CITATION: R. v. R.S., 2016 ONSC 7767
COURT FILE NO.: CR/14/50000/6180000
DATE: 20161214
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
R.S.
Mr. P. Zambonini, for the Crown/Applicant
Mr. D. Rechtshaffen and Mr. D. Bloom for the Respondent
HEARD: September 26th and 27th, 2016
Publication of Any Information Tending to reveal the identity of the Complainant Herein is Prohibited under s. 486.4 of the Criminal Code of Canada
M. Forestell J.
Reasons for SENTENCE/
DANGEROUS OFFENDER APPLICATION
overview and positions of the parties
[1] The Respondent, R.S., was tried before me without a jury on a 17-count indictment. I found Mr. R.S. guilty on August 6, 2015, of 13 of the 17 counts. The convictions were for the following offences:
(1) Sexual assault with a weapon;
(2) Breach of probation;
(3) Mischief under $5,000;
(4) Threaten death x4;
(5) Forcible confinement;
(6) Criminal harassment;
(7) Intimidation of a justice participant x2; and
(8) Attempt to obstruct justice x2.
[2] The Crown seeks to have Mr. R.S. declared to be a dangerous offender and sentenced to an indeterminate period of custody in respect of the following "serious personal injury offences": sexual assault with a weapon s. 272(1)(a); forcible confinement (s. 279(2)); and criminal harassment (s. 264(3)(a)).
[3] Alternatively, if I am satisfied that Mr. R.S. should be declared a dangerous offender, but I am satisfied that a lesser measure than an indeterminate sentence would adequately protect the public, the Crown submits that a determinate sentence of 12 years’ imprisonment before credit for pre-trial custody should be imposed, followed by a 10-year Long Term Supervision Order (“LTSO”).
[4] Counsel for Mr. R.S. concedes that the enumerated counts are serious personal injury offences as defined under s. 752 of the Criminal Code, R.S.C., 1985, c. C-46, but submits that the Crown has not met its onus of proving beyond a reasonable doubt that Mr. R.S. meets the criteria to be designated a dangerous offender.
[5] Alternatively, counsel for Mr. R.S. submits that if Mr. R.S. is found to meet the criteria to be designated a dangerous offender, an indeterminate sentence should not be imposed because there is a reasonable expectation that a sentence other than an indeterminate sentence would adequately protect the public. The position of counsel on behalf of Mr. R.S. is that a custodial sentence of 8 years before credit for pre-trial custody and a 10-year LTSO would adequately protect the public.
[6] The relevant criteria for a designation of dangerous offender are set out in subsections 753(1)(a)(i), 753(1)(a)(ii) and 753(1)(b) of the Criminal Code.[^1]
[7] The onus is on the Crown to prove beyond a reasonable doubt that Mr. R.S. meets the definition of a dangerous offender.[^2]
[8] Subsections 753(4) and (4.1)[^3] permit me to impose a determinate sentence or a determinate sentence with a LTSO, rather than an indeterminate sentence, even though the offender is designated a dangerous offender.
[9] The issues on this application are: 1. Whether Mr. R.S. meets the definition of a dangerous offender pursuant to any of the three subsections relied upon by the Crown; and 2. If so, whether a sentence other than an indeterminate sentence would reasonably be expected to adequately protect the public from Mr. R.S.. In the reasons that follow I will review the evidence on this application before setting out my analysis of these issues and my conclusions.
Evidence
Overview
[10] The following exhibits were filed on the Dangerous Offender application:
(1) The consent of the Attorney General to the Application;
(2) The report of Dr. Philip Klassen, the assessing psychiatrist;
(3) The Victim Impact Statement of N.J.;
(4) The Curriculum Vitae of Dr. Klassen; and,
(5) The Correctional Service Canada Community Supervision Information Package.
[11] In addition to the material filed as part of the record, I heard viva voce evidence of two witnesses: Dr. Philip Klassen, a forensic psychiatrist who was called by the Crown to give expert opinion evidence on Mr. R.S.’s diagnosis, risk and prognosis; and Ms. Meaghan Jones, Parole Officer Supervisor for the downtown Toronto Parole office of Correctional Service Canada who was called by the defence to give evidence with respect to the treatment available in the penitentiary and with respect to the supervision and treatment of offenders by Correctional Service Canada (“CSC”) after release from custody.
[12] Finally, I have considered the evidence from Mr. R.S.’s trial on the predicate and related offences.
Personal Circumstances and background of the Offender
[13] The trial evidence provided some information about the personal circumstances and background of Mr. R.S.. Mr. R.S. is 38 years-old. He was born in Jamaica on March 24, 1978. He came to Canada around 2001. He had some sporadic employment in Canada as a welder and forklift operator and in a warehouse He also worked promoting events.
[14] Other than the trial evidence there is little information about Mr. R.S.’s personal circumstances. Mr. R.S. declined to participate in the assessment and provided no information. Mr. R.S. came to Canada when he was about 23 years-old and he did not pursue any education in Canada. His educational background in Jamaica is not known. One of his former partners, M.S., spoke to Dr. Klassen and provided some information about Mr. R.S.’s family. His mother and sisters live in Jamaica. He has a brother who lives in Canada. His father lives in the United States.
