R. v McPhee, 2017 ONSC 1047

COURT FILE NO.: 187/12 DATE: 20170213

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – JORDAN ALEXANDER MCPHEE

L. Jago, for the Crown M. Lacy, B. Badali, M. Salama for the Defendant

HEARD: January 30 – February 13, 2017

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

DANGEROUS OFFENDER APPLICATION

MILLER j.

1On April 15, 2014 Jordan McPhee pleaded guilty to, on October 30, 2011, Sexual Assault causing Bodily Harm to R.S., Unlawfully Confining R.S. and Robbery of R.S.. He was convicted that day of each of those offences and a forensic DNA order was made.

Circumstances of the Index Offence

2There was an Agreed Statement of Facts as follows:

On October 29th, 2011, at approximately 9:30 p.m., at the invitation of Jordan McPhee (“McPhee”), the complainant, R.S. (“R.S.”), attended the private home at C[…] Crescent in the Town of Oakville. McPhee had been residing at C[…] Crescent with the female owner of the home since August 2011. The owner was not in a relationship with McPhee but had known McPhee for about one year. The owner had gone away for the weekend. Nobody else was home other than McPhee and R.S..

McPhee was R.S.’s friend and former co-worker. McPhee and R.S. socialized outside of work from time-to-time. They did not have a sexual relationship but were friendly and had kissed. They lost contact after McPhee left the job but reconnected a few years later on Facebook in 2011. McPhee and R.S. did not meet again in person until the evening of October 29, 2011.

McPhee asked R.S. to meet him in the early afternoon but R.S. did not finish work until the evening. R.S. agreed to attend McPhee’s residence after work. R.S. remained at McPhee’s residence on October 29, 2011 into the early hours of October 30th, 2011. McPhee consumed a large amount of wine throughout the evening while R.S. had a few sips only. McPhee periodically went outside alone to smoke.

McPhee and R.S. greeted each other and conversed and watched TV on the living room couch. McPhee and R.S. mutually kissed and hugged for a brief time, initiated by McPhee. McPhee touched R.S.’s breasts under her clothes, over her bra, which she permitted. R.S. told McPhee nothing else was going to happen. They talked some more and watched TV. R.S. believed that McPhee was getting tipsy from the alcohol. After a few hours, R.S. told McPhee that it was getting later and she needed to go home. McPhee asked R.S. to stay overnight and to have sex or just keep him company. R.S. told McPhee that there would be no sex and that she did not come over to spend the night. R.S. agreed to stay around a little longer.

McPhee and R.S. continued talking and watching TV. McPhee continued drinking wine. There was similar brief kissing initiated by McPhee. McPhee told R.S. that he was trying to straighten out his life and that he wanted to have a relationship with her and possible have children together. R.S. told McPhee that she did not expect to hear this when she came to visit him, and that she was a little overwhelmed, they’d just met back, got back in touch and that they would just see where things would go.

At approximately 2:00 a.m., R.S. was sitting on the couch. R.S. told McPhee that she had to go home. Suddenly, without any warning or apparent reason, McPhee punched R.S. in the head. R.S. asked McPhee why he was hitting her. McPhee answered because she was leaving him.

McPhee punched R.S. in the head, face and stomach numerous times throughout the assault that followed. R.S. thought she would die from the way he was punching her.

McPhee intermittently drank wine throughout the assault.

McPhee told R.S. to remove her top. R.S. refused and told McPhee “no”. McPhee continued to punch R.S. until she removed her tank top and bra. R.S. said stop and not to hurt her, to let her go and that she was menstruating. McPhee continued drinking wine. McPhee removed the rest of R.S.’s clothing and underwear.

At around this time, McPhee was over top of her, she was on her back, half on the couch, half on the floor. McPhee put both hands on her neck, under her chin, his fingers under her jaw towards her ears. He squeezed her neck, exerting enough force that she passed out, she is not sure for how long. Her neck was not bruised, but was sore where he had squeezed for a couple of days. Later in the incident he did the same thing again, but with less force and she is not sure if with both hands.

At one point during the events, McPhee exposed his penis and touched it to R.S.’s face and around her mouth. He tried to put his penis in her mouth. R.S. described McPhee’s penis as sort of erect. He did not ejaculate.

McPhee told R.S. to turn on her stomach. He bound her wrists behind her back using her sweater and a belt. McPhee demanded money. McPhee said that he needed money to buy some drugs. McPhee asked how much money she had in her account and she said $200, he was rummaging through her purse, punching her on and off throughout.

McPhee turned R.S. over and punched her in the stomach, asking her if she had said to hit her harder. McPhee tied a bandanna around her mouth acting like a gag. McPhee also brought out another gag, soaked in what R.S. thought was wine, and tried to stick it in her mouth all the way. R.S. told McPhee that she could not breathe. McPhee suggested that she could breathe through her nose. McPhee used his shoelaces to bind R.S.’s ankles, and her wrists more tightly.

R.S. offered to take McPhee to the bank machine but he said he did not trust her. R.S. provided her ATM PIN to McPhee. While R.S. was lying on her stomach, McPhee covered her with a blanket and place metal weights (4 plates totalling 160 pounds, 2 at 45 pounds, 2 at 35 pounds) on her body.

McPhee took $25 cash, R.S.’s MasterCard, and keys from her purse. McPhee then exited the residence and drove off in her 1999 Honda Accord motor vehicle, without R.S.’s consent.

Before McPhee left the residence, R.S. heard him on the phone arranging to meet someone at No Frills. R.S. had seen a No Frills on the way to McPhee’s residence.

Shortly after McPhee left R.S. freed herself from the couch, untied the shoelaces around her wrists and spat out the gag stuffed into her mouth. R.S. hopped to the kitchen and got scissors to cut the shoelaces around her ankles. She put on her tank top, jeans, and jacket and retrieved her purse, and left the rest of her clothing behind. R.S. fled McPhee’s residence and called 911 around 3:34 a.m.

Police located R.S. around 3:37 a.m. on October 30th, 2011, hiding behind a dumpster at a nearby primary school. R.S. was upset, dishevelled, visibly injured (left side of face very swollen and mark on left wrist) and appeared to be in shock. She had a difficult time speaking to the officer who found her and was extremely fearful. Halton EMS was contacted and took R.S. to hospital.

At the hospital a belt (used to tie her wrists) and red bandanna (still around her neck when she fled and used to tie around her mouth) were seized from R.S. and her bra was seized from the back of the police cruiser of Cst. Lawson, whom had found R.S. by the school.

Following the 911 call and further information from R.S., officers were given descriptions and detailed to search the area for both McPhee and R.S.’s vehicle. As the results were negative various officers were assigned to remain on observation posts in the area to watch for both McPhee and the vehicle. R.S.’s vehicle had been placed on CPIC as stolen as well.

Around 4:00 a.m. on October 30, 2011, police set up surveillance at C[…] Crescent. Police observed that the front door was open and that the living room lights were on without any visible movement in the residence. Around 7:15 a.m., four police officers entered C[…] Crescent and searched the residence for occupants. Nobody was home.

R.S. provided a videotaped statement to police at 9:44 a.m. on October 30, 2011.

R.S.’s vehicle was located at 10:11 a.m. at a nearby plaza with a No Frills store, 300-400 metres from the McPhee residence. The engine was still warm. Police searched the area for McPhee.

On October 30th, 2011 at 10:45 a.m. McPhee was walking close to his home. McPhee was stopped, arrested and had a strong odour of alcohol on his breath. McPhee was in possession of the key to R.S.’s vehicle. When that key was returned to R.S., she advised there should be more keys and described them. The additional keys were found in the property seized from McPhee upon arrest and returned to R.S.. McPhee was also in possession of a makeshift crack pipe, which had been used but contained no drugs at that time.

On October 31, 2011, pursuant to a telewarrant, police searched McPhee’s residence for evidence. Officers located and photographed and/or seized various items. These included:

• A group of shoelaces tied together on the floor in front of the refrigerator with scissors in the drawer beside the refrigerator and three running shoes in the living room missing their laces.
• On the living room sofa – 4 weight plates as described above on top of a blanket – these were photographed these items both in place and spread out.
• From the living room – women’s clothing belonging to R.S. was seized, two socks from different locations, pink women’s underwear with attached maxi-pad, top with attached belt.
• From the living room – a damp and crumpled black bandanna was also seized from the couch along with a wine bottle and a pillow found on the floor with apparent blood on it. A second empty wine bottle was found in the kitchen.

R.S. advised police that at 4:00 a.m. on October 30th, 2011, her MasterCard was used for $6.66 at an Esso Gas Station on Lakeshore Road, which she assumed was in Toronto. Further that a $201.75 cash advance was attempted on the same card at an unknown TD bank. She confirmed that she had cancelled the credit card.

Initial injuries to Ms. R.S. at time of police contact/emergency room visit:

• Bruises and swelling to head and face/jaw
• Scratch to left arm from binding (matching the bracelet she was wearing)
• Scratch to right ankle from binding
• Orbital bone fracture – left side (later clarified as an undisplaced fracture)
• Difficulty swallowing

Ongoing injuries to Ms. R.S. dealt with in follow up appointments:

Some difficulty swallowing and chewing, ongoing face/jaw pain, loss of jaw function, facial/mouth hematomas, clicking and tenderness for jaw joint – November 2011

Ongoing clicking in her jaw, referred to pain management specialist, MRI shows no permanent damage – June 2012

Still reporting some pain to left side of face – May 2013

Pain in her jaw that comes and goes, but the consistent pain is gone. Still consistent clicking in jaw, only remedy for this would be surgery, which she does not want to pursue. No follow ups scheduled at this time – March 2014.

3The Crown applied for and received consent of the Attorney General to proceed with a dangerous offender hearing.

Circumstances of the Offender

4At the time of the index offence Jordan McPhee had a criminal record from January 13, 1999 for Break, Enter and Commit Robbery and Sexual Assault for which he was sentenced to 18 Months imprisonment in addition to nine months of pre-trial custody and two years probation and a ten year firearms prohibition. He was paroled July 13, 1999. November 2, 2001 he was convicted of Breach Probation for which he was sentenced to 15 days imprisonment.

5Subsequent to the index offence, while in custody, Mr. McPhee was convicted of Aggravated Assault on a cellmate for which he was sentenced on August 19, 2015 to 42 months’ imprisonment less credit for 679 days of pre-sentence custody, plus two years’ probation. He was subject to a lifetime firearms prohibition. That conviction is now under appeal.

6Mr. McPhee has, in the period between completing his sentence on the 1999 convictions and his arrest on these offences, maintained employment of various types, including doing work as a law clerk on a temporary basis. He continues to have the support of family members including his parents and one brother.

The May 15, 2015 Incident at Maplehurst

7The Crown called evidence with respect to an incident which occurred May 15, 2015 at Maplehurst Correctional Centre. The evidence was that while being returned to Maplehurst that date from a court appearance and before entering the facility Mr. McPhee placed his handcuffed hands over the head and around the neck of another prisoner. The transport officers immediately intervened by separating the two. The other prisoner apparently received a scrape to his jaw. There was evidence that the other prisoner was taunting Mr. McPhee.

Risk Assessment

8Dr. Mark Pearce, a psychiatrist at CAMH, was the court-appointed assessor. Dr. Pearce was qualified to give opinion evidence in the area of forensic psychiatry and risk assessment. He prepared a report in December 2015 and an update to that report in January 2017. The reports were entered into evidence and Dr. Pearce testified on the hearing.

9In addition to the above noted information of Jordan McPhee, Dr. Pearce had for his consideration Mr. McPhee’s school records, his medical records and a his correctional records. He conducted an interview with Mr. McPhee and scored him on a number of actuarial risk assessment tools.

