ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-11-70000726-0000
DATE: 20140818

BETWEEN:

HER MAJESTY THE QUEEN
Applicant

– and –

JEREMY NORMAN
Respondent

Christine Jenkins, for the Crown

Jonathan Shime and Amanda Ross, for the Respondent

HEARD: July 22, 2014

R. F. GOLDSTEIN J.

BACKGROUND

1On September 29, 2010 Mr. Norman attacked a woman as she was walking up the front steps to her home. They did not know each other. It was a random, unprovoked attack. The woman suffered significant injuries. Some neighbours intervened and stopped the attack. Mr. Norman was restrained by the neighbours until the police arrived.

2At the time of the attack Mr. Norman was on parole. In 2003, he attacked and killed his drug dealer. He was under the influence of drugs and alcohol at the time. In 2005, he pleaded guilty to manslaughter before Watt J. (as he then was). Watt J. sentenced Mr. Norman to eight years in custody in light of 4 years of pre-sentence custody: R. v. Norman, [2005] O.J. No. 1073 (Sup.Ct.). Mr. Norman was released on day parole between 2008 and 2010. At the time of the September 29, 2010 attack he was on full parole and living with his mother. He was subject to conditions. He was required to abstain from drugs and alcohol and not enter any businesses where the primary source of revenue was from sales of alcohol. He was under the influence of alcohol and drugs at the time of the attack, in violation of his parole conditions.

3Mr. Norman was charged with assault causing bodily harm as a result of the September 2010 attack. He received bail. He remained in custody, however, as his parole was revoked. Eventually his sentence on the manslaughter charge expired and he was released in January 2013. He was re-arrested just over a month later, on February 21, 2013, and charged with failing to comply with his recognizance. He has been in custody since. On March 14, 2014 Mr. Norman pleaded guilty before me to assault causing bodily harm. He has not yet been sentenced. The Crown wishes to have Mr. Norman designated as a dangerous offender or a long-term offender.

4A court may not designate someone to be a dangerous offender or a long-term offender unless there has first been an assessment. The Crown applies to take this first step, and order an assessment. Ms. Jenkins, for the Crown, says that there are reasonable grounds to believe that Mr. Norman might be found to be a dangerous offender or long-term offender.

5Mr. Norman’s counsel, Mr. Shime, argues that the Crown has failed to show that Mr. Norman has engaged in a pattern of repetitive behaviour or a pattern of persistent behaviour such that there is a likelihood that he will cause death or injury to others. This is because he is a 41-year old offender with only two convictions for crimes of violence.

6I respectfully disagree. Mr. Norman’s behaviour meets the low threshold for ordering an assessment. For the reasons that follow I find that the Crown has met its onus and an assessment will be ordered.

ANALYSIS:

7Prior to being declared a dangerous offender or a long-term offender the Court must, on application by the Crown, order an assessment: s. 752.1 of the Criminal Code.

8A person may be found to be a dangerous offender if the Court is satisfied that the offender has been convicted of a serious personal injury offence and that the offender constitutes a threat to the life, safety, physical or mental well-being of other persons, on the basis of evidence establishing:

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

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

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

See: Section 753(1)(a) of the Criminal Code.

9The Crown relies principally on the first or second paragraphs. Having reviewed the evidence, I think that Mr. Norman’s behaviour may be caught primarily by the first.

10At this stage, the Crown must show only that there are reasonable grounds to believe that the offender might be found to be a dangerous offender under s. 753 or a long-term offender under s. 753.1 of the Criminal Code.

11Mr. Shime concedes that the offence of assault causing bodily harm is a predicate offence. As a result, the only real issue here is whether there are reasonable grounds to believe that Mr. Norman might be found to be a dangerous offender or a long-term offender. In order to do that, there must be evidence that Mr. Norman has engaged in the behaviour set out above. If there is, then the court has no discretion: s. 752.1 directs that the court “shall” make an order for an assessment.

