R. v. Carter

Court Information

Court: Ontario Court of Justice

Court File No.: Toronto College Park 17-75003649

Date: April 30, 2019

Before: Justice J.W. Bovard

Heard: October 6, 2017; December 21, 2017; October 15, 2018; January 9, 2019

Reasons for Judgment Released: April 30, 2019

Counsel

For the Crown: Ms. C. Jenkins

For the Accused: Mr. M. Feldman

Disposition

For the reasons stated below, I find that Courtney Carter is a dangerous offender and I impose a sentence of detention in a penitentiary for an indeterminate period.

The Issues

The Crown must prove beyond a reasonable doubt all of the required elements to show that Mr. Carter is a dangerous offender and that he should be sentenced to an indeterminate sentence. Of particular importance in this case is the resources that would be available to Mr. Carter for his rehabilitation and especially, his amenability to those resources: his "intractability".

The Charges

On October 6, 2017, Mr. Carter pleaded guilty to ten charges:

• Aggravated assault – s. 268
• Mischief to public property under $5,000 – s. 430(4) X 2
• Possession of a weapon for a purpose dangerous to the public peace – s. 88(1) X 2
• Carry a concealed weapon – s. 90(1)
• Breach of probation – s. 733.1(1) X 4

The Evidence

Agreed Statement of Facts

Counsel submitted an agreed statement of facts which states the following:

Background

Rishwan Mohammed is 28 years old. He immigrated to Canada from Tanzania when he was 18. In February 2017 he was unemployed and had been living in a shelter in downtown Toronto for about 6 months. He was required to leave the shelter daily at 8 AM and would go to the Toronto Reference Library daily. He supported himself through social assistance.

Courtney Carter is 26 years old. On October 2, 2015 he was placed on a probation order for three years after being convicted of two counts of assault, two counts of assault peace officer, failed to comply with probation and mischief under. On December 6, 2016 Mr. Carter was placed on a probation order for 30 months after having been convicted of weapon's dangerous, utter threats, two counts of breach of probation, fail to comply with an undertaking, and fail to attend court.

February 1, 2017 – Toronto Reference Library 789 Yonge Street

On February 1, 2017 Mr. Mohammed left the shelter at 8 AM and went to a shopping mall at Yonge and Bloor with two friends to play cards. At around 9 AM he went to Tim Horton's for breakfast and at 9:30 walked to the Toronto Reference Library. He had a job interview in the afternoon. He went to the second floor and printed off his resume and then sat down to pass the time.

At approximately 11:24 AM Mr. Carter arrived at the library and went to the second floor. There were many people using the Library. At approximately 11:30 AM Mr. Mohammed went to use the bathroom on the second floor as he was preparing to leave for his job interview. Mr. Mohammed noticed two other men inside. Mr. Mohammed went to the single stall and closed the door.

As he was unbuttoning his pants someone kicked the door causing it to shake. Mr. Mohammed was shocked and felt scared. He decided to leave the bathroom immediately. He opened the door and saw Mr. Carter standing in front of the mirror adjusting his clothes. Mr. Carter did not say anything to Mr. Mohammed prior to leaving. The two men had never met before.

Mr. Mohammed walked into the hallway and saw Mr. Carter sitting down reading a book nearby. He approached him and confronted him about kicking the door. Mr. Carter remained seated and did not respond. Mr. Mohammed said "yeah, that's right" and walked away through the book stacks. As Mr. Mohammed walked away in the book stack area he heard Mr. Carter say "what did you say?" Mr. Mohammed continued to walk away and then heard footsteps quickly approaching behind him. There was no one else around. He turned, and saw Mr. Carter take something from his back and raised his left hand in the air. Mr. Mohammed said "huh", closed his eyes to protect himself raising his left hand in front of his forehead. Mr. Carter swung the knife at Mr. Mohammed, striking his left hand causing a significant injury.

Mr. Carter fled the second floor running down a stairwell and exiting out onto Yonge Street at 11:30 AM. Once outside he attempted to hide the meat cleaver in the sewer. When this did not work he threw the meat cleaver up onto the roof of the library and fled the scene. Police canvassed the area but did not locate Mr. Carter.

Mr. Mohammed held his hand against his waist, walked out of the stack area and called for help. Library staff and patrons surrounded him attempting to render assistance. One of the librarians called 911. Police were dispatched at 11:43 AM and arrived on scene within minutes. An ambulance also arrived on scene and took Mr. Mohammed to St. Michael's Hospital where doctors performed emergency surgery on his left hand.

Mr. Mohammed's hand remains in a splint. He has lost all use of his left hand. He takes Tylenol three times per day and feels constant pain. There have been two surgeries on Mr. Mohammed's hand and he attends physiotherapy two times per week.

The police recovered the knife from the roof. It had Mr. Carter's DNA on the handle and Mr. Mohammed's blood on the blade. They also recovered an empty juice bottle from the exit stairs. It had Mr. Carter's DNA on the rim and Mr. Mohammed's blood on the side of the bottle.

No Frills – 1591 Wilson Avenue

At approximately 2 PM Mr. Carter entered the No Frills grocery store located at 1591 Wilson Avenue. He had items from a dollar store in a bag including a white handled knife with an 8 inch blade. He approached a cashier line and began placing items from both stores for scanning. Mr. Carter was mumbling to himself. He was twitching and constantly moving. The cashier noticed that his items were mixed up and started separating them. Mr. Carter asked if he could leave her lane and looked for his money. She said that was fine. He then went to a hallway that is restricted to the public and removed the white handled knife from its packaging. He then walked around the store with the knife and eventually stabbed it into a banana box outside of the security office.

The police were called and arrived on scene at approximately 2:20 PM. Mr. Carter was on scene. Police observed that he was talking to himself, fidgety, and constantly moving. He smelled of alcohol.

Mr. Carter was arrested at 2:30 PM and taken to the security office. A syringe was located in his front right pocket. Other items that seem consistent with drug use were found by the police but police officers left the items on the trunk of the police car as they drove away. Those items were never recovered. Mr. Carter threatened the arresting officers to "kick their ass" when the handcuffs are off. He also threatened one officer to "kick the shit" out of him and said he will "probably cum when he does it". He was removed from the store and placed in a police cruiser and kicked the rear passenger window damaging it. He threatened to kill one of the officers "kids".

Shortly after 3 PM Mr. Carter was paraded at 31 Division police station. Due to his erratic behaviour Mr. Carter was taken by ambulance to Humber Wilson Hospital.

While at the hospital Mr. Carter was belligerent and verbally aggressive toward the police. At around 5 PM he smashed a wall phone and was placed in four point restraints.

February 2, 2017

On February 2, 2017 at approximately 5:30 PM police arrived at the Humber Valley Hospital to arrest Mr. Carter for aggravated assault. While being escorted out of the hospital he kicked at a chair and spit on the ground saying "there ya go and I've got Hep C". Prior to being placed in the police car he spit on the trunk. Once placed inside the car he spit onto the rear passenger window.

Analysis of the Aggravated Assault

The facts of the aggravated assault are disturbing. It was a grisly attack on Mr. Mohammed. Mr. Carter aimed for the head, but Mr. Mohammed was able to put up his left hand in defence. However, the injuries were gruesome. The medical records describe a "near amputation" of his left hand. Mr. Carter completely lacerated Mr. Mohammed's radial and ulnar arteries, left median and ulnar nerves, and 12 tendons in his hand. In addition, he fractured his wrist.

Mr. Mohammed has suffered considerably physically and psychologically. He still labours under considerable handicaps in both of these areas as a result of the assault.

In his Victim Impact Statement he stated that the normal physical activities of everyday life are difficult for him due to the limited use of his hand. Everything takes longer. He can no longer wear clothing that has buttons or zippers unless someone helps him to put it on and take it off. He cannot tie his shoes without help. He needs help doing his shopping and cleaning his home. He cannot work as he used to. He is afraid when he is in public. He has frequent nightmares.

His hand is permanently disabled. He had three surgeries in the last two years. There is nothing more that the doctors can do for him. He goes to physiotherapy twice a week.

Financially, he has to spend a lot of money in transportation to go to medical appointments. He has to spend $250 a month for medication for problems with blood clots that arose from having lost so much blood in the attack. He will be on this medication for the rest of his life.

Aggravating Circumstances

In addition, as the Crown points out, the attack was aggravated by having been carried out in the Toronto Reference Library, which is a very public place. Mr. Carter was in a condition in which he quickly angered to an extreme degree. He went to the library armed with a meat cleaver. The danger to the public was high.

Moreover, on the day of the assault, Mr. Carter was breaching two court orders that he not possess any weapons. On October 2, 2015, the court put Mr. Carter on probation for three years for four assaults. The court ordered that he not possess any weapons. On December 6, 2016, the court convicted him of possession of a weapon for a purpose dangerous to the public peace and made a weapons prohibition order under s. 110 of the Criminal Code for 10 years. In addition, these probation orders required that he keep the peace and be of good behaviour.

Additional Offences

In addition to the aggravated assault, Mr. Carter pleaded guilty to the following offences. The agreed statement of fact applies to these offences as well:

• Mischief to public property under $5,000 – s. 430(4) X 2
• Possession of a weapon for a purpose dangerous to the public peace – s. 88(1) X 2
• Carry a concealed weapon – s. 90(1)
• Breach of probation – s. 733.1(1) X 4

The circumstances of these additional offences are relevant to the issue of whether I should designate Mr. Carter a dangerous offender because they relate to the element of incorrigibility. They demonstrate his attitude towards the justice system, the persons that enforce and administer it, and the court's efforts through its orders to assist him to curb his anti-social, criminal behaviour.

After Mr. Carter attacked Mr. Mohammed, he went to a No Frills store where he was acting very agitated. He obtained a large knife. He went to a hallway that is restricted to the public and removed the knife from its packaging. Then he walked around the store with the knife eventually stabbing it into a banana box outside of the security office.

Mr. Carter had just attacked Mr. Mohammed. He was clearly still quite agitated. He was armed. He was high on drugs. The persons in the No Frills store were clearly in danger from him and from his actions.

When the police apprehended Mr. Carter at the No Frills store he was aggressive and belligerent towards them. He threatened them. He threatened one of the officer's children. He damaged the window of the police cruiser.

The next day when the police were taking him from the hospital to the police station he spit on the ground, on the trunk of a police cruiser, and on one of the windows inside the cruiser. He told them that he had hepatitis C.

Mr. Carter's Criminal Record

It is important to ascertain exactly what Mr. Carter's record is for the purpose of these proceedings. I found it difficult to accomplish this task because the materials with regard to his record at times reported different dates and sentences. Sometimes they were inconsistent and contradictory.

The materials contain transcripts of some of the sentencing hearings, various criminal records that were different from one another, and some probation orders. I tried to piece it all together by using all of these sources. I am satisfied that I achieved an acceptable level of certainty in this regard.

One thing is clear: the offences to which Mr. Carter pleaded guilty to before me are the last in a long list of offences on his criminal record that started when he was a youth.

Youth Record

As a youth he was found guilty of:

• September 13, 2005: Assault X2 – sentenced to a discharge.

• December 14, 2007: Assault with a weapon, possession of a weapon for a purpose dangerous to the public peace and mischief to property (not clear whether it was under or over $5000) – sentenced to probation for 2 years in addition to 30 days pre-trial custody.

• February 12, 2008: Assault with a weapon, mischief to property (not clear whether it was under or over $5000), and breach disposition – sentenced to probation for 18 months.

Adult Record

His adult record began six years later, almost to the date. It is as follows:

• February 11, 2014: Theft under $5000 – one day pre-trial custody, plus one day jail.

• May 8, 2014: Aggravated assault (knife used) – 4 months pre-trial custody, plus 8 months jail and probation for 2 years.

• August 15, 2014: Threatening bodily harm, assault, mischief under $5000 (knife used) – considering 12 days of pre-trial detention, the court suspended the passing of sentence and ordered probation for 2 years, counselling ordered for mental health and substance abuse.

• October 28, 2014: Threatening death, mischief under $5000 – considering 12 days of pre-trial detention, the court suspended the passing of sentence and ordered probation for 2 years, counselling ordered for mental health and substance abuse.

• May 27, 2015: Assault with a weapon (brandishing a knife), utter death threat, mischief under $5000 (police car) – 25 days jail concurrent for the assault with a weapon and the death threat; 8 days consecutive for the mischief, minus 43 days of pre-trial detention, plus probation for 18 months, counselling as recommended by probation officer.

• October 2, 2015: Assault X2, assault peace officer X2, fail to comply with probation, mischief under $5000 – considering 63 days of pre-trial custody, the court sentenced him to four months jail concurrent for the assaults, 2 months jail consecutive for the fail to comply with probation, 2 months jail concurrent for the mischief under $5000 (police car), plus probation for 3 years with conditions not to possess weapons, counselling for substance abuse and anger management, plus a s. 110 order for life.

• October 17, 2016: Fail to comply with recognizance (for which he was on pending sentence on the charges of December 6, 2016) – one day in jail considering 18 days pretrial custody.

• December 6, 2016: (1) Possession of a weapon for a purpose dangerous to the public peace (knife), (2) fail to comply with an undertaking given to an Officer-in-Charge, (3) fail to attend court, (4) uttering threats, (5) fail to comply with a probation order, (6) fail to comply with a probation order – After consideration of the equivalent of 167 days of jail for his pre-trial custody, the court sentenced him to 33 days jail for the weapons offence and 33 days concurrent for the rest of the offences, plus probation for 30 months, counselling for substance abuse, anger management, mental health issues, and life skills. The court also made a weapons prohibition order under s. 110 for 10 years.

Pattern of Escalating Violence

As can be seen from Mr. Carter's record, and from the offences for which he is before me, his criminality and dangerousness to the public is escalating. Including the offences before me, since May 8, 2014, he has been convicted on five separate occasions of violent offences in which he used a knife or a meat cleaver.

The last attack with the meat cleaver was the most serious of them all. Had Mr. Mohammed not raised his hand to protect his head, Mr. Carter could have very well struck him in the head with the meat cleaver and Mr. Carter could be facing a charge of homicide.

In addition, he is complying with court orders less and less. During this same time period he has been convicted of six offences of breaching court orders. The court ordered him to take counselling four separate times during this period. It is obvious that these efforts were in vain. This shows that despite the initiatives of numerous judges and of probation officers, they have not been able to diminish Mr. Carter's violent criminal behaviour through their orders and supervision.

Expert Evidence – Dr. Mark Pearce

Dr. Mark Pearce, a forensic psychiatrist, gave expert evidence regarding his examination of Mr. Carter. He diagnosed Mr. Carter as having "a very serious personality disorder, namely a 'mixed' (technically, unspecified) personality disorder with both antisocial and borderline traits". He also has "a very serious, treatment resistant poly-substance use disorder".

Dr. Pearce also testified concerning the risk that Mr. Carter poses to the community and how that can best be managed.

His curriculum vitae and the report that he wrote are exhibits. He has done numerous risk assessments. He has been involved in approximately 80 dangerous offender or long term offender applications. He testified in approximately 40 of these cases. He has testified for both Crown and defence.

Mr. Carter's Background

Mr. Carter was 26 years old when Dr. Pearce interviewed him in December 2017 and January 2018 (now, he is 27 years old). He has been in custody since February 2017. When he was last in the community before his incarceration he was homeless, living primarily on the street.

Dr. Pearce interviewed Mr. Carter two times for a total of 5.75 hours. In addition, he reviewed approximately 11,251 pages of background materials regarding Mr. Carter. These materials are in Appendix A to his report. The sources of the materials are hospital records, treatment facilities, court proceedings, and Catholic Children's Aid Society (CCAS) records. He tried in vain to contact Mr. Carter's mother. She did not respond to his voicemail messages. He did speak to Mr. Carter's grandmother, Ms. Jaqueline Smith, however.

Early Years

In his extensive review of medical records, CCAS records, and other records, Dr. Pearce details Mr. Carter's history from early childhood. Unfortunately, it shows that Mr. Carter exhibited anti-social violent behaviour from an early age. Many government agencies and individuals have tried to help him, but to no avail. There have been some brief periods of calm and budding progress, but they were always eventually dominated by the predominant nature of his life, which is violent dysfunction that often results in threats of violence and actual violence towards others.

Mr. Carter had a very difficult and abusive childhood. Mr. Carter's family has not been able to help Mr. Carter, largely due to them having their own serious problems. Both his mother and his grandmother have psychiatric issues. He never had a father figure in his life.

His mother could not cope with him. The CCAS was involved with him from the age of 3 or 4 years. From 2001 to 2007 he was in 11 different group homes. Eventually, the court made him a Crown ward. When he was 17 years old the CAS stopped supporting him because he was using the money that they gave him to buy drugs.

Mr. Carter described his childhood as "pretty fucked up. There was a lot of abuse." He reported being physically and sexually abused by staff in group homes. He was reluctant to give details. This is understandable.

He attempted suicide when he was six years old. He jumped out of a window when he was seven years old. When he was 12 years old, he tried to jump off of a 23rd storey balcony. In 2016 he tried to slash his wrists and neck.

He told Dr. Pearce that when he was 7 or 8 years old he was diagnosed with "ADHD, ODD and something else. Maybe some kind of learning disability". For years he was medicated for these conditions.

The school put him in special education and/or behavioural classes at the age of 7 or 8 years.

Dr. Pearce relates that Mr. Carter was suspended from school "regularly," as of kindergarten. He was involved in physical altercations and "generally didn't listen." He was expelled from school twice, the first time being in senior kindergarten. At that juncture he "beat the kid up and then called the teacher a cunt or something like that." He behaved as such given his living circumstances and as such he "just couldn't be bothered with anything."

He slowly began to engage in criminal activity. From the age of seven or eight years he developed a shoplifting habit. He stole things for others to make them happy. He set "newspapers and stuff like that" on fire but he didn't cause any serious property damage.

When he was twelve years old he stole a vehicle with a friend and sold a small quantity of marijuana and crack cocaine. He also stopped attending school when he was twelve years old. He was in grade six. He was taking drugs and drinking.

As time went on, he got involved in several physical altercations. In one, when he was 15 years old, he suffered a serious stab wound. It appears that this is when he started to carry a knife.

Dr. Pearce interviewed Mr. Timothy King, a Covenant House worker that has dealt with Mr. Carter since he was an adolescent. He confirmed what Dr. Pearce found in the records. Regarding Mr. Carter's drug abuse, Mr. King said that when he had periods of sobriety, they did not last long. Despite Mr. King's efforts to repeatedly encourage him to get help for drug abuse, Mr. Carter was unable or unwilling to do so.

On two occasions he obtained housing for Mr. Carter, but his substance abuse undermined these efforts.

Mr. King reported that although Mr. Carter said that he wanted to make changes in his life, he consistently did not follow through. Although he no longer has a mandate to work with Mr. Carter because of his age, he would be willing to help him however he could. But given his history, he was not sanguine about Mr. Carter's ability to engage in substance abuse treatment programming.

Employment History

Dr. Pearce states that Mr. Carter has only worked sporadically. The longest time that he held a job was a construction job where he worked for one week. His employer fired him because he got heat stroke. Mr. Carter wanted to continue working, but his employer would not let him. This discouraged him. He told Dr. Pearce that he does not know why he has not worked any more than this. He said that he was probably being lazy.

Since 2010 or 2011, he has been on the Ontario Disability Support Program due to anxiety, depression and drug addiction.

Relationship History

Mr. Carter has had one serious relationship. He has one child, who was born on December 10, 2015. The child was apprehended at birth. She was adopted when she was one year old.

Psychiatric History

Mr. Carter's maternal grandmother suffers from schizophrenia. His mother has mental health issues. It is not clear what they are. She abused crystal methamphetamine and perhaps other drugs. On many occasions he took drugs with his mother. He also used drugs with his stepfather.

Mr. Carter's involvement with mental health professionals started when he was five years old. He has continued to see them during his whole life.

Mr. Carter has attempted suicide five times. Each time he was under the influence of crystal methamphetamine.

He has also "self-harmed on dozens of occasions, typically when high". He started self harming when he was 12 years old. He does not know why he does this.

He is currently under the care of the psychiatrist at the detention centre. He said that the medications that the psychiatrist prescribed are helpful. He plans to continue with them even when he is released from custody.

Medical History

Now, Mr. Carter has hepatitis C, but he reported that his medical health is "okay".

Substance Abuse History

Dr. Pearce states that Mr. Carter started abusing various substances at a very early age. He was 11 years old the first time that he used marijuana. He has been smoking it "for the most part" on a daily basis since he was 12 years old. He typically smokes up to a gram of marijuana every day. He does not think that this is a problem.

Mr. Carter started drinking at the age of 12 years. At first, he drank a few beers throughout the week and up to 12 beers on the weekend.

When Mr. Carter was 15 he started smoking crack cocaine. He did so "most days". He consumed up to a "half ball" per day. This caused financial hardship for him so he "pimped out my girlfriend" to obtain money for drugs.

Mr. Carter recounted how this came about. One day, when his partner confronted him about his drug use he "pulled her into the bathroom and made her smoke a piece". He told her that she was a "crackhead" too. She eventually agreed to work as a prostitute.

Mr. Carter said that this was an example of him doing things that he normally would not do. However, he continued to use crack cocaine for a year. He stopped using it by turning instead to "soft cocaine", which he snorted most days for a year or so. The last time that he used cocaine was in January 2017.

After being stabbed when he was 15 years old, the doctors released him from the hospital without prescribing any pain medication. His mother gave him OxyContin, which led him to the regular use of opioids.

When he was 17 years old, he started injecting opioids.

When he was 18 years old, one of his mother's friends introduced him to heroin.

When he was 19 years old, a doctor prescribed methadone for him. This interrupted his daily use of opioids. He used to methadone for one year. Eventually he "just stopped taking" his methadone.

The last time that he used opioids was the day before his arrest on the charges before me. He said that he "realized my mental health was slipping. I thought fuck, I need to get some heroin into my system to help me because I was suffering from the effects of the meth and the meth psychosis. So I thought if I got some heroin into my system, it would balance my shit out".

Mr. Carter told Dr. Pearce that he planned to avoid using any chemical drugs. He was willing to return to his methadone treatment to assist him to avoid abusing opioids.

Regarding alcohol his abuse, Mr. Carter said that when he was 16 he drank a 26 ounce bottle of Ouzo every day. I find this unlikely. I agree with defence counsel that this is bravado on his part. However, in a more realistic vein he said that when he was 25 years old he "drank until he passed out".

Mr. Carter admitted consuming non-potable alcohol. He has drunk hand sanitizer while in custody and once when not in custody he drank mouthwash.

