R. v. Clarke, 2012 ONSC 2776

COURT FILE NO.: 4-430/09

DATE: 20120615

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N :

HER MAJESTY THE QUEEN – and – ANDRE CLARKE

Christine Pirraglia and Melisa Montemurro, for the Crown Sal Caramanna and Fariborz Davoudi, for the Accused HEARD: April 10-18, 2012

M. DAMBROT J. :

[ 1 ] The life of Felicia Hosany came to a sudden and horrific end on February 28, 2008 when she was callously and brutally killed by two thugs who entered her flower store with the intention of robbing her. Andre Clarke was one of these two thugs. Nevin Joseph was the other.

[ 2 ] Andre Clarke was tried before me, with a jury, on an indictment alleging that he committed the first degree murder of Felicia Hosany as well as the offences of unlawful confinement, robbery and use of an imitation firearm, all in connection with these tragic events. The jury found him guilty of manslaughter, robbery, unlawful confinement and using an imitation firearm. It then became my duty to impose sentence.

[ 3 ] Mr. Joseph was called as a Crown witness at the trial of Mr. Clarke. Subsequent to that trial, Mr. Joseph pleaded guilty before me to one count of manslaughter in relation to the events of February 28, 2008, and three counts of robbery in relation to offences committed with Mr. Clarke on February 1, 2008, February 20, 2008 and February 27, 2008. I imposed a 12½ year total sentence on him, less 6½ years credit for approximately 3 ¼ years of pre-sentence custody (see R. v. Joseph, 2011 ONSC 4306, [2011] O.J. No. 3637). I indicated that I would have been inclined to impose a sentence of 10 years for the manslaughter, and 2 ½ years consecutive for each of the three other robberies, taking into account the mitigating circumstances, including: the fact that the offender is still a relatively young man; that he has no criminal record; that he is remorseful; that he confessed his guilt at an early stage and cooperated with the Crown by testifying against his co-accused, at significant risk to his well-being in prison; that he played a secondary role in the offences; that while he participated in the acts that resulted in the death of Ms. Hosany, it was Mr. Clarke who finally taped her mouth and nose in a manner that caused her to suffocate; and that he will be deported upon his release from imprisonment.

[ 4 ] But bearing in mind the principle of totality, and remembering as well that the usual approach to consecutive and concurrent sentence may give way to the totality principle, instead I imposed a sentence of ten years for the manslaughter, and 2 ½ years concurrent to each other but consecutive to the manslaughter sentence for each of the three robberies.

[ 5 ] Prior to the imposition of sentence on Mr. Clarke, the Crown brought an application pursuant to s. 752.1 of the Criminal Code, R.S.C. 1985, c. C-46 (“the Code”) seeking an order remanding the offender to the custody of Dr. Treena Wilkie at the Centre for Addiction and Mental Health (“CAMH”) to perform an assessment for use in an application to have Mr. Clarke declared a dangerous offender or a long-term offender. I granted the order, with reasons to follow. It is sufficient to say that I was satisfied that the offender had been convicted of serious personal injury offences, and that there were reasonable grounds to believe that he might be found to be a dangerous offender. More specifically, I concluded that there were reasonable grounds to believe that he might constitute a threat to the life, safety or physical well-being of other persons based on: (i) a pattern of repetitive behaviour by the offender, including these offences, showing a failure to restrain his behaviour, and a likelihood of his causing death or injury to other persons through a failure in the future to restrain his behaviour; and (ii) a pattern of persistent aggressive behaviour by the offender, including these offences, showing a substantial degree of indifference on his part respecting the reasonably foreseeable consequences to others of his behaviour. I reached these conclusions based on a review of the evidence led at this trial and an examination of the details of his criminal record, which includes crimes of dishonesty, crimes of violence, weapons offences and offences against the administration of justice.

[ 6 ] I should also make it clear that I took into consideration evidence of the offender’s involvement in three robberies in 2008, prior to this one, that was led at this trial as similar fact evidence. While Mr. Clarke has not been convicted in respect of these three robberies, I am satisfied beyond a reasonable doubt that he is guilty of robbery, forcible confinement, use of an imitation firearm, disguise with intent and possession of property obtained by crime in respect of these robberies. It is well-settled that the dangerous offender provisions of the Code contemplate the admissibility of evidence of prior misconduct, including matters that were not the subject of criminal charges, if the evidence is relevant, as this evidence clearly is. It is relevant to assist in establishing both the requisite pattern of repetitive behaviour by the offender in s. 753(1)(a)(i) of the Code and the requisite pattern of persistent aggressive behaviour by the offender in s. 753(1)(a)(ii). (See R. v. C.L.S. (1999), 1999 2984 (ON CA), 133 C.C.C. (3d) 467 at para. 26 (Ont. C.A.) and R. v. Lewis (1984), 1984 2027 (ON CA), 12 C.C.C. (3d) 353 at para. 14 (Ont. C.A.).) I will provide details of these offences later in this judgment.

[ 7 ] After Dr. Wilkie’s report was delivered, the Crown made an application pursuant to s. 753(1) of the Code to have Mr. Clarke declared a dangerous offender. I note that since the offences at issue occurred before July 2, 2008, the authority to declare him a dangerous offender resides in the former s. 753(1) of the Code. (See R. v. Bedard (2009), 2009 ONCA 678, 247 C.C.C. (3d) 275 at para. 90 (Ont. C.A.).)

THE EVIDENCE LED AT TRIAL

[ 8 ] I propose to summarize the evidence led at Mr. Clarke’s trial, relating both to the offences of which he was convicted, and to the earlier robberies. As I have noted, this evidence was introduced as similar fact evidence, but is also relevant and admissible in relation to the dangerous offender application. After I complete this summary, I will outline what I consider to be the findings of fact necessarily encompassed by the verdict, and my own findings of fact. It will be apparent that my summary of the evidence is similar to the summary of the evidence that may be found in my reasons for sentence in respect of Mr. Joseph. That should not be surprising. Counsel at that hearing agreed that the evidence at Mr. Clarkes’s trial was incorporated into Mr. Joseph’s sentence hearing, and in fact, it formed the predominate source of my fact-finding in that hearing.

[ 9 ] I will leave Mr. Clarke’s evidence out of my summary. He denied any involvement in any of the robberies, including the robbery and killing of Ms. Hosany. The jury’s verdict necessarily precludes any possibility that they believed the offender’s denial of involvement in the robbery and killing of Ms. Hosany, or that his evidence raised any reasonable doubt in any of their minds. While the verdict does not necessarily mean that the offender also participated in the three earlier robberies, I have absolutely no doubt that he did. I will explain why I reach this conclusion after I review the evidence.

[ 10 ] The last robbery was clearly the last in a string of robberies perpetrated by the same two individuals. Everything about them points in this direction: the descriptions of the perpetrators; the disguises; the weapons; the modus operandi, in particular the taping of the victims; and the fact that there was a physical match between a torn end of a piece of duct tape taken from the Tulip Florist complainant’s head on February 27, 2008, and the torn end of a piece of duct tape taken from the left wrist of Felicia Hosany at the Flowers by Felicia robbery on February 28, 2008, which led an expert witness to opine that these two pieces of tape were once joined.

The Robbery and Killing of Felicia Hosany on February 28, 2008

[ 11 ] On February 28, 2008, Ms. Hosany’s last customers left her shop at about 6:45 p.m., leaving her alone with her dog. A short time later, Mr. Joseph and Mr. Clarke entered the store masked, wearing gloves, and brandishing convincing imitation firearms. Mr. Clarke quickly grabbed a hold of Ms. Hosany, and the two men started walking her towards the front of the store, guns in hand. When the dog barked, Mr. Clarke told her to shut her dog up. She told the dog to be quiet. Mr. Clarke then spotted the washroom and put her inside it. He then told Mr. Joseph to tie her up, while he went to the front. After Ms. Hosany was seated on something, Mr. Joseph proceeded to tie her ankles and wrists, and cover her eyes, with the duct tape – the same duct tape that he had used in a robbery the night before. He tied her two or three times around her ankles, over and around her lap and wrists, as well as her eyes, perhaps twice each. She asked him “Why?” and he replied, “Be quiet we’re not here to hurt you.” Mr. Joseph did not tape her mouth.

[ 12 ] Mr. Clarke then came to the washroom with five credit cards, and asked for the PIN numbers. When she was reluctant, he threatened to kill her dog. She gave a number, and Mr. Joseph wrote it down. When Ms. Hosany said that all the cards had the same PIN number, Mr. Clarke got angry because he thought she was lying, and threatened to kill the dog again. Ms. Hosany became upset, pulled off some of the tape, lifted her arms, stood up and pushed Mr. Joseph’s chest, knocking him to the floor, and started screaming. Mr. Clarke came into the bathroom, grabbed Ms. Hosany, took hold of her sweater and punched her twice on the side of the head. She began falling, ending up leaning against the wall. Mr. Clarke then tied her up again and pulled her close to the racks in the bathroom. He tied duct tape around her arms and legs, and tied her to the racks with some rope that was in the washroom. When Ms. Hosany began asking to be left alone, Mr. Clarke tried to put a white rag from the washroom into her mouth. At this point she was lying on the floor and kept spitting the rag out. Mr. Clarke told her to shut up, and told Mr. Joseph to pick up the credit cards on the floor. The two men also took $3,830 that had been in Ms. Hosany’s purse. When Mr. Clarke was arrested on April 15, 2008, the police found $3,000 in cash secreted in his bedroom.

[ 13 ] According to evidence given by Mr. Joseph, and there is no evidence to the contrary, after he picked up the credit cards, Mr. Joseph thought he heard noise, and ran out to the car. Mr. Joseph waited in the car, where Mr. Clarke joined him a few minutes later. Mr. Joseph asked if the woman was O.K., and Mr. Clarke replied, “Yes, she’s O.K., I just tied her up.” He had in fact tied her up, and tightly duct taped up her entire face, covering her mouth and nose, as a result of which she suffocated.

[ 14 ] The two men then proceeded to an ATM machine two minutes east on Sheppard Avenue. They put their masks back on, and Mr. Clarke tried to make a withdrawal, but the machine was not working.

[ 15 ] Ms. Hosany usually closed her store at 7:00 p.m. and stayed on to do paperwork. Her husband called her several times that evening, but got no answer. Finally, he decided to drive to her shop. He arrived at the store shortly after 9:00 p.m. When he got there he noticed that the shelves in the front of the store had been moved. He then discovered his wife’s dead body, bound and taped, lying on the bathroom floor. Mr. Hosany saw a white towel covering his wife’s face. When he pulled it away, he saw duct tape on her face. He immediately grabbed his cell phone and called 911.

[ 16 ] Within minutes, firefighters arrived on the scene. The first firefighter who entered the bathroom found the body of Ms. Hosany lying on the floor, face down, with her hands tied together above her head by strong packaging twine and duct tape that circled her wrists very tightly two or three times, palms facing each other, and attached to shelving by twine and duct tape as well. Her legs were pointing to the door. He observed duct tape around her face, from below the lips to above the nose, covering both, a minimum of 2.5” in width, and circling her head at least twice, and probably more times. The tape was tight around her face, with her hair covering her eyes. The twine inside the duct tape around her wrists extended to her ankles and to the shelving. Duct tape also circled her ankles and calves tightly a couple of times.