12The threshold is low. In R. v. McArthur, [1997] O.J. No. 5146 (Gen.Div.) LaForme J. (as he then was) described it this way at para. 20:

It is my opinion that on an application brought pursuant to s. 752.1 the only onus and burden of persuasion on the Crown is to satisfy the court that there are reasonable grounds to believe that the offender might be a dangerous offender. In other words, the question the court must answer is based on the circumstances and evidence, is it a logical conclusion that there is a possibility the offender might be found to be a dangerous offender? Moreover, as the test for an assessment does not involve any finding of fact that the offender is, at this stage, a dangerous offender, the onus on the Crown is not that which is expressed in either the criminal or civil standards of proof. Rather, in my view, it is simply this: is the court satisfied, after weighing and balancing all the relevant considerations, including the evidence, that the offender should be remanded for observation?

See also: R. v. Vincent, [2002] O.J. No. 5623 (Sup.Ct.). In R. v. Naess, [2005] O.J. No. 936 (Sup.Ct.) Hill J. reviewed the cases, and adopted the following language at para. 77:

I am inclined to the view that s. 752.1(1) obliges the court, on the totality of the circumstances, to determine whether reasonable grounds exist, in the sense of a real possibility the accused will be found to be a dangerous offender. As minimal as the standard is, it is something more than simply any possibility or a remote prospect only. The intrusion of the assessment frequently with prolonged custody, and its availability to the Crown in sentencing (s. 752.1(2)), demands nothing less.

13In R. v. P.H., [2005] O.J. No. 5698 (Sup.Ct.) Nordheimer J. referred to the gate-keeping function of the court. He noted the potentially draconian consequences to a person found to be a dangerous offender or a long-term offender.

14I agree with Nordheimer J. that the court must exercise a gatekeeper function. The court must always bear in mind that it has a responsibility to safeguard the rights of every individual before it, no matter how brutal the crimes that they have committed. It is particularly important that the court exercise this gatekeeper function when the crime has been a violent one, when the passions of the community are inflamed. I further agree with Nordheimer J. that the court must guard against the possibility that the bar is set so low that any person with a prior violent criminal record could be subject to a dangerous offender or long-term offender application. In this respect, I think that Mr. Shime was correct to point out that a court should not simply say “why not?” when asked to order an assessment.

15On the other hand, the court also has a critical responsibility to protect citizens. It must be remembered at this point that the offender has been convicted of a predicate violent offence. Although all the rights of an offender under our law apply, the presumption of innocence no longer does. In these circumstances, the gatekeeper function is something of a balancing act.

16I turn now to the evidence. The Crown has filed a volume of materials. Some of these materials are undoubtedly not controversial. For example, Justice Watt’s extensive reasons for sentence on the manslaughter case form part of the public record. The agreed statement of facts that was filed before me is also properly part of the record. The National Parole Board’s decision to revoke Mr. Norman’s statutory release is also unobjectionable. The Crown has, however, filed several institutional progress reports and psychological assessments. Some of these reports refer to charges upon which Mr. Norman was never convicted. Let me be clear that these acquittals or withdrawals play no role in my evaluation of the evidence. As Mr. Shime correctly points out, these are, in effect, expert reports that do not meet the criteria set out for the admission of expert evidence: R. v. Mohan, [1994] 2 S.C.R. 9.

17That said, given that the test is one of “reasonable grounds”. Given that what I am asked to do, in effect, is to order an expert report, it strikes me that hearsay is admissible at this stage of the proceeding. Furthermore, there is nothing in the legislation to suggest that an expert is required: it would not make sense that an expert report is required to evaluate whether an expert report is required.

18Mr. Shime did not seriously contest the admissibility of the Crown materials. His comments seem to be directed to their weight. I agree with that approach. Having read the material, I find that it is useful as narrative history but provides little predictive value. For example, the general tenor of the assessment reports prior to the September 2010 attack was that Mr. Norman was evaluated as a low risk to re-offend. The general tenor afterwards was that he was at a high risk. Some of these materials contain references to offences that Mr. Norman was charged with but never convicted of as I have already mentioned. In fairness, Ms. Jenkins did not seek to introduce these reports for the truth of their contents but rather to simply set out the history.

