Court File and Parties

Court File No.: Toronto Region

Date: 2018-01-08

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Michael Kozovski

Before: Justice L. Feldman

Heard on: December 11, 13, 2017

Reasons for Judgment released on: January 8, 2018

Counsel:

• D. Tsagaris, for the Crown
• C. Hynes, for the accused Michael Kozovski

Judgment

FELDMAN J.:

Introduction

[1] On August 4, 2016, I found Michael Kozovski guilty of one count of sexual assault, as well as two of threatening death. The facts indicate that on April 1, while at a shelter on Sherbourne St. in Toronto, the defendant, wearing only underpants, got into the bed of a 77-year old complainant, undid the man's zipper and touched his penis. He was arrested.

[2] Later, while being transported to the police station, the defendant threatened the arresting officer. He said to him: "I'll knock your fucking head off, you wait till me and you, when we get out of the car, it's me and you, I'll wrap it (meaning his handcuffs) around your fucking neck". He told the second officer, "I'm going to kill you, you fucking goat".

[3] Mr. Kozovski is 48 years old. He has a lengthy criminal record consisting of over 50 convictions. His criminal record is appended to this judgment.

[4] In 2000, the defendant was declared a long-term offender. He violated the terms of his supervision 9 times. He was also a federal statutory release violator in 2003.

[5] Upon application of the Crown, I commenced a proceeding to determine if the evidence supported a finding that Mr. Kozovski meets the definition of Dangerous Offender under Code s. 753(1). It is the Crown's onus to prove beyond a reasonable doubt that this designation should apply to the defendant.

[6] Section 753(1) provides:

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

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

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

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

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

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

[7] Where the court finds the offender to be a dangerous offender, it shall impose one of the dispositions set out in s. 753(4). These include (a) a sentence of detention in a penitentiary for an indefinite period; (b) a sentence for the offence for which the offender has been convicted – which must be a minimum punishment of imprisonment for a term of two years – and order that the offender be subject to a long-term supervision for a period that does not exceed 10 years; and (c) a sentence for the offence for which the offender has been convicted.

Dr. Pallandi's Assessment Report

[8] The Crown retained Dr. Derek Pallandi, a qualified forensic psychiatrist, to review the defendant's personal, legal and psychiatric history and to assess whether he meets the definition of dangerous offender. Dr. Pallandi provided an assessment report and was cross-examined at this proceeding.

[9] Upon completion of his testimony, Mr. Kozovski, through his counsel, conceded that the evidence supported a finding that he be designated a dangerous offender and consented to the imposition of an indeterminate sentence. Mr. Hynes informed the court that he had received these instructions from his client and was satisfied that his decision was voluntary and informed.

[10] Mr. Hynes conducted an inquiry to reinforce and make clear on the record the informed nature of the defendant's admission. On Dec. 13, I sought answers directly from Mr. Kozovski about his motivation in conceding the designation and disposition. I am satisfied that Mr. Kozovski has made a free and informed decision.

[11] I will review the evidentiary basis for a finding of dangerous offender, including a review of the defendant's personal and legal history, the nature of his co-morbid major mental disorders and the opinion evidence concerning future risk.

Personal History

[12] Dr. Pallandi reviewed Mr. Kozovski's developmental history. The defendant began losing interest in school in grade 9, contemporaneous with the onset of his criminality and drug and alcohol use. He has no vocational history, but for being employed briefly as a cleaner while federally incarcerated. He suffers from an absence of skills to live independently. He has never been involved in a sustained intimate relationship.

[13] The defendant has been persistently intimidating and threatening to his own family, and extorted money from them at different times in order to obtain drugs. In his earlier years, he was identified as having gang affiliations and anti-social associates.

Criminal History

[14] Mr. Kozovski's criminal record commences in 1984 when he was a youth and has continued uninterrupted to the present. His convictions include property offences, assaults (including with weapons), sexual interference and sexual assault, narcotics offences and numerous breaches of recognizance and probation.

