CITATION: R. v. R.K., 2016 ONSC 3654

COURT FILE NOS.: CR/14/50000/4690000

CR/14/50000/4700000

DATE: 20160602

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

R.K.

Mr. M. Wilson, for the Crown/Applicant

Ms. H. Dudding for the Respondent

HEARD: April 4, 5, 6, 14 and 19th, 2016

Publication of Any Information Tending to reveal the identity of the Complainant Herein is Prohibited under s. 486.4 of the Criminal Code of Canada

M. Forestell J.

Reasons for SENTENCE/

DANGEROUS OFFENDER APPLICATION

overview and positions of the parties

1The Respondent, R.K., was found guilty by a jury on July 24, 2014 of the following offences which were committed between March 2012 and January 2013:

(1) Mischief under $5,000 (2 counts);

(2) Forcible confinement;

(3) Threatening death (2 counts);

(4) Threatening bodily harm (2 counts);

(5) Assault (2 counts);

(6) Assault causing bodily harm;

(7) Assault with a weapon (3 counts); and

(8) Sexual assault.

2In addition to the offences decided by the jury, there were four counts of breaching a s. 810.2 recognizance before the Court on a separate indictment. I found Mr. R.K. guilty of those counts following the jury verdicts and his re-election.

3The Crown seeks to have Mr. R.K. declared to be a dangerous offender and sentenced to an indeterminate period of custody in respect of the following "serious personal injury offences": Forcible Confinement (s. 279(2)); Assault Causing Bodily Harm (s. 267(b)); Assault with a Weapon (s. 267(a)) (3 counts); and Sexual Assault (s. 271).

4Alternatively, the Crown submits that if I am satisfied that Mr. R.K. should be declared a dangerous offender, but I am satisfied that a lesser measure than an indeterminate sentence would adequately protect the public, a determinate sentence of 10 years in custody followed by a 10-year Long Term Supervision Order (“LTSO”) should be imposed.

5In the further alternative, if I find that the Crown has not established that Mr. R.K. is a dangerous offender, the Crown submits that I should find Mr. R.K. to be a long-term offender and should sentence him to 10 years in custody followed by a 10-year LTSO.

6Counsel for Mr. R.K. concedes that the enumerated counts are personal injury offences as defined under s. 752 of the Criminal Code, R.S.C., 1985, c. C-46.¹

7Counsel for Mr. R.K. concedes that Mr. R.K. meets the criteria for a finding that he is a long- term offender under s. 753.1(1).

8The position of counsel for Mr. R.K. is that the Crown has not met its onus of proving beyond a reasonable doubt that Mr. R.K. meets the criteria to be designated a dangerous offender. Alternatively counsel for Mr. R.K. submits that if Mr. R.K. is found to meet the criteria to be designated a dangerous offender, an indeterminate sentence should not be imposed because there is a reasonable expectation that a sentence other than an indeterminate sentence will adequately protect the public. The position of counsel on behalf of Mr. R.K. is that a custodial sentence in the range of 5-7 years is appropriate.

overview of the Issues and conclusions

9The relevant criteria for a designation of dangerous offender are set out in subsections 753(1)(a)(i), 753(1)(a)(ii) and 753(1)(b) of the Criminal Code.²

10The onus is on the Crown to prove beyond a reasonable doubt that Mr. R.K. meets the definition of a dangerous offender.³

11To prove that Mr. R.K. is a dangerous offender pursuant to subsection 753(1)(a)(i), the Crown must prove that he constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence that establishes a pattern of repetitive behavior, of which the offences for which he has been convicted forms a part, showing a failure to restrain his behaviour and a likelihood of causing death or injury or inflicting severe psychological damage on other persons through failure to restrain his behaviour in the future.

12Counsel for Mr. R.K. argues that the Crown failed to prove beyond a reasonable doubt that Mr. R.K. is likely to cause death or injury or to inflict severe psychological damage on other persons through a failure to restrain his behaviour. Counsel argues that the actuarial testing by Dr. Wilkie, the assessing psychiatrist, was flawed and overestimated the risk posed by Mr. R.K. and that, in any event, the actuarial testing, at worst, puts Mr. R.K.’s risk at the moderate level and does not support a finding that he is “likely” to reoffend. Counsel further argues that Dr. Wilkie’s opinion based on the non-actuarial tool and based on her clinical judgment is not reliable because of a demonstrated lack of objectivity and care on the part of Dr. Wilkie in her approach to this assessment.

13I am satisfied beyond a reasonable doubt that Mr. R.K. is likely to cause death or serious injury in the future to an intimate partner as a result of his failure to restrain his behaviour. I find this conclusion to be inescapable based only on Mr. R.K.’s pattern of dominating, degrading and abusing domestic partners and his expressed contempt for those partners. Mr. R.K. committed a brutal physical and sexual assault on his former partner in 2003. While incarcerated after that attack, he wrote her a letter in violation of a court order. During his incarceration he refused all assessment and treatment directed at reducing his risk of family violence or sexual violence with the exception of one programme – the “Deniers” programme. At his parole hearing in 2008 he referred to his actions as “boot fucking” the victim and told the parole board “you cannot stop the inevitable.” When released in 2010 and while subject to a s. 810.2 recognizance Mr. R.K. commenced a relationship with the victim of the predicate offences. He physically, emotionally and sexually abused that victim over the course of almost a year. Even if I rejected all aspects of Dr. Wilkie’s report and testimony I would be satisfied beyond a reasonable doubt of the likelihood that Mr. R.K. would cause death or serious injury to a future intimate partner.

14I have concluded for reasons that I will set out in more detail later in these reasons that there are weaknesses in the evidence of Dr. Wilkie. In summary, those weaknesses are: (1) she relied on some information in the records that was not ultimately proven by the Crown; (2) she made some scoring errors on the actuarial tests; (3) she made some minor errors in the factors she considered on the clinical judgment tool, the Spousal Assault Risk Assessment guide (the “SARA”); (4) she diagnosed Mr. R.K. with antisocial personality disorder which was dependent on an underlying finding of conduct disorder prior to age 15. The support for the conduct disorder was tenuous.

15Recognizing these weaknesses in the evidence of Dr. Wilkie, I nevertheless accept some aspects of her evidence. It is indisputable that Mr. R.K. has antisocial personality traits and that these traits drive aspects of his offending behaviour. It is indisputable that Mr. R.K.’s antisocial personality traits will impact on his amenability to treatment. This conclusion is amply supported by his history. I accept Dr. Wilkie’s opinion that some decline in violent offending can be expected as Mr. R.K. ages, but that variables such as his arrogance and intractable negative attitude towards women will not change with age. I therefore find support for my conclusion on s. 753(1)(a)(i) in the evidence of Dr. Wilkie while recognizing its limitations.

16To prove that Mr. R.K. is a dangerous offender pursuant to subsection 753(1)(a)(ii) the Crown must prove that he constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence that establishes a pattern of persistent aggressive behavior, of which the offences for which he has been convicted form a part, showing a substantial degree of indifference on his part respecting the reasonably foreseeable consequences to other persons of his behavior.

17Counsel for Mr. R.K. argues that Mr. R.K.’s offence pattern alone cannot justify a finding of substantial indifference. She also argues that Mr. R.K.’s conduct was driven at least in part by cocaine use. Counsel argues that Mr. R.K.’s past comments concerning his conduct do not demonstrate indifference because context is lacking.

18Mr. R.K.’s pattern of offending as I described above – a brutal assault of one domestic partner followed by a prolonged period of incarceration, a s. 810.2 recognizance and a further series of assaults on his next domestic partner ‑ support a finding of substantial indifference on the part of Mr. R.K.. His comments concerning the offences also support this conclusion: referring to the first assault as a “boot fucking”; and referring to not really having a criminal record, just “two domestics”. His contempt for his victims is also evidenced in Mr. R.K.’s comments. He referred to the first victim as a “stripper..a nympho” and he referred to the second victim as a “junkie”. When the victim of the predicate offences told him he was hurting her he said, “good – maybe now you’ll learn your lesson.”

19Therefore, I have also concluded for the reasons I will set out in more detail below, that Mr. R.K. meets the criteria to be designated a dangerous offender pursuant to s. 753(1)(a)(ii).

20To establish that Mr. R.K. is a dangerous offender pursuant to subsection 753(1)(b), the Crown must prove that he, by his conduct in any sexual matter including that involved in the commission of the offence for which he has been convicted, has shown a failure to control his sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his sexual impulses.

21I have concluded that the Crown has failed to prove beyond a reasonable doubt that Mr. R.K. meets the criteria under s. 753(1)(b) to be designated a dangerous offender. I accept the opinion of Dr. Wilkie, that Mr. R.K.’s offences were not likely driven by any sexual deviance or paraphilia. His offences include two violent sexual assaults, but these offences appear to have been driven by his contempt for his partners and his desire to dominate and degrade them rather than by a sexual impulse.

22Subsections 753(4) and (4.1)⁴ permit me to impose a determinate sentence or a determinate sentence with a LTSO, rather than an indeterminate sentence, even though the offender is designated a dangerous offender. A sentence other than an indeterminate sentence may only be imposed if there is, on the evidence, a “reasonable expectation” that such a sentence will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

23I have considered whether a sentence other than an indeterminate sentence would reasonably be expected to adequately protect the public.

24Mr. R.K. has never engaged in meaningful assessment and treatment to reduce his risk of reoffending violently. There is no reason to even hope that he would do so in the future. The controls and supervision available in the community are not adequate to protect future intimate partners of Mr. R.K.. Community access necessarily entails access to members of the public, including women. Supervision in the community is not adequate to protect future partners from Mr. R.K..

25I have concluded that an indeterminate sentence must be imposed.

26To summarize, for the reasons that follow, I am satisfied beyond a reasonable doubt that Mr. R.K. meets the criteria in subsections 753(1)(a)(i) and 753(1)(a)(ii) and must therefore be designated to be a dangerous offender. I am not satisfied that he meets the criteria in subsection 753(1)(b). I am further satisfied that there is, on the evidence, no reasonable expectation that a sentence other than an indeterminate sentence will adequately protect the public from the commission of murder or a serious personal injury offence by Mr. R.K.. An indeterminate sentence must therefore be imposed.

27In the reasons that follow I will review in some detail the evidence on this application, my findings on the evidence and my analysis and of the issues that I have identified.

Evidence

Overview

28A two-volume application record was filed by the Crown on the Dangerous Offender application.⁵

29The documents in the Application record include the following:

(1) Mr. R.K.’s Canadian Police Information Centre Record;

(2) Assessment Report prepared by Dr. Treena Wilkie;

(3) Records relating to Mr. R.K.’s convictions in 2005, including the Indictment, Reasons for Judgment, Reasons for Sentence and Victim Impact Statement;

(4) Records from the Ontario Ministry of Community Safety and Correctional Services relating to Mr. R.K.’s time in custody in Provincial correctional facilities;

(5) Records from Correctional Service Canada relating to Mr. R.K.’s time in custody in federal penitentiaries (2006-2010); and

(6) National Parole Board Records (2008-2010).

30The defence filed a volume of material which included a letter from Peter Markwell of the John Howard Society, certificates of courses completed by Mr. R.K. at the Toronto South Detention Centre, the curriculum vitae of Sheri Rousell and an information package on Community Supervision from Correctional Service Canada.

31In addition to the material filed as part of the record, I heard viva voce evidence of two witnesses: Dr. Treena Wilkie, a forensic psychiatrist who was called by the Crown to give expert opinion on Mr. R.K.’s diagnosis, risk and prognosis; and Ms. Sheri Rousell, Associate District Director for the Central Ontario District of Correctional Service Canada who was called by the defence to give evidence on the supervision and treatment of offenders by Correctional Service Canada after release from custody.

32Finally, I have considered the evidence from Mr. R.K.’s trial on the predicate and related offences.

Personal Circumstances and background of the Offender

33The evidence before me of the personal circumstances and background of Mr. R.K. is derived from the Correctional Services records and the report of Dr. Wilkie which contained information provided by Mr. R.K. in a two-hour interview with Dr. Wilkie.

34R.K. is 51 years-old. He was born in […], 1965. His father is 86 years-old and his mother is 79 years-old. He had an older brother who died at age 20 when Mr. R.K. was 7 or 8 years old. He has an older sister from whom he is estranged.

35Mr. R.K. grew up in Toronto and attended school until grade ten when he dropped out of school. There was some confusion on the part of Dr. Wilkie as to the timing of Mr. R.K. leaving school. In her report she states that he worked over the summer after grade nine and did not return to school, choosing to work instead. In a later part of the report she references information from the Toronto Catholic District School Board indicating that Mr. R.K. completed grade ten in the 1979-1980 school year. He failed the first semester of Math and Art, but later got the math credit. His marks in English, French, Geography, Theology and science were in the 50’s and 60’s. His mark in typing was 82%.

36Mr. R.K. reported to Dr. Wilkie that he was truant in grade 7 and 8 and that he was in a physical fight in grade 5 or 6. He also reported that he was above average in school and that school was easy for him. When asked why he left school he said that he was “not sure why”.

37Mr. R.K. later completed high school in Albany, New York in 1997. When asked by Dr. Wilkie why he was in New York State he said he, “had some business there”. The sentencing reasons of Justice Weeks in 2006 indicate that Mr. R.K. was convicted of two counterfeiting charges in the United States 1998. In 2006 Mr. R.K. indicated to correctional officials that he had been convicted of one counterfeiting charge in the United States. He also told correctional officials that he completed his high school while awaiting trial on the counterfeiting charges. The Crown has not proven any U.S. convictions in the proceedings before me. Mr. R.K. told Dr. Wilkie that he did not pursue any further education. In the Correctional Services records it is indicated that Mr. R.K. claimed to have pursued post-secondary courses at a university in New York State.

38After leaving high school Mr. R.K. worked for his brother-in-law and trained to be a mechanic. He left that job after two years. He told Dr. Wilkie that he was ‘probably’ fired from that job, but said that he could not remember why. He worked after that as an apprentice at GM. He reported leaving that position after a couple of years. He next worked at Bell Canada as a crane operator. After the job with Bell, Mr. R.K. worked as a grip in the film industry. Between jobs in the film industry he would collect Employment Insurance or work at cash jobs.

39Mr. R.K. lived with his parents for most of his life. He moved out of his parents’ home in 1988 when he was 23 years-old to live with his girlfriend, but moved back in to his parents’ home when that relationship failed. He has a daughter who was born of that relationship and who is now 25 years-old. He has another daughter who is 13 years-old and who was born of his relationship with S.D., the victim of the offences committed by Mr. R.K. in 2001 and 2003 which I will review later in these reasons. Mr. R.K. lived with S.D. for a period of time. Mr. R.K. was imprisoned from February 2003 when he was arrested for the offences against S.D. until September 2010 when he served his sentence on those offences. Upon his release, he again moved in with his parents until he began effectively living with the victim in the predicate offences, D.P., in early 2012.

40Mr. R.K. does not have contact with his two daughters.

41Mr. R.K.’s parents have been consistently supportive of him. The records, as well as Mr. R.K.’s self-report indicate that his parents have been supportive of him throughout his life. As indicated, he has lived with them except for brief periods of time when he lived with partners or when he has been incarcerated. During his periods of incarceration his parents have maintained contact through regular phone calls and visits. His parents reportedly have a good marriage and there is no history of separations, violence or substance abuse in the home. Mr. R.K.’s father was employed in real estate until around 1972 or 1973. Around the time of Mr. R.K.’s brother’s death, his father stopped work and stayed home to look after Mr. R.K.. Mr. R.K.’s mother worked through her adult life at a factory.

42In describing his parents to Dr. Wilkie he described his father as a “good provider…very loving”. He described his mother as a dominant “alpha who was giving and generous but mentally tough”. He described his older sister as domineering and said that he found this “offensive”. In describing himself to Dr. Wilkie, Mr. R.K. said that he liked himself. He described himself as “definitely a dominant alpha male”. He said that he was confident and physically capable. He said, “I think I can do anything.” He also said that he would be perceived by some as arrogant.

Criminal Antecedents Prior to the Predicate Offences

43Mr. R.K.’s first criminal convictions were entered in 1983. He was convicted of public mischief and assault. He received a sentence of 25 days in intermittent detention and a $250 fine for the mischief and was placed on probation for 18 months on the assault. There is some inconsistency in the record before me with respect to the circumstances of the offences. According to Dr. Wilkie’s report, there is a Community Assessment dated October 6, 2006 that contains an account of the mischief and assault charges by Mr. R.K.’s parents. In this account, they say that Mr. R.K. had driven his motorcycle on a man’s lawn. The man got upset and hit Mr. R.K. with a broom. Mr. R.K. took the broom away and knocked the man down. In his August 7, 2008 hearing before the National Parole Board, Mr. R.K. was asked about the circumstances of these offences. He told the Board that an older neighbour was sweeping grass off the driveway when Mr. R.K. and his girlfriend drove by on Mr. R.K.’s motorcycle. The man swung the broom at them. Mr. R.K. said, “So I turned around and turned around and came back and I hit him – dropped him ‑ dropped him like a sack of shit.” One of the Board members asked if Mr. R.K. punched the man in the face and Mr. R.K. responded, “Right in the face. Knocked him right out.”

44Mr. R.K.’s next conviction was in 2000 when he was convicted of attempt theft under $5,000 and he received a 45-day conditional sentence.

45In November 2005, the Mr. R.K. was found guilty of assault with a weapon, two counts of threatening death, choking to overcome resistance, aggravated assault, assault, attempted murder, aggravated sexual assault and disobeying a court order. The charges of assault with a weapon, two counts of threatening death, choking to overcome resistance, and aggravated assault were conditionally stayed. Convictions were entered on the charges of assault, attempted murder, aggravated sexual assault and disobeying a court order. Mr. R.K. was sentenced to a further 4 years in prison after credit for the equivalent of 7 years’ presentence custody.

46The facts leading to some of the 2005 findings of guilt were summarized in my trial ruling admitting the similar fact evidence as follows:

26The accused began a relationship with the similar act complainant (S.D. D.) in December of 2000. There were three incidents that occurred during the relationship and one shortly after the end of the relationship that the Crown wishes to introduce as similar act evidence.

#1 The July 2001 Incident

27In July of 2001 the similar act complainant and the accused had an argument. The accused had been using drugs during that time period and they argued about his drug use. During the dispute, the accused picked up the similar act complainant by her neck and threw her onto the floor and got on top of her and tried to kiss her. She broke free and went to the bedroom where the accused pushed her onto the bed, climbed on top of her and hit her in the face.

#2 The Labour Day 2001 Incident

28Around Labour Day 2001 the similar act complainant and the accused were planning to go to a cottage. While driving, Mr. R.K. accused her of seeing someone else and suggested that the baby she was carrying was not his. He called the similar act complainant a ‘bitch, a slut and a whore’. She responded by hitting Mr. R.K.. He then punched her in the jaw. They continued on to the cottage. At the cottage the accused was intoxicated. He masturbated and called out his ex-girlfriend’s name. The two argued further. The similar act complainant took the car keys and said she was going to leave. The accused grabbed her, took the keys and dragged her out of the cottage by her arm and then by her ankles. He locked her out of the cottage. He called her a bitch and a whore. She made her way back into the cottage and was again removed by the accused. During the course of the incident the similar act complainant called the police. When he learned that she had called the police, the accused said that she was a “rat” and threatened to kill her and her whole family.

#3 The December 2001 Incident

29In December of 2001 when the similar act complainant and the accused were in the accused’s car, they began to argue about child support for the complainant’s baby. The accused had previously given the similar act complainant an expensive engagement ring. She pretended to swallow the ring. The accused told her that he was going to take her to a biker clubhouse where she would be raped by 30 men. She tried to flee from the car but the accused held her. He began driving at a dangerous speed. He would not let the similar act complainant leave the car. She returned the ring and he drove her to her parents’ home. The length of the confinement was 25 minutes.

#4 The February 22, 2003 Incident

30The similar act complainant had left the accused in August 2002. In February 2003 they had contact. They were together in the apartment of the similar act complainant. The accused observed the similar act complainant deleting messages from her phone. He accused her of hiding things from him and called her a ‘fucking liar and a bitch’. She told the accused to get out of her apartment.

31The accused picked the similar act complainant up by her neck and pushed her against a wall and began to choke her. He then punched her several times in the face. She lost consciousness. When she regained consciousness she was on her back on the kitchen floor. The accused continued to punch her in the face and to choke her with his hands until she again lost consciousness. When she regained consciousness she was standing and the accused was punching her in the face. She lost consciousness again.

32The next time she regained consciousness she was on her back on the kitchen floor with the accused over her, choking her with his hands. He said, ‘Look what you made me do. I’m going to fucking kill you S.D..’ The accused then got a knife and placed it at the throat of the similar act complainant saying that she ‘was a fucking liar and liars deserve to have their tongues cut out’. He tried to put the knife in her mouth and cut her lips. He then hit her head against the floor.

33The accused then dragged her to the bathroom, removed her clothing, entered the shower with her. He washed the blood off of her body and his. He then laid her on the bed, gave her ice and facecloth and told her that ‘he loved her and that he wanted to make love to her’. The similar act complainant told the accused ‘no’ but he proceeded to have non-consensual intercourse with her.

34The accused later drove the similar act complainant to a hospital in Toronto.

47The details of the breach of court order charge are that after Mr. R.K. was arrested for the offences outlined above he was denied bail. His detention order required that he abstain from contacting any witness or person named in the order. The victim was a person named in the order. On March 22, 2003 the victim received a two-page letter from Mr. R.K..

Institutional History

48After the imposition of the four-year sentence Mr. R.K. was sent to the Millhaven assessment unit.

49His risk was assessed and a correctional plan developed with limited participation by Mr. R.K.. The assessment identified areas where intervention and programming was recommended. It was recommended that Mr. R.K. complete the ‘High Intensity Family Violence Program’, the ‘National Sex Offender Program’ and the ‘National Substance Abuse Program’. Although Mr. R.K. declined to participate in any psychiatric, psychological or sex offender assessment, he did complete academic testing. The intake assessment indicates a relatively high level of academic functioning. Mr. R.K. also provided some personal history at the intake interview. He reported that he had been involved in prior common-law relationships and gave some background regarding his relationship with S.D. He told the assessor that S.D. was a stripper and an escort when he met her. He said that she had a drug problem. He explained that he felt that she was constantly lying to him. Mr. R.K. said that he had used cocaine in the past, but that he had not used cocaine for six months preceding the offences against S.D.

50Following his assessment at Millhaven, Mr. R.K. was placed at Warkworth Institution. In 2010 he was transferred to Bath Institution. He presented no real management issues in the federal penitentiary system. Mr. R.K. worked as a tutor while serving his sentence. He was not offered programming because he indicated that he would not participate in any programmes until after his appeal was heard. In a 2008 Correctional Plan Progress Report it is indicated that Mr. R.K. made it clear that he would not, in any event, participate in any type of sex offender programme. However, at one point, Mr. R.K. did agree to participate in the ‘Deniers’ programme. It is not clear why he did not participate in the programme.

51In May 2008, Mr. R.K.'s Correctional Management Team recommended that he be detained until his warrant expiry date as a result of his refusal to participate in any programs that would reduce his risk. Around the same time, Mr. R.K. applied for day parole and full parole.

52On August 7, 2008 a parole hearing was held. Mr. R.K. attended the hearing and participated in it. As noted earlier in these reasons, Mr. R.K. was asked about the first convictions on his record and responded that he had “dropped [the victim] like a sack of shit”. The Board member then asked Mr. R.K., “So that’s how you get started, eh? Or did you get started before that and this is just the first conviction?” Mr. R.K. responded, “You mean practice”. There is an unintelligible response by the Board member and then Mr. R.K. says, “…are you talkin’ the prelude to S.D.’s boot fuckin’?” Mr. R.K. was cautioned to be respectful. The hearing was concluded. As Mr. R.K. left the room, he gave the Board ‘the finger’ and said, “You can’t stop the inevitable. Remember that. You cannot stop the inevitable.”

53Full parole and day parole were denied.

54In October of 2008 Mr. R.K. was assessed for placement in the High Intensity Family Violence program. He indicated that he would not discuss anything to do with his past issues with domestic violence. As a result, he was not given a place in the program as he would have been unable to meet any of the expectations of the program.

55In late 2008 Mr. R.K.'s Correctional Management Team again prepared a report recommending that Mr. R.K. be detained until his warrant expiry date. A parole hearing was held on February 26, 2009.

56At his February 2009 parole hearing Mr. R.K. told the Parole Board members that he wanted to stay in prison until his warrant expiry date. When asked why, he said “’Cuz I don’t want to be answering to the Parole Board when I leave this case.” A Board member asked, “You mean you don’t want to have conditions in the community if you were to be released earlier? Is that what you mean?” Mr. R.K. replied, “Correct. Well the way you’re saying is that I’m a risk to re-offend against my wife prior to my statutory release so what happens at my warrant? Does that change between my statutory release and my warrant expiry?”

57Mr. R.K. was asked if his thoughts had changed. He said, “You’re not privy to that. You’re not privy to my agenda…That’s why I’m here to warrant expiry so that you can’t be privy to my agenda.”

58When he was questioned about not participating in programmes, Mr. K. said that he had not been offered programmes. When asked if he would participate in programmes if offered he said, “The only reason you take a programme is to get parole. I’m not getting parole so I don’t take the programme.”

59Mr. R.K. was questioned about his conduct towards female correctional officers during his pre-trial detention. It was reported in the provincial correctional records that while detained awaiting trial in 2003 Mr. R.K. exposed himself and walked toward a female correctional officer making thrusting motions with his hips. It was also reported that in October 2003 he called a female correctional officer a “fucking bitch”. The records further refer to an incident in May 2004 when he was heard to tell other inmates not to help female correctional officers separate a fight because “the fucking cunts get what they deserve”. Mr. R.K. denied any wrongdoing at the time of the reports and the misconduct findings.

60When asked by the Parole Board in 2009 about exposing himself, he said that he had his pants down to go into the shower and that his conduct was not inappropriate. When asked about making comments about the female officers he said, “Sticks and stones will break my bones but names will never hurt me, right?” The Board member asked, “Calling them names, that’s okay?” Mr. R.K. responded, “To me it is sure. If you deserve to be degraded, I’ll degrade you.” After further discussion the board member said, “Alright so there were many occasions where you have been counselled and many occasions where you were being inappropriate with females and every time it was because they had been inappropriate with you?” Mr. R.K. said, “Correct.” The Board member then asked, “Okay. And you feel justified in behaving like this because you say…”. And Mr. R.K. said, “I feel justified myself in my own ‑ my own world – like my own morality yes.”

61Mr. R.K. was ordered detained until warrant expiry. He was held in prison until September 26th, 2010.

S. 810.2

62On July 15, 2010 an information was sworn seeking an order pursuant to s. 810.2 requiring Mr. R.K. to enter into a recognizance to keep the peace and abide by certain conditions. On May 3, 2011 Mr. R.K. was ordered to enter into a s. 810.2 recognizance to keep the peace and to abide by conditions. The conditions included a condition that he enroll in and attend treatment programmes, abstain from drugs and alcohol, reside with his parents, notify the officer in charge of any change in address, notify the officer in charge of any relationship with a female person and abide by a curfew.

63The treatment condition of the recognizance required that Mr. R.K., “Enroll in and attend treatment programs for Family Violence Intervention, Sex Offender Management, Anger and Emotions Management, Violence Prevention Management, Psychological Risk Assessment or Treatment, and Alcohol and Substance Abuse and provide the officer in charge of the Toronto Police Division with proof in writing of your enrollment in your first chosen program within 30 days of the date of your release under the terms of this recognizance and thereafter within 30 days of beginning each successive program.”

64The Application Record filed by Mr. R.K. contains a letter from the John Howard Society of Toronto indicating that Mr. R.K. came into the John Howard Society office on June 21, 2011. He was offered an array of services which he declined. He did take some employment referrals and agency information. In October of 2011 Mr. R.K. contacted the John Howard Society and began the Structured Relapse Prevention group which consisted of twelve two-hour sessions and covered topics such as setting goals, anger management, harm reduction and health and wellness. Mr. R.K. successfully completed this program in December of 2011.

Predicate and Related Offences

65Mr. R.K. became involved in a domestic relationship with the victim, D.P., in December 2011. Mr. R.K. began sleeping at the victim’s apartment, effectively living with her, within months of the commencement of the relationship. Mr. R.K. did not report the relationship to the officer named in his s. 810.2 recognizance. He did not report his change of address.

66Mr. R.K. became jealous and suspicious of the victim’s contact with other men very early in the relationship. The victim said that in the summer of 2012 she sent her daughter away from the home to live with her father because of the conflict between the victim and Mr. R.K.. Her teenage son remained in the home. The predicate and related offences which are the subject of this hearing occurred between March 2012 and January 2013. In January 2013 the victim left Mr. R.K. and went to a shelter. Throughout the latter part of the relationship, both Mr. R.K. and the victim used cocaine. Both the victim and Mr. R.K. consumed alcohol regularly and, at times, heavily.

67The offences for which I must sentence Mr. R.K. all occurred within the context of the domestic relationship with the victim, D.P.

68I will set out briefly the facts underlying the convictions on the serious personal injury offences and the other offences of which Mr. R.K. was convicted.

Count 1- Mischief

69Sometime around August 2012, the victim asked Mr. R.K. to give her his keys to her apartment. He refused to do so. She then had the locks changed. Mr. R.K. came to the door of the apartment and demanded that the victim’s son let him in. The victim returned home when her son called her. Mr. R.K. continued to demand entry, but the victim refused to let him into the apartment. Mr. R.K. then forced his way into the apartment by breaking the chain on the door. In doing this he damaged the chain, the drywall behind the door and a picture frame that was behind the door.

Count 2- Forcible Confinement

70In March 2012, the victim and Mr. R.K. went to a restaurant. They consumed a large amount of alcohol. They argued and the victim left the restaurant and went to sit in Mr. R.K.’s car. Mr. R.K. came to the car and yelled and swore at the victim to get out of the car. She refused to get out. Mr. R.K. then drove off. The victim felt that Mr. R.K.’s driving was reckless and asked him to slow down. When he refused to do so, she tried to leave the car when it slowed or stopped for stop signs or traffic lights. When the victim tried to leave the car, Mr. R.K. grabbed her arm. He also grabbed her bag and her cell phone. He told her that it was not a good idea to try to leave. Mr. R.K. drove to the home of the victim’s ex-fiancé’s mother. Mr. R.K. honked the horn. The victim left the car and began walking away. Mr. R.K. followed her and asked her to get in the car to talk. She asked if he was going to drive her home and he said that he would. Instead, he drove around for hours.

Count 3- Assault with a Weapon

71In June of 2012 the victim told Mr. R.K. that her ex-fiancé wanted to see her again. That night, she woke up to find that Mr. R.K. had wrapped the cord of her iPod around her neck. He was saying things like: “Don't fuck with me. You're not going to be with him and if you do, this is what it will feel like to take your last breath. You chose me. You'll die with me or you'll get out of my country.” (D.P. was American). Mr. R.K. pulled the cord tight and then released it. Around the same time – in June 2012 ‑ Mr. R.K. had looked at the victim’s phone and asked the victim if she had anything to tell him. She said “no”. Mr. R.K. said that she was a fucking liar, that she had a message from David (her ex-fiancé) and was not smart enough to delete it. He grabbed her by the neck and threw her against the wall. He called her a fucking slut, a fucking liar. He said she would never be with David. She did not report this incident because Mr. R.K. had previously said that he would throw acid on her or set her on fire. He said that he was smarter and knew a lot of people. He said that he could be methodical.

