ONTARIO
SUPERIOR COURT OF JUSTICE
Toronto Region
Court File No.: 14-40000398
Date: 2015-07-03
B E T W E E N:
HER MAJESTY THE QUEEN
S. Cressman & A. Hannah-Suarez, for the Crown
- and -
SIMEON MINOTT
E. Royle & S. Sangha, for the defence
Heard: June 22-25, 29 & July 2, 2015
Nordheimer J. (orally):
[1] On June 5, 2014, Mr. Minott pleaded guilty to one count of manslaughter. Thereafter, the Crown gave notice of its intention to seek to have Mr. Minott declared a dangerous offender. An assessment of Mr. Minott under section 752.1 of the Criminal Code was ordered on consent. After receipt of the assessment, the Attorney General provided her consent to the dangerous offender application.
[2] Mr. Minott is currently thirty-three years old. He has a criminal record that started in 1994 when he was twelve years old. There are fourteen separate sets of convictions on Mr. Minott’s record. These include convictions for various assaults, for failures to comply with prior dispositions and for weapons offences. On most of these offences, Mr. Minott received sentences of probation or time served together with probation. It appears that, to date, the longest sentence imposed on Mr. Minott was a one year conditional sentence, on top of sixteen months of pre-sentence custody, for his conviction for aggravated assault in 2005.
[3] In terms of the current conviction, according to the admitted facts, read in at the time of Mr. Minott’s plea, Mr. Minott stabbed a man in a bar with a small knife. The victim was a casual friend of Mr. Minott. It appeared to observers that Mr. Minott was upset with the victim, but there is no reason offered as to why Mr. Minott would be upset with him. Mr. Minott had been in the bar for some time prior to the stabbing, but there was no apparent contact between Mr. Minott and the victim during this time.
[4] In terms of his background, Mr. Minott was born in Toronto. It is evident from the material filed before me that Mr. Minott had a difficult upbringing. His father was largely absent from his life and was also involved in criminal activity. Mr. Minott’s mother was hardworking and provided for Mr. Minott but Mr. Minott himself says that he did not listen to her. Consequently, Mr. Minott was sent to live with his grandmother for some periods of time because she could, apparently, better control him.
[5] Mr. Minott attended school but was exposed to many gang issues while in attendance. Mr. Minott says that he was fearful at school and that he was bullied. As a consequence, Mr. Minott left prior to completing high school.
[6] Mr. Minott worked sporadically when he was a teenager but he has not worked now for many years. In 2004, Mr. Minott was diagnosed with schizophrenia. He was put on medication for his schizophrenia at that time. As a consequence of this illness, he was placed on the Ontario Disability Support Program in 2006.
[7] Mr. Minott is not married but he has had relationships with four different women that led to children being born.
[8] When Mr. Minott was eighteen, he was shot. He was at a club with friends, some of whom were armed with guns. They got into a confrontation with some other males. One of those other males apparently attempted to shoot one of the males, who was with Mr. Minott, but missed him and struck Mr. Minott. Mr. Minott says that he continues to this day to have flashbacks regarding this event. It also appears, from his personal history, that Mr. Minott’s attitude and personality changed significantly after this event.
[9] Mr. Minott has a history of using marijuana. It appears that, at some points, Mr. Minott has also used crack cocaine although the extent of that use is far from clear.
[10] In terms of his diagnosis for schizophrenia, Mr. Minott was put on a low dose medication starting in 2004. Mr. Minott says that he was very consistent with his use of the medication, except for the two month period prior to his arrest for the current offence. However, records from medical practitioners, who dealt with Mr. Minott, suggest that he was inconsistent with his treatment and with taking his medication.
[11] Mr. Minott has a history of bizarre behaviour, dating back at least to 1998, when he was sixteen but becoming more pronounced in the 2000’s when he was in his twenties. This behaviour includes aggressiveness, hearing voices, rambling speech and paranoia. Mr. Minott would strike out at people for no apparent reason. This behaviour led Mr. Minott to have many encounters with psychiatrists and it also led to him being admitted to treatment facilities, including the Centre for Addiction and Mental Health.
[12] Dr. Klassen provided the assessment report for the purposes of this dangerous offender application. He described Mr. Minott’s behaviour as including “pronounced paranoid and grandiose delusions”. From his review of the various medical records, and his extensive interviews with Mr. Minott, along with other available information from family members and others, Dr. Klassen believes that Mr. Minott suffers from antisocial personality disorder, a possible substance abuse disorder, likely some post-traumatic symptoms, and schizophrenia.