19Does Mr. Norman’s behaviour meet the criteria set out in paragraphs (i) or (ii) of s. 753(1)(a) of the Criminal Code? Taking paragraph (i) first, I would break down the test such that the evidence must show:

• A pattern of repetitive behaviour;
• A failure to restrain his or her behaviour; and,
• A likelihood of causing death or injury or severe psychological damage through failure in the future to restrain him or herself.

20I would break down the test in paragraph (ii) such that the evidence must show:

• A pattern of persistent aggressive behaviour;
• Showing a substantial degree of indifference on the part of the offender;
• With respect to the foreseeable consequences to other people of his or her behaviour.

21Without delving too much into amateur psychology, these sections appear to capture two kinds of people: those prone to violent and dangerous outbursts, and those without empathy. Obviously these paragraphs are not mutually exclusive. As well, although I have broken down the tests for ease of reference, the section requires evaluation of the totality of the circumstances at this stage. Each element does not require a “tick in the box”.

22What constitutes a “pattern of repetitive behaviour?” The pattern of repetitive behaviour, including the predicate offence, must contain “enough of the same unrestrained elements of dangerous conduct” to predict that the offender will likely re-offend in the same way in the future. The offences do not, however, need to be the same in every detail: R. v. Hogg, 2011 ONCA 840, [2011] O.J. No. 5963, 287 O.A.C. 82 (C.A.) at para. 40.

23In R. v. Dow, 1999 BCCA 177, [1999] B.C.J. No. 569, 134 C.C.C. (3d) 323 (B.C.C.A.) the court stated at paras. 24-25:

In short, the significance and the relevance of common elements of the pattern must be determined by whether they tend to show first, repetitive behaviour, second, that there has been a failure in each case to restrain the behaviour, and third, that there has been injury to other persons arising from that failure. If any of those three elements is missing, then there may be a pattern but it will not be a relevant pattern. But if all three are present then the essential elements of a relevant pattern are revealed.

I add that it is the very essence of a pattern that there be a number of significant relevant similarities between each example of the pattern that is being considered, but that, at the same time, there may be differences between each example, some of them quite distinctive, so long as the differences leave the key significant relevant elements of the pattern in place…

24In my view, there is evidence that there are “significant relevant similarities” between the offences:

• The two assaults were unprovoked and spontaneous;
• Mr. Norman was under the influence of alcohol and/or drugs when he committed both offences;
• Both assaults involved brutal violence and indifference to the consequences to the victims.

25It is the unprovoked, spontaneous character of the assaults when combined with drugs and alcohol that give rise to the striking similarity. To me, this is the key factor. I find that Mr. Norman might be found to be a dangerous offender or long-term offender based on the behaviour described in s. 753(1)(a)(i).

26I acknowledge that there are also differences between the two assaults. Mr. Norman knew the first victim, but not the second, for example. As well, I agree with Mr. Shime that there are real questions about whether Mr. Norman can be designated as a dangerous offender or a long-term offender under these circumstances given that he has been convicted of only two violent offences. If the Crown chooses to pursue the dangerous offender and long-term offender designations after the assessment, these will be a significant area of concern for the Court. That said, Mr. Norman has spent much of the time since 2003 in custody. He committed the second violent offence during his short time out of custody and while on parole, which I find troubling. See R. v. Jones, [1993] O.J. No. 1321, 63 O.A.C. 317 (C.A.). Ultimately, I need not answer this question at this stage. As noted, this is a question to be answered on a dangerous offender or long-term offender hearing, if one is held.

DISPOSITION

27There will be an order under s. 752.1 of the Criminal Code.

R. F. GOLDSTEIN J.

Released: August 18, 2014

COURT FILE NO.: CR-11-70000726-0000
DATE: 20140818

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN
Applicant

– and –

JEREMY NORMAN
Respondent

REASONS FOR JUDGMENT on application under S. 752.1(1) of the criminal code

R. F. Goldstein J.

Released: August 18, 2014