CITATION: R. v. Blake, 2016 ONSC 2204

COURT FILE NO.: 10-RM1897

DATE: 2016/03/31

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

RICHARD BLAKE

Respondent

Meaghan Cunningham and Carl Lem for the Crown

Glenn Orr, for the Respondent

HEARD: September 14-18, 21-23, 2015

REASONS FOR decision

R. SMITH j.

[1] The Crown seeks a finding that Mr. Blake is a dangerous offender on the grounds that his behaviour was of such a brutal nature that it compels the conclusion that his behaviour in the future is unlikely to be inhibited by normal standards of behavioral restraint. This is a definition of a dangerous offender as set out in section 753(1)(a)(iii) of the Criminal Code, R.S.C., 1985, c. C-46.

[2] As a result of a dangerous offender finding, the Crown seeks a sentence of detention in a penitentiary for an indeterminate period. In the alternative, if I do not find that the accused is a dangerous offender, the Crown seeks a sentence of life imprisonment based on the brutality of the offender’s actions.

[3] The defence opposes a finding that Mr. Blake is a dangerous offender even if his actions in committing the offences were extremely brutal, because they have only occurred on one occasion. The defence submits that the Crown has not proven beyond a reasonable doubt that the extreme brutality of the accused’s behaviour on one occasion compels a conclusion that his future behaviour is unlikely to be inhibited by normal standards of behavioural restraint.

Issues to be decided

[4] The issues to be decided are as follows:

(a) What were the findings of fact express or implied that were essential to the jury’s verdict?

(b) Has the offender been convicted of a serious personal injury offence?

(c) Does the offender constitute a threat to the life, safety, physical or mental wellbeing of other persons?

(d) Was the offender’s behaviour in committing the offences of a brutal nature?

(e) Has the Crown proven beyond a reasonable doubt that the offender’s behaviour was of such a brutal nature to compel the conclusion that his behaviour in the future is unlikely to be inhibited by normal standards of restraint?

(f) What sentence should be imposed on Mr. Blake if he is found to be a dangerous offender?

Issue #1

What were the findings of fact, express or implied, that were essential to the jury’s verdict?

[5] Section 724(2) of the Criminal Code reads as follows:

Where the court is composed of a judge and jury, the court

a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and

b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.

[6] Section 724(3)(e) of the Criminal Code states as follows:

a) Where there is a dispute with respect to any fact that is relevant to the determination of a sentence, the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction by the offender.

[7] In the decision of R. v. Ferguson, 2008 SCC 6, 2008, 1 S.C.R. 96 at para.16 to 18, the Supreme Court of Canada stated that:

Two principles govern the sentencing judge in this endeavour. First, the sentencing judge “is bound by the express and implied factual implications of the jury’s verdict”

Second, when the factual implications of the jury’s verdict are ambiguous, the sentencing judge …should come to his or her own independent determination of the relevant facts. In so doing, the sentencing judge, “may find any other relevant fact that was disclosed by evidence at the trial to be proven” (s. 724(2)(b)). To rely upon an aggravating fact or a previous conviction, the sentencing judge must be convinced of the existence of that fact or conviction beyond a reasonable doubt; to rely upon any other relevant fact, the sentencing judge must be persuaded on a balance of probabilities.

Application of the principles:

[8] I was not the trial judge in this matter. Roy J. was the trial judge but retired before the sentencing hearing and the dangerous application were heard. I have read all of the transcripts of the trial and I have also asked the Crown to provide me with a summary of the findings of fact that she submitted the jury made, by implication, when reaching their verdicts.

[9] The defence was given a copy of the Crown’s summary of the jury’s findings and asked to provide its comments. The defence commented on several paragraphs in the summary and I heard submissions from both counsel on the defence’s proposed amendments to the Crown’s summary.

[10] The offender defended the charges on the grounds that this was a case of mistaken identity. In other words he testified that he was not the attacker who committed the brutal acts of repeatedly stabbing Mr. Frank Renaud (or “Frank”) 18 times and who cut Ms. Amalle Thomas’s (or “Amalle”) throat while she was confined on a chair in her basement. The offender testified that he was given the keys to the Renault-Thomas’ SUV by a stranger at approximately 5 a.m. The stranger then hugged him, which explained why the offender had the two victim’s blood on his sweater and then he drove off in the vehicle and was chased by the police.

[11] At trial, the offender did not challenge Frank Renaud’s or Amalle Thomas’s evidence of how they were brutally attacked in their own home, as his defence was that he was not the perpetrator of these violent acts towards them.

[12] The offender never agreed with the Crown’s summary of the jury’s implied findings of fact, but made objections to several paragraphs which I will address below.

[13] The Crown provided a written summary of the facts that she submitted were found by the Jury in paragraphs 1-44. The defence made submissions disputing the facts or suggesting additional findings in several paragraphs. The defence did not consent to but did not dispute the findings of fact set out in the summary except for the suggested changes.

[14] I find that the jury made the express or implied findings of fact as set out in paras 1-44 of the Crown’s summary, with the addition to paragraph 1, as suggested by defence, based on the verdicts rendered, on my review of the transcripts of the evidence called at trial, and after hearing submissions from counsel. I have set out my reasons for refusing to accept the offender’s suggested findings of fact by the Jury under each paragraph where the offender suggested changes.

Crown’s Summary of Jury’s Findings: (Paragraphs 1-44)

1. On May 14^th, 2010, Mr. Blake attended the Home Depot located at 1900 Baseline Rd. While there, he purchased a number of items including a package of 100 zip ties, a 2 pack of duct tape and some nylon rope.

The offender suggested the following addition to paragraph 1:

• “Some if not all of these items were usable in his work as a house renovator.”

Discussion

(a) The Crown agreed to the defence’s suggested amendment. Paragraph 1 is therefore amended, to add “some if not all of these items were usable in his work as a house renovator.”

(b) The jury found that 10 of the 100 zip ties were used by the accused in confining Mr. Renaud and Ms. Thomas. Part of one of the two rolls of duct tape was also used in confining the victims. The two rolls of duct tape, 100 zip ties and nylon rope were all purchased by the offender approximately a month before the offences were committed. The offender did not use these items in his work as a house renovator between the date of their purchase and the commission of the offence. Mr. Blake was an employee and therefore would not be required to supply work materials for his employer. While some of the items could have been used in his work, I find that they were not purchased for work purposes.

2. In June 2010, Richard Blake was living in apartment 2 at 2077 Baseline Rd. with a roommate name Abdulrahman Al-Sadder. Mr. Al-Sadder moved in with Mr. Blake in September 2009.

3. Around 11:30 pm on June 25^th, 2010, Mr. Al-Sadder returned from work. Mr. Blake was home and watching a movie. Mr. Blake’s movie finished sometime before 1:00 am, and he went into his bedroom and closed the door. Mr. Al-Sadder went to bed around 2am.

4. Mr. Blake put 10 zip ties in his pocket, attached several strips of duct tape to the underside of his shirt, put on a black toque and latex gloves, and armed himself with at least 2 knives before setting out in search of victims.

The offender suggested the following addition to Paragraph 4:

• “The real intention of the assailant before entering the house of Mr. Renaud and Ms. Thomas is not clear”.

Discussion

(a) The jury convicted the accused of the attempted murder and aggravated assault of Mr. Renaud and Amelle Thomas, breaking and entering a dwelling house, confining Mr. Renaud and Amelle Thomas without lawful authority, robbery of Ms. Thomas and Mr. Renaud, theft of a motor vehicle, and operating a motor vehicle in order to evade a peace officer.

(b) I do not agree with the submission that the offender’s intention was not clear when he entered the victim’s house. I find that the jury found that the offender intended to confine and kill the occupants when he entered their house because he was armed with at least two knives; he was wearing latex gloves and a black tuque; he had attached strips of duct tape to the underside of his shirt; he had ten zip ties with him; once he entered the home he stabbed Mr. Renaud approximately 18 times (including two stab wounds on the right side of his torso in order to confine Mr. Renaud back into the bedroom); and he cut Ms. Thomas’s throat three times while she was confined in a chair. Based on the above evidence, I find beyond a reasonable doubt that he intended to confine and kill Ms. Thomas and Mr. Renaud when he entered their residence.

(c) The Jury found Mr. Blake guilty of the attempted murder of both Mr. Renaud and Ms. Thomas. To have arrived at a conviction for attempted murder, the jury would have considered all of the evidence including what the offender did or did not do; how he did it, and what he said during the period of time the offences were being committed and the jury found that the offender meant to kill Mr. Renaud and Ms. Thomas.

(d) At trial, the offender did not challenge any of the evidence of what happened to Ms. Thomas or Mr. Renaud in their home. Based on the unchallenged description, what the offender did while in the victim’s home as set out in the summary provided by the Crown and the transcript of the evidence that I have reviewed, the offender meant to kill both Ms. Thomas and Mr. Renaud as the jury found him guilty of attempted murder of both these individuals.

(e) For the above reasons, I would not add the offender’s suggested wording to paragraph 4 as I find that the jury found that his intention was clear, namely that he intended to confine and kill the two occupants, namely Ms. Thomas and Mr. Renaud, when he entered their home.

5. Around 11pm on the evening of June 25, 2010, Frank Renaud and Amalle Thomas went to bed in their home located at 1265 Rideout Crescent in Ottawa. This is the house that Amalle Thomas grew up in. This house is less than a 10 minute walk from Mr. Blake’s apartment. Mr. Blake did not know Frank Renaud or Amalle Thomas, who are law-abiding civil servants.

6. 1265 Rideout Crescent is a 3 bedroom bungalow and the kitchen faces the street. Under the kitchen window, about 50 landscaping bricks were stacked about 3-4 feet high waiting to be used. Mr. Blake restacked these in order to facilitate his entry into the house.

The offender suggested the following addition to Paragraph 6:

• “The assailant restacked them in order to get into the house.”

Discussion

(a) The suggested addition does not add anything other than removing Mr. Blake and referring to the assailant. The evidence was uncontested that the offender restacked the landscaping bricks in order to facilitate his entry into the house. The jury convicted Mr. Blake of attempted murder and therefore found that he was the assailant.

7. Sometime between 2:00 and 3:00 in the morning, Frank Renaud heard a noise in the kitchen. He got up and went into the kitchen and noticed a pair of shoes on the floor right under the sink. He also noticed that the window screen over the kitchen sink had been cut.

8. Still half asleep, Frank started to walk around the house. As he went towards the 3^rd bedroom, Mr. Blake emerged from that room with a knife in each hand and started stabbing Mr. Renaud with both hands. He held a yellow utility knife in his left hand, and a butcher knife in his right hand.

The offender suggested the following addition to Paragraph 8:

• “The defence does not concede that it was Mr. Blake; notwithstanding the jury’s verdict.”

Discussion

(a) This proposed addition should not be added because it would be inconsistent with the jury finding the offender guilty on all counts. The offender maintains that he was not the assailant who violently attacked Mr. Renaud and Ms. Thomas in their home. However, the jury rejected the offender’s defence and found that he was the assailant because they convicted him of all 11 counts, including the attempted murder of Mr. Renaud and Ms. Thomas.

9. In an attempt to protect himself, Frank put his arm up in front of him, resulting in multiple stab wounds to his right arm, hand and finger. Frank was backed into his own bedroom and then into his bed, where his wife still lay sleeping. Mr. Blake was stabbing him repeatedly.

10. As Frank fell onto his bed, he put his legs up to try and protect himself, and he sustained approximately 15 stab wounds to his legs and feet.

11. Amalle Thomas woke up and said “Stop, stop. You’re going to kill him. What do you want?” At that point, Mr. Blake stopped stabbing Frank. Amalle asked to turn a light on and Mr. Blake said “go ahead”.

12. When Amalle turned the light on she saw all of the blood and began panicking. She said that Frank was going to die, and Mr. Blake told her “No he won’t. I’ve seen this before”.

13. Amalle was permitted to tend to her husband’s injuries, and used items of clothing to try and stop the bleeding. Mr. Blake was wearing latex gloves and a dark toque with a Blue Jays logo on it. After the first few minutes, he made no effort to hide his face from Frank or Amalle.

14. Mr. Blake asked Frank and Amalle if they were the Sandersons or Andersons. They said there were not. He asked if they were lying to them, and Amalle said he could check their identification. Mr. Blake then said something like, “sorry I have the wrong house” or “wrong people”. Amalle then said, “If you have the wrong house, just leave.” Mr. Blake said “I can’t do that. My boss wouldn’t like it”.

15. No one with the last name Sanderson or Anderson lived in the neighbourhood, according to Amalle’s knowledge or Canada Post information.

16. Mr. Blake produced a zip tie from his pocket and told Amalle to bind her own wrists together. She complied out of fear. Mr. Blake tightened the zip tie once she had put it on. Mr. Blake then lifted his shirt to reveal some strips of duct tape and he gave one to Amalle and told her to put it over Frank’s mouth. He told Amalle to push it hard onto Frank’s mouth. She did and he told her twice to do it harder. Eventually Mr. Blake came over himself and pushed on the tape covering Frank’s mouth. Amalle noticed Mr. Blake was wearing latex gloves.

17. Mr. Blake then produced more plastic zip ties and told Amalle to tie up her husband’s legs. She protested, saying that he’s lost a lot of blood and not going anywhere. Mr. Blake insisted so Amalle tried to do it but struggled since her own hands were bound.