[ 17 ] The next person into the bathroom was a paramedic, who also observed the body of Ms. Hosany face down on the floor, with her head and arms pressed to the back of the door. She said that the tape over Ms. Hosany’s mouth covered a good portion of her face, extending about five or six inches, and went up to her eyes. She said that there was no exposure to her airway. There were no gaps in the tape, which fully encircled Ms. Hosany’s head, and the tape was very snug. She could only insert her baby finger under the tape to permit her to start cutting it. The tape was wrapped three or four times around Ms. Hosany’s head. Once she removed the tape, she said that Ms. Hosany’s face was very bluish-purple. The pathologist who conducted the autopsy of Ms. Hosany found injuries to her face, including bruising and damage to her lips, which he concluded were largely caused by compression of the face by duct tape. The tape exerted enough pressure on her face to cause injury.

[ 18 ] As I have noted, Mr. Joseph was called as a witness by the Crown at the trial of Mr. Clarke. He gave evidence implicating both of them in the offences alleged against Mr. Clarke, as well as three robberies that preceded this offence. He gave this evidence voluntarily, and without securing any plea agreement from the Crown. The additional robbery charges are part of the full story of the killing of Ms. Hosany. I will complete that story now.

The Henry’s Robbery on February 1, 2008

[ 19 ] Mr. Joseph was born in St. Lucia, and came to Canada as a visitor in 2005 and resided with his brother. He overstayed his visit, and has no status in Canada. He met Mr. Clarke in June 2007 while working in construction. They became friends. Mr. Joseph testified that soon after they became friends, Mr. Clarke began talking about robberies. Mr. Joseph was working, and did not really want to become involved, but ultimately agreed to participate.

[ 20 ] According to Mr. Joseph, a week or so before the first robbery, Mr. Clarke bought two 6” to 7” long plastic guns, and they spray painted them.

[ 21 ] On February 1, 2008, at about 10:45 a.m., the two men dressed in dark clothing and set out to execute their plan to rob a Rogers video store, but found the store closed. Instead, they robbed a Henry’s camera store. They parked their car nearby, put on black gloves and masks supplied by Mr. Clarke, drew their guns and entered the store. Several employees and a couple of customers were present. Mr. Clarke yelled at them to get down. Mr. Joseph stood over one employee, while Mr. Clarke walked another to the back of the store. Mr. Joseph then began putting merchandise into large gym bags, as did Mr. Clarke. After five or ten minutes, when their bags were full, they made their escape.

[ 22 ] Eva Baglieri, an employee in the store that day, testified at trial. She confirmed the accuracy of security camera videos of the robbery, which in turn confirmed much of the evidence of Mr. Joseph about the robbery, save for his evidence that he participated in this robbery reluctantly. The video shows him to be in disguise, walking around the store and using his gun to ensure that those present remained in terror, some cowering on the floor, others obediently assisting the robbers, all without hesitation or apparent reluctance on his part. Ms. Baglieri mentioned that while the two men were collecting cameras, they swore a lot, and used the word “bitch” frequently. She confirmed that during the incident, the taller man, undoubtedly Mr. Clarke, gave orders to the shorter man, and appeared to be the leader. When they left, they took several cameras and some money from the store safe.

[ 23 ] In all, 31 cameras were stolen from the store, with a value of $34,249.49. When Mr. Clarke was arrested, a blue cloth suitcase was seized in his residence. It contained eight brand new Canon cameras, six in boxes and two display models. Two of the cameras bore serial numbers that matched the serial numbers of cameras taken from Henry’s. Mr. Joseph testified that Mr. Clarke gave him six of the cameras, and he was able to sell one or two of them.

The Beauty Collection Robbery on February 20, 2008

[ 24 ] On February 20, 2008, a few weeks after the Henry’s robbery, the two men robbed a beauty supply store called Beauty Collection. According to Mr. Joseph, they chose this shop because Mr. Clarke said he wanted to open a store in a flea market to sell hair and beauty supplies. He said that he had been looking at Beauty Collection for a long time, knew who worked there, and said that it would be easy.

[ 25 ] On the day of the robbery, the two men drove to the store in the morning, and parked in back of the store on a side street. They stood on the sidewalk in front of the store for a few minutes to see what was going on inside. Mr. Clarke told Mr. Joseph that they would tie up the people and take the merchandise. Mr. Joseph was to take control of the people in the store while Mr. Clarke took the supplies he wanted. After observing a female employee leave, they went inside wearing the same gloves and masks as before, and carrying the same imitation firearms as they had at Henry’s.

[ 26 ] When they got inside, Mr. Clarke grabbed a male employee and forced him to the floor. He then began tying him up with duct tape and rope. He tied his legs and arms, and put tape around his eyes. While doing this, Mr. Clarke told Mr. Joseph to bring over the man’s jacket. Mr. Clarke removed his credit cards and asked for the PIN numbers. Mr. Joseph wrote the PIN numbers down, and put them in his pocket.

[ 27 ] Mr. Clarke then told Mr. Joseph to look for the most expensive hair extensions in the store. As he began to do so, the female employee who had left earlier returned to the store. Mr. Clarke brought her to the back of the store and told Mr. Joseph to tie her up. Mr. Joseph wrapped duct tape around her wrists, arms, legs and eyes.

[ 28 ] A female customer then entered the store, followed by a second one. The second woman began crying. Mr. Clarke directed Mr. Joseph to tie them up as well, which he did, using rope and duct tape. He roped all three women together. He also removed their cell phones, wallets and purses. Meanwhile, Mr. Clarke was filling bags and boxes with hair extensions. When he was done, Mr. Clarke pushed the victims into a storage room and closed the door. The two men left with their haul through a back door and drove away. They went to an ATM machine and both tried to withdraw money with the stolen cards, but they failed.

[ 29 ] Ho Han and Karen John, the two employees of Beauty Collection who were robbed, testified about the robbery and confirmed much of what Mr. Joseph said. I will summarize some of their evidence.

[ 30 ] Mr. Han, who was the purchasing manager at the store, said that at about 9:35 or 9:40 a.m., two men entered the store wearing dark gloves, black clothing, and black masks that covered their faces and heads except for their eyes. The taller man (Mr. Clarke) pointed a black gun about the length of a palm at him and seated him on the floor. Soon after, he was taken to the back of the store where he was seated again. There one of the men (Mr. Joseph) bound his wrists snugly with his palms facing each other with yellow string, and also bound his waist and legs together. Mr. Joseph asked Mr. Han where his wallet was, and then placed gray duct tape over his eyes, around his head and over his mouth. It was not tightly bound, and Mr. Han could see downward through a gap in the tape.

[ 31 ] One of the men then lifted the tape over Mr. Han’s eyes, showed him some credit cards, put his gun to Mr. Han’s head and asked for PIN numbers. He said that if Mr. Han gave him a wrong PIN number he would kill him. Mr. Han gave them to him.

[ 32 ] One of the men asked Mr. Han for the store keys, and he told him where they were. He was then taken to a storage room, and heard the door of the store open and shut. After the two men left, it took Mr. Han about 20 minutes to free himself. When he tried calling 911, he discovered that the phone had no dial tone. It had been working prior to the robbery.

[ 33 ] The two men took Mr. Han’s wallet, which contained $450, a credit card, a debit card and a library card.

[ 34 ] Karen John testified that she left the store at about 9:40 a.m. When she left, she saw two men in black clothes standing two doors down. One of them had a back pack. When she returned ten minutes later, she noticed that the store security cameras had been pulled down. When she entered, a masked black man (Mr. Clarke) pointed a black gun at her face and pushed her to the back storage room. When she got to the storage room, she saw a woman on her knees crying. She took her hand and comforted her. She did not see Mr. Han. A second man (Mr. Joseph) appeared, tied her mouth tightly with duct tape wound two or three times around her head, and tied her wrists together loosely with duct tape. He tied the second woman the same way, and then tied her and the second woman together with yellow string around their waists. They were on their knees side by side.

[ 35 ] A second customer came in and her mouth and hands were tied with duct tape in the same fashion. After a while, one of the men approached them and pushed them by the shoulders into a washroom, closed the door and turned out the lights. Probably five to seven minutes later, she heard the back door open and close. Three minutes later, Mr. Han opened the washroom door, and they were able to slide out of the string and help each other remove the tape.

[ 36 ] Ms. John said that the two men ransacked the store.

[ 37 ] Three bags containing a total of 125 packages of hair weaves were recovered from Mr. Clarke’s residence, as was a further box of hair weaves. Ms. John was able to identify the box of weaves recovered by the police as a box of weaves stolen from the store that morning. She said that the hair weaves the men took each cost, on average, from $100 to $180.

The Tulip Florist Robbery on February 27, 2008

[ 38 ] After the Beauty Collection robbery, Mr. Clarke told Mr. Joseph that he wanted to rob Tulip Florist, a flower shop at 7398 Yonge Street, just north of Steeles Avenue, on Valentine’s Day. This robbery was delayed, but finally took place on February 27, 2008. Mr. Clarke told Mr. Joseph that they would take credit cards and PIN numbers, and see if they could get money as well.

[ 39 ] Mr. Joseph said that they parked across the street from the store, and waited about 20 minutes because it was busy. When they finally entered the store, they were wearing the same masks and gloves and were brandishing the same guns as before. A woman was behind the counter. That woman was Shahla Hassanvaly, the owner of the shop. Mr. Clarke grabbed her, put her in a small back room and seated her on a bucket. Mr. Joseph tied her up. He tied her ankles, wrists, legs and eyes with duct tape. When she complained that it was too tight, Mr. Joseph loosened it. When she asked why they were doing this, he replied that they were not there to hurt her.

[ 40 ] Mr. Clarke returned from the front of the store and asked for the woman’s wallet and credit card. When she said that she did not have any credit cards, he accused her of lying and kept asking for them in an angry voice. She said that she had left them at home. Finally Mr. Joseph duct taped her mouth and they left.

[ 41 ] According to Mr. Joseph, Mr. Clarke took $80 and a small camera from the store.

[ 42 ] On the way home from this robbery, the two men planned their next one.

[ 43 ] Shahla Hassanvaly testified that she was alone in her store at 8:45 p.m. on February 27, 2008, when two masked men wearing black jackets and masks and carrying black guns maybe 10” to 12” long entered the store. One of the men (Mr. Clarke) pointed his gun in her face, grabbed her by the shoulder, walked her to the back of the store and closed the back door. He then brought her to the front of the store and asked her to lie down on the floor.

[ 44 ] The second man (Mr. Joseph) was near Ms. Hassanvaly at that point, while the taller one was turning off the store lights and the store open sign. She refused to lie down, saying that it was too dirty. She was then taken to the flower cooler where Mr. Joseph told her to sit on a bucket, and began taping her with gray duct tape. He taped her hands together, and then taped them to her knees. He also taped her eyes, mouth and feet. He broke the pieces of tape off the roll. The tape around Ms. Hassanvaly’s eyes and mouth circled her head, and was neither loose nor tight. She was still able to talk. Mr. Clarke asked Mr. Joseph to ask her where her credit cards were, which he did. She told him that they were not in the store. Mr. Clarke replied, “Don’t give me bullshit.” He then told her, “We’re not going to shoot you.”

[ 45 ] Ms. Hassanvaly remained in the cooler for about ten minutes. When she came out, the men were gone. She was able to untie herself enough to open the back door and call for help. People came in and untied her, and called the police. The two men took a digital camera, and $300 to $500 that had been in the cash register. In the course of the robbery, they disabled the telephone.

[ 46 ] Although I will deal with the credibility of Mr. Joseph’s account of the killing of Ms. Hosany and the commission of the three earlier robberies under the next heading, I will say immediately that to the small extent that Ms. Hassanvaly’s account of the Tulip Florist robbery differs from Mr. Joseph’s account, I prefer and accept her evidence.

