R. v. States, 2015 ONSC 3265

COURT FILE NO.: 7747/14

DATE: 20150522

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Glen Crisp, for the Crown

Applicant

• and -

CHRISTOPHER STATES

Anik Morrow, for the Respondent

Respondent

HEARD: December 19, 2014, January 12, 30, February 27, and April 2, 2015 at Toronto, Ontario

Michael G. Quigley J.

Reasons for Ruling

Re: Crown Application for s. 752.1 Assessment Order

I. Introduction

[1] On Friday, September 19, 2014, the jury found Christopher States guilty of four assault and weapons related offences arising out of an incident in Toronto on June 18, 2013. Mr. States was convicted of (i) committing an aggravated assault against Franklin Henry by wounding, (ii) assaulting Franklin Henry with a knife, (iii) possessing a knife for a purpose dangerous to the public peace, and (iv) failing to comply with a probation order dated December 19, 2012, ordering him to abstain from owning, possessing, or carrying any weapons, contrary to ss. 268, 267, 88(1) and 733.1 of the Criminal Code, respectively.

[2] After the verdict was rendered and the jury discharged, Crown counsel gave notice of the Crown’s intent to bring an application to have Mr. States declared a dangerous offender under s. 753 of the Criminal Code. The first stage in that process was the Crown’s application for an assessment order under s. 752.1. The Crown commenced that process by filing this application on October 16, 2014.

[3] These reasons for my decision on the Crown’s application for that assessment order also include my reasons for granting leave to the Crown to file further materials and an expanded reply factum.

II. The Legal Framework

(a) The Dangerous Offender Scheme

[4] Part XXIV of the Code establishes the framework for the court to determine whether an offender can be deemed to be a dangerous or long-term offender. Section 752 of the Code defines the types of offences that may give rise to a dangerous offender application. On an application by the Crown under s. 752.1(1), an assessment order shall be made where an offender is (i) convicted of a serious personal injury offence or an offence referred to in paragraph 753.1(2)(a); (ii) has not yet been sentenced on that offence, and (iii) the court is of the opinion that there are reasonable grounds to believe that the offender might be found to be a dangerous offender or a long-term offender.

[5] Further to s. 753(1)(a) of the Code, to be designated as a dangerous offender, the offender must not only have been convicted of a serious personal injury offence, but he must also constitute a threat to the life, safety or physical or mental wellbeing of other persons. That determination is to be made 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. [Emphasis added.]

[6] In this case, the predicate offences against Franklin Henry are indictable serious personal injury offences as defined in s. 752(a)(i) and (ii) of the Code involving:

(i) the use or attempted use of violence against another person, or

(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person and for which the offender may be sentenced to imprisonment for ten years or more.

[7] Where an offender has been convicted of such a serious personal injury offence, s. 752.1 of the Code requires the court to order an assessment of the offender on application by the Crown if the court is of the opinion 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 Code.

[8] Where the statutory requirements for an assessment order are met, the court can remand the offender to the care of a psychiatric expert at a facility where the assessment may be performed. The remand is for a period not exceeding 60 days. The result of the assessment that is conducted is then used in evidence on an application to declare the offender a dangerous or long-term offender under s. 753 or 753.1 of the Code, respectively.

[9] There is one other preliminary aspect to this application under s. 752.1 that is noteworthy. While the Attorney General is required to certify that the offender is to be subjected to a dangerous offender proceeding before the hearing itself can actually commence, the provisions of the Code no longer require that decision to be made before an order for an assessment is sought from the court. In this case, the Attorney General has not yet certified that a dangerous offender proceeding is to commence against Mr. States. The result is that the court is effectively being asked to assume an unusual role by providing a judicial opinion as to whether the offender “might” fall within that class of individuals who are designated as “dangerous offenders” and who can be detained in custody indefinitely at the pleasure of Her Majesty, when no determination has yet been made to have him so classified.

[10] Further, it is equally important to note that whether or not the offender cooperates in the assessment process, the Attorney General will nevertheless take the product of the assessment into account in determining whether to proceed to the next step. Although no evidence was put before me on this point, counsel for the respondent suggested that an offender’s lack of cooperation in the assessment has almost invariably been treated as a factor in favour of proceeding and seeking a dangerous offender designation. I will briefly address this issue further in the paragraphs that follow.

III. Application for An Assessment Order

(a) Material Filed Initially In Support of the Application

[11] The applicant’s material filed in anticipation of the first hearing date on this application consisted initially of Mr. States’ criminal record and case tracking, synopses and supporting material relating to his convictions for various offences, including robberies, assaults and having made death threats. The material also included the 1996 Ontario Correctional Institute Classification Interview Report, the September 13, 2000 Clinical Notation from the Guelph Correctional Centre, the November 7, 2005 Psychological Report of Dr. Suzanne Popham, and the June 2006 Progress Report by the Life Without Violence Program at the Algoma Treatment and Remand Centre.

[12] On this application, the Crown particularly relies on the November 2005 psychological report of Dr. Suzanne Popham, who completed a Risk Assessment in relation to Mr. States. Dr. Popham’s report was prepared in the context of Mr. States’ assessment for drug related offences for which he was serving a 9½ months sentence. At the time of that Report in November of 2005, almost ten years ago, Mr. States had accumulated 54 convictions since 1989.

[13] Dr. Popham rated Mr. States using several appraisal measures and recognized instruments predictive of reoffending. In her professional opinion, Mr. States presented a very high risk for reoffending, and particularly for violent reoffending. She noted that the risk of reoffending would be highest should Mr. States resume his substance abuse, vagrant lifestyle, and association with others engaged in substance abuse or crime.

(b) Some Procedural Background

[14] The initial Notice of Application and Book of Materials were filed and provided to Mr. States’ former counsel on or about October 16, 2014. On October 17, however, at the first appearance by the offender since he was found guilty, former counsel advised that he had been discharged and Mr. States advised that he was attempting to retain Ms. Morrow. In the perhaps premature expectation that an assessment order would be agreed on consent while former defence counsel was still retained, Crown counsel had reserved time with Dr. Philip Klassen at CAMH as a prospective expert to assess Mr. States.

[15] On October 28, Mr. States and Crown counsel confirmed that Ms. Morrow had been retained, but she was unable to appear as counsel for Mr. States until November 12, 2014. The matter was adjourned to November 28 to determine if counsel could agree on a psychiatrist who would perform the assessment and on plans for the exchange of materials. Counsel did agree that Dr. Pearce would serve as the assessor if an assessment were to be ordered, potentially beginning as early as January 19, 2015, but Ms. Morrow also indicated that Mr. States would oppose the Crown’s application under s. 752.1. A hearing date was set for December 19, 2014.

[16] I heard from both parties that day relative to the Crown’s request for the assessment order. However, the matter returned on several further dates following a number of communications exchanged between both counsel and me in late December, 2014 relating to unanswered questions that arose out of that December 19 hearing.[^1] Ultimately, after some skirmishing between counsel, the Crown formally sought leave to introduce additional materials on the application.

(c) The Applicant’s Position

[17] The Crown maintains that the first requirement of a s. 752.1 assessment order has been met as the offender was convicted of aggravated assault – an indictable “serious personal injury offence,” which carries a maximum penalty of 14 years and which is an offence involving violence against another person.

