R. v. J.N., 2015 ONSC 2735

CITATION: R. v. J.N., 2015 ONSC 2735

COURT FILE NO.: 2011-7-726

DATE: 20150429

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Plaintiff

– and –

J.N.

Defendant

COUNSEL:

Christine Jenkins, for the Crown

Jonathan Shime and Amanda Ross, for J.N.

HEARD: April 8, 9, & 10, 2015

R.F. GOLDSTEIN J.

[1] On September 29, 2010 Mr. J.N. brutally attacked a woman he did not know. In March 2014 he pleaded guilty before me to assault causing bodily harm for this attack. Mr. J.N. was on parole when attacked this woman. In 2003 Mr. J.N. killed his drug dealer. In 2005 he pleaded guilty to manslaughter and received a sentence of 8 years in addition to two years of pre-trial custody for a total of 12 years. The Crown says that I should sentence Mr. J.N. to three years and declare him a long-term offender.

[2] Thus, there are two questions before me: what is the appropriate sentence for the assault causing bodily harm? And should the Court impose a long-term supervision order?

[3] On sentencing, Crown and defence are in agreement that the appropriate penalty is in the range of 2-3 years in the penitentiary. They disagree as to whether a long-term supervision order is appropriate.

[4] The correct procedure where there is a dangerous offender or long-term offender application is to impose the appropriate length of sentence for the predicate offence and then consider whether a long-term supervision order should be made. A distinction must be made between the two hearings: R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163.

[5] For the reasons that follow, I find that the appropriate sentence for the assault bodily harm is 3 ½ years followed by three years of probation. I find that the portion of s. 719(3.1) of the Criminal Code denying enhanced credit is unconstitutional, as I will set out in a companion ruling. Mr. J.N. is therefore credited with pretrial custody of just slightly less than the rate of 1.5:1.

[6] Thus, I sentence Mr. J.N. to a further six months incarceration, followed by three years of probation. The long-term offender application is dismissed. I turn first to the sentencing in relation to the 2010 assault bodily harm.

A. SENTENCING FOR THE 2010 OFFENCE

1. FACTS

(a) Circumstances of the Offence

[7] At approximately 10:30 pm on September 20, 2010 Frances Dean was walking home. She was walking up the steps into her home. Mr. J.N. approached her from bottom of the steps, grabbed her with both hands, and began to punch her in the head and in the face. She was struck numerous times. The attack was completely unprovoked. Ms. Dean and Mr. J.N. were strangers. The agreed statement of facts indicated that Mr. J.N. is 6’5” and weighed 230 pounds at the time of the assault. By any measure, Mr. J.N. is a very large man. Ms. Dean, in contrast, is 5’3” and weighs 123 pounds.

[8] Ms. Dean began to yell and scream for help. Neighbours intervened. The neighbours chased Mr. J.N. down the street. The neighbours apprehended Mr. J.N. and held him until the police arrived. The police found him staggering, with slow speech, and disoriented. He had trouble breathing. The police took him to the hospital. He was given blood tests. He had alcohol and cocaine in his blood.

(b) Circumstances of the offender

[9] I will obviously have more to say about Mr. J.N. when I deal with the question of whether a long-term supervision order should be made.

[10] At the time of this offence Mr. J.N. was 37. He was on parole for manslaughter. He was subject to parole conditions that he not consume alcohol or drugs. He obviously did not comply with those conditions. Mr. J.N. is now 41 years old.

[11] Mr. J.N. has a criminal record both as a youth and as an adult. His youth record includes convictions in 1989 and 1990 for break and enter and theft; theft under; mischief over; mischief under; escape lawful custody; fail to appear. He was also convicted of assault in 1989.

[12] In 2003 Mr. J.N. killed Andy Banh, a drug dealer. Mr J.N. purchased drugs from Mr. Banh, and, on occasion, sold drugs. On January 17, 2005 Mr. J.N. as sentenced to 8 years in the penitentiary. He spent two years in pre-trial custody, credited at 2 for 1, which was available at the time. He was thus given credit for four years, which amounted to a 12-year sentence. Mr. J.N. other adult conviction is the assault causing bodily harm to Ms. Dean.

[13] Mr. J.N. has the support of his parents and at least one former partner. He has usually been able to hold a job as a skilled tradesman in the film industry. In fact, he testified that he will have a job when he is released from custody, as he has kept up all of his qualifications and his membership in his union.

(c) Impact on the victim and the community

[14] There is no question that this assault had a serious impact on the victim, Ms. Dean. She suffered significant physical injuries. She had a black eye, swollen face, headaches, and double vision. She provided a victim impact statement. She has suffered significant emotional trauma as a result of these offences. She is now uncomfortable walking home from work at night and she is mistrustful of men. She has moved from her previous neighbourhood. Understandably, she has been robbed of her sense of safety and security.