10It is to be noted that Mr. McPhee’s correctional records reveal that since his incarceration on these charges he has been documented and disciplined multiple times for engaging in violent interactions with other inmates.

11Dr. Pearce is of the view that Jordan McPhee suffers from a severe, treatment resistant polysubstance use disorder. The substances identified are alcohol and cocaine. Dr. Pearce was unable to say whether Mr. McPhee suffers from deviant sexual preference. He is of the view that Mr. McPhee suffers from a mixed personality disorder with problematic antisocial and borderline personality traits.

12Dr. Pearce was of the opinion that Jordan McPhee is likely to re-offend violently and/or sexually absent significant interventions and that any such actions “could quite easily cause serious physical injury and/or severe psychological harm to his victims”.

13Dr. Pearce was of the opinion that Jordan McPhee meets the criteria for dangerousness as set out in the Criminal Code at s. 753 and would be suitable for a Long Term Supervision Order provided Mr. McPhee received a federal penitentiary sentence of at least 2-3 years in order that he might access and benefit from the treatment facilities in such a facility. Dr. Pearce recommended a LTSO for the maximum ten years.

14Dr. Pearce made specific recommendations as follows:

1. Mr. McPhee should access and complete a wide variety of programs during a period of incarceration, including high intensity substance abuse treatment programing, sexual offender treatment programming, violence prevention programs, anger management therapy and programs to target antisocial values and attitudes. Longitudinally-based “booster” programming in most domains should continue once Mr. McPhee returns to the community, to bolster the effects of institutional programs. Disulfiram (also known as Antabuse, an anti-alcohol medication that, if taken regularly, prevents the body from metabolizing alcohol as it normally does. Should one consume any alcohol while compliant with this medication, a distressing and painful physiological reaction would result) should be prescribed as soon as possible and even in the custodial setting, to help this gentleman embark upon his rehabilitation plan. Compliance with this medication should be monitored to help improve the prognosis. Mr. McPhee should also provide at least weekly urine samples for toxicological analysis for the duration of his LTSO.
2. Parole officers should make regular, unannounced visits should Mr. McPhee reside outside of a CSC facility. I would envision initial placement at a CCC for at least 1 to 2 years, to help manage his risk.
3. Mr. McPhee should be prohibited from having contact with any criminally-oriented peers outside of the correctional facilities. He should not attend at any venue where the primary source of revenue is through the sale of alcoholic beverages.
4. Mr. McPhee’s intimate relationships should be monitored and any potential partner should be contacted and should be fully informed of his history. Partners should be advised to contact police immediately if Mr. McPhee has used substances or if there is any reason to fear that he is about to act violently.
5. Mr. McPhee should not be in possession of a weapon.
6. Mr. McPhee should ultimately seek out employment and he should be assisted in this regard; this will help bolster his sense of self and reduce the likelihood of re-offence. Employment would also assist in structuring his time.
7. Mr. McPhee should participate in dialectical behaviour therapy (DBT), to help target borderline personality traits. He should continue with antidepressant pharmacotherapy as this has helped his mood and may help target certain symptoms of borderline personality disorder, such as impulsivity. He should remain involved with a psychiatrist to allow for longitudinal monitoring of his mood; if he becomes disenchanted or depressed, he may self-sabotage and be at increased risk for violence.

Recommendations of Counsel

15Having presented multiple days of evidence counsel have now made a joint submission as to the disposition of the hearing. Counsel jointly submit that that the evidence before the Court does support a finding of dangerousness on the basis of a pattern of repetitive behaviour by the offender, of which the offence for which he has been convicted forms a part, showing a failure to restrain his 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 behaviour.

16Counsel jointly submit that there is a possibility of control of Mr. McPhee’s behaviour in the community such that a determinate sentence followed by a LTSO is appropriate.

17Counsel jointly submit that the determinate sentence should be one of six years imprisonment less credit for pre-sentence custody (which was not taken into consideration on the sentence for the Aggravated Assault) of 824 days, leaving a sentence to be served of 1,366 days.

18Counsel jointly submit that the determinate sentence should be followed by a LTSO for ten years. The conditions of the LTSO are to be set by the parole board at the appropriate time, but counsel are in accord with the Court making recommendations as to the conditions in line with those made by Dr. Pearce.

The Law

19Section 753 (1) provides that if the Court is satisfied:

(a) that the offence for which the offender has been convicted is a serious personal injury offence [as is the offence here] 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,

There can be a finding that the offender is a dangerous offender.

20Section 753(4) provides that:

If the court finds an offender to be a dangerous offender, it shall, [amongst other options]

(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;

Analysis

21In consideration of all of the evidence and the submissions of counsel for the Crown and for the defence, I am of the view that the joint submission is appropriate.

22I am satisfied that the offences committed by Jordan McPhee for which he stands to be sentenced before me, and in particular the offence of Sexual Assault Causing Bodily Harm is a serious personal injury offence and that Jordan McPhee constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing, including this offence, a pattern of repetitive behaviour showing a failure to restrain his 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 behaviour.

23I note that this finding is not dependent on the inclusion of the 2015 conviction for Aggravated Assault which is currently under appeal.

24I am satisfied that the principles of sentencing, with an emphasis on the protection of the public, are appropriately addressed by a determinate sentence followed by a ten year LTSO. In coming to this conclusion I take into account the credit Mr. McPhee should receive for his pleas of guilty to these charges, his cooperation with the assessment process, his expressed desire to address his substance abuse problem and the evidence of Dr. Pearce that with proper treatment there is a significant prospect that at the end of the LTSO Mr. McPhee will be able to control his behaviour in the community.

25Jordan McPhee will be sentenced on Count # 1 the Charge of Sexual Assault Causing Bodily Harm to a term of imprisonment of six years, less credit for pre-sentence custody of 824 days, the remaining sentence will be one of 1,366 days in prison. A custodial term of the same length to be served concurrently, is imposed on Counts # 2 and # 3. Count # 4 is withdrawn by the Crown.

26While in custody Jordan McPhee is prohibited from communicating directly or indirectly with R.S. pursuant to s. 743.21 of the Criminal Code.

27The term of imprisonment is to be followed by a LTSO of ten years. I make the following recommendations to be considered by the parole board as conditions of the LTSO:

Antabuse should be prescribed as soon as possible Compliance with this medication should be monitored. Mr. McPhee should provide at least weekly urine samples for toxicological analysis for the duration of his LTSO.

Mr. McPhee should be prohibited from having contact with any criminally-oriented peers outside of the correctional facilities. He should not attend at any venue where the primary source of revenue is through the sale of alcoholic beverages.

Mr. McPhee’s intimate relationships should be monitored and any potential partner should be contacted and should be fully informed of his history. Partners should be advised to contact police immediately if Mr. McPhee has used substances or if there is any reason to fear that he is about to act violently.

Mr. McPhee should not be in possession of a weapon.

Mr. McPhee should ultimately seek out employment and he should be assisted in this regard

Mr. McPhee should participate in dialectical behaviour therapy (DBT), to help target borderline personality traits. He should continue with antidepressant pharmacotherapy as this has helped his mood and may help target certain symptoms of borderline personality disorder, such as impulsivity. He should remain involved with a psychiatrist to allow for longitudinal monitoring of his mood.

Mr. McPhee shall not communicate in any way with R.S..

Ancillary Orders

28A DNA order was made April 15, 2014.

29Mr. McPhee is already subject to a lifetime firearms prohibition but a firearms prohibition order is mandatory pursuant to s.109(1)(a) in these circumstances. As Jordan McPhee has already been convicted of an offence for which such an order was mandatory and was imposed, s. 109(3) applies and Jordan McPhee shall be prohibited from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance for life.

30There will be an order pursuant to s.490.022 requiring Jordan McPhee to comply with the Sex Offender Information Registration Act for life.

31The Victim Surcharge is waived.