CITATION: R. v. Burton, 2013 ONSC 2625

COURT FILE NO.: 11-70000590-0000

DATE: 2013-05-29

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JERMAINE BURTON Defendant

COUNSEL:

Monica Gharabawy, for the Crown

Ari Goldkind, for the Defendant

HEARD: March 20, April 30, May 22, August 27, September 11, September 24, November 1, 26, 28, 29, December 3, 5, 27 and 28, 2012, February 1, 25, 26, 28, March 1, and May 2, 2013.

L. A. PATTILLO J. (ORALLY):

REASONS FOR Sentence

Introduction

[1] On March 5, 2012, I dismissed the charges of aggravated assault and robbery against the accused Jermaine Burton but found him guilty of the lesser and included offence of assault causing bodily harm. I also found Mr. Burton guilty of two breaches of his recognizance issued pursuant to s. 810.2 of the Criminal Code, namely failing to keep the peace and be of good behavior and failing to not be in the company of anyone known to him to be involved in criminal activity. In addition, at the outset of the trial, Mr. Burton pleaded guilty to two breaches of his s.810.2 recognizance arising out of his arrest, namely failing to abstain from the purchase, possession or consumption of non-medically prescribed drugs and failing to obey a curfew.

[2] The Crown submits that Mr. Burton should be found a dangerous offender pursuant to s. 753 of the Criminal Code and sentenced to detention in the penitentiary for an indefinite period.

[3] The defence does not dispute on the evidence that Mr. Burton meets the criteria to be found a dangerous offender but submits, pursuant to s. 753.1 of the Criminal Code, Mr. Burton should be found a long term offender and a long term supervision order should be imposed.

Background

[4] Following conviction, sentencing submissions were set for March 20, 2012. On that date, the Crown indicated that it wished to bring an application to have Mr. Burton assessed in respect of a dangerous offender application. The matter was adjourned to April 30, 2012, to permit the Crown to bring an application to have Mr. Burton assessed pursuant to s. 752.1 of the Criminal Code.

[5] On April 30, 2012, the Crown brought a s. 752.1 application seeking to appoint Dr. Treena Wilkie, a psychiatrist at the Centre for Addiction and Mental Health, to do the assessment of Mr. Burton. The defence objected to Dr. Wilkie’s appointment and submitted that there were other doctors more qualified to conduct the assessment. At the conclusion of the hearing, I indicated that I was satisfied that Dr. Wilkie was qualified to carry out the assessment. In light of the defence’s position, however, I adjourned the matter to May 22, 2012 to permit the defence to submit alternate names to the Crown for its consideration. I indicated that, in the absence of agreement between the parties, Dr. Wilkie would be appointed the assessor. On May 22, 2012, I was advised there was no agreement between the parties. After considering the qualifications of the defence’s proposed doctors, I concluded there was no reason to deviate from my initial determination. Accordingly, I confirmed my appointment of Dr. Wilkie to carry out the assessment.

[6] Dr. Wilkie completed her assessment by July 13, 2012. Her report, dated August 17, 2012, was marked as Exhibit 9. In response, the defence retained Dr. Robin Wilson, a clinical psychologist and Dr. Julian A.C. Gojer, a psychiatrist to assess Mr. Burton. Dr. Wilson’s report is dated October 31, 2012 and was marked as Exhibit 23 on the application. Dr. Gojer’s report is dated December 3, 2012 and was marked as Exhibit 26.

[7] On November 1, 2012, which was the date set to deal with any issues concerning the admissibility of documents at the hearing, the defence agreed that the documents tendered by the Crown and noticed under the Evidence Act which were produced in the ordinary course of business and not for litigation or criminal purposes were admissible for the truth of their contents. Any opinions were a question of weight.

[8] The evidence on the dangerous offender application began on November 26, 2012. At the outset, the Crown filed a number of volumes of institutional records relating to Mr. Burton. These records dealt with Mr. Burton`s involvement in his youth with the Catholic Children’s Aid Society, with the Centre for Addiction and Mental Health and with both Ontario and Federal penal institutions. The Crown also filed a number of transcripts of Mr. Burton’s previous convictions, synopses, victim impact statements and pre-sentence reports. All of the documents were marked as exhibits.

[9] The Crown called five witnesses who testified about their involvement with Mr. Burton, his history and management while under supervision or while receiving support in the community and while in custodial institutions or hospitals.

[10] In support of its application, the Crown also called Dr. Wilkie who did the assessment of Mr. Burton pursuant to my order under s. 752.1 of the Criminal Code. In response, the defence called Dr. Wilson and Dr. Gojer who each carried out an assessment of Mr. Burton.