[13] Turning to the application itself, in order for a person to be found to be a dangerous offender, the Crown must satisfy one of the grounds set out in s. 753(1) of the Criminal Code. In the case of Mr. Minott, the Crown relies on the grounds set out in ss. 753(1)(a)(i) &(1)(a)(ii). Sections 753(1)(a)(i) & (ii) read:
On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied
(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing
(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour,
(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour,
[14] There is no issue here that the conviction for manslaughter constitutes a serious personal injury offence.
[15] I begin my consideration of this issue by noting that the dangerous offender provisions in the Criminal Code were substantially revised in 2008. As a consequence, the net that catches persons, and deems them to be dangerous offenders, is significantly bigger. That result is explained in R. v. Szostak (2014), 2014 ONCA 15, 118 O.R. (3d) 401 (C.A.) where Rosenberg J.A. said, at para. 54:
… 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.
The result of expanding the group of persons, who may be designated as dangerous offenders, is that the spectrum of risk associated with those persons is greatly extended.
[16] The first aspect under subsection (a)(i) is whether Mr. Minott has demonstrated a “pattern of repetitive behaviour”. There are at least five instances of violent behaviour, including the predicate offence. In 1997, Mr. Minott attacked a fellow student twice without warning, the second blow causing a large cut to the victim’s face. In 1998, Mr. Minott again attacked a fellow student without warning, this time cutting him in the face with box cutters. The wounds required thirty stitches. In 2005, Mr. Minott stabbed a man in a car with scissors, again for no apparent reason. Those wounds required twenty-one stitches. In 2007, Mr. Minott struck his employer in the face, when he was not looking. The blow caused significant injuries. And in 2011, there is the predicate offence that again occurred for no apparent reason.
[17] In all instances, serious injuries were inflicted on the victims. Also, in three of the five instances, Mr. Minott used a weapon. In addition, Mr. Minott has two further, but separate, weapons convictions, including one for possession of a loaded semi-automatic handgun.
[18] In my view, Mr. Minott’s repeated resort to violence that has caused serious injuries, taken together with the similarities between the offences, especially the lack of any forewarning of the assaults, shows the necessary pattern under subsection (a)(i). Over a period of fourteen years, the appellant has seriously injured four different people and killed a fifth. This pattern of behaviour began when Mr. Minott was fifteen and has continued. Further, he resorted to the use of weapons in three of the five offences.
[19] In terms of subsection (a)(i), the second aspect is that it is likely that the offender will repeat this type of conduct in the future. That requirement was expressed in the following terms in R. v. Hogg, 2011 ONCA 840, where Feldman J.A. said, at para. 40:
To summarize, the pattern of repetitive behaviour that includes the predicate offence has to contain enough of the same elements of unrestrained dangerous conduct to be able to predict that the offender will likely offend in the same way in the future.
[20] I have the report and the vive voce psychiatric evidence of Dr. Klassen, who was called by the Crown. Dr. Klassen was accepted as being an expert in the area of forensic psychiatry. Dr. Klassen administered three recognized tests for assessing the risk of someone re-offending.
[21] One was the Psychopathy Checklist-Revised test on which Mr. Minott scored 26 out of a possible 40 points. This score placed Mr. Minott at the 67th percentile. According to Dr. Klassen, this is a significant score and suggests difficulties with general and violent recidivism and treatment responsiveness.
[22] The second test was the Violent Risk Appraisal Guide. On that test, Mr. Minott’s score was 13. That score places Mr. Minott at the 81st percentile. Other individuals who achieved such scores re-offended violently at a rate of 58% within a ten year period. On this result, however, Dr. Klassen points out that it is based on the individual being treated for their psychotic illness. If Mr. Minott is not treated for his schizophrenia, Dr. Klassen’s opinion is that he is at a substantially greater risk of re-offending.
[23] The third test was the HCR-20 test. Mr. Minott scored between 28 and 31. Dr. Klassen characterized this score as moderately high. He noted though that this test has a tendency to overstate the risk because the data used is somewhat dated. Dr. Klassen did, however, find that this score confirmed the result of the VRAG test respecting the likelihood of re-offending.
[24] The defence accepts that, if Mr. Minott is untreated, he poses a likelihood of reoffending. However, the defence submits that, if Mr. Minott is properly treated, his possibility of reoffending does not then rise to the level of a likelihood. I do not agree. The tests employed by Dr. Klassen, at least with respect to the VRAG, assume that the person is being treated for their mental illness. Yet, even so, Mr. Minott scores at a level where his risk of reoffending violently is above 50%. More than 50% is a probability, not a possibility. A probability equates to a likelihood. I am therefore satisfied, beyond a reasonable doubt, that both requirements under subsection (1)(a)(i) are met.