[15] Violent attacks on strangers, such as this one, are thankfully rare. Unfortunately, when they do happen they rob the community, as well as the victim, of a sense of safety and security. People, and especially vulnerable people, curtail their daily activities. The fear of random attack lessens the enjoyment of daily life that all citizens are entitled to. This kind of attack generates effects beyond those suffered by the immediate victim.

2. POSITIONS OF THE CROWN AND DEFENCE

[16] For all intents and purposes, Crown counsel and defence are in agreement that a sentence in the range of 2-3 years is appropriate. The real question is whether Mr. J.N. is entitled to enhanced credit. In my view, for the reasons I set out below, this range is low. I do find, however, that Mr. J.N. is entitled to enhanced credit.

3. MITIGATING AND AGGRAVATING FACTORS

[17] There are many aggravating factors in this case. Mr. J.N. has already served a sentence for one serious offence, manslaughter. The circumstances of this current offence are also troubling. Fuelled, once again, by drugs and alcohol he attacked a woman at random.

[18] Mr. J.N. youth record is far enough in the past that it has only a very minor impact as an aggravating factor.

[19] The most important mitigating factor is Mr. J.N. guilty plea. Although there were comments in the Dr. McMaster’s report about Mr. J.N. lack of remorse, I find that he is remorseful. I have now had the opportunity to see him testify on more than one occasion and I believe his remorse is sincere, albeit tempered by impression management, as I will relate below.

4. PRINCIPLES OF SENTENCING

[20] The principles of sentencing that are applicable are set out at s. 718, 718.1, and 718.2 of the Criminal Code. The fundamental principle is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. In this particular case, given Mr. J.N. history, I pay particular attention to the principles of denunciation, specific deterrence, and rehabilitation.

5. ANCILLARY ORDERS

[21] Since assault causing bodily harm is a primary designated offence, there will be an order that a sample of Mr. J.N. DNA is to be taken pursuant to s. 487.051 of the Criminal Code. Mr. J.N. will also be subject to a s. 109 prohibition order for life.

6. DECISION AND CONDITIONS OF PROBATION

[22] In my view, a sentence of 3 ½ years is what would ordinarily be required in this case. I reject the submissions of both counsel that a sentence in the range of 2-3 years is the appropriate range. In my view, a sentence in the range of 3 to 4 years would be more appropriate. I acknowledge that there are very few cases of offenders who are similarly situated to Mr. J.N.. I point out that this was an assault causing bodily harm that was much closer to an aggravated assault. Without the intervention of neighbours I fear that Ms. Dean, the victim, might well have suffered more serious injuries or even been killed.

[23] I am aware that in the provincial reformatory system Mr. J.N. will get less of the treatment that he needs than he would if he were in the federal system. That is true, but the Court must denounce in the strongest terms an offender who carries out a random attack on a stranger while on parole for killing his drug dealer. Specific deterrence is also required. Mr. J.N. says that he will no longer take alcohol or drugs because drugs could kill him due to his heart condition. Maybe. That may be what a doctor told him, but there is no expert evidence to back that up in this court. I accept that Mr. J.N. is sincere about that. In any event, however, even if it is true that Mr. J.N. means it people with substance abuse problems can and do find all kinds rationalizations for their drug and alcohol use. Indeed, many substance abusers continue to use knowing full well that the consequences will be disastrous. Furthermore, Mr. J.N., who was not young or naïve, deliberately drank and used cocaine. Alcohol and drugs seem to be the catalyst for his violent behaviour. He knows that, and he made a terrible choice. The good news, if it can be called that, is that Mr. J.N. recognizes how terrible indeed was the choice he made. In truth, not only is Ms. Dean lucky that the neighbours intervened – Mr. J.N. is also lucky that the assault did not progress further. The one thing I am certain of is that Mr. J.N. detests being in jail. That is why a measure of specific deterrence is required in the circumstances of this case.

[24] Is Mr. J.N. entitled to enhanced credit? Surprisingly, he received bail on the assault causing bodily harm charge. His statutory release on the manslaughter charge was revoked, however, and he stayed in custody until his warrant expiry date. He remained on bail until he was arrested for breaching his conditions only a month or so later. His bail was cancelled pursuant to s. 524 of the Criminal Code.

[25] Mr. J.N. is entitled to enhanced credit. He gave un-contradicted evidence that his medical problems, rather than institutional misconduct, have caused him to be kept in solitary confinement simply because beds were unavailable in hospital ranges. Furthermore, Mr. J.N. has had three heart attacks in custody, an unusual situation for a man of his age. I accept his evidence about the conditions of his confinement.

