Court File and Parties

Court File No.: 16-12621 Date: July 17, 2020 Ontario Court of Justice

Between: Her Majesty the Queen — and — Alexander Wielgosz

Dangerous Offender Application held before: Justice Paul F. Monahan

Reasons for Decision on the Dangerous Offender Application released: July 17, 2020

Counsel:

• J. Graham, for the Crown
• N. Gregson, for the defendant

MONAHAN J.:

Introduction

[1] After a lengthy trial, I found Mr. Wielgosz guilty of two counts of aggravated assault; two counts of weapons dangerous and one count of breach of recognizance. My detailed reasons are reported at R. v. Wielgosz, 2018 ONCJ 666.

Positions of the Parties

[2] After I made findings of guilt, the Crown brought a Dangerous Offender Application. It is the Crown's position that Mr. Wielgosz should be designated a dangerous offender pursuant to s. 753 (1)(a)(i) or s. 753(1)(a)(ii) or s. 753(1)(a)(iii).

[3] It is the Crown's position that after designating Mr. Wielgosz a dangerous offender, the Court should impose a determinate sentence of 12 years followed by a 10 year long term supervision order ("LTSO"). Alternatively, it was the Crown's position that if Mr. Wielgosz was not found to be a dangerous offender that he should receive a determinate sentence of 10 years plus a 10 year LTSO.

[4] It is the defence's position that the Crown has not met its onus of proving beyond a reasonable doubt that Mr. Wielgosz is a dangerous offender. In particular, the defence recognizes that Mr. Wielgosz is mentally ill but says that his illnesses are treatable. The defence submits that Mr. Wielgosz should be sentenced to time served plus three years of probation. Alternatively, the defence submits that the Dangerous Offender Application should be dismissed and converted into a long-term offender application. The defence submits that in that context Mr. Wielgosz should receive a sentence of two years plus an LTSO of six years.

The Index Offences

[5] Mr. Wielgosz's victims of the index offences were Ms. Katica Vala and Mr. Peter Kraus. The detailed facts concerning those underlying offences are set in my reported reasons at trial. I will not review all those facts here other than to provide a relatively brief synopsis so as to give some context to my reasons on this Dangerous Offender Application.

[6] Mr. Wielgosz was born in July 1982. He was a friend with one of the children of Ms. Vala. They had been friends since they were children in middle school, and they remained in some contact as adults. In October 2016, Mr. Wielgosz apparently thought that his friend, Ms. Vala's son, had wronged him somehow. He went to Ms. Vala's house on the evening of October 10, 2016 and, in an entirely unprovoked attack after she opened her front door, he stabbed her twice with a knife, once in the head and once in the collarbone area of her upper chest. She had to grab the knife with one of her hands to stop the attack. This caused a further major wound to her hand.

[7] Mr. Kraus was a neighbour of Ms. Vala. He was putting out some garbage on October 10, 2016 when he heard Ms. Vala's screams and he came to help. He tried to stop Mr. Wielgosz. Mr. Wielgosz stabbed or slashed Mr. Kraus in the neck with the same knife he used on Ms. Vala. Mr. Wielgosz said that he was acting in self defence as concerns Mr. Kraus, but I rejected this assertion and found that he did not act in self defence vis-à-vis Mr. Kraus. Mr. Kraus needed 14 stitches to close a wound to his neck which cut nerves and muscle from his ear almost to his Adams Apple.

[8] It is clear to me that due to the actions of Mr. Wielgosz, both Ms. Vala and Mr. Kraus could have easily died. Thankfully, both survived. Both suffered significant physical and emotional injuries as reflected in their evidence at trial and in their victim impact statements.

[9] I concluded that the attack on Ms. Vala was vicious, unprovoked and premeditated. It is also clear that his attack on Mr. Kraus was also vicious and unprovoked. I further stated in my reasons at trial that I was very sympathetic to the serious injuries and trauma suffered by two entirely innocent people namely Ms. Vala and Mr. Kraus.

[10] While there were a number of issues that needed to be decided at trial, the central question revolved around whether Mr. Wielgosz had the specific intent to kill one or more of his victims Ms. Vala or Mr. Kraus and thereby committed one or more offences of attempted murder or whether he had instead committed one or more offences of aggravated assault. I concluded that while his attacks on Ms. Vala and Mr. Kraus were vicious and unprovoked, on the circumstantial evidence before me I could not say that the only reasonable inference was that Mr. Wielgosz had a specific intent to kill either of them. I said that that probably was his specific intent but that it was not proved beyond a reasonable doubt. As a result, I found him guilty of two counts of aggravated assault as concerns his attacks on Ms. Vala and Mr. Kraus. As indicated above, I also found him guilty of two counts of weapons dangerous and breach of recognizance.

[11] In my reasons at trial I observed that there was some evidence that Mr. Wielgosz may have been suffering from a mental impairment at the time of his crimes but there was no medical evidence at trial on the point.

Issues

[12] The issues on this Dangerous Offender Application may be summarized as follows. Has the Crown has established beyond a reasonable doubt that Mr. Wielgosz is a dangerous offender within the meaning of section 753 of the Code? If so, should he be sentenced to a determinate sentence for the offences for which he has been found guilty; a determinate sentence plus a LTSO; or an indeterminate sentence? If he is not a dangerous offender, what should his sentence be, and should it include a LTSO?

The Dangerous Offender Application

Introduction

[13] Subsequent to my findings of guilt at trial, I made an order under s. 752.1 of the Code, on consent, for an assessment of Mr. Wielgosz. This led to the report of Dr. Alina Iosif, a forensic psychiatrist with the Centre for Addiction and Mental Health ("CAMH"). The Crown thereafter brought a Dangerous Offender Application.

[14] On the Dangerous Offender Application, the Crown called Dr. Iosif; Ms. Karen Thompson of the Parole Board of Canada ("PBC"); Ms. Jasmin Armstrong from the Correctional Services of Canada ("CSC"); and Ms. Angelique Jodoin, the author of a presentence report ("PSR") concerning Mr. Wielgosz.

[15] The defence called no evidence on the Dangerous Offender Application.

[16] The issues outlined above arise within a somewhat complex statutory legal framework concerning dangerous offenders and long-term offenders. There are numerous cases from higher courts interpreting the statutory provisions and counsel have referred to many of them. One issue is whether is there a pattern of repetitive behaviour or aggressive behaviour meeting the requirements of either s. 753(1)(a)(i) or (ii) or whether s.753(1)(b) applies. A related consideration is the opinion of Dr. Iosif that Mr. Wielgosz suffers from schizoaffective disorder and polysubstance use disorder. That opinion is not challenged. Absent successful treatment of his mental illnesses, Dr. Iosif is of the view that Mr. Wielgosz is of a high risk to reoffend violently. This conclusion is unassailable in my view. If he is successfully treated, he would be of a "low-moderate" risk to reoffend violently. While he has had some success with treatment in the past, that success has not been consistent of sustained. Indeed, he committed the index offences while off his medication. According to Dr. Iosif and other evidence before the Court, Mr. Wielgosz lacks any real insight into his own mental illnesses.

[17] I understand and appreciate that the fact that Mr. Wielgosz is of a high risk to reoffend violently if his mental illnesses are left untreated, does not necessarily mean he is a dangerous offender. I must consider the applicable statutory legal framework and determine whether he is a dangerous offender under that framework. However, for reasons I will explain below, I have concluded that the Crown has established beyond a reasonable doubt that Mr. Wielgosz is a dangerous offender under the provisions of section 753 of the Code. I must also determine whether he should receive a determinate sentence, a determinate sentence and an LTSO or an indeterminate sentence.

[18] I set out below some of the evidence tendered on the Dangerous Offender Application.

Mr. Wielgosz's Criminal History

[19] Mr. Wielgosz is currently 38 years old. His criminal record was filed as part of the record in this case together with available transcripts and related documents associated with his criminal history. His criminal record may be summarized as follows:

(a) In September 2004, Mr. Wielgosz was convicted of impaired driving. He was given a $600 fine and a one year driving prohibition.

(b) In October 2006, Mr. Wielgosz was convicted of possession of a weapon for a dangerous purpose and breach of an undertaking for possession of the weapon. There was no transcript of the guilty finding before me but it would appear that the weapon was a metal bar. The offences took place in April 2005. He received a suspended sentence with 4 days "time served" noted and 18 months' probation.

(c) In June 2010, Mr. Wielgosz was convicted of assault with a weapon and two counts of mischief. This assault with a weapon was vis-à-vis his father and the mischief involved the destruction of some of his parents' property. He received a sentence of 85 days time served and 18 months' probation. The allegation in the police synopsis which was marked as an exhibit on the Dangerous Offender Application is that he hit his father in the head with a baseball bat twice causing his father's head to bleed and requiring staples. The transcript of the guilty plea proceedings does not include the detailed facts and there is no reference to the bat. However, the record is clear that Mr. Wielgosz admitted the offences and acknowledged in in the PSR that his actions amounted to an "emotional and violent outburst". Those words were also used by the sentencing judge also to describe Mr. Wielgosz's actions. When asked about this incident by Dr. Iosif, Mr. Wielgosz told her that his father "accidentally got hit with a bat". Mr. Wielgosz did admit to Dr. Iosif that he went on to smash the family car with the bat. The PSR which was filed on the guilty plea the content of which was admitted by Mr. Wielgosz says that Mr. Wielgosz admitted the offence and that "his emotional and violent outbursts are a major concern as is the safety of his family and the public at large, given his political views". The PSR also refers to Mr. Wielgosz's support of Hitler. Community supervision was not recommended for him in the PSR because of a concern regarding the safety of his family and the public at large. The PSR author indicated that "should the offender be assessed by a psychiatrist and have a care of plan in place, his chances of being successful in completing a period of community supervision in the future may increase". As concerns this incident and the allegations in the police report that he was mentally ill and emotionally disturbed, Mr. Wielgosz told the Dr. Iosif that the allegation in this regard was "very insulting" and that "there was never any proof" of his schizophrenia-the Crown Attorney and the police just said it. To summarize, although there is no clear admission on the record of the fact that a bat was used, it is clear that Mr. Wielgosz assaulted his father with a weapon; the act was emotional and violent; it left the PSR author with a concern for Mr. Wielgosz's family and for the public and the Court which dealt with it imposed a not insignificant sentence of 85 days and 18 months' probation.

