R. v. Breton, 2022 ONCJ 264

ONTARIO COURT OF JUSTICE

DATE: 2022 05 17 COURT FILE No.: Sudbury 4011-998173152-00

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

JEAN-CLAUDE BRETON

Before: Justice Randall W. Lalande

Heard on: March 1, 2, 3, 7, 8, 9, 10, 11, 21 and 23, April 20, 21, 22 and 25 and May 5 and 6, 2022

Reasons for Judgment released on: May 17, 2022

Counsel: Kenrick Abbott, counsel for the Crown Sherif Foda, counsel for the accused Jean-Claude Breton

LALANDE J.:

1: INTRODUCTION

[1] These are my Reasons for Judgment on a dangerous offender application brought by the Crown pursuant to section 753 of the Criminal Code. On March 12, 2019, following a multi-day trial, I convicted Mr. Jean-Claude Breton on eight (8) out of twelve (12) charges. The charges upon which Mr. Breton was found guilty and convicted (all having occurred on August 15, 2017) are the following:

1. Assault (s. 166),
2. Forcible Confinement (s. 279(2)),
3. Assault Police (s. 270(1)),
4. Resist Arrest (s. 270(1)),
5. Breach of Probation x 3 (s. 733.1), and
6. Breach of Recognizance (s. 145(3)).

[2] The Crown seeks an order declaring Mr. Breton to be a dangerous offender and imposing a sentence of detention in the penitentiary for an indeterminate period pursuant to section 753(4)(a) of the Criminal Code. In the alternative, the Crown seeks a lengthy determinate penitentiary sentence (consisting of at least an additional two-year period of custody beyond any credit for pre-trial custody) followed by a ten-year long term supervision order (LTSO).

[3] Defence counsel does not take issue that Mr. Breton has engaged in a “pattern of past repetitive behaviour or aggressive behaviour”. Defence counsel submits that all factors touching upon Mr. Breton’s conduct including past conduct must be looked at in context taking into account all relevant circumstances impacting his behaviour. Defence counsel referred to the imposition of a “proportional sentence” including a request for a recommendation that Mr. Breton be transferred to the St. Lawrence Valley Correctional and Treatment Centre (SLVCTC) or a similar facility with specialized treatment and a therapeutic environment.

[4] Defence counsel submitted that the dangerous offender application should be dismissed and Mr. Breton sentenced to a period of custody of two (2) years less one (1) day (exclusive of any pre-trial custody credit) followed by a three (3) year probation order with a term requiring Mr. Breton to consent to a Community Treatment Order (CTO) under the Mental Health Act. In the alternative, defence counsel submits that the court should treat the application as a long-term offender application under 753(5)(a) and sentence Mr. Breton to the same period of incarceration (two years less one day) followed by a five (5) year long-term supervision order (LTSO).

[5] The SLVCTC is a medium and maximum security prison in Brockville. The prison has an official capacity of 100 and contains inmates servicing sentences between 60 days and 2 years less one day. The facility is known to specifically treat prisoners with mental illnesses or developmental disabilities and is designed for a therapeutic environment.

2: BACKGROUND

[6] Following Mr. Breton’s convictions, the Crown gave notice of its intention to make an application under subsection 752.1(1) of the Criminal Code for a dangerous offender designation.

[7] On June 5, 2019, the Crown brought an application to have Mr. Breton remanded for an assessment. The assessment order was made on August 26, 2019. Mr. Breton was ordered to be assessed by Dr. Treena Wilkie, a forensic psychiatrist and was remanded to the Toronto East Detention Centre for the purpose of an assessment to be completed within sixty (60) days at the Centre for Addictions and Mental Health, Queen Street West, Toronto.

[8] In preparation for the psychiatric assessment, the Crown sought and obtained production orders from Justice of the Peace Ashick. On August 6, 2019, upon consent of both the Crown and defence counsel, I made an order unsealing records.

[9] Mr. Breton was transported to Toronto on September 12, 2019. Dr. Wilkie confirmed that she met with Mr. Breton on October 7, 2019, for approximately 10 minutes. She indicated that at the outset of her meeting with Mr. Breton, he stated that he did not wish to participate in the assessment process. According to Dr. Wilkie, Mr. Breton was, however, amenable to attending the interview room for a review of the court order and a basic outline of what the assessment process consisted of including confidentiality limits. Mr. Breton subsequently declined to participate in an interview or psychological testing and he also declined to agree that any person be contacted to provide collateral information.

[10] Dr. Wilkie prepared an extensive report without the benefit of Mr. Breton’s participation. In terms of “sources of information”, Dr. Wilkie referenced several volumes of material made available by the Crown including the following:

• Synopses, arrest records and transcripts of proceedings pertaining to the index offence and past offences;
• Mr. Breton’s criminal record;
• Correctional Services Canada records;
• Parole Board of Canada records;
• Provincial jail records;
• Probation and parole records;
• Health care records, including hospital admissions; and
• School records.

[11] An application was brought by the Crown on November 6, 2019 to extend time for Dr. Wilkie to prepare and file her report. The extension was granted on December 2, 2019. Dr. Wilkie completed her report on December 23, 2019.

[12] On February 4, 2020, the Office of the Attorney General for the province of Ontario, in accordance with subsection 754(1)(a) of the Criminal Code, consented to the Crown applying to have Mr. Breton found to be a dangerous offender. The consent was signed on behalf of the Attorney General by Deputy Attorney General Irwin Glasberg.

[13] On October 20, 2020, the Crown brought an application seeking an advance ruling with respect to the admission of numerous records and documents relating to Mr. Breton’s background and history.

[14] The hearing on the Crown’s application seeking the admission of records and documents was heard on November 2 and 10, 2021. I provided written reasons on January 18, 2022. At the outset of the hearing, defence counsel conceded the admissibility of transcript evidence of court proceedings, certified true copies of informations/indictments, warrants of committal, probation orders and ancillary orders as well as Mr. Breton’s criminal record.

[15] As expressed in my reasons, the document/records (forming part of the ruling) fell within the legal pathways of admission highlighted by the Crown and represented material expected to be introduced in a dangerous offender proceeding. The Crown confirmed to not be placing reliance on school records, hence school records were not addressed as part of my ruling.

[16] Essentially, I accepted as admissible all of the records sought to be admitted subject to weight to be determined in conjunction with the totality of the evidence. My ruling did not encompass several production orders obtained after the application for ruling was brought. I indicated that any “other material” would not be presumptively ruled as admissible, and that counsel would be at liberty to make follow up submissions on the admissibility of any further such material.

[17] The records/documents introduced by the Crown in accordance with my ruling are mostly contained in bound indexed volumes identified as follows:

• Transcript evidence of court proceedings;
• Certified true copies of informations/indictments, warrants and committal, probation orders and ancillary orders;
• The respondent’s criminal records;
• Previous psychiatric and psychological reports/assessments;
• Hospital records;
• School records;
• Provincial custodial records, including misconduct reports while incarcerated;
• Probation records;
• Correctional Service of Canada records;
• National Parole Board records; and
• Police records relating to past convictions, including occurrence reports and witness statements relating to the respondent for prior convictions, and statements given by the respondent.

[18] Any additional records or documents obtained subsequent to my ruling (and entered as exhibits) have been disclosed between counsel and dealt with subject to the terms of my ruling.

[19] Defence counsel brought a notice of application for an order that Mr. Breton be assessed by Dr. John Bradford. The Crown consented on December 8, 2021. I made an order on December 14, 2021, which included (as requested) that the assessment be conducted at the St. Joseph Health Care Centre, Hamilton.

[20] A fresh application record was filed on February 1, 2022. The record sets out a detailed outline of the evidence intended to by relied upon by the Crown.

3: OVERVIEW

3:1 Early Personal History

[21] Mr. Breton is 39 years of age. He was born on September 22, 1982. Information regarding his personal history and upbringing is referenced within the material and records filed. This would include a pre-sentence report prepared at the request of Justice A. Guay for a sentencing hearing set for November 25, 2013. At that time, Mr. Breton was 31 years old and appearing before the court on charges of robbery, possession of a weapon and failure to comply with a probation order.