18. Mr. Blake left Amalle and Frank in the bedroom and went around the house, coming back periodically to check on them. He emptied Amalle’s purse on the floor and took her bank card. He piled up some of their belongings, including their laptop and address book. At one point he told them that if they called the police he would kill all the people in their family, indicating the address book. At another point, Mr. Blake asked the time, and Frank noticed that the clock beside the bed said it was 3:39am.

19. Mr. Blake asked for the PIN number for their bank card and keys to the truck. He wanted Amalle to get changed so that she could go with him to the bank. Frank gave Mr. Blake the PIN and said he didn’t have to take Amalle, but Mr. Blake insisted that she get changed. She asked him to look away while she was changing and Mr. Blake looked away.

20. Mr. Blake told Frank and Amalle “I have to stage a robbery” and asked where their landlines were. Mr. Blake forced Amalle to accompany him throughout the house pointing out where the phone lines were and he cut each one with the utility knife.

21. Mr. Blake then took Amalle down to the basement where he cut another phone line and asked Amalle questions about their television. After making Amalle disconnect some of the cables, Mr. Blake then pushed the television away from the wall a little bit.

22. While downstairs, Amalle tried to convince Mr. Blake to leave. She said “Are you sure you want to be responsible for a man dying up there?” Mr Blake replied “I’ve gotten away with things before. Give me a better reason”. Amalle said “A conscience, but you don’t have one”. Mr. Blake then said to her, “We’re going to play a game. You’re going to kill your husband”. Amalle said that it sounded like Mr. Blake was having fun, like this was a game for him.

23. Mr. Blake asked Amalle if they had any duct tape, and she found some for him in the furnace room. At that point Mr. Blake was looking around as if he wasn’t sure what to do with her. So Amalle suggested that if he was afraid she was going to leave he could tie her to a chair. She hoped that this might make him leave. He said “Good idea” with a smile, like he was having fun.

24. Mr. Blake then tied Amalle to a chair with the duct tape. He taped around her head, covering her mouth. He then taped around her shoulders and the back of the chair. Lastly he taped her feet to the legs of the chair. He then went back upstairs.

25. Frank heard the sound of duct tape being unrolled downstairs. Then Mr. Blake came back upstairs alone and began putting more duct tape on Frank. He put it over Frank’s mouth, and taped his arms and legs together.

26. After that, Mr. Blake asked Frank if he was alright and brought him a pillow for his head and for his legs. Frank was having trouble breathing, and Mr. Blake used the yellow utility knife to cut a slit in the duct tape over his mouth. At Frank’s request, Mr. Blake brought him his asthma puffer and permitted him to use it.

27. While Mr. Blake was upstairs, Amalle was yelling through the tape covering her mouth “Leave, just leave”. Mr. Blake came to the landing and bent down to look at Amalle through the railing at the landing, asking her “What?” as though this were a game.

28. Frank could hear muffled sounds coming from Amalle – it sounded like she was trying to talk through duct tape. Frank then summoned the strength to rip off some of his bindings and stagger through the hallway towards the front door.

29. Frank came face-to-face with Mr. Blake in the living room, who said “Where do you think you’re going? If you leave, I’m going to kill her”. Mr. Blake then stabbed Frank twice on the lower right side of his torso and told Frank to get back in the bedroom. Frank complied and Mr. Blake shut the door.

30. Mr. Blake was confining Frank Renaud in order to return later to finish the job of killing him.

The offender suggested the following addition to Paragraph 30:

• “The defence does not concede that the assailant had the intention that the Crown is ascribing to him.”

Discussion

(a) The Crown submitted that the jury found that Mr. Blake was confining Frank Renaud in the bedroom in order to return later to finish the job of killing him. I agree that this is what the jury found for the following reasons:

(i) The jury found the offender guilty of the attempted murder of Frank Renaud;

(ii) Mr. Renaud was stabbed 18 times over a two hour period;

(iii) The offender confined Mr. Renaud in the bedroom while he was unmasked and could therefore be identified;

(iv) The offender went down to the basement and cut Ms. Thomas’s throat three times to her backbone while she was confined to a chair and would have believed that he had killed her;

(v) The jury found that Mr. Blake was confining Mr. Renaud and meant to return to the bedroom to kill him and was prevented of doing so by Mr. Renaud throwing himself out the bedroom window because they convicted the offender of the attempted murder of Frank Renaud.

31. Mr. Blake then returned to the basement. He said to Amalle “I’m sorry, have I scarred you for life?”. He then pulled the chair she was sitting in further away from the stairs, and cut her throat 3 times. At some point Amalle was able to get her hand up near her face and she got a cut on her arm and face as well. Mr. Blake then pushed her chair over and he went upstairs.

32. In cutting her throat, Mr. Blake was trying to kill Amalle Thomas.

The offender suggested the following addition to Paragraph 32:

“It is submitted that if the assailant had really intended to kill Ms. Thomas that he could have easily done so.”

Discussion

(a) The evidence was unchallenged that Ms. Thomas’s throat was cut on three occasions back to her spine while she was tied to a chair in the basement. The jury convicted the accused of attempted murder of Ms. Thomas. I find beyond a reasonable doubt that the jury found that Mr. Blake was trying to kill Ms. Thomas when he cut her throat in the manner described in the evidence at trial.

33. Fearing that Mr. Blake was going to kill Amalle when he went downstairs, after Mr. Blake shut the bedroom door Frank was able to get up from the bed. He pushed the screen out of the bedroom window and dropped the 8 or 9 feet from the window to the ground. Weak and bleeding, Mr. Renaud then made his way a few houses down the street to the home of his brother-in-law and sister-in-law, where he banged on the door until they answered.

34. Amalle lay bleeding on the floor, unable to get free of her bindings. Eventually, she was able to pull the chair free of the duct tape and began to make her way up the stairs. At this point she heard the front door of their house open and shut, and she knew that Mr. Blake had left.

35. Mr. Blake, having slit Amalle’s throat had returned upstairs to try to kill Frank as well. Upon opening the door to Frank and Amalle’s bedroom, he realized that Frank had escaped. Mr. Blake then took the keys to Frank and Amalle’s vehicle, and used it to flee the scene.

The offender suggested the following addition to Paragraph 35:

“It is submitted that if the assailant had intended to kill Mr. Renaud, that he could have easily done so.”