[26] Mr. J.N. was arrested for breaching his bail conditions on February 21, 2013. On November 1, 2013 he was convicted of fail to comply with probation. He was sentenced to 45 days in custody. As a result, from February 21, 2013 to April 17, 2015 Mr. J.N. has spent 2 years and 2 months in custody, of which 2 years and 15 days is attributable to the assault causing bodily harm charge. At the ratio of 1.5:1 he is entitled to just over three years of credit. Since, as I said, the appropriate sentence is 3 ½ years, I will consider the credit as just slightly less than 1.5:1 and sentence him to a further six months in custody.

[27] The length of the long-term supervision order, if there is to be one, cannot be taken into account in determining the offender’s period of incarceration: L.M. at para. 49. As I will explain, the long-term offender application is dismissed so the issue does not arise.

[28] As Mr. Shime fairly acknowledges, conditions of probation are required here. I agree. There is no question that it would be irresponsible to release Mr. J.N. without stringent conditions. Accordingly, the following compulsory conditions of probation are imposed pursuant to s. 732.1(2) of the Criminal Code:

• Mr. J.N. will keep the peace and be of good behaviour;

• Mr. J.N. will live at an address approved of by his probation officer and will notify his probation officer of any change in address at least 48 hours prior to moving;

• Mr. J.N. will notify his probation officer of any change of employment or occupation;

• Have no contact with Frances Dean or the two individuals who chased him down and held him for police after the assault;

• Pursuant to s. 732.1(2)(b) of the Criminal Code, Mr. J.N. will be required to appear before me from time to time. I wish to monitor his progress. When I finish reading these reasons I will canvass a date for Mr. J.N. next appearance.

[29] I impose the following conditions of probation pursuant to s. 732.1(3) of the Criminal Code on Mr. J.N.:

• Report to a probation officer within two working days of release and thereafter as required by the probation officer;

• Remain within the province of Ontario unless he receives prior written permission from the probation officer;

• Abstain absolutely from the consumption of alcohol;

• Abstain absolutely from the consumption of non-medically prescribed drugs;

• Abstain from owning, possessing, or carrying a weapon except a carpenter’s knife for the purposes of employment while employed;

• Seek and maintain employment or attend an educational or training program;

• Take treatment for substance abuse, either in an outpatient program or at a residential facility, as approved by the probation officer;

• Take individual or group counselling or therapy as approved by the probation officer.

[30] I specifically impose the following conditions pursuant to s. 732.1(3)(h) of the Criminal Code:

• Mr. J.N. will not be in the presence of anyone known to him to have in his or her possession any non-medically prescribed drugs; and

• Mr. J.N. will be subject to a curfew for the first year of his probation under times and conditions as set out by the probation officer. Thereafter his curfew may be modified or deleted by the probation officer as he or she sees fit.

B. THE LONG TERM OFFENDER APPLICATION

[31] I turn now to the long-term offender application.

1. MR. NORMAN’S PERSONAL AND CRIMINAL HISTORY

[32] Mr. J.N. appears to have had a reasonably normal childhood with supportive and involved parents. He had some academic difficulties. His parents are separated but they remain supportive. I have observed that they have been present throughout the application and they are obviously very concerned about his welfare. He has a brother who has been financially successful in life. Mr. J.N. described himself to Dr. McMaster, the forensic psychiatrist who conducted the court-ordered assessment, as not fitting in and struggling with not being well-liked. He said that he had “sociability issues.” His parents confirmed that he has always had that difficulty. He described being the victim of bullying in school and says that he continues to be bullied while in custody.

[33] Mr. J.N. was diagnosed with a learning disability at a young age. He was also diagnosed with attention deficit/hyperactivity disorder. He was an indifferent student. Tests apparently revealed that there was a significant gap between his potential and his achievement. His parents reported to Dr. McMaster that he did not want to be associated with the learning disabled class.

[34] Mr. J.N. definitely had some difficulty navigating his teen years. He was sometimes truant from school. He became involved in petty criminality, including theft and mischief. He accumulated a youth court record. He spent time in open custody. He did, however, graduate from high school (during which he took classes while in custody) notwithstanding an occasional suspension, time in open custody, and spells of dropping out.

[35] There were indications that by his late teens or early twenties Mr. J.N. had straightened himself out. He had a job as a technician in the film industry. He was making decent amounts of money. He became a member (and is currently still a member) of the International Alliance of Theatrical Stage Employees union. He testified, and told Dr. McMaster, that he could have a job as soon as he was released. He also told Dr. McMaster that he has always had a job. He testified to that as well.