[22] Mr. Breton was born in Sudbury. In his early childhood years, he was raised in the Estaire area. His mother worked a lot and his grand-parents in large part acted as his parents. When he was approximately 10 years old he moved to Ottawa with his mother where they resided for approximately 2 years. He and his mother then moved to Fort Erie for several years. His step-father “came into the picture” when he was 12 or 13 years old. He returned to the home of his grand-parents at the approximate age of 14 years. His grand-parents have always made efforts to remain a source of support.

[23] Ms. Patterson (probation services) indicated that Mr. Breton’s grand-mother, Carmen Breton, pointed out that he had behavioural issues starting when he was quite young. Mr. Breton himself stated that he was diagnosed with ADHD while still attending grade school. His grandmother confirmed that there were times, that when on his proper medicine dosage, he appeared to be much calmer and easier to talk to. She also indicated that if not on his medication, he would “act before thinking”. Mr. Breton’s grandmother said that she believes that his life might have been different (presumably from the onset) had his condition been addressed properly.

[24] Mr. Breton’s personal circumstances as he progressed into adulthood shall be further addressed in these reasons.

3:2 Predicate Offence

[25] The predicate offence, (plus 7 other counts), involved occurrences which all took place on August 15, 2017. At that time, Mr. Breton would have been 34 years old. He was found guilty on March 12, 2019 and has remained in custody.

[26] The facts relating to the predicate offence upon which Mr. Breton was found guilty are set out in my reasons for judgment released on March 12, 2019 and need not be fully repeated for the purpose of these reasons.

[27] Mr. Breton and Sarina Cloutier (complainant) had been close friends for a number of years. Their relationship became more intimate starting in February 2017. Ms. Cloutier resided in an apartment on Pine Street in the City of Greater Sudbury. For the most part Mr. Breton had recently been residing with her.

[28] Mr. Breton and Ms. Cloutier had been quarrelling over a number of days. On August 10, 2017, Mr. Breton attended at probation services. Ms. Cloutier accompanied him. The appointment was scheduled for 2:00 p.m. Ms. Cloutier wanted to speak with Mr. Breton’s probation officer because she felt that his “mental condition” had been worsening. She wanted to inquire about him accessing services.

[29] Ms. Cloutier spoke with Mr. Breton’s probation officer in his absence. He became upset that she did so. He became disruptive, matters deteriorated, and police were called. Mr. Breton was arrested during the evening the next day, August 11, 2017.

[30] On the day following his arrest, August 12, 2017, Mr. Breton was released from WASH court. His recognizance of bail contains a condition that he not contact Sarina Cloutier or be within 50 meters where she is known to be. The condition also applies to his probation officer Erin Olesen-Schinke except for scheduled appointments.

[31] On the very afternoon of August 12, 2017, Mr. Breton and Ms. Cloutier agreed to meet at a small local park. They both consumed non-prescription drugs. Later that day, he called her. She agreed that he return to the apartment.

[32] On August 14, 2017, Mr. Breton and Ms. Cloutier had a further falling out. According to her, he “blew up and freaked”. He attended at the residence. She refused to allow him entrance. She threatened to call the police. He left. They communicated by phone in the early hours of August 15, 2017.

[33] On August 15, 2017, she exited her apartment to fetch money which she thought Mr. Breton had left in her mailbox. To her surprise, he was outside waiting for her. There was then a struggle in the small main entrance area to the building. They ended up, upstairs on the main level of her apartment. She indicated that she did not recall specifically how they got upstairs. She said, “I had many panic attacks”.

[34] Once upstairs, Ms. Cloutier stated that Mr. Breton restrained her because he was afraid that she was going to leave. She said: “He tied me up by using duct tape taken from the bedroom”. Her evidence indicates that he used duct tape to tie her hands and legs. She also made mention of him having used a robe belt to tie or re-tie her hands.

[35] During the period that she was restrained, Ms. Cloutier stated that Mr. Breton slapped her face. They were in the bedroom. In terms of overall injuries, she said: “I had a few bruises, not that bad, nothing was broken”.

[36] In her evidence, Ms. Cloutier said that she had been in the room where she was tied up for a long time. Ms. Cloutier indicated to be tied up for two hours.

[37] At one point Mr. Breton did untie her. She said she was having an anxiety attack and needed asthma medication. Her legs were untied. She went to the bathroom three times. On the second or third bathroom visit she called 9-1-1. She said that she was afraid of matters escalating. The third time she went to the bathroom, she seized the occasion to run outside and up the street. She was wearing a sweater and track pants. He chased after her.

[38] Once outside, Ms. Cloutier ended up in a sitting position on the ground. It was obvious that he was pulling at her hands/arms in an attempt to drag her toward or with him. A passing motorist, Ms. Robitaille, stopped her vehicle at curbside adjacent to the sidewalk where Ms. Cloutier was seated. In her evidence, she stated: “He jumped on her, grabbed her. She threw herself to the ground to resist. She did not want to go with him”. Ms. Robitaille screamed at Mr. Breton to stop.

[39] Police arrived at the scene. The Acting Sergeant saw Mr. Breton on the porch. He was wearing underwear or boxer shorts and held some clothing in his hands. Mr. Breton denied any involvement or having done anything wrong. He described Mr. Breton as being agitated, a little aggressive, volatile and yelling. He described Ms. Cloutier as crying, distraught, upset, and adamant that she had been assaulted. Another officer told Mr. Breton to remain, but he took off running and the officer successfully chased him and used physical force to take control of him in an adjacent apartment.

[40] Mr. Breton was found guilty of the offence of confinement. Ms. Cloutier had been restrained physically (and with the use of duct tape). She was restrained for a period approximating two hours. He was also found guilty of assault. The evidence included Mr. Breton having slapped her in the face and having attempted to tug her toward him outside on the sidewalk as she was making efforts to resist. He was found guilty of resisting Constable Duguay at the time of his arrest when police were attempting to physically gain control of him. He was also found guilty of assaulting Constable Dionne by spitting saliva on him after having been lodged in a cell at police headquarters. Mr. Breton also breached a probation order made by Justice Villeneuve on September 28, 2016 as well as a probation order made by myself of July 10, 2017. He was also found guilty of having communicated with Sarina Cloutier contrary to the terms of his bail release order.

[41] At the time Mr. Breton was found guilty of the predicate offence, he was subject to the following probation orders:

• September 28, 2016, Justice Villeneuve, for a period of two years on charge of assault and uttering threats (x 2).
• July 10, 2017, Justice Lalande, for a period of two years on charges of assault, breach of probation (x 2) and assault police. This order also contains conditions that:
  • He only communicate with Sarina Cloutier while in the presence of a third party who is older than 18 years and not harass, molest or physically interfere with her;
  • That he not be within 100 meters of any place where he knows Sarina Cloutier to be.

3:3 Criminal History

[42] A copy of Mr. Breton’s criminal record appears in volume 1 (book 1) of the Crown’s book of documents (exhibit 3-A). The entries commence in 1997 (youth court) and conclude in July 2017. The record is not current. Further convictions (not recorded) were registered on March 12, 2019 (the index offences), June 10, 2019 (assaulting a peace officer) and November 14, 2019 (uttering threats, breach of probation, causing a disturbance and mischief under $5000).

[43] As an adult, Mr. Breton has been convicted of over 50 criminal offences including offences of violence. These would encompass aggravated assault (x 2) robbery (x 2), assault police (x 2), assault with a weapon and assault (x 7). Other offences would include uttering threats (x 8), breach of court orders (x 23), theft (x 2), obstruction, possession of a weapon and attempt to obstruct justice.

[44] The most recent convictions registered on his record were entered on July 10, 2017, approximately one month before he was found guilty of the predicate offences. He was subsequently found guilty of the predicate offences on March 12, 2019, following which he committed further offences (as above-noted) with convictions being registered on June 10, 2019 and November 14, 2019.

[45] Of significance, for the purpose of the instant proceedings, are the nature and number of prior convictions as well as the numerous convictions (exceeding 20) for failing to comply with court orders requiring him to observe conditions of community supervision. He was convicted of fail to comply with a probation order approximately one month before committing the predicate offences and he breached several conditions on his recognizance of bail on the same day it was made (August 12, 2017). This included communicating with the complainant and failing to physically stay away from her.

[46] Mr. Breton was sentenced to two (2) penitentiary terms. His first federal sentence totalled four (4) years in addition to pre-trial custody for offences of aggravated assault, uttering threats, fail to comply with a probation order and attempt to obstruct justice. He was brought to the Millhaven Institution, maximum security.

