ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-10-0056
DATE: 20120711

BETWEEN:

HER MAJESTY THE QUEEN – and – DEREK POWELL Defendant

K. Wright for the Crown
J. Bliss for the Defendant

HEARD: May 14, 17, June 12, 13 and 14, 2012

DANGEROUS OFFENDER APPLICATION

REASONS FOR DECISION

EBERHARD, J.:

OVERVIEW

[ 1 ] Mr. Powell was convicted on January 28, 2011 of Assault with a Weapon (x2); Threaten Death (x3); Forcible Confinement (x2); Assault Police (x2); Mischief and Breach of Probation (x2). He was acquitted of extortion (x2) arising from the same incidents.

[ 2 ] 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. Powell is now before me on an application to have him declared a Dangerous Offender.

[ 3 ] The Crown originally sought to have Mr. Powell sentenced to an indeterminate period of detention. As a result of the report of the defence psychiatrist, Dr. Pallandi, and the concurring response from the court-appointed psychiatrist, Dr. McMaster, the Crown’s position changed. The Crown now seeks to have Mr. Powell 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. Mr. Powell was arrested on January 30, 2010, and has been in custody since his arrest. 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.

[ 5 ] The predicate offences are from a period between January 22 to 30, 2010. On July 2, 2008, the Tackling Violent Crime Act , [2] came into effect and amended the Dangerous Offender provisions of the Criminal Code . If the criteria in the Criminal Code are met the individual must be declared a Dangerous Offender, but the amendments give the judge the discretion to impose a long-term supervision order (LTSO) on a Dangerous Offender, instead of an indeterminate sentence. Under the pre-July 2008 regime and the amended new regime, the route to the LTSO is similar [3] .

[ 6 ] If, under the new regime, I find that Mr. Powell meets the necessary criteria, I must declare him a Dangerous Offender. Then I must determine if I am satisfied that there is a reasonable expectation that a lesser measure other than an indeterminate sentence will adequately protect the public against the commission by Mr. Powell of a serious personal injury offence.

[ 7 ] The statutory framework in the Criminal Code reads: (my emphasis added)

Application for finding that an offender is a Dangerous Offender

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

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

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

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

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

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

Presumption

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

Time for making application

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

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

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

Application for remand for assessment after imposition of sentence

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

Sentence for Dangerous Offender

(4) If the court finds an offender to be a Dangerous Offender, it shall

( a ) impose a sentence of detention in a penitentiary for an indeterminate period;

( b ) impose a sentence for the offence for which the offender has been convicted — which must be a minimum punishment of imprisonment for a term of two years — and order that the offender be subject to long-term supervision for a period that does not exceed 10 years ; or

( c ) impose a sentence for the offence for which the offender has been convicted.

Sentence of indeterminate detention

(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)( b ) or ( c ) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. (emphasis added)

[ 8 ] It is not disputed and I find that:

(a) Mr. Powell meets all of the criteria of a Dangerous Offender under ss. 753(1)(a)(i), and 753(1)(a)(ii);

(b) This requires the court to declare Mr. Powell a Dangerous Offender; and

the evidence is not disputed that:

(a) There is a reasonable possibility of eventual control in the community; and

(b) I should exercise my discretion to designate Mr. Powell a long-term offender, impose a determinate sentence and order that Mr. Powell be subject to long-term supervision for 10 years.

[ 9 ] The Crown filed correctional records relating to Mr. Powell’s periods of incarceration on remand and serving sentences. Also before me were the assessment reports of Dr. Jeff McMaster, transcripts of previous proceedings, Mr. Powell’s criminal record, information regarding institutional programs and victim impact statements.

[ 10 ] The court had evidence from Dr. Pallandi a psychiatrist, and a response from Dr. McMaster. The court appoint Dr. McMaster deferred to the opinion of Dr. Pallandi who had indeed drawn heavily on Dr. McMaster’s analysis of the file material and well recognized actuarial risk assessment tools. The fundamental distinction was that Mr. Powell had declined participation with Dr. McMaster’s assessment but Dr. Pallandi did meet with Mr. Powell and had the advantage of clinical findings. Those findings opened a window of hope that with treatment and supervision there is a reasonable possibility of eventual control of Mr. Powell’s risk in the community.

[ 11 ] Lawrence Taylor, a federal parole officer testified about programming within federal institutions and transition into the community supervision under an LTSO. The court is aware that recommendations made now, based on the evidence of Mr. Powell’s current assessed risk, will be considered over the course of Mr. Powell’s incarceration and LTSO management, but that decisions about the terms and conditions necessary for his progress and control in the institution and in the community will be ongoing on legislated time frames and as dictated by changing circumstances in accordance with The Corrections and Conditional Release Act (CCRA) governing the Parole Board of Canada and the LTSO supervisors .

PREDICATE OFFENCES

[ 12 ] The facts of the predicate offences are set out in my Reasons for Decision delivered January 28, 2011 and fully reviewed in Dr. McMaster’s reports. I do not intend to repeat the facts here. But it is important to note the caution taken in considering those facts:

[ 13 ] After he had considered all the evidence initially supplied to him and issued his assessment report on July 22, 2011, on March 29, 2012 Dr. McMaster reported again, having been asked by Crown counsel to omit from his consideration delineated commentaries from the Elaina Romanelli victim of the predicate offences which Crown counsel conceded were not capable of proof. This cautious reconsideration is consistent with my findings relating to the credibility and reliability of Elaina Romanelli in the trial of the predicate offences. It is further consistent with the vetting of her Victim Impact Statement before it was presented. Elaina Romanelli has a poetic turn of phrase and a unique perspective on her subjective reality that cannot easily be reined in to the constraints of the rules of evidence. As with her trial evidence, one can discern a certain congruence with facts otherwise provable but it is unsafe to rely literally on the language of her descriptions. It is safer, in the context of a criminal trial or Dangerous Offender hearing, to determine what is otherwise demonstrated and then strive where possible to see the truth in Elaina Romanelli’s comments without necessarily relying on the details of her assertions.

[ 14 ] I am satisfied that the evidence of the predicate offences used by Dr. McMaster and accepted by Dr. Pallandi (as well as evidence of prior events involving Ms. Romanelli) is free of any taint from the colourful narrative style of the victim.

OFFENDER’S ANTECEDENTS

The Offender’s Circumstances

[ 15 ] Dr. McMaster reviewed court and institutional records of Mr. Powell. I have reviewed the various records filed on this application. I agree with Dr. Pallandi that Dr. McMaster’s summary of Mr. Powell’s circumstances is accurate to the records .

[ 16 ] Mr. Powell is now 43 years old born March 8, 1969. He has been in custody since his arrest on January 30, 2010.