FINDINGS OF FACT IN RELATION TO THE OFFENCES

[ 47 ] There are three factual issues of significance to the determination of the appropriate sentence to be imposed on Mr. Clarke that are not resolved by the jury’s verdict. These are:

1. Did Mr. Clarke cause the death of Ms. Hosany by his own acts, or as a party to the acts of Mr. Joseph?

2. What was Mr. Clarke’s state of mind in relation to the killing of Ms. Hosany?

3. Did Mr. Clarke participate in the three earlier robberies?

[ 48 ] I will deal with each of these issues in turn.

1. Did Mr. Clarke cause the death of Ms. Hosany by his own acts?

[ 49 ] The only direct evidence that casts light on who taped the face of Ms. Hosany and caused her death was the evidence of Mr. Joseph. Based on his evidence, the inescapable conclusion is that it was Mr. Clarke who directly caused the death of Ms. Hosany. But the jury’s verdict leaves open a different possibility. In my charge, when discussing the question whether Mr. Clarke caused the death of Felicia Hosany, one of the elements of murder (and, of course, manslaughter) in this case, I told the jury:

But I should explain something to you. Mr. Clarke does not need to have done all of the things to Ms. Hosany that caused her death to be responsible for causing her death. If he did some of them, while Mr. Joseph did some of them, they could both be responsible for causing her death, so long as they each knew the nature of what was being done to her. And even if Mr. Clarke did not directly do any of the acts that caused her death himself, it is still possible for him to be responsible for causing her death, in the following two circumstances. First, if he directed Mr. Joseph to do those acts, intending that he do them, he would be responsible for causing Ms. Hosany’s death. And second, if he did something else for the purpose of assisting Mr. Joseph to do those acts, knowing the nature of what Mr. Joseph was doing, then he would also be responsible for causing her death. If Mr. Clarke did not do any of the things that I have just discussed, then of course he is not responsible for causing her death.

[ 50 ] As a result, I am left to determine whether the evidence satisfies me beyond a reasonable doubt that Mr. Clarke did the acts that caused the death of Ms. Hosany. I have absolutely no doubt that he did. I am satisfied beyond a reasonable doubt that the manner in which she was taped and tied by Mr. Clarke, the position she was left in by Mr. Clarke, and the place she was left in by Mr. Clarke resulted in her death by suffocation.

[ 51 ] I reach this conclusion because I believe Mr. Joseph’s account of this event, because I consider his account for the most part to be reliable, and because there is a great deal of other evidence that confirms his evidence. By way of example, I refer to t he cell phone records for Mr. Clarke’s cell phone on February 28, 2008, shortly after the robbery at Flowers by Felicia, viewed in conjunction with the Telus tower locations and the ATM records and video recording.

[ 52 ] It was established in the evidence that the robbery at Ms. Hosany’s shop must have taken place after 6:45 p.m., when Erica Colyer and her mother left the store, and probably shortly before 7:22 p.m., when two masked men tried to take $500 out of Ms. Hosany’s account with her stolen credit card at an ATM only 1.3 km from the flower store. The taller man appears to have a cell phone in his hand.

[ 53 ] The cell phone records reveal that at 7:23 and 59 seconds, about thirty seconds after the completion of the attempted withdrawal of funds from Ms. Hosany’s account, a call was made to Mr. Clarke’s cell phone. The call was transmitted to his cell phone from tower 0193, which is 0.3 km east of the ATM.

[ 54 ] Of course, Mr. Clarke testified to an entirely different explanation for these cell phone records. He said that he loaned his car to Mr. Joseph that evening, and left his cell phone in it. His cell phone was with Mr. Joseph at the time of the robbery, but he wasn’t. This explanation is a handy contrivance, and is utterly unworthy of belief.

[ 55 ] There is also the evidence of the $3,000 in cash secreted in Mr. Clarke’s bedroom, found when he was arrested on April 15, 2008. This amount of money is similar to the amount of money apparently taken from Flowers by Felicia. Of course, Mr. Clarke said that he was merely holding it for Mr. Joseph. Once again, this explanation is a handy contrivance, and is utterly unworthy of belief.

[ 56 ] In addition, the evidence independent of Mr. Joseph’s evidence that implicates Mr. Clarke in the three earlier robberies provides confirmation of Mr. Joseph's evidence implicating Mr. Clarke in the robbery of Flowers by Felicia. I will not outline this line of reasoning in detail, but its contours may be found in my charge to the jury.

[ 57 ] I find as a fact that Mr. Clarke did the acts that caused Ms. Hosany’s death.

2. What was Mr. Clarke’s state of mind in relation to the killing of Ms. Hosany?

[ 58 ] The verdict of manslaughter means that the jury was not satisfied beyond a reasonable doubt either that the offender intended to kill Ms. Hosany, or that, he knew that what he was doing was likely to cause death. All that the verdict tells us is that a reasonable person would have appreciated that bodily harm that is neither trivial nor transitory was the foreseeable consequence of the dangerous act that was being undertaken.

[ 59 ] The offender would have it that the verdict precludes the attribution of any alternative state of mind to him that aggravates the commission of the offence. I do not agree. The circumstances of this case lead me inexorably to the view that while the offender did not know that what he was doing was likely to cause death, he did know that what he was doing to Ms. Hosany put her at risk of death, but he did not care. He was utterly indifferent to the consequences of his acts. No one of sound mind who taped the face of a victim as Mr. Clarke did, and immobilized her in the way that he did, making her utterly incapable of freeing herself, could have known less.

3. Did Mr. Clarke participate in the three earlier robberies?

[ 60 ] Once again, while the jury’s verdict does not necessarily mean that the offender also participated in the three earlier robberies, I have absolutely no doubt that he did. The robbery that resulted in the death of Ms. Hosany was clearly the last of a string of robberies perpetrated by the same two individuals within a twenty-eight day period. Everything about them points in this direction: the fact that two of the robberies, committed one day apart, were, oddly, robberies of flower shops; the cell phone text and tower records place Mr. Clarke in Mr. Joseph’s company at various times before and after the robberies, and some of them place him very close to the robberies around the time that they occurred; the descriptions of the perpetrators fit Mr. Joseph and Mr. Clarke for the most part; the disguises are similar; the weapons are similar; the modus operandi, in particular the taping of the victims, is similar; and the fact that there was a physical match between a torn end of a piece of duct tape taken from the Tulip Florist complainant’s head on February 27, 2008, and the torn end of a piece of duct tape taken from the left wrist of Felicia Hosany at the Flowers by Felicia robbery on February 28, 2008.

[ 61 ] In addition, there is evidence that loot from several of the robberies was found in Mr. Clarke’s room. A red Nike shoebox was found under Mr. Clarke’s bed and a black and gray hand bag beside it. The shoebox contained the $3,000 I have already mentioned, wrapped in an elastic band which had Mr. Clarke’s DNA on it. The bag contained 26 packages of hair weaves. In addition, a very heavy black plastic garbage bag was found behind a tall dresser containing a further 59 packages of hair weaves, and a green nylon bag was found containing 40 packages of hair weaves. As well, a knapsack was found that contained a Canon camera box, as were a brown cardboard box containing hair weaves that has been specifically identified as having been taken from Beauty Collections, and a large blue cloth suitcase that contained eight brand new Canon cameras, six in boxes and two described as display models. Two of the cameras in the suitcase had serial numbers that matched the serial numbers of cameras taken from Henry’s.

[ 62 ] I am satisfied beyond a reasonable doubt that Mr. Clarke was a participant in all of the robberies. Indeed, he was much more than a mere participant. I am satisfied beyond a reasonable doubt that it was Mr. Clarke’s idea to commit the robberies, that he recruited Mr. Joseph, that he chose the places that were robbed, that he was the principal planner of the robberies, that he acquired and painted the plastic guns that were used in the robberies, that he was the leader throughout the robberies, that he gave orders to Mr. Joseph, and that he was the principal beneficiary of the robberies. I reach these conclusions based on the evidence of Mr. Joseph together with the evidence of some of the victims, particularly Ms. Baglieri, but also Mr. Han, Ms. John and Ms. Hassanvaly.

DOES MR. CLARKE FIT THE CRITERIA FOR A DANGEROUS OFFENDER?

[ 63 ] For offences committed prior to July 2, 2008, the task of a judge hearing a dangerous offender application is, first, to determine if the offender fits the criteria for a dangerous offender in s. 753(1), and if so, then to determine whether, despite the threat to the life, safety or physical or mental well-being of other persons posed by the offender, the threat can be reduced to an acceptable level through the use of the sentencing options available under the long-term offender provisions.

[ 64 ] Since the offences in this case were committed prior to July 2, 2008, I must follow that approach. I begin with a consideration of whether Mr. Clarke fits the criteria for a dangerous offender in the former s. 753 of the Code . Section 753(1) of the Code reads as follows:

753. (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), 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.

Are the offences for which Mr. Clarke was convicted serious personal injury offences?

[ 65 ] A serious personal injury offence is defined in s. 752 of the Code, to the extent relevant here, as an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving: (i) the use or attempted use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person, for which the offender may be sentenced to imprisonment for ten years or more.

[ 66 ] As I have noted, t he jury found Mr. Clarke guilty of manslaughter, robbery, unlawful confinement and using an imitation firearm. Each of these offences is punishable by imprisonment for ten years or more, and in each case, the offence involved the use of violence against another person. As a result, there is no doubt that the offences under consideration were serious personal injury offences. No argument was made to the contrary.

Does Mr. Clarke constitute a threat to the life, safety or physical or mental well-being of other persons?

[ 67 ] The defence concedes that the evidence establishes that Mr. Clarke constitutes a threat to the life, safety or physical or mental well-being of other persons. As a result, I will spend little time considering this issue. It is sufficient to say that the evidence led before the jury, taken together with the expert evidence led by psychiatrists and psychologists called by both the Crown and the offender on this hearing, easily establishes:

(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.

Can the threat posed by Mr. Clarke be reduced to an acceptable level through the use of the sentencing options available under the long-term offender provisions?

[ 68 ] Pursuant to the former s. 753.1(1), a court may 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.

[ 69 ] Pursuant to s. 753.1(3), if an offender is found to be long-term offender, the court shall:

(a) impose a sentence for the offence for which the offender has been convicted, which sentence must be a minimum punishment of imprisonment for a term of two years; and

(b) order the offender to be supervised in the community, for a period not exceeding ten years, in accordance with section 753.2 and the Corrections and Conditional Release Act .

[ 70 ] In a case where both the dangerous and long-term offender provisions are satisfied, and the sentencing sanctions available under the long-term offender provisions are capable of reducing the threat to the life, safety or physical or mental well-being of other persons to an acceptable level, a sentencing judge cannot properly declare an offender dangerous and sentence that offender to an indeterminate period of detention. (See R. v. Johnston, 2003 SCC 46, [2003] 2 S.C.R. 357 at para. 32 .)

[ 71 ] In this case, there is no doubt that the first two prerequisites to a long-term offender order are met. The only question for me to consider is whether there is a reasonable possibility of eventual control of the risk presented by Mr. Clarke in the community through the use of the sentencing sanctions available under the long-term offender provisions. If there is, then I must impose those sanctions in preference to an indeterminate period of detention.

[ 72 ] It is the position of the Crown that I should not be satisfied that there is a reasonable possibility of eventual control. The offender says that if the offender is imprisoned for another five years, and is made subject to a long-term offender order for an additional ten years, then I should be satisfied by the evidence that such a reasonable possibility exists. I note that this is not an issue that requires either party to satisfy a burden of proof. Rather it is an issue concerning the exercise of discretion by me based on the whole of the evidence (see R. v. F.E.D. (2007), 2007 ONCA 246, 222 C.C.C. (3d) 373 at para. 50 (Ont. C.A.)). But if the evidence leaves me uncertain whether there is a reasonable possibility of eventual control of the risk presented by Mr. Clarke in the community through the use of the sentencing sanctions available under the long-term offender provisions, then I must refuse to exercise the discretion not to declare the offender a dangerous offender (see F.E.D. at para. 44).