[47] Mr. Breton requested a voluntary inter-regional transfer from maximum security at Millhaven to medium security at the Collins Bay Institution. A final decision approving the transfer was made on January 18, 2008.

[48] Mr. Breton’s second federal sentence was for a term of 48 months (reduced on appeal to 46.5 months) subject to pre-sentence custody. The convictions were for offences or robbery, possession of a weapon, fail to comply with probation orders (x 3). He was brought to the Colllins Bay Institution. The institution initiated an involuntary transfer to Millhaven. The case management team approved the transfer, however, it was not implemented by the commissioner.

[49] Numerous records have been provided regarding Mr. Breton’s circumstances during the time he spent as an inmate in both provincial and federal correctional facilities.

4: STATUTORY FRAMEWORK

[50] In accordance with part XXIV of the Criminal Code, a dangerous offender proceeding, proceeds in two stages. The designation stage and the penalty stage. At the first stage, if the court is satisfied that the dangerous offender criteria in section 753(1) have been met, the court must find the offender to be a dangerous offender. At the second stage (if the offender is found to be a dangerous offender), the court must decide whether indeterminate sentence, a determinate sentence of at least two (2) years (combined with a period of long term supervision of up to ten (10) years) or an original determinate sentence must be imposed.

[51] Under section 753(4.1) the court must impose an indeterminate sentence on a designate offender unless satisfied that there is a reasonable expectation that a lesser sentence will adequately protect the public. This section appears to indicate that an indeterminate sentence becomes the presumptive sentence. In R. v. Boutilier, 2017 SCC 64, [2017] S.C.J. No. 64, the Supreme Court indicated that the section simply provides guidance on how a sentencing judge should properly exercise his or her discretion in accordance with the applicable objective and principles of sentencing, recognizing that the dangerous offender provisions emphasize protection of the public. The Supreme Court referenced the framework for sentencing judges as outlined by Justice Tuck-Jackson of the Ontario Court of Justice, R. v. Crowe, No. 10-20023990, March 20, 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 of 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.

[52] Under section 753(5), if the court does not find the offender to be a dangerous offender, it may treat the application as an application to find the offender to be a long term offender under section 753.1. It is also open to the Crown to make a direct long term offender application under section 753.1(1).

[53] Based on the circumstances of Mr. Breton’s case, the Crown has chosen to proceed under section 753(1)(a) which can generally be understood as applying to violent offences and not under section 753(1)(b) which relates to sexual offences.

[54] Under section 753(1)(a), the court is to consider whether the evidence establishes a pattern of repetitive or aggressive behaviour resulting in a threat to the safety of the public [as described in sub-paragraphs (i) and further in (ii)] or is of a brutal nature [as described in sub-paragraph (iii)].

[55] Section 753(1)(a) reads as follows:

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…

[56] The Crown bears the onus to establish that an offender meets the criteria for dangerousness. The threat element posed by an offender must be proved beyond a reasonable doubt. The “overriding purpose” of the dangerous offender regime remains protection of the public.

[57] No issue is taken with Mr. Breton having committed “a serious personal injury offence”. The offence of forcible confinement is an indictable offence (the Crown having elected by indictment) with a maximum period of imprisonment of ten (10) years. Ms. Cloutier was assaulted. She was a victim of violence during and at times related to the confinement.

[58] There is no minimum violence threshold that must be reached in order for a finding of a “serious personal injury offence”. I am satisfied that Mr. Breton’s conviction for forcible confinement is a serious personal injury offence.

[59] In order for an offender to be found to be a dangerous offender, the Crown must prove that the offender constitutes a threat to the life, safety or physical or mental well-being of other persons. For this “second threshold” to be met, Mr. Breton’s past conduct must demonstrate a pattern including elements of criminal behaviour, violence, endangerment or the likelihood of either; there must be a lack of restraint or substantial indifference and there must be a relatively high level of intractability.

[60] The issue of an offender’s “treatability” is relevant both at the designation stage (finding of dangerousness) or at the penalty stage in determining the appropriate sentence to be imposed. In Boutilier (supra), the Supreme Court made it clear that before designation, a sentencing judge must be satisfied that the offender’s conduct is intractable and that a sentencing judge must consider an accused’s treatment prospects both at the designation stage as well as the penalty stage. In referencing the decision of R. v. Lyons, [1987], 2 S.C.R. 309, held that four criteria were explicitly required in the language of s. 753(1):

1. The offender must be convicted of, and is to be sentenced for a “serious personal injury offence”. (the objective element of dangerousness);
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 last three criteria constitute the subjective part of the assessment of the threat posed by the offender, and the third and fourth are future-oriented.

[61] The overall goal at the designation stage is to assess future risk and protect society from those who demonstrate a likelihood to recommit offences.

[62] It is to be noted that at the outset of the proceedings, defence counsel indicated to not be taking issue that Mr. Breton has engaged in a “pattern of past repetitive behaviour or aggressive behaviour”. Also, and in accordance with section 753(1.1), if the court is satisfied that one of the offences upon which the offender was 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 the convictions, the “pattern” in paragraphs 753(1)(a) or (b) are presumed to have been met.

5: THE ISSUES

[63] Does Mr. Breton meet the criteria set out in ss. 753(1)(a)(i) and (ii) of the Criminal Code such that he should be declared a dangerous offender?

[64] If so, is there a reasonable expectation that a lesser measure falling short of an indeterminate sentence will adequately protect the public against the commission by Mr. Breton of murder or a serious personal injury offence?

6: THE EVIDENCE

[65] On October 29, 2020, the Crown brought an application for an advance ruling regarding the admissibility of numerous records and documents (obtained by the Crown pursuant to production orders) relating to Mr. Breton. For reasons indicated in my ruling provided on January 18, 2022, the records and documents were ruled admissible. The majority of the records and documents introduced by the Crown are contained in four (4) bound indexed volumes now forming part of 55 exhibits entered in these proceedings.

[66] There were extensive submissions made by the defence regarding the scope and reliability of many of the reports and documents referenced by the Crown. The Crown referred to the decision of R. v. Gregoire, [1998] M.J. No. 447, decided by the Manitoba Court of Appeal. At paragraph 63 of the decision, the court states:

“This has now developed into a well-recognized exception to the hearsay rule and is applicable to the facts of this case. All of the authors of the documentary evidence had extensive personal knowledge of the accused because it was part of their job to acquire such information. It was also part of their job to make reports about the accused’s activities and progress within the prison system that became part of the official record for the purposes of parole and prison discipline. They are clearly admissible as an exception to the hearsay rule.”

[67] The admission into evidence of records including nurses’ notes, police records, correctional records, medical reports (including psychiatric/psychological assessments), probation records, criminal records, parole board records and other records prepared by persons having personal knowledge of the matters being recorded and under a duty to make such records, has been ruled upon in many decisions.

[68] Generally speaking, when records and documents are prepared contemporaneously by someone having personal knowledge, the corresponding duty to make entries or records, then they may be received in evidence as “prima facia proof” of the facts stated therein. This, however, does not preclude an opposing party wishing to challenge the accuracy of records or entries from doing so. This has been judicially well-recognized on the argument that portions of certain records such as police synopses or correctional records may be less reliable. While a generous approach to admissibility may be taken once the evidence is admitted, the issue of appropriate weight must be considered taking into account context and the totality of the evidence

[69] The Crown called nine (9) witnesses including two (2) expert witnesses: Dr. Treena Wilkie, a Forensic Psychiatrist, and Dr. Amil Joseph, a Correctional Psychiatrist who, on a scheduled visitation basis, treated Mr. Breton at the Sudbury District Jail.

[70] The defence called two (2) witnesses: Mr. Lee Chapelle, President of Canadian Prison Consulting Inc. and, Mr. Breton’s grandmother, Ms. Carmen Breton. Mr. Breton did not testify.

6:1 Expert Witnesses

[71] An assessment order was made on August 26, 2019. Mr. Breton was ordered to be assessed by Dr. Treena Wilkie, a Forensic Psychiatrist. Mr. Breton was remanded to the Toronto East Detention Centre for the purpose of an assessment to be completed at the Centre for Addictions and Mental Health.

[72] Dr. Wilkie provided a lengthy report dated December 29, 2019. As already indicated in these reasons, the report was prepared without the benefit of Mr. Breton’s input. Although Dr. Wilkie personally met with Mr. Breton on October 7, 2019, he declined to participate in an interview or any psychological testing.