[25] Given that conclusion, it is not necessary for me to address whether s. 753(1)(a)(ii) is also applicable, particularly the question whether the conduct at issue demonstrated a “substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour”.
[26] Given my conclusions, Mr. Minott must be declared a dangerous offender under s. 753(1)(a)(i).
[27] The issue then becomes what sentence is appropriate. Section 753(4) now provides that the court may impose an indeterminate sentence or impose a determinate sentence followed by a long-term supervision order or simply impose a determinate sentence. However, under s. 753(4.1), a sentence other than an indeterminate sentence, can only be imposed if “there is a reasonable expectation” that such a sentence “will adequately protect the public” against an offence of murder or other serious personal injury offence.
[28] On this latter point, I note that there is some issue whether the requirement of a reasonable expectation is more stringent than the former requirement of a reasonable possibility: R. v. M.L., 2015 ONCA 487 at para. 23.
[29] On that point, I accept that there is a difference between the two. The use of a different expression in the section, from what previously existed, would suggest that a change was intended. Further, the word “expectation” carries with a connotation of more than just a mere possibility. For example, the Oxford Dictionary of English defines “expectation” as “a strong belief that something will happen or be the case”. I accept therefore that something more than a mere possibility must exist.
[30] Dealing then with the sentencing options, imposing a determinate sentence, even with probation, would not address the risks that Mr. Minott poses to the public, given his mental health challenges.
[31] At the same time, however, I am not satisfied that an indeterminate sentence can be justified on the evidence before me.
[32] First, Mr. Minott can function in our society as his behaviour, between the five offences that I have referred to, demonstrates.
[33] Second, it also appears that Mr. Minott has not always been prescribed the proper dosage of medication and he has not, until recently, been on injectable medication.
[34] Third, the tests given to Mr. Minott suggest that his risk of reoffending is in the moderate, as opposed to high, range if he is being treated.
[35] Fourth, Dr. Klassen is equivocal as to whether a long-term supervision order is appropriate.
[36] There is no reason to believe that, if Mr. Minott remains on injectable medication and his compliance with that treatment is subject to supervision, Mr. Minott will not comply with the treatment program.
[37] I note, on the issue of compliance, that Mr. Minott appears to have always had a good record of attending for his probation/parole appointments.
[38] Lastly on this point, Mr. Minott appears to have family support available to him that should also assist in ensuring his compliance with the terms of a long term supervision order.
[39] The Crown contends that a reasonable expectation cannot be met in this case because there is uncertainty whether Mr. Minott’s compliance with medical treatment will, in fact, be monitored.
[40] Why this apparent failure of supervision went on is not clear.
[41] I will make two observations in response to the Crown’s concern. One is that courts cannot be compelled to impose higher and more stringent penalties on an offender simply because Governments have failed to properly resource the full sentencing regime that Parliament has mandated.
[42] The other observation is that I am entitled to assume that a long term supervision order will be given the highest priority in monitoring.
[43] Based on the evidence, I am satisfied that ensuring a proper treatment program for Mr. Minott’s schizophrenia, coupled with counselling for anger management and related issues, will reduce the likelihood of reoffending and will adequately protect the public.
[44] The final issue is the length of the supervision order.
[45] I believe that those facts justify the maximum length for the supervision order in this case.
[46] Finally, there is the issue of the length of the determinate portion of the sentence that the long-term supervision order will follow.
[47] Mr. Minott has spent four years, four months and twenty-five days in pre-sentence custody.
[48] A sentence of time served does not adequately address the sentencing objectives of denunciation and deterrence.
[49] Allowing for the fact that Mr. Minott’s conduct was motivated by his mental illness, a significant term of imprisonment is still necessary.
[50] Balancing all of the relevant factors, I conclude that a sentence of ten years is the appropriate sentence to be imposed.
[51] Mr. Minott, will you please stand.
[52] On the offence of manslaughter, I sentence you to a term of imprisonment of three years and five months. This sentence accords you a credit of six years and seven months for the time that you have spent in pre-sentence custody for a total effective sentence of ten years.
[53] Having found that you are a dangerous offender, the sentence is to be followed by an order that you are to be supervised in the community for a period of ten years in accordance with the provisions of the Criminal Code and the Corrections and Conditional Release Act.
[54] In addition, there will be an order requiring you to provide a DNA sample for the DNA databank but since your DNA is already on that databank that order will not be executed save for the taking of fingerprints.
[55] There will also be an order under s. 109 of the Criminal Code prohibiting you from the possession of weapons for life.
NORDHEIMER J.
Released: July 3, 2015
COURT FILE NO.: 14-40000398
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
SIMEON MINOTT
REASONS FOR DECISION
NORDHEIMER J.
RELEASED: