CITATION: R. v. Wesley, 2016 ONSC 408

KENORA COURT FILE NO.: CR-13-013

DATE: 2016-01-25

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Applicant

and -

JOHN WESLEY

Respondent

Mr. Peter Keen, for the Crown

Mr. Robert Sinding, for the Defence

HEARD: August 4 – 5 and September 21 – 23, 2015, at Kenora, Ontario

Madam Justice H.M. Pierce

Reasons on Dangerous Offender Application

PUBLICATION BAN PURSUANT TO SECTION 486.5 OF THE CRIMINAL CODE

Introduction

[1] On March 31, 2014, John Wesley was found guilty of a sexual assault. The Crown obtained consent to proceed with a dangerous offender application and the necessary assessment report has been filed. A hearing followed with witnesses called by the Crown. Mr. Wesley did not call evidence on the application. The Crown submits that Mr. Wesley should be declared a dangerous offender and subject to an indeterminate sentence.

[2] The defence objects to a finding that Mr. Wesley should be declared a dangerous offender. It submits that there are gaps in Mr. Wesley’s criminal record and that there is no pattern in his offending to warrant such a declaration. Instead, the defence proposes that Mr. Wesley be sentenced to a term of eight years on the sexual assault charge less enhanced credit for time served, to be followed by a ten year Long Term Supervision Order.

[3] Mr. Wesley is an aboriginal man; accordingly, the court must consider Gladue factors.

Legal Parameters

[4] Section 753 of the Criminal Code sets out the parameters for a dangerous offender application. In this case, the Crown abandons s. 753(1)(b) as grounds for the application and instead relies on s. 753(a)(i) and (ii). There is no dispute that the predicate offence underpinning the application, sexual assault, constitutes a serious personal injury offence.

The relevant portions of the statute provide:

753(1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied

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

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

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

[5] The Crown bears the onus of proof in a dangerous offender application. It must prove beyond a reasonable doubt that Mr. Wesley is a dangerous offender: R. v. Currie, 1997 347 (SCC), [1997] 2 S.C.R. 260 (S.C.C.) at para. 42. As well, the Crown must prove aggravating factors beyond a reasonable doubt: R. v. Gardiner, 1982 30 (SCC), [1982] 2 S.C.R. 368 (S.C.C.).

[6] As the Alberta Court of Appeal said in R. v. Neve, 1999 ABCA 206, [1999] A.J. No. 753, para. 115, the Crown must also prove beyond a reasonable doubt that there is a likelihood that the type of aggressive behaviour described in s. 753(a)(ii) will continue in future.

[7] The current wording of s. 753(1) in the Criminal Code has, as the Court of Appeal pointed out in R. v. Szostak, (2014), 2014 ONCA 15, 118 O.R. (3d) 401, para. 36, removed the discretion of the trial judge to declare a person a dangerous offender, if he or she fits the definition. Instead, it requires the court to make a dangerous offender finding if satisfied that the Crown has proved there is a “likelihood” of the offender causing future harm. The current wording of a “likelihood” of future harm is more than a possibility but it does not reach the level of certainty or even probability of future harm: R. v. Langevin, 1984 1914 (ON CA), [1984] O.J. No. 3159 (Ont. C.A.), para. 31.

[8] If Mr. Wesley is declared a dangerous offender, the court must impose an indeterminate sentence under s. 753(4)(a) of the Code unless it is satisfied upon the evidence during the hearing that there is a reasonable expectation that a lesser measure will adequately protect the public: s. 753(4.1). These lesser measures prescribed by the Code may be a determinate sentence of at least two years followed by a long-term supervision order or a determinate sentence without a long-term supervision order. See: s. 753(4)(b) and (c) of the Criminal Code.

[9] Should the statutory criteria for a dangerous offender not be met, then the court may treat the application as a long-term offender application pursuant to s. 753.1(1) of the Criminal Code, or the court may simply impose a “regular” sentence for which the offender has been convicted, pursuant to s. 753(5) of the Code. It is after a finding that the judge has discretion to impose a sentence.

[10] If the court is satisfied that the offender is a long-term offender pursuant to s. 753.1 of the Code, the court must impose a determinate sentence of a minimum of two years followed by a long-term supervision order that does not exceed ten years: s. 753.1(3). If under this rubric, the court is not satisfied that the offender is a long-term offender, the court simply sentences the offender for the offence for which he was convicted: s. 753.1(6).

[11] The ramifications of a finding that a person is a dangerous offender are significant even when an indeterminate sentence is not imposed. Pursuant to s. 753.01 of the Criminal Code, if the dangerous offender is later convicted of a serious personal injury offence or a breach of a long-term supervision order, the Crown may simply apply for an indeterminate sentence pursuant to s. 753.01. There is no requirement that the accused commit a further personal injury or sexual offence before the Crown makes its dangerous offender application.

[12] Neither party bears a burden to satisfy the court that a lesser disposition would protect the public from a likelihood of future harm. Rather, the court must exercise its discretion to determine the disposition based on all the evidence. See: R. v. F.E.D., 2007 ONCA 246, [2007] O.J. No. 1278 (Ont. C.A.), paras. 49 – 50, leave to appeal refused.

[13] The principles of sentencing apply to a dangerous offender application. For example, the sentencing decision must be proportionate to the gravity of the offence and the degree of responsibility of the offender: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, paras. 51, 55 and 73. However, because a dangerous offender application is a sentencing hearing, the rules of evidence are relaxed. For example, hearsay evidence is admissible if it is credible and trustworthy: R. v. Albright, 1987 26 (SCC), [1987] S.C.J. No. 56 (S.C.C.), para. 14.

Summary of Mr. Wesley’s Criminal History

[14] Mr. Wesley committed the predicate offence, sexual assault, on October 12, 2012, at M[…] First Nation. At the time, the victim, aged 18, was unconscious or seriously incapacitated by the effects of alcohol. The offender engaged in penile vaginal intercourse with her, causing minor physical injury but considerable psychological distress. In her victim impact statement prepared two years after the assault, she described feeling dirty and disgusted, a feeling that lingers. She stated that she is embarrassed, wondering what people are saying about her. She is angry when the subject is raised. She was also confused, as she was not then sexually active. She expressed fear of seeing Mr. Wesley. After the assault, she took medication to prevent pregnancy.

[15] Mr. Wesley’s first conviction was entered on November 28, 1986, when he was 17. He was convicted of aggravated assault. The incident involved the offender and other youths attacking a man and beating him with a garden rake, cutting him in the process. Then, Mr. Wesley cut the victim’s back with a knife. More than 200 stitches were required to close the wounds.

[16] In discussing this incident with the psychiatrist, Dr. Klassen, Mr. Wesley described the victim taunting him and coming at him with a knife. He admitted using a rake and acknowledged kneeing and “stomping” the victim but denied that he had a knife. Mr. Wesley told Dr. Klassen that he was sober at the time.

[17] Although this was a first conviction, he was sentenced to the maximum sentence under the Young Offenders Act, two years in secure custody. While incarcerated, Mr. Wesley escaped custody twice. He was sentenced to an additional 30 days and six months in custody respectively for the escapes.

[18] On February 1, 1989, the offender committed an assault for which he was convicted and sentenced to thirty days in jail. The facts of this case did not form part of the Crown’s application. Mr. Wesley stated that he and the victim got into a fight at a hockey tournament when the offender was sober and the victim drunk.

[19] On February 28, 1989, Mr. Wesley committed an aggravated assault on Andrew Mishenene and on March 23, 1989, he committed mischief by damaging a police vehicle. He was sentenced on May 17, 1989, to one month on each charge. There are no admissible facts in the Crown’s application related to these convictions. Mr. Wesley’s explanation to Dr. Klassen of this incident is confused, such that Dr. Klassen wondered whether Mr. Wesley conflated two incidents.

[20] On October 28, 1990, he committed the offence of assault causing bodily harm to Jerry Keesickquayash. In that instance, he hit the victim in the head, fracturing his jaw in two places and leaving him with various lacerations to the head. The victim was taken to hospital in Sioux Lookout and then transferred by air ambulance to Thunder Bay. On November 10, 1990, he assaulted a police officer. On December 17, 1990, Mr. Wesley was charged with being in possession of a stolen snowmobile. Mr. Wesley was sentenced to one year in custody on all three charges, followed by two years’ probation.

[21] While in custody, Mr. Wesley “walked away” from the institution, for which he was convicted on June 18, 1991, and sentenced to a further 60 days.

[22] On December 14, 1991, while on probation, the offender and one other individual kicked in the door of a residence. He was charged with break and enter but pleaded guilty to mischief. His plea was taken in conjunction with a cluster of other offences, the most serious of which was an assault causing bodily harm on his common law partner, Mary Roundhead.

[23] On May 20, 1992, Ms. Roundhead was four months’ pregnant with Mr. Wesley’s child. She and Mr. Wesley were drinking together at M[…] when an argument began. Mr. Wesley punched her, knocking her to the floor, then kicked her in the ear and head. She ran out of the residence, with Mr. Wesley in pursuit. He caught up to her in the bush, grabbed her hair and she ended up on the ground. He kicked her in the neck, then tried to kick her in the stomach, but was prevented from doing so when she doubled over. He kicked her in the leg. He made her go to a residence but when they got there, she ran off and hid in the bush overnight.

[24] Mr. Wesley went to the Masakayash house to find Ms. Roundhead. Finding the Masakayash house locked, he smashed two windows on the door, trying to get in. From there, he went from house to house on the reserve, banging on doors and windows in a rage, trying to find her. He frightened the community Elders in the process.

[25] Later that night, Mr. Wesley got into a fight with some young men in the community, including Jeffrey Necan, and was injured. He woke early and began drinking heavily, then went out to seek revenge. He broke into Jeffrey Necan’s bedroom and punched and kicked him. Mr. Necan suffered a swollen nose, lips, a sore jaw, and required stitches on his chin.

[26] Mary Roundhead was severely injured in the attack. Her cheekbone was cracked and her face badly swollen. She suffered a severe concussion. Her eye was so damaged that it had to be surgically removed. She was transported to Winnipeg for treatment.

[27] The sentencing judge stated:

The circumstances of this particular offence are mind boggling, in the level of violence and menace that was shown. It is clear that he would have killed this woman, in my view, had she not been able to escape from him.

[28] Mr. Wesley was sentenced on June 18, 1992, to eight years in penitentiary for assault causing bodily harm to Mary Roundhead, with concurrent sentences of six months each for the assault on Mr. Necan, mischief, and breach of probation as a result of drinking alcohol.

[29] When interviewed by Dr. Klassen, Mr. Wesley denied striking Ms. Roundhead despite having pleaded guilty to these offences. He said that others broke the glass which got into Ms. Roundhead’s eye. He denied any property damage, stating that it was done by others who attacked him.

[30] Initially, Mr. Wesley engaged in programs offered in Stoney Mountain Penitentiary. However, he became disruptive, non-compliant, and threatening, such that he was charged with disciplinary offences. He was fined or placed in segregation. While in penitentiary, he became the leader of the Native Syndicate gang. He withdrew from correctional programming and made threats to harm community members at M[…].

[31] Mr. Wesley did not pursue parole, and consequently he was held until his warrant expiry date. The Parole Board concurred with his decision, noting his “refusal to address your risk factors, or cooperate with correctional authorities and your long history of violent criminality….”

[32] In the course of incarceration, Mr. Wesley’s classification was upgraded from medium to maximum security and he was transferred from Stony Mountain Penitentiary to Edmonton Penitentiary in September 1999.

[33] Anticipating Mr. Wesley’s release, the Crown obtained permission from the Attorney General of Ontario to bring a s. 810.2 recognizance against Mr. Wesley in order to reduce his risk of reoffending in the community. On June 16, 2000, he was placed on a recognizance and was released on conditions that required him:

(a) to abstain from alcohol; (b) not to use weapons; (c) not to associate with the Native Syndicate; (d) to notify police as to his place of residence; (e) to report weekly to the Ontario Provincial Police; (f) to observe a curfew between midnight and 6 a.m.; and (g) not to go to M[…] unless he had prior written permission from the Chief and Council.

[34] Unfortunately, the recognizance was insufficient to restrain Mr. Wesley’s behaviour. On July 28, 2000, Mr. Wesley was charged with three offences. These included an assault on his aunt, Margaret Wesley, mischief by damaging a police cruiser, and breach of undertaking by failing to comply with his curfew. He pleaded guilty and was sentenced on August 1, 2000, to 45 days in jail.

[35] While in custody on these offences, another inmate grabbed Mr. Wesley’s buttocks. Mr. Wesley punched the inmate in the face, causing some small lacerations about the victim’s eye.

[36] The offender was released on bail on August 20, 2000, with conditions that he abstain from alcohol and observe a curfew. He breached both terms and was arrested on September 2, 2000, for banging on the door of a residence while intoxicated, swearing and yelling at the occupant. Mr. Wesley was held in custody until his sentencing on November 7, 2000, when he received one day in custody in addition to credit for 66 days of pre-trial custody. Mr. Wesley also entered into a s. 810.2 recognizance.

[37] On January 24, 2001, some two and a half months after imposition of the foregoing sentence, Mr. Wesley committed two more assaults and breached the s. 810.2 recognizance. The facts are that Mr. Wesley was staying at the home of Elizabeth Wesley and Donny Kwandibens. The group had been drinking. Mr. Wesley punched Mr. Kwandibens in the mouth, then punched Elizabeth Wesley, knocking her to the ground. When she was on the ground, he kicked her in the chin.

[38] Evidently frightened, Mr. Kwandibens locked himself in the bathroom. Mr. Wesley shattered the bathroom door by kicking and punching it. Mr. Kwandibens escaped and summoned police. Injuries to Elizabeth Wesley included bruising and swelling to her face and a crooked nose that required medical attention. Police also noticed a large pool of her blood on the floor. On March 6, 2001, Mr. Wesley was sentenced to 18 months in custody in addition to 40 days of pre-sentence custody for these offences.

[39] On March 11, 2002, Mr. Wesley was released from custody. Four days later, he assaulted a police officer in Sioux Lookout. On April 30, 2002, he was sentenced to six months on that charge. Having served four months of the sentence, he was released on August 30, 2002.

[40] Mr. Wesley lived peaceably for about three months until November 28, 2002. At that time, he was drinking with his sister Susan Oombash when he “backhanded” her in the face for no apparent reason. While a police officer was attempting to arrest him for assault, he resisted the officer, pulling away and trying to throw the officer to the ground. Once placed in the cells, Mr. Wesley told the officer, “I’ll hunt you down, NAPS. I know who you are and I’m going to knock the door down and I’m going to hurt someone and you’re going to have to use your gun to stop me.” He also told the officer, “You’re dead as it is, you piece of shit.”

[41] As a result of these offences, Mr. Wesley was convicted for assault, assaulting a peace officer, and uttering threats. He was sentenced on April 25, 2003, to two years less a day, with credit for five months of pre-trial custody, giving a net sentence of 19 months. He was released on May 17, 2004.

[42] Two months after his release, Mr. Wesley was charged with several more offences. Ultimately, he was acquitted of some charges while others were withdrawn. The significance of these events is not the fact of the charges, but rather that he was detained in custody from July 11, 2004, until May 5, 2005. Thus, he was removed from the community during that time and had no opportunity to offend.

[43] Mr. Wesley was next charged with uttering death threats on November 5, 2005. The facts are that two youths broke into Mr. Wesley’s residence. Mr. Wesley chased them and caught them, then threatened to hang one of them. He was detained in custody from November 5 to 18, 2005, and received a conditional discharge plus six months’ probation.

[44] Mr. Wesley remained out of custody for 11 months until he was charged with several offences on October 11, 2006. These charges were stayed on April 27, 2007. The significance of these charges is that Mr. Wesley was in custody from October 13, 2006, until February 26, 2007, when he was released on a recognizance. In other words, although not convicted of the offences, he was removed from the community for a period of about four and a half months.

[45] Mr. Wesley lived peaceably in the community for almost one year, until on February 5, 2008, he was arrested for assaulting Theresa Hudson. He was released from custody on February 19, 2008, on an undertaking. The assault charge was withdrawn on June 6, 2008, when Mr. Wesley entered into a peace bond to keep the peace and be of good behaviour, especially towards Ms. Hudson.

[46] On July 19, 2008, while bound by the peace bond protecting Ms. Hudson, Mr. Wesley made a campfire for himself and Ms. Hudson. He began hitting Ms. Hudson, pulling her hair out, and threatening to throw her in the fire. He said that if he was jailed, he would have others get at her. When asked about this incident by Dr. Klassen, Mr. Wesley indicated that he and Ms. Hudson were using cocaine, Percocet, cannabis, and alcohol. On October 3, 2008, Mr. Wesley was convicted of assault and uttering threats, for which he was sentenced to 30 days in addition to 73 days of pre-sentence custody and two years’ probation. In total, Mr. Wesley was incarcerated from July 25 – October 25, 2008.

[47] The next violent offence occurred on December 2, 2008, when Mr. Wesley was just starting his term of probation. The circumstances of that offence are that police were called to a residence in which intoxicated people were fighting. There were complaints about Mr. Wesley and officers attempted to remove him. Mr. Wesley pushed one of the officers. When the police attempted to arrest him, he resisted, yelling profanities, kicking, and trying to pull away. Once lodged in the police vehicle, he kicked an officer in the face. While he was being transported, he kicked the vehicle cage with such force that he bent the frame of the window. He spat at the officers and told one officer that he was going to put a bullet in his head.

[48] On December 12, 2008, Mr. Wesley pleaded guilty to assaulting a police officer and breach of probation. He was credited with ten days of pre-sentence custody and sentenced to an additional four months. In total, Mr. Wesley was incarcerated from December 2, 2008, until March 2, 2009.

[49] Ten weeks after being released, Mr. Wesley was again involved in aggressive behaviour. On May 21, 2009, Mr. Wesley was charged with assault when, during an evening of drinking, he spat at his niece. He believed, at the time, that he was HIV positive. Ultimately, he was not. He pleaded guilty to common assault and was credited with 50 days of pre-trial custody. In addition, he was sentenced to one day plus nine months of probation. In total, he was jailed from May 22 to July 10, 2009.

[50] Over the next 27 months, Mr. Wesley did not come to the attention of police. Then, on October 24, 2011, Mr. Wesley was charged with aggravated assault and assaulting a peace officer. Ultimately, these charges were withdrawn on April 5, 2012. In the interim, Mr. Wesley was in custody from October 24, 2011, until December 12, 2011.

[51] On October 12, 2012, some ten months after his most recent release, Mr. Wesley was charged with sexual assault, the offence that brings him before the court. He has been in custody since that time, in excess of three years.

[52] Mr. Wesley was born on December 31, 1968; as of the date of this sentencing, he is 47 years old. Apart from the sexual assault conviction in this case, Mr. Wesley has been convicted of 18 violent offences, and received sentences totalling more than 16 years. The longest period of time Mr. Wesley remained in the community once his criminal record commenced was two years.

Behaviour While in Custody

[53] Mr. Wesley’s institutional records while in federal penitentiary are before the court. While they are now dated, they show that initially, Mr. Wesley applied himself to programs within the institution, including education, anger management, cocaine awareness and chemical dependency. He also succeeded at work placements. Then, in August of 1995, he punched the bars, fracturing his hand. By September of 1995, he withdrew from programming and incurred five minor institutional charges. He returned to the cognitive skills program in 1996 but later withdrew. He repeatedly left his work assignments when in penitentiary.

[54] His conduct record also includes incidents of threatening or disrespectful behaviour towards staff, assaultive behaviour towards inmates, possession of contraband, gang association and other disciplinary problems. Mr. Wesley admits to being associated with the Native Syndicate between 1994 – 1999. There are many examples of displays of anger and escalating behaviour as a result of behavioural problems. He was transferred to the Edmonton Institution in June 1999. Within days of his arrival at Edmonton, he was placed in segregation for making threats to inmates, staff, and himself.

[55] More recently, during his incarceration at the Kenora District Jail, Mr. Wesley was disciplined for assaulting another inmate. This occurred in April 2013. The reports about the assault suggest that it was mutual, but the fact of the assault was admitted by Mr. Wesley who complained that the other inmate was trying to control the range.

[56] A report dated July 11, 2014, from the Kenora District Jail indicates that Mr. Wesley threw his lunch at the corridor wall when he was angry with a correctional officer. He apologized and cleaned up the mess; he was not disciplined on that occasion.