[73] Dr. Wilkie indicated in her testimony that Mr. Breton said that he understood that she had a job to do but could likely not write a useful report without speaking with him. Dr. Wilkie confirmed that Mr. Breton was aware that numerous documents were provided to her for the purpose of completing a risk assessment and that, in the absence of his participation, she would be completing a report based solely on those documents.

Dr. Treena Wilkie

[74] Dr. Wilkie completed a residency in psychiatry at the University of Toronto in 2005. She was designated as a specialist in forensic psychiatry in 2013. She currently holds the position of staff psychiatrist, Complex Care and Recovery Program at the Centre for Addiction and Mental Health. She is also an associate professor at the University of Toronto.

[75] Dr. Wilkie prepared a report that was filed as an exhibit (exhibit 7) and she testified at length at the sentencing hearing. Although Mr. Breton chose not to participate, Dr. Wilkie was able to complete her report on the basis of an extensive review of voluminous documents and records which in her own words, provided “a great deal of information”. She identified the information reviewed to have included prior psychological testing, medical records (including multiple contacts with mental health professionals), collateral information from family members and lengthy period of time in jail and prison during which time Mr. Breton’s mental state and behaviour was documented.

[76] In Dr. Wilkie’s view, the extensive information available was sufficient for her to complete a risk assessment and offer an opinion regarding risk management. She acknowledged that there was a limitation because Mr. Breton chose not to participate in the process, namely; that an understanding of his current attitudes, motivation (including a description of his goals and future plans) remained elusive or unknown. She also referenced the absence of up-dated psychological testing usually prepared for assessment purposes.

[77] Dr. Wilkie indicated that Mr. Breton does not appear to suffer from a major illness such as schizophrenia or bipolar affective disorder. He suffers from borderline personality disorder, anti-social personality disorder and substance use disorders (in remission in a controlled environment). She also indicated that in childhood, Mr. Breton was diagnosed with attention deficit hyperactivity disorder (ADHD). He has also sustained multiple head injuries throughout his adult life.

[78] Personality disorders, as indicated by Dr. Wilkie, are static. Psychiatric treatment for persons suffering from personality disorders tends to fall within the psychological rather than pharmacological realm (although not exclusively). Overall management rather than treatment is usually the focus. In her report, Dr. Wilkie also pointed out that from a diagnostic perspective, it is difficult to parse out the relative contribution of Mr. Breton’s head injuries.

[79] Dr. Wilkie indicated that Mr. Breton’s attitude toward treatment or supervision is largely unknown. Based on his history, he has been amenable to some programing (i.e. including from Aboriginal Services) while in custody under a high level of structure and supervision. However, according to Dr. Wilkie, Mr. Breton has historically shown little motivation to participate in supervision or programing when in the community.

[80] Dr. Wilkie explained that the understanding of psychopathy has been greatly enhanced by the repeated validation of the Psychopathy Check List-Revised (PCL-R). The PCL-R is a diagnostic tool based on a file review and a clinical interview of the offender. It comprises of 20 items that can be rated 0, 1 or 2. The PCL-R is comprised of two sub-scales; Factor 1 measures exploitive values and attitudes and Factor 2 addresses indicia of behavioural dis-control. Dr. Wilkie stated that the developer of the PLC-R has defined psychopathy as being evidenced by a score of 30 or greater. Mr. Breton’s PLC-R score was 27 out of a possible 40. There is standard error of measurement rang of plus/minus 3.25. The score is broken down into Factor 1 (8) and Factor 2 (19). According to Dr. Wilkie, “Mr. Breton appears to evidence a high degree of psychopathic traits. In and of itself, this would be considered highly predictive of future general and violent recidivism”.

[81] Mr. Breton was also scored on the Violence Risk Appraisal Guide (VRAG). It is an actuarial instrument for predicting violence among male offenders. It is used in conjunction with a prior history of violent offending and offers a probabilistic estimate of risk of committing a further violent offence within a specific 10-year time period. Mr. Breton’s score on the VRAG was 20. This score placed him in eighth or nineth ascending categories of risk, and a high risk category.

[82] In terms of criminogenic variables, Dr. Wilkie referenced the Historical Clinical Risk Management-20 Version 3 (HCR-20V3). This is a structured professional judgment tool for risk factors empirically related to future violence. Dr. Wilkie identified and considered the risk factors in arriving at her conclusion that Mr. Breton is likely to re-offend while in the community.

[83] Dr. Wilkie also made reference to the Structured Assessment of Protective Factors (SAPROF). She explained that this tool was developed for the assessment of protective factors for adult offenders. It was intended to be used in addition to other tools such as the HCR-20. The SAPROF contains 17 protective factors organized into three scales. Mr. Breton’s key protective factors include medication use, availability of professional care, living circumstances and external control. Items that could be bolstered to increase his protective factors include his coping, self-control and leisure activities. Overall, he was assessed as posing a low degree of protective factors, especially in the community.

[84] Dr. Wilkie identified Mr. Breton’s multiple head injuries. She underscored his apparent inability to engage in treatment programing outside an environment with a high degree of structure. In her summary, Dr. Wilkie states;

“There are significant challenges, from a psychiatric perspective, regarding Mr. Breton’s manageability in the community, even if strict conditions were in place and he agreed to follow through with the conditions. Mr. Breton has been detained for prolonged periods in institutions during his adult life and has limited coping resources. Due to acquired brain injuries, profound impulsivity, and severe substance use disorders and personality dysfunction, his response to treatment and management interventions is likely to be limited. As previously noted, the risk assessment suggests that he is at risk of re-offending violently in the community”.

[85] In her conclusion, Dr. Wilkie indicates that a realistic initiation and implementation of a comprehensive, multi-modal treatment and management plan with engaged sustainment over the long term would be required to manage Mr. Breton. This, according to her, would be challenging from a psychiatric perspective. In her final conclusion, she states that given the available information, in her view, there is not a reasonable expectation that his risk could be managed in the community.

Dr. Amil Joseph

[86] Dr. Joseph did not provide a report. He was called by the Crown to testify. He has been licensed to practice psychiatry in Canada since 1997 and he has practiced in Sudbury for over 20 years. Dr. Joseph described that his role as a Corrections’ psychiatrist is to look after the psychiatric needs of the inmates, deal with issues such as anger which may be due to mental illness, addiction to or withdrawal from drugs.

[87] Generally, Dr. Joseph indicated that “he tries to keep them safe”. He said that he cannot spend a great deal of time with each inmate patient but, overall, he and his colleague, Dr. Veluri do the best that they can.

[88] Dr. Joseph discussed the charting process and the importance of accurately preparing records. He made reference to a progress note which confirmed that he had been treating Mr. Breton since 2017 (approximately 5 years). He was knowledgeable about Mr. Breton’s serious brain injury occurring in June 2017. On that occasion, Mr. Breton had undergone surgery to have a broom handle particle surgically removed from his head.

[89] Dr. Joseph testified that he has had many discussions with Mr. Breton over medication including the type of medication he was prescribed and the dosage. He said that the issue of drugs and medication was a frequent theme he discussed with Mr. Breton. At one point he stated: “He (Mr. Breton) always wants to increase his meds”.

[90] Dr. Joseph was questioned about Mr. Breton having been placed in segregation. He was unaware of any particulars. He did indicate that he had not observed deleterious effects after Mr. Breton had been placed in segregation. He did, however, indicate that the effects of segregation may depend on the duration and that overall segregation may lead to or present complex issues.

[91] Dr. Joseph stated to not have documented any cognitive concerns. He spoke about Mr. Breton’s history and his early diagnosis of ADHD for which he believed he was not treated. In terms of Mr. Breton’s history, Dr. Joseph referred to him as not having had a father figure, dropping out of school early, not having had a stable job, not having benefitted from good formative years, being involved in taking illicit drugs and having been in and out of the criminal justice system.

[92] Dr. Joseph diagnosed Mr. Breton with a Depressive Disorder which he said was persistent. He confirmed that Mr. Breton needs constant treatment. He did not contradict the diagnoses described by Dr. Wilkie.