Mr. Carter's alcohol abuse has continued to the present day. In addition, along the way he has added substances that he now currently abuses on a regular basis.

With regard to Mr. Carter's use of stimulants, he started using amphetamines when he was 16 years old. For several years he used this substance every day. He was also selling crystal methamphetamine and ketamine. He preferred crystal methamphetamine and at times MDMA (ecstasy) because he felt that it was "more harmless". He smoked, snorted and injected crystal methamphetamine. He also abused prescription-based stimulants.

The effects of these drugs on him was drastic. He spent up to $40 on amphetamines every day. His use of stimulants caused him not to be able to sleep. It also induced severe paranoia and weight loss. It also caused psychosis "where I can't tell what's real and what's not".

The last time that he used stimulants was on the day that he committed the offences which are before me.

Mr. Carter said that he used drugs in custody "but not often". He admitted to snorting crushed Biphentin. Dr. Pearce said that when he suggested that this was inappropriate, given the offences before the court, Mr. Carter said "It makes me feel better, it makes me feel normal. It isn't enough to cause any bad side effects. It is only 20 to 40 mg".

He admitted to smoking marijuana "a few months ago" while in custody.

In addition, he took Suboxone while in jail. It was not prescribed to him, but he bought it from someone in the jail. In order to get a discount on the price he purchased Bupropion from one inmate and sold it to another.

Mr. Carter said that when he gets out of custody he will deal with his abuse of amphetamines by going to a doctor to get a prescription for Ritalin, Concerta or Vyvanse. Then he could return to school. He said that he needs medication in order to focus. It's not that he is lazy, he just lacks focus. In addition, he has very little drive. He finds that "some kinds of amphetamine medication helps that a lot". Only the crystal methamphetamine is harmful.

This evidence attests to the fact that even when Mr. Carter is in custody he abuses drugs and even traffics in them in order to obtain the drugs that he wants to consume. Being in jail does not deter him. It is also noteworthy that by doing this he is breaching the condition of his probation orders that he keep the peace and be of good behaviour. This is another indication that his behaviour cannot be controlled with court orders. He does what he pleases.

Mr. Carter has done very little with regard to obtaining treatment for his substance abuse. Moreover, he does not show very much interest in doing so.

Treatment Efforts

Mr. Carter went to a detoxification facility on several occasions.

Once, he went to an in-patient treatment program at Renascent House. He only lasted for 11 days. He was kicked out of the program because he got into an argument with a patient, and according to Mr. Carter, "scared the staff or something". This was the last time that he participated in in-patient substance abuse treatment.

Occasionally, he went to Alcoholics Anonymous meetings.

Mr. Carter told Dr. Pearce that he thinks he could benefit from substance abuse treatment programming. However, he said that he worried about the court putting him on "terrible conditions" that would prevent him from even smoking a joint or drinking a beer. His opinion is that such restrictions would be unjust and difficult for him. They would make him "very unhappy".

He thinks that he can safely use marijuana and alcohol in the future. He said that he would not "drink the hard stuff and I wouldn't drink when I'm troubled. Like I would recognize if I'm troubled". I find that this shows a significant lack of insight into the degree to which he is addicted to drugs and alcohol.

It also demonstrates a concerning lack of understanding about what motivates him to drink and abuse drugs. For example, regarding his use of marijuana, Dr. Pearce says that when he asked Mr. Carter if he planned to continue using marijuana when he is back in the community, he stated: "For sure. It makes everything more enjoyable". He explained that when he committed the offences which are before me he "wasn't really smoking weed. That's part of the problem; I was injecting and smoking meth. I was just abusing meth".

He said that he would consider taking anti-alcohol medication but he did not think that he needed it. My concern in this regard is that he will not take it if he does not think that he needs it. He told Dr. Pearce that the kind of treatment he needs is something "like an outpatient program". He would agree to a residential program, but again, he did not think that he needed it. Therefore, I doubt that he would participate in such a program.

Defence Arguments Regarding Treatment

The defence argued that the treatment that the system has offered to Mr. Carter has not been suitable for him. This is one of the reasons that it failed. No individual therapy has been offered to him as his probation officer Ms. Almond testified would be required.

Individual therapy may or may not have helped Mr. Carter. There is no way of knowing that. He had a meaningful, long-term relationship with Mr. King, but that did not stop him from continuing to abuse drugs and commit serious violent crimes.

The defence also complained that Mr. Carter "with a severe substance abuse problem, was removed from the Renascent program for drinking cough syrup". This seems to be an attempt to mitigate Mr. Carter's actions, if this is truly the reason for which he was ejected from the program. I would make two points in this regard.

First, this is not what Mr. Carter told Dr. Pearce. As explained above, he told Dr. Pearce that he was kicked out of the program because he got into an argument with a patient and "scared the staff or something".

Second, even if he was dismissed from the program for drinking an intoxicant, these rehabilitative programs have the right to make rules that in their wisdom and experience are required in order to help the participants to rehabilitate. It is completely reasonable that one of the rules would be that the participants not be allowed to consume intoxicants while in the program. Such behaviour undermines the program. It also jeopardizes the person's rehabilitation and potentially that of the other participants.

Probation Officer Evidence

The defence criticized the probation department for not paying sufficient attention to Mr. Carter. During cross-examination of Dr. Pearce, the following exchange took place:

Q. It would seem to me and I ask you this, it seems that Mr. Carter's never really been exposed to conditions that would make treatment successful for him?

A. I think I – what I could say about that is looking at the probation officer knows (sic) of which there's many years duration. Like he was often you know not reporting, not abiding by conditions and no one seemed to you know do much about it until there was a re-offence.

Q. Right.

A. Which I was a bit – I mean – I mean, that's – I would say that that happens, I see that a fair amount but it was quite significant with him and I think everyone knew he was a high risk person and it still was – I would say fairly lackadaisical, from my read of the records.

Q. Yeah. Right, and so had somebody who really pays attention and really follows along with his case would be of great benefit to him?

A. I think it would help him.

Q. As I'm just reading between the lines of your last comment, it seems that he may have – I don't know if the analogy really works, but he's fallen through the cracks to some extent, right?

A. I think he was doing what he wanted to do without any significant consequences...

Q. Right.

A. ...until there was, you know, a new offence.

Q. Right.

A. ...which is probably too late.

It appears that this refers to Ms. Almond's evidence, discussed below, regarding not charging Mr. Carter with breaches of his probation. She did not charge Mr. Carter with breach of probation for not following through with her recommendations regarding counselling for his drug abuse because he would have wound up in jail and then he would not have been able to access treatment resources. She still had hope that she would be able to get him into a treatment facility. Unfortunately, he never did. But that was his decision.

Ms. Almond testified that she also never charged him with breaching his probation for using drugs. Probation officers leave those types of charges to the police to lay. She did not report his use to the police because "That's not our common practice to – most of our clients come in quite frankly, impaired. I would be spending all day long calling the police about my clients if that were the case so – so, I mean, inevitably what happens is – is if they're using a lot, in my experience they are – the police encounter them on the street and it ends up being a breach or –or further charges".

I find that given the probation department's extremely heavy case load, that these strategies are reasonable. I do not characterize this as Mr. Carter "falling through the cracks". He was not being ignored. She directed him to take counselling as the court ordered him to do. He did not do it. By not charging him with breach of probation she was trying to help him to stay out of jail in the hopes that he would agree to enter a treatment facility.

Charging a probationer every time that he or she breaches a condition of probation may not be the best way to handle the situation, especially when they are subject to severe addictions.

Therefore, I reject the argument that probation services dealt with Mr. Carter in a "lackadaisical" manner, and that he fell through the cracks. This submission fails to take into consideration Mr. Carter's contribution to the state of affairs in which he found himself. In addition, it does not acknowledge what I find to have been reasonable strategies to deal with his very difficult case.

Defence Arguments Regarding Diagnosis and Treatment

The defence also argued that past attempts at treatment for Mr. Carter failed because he was misdiagnosed and subjected to incomplete treatment proposals. Doctors prescribed medications without treating underlying personality disorders. Now that there is a "complete and accurate diagnosis" effective treatment can begin.

As discussed below, Dr. Pearce contradicts this argument. He stated in his report that there is "very little treatment for individuals with antisocial personality disorder. There is little empirical evidence suggesting that these individuals are capable of personality change, even with assiduous treatment".

Mr. Carter's Self-Assessment

Between the evening of January 31 and February 1 when he went to the Toronto Reference Library, he smoked about a gram of crystal methamphetamine. He used half of a "point" of heroin intravenously at the Bloor subway station, and drank 13 ounces of gin.

He agreed that his behaviour was out of control when he assaulted Mr. Mohammed. He would avoid this type of behaviour in the future by not using crystal methamphetamine and not having anything to do with his girlfriend, Lacey. He said that he thought he heard her in the bathroom at the library. That was why he kicked at the bathroom stall where Mr. Mohammed was.

He said that he did not think that alcohol was a factor in the offence. But he admitted that "when I am drinking and on crystal, maybe it can affect the level of stupidity I'm capable of".

Mr. Carter told Dr. Pearce that he does not need anger management therapy. He does not think that he is a dangerous person. He just has a serious drug problem. He also denies that he has a bad temper. One has only to examine Mr. Carter's criminal record for violent offences, and the offence before the court, to see how this statement is another revelation of how little insight he has.

Mr. Carter feels that he functions well when he is "on a steady diet of weed and heroin". He does normal things, but he does them while on drugs. He just has to stay away from crystal meth. He would do this by staying away from the area of Yonge Street and Wellesley Street. He did not think that he had to abstain from alcohol and other drugs. But he thinks that he could survive on just methadone and cigarettes. But he would like to be able to drink. He did not know why the use of these substances is so important to him.

Defence Arguments Regarding Rehabilitation Resources

The defence argued that "it appears that [rehabilitative] programs were infrequently made available to Mr. Carter. While referrals were made, only minimal treatment or counselling occurred". In addition, the wait lists for programs are long. However, the defence concedes that Mr. Carter would lose his place on the list when he was arrested anew and kept in custody. This result is, of course, his own doing.

I agree that the system is strapped in terms of providing plentiful resources for the rehabilitation of a person in Mr. Carter's situation. However, I find that the evidence shows that significant steps were made to offer meaningful resources to Mr. Carter, but he did not avail himself of them. I found the evidence of Mr. King's involvement with Mr. Carter particularly telling in this regard. Especially, since he was the person with the longest involvement with Mr. Carter. He has worked with Mr. Carter since he was 16 years old.

The defence referred to the fact that Mr. Carter was often homeless. Ms. Almond testified that this was one of the biggest impediments to successful treatment. However, it should be noted that on two occasions Mr. King secured housing for Mr. Carter, but he did not take advantage of it. His substance abuse undermined Mr. King's efforts.

The defence argued that "Mr. Carter has never been aggressively monitored in the community or had the kind of treatment that is available in the federal penitentiary. It is this latter kind of treatment that may be successful for Mr. Carter".

The defence did not describe what "aggressive monitoring" would look like. The court repeatedly put Mr. Carter on probation, with which he did not comply. Mr. King worked with him for years. Mr. Carter said that he very much liked Mr. King. But still, he would not avail himself of the resources that were offered to him. The evidence shows that in large part this was because Mr. Carter does not think that he needs help. He was shown the resources, but he refused to take refuge in them.

The defence pointed out that at various times, Mr. Carter took available educational programs while in custody, but they were not linked to programs in the community so "reform stalled as soon as he was released from custody".

This argument assumes that Mr. Carter enjoyed an element of "reform" as a result of the programs that he took while he was in custody. This is a dubious assumption. I find that given the evidence of Mr. Carter's attitude toward participation in the programs that he was offered in the community, the probable reason that any reform that he may have experienced in these programs stalled was more his unwillingness to participate in available programs than because of the lack of a link between programs in the jail and in the community.

The defence did not specify to which "in custody" programs he was referring. But I think that it is reasonable to assume that they are similar in nature to the ones for which the defence adduced seven certificates of achievement that Mr. Carter earned while waiting for this application to be completed.

These programs dealt with anger management, substance abuse, setting goals, and recognizing healthy relationships. One certificate was for attending seven of ten sessions of an Indigenous program. Mr. Carter is not an Indigenous person. He attended these sessions because he feels an affinity toward Indigenous people. He feels that he is an ally to Indigenous people. He identifies with them in the sense that they both have suffered considerable disadvantages.

These efforts are commendable, but they are very limited. Four of the programs lasted one hour. The other certificates did not say how long they lasted. It is reasonable to surmise that they were of short duration. Consequently, they are not able to demonstrate a serious long-term commitment to rehabilitative programming, which is what he requires.

As for what "may be successful for Mr. Carter" in the penitentiary, there is no way of predicting this. Will there be different treatments and counselling that will make significant inroads into rehabilitating Mr. Carter? Dr. Pearce said that the treatment available in through Corrections Canada is second to the mental health system. He said that there is "some reason to think" that Mr. Carter will benefit from it. However, I find that this hope rests on speculation.

Much of the success of any new treatments or counselling depends on Mr. Carter. Will his attitude toward treatment change just because he is in the penitentiary? His track record underscores the dubiousness of this expectation.

Dr. Pearce acknowledged that while in custody there are incentives in the areas of "rules about parole and placement, security levels" that might motivate Mr. Carter to participate in treatment and counselling.

This may be so, but when the incentives are removed, will Mr. Carter continue to participate in treatment and counselling? Considering his past behaviour, I am not optimistic about it. In any case, can forcing a person through incentives bring about genuine rehabilitation that sticks when the incentives are no longer there?

The defence mentioned several aspects of being under supervision in the community pursuant to a long-term supervision order that might motivate Mr. Carter to participate in rehabilitative programs. The primary one is that he could be returned to jail if he refuses. However, the threat of jail has not deterred him from abusing drugs and from committing serious violent crimes in the past. The evidence shows that he uses drugs even while in jail.

Housing can be made available, but we have already seen what happened when Mr. King arranged for housing for him on two occasions.

Job training is another resource that would be available to Mr. Carter. However, Mr. Carter has hardly expressed a desire to be employed. His history shows that employment is not an important consideration for him.

The defence also pointed out that Mr. Carter would be monitored very strictly on a long-term supervision order. Any anticipated or actual breaches of his conditions would result in quick action to apprehend and incarcerate him.

This sounds efficacious in theory. But I would refer to Mr. Carter's feelings about strict monitoring. Above I related that he told Dr. Pearce that he worried that the court would put him on "terrible conditions" that would prevent him from even smoking a joint or drinking a beer. He felt that such restrictions would be unjust and difficult for him. They would make him "very unhappy". His attitude does not bode well for the effectiveness of strict conditions to monitor him in the community.

The defence pointed out that Ms. Gillespie outlined fine programs that would be available to Mr. Carter in the penitentiary. I do not doubt that the programs are good. But they depend to a large extent on the offender's motivation to participate in them. Herein lies the weakness in the defence argument that these programs will rehabilitate Mr. Carter. As the Crown pointed out in her submissions, Ms. Gillespie testified that unmotivated offenders cannot be forced to participate in rehabilitative programming.

Mr. Carter is not a person who has seriously tried in the past to take advantage of rehabilitative programs. His is not the case of a person who takes meaningful steps to rehabilitate himself, falls off the wagon, gets back on and keeps trying, all the while showing some progress toward the ultimate goal. For a person such as this, rehabilitative programming presents a reasonable hope for rehabilitation.

Mr. Carter's history in this regard shows that he has hardly ever even gotten on the wagon. His occasional concessions that he could benefit from treatment have never resulted in the completion of significant programs. He has often stated that he does not need rehabilitation. He is not a person who is struggling to improve. He is just struggling to live his life the way that he has always lived it, which does not include determined efforts to take programs designed to help him to rehabilitate. According to what he told Dr. Pearce, he tries to rehabilitate himself by mixing drug cocktails that he thinks will help him.

I note that the most the defence could say is that there are "cautious reasons for optimism". I thank the defence for its candor.

Mr. Carter's Statement to the Court

I considered Mr. Carter's statement to the court. He said the following:

Your Honour, I'm truly sorry for the events that led to my arrest and incarceration, and not just because I've been in jail for two years. I'm sorry for assaulting Mr. Mohammed. I've been stabbed a couple of times myself. It leaves psychological scar tissue as well as physical. The drug I've been addicted to for the past nine years is crystal meth. It causes you to be in a schizophrenic-like state. Its hallucinatory effects at the time of my violent offences, I acted out violently because I was afraid, but don't get me wrong, there's no excuses for my behaviour. The past two years have been eye-opening, and when one suffers with the regret that I do pertaining to most of my life, jail can be hell-ish and it has. This is the longest I've ever been incarcerated, and it is and will be a major deterrent as far as drugs and crime. I've always dreamed of being a functioning member of society. I just require some help. Please let me get that help, and I will show the court and probation and parole what good I am capable of.

I thank Mr. Carter for this statement. He states that his current incarceration will be a deterrent to him "as far as drugs and crime". However, his behaviour in custody regarding abusing drugs and trafficking in them contradicts this.

In addition, the statements that he made to Dr. Pearce regarding his desire to continue using some drugs and not needing treatment or rehabilitation, also belie the sentiments that he expressed to me.

Diagnosis

Dr. Pearce's diagnosis is on pages 49 and 52 of his report. He found that "it is clear that [Mr. Carter] suffers from a very serious, treatment resistant polysubstance use disorder" (my emphasis).

Alcohol and crystal methamphetamine are the "most problematic substances of abuse" for Mr. Carter. I note in this regard that Mr. Carter himself has referred to the deleterious effects that methamphetamine has on him. Of great concern is that between the evening of January 31 and February 1 when he went to the Toronto Reference Library and attacked Mr. Mohammed, he smoked about a gram of crystal methamphetamine.

Moreover, he was intoxicated in part on this substance when he assaulted Mr. Mohammed.

He concludes that "Mr. Carter suffers from a severe polysubstance use disorder and a serious mixed personality disorder". Dr. Pearce specified it as "a very serious personality disorder". It is called a "mixed" disorder because "he gets strong traits from two different personality disorders … the social personality disorder and borderline personality disorder".

He found that Mr. Carter does not suffer from a major mental illness, such as schizophrenia or bipolar affective disorder. He "presented as psychotic at times but those symptoms were substance-induced and they cleared when drugs of abuse left his system". He has had the substance abuse problem for "many, many years".

Mr. Carter said that he heard voices. Dr. Pearce stated that if he did, it was "attributable to [Mr. Carter's] personality structure". This means that the hearing of voices is "either … substance based, said in the context of his personality structure, or it's … related to his personality disorder".

Mr. Carter had a very difficult childhood. He was diagnosed with ADHD during this time. Dr. Pearce said that Mr. Carter "may continue to meet criteria for this disorder, albeit he attended well during our interview".

Mr. Carter's personality problems were evident from the age of three or four years. His caregivers could not cope with him. He had "conduct disorder", which is very rebellious, bad behaviour. This has continued into adulthood.

Characterological Structure

With regard to Mr. Carter's "characterological structure", Dr. Pearce pointed out that he is "the product of a fractured and unstable family of origin". His father was criminally inclined and his mother suffered from mental health concerns of some sort. His grandmother helped raise him, though she also has her own mental health challenges.

Mr. Carter "was rebellious before entering kindergarten. His mother couldn't adequately parent him and the assistance of the child welfare authorities was enlisted, at which point he was placed into … (well over 10) different facilities".

Mr. Carter "met criteria for a severe variant of early onset conduct disorder". Dr. Pearce explained that a "conduct disorder" is:

a diagnosis that covers a heterogeneous group of individuals which have in common a repetitive and persistent pattern in which the basic rights of others or major age-appropriate societal norms or rules are violated … Individuals with a conduct disorder tend to have little empathy or concern for the feelings, wishes, and well-being of others … [they] frequently misperceive the intentions of others as more hostile and threatening than is the case, and respond with aggression … They are often callous and lack appropriate feelings of guilt and remorse.

He also may have been physically, emotionally and/or sexually abused; … [he] was likely exposed to adverse childhood experiences … which often cause great disruption in terms of personality development.

During his childhood Mr. Carter's "behavioural concerns remained paramount … He was regularly and repeatedly suspended from school. He was expelled too".

Mr. Carter benefited from "intensive, consistent treatment at times". But as he got older he became more rebellious. He started being charged with criminal offences when he was 12 years old.

His antisocial attitude has continued into adulthood. Dr. Pearce remarked that "problematic personality attributes remain evident in that he lacks empathy and has a significant temper. Overall, in my opinion this gentleman suffers from a very serious personality disorder, namely a 'mixed' (technically, unspecified) personality disorder with both antisocial and borderline traits".

Dr. Pearce explained that "The essential feature of antisocial personality disorder is a pervasive pattern of disregard for, in violation of, the rights of others, occurring since the age of 15 …"

Dr. Pearce said that there is "very little treatment for individuals with antisocial personality disorder. There is little empirical evidence suggesting that these individuals are capable of personality change, even with assiduous treatment".

Risk Assessment

On page 53 of his report, Dr. Pearce explains his findings with regard to the likelihood of Mr. Carter being a risk to re-offend. For the reasons stated below, he found that Mr. Carter is in a high risk category for violent recidivism.

He states that "Scientific research has consistently shown that actuarial methods of risk assessment are the most accurate … Among the best actuarial methods of risk assessment are the Static-99R, the Violence Risk Appraisal Guide (VRAG, to be used when the index offenses was a non-sexual violent offense) …" These two risk assessment tools "incorporate the Psychopathy Checklist-Revised (PCL-R), which in and of itself is a useful assessment tool, and is also of assistance in predicting compliance with community supervision and treatment responsiveness".

The gold standard for the measurement of psychopathy is the PCL-R. Although the PCL-R "is not a risk assessment tool per se, albeit it may be informative vis-à-vis an individual's risk of re-offense".

Dr. Pearce "scored [Mr. Carter] on the Psychopathy Checklist-Revised, Violence Risk Appraisal Guide and the HCR-20".

Psychopathy Checklist-Revised

Mr. Carter scored 32 out of a possible 40 points. This score "places him at the 91st percentile with respect to a reference sample of North American male incarcerates". Dr. Pearce states that "a score of 32 is sufficient for a diagnosis of psychopathy (generally considered to be a score of 30 or higher on the PCL-R) and this imparts a negative prognosis" (my emphasis). Dr. Pearce indicates that "this instrument has an error margin of 3 points in either direction". Therefore, Mr. Carter could be one point away from scoring as a sociopath, or three points deeper into the diagnosis.

Dr. Pearce testified that Mr. Carter is very impulsive, which can have serious consequences.

According to Dr. Pearce, Mr. Carter's score means that he "meets criteria for a diagnosis of sociopathy". He said that there is no specific definition for "sociopathy" but, importantly, his opinion is that:

it's widely recognize[d] … in the forensic psychiatry field that this is a sub group of patients with antisocial personality disorder, about a quarter of them, and they are the most hard – hard to treat. They reoffend the most. They breach terms the quickest. They're most likely to follow (sic) out of treatment and they commit most of the violent offences of the group. And so the score at 32 alone was not a risk assessment per se it does suggest a negative prognosis and I think it's borne – that scores (sic) borne out by his very early history of behavioural problems and ongoing behavioural problems to date. Well, at least until the index offences.

Violence Risk Appraisal Guide

Dr. Pearce scored Mr. Carter on the VRAG to determine his "potential for violent re-offence". The VRAG has "been shown in dozens of studies to … predict violence within a moderate degree of certainty". This tool does not enable him to determine the degree of severity of the violent behaviour. It could be from a minor assault to murder.

Mr. Carter registered a "high score [which is] suggestive of a high risk of violent re-offence. Mr. Carter's score places him in the 96th percentile.

Similarly scoring individuals recidivated violently at a rate of 82% over ten years of opportunity in the community". Dr. Pearce added the caveat that this percentage is drawn from data that is 20 years old. Since violent crimes have decreased during this time, 82% is "probably a bit of an overestimate". He figured that the updated figure was perhaps 10% less.

I note that ten years would be the length of a long term supervision order.

HCR-20

On page 54 of his report, Dr. Pearce informs that the HCR-20 "is a 20-item structured professional judgment (SPJ) risk assessment tool generally employed to assess the risk of future violent behaviour in criminal and psychiatric populations". This tool "includes variables which capture relevant past, present, and future considerations, some of which are … (… variables that are thought to be modifiable)".

Dr. Pearce found that Mr. Carter "scored 33 out of a possible 40 points, assuming, as the VRAG does, a near immediate release from custody without conditions. This is a high score and is suggestive of a high risk of future violent behaviour, absent significant interventions".

I would mention here that Dr. Pearce's diagnosis is that Mr. Carter has a "treatment resistant poly substance use disorder". What is more is that the evidence shows that Mr. Carter has repeatedly resisted the treatment resources offered to him.

The HCR-20 has "been shown on dozens of occasions to … be helpful in predicting future of a risk for violence".

Clinical Judgment

With regard to "the probability of future violence, risk assessment also involves speaking to imminence, frequency and severity of re-offense". Dr. Pearce said that "In these domains, we are left with clinical judgment alone thus it is helpful to consider that individual's history of violence".

Concerning this, Dr. Pearce states:

In examining Mr. Carter's pattern of violent offending, I note that he was first aggressive in his early adolescence or even before that time. He has often been violent, both as a youth and as an adult towards strangers, peers, his partner and police officers. While he managed to avoid offending violently for up to six years, between 2007 and 2013, it may be that he is becoming more severely violent with time as certain 2013 to 2017 assaults were more serious. Thus this gentleman may offend frequently and severely.

Dr. Pearce testified that this part of his report "should probably be given less weight because it's just my clinical opinion as opposed to using a structured proven tool like the VRAG or SCR-20". Dr. Pearce is humble, but I note that his opinion is consistent with Mr. Carter's criminal history as reflected in his criminal record and in the charges before the court. I find that these circumstances give significant weight to Dr. Pearce's clinical opinion, which it might not otherwise have.

Defence Criticisms of Risk Assessment

The defence attacked the tests that Dr. Pearce used to determine the level of risk that Mr. Carter presents to the community. The defence made valid criticisms of the tests, but they are the same shortcomings that Dr. Pearce identified and took into consideration in his evaluation of Mr. Carter. Dr. Pearce's final conclusions take into consideration all of the weaknesses of the tests and of his clinical judgment.

Dr. Pearce is a very experienced forensic psychiatrist. I qualified him on consent as an expert in this field. There is no expert evidence, nor any other evidence that undermines his conclusions about Mr. Carter's potential risk to the community and about his treatability.

The tests are not perfect, but there is no requirement that they be perfect. They are accepted by the scientific community as sufficiently valid that they can be trusted to produce results that can be reasonably relied on to be accurate.

In addition, I note that Dr. Pearce augmented his assessment and predictions of Mr. Carter's behaviour by considering his whole life history and behaviour. Thus, he did not rely solely on Mr. Carter's test results in forming his conclusions.

Dr. Pearce's Conclusion

Dr. Pearce testified that "in looking at Mr. Carter's pattern of violent offending … We see that he's been aggressive since a very early age. That's borne out by his criminal convictions but also just numerous records that speak to his prior history of violence from a … Young age".

Dr. Pearce said that it is noteworthy that Mr. Carter's violence has been directed to a wide range of persons, such as security officers, strangers, and his girlfriend. Dr. Pearce observed that Mr. Carter's history shows that his violence has been unpredictable at times. For example, with regard to the index offence for which he appears before the Court at present.

As a result, "it's hard to risk manage that. It's hard to put in plan a place (sic) to prevent that because there is a large number of potential victims, taking into account that his violence was also often fuelled by substance use as well …"

With regard to the gap in Mr. Carter's criminal record between 2007 and 2013, Dr. Pearce said that this could suggest that Mr. Carter has some potential to be nonviolent "for at least a few years". However, his medical records indicate that, although he was not convicted of a criminal offence during this time, he was involved in knife fights during this period.

The defence submitted that this gap shows "at least in part, that Mr. Carter can control himself, even absent the counselling that he desperately needs". That may have been so during the gap in his record. However, since 2014 Mr. Carter has engaged in a steadily escalating stream of violent offences. This is the Mr. Carter that stands before the court now.

Dr. Pearce said that, "overall, … I'm concerned about how severe his offenses have been. How often he's offended violently. The age at which they started and so I think there's a lot of reason to be concerned about his future risk going forward."

He said that it is "very concerning" that between 2013 and 2017 Mr. Carter has used knives against strangers who annoy him. This was in spite of court orders that prohibited him from possessing weapons. This is all "a concern in terms of his future dangerousness …" Factors that influenced his behaviour during this period were the escalation of his unstable lifestyle, perhaps increased substance abuse and the volatile relationship with his girlfriend, which according to Mr. Carter increased his level of stress.

Dr. Pearce admits that he cannot predict definitively that Mr. Carter will reoffend. He testified that in using the above mentioned risk assessment tools, which assume that he is released without conditions, he can only moderately predict future violence. He does not have a "crystal ball". His prediction is for 10 years. The psychiatric community is not "not good predicting beyond a decade".

But he concludes that "taking into account the aforenoted actuarial and clinical risk assessment in addition to this gentleman's PCL-R score, it can be concluded that Mr. Carter is in a high risk category for violent recidivism". He estimated that if Mr. Carter were released without any treatment and he resumed using the substances to which he is addicted he would reoffend within months to a couple of years.

I acknowledge that Dr. Pearce's opinion is based on Mr. Carter being released into the community without treatment and that he resumes abusing drugs. However, the evidence shows that Mr. Carter has a long history of refusing treatment. He is not interested in treatment because he does not think that he needs it. He self-medicates. He has a treatment-resistant polysubstance abuse disorder. Given these factors, I find that the conditions of no treatment and continued use of drugs that are assumed in Dr. Pearce risk assessment are realistic and likely outcomes if Mr. Carter were released into the community after a period of incarceration. This strengthens Dr. Pearce's risk assessment.

Diagnosis and Prognosis

Substance Abuse Disorder

With regard to Mr. Carter's substance abuse disorder "these disorders are treatment resistant and … they have a high relapse rate". Mr. Carter has "participated in limited treatment programming but he has consistently returned to substance use".

Dr. Pearce disclosed that:

At the time of the interview, [Mr. Carter] was willing to consider more robust programming albeit he wasn't sure he required same. He was somewhat ambivalent vis-à-vis anti-alcohol medication and MMT [Methadone Maintenance Treatment]. Most importantly and despite facing a Dangerous Offender application, he admitted to ongoing institutional drug use and he spoke about wanting to return to alcohol and marijuana use when in the community. Overall, his insight was in adequately developed and there are few reasons for optimism vis-à-vis this criminogenic variable.

Personality Disorder

With regard to Mr. Carter's personality disorder, Dr. Pearce prognosticated that:

the prognosis … is guarded as treatment for personality disorders is challenging; maladaptive traits are long-standing and thus resistant to change. Mr. Carter has evidenced problematic behaviour since the age of four and while often his problems as an adult seem to be tied to some extent to substances of abuse, in my view he clearly suffers from a serious personality disorder that is risk enhancing and an independent criminogenic risk factor.

Dr. Pearce added that since Mr. Carter is young, he is "likely at least two decades away from starting to 'burnout'".

He said that "Finally, his PCL-R score of the 32 is very concerning. To this gentleman's credit, he is reasonably intelligent and he hasn't been managed more assertively and by CSC officials. Overall, however, there are few reasons for optimism in this domain". Treatment by way of medication "may have a limited effect".

Dr. Pearce explained that Mr. Carter's personality traits have been developing for decades. Consequently:

they become more ingrained often with time and an unstructured lifestyle and limited coping skills and I think that's the case here. And so we can't give someone a medication that's like a magic pill to – to fix their personality problems.

Dr. Pearce said that Mr. Carter's violent behaviour arises from impulsivity and callousness. He said that "he always had a tendency as a very young child to lash out, … on others and I think that's continued – I think that's got him what he wants at times".

Regarding the assault on Mr. Mohammed, Dr. Pearce stated that Mr. Carter was "suffering from substance intoxication at a minimum and probably some sycosis (sic) as well. Lost (sic) of contact with reality which resulted in heightened anger, impulsivity, paranoia and aggression and I think that probably contributed to the offence".

Dr. Pearce testified that Mr. Carter's substance abuse disorder and his personality disorder are "both very problematic and they've both been very prevalent over the past decade and a half at least".

Burn Out

Dr. Pearce testified that although "it's not well documented scientifically in the literature … it seems as though those with antisocial personality disorder start to burn out or reduce the potential for violence and criminal activity as they age and that becomes apparent usually in one's 40s …"

Because Mr. Carter is so young, it is unlikely that he will "burnout" of engaging in violent criminal activity even after serving a few years in jail and then being subject to supervision for 10 years.

Long-Term Supervision Order (LTSO)

Dr. Pearce opined that from "a psychiatric perspective, whether [Mr. Carter] would be suitable for a Long-Term Supervision Order (LTSO) hinges on whether he can be considered treatable and whether such treatment could be effective to the point that his risk could be managed within the community both while under supervision (and subject to an LTSO) and after expiry of such an Order".

Dr. Pearce has concerns in considering Mr. Carter for a long-term supervision order, "in terms of the community and potential violence". He stated that:

On one hand I acknowledge that he hasn't been involved with CSD, who are more assertive, more adept at managing high risk person. Have more treatment options available for people. But on the other hand there's a lengthy history of homelessness and non-compliance, repeated violence and … repeated substance use … the substance use … piece gives me a – a big concern for the Long Term Supervision Order, 'cause Mr. Carter admitted that he's using substances … in the institution, that he never thinks he can be completely sober and so … on a Long Term Supervision Order were he's given increased access to the community … and where his substance use has been so linked to violence, … that's a major concern for me … He's also still young … the younger someone is, the more risk they're going to convey to the community over the ensuing decades. … those are reasons for concern. Personality disorder added in there, a severe personality disorder, it's a problem, major concern about risk management.