[15] Mr. R.S. has four or five children from four relationships.
Criminal Antecedents Prior to the Predicate Offences
[16] Mr. R.S. has a criminal record. He was convicted of assault and failing to comply with a recognizance in 2007. The victim of the assault was C.M., a former partner and mother of his then 2 year-old son. On May 9, 2007 Mr. R.S. followed C.M. to their son’s daycare and demanded that she speak with him. He grabbed her shirt and tried to pull her outside. She fell into some cupboards. The fail to comply conviction was for contacting C.M. while on a recognizance that prohibited him from doing so. Mr. R.S. received a sentence of 45 days’ imprisonment to be served intermittently.
[17] Also in 2007, Mr. R.S. was convicted of assault in relation to events that occurred on November 8, 2006. Mr. R.S. and C.M. were arguing and Mr. R.S. accused C.M. of infidelity. He punched her in the face. Mr. R.S. received a suspended sentence 18 months’ probation. The sentence was imposed In January 2008.
[18] In 2011 Mr. R.S. was convicted of assault, assault with a weapon and two counts of failing to comply with a recognizance. These offences related to the victim in the predicate offences. Mr. R.S. threw a telephone at the victim, knocked her out of her chair and threw the chair at her. Later, he hit her on the thigh with a hairbrush when she refused to have sex with him. After he was arrested and charged in relation to the assaults, he came to the victim’s apartment in violation of his bail.
[19] On January 21, 2012 Mr. R.S. was at the home of a girlfriend, M.S. He was asked to leave and refused to do so. Mr. R.S. punched M.S.’s mother. Mr. R.S. was convicted of assault and received a suspended sentence and one year of probation in addition to 2 days of pre-trial custody.
[20] On March 22, 2012 Mr. R.S. hid in a stairwell in the apartment building where M.S. resided. When M.S. left her apartment with her five year-old daughter Mr. R.S. grabbed her, dragged her into her apartment, slammed her to the floor and struck her. On April 19, 2012 Mr. R.S. waited for M.S. near the mailboxes in her building and grabbed her, entered her apartment and slapped and kicked her. He was convicted of two counts of assault and two counts of failing to comply with a recognizance in relation to these events. He received a suspended sentence and two years’ probation in addition to five months of pre-trial custody.
Predicate and Related Offences
[21] The offences for which I must now sentence Mr. R.S. all occurred within the context of a domestic relationship with the victim N.J.. I have set out in detail the evidence of the relationship and the offences in my trial judgment in this matter (2015 ONSC 4952 at paragraphs 147-179). I rely on my detailed findings in the trial judgment and will not repeat those findings here. To provide context I will summarize some of the relevant facts underlying the convictions.
[22] Mr. R.S. and the victim became involved in a relationship in April of 2008. Mr. R.S. first assaulted the complainant in October of 2008. He slapped her across the face because he felt she was being disrespectful. Further assaults followed. The victim, in her evidence at trial, testified that there were frequent assaults.
[23] Initially the victim continued to see Mr. R.S. because she had feelings for him and hoped that he would change. They had a son together. By May of 2012, the victim no longer wanted to be in a relationship with Mr. R.S.. In an effort to extricate herself from the relationship, she moved out of her apartment and moved in with her mother and at another point moved in with her aunt. Although Mr. R.S. had not lived with the victim, he had spent nights with her and had a key to her apartment. When the victim tried to end the relationship, the violence escalated. Mr. R.S. held the victim at knifepoint after luring her to her apartment and threatened her at gunpoint in her parking garage. When the victim called the police and Mr. R.S. was arrested, he threatened her family. When she recanted and Mr. R.S. was released, he returned to the victim. The victim felt that she had no alternative but to continue to see Mr. R.S..
[24] In November of 2013 Mr. R.S. and the victim argued. They had little contact in the week following the argument.
[25] On November 16, 2013, N.J. went to work a shift from 3 to 11 pm at West Park Health Centre where she was employed as a nurse.
[26] N.J. left the Health Centre just after 11 pm. Before getting into her car she looked to see if Mr. R.S. was in the area. She was concerned because in the past, he had waited for her and jumped out and attacked her. She did not see him and got in her car.
[27] As she was driving away from the Health Centre she felt someone grab her ponytail. She turned and saw Mr. R.S. with what appeared to be a handgun pointed at her head. She also saw that the back of the rear driver’s side seat was folded down in a manner that provided access from the trunk to the rear seat.
[28] N.J. began crying and Mr. R.S. told her to calm down, that he was not there to hurt her. He told her to stop the car and she did. She began to reach to open the door and he told her not to touch the door. He reached over and locked the door and then climbed into the front passenger seat. He asked her why she could not be with him. They spoke about their relationship for a period of time. He then told her that he wanted to have sex with her. He said that he wanted her to follow him to his house. N.J. refused to follow him. She did not want to be alone in his house with him. When she refused to come to his house he said ‘then we will just do it right here.’ He told her to drive somewhere else and directed her to a more secluded street.