[18] The Crown contends that the second stage of the analysis has also been met, that is, determining whether there are reasonable grounds to believe that the offender “might” be found to be a dangerous offender. Crown counsel argues that this is a very low threshold, requiring only the existence of a mere possibility that the offender might be found to be a dangerous offender. That, in his submission, involves an evidential burden that is “less than the civil burden of proof and far less than the criminal burden of proof.” He claims that the relevant case law supports the Crown’s position that the threshold is much lower than one of credibly-based probabilities, that is, “reasonable and probable grounds.”[^2]

[19] Moreover, the Crown contends that the record filed on the application relative to Mr. States attests to a “pattern of repetitive behaviour of which [the predicate offences] form a part” and shows a likelihood of the offender causing death or injury to other persons, or inflicting severe psychological damage on other persons through failure in the future to control his behaviour: s. 753(1)(a)(i). Alternatively, the Crown submits that Mr. States’ record demonstrates “a pattern of persistent aggressive behaviour ... of which [the predicate offences] form 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:” s. 753(1)(a)(ii).[^3] If I agree with either of those contentions, and on that basis conclude that Mr. States might be found to be a dangerous offender, then I am required under the post-2008 amended statutory language to issue the assessment order. I am permitted to deny the Crown’s application only if I conclude that there is no likelihood or possibility that the offender might be found to be a dangerous offender.

(d) The Respondent’s Position

[20] The respondent’s position is complex and challenging. As expressed in both Ms. Morrow’s initial December Memorandum of Law and her more focused March 17 updated Memorandum, the respondent states that the court is required to decide one question on this application. That question is whether there are “reasonable grounds to believe that Christopher States might be designated a dangerous offender or an offender for whom a long term supervision order is required.” The respondent argues that the material filed by the Crown, both initially and as supplemented, does not provide such reasonable grounds and is inadequate and insufficient to support the granting of a s. 752.1 order. This position is grounded in Ms. Morrow’s interpretation of the statutory provisions as a whole following the 2008 amendments.

[21] In her thoughtful and thought provoking Memoranda of Law, the respondent’s counsel has canvassed the history of the dangerous and long-term offender regimes since 1947, placing particular emphasis on what she describes as touchstones of the “gatekeeper” role of the judge at the assessment order stage to ensure that the Crown discharges its burden. The respondent asserts a number of propositions focused on three main issues:

(i) The gatekeeper issue: that the judicial “gatekeeper” function has necessarily been enhanced, not diminished, given the changes enacted by the 2008 amendments to the legislation;

(ii) The evidentiary standard: that the post-2008 removal of my discretion whether to issue the order, and its replacement with a mandatory duty where the “might be found” test is met, necessarily requires that a higher evidentiary standard apply at this initial stage of the proceedings in order to stay onside constitutionally given the elimination of that judicial discretion. In her submission, “reasonable grounds to believe” is a credibly- based probability that the offender might be found to be a dangerous offender before the assessment order can issue; and

(iii) The issue of “pattern”: that in any event, on no reasonable interpretation of the concept of “pattern” can the predicate offence be considered to form a part of and be similar in nature to the offender’s extensive accumulation of prior offences. In contrast, she contends it is a highly unusual and unique occurrence relative to Mr. States’ prior offences.

[22] I will address each of these issues and positions in the paragraphs that follow, but at its core, Mr. States’ counsel’s concern is evidentiary. She insists that, in order for me to find that Mr. States might be found to be a dangerous offender, more reliable and persuasive information is needed to lay the foundation that his past behaviour evidences a pattern of aggressive behavior. Stated simply, Mr. States argues that the materials submitted by the Crown do not provide reasonable grounds to believe that an application under s. 753 or s. 753.1 “might” be successful.

[23] In any event, and regardless of whether the court issues the order on the basis that such an application “might” succeed, Mr. States argues against the issuance of an assessment order on the basis that “any expert assessment is unnecessary given that the application record must be assessed on its face and without any assumption of Mr. States’ cooperation.” Certainly, the flavour that I was left with at the end of the hearing was that Mr. States would likely be uncooperative or unwilling to participate in an assessment, if ordered, in the plain belief that it could do little to advance his efforts to avoid a dangerous offender designation. According to his counsel, in the circumstances of this case, the application record speaks for itself and there is “little if anything, that an assessor could provide that is not already within the expertise of the court,” and available to it.

IV. Application for Leave to File Additional Material

[24] During the hearing, as noted, I made inquiries with respect to the evidentiary foundation and the Book of Materials filed by the Crown. At the conclusion of the hearing, and in subsequent email correspondence with both counsel during the Christmas holidays, I asked the Crown to provide the court and the offender with a detailed report on the efforts made to date to obtain relevant evidence for the purpose of the application. In a December 22, 2013 correspondence with both counsel, I particularly asked the Crown whether additional efforts had been made to obtain further transcripts or more fulsome evidence relating to Mr. States’ antecedents that had not been initially produced on the application. I asked for the particulars of those efforts and requested that the Crown advise me as to whether or not, for any of the antecedents, more fulsome information was available.

[25] In response to my inquiries, on December 31, 2014, the Crown notified the respondent’s counsel and me that it had made additional inquiries relative to Mr. States’ antecedents. Crown counsel also advised me of his intention to provide additional written submissions or a “Reply Memorandum of Law” for the purpose of the application, having regard to the extensive and detailed memorandum that Ms. Morrow had produced at the December 19 hearing, but which had only come to the Crown’s attention on the eve of that hearing.

[26] However, on January 2, 2015, the respondent’s counsel informed Crown counsel and me of her intention to object to the introduction of any additional materials on the basis that it amounted to a re-opening of the December 19 hearing.

[27] On January 12, 2015, both counsel appeared in court to discuss how the application would proceed. By this time, the applicant had provided an index via email, containing a list of further materials that the Crown sought to file on the application. The respondent claimed that the Crown was effectively seeking to re-argue the application and stated that she opposed the introduction of the additional materials. She exhorted me to refuse to grant leave to the Crown to file additional records of Mr. States’ antecedents or a reply memorandum of law.

[28] I disagree with that view and reject that request. I determined that since I had made the inquiries into the available records on Mr. States’ antecedents and specifically asked the Crown about its efforts to compile a comprehensive collection of evidence at the end of the initial hearing, and then again in further correspondence to both counsel, the filing of an additional record in direct response to my request would not constitute a “reopening” of the application. At the conclusion of the speaking to the matter, however, I made an order for the Crown to file a formal notice of application to file additional material, to which the respondent could object.

[29] Consequently, on January 19, 2015, the applicant formally sought leave to file the additional material and to provide further written submissions to reply to the respondent’s December 17 written memorandum of law. The new material consists of a) material that was not in the possession of the applicant at the time of the hearing on December 19, 2014, and b) material that was in the possession of the applicant at the time of the December 19, 2014 hearing and that was previously provided to the respondent by way of disclosure. It also included a draft Reply Memorandum of Law from the Crown.

[30] In its Notice of Application for Leave to File Additional Materials, the Crown submitted that both sets of materials should be admitted to allow the court to have the greatest possible information relative to the offender. The additional information includes: the affidavit of Police Constable Mary MacNaughton, referencing a great deal of other material, much of it hearsay; the index of material to be relied upon by the applicant in an updated Book of Authorities; and the Book of Authorities. According to the applicant, the dangerous offender regime is part of the sentencing process and, therefore, many of the concerns that arise at the trial stage relative to the quality of the information or evidence do not apply here. As such, he argued that the court is entitled to have a broad range of material before it, including hearsay evidence, for the purpose of determining the application for assessment.

[31] On February 27, 2015, counsel appeared before me to argue the Crown’s application for leave to file those additional materials in support of the s. 752.1 application. At the conclusion of the parties’ submissions, I granted the Crown leave to file the additional materials, subject to certain limitations.

