ONTARIO
SUPERIOR COURT OF JUSTICE
Toronto Region
COURT FILE NO.: 13-10000501
DATE: 20150911
B E T W E E N:
HER MAJESTY THE QUEEN
D. Boulet & R. Law, for the Crown
- and -
RICARDO MORRISON
R. Warren Q.C. & D. Bloomberg, for the defence
HEARD: July 9 & September 10, 2015
Nordheimer J. (orally):
[1] On May 9, 2014, Mr. Morrison pleaded guilty to one count of manslaughter and four counts of assault causing bodily harm. Thereafter, the Crown gave notice of its intention to seek to have Mr. Morrison declared a dangerous offender. An assessment of Mr. Morrison 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] In terms of the current convictions, as set out in the admitted facts read in at the time of Mr. Morrison’s plea, the victims represent five of nine different individuals that were subject to unprovoked attacks by Mr. Morrison. All of these persons were simply and suddenly assaulted as they went about normal day to day activities. The attacker, while disguised, would approach the victims from behind, strike the victims multiple times through blows and kicks and then simply walk or ride away. Of some importance is the fact that each of the victims had some connection with Mr. Morrison in the sense that either they shared residence in the same rooming house or they lived in close proximity to Mr. Morrison in the same area of Parkdale.
[3] In most instances, the attacks caused bruising, cuts and other serious, but not life threatening, injuries. Unfortunately, in the case of George Wass, the attack caused injuries that were more serious and eventually lead to his death. Mr. Wass suffered fractures to five of his left ribs. Three of those ribs were completely broken and had damaged blood vessels in his chest wall that caused blood to slowly enter his chest cavity. While Mr. Wass received medical attention at a hospital for these injuries, that treatment was apparently inadequate as, unfortunately, after his release from hospital, Mr. Wass died of internal bleeding. Mr. Wass was sixty-two years old and he had very limited functioning. Perhaps because of those limitations, Mr. Wass may not have had the necessary awareness of the extent and consequences of his injuries that should have lead him to seek further medical attention, after he was released from hospital.
[4] Mr. Morrison is currently thirty-five years old. He has only a single prior conviction for obstructing justice when he was seventeen. In terms of his background, Mr. Morrison was born in Jamaica. He came to Canada when he was twelve. His father separated from the family when Mr. Morrison was seven or eight and moved to the United States. It appears that Mr. Morrison has maintained some contact with his father. Mr. Morrison has a sister and three half-siblings. There is nothing particularly problematic in terms of Mr. Morrison’s upbringing. His mother provided for him and his siblings. Mr. Morrison went to school and apparently performed well enough that he completed grade twelve. He is, though, three credits shy of his high school diploma.
[5] Mr. Morrison has worked at different jobs since he was a teenager. He reports that he has been on the Ontario Disability Support Program for a number of years, the reason for which is not clear. Mr. Morrison is not married but he has been in seven or eight serious relationships. There are no children from any of those relationships.
[6] There is some history of Mr. Morrison having problems controlling his anger. There is also some history of Mr. Morrison hearing voices. While Mr. Morrison indicates that he has been given medication for schizophrenia at different times, there does not appear to have been any definitive diagnosis that Mr. Morrison actually suffers from schizophrenia. Also, any medication given to Mr. Morrison for this illness appears to have been sporadic.
[7] I should explain the delay of more than a year in the sentencing of Mr. Morrison. As the facts underlying the offences would suggest, there were concerns about Mr. Morrison’s mental health arising from these random and violent attacks. Mr. Morrison was evaluated by three different psychiatrists – Dr. Woodside, Dr. Gojer and Dr. Pallandi, mainly for the purpose of determining whether Mr. Morrison could be held criminally responsible for his behaviour. I believe it is fair to describe those evaluations as being inconclusive in terms of determining what, if any, mental illness may be driving Mr. Morrison’s conduct. There is the distinct possibility that Mr. Morrison does suffer from a major mental illness but, unfortunately, no diagnosis has risen above establishing just a possibility. This result may be due, at least in part, to the attitude that Mr. Morrison has sometimes demonstrated to the assessment process. What I should note, though, is that the evaluations of Mr. Morrison do not raise any concern regarding either his fitness or his responsibility for the acts that are of concern here.
[8] 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. Morrison, 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,
[9] There is no issue here that the conviction for manslaughter constitutes a serious personal injury offence.
[10] 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, has been made significantly larger. 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.
