Court File No. 09-0268
ONTARIO
Superior Court of Justice
HER MAJESTY THE QUEEN
-vs-
STEVEN NOEL WICE
REASONS FOR DECISION
HEARD BEFORE THE HONOURABLE JUSTICE E. QUINLAN
ON THE 18TH DAY OF MAY, 2012,
AT COURTROOM NO. 3, Barrie COURTHOUSE,
Barrie, Ontario
APPEARANCES:
R. WILLIAMS FOR THE CROWN
N. WILLIAMS FOR STEVEN NOEL WICE
Page: 1
NCC # 3363
R. v. Wice, Steven Noel - Reasons for Decision
18 May 2012
DANGEROUS OFFENDER APPLICATION
REASONS FOR DECISION
QUINLAN J.: (Orally)
OVERVIEW
[1] On June 18, 2010, Mr. Wice pleaded guilty to assault with a weapon and aggravated assault. The Crown sought a court-ordered assessment pursuant to s.752.1 of the Criminal Code of Canada[^1]. Following a return of the assessment report, the Crown advised that the consent of the Attorney General for Ontario was being sought to bring an application under s.753. Consent was given and Mr. Wice is now before me on an application to have him declared a dangerous offender.
[2] Although the plea was not taken before me, in view of the fact that the defence was not ready to proceed with the hearing when originally scheduled and the later unavailability of the judge who took the pleas, that judge declared herself unavailable to continue the proceedings under s. 669.2 of the Criminal Code and the matter was placed before me.
[3] The Crown originally sought to have Mr. Wice sentenced to an indeterminate period of detention. As a result of the report of the defence psychiatrist, Dr. Pallandi, and the evidence of the court-appointed psychiatrist, Dr. Rootenberg, the Crown’s position changed. The Crown now seeks to have Mr. Wice sentenced to a fixed sentence in the penitentiary and subjected to a long-term supervision order (LTSO) for ten years.
[4] The defence agrees that the offender should be sentenced to a fixed sentence to be followed by an LTSO, but seeks a three-month custodial sentence and a five-year LTSO. Mr. Wice, in a letter filed with the court, has set out various combinations of fixed sentence and LTSO that I will outline later.
[5] Mr. Wice has been in custody since his arrest on December 2, 2008. Counsel agreed that this period is properly to be considered as pre-sentence custody, but disagree on the amount of credit that should be given.
PREDICATE OFFENCES
[6] On October 20, 2008, at about 6:00 p.m., the victim, Charles Goudie, was at the Salvation Army Men’s Hostel in downtown Barrie with his friend Steven Smits. While having his meal, Mr. Goudie overheard someone say “faggot”. Mr. Goudie turned around and asked the offender if he was speaking to him. The offender, who was known by his street name “Mischief”, stood up and became confrontational with Mr. Goudie. Mr. Goudie and Mr. Smits left the Salvation Army to avoid a confrontation. The offender followed them into an alleyway and produced a pocket knife. He held it several inches away from Mr. Goudie’s face, making the gesture of an “X” with the knife, saying, “I’m going to leave my mark.” The offender became confrontational with Mr. Smits and punched him in the side of the head. Mr. Smits grabbed the offender and punched him repeatedly, telling the offender to leave them alone. Mr. Smits and Mr. Goudie left the area.
[7] The next day, Mr. Goudie and Mr. Smits were again at the Salvation Army for dinner. They were again confronted by the offender in a parking lot where approximately twenty people were present. The offender approached Mr. Goudie, holding the same pocket knife in his hand. He said, “I’m going to cut your face up and you won’t be so pretty, pretty boy.” Mr. Goudie and Mr. Smits ignored the offender and continued into the hostel.
[8] Two days later, on October 23, 2008, Mr. Goudie and another friend attended for lunch at the same hostel. They were approached by the offender, who again pulled out the knife and began to yell at Mr. Goudie, saying that his “tough friend was not around, come into the alley and finish this once and for all.” Mr. Goudie ignored the offender and tried to walk past him. The offender punched Mr. Goudie in the face and then fled on foot. Mr. Goudie called Mr. Smits, who began looking for the offender. Mr. Smits found the offender and grabbed him by the jacket. There was a physical confrontation. The offender produced a knife and stabbed Mr. Smits in the neck. The wound was approximately 2.5 cm wide and 2.3 cm deep. It required four stitches to close. There was no damage to any underlying structures. Mr. Smits remained at the hospital for three hours for treatment of the wound.
[9] Mr. Wice was contacted by police and evaded them for approximately six weeks until his arrest in Toronto on December 2, 2008.
[10] Both Drs. Rootenberg and Pallandi interviewed Mr. Wice concerning his version of the predicate offences. Mr. Wice told both psychiatrists that he was standing up for his friend and “took it too far”. He acknowledged having lost his temper and said he didn’t think he really wanted to stab Mr. Smits. Mr. Wice’s position was that he was not trying to kill Mr. Smits, that “it just happened”.
[11] Mr. Wice told Dr. Rootenberg that around the time of the offences, he was consuming beer, “weed” and “a line of coke”. Although he was using ecstasy several days per week, Mr. Wice did not believe that he consumed any that day. The offender told Dr. Pallandi that he was not under the influence of any intoxicating substance at the material times.
[12] Dr. Rootenberg agreed that the comments Mr. Wice made to both him and to Dr. Pallandi demonstrated remorse.
EVIDENCE AT THE HEARING
Dr. Jonathan Rootenberg
Qualifications
[13] Dr. Jonathan Rootenberg is a forensic psychiatrist. He was the staff psychiatrist in the forensic assessment, consultation and treatment program at Whitby Mental Health Centre, now known as Ontario Shores Centre for Mental Health Sciences, from 1997 to 2007. Since 1999, he has been the staff psychiatrist in the Law and Mental Health Program at the Centre for Addiction and Mental Health (CAMH). He is also a consultant for various mental health programs.
[14] Dr. Rootenberg has been involved in at least 18 dangerous offender and long-term offender assessments. He has been qualified to provide opinion evidence in the area of forensic psychiatry. The defence took no issue with his qualifications.
[15] In view of his extensive qualifications as set out in his curriculum vitae and in his evidence, I determined that he was qualified to provide expert opinion evidence in the area of forensic psychiatry.
Assessment
[16] Dr. Rootenberg completed a thorough assessment report dated February 10, 2011. He adopted its contents in the course of his evidence, adding information and opinions as a result of further interviews with Mr. Wice in the course of the hearing before me. My review of his evidence includes the opinions set out in his report together with his viva voce evidence.
[17] To prepare his report, Dr. Rootenberg referred to a wide range of information. He conducted two clinical interviews with Mr. Wice in December 2010. A psychological consultation report was completed at Dr. Rootenberg’s request by Dr. John Arrowood. Dr. Arrowood obtained collateral information from Mr. Wice’s mother, Colleen, two pastors and a co-ordinator for street youth in Toronto. Dr. Rootenberg referred to information relating to Mr. Wice’s criminal record, past and predicate offences, and various institutional records.
[18] Before testifying, Dr. Rootenberg interviewed Mr. Wice again, spoke to staff at Central North Correctional Centre (CNCC) where Mr. Wice has been detained since his arrest, and reviewed institutional records from CNCC.
[19] At the time of preparation of his report in February 2011, Dr. Rootenberg stated that, “[W]hile the ‘possibility’ of successful treatment and alternative sanctions exist, they appear to be more theoretical than practical.” As a result of the further interview with Mr. Wice and the review of institutional records from his time in remand, Dr. Rootenberg’s opinion at the time of testifying was that there is now a reasonable expectation that the public can be adequately protected against the commission by Mr. Wice of a serious personal injury offence so long as “highly vigilant measures” are put in place to manage him in the community.
Offender’s Antecedents
1. The Offender’s Circumstances
[20] Dr. Rootenberg reviewed court and institutional records and interviewed Mr. Wice. I have reviewed the various records filed on this application. I agree with Dr. Pallandi that Dr. Rootenberg’s summary of Mr. Wice’s circumstances is accurate. From that summary, I find the following to be relevant.