Count 4 – Assault with a Weapon; Count 15- Sexual Assault; and, Count 16 - Assault

72In September 2012, the victim and Mr. R.K. attended a party and both consumed alcohol and cocaine. They later had an argument about David. Mr. R.K. picked her up and threw her against the wall with his hands on her neck. She could not breathe. Her feet were not on the ground. Mr. R.K. told her to ‘stop fucking with him’ and that if he finds out she is with David she would have consequences to pay. He would hurt her. She would pay for all the things S.D. took from him and did to him. This took about 35 seconds. He then threw her on the bed and got on top of her. He put a pillow over her face and said, “How does that feel?” He also said that women are only good for one thing. They are sluts and whores. He said that the victim was a ‘trash magnet’. When he took off the pillow, D.P. said ‘why not finish it?’ Mr. R.K. said, “That’s too easy. I’m too smart for that. They’d know it was me.” Mr. R.K. dragged her by the hair on the floor and put her back on the bed and said to her “I’m just going to fuck you.” Mr. R.K. then had intercourse with her.

Count 5 – Uttering a Threat to Cause Death; and, Count 8- Uttering a Threat to Cause Bodily Harm

73Between July 2012 and the time that the victim left the home in January 2013, Mr. R.K. made threats against her. He said that there would be consequences if she saw her ex-fiancé; that he would hurt her; she would pay for all the things S.D. took from him and did to him. As set out above, in relation to Count 3, Mr. R.K. also told the victim that he would throw acid on her or set her on fire.

Count 7 – Assault with a Weapon and Count 9 ‑ Threaten Death

74Sometime in August, Mr. R.K. put the victim’s cellphone charger around her neck and pulled it tight. He said, "This is what your last breath will feel like. Don't move, it will be harder if you do. Stop fucking with me. There will be consequences if you don't."

Count 10 - Assault

75In July of 2012 Mr. R.K. and the victim were in bed together. The victim was trying to sleep. Mr. R.K. repeatedly pinched the victim to keep her awake. The pinching caused bruising.

Count 11- Mischief

76In October 2012 Mr. R.K. cut pieces out of the victim’s mattress.

Count 12- Assault Causing Bodily Harm

77On October 31, 2012, Mr. R.K. was angry and jealous because the victim had been out with friends. When she returned, Mr. R.K. accused her of infidelity, put his hands around her neck and threw her against the wall forcefully while holding her neck. He then threw her on the bed. His elbow hit her eye. She bit her lip and his nail scratched her nose. She bled from the cut from his nail. Mr. R.K. stopped when he appeared to see that she was bleeding.

Count 14- Uttering a Threat to Cause Bodily Harm

78Sometime between October 1 and November 30, 2012 Mr. R.K. held onto the victim and leaned her over the railing of the balcony of their apartment. He told her he would throw her over, but it was not a good idea because she would live.

Section 810.2 Recognizance

79Mr. R.K. was also found guilty of breaching four conditions of his s. 810.2 peace bond: (1) to reside with his parents; (2) to abstain from alcohol and drugs; (3) to report any relationship with a female person to the police; and (4) to keep the peace and be of good behaviour.

Programmes completed since the predicate offences

80Mr. R.K. was arrested and detained in early 2013. He has been incarcerated since that time in detention centers in the Toronto area. There are very few programmes offered at the detention centers. Since September 2015, Mr. R.K. has completed 11 one-hour educational sessions at the jail covering topics that included: anger management, substance use, changing habits, thoughts to action, supportive relationships and goal setting.

Assessment Report and testimony of Dr. Treena Wilkie

Overview

81On October 14, 2014 I ordered an assessment of Mr. R.K. pursuant to s. 752.1(1) of the Criminal Code. Dr. Treena Wilkie conducted the assessment and her report, dated January 30, 2015, was filed with the Court. Dr. Wilkie testified at the hearing. Dr. Wilkie is an experienced and highly qualified forensic psychiatrist.

82Dr. Wilkie, in her report and in her testimony, set out the materials upon which she relied to form her opinion. These materials included: (1) a report authored by Dr. Lisa Ramshaw dated February 3, 2006; (2) occurrence reports for offences for which Mr. R.K. was not convicted; and (3) incident reports relating to an alleged misconduct on the part of Mr. R.K. while in the penitentiary in 2010. These materials did not form part of the Record before me and were agreed to be inadmissible. Dr. Wilkie testified that her overall assessment of Mr. R.K. remained unchanged in the absence of these documents.

83Mr. R.K. was brought to the Centre for Addiction and Mental Health to be interviewed for the assessment on three occasions. On the first occasion, Mr. R.K. participated in the interview and answered questions. There was a resident present for the first interview. The interview lasted about two hours. Mr. R.K. was handcuffed during the interview. On the second occasion, Mr. R.K. refused to meet with Dr. Wilkie unless the resident was again present. After the resident arrived, Mr. R.K. said that he would only participate if his handcuffs were removed. The escorting officers would not remove the handcuffs. Mr. R.K. was returned to the detention center without participating in an interview. On the third occasion, Mr. R.K. said that he would only participate if the interview was audio or video and audio recorded. Dr. Wilkie refused this request. She asked whether Mr. R.K. would participate in psychological testing and Mr. R.K. said that he wanted to seek further advice. He was again returned to the detention center without participating. Dr. Wilkie did not ask Mr. R.K. again about participating in psychological testing.

84Dr. Wilkie testified that she has, in the past, audio and video recorded interviews. She testified that there are costs and benefits to recording. The benefit is a verbatim record. Some potential costs were identified by Dr. Wilkie. The recording may distract the interviewee and detract from any rapport.

85Dr. Wilkie also testified that given Mr. R.K.’s refusal to participate in the second interview, his request for a recording appeared to her to show a disinclination to participate.

86Based on the material provided to her and her interview with Mr. R.K., Dr. Wilkie formed an opinion about Mr. R.K.’s diagnosis, his level of risk and his prognosis.

Diagnosis

87Dr. Wilkie’s opinion was that Mr. R.K. suffered from Antisocial Personality Disorder and Cocaine Use Disorder, moderate, in sustained remission in a controlled environment.

Antisocial Personality Disorder

88Dr. Wilkie indicated in her report that conduct disordered behaviour prior to the age of 15 is a necessary precursor to a diagnosis of antisocial personality disorder. She agreed in cross-examination that a diagnosis of conduct disorder is a necessary precondition to a diagnosis of antisocial personality disorder, according to Diagnostic and Statistical Manual of Mental Disorders, fifth edition (DSM-5) criteria. Dr. Wilkie found that there was evidence of a diagnosis of conduct disorder on the basis of a history of truancy, stealing, problems with authority and vandalism from an early age. In cross-examination, Dr. Wilkie conceded that she had no information as to the date of the shoplifting behaviour reported by Mr. R.K.. Dr. Wilkie agreed that Mr. R.K., in describing his involvement in vandalism, indicated that he engaged in this conduct in high school. Dr. Wilkie testified that she assumed the normal trajectory for high school and was of the view that Mr. R.K. left high school in grade 10. She therefore concluded that the vandalism occurred before age 15. In another part of the reports it indicates that Mr. R.K. completed the 1979/1980 school year. Given his birthday, Mr. R.K. would have turned 15 six months before leaving high school. It is possible that the vandalism post-dated his 15th birthday by up to six months. Dr. Wilkie relied on Mr. R.K.’s indication that he attended restricted movies without the permission of his parents as evidence of a problem with authority. She also relied on Mr. R.K.’s self-report of problems with authorities and a tendency to ‘bend the rules’.

89Dr. Wilkie agreed that in order to diagnose a conduct disorder, the index behaviours must cause significant impairment in functioning. Dr. Wilkie testified that she relied on Mr. R.K.’s account of leaving school in grade 10 to conclude that the behaviours caused a significant impairment in his functioning. The records show that Mr. R.K. left school after grade 10 and began work with his brother-in-law. He was consistently employed for a period of time after leaving school. Dr. Wilkie said, in cross-examination, that leaving school was evidence of “veering off the normative occupational path”. She did not change her opinion that conduct disorder was made out.

90Dr. Wilkie’s diagnosis of Antisocial Personality Disorder was, in my view, undermined by the uncertain foundation for the conclusion that Mr. R.K. had a Conduct Disorder before age 15. There is uncertainty as to Mr. R.K.’s age at the time that he engaged in shoplifting and vandalism. There does not appear to be reliable information to support the conclusion that the identified behaviours caused a significant impairment in functioning.

91Dr. Wilkie indicated that the essential feature of antisocial personality disorder, according to the DSM-5, is a pervasive pattern of disregard for and violation of the rights of others occurring from the age of 15 and is indicated by three or more enumerated behaviours. Of those behaviours, she was of the opinion that the following were present in Mr. R.K.’s history: (1) a failure to conform to social norms with respect to lawful behaviours; (2) irritability and aggressiveness; (3) reckless disregard for the safety of self or others; and (4) a lack of remorse as indicated by being indifferent to or rationalizing having hurt, mistreated, or stolen from another. Dr. Wilkie testified that if Mr. R.K. did not meet the criteria for a conduct disorder, she would say that he had antisocial traits rather than a diagnosis of Antisocial Personality Disorder.

Cocaine Use Disorder

92Dr. Wilkie concluded that Mr. R.K. suffered from Cocaine Use Disorder based on his history of regular and problematic cocaine use. She noted that Mr. R.K. had experienced paranoia while intoxicated.

93Dr. Wilkie’s report indicates that one possible confound in the diagnosis of Antisocial Personality Disorder in Mr. R.K.’s case is the presence of a substance use disorder. Behaviour undertaken while under the influence of, withdrawing from, or attempting to obtain a substance may be antisocial, but not driven purely by personality dysfunction. Dr. Wilkie was of the view that Mr. R.K. had evidenced antisocial attitudes and behaviour both during times of substance misuse as well as times of abstinence from use of substances. In the CSC records, Mr. R.K. reported having abstained from cocaine use for six months prior to the attack on S.D. At the time of his outbursts at his parole hearings Mr. R.K. was not using cocaine.

Paraphilia

94Dr. Wilkie considered Mr. R.K.’s sexual offenses and concluded that it was her view that there was insufficient evidence of a paraphilia. In her testimony, she also expressed the view that Mr. R.K.’s sexual offending is not driven by deviance or sexual paraphilia.

Risk Assessment

95Dr. Wilkie performed a risk assessment of Mr. R.K. using four actuarial tools: the PCL-R, the VRAG, the STATIC99R and the Static 2002. Dr. Wilkie also rated the risk of Mr. R.K. on a tool known as the “SARA”. The SARA is not an actuarial tool, but a clinical judgment tool designed to assess factors relevant to domestic violence. The test relies on a checklist of factors relevant to risk, but involves no objective scoring of those factors, relying instead on the clinician’s subjective judgment of the level of risk based on those factors.

96Dr. Wilkie agreed that actuarial tests are the best predictors of future risk and are superior to clinical opinion or structured judgment tools such as the SARA.

97Dr. Wilkie also agreed that there are limitations in the applicability of the risk assessment tools. Recidivism rates have declined since the tools were developed and therefore the tools can show a slight overestimate of risk. Base rates can differ as between age groups within the groups of offenders.