[32] While the Respondent argues that this is a discrete application separate or divorced from the sentencing character of proceedings brought under Part XXIV of the Code, I view that position as incorrect. An application for an assessment order under s. 752.1 of the Code has legal signification only within the context of a potential dangerous offender application being brought against the offender to determine if he is to be sentenced under that particular sentencing regime, and a dangerous offender proceeding is certainly a sentencing proceeding.[^4]

[33] In R. v. Jones[^5] and R. v. Gardiner,[^6] the Supreme Court emphasized the need for the greatest possible range of information to be available during the sentencing process to permit an accurate evaluation of the danger posed by the offender. In R. v. Jones, Gonthier J. stated at page 396 that “In the case of dangerous offender proceedings, it is all the more important that the court be given access to the widest possible range of information in order to determine whether there is a serious risk to public safety.” In R. v. Gardiner, the Court noted at page 20 that “the strict rules which govern a trial do not apply at a sentencing hearing and it would be undesirable to have the formalities and technicalities characteristic of the normal adversary proceeding prevail.” See section 753(4), 753.1(3).

[34] I also reject the respondent’s position that adding material to the record before the court on this application amounts to a “re-opening” of the hearing, particularly when that material arises directly out of unanswered questions that remained hanging at the conclusion of the December 19 hearing. I particularly disagree with the respondent’s position given that I specifically asked counsel the series of questions that are reproduced in his Notice of Application for Leave that gave rise to the production and desire to adduce the additional material. It was evident to me that there seemed to have been a different set of understandings with Mr. States’ former counsel relative to what would be produced. It was evident to me that Crown counsel was surprised by the tact taken by the respondent’s counsel which, with no criticism or disrespect to Ms. Morrow whatsoever, precipitated my further inquiries and caused the hearing to be left effectively in an incomplete state at the end of that day.

[35] In any event, I agree with Crown counsel and the authorities are plain that the assessment application is a summary proceeding,[^7] and that its amendment reflects an attempt by Parliament “to streamline the dangerous offender process and make proof of dangerous offender status easier.”[^8] However, even if this leave application were to be assessed in light of the re-opening test, there would plainly be very little prejudice to Mr. States at this stage of the proceeding. Any such prejudice could be remedied by the court’s exercise of discretion to allow the respondent a meaningful opportunity to reply, which is exactly what I ordered. Moreover, given my view that (i) this application cannot be divorced from the sentencing character of the dangerous offender legislative regime of which it forms a part, even if it is a separate and distinct part,[^9] and (ii) the desire to ensure that the greatest possible quantity of information and evidence is available to inform the process and advance the interests of both the offender and the state, it seems counterintuitive to deprive the court of relevant information concerning the offender’s antecedents by seeking to characterize this summary proceeding as something requiring a greater level of formality.

[36] Nevertheless, I have granted the applicant leave to file these additional materials with the caveat that while I have considered all of the materials filed, only certain materials would be made available to the assessor should I decide to grant the application for an assessment order. Those would include specific materials that are relevant to or that arise out of Mr. States’ convictions, such as the prior assessments that have been performed on Mr. States. No information would be made available to the assessor relative to charges that were withdrawn or that resulted in acquittals, or incidents that did not result in charges being laid.

[37] In anticipation of a further day of argument that was scheduled for April 2, 2014 on the original and additional materials, I invited Ms. Morrow to make any additional reply submissions that she may deem necessary, relative to whether the assessment order should be issued, in writing by March 17, 2015. Ms. Morrow filed a new Respondent’s Memorandum of Law, dated March 17, 2015, that sets out expanded and carefully focused reasons for her position as outlined above and that references the authorities that she argues support her position that this is not a case where an assessment order ought to be issued.

V. Analysis and findings on key legal issues

(a) Threshold Standard for Ordering Assessment

[38] Given the extent of legislative changes that have occurred relative to dangerous offender proceedings conducted under Part XXIV of the Code, it is important to clearly delineate at the outset the amended provisions applicable here to ensure that certain earlier cases that were more relevant to the interpretation of earlier iterations are not erroneously applied when the underlying statutory language and powers and discretions have changed.

[39] The predicate offences in this case occurred on June 18, 2013. Consequently, it is the provisions of Part XXIV as amended by the 1997 amendments, and more importantly, as further amended by the 2008 amendments, that are applicable to this offender.

[40] Prior to the 2008 amendments to the Code, the language of s. 752.1 left discretion in the sentencing judge before whom the application was brought to decline to grant an assessment order. However, the 2008 amendments removed the court’s discretion to order an assessment once the criteria under s. 753(1)(a) are met. Justice Rosenberg explained in R. v. D.M.L.,[^10] that those legislative amendments reflected Parliament’s intention to increase judicial restraint in order to “streamline dangerous offender proceedings and make proof of dangerous offender status easier.” The Court of Appeal for Ontario confirmed that it is apparent from the new statutory scheme that Parliament intended that a broader group of offenders be declared dangerous offenders than those who would have been subject to such designation under the previous regime.

[41] Counsel for the respondent suggests that it is wrong to elevate that appellate view to anything more than simply being Rosenberg J.A’s “opinion.” She claims that the issue of the scope of that language and whether it has indeed expanded the range of potential offenders who may now fall within the dangerous offender circumscription has not been challenged or tested in this province or elsewhere, and that Rosenberg J.A.’s opinion should not be accepted as the final word on the point.

[42] But respectfully, that seems incorrect to me, at least for now. It may be true that the issue has not yet been argued at the Supreme Court, but it strikes me as inappropriately dismissive to characterize Rosenberg J.A.’s interpretation as just the “opinion” of one judge. The same point was emphasized again by Rosenberg J.A. in the court’s more recent decision in R. v. Szostak,[^11] which was decided just over a year ago and has considerable relevance to this case.[^12] Consequently, it seems reasonable to treat that interpretation as the view of our Court of Appeal for the time being.

[43] In Szostak, Rosenberg J.A. provided a comprehensive and cogent review of the development of the dangerous offender legislation leading up to and including the 2008 amendments, at paragraphs 35-55. To my eye, the second and the second to last of those paragraphs go to the heart of the issue here:

36 To understand the issues in this appeal, it is necessary to briefly consider the 1977 and 1997 legislative schemes. As I will show, 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 having 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. In my view, these changes have an impact on the interpretation of the dangerous offender definition. In particular, it is my view that the possibility of successful treatment is of limited application in determining whether the person is a dangerous offender. The possibility of successful treatment is significant in choosing the appropriate disposition.

54 Further, while I agree that the legislation must be interpreted in the spirit of Lyons and bearing in mind the sentencing principles and objectives in ss. 718, 718.1 and 718.2, it is apparent that Parliament intended a broader group of offenders be declared dangerous offenders than was envisaged in Lyons where the court spoke of “a very small group of offenders”. While the legislation is still narrowly targeted to a small group of offenders, that Parliament intended to broaden the group of persons to be labelled as dangerous offenders is apparent from the legislative reversal of the principle in Johnson referred to earlier that no sentencing objective is advanced by declaring an offender dangerous and imposing a determinate sentence. I point out that there has been no constitutional challenge to the 2008 regime in this case. [Emphasis added.]

[44] On this basis, the court in Szostak sensibly concluded that there is little assistance to be gained by trying to interpret the legislation by going beyond the words of the definition in s. 753(1) and introducing principles of “intractability,” which are no longer relevant, or attempting to predict the number of offenders that Parliament intended to bring within the legislative scheme in the context of a simple application for an assessment order. The simple and obvious fact is that the section in its current language will apply based on the plain meaning of the words Parliament chose to use in creating the 2008 amendments, the limitations it imposed in s. 752.1, and the increased breadth of sentencing options it allowed for in ss. 753 and 753.1.