Amenability to Community-Based Sentences

[57] Mr. Wesley has been subject to community-based sentences many times throughout his offending career. Generally, these dispositions have failed to prevent Mr. Wesley from re-offending. In all but one case, he engaged in violent offences while on probation, recognizances, or peace bonds. Some examples follow:

On December 17, 1990, he received a one year sentence, followed by two years’ probation. While still on probation, he committed the offence of assault causing bodily harm on Mary Roundhead, causing her to lose an eye;
On November 7, 2000, Mr. Wesley was subject to a recognizance for one year that required him to abstain from alcohol and abide by a curfew. Forty-one days later, he assaulted Margaret Wesley, damaged a police vehicle and breached his curfew;
Mr. Wesley was released on bail on August 30, 2002, with conditions that he abstain from alcohol and observe a curfew. Within three days, he came to police attention when he got drunk and began to bang on the door of the residence where he lived;
On February 19, 2008, Mr. Wesley was placed on a peace bond towards Theresa Hudson. Five weeks later, he assaulted her by hitting her and threatening to throw her in the fire;
On October 3, 2008, Mr. Wesley was given a disposition that included two years’ probation for the assault on Ms. Hudson. One month into the term of probation, he assaulted a police officer, breaching his probation. During the same term of probation, he assaulted his niece by spitting on her.

Gladue Factors

[58] Section 718.2(e) of the Criminal Code directs sentencing judges to consider all available options other than imprisonment that are reasonable in the circumstances, especially when sentencing aboriginal offenders.

[59] The Gladue factors (see: R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688), recognize that aboriginal offenders are overrepresented in Canada’s prison population and call on sentencing judges to consider the life experiences of aboriginal offenders that may have contributed to the offending behaviour. It is settled law that Gladue principles apply when sentencing aboriginal offenders including when considering long term sentences. The court is called on to assess the moral blameworthiness of the offender in light of his background and experiences. In this case, the Crown concedes that because of Mr. Wesley’s background, he has a reduced moral blameworthiness.

[60] The Supreme Court reminded trial judges in R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, para. 59, that s. 718.2(e) of the Criminal Code is designed to redress that overrepresentation of aboriginal offenders by adopting a restorative justice approach to sentencing. The court observed:

…Section 718.2(e) directs sentencing judges to pay particular attention to the circumstances of Aboriginal offenders because those circumstances are unique and different from those of non-Aboriginal offenders (Gladue, at para. 37). When sentencing an Aboriginal offender, a judge must consider:

(a) the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and

(b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection (Gladue, at para. 66). Judges may take judicial notice of the broad systemic and background factors affecting Aboriginal people generally, but additional case-specific information will have to come from counsel and from the pre-sentence report (Gladue, at paras. 83-84).

[61] In R. v. Montgrand, [2004] S.J. No. 150 (Sask C.A.), para. 16, and in R. v. Mattson, 2014 ABCA 178, [2014] A.J. No. 556 (Alta. C.A.), para. 44, the respective courts of appeal determined that Gladue considerations do not affect the finding as to whether an offender is a dangerous offender pursuant to s. 753(1) of the Criminal Code. Rather, these courts have held that Gladue factors come into play when the court determines what is a fit and proper sentence; in other words, at the stage where the court considers whether the offender’s behaviour can be controlled in the community. It appears that this point has not been settled by the Ontario Court of Appeal. Therefore, in accordance with the Supreme Court’s direction in Ipeelee, I will consider the application of Gladue factors at all stages of the dangerous offender application.

[62] Mr. Wesley is a member of M[…] First Nation which is a remote reserve located in Northwestern Ontario. Although M[…] is accessible by road, it is 500 kilometres from the nearest major centre. The community has previously been relocated. For various reasons, the community is a high risk, chaotic environment, characterized by substance abuse, physical and sexual violence, child protection issues, extreme poverty, widespread unemployment, inadequate and unsafe housing, low education levels, and involvement with the criminal courts.

[63] As a child, Mr. Wesley witnessed extreme violence, including physical and sexual assaults, shootings, stabbings, and other violence. He recalls escaping, hiding, or barricading himself to stay safe; as well, he expressed rage at his powerlessness as a child to help. He grew up in a home that housed between 20 to 40 members.

[64] Within his family circle, three family members have been murdered while other deaths were investigated as murders but reached no conclusion. Several of Mr. Wesley’s family died as a result of exposure, drowning, or other alcohol-related incidents. For example, in 1983, Mr. Wesley’s 12-year-old brother died from one of the highest blood/alcohol levels recorded in North America. Two other siblings were apprehended by the Children’s Aid Society and never returned to the family. One of his siblings was born a paraplegic and froze to death at the age of two or three.

[65] The brother to whom Mr. Wesley was closest was convicted at 17 of a brutal murder and was sentenced as an adult to a lengthy term. The pre-sentence report also notes that other members of Mr. Wesley’s extended family have serious criminal records. In particular, a cousin is serving a lengthy sentence for confining and molesting Mr. Wesley’s daughter.

[66] Mr. Wesley suffered from a battered, neglected childhood. He was variously raised by his mother, his aunt, and his grandparents. He reported that any one of their houses could be unsafe, with the result that he sometimes moved from house to house. He witnessed his caregivers being victimized by violence; for example, he reports that his grandmother was beaten with a pipe and had to be taken to hospital.

[67] Mr. Wesley reports being sexually abused in his mother’s home by more than five perpetrators when he was less than ten years old. As an adult, he has attempted suicide by hanging, and attempted to shoot or cut himself. He did not receive medical or psychological treatment on those occasions.

[68] In order to attend school, which was some distance from his home, he was placed with his maternal aunt. This, too, was a highly dysfunctional environment, characterized by high levels of neglect, violence, sexual offending, and substance abuse. Mr. Wesley has given varying accounts of when he began using inhalants: in one account he was seven or eight years old; in another, he was 17. His use of alcohol began as a teenager.

[69] Predictably, he did not succeed at school and did not return after grade three. As a result, Mr. Wesley was under-educated. When he left school, he lived on the land from the age of nine or ten until about 15. When incarcerated as an adult, he upgraded his education and is literate.

[70] Because of his substance abuse, his frequent stays in jail and his lack of education, Mr. Wesley has a limited work history. He has no employment record prior to 2004. Since that time, he has had short-term work contracts with the Band, generally earning minimum wage. He has worked as a janitor, security guard, maintenance man, dog control officer, youth patrol and survival guide, and general labourer. When employed, he was a diligent and willing worker.

[71] In the last ten years, Mr. Wesley has volunteered in his community, assisting in youth activities, working at the Safe House, and at a mental health project at Pashkokogan.

[72] Mr. Wesley began using street drugs when in penitentiary. He successfully completed a program about chemical dependency in penitentiary in 1995, and is attending AA meetings at the Kenora District Jail during the present incarceration. Since about 2002, Mr. Wesley has not been involved in illicit drugs. He has periods of sobriety interspersed with periods of heavy drinking which he says numb his feelings and help him cope with depression. It is noteworthy that his history of offending is not limited to periods when he is intoxicated.

[73] Mr. Wesley has engaged in one-on-one counselling in his community in order to deal with childhood trauma, grief, and loss. In about 2001, Mr. Wesley began assisting Elder Levius Loon with traditional activities such as fishing and harvesting and chores. This is a meaningful relationship for both men. Mr. Loon is a father figure and provides Mr. Wesley with guidance and traditional teaching. Mr. Loon lives with Mr. Wesley’s mother.

[74] At the District Jail, Mr. Wesley has also participated extensively in Bible study. He has made a conscious effort to return to as traditional a lifestyle as possible.

[75] Regardless of these positive efforts, the pre-sentence report notes that community members describe Mr. Wesley as having a “victim mentality.” They view him as frequently getting “caught up in the past.” At p. 13, the pre-sentence report comments:

Despite these efforts, the subject has been unable to sustain meaningful change. He continues to re-offend, remains loyal and strongly connected to gang culture values, beliefs and associations and has a well-established pattern of justifying, minimizing or blaming others for any unacceptable behavior. He does not identify consequences as a direct result of his own actions and fails to recognize or acknowledge the extent and lasting impact of his behaviour on his victims, their families and all members of the community.

Pattern of Repetitive Behaviour

[76] When considering the case law applicable to a finding that an offender has demonstrated a pattern of behaviour, one must be mindful of which of three schemes of dangerous offender legislation the court addresses: that from 1977, the revisions of August 1997, or the current revisions from July 2008. As mentioned above, the current scheme of dangerous offender legislation narrows the discretion of the trial judge to find a person is a dangerous offender but broadens the discretion with respect to sentencing options: R. v. Szostak, 2014 ONCA 15, 118 O.R. (3d) 401 (Ont. C.A.), para. 36.

[77] At para. 37 of Szostak, a case decided under the current statutory regime, the court summarized what the Crown must prove:

(a) that the predicate offence is a serious personal injury offence as listed in s. 752;

(b) that the offender constitutes a threat to the life, safety or physical or mental well-being of other persons because of:

(1) a pattern of repetitive behaviour showing (2) failure to restrain the behaviour, and (3) likelihood of causing death or injury or inflicting severe psychological damage; or

(1) a pattern of persistent aggressive behaviour showing (2) a substantial degree of indifference.

The statutory provisions also require that the predicate offence forms part of the pattern.

[78] The Ontario Court of Appeal considered the question of repetitive behaviour in dangerous offender applications in R. v. Hogg, 2011 ONCA 840, [2011] O.J. No. 5963, a case decided under the 1997 legislation. The court summarized its findings at para. 40 as follows:

…the pattern of repetitive behaviour that includes the predicate offence has to contain enough of the same elements of unrestrained dangerous conduct to be able to predict that the offender will likely offend in the same way in the future. This will ensure that the level of gravity of the behaviour is the same, so that the concerns raised by Marshall J.A. [see: R. v. Newman (1994), 1994 9717 (NL CA), 115 Nfld. & P.E.I.R. 197] – that the last straw could be a much more minor infraction – could not result in a dangerous offender designation. However, the offences need not be the same in every detail; that would unduly restrict the application of the section.

[79] In Szostak, the Ontario Court of Appeal reviewed a determination that the appellant was not a dangerous offender and reversed the finding. The court held at para. 60 that there was no requirement that the offences be serial offences. Rather, the court held that the fact that the various offences were committed spontaneously demonstrates that a pattern in both paragraphs s.753(1)(a)(i) and (ii). The court commented that especially in relation to para. (i):

… that the appellant was capable of spontaneously acting with such great violence as exhibited in the four offences demonstrates a failure to restrain his behaviour and a likelihood of causing death or injury to other persons through failure in the future to restrain his or her behaviour.

[80] At para. 61, the court also found that the trial judge erred in his conclusion that the appellant’s conduct must show a high level of intractability. The court adopted the statement in R. v. Neve (1999), 1999 ABCA 206, 71 Alta. L.R. (3d) 92 (Alta. C.A.) at para. 113:

Similarity…can be found not only in the types of offences but also in the degree of violence or aggression threatened or inflicted on the victims.

Risk Assessment

[81] Mr. Wesley was assessed, pursuant to court order, by Dr. Phillip E. Klassen, an experienced forensic psychiatrist, who prepared a detailed report for the court. He also delivered a supplementary report in response to questions posed by the defence. Dr. Klassen reviewed Mr. Wesley’s criminal history, the Crown’s application record, including his institutional records during incarceration, pre-sentence report, and other related materials.

[82] As well, he conducted comprehensive personal interviews with Mr. Wesley. These interviews canvassed his childhood and family history; education; employment; significant relationships; medical and substance abuse history; mental health; history of offending, including the index offence; institutional history; and community supervision. Dr. Klassen also conducted a functional inquiry and mental status examination. His report concluded with a diagnosis, risk assessment, and recommendations for risk management.

[83] Dr. Klassen’s opinion concerning Mr. Wesley’s risk of recidivism was anchored by several actuarial risk assessment tools that predict the probability of re-offending. These tools are complementary, measuring different aspects of an offender’s history, and therefore produce a range of scores measuring the probability of re-offending. The use of these tools is part of accepted standards for forensic psychiatrists.

[84] The actuarial tools used to assess Mr. Wesley include the Violence Risk Appraisal Guide (VRAG) which applies when the predicate offence was a non-sexual violent offence; the Sex Offender Risk Appraisal Guide (SORAG) and STATIC99-R which apply when the index offence was a sexual offence. The HCR-20 tool was also used to analyze risk of re-offending. All three tools incorporate the Psychopathy Checklist – Revised (PCL-R) which is also used to predict risk of recidivism and compliance with community supervision and treatment responsiveness.

[85] Mr. Wesley scored in approximately the 88th percentile on the PCL-R as compared to a reference sample of North American offenders, meaning that 88% would have a lower score than Mr. Wesley. Dr. Klassen described Mr. Wesley’s score as significant, indicating “difficulties with general and violent recidivism, and treatment responsiveness….”

[86] Next, Dr. Klassen calculated Mr. Wesley’s scores on the SORAG and the STATIC99-R to assess risk of sexual recidivism. His SORAG score placed Mr. Wesley in the 93rd percentile; however Dr. Klassen qualified the impact of this result, indicating that the “outcome data is now somewhat dated, base rates of violent recidivism have declined, and this may be a slight overestimate.”

[87] By comparison, Mr. Wesley’s score on the STATIC99-R places him approximately in the 80th percentile compared to standardized samples. Dr. Klassen opined that the STATIC99-R outcome data is more current than the SORAG results. Individuals with comparable scores re-offend at a rate of approximately 40% over ten years of opportunity. Dr. Klassen commented that this score places Mr. Wesley at “a little less than two times the risk of the ‘average’ sex offender, as regards recidivism.”