Concerning Mr. Carter's strengths which "can often buffer risk and reduce risk", Dr. Pearce pointed out that "Mr. Carter hasn't had much success, vocationally and he lived a very unstable and unstructured lifestyle. Using substance (sic) … living in different places and he told me he's lazy".

With regard to the supports that Mr. Carter has in the community, his main support is his grandmother. Dr. Pearce does not think that she has a good understanding of his level of risk, his treatment needs, or his history. This led him to conclude that she would not be very helpful in terms of reducing his risk to the community. He noted that some of the offences occurred while he was living with her, or having regular contact with her.

He spoke to Mr. King with regard to the help that he could give Mr. Carter. Mr. King told him that Mr. Carter was too old for him to be formally involved with him, but since he has known him for a long time he would help out if possible, for example, if Mr. Carter reached out to him.

There is no one else in the community that could support Mr. Carter, other than professional caregivers.

Dr. Pearce summarized his view of the feasibility of a Long-Term Supervision Order by saying that:

So overall, … putting this all together … it's a guarded … prognosis and it is possible that Mr. Carter could commit to treatment, commit to abstinence, take programing and benefit from that and have a gradual release into the community, supervised by C.S.E. and then succeed in that and then continue to be non-violent and then be non-violence (sic) when that Long Term Supervision Order expires but it's hard to expect that that's going to be the case …

Dr. Pearce said that given Mr. Carter's score on the PCLR test and his history, in spite of good treatment programs, his youth, and his lack of treatment up to this point "there is some reason to think he's going to benefit from … treatment but it's hard to conclude … at the end of this period of time, whether it's 12 years or 15 years or whatever it may be, that we can reasonably expect that he's going to be free from violence".

From a very early age Mr. Carter had "a lot of resources mobilized to help him … and they weren't successful …" Mr. Carter had a lot of "adverse childhood events". He had a very difficult childhood. In contrast, Mr. Carter has not had much treatment through probation or federally mandated C.S.E. based treatment. This is in spite of having been on probation many times and having been offered treatment.

Previous Response to Treatment and Current Motivation for Treatment

Dr. Pearce addresses the factors of Mr. Carter's previous responses to treatment and his current motivation to receive treatment.

He states that "In attempting to identify those who would present as good candidates for treatment, we often look to the individual's response to previous treatment". Dr. Pearce grants that some "individuals may demonstrate a pattern of failure to benefit from treatment but decide at a later date to fully engage in treatment".

Dr. Pearce reported that Mr. Carter has:

… participated in some substance abuse treatment programming albeit that wasn't particularly helpful as at aforenoted. He has never had the benefit of more intensive and prolonged therapy, which he evidently needs. Unfortunately, he wasn't particularly motivated to take such treatment and he expressed a desire to continue using substances that could quickly escalate his risk for violence. Thus, there is little reason for optimism in this domain.

This is worrying because Mr. Carter's poly-substance addiction plays a significant part in his violent criminal behaviour. Dr. Pearce testified that "you have to try to address each … drug especially if any of the drugs can lead to violence which I think has been the case for him".

Dr. Pearce said that all four of the drugs to which Mr. Carter is addicted led to violent behaviour in varying degrees. Of all of them, Mr. Carter identified crystal meth as the most problematic. As stated above, Mr. Carter had been using crystal meth, heroin and alcohol just prior to attacking Mr. Mohammed.

Response to Previous Supervision

After considering Mr. Carter's historic response to supervision, Dr. Pearce observed that he has not been amenable to such oversight. He finds that:

Mr. Carter's supervision record is poor; he has repeatedly violated terms imposed upon him, seemingly without much thought. He has not, as noted, been managed by CS C or placed at a community correctional Centre (CCC) or a community-based residential facility (CRF), and which may be more effective in reducing his risk. However, his response to prior supervision is a negative prognostic indicator.

Employment Prospects and Supports within the Community

Dr. Pearce considered Mr. Carter's prospects for employment and his support in the community. He stated that:

it is unclear whether providing employment for individuals with Mr. Carter's cluster of difficulties reduces rates of recidivism, but it is reasonable to assume that there may be some benefit in this regard. As well, having stable relationships and supports within the community is also likely to be of some benefit to individuals such as Mr. Carter.

However, Dr. Pearce reminds the court that Mr. Carter's employment history is poor. Mr. Carter has not been interested in working. He admitted that he is lazy. Although he is reasonably intelligent and capable of working, "the prognosis for vocational success is grim".

Regarding Mr. Carter's support in the community, Dr. Pearce found that although he has some support, "it isn't clear that these supports have helped him live a more stable lifestyle or avoid substances or violence. Thus it isn't clear if there are reasons for optimism vis-à-vis his community supports".

After considering the above mentioned factors, Dr. Pearce concluded that:

there are few reasons for optimism that this gentleman will be manageable while subject to a LTSO and/or following the expiration of such an Order. While there is a possibility of eventual control of his risk I am unable to conclude, from a purely psychiatric perspective, that there is a reasonable expectation that his risk to the community will be contained after the experience of a 10 year LTSO.

Notwithstanding this conclusion, Dr. Pearce provided recommendations with regard to a treatment plan should the Court decide that a LTSO is appropriate:

Mr. Carter should access and complete a wide variety of programs during a prolonged period of incarceration, including high intensity substance abuse treatment programming, violence and domestic violence prevention programs, dialectical behaviour therapy (DBT, to target certain borderline personality traits), anger management therapy and programs to target antisocial values and attitudes. Longitudinally-based "booster" programming in most domains should continue once Mr. Carter returns to the community, to bolster the effects of institutional programs.

Urine screens should be performed on Mr. Carter at least once a week when he is released into the community. He should be prescribed anti-alcohol medication. He should also participate in MMT [Methadone Maintenance Treatment]. Any use of non-prescribed substances should result in his immediate return to custody.

Mr. Carter should initially reside at a community correctional centre and stay there for several years. In the beginning, he should only be permitted out in the community for the purpose of attending treatment programming. Should he live outside of the centre, regular visits to his residence should occur to ensure that he is abiding by any conditions placed on him. Electronic monitoring could be a worthwhile option.

Mr. Carter should be prohibited from having contact with any criminally-oriented peers outside of correctional facilities. He should stay away from any place where the primary source of revenue is through the sale of alcoholic beverages.

Mr. Carter should not possess any weapons.

Mr. Carter should seek gainful employment and/or further his education.

Mr. Carter's relationships should be monitored closely. He should be obliged to disclose potential partners to his case management team. His potential partner should be of informed about his history to help reduce the risk of Mr. Carter committing another offense. His partner should be advised to alert the authorities if Mr. Carter deviates from his treatment plan.

Mr. Carter told Dr. Pearce that he was not agreeable to important parts of the plan such as taking the anti-alcohol medication. Dr. Pearce stated that for this plan to be successful Mr. Carter would have to follow it closely. The plan gives him the best opportunity to reduce his risk of violent re-offence. But the greater the number of parts of the plan that he refuses to follow, the less effective the plan will be.

In any case, Dr. Pearce doubted that even if the plan were fully implemented it would necessarily be successful. But it "does give him a chance at that".

Corrections Canada Evidence

Ms. Gillespie, the manager of the downtown Toronto parole office, testified. She has worked in corrections for 30 years. She has experience with dangerous offenders and offenders on long-term supervision orders.

She described an elaborate assessment procedure that takes place for all prisoners. This includes risk assessments. The goal of this process is to develop a "correctional plan" that addresses the prisoner's needs.

There are three levels of programming depending on the prisoner's risk level to reoffend. However, should the offender refuse to participate, they cannot force him to do so.

Ms. Gillespie said that they have programs that address the recommendations for counselling made by Dr. Pearce, both inside of the institution as well as in the community once the person is released.

She described the process through which dangerous offenders with an indeterminate sentence, persons subject to a long term supervision order, and regular prisoners can be released into the community.

Furthermore, she described the system for monitoring such persons in the community. Curfews can be put into effect, as well as electronic monitoring.

Dr. Pearce recommended that Mr. Carter remain in a community correctional centre for several years. Ms. Gillespie said that is not unusual and it can be accommodated.

Ms. Gillespie said that urine analysis, which was recommended by Dr. Pearce, can be performed while the offender is in the community under the supervision. Offenders are tested on a random basis one to three times every 90 days. If there is an extreme high-risk case, they may double the frequency of testing, but it is usually done only three times in 90 days. The oftenness of testing is reduced "after subsequent clean periods".

With regard to alcohol consumption, there are breathalyzers in the halfway houses in which some offenders live. They are required to submit to a breathalyzer test when they return to the halfway house.

Dr. Pearce recommended that Mr. Carter receive a prescription for antabuse. Ms. Gillespie said that they have psychiatrists under contract that could prescribe this medication. However, they cannot force an offender to take medication. The only condition that the Parole Board can impose is that the offender be assessed by a psychiatrist or medical doctor and that he follow their directions.

The methadone treatment that Dr. Pearce recommends is available in the Community Correctional Centre program. It is also available to offenders that are living independently. When offenders move out of the Community Correctional Centre residence to live on their own, Corrections Canada representatives can conduct home visits to observe their environment and to meet the persons with whom they are living.

Ms. Gillespie said that it would be difficult to monitor a condition that Mr. Carter not attend any place where the primary source of revenue is from the sale of alcoholic beverages. They cannot follow the offender around to ensure compliance with such a condition.

With regard to Dr. Pearce's suggestion that it would be beneficial that Mr. Carter be prohibited from contact with criminally-oriented peers, Ms. Gillespie said that the Parole Board can impose a condition that an offender not associate with anyone he or she knows is involved in criminal activity. She said that this is a very difficult condition to monitor, but during the course of their supervision of the offender, parole officers will inquire with whom the offender is associating in order to monitor such a condition. I note that this type of monitoring depends on the offender's truthfulness.

So for example, a parole officer can check an individual's criminal record and outstanding charges. Should an offender on parole be associating with someone with outstanding charges, the parole officer can prevent them from continuing to do so. However, they allow them to associate with individuals that have criminal records.

Ms. Gillespie said that they have the power to check an offender's cell phone to see with whom he or she is communicating.

Corrections Canada makes programs available to offenders to upgrade their employment and education. This is another of Dr. Pearce's recommendations.

Indeterminate Sentences

With regard to the process that is employed if a dangerous offender on an indeterminate sentence breaches a condition of his or her release, Ms. Gillespie explained the procedure as follows.

First of all, such an offender remains "under some manner of supervision by Correctional Service of Canada for the duration of his life". If that offender breaches a condition of his or her release, or even before a breach occurs, if his or her risk is increased Corrections Canada can return them to custody on the strength of an apprehension and suspension warrant, which a parole officer is empowered to issue. Once the warrant is issued, the repeat offender parole enforcement unit apprehends the person and returns them to custody for further processing. Ms. Gillespie said "our ability to return someone into custody is immediate".

At this point various options are available. The parole officer can cancel the suspension of parole if they determined that the risk is manageable. If this is done, they return the offender to the community with perhaps some modifications to the release plan.

They can also send the offender back to federal custody and refer him to the Parole Board. If they do this they can ask the Board to cancel the suspension of parole and add additional conditions. Or they can ask the Board to revoke the offender's conditional release and send him or her back to custody in the penitentiary. The offender is assessed in order to update his or her status regarding future release into the community.