[15] He has committed violent offences against his elderly parents. In 2001, he was found guilty of uttering death threats to his father and brother and assaulting his father with a knife. He received 6 months: see R. v. Kozovski, [2001] O.J. No. 103 (Ont. C.J.).

[16] At the time, he was assessed by Dr. Phillip Klassen, a forensic psychiatrist. Dr. Klassen testified that the defendant suffered from three major mental disorders: bipolar disorder, anti-social personality disorder and multiple substance abuse/dependence disorder.

[17] Dr. Klassen was of the view that there was no treatment available for Mr. Kozovski's anti-social personality disorder, nor was he amenable to psychological counselling. He felt that the defendant's personality traits made it difficult to modify and control his behaviour because he had low frustration tolerance, was belligerent and responded poorly to restrictions. Dr. Klassen believed there was a substantial risk of re-offence.

[18] In the result, Justice D. Hackett designated Mr. Kozovski a Long Term Offender and ordered him supervised in the community for 4 years. As noted earlier, over the course of his supervision by the Correctional Service of Canada, he breached its conditions on numerous occasions and incurred new charges.

Institutional and Social Services History

[19] Mr. Kozovski did not engage in any significant programming while in provincial custody, but for a degree of participation while at the St. Lawrence Valley Treatment Centre. In sum, there was little evidence of sustained effort on his part or rehabilitative success.

[20] Mr. Kozovski was considered to have made a poor institutional adjustment to federal incarceration, engaging in various kinds of misconduct and barely participating in programming. He was, however, at times compliant with treatment while subject to his Long-Term Supervision Order.

[21] While subject to provincial probation, the defendant was largely not able to comply with conditions even when placed in the high intensity stream of supervision.

Mental Health History

[22] Mr. Kozovski's mental health history dates back to when he was in his twenties. He suffers from characterological and personality problems, including immature personality disorder, anti-social personality disorder and substance abuse disorder. He was initially diagnosed with schizophrenia, later amended to bipolar disorder, most recently schizoaffective disorder.

[23] The defendant has been admitted to non-forensic facilities on a number of occasions for suicidal behaviour, intoxication and aggressive behaviour. His compliance with medication and treatment has been sporadic.

[24] His anti-sociality is considered to be independent of his disorders. He is assessed at high probability for violent and/or sexual recidivism. He has been diagnosed as a psychopath.

Substance Abuse History

[25] Dr. Pallandi describes the defendant's use of substances as "longstanding and prolific". He has misused every category of street drugs, in combination at times with alcohol abuse. His primary drugs are cocaine and marihuana. He often traffics in drugs to support his habit.

Dr. Pallandi's Diagnosis

[26] Upon a review of Mr. Kozovski's personal, criminal and psychiatric history, including a brief interview with the defendant, Dr. Pallandi made a diagnosis of three overlapping mental disorders, including anti-social personality disorder "of a severe and chronic nature", substance abuse disorder and schizoaffective disorder, the latter of which includes symptoms of schizophrenia and bipolar disorder.

[27] Unable to conduct a full clinical evaluation because of the defendant's hostility, Dr. Pallandi relied on previous evaluations of his psychopathology. On an actuarial assessment, he considers Mr. Kozovski at high risk to reoffend.

[28] Of significance, a more fulsome clinical assessment leads Dr. Pallandi to the conclusion that Mr. Kozovski's risk of recidivism is even higher than that indicated 17 years ago by Dr. Klassen. This assessment is based on a number of indicators of risk, including "antisociality, substance abuse, limited educational attainment, an absence of vocational skills, poor cooperation with supervision and remediation efforts, poor insight, lack of professional and personal support and a profound lack of insight and motivation to change".

[29] Of particular note, Dr. Pallandi points out that almost immediately after the expiration of his Long-Term Supervision Order, Mr. Kozovski committed an offence of a sexual and violent nature.

