] The aggravating factors arising from the circumstances of the offence of forcible seizure and Mr. Jordan's personal circumstances may be summarized as follows:

(1) the predicate offence was committed in the context of a domestic relationship. It involved a degree of violence. This is a statutory aggravating feature, pursuant to § 718.2(ii) of the Criminal Code;

(2) Mr. Jordan committed the offence in circumstances in which both he and Ms. Southwind knew that he was possession of a knife, the instrument he had utilized to force his way into the room in which Ms. Southwind and Mr. Hinds were located;

(3) The offence was facilitated through the application of physical force and verbal intimidation;

(4) Mr. Jordan exploited his dominance within the relationship to facilitate the offence. He was, as Ms. Southwind noted during her testimony in March 2016, the "Alpha" within the relationship;

(5) At the time of the offence, Mr. Jordan was the subject of a probation order that imposed a perimeter restriction in relation to Ms. Southwind. That condition was designed to protect her from the very type of conduct that forms the basis of the predicate offence. As a second aggravating feature, this represented the second occasion during which Mr. Jordan violated Kelly J.'s probation order of September 19, 2014 in less than a year;

(6) At the time of the offence, Mr. Jordan was the subject of two separate probation orders that necessarily required that he keep the peace and be of good behaviour;

(7) Mr. Jordan committed the offence less than two weeks following his release from custody in relation to other charges involving Ms. Southwind;

(8) Mr. Jordan has a history of criminal convictions in relation to Ms. Southwind. Indeed, he has been convicted of seven other offences that involve her, including assault, criminal harassment, uttering a death threat, and uttering a threat to cause bodily harm. Those offences arose from incidents that took place on four separate days over a span of one year preceding the predicate offence;

(9) As detailed, supra, Mr. Jordan has a history of violence and threatening violence, spanning the mid-1990s to 2008, involving two other domestic partners;

(10) This incident is just one data point in a well-established pattern of behaviour: when Mr. Jordan is faced with a domestic partner who wishes to terminate their romantic relationship or whom he perceives as having been unfaithful to him, he responds with violence and an exertion of control over her. This behaviour has manifested itself during his interactions with Ms. Baker, Ms. Walton, and Ms. Southwind, over the span of close to 20 years; and

(11) Mr. Jordan has a previous conviction for forcible confinement for which he received a 45-day custodial sentence on top of 31 days of pre-sentence detention.

[131] To be fair to Mr. Jordan, it is important to note the absence of certain aggravating factors that, otherwise, must justify a more punitive sentence. The offence did not take place over an extensive period of time. It was complete within a matter of minutes. There is no evidence that Ms. Southwind suffered any physical injury during the incident in question. There is no evidence of any other type of victim impact arising from the predicate offence.

[132] I have given careful consideration to the presence of mitigating factors. That Mr. Jordan is still willing to participate in counselling to address his criminogenic factors is one positive feature of the case. I further note, as evidenced by the collection of certificates that comprise Ex. 3 on the Long-Term Offender application, that Mr. Jordan did participate in a variety of rehabilitative programs, each admittedly brief in duration, during his detention at the Toronto South Detention Centre, pending the final disposition of this matter.

[133] Just as I have identified the absence of certain aggravating factors, it is equally as important that I highlight the absence of certain mitigating factors that might otherwise justify a less punitive sentence. I note, for example, that Mr. Jordan did not pled guilty to the predicate offence, thereby relieving Ms. Southwind of the ordeal of testifying at his trial.

[134] In support of their respective positions, counsel for the parties have provided a sampling of case law which is, in one or more respects, arguably analogous to the underlying facts in this case. In reviewing these decisions, I have been mindful of the sentencing principle of parity. As noted in the Ontario Court of Appeal's decision in R. v. Ahmed, 2017 ONCA 76, the parity principle requires, to the extent possible, consistency in sentencing offenders in comparable circumstances. It requires that the sentence I impose today be similar to others imposed on similar offenders, for similar offences, committed in similar circumstances. See: ¶ 718.2 (b) of the Criminal Code. Neither party has placed a case directly on point before me. This is not surprising. The process of sentencing is highly individualized and nuanced, having regard to the myriad of variables presented by the circumstances of the offences and of the offender. This idea was aptly expressed in R. v. Lacasse, 2015 SCC 64 at ¶ 58:

…The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on it face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case…

[135] Mr. Wilson makes a compelling point. It is aptly expressed at ¶ 22 of his written submissions and bears reproduction in full:

In the past, Mr. Jordan has received the equivalent [custodial] sentences of 1 year and 4.5 months (1999), 4 months (2001), 2 years (2001) and 19 months (2014) for acts of domestic violence. None of those sentences were significant enough to deter Mr. Jordan from committing the predicate offence. The multitude of sentences Mr. Jordan has received for other, non-domestic crimes, have not deterred him from engaging in further criminal acts. Court orders are not deterrent to Mr. Jordan. The fact that in 2014, following his conviction for acts of violence committed against Ms. Southwind, the Crown sought to commence proceedings for the purpose of having Mr. Jordan declared a Dangerous or Long-Term Offender, did not deter Mr. Jordan from committing a future act of domestic violence against the very same victim. [emphasis in the original]

[136] I note that the offence of assault with a weapon involving Ms. Baker, on its own, attracted a custodial sentence equivalent to two years back in June, 2001. I regard the predicate offence as no less serious than that particular instance of violence. Each involves the perpetration of violence during the course of unwanted contact, and in the face of a court order prohibiting such contact. Each involved circumstances where the risk of physical injury was high.

[137] It is a fundamental principle of sentencing that the penalty imposed be proportionate to the gravity of the offence and the degree of responsibility of the offender. See: § 718.1 of the Criminal Code. The Supreme Court of Canada has described the relationship between the two factors that inform the principle of proportionality in R. v. Ipeelee, 2012 SCC 13, [2012] S.C.J. No. 13 at ¶ 37 as follows:

Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system…Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this case, the principle serves a limiting or restraining function and ensures justice for the offender.

[138] In this case, the gravity of the offence is high. Mr. Jordan used physical force and verbal intimidation to control Ms. Southwind's movements and in an attempt to control her choice whether to be with him, and did so in circumstances were a court order prohibited him from being near her. Further, Mr. Jordan's degree of moral blameworthiness is extremely high. He committed the predicate offence notwithstanding that, on numerous previous occasions, he had been incarcerated for not insignificant periods of time for engaging in domestic violence. Simply put, he committed the predicate offence with full knowledge that our community unreservedly condemns such behaviour.

[139] Having balanced the various aggravating and mitigating factors that the case presents, I have concluded that the least restrictive sentence for the predicate offence that fulfills the relevant sentencing principles, and is consistent with fundamental purpose of sentencing an adult offender, is two years in custody, less credit for pre-sentence detention. But for the relatively brief duration of the seizure, together with the absence of evidence of physical or psychological harm, I would have no hesitation in concluding that a longer custodial sentence would be appropriate.

[140] The answer to the first question is, "yes".

3.5(b): Is there a Substantial Risk that Nigel Jordan Will Re-Offend?

[141] It is common ground between the parties, largely on the basis of the opinion evidence proffered by Dr. Klassen, that there does exist a substantial risk, as contemplated by ¶ 753.1(1)(b) of the Criminal Code, that Mr. Jordan will reoffend violently, particularly in the area of intimate partner violence. This joint position is well-taken and supported by the evidentiary record before me.

[142] Dr. Klassen performed an actuarial assessment of the risk of re-offence that Mr. Jordan poses using four actuarial instruments: the Psychopathy Checklist-Revised (PCL-R), the Violence Risk Appraisal Guide (VRAG), the Ontario Domestic Assault Risk Assessment (ODARA), and the Domestic Violence Risk Appraisal Guide (D-VRAG). The final two instruments are designed to assess the risk of intimate partner violence, in particular. In Dr. Klassen's view, actuarial tools are the most accurate predictor of risk.

[143] In his report, a copy of which appears at Tab 2 of the compendium of materials marked as Ex. 2, Dr. Klassen opined as follows at p. 26:

My score for this gentleman on the ODARA, admittedly with some uncertainty on certain items, is 10. An individual enters the highest risk category on this instrument at a score of 7 or greater. Accordingly, this gentleman falls on greater than the 90th percentile with respect to the reference or standardization sample. Similar-scoring individuals, in the developmental sample, recidivated violently at a rate of 70% over five years' opportunity in the community. It should be noted that with respect to both the ODARA and the D-VRAG, recidivism was largely against prior victims, as opposed to new partners.

[144] Dr. Klassen's score for Mr. Jordan on the D-VRAG was 32 points. With this score, he fell within category 7, the highest risk category on this instrument. Dr. Klassen explained that offenders who fell in that category were found to have committed a future act of intimate partner violence 100 percent of the time over approximately five years' opportunity in the community.

[145] Dr. Klassen's ultimate conclusion was that Mr. Jordan's scores, as generated using the aforementioned actuarial tools, suggest that he is at significant risk of intimate partner violence. Further, he is at moderate risk of any violence. On the strength of the score generated using the PCL-R, he is at moderate risk of general criminal recidivism. He further added that individuals who most closely resemble Mr. Jordan recidivate violently against a domestic partner 70 percent of the time (on the strength of the ODARA scoring) and 100 percent of the time (according to the D-VRAG scoring).

[146] The issue of age-related decline is one factor that must, nonetheless, be considered in assessing Mr. Jordan's risk for re-offence. With respect to personal injury offending, an individual's offending behaviour will start to decline in his 40s. That decline becomes significant in their 50s, and the offending will typically cease by age 60.

[147] Separate and apart from my consideration of Dr. Klassen's actuarial assessment, I note that Mr. Jordan has proven, through repeated offending in relation to Ms. Southwind, that he is at risk of future offending against her. Past acts are an excellent predictor of future conduct. Furthermore, on the evidentiary record before me, I do not see any material change in the dynamic of their, admittedly, complex relationship that supports the inference that she is less at risk of violence at his hands. I note that as recently as the period pending the final disposition in this matter, Mr. Jordan has been in contact with Ms. Southwind at the Toronto South Detention Centre, in clear violation of the terms of an order made under § 516(2) of the Criminal Code on August 4, 2015 that prohibits him from engaging in such contact. Of further note, I see no evidence of any meaningful insight on the part of Mr. Jordan as to the reasons for his intimate partner violence as against Ms. Southwind or any other domestic partner. My concerns as they relate to Ms. Southwind's safety or, frankly, to that of any other future domestic partner, are bolstered by Mr. Jordan's long history of violence against two other domestic partners.

[148] The answer to the second question is "yes", particularly as it relates to the area of intimate partner violence.

3.5(d): Is there a Reasonable Possibility of Eventual Control of the Risk that Mr. Jordan Presents in the Community?

[149] It is the position of the Crown that there is a reasonable possibility of eventual control of the risk that Mr. Jordan presents in the community provided that the following combination of conditions are engaged simultaneously: (1) age-related decline, as discussed above in ¶ 146, supra; (2) Mr. Jordan's participation in programmes that address his criminogenic factors, particularly as they relate to intimate partner violence; and (3) a high degree of structure and supervision within the community, including a requirement that Mr. Jordan live in a community correctional centre or community release facility, through the mechanism of a long-term supervision order of eight years in duration.

[150] It is the position of the defence, as expressed in ¶ 118 of Mr. Bryant's written submissions, that "Based on Dr. Klassen's report, …there is most certainly a reasonable possibility of control in the community". However, the defence urges me to find that a long-term supervision order is not necessarily a contributing factor towards the management of the risk that Mr. Jordan presents.

[151] At page 29 of his report, Dr. Klassen identified the following criminogenic variables as most salient in this case:

• Aspects of this gentleman's personality style, including jealousy/mistrust;

• Lack of a meaningful vocational orientation or clear future goals;

• Lack of a structured leisure or recreational interests;

• Possibly instability in a partner;

• Possibly alcohol and/or cocaine intoxication; and

• Difficulty taking full responsibility for his behaviour or, to the extent that I can discern it, embracing or integrating treatment concepts

[152] In furtherance of risk management, Dr. Klassen has recommended both external controls, in addition to further development of any internal controls. More specifically, Dr. Klassen has recommended the following for Mr. Jordan:

(1) intensive treatment for intimate partner violence;

(2) a requirement that he report any existing or anticipated intimate relationships to those supervising him in the community;

(3) abstention from alcohol and cocaine;

(4) educational upgrading, skills development, and more structured leisure or recreational activities; and

(5) a return to the community under the auspices of a Community Correctional Centre (CCC) or Community Release Facility (CRF). In this regard, Dr. Klassen wrote as follows at p. 29 of his report:

...It seems clear that living with his mother or with a partner, on probation, is not sufficient to maintain an offence-free lifestyle. Further the quality of his self-report to those supervising him has been called into question, and a residency condition would allow those supervising him to better assess his self-report.

[153] I have considered whether or not the imposition of a three-year period of probation would be sufficient to manage the risk that Mr. Jordan presents. For the following reasons, I have concluded that it does not:

(1) Mr. Jordan has shown a complete disregard for probation orders. As noted above, he has five previous convictions for failing to comply with a probation order. A number of those convictions relate to misconduct in relation to a domestic partner. Indeed, he has twice violated the probation order imposed by Kelly J. in September 2014, which was aimed at governing his interactions with Ms. Southwind. Further, during the commission of the predicate offence, he was the subject of two separate probation orders that, necessarily, required him to keep the peace and be of good behaviour;

(2) A probation order can last no more than three years. Any probation order that is imposed today would expire when Mr. Jordan is 50 years of age. The diminished risk associated with age-related decline would not yet be well into effect by that point. On the strength of the evidence before me, a supervisory period of seven years would be more appropriate;

(3) A probation order cannot require that Mr. Jordan live in a CCC or CRF;