[36] Mr. J.N. spent his twenties working and partying. He had several relationships with women. He used and occasionally sold cocaine. At the time of the manslaughter in in 2003 Mr. J.N. was living in a common law relationship with Jennifer Archer. She was working as a stripper and used heroin.

[37] On January 13, 2003 Mr. J.N. killed Andy Banh. He pleaded guilty to manslaughter on January 17, 2005 before Justice Watt, then of this Court. In R. v. J.N., [2005] O.J. No. 1073 (Sup.Ct.) at para. 109 Watt J. described the killing this way:

The unlawful killing of Andy Banh involved the infliction of gratuitous and excessive violence. More than four dozen sharp force injuries to the face, neck, torso and extremities including defensive wounds to the arms and hands. Further, there was blunt force trauma to the right arm and mouth of the deceased.

[38] The killing arose out of an argument between Mr. J.N. and Mr. Banh over drugs. Mr. J.N. was using cocaine at the time. He fled but subsequently turned himself in to police.

[39] While in custody Mr. J.N. did not commit any disciplinary offences. He took counselling and completed the national substance abuse program. He was aware, and continues to be aware, that substance abuse fuels his violence. He took some of the same psychiatric tests that were administered for this assessment, including the PCL-R and the VRAG. The PCL-R is the Pscyhopathy Checklist-Revised. It measures the presence of psychopathy in individuals. The VRAG is the Violence Risk Appraisal Guide. It measures the actuarial risk of violent recidivism. Some of these tests are related.

[40] Mr. J.N. was scored on the PCL-R and the VRAG while at Fenbrook Institution in September 2007. He was assessed low on the list of traits associated with psychopathy, in the 3d percentile. On the VRAG, he was scored as a 12% chance of re-offending within 7 years. Overall, he was assessed as a low to moderate risk for general recidivism and a low risk for violent recidivism.

[41] Mr. J.N. was released on day parole on January 21, 2008. He lived in various community residential facilities. He had some difficulties with Correctional Services of Canada due to a perceived lack of transparency about his activities and a perceived negative attitude on his part. There were also questions about the transparency of his relationships with women. His release was suspended on October 6, 2008 but the National Parole Board cancelled the suspension. He was released again on day parole to a community residential facility on January 15, 2009. He found a job shortly after that. While on parole he was subject to special conditions, including conditions not to associate with certain women. He continued to have some difficulties about disclosing his relationships and his activities, at least as far as CSC was concerned. As a result, he continued to be denied full parole and be subject to conditions.

[42] Mr. J.N. also had difficulties regarding alleged sexual offences. He has been charged with, but not convicted of sexual offences. He believes that the CSC has unfairly treated him as a sexual offender. I note that Dr. McMaster does not appear to believe that Mr. J.N. is at high risk of committing a sexual offence, although he cannot rule it out completely.

[43] On May 19, 2010 Mr. J.N. was released on statutory release. He resided with his mother. He continued working. On September 29, 2010, while on statutory release, he committed the assault bodily harm offence on Ms. Dean. The police took him to Toronto East General Hospital on a Form 1 under the Mental Health Act. The discharge report confirmed that he had alcohol and cocaine in his system.

[44] Mr. J.N. inexplicably received bail on the assault causing bodily harm charge. He was not released, of course, as his statutory release was cancelled. He was released to the Keele Centre in June 2012, where he remained until his manslaughter sentence expired on January 16, 2013.

[45] On February 21, 2013, just over a month after his warrant expiry date, Mr. J.N. was arrested for breaching his conditions of bail. His bail was cancelled and he has remained in custody ever since. He was subsequently convicted of failure to comply with a recognizance and sentenced to 45 days in custody. That conviction is under appeal.

2. DR. MCMASTER’S OPINION

[46] On August 18, 2014 I ordered that Mr. J.N. be assessed pursuant to s. 752.1 of the Criminal Code. Dr. McMaster of the Center for Addiction and Mental Health carried out the assessment. He is a qualified forensic psychiatrist. His report was filed and he testified. He was qualified as an expert witness without objection from Mr. J.N. counsel. He was assisted in his assessment by another qualified psychiatrist, Dr. Choptiany. Dr. Choptiany is currently working to obtain a sub-specialist designation in forensic psychiatry under the supervision of Dr. McMaster.

(a) Overall Opinion and Diagnosis

[47] Dr. McMaster’s diagnosis was this:

• Mr. J.N. has a personality disorder with anti-social traits but anti-social personality disorder is ruled out;

• Substance abuse disorder;

• Learning disorder.

