COURT FILE NO.: CR/11/500000/200000
DATE: 20140626
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and -
ROBERT RICHARDS
Respondent
Ms. Sunita Malik and Ms. Sarah Leese, for the Crown/Applicant
Ms. Mary Cremer, for the Respondent, Mr. Robert Richards
HEARD: April 14, 16, 17, 22, 23 & 30; May 6 and June 9, 2014
Kelly j.
RULING Re:
Dangerous Offender Designation and Sentencing
[1] On May 28, 2009 in Toronto, Mr. Richards preyed on a vulnerable woman working alone in a small flower shop. He entered the store. He robbed her, wrapped a cable cord around her neck, strangled her and punched her. He cut her throat and her face. He attempted to murder her. This was not the first time Mr. Richards has executed such violence on an unsuspecting woman.
[2] On July 11, 2009 in Orangeville Mr. Richards again preyed on a vulnerable woman working alone in a small clothing store. He robbed this victim, threw her to the ground, tied her up, wrapped a cord around her neck and started to choke her. He stabbed her repeatedly in the chest, stomach, neck, head and wrist area. Again, Mr. Richards attempted to kill her. She played dead. After washing his hands and stealing a coat, Mr. Richards kicked the victim in the back as he walked out of the store only to steal her Volvo and drive away.
[3] Mr. Richards pleaded guilty to the Orangeville offences and was sentenced by Durno J. to 13 years in prison. He pleaded guilty, before me, to the Toronto offences. He now comes before me for sentencing.
[4] Crown Counsel has brought an application for an order declaring Mr. Richards a dangerous offender.[^1] She asks that the Court impose an indeterminate sentence. Counsel for Mr. Richards concedes that Mr. Richards is properly designated a dangerous offender. However, she submits that the appropriate sentence is a determinate one of 15 to 20 years or a determinate sentence followed by a long-term supervision order for 10 years.
[5] I find that Mr. Richards is properly designated a dangerous offender and I order that he be subject to an indeterminate sentence. What follows are my reasons.
The Procedural History
[6] In May, 2012 Mr. Richards was convicted (by me) of attempt murder, robbery, forcible confinement and overcome resistance by choking in relation to the Toronto offences. These are the predicate offences that caused Crown Counsel to bring an application to have Mr. Richards designated a dangerous offender pursuant to s. 752.1(1) of the Criminal Code.
[7] Crown Counsel then sought a court ordered assessment of Mr. Richards pursuant to s. 752.1(2) of the Criminal Code. Mr. Richards consented. The assessment was provided to the Court by Dr. Philip E. Klassen[^2] and is dated April 1, 2013.
[8] Dr. Jeff McMaster[^3] provided a risk assessment report at the request of Counsel for Mr. Richards. It was completed on April 10, 2014 and provided to the Court. Both psychiatrists testified before me during the evidentiary portion of this hearing. Other evidence was called and significant materials were filed for consideration.
An Overview of the Legislative Scheme
[9] Mr. Richards committed the predicate offences on May 28, 2009. Accordingly, this application is governed by the current legislative scheme outlined in the Criminal Code enacted in 2008.
[10] Section 753(1) of the Criminal Code defines the circumstances in which a person may be designated a dangerous offender. In an application such as this, Crown Counsel must prove the following two things:
a. that the predicate offence is a serious personal injury offence as listed in s. 752; and
b. that Mr. Richards is a dangerous offender because he constitutes a threat to the life, safety or physical or mental well-being of other persons.
[11] Should Mr. Richards meet the definition of a dangerous offender, the court “shall” designate him as such. There is no discretion. The court’s discretion is found in the application of the appropriate sentence in s. 753(4) of the Criminal Code.
[12] Section 753(4) permits the following sentences to be imposed once a person has been designated a dangerous offender: indeterminate detention; at least 2 years’ imprisonment and a long-term supervision order of up to 10 years; or a conventional determinate sentence.
[13] In light of this legislative scheme I will now consider on what basis Mr. Richards is designated a dangerous offender. I will then address the appropriate sentence.
Is Mr. Richards a Dangerous Offender?
[14] To determine whether Mr. Richards is a dangerous offender, the court is required to first consider whether the predicate offences are “serious personal injury offences” and secondly, to determine whether Mr. Richards constitutes a threat to other persons as defined in s. 753.(1)(a)(i), (ii) or (iii) of the Criminal Code.
a. Are the predicate offences “serious personal injury offences”?
[15] 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 10 years or more.
[16] I am satisfied that the predicate offences are serious personal injury offences as defined by s. 752 of the Criminal Code. Attempt murder[^4] in these circumstances is an indictable offence involving Mr. Richards’ use of violence against the victim. Attempt murder, on its own, may attract a life sentence and accordingly, Mr. Richards may be sentenced to imprisonment for 10 years or more. Counsel for Mr. Richards conceded this aspect of the application.
b. Does Mr. Richards constitute a threat?
[17] The next consideration is to determine on what basis Mr. Richards is properly designated a dangerous offender. If Crown Counsel proves any one of the criteria listed in s. 753(1) 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 behavior, 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 behavioral restraint; …
[Emphasis added]
i. Is the predicate offence part of a pattern of repetitive behavior pursuant to [s. 753(1)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)(a)(i) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)?
[18] Section 753(1)(a)(i) 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] Counsel for Mr. Richards concedes that the two incidents upon which this application is brought are sufficient to establish a pattern beyond a reasonable doubt. I agree.
[19] Guidance for the definition of the phrase: “a pattern of repetitive behaviour” may be found in the case of 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. …
[Footnote added]
[20] Based on these criteria, I find that I am satisfied that the predicate offence committed by Mr. Richards is not isolated, but forms a pattern of repetitive behavior that he is unable to control. A description of his last two convictions is as follows. In my view, they support this conclusion.
