Her Majesty the Queen v. Danny Beharri
COURT FILE NO.: CRIMJ(P) 190/13 DATE: 2015-09-28 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
A. S. Latimer, for the Crown
- and -
DANNY BEHARRI
J. Pyzer, for the Defence
HEARD: June 2-4, 10-11, 2015
REASONS FOR SENTENCE/DANGEROUS OFFENDER APPLICATION
HILL J.
Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding by the Honourable Justice S. Casey Hill directing that the identity of the complainant and S.M. and any information that could disclose such identity, shall not be published in any document or broadcast or transmitted in any way
TABLE OF CONTENTS
Para. No.
INTRODUCTION............................................................................................. 1-3
PREDICATE AND RELATED OFFENCES Count #1 – Assault Causing Bodily Harm...................................................... 6-8 Count #3 – Aggravated Assault................................................................... 9-12 Count #4 – Assault With a Weapon............................................................ 13-16 Count #12 – Breach Probation................................................................... 13-16 Count #7 – Sexual Assault With a Weapon................................................ 17-22 Count #9 – Assault Causing Bodily Harm................................................... 17-22 Count #10 – Threaten Bodily Harm............................................................ 17-22 Count #11 – Breach Recognizance............................................................ 17-22
EARLY CRIMINAL HISTORY....................................................................... 23-30
OTHER ASSAULT CONVICTIONS............................................................... 31-32
DOMESTIC RELATIONSHIP WITH S.M....................................................... 33-47
CORRECTIONAL RECORDS INFORMATION............................................... 48-55
INCARCERATION AT OCI........................................................................... 56-66
COMMUNITY RELEASE AFTER OCI........................................................... 67-72
THE PSYCHIATRIC ASSESSMENTS Introduction.............................................................................................. 73-76 Cognitive and Education Deficits............................................................... 77-85 Criminal History............................................................................................ 86 OCI Treatment/Follow-up on Release........................................................ 87-95 Psychiatric Diagnoses............................................................................ 96-110 Risk Assessment.................................................................................. 111-116 Aging As An Independent Variable......................................................... 117-119 Risk Management................................................................................. 120-135
CORRECTIONS CANADA INFORMATION............................................... 136-150
THE OFFENDER’S SECTION 726 CODE STATEMENT................................... 151
POSITION OF THE PARTIES The Prosecution.................................................................................... 152-162 The Defence......................................................................................... 163-173
ANALYSIS The Part XXIV Application General Principles............................................................................. 174-209 The Determination............................................................................. 210-231 The Incarceration Issue General Principles............................................................................. 232-239 The Fit Sentence............................................................................... 240-255
CONCLUSION................................................................................................ 256
INTRODUCTION
[1] Daniel Beharri is a serial abuser of intimate domestic partners. The abuse has included physical and sexual violence.
[2] Daniel Beharri is a dangerous offender.
[3] The issue to be determined is whether he should be sentenced to indeterminate imprisonment or to a finite sentence of incarceration followed by a long-term offender supervision order (LTSO).
PREDICATE AND RELATED OFFENCES
[4] In the spring of 2012, the offender was residing with A.S. in the basement of her father’s home before the couple moved to their own rented basement apartment. They cohabited in an intimate relationship along with A.S.’s special needs child. The offender was then subject to a s. 811 Criminal Code recognizance as well as a probation order.
[5] During the period of several months, the offender committed the eight offences in respect of A.S. for which he was tried and found guilty by this court. Because these crimes were described in detail in the court’s earlier reasons (2013 ONSC 7753), only summary reference follows.
Count #1 – Assault Causing Bodily Harm
[6] One evening in a 30-day period ending February 3, 2012, the offender returned home late. An argument ensued with A.S. The offender punched the victim in the face. She instantly experienced pain and was spitting blood. The offender almost immediately hugged A.S. and tried to comfort her.
[7] A.S. explained to her father the bruising and swelling to her face as having been the result of a fall. The victim wanted to remain in a relationship with the offender.
[8] Some days after the assault when A.S. was at the hospital for treatment of her young son, she sought medical attention for the pain to her jaw. She related to medical staff that she injured herself in a fall. Examination revealed a fractured jaw. Following an operation, A.S.’s jaw was wired shut and she was prescribed medication.
Count #3 – Aggravated Assault
[9] On May 10, 2012, A.S.’s birthday, the offender and A.S. were in her father’s home. When the offender spent some time remaining separate and aloof, an argument developed. A break-up was discussed. Frustrated, the offender began packing to leave. He then departed.
[10] Sometime later in the evening, the offender returned. After A.S. answered the door, the argument continued. At a point, the offender dragged A.S. to the backyard where he punched her in the ribs and abdomen. After she fell to the ground unable to breathe, and as she tried to protect herself, she was kicked and punched to her back and sides.
[11] After the assault, A.S. went to the bathroom. There was blood in her urine. She was in pain for days. The victim told her father that she injured herself in a fall on the stairs.
[12] On May 12, 2012, the victim was admitted to hospital where she remained until May 14. As a result of the assault, A.S. had a lacerated right kidney, minor spinal fractures, and bruising. During this time, the offender disappeared for about a week. The victim missed the offender and though she considered their relationship to have been scarred, she still loved him.
Count #4 – Assault With a Weapon
Count #12 – Breach Probation
[13] During a 2-month period ending July 31, 2012, when A.S. and the offender resided in their own apartment, their relationship deteriorated. One evening when the offender returned home late, with A.S. suspecting he was out taking drugs, the couple argued. When the offender “snapped”, A.S. ran from the apartment and hid in some bushes outside the building.
[14] A.S. observed the offender come out to the street to look for her. At a point, she ran inside and locked the building and apartment doors. When the offender returned, he kicked in both doors and physically dragged the victim to her son’s bedroom. As A.S. was on the floor, he stomped on her a couple of times.
[15] The offender then reversed the lock on the bedroom door locking A.S. inside for about an hour. When the offender unlocked the room, he had returned with a large knife. The offender inserted the tip of the knife blade into one of A.S.’s nostrils. He later tossed the knife in the victim’s direction from a distance of seven or eight feet. He then dumped a bucket of mop water and Pine-Sol over A.S.’s head.
[16] At the time, the offender was subject to a probation order prohibiting him from owning, carrying or possessing a weapon.
Count #7 – Sexual Assault With a Weapon
Count #9 – Assault Causing Bodily Harm
Count #10 – Threaten Bodily Harm
Count #11 – Breach Recognizance
[17] On or about July 13, 2012, after the offender returned home late at night, he woke A.S. by dragging her out of the bed where she was sleeping with her young son. Dragged down the hall by her legs, the offender accused A.S. of cheating on him. He was angry and frustrated threatening to “fuck [her] up” while saying “today will be your last day”.
[18] A.S. denied doing anything, professed her love for the offender and asked why he was acting in this way. The offender threatened to hurt her son if she screamed. The offender beat the victim repeatedly hitting and punching her in the face and ribs and abdomen. As A.S. attempted to cover up to protect herself, she repeatedly stated that she loved the offender.
[19] The offender, who was subject to a s. 811 Criminal Code recognizance to keep the peace and be of good behaviour, obtained a baseball bat, ripped A.S.’s underwear off, and extended the bat toward her vagina telling the victim that she was a slut and threatening to put the bat in her. A.S. stated: “Stop. Why are you doing this? It won’t fit in there”.
[20] The offender then informed A.S. that either the bat was going in or he would burn her on the stove – it was her choice. She chose the stove. A.S. was taken to the kitchen and ordered to remove her shirt. The offender turned the stove on and, with his hand on the victim’s back, pushed her forward. A.S. felt the heat of the burner. As her right breast neared the red-hot burner, she tried to push back again asking the offender why he was behaving in this way.
[21] Suddenly, the offender stopped. He said, “Oh my God. I’m so sorry.” He hugged the victim.
[22] The victim did not seek medical attention. Her ribs and body were sore and she had extensive bruising and scratches. Three to four weeks later, A.S. disclosed the ongoing abuse to a friend.
EARLY CRIMINAL HISTORY
[23] Mr. Beharri’s experience with the criminal justice system began as a 13-year-old. In the years 1997 to 2003, he was before the Youth Court on ten occasions charged with a variety of offences including theft, possession of break-in instruments, break and enter, failure to attend court, and failure to comply with a Youth Court disposition. Many of the property-related crimes were committed along with other youths. Findings of guilt attracted probation or short terms of open or closed custody.
[24] During this time period, a series of Youth Court Pre-Disposition Reports detailed the offender’s early history including the following information.
[25] The offender’s parents emigrated from Guyana. When he was aged 8 or 9, his parents separated and subsequently divorced. The offender’s father had abused alcohol and was physically aggressive toward the offender and his mother.
[26] After his parents’ separation, the offender resided with his mother for a time in the Jane/Finch area of Toronto. He generally refused to abide by his mother’s house rules. He fell in with negative peers. The offender thereafter lived with his father before moving out to reside with a friend of his father. There was little parental supervision. In 1999, a probation officer observed in respect of the 15-year-old that in the structured environment of custody he seemed to respond. By this age, the offender had begun to consume alcohol “as a form of escaping his anger”.
[27] In terms of schooling, by grade 6 the offender was placed in special reading and writing classes as he struggled with these subjects. After the offender was suspended in 1999 from Westwood Secondary School for fighting, he was enrolled in the Malton Alternative Education Centre where he was absent about twenty-five percent of the time. It appears that the system pushed the offender along to grade 10. A July 19, 2000 Pre-Disposition Report observed that the offender “lacks direction or discipline” and has “done basically as he pleases for years”.
[28] By 2001, the offender was no longer in school. The 17-year-old acquired some part-time work.
[29] As a 19-year-old, in June and in September of 2003, the offender was before adult court for the first time to be sentenced respecting four robberies. In two variety store robberies by the offender and one or more others, proprietors were threatened with a knife. No weapons were employed in the other two robberies. In September, the offender was sentenced to 14 days’ custody and 2 years’ probation after credit for 25 months’ pre-sentence custody.
[30] In February, 2004, the offender appeared before the court charged with drug possession and breach of probation. The offender was found with a crack pipe and in the company of Jason Allarco who he was prohibited from being with from long-time criminal association. A report to the court stated that “A lack of adult supervision appears to have negatively influenced the subject’s response to community supervision and his unstructured living arrangements”.
OTHER ASSAULT CONVICTIONS
[31] In September 2011, as a 22-year-old, the offender pled guilty to assault in relation to pushing a neighbour to the ground during an argument. With credit for 80 days of presentence custody, sentence was suspended with 12 months’ probation.
[32] On April 20, 2007, the 23-year-old offender pled guilty to assault causing bodily harm. The victim was the offender’s cousin. What began as a verbal argument and a perceived insult to the offender’s family, escalated with the offender punching the victim cutting his face and breaking his nose. The participants had been drinking alcohol. With credit for 36 days of presentence custody, the offender was sentenced to 18 days’ incarceration and 2 years’ probation with a term recommending attendance for treatment and counselling.
DOMESTIC RELATIONSHIP WITH S.M.
[33] In June of 2006, as a 22-year-old, the offender was convicted after pleading guilty and sentenced for uttering a threat to cause death, assault, and failure to comply with a recognizance and a Youth Court disposition. He was sentenced to one day of incarceration concurrent on the charges with credit for 45 days of presentence custody together with 18 months’ probation. The context for the offences was a domestic relationship with S.M. The couple had an 18-month-old daughter.
[34] On September 11, 2005, as a 21-year-old, the offender and S.M. argued within their residence. During the argument, the offender grabbed S.M. by the hair and punched her in the face. The victim fell to the floor. During an argument on April 8, 2006, the offender grabbed S.M. and banged her head against a wall. When, on April 14, S.M. told the offender she wanted to end their relationship because of his abuse, the offender threatened that if she did, he would kill her. At this time, the offender, who was employed by an agency, was not reporting as required by a 2003 probation order and was failing to reside with a surety as required by a recognizance. Defence counsel submitted to the court that, “He’s advised…he doesn’t want to go down the same path that his father did in terms of being in relationships that…are abusive”. It was further submitted that the offender was prepared “to deal with domestic issues…so that that type of offence is not repeated”. Speaking to the sentencing court directly, the offender indicated that his misconduct had been “influenced by alcohol”. He stated, “I never want to do this kind of thing again”.
[35] A term of the probation order of the sentencing court was for the offender to take such counselling as deemed appropriate by his probation officer such as anger management and a partner assault program such as PARS.
[36] On November 25, 2008, as a 24-year-old, the offender pled guilty to breaches of recognizance. Prohibited by an Ontario recognizance from contacting S.M., in June of 2008 the offender travelled to Nova Scotia where S.M. had taken up residency. He missed his daughter. He communicated with S.M. who agreed to open contact if he took counselling. At a point, S.M. contacted the police and the offender was arrested. He again contacted S.M. while in custody. The offender was sentenced to time served with credit for 140 days of presentence custody.
[37] On February 12, 2009, still 24 years of age, the offender pled guilty to breach of recognizance and two counts of breach of probation. He was sentenced to concurrent terms of 15 days’ incarceration with credit for 109 days’ presentence custody. The offender had failed to report on an Ontario probation order as required with his travel to Nova Scotia to see his daughter. The offender informed the court:
I just wanted to the best thing for her, you know, even though me and her mom had differences, hopefully in the future we can work it out. If not, there’s other ways I can see my daughter.
[38] On September 21, 2009, as a 25-year-old, the offender pled guilty to two charges of sexual assault as well as forcible confinement and choking in order to commit sexual assault. The victim was S.M. The offender was given a global sentence of 2 years less 1 day of incarceration after credit for 22 months’ presentence custody, to be followed by 3 years’ probation. By December of 2007, the cohabiting relationship of S.M. and the offender was deteriorating with financial problems and the offender’s use of crack cocaine. The offender was taking money from the couple’s joint bank account to support his addiction.
[39] On December 1, 2007, the couple argued. The offender dragged S.M. to the bedroom and barricaded the door with a dresser. He armed himself with a knife which he waved at the victim. He threatened to kill her or to make her kill herself. He then forced S.M. to write a letter turning over sole custody of their daughter to him. S.M. wrote the letter but refused to sign it. The offender threw the victim to the floor and struck her face with his hand causing her lip to bleed. The victim was kicked in the stomach and whipped across the knees and legs with a coat-hanger causing bruising. When the offender demanded that S.M. remove her clothing, she complied while begging to be released. The offender demanded sex. The victim said, “No”. She was then raped. The offender ejaculated. He then demanded the victim’s bank card threatening to beat her if she did not surrender the card and her PIN. Fearing for her continued safety, S.M. complied.
[40] On December 2, 2007, the offender told S.M. that he wanted sex. When she refused, the offender became angry. He placed S.M. in a headlock and dragged her to the bedroom. On the bed, the offender choked the victim for about a minute to the point where she could not breathe. She felt that she might die. When the offender stopped, she gasped for breath. She was then raped. Afterward, S.M. experienced neck soreness.
[41] Although defence counsel informed the sentencing court that the offender denied a crack cocaine addiction, the PSR author recorded that S.M. reported that alcohol and crack cocaine were problematic and that the offender was on crack cocaine on the occasions when she was sexually assaulted. The PSR stated that the offender identified his drug use as having impacted on his ability to hold full-time employment and that substance use increased after his best friend was murdered. The report also recorded the offender as saying, “I should have got counselling”, and that he “does not cope well with feelings of stress, frustration and anger”, that he loved S.M. but tried to control her, and that when he experienced negative feelings he bottled them up and then “exploded”. The offender further maintained that he thought he required a residential treatment program for substance abuse.
[42] Some of the offences committed against S.M. were committed while the offender was enrolled in the PARS program in 2007. The PSR author recorded the offender as saying that he did not learn anything from the program and that the facilitator did not appear to know what was going on or what he or she was talking about. The PSR author considered that, despite some recognition of the impact his actions had had on S.M., the offender did not accept full responsibility for his behaviour and “expressed some ideas indicative of sexual entitlement”. With sporadic, short-term employment, the offender’s free time was viewed as “plentiful and unstructured”.
[43] The PSR author was “guarded” respecting the offender’s level of motivation for treatment:
While the subject has not been previously convicted of a sexual offence, concerns remain regarding his frequent use of pornography, his impersonal and high risk sexual lifestyle and self-reported high sex drive, all of which are suggestive of issues with sexual self-regulation. The subject has also presented attitudes supportive of sexual offending and has intimacy deficits, which are indicators of risk and if left unaddressed could result in recidivism. Therefore it is recommended that the subject participate in a formal sexological assessment and phallometric testing to rule out any deviant sexual preferences (particularly a rape preference).
Due to this serious nature of these offences it would appear that the subject would benefit from participating in treatment.
This writer discussed with the subject some of the treatment options that may be available to him should he be incarcerated and he presented as favourable. This write however, remains guarded with respect to his level of motivation to seek and actively participate in treatment, given he has failed to do so when provided the opportunity in the past.
Should the Court be considering a term of incarceration as an appropriate sentence, the following is information on the nature of treatment available in the provincial correctional system. Treatment programs regarding sexual offending, domestic violence and addictions are offered at the Ontario Correctional Institute in Brampton, Ontario. In order to be considered suitable for treatment at OCI offenders have to take responsibility for their offences and realistically acknowledge problem areas. Treatment at OCI is primarily offered in a group format, so offenders must be prepared to work with their peers. Psychiatrists and psychologists are available and conduct various assessments and may conduct individual sessions with offenders if warranted. Offenders appealing their sentence are not considered for treatment at OCI and offenders must have a minimum of eight months of their sentence available to complete the treatment program in full.
[44] The PSR recommended a number of conditions for any period of community supervision including that he:
Attend and actively participate in assessment/treatment/counseling as directed by probation officer. Sign any releases necessary to allow the Probation Officer to monitor your progress. Attend all sessions. Provide written proof of completion to your Probation Officer.
[45] In the September 2009 sentencing hearing before Durno J., the offender spoke directly to sentence stating:
I’d like to apologize to the mother of my child for all the stuff that I did to her and also I’d like to apologize to the Court for taking some time in my case; and I also would like to apologize to my parents for the damage and cost that I caused them and--I'm a young man. I have- -I have the potential to change. Most of my time I did drugs and that’s when I messed up my whole life. I would like the chance to go to a rehab. where I can benefit myself to better myself so when I come outside I can do things good and not the wrong way, but the right way.
[46] The sentencing court endorsed a strong recommendation that the offender serve his incarceration at the Ontario Correctional Institute (OCI) and “receive assessments and counselling for drug and alcohol abuse, domestic violence and sexual offending”. A condition of the 3-year probation order was that the offender “take counselling as directed for drug and alcohol abuse, domestic violence, and sexual offending and provide written proof of compliance or sign any waivers necessary to monitor compliance.”
[47] As an aspect of completion of the case, the offender on consent entered into a 48-month peace bond to have no contact directly or indirectly with S.M.
CORRECTIONAL RECORDS INFORMATION
[48] A Ministry of Community and Social Services (MCSS) January 21, 1998 Risk Profile Information Report recorded this information about the offender as a 14-year-old. His parents had separated after a period of animosity between them. He was suspended for a time from grade 8 for theft. The offender was considered to be easily influenced by negative peers. He was seen to have a procriminal attitude and assessed as an 11 on a moderate scale of 9 to 26 for future criminal problems.
[49] A similar report, dated September 15, 1998, noted some school improvement though he had been charged with break and enter. The offender was viewed as a follower influenced by peers and did not seem motivated to access necessary resources. He was assessed as a 10 on the 9 to 26 moderate scale for risk. A community contact level of “medium supervision” was recommended.
[50] A November 19, 1999 Initial Progress Report at the St. John’s youth correctional facility noted that the 15-year-old offender could get caught up in the immature and negative behaviour of other students. The report records the offender as asking for information about DAWN, a drug awareness program.
[51] A January 2000 MCSS Risk Profile Information Report respecting the offender stated that it is “unclear of how literate he is”. The report further noted that he was “easily influenced to drink and use marihuana”. There was a plan for the 15-year-old to return to reside with his mother in the Jane/Finch area. The report recorded deteriorating attendance at school with it being unlikely that grade 9 courses would be passed. It was noted that more positive use of leisure time was necessary. While the offender was not seen to display any personality or behaviour disorder characteristics, he scored 20 on the 9 to 26 moderate risk scale for future criminality. Maximum community supervision was recommended.
[52] A December 4, 2000, MCSS Risk Profile Information Report for the 16-year-old noted a history of difficulty resisting peer influences and a history of being a follower easily influenced to alcohol and marihuana use. The offender had been enrolled half-days at MTECH, an alternative education centre in Malton. The recently committed thefts suggested a “return to heavy drug use” which remained an issue in part supported an assessment of 20 on the 27 to 34 high risk scale and a recommendation for medium supervision on community release.
[53] An April 4, 2001 MCSS Level of Service Inventory – Ontario Revision (LSI-OR) prepared at the Bluewater Youth Centre respecting the 17-year-old offender noted substance abuse, both alcohol and drugs amongst other early and diverse anti-social behaviour. The offender was seen as “somewhat unmotivated” and experiencing difficulty with problem solving and self-management and generally underachieving. He visited his parents “rarely”. He was assessed at 24 on the 20 to 29 high scale for future criminality. While at Bluewater, the offender participated in an 8-session anger management group program with a positive assessment report.
[54] A June 19, 2001 similar report from Bluewater recommended maximum placement and supervision on release.
[55] Another LSI-OR dated November 5, 2003 respecting the 19-year-old offender noted personality problems with criminogenic potential, clear compliance problems and poor self-management skills. Motivation was seen as a barrier with the offender engaging in denial and minimization. It was recorded that he had “led a very unstable and anti-social teen age life” with “not very positive” family dynamics. There was history of excessive alcohol use connected to the commission of property-related offences. The offender was given a high score on the dynamic factors of “substance abuse and anti-social pattern” and assessed as a 30, the Very High ranking above the 20 to 29 High scale for future criminal behaviour. Maximum community supervision was recommended once released.
INCARCERATION AT OCI
[56] The offender was admitted to the Ontario Correctional Institute (OCI) on November 16, 2009 as a 25-year-old. Institutional record of Case Supervision from January, 2010 to January 2011 described the offender as a follower exhibiting a lack of confidence and low self-esteem, prone to following wrong paths and at times becoming overwhelmed. Various reports however noted the offender as seeming to be sincere, focused on treatment and change, and as making significant progress.
[57] A January 22, 2010 LSI-OR assessment noted a number of features of the offender and his circumstances including the following:
(1) he had not been forced by his parents to be accountable for his actions
(2) he had “obvious anger management deficits”
(3) he did not seem “to show much remorse” for his criminality against S.M.
(4) he seemed “to have an attitude of entitlement”
(5) the offender was assessed as medium for substance abuse and high on anti-social pattern / procriminal attitude /compliance with an overall scoring of 39 where 30+ is the very high risk category.
The report recorded that the Classification Committee recommended multiple institutional programming for the offender. The report included a note that he would “be considered by the Intensive Case Review Committee in June 2010 because of the nature of his offending pattern and the consequent risk for future offending against intimate partners”.
[58] Dr. C. Schroter’s January 2010 Psychology Intake Summary at OCI recorded historical information relating to the offender. He was neglected by his mother who was employed at two jobs. She did not attend his school meetings. There was unmanageable behaviour when residing with his mother. Difficulty with reading and counting was experienced in school. By middle school, the offender was unable to keep up and was teased about these difficulties by peers. He was beaten by his father for truancy. The death of an uncle strongly affected the offender. The report also included this information:
Mr. Beharri displayed both insight and an ability to hold himself accountable in interview. He acknowledged matters, which did not cast him in a favourable light. He acknowledged that he had employed a double standard in his relationship with his wife. He also acknowledged that he was quick to react and lose his temper, jumping to conclusions and acting on the same. He informed that he has resorted to violence as a method for solving disputes and retaining control. He and his friends use physical means to further their criminal activities. He shared that he assaulted a cousin and causing him serious injuries after this individual was criticizing and making verbal threats against [S.M.]. He acknowledged that he also jumped to conclusions and used violence against [S.M.] to deal with his issues. He is presently questioning his beliefs about the roles of men and women.
Mr. Beharri is beginning to understand the impact of his offences on his victim. He appears to appreciate that it was unfair to force his opinions on her and attempt to control her. However, he has more work to do in this area as he does not seem to appreciate the degree of fear she experienced during the assaults.
On the test results Mr. Beharri’s performance suggested that he functions at a lower level in the verbal cognitive domain of intelligence. However, he scored in the Average range on a non-verbal measure of intelligence. The difficulty with functioning with written and verbal comprehension is improving with practice. [He] may have had a learning problem in this domain early in his school career.
[59] Health/Psychiatric Notes dated January 13, 2010 noted that the offender admitted to his offence behaviour acknowledging being prone to jealousy with partners. He demonstrated remorse, empathy for the victim and understanding of the harm committed. The notes record the offender’s goals, with an apparent high level of motivation, as improvement in dealing with his emotions, better understanding his sexual behaviour, abstinence from alcohol and drugs, exploration of grief issues, and educational upgrading.
[60] A July 26, 2010 report of an OCI Psychometrist relating to the offender’s participation in the 8-session SORPI (Sex Offender Relapse Prevention) included this information:
Mr. Beharri attended all sessions and completed all homework assignments. He participated minimally throughout the group sessions and often appeared unenthusiastic and apathetic in group. He appeared to understand all presented material, but appeared to have some difficulty internalizing it and applying it to his own situation. With respect to his own offenses, Mr. Beharri described his offenses in a very matter-of-fact manner. While he detailed the offenses as outlined in the official reports on file, Mr. Beharri demonstrated no visible remorse for his actions. He presented his offenses in a manner that suggested that he did not grasp the severity of what he had done (he acknowledged later that he does not fully grasp the severity of his actions). In describing his offenses, Mr. Beharri tended to focus on his girlfriend’s wrongdoing (i.e. allegedly cheating on him) more so than he did on his own actions. In terms of high risk factors, Mr. Beharri was able to list a number of high risk places, feelings and behaviours (i.e. strip clubs, bars, parties, clubs, hate, jealousy, resentment, disgust), but then went on to state that they were “not really” risky for him. He reasoned that because he would never sexually offend in a bar/club/strip club, that those places would not be a problem for him. Mr. Beharri had difficulty expanding his thinking in terms of high-risk situations beyond the exact situation that occurred with his girlfriend. Mr. Beharri stated on more than one occasion that he “knows” he will not reoffend sexually, even though he could provide no explanation or understanding as to why it occurred this time.
Overall, Mr. Beharri does not appear to be accepting the gravity of his actions. He describes his offenses in a very matter-of-fact manner and does not appear to grasp the seriousness of what has occurred. Although he professes that he will “never” act out sexually again, he does not appear to have done any work in addressing many of his unresolved issues with anger, control, power, women, substance abuse and jealousy. Mr. Beharri could benefit from further treatment in this regard, both at OCI and after his release.
[61] A September 15, 2010 psychologist’s report relating to the offender’s involvement in the twice weekly 20-session Intensive Anger Management Group Treatment program recorded that:
Mr. Beharri presented as a young man with cognitive deficits that at times made it difficult for him to understand what was being communicated in the moment. He often became very defensive in the moment when challenged or when he was being given feedback of a personal nature. He progressed greatly in this area with additional time in group. He did not initially view his anger as problematic and related that substance abuse treatment was his primary treatment need. He later changed his view and declared that anger had been a problem in his life for many years. He noted that his use of drugs significantly contributed to his anger and aggression. Suspiciousness and distrust of his partner also contributed to his offence against his partner. He remembered being very frustrated with her at times because he could not formulate or articulate responses when she confronted him on issues. As a result he viewed violence as his only means of gaining respect. During the course of group, Mr. Beharri related being angry on multiple occasions and did a progressively better job of responding appropriately when he was upset. He related additionally that he gained significant awareness of factors contributing to his anger and developed anger management skills that he foresees using in the future. He expressed an appreciation for the extent to which his substance abuse contributed to his anger and offending. He expressed motivation to address his substance abuse issues as he does not want to continue to violate the rights of others as a result of his addiction.
Mr. Beharri completed a thorough relapse prevention plan to address his anger and substance abuse. Individual therapy is strongly recommended for Mr. Beharri to address his aggression that primarily stems from his inability to communicate his feelings and needs in the moment. He also needs to work on self regulation and impulse control with regard to perceived slight. Substance abuse programming will be instrumental in reducing future aggression due to Mr. Beharri’s increased propensity for anger and violence when he is intoxicated. Psychiatric intervention using psychotropic medications may be necessary as Mr. Beharri develop[s] additional tools in the area of emotional regulation.
[62] An OCI Progress Report of September 27, 2010 noted that the offender would be prone to times of frustration because he continued to struggle to understand some of the concepts presented to him in his workbooks.
[63] Additional case notes of September 29 stated that although the offender “had some troubles understanding some of the concepts while in that program”, he was “not deemed to need any more intensive sexual offending treatment”.
[64] January 15, 2011 Progress Report notes stated that the offender “has demonstrated consistent commitment to treatment” with assignments generally completed “in a high quality approach”. He became vice-chairman of his unit. It was noted that on release “[a] solid support system” would be beneficial.
[65] The offender also participated in the 25-session Intensive Substance Abuse Program (ISAP) while at OCI from October 2010 to January 2011. Dr. Tyagi’s May 2, 2011 report stated:
Mr. Beharri was an active participant in the substance abuse program. He was attentive and diligent and, completed all assignments as required. He demonstrated insight into his substance use behaviours and appeared to take responsibility for change. Mr. Beharri acknowledged that he had some cognitive limitations and was sometimes slow to understand concepts and assignments. He also had some difficulties with reading and writing skills. However, to his credit he compensated by asking for help, took extra time in diligently completing tasks and assignments, asked for clarification when things were not clear to him and took feedback in a positive manner. He presented as sincere and serious about his treatment goals.
Through the duration of the program Mr. Beharri was able to identify substance use triggers, and lifestyle patterns that contributed to his substance use. He stated that complete abstinence was an ongoing recovery goal for him. He identified the following as putting him at risk for relapse: Substance using peers, boredom, lacking direction in life, feeling overwhelmed by stressors, inability to refuse drugs that were offered to him, habitual use of drugs and alcohol to cope with problems, problems in his intimate relationship and lapses into negative thinking. Mr. Beharri appears to have made an effort to work on a number of these issues by developing a personal vision and goals for living a full life, recognizing and planning for ‘risky’ situations, using positive self-talk to defuse negative thinking and practicing assertiveness (especially saying ‘No’ to risky choices).