[ 17 ] Mr. Powell was raised in a family environment that was marred by his father’s alcohol abuse and the associated physical abuse of his mother and himself. He finished high school after some interruptions and he has had employment for a moving company that he eventually bought. Roots and positive community involvement have been impeded by a recurrent pattern of criminal activity, then avoiding arrest, then lengthy remands in detention, then short sentences or release without much institutional programming, then a repetition of the cycle upon re-entering the community without having obtained enhanced skills, enhanced insights or enhanced controls of his additions or behaviours from involvement in the criminal justice or corrections systems.

1. Prior Criminal History

[ 18 ] Mr. Powell’s criminal record, which reflects this cycle, is set out herein:

Date
Offence
Sentence

1991-06-14 WHITBY ONT
BE & COMMIT
SUSP SENT & PROBATION 15 MONTHS & 75 HOURS COMM SERV WORK

1994-05-11 NEWMARKET ONT
DRIVING WITH MORE THAN 80 MGS OF ALCOHOL IN BLOOD
$350 I-D 30 DAYS A PROH DRI 1 YR

1996-02-02 OSHAWA ONT
ASSAULT SEC 266 CC
10 DAYS & PROBATION12 MOS

1996-10-21 TORONTO ONT
POSSESSION PROPERTY OBTAINED BY CRIME UNDER $5000 FAIL TO COMPLY WITH RECOGNIZANCE
(1-2) SUSP SENT & PROBATION 1 YR ON EACH CHG CONC

2000-07-28 RICHMOND BC
ASSAULT X 2
ORDER & PROBATION 1 YR ON EACH CHG

2002-10-21 OSHAWA ONT
1DRIVING WHILE ABILITY IMPAIRED 2FAIL TO APPEAR 3UTTERING THREATS 4) UNLAWFULLY IN DWELLING HOUSE 5)ASSAULT X2 6) UTTERING THREATS X 3 7) CARE OR CONTROL WHILE IMPAIRED 8) OBSTRUCT

1. 1 DAY & PROBATION 3 YEARS & PROH DRI 3 YEARS (7 DAYS PSC) 2-3)1 DAY ON EACH CONS, PROBATION 3 YEARS ON EACH CHG CONC (7 DAYS PSC) 4-5) 31 DAY ON EACH CONS, PROBATION 3 YEARS ON EACH CHG CONC (7 DAYS PSC) 6) 1 DAY ON EACH CONS, PROBATION 3 YEARS ON EACH CHG CONC (4 MONTHS PSC) 7) 3O DAYS CONS, PROBATION 3 YEARS ON EACH CHG CONS 8) 30 DAYS CONS, PROBATION 3

2003-09-18 NEWMARKET ONT
(1) FORCIBLE CONFINEMENT (2) UTTERING THREATS (3) ASSAULT (4) DISOBEYING ORDER OF COURT SEC 127(1) CC

1. 5 MOS & PROBATION 24 MONTHS (7 MOS PSC) 2-4) 5 MOS & PROBATION 24 MONTHS ON EACH CONC

2004-03-23 OSHAWA ONT
(1) ROBBERY^ (2) FAIL TO COMPLY WITH RECOGNIZANCE

1)5 MOS & PROBATION 2 YEARS (74 DAYS PSC) 2) 30 DAYS AND PROBATION 2 YEARS CONC

2005-02-11 NEWMARKET ONT
UTTERING THREATS FAIL TO COMPLY WITH PROBATION ORDER

5 MOS & PROBATION 30 MOS (150 DAYS PSC) PROHIBITION ORDER 5 YRS 5 MOS AND PROBATION 30 MONTHS CONC

2006-07-07 OSHAWA ONT
FAIL TO COMPLY WITH PROBATION ORDER X2

30 DAYS ON EACH CHG CONC & (45 DAYS PSC)

2006-11-28 TORONTO ONT
FAIL TO COMPLY WITH RECOGNIZANCE

1 DAY (60 DAYS PSC)

2006-12-01 NEWMARKET ONT
FRAUD UNDER $5000

SUSP SENT & PROBATION 4 MONTHS (20 DAYS PSC)

2007-05-18 OSHAWA ONT
FAIL TO COMPLY WITH RECOGNIZANCE FAIL TO COMPLY WITH PROBATION ORDER

1 DAY &(45 DAYS PSC) 1 DAY &(45 DAYS PSC) CONC

2007-06-11 TORONTO ONT
ASSAULT CBH

SUSP SENT & PROBATION 12 MOS & (50 DAYS PSC) PROHIBITION 5 YRS

2007-09-05 SURREY BC
POSSESSION PROPERTY OBTAINED BY CRIME UNDER $5000

TIME SERVED & PROBATION 18 MOS (4 MOS PSC)

2008-05-07 OSHAWA ONT
FAIL TO COMPLY WITH PROBATION ORDER X2 POSSESSION PROPERTY OBTAINED BY CRIME

1 DAY + PROBATION 18 MONTHS 1 DAY CONC _ PROBATION 18 MONTHS (40 DAYS PSC)

2008-05-13
ASSAULT

15 DAYS + 3 YEARS PROBATION

2008-08-07 NEWMARKET ONT
ASSAULT FAIL TO COMPLY WITH PROBATION ORDER X3

1 DAY ON EACH (72 DAYS PSC)

2008-08-27 OSHAWA ONT
FAIL TO COMPLY WITH PROBATION ORDER FAIL TO COMPLY WITH LAWFUL ORDER

25 DAYS ON EACH CONSEC (20 DAYS PSC)

2008-12-31
OBSTRUCT BREACH OF PROBATION X3

90 DAYS (56 DAYS PTC)

2009-09-10
BREACH PROBATION DANGEROUS FLIGHT POLICE POSSESSION STOLEN PROPERTY

4 MONTHS (7 MONTHS PTC)

[ 19 ] The cycle is characterized by offences factually associated with his addiction and offences in the context of intimate partner relationships.

[ 20 ] The crown and defence presented an agreed statement of facts that summarized in brief form the bare bones of intimate partner relationship history:

There is other evidence of Derek Powell’s past intimate relationships that amply demonstrate a pattern of manipulative, intimidating, and controlling behaviour that culminated in his acting aggressively in a physically assaultive manner.

For example:

Darlene Silverberg: Powell was verbally abusive, jealous, grabbed and struck her, and repeatedly called her after police were contacted.

Dana Saltern: Powell was verbally abusive, jealous, manipulated her to obtain money, grabbed and struck her, threatened to kill her, physically prevented her from leaving her residence, prevented her from using phone, entered residence when she wasn’t home and hid under her bed until he was found, and breached the no contact order.

Roxanne Pearce: Powell was verbally abusive, jealous, manipulated her to obtain money, grabbed and struck her, threatened to kill her, physically prevented her from leaving her residence, prevented her from using phone, entered her residence when she wasn’t home and hid under her bed until he was found, and repeatedly called her after police were contacted.

Julie McQueen: Powell was verbally abusive, jealous, manipulated her to obtain money, grabbed and struck her, threatened to kill her. Physically prevented her from leaving her residence, prevented her from using phone, breached the no contact order, and threatened her new boyfriend.

2. Institutional History

[ 21 ] Mr. Powell has many periods of incarceration in Provincial institutions set out in Volume 3 Tab 1. Speaking practically, he has simply had very little uninterrupted time in the community:

02 Feb 1996 to 08 Feb 1996 Whitby Jail
05 May 2002 to 21 June 2002 Whitby Jail
21 June 2002 to 12 Nov 2002 Millbrook
13 June 2003 to 09 Jul 2003 Metro West
09 Jul 2003 to 02 Jan 2004 CECC
15 Jan 2004 to 03 July 2004 CECC
24 Nov 2004 to 21 May 2005 CECC
05 Feb 2006 to 09 Aug 2006 Maplehurst
03 Sep 2006 to 01 Dec 2006 Maplehurst
23 Feb 2007 to 11 Jun 2007 Metro West
15 Jan 2008 to 04 Mar 2008 Metro West
04 Mar 2008 to 22 May 2008 CECC
29 May 2008 to 07 Aug 2008 CECC
08 Aug 2008 to 29 Sept 2008 CECC
06 Nov 2008 to 08 Feb 2009 CECC
20 Feb 2009 to 17 Sept 2009 Ottawa
17 Sep 2009 to 29 Sept 2009 CECC
29 Sep 2009 to 22 Jan 2010 Metro West
31 Jan 2010 to present CNCC

[ 22 ] Because of the substantial consensus on the evidence, the reports of Dr. McMaster and Dr. Pallandi were received in writing.

Dr. Jeff McMaster
Qualifications

[ 23 ] Dr. McMaster is a staff psychiatrist both in the Law and Mental Health Program and Psychological Trauma Program at the Centre for Addiction and Mental Health, Consultant in Civil and Criminal Forensic Psychiatry and lecturer in Psychiatry at the University of Toronto.

[ 24 ] Dr. McMaster has been involved in many assessments in relation to Dangerous Offenders and long-term offenders. He has been qualified to provide opinion evidence before the Superior Court of Justice and the Ontario Court of Justice. The defence took no issue with his qualifications.

[ 25 ] In view of his extensive qualifications as set out in his curriculum vitae it was not disputed he was qualified to provide expert opinion evidence in the area of forensic psychiatry.

Assessment

[ 26 ] Dr. McMaster prepared an assessment report dated July 22, 2011, an amended report dated March 29, 2012 and a response to Dr. Pallandi’s opinion by letter date May 14, 2012.

[ 27 ] Mr. Powell declined to participate in the court ordered assessment by Dr. McMaster.

[ 28 ] Despite Mr. Powell’s lack of participation in the assessment, Dr. McMaster was reasonably confident in the conclusions he reached, given the volume of collateral information that was made available to him, assuming the majority of information reviewed was factual. Dr. McMaster testified that the actuarial risk assessment tools remain accurate even if the offender has not agreed to be interviewed. Dr. McMaster found no evidence of a major mental illness.

Diagnoses

[ 29 ] Mr. Powell’s relevant diagnoses are:

Axis I (Clinical Disorders):

Polysubstance Abuse (and cocaine) in remission in a controlled setting
Rule out Attention Deficit Hyperactivity Disorder

Axis II (Personality Disorders and Mental Retardation)

Antisocial Personality Disorder With Borderline Traits

Axis III (General Medical Conditions)

Reported History of Head Injury
Low Testosterone Level

Axis IV (Psychosocial and Environmental Problems)

Legal Stressors Legal Stressors
Chronic Relationship Difficulties
Chronic Drug Use

Axis V (Global Assessment of Functioning Scale – GAF)

Unable to determine

Risk Assessment

[ 30 ] Dr. McMaster employed actuarial methods of risk assessment. Such methods are strong predictors of long-term violence.

[ 31 ] Mr. Powell’s pro-rated score on the Psychopathy Checklist – Revised (PCL-R) was 27, just below the cut-off score of 30 that has been used to categorize psychopathy. Dr. McMaster opined that “Mr. Powell’s score suggests significant psychopathic traits, with accordant risk, and probable risk management and treatment difficulties.

[ 32 ] The Violence Risk Appraisal Guide (VRAG) assesses the risk of general violent re-offending for male offenders. Mr. Powell’s score on the VRAG is +5, placing him among male violent offenders 35% of whom violently reoffended within 7 years of opportunity and 48% within 10 years. This score is elevated but not profoundly so.

[ 33 ] Of greater concern, and consistent with Mr. Powell’s history in intimate relationships disclosed by the summary, is the Domestic Violence Risk Appraisal Guide (DVRAG) The DVRAG score was 36 putting him in the 99%ile. In 5 years all 100% of men in Mr. Powell’s category had committed a new domestic assault recorded by police.

[ 34 ] The Structured Clinical Judgment (SPJ) (HCR-20) guide for the assessment of violence risk, which adds prevention to prediction components in the actuarial tools, yielded a score of 33 out of 40 but Dr. McMaster acknowledged: “clinical and risk management items were scored in a less than ideal, and non-standard fashion, as I could not assess Mr. Powell directly.”

[ 35 ] Both the PCL-R and VRAG scores indicate that Mr. Powell is among those presenting a concerning but not exceptional risk. The DVRAG indicates a very high risk category to engage in future violent behaviour with intimate partners, over the long-term.

[ 36 ] Dr. McMaster was of the opinion that Mr. Powell meets the criteria of a Dangerous Offender pursuant to both sections 753(1)(a)(i) and 753(1)(a)(ii).

[ 37 ] In his initial report, with the caveat that he had not had the advantage of clinical assessment of Mr. Powell, Dr. McMaster was very pessimistic in his opinion whether there is a reasonable possibility of eventual control of the risk that Mr. Powell poses in the community.

[ 38 ] In his second report dated March 29, 2012, having been asked to omit from his consideration delineated commentary from the victim, thus constrained, Dr. McMaster wrote:

The above noted information does not change my opinion about Mr. Powell’s potential diagnoses. However, I must emphasize that as I was unable to conduct an interview of Mr. Powell, I am unable to make formal diagnoses, and my opinions in this regard are provisional.