[21] Mr. Wice is 32 years old. He has been in custody since his arrest on December 2, 2008.
[22] Mr. Wice was raised in a family environment that was at times physically abusive. Mr. Wice had a difficult relationship with his father. Both Mr. Wice’s father and mother were victims of one or more of his young offender offences. Mr. Wice encountered problems as a child and became involved with alcohol, drugs and gangs as an adolescent. Before Mr. Wice left the family home at age 15, there had been a number of instances of extreme child-parent conflict. He has been in and out of custody since the age of 15.
[23] Mr. Wice described himself as a “special needs kid”, who suffered from Attention Deficit Hyperactivity Disorder. Mr. Wice’s aggressive behaviour began in the early grades. He was suspended frequently for fighting and for threatening teachers. Mr. Wice was convicted of assaulting one vice-principal and threatening another with death. In high school, he had problems with discipline, aggression, theft, truancy and disruptive and rude behaviour. Since his detention on the predicate offences, Mr. Wice has completed his high school education.
[24] Mr. Wice has had little opportunity for employment, given the time that he has spent in custody. Other than brief jobs in a factory and as a landscaper, his steadiest employment has been as a cleaner and server at CNCC since his detention in December 2008. Upon release, Mr. Wice hopes to attend Bible College or a culinary arts program and to work with a mission or church.
[25] Mr. Wice is involved in a long-term relationship that began shortly before his admission to custody for the predicate offences and has continued while in jail. His domestic assault conviction in 2005 related to his only other long-term relationship.
[26] Although Mr. Wice denied a previous psychiatric history, institutional records indicate that he has a history of suicide attempts and self-mutilation when he gets angry. Mr. Wice took Ritalin from an early age until his arrest in 2008.
[27] In addition to suffering from asthma and having sustained numerous head injuries, “mainly during fights”, in 2011 Mr. Wice was diagnosed with testicular cancer. He underwent surgery and chemotherapy. Dr. Pallandi’s report noted that close follow-up has been recommended and there is the possibility of future surgery.
[28] Although the defence position appears to be that alcohol has not been a significant factor in Mr. Wice’s offending, the records and reports of both psychiatrists belie this.
[29] Mr. Wice has regularly consumed alcohol, marijuana and hash oil since the age of 15 or 16. He reported that by 18 or 19, he was also using cocaine, ecstasy and “crystal meth”, as well as trying various other illicit substances. Up to several weeks before his arrest for the predicate offences, he was still consuming alcohol, marijuana and ecstasy. Mr. Wice acknowledged his need for substance abuse treatment.
[30] Mr. Wice admitted to having “anger management difficulties” and being involved in numerous fights from the ages of 13 to 30 and to have at various times carried knives. He acknowledged his need for anger management counselling.
2. Prior Criminal History
[31] Mr. Wice’s criminal record is set out herein:
| Date | Offence | Sentence |
|---|---|---|
| 1996-03-12 (Youth Court) | Uttering Threats Assault |
6 months open custody and probation 6 months on each charge concurrent |
| 1996-12-10 (Youth Court) | Theft Under $5,000 | Compensation $25 |
| 1997-03-21 (Youth Court) | Mischief Uttering Threats |
45 days open custody and probation 1 year 45 days secure custody and probation 1 year |
| 1998-03-04 (Youth Court) | Uttering Threats Fail to Comply with Disposition Uttering Threats Sexual Assault Assault with a Weapon |
14 months secure custody and probation 1 year and (4 months pre-sentence custody) and prohibited firearms, ammunition or explosive substances for 5 years 14 months secure custody and probation 1 year on each charge concurrent and concurrent and (4 months pre-sentence custody) |
| 1999-11-23 | Assault Peace Officer | 60 days and probation 1 year |
| 2000-05-24 | Armed Robbery (2 charges) | 6 months and probation 2 years (7 months pre-sentence custody) Mandatory prohibition order sec. 109 CC |
| 2001-03-22 | Armed Robbery Fail to Comply with Probation Order |
2 years and probation 3 years and mandatory prohibition order sec. 109 CC 6 months concurrent |
| 2002-07-19 | Statutory Release | |
| 2002-10-08 | Traffic in Schedule II Substance Possession of a Schedule II Substance for the Purpose of Trafficking |
30 days on each charge concurrent |
| 2002-12-30 | Statutory Release Violator Recommitted |
|
| 2003-01-23 | Statutory Release | |
| 2003-10-16 | Assault | Suspended sentence and probation 1 year and (126 days pre-sentence custody) |
| 2003-12-17 | Uttering Threats | 7 days Probation 18 months and (14 days pre-sentence custody) and discretionary prohibition order sec. 110 CC for 10 years |
| 2004-05-05 | Assault with a Weapon Uttering Threats Carrying Concealed Weapon Fail to Comply with Probation Order Fail to Comply with Probation Order |
11 months and (129 days pre-sentence custody) and probation 3 years and discretionary prohibition order sec.110 CC for 10 years 11 months concurrent 6 months concurrent 7 months concurrent 4 months concurrent |
| 2006-03-13 | Assault with a Weapon Uttering Threats Escape Lawful Custody Fail to Comply with Probation Order |
Suspended sentence and probation 3 years and (282 days pre-sentence custody) and mandatory prohibition order sec. 109 CC |
| 2006-06-02 | Take Motor Vehicle WOC | 1 day and (47 days pre-sentence custody) and probation 12 months |
| 2006-12-11 | Assault | Suspended sentence and probation 1 year and (191 days pre-sentence custody) and discretionary prohibition order sec. 110 CC for 10 years |
| 2007-03-15 | Robbery | 7 months and (71 days pre-sentence custody) and probation 2 years and discretionary prohibition order sec. 110 CC for 10 years |
| 2008-04-28 | Robbery | 1 day and (8 months pre-sentence custody) and probation 2 years |
[32] Mr. Wice told Dr. Rootenberg that he was probably drunk or high when he committed most of the offences, and that the robberies were probably undertaken so that he could ultimately purchase alcohol or drugs. He denied recollection of the events surrounding many of his previous convictions and refused to discuss circumstances in relation to others.
[33] In contrast, Dr. Pallandi noted that Mr. Wice “was relatively non-defensive and able to provide generally coherent accounts of his offences for which he has been convicted”. However, Dr. Pallandi did not note the accounts in his report. Mr. Wice also indicated to Dr. Pallandi that many of his offences were related to or committed while under the influence of intoxicants.
[34] Counsel agreed that where only a Crown synopsis has been provided, I should only consider as proven the conviction and not the facts underlying same unless there has been an admission of the facts leading to the conviction by Mr. Wice. Set out below are the facts accepted by Mr. Wice as being substantially accurate disclosed in transcripts of pleas of guilty, and facts relating to a past offence acknowledged by Mr. Wice in his interviews with Dr. Rootenberg. I find I can rely on these in deciding this application as their accuracy is supported by the offender’s acknowledgement of same.
[35] On March 22, 2001, Mr. Wice pleaded guilty to robbery and breach of probation. Mr. Wice stole cigarettes from a convenience store. When the store owner chased Mr. Wice, Mr. Wice threw a package of cigarettes at the store owner and then in turn, chased him. Mr. Wice pulled out a knife with a six-inch blade and threatened to kill the store owner. At the time, Mr. Wice was on probation for two counts of armed robbery. He received a total sentence of two years in the penitentiary and a mandatory weapons prohibition.
[36] On October 8, 2002, Mr. Wice pleaded guilty to trafficking and possession for the purpose of trafficking cannabis sativa. He was sentenced to a concurrent sentence of 30 days on each charge.
[37] Although Mr. Wice told Dr. Rootenberg that he was uncertain about the circumstances of the October 16, 2003 conviction for robbery, noting that most of the time he was high or drunk, a transcript of that guilty plea was filed as an exhibit. On June 12, 2003, at 4:00 a.m., Mr. Wice and another male approached a hot dog stand in Toronto. Mr. Wice asked the victim, the proprietor of the stand, for free hot dogs and pops because they were homeless. When the victim refused, the offender tried to enter the canopy surrounding the cart. The victim tried to push the offender and his associate away. Mr. Wice’s associate punched the victim in the head. Mr. Wice then punched the victim in the head, and he and his associate continued to punch the victim in the face. The victim was knocked to the ground and had his nose and glasses broken. The attack ended when a taxi driver intervened. The court took into account 126 days pre-trial custody and suspended sentence, placing Mr. Wice on probation for a year.
[38] On May 4, 2004, Mr. Wice pleaded guilty to weapons dangerous, two counts of assault with a weapon, uttering a death threat and failing to comply with probation. The incident involved threats to the offender’s mother and several bystanders. He chased a bystander while carrying a knife. Mr. Wice was on probation for other offences at the time. At the sentencing hearing, the offender’s lawyer noted that the offender was under the influence of ecstasy at the time of the offence. Mr. Wice told Dr. Rootenberg that he recalled the event. He described what happened in a summary fashion. He didn’t think he had been doing drugs or drinking at the time; he attributed his conduct to anger.
[39] Although there was no transcript filed in relation to his convictions on March 13, 2006 for assault with a weapon, utter threats, escape lawful custody and fail to comply with probation, Mr. Wice admitted those offences to Dr. Rootenberg. He acknowledged the domestic assault when he threatened his girlfriend and hit her. He tried to run while police were making other arrests after he was handcuffed. He told Dr. Rootenberg that he was high at the time.
[40] On March 15, 2007, the offender pleaded guilty to robbery. A transcript disclosed that he came upon a woman at a bank machine withdrawing money. He tried to grab things from her. During a struggle, the offender struck the victim with a closed fist on the side of her head, taking her cell phone and some money. The victim suffered slight swelling to her forehead. Mr. Wice minimized his involvement in his recounting of the events to Dr. Rootenberg. I am satisfied that the facts that were accepted at the guilty plea are the facts on which this court should rely on this application.
[41] In other respects, I am considering the findings of guilt and convictions on the criminal record filed, but not facts underlying them as set out in occurrence reports, synopses, or as recounted to, but not acknowledged by Mr. Wice.
3. Institutional History
[42] Mr. Wice spent time in a number of young offender and adult provincial custodial facilities and in the federal prison system in Millhaven and Kingston Penitentiary. Of the last twelve years, he has been in custody for approximately ten years.
[43] At the Millhaven Assessment Unit in June 2001, it was noted that substance abuse does not appear to have been a major component in Mr. Wice’s offending behaviour. This is contrary to the evidence filed on this application, and the information provided by Mr. Wice.
[44] During his time in the various institutions, Mr. Wice was involved in many instances of misconduct, including violence, threats of violence, verbal abuse, vandalism and non-compliant behaviour. He did not complete an anger management program and did not take a substance abuse treatment program.
[45] In 2002, Mr. Wice was released on parole from his federal sentence for two counts of armed robbery. He was placed on a residency condition to reside at the Keele Community Correctional Centre in Toronto. The residency condition was imposed in order to address Mr. Wice’s risk management needs after his release into the community. He encountered problems within a month by violating his non-association condition and through his deteriorating attitude.
[46] In December 2002, Mr. Wice was recommitted to custody for violating his statutory release. In addition, he breached probation orders on a number of occasions.
[47] Mr. Wice has been assessed as a maximum security offender based on his problematic institutional history, his criminal history and his lack of compliance with supervision. He did not complete any core programming while in the federal system.
[48] From 2004 to 2008, Mr. Wice was assessed as having “very high” risk needs. In 2008, Mr. Wice stated that he would not abide by non-association conditions on his probation, and acknowledged he liked to drink and had no intention of stopping.
[49] Throughout, Mr. Wice appears to have had significant problems with authority. Those problems continued into his relationship with his most recent probation and parole officer, Wayne Pentland. In his initial reporting, Mr. Wice swore at Mr. Pentland and walked out.
4. Collateral Information
[50] The offender’s mother, Colleen Wice, was interviewed for the purpose of the assessment report. She described her parenting style as physically abusive. She had mental health problems during Mr. Wice’s early years.
[51] Although Mr. Wice has had many behavioural problems, his mother has always been supportive of him and remained in contact during his many periods of custody. Ms. Wice was of the view that drugs and alcohol “definitely played a role” in her son’s criminal history.
[52] Ms. Wice minimized her son’s behaviour towards her and his father. She initially denied any violence or threatening behaviour towards her. When confronted, she stated that it had happened only once when the offender was “higher than a kite”. She did acknowledge his significant anger management difficulties and also reported a much improved attitude since his last attendance in jail.
[53] Derek Parenteau, the drop-in co-ordinator at the Evergreen Centre for Street Youth, also known as the Yonge Street Mission, worked with Mr. Wice for approximately five years before his current incarceration. He has noted significant changes in Mr. Wice and is open to the idea of Mr. Wice becoming a “peer mentor” once he is out of jail and stable in the community. Mr. Parenteau is of the view that Mr. Wice is committed to change and has developed insight and responsibility. He was of the view that he had “personally witnessed the transformation that [Mr. Wice] has been undergoing”. Mr. Parenteau was called to give evidence at this hearing. His evidence is outlined later in these reasons.
[54] Ejay Tupe, a pastor and volunteer at the Evergreen Centre for Street Youth, has known Mr. Wice since before his most recent incarceration. He has found Mr. Wice to have made major changes in his life. In his opinion, Mr. Wice is very genuine in his religious conversion and his faith. Mr. Wice expressed his willingness to Mr. Tupe to follow conditions such as a curfew and a 10-year parole order. Mr. Tupe is prepared to continue to assist Mr. Wice. His evidence is outlined later in these reasons.
[55] The Reverend Robert Cripps, pastor at the Summit Church and volunteer at the Evergreen Centre, met Mr. Wice after his admission to custody for the predicate offences. He has discussed with Mr. Wice the possibility of him becoming involved in mentorship of young people upon his release. In his opinion, Mr. Wice is remorseful and has taken responsibility for his charges. He has insight into his anger management and interpersonal difficulties.
5. Psychological Consultation
[56] Dr. Arrowood performed a psychological consultation at the request of Dr. Rootenberg. He interviewed Mr. Wice and performed a number of tests on him. Mr. Wice acknowledged that he has a “bad temper” and “not a lot of self-control”. Mr. Wice confirmed his lengthy history of substance abuse and the lack of programming for his issues. Although Mr. Wice appeared to accept responsibility for having committed the predicate offences, he did not express any particular concern for the victims. Dr. Arrowood found this to be consistent with an anti-social personality orientation.
[57] Dr. Arrowood administered a number of psychological tests. From those, he determined that Mr. Wice’s I.Q. is within the average range. He is capable of meaningfully participating in any treatment or educational programming. Mr. Wice does not experience any neurocognitive impairment.
[58] As noted in Dr. Arrowood’s psychological consultation report:
A review of Mr. Wice’s criminal history, along with the results of the clinical interview and psychological testing, support a diagnosis of Anti-social Personality Disorder. Additionally, clinical interviewing and personality testing support a diagnosis of Substance Abuse (likely in sustained full remission).
6. Diagnoses
[59] Dr. Rootenberg found that Mr. Wice did not suffer from a major mental illness. In his opinion, Mr. Wice meets diagnostic criteria for anti-social personality disorder, having at least six of the seven adult criteria for such a diagnosis; he also has narcissistic personality traits. Dr. Rootenberg is of the opinion that Mr. Wice also meets diagnostic criteria for a substance abuse disorder in relation to alcohol, cannabis and ecstasy, and may meet the criteria for substance dependence disorder.
[60] Treatment of anti-social personality disorder is difficult: such treatment primarily focuses on training in relation to anger management, social skills and vocational skills.
[61] Treatment of substance abuse or dependence disorders may involve both psychological and pharmacological treatment, that is, group therapy, relapse prevention training and Antabuse.
7. Risk Assessment
[62] Dr. Rootenberg employed actuarial methods of risk assessment. Such methods are strong predictors of long-term violence. Mr. Wice’s score on the Psychopathy Checklist – Revised (PCL-R) was 29. This places him just below the cut-off score of 30 that has been used to categorize psychopathy. Only twenty percent of male offenders in the standardization sample had higher scores. The standard error of measurement for this instrument is two to three points.