(4) Mr. Jordan's proposed return to reside with his mother and stepfather while subject to a probation order offers little comfort. As confirmed above, in the past he has chosen to offend while living with them;

(5) The testimony of Sherri Rousell supports the inference that the degree of supervision available within the community under a probation order, as implemented by a probation officer, is less than what would be available under a long-term supervision order, as implemented by various Correctional Services Canada personnel; and

(6) the consequences of failing to comply with a term of a probation order are far less severe than the consequences of failing to comply with a term of a long-term supervision order. Where the Crown proceeds by indictment in relation to a charge of failing to comply with a probation order, the maximum available custodial sentence is one of four years. In contrast, the offence of failing to comply with a long-term supervision order is a straight indictable offence with a maximum available custodial sentence of ten years. To date, Mr. Jordan has felt no deterrent effect that flows from sentences imposed for offences under § 733.1 of the Criminal Code.

[154] The answer to the third question is, "yes", provided Mr. Jordan is the subject of a long-term supervision order.

3.5(e): Should Nigel Jordan Be Declared a Long-Term Offender and be Subject to a Long-Term Supervision Order?

[155] I am satisfied that the three statutory pre-requisites set out in § 753.1(1) of the Criminal Code have been met.

[156] I trust that it is self-evident in my reasons, supra, that nothing short of a long-term supervision order would be sufficient to manage the risk that Mr. Jordan presents in relation to intimate partner violence. In the result, the pressing need for the protection of the public, compels me to declare Mr. Jordan a Long-Term Offender and I do so at this time.

[157] The sentence for the count of forcible seizure will be as follows: On top of credit for 670 actual days of pre-sentence custody, I am imposing 60 days of custody. This represents the minimum period of time that Correctional Services Canada can prepare for the implementation of a long-term supervision order. In addition, I am imposing a seven-year long-term supervision order. By way of ancillary orders, and pursuant to § 109 of the Criminal Code, I am prohibiting Mr. Jordan from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance. Further, pursuant to § 487.051(1) of the Criminal Code, I am required to make an order authorizing the taking of a DNA sample from Mr. Jordan in relation to this offence. Finally, pursuant to § 743.21 of the Criminal Code, I am prohibiting Mr. Jordan from having any contact or communication, directly or indirectly, with Lisa Southwind while serving this custodial sentence.

4: SENTENCES FOR THE REMAINING TWO OFFENCES

[158] With respect to the count of failing to comply with a term of a probation order, the sentence will be as follows: On top of credit for 670 actual days of pre-sentence custody, I am imposing 60 days of custody, to run concurrent to any other custodial sentence. In determining that the fit and appropriate sentence for this count, prior to any consideration of credit for pre-sentence detention, is two years' custody, I have placed considerable weight on Mr. Jordan's history of failing to comply with probation orders, together with the serious nature of this particular breach.

[159] With respect to the count of breaking and entering into a dwelling house and committing therein the offence of mischief, the sentence will be as follows: On top of credit for 540 actual days of pre-sentence custody, I am imposing 60 days of custody, to run concurrent to any other custodial sentence. In determining that the fit and appropriate sentence for this count, prior to any consideration of credit for pre-sentence detention, is 18 months' custody, I have acceded to the parties' joint position in relation to this count. By way of ancillary orders, I am satisfied, having regard to the nature and number of entries on Mr. Jordan's criminal record, the aggravating features of this particular offence, together with Mr. Jordan's diminished expectation of privacy arising from the fact that his DNA profile is already in the system, that it is in the best interests of the administration of justice to make an order authorizing the taking of a DNA sample in relation to this offence. I do so at this time, pursuant to § 487.051(3) of the Criminal Code.

[160] Finally I am required to impose a total victim fine surcharge in the amount of $600. I will grant Mr. Jordan 12 months to pay this amount.

Released: December 19, 2017

Signed: "Justice A. Tuck-Jackson"

[i] As will become apparent, infra, Dr. Klassen never returned to conduct a further interview of Mr. Jordan.

[ii] As will become apparent, infra, Mr. Wilson's could not meaningfully proceed with these inquiries by reason of Mr. Israel's removal as counsel of record in March 2017, the delay in securing Mr. Goldkind as new counsel, and the further delay in ascertaining Mr. Goldkind's availability for the Part XXIV Criminal Code proceeding.

[iii] I was away ill and could not hear the matter on that date.

[iv] As early as April 12, 2017, Mr. Wilson advised Mr. Goldkind that the Attorney General was inviting his submissions on the issue of whether he should consent to the Crown's application under Part XXIV of the Criminal Code in relation to Mr. Jordan.

[v] I was away on vacation and could not hear the matter on that date.

[vi] This summary is derived from the helpful dictum contained in R. v. Coulter, supra, at ¶ 34 – 59.