[88] Dr. Klassen used the VRAG and the HCR-20 to assess the risk of non-sexual violent offending, including in the domestic context, as has occurred in Mr. Wesley’s case. Mr. Wesley’s scores on the VRAG places him in approximately the 90th percentile of risk compared to a standardized sample. However, Dr. Klassen admits that this may be a slight over-estimate.

[89] Mr. Wesley’s scores on the HCR-20 vary between 28 and 32, depending upon future release conditions and possibly his response to those conditions. This instrument does not produce a percentile score. Instead, Dr. Klassen described Mr. Wesley’s score as moderately high to high (similar to his VRAG score). Dr. Klassen reports that one study concluded that individuals with scores of 28 – 30, released from penitentiary re-offended at a rate of 69% over approximately 7.5 years of opportunity; by comparison individuals with scores of 31 and above re-offended at the rate of 93% under the same circumstances.

[90] Dr. Klassen concluded that Mr. Wesley “is at high risk of serious (sexual or violent) recidivism in the extra-domestic or domestic context. He is at moderately high risk of sexual recidivism alone.” However, he notes that the risk assessment tools do not predict the severity of re-offence. It was his opinion that “a history of aggressive behaviour is a good predictor of future behaviour, all else being equal.”

[91] Significantly, Dr. Klassen believes that Mr. Wesley is at high risk of violent recidivism for ten years, but observed that the risk will go down when he is in his fifties and sixties. He noted that an offender’s values don’t change with age but the offender becomes less likely to act on them. He added that risk of offending is “front-loaded;” that is, offending is not evenly spread within the ten year time frame. He commented that significantly more offenders offend within five years.

[92] In assessing Mr. Wesley, Dr. Klassen also offered his opinion concerning a psychiatric diagnosis. To provide a context, Dr. Klassen noted that Mr. Wesley came from an extremely troubled family in a troubled, chaotic community. Both community and family suffered from relocation and the experience of the Indian Residential School. Mr. Wesley’s biological parents were alcoholic. As a child, Mr. Wesley experienced many childhood adversities, including witnessing violence, experiencing loss, sexual assault, neglect, and a profound sense of lack of safety.

[93] Dr. Klassen believes that these experiences shaped Mr. Wesley’s character and informed his approach to and interaction with others. He stated, “He is trapped in a psychological cage of traumatic childhood and his own violence.” In other words, Mr. Wesley sees the world as a hostile place, one in which he must be prepared to respond to hostility with confrontation, if not with violence. This perception allows Mr. Wesley to justify his offending. One of his triggers for violence is negative comments about his family.

[94] In Dr. Klassen’s view, Mr. Wesley’s distressing upbringing may account for his adult experiences such as depression and loss of hope, masked by anger and/or substance intoxication. Dr. Klassen also considered the effect of in utero exposure to alcohol and early use of inhalants as well as multiple head injuries as potentially affecting his cognitive functioning. Despite Mr. Wesley’s very limited early education, he has upgraded his education while in custody.

[95] Notwithstanding the difficulty in his formative years, it was Dr. Klassen’s opinion that Mr. Wesley is strongly connected to his indigenous heritage and his First Nation Territory. Recently, despite many years of incarceration, Mr. Wesley has functioned better at M[…]. He has been involved in paid employment, volunteer work, one-on-one counselling, and his periods of abstinence from alcohol have been longer than previously.

[96] Dr. Klassen concluded that Mr. Wesley suffers from a personality disorder, which is common among offenders, and a substance use disorder. He also offers a provisional diagnosis of Other Specified Personality Disorder, with antisocial personality traits. It is his opinion that Mr. Wesley is at high risk to re-offend. He observed in cross-examination that the safest vehicle for release of offenders is through a gradual, supervised release.

[97] Dr. Klassen testified that he would not advise Mr. Wesley being released to his home community now, where he is most attached, as there are no constraints on his behaviour there. He stated that the key concern was whether Mr. Wesley would be accountable to conditions. Previously, he has not liked constraints on his behaviour.

[98] During his assessment, Mr. Wesley did not admit that abuse of alcohol was an issue in his offending. Although Mr. Wesley has attended AA meetings while in jail, Dr. Klassen expressed that this program is not a skills-based treatment. Some of Mr. Wesley’s serious offending has occurred when under the influence of alcohol; for example, during the predicate offence, and offences in 2008 and 2011, his behaviour was disinhibited and opportunistic as a result of drinking.

Is Mr. Wesley a Dangerous Offender?

[99] If the criteria set out in s. 753 of the Criminal Code are met, the Code requires the judge to find the offender to be a dangerous offender. There is no discretion.

[100] In this case, the requisite consent of the Attorney General has been obtained for the application.

[101] It is not contested that sexual assault is a serious personal injury offence as defined in s. 752 of the Criminal Code. As I have said, Mr. Wesley was found guilty of penile vaginal intercourse with an 18 year-old victim when she was unconscious or seriously incapacitated by the effects of alcohol.

[102] Section 753(1)(a)(i) asks whether Mr. Wesley has demonstrated a pattern of repetitive behaviour, of which the predicate offence forms a part, that shows a failure to restrain his behaviour and a likelihood of causing death or injury or inflicting severe psychological damage by the failure in future to restrain his behaviour.

[103] The defence argues that common assault, such as spitting, does not form part of a pattern. I agree with this submission. Minor assaults are not proof that Mr. Wesley should be considered a dangerous offender.

[104] The defence argues that the Crown has not proven that Mr. Wesley’s record shows a pattern of repetitive or persistent aggressive behaviour as described in ss. 752.1(2)(a)(i) and (ii) of the Criminal Code. The defence submits that there is no pattern because some victims were domestic partners while others were not; some victims were men, while others were women; not all offences involved the consumption of alcohol; and not all offences involved serious physical or psychological harm.

[105] The defence also contends that if there is any pattern, it shows that Mr. Wesley offends less as he ages, and that his offences are less severe. The defence also argues that the gaps in Mr. Wesley’s record demonstrate that he is better able to restrain his conduct.

[106] The first consideration is whether Mr. Wesley’s criminal record shows a pattern of behaviour. I have concluded that it does. A very significant number of his convictions are for serious assaults or threats of harm. The degree of violence inflicted or threatened is striking. These are not trifling assaults. Often his victims required medical attention. The following assaults or threats stand out as part of the pattern:

(a) 1986, when he was just 17, Mr. Wesley and other youths beat a man with a garden rake, cutting him in the process. Mr. Wesley cut the victim’s back with a knife to the extent that more than 200 stitches were required to close the wounds. He was convicted of aggravated assault.

(b) February 28, 1989, Mr. Wesley committed an aggravated assault. While the particulars of the offence are not in the record, the nature of the charge is serious;

(c) October 28, 1990, Mr. Wesley committed the offence of assault causing bodily harm. He hit the victim in the head, fracturing his jaw in two places and leaving him with various lacerations to the head. The victim was taken to hospital in Sioux Lookout and then transferred by air ambulance to Thunder Bay;

(d) May 20, 1992, Mr. Wesley beat Ms. Roundhead, who was four months pregnant, so severely that she suffered a severe concussion, her cheekbone was cracked, her face was badly swollen and her eye was so damaged that it had to be surgically removed. She was transported to Winnipeg for treatment. In the course of the assault, he grabbed her hair, put her on the ground, kicked her in the neck, then tried to kick her in the stomach and the leg.

(e) May 20, 1992, Mr. Wesley broke into a man’s bedroom and punched and kicked him. His victim suffered a swollen nose, lips, a sore jaw, and required stitches on his chin.

(f) On January 24, 2001, he punched Mr. Kwandibens in the mouth, then punched Elizabeth Wesley, knocking her to the ground and kicking her in the chin. Ms. Wesley’s face was bruised and swollen, her nose was out of alignment, and there was a large pool of blood on the floor. She required medical attention.

(g) November 28, 2002, he uttered death threats to an officer who arrested him;

(h) November 5, 2005, he threatened to hang some youths who broke into his residence;

(i) July 19, 2008, while bound by the peace bond protecting Ms. Hudson because of prior aggression towards her, Mr. Wesley hit her, pulled her hair out, and threatened to throw her in the campfire. He told her that if he was jailed, he would have others get at her;

(j) December 2, 2008, he resisted police attempts to arrest him. He kicked an officer in the face. While he was being transported, he kicked the vehicle cage with such force that he bent the frame of the window. While this is not a personal injury offence, it is indicative of the degree of force Mr. Wesley used. He spat at the officers and told one officer that he was going to put a bullet in his head.

(k) Finally, the predicate offence of sexual assault followed on October 12, 2012.

[107] With Mr. Wesley, violence is a constant. It is the mechanism by which he offends. It is the only response he knows. There is a pattern of spontaneous aggression or the threat of aggression toward anyone who gets in his way. For example, there are three assaults on police officers. It makes no difference whether Mr. Wesley is intoxicated or sober, in prison or out. Most recently, he assaulted another prisoner at the Kenora Jail in April 2013. He cannot restrain himself in any case.

[108] His relationship to the victim is also irrelevant. No one is safe from his angry outbursts. His victims include strangers, relatives, police officers, inmates, romantic partners, and even youth. Violence is Mr. Wesley’s response to social situations he does not like. He uses violence or the threat of violence to assert his dominance. That is the essence of the pattern. Mr. Wesley must dominate. He uses violence to do so. He learned violence as a social response. Despite attending an anger management program in penitentiary, he has not been able to apply the principles.

[109] Next, is sexual assault part of the pattern?

[110] The defence argues that the sexual assault, which is the predicate offence in this application, is not part of the pattern. The defence submits that the sexual assault did not result in serious physical injuries or serious psychological harm. I do not agree with either submission. Sexual assault is inherently aggressive. It is not about sex; it is about domination. For good reason, sexual assault is defined in the Criminal Code as a serious personal injury offence. In this case, the assault represents an expansion of Mr. Wesley’s aggressive criminal behaviour aimed at dominance. On several previous occasions, he has used physical violence to dominate women, but his victims have not been limited to women. Sexual assault is but a variation on the dominance theme.

[111] In my view, the defence submission minimizes the consequences of the sexual assault for the victim. The assault was a substantial violation of the victim’s person. When the victim’s friends interrupted the sexual assault, they found her on the floor of an unheated shed, cold to the touch, barely conscious and soaking wet. She was difficult to rouse. It was fortunate that she was found when she was; her friends were rightly concerned that she might suffer from hypothermia.

[112] The victim suffered physical and psychological injuries and required medical treatment. She indicated that she feels disgusted when the subject of the assault is raised and scared at the prospect of Mr. Wesley being released, not knowing what will happen. She expressed that she wants to leave her home community. The pre-sentence report also indicated that the victim’s family has had difficulty coming to terms with the assault. The impact of the sexual assault amounts to severe psychological harm for the victim. It has substantially interfered with her dignity and her feeling of safety in her home community.

[113] I therefore conclude that the predicate offence is part of the pattern of aggressive behaviour aimed at dominance. It represents an expansion of Mr. Wesley’s criminal conduct. However, it is not the only time that a woman has been his victim.

[114] Has Mr. Wesley failed to restrain his violent behaviour such that there is a likelihood that he will cause death or injury to other persons, or inflict severe psychological damage on other persons, through failure in the future to restrain his behaviour?

[115] The defence contends that the degree of violence Mr. Wesley exhibits is decreasing. I do not agree. The most recent conviction was a serious sexual assault.

[116] Mr. Wesley’s assault on another inmate in 2013 for which he was disciplined, and his tantrum in 2014, that prompted him to throw his meal at the wall of the Kenora Jail, do not suggest that the rage that generates his aggression has abated.

[117] Nor do I agree that there are significant gaps in Mr. Wesley’s offending. It must be considered that he was incarcerated on several occasions with charges pending, from which no convictions resulted. During those times, he was removed from the community and the possibility of offending. In those circumstances, Mr. Wesley cannot argue that he voluntarily restrained his behaviour. It is a sad reflection on the persistence of Mr. Wesley’s violent offending that at age 46, he points to a gap in his record of two years and three months (July 10, 2009 – October 24, 2011) to argue that he is not dangerous.

[118] Has the Crown proven beyond a reasonable doubt that there is a likelihood that Mr. Wesley will cause death or injury to other persons, or inflict severe psychological damage on other persons, through failure in the future to restrain his behaviour? I conclude that it has.

[119] Using violence or the threat of violence to control a situation is the pattern underlying Mr. Wesley’s criminal record. As his record indicates, the pattern repeats. The length of his criminal record and the severity of the injuries inflicted over a long period of time show that Mr. Wesley has not been able to restrain himself in the past from using violence or the threat of violence to get what he wants. There is every indication that he will be unable to restrain himself from doing so in future for several reasons:

(a) Mr. Wesley has not taken effective steps to learn to control his behaviour;

(b) he has not learned alternate responses to conflict;

(d) he does not express remorse for his conduct.

[120] Alternatively, s. 753(1)(a)(ii) asks whether there is a pattern of persistent aggressive behaviour by the offender, of which the predicate offence 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 behaviour.

[121] For reasons set out above, a pattern of aggressive criminal behaviour is established. The frequency and severity of assaults or threats cited in this discussion meets the criteria for behaviour that is both persistent and aggressive. The pattern of aggression has continued unabated since Mr. Wesley was 17. The predicate offence of sexual assault is, as I have said, part of the pattern of criminal aggression aimed at dominance. It is an expansion of Mr. Wesley’s aggressive behaviour.

[122] Does the persistent aggressive behaviour show a substantial degree of indifference on Mr. Wesley’s part respecting the reasonably foreseeable consequences to other persons of his behaviour? The answer to this question is also yes.