[ 39 ] At the time of preparation of his report in July 22, 2011, Dr. McMaster stated that:

Given the severity, chronicity, and number of Mr. Powell’s difficulties, and risk factors, he does not appear to be an individual whose risk could be eventually controlled in the community, absent an indeterminate sentence. He has not been able to change his pattern of behaviour over the span of many years, despite the assistance of corrections, numerous probation orders, and treatment opportunities . In fact, his behaviour appeared to escalate over time.

Overall, Mr. Powell appears to be an individual who would be at risk of putting in a perfunctory effort while waiting for his LTSO to expire. Accordingly, an indefinite incarceration would have the highest likelihood of success of providing a true long-term change in his lifestyle and risk factors.

Mr. Powell will require treatment for many risk factors, including: anger management; difficulties in relationships, and especially domestic relationships; substance abuse; and a lack of pro-social interests in work and recreation. It would be optimistic to expect a major improvement in even one or two of these risk factors in the coming years, and unrealistic to expect that there could be enough of a change in his risk factors to make a meaningful and sustained difference in his overall risk. The chances are quite small that at the age of 42, he will suddenly: develop insight into the need to change himself, and improve his personality; and form the ability to sustain stable intimate relationships, and improve his attitudes and behaviour towards women, and achieve long-term sobriety, and develop pro-social attitudes, and so on.

[ 40 ] On the seminal question of reasonable expectation that a lesser measure than indeterminate sentence will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

While it seems unlikely that Mr. Powell could significantly develop the internal means to manage his risk, it also seems unlikely that his risk could be managed by external means, i.e. by supervision, in the community. Given Mr. Powell’s extensive history of breaching supervisory orders, and other factors including his relatively high PCL-R score, it appears that the possibility of successful supervision appears more theoretical, than practical. Successful community management, if possible, would appear to require a number of extreme measures enforced for the foreseeable future. Such measures would include: residence in a professionally supervised setting; very close supervision by correctional professionals; electronic monitoring; restrictions of movement and association, including a curfew; the abstention from intoxicants, including prescription medications, and as enforced by random urinalyses or breathalysers; the approval of and close monitoring of all relationships with women; assessment and treatment by mental health professionals for difficulties as aforenoted (relationships, anger). Even if it were possible to implement all of these measures, I am uncertain they would be effective in protecting the safety of the public.

Furthermore, even in the event that Mr. Powell is released into the community on a LTSO, and assuming that his reintegration into the community is successful, while on the LTSO, there remains the real concern that once his LTSO ends, he will no longer be sufficiently externally motivated to monitor risk factors on his own.

[ 41 ] This opinion is very pessimistic indeed that anything short of an indeterminate sentence could contain the risk presented by Mr. Powell.

DR. PALLANDI

Qualifications

[ 42 ] Dr. Derek Pallandi is a forensic psychiatrist. 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.

[ 43 ] He conducted an assessment and prepared a report, dated May 10, 2012, 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.

[ 44 ] For the purpose of preparing his report, Dr. Pallandi examined Mr. Powell on May 3, 2012 for 4 hours and also relied on the same data provided to Dr. McMaster as well as Dr. McMaster’s first two reports.

[ 45 ] The Crown acknowledges that Dr. Derek Pallandi is an experienced, balanced, unbiased expert and the Crown is prepared, as Dr. McMaster was, to rely on his clinical interview with Mr. Powell.

[ 46 ] A clinical interview, the very component of assessment that Dr. McMaster identified as rendering his own opinions provisional, gave the interview with Dr. Pallandi crucial importance.

Diagnoses

[ 47 ] Dr. Pallandi generally agreed with Dr. McMaster’s assessment of Antisocial Personality Disorder, Polysubstance (primarily cocaine) Abuse and/or Dependence. He confirmed the elevated PCL-R score but disagreed that it warranted a diagnosis of psychopathy. Poor cooperation with community management was noted.

Risk Assessment

[ 48 ] He agreed with Dr. McMaster’s actuarial measures and stated:

In short, I am compelled to also conclude that Mr. Powell represents a high risk for violent recidivism, notably in domestic circumstances.

[ 49 ] This is read to mean that he agrees Mr. Powell meets the criteria for designation as a Dangerous Offender.

[ 50 ] He then addressed the same seminal question of reasonable expectation that a lesser measure than indeterminate sentence will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

Manageability of Identified Risk

Notwithstanding the above, when considering the feasibility of managing the identified level or risk, I would suggest to you and the Court that contemplation be given to the following factors:

• Mr. Powell has indicated a singular and steadfast commitment to treatments of any kind that might be suggested to him by professionals, without reservation

• To date, Mr. Powell has not been subject to sustained and comprehensive treatments to ameliorate his deficits and behavioural / interpersonal problems, fully acknowledging that he himself has been in a large measure responsible for lack of such efforts to date

• Mr. Powell has not to date been subject to either internally motivated or monitored abstinence from substance misuse, which has been an influential variable in his past conduct, illegal and otherwise

Furthermore, with specific, intensive and structured treatment both undertaken and successfully and diligently completed, any residual components of risk could be managed without compromise of public safety.

The caveat, however, is that given the relative lack of treatment commitment to date, a significant component of a plan should be undertaken intra-institutionally over a protracted period , prior to Mr. Powell’s reintegration into the community being envisioned.

In this regard, I understand that contemplation is being given to a further period of incarceration (federally) of Mr. Powell, followed by a 10 year period of community supervision.

I am of the opinion that such measures (treatment and further incarceration) would raise the likelihood of possible eventual control in the community from speculative to reasonable and realistic. (emphasis added)

[ 51 ] Dr. Pallandi then made specific recommendations:

RECOMMENDATIONS

While incarcerated, Mr. Powell should be required to:

• Abstain from substance misuse
• Attend for any and all available substance abuse treatment programmes
• Attend for high intensity programmes directed at domestic violence
• Attend for anger management programmes
• Avail himself of education and vocational upgrading and training programmes
• Avail himself of other psychological treatment that might be made available to him

In preparation for release to the community and upon release, Mr. Powell should be required to:

• Continue to abstain from substance use
• Continue to attend for maintenance and follow-up treatments as recommended by intra-institutional treatment providers (anger management; substance misuse and domestic violence)
• Sign reciprocal consents for free exchange of information between all those involved in his treatment and supervision, as well as any social, personal or intimate/romantic contacts
• Have his relationships subject to regular and unrestricted scrutiny
• Reside in approved accommodation
• Submit samples of breath, urine, blood or hair, as indicated, to monitor for substance misuse

[ 52 ] Dr. McMaster’s response to Dr. Pallandi’s report brings agreement to the evidence provided by Psychiatric expertise. Dr. McMaster has more optimism now in relation to whether Mr. Powell’s risk is manageable. He commented on two factors besides Dr. Pallandi’s report:

One, you have advised me that historically, Mr. Powell has spent a significant amount of time incarcerated on a pre-trial custody basis, which has severely limited his access to sustained and intensive treatment.

You have asked me to consider that Mr. Powell would be in his 60’s at the expiration of his LTSO. This is noteworthy, as for non-psychopathic individuals, such as Mr. Powell, risk of violence decreases steadily with age. Furthermore, Mr. Powell may not be able to suddenly develop risk management skills; however, he could do so by the time he is released from federal incarceration (with residual risk managed by the supervision of the LTSO), and subsequently, by the time he reaches his early 60’s when his LTSO expires.

[ 53 ] Of the significance of Dr. Pallandi’s report he wrote:

I did not have the opportunity to interview Mr. Powell, and to question him about future plans, and risk management strategies. Dr. Pallandi has rendered the opinion that Mr. Powell represents a high risk for violent recidivism but that under certain circumstances (incarceration, treatment, and intensive supervision) the likelihood of eventual control in the community would change from speculative, to reasonable and realistic.

[ 54 ] He concluded:

In considering the above noted information, I am of the opinion that Mr. Powell’s risk could eventually be managed in the community. However, this would be the case only after he successfully completed institutional treatment , and if he was released into the community in a gradual, step-wise fashion that involves a Community Correctional Centre (CCC), and ongoing intensive monitoring and treatment during the period of the LTSO, as outlined below.

I previously noted that Mr. Powell appeared to be in the “precontemplative” stage with respect to addressing his identified criminogenic factors. However, based on Dr. Pallandi’s report, Mr. Powell appears to have entered the contemplative phase of change. During a period of federal incarceration, he would have the opportunity of preparation (through programming) and then applying this information (albeit institutionally) to his own life. (emphasis added)

[ 55 ] He recommended:

Specifically, while federally incarcerated, Mr. Powell should be required to:

1. Abstain from substance misuse (and be tested for same) and attend substance use programming
2. Attend anger management and domestic violence programs
3. Attend treatment directed at improving general coping skills, and if available, to decrease antisocial attitudes and behaviours (e.g. develop pro-social interests and activities).
4. Attend programming to improve recreational, educational, psychological and vocational skills
   5)Address any family issues, which are assessed as perpetuating his difficulties.

Once Mr. Powell is released into the community, he should be required to:

1. Continue to attend the above programming, and continue the process of applying the risk management strategies to his own life
2. Mr. Powell should be closely supervised. Such measures would include: initial residence in a professionally supervised setting (a CCC), and thereafter in approved accommodation; very close supervision by correctional professionals; restrictions of movement and association, including a curfew; the abstention from intoxicants, including prescription medications, and as enforced by random urinalyses, breathalysers or blood or hair analyses; and the approval of and close monitoring of all relationships with women. I agree with Dr. Pallandi’s suggestion that he should sign reciprocal consents for free exchange of information between all those involved in his treatment and supervision, as well as any social. Personal, or intimate / romantic contacts.

[ 56 ] Dr. McMaster’s amended opinion is:

… I am of the opinion that with the above conditions and recommendations, there is a reasonable chance that Mr. Powell’s risk could be managed in the community, during his LTSO, and eventually, in his 60’s, at such time that his LTSO expires.

EVIDENCE OF LAWRENCE TAYLOR, COMMUNITY PAROLE OFFICER

[ 57 ] Mr. Taylor is a federal parole officer employed by Correctional Service Canada (CSC.) He has held that position since 1994, working both inside and outside of institutions. He has been employed as a correctional officer, an institutional parole officer and a community parole officer (CPO).

[ 58 ] Mr. Taylor, who was called to testify, explained the official material filed regarding Correctional Program Descriptions and CSC and Long Term Supervision Orders (LTSO) outlining various types and intensities of correctional programs available in the institution and the maintenance programs available in the community. CSC provides programs that address general crime prevention, violence prevention, family violence prevention, substance abuse and sex offending. Maintenance programs and/or outside resources or services are available in the community to manage risk. Suffice it to say there are programs relevant to Mr. Powell’s risk factors.

[ 59 ] 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.

[ 60 ] Mr. Taylor emphasized that, in the institution, progress on the goals for intervention are continually reassessed, at least every 6 months, and decisions about the management of the inmate are based on his progress or lack of progress. The offender is assessed to determine if participation in the program is “real”, measured during and after programming for indicators he is taking things in, developing insight, changing conduct or attitudes.

[ 61 ] By the time an inmate reaches parole eligibility, CSC has gathered a lot of information from ongoing assessment which determines whether the case manager will support full or day parole. Although the decisions rest with others, the inmate’s participation drives the process based on their willingness to engage in programs and their success at those programs. Inmates are disciplined for conduct and relapse. Without meaningful participation in programs the inmate would not gain the case management team’s support for early release because the risk has not been mitigated.

[ 62 ] Mr Taylor emphasized that the inmate’s case management team strives for continuity of approach as the offender transitions into the LTSO, whether he has first qualified for parole or remains incarcerated until warrant expiry.

[ 63 ] The Parole Board of Canada (PBC), not the court, imposes conditions of release for an LTSO. However, the PBC considers recommendations made by the court in determining appropriate conditions to manage risk. The types of recommendations made by the two psychiatrists in the present case are within the conditions of supervision that can be ordered. Residency , vigilant monitoring of times permitted and reasons for unsupervised sojourns into the community, participation in treatment programs and medication, strict non-contact orders can all be brought under the rubric of LTSO conditions. If there are measurable gains, the conditions can gradually be withdrawn. If there is non-compliance, there are procedures which can be quickly invoked to re-incarcerate the offender with time frames for tiered decisions as to whether application should be made or charges laid to keep the offender incarcerated.

[ 64 ] A CPO is involved in supervision of an offender subject to an LTSO, from daily to once every three months. In exercising supervision, the CPO will have direct contact with the offender, collateral contact with family, associates and policing services.

[ 65 ] Given that offenders subject to an LTSO are considered high risk, a long-term offender would generally, if not always, be subject to a residency condition at a Community Correctional Centre (CCC)

[ 66 ] Mr Taylor’s evidence was an expansion on the program information and management scheme set out in the material provided. Sanctions for failure to progress within the institution were explained. Sanctions for non-compliance and failure to progress in the community were explained as well as the support for compliance that can be arranged and the supervision of compliance.

[ 67 ] All was to the purpose of demonstrating that the opinion now shared by Dr. Pallandi and Dr. McMaster, that with treatment and supervision Mr. Powell’s risk can be managed in the community under and LTSO, has ample safeguards. If Mr. Powell pursues the treatment diligently, if he complies with supports and strict terms while in the institution and on release under a LTSO then his risk can be controlled. This is the hope.

[ 68 ] But it is not an naïve hope. If Mr. Powell does not adequately pursue the treatment , or if he fails to comply with supports and strict terms while in the institution and on release under a LTSO then his stay in the institution will stretch to warrant expiry, his LTSO terms of release will be necessarily strict and non-compliance will be addressed by a tiered level of response by the CPO and the Parole Board of Canada which can, if necessary, result in reincarceration and/or an ever-lengthening period of LTSO supervision since time stops running when the period is interrupted when the offender is reincarcerated by the tiered responses to non-compliance.

STATEMENT FROM MR. POWELL

[ 69 ] At the conclusion of submissions Mr. Powell reminded the court of his right to address me. I had mentioned to him at the outset of the hearing that this was his right. Mr. Powell’s counsel sought opportunity to discuss his choice, the Crown, whom Mr. Powell addressed directly across the courtroom, urged him to accept legal advice, and I offered opportunity, but Mr. Powell declined. I listened.

[ 70 ] Of potential legal impact was Mr. Powell’s statement that he did not agree with the position taken by his counsel in the hearing. After Mr. Powell was finished I gave counsel opportunity to consider submissions on this point. When we reconvened Mr. Powell acknowledged that he did not dispute that he met the s753 criteria for designation as a Dangerous Offender and accepted that the law provided three options. I am satisfied that Mr. Powell agrees that the legal criteria have been met. He naturally disagrees with the inevitable consequences of that designation.

[ 71 ] Mr. Powell’s imperative was to urge upon me that, compared to other offenders guilty of crimes much worse, he did not deserve the stigma of Dangerous Offender which he characterized as a life sentence. He felt targeted and offered observations that Barrie has more Dangerous Offender findings than anywhere else. He spoke of danger and the likelihood of becoming a worse offender if sent to the penitentiary. He asserted that if sent to OCI or St Laurence, provincial institutions with a treatment focus, he would give his all and do well. He lamented that he had never had the opportunity to access those provincial alternatives.

[ 72 ] The content of his prepared statement was Mr. Powell’s version the relationship difficulties with the women whose evidence is summarized and who were named victims of convicted offences. The potential advantage to Mr. Powell of these assertions was slight because it was not an occasion to overturn the convictions. The potential disadvantage was concerning inasmuch as he detailed reasons why he was hurt and angry with these women resulting in the conduct, acknowledged in a minimized description, that is familiar from the materials describing the proceedings that addressed those incidents.

[ 73 ] The potential prejudice to Mr. Powell, in making his assertions, did not manifest because my evaluation of this statement is empathetic. He is very frightened as persons never before facing penitentiary are rightly frightened. He has an expectation of unfairness from the court. Many who have endured a life without knowing fairness assume that judges will also be unfair. He has identified reasons why he has done the things he has to others without having yet acquired the strength and insight to face his own responsibility. He is sad, and rightly so. The foreseeable years are grim. The past is grim. Life has not worked out happily for Mr. Powell.

[ 74 ] The effort of the court to be fair to Mr. Powell, though it is necessary to follow the law and give priority to public safety, is to explore if there is a measure short of the presumptive option of indeterminate sentence, that creates a reasonable expectation that the public will adequately protected. Mr. Powell’s and society’s best hope is in the possibility that treatment will free him of the demons that lead to his intimate partner violence. Based on the evidence of two psychiatric experts, there could be no likelihood that at this moment Mr. Powell would demonstrate a greater insight. His heartfelt statement to me was consistent with the most promising aspect of his assessed circumstances. He is on the cusp of the contemplative stage which is the “door to treatment and the willingness to take in information to modify his behaviour”. The experts opine he has a lot of diligent work to do in treatment before he can achieve the insight, and practice the better patterns of conduct that will allow his risk to others to be managed.

[ 75 ] Dr. Pallandi characterizes Mr. Powell’s presentation as an acknowledgment of willingness to take treatment and get something out of treatment. That did not come across well in Mr. Powell’s court room statement which had more in it of attributing responsibility for his plight to others. Still, I am prepared to rely on expert assessment of comments made in a context not so prone to supplication.

[ 76 ] Accordingly, his statement did not prejudice him in this proceeding. Perhaps it will be useful to those who undertake the treatment planning for him.

POSITIONS OF THE PARTIES

[ 77 ] It is common ground that:

(a) Mr. Powell 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. Powell to be a Dangerous Offender; and

(c) Mr. Powell 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.

(d) An appropriate fixed sentence is 10 years and an appropriate LTSO is 10 years

[ 78 ] Where Crown and defence diverge is with respect to the extent of credit for pre-sentence custody and whether the court should make an order under Criminal Code section 743.6(1) to delay parole eligibility otherwise statutorily available after serving 1/3 of the sentence.

[ 79 ] Crown counsel reasons that but for the Dangerous Offender Application Mr. Powell would have been sentenced in about March 2011 making 18 months or so from judgment to this decision. The Crown’s position is that with an appropriate 10 year fixed sentence, Mr. Powell should be given credit of 18 months for his 18 months of post judgment custody.

[ 80 ] The defence position is that with an appropriate 10 year fixed sentence, considering the time spent since arrest in pre-sentence custody, is 30 months that Mr. Powell should be given credit for his pre-sentence custody of 30 months.

PRINCIPLES APPLIED

(a) Does Mr. Powell Meet the Statutory Dangerous Offender Criteria?

[ 81 ] 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;

(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;

(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.

[ 82 ] Although in my reasons for judgment I described Mr. Powell’s actions in the predicate offences as brutal, the crown is not pursuing a finding under 753(1)(a)(iii). Nor 753(1)(b) which relates to control of sexual impulses.

[ 83 ] In determining whether Mr. Powell meets the requirements two categories 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.

[ 84 ] The second category relates to a pattern of persistent aggressive behaviour showing a substantial degree of indifference respecting the reasonably foreseeable consequences to other persons of one’s behaviour.

[ 85 ] “Serious personal injury offence” is defined by s.752 as:

an indictable offence, other than ... murder, involving the use or attempted use of violence against another person, or

(i) 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.

[ 86 ] The offences of assault with a weapon are serious personal injury offences within the meaning of s.752.

[ 87 ] I find that Mr. Powell 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. Powell’s repeated violent offences committed from 1995 with 4 different intimate partners then Elaina Romanelli and eventually the predicate offences. This evidence establishes a pattern of repetitive behaviour with similar violence, parasitic control, and confinement. It establishes a failure by Mr. Powell to restrain his behaviour, especially taking into account his insistent breaches of non-association terms of probations orders. Together with evidence of the impact of his behaviour on the victims, 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.

[ 88 ] I also find that Mr. Powell constitutes a threat to the life, safety, or physical or mental well-being of other persons based on the evidence before me of Mr. Powell’s repeated violent offences committed from 1995 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. Powell respecting the reasonably foreseeable consequences to other persons of his behaviour.

[ 89 ] Accordingly, I am satisfied that the Crown has established beyond a reasonable doubt the statutory criteria for the designation of Mr. Powell as a Dangerous Offender under ss. 753(1)(a)(i) and 753(1)(a)(ii).

(b) Has Mr. Powell Rebutted the Presumption of an Indeterminate Sentence?

[ 90 ] Without the converging views of the psychiatric experts, it is doubtful that the presumption set out in s. 753(4.1) would have been rebutted. However, with the revised opinion of Dr. McMaster 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. Powell of murder or a serious personal injury offence.

[ 91 ] It is important to note that Mr. Powell, despite many periods in jail, has had very little treatment or programming. He cannot be said to have been unresponsive to intervention. His cycle of offence and remand has simply resulting in a lack of real opportunity. Often this was due to Mr. Powell’s own non-compliance with treatment or counselling terms. He needs both the opportunity and the restriction on his movement so that he is available to take up the opportunity.

[ 92 ] Both psychiatrists agree that while Mr. Powell poses a high risk of recidivism for a violent offence, particularly on intimate partners. As noted by the Crown, Drs. McMaster and Pallandi suggest there is cause for optimism that with proper supervision Mr. Powell can be managed within the community. Both doctors agree, however, that intensive supervision is required.

[ 93 ] I find that the actuarial risk assessments buttress the evidence of risk as set out by Drs. McMaster and Pallandi. Mr. Powell’s elevated PCL-R score, and his somewhat elevated VRAG score both support the high risk of re-offence, even considering their margin of error. But the DVRAG is decisive. His assessed risk to violently re-offend with a domestic partner is as profound as can be measured.

[ 94 ] The psychiatrists are clear that any successful release plan requires intensive supervision and management. The quoted comments and recommendations are both premised on long periods of intervention. Dr. McMaster takes some comfort in Mr. Powell nearing the age of 60 by the time the fixed sentence and LTSO are likely to elapse. The age factor itself reduces the kind of risk Mr. Powell presents.

[ 95 ] Accordingly, I am satisfied that only by way of a lengthy fixed sentence and a lengthy LTSO has Mr. Powell 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?

[ 96 ] Mr. Powell is clearly a violent recidivist.

[ 97 ] He has frequently breached court orders, including probation orders.

[ 98 ] Mr. Powell’s criminal record and the transcripts of previous proceedings in support of this application demonstrate an escalation in violence.

[ 99 ] The behaviour of Mr. Powell at the time of commission of the predicate offences is disturbing. I found it brutal. Mr. Powell’s conduct with police was foolish, uncontrolled and brutish.

[ 100 ] Mr. Powell was on a probation order not to associate with Elaina Romanelli.

[ 101 ] There are also mitigating factors to consider. Mr. Powell has expressed a wish for treatment that gave rise to the expert opinion that he has entered the contemplative stage and he may therefore benefit from programs offered.

The Appropriate Sentence

[ 102 ] The primary purpose of sentencing under the Dangerous Offender regime is protection of the public. His sentence should not be inadequate to protect the public from his risk. Mr. Powell has only recently progressed to the contemplative stage. He has a long process ahead, which he will have to pursue diligently, before the public can be protected from him.

[ 103 ] I am satisfied that a sentence totalling 10 years is appropriate. Mr. Powell will be sentenced to 5 years for count 1 assault with a weapon; 5 years for count 2 assault with a weapon, concurrent to each other; 1 year consecutive for each of counts 3, 4 and 5: utter threat, concurrent to each other; 2 years consecutive for each of counts 8 and 9:confinement, concurrent to each other; 1 year consecutive for counts 10,11 and 12 assault peace officer and mischief concurrent to each other; and 1 year consecutive for counts 13 and 14:breach of probation, concurrent to each other, for a total fixed sentence of 10 years.

What Credit Should Mr. Powell Receive for his Pre-sentence Custody?

[ 104 ] Mr. Powell has been in custody since January 30, 2010, a period of two years 5 and a half months. Although the amount of credit for pre-sentence custody is discretionary, at the time Mr. Powell was arrested the Truth in Sentencing Act was in effect and offenders are generally given credit on a one-for-one basis.

[ 105 ] He should be entitled to some credit for his pre-sentence custody.

[ 106 ] Considering all the factors, I am satisfied that, Mr. Powell should receive credit of two years, leaving the fixed sentence to be served at 8 years thus enhancing the likelihood that Mr. Powell 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. A fixed sentence of shorter duration would not ready him sufficiently to succeed in his LTSO. The presumption of an indeterminate sentence was only rebutted on the basis that by pursuing the combination of institutional and community programming his risk could be adequately controlled. This is not a circumstance of lengthening a sentence to get treatment advantage. It is an effort to preserve the basis on which an indeterminate sentence can be considered.

Delay Of Eligibility For Parole

[ 107 ] The crown seeks delay of eligibility for parole which would otherwise be at 1/3 of the fixed sentence be delayed until ½ of the fixed sentence is served. This permitted by Criminal Code section 743.6(1) :

Eligibility for Parole

Power of court to delay parole

743.6 (1) Notwithstanding subsection 120(1) of the Corrections and Conditional Release Act , where an offender receives, on or after November 1, 1992, a sentence of imprisonment of two years or more, including a sentence of imprisonment for life imposed otherwise than as a minimum punishment, on conviction for an offence set out in Schedule I or II to that Act that was prosecuted by way of indictment, the court may, if satisfied, having regard to the circumstances of the commission of the offence and the character and circumstances of the offender, that the expression of society’s denunciation of the offence or the objective of specific or general deterrence so requires, order that the portion of the sentence that must be served before the offender may be released on full parole is one half of the sentence or ten years, whichever is less.

Principles that are to guide the court

(2) For greater certainty, the paramount principles which are to guide the court under this section are denunciation and specific or general deterrence, with rehabilitation of the offender, in all cases, being subordinate to these paramount principles.

