R. v. Valle-Quintero, 2015 ONSC 6164
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
GUILLERMO VALLE-QUINTERO
Respondent
COUNSEL:
Paul D. Leishman, for the Crown
Self-represented Peter Boushy, Amicus Curiae
HEARD: June 4 & 28, August 27, September 19, November 29, 2013, January 10, 27, 31, April 24, May 27, October 17 & 24, November 4, 5, 6, 7, 13, 14, 2014, January 13, 14, 15, 16, March 23, August 19, 2015
RULING ON DANGEROUS OFFENDER APPLICATION
B. P. O’Marra, J.
ASSESSMENT ORDER
1On May 8, 2013, the crown filed an application for an order pursuant to s. 752.1 of the Criminal Code that Mr. Valle-Quintero be remanded for a psychiatric assessment by an expert for use as evidence on an application under s. 753 ( dangerous offender) or s. 753.1 (long term offender).
2Mr. Valle-Quintero opposed the application. He submitted then and thereafter that he should be sentenced in the traditional manner on the charges he was convicted of on August 30, 2012, by Justice A. O’Marra of this court. He further submitted then and thereafter that his accumulated pretrial custody on those charges exceeds what his sentence should be in any event. I received and considered both written and oral submissions from Mr. Valle-Quintero in response to the crown’s application
3In a ruling on August 27, 2013, I ordered that Mr. Valle-Quintero be remanded for an assessment. That ruling was based on the following:
(i) Mr. Valle-Quintero’s previous criminal behaviour as it relates to intimate female partners as victims;
(ii) two of the predicate convictions meet the definition of “serious personal injury offences” as defined in s. 752(a) of the Criminal Code.
4I was satisfied that Mr. Valle-Quintero might be found to be a dangerous offender or a long term offender. The designated expert was Dr. Scott Woodside.
INDEX OFFENCES RELATED TO JIAN LIN (Convictions entered August 30, 2012) The Issue
5The central issue of the trial was the credibility of the victim, Jian Lin. The defence contended that the crown had not proved its case beyond a reasonable doubt on counts one to six because the victim was neither credible nor reliable.
6Jian Lin, 47, is originally from China. She graduated from university with a Civil Engineering Degree. She married in 1995 and later emigrated to Canada with her husband and stepson in 1999. Shortly after arriving in Canada, she and her husband became the owners and operators in the bar business in Toronto. Initially, she was a licence holder. She divorced her husband in 2004. She continued in the bar business.
7In October of 2010, she was working as a manager in a bar. The owner of the bar was her stepson. While working there, in early November 2010, she met Mr. Valle-Quintero as a customer. She indicated that she was attracted initially to his outgoing personality and sense of optimism. Within a short period of time he asked her out and they became romantically involved and intimate. She testified that initially he bought her gifts, such as a fur jacket and perfume. She considered him to be a nice, kind and tender person.
8She worked most nights in the bar until closing time and a couple of hours thereafter in order to do the accounts. Mr. Valle-Quintero would frequently be at the bar. He did not appear to have employment and from time to time he would borrow Ms. Lin’s automobile. Often they would go together when Ms. Lin had to purchase supplies for the bar.
9She indicated he often wanted to drive her motor vehicle. She knew he did not have a licence. At some point she became quite concerned about his driving because of the manner in which he drove, which she considered to be crazy and dangerous.
The Court’s Review of the Evidence
10The first incident occurred on or around December 12, 2010, when Ms. Lin confronted Mr. Valle-Quintero about his erratic driving. He became angry and started pounding the car stereo panel. In order to get him to stop, Ms. Lin punched him three times in the face. After stopping the vehicle in the driveway, Mr. Valle-Quintero started to choke her. Ms. Lin acknowledged in her evidence that she omitted this last detail in her statements to the police and only recalled it at the preliminary inquiry.
11About ten days after the first incident, Ms. Lin told Mr. Valle-Quintero that she felt he was only using her for her car and her money. In response, Mr. Valle-Quintero became angry and choked her to unconsciousness. When she revived, Ms. Lin remembers that Mr. Valle-Quintero uttered threatening statements such as “If I can’t have you, no one can have you” and “if China lady die, I dig a hole in the wall and nobody find you”.
12The next incident occurred on or about December 28, 2010. Mr. Valle-Quintero answered Ms. Lin’s ringing phone and became jealous and angry when he discovered that the caller was a male friend of Ms. Lin. Mr. Valle-Quintero then knocked her unconscious off of a chair. She sustained a cut to the inside of her upper lip and swelling to the left side of her face.
13Ms. Lin thought that this incident occurred on the same night that she and Mr. Valle-Quintero went to visit friends of his. At their apartment, Ms. Lin left a Christmas card with a letter inside detailing the abuse that had taken place earlier, and asking for help. Ms. Lin testified that when Mr. Valle-Quintero learned of the letter, he made her go back with him to try to retrieve the letter.
14On December 29, 2010, at 5:54 a.m., Ms. Lin video-recorded herself in the storage closet of the bar where she worked. In the recording she expressed fear for her life and named Mr. Valle-Quintero as the person who punched her, and as the person who would be responsible “if anything happen to me”. She explicitly exhibited the swollen left side of her face and the cut on the inside of her upper lip to the camera. Ms. Lin told a waitress who worked at the bar to give the videotape to the police if anything should happen to her.
15In the early hours of January 21, 2011, Ms. Lin went to Mr. Valle-Quintero’s residence after work. He was evidently jealous about her friendship with some of the customers at the bar where she worked. Mr. Valle-Quintero exploded with anger as she lay on the bed and started to hit her, first with his hand in a fist but with the middle finger knuckle raised up. When she started to scream, Mr. Valle-Quintero put a pillow over her face. She could not breathe and had to use both of her hands to push the pillow away.
16On the morning of January 21, 2011, Ms. Lin walked to the nearby police station to report what had happened. At the front desk, she indicated why she was there and waited for a half-hour to speak with someone. She left before anyone spoke to her and went back to her vehicle outside Mr. Valle-Quintero’s residence. She then went to the bar where she worked with Mr. Valle-Quintero. When they entered the bar, the police were there, based on information that Ms. Lin had left at the front desk of the police station.
17Constable Kristen Pollard testified that when she spoke with Ms. Lin outside the bar, the latter was very nervous and agitated. Ms. Lin told the officers that she was afraid Mr. Valle-Quintero was going to kill her.
18By the time the officers returned to the bar to arrest Mr. Valle-Quintero, he had absconded. He was later located, arrested and detained.
19When Mr. Valle-Quintero was detained, the court made an order under s. 516(2) of the Criminal Code that he was not to have any communication, directly or indirectly, with Ms. Lin. Nevertheless, soon afterwards Ms. Lin began to receive phone calls from Mr. Valle-Quintero at the bar. During the first phone call, Ms. Lin told Mr. Valle-Quintero that he was not supposed to call her. He replied to the effect that he was aware of the prohibition but that the police would never find out. Mr. Valle-Quintero called her almost daily, sometimes twice a day. In these telephone conversations, Mr. Valle-Quintero expressed a desire that Ms. Lin go to court to say “it didn’t happen or that it was an accident”. He also pressed her to speak to his lawyer and admit anything asked. Later, Ms. Lin started receiving letters from Mr. Valle-Quintero, addressed to himself and mailed to his residence where he told her she could come and pick them up.
The Court’s Findings on the Credibility and Reliability of the Complainant
20The court found Ms. Lin to be credible and reliable.
21Ms. Lin was found to be straightforward and non-evasive in her manner of testifying. She was candid in her responses to questions, and she admitted without hesitation that she struck Mr. Valle-Quintero in the face on the occasion when he pounded on her car stereo.
22More importantly, crucial aspects of her testimony were corroborated by other confirmatory evidence, such as:
(i) the videotape she made of herself in the storage closet of the bar on December 29, 2010, when she was in fear of her life;
(ii) the photograph of her lip taken by the police on January 21, 2011, showing a healing cut;
(iii) the Christmas card that Ms. Lin left which contained a letter that spoke of the abuse she was suffering;
(iv) the damage to Ms. Lin’s motor vehicle.
23Concerning defence counsel’s point that, after the first instances of the abuse, Ms. Lin did not complain to the police and continued to see Mr. Valle-Quintero, the court referred to R. v. D.D. (2002), 2 S.C.R. 275 for the proposition that a delay in disclosure alone will never give rise to an adverse inference on the credibility of the victim.
24The court also accepted that (i) while fearful of Mr. Valle-Quintero, Ms. Lin was conflicted and confused about her feelings for him; and (ii) she helped him after his initial detention in order to protect herself and to prevent possible retaliation.
25The court found there was no substance or merit in defence counsel’s argument that there was a reasonable doubt about the guilt of the accused because of inadequacies in the police investigation.
The Court’s Findings Concerning the Guilt of the Accused
- Based on the evidence of the complainant, the court found Mr. Valle-Quintero guilty of counts one, two, three, four, five, six and eight:
Count One: Mr. Valle-Quintero assaulted Ms. Lin when he choked her to unconsciousness on or about December 22, 2010. Count Two: Mr. Valle-Quintero threatened Ms. Lin with death when he said “if I can’t have you, nobody can”, and when he speculated about hiding her body in a wall if she died.
Count Three: Mr. Valle-Quintero assaulted Ms. Lin on December 28, 2010, when he rendered her unconscious by knocking her off of a chair.
Count Four: Mr. Valle-Quintero assaulted Ms. Lin on January 21, 2011, when he placed a pillow over her face.
Count Five: Mr. Valle-Quintero committed unlawful damage to Ms. Lin’s property by breaking the stereo panel in her vehicle on or about December 12, 2010.
Count Six: Mr. Valle-Quintero attempted to obstruct justice while in jail by communicating with Ms. Lin and trying to persuade her to recant her statement of complaint to the police.
Count Eight: Mr. Valle-Quintero disobeyed a court order pursuant to s. 516(2) of the Criminal Code by communicating with Ms. Lin between January 29 and February 28, 2011.
26A. O’Marra J. deferred the trial on count seven, failure to comply with a condition of a recognizance ordered under s. 810.2, until the completion of the other counts. An abuse of process argument related to this count was later dismissed and a conviction was entered. SERIOUS PERSONAL INJURY OFFENCES
27Counts #4 and #6 of the convictions entered on August 30, 2012, meet the definition of “serious personal injury offences”. Assault with a weapon and attempt to obstruct justice both have a maximum penalty of 10 years in prison. In R. v. S.M., [2005] O.J. No. 1041 (C.A.) the court held that this category of “serious personal injury offences” is not restricted to offences against the person. The judgment of August 30, 2012 referred to the victim being conflicted about Mr. Valle-Quintero after his arrest and detention. He tried to persuade her to recant. She feared what he might do to her upon his release. This was conduct that actually inflicted or was likely to inflict severe psychological damage on her.
CONVICTIONS RELATED TO TELMA QUEZADA (Events in November, 1998)
28In 2002, the Court of Appeal, [2002] O.J. No. 4107, provided a comprehensive review of the proceedings at Mr. Valle-Quintero’s trial for the attempted murder of Ms. Telma Quezada, and dismissed Mr. Valle-Quintero’s appeals from Minard J.’s conviction and sentence at trial. The following are extensive excerpts from the appeal judgment:
1 The appellant was convicted of the attempted murder of his former girlfriend, Telma Quezada, and sentenced to ten years and four months imprisonment. He was found not guilty of uttering a threat to cause death, but was convicted of the lesser and included offence of uttering a threat to cause bodily harm. He received a concurrent sentence of six months imprisonment for that offence. In addition, following pleas of guilty, he was convicted of the offences of unlawful confinement, breach of recognizance of bail, and breach of probation. He received a concurrent sentence of six years imprisonment, a consecutive sentence of one year imprisonment, and a concurrent sentence of six months imprisonment, respectively, in connection with those convictions. He was found not guilty on a charge of possession of a weapon for the purpose of committing murder. The total sentence imposed was eleven years and four months imprisonment. He appeals his convictions of attempted murder and threatening to cause bodily harm and seeks leave to appeal his sentence.
3 The grounds of appeal on the convictions appeal require a detailed review of the evidence. The background facts in this case are horrific (emphasis added). I summarize them as follows.
4 The appellant married a Canadian woman in Cuba in 1996. On May 11, 1997, he moved to Canada from Cuba to join his wife. He met the complainant, Telma Quezada, eleven days later and soon began an intimate affair with her which continued, with some interruptions, for approximately eighteen months.
5 While the relationship between the appellant and the complainant was initially unproblematic, over time it became turbulent. It was the Crown’s theory that the appellant became increasingly abusive, manipulative and controlling of the complainant.
6 In January 1998, the complainant was convicted of assaulting the appellant after an altercation between the appellant and the complainant’s teenaged son. She received a suspended sentence and probation. In April 1998, the appellant was convicted of assaulting the complainant; he received a suspended sentence and one year probation. His probation order required him to keep the peace and be of good behaviour, and to attend and actively participate in anger management counselling.
7 At some point in 1997 or early 1998, the appellant concluded that the complainant was working in Scarborough at a massage parlour, an activity which he considered to be immoral. The appellant photographed the complainant at the massage parlour. The complainant told him that she was attempting to buy the massage parlour business and that she was not working there. The appellant believed that she was lying to him and engaging in activities which shamed him and of which he disapproved.
8 In July 1998, the complainant travelled to California, where she had previously lived. The appellant followed the complainant there, without prior notice to her. He took photographs of a massage parlour, where he believed her to be working. He also photographed a car that was parked at the massage parlour; the complainant had been driving the car during her stay in California. An argument ensued when the appellant confronted the complainant with the photographs.
9 In September 1998, the complainant returned to Canada. In early November 1998, the relationship between the appellant and the complainant terminated. The appellant claimed that he decided to return to his wife, and that he left the complainant’s apartment on November 4, 1998, taking his belongings with him. On the same day, the complainant lodged an assault complaint against the appellant, relating to an incident which allegedly occurred in mid-October 1998. The appellant was arrested on November 14, 1998 and released on bail on November 18, 1998. His bail conditions provided that he not communicate with the complainant, that he not be within 500 metres of her home or workplace, and that he keep the peace and be of good behaviour.
10 On the night of November 18, 1998, notwithstanding the terms of his bail, the appellant telephoned the girlfriend of the complainant’s son and indicated that he wanted to make contact with the complainant to talk about his pending assault charge. The girlfriend told him that he was not to contact the complainant because of a court order. Nevertheless, he asked her to arrange a three-way call with the complainant for the next day. She agreed to do so.
11 The next morning, before any call to the complainant took place, the appellant went to the underground parking garage of the complainant’s residence. The Crown alleged that the appellant brought with him a plastic bag containing duct tape, cloth ties, and a four foot long yellow canvas bag, for the purpose of killing the complainant.
12 The complainant testified that, while she was backing her car out of her parking space, the appellant jumped into the car and forced her into the back seat. He told her that he wanted to be with her “for the last time”. The complainant noticed a plastic bag beside her on the back seat of the car, and observed that it contained silver tape, a yellow canvas bag, and a ball of what appeared to her to be rope or laces. The appellant grabbed the plastic bag from the complainant and threw it to the floor. He then tied the complainant’s hands and feet and, after unsuccessfully trying to force a sponge or a piece of foam into the complainant’s mouth, wrapped duct tape around her mouth, nose and chin.
13 The appellant showed the canvas bag to the complainant, saying “this is for you”. The appellant then placed a bag over the complainant’s head and face and secured it by wrapping duct tape around her head several times. The complainant’s testimony referred to the canvas bag being on her head. She did not mention the plastic bag. It was the Crown’s theory that the appellant first placed the plastic bag over the complainant’s head, secured it with duct tape, and then placed the canvas bag over her head.
14 After the “bag” was placed over the complainant’s head and secured with tape, the appellant locked the complainant in the trunk of her car and drove away.
15 The complainant struggled strenuously to free herself. She testified that she freed one hand, untied her feet, and pulled the “bag” from her face and head. She attempted to hide the “bag” by placing it near the car’s signal lights. She removed the tape from her mouth and nose, removing her false nails in order to do so. When she could not open the trunk lid, she stuck her fingers out of the trunk to attract the attention of other drivers. Thereafter, according to her evidence, she heard the sound of a car horn. Within seconds, the appellant stopped the car at a busy strip mall plaza.
16 The appellant parked the car at the back of the plaza, near a wooden enclosure containing two garbage dumpsters. The appellant opened the trunk after telling the complainant to put her fingers back inside. When the trunk was opened, the complainant tried to jump out, but the appellant pushed her back. She tried again to jump out and succeeded in doing so. The appellant grabbed her by her jacket and took her closer to the garbage dumpsters. According to the complainant, the appellant told her to keep quiet and to get back inside the car. He threatened to stop her, or stab her with a knife, if she did not do so. The complainant told the appellant that she would do as he asked if he threw away the knife. She believed that he did so, whereupon she sat down on the curb.
17 In addition to the complainant, various investigating police officers and medical personnel, the Crown called four bystanders as witnesses who observed various events between the appellant and the complainant at the plaza. None of those witnesses saw the appellant with a knife or other weapon. The police searched the area; no weapon was recovered.
18 As a result of interventions by at least two of the bystanders, one of whom told the appellant that he was going to call the police, the appellant walked around the corner of a building at the plaza and disappeared. The complainant was assisted into a restaurant in the plaza, and the police and an ambulance were called.
19 The appellant testified that, on leaving the plaza, he approached a passing motorist and asked for a ride. He then approached a passing police cruiser. He told the police that his car had been stolen by three youths. He was allowed to leave and did so. The next day, after hearing on the news that the police were looking for him, he surrendered to the police and provided a videotaped statement.
20 Investigating police officers found both a yellow canvas bag and a grey plastic bag inside the trunk of the complainant’s car. The plastic bag was torn, had large amounts of silver duct tape wrapped around the handles area, and had a substance on the outside surface of the bag which appeared to be blood. At trial, the officer-in-charge of the investigation testified that the plastic bag also had hair attached to it.
21 In contrast, when found by the police, the yellow canvas bag had no duct tape, blood-like stains or hair on or attached to it. The canvas bag was approximately four feet long and two feet wide. It had a hemp rope closure.
22 The defence position came from the evidence of the appellant. He admitted many of the facts alleged by the Crown. He acknowledged attending at the complainant’s parking garage on November 19, 1998, but claimed that he did so to discuss with the complainant his forthcoming court appearance on the pending assault charge for the purpose of urging her to “tell the truth”. He also said that he wished to return some photographs to her. It was the appellant’s position that the complainant had fabricated the assault charge against him, in revenge for his leaving her to return to his wife.
23 The appellant also acknowledged tying the complainant up, placing duct tape around her face, placing the yellow canvas bag over her head, and locking her in the trunk of her car; however, he said that he did so for the purpose of taking her to a coffee shop to talk because the complainant had refused to talk with him in the car. He denied bringing the plastic bag, duct tape, cloth ties, and canvas bag to the underground parking garage on the morning of the incident. He said that those items were already in the complainant’s car or garage. He denied placing a plastic bag over the complainant’s head or having a knife in his possession, and he claimed that he never intended to kill her. It was the defence position that the appellant lacked the requisite intent to commit murder. The appellant also submitted that, since there was no reliable evidence of the existence of a knife and the complainant’s testimony regarding the alleged threat was inextricably linked to her testimony concerning the knife, the charge of uttering a threat to cause death or bodily harm had not been proven.
24 The information against the appellant alleged that he attempted to murder the complainant “by placing a plastic bag over her head, taping it, [and] tieing [sic] both hands and feet” [emphasis added].
26 The appellant conceded that he had tied the complainant’s hands and feet. The trial judge found as a fact that the appellant had placed a plastic bag over the complainant’s head and secured it with duct tape. He concluded, therefore, that the Crown had proved the actus reus of the offence of attempted murder, as particularized. Before this court, Crown counsel acknowledged that the attempted murder conviction rests on the reasonableness of the trial judge’s finding that the appellant placed a plastic bag over the complainant’s head and secured it with duct tape.
27 The trial judge’s analysis of the evidence concerning the use of the plastic bag began with reference to the complainant’s testimony on the issue, which he described as follows:
The next issue to be determined is whether the plastic bag was put over the complainant’s head and secured with duct tape, or not. The complainant is not sure. She does not recall the plastic bag, and her narrative of events does not include it being put on her head; but does contain a vivid description of her efforts to remove the canvas bag which had been put on her head and to secrete it in a corner of the trunk [emphasis added].
28 The trial judge next observed that the appellant denied putting the plastic bag on the complainant’s head and securing it with duct tape. Thereafter, the trial judge set out in detail the basis for his conclusion that, despite the appellant’s denial, that had in fact occurred:
I have considered the matter as carefully as I can, and particularly I have examined the plastic bag, being exhibit 10, very carefully. I conclude that I have been satisfied beyond a reasonable doubt that the bag was, in fact, put over her head and secured by the duct tape. Why have I come to that conclusion? Exhibit 10 was recovered in the trunk. There was blood on it, no doubt from the complainant’s torn fingernails in her desperate and flailing attempts to remove the bags from her head and to assist her in breathing. The duct tape on the plastic bag is a substantial amount, and it is wound around the handles area of the bag exactly where one would expect it to be in order to secure it over a person’s head. The location and the amount, and the manner of the securing of the duct tape on the bag are clearly not consistent with a terrified complainant trying to remove duct tape from the canvas bag, or from her face area, and in her flailing efforts torn pieces of duct tape happened to get stuck to the bag. This duct tape was deliberately applied to this bag. There is a significant hole in the bag exactly where one would expect the complainant’s mouth and nose to be consistent with her desperate efforts to remove whatever was impeding her from breathing. The complainant’s inability to recall the plastic bag is understandable in the circumstances. She was fighting for her life in the trunk of a car, and the first thing she would be grappling with was the much heavier, more substantial yellow, canvas bag that had been placed over her head. Her inability to specifically recall removing the plastic bag does not surprise. There was no duct tape on the canvas bag. The bag could be secured by the drawstring. If the bag was secured by the duct tape, one would expect some evidence of this on the canvas bag, but the duct tape is on the plastic bag, not the canvas bag.
The defendant denies use of the plastic bag and in support of this [his counsel at trial] relies on the denial of the use of the plastic bag given to the police by the accused in the video tape statement taken on November 20th. I watched him very carefully when he was asked concerning the bag and whether or not he put a plastic bag on her head. He hesitated when he answered, and then he repeated the question before he answered it. His demeanour in responding to the question did not assist in a positive assessment of his credibility on this issue. I therefore conclude that notwithstanding the denial of the accused, and the complainant’s inability to recall, I have been nonetheless satisfied beyond a reasonable doubt that the accused placed a plastic bag over the head of the complainant and secured it with duct tape.
30 The issue of the use of the plastic bag by the appellant turned in part on an assessment of the credibility of the appellant’s denial that he placed the plastic bag over the complainant’s head and secured it with duct tape. The trial judge expressly considered and rejected the appellant’s version of events concerning the plastic bag, as he was entitled to do. His assessment of the appellant’s credibility is entitled to considerable deference from this court: See, for example, Housen v. Nikolaisen, 2002 SCC 33, 211 D.L.R. (4th) 577 at 587–91 (S.C.C.) and R. v. S. (P.L.), [1991] 1 S.C.R. 909 at 931.
41 The trial judge’s conclusion concerning the appellant’s use of the plastic bag was a critical finding of fact to which the trial judge devoted considerable attention in his reasons. Unless it was not reasonably supported by the evidence, such a finding does not permit of appellate intervention: R. v. W. (R.), 74 C.C.C. (3d) 134 (S.C.C.). I have no hesitation in concluding that the evidence amply supported the trial judge’s finding. Therefore, I would not give effect to this ground of appeal.
b) Whether the trial judge misdirected himself as to the requisite mens rea of attempted murder
47 The trial judge next reviewed in detail, and rejected, the arguments the appellant advanced to support his contention that he did not intend to kill the complainant. The trial judge concluded:
[Defence counsel] also argues that the tape around the mouth and nose was more life-threatening than the plastic bag secured as it was by the duct tape. I have considered this argument and reject it. In doing so, I have considered the following. You can’t ignore that the duct tape was put over her mouth and nose and wound around her head numerous times. This would obviously make breathing very difficult, if not near impossible. But placing the plastic bag over the head and face and further securing it by the duct tape was a further means of ensuring the complainant would not be able to breathe. Add to this that he then puts a duffle bag over her head and further secures it will further make it virtually impossible for the complainant, in these circumstances, to breathe at all. The information says, and charges, an attempt to murder by placing a plastic bag over her head, taping it and tying her up. To tie her up was an essential part of his goal to suffocate her if, indeed, this was his goal. And the plastic bag secured as it was around her head would clearly assist, and aid, and quicken the suffocation process. This, in my view, is enough to return a finding of guilt given the wording in the information if I am satisfied on the whole of the evidence that the accused had such an intention to kill by suffocation.
The natural consequences of the accused’s action of securing her in the trunk as he did, absent her being able to undo the cloth tie-wraps, would have been death by suffocation. The accused tied her up, including hands behind the back to ensure she would not loose the wraps. He must have known in those circumstances that the natural consequence of these actions, as I have stated, was death by asphyxiation. I conclude therefore that this was his intent. The cumulative weight of the points argued by the defence do not cause me to have a reasonable doubt about that. To this end I concur with the points and items raised and relied upon by the Crown. I therefore find the accused guilty of the count of attempted murder [emphasis added].
52 I conclude that the trial judge drew a permissible inference of the requisite subjective intent for attempted murder from the facts established by the evidence and accepted by him. Many of those critical facts were conceded by the appellant. On the demonstrated facts, such an inference reasonably and logically could be drawn (see Morrissey, at 530).
(2) Appeal of the Conviction for Threatening to Cause Bodily Harm
54 The trial judge had a reasonable doubt concerning the reliability of the complainant’s evidence regarding the existence of a knife. In particular, he noted that the police had been unable to locate a knife or similar weapon during their investigation, and that the complainant herself had conceded on cross-examination that she may have been mistaken about the existence of a knife. As I mentioned earlier, none of the bystanders to the incident in the plaza observed the appellant with a knife or other weapon, and the appellant denied having a knife. Accordingly, the trial judge acquitted the appellant of the charge of possession of a knife, or imitation thereof, for the purpose of committing murder.
56 The trial judge gave the following reasons for finding the appellant guilty of threatening to cause bodily harm to the complainant:
I propose now to consider count number four, which is the charge of possession of a knife, or imitation thereof for the purpose of committing murder. This is linked with count number three concerning the threat to cause death to Telma Quezada, that arises in factual circumstances where the two are near the dumpster at the rear of Panini’s Bakery. And it is Telma Quezada’s evidence that the accused had in his hand what appeared to be a silver kitchen knife, and that he threatened to stab her with it if she did not remain quiet and stop doing things that would draw attention to the two of them.
The complainant recalls that there was such a knife which the defendant in a motion of throwing his hand over his shoulder she believed had deposited it in the dumpster area after she had assured him that if he would get rid of the knife that she would comply with his request. The police have conducted a thorough search of the dumpster and the area around it and have found no knife, or anything akin to a knife. A silver X-acto knife was found in the vehicle, but there is no suggestion on the whole of the evidence that this may have been what was in the accused’s hand. The complainant admits, obviously reluctantly, that she may have been mistaken about the knife, or object in the accused’s hand that he had at the time that he threatened to stab her with. The evidence is not such that the court can conclude beyond a reasonable doubt that at the time the alleged threat was made the accused had a knife in his hand. Accordingly, I have a reasonable doubt on this issue and the accused will be found not guilty on count four.
That leaves the consideration then of count three, the threatening to cause death. I have found a reasonable doubt with respect to the reliability of the complainant’s evidence concerning the existence of [sic] knife. Is it possible, therefore, to be satisfied beyond a reasonable doubt that such a threat was made. I conclude that it is. The complainant may or may not have been mistaken about an object or a knife in the accused’s hands, but she clearly recalls the threat that was made in circumstances where one would expect such a threat would, indeed, be made. And her evidence on this, in my view, is credible and reliable. He was desperate to keep her quiet and to have her behave as if nothing was wrong and to get her back to the car. The civilians who have testified were closing in, and he was trying hard to convince them that this was no big deal. The charge is threatening to kill. The evidence is that he threatened to stab her. The appropriate charge, therefore, is threaten to cause bodily harm, a lesser and included offence. I have considered this matter and the evidence in support of it as carefully and objectively as I can, and I conclude that the Crown has made out the offence: that is, the lesser and included offence of threaten to cause bodily [harm] by threatening to stab her, beyond a reasonable doubt. And I therefore find the accused guilty of this lesser and included offence.
64 Moreover, proof of the offence of threatening to cause bodily harm was not dependent upon demonstration of the existence of a knife or other weapon. The actus reus of the offence is the uttering of the threat. The trial judge found the complainant’s evidence about the fact of a threat to be credible and reliable. It was open to the trial judge to accept the complainant’s evidence that the appellant had threatened to “stab” and “stop” her. On her evidence, it is clear that the words spoken were intended to be taken seriously and to instil fear. Accordingly, the trial judge’s conclusion that the appellant threatened to cause bodily harm to the complainant was neither perverse nor unreasonable.