DOES MR. CLARKE FIT THE CRITERIA FOR A LONG-TERM OFFENDER?

The evidence in relation to eventual control of the risk presented by the offender

The offender’s personal and developmental history

[ 73 ] The offender is 36 years of age. He was born in Jamaica, to parents that never cohabited. He never had a real relationship with his father, and was raised by his mother until he was five, when his mother moved to Toronto. The offender and his sister were raised by their grandmother and aunt until the offender was ten. He and his sister were then retrieved by their mother and brought to Toronto.

[ 74 ] The offender’s mother had married and had another child when the offender and his sister came to Toronto. The offender did not bond with his step-father, and according to his sister, the family dynamic was strained, and her mother and step-father dealt with the offender’s behavioural problems with physical punishment weekly or monthly.

[ 75 ] The offender attended school in Toronto, and was assessed as having learning problems. He attended five schools between grades 5 and 8, and his academic performance was spotty. He lacked focus and fooled around. He associated with peers who were involved in criminal activity. He failed grade 7. He ultimately attended secondary school for two years, but attained no credits. He was a “terrible” student in high school, was regularly truant, and was suspended five times for truancy. He associated with the same group of troublemakers.

[ 76 ] Mr. Clarke owned two guns during adolescence. The first was stolen, and the second was purchased with stolen money. He occasionally brought a gun to school, sometimes loaded.

[ 77 ] He was involved in two break and enters of private residences at 13, stole three cars to joy ride at 14, and ran away from home briefly at 15. He participated in break and enters of stores to steal cigarettes and resell them to other stores at 16. He was defiant and disruptive between the ages of 15 and 18, both at school and at home.

[ 78 ] The offender lived in his mother’s home until he was 23 or 24, when he moved into a basement apartment for a few months. Over the next couple of years, he lived with friends. He moved into his sister’s apartment in January 2008.

[ 79 ] Mr. Clarke’s employment history is virtually non-existent. He worked at a restaurant and the zoo for three or four weeks when he was 15, worked at a dry cleaning job for two days at 17, worked for six or seven weeks for a roofing company at 22, worked for four weeks at Canada Post at 22, delivered meat for four weeks at 28, and worked for two months for a brick company at 31. His excuses for quitting were varied (low pay, too demanding, too cold outside) but clearly he preferred to make money from his criminal activity, collect welfare and live as he pleased.

[ 80 ] The offender had an alcohol abuse problem in 2003, and has used marihuana regularly since he was 16.

[ 81 ] Mr. Clarke is lazy by his own account, and has lacked the motivation to work. His behaviour has been impulsive, and he never thought about the consequences of his actions. He claims to have undergone a change in attitude in 2006, and says that he would like to pursue a trade at George Brown College. He did complete his high school diploma while incarcerated.

[ 82 ] As shown above, the offender has an extensive criminal record. I have attached a helpful summary of his offences prepared by Crown counsel as appendix A to this judgment. I will further summarize it briefly now.

[ 83 ] The offender was first convicted as a youth of break and enter and theft on June 12, 1989. He was subsequently convicted of possession of property obtained by crime over $1,000 and attempt to obstruct justice (May 13, 1991); failure to appear, assault and failure to comply (July 4, 1991); possession of an unregistered restricted weapon (a hand gun) (August 26, 1991); possession of property obtained by crime and theft under $1,000 (August 4, 1992); two counts of robbery (December 24, 1992). The sentences ranged from probation, to six months open custody for the weapon offence to one day secure custody in addition to seven months of pre-trial custody and two years probation for the robberies.

[ 84 ] As an adult, the offender was convicted of two counts of conspiracy to commit robbery, three counts of robbery, two counts of using a firearm, possession of a prohibited weapon, possession of an unregistered restricted weapon, three counts of possession of property obtained by crime and two counts of disguise with intent (January 20, 1994); failing to attend court (July 7, 1999); possession of property obtained by crime over $5,000 (September 11, 2003); fail to comply, attempt theft under $5,000 and causing a disturbance (November 6, 2003); and possession of property obtained by crime (November 1, 2004.) He was sentenced to a total of 5 years and 6 months for the robbery and related offences.

[ 85 ] The 1992 robbery convictions related to robberies committed in August 1991. In the first robbery, the offender and four other men robbed a convenience store. Mr. Clarke and a second man had handguns in their possession, and robbed the employee at the cash register while the other men stole cigarettes. Mr. Clarke held his gun to the employee’s head and walked the employee to the cash register. In the second robbery, the offender and two other men robbed another convenience store. Mr. Clarke was armed with a .22 calibre starter’s pistol that had been altered to fire ammunition. The offender pointed his firearm at the victim and said, “This is a fucking robbery open the cash register.” The offender admitted to Dr. Wilkie that he had committed a third robbery in August 1991. He and four friends robbed a donut store. Three of them, including the offender, had guns, which were not loaded, for purposes of intimidation.

[ 86 ] The 1994 robbery convictions were committed during a period from March 14, 1993 to June 20, 1993. Mr. Clarke and four other men were part of an organized group that planned and took steps towards the robbery a branch of the Bank of Nova Scotia and a branch of the Secul Credit Union. These robberies were never carried out.

[ 87 ] On April 28, 1993, Mr. Clarke and another male robbed a branch of the CIBC, disguised and armed with loaded handguns. Clarke robbed an employee while the second robber barred the door.

[ 88 ] On May 10, 1993, Mr. Clarke and two others robbed a Becker’s store armed with hand guns that were pointed at an employee. On that occasion, the offender was the driver of a stolen car and played the role of lookout.

[ 89 ] On May 11, 1993, Mr. Clarke and another man robbed a TD Bank branch. Mr. Clarke pointed a gun at an employee and ordered her to her knees. He then put the gun to her back and ordered her into the vault. Once there, he told her she had seconds to open the safe, pointed the gun at her forehead and started counting down from ten. About $3,100 was taken from the bank.

[ 90 ] On June 30, 1993, police officers seized a .22 calibre semi-automatic handgun in the offender’s bedroom, and the $3,100 taken from the bank. The gun had a clip with four live rounds of ammunition, with one in the chamber, ready to be fired.

[ 91 ] On his guilty pleas, the offender admitted committing four additional robberies in February 1993, and agreed that they could be taken into consideration in sentencing him.

[ 92 ] On February 2, 1993, he and another man robbed a TD Bank branch while disguised. Mr. Clarke was armed with a sawed-off shotgun, and announced, “Nobody move, this is a holdup, don’t mess around.” The other male, who was armed with a revolver, threw a knapsack at a teller and told her to fill it. Mr. Clarke went to the rear of the teller and filled his pockets with cash. The two men took over $10,000.

[ 93 ] On February 7, 1993, Mr. Clarke and four others robbed a McDonald’s restaurant. Mr. Clarke was the lookout. The others had a sawed-off shotgun and a revolver.

[ 94 ] On February 10, 1993, Mr. Clarke and two others robbed a Royal Bank branch while disguised. The offender was armed with a sawed-off shotgun, and the others had handguns. The customers were ordered to the ground. The offender forced the manager to the vault at gun point while others filled gym bags with cash. As they left, Mr. Clarke brandished his shotgun and yelled out that they were the “Scarborough Bandits”. $46,000 was taken.

[ 95 ] On February 12, 1993, Mr. Clarke and another male robbed a CIBC branch. He was armed with a sawed-off shotgun, and the other man had a handgun. The offender ordered one employee to open the vault. When she tried to explain that she couldn’t do so, he pointed the shotgun at her and said, “If you don’t open the vault, I’ll blow your fucking head off.” The men took an undetermined amount of money.

[ 96 ] With respect to the September 11, 2003 conviction, the offender was in possession of five rare collectible baseball cards valued at approximately $186,000.

The expert evidence

[ 97 ] As I have already noted, I remanded Mr. Clarke to the custody of Dr. Treena Wilkie at CAMH to perform an assessment pursuant to s. 752.1 of the Code . Dr. Wilkie is a staff psychiatrist at CAMH. Her report was filed on consent, and in addition, she testified at this hearing. As a part of the assessment process, Mr. Clarke was referred to Dr. Stephanie Penney, a psychologist in the Law and Mental Health Program at CAMH, for psychological testing. While she did not testify, her report was also filed at this hearing on consent.

[ 98 ] In addition, the defence retained Dr. Jeff McMaster, a consultant in forensic psychiatry, to prepare a psychiatric report, and Dr. Giorgio Ilacqua, a psychologist, to prepare a psychological assessment. They both testified at this hearing, and their reports were filed on consent.

[ 99 ] Before discussing the evidence of the expert witnesses, I note again that the defence concedes that the evidence establishes that Mr. Clarke constitutes a threat to the life, safety or physical or mental well-being of other persons. I would have reached the same conclusion regardless of the concession, based on evidence that establishes: (i) a pattern of repetitive behaviour by the offender, including these offences, showing a failure to restrain his behaviour, and a likelihood of his causing death or injury to other persons through a failure in the future to restrain his behaviour, and (ii) a pattern of persistent aggressive behaviour by the offender, including these offences, showing a substantial degree of indifference on his part respecting the reasonably foreseeable consequences to others of his behaviour. I reached these conclusions based on a review of the evidence led at this trial and an examination of the details of his criminal record, and the expert evidence.

[ 100 ] Dr. Wilkie said that her risk assessment suggests that “Mr. Clarke presents with a substantial risk of future violence.” Dr. McMaster was even stronger. He said, “Mr. Clarke appears to be an individual at high risk of violence, and there appears to be a substantial risk that this violence may be of a serious nature.” Dr. Penney scored Mr. Clarke in the 85 th percentile, and in the seventh of nine ascending categories for violent recidivism compared to the standardization sample on the Violence Risk Appraisal Guide (“VRAG”). She also scored him 18 out of 40 on the PCL-R, indicating that he exhibits only some of the personality features consistent with psychopathy. Dr. Ilacqua also rated Mr. Clarke’s recidivism risk to be moderate to high.

[ 101 ] In light of the unanimity of expert opinion, and the defence concession, I see no need to further rehearse the expert evidence that supports these conclusions under this heading. The difficult issue, then, is the one now under consideration, whether the evidence satisfies me that there is a reasonable possibility of eventual control of the risk presented by Mr. Clarke in the community through the use of the sentencing sanctions available under the long-term offender provisions.