One consequence of expanding the group of persons, who may be designated as dangerous offenders, is, however, that the spectrum of risk that may be associated to any of those persons is greatly extended.
[11] The first requirement under subsection (1)(a)(i) is whether Mr. Morrison has demonstrated a “pattern of repetitive behaviour”. I have no difficulty in concluding that this requirement is made out. There are nine separate instances of violent behaviour, including the five offences to which Mr. Morrison pleaded guilty. These nine instances were very similar in nature and, with the exception of the first incident, they occurred over a period of only four months. In all instances, again save for the first one, serious injuries were inflicted on the victims. I do note that, while there is no limitation on the word “injury” as it is used in this subsection, its juxtaposition with the word “death”, would strongly suggest that the required likelihood relates to causing injury of a serious or severe nature. That is, not any form of injury would satisfy the requirements of the subsection.
[12] In my view, Mr. Morrison’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, establishes the necessary pattern under subsection (1)(a)(i).
[13] The second requirement, under subsection (1)(a)(i), is that it is likely that the offender will cause “death or injury to other persons […] through failure in the future to restrain his or her behaviour”. That requirement was expressed in the following terms in R. v. Hogg, 2011 ONCA 840, [2011] O.J. No. 5963 (C.A.) 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.
[14] I have the report, along with the vive voce evidence of Dr. Woodside, who was called by the Crown. Dr. Woodside was accepted as being an expert in the area of forensic psychiatry. Dr. Woodside administered two recognized tests for assessing the risk of someone re-offending.
[15] One was the Psychopathy Checklist-Revised test on which Mr. Morrison scored 15.8 out of a possible 40 points. This score placed Mr. Morrison between the 21st and 24th percentile. According to Dr. Woodside, this score would be considered relatively low in terms of risk for re-offense.
[16] The second test was the Violent Risk Appraisal Guide. On that test, Mr. Morrison’s score was minus 5. That score places Mr. Morrison at the 38th percentile. Other individuals who achieved such scores re-offended violently at a rate of 37% within a ten year period. Dr. Woodside said that this score represented an expected probability of violent recidivism between 24% and 48% or a moderate risk.
[17] In referring to these risk assessments, I appreciate the point that Dr. Woodside made that his profession has its most difficult task when it comes to predicting the risk of reoffending when a person scores in the middle range for these tests. Obviously, if a person is at either the high or low end of the range of results, it is easier to arrive at a prognosis. However, the mere fact that the effort is made more difficult for persons in the middle of the range does not result in the default decision being that the risk of reoffending is made out. If there is a doubt about the matter, then the necessary component of the test is not made out to the requisite standard of proof.
[18] The Crown points to the decision in R. v. Lyons, 1987 25 (SCC), [1987] 2 S.C.R. 309, especially at para. 94, as support for its contention that the acts themselves can establish the likelihood of future behaviour. I do not read the decision in Lyons as laying down any such broad proposition. What I read Lyons as saying is that the evidence does not have to establish a certainty in terms of predicting the future but it still requires the establishment of a likelihood of something happening. In considering whether that likelihood is made out, all of the evidence is relevant, including the psychiatric evidence. I draw that conclusion, at least in part, from LaForest J.’s reliance, in that same para. 94, on the reasons in R. v. Knight, [1975] O.J. No. 2693 (H.C.) where Morden J. said, at p. 356 in part:
… but I do refer to the quality and strength of the evidence of past and present facts together with the expert opinion thereon, as an existing basis for finding present likelihood of future conduct. [emphasis added]
[19] The expert evidence is therefore part of the mix in attempting to discern the presence or absence of a likelihood that some future event will occur. In this case, that expert evidence does not support a likelihood of Mr. Morrison’s future conduct but merely a possibility of that conduct. While I accept that the number and randomness of these attacks naturally raises concerns about repetition, I also note that these attacks were grouped in a single four month period in the thirty plus years of Mr. Morrison’s lifetime.
[20] I will also observe that, if the Crown’s position is correct that the repetitive conduct can, by itself, establish the requisite likelihood, then it would follow that, once the Crown establishes that pattern of repetitive behaviour they will have, through the same evidence, established the likelihood. That result would essentially render the second part of the test in 1(a)(i) redundant.