(d) Also in June 2010, Mr. Wielgosz was convicted of assault. The assault occurred when Mr. Wielgosz was in custody at Maplehurst Correctional Institution in connection with the assault with a weapon on his father. He punched another inmate in the head at least once with a closed fist. The assault was unprovoked. He received 15 days in custody.

(e) In October 2011, Mr. Wielgosz was convicted of uttering threats. He received a sentence of time served (10 days presentence custody) plus one year's probation. Mr. Wielgosz came home (where he was living with his parents) with a bottle of vodka and went down to the basement. Several hours later he started to scream. He came upstairs and got into a dispute with his father and his mother. In the course of that dispute he broke a broom handle and knocked a plant off the table. He repeatedly said to his mother "I'm going to kill you". In speaking to police, his mother advised that she believed he was capable of carrying out the threat.

(f) In November 2012, Mr. Wielgosz was again convicted of assault. He received a received five days pre-sentence custody and 6 months' probation. The facts were that Mr. Wielgosz went to the front door of the home of a person he did not know. Mr. Wielgosz had in the past used a racial slur towards the victim's friends. When the victim opened the door, Mr. Wielgosz punched him in the nose and the victim bled profusely.

(g) In May 2014, Mr. Wielgosz entered into an 810 peace bond to stay away from a woman who was delivering newspapers who Mr. Wielgosz had tried to grab in February 2014.

(h) In September 2016, Mr. Wielgosz was found guilty of assault with a weapon. He was sentenced to 30 days custody and 12 months' probation. The facts were that in July 2016, Mr. Wielgosz went to his mother's room and he held a machete close to his mother's face and said "are you scared now?".

(i) Also in September 2016, Mr. Wielgosz was convicted of assault and sentenced to 111 days custody. The underlying offence occurred in July 2016 while Mr. Wielgosz was in custody in the Brampton Courthouse. At that time he spat in the face of a prison escort officer.

(j) The index offences occurred on October 10, 2016.

(k) On November 2017, Mr. Wielgosz was found guilty of assault and sentenced to 45 days custody. The offence occurred after the index offenses. On October 21, 2016, while Mr. Wielgosz was in custody on the index offences, Mr. Wielgosz threw feces at a prison guard when the guard was seeking to provide a food tray to Mr. Wielgosz. The feces landed on the guard's clothes and skin.

A Chronology of Mr. Wielgosz's History Including His Education and Psychiatric History

[20] Mr. Wielgosz graduated from high school and attended York University. At some point, Mr. Wielgosz obtained a diploma from the Ontario College of Trades and he has worked with his father in construction.

[21] He is a self-proclaimed racist who has a large tattoo of the face of Hitler on his chest. He showed this tattoo to Dr. Iosif.

[22] He dropped out of school in his second year of university in 2003 when he was 21 years old. At that time, he had engaged in a serious self-harm incident which involved cutting his wrists with an X-Acto knife. He required 60 staples to close the wounds. Mr. Wielgosz stated that he stopped cutting himself after that incident but instead only burned himself with cigarettes "on the spur the moment, to see how I would react to pain". Mr. Wielgosz's mother described the circumstances leading up to the self-harm incident by saying that Mr. Wielgosz had been isolating in the basement, not eating and not sleeping. He had removed the pot lights and covered the windows. His university performance was plummeting, and he had been using substances and was "under stress".

[23] There is some evidence that he saw a psychiatrist a couple of times after the 2003 incident but then he discontinued seeing that doctor. He also took medication after the 2003 incident but discontinued it as it made him feel drowsy (see the PSR done in 2010 which includes the foregoing account).

[24] Mr. Wielgosz's probation records formed part of the record. The records indicate that in May 2008 he had complied with all conditions of associated with an 18 month probation order which arose from the October 2006 conviction for weapons dangerous.

[25] In May 2011 he completed an anger management program offered by Elizabeth Fry as part of the probation order.

[26] He was on probation again in 2012. The records indicate that in February 2012 he initially refused the request of his probation officer to see a psychiatrist. When he did see a psychiatrist in February 2012, the psychiatrist described him as "angry, uncooperative and agitated". His mother reported that he had been acting "strangely at home… talks about mafia and police constantly watching them". He had not slept for days and would "burst into vicious laughter". The records indicate that his "attitude drastically deteriorated over the last month" and that his mother was concerned for her safety.

[27] In February 2012, police brought Mr. Wielgosz to the emergency room at Credit Valley Hospital. Dr. Srinivasan (a psychiatrist) who was seeing him during probation placed him on a Form 1 under the Mental Health Act, R.S.O. 1990, c. M.7. The psychiatrist had concerns that he was a danger to others and himself in the psychiatrist sought a psychiatric assessment. Mr Wielgosz indicated that he did not have a history of mental health issues. The assessors ultimately concluded there were no grounds for certification and discharged him.

[28] As of October 23, 2012, the probation records indicate that "for the most part he did well on probation". The records indicate that he was initially resistant to seeing Dr. Srinivasan but ultimately did do so and took medication as prescribed.

[29] In March 2013, Mr. Wielgosz was a patient at Trillium Health Centre for almost 30 days where he was the subject of a psychiatric assessment. He was again subject to a Form 1 under the Mental Health Act signed by a physician such that he would be subject to a psychiatric assessment and that was extended by a Form 4 (and presumably before that a Form 3) under the same legislation. Again, there was a concern by the doctors that he was a danger to others and himself.

[30] The Trillium records show that Mr. Wielgosz was an involuntary patient and the Mental Health Act. Further, a physician found that he was unable to consent to treatment and his father acted as a substitute decision-maker and consented to treatment on his behalf. The records indicate that Mr. Wielgosz's mother was in Poland at the time.

[31] While he was at Trillium undergoing psychiatric assessment for approximately 30 days, the medical records indicate that Mr. Wielgosz had violent outbursts and it is alleged that he had assaulted one or more medical staff during his stay at Trillium. In fact, Mr. Wielgosz admitted to Dr. Iosif that he had punched a security guard in the face.

[32] He was ultimately discharged from Trillium after about 30 days. The discharge plan resulting from his 2013 Trillium stay was to have Mr. Wielgosz's parents supervise his taking of medication. His parents were not happy about the fact that the medical professionals were not prepared to schedule any follow-up appointments with Mr. Wielgosz because of his assaultive behaviour. Regardless of the precise scope of Mr. Wielgosz's misconduct while at Trillium, it is clear that his violent conduct caused the hospital to have safety concerns. As a result, the medical professionals who dealt with him at that time were not prepared to make any clinical referral for follow up.

[33] The probation records confirm an absence from the criminal justice system from about June 2013 to June 2016.

[34] It would appear that Mr. Wielgosz took medications under his mother's supervision for two years (2013 to around 2015). His mother told Dr. Iosif that he did well during this time and was much more manageable. However, Mr. Wielgosz complained of side effects from the medication and with his mother's support Mr. Wielgosz discontinued taking his medication around 2015.

[35] By 2016 Mr. Wielgosz was again actively mentally ill and was incurring criminal charges again. Mr. Wielgosz was again brought to Trillium hospital on or about April 27, 2016. Police brought him there after a verbal exchange with his mother. He was subject to another Form 1 under the Mental Health Act signed by a physician and requiring a psychiatric assessment. This documentation indicates that he had behaved violently towards another person and caused that other person to fear bodily harm. The medical records show that he was "hearing voices" and was reported to have been carrying a large knife. Mr. Wielgosz was said to be "not cooperative" and "extremely aggressive". He was discharged from hospital with medications on April 29, 2016. He was offered follow-up outpatient psychiatric services but apparently stated that he was not interested.

[36] In July 2016 Mr. Wielgosz was seen in the emergency department at Trillium. He was brought to the emergency department by police because he had apparently not been taking medication.

[37] It was in July 2016 when he assaulted his mother with a weapon by holding a machete to his mother's face and said, "are you scared now?". When he was held in jail pending trial on this charge, he committed a further assault by spitting in the face of a prison escort officer.

[38] In September 2016, Mr. Wielgosz received a sentence of 111 days for spitting in the face of the prison escort officer; and he received 30 days and 12 months' probation for the assault with a weapon on his mother. Mr. Wielgosz failed to report to probation on October 5, 2016 as he was required to do. The index offences followed shortly thereafter October 10, 2016.

[39] Mr. Wielgosz has been incarcerated on the index offences since October 10, 2016. Dr. Iosif indicates that when he is in jail, he takes medication "off and on". This is consistent with the institutional records marked as an exhibit on the Dangerous Offender Application. Those records indicate that he was held in segregation from at least November 2018 to May 2019 and that he was, according to the records, "encouraged to take medication by all clinicians and staff, he refuses, also cursing and racial slurs to officers."

[40] After he was incarcerated on the index offences, Mr. Wielgosz committed an assault on a guard by throwing feces at him. He was convicted of this offence in November 2017.

Dr. Iosif's Opinion

[41] Dr. Iosif met Mr. Wielgosz on two occasions in January 2019 for approximately nine hours. He was scheduled to attend a further appointment with her, but he refused to participate any further. Dr. Iosif also interviewed Mr. Wielgosz's mother and reviewed medical records and his criminal history and other documents in evidence on the Dangerous Offender Application.

[42] According to Dr. Iosif, Mr. Wielgosz gave his permission to have Dr. Iosif speak to his mother, but he refused to give permission to allow Dr. Iosif to speak to his father. Accordingly, the only family member of Mr. Wielgosz to be interviewed by Dr. Iosif was his mother.

[43] Dr. Iosif indicates that it is her view that Mr. Wielgosz's mother is unsure if Mr. Wielgosz suffers from a mental illness and that his symptoms thus far might have been related to "trying to release energy" and that he was "more sensitive and more intelligent than other people". She believes that his misconduct is related to his use of illicit substances.

[44] Dr. Iosif is of the opinion that Mr. Wielgosz suffers from schizoaffective disorder and polysubstance use disorder. She also indicated that antisocial personality traits appear to be present but deferred that diagnosis due to the presence and poor control of symptoms of major mental illness. The defence did not and does not challenge Dr. Iosif's opinion concerning Mr. Wielgosz's mental health issues.

[45] Dr. Iosif indicates that "schizoaffective disorder is characterized by an uninterrupted period of illness during which, at some time, there is either a major depressive episode, a manic episode, or a mixed episode concurrent with symptoms of schizophrenia. During the same period of illness there have been delusions or hallucinations for at least two weeks in the absence of prominent mood symptoms. Symptoms that meet criteria for a mood episode are present for a substantial portion of the total duration of the active and residual periods of the illness. The disturbance is not due to the direct physiological effects of a substance or a general medical condition."

[46] Dr. Iosif indicates that as concerns polysubstance use disorder it "consists of a maladaptive pattern of substance use leading to impairment or distress in a variety of psychosocial roles, despite knowledge of having a persistent or recurrent physical or psychological problem, or legal difficulties, likely caused or exacerbated by the substance." Dr. Iosif explained that polysubstance use disorder is a psychiatric diagnosis based on the DSM-5. In plain language she said that Mr. Wielgosz had "addiction issues".

[47] She said that Mr. Wielgosz "amply meets the diagnostic criteria for polysubstance use disorder". She noted that Mr. Wielgosz said he was only using alcohol prior to the index offences but his mother noted that he was consuming various substances in large quantities over time. Dr. Iosif noted that Mr. Wielgosz's history of drug use is not well documented in the file and that his self-report is unlikely to be fully reliable. She noted that he has never received any treatment for addiction issues.

[48] Dr. Iosif observed that when she saw him in 2019, he was "remarkably delusional". She indicates that his thinking lacked logic and that he had no ability to reflect on his behaviour and its impact on others. He expressed the view that Ms. Vala, one of the victims of the index offences, could have "very easily" self-inflicted her extensive injuries by using OxyContin for pain control.

[49] She also noted that Mr. Wielgosz "clearly did not want to be seen as mentally ill". Dr. Iosif indicated that "his insight and judgment into his mental illness and behaviour, appeared severely impacted."

[50] Dr. Iosif's report includes a report of some testing done by Dr. P. Wright. I am aware of his findings, but I will not review them in detail here. I do note that Dr. Wright indicated that Mr. Wielgosz exhibited odd beliefs and delusions.

[51] Dr. Iosif administered to Mr. Wielgosz the violence risk appraisal guide (VRAG) assessment and the psychopathy checklist-revised (PCL-R) assessment.

[52] The VRAG assessment indicated that Mr. Wielgosz had a 24 to 48% chance of committing a violent act within 10 years. This was said to be a low-moderate probability of violent recidivism. The PCL-R assessment placed him on the 14th percentile with respect to the development sample of male offenders. This was said to be predictive of a low-moderate risk of future general and violent recidivism and a fair response to supervision and rehabilitation efforts.

[53] The VRAG and PCL-R tests indicate that his future risk of violent recidivism is at the low end of moderate. However, significantly, Dr. Iosif pointed out that these actuarial scores do not take into account or consider the presence of mental illness.

[54] Dr. Iosif also considered "dynamic factors" but indicated that scientific research on these factors was only just beginning. Mr. Wielgosz's score on the HCR-20 was 29 suggesting a high likelihood of recidivism. His score on the SAPROF was 12, which shows few protective factors.

[55] Dr. Iosif stated that looking at the clinical and actuarial factors overall and by way of summary, Mr. Wielgosz risk for recidivism was "low moderate, but increasing to high if not taking psychiatric treatment and actively using substances or alcohol". In her oral evidence, Dr. Iosif said that if Mr. Wielgosz remains untreated for his mental illnesses, his response to supervision will be extremely poor and that his risk for violent recidivism is high.

[56] Dr. Iosif did not express the view that Mr. Wielgosz was or was not a dangerous offender or a long-term offender. As indicated, she did observe that Mr. Wielgosz, when he is actively mentally ill, untreated and using substances, "presents a substantial risk of re-offence". She sought to analyze the possibility of "eventual risk control". She indicated that the question of risk control turned on a consideration of a number of factors including diagnoses; motivation to change; previous response to treatment; and previous response to supervision; and future prospects regarding employment and supports in the community.

[57] Dr. Iosif testified further that while his illnesses are "at least theoretically treatable", Mr. Wielgosz was not "motivated to change". She said that his past response to treatment was "relatively good from what we know, it seemed to work" but that his previous response to supervision was poor. She noted that his future prospects of employment were good as he was a skilled tradesman and had worked with his father in the past. She expressed the view that "overall there is the possibility of eventual risk control in my opinion" but it would be "not without effort".

[58] Dr. Iosif expressed the view that Mr. Wielgosz's parents would not be good in a supervisory role but having them there for him is a positive thing in terms of a support.

[59] Dr. Iosif testified that if Mr. Wielgosz is left untreated it is a "medical certainty" that Mr. Wielgosz would either remain psychotic or become psychotic. She testified that his psychosis "seems to have been largely the engine if you will, of his criminal history so far".

[60] In Dr. Iosif's view she saw many barriers to treatment for Mr. Wielgosz. In effect, she testified that if the question of treatment was left up to Mr. Wielgosz, it would not work. She was of the view that he would have to be treated as an "incapable individual" and that a substitute decision-maker would have to give consent to injectable medications. She said further that Mr. Wielgosz "has to be obviously willing to participate in the program for instance". She testified further that the substitute decision-maker route does not always work because it requires enforcement which does not always happen in community settings.

[61] Dr. Iosif testified that treating his mental illness and his substance abuse would render Mr. Wielgosz "much, much less likely to recidivate" and "perhaps" all but eliminate the risks". However, to be clear, she was making an assumption that he would be successfully treated.

[62] Dr. Iosif testified that Mr. Wielgosz would fare poorly on the standard probation terms such as "counselling as directed".

[63] Dr. Iosif stated in her oral testimony that "I'm trying to wrap my head around how one would go about providing psychiatric care to someone like Mr. Wielgosz in an outpatient setting, because essentially that's what we're looking at, unless he is actually admitted to a hospital, and that's not an easy answer, unless something really changes for Mr. Wielgosz internally, that he is willing to accept psychiatric-psychiatric help, or that, you know, the Court can put in place some conditions that he has to, or else. So that's kind of the scenario I've been looking at, but yes, the more structure, the more conditions, the more clear it is what he is expected to do, and what the consequences of not doing what he is expected to do would be, I think, would-work better as a release plan than something more open".

[64] She expressed the view in her oral evidence that applying the "paradigm of the dangerous offender legislation to Mr. Wielgosz's case" was "not very easy" and that the dangerous offender designation was "meant more for people who are intrinsically antisocial, criminally driven, perhaps sexually deviant.". She said that Mr. Wielgosz's aggression and indifference to consequences and disinhibited behaviour "actually flow from major mental illness" and that the "underlying problem is very different than what the legislation is trying to address, namely the anti-sociality, the psychopathic, the lack of behavioural control that flows from a purely criminal disposition".

[65] While it was not part of her report, towards the end of her oral evidence in chief and again in cross, Dr. Iosif went so far as to express the opinion that Mr. Wielgosz was not criminally responsible ("NCR") for the index offences. As a result, at the request of the Crown and not opposed by the defence, I made an order under s. 672.12(3)(b) that Mr. Wielgosz be subject to an NCR assessment. That assessment was done by Dr. William Komer of the Waypoint Centre for Mental Health Care. Dr. Komer expressed his opinion in a written report dated November 6, 2019 that Mr. Wielgosz did not have an NCR defence to the index offences. Dr. Komer was not called to testify by either the Crown or the defence. The parties asked that his report be marked only for identification which was done.

Angelique Jodoin

[66] Ms. Jodoin testified on the Dangerous Offender application. She is the author of the presentence report ("PSR") which was prepared and filed on consent in 2018. She had some direct dealings Mr. Wielgosz as his probation officer when he was on parole in 2012. Mr. Wielgosz apparently had made racial slurs against his previous probation officer and Ms. Jodoin took over. The PSR provides somewhat similar information to that disclosed in Dr. Iosif's report. Mr. Wielgosz's mother spoke to the Ms. Jodoin and indicated that her son was an "obvious racist because of his tattoos" but that she believes he is "less racist" now than he was a few years ago. She did indicate to the PSR author that Mr. Wielgosz has "some mental illness" but that his exact diagnosis has never been confirmed. She stated that she first started noticing changes in his behaviour in high school when he started using marijuana on a regular basis.

[67] Mr. Wielgosz told Ms. Jodoin that he had been essentially "drug-free" for approximately 15 years and that he only drank alcohol on occasion. His mother indicated that "the subject does not have control over his alcohol use" and that she could recall incidents where he would drink alcohol and take painkillers and became almost unconscious. She said that Mr. Wielgosz was "always under the influence of alcohol when he would commit crimes".

[68] As concerns the index offences, Mr. Wielgosz told Ms. Jodoin that he did not agree with the outcome of the trial and that there was "no forensic evidence and the wounds were inconsistent with stories". He expressed no remorse, nor did he accept any responsibility for his actions.

[69] He denied having any mental health diagnosis but admitted to taking medication to treat "anxiety and depression". He said he would comply with any Court ordered conditions for counselling/treatment.

[70] Ms. Jodoin indicated that Mr. Wielgosz had committed criminal offenses while previously bound by probation orders. She said he was sentenced on September 9, 2016 to probation for 12 months following a period of incarceration and that he had failed to report to probation as required. This was confirmed by the probation documents.

The PBC and CSC Evidence

[71] Ms. Karen Thomson of the PBC and Ms. Jasmin Armstrong of CSC testified on the Dangerous Offender Application. There was some overlap between their evidence. They both explained how dangerous offenders and long-term offenders are treated within the federal corrections system. Part of their testimony was in writing and part of it was given orally. I will briefly touch on some of the points they made.

[72] A person with a determinate sentence, whether they are dangerous offender or not, will have the ability to apply for the various types of conditional or statutory release. That is to say they may seek day parole, full parole, and statutory release.

[73] A dangerous offender serving a determinate sentence followed by a LTSO can be detained to the warrant expiry date but then must be released on an LTSO. The PBC has the exclusive authority to impose special conditions for an offender's release on an LTSO.

[74] A dangerous offender with an indeterminate sentence will have the PBC consider the condition, history and circumstances of that person in order to determine whether parole should be granted and, if so, determine what special conditions are reasonable and necessary to manage the risk that the offender might present our release. A dangerous offender serving an indeterminate sentence may only be released pursuant to a conditional release. There is no statutory release or warrant expiry date for a dangerous offender with an indeterminate sentence.

[75] A dangerous offender with an indeterminate sentence who has been granted a conditional release will be supervised by CSC for the rest of their life. The conditions of release may be changed throughout the offender's life. If a dangerous offender serving an indeterminate sentence is released and is suspected or known to have breached conditions of his or her release or it is necessary to prevent a breach, then their release may be suspended by the CSC. The CSC will then have 30 days to cancel the suspension or to refer the case to the PBC with a recommendation to either cancel the suspension or revoke the release.

[76] The PBC can impose special conditions on an offender's release whether pursuant to an LTSO or other form of release. That could include conditions that the offender abstain from alcohol and/or drugs. It could also include that the offender participates in an assessment and treatment regime as recommended by a medical professional. These conditions can be monitored by urine analysis. If the CSC considers that there had been a breach of an LTSO, the offender would be apprehended. This could lead to CSC recommending that a charge be laid under s. 753.3 of the Code against the person subject to the LTSO. The Board cannot cancel an LTSO.

[77] If a person subject to an LTSO is released into the community and they are subject to a condition that they take medication, they could still have their medication monitored through urine analysis.

[78] The federal corrections system includes a 91 group session counselling program. Upon release into the community, a further maintenance program is available. However, all programming is voluntary and where the sentence is determinate, the offender will eventually be released regardless of whether they participate in any of the programs or not.

[79] A person serving a determinate sentence within the federal system who suffers from mental illness may be seen by psychiatrist and subject to treatment by them. While in custody there is no testing to make sure that they are following any medication prescribed by a doctor.

[80] A dangerous offender with an indeterminate sentence has no statutory right of release and must earn their conditional release on an unescorted temporary absence, day parole or full parole. A dangerous offender serving an indeterminate sentence is not eligible for full parole until they have served seven years from the date of arrest. After serving seven years, the offenders are entitled to a review every two years.

[81] A person on parole or subject to an LTSO can be subject to a residency condition requiring that they reside at a Community Correction Centre (CCC) or a Community Residential Facility (CRF) which are managed by nonprofit organizations. The CCC's are for higher risk cases. There are only two CCCs: one in Toronto and one in Kingston. There is a psychologist on site as well as parole officers and community employment counsellors. The CCC in Toronto has approximately 40 beds. Persons residing at a CCC meet with their parole officer on a weekly basis.

[82] The CCC has security with cameras. The security personnel are not armed. A person who is a resident at a CCC can walk away from a CCC although the security personnel may see that happen. They are located one floor up from the entrance.

[83] A residency condition is only good for 365 days, but it can be extended by the PBC provided a submission is made by the CSC to the PBC.

[84] There is a psychologist department on site at the CCC in Toronto. A psychiatrist is not present on site but once a month individuals can attend at a psychiatric clinic and meet with the psychiatrist at that time. The psychiatrist is employed by CSC. If a person does well at a CCC, they can be released to a CRF. If a person does well at a CRF, they can be released to the community.

[85] If a person is residing at a CCC and subject to a condition to take medication, the medication will be dispensed to them at the CCC. They will not have the medication in their room.

Law and Analysis

The Potential NCR Issue

[86] Before turning to the dangerous offender analysis, I wish to touch upon the potential NCR issue. As I explained in my review of the evidence above, Dr Iosif was asked to do a report pursuant to my order under section 752.1 to assist in determining whether Mr. Wielgosz was a dangerous offender or a long-term offender. She prepared that report and gave her oral evidence. While it formed no part of her written report, towards the end of her oral evidence in chief and again in cross, Dr. Iosif expressed the opinion that Mr. Wielgosz was NCR for the index offences. The Crown then sought, and the defence did not oppose, an NCR assessment order under s. 672.12(3)(b) of the Code. I made that order on August 29, 2019. The assessment was performed by Dr. William Komer of the Waypoint Centre for Mental Health Care. His report dated November 6, 2019 was provided to the Court and the parties. Dr. Komer expressed the opinion in his report that Mr. Wielgosz could not avail himself of an NCR defence for the index offences. At the request of the parties, Dr. Komer's report was marked for identification only and Dr. Komer did not testify. Neither party pursued the NCR issue further nor made any submissions regarding it. In light of the fact that neither party has sought any ruling with respect to the NCR issue, I am of the view that I should follow section 16 (2) of the Code which provides that "every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility … until the contrary is proved on a balance of probabilities". The burden of proof lies on the person that raises the issue.

Dangerous Offender and Long-Term Offender Legislative Overview

[87] For ease of reference, I have set out all of s. 753 and 753.1 of the Code in an appendix forming part of these reasons.

[88] The legislative framework for a dangerous offender application contemplates a two stage process: a designation stage and a penalty stage. In the first stage, the designation stage, the Crown must prove beyond a reasonable doubt that the offence for which the offender has been convicted is a "serious personal injury offence" under s. 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 satisfying the requirements of s. 753 (1) (a)(i),(ii) or (iii); or that their failure to control their sexual impulses means that they are likely to cause injury, pain or other evil to other persons under s. 753(1)(b). If the statutory criteria under s. 753 (1)(a) or 753(1)(b) have been met, then the Court must designate the defendant a dangerous offender. At the penalty stage, the judge, following s. 753 (4.1), must impose an indeterminate sentence unless "there is a reasonable expectation that a lesser measure under s. 753 (4) (b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence": see R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936 at paras. 17-20; R. v. Steele, 2014 SCC 61, [2014] 3 S.C.R. 138 at para. 28; and R. v. Spilman, 2018 ONCA 551, [2018] O.J. 3297 (C.A.) at para. 26.

[89] The majority in Boutilier relying on the Supreme Court's judgment in R. v. Lyons, [1987] 2 S.C.R. 309, reaffirmed that s.753(1) requires that the offender: (1) be convicted for and has to be sentenced for a "serious personal injury offence"; (2) the predicate offence must be part of a "broader pattern of violence"; (3) "there is a high likelihood of harmful recidivism"; and (4) "the violent conduct is intractable". The criteria referring to a "high likelihood of harmful recidivism" and that the "conduct is intractable" contemplates a prospective assessment of dangerousness. "Intractable" means "behaviour that the offender is unable to surmount"; see Boutilier at paras. 26-27.

[90] The dangerous offender framework permits a Court to sentence a dangerous offender who has committed a serious personal injury offence "without having to wait for the offender to strike out in a particularly egregious way": see Steele at para 41 quoting from R. v. Currie, [1997] 2 S.C.R. 260 at para 26.

[91] I have previously reviewed the law on an LTSO in R. v. Smiley, 2019 ONCJ 75 at paras. 42 to 48. If a person is designated a dangerous offender, a LTSO is an option pursuant to the provisions of s. 753 (4) (b). Alternatively, the Court hearing a dangerous offender application may find that an offender is not a dangerous offender and may treat the application as one to have the offender found to be a long-term offender pursuant to the provisions of s. 753.1 (see s. 753(5)).

[92] Section 753.1 provides, in part, that a long-term offender designation may be made where the Court is satisfied that (a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted; (b) there is a substantial risk that the offender will reoffend; and (c) there is a reasonable possibility of eventual control of the risk in the community.

Section 753(1)(a)(i) and (ii)

[93] As concerns a dangerous offender application, the pattern of repetitive behaviour under s. 753(1)(a)(i) requires "enough of the same elements of unrestrained dangerous conduct to be able to predict that the offender will likely offend in the same way in the future… [h]owever, the offences need not be the same in every detail, that would unduly restrain the application of the section": R. v. Hogg, 2011 ONCA 840 at para. 40; see also R. v. Brissard, 2017 ONCA 891 at para. 57. Similarity can be found in the types of offences but also in the degree of violence or aggression: see R. v. Szostak, 2014 ONCA 15 at para. 63.

[94] Justice Hill in R. v. Williams, 2018 ONSC 2030 at para 249-52 summarized some of the relevant case law as concerns section 753(a)(i) and (ii). In particular, he indicates that the pattern of behaviour on the offender's part refers to patterns of behaviour as opposed to offences. The evidence of a pattern need not reach a similar fact level of similarity. There can be differences in the "behavioural transactions", as long as the differences leave the key significant relevant elements of the offender's pattern in place. As concerns s. 753(i)(a)(ii), the offences do not need to be "similar in kind, but in result, in terms of the degree of violence or aggression inflicted on the victims" (see R. v. Neve, 1999 ABCA 206, [1999] A.J. No. 753 (C.A.) at para 111). Further, past offences considered to be part of pattern, do not have to be serious personal injury offences or be as serious as the index offences (see R. v. Newman, [1994] N.J. 54 (C.A.) at paras. 79-80). As to the persistence required by s. 753(1)(a)(ii), this refers to behaviour which is "enduring, continuous, obstinately persevering, interminable or sustained". The concept of "indifference" considers "notions of disregard, lack of sympathy or empathy, callousness and coldness, lack of concern or sensitivity".

[95] Future treatment prospects are relevant at both the designation and sentencing phase. "At the designation phase, treatability informs the decision on the threat posed by an offender". The offender "will not be designated as dangerous if their treatment prospects are so compelling that the sentencing judge cannot conclude beyond a reasonable doubt that they present a high likelihood of harmful recidivism or that their violent pattern is intractable" (Boutilier at para 45).

[96] At the penalty phase, treatability informs the appropriate sentence to manage the threat. "[E]ven where the treatment prospects are not compelling enough to affect the judge's conclusion on dangerousness, they will still be relevant in choosing the sentence required to adequately protect the public" (Boutilier at para 45-6).

[97] In order to achieve the goal of public protection which is central to the dangerous offender and long-term offender provisions, there must be evidence of treatability that is more than a mere expression of hope which indicates that the offender can be treated within a definite period of time: R. v. McCallum, [2005] O.J. 1178 (C.A.) at para 47.

The Role of Expert Evidence in Dangerous Offender Applications

[98] Justice Molloy in R. v. R.M., [2005] O.J. 4977 at para. 70 affirmed (2007) 2007 ONCA 872, 228 C.C.C. (3d) 148 (Ont. C.A.), summarized the role of psychiatric evidence in a dangerous offender application as follows:

[i]n determining the likelihood of risk of reoffence and the possibility of controlling that risk in the community, it is relevant for the judge to take into account the expert opinion evidence of psychiatrists: R. v. Lyons at paras. 97-100. That is not to say that the trial judge is bound to accept the opinion of one psychiatrist or the other, but rather that the expert evidence is relevant to the judge's inquiry, with determinations as to the weight and reliability of that evidence left to the judge: R. v. Currie, [1997] 2 S.C.R. 260.

(see also R. v. Robertson, [2018] O.J. 2184 (Sup. Ct.) at para 19)

Application and Analysis – The Designation Question

Introduction

[99] As I have indicated in the introduction section above, I am of the view that Mr. Wielgosz is a dangerous offender. Let me may explain why. There is no dispute that the aggravated assaults that Mr. Wielgosz committed against Ms. Vala and Mr. Kraus meet the definition of a "serious personal injury offence". Proof that an offence is a "serious personal injury offence" is not a particularly high bar to meet. It requires only proof of the use or attempted use of violence against another person in connection with an indictable offence for which the offender may be sentenced to imprisonment for 10 years or more. The index offences in this case clearly meet that definition.

[100] It is clear to me that Mr. Wielgosz is a dangerous offender pursuant to s. 753(1)(a)(ii). He may also be a dangerous offender pursuant to s.753(1)(a)(i) and/or (iii) but it is not necessary for me to decide those questions.

[101] In my view, Mr. Wielgosz constitutes a threat to the life, safety or physical or mental well-being of others. I rely on my own assessment of the evidence on this application including the evidence of Dr. Iosif that if Mr. Wielgosz's mental illness is left untreated and he is actively using substances, he is at a high risk to reoffend violently. In my view, it has been established beyond a reasonable doubt that there is a high likelihood of future significant and harmful violence by Mr. Wielgosz. This will occur in my view because it has also been established that he will fail to consistently seek and follow psychiatric treatment.

[102] As concerns 753(1)(a)(ii) in particular, in my view, Mr. Wielgosz has engaged in a pattern of persistent aggressive behaviour of which the index offences form a part, showing a substantial degree of indifference on his part respecting the reasonably foreseeable consequences to others of his behaviour. If one looks in particular at his criminal offences for which he has been convicted, this pattern of persistent aggressive behaviour can be identified. In particular, the pattern is evident from, among other events, his criminal convictions including for his assault with a weapon on his father in 2010; the assaults against strangers in March 2010 and November 2012; the repeated threat to kill his mother in October 2011; the use of a machete to again commit the offence of assault with weapon vis-à-vis his mother in July 2016 when he held a machete close to her face and said "are you scared now" and the index offences attacking Ms. Vala and Mr. Kraus with a knife which could have easily ended with the death of both of them. All of these crimes have significant similarities and follow a pattern of persistent aggressive behaviour. In each case, Mr. Wielgosz violently attacked those around him without any provocation and he did so in an aggressive manner. He was entirely indifferent to the consequences to others. He was experiencing mental illness at the time with Dr. Iosif having identified that he has been living with mental illness since at least 2003.

[103] I understand and appreciate that prior to the index offences, Mr. Wielgosz did not inflict the kinds of injuries on his victims that he inflicted on Ms. Vala and Mr. Kraus. However, this does not mean that his past actions were not aggressive or violent or that they were not part of pattern of persistent aggressive behaviour.

[104] As indicated above, treatability is relevant at the designation phase and at the sentencing phase if the designation is imposed. At the designation phase, treatability relates to the threat posed by the offender. If the treatment prospects are compelling such that the sentencing judge cannot find beyond a reasonable doubt that there is a high likelihood of harmful recidivism or that the violent pattern is intractable then the dangerous offender designation will not be imposed. At the penalty phase, treatability relates to the appropriate sentence.

[105] In my view, while Mr. Wielgosz's illnesses are potentially treatable, his treatment prospects are not at all compelling. In order to establish that Mr. Wielgosz is a dangerous offender, the Crown must prove beyond a reasonable doubt that his violent conduct is "intractable". Intractable refers to "behaviour that the offender is unable to surmount". In my view, the intractable requirement is established here. The reason Mr. Wielgosz is unable to surmount or overcome his violent tendencies follows from the fact that he will not consistently seek and follow psychiatric treatment.

[106] The record contains a number of examples of Mr. Wielgosz's past failures to consistently seek and follow psychiatric treatment. For example, the record indicates that he saw a psychiatrist after the 2003 cutting incident "a couple of times and then discontinued". In addition, at this same time in 2003 "he was prescribed medication for a period of time which he also discontinued as it made him feel drowsy" (see the PSR associated with the 2010 assault with a weapon on his father which refers to these 2003 events).

[107] In February 2012, Mr. Wielgosz initially refused his probation officer's request to see a psychiatrist. When he did see a psychiatrist, the doctor noted that he was "angry, uncooperative and agitated". His mother noted that he was acting "strangely at home… talks about mafia and police constantly watching them" and that his mother was apparently concerned for her safety.

[108] Also in February 2012, police brought Mr. Wielgosz to the emergency room at Credit Valley Hospital. He was subject to a Form 1 application under the Mental Health Act, R.S.O. 1990, c. M.7. This occurs where, among other circumstances, a physician is of the opinion that a person is suffering from a mental disorder which will likely result in serious bodily harm to the person or another person and the physician seeks a psychiatric assessment. He was not certified at this time.

[109] By October 2012, the records indicate that he was taking medication and doing well. However, this situation did not last. He was hospitalized in March 2013 after allegedly threatening his mother's friend. Medical professionals signed documentation under the Mental Health Act indicating that they were of the view that he was suffering from a mental disorder that would likely result in serious bodily harm to another person. He was made an involuntary patient for approximately 30 days. The medical records indicate that at least one medical professional said that he had a "fairly high risk of reoffending violently" and that the "likelihood of him complying with treatment was low" and injectable medication was recommended. It appears that he took medication after this time from approximately 2013 to 2015 but then discontinued it with the support of his mother who indicated to Dr. Iosif that it was "not good to put chemicals in his body every day forever". It is common ground in this case that he committed the index offences while he was not talking his medications.

[110] The additional significant problem with respect to treatment is that Mr. Wielgosz lacks insight with respect to his illnesses, he is resistant to treatment and is not motivated to change. According to Dr. Iosif, Mr. Wielgosz would "do well to be motivated to change, that we don't really have… there is very little information that he has any drive in that regard". She also said that "his motivation to change and his response to treatment are at best questionable". Dr. Iosif stated further that Mr. Wielgosz "also seems invested in avoiding treatment".

[111] Dr. Iosif stated in her written report and in her oral evidence that "because of his lack of insight, Mr. Wielgosz is unlikely to accept psychiatric treatment voluntarily. He is unlikely to be capable to consent to treatment, based on his lack of understanding of his illness and the consequences of remaining untreated. A substitute decision-maker and injectable medication to manage the likelihood of non-compliance are both recommended. Insight training and programming to promote symptom recognition and the importance of treatment are recommended."

[112] The evidence filed on the Dangerous Offender Application demonstrates to me that Mr. Wielgosz's lack of insight and failure to pursue a consistent course of treatment has continued. It is the defence's submission that Mr. Wielgosz has done well while incarcerated on the index offences at least in the last 18 months. I disagree that that this is the way to look at Mr. Wielgosz's most recent incarceration.

[113] I note that in July 2016, Mr. Wielgosz committed a criminal offence of assault in custody just prior to the index offences and then committed a further assault in custody after the index offences in October 2016. Further, the records in evidence show that in 2018 Mr. Wielgosz was held in segregation to "protect the security of the institution or the safety of other inmates".

[114] The records also show that Mr. Wielgosz continues to believe that he does not need to regularly take medication. For example, the Solicitor General segregation records indicate that that on May 23, 2017 "the inmate explained that the medication he is on he does not want to take every day and the nurses are telling him that he has to take them". On December 10, 2018 and again on January 9, 2019 there is a note "client prefers not to take meds". On January 9, 2019 there is a further note "continues to be encouraged to take medication by all clinicians and staff, he refuses, also cursing and racial slurs to officers". On March 5, 2019 there is a note to the effect that "client stated that he personally lowered the amount of meds". There is a similar note is made on March 11, 2019.

[115] When I heard sentencing submissions in connection with the Dangerous Offender Application, Mr. Wielgosz was asked if he had anything to say. He took the time to prepare a written statement. The essence of that statement was that he was wrongfully convicted of the index offences and, similar to what he told Dr. Iosif and the PSR author in 2019, that the victim Ms. Vala was untruthful and according to him did not suffer the injuries she did as a result of his actions. As concerns Mr. Kraus, he again said that Mr. Kraus came at him with a gun and he disparaged Mr. Kraus' victim impact statement. His statements regarding Ms. Vala and Mr. Kraus are at complete odds with the evidence and the facts that I found at trial.

[116] Mr. Wielgosz does not have to accept the facts that I have found against him and if he wants to take the position that he has been wrongfully convicted, that is fine. However, the point here is that notwithstanding that Mr. Wielgosz has been incarcerated for more than 3 ½ years on the index offences, he has zero remorse concerning his actions and zero insight into his own illnesses and the need that they be treated. This is entirely consistent with the findings of Dr. Iosif. Her assessment of him when she met him in 2019 was that he was "remarkably delusional". I agree with that assessment and I make the observation that in 2020, the situation appears to be the same.

The Substitute Decision-Maker Route

[117] The evidence on the Dangerous Offender Application offers no semblance of a reliable plan or proposal that might give the Court some reasonable basis upon which to conclude that Mr. Wielgosz will consistently follow psychiatric treatment. During her oral testimony Dr. Iosif said "I'm trying to wrap my head around how one would go about providing psychiatric care to someone like Mr. Wielgosz in an outpatient setting, because essentially that's what we're looking at" (my emphasis). In her written report and her oral testimony, Dr. Iosif recommended the substitute decision-maker route be used in the future to have someone else consent to treatment on the half of Mr. Wielgosz on the assumption that Mr. Wielgosz himself would be incapable of consenting to treatment. She testified that the substitute decision-maker route does not always work because it requires enforcement, which does not always happen in community settings in particular.

[118] The defence essentially adopted Dr. Iosif's substitute decision-maker suggestion in their written argument.

[119] The prospect that Mr. Wielgosz would be successfully treated on a consistent and sustained basis through a substitute decision-maker process is highly speculative in my view and Dr. Iosif acknowledged that it may well not work. I would go further than that and say that it is highly unlikely to work on a consistent and sustained basis and I will explain why below.

[120] In order to understand whether the substitute decision-maker route will work, one needs to have regard to the Health Care Consent Act, 1996, S.O. 1996, c. 2, Schedule A (the "HCCA"). It is here that the possibility of a substitute decision-maker is provided for.

[121] Except in an emergency, a healthcare professional cannot administer any treatment to any person unless the healthcare professional is of the opinion that the person is capable with respect to the treatment and the person has given their consent. If the healthcare professional is of the opinion that the person is incapable with respect to the treatment, then a person's substitute decision-maker can give consent on their behalf (s. 10 of the HCCA).

[122] There is a hierarchy of persons who might consent to treatment on behalf of an incapable person (s. 20 of the HCCA). There is no evidence in this case that Mr. Wielgosz has given a power of attorney for personal care or that any representative has been appointed for him under the HCCA.

[123] If the substitute decision-maker question were to arise in the future, it appears that the persons most likely to be considered as a potential substitute decision-maker for him would be one of his parents. This is precisely what happened in 2013 when a medical professional was of the view that Mr. Wielgosz was not capable of consenting to treatment and Mr. Wielgosz's father stepped in to serve as a substitute decision-maker. Mr. Wielgosz's mother was in Poland at the time. I do not mean to be critical of Mr. Wielgosz's parents who I am sure are dedicated and loving parents who want to help their son. However, I note that Dr. Iosif was of the view that while they would be important supports for him, they would not be good in a supervisory role of him and I agree with that view.

[124] A person who gives consent to medical treatment on behalf of another person must consider a range of principles and factors as set out in section 21 of the HCCA including the values and beliefs of the incapable person which were expressed prior to the person becoming an incapable.

[125] Accordingly, my concern about the substitute decision-maker route as some sort of present or future solution to the treatment of Mr. Wielgosz is twofold. First, the substitute decision-maker process is subject to a lot of speculation and contingencies as to what might or might not occur in the future. A doctor would have to find Mr. Wielgosz incapable of consenting to treatment, which appears likely to me, but one never knows. A substitute decision-maker would need to be found and it appears likely to me that that would be one of Mr. Wielgosz's parents as occurred in the past. Whoever was the substitute decision-maker would have to consent to treatment on his behalf and the treatment would need to be administered on a consistent basis indefinitely.

[126] Many questions arise regarding this potential process. Would the substitute decision-maker consent to treatment? Would they consent to treatment being forced on Mr. Wielgosz if necessary? Could Mr. Wielgosz be physically forced to take treatment if necessary? The answers to these questions are speculative at best. I appreciate that persons are sometimes physically restrained and forced to take treatment in a hospital setting but that may or may not happen here.

[127] The second point is that the substitute decision-maker process was used in 2013 with respect to Mr. Wielgosz and it appears to have formed the basis for some success with respect to his treatment between 2013 and 2015 but it was not sustained. The failure to sustain that treatment may have led directly to the crimes committed against Ms. Vala and Mr. Kraus. I am not pointing blame at any one as concerns the index offences. Rather, I am observing that the very process that is proposed now as a method of treating Mr. Wielgosz and which is used to argue against the dangerous offender designation, and the sentence that might follow from such a designation has been tried and failed in the past. I recognize that there is a difference in the current situation because the Court has other potential tools namely a LTSO. However, in my view a LTSO combined with the substitute decision-maker process is not the answer. It too relies on contingencies and speculation.

[128] Let me summarize on this issue. The idea that Mr. Wielgosz's mental illness and violent conduct can be solved through the substitute decision-maker process under the HCCA combined with a LTSO is speculative and there is no reasonable basis upon which to conclude that it would work on a sustained basis. Mr. Wielgosz's treatment prospects are not compelling at all.

[129] I understand and appreciate that people who are mentally ill are not inherently dangerous nor are they to be feared. However, some people who are mentally ill, just like others who are not mentally ill, can behave violently. Mr. Wielgosz is one of those people. Further, he has no insight into his illness, and he will not cooperate with treatment.

[130] I am aware that Dr. Iosif said, in response to my question, that she did not think that Mr. Wielgosz's violent conduct was intractable because his illnesses are treatable. In my respectful view, simply because his illnesses are potentially treatable does not mean his violent conduct is not intractable. In fact, considering the evidence as a whole, I am satisfied beyond a reasonable doubt that his violent conduct is clearly intractable.

[131] In my view, Mr. Wielgosz is very dangerous and if permitted to do so, I am satisfied beyond a reasonable doubt that he will reoffend violently in a manner that will cause serious physical and emotional harm to his victims. In my view, the Crown has established beyond a reasonable doubt that Mr. Wielgosz is a dangerous offender. I say this after considering the evidence as a whole including his past criminal convictions including for the index offences, Dr. Iosif's opinion that he will recidivate violently if left untreated and my view that he will not consistently follow treatment in the future.

The Law with Respect to Dangerous Offender Sentencing

[132] Having concluded that Mr. Wielgosz is a dangerous offender, I must determine the appropriate sentence. Subsections 753 (4) and (4.1) represent a codification of the Supreme Court's decision in R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357. The Supreme Court in Boutilier at para 70 indicated that the following framework is to be followed by the sentencing judge:

The framework a sentencing judge should adopt in exercising his or her discretion under s. 753(4.1) has been aptly explained by Justice Tuck-Jackson of the Ontario Court of Justice: R v. Crowe, No. 10-10013990, March 22, 2017. First, if the court is satisfied that 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, then that sentence must be imposed. If the court is not satisfied that this is the case, then it must proceed to a second assessment and 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 the answer is "yes", then that sentence must be imposed. If the answer is "no", then the court must proceed to the third step and impose a detention in a penitentiary for an indeterminate period of time. Section 753(4.1) reflects the fact that, just as nothing less than a sentence reducing the risk to an acceptable level is required for a dangerous offender, so too is nothing more required.

[133] Section 753 (4.1) provides that "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".

[134] The Supreme Court made it clear in Boutilier that s. 753 (4.1) "does not impose an onus, rebuttable presumption, or mandatory sanctioning. Nor does it prevent a sentencing judge from considering sentencing objectives and principles. Every sentence must be imposed after an individualized assessment of all of the relevant factors and circumstances" (Boutilier at para. 71). "The sentencing judge is under an obligation to conduct a thorough inquiry that considers all of the evidence presented during the hearing in order to decide the fittest sentence for the offender. Indeed, under S. 753 (4), a long-term offender sentence remains available for dangerous offenders who can be controlled in the community in a manner that adequately protects the public from murder or a serious personal injury offence" (Boutilier at para. 76).

[135] The Court of Appeal in R. v. Spilman, 2018 ONCA 551, [2018] O.J. 3297 (C.A.) at para 30 noted that section 753 (4) "requires the judge to examine the evidence adduced at the hearing to determine whether there is a reasonable expectation that a lesser measure-conventional fixed term sentence or a fixed term sentence of at least two years followed a long-term supervision order-will adequately protect the public against the risk that the offender will commit murder or a serious personal injury offence".

[136] Justice Hill in R. v. D.B., 2015 ONSC 5900, [2015] O.J. 5138 at para 199 set out the following non-exhaustive list of factors to be considered in determining which disposition to impose under section 753(4) and (4.1):

(a) the degree to which the offender has been cooperative with the dangerous offender process;

(b) whether the offender has previously refused treatment or failed to take advantage of treatment opportunities;

(c) whether the offender has been expelled from prior treatment programs;

(d) whether the offender has previously refused to take prescribed medication or has unilaterally discontinued pharmacological treatment;

(e) whether the offender has taken treatment in the past and if so whether it ultimately failed to reduce or control the offender's risk to the public;

(f) is the offender motivated and committed to treatment?;

(g) are the realistic prospects for treating the offender's mental disorder have regard to relevant factors such as propensity and intractability;

(h) in respect of the index offences, is there a lack of insight for failure to accept responsibility, denial and minimization, lack of empathy for the victim's or absence of remorse?

(i) the circumstances of the offenders institutional behaviour including in advance of the dangerous offender hearing;

(j) what improvements or gains in risk reduction can be expected during a period of custody proceeding community release?;

(k) has past engagement with community supervision been compliant?

(l) apart from treatment considerations, other sufficiently available and resourced external controls in the community to adequately protect the public?; and

(m) As a factor independent of treatment, is there compelling, not speculative, expert evidence that the offender's proclivities will significantly decline in the future while falling within the period of a determinate sentence in the term of LTSO?

[137] The Court of Appeal in Spilman at para 21 made it clear that while the protection of the public is an enhanced sentencing objective where a person is found to be a dangerous offender, the other principles of sentencing continue to apply and must be considered in arriving at the appropriate sentence for a dangerous offender.

[138] The Parole Board of Canada can make it a term of a long-term supervision order that an offender takes drug treatment. However, the Board cannot force the offender to take treatment. However, the failure to take treatment could amount to a breach of an LTSO. The Ontario Court of Appeal in R. v. Ramgadoo, 2012 ONCA 921 summarized the position as follows at para 53:

In this context, the appellant raises the issue of whether the Parole Board can order mandatory drug treatment as a condition of a long-term supervision order and whether a sentencing judge can so assume when considering a long-term offender designation. In R. v. R.B., 2011 ONCA 328, 280 O.A.C.329, at para. 12, this court acknowledged that a Parole Board has the power to make taking medication a condition of a long-term supervision order, but on the understanding that such an order does not mean that the person would or could be physically forced to take medication. Rather, if the person does not consent to take the medication when required to do so under the terms of the order, that could then amount to a breach of the condition under s. 753.3(1) unless the person "had a reasonable excuse for refusing to take the prescribed medication" (at para. 13).

Application and Analysis - The Sentencing Question

[139] It is the position of the Crown that I should find Mr. Wielgosz to be a dangerous offender and sentence Mr. Wielgosz to a determinate sentence of 12 years less time served plus a 10 year LTSO. It is the defence's position that Mr. Wielgosz is not a dangerous offender. The defence sought variously a sentence of time served plus probation or a sentence of two years plus an LTSO of six years.

[140] In the course of the sentencing submissions on the Dangerous Offender Application, I indicated to Crown and defence counsel that one reasonable option that the Court was considering was finding Mr. Wielgosz to be a dangerous offender. I further indicated that if that were the case, I would need to follow the sentencing regime set out in s.753. I sought to make it clear that that analysis could lead to the imposition of an indeterminate sentence notwithstanding the Crown's position that I should impose a determinate sentence plus a LTSO. In that context, I asked the Crown to explain why, if I were to find Mr. Wielgosz to be a dangerous offender, should I be satisfied that the Crown's submission for the imposition of a 12 year determinate sentence plus a 10 year LTSO would adequately protect the public. It seems to me the Crown's response was essentially to rely on the opinion of Dr. Iosif as concerns the possibility of treatment for his mental illnesses. I was not directed to any specific part of her evidence that would support the proposition that the public will be adequately protected by a determinate sentence of any length plus a 10 year LTSO.

[141] I also asked the defence if they wished to make any further submissions in light of my observations that I was seriously considering finding Mr. Wielgosz to be a dangerous offender and the potential sentencing analysis that would be required with that conclusion including the possibility of an indeterminate sentence. The defence did make further written submissions. The focus was of those submissions was on the legal framework of sentencing options that needed to be considered (i.e. determinate sentence first; determinate sentence plus LTSO second and an indeterminate sentence only if a lesser sentence was not appropriate). I agree with the defence's submission as to the decision-making framework to be followed on sentencing in the event of a dangerous offender designation. The defence indicated that they relied on their earlier submissions that the lesser restrictive sentences were appropriate and that the Court should not impose an indeterminate sentence if Mr. Wielgosz was found to be a dangerous offender.

[142] In my view, the question of the appropriate sentence for Mr. Wielgosz turns at least in part on the question of whether he is going to consistently follow treatment in the future. I have already said above in the designation phase of my reasons on this application that I do not believe that Mr. Wielgosz will consistently follow treatment for his mental illnesses. I have also already explained above why I do not believe that the substitute decision-maker route in the context of an LTSO will work on a consistent basis over the long term.

[143] As I have indicated, the Crown seeks a determinate sentence of 12 years plus a 10 year LTSO. In my view, there is no reasonable basis on this record to conclude that a determinate sentence on its own or a determinate sentence plus an LTSO will adequately protect the public. The closest the evidence came to offering any hope for Mr. Wielgosz's future treatment prospects may be summarized with Dr. Iosif's evidence which I've already mentioned more than once to the following effect: "I'm trying to wrap my head around how one would go about providing psychiatric care to someone like Mr. Wielgosz in an outpatient setting, because essentially that's what we're looking at, unless he is actually admitted to a hospital, and that's not an easy answer, unless something really changes for Mr. Wielgosz internally, that he is willing to accept psychiatric-psychiatric help, or that, you know, the Court can put in place some conditions that he has to, or else. So that's that's kind of the scenario I've been looking at, but yes, the more structure, the more conditions, the more clear it is what he is expected to do, and what the consequences of not doing what he is expected to do would be, I think, would-work better as a release plan than something more open". However, as I have also said, Dr. Iosif expressed significant uncertainty about whether Mr. Wielgosz would be successful in seeking and following treatment. She saw many barriers to treatment for Mr. Wielgosz and I see those barriers as well.

[144] If Mr. Wielgosz receives a determinate sentence without an LTSO or a determinate sentence plus an LTSO, he would be under no obligation to take treatment during the period of the determinate sentence and I do not believe he will consistently follow treatment if he is given only a determinate sentence. Following the determinate sentence if there was no LTSO, he would be free to re-enter society untreated. This would pose a tremendous risk to the public.

[145] If there was a determinate sentence and a LTSO, Mr. Wielgosz would be entitled to commence the LTSO after his determinate sentence. I would expect that the PBC would make it a condition of the LTSO that he seek and follow the treatment of a psychiatrist. I also expect that the PBC would make it a condition of his LTSO that he reside at a CCC. The question is whether such treatment and residency provisions (and other provisions) in an LTSO would be sufficient to protect the public? I am not satisfied that they would be.

[146] The reality of the situation is as follows. If Mr. Wielgosz receives a determinate sentence plus an LTSO, it seems highly likely to me that he will not consistently follow treatment during the determinate sentence. There is simply no persuasive evidence in the record before me that Mr. Wielgosz will follow treatment during a determinate sentence. It seems highly likely to me that Mr. Wielgosz would live out the balance of any determinate sentence until the warrant expiry date without ever having taken treatment in any consistent manner. I say that because he did not consistently follow treatment between 2003 and 2016 when he committed the index offences. Over the last 3 ½ years since he has been incarcerated on the index offences it appears from the record before the Court that he has not consistently followed treatment. It was open to the defence to tender evidence on the Dangerous Offender Application showing that he was willing to seek treatment and/or that he had been consistently seeking treatment over the last number of years while he was incarcerated and/or that he has a substitute decision-maker and they will consent to treatment on his behalf. He chose not to tender such evidence and the record that was tendered before me indicates that he has not consistently followed treatment, a pattern which has occurred over the last 17 years.

[147] Further, I note as well that Mr. Wielgosz was not entirely cooperative with Dr. Iosif when she was conducting the dangerous offender assessment in 2019. He met with her twice and she wanted to meet with him a third time, but he refused. While this was not a refusal to take treatment, it provides some further support for my view that Mr. Wielgosz will do as he pleases in the future as concerns all things including treatment.

[148] I have also considered whether Mr. Wielgosz's violent tendencies will reduce as he ages. This is the so called "burnout" theory namely that as a person ages they become less violent. Dr. Iosif was asked whether the "burnout theory" might apply to Mr. Wielgosz. She responded that "we don't see that in all the cases" and that Mr. Wielgosz now at age 37 "we see neither a burnout in his symptoms, nor in his tendency towards violence. Will it happen in the next 10 years? It's hard to say. Again, he hasn't had any treatment. We don't know how he will respond, really, to treatment for a long term. It will remain to be seen".

[149] As I have indicated, I fully expect that the terms of the LTSO set by the PBC would include a term that he seek and follow psychiatric treatment including taking medication prescribed by a psychiatrist. If he were to fail to follow that treatment, he could be charged with a breach of an LTSO which could lead to further incarceration and a delay in the completion of the LTSO. However, this would be by no means a certainty. For example, if Mr. Wielgosz was incapable of consenting to treatment and his substitute decision-maker did not consent to treatment on his behalf then Mr. Wielgosz would not be in breach of the LTSO. He would not have refused treatment. He would have been incapable of consenting to or refusing treatment.

[150] To summarize, I have had regard to the factors identified by Justice Hill IN D.B. when determining the appropriate sentence in this case and I have touched upon them throughout these reasons. Having regard to those factors, I am not satisfied that a determinate sentence on its own or a determinate sentence of 12 years (or some other length) plus an LTSO will be sufficient to protect the public. During any such LTSO, Mr. Wielgosz would very likely be resident at a CCC. A CCC is not a jail and Mr. Wielgosz could simply walk away from it. It is possible that urine analysis might show that Wielgosz was not taking his medication, and this could lead to a charge against him but it's equally possible that it would not be detected until it was too late, and Mr. Wielgosz had committed another violent crime because he was not taking his medication. In my view, for treatment to work even in a residency situation with an LTSO requiring treatment, the offender must genuinely want to succeed and be cooperative with the treatment required by the medical professionals. The position of Mr. Wielgosz is that he does not need to follow treatment because he is not mentally ill, so he is not going to cooperate in taking treatment. Mr. Wielgosz has a long history of failing to seek and follow psychiatric treatment on a consistent basis. That failure appears to have led to the index offences. As I have discussed above, it is my view that Mr. Wielgosz will not follow psychiatric treatment in the future on a consistent and sustained basis whether he is subject to a fixed sentence on its own or a fixed sentence and a LTSO.

[151] I am not going to risk the protection of the public by speculating as to what might happen in the future when Mr. Wielgosz again refuses to take or continue treatment as he has done in the past.

[152] I have concluded that a determinate sentence on its own or a determinate sentence of 12 years (or some other length) plus an LTSO will be insufficient to protect the public. As a result, I will impose an indeterminate sentence as I am required by the statutory framework to do in these circumstances. While it is sometimes said that an indeterminate sentence for a dangerous offender is an indefinite sentence, this is in fact incorrect: see R. v. Currie at para 43; see also R. v. Sipos, 2012 ONCA 751 at para. 3 and R. v. MacArthur, [2017] O.J. 159 (Sup. Ct.) at para 115. Mr. Wielgosz will have his sentence reviewed from time to time in accordance with the law. He will have the opportunity to seek parole but only if he "earns it" which, in all the circumstances, is exactly as it should be. Further, he will be subject to supervision for the rest of his life. Notwithstanding that the sentence he is receiving is an indeterminate one, in my view, it is a fit sentence. I say that in light of his designation as a dangerous offender, his conduct in committing the aggravated assaults on Ms. Vala and Mr. Kraus, and the need for the Court to impose a sentence that protects the public but at the same time seeks to promote rehabilitation.

Conclusion

[153] For the reasons set out above I have concluded that Mr. Wielgosz is a dangerous offender. I have further concluded that the public cannot be protected from Mr. Wielgosz's actions by any less restrictive sanction than an indeterminate sentence. In the circumstances, there will be an indeterminate sentence.

[154] The information should note the time he has served at 1.5 to 1.0 as this may be considered as concerns when he will be entitled to a review of his indeterminate sentence. There will also be a section 109 lifetime prohibition on the possession of firearms and a DNA order as well as an order under section 760 of the Code.

July 17, 2020

Signed: Justice Paul F. Monahan

Appendix

Sections 753 and 753.1 of the Criminal Code

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

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

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

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

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

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

(1.1) If the court is satisfied that the offence for which the offender is convicted is a primary designated offence for which it would be appropriate to impose a sentence of imprisonment of two years or more and that the offender was convicted previously at least twice of a primary designated offence and was sentenced to at least two years of imprisonment for each of those convictions, the conditions in paragraph (1)(a) or (b), as the case may be, are presumed to have been met unless the contrary is proved on a balance of probabilities.

(2) An application under subsection (1) must be made before sentence is imposed on the offender unless

(a) before the imposition of sentence, the prosecutor gives notice to the offender of a possible intention to make an application under section 752.1 and an application under subsection (1) not later than six months after that imposition; and

(b) at the time of the application under subsection (1) that is not later than six months after the imposition of sentence, it is shown that relevant evidence that was not reasonably available to the prosecutor at the time of the imposition of sentence became available in the interim.

(3) Notwithstanding subsection 752.1(1), an application under that subsection may be made after the imposition of sentence or after an offender begins to serve the sentence in a case to which paragraphs (2)(a) and (b) apply.

(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.

(4.2) If the application is made after the offender begins to serve the sentence in a case to which paragraphs (2)(a) and (b) apply, a sentence imposed under paragraph (4)(a), or a sentence imposed and an order made under paragraph 4(b), replaces the sentence that was imposed for the offence for which the offender was convicted.

(5) If the court does not find an offender to be a dangerous offender,

(a) the court may treat the application as an application to find the offender to be a long-term offender, section 753.1 applies to the application and the court may either find that the offender is a long-term offender or hold another hearing for that purpose; or

(b) the court may impose sentence for the offence for which the offender has been convicted.

753.1 (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that

(a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;

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

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

(2) The court shall be satisfied that there is a substantial risk that the offender will reoffend if

(a) the offender has been convicted of an offence under section 151 (sexual interference), 152 (invitation to sexual touching) or 153 (sexual exploitation), subsection 163.1(2) (making child pornography), 163.1(3) (distribution, etc., of child pornography), 163.1(4) (possession of child pornography) or 163.1(4.1) (accessing child pornography), section 170 (parent or guardian procuring sexual activity), 171 (householder permitting sexual activity), 171.1 (making sexually explicit material available to child), 172.1 (luring a child) or 172.2 (agreement or arrangement — sexual offence against child), subsection 173(2) (exposure) or section 271 (sexual assault), 272 (sexual assault with a weapon) 273 (aggravated sexual assault) or 279.011 (trafficking — person under 18 years) or subsection 279.02(2) (material benefit — trafficking of person under 18 years), 279.03(2) (withholding or destroying documents — trafficking of person under 18 years), 286.1(2) (obtaining sexual services for consideration from person under 18 years), 286.2(2) (material benefit from sexual services provided by person under 18 years) or 286.3(2) (procuring — person under 18 years), or has engaged in serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted; and

(b) the offender

(i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender's causing death or injury to other persons or inflicting severe psychological damage on other persons, or

(ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences.

(3) If the court finds an offender to be a long-term offender, it shall

(a) 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

(b) order that the offender be subject to long-term supervision for a period that does not exceed 10 years.

(3.1) The court may not impose a sentence under paragraph (3)(a) and the sentence that was imposed for the offence for which the offender was convicted stands despite the offender's being found to be a long-term offender, if the application was one that

(a) was made after the offender begins to serve the sentence in a case to which paragraphs 753(2)(a) and (b) apply; and

(b) was treated as an application under this section further to the court deciding to do so under paragraph 753(5)(a).

(6) If the court does not find an offender to be a long-term offender, the court shall impose sentence for the offence for which the offender has been convicted.