(3) Appeal as to Sentence
(a) Psychological harm
66 By the time of the appellant’s sentencing hearing, the complainant had experienced a change of heart regarding the appellant and was visiting him in jail on a frequent basis. She testified at the sentencing hearing that she had not suffered any psychological problems arising from the incident in question and urged that the appellant receive the “most minimum sentence”. The trial judge stated:
It was obvious from the manner of her testimony at the trial that she was traumatized and remains traumatized by this incident. And this, in my view, only accords with common sense. She will never be able to entirely put this incident behind her. And the fact that she now claims that she’s fine is, in my view, more testament to the defendant’s influence over her, and his manipulative skills with respect to the complainant.
The appellant argues that the trial judge erred in reaching those conclusions, in the absence of direct evidence of psychological harm to the complainant. I am unable to accept that submission.
67 There was clear evidence at trial of the trauma visited upon the complainant by the appellant. Moreover, the pre-sentence report concerning the appellant contained this concluding passage:
It is the opinion of the writer that the subject is a manipulative, violent and duplicitous individual who does not possess the capacity or the desire to understand either the gravity or potential consequences of his actions.
It was open to the trial judge to conclude on that evidence that the complainant’s change of heart concerning the appellant and her claim of no psychological harm was the product of the appellant’s continuing control over, and manipulation of, her following his convictions. I think that the trial judge’s approach during sentencing to the effect of the incident on the complainant was without error and grounded on the evidentiary record.
70 The trial judge noted numerous serious aggravating factors in this case. They included the fact that: i) the nature of the offence was very serious and arose out of a domestic situation; ii) a significant degree of planning and deliberation was involved, including bringing to the complainant’s garage the items that were used in commission of the offence; iii) the offence occurred immediately after the appellant was released on bail, the primary terms of which “he honoured in the immediate breach…”; iv) the appellant had a prior conviction for an assault against the complainant; v) there was a history of stalking between the complainant and the appellant; and vi) the appellant’s attitude towards the complainant was one of dominance, possessiveness and jealousy.
71 Those aggravating factors warrant a significant penitentiary sentence which clearly repudiates and denounces the type of conduct in which the appellant engaged: R. v. Denkers (F.P.), 69 O.A.C. 391 (C.A.). The fact that the attempted murder occurred while the appellant was on bail, on terms designed to protect the complainant, was but one relevant factor which the trial judge could, and did, consider in fashioning a proper sentence. It formed part of the overall context in which the offence occurred and bore directly on the circumstances of the appellant relevant to sentencing. Here, the sentence imposed by the trial judge was not directed only or primarily at that aspect of the appellant’s misconduct. Rather, the trial judge considered the need for specific and general deterrence and fashioned a lengthy sentence of imprisonment to denounce all of the appellant’s conduct. In R. v. Bates (D.R.), 134 O.A.C. 156 (C.A.), this court emphasized how critical it is that offenders not breach court orders or their undertakings to the court while on release. The trial judge’s approach to the issue, in my view, was both necessary and proper.
72 The trial judge also stated in his reasons for sentence:
I have considered carefully whether there is any presence of remorse in this case, and I find that there is none. In so finding, I’ve considered that the accused refused anger management counselling which was a term of the probation order on his assault conviction. …The accused, in his testimony, it is clear, still does not believe that he requires any kind of such counselling.
He testified that the only person in his life that he hasn’t been able to get along with was the complainant. And this, in my view, speaks volumes with respect to his attitude, and the fact that in his heart he believes that the real problem here is not with him but with the complainant. The lack of remorse has further been commented upon in the pre-sentence report and, in my view, any present protestations of remorse are not genuine.
73 In making those observations the trial judge was properly concerned with the appellant’s prospects for rehabilitation because he refused to take treatment and failed to accept responsibility for his own actions. The trial judge acknowledged that the appellant claimed at his sentencing hearing to be remorseful, but also noted that the post-convictions material indicated that the appellant was at “great risk to re-offend”. The pre-sentence report contained the following statement: “[T]he subject presented as an individual who has been wronged both by his lover and by the justice system. He exhibited absolutely no remorse for his actions and adamantly maintained that he was justified in engaging in such behaviour.” The trial judge was entitled to take such evidence into account in assessing the credibility of the appellant’s claim of remorse for the purpose of arriving at a fit sentence.
75 The nature of the offences committed by the appellant is grave and the circumstances surrounding their commission are repugnant and violent (emphasis added). The trial judge applied the proper principles to sentencing and considered the circumstances of the offence and of the appellant. The sentence imposed was within the acceptable range of sentences for similar offences. Accordingly, I conclude that there is no basis on which appellate interference with that sentence is justified.
MR. VALLE-QUINTERO’S CRIMINAL RECORD
29Mr. Valle-Quintero has a criminal record commencing in 1998, shortly after he arrived in Canada. The record consists of crimes of violence against domestic partners, breaches of court orders and crimes of dishonesty. He was also recommitted to custody twice as a statutory release violator. The particulars of his record preceding the index offences are the following:
*CRIMINAL CONVICTIONS CONDITIONAL AND ABSOLUTE DISCHARGES *AND RELATED INFORMATION
1998-04-24 ASSAULT SEC 266 CC SUSP SENT & TORONTO ONT PROBATION 1 YR (METRO TORONTO PS 000894-98)
1999-04-01 (1) ATT MURDER SEC 239 CC (1) 10 YRS & 4 MOS NEWMARKET ONT
(2) FORCIBLE CONFINEMENT (2) 6 YRS CONC SEC 279(2) CC
(3) UTTERING THREATS (3-4) 6 MOS ON EACH SEC 264.1(1) (A) CC CHG CONC & CONC
(4) FAIL TO COMPLY WITH PROBATION ORDER SEC 733.1(1) CC
(5) FAIL TO COMPLY WITH (5) 1 YR CONSEC RECOGNIZANCE SEC 145(3) CC & (4 MOS & 11 DAYS (YORK REG PS 98-3232) (PRE-SENTENCE CUSTODY)
2000-08-15 FAIL TO COMPLY WITH 15 DAYS CONSEC TO TORONTO ONT PROBATION ORDER SEC 733.1 CC SENTENCE SERVING (TORONTO PS 894-98)
2006-10-27 STATUTORY RELEASE
2007-02-07 THEFT UNDER $5000 7 DAYS CONC WITH TORONTO ONT SEC 334(B) CC UNEXPIRED PORTION (TORONTO PS FIS DES OF SENTENCE 1998000894)
2007-06-21 STATUTORY RELEASE VIOLATOR RECOMMITTED
2009-05-15 STATUTORY RELEASE
2009-09-09 STATUTORY RELEASE VIOLATOR RECOMMITTED
DANGEROUS OFFENDER PSYCHIATRIC ASSESSMENT
30Dr. Scott Woodside is a very experienced forensic psychiatrist. He has prepared and submitted approximately 100 dangerous offender assessments. He was nominated to perform the psychiatric assessment of Mr. Valle-Quintero pursuant to s. 753.01 of the Criminal Code. On December 20 and 24 of 2013, Dr. Woodside met with Mr. Valle-Quintero for almost ten hours. In addition, Dr. Woodside reviewed extensive material regarding Mr. Valle-Quintero’s personal, criminal, correctional and psychiatric background.
31Dr. Woodside’s opinions and recommendations were set out on pages 43 through 57 inclusive of his report dated January 30, 2014.
32Dr. Woodside was of the view that Mr. Valle-Quintero did not appear to clearly suffer from any major mental illness, such as schizophrenia or bipolar disorder. His primary diagnosis was of a mixed Personality Disorder with primarily anti-social and narcissistic traits. The diagnostic criteria for anti-social Personality Disorder are found in the Diagnostic and Statistical Manual, 5th edition. The essential feature of anti-social Personality Disorder is a pervasive pattern of disregard for, and violation of the rights of others, occurring since the age of 15. Individuals with an anti-social Personality Disorder are described as frequently deceitful and manipulative in order to gain personal profit or pleasure, i.e. to obtain sex, money or power. Individuals with this Personality Disorder may blame the victims of their offences for their fate, may minimize the harmful consequences of their actions, or may simply indicate complete indifference. The diagnostic criteria for a narcissistic Personality Disorder has the essential features of a pervasive pattern of grandiosity, need for admiration, and a lack of empathy, beginning in early adulthood. With respect to Mr. Valle-Quintero, Dr. Woodside was of the view that his presentation is dominated by the presence of anti-social personality traits, coupled with the presence of narcissistic traits to a lesser degree. In terms of risk assessment, Dr. Woodside indicated the following at page 49 of his report:
“Overall, I view Mr. Valle-Quintero as being at high risk for violent re-offence involving intimate partners specifically from a purely clinical perspective, as well as from an actuarial perspective. The nature of his previous offending also speaks to some degree to the anticipated severity of future potential re-offences.”
Dr. Woodside was also of the view that Mr. Valle-Quintero may meet at least some of the criteria for dangerous offender status from a psychiatric perspective. At page 51 of his report, he indicated that there is a substantial risk for violent re-offence specifically involving intimate partners.
33At page 52 of his report, Dr. Woodside indicated that individuals with anti-social Personality Disorder are also typically seen as being less amenable to treatment, with there being little evidence that these individuals benefit from treatment in terms of preventing any future recidivism. Mr. Valle-Quintero does appear to suffer from significant anti-social personality traits in combination with narcissistic personality traits. In his overall assessment, Dr. Woodside was of the view that his prognosis for Mr. Valle-Quintero was average in comparison to other incarcerated offenders. In terms of current motivation for treatment and/or supervision, Dr. Woodside noted that during the current assessment, Mr. Valle-Quintero made it clear that he did not see himself as having any significant problems requiring treatment. Dr. Woodside viewed this overall as a neutral factor.
34In terms of previous response to treatment, Dr. Woodside noted at page 54 of his report that to the extent that Mr. Valle-Quintero has received treatment, it does not appear to have been effective, insofar as he committed his index offences in a relatively short time after release. Moreover, these offences again involved assaults on an intimate partner. Rather than see this as further evidence of his need to address his anger issues with women, Mr. Valle-Quintero has taken this as further evidence of (i) his status as victim vis-à-vis his partners, and (ii) corrupt or inadequate police investigations involving him. Overall, Dr. Woodside was of the view that this factor was negative in terms of Mr. Valle-Quintero’s manageability in the community, and in terms of controlling the risk posed by Mr. Valle-Quintero.
35In terms of response to previous supervision, Dr. Woodside at page 54 pointed out that Mr. Valle-Quintero has been convicted of a number of breaches of supervision, such that his history in this regard can only be described as extremely poor. It provides little comfort or assurance that he would respond to supervision positively in the future. He went on to indicate that previous psychological testing of Mr. Valle-Quintero suggests that he has a tendency to engage in “impression management”, presenting himself in an overly-positive light and denying any problematic attitudes or behaviours. This will make it more difficult to engage him in both supervision and treatment. Overall, the doctor viewed this factor as quite negative.
36Dr. Woodside summarized his conclusions as follows at page 55 and 56 of his report:
“In summary, I believe there is reason for pessimism, from a psychiatric perspective, regarding this individual’s future manageability within the community, even if strict conditions were put in place and Mr. Valle-Quintero were to agree to follow through with conditions and treatment recommendations. This is in part due to an ongoing lack of insight on his part regarding the nature of his problems (i.e. his controlling, jealous and aggressive nature with respect to women) and his seeing himself as a victim. Individuals who see themselves as victims rarely take responsibility for their actions in any meaningful fashion.”
37Dr. Woodside concluded his report by indicating that Mr. Valle-Quintero represents a special group of high-risk/high-needs offenders. In the context of this report he was clearly referring to intimate partners as being most at risk.
Self-Report Regarding Relationship to Telma Quezada
38On page 14 of his report, Dr. Woodside refers to a Psychological Risk Assessment Update completed at the Bath Institution dated December 7, 2007. Mr. Valle-Quintero was referred for a risk-assessment by his parole officer in consideration of granting day parole. During the interview, it was noted that Mr. Valle-Quintero tended to externalize responsibility and to minimize both his index offences and the prior assault committed against the same victim. In terms of the offences against Ms. Quezada, Mr. Valle-Quintero said he went to confront the victim at her apartment because he was trying to end the relationship and she had kept calling him. He later indicated that a friend told him the victim was working at a massage parlour. He did not agree with that. He added that he had also been told that she had been performing fellatio on other men. He maintained he had gagged her, tied her up and put her in the trunk of her car because he wanted to take her and show her the person who had alleged these things about her. He said he had no intention of murdering her, but had put her in the trunk of the car, tied and gagged her because one time she had tried to jump out of the car and he was afraid she would do that again. It was also noted that he maintained that he had let her out of the trunk at a mall and someone had become concerned because they saw some tape on her face. He denied she attracted the attention of bystanders by waving her hand out of the trunk as reported in the official version. In terms of the previous assault on the same victim, he acknowledged having assaulted her but stated this involved his having only slapped her after she had slapped him. The report from the Bath Institute further noted that “Mr. Valle-Quintero was more concerned with explaining how he had been wrongly convicted than he was of expressing remorse for his actions”.
39Mr. Valle-Quintero advised Dr. Woodside that he met Ms. Quezada within one month of arriving in Canada. They became involved sexually within one to four weeks after meeting. The relationship lasted for one year prior to his arrest. He went on to indicate that he had a good relationship with Ms. Quezada “until I found out the real meaning of her job…a massage parlour.” Mr. Valle-Quintero reported finding out that she was working at the massage parlour a few days before the offences leading to his convictions in 1999.
40At pages 21 through 23 of his report, Dr. Woodside set out Mr. Valle-Quintero’s rendition of what occurred between himself and Ms. Quezada that lead to his criminal charges and prison term in excess of 11 years. I will refer here to the specific excerpts from the report:
Mr. Valle-Quintero reported being very upset when he found out Ms. Quezada was working at the massage parlour and stated she knew he would be upset. He stated he was upset about the idea that she was having sex with men at the massage parlour. He stated a friend told him that she was working there. He confronted her regarding this and noted she denied this a few days before his arrest [although other collateral information suggested this had been an issue for at least seven months prior to the index offences]. He wanted to take her to the massage parlour but she did not want to go. He was mad that she had been lying to him. He noted he felt “betrayed” by her at the time and that she “did not give a damn about the relationship”. He stated she eventually admitted being at the massage parlour but stated she only did the laundry and the cleaning there.
He saw the same friend a few days later and he told him that other friends had also seen her at the massage parlour and had had sex with Ms. Quezada. He stated his friends told him to bring her to them to see if they identified her.
He went to her house that day [of his arrest] to ask her to go to see his friends but she refused. She got in the car but then tried to leave the car. He told her that if she did not want to go, he would have to take her. He then tied her hands and feet and put duct tape over her mouth because she was yelling [in the underground garage around 11am]. He also reported putting a canvas bag over her head and shoulders and then bound it with duct tape “because she was kicking and fighting.”
He denied ever putting a plastic bag over her head and stated the victim also denied he had done this. He stated, “I challenge anybody to get the transcript and the recording of what was said in the court.” He went on to note, “I have been blamed for a crime that never happened…it was injustice.”
When it was noted his appeal of the convictions had been dismissed, he stated his lawyers did not do a proper presentation of his case and did not put that information in front of the court.
When asked what he should have been convicted of at the time, he stated he should have been convicted for putting her in the trunk of the car and fail to comply because he was on probation. He stated he did not put duct tape over her nose [in direct contrast to the judge’s findings] but only over her mouth and thus did not intend to harm or kill (her).
When questioned about the effect of his actions on the victim, he stated, “well, it must be a really bad impact…this is not a nice situation.” He also noted he was extremely angry at the time and feeling very betrayed. He stated he was feeling “humiliated”.
When asked if he thought the victim was worried he was trying to kill her, he acknowledged she may have thought this but not so later. He stated when witnesses first saw them, they were sitting in the car next to each other.
He also denied bringing anything to the scene, stating the duct tape and the material used to tie her up was already present in the car because her son had put this material in the vehicle. He found them in the glove compartment when he was looking for something to tie her hands.
When questioned regarding his statement at trial about his having brought that material to the car to repair it, he stated he did not speak English and the translator must have mistranslated it.
He noted he never saw Ms. Quezada after his arrest for Attempt Murder. He once again indicated he never attempted to kill her. He stated, “what I did wrong was put her in the trunk and try to force her to go somewhere…if I have a doubt about what she do, the best thing would have been to abandon the relationship.” When asked why he had not done so, he noted he had no evidence and she continued to lie about this. He stated she later acknowledged working there while they were both sitting in the car right before his arrest.
When asked why this happened, he stated, “I was in love with her, I couldn’t believe she was working in the massage parlour, I couldn’t accept it…” He noted she admitted at trial she worked at the massage parlour.
He continued to argue regarding use of the plastic bag at the time, noting once again that he denied doing so and stating that the victim said he never put the bag over her head [although according to the transcript of proceedings, the victim indicated she did not recall his putting the plastic bag over her head].
41On pages 35 and 36 of his report, Dr. Woodside refers to a Correctional Plan Progress Report dated January 8, 2009, that included Mr. Valle-Quintero’s version of events related to himself and Ms. Quezada. That excerpt is as follows:
According to a Correctional Plan Progress Report dated January 8, 2009 (Tab 16, 752.1 Application Assessment Record), it was noted Mr. Valle-Quintero’s version of his offence did not correlate with the official version. It was noted at his most recent Parole hearing, he indicated he was going back to his girlfriend’s place to pick up some of his effects when he just happened to run across her path in the parking lot. He indicated that a confrontation ensued although he admitted he taped the victim’s hands and placed a canvas bag over her head. It was noted, “The Board found you greatly minimize the extent of violence used against the victim. Although you stated that it was wrong for you to have hit the victim, your overall stance at the hearing was that you had been victimized by the criminal justice system.” The Board indicated he demonstrated little or no remorse and no clear insight into the personal factors which caused him to behave in a dominant and controlling fashion towards the victim.
42At page 37 of his report, Dr. Woodside refers to a pre-sentence report dated March 3, 1999 authored by Katie Almond. Mr. Valle-Quintero admitted to having married Lilly Aiello in order to facilitate the process of immigrating to Canada. Shortly after coming to Canada, he met Ms. Quezada. According to Ms. Almond, Mr. Valle-Quintero readily admitted his actions and was described as having expressed:
“…absolutely no remorse for his behaviour, and appeared to be morally outraged that he been arrested for offences which were to him, utterly explicable in light of his objections to Ms. Quezada’s chosen employment (as a masseuse). He provided an exhaustive and somewhat chilling account of his theories regarding relationships with women; that he wants them to behave only in a manner sanctioned by him, and that any violation of his rules or demands would result in retribution on his part. The subject regarded his treatment of Ms. Quezada as rational and appropriate. He indicated that while he could see that she had been frightened by his behaviour, he emphasized that she knew he was only trying to make a necessary point and teach her a lesson.”
43Ms. Almond described Mr. Valle-Quintero as “a manipulative, violent and duplicitous individual who does not possess the capacity or the desire to understand either the gravity or potential consequences of his actions”.
44Further on page 38 of his report, Dr. Woodside refers to an Intake Assessment from the Millhaven Assessment Unit wherein Mr. Valle-Quintero was asked why he bound and gagged the victim. He stated that “while he was attempting to end the relationship, he desired to have sex with the victim one last time and that since she was unwilling to do so, this made it necessary to bind and gag her”. He also noted he could not permit the victim to work as a masseuse as it was against his morals. He added that only “bitches and whores” worked in massage parlours and that the relationship is over because “once you’re a bitch, you’re a bitch”.
Self-Report Relating to Offences Against Ms. Lin (INDEX OFFENCES)
45At page 10 of his report, Dr. Woodside noted that he asked Mr. Valle-Quintero if he had received counselling regarding attitude towards women and violence. Mr. Valle-Quintero said he had and stated he was taught that “he shouldn’t hit anyone” and that he needed to learn other ways of coping. He went on to note “Ms. Lin, do you know how many times she assaulted me before? ...Three times.” When he was asked by the doctor who had suffered the most over time, Mr. Valle-Quintero answered that he had suffered the most. When asked to clarify that, he indicated “because I am suffering the consequences”. When specifically asked regarding the victim suffering, Mr. Valle-Quintero indicated “with Ms. Lin, I don’t think she is suffering, she was the one who assaulted me. What she did to me was really bad.” Mr. Valle-Quintero then went on to indicate that he thought that she must be scared.
46At page 11 of his report, Dr. Woodside noted that Mr. Valle-Quintero referred to Ms. Lin and said that “she beat me up in the car and … her punching me in the genitals when I was asleep…but I was stupid”.
47At pages 27 through 31 inclusive of his report, Dr. Woodside noted the self-report by Mr. Valle-Quintero in regard to the charges related to Ms. Lin. That information is as follows:
According to his self-report, he was released on statutory release in April 2010 to a shelter first; he found a rooming house within one to two weeks. He noted he received Ontario Works immediately and received start-up money to cover first and last months' rent. He continued to receive Ontario Works until he began intermittent construction work. He reported his income to Ontario Works but needed to continue it due to the unreliable nature of his work. When he met Ms. Lin, he was working full-time in a warehouse.
He had not been involved in any relationships up until that time. He met Ms. Lin at her bar within 8 months of his release in October or November 2010. They began dating within a few days of meeting. He was attracted to her, noting she was very talkative.
She began staying over at his room when working late. Everything was going well until “she attacked me and hit me” in approximately November 2010 (within a month of starting the relationship). He noted she drank a lot but denied he was having more than 1-2 drinks. He noted they had visited a friend in Scarborough and then went to drive home. He told her he would drive as she had had a few drinks, although he did not like this. He stated she began complaining about his driving and blamed him for a crack in the windshield, which he denied. He told her to "just shut up" and began to fiddle with the radio. It was staticky and he began to hit the radio. She told him to stop; he hit the radio one more time and the screen of the radio cracked. He stated, "She went out of her mind, she began to punch me while I was driving the car." He stated he tried to hold onto the wheel and then hit the brakes to stop the car. He stated he was bleeding from where she hit his head. He eventually pulled off into a plaza where he told her that she was "crazy" for what she had done to his face. She then apologized and she drove him back to his house, putting ice on it and giving him aspirin. She then left and went to work.
She returned later that night and continued to treat him with ice and apologize. After this, the relationship began to cool down. He noted he was unhappy with her. In retrospect, he reported feeling he should have just ended the relationship. However, she continued to come to his place.
He denied having choked the victim at that time or having hit her head off the car seat.
The next incident took place a few weeks later, when she hit him in the genitals in the middle of the night and demanded to know who "this bitch is that is texting you?" He noted it was some girl he had met. He noted Ms. Lin was very jealous. He stated, "I was just trying to push her away ... I told her to shut up, that people were trying to sleep." He stated she continued to insult him but eventually calmed down. He told her it was just a girl he had met and that nothing had happened. He eventually told her to leave but she would not go.
He acknowledged having asked her for $1000.00 for his sick sister but she did not give him the money. He also said that he suggested they invest in a house in Cuba, with her putting in most of the money. He stated she was interested in this.
He denied choking her at that time, threatening her by saying he would dig a hole in the wall and nobody would find her, saying if he couldn't have her, nobody would, referencing regret he had not killed a previous victim or referencing having killed a woman in Cuba.
Regarding her ending the relationship and coming to his room to pick up her belongings on December 28, 2010, he denied forcing her to sit on a chair but did remember her phone ringing and her telling him that it was one of her ex boyfriends. He reported answering the phone and saying, "if she has been with you for a while, she has been with me for a while, she is a bitch and she is playing you and me." He denied asking to meet him but did say that she was there at his house and he could come see her for himself.
He stated that she then tried to hit him and he tried to push her away, hitting her in the lips. He demonstrated that he "backhanded" her, hitting her in the lips. He stated she fell back but did not lose consciousness. He acknowledged, "She cut her lip with her tooth." He stated she then went to the washroom and cleaned up. He denied any roommate called out "what's wrong?" and noted William was not called to testify.
Regarding her letter to Nancy describing his abuse, he stated he was not aware of this initially but she later told him about it. He was upset and stated they went back to Nancy's home and asked if Ms. Lin had given her a letter; he stated Nancy just told him she had given her a Christmas letter. He believed Nancy was trying to "make peace"; he acknowledged having told Nancy he had hit Ms. Lin but also noted she had assaulted him, showing Nancy his black eye.
Regarding the last incident on January 21, 2013, he denied hitting her at all, stated he did not put a pillow over her face (noting, "I don't even have a pillow!") and denied saying that he would end the relationship for $5000.00 or $10,000.00.
According to Mr. Valle Quintero, the bar Ms. Lin worked at was in a plaza. He noted there were other bars around there, including directly across the street from her bar. He stated he went to that bar, playing pool with his friends. He recalled that both bars closed at almost the same time. He observed Ms. Lin hugging and kissing a man outside of her bar, while he was standing there with two friends (neither of whom testified, nor did Mr. Valle-Quintero). He spent a bit more time with his friends, noting that the girlfriend of one of them was laughing at him for Ms. Lin being with another man. He denied feeling angry but noted, "I didn't like it ... she's embarrassing me in front of my friends." He then went with his friends to one of their homes and had a few more drinks. [He reported consuming a total of 5-6 drinks that night.]
He then went back to his home after being driven there by his friend. He found Ms. Lin in his room and asked her why she was there. He began to ask her questions about why she had come there and about what she had been doing at the bar that night, including who had been at the bar. He noted he asked her if she was “sure” about whom she said was there. He then confronted her about seeing her give a man a hug and a kiss outside the bar. He recalled she told him that the man had kissed her rather than the other way around. He noted she began to get upset and said this man had told her he wanted to have sex with her. Mr. Valle-Quintero asked her if she told him she had a boyfriend and why she gave him a hug and a kiss, given she knew “his intentions [that he wanted to have sex with her].” He stated she told him that he was a customer and he “laughed in her face.” [Mr. Valle-Quintero was describing these exchanges with much sarcasm, clearly indicating he did not believe what she was telling him.] He stated he then told her to “get out, for me you are just a bitch.” He stated she replied, “No, you are accusing me of something I have not done” to which he replied, “I am not accusing you, I saw you, for me you are just a bitch” and told her to leave again. He noted she owed him money and he asked for it, noting it was $5000.00. He then stated she owed him that money because he had been working for her in the bar, getting supplies and fixing the furniture there. He estimated the price for all this work was about $5000.00. He noted he had also been cleaning the bar before it opened and clearing ice from the sidewalk. [He once again noted he did not testify and did not provide a statement to the police regarding this.]
He said she told him she would give him the money later and continued to insist nothing had happened with the bar customer. He told her they should go their own way. He then went to his room and went to sleep. He noted she followed him into the bedroom and stayed overnight. He just went to sleep.
The next morning, he woke up and saw her in the bed. He got her keys and removed his door key from them. He once again told her to bring him his money and that they were done. He noted he had to go to court that day to deal with a request by police for a s.810 order to prevent his having any contact with Ms. Quezada. He attended court to try and get a transcript regarding the incident and then put the matter over. On his way home, he passed by the bar and saw her in her car. She told him that she was going to buy beer. He indicated her response in stopping the car was inconsistent with the idea that he had beaten her up the night before, noting "she didn't even have a mosquito bite on her face! ... a person that I had beaten up!" [said sarcastically]. He offered to go with her and go in the car. They went and bought a few cases of beer, loaded the car and drove back to the bar, where he unloaded all the beer.
He noted that after he was done with unloading, she said she had to go to the bank. He accompanied her to the bank but she did not pay him anything.
When asked why he was spending time with her again, given his belief that she was a bitch and been unfaithful to him, he stated he was only spending time with her to get his money.
They returned to the bar and found the police there.
When asked why the victim would lie to the police and make up this story, including why would she give the letter to Nancy, he stated, "l don't know ... I hit her in the lips ..." He questioned why she did not go to the police earlier if he had really done these things.
I then asked if there were any other areas that he felt were important that had not been covered. He noted he was surprised that I had not been provided with all the transcripts from the trial. I noted that I based my conclusions and assessment primarily based on findings of fact made by the judges rather than on the transcripts.
He also felt it was important for this writer to see a picture of his face at the time she assaulted him. He noted he had taken a picture of his face on his phone at the time of the assault.
I offered once again to review any materials he or his lawyer wished to send me.
He noted once again that he was simply trying to defend himself because she had "brutally attacked me" twice before and he had "accidentally" hit her on the lips trying to brush her away.
I asked him what, if any, treatment he thought he needed or would be willing to take as part of any sentence he received, assuming that his appeal was unsuccessful. He indicated he would have no choice but to accept any and all treatment offered to him.
He again noted that the victim was lying about his repeated assaults on her.
When asked about contact with Ms. Lin after his arrest, he acknowledged having been in contact with her but denied asking her to change her statement to the police or withdraw the charges.
He once again noted that Ms. Lin had barely been injured and that he had seen men in jail getting six month sentences for much more severe offences.
IMPACTS ON THE VICTIMS
48In 1999, Justice Minard was satisfied beyond a reasonable doubt that Mr. Valle-Quintero intended to murder Ms. Quezada. The fear instilled in her as she lay bound and gagged in the trunk of his car is self-evident. Even though Ms. Quezada testified on the sentence hearing that she had not suffered psychological problems from the attacks, the Court of Appeal at paragraph 66 referred to her being traumatized and manipulated. Ms. Lin left a surreptitious note inside a Christmas card and a self-video stating that she felt her life was in danger. In a victim impact statement, Ms. Lin indicated she is still afraid of Mr. Valle-Quintero and fears he will send someone to kill her. She did not sleep or eat well as a result of her anxiety. Her physical injuries included the following:
(i) Her face was puffy for a month;
(ii) Black eye for about a month;
(iii) Broken lip for about a month;
(iv) Headaches for 6 months.
49I am satisfied that the controlling, assaultive and threatening behaviour by Mr. Valle-Quintero against his intimate partners inflicted severe psychological damage on both victims.
PROTRACTED DURATION OF THE HEARING
50The inherent nature of this type of hearing routinely involves a considerable passage of time and several court appearances. This includes time for the mandatory psychiatric assessment, the calling of further evidence and filings as well as submissions. The time required in this specific case was increased by Mr. Valle-Quintero’s requests to discharge his counsel and then retain new counsel. After several more appearances, Mr. Valle-Quintero ultimately decided that he wished to represent himself. The court appointed Mr. Peter Boushy as amicus curiae. Mr. Valle-Quintero is obviously a very intelligent and articulate person. Although his first language is Spanish he clearly understood the process and participated in a meaningful way. I had no difficulty in understanding his questions and submissions on his own behalf. Mr. Boushy was of great assistance to the court. Mr. Valle-Quintero indicated on several occasions in open court his confidence in Mr. Boushy. Mr. Valle-Quintero clearly understood the role of amicus. After conferring with Mr. Boushy, Mr. Valle-Quintero chose not to testify on this application.
APPLICABLE CRIMINAL CODE PROVISIONS
51The following provisions apply in this case:
s. 753(1) Application for finding that an offender is a dangerous offender - 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…
s. 753(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.
s. 753(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.
s.753(5) If offender not found to be dangerous offender - If the court does not find an offender to be a dangerous offender,
(a) the court may treat the application as an application to find the offender to be a long-term offender, section 753.1 applies to the application and the court may either find that the offender is a long-term offender or hold another hearing for that purpose; or
(b) the court may impose sentence for the offence for which the offender has been convicted.
s. 753.1(1) Application for finding that an offender is a long-term offender - 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.
s. 753.1(2) Substantial Risk – The court shall be satisfied that there is a substantial risk that the offender will reoffend if
(b) The offender
(i) has shown a pattern of repetitive behavior, 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…
s. 753.1(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.
s. 757 Evidence of character - Without prejudice to the right of the offender to tender evidence as to their character and repute, if the court thinks fit, evidence of character and repute may be admitted
(a) on the question of whether the offender is or is not a dangerous offender or a long-term offender; and
(b) in connection with a sentence to be imposed or an order to be made under this Part.
52The predicate offences must include “serious personal injury offences” as defined in s. 752.
2008 AMENDMENTS TO THE DANGEROUS OFFFENDER/lONG TERM OFFENDER PROVISIONS
53In R. v. Szostak, 2014 ONCA 15, Justice Rosenberg made the following points in regard to the 2008 amendments to the Criminal Code related to dangerous offender proceedings:
(1) The judge no longer has discretion not to find a person a dangerous offender who fits the definition. The discretion has been broadened in that the judge has wider sentencing options for a person who does come within the dangerous offender definition.
(2) The possibility of successful treatment is of limited application in determining whether the person is a dangerous offender. The possibility of successful treatment is significant in choosing the appropriate disposition.
(3) The crown must prove:
(i) the predicate offence is a serious personal injury offence as listed in s. 752;
(ii) the offender constitutes a threat to the life, safety or physical or mental wellbeing of other persons because of
(1) a pattern of repetitive behaviour showing:
(2) a failure to restrain the behaviour; and
(3) likelihood of causing death or injury or inflicting severe psychological damage; or a pattern of persistent aggressive behaviour showing a substantial degree of indifference.
(4) The availability of the new long-term offender penalty removed intractability as a necessary element of the dangerous offender definition.
(5) The legislation contemplates that a person could be declared a dangerous offender because they meet the definition but nevertheless be given a disposition including a long-term supervision order or a conventional sentence. However, these two options are only available if an indeterminate sentence is not required to protect the public from the commission of murder or a serious personal injury offence.
(6) 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”.
(7) Where there are only two offences involved, there is a need for remarkable similarity. Fewer exact similarities are needed where more offences are involved.
(8) Similarity can be found not only in the types of offences but also in the degree of violence or aggression threatened or inflicted on the victims.
54The onus is on the crown to prove beyond a reasonable doubt that Mr. Valle-Quintero is a dangerous offender. See R. v. Currie, [1997] 2 S.C.R. 260 at para 42.
55A likelihood of future harm is more than a mere possibility. It does not mean a certainty of harm. See R. v. Robinson, [2009] O.J. No. 5373, (Ont. S.C.) at para. 108.
56Based on the findings at trial for the index offences, an attempt to obstruct justice constitutes a serious personal injury offence. See R. v. S.M., [2005] O.J. No. 1041 (C.A.)
57The psychiatric assessment presented on the application is not dispositive. The sentencing judge is obliged to reach his or her conclusion related to future risk posed by the offender based on the totality of the evidence presented. See R. v. Allen, 2007 ONCA 421, [2007] O.J. No. 2226 (C.A.), R. v. R.M., 2007 ONCA 872, [2007] O.J. No. 4856 (C.A.).
WHAT CONSITITUES A PATTERN OF REPETITIVE BEHAVIOUR?
58In R. v. Wood, 2015 ONSC 3154, Justice F. Bruce Fitzpatrick adopted earlier decisions dealing with this issue at paragraphs 73 and 74:
[73] With respect to the finding of a pattern, a useful description of what constitutes a pattern was provided by Karakatsanis J. (as she then was) in R. v. Tremblay, 2010 ONSC 486, at paras. 96 and 97, where she stated:
To constitute a pattern, there must be a common element in the behaviour, something that connects prior incidents together in a manner that justifies considering them as a whole. A pattern of behaviour is something more than a mere history of criminal activity. Similarity can supply the requisite degree of connection. However, “similarity…can be found not only in the types of offences but also in the degree of violence or aggression threatened or inflicted on the victims…[and] similarity in terms of kinds of offences is not crucial when the incidents of serious violence and aggression are more numerous”: R. v. Neve, above, at para. 113. Generally, in order to meet the requirements of a pattern, the fewer the incidents, the more similar they must be: R. v. Langevin (1984), 45 O.R. (2d) 705 at para. 29 (C.A.)
There is no requirement that the past conduct that makes up a pattern involve objectively serious offences, offences that are more or less serious, or even that they may be serious personal injury offences: R. v. Currie, above, at paras. 24-26; R. v. Newman, [1994] N.J. No. 54 (C.A.) at para. 79. Even two incidents with similarities are sufficient to form a pattern: R. v. Langevin, at para. 29.
[74] I have found the decision of the British Columbia Court of Appeal in R. v. Dow, 1999 BCCA 177, useful where in discussing the provisions of s. 753(1)(a)(i). The court said at paras. 22 through 25:
So there must be a pattern revealed by repetitive behaviour; the pattern must contain an element that the dangerous behaviour was not restrained in the past; and there must be a likelihood that the same behaviour in the future will not be restrained and will cause death or injury.
Each of those three elements must be present in the pattern and those three elements serve to define the relevant characteristics of the pattern for the purposes of subpara. 753(a)(i). But, necessarily, the description of the three elements in subpara. (i) is couched in general terms. So, in any particular case, for the purposes of describing the pattern, each of the three elements may be particularized in a way that gives individuality to the pattern by indicating specific similarities between one incident and another. But it is important that the process of particularization not result in a level of detail which obscures the common characteristics which embody and reveal the three essential elements of the pattern.
In short, the significance and the relevance of common elements of the pattern must be determined by whether they tend to show first, repetitive behaviour, second, that there has been a failure in each case to restrain the behaviour, and third, that there has been injury to other persons arising from that failure. If any of those three elements is missing, then there may be a pattern but it will not be a relevant pattern. But if all three are present then the essential elements of a relevant pattern are revealed.
I add that it is the very essence of a pattern that there be a number of significant relevant similarities between each example of the pattern that is being considered, but that, at the same time, there may be differences between each example, some of them quite distinctive, so long as the differences leave the key significant relevant elements of the pattern in place. That is, after all, what is meant by a pattern. We talk of a pattern in dress-making. That means that each example is assembled from pieces that are cut in the same proportions and that fact, in itself, is what constitutes the common element of the pattern. But the size of the pieces and of the assembled item of clothing, the fabric of which they are made, and the colour of the item of clothing may all be different without affecting the identity of the pattern. The same is true of patterns of decorative tiles, and of many other items. The aspects of the object which are relevant to a description of the pattern must all be similar in their essential characteristics. But other aspects of the items, which are not essential to a description of the relevant pattern itself, may be markedly different from one example to another.
59For a pattern to exist there must be a number of significant relevant similarities between each example. There may be some differences, but if the key significant elements remain in place there is a pattern. See R. v. Newton, [2006] O.J. No. 1108 (S.C.J.) at para. 9.
60The past behaviours may be more or less serious than the predicate offences and still compose part of a pattern. See R. v. Neve, 1999 ABCA 206 at para. 110.
CRITICAL EVENTS FROM AND INCLUDING APRIL 2010 THROUGH FEBRUARY 27, 2011
61In April of 2010, Michael Young took over as Mr. Valle-Quintero’s parole officer. Based on the offender’s history, a key term of his parole was to report any new romantic relationships. That reporting term would enable the parole office to alert any new partner of potential safety concerns. Mr. Valle-Quintero’s warrant expiry date was August 13, 2010.
62Mr. Young met with Mr. Valle-Quintero several times from and including April through August of 2010. He noted that Mr. Valle-Quintero was often quite late for meetings and did not seem to take parole very seriously. Mr. Young’s notes for various meetings include reference to risk being “manageable”. However, he also noted a sense of hostility from Mr. Valle-Quintero. Mr. Young felt Mr. Valle-Quintero wilfully tried to mislead him related to certain immigration issues.
63Mr. Young received a report on July 29, 2010, that Mr. Valle-Quintero had been observed getting out of a car driven by a woman. Mr. Valle-Quintero denied that he was involved in a relationship with her but would not provide further information. Mr. Valle-Quintero was reminded of the term about reporting any new relationships. The identity of that woman was never provided. Mr. Valle-Quintero said she was a relative of someone he knew.
64Mr. Young characterized Mr. Valle-Quintero as being “on the extreme side of non-compliance”.
65Heather Revill was a parole officer who also supervised Mr. Valle-Quintero in July and August of 2010. On a random spot-check on July 28, 2010, she observed Mr. Valle-Quintero to get out of a car that contained a driver and a woman. Mr. Valle-Quintero approached Ms. Revill and provided a first name for the woman. The next day, Mr. Valle-Quintero advised her that he was not involved in a relationship with the woman. He was told that the officers needed to speak to her to make sure there was no relationship. Mr. Valle-Quintero did not provide any further information that would allow for this follow-up.
66On August 12, 2010, Mr. Valle-Quintero was served with an application for a hearing pursuant to s. 810.2 of the Criminal Code. The grounds were that he continued to present as a high risk to re-offend violently against future female partners. When Mr. Valle-Quintero was served he responded in a hostile and profane manner.
67The central condition sought on the s. 810.2 application was that Mr. Valle-Quintero advise police of any new intimate relationships. He was released on a recognizance pending the s. 810.2 application with a term that he report any new romantic relationships to police. This was the same recurring condition in his parole prior to warrant expiry.
68Before the actual s. 810.2 hearing was even scheduled, the following events unfolded:
In early November of 2010, Mr. Valle-Quintero met Jian Lin. Shortly thereafter they became romantically involved and intimate.
From and including December 12, 2010, through February 27, 2011, Mr. Valle-Quintero committed crimes of violence and threats against Ms. Lin, damage to her property, violations of court orders related to non-contact terms and an attempt to obstruct justice.
ANALYSIS
69What would have happened if Mr. Valle-Quintero had complied with the requirement that he report his new relationship with Ms. Lin in November of 2010? The police would have contacted and informed Ms. Lin of Mr. Valle-Quintero’s criminal history. Mr. Valle-Quintero would have been subject to increased police vigilance. The offences against Ms. Lin may well not have occurred and he would not now be facing a dangerous offender designation.
70One of the parole officers on this case testified that terms requiring notification of any romantic or intimate relationships depends primarily on self-reporting by the parolee. It is simply not possible for a busy parole officer to devote all of his or her time to enforce such a term, even for an offender with dangerous risk potential. Mr. Valle-Quintero was bound by this term of parole and then by a term of recognizance when he became involved with Ms. Lin. Based on the evidence on this application, he resented and did not abide by the term.
71Mr. Valle-Quintero did not testify on this application. He has been convicted of wilfully refusing to comply with the most important term that he report any new relationships. He knew that if he did so Ms. Lin would be advised of what had happened to Ms. Quezada. Critical information relevant to her life and safety was withheld from Ms. Lin. She was put at grave risk and suffered serious consequences.
72The opinion of Dr. Woodside that Mr. Valle-Quintero presents a high risk for violent re-offence involving intimate partners is amply borne out by the evidence on this application. His further opinion that the nature of his previous offences speaks to some degree to the anticipated severity of future potential offences is also valid. The rapidity and circumstances of his attacks on Ms. Lin shed ominous light on the prospect of managing the grave risk he presents other than by an indeterminate sentence.
73There are significant common elements to the violent behaviour by Mr. Valle-Quintero towards Ms. Quezada and Ms. Lin. This is important in assessing whether the crown has proven a pattern of repetitive behaviour. I have considered the following common elements in Mr. Valle-Quintero’s relationships with these women:
Both relate to intimate partners.
Both involve violent and threatening behaviour by Mr. Valle-Quintero.
Both involve extreme anger, jealousy and controlling behaviour by Mr. Valle-Quintero.
Both involve threats to cause bodily harm.
Both involve actual bodily harm to the victims.
Both incidents instilled extreme fear in the victims.
Both include attempts by Mr. Valle-Quintero to choke or suffocate the victims.
He fastened a plastic bag around Ms. Quezada’s head with duct tape. He placed a pillow over the face of Ms. Lin and applied pressure.
Both incidents occurred when Mr. Valle-Quintero was bound by court order to not have contact with the victims.
Both incidents included Mr. Valle-Quintero trying to persuade the victims to not provide evidence against him.
74I am satisfied that these common elements prove a pattern of repetitive behaviour that shows a failure to restrain his behaviour and a likelihood of causing death or injury to his intimate partners. A double digit penitentiary term for his attempted murder conviction did not deter or sufficiently cause him to abstain from such criminal conduct in his relationship with Ms. Lin.
75In 1999, Justice Minard was satisfied beyond a reasonable doubt that Mr. Valle-Quintero intended to murder Ms. Quezada. The fear instilled in her as she lay bound and gagged in the trunk of his car is self-evident. Ms. Lin left a surreptitious note inside a Christmas card and a self-video stating that she felt her life was in danger. I am satisfied that the controlling, violent and threatening behaviour by Mr. Valle-Quintero to his intimate partners inflicted severe psychological damage on both victims. Based on the pattern of his behaviour, including breaches of court orders regarding contact with his victims, there is no reason to believe he would restrain his behaviour in the future.
76Since his arrival in Canada in 1997, Mr. Valle-Quintero has been involved in intimate relationships with three women.
77He has been convicted of a series of criminal acts against the last two. Mr. Valle-Quintero spent a significant amount of the time between these relationships in the penitentiary and on parole. There was a s.810.2 peace bond application pending when he was arrested on the latest set of charges. Mr. Valle-Quintero was manifestly undeterred by the long jail term imposed in 1999.
78The Court of Appeal referred to the attacks and threats against Ms. Quezada as “horrific”. The trial judge on those charges noted that based on the materials presented, Mr. Valle-Quintero was at “great risk to offend”. That judicial alarm bell resonates as this court considers the serious assaults and threats against Ms. Lin some eleven years and eight months after his sentence in 1999.
79In the self-reports by Mr. Valle-Quintero to Dr. Woodside related to the offences against both Ms. Quezada and Ms. Lin, he continues to rationalize his own conduct and diminish the impact on both victims. This reflects a substantial degree of indifference by him respecting the reasonably foreseeable consequences to intimate partners of his behaviour.
WAS THE PATTERN OF ABUSE IN INTIMATE RELATIONSHIPS BROKEN IN THE MARRIAGE TO LILLY AIELLO?
80Since Mr. Valle-Quintero came to Canada in 1997, he had been involved in three intimate relationships with women. He has been convicted of serious crimes of violence and threats against two of them (Ms. Quezada and Ms. Lin).
81His marriage to Ms. Aiello ended in divorce but did not include allegations of physical abuse against her. Dr. Woodside was asked in cross-examination whether this shows Mr. Valle-Quintero does not display a pattern of assaultive behaviour against all of his domestic partners. Dr. Woodside responded that Ms. Aiello was “lucky” based on the complete pattern of behaviour.
82In the CSC records there is an admission by Mr. Valle-Quintero that he married Ms. Aiello to facilitate obtaining status in Canada. From early on in their marital relationship, Ms. Aiello felt that she was being used by Mr. Valle-Quintero for money and other purposes. I am satisfied that Mr. Valle-Quintero simply did not have the jealous, emotional, controlling and ultimately violent attitude towards Ms. Aiello as he did to Ms. Quezada and then Ms. Lin.
83Mr. Valle-Quintero became involved with Ms. Quezada one month after he arrived from Cuba. Mr. Valle-Quintero used Ms. Aiello to help him get out of Cuba and then effectively support him financially in Canada. The significant difference in his attitude towards Ms. Aiello as opposed to the other two women does not detract from the pattern of his conduct towards Ms. Quezada and Ms. Lin.
PROTECTION OF THE PUBLIC
84Is there a reasonable expectation that a lesser measure than an indeterminate term will adequately protect the public against the commission by Mr. Valle-Quintero of murder or a serious personal injury offence? The public at risk in this matter is the discrete category of future intimate partners of Mr. Valle-Quintero.
85Based on the evidence adduced in the course of this application, I have no confidence, let alone a reasonable expectation, that a measure less than indeterminate sentence will adequately protect any future intimate partners of Mr. Valle-Quintero from the harm referred to in s. 753(4.1) of the Criminal Code. The events of April 2010 through January 2011 reflect his refusal to abide by court orders related to intimate relationships. More ominously, they reflect his continued inability to restrain his aggressive, controlling and violent behaviour towards his female partners.
CONCLUSIONS
86I am satisfied that the following have been proven beyond a reasonable doubt:
There is a pattern of repetitive behaviour by Mr. Valle-Quintero, including the index offences, showing a failure to restrain his behaviour and a likelihood of causing death or injury to future intimate partners, or inflicting serious psychological damage on future intimate partners, through failure in the future to restrain his behaviour.
There is a pattern of persistent aggressive behaviour by Mr. Valle-Quintero showing a substantial degree of indifference by him respecting the reasonably foreseeable consequences to intimate partners of his behaviour.
I am not satisfied by the evidence adduced on this application that there is a reasonable expectation that a measure less than an indeterminate sentence will adequately protect future intimate partners against murder or a serious personal injury offence.
RESULT
87Pursuant to s. 760 of the Criminal Code, I order that a copy of all reports filed on this application and the evidence of Dr. Scott Woodside be forwarded to Correctional Service of Canada. I further order that a transcript of the trial that culminated in judgment on August 30, 2012, and these Reasons also be forwarded to Correctional Service of Canada.
88I designate Mr. Valle-Quintero a dangerous offender and sentence him to an indeterminate term.
89I am grateful for the helpful materials and submissions supplied by counsel. In particular, Mr. Boushy was of great assistance to the court and to Mr. Valle-Quintero in his role as amicus.
B. P. O’Marra, J.
Released: October 8, 2015