[48] Dr. McMaster ruled out attention-deficit hyperactivity disorder. He could not rule out paraphilia, but said that there was no firm evidence that Mr. J.N. suffers from a sexual deviation disorder that would heighten his risk for sexual violence. Dr. McMaster found that Mr. J.N. did not have a major mental illness. He found that Mr. J.N. is at a high risk for violent recidivism but that the risk could be controlled with the right conditions. He recommended a 10-year long-term supervision order.

(b) Dr. McMaster’s Risk Assessment

[49] Dr. McMaster’s composite assessment of risk, based on testing and his clinical diagnosis, was that there was a high risk of Mr. J.N. engaging in violence of some kind that will involve significant physical or psychological harm.

[50] Dr. Wright, a psychologist, conducted actuarial and clinical tests of Mr. J.N. based on file and collateral information. As I understand it he did not actually meet Mr. J.N.. Dr. McMaster used these tests to assess Mr. J.N. risk for violent recidivism. Dr. Choptiany also conducted these tests for educational purposes – that is, Dr. Choptiany’s own education. The tests are designed to be less subjective than clinical judgments. That said, there is still an element of subjectivity to the tests. Reasonable testers may come to different conclusions, based on the emphasis and weight given to the various factors. As well, risk factors change over time.

[51] As I have mentioned, the PCL-R is a measurement of psychopathy. On the PCL-R, Dr. Wright scored Mr. J.N. at 18 out of 40. That was higher than the score he received at Fenbrook. When Dr. Choptiany administered the test for his educational purposes he scored Mr. J.N. at 17. A person with a score of more than 30 is considered to have psychopathic tendencies. The general non-criminal population score is 7 points. Dr. McMaster agreed in cross-examination that there could be wide variation in scores: 95 out of 100 doctors would score Mr. J.N. between 12 and 24.

[52] The PCL-R is used as a component part of the VRAG, or Violence Risk Appraisal Guide. The VRAG is an actuarial tool. The raw score is used to place the offender in a “bin” of risk. The bin of risk indicates the risk of violent recidivism for offenders in that particular bin.

[53] When Dr. Wright administered the VRAG Mr. J.N.Mr. J.N. raw score was +7. That placed him in the 6th of 9 bins of risk. Of the individuals in that bin of risk, 44% violently reoffended within 7 years and 58% violently reoffended within 10 years. Dr. McMaster noted both in his report and in testimony that the recidivism in the VRAG includes offences of simple assault and threatening. Thus, the VRAG likely overestimates the risk of serious violence by Mr. J.N., although Dr. McMaster could not fully quantify it.

[54] In cross-examination Dr. McMaster was shown a VRAG administered by Dr. Choptiany for educational purposes. Dr. Choptiany scored Mr. J.N. as -7. That put Mr. J.N. in a much lower bin of risk.

[55] As Dr. McMaster noted, the VRAG contains subjective evaluations of some factors, which may explain why the same individual may score differently at different times and under different conditions. If Dr. Wright had scored just a few traits slightly differently, as Dr. Choptiany did, Mr. J.N. VRAG score might have been dramatically different, with a different risk assessment. Dr. McMaster was legitimately concerned that by using Dr. Choptiany’s scores the Court might be misled as to the proper use of these risk assessment tools. I accept his point, but I cannot ignore the wide variation in risk assessment. I note again that Mr. J.N. scored much lower at Fenbrook, although I am aware that the risk assessment can change over time and the subsequent tests took into account the 2010 offence. Dr. McMaster’s opinion in his report, based on the VRAG, was that Mr. J.N. was at a fairly high risk of violent recidivism. Mr. Shime suggested in cross-examination, and Dr. McMaster agreed, that his opinion should have been that Mr. J.N. was actually at a moderate to high risk of violent recidivism. In fairness, that aspect of the cross-examination became something of a debate about language.

[56] The HCR-20 is not an actuarial tool. It is a risk assessment and management tool. There are some disagreements among professionals as to the precise parameters of its use. Mr. J.N. scored 29 out of 40 points. According to Dr. McMaster, that score suggests a high risk of violent recidivism. When Dr. Choptiany administered the test for educational purposes Mr. J.N. scored 21 out of 40 points, which translates to a moderate risk of violent recidivism. I note that Dr. Choptiany changed his score in the draft report after discussion with Dr. McMaster. Again, I accept Dr. McMaster’s point that Dr. Choptiany administered the test for educational purposes and that it has limited value, but I cannot completely ignore it.

(c) Problematic Assertions

[57] Dr. McMaster made some assertions in his report that appear, in retrospect, to have gone slightly too far. For example, when Mr. J.N. was on parole he injured his back and was prescribed of opioids. Urinalysis indicated, however, that he had no opioids in his system. Given that Mr. J.N. had occasionally sold drugs in the past, Dr. McMaster stated that there was a possibility that he may have been diverting the prescriptions and selling them.