[63] The Violence Risk Appraisal Guide (VRAG) assesses the risk of general violent re-offending for male offenders. Mr. Wice’s score on the VRAG is 26, placing him in the 98th percentile compared to a large sample of male violent offenders. Seventy-six percent of the standardization sample who were in the same risk category re-offended within seven years of opportunity. Eighty-two percent violently re-offended within ten years of opportunity. Mr. Wice’s score on the VRAG places him in the second highest category of risk for violent recidivism, bin 8 of 9. The standard error of measurement is one risk category.
[64] Both the PCL-R and VRAG scores indicate that Mr. Wice is in a very high risk category to engage in future violent behaviour over the long-term.
[65] Dr. Rootenberg was of the opinion that Mr. Wice meets the criteria of a dangerous offender pursuant to both sections 753(1)(a)(i) and 753(1)(a)(ii).
[66] In considering whether there is a reasonable possibility of eventual control of the risk that Mr. Wice poses in the community, Dr. Rootenberg was of the opinion that, based on the clinical factors, and “assuming that they do not change significantly, that Mr. Wice remains at high risk of engaging in future violent offences and, based on his previous offences, these are likely to be contact offences”. At the time of writing his report, Dr. Rootenberg did not find cause for optimism with respect to Mr. Wice due to his serious problems with anti-social behaviour, his PCL-R score, and his serious problems with substance use. His concern was that the violent urges experienced by Mr. Wice are disinhibited by extreme anger and substance intoxication. Any expression of remorse and acceptance of responsibility and acknowledgement of the need for treatment could be solely expressions of remorse being made in the context of a dangerous offender application.
[67] Dr. Rootenberg’s opinion at the time of writing the report was that, although it would be theoretically possible to control Mr. Wice’s risk in the community, practically this did not appear to be the case. As noted by Dr. Rootenberg, “[w]hile the possibility of successful treatment and alternative sanctions exist, they appear to be more theoretical rather than practical.”
[68] Dr. Rootenberg testified that as a result of Mr. Wice’s anti-social personality disorder, he requires assiduous supervision and monitoring. In order to rein in his anti-social personality disorder, he needs a highly structured and supervised monitoring system; stringent, frequent reporting; random urinalysis; the verification of his activities across many domains, and attendance in programs. Mr. Wice should receive anger management training, social skills training, and training in the area of employment.
[69] It is Dr. Rootenberg’s opinion that time will tell if Mr. Wice’s pattern can be changed and if the management options have tangible benefits. Strict intervention is necessary to lessen the likelihood of Mr. Wice acting on his attitudes. Mr. Wice’s abstinence for the past almost three-and-a-half years bodes well. Having said that, Mr. Wice would have far less access to substances while incarcerated. His substance abuse disorder is a longstanding risk factor for Mr. Wice. He could benefit from a relapse prevention plan and random urine screens, given the major risk factor that substance use poses for him.
[70] Mr. Wice’s anti-social personality disorder plus his substance usage adds to the relapse risk. Although Mr. Wice has made it clear that he views his substance use as highly problematic, his challenge will come once he is given access to it.
[71] Dr. Rootenberg has more optimism now in relation to whether Mr. Wice’s risk is manageable. There has been tangible evidence in the last several years that Mr. Wice has looked at improving on his risk factors through a risk management plan and by increasing his supports in the community. Mr. Wice has made changes since December 2008 in the way he functions in an institutional setting. His oppositional, aggressive, threatening behaviour and his failure to follow supervision have not been seen during his last incarceration. He has not engaged in frequent misconduct. The diagnosis of his testicular cancer could fundamentally change his ability to act out violently, although it does not change his known high risk factors.
[72] Dr. Rootenberg testified that it is positive that Mr. Wice has obtained a job, completed high school and undertaken Bible study. In addition, many of his supports that were available to him in 2010 are still in place. The best gauge of whether Mr. Wice’s risk is manageable will be shown by monitoring once he has an opportunity to offend.
[73] In Dr. Rootenberg’s opinion, Mr. Wice is closer to the point where he can reconcile his stated words with what he has done. However, there still needs to be a verified, high degree of vigilance and very close monitoring to attenuate the high risk he poses to reoffend.
[74] If Mr. Wice is found to be a dangerous offender and sentenced to a fixed sentence with an LTSO, a lengthy period would be required to test and ensure that he does not relapse.
[75] The highly vigilant measures set out in Dr. Rootenberg’s report, including residence in a halfway house with supervision by specially trained corrections personnel; restrictions on movement and association with anti-social peers, including an early curfew; restrictions on activity, including total abstinence with respect to all substances, monitored by random breathalyser and urinalysis testing; assessment and treatment by Corrections and mental health professionals, including substance use and anger management programming; frequent and highly structured contact with his supervising officer and a prohibition on possession of weapons would combine to lower Mr. Wice’s risk, particularly as he transitions from his current custodial setting.
[76] Although Mr. Wice may not consider that he needs controls, given his particular personality construct, Dr. Rootenberg stated that controls are required to manage his risk.
[77] To date, there has not been the opportunity to ascertain how Mr. Wice will react in a programming setting because he has not had opportunity to attend programming, given his remand status. Dr. Rootenberg confirmed that Mr. Wice advised him during the course of the hearing that he is concerned about returning to a penitentiary, as the potential for a serious assault on him remains high. Mr. Wice told Dr. Rootenberg that he would respond to this by being placed in segregation, even if that resulted in his inability to receive programs.
8. Mr. Wice’s Condition at Time of Assessment
[78] As noted, Mr. Wice has been incarcerated at CNCC since December 2, 2008. He spent almost a year in the segregation unit at his request. By December 2010, Mr. Wice’s daily routine mainly involved serving and cleaning, and Bible studies and meditation. He completed his high school equivalency in March 2010. He is not eligible for programs due to his remand status, but he has read a number of self-help books. Unlike during his other attendances in jail, he has been attempting to get his life together.
[79] Mr. Wice has prepared a “Life Plan Risk Flow Chart” documenting the pros and cons of continuing with a criminal lifestyle versus continuing on a path that involves a life free of crime. A “life plan” that Mr. Wice prepared included long and short-term goals, and possible career objectives of becoming a Christian Ministry Worker, owning his own business or becoming a chef. Mr. Wice noted that he hopes to graduate from college and have a family.
Dr. Pallandi
Qualifications
[80] Dr. Derek Pallandi is a forensic psychiatrist. A curriculum vitae of Dr. Pallandi was not filed. His report indicated that he is a staff psychiatrist in the Law and Mental Health Program at CAMH, and a consultant psychiatrist at Waypoint Centre for Mental Health Care, Penetanguishene. In addition, he is a lecturer at the University of Toronto.
[81] He conducted an assessment and prepared a report at the request of the defence. His report was filed as an exhibit. Dr. Pallandi did not testify and the Crown did not seek to cross-examine him on his report. Both counsel asked that I rely on Dr. Pallandi’s report.
[82] For the purpose of preparing his report, Dr. Pallandi examined Mr. Wice in July 2010, January 2012, and February 2012. He reviewed disclosure, up-to-date institutional records gathered at CNCC, up-to-date medical records, the court-ordered assessment of Dr. Rootenberg and a psychosocial assessment requested by Dr. Pallandi. For that psychosocial assessment, Mr. Wice’s romantic partner, mother and two pastors were contacted.
Agreement Between Psychiatrists
[83] Dr. Pallandi variously described Dr. Rootenberg’s report as comprehensive, thorough and balanced. Dr. Pallandi accepted the factual history of Mr. Wice outlined by Dr. Rootenberg. Dr. Pallandi determined that, “Dr. Rootenberg’s review of the documentation and analysis of Mr. Wice’s case appears to balanced, obviously thorough, and comprehensive.”
[84] Dr. Pallandi accepted the early and developmental history as reported by Dr. Rootenberg and the maladaptive behaviour, legal problems and limited ability of Mr. Wice to profit from supervision or programming.
[85] Dr. Pallandi considered that the information gathered by Dr. Rootenberg from collateral informants was extensive.