[93] Dr. Joseph confirmed that Mr. Breton is much calmer now that he was 5 years ago. He said the Mr. Breton is highly engaged in his treatment. He clearly expressed that a vital component in Mr. Breton stabilizing or doing better is the abstinence of illicit drugs. Although Mr. Breton’s demeanour and attitude has fluctuated in the past, Dr. Joseph stated that he has no fear meeting with him. He is familiar with Mr. Breton’s ups and downs.

[94] Toward the end of his testimony in cross-examination, Dr. Joseph stated that Mr. Breton is “back on track”. He agreed with defence counsel’s suggestion that ideally Mr. Breton would be better off in a therapeutic environment. He also testified that aggressive behaviour in males is often seen to taper off after age 40. Dr. Joseph, however, was not able to provide detail or conclude that any such trend was particularly applicable to Mr. Breton.

[95] Dr. Joseph in cross-examination confirmed that he is aware that the Sudbury District Jail is not a therapeutic environment and that there are limitations to treatment. He also views Mr. Breton’s continuity of care as a positive factor. The overall gist of his evidence is that Mr. Breton is calmer when he sees him. This is an advantage to him and Mr. Breton being able to communicate for purposes of his treatment.

6:2 Other Witnesses

[96] Dr. Treena Wilkie and Dr. Amil Joseph were the only two expert witnesses who testified. Both were called by the Crown. The Crown also called other witnesses who testified in various capacities within the correctional system and on behalf of probation services. These would included:

• Paul Morin – corrections officer, Sudbury District Jail. His duties include a supervisory component. His evidence also included finding a homemade weapon on August 13, 2019;
• Tracy McCandless – corrections officer, Sudbury District Jail. She also testified regarding an incident occurring August 13, 2019 involving a homemade weapon;
• Brad Tamcsu – Ministry of the Solicitor General. His evidence touched upon general information, keeping and overview of institutional policies including rehabilitation goals;
• Maria Gorsky – Corrections Service Canada. Her duties touch upon inmate intake and discharge procedures, reintegration programs, treatment programs and implementation of long term supervision orders;
• Connie Lacroix – Probation Services. Her evidence included processing clients, keeping records and processing files;
• Erica Lynn Wilson – health care manager, Sudbury District Jail. She provided evidence about record keeping, occurrence reports, charting, incidents involving Mr. Breton including segregation;
• Sandi Desjardins – Federal regional transfer coordinator. Her evidence included the moving of offenders within the correctional system, record keeping RTC (Regional Treatment Centre), discharge planning, segregation and an overview of other issues touching upon operational issues including segregation and the content of reports impacting Mr. Breton.

[97] For purposes of these reasons, I have not provided a summary of the evidence given by each of the above-named witnesses. They have each testified at length. All of their evidence has been considered and it should not be taken that their evidence, even if not specifically referenced, has not been given appropriate weight.

[98] On the first scheduled date for oral submissions by counsel (to supplement written submissions), May 5, 2022, the court was advised that an incident had occurred at the Sudbury District Jail involving Mr. Breton on April 29, 2022. Sgt. Allyssa Unwin was called as further witness by the Crown. She is classified as a security sergeant at the Sudbury District Jail. In addition to Sgt. Unwin’s evidence, the court received a series of reports:

• Accident/Injury report;
• Misconduct report;
• Use of force occurrence reports (2); and
• Occurrence reports (3).

The occurrence reports were filed as a composite exhibit (exhibit 55).

[99] As above-noted, the defence called two (2) witnesses; Mr. Lee Chapel, president of Canadian Prison Consulting Inc. and Mr. Breton’s grandmother, Ms. Carmen Breton.

7: POSITION OF THE PARTIES

[100] The Crown and defence counsel each submitted written submissions, supplemented by limited oral submissions. In these reasons I shall only touch upon the essence of the positions advanced by counsel and does not capture the fullness of their respective submissions.

7:1 The Crown

[101] In the Crown’s submission, Dr. Wilkie provided clear and compelling evidence. She acknowledged that Mr. Breton’s refusal to participate created certain limitation which she fully addressed in arriving at her opinion.

[102] Crown counsel in summarizing the components of Dr. Wilkie’s report, emphasized that in her conclusion, based on both clinical and actuarial perspectives, she determined Mr. Breton to be at high risk for general and violent recidivism.

[103] The Crown also commented on the evidence of Dr. Joseph. Dr. Joseph was Mr. Breton’s treating psychiatrist at the Sudbury District Jail. Dr. Joseph did not disagree with the diagnoses advanced by Dr. Wilkie. He did, however, add a further diagnosis, namely “a depressive disorder” which is now regulated by medication.

[104] The Crown submitted that the court must take a “totality” approach to the evidence. The Crown submitted that as in the predicate offence, Mr. Breton’s history demonstrates continuous incidents of impulsive but serious violence against others, some of which violence having occurred within the drug sub-culture. More recently, his victim has been his common-law spouse.

[105] The Crown highlighted past incidents where Mr. Breton engaged in assaultive and threatening behaviour against women. This includes the predicate offence where Mr. Breton forced his way into Ms. Cloutier’s home, tied her up, slapped her across the face and kept her confined for hours.

[106] The Crown also spoke of Mr. Breton’s custody conduct. He briefly referred to the testimony of Tracy McCandless, an experienced Corrections officer at the Sudbury District Jail. On August 13, 2019, Mr. Breton was transferred from the jail to court and back (although for unclear reasons he was not required to attend at court that day). On his return to the jail facility, Officer McCandless observed Mr. Breton transfer a sock from his pocket to his waistband area and then place it into his garment bag. The garment bag was searched. It contained an item described as a “shank”. The shank measured five to six inches in length. Electrical tape was wrapped around the handle. In his description, the officer also indicated the presence of a razor blade covered in a sheath.

[107] During his testimony, Officer McCandless was also questioned about an earlier misconduct order prepared in 2010. At that time, Officer McCandless had prepared an occurrence report. On that occasion, Mr. Breton was escorted to a dental appointment. He wanted to use a public washroom. This was not permitted. Some minor resistance resulted. Subsequently the washroom was searched. Officers discovered items taped to each toilet in the washroom. The evidence does not clearly describe these items, however, in the same washroom, a razor blade was found taped inside the towel dispenser.

[108] In the Crown’s submission, there is ample evidence to designate Mr. Breton a dangerous offender. In dealing with the penalty phase, the Crown referred to Justice Hill’s decision in R. v. D.B., 2015 ONSC 5900, [2015] O.J. No. 5138 emphasizing that the “totality of the circumstances must be scrutinized” when assessing whether or not there is a reasonable expectation that a lesser measure than an indeterminate sentence will adequately protect the public.

[109] The Crown addressed each of the non-exhaustive 13-point list of factors provided in Justice Hill’s decision. He attributed portions of the evidence heard in these proceedings to each of the 13 points listed in Justice Hill’s decision.

[110] The Crown provided submissions of the issue of whether the evidence supports that there is a reasonable expectation that a lesser measure than an indeterminate sentence would adequately protect the public. Ultimately, the Crown submitted that because the evidence establishes Mr. Breton to be at high risk to reoffending violently, there is no basis for ordering a lesser measure and that an indeterminate sentence should be imposed.

[111] It is to be noted that the Crown also provided supplementary oral submissions which in part served to re-enforce its overall position on issues of designation and sentencing, reviewing relevant case law and responding to the position(s) taken by the defence.

7:2 The Defence

[112] The defence submitted that Mr. Breton has endured significant obstacles starting when he was a child. He was diagnosed with ADHD, which in large part was left untreated. He has suffered from three brain injuries while in custody (2007 and 2017) as well as a severe facial fracture injury incurred in 2011. Defence also highlighted that the index offence(s) was committed less than one month after Mr. Breton was discharged from hospital in 2017.

[113] Mr. Breton spent lengthy periods of time in segregation. He has amassed numerous institutional misconduct reports. Defence counsel outlined that there has been a notable decline in the notation of such institutional misconducts since 2017 and that this correlates with the treatment that Mr. Breton is receiving by Dr. Joseph.

[114] In defence counsel’s submission, Mr. Breton has benefitted from continuity of care by Dr. Joseph, is engaged in his treatment, has improved over the past five years and is expected to make further progress. Dr. Joseph testified that Mr. Breton is not in a therapeutic environment and that this presents limitations to treatment.

[115] On the issue of Mr. Breton’s motivation to positively move forward, defence counsel summarized the evidence of Mr. Lee Chapelle (president of Canadian Prison Consulting Inc.) and Mr. Breton’s grandmother, Carmen Breton.