Discussion

(a) The accused could have stabbed Mr. Renaud fatally at an earlier point during his confinement; however, this does not determine the issue of whether the offender intended to return to the bedroom to kill Mr. Renaud after he had slit Ms. Thomas’s throat three times. The jury found Mr. Blake guilty of attempted murder of Mr. Renaud and therefore found beyond a reasonable doubt that the offender intended to kill Mr. Renaud. When all the evidence is considered, including, the lengthy period of confinement and torture of both Ms. Thomas and Mr. Renaud, that Mr. Blake was not wearing a mask, the offender believed that he had successfully confined Mr. Renaud in the bedroom when he went down to cut Ms. Thomas’s throat, he had inflicted two serious stab wounds to Mr. Renaud’s torso that led to his being re-confined in the bedroom, I find that the jury found that the offender intended to return to kill Mr. Renaud in the bedroom after he had killed Ms. Thomas in the basement by slitting her throat.

36. While waiting for someone to answer the door at his in-laws’, Frank saw Mr. Blake drive past in their red 2004 Ford Explorer. His sister-in-law answered the door and called for her husband. She then called 911 while her husband, Amalle’s brother, ran to her house. Amalle’s brother found her collapsed at the top of the stairs, choking on her blood. He applied pressure to her neck with a towel until the paramedics arrived.

37. The 911 call was received at approximately 5:03 am. The first officers arrived at 5:08 am. At 5:16 am, Sgt. Ian Hayes observed Frank and Amalle’s red Ford Explorer being driven by Mr. Blake heading westbound on the 417 in the area of Moodie Drive.

38. Officers attempted to stop the vehicle by activating their lights and sirens, but Mr. Blake did not stop. Police attempted to box the vehicle in, but Mr. Blake swerved into a police vehicle, colliding with it, and then executed a U-turn that took him down into the ditch separating east-bound and west-bound traffic on the 417. Mr. Blake then drove eastbound on the 417 for a distance before colliding with a guard rail on an off-ramp. His vehicle came to a stop and Mr. Blake then fled on foot.

39. A canine unit tracked Mr. Blake from the Ford Explorer through a wooded area, and eventually, Mr. Blake was located about 20 feet up a tree. The shirt he was wearing was found to have a strip of duct tape attached to the inside. On that same shirt, blood and a DNA profile matching that of Frank Renaud was found.

40. Inside the red Ford Explorer, police located 3 knives. One knife was a butcher knife and one was a utility knife. The blood of both Frank and Amalle was on these 2 knives. Mr. Blake’s DNA was found on the handle of the utility knife.

41. Bloody latex gloves and a black toque with a blue jays logo were also found in the vehicle. Mr. Blake’s DNA was found on these items as well.

42. Mr. Renaud received at least 18 stab wounds. The majority of these were described as superficial, meaning that they could be sutured and did not penetrate to organs beneath. One of the wounds penetrated his right kidney a little over an inch, and could have been fatal had it been a couple of inches to one side or the other.

The offender suggested the following addition to Paragraph 42:

“If the assailant had intended to kill Mr. Renaud, he could have easily done so.”

Discussion

(a) I find that the jury found that the offender intended to return to the bedroom to kill Mr. Renaud for the same reasons as previously given under para. 35, based on the jury’s conviction of attempted murder of Mr. Renaud.

43. Ms. Thomas had sustained very serious injuries to her face and neck. Her larynx had been lacerated and the air passage and swallowing pipe had both been transected completely. The wounds to Ms. Thomas’s throat extended from the left side to the right side of her neck, from the front of her neck all the way to her spine at the back.

44. Her jugular vein had been lacerated and the carotid artery was exposed by the wound. If the knife had been a fraction of a millimeter over, her carotid artery would have been lacerated and the wound would have certainly been fatal within a few minutes.

[15] For the above reasons, I find that the jury made the findings of facts set out by the Crown Attorney in paragraphs 1-44 above with the addition suggested by defence to paragraph 1, and that these facts were essential to their convictions on all counts.

Disposition of Issue #1

[16] I find beyond a reasonable doubt based on reviewing the transcripts of the evidence presented at trial, as well as the exhibits, that the jury made the findings of fact as set out above in paragraphs 1-44, with the addition to para. 1 as suggested by the offender, for the reasons given above.

Issue #2

Has the offender been convicted of a serious personal injury offence?

[17] Section 752 of the Criminal Code defines a “serious personal injury offence as follows:

(1) an indictable offence other than high treason, treason, first-degree murder or second-degree murder, involving

(i) use or attempted use of violence against another person; or

(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person.

[18] I agree with the Crown’s submission, which was not contested by the offender, that the offender’s convictions for attempted murder, aggravated assault, forcible confinement and robbery meet the above definition. In addition the findings of fact that were made by the jury in order to convict the accused as set out in paragraphs 1-44 of the Crown’s summary, which I have referred to earlier, the offender was convicted of conduct which constituted serious personal injury offences.

Disposition of Issue #2

[19] The offender was convicted of a serious personal injury offence as he was convicted of attempted murder, aggravated assault, forcible confinement and robbery of Mr. Renaud and Ms. Thomas.

Issue #3

Does the offender constitute a threat to the life, safety, physical or mental wellbeing of other persons?

[20] In R v. Johnson, 2003 SCC 46, at paras.19, 23 and 29, the Supreme Court of Canada, held that the purpose of a dangerous offender proceeding was the “protection of the public” from those who pose a risk of repeated violent behavior. The overriding aim is not punishment but prevention of future violence through the imposition of an indeterminate sentence. As a result other traditional objectives of sentencing such as rehabilitation are given significantly less consideration. The Crown bears the onus of establishing beyond a reasonable doubt that the offender meets the definition of a dangerous offender,including the criteria that the offender constitutes a threat to the life, safety physical or mental wellbeing of another person. (See R. v. Johnson at paragraph 4 and 5; R. v. F.E.D., 2007 ONCA 246, 2007 OJ No. 1278 (Court of Appeal) at paras. 38 to 55).

[21] Dr. Bradley Booth was qualified as an expert forensic psychiatrist. He adopted the following statements at page 32 of his report:

In my clinical judgment, I would say that Mr. Blake is capable of showing severe and heinous violence as the index offences and not just low-level violence. There was no visible warning to indicate that Mr. Blake was going to do this type of violence, suggesting he would always be at risk of imminent violence without significant warning signs of increased danger. Thus, he is at a significant risk of severe and life-threatening violence. He would appear unlikely to restrain his behavior in the future given he did not in the index episodes of violence.

[22] Dr. Booth relied on seven clinical factors to support his opinion that the offender was unlikely to be inhibited by normal standards of behavior in the future and constituted a threat to the life safety both physical and mental wellbeing of members of the public at the present time. The seven clinical factors listed by Dr. Booth that support his opinion were the following:

1. There was a high degree of planning for the offence which included purchasing duct tape and zip ties and rope approximately a month before the offences occurred. The offender also packed a duffel bag filled with clothing to allow him to make a get away from the crime scene;

2. There was the lack of impulsiveness in the commission of the attempted murders of Mr. Renaud and Ms. Thomas. The offender had planned the offence as mentioned above and confined Mr. Renaud and Ms. Thomas in their home for a period of over two hours before deciding to go down to the basement and cut Ms. Thomas’s throat three times;

3. In Dr. Booth’s opinion the accused displayed a lack of a moral compass. He did not express any remorse for the injuries suffered by his two victims; for the nature of the offence which was extremely violent and brutal with the slashing of Ms. Thomas’s throat back to her spine on three occasions, for restraining both Mr. Renaud and Ms. Thomas for a period of over two hours, for essentially playing with and torturing the victims by suggesting that he might let them go and then changing his mind; and for telling the victims that he had to stage the scene to make it look like a robbery which indicated that his real intent was to commit murder;

4. The offences were extremely brutal in nature;

5. The offender lacked empathy for his victims; he expressed no empathy for the two victims of his actions although he did express some emotion when discussing his sister.

6. The offender denied any involvement in the offences where the evidence against him was overwhelming. He was found with the victims’ blood on his shirt, with pieces of duct tape still attached to his T-shirt which he had used in gagging the victims and confining them, he was chased by the police on the Queensway while driving the victims’ SUV, containing knives covered with the victims’ blood, and the offender was observed by Mr. Renaud driving away from their home in their SUV after having taken their keys from them while they were confined.

7. The offender has refused to cooperate including his continued denial of being the perpetrator of the offences, which means that there is no possible treatment for the offender because his motivation for committing these brutal and violent acts remains unexplained.

[23] Dr. Julian Gojer has worked as a psychiatrist in the forensic area for many years. He testified on behalf of the defence. He agreed that the offender remained a risk to the members of the public. In his report on page 26, Dr. Gojer acknowledged that the offence had a high degree of lethality, the offender had the underlying intention to cause death, and the offence was perpetrated over a period of time that added to the psychological impact that his actions had on both victims. It is without doubt that they suffered from severe psychological harm along with the physical trauma.

Disposition of Issue #3

[24] I am satisfied beyond a reasonable doubt that the offender constitutes a threat to the life, safety physical or mental well-being of other persons at the present time as a result of the violent offences for which he has been convicted as outlined above and based on the expert psychiatric opinion of Dr. Booth which I accept, and also based on the opinion of Dr. Gojer on this issue. Dr. Gojer agreed that the offender constituted a risk to the life and safety of other persons at this time. The risk to the life and safety of other persons cannot be reduced by treatment or therapy because the psychiatrists are unable to diagnose and understand the cause of his violent actions.

Issue #4

Was the offender’s behaviour in committing the offence of a brutal nature?

[25] In R v. Langevin, 1984 CanLII 1914 (ON CA), 1984 OJ No. 3159 (C.A.), the Court of Appeal stated that brutality was conduct that is “coarse, savage and cruel which is capable of inflicting severe psychological damage.”

[26] In R v. Campbell, 2004 CanLII 19316 (ON SC), [2004] O.J. No. 2151, Hill J stated at paras 52 and 55 that the ascertainment of the existence of brutality will vary with the crime itself, the way in which the offence is committed, the effect(s) on the victim, and the offender’s attitude and mental state.

[27] At paragraph 50 of the Campbell decision, the Court stated that the starting point for determining whether conduct is “of such a brutal nature” is conduct which is coarse, savage and cruel and which is capable of inflicting severe psychological damage on the victim. Because of the use of the words “capable of”, the court contemplated behavior which could tend to cause, or carry a risk of causing, severe psychological harm without any requiring that such harm actually be occasioned.

[28] At paragraph 47 of the Campbell decision, Justice Hill expanded on the factors set forth in the Langevin decision and referred to dictionary definitions which were synonyms of “brutal”, including “merciless, unfeeling, ruthless violence, vicious and inhumane human conduct.”

[29] The brutal conduct does not have to amount to conduct characterized as “stark horror”. However, I find that the circumstances experienced by the two victims Mr. Renault and Ms. Thomas, namely Mr. Renaud being stabbed multiple times and confined to his bedroom, Ms. Thomas being tied to a chair confined and having her throat slashed to her spine by three cuts, the victims being tortured for approximately two hours, the offender telling Ms. Thomas that “they would play a game and that she would be forced to kill her husband”, amount to the circumstances of stark horror. In this case I also find that the offender inflicted severe psychological damage on both Mr. Renaud and Ms. Thomas. They have both suffered and continue to suffer posttraumatic stress disorder (“PTSD) and severe depression and mental illness following the ordeal they experienced.

[30] At paragraph 84 of the Campbell decision, Hill J. held that when determining whether behavior is of “such a brutal nature” the Court concerns itself not only with the effects on a victim but also the attitude and mental state of the offender in committing the serious personal injury offence. In this case, Mr. Blake appeared to enjoy toying with and torturing both Ms. Thomas and Mr. Renaud. He inflicted pain on Mr. Renaud by stabbing him approximately 18 times most of the wounds were not intended to be fatal, but to confine him in the bedroom and restrain him. The offender showed no remorse for his victims. Mr. Blake was very unfeeling when he cut Ms. Thomas’s throat deeply to her spine on three occasions and then pushed her chair to the ground.

[31] In R v. Melanson, [2011] O.J. No 869, the Ontario Court of Appeal stated that in considering whether the provisions of s 753(1)(a)(iii) of the Criminal Code were met, the Court should look at any conduct “associated with the offence which would include the elements of planning by the offender as well as the dangerous actions taken by the offender while attempting to escape capture from the police”.

Disposition of Issue #4

[32] I am satisfied beyond a reasonable doubt, that Mr. Blake’s conduct constitutes brutal behavior within the definition of section 753(1)(iii) of the Criminal Code based on the circumstances of committing the offences outlined above as found by the jury, included his planning, his unfeeling and detached conduct while cutting Ms. Thomas’s throat on three occasions, his infliction of severe psychological damage on both victims while he confined them for over two hours, playing a game with Ms. Thomas by trying to get her to kill her husband, inflicting multiple stab wounds to Mr. Renaud, (approximately 18 stabbings over a two-hour period), the severity of slashing Ms. Thomas’s throat on three occasions back to her spine, the offender’s lack of remorse for his conduct including causing extreme physical and psychological damage to the innocent victims, and his dangerous actions of attempting to escape from the police.

Issue #5

Was the offender’s behaviour of such a brutal nature to compel the conclusion that his behaviour in the future is unlikely to be inhibited by normal standards of restraint?

[33] I have found that the offender’s behavior as outlined above in this decision to be of an extremely brutal nature and that his lack of empathy and remorse was also an aggravating factor in the commission of these brutal offences.

[34] Dr. Booth, testified that in his opinion, there was a significant risk that the offender’s behavior in the future was unlikely to be inhibited by normal standards of restraint as a result of the extremely brutal nature of the attacks. The brutality included a high level of severe violence which was planned and deliberate; which in his opinion made it likely that the offender would commit violence to members of the public in future. The VRAG psychological test predicted a 17% likelihood that he would reoffend violently within seven years and a 31% likelihood of reoffending violently within 10 years. Dr. Booth relied on the VRAG test as part of his assessment of the risk of his reoffending violently.

[35] In addition to the VRAG test and to the psychological testing he administered, Dr. Booth considered the following clinical factors when arriving at his opinion that there was a significant risk that the offender would commit severe life threatening violence in the future:

(a) The accused was a first-time offender and had not committed any criminal offences in his first 26 years of life;

(b) The offender was convicted of seven very violent offences including two for attempted murder, two for aggravated assault, two for robbery and one for theft, as well as his flight from the police officers;

(c) Dr. Booth considered the results of the psychological tests that he administered to the offender, which Dr. Gojer agreed were the appropriate tests and which indicated that the offender was not a psychopath;

(d) There was an absence of any evidence of substance abuse;

(e) There was an absence of any evidence that he suffered from a psychosis;

(f) There was an absence of any evidence of sexual deviance;

(g) The accused had a positive work history, and had no record of committing violent acts in his past; and

(h) No clear personality disorder could be diagnosed.

[36] Dr. Booth concluded that even though there was only one occurrence of extreme violence, considering the above factors, the offender remained a significant risk of committing severe life-threatening violence to members of the public in the future.

[37] Dr. Gojer testified that many of the clinical factors relied on by Dr. Booth were in fact similar to one another and were not separate factors. He testified that, in his opinion, the fact that the offender’s actions were well planned in advance was not a predictor of future violent behavior because no one knows what motivated the accused to violently attack Mr. Renault and Ms. Thomas.

[38] Dr. Gojer testified that the lack of impulsiveness in the accused’s actions was similar to the fact that the offences were well planned and deliberate. He acknowledged that the offender’s violent actions were not committed in the heat of the moment or done for a specific purpose that was known. Dr. Gojer did not disagree that the accused displayed the lack of a moral compass and that someone without a moral compass was more likely to disregard the behavioral rules of society, but the VRAG test indicated that he was not a psychopath.

[39] With regards to the offender’s lack of empathy, Dr. Gojer acknowledged that the offender displayed a blunted affect and some schizoid traits but, in his opinion, this was different from having a lack of empathy. Dr. Gojer acknowledged that the accused was not empathetic to his victims at the time of the offences but the psychological tests indicated that the offender was not a psychopath. `Dr. Gojer testified that the serious nature of the violence inflicted by the offender while committing the offence and that he did so over a prolonged period of time was not itself a predictor that he would commit violent acts in the future, without knowing what motivated the offender. Without understanding that motivation, in his opinion it was impossible to predict the likelihood of future violence by the offender.

[40] In Dr. Gojer’s opinion, the accused’s continued denial of any responsibility for the violent actions in the face of overwhelming evidence that he was the perpetrator and assailant of the two victims was an aggravating factor that gave him concern. However, Dr. Gojer testified that the risk that the offender would commit violent acts again in the future was captured in the risk assessment in the VRAG test. Dr. Gojer increased his risk assessment from a low-moderate risk to a moderate risk as a result of this factor.

[41] Dr. Gojer also testified that the offender’s lack of cooperation as a result of the offender’s continued denial of responsibility also concerned him. However, he was not able to diagnose any mental illness that could be treated and that the offender’s lack of cooperation was taken into account in the VRAG test assessment of risk.

[42] In Dr. Gojer’s opinion, I should only rely on the psychological tests that were used to evaluate the risk of violent actions by the offender in the future and I should not rely on the clinical factors relied on by Dr. Booth. Dr. Gojer did not say that the clinical factors identified by Dr. Booth could not be used when assessing the risk of future violent acts. Dr. Gojer testified that this was a value judgment.

[43] In cross-examination, Dr. Gojer agreed that the risk management test results were not complete and had to be contextualized by a clinical forensic psychiatrist. Dr. Gojer also agreed that at the present time, the accused posed a risk to the safety of the public largely because he was not able to make any diagnosis and as a result he was unable to provide any treatment to the offender at this time.

[44] The inability to make a diagnosis and provide treatment was largely as a result of the offender’s refusal to cooperate and his continued denial of any responsibility for the violent acts.

[45] Dr. Gojer also agreed that he was unable to identify any risk factors which led to the violent brutal actions of the offender.

[46] Ultimately, Dr. Gojer declined to give an opinion on whether the offender would or would not be likely to be inhibited by normal standards of restraint in the future. In his opinion, such a prediction cannot be made based only on the brutality of the accused’s actions during the offences. Dr. Booth agreed that there was no double-blind study on whether the brutality of an offender’s actions was a predictor of future violent actions and he testified that it would be inappropriate to conduct such a study on unsuspecting members of the public.

[47] The Criminal Code states that if the offender’s behavior is of such a brutal nature as to compel a conclusion that their behavior in future would be unlikely to be inhibited by normal standards of restraint then a finding of a dangerous offender may be made. Defence counsel argued that I should ignore this section of the Criminal Code and submitted that it was inappropriate to have such a section in the Criminal Code. I am not prepared to ignore this section of the Criminal Code as suggested by defence counsel. In the absence of a constitutional challenge I am bound to follow the provisions of the Criminal Code which include the above criteria for finding that the accused is a dangerous offender.

[48] Dr. Gojer testified that accused’s continued denial of guilt for the offences in the face of overwhelming evidence was concerning and was likely deliberate untruthfulness because of the absence of any evidence he suffered from a delusion. As a result, Dr. Gojer agreed that the court and the psychiatrists had to proceed with caution based on what the accused told them. The psychological testing was largely based on what the offender told the person administering the test.

[49] Dr. Booth is duly qualified as a forensic psychiatrist whereas Dr. Gojer has not written the exams to be qualified as a forensic psychiatrist; rather he is a psychiatrist who has practiced extensively in the forensic field. Dr. Gojer has also always prepared reports for the defence in over 200 cases.

[50] Dr. Gojer accepted all of the results of the tests as interpreted by Dr. Booth and agreed that Dr. Booth had conducted all the appropriate forensic and psychological tests. Dr. Gojer testified that he did not give the offender a clean bill of mental health and the fact that he has not been able to diagnose a mental disorder; and that it remains possible that the accused has a mental illness of some sort. He testified that he had an index of suspicion of mental illness and did not give an opinion that the accused did not have any mental illness. Dr. Gojer agreed in cross examination that the offender was a threat to the safety of others at the present time, that in order to manage the risk that the offender poses to the public he must first understand his motive and that any treatment depends on the motivation of the accused.

[51] Dr. Gojer agreed that when he testified before the Mental Health Review Board that the severity of the violence is a factor for releasing an accused and that the Review Board would be more likely to accept a higher level of risk if a minor amount of violence was involved with the offence. In this case, Ms. Thomas had her throat violently slashed 3 times and Mr. Renaud was stabbed 18-22 times which was a very high level of violence.

[52] The accused has been in custody for five years and during this time, he was has been involved in one assault but otherwise has not displayed any concerning behavior. In the absence of understanding of the motivation of the accused for committing such violent acts and in the absence of any treatment plan, there is no way of knowing if the offender’s mental state has changed from when he committed the violent offences.

[53] The Crown called evidence from Ms. Hefferman and Ms. Lemieux, from Correctional Services, who outlined the long term supervision plan, release plans, including parole, as well as the various treatment plans that were available for inmates who have accepted responsibility for their actions and who have a problem that has been diagnosed and can be treated. The witnesses both agreed that they do not have any treatment plan that would be of assistance to Mr. Blake because he continues to deny responsibility for committing the violent acts against Mr. Renaud and Ms. Thomas, and he has refused to cooperate, and as a result the offender has not been diagnosed with any mental problem that can be treated to reduce the risk that he will reoffend violently again in the future.

[54] If the offender is designated as a dangerous offender, he will be eligible for parole in 7 years from the date of his arrest which would be in approximately two years. The offender’s parole would be reviewed automatically every five years thereafter, or earlier at any time if the offender applied for parole. Ms. Hefferman testified that the offender’s continued denial would make it more difficult for the Parole Board to determine the risk level.

[55] Dr. Gojer ultimately testified that it was the role of the Court to decide whether the accused’s behavior was of such a brutal nature as to compel the conclusion that his behavior in the future would unlikely be inhibited by normal standards of restraint and not that of the psychiatrist. While true, this was not helpful evidence for me. Dr. Gojer agreed that there was an unusual level of cruelty involved and that the offender’s conduct would have caused intense psychological harm to his victims. Dr. Gojer also acknowledged that there was a sadistic component from an objective view based on the evidence related to Ms. Thomas.

[56] In paragraph 27 of Dr. Gojer’s report, he stated as follows:

I agree with Dr. Booth, that the results of the VRAG and PCLR tests and I would add, the HCR 20 also are unhelpful. They suggest a low risk in the face of a deep concern that Mr. Blake could commit a similar act in the future.

[57] However, in his evidence at trial, Dr. Gojer testified that he would rely primarily on the VRAG psychological test rather than on any clinical factors. His evidence at trial was inconsistent with what he said at page 27 of his report. This inconsistency reduces the weight to be placed on his evidence at this hearing. Dr. Gojer acknowledged that he increased the level of risk to moderate based on clinical factors. I find that Dr. Booth’s approach of relying on all of the evidence including both the clinical factors as well as the psychological testing is the better approach. Dr. Gojer ultimately testified that he couldn’t say whether or not the offender would restrain his actions in the future.

[58] I accept Dr. Booth’s opinion that the offender remains a significant risk of committing violent acts in the future and that the brutality of the actions of the accused when committing these offences compel the conclusion that his behavior in the future is unlikely to be inhibited by normal standards of restraint for the following reasons:

(a) Dr. Booth based his opinion on the clinical factors he identified as well as the psychological test results administered by him;

(b) The offender’s motivation for committing these brutally violent acts is not known due to the lack of a diagnosis of any mental disorder which means that there are no treatment programs that would assist in lowering the risk that he would reoffend in a similar violent manner in the future;

(c) The high level of brutality involved in these offences is a significant factor in assessing the risk that the offender is unlikely to be inhibited by normal standards of restraint in the future. It is close to a miracle that Ms. Thomas survived having her throat slashed on 3 occasions by the offender cutting her throat to her spine;

(d) The accused has no substance abuse problems, no impulsive disorders that would otherwise explain his behavior or be amenable to any form of treatment plan that would reduce the risk of his violently reoffending in the future;

(e) The accused lacks a moral compass;

(f) The accused made a plan in advance on how he was going to kill someone on the evening in question, as he had prepared by purchasing zip ties, duct tape and rope approximately a month earlier. The accused also packed a bag with clothing and other items that he took with him which would have helped him to escape;

(g) The accused took delight and appeared to enjoy torturing the victims mentally by proposing that Ms. Thomas kill her husband. He stated that he had to stage the scene to make it look like a robbery which indicated that his true intent was to kill these two homeowners that were selected at random;

(h) He also pretended that he had to report to a superior;

(i) The accused has continued to deny any involvement even though the evidence supporting his conviction and identifying him as the assailant was overwhelming. The only logical conclusion is that he is lying, which makes it very difficult to evaluate the risk that he poses to commit violent acts in the future. There was no evidence that would have predicted such extreme violence from his previous actions as he was working and had no prior violence in his record and this situation remains unchanged because he has not been diagnosed or treated to reduce this risk; and

(j) The offender has committed these very violent brutal acts, remains undiagnosed and untreated, and continues to deny his involvement, which results in a situation where he continues to be untreated, compels me to conclude that his behavior was of such a brutal nature when considered in context with all of the clinical factors, that his behavior in the future is unlikely to be inhibited by normal standards of restraint.

Disposition of Issue #5

[59] I therefore find that the accused is a dangerous offender pursuant to the provisions of Section 753(1)(a)(iii) of the Criminal Code for the reasons given above.

Issue #6

What sentence should be imposed if Mr. Blake is found to be a dangerous offender?

[60] I have found Mr. Blake to be a dangerous offender and found that his behavior was of such a brutal nature to compel the conclusion that his behavior in the future would be unlikely to be inhibited by normal standards of restraint.

[61] I agree with the reasoning of R. v. Wolford, 2007 O.J. No. 744 SCJ at paragraph 77 where the court outlined the following points:

1. in exercising a discretion in respect of sentencing in both dangerous offender and long-term offender matters, the sentencing judge must take into account the underlying objective of public protection.

2. the sentencing discretion must also be exercised judicially, on the basis of the evidence.

3. the evidence about the effect of future treatment on the offender’s medical problems and issues is significant in deciding whether there is evidence of a reasonable possibility of eventual control of the offender’s risk of reoffending in the community. In this case there is no evidence of any future treatment that would be significant, that would provide a reasonable possibility of eventual control of the offender’s risk of reoffending in the community.

4. when there is evidence about the future treatment and its effect on the risk the offender reoffending, the evidence must indicate that the offender can be treated within a definite period of time in order for that evidence to establish a reasonable possibility of eventual control of the risk. In this case there is no evidence before me that the offender can be treated with any therapy or medications and certainly that he may not be treated within a definite period of time in order to establish a reasonable possibility of controlling the risk.

5. An expression of hope that future treatment will reduce the risk of reoffending does not prove a reasonable possibility of eventual control of that risk. I find that Dr. Gojer’s evidence that the offender might be able to be released after two further years of incarceration is just an expression of hope. Dr. Gojer did not provide any evidence of any present or future treatment for this accused because he has continued to deny any involvement in the offence and secondly because no mental disorder or illness has been diagnosed which could be treated or controlled with medication or therapy. As a result, I conclude that Dr. Gojer’s evidence, at its best, provides an expression of hope that there may be some future treatment that would reduce the risk of reoffending by committing another serious personal injury offence. Dr. Gojer’s expression of hope does not provide a reasonable possibility of eventual control of that risk to members of the community.

6. Where evidence about the effect of future treatment on the offender’s risk of reoffending is subject to contingencies, and the evidence is unclear about whether there is a reasonable possibility of the contingencies being satisfied, the court may conclude that such evidence is no more than an expression of hope the future treatment will be effective. I find that Dr. Gojer’s evidence that there is a possibility that there may be some treatment or therapy in the future that are not currently identified to be no more than an expression of hope that some future treatment might be effective. I find they do not constitute a reasonable possibility of eventual control of the offenders risk it in the community.

[62] R v. Klair, 2004 CanLII 8965 (ON CA), [2004] O.J. No. 2320 (CA) at paragraph 15, the Court of Appeal set out an open list of factors to justify the maximum sentence of life imprisonment which were formally the stark horror cases. Those factors are as follows:

a) cruelty, brutality unusual violence;

b) terrorizing and torturing victim over a period of time;

c) intentional, prolonged, repeated violence against victim;

d) acts needlessly repeated or lack of feeling suggesting sadistic intent to cause terror or even torture;

e) intentional infliction of pain, fright, panic that is tantamount to torture solely for gratification or other perverse reason;

f) cruelty and callousness not frequently encountered; and

g) deliberate infliction of brutal disfiguring life-threatening injuries.

[63] The evidence against the offender was overwhelming, namely he had blood containing the victims’ DNA on his shirt, and he was found with pieces of duct tape still stuck to his T-shirt, he was observed driving the victims’ vehicle by Mr. Renaud when he left the victims’ residence; knives were found in the victims’ SUV, which contained DNA samples from the victims’ blood, the offender was identified by both Ms. Thomas and Mr. Renaud as he did not have his face covered during much of the time he terrorized them and confined them in their home. The offender was also chased by the police while driving on the Queensway within about 15 minutes of leaving the scene driving the victims’ SUV.

[64] The jury found that the offender intended to kill both Ms. Thomas and Mr. Renaud and in the case of Ms. Thomas, took steps that very nearly accomplished his objective, but for Mr. Renaud throwing himself out of his bedroom window, the offender could have returned and killed Mr. Renaud in his bedroom.

[65] Section 753(4)(a) of the Criminal Code states that once the offender is found to be a dangerous offender, the court may 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 on 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.

[66] Section 753(4.1) of the Criminal Code states that – 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 a commission by the offender of murder or a serious personal injury offence.

[67] The Crown bears the onus of establishing beyond a reasonable doubt that the offender meets the dangerous offender criteria and I have so found. However, the Crown does not bear the onus of proof in relation to the question of whether there is a reasonable possibility of a lesser measure than an indeterminate sentence in a penitentiary that will adequately protect the public against the commission of further serious personal injury offences by the offender (R. v. Johnson, 2003 SCO N.o45, R v. F.E.D, 2007 OJ number 1278 (CA) at paragraphs 38 to 55

[68] In R. v. F.E.D., at paragraph 44, the Court of Appeal stated as follows:

…placing an onus on the Crown to prove beyond a reasonable doubt that there is no reasonable possibility for eventual control of the risk an offender presents in the community in the context of dangerous offender application would be inconsistent with Johnson….

[69] In R. v. Johnson the court held that a sentencing judge may exercise the discretion not to declare an offender dangerous where the long-term offender criteria are met. Those criteria include the requirement that the sentencing judge be satisfied that there is a reasonable possibility of eventual control of the risk that the offender presents in the community. If the sentencing judge is uncertain whether that requirement is satisfied, the Johnson decision states that the sentencing judge should refuse to exercise his or her discretion not to declare the offender dangerous based on the long-term offender provisions.

[70] The amendments to section 753 of the Criminal Code in 2008 remove the discretion referred to in the above case stating that if the judges remain uncertain of whether there is a reasonable possibility of eventual control of the risk that an offender presents in the community, then the offender should be designated as a dangerous offender and sentenced to an indeterminate sentence of detention in a penitentiary for indeterminate period.

[71] Section 753(4.1) of the Criminal Code states that the presumptive sentence is an indeterminate one in a penitentiary. Section 753(4.1) reads as follows: 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 4(c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

[72] The offender submitted that a sentence of 16 years imprisonment should be imposed, less a credit on a 1.5 to 1 basis for the five years already served by the offender in prison. The Crown submitted that a sentence of an indeterminate term in the penitentiary was an appropriate sentence based on the unique brutal facts of this case.

[73] At present, the offender continues to have a significant risk of reoffending violently based on the expert opinion evidence of Dr. Gojer and Dr. Booth. The offender remains a significant risk until such time as he is diagnosed with a mental illness that may be treated or he develops sufficient insight into his behavior such that his behavior may be understood and treated through therapy or other means. The accused’s continued lack of cooperation, and what can only be described as being untruthful in denying his involvement in committing these offences and his lack of remorse for any of his actions, results in him not being able to benefit from any of the treatment programs available with the Correctional Services of Canada to manage or reduce the risk of committing further serious personal injury offences against members of the public.

[74] Based on the offender’s brutal actions in committing these offences, his continued denial of responsibility in the face of overwhelming evidence, his untruthful statements denying his involvement, his refusal to cooperate with some additional testing, and the expert psychiatric evidence of Dr. Booth convinces me that the only way to protect members of the public from the commission of a further serious personal injury offence by the offender is to sentence him to detention in a penitentiary for an indeterminate term. Dr. Booth testified that from a psychiatric perspective it was unlikely that a measure other than a dangerous offender designation with an indeterminate detention would adequately protect the public. I agree with his opinion for the reasons given above.

Disposition:

[75] For the above the reasons I impose a sentence of detention in a penitentiary for an indeterminate period as I am not satisfied by the evidence adduced during this hearing that there is a reasonable possibility that a lesser measure under 4(b) or 4(c) would adequately protect the public against a commission by the offender of a serious personal injury offence in the future.

R. Smith J.

Released: March 31, 2016

CITATION: R. v. Blake, 2016 ONSC 2204

COURT FILE NO.: 10-RM1897

DATE: 2016/03/31

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Applicant

– and –

RICHARD BLAKE

Respondent

REASONS FOR decision

Justice Robert J. Smith

Released: March 31, 2016