[30] A composite actuarial and clinical assessment of risk leads Dr. Pallandi to be of the opinion that the defendant's risk "falls in the high to very high range for recidivism of a violent and/or sexual nature" in relation to a victim pool that is "diverse and includes virtually any member of the public" and that would likely occur almost immediately after removal of high intensity direct supervision. As well, in his view, the potential for managing the defendant's risk is extremely limited. Dr. Pallandi concludes that "there are no realistic or feasible strategies" that might "attenuate Mr. Kozovski's risk" and that his behaviour and risk are intractable.

The Authorities

[31] More recently, in R. v. Boutilier, 2017 SCC 64, Cote J. affirmed the constitutionality of the dangerous offender provisions and reviewed its constituent elements. She made reference to two categories of dangerousness, set out in s. 753(1), one resulting from violent behaviour, the second from sexual behaviour, in relation to both of which Mr. Kozovski is a candidate by reason of the index offence, the extended nature of his prior criminal antecedents, the intractability of his multiple major mental disorders and his resistance to treatment.

[32] As she noted, at para. 17, this provision requires that the Crown establish two elements to obtain a designation of dangerousness. First, the offender must be convicted of "a serious personal injury offence" (SPIO). The predicate offence here of sexual assault is listed in the definition section 752 as a 'primary designated offence' and meets the criteria for SPIO set out in s. 753(1)(b). In this regard, the defendant's present and historical conduct in sexual matters has shown a failure to control his sexual impulses, making it likely this failure will cause "injury pain or other evil to other persons" in the future: R. v. H.(M.B.), 186 C.C.C. (3d) 62 (Ont. C.A.).

[33] Second, the offender must represent "a threat to the life, safety or physical or mental well-being of other persons", in relation to which the judge is to "evaluate the threat posed by the offender on the basis of evidence establishing one of…three violent patterns of conduct set out in s. 753(1)(a)(i)(ii) and (iii).

[34] Mr. Kozovski's patterns of behaviour, both repetitive and persistently aggressive, are statutorily captured in subsections (i) and (ii). In the index offence and in the breadth and persistence of his criminal conduct over decades, the defendant has demonstrated an inability to restrain his behaviour in a manner that has done untold harm to his family and innocent members of the public. This, in combination with the intractability of his disordered nature, indifference to consequences and inability to comply with supervision or benefit from treatment renders him likely to continue to cause serious harm into the future. He is not treatable in any meaningful sense.

[35] This is the only conclusion to be drawn, given Mr. Kozovski's criminal and psychiatric history. As Cote J. stated, at para. 46, "…a finding of dangerousness has always required that the Crown demonstrate, beyond a reasonable doubt, a high likelihood of harmful recidivism and the intractability of the violent pattern of conduct. A prospective assessment of dangerousness ensures that only offenders who pose a tremendous future risk are designated as dangerous and face the possibility of being sentenced to an indeterminate sentence".

[36] Of significance, Dr. Pallandi's opinion, that the defendant "falls in the high to very high range for recidivism of a violent and/or sexual nature", is amply supported by the evidence. In the circumstances, I accept Mr. Kozovski's consent to the designation of Dangerous Offender.

[37] The question of treatability, discussed at para. 45, also informs the question of risk at the penalty stage and the focus on protecting the public. At para. 70, Cote J. adopts the framework for sentence a judge should follow in exercising his or her discretion under s. 753(4.1) that is set out in R. v. Crowe, No. 10-10013990, March 22, 2017 (Ont. C.J.).

[38] In Crowe, Justice Tuck-Jackson described the third step of imposing detention in a penitentiary for an indeterminate period of time as one of last resort where application of the previous steps would not adequately protect the public against the commission by the offender of a serious personal injury offence. That is the case here.

[39] In 2000, Mr. Kozovski was subject to designation as a Long Term Offender. He violated its terms on multiple occasions and committed other offences. In 2003, he was a statutory release violator. In the context of his harmful recidivism, poor treatment prospects and high risk to commit offences of a violent or sexual nature, detention in a penitentiary for an indeterminate period of time is necessary to adequately protect the public. That disposition is to be imposed.

[40] I thank counsel for the thorough and professional manner in which they conducted this proceeding.

Released: January 8, 2018

Signed: "Justice L. Feldman"