[86] Dr. Pallandi accepted that “Dr. Rootenberg accurately described an early onset of anti-social behaviour persisting into adulthood”, with a “substantially elevated PCL-R score” and “co-morbid substance misuse”. In Dr. Pallandi’s view, Dr. Rootenberg fairly opined that “a number of the suggested interventions which might temper Mr. Wice’s risk would be available to him in the community” but fairly indicated that “in order for Mr. Wice’s risk to be tempered in anything more than a ‘theoretical’ way, the management would require a number of extreme and highly vigilant measures."
[87] The risk assessment scores of the two psychiatrists were identical in every domain. Accordingly, Dr. Pallandi took no issue with Dr. Rootenberg’s actuarial assessment of Mr. Wice’s risk.
[88] Both psychiatrists found that Mr. Wice suffers from anti-social personality disorder and substance abuse disorder that is currently in remission in a controlled environment. Both psychiatrists agreed that Mr. Wice is at high risk to violently re-offend and that anti-social personality disorder cannot be treated, but that efforts must be made to control its manifestations and impact with a comprehensive and intensive plan.
Assessment
[89] Dr. Pallandi noted that Mr. Wice’s attitude and behaviour during his incarceration at CNCC for the predicate offences has been “in substantial contrast” to his earlier periods of incarceration. He has been free from institutional misconduct, engages in Bible study, has appropriate and pro-social visitors, and has availed himself of opportunities provided to him.
[90] Dr. Pallandi reviewed medical records confirming Mr. Wice’s testicular cancer and the course of treatment.
[91] In the course of interviews with Dr. Pallandi, Mr. Wice accepted full responsibility for most, if not all, of his criminal record and his current circumstances. Dr. Pallandi found Mr. Wice’s insight and judgment to be reasonably well-developed. Mr. Wice articulated his plans to address the risk of recidivism and indicated his willingness to meet any condition. Mr. Wice provided a risk management plan to Dr. Pallandi that was comprehensive in nature.
[92] Collateral information obtained for the purpose of the defence assessment report was obtained from Sandra Berardi, Mr. Wice’s girlfriend. They met just prior to his arrest on December 2, 2008. She has a very positive relationship with Mr. Wice and stated that he has accepted responsibility for his actions. However, Ms. Berardi knew little about Mr. Wice’s involvement with the criminal justice system, or of his history of alcohol and substance misuse. In addition, Mr. Wice did not speak to Ms. Berardi about participating in programs for anger management or substance abuse.
[93] Mr. Wice’s mother, Colleen, was also interviewed. She found Mr. Wice to be a good support for her when she was coping with her husband’s illness and death. It was Ms. Wice’s opinion that Mr. Wice’s girlfriend, his involvement with Bible studies and the loss of his father have motivated Mr. Wice to change.
[94] Her son told her of his concern about living in a halfway house and the pressure to use substances. Mr. Wice did not speak to her about seeking treatment for substance misuse or anger management. It was her view that counselling or treatment for substance use is not required. Ms. Wice is willing to have her son live with her upon his release.
[95] Reverend Robert Cripps spoke of Mr. Wice’s “transformation”. Although Mr. Wice spoke to Rev. Cripps about his intentions to seek employment, he did not mention participation in anger management or substance use programs.
[96] Ejay Tupe of the Evergreen Centre was also contacted. He noted the changes in Mr. Wice and stated that Mr. Wice had secured employment as a cleaner through Rev. Cripps and plans to reside with his girlfriend, do seminary work and volunteer at the Evergreen Centre. Mr. Wice had not advised Mr. Tupe that he plans to attend for anger management or substance use counselling.
[97] Dr. Pallandi agreed with Dr. Rootenberg’s risk assessment and diagnoses. Where they differed was in relation to the manageability of Mr. Wice’s identified risk. Dr. Pallandi concluded his report with the following comment: “I somewhat tentatively would suggest that Mr. Wice’s risk is so manageable with all of those elements that he himself has articulated in the foregoing sections.” [Emphasis in original] It is Dr. Pallandi’s opinion that a proposed release plan must be intensive, multi-faceted and stringent, and that Mr. Wice has “indicated a total willingness and commitment to every element of such a plan”.
Probation and Parole Officer
[98] The Crown called Wayne Pentland, a probation and parole officer for 25 years. He testified that Mr. Wice was an intensive supervision offender. Mr. Pentland supervised Mr. Wice from May 2008 until he lost contact with him in October 2008.
[99] During Mr. Pentland’s first contact with Mr. Wice, Mr. Wice was belligerent, arrogant and rude, trying to assert his authority. Mr. Wice’s attitude changed when Mr. Pentland told Mr. Wice that he was not going to breach him for missing their second meeting. His supervision and response was adequate, although he was not amenable to counselling for anger management.
[100] In Mr. Pentland’s opinion, Mr. Wice had a serious anger control issue without the ability to control it. Mr. Wice had even asked Mr. Pentland if Mr. Pentland wanted him to “beat up” other offenders who had indicated a desire to “jump” a probation officer.
[101] After he lost contact with Mr. Wice, Mr. Pentland spoke to a social worker at CNCC to ascertain Mr. Wice’s progress. The social worker told Mr. Pentland that now when Mr. Wice gets angry, he apologizes and recognizes the inappropriateness of his response.
Operational Manager at CNCC
[102] Curtis Desroches, the operational manager at CNCC, was called by the Crown. He testified that CNCC staff considers Mr. Wice to be a model inmate. Mr. Wice’s conduct at CNCC since December 2008 has been a marked departure from his earlier institutional conduct. His good behaviour earned him the privilege of being a cleaner and server. Although in past incarcerations, the offender was a significant behavioural problem, that has not been the case at CNCC. A further positive change in Mr. Wice’s behaviour was noted in 2011, after Mr. Wice’s father died and Mr. Wice was diagnosed with cancer.
[103] In the course of his remand, Mr. Wice has obtained his high school graduation diploma and is taking advantage of chaplaincy programs. Only two incidents of misconduct have been noted in three-and-a-half years, both of a minor nature. In Mr. Desroches’ opinion, that is considered to be good. Mr. Desroches agreed that the number of misconducts documented in Mr. Wice’s earlier incarcerations showed typical prison misconduct behaviour.
Community Parole Officer
[104] Lawrence Taylor is a community parole officer. He has been with Corrections Service Canada (CSC) since 1994. At the present time, he supervises seventeen offenders, two of whom are subject to an LTSO. The Crown called him to discuss programming available to dangerous offenders and to supervision of persons subject to an LTSO.
[105] When an offender is designated a dangerous offender and is sentenced to a fixed sentence and an LTSO, the length of the fixed sentence affects the ability of CSC to intervene. There is a greater degree of success with an offender sentenced to a federal term of approximately three years. A two-year federal sentence allows slim opportunity for programs because of the timing needed for penitentiary placement and other matters.
[106] Where a short sentence is imposed in a provincial facility, for example, a sentence of three months, the research demonstrates multiple concerns in the ability of CSC to assess the offender and obtain information. In Mr. Taylor’s opinion, the offender would be no less dangerous because nothing has transpired to address his risk. An untreated individual would be on the street.
[107] Mr. Taylor spoke of the various conditions on an LTSO, including residency, of the level of supervision of violent offenders and of the steps taken if there is a breach of an LTSO.
[108] On cross-examination, Mr. Taylor was directed to portions of the federal correctional records, including comments by Mr. Wice to corrections officials about his drug and alcohol use that indicated that substance abuse did not appear to have been a major component in Mr. Wice’s criminal activity, and that sex offender treatment did not appear warranted based on Mr. Wice’s claim of prior intervention.
Director - Community Correctional Centre (CCC)
[109] Kim Gillespie has been the Director of the Hamilton CCC for over six years. She was called by the defence.
[110] CCCs are not secure custodial facilities, so an offender has access to the community almost immediately upon release. Nothing stops an offender from walking out the door, although it could result in the issuance of a warrant of apprehension.
[111] Ms. Gillespie’s experience, although she openly acknowledged that she does not have research to back it up, is that offenders subject to an LTSO who have received a provincial sentence have a higher instance of breaches. In addition, they have to wait longer for programs. In Ms. Gillespie’s opinion, the programming is better in the federal system. Intensive programming is only available in the institution and upon release, it flows into the community programs.