PCL-R

98The PCL-R or Psychopathy Checklist- Revised was designed by Dr. Robert Hare and defines and measures the extent to which an individual resembles the prototypical psychopath. There are 20 items which may be scored 0, 1 or 2. Dr. Hare defines psychopathy diagnostically as a score of 30 or greater. Dr. Wilkie indicates that others have shown that a significant risk of criminality begins when an individual has a score in the mid-twenties or greater. Dr. Wilkie scored Mr. R.K. at 24.2 (with one item omitted). She opined that this score was moderately predictive of future general and violent recidivism. Dr. Wilkie conceded in cross-examination that the score for Mr. R.K. on the item ‘many short term marital relationships’ should have been a 1 rather than a 2. Dr. Wilkie scored Mr. R.K. at ‘1’ for the item ‘Parasitic relationships’. Dr. Wilkie relied on a police occurrence of an incident that had not been pursued to justify the score on this item. Dr. Wilkie also scored the item ‘sexual promiscuity’ as partially met because of Mr. R.K.’s convictions for sexual assault.

99While Dr. Wilkie did not concede that she over-scored Mr. R.K. on any of the PCL-R items other than ‘many short term marital relationships’ I find that there was an inadequate basis, on the evidence before me, to conclude that Mr. R.K. was involved in parasitic relationships or that he was sexually promiscuous. It would not be appropriate for the Court to undertake a ‘rescoring’ of this specialized tool. In light of the difficulties identified however, I give no weight to the opinion that Mr. R.K.’s PCL-R score was predictive of a moderate risk of future general or violent recidivism.

VRAG

100The VRAG is a tool that assesses risk of violent recidivism. One item on the VRAG is whether the individual meets the DSM-III criteria for any personality disorder. Dr. Wilkie scored Mr. R.K. at ‘3’ on this item because of her diagnosis of Antisocial Personality Disorder pursuant to the DSM-5. Mr. R.K.’s overall score on the VRAG was ‘0’ or ‘Bin 5’, the fifth of nine ascending categories of risk on the instrument. This puts him in the 50th percentile compared to the developmental sample of offenders. Dr. Wilkie indicated in her report that taking into account the estimated measure of error, Mr. R.K.’s actual score would be expected to fall within one risk category above or below Bin 5. Dr. Wilkie’s opinion was that the score places him in a moderate risk category for violent re-offending.

101Without the score of ‘3’ on the item for meeting the criteria for personality disorder, Mr. R.K.’s VRAG score would change. Counsel for Mr. R.K. invites me to re-score the test at a ‘-3’ and to conclude therefore that he fell within ‘Bin 4’ or the 40th percentile of offenders and presented a moderate risk of violent reoffending. I do not accept this argument. The application and scoring of these actuarial tools requires training which I lack. Dr. Wilkie did not endorse the conclusion that counsel invites me to draw. I cannot infer that the score would be reduced because there are other possible conclusions, including that a trained professional would conclude that there was inadequate information to score Mr. R.K. at all. I note that Dr. Wilkie, recognizing the estimated measure of error, already placed Mr. R.K. in the moderate risk category – one Bin below his scored placement. I accept that the absence of a supportable diagnosis of antisocial personality disorder would necessarily impact on the VRAG score. This was conceded by Dr. Wilkie. I cannot however, quantify the change. I therefore give little weight to the VRAG test results as scored.

STATIC -99-R/STATIC -2002

102The STATIC-99-R and the more recent version, the STATIC-2002 are tools designed to identify individuals at risk for future sex offending. Dr. Wilkie’s report and testimony was that the instruments have more limited reliability and validity. Mr. R.K. was scored by Dr. Wilkie as a ‘4’ on the STATIC-99-R, placing him in a moderate high risk category. His score on the STATIC-2002 was also in the moderate high risk category.

103Counsel for Mr. R.K. argues that the score on this test should also be adjusted. Dr. Wilkie relied on a conviction in the United States for counterfeiting when she scored Mr. R.K.. This conviction is referred to in the reasons of Justice Weekes, sentencing Mr. R.K. for the offences against S.D. It is also referred to in the records from Correctional Services. Counsel points out that the conviction has not been proven or admitted in these proceedings. The failure of the Crown to prove this conviction reduces the weight that I can give to the test results. It does not justify a ‘re-scoring’ of the actuarial test, nor does it reflect adversely on the reliability of the evidence of Dr. Wilkie.

SARA (Spousal Assault Risk Assessment guide)

104The Spousal Assault Risk Assessment guide is a structured professional judgment tool that includes risk factors that are empirically related to future intimate partner or family violence. The SARA is comprised of 20 risk factors that are related to general violence and criminality and specifically, to family violence. Of the 20 risk factors, Dr. Wilkie identified the following as present for Mr. R.K.: past assault of strangers or acquaintances; past violation of conditional release or community supervision; recent relationship problems; recent substance abuse/dependence; personality disorder with anger; impulsivity or behavioural instability; past physical assault; past sexual assault/sexual jealousy; past use of weapons and/or credible threats of death; past violations of no contact orders; extreme minimization or denial of spousal assault; attitudes that support or condone spousal assault; severe and/or sexual assault; use of weapons and/or credible threats of death; and violation of a no contact order.

105Dr. Wilkie viewed other risk factors as partially present: recent employment problems and recent escalation in the frequency of or severity of assault.

106Dr. Wilkie rated the risk of Mr. R.K. reoffending violently against a partner as high and his risk of general violent reoffending as moderate.

107Counsel for Mr. R.K. argues that there are several reasons to reject Dr. Wilkie’s assessment on the SARA:

(1) The problems described as recent (relationship problems, substance abuse, escalation) were in fact dated, having existed in his relationship with the victim in the offences which ended with the charges and his incarceration two years earlier;

(2) Dr.Wilkie judged the risk factor of recent employment problems to be partially met although there was no evidence of employment problems;

(3) There was no evidence of a recent violation of a no contact order but Dr. Wilkie found this factor to be met;

(4) Dr. Wilkie found, using the test, that Mr. R.K. was a moderate risk to violently re-offend outside the domestic context, a finding at odds with Mr. R.K.’s criminal history which is essentially limited to domestic violence aside from a very dated assault against a stranger;

108Overall, counsel for Mr. R.K. invites me to doubt the objectivity and care that Dr. Wilkie brought to the overall assessment of Mr. R.K. and to reject her opinion on this tool because it relies on Dr. Wilkie’s subjective clinical judgment.

109I do not agree that Dr. Wilkie erred in considering Mr. R.K.’s relationship with the victim as ‘recent’ for the purposes of the test. The relationship was the most recent relationship in which Mr. R.K. was involved prior to being prevented from entering a relationship as a result of his incarceration. I agree that Dr. Wilkie could not point to any employment problems and the absence of a foundation for this factor undermines her opinion on this instrument somewhat. Mr. R.K. has not violated a recent no contact order and Dr. Wilkie conceded that she should not have found this factor to be met. This also somehat weakens her opinion. In terms of her finding that Mr. R.K. was a moderate risk to reoffend outside the domestic context, the assessment of a moderate risk outside the domestic context is not a reason to doubt the objectivity of Dr. Wilkie. Dr. Wilkie clearly identified the predominant risk in this case as a risk to future domestic partners. That is the focus of the application and the hearing.

110I recognize that the SARA is not an actuarial tool and that Dr. Wilkie testified that actuarial tools are the best predictors of future risk. She testified that actuarial tools are superior to clinical opinion or structured judgment tools such as the SARA.

Prognosis/Treatment

111Overall, Dr. Wilkie’s opinion was that Mr. R.K. presents a moderate risk for general and violent re-offence, a moderate high risk of sexual re-offence and a high risk of violent behaviour in an intimate relationship. Dr. Wilkie was careful to qualify her opinion on the issue of the possibility of eventual control of Mr. R.K. in the community. She said in her report that the concept of control of risk in the community is not particularly well-defined from a psychiatric perspective and would appear to hinge on whether the individual could be treated and whether the treatment could allow his risk to be managed in the community.

112Dr. Wilkie testified that individuals with personality disorders are less amenable to treatment than other offenders. Substance abusing offenders with concurrent antisocial personality disorder do not benefit from substance abuse treatment in the same manner as offenders without a diagnosis of Antisocial Personality Disorder. In Mr. R.K.’s case, Dr. Wilkie formed the opinion that Mr. R.K.’s prognosis for successful treatment was average compared with other offenders based on his diagnosis of Antisocial Personality Disorder and substance use disorder.

113Dr. Wilkie was questioned as to the impact on this opinion if her diagnosis of Antisocial Personality Disorder was not present as a result of the questionable conclusion that there was a conduct disorder before age 15. Dr. Wilkie testified that her diagnosis would change, but her overall risk judgment would not change.

114Dr. Wilkie agreed that it would be expected that Mr. R.K.’s risk of violence would decrease with age. She said that there is a general decrease in violent offending after the age of 40 to 45. She also stated that variables that would not be expected to change with age were his interpersonal/affective antisocial traits, including his prominent negative attitudes towards women, grandiosity and lack of empathy.

115Dr. Wilkie identified the absence of any evidence of motivation for treatment and Mr. R.K.’s past rejection of treatment and breach of court orders as negatively impacting on Mr. R.K.’s prognosis for successful treatment and management in the community. She identified his potential for employment and the support of his parents as positive factors.

116Overall, Dr. Wilkie’s opinion was that there would be significant challenges from a psychiatric perspective to managing Mr. R.K.’s risk in the community.

Sheri Rousell

117Counsel for Mr. R.K. called Sheri Rousell as a witness. Ms. Rousell is the Associate District Director for the central Ontario district of Correctional Service Canada. She has been employed at Correctional Services in different capacities since 1995.

118Ms. Rousell described the availability in the federal penitentiary system of the Integrated Correctional Programme Model (“ICPM”). The programme identifies specific problems that need to be addressed for individual offenders and offers modules to address those problems. There are modules on issues such as family violence, sex offending and substance abuse. The programmes use a cognitive behaviour approach and work towards reduction of risk by the time of release. There are different levels of intensity in the programmes, depending on the identified risk presented by the offender. High intensity programming involves 100 two-hour sessions and medium intensity programming involves 50 two-hour sessions.

119Ms. Rousell testified that generally anyone who wants the programming will get it. She also testified that an offender could refuse to participate in the programmes and could refuse to be assessed for the programmes.

120Ms. Rousell testified that she had never seen a person subject to a Long-Term Supervision Order released to anything but a residential placement. A person subject to an LTSO in Ontario would be released to one of two community correctional centres (“CCCs”). Some CCC’s are run by agencies other than CSC but generally only CSC residences accept offenders subject to LTSO’s. The offender would be subject to conditions imposed by the Parole Board. Conditions can include treatment, reporting relationships, abstention from alcohol and drugs, non-contact with victims and requirements to stay within a geographic area. Once placed in the CCC, the offender would be subject not only to the conditions imposed by the Parole Board, but would also be subject to the rules of the CCC. The CCC is staffed 24 hours a day. Offenders are subject to curfews, random searches and random checks on their whereabouts when outside the residence. Failure to abide by conditions imposed by the Parole Board would constitute a breach of the LTSO and the residence would issue a warrant of suspension and apprehension. The offender can be held for up to 90 days pursuant to the warrant and suspension. CSC would also notify the police who would decide whether to charge the offender with the breach. Breach of house rules is not a breach that leads to a charge or suspension.

121Ms. Rousell agreed that the treatment provided in the CCC is designed to follow-up on more intensive treatment completed by the offender in the penitentiary prior to release. She agreed that the staff did not follow individual offenders to check compliance with conditions throughout the day when they are in the community although they may do random checks and routinely require regular telephone or in-person ‘check-ins’.

Statement of R.K.

122Mr. R.K. did not testify at the hearing, but he did make a statement when asked if he wished to do so pursuant to s. 726 of the Criminal Code. Mr. R.K. spoke of the support provided to him by his parents throughout his life. He described the successful relationships that he had experienced before he began abusing cocaine. He described operating in a drug induced haze and walking away from positive influences. He said that he understood it was now mandatory that he accept treatment.

Analysis

1. Has the Crown proven beyond a reasonable doubt that Mr. R.K. meets the criteria in ss.753(a)(i), 753(1)(a)(ii) or 753(1)(b) to be designated a Dangerous Offender?

General Principles

123Dangerous offender proceedings are part of sentencing and guided by the fundamental purpose and principles of sentencing. The fundamental principle in sentencing is that the sentence must be proportionate to the gravity of the offences and the degree of responsibility of the offender. I must consider the sentencing objectives of denunciation, deterrence, separation of the offender from the society if necessary, rehabilitation and the promotion of a sense of responsibility in the offender. I must consider aggravating and mitigating factors. Particularly relevant in this case are the following aggravating factors: that the offences were committed against a domestic partner and that they were committed while Mr. R.K. was subject to a s. 810.2 recognizance.

124Although the dangerous offender provisions in the Criminal Code were amended in 2008, the purpose of the provisions has not changed. The dominant purpose of the dangerous offender provisions is to “protect the public when the past conduct of the criminal demonstrates a propensity for crimes of violence against the person, and there is a real and present danger to life or limb.”⁶ The provisions are designed to apply to “a very small group of offenders whose personal characteristics and particular circumstances militate strenuously in favour of preventing incarceration.”⁷

125The general purpose and principles of sentencing and the purpose of the dangerous offender and long-term offender provisions must guide the application of the provisions to the circumstances of this offender and these offences.

126The onus is on the Crown to prove beyond a reasonable doubt that Mr. R.K. meets one or more of the definitions of a dangerous offender.⁸

Subsection 753(1)(a)(i)

127As I indicated at the outset of these reasons, to prove that Mr. R.K. is a dangerous offender pursuant to subsection 753(1)(a)(i), the Crown must prove that he constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence that establishes a pattern of repetitive behavior, of which the offences for which he has been convicted forms a part, showing a failure to restrain his behaviour and a likelihood of causing death or injury or inflicting severe psychological damage on other persons through failure to restrain his behaviour in the future.

“Pattern of Behaviour”

128To establish a pattern of repetitive behaviour under subsection 753(1)(a)(i) the Crown must prove that there are significant similarities among the acts of violence committed by the offender. The Crown need not prove that the acts are identical. The inquiry must examine the nature and context of the acts committed. A lengthy history is not required.⁹

129In this case, I find that the Crown has established a pattern of repetitive behaviour on the part of Mr. R.K.. There are significant similarities in the behaviour of Mr. R.K. towards S.D. and towards D.P. Both were domestic partners. Mr. R.K.’s conduct with respect to each victim progressed from jealousy, threats and minor assaults to forcible confinement and more serious aggression, including sexual violence. Mr. R.K. denigrated both victims and blamed them for provoking the threats and assaults.

130The particular circumstances of the assaults were extremely similar. Mr. R.K. accused both women of infidelity, he choked both victims and he sexually assaulted both victims after seriously assaulting them. Mr. R.K. called S.D. a “bitch, a slut and a whore”. He told D.P. that all women are ‘sluts and whores’. Mr. R.K. told D.P. that he would make her “pay for what [S.D.] did.”

131While the final incident of violence against S.D. was extreme and went beyond the level of violence in the predicate offences, the other offences are extremely similar in terms of the nature of the offences and the degree of violence.

“Failure to restrain his behaviour”

132The pattern of repetitive behaviour under s. 753(1)(a)(i) must show a failure to restrain his behaviour. The circumstances of the offences against S.D. and the circumstances of the predicate offences clearly show a failure on the part of Mr. R.K. to restrain his behaviour towards his domestic partners.

133Mr. R.K. failed to restrain his behaviour even after a significant term of imprisonment and while under the supervision of a s. 810.2 order.

134I am satisfied beyond a reasonable doubt that the evidence establishes a pattern of repetitive behaviour on the part of Mr. R.K. in the offences against S.D. and D.P. that shows a failure to restrain his behaviour.

“Likelihood of death or injury to other persons or inflicting severe psychological damage on other persons through a failure to restrain his behaviour”

135The Crown is required to prove beyond a reasonable doubt that it is likely that Mr. R.K. would cause death or serious physical or psychological damage to a person through a failure in the future to restrain his behaviour.

136The Crown need not prove beyond a reasonable doubt that Mr. R.K. will re-offend violently, but the Crown must prove beyond a reasonable doubt that it is likely that he will do so.

137As stated by Code J. in R. v. Gibson,¹⁰ “Predicting future conduct is notoriously difficult and the exact meaning of the s. 753 ‘likelihood’ test is subtle.” In R. v. Johnson¹¹ Dambrot J. stated, “I see no basis to give the word ‘likelihood’ other than its plain meaning.” Earlier in the same judgment he said, “Likelihood is a word commonly used in the law, and simply means more probable than not.”¹²

138It is in the determination of likelihood of re-offence that the opinions of expert are most often utilized. However, expert evidence is not required in every case and I am not bound to accept the opinion of the expert if I find it to be unpersuasive or if I find the foundation for the opinion to be unproven.¹³

139In determining likelihood in the context of dangerous offender proceedings, actuarial risk assessment has played a prominent role. It was held by Laforme J. (as he then was) in R. v. McArthur¹⁴ in considering likelihood under the predecessor legislation, that where the actuarial tools resulted in a prediction of a 44% risk, the requirement of a ‘likelihood’ of violent re-offence was not met. A similar conclusion was reached by the Nova Scotia Court of Appeal in R. v. J.T.H.¹⁵ The Court in J.T.H. said, “Results in the moderate range indicate a less than 50% risk of reoffending. A less than 50% probability is not a likelihood, but a possibility which is not the test in s. 753(1)(b).”

140Counsel for Mr. R.K. argues that Mr. R.K.’s risk scores on the actuarial tools should all be adjusted downward to correct errors made by Dr. Wilkie. Mr. R.K. would then be scored as a moderate or moderate low risk to reoffend on every actuarial tool. Even as originally scored by Dr. Wilkie, Mr. R.K.’s scores placed him below the 50% mark on all but the PCL-R. It was conceded by Dr. Wilkie that the PCL-R would be adjusted down by 1. There is no evidence as to the percentile score that results from that adjustment.

141I have concluded that limited weight can be given to the actuarial scores in this case. Dr. Wilkie relied on material that was provided to her and that was not ultimately proven. I have found that there is reason to question the diagnosis of antisocial personality disorder and that this impacts on the VRAG result. I have approached the tests and the failure to prove some underlying facts by giving no weight to the PCL-R and by inferring that there would be some downward adjustment in each of the other tools. Although Mr. R.K.’s scores on the available actuarial tools fall below the 50% risk mark and all would be subject to some level of downward adjustment, I do not agree that this justifies a conclusion that likelihood has not been proven.

142It is important to recognize that actuarial tools serve to place an offender within a group or category of similar offenders. The risk that is quantified is based on the developmental sample and the rate of recidivism within the sample. The test does not assist in identifying which individuals within the group or category will be the ones to reoffend and which individuals will not reoffend. Actuarial tools give percentages for a category of offenders and do so based solely on historical factors. Sentencing cannot be determined by actuarial tools alone. Sentencing, and the determination of likelihood of re-offence for sentencing purposes, must be based on the specific circumstances of the individual and must be prospective.

143I agree with the observation of Dambrot J. in R. v. Johnson, where, in considering the opinion of the psychiatrist with regard to risk, he said the following:

I agree with Dr. Hucker that one should not be overwhelmed by the nature of the offences committed by Mr. Johnson, and reach naïve conclusions. But neither am I so naïve as to believe that psychological tests are imbued with predictive infallibility. The fact that I have heard evidence of the results of these tests does not disentitle me to draw the ordinary commonsense conclusion that past conduct is the best predictor of future conduct. I would not draw such a conclusion without a careful consideration of all of the evidence, including whatever additional insight I can glean from the psychiatric evidence. But I am not constrained to simply adopt or reject Dr. Hucker's conclusions, or, more particularly, the numerical results he obtained by administering tests. This is consistent with what was said by the Supreme Court in Currie, when the Court stated, at para. 22, that "[a]s long as the offender's past conduct, whatever that conduct may be, demonstrates a present likelihood of inflicting future harm on others, the [dangerous offender] designation is justified.¹⁶

144An additional limitation on the utility of the actuarial tests in this case is that there is no actuarial tool designed to measure the risk of domestic violence. This is the primary risk that is identified with respect to Mr. R.K.. In assessing the likelihood of re-offence in this case the domestic context of the offences is a key element. Mr. R.K. has reoffended seriously and repeatedly, but within a narrow context. Dr. Wilkie’s assessment of Mr. R.K. using the SARA concluded that he presented a high risk for future violence against a domestic partner. While Dr. Wilkie found some recent employment problems for Mr. R.K. in her SARA assessment and mistakenly found a violation of a recent contact order, her assessment was otherwise unshaken. The SARA is not an actuarial tool, but a structured professional judgment tool. It is the only tool that is designed to examine the risk of future domestic violence.

145I do not find that Dr. Wilkie lacked objectivity or took insufficient care in her assessment. Dr. Wilkie at times relied on material provided to her, but not later proven in court. This does not reflect adversely on Dr. Wilkie’s reliability. It does reduce the weight that I can give to those portions of her testimony. In this case, it reduces the weight that I can give to the actuarial tests.

146I have not accepted the diagnosis of Antisocial Personality Disorder as a result of the problems in the foundation facts relied upon to support the underlying diagnosis of conduct disorder. This in itself has little impact on my assessment of the likelihood of re-offence. Mr. R.K. clearly has antisocial personality traits. The absence of a diagnosis of personality disorder impacts on actuarial scores, but does not change the other aspects of risk assessment.