[21] All of that said, I do not discount that there may be a case where the conduct of the accused person is of an order of magnitude that it could provide, on its own, evidence of the likelihood of future events. I just say that this is not that case. While I recognize the concern that arises from the random nature of Mr. Morrison’s conduct, I cannot objectively and dispassionately conclude that it is probable that the conduct will be repeated, particularly in light of the psychiatric evidence.
[22] Based on all of that, I am unable to conclude, beyond a reasonable doubt, that the second requirement is met. The word “likelihood” used in the subsection and the word “likely” used in the above reference from Hogg, both connote a degree of risk rising to at least a probability, not a mere possibility. The evidence does not support a finding of a probability regarding Mr. Morrison’s future conduct.
[23] I turn then to subsection (1)(a)(ii). My conclusion regarding a pattern of behaviour applies equally to the first requirement under this subsection since the behaviour of Mr. Morrison, that is in issue, is clearly aggressive behaviour. The second requirement, under (1)(a)(ii), is that the conduct must show “a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour”.
[24] In my view, the nature of the assaults undertaken by Mr. Morrison, in all but perhaps the first instance, demonstrate that degree of indifference, viewed on an objective basis. Mr. Morrison assaulted these individuals both with his fists and with his feet. They were punched and kicked multiple times. It is, to me, self-evident that Mr. Morrison was indifferent to the “reasonably foreseeable consequences” of his actions, as the death of Mr. Wass would clearly establish.
[25] The one complication on this issue is whether Mr. Morrison’s conduct arose, not from an apparent indifference to the consequences of his actions, but rather from a major mental illness. If it did, then it would provide an alternative explanation for Mr. Morrison’s actions, that is, his actions would not be the result of his indifference to the consequences of his actions but, rather, would be the result of his illness that, in turn, might make him incapable of appreciating the consequences of his actions. It does seem to me that an offender, who suffers from a major mental illness, might well not understand the consequences of his actions as a consequence of the impairment that results from that mental illness. In that situation, the second requirement would not be made out.
[26] I have difficulty concluding that that is the situation in Mr. Morrison’s case, however, because (i) Mr. Morrison has not been definitively diagnosed as suffering from a major mental illness and (ii) Mr. Morrison’s own self-report of the incidents, along with the observations of outside observers, do not demonstrate that his actions are the apparent result of the presence of a psychosis.
[27] I earlier noted that Mr. Morrison has never been diagnosed as suffering from a major mental illness. Dr. Woodside could not rule out a diagnosis of schizophrenia but, at the same time, he could not definitively make such a diagnosis. Dr. Woodside pointed to the lack of collateral information to confirm or rebut Mr. Morrison’s self-report and he expressed concern regarding that self-report in terms of its consistency and accuracy. Dr. Gojer apparently expressed some preliminary opinion that Mr. Morrison may suffer from paranoid schizophrenia but this too was not a definitive diagnosis. The end result is that there is no evidentiary foundation upon which I could conclude that Mr. Morrison’s understanding of his actions was warped by a mental illness as opposed to being the result of his indifference to the consequences of his actions.
[28] I am satisfied that the requirements of s. 753(1)(a)(ii) are made out and, consequently, Mr. Morrison must be declared a dangerous offender. I note, on that point, that there is no longer any discretion in a judge not to find a person to be a dangerous offender, if the person fits one of the definitions under s. 753: Szostak at para. 36.
[29] 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), once a dangerous offender designation is made, 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.
[30] In my view, there are sufficient concerns regarding the genesis of Mr. Morrison’s actions that a determinate sentence alone, even with the maximum length of probation that could be attached to it, would not satisfy the requirement for the adequate protection of the public. In that regard, I note that Dr. Woodside was of the view that strict supervision of Mr. Morrison for a lengthy period of time was advised.
[31] Dealing then with whether there is a reasonable expectation that a determinate sentence, coupled with a supervision order, will adequately protect the public, I have considered the following factors.
[32] First, unlike the situation in most of these types of applications, I repeat that Mr. Morrison has not been conclusively diagnosed with a major mental illness. The occasional treatments that Mr. Morrison has received for schizophrenia, while in custodial facilities, have been not only been inconsistent, there has been no effective follow-up to determine if the medication was achieving the desired results. In particular, Mr. Morrison has not been subjected to the different treatment regimes that are available to address schizophrenia, assuming he suffers from that mental illness, and therefore the positive benefits of proper treatment have yet to be effectively applied to Mr. Morrison.
[33] Second, and as I have already observed, the tests given to Mr. Morrison suggest that his risk of reoffending is in the moderate, as opposed to high, range.