[45] As the Crown properly submits, the threshold standard for ordering an assessment under s. 752.1 has always been low. In R. v. McArthur, decided in the context of the pre-1997 legislative framework but equally applicable today, LaForme J., as he then was, confirmed that s. 752.1 is merely a procedural step and a summary proceeding. He confirmed that the applicable standard is “a possibility” that the offender might be found to be a dangerous offender. The question is not a complex one. It is simply whether the offender should be remanded for observation by a psychiatric expert for the purpose of gathering evidence that would or may later assist in the determination of whether he is in fact a dangerous or long-term offender.

[46] This view was further confirmed and followed by this court after the 2008 amendments. In R. v. Stratton,[^13] Bellefontaine J. found that a s. 752.1 application for assessment is intended to be a lesser summary proceeding. A plain reading of the provision, and particularly the use of the word “might,” confirmed in his view that the threshold standard is lower than the criminal or even civil standards of proof. In R. v. Fulton,[^14] the Saskatchewan Court of Appeal found, at para. 21, that “might speaks to possibilities” and that, in determining whether to make an order for assessment, the court must ask whether the prospect of the offender being found to be a dangerous or long-term offender is merely “within the realm of possibility or beyond it.”

[47] Some courts have adopted slightly varied interpretations of the word “might” or have applied adjectives to try to give greater clarity to its meaning. It seems to me, however, that such efforts are inevitably doomed to failure, because in using adjectives or alternative linguistic configurations in an effort to provide clarity, the waters simply become muddier. For example, in R. v. Webster,[^15] the Court ruled that while the Crown bears the onus to prove that there is a “real possibility” that the offender might be found to be a dangerous offender, the threshold is a low one to satisfy.

[48] But what is the qualitative difference between a “real possibility” and a “possibility,” and does the use of the phrase “reasonable grounds to find that the might test might be met” change the threshold? The answer must certainly be negative. Foundational principles of statutory construction mandate that words in an enactment be given their plain and ordinary meaning in the absence of guidance to the contrary. The word “might” is not a complex word. It is a word that expresses possibility,[^16] nothing more and nothing less. Technically, it is the past tense expression of the verb “may” and expresses the concept of having been able or permitted or likely. In the French text of the Code,[^17] the verb pouvoir is used, and the literal translation of the text “pourrait être declare délinquent dangereux” is “could” or “might” be declared a dangerous offender. In both official languages, the intendment of the provision contemplates “possibility.”

[49] I can find nothing in the new statutory scheme that can reasonably be read as creating or mandating a new or increased standard or threshold that must be met on a s. 752.1 application consequent to the removal of the judicial discretion by the 2008 amendments. The verb used before was “might” and the same verb is used now. All that is different is that Parliament has mandated restraint on the exercise of judicial discretion by changing the action verb relative to the judge from “may” to “shall,” thus requiring the applications judge to issue the order where the low threshold “might” test is met.

[50] In R. v. Vincent,[^18] McIsaac J. found that the applicable standard is “reasonable suspicion.” Referring to R. v. Jones, he noted that once an offender has been convicted of a serious personal injury offence, the balance must shift in favour of the public interest, providing the court with the “widest possible range of information in order to determine whether there is a serious risk to public safety.”[^19]

[51] It seems clear that on any fair reading of the current jurisprudence, the applicable standard is indeed low, plainly some distance below the balance of probabilities and a great distance removed from the criminal standard of proof that applies on the dangerous offender characterization itself. That criminal standard is not meant to be even remotely relevant to the question of whether the offender “might” be found to be a dangerous offender. This is so regardless of whether the preferred linguistic characterization is a “possibility,” a “real possibility,” or a “reasonable suspicion.” As explained by Roccamo J. in R. v. Vanderwal,[^20]

Despite the different language employed by these courts… [i]t is universally agreed that the threshold is a low one. It is less than the civil burden of proof and far less than the criminal burden of proof. The language in section 752 requires the court to consider the totality of the record of evidence and information in support of the application to decide whether there are reasonable grounds to believe the offender might, not will, be found to be a dangerous offender or a long-term offender. To require any more at this stage of proceedings is to run the risk that a sentencing justice must come close to making findings on an incomplete body of evidence and without the benefit of the assessment proposed under section 752.1.

(b) The “Gatekeeper” issue

[52] The first proposition put forward by the respondent’s counsel in response to the removal of judicial discretion in s. 752.1 is that the judicial “gatekeeper” function has necessarily been enhanced, not diminished, given those changes. Her theory is that when the removal of judicial discretion to order an assessment is coupled with what she regards as the desire of the Crown to “reduce the motion to a ‘Shepard’ test,”[^21] the gatekeeper role assumes more, rather than less, importance. By this claim, I take her argument to be that if the test is merely whether the offender “could” be a dangerous offender, applying a standard the same as on committal, then there is no meaningful limitation on the potential for the class of persons designated as dangerous offenders to expand exponentially. At paragraph 2 of the respondent’s March 17 Memorandum of Law, counsel insists that:

The court has a gatekeeping role. The reasons for it have not been extinguished. The section does not preclude it and to the contrary requires it. Section 7 [of the Charter] demands it.

[53] The Crown contends that given the low threshold that was present even before the 2008 amendments were enacted, the gate-keeper function of the trial judge at the assessment stage of the dangerous offender regime was largely limited to pre-empting frivolous applications from proceeding to the full hearing phase.[^22] However, I think that view understates the importance of the role that was certainly far from perfunctory in nature. There were several important decisions that breathed meaning and significance into that role.

[54] The language used by Justice Hill in the well-known 2005 decision in R. v. Naess shows he was plainly acting in a gatekeeper role when he declined to order an assessment:

Section 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.[^23]

[55] In R. v. P.H.,[^24] the importance of the gatekeeping function was emphasized again. Justice Nordheimer observed that the application for an assessment order commences a resource intensive procedure. The purpose of that procedure is to explore whether the offender should be sentenced to what is arguably the most serious penalty known to our law – an indeterminate sentence of incarceration. So in his view, the gravity of the potential result called upon the court to be vigilant in its gatekeeping function to ensure that the process would not be activated unless there was a reasonable prospect that the offender’s antecedents and circumstances would call for a penalty of that potential seriousness to be imposed.

[56] Similarly, the need for some “real” or “credibly-based” possibility that an offender can or will be declared a dangerous or long-term offender was emphasized in R. v. Smyth.[^25] In that case, Trafford J. made clear that given the statutory language at the time, and the liberty interests that were at stake, the discretion that was still available to him under s. 752.1 allowed him to view the threshold as having a higher standard. This as well is an obvious expression of the judicial exercise of that gatekeeping role.

[57] Crown counsel argues, however, that these cases were all decided before the 2008 amendments removed judicial discretion to decline to order an assessment where the “might” test is otherwise met. Although there may be a compelling aspect to the notion that our courts should continue to exercise vigilance to ensure that only those cases that ought to be proceeding towards a dangerous or long-term offender hearing do so, that can only be done within the limitations of the statutory language. Put simply, prior to the 2008 amendments, judges could exercise discretion to deny the issuance of an assessment order, as judges did in R. v. Naess, R. v. P.H., R. v. Smyth and R. v. Neve, when they deemed such order to be inappropriate, because s. 752.1 used permissive rather than mandatory language. In contrast, the present provision will only permit the assessment order to be denied where the judge concludes that there is no reasonable ground that the offender might be found to be a dangerous or long-term offender. No other exception exists in the post-2008 language. Nevertheless, while the governing caselaw shows that a wider group of offenders is now embraced within the dangerous offender circle, it still could not have been intended by Parliament to be a limitless grouping.

[58] The respondent appears to take the view that greater gatekeeping is necessary because the Attorney General’s consent is no longer required before seeking an assessment order. However, there is no logic in the court exercising a gatekeeping function to counterbalance the absence of consent or governmental review when Parliament specifically determined that it would no longer be required at the outset. It would clearly be at odds with the legislative intent of the amendment in the first place.

