Court Information

Ontario Court of Justice

Date: September 26, 2019

Central West Region Brampton, Ontario

Parties

Between:

Her Majesty the Queen

-and-

Jayson Clow

Judicial Officer

Before: Duncan J.

Counsel:

• K Slate, for the Crown
• No counsel for the defendant
• E Brown, amicus curiae

Heard: March 18, 2019

Reasons for Judgment

Introduction and Procedural History

[1] On November 29, 2018, the defendant entered pleas of guilty before me to one count of robbery and one count of failure to comply with probation, offence dates February 13, 2017. An agreed statement of facts was presented and the defendant through counsel and personally admitted those facts as being correct. Findings of guilt were made at that time.

[2] The Crown has applied to have the defendant declared a dangerous offender and to be sentenced to indeterminate detention. A hearing has been held. These are my reasons for decision with respect to that application.

[3] While the defendant was represented by counsel at the time of his guilty plea, he had no lawyer at the DO hearing. The lawyer acting at the time of the plea in September was fired by the defendant.[1] The defendant wanted to act on his own but was persuaded to try another lawyer. This lawyer came on the brief in December but was soon fired by the defendant after doing very little or nothing. The defendant insisted on representing himself despite the Court's urging that he not do so. He confirmed this position on several subsequent appearances. As a result, the Court appointed amicus.

[4] At the start of the hearing on March 18, 2019[2] the defendant confirmed that he wanted to act for himself. He went to some effort to show that he found the proceedings to be a bore and a waste of time. He was not interested in taking notes. He lay down on the bench in the prisoner's box as if to sleep though he would occasionally pipe up with some comment. He loudly farted on a couple of occasions.

[5] The defendant's comments were invariably against his own interests. He said several times that he completely agreed that he was a dangerous offender and that he should receive an indeterminate sentence. He made several other comments to the effect that he had no interest in treatment and he just wanted to keep taking drugs. When given his opportunity to cross-examine the main Crown witness, Dr. Woodside, he asked only one question, apparently designed to sink his own ship.

Q: Am I a danger to society? Yes or No?

A: Yes

[6] I was prepared to ignore all of the defendant's comments coming from the prisoner's dock because they were not evidence given from the witness stand. Besides, it was not possible to tell if they truly represented the defendant's attitude or if he was just showing off. This became a non-issue when the defendant later took the stand and repeated the same type of comments, as discussed below.[3]

[7] However, on the second day of the hearing the defendant had a change of heart. He apologized for his behaviour and said he now realized that he should have a lawyer. Both the Crown and the Court welcomed this development and the hearing was adjourned to provide an opportunity for counsel to be retained. This would require Legal Aid approval which, given the history of the case and OLAP's policy, seemed unlikely. I let it be known that I was prepared to make a Rowbotham order if and when Legal Aid refusal was given. Amicus was enlisted to assist the defendant in dealing both with Legal Aid and in making the Rowbotham application.

[8] The case was adjourned from time to time to monitor the progress. Counsel from an experienced criminal law firm attended and said his firm had been contacted and was prepared to act for the defendant either pursuant to a legal aid certificate or a Rowbotham order. Progress was apparently being made. Unfortunately, during one of the subsequent appearances the defendant announced that he had reverted to his former position and now insisted on proceeding without counsel. Attempts to persuade him to be patient and to remind him of the gravity of the situation failed. His mind was made up.

[9] As a result, the defendant has been unrepresented at this hearing by his own choosing. I cannot force counsel on him. Crown counsel has been exceptionally fair but necessarily is adverse in interest to the defendant. The limited role now permitted for amicus pursuant to recent Supreme Court jurisprudence aggravates the situation. Amicus has very ably and diligently performed his duty, but the problem is that appointing amicus is something of a sham. It is the defendant, not the Court, who requires counsel.

[10] Accordingly, I find myself in the position of presiding over an application with the gravest potential consequences to the defendant while being uneasy about the fundamental fairness of the proceeding. Without counsel, the defendant has been severely disadvantaged in his ability to present his case and challenge the Crown's, though he has shown little interest in doing either. More significantly, given the position he has taken in his "defence", he has gone without badly needed advice and has been left unrestrained and guided by his emotions and questionable judgment to present a suicidal defence.

The Index Offence

[11] Around 1 am on February 13, 2017, the defendant entered a Tim Horton's coffee and donut shop. He briefly pretended to be a customer but then produced a large kitchen knife, went behind the counter and grabbed a female employee in a headlock, placing the knife near her throat and threatening to kill her if she did not open the till. She was unable to do so and he started pounding the buttons until it opened. He grabbed the cash in the till and continued to hold the employee as he moved to the door, still holding the knife to her throat. He then fled on foot.

[12] The police had been called by another employee in a back room and the defendant was soon arrested in the vicinity.

[13] At the time of the offence the defendant was on probation following release from a 2 year less a day jail sentence for robbery of a drug store. He had been out of custody for about 8 months.

Circumstances of the Offender

[14] At the time of the offence the defendant, born November 3, 1982, was 34 years old. He is now 36. He has a long history of criminal offences including offences of violence and robbery as both a youth and an adult. To put things in perspective, he has been in adult jail almost continuously since about 2 weeks before the terrorist attacks on September 11, 2001!

[15] The defendant was sexually abused by his father who also introduced him to drugs, sex with prostitutes and crime. The abuse was particularly horrific. The father not only sexually abused the defendant himself – he provided the defendant for the pleasure of his friends and others as repayment of drug debts owing! In conversations with the psychiatrist in this case, Dr. Woodside, the defendant identified this abuse as the thing that "really messed me up".

[16] The defendant has long since lost touch with his father. His mother and sister are still in the picture, are supportive of him and were present in court through much of the hearing often brought to tears particularly when the defendant was speaking. The defendant expresses his love for them and they for him.

[17] The defendant has never been married and has no children. He has had several relationships with women but nothing that lasted very long. One of his ex-girlfriends speaks highly of him and maintains that he would never harm anyone.

[18] The defendant is well spoken and seems bright. He left high school in grade 9 but completed his grade 12 while serving various jail sentences. He can be charming though also manipulative.

[19] The defendant has no employment record to speak of. He quit any job he had soon after starting it. He has no job skills. He testified that he doesn't like working.

[20] The defendant has had a long history of alcohol and drug abuse. He has taken treatment during periods of incarceration but has never been able to put together any extended period of abstinence. In his evidence at the hearing he acknowledged that, after an abstinence period of about a year, he resumed using drugs while in jail and in fact had done "a long line" of some substance the morning of his testimony and it was "really good".

Criminal History

[21] The defendant has a lengthy record of youth and adult convictions. The Crown has presented a copy of the criminal record and some court transcripts – mostly partial and occasionally full – with respect to some of the proceedings. Other record entries have no supporting documentation besides an occurrence report or synopsis.

[22] The Crown has presented a chart (Applicant's material "Summary Charts Tab 2) setting out the record entries, a brief summary of facts and some comments. It would appear that this chart is sourced from Dr. Woodside's report PP 32 – 51 which in turn relies heavily on police occurrence reports. All of this material is admissible under the more flexible rule relating to evidence on sentencing hearings.

[23] The weight to be given to this material is a different matter, and in the absence of a complete transcript it should not be assumed, for example, that every fact in a synopsis was alleged by the Crown and admitted by the defendant in the guilty plea proceedings. Of the five prior robbery sentencing proceedings upon which this application is substantially based, only two are supported by transcripts. Two of the five robbery sentencings (one youth, one adult) have no transcript and no reasons for sentence. This includes the 2001 proceeding and the 7 year sentence that was the foundation upon which so much of his subsequent history was built.

[24] Having noted this caution, it is also recognized that the defendant did not challenge any of the facts in these summaries either in court or in his interviews with Dr. Woodside. Whether that suggests agreement or is simply indicative of his real or feigned lack of interest in the proceedings is difficult to tell.

[25] Because the criminal history has been detailed in Dr. Woodside's report and further distilled in the Crown's chart, I will not repeat the exercise but rather provide this more limited summary focussing on the more serious offences.

Youth Record

[26] A youth record is relevant and admissible on an adult dangerous offender application. However, it should not carry the same weight as an adult conviction, having regard to the principles of diminished responsibility that anchor the YCJA: R v Campbell, 2015 MJ No 42

[27] The defendant was before the youth court on 6 occasions from age 14 to 17 (1997-2000) for various offences including robbery on two separate entries, assaults on police officers, mischief, and numerous charges of fail to comply (etc). Somewhat remarkably, he always received custodial dispositions.

[28] May 1997 – The defendant robbed a gas station with a pellet gun. Obtained $255. This was his first offence chronologically though he had two earlier dispositions for later occurring non-violent offences for which he had received custody as well.

Disposition December 19, 1997: 14 months Open Custody plus 18 months probation

Reference: Reasons and pre-sentence report – Evidentiary record Volume 1 tabs 2 and 3

[29] October 11, 1999 – Robbery, Fail to comply, Possession of drug. "Punk off" robbery – accused with others approached 4 youths and demanded money. Took their wallets and searched them. Obtained small amounts of money. No weapon used but victims struck and kicked. It was also alleged in the occurrence report that accused took one of the 4 victims to bank machine to withdraw money ($20).

Disposition May 10, 2000: 6 months OC plus 2 years probation

Reference: No transcript of plea or reasons – only occurrence report and pre-sentence report; Vol 1 tabs 4 and 5

Adult Record

[30] The details of the defendant's adult record of offences and sentences plus some notes re the resulting institutional placement, movement, breaches and re-incarcerations are as follows:

[31] August 23-24, 2001 – Robbery with real but unloaded gun x 3, point firearm, FTC disposition. The accused approached man at bank machine – produced gun – directed him to a store to make debit purchases. Next day approached man with child at bank machine demanding money and pointing gun – man successfully resisted. Accused fled and stole a bicycle from a group of youth – displayed gun to deter their chase. Accused 18 at the time of offences and a month short of 19 at time of sentence.

Sentence October 4, 2001: 6 years 9 months (in addition to credit 3 months ptc) = 7 years

Reference: No transcript of plea; No victim impact statements; No pre-sentence report; Occurrence report and reasons for sentence only: Volume 1 Tabs 6 and 7

Institutional Movement:

• October 4, 2001 – First placed in Milhaven
• February 2002 – Transferred to Collins Bay
• November 2003 – Transferred to Fernbrook – said to be doing fairly well there
• January 2005 – Still in Fernbrook – requested a voluntary transfer to Joyceville – not supported by CSC but later transferred there sometime between June and October 2005. Got into a lot of trouble in Joyceville – suspected[4] of bringing in drugs and being involved in a stabbing – reassessed as max security and transferred to Milhaven
• June 1, 2006 – Released to Keele halfway house directly from Milhaven – had a number of breaches – drinking, drugs – suspensions and then cancellations of suspensions – eventually went awol from Keele – rearrested in August after only 2 months out

[32] August 16, 2006 – Stole car and a cell phone – on drugs – Release revoked.

Sentence August 18, 2006: 3 months consecutive added to sentence – sent to Kingston Penitentiary

• May 1, 2008 – Released from KP to Keele halfway house
• July 8, 2008 – Theft of car – awol from halfway house at time – arrested at mother's – release revoked – sent back to KP – again had been out only 2 months
• August 2008 – October 2008 – At KP commits serious assault on other inmate and assaults on COs – damaged cell – caused floods – sent to SHU in Quebec
• 2009 – Transferred on federal warrant expiry to Quinte jail to await trial on aggravated assaults of August-October 2008
• In pretrial detention in Quinte jail for more than a year – no misconducts – no new sentence until September 2010

[33] August-October 2008 – Aggravated assault x2, threats, assault police – ag assault on other inmates during fights in exercise yard. Broken facial bones suffered by one victim. Also, other assaults on nurses (spitting) and assaults and threats on correctional officers.

Before these charges were dealt with, he was transferred to the SHU in Quebec and held there until warrant expiry. He was then transferred to Quinte jail to await trial on these assaults. He was at Quinte for more than a year until plea and sentence September 30, 2010.

At sentencing the defendant said that he had been told that the one victim (Banga) was out to kill him and had threatened to stab him. Clow had requested to be alone in exercise yard but the guards put him out with Banga. The other inmate (Foley) had provoked him with comments suggesting that he, Foley, would be making a move on the accused's girlfriend, presumably when he was released. With respect to the guards the accused told the sentencing court that at the time he was paranoid that the guards were conspiring to kill him and he threatened them to scare them off.

Counsel put forward a joint submission for 3 years. Court was told that after the incident the defendant was sent to the SHU where he was treated, primarily by Dr. "Fillion" (should be Hillen). His medication was adjusted and thereafter there was no problem with his behaviour including for over a year at Quinte.

Sentence September 30, 2010: 3 years concurrent in addition to credit for 539 days pretrial custody

Reference: Transcript of proceedings Vol 1 Tab 9

• Returned to Milhaven and Regional Treatment Centre (on KP grounds)
• June 2011 – At RTC – thought to be malingering to avoid return to Milhaven – see Tab 11 – transferred out of RTC

[34] October – November 2011 – Commits assaults (throw urine/blood) against jail staff.

Sentence March 6, 2012: 3 months consecutive

• Self-represented at plea – throughout proceedings maintains that he is Jesus Christ. Dr. Hillen, who was very familiar with the accused from contact at RTC testified re accused's fitness but did not address NCR – In sentencing trial Judge "wondered about the full extent of his mental capacity when he engaged in the behaviour he did."

Reference: Transcript Vol 1 tab 10

• September 2013 – At RTC again – acting up there again but no criminal charges
• December 29, 2013 – Released at Warrant expiry date (ie no supervision in the community)

[35] August 16, 17, 2014 – Commits robberies of drug stores on successive days – handed note claiming he had gun and demanded particular drugs Biphentin and Morphine. Pharmacist was quite shaken by the incident – arrested on August 18 and returned to prison – this ended his longest period out of custody since his original adult sentence in 2001 (8-9 months).

Sentence January 15, 2015: 2 years less a day (151 days ptc) plus 3 years probation

Reference: Transcript, VIS and PSR Vol 1 Tabs 11, 12, 13

• Transferred to Ottawa Hospital – extensive psych work-up and treatment until his release
• May 2016 – Released on community treatment order – under the supervision of Dr. Srinivasan who found the defendant difficult – she believed he was continuing to use drugs during this period

[36] February 12, 13, 2017 – Commits robberies of pharmacy, 7-11 and Tim Hortons (the index offence). In first two he threatened that he had a gun. Gained $130 that he used to buy crack. Charges dealt with before separate judges on separate dates.

Sentence September 8, 2017: 2 years less a day (314 days ptc) for pharmacy and 7-11 robberies

[37] November 29, 2018 – Plea to Index Offence – Knifepoint robbery of Tim Horton's February 13, 2017. Knife held to throat of female employee who was traumatized. Arrested in the vicinity shortly after the offence. His arrest ended 9 months out of custody. The defendant told Dr. Woodside that this was his "worst offence".

Reference: Transcript and VIS – Tabs 18, 19

Psychiatric Evidence

[38] The defendant was assessed by a psychiatrist, Dr. Scott Woodside who interviewed the defendant at length – for 13 hours over 4 days in May of 2018 – and reviewed voluminous material about his personal background, criminal history, institutional records and records of prior psychiatric treatment. He also referred the defendant for psychological testing. He produced a very thorough report (Volume 2) and of course testified at the hearing.

[39] Dr. Woodside concluded that in his opinion the defendant does not suffer from any major mental illness but does meet the recognized criteria for Antisocial Personality Disorder and Borderline Personality Disorder aggravated by severe Substance Abuse Disorder. (Woodside report PP61-70) The defendant's history and the results of psychological testing lead Dr. Woodside to conclude that the defendant was a well above average to very high risk for violent recidivism. He concluded that, from a psychiatric perspective, the risk assessment component of the dangerous offender definition in subparagraph (i) is "clearly met" and that the defendant's history of repeated offending is "consistent" with the indifference criterion in sub paragraph (ii). (Woodside report P70).

[40] As to whether a definite sentence with or without long term supervision would adequately protect the public, Dr. Woodside identified that this question turned on whether the defendant could be considered treatable. He noted that the defendant's personality disorders are of a type that typically do not respond well to treatment. Substance abuse disorders can be amenable to treatment but persons with concurrent personality disorders such as the defendant do not tend to benefit from substance treatment to the same extent. (Woodside P 73).

[41] Dr. Woodside regarded the defendant's self reported motivation for treatment to be merely a neutral factor since this is a common plea by those about to be sentenced and is unhelpful in predicting who will follow through with their stated intentions. In any event the defendant in his testimony at the hearing made it crystal clear that he had no intention of taking any treatment or programming when he is incarcerated (or ever).

[42] The only factor favouring some optimism that the risk of re-offending in the future will be reduced is the general decrease in violent offending that comes with age.

[43] Dr. Woodside concluded that he was "very pessimistic" that the risk posed by the defendant could be managed in the community.

The Defendant's Evidence

[44] As mentioned, the defendant chose to testify and did his best to convince the court that he was indeed a dangerous person. He said that he had decided that he wanted to receive an indeterminate sentence. He made it clear that he wanted no part in any treatment or programming and only wanted to stay in his cell separated from other inmates as much as possible.

[45] He spoke of a number of incidents where trivial incidents or disagreements sent him into a rage and he tried to kill other inmates or correctional officers – or at least wanted to. He related one occasion where he stabbed another inmate, intending to kill him over a $10 drug debt.

[46] After testifying, when he was brought back to court for the closing arguments in the afternoon session, additional security personnel had to be put in place. When court reconvened, he spent the first several minutes loudly threatening the security officers that he would kill them and throwing insults at almost everyone in the courtroom. He then settled down.

[47] In his brief closing submissions he again repeated that he was done with all the "bullshit" – that he wanted to be declared a dangerous offender and receive an indeterminate sentence.

[48] The defendant's position of course does not relieve me of the duty to make my own determinations. I consider that there is a large component of both defeatism and bravado in the defendant's evidence. He appears to get some satisfaction in presenting himself as being a rebel "I do what I wanna do: I don't follow rules" – and in projecting a thoroughly badass persona. I have taken these things into account and view his self-defeating evidence with some caution.

The Law

[49] Part XXIV of the Criminal Code sets out the substantive and procedural law with respect to Dangerous Offenders (DOs). The legislation was first enacted in 1977 and subsequently amended in 1997 and again in 2008. The 1997 amendments introduced the associated concept of Long-Term Offender. The 2008 amendments clarified the proper approach to be followed in making the determinations required on the application and clarified the role to be played by judicial discretion.

[50] Fortunately, I have the benefit of the Supreme Court of Canada judgment in R v Boutilier, 2017 SCC 64, [2017] 2 SCR 936 interpreting the provisions as most recently amended. Among other holdings, the Court re-established that the legislation calls for a two-stage approach to the determination. (para 13) The judge should first decide whether to designate the accused as a dangerous offender. If so, he should go on to determine sentence.

The Designation Stage

[51] At this point, I will deal with the sections and some principles applicable to the first stage – designation or status:

[52] Section 753(1):

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

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

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

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

(iii) …(Not applicable)

[53] At the designation or status stage, the onus is on the Crown to establish beyond a reasonable doubt that the accused falls within this section: Boutilier para 17. In particular, the Crown must establish the prerequisites in sub (a) – that the offence is a "serious personal injury offence" as defined in section 752 and that the offender represents a threat to the life, safety or physical well-being of other persons.

[54] There can be no question that the index offence meets that definition: R v Steele, 2014 SCC 61, [2014] SCJ No 61. As for the threat element, this finding can only be made on the basis of evidence establishing one of the three patterns of behaviour described in subparagraphs i, ii or iii. (para 18-19) The first task then is to determine whether the elements of either of these sub paragraphs – the "gateways" to the designation – have been established.

Subparagraph (i)

(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,

[55] A pattern of repetitive behaviour: A pattern requires that there be a number of significant similarities between each example of the pattern that is being considered: R v Dow, 1999 BCCA 177 at para 24. In this case I am satisfied that such a pattern exists – a pattern of targeting lone individuals or small retail outlets for modest gain, looking to acquire drugs or drug money. He has committed 10 such robberies in 5 or 6 clusters. In all but one as a youth he used a weapon or threat of a weapon.

[56] With respect to timing, as an adult the defendant committed robberies in 2001, 2014 and 2017 – three clusters of offences separated by 13 years and 3 years respectively. But these large gaps have minimal relevance in this case because the defendant was in custody during most of the gap periods. There is a clear pattern of reoffending in much the same way shortly after being released from custody.

[57] Likelihood of causing death or injury to other persons, or inflicting severe psychological damage…: The strongest point in the defendant's favour is that he has never caused any physical injury in any of his robberies and only carried a weapon capable of causing physical injury on the index offence. With respect to severe psychological harm, it could be argued that the two instances for which there are victim impact statements fall somewhat short of describing severe psychological harm.

[58] But the question is not what has occurred in the past but what the likelihood is of such harm occurring in the future. I accept the defendant's evidence that he would not set out to harm anyone. That may be so, but the continuation of the pattern of offending – particularly with the escalating violence, renders it highly likely, in my opinion, that he will eventually physically harm someone and that he will inevitably at least cause severe psychological harm to a victim.

[59] Accordingly, in my view, the pattern described in subparagraph (i) has been established.

Subparagraph (ii)

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

[60] In view of my conclusion above it is not necessary to deal with this alternative gateway to the designation.

Threat to the Life, Safety or Physical Well-Being of Other Persons

[61] The Court must determine if the defendant constitutes a present threat and whether he is likely to continue to be a threat in the future. This is largely the same issue as dealt with under subparagraph (i) above.

[62] Quite apart from the defendant's evidence, there is an extended criminal history, a personality profile and a psychiatric opinion indicating that, without major change, the defendant will continue to constitute a threat of violent recidivism. This is particularly so if he does not address and overcome his substance abuse issue. That issue would be difficult to surmount even with the best of intentions. There is nothing in the evidence to suggest that the defendant has such intentions or if he did, that he would maintain them.

[63] Even if much of the defendant's more strident testimony is dismissed as bravado, his evidence, to say the least, does nothing to support any contrary more optimistic view or to alter the grim prognosis.

[64] There is no alternative but to conclude that the defendant does constitute a threat as defined in the section and that he will continue to do so in the foreseeable future. On this conclusion being reached, the legislation provides no alternative but to designate the defendant a dangerous offender.

Sentence

[65] Even though the defendant has been designated as a DO, the present legislation leaves all sentencing options open. The defendant can be sentenced to a determinate sentence or to a determinate sentence combined with a long-term supervision order if I am satisfied that there is a reasonable possibility that the public will be adequately protected with such a sentence. If not the defendant should be sentenced to imprisonment for an indeterminate period. Section 753(4.1) Criminal Code

[66] Though differently worded this issue is substantially the same as that already addressed twice above. For substantially the same reasons I conclude that I can not reasonably expect that either form of determinate sentence will provide that adequate protection. Accordingly, the only option left for me is to impose an indeterminate sentence of imprisonment.

Final Comments

[67] The defendant and his family should keep in mind that this sentence is not the equivalent of permanent imprisonment or imprisonment with no chance of ever being released. The defendant is entitled to be considered for both day parole and full parole within specified times following his being taken into custody. If he has a change of attitude and applies himself to the programming offered and behaves himself while incarcerated, there is a chance that he could succeed in making parole. It is up to him.

[68] Finally, I just want to comment that I find this case incredibly sad and tragic. The defendant claims that he is hard wired for violence, rule breaking and substance abuse. I doubt that that is the case. Rather I think it more likely that his present proclivities are largely a product of the conditions, trauma and influences he was exposed to as a child. While neither he nor I are behavioural psychiatrists, I suspect there is a lot of truth to his comment to Dr. Woodside that the unspeakable abuse he suffered at the hands of his father is what "really messed me up". I accept that it happened. The detail that he provided to Doctor Woodside adds substantial credibility to his allegation.

[69] Further I can't help but comment that I think that the defendant as a youth and a young adult was dealt with rather harshly by the criminal justice system. I have already mentioned the fact that he received custodial dispositions on every occasion that he was before the youth court, even for non-violent offences, something that could not occur now under the YCJA. Most significantly, the seven year sentence for his first adult offences as an 18 year old was quite remarkable. Bad as those offences were, no one was physically harmed and there is not even any information that psychological harm was inflicted. Sending an 18 almost 19 year old into the belly of the beast for that length of time probably had the predictable result of producing the man who emerged. He may have gone in that direction anyway, but that sentence virtually guaranteed that outcome.

[70] I do not think the defendant is all bad. He has some admirable traits, particularly his honesty and his willingness to accept responsibility for his actions. As I said above, I don't think he sets out to hurt anyone when he commits his crimes (his actions and intentions in prison, an entirely different context, are a different storey). His problem is that he engages in the dangerous violent conduct anyway, putting people at risk because he gives priority to his immediate urges over the consequences to others and the penal consequences to himself. That is why he is a dangerous offender and must be sentenced to an indeterminate sentence.

September 26, 2019

B Duncan J.

K Slate for the Crown

No counsel for the defendant

E Brown amicus curiae

Footnotes

[1] Counsel was also appointed to the Bench at around the same time so the defendant would have required a new lawyer in any event.

[2] These dates had been set with original counsel. They were not affected by the firings and hirings of counsel between September and March.

[3] The question to Dr. Woodside and answer given are evidence, though they don't add anything to the opinion he already expressed in his report and evidence. They are set out here to show the defendant's self destructive approach to his defence.

[4] This is included only to explain the transfer. However the defendant admitted it unprompted in his evidence.