[112] If an LTSO offender has not taken any programs, their access to the community is restricted for a long time until they have had programs and a risk assessment.
Community Supports
[113] The defence called two witnesses to testify to Mr. Wice’s supports in the community.
(a) Derek Parenteau
[114] In addition to providing information for the assessment report of Dr. Rootenberg, Mr. Parenteau testified. He is now a pastor with the Mennonite Brethren in Parry Sound. He has known Mr. Wice for a number of years. Mr. Wice had been a regular at the Evergreen Centre in Toronto. Shortly before his last incarceration, Mr. Wice asked to join the STAND (Street Trade Alternatives and New Directions) Program, so Mr. Parenteau worked intensely with him for two months until his arrest.
[115] Mr. Parenteau noted significant changes in Mr. Wice’s behaviour that extended to the manner in which he responded when he was arrested on the outstanding warrant for the predicate offences.
[116] Mr. Parenteau has maintained contact with Mr. Wice. Mr. Wice has continued to engage in the counselling and healing process. In Mr. Parenteau’s opinion, with Mr. Wice’s negative history, Mr. Wice could not continue to fake a positive transformation. Although Mr. Wice was very violent in the past, he is now a source of encouragement to the clergy at the Evergreen Centre.
[117] Mr. Parenteau agreed that Mr. Wice would “absolutely” benefit from more counselling, and stated that Mr. Wice is excited to do so. He considered anger management, trauma counselling and life coaching to be required. Substance abuse treatment “would not hurt”.
(b) Ejay Tupe
[118] Mr. Tupe is the community chaplain at the Evergreen Centre and an Associate Pastor in a church in downtown Toronto. He has had contact with Mr. Wice since March 2008. Mr. Wice was initially a discipline problem. He had a very violent history with women and was involved in drug trafficking, amongst other things. He had to address Mr. Wice’s negative reaction to women with him.
[119] Mr. Tupe had scepticism about his co-worker’s view that Mr. Wice had “come to faith” until he met with Mr. Wice in the jail. In his view, people can fake it to use their faith as leverage or as a crutch. The real test is how one persists with faith when faced with adversity. Mr. Wice had had a lot of adversity during his incarceration and has maintained his faith.
Mr. Wice’s Present Institutional Behaviour
[120] The defence called two correctional officers who have had contact with Mr. Wice.
(a) Duane Linford
[121] Mr. Linford has been an acting manager and corrections officer since June 2003.
[122] Mr. Linford first met Mr. Wice in 2003, when Mr. Wice was an inmate at the Toronto West Detention Centre. At that point, Mr. Wice was “a handful”. He didn’t follow rules and was involved in physical altercations.
[123] Over the last three years at CNCC, Mr. Wice has been very different. He has changed from being irrational, unpredictable and causing institutional problems to being rational and holding a position of trust. His threat level has decreased. Mr. Linford is now totally comfortable around Mr. Wice.
(b) Martin Desroches
[124] Mr. Desroches has been a correctional officer at CNCC since November 2001. He has known Mr. Wice since 2008.
[125] He considers that Mr. Wice is trusted “to an extent”. Mr. Desroches is unaware of any issues in relation to violence.
[126] While in segregation, Mr. Wice would have had less contact with other inmates. The same is true to a certain extent in the medical unit where Mr. Wice is now housed. Mr. Wice would have limited contact while serving inmates; less than in the general population, although he does mingle with others in the medical unit.
Letter and Documents from Mr. Wice
[127] At the conclusion of submissions and with the consent of the Crown, Mr. Wice filed a letter with the court, together with various supporting documents. In the letter, Mr. Wice apologized and accepted responsibility for his actions. He is seeking the court’s mercy and forgiveness. He mentioned the completion of his Bible study courses in his effort to help prepare him to attend Tyndale College and Seminary for his work in the Christian ministry. He hopes to secure employment with the Summit Church upon his release into the community. In the event that he is not accepted to Tyndale College, he hopes to attend college for culinary management. Mr. Wice also hopes to be involved with the Yonge Street Mission (Evergreen Centre) through volunteer work and other programs.
[128] In his letter, Mr. Wice asks that I impose one of three sentences:
(a) 6 to 9 months in jail, to allow him to finish programs and be released into residency at a half-way house;
(b) 90 days in jail with a recommendation that he remain in residency for one year to complete at least two programs, or
(c) Time served with a 10-year LTSO and a recommendation that he serve one-and-a-half years in residency to allow completion of at least two programs.
[129] Mr. Wice is not opposed to the imposition of the maximum 10-year LTSO.
POSITIONS OF THE PARTIES
[130] It is common ground that:
(a) Mr. Wice meets the statutory criteria of a dangerous offender, pursuant to s.753(1);
(b) Given the statutory framework as it now exists, I must find Mr. Wice to be a dangerous offender; and
(c) Mr. Wice has rebutted the presumption of an indeterminate period of detention: he has demonstrated that there is a reasonable expectation that a lesser measure, that is, a fixed sentence and an LTSO, will adequately protect the public against the commission by him of murder or a serious personal injury offence.
[131] Where Crown and defence depart is with respect to the length of the fixed sentence and the length of the LTSO.
[132] The Crown’s position is that an appropriate fixed sentence, considering the time spent in pre-sentence custody, is a federal penitentiary sentence, to be followed by a ten-year LTSO. Mr. Wice should be given credit of four years for his three years and five-and-a-half months of pre-sentence custody.
[133] The defence position is that an appropriate fixed sentence, considering the time spent in pre-sentence custody, is three months. The LTSO should be for a period of five years. Mr. Wice should be given credit for his pre-sentence custody on a two-for-one basis, thus giving him credit of six years and eleven months.
[134] The position of Mr. Wice, as set out in the letter he filed as an exhibit, was set out above.
RELEVANT STATUTORY PROVISIONS
[135] As a result of the amendments to part XXIV of the Criminal Code through the Tackling Violent Crime Act, the discretion to decline to find a person who meets the statutory criteria a dangerous offender has been removed. Under the new regime, once the statutory criteria have been met, the court shall order the dangerous offender designation. It is at that point that the court looks to the appropriate sentence to be imposed: that of detention for an indeterminate period, a determinate sentence of at least two years and an LTSO not exceeding ten years, or a determinate sentence.
[136] There is only a narrow discretion with respect to the imposition of a determinate sentence: a judge must be satisfied that a lesser measure would adequately protect the public against the commission by the offender of murder or a serious personal injury offence.
PRINCIPLES APPLIED
(a) Does Mr. Wice Meet the Statutory Dangerous Offender Criteria?
[137] There are different ways in which an offender may be found to be a dangerous offender. Under s. 753(1)(a), the court may declare an offender to be a dangerous offender where it is satisfied that the following requirements are met:
(i) the offender has been convicted of a serious personal injury offence as described in paragraph (a) of the definition of that expression in s.752; and
(ii) the offender constitutes a threat to the life, safety, or physical or mental well-being of other persons based on evidence establishing that the offender falls into any of three categories.
[138] With regard to the second requirement, two categories could apply in this case. The first refers to a pattern of repetitive behaviour showing a failure to restrain one’s behaviour and the likelihood of causing death, injury or inflicting severe psychological damage through failure in the future to restrain one’s behaviour.
[139] The second category relates to a pattern of persistent aggressive behaviour showing a substantial degree of indifference respecting the reasonably foreseeable consequences to others of one’s behaviour.
[140] “Serious personal injury offence” is defined by s.752 as:
(a) an indictable offence, other than ... 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 upon another person,
and for which the offender may be sentenced to imprisonment for ten years or more ...
[141] The offences of aggravated assault and assault with a weapon are serious personal injury offences within the meaning of s.752.
[142] I find that Mr. Wice constitutes a threat to the life, safety, or physical or mental well-being of other persons based on the evidence before me, being the evidence of Mr. Wice’s repeated violent offences committed from 1996 to 2008 and the predicate offences. This evidence establishes a pattern of repetitive behaviour and a failure by Mr. Wice to restrain his behaviour. Together with evidence of the impact of his behaviour on the victims and the undisputed evidence of his anti-social personality disorder, his alcohol abuse disorder, and high risk of reoffence, it establishes 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 behaviour.
