DATE: 20140626

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

BRYAN HOOD

Robert Fried, for the Crown / Applicant

Monte MacGregor, for Bryan Hood / Respondent

HEARD: March 20, April 11 and May 9, 2014

SPIES J.

REASONS FOR SENTENCE ON DANGEROUS OFFENDER APPLICATION

Overview

[1] On November 6, 2012, the Defendant Bryan Hood was convicted by a jury of aggravated assault contrary to s. 268 of the Criminal Code. Pursuant to s. 754 of the Code, an Application was made on behalf of the Attorney General of Ontario (“AG”) for an order pursuant to the provisions of s. 753(1)(a) of the Criminal Code declaring Mr. Hood to be a dangerous offender and imposing a definite sentence of incarceration followed by a period of long term supervision, in lieu of any sentence that might otherwise be imposed for the conviction.

[2] On January 24, 2013, I ordered on consent that Dr. Mark Pearce conduct a psychiatric assessment of Mr. Hood pursuant to s. 752.1 of the Criminal Code. To that end Dr. Pearce met with Mr. Hood on May 9, 2013 and he provided a report to the court dated June 10, 2013.

[3] These Applications always take some time to be heard but in this case the delay was considerably longer than usual; it has been 19 months since Mr. Hood was convicted. Mr. Hood quite reasonably wanted an opportunity to make representations to the AG as to whether or not the AG should consent to the bringing of the Application and Mr. Hood’s trial counsel became unavailable partway through the proceeding requiring Mr. MacGregor to take over as counsel for Mr. Hood. Although I am aware of the admonishment to the parties made by Code J. in R. v. P.G., 2013 ONSC 589, [2013] O.J. No. 490; a case where the delay between conviction and sentence was 11 months, in this case the longer delay has occurred for these and other reasons that are not the fault of the court or the parties and has occurred despite the reasonableness and cooperation of counsel throughout the proceeding for which I am grateful.

The Issues

[4] Mr. Fried relies on the expert report of Dr. Pearce and the evidence filed on this Application in support of his position that Mr. Hood should be designated as a dangerous offender and sentenced to three years’ incarceration followed by a Long Term Supervision Order (“LTSO”) of ten years.

[5] Mr. MacGregor submitted that Mr. Hood does not qualify as a dangerous offender and he argued that at most, given the nature of the predicate offence, Mr. Hood be sentenced to six months to a year followed by probation which could address some of the concerns raised by Dr. Pearce. In the alternative Mr. MacGregor submitted that Mr. Hood should be designated as a long term offender.

[6] In summary, for the purposes of this Application, the Crown must prove beyond a reasonable doubt that:

(a) the predicate offence is a serious personal injury offence as listed in s. 752;

(b) the offender constitutes a threat to the life, safety or physical or mental well-being of other persons because of:

(i) (1) A pattern of repetitive behaviour showing (2) failure to restrain the behaviour, and (3) likelihood of causing death or injury or inflicting severe psychological damage; or

(ii) (1) A pattern of persistent aggressive behaviour showing (2) a substantial degree of indifference.

[7] Aggravated assault is the predicate offence for which the Crown seeks this order and there is no dispute that it is a “serious personal injury” offence as described in s. 752(a) of the Criminal Code. The issue then is whether the required “pattern” has been proven and if I must designate Mr. Hood as a dangerous offender, what is the appropriate sentence. If Mr. Hood is not found to be a dangerous offender, then I must consider the long term offender provisions.

The Relevant Evidence Heard at Trial and Findings of Fact Re Predicate Offence

[8] The assault occurred on June 11, 2010 in the holding cells at the Scarborough Provincial Courthouse. The jury found Mr. Hood guilty of aggravated assault: assaulting a fellow inmate, Mr. Tutton. They could have reached their verdict in one of two ways: 1) that Mr. Hood acted in self defence but that he did not act lawfully; if, for example, the jury concluded that excessive force was used; or 2) that Mr. Hood did not act in self defence. I must, therefore, make a finding of fact as this issue is relevant to sentencing.

[9] A video of the fight was entered as an exhibit which, given the passage of time, I have reviewed again. For the reasons that follow, I have come to the conclusion that Mr. Hood did not act in lawful self defence.

[10] There is conflicting evidence between Mr. Hood and Mr. Tutton as to why the fight started. Mr. Hood gave evidence about an earlier conversation with Mr. Tutton and that Mr. Tutton had agreed to give him his sandwich. Mr. Tutton did not recall this. In any event once Mr. Hood saw that Mr. Tutton had his sandwich he approached him and said to Mr. Tutton that he thought he was going to give him his sandwich. Mr. Hood testified that Mr. Tutton gave him a very dirty look and he; Mr. Hood, walked away. I do not believe Mr. Tutton was asked about this but on the video there does appear to be some interaction between the two men and you then see Mr. Hood walk away from Mr. Tutton and he walks around the cell area for a few seconds while Mr. Tutton continues to eat and drink.

[11] Mr. Hood testified that he felt “a little disrespected” as a result of the way Mr. Tutton looked at him and the fact that Mr. Tutton didn't even answer him or say anything. He said he was not upset or angry but wanted to know why and so he went up to Mr. Tutton again and asked what happened. According to Mr. Hood at this point Mr. Tutton looked at him and said "Fuck you nigger, I'll kill you." He said that Mr. Tutton said this in a low, grave and monotone voice. Mr. Hood testified that he really thought Mr. Tutton was going to kill him and he didn't know what to expect. He did not want to turn his back on Mr. Tutton. Mr. Hood admitted that he then took the first swing and the fight was on.

[12] Mr. Tutton testified that he could not remember too much about the conversation or what had happened but that it was all over a cheese sandwich. He was permitted to refresh his memory from a statement that he gave to police at the hospital, shortly after the incident. He then testified that Mr. Hood said something to the effect "Give me the sandwich" and he said "No" and then the fight happened. When it was put to Mr. Tutton in cross-examination that he said to Mr. Hood what Mr. Hood alleges, Mr. Tutton stated in surprise: "Whoa, I never said anything like that!"

[13] Mr. Hood is six feet tall and weighs 185 pounds which is the same as what he weighed at the time of the incident. There is no evidence as to Mr. Tutton's actual height and weight at the time but Mr. Tutton is clearly shown on video surveillance to be a much smaller and weaker man than Mr. Hood.

[14] I find it difficult to believe given Mr. Tutton’s background; he was in jail for a mischief charge involving his parents, and given that he was clearly the smaller man, that he would have made the threat Mr. Hood alleges. He had no history of violence which Mr. Hood knew. Furthermore, having observed the video of the event again closely, all that can be observed is that Mr. Tutton raises his head when Mr. Hood comes back to speak to him. There is absolutely no movement by Mr. Tutton otherwise; no sign of any threatening body language. Mr. MacGregor submitted that there was an underlying volatile nature to the complainant because he was not on medication which could drive Mr. Hood’s perspective on this. I have no recollection of such evidence but in any event there is no sign of any volatile behaviour on the part of Mr. Tutton. On this issue I prefer Mr. Tutton’s version of events.

[15] In any event, whatever Mr. Tutton may have said to Mr. Hood he clearly made no physical threat as Mr. Hood agreed that he took the first swing, which is obvious on the video, and that when he did so Mr. Tutton had a cheese sandwich in one hand and a drink in the other. Mr. Hood’s evidence that he has seen many times before, people throwing water in your face so you can't see, in my view was not a reason to go on the offensive. I also do not believe that Mr. Hood was concerned about Mr. Tutton having a weapon. If he was he would not have gone back to Mr. Tutton to ask for the sandwich in the first place. Mr. Hood admitted that he could have walked away but said because he was in a jail cell, he could not walk away that far. In any event, if he was worried about turning his back on Mr. Tutton he could simply have backed away.

[16] Furthermore, I accept the evidence of Officer Thomas, which is corroborated by the video, that as the fight progressed Mr. Tutton was backing up and in a more defensive stance and trying to get away from Mr. Hood. In fact when Mr. Tutton was trying to hide behind the column, Mr. Hood came around the column and continued to pummel him.

[17] The fight lasted approximately one minute. Mr. Hood would not agree that as the fight progressed he knew Mr. Tutton didn't have a weapon. Mr. Hood also would not agree that he was winning the fight and said that he wouldn't know that until it was over. He did not agree that he was the aggressor and that Mr. Tutton was backing up throughout the fight. He agreed however, that at one point Mr. Tutton was backing away. It is clear from the video that Mr. Hood was winning the fight and that he was the aggressor. Although initially Mr. Tutton tried to fight back, after his T-shirt came off early in the fight he was trying to get away from Mr. Hood, without success until Mr. Hood is pulled back by another inmate and Mr. Tutton is pulled out of the cell by an officer. Mr. Hood’s evidence is clearly contradicted by this evidence.

[18] I also do not accept Mr. Hood’s evidence that he felt distraught at the end of the fight. He can be observed doing fist bumps with other inmates and smiling while he cleans up-clearly he was happy about what he had done to Mr. Tutton at the time.

[19] Pictures of Mr. Tutton that were taken after the incident show the injuries he suffered during the altercation and in particular the ones to the front of his face and the back of his head. At one point he was thrust backwards and hit a concrete bench resulting in his head hitting the brick wall which caused a "very audible" thud heard by Officer Thomas and a resulting small circle of blood on the wall that you can see in the video. Officer Thomas attended to Mr. Tutton after the incident and testified that Mr. Tutton was quite agitated and very confused and in a lot of pain. The second video shows blood that was dripping onto the floor from Mr. Tutton after he was taken to the search room. Furthermore, Mr. Tutton testified that he was taken to the hospital and there he received some stitches for large gashes to his face.

[20] At the end of his evidence in chief Mr. Hood made a lengthy statement to the jury. In that statement he said that he wanted to let the jury know why he hit Mr. Tutton. He said that it was not right what he did but he did it because Mr. Tutton called him a nigger and that he "lost control". In re-examination Mr. Hood testified that his actions were involuntary and that it "just happened". Whatever Mr. Tutton may have said to him, I do accept Mr. Hood’s evidence that he lost control. However, whatever Mr. Tutton may have said that may have insulted Mr. Hood, it was not a reason for him to strike Mr. Tutton.

[21] For these reasons I find that the Crown has proven beyond a reasonable doubt that Mr. Hood did not honestly and reasonably believe, in the circumstances as he knew them to be, that he was about to be unlawfully assaulted by Mr. Tutton or that Mr. Tutton would kill or seriously injure him. He did not act lawfully in self defence. I find the Crown has proven beyond a reasonable doubt that no reasonable person would believe this even if Mr. Tutton said what he is alleged to have said to Mr. Hood.

