Court File and Parties
COURT FILE NO.: CR-14-18-0000 DATE: 2016, September 23
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Applicant – and – Richard Booth Respondent
Counsel: Gerard McGeachy, for the Applicant C. A. Morrow, Counsel for the Respondent
HEARD: August 15, 2016
REASONS
TAUSENDFREUND, J
Introduction
1This is an application by the Crown for an order under s. 752.1(1) of the Criminal Code of Canada remanding the Respondent for a period not exceeding sixty days to the custody of Doctor Scott Woodside for him to carry out an assessment on the Respondent at the Centre for Addiction and Mental Health.
Background
2The Respondent was found guilty by a jury on June 5, 2015, on two counts of robbery, one of a business on June 13, 2013 (“the Karten Metals robbery”) and one of a residence on July 1, 2013 (“the home invasion robbery”). The jury further found the Respondent guilty of two counts of conspiracy to commit robbery, one such count with respect to each of these two robberies.
3These counts on which the Respondent was found guilty are “designated offences” pursuant to s. 752(b)(xxiv) of the CCC for robbery and s. 752(d) of the CCC for conspiracy to commit robbery.
4Each of these four offences qualify as a “serious personal injury offence” (“SPIO”) under s. 752(b) CCC. It is on that basis that the Crown seeks a psychological assessment under s. 752.1 CCC. The Crown urges that there are reasonable grounds to believe that the Respondent “might” be found to be either a dangerous or a long term offender. The word “might” in s. 752.1(1) CCC sets the bar for an order under that section to remand the offender for a psychological assessment.
On application made under this Part after an assessment report is filed under ss. 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 s. 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 in the likelihood of causing death or injury to other persons, or inflicting severe physiological 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. . .
6The Respondent concedes that the home invasion robbery is a SPIO offence. However, he challenges the finding that his involvement in this robbery is a predicate offence for the finding of a “pattern of repetitive behaviour” as detailed in s. 753(1)(a)(i).
The Respondent's Criminal Record
7To determine if there is such a pattern of repetitive behaviour, I must turn to the Respondent’s criminal record and his involvement in these offences.
8A helpful outline is provided in the transcript of the sentencing hearing of the Respondent on June 17, 2005 before Byers, J. on the charge of robbery. The Respondent was represented by counsel who confirmed that he had reviewed the relevant documents of the Respondent’s criminal record and his involvement in those charges. The review by Crown counsel of the Respondent’s criminal record and his involvement in the charges on which he was found guilty and which form his criminal record was not challenged by counsel for the Respondent. Excerpts of the transcript of the Crown’s review of this information now follows:
Crown: . . . there are three convictions for robbery in 1998 out of Toronto, and I have tracked down the police investigations synopses that relate to those three conviction, as well as the Barrie conviction . . .
The Court: Are you content with that Mr. Girard?
Mr. Girard: Yes, Your Honour, I have seen all documents.
Crown: All of these … were robberies of banks. The Barrie … incident occurred August 28, 1995. There was an individual who went into the bank with a note, had a hold-up note demanding money from the teller. That was a man named Glen Tonge.
The police investigation included a statement ultimately from Mr. Tonge when he was arrested. They also had the hold-up note, which had Mr. Booth’s fingerprints on it, and evidence that the hold-up note, was written by Richard Booth.
The Toronto convictions. . . include two robberies that also occurred back in 1995. These convictions are registered in 1998, but two of the occurrences were in 1995 around the same time as the Barrie robbery. And you will see from the synopses that, in the one robbery that took place August 16, 1995, there was a hold-up note involved. Mr. Booth did not enter the bank, the co-accused did. Again it was the same Mr. Tonge. The note read “This is a robbery. I have a gun. I want you to fill the bag, all high bills. Do as I say and no one will get hurt”. . . Mr. Booth’s fingerprints were found on that note. He pleaded guilty to that.
August 29, 1995 was a bank robbery at the Scotia Bank. Again there was a hold-up note, “You’re being robbed. I have a loaded gun which I will use unless you fill the bag full of high bills”. . . Mr. Booth was outside of the bank. They had stolen a van that was used as a getaway vehicle and his fingerprints were in the van.
The third robbery occurred May 13, 1998. That was also a bank robbery in Toronto. . . the co-accused entered the bank. . . Booth stood watch near the bank. He entered the bank, stated “This is a robbery”, lifted his shirt revealed a black hand gun to the teller, and the teller complied and handed Menard $1,415.00.
. . .in 1996 in Burke’s Falls … assault with a weapon, a break, enter and theft, and uttering threats, one year on each concurrent. . . in essence it was a robbery. It was a break and enter into an Arctic Cat dealership where the victims, the husband and wife, are actually residing above that store, went out, confronted Mr. Booth and his brother, and in an attempt to protect their property, the husband was hit over the head with a two by four. . . the husband was injured.
9The Crown then turned to the facts of that robbery:
Even though Mr. Booth did not go into the bank in this case … it is clear that he is the directing mind of the robbery. . . [referring to the Victim Impact Statement] given by the bank teller on this robbery, the Crown states: … she describes how completely traumatised and terrorized she has been as a result of that. She said it has changed her outlook on life. The Crown then quotes from the teller’s Victim Impact Statement: “My emotions run high and I find myself very emotional at times, but I never did before. . . . the event with the gun kept going through my mind. I have worked in the bank for 26-years and I have enjoyed all those years before now. I wonder if it is really worth all the risks you have to take nowadays. . . I had no doubt at the time that the gun was real. I really thought when I got down on the floor that he really was going to shoot me. All I could think of was, please don’t shoot me in the head. Maybe the arm, the leg, but not in the head.”
10The Crown then continued with her submissions:
. . . another aggravating factor is the drugs – drug subculture at work here in this case. . . Mr. Booth controlled his accomplices or drivers by drugs by supplying crack cocaine, according to their evidence.
11In sentencing the Respondent to six years on this charge of robbery, Justice Byers said the following to the Respondent:
… all those prior convictions for robbery and he is still involved in the same business. . . . it is aggravated by the fact that he is a drug dealer who is feeding all these people cocaine and then making them dependant on him and then using them to commit further crimes.
The Predicate Offences
12I now turn to the facts of these four predicate offences on which the Respondent was found guilty.
13Karten Metals is a scrap metal dealer in the City of Quinte West. Several days before the robbery, phone calls were made to Karten Metals which suggested that a meaningful amount of copper wiring had been obtained during the course of a represented construction project and that it would be delivered for sale to Karten Metals on the day in question. That was not so, but was designed to have Karten Metals arrange to have on hand a large amount of cash. It had the desired result.
14On June 13, 2013, Ms. Beaulieu, a co-accused, placed a 911 call from a telephone booth at the opposite side of town from the Karten Metals business. She gave the fictitious account of having just observed a violent domestic incident. That report had the intended effect of diverting most if not all of the then available police cruisers to the other end of town from Karten Metals. Within minutes of that telephone call, Taylor Scheel, another co-accused and in disguise drove into Karten Metals in a borrowed van. Licence plates had been exchanged. He had in hand an object that resembled a hand gun. It was intended to and did intimidate the clerk at Karten Metals whom Scheel confronted. He left with $10,400.00. While making his getaway, Scheel was confronted by two workers at Karten Metals who attempted to prevent the van from leaving. Both were flung away from the van, as Scheel sped away. He drove 2 or 3 kilometres to the arranged rendezvous point. The getaway car was waiting. That included the Respondent. During the sentencing of the Respondent’s co-accused, I stated that this robbery was the product of a large degree of planning and deliberation for a criminal venture, carried out in a small town. It had the earmarks of sophistication not often seen in this area.
15Some two weeks later and on July 1, 2013, a home invasion unfolded at the apartment of the Legere brothers. They were both in their early sixties and lived in a three-bedroom apartment in the City of Quinte West. The Respondent and another male burst into the apartment. The Legere brothers knew neither one. Each of these men had a knife in hand. The Respondent held a knife to the stomach of Ray Legere and said, “I hear you have money, don’t lie or I will use the knife.” He then pulled up his shirt to reveal a hand-gun stuck in his pants. He threatened Ray Legere with these words, “If you make me use it, I will.” Both men left with about $6,000.00 in addition to items such as a laptop, watch, ring, and a quarter of a pound of marijuana. Upon leaving, one of the two men warned, “If you look out the window, I will not like it and I will return.” Both of the Legere brothers were traumatized by the incident. One left for several months because of it.
The Law
16The Ontario Court of Appeal in R. v. Szostak [2004] O.J. 95 considered the meaning of the phrase “a pattern of repetitive behaviour” in s. 753(1)(a)(i). The Court quoted with approval these paragraphs in R.v.Hogg, 2011 ONCA 840:
- and 43. ...the pattern of criminal 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…the offences need not be the same in every detail…
17Referring to the required number of offences to constitute a “pattern of repetitive behaviour”, the Court in Szostak noted at para 57 the need for remarkable similarity where only two offences were involved but that “fewer exact similarities were needed” where four offences were involved.
18Justice O’Marra in R. v. Valle-Quintero, [2015] OJ No 5219 considered what would constitute “a pattern of repetitive behaviour”. At paragraph 58 he cited with approval the decision of Karakatsanis, J. (as she then was) in R. v. Tremblay, 2010 ONSC 486:
- … “to constitute a pattern, there must be common-element in the behaviour, something that connects prior incidents together in a manner that justifies considering them as a whole. A pattern of behaviour is something more than a mere history of criminal activity. Similarity can supply the requisite degree of connection. However, similarity…can be found not only in the types of offences but also in the degree of violence threatened or inflicted on the victims…[and]similarity in terms of kinds of offences is not crucial when then incidents of serious violence and aggression are more numerous…”
19Justice O’Marra further stated at para. 59:
“For a pattern to exist there must be a number of significant relevant similarities between each example. There may be some differences, but if the key significant elements remain in place, there is a pattern: See R. v. Newton, [2006] OJ No 1108 (S.C.J.) at para. 9 ”
Analysis
20Prior to being found guilty on these four predicate offences, the Respondent had been convicted on five previous counts of robbery, and one count of home invasion, which was described as having similarities to a robbery. My review of the underlying facts that gave rise to these convictions of robbery lead me to conclude there are a number of similarities to the predicate offences. These similarities are:
a) robberies of banks and businesses; b) threats of violence with a real or imitation hand gun; c) a degree of planning; d) involvement of co-accused; e) the Respondent was generally not the prime actor.
21Although the Respondent in many of his robbery convictions was not the one who personally carried out the robbery, he was either the central figure who orchestrated these robberies with the assistance of accomplices or was part of the planning process. In my view it matters little whether he was the main actor in carrying out these ventures, or the party who organized and/or orchestrated the plan. The impact of each robbery on the victims leading to possible physical or psychological harm was the same. The result in each case clearly qualifies as conduct, “endangering, or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person”, as the definition of the SPIO is defined in s. 752 CCC.
22My task at this stage is to determine if there are reasonable grounds to believe that Respondent might be found to be a dangerous offender under s. 753 or a long-term offender under s. 753.1 CCC.
23The threshold is very low, “in fact below the standard of balance of probabilities”: see R. v. Whitemore, 2011 ONSC 6976 at para. 14.
24At this stage, the Crown’s onus is to establish a possibility that the Respondent might be found to be either a “dangerous offender” or a “long-term offender”: see R. v. Whitemore, 2011 ONSC 6976 at para. 14.
Conclusion
25I conclude on the evidence and the history of the Respondent’s involvement in criminal activity and robberies in particular that there is a “reasonable possibility” that the Respondent might be found to be a “dangerous” or “long-term offender”.
26Accordingly, I order that the Respondent shall be remanded for an assessment under s. 752.1 CCC.
Justice W. Tausendfreund
Released: September 23, 2016