[116] Defence counsel extensively discussed the following three issues:

• That Dr. Wilkie’s actuarial assessments are flawed and unreliable;
• That Dr. Joseph’s evidence supports the fact that Mr. Breton’s behaviour has improved;
• Sentencing options dependent upon whether Mr. Breton is (or not) found to be a dangerous offender.

[117] Defence counsel stated that there are at least three (3) items scored by Dr. Wilkie on the PCL-R that improperly increase Mr. Breton’s score. These items are:

• Item 5, “conning/manipulation”;
• Item 9, “parasitic lifestyle”; and
• Item 12, “early behavioural problems”.

[118] In his submission, defence counsel argued that these three items were improperly scored such rendering Dr. Wilkie’s assessment unreliable and of no assistance in precluding violent recidivism.

[119] Defence counsel also submitted that Dr. Wilkie did not fairly score the VRAG. He identified what he described as three (3) critical errors which, if corrected, would decrease Mr. Breton’s score considerably.

[120] Moreover, defence counsel submitted that the erroneous PCL-R score, artificially increased Mr. Breton’s VRAG score by 4 points thus skewing its result.

[121] In summary, defence counsel submits that Mr. Breton does not pose a high likelihood of harmful recidivism which is fatal to the designation stage. Defence counsel also urged the court to render preference to Dr. Joseph’s testimony over that of Dr. Wilkie.

[122] Other factors spoken about by defence counsel include the concept that violent recidivism rates decrease in men over 40 years old. In terms of Mr. Berton dealing with risk factors, Dr. Joseph addressed the importance of the following:

• Continuing to engage in pharmacological intervention for ADHD, depressive disorder and substance use disorder (counsel submits that Mr. Breton is motivated);
• Staying away from illicit drugs. Counsel submits that Mr. Breton has confirmed his commitment to do so and to also stay away from Sudbury; and
• Treatment of Mr. Breton’s brain injuries to be addressed (reliable and meaningful treatment).

[123] Defence counsel submitted that Mr. Breton’s conduct is not intractable. He also expressed reasons for which Dr. Wilkie’s opinion on intractability should be given little or no weight.

[124] Overall and with regard to the records before the court, defence counsel submitted they contained fatal integrity flaws and consequently should be afforded limited weight. More specifically the frailty of reports and documents upon which Dr. Wilkie relied (police synopses, occurrence reports and youth records) impacts the reliability of her assessment report.

[125] Defence counsel submitted that the Crown’s application for a dangerous offender designation should be dismissed. The court should impose a determinate sentence under section 735(5)(b). In the alternative, under section 753(5)(a), the court may treat the section 753 application as an application to find Mr. Breton a long-term offender. In doing so, submits counsel, the same determinate sentence should be imposed followed by a five-year long-term supervision order.

[126] Defence counsel throughout the proceedings indicated that the court should make a strong recommendation that Mr. Breton be admitted or transferred to the St. Lawrence Valley Correctional and Treatment Centre. I have already particularized defence counsel’s position (see paragraph 3, 4, and 5 above).

[127] In summary, defence counsel maintains that Mr. Breton is not a dangerous or long-term offender, that he has been improving since receiving continuing of treatment and that he has compelling prospects of improving. The limitation of Mr. Breton’s treatments thus far, are largely because of a lack of resources in the provincial and federal institutions. Overall, defence counsel submits that Mr. Breton is treatable, motivated to improve and does not pose a high likelihood of harmful recidivism. In a nutshell, he deserves a chance to receive treatment and to reintegrate into the community.

8: ANALYSIS

8:1 Designation

[128] Where the Crown seeks to have an accused declared a dangerous offender, the overarching consideration is the protection of the public. The Crown has the burden of establishing beyond a reasonable doubt that Mr. Breton meets the dangerous offender criteria as set out in section 753(1) of the Criminal Code.

[129] As already referenced in these reasons, the Crown has assiduously compiled documents and records relating to Mr. Breton’s correctional and medical history.

[130] The only forensic psychiatric evidence was provided by Dr. Wilkie. Dr. Wilkie completed a lengthy report (exhibit 7). She also testified at length. As already indicated, although Mr. Breton chose not to participate in the court ordered assessment, Dr. Wilkie completed her report on the basis of an extensive review of available documents and records.

[131] At the outset of her lengthy report, Dr. Wilkie provided a summary of her review of case file synopses, witness statements, general occurrence reports, arrest reports, probation orders, police records, pre-disposition reports, transcripts re reasons for judgment, transcripts re reasons on sentencing, video/audio recorded statement synopses, inmate incident reports. She also reviewed all available health records, records from Correctional Services Canada and provincial correction records.

[132] Dr. Joseph was the only other expert witness called (by the Crown). He did not provide a report. As above noted, he is a corrections psychiatrist. He was engaged in treating Mr. Breton over the past approximate five (5) years.

[133] I am satisfied, that overall, the records and documents reviewed by Dr. Wilkie were prepared by persons who were on the job, with knowledge of the process they were involved in and with a duty to record. I am satisfied that Dr. Wilkie took a “totality approach” in her assessment of all available information and as such was able to professionally complete her assessment.

[134] Dr. Wilkie was cross-examined at length. She was asked about “direct” versus “indirect” information. She responded by saying “direct information can be more reliable, yes, but not necessarily”. She stated: “No one piece of information should be taken in a vacuum”. She also indicated that had Mr. Breton chosen to participate in the assessment process, any information gleaned from him in meeting with her would have provided a further piece of relevant piece of information.

[135] In response to questions about information not referenced in her report regarding issues of family violence and Mr. Breton’s 1998 convictions as a youth Dr. Wilkie stated: “I can’t draw straight lines from one incident”. She also said: “No information should be taken in isolation”.

[136] While being questioned about Mr. Breton’s 1990 convictions in Fort Erie and other entries on his record, Dr. Wilkie acknowledged the absence of transcripts and that her review was reliant upon case file synopses and witness statements which were subject to potential accuracy frailties.

[137] It was suggested to Dr. Wilkie that she had overstated the facts by virtue of having relied on documents such as occurrence reports upon which little weight could be attributed. She did not agree and was not prepared to amend or alter any of her conclusions. This, in large part, was because of the holistic approach she took in absorbing the information.

[138] Dr. Wilkie was challenged repeatedly on the accuracy of her PCL-R scores and in particular items #5 (coning/manipulation), #9 (parasitic lifestyle) and #12 (early behavioural problems).

[139] The defence also suggested to Dr. Wilkie that the VRAG score was inaccurate because it was artificially increased by the erroneous PCL-R score.

[140] Dr. Wilkie essentially denied having made any error in Mr. Breton’s scoring. She indicated that many factors play a role in attributing a proper score, and that proper scoring is not simply based on a checklist.

[141] I would agree with the Crown submission that Dr. Wilkie took a nuanced and measured approach. She was alert to the frailties of the information she reviewed. She did admit to limitations. She did not deny the risk of their being errors in the records or documents. She also specifically admitted to an error in the VRAG score but also indicated that even incorporating a correction, the result still indicates that Mr. Breton remains assessed at high risk.

[142] Although Dr. Wilkie was the only psychiatrist to provide a report on this application, I have also considered the existence of an earlier report prepared by Dr. Valliant in 2013. Dr. Valliant is a psychologist. His report disclosed a lower PCL-R score of 18 out of 40. I agree with the Crown’s submission that Dr. Valliant’s report is dated and that there have been many additional entries to Mr. Breton’s institutional related records and criminal record since that time. Further, there is an absence of evidence verifying how Dr. Valliant’s score was arrive at. Also, Dr. Wilkie in responding to questions about Dr. Valliant’s report, expressed concerns because the report was solely based on interview input and a criminal record.