[58] Mr. J.N. testified that, in fact, he reported the prescriptions to his parole officer and was required to leave his medications at the Keele Community Centre. He also indicated that his parole officer told him that the company carrying out the urinalysis had made a mistake and that he had, in fact, tested positive. There was no record of this.

[59] Mr. Shime was critical of Dr. McMaster for not seeking out further information regarding the possibility of the diversion. I very respectfully disagree. Dr. McMaster had a significant amount of information to work with, and did ask for more information about this issue from the Crown. There was no further information. I realize that Mr. Shime’s office obtained the hospital and prescription records without difficulty, but it is not realistic to suppose that a forensic psychiatrist in Dr. McMaster’s position should investigate every collateral issue to that extent. Dr. McMaster was careful to couch his conclusion in the language of possibility, and simply indicate that it raised concerns.

[60] I am spending time discussing this collateral issue because it could have been very important. If it was true that Mr. J.N. was selling his prescription drugs I would have found that very, very troubling. I am satisfied that the evidence does not support that Mr. J.N. was selling prescriptions. I emphasize that this should not be construed as criticism of this aspect of Dr. McMaster’s opinion.

[61] Dr. McMaster also found that Mr. J.N. had poor insight into his behavior and was less remorseful than he seemed. He also concluded, based on the test scores and on Mr. J.N. tendency to downplay negatives, that he was engaging in impression management. Having seen Mr. J.N. testify, my own layman’s view is that Mr. J.N. certainly does engage in some degree of impression management. That is not entirely unexpected. It is not exactly uncommon in court. As Mr. J.N. surely knows, much hangs on the impression he made both with Dr. McMaster but also in court. I do not see how that makes Mr. J.N. particularly different from most other people who testify with much at stake. I do agree with Dr. McMaster that it has an impact on the risk assessment because there is some question about insight.

[62] That said, I do have some difficulties with Dr. McMaster’s view that Mr. J.N. lacks insight and is not remorseful. He has pleaded guilty, apologized, and expressed remorse. He has also indicated that he has some understanding that drugs and alcohol play a critical role in his violent behavior. If I were to take Mr. J.N. at his word, then Dr. McMaster is simply wrong. I do not, however, think he is wrong, based on Dr. McMaster’s view that Mr. J.N. engages in impression management – a view that is not without merit. I think, however, that it is a question of degree. Accordingly, I do not entirely discount this part of Dr. McMaster’s opinion. It has weight but I find that it goes further than is warranted by the evidence.

(d) Conclusions with regard to Dr. McMaster’s Opinion

[63] Overall, I find that Dr. McMaster’s assessment of the risk posed by Mr. J.N. is helpful and I give it significant weight. I do find, however, that the risk is overstated.

[64] I am not convinced that even though Dr. Choptiany was administering the various actuarial and clinical tests for educational opinions that his results are entirely invalid. All I know is that Dr. Wright is a psychologist and that Dr. Choptiany is a qualified psychiatrist doing a sub-specialty in forensic psychiatry. Neither testified. Dr. McMaster was confronted with Dr. Choptiany’s work in cross-examination and explained it as being for educational purposes. I accept that explanation, and I also accept Dr. McMaster’s warning that there is a potential for the wrong conclusions to be drawn, but it does have some impact on the weight to be given to Dr. McMaster’s opinion.

[65] I do not discount the predictive value of these risk management and actuarial tests, but they are clearly imperfect. They measure the actuarial risk of a given population, but they cannot say what any particular individual within that population will do. That was very graphically illustrated by the fact that Mr. J.N. was scored as a low risk to violently re-offend only three years before he carried out the assault on Ms. Dean.

[66] I do want to emphasize that I unhesitatingly accept Dr. McMaster’s expertise and skill, and that I found his testimony and his report to be very useful. I do not agree that he avoided answering questions or danced around the answers. I think the better explanation is that Dr. McMaster is well aware that psychiatry is not an exact science and that he wished to be cautious.

3. ANALYSIS

[67] The only issue to be determined on this application is whether the Crown has proven beyond a reasonable doubt that there is a substantial risk that Mr. J.N. will commit a violent offence: L.M. at para. 40.

[68] Section 753.1 of the Criminal Code states:

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

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

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

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

[69] Mr. Shime concedes that Mr. J.N. fits the criteria set out in s. 753.1(1)(a) and (c) of the Criminal Code. He disputes that there is a substantial risk that Mr. J.N. will reoffend.