[143] I also find that Mr. Wice constitutes a threat to the life, safety, or physical or mental well-being of other persons based on the evidence before me of Mr. Wice’s repeated violent offences committed from 1996 to 2008 and the predicate offences. This evidence establishes a pattern of persistent, aggressive behaviour and shows a substantial degree of indifference on the part of Mr. Wice respecting the reasonably foreseeable consequences to other persons of his behaviour. As noted by Dr. Rootenberg in his report:
Despite expressing remorse for his previous actions, Mr. Wice has demonstrated limited empathy towards his victims based on repetitive offending. There is little doubt that he has developed a pattern of aggressive behaviour and that this behaviour, from a psychiatric perspective, suggests that there is a “substantial degree of indifference”.
[144] Accordingly, I am satisfied that the Crown has established beyond a reasonable doubt the statutory criteria for the designation of Mr. Wice as a dangerous offender under ss. 753(1)(a)(i) and 753(1)(a)(ii).
(b) Has Mr. Wice Rebutted the Presumption of an Indeterminate Sentence?
[145] Without the significant improvement in Mr. Wice’s behaviour and attitude since December 2008, it is doubtful that the presumption set out in s. 753(4.1) would have been rebutted. However, in view of Mr. Wice’s present circumstances, the revised opinion of Dr. Rootenberg and the opinion of Dr. Pallandi, I am satisfied by the evidence adduced during this hearing that there is a reasonable expectation that a lesser measure, in this case a fixed sentence and an LTSO, will adequately protect the public against the commission by Mr. Wice of murder or a serious personal injury offence.
[146] Both psychiatrists agree that while Mr. Wice poses a high risk of recidivism for a violent offence, the risks have been reduced by the positive steps Mr. Wice has taken since his incarceration in December 2008. As noted by the Crown, Drs. Rootenberg and Pallandi suggest there is cause for optimism that with proper supervision Mr. Wice can be managed within the community. Both doctors agree, however, that intensive supervision is required.
[147] Given that Mr. Wice’s anti-social personality disorder cannot be treated, efforts must be made to “decrease the expression” as noted by Dr. Rootenberg, or “control its manifestations” as noted by Dr. Pallandi.
[148] In addition, although Mr. Wice’s substance abuse disorder is now in remission, that disorder has caused significant problems for Mr. Wice and, together with his anti-social personality disorder, result in Mr. Wice continuing to be at a high risk to re-offend.
[149] I find that the actuarial risk assessments buttress the evidence of risk as set out by Drs. Rootenberg and Pallandi. Mr. Wice’s PCL-R score of 29 and his VRAG score of 26 both support the high risk of reoffence, even considering their margin of error.
[150] The psychiatrists are clear that any successful release plan requires intensive supervision and management. Dr. Pallandi’s language that such release plan would, of necessity be “intensive, multi-faceted and stringent in the extreme” underlines the need for strict measures to protect the public.
[151] Accordingly, I am satisfied that only by way of a lengthy fixed sentence and a lengthy LTSO has Mr. Wice rebutted the presumption such that the public can be adequately protected against the commission by him of murder or a serious personal injury offence.
(c) What is an Appropriate Fixed Sentence?
Circumstances of the Offence and the Offender
[152] Mr. Wice is 32 years old. He has thirty-two previous convictions, many for offences of violence. He has been convicted of robbery five times. He has eight previous convictions for assault, assault with a weapon, or sexual assault. He has been convicted of uttering threats seven times. Mr. Wice is clearly a violent recidivist.
[153] He has frequently breached court orders, including probation orders and orders of prohibition.
[154] Mr. Wice’s criminal record and the transcripts of previous proceedings in support of this application demonstrate an escalation in violence. In the predicate offences, Mr. Wice not only threatened to use, but actually used the knife he wielded.
[155] The behaviour of Mr. Wice at the time of commission of the predicate offences is disturbing. Over a period of four days, Mr. Wice continually victimized and harassed two victims, confronting them with verbal abuse, physical abuse, and threats of harm, all while wielding a knife. Mr. Wice’s actions were designed to instil fear and to show dominance over the two victims. Mr. Wice’s criminal behaviour escalated over the four days as he continued to pursue, threaten, bully, harass and ultimately stab one of the victims.
[156] Mr. Wice was on three probation orders and seven weapons prohibitions at the time he committed the predicate offences. The probation orders related to two separate convictions for robbery and to convictions for assault with a weapon and uttering threats. The weapons prohibitions included both mandatory and discretionary weapons prohibitions that had been imposed from 2000 to 2007.
[157] There are also mitigating factors to consider. Mr. Wice pleaded guilty to the predicate offences, demonstrating his remorse. He has taken significant steps in an attempt at rehabilitation. He has obtained his high school diploma and taken many courses of Bible study. He has remained largely out of trouble while incarcerated for the last three-and-a-half years. He has surrounded himself with pro-social people and has the support of his mother, his girlfriend and members of his church and mission community.
The Purpose of a Fixed Sentence Pursuant to the Dangerous Offender Legislation
[158] The sentencing regime set out in Part XXIV of the Criminal Code has been described as:
a “specialized measure” targeted at offenders who clearly pose a threat to the security of our communities... In R. v. Lyons, the Supreme Court affirmed that the primary purpose of the dangerous offender sentencing regime is the protection of the public.[^2]
The Appropriate Sentence
[159] Given that the primary purpose of sentencing under the dangerous offender regime is protection of the public, the cases provided by defence on the range of sentence do not assist. Evidence of Mr. Wice’s positive steps towards rehabilitation should not reduce his sentence below a sentence that will adequately protect the public from his risk.
[160] I am aware that there is a significant range of sentence in cases of aggravated assault. I have considered the aggravating and mitigating factors and the cases to which I have been referred by counsel.
[161] I find the decision in R. v. Roberts[^3] to be of assistance. Mr. Roberts received a custodial sentence of 7 years. Although Mr. Roberts perpetrated an unprovoked assault on a stranger by stabbing a sleeping bus passenger in the chest, the two victims of Mr. Wice were also strangers to him. Mr. Wice was the aggressor on three separate days. He used a knife to threaten on each occasion. He continued to harass and bully the two victims on each of the three days. There were two separate offences, an assault with a weapon against Mr. Goudie and an aggravated assault days later when Mr. Wice ultimately stabbed Mr. Smits in the neck. Four stitches were required to close the wound. The injuries sustained by Mr. Smits were much more serious injuries than the superficial wound requiring only an antibiotic ointment in Roberts. Mr. Wice’s criminal record is significantly more serious than that of Mr. Roberts, with many convictions for offences of violence and breaches of court orders.
[162] Having reviewed all of the cases filed by counsel, I am satisfied that a sentence totalling seven years is appropriate. Mr. Wice will be sentenced to six years for the aggravated assault and one year consecutive for the assault with a weapon.
What Credit Should Mr. Wice Receive for his Pre-sentence Custody?
[163] Mr. Wice has been in custody since December 2, 2008, a period of three years and five-and-a-half months. Although the amount of credit for pre-sentence custody is discretionary, at the time Mr. Wice was arrested the Truth in Sentencing Act was not in effect and offenders were generally given credit on a two-for-one basis.
[164] I accept that there was little chance that Mr. Wice would have been granted early release for the predicate offences in light of his criminal record. I do find, however, that his inability to have access to programming has had a negative impact on him. His completion of his high school equivalency and his extensive courses of Bible study, his positive behaviour in custody, his acknowledgement to both psychiatrists that he requires treatment, and his continuing relationship with persons involved with the Evergreen Centre support that he would have been amenable to treatment during this period of incarceration. He should therefore be entitled to some enhanced credit for his pre-sentence custody.
[165] The Crown asks that I limit any credit I allow for pre-sentence custody and impose a penitentiary sentence. The position of the Crown is that a penitentiary sentence is required to enable CSC to provide Mr. Wice with the treatment and programming that is necessary to protect the public.