Mr. Beharri presented as someone who is sincere, serious and, aware of his failings. He had made gains in treatment and appears motivated to seek future assistance.
Mr. Beharri has been given community resources where he can seek individual counselling and should be encouraged to attend the same. He should be encouraged to review his relapse coping strategies and assess their effectiveness on a regular basis. He would also be well served to share his relapse prevention plan with key supports (including his probation and parole officer) in order that they understand his plans for self-regulation. He would also benefit from attending self-help programs such as A.A. or N.A., which have provided support in his efforts at sobriety. All these options have been discussed with Mr. Beharri and he appears motivated to follow through with the same.
[66] The OCI Discharge Report prepared by a psychologist stated in part:
Even up to his final expiry; resident Beharri was witnessed to be tirelessly working on his work book materials.
As opposed to taking matters in his own hands when it comes to seeing his daughter as he did in the past – he now realizes that family court is the correct way to pursue some custodial rights. He will continue attending the Cocaine Anonymous program to deal with his substance abuse issues and seek counseling for his anger. His family, employment and school will serve to be vital factors in preventing resident Beharri from going back into the criminal lifestyle. He has made numerous accomplishments during his incarceration at OCI. Noteworthy accomplishments are that he secured an “A” rating and became Vice-Chairman of the house. I find it possible that resident Beharri can live a crime-free lifestyle if he transfers and maintains his determination that was seen in OCI to the outside.
COMMUNITY RELEASE AFTER OCI
[67] A May 13, 2011 Probation Supervisor Case Note recorded a 24 score for the offender on the LSI-OR with a note that the offender was considered high risk for general recidivism. With the probation records noting scoring the offender as a low to moderate risk to reoffend on the Static 99, Stable 2000 and Acute 2000, an entry stated that while substance abuse was to be monitored, no interventions were required. The offender was required to report to probation services twice a month.
[68] A June 22, 2011 Case Note observed that the offender “completed intensive treatment at OCI to address both his sexual offence behaviour and his extensive history of domestic violence”.
[69] A July 19 Case Note recorded that the offender reported using alcohol on weekends but did not feel he was drinking to cope.
[70] The January 20, 2012 Case Note stated that the offender reported more frequent thoughts of using drugs again. His probation officer discussed coping strategies and relapse prevention.
[71] A March 2, 2012 Case Note recorded the offender as reporting that for the first time in years he had not used drugs on his birthday.
[72] The Case Notes recorded some instances of non-reporting. An April 14, 2012 Case Note recorded the offender as employed seven days a week at the Furniture Club.
THE PSYCHIATRIC ASSESSMENTS
Introduction
[73] Daniel Beharri was interviewed, tested and assessed by two highly qualified and experienced psychiatrists. Dr. Philip Klassen, who has undertaken 160 to 170 dangerous offender assessments, performed the s. 753.01 Code assessment sought by the Crown. Dr. Julian Gojer, called as a defence witness, estimated that he had participated in the assessment and treatment of over 200 dangerous offenders. The experts relied principally upon their interviews of the offender, discussion with collateral sources, and review of relevant records relating to the offender. Both experts prepared lengthy reports and testified in this Part XXIV Code sentencing hearing.
[74] The offender consented to the s. 753.01 assessment. He also provided permission to Dr. Klassen to speak to S.M. and A.S. The doctor found the offender to be polite, cooperative, amenable to the three interviews conducted and agreeable to all aspects of the assessment. Dr. Gojer found the offender to be cooperative and open to speaking but relatively unsophisticated.
[75] Dr. Klassen was aware that the offender has not always told the truth and has not always taken responsibility for his behaviour. While at times the offender presented as “quite contrite and remorseful”, at other times he spoke in “remarkably matter-of-fact terms about some fairly serious incidents”. The doctor opined that both presentations could be true.
[76] Dr. Gojer too noted that in the past the offender was capable of being manipulative and less than sincere in some circumstances.
Cognitive and Education Deficits
[77] Dr. Gojer’s testimony and report described in some detail the offender’s cognitive impairment and learning difficulties in school. It was unclear, according to the expert’s evidence, whether the cognitive impairment was tied to head injuries or whether the offender was born with his left brain defects or intellectual limitations.
[78] Records indicate that the offender was pushed ahead in school from one grade to the next. He was unable to maintain attention in school. A 1997 North York Board of Education psychological assessment diagnosed the offender with a learning disability resulting in his placement in a special program stream.
[79] Dr. Gojer, and Dr. Kalia under his direction, explored the offender’s cognitive shortcomings. He has an 83 IQ which is low to below average with “significant defects in his cognitive abilities”. Because of the offender’s reading difficulties, Dr. Kalia, a psychologist, read aloud all questions on the psychological tests. The battery of intelligence tests administered resulted in these general findings:
(1) there were “conspicuously low scores on subtests reliant on verbal expression and comprehension”
(2) on the WRAT-4 (Wide Range of Achievement) test which assesses core academic abilities in basic reading, spelling, sentence comprehension and material comprehension, the offender scored in the low range for word reading at a grade 4 month 3 equivalent
(3) on the VCI (Verbal Comprehension Index) measuring verbal reasoning ability, the offender was scored in the borderline range above only 3% of individuals in his age group
(4) on the PCI (Perceptual Reading Index) assessing non-verbal concept formation, the offender scored in the low average range above only 12% of persons in his age group
(5) on a sentence comprehension subtest and in a word reading and sentence comprehension test, the offender scored in the lower extreme range above only about 2% of persons in his age group
(6) in various memory subtests, the offender scored in the extremely low range
(7) neuropsychological testing placed the offender in the low average range suggesting “cognitive inefficiency…attributable to difficulties with attention, concentration and cognitive tracking” with the WCS Test indicating “problems in concept formation, conceptual flexibility and the ability to profit from correction”
(8) additional tests indicated moderate to severe depression, pathological impulsivity, problems in the areas of personal, physical and social-concept and disturbance in self-concept.
[80] Dr. Gojer considered the tests to afford strong evidence of a learning disability. The witness testified that the offender’s cognitive limitations and learning difficulties make it difficult for him to learn from interventions and counselling programs and in turn impact upon ability to consolidate and follow through. The offender requires assistance to learn.
[81] Dr. Klassen too recognized the offender’s problems in reading. The doctor accepted Dr. Kalia’s test results and his conclusions.
[82] Dr. Klassen testified that a lack of work skills and leisure/recreational skills, as in the offender’s case, can contribute to return to a criminal lifestyle through negative peer associations or getting involved in situations leading to offending. As one increases in age, a lack of skills becomes an issue – partners have expectations and one is “confronted with your deficits that you haven’t conquered”. The doctor noted that with the offender’s internal deficits he has struggled with poor self-regulation especially in areas of “anger and frustration”. As noted by the doctor, “when you don’t have a lot of other skills…efforts at control and intimidation in response to challenges become your go-to”. In the offender’s case, he probably “has difficulties with just feeling low because of his lack of success”.
[83] In Dr. Klassen’s view, the offender’s general lack of formal education and poor work history, and lack of material possessions tended to “shrink [his] world”. With an absence of social, financial and employment capital amounting to a lack of skills to navigate the world, coupled with not feeling good about himself psychologically, the offender would tend to “hang on even more closely to [his] intimate partner as a source of support and buoyancy”. A combination of circumstances contributed to domestic violence offending. The doctor also noted a defining issue for the offender being the death of his close friend, David, who was like a brother.
[84] Dr. Gojer also commented upon the offender’s lack of social skills and general life skills including how to maintain a relationship as well as the offender’s history of relationships with a partner also using alcohol and/or drugs.
[85] Dr. Klassen described the offender’s upbringing as being raised “in a problematic family-of-origin including a harsh and alcoholic father and an indulgent mother working two jobs out of the house. Violence between his parents occurred and the offender’s father was abusive toward him. There was “little support” including for things such as homework. In effect, with a lack of supervision, the offender did whatever he wanted. These circumstances contributed to the offender having poor self-management skills. Dr. Gojer too remarked upon the offender’s environment with a lack of any strong community supports, the beatings from his very strict father, and the poverty of the family.
Criminal History
[86] Dr. Klassen and Dr. Gojer testified that the offender was generally forthcoming in admitting the details of his criminal history including the predicate offences. There was substantial agreement between his account and file and other documented versions. Adolescent and early adult criminality was effectively an acquisitive phase when the offender had no meaningful family or supervision and resided in the dangerous area of Jane and Finch in Toronto. The offender largely committed property offences with peers. Then, according to Dr. Klassen, the offender became involved in interpersonal domestic violence where “other psychological factors are at play” where psychological pressures existed with which he was not fit to deal, such as relationships, family responsibilities, and the expectations upon a young adult.
OCI Treatment/Follow-up on Release
[87] In their testimony, the psychiatrists were asked to comment upon the offender’s stay at OCI and the follow-up period leading to the commission of the predicate offences against A.S.
[88] Dr. Klassen reported the offender as saying that while at OCI he did not take treatment seriously.
[89] Diagnosed at OCI as suffering from a bipolar disorder the offender was prescribed Epival (1500 mg. daily). Both Dr. Klassen and Dr. Gojer considered this to be a misdiagnosis. Dr. Klassen testified that this resulted in the offender going forward taking a “significant medication” unnecessarily.
[90] The offender was released from OCI in January of 2011. Thereafter, he held his longest period of steady employment working at the Furniture Club. He was less engaged with problematic peers and criminal self-support. There is evidence that he remained abstinent from cocaine use until June or July of 2012. In Dr. Klassen’s view, these circumstances demonstrated the offender to be gravitating “more towards lifestyle stability than he did prior to his incarceration”.
[91] Dr. Klassen testified that the sex offender treatment, anger management and substance abuse treatments undertaken by the offender at OCI were, in duration and intensity, entirely inadequate to effect change or address “any need” from a psychiatric perspective for an individual with the offender’s known history. The doctor opined that the substandard review in the offender’s sex offender final report may have been the result in part of the offender disengaging on account of his shame for his sex offending.
[92] Both psychiatrists noted conceptual challenges experienced by the offender in his treatment at OCI on account of his cognitive limitations.
[93] Dr. Gojer concurred with Dr. Klassen’s views, testifying that the OCI programs “would just scratch the tip of the iceberg” – the offender required “a much more intensive program” and of longer duration. The doctor noted that, inexplicably, the offender was not enrolled in the SORP-2 phase of sex offender treatment while at OCI after completing the basis introductory phase of sex offender treatment (SORP-1). The doctor testified that:
See, what you do with the sex offender relapse prevention program one, you are introduced to concepts and ideas about sex offending. In the sex offender relapse prevention two, you start talking about your offence and you start looking at the dynamic reasons why the offence occurred and you set up what is called a relapse prevention plan. So that’s what’s needed. It requires more intensive involvement. It can be fairly challenging because you have other inmates challenging you about your plans so you have both peer pressure and you have instructions coming from the therapist.
We scratched the surface, that’s what I can say. He’s just been exposed to therapies.
[94] Dr. Klassen testified that there is “empirical evidence to show that the better you train probation officers, the less people reoffend”. The doctor was surprised that, on release from OCI, the offender was not linked to any community treatment program. Given the gravity of the crimes for which he had been incarcerated, and that he was soon upon release again residing with an intimate partner, there should have been ongoing community treatment and monitoring. In the doctor’s words, “the probation officer didn’t seem to take seriously that this seriously violent and recidivist intimate partner offender had a new partner”.
[95] Dr. Gojer’s report also noted that: “Following his release into the community, he was not linked to any substance use programs, any sex offender program or an anger management program”. There should have been follow through with such programs in the community and “a very detailed evaluation” of the offender upon release by probation services:
It sounds like on this release, the last release, he wasn’t referred to, he was never connected with a bone fide sex offender program, there was no substance use program that he was attending to, there was no partner abuse program that he was attending. So I felt that he fell through the cracks. We might want to point a finger at the probation services but Mr. Beharri also has to take some responsibility, he still reoffended. But the likelihood of reoffending would be significantly diminished if we had him in a solid monitoring program. So there was some lacunae in the follow up.
I mean, it’s a least telling you that he’s recognizing that he has problems. He says he reports he experiences jealousy that was the cause of the assault. When I look at this, this is an assessment done at a probation office. Mr. Beharri should have had a very detailed evaluation because by the time he comes out after the first sexual assault, I think on paper he looks pretty high risk to me, at least moderately high risk, and most probation officers would have done what is called an LSI level of supervision inventory revised, and you will immediately find that this person is a high risk, he should’ve been flagged, there should have been an assessment. I tend to do an -- we have a lot of individuals referred to CAMH for assessments. For some reason this referral didn’t go through. There’s two sessions, the number of sessions attended says two and it’s going -- he was seeing a registered marital and family therapist. I think this person needed something way much more than just that.
Psychiatric Diagnoses
[96] Dr. Klassen clinically diagnosed the offender as having two disorders – antisocial personality disorder and substance use disorder. The offender met most of the DSM5 criteria for antisocial personality disorder and his encounters with alcohol and cocaine were chronic and beyond recreational.
[97] In respect of the antisocial personality disorder, Dr. Klassen testified that “there are times when Mr. Beharri seems to be legitimately contrite and acknowledges his wrongdoing and acknowledges very unflattering motivations for his wrongdoing” while at other times some “emotional flatness and remove, almost callousness with respect to description of events”. In this sense, there appear to be two legitimate sides to the offender.
[98] The witness described anti-social personality disorder as a conduct disorder and a “significant” personality disorder marked by a failure to conform to social norms respecting lawful behaviour. The disorder involves maladaptive and inflexible personality traits generally evident by the late teens and is “generally sustained thereafter, albeit with some attenuation of more dramatic personality traits toward middle and late age”. The disorder presents difficulties with occupational and social functioning as well as interpersonal relations. The course of symptoms, as in the offender’s case, can be exacerbated by psychosocial stress, an unstructured living situation, substance abuse or non-adherence with psychiatric/psychological treatment. The disorder includes deceitful, impulsive, aggressive and irresponsible behaviours with limited remorse for actions and minimization of harmful consequences of actions. There are genetic and environmental factors which contribute to the risk of developing the disorder. That likelihood increases if the subject experienced parental rejection/neglect, inconsistent child-rearing practices with harsh discipline, unstable or erratic parenting, physical abuse, or association with a delinquent peer group.
[99] As to this diagnosis, the doctor’s report states:
An individual may be diagnosed, according to the DSM-5, as meeting the adult criteria for antisocial personality disorder where there is a pervasive pattern of disregard for and violation of the rights of others, occurring since age 15, as indicated by three or more of:
• failure to conform to social norms with respect to lawful behaviours [met]
• deceitfulness, as indicated by repeated lying, use of aliases, or conning others for profit or pleasure [met]
• impulsivity or a failure to plan ahead [met]
• irritability and aggressiveness as indicated by physical fights or assaults [met]
• reckless disregard for the safety of self or others [likely met]
• consistent irresponsibility as indicated by repeated failure to sustain consistent work behaviour or honour financial obligations [met]
• lack of remorse, as indicated by being indifferent to or rationalizing having hurt, mistreated, or stolen from another [possibly met]
[100] In assessing future risk, one looks to static and dynamic factors respecting an offender. Static factors, such as gender and criminal history, do not change or change only minimally. Dynamic factors, such as drug use, “can fluctuate” and are “potentially modifiable”.