The 2012 Convictions for Attempt Murder, etc. committed in Toronto, Ontario on May 27, 2009 (Victim: Ms. Wernoika Kazmierczak)
[21] In May 2012, Mr. Richards pleaded guilty to attempt murder, robbery, forcible confinement and overcome resistance by choking: the predicate offences. The facts giving rise to the pleas may be summarized as follows:
a. On May 27, 2009, the victim, Ms. Wernoika Kazmierczak was 26 years of age. She was working in a flower shop that she owns: “Flowers by Sophie”.
b. Ms. Kazmierczak was working alone in the shop. At approximately 4:00 p.m. Mr. Richards entered the store looking for a particular flower. He engaged in conversation with Ms. Kazmierczak and told her that he wanted a bouquet two days later. He left the store and returned approximately 30 minutes later. He placed an order using the name “Steve”.
c. The very next day, Thursday May 28, 2009, at approximately 11:00 a.m., Ms. Kazmierczak was working alone, again. She was sitting at the rear of the store. She heard the front door open as the bells chimed. She stood up and looked to see who had entered and saw Mr. Richards. As Ms. Kazmierczak greeted Mr. Richards, he quickly walked up the steps to her and said “hello”. He put her in a headlock and demanded money.
d. Mr. Richards then forcefully dragged Ms. Kazmierczak from the back of the store towards the front, where the cash register was located. Ms. Kazmierczak was ordered to open the cash register and upon discovering a small amount of cash, Mr. Richards yelled, “Is that it?” He then asked where her purse was, and Ms. Kazmierczak pointed to the drawer below the cash register. Mr. Richards removed her purse with one hand, while continuing to maintain a hold around Ms. Kazmierczak’s neck with his other hand.
e. Mr. Richards then forcefully took Ms. Kazmierczak back to her work area, at the rear of the store. He ordered her to sit and then released his grip around her neck. Mr. Richards ordered Ms. Kazmierczak to open her purse, as he stood behind her. She complied with his request and found $200, in her wallet, which she handed over to Mr. Richards. He again yelled at her “is that it?” and she located another $70, in another compartment of her wallet, which she also turned over to Mr. Richards.
f. Ms. Kazmierczak advised Mr. Richards that she had nothing left in her purse, and at this moment he became very agitated. Mr. Richards then began interrogating Ms. Kazmierczak about the existence of security surveillance cameras. Ms. Kazmierczak replied “we don’t have any”. He became even more agitated and repeated to that she was lying.
g. Mr. Richards then located an internet modem, situated on top of the microwave, which he believed was connected to surveillance cameras. He picked it up and smashed it to the ground and continued to break it. Ms. Kazmierczak described the accused then went “beserk”. Again, Ms. Kazmierczak pleaded with Mr. Richards and advised him that the flower shop was not equipped with any surveillance cameras. She pointed out to Mr. Richards that it was an internet cable cord connected to the modem and not to any surveillance cameras.
h. Mr. Richards then picked up the cable cord and walked behind Ms. Kazmierczak. He wrapped the cord tightly around her neck, attempting to strangle her.
i. Ms. Kazmierczak could barely breathe but began to struggle with Mr. Richards. She felt as though she was going to become unconscious. The accused continued to strangle her with one hand and also began punching her about her face with the other hand. Ms. Kazmierczak recalled that Mr. Richards was armed with some type of sharp object (possibly a knife) that he used to cut her around her throat area and her face, as he continued to punch her.
j. Ms. Kazmierczak recalls that Mr. Richards punched her so many times she felt he was trying to knock her unconscious.
k. During this assault, Ms. Kazmierczak attempted to reach the back door and at some point she managed to break free from Mr. Richards’ grasp and ran out the back door yelling for help. Ms. Kazmierczak was aided by her neighbour, who called 911. The police attended the flower shop and observed Ms. Kazmierczak bleeding from what appeared to be several puncture wounds to her face and neck. She was transported by ambulance to St. Joseph’s hospital.
l. The injuries Ms. Kasmierczak sustained were as follows: 6-7 puncture wounds on face, 1 puncture wound on neck, 1 puncture wound on elbow, ligature marks on neck, both eyes were black and swollen, lost wisdom tooth (from the punch) and muscle soreness to entire body.
m. Ms. Kazmierczak identified Mr. Richards from a photo lineup. He had been in a rental motel nearby. The police seized a computer from the hotel room. Their investigation of this computer revealed that the Internet had been searched for articles regarding this incident.
The 2011 Convictions for Attempt Murder, etc. committed in Orangeville, Ontario on July 11, 2009 (Victim: Ms. Lenore Wirtz)
[22] Mr. Richards was previously convicted of attempt murder in 2011 despite the fact that this offence postdated that outlined above. The facts giving rise to this conviction may be summarized as follows:
a. On July 11, 2009, Ms. Lenore Wirtz was working as a part-time sales clerk in a store called Creekside Clothing located in Orangeville. It was her first day on the job and she was working alone.
b. Mr. Richards entered the store at approximately 4:30 p.m. He picked out a skirt, advising Ms. Wirtz that he wished to purchase it for his girlfriend. He asked Ms. Wirtz to hold up the skirt so that he could take a picture and e-mail it to his girlfriend. She did. He left.
c. Shortly before closing, Mr. Richards returned to the store. He selected a skirt and a pair of men’s shorts. He told Ms. Wirtz that he forgot his wallet. Ms. Wirtz told Mr. Richards that she would put the items on hold until Monday. Mr. Richards provided her with a false name.
d. Thereafter, Mr. Richards lunged at Ms. Wirtz and grabbed her breasts. She asked: “What the fuck are you doing?” to which Mr. Richards responded: “oh, what, you didn’t like that?”
e. Mr. Richards then grabbed Ms. Wirtz and pushed her to the back of the store. Ms. Wirtz screamed and he demanded that she stop. Ms. Wirtz pleaded with Mr. Richards that she had three children and arthritis. He pushed her to the ground in the back room of the store. He straddled her and covered her mouth. He put his thumbs over her eyes and pushed on her eyeballs.
f. Mr. Richards then got off of Ms. Wirtz. He asked her how much money she had. She told him that she had no money personally but offered him some money from the store. She directed Mr. Richards to the money but he did not take it. He then directed Ms. Wirtz to lock the door to the store and put the “closed” sign in the window.
g. Mr. Richards then took Ms. Wirtz to the back room of the store. He sat her down and choked her with a rope. Mr. Richards then pulled out a knife and stabbed her in the chest, neck, head, stomach and wrist. More than 20 stab wounds were inflicted. Mr. Richards only stopped stabbing Ms. Wirtz when he cut himself.
h. Ms. Wirtz stood up but Mr. Richards pushed her down. She then played “dead”. Mr. Richards proceeded to wash himself, took a coat and kicked her in the back before leaving the store. He took Ms. Wirtz’ keys and telephone. Mr. Richards left in her car: a Volvo.
i. Ms. Wirtz managed to get herself out of the store and onto the sidewalk where she was discovered by another. She was airlifted to Sunnybrook Heath Sciences Centre for treatment. She lost six of seven units of blood in her body. She suffered approximately 20 stab wounds to her body. The majority of these were to her chest and stomach. Several of the stab wounds punctured her lungs and reached other internal organs.
j. Mr. Richards drove to the home of a friend and mother of his child: Ms. Catherine Dambrauskas. She noticed that he was driving a Volvo and made some inquiries. He told her “not to worry about it”. She also noticed blood on his new shoes and Mr. Richards said: “I saw what you looked at, you saw nothing.” He later texted Ms. Dambrauskas and said: “If you haven’t figured it out, it wasn’t me.”
k. Mr. Richards was arrested the following day and gave an inculpatory statement.