[59] Importantly, it would also be incorrect to ignore the reality that, unlike in P.H. and Smyth, judges now have greater sentencing options under Part XXIV than they did before, which leaves some discretion for the sentencing judge to act as a “gatekeeper” in the proceedings to ensure fairness. Justice Rosenberg emphasized this point at para. 53 of Szostak in explaining why a pattern of intractable behaviour need no longer be proven:

Thus, the legislation contemplates that a person could be declared a dangerous offender because they meet the definition but nevertheless be given a disposition including a long-term supervision order or a conventional sentence. However, these two options are only available if an indeterminate sentence is not required to protect the public from the commission of murder or a serious personal injury offence. If a person, to be declared a dangerous offender, had to not only meet the statutory definition but display a pattern of conduct that was pathologically intractable, that person could, it seems to me, rarely, if ever, be eligible for a long-term supervision order or a conventional sentence.

[60] In addition, as mentioned in the recent Supreme Court of Canada decision in R. v. Steele, the serious personal injury offence requirement makes clear that only specific types of offenders will be subject to the provisions in the first place.[^26] In light of these safeguards, the fact that the Attorney General’s consent is no longer required actually serves to reinforce the position that the s. 752.1 assessment application is meant to be a summary proceeding and a low standard to meet.[^27]

[61] This was the view of Bellefontaine J. in Stratton,[^28] who noted that s. 754(1) specifically exempts the assessment application from the procedural protections within the dangerous offender application hearing and supports the Crown’s argument that a

752.1 application for an assessment is intended to be a lesser summary proceeding. In particular, s. 754(1)(a), exempts the Crown from having to provide the basis on which it intends to found the dangerous offender application which is inconsistent with requiring the Crown to prove such a basis on the assessment application beyond a reasonable doubt….The Code’s exempting of the assessment hearing from this requirement is further support for the Crown position that the criminal standard of proof need not be met.[^29]

(c) The evidentiary standard issue

[62] The second line of argument against the Crown’s application for this assessment order is based on the respondent’s claim of the evidentiary standard that must be met. The respondent’s counsel argues that the post-2008 removal of my discretion whether to issue the order, and its replacement with a mandatory duty where the “might be found” test is met, necessarily requires that I apply a higher evidentiary standard at this initial stage of the proceedings in order to stay onside constitutionally given the elimination of that judicial discretion. In her submission, before the assessment order can issue, there must be “reasonable grounds to believe,” that is, a credibly-based probability, that the offender might be found to be a dangerous offender.

[63] Let me first note that despite the floating of constitutional language in her Memorandum of Law, no constitutional challenge is mounted here by the respondent. No constitutional notice has been given. The respondent merely proclaims that a higher evidentiary standard is required because s. 7 of the Charter demands it, although no explanation is provided as to why that is so. As such, I have focused not on the constitutional aspects that allegedly demand that higher standard of evidence, but rather on internal consistency requirements of statutory interpretation and this different route of attack on the repeal of the judicial discretion that was formerly contained in s. 752.1.

[64] The applicant asserts that the applicable evidential standard must necessarily be lower than the standard that applies on the dangerous offender application itself. The Crown submits that the decision to order an assessment is not confined to evidence that meets the criminal standard of proof. Crown counsel advances the decision of the Supreme Court of Canada in R. v. Gardiner in support of that argument, where the court addressed the treatment of hearsay evidence at the sentencing stage of a criminal proceeding at para. 32:

The hearsay rule does not govern the sentencing hearing. Hearsay evidence may be accepted where found to be credible and trustworthy. The judge traditionally has had wide latitude as to the sources and types of evidence upon which to base his sentence. He must have the fullest possible information concerning the background of the accused if he is to fit the sentence to the offender rather than the crime.

[65] In contrast, the respondent appears to assert that the evidentiary threshold must be higher in order to offset the low threshold standard for ordering an assessment. In other words, in Ms. Morrow’s submission, if the threshold that must be met for ordering an assessment is low, then it is essential to ensure balance against the potential of opening the floodgates to an uncontrolled expansion of the class of offenders designated as dangerous by requiring that the evidence proffered in support of the request for an assessment order meet the ordinary standards of evidentiary admissibility.

[66] However, I find that there is an unavoidable inconsistency and absence of logic in the respondent’s contention that only evidence meeting a higher evidential standard may be considered in determining whether the offender “might” be designated a dangerous offender or a long-term offender under the relevant provisions of Part XXIV. Moreover, that position is contrary to the thrust of the governing jurisprudence that shows that a lesser quality of information may be received and accepted as having persuasive value on this hearing. R. v. Jones contemplates that the court have “the widest possible range of information.”

[67] As noted above, the dangerous offender regime is certainly part of the sentencing process and it is equally evident that the case law supports the entitlement of the court to rely on a broader range of information. As LaForme J. found in McArthur, in deciding if an assessment order should be made, one should consider the “circumstances and ….all relevant considerations, including the evidence.” This language plainly shows that information beyond the evidence, that may not meet evidentiary standards, may nevertheless be relied upon. In McArthur, the court was willing to accept hearsay evidence of an officer who had reviewed the offender’s criminal record and who provided second or third hand evidence relative to the offender’s criminal background. This was not relied upon to find the offender to be a dangerous offender. Much stricter evidentiary standards necessarily and obviously apply should the matter progress to a hearing under s. 753, but a lesser standard was acceptable at the assessment hearing to permit the court to reach the preliminary view on an assessment application.[^30]

[68] It would be inappropriate to require that the Crown prove all of the materials advanced in support of the request for an assessment order, because the assessment hearing is not an actual dangerous offender hearing, but simply a preliminary step, albeit a necessary one,[^31] to “lay the groundwork” for a dangerous or long-term offender hearing[^32] should the matter proceed to that next level. This language supports the Crown’s contention that the decision to order an assessment is not confined to evidence that meets the criminal standard of proof, at least at the assessment order stage.[^33]

[69] While the respondent is correct to contend that the conclusion that an offender might be determined to be a dangerous or long-term offender must be based on “reasonable grounds,” I agree with the Crown that “reasonable ground” does not refer to a criminal standard of proof, or even the civil standard of proof. Rather, it refers to a reasonable possibility. The respondent’s position is not supported by the jurisprudence. It would be counterintuitive to scrutinize the reliability of evidence against a stricter burden of proof at the assessment stage than the standard that is required at the dangerous offering hearing itself.[^34] Moreover, following the 2008 amendments to the Code, it would contradict Parliament’s intention to broaden the scope and range of offenders subject to the dangerous offender regime to impose on the Crown the onerous burden of proving the information that constitutes the evidence at this stage.

(d) The “pattern” issue

[70] Finally, the respondent raises the issue of “pattern.” The language of s. 753(1)(a) and (b) requires that there be a direct and patterned connection between the predicate offence perpetrated by the offender and his criminal antecedents. An offender can only be found to be a dangerous offender where evidence is presented that either (i) demonstrates a pattern of repetitive behaviour of which the predicate offence forms a part that shows a failure of the offender to exercise behavioural restraint and a consequential likelihood of causing physical or mental injury or death to others, or (ii) a pattern of persistent aggressive behaviour of which the predicate offence forms a part showing substantial indifference to the foreseeable consequences of his behaviour on other persons. Stated simply, the issue to be determined is whether the predicate offences committed by Mr. States were part of a pattern of violent, aggressive or indifferent offending.

[71] His counsel argues that the predicate offences cannot be considered to form a part of and be similar in nature to the offender’s extensive accumulation of prior offences on any reasonable interpretation of the concept of “pattern.” She contends the predicate offences are actually extraordinary and highly unusual and unique occurrences relative to her view of Mr. States’ pattern of prior offences.