[ 102 ] The position of the defence is that there is a reasonable possibility of control of the risk presented by Mr. Clarke in the community with five additional years of imprisonment (in the course of argument, counsel for the offender conceded that a sentence in the range of 12 to 14 years less credit for pre-trial custody might be appropriate) followed by a ten year long-term supervision order (“LTSO”). This position is derived from the predictions made by the expert witnesses. Predictions of future behaviour are notoriously unreliable. Before I can be satisfied that risk presented by Mr. Clarke can be reduced to an "acceptable" level, the evidence that supports such a conclusion must amount to more than a mere hope of eventual control of the risk, but less than a demonstration of certainty. In assessing the evidence, I find it helpful to remind myself of what was said by Cronk J.A. in R. v. G.L. (2007), 2007 ONCA 548, 225 C.C.C. (3d) 20 (Ont. C.A.) at paras. 41-42 :

41 In R. v. McCallum (2005), 2005 8674 (ON CA), 201 C.C.C. (3d) 541, leave to appeal to S.C.C. refused, [2006] S.C.C.A. No. 145, this court stated at para. 47:

Case law from this court and from the British Columbia Court of Appeal under the former dangerous offender legislation and the amended provisions has held that in order to achieve the goal of protection of the public under the dangerous offender and long-term offender provisions, there must be evidence of treatability that is more than an expression of hope and that indicates that the specific offender can be treated within a definite period of time: R. v. Poutsoungas (1989), 1989 7104 (ON CA), 49 C.C.C. (3d) 388 (Ont. C.A.); R. v. Higginbottom (2001), 2001 3989 (ON CA), 156 C.C.C. (3d) 178 (Ont. C.A.). In R. v. M. (J.S.) (2003), 2003 BCCA 66, 173 C.C.C. (3d) 75 (B.C.C.A.), the court stated that the basic purpose of the dangerous offender provision before the 1997 amendment was the protection of the public and that under the amended legislation, the test for achieving that goal is set out in s. 753.1(1)(c), namely, whether there is a reasonable possibility of control in the community of the risk of the offender re-offending. The court also noted that the French version of the section requires "une possibilité réelle," or a "real possibility," which may require an even higher degree of certainty in the evidence than the English version, a "reasonable possibility."

See also R. v. Grayer (2007), 2007 ONCA 13, 215 C.C.C. (3d) 505 at para. 70 (Ont. C.A.); R. v. Allen, 2007 ONCA 421, [2007] O.J. No. 2226 at para. 28 (C.A.).

42 I do not read Johnson as displacing the principle that, to achieve the goal of protection of the public under the dangerous offender and long-term offender provisions in the Code, evidence of treatability that (i) is more than mere speculative hope, and (ii) indicates that the specific offender in question can be treated within an ascertainable time frame, is required. The requisite judicial inquiry on a dangerous offender application, mandated by Johnson, is concerned with whether the sentencing sanctions available under the long-term offender provisions of the Code are "sufficient to reduce [the offender's] threat to an acceptable level." [Emphasis added.] The determination of whether an offender's risk can be reduced to an "acceptable" level requires consideration of all factors, including treatability, that can bring about sufficient risk reduction to ensure protection of the public. This does not require a showing that an offender will be "cured" through treatment or that his or her rehabilitation may be assured. What it does require, however, is proof that the nature and severity of an offender's identified risk can be sufficiently contained in the community, a non-custodial setting, so as to protect the public.

[ 103 ] I understand that the word “treatment” in these cases has a broad meaning, and includes not only treatment for mental illness, but also rehabilitative programs designed to ameliorate personality disorders.

[ 104 ] With the framework discussed in G.L. in mind, I turn to the views of the experts.

Dr. Wilkie

[ 105 ] I begin with Dr. Wilkie, the psychiatrist called by the Crown. I will briefly discuss the basis upon which she concluded that the offender poses a risk to the community. Only then can her evidence concerning eventual control of that risk be understood.

[ 106 ] Dr. Wilkie expressed the view Mr. Clarke suffers from no major mental illness. Instead, she said that he meets the criteria for conduct disorder of adolescent onset and for antisocial personality disorder. When personality traits are maladaptive and inflexible, and cause social or occupational dysfunction, then personality disorders such as these are said to exist. The essential feature of antisocial personality disorder is a pervasive pattern of disregard for, and violation of the rights of others. While the presence of only three of the indicators for antisocial personality disorder are necessary for such a diagnosis, almost all of them are present in Mr. Clarke’s case, including:

• Failure to confirm to social norms with respect to lawful behaviours;

• Deceitfulness as indicated by the use of aliases;

• Impulsivity or a failure to plan ahead;

• Irritability or aggressiveness;

• Reckless disregard for the safety of others;

• Consistent irresponsibility as indicated by a repeated failure to sustain consistent work behaviour; and

• Lack of remorse, as indicated by being indifferent to, or rationalizing, having hurt or stolen from others.

[ 107 ] Individuals with antisocial personality disorder are generally considered to be untreatable. There is little evidence suggesting that these individuals are capable of personality change even with assiduous treatment. However Dr. Wilkie testified that in her view, while there is no treatment for antisocial personality disorder per se, there are particular treatment or management modalities that can be used with individuals who suffer from this particular personality dysfunction, and these are mainly around “consequencing” individuals for their behaviour. Treatment for antisocial personality disorder primarily focuses on anger management, social skills training, and vocational training. Management is focussed on independent verification of information, the development of fair and predictable consequences for behaviours, and maintenance of firm, consistent boundaries

[ 108 ] While she thought that there would be challenges from a psychiatric perspective regarding Mr. Clarke’s manageability in the community, she concluded that there was a reasonable possibility that he could respond to interventions designed to manage his risk in the community, and that this would meet the criteria for a finding that he is a long-term offender. In reaching this conclusion, she took into account a number of factors, (p. 60 et seq.) including:

1. Considering the offender’s primary diagnosis of antisocial personality disorder is difficult to treat, there is some reason for pessimism, given his limited capacity for empathy, and the fact that his past criminal conduct was driven by personal gain with little if any consideration of the impact of his actions on victims. This is ameliorated to a degree by his score on the psychopathy checklist, which was average compared to other offenders.

2. He has expressed a willingness to participate in programming, and based on his history, if it were offered to him, he would participate, although he was not sufficiently motivated for treatment to pursue it on his own. Dr. Wilkie considered this to be a fairly positive prognosis overall. While Dr. Wilkie noted in her report that there is little research indicating that the desire to pursue treatment or to comply with supervision is related to a reduction in recidivism, she went on to say that Mr. Clarkes’s completion of cognitive skills and living without violence programs during incarceration 15 years ago, his attaining a high school diploma in prison, his attending counselling while on probation and his attitude to programming are positive. This is tempered by the fact that the offender is passive about treatment and does not pursue it proactively in the community. In the end, she said that he has a fairly positive prognosis with respect to engagement in programming, especially if directed by a person or institution.

3. His past response to treatment while under supervision was generally positive, although, based on his risk cycle, he hasn't fully internalized the risk management skills from the programming that it was hoped that he would. She concluded that Mr. Clarke is more motivated when there are strict external controls or consequences present.

4. His history of unstable employment is risk-enhancing, but his involvement in vocational programming when it was offered to him while under intense supervision is risk reducing. His employment prospects are limited, but with external support and structure, he would be more likely to pursue vocational activities.

[ 109 ] Taking these variables into account in addition to the risk assessment tools, and given his history and his stance at the current time, and despite the fact that there may be challenges in terms of managing him, including his tendency to associate with criminal peers, his impulsivity and his emotional and interpersonal deficits, she concluded that there was a reasonable possibility that after undergoing treatment in an institution, he could ultimately respond to intense supervision and external controls in the community.

[ 110 ] When asked what she could say about the risk of Mr. Clarke re-offending in the community at a period in time when those external controls no longer exist, that is, once a long-term supervision order expires, Dr. Wilkie said that it is very difficult from a psychiatric perspective to look fifteen or more years into the future in order to make any clear statements about risk after Mr. Clarke has undergone treatment both in an institution and in the community, as well as a lengthy period of supervision. Some of his risk variables may respond to interventions but some would not be expected to. In addition, while she agreed that risk decreases with age, but it is difficult to quantify the decrease, and other factors need to be taken into account.

Dr. McMaster

[ 111 ] Dr. McMaster also diagnosed Mr. Clarke with antisocial personality disorder. His analysis did not differ markedly from Dr. Wilkie’s analysis. He concluded that taking into account actuarial and structured professional judgment risk assessments, Mr. Clarke’s history of violence to several victims, and the type of violence committed, there appears to be a high risk of Mr. Clarke engaging in physical violence and a substantial risk that this violence will involve significant physical harm, flowing not from any strong intention to hurt others, but from a lack of empathy, recklessness and irresponsibility.

[ 112 ] Dr. McMaster testified that in his opinion, if Mr. Clarke were released into the community right now without treatment or supervision, he would be at high risk, in other words he would constitute a threat to the life, safety or physical well-being of other persons, because anything that he has learned over the last four years while in custody would probably erode. Mr. Clarke continues to have significant deficits, and needs to make a sustained lifestyle change. The best way to accomplish this is through treatment before he is released under supervision, and tight supervision on an LTSO after he is released that keeps him on track.

[ 113 ] Dr. McMaster shared Dr. Wilkie’s concerns about the challenges in treating and managing individuals with antisocial personality disorder. He said that antisocial personality disordered individuals who are not psychotic, as is the case with Mr. Clarke, are generally more treatable than persons who suffer from psychopathy. He found it encouraging that Mr. Clarke has been described as suffering from poor self-esteem, dependency and depressed mood, which may make him a better candidate for treatment. In the end, it was his opinion that while Mr. Clarke is an individual at high risk of violence, his risk can be successfully managed in the community on an LTSO.

[ 114 ] But to manage his risk successfully, Mr. Clarke will require professional assistance and monitoring. He needs to be treated institutionally, and after acquiring skills, he needs to be gradually tested in the community. He anticipated that Mr. Clarke will be able to learn by way of the programming available in an institution within a few years, and recommended that his release be tied to his institutional performance to maximize his motivation to fully participate in that programming.

[ 115 ] With respect to treatment, Dr. McMaster enumerated the risk factors that needed to be managed, including his lack of insight into his risk of violence and his denial of having committed violence against others, and suggested that should live as structured a lifestyle as possible to avoid placing his coping strategies under excess duress.

[ 116 ] The treatment Mr. Clarke requires must be intensive. He will need frequent sessions, and his treatment programming will need to stay on track. He needs to have experienced clinicians working with him. His treatment should be a cognitive behavioural approach and a relapse prevention approach using "a stages of change" model. Mr. Clarke should be looking at his antisocial attitudes – any circumstances and attitudes that contribute to crime and violence. As part of his treatment approach, attention must be paid to his lack of insight, his poor coping mechanisms and getting him the skills to adapt in a pro-social way in the community. He may also need treatment for his cannabis and alcohol abuse.

[ 117 ] Even after treatment, given Mr. Clarke’s assessed risk, risk factors, and history of difficulties with supervision, Mr. Clarke must be re-integrated into the community gradually, and with a plan. He needs to go in steps. The supervision must be very lengthy, and must include consequences if he veers off. It must include things like preventing him from having weapons or knives in his residence, random urine drug screenings, ensuring that he doesn't have contact with antisocial peers, and doing something structured and pro-social in the daytime, followed by a curfew.

[ 118 ] With respect to supervision, Dr. McMaster said that it is unclear if any treatment success would translate into an absence of recidivism in the community absent further external controls on his behaviour. He thought that professional supervision would be very important in risk management, given that his family members do not fully grasp the depth of his criminal history. Dr. McMaster enumerated the strict terms of future release that he thought were necessary.

[ 119 ] If such a plan were followed, it was Dr. McMaster’s opinion that the risk posed by Mr. Clarke could be successfully managed in the community. In other words, there is a reasonable possibility of eventual control of the risk in the community that the offender will reoffend. He reached this conclusion because, he said, Mr. Clarke has responded well to a prior parole period, and when treatment was offered to him, he engaged in it successfully. Mr. Clarke’s problem, he said, has been following through, for the long term, on what he has learned. He agreed with Dr. Wilkie that his risk cycle suggests that he has not fully internalized risk management skills. He also said that while Mr. Clarke accepts his need for assistance, he underestimates it.