[29] They stopped and then talked for a short time. Mr. R.S. asked N.J. why she did not want to be with him. She believed that she said something like, “You are going to kill me one day.” Mr. R.S. said that if he killed her they would not find her body. N.J. asked what would happen to their son and Mr. R.S. replied, “You are acting like your mother could not take care of him.” Mr. R.S. asked her whether she was living in her apartment. N.J. had left her apartment and was living with her mother at the time because she was afraid that Mr. R.S. would come to her apartment. Mr. R.S. told her that he had taken the key to her apartment from her car that day and he had gone to the apartment. He told her that he had seen a blanket on the couch.
[30] Mr. R.S. complained that he was institutionalized because N.J. was always sending him to jail.
[31] Mr. R.S. then told the victim to get in the back seat. Although she did not want to have sex with Mr. R.S. she complied with his direction. She got out of the car and went into the back seat. He told her to take off her pants. When she did not do so he took off one leg of her pants. He positioned her and had intercourse with her. He did not wear a condom and she believed that he ejaculated. When he finished he pulled his pants back on. He left the car and told N.J. to meet him the next day to fix the car window that he had broken to gain access to the car.
Victim Impact
[32] I have considered the Victim Impact Statement of N.J. N.J. has suffered physically and emotionally. Her children have also been affected by the offences. The impact on N.J. and her family is ongoing and serious.
Assessment Report and testimony of Dr. Philip Klassen
Overview
[33] An assessment of Mr. R.S. pursuant to s. 752.1(1) of the Criminal Code was conducted by Dr. Philip Klassen, a forensic psychiatrist. Dr. Klassen’s report, dated December 21, 2015, was filed with the Court. Dr. Klassen gave expert opinion evidence at the hearing.
[34] Dr. Klassen reviewed synopses related to some of Mr. R.S.’s charges and convictions, transcripts of court proceedings in relation to some of Mr. R.S.’s prior charges, information from the Ministry of Community Safety and Correctional Services, transcripts of Mr. R.S.’s testimony in the trial before me and the reasons for judgment on the charges before me. The defence conceded the accuracy of the historical information relied upon by Dr. Klassen subject only to corrections to the facts underlying some of Mr. R.S.’s prior convictions which were addressed during the testimony of Dr. Klassen. On that basis, it was agreed between the parties that the foundational records would not be filed by the Crown.
[35] Mr. R.S. declined to participate in the assessment and Dr. Klassen was not able to interview Mr. R.S.. There was little information available about Mr. R.S.’s early life.
Supervision History
[36] Dr. Klassen noted that Mr. R.S. was on probation in 2008 and in 2011. He was described as polite and cooperative in the probation records.
[37] When Mr. R.S. was on probation, he attended the Partner Assault Response (“PAR”) program between February and June of 2009. He attended all of the sessions and was reported to have done well in the program. He was reported to have taken full responsibility for his conduct and to have admitted verbal and physical abuse of partners and power and control tactics.
[38] He attended the PAR programme again in late 2011 and early 2012. He was not able to complete the programme because he was arrested on new charges. In 2013 Mr. R.S. again attended the PAR programme and attended 13 out of 16 sessions.
Information from M.S.
[39] Dr. Klassen spoke with M.S. and received information about Mr. R.S.’s family and background as well as information about the history of the relationship between Mr. R.S. and M.S.
Diagnosis
[40] Dr. Klassen offered the opinion that Mr. R.S. does not appear to have a major mental illness. He testified that Mr. R.S. does appear to have difficulties in two domains of adult adaptation: relationship function and employment function. Dr. Klassen’s opinion was that Mr. R.S. meets the adult criteria for antisocial personality disorder. He could not make a formal diagnosis of antisocial personality disorder because he did not have sufficient information about Mr. R.S.’s childhood and adolescence to determine whether Mr. R.S. met the criteria for conduct disorder as a child.
Risk Assessment
[41] Actuarial or structured methods of risk assessment are considered to be the most accurate methods of predicting the risk of recidivism. Dr. Klassen was not able to score several of the actuarial tools. He was unable to score the PCL-R, the VRAG, the SORAG or the HCR-20 because of the limited information available.
[42] Dr. Klassen was able to score the ODARA and the STATIC-99.
[43] The ODARA is an instrument used to predict domestic violence recidivism. Dr. Klassen was unable to score 2 of the 13 items on the instrument. Mr. R.S.’s score on the remaining items was 8. A score of 7 or greater places a person in the highest risk category. Similar-scoring individuals recidivated violently at a rate of 70% over approximately 5 years’ opportunity in the community.
[44] The STATIC-99 is a 10-item scale for appraising sexual and/or violent recidivism. There was uncertainty around two of the items. Mr. R.S.’s score is either 5 or 6 until he reaches age 40 when his score will be 4 or 5. The scale measures risk as compared to the ‘average’ sexual offender. Similar scoring individuals were convicted of violent or sexual offences over 10 years’ opportunity in the community at the following rates: at 4 at a rate of 41%, at 5 at a rate of 46% and at 6 at a rate of 52%. Dr. Klassen did not place a great deal of weight on the STATIC-99 which is directed at risk assessment of sex offenders. Dr. Klassen’s evidence was that the characteristics of violent offenders in the domestic context are different from those of primary sex offenders. Although Mr. R.S. has committed a serious sexual assault, Dr. Klassen did not characterize him as a primary sex offender.
Opinion of Dr. Klassen
[45] Dr. Klassen’s opinion was that Mr. R.S. presents a very high risk of future domestic violence recidivism. He was not able to offer an opinion on the likely level of violence, but noted that the predicate offences involved a high level of violence and the use of a weapon. He opined that future domestic violence recidivism was probable “absent significant intervention.”
[46] Dr. Klassen believed that Mr. R.S. presented a substantial risk of sex offender recidivism but could not conclude there was a likelihood of a new sexual offence.
[47] Dr. Klassen did not believe that Mr. R.S. presented a risk of violent recidivism outside the domestic context.
[48] Although he was unable to, in the absence of more information about Mr. R.S.’s childhood and adolescence, make a diagnosis of anti-social personality disorder, Dr. Klassen testified that there was high probability that Mr. R.S. has a personality disorder of some kind.
[49] Dr. Klassen agreed that Mr. R.S.’s repeated attendance at the PAR programme showed some amenability to treatment. He agreed that more intensive treatment would likely have better results. He agreed that the programming offered by CSC was much more intense than programmes like the PAR programme. He agreed that there was no reason to assume that Mr. R.S. would refuse treatment.
[50] Dr. Klassen agreed that there is a general decrease in violent offending with age. The risk generally declines linearly with age. Past the age of 50 years there is generally a significant decline in the risk of violent recidivism.
[51] It was suggested to Dr. Klassen in cross-examination that the risk presented by Mr. R.S. could reasonably be expected to be managed in the community if Mr. R.S. were incarcerated until he was at least 40 years of age and received intensive treatment followed by a 10-year LTSO (until he was at least 50 years old). Dr. Klassen responded that he felt that it was likely right that the risk could be managed in those circumstances, but that this was a feeling rather than an opinion because he had no evidence to support that conclusion. Dr. Klassen testified that in order to offer an opinion, it would not be enough to know that Mr. R.S. was willing to take treatment. He would want to know how entrenched Mr. R.S.’s attitudes were, how deviant his lifestyle was and how willing he was to change his lifestyle. That information was not available.
Ms. Meaghan Jones
[52] Counsel for Mr. R.S. called Meaghan Jones as a witness. Ms. Jones is the parole office supervisor for the downtown Toronto parole office. Before becoming a parole office supervisor Ms. Jones worked for five years as a parole officer.
[53] Ms. Jones testified that if an offender is found to be a dangerous offender and given a determinate sentence, CSC would develop a profile for the offender and a correctional plan. There would be psychological testing done and a psychiatric assessment. Programming is recommended as part of the correctional plan.
[54] Ms. Jones described the availability in the federal penitentiary system of the Integrated Correctional Programme Model (“ICPM”). The programme identifies specific problems that need to be addressed for individual offenders and offers modules to address those problems. There are different levels of intensity in the programmes, depending on the identified risk presented by the offender. High intensity programming involves 90 sessions and medium intensity programming involves 50 sessions. The programming is not directed specifically at family violence but is ‘skills based.’ Ms. Jones testified that the modules deal with general issues like problem solving, insight/victim impact or cognitive distortions, but that there would still be discussion to relate these broader topics to the particular issues of the individual offender.
[55] An offender could refuse to participate in the programmes. The material compiled through assessment and the degree of participation of the offender in programming would be submitted to the parole board prior to the release of the offender so that the parole board could fashion appropriate conditions for the LTSO.
[56] If the offender has refused treatment while incarcerated, attendance at programming can be made a condition of his release on an LTSO. The programming available in the community, however, is less intense than the programming available in the penitentiary. In the community, the programmes typically involve 25 sessions and then 12 hours of maintenance sessions.
[57] A person subject to an LTSO in Ontario would likely be released to one of two community correctional centres (“CCCs”) which are run by CSC. Some residences are run by agencies other than CSC. These are called Community Residential Facilities (“CRFs”). CRF’s do not generally accept offenders who are subject to LTSO’s.
[58] An offender released to a CCC would be subject to conditions imposed by the Parole Board. Conditions can include treatment, reporting relationships, abstention from alcohol and drugs, non-contact with victims and requirements to stay within a geographic area. Once placed in the CCC, the offender would be subject not only to the conditions imposed by the Parole Board, but would also be subject to the rules of the CCC. The CCC is staffed 24 hours a day. Offenders are subject to curfews, random searches and random checks on their whereabouts when outside the residence.