[143] As evidenced by Mr. Breton’s criminal record, institutional records and Dr. Wilkie’s report, Mr. Breton has a long history of violence and anti-social behaviours. Although he shows some insight toward his conduct and the need to take medication, he has (as indicated by Dr. Wilkie) a limited capacity for feeling remorse or empathy for others. Many incidents have been recorded in the numerous records and documents filed as exhibits. They cannot all be mentioned in these reasons. The following are included:

• On October 20, 2009, Mr. Breton was described by Dr. Gagnon (psychologist) as “a delinquent, cocky, high-risk offender with ingrained anti-social tendencies that even with ADHD medication and significant structure, would most likely reoffend”;
• On March 19, 2014 at Millhaven, he was assessed as requiring a high level of intervention to address his criminal behaviour. He was also said to have no remorse or empathy for his victims;
• In an assessment made January 30, 2015 regarding an involuntary transfer to Collins Bay, Mr. Breton was noted to have demonstrated a history of problematic institutional behaviour. Within a relatively short period of time, he had amassed 11 institutional incidents and 7 institutional charges;
• In February 2016, he was assessed at Collins Bay. In that record, he was described as demonstrating a requirement for a highly structured environment in which individual or group interaction would be subject to constant and direct supervision;
• On July 10, 2017, Mr. Breton was placed on a two-year probation order on charges of assault, breach of probation (X 2) and assault police. The order contained a condition that he not communicate with Serena Cloutier unless in the presence of an adult third person. Within less than five weeks and on August 15, 2017, he committed the predicate offence(s). Ms. Cloutier was the victim;
• A few days prior on August 11, 2017, Mr. Breton had become disruptive while attending at probation services. Police were called. He was arrested and kept in custody. The next day on August 12, 2017, he was released from WASH court. He was ordered not to communicate with Ms. Cloutier. On that very day, he met Ms. Cloutier at a local park and together they consumed illicit drugs;
• On March 12, 2019, Mr. Breton was convicted of the index offence(s);
• On June 10, 2019 a conviction was entered for assaulting a peace officer;
• November 14, 2019, a conviction was entered for uttering threats, breach of probation, causing a disturbance and mischief under $5000;
• The Crown provided a chart itemizing in-custody incidents pertaining to Mr. Breton all of which are not serious but the totality of which is demonstrative of his in-custody behaviour which was referenced by Dr. Wilkie in her report;
  • Federal sentence (2007-2009) – 13 incidents reported;
  • Federal sentence (2014-2016) – 47 incidents reported;
  • Provincial sentence(s) (1998-2020) – 61 incidents reported;
  • Nursing notes (2017-2021) -- +30 incidents reported including not relating to discussions about changes in medication dosage.

[144] The court must exercise caution with reference to weight placed on institutional records and documents (including police occurrences and witness statements). This evidence, however, taken overall is relevant in establishing pattern within the context of Mr. Breton’s behaviour and the likelihood of it continuing.

[145] I remain mindful that Mr. Breton faces many challenges associated with his upbringing including, untreated ADHD, complex disorder diagnoses and several problematic brain injuries. To use Dr. Wilkie’s expression, these issues from a prognosis perspective are difficult to parse out.

[146] On the evidence before me, taken as a whole, and for reasons above set out, I must find that the evidence overwhelmingly establishes that Mr. Breton’s aggressive and violent conduct will continue in the future.

[147] For all the above reasons, I am satisfied beyond a reasonable doubt that the requirements of s. 753(1)(a)(i) have been established in that:

1. Mr. Breton has engaged in a pattern of repetitive behaviour, including the predicate offence;
2. Such conduct shows a clear failure or inability to restrain his behaviour; and
3. There is a likelihood of him causing death or injury or severe psychological damage to others in the future as a result of his failure or inability to restrain his behaviour.

[148] I am also satisfied beyond a reasonable doubt for the above reasons that the requirements of s. 753(1)(a)(ii) have also been established on the evidence before me in that I find there is:

1. A pattern of persistent aggressive behaviour exists, including the predicate offence;
2. That shows a substantial degree of indifference on Mr. Breton’s part with respect to the reasonably foreseeable consequences to other persons of his behaviour.

[149] In conclusion, I am satisfied that Mr. Breton meets the criteria under both ss. 753(1)(a)(i) and (ii) of the Criminal Code. As a result of my finding, I must find Mr. Breton to be a dangerous offender.

8:2 Penalty

[150] Section 753(4.1) mandates imposition of an indeterminate sentence unless there is a reasonable expectation that a lesser sentence will adequately protect the public against the dangerous offender’s violent recidivism. In R. v. Straub, [2022] ONCA 47, decided on January 24, 2022 by the Ontario Court of Appeal, the following was stated:

“… The standard to be applied to the evidence adduced at the hearing is whether there is a reasonable expectation that a lesser measure will adequately protect the public against the offender’s violent recidivism. The standard is reasonable expectation, not reasonable possibility. The term “reasonable expectation” suggests a “likelihood”, “a belief that something would happen”, or “a confident belief, for good and sufficient reasons.

Treatability is a relevant factor at the penalty stage of dangerous offender proceedings but evidence of treatability must extend beyond speculative hope about successful treatment. The evidence must give some indication that the offender can be treated within an ascertainable time…

Manageability of a dangerous offender’s behaviour is also a factor to be considered at the penalty stage. On this issue, the following is relevant: evidence that the offender avoided treatment, failed to respond to or terminated treatment, breach court orders, lacked motivation, continued to be involved in high-risk conduct, had a serious personality disorder, and was a high risk to engage in violent recidivisim…

The nature and duration of a dangerous offender’s prior conduct may provide cogent evidence of how that offender would act in the future, given the opportunity to do so…Likewise the manageability of the offender under supervision in the community. ”

[151] Defence counsel have submitted the following (which is not an exhaustive list of all points discussed):

• Mr. Breton has expressed a willingness to work with mental health professionals for treatment and that this will reduce the degree of supervision he shall require;
• A structured supervision plan would focus on Mr. Breton’s primary risk factor; staying away from drugs;
• Mr. Breton’s success will be further enhanced if he stays away from Sudbury. His recognition of this need has been expressed to Mr. Chapelle;
• Mr. Breton’s custodial sentence (2 years less one day) should be followed by a three (3) year probation order with terms requiring him to consent to a community treatment order, after being discharged from St. Lawrence Valley Correctional Treatment Centre (SLVCTC -- a facility which is equipped to provide a therapeutic environment). Mr. Breton will be assisted throughout his sentence and as he enters the community by Mr. Chapelle;
• Mr. Breton has the support of his grandmother to whom he has expressed a commitment to do better. His grandmother recognizes that he has improved;
• The evidence of Dr. Joseph touches upon Mr. Breton’s treatability, motivation to improve and targets areas for treatment;
• There has been a decline in institutional misconduct and Mr. Breton wants to move away from his previous conduct and have the capacity to control his behaviour;
• Mr. Breton’s grandmother (Carmen Breton) testified that he is motivated to change and improve his life. Importantly, she indicated to have detected a dramatic improvement in his behaviour over the last year.

[152] In defence counsel’s submission, Mr. Breton has compelling prospects of treatment and has been improving since receiving treatment by Dr. Joseph and that Mr. Breton’s treatment, has in the past, been limited largely because of lack of resources in the province and federal institutions.

[153] As already noted, the only psychiatric evidence provided for my consideration was the evidence of Dr. Wilkie and Dr. Joseph. Both were called by the Crown and testified. Dr. Wilkie provided a detailed report. Mr. Breton refused to participate in the assessment. This created a limitation well-identified by Dr. Wilkie, however, in her professional opinion she was able to complete the full assessment and provide an opinion based on the extensive information at her disposal.

[154] Mr. Breton completed grade 10 at Fort Erie High School. He did not have a positive relationship with his stepfather. He left home at an early age. He started using drugs when he was a teenager. The evidence does not disclose Mr. Breton ever having had long-term employment. He does not appear to have family support other than from his grandmother. His out-of-custody history has involved association with persons involved in the drug culture. He has been diagnosed with substance use disorder as well as ADHD, anti-social and borderline personality disorders and acquired brain injuries.

[155] Mr. Breton has been sentenced to two (2) federal penitentiary terms. He has amassed a not insignificant record and has spent prolonged portions of his adult life in custody. He has also amassed a significant inventory of misconduct reports.

[156] According to Dr. Wilkie, Mr. Breton’s deficits will have a significant impact on his ability to engage in and respond to treatment interventions. She also indicated that generally individuals with anti-social disorders and more psychopathic traits scoring 25 or higher on the PCL-R show a less robust response to treatment and supervision with a greater likelihood of refusing treatment or dropping out.

[157] According to Dr. Wilkie, substance abuse offenders with concurrent anti-social personality disorders do not benefit as much from treatment at least with respect to its impact on recidivism.