[ 120 ] Given Mr. Clarke’s history, Dr. McMaster acknowledged the risk that once Mr. Clarke is no longer required to follow up with treatment and supervision, he will fail to do so, and his pro-social skills will gradually erode. To avoid this, and to best manage his risk of violence, the period of community supervision should be as long as possible, to allow for timely intervention should Mr. Clarke take steps in the direction of criminal lifestyle. This would allow him to make a significant, pervasive and sustained change in his lifestyle.

[ 121 ] Finally, Dr. McMaster said that Mr. Clarke’s risk of violence will be lower after ten years of supervision, because he will be older.

[ 122 ] In cross-examination, Dr. McMaster was asked what assurance there was that notwithstanding five more years of treatment and ten more years of supervision, those skill sets that Mr. Clarke may or may not learn will erode. He of course agreed that he cannot make hard and fast predictions. He said that if Mr. Clarke does well on a ten year LTSO, without being returned to custody, and without committing other offences, and he has managed to change his lifestyle, the probability would be a lot better than if he has great difficulty on an LTSO. In the end, he thought that the public is safer overall with Mr. Clarke on an LTSO than a long period of incarceration, and that a dangerous offender designation is not necessary.

[ 123 ] It was also the opinion of Dr. Ilacqua that Mr. Clarke could be managed in the community provided appropriate and intensive supervision supports are in place and maintained in place for a significant amount of time.

Analysis

[ 124 ] I am faced with what no doubt is an unusual situation. The expert witnesses called by both the Crown and the offender all agree that all three prerequisites to a long-term offender order are met in this case. In particular, they all agree that the third prerequisite is satisfied – there is a reasonable possibility of eventual control of the risk presented by Mr. Clarke in the community through the use of the sentencing sanctions available under the long-term offender provisions. It was the opinion of Dr. Wilkie that despite the challenges, there was a reasonable possibility that Mr. Clarke could respond to interventions designed to manage his risk in the community. Similarly, it was the opinion of Dr. McMaster that while Mr. Clarke is an individual at high risk of violence, his risk can be successfully managed in the community on an LTSO. I note that for the most part, based on the very helpful evidence of Elizabeth Vitek, a long-time employee of Correctional Services Canada and currently the Area Director for the Downtown Toronto Parole Office, the resources needed to carry out the treatment and supervision recommended by the expert witnesses are available in the federal correctional system.

[ 125 ] In my view, while the opinions of Dr. Wilkie and Dr. McMaster are certainly hopeful, in each case they amount to more than just a hope. Both opinions have a basis in the evidence. I cannot help but observe, however, that the evidentiary foundation for these opinions is frail. They are primarily based on Mr. Clarke’s expressed willingness to participate in programming, his completion of a cognitive skills program and a living without violence program during incarceration fifteen years ago, his attaining a high school diploma in prison while awaiting trial and sentencing in this matter, and his attending counselling while on probation. The expert witnesses hold these opinions despite: the offender’s passivity about treatment and his failure to pursue it proactively; his failure to “fully” internalize the risk management skills from the programming that it was hoped he would, as reflected by his sorry history of violent recidivism; his limited employment prospects; his lack of insight into his risk of violence; his significant minimization of the potential impact of his behaviour on other people, including victims and his own family members; his lack of remorse; and his denial of having committed violence against others.

[ 126 ] In Ms. Pirraglia’s probing examination of Dr. Wilkie and her skilful cross-examination of both defence experts, she confronted these witnesses with every weakness in the underpinning of their opinions. In her conspicuously able argument, she effectively marshalled these weaknesses, and urged me not to be satisfied that there is a reasonable possibility of eventual control of the risk in the community.

[ 127 ] Needless to say, I am not obliged to accept the opinion of an expert witness, or even the unanimous opinion of three expert witnesses called by both the Crown and the offender. Certainly in this case I share the Crown’s view that there is a great deal of uncertainty in the conclusion that the risk posed by Mr. Clarke will ultimately be manageable. At the same time, however, I bear in mind that the third prerequisite for a long-term offender finding does not demand certainty or even probability of eventual control, but only a reasonable possibility of eventual control. Based on the evidence of the expert witnesses, viewed in the context of the whole of the evidence, I am satisfied that there is such a reasonable possibility of eventual control of the offender while he is subject to an LTSO, after first serving a significant period of imprisonment during which the offender undergoes intensive treatment.

[ 128 ] There remains to be considered, however, the question of control of the risk posed by Mr. Clarke in the community many years in the future. This is of particular concern when the “treatment” in issue is not treatment of a mental illness, but rather of maladaptive and inflexible personality traits which are untreatable per se, and probably cannot be changed. Instead the treatment is directed to bringing about a sustained lifestyle change through the use of management modalities designed to internalize risk management skills in Mr. Clarke. This is no small task for this offender, whose management skills have persistently eroded in the past once free of supervision.

[ 129 ] While the evidence in this case mostly centred on risk management in the community while the offender is under supervision, there can be no doubt that the third criterion for a long-term offender order is focussed on the post-LTSO period as well. If authority be needed for this proposition, I refer to the decision of Barclay J. in R. v. L.C.W ., 2000 SKQB 302, [2000] S.J. No. 422 . The following language in para. 129 of that judgment has been adopted in this province by Nordheimer J. in R. v. D.J.D., [2003] O.J. No. 5447 at para. 40 (S.C.J.) and by J. Macdonald J. in R. v. Walford, [2007] O.J. No. 744 at para. 78 (S.C.J.) :

It is my interpretation of the amendments to the Criminal Code and in particular the long-term offender provisions, that the term reasonable possibility of eventual control in the community, must refer to a set of circumstances where, during the term of the supervision order, the offender is likely to be rehabilitated such that when the supervision order expires the accused is not a substantial risk to re-offend. It is my view that Parliament never intended in enacting these amendments that an offender could be designated as a long-term offender because he can be controlled while under a supervision order notwithstanding that he would be a substantial risk after supervision is terminated.

[ 130 ] What do the experts say about control after the LTSO is terminated? As I have already noted, when Dr. Wilkie was asked what she could say about the risk of Mr. Clarke re-offending once a long-term supervision order expires, Dr. Wilkie said that it is very difficult from a psychiatric perspective to look fifteen or more years into the future in order to make any clear statements about risk after Mr. Clarke has undergone treatment both in an institution and in the community, as well as a lengthy period of supervision. Some of his risk variables may respond to interventions but some would not be expected to.

[ 131 ] Dr. McMaster said that given Mr. Clarke’s history, there is a risk that once Mr. Clarke is no longer required to follow up with treatment and supervision, he will fail to do so, and his pro-social skills will gradually erode. To avoid this, and to best manage his risk of violence, the period of community supervision must be as long as possible, so that timely intervention will be possible should Mr. Clarke take steps in the direction of criminal lifestyle. This would allow him to make a significant, pervasive and sustained change in his lifestyle.

[ 132 ] In addition, Dr. McMaster said that Mr. Clarke’s risk of violence will be lower after ten years of supervision, because he will be older. Dr. Wilkie agreed that the risk of violence decreases with age, but she said that it is difficult to quantify the decrease, and other factors need to be taken into account. Unfortunately, she was not asked about a more case-specific point made by Dr. McMaster on this issue. Dr. McMaster said that Mr. Clarke is “unique” in the sense that he does not go around looking for fights, or looking to hurt others. His violence is almost a by-product of trying to obtain material things. As I understood Dr. McMaster, he was not attributing any praiseworthy characteristic to Mr. Clarke. He was simply saying that he hurts people to get what he wants – when he commits robberies. He does not hurt people for nothing. And since general criminal offending, such as committing robberies, does decrease with time, Mr. Clarke’s violent behaviour will likely go down with the process of aging as well. In my view, this point is both logical and pertinent.

[ 133 ] I have said that there is a great deal of uncertainty in the conclusion that the risk posed by Mr. Clarke will ultimately be manageable while he is under supervision. The uncertainty after supervision ends is surely greater. On the other hand, it would be disingenuous for the experts to profess to be any more certain than they are about a period of time so many years in the future, without knowing the extent to which the treatment and supervision they recommend will be successful. Nonetheless, having regard to the evidence I have just outlined, and in particular Dr. McMaster’s evidence about aging, I am satisfied that there is a reasonable possibility of eventual control of the offender after his LTSO is terminated.

[ 134 ] As a result, I find the offender to be a long-term offender, and I turn to the determination of the appropriate sentence.

THE APPROPRIATE SENTENCE

[ 135 ] I have already noted that pursuant to s. 753.1(3) of the Code, if an offender is found to be a long-term offender, the court shall:

(a) impose a sentence for the offence for which the offender has been convicted, which sentence must be a minimum punishment of imprisonment for a term of two years; and

(b) order the offender to be supervised in the community, for a period not exceeding ten years, in accordance with section 753.2 and the Corrections and Conditional Release Act .

[ 136 ] As a result, I must determine the length of both the mandatory period of imprisonment to be imposed on the offender, and the length of the LTSO. The second determination is easy. The Crown asks for the maximum – ten years. The experts collectively have said that the longest possible period is desirable, for reasons I have already discussed. The defence preferred a slightly shorter period, but effectively agrees that ten years would be appropriate. I have no doubt on this issue, and order the offender to be supervised in the community for a period not exceeding ten years in accordance with section 753.2 of the Code and the Corrections and Conditional Release Act .

[ 137 ] I turn next to the period of imprisonment.

[ 138 ] I begin by recalling that the dangerous offender/ long-term offender sentencing regime is a "specialized measure" targeted at offenders who clearly pose a threat to the security of our communities. The primary purpose of this regime is the protection of the public. When imposing sentence on a long-term offender, the nature of the crime and the circumstances of the offender call for the elevation of the goal of public protection over the other purposes of sentencing . The sentence imposed on a long-term offender must fulfil with that goal. At times, this may result in a longer sentence than that would likely have resulted from the application of the other principles of sentence (see R. v. Edwards, 2008 ONCA 414, [2008] O.J. No. 2055 (C.A.)).

[ 139 ] Here, in order to impose a workable long-term offender order, the period of imprisonment must be lengthy. But in this case, as will be seen, the ordinary principles of sentence call for a sentence that is very lengthy in any event.

[ 140 ] Because this sentence hearing included a dangerous offender application, which necessarily focussed on ultimate rehabilitation, it appeared to me that at times there was a tendency for some of the witnesses, if not counsel, to lose sight of the relevant principles of sentence, and to unduly focus on what would be best for Mr. Clarke’s rehabilitation. For example, in his evidence, Dr. McMaster raised his concern that individuals like Mr. Clarke may respond to punitive measures in such a way that actually makes them worse if imprisonment goes on for too long. Of course, only time will tell if Dr. McMaster is correct. But I cannot sacrifice the application of the principles of sentence mandated both by Parliament and by jurisprudence on the altar of rehabilitation theory.

[ 141 ] To determine what a fit sentence is for Mr. Clarke for the crimes of which he has been convicted, it is helpful to recall briefly the fundamental purpose of sentencing, the objectives of sentencing that govern and the relevant principles of sentencing.

[ 142 ] Section 718 of the Code provides that the fundamental purpose of sentencing is to contribute, along with other crime prevention initiatives, to respect for the law, and the maintenance of a just, peaceful and safe society by imposing just sanctions with statutorily defined objectives. These objectives include, but are not limited to: denunciation; specific and general deterrence; separation of offenders from society where necessary; rehabilitation; promotion of a sense of responsibility in offenders for their crimes and acknowledgement of the harm done to victims and the community.

[ 143 ] Section 718.1 provides that the fundamental principle of sentencing is that the sentence should be proportionate to the gravity of the offence and the degree of responsibility of the offender. In addition, as pertinent here, s. 718.2 provides that the sentence should take into account aggravating and mitigating circumstances; should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (the disparity principle); and, where consecutive sentences are imposed, should not be unduly harsh (the totality principle).

[ 144 ] In applying these principles to this case, I begin by observing that only a lengthy penitentiary sentence could be considered to be proportionate to the gravity of the offences committed by Mr. Clarke. His offences were terrifying and very grave. They involve both premeditation and a callous disregard for others. They exhibit an attitude of entitlement at the expense of others to a degree that is difficult to comprehend.

[ 145 ] Having regard to the circumstances of the offences, as well as the offender, I consider it appropriate to emphasize denunciation of the conduct in question, deterrence of the offender and others, and the necessity of separating the offender from society, without losing sight of the need to assist in the offender's ultimate rehabilitation. I also bear in mind that the sentence must be proportionate to the gravity of the manslaughter offence in particular, and the degree of responsibility of the offender.

[ 146 ] I also take into account the many aggravating features of the offences committed by Mr. Clarke. Mr. Clarke committed the robbery while disguised and armed with an imitation gun. He restrained the victim, and treated her in a most horrifying and intimidating manner even before he killed her. The robbery was not an isolated act, but rather was a part of a crime spree – an ongoing string of robberies in which a considerable amount of money and property was taken, most of which ended up in his possession. It was Mr. Clarke’s idea to commit the robberies. He recruited the younger, inexperienced and record-free Mr. Joseph to participate in the robberies with him. Mr. Clarke chose the places that were robbed. He was the principal planner of the robberies. He acquired and painted the plastic guns that were used in the robberies. He was the leader throughout the robberies. He gave orders to Mr. Joseph. In addition, I take into consideration the profound effect these crimes had on the direct and indirect victims of these offences. And most importantly of all, I bear in mind that it was Mr. Clarke who actually did the act that caused the death of Ms. Hosany, and that he did it in a manner that reflected his callous indifference to the well-being of those who stand in the way of his selfish goals. This was not a simple restraining of a robbery victim gone wrong. Mr. Clarke knew that what he did would put Ms. Hosany at risk of death, but he did not care. He proceeded recklessly, and he killed her. The horrors of her final moments of life are beyond imagination.

[ 147 ] As for mitigating factors, I can think of none.

[ 148 ] The sentence I impose in this case must also be lengthy in order to meet the objectives of sentencing that must predominate in the circumstances I have described. Denunciation, specific and general deterrence and the separation of Mr. Clarke from society must predominate. It must also reflect the seriously aggravating features I have outlined. At the same time, I must not lose sight of the fact that there is some prospect of rehabilitating Mr. Clarke in the very long term, or at least training him to control his capacity for violence. Having said all of this, the question remains : how long should the sentence be?

[ 149 ] I have noted that I sentenced Mr. Joseph to a term of imprisonment for 12½ years, consisting of 10 years for manslaughter, and 2½ for each of the three other robbery offences he pleaded guilty to, concurrent to each other but consecutive to the manslaughter sentence. I would have made all of the sentences consecutive, resulting in a 17½ year sentence, but in Mr. Joseph’s case, taking into account the significant mitigating circumstances, I concluded that a sentence of that length for Mr. Joseph had to give way to the totality principle.

[ 150 ] But the sentence I imposed on Mr. Joseph in no way constrains the sentence that may be imposed on Mr. Clarke. The mitigating circumstances I just made reference to, including the following facts: Mr. Joseph pleaded guilty; he is still a relatively young man; he has no criminal record; he is remorseful; he confessed his guilt at an early stage and cooperated with the Crown by testifying against Mr. Clarke without any plea arrangement, and at significant risk to his well-being in prison; he played a secondary role in the offences; while he participated in the acts that resulted in the death of Ms. Hosany, it was Mr. Clarke who finally taped her mouth and nose in a manner that caused her to suffocate; and that Mr. Joseph will be deported upon his release from imprisonment.

[ 151 ] It seems clear to me that Mr. Clarke’s offences should attract a significantly longer sentence than Mr. Joseph’s offences. The disparity principle has no role to play here.

[ 152 ] In my reasons for sentence in relation to Mr. Joseph, I stated, at para. 59:

59 Manslaughter encompasses homicide in so many and varying conditions that it is unsurprising that sentences imposed for this offence are exceptionally varied, and have included everything from suspended sentences to sentences of life imprisonment. But patterns of sentencing for different categories of manslaughter can be discerned. Mr. Armstrong, for the Crown, correctly in my view, identified the ordinary range of sentence for an aggravated manslaughter such as this one as 8 to 12 years imprisonment, remembering of course that the circumstances of an offence or an offender can move the sentence above or below this range. For support for this range of sentence, see R. v. Clarke (2003), 2003 28199 (ON CA), 172 O.A.C. 133 (C.A.) and R. v. Atherley, 2009 ONCA 195, [2009] O.J. No. 834 (C.A.).

[ 153 ] I continued, at para. 62:

62 I am of the view that Mr. Armstrong has hit the mark in his recommendations for the proper sentences to be imposed for each of the offences individually, but that he has missed the mark marginally in his overall recommendation by not giving adequate effect to the principle of totality and, perhaps, to the mitigating effect of remorse and cooperation.

[ 154 ] There can be no question that the sentence that I impose on Mr. Clarke should be markedly greater than the sentence I imposed on Mr. Joseph. The disparity principle, codified in s. 718.2(b), that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances” presents no obstacle. Although Mr. Clarke and Mr. Joseph were co-offenders, and committed the same offence of manslaughter, Mr. Clarke’s sentence must be increased significantly to account for the many aggravating circumstances relating both to him and to his role in the commission of the offence (see s. 718.2(a)).

[ 155 ] The distinctions between the offenders include the following:

a) Mr. Joseph was a first-time offender, while Mr. Clarke has a serious criminal record including many crimes of violence.

b) Mr. Joseph pleaded guilty. Mr. Clarke did not. I recognize that exercising the right to a trial is not an aggravating consideration on sentencing. I merely point out that Mr. Joseph got the benefit of the mitigating effect of a guilty plea, while Mr. Clarke will not.

c) Mr. Joseph was still a young man. Mr. Clarke is not.

d) Mr. Joseph is remorseful. Mr. Clarke is not.

e) Mr. Joseph confessed his guilt at an early stage, co-operated with the Crown, and testified against Mr. Clarke at significant risk to his well-being in prison, without any plea arrangement.

f) Mr. Joseph will be deported after he completes his sentence. Mr. Clarke will not.

[ 156 ] The distinctions between the roles played by the offenders in the commission of the offence include the following:

a) It was Mr. Clarke’s idea to commit the robberies.

b) Mr. Clarke recruited Mr. Joseph, who was younger and inexperienced.

c) Mr. Clarke selected the places to rob.

d) Mr. Clarke was the principle planner of the robberies.

e) Mr. Clarke acquired the weapons used in the robberies.

f) Mr. Clarke was the leader throughout the robberies.

g) Mr. Clarke treated Ms. Hosany brutally throughout, threatening to kill her dog when she hesitated about providing her PIN number, punching her twice in the head when she resisted being tied up, and placing a rag in her mouth to keep her quiet.

h) Most importantly, Mr. Clarke actually caused Ms. Hosany’s death, taping her arms and legs with duct tape, taping her face tightly, and then tying her to racks in a cramped, dark bathroom and closing the door, ensuring that she had no escape from death.

[ 157 ] I return to what I said in sentencing Mr. Joseph, that Crown counsel correctly identified the ordinary range for an aggravated manslaughter as 8 to 12 years, remembering that the circumstances of an offence or an offender can move the sentence above or below the range. I relied on two Court of Appeal judgments in making this comment (R. v. Clarke (2003), 2003 28199 (ON CA), 172 O.A.C. 133 (C.A.) and R. v. Atherley, 2009 ONCA 195, [2009] O.J. No. 834), but since there was no suggestion of imposing a sentence outside the ordinary range, I did not refer to R. v. Devaney (2006), 2006 33666 (ON CA), 213 C.C.C. (3d) 264 (Ont. C.A.). In this case, Devaney is instructive.

[ 158 ] In Devaney, at trial, Crown counsel asked the trial judge to impose a sentence of life imprisonment on an offender who had been convicted of manslaughter. The trial judge imposed a sentence of 11 years, less credit for pre-trial custody. On appeal, the Crown asked the court to increase the sentence to one of 18 to 20 years. The appeal was dismissed. Feldman J.A. stated that while the trial judge could well have concluded that this was a case that called for a sentence outside the range established in the Clarke decision, he did not impose a sentence that was manifestly unfit, and his decision was therefore entitled to deference.

[ 159 ] In her reasons, Feldman J.A. began by noting that the role of the sentencing judge is to impose a sentence that is fit, and that while it is appropriate to consider a starting point or range of sentence for a particular offence committed in particular circumstances, a trial judge is entitled to deviate from that starting point or range after considering the particular facts of the case including the circumstances of the victim, the particulars of the crime, and the history and circumstances of the offender (see paras. 12-14). She continued, at para. 14:

Where there are facts or circumstances that distinguish the situation significantly from other cases where sentences were imposed within the range, whether because of the victim, the nature of the crime itself, or the history or current circumstances of the offender, the trial judge is entitled to impose a sentence that adequately reflects the significance of those facts. In R. v. Cheddesingh (2004), 2004 SCC 16, 182 C.C.C. (3d) 37 at 38, the Supreme Court repeated: "As is always the case with sentencing, the inquiry must proceed on a case-by-case basis."

[ 160 ] I mention this case in particular because of what Feldman J.A. said for the Court about the sub-category of “aggravated manslaughter.” She stated, at paras. 33-34:

33 The first question is whether it is appropriate to label a subcategory of manslaughter as "aggravated manslaughter" for the purpose of sentencing. In my view, it is not useful to attach a label to a subcategory of the offence, then to try to pigeonhole the facts of any case into the label. Adding a descriptive label to a set of facts within the defined offence adds a level of complexity to the sentencing exercise that is both unnecessary and potentially diverting for the court and could lead to errors. Nor do I read this court's decision in Clarke as adopting that approach. In that case, after considering all of the aggravating factors, the court concluded:

In light of these aggravating factors, we agree that the proper range for this offence and this offender is 8 to 12 years imprisonment.

34 The exercise in each case is to impose a sentence that fits the facts and circumstances of the particular case and the particular offender. Part of that exercise is to impose similar sentences for similar offences and offenders. However, I would reject the concept of naming subcategories of manslaughter for the purpose of comparing cases and imposing similar sentences, and instead compare the circumstances of each situation on a case-by-case basis.

[ 161 ] The fact is that even life imprisonment has been imposed in particularly serious cases. In Cheddesingh, the Supreme Court of Canada upheld such a sentence. The Court noted that, like any maximum penalty, it would be imposed rarely, and would only be appropriate if the offence is of sufficient gravity and the offender displays sufficient blameworthiness. The court emphasized that concepts such as terms such as "stark horror", "worst offence" and "worst offender" in imposing a life sentence add nothing to the analysis and should be avoided. As is always the case with sentencing, the inquiry must proceed on a case-by-case basis.

[ 162 ] Sentences of less than life imprisonment, but more than 12 years have also been imposed in manslaughter cases, including in Atherley .

[ 163 ] In this case, the offence is of extreme gravity, and the offender displays a high level of blameworthiness. I do not suggest that a life sentence should be imposed on him, but I do think that in all of the circumstances, a sentence well in excess of 12 years is necessary to adequately denounce Mr. Clarke’s conduct, to deter him and others, to separate him from society, and to promote a sense of responsibility in him for the harm done to victims and an acknowledgment of it. In my view a sentence of 18 years is the shortest sentence that can accomplish those ends.

DISPOSITION

[ 164 ] I find that Mr. Clarke meets the prerequisites for both a dangerous offender and a long-term offender, and I find him to be a long-term offender. As a result, I sentence him to a period of imprisonment, and order him to be subject to long-term supervision for a period of ten years.

[ 165 ] The period of imprisonment will be as follows:

Count 1 – manslaughter: 18 years, less 8 years to reflect approximately 4 years of pre-sentence custody, or 10 years

Count 2 – unlawful confinement: 10 years concurrent

Count 3 – robbery: 18 years imprisonment concurrent, less 8 years to reflect approximately 4 years of pre-sentence custody, or 10 years

Count 4 – use of an imitation firearm: 10 years concurrent

[ 166 ] To be clear, the total sentence imposed on the offender after taking pre-sentence custody into consideration is ten years.

[ 167 ] I strongly urge the authorities to give serious consideration to the recommendations made by Dr. Wilkie and Dr. McMaster concerning institutional treatment of the offender and the conditions for his ultimate release into the community.

M. Dambrot J.

RELEASED: June 15, 2012

Criminal Record of Andre Clarke – Appendix A

Date of Conviction

Offences

Sentence Imposed

Transcript or Synopsis

Offence date and Summary of Facts

June 12, 1989

B & E and theft

12 months probation and 50 hours community service

N/A

N/A Clarke told Wilkie that he and 4 or 5 friends entered a residence and stole video games. He told her that the decision to commit the B & E was spontaneous. He told her that he and the same group of friends had committed a prior B & E together to steal video games (pp. 13-14) .

May 13, 1991

(1) PPOBC over $1000 (2) Attempt obstruct justice

(1) time served and 42 days open custody (2) 12 months probation and restitution ($288)

N/A

N/A Clarke told Wilkie that he did not recall any details about these offences (p. 14).

July 4, 1991

(1) Fail to appear (2) Assault (3) FTC recognizance

12 months probation on each charge concurrent

N/A

N/A Clarke told Wilkie that the assault happened in a store – he raised his fists at an employee and was “messing around” (p. 14). He could not recall anything else. Clarke made similar comments to McMaster (p. 9).

August 26, 1991

Possession of unregistered restricted weapon

6 months open custody

N/A

N/A Clarke told Wilkie that he was in possession of a handgun which he bought from a peer. He brought the gun to school and the police found it (p. 14).

August 4, 1992

(1) PPOBC under $1000 (2) Theft under $1000

Time served (2 months) and 2 years probation on each charge concurrent

Probation order only Tab5 Application Record s. 752.1

Offence date of April 30, 1992 for both offences. Clarke told Wilkie that he stole a car and went for a joyride. Police searched his pockets for stolen keys. He told her he had stolen cars 5 times prior. He had a device from Detroit that made it easier to steel cars (p. 14).

December 24, 1992

Robbery (x2)

One day secure custody on top of time served (7 months) and 2 years probation Firearms prohibition for 5 years

Synopsis and probation order Tab 6 Application Record s. 752.1

Clarke pleaded guilty to 2 robberies with offence dates of August 18, 1991 and August 22, 1991. In the first robbery, Clarke and 4 other males robbed a Macs convenient store. Prior to entering, it was decided that Clarke and another male (both in possession of handguns) would rob the victim at the cash register and take the money while the other 3 males would grab cartons of cigarettes. Once inside the store, Clarke produced a handgun, walked over to the victim and placed the gun against the victim’s head and walked the victim to the cash register and demanded money. They took approx $100 and 20 cartons of cigarettes and then fled the store and sped away in a vehicle. In the second robbery, Clarke and 2 other males robbed a Becker’s. Clarke was armed with a .22 calibre starters pistol that had been altered to fire ammunition. Clarke and another male entered the store. Clarke approached the victim and pointed the firearm at him and stated “this is a fucking robbery open the cash register.” The victim complied. Money and cigarettes were taken. NOTE: Clarke tells Wilkie that he also committed a robbery of a donut store and that he had a gun during that robbery but it was not loaded – just used as a means of intimidation (see pp. 16-17). He also admitted to her that when he committed the convenience store robbery, he had a loaded handgun (see p. 17) Also note that when asked by McMaster about holding a gun at the victim’s head in the first of the two robberies, Clarke did not deny doing this and said he did not feel anything when he did it and said that he did not have any concern. He was just there to get the money (p. 9).

January 20, 1994

(1) Conspiracy to commit robbery (x2) (2) Robbery (x3) (3) Use of firearm (x2) (4) possession of prohibited weapon (5) possession of unregistered restricted weapon (6) PPOBC over $1000 (x3) (7) disguise with intent (x2)

(1-2) 4 years and 6 months concurrent (3) 1 year consecutive (4) 1 year concurrent (5-7) 6 months concurrent Firearms prohibition for life Note: statutory release date of September 18, 1997

Transcript Tab7 Application Record s. 752.1

Clarke and 4 other males were part of an organized group who planned and took various steps towards the goal of robbing a branch of the Bank of Nova Scotia. They agreed to rob that bank and conspired together between March 14, 1993 and May 30, 1993 . Clarke admitted to being part of that conspiracy (p. 9). The bank was never robbed. Between March 14, 1993 and June 30, 1993, Clarke and other men conspired together to rob the Secul Credit Union. This conspiracy came to light as a result of a wiretap investigation. The credit union was never robbed. Clarke was in possession of a stolen 1991 Honda Accord sometime between and including April 24 and April 26, 1993. On April 29, 1993, Clarke and another male robbed a CIBC. They were both armed with loaded handguns and both disguised their faces. They demanded cash from an employee and Clarke robbed her while the other male remained by the front doors and ensured no one could enter or exit the bank. Clarke confessed to this robbery after his arrest on June 30, 1993. On May 10, 1993, Clarke and 2 other males attended a Becker’s store. Clarke was driving a stolen car that day and he was the lookout while the other 2 men entered the store, approached an employee, pointed handguns at him and ordered him to the floor at gun point and forced him to open his cash register. On May 11, 1993, Clarke and other males robbed a TD bank. Clarke had a gun which he pointed to the employees and said “get on your knees”. He then put the gun to the back of the complainant and ordered her into the vault and once there, said “you have ten seconds to open the safe” and then pointed the gun to her forehead and started counting backwards from ten. About $3100 was taken from the bank (that being the money found in Clarke’s bedroom). On June 30, 1993, a search warrant was executed at Clarke’s residence and officers located a .22 calibre semi-automatic handgun in Clarke’s bedroom as well as $3100 of cash (proceeds of crime from a bank robbery). The handgun had a clip with 4 live rounds of ammunition, with one in the chamber making it ready to fire. Clarke was arrested and gave a confession implicating himself to the robbery of the TD Bank. As a result of his December 1992 conviction, Clarke was the subject of a firearms prohibition and therefore was in breach of that prohibition. Pursuant to Garcia and Silva, the facts of other robberies committed by Clarke while he was a youth in the winter and spring of 1993 were read into the record. February 2, 1993 – robbery of a TD Bank by Clarke and another male who were both disguised. Clarke was armed with a sawed off shotgun and said “nobody move, this is a hold up, don’t mess around.” The other male then removed a revolver from a knapsack and then threw the knapsack at a teller and told her to fill it. Clarke then went to the rear of the teller’s wicket and filled his pockets with cash. They left the bank with over $10, 0000. February 7, 1993 – Clarke and 4 other males robbed a McDonald’s. It was decided that Clarke would act as lookout while the others who had a sawed off shotgun and a revolver would commit the robbery. February 10, 1993 – Clarke and 2 other males robbed a Royal Bank. They were disguised. Clarke was armed with a sawed off shotgun and the others had a handgun. They entered the bank and confronted the employees and customers and ordered them to the ground. Clarke forced the manager at gun point to the vault and the other males filled gym bags with cash. As they left the bank, Clarke brandished the shotgun and yelled out that they were the Scarborough Bandits. $46,000 was stolen. February 12, 1993 – Clarke and another male robbed a CIBC. Clarke had a sawed off shotgun and the other male had a handgun. Clarke told one of the employees to lay on the ground and to open the vault. She tried to explain that she could not do so and Clarke pointed the shotgun at her and said “if you don’t open the vault, I’ll blow your fucking head off.” Money was taken and then the men fled. Clarke told Wilkie that in 1993, he met two individuals who were interested in being involved in bank robberies. He said that one of the individuals had been staking out a bank and that he had access to a shotgun. They planned the robberies over the period of about one month. During the first robbery, he had a gun and the others got the money. He could not recall anything else about the robbery but recalled leaving the bank with $58,000 (p. 19). Clarke told Wilkie was part of the Scarborough Bandits (p. 20). Clarke denied that the guns were loaded during any of the bank robberies (p. 20). Recalled, he plead guilty to the loaded firearm being used and the gun found in his bedroom was loaded and ready to fire.

July 7, 1999

FTA court

$200 fine

Synopsis Tab 8 Application Record s. 752.1

Clarke was arrested on June 4, 1998 and charged with cause disturbance and assault with intent to resist arrest. He was held for a show cause hearing and released on bail. Clarke did not attend court on April 14, 1999 and a bench warrant was issued for his arrest.

September 11, 2003

PPOBC over $5000

4 months jail

Synopsis Tab 9 Application Record s. 752.1

On January 10, 2001, Clarke was in possession of 5 rare collectable baseball cards valued at approx. $186,000. He tried to sell the cards to a baseball card dealer and was arrested as the cards had been fraudulently obtained. Clarke told Wilkie that he was approached with the baseball cards and said that he took the opportunity to supplement his income by trying to sell them (p. 21). Clarke told McMaster that in 2000, acquaintances of his gave him stolen property to sell and he would do so for extra money (p. 13). He also told McMaster that between 2004 and his arrest in 2008, he sold stolen property (p. 14).

November 6, 2003

(1) FTC recognizance (2) Attempt theft under $5000 (3) Causing a disturbance

(1) 60 days jail consecutive to sentence being served and 12 months probation (2) 90 days jail on top of 17 days PTC concurrent to count 1 but consecutive to sentence being served (3) 1 day concurrent

Synopsis and probation order Tab 10 Application Record s. 752.1

On July 30, 2003 at approximately 3:30 am, Clarke jacked up a car and removed the tires and rims. When police arrived on scene, he fled. At the time of this incident, Clarke was on bail. His sister, Alisha Williams, was his surety. One of the conditions of Clarke’s bail was that he observe a curfew from 6 pm to 6 am with certain exceptions. He was in breach of curfew on July 30, 2003 by being out at 3:30 am. On July 28, 2003, police attended a residence as a result of a noise complaint. Clarke was hostile towards police. Clarke yelled and swore loudly when police attempted to arrest an individual who was later identified as Clarke’s father. Clarke told McMaster that his step-father threw a party and he was there. His step-father was drunk when police arrived. He also said that his sister let him stay out past his curfew to go to the party (p. 13).

November 1, 2004

PPOBC

7 days PTC noted Suspended Sentence and 12 months probation

Synopsis and probation order Tab 11 Application Record s. 752.1

On May 20, 2003, Clarke entered a motor vehicle as police arrived to the scene of break and enter. When the vehicle was found, it was determined that the plates were stolen property. Clarke’s fingerprints were found on the license plate.

COURT FILE NO.: 4-430/09

DATE: 20120615

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N : HER MAJESTY THE QUEEN – and – ANDRE CLARKE REASONS FOR JUDGMENT DAMBROT J.

RELEASED: June 15, 2012