[101] In his testimony, Dr. Klassen explained the risk-assessment tools employed in his examination. This included the PCL-R (Psychopathy Check List – Revised) considered to be the gold standard for identifying psychopathy which the witnessed described as “the personality dimension felt to be most related to offending behaviour”. The test appraises a subject in 20 domains exploring both shallow emotionality self-serving values and attitudes, and, behavioural impulsivity. The scoring is 0, 1 or 2 per domain with a maximum score of 40. Dr. Klassen scored the offender at 26 which he considered to be a “significant” score but falling short of the 30 and higher scores reserved for the psychopath label. The offender’s score “suggests difficulties with general and violent recidivism, and treatment responsiveness”.
[102] Dr. Klassen testified that:
There are aspects of him that are the classic not so antisocial domestic violence person which is his dependency, his inadequacy, the smallness of his life outside of his connection with his partner, his probable inability to even articulate to himself how dependent he is on a partner when with a partner, and his very strong emotional reaction when that relationship feels threatened by the other partner but I think his PCL score is 26.
… there are going to be more difficulties with conscious formation, more difficulties with emotional depth, more difficulties with empathy with this gentleman than if we say the domestic offender that is purely a domestic offender. That being said, you know, he has apologized and presented as remorseful subsequently and not only with his domestic violence victims but reportedly also after institutional incidents suggesting that at least part of the problem is just very, very big struggles with self-regulation when he gets frustrated. I might also add he does not have a massive set of cognitive tools to work with to help him resolve frustration...
He gets angry very quickly. Frustration and anger is a major problem for him. It leads to criminogenic thinking around vindictiveness and control.
[103] Dr. Gojer testified that there is no evidence of the offender having a major mental illness, thought disorder, delusions, bizarre ideas, suicidal or homicidal ideas and no perceptual problems such as illusions or hallucinations. The doctor agreed with Dr. Klassen’s diagnosis of antisocial personality disorder and substance use disorder.
[104] Dr. Gojer and Dr. Kalia both scored the offender at 26 on the PCL-R. Dr. Gojer considered the score to be “fairly high” with the offender having exhibited “an inability to control his impulses”, irresponsibility, and failing to follow through. Dr. Gojer described antisocial personality disorder as a label for non-conforming behaviour which is more of a sociological diagnosis than a disease. According to the doctor, the 26 score could possibly have been lower if the offender had not been a cocaine-user or drinking as much – “we might view it quite differently”.
[105] Dr. Klassen considered the evidence to clearly support the diagnosis of substance use disorder – “cocaine appears to have had an impact on his criminal trajectory”. The offender’s conflict with partners has been “predicated in part on his use of cocaine”. Dr. Gojer agreed testifying that the offender’s domestic violence involved a “combination” of problems of an innate nature predisposing him to act out as well as his chronic use of alcohol and drugs. The doctor testified there exists “an artificial sense that the antisociality that he’s exhibiting is much worse than what it really may be if he wasn’t on the use of these drugs”. The witness further testified that with cocaine making the offender more impulsive and suspicious leading to increased friction with domestic partners “then we’d expect that the use of cocaine has strong contributory effect to the domestic violence”.
[106] Dr. Klassen noted that the offender commenced using cocaine in his teens ultimately becoming a daily-user addict. Over time, it appeared that drug abuse primarily stopped only when he was in jail. The doctor testified that cocaine increases the potential for aggression and libido. Collateral sources confirmed the offender’s problems with cocaine and alcohol including that cocaine and alcohol “predisposed” the offender to “problematic behaviour”. A.S. informed the doctor that when the offender was not substance-addicted he could demonstrate responsibility and capacity for remorse and guilt.
[107] Dr. Klassen testified that cocaine has been a “big problem” in the offender’s life and, in part, “the cocaine use related to an unhappy sense of self” as he “felt increasingly lost”. According to the doctor, substance abuse “is closely linked to his criminality” and that the offender’s antisocial personality traits and criminal conduct would be expected to “significantly lessen” when not using substances.
[108] Dr. Gojer too concluded that the offender’s history of substance abuse was very much connected to his overall offending and instrumental “especially with respect to these last two domestic assaults”. The doctor testified that cocaine use appears to have filled a void in the offender’s life. With cocaine, he tends to become paranoid including mistrustful of his partners with an aspect of jealousy emerging contributing to his aggression. As cocaine use seems to make the offender more impulsive and suspicious leading to more friction with partners, “then we’d expect that the use of cocaine has strong contributory effect to the domestic violence”. Problems with temper and impulsivity became “worse when using drugs”. Drug abuse screening tests administered to the offender during assessment indicate the high probability of substance dependence disorder.
[109] As aspect of Dr. Klassen’s assessment involved phallometric testing of the offender respecting coercive sexual preference at the Phallometric Laboratory of the Centre For Addiction and Mental Disorder. While the results reflect some attempts at manipulation by the test subject, “[t]he phallometric result was not indicative of a preference for coercive interaction with a woman”. Dr. Klassen concluded that the offender, on balance, does not suffer from a sexual behaviour disorder or paraphilic disorder but that his sexual aggression was motivated by an intention to control and humiliate.
[110] Dr. Gojer also concluded that the offender’s sexual offending does not involve a sexual deviancy. To some extent, the sexual offences have involved the offender’s negative attitudes toward females and a misplaced sense of entitlement in relationships to sex and threats of sexual harm. The offender has “unsophisticated views about consent”.
Risk Assessment
[111] Dr. Klassen described actuarial or structural methods of risk assessment as the most accurate risk predictors. Such instruments provide a probabilistic estimate of risk based on comparison to identified groups of offenders sharing similar defined criteria who have been released into the community and tracked thereafter. Instruments such as the VRAG (Violence Risk Appraisal Guide), HCR-20, and SORAG (Sex Offender Risk Appraisal Guide) incorporate the PCL-R. These instruments, along with the STATIC99-R, assess future risk as well as being of assistance in predicting compliance with community supervision and treatment responsiveness.
[112] Dr. Klassen employed the SORAG and STATIC99-R to rate the offender’s risk of sex offence recidivism:
My score for this gentleman on the SORAG is 28. A score of 28 places this gentleman on the 96th percentile; similar scoring individuals in the reference or sample recidivated violently or sexually at a rate of 89%, over 10 years opportunity in the community. This probability estimate may be a small overestimate, as baserates of recidivism have declined, and this outcome data is somewhat dated.
Scoring this gentleman on the STATIC99-R is 7. At a score of 7, this gentleman falls on the 97th percentile with respect to reference or standardization samples. This places him at 5.25 times the risk of the “average” sex offender, as regards recidivism. Similar scoring individuals would be expected to recidivate at a rate of 57% over 10 years opportunity.
The reader will note that this gentleman’s percentile scores on the SORAG and STATIC99-R are very similar. There’s a disconnect with respect to probability of violent or sexual recidivism. Different instruments, with differing reference or standardization samples, and differing definitions of re-offense, may generate different probability estimates. Another caveat to be kept in mind is that the SORAG probability estimates may be a slight overestimate, given decline in baserates of violent and sexual recidivism over the past several decades. The STATIC99-R estimate is somewhat more current.
Taken together these instruments indicate that Mr. Beharri is, at least under release conditions similar to the reference samples, at high risk of sex offender recidivism, and is likely to recidivate sexually, absent significant intervention.
[113] Dr. Klassen’s report recorded these findings respecting the risk of non-sexual violent recidivism:
In terms of non-sexual violent recidivism. I’ve chose also to score this gentleman on the HCR-20, the ODARA, and the VRAG, given that he has engaged in non-sexual violence of offending as well, in particular in the domestic context (there’s data supporting the use of the VRAG in such a context). The VRAG and SORAG do share a number of items.
My score for this gentleman on the VRAG is 18. A score of 18 places this gentleman on approximately the 90th percentile with respect to the reference or standardization sample. Similar scoring individuals recidivated violently at a rate of 64%, over 10 years opportunity in the community. This again may be a slight overestimate, for reasons articulated above.
My score for this gentleman on the HCR-20 falls somewhere between 24 and 29, depending on release conditions (there is a future component to the HCR-20). Percentile scores are not available for the HCR-20; qualitatively, I would describe this score as moderately high (similar to the description I would give to the VRAG score). Similar scoring individuals released from penitentiary, in one study, would be expected to recidivate at a rate of 69% over approximately 7.5 years opportunity in the community, although again this outcome data is older. This probability estimate is very close to that offered by the VRAG; there appears to be a concordance here.
I’ve also chosen to score this gentleman using the Ontario Domestic Assault Risk Assessment tool (ODARA). Recently, there’s been empirical evidence of replication of the ODARA, a tool purpose-built to address risk of re-offense with respect to a former partner. I believe, however, that the ODARA might also be of some value in predicting offending behaviour in future relationships, albeit strictly speaking it’s not designed to be used in this way. The ODARA consists of 13 items with each item being scored either a 0 or 1. Higher scores on the instrument are associated with greater risk for future domestic assault recidivism, although the maximum score on the instrument is 7 or above.
Mr. Beharri’s score on the ODARA was 10 out of a possible 13 points, placing him in the highest risk category. This was true scoring Mr. Beharri with respect to both [A.S.] and [S.M.] (scoring for [S.M.] as of 2008). Among the 600 individuals in the development samples, only 7% achieved a score of 7 or greater on the instrument. In other words, Mr. Beharri’s score was higher than 93% of individuals in that developmental sample. Among individuals in the development sample with a similar score, 70% committed a further assault against an intimate partner that came to the attention of the police, generally a prior victim.
Accordingly, Mr. Beharri would appear to be at significant risk of domestic, and non-domestic violent recidivism.
(emphasis of original)
[114] In his testimony, Dr. Klassen summarized his findings:
I think the results are quite consistent, and moreover, and this is always I think relevant when you’re thinking about an offender clinically, they also to me seem to make sense in light of what we know about Mr. Beharri. So the sex offender risk appraisal tool suggest that this gentleman is at the high end of the continuum in terms of probability, rather, I should say, in terms of percentile, 96 and 97 percentile. I am not wedded to a risk estimate of 89 percent for reasons that I’ve articulated there although I believe that the SORAG and STATIC suggest a probability of re-offence under standard release conditions. So I think his sexual offender risk on the basis of these instruments over the next – over ten years after release is high.
Then with respect to the non-sexual piece, as I’ve said, I’m not convinced that his risk of general violent recidivism is all that high. I would call it more moderate to high moderate as you can see from the VRAG score and also the HCR-20 score. However, I would say consistent with the sex offender piece that the ODARA again suggests that his domestic violence risk is high. I mean, there are some quirks to the ODARA which you can ask me about or not but I think overall if we were to say, if we were to map it out and say high domestic risk, high sexual risk, moderate to moderately high general violence risk, I think you would say -- under standard release conditions, I think you would say, “Yeah, that seems to make sense.” And indeed I have no reason, in other words, there’s no reason, in my opinion, to dispense with those results.
[115] Dr. Klassen noted that the actuarial instruments do not measure the domains of imminence, frequency or severity of re-offence. That said, the doctor testified that “the higher the risk actuarially, the sooner…persons typically recidivate” and from the review of the offender’s recent criminal history involving S.M. and A.S., “[i]t would appear that the risk is most significantly posed to domestic violence partners”. As well, instruments such as the SORAG and STATIC “suggest a probability of re-offence under standard release conditions” which highlights one of the “challenges around using group data” – the assumption is that the subject to whom the group data is being applied “is similar in important aspects to the group”. In this regard, the doctor testified as follows:
A. So to sort of dramatize it to make a point, you know, when we’re talking about release conditions of these groups, of course there will be some distribution, some more restrictive, some less restrictive release conditions.
Q. And some may have been dumped out at the warrant expiry point with no conditions.
A. Exactly. So the -- there will be a continuum although if it was to resemble a bell curve, my sense is probation would be at the peak of the -- of the curve. We don’t have any way as yet, Your Honour, to integrate and change probabilities on the basis of significantly different release conditions. So if you said to me, “If this person lived in a community correctional centre for his whole LTSO or ten-year supervision period, received this and this and this, how would that change the probabilities?” I couldn’t give you a quantitative estimate. I couldn’t tell you it takes it from whatever number to whatever number because we just don’t have any science to rely on in that regard.
… in response to your question, you’re quite right to say that different conditions of release will move those probabilities but I would have no evidentiary foundation, so to speak, from a scientific nature.
[116] Dr. Gojer also addressed the issue of the actuarial instrument approach of comparison to group data involving individuals released under “standard release conditions” testifying that the comparator groups tend to be small in size and that:
…there’s a significant danger in bias and error from a statistical point of view when you have very small numbers.
And the second thing is the probability is compared to a sample that’s a very small sample of a period of ten years based on a set number of variables, like 13 variables. Whereas the samples studied by insurance companies tend to be much more vast and sometimes there’s a mistake in us comparing risk of reoffending when we use probability estimates as taken from the VRAG and SORAG and comparing them with general risk of reoffending. The general risk of reoffending for all sex offenders tends to be much lower. So when you look at figures like 89 percent and 90 percent or 100 percent, it becomes significantly higher but that’s in comparison to the small group sample that was studied, so we have to put it in context.
Aging As An Independent Variable
[117] Dr. Klassen’s report noted that antisocial personality disorder “has a chronic course, but may become less evident or remit as the individual grows older”. In his testimony, the witness stated:
Violent offences as a cluster tend to decline with age and oftentimes by the time people get into their mid to late 40’s or early 50’s, there’s been significant decline in propensity for both violent offending and also violent sexual offending by which I really mean, to put it colloquially, rape. Child molestation shows a different desistence curve. It is a -- it is a more gradual slope and I’m sure that fits with everybody’s experience here that in fact people continue to offend but at a lower frequency against children into their 50’s and 60’s. So different kinds of offences have different kinds of curves.
For our purposes here, I mean, I think you can look at meaningful desistence by the time people are into their 50’s when it comes to serious violence, including sexual violence, including with domestic partners, and I think I’ve made reference to that in the report. Now, I want to be clear, it’s a linear process. I’m not suggesting that there’s some kind of cliff-like drop off at a particular age but if you were to choose to rely on age-related decline as opposed to treatment outcome, then I think I draw confidence from that decade, from the 50’s.
[118] Dr. Gojer testified that age is a “very important” factor in terms of an offender’s risk to reoffend which operates independently of any applied therapy. The witness informed the court that:
It’s very important, we have to take that into consideration because the aggression is going to be less, the desire, sexual prowess is going to be less, sex becomes less of a factor and the emotional factors start becoming more as you get older in the context of a relationship, the use of alcohol and drugs becomes less as you get older. So all these factors are working in conjunction at the same time and that’s independent of any of the therapy that he might receive.
Essentially, high levels of aggression are common between the ages of 16 and 26 in males and then we see a gradual decline, but you see a more substantial decline after the 40’s and as it goes into the 50’s.
[119] In cross-examination, the doctor noted that with age comes reduction in the amount of drugs and alcohol which can be consumed. The witness further added that:
When we look at age as a factor, we want to take this man closer to the age of 50 or early 50’s.
…so you’d like to see him closer to the age of 50 so it depends on how that works out. And I can’t say that 50 is a magical number that as soon as you cross 50, is risk is not -- I can’t say that risk will ever be eliminated. It’s couched in probabilistic terms, reasonable possibility as they say. So when you get into your late 40’s, you’re getting closer to that age where risk is attenuating. Does it go away completely? No.
Risk Management
[120] Dr. Klassen’s report noted that the offender “stated that he’ll not again use recreational drugs or alcohol, and is happy to take treatment and urinalysis to substantiate this”. The doctor reported the offender now acknowledging that cocaine has been a chronic and negative problem for him and needs to be avoided to be successful in the community. Dr. Klassen further testified that there have been periods of time when the offender “may be sincere in his wish to abstain from cocaine and I think there’s some collateral information to support that”. The doctor noted that as to the offender’s impulsivity and problems maintaining commitment to goals, he “has some idea of his limitations”.
[121] Dr. Klassen testified that the offender has a positive attitude, appears sincere, and his cooperation in the DO assessment process is “a positive prognostic factor for again engaging in treatment” while recognizing that he has presented in this manner before such that it could not necessarily be said that this would result in a “better treatment outcome”. That said, in the doctor’s view, it seems that as the offender has aged he has exhibited increased motivation for change as it applies to treatment and has generally performed well in custody and improved over time with aging. Dr. Klassen testified that “we have no reason to believe that Mr. Beharri will not engage in treatment”. The doctor agreed that a person may succeed in the future despite past failure to carry treatment forward into the community.
[122] Dr. Gojer’s report records that the offender would, upon release, be prepared to take prescription medication as required in addition to complying with other terms. From his assessment of the offender, the doctor considered that with his acknowledgment of his problems and understanding of the benefits of treatment, the offender was motivated and open for treatment. It was to be considered positive that the offender has shown willingness to take responsibility.
[123] An antisocial personality disorder cannot, at present, be cured or treated en bloc. Treatment emphasis focuses on aspects of personality that “can dissolve” and make the most difference with a view to making enough of a change to be meaningful in terms of adaptation. A 26 score on the PCL-R presents difficulties with treatment responsiveness. That said, additional and more intensive treatment in the areas of not only substance abuse but also sexual offending, relationships and anger management are necessary.
[124] Dr. Gojer testified that the offender can be taught and relevant treatment accommodated in the penitentiary system as the first step toward transition into the community. Recommended options for treatment of the offender are reasonable, can be instituted, and have not been exhausted – “[t]here certainly are more options both in intensity and frequency and duration”. Treatment, such as it is, falls within the psychological domain with pharmacology at times as an adjunct. Dr. Klassen’s report noted that dynamic or criminogenic variables, essentially temporally varying personal or situational circumstances associated positively or negatively with risk of criminal behaviour, are “theoretically changeable” and that these variables should be targeted for treatment and/or supervision. As described in Dr. Klassen’s report, the relevant dynamic variables in the offender’s case are:
• significant antisociality
• significant addictions difficulties, particularly as regards cocaine
• relative treatment resistance
• likely problematic values and attitudes as regards male-female relations, perhaps particularly while cocaine-intoxicated
• lack of prosocial or structured activities
• exposure to criminal peers or enablers
Criminogenic variables may be partitioned into motivating, destabilizing, disinhibition factors, and also protective factors, in the service of creating a narrative that might identify the pathway to future offending.
[125] Dr. Klassen further noted that the offender’s involvement with stimulants such as cocaine was a motivating, destabilizing and disinhibiting criminogenic factor. Dr. Klassen noted that relevant literature “says that higher dose treatment is more likely to produce positive outcomes” for anger management treatment. While the witness stated that there was no “guarantee” that higher doses of treatment would effect a different outcome, it is clear that the intensity and duration of past treatment was inadequate. The doctor agreed that intensive treatment is available in the penitentiary system.
[126] Dr. Gojer testified that penitentiary treatment programs of the type required for the offender, and in particular, the ICPM, are “vast” and of much greater intensity and duration than seen in the provincial system. In the doctor’s view, “the bigger the dose of therapy, the greater the likelihood of improvement”.
[127] Dr. Klassen testified that the offender has struggled in the community and on future release his resolve will again be challenged. Risk management in the community should include more monitoring and supervision than in the past. This could include urinalysis testing. The previous heavy use of cocaine and alcohol need to be risk-managed. Successful treatment of the offender depends on “breaking the cycle of substance abuse”. The doctor’s clinical impression was that such a result would impact on the frequency and severity of misbehaviour “through a reduction of conflict hiding an addiction”. The doctor’s view is that “the right kinds of external controls” within the community environment are required to push “countervailing forces” out of mind. Dr. Klassen’s view is that an LTSO would permit “significantly more monitoring…and supervision” than was the case on the offender’s release from OCI.
[128] Dr. Gojer considered drug use abstinence to be critical to the offender’s future – “you also have to translate into him not using cocaine when he’s released…that would be the most important factor”.
[129] In Dr. Klassen’s view, the offender is able to cognitively follow through on applied treatment. His lack of continuous education is however relevant to the broader concept of risk management – given difficulties with learning, treatment would need to accommodate and be adapted to his learning style. The doctor accepted that the offender’s learning disability may relate in part to his failure to carry treatment forward to success in the community.
[130] Dr. Gojer agreed that the offender’s cognitive limitations making learning from interventions and counselling difficult for him has translated into a failure to consolidate and follow through upon release. The offender would benefit from group and individual counselling. In the doctor’s view, in addition to a minimum of 5 years of treatment respecting substance abuse, anger and sexual offending, carceral opportunities should also include cognitive skills programs for example relating to vocation and the use of recreation time productively – all with a view to creating a new lifestyle for safe reintegration.
[131] Dr. Klassen informed the court that in the future the offender will require more responsibility in relationships and different partner choices – partners without their own addiction or substance use issues or who are themselves poorly regulated.
[132] The Risk Management section of Dr. Klassen’s report concluded in this way:
This gentleman certainly requires treatment for his addictions difficulties. It’s also clear that this gentleman should likely not engage in a cohabiting, intimate relationship, until such time as those involved with him, or supervising him, can be satisfied that he can manage interpersonal conflict, and his stimulant addiction, successfully.
From a risk management perspective, I would suggest the following:
This gentleman has received two cycles of treatment regarding interpersonal violence, but thus far this treatment has not been successful. This gentleman may benefit from more intensive treatment regarding anger and emotions management, and intimate partner violence. He may require support with respect to written or homework aspects of such programming.
This gentleman should receive further treatment regarding addictions. He has received addictions treatment previously, but this has not sustained him, in the community.
This gentleman may benefit from further efforts to complete trades training. He may also benefit from more structured leisure or recreational interests.
This gentleman should abstain from associating with individuals with a criminal record, save and except for those times when such association is inevitable, for example while residing at a community correctional centre (CCC), or a community release facility (CRF).
This gentleman should abstain completely from the use of alcohol or any non-prescribed agents, and should submit to random, frequent, urinalyses to ascertain the same. Any suggestion of return to substance use should result in a brisk response by those supervising him.
This gentleman should not again be permitted to cohabit with an intimate partner, without the approval of those supervising him. Any romantic relationship, even in it’s earliest stages, should be disclosed to the person(s) supervising him. In practical terms this is often quite a challenge; intimate partners, as is evidenced in this matter, may at times show a high tolerance for problematic behaviour on the part of the offender, resulting in its repetition, and may not be fully forthcoming or cooperative with the authorities.
At such times as this gentleman may be released to the community he should only be released to the community through residency at a CCC or CRF, and this gentleman’s access to the community should be titrated, carefully. Further, his self-report should be corroborated by collateral sources wherever possible.
With respect to whether or not there is a reasonable expectation that a lesser measure under paragraph (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence it’s difficult for me to be unequivocal. This gentleman is only 30 years of age. His period at risk, with respect to intimate partner violence, extends for at least a further two decades. His offending behaviour has been severe, and (with both partners) repeated. His periods of survival in the community have been brief, and I further have some concerns that this gentleman has been, historically, seemingly quite comfortable eluding supervision, being AWOL. He has expressed a wish to change, but this has been expressed in the past, and he’s not either had the motivation, or the skills, to maintain better behaviour. While I did not have the final report of the PAR program available to me, reports from OCI were, generally speaking, very positive; it’s thus further not clear that good response to treatment, in an institution, will lead to good outcome in the community. If this gentleman is placed on long-term supervision I would, from a purely psychiatric perspective, suggest that this Order would need to be ten years in length (the maximum length), and it would need to be understood that, perhaps not immediately, but over time and at such point in time as this gentleman returns to an intimate relationship, there could be significant risks associated with this sentencing option.
[133] Dr. Gojer testified that release of the offender requires follow through of similar treatment/counselling programs in the community, available through terms of an LTSO to further support the need for the offender to introject or integrate information “so that it becomes second-nature”. In addition, meaningful community follow-up is required:
See, more importantly it’s not only having treatment in the penitentiary because this man will do well, he’ll participate well, it’s when he’s at most risk that’s in the community, that’s when we really need to follow up. So the programs are there at the penitentiary, he’ll get them. The question is are there programs in the community. Corrections Canada also has similar type programs in the community for sex offenders, for anger management programs and substance use programs, so it requires mixing and matching these programs so that you don’t overload the person with too much of therapy but it also requires that you have sufficient therapy that he’s monitored, he’s following through and there are other checks and balances in place, so it has to be a very comprehensive plan.
[134] Dr. Gojer expressed this conclusion in his testimony:
We also have to take into consideration the aging factor, late 40’s, early 50’s, we’d expect the risk of violence substantially reduce. We’d also expect the risk of sexually-violent behaviours to reduce. So he’s on that cusp at that point in time where we’d expect the interaction of aging factors with -- have a lengthy period in custody, plus we’ll have another ten years of treatment and follow-up in management in the community. I believe that this man’s behaviour can be managed effectively if as a long-term offender in the community for the next ten years after having served five years in the penitentiary and participate in these programs. The point is if I offered an opinion as to what would happen after that, I think I’d be going into never-never land, so maybe -- that’s why I wrote the report the way I did and I thought I should just leave it at that.
[135] In concluding that the offender would “be manageable within the period of a long-term offender designation”, Dr. Gojer placed more emphasis than Dr. Klassen upon the role of pharmacological intervention in risk management in the community. Antabuse administered by a third person or by the offender under observation can be a strong deterrent to substance use. An anti-androgen medication should be use, to which the offender has agreed, at least “for a short period of time in the community while [the offender is] settling down…until we establish he’s no longer using or the risk of using cocaine has diminished”. This approach would tend to take away a desire to be in a relationship and make it easier for the offender to focus upon therapy. As well, an SSRI such as Prozac would serve to decrease impulsiveness and anxiety.
CORRECTIONS CANADA INFORMATION
[136] Cathy Phillips, Parole Officer Supervisor and Acting Manager of Correctional Programs and Acting Area Director, provided the court with overview evidence respecting the Correctional Service of Canada ( CSC) penitentiary programming and community release regimes (see Application Record, Vol. 5).
[137] The witness provided this information respecting Federal incarceration:
(1) the paramount concern of CSC is protection of society – CSC “contributes to the public safety by actively encouraging and assisting offenders to become law abiding citizens while exercising reasonable, safe, secure and humane control”
(2) a priority to fulfil public safety involves “[s]afe transition to and management of eligible offenders into the community”
(3) offender risk assessment and management are ongoing processes from sentence commencement until expiry or beyond as in the case of a LTSO
(4) to assist the Case Management Team responsible for the offender during his incarceration, an Offender Intake Assessment is undertaken:
That the reintegration process begins with a comprehensive Offender Intake Assessment (OIA) to determine risk and needs, and to establish an initial placement to an institution at the appropriate security level. The OIA process involves the systematic collection and analysis of comprehensive information on each offender’s criminal and mental health background, social situation and education, factors relevant to determining criminal risk (such as a criminal record) and factors relevant to identifying offender needs (such as employment). The OIA results in a multi-disciplinary correctional plan outlining treatment and correctional interventions throughout the sentence.
(5) the OIA process includes completion of the Revised Statistical Information on Recidivism Scale (SIR-R1), a Custody Rating Scale (CRS) respecting appropriate security level, a Criminal Profile Report – all with a view to creating a Correctional Plan for an offender which, during his incarceration, is modified as circumstances require:
That the Correctional Plan includes an assessment of the offender’s static risk factors (age, offence history, current offence, harm caused, etc.) and dynamic risk factors (education, employment, marital/family, associates, substance abuse, community functioning, personal/emotional orientation and attitude) and that ratings of low, medium, or high be assessed to both the static and dynamic factors.
That the Correctional Plan includes an assessment of offender accountability, motivation and responsivity to determine an offender’s engagement. These elements, considered among the key ratings assessed by the Parole Officer, are part of the Correctional Plan beginning at intake and continuing throughout an offender’s sentence.
That the Correctional Plan will include risk management strategies and recommended intervention, blending in available information on the offender’s psychological, psychiatric, mental health and/or physical health information on risk.
That the Correctional Plan will include sentence planning that will identify the objectives for the offender to gain support for reduced security classification, temporary absences, work release and/or conditional release. The objectives will be individualized, structured and include timeframes. They will initially focus on the next review period while setting the framework for managing the offender’s sentence. These objectives will be prioritized based on public safety, institutional adjustment and adaptation, interventions, programs and services required, and safe reintegration; Public safety being the paramount consideration.
(6) the Correctional Plan takes into account any court psychiatric/psychological evaluations which include risk appraisal
(7) a number of special assessments are undertaken including a Specialized Sex Offender Assessment (SSOA), Substance Abuse Assessment and Family Violence Risk Assessment
(8) in addition to educational and vocational programs, an incarcerated offender has the opportunity to participate in relevant correctional treatment programs:
That a correctional program is defined as a structured intervention that addresses the factors directly related to the offender’s criminal behaviour. Correctional program selection criteria include the level of actuarial risk in conjunction with needs as assessed by the standard supplementary assessments or defined by selection criteria that serve to determine the intensity level of a correctional program.
That CSC has a number of world-renowned accredited correctional programs that contribute to an offender’s safe reintegration into society by reducing the likelihood of recidivism upon release.
That correctional programs address offenders’ criminogenic needs and are based on evidence-based research, relevant theory and current practices.
That CSC ensures that all offenders, including those with mental health needs and with intellectual or learning disabilities, are appropriately accommodated and have access to correctional interventions, programs, and services to address their needs.
That program intensity is primarily determined by the level of risk as assessed by the SIR-R1… For sex offender programming, the program intensity is determined by level of risk as assessed by the STATIC-99R.
That the intensity and type of correctional program options are different based on the offender’s risk level and need(s). High-intensity correctional programs target offenders who have been assessed as having a high risk to reoffend. Moderate-intensity correctional programs target offenders who have been assessed as having a moderate risk to reoffend. Offenders who are assessed as having a low risk are not appropriate candidates for correctional programs unless they meet the override criteria as specified in another section (treatment of low-risk offenders). Correctional program referrals must also take into account parole eligibility dates.
(9) in the summer of 2015, the ICPM approach is being rolled out:
That CSC offers correctional programs that are designed to address the multiple risk factors that contribute to an offender’s criminal activity. CSC is in the process of replacing the traditional cadre of programs for men offenders called the Integrated Correctional Program Model (ICPM), which addresses the primary areas (general criminality, violence, family violence, substance abuse and sexual violence) identified above within a holistic framework.
That the ICPM is an innovative and holistic approach to correctional programs, designed to enhance program efficiencies, program effectiveness, and public safety results. The Integrated Correctional Program Model helps offenders understand the risk factors that are linked to their criminal behaviour and teach them how to use the skills learned in the program in different challenging or stressful situations.