[34] Third, Dr. Woodside is “modestly” optimistic that Mr. Morrison can be managed in the community, if the appropriate restrictions are put into place. Dr. Woodside is of the view that Mr. Morrison has some degree of insight into the possibility that he is suffering from a major mental illness. In that regard, there do not appear to be any issues with Mr. Morrison’s intellectual capability to understand and address any illness. There is also no history of re-offending after treatment of the type that is referred to in R. v. Sawyer, 2015 ONCA 602. Dr. Woodside offered a list of the conditions that he would see as necessary for the management of Mr. Morrison once his custodial sentence is completed.
[35] The central concern here is to identify if Mr. Morrison is suffering from a major mental illness and, if so, what illness it is. Without such a diagnosis, it is very difficult to embark upon a proper treatment plan. Thus, it is evident that Mr. Morrison needs to be subject to supervision, not only to ensure that a diagnosis is made one way or the other, but also to allow time for the appropriate treatment to be started and monitored, if a major mental illness is diagnosed. If it should turn out that Mr. Morrison does not suffer from a major mental illness, supervision is still necessary to address other evident concerns, chief among them being anger management.
[36] I say all of that against the backdrop that Mr. Morrison is still evaluated at being at only a moderate risk of reoffending. Based on that level of risk, and the evidence of Dr. Woodside as to the likelihood of managing Mr. Morrison in the community, I am satisfied that there is a reasonable expectation that a determinate sentence coupled with a long term supervision order will adequately protect the public. On that point, while I recognize that the “reasonable expectation” standard sets the bar fairly high, at the same time, it does not require that all risk must be eliminated nor does it require any form of guarantee.
[37] That then raises the issue as to the appropriate length of the supervision order. In this case, it is necessary for Mr. Morrison to be properly evaluated and diagnosed. Assuming a major mental illness is identified, then the proper treatment plan has to be found and implemented. In addition to those considerations, there is a need to address other possible sources for Mr. Morrison’s conduct including, most obviously, anger management. All of those steps will take time. Among other things, the nature and type of medical intervention will have to be evaluated and adjusted. I believe that those facts justify the imposition of the maximum length for the supervision order in this case.
[38] Finally, there is the issue of the length of the determinate portion of the sentence that the long-term supervision order will follow. Crown counsel submitted that a term of imprisonment of ten or more years would be the appropriate sentence to impose, prior to any credit for presentence custody. The defence did not offer a sentence per se but did suggest that a remaining sentence of two years less a day, after credit for pre-sentence custody, would be appropriate.
[39] Mr. Morrison has spent just shy of four years and five months in pre-sentence custody. He is entitled to a credit of six years and eight months for that time against any sentence to be imposed.
[40] In fixing on the appropriate sentence I have taken into account the particular facts of this case including that Mr. Morrison has only a minor prior criminal record. I have taken into account that Mr. Morrison’s conduct may have been motivated by a mental illness although, as I have already said, that has not been definitively determined. At the same time, I have taken into account that the attack on Mr. Wass was unprovoked, it was vicious and it was committed on a person who was particularly vulnerable. Notwithstanding that the death of Mr. Wass was contributed to by less than stellar medical treatment, it does not change the fact that Mr. Morrison’s conduct resulted in the death of a member of our community for no reason. A significant term of imprisonment is still necessary to reflect the seriousness of the offence. As Watt J. said, in R. v. Foy, [2002] O.J. No. 4004 (S.C.J.) at para. 77:
In cases of unlawful violence against others, especially when accompanied by a fatality, denunciation asserts a substantial influence on the sentencing decision.
[41] Balancing all of the relevant factors, I conclude that a sentence of ten years is the appropriate sentence to be imposed. This would leave a period of three years and four months to be served.
[42] Mr. Morrison, will you please stand.
[43] On the offence of manslaughter, I sentence you to a term of imprisonment of three years and four months. This sentence accords you a credit of six years and eight months for the time that you have spent in pre-sentence custody for a total effective sentence of ten years. On each of the assault causing bodily harm convictions, I sentence you to time served plus one day concurrent.
[44] 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.
[45] There will be an order requiring you to provide a DNA sample for the purpose of the DNA databank.
[46] 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: September 11 , 2015
COURT FILE NO.: 13-10000501
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
RICARDO MORRISON
REASONS FOR DECISION
NORDHEIMER J.
RELEASED: