R. v. Wong, 2016 ONSC 6362

CITATION: R. v. Wong, 2016 ONSC 6362

COURT FILE NO.: CR-12-40000111

DATE: 20161118

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Applicant

– and –

NICHOLAS WONG

Respondent

T. Vogel, P. Garcia, for the Applicant

C.A. Morrow, for the Respondent

McWatt J.

RULING ON DANGEROUS OFFENDER APPLICATION

A. INTRODUCTION

[1]

Introduction

The Crown asks that Nicholas Wong be declared a dangerous offender and be sentenced to an indeterminate period of incarceration. If he is not found to be a dangerous offender, then he should be declared a long-term offender.

2The respondent was convicted by a jury in Toronto on February 23, 2012 of attempt murder with firearm x 2, discharge firearm with intent to wound and fail to comply with a prohibition order.

3These predicate offences began when the complainant, Mr. Duy Tran, arranged to sell two pounds of marihuana to Mr. Wong. The two men met while in custody. They agreed to do drug business together once released. The marihuana Mr. Tran was selling to the respondent was worth approximately $6,200. At approximately 4:30 p.m. on April 10, 2010, Mr. Wong met with Mr. Tran in the parking lot of an apartment complex in Toronto. Mr. Wong entered Mr. Tran’s vehicle where Mr. Tran’s friend, Mr. Park, was also seated. Shortly after their meeting for the purpose of the transaction, Mr. Wong grabbed one of the two bags of marihuana inside the vehicle. He then stepped out of the vehicle and fired a gun directly at Mr. Tran and Mr. Park. At the same time, two of Mr. Wong’s co-conspirators emerged from somewhere in or around the apartment complex and began shooting at the two victims as well. At least fourteen shots were fired from three different guns. Mr. Tran was shot in the leg. A bullet has remained lodged in his groin permanently, as its removal was deemed a medical risk. Mr. Park escaped without being wounded.

4The respondent was arrested on July 21, 2010 and has been in custody ever since. He is 30 years old (born June 23, 1986) and has a criminal record which includes both young offender and adult entries. Including the predicate offence, he has 22 criminal convictions since 2003. These offences include crimes of aggression, breaches of court orders, obstruction of police, drug possession, drug trafficking and multiple firearm related crimes.

5The Crown’s notice of this application was filed on May 28th, 2012, advising that the Attorney General for Ontario would be seeking an assessment order for the respondent pursuant to s. 752.1 of the Code.

6The s.752.1 hearing was held on June 12 and 13, 2013. A delay in the matter resulted when Mr. Wong changed lawyers after the trial and before the dangerous offender application was commenced. On August 9th, 2013, I granted the Crown’s s.752.1 application. The matter was then adjourned to January 13th, 2014 in order for Dr. Scott Woodside of the Center for Addiction and Mental Health (CAMH) to conduct the assessment and prepare a report.

7Dr. Woodside met with Nicholas Wong on November 8 and 18, 2013. On the advice of counsel, the respondent chose not to participate in the assessment.

8Dr. Woodside prepared a report pursuant to the s.752.1 Assessment Order. In that report, the psychiatrist concluded that Mr. Wong is a high risk for violent re-offence from a purely clinical perspective, as well as from an actuarial perspective. Further, he concluded that the respondent meets the risk portion of the dangerous offender criterion, from a psychiatric perspective. He also opined that, from a psychiatric perspective, the respondent has shown a substantial degree of indifference respecting the reasonably foreseeable consequences of his behavior.

9Mr. Wong did participate in an assessment for this Court by his psychologist, Dr. Giorgio E. Ilacqua. In his June 8, 2015 Psychological Risk Assessment, Dr. Ilacqua concluded that Mr. Wong posed a moderate/high risk for future violent offences and behaviours, but he was not “inherently dangerous. Dangerousness is however a legal concept”. By that, he was referring to the fact that he made no findings related to the criteria in sections 753(a)(i) or (ii) of the Code, but has left it to this Court to decide if the thresholds in those sections have been met. Finding that the respondent does present a risk to re-offend, the doctor nonetheless concluded that the risks Mr. Wong poses could be managed with a determinate sentence and community supervision.

B. STATUTORY PROVISIONS: DANGEROUS AND LONG-TERM OFFENDERS

(a) Dangerous Offenders

[10]

Statutory Provisions: Dangerous and Long-Term Offenders

A Court shall find the offender to be a dangerous offender pursuant to section 753(1)(a) of the Criminal Code 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 behavior by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his behavior and a likelihood of causing death or injury to other persons, or inflicting serious psychological damage on other persons, through failure in the future to restrain his or her behavior,

(ii) a pattern of persistent aggressive behavior 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 behavior;

(iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint.

(b) Statutory Provisions: Long-Term Offender.

[11]

Statutory Provisions: Long-Term Offender

The long-term offender provision section 753.1(1) of the Criminal Code reads as follows:

Section 753.1(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that

(a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;

(b) there is a substantial risk that the offender will re-offend; and

(c) there is a reasonable possibility of eventual control of the risk in the community.

12Pursuant to section 753.1(3) of the Criminal Code, if the court finds an offender to be a long-term offender, it shall

(a) impose a sentence for the offence for which the offender has been convicted, which must be a minimum punishment of imprisonment for a term of two years; and

(b) order that the offender be subject to long-term supervision for a period that does not exceed 10 years.

13In the context of this application, I must find Mr. Wong to be a dangerous offender if:

1. The behaviour in the attempt murder with firearm x 2 and discharge firearm with intent to wound charges are a “serious personal injury offence” as defined in the Code;

2. Mr. Wong is established to constitute a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence of his past behaviour as set out in any one of the thresholds prescribed under s. 753(a)(i) or (ii).

14The Crown is relying on ss. 753(a)(i) and (ii) of the legislation and is required to prove patterns of behaviour. While what a “pattern” is may not be defined in the Code, the two sections set out the elements required for a finding that the respondent is a threat based on his past conduct or a pattern of behaviour (R. v. Neve, 1999 ABCA 206, [1999] A.J. No. 753 at paras 106 to109).

15In s. 753(a)(i), the elements are the following:

1. A pattern of repetitive behavior;

2. The predicate offence must form part of that pattern;

3. That pattern must show a failure by the offender to restrain his behavior in the past; and

4. That pattern must show a likelihood of death, injury or severe psychological damage to other persons through failure to restrain his behavior in the future.

16In s. 753(a)(ii), the required elements are:

1. A pattern of persistent aggressive behavior;

2. The predicate offence must form part of that pattern; and

3. That pattern must show a substantial degree of indifference by the offender respecting the reasonably foreseeable consequences of his behavior.

17If the Crown proves beyond a reasonable doubt that these criteria have been met and Mr. Wong is declared a dangerous offender, then I must, pursuant to s. 753(4.1), impose an indeterminate sentence of detention in the penitentiary unless I am satisfied by evidence adduced during 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”. Those two subsections would allow me to impose a determinate sentence fitting for the offences for which Mr. Wong has been convicted (as long as it is a minimum punishment of two years imprisonment) plus a long-term supervision order for no more than 10 years or impose a sentence for the offence for which the offender has been convicted.

18Counsel have agreed that if I do not find Mr. Wong is a dangerous offender and sentence him to an indeterminate sentence, then they will provide further submissions about what sentence should be passed whether he is found to be a dangerous offender or a long-term offender.

C. ISSUES

[19]

Issues

The defence concedes that the predicate offences meet the definition of a “serious personal injury offence”. And, I have previously found the same in my ruling on the s. 752.1 Order for Assessment on August 9, 2013. Therefore, the first part of the criteria set out in s. 753(a) has been satisfied.

20The defence contends, however, that the criteria for a dangerous offender status have not been established in that there is no “pattern of repetitive behavior” or “pattern of persistent aggressive behavior” by the respondent, of which the offence for which he has been convicted forms a part.

21The defendant also objects to the use of hearsay institutional, educational, court and probation documents or evidence of wiretap interceptions to establish a pattern of behavior on the part of the respondent.

D. HEARSAY EVIDENCE AT THE HEARING

[22]

Hearsay Evidence at the Hearing

The application is a sentencing. The dangerous offender legislation requires a court to focus on the person (and all relevant circumstances relating to what that person has done) and not simply on number of convictions” (R. v. Neve, supra at para. 7). In Neve, the Alberta Court of Appeal noted that for a court to decide whether the various requirements of s. 753(a) have been met, it must have the context in which an offender committed past criminal conduct as that information informs whether there is a pattern of conduct and whether the behavior will continue in the future as a result of the offender’s failure to restrain or his substantial indifference (para. 118).

23Three areas of evidence will generally be considered in determining whether a pattern of conduct falling within the threshold requirements of s.753 has been established. The potential evidence is: 1) the offender’s criminal acts and criminal record; 2) extrinsic evidence relevant to those past acts and the circumstances surrounding them; and 3) psychiatric reports opining as to that conduct (Neve, supra, para. 123).

24The Supreme Court of Canada, in R. v. Jones 1994 Carswell BC 580 at paras. 127-130 at pp. 289-90, stated that as much evidence as possible should be before the court in a dangerous offender hearing in order for the courts to be able to protect the public, to impose the most appropriate penalty for the particular offender and to accurately evaluate the danger posed by the offender.

25The range of evidence, while broad, is not however unlimited. The evidence must be relevant. “Relevant evidence is evidence which tends to prove that a fact in issue is more likely than not” (R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577).

26The Crown in this application provided notice and disclosure of the records it adduced at the hearing.

27This court is obligated to look at Mr. Wong’s actions in the past to assess whether there is a pattern of behaviour as outlined in s. 753(a)(i) and/or (ii). It would be impossible to do so without reference to the various records produced by the Crown outlining Mr. Wong’s history.

28Wiretap evidence was presented at the hearing which contained intercepted communications between Mr. Wong and other persons, tending to show his involvement in criminal acts. Detective Douglas Backus of the MTPS was presented and accepted by me as an expert in street gang membership and the types of criminal activities associated with such membership. His evidence is relevant to both inquiries regarding “pattern” under ss. 753(a)(i) and (ii).

E. BACKGROUND FACTS

1. The Criminal Record (Appendix A and B)

[29]

Background Facts

As I have already outlined, including the predicate offence, the respondent has 22 criminal offences since 2003. The offences are summarized as follows:

i) Crimes of Aggression

30Nicholas Wong’s first finding of guilt was on May 26, 2000 when he was thirteen years old. Mr. Wong pled guilty to the charge of threatening bodily harm after threatening his mother on two separate occasions. On October 21, 1999, the respondent’s mother tried to calm him down after he was slamming doors in the house. He responded, “Don’t touch me, I’ll shoot you, you better sleep with one eye open.” On January 12, 2000, the respondent became enraged and raised his fists to his mother’s face saying, “You don’t want me to punch you, because if I did I would really hurt you.” He received a conditional discharge and one year probation.

31In January of 2007, the respondent pled guilty to domestic assault and failing to comply with a recognizance. Following a dispute with his partner of four years, Ms. Robinson, Mr. Wong grabbed her by the arm and hair and attempted to pull her back into an apartment after she tried to leave. The respondent was sentenced to fifteen days in custody followed by one year probation,

ii) Breaches of Court Order and Crimes of Dishonesty

32Mr. Wong has violated court orders and lied to police. His criminal record contains convictions for fail to comply with recognizance, fail to comply with probation, fail to comply with a prohibition order and obstructing police. It can be summarized in the following chart prepared by the Crown.

Offence

Offence Date

Sentence

Theft under $5000

2002-08-20

C.D. & 12 months probation

(1) Fail to comply recognizance

(2) Fail to comply

probation

2004-11-26

2004-11-26

7 days (9 days PSC)

7 days (9 days PSC)

Fail to comply recognizance

2005-05-10

S.S. & 12 months probation

(1) Obstruct Peace Officer

(2) Fail to comply recognizance x 2

2005-06-01

1 day (28 days PSC

Obstruct Peace Officer

2005-06-02

S.S. & 12 months probation

Fail to comply recognizance

2007-01-08

15 days concurrent

(1) Fail to comply probation

(2) Obstruct Peace Officer

2007-02-27

2007-02-27

Concurrence with gun offence

Concurrence with gun offence

Fail to comply prohibition order

2008-11-14

Concurrent with gun & drug offences

Fail to comply prohibition order

2012-02-23

To be determined by this Court

iii) Firearm and Drug Offences

33On October 24th, 2003, the respondent pled guilty to the unauthorized possession of a fully loaded prohibited firearm. The charge stemmed from a police investigation subsequent to a 911 caller advising the police that a gun had been pointed at him by a person in a motor vehicle. The respondent was a passenger in the right front seat of a car. Two adult males were in the car. A loaded .32 caliber handgun was located on Mr. Wong. Another handgun, a “bored out” .22 caliber handgun (made from a starter’s pistol) was located under his seat. That gun was fully loaded. The driver of the car was arrested in possession of a large amount of marihuana in a plastic bag. In the bag were 15 small 1”x1” packets of marihuana, a bulk loose amount of marihuana in another bag and $640. The respondent was sentenced to 3 months deferred custody, a supervision order and 18 months probation (on top of 125 days of pre-trial custody).

34On June 2nd, 2005, Mr. Wong pled guilty to possession of a Schedule II substance (marihuana) and obstructing a peace officer. He was sentenced to a suspended sentence and twelve months probation.

35On February 27th, 2007, Mr. Wong was convicted of another firearm offence when he pled guilty to possession of a loaded restricted firearm, failing to comply with probation and obstructing a peace officer. The respondent attempted to flee from two police officers and in the process tried to discard a loaded handgun. He was sentenced to the equivalent of a 2 year and 5 month sentence, three years probation and a mandatory weapons prohibition.

36The offender was also convicted of possession of a schedule substance on November 15th, 2007 after police officers found him to be in possession of a small quantity of marijuana and cocaine. He was sentenced to fifteen days imprisonment.

37On November 14th, 2008, Mr. Wong pled guilty to charges of possession of a firearm or ammunition contrary to a prohibition order, weapons trafficking and trafficking in a Schedule I substance. These charges stemmed from the interception of his phone communications during which he repeatedly engaged in trafficking of firearms. The communications also revealed the offender offering to sell cocaine to an associate. Throughout the intercepted communications, Mr. Wong can be heard planning robberies as well as revenge against individuals who had robbed him. He was sentenced to the equivalent of 4 years and 7 months imprisonment.

38On February 23, 2012, Mr. Wong was convicted of the two counts of attempt murder with firearm which are the Index offences in this application. He was bound by a weapons prohibition order at the time of the offence.

39Since his first firearm and weapons prohibition order in February 2007, the respondent has trafficked in firearms and attempted to murder with firearms. In both circumstances, he has conspired to do so with others.

2. Aggravating Facts

i) Execution of Search Warrants During Project Kryptic

[40]

Aggravating Facts

The Crown called evidence in this hearing with respect to the circumstances of Mr. Wong’s arrest on the charges arising out of Project Kryptic. Det. MacPherson was one of the officers executing a search warrant at 265 Dixon Road, unit 562 on June 13, 2007. He testified that Mr. Wong was in bed with one of his girlfriends, Ashley Ceballo-Perreira, when the warrant was executed. An infant was also in the room at the time. Det. MacPherson testified that he found 5 rounds of .38 calibre ammunition, 41 rounds of 9mm ammunition and 4 rounds of .40 calibre ammunition, all wrapped in green bandana, in a shoe box just steps from a sleeping baby. Both Ms. Ceballo-Perreira and her roommate, Sarah McLean, were placed under arrest as a result of Mr. Wong having stored his drugs and ammunition at their home.

41A second search was conducted on June 13, 2007 at the home of the respondent’s mother, Pauline Wong. A box of ammunition was found in a jacket pocket in the hall closet. It contained 10 rounds of .38 calibre ammunition and 7 rounds of 9mm ammunition. Also located in the hall closet was a weigh scale.

ii) Photos of Nicholas Wong Posing with a Gun

42Other aggravating facts in relation to the execution of a search warrant for the predicate offences were provided during this hearing. DC Terry Hobor testified that Mr. Wong could not be found immediately after the attempted murder of Duy Tran. Police executed a search warrant at the home of Cora Brooks – one of the respondent’s girlfriends. DC Hobor observed photos of the respondent tucked into edges of a dresser mirror. In one of these photos, Mr. Wong was holding a firearm up for the camera - appearing relaxed and casual.

iii) The High Speed Chase / Dangerous Driving

43The offender was ultimately arrested on July 26, 2010 for the predicate offences after leading police on a high speed chase through a residential area of Toronto. Const. Mulville, an OPP officer who chased Mr. Wong, testified that he observed a mother pull her child back off the street as the respondent sped the vehicle he was driving around a corner. He ultimately abandoned the vehicle - a car belonging to his present girlfriend, Shayna Campbell. He then fled on foot into the home of an associate known to police. Once there, the offender changed his clothing, put on a black hoodie, black jeans and black t-shirt replacing the shorts and white t-shirt he had been wearing during the chase. When Const. Mulville went to the door, the respondent hid behind three women who gathered in the doorway. He was arrested and identified himself as Curtis Brown, with a date of birth of April 11, 1985. He maintained that deception until identification documents bearing his name were located in Ms. Campbell’s vehicle. Mr. Wong’s licence was suspended at the time.

iv) CFS Evidence and Firearm Linkages

44Christina Telizyn, an expert in ballistics from the Centre of Forensic Sciences (CFS) gave evidence about three firearms associated to Mr. Wong. The 9 mm ammunition found at the scene of the shooting of Mr. Tran and Mr. Park was associated to a specific firearm which had been used in 10 shootings both before and after the attempted murder of Mr. Park and Mr. Tran. One of those shootings was the 2011 murder of Mr. Alexander Kucovic.

45Another 9 mm shell found at the scene of the predicate offences was associated to a second firearm. That gun was linked to 3 other shootings before it was recovered from Aundrae Morrison, at the time of his arrest, on charges unrelated to the respondent.

46The gun recovered from Mr. Wong at his 2005 arrest, when he threw the gun away as police chased him, had, by then, been involved in the killing of two young men in Driftwood Crips territory.

3. Victim Impact Statement of Duy Tran

[47]

Victim Impact Statement of Duy Tran

Prior to the attempt murder, Mr. Tran knew Mr. Wong and trusted him. He told the Court in his V.I.S. that he recalls seeing the respondent shoot at him from close range through the door of his vehicle. Mr. Tran still has a bullet lodged in his left leg. Mr. Tran continues to suffer pain. He also has terrifying flashbacks of these events when he tries to sleep at night or when in the vicinity of the crime scene. Mr. Tran is less trusting than he was before and has a “wall up” when dealing with others.

4. Children’ Aid Society and Toronto District School Board Records

[48]

Children's Aid Society and Toronto District School Board Records

The Children’s Aid Society of Toronto (CAS) had minimal contact with the respondent and his family. The first, however, was in May of 1993 when the Society received an anonymous call that Ms. Pauline Wong was verbally abusive to her children and used physical discipline against them. CAS investigated this report and found that it was unsubstantiated.

49CAS also received a report on May 19, 1993, from Mr. Wong’s elementary school, Glen Park Public School. The caller expressed concern that Mr. Wong was absent too many times during the school year and that his home life may not be adequate. CAS determined that this was a school related problem and did not investigate.

50On June 13, 1993, the respondent was 7 years old. He told a teacher that his maternal aunt had pinched him on the penis and that this was a game that made him sad. When interviewed, the respondent claimed he had never made the allegation. CAS investigated and ultimately found that no abuse could be substantiated.

51On February 16, 2000, at age 13, Mr. Wong had been misbehaving at Oakdale Park Middle School. He was engaged in horseplay and running around on the school’s stage. A teacher told him to stop and when he did not, the teacher grabbed the boy by the arm. Mr. Wong reported that the teacher had grabbed him by the neck and thrown him to the ground causing an injury. According to the CAS worker who interviewed him, the respondent presented as a dramatic child who took pleasure in defying school rules and seemed excited at the possibility of suing this teacher and getting money.

52The respondent was also noted in CAS records as having “major behavioural issues” and was frequently suspended from school.

53Before the CAS file was closed, Mr. Wong was placed on probation for threatening his mother. A CAS worker spoke with Ms. Wong on June 23, 2000 (The offender`s 14th birthday). Ms. Wong told the worker that her son was “out of control” and she wanted him to be sent to a boot camp. Efforts were made to offer Ms. Wong support between March and July of 2000, however she did not respond to messages left for her and the file was closed.

54Toronto District School Board records show that Mr. Wong stopped attending school with any regularity after grade 9 and did not receive any further high school credits.

5. Probation Records

[55]

Probation Records

Mr. Wong was placed on probation several times over the years. Probation Officers provided examples of the respondent’s claims that he was going to school or working\looking for work as part of fulfilling his conditions while on probation.

i) Maureen Ennis

56While waiting to be sentenced for the offence of Possession of a Firearm with Ammunition, the respondent participated in an interview with Probation Officer, Maureen Ennis.

Ms. Ennis wrote a report based on the interview and recounted that Mr. Wong claimed that school was a “major part” of his life. Ministry records reveal that his attendance at school was almost non-existent and that he earned zero credits during this time period.

ii) Diana Baptista

57After his release for his first gun offence, Mr. Wong was supervised by Diana Baptista. The respondent told her that he was not working and was focusing on school. He also claimed that he had tried calling “all the schools” and that he could not register because they “did not answer the phone”. He failed to register for any referred programming, including “Broader Horizons” a program meant to assist in his rehabilitation.

58After she insisted that he abide by the conditions of his probation to work or attend school, Mr. Wong told Ms. Baptista that he wanted her “off his back” and would engage in some volunteer work to accomplish that. He continued to have a poor attendance record while on probation. When he attended, he presented with little motivation and without any proof that he had made efforts to work or go to school.

59On August 15, 2004, Mr. Wong was arrested for Obstructing a Police Officer and Possessing a Schedule II Substance. While on probation for these offences, he did not attend school, did not seek work nor complete programming meant to assist him.

iii) Mark Tucker

60Supervision of the respondent was transferred to Mark Tucker in October of 2004. Mr. Wong failed to report to appointments on several occasions. When the two finally met face-to-face on January 20th, 2005, Mr. Wong continued to claim that he wanted to find work. During the meeting, the respondent smelled of marijuana. He did not deny using it. Mr. Tucker asked him to provide a list of places where he had applied for work, but Mr. Wong could not. The respondent continued to claim that he would find work and, in other meetings that month, claimed that he had a job at an auto-body shop. When asked for details, however, the respondent said that he did not recall the name of the shop and had left proof he had the job at home.

61Mr. Tucker saw Mr. Wong again on February 3, 2005. The offender’s demeanor was confrontational. He had again forgotten the proof of employment at home and insisted that he did not need to go to school since he was working. After being pressed to produce proof of employment in order to comply with the conditions of his probation, Mr. Wong then claimed that his job had “not worked out”. Mr. Tucker insisted that the respondent had to find work or go to school. At this demand, Mr. Wong became confrontational, aggressive and angry. Mr. Wong’s behavior was so severe that Mr. Tucker had to terminate their meeting and asked him to leave. The offender refused and it was only when Mr. Tucker said he would call police that Mr. Wong complied. Mr. Tucker testified that, in his experience, this sort of confrontation is not common among young people on probation.

62Mr. Tucker had little interaction with Mr. Wong after the February 2005 confrontation, but when they did meet, the respondent again claimed that he had a job but provided no proof. He also claimed that he was babysitting his cousin’s young child and produced a hand-written note from Ann Dreen Burke as proof. Shortly after, Mr. Wong was re-arrested on charges of Failing to Comply with a Recognizance (x2) and Obstructing Police.

63Toronto District School Board Records show that Mr. Wong did not attend school during 2004. He was 17 years old at that time.

iv) Adult Probation Supervision and Gina Magnante

64The respondent continued to go in and out of correctional institutions throughout the years 2005 to 2007. When not incarcerated, he was on probation, but his prognosis for success while on probation was reported as poor given that he continued to re-offend.

65He continued to ignore conditions of his probation while being supervised as an adult. He was referred to a YMCA pre-employment program which he did not attend. He did not register for any schooling. He did not register in the Partner Abuse Response program as directed and he repeatedly missed appointments with his probation officer, Gina Magnante.

66During appointments he did attend, Mr. Wong blamed police for his problems with the criminal justice system and did not register in the Counterpoint – a program he was referred to which was meant to offer him support in the community.

67Mr. Wong was re-arrested on June 14, 2007 for charges arising out of Project Kryptic. In her transfer memo, Ms. Magnante commented that the offender was evasive, cocky and unaccountable for his whereabouts and activities. This was the respondent’s last probation supervision period.

6. Institutional Records

[68]

Institutional Records

Nicholas Wong has continued offending, even while incarcerated.

i) 2003 (Youth Custody)

69On July 23, 2003, Mr. Wong was incarcerated at TYAC, having been sentenced for Unauthorized Possession of a Prohibited Firearm a month earlier. There, he was found guilty of participating in a group assault on a young person who had been labelled a “rat”.

ii) 2005 (Don Jail)

70During his next period of incarceration for possessing a loaded firearm while he was on probation (June 26, 2005), Mr. Wong was re-incarcerated at the Toronto Jail. While awaiting trial for the charges of Possession of a Loaded Restricted Firearm, Fail to Comply with Probation and Obstruct Police, the respondent was found guilty of passing contraband marijuana and tobacco through designated fire doors at the jail. While he entered a guilty plea to this offence, he also attempted to minimize his participation in it by denying that he knew what was in the envelopes with the substances. At the sentencing at this Court for the offences, he told Madam Justice Croll that he was “trying to change” and “trying to put this all behind me”. The respondent was moved to a different unit as a result of the Misconduct.

iii) 2007 (Don Jail, Maplehurst and Mimico)

71A short time later and out of custody, Mr. Wong was overheard, on wiretapped conversations, conspiring to rob members of the public, traffick in firearms and narcotics and engage in organized crime. He was re-arrested on June 13, 2007 for Project Kryptic. While awaiting trial, Mr. Wong was found in possession of what Correction Officer John Ilika referred to as “Ghost Addresses” (i.e. various names, social insurance numbers, driver’s licenses and dates of birth). CO Ilika testified that all this information could be used for purposes such as obtaining a cell phone in someone else’s name. Mr. Wong was also found to have written the letter “C” on the cover of a notebook - a suspected reference to the Crips gang.

72On September 28, 2007, Nicholas Wong was observed to have a small lump in his sock. CO Ilika searched his sock and found him to be in possession of a note to another inmate. The note read:

“yo all I have is this and one for my self cuz I broke it in half. So I’m a make a wick jus light it 4 me. Please my nigga. Chris”

73Mr. Wong was instructed to return to his cell for a strip search after the note was found. While walking toward his cell he discarded a sock from his waistband. Upon searching the sock, CO Ilika found that it contained a small phone book, a small plastic wrapped package, a plastic wrapped lighter and a pencil. A further search of the materials in the respondent’s cell revealed that he was also in possession of 0.2 grams of marijuana and 0.1 grams of crack cocaine, a match striker and two rolling papers.

74This Institutional Misconduct also resulted in a criminal conviction for Possession of Marijuana and Possession of Cocaine for which he received a 15 day jail sentence.

75The same search of the respondent’s cell uncovered various newspaper articles with respect to the arrests in Project Kryptic and firearms offences. A newspaper cut-out of an Uzi machine gun was also located in the cell. No Misconduct was noted for these items.

76CO Ilika next detected the smell of marijuana from Mr. Wong’s cell on October 29, 2007. He searched the cell and found a plastic glove that was missing two fingers and an envelope that had gold foil on the inside. The officer testified that both of these items could be used to traffic narcotics. No official Institutional Misconduct was laid.

77Mr. Wong’s behavior while in custody also included an instance of mischief when he used garbage to plug a cell toilet. He was found guilty of the Misconduct and was sentenced to two weeks without the right to purchase items from the Institution canteen.

iv) 2008 (Maplehurst and Mimico)

78When the respondent was sentenced on November 14, 2008 for the offences arising from Project Kryptic, an LSI-R Report was authored by the classification department of the detention centre. The report noted that some of the correctional officers who had dealt with Mr. Wong found him to have poor behaviour. Some of them did not want the offender housed at the Maplehurst Correctional Complex because of it. The Mimico Complex was chosen as his next institution as a result.

v) 2009 (Mimico and Central North)

79On June 7, 2009, Mr. Wong was again found in possession of contraband material when a search of his pocket produced 6 broken cigarettes rolled up in brown paper. He claimed that he had found them on the floor left there by an unknown inmate.

80On August 26, 2009, staff at Mimico C.C. requested to have the respondent transferred to Central North Correctional Center because his behavior made him “no longer suitable for a dormitory setting”. It was recommended that he serve the balance of his sentence in a “more secure environment”. It seems clear from a hand-written notation on the Request for Re-Classification that staff at the Mimico C.C. were so eager to remove the offender from their facility that they were prepared to physically transfer him themselves.

vi) 2010 - 2012 (Don Jail and Maplehurst)

81The respondent was released from custody on December 24, 2009. Within 4 months, he had attempted to kill Duy Tran. He was re-arrested on the predicate offences on July 26, 2010. He was initially housed at the Don Jail after his arrest.

82On September 27, 2012, inmates were refusing to comply with the instructions of CO LaBarbera to move cells for the bedding down process. Mr. Wong was asked to enter his cell. He refused, saying that he was cleaning. CO LaBarbera advised that cleaning time was over. In response, the respondent walked over to his cell, removed his slippers and replaced them with his shoes. CO LaBarbera testified that this was an aggressive gesture meant to instigate a physical confrontation. Mr. Wong then slammed his right fist into his left hand and said “this is not Y.O. bro, I’m ready to bang out”. Mr. Wong was ready to engage in a physical fight with the officer. He later tried to minimize his behavior by placing blame on the officer who, he claimed, had been rude to him.

vii) 2013 (Toronto Jail)

83In a June 3, 2013 occurrence report from the Don Jail, Mr. Wong was noted as having lashed out at another inmate by punching him in the face. Another inmate joined in the assault. CO Jao directed the inmates to stop fighting, but neither the respondent nor the other inmate complied. Only physical restraint by several correctional officers stopped the assault. Two of the officers were injured, one transported to the hospital. Mr. Wong was found guilty of a Misconduct for the incident.

84On August 6, 2013, Mr. Wong was again suspected of possessing narcotics while in custody when he set off an alarm on a Body Orifice Security Scanner (BOSS) chair. The respondent was taken off the chair and another inmate sat on it. That inmate did not set off the alarm. When the respondent was put back on the chair, he set off the alarm a second time. He was being transported here to this Court for the Ruling on the s. 752.1 Application. Mr. Wong was placed in a segregated dry cell but no contraband was ever found.

viii) 2014 to 2015 (Toronto West and Toronto South Detention Centres)

85In another incident on January 22, 2014, the offender again set off an alarm on the BOSS chair, but no contraband was found.

86On February 10, 2014, Correctional Officers at the Toronto West Detention Centre conducted a dynamic entry into an Inmate Living Unit where the respondent was housed. They produced an occurrence, noting that Mr. Wong displayed “poor behavior” during the search and was escorted out of the unit.

87CO Laura Ferguson testified on June 19th, 2015. She has been stationed in various Correctional Institutions, including Mimico, the Toronto Jail, and the Toronto South Detention Centre. She has known Mr. Wong for over 7 years and testified that he has a long history of poor behaviour and rule breaking. She testified that he had been warned twice on July 30th, 2014, about not “locking up” in a timely fashion (i.e. he was slow to respond to officers’ commands to enter his cell). On October 21, 2014, she detected the odor of contraband emanating from the respondent’s cell. She warned him about the odour and the need to be respectful. She also observed him to be exhibiting conduct consistent with having consumed narcotics. He was grinding his jaw and his eyes were bulging. The officer testified that she asked for a nurse to attend the range and investigate whether Mr. Wong had consumed narcotics. She told this Court that there are very few nurses on staff and it took a considerable amount of time for a nurse to attend. No further evidence of narcotic consumption could be obtained once a nurse did attend and Mr. Wong was found not guilty of the Misconduct alleged against him.

88While at the Toronto South Detention Centre (since 2008) CO Ferguson has had many opportunities to interact with the respondent while supervising. She testified that he “likes to show that he is the big boss". He asserted his dominance in subtle ways, by repeatedly entering the cells of other inmates, consistently being the last inmate in his cell at lock-up time or by stretching out his cleaning duties until well after having been told to stop.

89CO Ferguson observed that when challenged about his conduct, the respondent became combative, argumentative, aggressive, would raise his voice and his behavior could become “daunting”. It was only if Mr. Wong was getting his way that he would behave well. The officer described the offender as being “manipulative”.

90Despite Mr. Wong’s educational efforts and 21 hours of course-work, CO Ferguson noted that his behavior had not changed at all during the entire period that she has known him.

91On April 1, 2015. Correctional Officers identified a concern about ongoing smoking in the unit in which the respondent was housed. They executed a search of Mr. Wong’s cell. He was agitated and attempted to delay the search. Ultimately, however, he admitted to having contraband and removed a package from the fold of his boxer shorts and a second package from the back of his boxer shorts. The first package consisted of the striker portion of a green lighter which had been wrapped in electrical tape. The second package consisted of 19 grams of marijuana which had been stored in the finger of a blue latex glove. Mr. Wong was found guilty of this Misconduct.

7. Evidence of Gang Membership and the Wiretap Evidence

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Evidence of Gang Membership and the Wiretap Evidence

Mr. Wong’s own mother believed him to be a gang member of the Bloods and told police of her belief when interviewed regarding her son’s threats against her in 2000.

93Det. Douglas Backus was called at this hearing as an expert in street gangs and their membership. He was called to give evidence about Mr. Wong being an active gang member, specifically a member of the Driftwood Crips; and with respect to guarded language used by the offender and others captured on intercepted communications. Det. Backus was qualified by me in eleven specific areas on this topic as follows:

1. the purpose of the existence of a street gang (i.e. the commission of crimes such as the sale of handguns and drugs for monetary gain);

2. the territoriality of street gangs and the means used by them to enforce their exclusive use of their territory against any intruding gang, including the use of graffiti to assert exclusivity and the commission of crimes of violence involving serious bodily harm or death to intruders;

3. the membership of those gangs, including the indicia of membership such as tattoos;

4. the existence of a hierarchy with the street gangs;

5. the language used by street gangs;

6. gangs within correctional facilities;

7. interpreting language, terms, symbols and graphics used by Toronto street gangs;

8. the rivalry and territoriality of street gangs and their practices;

9. the use of firearms in the commission of an offence and the chain of events that would occur following an offence, specifically, whether a gang member would hold onto a firearm that they had used during the commission of an offence and what they might do with it;

10. the code of silence mandated by street gangs, including the intimidation of people in their areas who may be a witness to a crime committed by one of its members; and

11. the composition, territorial reach and practices of Toronto street gangs known as the Jamestown Crips, the Doomstown Crips, the Stovetop Crips and the Driftwood Crips.

94In forming an opinion, Det. Backus reviewed Mr. Wong’s criminal history, including each of the offences of drug possession and trafficking, gun possession, and the circumstances of these offences. He concluded that the offences were committed either in the core territory of the Driftwood Crips (something that would not have been possible were Mr. Wong not a member) or with a group or in furtherance of gang related activity.

95In reviewing the firearm offences committed by the respondent, Det. Backus formed an opinion that Mr. Wong’s gang activity dated back to his first firearm offence on June 22, 2003. At the time, Mr. Wong was arrested with two other males while they were in possession of packets of marijuana, a gun at the respondent’s feet, and a second gun in his pants pocket. When the offender was arrested again on June 26, 2005, he was in core Driftwood Crips territory. He discarded a loaded firearm as police approached him. Both he and another male with him were warned by persons in the area that police were nearby. Det. Backus testified that gangs are territorial and that an outsider would not have been permitted to be in the area with a firearm and would certainly not have been warned of police presence.

96During Project Kryptic, hours of intercepted communications were obtained of Mr. Wong in 2007, resulting in evidence of Weapons Trafficking, Possession of a Loaded Firearm Contrary to a Prohibit Order and Trafficking in narcotics. Mr. Wong pled guilty to these charges on November 14, 2008. In the calls, Mr. Wong is heard planning robberies, attacks on rivals and requesting the assistance of other gang members. Gang members who the respondent spoke to included Nadel Johnson and Michael Johnson. Det. Backus described these men as leaders in the Driftwood Crips gang.

97During conversations, Mr. Wong used guarded language to communicate with other gang members. After years of listening and interpreting the language, Det. Backus was able to decipher its meaning. He testified, and I accept his evidence as unchallenged in this hearing, about language used by Mr. Wong to refer to trafficking in firearms, narcotics, robberies and acts of revenge against rivals.

98Mr. Wong spoke to both Johnson brothers on different occasions, each time trying to obtain a firearm with which to seek revenge for a robbery of his own firearm perpetrated against him by another male on gang territory. As a result of the intelligence the police gained from listening to Mr. Wong’s calls to the Johnson brothers, they arrested the male to protect him from violence at the hands of the respondent and his gang.

99In other taped calls, Mr. Wong was overheard trying to get or even rent a firearm to conduct drug trafficking. He continued to talk about seeking vengeance against two persons who had robbed him. He planned his revenge in a matter of fact fashion. Throughout the calls, he was heard to be assisted by various gang members, those in the hierarchy and those at his own “Soldier” level, acting on the instructions of their leaders.

100In one call, Mr. Wong spoke to an unknown male about treating someone like a “rag-doll”- a reference to a robbery in which he would steal narcotics. In another call, Mr. Wong talked of robbing a youth. No reason is given for wanting to rob either person. In a third call, the offender is overheard speaking to a fellow gang member, Shamielh Pink, of wanting to rob innocent students or “anybody I see”- seemingly indifferent to the consequences of his actions on the public.

101Det. Backus concluded that Nicholas Wong was a member of the Driftwood Crips during the year 2007 and likely well into 2010. In his report, he wrote:

…it is my opinion that Nicholas WONG was a member of the Driftwood Crips during the year 2007. Based on intercepted calls, WONG fits the profile of a Soldier within the Driftwood Crips ranks. A soldier normally has access to a firearm and does certain tasks for the hierarchy of the gang, in this instance Nadel JOHNSON, Michael JOHNSON and Jovahn CAMPBELL. These tasks include dealing drugs, protecting the gang territory, intimidation and reporting back to them should there be any incidents. A Soldier may also store drugs, firearms and/or ammunition for gang members.

WONG’s criminal record indicates that in November 2008 he was convicted of possessing a firearm or ammunition contrary to the Prohibition Order he received on the charges stemming from Project Kryptic. In 2010 WONG was again involved in an apparent robbery over a “package”. During this robbery WONG was identified as the person responsible for firing a handgun at the victim striking him once and hitting the car three (3) times. Several months after this incident WONG engaged police in a vehicle pursuit to evade capture - he was arrested shortly after and charged with attempted murder, discharge firearm with intent to wound and possession of a Firearm contrary to a Prohibition Order (which stemmed from Project Kryptic). This would strongly indicate in my opinion that WONG continued his gang lifestyle into well into 2010.

102In cross-examination, counsel for Mr. Wong suggested to Det. Backus that Mr. Wong was part of a music group and not a gang member. She showed Det. Backus a video of a music group working under the title “International Money Getters”. This group had gathered at Driftwood Court to film the music video. In it, rappers and background participants can be seen forming the letter C or a three-point crown with their hands, all gestures associated with the Crips gang. The lyrics describe kidnapping someone who had “snitched”, taking that person to a trap house (the phrase for a gang safe house) and killing that man. It also referred to buying and selling cocaine. Det. Backus’ rejected counsel’s suggestion that Mr. Wong was a rap singer and reasserted his opinion that the respondent was an active member of the Driftwood Crips and was associated with a sub-set of that gang known as the “International Money Getters”. I accept his conclusion and find that the rap video only supported the officer’s opinion rather than the contention that Mr. Wong is a musician.

8. Psychiatric Report and Evidence of Dr. Scott Woodside

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Psychiatric Report and Evidence of Dr. Scott Woodside

Dr. Scott Woodside prepared a report dated January 13th, 2014. The report included a review of the respondent’s criminal, institutional, probation, CAS and TDSB records; a mental status examination; a psychiatric diagnosis; a consideration of criminogenic variables; the administration and opinion regarding two violent risk assessment tools including the PCL-R (Psychopathic Checklist Revised) and the V-RAG (Violent Risk Appraisal Guide); his clinical opinion regarding Dangerous Offender Status; and, recommendations for treatment and supervision.

104Dr. Woodside testified that: i) the risk portion of the dangerous offender criteria pursuant to section 753(1)(a)(i) were met from a psychiatric perspective; and ii) the respondent has shown

a substantial degree of indifference respecting the reasonably foreseeable consequences to other persons of his behavior from a psychiatric perspective pursuant to section 753(1)(a)(ii). In summary, Dr. Woodside was of the opinion that there was “significant reason for pessimism, from a psychiatric perspective, regarding this individual’s future manageability within the community, even if strict conditions were put in place and Mr. Wong were to agree to follow through with conditions and treatment recommendations.” He testified that, “At this point it is very speculative that something we can do will reduce risk to an assumable level”.

i) Diagnoses

105Dr. Woodside testified that the respondent’s primary diagnosis was Antisocial Personality Disorder (ASPD) with significant psychopathic traits. The diagnostic criteria for antisocial personality disorder is found in the Diagnostic and Statistical Manual-5th edition (DSM-5). According to the DSM-5, the essential feature of ASPD is a “pervasive pattern of disregard for, and violation of the rights of others, occurring since the age of fifteen”, as indicated by three or more of the following:

i. failure to conform to social norms with respect to lawful behaviours;

ii. deceitfulness as indicated by repeated lying, use of aliases or conning others for personal profit or pleasure;

iii. impulsivity or failure to plan ahead;

iv. irritability and aggressiveness;

v. reckless disregard for the safety of self or others;

vi. consistent irresponsibility as indicated by repeated failure to sustain consistent work behavior or honour financial obligations;

vii. lack of remorse, as indicated by being indifferent to, or rationalizing, having hurt, mistreated, or stolen from another.

106It was the psychiatrist’s opinion that Mr. Wong met all 7 of the ASPD criteria. He also found that collateral information suggested a “relatively early onset of conduct-disordered symptoms (truancy, involvement in criminal activity, violation of parental rules) followed by involvement in ongoing criminal activity throughout his adult years to date, primarily in a gang-related context” and that “….there appears to be very strong evidence in support of this diagnosis”.

ii) Criminogenic Variables

107Dr. Woodside summarized Mr. Wong’s risk factors (Criminogenic variables which cause his criminal behaviour) as follows:

i. Possible substance-related difficulties;

ii. Association with criminally-oriented peers/gang membership;

iii. Deficiencies in conscience development consistent with an ASPD;

iv. Lack of supportive intimate or family relationships;

v. Difficulties with anger management and aggressive behavior

vi. Lack of any significant vocational skills.

iii) The Risk Assessment

108Dr. Woodside conducted an appraisal of risk in terms of the criteria articulated in s. 753 of the Criminal Code. He testified that this assessment of risk for non-sexual violence includes consideration of a number of variables known to be correlated with risk, including a variety of socio-demographic factors (male, single, low educational achievement, low intellect, unstable employment, geographic instability, young age, prior history of violence, the presence of antisocial personality disorder or psychopathy, a history of substance abuse). The doctor explained that the assessment of risk begins with an actuarial or statistical appraisal of risk, which takes into account some or all of the factors noted above and provides a numerical anchor point as regards risk. The anchor points, however, tend to be an underestimate of risk given that individuals commit unreported/undetected offences.

109He explained that once an actuarial estimate of risk is arrived at, the clinician should then consider clinical (non-actuarial) factors, known as dynamic factors. These factors, which might include things that could be changed in the future (his education, financial stability, moving out of his neighborhood and quitting the abuse of substances) may suggest upward or downward movement of the statistical appraisal of risk. An adjustment of an individual’s risk category on the basis of clinical/dynamic variables should be approached, however, with great caution given that empirical research has consistently shown risk assessment instruments to be superior to clinical opinion regarding the probability of criminal recidivism over a specified period of time.

iv) Psychopathy

110Dr. Woodside testified that The Psychopathy Checklist-Revised (PCL-R) is a tool designed to define and measure the extent to which an individual resembles the ideal of the prototypical psychopath. The PCL-R is comprised of two subscales: Factor One measures exploitive values and attitudes; Factor Two measures indicia of behavioural dyscontrol. Psychopathy is diagnostically defined as a score of 30 or above out of 40 on the PCL-R. Some investigators have established that significant criminality begins when an individual’s PCL-R score is in the mid-twenties. The PCL-R measures the severity of antisociality present in an individual.

111Dr. Woodside scored Mr. Wong as 28.2 on the PCL-R. His scoring, the doctor testified, places the respondent at the 75th percentile of male prison inmates in the PCL-R standardization sample or Mr. Wong is more severely antisocial than the majority of other individuals in prison. Dr. Woodside reported the average score in the male prison population as between 22-23. As a

result, he found that Mr. Wong’s score is elevated in terms of risk. And, Dr. Woodside warned that it was important to note that scoring completed based primarily on file review (as was the case here because Mr. Wong did not participate in the assessment), typically underestimates the individual’s PCL-R score.

v) The Violent Risk Appraisal Guide (VRAG)

112Dr. Woodside described the VRAG as, arguably, the best instrument for providing an actuarial baseline of risk regarding violent re-offending.

113Mr. Wong scored +23 on the VRAG. This score placed him at the 96th percentile compared to the developmental sample of male offenders (i.e. his score was higher than 95% of individuals in the development sample). He was placed in the 8th of 9 ascending categories of risk. In the development sample, 82% of offenders in the same risk category re-offended within 10 years. Given the estimated measure of error associated with the VRAG, Dr. Woodside concluded that the respondent’s true score would be expected to fall within one risk category above or below. In other words, the expected probability of violent recidivism on the part of Mr. Wong is expected to range between 64-100% within 10 years of opportunity.

114This score falls within a high risk category. And, in fact, this result is mirrored by previous correctional risk assessments, which have placed Mr. Wong in a high risk/needs category regarding the risk of re-offence.

115Dr. Woodside wrote, at page 27 of his report,

There is nothing in this individual’s clinical presentation or history to suggest these risk estimates are overestimates. Nicholas Wong clearly embodies a number of the clinical variables known to be related to violent recidivism, including most significantly, the presence of an antisocial personality disorder and significant psychopathic personality traits, a lack of stable employment history, low academic achievement and unstable relationships. These variables should likely be considered static variables, which will not be specifically responsive to intervention.

116Dr. Woodside testified that the risk estimates are likely underestimates (given the significant under reporting of violence in the community).

117Dr. Woodside concluded that, overall, he viewed the respondent as being at high risk for violent re-offence from both a clinical and an actuarial perspective. Of significance is the offender’s repeated carriage of weapons and the use of weapons in the index offence as it speaks to the degree of anticipated severity of future potential re-offence.

vi) Dr. Woodside’s Assessment of Dangerous Offender or Long-Term Offender Status as outlined by Section 753(1) of the Criminal Code

118In Dr. Woodside’s opinion, the results of the risk assessment suggest that the risk portion of the criterion for dangerous offender status is met from a psychiatric perspective pursuant to s. 753(1)(a)(i): A pattern of behavior showing a failure to restrain his behavior and showing a likelihood of causing death or injury to other persons.

119In Dr. Woodside’s opinion, Nicholas Wong’s history of behavior in both previous and current offences, “…suggests significant difficulties in thinking of the consequences of his criminal behavior and the antecedents of that behavior” pursuant to s. 753(1)(a)(ii): A substantial degree of indifference regarding consequences to others and the reasonably foreseeable consequences to other persons. This substantial degree of indifference was summarized by him as follows:

While he has at least superficially accepted responsibility for his offending behavior in the past, he has repeatedly returned to involvement in criminal activity and appears to have escalated in terms of his willing[ness] to make use of violence in order to achieve his goals. In the case of the index offences, he put others at risk of death in order to affect a theft of drugs in a planned fashion. He has shown himself capable of engaging in instrumental violence (where violence is a means to an end rather than flowing from affective arousal such as anger).

120Dr. Woodside testified that the relationship between Mr. Wong’s use of violence and the criteria of indifference in subsection (ii) can be explained in the following way:

They appreciate that violence is a part of what they do, and they accept that. It’s part of their day to day activity. Drug dealers have guns. For me that is more ominous than someone who has trouble controlling behaviour toward domestic partners or when drinking. We may target programs for domestic violence or for alcohol abuse. When it is a function of antisociality or psychopathy, it is more difficult. There is no good evidence that we can affect change in that regard. It is an entrenched world view in terms of achieving observable reduction in recidivism. As a clinical observation for me, it’s more ominous.

121Dr. Woodside concluded that Nicholas Wong’s criminal history demonstrates a significant degree of indifference to the potential effect to his victims, from a psychiatric perspective. He further concluded Nicholas Wong’s “capacity to empathize with others, in particular his victims and to experience genuine remorse for his transgressions, is extremely limited.”

vii) Dangerous Offender Status vs. Long-Term Offender Status

122In his report, Dr. Woodside considered whether the risk assessment suggested Mr. Wong met the criteria for Dangerous Offender indeterminate, Dangerous Offender determinate or Long-Term Offender Status. Specifically, he considered whether there was a reasonable expectation of control of risk in the community (D.O. determinate) or whether Nicholas Wong presented with a reasonable possibility of eventual control in the community (L.T.O.). He was of the opinion that Nicholas Wong presented with a substantial risk for violent re-offence.

123The doctor testified that the question of whether or not there is a reasonable possibility or an expectation of eventual control in the community is not well-defined from a psychiatric perspective. He explained that from his perspective, whether or not the criteria are met hinges on 3 considerations: intractability; treatability; and, supervisability. In other words, could Nicholas Wong “….be considered treatable and whether such treatment offers any hope/assurance that his risk could be managed within the community.”

124Dr. Woodside concluded that because the starting point of a consideration of treatability is the likelihood of response to treatment and/or supervision for any diagnosis, and because there is very little evidence that individuals with Antisocial Personality Disorder benefit from treatment in terms of recidivism, Mr. Wong’s prognosis for successful treatment is poor. Individuals high in psychopathic traits, scoring 25 or above on the PCL-R, show a poorer response to treatment and/or supervision. With a score of 28.2 on the PCL-R, the respondent would likely experience greater difficulties with respect to persistence in treatment and compliance with supervision than would the lower scoring individual on the instrument. Further, research on burn-out theory suggests that Mr. Wong would not expect a diminution in violent offending for another 15 years (30 years for a more fulsome effect).

125Dr. Woodside testified that Mr. Wong’s expressions to Dr. Ilacqua that he wanted treatment are not correlated with reductions in re-offence. At page 31 of his report, Dr. Woodside wrote:

This is not overly surprising given that the majority of individuals, when faced with significant consequences for their actions, will indicate a desire to take whatever treatment is necessary. As a result, positive expressions of motivation to pursue treatment appear relatively non-specific and largely unhelpful in attempting to determine who is actually most likely to benefit from treatment and/or supervision.

126Dr. Woodside testified that looking at an offender’s past response to previous treatment can assist assessors in determining whether or not the offender would likely benefit from treatment. He noted that Mr. Wong has been offered and received treatment in the past, but demonstrated limited efforts to undertake or complete it. Although he completed a 7.5 hour “Change is Choice-Connections Program”, he did not complete a domestic violence program or an anger management program. And, to the extent that he did receive treatment, it did not appear to have been effective in reducing the respondent’s involvement in criminal activity. Dr. Woodside found this factor as negative in terms of Mr. Wong’s manageability in the community and controlling his risk.

127The fact that the respondent completed 21 hours of course work, while in custody on these charges, did not alter Dr. Woodside’s position that Mr. Wong would not be controllable in the community. He testified that offenders will participate in programs to give the appearance of compliance. He testified that the vast number of people he has assessed have said they will take any and all treatment, but treatment has to persist over a very long time to have any chance of changing behaviour. According to Dr. Woodside, it is too early to tell if Mr. Wong has responded to any treatment he has received while in custody.

128Dr. Woodside considered Mr. Wong’s previous convictions for breaches of supervision and concluded that “….his history in this regard can only be described as dismal. It provides little comfort or assurance that he would respond to supervision positively in the future.” Overall, he viewed this factor as significantly negative.

129According to Dr. Woodside, although stable relationships and employment are likely to have some benefit to individuals like the respondent, it is unclear whether or not employment for individuals like Mr. Wong actually reduces rates of recidivism. He considered that Mr. Wong has worked while in custody and received positive reviews. However, he also considered his poor work history in the community and the fact he has only supported himself through criminal activity. His motivation to work has not been sustained in the community, nor has he ever supported his children through legal means. Dr. Woodside wrote at page 32 of his report that:

“What is known is that he has appeared to gravitate towards association with criminally-oriented peers and gang membership in the community, which if this were to continue, would clearly be an overwhelming negative factor.”

130In the event the Court determined that Mr. Wong met the criteria, but sentenced him to a determinate sentence, Dr. Woodside believed that the system should address every criminogenic variable. In short, he testified, the identification of risk warranted doing “Everything possible for as long as possible.”

131The defence was unable to undermine Dr. Woodside’s opinion. There were three major suggestions made by defence counsel in the cross-examination: i) there is a need to consider dynamic factors and there is a deficit in the psychiatrist’s opinion as a result of his failure to do so; ii) the “3rd generation” instruments are better than the instruments Dr. Woodside utilized; and, iii) there has been successful treatment of psychopathy.

132I accept Dr. Woodside’s responses to counsel’s suggestions in cross-examination and they have not been refuted by any evidence in this hearing. He testified that although dynamic factors are relevant at the classification and treatment stages, they are not the focus of the inquiry at the s.753 hearing. Dr. Woodside maintained that, in his interview with Mr. Wong, Dr. Ilacqua missed the opportunity to properly score the instruments and understand criminogenic variables. Dr. Woodside would have done so given the opportunity to interview Mr. Wong and would have asked many different questions focused on violence and risk of violence concerns.

133Dr. Woodside disagreed that the “3rd generation” instruments that Dr. Ilacqua used in the prediction of violent recidivism perform as well as the VRAG, used by him. Dr. Woodside criticized Dr. Ilacqua for the use of those tools as missing the point of the Dangerous Offender hearing. And, Dr. Woodside did not agree with counsel’s proposition that treatment for psychopaths (or individuals with antisocial or psychopathic traits) can be effective. He referred counsel to the Guideline for Psychopathy Treatment Program which states that “the key question of whether treatment can reduce the psychopath’s likelihood of being charged or convicted of violent criminal offences remains unanswered, a conclusion also reached in a recent review of the literature”.

9. Evidence of the Correctional Services of Canada

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Evidence of the Correctional Services of Canada

Shandy Briggs, of Correctional Services Canada (CSC), testified about the programs available to inmates in Federal institutions, as well as the supervision of them available once offenders are released. Once an offender enters an institution, a “Correctional Plan” is formulated to address their needs and to plan their eventual release. A Parole Officer writes the Correctional Plan and updates it in consultation with the offender as needed.

135Given Mr. Wong’s criminal history, Ms. Briggs suggested that he would be classified as a “high risk, high needs” inmate and would most likely be placed in a maximum security institution.

136Ms. Briggs also testified about the Integrated Correctional Model available for the treatment of offenders in federal institutions. The programming is meant to be delivered in an integrated or holistic way. It addresses common themes among three available streams: multi-targeted programs, programs geared toward First Nations persons and programs for sex offenders.

137The various modules of programming include:

• Program Primer: 10 sessions for offenders serving four years or less;

• Extended Primer: 15 sessions delivered to offenders before they participate in a main program;

• Motivational Module: to encourage offenders who have a poor participation history;

• Adapted Programs: 56 sessions adapted for moderate-risk offenders who have unique needs, such as mental health concerns, cognitive impairments, learning disabilities, or 72 sessions for sexual offenders;

• Community Programs: 20 – 25 sessions delivered to offenders who did not participate in or complete a correctional program; and the

• Institutional and Community Maintenance Programs: 12 sessions delivered to offenders who have been released to allow staff to re-assess need for continued participation and risk management.

138The key to these programs, she testified, is voluntary participation. If an offender chooses not to attend, he cannot be forced to do so. The only consequence would be at any future parole hearing. Even so, one can never be assured that attending a program actually results in an offender internalizing the information given to him. He could merely be sitting passively without any benefit to his rehabilitation.

139Once released from a federal institution, an offender may have little provided to him in the community. Ms. Briggs testified that if Mr. Wong is given a determinate sentence, without a further designation, he can serve the entirety of the sentence to warrant expiry and be released without any conditions or support.

140If designated a Long-Term Offender or a Dangerous Offender with a determinate sentence, Mr. Wong would be released back into the community. On average, those designated Dangerous Offenders with an indeterminate sentence serve 11 years prior to first release date.

141Upon release, Mr. Wong may be required to abide by certain conditions. These may include a non-association clause with his victim or known gang-members who he associated with in the past. They may also include conditions that he abide by a curfew or observe a no weapons clause.

142Mr. Wong could be ordered to reside at a Community Correctional Facility or Community Residential Facility. Ms. Briggs explained that these are not detention centres. There is little to no control or supervision of an inmate when he is not in a correctional facility. The respondent could sign out of his residence in the morning and go about his day associating with gang-members, trafficking in narcotics, or carrying a firearm as long as he signs in on time in the evening. Aside from the authorities at the residence being able to confirm his whereabouts by calling a land-line at the address where he reported he was spending the day or check pay-stubs, the CSC may have no knowledge of his daily activities. Ms. Briggs testified that electronic monitoring of residents is not yet available.

10.) The Defence Evidence

i) Ann Dreen Burke (Cousin)

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The Defence Evidence

The defence called the respondent’s cousin, Ann Dreen Burke, and his current girlfriend, Shayna Campbell, as community support contacts.

144Ms. Burke testified that she was a maternal figure to Mr. Wong, providing a comfort zone to him in his youth. While she recalls that he and she grew up in a high-crime area, she recounted that he was offered family support from herself, her father (his maternal uncle) and that they offered him as much help as they could. She told the Court that the respondent’s mother suffered from depression and an unspecified thyroid problem. Both Ms. Burke and her family are law abiding persons, gainfully employed and contributing to their community. In contrast, Ms. Burke painted a picture of Pauline Wong as an inattentive parent who was preoccupied with her own struggles and seemingly uninterested in her son.

145Ms. Burke also testified, however, that she became a mother at a young age and had responsibilities for the children and work so she lost track of Mr. Wong in his adolescent years when he began to spend time with a “bad group”.

146Ms. Burke told the Court that she has been to visit the respondent while he is in custody during this hearing and Mr. Wong told her about several concerns he has as a result of being incarcerated. They involve concern for his family, including his grandmother who is aging and concern about not getting to know two of his children who were born while he has been in jail.

147Ms. Burke also testified that Mr. Wong wants to “be something”, make better choices, be a better parent and is “sorry”.

148In cross-examination of Ms. Burke by the Crown, it became apparent that Mr. Wong has no expressed remorse for the damage he has done to the community at large, to Mr. Tran, or even to the women who he has fathered children with – but who are not currently his romantic partner.

149Ms. Burke also admitted that she knew little of the details of Mr. Wong’s criminal record, including his convictions for firearms possession. She confessed that she had tried to guide her younger cousin in the past, offering her advice that he stay in school and out of trouble. Each time, she was disappointed when he ignored her advice and did as he pleased. And, Ms. Burke was prepared to accept Mr. Wong’s explanations for his criminal convictions. She accepted without question that on multiple occasions it was not his “fault” that he was arrested. She explained that “everyone” in the Driftwood area agreed that the firearm he possessed in 2005 was not his, yet she agreed she had no knowledge of the evidence against the respondent or the strength of the Crown’s case involving the gun. She took him at his word, despite the fact that he has repeatedly broken it to her.

150When asked about Mr. Wong’s activities in 2007, Ms. Burke admitted that she knew her cousin was dealing drugs and that drug-dealing was common place in the neighbourhood. Ms. Burke acknowledged that she knew possessing a firearm was a tool of the trade for drug dealers. Yet, she also disclosed that she had turned a blind eye to the respondent’s actions out of loyalty to him as an individual, rather than concern for her community at large.

ii) Shayna Campbell (Current Girlfriend)

151Shayna Campbell testified that she has known Nicholas Wong since she was approximately 12 years old, but also “lost track” of him in their teen years. She told the Court that it was not until he was incarcerated in 2009 that a mutual friend took her to visit him in custody. Ms. Campbell, who has a secondary school education and a full-time job with CIBC, began visiting the offender regularly in prison to support him as he was feeling “down” about his circumstances. Shortly after his release from custody in 2009, the respondent began to live with her.

152While they lived together, he made little efforts to obtain employment. According to Ms. Campbell, the respondent called some employment agencies to get a labour or construction job, but became frustrated by his lack of success in obtaining one and gave up trying. Despite this, Mr. Wong had money. Ms. Campbell testified that he was trafficking in narcotics by the time he had been out of custody for a few months. She admitted that she knew that guns and drug trafficking go hand in hand, but that she turned a blind eye to Mr. Wong’s illegal activity.

153Ms. Campbell was asked about Mr. Wong’s track record with women. It was suggested to her by the Crown that he uses women; his partners, his mother, and her. Examples of his storing firearms and large amounts of ammunition at the homes of his mother, Cora Brooks, and Ashley Cebello-Perreira were laid out to her by the Crown. It was suggested that the items were left at their homes, making them subject to arrest upon the execution of the search warrants. Ms. Campbell admitted that this was troubling, but that she was still prepared to disregard how the respondent’s criminal activity could affect her and her children.

154Ms. Campbell testified that she had spoken to Mr. Wong about his criminal past. He offered her an explanation for each occurrence and had either minimized his involvement in it or denied responsibility for the offence altogether. With respect to his conviction for domestic violence against Tasha Robinson, the respondent told Ms. Campbell that Ms. Robinson had hit him and that he was not responsible for any offence. Ms. Campbell readily accepted this explanation despite the conviction or the fact that there was evidence that the respondent grabbed Ms. Robinson as she tried to flee from the assault in full view of her neighbors.

155The fact that Mr. Wong was driving Ms. Campbell’s car before he was arrested on the predicate offences as he led police on a high-speed chase while she was pregnant with their twin boys and the fact that the vehicle was impounded by police when she had few financial means to get it back did not change Ms. Campbell’s views that she could rely on the respondent.

156Mr. Wong was wanted by the police at the time he went to live with Ms. Campbell. Search warrants were executed at his mother’s and Cora Brook’s homes because of his criminal activity. Mr. Wong did not tell Ms. Campbell the police were looking for him. She testified that those facts did make her consider whether she and her children might be put at risk by Mr. Wong.

157Ms. Campbell was cross-examined about Mr. Wong’s plans for the future. She was of the view that he ought to be involved in the lives of his children for their benefit. However, she would only continue to support him if he “continues to change”. Contrary to what Dr. Ilacqua suggested in his report, Ms. Campbell is not prepared to offer the respondent housing upon his release. She testified that the plan was for him to live with his mother initially. I have heard no evidence that Mr. Wong is able to live with his mother or has anywhere to live when released from custody.

158Ms. Campbell tried to assure me that Mr. Wong had truly changed this time. She was confident that he was not the same person who had manipulated those around him, his past partners and various courts. Yet, despite her confidence, Ms. Campbell was completely unaware that the respondent had steady visits, while in custody on these charges, from women who are unknown to her.

159I find that Mr. Wong is willing to deceive Ms. Campbell and manipulate her just as he has done to others in his life. Ms. Campbell has demonstrated to me that she is prepared to turn a blind eye to the respondent’s deceitfulness and criminal activity.

iii) Evidence and Report Prepared by Dr. Georgio Ilacqua

160Dr. Ilacqua’s diagnostic impression and treatment recommendations were based on documentation available at the time of the assessment, Mr. Wong’s self-report, collateral information and psychometric testing.

161He concluded that, although Mr. Wong’s personality profile raised some validity questions and no personality profile could be provided as a result, it did not appear that Mr. Wong was deliberately attempting to disqualify the psychometric outcome of the assessment. Based on the results of the evaluation, Dr. Ilacqua concluded that the respondent did not present with any major psychological diagnosis. His intellectual potential is in the borderline range, while his adaptive skills are below average. This combination of cognitive skills deficits (conceptual: literacy; social: interpersonal skills, social responsibility, self-esteem; and practical: occupational skills, use of money) makes him vulnerable to social pressure.

162Dr. Ilacqua was of the opinion that although Mr. Wong does present with some of the characteristics, he does not meet the criteria for antisocial personality disorder (DSM-5) (psychopathy as measured by the PCL-R). He does not appear to be egocentric, he presents with prosocial attitudes, he is able to express remorse and assumes responsibilities for his own actions. He does not appear to rely on violence in a persistent manner, but in an instrumental one. The psychologist also found that some of the characteristics generally associated with the antisocial personality disorders evidenced in this report are confounded by the socio-economic environment in which Mr. Wong has been raised.

163Based on the information that he had, Dr. Ilacqua concluded that Mr. Wong’s level of risk for future violent offences and behaviours was a moderate to high risk.

164Dr. Ilacqua further suggested that because Mr. Wong’s level of risk is highly contingent upon his exposure to the drug sub-culture and exposure to his criminal acquaintances in a high crime environment, there are several dynamic or changeable factors, if appropriately addressed by treatment, that could reduce his risk of violent reoffending. Those were: financial difficulties, education, living in that high crime neighborhood and substance abuse.

165Dr. Ilacqua could not find that Mr. Wong was inherently dangerous, but could not offer an opinion whether his diagnosis fit the definition of dangerousness as set out in s. 753(a) of the Criminal Code. He believes that any risk posed by the respondent can be overcome because Mr. Wong is engaged in change and has an opportunity to receive intensive programs while incarcerated, which will prepare the groundwork for community programming. This can be supplemented with supervision and additional conditions to ensure success in the community.

F. ANALYSIS

The Psychiatric and Psychological Assessments

[166]

Analysis

Dr. Woodside rendered a clinical opinion regarding Mr. Wong’s dangerous offender status and made recommendations for treatment and supervision. In his report and his testimony over the course of several days in June and November, 2015 and again in March, 2016, he concluded that Mr. Wong met the risk portion of the dangerous offender criteria pursuant to ss. 753(1)(a)(i) and (ii). I have already set out much of what he found. I accept his evidence as highly persuasive on the issues in this application.

167Dr. Woodside has practiced forensic psychiatry for many years and has conducted more than 100 assessments pursuant to the dangerous offender legislation. In cross-examination, the defence was unable to undermine his opinion. His responses in cross-examination were unbiased, principled and a scientifically-based consideration of all the facts.

168I have already summarily set out Dr. Ilacqua’s findings, but will go into more detail about his conclusions because I intend to give them little weight on the issues I must decide.

169Frist Dr. Ilacqua did not include any reference to the dangerous offender or long-term offender provisions in his report or in his testimony. He was not aware of the criteria (specifically, the risk portion of the criteria) and how it related to Mr. Wong. Dr. Woodside testified that not all of his colleagues comment on the criteria as it sometimes varies based on one’s experience, but that it is common that they do comment.

170While it is the Court’s decision to determine if the s.753 criteria have been met, the forensic experts’ opinions regarding the risk portions of the criteria are essential. Dr. Woodside testified that the goal of the expert opinion is to assist the Court with what the level of risk is and what can be done to manage that risk.

171Second, I have not been provided assistance from Dr. Ilacqua about whether or not, in his opinion, there is a reasonable expectation of control in the community or merely a reasonable possibility of it. The Court has been given no assistance on when Ms. Wong would be ready for release into the community. I have been given no assistance on how much supervision would be required and for how long. Dr. Ilacqua demonstrated a misplaced reliance on a number of the tests with limited utility and validity in the context of this assessment. He focused on treatment and management considerations. But, the focus on the dangerous offender assessment is not on classification or correctional issues. As Dr. Woodside testified, the focus is on “risk for further violent behaviour”. Dr. Ilacqua’s failure to address these issues in his report and in his testimony renders his evidence of little utility.

172Third, Dr. Ilacqua failed to scrutinize Mr. Wong’s criminal record. He had the opportunity to ask the respondent about the entries in order to assist him in determining any antisocial elements, the existence of psychopathy, amenability to supervision and motivation for treatment. Dr. Woodside testified that he reviewed the collateral information and the criminal record and if Mr. Wong had spoken to him, he would have been able to assess for any inconsistencies in his responses. He would then have asked for an explanation for any inconsistent responses, challenged and gaged the response. The information would have been relevant to assessing psychopathy. He testified about Dr. Ilacqua’s failure to ask Mr. Wong about his record and said, “It is a rich source of information….I can’t imagine not asking about it. It is surprising it was not done….It was a missed opportunity at a minimum.”

173Dr. Ilacqua did not consider Mr. Wong’s probation records and his breaches of court orders and weapons prohibitions. He did not consider Mr. Wong’s Institutional Misconduct records or consider the fact that he had been in custody since July, 2010 and had not taken any treatment or education programs until March 6, 2014. He did not inquire into why Mr. Wong had not complied with past treatment orders, but was now interested in treatment. He did not consider the fact that Mr. Wong has not participated in any programming since November 17, 2014. Yet, he testified that Mr. Wong was in the “action phase of his treatment”. There is evidence in the probation and institutional records that Mr. Wong uses drugs. Yet, Dr. Ilacqua did not question the respondent in any depth about it.

174Fourth, Dr. Ilacqua was not provided with the private communications recorded in Project Kryptic. Excerpts of the recordings were played for him in court and Det. Backus’ opinion read to him about each of the excerpts. Although he agreed that gang members have very entrenched beliefs and Mr. Wong appeared to be planning robberies and spending his time planning criminal activities on the recordings, he was not prepared to change his position with respect to the respondent’s risk factors or presentation.

175Fifth, Dr. Ilacqua did not consider the Index Offences in his assessment of risk. Although instructed not to question Mr. Wong about the offences by defence counsel, he could have objectively assessed the proven facts in his determination of an escalation of violence and the issues of frequency and severity of the respondent’s offending.

176Sixth, Dr. Ilacqua did not question Mr. Wong about the feasibility of his release plan or how he was going to accomplish treatment or go back to school. He assumed that Shayna Campbell would house Mr. Wong when he was released into the community. She testified at the hearing that she was not able to house Mr. Wong and would expect him to go to live with his mother. There is no evidence that Mr. Wong’s mother will have her son live with her when he is released from custody. He did not question Mr. Wong about how he would deal with the stresses of parole and how he would support himself and his children.

177Further, Dr. Woodside testified, and I accept his evidence, that Dr. Ilacqua made the following errors in his assessment:

i. the use of the LSI-R as a predictor of violent recidivism;

ii. the use of the IORNS as a risk predictor;

iii. the use of the SIMS to detect malingering in a non-mentally ill patient; and,

iv. absolutely no inquiry into the criminal record or history.

178According to Dr. Woodside, many of the tests administered by Dr. Ilacqua were transparent and/or of limited use in the context of risk assessment. They have no predictive ability for violent risk and little to no relevance to the determination of s.753(a).

179An example of Dr. Ilacqua’s flawed opinion, based on one of the tests he administered, is his conclusion that Mr. Wong is not quick to anger based on the results of the STAXI. He did not consider Mr. Wong’s use of instrumental violence, which Dr. Woodside testified is one of the core psychopathic characteristics. And, by not analyzing the results of this test in the context of the Index offence, Dr. Ilacqua’s opinion is questionable.

180The Crown cross-examined Dr. Ilacqua about alleged errors in scoring in the use of the risk-assessment tools he administered to Mr. Wong. I am satisfied, based on his answers to the questions posed, that: i) he failed to ask many of the suggested questions required in order to collect sufficient information to score each item; ii) he failed to critically examine Mr. Wong’s self-report in order to score each item objectively; iii) he did not keep proper notes of his interview with Mr. Wong or of the reasons for his scores in order to withstand a challenge to his conclusions; iv) he did not properly consider historical factors such as the criminal and other records in scoring items on the tools; and v) he did not appear to understand the limits or the use of the tools he used in the context of this application.

181When confronted by the Crown, in cross-examination, with reasons for pessimism in terms of Mr. Wong’s risk for re-offending, Dr. Ilacqua testified, “I’m talking about [him] at this moment”; “That is not what I saw in [him]”; “We look at Wong now”; “This goes against what I saw on the interview”. He reported that “his hope” was based on the test results and collateral reviews” and he agreed that he ignored the respondent’s history in favour of how he is now. Dr. Woodside testified that the assessment of risk must involve a consideration of a lifetime of functioning. The primary focus is not on the present state, although the present day factors ought to be considered and objectively assessed. The focus is on a lifetime of behavior and traits. Therefore, the question to be asked is: how has the individual lived their life until the point in time of the assessment?

182Instead of answering that question, Dr. Ilacqua emphasized dynamic factors at the expense of historical factors. This error manifested itself in the assessment, including the clinical interview/self-report; his review of the records; his consideration of the criminal record; and even his scoring of the risk assessment tools.

183According to Dr. Woodside, in order to find that dynamic factors have a meaningful effect on risk, he would expect to see “persistent and convincing changes in behavior that occurred over the past 5-6 years”. That is the type of change required in order to attenuate risk: not merely a self-report motivated by self-interest, and limited education and programming over a short period of time.

184Finally, Dr. Ilacqua refused to diagnose Mr. Wong as having met the criteria for antisocial personality disorder according to the DSM-5 when there was evidence of it. Dr. Ilacqua testified that he did not make the diagnosis because: first, Mr. Wong had not previously been diagnosed with the disorder; second, because he did not see any affective impairment in the respondent; and third, because of the test results.

185Dr. Woodside testified, and I accept, that the diagnosis of ASPD requires “evidence of conduct disorder”. It does not require an actual diagnosis of conduct disorder. The DSM-5 sets out in the narrative that the diagnosis requires “…a history of some symptoms of conduct disorder before age 15 years”. Dr. Woodside also testified that there was ample evidence of relatively early onset of conduct-disordered symptoms in the respondent such as truancy, involvement in criminal activity and violation of parental rules, followed by ongoing involvement in criminal activity throughout his adult years. Dr. Woodside testified that, in needing to justify why he did not diagnose ASPD, Dr. Ilacqua was “…working too hard (in

avoiding) an obvious conclusion”. He testified there is very strong support for this diagnosis and that Mr. Wong met every criterion. In his opinion, Nicholas Wong had a severe form of the disorder.

186Dr. Ilacqua reported that he did not see “any affective impairment in Nicholas Wong” because of the respondent’s reported concern for his family. Dr. Woodside testified that Dr. Ilacqua’s findings in this regard were due to a narrow and incomplete view that the psychologist took of the trait of empathy.

187Dr. Woodside also testified that Dr. Ilacqua’s failing to diagnose ASPD in Mr. Wong because of the “test results” was because such a diagnosis should be made based on file review and any evidence of a pattern of behaviour. Yet, Dr. Ilacqua seemingly ignored the objective facts in the records and collateral information and, instead, relied on the Mr. Wong’s self-reports such as the TCU and the UPPS-P, which contained no or a limited measures for truth-detection. In cross-examination, Dr. Ilacqua conceded that the tests did not contain a strong measure for exaggeration and they had not been validated to predict risk or recidivism for criminal activity. Dr. Woodside also suggested in re-examination, that Dr. Ilacqua’s conclusion that Mr. Wong was not antisocial, based on his scores on the TCU (evidencing pro-social attitudes) and the UPPS-P (evidencing lack of impulsivity) did not take into account that statistics suggest that 75-80% of the prison population have ASPD.

188Dr. Ilacqua did not agree that Mr. Wong met the criteria of deceitfulness, as shown by repeated lying and the use of aliases, despite evidence of giving false names to the police and lying to the court. He did not think Mr. Wong met the criteria for irritability and aggressiveness despite the threat to kill his mother, the domestic assault conviction, his carrying a lethal weapon and the attempt to kill his former friend/acquaintance. Dr. Ilacqua did not think Mr. Wong met the criteria for irresponsibility in the face of evidence of his failure to sustain employment or honor financial obligations, dropping out of school, not financially supporting his children and failing to go for court-ordered treatment. He did not think the respondent lacked remorse when there was evidence that Mr. Wong seemed indifferent to victims he planned to rob on the wiretap excerpts played to him; to Ms. Brooks, who he assaulted, but blamed for the incident; the police, who he claimed planted the gun in one of the offences he was later convicted of and telling the Court on many occasions that he was going to change his life and get a job or go back to school, but instead returned to crime. Despite being confronted with ample objective and proven evidence of deceitfulness, aggressiveness, irresponsibility and remorselessness, Dr. Ilacqua maintained that those traits were not what he found in Mr. Wong.

189Dr. Ilacqua found that Mr. Wong was not antisocial while in custody despite having reviewed the Institutional Records outlining misconducts, poor behaviour, an assault and drug possession.

190Dr. Ilacqua did not agree with Dr. Woodside’ opinion that ASPD is resistant to treatment. He testified that there are positive treatment outcomes for ASPD and “if there are antisocial traits, if treatment is done and maintained, treatment will probably work”. He relied on an article by Hanson and Yates to lend support for his position (Psychological Treatment of Sex Offenders, Current Psychiatry Rep (2013) 15:348).

191Dr. Woodside testified in chief, and again in re-examination, that there is very little evidence of success rates for the treatment of ASPD and psychopathic traits regarding reduction of recidivism. He pointed out in the re-examination that the study, relied upon by Dr. Ilacqua to demonstrate positive treatment outcomes for ASPD, was not on point with the issues in this hearing, but, instead related to sexual offenders. Dr. Woodside further elaborated that most sex offenders are pro-social and do not meet the criteria for ASPD. In other words, there is no support in the study for positive treatment outcomes for ASPD and the treatment in question “does not help with potential for violence”.

192As a result of these weaknesses in Dr. Ilacqua’s opinion, I find that I am not able to rely on it regarding the level of risk for violent re-offending by Mr. Wong and what can be done to manage any risk posed by him when he is released into the community. The defence assessment is not objective. Dr. Ilacqua’s conclusions are a series of assertions favouring the offender. They are not based on a critical scrutiny of Mr. Wong’s history and the context of the thresholds to be scrutinized by me in s. 753(a)(i) and (ii).

193Along with the other shortcomings in his assessment of Mr. Wong at this hearing, Dr. Ilacqua seems to have placed too heavy a reliance on Mr. Wong’s self-reports about wanting to change and ignored documented antisocial behaviour over many years. He has accepted the respondent’s expressions of wanting to leave his criminal behaviour behind him because of a reliance on Mr. Wong’s collateral supports. Yet, Mr. Wong’s cousin, Ms. Burke, has not been able to help Mr. Wong in the past, and Ms. Campbell, has passively accepted the respondent’s criminal activity and has also been unable to effect any change in him.

194As well, Dr. Ilacqua offers no opinion whether there is a reasonable expectation of control in the community or even a reasonable possibility of one. He has offered no opinion about when Mr. Wong would be ready for release into the community or how much supervision the respondent would need and for how long.

Is Nicholas Wong a Dangerous Offender?

[195]

Is Nicholas Wong a Dangerous Offender?

The Attempt Murder with Firearm (x2) and Discharge Firearm are serious personal injury offences pursuant to s. 753(a) of the Code.

196And, the Crown has also established, beyond a reasonable doubt, the second part of s.753(a) – that Mr. Wong constitutes a threat to the life, safety or physical or mental well-being of other persons by establishing the criteria set out in ss. 753(a)(i) and (ii). The reasons why are as follow.

(i) Section 753(a)(i)

1. Pattern of Repetitive Behaviour

197Repetitive behaviour pursuant to s.753(1)(a)(i) and persistent aggressive behaviour pursuant to s.753(a)(ii) can be established in two different ways. The first is where there are similarities in terms of the kind of offences. The second is where the offences themselves are not similar in kind, but in result, in terms of the degree of violence or aggression inflicted on the victims. Either will suffice. Therefore, the fact that an offender commits a variety of crimes does not mean a pattern does not exist. There is no requirement that the past criminal conduct be the same or similar in substance, order or arrangement (Neve, supra at para. 111).

198A pattern of repetitive behaviour for finding dangerousness pursuant to s. 753(1)(a)(i) must encompass a number of significant relevant similarities between each example of the pattern being considered. There may be differences between the examples, however, “so long as the differences leave the key significant relevant elements of the pattern in place.” (R. v. Dow, 1999 BCCA 177, [1999] B.C.J No. 569 (C.A.) at para. 25).

199The 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” ( R. v. Hogg, 2011 ONCA 840, [2011] O.J. No. 5963 (Ont. C.A.) at para. 40). This is not to be assessed solely on the number of offences, but also on the elements of similarity of the offender’s behaviour between offences. Where there are fewer offences, more precise similarities will be required in order to establish the pattern. Where there is a “degree of violence or aggression threatened or inflicted on the victims, the requirement for similarity in terms of the kinds of offences is not crucial when the incidents of serious violence and aggression are more numerous” (R. v. Jones (1993), O.A.C.317 (C.A.).

200The pattern of repetitive behaviour referred to in subparagraph (i) may be made out where there is only one other incident, but both incidents display elements of similarity in the offender’s behaviour (R. v. Langevin (1984), 1984 CanLII 1914 (ON CA), 11 C.C.C. (3d) 336 (Ont. C.A.).

201All parts of the most recent offence (the predicate offence in Mr. Wong’s case) need not be of “like form, order and arrangement” to the pattern which emerges from earlier offences. However, the pattern “….must contain an element of the dangerous behaviour that was not restrained in the past; and there must be a likelihood that the same behaviour in the future will not be restrained and will cause death or injury” (Dow, supra at para. 19 - 22).

202In determining whether a pattern exists, one cannot particularize the details of the offences to such a degree that it obscures the common characteristics which reveal the essential elements of the pattern (Dow, supra at para. 23).

203Not all criminal behaviour forms part of a pattern under s. 753(1)(a)(i). To be considered part of the pattern for the purpose of a dangerous offender analysis, the past behaviour must involve some degree of violence or attempted violence or endangerment or likely endangerment. The past behaviour may be more or less serious than the predicate offence and still comprise part of the pattern (Neve, supra at para. 110).

204Mr. Wong has now been convicted of four distinct offences related to the possession, trafficking and use of firearms. The illegal possession of firearms is a tool of the trade for drug traffickers. Serious bodily harm and death are often the results (R. v. Simon, [2010] ONCA 754, at para. 1; R. v. Nur, [2015] SCC 15 at para. 137).

205There are a sufficient number of significant relevant similarities between the firearm offences for which the respondent has been convicted to make the pattern required for designation pursuant to s. 753(1)(a)(i). The firearms were:

i) loaded;

ii) concealed;

iii) carried in a public place;

iv) possessed for the purpose of drug trafficking;

v) possessed while Mr. Wong was prohibited by court order for another firearm offence;

vi) possessed while Mr. Wong was affiliated or conspiring with others (or while involved in a gang).

206Although not required for purposes of establishing the pattern, weapon possession offences can constitute violent or serious personal injury offences. On the evidence before me, it is not difficult to find that Mr. Wong used the firearms in his possession to seek revenge on and rob innocent people and other drug dealers. I conclude that the respondent consistently, persistently and tenaciously carried and used weapons in the course of his lifestyle as a gang member and drug dealer.

2. The Predicate Offence Forms A Part of the Pattern

207Mr. Wong was out of custody mere months before he committed the predicate offences involving the proposed drug transaction with Mr. Tran. His pattern of possessing, concealing and trafficking in firearms was dangerous given that he used the weapons as a drug trafficker. But, the level of his behaviour escalated dramatically when he tried to kill Mr. Tran and Mr. Park in the robbery to acquire the two pounds of marihuana. The common factors of the respondent’s past continued into the commission of the Index offences. He used a firearm to drug traffic, intimidate and rob the victims. He did so in the company of two other criminal peers. The incident was planned and premeditated. I would go so far as to say that the plan to rob Mr. Tran probably started while Mr. Wong and Mr. Tran first talked in jail about the respondent wanting to purchase the drugs. The elements of similarity in his behaviour are evident. In the context of Mr. Wong’s past firearm possession and trafficking offences, a pattern of behaviour of sufficient similarity forms the pattern of repetitive behaviour of which the Index offences form a part.

3. The Pattern Shows a Failure by the Offender to Restrain His Behaviour

208Not much need be said about this element of the criteria in s. 753(a)(i). It is abundantly clear that from a very young age, Mr. Wong has been out of control, unwilling to restrain his behaviour and entrenched in a criminal lifestyle. The education, probation, institutional and wiretap evidence lays out a context of past behaviour - one of a young boy and later a young man who has failed to restrain his behaviour, when at home, in school, incarcerated, on probation or out in the community. When offered opportunities to take programs to help him change his behaviour, he has chosen not to be involved. The fact that he has now achieved a high school diploma while incarcerated for the predicate offences is commendable.

4. The Pattern Shows a Likelihood of Causing Death or Injury or Inflicting Severe Psychological Damage to Other Persons Through the Offender’s Failure in the Future to Restrain His Behaviour

209The term “likelihood”, as it appears in s. 753(1)(a)(i) in relation to potential future misconduct by an offender, refers to a standard that is more than simple possibility. At the very least, “likelihood” of death, injury or severe psychological damage to other persons sufficient for a dangerous offender designation must mean that such outcomes are more likely than not (Neve, supra at para 114).

210In the British Columbia Court of Appeal case of R. v. J.S.M. (2003), 2003 BCCA 66, 173 C.C.C. (3d) 75, Easson, J.A. discussed the meaning of the term “likelihood” in this part of the s. 753(a)(i) test. He said, at paragraph 27 of his reasons, “The purpose [of the legislation], as it applies to this case, is to protect young boys from being victimized by the respondent. That purpose cannot be achieved by mere possibility. But the test which must be met is a ‘reasonable possibility’”.

211The context in which the offender committed past criminal conduct is important in determining whether or not past conduct fits within the pattern necessary for s. 753(1)(a)(i). That context can also be central to assessing the likelihood of the offender’s behaviour continuing in the future as a result of his failure to restrain himself (Neve, supra at para 118 )].

212The psychiatric opinion evidence of Dr. Woodside was presented by the Crown in order to convince me that there is a reasonable possibility that Mr. Wong will continue to commit offences similar to the ones he has already been convicted of and, as a result, will likely cause the injuries outlined in s.753(a)(i). Dr. Ilacqua offered an opinion for the defense that, with proper treatment programs which would address and bring about a change in the dynamic factors which have contributed to Mr. Wong’s past criminal activity, he believes that Nicholas Wong is capable of restraining his harmful behaviour in the future and it is less likely that he will inflict injury on others in the future.

213I accept the evidence of Dr. Woodside and have drawn conclusions from that evidence, which I will outline more fully in my reasons for the disposition on sentence in this matter. I am satisfied that the pattern of Mr. Wong’s behaviour, including the predicate offences, shows a likelihood that Mr. Wong will cause death, injury or severe psychological damage through his failure to restrain his behaviour in the future. At page 33 of his Psychiatric Assessment, the doctor said the following:

“In summary, I believe there is significant reason for pessimism, from a psychiatric perspective, regarding this individual’s future manageability within the community, even if strict conditions were put in place and Mr. Wong were to agree to follow through with conditions and treatment recommendations.”

214Because Mr. Wong presents with anti-social personality disorder and significant psychopathic personality traits, a lack of stable employment history, low academic achievement and unstable relationships, Dr. Woodside opined that those variables should be considered static variables which would not be specifically responsive to intervention. This is where he and Dr. Ilacqua disagreed. Dr. Woodside found that, overall, Mr. Wong was at a high risk for violent re-offence from a purely clinical perspective and also from an actuarial perspective. At page 27 of his report he wrote, “His repeated carriage of weapons and use of the same in the index offenses also speaks to some degree of the anticipated severity of future potential re-offenses”.

215Based on his opinion and the evidence on the application, I find that, in fact, Mr. Wong’s pattern of behaviour shows more than a reasonable possibility that he will cause death or injury or severe psychological damage to other persons through his failure in the future to restrain his behaviour.

216Mr. Wong constitutes a threat to life, safety or physical or mental well-being of other persons and is a dangerous offender pursuant to s. 753(a)(i).

(ii) Section 753(a)(ii)

1. Pattern of Persistent Aggressive Behaviour; and

2. The Predicate Offence Must Form a Part of That Pattern

217Unlike the “pattern of repetitive behaviour” in s.753(1)(a)(i), the case law has not interpreted this subsection as requiring any particular degree of similarity between the instances of aggressive behaviour. To be persistent, the past aggressive behaviour need not be continuous, but it must be “persistent” in the sense of enduring or constantly repeated (R. v. Robinson, [2011] B.C.J. No. 1001 (B.S.S.C) at para. 122; R. v. J.Y. (1996), 1996 CanLII 4916 (SK CA), 104 C.C.C. (3d) 512 (Sask. C.A.) at paras. 25-27; R. v. Morin (1998), 1998 CanLII 13883 (SK KB), 173 Sask R. 101 (Sask. Q.B.) at para. 85).

218Aggressive behaviour does not require an element of physical force. Instead, aggressive behaviour “is a vague term that can run the gamut between ‘pushy and overly-confident’ to ‘extremely violent’” (R v Campbell, [1992] O.J. No 2079 at p.23 (O.C.J); R v R.J.M, [2008] O.J. No 5991 at para 70 (S.C.J.); R v. S.L., [2011] O.J. No.6078 at para. 32 (O.C.J.).

219In R. v. Campbell, supra at p. 23 the Ontario Court gave a broad and expansive definition to “aggression” in the context of pedophilia. Fairgrieve J. found that the term does not require an element of physical force, violence or hostility beyond the offender’s persistent and tenacious pursuit of his sexual interests. His Honour wrote the following:

….the Oxford Dictionary, among its definitions of “aggressive”, includes “self-assertive” and “offensive”, and “aggression” is defined as “hostile or destructive tendency or behaviour”. Giving the wording in s.753(1)(a)(ii) its usual meaning, it seems to me that taking the initiative in sexually violating children, incapable in law of consenting to the acts, is properly regarded as “aggressive” conduct.

220Mr. Wong’s previous convictions and the predicate offence, which is an escalation of his previous criminal conduct, are very similar. I have already set out that it involves a pattern of possessing loaded firearms to commit violent offences and drug trafficking alone or with criminal associates. The fact that his behaviour is persistent and aggressive is without doubt. The record shows frequent serious criminal activity. Between the ages of 19 and 23 years, Mr. Wong has been out of custody for approximately 10 ½ months. In those months, he committed 3 firearms offences and attempted to kill Mr. Tran. The Crown summarized, and I accept as a fact, the persistence of his criminal behaviour as follows:

A summary of some other pertinent facts include: 9 convictions for breaches of court order; 4 firearm related offences since 2003; an involvement in criminal activity every year since his 2003 firearm conviction (with the exception of 2006); an involvement with firearms since the age of 17; he was out of custody only 7 months between his 2nd conviction for possession of a loaded firearm and trafficking in firearms; it was only 1½ months from sentencing for his 2nd possession of a loaded firearm until he was trafficking in firearms; it was only 3½ months from his release from custody on trafficking in firearms until he was using a firearm to attempt to kill (Crown’s Written Submissions, p12).

221Mr. Wong has been convicted of offences of aggression. The wiretap evidence from Project Kryptic shows the context of his criminal lifestyle. He was engaged in acts of revenge, drug or firearms trafficking and planning attacks on innocent members of the public to rob them of their belongings. As a soldier in the Driftwood Crips street gang, Mr. Wong spoke of persistent and aggressive crimes that he planned to commit. This context explains the convictions he has acquired over the years.

222I rely on the opinion of Detective Backus when he set out the following in his report at Tab1, page 29:

“Based on this report it is my opinion that Nicholas WONG was a member of the Driftwood Crips during the year 2007. Based on intercepted calls WONG fits the profile of a Soldier within the Driftwood Crip ranks. A soldier normally has access to a firearm and does certain tasks for the hierarchy of the gang, in this instance Nadel JOHNSON, Michael JOHNSON and Jovahn CAMPBELL. These tasks include dealing drugs, protecting the gang territory, intimidation and reporting back to them should there be any incidents. A Soldier may also store drugs, firearms and/or ammunition for gang members.

WONG’s criminal record indicates that in November 2008 he was convicted of possessing a firearm or ammunition contrary to the Prohibition Order he received on the charges stemming from Project Kryptic. In 2010 WONG was again involved in an apparent robbery over a “package”. During this robbery WONG was identified as the person responsible for firing a handgun at the victim striking him once and hitting the car three (3) times. Several months after this incident WONG engaged police in a vehicle pursuit to evade capture - he was arrested shortly after and charged with attempted murder, discharge firearm with intent to wound and

possession of a Firearm contrary to a Prohibition Order (which stemmed from Project Kryptic). This would strongly indicate in my opinion that WONG continued his gang lifestyle into well into 2010.”

3. The Pattern Shows a Substantial Degree of Indifference By the Offender Respecting the Reasonably Foreseeable Consequences of His Behaviour

223As with s. 753(1)(a)(i), the context of the offender’s past criminal conduct can play an important role in the dangerous offender designation analysis pursuant to s. 753(1)(a)(ii). Context can be used to determine whether or not the pattern has shown a substantial degree of indifference on the part of the offender (Neve, supra at para 118).

224In examining whether Mr. Wong’s conduct demonstrates indifference, his attitude must be examined more generally. A demonstration of indifference which is limited to the time at which the offence was committed is not sufficient. A broader examination of the offender’s personality is required in order to determine if the offender lacks compassion towards others. The Crown must demonstrate that the offender has a conscious, but uncaring awareness of causing harm to others and that this has occurred over a long period, involving frequent acts with significant consequences. Expert evidence can be drawn upon in deciding whether the previous acts of aggressive conduct demonstrate the requisite indifference (R. v. George (1998), 1998 CanLII 5691 (BC CA), 126 C.C.C. (3d) 384 (B.C.C.A.) at para. 23; R. v. Robinson, supra at para. 123; R. v. Vanderwal, 2010 ONSC 265, [2010] O.J. No. 246 (Ont. S.C.).

225I will not repeat what I have already set out by Det. Backus and the evidence in the application of the wiretap conversations of Mr. Wong planning criminal activity. The conversations are evidence of a pattern of behaviour and the indifference required by this section. The convictions are confirmation of his substantial degree of indifference respecting the reasonably foreseeable consequences of his behavior.

226Mr. Wong’s indifference is also explained by Dr. Woodside. At page 28 of his report, Dr. Woodside wrote the following:

“Mr. Wong’s history and behaviour in both past and current offenses suggests significant difficulties in thinking of the consequences of his criminal behaviour and the antecedents of that behaviour. While he has at least superficially accepted responsibility for his offending behaviour in the past, he has repeatedly returned to involvement in criminal activity and appears to have escalated in terms of his willing to make use of violence in order to achieve his goals. In the case of the Index offenses, he put others at risk of death in order to effect a theft of drugs in a planned fashion. He has shown himself capable of engaging in instrumental violence (where violence is seen as a means to an end rather than flowing from effective arousal such as anger). From a psychiatric perspective, this is consistent with his showing a significant degree of indifference to the potential effects of his behaviour on his victims. I believe his capacity to empathize with others, in particular his victims, and to experience genuine remorse for his transgressions, is extremely limited.”

227The Crown has also proven Mr. Wong constitutes a threat to life, safety or physical or mental well-being of other persons and is a dangerous offender pursuant to s. 753(a)(ii).

G. DISPOSITION

[228]

Disposition

Having found Mr. Wong to be a dangerous offender, s. 753(4.1) requires that I impose a sentence of detention in a penitentiary for an indeterminate period unless I am satisfied by the evidence adduced on the hearing of this 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 Mr. Wong, of murder or a serious personal injury offence.

229I am not able to find, on all the evidence before me, that a sentence for the offence without any form of supervision pursuant to s.754(4)(c) is appropriate. It is clear that Mr. Wong is a substantial risk to the community and requires some form of supervision once released. The question then becomes whether there is enough evidence on the application to warrant a determinate sentence and a long-term supervision order pursuant to s.753(4)(b).

230Section 753(4.1) should be read as a codification of the post-Johnson (R. v. Johnson 2003 SCC 46, [2003] S.C.J. No. 45) caselaw dealing with when a trial judge should impose an indeterminate sentence and when it should impose a lesser penalty. At paragraph 44 of the decision, the Court wrote the following:

…a sentencing judge should declare the offender dangerous and impose an indeterminate period of detention if, and only if, an indeterminate sentence is the least restrictive means by which to reduce the public threat posed by the offender to an acceptable level. The introduction of the long-term offender provisions expands the range of sentencing options available to a sentencing judge who is satisfied that the dangerous offender criteria have been met. Under the current regime, a sentencing judge is no longer faced with the stark choice between an indeterminate sentence and a determinate sentence. Rather, a sentencing judge may consider the additional possibility that a determinate sentence followed by a period of supervision in the community might adequately protect the public.

231The onus is not on the Crown to prove that an offender, who meets the dangerous offender criteria, cannot be controlled by a less restrictive sentence. (R. v. F.E.D., 2007 ONCA 246, [2007] O.J. No. 1278 (Ont. C.A.) at paras. 38-55; R. v Simon, 2008 ONCA 578, [2008] O.J. No. 3072 (Ont. C.A.) at para. 88).

232A lesser sentence, in this case, would include a long-term offender designation pursuant to 753.1. Mr. Wong is eligible for a determinate sentence in that any sentence imposed for the Index offence would be more than two years. He does not meet the criteria for a long-term designation, however, because he poses a substantial risk to reoffend and there is no evidence at this hearing that there is a reasonable possibility of eventual control of that risk in the community.

233The evidence that I do accept is that of Dr. Woodside who testified that Mr. Wong posed a substantial risk for violent re-offence. He went on to acknowledge that whether there is a

reasonable possibility or expectation of eventual control of the risk in the community is not a concept particularly well-defined from a psychiatric perspective. However, Mr. Wong’s relevant diagnoses are Antisocial Personality Disorder and significant psychopathic traits. Although the research literature suggests a general decrease in violent reoffending among all individuals after the age of 40 to 45, Mr. Wong would not be expected to experience a diminishment in violent offending for many years in the future. Mr. Wong’s score on the PCL-R, 28.2 or high in psychopathic traits, indicates that he would have a poorer response to treatment and/or supervision, with a greater likelihood of refusing treatment outright and dropping out of treatment. Dr. Woodside also concluded that because Mr. Wong suffered from ASPD and there is little medical evidence to support that he would benefit from treatment, his prognosis for being controlled in the community was poor in comparison to other offenders.

234The meaning of the phrase “reasonable possibility” in s. 753.1(1)(c) of the Code, that a lesser measure pursuant to s.753(4.1)(b) & (c) will adequately protect the public” has been discussed by the Ontario Court of Appeal in R. v. McCallum, 2005 CanLII 8674 (ON CA), [2005] O.J. No. 1178 (Ont. C.A.) at para. 47:

Case law from the court and from the British Columbia Court of Appeal under the former dangerous offender legislation and the amended provisions has held that in order to achieve the goal of protection of the public under the dangerous offender and long-term offender provisions, there must be evidence of treatability that is more than an expression of hope and that indicates that the specific offender can be treated within a definite period of time: R. v. Poutsoungas (1989) 1989 CanLII 7104 (ON CA), 49 C.C.C. (3d) 388 (Ont. C.A.); R. v. Higginbottom (2001), 2001 CanLII 3989 (ON CA), 156 C.C.C. (3d) 178 (Ont. C.A.).

235In R. v. Allen (2007), 2007 ONCA 421, 221 C.C.C. (3d) 261 (Ont. C.A.) at para. 31, Laskin J.A. held that the test for whether an offender can be managed in the community and whether there is a reasonable possibility of doing so is “not some vague hope” that it can be done.

236Dr. Ilacqua’s assessment was not based on tangible options for Mr. Wong’s treatment or his being managed in the community. His assessment offered no time frame for release or framework for supervision which could address the reasonable possibility for control of the risk Mr. Wong poses. Dr. Ilacqua did not assess whether Mr. Wong’s use of controlled substances posed any impediments to his being controlled in the community.

237A court should only declare a person a long-term offender and not a dangerous offender if the court is satisfied that it is probable that after a fixed period of incarceration he can be controlled in the community by a supervision order and after that supervision order he can remain in the community unsupervised (R. v. R.J.R., [2001] O.J. No. 5015). There is no evidence before me on this hearing of any fixed period of incarceration after which Mr. Wong can be controlled in the community by a supervision order or whether he can safely remain in the community after the order has expired.

Burnout Theory

[238]

Burnout Theory

In the pre-long-term offender days, the Ontario Court of Appeal limited the use of the “burnout” theory as a basis for not imposing an indeterminate sentence (R. v. Poutsoungas, supra). The Court of Appeal has looked at burnout theory recently and rejected it on the basis that “burnout was speculative” (R. v. Herbert, 2006 CanLII 6449 (ON CA), [2006] O.J. No. 829 at para. 8 (Ont. C.A.); R. v. Grayer, 2007 ONCA 13, 215 C.C.C. (3d) 505 (Ont. C.A.), at para. 74; R. v. G.L., 2007 ONCA 548, [2007] O.J. No. 2935 (Ont. C.A.) at paras. 45-49). The defence has not argued that a long-term offender designation should be made due to Mr. Wong’s age. He is 30 years old. In fact, Dr. Woodside concluded that because Mr. Wong began to offend so young, he will not be expected to see a significant decrease in violent offending for many years in the future.

Evidence Advanced at the Hearing

[239]

Evidence Advanced at the Hearing

Section 753 (4.1) refers to “evidence adduced during the hearing”. The Ontario Court of Appeal has stated that although there is no onus on the offender to offer evidence, in the absence of evidence from the offender, his suitability for supervision in the community would be speculative at best (R. v. Grayer, 2007 ONCA 13, [2007] 215 C.C.C. (3d) 505 (Ont. C.A.) at para. 67). Mr. Wong has offered evidence through Dr. Ilacqua that he is remorseful and wishes to take treatment in order to change his life. He has secured his high school degree after having dropped out of school as a young man. I have considered his expression of wanting treatment, but place little weight on it in the context of similar expressions to other courts in the past. I have also taken into account his representations about going back to school or working rather than committing crime to probation officials, which turned out to be false. And even though Mr. Wong may now realize that treatment might indeed be the best option for him to improve his life, I am doubtful whether, once out of custody and back in the community, he could actually follow through with it.

Resources

[240]

Resources

Resort to the long-term offender regime can only be made when there is evidence that the offender could be meaningfully treated within a definite period of time and that the resources required to implement the necessary supervision conditions for eventual control in the community are available. Where the restrictive provisions necessary to control the risk of re-offending by an offender and to protect the public essentially replicate “jail-like” conditions in the community, an indeterminate sentence is warranted (R. v. G.L., 2007 ONCA 548, [2007] O.J. No. 2935 (Ont. C.A.) at paras. 61-62; R. v. M.J.O. [2008] O.J. No. 1774 (Ont. C.A.) at paras. 131-137; R. v. J.M.H., [2008] O.J. No. 4865 (Ont. C.A; R. v. D.J.S., [2015] BCCA 111 (B.C.C.A.) ). Ms. Briggs from CSC suggested that Mr. Wong would be classified as a “high risk, high needs” inmate if given a LTO status with a determinate sentence and would likely be placed in a maximum security institution. He would then have to consent to treatment during the determinate sentence for it to be administered. The only ramification for refusing would be his parole eligibility. Once released from the institution, even if only on statutory release, he would be offered little treatment in the community. Based on this evidence, and the lack of evidence about any determinate period in which Mr. Wong’s risk for violent re-offence could be reduced, there is no reasonable possibility of controlling him in the community – especially in light of his poor history of complying with treatment in or out of custody.

Tried and failed not a prerequisite

[241]

Tried and failed not a prerequisite

Doherty, J.A., set out in R. v. Simon, 2008 ONCA 578, [2008] O.J. No. 3072 (Ont. C.A.) at para. 93:

Nothing in the language Parliament used in the dangerous offender provisions suggests that failed or refused treatment is a precondition to a dangerous offender designation.

242Mr. Wong has not only shown a resistance to engage in treatment. The evidence on this application strongly suggests, for multiple reasons, that there is no reasonable possibility of eventually controlling him in the community by imposing a determinate sentence and a long term offender order.

243Mr. Wong is declared to be a dangerous offender and sentenced to detention in a penitentiary for an indeterminate period.

McWatt J.

Released: November 18, 2016

APPENDIX B

Appendix B