The Evidence at the Dangerous Offender Hearing

[22] The evidence at the hearing consisted of two briefs of documents filed on consent containing Mr. Hood’s lengthy criminal record, information concerning the various convictions, letters from various probation officers, documents as to how Mr. Hood has been classified in the Provincial Jails where he has been held in custody, information about programs taken by Mr. Hood while in custody and Misconduct Reports related to incidents occurring between May 2002 to May 2011.

[23] The report prepared by Dr. Pearce was also filed on consent and he testified at the hearing. Dr. Pearce was qualified as an expert witness in the field of forensic psychiatry including but not limited to risk assessment. His excellent qualifications were not challenged by Mr. MacGregor. Dr. Pearce has testified in dangerous offender and long term offender proceedings approximately two dozen times before. In addition I heard evidence from Sherri Rousell, the Area Director of the Toronto East Parole Office. She provided additional information after she testified following up on issues raised during her testimony which was filed on consent. Finally I received a brief of reference letters written in support of Mr. Hood and copies of certificates documenting programs he has completed while incarcerated.

[24] Since Dr. Pearce reviewed and commented on Mr. Hood’s personal and criminal background and conduct while incarcerated, I will review that evidence together.

Mr. Hood’s Childhood and Developmental History

[25] At the time of the assessment by Dr. Pearce in June 2013, Mr. Hood was 30 years old. He had been incarcerated since February 20, 2009 for other offences. Prior to his incarceration, Mr. Hood resided with his sister, brother and mother in Markham.

[26] Mr. Hood was born in Scarborough, Ontario and was raised primarily by his biological mother in the Markham area. He is the youngest in a sib line of four; all of his siblings are half-siblings. His relationship with his mother was said to be “good”. They enjoy weekly telephone contact and she visits on occasion. Mr. Hood told Dr. Pearce that he wished he had heeded her advice and he expressed regret about “the choices I’ve made, I definitely regret them.”

[27] Mr. Hood had little contact with his father throughout his formative years. He stated, “I’ve only seen him five or six times growing up.” Over the past several years they have rarely had contact. When asked whether his father’s absence affected him, Mr. Hood replied, “Definitely. I think that was part of why I was doing the wrong things. I knew they were wrong, maybe I wanted attention”.

[28] Mr. Hood described his childhood as “good, other than my father not being around”. He was raised “in a good neighbourhood” and he had “little to complain about”. He was not subject to physical or sexual abuse. When asked if he wished to change any aspect of his character, he told Dr. Pearce that he wanted to change his anger; short temper, deal with his drinking problem which he believes leads to marijuana use and aggressive behaviour and stop “listening to the wrong crowd.” According to Mr. Hood he was not part of a gang and he denied weapons use or carriage.

[29] Mr. Hood told Dr. Pearce that his future plans are to get a job and pursue a trade; he may resume his studies as an electrician or perhaps pursue certification as an ironworker. He would like to continue writing poetry and books in his spare time. He would also like to become involved as a volunteer with “Redemption Services”, a community-based organization that focuses on reducing recidivism.

Educational History

[30] Mr. Hood initially completed only Grade 10. He did not matriculate high school alongside his peers as he was incarcerated. However, while incarcerated Mr. Hood resumed his studies and intentionally pursued and obtained his Ontario Secondary School Diploma (OSSD) in May 2013, as opposed to settling for his GED. Mr. Hood has also completed one University-level philosophy course, where he obtained an A and a strong reference from the professor. Dr. Pearce concluded that cognitively, Mr. Hood is at least of average intellectual abilities.

Occupational History

[31] When out of custody, Mr. Hood has largely maintained gainful employment. However, his employment has not been consistent because of his repeated incarceration, substance misuse and/or his propensity towards anger. Mr. Hood has primarily been employed as a telemarketer, customer service representative, salesperson and a labourer. He has also helped his mother with her cleaning business. Mr. Hood was employed full-time as a salesperson with Ontario Energy. He has been supported by general welfare assistance on three or four occasions, typically for brief periods of time, namely up to three months. He has not earned substantial income from the proceeds of crime although he admitted to selling drugs (marijuana or cocaine) for up to several weeks at a time.

Relationship History

[32] Mr. Hood is single with two children, the product of two different relationships. At the age of 22 he had a son from the first woman; an accidental pregnancy. His son who is now nine years old, was ultimately made a Crown ward and then adopted.

[33] At the age of 24, Mr. Hood began dating Carmeka May. They dated for three to four years. Ms. May accidentally became pregnant after they had been together for approximately six months and a daughter was born in September 2006.

Mr. Hood’s Criminal Record

[34] Dr. Pearce reviewed Mr. Hood’s lengthy criminal record with him. Mr. Hood’s criminal record reflects 36 convictions over a period of 12 years beginning in 1997 as a young offender. The only appreciable gap is between August 2005 and June 2008. There are ten convictions for violent offences on separate dates and complainants. The other convictions are for property offences, breaches of court orders or probation, as well as mischief and drug-related offences. He has been sentenced to jail 12 times. For the purpose of this Application the convictions for crimes of violence are particularly important. They can be summarized (in chronological order by date of offence (where known)) as follows.

[35] On January 26, 2001 Mr. Hood was convicted as a youth of, among other things, two unrelated counts of assault; one of them with a weapon, break and enter and weapons dangerous. He was given two months in open custody and two years of probation. Mr. Hood told Dr. Pearce that he had been “beat up” and “didn’t want to take it no more” and so he entered the complainant’s home with a steak knife. He then threatened this individual and instructed him to “leave me alone”. He denied physically harming the complainant. Mr. Hood admitted he was “very drunk” at the time. With respect to the assault charge, Mr. Hood told Dr. Pearce that he fought physically with his girlfriend when she refused to leave his home. Eventually Mr. Hood slapped her in the face, out of anger and frustration. He told Dr. Pearce: “It wasn’t a hard slap, it was more like a tap on her face. Well, a little more than a tap.” Alcohol or drugs was not a factor in this incident.

[36] On April 5, 2002 Mr. Hood was convicted as an adult of robbery with violence and other offences. He told Dr. Pearce that he provided a cashier with a note threatening violence. He was not in possession of a weapon at the time and was not aggressive with anyone. Mr. Hood said that he was intoxicated and had also smoked marijuana. He served 111 days of pre-sentence custody and was handed a five month custodial disposition.

[37] On March 17, 2004 Mr. Hood was convicted of assault and failing to comply with probation order for an offence that took place on August 20, 2003. According to the Ministry summary, Mr. Hood was at a family barbeque when the complainant began to disrespect Mr. Hood’s mother. Mr. Hood punched him once and knocked him unconscious for a few minutes. Mr. Hood admitted to Dr. Pearce that he was intoxicated and said that he “basically lost it”. He did not believe the complainant was seriously injured but according to the summary he required stitches. Mr. Hood served one month of pre-sentence custody and was handed a 90 day custodial sentence and probation for two years.

[38] On March 31, 2005 Mr. Hood pled guilty and was convicted for an assault that took place on October 4, 2004. The transcript of the guilty plea proceedings states that while loitering on a sidewalk with other males near a nightclub, Mr. Hood was impeding the complainant from passing him. As she attempted to do so, he grabbed her “below the knee in a hugging motion” and picked her up and placed her against a wall. He spread her legs open and wrapped them around his torso and “began to thrust forward”. Mr. Hood’s counsel indicated that alcohol was a factor in the offence. He served two months of pre-sentence custody and was handed a one day custodial sentence and was placed on probation for 18 months.

[39] On October 25, 2005 Mr. Hood was convicted of assault cause bodily harm stemming from an incident on July 8, 2005. Mr. Hood told Dr. Pearce that he was approached at a park by the complainant who wished to purchase drugs from him. When Mr. Hood indicated he could not provide drugs the complainant grabbed Mr. Hood’s shirt and Mr. Hood then punched him in the face. Mr. Hood said that he was intoxicated at the time and believes the complainant suffered a “broken cheekbone or something” but when he told Dr. Pearce this it is not clear if he was still talking about this offence. Mr. Hood served two and one half months of pre-sentence custody and was handed a four month custodial disposition and probation for 12 months.

[40] On June 17, 2008, Mr. Hood approached a man riding his bicycle and stabbed him in the neck with a knife. The complainant sustained a life threatening stab wound to his neck; a lacerated trachea. On February 28, 2011, Mr. Hood pled guilty to aggravated assault and was sentenced to five years in the penitentiary less two years credit for time served by Archibald J. Only when prompted by the court did he state that he “definitely” wanted to apologize to the complainant in particular.

[41] Mr. Hood informed Dr. Pearce that with respect to this incident he was initially charged with attempt murder. At the time he had “gotten back into selling drugs” and he said this incident involved an altercation with another drug dealer “who didn’t want me on his turf”. According to Mr. Hood, the complainant had historically attacked him with a screwdriver; “I thought it would help keep him away from me and that I wouldn’t have to go through that situation again, being stabbed with a screwdriver”. Thus he stabbed the complainant in the neck with a knife he had on his person; he was carrying a steak knife for protection as he was selling drugs. Mr. Hood told Dr. Pearce that he impulsively attacked the complainant and that he had not pre-planned the assault. He denied wanting to kill the complainant and said he only wanted to scare and deter him from bothering or trying to kill him. Mr. Hood added that he was intoxicated at the time of the incident.

[42] On February 18, 2009 Mr. Hood attacked his former girlfriend in her home. The complainant sustained bruising to her brain tissue, as well as lacerations and bruises about her body. On December 14, 2010, Mr. Hood pled guilty to assault with a weapon, assault, and forcible confinement with respect to this incident. He was credited for nine months of pre-trial custody (18 months on a 2:1) and Speyer J. suspended the passing of a further sentence and placed Mr. Hood on probation for three years.

[43] At that time Mr. Hood was involved in an “on-again/off-again” relationship with Ms. May and he stayed at her home on occasion to assist in caring for his two year old child as well as Ms. May’s seven year old daughter. In an effort to get Mr. Hood to leave, Ms. May telephoned Mr. Hood’s mother, at which juncture Mr. Hood punched her in the head, knocking her down. He then punched and kicked her about the head and body and then punched her again in the bathroom, which she had entered in an attempt to escape from Mr. Hood. Mr. Hood then produced a folding knife and waved it at Ms. May. Mr. Hood admitted that he was in possession of a fold-out knife, although he could not recall why he had such a weapon on his person. He believed he procured it from Ms. May’s residence, as it was her knife. He denied that he purposefully attempted to use the weapon in a menacing fashion although he added, “I guess you could say I was threatening her with it”. In Dr. Pearce’s opinion, based on what Mr. Hood told him, he thinks that Mr. Hood minimized it but he did take responsibility for it.

[44] Related to this assault, on December 17, 2010, Mr. Hood was convicted of attempting to obstruct justice and disobeying a court order. He had been calling Ms. May telling her that if she kept going to court he would get the police to come after her.