[123] Mr. Wesley expresses no remorse for his conduct. He is indifferent as to whether his rages upset the Elders in his community, his neighbours, or his relatives. He is indifferent as to whether the use of a weapon, such as a rake or a knife, might inflict grievous bodily harm or even death. It is fortunate that some of his attacks have not fatally injured his victims, but this is not a result of restraint on Mr. Wesley’s part. One victim has lost her eye. It is a reasonable inference that this injury produced severe psychological trauma.

[124] Mr. Wesley is indifferent to whether trying to kick a pregnant woman in the stomach might kill or harm the fetus. He is indifferent as to head injuries that may result from kicking or punching others in the head. Many of the assaults he has perpetrated have occurred in remote communities where medical facilities are minimal. Several of his victims had to be evacuated to other centres to receive medical care for their injuries. This does not seem to factor into Mr. Wesley’s foresight of consequences. His propensity for violence is mindless. He does not consider the reasonably foreseeable consequences.

[125] Finally, s. 753(1)(a) asks the court to consider whether the offender constitutes a threat to the life, safety, or physical or mental well-being of other persons on the basis of evidence establishing the criteria set out in subsections (i) or (ii). The answer to this question is also yes.

[126] As I have said, the assaults enumerated in para. 105 are not trifling. Frequently, the victims suffered very serious injuries. The injuries are both physical and psychological. As with the predicate offence, the impact of the violence may extend beyond the immediate victim. Given the degree of violence applied, it is surprising that no one has died.

[127] I therefore find and declare John Wesley to be a dangerous offender, pursuant to s. 753(1)(a)(i) and (ii) of the Criminal Code.

Sentencing

[128] Once the court has determined whether the accused is a dangerous offender pursuant to s. 753(1)(a) of the Criminal Code, it must consider what is the appropriate sentence in the circumstances.

[129] Section 753(4.1) of the Code requires the court to impose an indeterminate sentence unless certain circumstances apply. It states:

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.

The lesser measures prescribed in s. 753(4)(b) and (c) provide that a court may:

(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

[130] The Crown’s position is that an indeterminate sentence should be imposed. The Crown also concedes that Gladue factors must be considered as part of the sentencing.

[131] The defence position is that Mr. Wesley should be sentenced to a term of eight years for the predicate offence less credit for time in pretrial custody, followed by a Long Term Supervision Order for the maximum period of ten years. The defence submits that as Mr. Wesley ages, his aggressive criminality will “burn out” so that he will no longer be a risk to the public and need not be incarcerated. By the time this decision is rendered, Mr. Wesley will be 47 years old.

[132] The key consideration in sentencing under this provision of the Criminal Code is the adequate protection of the public from murder or a serious personal injury offence. The second critical consideration is whether there is evidence amounting to a reasonable expectation that a lesser measure will adequately protect the public from the commission of offences of this nature. The court must not sentence based on hope for rehabilitation if the evidence does not support such hope.

[133] As described earlier, Mr. Wesley has suffered serious trauma and loss as an aboriginal man. Nevertheless, I am not persuaded that the risk of serious re-offending can be managed by alternate measures. I rely on the pre-sentence report, the evidence of Dr. Klassen, and Mr. Wesley’s criminal record to reach that conclusion.

[134] In this case, the evidence is compelling that, at this time, Mr. Wesley is at high risk of serious sexual or violent re-offending. Dr. Klassen’s opinion is that Mr. Wesley is also at moderately high risk of sexual recidivism. In all likelihood, that risk will be at its highest in the next ten years, diminishing when Mr. Wesley is in his fifties and sixties. Should Mr. Wesley take advantage of the behavioural programming available in the federal penitentiary, it may be that his risk is sufficiently reduced to warrant release within that time frame.

[135] Mr. Wesley knew or should have known that repeated violent offending would lead to a dangerous offender application in his case. Regrettably, he did not take sufficient steps to control his offending. Dr. Klassen commented that while “feel good” counselling may ameliorate depression and anxiety, it does not reduce offending. He indicated that skills-based therapy is more effective in teaching a person how to regulate himself in order to avoid offending behaviour. It teaches a person to navigate his social environment.

[136] Risk-reducing counselling is only effective if an offender is committed to changing his behaviour. To date, Mr. Wesley has not been engaged in changing his own behaviour. Dr. Klassen characterizes Mr. Wesley’s approach to behavioural change as ambivalent. He has previously breached court orders and supervision in the community has been less than successful.

[137] On the contrary, he seems prepared to justify his behaviour. Community sources in the pre-sentence report describe him as “having a victim mentality.” He minimizes or blames others for his offending. He denies any role that alcohol may have in his offending. He believes that he is welcome back to his community any time. He has a very unrealistic perception of how his behaviour affects those around him.

[138] Mr. Wesley is attached to his home community, M[…] First Nation. However, the inhabitants are placed at risk by the degree of violence Mr. Wesley exhibits. There are only basic medical services available to the injured. The risk is higher there, because of remoteness and minimal medical resources, and the level of violence of which Mr. Wesley is capable, that in future, one of his victims will not survive.

[139] As well, the resources to supervise and control Mr. Wesley in M[…] are not available. The pre-sentence report concludes:

…he remains strongly connected to the values and beliefs of gang culture and considers this a very necessary aspect of his life. The subject does not acknowledge how this influence conflicts with the pro-social values and behaviours he is attempting to strengthen, undermines his positive efforts and interferes with his ability to sustain positive change.

Until the subject is able to satisfactorily address identified areas of concern, he is not considered to be suitable for community supervision.

[140] Dr. Klassen also warns about the risk of re-offending should Mr. Wesley return to M[…]. He states:

If this gentleman is to offend again, his offence cycle might present as follows. I would expect that this gentleman would want to return to his home community. While he’s shown greater stability there, latterly, he may be exposed to problematic peer associations, conflict, and emotional dysregulation, leading to return to substance use and intoxication. In this context his already limited problem-solving skills, and misattributions, may be further degraded and heightened, respectively, perhaps leading to further interpersonal violence, which may be non-sexual or sexual in nature.

[141] Mr. Wesley proposes that, upon release, and subject to the terms of supervision imposed, he would take up residence in Thunder Bay where treatment and monitoring facilities would be more available. This may be a realistic proposal but it does not guarantee that a change of scene will alter Mr. Wesley’s desire to dominate and his use of violence to do so.

[142] Mr. Wesley has undoubtedly suffered great disadvantage, being raised in a violent, chaotic community and in a violent, chaotic home. Nevertheless, his First Nation community has the right to be protected from the risk of his violence. So, too, does the larger community deserve to be protected from the risk of serious violence at his hands. Presently, there is no evidence that the risk of serious violence can be addressed by alternate means.

[143] Mr. Wesley is therefore sentenced to an indeterminate period of detention in a penitentiary, pursuant to s. 753(4.1) of the Criminal Code.

Madam Justice H.M. Pierce

Released: January 25, 2016

CITATION: R. v. Wesley, 2016 ONSC 408

COURT FILE NO.: CR-13-013