[70] The net cast by s. 753.1(1) is potentially extremely wide. Anyone with even moderate experience as a judge, prosecutor, or defence lawyer will probably see offenders on a weekly or – in a busy courthouse – even a daily basis to whom the definition might apply.

[71] And yet, in L.M. LeBel J. stated: “I note the exceptional nature of the finding that an offender is a long-term offender. As I will explain below, the strictness and precision of the rules applicable to this supervisory mechanism necessarily limit the number of people to whom it will apply.”

[72] That is because it is not so much the magnitude of the net, but because of the extraordinary nature of the sanction: a person may be subject to the supervision of the Correctional Service of Canada for up to ten years:

[73]

753.1(3) If the court finds an offender to be a long-term offender, it shall

(a) 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

(b) order that the offender be subject to long-term supervision for a period that does not exceed 10 years.

[74] By reason of the operation of sections 134, 134.1, and 134.2 of the Corrections and Conditional Release Act, an offender is subject to conditions that are imposed by the National Parole Board, and to instructions from a delegate of the Board. The Board may set or cancel conditions. In other words, once an offender’s sentence has expired he or she is essentially on parole. Ordinarily, when an offender finishes serving a sentence he or she may simply go about their business like any other member of the public. Thus, an order of this nature is a drastic interference with the liberty of the subject. That is why LeBel J. called it “exceptional”. That is also why the Crown is required to prove beyond a reasonable doubt that there is a substantial risk – a very unusual formula.

[75] The overall sentencing objective in dealing with dangerous offenders and long-term offenders is the protection of the public. Where a person’s criminal past demonstrates that there is a real and present danger to life and limb a dangerous offender or long-term supervision order may be appropriate: R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357. The dangerous offender provisions are designed to deal with a very small group of offenders who require preventive detention in order to protect the public: R. v. Lyons, 1987 25 (SCC), [1987] 2 S.C.R. 309. Johnson dealt with the interplay between the long-term offender provisions and the dangerous offender provisions.

[76] In this case, a dangerous offender order is not on the table. Neither is the question of a sexual offence. The question here is the converse of the Johnson question. It is not whether the risk is reduced to the level that a long-term supervision order is required, which is very common in the cases. It is whether the risk rises to the level that a long-term supervision order is required. Cases of this nature are much less common. When the legislation speaks of a “substantial risk that the offender will reoffend”, what does that mean in this context, where the Crown has not applied for a dangerous offender designation and Mr. J.N. is not a sexual offender?

[77] In R. v. Szostak, 2014 ONCA 15, 118 O.R. (3d) 401 Rosenberg J.A. helpfully summarized the legislative history of the dangerous offender and long-term offender provisions. The summary helps to inform the principles to be applied by a sentencing judge. Briefly, dangerous offender legislation was introduced in 1947 for “habitual criminals”. The long-term offender provisions were introduced in 1997. They provided a measure of flexibility for a sentencing judge, who is no longer not forced to choose between an indeterminate sentence of incarceration and a sentence that might not be adequate. As this and other cases have pointed out, a trial judge has discretion as to whether or not to impose a long-term supervision order. That implies that the discretion must be exercised in accordance with the appropriate purposes and principles of the legislation. It also means that a trial judge is not required to declare anyone a long-term offender who meets the criteria.

[78] In R. v. M.B.H. (2004), 2004 14199 (ON CA), 70 O.R. (3d) 257, 186 C.C.C. (3d) 62 (C.A.) the offender had a long history of sexual offences against children. The trial judge found that the surrounding circumstances required that the conduct had to approach “the worst type of conduct imaginable”. The trial judge found that the facts surrounding the predicate offence were not serious enough to make a finding. The Court of Appeal found that this was an error, because there is no requirement that the facts surrounding the predicate offence must pass some kind of seriousness threshold. The Court allowed the appeal and imposed a long-term supervision order because the risk could be controlled.

[79] For some time there was a question as to whether the long-term offender provisions applied only to sexual offences. Subsection 753.1(2) defined what constituted a “substantial risk that the offender will re-offend” and set out mandatory conditions. A finding that there is a substantial risk of reoffending is mandatory where the requirements of s. 753.1(2) of the Criminal Code are met. Those requirements include a conviction for a sexual offence as set out in s. 753.1(2)(a).