147Counsel for Mr. R.K. has also argued that Mr. R.K.’s age is a factor that reduces the likelihood that he will reoffend. Mr. R.K. is 51 years-old. If he is not given an indeterminate sentence he will receive a significant determinate sentence and period of time under a Long Term Supervision Order, given the concession that he meets the definition of a long-term offender. His age at the end of imprisonment and supervision will at least be in his 60’s. Dr. Wilkie agreed and it makes sense that the likelihood of an offender reoffending violently generally decreases with age, beginning at age 40-45.

148While I accept that there is generally a decrease in violent offending with age, there is no indication that Mr. R.K.’s pattern of offending is decreasing significantly with age. These offences were committed when he was 47 years-old. Counsel has argued that Mr. R.K. will have less opportunity to attract a domestic partner with age and given that he will be leaving prison, will have little in the way of finances and prospects to attract a partner. It is speculative to predict that Mr. R.K. will be unattractive any domestic partner upon his release. Counsel also argues that he will not be as physically able to overpower a partner. He will have less strength and energy. I accept that Mr. R.K.’s physical strength is likely to decline with age. However, I do not accept that a decline in his strength will impact on the likelihood that he will violently reoffend. I accept Dr. Wilkie’s opinion that Mr. R.K.’s interpersonal/affective antisocial traits, including his prominent negative attitudes towards women, grandiosity and lack of empathy are unlikely to change significantly with age.

149I accept Dr. Wilkie’s assessment of the risk of Mr. R.K. reoffending against a domestic partner. Dr. Wilkie’s opinion is supported by the record. I find that even without Dr. Wilkie’s expert opinion, the only rational conclusion, given Mr. R.K.’s history, is that it is likely that he will reoffend violently against a domestic partner.

150Mr. R.K. offended violently against S.D. in 2001 and 2003. He caused serious physical and psychological harm to S.D. He was imprisoned and refused all treatment. Mr. R.K. told the Parole Board that he had given S.D. a “boot fucking”. At the same hearing he told them that they could “not stop the inevitable”. He was subject to a s. 810.2 recognizance on release and nevertheless became involved in a new relationship that resulted in further violent offences. He caused serious physical and psychological harm to D.P. Mr. R.K. told S.D. that she was a slut a bitch and whore and he told D.P. that all women were sluts and whores. Mr. R.K. has clearly expressed his contempt for women. He has expressed his own view of himself as a ‘dominant alpha male.’ He will inevitably seek to physically and psychologically dominate and subjugate a future domestic partner.

151The conclusion that Mr. R.K. is likely to reoffend against an intimate partner is inescapable given his history, his expressed attitudes and his complete lack of insight. Without deciding that ‘likelihood’ requires more than proof beyond a reasonable doubt of mere probability, I find that in this case the evidence establishes beyond a reasonable doubt a very substantial probability that Mr. R.K. will reoffend violently against a future domestic partner.

152I find that the Crown has proven beyond a reasonable doubt that Mr. R.K. is likely to cause death or serious injury in the future from a failure to restrain his behaviour.

Subsection 753(1)(a)(ii)

153To prove that Mr. R.K. is a dangerous offender pursuant to subsection 753(1)(a)(ii), the Crown must prove that he constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence that establishes a pattern of persistent aggressive behavior, of which the offence for which he has been convicted forms a part, showing a substantial degree of indifference on his part respecting the reasonably foreseeable consequences to other persons of his behavior.

154For the same reasons expressed above in paragraphs 128 to 131, with respect to a repetitive pattern showing a failure to restrain behaviour, I am satisfied beyond a reasonable doubt that the Crown has proven a pattern of persistent aggressive behaviour, of which the offences before me form a part.

“Substantial degree of indifference respecting the foreseeable consequences of his behaviour”

155The circumstances of the offences against S.D. and D.P. show a substantial degree of indifference respecting the foreseeable consequences of Mr. R.K.’s behaviour. Mr. R.K. had forced intercourse with both S.D. and D.P. following violent assaults on them. When D.P. told Mr. R.K. that he was hurting her he said, “good, maybe you will learn your lesson.”

156Mr. R.K. told D.P. that she would “pay for what [S.D.] did.”

157Mr. R.K. committed the offences against both D.P. and S.D. over a prolonged period of time. Mr. R.K.’s comments to the Parole Board concerning his offences support the conclusion that he was substantially indifferent to the foreseeable consequences of his behaviour. His comment to Dr. Wilkie that he did not really have a criminal record, “just two domestics” also supports this conclusion.

158The Crown has established beyond a reasonable doubt that Mr. R.K. is a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence that establishes a pattern of persistent aggressive behaviour showing a substantial degree of indifference on his part respecting the reasonably foreseeable consequences to other persons of his behaviour.

(i) Section 753(1)(b) – Failure to Control his Sexual Impulses

159To establish that Mr. R.K. is a dangerous offender pursuant to subsection 753(1)(b), the Crown must prove that he, by his conduct in any sexual matter, including that involved in the commission of the offence for which he has been convicted, has shown a failure to control his sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.

160Mr. R.K. was convicted of sexually assaulting the S.D. and D.P. In both cases the victims were sexually assaulted by Mr. R.K. after he had physically assaulted each of them.

161The evidence of Dr. Wilkie is that Mr. R.K.’s sexual offending is not driven by sexual deviance or paraphilia

162The circumstances of the sexual assaults support the inference that the offences are driven by Mr. R.K.’s attitudes towards women and particularly towards his domestic partners. The evidence does not support the conclusion that Mr. R.K.’s offences are driven by an inability to control his sexual impulses.

163I find that the Crown has not proven beyond a reasonable doubt that Mr. R.K. meets the definition of a dangerous offender under s. 753(1)(b).

(ii) Is there a reasonable expectation that a sentence other than an indeterminate sentence will adequately protect the public against the commission, by Mr. R.K., of murder or a serious personal injury offence?

164As explained by Rosenberg J.A. in R. v. Szostak,¹⁷ the 2008 amendments to the Criminal Code removed the discretion that previously existed to not find the person to be a dangerous offender even though s/he came within the definition in s.753(1). That discretion has been replaced with a “highly structured discretion” in ss. 753(4) and (4.1) to impose a determinate sentence or a determinate sentence with a long-term supervision order, rather than an indeterminate sentence, even though the offender is designated a dangerous offender. A determinate sentence or a determinate sentence followed by a long-term supervision order may only be imposed if there is, on the evidence, a “reasonable expectation” that such a sentence will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

165A ‘reasonable expectation’ in the context of section 753 was described by Hill J., in R. v. D.B., as requiring, “an evidence-based evaluation, based upon objectively valid and relevant criteria, with probabilistic assessment exceeding chance, speculation, hope or mere possibility that something will happen.”¹⁸

166In R. v. Tremblay,¹⁹ Karakatsanis J. stated that “the determination of whether an offender’s risk can be reduced to an ‘acceptable’ level requires consideration of all factors, including whether the offender can be treated, that can bring about sufficient risk reduction to ensure protection of the public. This does not require a showing that the offender will be ‘cured’ through treatment or that his or her rehabilitation may be assured.”

167Evidence that the offender is amenable to treatment must be more than mere speculative hope and must indicate that the offender can be treated within a definite time frame.²⁰

168In D.B., Hill J. set out the following non-exhaustive list of factors to consider in determining whether there exists a reasonable expectation that a lesser measure than an indeterminate sentence will adequately protect the public:

(1) The degree to which the offender has been cooperative with the Part XXIV process;

(2) Whether the offender has previously refused treatment or failed to take advantage of treatment opportunities;

(3) Whether the offender has been expelled from prior treatment programs;

(4) Whether the offender has previously refused to take prescribed medication or has unilaterally discontinued pharmacological treatment;

(5) Whether the offender has taken treatment in the past and if so whether it ultimately failed to reduce or control the offender's risk to the public;

(6) Is the offender motivated and committed to treatment?

(7) Are there realistic prospects for treating the offender's mental disorder(s) having regard to relevant factors such as propensity and intractability?

(8) Respecting the predicate offences, is there a lack of insight, failure to accept responsibility, denial and minimization, a lack of empathy for the victim(s), absence of remorse?

(9) The circumstances of the offender's institutional behaviour including in advance of the dangerous offender hearing;

(10) What improvements or gains in risk reduction can be expected during a period of custody preceding community release?

(11) Has past engagement with community supervision been compliant?

(12) Apart from treatment considerations, are there sufficiently available and resourced external controls in the community to adequately protect the public? and

(13) As a factor independent of treatment, is there compelling, not speculative, expert evidence that the offender's proclivities will significantly decline in the future while falling within the period of a determinate sentence and the term of a LTSO?²¹

The degree to which the offender has been cooperative with the Part XXIV process

169Mr. R.K. was somewhat cooperative with the Part XXIV process. He attended and participated in the first of three attempted interviews by Dr. Wilkie. His failure to cooperate in the subsequent interviews is described as reasonable by his counsel in light of Mr. R.K.’s reasonable request for a witness and then for his handcuffs to be removed prior to the second interview and his request for video and audio recording of the third interview. Mr. R.K. did not refuse to participate in psychological testing, but said that he would seek advice. The Crown argues that Mr. R.K. failed to participate fully or meaningfully in the process.

170I find that Mr. R.K. was reasonably cooperative in the interview process. He remained at the first interview and answered all questions. He attended the next two interviews and made fairly reasonable requests concerning the conduct of the interview. He was under no obligation to participate in the process.

Whether the offender has previously refused treatment or failed to take advantage of treatment opportunities

171It is clear from the CSC records that Mr. R.K. has, in the past, refused to participate in any assessment or treatment directed at reducing his risk for domestic violence. Mr. R.K. had programming available to him from 2006 until 2010 to address his identified treatment needs. He refused all but one programme, the ‘Deniers Programme’.

172The treatment condition of his s. 810.2 recognizance required that Mr. R.K., “Enroll in and attend treatment programs for Family Violence Intervention, Sex Offender Management, Anger and Emotions Management, Violence Prevention Management, Psychological Risk Assessment or Treatment, and Alcohol and Substance Abuse and provide the officer in charge of the Toronto Police Division with proof in writing of [his] enrollment in [his] first chosen program within 30 days of the date of [his] release under the terms of [the] recognizance and thereafter within 30 days of beginning each successive program.” Mr. R.K. attended a Structured Relapse Prevention group which consisted of 12 two-hour sessions and covered topics such as setting goals, anger management, harm reduction and health and wellness following his release from prison in 2011.

173While in the detention centre following his conviction on the charges before this Court, Mr. R.K. attended 11 one-hour education programmes.

Whether the offender has been expelled from prior treatment programs

174Mr. R.K. has not been expelled from any of the programmes that he has attended.

Whether the offender has taken treatment in the past and if so whether it ultimately failed to reduce or control the offender's risk to the public

175The only treatment taken by Mr. R.K. was the John Howard Society Relapse Prevention Group. He participated in this group from October 2011 to mid-December 2011. He began his relationship with the victim, D.P., in December 2011. He committed the first of the offences against D.P. by March of 2012.