[23] Repetitive behavior is established on the basis of the two incidents that Mr. Richards orchestrated in May, 2009 and again in July, 2009. There are common elements to both offences which may be summarized as follows:
a. both victims were women;
b. both victims were working alone in retail stores at the time of the offences;
c. the offences occurred during daylight hours;
d. prior to the assaults, Mr. Richards had entered the store posing as a legitimate customer, engaging in conversation with both victims;
e. Mr. Richards provided a false name to the victims;
f. Mr. Richards returned to the stores a second time;
g. Mr. Richards demanded money and he took money;
h. when there was no money or not enough, the violence escalated;
i. a knife or sharp instrument was used in both incidents;
j. there was choking, stab wounds, punches, etc. involved in both assaults; and
k. there was unprovoked violence inflicted on both women who were cooperative and provided little resistance to Mr. Richards during the incident.
[24] I am satisfied that based on the totality of the circumstances, the predicate offences were not isolated occurrences, but part of repetitive behaviour by Mr. Richards. The crimes described above are violent in nature. There is similarity not only with respect to the types of offences committed by Mr. Richards, but also in the degree of violence or aggression inflicted on his victims that give rise to the pattern of repetitive behaviour.[^8] As such, I designate Mr. Richards a dangerous offender pursuant to s. 753(1)(a)(i) of the Criminal Code.
ii. Has Crown Counsel satisfied the indifference requirement pursuant to s. 753(1)(a)(ii)?
[25] As I have stated, counsel for Mr. Richards conceded that Mr. Richards is properly designated a dangerous offender based on the pattern of behavior. Where Counsel differ is in the application of s. 753(1)(a)(ii) of the Criminal Code. This section requires that Crown Counsel demonstrate a pattern of persistent and aggressive behavior with a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to others.
[26] Section 753(1)(a)(ii) is intended to deal with an individual who is callous and remorseless. A consideration of this particular section may be relevant to the sentence imposed, despite the admission of Counsel for Mr. Richards that he is properly designated a dangerous offender.
[27] A review of Mr. Richards’ behavior is not limited to the time of the offence, but the attitude of the offender may be examined more broadly to identify the “truly evil personality type who has no compassion for others at any time”.[^9] Does Mr. Richards care about the likely consequences of his actions? Or is he indifferent to the damage his conduct may cause?[^10]
[28] There is no doubt that Mr. Richards was indifferent to the damage he caused at the time he committed the offences. The victims were cooperative and traumatized by Mr. Richards from the start. Despite this, he continued to inflict gratuitous and senseless violence upon them despite the fact that they were badly injured and complied with his demands. He was indifferent to their pleas and indifferent to the consequences of his behaviour. This is especially obvious when he kicked Ms. Wirtz leaving the store as she played dead to end the violence.
[29] Further, Mr. Richards’ indifference to the damage he caused is demonstrated by his conduct between the offences of May, 2009 and July, 2009. Crown Counsel has produced evidence that between the two offence dates Mr. Richards conducted a number of Internet searches regarding the May incident: numerous times and on various dates.[^11]. He also conducted searches following the Orangeville incident.
[30] It appears that Mr. Richards was following the police investigation after the May 2009 offences. During his assessment with Dr. McMaster, he advised that he was scared about being apprehended after he committed the offences in May 2009, but he committed the Orangeville offences two months later despite this fear. This demonstrates an awareness of the consequences of his actions and an indifference to the women themselves.
[31] It is my view that indifference is also demonstrated by Mr. Richards’ conduct following the Orangeville offences in July 2009. He went to the home of Ms. Dambrauskas shortly after the incident. She noticed that he was driving a Volvo and had blood on his shoes. She made some inquiries. He told her “not to worry about it”; “I saw what you looked at, you saw nothing” and later texted: “If you haven’t figured it out, it wasn’t me.” This conduct demonstrates that Mr. Richards was cool and calculating after having acted as a monster just moments prior when brutalizing Mr. Wirtz.
[32] As Counsel for Mr. Richards submits, however, the court must examine more than just Mr. Richards’ behavior at the time of the offences to determine whether Crown Counsel has satisfied the requirement in s. 753(1)(a)(ii). She submits that the following are relevant considerations:
a. That Mr. Richards demonstrated remorse by his pleas of guilt in both incidents.
b. That the pre-sentence report used during the sentencing before Durno J. demonstrated remorse: he accepts responsibility for his actions, saying that he has only himself to blame.
c. The Gladue Report quotes Mr. Richards as saying: these actions “goes against everything I was raised about women – you’re supposed to protect them”.
d. Durno J. found that Mr. Richards was remorseful for his actions, is willing to work towards rehabilitation and is suitable for counselling.
e. During the assessment process at Millhaven, Mr. Richards expressed remorse and said that he recognized how his actions impacted the victim and his own family.
f. During the “In Search of Your Warrior” program at Warkworth Penitentiary the Aboriginal Parole Officer observed that Mr. Richards feels empathy for his victims and feels that his victims would have felt both emotional and physical pain. He acknowledged that they would have been left with a feeling of mistrust of others.
g. In the penitentiary, Mr. Richards has verbalized: “Now I had time to reflect and I feel like a piece of shit. None of them deserved what I put them through.”
h. Mr. Richards told Dr. McMaster that he was to blame for his criminal activities. He told the psychiatrist he was sorry for his crimes and that if he had the opportunity to speak with the victims, he would apologize and tell them that they would not have to continue looking over their shoulders: that he was not coming after them.
i. Based on the actuarial results provided by both Doctors Klassen and McMaster, Mr. Richards does not possess the personality type of a psychopath.
[33] Based on the materials before me, it is unclear as to why Mr. Richards is expressing remorse after he was charged, convicted, sentenced and incarcerated. Is he expressing remorse because he is truly sorry for what he did and the trauma he caused to the victims? Or is he is sorry only because of his current situation: having been caught, charged criminally and incarcerated?
[34] I am satisfied that when viewed as a whole, Mr. Richards has shown a pattern of persistent aggressive behaviour and a substantial degree of indifference respecting the reasonable foreseeable consequences to other persons. I find that this is particularly so in light of his conduct between the two incidents and his comments to Ms. Dambrauskas following the Orangeville incident. Accordingly, I designate him a dangerous offender pursuant to s. 753(1)(a)(ii) of the Criminal Code as well.
iii. Is Mr. Richards’ offence so brutal that the Court is to conclude his behavior is unlikely to be inhibited by normal standards of restraint?
[35] The last prong to be considered in designating Mr. Richards a dangerous offender is found in s. 753(1)(a)(iii) of the Criminal Code. This section requires that the offence is of such a “brutal” nature that the Court is compelled to conclude that the offender’s behavior is unlikely to be inhibited by normal standards of restraint.
[36] In R. v. Campbell,[^12] Justice Hill extensively reviewed the case law surrounding the definition and use of “brutality” in this section. He concluded as follows:
Ascertainment of the existence of brutality will vary with the crime itself, the way in which the offence is committed, the effect(s) on the victim, and the offender's attitude and mental state. Review of the authorities cited at note 1 demonstrates a settled approach to the interpretation of 'brutal' as cruel, savage, inhuman conduct. Depending on case-specific circumstances, many of the cases have involved one or more of the following features: extreme violence inflicting horrendous physical injuries, causing continuing emotional distress"sadistic" or "inhuman" behaviour"gratuitous" or "unnecessary" violence"torture" or "degrading" conduct"prolonged" violence, multiple acts of violence"unprovoked" violence, leaving the victim semi-conscious or unconscious or persisting in violence despite the victim being in such a state, and attacks of vulnerable victims such as an elderly person.
What is immediately apparent, in a most unfortunate sense, is that brutal behaviour is not simply commission of a serious personal injury offence but rather something quite out-of-the-ordinary for such a crime.
[37] Crown Counsel submits that the Court ought to be satisfied the offence against Ms. Kazmierczak was “an offence of such a brutal nature that the court is compelled to conclude that the offender’s behaviour is unlikely to be inhibited by normal standards of restraint.” I will repeat her submissions here.
[38] Mr. Richards entered the flower shop in broad daylight. He surveyed the scene of his attack and later admitted that he probably selected the store because it had few employees. In doing so, he chose a vulnerable victim - a defenseless young woman. Mr. Richards could have stolen the money without any of the violence, as the victim did not resist. She cooperated fully and handed over all the money she had, and even reassured him about the absence of video surveillance. There was no reason to attack Ms. Kazmierczak. Yet Mr. Richards decided to wrap a cord around her neck and strangled her. When she tried to protect herself, he began to repeatedly punch her in the head. When she tried to escape, he repeatedly stabbed her about the face and neck.[^13]
[39] Crown counsel submits that Ms. Kazmierczak’s injuries were very serious; however, it is likely that they did not approach the level of severity of Ms. Wirtz only because she was able to fight back, free herself, and escape. This was not for lack of effort on the part of Mr. Richards. After he choked, beat and stabbed Ms. Kazmierczak, Mr. Richards used the stolen money to purchase alcohol and pay his motel bill, and in the days that followed began searching the Internet for information about the offence. In accordance with the case law, his behaviour could fairly be described as “inhuman”, the violence “gratuitous” or “unnecessary”, and “unprovoked”.
[40] I agree with Crown counsel. The same could be said for the offences in July 2009. The conduct there, too, was inhuman, gratuitous, unnecessary and unprovoked. As such, I find that Mr. Richards meets the criteria for being designated a dangerous offender pursuant to s. 753(1)(a)(iii) as well.
[41] Having concluded that Mr. Richards is properly designated a dangerous offender I will turn to a consideration of the appropriate sentence.
What is the appropriate sentence?
[42] Section 753(4) of the Criminal Code allows the court discretion as to the sentence to be imposed on Mr. Richards, whom I have designated a dangerous offender.[^14] There are three options in sentencing Mr. Richards: the imposition of a determinate sentence; the imposition of a determinate sentence followed by a long-term supervision order; and the imposition of an indeterminate sentence.
[43] Section 753.(4)(1) provides as follows:
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.
[44] I am not satisfied that there is a reasonable expectation that a lesser sentence (ie. a determinate sentence or a determinate sentence followed by a long-term supervision order) will adequately protect the public against the commission of a serious personal injury offence. What follows are my reasons.
i. Is a determinate sentence appropriate?
[45] Counsel submitted that a determinate sentence in the range of 15 to 20 years (consecutive to the sentence he is serving) is appropriate. She further submits that this might be an appropriate case for invoking s. 743.6(1) of the Criminal Code to delay Mr. Richards’ parole.
[46] Counsel submits that the most important principles of sentencing (denunciation, general and specific deterrence and separation from society) can be addressed with a determinate sentence. As stated above, this sentence would be consecutive to the one he is already serving so that he would be in his sixties when released to a halfway house and governed by the Parole Board. As discussed below, his age on release may reduce his risk to the public.
[47] I agree with Counsel that one cannot ignore the person who is currently in custody. Mr. Richards has shown remorse. He has responded to treatment and employment. He has reintegrated with his Aboriginal heritage which appears to be giving him positive reinforcement. He is committed and focused. However, despite these strides made, I continue to have concerns about his future risk and the fact that I remain concerned that a determinate sentence cannot adequately protect the public against the commission by the offender of murder or a serious personal injury offence.
[48] I am of the view that because of Mr. Richards’ background, the opinions of Drs. Klassen and McMaster and the nature of these offences, a determinate sentence is not appropriate. I am of the view that an indeterminate sentence is appropriate and explained more fully below.
ii. Is a determinate sentence together with a Long-Term Supervision Order appropriate?
[49] In considering whether a determinate sentence followed by an long-term supervision order is appropriate, Crown Counsel does not have the onus to prove beyond a reasonable doubt that there is no reasonable possibility of eventual control of the risk posed by the offender to the community. If the sentencing judge is uncertain whether there is a reasonable expectation that a lesser measure will adequately protect the public, then the sentencing judge should exercise discretion and impose an indeterminate sentence.[^15] I am, indeed, “uncertain”.
[50] The protection of the public is the paramount consideration in this exercise of discretion. Our Court of Appeal expressed this principle in R. v. D.V.B.[^16] as follows:
[I]n a contest between an individual offender’s interest in invoking the long-term offender provisions of the Code and the protection of the public, the latter must prevail.[^17]
[51] Our Court of Appeal recently commented on the considerations for imposing an long-term supervision order:
Resort to the long-term offender regime is appropriate only where there is evidence that an offender can be meaningfully treated, so that the offender's risk to the public can be controlled at an acceptable level, within a determinate period of time. A mere hope that treatment will be successful, or simple optimism that there is a reasonable possibility of eventual control of the offender's risk in the community, is insufficient to ground a determinate sentence: R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357.[^18]
[Emphasis added]
[52] I am not satisfied that anything short of an indeterminate sentence will protect the public. Any treatment plan that Mr. Richards can be meaningfully treated is based on hope and optimism. This is insufficient. My finding is based not only on the offences committed and described above, but also on consideration of the following facts regarding Mr. Richards, including the opinions of the two psychiatrists.
Family Background
[53] Mr. Richards is 45 years of age. He is not married but has a daughter (Alexis) who is 9 years of age. At the time of his arrest, Mr. Richards was homeless, unemployed and periodically supported by family.
[54] The childhood history of Mr. Richards appears to have been normal. He was born in Toronto and raised in Mississauga until he was 11 years of age. At that point, his family moved to Orangeville.
[55] Mr. Richards was raised by his parents who are still united. His mother is 67 years of age and worked as a cleaner and in factories during her adult life. She was described by Mr. Richards as “friendly, outgoing and happy”.
[56] Mr. Richards’ father is 66 years of age. He is a retired truck driver. He was also described by Mr. Richards as outgoing and happy.
[57] Mr. Richards has a younger brother who is 42 years of age. He is not married, but he has two children. He is employed as a cement finisher. Mr. Richards said that he was never close to his brother and they have had no contact for the past 3 to 4 years.
[58] Based on this background, it would appear that Mr. Richards had a normal and happy upbringing. Despite this, he has amassed a significant criminal record escalating in violence in his 40’s.
Aboriginal Ancestry
[59] Mr. Richards is a Mi’Kmaq status Indian registered with the Bear River First Nation in Nova Scotia. His aboriginal ancestry comes from his mother. His mother attended a residential school. Although Mr. Richards did not, himself, attend a residential school, the impact is likely felt by him as well. Notwithstanding the impact and the difficulties presented by such an environment, it appears that Mr. Richards was raised in a stable environment by parents who were employed and remained married.
[60] Further, it would appear that Mr. Richards had little knowledge of his Aboriginal background and culture growing up. He learned about his background and culture while in custody in Penetanguishene. While there, he participated in smudging sessions and peace circles. At Maplehurst Correctional Complex, he has participated in Aboriginal Programming. While in prison on these offences, Mr. Richards has participated in the “In Search of Your Warrior Program”.
[61] In applying the Gladue methodology, I find that there are no unique or systematic factors that may have played a role in these offences. Further, given the seriousness of the offences, I find there are no alternative sanctions that are appropriate here. Lastly, these offences are of such a violent and serious nature that the sentence imposed should be similar to a sentence imposed on a non-aboriginal offender.[^19]
Education and Employment History
[62] Mr. Richards has been working since age 12. He graduated after having completed grade 12. Upon leaving high school, Mr. Richards took a one-year course in block laying at Northern College.
[63] At age 18, Mr. Richards was employed for 5 years with two companies in the construction business. He worked in various trades, including cement finishing.
[64] At age 25, Mr. Richards began working as a truck driver and was employed in that capacity for 15 years. He worked for five or six companies until 2006. Mr. Richards stopped working as a truck driver because he was incarcerated and because his license expired. After 2006, Mr. Richards said that he was not “particularly” employed, in part, because of his ongoing legal difficulties.
[65] This employment history demonstrates that Mr. Richards was employable and able to maintain a somewhat healthy existence.
Relationship History
[66] Mr. Richards has never been married. He has lived in three common-law relationships. One broke up because of an age difference (his partner was much older) and another broke up because of Mr. Richards’ involvement in fraudulent behavior and alcohol issues.
[67] Mr. Richards’ third common-law relationship was with Ms. Catherine Dambrauskas. Together they have one child: Alexis, who is 9 years of age. Until 2009, Mr. Richards saw Alexis frequently. The relationship between Mr. Richards and Ms. Dambrauskas ended because of conflict regarding his alcohol consumption and her “ex-partner”. Mr. Richards advised that the relationship ended amicably, but they were not particularly close after it did.
[68] There is nothing in his family background, education, employment or relationship history that may explain the factors that triggered his downward spiral into significant violence in 2009. For example, he appears to have had a happy upbringing. He got an education. He was employable and sustained employment, showing commitment and ability. His relationships appeared somewhat functional. However, there are some issues with alcohol.
Substance Abuse
[69] Mr. Richards said that he began using alcohol at age 12. Alcohol became a focus for Mr. Richards in his teens, but he asserted that it did not affect his work, education or relationships at the time. Alcohol appeared to have a greater impact during his adult life. He admitted to consuming up to 24 standard units of alcohol daily. Despite these troubles, Mr. Richards denies that he would become angry or aggressive when intoxicated.
[70] Mr. Richards stopped consuming alcohol for 12 years. This was because it was affecting his employment and his relationship with Ms. Dambrauskas. In 2008 he resumed consumption. The reason? He was living in a motel with neighbours who were alcoholic. He has since stopped and has stated that he will not return to alcohol use. Alcohol has played no role in these offences.
[71] Mr. Richards has completed a substance abuse program since being incarcerated. He has also participated in a program for community reintegration and basic healing. It has been recommended that he continue treatment for substance abuse.
The Criminal Record
[72] The entries on Mr. Richards’ criminal record prior to the offences committed in 2009 and described above may be summarized as follows:
| Date | Offence | Sentence |
|---|---|---|
| 2007 | Fraud Over $5,000; Fraud Under $5,000 (x3); and Fail to Comply with Probation. | 12 months in custody and 3 years’ probation. |
| 2007 | Theft Under $5,000; Fraud Under $5,000; Theft of Telecommunications; Fail to Comply with an Undertaking. | 2 months in custody (in addition to 3.5 months in presentence custody) and 18 months of probation. |
| 2004 | Fraud Under $5,000 (x5); False Pretenses (x2). | Suspended sentence (160 days in presentence custody noted) and 12 months’ probation. |
| 1999 | Theft Under $5,000. | 30 days in custody. |
| 1999 | Theft Under $5,000; Utter Forged Document (x3); Fail to Appear; Fail to Comply with Recognizance. | 4 months, 15 days in custody and 12 months’ probation. |
| 1998 | Fraud Under $5,000. | 4 month conditional sentence order. |
| 1989 | Robbery. | 9 months in custody. |
[73] Mr. Richards criminal record demonstrates his inability to comply with Court orders. Mr. Richards was on probation when the most serious of the offences were committed in 2009, giving rise to this application. It should be noted that Mr. Richards has committed frauds on his girlfriend (he made a fraudulent withdrawal from her bank account) and his father (he took a cheque from his father, made it out to himself for $800 and then cashed it). Lastly, it should be noted that some of these offences occurred when he was involved in a relationship, had a home and was employed.
[74] Mr. Richards has no respect for authority or his family and friends which is borne out both by his criminal conduct and his inability to comply with court orders. He appears to have been ungovernable and at risk to reoffend.