Fixed Sentences with LTSOs

In the case of a dangerous offender who served a fixed sentence and is now in the community on a long-term supervision order, if such a person breaches a condition of his or her long-term supervision order the procedure is more complicated. They have the authority to issue a warrant for the arrest of such an offender, but they can only hold them in custody for 90 days without charging them.

Within the first 30 days they investigate the situation, assess the risk to the community and look for other viable options. The options available to them are: (1) cancel the suspension warrant and return the offender to the community; (2) recommend that the police charge the offender with breaching his long-term supervision order; (3) ask the Parole Board to recommend or confirm the laying of a charge.

If the police charge the offender with breaching the long-term supervision order, until the offender is apprehended they are deemed to be unlawfully at large and the long-term supervision order goes into abeyance. As soon as the warrant is executed and the offender is back in custody, the long-term supervision order recommences.

If the court finds the offender guilty of the breach the offender serves the sentence in the penitentiary. Until the sentence is purged the long-term supervision order is suspended. The offender is then "eligible for all of the same conditional release dates as he would have been in the initial determinate sentence". This includes eligibility for the day and full parole. In addition, the offender has to be released on his or her statutory release date.

Ms. Gillespie highlighted an important difference between the person on a long-term supervision order and a dangerous offender on an indeterminate sentence. It is with regard to the options available in the case of a breach.

In the case of a dangerous offender, the Parole Board can revoke their conditional release if it is felt that the risk level has increased and that the person can no longer be managed in the community. The person is then returned to custody.

In contrast, with a person on a long-term supervision order, since it is not a custodial sentence, there is no mechanism to revoke it and take the person back into custody beyond the 90 days mentioned above. The most that they can do is within the 90 days "come up with some sort of strategy to address that as best we can and then return them to the community".

Probation Officer Evidence

Ms. Katie Almond, a probation, parole and conditional sentence supervisor, testified regarding Mr. Carter's performance on probation. She has been a probation officer for 29 years. She works at the Riverdale office in Toronto. She has a caseload of 65 clients, which is above the average of 50 in their office. The frequency with which they see clients depends on their risk level. The most common for her was to see clients once a week if they were high risk. Their policy is to see clients no less than twice a month.

Mr. Carter was put on probation five times between May 2014 and December 2016. She supervised him between November 2014 and October 2016. She also had contact with him in 2017.

Ms. Almond said that the probation office puts their clients into risk categories. Her evidence was somewhat confusing, but I understood it to be that Mr. Carter was categorized as being very high risk. Mr. Carter was very close to being put in the "intensive stream", which I take it is the highest of all of the risk categories.

During the time that she supervised Mr. Carter, he reported to her 17 times, and he failed to report 17 times. Five of these failures were due to his being in jail. She said:

… the pattern was he would not report, and then he would come in, and then he wouldn't, and then he would, and then I would – I would be – indicate in my notes that I was considering enforcement and then he would go into custody. And then he would come out, and then I would make some efforts to get him in, … And then he wouldn't come in, so it was – it was a – it was a – there literally is a pattern when I look through the case notes of – of that kind of activity.

She referred to the pattern as a "revolving door".

Ms. Almond recalled that Mr. Carter had multiple challenges. Her main focus with him was his substance abuse. He was homeless so it was very difficult to get him into treatment programs. He was "couch surfing" during the time that she supervised him.

In her opinion he required a residential treatment program, but he was not "enthusiastic about that idea". He said that the maximum amount of time that he would go to residential treatment would be 21 or 28 days.

Ms. Almond's opinion was that he required a longer period of residential treatment "because of his high rate of relapse and the sort of chaos that occurred when he was using".

He never completed a residential treatment program. He went to a program at "Renascent House" but they kicked him out for breaking the rules.

In the end, Mr. Carter did not follow through with Ms. Almond's recommendations regarding counselling for his drug abuse. She did not have him charged with breach of probation because he would have wound up in jail and then he would not have been able to access treatment resources. She still had hope that she would be able to get him into a treatment facility.

She also never had him charged with breaching his probation by using drugs. She said that probation officers leave those types of charges to the police to lay. She did not report his use to the police because "That's not our common practice to – most of our clients come in quite frankly, impaired. I would be spending all day long calling the police about my clients if that were the case so – so, I mean, inevitably what happens is – is if they're using a lot, in my experience they are – the police encounter them on the street and it ends up being a breach or –or further charges".

On several occasions Mr. Carter reported to her while he was under the influence of drugs.

Mr. Carter's motivation to engage in treatment for his substance abuse was very low. He was not motivated to abstain from using drugs. At most, regarding this issue, they had a "couple of productive conversations, but not many".

The one time that Mr. Carter showed an interest in addressing his substance abuse was when his girlfriend got pregnant. But that did not last long. Ms. Almond testified that during an appointment on April 20, 2015 the following occurred:

They had a tumultuous relationship … s he came in with him … for one of the appointments, although she waited in the waiting room, but on one occasion he spoke fairly – sort of fairly hostile manner about her, talking about hurting her… I don't want to quote myself 'cause I'm not looking at the notes, but it was a – it was an aggressive, violent kind of characterization of – of his act, and what he would like to do.

Ms. Almond checked her case notes regarding this interview. The note that she made about this appointment said this:

He indicated that he missed her, that she was in custody as well and he how he needed, "a silver mind and a hollow heart", that she:

"Fucked everyone when I was in jail. I mean everyone. I just want to fucking slice her up and then kick her body, but when I got out, I couldn't."

Mr. Carter admitted that he was under the influence of alcohol and crystal meth during this appointment.

Ms. Almond said that although Mr. Carter's probation orders required that he attend PAR/domestic violence counselling, due to his unstable condition he was not "group appropriate".

With regard to anger management, he saw a psychiatrist once, but he did not want to see the doctor again.

Ms. Almond was able to build "somewhat of a rapport" with Mr. Carter. But it was difficult because he had a very chaotic life. Any continuity between them was continually interrupted by periods of incarceration.

In trying to help Mr. Carter, Ms. Almond worked with Mr. Tim King, a counsellor at Covenant House. Mr. King has worked with Mr. Carter since Mr. Carter was 16 years old. Mr. Carter told Ms. Almond that Mr. King was the most supportive person he had in his life. Ms. Almond said that Mr. Carter "felt very strongly about the support that Tim had provided …"

She and Mr. King worked hard to get Mr. Carter access to community-based resources that would "meet him where he is, sort of on the street" because Mr. Carter could not sit in a group setting for counselling. It was impossible for him. In the end, Mr. Carter "was not capable of sticking to anything".

Once, Ms. Almond tried to arrange a "twice a week pre-treatment program" at CAMH for Mr. Carter to address his anger and substance abuse issues, but he was not interested.

Regarding the issue of his use of knives, Ms. Almond said that during the above mentioned meeting on April 20, 2015, Mr. Carter was quite upset because he had hidden his favourite knife somewhere because he had to go to court and he knew that he would not be able to get through the security scanner. When he returned to retrieve the knife it was gone. He said that he loved that knife and that he usually carried it hidden under his belt buckle.

On many occasions when Mr. Carter reported to Ms. Almond he was too much under the influence of intoxicants to be able to have a meaningful conversation with her. When he was "less impaired" he exhibited insight. She would speak to him about his life experiences. He would discuss them with her, but only to a point. Most of the time he did not want to talk about it.

Ms. Almond testified that there was nothing more that could be done on supervised probation, mainly because he was homeless, which made access to services and helping him very difficult.

Legal Analysis

Procedure for Determining the Application – The Statutory Scheme

The court "shall find the offender to be a dangerous offender" if the Crown establishes the requirements under s. 753 of the Criminal Code beyond a reasonable doubt.

In the case at bar, the Crown made its application after it filed an assessment report under s. 752.1(2) as prescribed in s. 753(1).

For Mr. Carter's case, the relevant parts of s. 753 are:

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, …

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

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

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

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

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

In R. v. Boutilier, the court held that procedure for determining a dangerous offender application is a two-stage process: The first stage is the "designation stage" in which the court decides whether to make a finding that the offender is a "dangerous offender".

The second stage is the "penalty stage", which involves the sentencing of the "dangerous offender" if the court finds that the offender is a "dangerous offender".

The Boutilier court pointed out that "dangerous offender proceedings are sentencing proceedings". Therefore, in a dangerous offender proceeding, the judge "must apply the sentencing principles and mandatory guidelines in ss. 718 to 718.2".

The Designation Stage

The "designation stage" is contained in subsections 753(1)(a)(i), (ii), (iii), (b). As indicated above, in Mr. Carter's case, the relevant portion of the section is contained in s. 753(1)(a)(i): "pattern of repetitive behaviour".

The Penalty Stage

The second stage of the procedure is the "penalty stage". This is described in subsections 753(4) and (4.1), which relate to the sentencing of the dangerous offender once the court designates the offender as a "dangerous offender".

Analysis Regarding the Designation Stage

In Boutilier, the court stated that "Section 753(1) contemplates two categories of dangerousness: (a) dangerousness resulting from violent behaviour (as in Mr. Boutilier's case), and (b) dangerousness ensuing from sexual behaviour".

Mr. Carter's case is one of dangerousness resulting from violent behaviour.

Regarding the onus, "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".

The Crown "must demonstrate two elements to obtain a designation of dangerousness resulting from violent behaviour".

The Objective Criterion

First, "the offence for which the offender has been convicted must be a 'serious personal injury offence': S. 753(1)(a)". Section 752 contains a list of serious personal injury offences. The judge does not have any discretion in this regard.

In the case at bar, this criterion is satisfied beyond a reasonable doubt because I convicted Mr. Carter of aggravated assault under s. 268 Criminal Code. Section 268(2) states that "Every one who commits an aggravated assault is guilty of an indictable offence and liable to imprisonment for a maximum of fourteen years.

Mr. Carter's offence qualifies as a "serious personal injury offence" pursuant to the definition of this term in s. 752(a): "an indictable offence, other than high reason, treason, first degree murder or second degree murder, involving (i) the use … of violence against another person … and for which the offender may be sentenced to imprisonment for ten years or more …"

The Subjective Criterion

Boutilier held that in addition to the objective criterion, "[The] offender must represent 'a threat to the life, safety or physical or mental well-being of other persons". In order to determine whether the Crown demonstrated this element, the judge must evaluate the threat posed by the offender on the basis of evidence establishing one of the following three violent patterns of conduct listed in s. 753(1)(a)(i), (ii), (iii).

The "violent pattern of conduct" that the Crown relies on in the case at bar is:

(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,

In paragraph 20, Boutilier held that "If a sentencing judge is satisfied that the statutory criteria have been met, the designation must follow".

The Four-Part Test from R. v. Lyons

In Boutilier, the court relied on R. v. Lyons where Justice La Forest described four parts of the subjective criteria:

(1) the offender has been convicted of, and has to be sentenced for, a "serious personal injury offence";

(2) this predicate offence is part of a broader pattern of violence;

(3) there is a high likelihood of harmful recidivism;

(4) the violent conduct is intractable.

Items 2-4 are "part of the assessment of the 'threat' posed by the offender". Items 3, 4 are "future-orientated".

Justice La Forest explained that the Crown must establish that "the pattern of conduct is very likely to continue and to result in the kind of suffering against which the section seeks to protect, namely, conduct endangering the life, safety or physical well-being of others …" (emphasis in the original)

In addition, the court must be satisfied by the evidence that "the offender poses a high likelihood of harmful recidivism and that his or her conduct is intractable". La Forest J. defined intractable conduct as "behaviour that the offender is unable to surmount".