[166] The Crown relies on R. v. Edwards, supra, where the Court of Appeal upheld a fixed term sentence for the predicate offences at what “might be considered to be the high end of the range.” The Court of Appeal found that imposing a lengthy sentence without full consideration for the principle of totality became the least restrictive sentence for that offender. It allowed the trial judge to impose a fixed-term sentence of a length he deemed necessary to meet the requirements for a long-term offender designation. The alternative was a dangerous offender designation that would have resulted in a sentence of detention for an indeterminate period.
[167] Here, if I were to follow the reasoning in Edwards, the question would be whether Mr. Wice requires a penitentiary sentence and the treatment and programming available in a federal institution to protect the public. In other words, if he is not sentenced to a penitentiary term, will the presumption of an indeterminate sentence not have been rebutted, thus making a penitentiary sentence the least restrictive sentence?
[168] In this case, I am not satisfied by the evidence that, were I to impose other than a penitentiary sentence, the presumption of an indeterminate sentence would not be rebutted. I am not satisfied by the evidence that a penitentiary sentence is required to protect the public. The evidence before me, both from Dr. Rootenberg and Dr. Pallandi, is that Mr. Wice requires intensive supervision. Neither psychiatrist offered the opinion that intensive programming in a federal institution is required to reduce Mr. Wice’s risk to an acceptable level.
[169] For that reason, I find that this case is also distinguishable from R. v. Dorsey, where the amount of credit for pre-sentence custody was reduced, because in doing so, it enabled “an offender to receive the benefit of a more favourable sentencing regime”.[^4] In that case, psychiatric evidence accepted by the trial judge was that a federal term was necessary to reduce the offender’s risk to an acceptable level, which allowed him to be declared a long-term offender instead of a dangerous offender.
[170] No such expert opinion is before me. Mr. Wice’s reduction in risk was not predicated on the imposition of a penitentiary sentence and the programming available in a federal institution. Rather, his reduction in risk was predicated on the many and consistent steps he has taken thus far to reduce his risk and the extensive monitoring and supervision available under an LTSO. Even if the programs available to Mr. Wice in the federal system are superior, as testified to by the witnesses from CSC, given Mr. Wice’s progress since December 2008, I am not satisfied that Mr. Wice requires federal programs to receive the benefit of a fixed sentence and an LTSO.
[171] Considering all the factors, I am satisfied that, although Mr. Wice should not receive credit on a two-for-one basis given the impact his criminal record would have had on his ability to receive parole, he should receive credit of six years for the three years and five-and-a-half months of pre-sentence custody he has served, thus leaving one year remaining. This sentence will allow for programming, albeit in a provincial institution, thus ensuring that Mr. Wice will have had the benefit of some programming to address his risk factors before he begins his LTSO. I find that this sentence will adequately protect the public.
What is the Appropriate Length of the LTSO?
[172] As noted in R. v. Ipeelee[^5], “[t]he purpose of an LTSO is two-fold: to protect the public and to rehabilitate offenders and reintegrate them into the community.” [Emphasis in original.] The length of an LTSO is “based on an offender’s criminal past and on the likelihood that he or she will re-offend, which are addressed in the assessment report.”[^6]
[173] As noted earlier, both psychiatrists spoke of the need to control the manifestations of Mr. Wice’s anti-social personality disorder. Mr. Wice’s substance abuse disorder adds a significant risk factor. According to Dr. Rootenberg, Mr. Wice still needs “vigorous monitoring ... a high degree of vigilance.” Mr. Wice requires a “lengthy period to ensure he does not succumb to ... substance relapse.” In order to rein in Mr. Wice’s anti-social personality disorder, Dr. Rootenberg testified that a highly structured and supervised monitoring system is required.
[174] The risk that the public needs to be protected against is the commission of a further contact offence. The actuarial risk assessments conducted by both psychiatrists buttress the evidence of risk and demonstrate that Mr. Wice is at very high risk to reoffend violently over the long-term.
[175] Through the years, Mr. Wice has been involved in significant assaultive and threatening behaviour. He has brandished a knife repeatedly, to robbery victims, to his family and to innocent bystanders. His violence escalated in the predicate offences to the point where he actually used the knife he brandished and stabbed a man in the neck.
[176] I am of the view that protection of the public and the rehabilitation and reintegration of Mr. Wice into the community require a ten-year LTSO.
[177] The conditions of an LTSO are determined by the Parole Board of Canada. However, based on the evidence adduced on this hearing, I strongly recommend that consideration be given to the following terms:
(i) Keep the peace and be of good behaviour;
(ii) Remain at all times in Canada within the territorial boundaries fixed by the long-term supervision supervisor;
(iii) Inform the long-term supervision supervisor immediately on arrest or on being questioned by the police;
(iv) At all times carry the Long-Term Supervision Order and produce it upon request by a peace officer or long-term supervision supervisor or delegate;
(v) Report to the police if instructed by the long-term supervision supervisor or delegate;
(vi) Reside at a place approved of by the long-term supervision supervisor with a recommendation that Mr. Wice reside at a Community Correctional Centre;
(vii) Maintain frequent, highly structured contact with the long-term supervision supervisor;
(viii) Not associate with any persons deemed undesirable by the long-term supervision supervisor or delegate;
(ix) Have no contact directly or indirectly with Charles Goudie or Steven Smits;
(x) Not attend within 200 metres of any known residence, place of employment or place of education of Charles Goudie or Steven Smits;
(xi) Abide by an early curfew as determined by the long-term supervision supervisor;
(xii) Not possess or consume any alcohol or non-medically prescribed drugs;
(xiii) Not reside at any residence where alcohol or non-medically prescribed drugs are located;
(xiv) Not attend at any business premises that serves alcohol as the primary source of business;
(xv) Comply with any monitoring that includes random breath and urine testing for alcohol and non-medically prescribed drugs;
(xvi) Not possess any weapon as defined by the Criminal Code;
(xvii) Attend and actively participate in any programming, treatment or counselling as directed by the long-term supervision supervisor or delegate with a particular emphasis on anger management and substance abuse;
(xviii) Report any change in address, occupation, or education to the long-term supervision supervisor or delegate.
Ancillary Orders
[178] In addition, the offences of aggravated assault and assault with a weapon are primary DNA offences. I order that Mr. Wice provide such samples of his bodily substances that are reasonably required for the purpose of forensic DNA analysis for the DNA Data Bank.
[179] Under s.109 of the Criminal Code, Mr. Wice is prohibited from possessing any firearm, crossbow, restricted weapon, ammunition and explosive substance for life.
[180] Lastly, pursuant to s.760 of the Criminal Code, I order that a copy of the reports of Dr. Rootenberg and Dr. Pallandi, and the testimony given by Dr. Rootenberg, along with a transcript of these reasons, be forwarded to CSC.
CONCLUSION
[181] Mr. Wice is designated a dangerous offender. He is sentenced to the following:
(a) On the aggravated assault, a fixed sentence of six years with credit for six years of pre-sentence custody, for a sentence remaining of one day, to be followed by a Long-Term Supervision Order for a period of ten years; and
(b) On the assault with a weapon, to a fixed sentence of one year consecutive, to be followed by a concurrent Long-Term Supervision Order for a period of ten years.
FORM 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))
EVIDENCE ACT
I, Janice Crane, certify* that this document is a true and accurate transcript in the recording of R. v. Wice, Steven Noel in the Superior Court of Justice, held at Courtroom No. 3, Barrie Courthouse, 75 Mulcaster Street, Barrie, Ontario, taken from Recordings 3811-002-20120518, which have been certified in Form 1.
*This certification does not apply to the Reasons for Judgment, which were judicially edited.
14 June 2012 ___________________________
J.L. Crane
Certified Court Reporter
[^1]: R.S.C. 1985, c.C-46. [^2]: R. v. Edwards, 2008 ONCA 414 at para. 19. [^3]: 2009 ONCJ 246; Aff’d 2011 ONCA 261. [^4]: [2009] O.J. No. 5368 (S.C.) at para. 133. [^5]: [2012] S.C.C. 13 at para. 50. [^6]: R. v. L.M. [2008] S.C.C. 31 at para. 47.