Psychiatric Diagnosis
[75] Both Dr. Klassen and Dr. McMaster conducted a thorough review of Mr. Richards’ history, including his criminality, family, etc. Their findings did not differ in any material way and both concluded that Mr. Richards suffers from the following:
| Diagnosis | Definition[^20] | Conclusion of Dr. Klassen[^21] | Conclusion of Dr. McMaster |
|---|---|---|---|
| Personality Disorder | Personality traits are characteristic ways of interacting with one’s environment. When personality traits are maladaptive and inflexible, and give rise to difficulties with affectivity, interpersonal relations, cognitive style , or impulse control then personality disorders are said to exist. | Mr. Richards has engaged in persistent offending behavior, has been deceitful, has not particularly planned for his future, has shown disregard for the safety of self or others (i.e., driving while impaired) and has presented as irresponsible. He has been diagnosed as suffering from a personality disorder NOS, with antisocial traits. | Dr. McMaster concludes that Mr. Richards suffers from personality disorder with antisocial traits. |
| Alcohol Abuse/ Dependence Disorder | Occurs when there is a maladaptive use of alcohol resulting in one or more of a failure to fulfill major role obligation due to alcohol use, a persistent use of alcohol despite knowing of social or personal problems flowing therefrom. | Mr. Richards has reported serious issues with alcohol. Alcohol has affected his relationships, work, accumulation of criminal convictions, etc. Mr. Richards meets the criteria for alcohol abuse disorder and may meet the criteria of alcohol dependence disorder as historically, he has been preoccupied with the acquisition of alcohol and loss of control over use. | Dr. McMaster suggests that Mr. Richards suffers from substance abuse disorder. |
| Malingering | The essential feature of malingering is the “intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives, including evading criminal prosecution or obtaining drugs”. Malingering is strongly suspected if there is any combination of: i. medico-legal context to the presentation; ii. discrepancy between the person’s claimed stress or disability and the objective findings; or iii. the presence of antisocial personality disorder. | Mr. Richards is likely malingering amnesia and perhaps psychotic symptoms regarding the circumstances of his last two criminal entries. He has reported that he did not sleep for nine days prior to committing the offences in July 2009. Dr. Klassen has concluded that this is physiologically impossible. Further, Mr. Richards suggests that he was in a “significantly abnormal state” when committing the offences in July 2009, but this is not consistent with the facts presented by the victim, nor his behavior afterwards. Further, the fact situation is similar between the offences committed in May and July, 2009. Despite that, there is no suggestion by Mr. Richards that he was experiencing any psychotic symptoms in May 2009. | |
| Paraphilias | Underlying problematic/deviant sexual preferences. They are defined as deviant or problematic either because they interfere with mutually consenting dyadic sexual behavior or because they involve sexual activity. An individual may be diagnosed as paraphilic when they engage in behavior that cannot reasonably be explained by other psychiatric diagnoses. | Dr. Klassen has been unable to determine any other motive to account for Mr. Richards’ seriously offending behavior. Accordingly, it is his opinion that it is “probable that he suffers from underlying sexual sadism, expressed first in the context of psychosocial deprivation”. | Dr. McMaster states: “there is a possibility that Mr. Richards suffers from a paraphilia such as coercive sexual disorder or sadism”. |
[76] Counsel for Mr. Richards appears to suggest that there is little to support that Mr. Richards suffers from a sexual deviation (i.e. a pattern of abnormal and dysfunctional arousal) that would significantly heighten his risk for sexual violence if present. Dr. Penney (who assisted Dr. McMaster with his report) said that there was insufficient evidence either from Mr. Richards or other collateral sources to support a diagnosis of a paraphilia.
[77] Counsel submits that the following factors do not support a diagnosis of paraphilia:
a. The absence of any history of sexual violence in Mr. Richards’ background;
b. The absence of any other violence;
c. The fact that sexual deviant behaviour will onset at sexual maturity and not at the age of 40 or older; and
d. There is no evidence of sadistic pornography in 2009: around the time of these offences.
[78] I agree with the submissions of Counsel for Mr. Richards that both Drs. Klassen and McMaster have come to their conclusions regarding paraphilia because they cannot determine or provide an explanation for Mr. Richards’ explosive acts of violence in 2009. Their inability to understand the reason these incidents happened is prompting their concern that perhaps Mr. Richards suffers from an undiagnosed sexual paraphilia. That, together with the extent of the violence, the fact that Mr. Richards grabbed Ms. Wirtz’ breasts at the commencement of the assault and his response to her reaction contributes to this opinion.
[79] Also contributing to their psychiatric opinion is that Mr. Richards was asked to participate in phallometric testing. He declined, which concerned the psychiatrists. They opined that Mr. Richards may be attempting to prevent disclosure of an undiagnosed sexual paraphilia. Counsel for Mr. Richards suggests that their concerns are unwarranted for the following reasons:
a. At the time he was interviewed by Drs. Klassen and McMaster, Mr. Richards had “already been cleared by the medical unit at Millhaven that he was not required to undergo a sex offender assessment or sex offender treatment program”.[^22]
b. Mr. Richards, since his incarceration, has willingly participated in supplementary assessments.[^23] This participation demonstrates that he is not attempting to conceal any underlying or psychological disorders.
c. He has shown remorse and a desire to gain some understanding of what happened. He accepts that he is in need of intervention and is willing to participate in any interventions put forth by Correctional Service Canada (“CSC”).[^24]
[80] While I accept that CSC has not concluded formal sex offending treatment is required, I am concerned that this conclusion was reached well before a full psychological assessment was conducted. The CSC conclusion was reached in 2012 well before Drs. Klassen and McMaster conducted their assessments. It does not appear that Dr. Bossin has been sent either report for his consideration.
[81] Despite the recommendations of both psychiatrists, Mr. Richards has refused to participate in phallometric testing to assist in the diagnosis regarding paraphilia. Although such a test may not be conclusive of any diagnosis, both psychiatrists have suggested it would be helpful.
[82] While it is not my role to medically diagnose Mr. Richards, I must consider this evidence to assess Mr. Richards’ risk of violent recidivism and whether there is a reasonable possibility that this risk could eventually be controlled in the community. The following risk assessments provided by the psychiatrists assist in this regard.