[72] Counsel makes this argument by reference to s. 752.01, the first section of Part XXIV, which was enacted in the 2008 amendments. Formerly, there was no such obligation on Crown counsel to inform the court of whether he or she intended to make an application for the offender to be designated a dangerous offender. Now, that new provision directs a prosecutor to notify the court of its intention to obtain an assessment order at the earliest opportunity whenever an offender who has been convicted of a qualifying offence has two prior convictions for serious personal injury offences that are specified designated offences (generally the most serious violent or sexual offences), and for which he received penitentiary sentences.[^35] Obviously, having never previously been sentenced to two years of imprisonment, Mr. States does not fall within that group of offenders in respect of whom the Crown must give notice under that new provision.

[73] Although that provision is inapplicable to Mr. States, his counsel makes her argument about “pattern” by reference to that new provision. In order to accurately capture her position on this issue, I have reproduced paragraphs 18 and 19 of the respondent’s March 17 Memorandum of Law in their entirety:

18. Section 752.01 describes offenders whose offending pattern would justify an application for an assessment order. An offender whose predicate is violent and who has twice offended violently in the past and been sentenced to two years on each occasion may be an offender who demonstrates, given the predicate, a propensity to reoffend in similar fashion. A pattern is created by the thread of the past that links [the] past to the current conduct. It is the thread that has value and not simply the offence before the court. The serious nature of the offence is demonstrated by the sentence. It is not repeat offending per se that grips the community and the court, but repeat offending of a certain kind. Indeed a close look at section 753.1 makes it quite clear that a LTSO is unavailable even when the offender possesses a substantial risk to reoffend – if the predicate offence is not sufficiently serious to attract a sentence of two years or more. In section 753.1, Parliament expressly excluded reformatory sentences even when the conduct resulted in harm. While all criminal offending is a serious matter, the Criminal Code deals in fine distinctions and exacting precision.

19. Though Mr. States has a lengthy record, he has in fact never received a sentence of two years or more. For the past 24 years Mr. States’ offending has consistently remained at the lower level and beyond the contemplation of a LTSO (s. 753.1). Mr. States manner of offending has to date, and for quite a lengthy period of time, been of no interest to section 753.1. [Emphasis in the original.]

[74] Nevertheless, while it may be that Mr. States’ antecedents do not commend him for a LTSO, that does not mean that he could not be found to be a dangerous offender. It does not mean that he cannot be ordered to undergo an assessment under s. 752.1. While no authority was advanced for the proposition, the issue was canvassed in the decision of the Saskatchewan Court of Queen’s Bench in R. v. Keepness,[^36] a 2010 decision that takes into account the impact of the enactment of s. 752.01.

[75] In that case, the offender had previously been convicted of more than two designated offenses, but he had not been sentenced to at least two years of imprisonment on at least two of his prior convictions. Consequently, defence counsel argued that s. 752.01 constituted a preliminary threshold for the issuance of an assessment order, and since Mr. Keepness did not meet the criteria, no assessment order could or should be made. In contrast, the Crown argued that s. 752.01 simply describes the duty that exists now on Crown counsel, in the circumstances described therein, to notify the sentencing judge, as soon as possible after a finding of guilt on the predicate offence, about whether the Crown intends to apply for an assessment order. In the Crown’s position, the new s. 752.01 procedure was simply that: procedural. The Saskatchewan Court of Queen’s Bench agreed and dismissed the offender’s challenge.

[76] In interpreting the provision, the court held that where the requirements of s. 752.01 are not met, the question of whether an assessment order ought to be issued would default to the same question that is applicable here, namely whether the offender has been convicted of a serious personal injury offence, and whether there are reasonable grounds to believe that he might be found to be a dangerous offender under s. 753 or a long-term offender under s. 753.1. Interestingly, in that case, the assessment was ordered even though that offender had a less egregious record than some offenders before the court, and I might note, a less egregious record than Mr. States, at least in respect of total offences. There, the offender had accumulated 37 convictions including 10 convictions for some from of assault and one for manslaughter. In Mr. States’ case, the accumulated record consists of 54 offences, although he has not been convicted of manslaughter. Seventeen of them are assault offences of one type or another, with at least 5 convictions for assault causing bodily harm or assault with a weapon, 7 convictions for weapons offences and 6 convictions for issuing threats, although it is true that the predicate offences are the most serious convictions he has faced.

[77] Regardless of whether Mr. States can qualify for a long term supervision order, that issue is not before me, and while counsel may believe that his conduct does not exhibit the kind of pattern that could support a dangerous offender finding, her submission relative to the meaning of “pattern” is not supported by the governing authorities. In Szostak, the trial judge addressed the issue of the existence of a repetitive pattern under s. 753(1)(a)(i). On appeal, Rosenberg J.A. addressed its meaning at paragraphs 56 and 57, citing the earlier decision in R. v. Hogg,[^37] and other earlier Canadian appellate decisions.[^38] The court explained the concept as follows:

In R. v. Hogg, 2011 ONCA 840, this court considered the meaning of the phrase “a pattern of repetitive behaviour” in s. 753(1)(a)(i). Despite the date of this court’s judgment, given the dates of the offences, it would seem that the case was decided under the 1997 legislation. The court referred with approval to decisions of the British Columbia Court of Appeal and the Newfoundland Court of Appeal in R. v. Dow, 1999 BCCA 177, 134 C.C.C. (3d) 323; R. v. Pike, 2010 BCCA 401; and R. v. Newman (1994), 1994 CanLII 9717 (NL CA), 115 Nfld. & P.E.I.R. 197, and concluded as follows at paras. 40 and 43:

To summarize, the pattern of repetitive behaviour that includes the predicate offence has to contain enough of the same elements of unrestrained dangerous conduct to be able to predict that the offender will likely offend in the same way in the future. This will ensure that the level of gravity of the behaviour is the same, so that the concern raised by Marshall J.A. [in Newman] -- that the last straw could be a much more minor infraction -- could not result in a dangerous offender designation. However, the offences need not be the same in every detail; that would unduly restrict the application of the section.

Although the pattern differed in the detail of how the offences were carried out, the predicate and past offences still represented a pattern of repetitive violent behaviour that made it likely that the appellant would continue to commit similar acts of violence in order to have sexual gratification in the future. I would not give effect to this ground of appeal. [Emphasis added.]

[78] In Hogg, as noted in Szostak, the court also made an important observation about the relationship between the number of prior offences and the demonstration of “pattern.” There may well be a need for remarkable similarity where, for example, only two offences were involved,[^39] but fewer similarities would be needed for a finding of a “pattern” where four offences were involved. Presumably, by extension, there need not be remarkable similarity in order for a pattern to be found where there are, for example, 17 assaults as in the case of Mr. States. Plainly, fewer detailed similarities will be needed as the number of antecedent offences bearing the essential similarities of violence, aggression, or indifference increases.

[79] At paras. 70 and 72 in R. v. Newman, Marshall J.A. eloquently explained why the predicate offence must form part of the behavioural pattern:

It is clear that inclusion of the predicate offence of serious personal violence as an integral and essential component of the offender’s behaviourial pattern is a sine qua non of any dangerous offender finding under either [s. 753(1)(a)(i) or (ii)] referenced in this case. Each one requires one last act of serious personal violence to anchor the offender's pattern of pre-existing unrestrained or uninhibited behaviour before that person can be branded as a public threat …

[…The finding is] for those who have exhibited both a current, as well as unremitting, proclivity for the perpetration of serious violence upon others. It is the contemporary or current nature of the offender's latest criminal excess that significantly enhances the likelihood of kindred recidivism, which the dangerous offender provisions are aimed at preventing. That is why both of the foregoing provisions of s. 753 require the predicate offence of serious personal violence to form a part of the offender's behaviourial pattern. [Emphasis added.]