[158] Dr. Wilkie concluded that implementation of a comprehensive multi-modal treatment and management plan (which is what would be required) with engagements sustained over the long-term (which is also what would be required) would be challenging from a psychiatric perspective. It is also her view, based on all available information, that there is no reasonable expectation that risks posed by Mr. Breton could be managed in the community.

[159] In terms of management in the community, should this be determined to be the outcome, Dr. Wilkie highlighted areas where intervention could be attempted in order to manage risk in the community. This would include comprehensive assessments, multiple intensive programs and intensive supervision upon any eventual release.

[160] As highlighted in the Crown’s submission, Mr. Breton completed several treatment programs while incarcerated. These are identified as follows:

• Six session anger management programs at the Sudbury Jail in 2013 (pre-sentence report, 2013);
• Interdisciplinary Mental Health Team, Millhaven Institution/Collins Bay Institution – April 2014 to June 2016;
• Aboriginal Offender Substance Abuse Program – April 10 – June 11, 2015;
• Segregation Interventions Program, including one on one services – November 2015 to June 2016;
• By April 10, 2019, he had completed two sessions of the Change is a Choice: Connections program (Social Work case notes, SDJ)

[161] There is little evidence that Mr. Breton’s behaviour changed during the currency or having completed all of the above-noted programs. There is evidence, however, that he returned to his pattern of offensive conduct both while in custody and in the community (see index offences).

[162] The predicate offence(s) is demonstrative of Mr. Breton’s inability to curtail his bad conduct. When charged, he was in breach of two separate probation orders made on September 28, 2016 and July 10, 2017. The predicate offence(s) occurred August 10, 2017 within approximately 5 weeks of the last probation order. It is noteworthy that on the same day of his release, August 12, 2017, he breached his recognizance of bail.

[163] Several convictions have been added to Mr. Breton’s record since being found guilty of the predicate offence(s) on March 12, 2019. Following conclusion of the trial and pending submissions on sentencing an incident occurred at the Sudbury District Jail on April 29, 2022. Although I have identified that an occurrence took place, I have chosen not to attribute any weight on the occurrence reports for purposes of these reasons.

[164] Dr. Wilkie indicated that as at the time she was preparing her report, it was unknown whether Mr. Breton was willing to attend programs that may be recommended to him. She also stipulated that Mr. Breton has re-offended on multiple occasions during periods of supervision, returning quickly to substance use, criminal activity and destabilizing environments once in the community. In her view, even during periods of relatively intensive treatment, he continued to evidence behavioural instability albeit he was noted to generally be able to recover more quickly to his baseline.

[165] Dr. Wilkie also factored in Mr. Breton’s multiple head injuries identifying these as possibly having affected his behavioural instability.

[166] Dr. Joseph is to be commended for his efforts in treating Mr. Breton. By all accounts he has been patient with Mr. Breton and has managed to bring him to a point where he is calmer when they meet. Dr. Joseph indicated that Mr. Breton needs constant treatment. Mr. Breton is engaged in discussing his treatment (especially with reference to drug dosages). Dr. Joseph testified that ideally, Mr. Breton may do better if treated in a therapeutic environment. Dr. Joseph also stated that when visiting Mr. Breton, he does not fear for his safety.

[167] Dr. Joseph emphasized that Mr. Breton must stay away from drugs. He did confirm Mr. Breton has stabilized now that he is back on treatment.

[168] Defence counsel suggested that Mr. Breton is now motivated for treatment. There is little evidence, however, upon which to support this. Mr. Breton’s interactions with Dr. Joseph were in the context of patient/physician relationship. The evidence discloses that Mr. Breton has a history of trying to convince medical providers to increase the dosage of his medication or change the type of medication prescribed.

[169] The fact that Mr. Breton has been engaged in several programs, confirms that he has the ability to engage in treatment. The treatment programs, however, in a highly structured environment. In Dr. Wilkie’s opinion (which I accept) his ability to utilize any acquired skills from having engaged in treatment programs has not been evident in terms of reducing his risk of re-offending.

[170] There is no cogent or satisfactory evidence to establish that Mr. Breton is motivated to engage in treatment. Mr. Chapelle interviewed Mr. Breton several times over the telephone. He did his best to put a positive spin on topics discussed with Mr. Breton. He was able to indicate that his understanding from his discussions with Mr. Breton was that Mr. Breton was motivated. His responses were somewhat subtle. In cross-examination, he stated: “I turned a corner, its not black and white”. The implication was that if motivated, Mr. Breton could also turn a corner. Mr. Chapelle did say that Mr. Breton showed “potential” when he spoke with him and in some sense, he detected an element of legitimacy regarding motivation on Mr. Breton’s part.

[171] Mr. Breton’s grandmother also indicated that Mr. Breton was motivated to change and improve his life. Understandably, Ms. Breton indicated that she cared for her grandson and wanted what was best for him. Her evidence was empathetic. She was mindful that her grandson was recently doing better. In that context, she sensed him to be more motivated. Her testimony depicted an element of hope on her grandson’s behalf and she was not dis-impressed by what she perceived as his current motivation to do better.

[172] Expert opinion evidence about an offender’s treatability plays an important role in the determination of whether an offender should be declared dangerous and if so, to the issue of whether an indeterminate sentence or a determinate sentence should be imposed.

[173] In her evidence, Dr. Wilkie concluded Mr. Breton’s prognosis or successful treatment to be poor in comparison to other offenders. She also indicated that there is no reasonable expectation that Mr. Breton’s risk could be managed in the community.

[174] Dr. Wilkie’s evidence was not contradicted by Dr. Joseph who testified as Mr. Breton’s treating psychiatrist. As earlier indicated, Dr. Wilkie was aware of potential factual frailties in the documentation she reviewed. She was extensively cross-examined. She successfully ratified the accuracy of her assessment and findings.

[175] Having considered the totality of the evidence and having attributed proper weight to all documents and reports entered as exhibits, I find as follows:

1. There is little evidence in support of treatability upon which reliance may be placed that is more than an expression of speculative hope;
2. There is insufficient evidence to establish that Mr. Breton can be treated within a fixed period of time;
3. There is no cogent or reliable evidence that Mr. Breton’s aggressive or violent behaviour can be managed or controlled.

[176] The suggestion that Mr. Breton will respond to treatment remains speculative. Apart from some general evidence touching upon the availability of institutional programming and treatment in the community, there is an absence of evidence about any detailed workable support plan should Mr. Breton be released in the community.

[177] There is certainly reason to express sympathy toward Mr. Breton. He needs ongoing help. He has endured many challenges. His psychiatric problems are complex, he has sustained head trauma the consequence of which may pose additional difficulties to treatment and manageability, and he has been diagnosed with personality disorders and a drug addiction disorder.

[178] It is my obligation to arrive at a determination consistent with the evidence. The evidence, in all respects, supports the inescapable conclusion that there is no reasonable expectation that a lesser measure than an indeterminate sentence will adequately protect the public.

[179] While Mr. Breton has made modest recent progress in his dealings with Dr. Joseph and has shown willingness to co-operate about his medication, this does not amount to evidence that he is willing or capable in any sustainable way of engaging in a long-term treatment plan. Further, I am not able to conclude that Mr. Breton will become manageable simply because new treatment options may become available to him.

[180] There may be hope and optimism for Mr. Breton in the context of future therapeutic treatment regimes, but I remind myself that the court’s overriding aim is to protect the public. At both stages of this application, I have considered all of the evidence including Mr. Breton’s risk factors, the probability of recidivism and the prospect of rehabilitation.

9: CONCLUSION

[181] The Crown’s application to have Mr. Breton declared a dangerous offender is allowed. An indeterminate sentence of imprisonment is imposed pursuant to ss. 753(4) and (4.1).

[182] I wish to point out that an indeterminate sentence is not equivalent of a life sentence. Mr. Breton recognizes that he needs help to deal with his challenging issues. He has already taken some small steps in the right direction. If he becomes serious about his desire to change his life, he will take advantage of the programs available to him within the institutional setting.

[183] With the assistance of health service providers and programming, Mr. Breton will hopefully be able to govern his behaviour while in custody and demonstrate that he is capable of doing better. Mr. Breton will become eligible to become released into the community if his risk factor reaches a manageable level.

[184] The onus shall rest on Mr. Breton to demonstrate that he can make changes necessary to eventually be considered for release in the community.

Released: May 17, 2022 Signed: Justice Randall W. Lalande