Risk Assessment
[83] Both Doctors Klassen and McMaster conducted various risk assessment tests. The results are as follows:
| Test | Dr. Klassen | Dr. McMaster |
|---|---|---|
| PCL-R | Dr. Klassen conducted a risk assessment using the Psychopathy Checklist-Revised ( “PCL-R”). This test has been described by Dr. Klassen as the “gold standard” for the measurement of psychopathy. There is a total score on a continuum from 0 to 40 with a score of 40 points representing the conceptualization of the proto-typical psychopath. Mr. Richards scored 19 out of a possible 40 points which places him in the 35th percentile. Based on this score, Dr. Klassen concluded as follows: A score of 35 … suggests difficulties with general and violent recidivism, and treatment responsive-ness, albeit this is not a score that should give rise to therapeutic nihilism. … the PCL-R suggests a moderately low risk. | Dr. McMaster concluded that Mr. Richards scored a 20 out of 40 which was a moderate PCL-R score. |
| VRAG | When Mr. Richards was assessed using the Violence Risk Appraisal Guide (the “VRAG”), he scored +1. This means that individuals with a similar score recidivated violently at a rate of 48% over 10 years’ opportunity in the community. | Dr. Richards scored +1 which puts Mr. Richards: “Among individuals of the standardization sample who were in the same risk category, 35% violently reoffended within 7 years of opportunity and 48% violently reoffended within 10 years of opportunity.” |
| HCR-20 | Mr. Richards’ risk was also assessed using the HCR-20 which is a “useful tool” regarding violent recidivism. Again, this test has a total score continuum of 0 to 40 points. Mr. Richards scored 20-22. Dr. Klassen reports that in a study of federal offenders who were released and followed-up for a period of approximately 7.5 years, individuals with a score that included 20 recidivated violently at a rate of approximately 30%. Those with a score of 21-30 recidivated violently at the rate of approximately 70% over the same interval. | Dr. McMaster scored Mr. Richards at 25 out of 40 in the context of his immediate, imminent release into the community absent any legal conditions. Dr. McMaster concluded: “Based on the HCR-20, my final risk judgment is that Mr. Richards presents as high risk of violent recidivism … A judgment of high risk suggests that there is an urgent need to develop a risk management plan for the individual.” |
| SORAG | Using the Sex Offender Risk Appraisal Guide (the “SORAG”) Mr. Richards scored +4. Such a score places him in the 45th percentile. This means that other individuals with the same score recidivated violently or sexually at a rate of 59% over 10 years’ opportunity in the community. The VRAG and the SORAG suggest a “moderate risk”. | Dr. McMaster scored Mr. Richards as +4 and in the 45th percentile. He, too, associated Mr. Richards with a recidivism rate of 59% over 10 years’ opportunity. |
| STATIC – 99R | The STATIC-99R was also used to assess sex offender or combined sexual and violent recidivism. Dr. Klassen scored Mr. Richards at 4. This places Mr. Richards in the 80th percentile which means that he presents approximately twice the risk of the average sex offender. Individuals with a score of 4 recidivated violently or sexually at a rate of approximately 40% over 10 years’ opportunity in the community. These results suggest a “moderately high risk”. | Dr. McMaster scored Mr. Richards as +4 meaning the “10 year violence rate (including sexual) is 40.8%”. |
[84] The psychiatrists concluded the following about Mr. Richards’ overall risk:
a. Dr. Klassen: “Given that this gentleman really only has one offense cluster, imminence would not appear to be particularly live, but given that his two, most serious, offenses took place within a very similar timeframe, frequency (e.g. repeat offending) and severity, would appear to be live. Sexual sadists will typically continue to offend, once they start, until apprehended.” And, “I do believe that this gentleman’s probability of re-offense…is likely consistent with substantial risk of reoffense.”
b. Dr. McMaster: “In summary, Mr. Richards appears to be a ‘high risk’ individual. Although the risk of violence is likely less than 50%, in the long term, if Mr. Richards were to be violent, there appears to be a substantial risk of this violence being serious.”
[85] The psychiatrists concluded the following about risk management of Mr. Richards:
a. Dr. Klassen: “In the absence of willingness on the part of this gentleman to better articulate the intrapsychic, and external, variables, giving rise to the offending behaviour, it’s difficult to know what to suggest, from a treatment perspective. As such, it is difficult to tailor a treatment program to meet his needs.”
b. Dr. McMaster: “I agree with Dr. Klassen that the underpinnings to Mr. Richards’ severe violence are not fully understood, and accordingly, it is not possible to determine if the above risk management strategies will translate to success in the community over the long term.” And “From a psychiatric perspective, there appears to be the possibility of eventual control of Mr. Richards’ risk in the community on an LTSO, but there is concern that this possibility is based on hope and optimism, as opposed to a clear understanding of Mr. Richards’ risk factors, and offence cycle.”
[86] Resort to the long-term offender regime is appropriate when there is evidence that an offender, such as Mr. Richards, can be meaningfully treated so that his risk to the public can be controlled at an acceptable level within a determinate period of time. A mere hope that treatment will be successful, or simple optimism that there is a reasonable possibility of eventual control of Mr. Richards’ risk in the community, is insufficient ground to warrant a determinate sentence.[^25]
[87] The evidence provided to the Court demonstrates that Mr. Richards’ risk of violent re-offending is moderate to high. In my view, there is no reasonable expectation that a lesser sentence than an indeterminate one will adequately protect the public. This is based on the following factors:
a. The attack in May 2009 was vicious and demonstrated the inability of Mr. Richards to control his behavior despite his victim’s compliance with his demands. The violence exacted on this victim was gratuitous and horrifying. He attempted to murder her.
b. Mr. Richards appears to have been fixated with the reports of his conduct following the May 2009 assault. He appears to have followed the media reports.
c. Despite his concern about being apprehended, he committed an equally violent and terrifying assault on yet another vulnerable victim in July 2009. He attempted to murder her.
d. Drs. Klassen and McMaster have concluded that Mr. Richards suffers from personality disorder with antisocial traits.
e. Drs. Klassen and McMaster have opined that Mr. Richards may suffer from a paraphilia, likely sexual sadism.
f. Mr. Richards appears to be conflicted. He lacks insight into the reasons for his violent offending in 2009. He has convictions for crimes of dishonesty: often affecting those he loves most (i.e. committing a fraud on his girlfriend at the time and on his father). His report of amnesia (due to lack of sleep, etc.) at the time of the offence is not credible.
g. Mr. Richards appears to have little support in the community. Although his parents continue to support him, he cannot reside with them upon his release because he defrauded them. His brother appears to want little to do with him as he did not wish to participate in the pre-sentence report. His relationship with his child’s mother is at an end.
h. While Dr. McMaster has opined that Mr. Richards is responding well to treatment while incarcerated, he does not have extensive support in the community that would leave him at an elevated risk to re-offend when released.
i. Mr. Richards has battled substance abuse for decades. Even after a lengthy abstinence from alcohol and at the risk of losing his steady employment and family relationship, he was not able to control it. That being said, alcohol does not appear to have been a factor in the 2009 offences.
j. Despite having participated in various programs while incarcerated, including “In Search of Your Warrior”, Dr. McMaster opined that Mr. Richards “appears to have minimal insight into his own emotional processes and functioning … A lack of insight into his emotional functioning will continue to place Mr. Richards at risk, to the extent that he is unable to gauge his emotions accurately, employ more adaptive coping strategies in the face of negative affect, and avoid escalating to the perpetration of violence to alleviate angry or dysphoric mood states”.
k. Further, Mr. Richards reported that his motivation for both offences in 2009 were financial in nature. He denied that there was any sexual motivation. However, both victims were compliant in providing Mr. Richards with any money they had available. Despite that, he continued to exact violence on them in a most gratuitous way. He himself explained that he is unsure why this happened.
l. Dr. Klassen has opined that Mr. Richards is at a substantial risk to reoffend.