[59] Failure to abide by conditions imposed by the Parole Board would constitute a breach of the LTSO and the residence could issue a warrant of suspension and apprehension. The offender can be held for up to 90 days pursuant to the warrant and suspension. CSC could also notify the police who would decide whether to charge the offender with the breach.
Analysis
1. Has the Crown proven beyond a reasonable doubt that Mr. R.S. meets the criteria in ss.753(1)(a)(i), 753(1)(a)(ii) or 753(1)(b) to be designated a Dangerous Offender?
General Principles
[60] The onus is on the Crown to prove beyond a reasonable doubt that Mr. R.S. meets one or more of the definitions of a dangerous offender.[^4]
Subsection 753(1)(a)(i)
[61] To prove that Mr. R.S. is a dangerous offender pursuant to subsection 753(1)(a)(i), the Crown must prove that he constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence that establishes a pattern of repetitive behavior, of which the offences for which he has been convicted forms a part, showing a failure to restrain his behaviour and a likelihood of causing death or injury or inflicting severe psychological damage on other persons through failure to restrain his behaviour in the future.
“Pattern of Behaviour”
[62] To establish a pattern of repetitive behaviour under subsection 753(1)(a)(i) the Crown must prove that there are significant similarities among the acts of violence committed by the offender. The inquiry must examine the nature and context of the acts committed. [^5]
[63] The pattern of repetitive behaviour that emerges from the criminal history of Mr. R.S. and the predicate offences is obvious. Mr. R.S. has repeatedly assaulted intimate partners. Mr. R.S. has been jealous, controlling and violent in the context of intimate relationships. While some of the assaults have arisen in the context of arguments, Mr. R.S. repeatedly engaged in stalking behaviour by lying in wait for his partners and then assaulting them.
[64] The assaultive conduct of Mr. R.S. in intimate relationships as disclosed by his criminal history and the predicate offences is similar in nature and context. It spans seven years and three different domestic relationships.
“Failure to restrain his behaviour”
[65] The pattern of repetitive behaviour under s. 753(1)(a)(i) must show a failure on the part of Mr. R.S. to restrain his behaviour. The circumstances of the offences against N.J. in the predicate offences and the circumstances of his offences against other partners clearly show a failure on the part of Mr. R.S. to restrain his behaviour towards his intimate partners.
[66] Mr. R.S. failed to restrain his behaviour even while on bail with conditions prohibiting contact with his partners. He failed to restrain his behaviour even after being incarcerated following breaches of his bail.
[67] I am satisfied beyond a reasonable doubt that the evidence establishes a pattern of repetitive behaviour on the part of Mr. R.S. in the offences against N.J. and the offences against his other two intimate partners that shows a failure to restrain his behaviour.
“Likelihood of death or injury to other persons or inflicting severe psychological damage on other persons through a failure to restrain his behaviour”
[68] The Crown is required to prove beyond a reasonable doubt that it is likely that Mr. R.S. would cause death or serious physical or psychological damage to a person through a failure in the future to restrain his behaviour. The Crown must prove beyond a reasonable doubt that it is likely that Mr. R.S. will reoffend in this way.
[69] Dr. Klassen was not able to complete some actuarial tests that would have been helpful in determining the likelihood of Mr. R.S. re-offending violently. Mr. R.S. did not participate in the assessment. There were no school records available. No family members provided background information.
[70] Counsel for Mr. R.S. has argued that in the absence of actuarial evidence I should not be satisfied beyond a reasonable doubt that violent re-offence is likely in this case.
[71] While actuarial tests are useful they are not required in order to determine this issue. One relevant test was completed, the ODARA. The risk predicted by this test was significant.
[72] Additionally, counsel for Mr. R.S. relies on the evidence that age reduces the likelihood of violent re-offence. Mr. R.S. is 38 years-old. At the end of imprisonment he will be at least in his 40’s; With an LTSO he would be supervised into his 50’s.
[73] I find that in this case the evidence establishes beyond a reasonable doubt a very substantial probability that Mr. R.S. will reoffend violently against a future domestic partner. Mr. R.S. inflicted physical injury and severe psychological damage on N.J. His pattern of controlling and assaultive behaviour in the context of his relationships makes it likely that he will inflict death, injury or severe psychological damage on intimate partners. Mr. R.S.’s pattern of conduct is one of persistent and escalating domestic violence. Mr. R.S. has acted violently and faced criminal charges in the context of three out of his four known intimate relationships in the 12 years that he has been in Canada. He caused serious physical injury to N.J. and severe psychological damage as well.
[74] While I accept the general proposition that risk of violent recidivism declines with age for most offenders, a general pattern does not necessarily predict the behaviour of an individual offender. The escalation of violence over time demonstrated by the predicate offences in this case does not conform to the general pattern of linearly declining violence with age attested to by Dr. Klassen.
[75] I find, based on this pattern of consistent and escalating violence, that the Crown has proven beyond a reasonable doubt that Mr. R.S. is likely to cause death or serious injury in the future from a failure to restrain his behaviour.
[76] Having concluded that Mr. R.S. meets the definition in ss.753(1)(a)(i), it is not strictly necessary to address the definitions in ss. 753(1)(a)(ii) and 753(1)(b), however I will address those subsections very briefly.
Subsection 753(1)(a)(ii)
[77] To prove that Mr. R.S. is a dangerous offender pursuant to subsection 753(1)(a)(ii), the Crown must prove that he constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence that establishes a pattern of persistent aggressive behavior, of which the offence for which he has been convicted forms a part, showing a substantial degree of indifference on his part respecting the reasonably foreseeable consequences to other persons of his behaviour.
[78] For the same reasons expressed above, with respect to a repetitive pattern showing a failure to restrain behaviour, I am satisfied beyond a reasonable doubt that the Crown has proven a pattern of persistent aggressive behaviour, of which the offences before me form a part. However, I cannot conclude that the aggressive behaviour shows a substantial degree of indifference respecting the foreseeable consequences of his behaviour. I am unable to say that Mr. R.S.’s behaviour shows indifference to the consequences to other persons.
[79] The Crown has not proven beyond a reasonable doubt that Mr. R.S. meets the definition of a dangerous offender under this subsection.
Section 753(1)(b) – Failure to Control his Sexual Impulses
[80] To establish that Mr. R.S. is a dangerous offender pursuant to subsection 753(1)(b), the Crown must prove that he, by his conduct in any sexual matter, including that involved in the commission of the offence for which he has been convicted, has shown a failure to control his sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.
[81] Mr. R.S. was convicted of sexual assault with a weapon. However, Dr. Klassen could not conclude that there is a likelihood that Mr. R.S. would commit further sexual offences. Nor could Dr. Klassen conclude that the sexual assault was driven by a failure on the part of Mr. R.S. to control his sexual impulses. The circumstances of the sexual assault support the inference that the offences were driven by Mr. R.S.’s controlling attitude towards N.J.
[82] I find that the Crown has not proven beyond a reasonable doubt that Mr. R.S. meets the definition of a dangerous offender under s. 753(1)(b).
2. Is there a reasonable expectation that a sentence other than an indeterminate sentence will adequately protect the public against the commission, by Mr. R.S., of murder or a serious personal injury offence?
[83] Subsections 753(4) and (4.1) of the Criminal Code create a “highly structured discretion” to impose a determinate sentence or a determinate sentence with a LTSO, rather than an indeterminate sentence, even though the offender is designated a dangerous offender. A determinate sentence or a determinate sentence followed by a LTSO may only be imposed if there is, on the evidence, a “reasonable expectation” that such a sentence will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.[^6]
[84] In R. v. Tremblay,[^7] Karakatsanis J. stated that “the determination of whether an offender’s risk can be reduced to an ‘acceptable’ level requires consideration of all factors, including whether the offender can be treated, that can bring about sufficient risk reduction to ensure protection of the public. This does not require a showing that the offender will be ‘cured’ through treatment or that his or her rehabilitation may be assured.”
[85] Evidence that the offender is amenable to treatment must be more than mere speculative hope and must indicate that the offender can be treated within a definite time frame.[^8]
[86] In D.B.,[^9] Hill J. set out the following non-exhaustive list of factors to consider in determining whether there exists a reasonable expectation that a lesser measure than an indeterminate sentence will adequately protect the public:
(1) The degree to which the offender has been cooperative with the Part XXIV process;
(2) Whether the offender has previously refused treatment or failed to take advantage of treatment opportunities;
(3) Whether the offender has been expelled from prior treatment programs;
(4) Whether the offender has previously refused to take prescribed medication or has unilaterally discontinued pharmacological treatment;
(5) Whether the offender has taken treatment in the past and if so, whether it ultimately failed to reduce or control the offender's risk to the public;
(6) Is the offender motivated and committed to treatment?
(7) Are there realistic prospects for treating the offender's mental disorder(s) having regard to relevant factors such as propensity and intractability?
(8) Respecting the predicate offences, is there a lack of insight, failure to accept responsibility, denial and minimization, a lack of empathy for the victim(s), absence of remorse?
(9) The circumstances of the offender's institutional behaviour, including in advance of the dangerous offender hearing;
(10) What improvements or gains in risk reduction can be expected during a period of custody preceding community release?
(11) Has past engagement with community supervision been compliant?
(12) Apart from treatment considerations, are there sufficiently available and resourced external controls in the community to adequately protect the public? and
(13) As a factor independent of treatment, is there compelling, not speculative, expert evidence that the offender's proclivities will significantly decline in the future while falling within the period of a determinate sentence and the term of a LTSO?[^10]
I will address the relevant factors below.
The degree to which the offender has been cooperative with the Part XXIV process
[87] Mr. R.S. did not cooperate with the Part XXIV process. He was, of course, under no obligation to participate in the process.
Whether the offender has previously refused treatment or failed to take advantage of treatment opportunities
[88] Mr. R.S. has not, in the past, refused to participate in any treatment opportunities.
Whether the offender has been expelled from prior treatment programs
[89] Mr. R.S. has not been expelled from any of the programmes that he has attended. He failed to complete the PAR programme on one occasion because he was charged with further offences.
Whether the offender has taken treatment in the past and if so, whether it ultimately failed to reduce or control the offender's risk to the public
[90] Mr. R.S. attended the PAR programme three times. It appears to have had no impact on reducing or controlling the risk he presents.
Is the offender motivated and committed to treatment?
[91] Mr. R.S.’s past participation in the PAR programme demonstrates some motivation and commitment to treatment. There is no other evidence of his motivation and commitment to treatment.
Are there realistic prospects for treating the offender's mental disorder(s) having regard to relevant factors such as propensity and intractability?
[92] There is no evidence before me with respect to Mr. R.S.’s prospects for successful treatment. His past conduct demonstrates a propensity for domestic violence and a high level of intractability.
Respecting the predicate offences, is there a lack of insight, failure to accept responsibility, denial and minimization, a lack of empathy for the victim, absence of remorse?
[93] Mr. R.S. admitted some assaultive behaviour when he testified at his trial. However he minimized and rationalized his conduct. He blamed the victim for his conduct saying that she showed disrespect.
The circumstances of the offender's institutional behaviour, including in advance of the dangerous offender hearing
[94] Mr. R.S. has had no significant problems in the correctional system. Since his detention on the predicate offences he has not presented as a management problem.
What improvements or gains in risk reduction can be expected during a period of custody preceding community release?
[95] Appropriate treatment programmes are available to Mr. R.S. in the federal penitentiary system. The evidence of Ms. Jones was that high intensity treatment prior to release would be available to Mr. R.S.. However, I have no evidence that Mr. R.S. would engage meaningfully in the available programing. Assuming that he would do so, I have no way to quantify the expected risk reduction in the absence of information about the entrenchment of his attitudes and the factors that drive his conduct towards intimate partners.
Has past engagement with community supervision been compliant?
[96] Mr. R.S. was not compliant with recognizances in the past. He breached non-contact conditions. He threatened and intimidated the victim in order to convince her to recant her allegations against him.
Apart from treatment considerations, are there sufficiently available and resourced external controls in the community to adequately protect the public?
[97] If Mr. R.S. was released on a LTSO it is likely that he would be released to a CCC. There would be close monitoring and supervision by staff at the CCC. Breaches of conditions of the LTSO could result in suspension of the LTSO and return to custody for a period of up to 90 days. A breach could also result in a further criminal charge. Pursuant to subsection 753.01 of the Criminal Code, a conviction for a breach of the LTSO by a person who has been designated a dangerous offender results in a mandatory assessment order upon the application of the prosecutor. The prosecutor may then apply for an indeterminate sentence.
[98] However, release to a CCC necessarily entails community access. When released to a CCC Mr. R.S. would be given access to the community at least through the day and would have an opportunity to forge relationships. In my view, the supervision and control available upon release is not adequate to protect future intimate partners absent meaningful treatment, insight and a willingness on Mr. R.S.’s part to comply with supervision. I have no evidence that Mr. R.S. is capable of changing his conduct with treatment. Treatment to this point has had no effect on Mr. R.S.’s conduct. Without evidence of what has driven Mr. R.S.’s conduct and evidence that treatment could effect a change within a defined period of time, I cannot conclude that there are sufficient external controls in the community to adequately protect the public.
As a factor independent of treatment, is there compelling, not speculative, expert evidence that the offender's proclivities will significantly decline in the future while falling within the period of a determinate sentence and the term of a LTSO?
[99] The evidence before me is that generally the risk of violent recidivism declines with age. As a general observation this makes sense. It does not assist, however, in predicting the likely decline in this offender. Without evidence of Mr. R.S.’ attitudes, insight and motivation I cannot say that age will significantly reduce risk in this offender.
Conclusions on Reasonable Expectation
[100] Having considered all of the evidence on this application and in particular the factors set out above, I am not satisfied that there is a reasonable expectation that the public can be adequately protected from Mr. R.S. by a measure less than an indeterminate sentence.
[101] I reach this conclusion having carefully considered the purpose of the dangerous offender provisions. The dominant purpose of the dangerous offender provisions is to “protect the public when the past conduct of the criminal demonstrates a propensity for crimes of violence against the person, and there is a real and present danger to life or limb.”[^11] I recognize that the provisions are designed to apply to “a very small group of offenders whose personal characteristics and particular circumstances militate strenuously in favour of preventative incarceration.”[^12] I recognize that Mr. R.S. to this point has not been subject to any significant sentence of incarceration. He has not had the opportunity to participate in intensive programming of the type offered in the penitentiary. I am aware that an indeterminate sentence is a significant ‘jump’ in sentence for this offender.
[102] If Mr. R.S. participates in an assessment at the penitentiary and engages in treatment, it remains open to the parole board to ultimately fashion a supervised release. However, on the record before me, it would be speculative for me to conclude that there is a reasonable expectation that treatment and supervision would adequately protect the public given the absence of any evidence of Mr. R.S.’s amenability to treatment and the absence of any meaningful information about what factors drive his conduct.
conclusion
[103] For these reasons, I conclude that Mr. R.S. must be found to be a dangerous offender and sentenced to concurrent indeterminate terms on each of the serious personal injury offences, namely: sexual assault with a weapon s. 272(1)(a) (Count 1); forcible confinement (s. 279(2)) (Count 5); and criminal harassment (s. 264(3)(a)) (Count 10).
[104] On the remaining counts, that are not serious personal injury offences, the appropriate sentences, before credit for pre-sentence custody, would be the following:
On Count 2, breach of probation: This was a serious breach involving contact with the victim. I would impose a sentence of 3 months’ imprisonment;
On Count 3, mischief under $5,000: This Count involved the breaking of the victim’s car window to commit the sexual assault. I would impose a sentence of 1 month’s imprisonment, consecutive;
On Counts 4, 11, 14 and 17, threaten death: these offences occurred over 2012 and 2013 and involved threatening to kill the victim N.J. and/or her family. I would impose sentences of 3 months on each Count consecutive to each other and consecutive to Counts 2 and 3;
On Counts 12 and 15, intimidation of a justice participant: Mr. R.S. committed these against the victim N.J. to prevent her from testifying. The offences are serious. I would impose sentences of 6 months on each Count. However, as they involve the same threats that are the subject of Counts 11 and 13, the sentences must be consecutive to each other and consecutive to Counts 2, 3, 4 and 17, but concurrent to Counts 11 and 14;
Counts 13 and 16, attempt to obstruct justice: these offences involve the intimidation of N.J. to prevent her from testifying, the same conduct as counts 12 and 15, and must be conditionally stayed based on the principles in R. v. Kienapple 1974 14 (SCC), [1975]1 S.C.R 729.
[105] The determinate sentences set out above would each be consecutive to each other except for Counts 12 and 15 which are concurrent to 11 and 13. This amounts to a total sentence of 22 months.
[106] Mr. R.S. is entitled to credit for pre-trial custody. Therefore with credit at 1.5:1 for 37 months’ pretrial custody, Mr. R.S. is entitled to 55.5 months’ credit. He is therefore sentenced to time served and 1 day on each of the Counts set out above in paragraph 112. The determinate sentence of time served and one day is concurrent to the indeterminate terms of detention.
[107] I further order the taking of samples of bodily substances for the purpose of DNA analysis pursuant to s. 487.051(1) of the Criminal Code; an order pursuant to s. 109 of the Criminal Code prohibiting Mr. R.S. from possessing any weapon for life; an order pursuant to s. 743.21 of the Criminal Code prohibiting Mr. R.S. from contacting N.J. while in custody; and an order pursuant to s. 490.012 requiring Mr. R.S. to comply with the provisions of the Sex Offender Information Registration Act, S.C. 2004, c. 10 for life.
[108] In accordance with s. 760 of the Criminal Code I order that transcripts of the evidence on these proceedings, all material filed on this application, these reasons and a transcript of the trial evidence be forwarded to CSC.
Forestell J.
Released: December 14, 2016
CITATION: R. v. R.S., 2016 ONSC 7767
COURT FILE NO.: CR/14/50000/6180000
DATE: 20161214
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
R.S.
Reasons for SENTENCE/
DANGEROUS OFFENDER APPLICATION
Forestell J.
Released: December 14, 2016
[^1]: 753. (1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied (a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing (i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour… or (b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.
[^2]: R. v. Currie, 1997 347 (SCC), [1997] 2 S.C.R. 260 at para. 42
[^3]: 753 (4) If the court finds an offender to be a dangerous offender, it shall (a) impose a sentence of detention in a penitentiary for an indeterminate period; (b) impose a sentence for the offence for which the offender has been convicted — which must be a minimum punishment of imprisonment for a term of two years — and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or (c) impose a sentence for the offence for which the offender has been convicted. (4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.
[^4]: R. v. Currie, 1997 347 (SCC), [1997] 2 S.C.R. 260 at para. 42
[^5]: R. v. Neve, 1999 ABCA 206, [1999] A.J. No. 753 at para. 118 (C.A.) and in R. v. Naess, [2005] O.J. No. 936 at para. 63 (S.C.J.)
[^6]: R. v. Szostak, 2014 ONCA 15 at paras. 52-53
[^7]: [2010] O.J. No. 3450 at para 154
[^8]: R. v. Tremblay, supra, at para 155; R. v. McCallum (2005), 2005 8674 (ON CA), 201 C.C.C. (3d) 541 at paras. 34-42 leave to appeal to S.C.C. refused, [2006] S.C.C.A. No. 145
[^9]: R. v. D.B., 2015 ONSC 5900, [2015] O.J. No. 5138 (S.C.J.) at para. 194
[^10]: R. v. D.B., 2015 ONSC 5900, [2015] O.J. No. 5138 (S.C.J.) at para. 199
[^11]: R. v. Johnson, 2003 SCC 46, [2003] S.C.J. No. 45, at para. 29
[^12]: R. v. Lyons, [1987] S.C.R. 309 at para 44.