Intractability and Treatment

The defence argued that I cannot find that Mr. Carter is intractable because he has never been exposed to whatever treatment is available in the penitentiary. In addition, he has never followed up past attempts at treatment as would occur on a determinate sentence with a long term supervision order.

I find that the defence argument with regard to the treatment to which Mr. Carter would be exposed in the penitentiary is speculative concerning how Mr. Carter would react to that opportunity. Therefore, it is speculative concerning whether he would be rendered less dangerous to society by the treatment.

I do not think that Mr. Carter has to be exposed to, and reject every possible treatment opportunity before the court can find him to be intractable. Mr. Carter has a long history of not meaningfully participating in treatment and counselling that has been offered to him. I find that it is reasonable to assume that it is likely that he will carry this attitude into prison.

Moreover, the evidence demonstrates that is was not so much the quality or abundance of the treatment that he has been offered in the past that prevented Mr. Carter from participating in it. Rather, it was his recalcitrant attitude towards the treatment. There is no evidence that his attitude has changed, or is likely to change. I find that strong influences in his life have steered him into a life of dangerous crime. Now, it is at the point that he is unable to surmount his dangerous behaviour.

The defence submitted that Mr. Carter is "… perfectly willing to engage with therapists, with doctors, and so on". I find that the evidence shows the opposite.

Unfortunately, given his attitude to treatment, I think that it is reasonable to surmise that any participation on his behalf in any treatment within the penitentiary would be akin to fertile seeds falling on unfertile ground. The authorities will expose him to the treatment, but it will not bear fruit.

I find that the same holds for any treatment and counselling to which he would exposed and required to follow on a long term supervision order.

In R. v. Simon the Ontario Court of Appeal stated:

Nothing in the language Parliament used in the dangerous offender provisions suggests that failed or refused treatment is a precondition to a dangerous offender designation. The trial judge thoroughly canvassed the evidence relevant to the appellant's treatment prospects. He was alive to the fact that the appellant had not undergone a previous treatment regime aimed at the problems identified by Drs. Woodside and Federoff. He noted the absence of prior treatment (para. 244) when summarizing Dr. Woodside's evidence to the effect that the appellant posed a substantial risk to the safety of the community that could not be controlled within the community. Like the trial judge, I see the absence of prior treatment efforts as relevant to, but in no way determinative of, the assessment that the trial judge had to make.

Moral Culpability

The defence argued that "Mr. Carter's reduced moral blameworthiness caused by his crippling substance abuse disorder and his tragic background also militate against the declaration of Mr. Carter as a dangerous offender".

The defence cites paragraph 63 of Boutilier in support to this argument. There, the court stated that an offender's moral culpability is "part of the sentencing process under the dangerous offender scheme. It is 'relevant to deciding whether or not a lesser sentence would sufficiently protect the public'".

I have considered Mr. Carter's moral blameworthiness. But I note that Boutilier pointed out in paragraph 102 that "s. 753(1) does not exclusively catch highly dangerous and morally blameworthy offenders".

Furthermore, in paragraphs 112 and 113, the court held:

s. 753(4.1) prevents sentencing judges from imposing appropriate sentences on dangerous offenders in some cases. This provision imposes indeterminate detention on some offenders for whom this sentence is unfit in light of all the sentencing principles and the public protection objective of the scheme. This is because s. 753(4.1) mandates indeterminate detention even where it is disproportionate to the offender's degree of responsibility and the gravity of the predicate offence. … no judicial discretion is available to preclude such a sentence.

While proportionality -- the fundamental principle of sentencing -- obviously governs under s. 753(4), it is not reflected in the s. 753(4.1) public safety threshold. Section 753(4.1) is imperative -- if there is not a reasonable expectation that the public will be adequately protected against the commission of another serious personal injury offence, indeterminate detention must be imposed, even if this sentence is disproportionate to the gravity of the predicate offence and the offender's degree of responsibility. Like mandatory minimum sentencing provisions, s. 753(4.1) overrides the fundamental principle of sentencing. It "function[s] as a blunt instrument that may deprive courts of the ability to tailor proportionate sentences" (see Nur, at para. 44).

I interpret this to mean that the dangerousness that an offender poses to the community does not have to carry a significant load of moral blameworthiness. The issue is the degree of dangerousness to the community, not the degree of the offender's moral blameworthiness.

This makes sense because even if an offender's moral blameworthiness is low, if he or she meets the level of risk envisioned by s. 753 of the Criminal Code, it would be a great disservice to the public to release the offender into the community hoping against strong evidence of likely future dangerousness that he or she might change into a safe citizen.

Systemic Injustice

The defence referred to s. 718.2 of the Criminal Code and pointed out that Mr. Carter is a member of a marginalized group in our society whose members are incarcerated at a higher rate than others. I have considered this section in making my determinations in this application. The Crown did not take issue with me taking "judicial notice of historical and systemic injustices to African-Canadians". For all of the reasons given above and below, it does not change the findings that I have made with regard to the Crown's application.

Findings on the Subjective Criterion

Based on all of the evidence, I find that the Crown has established the subjective criterion beyond a reasonable doubt on the basis of "a pattern of repetitive behaviour by [Mr. Carter], of which the offence for which he … 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".

The evidence shows that since 2005 Mr. Carter has engaged in a repetitive pattern of violent behaviour that includes assault simpliciters, assaults with weapons, aggravated assaults, threats to cause bodily harm and death, possession of weapons, and damaging property. This behavioural pattern culminated in his most violent assault in which he almost amputated Mr. Mohammed's hand with a meat cleaver.

These actions over the last 14 years demonstrate clearly that Mr. Carter has failed "to restrain his … behaviour" and that there is "a likelihood of [him] 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". I note here again that had Mr. Mohammed not raised up his hand to protect his head, Mr. Carter could have easily been facing a charge of homicide.

I find that the evidence proves beyond a reasonable doubt that in addition to establishing the repetitive violent repetitive behaviour required by the Criminal Code, it proves beyond a reasonable doubt that there Mr. Carter presents 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".

In spite of the many rehabilitative resources that have been made available to Mr. Carter to help him to curb his violent behaviour, he has shown over the years that he is unable or unwilling to take advantage of them. Out of all of the persons that have tried to help him, none has more than a weak hope that he might avail himself of these resources and change his behaviour in the future.

As a result of his failure to restrain his criminal activity in the past, he has committed offences that caused injury, and likely inflicted severe physical and psychological damage on his victims. The evidence demonstrates that his lack of restraint in the past will likely continue in the future, with similar consequences for the victims. There is no evidence to support an opposite outcome.

Dr. Pearce's diagnosis is bleak. He found that "it is clear that [Mr. Carter] suffers from a very serious, treatment resistant polysubstance use disorder" (my emphasis). This is an unequivocal diagnosis. There is a high relapse rate for persons that suffer this disorder. Mr. Carter is an example of this. Dr. Pearce found that he "participated in limited treatment programming but he has consistently returned to substance use".

In addition to this, Dr. Pearce found that Mr. Carter has a serious personality disorder. Moreover, the chance that Mr. Carter will be able to successfully cope with it is remote. The doctor asserted that:

the prognosis … is guarded as treatment for personality disorders is challenging; maladaptive traits are long-standing and thus resistant to change. Mr. Carter has evidenced problematic behaviour since the age of four and while often his problems as an adult seem to be tied to some extent to substances of abuse, in my view he clearly suffers from a serious personality disorder that is risk enhancing and an independent criminogenic risk factor.

Although the defence tried valiantly to present a viable hope for Mr. Carter's rehabilitation he could not surmount the mountain of evidence that renders these arguments unrealistic.

I find that the Crown proved beyond a reasonable doubt that Mr. Carter is "a threat to the life, safety or physical or mental well-being of other persons" based on "a pattern of repetitive behaviour" as stated in s. 753(1)(a)(i).

The evidence proves beyond a reasonable doubt that "the pattern of conduct is very likely to continue and to result in the kind of suffering against which the section seeks to protect, namely, conduct endangering the life, safety or physical well-being of others …"

The Crown established beyond a reasonable doubt all four of the criteria set out in Lyons. I convicted Mr. Carter of a "serious personal injury offence". This offence forms part of his broader pattern of violence. There is a high likelihood of recidivism, and Mr. Carter's violent conduct is intractable. The evidence explains clearly why Mr. Carter has been ''unable to surmount'' his violent behaviour, and why this inability will continue in the future.

Disposition Regarding the Designation Stage

The Crown having established beyond a reasonable doubt the statutory criteria set out in s. 753(1)(a)(i) and that Mr. Carter is a dangerous offender, I find Mr. Carter to be a dangerous offender.

The Sentence

In ss. 753(4) and (4.1) the Criminal Code states that:

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

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

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

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

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

Boutilier held that dangerous offender proceedings are sentencing proceedings. Therefore, the court must apply the sentencing principles and mandatory guidelines in ss. 718 to 718.2.

In paragraph 70, the court held that Justice Tuck-Jackson aptly explained the proper framework for sentencing a dangerous offender.

First, the court must consider whether "a conventional sentence, which may include a period of probation, if available in law, will adequately protect the public against the commission of murder or a serious personal injury offence". If so, the court must impose such a sentence.

If not, the court must "determine whether it is satisfied that a conventional sentence of a minimum of 2 years of imprisonment, followed by a long-term supervision order for a period that does not exceed 10 years, will adequately protect the public against the commission by the offender of murder or a serious personal injury offence". If so, it must impose such a sentence.

If not, "the court must proceed to the third step and impose a detention in a penitentiary for an indeterminate period of time".

Disposition Regarding Sentence

I find that the evidence proves beyond a reasonable doubt that neither a conventional sentence with probation, nor a conventional sentence of a minimum of 2 years of imprisonment, followed by a long-term supervision order for a period that does not exceed 10 years, would "adequately protect the public against the commission of murder or a serious personal injury offence". The evidence proves beyond a reasonable doubt that the risk that Mr. Carter poses to the community cannot be managed in the community.

The reason for this conclusion is that the evidence shows clearly that since early childhood Mr. Carter has had serious personality disorders that have caused, and still cause him to act violently towards others. The prognosis for improvement for these illnesses is bleak.

In addition, the evidence shows that later in life, but still at a young age, Mr. Carter started to develop a poly-substance abuse disorder that now dominates him and is resistant to treatment.

The evidence shows that Mr. Carter has never shown a genuine desire to engage in meaningful rehabilitation programs. He thinks that he does not need them. He is committed to a lifestyle in which he treats himself by consuming concoctions of drugs that he devises himself.

Mr. Carter regularly disobeys court orders designed to steer him towards rehabilitation. He abuses drugs in the community and while in jail.

The defence steadfastly argued that Mr. Carter is not beyond being treatable and supervised in jail and in the community to the degree required to safeguard the public, for example, on a long term supervision order.

However, I find that despite the defence's strong efforts, the evidence is overwhelming that Mr. Carter is intractable and incorrigible. There is no realistic hope or expectation that he will address his personality problems, or his drug addictions, in a meaningful way that protects the public no matter what the court orders him to do.

This makes him a serious danger to the public now and in the future. These are the reasons for which I conclude that detention in a penitentiary for an indeterminate period of time is the appropriate disposition.

Justice J.W. Bovard

Released: April 30, 2019