Dangerous Offenders/Long Term Offenders

[11] Ms. Shandy-Lynn Briggs, an Area Director with Correctional Services of Canada (“CSC”) testified in respect of how CSC deals with both dangerous offenders and long term offenders subject to long term supervision orders.

[12] All offenders sentenced to a federal sentence are assessed at the commencement of their sentence. In the first 60 to 90 days, a correctional plan is established for the offender with the goal of reintegrating the offender into the community at the conclusion of their sentence, either at the time of statutory release or warrant expiry. The correctional plan provides for, among other things, the treatments and programs recommended for the offender. The offender is not forced to participate in the assigned treatments or programs. It is up to the individual offender.

[13] An offender declared to be a dangerous offender is first eligible for parole 7 years from the date of his or her arrest. He or she is eligible for day parole, 4 years from the date of sentence. In order to be a candidate for parole, the offender must have demonstrated change and commitment to his or her correctional plan, as well as participating in programs that indicate a reduction in risk levels. There must also be an appropriate release plan. Ms. Briggs stated that, given the nature of the population, very few dangerous offenders have been released on parole but for those who have been released, the success rate has been very high.

[14] By contrast, a long term offender is released into the community with conditions either at his or her statutory release date or at warrant expiry. At warrant expiry, the long term supervision order takes effect. The offender’s compliance with his or her conditions will be monitored by a community parole officer who, in circumstances of high risk, high need, will see the offender anywhere between 4 and 8 times a month.

[15] In about 55% of all long term supervision orders, a residency requirement is imposed. In such event, the offender will be sent to a halfway house either run by CSC or by a community partner under contract with CSC. The purpose of the residency requirement is to enable the offender to build supports in the community to establish a safe release plan. A residency condition on a long term supervision order has a life span of 180 days (or 6 months) but it can be expanded by the Parole Board. The average time a long term offender spends in a half-way house is one year.

[16] Halfway houses have staff on site 24 hours a day. Overnight, there are one or two individuals on duty, depending on the facility. There are security requirements to check on the residents from time to time but they are not locked in and an offender can walk out at any time (in breach of his conditions). Residents are expected to manage and function in the community on their own. Treatment and programs are available both at the residence and from outside providers. Residents are not normally accompanied by staff to treatment or programs outside the residence.

Circumstances of the Offences

[17] On December 8, 2010, Mr. Burton was released from penitentiary following the warrant expiry of his sentence for sexual assault. He was met by members of the Toronto Police Service, arrested and transported to Toronto where he was held in custody. He was released on the same day after consenting to a recognizance for a period of 24 months under s. 810.2 of the Criminal Code which contained a number of conditions, including that he report weekly, abide by a curfew to be in his residence between the hours of 12 am and 6 am each and every night unless in the company of an immediate family member or persons approved by certain members of the Toronto Police or their designate, keep the peace and be of good behavior, abstain from the purchase, possession or consumption of any non-prescription drugs and not be in the company of any person known to him to be involved in criminal activity.

[18] On March 18, 2011, Mr. Burton and a friend accompanied Ms. Sarah Fuller to the home of Mr. Vasilios Aivalis so that Ms. Fuller could pick up her dog and some of her belongings. Ms. Fuller had previously lived with Mr. Aivalis but in her words, their relationship was “rocky`”. Mr. Aivalis had a bad temper and she had a crack cocaine problem. Mr. Burton met Ms. Fuller on the street and they had been living together at Mr. Burton’s apartment for about 2 ½ to 3 weeks at the time. They agreed that Ms. Fuller would go to the apartment and Mr. Burton and his friend would remain close by to assist her if necessary.

[19] While she was at the apartment, Ms. Fuller got into an argument with Mr. Aivalis. Ms. Fuller called Mr. Burton on her cell and he and his friend immediately went to Mr. Aivalis’ apartment and knocked on the door. Mr. Aivalis answered. Mr. Burton and Mr. Aivalis got into an altercation outside the apartment which lasted for between 5 to 7 minutes. An independent witness observed the fight and said that the two black males were attacking Mr. Aivalis. He said the white male’s head was smashed into a car and he was punched in the face and kicked in the ribs. Mr. Aivalis said it was only Mr. Burton who hit him. At some point, Mr. Aivalis bit Mr. Burton’s finger and to have him release it, Mr. Burton bit Mr. Aivalis’ ear. After the fight, Mr. Burton, his friend and Ms. Fuller left the area. Ms. Fuller told Mr. Burton that she had taken four grams of crack cocaine from Mr. Aivalis when she was in his apartment.

[20] Mr. Aivalis was taken to hospital where he was treated for a severe laceration on his left ear, soft tissue swelling in the right facial region and a suspected minimally displaced fracture of the left nasal bone. He was released from the hospital in the early hours of March 19, 2011.

[21] Mr. Burton was arrested on the charges before the court on March 29, 2011 at 4:30 am in the area of Sherbourne and Gerrard Streets. He had a small amount of crack cocaine on him at the time of his arrest. He has remained in custody ever since.

Circumstances of the Offender

[22] Mr. Burton is currently 30 years old. He had just turned 28 two days before the offences before the court. He is not married. He has a brother Tyrone, who is two years younger and who has also been in trouble with the criminal justice system.

[23] Mr. Burton was born in Toronto on March 16, 1983. His parents separated when he was very young but they have remained in his life. Mr. Burton has what Dr. Wilkie has describes as a “complicated” relationship with his family. He was raised in his formative years by his mother who is a lawyer. His father remarried and has three children from that relationship. His father had odd jobs during Mr. Burton’s early years and has worked as the head custodian at a nursing home for the past 10 years. He has a criminal history.

[24] Mr. Burton was raised in an environment of neglect, conflict, physical abuse and relationship instability. The Children’s Aid Society was involved with his family from the time he was five years old. From the age of 13, he was in and out of group homes. He has been in and out of various schools from an early age. To his credit, in December 2009, he completed his Grade 12 education while he was incarcerated. His work history is limited. While he has had odd jobs for short periods, he has been unable to secure and maintain long term employment. On the positive side, he has been engaged in volunteer work when he has been in the community.

[25] Mr. Burton began exhibiting problematic behavior and emotional problems at a young age. He had significant depression in early childhood. His behavior issues seriously escalated when he was 11. He attempted suicide at age 12. Unfortunately, he received very little in the way of treatment to address his problems in his formative years. He continued to have behavioural and emotional issues while in the care of Children’s Aid. When he was 15 he ran away to New Brunswick and lived with his girlfriend’s family. He started high school while there and did well for a short period but things deteriorated and he returned to Toronto in July 1999. He lived with friends and in shelters, supported by welfare. It was not long before his troubles with the criminal justice system began. They have continued ever since.

[26] Mr. Burton has a significant and lengthy criminal history of violence both as a youth and as an adult. He has numerous convictions prior to the current offence for violence, including assault, assault causing bodily harm and sexual assault. He also has a conviction for possession of a controlled substance and two convictions involving trafficking of controlled substances. Further, he has several convictions for failure to comply with a probation order. His detailed criminal record is attached as Schedule “A”.

[27] Mr. Burton first conviction was at the age of 16 for assault. It involved the assault of an ice-cream vendor. He had one earlier assault charge as a youth involving the assault of three group home staff for which he received a conditional discharge. In May of 2001, he had a conviction for robbery and the use of an imitation firearm during the commission of an offence.

[28] Mr. Burton’s first adult conviction was in May 2002, when he was convicted of sexually assaulting a young male at the Sprucedale Youth Centre in Simcoe where they were both in custody as young offenders. Mr. Burton digitally penetrated the victim and chased him in the shower area, causing him to fear for his safety. The complainant filed a victim impact statement which indicated that the assault had a dramatic and serious impact on his life.

[29] In April 2003, Mr. Burton was convicted of assault causing bodily harm following an unprovoked attack which sent the victim, a stranger, to hospital. In May of the same year, he was convicted on three charges of assault following his attack on three case workers at Covenant House. In September 2005 he was convicted of assault causing bodily harm for striking and injuring two police officers while in custody.

[30] In December of 2007, he was again convicted of sexual assault as well as assaulting a peace officer. He forced sexual intercourse on the victim. He choked her and hit her in the face a number of times, breaking her nose. Following the incident, he called the police and confessed to what he’s done. The assault of a peace officer involved spitting on a female court officer. Mr. Burton was sentenced to a term of three years and two months imprisonment for the sexual assault after receiving credit for his per-sentence custody of 193 days. As noted, he was released at the expiry of the warrant for his sentence on December 8, 2010.

[31] Mr. Burton has also been convicted of failing to comply with either a probation order or a recognizance once as a youth and six times as an adult.

[32] Mr. Burton did not testify during the sentencing hearing. He did, however, address the court at the end of the evidence by filing a letter he wrote with the court (Exhibit 31). In it he indicates that he has been diagnosed with schizophrenia and is on medication. He says he is “good and stable.” He admits to not having made all the right choices and having done some bad things. He refers to his goals of obtaining a university degree, getting a good job and being a citizen of “my city.” He says he now understands the importance of choosing proper and positive friends. He acknowledges he is scared about a dangerous offender designation and if given parole or a long term supervision order, he will follow it to a tee and take his medication and “keep my nose clean for the remainder of my life.”

