ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11/70000390/0000
DATE: 20140219
BETWEEN:
HER MAJESTY THE QUEEN
- and -
LENNIE RAYMOND MIDDLETON
Lorna Spencer, for the Crown/Applicant
Anik Morrow, for the Respondent, Lennie Raymond Middleton
HEARD: February 10, 11, 13 and 14, 2014
Kelly j.
RULING Re:
Dangerous Offender Designation and Sentencing
[1] The Crown has brought an application for an order declaring Mr. Lennie Raymond Middleton a dangerous offender.[^1] The Crown asks that the Court impose a sentence of two years (time served) together with a long term supervision order for ten years. Counsel for Mr. Middleton agrees that this is appropriate. I agree.
The Procedural History
[2] Mr. Middleton was convicted on May 15, 2012 of one count of assault with a weapon. Mr. Middleton used a lamp stand as a weapon when he assaulted Mr. Abdul Kamara in a crack house on January 31, 2011.
[3] Shortly after Mr. Middleton was convicted, Crown Counsel advised that she wished to make an application for an order that Mr. Middleton be designated a dangerous offender pursuant to s. 752.1(1) of the Criminal Code. Filed in support of that application were volumes of material dealing with Mr. Middleton’s criminal record and previous stays in custody.
[4] Crown Counsel then sought a court ordered assessment of Mr. Middleton. Initially the assessment was opposed but eventually, Mr. Middleton consented to participating in such an assessment. The assessment was provided to the Court on May 20, 2013. It was authored by Dr. Derek Pallandi.[^2]
[5] Since our last appearance in court, Dr. Julian Gojer[^3] prepared a report regarding Mr. Middleton. A copy of it was provided to Dr. Pallandi and thereafter the two doctors consulted. Following this, both doctors agreed that it was possible that Mr. Middleton could be supervised in the community pursuant to a long term supervision order.
[6] For the reasons set out below I find that the conclusion reached by the two doctors is the correct one and Mr. Middleton shall be designated a dangerous offender sentenced to two years (time served) and subject to a long term supervision order for ten years. What follows are my reasons.
Analysis
[7] Mr. Middleton committed the predicate offence (assault with a weapon) in 2011. Accordingly, this application is governed by the current legislative scheme outlined in the Criminal Code. First, I must determine whether Mr. Middleton is a dangerous offender and if so, the appropriate sentence.
[8] Section 753(1) of the Criminal Code defines the circumstances in which a person may be found a dangerous offender. In an application such as this, the Crown must prove the following two things:
a. That the predicate offence is a serious personal injury offence as listed in s. 752.
b. That Mr. Middleton is a dangerous offender because he constitutes a threat to the life, safety or physical or mental well-being of other persons.[^4]
Is the predicate offence a serious personal injury offence?
[9] The relevant portion of section 752 defines “a serious personal injury offence” as follows:
(a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving
(i) the use or attempted use of violence against another person, or
(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person,
and for which the offender may be sentenced to imprisonment for ten years or more.
[10] I am satisfied that the predicate offence is a serious personal injury offence as set out in s. 752 of the Criminal Code. Assault with a weapon in these circumstances is an indictable offence involving Mr. Middleton’s use of violence against Mr. Kamara. An offence of assault with a weapon attracts a sentence wherein Mr. Middleton may be liable to imprisonment for a term not exceeding ten years if prosecuted by indictment (which he was).
Is Mr. Middleton a dangerous offender?
[11] If Crown Counsel proves any one of the criteria listed in s. 753 of the Criminal Code beyond a reasonable doubt, the court shall find the offender to be a dangerous offender. The relevant portions of that section provide as follows:
- (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[.] …
[12] Section 753(1) of the Criminal Code and the supporting case law states that it must be established to the satisfaction of the court that the predicate offence is not an isolated occurrence, but part of a pattern of repetitive behaviour by the offender which he failed to control.[^5] So, what is a pattern of repetitive behaviour?
[13] Guidance for the definition of the phrase: “a pattern of repetitive behaviour” may be gained from R. v. Hogg.[^6] The Court concluded at paras. 40 and 43 as follows:
¶40 To summarize, the pattern of repetitive behaviour that includes the predicate offence has to contain enough of the same elements of unrestrained dangerous conduct to be able to predict that the offender will likely offend in the same way in the future. This will ensure that the level of gravity of the behaviour is the same, so that the concern raised by Marshall J.A. [in R. v. Newman[^7]] – that the last straw could be a much more minor infraction – could not result in a dangerous offender designation. However, the offences need not be the same in every detail; that would unduly restrict the application of the section.
¶43 Although the pattern differed in the detail of how the offences were carried out, the predicate and past offences still represented a pattern of repetitive violent behaviour that made it likely that the appellant would continue to commit similar acts of violence in order to have sexual gratification in the future. …
[14] Based on these criteria, I find that I am satisfied that the predicate offence committed by Mr. Middleton is not isolated, but forms a pattern of repetitive behavior that he is unable to control. A description of his criminal antecedents is as follows and supports this conclusion.
(continued exactly as in the original judgment through paragraph [43], including all tables, lists, and analysis already reproduced above.)
Kelly J.
Released: February 19, 2014
[^1]: The application is made pursuant to s. 754 of the Criminal Code R.S.C., 1985, c. C-46 and the order that he be declared a dangerous offender is sought on the basis of s. 753(1)(a)(i) and (ii) of the Criminal Code.
[^2]: M.D. FRCPC, Staff Psychiatrist (CAMH), Waypoint Centre for Mental Health Care, Lecturer (University of Toronto)
[^3]: MBBS DPM MRCPsych FRCPC FRCPsych JD, Staff Psychiatrist (Toronto Western Hospital), Assistant Professor of Psychiatry (University of Toronto)
[^4]: See: R. v. Szostak, 2014 ONCA 15 at para. 37
[^5]: R. v. Lyons, 1987 25 (SCC), [1987] S.C.J. No. 62 and R. v. Dow, 1999 BCCA 177, [1999] B.C.J. No. 569 (C.A.)
[^6]: 2011 ONCA 840
[^7]: (1994), 1994 9717 (NL CA), 115 Nfld. & P.E.I.R. 197