[80] The Saskatchewan Court of Appeal considered the question in R. v. Weasel, 2003 SKCA 131, 181 C.C.C. (3d) 358. The Court pointed to the fact that a person can only be designated a dangerous offender or long-term offender after an assessment is ordered pursuant to s. 752.1(1) of the Criminal Code. The assessment can only be made where the offender is convicted of a serious personal injury offence or one of the sexual offences set out in s. 753.1(2)(a). Thus, s. 753.1(1) applies to any offender convicted of a serious personal injury offence. The Court then went on to say:

Based on the foregoing, we are of the opinion section 753.1 extends to an offender convicted of either a serious personal injury offence, as defined in section 752, or an offence referred to in paragraph 753.1(2)(a). That being so, subsection (2) is to not to be seen as defining the term "substantial risk" appearing in subsection 753.1. Rather, it is to be seen as creating a conclusive presumption of "substantial risk" in those circumstances to which paragraphs (a) and (b) of the subsection are addressed, leaving the issue of such risk in other circumstances to be determined without the aid of the presumption.

[81] That is helpful in determining what does not constitute a “substantial risk that the offender will reoffend” for a non-sexual offender. But what does?

[82] I found the case of R. v. Johnson, [2008] O.J. No. 4209 (Sup.Ct.) to be useful even though Johnson was a sexual offender. He was the so-called “Swansea Stalker” who attacked couples late at night. He stalked, robbed, assaulted, and sexually assaulted the victims. Dambrot J. found him guilty of several offences. The Crown applied to have Mr. Johnson declared a long-term offender. Dambrot J. considered the target of the long-term offender provisions at para. 54:

Long-term supervision is based on the assumption that there are identifiable classes of offenders for whom the risk of re-offending may be managed in the community with appropriate, focused supervision and intervention, including treatment. As a result, the long-term supervision net should not be cast too widely.

[83] Dambrot J. also considered a sentencing judge’s exercise of discretion under s. 753.1(1) at para. 84:

In exercising this discretion, a judge may properly consider whether, despite the fact that all of the prerequisites are met, finding a particular offender to be a long-term offender casts the net too widely, and captures an offender who falls outside the target group: offenders who pose a substantial risk of committing further violent or sexual crimes, but who offer a reasonable possibility of eventual control of that risk in the community.

[84] I respectfully adopt Dambrot J.’s description.

[85] As many cases have pointed out, past behavior is often the best predictor of future behavior. Mr. J.N. track record is not enviable. Based on all the evidence and applying the principles set out in the cases, I am not persuaded beyond a reasonable doubt that Mr. J.N. is at a substantial risk to commit a further violent crime. I am certainly persuaded that it is more likely than not that Mr. J.N. is at a substantial risk to commit a further violent crime. That, however, is not the test and it necessarily limits those who are caught in the long-term supervision net. The protection of the public, which is the paramount purpose of the dangerous offender and long-term offender regime, does not require a long-term supervision order in this case, tempting though it is to impose one. I say this for the following reasons:

• Mr. J.N. did not begin his career of serious violent crime until he was almost 30. He has had two convictions. I respectfully disagree with Mr. Shime that the number of convictions plays a role – even one will do, depending on the one.

• I give Dr. McMaster’s opinion great weight but I find that his opinion does not support the “beyond a reasonable doubt” standard.

• As Dr. McMaster pointed out, some of the drivers of Mr. J.N. violent behavior will burn out simply by reason of age.

• Mr. J.N. violence is fuelled by drugs and alcohol. I cannot say that I am confident that, as a result of his medical condition, he will not use drugs again, but it does leave me with a reasonable doubt about whether he is at substantial risk to commit another violent crime.

[86] Knowing that Mr. J.N. presents a risk makes it very tempting for a trial judge to say “what’s the harm?” and impose a long-term supervision order, particularly where the risk that Mr. J.N. will reoffend is not negligible. If I were to extend the net to Mr. J.N. that would put him in that very small group of offenders for whom it is intended. Mr. J.N. is close, but the evidence falls short of putting him there.

[87] I wish to conclude with one other observation: I am more than satisfied that CSC is able to properly supervise Mr. J.N.. The fact that Mr. J.N. has had a difficult relationship with CSC is not a reason to dismiss the application. If it were appropriate to make a long-term supervision order then I would not hesitate to do so, and Mr. J.N. would simply have to deal with it. I can also say that it is tempting to grant a long-term supervision order because of the greater resources of CSC. I say this after reviewing the CSC material and considering the evidence of Ms. Roussel. My own experience with probation and parole services, after a career as a prosecutor and now as a trial judge, is that they are diligent and professional and that they do their best under difficult circumstances – but they are often overwhelmed and under-resourced. Although CSC the better resources, I cannot impose a long-term supervision order if Mr. J.N. does not fit the legal criteria.

DISPOSITION

[88] Mr. J.N. is sentenced to six months in custody and will be put on probation for three years. The long-term offender application is dismissed.

[89] I thank Ms. Jenkins, Mr. Shime, and Ms. Ross for their professional approach to this matter.

R.F. Goldstein J.

Released: April 30, 2015