That the ICPM consists of three distinct program streams: multi-target programs; Aboriginal programs; and, sex offender programs. The programs are offered at moderate and high intensity levels to address the criminal risks of the offender and each stream is comprised of components which offer continuous intervention from the start of the sentence to warrant expiry, as needed. The components include an introductory phase, a motivational component, a community program and a maintenance component to complement the main program.
(10) an offender can refuse programming
(11) an offender with a DO designation will receive the high intensity level of programming/treatment which is 100 sessions in the multi-target stream and 104 sessions in the sex offender stream – both streams include substance abuse, anger management and family violence modules
(12) ICPM programming should commence proximate to intake and the goal is to eliminate waiting lists – the ICPM approach is highly individualized and tailored to a particular offender’s needs and criminogenic factors
(13) the CSC application of programming can accommodate intellectual defects and learning disabilities and additional referrals to individual counselling can complement a national correctional program
(14) integrated relapse prevention maintenance programs can be cyclically repeated in custody and on commencing release for offenders who have completed an ICPM program.
[138] Ms. Phillips also provided general information regarding community release:
(1) the safest correctional strategy for offenders to be released to the community in order to protect society requires a gradual and structured “supervised release fully supported by the community through a network of collateral support and community resources”
(2) a Community Strategy will be completed by a Community Parole Officer in the location to which the offender has applied for release – the strategy is an essential stage of the pre-release decision process designed “to develop a supervision plan which will be implemented when the offender is released and to identify the means by which the risk can be safely managed in the community”
(3) support for a parole decision:
That parole Officers present recommendations to the PBC [Parole Board of Canada] regarding the conditional release and detention of offenders [including on a LTSO] following comprehensive risk assessments, based on ongoing correctional interventions and evaluations, with input provided by all members of the Case Management Team and after relevant reports are reviewed and locked by a Supervisor.
That conditional release allows offenders to make a gradual, structured, supervised return to society while serving their sentence.
(4) full parole availability:
…Full Parole is a form of conditional release, granted to an offender by the PBC or provincial parole board, which allows the offender to serve a portion of the sentence in the community under supervision.
That Full Parole eligibility is as follows:
• Normally one-third of sentence or seven years, whichever is less from date of sentencing (regular);
• Judge ordered one-half of sentence or 10 years, whichever is less from date of sentencing
• Life minimum: First degree murder – 25 years after date of arrest; Second degree murder – 10 years, but can be extended up to 25 years after date of arrest only upon the order of the judge at the time of sentencing;
• Life maximum: seven years from date of arrest;
• Indeterminate: seven years from date of arrest (as of August 1997).
(5) detention is one of the most restrictive measures available to CSC – effectively “extraordinary measures intended to be applied with restraint”:
That Statutory Release is a non-discretionary form of legislated release that CSC and the PBC are obligated to proceed with after the offender has served two-thirds of his or her sentence, unless there is sufficient evidence to support the detention of the offender. The offender remains subject to supervision until the expiration of his or her sentence.
That offenders can be detained past their Statutory Release Date until their Warrant Expiry Date, only if they are found by the Parole Board of Canada to be likely to commit an offence listed below, before the expiration of their sentence:
• an offence causing death or serious harm to another person;
• a sexual offence involving a child, or
• a serious drug offence
[139] Ms. Phillips described the circumstances of release of a DO-designated offender subject to a LTSO which is likely to occur only at warrant expiry as opposed to conventional parole release at some earlier point bridging to the commencement of a LTSO. The release will be subject to the standard conditions mandated by s. 161(1) of the Corrections and Conditional Release Act (CCRA). In addition:
That in the case of an offender being released on a long-term supervision order, the PBC may establish conditions that it considers reasonable and necessary in order to protect society and to facilitate the offender’s successful reintegration into society.
That an offender with a long-term supervision order must be released into the community on their warrant expiry date even if they have been detained up until that point.
That all offenders who are detained and released at their Warrant Expiry Date (including those subject to a Long-term Supervision Order) will be assessed by the Parole Officer as to whether the offender poses a threat upon release. If the Parole Officer has assessed that the offender does pose a threat, a warrant expiry package will be prepared by the institution and shared to the area police by the community parole office in the area the offender will be released to. The warrant expiry package will contain a summary of past offences, information relevant to the perceived threat, a current photograph, and copies of recent reports from CSC and the PBC, criminal history and details of the current offence, available psychiatric and or psychological reports related to detention and assessment of risk and any other relevant documentation.
[140] With regard to special conditions of a LTSO release to manage an offender’s risk in the community, CSC makes recommendations which may or may not be accepted by the PBC which may on its own impose conditions of its own design. A release condition may relate to a requirement for additional ICPM treatment and community maintenance programs. A release condition may be modified, imposed or removed by the PBC when there is a change in the level of risk or upon the offender’s request.
[141] A condition of release may require a specific residency:
That special conditions for offenders subject to a LTSO must be specific and exact as the consequences of non-compliance may lead to a charge under section 753.3 of the Criminal Code. They will be clear and directly related to an offender’s risk.
That where, in the opinion of the releasing authority, the circumstances of the case so justify, the releasing authority may require an offender as a condition of parole or unescorted temporary absence, to reside in a community-based residential facility.
That in order to facilitate the successful reintegration into society of an offender, the releasing authority may, as a condition of statutory release, require that the offender reside in a community-based residential facility or a psychiatric facility, if the releasing authority is satisfied that, in the absence of such a condition, the offender will present an undue risk to society by committing, before the expiration of their sentence according to law, an offence set out in Schedule I or an offence under section 467.11, 467.12 or 467.13 of the Criminal Code.
That for offenders serving long-term supervision orders, the special condition to reside in a community-based residential facility or psychiatric facility will be subject to a review by the Parole Board of Canada every 180 days. Should CSC not submit a subsequent recommendation to further impose the residency condition, the residency condition will automatically expire after 180 days. In this case, the offender’s Correctional Plan will be updated and shared with the Parole Board of Canada 30 days prior to the expiration of the residency condition.
[142] A special condition of a LTSO may include a urinalysis term:
That urinalysis is a supervision monitoring tool used by CSC to monitor special conditions relating to abstain from drugs or alcohol. CSC cannot test a released offender if a special condition relating abstention from drugs or alcohol has not been imposed by the Parole Board of Canada.
That CSC may demand that an offender, including an offender subject to a long-term supervision order by virtue of section 2.1 of the CCRA, submit to urinalysis:
• At once where there is reasonable grounds to suspect the offender has breached any condition of a temporary absence, work release, parole or statutory release that requires abstention from alcohol or drugs, in order to monitor the offender’s compliance with that condition; or
• At regular intervals, in order to monitor the offender’s compliance with any condition of a temporary absence, work release, parole or statutory release that requires abstention from alcohol or drugs.
[143] A further special condition can prohibit or require reporting to the Parole Officer of the existence of an intimate relationship.
[144] Given that an LTSO is “intended for managing offenders who pose a significant risk to re-offend if not effectively supervised in the community”, “[t]he safest correctional strategy for the protection of society requires a gradual and structured supervised release”: CSC and Long Term Supervision Orders (LTSO) Judicial Education ({2013), at pp. 3, 19. Community release is supervised by direct monitoring and communication between Parole Officers and parolees. Community supervision includes office and community visits, collateral contacts and case conferences. The intensity of supervision and the contours of a community assessment will vary with the circumstances of a particular parolee:
That community supervision strategies consist of differential supervision whereby more intense supervision is provided to higher risk and higher needs cases.
That the number of interventions and face-to-face interviews between the community Parole Officer and the offender are determined by the risk and need levels of each offender (i.e. Frequency of Contact). Levels of intervention range from eight times per month (Intensive Supervision Practice), four times per month, two times per month, once per month and reduced schedules for offenders who have been on parole for long periods, are stable in the community in a structured environment, and have no counselling and interventions required.
That all offenders, except those assessed as requiring Intensive Supervision Practice or those offenders in custody on outstanding charges or an immigration hold/removal order, will be supervised at a frequency of four face to face contacts per month until the level of intervention is reviewed and confirmed.
That the Parole Officer will review, with the Parole Officer Supervisor, the Correctional Plan, Community Strategy, level of intervention, program referrals and offender’s adjustment to the community within 30 days of release.
That the Parole Officer must meet with the offender at the required level of intervention, or more often if necessary, to assess progress against the Correctional Plan. Contacts with the offender will include community visits to ensure the Parole Officer gathers information about the offender in his/her environment.
That all offenders have territorial boundaries fixed by their Parole Officer in which they must remain in at all times unless preapproval is granted by the Parole Officer in the form of a travel permit.
That community Parole Officers are required to gather information from the community by establishing a network of collateral contacts, including the offender’s support system and official personnel (i.e. police, psychologists etc).
That a Community Assessment is a report usually based on a face to face interview with a source of support for the offender that provides an overall assessment of the type of support they are able to provide the offender.
[145] In circumstance of increased risk concerns, parole authorities can take additional measures such as increasing the frequency of urinalysis, referral to mental health authorities or an increased rate of personal check-in, i.e. “2-hour visuals”.
[146] Where grounds exist respecting an offender on a LTSO of increased risk or a breach of conditions:
That upon receipt of any information that there is a potential increase in the level of risk, a breach of a condition, a positive urinalysis or that the offender has refused or is incapable of providing a urine sample, the Parole Officer will immediately inform the person with section 135 [CCRA] designated authority to determine the immediate course of action.
That if additional correctional interventions or control measures are not deemed sufficient to manage the risk, a warrant of suspension and apprehension will be issued by the person with designated authority.
That conditional release or a long-term supervision order can be suspended for the following reasons:
• When a breach of conditions has occurred
• To prevent a breach of conditions, or
• To protect society
[147] Following apprehension of an offender serving a LTSO:
(1) the matter will be further investigated including information provided by the offender with the prospect of a new release plan, for example, an additional strategy with additional control measures or new correctional interventions to manage risk – this will result in cancellation of the warrant
(2) If there is no alternative plan and the offender’s risk remains unmanageable in the community, the case may be referred to the PBC with a recommendation
That the process of issuing a warrant of suspension, apprehension and recommitment relating to a long-term supervision order is the same as for the suspension of a conditional release. Once the warrant is executed, the process differs significantly as revocation cannot be recommended and the suspension expires if more than 90 days pass or a breach charge is laid.
That long-term offenders are not subject to automatic suspension following a new conviction.
That possible CSC recommendations and Parole Board of Canada decision options for offenders subject to long-term supervision orders are as follows:
• Suspension cancelled
• Suspension cancelled with conditions altered
• Order the cancellation not to take effect until the expiration of a specified period ending on a date not later than the end of the 90 days in order to allow the offender to participate in a program that would help ensure that society is protected from the risk of the offender re-offending
• Referral to the Attorney General (of provinces or territory where offender is located) with a recommendation to lay information to charge the offender pursuant to section 753.3 of the Criminal Code
[148] An offender who, without reasonable excuse, fails or refuses to comply with a LTSO is liable to be found guilty of this indictable offence and subjected to reimprisonment for up to 10 years (Code, s. 753.3(1)). During the currency of such incarceration, the LTSO is “interrupted” until the sentence is completed (s. 753.4(1)).
[149] After the expiry of a LTSO and CSC supervision of an individual, where reasonable grounds exist to believe he may cause personal injury to a spouse or common-law spouse, he may be required to enter into a 12-month recognizance with conditions with successive annual recognizances where the prerequisite continues to exist. Breach of the recognizance may result in incarceration for up to one year (Code, s. 810).
[150] A dangerous offender serving an indeterminate sentence has no statutory right to release and must earn his conditional release. Such an offender is not eligible for full parole until he has served 7 years from the date of arrest. After the 7-year period, he is entitled to a re-review every 2 years (Code, s. 761(1)).
THE OFFENDER’S SECTION 726 CODE STATEMENT
[151] At the conclusion of the dangerous offender hearing, Mr. Beharri personally addressed the court conveying this information:
(1) an apology for again being before the courts
(2) recognition of the same “mistakes happen[ing] over and over again”
(3) as to the victim (A.S.):
I am very, very remorseful, deeply sorry and greatly regretful for all the pain, grief, suffering that I have caused my best friend [A.S.]. Because of me, she may never be the same again. I am truly sorry for what I did and I wish her nothing but the best in life. I wish and hope she can overcome her fears that I have caused her to let another boyfriend in her life, to find true happiness because she deserves to be happy with a person who can treat her right like every other good and healthy relationship.
I am also remorseful for [A.]’s parents, older brother, family and friends, for all the heartache and worrying I have caused them all because they all love [A.] very much and hate the fact of what I put [A.] through. Now they probably get scared when [A.] goes out or her being all alone at home, so I also want to say sorry and I’m very sorry for what I’m putting them through also.
(4) apology to his family for the grief, pain, worry and suffering he has caused them
(5) reflection on the harm he caused to S.M.:
But yet again, it’s not the only person I have hurt. The mother of my child, [S.M.], I have hurt her very deeply and she also may never be the same again because of the pain, hurt, shame and suffering that I have caused her. She tried to give everything -- she tried to give me everything and I would -- I would try to give her -- give her and Tiana everything too because Tiana -- because when Tiana was born, I wanted to change my life around and for some parts I did, but when my favourite uncle died, my close friend, and my best friend died all at the same year, I became a totally different person. So it all fell apart from then and I put [S.] through hell. That I am deeply sorry from now ‘til then but I have no one to blame but myself.
(6) sad and ashamed for the loss of Tiana (his daughter) and Marcus (A.S.’s son)
(7) the role of drugs in his life:
Your Honour, I can’t blame drugs for my actions that I have done but if I wasn’t doing it, I could have handled this all a different way. How I know this is because in my relationships with [S.M.] and [A.S.], we had good times when I wasn’t on drugs. Drugs was a big part of my bad behaviour because I let it get into my head and control me and do things I really regret today.
Drugs, I have no more interest in because it made me become a person I do not like. When I came out of OCI, I thought I had it under control but I really underestimated it and it got me again. So I’m going to make a huge change in my life because I want to -- because I want to become a better -- because I want to become better to myself and everyone out in society. To do this I will take any programs in and out of jail that you, Your Honour, Parole Board and parole officer sees fit for me to do.
(8) the OCI experience:
When I went to OCI, I have learned a lot of things I didn’t know before because I really never went to school in my life, so when I completed it and left OCI, I felt that I was a changed, new man and I was really happy about it. I started to do things on my own instead of asking people for help this time. I ended up taking an apprenticeship course for a construction craft worker at Local 183 in Toronto. The program was two courses, eight weeks for each. I started from 7:30 a.m. to 3:30 p.m. from Monday to Friday. After school I went to work at Furniture Club till eight. This happened ‘til I finished one course of the school and worked full time at -- at work. I was doing really good. This all started in the beginning of April 2011 when I was living with my mom but when I got on Facebook and found out my friend’s -- my friend’s grandpa in Hamilton was dying, and is passed away now, God rest his soul, I went -- I went because his grandpa did a lot for me when I was a teenager so I wanted to show him how good I was doing now and show him my respect also but I failed to realize what trouble I was putting myself into because I thought I had -- I had my drug under control by thinking I would never do again. I got caught up in the same circle I was in with my friends and I relapsed and started to use again. And yet again, I have no one to blame but myself but that is how it all started.