The Experts

Dr. Wilkie

[33] Dr. Wilkie received her Medical Doctorate in June 2000 and became a Fellow of the Royal College of Physicians of Canada in psychiatry in June 2005. From June 2005, she has been a staff psychiatrist in the Law and Mental Health Program at the Centre for Addiction and Mental Health in Toronto where, among other things, she is involved with the Sexual Behaviour Clinic. She has also been a consultant psychiatrist at the Toronto Jail since 2005. She is a member of the Ontario Review Board. From 2007 to the present she has been a lecturer at the University of Toronto. She has received extensive forensic training, has conducted numerous forensic psychiatric and risk assessments. The defence took no issue with Dr. Wilkie’s qualifications to testify as an expert in forensic psychiatry and risk assessment. I qualified her accordingly.

[34] In carrying out her assessment, in addition to meeting with Mr. Burton a number of times, Dr. Wilkie reviewed the extensive health and criminal records relating to Mr. Burton which have been filed as exhibits on the hearing and, with his permission, spoke with a number of collateral sources concerning him. She also utilized a psychological report prepared by Dr. S. Penney, PhD., C.Psych., dated August 14, 2012.

[35] Based on the information reviewed and obtained, it was Dr. Wilkie’s opinion that Mr. Burton suffers from schizophrenia, paranoid type and antisocial personality disorder. Dr. Wilkie was further of the opinion that within that diagnosis he meets the diagnostic criteria for conduct disorder (childhood onset), polysubstance dependence (marijuana, cocaine and possibly alcohol), in remission in a controlled environment and likely a sexual disorder not otherwise specified.

[36] Dr. Wilkie also evaluated Mr. Burton for risk using actuarial risk assessment tools which generate a probability score to compare a person’s risk to a set sample of offenders. The instruments used were the Psychopathy Checklist-Revised (PCL-R), the Violence Risk Appraisal Guide (VRAG), the Sex Offender Risk Appraisal Guide (SORAG) and the STATIC-99-R. Based on the results obtained in respect of Mr. Burton using these tools, Dr. Wilkie’s overall opinion is that Mr. Burton is a high risk to reoffend both violently and sexually.

[37] It was also Dr. Wilkie’s opinion, given Mr. Burton’s diagnosis, that there are significant challenges regarding his management in the community long term. In addition to the problems in managing and treating Mr. Burton’s schizophrenia and his substance dependence problem, she stated that it was difficult to manage his psychopathic personality trait in the community given that there are no proximate risk indicators of offending behavior.

Dr. Wilson

[38] Dr. Robin Wilson is a clinical psychologist who has worked principally with sexual offenders for the last 30 years. He currently divides his professional time between Ontario and Florida. From 1992 to 2005 he worked for Correctional Services. He has published extensively and has substantial experience with dangerous offender applications. I qualified Dr. Wilson on the basis of both education and experience as an expert in the management, supervision and treatment of high risk sexual offenders.

[39] Dr. Wilson was asked by the defence to perform a psychological assessment of Mr. Burton, identify the risk factors and give his opinion as to what was required in order for Mr. Burton to be released back into the community.

[40] Dr. Wilson was of the opinion that diagnostically it appeared that Mr. Burton suffers from schizophrenia, paranoid subtype, as well as a personality disorder with strongly antisocial features. He also meets the criteria for diagnosis of paraphilia coercive disorder and for substance abuse disorder (in remission, in a controlled environment). Further, utilizing the risk assessment tools that Dr. Wilkie applied, he concluded that all actuarial measures scored on Mr. Burton indicate that he is a high risk to reoffend in all domains.

[41] In dealing with risk assessment, Dr. Wilson was of the opinion that it is “possible” that Mr. Burton will be able to address his treatment and rehabilitation programming needs in the context of a long term supervision order. He provided five detailed recommendations at the conclusion of his report to assist in the preparation of a treatment and risk management plan for Mr. Burton.

Dr. Gojer

[42] Dr. Julian Gojer obtained his medical degree in India in 1981. He received psychiatric training and work experience in India and the UK. He came to Canada in 1989. He was certified in psychiatry by the Royal College of Physicians and Surgeons in 1991. He worked at the Centre for Addiction and Mental Health in Toronto from 1994 to 2003. He has been in private practice since 2000. He has provided many forensic and risk assessments for the legal community and has testified many times. Dr. Gojer was qualified by me to give expert evidence in respect of forensic psychiatry and risk assessment.

[43] In preparing his assessment, Dr. Gojer reviewed the background material on Mr. Burton and saw Mr. Burton on two occasions. He also reviewed Dr. Wilkie and Dr. Wilson’s reports.

[44] Dr. Gojer essentially concurs in Dr. Wilkie’s diagnosis of Mr. Burton. In his opinion, Mr. Burton is suffering from schizophrenia of an unspecified nature, personality disorder with antisocial traits, polysubstance abuse in remission and Tourette’s disorder. He was also of the opinion that based on the actuarial tools, Mr. Burton was a high risk to reoffend both violently and sexually.

[45] Dr. Gojer notes that the presence of Mr. Burton’s major mental illness which has not been fully treated, his early problems with respect to compliance, his moderate insight into his illness and his use of non-prescription drugs are all aggravating factors in respect of his risk to reoffend.

[46] Dr. Gojer’s opinion is that Mr. Burton’s risk to reoffend cannot be managed on a probation order. In his opinion it is quite clear that without treatment and careful management in the community, Mr. Burton will not be able to control his impulses and is likely to reoffend. As a result, Dr. Gojer’s opinion is that in order for Mr. Burton to be managed in the community, there must be “stringent and coercive” methods to ensure that he complies with treatment, with location of residence and abstinence from non-prescriptive drugs.

[47] Dr. Gojer provided a number of recommendations for Mr. Burton under a long term supervision order to reduce his risk to reoffend to an acceptable level.

a) regular treatment with anti-psychotic medication and psychiatric care for his mental illness;

b) regular screening for drug abuse;

c) accommodation, such as a halfway house, which will restrict his movements and allow him to be monitored by a parole officer on a regular basis;

d) programs for sex offender treatment and substance abuse;

e) counseling to address his past trauma.

f) maintaining and developing pro social supports in the community.

The Law

[48] The dangerous offender and long term offender provisions are set forth in ss. 753 and 753.1 of the Criminal Code as follows:

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

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

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

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

(iii) any behavior 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 behavior in the future is unlikely to be inhibited by normal standards of behavioural restraint.

(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.

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

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

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

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

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

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

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

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

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

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

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

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

[49] A “serious personal injury offence” is defined in s. 752(a) to be an indictable offence, other than high treason, first degree murder or second degree murder, involving the use or attempted use of violence against another person or conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person and for which the offender may be sentenced to imprisonment for 10 years or more.

[50] The primary purpose of the dangerous offender sentencing regime is protection of the public: R. v. Lyons (1987), 1987 25 (SCC), 37 C.C.C. (3d) 1, [1987] 2 S.C.R. 309 (S.C.C.); R. v. Jones (1994), 1994 85 (SCC), 89 C.C.C. (3d) 353, [1994] 2 S.C.R. 229 (S.C.C.); R. v. Johnson (2003), 2003 SCC 46, 177 C.C.C. (3d) 97, [2003] 2 S.C.R. 357 (S.C.C.).

[51] While the Crown bears the onus of proof beyond a reasonable doubt to establish the offender meets the dangerous offender criteria, the onus rests on the offender to establish that there is a reasonable possibility of control in the community: R. v. F.E.D. (2007), 2007 ONCA 246, 222 C.C.C. (3d) 373 (Ont. C.A.) at paras. 38 – 55.

[52] In order to achieve the goal of protecting the public under the dangerous offender and long term offender provisions, there must be evidence of treatability that is more than an expression of hope and that indicates that the offender can be treated within a definite time period: R. v. McCallum (2005) 2005 8674 (ON CA), 201 C.C.C. (3d) 541, 196 O.A.C. 101 (Ont. C.A.).

Dangerous Offender

[53] The first issue to determine under s. 753 is whether the offence of assault causing bodily harm is a “serious personal injury offence” as defined by s. 752. The offence of assault causing bodily harm, as provided in s. 267(b) of the Criminal Code involves the use of violence. Further s. 267 provides for a maximum penalty of imprisonment for a term not exceeding 10 years. Accordingly, assault causing bodily harm is a “serious personal injury offence”.

[54] The next step is to determine whether Mr. Burton “constitutes a threat to the life, safety or physical or mental well-being of other persons,” in any of the ways set out in s. 753(1)(a)(i) or (ii) or (b).

[55] In my view, the evidence of Mr. Burton’s criminal history coupled with the evidence of the doctors clearly establishes a “ pattern of repetitive behavior … showing a failure to restrain his behavior and a likelihood of causing death or injury to other persons … through failure in the future to restrain his behavior.” (s.753(1)(a)(i)).

[56] Mr. Burton’s criminal record from 2002 through to and including the present offences reveals a clear and unsettling pattern of aggression, violence, impulsivity and a consistent failure to control his behavior.

[57] Both Dr. Wilkie and Dr. Gojer reference Mr. Burton’s pattern of violent behavior and his inability to restrain himself in their reports. Dr. Gojer states at p. 17 of his report:

It is clear that Mr. Burton has a history of violent offending that also includes sexual violence. This pattern of offending has been there since his young offender days and has persisted into adulthood. His offending has caused physical, emotional and sexual harm to his victims. I do not see his offending as brutal, but it is quite clear that without careful treatment and management in the community he will not be able to control his impulses, he is likely to reoffend and it is likely that someone will be on the receiving end of his violence.

[58] The danger posed by Mr. Burton is further enhanced by the unpredictable nature of his pattern of behavior which is impacted by his major mental illness. As Dr. Wilkie points out, however, Mr. Burton’s impulsive behavior has also occurred when symptoms of his mental illness have been adequately attenuated.

[59] Further, the evidence of all three doctors establishes that Mr. Burton is a high risk to reoffend, both violently and sexually.

[60] I am also satisfied that the evidence establishes that Mr. Burton’s actions establish a pattern of aggressive behavior, showing a substantial degree of indifference on the part of the offender respecting the reasonable foreseeable consequences of others. (s. 753(1)(a)(ii))

[61] As a result, I find the evidence establishes beyond a reasonable doubt that Mr. Burton meets the criteria to be designated a dangerous offender under s. 753(1) of the Criminal Code.

[62] Section 753(4.1) of the Criminal Code provides that where the court finds an offender to be a dangerous offender, it shall impose an indeterminate sentence “unless it is satisfied by the evidence adduced during the hearing …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.” The lesser measures under paragraph (4)(b) or (c) are (b) a sentence of imprisonment for two years or more and a long term supervision order for a period of not exceeding 10 years and (c) a sentence for the offence in question.

[63] As noted, the evidence, including that of the three doctors, establishes that Mr. Burton is a high risk to reoffend in both a physically violent and sexual manner. Further, both Dr. Gojer and Dr. Wilson testified that a period of probation for Mr. Burton would not provide him with the structure, level of service and intensity of supervision that Mr. Burton needs in order to manage his risk to the public. They both referred to the s. 810.2 order and the fact that, despite a number of conditions, it had no deterrent effect on Mr. Burton in respect of the current offences.

[64] Accordingly, I am not satisfied there is a reasonable expectation that the imposition of a sentence for the offences in question here with the ultimate release to the community via parole or probation would adequately protect the public against Mr. Burton committing murder or a serious personal injury offence.

[65] The central issue on this hearing is whether the imposition of a long term supervision order would adequately protect the public from the risk of Mr. Burton committing a further violent offence.

Long Term Offender

[66] In order to impose a long term supervision order, the offender must be found to be a long-term offender under s. 753.1(1) of the Criminal Code. That section provides that in order to find that the person is a long term offender, the court must be satisfied of three things. First, that a sentence of two years or more would be imposed for the offence the offender has been convicted of; second, that there is a substantial risk that the offender will reoffend and third that there is a reasonable possibility of eventual control of the risk in the community.

[67] Having regard to the circumstances of the offence of assault causing bodily harm in this case and the circumstances of Mr. Burton, particularly his criminal record, in my view a sentence of more than two years would be imposed in respect of Mr. Burton’s conviction for assault causing bodily harm. The assault was particularly vicious. Although Mr. Aivalis’ injuries were not life threatening they were serious and caused him significant discomfort. A strong aggravating fact is that the assault occurred while Mr. Burton was subject to a s.810.2 order. Further, Mr. Burton has a number of prior assault convictions, including two for assault causing bodily harm.

[68] I am also of the view for the reasons already stated that the evidence establishes there is a substantial risk that Mr. Burton will reoffend.

[69] The main issue in determining whether Mr. Burton is a long term offender and therefore subject to the imposition of a long term supervision order is whether the evidence establishes that there is a reasonable possibility of eventual control of Mr. Burton’s risk to reoffend in the community.

[70] All three doctors are essentially in agreement in respect of Mr. Burton’s clinical diagnosis. Further, all three doctors were of the opinion that Mr. Burton is actuarially a high risk to reoffend both violently and sexually. They are also essentially in agreement in respect of the treatment that Mr. Burton should receive and the restrictions that should be imposed on him going forward. In particular they agree that it is necessary to treat Mr. Burton’s major mental illness and to treat his other issues including his antisocial personality traits and his substance abuse problem. Where they disagree is with respect to Mr. Burton’s prognosis for treatment and whether, even with such treatment and programs, Mr. Burton can be satisfactorily managed in the community to control his risk of reoffending.

[71] The defence has submitted that the opinions of Dr. Wilson and Dr. Gojer should be preferred over that of Dr. Wilkie given their years of experience compared to Dr. Wilkie. I disagree. Having read Dr. Wilkie’s report and listened to her testify in the witness stand at some length, I consider that Dr. Wilkie has more than enough experience in the area of forensic psychiatry and risk assessment both by education and practice to match the other doctors. It is not simply about grey hair. I was impressed with all of the doctors and the professional way in which they gave their evidence. As I noted, for the most part they are in agreement with respect to their assessment of Mr. Burton. To the extent there is a disagreement, however, I prefer the evidence of Dr. Wilkie.

[72] As noted, all of the doctors agree that it is necessary to treat Mr. Burton’s major mental illness. In that regard, it is Dr. Wilkie’s opinion that while Mr. Burton should benefit from treatment for schizophrenia, he has evidenced “behavioural dyscontrol” in the absence of psychotic symptoms. Further, she states that in respect of Mr. Burton’s diagnoses of antisocial personality disorder and substance abuse/dependence, they are considered difficult to treat and the prognosis for successful treatment is poor (Exhibit 9, page 84). Related to the success of treatment, is Dr. Wilkie’s opinion, which I accept, that it is difficult to manage psychopathy in the community given the absence of proximate risk indicators of the offending behavior.

[73] Dr. Gojer notes that regular treatment with an antipsychotic drug and ongoing psychiatric follow up can keep Mr. Burton symptom free and absent a psychosis. He does not address the treatment of Mr. Burton’s antisocial personality disorder and he provides no opinion on Mr. Burton’s prognosis concerning its treatment or treatment for his substance abuse/dependence or the time frame involved. Dr. Wilson does not address the issue of prognosis for Mr. Burton’s treatment of his mental issues.

[74] In my view, the evidence establishes there is some doubt that Mr. Burton’s medical issues can be successfully treated to address his behavioural issues and even if they can, what the time frame for such treatment is or whether such resolution will resolve his behavioural issues.

[75] I also have concerns in respect of the manageability of Mr. Burton’s treatments and programming if he is released to the community under a long term supervision order. There are a number of management issues which are all interrelated and which directly impact on Mr. Burton’s risk to reoffend. In particular, I refer to medication compliance, substance abuse, willingness to undergo treatment, preventing him from associating with other individuals who have been in trouble with the law and compliance with court orders.

[76] Taking medication on a regular basis is a very important part of managing Mr. Burton’s schizophrenia. Without it, his risk of experiencing symptoms of schizophrenia increases which in turn may lead to aggressive behavior on his part.

[77] While Mr. Burton has been compliant with taking his medication while he has been in custody for the current offences that has not always been the case. The record indicates and Mr. Burton admits that a number of times in the past, he has not taken his medication.

[78] The doctors all agree that in the absence of taking his medication, Mr. Burton’s schizophrenia symptoms will return which may result in aggressive behavior. The failure to take medication can be a symptom of the disease (lack of insight) and it can also arise because of the unpleasant side effects which may result. Both reasons account for Mr. Burton’s failure to take his medication in the past. While he has indicated that he will continue taking his medication, I am not convinced that will happen outside the controlled setting he has been in. It is clear that during the assessment period, Mr. Burton still did not have a clear appreciation of the need to take his medication. He told Dr. Wilkie that he didn’t have to take it. His lack of insight into the need to take his medication impacts directly, in my view, on his manageability in the community.

[79] The defence submits that a discussion of Mr. Burton’s past is not indicative of the present. While that may be, it is clearly relevant to the future. All of the doctors looked at and relied upon Mr. Burton’s past actions in considering their assessment.

[80] The defence further submits that one of the terms of long term supervision order should be to require Mr. Burton to take his medication, by injection if necessary. If he does not, he will be found non-compliant and returned to custody. Apart from the difficulties of forcing someone to take medication, my concern with that submission is that between the time Mr. Burton stops taking his medication and he is apprehended for the breach, his illness may have impacted on his behavior and in turn endangered the public. The damage will have been done.

[81] Substance abuse is another concern. Mr. Burton indicated to Dr. Wilkie that he did not believe he had a substance dependent problem. In Dr. Wilkie’s opinion, this lack of insight is troubling in terms of manageability and future risk. I agree.

[82] Substance abuse has been a consistent issue for Mr. Burton. He has three prior convictions for drug related offences. When he was arrested for the current offences, he was in possession of cocaine. Dr. Gojer testified that the use of cocaine or marijuana is like “poison” to someone with schizophrenia. Both Dr. Wilkie and Dr. Gojer said that substance use makes the symptoms of schizophrenia worse thereby increasing risk. Mr. Burton’s substance abuse issues impact on his manageability in the community.

[83] The record also indicates that Mr. Burton has had numerous opportunities in the past to participate in programs or treatment and has not done so. In fairness, he has completed some programs including schooling. While subject to the s. 810.2 order he refused to participate in the Sex Offender Treatment program. Based on the evidence, when Mr. Burton is left to his own devices, I am not certain as to his willingness to attend all of the programs that have been recommended.

[84] There is no question that some of Mr. Burton’s issues arise from the company he has kept. Sara Fuller is the most recent example. Drs. Wilson and Gojer recommend that he be prohibited from associating with others who have been in trouble with the law. I am not confident that such a condition can be managed outside a custodial setting given Mr. Burton’s current issues.

[85] Finally, Mr. Burton has a significant history of disobeying and not following court orders. The offences before the court for breaches of his s. 810.2 order are the most recent examples of this continual behavior. This conduct also impacts significantly on his manageability in the community.

Conclusion

[86] In conclusion, therefore, I am not satisfied, based on the evidence, that at the present time, there is a reasonable possibility of eventual control of Mr. Burton’s risk to reoffend in the community. I have reached this conclusion for two reasons.

[87] First, based on Dr. Wilkie’s evidence, I am not satisfied that all of Mr. Burton’s mental health issues can be satisfactorily treated to manage the risk. Successful treatment is crucial to the management of his risk.

[88] Second, I am also not satisfied that if the various conditions proposed by the doctors are put in place, Mr. Burton’s risk of reoffending can be managed in the community to ensure there would be no danger to the public. There are simply too many factors at play to ensure proper management of the risk will result.

[89] Given the various factors that must be managed for Mr. Burton, it is my view that they are best managed in a controlled custodial setting. It is clear from his past that in the absence of strict supervision Mr. Burton has difficulty adhering to orders or conditions. I am not satisfied, even with the increased supervision that may accompany a long term supervision order, that Mr. Burton’s risk can be controlled in the community at this stage.

[90] That is not to say that it can’t change. It is, however, is up to Mr. Burton. If he complies with his correctional plan and engages in the treatment and programs outlined by the doctors and they are successful, there is every possibility that his risk can be managed satisfactorily in the community thereby leading to his parole. That will be up to the parole board to assess in due course.

[91] Based on the evidence and for the reasons given, I declare Mr. Burton to be a dangerous offender and impose a sentence of detention in the penitentiary for an indeterminate period.

[92] In addition to these reasons, I order that copies of the exhibits, including each of the doctors’ reports and the transcripts be forwarded to CSC and request that particular regard be paid to the recommendations for the treatment and programs for Mr. Burton that have been recommended by the doctors.

L. A. Pattillo J.

Released: May 29, 2013

SCHEDULE “A”

R. v. JERMAINE BURTON CRIMINAL RECORD

DATE	CONVICTION	SENTENCE
1999/12/20	Assault	Conditional Discharge, 1 year probation.
2000/01/19	Assault, Fail to Attend Court	20 days secure custody, 18 months probation.
2000/02/29	Unauthorized Possession of a Prohibited or Restricted Weapon	3 months secure custody, 3 months open custody, 2 years probation.
2001/01/19	Uttering Threats, Dangerous Operation of a Motor Vehicle, Fail to Comply with Recognizance, Obstruct Peace Officer	30 days secure custody, prohibited from driving 12 months, mandatory prohibition order.
2001/05/31	Robbery, Use imitation firearm during commissions of an Offence	4 months secure custody, 4 months open custody, 18 months probation, prohibition order.

ADULT RECORD

DATE	CONVICTION	SENTENCE
2002/05/13	Sexual Assault	10 months custody after 7 months pre-sentence custody, 3 years’ probation, discretionary prohibition order.
2003/04/17	Assault Causing Bodily Harm	30 days custody after credit for the equivalent of 9 months pre-sentence custody & a mandatory prohibition order.
2003/05/22	Assault x 3	7 days concurrently in addition to 10 days pre-sentence custody, 1 year probation & a discretionary prohibition order.
2003/07/14	Fail to Comply with Probation Order	10 days’ custody after 4 days pre-sentence.
2004/01/05	Fail to Comply with Probation Order	1 day custody after 47 days pre-sentence custody.
2004/04/13	Fail to Comply with Probation Order	15 days custody after 29 days pre-sentence custody.
2004/10/06	Possession of a Schedule I substance, Fail to Comply with Probation Order x 2	Suspended sentence, 6 months probation.
2005/09/01	Assault Causing Bodily Harm	Suspended sentence, 1 month probation.
2005/09/05	Fail to Comply with Probation Order	Suspended sentence, 12 months probation.
2006/05/31	Possession of a Schedule III Substance for the Purpose of Trafficking, Possession of the Proceeds Obtained by Crime	1 day custody on each charge concurrently after credit for 3 months 4 days pre-sentence.
2007/03/06	Traffic in Schedule I Substance, Fail to Comply with Recognizance	75 days in custody on each charge concurrently after credit for 66 days presentence custody.
2007/12/10	Sexual Assault, Assault Peace Officer	3 years 2 months custody after 193 days pre-sentence custody.

CITATION: R. v. Burton, 2013 ONSC 2625

COURT FILE NO.: 11-70000590-0000

DATE: 2013-05-24

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

• and -

JERMAINE BURTON

REASONS FOR JUDGMENT

L. A. PATTILLO J.

Released: May 29, 2013