[80] In that case, the court rejected defence counsel’s argument that the predicate offence was incompatible with any pattern envisaged by the legislation. Instead, it concluded that the criminal assault that the offender had perpetrated reflected the necessary element of serious violent, unrestrained or indifferent behaviour, thus making it an appropriate essential component of either of the two patterns described in the legislation. Consequently, while proof of a pattern of very specific behaviour may require evidence relative to the existence of those specific elements, it strikes me that level of certainty need not be established where the record of the offender before the court displays extensive and persistent aggressive, violent or indifferent behaviour relative to the consequences of his actions on other persons, or where the Crown seeks to rely on the long- term offender provisions.

[81] Importantly as well, however, neither is there any stipulation anywhere in Part XXIV that only offenders who have served at least one penitentiary sentence in excess of two years may be classified or designated as dangerous, and as the decision in Keepness shows, the thresholds in s. 752.01 do not establish a base for reprehensive conduct that must be met or exceeded before an offender might be found to be a dangerous offender. As noted above, and it bears repeating, the fact that the offender has not served a penitentiary sentence does not mean that he is not a person who might be found to be a dangerous offender, and that is the only requirement that must be met for the assessment order to issue. However, I would observe that Mr. States could easily have been sentenced to a penitentiary sentence for at least three if not four of the assaults causing bodily harm

[82] Mr. States’ case is actually, to my eye, an interesting example of the exact opposite of the pre-2007 position, and the exact opposite of the position put forward by the respondent. Here, there is no discretion in the court to deny the assessment order if the offender might be found to be a dangerous offender. Whether the quality of evidence gathered to date or advanced by Crown counsel on a dangerous offender hearing would be adequate to give rise to a finding beyond a reasonable doubt, or fail to show the need for an indeterminate order of incarceration and instead support other less draconian sentences, remains to be seen. That is where the new discretion given to the court relative to the result at the end of the hearing will come into play.

VI. Application of the law and findings relating to Mr. States

[83] Crown counsel contends that on the basis of the material that he has put before the court, there is more than enough information to find that Mr. States might be found to be a dangerous offender, or at the very least, a long-term offender.

[84] Mr. States has an extensive and lengthy record of offending against persons and property going back more than 25 years. He admitted to that criminal record at the trial where the jury convicted him of the predicate offences. The prior assessment reports prepared by Dr. Popham and others relative to Mr. States plainly and clearly show that he is a person who, at least at the time those assessments were prepared, was regarded as being at a high risk to reoffend, with increasing elements of violence seemingly becoming evident in his “pattern” of offending.

[85] All of the risk assessment tools that were used to evaluate Mr. States in 2006, nine years ago, placed him in a very high-risk category for reoffending. This conclusion was echoed as well in the clinical notes prepared by Noella Taylor in 2000. So, what has happened since that time? We have witnessed Mr. States committing further serious offences and exhibiting increasingly aggressive behaviour, ultimately culminating in the predicate offences on which he has been convicted.

[86] The respondent’s counsel contests that view. She says that Mr. States’ prior extensive criminal record does not reflect a “pattern,” but merely an “antisocial lifestyle.” She argues that it is not a “pattern” to be “aggressive” or to exhibit aggressiveness in one’s conduct. She says that pattern must first be established with conduct, and then by the seriousness of the conduct. In her view, Mr. States is nothing more than a chronic low-grade offender, even though his record may consist of some 54 offences committed over a period of 25 years, and regardless of his risk to reoffend.

[87] Mr. States’ counsel insists that if I have enough information, which I believe I do, to permit me to understand the nature and degree of Mr. States’ offences, then I would necessarily be unable to find a pattern of sufficiently serious offences of which the predicate offence forms a part and that demonstrates an apparently unrelenting predisposition to act out again, seriously and violently. Nevertheless, it seems plain on the information before the court that there are numerous instances where unprovoked violence is exhibited by this offender in his conduct in the context of interactions with generally unsuspecting, vulnerable or seemingly vulnerable victims. These offences virtually always occur in drug-related circumstances in the Dundas and Sherbourne Streets area of Toronto, an area well known as a community gripped by drug and alcohol use and abuse.

[88] Be that as it may, I fundamentally disagree with and reject the respondent’s submission, at least in the context of this application. Counsel’s efforts to minimize the offender’s prior conduct mask what has plainly been an increase that has seriously and steadily, even if only incrementally, become more violent for the past twenty years, and particularly, the past ten years.

[89] There are plain elements and flavours of significant violence that go back to Mr. States’ first offences in Nova Scotia, and his offences in Toronto in the mid-1990s. There are offences involving death threats and altercations that are substantially more serious than petty fights and that resulted in significant injury in the late 1990s and up until 2005. And then it is during that most recent period of 10 years that Mr. States has committed offences that seem to demonstrate an increased proclivity for aggressiveness and violence, and increasing indifference relative to his conduct. I find it hard to differentiate between such conduct and a “pattern of persistently aggressive behaviour.”

[90] Having conducted an extensive review of the material filed, both for the initial hearing on December 19, 2014 and further to the request for leave to file additional material, I find that I am satisfied on the basis of the evidence before me that Christopher States might be found to be a dangerous offender or a long-term offender under the tests set out in s. 753(1)(a)(i) or (ii).

[91] I would add, at this preliminary stage, that is not to say that Mr. States would necessarily be found to be a dangerous offender. The conclusion is no more than he might be so found. I would also note that, even if so found, that is not to say that there might not be evidence that would be advanced at the hearing itself in support of his being a suitable candidate for a term of incarceration coupled with a long-term supervision order under s. 754(1)(b), or simply an ordinary custodial sentence determined in the usual way having regard to the factors in ss. 718 and 718.1 of the Code and imposed under s. 754(1)(c), if the protection of the public does not require that an indeterminate sentence be imposed.

[92] The last assessment of Mr. States was conducted 10 years ago. It is certainly out of date, but I can only achieve an update of that information by ordering that he be assessed and that the result of that new assessment be adduced as evidence should the Attorney General determine to proceed with a dangerous offender hearing. Notwithstanding this offence, it may be as he ages that his recidivist risk has or is declining. It may be that he is more amenable to treatment. I do not know whether the assessment I have ordered will be completed with the cooperation of Mr. States. I do not know whether his counsel will advise him to participate or not, but that is not my concern.

[93] What is my concern, as reflected in this conclusion, is that the Crown has met its burden of proving that Mr. States’ conviction for the predicate offences forms part of a pattern of behaviour that I am increasingly concerned may present a danger to the life and safety of other individuals. The evidence of Mr. States’ antecedents, including the psychological and institutional reports, synopses, occurrence reports, and transcripts all constitute information that meets the existing low threshold established by Parliament for granting an assessment order.

[94] As is evident from the provisions of the Criminal Code relating to dangerous offender designations, Mr. States may be found to be a dangerous offender on the basis of evidence establishing a number of elements. These include a pattern of repetitive behaviour, showing a failure by Mr. States to restrain himself 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.

[95] In my view, Mr. States has exhibited a pattern of behaviour through numerous, often unprovoked assaults on primarily innocent bystanders that may meet that test. The guidance provided by the governing appellate authority in this province in Szostak shows that in the case of a record as extensive as that accumulated by this offender over a period of some 24 years, there need not be a match of exactitude relative to the elements of the predicate offences and the prior history in order to establish the existence of pattern.

[96] Mr. States’ long record of criminal offences commencing in 1989 and continuing until his conviction for the predicate offence may also reflect a pattern of persistent aggressive behaviour showing a substantial degree of indifference with regards to the reasonably foreseeable consequences of his behaviour to others, on the basis of which he might be found to be a dangerous offender. The June 1996 Ontario Correctional Institute Report describes Mr. States as a “very angry and exceedingly violent man with sadistic features,” a man deeply entrenched in the criminal subculture who has learned to manipulate its rules to his advantage.

[97] The material filed on this application also attests to Mr. States’ indifference to the consequences of his actions on other individuals. The September 2000 report by the Guelph Correctional Centre, prepared 15 years ago, refers to Mr. States’ general lack of remorse for his extensive criminal history and his disregard for societal conventions. The report identifies Mr. States as being at a very high risk of reoffending, a prediction that may have been proven accurate by Mr. States’ subsequent offences. But that information has also not been updated.

[98] The 2005 psychological report of Dr. Popham, on which the Crown places heavy reliance, identifies Mr. States as a “versatile offender with few significant conviction free periods since 1989.” The report provides an image of a man described as a bully by institutional staff, someone who minimizes the consequences of his actions. Dr. Popham’s report refers to Mr. States’ use of intimidation and violence to control his victims. It too places Mr. States at a high risk of recidivism. But that report too is a decade old.

[99] So, regardless of the length or complexity of the analysis asked of me by both counsel, the question here is whether I am satisfied under the law as it presently reads that Mr. States might be found to be a dangerous offender. The simple answer is that I am, and accordingly, the Crown’s application for an assessment order will issue.

Michael G. Quigley J.

Released: May 22, 2015

CITATION: R. v. States, 2015 ONSC 3265

COURT FILE NO.: 7747/14

DATE: 20150522

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Applicant

• and –

CHRISTOPHER STATES

Respondent

REASONS FOR RULING

Re: Assessment under s. 752.1

Michael G. Quigley J.

Released: May 22, 2015

[^1]: Those communications were all made part of the record of these proceedings, and were also described on the record when the matter returned on January 30, 2015. In addition, the chronology is described, in my view accurately, in paragraphs 5 through 16 of the Crown’s January 19, 2015 Notice of Application to file Additional Materials, which also quotes extensively from those communications instigated by me.

[^2]: See R. v. Vincent, [2002] O.J. No. 5623 (S.C.J.), at para. 3; R. v. Torres, [2007] O.J. No. 1402 (S.C.J.), at paras. 22-23; R. v. McArthur, [1997] O.J. No. 5146 (Gen. Div.), at para. 20; and R. v. Vanderwal, 2010 ONSC 265, [2010] O.J. No. 246 (S.C.J.), at para. 27.

[^3]: The applicant concedes that the offender’s conduct is not of such “a brutal nature as to compel the conclusion that [his] behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint:” s. 753(1)(a)(iii).

[^4]: R. v. Jones, at para. 130; and R. v. K.R.S. 2000 BCCA 433, [2000] B.C.J. No. 1412, at para. 19.

[^5]: 1994 CanLII 85 (SCC), [1994] 2 S.C.R. 229.

[^6]: 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368.

[^7]: R. v. Stratton, 2009 ONCJ 410, [2009] O.J. No. 3764, at para. 10; and R. v. D.P.F., [2002] N.J. No. 268 (Nfld. S.C.), at paras. 15 and 42-43.

[^8]: R. v. D.M.L., 2012 ONCA 78, [2012] O.J. No. 475, at para. 3.

[^9]: See R. v. McArthur, at para 17. I note that LaForme J., as he then was, observed that the assessment hearing is separate from an actual dangerous offender hearing, but that is in the context of recognizing that a dangerous offender proceeding may still proceed regardless of whether an assessment is ordered or denied. Regardless, that distinction still does not change the assessment hearing’s character as a summary proceeding: see McArthur, at para.11.

[^10]: 2012 ONCA 78, at para. 3

[^11]: 2014 ONCA 15, [2014] O.J. No. 95 (C.A.).

[^12]: In R. v. D.M.L., the panel was Rosenberg, Juriansz and Rouleau, JJ.A., with the former and latter of those three joined by Strathy J.A., as he then was, in deciding Szostak.

[^13]: 2009 ONCJ 410, [2009] O.J. No. 3764.

[^14]: 2006 SKCA 115, 289 Sask. R. 98.

[^15]: 2011 ONSC 2502, [2011] O.J. No. 2099 (S.C.J.).

[^16]: R. v. Ward, [2003] O.J. No. 2582 (S.C.J.), at para. 5.

[^17]: Lois codifies du Canada, L.R.C. 1985), ch. C-46, version de l’article 752.1 du 2008-07-02. See also Multi Dictionnaire de la langue Francais, (5me ed.), (Montreal: Editions Quebec Amerique, 2009), at pp. 1283-4.

[^18]: [2002] O.J. No. 5623, at para. 3 (S.C.J.)

[^19]: 1994 CanLII 85 (SCC), [1994] 2 S.C.R. 229, at p. 290.

[^20]: 2010 ONSC 265, [2010] O.J. No. 246, at para 27.

[^21]: See United States of America v. Shepard, [1977] 2 S.C.R.167, at p. 1080.

[^22]: R. v. Vincent, at para. 1.

[^23]: [2005] O.J. No. 936 (S.C.J.), at para. 77.

[^24]: [2005] O.J. No. 5698 (S.C.J.), at para. 32.

[^25]: [2007] O.J. No. 1946 (S.C.J.), at para. 56.

[^26]: R. v. Steele, 2014 SCC 61, [2014] 3 S.C.R. 138, at para. 40.

[^27]: See also R. v. D.P.F., at paras. 15, 42-43.

[^28]: 2009 ONCJ 410, [2009] O.J. No. 3764 (S.C.J.).

[^29]: Stratton, at para. 10. Also as noted in R. v. D.P.F. at para. 15, “This is a summary proceeding and does not involve any finding of fact that the offender is a dangerous offender. ... Whether a remand (for assessment) is necessary is a discretionary decision of the Court. I find based on the documentation and reports placed before me, that this assessment would be an important and helpful piece of evidence to be considered at the dangerous offender hearing.”

[^30]: See McArthur, at paras. 25 and 27; Stratton, at para. 23; and R. v. Norman, 2014 ONSC 4769, at para. 17.

[^31]: The language of s. 752.1 shows that if the criteria are met, then the assessment must necessarily be ordered, and equally, that the results of the assessment shall be used in evidence at the dangerous offender hearing itself.

[^32]: See R. v. Fulton, at para. 19.

[^33]: See Stratton, at para. 5.

[^34]: See Stratton, at para. 23.

[^35]: I note as well that such offenders are now presumed to be dangerous offenders under newly enacted s. 753(1.1), even though, of further note, is the fact that even for a person presumed to be a dangerous offender under that provision, the offender can only be found to be a dangerous offender where the Crown makes an application for such a designation, and where the presumption is not rebutted on a balance of probabilities. Although it is merely a tool to interpretation and not definitive, further guidance on the purposes and intent behind the enactment of the 2008 amendments can be found in Bill C-27: An Act to amend the Criminal Code (dangerous offenders and recognizance to keep the peace); Legislative Summary prepared by the Department of Justice, Canada, Law and Government Division, 10 January 2007.

[^36]: 2010 SKQB 118, 351 Sask. R. 284.

[^37]: 2011 ONCA 840, [2011] O.J. No. 5963, at paras. 40 and 43.

[^38]: R. v. Dow, 1999 BCCA 177, [1999] B.C.J. No. 569; R. v. Pike, 2010 BCCA 401, [2010] B.C.J. No. 1803; and R. v. Newman (1994), 1994 CanLII 9717 (NL CA), 115 Nfld. & P.E.I.R. 197 (Nfld. C.A.).

[^39]: See R. v. Jones, above.