Your Honour, with all the tests and everything, I could’ve lied, refused, started to blame others but I didn’t because I wanted help. I want to make a big change in my life like I never wanted before. My whole life now is based on changing my life around. I really, really believe if a person is willing to do anything to change, it will happen
(9) preparedness to obey any release conditions imposed upon him including treatment and urinalysis testing if given the opportunity for eventual release on a LTSO:
Your Honour, I’ll do anything to prove to myself I can get better and be out in -- and be out in the community. I know I can get better because I was there but I underestimated the drug and thought I had it all under control. I didn’t and that’s my fault but it’s not going to happen again because I’m not -- I’m going to make sure of it. But give me -- but give me one more chance to prove I can be a normal citizen out in society but most of all -- but most importantly, a better me.
Your Honour, I am not -- I’m not saying don’t give me any time. I did something very hurtful and caused a lot of pain to [A.S.]. I was supposed to love and care for her for the reasons -- for the rest of our lives but because of my actions, it’s not going to happen that way. So for my crime I deserve some time and I’m willing to do it, just please give me that chance.
Your Honour, I think the long-term offender would be perfect for me because I understand the intensity of it and it will lead me into a better life out in the community. Also, I can prove to myself that I can become a normal person in society and the courts can really see how much I really want to better myself and straighten out my life. So with all of this said, please, Your Honour, give me one more last chance and I promise very deeply you won’t regret it.
POSITION OF THE PARTIES
The Prosecution
[152] On behalf of the Crown, Mr. Latimer submitted that on the evidence Daniel Beharri meets the criteria for a dangerous offender designation under both s. 753(a)(i) and (ii) of the Code. The dual qualification is relevant to future risk. The DO designation ought to attach to the convictions upon count #s 1 (assault bodily harm), 3 (aggravated assault), 4 (assault with a weapon), and 7 (sexual assault with a weapon).
[153] It is submitted that presumptively an indeterminate sentence should be imposed upon the finding of dangerous offender status. It was further submitted that there was no evidence in the application of any reasonable expectation that a lesser measure, including a finite period of incarceration followed by a LTSO, would adequately protect the public against the future commission of a serious personal injury offence.
[154] In terms of treatability, Crown counsel emphasizes the offender’s high risk to re-offend. He has an antisocial personality disorder with prominent psychotic traits – this, combined with a chronic substance use disorder and ongoing minimization of the role of alcohol in impacting upon his behaviour. There exists statistical support for the conclusion that the offender constitutes a high risk to reoffend.
[155] Mr. Latimer pointed to hurdles or obstacles to carceral treatment of the offender. While treatment is available and fulsome in the penitentiary system, and admittedly more intensive than available to the offender in the past, certain factors militate against successful treatment including the general untreatability of an antisocial personality disorder, a significant PCL-R rating, the offender’s low IQ and cognitive and learning limitations, a history of treatment not carried forward, a pattern of institutionalization followed by release and the commission of further offences, and questionable amenability and motivation for treatment.
[156] On the latter point, Crown counsel submitted that positive references in the application record are hearsay – all filtered through the psychiatric witnesses without benefit of the offender’s direct testimony. In addition, common sense dictates that an individual facing the prospect of a DO description and an indeterminate sentence would express willingness to be treated and to succeed in treatment. As well the offender has a demonstrated capacity to manipulate.
[157] It was submitted that the offender’s past history is the best predicator for the future. The offender has demonstrated an inability to incorporate teachings into community behaviour. He participated in the PARS and OCI treatments and relapses were concurrent or immediately following. The offender has proven himself unable and/or unwilling to respond to treatment.
[158] In terms of risk to the public were the offender released on a LTSO after serving a lengthy period of incarceration, Crown counsel accepted that CSC treatment opportunities are available and more significant than previously available to the offender. It is clear that appropriate treatment and supervision did not materialize after the OCI release. As well, it can be said that risk can to some degree be attenuated by the type of restrictive conditions which can be incorporated into a LTSO. Finally, Mr. Latimer recognized that the independent phenomenon of age-related decline in offending risk. All of this said, it was nevertheless submitted that a LTSO release would place the community at intolerable risk of reoffence. Repeating some of his submissions noted above, Crown counsel also emphasized that there was no evidence in the application hearing that whatever duration of treatment, programs taken, and supervision imposed, that the offender is capable of internalizing, or motivated to internalize, risks he poses in particular to females in the community.
[159] It was submitted that there is a superficiality about the offender’s purported participation in past treatment and programming – it appears that he has been smart enough to attend and contribute with no resultant impact on future behaviour.
[160] Despite a period of abstinence after the 2011 release from OCI, documented long-term substance abuse tells against future success. Although there is at least 12 years of attempting to engage the offender in substance abstinence, he has continually failed to harness his use of cocaine. It is said that there is an evidentiary basis in the record that the offender is in fact not concerned with treatment of addiction or substance abuse and that his past actions are more consistent with declining to be treated than being unable to achieve gains in the community. All treatment starts with the offender – here, the commitment has been persistently absent.
[161] In addition, in terms of amenability to comply with a conduct order such as a LTSO, the offender has amassed a dismal record of committing offences while on probation or when subject to a recognizance. While there is vocational training available in the penitentiary, it is difficult to see what job prospects would be available to the offender upon release in the community. He has little community support now and is likely to have no more years from now.
[162] Should the court be disposed to impose a finite sentence and a LTSO, Mr. Latimer submitted that, given the prominence of public protection, the totality and proportionality of incarceration become subservient principles. After credit for pre-sentence custody, a sentence of incarceration in the range of 10 to 15 years followed by a 10-year LTSO would amount to a fit sentence.
The Defence
[163] On behalf of the offender, Mr. Pyzer submitted that a fit sentence should take the form of a determinate sentence followed by a 10-year LTSO. On the basis of a reasonable expectation that such a disposition would adequately protect the public, the severity of an indeterminate sentence is unnecessary.
[164] Counsel submitted that with treatment, counselling and supervision, the offender’s risk to the public would be reduced to a tolerable level. The evidence in the dangerous offender application supports this conclusion beyond anything approaching mere hope or speculation. The evidence need not establish a cure for the offender’s psychiatric disorders, or an absence of any risk to the public, before a finite term of incarceration can be imposed.
[165] Mr. Pyzer reviewed the offender’s difficult childhood with an abusive father, parents’ separation when the offender was aged 8 or 9, an absence of parental supervision and poverty in the Jane/Finch area of Toronto. The offender’s extensive criminal record during the teenage/early adult acquisitive phase was in part a reflection of a youth left largely on his own. The offender always pled guilty to these crimes when charged.
[166] Counsel placed particular emphasis upon the offender’s chronic substance abuse problems. The use of crack cocaine is inextricably linked with much of the offending including physical conflict with domestic partners. At times, the negative influence of Jason Allarco was a factor in the offender’s criminality.
[167] In reviewing the offender’s time at OCI, counsel noted the institution reports as recording for the most part active and motivated progress. Some reports were quite glowing. An engaged, honest effort was exhibited during programming. This is relevant to prospects for future treatment. A negative sexual offender treatment program is partially explicable in light of the offender’s shame.
[168] The offender’s experience at OCI and thereafter is not determinative of the type of sentence to be imposed at this point. The treatment at OCI only scratched the surface of what was necessary to treat and counsel the offender. The programming was not intensive or of significant duration. On account of the offender’s learning difficulties, all materials were not fully assimilated. Then, on release, the offender was not connected to meaningful community treatment and monitoring.
[169] It was submitted that some gains were nevertheless realized on the offender’s release from OCI including the offender’s longest term of gainful employment, over a year of abstinence from cocaine use, an absence of negative peers and criminal self-support, and times of responsibility in his relationship with A.S. and her son.
[170] Mr. Pyzer noted the offender’s cooperation in the dangerous offender process including consent to the application for remand for assessment, phallometric testing, psychological testing, interviews with the doctors, the sought-after permission for Dr. Klassen to speak to S.M. and A.S., and agreement to a dangerous offender designation. The offender has accepted responsibility for his behaviour. There is evidence of the offender’s motivation for treatment and change.
[171] The offender does not suffer from a sexual deviancy and is not a psychopath. The traits of his antisocial personality disorder are inextricably linked to substance abuse. It was submitted that addiction control, treatment and supervision will reduce the risk of reoffending. There is real suggestion that he is treatable. The psychiatrists did not discount prospects for treatment. The offender has the capability, with accommodation of his cognitive limitations, to learn from treatment programming.
[172] The penitentiary system has the type and intensity and duration of programming required to focus upon the risk the offender has posed in domestic relationships. Treatment can be individualized to the offender’s needs and his learning disabilities properly accommodated. On release, the strict conditions of a LTSO together with CSC ongoing programming and supervision will serve to protect the public as learned concepts are applied in community-living.
[173] In addition, it was submitted, the offender’s aging process acting independently of any treatment/monitoring regime, supports the reasonable expectation of eventual risk management in the community. A determinate sentence of 8 to 12 years’ incarceration minus credit for presentence custody, together with a 10-year LTSO, would bring the offender toward the age of 50 discussed by the psychiatrists in their testimony.
ANALYSIS
The Part XXIV Application
General Principles
[174] Having regard to the “profoundly contextual nature of the sentencing process” (R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at paras. 15, 17), and the individualized nature of the process (R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 43), “the role of the sentencing judge is to impose a sentence that is fit”: R. v. Devaney (2006), 2006 CanLII 33666 (ON CA), 213 C.C.C. (3d) 264 (Ont. C.A.), at para. 12.
[175] Dangerous offender proceedings under Part XXIV of the Code form part of the sentencing process “and their interpretation must be guided by the fundamental purpose and principles of sentencing contained in ss. 718 to 718.2” of the Code: R. v. Johnson (2004), 2003 SCC 46, 177 C.C.C. (3d) 97 (S.C.C.), at paras. 23, 28; R. v. Osborne, 2014 MBCA 73, at para. 91. A dangerous offender proceeding is guided by the same evidentiary principles and objectives as other sentencing proceedings including that hearsay evidence must be reliable and credible: R. v. Ziegler, 2012 BCCA 353, at paras. 7, 11 (leave to appeal refused [2014] S.C.C.A. No. 491).
[176] On consent, the offender agreed to the remand for Dr. Klassen’s assessment pursuant to s. 752.1 of the Code:
752.1 APPLICATION FOR REMAND FOR ASSESSMENT – (1) On application by the prosecutor, if the court is of the opinion that there are reasonable grounds to believe that an offender who is convicted of a serious personal injury offence or an offence referred to in paragraph 753.1(2)(a) might be found to be a dangerous offender under section 753 or a long-term offender under section 753.1, the court shall, by order in writing, before sentence is imposed, remand the offender, for a period not exceeding 60 days, to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under section 753 or 753.1.
[177] A “serious personal injury offence” is defined in s. 752:
“serious personal injury offence” means
(a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, 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 on another person,
and for which the offender may be sentenced to imprisonment for ten years or more, or
(b) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault).
[178] Following receipt of Dr. Klassen’s report to the court, the Attorney General applied to have Daniel Beharri declared a dangerous offender based on the submission that the application record supported proof of the criteria described in s. 753(a)(i)(ii) and (b) of the Code:
- APPLICATION FOR FINDING THAT AN OFFENDER IS A DANGEROUS OFFENDER - (1) 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, 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; or
(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.
[179] The parties, having agreed that Mr. Beharri is properly declared a dangerous offender, focused their submissions on the sentence options then available to the court pursuant to s. 753(4) of the Code:
(4) SENTENCE FOR DANGEROUS OFFENDER - If the court finds an offender to be a dangerous offender, it shall
(a) impose a sentence of detention in a penitentiary for an indeterminate period;
(b) impose a sentence for the offence for which the offender has been convicted — which must be a minimum punishment of imprisonment for a term of two years — and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or
(c) impose a sentence for the offence for which the offender has been convicted.
[180] Subsection 753(4.1) further constrains the court’s discretion as to when the most severe sanction of an indeterminate sentence can be imposed:
(4.1) SENTENCE OF INDETERMINATE DETENTION - The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.
[181] With respect to the sentencing option of a LTSO, s. 753.1 of the Code provides that:
753.1 APPLICATION FOR FINDING THAT AN OFFENDER IS A LONG-TERM OFFENDER - (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that
(a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;
(b) there is a substantial risk that the offender will reoffend; and
(c) there is a reasonable possibility of eventual control of the risk in the community.
(2) SUBSTANTIAL RISK - The court shall be satisfied that there is a substantial risk that the offender will reoffend if
(a) the offender has been convicted of an offence under section 151 (sexual interference), 152 (invitation to sexual touching) or 153 (sexual exploitation), subsection 163.1(2) (making child pornography), 163.1(3) (distribution, etc., of child pornography), 163.1(4) (possession of child pornography) or 163.1(4.1) (accessing child pornography), section 170 (parent or guardian procuring sexual activity), 171 (householder permitting sexual activity), 171.1 (making sexually explicit material available to child), 172.1 (luring a child) or 172.2 (agreement or arrangement — sexual offence against child), subsection 173(2) (exposure) or section 271 (sexual assault), 272 (sexual assault with a weapon) 273 (aggravated sexual assault) or 279.011 (trafficking — person under 18 years) or subsection 279.02(2) (material benefit — trafficking of person under 18 years), 279.03(2) (withholding or destroying documents — trafficking of person under 18 years), 286.1(2) (obtaining sexual services for consideration from person under 18 years), 286.2(2) (material benefit from sexual services provided by person under 18 years) or 286.3(2) (procuring — person under 18 years), or has engaged in serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted; and
(b) the offender
(i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender’s causing death or injury to other persons or inflicting severe psychological damage on other persons, or
(ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences.
(3) SENTENCE FOR LONG-TERM OFFENDER - If the court finds an offender to be a long-term offender, it shall
(a) impose a sentence for the offence for which the offender has been convicted, which must be a minimum punishment of imprisonment for a term of two years; and
(b) order that the offender be subject to long-term supervision for a period that does not exceed 10 years.
[182] Accordingly, dangerous offender proceedings may conclude with the offender sentenced to indeterminate custody or to a determinate period of incarceration followed by a LTSO – in either instance, these “are exceptional sentences in our criminal justice system”: (R. v. Steele, 2014 SCC 61, [2014] 3 S.C.R. 138, at para. 1) and both are examples of “preventive sanctions”: R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423, at para. 19.
[183] An indeterminate disposition is generally considered to be “a drastic sentence” (R. v. Roberts (2007), 2007 ONCA 64, 219 C.C.C. (3d) 32 (Ont. C.A.), at para. 33), preventive detention “in its clearest and most extreme form” (Sipos, at para. 19), and a LTSO “less restrictive than the indeterminate period of incarceration” (Steele, at para. 42) while “consistent with “the principles of proportionality and moderation in the recourse to sentences involving a deprivation of liberty…””: L.M., at para. 42.
[184] In R. v. Lyons (1987), 1987 CanLII 25 (SCC), 37 C.C.C. (3d) 1 (S.C.C.), at p. 29, the court stated that the dangerous offender sentencing provisions “carefully define a very small group of offenders whose personal characteristics and particular circumstances militate strenuously in favour of preventative detention” – a carefully “tailored set of criteria…to segregate a group of highly dangerous criminals”.
[185] The overall and dominating objective of Part XXIV proceedings is protection of the public: Steele, at para. 27; R. v. B.(D.V.), 2010 ONCA 291, at para. 80 (leave to appeal refused [2011] S.C.C.A. No. 207); R. v. Severight, 2014 ABCA 25, at para. 4 (leave to appeal refused [2014] S.C.C.A. No. 184); Osborne, at para. 96; and R. v. Little (2007), 2007 ONCA 548, 225 C.C.C. (3d) 20 (Ont. C.A.), at para. 70 (leave to appeal refused [2008] S.C.C.A. No. 39).
[186] At paras. 29-31, of the Steele decision, the court stated:
The primary rationale for both indeterminate detention and long-term supervision under Part XXIV is public protection. Both sentences advance the “dominant purpose” of preventive detention identified by Dickson J. in Hatchwell v. The Queen, 1974 CanLII 203 (SCC), [1976] 1 S.C.R. 39, at p. 43, namely “to protect the public when the past conduct of the criminal demonstrates a propensity for crimes of violence against the person, and there is a real and present danger to life or limb”. When the constitutionality of the dangerous offender provisions came before this Court in R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, La Forest J., wrote at p. 329, “[Part XXIV] merely enables the court to accommodate its sentence to the common sense reality that the present condition of the offender is such that he or she is not inhibited by normal standards of behavioural restraint so that future violent acts can quite confidently be expected of that person” (emphasis in original). Lamer C.J. subsequently explained this rationale as follows in Currie, at para. 26: “Parliament has thus created a standard of preventive detention that measures an accused’s present condition according to past behaviour and patterns of conduct.” See also R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423, at para. 19.
Parliament amended Part XXIV in 1997 to create the category of “long-term offenders” and make it possible to supervise such offenders in the community, thus establishing an alternative to the indeterminate detention of persons designated as “dangerous offenders”. Long-term offenders, those who meet the criteria specified in s. 753.1(1), may be ordered to be subject to supervision in the community for a specified period (maximum of 10 years) after the expiry of a determinate sentence, which must be for a term of two years or more: s. 753.1(3). The purpose of the long-term supervision provisions is twofold: to protect the public and to rehabilitate offenders and facilitate their reintegration into the community: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 50.
In R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357, Iacobucci and Arbour JJ. considered the purpose of the long-term supervision provisions and the relationship between them and the dangerous offender provisions. At the time, the use of the word “may” indicated that, even if all the criteria were met, designation as either a long-term offender or a dangerous offender was discretionary. The Court held that, in light of the discretionary nature of a finding that an offender was a dangerous offender and given the principles of sentencing in s. 718.2 of the Criminal Code, a judge was required to consider finding an offender to be a long-term offender — inquiring in particular into the possibility of eventual control of the risk posed by the offender in the community — before imposing the harsher punishment applicable to a dangerous offender (para. 28; Sipos, at para. 22). Subsequent to the Court’s decision in Johnson, Parliament acted in 2008 to eliminate the judge’s discretion in the context of a dangerous offender application. The word “shall” now indicates that if a court is satisfied that the criteria in s. 753(1) have been met, it must find the offender to be a dangerous offender. In eliminating this discretion, however, Parliament built in a new flexibility regarding the consequences of such a finding. Before 2008, a court that found an offender to be a dangerous offender was obliged to (“shall”) impose a sentence of detention for an indeterminate period (Johnson, at para. 5). Today, a court that makes such a finding has the option of imposing an indeterminate sentence, a determinate sentence of two years or more combined with long-term supervision for up to 10 years, or a sentence for the offence for which the offender has been convicted: s. 753(4). It may impose one of the latter two sentences only if it is satisfied that the sentence will adequately protect the public: s. 753(4.1).
[187] With the 2008 legislative amendments to Part XXIV of the Code, a sentencing court shall declare an accused to be a dangerous offender who meets the relevant criteria with sentencing options available beyond compulsory indeterminate detention. In R. v. Szostak, 2014 ONCA 15, at para. 54 (leave to appeal refused [2014] S.C.C.A. No. 300), the court observed:
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.
[188] A pattern of repetitive or aggressive behaviour on the part of an offender within s. 753(1)(a)(i)(ii) is not a strict similar-fact-based analysis but rather an inquiry as to whether it has been established that the scrutinized conduct contains sufficient of the same elements of unrestrained dangerous conduct to be able to predict the offender will likely offend in a similar fashion in the future: Szostak, at paras. 56-7; R. v. Hogg, 2011 ONCA 840, at paras. 40, 43.
[189] The prosecution bears the burden of proving beyond a reasonable doubt the foundational platform for a dangerous offender finding having regard to the statutory criteria in s. 753(1)(a) and/or (b) of the Code.
[190] To sustain a dangerous offender order, the Crown is not, however, required to prove untreatability (R. v. Kopas, 2012 ONCA 16, at para. 1) or to prove beyond a reasonable doubt that there is no reasonable possibility/(now)expectation of eventual control in the community of the risk the offender presents: R. v. F.E.D., 2007 ONCA 246, at paras. 6, 38-55:
This is not an issue that requires either party to satisfy a burden of proof; rather, it is an issue for the sentencing judge concerning whether to exercise his or her discretion based on the whole of the evidence adduced. (para. 50)
See also R. v. J.K.L, 2012 ONCA 245, at paras. 75-79 (leave to appeal refused [2013] S.C.C.A. No. 116); R. v. Wormell (2005), 2005 BCCA 328, 198 C.C.C. (3d) 252 (B.C.C.A.), at paras. 31-35 (leave to appeal refused [2005] S.C.C.A. No. 371); and see Lyons, at pp. 364-5, and R. v. Currie, [1997] 2 S.C.R. 26, at para. 42.
[191] In the ordinary case, the court is assisted by the s. 752.1 assessment report as well as additional expert evidence in the hearing. The court is not required to accept the expert opinion testimony as it reaches its own conclusions: R. v. Hickey, [2008] O.J. No. 537 (C.A.), at para. 4; R. v. Allen (2007), 2007 ONCA 421, 221 C.C.C. (3d) 261 (Ont. C.A.), at para. 30; R. v. R.M., 2007 ONCA 872, [2007] O.J. No. 4856 (C.A.), at paras. 41, 53 (leave to appeal refused [2008] S.C.C.A. No. 91). It is for the court, without itself medically diagnosing the offender (R. v. Solano, 2014 ONCA 185, at para. 12), not the psychiatric experts, to predict whether an offender’s risk could be controlled in the community: R. v. M.L., 2015 ONCA 487, at para. 30. In reaching this determination, essentially a question of fact, ‘[j]udicial experience will play an important part”: Ferguson and Others v. Her Majesty’s Advocate, [2014] HCJAC 19, at para. 92.
[192] Section 753(4) provides a sentencing discretion to the court described as a “highly structural discretion”: Szostak, at para. 52. The discretion is “circumscribed” (Osborne, at para. 39) or “limited” (R. v. Warawa, 2011 ABCA 294, at para. 10 (leave to appeal refused [2012] S.C.C.A. No. 3)), by s. 753 (4.1) with the presumption toward an indeterminate disposition tempered by the opportunity for a lesser and proportionate sentence only where the public can be appropriately protected. This has been described as the “residual discretion” available to the sentencing court: R. v. Mattson, 2014 ABCA 178, at para. 26.
[193] The 2008 amendments to Part XXIV of the Code included a textual change from reasonable “possibility” to reasonable “expectation” that a lesser measure than indeterminate detention under s. 753(4)(b) or (c) would adequately protect members of the public from the offender committing murder or a serious personal injury offence. The interpretation of the modified language and the significance of the change from the predecessor text, if any, remains uncertain in this province with the Ontario Court of Appeal having, to this point, found it unnecessary to express a settled view on the subject: R. v. Sawyer, 2015 ONCA 602, at paras. 33-36; M.L., at paras. 23-24; R. v. Bennett, 2013 ONCA 471, at para. 11; R. v. D.M.L., 2012 ONCA 78, at paras. 3-5. Other courts have favoured the amendment as implicating a more exacting standard, for example, a belief that something will happen as opposed to a belief that something may happen: see Osborne, at paras. 58-60, 68-75 (and cases cited therein); R. v. D.J.S., 2015 BCCA 111, at para. 30; R. v. Bunn, 2014 SKCA 112, at paras. 36-38; R. v. Boutilier, 2015 BCSC 901, at paras. 157-8, 198-9, 210; R. v. Taylor, 2012 ONSC 1025, at paras. 344-346.
[194] At a minimum, the phrasing “reasonable expectation” requires an evidence-based evaluation, based upon objectively valid and relevant criteria, with probabilistic assessment exceeding chance, speculation, hope or mere possibility that something will happen. While the question arises as to any further probabilistic degree of satisfaction required of the court, given the priority for public safety animating Part XXIV determinations, I am prepared to look to satisfaction on a balance of probabilities in deciding the s. 753(4.1) “expectation” issue.
[195] Where the evidence fails to support the conclusion that a lesser measure, such as incarceration followed by a LTSO, itself “an extraordinary sentence” (R. v. Lemaigre, 2004 SKCA 125, at para. 13), will adequately protect the public, the court will exercise its discretion to impose indeterminate imprisonment.
[196] An indeterminate sentence, as a preventative protective sanction, is designed to address an elevated risk of future offending: Sipos, at para. 19. Such a disposition is not a perpetual sentence given the statutorily-mandated reviews: R. v. Walker ((2000), 2000 CanLII 16974 (ON CA), 137 O.A.C. 293 (C.A.), at p. 295; R. v. N.P.C. (2007), 2007 ONCA 457, 222 C.C.C. (3d) 559 (Ont. C.A.), at para. 53 (leave to appeal refused [2008] S.C.C.A. No. 144).
[197] The pathological intractability of an offender’s mental disorder linked to risk of reoffending “will be an important consideration for the sentencing judge in deciding what disposition to impose under s. 753(4) and (4.1)”: Szostak, at para. 62. This is evident, for example, in our history of incurable and untreatable psychopaths sentenced to indeterminate imprisonment: J.K.L., R. v. M.J.O., [2008] O.J. No. 1774 (C.A.); F.E.D., R. v. S.R.S. (2007), 2007 ONCA 36, 216 C.C.C. (3d) 119 (Ont. C.A.); Little; R. v. McCallum (2005), 2005 CanLII 8674 (ON CA), 201 C.C.C. (3d) 541 (Ont. C.A.) (leave to appeal refused [2006] S.C.C.A. No. 145); R. v. J.M.C., [2005] O.J. No. 176 (S.C.J.) (affd 2010 ONCA 432); J.F.H., [2002] O.J. No. 362 (S.C.J.) (affd [2006] O.J. No. 383 (C.A.)).
[198] In the balancing exercise to determine whether public protection can realistically be achieved by a disposition less severe than indeterminate, imprisonment, bearing in mind that “Parliament has provided that [such detention] should not be imposed unless there is no reasonable expectation that a lesser measure will be able to adequately protect the public” (Sawyer, at para. 30), the totality of the circumstances of a particular case must be scrutinized. There is no exhaustive menu of relevant factors for consideration as to whether an offender’s future conduct is likely to be inhibited by normal standards of behavioural restraint. Important are the nature and circumstances of the predicate crimes, criminal history of the offender, the nature and duration and intensity of his or her mental disorder, treatability, profile of previous compliance with orders and release conditions, expert risk assessments respecting likelihood of reoffending, attitude and motivation of the offender, community capacity to adequately monitor and supervise the offender upon release, etc.
[199] Reference to the relevant jurisprudence reveals exploration of a number of these subjects including the following:
(1) the degree to which the offender has been cooperative with the Part XXIV process
see: R. v. J.W.H., 2015 ONCA 617, at para. 3 (refusal to participate in s. 752.1 assessment); R. v. Paul, 2010 ONCA 696, at para. 16 (offender “refused to cooperate in several of the efforts made to assess him psychologically”); N.P.C., at para. 45 (refusal to participate in the assessment process); R. v. Edwards, 2008 ONCA 414, at para. 10 (refusal to be interviewed by psychiatrists); R. v. Grayer (2006), 2007 ONCA 13, 215 C.C.C. (3d) 505 (Ont. C.A.), at paras. 16, 67 (offender refused psychiatrist access to material witness and refused to discuss his involvement in the index offences and declined participation in phallometric testing; “hostile and non-cooperative attitude”)
(2) whether the offender has previously refused treatment or failed to take advantage of treatment opportunities
see: J.K.L., at para. 68 (offender’s history demonstrates “he did not follow through with the treatment providers…”); Solano, at para. 14 (offender had failed to take full advantage of measures available to him while detained and … on various release programs”); Attorney General for State of Queensland v. Hobbler, [2015] QSC 221, at paras. 17, 23, 34 (refusal to take sex offender program)
(3) whether the offender has been expelled from prior treatment programs
see: McCallum, at para. 40 (expulsion from sexual offender program); S.R.S., at para. 64 (offender removed from programs on account of inappropriate sexual behaviour and risk posed to female staff)
(4) whether the offender has previously refused to take prescribed medication or has unilaterally discontinued pharmacological treatment
see: M.L., at paras. 6, 15, 32 (long history of non-compliance with medication); R. v. M.B.H. (2004), 2004 CanLII 14199 (ON CA), 186 C.C.C. (3d) 62 (Ont. C.A.), at para. 30 (offender’s refusal to take sex drive reducing drugs)
(5) whether the offender has taken treatment in the past and if so whether it ultimately failed to reduce or control the offender’s risk to the public
see: Sawyer, at paras. 51-52 (offender had “been through intensive treatment” in the past); Mattson, at para. 25 (offender attended treatment programs in the past “and they were unsuccessful”); J.F.H. (S.C.J.), at para. 194 (expert recommending “more of the same” treatment which failed previously); Boutilier, at para. 24 (“consider whether an offender has been treated in the past”) and para. 206 (offender “has been through various treatment programs in the past with, at best, short-lived results”); Szostak, at para. 65 (offender yet to complete treatment programs available while incarcerated); B.(D.V.), at para. 4 (offender had received no “meaningful treatment while in prison”)
(6) is the offender motivated and committed to treatment?
see: R. v. May, 2011 ONCA 172, at para. 1 (offender “not motivated to obtain treatment”); N.P.C., at para. 46 (“resolute refusal to cooperate with any kind of treatment”); Little, at para. 43 (finding that offender “not committed to treatment”); B.(D.V.), at para. 25 (offender’s “ambivalence towards obtaining treatment”); Boutilier, at para. 163 (“The fact that an offender is not committed to his treatment is an indication of future risk”)
(7) are there realistic prospects for treating the offender’s mental disorder(s) having regard to relevant factors such as propensity and intractability?
see: M.L., at para. 32 (“no evidence that counselling would change the appellant’s insight”); J.F.H. (OCA), at para. 5 (“no realistic prospect of responsive treatment”); S.R.S., at para. 86 (compelling evidence that no treatment available); Boutilier, at para. 200 (no evidence of when offender “might overcome or control these addictions”); J.K.L., at para. 55 (“difficult if not impossible to treat”)
(8) respecting the predicate offences, is there a lack of insight, failure to accept responsibility, denial and minimization, a lack of empathy for the victim(s), absence of remorse?
see: Grayer, at paras. 17-18, 24, 42 (offender unremorseful, hostile to others for his convictions, in denial as to sexual offending problem); May, at paras. 1-2 (offender “rationalizes his behaviour”, “does not accept responsibility”); B.(D.V.), at paras. 23, 94 (minimization, denial); R. v. Eakin (2000), 2000 CanLII 2052 (ON CA), 132 O.A.C. 164 (C.A.), at para. 21 (leave to appeal refused [2000] S.C.C.A. No. 636) (failure to acknowledge responsibility for crimes, lack of remorse); Boutilier, at paras. 168-9 (failure to accept responsibility, lack of remorse, downplay of involvement relevant “to offender’s present and future dangerousness and to his prospects of treatment