m. Dr. McMaster concluded that Mr. Richards is high risk and that if he were to be violent in the future, it appears that there is a substantial risk that his violent re-offending would be serious.
n. Both Drs. Klassen and McMaster opined that they have insufficient information to establish an effective treatment or risk management plan. In essence, “the underpinnings to Mr. Richards’ severe violence are not fully understood, and accordingly, it is not possible to determine if the [above] risk management strategies will translate to success in the community over the long term”[^26].
o. Dr. McMaster testified that Mr. Richards was inconsistent in some of his responses during the assessment. He felt that Mr. Richards was not being completely forthright and therefore his concluded that his ability to be managed would be very difficult.
p. The only concrete hope to protect the public is “burnout” according to both psychiatrists. In other words, it is likely that Mr. Richards’ risk will decrease with older age at release. Both sexual and non-sexual violence is known to decrease with advanced age.
q. Any treatment program is based on hope and optimism. As Dr. McMaster so eloquently said: “… a hope that treatment will be successful or some optimism that an offender could be rehabilitated is not a sufficient basis to impose a determinate sentence. A court is not able to gamble on the safety of the community”. Dr. Klassen echoed this sentiment in an equally eloquent fashion during his viva voce evidence.
iii. The Applicability of an Indeterminate Sentence
[88] In conclusion, I find that Mr. Richards’ risk of re-offence is high. There is no reasonable possibility of eventual control of that risk in the community. It cannot be ignored that there are significant concerns because of the nature of the offences and the absence of an explanation. What exists here is a mere hope that treatment will be successful, or simple optimism that there is a reasonable possibility of eventual control of Mr. Richards’ risk in the community. Hope and optimism are insufficient grounds to warrant a determinate sentence alone or together with an long-term supervision order.
[89] Therefore, I designate Mr. Richards a dangerous offender and I sentence him to indeterminate detention.
Kelly J.
Released: June 26, 2014
COURT FILE NO.: CR/11/500000/200000
DATE: 20140626
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Robert Richards
RULING Re:
Dangerous Offender Designation and Sentencing
Kelly J.
Released: June 26, 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 ss. 753(1)(a)(i) and (ii) of the Criminal Code. [^2]: M.D., FRCP (C). Assistant Professor in the Departments of Psychiatry and Medicine at the University of Toronto. [^3]: M.D., FRCP (C), Complex Mental Illness Program (Centre for Addiction and Mental Health), Assistant Professor (Department of Psychiatry, University of Toronto) and Certified Subspecialist in Forensic Psychiatry (Royal College of Physicians and Surgeons of Canada). [^4]: Mr. Richards was charged with attempt murder contrary to s. 239 of the Criminal Code. [^5]: R. v. Lyons, [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), 115 Nfld. & P.E.I.R. 197 [^8]: See: R. v. Neve, 1999 ABCA 206 at para. 113 [^9]: See: R. v. George, [1998] B.C.J. No. 1505 (B.C.C.A.) at para. 23 and R. v. Bunn, 2012 SKQB 397, [2012] S.J. No. 637 (Sask. Q.B.) [^10]: See: R.F.L., 2011 ONSC 1900, 2011 O.J. No. 3230 (S.C.J.) at para. 350 [^11]: Those searches may be summarized as follows: May 30, 2009 = www.ctv.ca/home; May 30, 2009 = www.ctv.ca used the words “woman stabbed”; May 30, 2009 = www.citytv.com/toronto.news/aspx; May 30, 2009 = Bing internet search for “ctv Toronto”; May 30, 2009 = www.ctv.ca/canada; May 30, 2009 = www.ctv.ca searched and typed “woman stabbed at flower shop”; May 30, 2009 = www.torontosun.com/news; May 31, 2009 = user read an article posted by “Toronto.ctv.ca” with the headline “woman stabbed at west-end flower shop”; May 31, 2009 = www.google.ca user typed the search words “woman stabbed at flower shop”; June 2, 2009 = www.citynews.ca and viewed a news article titled “Woman Stabbed at Flower Shop”; June 5, 2009 = www.google.ca user typed the search words “woman stabbed at flower shop”; June 5, 2009 = www.ctv.ca user visited their online article titled “Woman stabbed in the face at west end flower shop”; June 12, 2009 = “Bing” search engine “achannel news”; June 12, 2009 = www.atv.ca; June 12, 2009 = “Bing” search “city news Toronto”; June 12, 2009 = www.citynews.ca; June 12, 2009 = www.citynews.ca the user visited their online article titled “Police Hunt for Suspect, Victim’s Car in Attempted Murder”. [^12]: [2004], O.J. No. 2151 (S.C.J.), at paras. 55-57 [^13]: This paragraph is taken from the submissions of Crown Counsel at page 34, para. 115. [^14]: See: R. v. Szostak, 2014 ONCA 15 [^15]: See: R. v. F.E.D., 2007 ONCA 246, [2007] O.J. No. 1278 (C.A.) at paras. 44-45; para. 50, leave to appeal to S.C.C. refused, [2007] S.C.C.A. No. 56 and R. v. McCallum, [2005] O.J. No. 1178 (C.A.) at para. 47; leave to appeal to the S.C.C. refused, [2006] S.C.C.A. No. 145 [^16]: 2010 ONCA 291, [2010] O.J. No. 1577 (C.A.) [^17]: 2010 ONCA 291, [2010] O.J. No. 1577 (C.A) at paras. 80-81 [^18]: See: R. v. Solano, 2014 ONCA 185, [2014] O.J. No. 1118 (C.A.) [^19]: See: R. v. R.M. 2011 ONCA 132 [^20]: These definitions are summarized from the report of Dr. Klassen. [^21]: These conclusions are summarized from the report of Dr. Klassen. [^22]: When Mr. Richards attended at Millhaven Assessment Unit to commence his current sentence, he was referred to a Specialized Sex Offender Assessment. On February 29, 2012, the Psychological Assessment Report concluded that: after a careful inspection of the file, after reviewing the details of the index offence and in consulting with the parole officer, it was decided that Mr. Richards would not be subjected to a specialized sex offender assessment. Accordingly, no formal sex offending treatment is required. The report of the Millhaven Assessment Unit was “reviewed” by Chief Psychologist, Dr. Eldon Bossin. It appears he “signed off” on it. [^23]: For example, he agreed to voluntarily participate in the CoMHISS which is a psychological assessment. [^24]: During his participation in the “In Search of Your Warrior” program, Mr. Richards (again) indicated that he wanted to gain a better understanding of what led him to commit these offences. [^25]: See: R. v. Johnson, 2003 SCC 46 and R. v. Solano, 2014 ONCA 185, [2014] O.J. No. 1118 [^26]: See: Report of Dr. McMaster, page 51