[45] Mr. Hood was involved in another inmate assault on August 14, 2010 at the Don Jail. He had become upset over the complainant’s use of a telephone, approached him and struck him the face a number of times before correction officers intervened. According to the sentencing reasons a couple of blows were struck but there may have been more had the guards not intervened. The complainant suffered a broken tooth, a cut under the eyes that required stitches and some swelling.

[46] Mr. Hood confirmed to Dr. Pearce that he and the complainant argued over the telephone and said that he was punched in the face first and that “At that point, the fight was on… Four of his friends rushed me so I just had to do what I had to do fast. I was scared that these guys were going to kill me.” Mr. Hood believed that the complainant sustained “more serious injuries” than the complainant of the predicate offence; “I think I broke a cheekbone or a broken orbital bone”.

[47] On February 21, 2012, Mr. Hood pled not guilty and was convicted of assault cause bodily harm. He was handed a 15-month custodial disposition and a 10-year weapons prohibition order was imposed. Justice Finnested stated that she would have imposed a longer sentence save for the fact it would be consecutive to the three year remnant of the sentence Mr. Hood was serving for his assault in June 2008. Finnested J. stated in her reasons that she believed that Mr. Hood was a “dangerous man” although she was puzzled by why there had been not much violence until 2005 and then by 2010 an “explosion of violence” culminating in a five year sentence.

[48] Mr. Hood discussed his conviction for assaulting Mr. Tutton in June 2011 with Dr. Pearce. On the day of the incident, Mr. Hood was frustrated “with my life. I was in jail; I didn’t get to see my kids”. He was in custody at that time pertaining to his assault on Ms. May and also in relation to an attempt murder charge with respect to the stabbing of the complainant on a bicycle. He told Dr. Pearce: “…I wish I never did it but at the time, it seemed like the right thing to do”. When asked why he was convicted of the offence, Mr. Hood stated: “I don’t know if they didn’t believe me that he said what he said, or if what I did was just not justifiable”. He ultimately stated, “You know, my actions weren’t voluntary. It just happened”. Mr. Hood was unsure why he was charged criminally whereas Mr. Tutton was not.

[49] Dr. Pearce thinks that Mr. Hood generally regrets having assaulted Mr. Tutton but a lot of that regret is about the inconvenience it has been for him as opposed to empathy for the complainant. However, he does appear genuine to Dr. Pearce when he says he will try to change his behaviour and respond differently in the future. Dr. Pearce doesn’t care which reason Mr. Hood relies on. He can either not re-offend because he feels badly for someone else or he can not do it because he doesn’t want to be punished anymore. Either one is acceptable. I will come back to this.

[50] I asked Dr. Pearce about page 26 of his report where he quotes Mr. Hood as saying “he may be labelled a dangerous offender, ‘all because of a couple of fistfights’”. Dr. Pearce said this was important in terms of a target for treatment intervention and education but did not mean much in terms of Mr. Hood’s risk of re-offence. He said that this was obviously a fairly significant or extreme minimization.

Mr. Hood’s Conduct While Incarcerated

[51] Although Mr. Hood was sentenced to a period of federal incarceration by Archibald J. on his convictions of February 28, 2011, he has remained in provincial custody while waiting for sentencing with respect to the predicate offence. He has spent most of his time in custody at the Toronto East Detention Centre (“TEDC”).

[52] A May 22, 2001 LSI-OR classified Mr. Hood as having “very high” risk/needs. A “very long youth record” was noted as was a condition to participate in anger management treatment programming. A May 12, 2004 LSI-OR classified Mr. Hood as having very high risk/needs. Anger management therapy was suggested albeit Mr. Hood did not feel this was indicated. An undated LSI-OR, seemingly from late 2005, classified Mr. Hood as a medium-secure inmate. When various programming (anger management therapy, educational upgrading, cognitive skills and substance abuse programming) was suggested to him, Mr. Hood “did not want to participate in any programs” although he indicated he would be attending for “addiction counselling” as part of his probation order. A similar LSI-OR (this one dated December 5, 2005) classified Mr. Hood as having high risk/needs.

[53] In the fall of 2006, Mr. Hood was felt to be a very high risk for re-offence and “unsuitable for community supervision”. An occurrence report dated March 20, 2009 indicated that Mr. Hood had expressed violent ideation while in custody. It is alleged that Mr. Hood had also written a letter that reportedly “makes reference to violence against law enforcement (cops)”.

[54] The Institutional records for Mr. Hood record that he has been involved in committing or threatening to assault another inmate on many occasions; seven in the period from May 2002 to April 2009 and nine occasions in the two year period between September 8, 2009 and September 13, 2011, including the two offences he was convicted of. A February 8, 2011 entry indicates that he required intensive supervision given a “pattern of serious, seemingly unprovoked violence against [a] variety of complainants including domestic [ones]”. It appears that Mr. Hood was most often placed within an institution’s general population. This was confirmed by Mr. Hood to Dr. Pearce when he told him that he was involved in “quite a few fights” when first incarcerated in 2009 although Mr. Hood denied muscling and bullying.

[55] That, however, is not true. This is exactly what Mr. Hood did in the case of Mr. Tutton and there are his Institutional records that record other serious incidents that did not result in criminal charges. For example, in October 2009 it was alleged that Mr. Hood placed an inmate in a chokehold and choked him unconscious. He was found guilty of the misconduct. In March 2010 Mr. Hood pled guilty and admitted fighting and being the aggressor. As late as April and May 2011, after Mr. Hood was sentenced to five years for stabbing the man, he was convicted twice of assault. The assault in April was witnessed by staff. The assault in May was similar to the predicate offence in that Mr. Hood stated that he felt threatened by the inmate walking towards him so he threw a swing at him.

[56] Since June 2011, Mr. Hood has been in the general population and he has had no further misconducts for altercations with other inmates. This is a significant factor in Dr. Pearce’s view.

Mr. Hood’s Conduct While on Probation

[57] Various probation officers express the opinion in Mr. Hood’s probation and parole records between 2003 and 2007, that he is not a good candidate for probation given his ongoing conflict with the law. Mr. Hood acknowledged to Dr. Pearce that he has struggled while on probation. He has typically “picked up new charges” which often “stemmed from me being drunk and not paying attention to reason”. He denied that he had trouble reporting as required.

[58] An April 7, 2013 closing summary indicates that Mr. Hood had been “in and out of custody” during the probationary period. The assessing probation officer concluded that he was “not a good candidate for probation in the future based on…ongoing conflict with the law and questionable reporting habits”.

[59] Based on the institutional records between May 2002 and May 2011, Mr. Hood has either admitted guilt or been found guilty of misconduct for a physical altercation on 13 occasions. In many of those he is noted as being the aggressor. One of those incidents on April 6, 2006 was one where Mr. Hood and another inmate were observed by staff to be stabbing and hitting each other with broken broomsticks. Mr. Hood pled not guilty but was found guilty in this case. In a few of these cases Mr. Hood argued that he was defending himself. This defence worked on one occasion but not on two others.

Anger Management and Substance Abuse History

[60] When asked by Dr. Pearce what he requires in order to succeed, Mr. Hood opined that he must avoid alcohol and drugs. He would like to obtain gainful employment “to occupy my time so that I don’t fall back into the same patterns”. He aspired to “give back to the community with volunteer work, I think that’ll work wonders and…give me more of an incentive to stay on track”. He informed that he would “absolutely” abide by conditions placed upon him.

[61] When asked whether he is at risk of re-offending, Mr. Hood replied, “Right now, no. I’ve been in jail too long, I’ve learned too much, there’s been so many changes in me. I’ve found something that I love to do and that’s going to make all the difference. Mr. Hood agreed with Dr. Pearce that in the past he was quick to anger. He stated, “I feel like I’m a totally changed man now though. Things that pissed me off before no longer piss me off now”.

[62] Although Mr. Hood’s probation and parole records record that in 2004 and 2005 Mr. Hood was not agreeable to anger management counselling, fortunately he seems to have come around. Mr. Hood completed two different anger management treatment programs; with his probation and parole officers in 2010 and Brighter Dayz in 2011, “Battlefield of the Mind” in 2012, and a cognitive skills workshop in 2012 (with Brighter Dayz). Mr. Hood told Dr. Pearce that he found these programs to be “most definitely” beneficial. He was agreeable to re-participating in such programming if suggested.

[63] Mr. Hood admitted to Dr. Pearce that he missed work as a result of alcohol use and family members expressed concern about his level of consumption. He has committed criminal offences while intoxicated. Surrounding the time of his 2009 arrest, Mr. Hood was consuming daily, drinking up to 24 beers per day. When asked whether he could consume alcohol in moderation, Mr. Hood opined that he could not.

[64] Mr. Hood has not attended at a detoxification facility nor has he participated in inpatient substance abuse treatment programming save for one treatment program while in custody in 2010 or 2011. He told Dr. Pearce that he does require assistance in this domain and when he is released, he does not want to touch alcohol at all. He is “absolutely” willing to participate in any treatment recommended. When Dr. Pearce discussed disulfiram, an anti-alcohol medication with him, Mr. Hood said he would accept it.

[65] Mr. Hood reported that he last used marijuana in 2007 or 2008; at that juncture he was only smoking on occasion. He opined that his use of marijuana has not been problematic in a decade but he plans on avoiding it once released into the community. His use of cocaine escalated and around the age of 20, Mr. Hood was snorting one gram of cocaine every three days. Prior to his 2009 arrest, he was using once or twice per month. Mr. Hood expressed a desire to Dr. Pearce to avoid all drugs in the future.

[66] In Dr. Pearce’s opinion Mr. Hood was alcohol dependent and he may have been dependent on marijuana or cocaine. He states in his report that the most appropriate diagnosis appears to be alcohol dependence and polysubstance abuse; although both disorders are in remission in a controlled environment.

[67] Dr. Pearce is not concerned about the fact that Mr. Hood has not voluntarily started any treatment for alcohol and drug abuse while in the provincial jail. He doesn’t hold that against Mr. Hood as it is usually not that available in the pre-sentence stage. Mr. Hood has not been serviced by the federal correctional system, and it is Dr. Pearce’s sense that this system may hold certain benefits for him.

[68] Mr. Hood’s history of dealing with other supervision orders is generally that he has an adamant desire to get treatment and then a month later walks out of the program. Now Dr. Pearce believes there is a greater degree of authenticity when Mr. Hood says he wants to enter treatment. In fact Mr. Hood has made some efforts in that regard as I have already referred to and he filed certificates of training he has received in anger management, life skills and changing habits.

Reference Letters

[69] Mr. Hood filed an impressive brief of reference letters. There are two reference letters from Brighter Dayz, a not for profit organization that assists offenders to make seamless reintegration back into society. The letter dated June 15, 2010 from Stephanie Manning states that Mr. Hood successfully completed a writing workshop for the preparation of a resume and cover letter. Another letter, this time from Flavia McPherson dated November 26, 2010, states that Mr. Hood has been attending anger management, cognitive skills and resume writing workshops at the TEDC. She states that “Bryan displayed an eagerness to learn how to properly control and handle situations which requires him to think, and make the correct decision.” Her letter concludes that upon his release he will continue to have the support of Brighter Dayz to assist him on his release goals whether it is to attend school or find employment.

[70] A letter from Dr. Kym Maclaren, an Associate Professor of Philosophy at the University of Ryerson dated May 8, 2012, summarizes Mr. Hood’s achievements in the university credit philosophy course that he took. She confirms that he earned an “A” in the course; a full university course credit. Because it was a small class Dr. Maclaren states that she got to know the students well and that Mr. Hood stood out on many fronts; not only in his written work but also in discussions in class. She updated her reference by a letter dated May 27, 2013. This letter focuses on his character, not his achievements in the course. In this letter she states that she spent three hours per week talking with Mr. Hood in an individual or class setting. In addition she read his weekly written assignments. She concludes that “In sum, Bryan has given me a multitude of reasons to think that he is a thoughtful, upstanding, conscientious individual; I also think that this is in great part due to his own active and enduring efforts to transform himself into a constructive, creative and responsible individual.”

[71] A letter from the John Howard Society dated July 16, 2012 states that Mr. Hood while incarcerated has participated in a Helping Initiate Positive Participation Program which is for individuals of African Canadian descent who require support with employment, housing as well as accessing community resources upon their release from custody. A second letter, this time from Ainslui Cripps, the native inmate liaison officer, dated February 4, 2013, states that Mr. Hood has been an institutional client of the Society for the past three years and will continue to be supported by the native worker through both the NILO program at the institution as well as in the community when released. The letter states that during his participation in the native spiritual program Mr. Hood has participated well. The letter also sets out how the Society can assist Mr. Hood upon his release.

[72] There are three letters from staff at Redemption Reintegration Services, a non-profit organization that provides services and support to criminalized African Canadian youth in the priority neighborhoods of Toronto and the GTA. In a letter from Jody Dunn, the Program Director, dated July 27, 2012, she states that Mr. Hood has participated in weekly phone support meetings with support staff over the prior months and has committed volunteer hours at the organization upon his release. The purpose of those phone meetings was to create an exit plan for entrepreneurship, employment, as well as post-secondary education. Mr. Hood has been open to mentorship. In a letter from Kofi Morris dated June 3, 2013, a job developer and reintegration worker, he states that Mr. Hood, since October 2012, has received ongoing support via telephone and mail via their inmate support services. He speaks positively of Mr. Hood’s participation in that program. This letter refers to a recent incident with a fellow inmate in which Mr. Hood “responded out of character, resulting in a negative result. He has shared his genuine and heartfelt regret for his reactionary response at the time.” I presume this is a reference to the predicate offence. Even though it occurred in June 2011, it was in November 2012 when Mr. Hood was convicted. Another letter from Mr. Morris dated March 20, 2014 was also filed. It confirms that Mr. Hood registered in their Distance Mentorship Program and has maintained consistency with their phone mentorship support to the present date. It speaks positively of Mr. Hood’s participation in that program. Mr. Morris states that while incarcerated Mr. Hood has utilized his time wisely and has published his own poetry book and plans to continue exploring his talents as an author and artist which he feels could be used as a tool to inspire and support other young people in their journey to redemption.

[73] Dale Sawyers, an educator with the Toronto District School Board, wrote a letter of support from the perspective of a family friend. He states he is willing to directly support Mr. Hood in any way possible to move him towards a productive and contributory life path. Similarly a letter from Amanda Parris who is a family friend speaks positively of Mr. Hood’s character and confirms his committed family support system. There are also letters from Mr. Hood’s three brothers and his former partner Malini Sukhu; the mother of his first child. These letters urge me not to designate Mr. Hood as a dangerous offender. Ms. Sukhu was contacted by Dr. Pearce on behalf of Mr. Hood and said that she believes that Mr. Hood wants to go back to being a good guy and needs a second chance.

[74] Reverend Judith Russo, the Duty Chaplain at the TEDC, wrote a letter of support dated May 30, 2013. She states that she has had individual sessions with Mr. Hood aimed at helping him understand his own motivation and how he can bring about positive change in his life. She also states he completed the Battlefield of the Mind program which helps individuals understand how to control their thoughts and make the changes they need to make in their lives. She has also facilitated communication between Bryan and the adoptive family of his son. He now has a renewed opportunity to be the role model he wants to be for his son.

[75] A letter from Mr. Trevis, the program manager at the Look at My Life Project, states that Mr. Hood is taking a business course; developing a business plan through Centennial College which he will successfully complete by July 31, 2014. He is described as an “active, engaged learner and a dedicated student.”

[76] In Dr. Pearce’s experience, the reference letters in support of Mr. Hood are the best that he has ever seen and in fact he testified that most of these clients have no reference letters to speak of. The reference letters are another positive factor in terms of Mr. Hood’s prospects for rehabilitation.

Evidence of Sherri Rousell

[77] Ms. Rousell testified that as of December 27, 2013, Mr. Hood reached his statutory release date (“SR date”) and that subject to releasing him on certain conditions, the Parole Board did not feel that he still meets the criteria for detention. In other words, unless the additional time he is sentenced to results in his SR date being pushed to the future he would be released from custody immediately with the conditions set by the Parole Board. She also advised that Mr. Hood’s Warrant Expiry date is May 27, 2015.

[78] Ms. Rousell explained how a sentence imposed by this court would impact on Mr. Hood’s SR date. Any sentence for the current charge will be consecutive and will be added on to the current sentence as of the Warrant Expiry date. Mr. Hood’s SR date would then be recalculated accordingly. His revised SR date would be 2/3 of the aggregate sentence; i.e. the new sentence added to May 27, 2015. If imposed, the LTSO would in turn, commence at Mr. Hood’s new Warrant Expiry date. Conditions for the LTSO would be recommended closer to the Warrant Expiry date and would likely be very similar to those imposed for his SR (which I will come to). In terms of managing this case, she advised that she would like to be kept informed with respect to the sentence imposed in the event that Mr. Hood’s SR date remains in the past or if it only gets pushed slightly forward, because one of his conditions is to reside in a community correctional centre and she would need to find a bed for him.

[79] Ms. Rousell testified that even if the new sentence that is imposed is a provincial sentence, then depending on its length Mr. Hood would still serve it in a federal institution.

Decision of the Parole Board of Canada dated December 23, 2013

[80] In follow up to her evidence and with the consent of counsel Ms. Rousell provided the decision of the Parole Board of Canada outlining the conditions for Mr. Hood’s Statutory Release. They include avoiding complainants, residing at a specific place; namely a community correctional centre or community residential facility or other residential facility until the warrant expiry date, reporting all intimate sexual and non-sexual relationships and friendships with females, not entering drinking establishments, financial disclosure, not to consume alcohol, following the treatment plan arranged by his parole supervisor in the areas of substance abuse, violence and family violence, not to consume illegal drugs and not associating with any person who he knows or he has reason to believe is involved in criminal activity. No overnight leave privileges are to be given until the further decision of the Board.

[81] The reasons for the special conditions as expressed by the Parole Board include the fact that Mr. Hood has a “very serious and concerning criminal history that includes much violence”. The reasons also confirm that Mr. Hood’s file indicates significant abuse of both alcohol and drugs which has contributed to his offending. The reasons confirm that the Board reviewed the psychiatric assessment by Dr. Pearce and that Dr. Pearce recommended certain conditions on release which the Board is imposing. The Board explains why it did not impose a “seek or maintain” condition with respect to employment or academic pursuits. The Board states that given the close supervision and very restricted access to the community that is anticipated in Mr. Hood’s case it is expected that he will work towards his goals and make plans to be implemented if and when he is able to gain more access to the community. The Board notes that there was no indication of any intoxicants being a part of his two recent assaults while in custody. The Board also notes that Mr. Hood is described as “confrontational, aggressive and assaultive towards correctional staff”. The Board goes on to say “While you have engaged in a number of positive pursuits while in provincial custody through programs and educational upgrading, you have also incurred numerous institutional charges and a number of placements in segregation. Your remorse for the impact of your actions on your complainants and insight into your behaviour is described as limited”. The Board notes that while Mr. Hood proposes a release to the home of his mother it is clear that “residing in her home in the past has failed to curtail your criminal behaviour”.

[82] The Board concludes that “In the absence of a residency condition, you would pose an undue risk to the community by committing a Schedule I offence prior to warrant expiry.” The Board is not prepared to authorize overnight leave privileges at this time but states it can be reviewed in the future once a period of stability and commitment to change has been demonstrated.

Dr. Pearce’s Psychiatric Opinions and Recommendations

Diagnosis

[83] In Dr. Pearce’s opinion, placement in open custody had little effect in treating Mr. Hood’s rebellious behaviour as a youth as he recidivated while refusing to abide by court-imposed conditions and restrictions. He has continued in this regard into adulthood save for the one relatively brief gap in his criminal record, from the time he was released from custody in early 2006 to the time he committed a violent assault in June 2008. Dr. Pearce states that Mr. Hood has demonstrated “a remarkable temper” and has been sentenced on several occasions and over a span of many years for violent offences. He goes on to say that Mr. Hood “has assaulted strangers, drug trade acquaintances, and romantic partners, most often in an impulsive manner. Alcohol and possibly other substances have fuelled his aggression, although they are not a prerequisite for violent behaviour.”

[84] In Dr. Pearce’s opinion, Mr. Hood presents as “grandiose, somewhat superficial and as lacking in empathy. He is very impulsive and he has displayed criminal versatility. Finally, he has repeatedly failed to abide by conditions placed upon him and he has not addressed criminogenic risk factors.”

[85] In the opinion of Dr. Pearce, although Mr. Hood does not have a major mental illness, he does suffer from antisocial personality disorder. Dr. Pearce is further of the opinion that all of the essential features of such a disorder, namely failure to conform to social norms with respect to lawful behaviours; deceitfulness; impulsivity; irritability and aggressiveness; and reckless disregard for the safety of self or others; consistent irresponsibility and lack of remorse as indicated by being indifferent to having hurt or mistreated another, all pertain to some extent to Mr. Hood or have applied to him at some extent over the course of his offending history.

[86] Dr. Pearce was mindful of the fact that Mr. Hood could be trying to manipulate him, given the trait of deceitfulness that is part of this disorder and he factored this into his findings and opinions with respect to Mr. Hood’s prospects for rehabilitation. In particular, Dr. Pearce considered the fact that Mr. Hood in the past has said he was going to change his life and accomplish certain goals and then re-offended. Dr. Pearce relied not only on Mr. Hood telling him that he was going to change but was also impressed with his school attendance, his ability to in the last few years to abide by institutional rules and not get into altercations within the institution, and his reference letters. He also considers Mr. Hood an intelligent man and he did seem to have some insight into what his problems were although given deceitfulness is a trait he does have some concern whether Mr. Hood truly has insight.

[87] As for treatment of this disorder, unfortunately Dr. Pearce advised that at present there is little empirical evidence suggesting that individuals with this particular disorder are capable of personality change, even with assiduous treatment. Treatment for antisocial personality disorder primarily focuses on anger management training, social skills training, and vocational training in order to attempt to provide the individuals with a viable trade.

[88] Dr. Pearce testified that the factors that work to Mr. Hood’s benefit in terms of treatability of his personality disorder help with a reduction of the expression of the negative consequences of having that disorder. The expression of personality disorders wax and wane with substance abuse and stressors from life circumstances. Dr. Pearce hopes that with his recommended plan in place that those traits would become less evident if Mr. Hood did well. He hopes that in a decade one wouldn’t even consider the personality disorder to be an active diagnosis although the concern that the disorder could be near the surface is lifelong.

[89] Dr. Pearce testified that lack of remorse and lack of insight does not necessarily mean that there is a higher risk of re-offence. Other factors are much more important in terms of the risk like the number of prior convictions, a substance use disorder and those kinds of things. It does however, present treatment challenges. He was impressed with Mr. Hood’s insight with respect to his substance abuse disorder and said this is a positive prognosticator although it is possible that he was telling him the right things but was not sincere. He does believe Mr. Hood has a fairly severe substance abuse disorder but the fact that he hasn’t used alcohol or drugs institutionally is a good sign.

Opinion on Criteria for Dangerous Offender/Long-Term Offender Status

[90] Dr. Pearce used two recognized risk assessment instruments and combined the results to generate a final risk assessment of an act of violence while having access to the community. Dr. Pearce tried to turn his mind to what would happen if Mr. Hood were just released into the community without any constraints on his behaviour. He concluded that given the results of the tests he administered, that in his opinion Mr. Hood is likely to re-offend violently, absent significant interventions. Dr. Pearce uses the word “likelihood” to mean 51%. In terms of the severity of future offences Dr. Pearce testified that there have been both minor assaults and quite serious assaults including one stabbing so there is the possibility of severe violence in the future. Mr. Hood has, since a young age, perpetrated several acts of serious violence towards others and since 2010, he has incurred convictions for at least five violent offences, including two aggravated assault convictions. Thus in the opinion of Dr. Pearce, overall, the possibility that Mr. Hood may again commit a serious assault remains of substantial concern. He predicts a future assault charge that could be anything from a light tap on the head to murder. Dr. Pearce’s clinical opinion is that the possibility Mr. Hood may again commit a serious assault remains a substantial concern.

[91] In Dr. Pearce’s opinion, from a purely psychiatric perspective, Mr. Hood meets the statutory test for dangerous offender designation, as articulated in the Criminal Code. His reasons are the likelihood of future violence that I have already referred to and that Mr. Hood has manifested “indifference to the reasonably foreseeable consequences of his behaviour”. His support for that opinion is based largely on Mr. Hood’s prior behaviour under supervision, for example, with parole officers. Mr. Hood seemed to identify what his risk factors were such as substance abuse but he didn’t always participate in programming and didn’t report as expected. He has not followed through with recommendations made to him and it was said by some parole officers that he only paid “lip service” to treatment to address his underlying difficulties. He would also minimize his prior misdeeds.

[92] In terms of whether there has been a pattern, in Dr. Pearce’s opinion, from a psychiatric perspective there have been repeated assaults from a young age. They have taken place on different complainant types. That is of concern because the more complainants the more potential complainants which means a larger possible complainant pool. That makes risk management harder because it is difficult to narrow down the complainant pool for future risk. Dr. Pearce testified that the fact that Mr. Hood has not been involved in altercations over the past three years does not disrupt the requirement of a pattern to warrant the designation of a dangerous offender. It does, however, help him with the prognosis.

[93] Mr. MacGregor submitted that in answer to questions that I asked Dr. Pearce, his opinion that Mr. Hood meets the definition of dangerous offender from a psychiatric perspective was undermined. Dr. Pearce testified that when he stated in his report that Mr. Hood is in a moderate to high-risk category for violent recidivism that by the word “violent” he means anything from a tap on the head to something far more serious. He also testified that when he stated that in his opinion the possibility that Mr. Hood may again commit a serious assault remains a substantial concern absent significant interventions, by “serious” he was obviously not talking about a tap on the shoulder. In final questions from Mr. Fried, Dr. Pearce said that there is a “good chance” that a future assault could be a serious one. Mr. MacGregor confirmed with Dr. Pearce that his opinion that a serious assault remains a substantial concern is because at this stage Mr. Hood has had virtually no programming. If he succeeds at programming then that significantly diminishes the chance of a serious assault. I will come back to how in my view this evidence impacts Dr. Pearce’s opinion.

[94] Dr. Pearce was asked to comment on the fact that in 2010 there were two altercations within a one month period. He testified that several factors can contribute to violence and at this time Mr. Hood may have been in a different state of mind mentally which could have caused him to be more irritable. It could also be that he was more anxious about his circumstances and he was withdrawing from alcohol use during his initial incarceration. All these things can help raise the likelihood of violence.

[95] Dr. Pearce recognized that the court would also want to know whether in his opinion Mr. Hood may eventually, with the passage of time and/or treatment, present with a “reasonable possibility of eventual control of the risk in the community”. In this regard he assumed that “reasonable possibility of eventual control of the risk in the community” does not suggest zero tolerance for any offending behaviour, but rather suggests harm reduction with respect to serious offending.

[96] Since Dr. Pearce is of the opinion that Mr. Hood is at moderate to high risk of committing another violent offence, he stated that from a psychiatric perspective, whether Mr. Hood would meet criteria for long term offender status hinges on whether he can be considered treatable, and whether such treatment offers any hope that his risk could be managed within the community both while under supervision (and subject to a LTSO) and after the expiry of such an order.

[97] With respect to Mr. Hood’s diagnosis of substance abuse and/or dependence, according to Dr. Pearce, there is a high relapse rate in individuals with heavy, chronic substance use patterns. In Mr. Hood’s case, he has ongoing concerns since Mr. Hood has consistently returned to substance use (alcohol, cocaine and marijuana primarily) even though he has been prohibited from using intoxicants. However, positive prognostic indicators are that Mr. Hood has not consumed drugs or alcohol while incarcerated, his use of drugs was seemingly less severe prior to his most recent period of incarceration although his alcohol use was heavy, and Mr. Hood told Dr. Pearce that he viewed his substance use as problematic and he expressed a desire to obtain treatment, which are positive prognostic indicators. The fact that Mr. Hood would accept disulfiram would likely assist with risk management vis-à-vis alcohol use, although as Dr. Pearce noted Mr. Hood would need to remain compliant with this medication after his release from custody, since this cannot be administered without his consent, and disulfiram would not assist with his predilection towards cocaine and marijuana. Dr. Pearce also suggested that Mr. Hood be required to provide urine samples for toxicological analysis which may assist in ensuring abstinence. With these considerations in mind Dr. Pearce is of the opinion that there are some reasons for optimism that this criminogenic variable may be successfully targeted.

[98] Dr. Pearce noted that Mr. Hood’s personality disorder must also be targeted and in this regard his prognosis is guarded. Mr. Hood has struggled with impulsivity and his temper since he was young and he has become increasingly violent (at least as per his criminal record) with time. Mr. Hood is also fairly young and in Dr. Pearce’s opinion is likely at least one or two decades away, from starting to “burn out”, in terms of his proclivity towards violence; namely when Mr. Hood is in his mid-forties to early fifties. However, Dr. Pearce noted several strengths: 1) Mr. Hood’s PCL-R score is not above 30 (in other words he is not a psychopath); 2) he has not been violent in custody for approximately three years; 3) he reports that he wants to be more mature and responsible and in that regard he has started to assume more responsibility in terms of institutional offences. Dr. Pearce believes he is sincere in this regard; 4) he has voluntarily started to participate in treatment programming to help reduce his future likelihood of violence; 5) he has returned to school and succeeded there particularly by choosing to pursue his OSSD, as opposed to simply sitting the GED examination which is impressive, as are the reference letters; and 6) Mr. Hood presents as relatively intelligent and he appears to have some motivation for change. Overall he presents as motivated and willing to work towards his goals (although he requires assistance in focusing on one or two reasonable goals, as opposed to several overly ambitious and unrealistic ones) and 7) elsewhere in his report Dr. Pearce also notes the fact that Mr. Hood also has some support in the community, namely his former partner, certain family members and members of various community organizations which is a positive.

[99] Dr. Pearce amplified the second strength and testified that the fact that Mr. Hood has gone about three years without any disciplinary issue suggests he has tried to address his anger problem and there is a greater chance that he can succeed with anger management; it also speaks to his motivation to change. Dr. Pearce knows he must be working hard at that and that he has taken anger management programs. All of this leads Dr. Pearce to be more comfortable with a LTSO and it also suggests he will be more manageable in the community with the right supports.

[100] For these reasons Dr. Pearce is of the opinion that there are some reasons for optimism that Mr. Hood will be manageable in the community upon the expiry of a LTSO. Dr. Pearce added when he testified that it is hard to say that Mr. Hood definitely will be manageable in the community. Dr. Pearce went on to say that taking into account everything he knows about Mr. Hood he believes there is a reasonable possibility that he will be manageable assuming Mr. Hood complies with the recommendations in the report.

[101] Dr. Pearce asked Mr. Hood whether he feels any risk of re-offence. He also tried to educate Mr. Hood as to why he might be at risk for re-offence and proposed to him that a LTSO is something that will help him not punish him and help him achieve his goals. In Dr. Pearce’s experience with a LTSO if clients are doing well on long term supervision and avoiding things like alcohol or drugs and they are reporting as expected and working and doing the treatment programs that are required, the parole officer will work with that client and give them more and more freedom over time. In his opinion that is the best way to achieve long term success. Dr. Pearce feels that Mr. Hood needs this but advises that Mr. Hood did not think he needed this to succeed.

[102] Mr. MacGregor submitted that although Mr. Hood says that he doesn’t need any help and that he won’t re-offend if you “drill down” he accepts that he has a problem and has made mistakes. The best representation of who he is, is by his actions and inaction. There is recognition of responsibility and the need to change. He recognizes that he has hurt people. He recognizes that without treatment he has no future. Although I am unable to say if this is really how Mr. Hood feels, given that he has instructed Mr. MacGregor to oppose the designation and seek a conventional sentence, I certainly hope it is true as much of the success of the treatment proposed by Dr. Pearce requires Mr. Hood to participate in a meaningful way-lip service will not help him deal with his issues.

Dr. Pearce’s Recommendations

[103] At page 40 of his report, Dr. Pearce sets out his opinion, if Mr. Hood is placed in the community, as to what structures and conditions should be put in place. I will not repeat them here but they include what should happen during incarceration and while being supervised under a LTSO.

The Position of the Parties

Submissions of Mr. Fried

[104] Mr. Fried submitted that Mr. Hood should be designated a dangerous offender. He relies on what he submits is a pattern for Mr. Hood that started in 2008. Thereafter there were four impulsive acts where there was sustained violence; in one case with a weapon and serious injury to four different complainants in a period of only two years. He relies on the incident in June 2008 when Mr. Hood stabbed a man riding by on a bicycle cutting his trachea, his assault of Ms. May in February 2009, when he beat her badly and confined her in a washroom, the predicate offence in June 2010 and finally the assault Mr. Hood was convicted of that occurred in the Don Jail in August 2010. All of these assaults occurred in a little over a two year period. In addition Mr. Fried relies on the institutional misconducts between 2008 and August 2010. It is Mr. Fried’s position there should be a ten year LTSO based on Dr. Pearce’s opinion. By the end of that period Mr. Hood would be in his mid-forties and there would be less chance of future violence.

[105] Mr. Fried submitted that the appropriate sentence for the predicate offence is three to four years. He makes this submission in light of Mr. Hood’s criminal record. As for ancillary orders, Mr. Fried expects there is a DNA sample already but has to ask for it and also asks for a s. 109 order for life.

Submissions of Mr. MacGregor

[106] Mr. MacGregor submitted that Mr. Hood does not qualify as a dangerous offender. In particular he submitted that there was not a significant pattern to the offences relied upon by Mr. Fried. Mr. Hood’s four offences were with respect to two people in custody and two outside. He argued that the stabbing was a retaliatory strike and the other offence was a domestic one and that there are significant distinctions. Alcohol abuse was influential in the domestic situation where there was a dispute and the breakdown of a long term relationship.

[107] Mr. MacGregor submitted that the real issue is whether or not I determine that continuing supervision is necessary for Mr. Hood to reduce the risk of his re-offending. The only way to supervise Mr. Hood is to give him a designation of either a dangerous offender or a long term offender.

[108] Mr. MacGregor submitted that the appropriate sentence is that there be no designation and at most there be a six month to a year penalty.

The Statutory Framework

[109] Since the predicate offence took place in 2010 the current definition of dangerous offender set out in s. 753(1)(a) of the Criminal Code applies. The applicable part of the definition in this case is 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, [or]

(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 …

[110] The rebuttable presumption set out in s. 753 (1.1) does not apply.

[111] Section 753(1) provides that if the offender meets the definition of dangerous offender the court "shall find the offender to be a dangerous offender". The court's discretion is found in s. 753(4) as to the penalty: (a) indeterminate detention, (b) at least 2 years imprisonment and a LTSO of up to 10 years, or (c) a conventional or determinate sentence.

[112] Section 753 (4.1) provides that 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.

[113] If I conclude that Mr. Hood is not a dangerous offender then pursuant to s. 753.1(1), I may find Mr. Hood to be a long term offender if I am 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 re-offend; and

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

[114] If the long term offender criteria is satisfied, s. 753.1(3) of the Code provides that the court shall 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. Alternatively, pursuant to s. 753(5) I may impose sentence for the offence for which the offender has been convicted.

Is Mr. Hood a Dangerous Offender?

[115] For convenience I will set out again the relevant definition the Crown relies upon. Sub section 753(1)(a)(i) and (ii) provides that I must find Mr. Hood to be a dangerous offender if I am satisfied that Mr. Hood constitutes a threat to the life, safety or physical or mental well-being of other persons because of evidence establishing “a pattern of repetitive behavior” by Mr. Hood, of which the offence for which he has been convicted forms a part, showing a “failure to restrain his … behaviour and a likelihood of causing death or injury to other persons, …. through failure in the future to restrain his … behaviour,” or “a pattern of persistent aggressive behaviour of which the offence for which, he … 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 … behaviour,”.

[116] Mr. Fried relies on the very recent decision of the Ontario Court of Appeal; R. v. Szostak, 2014 ONCA 15. He submitted that if there was a pattern for this offender, then clearly there is a pattern that has been established for Mr. Hood.

[117] In Szostak, the pattern relied upon by Rosenberg J.A. (at para. 63) in support of a dangerous offender finding consisted of 1) in 2005 the offender hit a customer in a bar over the head with a beer bottle after getting into a shoving match because of a dispute about standing in line for the washroom, 2) in 2006, the offender while drunk and high on drugs, following a fight with five other individuals came up behind the complainant, mistaking him for someone who had been involved in that altercation and slashed him across the neck with a pair of scissors, 3) the predicate offences when in 2008 the offender beat an acquaintance so badly he needed to go to hospital and a year later he slashed the same person’s face with a small pocket knife.

[118] At para. 36 Rosenberg J.A. speaking for the court stated:

… there has been an important shift in the way in which the legislation works. The trial judge’s discretion has narrowed in one sense, the judge no longer has the discretion not to find a person a dangerous offender who fits the definition. But the discretion has been broadened in that the judge has wider sentencing options for a person who does come within the dangerous offender definition.

[119] After reviewing the history of the legislation and numerous cases, at para. 63 Rosenberg J.A. held that in that case:

The appellant’s repeated resort to force that caused serious injuries shows the necessary pattern under either paragraph (i) or (ii) [of section 753(1)(a) of the Criminal Code.] There were sufficient relevant similarities to demonstrate the pattern called for in these paragraphs. As the court said in Neve at para. 113 [R. v. Neve, 1999 ABCA 206]: “Similarity … can be found not only in the types of offences but also in the degree of violence or aggression threatened or inflicted on the victims.” Over a very short period, four years, the appellant seriously injured three different people. He resorted to weapons in three of the offences and inflicted serious injuries.

[120] This passage applies equally to Mr. Hood save that he only used a weapon in one case.

[121] The balance of the passage quoted by Rosenberg J.A. from the Neve decision at para. 51 is also helpful. There the Alberta Court of Appeal, dealing with an earlier version of s. 753(1)(a) stated:

Because the pattern of past behavior must be repetitive (s, 753(1)(a)) or persistent (s. 753(a) (ii)), evidence of one episode of violence or aggression will not suffice…This does not mean that it will always be necessary that the offender have a lengthy history of violence or aggression. To the contrary. Depending on the fact, a pattern sufficient to form the basis for predicting future behavior which threatens others may be found on very few such incidents…Generally however, in order to meet the requirements of a pattern, the fewer the incidents, the more similar they must be. [Underlining and brackets in original]

[122] Considering Mr. Hood’s previous criminal convictions, including the predicate offence, I am satisfied that there has been a pattern of repetitive behavior showing a failure to restrain his behaviour that is characterized by spontaneous outbursts of violent attack with a significant degree of force, causing serious personal injury. Although self defence has sometimes been asserted the assaults seem to have been provoked by trifling matters; certainly matters that in no way justify Mr. Hood’s response. The assaults have not always occurred when Mr. Hood has been intoxicated. Save for when he had a weapon, the degree of force is significant; not, for example, a single punch or slap thrown in anger. Furthermore, Mr. Hood has generally tried to minimize his conduct even where he has taken responsibility for his actions.

[123] This pattern began after a lull, in June 2008, when Mr. Hood approached the man riding his bicycle and stabbed him in the neck lacerating his trachea. Although as Mr. MacGregor submitted there could have been a retaliatory aspect to this assault, based on the information provided by Mr. Hood to Dr. Pearce, Mr. Hood impulsively attacked this man; this was not a pre-planned assault. Mr. Hood says that he was intoxicated at the time of this incident.

[124] In February 2009 Mr. Hood viciously attacked his former girlfriend in her home by punching and kicking her about the head and body and threatening her with a knife, all because she wanted him to leave. Again this outburst appears to have been impulsive and not pre-planned. Again the complainant sustained serious injury including bruising to her brain tissue, lacerations and bruises about her body. In Dr. Pearce’s opinion, based on what Mr. Hood told him, he thinks that Mr. Hood minimized this assault although he did take responsibility for it.

[125] In June 2011, there is the assault on Mr. Tutton; the predicate offence. I have already described that assault in detail and set out my findings of fact. I have found that assault was unprovoked or at least spontaneous and amounted to a beating of Mr. Tutton over a cheese sandwich. Mr. Tutton was seriously injured and it could have been worse if others had not intervened. Mr. Hood admitted to Dr. Pearce that his actions weren’t voluntary and that the assault “just happened”. Mr. Hood was not intoxicated or under the influence of drugs at the time. Mr. Hood has told Dr. Pearce that he believes that he may be labelled a dangerous offender, “all because of a couple of fistfights”. As Dr. Pearce opined there is obviously a fairly significant or extreme minimization by Mr. Hood of his conduct.

[126] Dr. Pearce thinks that Mr. Hood generally regrets having assaulted Mr. Tutton but a lot of that regret is about the inconvenience it has been for him as opposed to empathy for the complainant. However, he does appear genuine to Dr. Pearce when he says he will try to change his behaviour and respond differently in the future. Dr. Pearce doesn’t care which reason Mr. Hood relies on. He can either not re-offend because he feels badly for someone else or he can not do it because he doesn’t want to be punished anymore. Either one is acceptable. In any event Mr. Hood’s lack of remorse is not a factor indicating a risk of re-offending; see also R. v. Levert (2001), 2001 CanLII 8606 (ON CA), 159 C.C.C. (3d) 71 at paras. 39-40.

[127] Finally, two months later, there is the other inmate assault in August 2010, where over a trivial dispute over the complainant’s use of a telephone, Mr. Hood struck him in the face a number of times before corrections officers intervened. Even accepting Mr. Hood’s statement to Dr. Pearce that the complainant punched him in the face first, if he raised a defence of self defence at trial it was obviously not successful. Again Mr. Hood was not intoxicated or under the influence of drugs at the time.

[128] In addition there is the fact, based on the Institutional records for Mr. Hood, that he has been involved in committing or threatening to assault another inmate on many occasions; nine in the two year period between September 8, 2009 and September 13, 2011, including the two offences he was convicted of. A February 8, 2011 entry indicates that he required intensive supervision given a “pattern of serious, seemingly unprovoked violence against [a] variety of complainants”. This was confirmed by Mr. Hood to Dr. Pearce when he told him that he was involved in “quite a few fights” when first incarcerated in 2009 although Mr. Hood denied muscling and bullying.

[129] I appreciate Mr. Hood has not been found guilty of any offences or misconducts for the last three years. In fact there is no evidence that he has been involved in any altercations. Mr. MacGregor submits that this is despite being in an environment that is very conducive to commit violent acts; the general inmate population. Mr. Fried, however, argues the opposite given the presence of guards and surveillance cameras. Whatever the reason, this gap is important. It does not, however, undermine my conclusion that the necessary pattern has been made out by the Crown.

[130] The other aspect of the definition requires the Crown to satisfy me that there is a likelihood of Mr. Hood causing death or injury to other persons through failure in the future to restrain his behaviour.

[131] In this regard Dr. Pearce’s opinion is important. I have already reviewed his opinion in some detail. In summary Dr. Pearce concluded that given the results of the tests he administered, that in his opinion Mr. Hood is likely to re-offend violently, absent significant interventions. Dr. Pearce uses the word “likelihood” to mean 51% which is how I would use it. In terms of the severity of future offences Dr. Pearce testified that there have been both minor assaults and quite serious assaults including the one stabbing so there is the possibility of severe violence in the future. Thus in the opinion of Dr. Pearce, overall, the possibility that Mr. Hood may again commit a serious assault remains of substantial concern. He predicts a future assault charge that could be anything from a light tap on the head to murder. This, of course, assumes that Mr. Hood is released without intervention.

[132] I appreciate that Dr. Pearce was not able to say that there was a likelihood of a future serious assault, only that this was a substantial concern or that it was a “good chance”. In his report he paraphrased the definition of dangerous offender in part as requiring a likelihood of committing a future serious violent offence. If that were the legal test then there would be a question of whether or not his opinion meets this requirement. However, in my view Dr. Pearce put the threshold on the Crown too high. The Crown does not need to prove a likelihood of a serious assault but rather that Mr. Hood constitutes a “threat to the life, safety or physical…well-being of other persons,” based on the evidence of the necessary pattern, which includes showing a “likelihood of causing death or injury to other persons”. There is no question that Dr. Pearce’s opinion meets this definition and his opinion that there is a good chance of a serious assault without intervention is relevant.

[133] Mr. MacGregor submitted that Mr. Hood has two key issues; drinking and anger. He points out that although alcohol, according to Dr. Pearce, is available in the jail Mr. Hood has abstained for five years. He is also willing to undergo treatment and take the medication. As for anger issues, his behaviour suggests there has been no issue for three years. On this basis Mr. MacGregor submitted that Mr. Hood could be managed in the community without a designation.

[134] I accept the submission that Mr. Hood has made progress while incarcerated, but in my view that progress does not given me any assurance that if Mr. Hood were released into the community that he would not re-offend in the manner predicted by Dr. Pearce if he is not properly supervised and treated for his substance abuse problems and anger management. He has assaulted people both while intoxicated and when not. The real test of his abstinence from alcohol will be when he is released into the community. The same is true of his spontaneous assaultive behaviour. I appreciate that it has stopped for three years but there was a lull before. According to Dr. Pearce, Mr. Hood suffers from an antisocial disorder which is difficult to treat. There was a significant gap before in his assaultive and criminal behavior and yet his criminal conduct resumed and continued. In Dr. Pearce’s opinion this gap is a good sign and evidence that Mr. Hood can be treated but he did not say that it undermined his opinion from a psychiatric perspective that Mr. Hood meets the criteria of a dangerous offender. He is very clear that Mr. Hood needs long term supervision.

[135] I appreciate that, as Mr. Fried concedes, there is exceptional disparity in the pattern of past offences. In Szostack at para. 57, Rosenberg J.A. referred to R. v. Hogg, 2011 ONCA 840, where the Court of Appeal considered the meaning of the phrase "a pattern of repetitive behaviour" in s. 753(1)(a)(i). Justice Rosenberg noted that the court made an important point about the number of offences and suggested the need for remarkable similarity where only two offences were involved but that “fewer exact similarities were needed” where four offences were involved.

[136] In any event, there are significant similarities that cause me to believe the pattern would likely continue without proper intervention. Mr. Hood has responded in anger to trivial incidents such as a dispute over a phone or a cheese sandwich. In the domestic case, he may have been upset about being asked to leave but he was in Ms. May’s residence and her request that he leave was reasonable. With respect to the stabbing even if it can be characterized as retaliatory, there was no immediate threat at the time to Mr. Hood and he admitted to Dr. Pearce that he acted impulsively. This aspect of the pattern suggests to me that it does not take much to provoke Mr. Hood. It also suggests that he acts impulsively. When he does, he uses excessive force causing serious injury. It is notable that it seems that Mr. Hood never suffers any serious injury in these assaults. The fact these assaults have involved different complainants may be a distinguishing feature but in my view makes Mr. Hood’s past conduct of even more concern as it is impossible to predict in what situations these outbursts will occur.

[137] The spontaneous and impulsive nature of Mr. Hood’s past assaults and the degree of force used is in my view the most important aspect of the pattern. As Rosenberg J.A. at para. 60 of Szostack stated:

…the fact that the various offences were spontaneous strongly tells in favour of a pattern in the sense of both paras. (i) and (ii) of s. 753(1)(a). Looking particularly at para. (i), that the appellant was capable of spontaneously acting with such great violence as exhibited in the four offences demonstrates a failure to restrain his behaviour and a likelihood of causing death or injury to other persons through failure in the future to restrain his … behaviour.

[138] With respect to the second prong of the definition, in addition to the spontaneous aspect of the pattern, there is also evidence that Mr. Hood has minimized his actions and on that basis there has been a pattern of persistent aggressive behaviour, including the predicate offence where Mr. Hood has shown a substantial degree of indifference respecting the reasonably foreseeable consequences to other persons of his behaviour.

[139] This is an issue addressed by Dr. Pearce and although I do not have evidence about Mr. Hood’s views about every offence, he clearly lacks insight into his conduct and minimizes it and even attempts to justify it by alleging as he did in the case at bar, self defence. Mr. Hood did not act in self defence in this case. It was presumably raised as a defence in the case of the other inmate assault in August 2010 and there is reference to this position in the institutional records related to other misconducts.

[140] Furthermore, Mr. Hood did not appreciate the impact of his misconduct on Ms. May or Mr. Tutton. In the case of Mr. Tutton, to characterize it as a “fistfight” is far from the truth. It was an unprovoked beating of a weaker man.

[141] Mr. MacGregor argued that Mr. Hood has pled guilty for a significant number of offences which he submitted is not evidence of a blanket indifference. However, there can be many reasons for pleading guilty. I prefer to rely on the comments Mr. Hood has made to Dr. Pearce as a more accurate indicator of his views.

[142] For these reasons the Crown has satisfied me beyond a reasonable doubt that Mr. Hood’s repeated resort to force that has caused serious injuries shows the necessary pattern under either paragraph (i) or (ii) of s. 753(1)(a) of the Criminal Code. Accordingly I conclude that I must find that Mr. Hood is a dangerous offender within the meaning of s. 753(1)(a) (i) and(ii) of the Criminal Code.

The Appropriate Sentence in this Case

[143] Having concluded that Mr. Hood meets the definition of a dangerous offender, I must impose a sentence in accordance with s. 753(4) of the Criminal Code. The Crown does not seek an indefinite sentence and for the reasons that follow, in my view such would not be required pursuant to s. 753(4.1) given the opinion of Dr. Pearce as to what can be accomplished with supervision and treatment which I accept.

[144] However, in my view a conventional sentence would not adequately protect the public. I have already reviewed the opinion of Dr. Pearce which I accept and as he explains Mr. Hood requires a lengthy period of supervision and monitoring to protect the public. He recommends that Mr. Hood be subject to a LTSO for ten years. This cannot be accomplished with a conventional sentence. The evidence and opinion of Dr. Pearce and the other evidence that shows that even if Mr. Hood were released on the strict parole supervision terms contemplated by the Parole Board, they would not be supervised for only a short period of time until his Warrant Expiry date. A conventional sentence could extend that date and there could be a period of probation but in my view that would not provide the time of supervision Mr. Hood needs. First, the period of supervision would not be as long and secondly, certain terms recommended by Dr. Pearce, such as residential placement would not be possible.

[145] I have concluded that the appropriate remedy is at least 2 years imprisonment and a LTSO of up to 10 years. I rely in particular on the following factors:

a) In the opinion of Dr. Pearce, although Mr. Hood does not have a major mental illness, and he is not a psychopath, he does suffer from antisocial personality disorder. All of the essential features of such a disorder have applied to Mr. Hood in the past or currently. These features, relevant to the risk of future offending, include a failure to conform to social norms with respect to lawful behaviours; impulsivity; irritability and aggressiveness; and reckless disregard for the safety of others; and lack of remorse as indicated by being indifferent to having hurt or mistreated another. This means that Mr. Hood can be quite impulsive and aggressive and he minimizes his role in assaults and the impact of his actions on the complainant demonstrating his indifference to having injured someone;

b) As late as February 2011 the institution where Mr. Hood is incarcerated indicates that he requires intensive supervision given a “pattern of serious, seemingly unprovoked violence against [a] variety of complainants including domestic [ones]”.

c) Mr. Hood can be quite impulsive and aggressive;

d) I accept the opinion of Dr. Pearce that if the necessary rehabilitation is not carried out there is a substantial concern or a good chance that Mr. Hood will commit a serious assault in the future and certainly a likelihood of causing injury to other persons.

e) Mr. Hood has spent a good part of his adulthood running into difficulties with the law with many prior serious assaults on his record;

f) Mr. Hood has had some substance abuse issues, particularly with alcohol and cocaine in the past, that have contributed to some of his offences.

g) Dr. Pearce has suggested certain risk reduction strategies that would be useful to ensure that Mr. Hood is absolutely abstinent from alcohol and drugs once in the community as when he is intoxicated or high he becomes more aggressive.

h) Mr. Hood has voluntarily completed certain treatment programs aimed at anger management while incarcerated but no programs with respect to substance abuse.

i) There is reason for optimism that if Mr. Hood receives the treatment and monitoring recommended by Dr. Pearce he will not re-offend.

[146] I had initially some concern about Dr. Pearce’s opinion that there are “several reasons for optimism” that Mr. Hood will be manageable in the community upon the expiry of a LTSO and his evidence that it is hard to say that Mr. Hood “definitely will be manageable in the community” and that there is “a reasonable possibility” that Mr. Hood will be manageable assuming Mr. Hood complies with the recommendations in his report. He used different language in an effort to answer my question about how I should interpret his phrase “reasons for optimism”.

[147] I am required to impose an indeterminate sentence pursuant to s. 753(4.1) unless there is a “reasonable expectation that a lesser measure…will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.” In considering the language used by Dr. Pearce, clearly I do not need to conclude that there is no chance that Mr. Hood would be manageable in the community. I appreciate that Dr. Pearce would not be able to give a definite opinion one way or the other. His language of “reasonable possibility” is of concern as that suggests a lower threshold than required. Considered, however, in the context of all of his evidence I find that in the substance of Dr. Pearce’s opinion there is a reasonable expectation that a lesser measure as recommended by Dr. Pearce will adequately protect the public against the commission by Mr. Hood of murder or a serious personal injury offence. In this regard I also rely on the fact that Mr. Hood has not offended in the past three years and his potential as evidenced by his reference letters.

[148] Having determined that a LTSO is appropriate then it requires a minimum two year custodial sentence in accordance with s. 753.1(3)(a). Mr. Fried provided a number of cases in support of his position that the sentence should be three to four years. He relied primarily on the case of R. v. Deperry, [2004] O.J. No. 5483. In that case the offender Deperry and an accomplice had assaulted another inmate at the correctional facility where they were serving sentences; in the case of Deperry for assault causing serious injuries. Although the injuries in that case were more serious, the offender’s criminal record was similar to Mr. Hood’s; namely numerous convictions for crimes of violence. The court noted that previous jail sentences seemed to have had little impact on the offender’s behaviour and that he continued to menace others with little regard for the consequences of his behaviour. The offender was sentenced to three years. Unlike the case at bar there was no gap in the violent behavior but on the other hand, neither was any expert evidence given as to the likelihood to re-offend violently.

[149] In R. v. Nelson, [2006] B.C.J. No. 662, the offender had a minor record for violence but serious injury had occurred. The assault, a spontaneous attack and a beating that continued over several minutes, took place in a jail cell in full view of corrections officers via surveillance cameras and numerous witnesses. At para. 6 the court commented that the location of the offence was aggravating because of the need to generally deter others from committing acts of violence in a jail where inmates are vulnerable and should expect that they will be safe from attack by other prisoners. The court sentenced the offender to three years in prison, notwithstanding his relative youth, his Aboriginal background and the disadvantages he suffered as a child.

[150] I note a consideration of the fact the assault occurred in a jail was a factor expressed by Justice Finnestad when she sentenced Mr. Hood on February 21, 2012 for his assault on an inmate in August 2010. She stated that the fact the assault occurred in a jail environment was an aggravating fact because:

Nobody is in jail because they want to be. … They are trapped there in with the men that they are behind bars with. And it is very important that we do such little as can to protect those people from others. And so it is very important to protect the vulnerable person who is trapped with others and it is very important that we send a message to inmates that violence while in custody will not be tolerated. It is a dangerous situation because it has the potential to breakout in a riot if everybody else gets involved.

[151] In R. v. Plain, [2008] O.J. No. 2188, the offence is similar in that the offender had made a “violent preemptive strike of the victim, also a prisoner” at para. 24. However, the injuries were far more serious as the complainant required emergency surgery for a depressed skull and continued to suffer the after effects of the attack. The offender had and extensive record including serious offences of assault with violence. Notwithstanding the offender’s Aboriginal status and his mental health issues he received a six year sentence.

[152] In R. v. E.J.S., [2005] B.C.J. No. 2032, the assault took place in a prison and began with the offender acting in self-defence. However, once the complainant was on the floor the assault continued. The injuries were similar to those of Mr. Tutton. The offender was sentenced to two years however, although like Mr. Hood he had taken steps towards rehabilitation, his criminal record was mostly for crimes not involving violence.

[153] Mr. Fried submitted with respect to the predicate offence Mr. Tutton did not have a criminal record for violence and he was lucky he was not more badly injured. He also relied on the fact that Mr. Hood was “high-fiving” after the assault. Mr. Fried did agree however, that in the spectrum of things the aggravated assault in that case was at the lower end. He submitted that Mr. Hood should be given a penitentiary sentence. Denunciation and both general and specific deterrence are important factors in this case. In terms of rehabilitation Dr. Pearce has opined that he is a good candidate for rehabilitation and that he is genuine that he now wants to change. Mr. Fried however, suggested caution since Mr. Hood’s personality disorder is characterized by deceitfulness. Mr. Hood has for years breached court orders and lied to police. Furthermore, the second inmate assault that occurred in May 2011 was five months after Mr. Hood completed an anger management program. Mr. Fried agreed that Mr. Hood needs to deal with his alcohol problem but he pointed out that Mr. Hood was not impaired by alcohol when he assaulted either Mr. Tutton or the other inmate. He submitted that if Mr. Hood is willing to act out in a jail where there are constraints with guards and other security considerations then I should ask myself how Mr. Hood could be expected to act in the community.

[154] Mr. MacGregor agreed with the law as to available sentences provided by Mr. Fried. He said he was shocked to see that Mr. Hood had been convicted for an aggravated assault on the facts of this case. It is his position that this was not a serious assault given there was only a breaking of the skin that was sutured. There were no long term injuries and no weapons. He submitted that Mr. Hood’s criminal record drives the sentence not the offence per se. He submitted that the step up principle applies and given his past violent offences he recognized that Mr. Hood needs a heavier penalty.

[155] In my view a sentence in the range of two and one half to three years is appropriate based on the cases relied upon by Mr. Fried and the mitigating and aggravating circumstances of this offence and Mr. Hood.

[156] The aggravating factors include the fact that Mr. Hood did not act in self defence, he attacked Mr. Tutton without provocation or at least any significant provocation, he used excessive force resulting serious injury to Mr. Tutton and, of course, his criminal record.

[157] Mr. Hood does not get the reduction in sentence associated with a guilty plea-his decision to plead not guilty is a neutral factor. However, Mr. Hood continues to minimize his role in the assault and the nature of the assault and seems to wonder why he was convicted. To my mind his conviction was obvious after any reasonably right thinking person watched the video of the assault. The circumstances of the assault, Mr. Hood’s criminal record and his lack of insight all suggest a need, were this just a conventional sentence, for a strong general and specific deterrent.

[158] By way of mitigating factors, there is some hope for rehabilitation give that Mr. Hood has not been involved in altercations for the past three years. He has strong family support and the reference letters speak very positively of him.

[159] Mr. Hood was sentenced to 15 months by Finnestad J., who presumably would have been aware of the charges for the assault on Mr. Tutton but there was no conviction yet. Justice Finnestad stated she would have sentenced Mr. Hood to a longer sentence were it not for the fact he still had three years to serve on the sentence imposed by Archibald J. I do not know what Finnestad J. would have otherwise imposed but three years would not have been unreasonable given the cases relied upon by Mr. Fried.

[160] Mr. MacGregor reviewed the impact of various sentences and his calculations were not challenged by Mr. Fried. Since I have determined a range of sentence is appropriate I could consider adjusting the sentence to impact on when, for example the LTSO would start and how long Mr. Hood would be in the gap between his SR date and Warrant Expiry date. Some evidence was directed to the question of the availability of programming in a federal institution as compared to the community. Ms. Rousell spoke of long waiting lists and priorities and whether or not, depending on the length of sentence Mr. Hood might have access to programs and time to complete them. She stated that in the community the waiting lists are shorter. On this basis Mr. MacGregor suggested that access to programming would be better in the community. I assume that is regardless of whether or not Mr. Hood is subject to SR terms or the terms of a LTSO. However, Mr. Hood has never been in a federal institution and Dr. Pearce believed that there might be programs there that would assist him. In the end I found all of this evidence somewhat inconclusive and not a reliable factor that should impact on what I would otherwise consider an appropriate sentence for the predicate offence.

[161] In my view, for these reasons, a sentence of an additional two and one half years imprisonment is appropriate.

[162] I turn then to the length of the LTSO. In Dr. Pearce’s opinion the longer an individual who has treatment needs can be supported and supervised the better the outcome at the end of the period. It provides for effectively continued compliance confirmation and support. Dr. Pearce testified that ten years is the longest period of time but also achieves the best reduction at the end of the expiry of the order.

[163] I recognize that the length of the LTSO impacts on Mr. Hood’s liberty and the degree will depend on the terms imposed. However, a LTSO can include Mr. Hood being housed in a controlled environment. There is mandatory programming and there is risk control including re-incarceration. It can include testing to confirm whether or not he is complying with any drug or alcohol prohibition. Dr. Pearce agreed that it would help motivate Mr. Hood to participate in treatment programs if he is given a degree of freedom associated with a diminishing of restrictions. This can be accomplished in a ten year LTSO. Dr. Pearce testified that if the offender does well by year nine or ten they may be reporting once every three months or something like that which would not be onerous.

[164] The success of the treatment plan recommended by Dr. Pearce depends on the full cooperation by Mr. Hood. Although I am not satisfied that he is fully committed to the need for treatment and supervision, Mr. Hood is an intelligent man. Given the support evidenced in his references, if he takes this seriously I expect that Mr. Hood will earn the relaxing of certain conditions while retaining the support he needs to succeed. I therefore will accept the opinion of Dr. Pearce that the period of supervision should be ten years Although I have no jurisdiction to set any of the terms of that supervision, I trust the Parole Board will have regard to the recommendations of Dr. Pearce as they have already done, to ensure the safety of the public and the rehabilitation of Mr. Hood.

[165] I realize that a designation as a dangerous offender is not something that either Mr. Hood or his family and friends want. In my view however, it is important for Mr. Hood to realize that without assistance, treatment and monitoring he is likely to resume his former habits and re-offend violently. Given his intelligence which he can use for his advancement when he is so inclined, and given the support Mr. Hood enjoys I share Dr. Pearce’s optimism that if he truly applies himself to the treatment program, including taking the anti-alcohol medication he discussed with Dr. Pearce and complies with all of the conditions imposed upon him, that he will come out of this process still a relatively young man who can turn over a new leaf, live a productive life and be a positive role model to his children. I sincerely hope so for his sake and the sake of his family.

Final Disposition

[166] Mr. Hood would you please stand up.

[167] For the reasons I have given, I find you to be a dangerous offender pursuant to s. 753 (1) (a) *() and (ii) of the Criminal Code.

[168] For your conviction of aggravated assault I sentence you to two and one half years imprisonment to be followed by a ten year LTSO.

[169] There will be a mandatory weapons prohibition order pursuant to section 109 of the Criminal Code for life.

[170] There will be a DNA order in Form 5.03 pursuant to section 487.051(1) authorizing the taking of a DNA sample.

SPIES J.

Released: June 26, 2014

Edited Reasons Released: July 2, 2014

DATE: 20140626

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

BRYAN HOOD

REASONS FOR SENTENCE ON DANGEROUS OFFENDER APPLICATION

SPIES J.

Released: June 26, 2014