[ 108 ] Of course, eligibility for parole only allows the Application. The Parole Board of Canada makes the determination and has the accumulated evidence of the inmate’s management team to consider. I doubt that there was much chance that Mr. Powell would have been granted early release for the predicate offences if he were merely sentenced rather than subject to a Dangerous Offender designation, in light of his criminal record. I doubt there is much chance of early release from the fixed sentence of 8 years. Because of that doubt, the question of delayed eligibility for parole may be somewhat moot. All the evidence, at its most optimistic, predicts a long hard process for Mr. Powell to address his many inter-related problems that contribute to his risk of violent reoffending.

[ 109 ] The evidence of Mr. Taylor is that programming is not even offered until the inmate has had a significant period to settle in to institutional life. The 32 months (1/3 of 8 years) when early release could be considered would fall before much real programming has occurred. This is entirely inconsistent with the most optimistic evidence of Mr. Powell’s risk becoming manageable for release into the community. It flies in the face of the very requirement that has made it possible for Mr. Powell to rebut the presumption that an indeterminate sentence is appropriate. The long hard work in the institution followed by a seamless transition to consistent programming and supervision in the community which is the recommended plan that renders the control of Mr. Powell’s risk reasonably possible cannot be accomplished that way. Even supposing Mr. Powell’s complete and unflagging cooperation and effort, it is naïve to suppose that sufficient demonstration a real change can be demonstrated in so short a time.

[ 110 ] I considered whether an order delaying eligibility for parole, even if he has made good progress, will discourage Mr. Powell to such an extent that he will give up on the necessary effort. If that is all it takes to defeat him, then the optimism in his eventual success is misplaced. It is likely that he will face many more challenging impediments to progress than that before progress brings his risk to a manageable level.

[ 111 ] On the other hand, the primacy of public safety is properly expressed through an order delaying eligibility for parole. It reinforces the confidence that the basis for finding that the hope of Mr. Powell’s risk becoming manageable is not theoretical or illusory. It is based on a confidence in the effectiveness of programming, over time, when an inmate devotes himself, over time, to real change. Time and effort are the factors that transform Mr. Taylor’s rather rosy description of CSC available programs to a realistic, dependable truth that people can change with informed help and determined personal commitment.

[ 112 ] The criteria discussed in 743.6(1) are met and there is no impediment to applying the section to Dangerous Offenders.

[ 113 ] I therefore order that eligibility for parole is delayed until ½ of the 8 year fixed sentence has been served.

What is the Appropriate Length of the LTSO?

[ 114 ] As noted in R. v. Ipeelee [4] , “[t]he purpose of an LTSO is two-fold: to protect the public and to rehabilitate offenders and reintegrate them into the community.” 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.” [5]

[ 115 ] Mr Taylor repeated often that the goal is to preserve public safety while also meeting individual needs.

[ 116 ] Both psychiatrists averted to Mr. Powell’s substance abuse disorder which adds a significant risk factor. Both psychiatrists saw the need that a highly structured and supervised monitoring system.

[ 117 ] The risk, that the public needs to be protected against, is the commission of a further violent offence, particularly with an intimate partner. The actuarial risk assessments conducted by both psychiatrists buttress the evidence of risk and demonstrate that Mr. Powell is at very high risk to reoffend violently over the long-term particularly towards an intimate partner.

[ 118 ] Counsel join in submissions for a 10 years LSTO.

[ 119 ] I agree that protection of the public and the rehabilitation and reintegration of Mr. Powell into the community require a ten-year LTSO.

[ 120 ] 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) Maintain frequent, highly structured contact with the long-term supervision supervisor;

(vii) Comply with any monitoring that includes random breath and urine testing for alcohol and non-medically prescribed drugs;

(viii) Comply with electronic monitoring;

(ix) Report any change in address, occupation, or education to the long-term supervision supervisor or delegate;

(x) Reside at a place approved of by the long-term supervision supervisor with a recommendation that Mr. Powell reside at a Community Correctional Centre;

(xi) Abide by the rules of the approved residence;

(xii) Abide by an early curfew as determined by the long-term supervision supervisor;

(xiii) Provide itinerary and time periods for activities outside the approved residence when required by the long-term supervision supervisor or delegate;

(xiv) Not communicate or associate with Elaina Romanelli directly or indirectly;

(xv) Not attend within 200 metres of any known residence, place of employment or place of education of Elaina Romanelli;

(xvi) Report to the long-term supervision supervisor or delegate and obtain approval of and submit to close monitoring of all social, personal or intimate/romantic contacts or relationships with women;

(xvii) Not associate with any persons deemed undesirable, inappropriate or vulnerable by the long-term supervision supervisor or delegate;

(xviii) not attend within 200 metres of any location deemed undesirable, inappropriate or vulnerable by the long-term supervision supervisor or delegate;

(xix) Not possess or consume any alcohol or non-medically prescribed drugs;

(xx) Report to the long-term supervision supervisor or delegate as soon as practicable any prescription for medication and not to continue to possess or consume same without approval of the long-term supervision supervisor or delegate;

(xxi) Not reside at any residence where alcohol or non-medically prescribed drugs are located;

(xxii) Not attend at any business premises that serves alcohol as the primary source of business;

(xxiii) Not possess any weapon as defined by the Criminal Code ;

(xxiv) 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, relationships, substance abuse, at vocational upgrading and training;

(xxv) Provide reciprocal consents for free exchange of information between those involved in his treatment and supervision.

ANCILLARY ORDERS

[ 121 ] In addition, the offences of assault with a weapon are primary DNA offences. I order that Mr. Powell provide such samples of his bodily substances that are reasonably required for the purpose of forensic DNA analysis for the DNA Data Bank.

[ 122 ] Under s.109 of the Criminal Code , Mr. Powell is prohibited from possessing any firearm, crossbow, restricted weapon, ammunition and explosive substance for life.

[ 123 ] Lastly, pursuant to s.760 of the Criminal Code , I order that a copy of the reports of Dr. McMaster and Dr. Pallandi, a transcript of Mr. Powell’s statement to the court along with a transcript of these reasons, be forwarded to CSC.

CONCLUSION

[ 124 ] Mr. Powell is designated a Dangerous Offender. In addition to the ancillary orders, he is sentenced to:

A fixed sentence totalling 10 years with credit for two years pre-sentence custody, for a sentence remaining of eight years to be served, followed by a Long-Term Supervision Order for a period of ten years.

EBERHARD J.

Released: July 11, 2012

[1] R.S.C. 1985, c.C-46 .

[2] S.C. 2008, c. 6.

[3] R. v’. D.M.L 2012 ONCA 78 , [2012]O.J. No.475
Page 3 para 3

[4] [2012] S.C.C. 13 at para. 50.

[5] R. v. L.M. [2008] S.C.C. 31 at para. 47.