176Mr. R.K. has undertaken almost no treatment. The one regular programme undertaken by Mr. R.K. immediately preceded the predicate offences and appears to have had no impact on reducing or controlling the risk he presents.

Is the offender motivated and committed to treatment?

177Mr. R.K.’s participation in the John Howard Programme was mandated by his s. 810.2 recognizance. Mr. R.K. has recently participated in an assessment and he has attended education programmes in the detention centre. His participation in education sessions postdates the commencement of the Crown’s application for Mr. R.K. to be declared a dangerous offender.

178His history in the penitentiary shows that he is able to recognize when acceptance of programmes could be of some benefit to him. In his 2009 parole hearing he said, “The only reason you take a programme is to get parole…I’m not getting parole so I don’t take the programmes.” His participation in the John Howard group illustrates that he may attend a programme if it is mandated.

179I accept that Mr. R.K.’s recent participation in the assessment and the education sessions in the detention center shows some limited motivation to accept programming. Based on his history, however, I find that the motivation for Mr. R.K. is quite limited and does not derive from any insight, but from a recognition that participation would assist him in this application.

Are there realistic prospects for treating the offender's mental disorder(s) having regard to relevant factors such as propensity and intractability?

180Mr. R.K's Cocaine Use Disorder is treatable. Dr. Wilkie testified that treatment is available to address this diagnosis. Dr. Wilkie also testified that such treatment is less effective when the person is also diagnosed as having Antisocial Personality Disorder. As I outlined earlier in these reasons, I give little weight to the opinion of Dr. Wilkie that a diagnosis of Antisocial Personality Disorder is supported in this case. Dr. Wilkie’s alternative position, that Mr. R.K. has antisocial personality traits is well-supported. Dr. Wilkie’s evidence was that the existence of antisocial personality traits would also make treatment more difficult.

181Dr. Wilkie’s opinion was that Mr. R.K. did not only engage in violent behaviour towards his partners when using or withdrawing from cocaine. By Mr. R.K.’s account in the institutional record he was not using cocaine for at least six months before the attack on S.D. Treatment for cocaine, while appropriate would be insufficient to address the risk posed by Mr. R.K.. Mr. R.K. has never expressed any willingness to engage in substance use treatment.

Respecting the predicate offences, is there a lack of insight, failure to accept responsibility, denial and minimization, a lack of empathy for the victim(s), absence of remorse?

182There is no evidence of Mr. R.K. having any insight into the predicate offences. When Dr. Wilkie asked Mr. R.K. about his criminal record he said, “I don’t really have a criminal record…I have two domestics.” When asked about his friends, Mr. R.K. told Dr. Wilkie that his friend did not like D.P. because she was a “junkie”.

183In the past, Mr. R.K. exhibited a lack of insight and a failure to take responsibility for his offences against S.D. For example, at his 2008 parole hearing he referred to “boot fucking” S.D.

184Mr. R.K. exhibited some level of insight into his cocaine abuse in his statement to the Court.

The circumstances of the offender's institutional behaviour including in advance of the dangerous offender hearing

185During Mr. R.K.’s detention while awaiting trial for the offences against S.D., he exhibited problematic behaviour toward women correctional officers. With the exception of his conduct at his parole hearing in 2008, Mr. R.K. presented no significant management problems in the penitentiary. He engaged in prosocial conduct for some period of time when he worked as a tutor. Since his detention on the predicate offences he has not presented as a management problem. He has attended and completed education sessions.

What improvements or gains in risk reduction can be expected during a period of custody preceding community release?

186Appropriate treatment programmes are available to Mr. R.K. in the federal penitentiary system. The evidence of Ms. Rousell was that high intensity treatment geared to risk reduction prior to release would be available to Mr. R.K.. The treatment would be designed to address the particular areas of concern for Mr. R.K..

187While I have no doubt that appropriate and effective programmes are available in the penitentiary system, I cannot conclude that there is reason to expect improvements or gains in risk reduction as a result of the programmes given Mr. R.K.’s pattern of refusing to participate in assessment and treatment and his lack of insight into any issues aside from his cocaine abuse.

Has past engagement with community supervision been compliant?

188Mr. R.K. was not compliant with his s. 810.2 recognizance.

Apart from treatment considerations, are there sufficiently available and resourced external controls in the community to adequately protect the public?

189If Mr. R.K. was released on a LTSO it is likely that he would be released to a CCC. The available controls in the community consist of a period of close monitoring and supervision by staff at the CCC. Breaches of house rules would result in denial of privileges and restriction of access to the community. Breaches of conditions of the LTSO would result in suspension of the LTSO and return to custody for a period of up to 90 days. A breach could also result in a further criminal charge. Pursuant to subsection 753.01 of the Criminal Code, a conviction for a breach of the LTSO by a person who has been designated a dangerous offender results in a mandatory assessment order upon the application of the prosecutor. The prosecutor may then apply for an indeterminate sentence.

190I accept that the level and type of community supervision to which Mr. R.K. would be subject would make it more difficult for him to become involved in a domestic relationship. However, release to a CCC necessarily entails community access. Mr. R.K. would be given access to the community at least through the day and would have an opportunity to forge relationships. The supervision and control available upon release is not adequate to protect future intimate partners absent meaningful treatment, insight and a willingness on Mr. R.K.’s part to comply with supervision.

As a factor independent of treatment, is there compelling, not speculative, expert evidence that the offender's proclivities will significantly decline in the future while falling within the period of a determinate sentence and the term of a LTSO?

191As I discussed in considering the likelihood of re-offence, the expert evidence of Dr. Wilkie supports the conclusion that age will likely cause some decline in the level of violence and aggressive behaviour engaged in by Mr. R.K.. Dr. Wilkie did not quantify the level of decline. She also stated that variables that would not be expected to change with age were his interpersonal/affective antisocial traits, including his prominent negative attitudes towards women, grandiosity and lack of empathy.

192I cannot conclude that Mr. R.K.’s aggression toward domestic partners will significantly decline with age.

conclusion

193Having considered all of the evidence on this application and in particular the factors set out above, I have no reasonable expectation that the public can be adequately protected from Mr. R.K. by a measure less than an indeterminate sentence. Mr. R.K.’s complete lack of insight, his consistent refusal to engage in assessment and treatment and his attitude of contempt towards his victims preclude any expectation that he will engage in treatment or submit to management and supervision. It would entirely speculative and unreasonably hopeful to conclude that Mr. R.K. will engage in treatment or submit to supervision given his consistent pattern of refusing treatment and breaching supervisory conditions.

194For the reasons set out above, I conclude that Mr. R.K. must be found to be a dangerous offender and sentenced to concurrent indeterminate terms on each of the serious personal injury offences, namely: count 2, forcible confinement; count 12, assault causing bodily harm; counts 3,4 and 7, assault with a weapon and count 15, sexual assault.

195In accordance with s.760 of the Criminal Code I order that transcripts of the evidence on these proceedings, all material filed on this application, these reasons and a transcript of the trial evidence be forwarded to CSC.

196On the remaining counts that are not serious personal injury offences the appropriate sentences are the following:

1. On counts 5 and 9, threaten death, a sentence of 3 months on each count;

2. On counts 8 and 14 threatening to cause bodily harm, sentences of 3 months on each count;

3. On counts 10 and 16, assault, 3 months on each count;

4. On counts 1 and 11 mischief , 3 months on each count;

5. On the 4 counts of breaching his s.810.2 recognizance, of 3 months on each count.

197The determinate sentences set out above would each be consecutive to each other amounting to a total sentence of 36 months. They would be concurrent to the indeterminate terms of detention.

198Mr. R.K. is entitled to credit for pre-trial custody. The Crown argues that he should be denied any enhanced credit because of his institutional record and history. Counsel for Mr. R.K. argues for enhanced credit because of the lockdowns and conditions in the detention center. I need not determine this issue because on either calculation of pretrial credit he has served more than the total fixed sentence of 36 months. Therefore with credit for pretrial custody of 36 months, Mr. R.K. is sentenced to time served and 1 day on each of the counts set out above in paragraph 196.

199I further order the taking of samples of bodily substances for the purpose of DNA analysis pursuant to s. 487.051(1) of the Criminal Code; an order pursuant to s.109 of the Criminal Code prohibiting Mr. R.K. from possessing any weapon for life; an order pursuant to s.743.21 of the Criminal Code prohibiting Mr. R.K. from contacting D.P. or Alex P. while in custody; and an order pursuant to s.490.012 requiring Mr. R.K. to comply with the provisions of the Sex Offender Information Registry Act for life.

Forestell J.

Released: June 2, 2016

(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing

(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour,

(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour…

or

(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.

(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.

(4.1) 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.

Footnotes

1. 1In a ruling dated October 14, 2014 I ruled that the offences meet the s. 752 definition of personal injury offences.
2. 2753. (1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied
3. 3R. v. Currie, 1997 CanLII 347 (SCC), [1997] 2 S.C.R. 260 at para. 42
4. 4753 (4) If the court finds an offender to be a dangerous offender, it shall
5. 5There were three documents included in the filed record that the parties agreed should not be considered. I have not considered those documents.
6. 6R. v. Johnson, 2003 SCC 46, [2003] S.C.J. No. 45, at para. 29
7. 7R. v. Lyons, [1987] S.C.R. 309 at para 44.
8. 8R. v. Currie 1997 CanLII 347 (SCC), [1997] 2 S.C.R. 260 at para. 42
9. 9R. v. Neve, 1999 ABCA 206, [1999] A.J. No. 753 at para. 118 (C.A.) and in R. v. Naess, [2005] O.J. No. 936 at para. 63 (S.C.J.)
10. 102013 ONSC 589 at para. 18
11. 11[2008] O.J. No. 4209 at para. 60
12. 12Johnson, supra, at para 60. R.v. Johnson interpreted the long-term offender provisions, but with reference to the words in s.753(1).
13. 13I, 2013 ONSC 589 at para. 24
14. 14(1998) O.J. No. 5184 at
15. 15(2002) 2002 NSCA 138, N.S.J. No. 476
16. 16Johnson, supra, at para. 70
17. 172014 ONCA 15 at paras. 52-53
18. 18R. v. D.B., 2015 ONSC 5900, [2015] O.J. No. 5138 (S.C.J.) at para. 194
19. 19[2010] O.J. No. 3450 at para 154
20. 20R. v. Tremblay, supra, at para 155; R. v. McCallum (2005), 2005 CanLII 8674 (ON CA), 201 C.C.C. (3d) 541 at paras. 34-42 leave to appeal to S.C.C. refused, [2006] S.C.C.A. No. 145
21. 21R. v. D.B., 2015 ONSC 5900, [2015] O.J. No. 5138 (S.C.J.) at para. 199