R. v. Cook, 2017 ONSC 1434

CITATION: R. v. Cook, 2017 ONSC 1434

COURT FILE NO.: CR-13-10000743-0000

DATE: 20170322

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Applicant

– and –

WILLIAM ARTHUR COOK

Respondent

Cidalia Faria, for the Crown

Janice R. Johnson and James A. Carlisle, for the Respondent

HEARD: March 3, April 29, July 24, October 27 and December 10, 2014, February 11, March 3, April 13, May 28 and September 17, 2015, May 9, October 3-7, 11-14, 17, 19, 20, November 15, December 22, 2016 and March 22, 2017

RULING ON DANGEROUS OFFENDER APPLICATION

B. P. O’MARRA, J.

OVERVIEW

[1] On November 20, 2013 the respondent was found guilty by a jury of counts 2, 3 and 4 of an indictment as follows:

2. WILLIAM ARTHUR COOK stands further charged that he, during the period from and including the 6th day of March in the year 2011, to and including the 9th day of March in the year 2011, at the City of Toronto, in the Toronto Region, did without lawful authority, and knowing that K.H. or being reckless as to whether the said K.H. was harassed, engaged in conduct that caused her reasonably, in all the circumstances, to fear for her safety, to wit: communicated repeatedly directly or indirectly with K.H., contrary to section 264 of the Criminal Code, as amended.

3. WILLIAM ARTHUR COOK stands further charged that he, on or about the 7th day of March in the year 2011, at the City of Toronto, in the Toronto Region, did without lawful authority, and knowing that K.H. or being reckless as to whether the said K.H. was harassed, engaged in conduct that caused her reasonably, in all the circumstances, to fear for her safety, to wit: beset or watch the dwelling house of K.H., contrary to section 264 of the Criminal Code, as amended.

4. WILLIAM ARTHUR COOK stands charged that he, on or about the 6th day of March in the year 2011, at the City of Toronto, in the Toronto Region, did commit mischief by wilfully obstructing, interrupting or interfering with K.H’s lawful use, enjoyment or operation of property without legal justification or excuse and without colour of right, contrary to section 430 (4) of the Criminal Code, as amended.

[2] On March 3, 2014 the respondent was found guilty by me of a single count of Breach of a Long-Term Supervision Order as follows:

1. WILLIAM ARTHUR COOK stands charged that he, during the period from and including the 1^st day of January in the year 2011, to and including the 9th day of March in the year 2011, at the City of Toronto, in the Toronto Region, while bound by a ten year Long Term Supervision Order received on the 22nd day of November in the year 2006, at the Ontario Court of Justice, without reasonable excuse, refuse to comply with the condition imposed by the National Parole Board, to wit: obey the law and keep the peace, contrary to section 753.3(1) of the Criminal Code.

[3] This single count had been severed from the multi-count indictment that proceeded with a jury. Counsel agreed that on this separate count the evidence and verdicts from the jury trial would apply. The respondent did not testify.

[4] On March 27, 2014 I released Reasons for Judgment on the single count that are reported at 2014 ONSC 1778.

[5] On application by the Crown on March 3, 2014 I made an order pursuant to s. 752.1 of the Criminal Code of Canada that the respondent be remanded for an assessment by a forensic expert on the basis that he might be found to be a Dangerous Offender or a Long-Term Offender.

[6] The Crown seeks the following orders:

(1) That the respondent be declared a Dangerous Offender with a determinate sentence of seven to eight years less credit for pretrial custody, and a ten-year Long-Term Supervision Order pursuant to s. 753.1 of the Criminal Code.

(2) In the alternative, that the respondent be declared a Long-Term Offender with a seven to eight-year sentence and a ten-year Long-Term Supervision Order pursuant to s. 753.01(6) and/or s. 753.1(1) of the Criminal Code.

(3) A DNA order pursuant to s. 487.051 of the Criminal Code of Canada and a lifetime weapons prohibition pursuant to s. 109 of the Criminal Code.

[7] The respondent submits the following:

(1) The application for a Dangerous Offender or Long-Term Offender designation should be dismissed.

(2) The appropriate global sentence should be 37 months less pretrial custody that would amount to time served. A three-year probation period should then be imposed.

(3) The request for a DNA order should be dismissed.

(4) If the respondent is designated as a Dangerous Offender, the determinate global sentence should then be 37 months less credit for pretrial custody. The respondent would then join the Crown in asking for a further Long-Term Supervision Order for ten years after terminating the existing Long-Term Supervision Order.

[8] Before I proceed further with these reasons, I want to comment on the extended time period this matter has taken since the jury verdicts on November 20, 2013.

[9] On July 24, 2014 the Crown filed the report of forensic psychiatrist Dr. Lisa Ramshaw who was the designated assessor. On October 27, 2014 the Crown filed the consent of the Attorney General pursuant to s. 754(1)(a) of the Criminal Code. On consent the hearing was scheduled for two weeks commencing February 23, 2015.

[10] On December 10, 2014 counsel for the respondent requested that the scheduled hearing dates be vacated as she required further time to resolve retainer issues with legal aid. On consent the matter was adjourned to February 11, 2015 to be spoken to. On that date counsel confirmed that she now had approval from legal aid to act on the hearing. There were further appearances on March 3, April 13 and May 28, 2015 at which counsel requested adjournments before dates for the hearing were set. On September 17, 2015 the hearing was set on consent for two weeks commencing May 9, 2016.

[11] On May 9, 2016 the respondent applied to adjourn the hearing. The defence forensic psychiatrist, Dr. Julian Gojer, required more time to complete his assessment and report. Dr. Gojer testified on the application. I was satisfied that, notwithstanding the long passage of time in this process, an adjournment was necessary and appropriate.

[12] On consent the hearing commenced on October 3, 2016. The evidence was concluded on October 20, 2016. Written and oral submissions were completed on December 22, 2016. Judgment was reserved to March 22, 2017 for a decision.

[13] I have reviewed the chronology of events in some detail to explain the long passage of time to today’s date. The early stages of this type of application by the Crown involves unavoidable adjournments for the required assessments and consents to be prepared and filed. The vast majority of the adjournments in this case, including requests to adjourn scheduled hearing dates, were at the request of the defence. The stakes for Mr. Cook on such an application are very high. His counsel were entitled to confirm the retainer with legal aid and to make sure that Dr. Gojer had the information and the time required to provide an assessment before the hearing commenced. The various adjournment requests by the defence were appropriate. Mr. Cook has been well-represented throughout by Ms. Johnson and latterly also by Mr. Carlisle.

INDEX OFFENCES

[14] The victim of the current charges is a woman who the respondent initially befriended and then had a brief intimate relationship with. His refusal to accept the termination of the relationship and his criminally-harassing conduct fit a pattern in his personal history as reflected in his prior criminal record.

[15] K.H. was 47 years old when she testified at this trial in November 2013. She had worked for twenty-two years in the publishing industry in the United States and returned to Toronto in 2008 after being laid off. The digital age had depressed employment opportunities in her chosen field. She obtained employment at I[…] for which she was very grateful. She worked her way up at I[…] to the point where she became an assistant manager at the flagship store in the E[…] Centre in Toronto. In December 2010, she met the respondent who had been hired as a seasonal employee. He seemed very nice and they were attracted to each other. She was interested in a relationship. At the time, she was undergoing stress in her personal life related to the very serious illness of her mother from cancer. She had also ended a prior long-term personal relationship.

[16] The respondent told her that he was a divorced father of two children who was being denied access to them. He said that he had been a bartender all of his life and he hoped to go back to college for a different career. He hoped to get back with his children. K.H. and the respondent became intimate by Christmas. The respondent finally admitted that in fact he had not been previously married and did not have children. He told her that he was on parole for allegations of harassing his mother and his sister. He said that he was going to contest those charges and made it appear that they were not very serious. She was shocked and frightened to hear the true state of affairs. She testified that he was very good at smoothing things over and made it seem that it was not such a big deal. He told her that it was very important that she contact his parole officer for their relationship to continue. The terms of his parole included a curfew as well as the need to report to the parole officer any relationships with women that he was involved in. Prior to revealing that he was on parole, the respondent had visited K.H. at her apartment but they had never gone to where he lived. She now knew that he in fact was living at a halfway house and was subject to various terms of parole.

[17] K.H. was very uncomfortable and hesitant with the notion that she would be speaking to a stranger (the parole officer) about personal matters including intimate matters. The respondent left her many text and voicemail messages about contacting the parole officer and she finally agreed to do so. The respondent would follow up with her at work about what was discussed with the parole officer. The respondent was very distraught and agitated. He told her that he was concerned that the parole officer thought that something wrong was going on. K.H. was embarrassed and concerned that the respondent would be discussing personal matters with her at work. Other people at work would hear them talking and she was concerned that her job might be in jeopardy for having an office romance. At some stage the respondent told K.H. that he had called his mother who was going to make sure that K.H. would be fired if she did not make things appear to be positive with his parole officer. The respondent said that his mother would be writing a letter to H.R., the CEO of I[…]. She felt that the whole situation was stressful and a huge threat.

[18] K.H. testified that she did not think there would be a long-term relationship with the respondent but she want to help him. It appeared that he did not have any friends. She would try to calm him down and did agree to see the parole officer. By this stage the respondent was very tense in his dealings with K.H. She found him to be very insulting. Her hope was to get through this situation and still be friends but not on an intimate basis.

[19] K.H. met the parole officer who disclosed previously unknown facts to her. She felt misled about the seriousness of the respondent’s behaviour and that it was threatening. She found out that the respondent had been homeless and had escaped from a halfway facility in Toronto. She did not tell the parole officer about her troubles with the respondent because of the looming threat she felt to her employment if she did not do as she was told by the respondent. She told the parole officer that she was agreeable to be involved in a relationship with the respondent even though that was not true. For a period of time the situation and the relationship was uneventful. They would meet at her apartment and watch TV together. She would continue to talk to the parole officer every two weeks or so. The respondent would obsessively want her to tell positive things to the parole officer. He would follow up and want to know exactly what was discussed.

[20] By February 2011, K.H. felt that the situation was starting to seriously unravel. It was more and more difficult to calm the respondent down and she was wondering how she could get out of the relationship. One evening he was at her apartment drinking alcohol, even though she understood that it was a term of his parole that he not do so. She received a text early the next morning. He said he had injured his hand after some kind of an altercation at the halfway house. She believed that if she did not have a relationship with him and continue to keep him on an even keel she would lose her job. On another occasion in February she was doing a dog-walking exercise for the SPCA. She had not told the respondent about this or where she was going. She was shocked when he simply turned up. It appeared that he followed her there. She found that “kind of creepy”. There were a lot of arguments during this period of time. He would be dismissive of her and call her stupid. In her words, he “just obsessively had to be with me every single second of the day”. He would text her if she did not respond right away to questions like “where the hell are you? Are you off with some guy?” She felt then that she had to rush home and be there at the precise time that he expected her to be there. He would on occasion show up at her home uninvited and unexpected.

[21] The respondent said he wanted to live with her but she made clear that that would never happen. He began to call her at work. One day he called her at work and said he was in her apartment building. He told her that he “had to pee”. When she came home, she found him sitting in the foyer of the building. He had urinated in her recycle bin. She told him that she could not take it anymore. He wanted to see her the next day. When she told him that she did not want to see him he told her he had to see her. He told her that her general manager was going to get a call from him tomorrow and she would be fired. She told him to leave. He filled two glasses of water and poured them over her television, Xbox and cable box. She yelled at him to leave and told him that she never wanted to see him again. She was terrified. She subsequently received a series of text messages from the respondent asking her to forgive him. She did not answer any of them. She was at home and afraid to turn on her television after he had poured water on it. She heard knocking on the door and was very scared. He sent her a message saying “I thought your TV didn’t work” and indicated that he saw light under her window in her basement apartment. She moved into her dark bedroom. She did not respond to any texts.

[22] The next day, K.H. met a co-worker near the I[…] store. She spoke to him about her situation with the respondent. She told her friend about the threat to have her fired. She was asking for his advice. As she spoke to her friend she received a text message from the respondent asking her not to say anything to her friend. The respondent then came around the corner and sat at their table. K.H.’s friend excused himself and told her he would see her in two minutes. She told the respondent to leave her alone. He refused to do so. She told him that she did not want to see him again. She stood up to return to work. He walked with her shoulder-to-shoulder. She was terrified. He wanted to know if she had said anything to her friend about their relationship. As she was walking home she received texts and calls continuously from the respondent. She did not respond. K.H. was later contacted by a co-worker who told her that the respondent was in the store talking to everybody and asking for her. At this stage K.H. decided that she would tell her manager about the whole situation. She bought a new phone hoping to prevent contact by the respondent. She contacted the parole officer’s supervisor and told him the true situation. She wanted protection from the respondent and was afraid of him. She stayed with her sister. She contacted the police and showed the text messages she had received from the respondent. In the text he referred to her as “S., my love.” In a message on March 6, 2011 after the water-pouring incident, he wrote “WAITED MY WHOLE LIFE TO FIND YOU. I CAN’T SAY HOW SORRY I AM. I LOVE YOU.” On March 7, 2011 he sent her a text saying that he had talked to her parents. She became terrified as her mother was dying from cancer at this stage. She was very concerned about how upset her parents would be to receive any kind of a message from the respondent. The respondent sent K.H. a message stating “please, I am a good person inside. So much crap, it’s overwhelming. No way out. One good thing in life was you. Bye.” Another message indicated that he was in her store. He continued to send her messages on March 8, 2011. He pleaded with her and told her that he was unable to sleep or eat.

[23] In cross-examination, K.H. indicated that in her view the respondent was obsessed with her. She acknowledged that she had told him that she loved him when things were good between them and when she wanted to calm him down. She agreed that in February 2011 she sent him texts indicating that she missed him and that she loved him.

[24] During all of the events related to K.H., the respondent was bound by the terms of a Long-Term Supervision Order dated November 22, 2006. He had been declared a Long-Term Offender related to a prior relationship with a woman that included criminally harassing behaviour.

[25] The respondent’s parole officer testified that in the time period that these offences occurred, the respondent was to report to him and disclose any information about relationships with women, specifically any intimate relationships. He did not provide permission for the respondent to visit any woman at her apartment prior to December 27, 2010. When the respondent testified at trial he admitted that in fact he had not only been to the apartment of K.H. but that on Christmas Day they had been intimate. Thus, he lied to the parole officer on a critical term of his LTSO.

[26] K.H. spoke to the parole officer on December 28 and met him the next day. He said that K.H. was surprised and “a little bit shell shocked” by the disclosure of the actual situation regarding the respondent. She informed him at that time that she had decided she was not going to pursue a romantic relationship with the respondent. She said that she and the respondent were simply friends which is consistent with what the respondent was telling his parole officer. In early January 2011 the respondent was in contact with his parole officer and was quite agitated. He made statements to the effect that K.H. was “nuts”. The parole officer described the respondent as angry. He tried to divert the conversation away from K.H. but the respondent would bring the conversation back to her. The parole officer certainly had the sense that in fact, contrary to what he had been told by both K.H. and the respondent, they in fact had been intimate already. On March 10, 2011 K.H. came to the parole officer’s office. She was nervous and emotional. She told him that the respondent was using a threat against her that if she said anything that would jeopardize his parole, he would cause difficulty for her. The respondent told the parole officer that he was concerned about mental health issues relating to K.H. and the fact that she was stressed out relating to her mother’s illness.

[27] The respondent testified that he had lied initially to K.H. about being divorced and the father of two children rather than tell her that he in fact was on parole and living at a halfway house. He acknowledged that they were intimate at her apartment on Christmas Day. He said that they were intimate “right to the end of the relationship”. He stated that he was in love with her and that he believed that she loved him. He testified that K.H. was hurting him by not contacting him. He said that he knew all about her life and was worried about her. He acknowledged that he would lie to get her attention. He said that K.H. had always been accessible to him. On February 4, 2011 he acknowledged that he contacted her 43 times (29 text messages and 14 calls). He sent her one text stating “My window is smashed. My hand is minorly bleeding. No money. Please call.” He acknowledged that he would say anything to get her to contact him. He acknowledged that by that stage he had never been in a relationship that intense. He felt desperate and anxious. He was worried about her mental health and the stress in her personal life. He sent her a text that he had waited for her his whole life, that he hated himself and that he was fearful of losing her. He desperately wanted to talk to her. When she did not respond he sent her a text stating that he would talk to her parents. He explained that he figured she would get “pissed off and call me back, I used it as a method for her to call me back.” He indicated that he would use any method to try and get her to contact him when he was anxious about the relationship.

DANGEROUS OFFENDER AND LONG-TERM OFFENDER LEGISLATION

[28] The following provisions of the Criminal Code of Canada, R.S.C. 1985, c. C-46 relate to this application:

Application for remand for assessment

752.1 (1) On application by the prosecutor, if the court is of the opinion that there are reasonable grounds to believe that an offender who is convicted of a serious personal injury offence or an offence referred to in paragraph 753.1(2)(a) might be found to be a dangerous offender under section 753 or a long-term offender under section 753.1, the court shall, by order in writing, before sentence is imposed, remand the offender, for a period not exceeding 60 days, to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under section 753 or 753.1.

Report

(2) The person to whom the offender is remanded shall file a report of the assessment with the court not later than 30 days after the end of the assessment period and make copies of it available to the prosecutor and counsel for the offender.

752 Serious personal injury offence means

(a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving

(i) the use or attempted use of violence against another person, or

(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person,

and for which the offender may be sentenced to imprisonment for ten years or more

Criminal harassment

264 (1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

(3) Every person who contravenes this section is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years

Application for finding that an offender is a dangerous offender

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

Sentence for dangerous offender

(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.

Sentence of indeterminate detention

(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.

If offender not found to be dangerous offender

(5) If the court does not find an offender to be a dangerous offender,

(a) the court may treat the application as an application to find the offender to be a long-term offender, section 753.1 applies to the application and the court may either find that the offender is a long-term offender or hold another hearing for that purpose; or

(b) the court may impose sentence for the offence for which the offender has been convicted.

Application for finding that an offender is a long-term offender

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 reoffend; and

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

Sentence for long-term offender

(3) 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.

If offender not found to be long-term offender

(6) If the court does not find an offender to be a long-term offender, the court shall impose sentence for the offence for which the offender has been convicted.

Long-term supervision

753.2 (1) Subject to subsection (2), an offender who is subject to long-term supervision shall be supervised in the community in accordance with the Corrections and Conditional Release Act when the offender has finished serving

(a) the sentence for the offence for which the offender has been convicted; and

(b) all other sentences for offences for which the offender is convicted and for which sentence of a term of imprisonment is imposed on the offender, either before or after the conviction for the offence referred to in paragraph (a).

SERIOUS PERSONAL INJURY OFFENCE

[29] The respondent submits that the two counts of criminal harassment contrary to s. 264 of the Criminal Code do not qualify as serious personal injury offences. This is the threshold issue on this hearing. The Crown relies on the following portion of s. 752(a)(ii) of the Criminal Code:

“Serious personal injury offence” means an indictable offence involving conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person

The Crown does not suggest that the respondent inflicted any physical pain on the victim K.H.

[30] In R. v. Tremblay, 2010 ONSC 486, at para. 46, Karakatsanis J., as she then was, stated that although a number of cases have found that an offence of criminal harassment constitutes a serious personal injury offence, it is not necessarily so in every case.

[31] In R. v. Taillefer, 2015 ONSC 2357, the accused was convicted of criminal harassment relating to a series of letters sent to the female victim from jail. The court found that the letters were not strictly speaking of a threatening nature. However, they caused the victim to be harassed given the repetitive nature of the unwanted communications (104 letters in total) and the suggestive and at times explicit sexual nature of the letters after the accused had been informed that the victim did not wish to receive any such letters from him. The letters, together with the victim’s knowledge of the violent history of the accused, caused her to reasonably fear for her safety in the event of his release. The court held that these offences constituted serious personal injury offences on a dangerous offender application.

[32] In R. v. Morgan, 2005 CanLii 7254 (ONCA), the accused pleaded guilty to criminal harassment, obstruct justice and breach of recognizance. The Crown successfully applied to have the accused declared a dangerous offender predicated on the charge of obstruct justice. With a maximum sentence of ten years, that was the only charge with that precondition for a “serious personal injury offence” (this decision was before the Criminal Code was amended to increase the maximum penalty for criminal harassment to ten years). The obstruct justice charge related to a threatening letter sent by the accused in an attempt to dissuade the victim from testifying. On appeal the court held at paras. 10-16 that serious personal injury offences are not limited to crimes against the person:

[10] Mr. Breen argues that the obstruct justice provision is directed against those who would attempt to influence the course of justice; it is not an offence against the person per se. It is merely fortuitous, he says, that at the time the letter is sent, Ms. C. happens to be a witness in an ongoing prosecution. The conduct which causes the damage is the criminal harassment. One cannot intelligently describe obstruct justice as a serious personal injury offence, it is really an offence against the justice system. To meet the purpose of the scheme, the predicate offence, it is argued, must be an offence against the person. To include other offences casts the net too widely and would in result, include others to whom the section was never meant to apply.

[11] In my view giving the language of s. 752 of the Code its ordinary meaning, it includes the offence of obstruct justice. Had Parliament intended that only offences against the person were capable of meeting the definition of “serious personal injury offence”, it would have said so as it did in respect of sexual offences in s. 752(b).

[12] Section 752(a)(ii) sets up two preconditions. First the offence must be one where the offender may be sentenced to 10 years or more. Obstruction of justice is such an offence.

[13] Second, to meet the definition the conduct must be such that inter alia it was “inflicting or likely to inflict severe psychological damage upon another person” here Ms. C. The section requires that the conduct have actually inflicted severe psychological damage on a complainant or be such that it is likely to cause severe psychological damage. It is in this sense that the offence can be said to be a serious personal injury offence. Trivial conduct or conduct de minimis would not meet the severity requirement.

[14] In his reasons the trial judge found that the September letter:

did in fact cause L.C. severe psychological damage, notwithstanding her strength of character which tended to note the effects of the letter to some extent …

and

Moreover, again, I find that the sending of the September letter was likely to cause severe psychological damage to any recipient in the situation of L.C.

[15] Mr. Breen properly concedes that these findings were open to the trial judge.

[16] In my view the trial judge properly interpreted the section as it applied to the facts before him.

[33] The respondent before me was previously convicted in 2006 of two counts of criminal harassment and one count of threatening death. The victims were his mother’s common law spouse and his sister. On appeal at 2013 ONCA 467, the court considered, inter alia, whether the offence of criminal harassment constitutes a serious personal injury offence as defined in s. 752 of the Criminal Code, at paras. 39-42 inclusive:

[39] The sentencing judge ruled that the criminal harassment charges of which the appellant was convicted are “serious personal injury offence[s]” within the meaning of s. 752 of the Code.

[40] We agree. Under s. 752, the phrase “serious personal injury offence” is defined to include an indictable offence, other than certain specified offences that do not apply here, involving “conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person”, for which the offender may be sentenced to imprisonment for ten years or more.

[41] The evidentiary record confirms that the appellant’s conduct, in the context of his criminal harassment convictions, involved conduct likely to inflict severe psychological damage upon another person, within the meaning of the statutory definition of “serious personal injury offence”. The pertinent evidence demonstrated that:

(1) the appellant abused his family for many years, necessitating repeated involvement of the police;

(2) Laura feared the appellant and, on August 24, was sufficiently frightened of him that she hid from him, with her daughter, in the basement of the family home;

(3) the appellant used obscene, menacing and aggressive language in his calls with Laura, including on the dates relevant to the indictment, going so far as to threaten her death and the assault of their mother;

(4) as a result of the appellant’s conduct, Laura was scared of him, anxious, and believed that he was capable of harming her and their mother;

(5) the aggressiveness of the appellant’s threats progressed over time; and

(6) the appellant threatened to slit Bernard’s throat.

[42] We have no hesitation in concluding that the appellant’s harassing conduct involved conduct likely to inflict severe psychological damage on Laura. Indeed, it would be astounding if it did not. There is ample evidence on this record to support the conclusion that the criminal harassment of which the appellant was convicted in respect of Laura constituted a “serious personal injury offence”. The appellant’s persistent and threatening conduct was neither trivial nor de minimis. To the contrary, it demonstrated a likelihood of the appellant inflicting severe psychological harm, if not physical violence, on Laura. This meets the statutory definition of “serious personal injury offence”.

[34] In R. v. Burton, 2013 ONSC 3021, the accused had been convicted of attempting to procure a person into prostitution contrary to s. 212(1)(d) of the Criminal Code. The Crown applied to have him declared a dangerous offender. Trotter J. (as he then was) found that the attempt to procure in that case did not amount to a serious personal injury offence. The Court indicated the following:

• The commission of a SPIO need not involve extreme violence or the infliction of serious harm, even though it often does (para. 16).

• It is improper for the courts to read into the definition of SPIO, a requirement that the use or attempted use of violence was “serious” or that the conduct “seriously endangered” or was likely to “seriously endanger” the safety of another person (para. 24).

• In assessing psychological harm, the Court must engage in a qualitative assessment of the purported harm. There must be proof of “severe psychological damage” (para. 26).

• “Severe psychological damage” is not the equivalent of any emotional distress. The standard is much higher. Citing Tremblay at para. 75-76, “severe psychological damage requires, as a minimum, a substantial interference with the victim’s physical or psychological integrity, health or well-being (para. 27).

• Expert evidence is not mandatory to establish severe psychological damage (para. 29).

[35] The respondent refers to the following in support of his position that these offences do not constitute serious personal injury offences:

• There is no evidence that K.H. sought or received any professional counselling for her distress;

• Her fear that an “office romance” could endanger her employment was irrational;

• The victim impact statement is hearsay and unreliable. The respondent claims that he asked the Crown to produce K.H. for cross-examination on the victim impact statement but was refused;

• The victim impact statement was “dramatic, too vague to be useful…does not provide the detached clinical information (needed) to evaluate any psychological harm”.

[36] Evidence that the victim sought or received professional counselling related to these events would have been relevant. However, that type of evidence is not a condition precedent to a finding that these were SPIO offences.

[37] In my view, K.H.’s concern that her job could be endangered by these events was not irrational. This was more than an “office romance” even though it started as that. The refusal of the respondent to leave K.H. alone included speaking to other employees at I[…] and creating scenes at and near the work site. The protracted and difficult journey that K.H. took to obtain her position in the publishing industry made that position very important and precious to her. The situation created by the respondent related to her employment was embarrassing and disruptive. She reasonably feared a negative impact on her job.

[38] Section 722 of the Criminal Code specifically provides that victim impact shall be received by the Court and may be presented in various ways. Section 722(3) provides great latitude in how such statements may be received. They may be hearsay but they are nonetheless admissible and shall be considered by the Court. There is no automatic or open-ended right to insist that victims attend for cross-examination anytime the Crown files such a statement: R. v. V.W., 2008 ONCA 55 at paras. 28-30.

[39] The evidence of the impact of these offences on K.H. is not limited to the victim impact statement filed in any event. K.H. testified for three days before the jury and was cross-examined thoroughly by counsel for the respondent. The significant impact of these events on her personal and work life as well as her fear of the respondent was manifest. She gave her evidence in a straightforward manner. I did not detect any attempt to exaggerate or dramatize the effect of these events on her.

[40] There are clear limits to the admissible content of victim impact evidence: R. v. Berner (2013), 2013 BCCA 188, 297 CCC (3d) 69 (BCCA); R. v. Bremner (2000), 2000 BCCA 345, 146 CCC (3d) 59 (BCCA); R. v. Penny (2010), 2010 NBCA 49, 257 CCC (3d) 372 (NBCA). However, such evidence is not limited to “detached, clinical information” as suggested by the respondent.

[41] K.H., the victim on the index offences, provided a victim impact statement dated September 5, 2014. The following is an excerpt:

If you were to ask who I was when I met Bill Cook, I would answer this: I was a person mourning the end of a 10-year relationship, I was a person who was coping with a mother who was terminally ill, I was a person who was working hard to recover a career in middle age, I was a person who was proud of having been promoted through the ranks at a large prestigious company, I was a person who trusted everyone from all walks of life.

I never feared walking down a dark street at night – never. I never feared living on my own. I never feared going to sleep at night in my basement apartment. I never felt repulsed by my own self. I never felt reservation upon meeting new people. I never felt fear that I may have put my family in danger. I never felt absolute humiliation at work as I did on the day I had to tell everyone of what was happening. On that day, I understood the full meaning of ‘losing face’. After all the time I had invested building my name with the company, I watched faces look at me differently, I saw loss of respect and a damaged career.

I always saw myself as a brave, fearless go-getter; a person who loved all people regardless of gender, race or religion. Now, I am passive. Now I feel fear to live on my own. Now, I question people and assume each has a motive – especially men. Now, I approach people differently. Instead of thinking and projecting goodwill and friendliness, I project a steely, cold veneer. I do not reach out to anyone. Bill Cook has changed who I was. I hate who I have become. This is what knowing Bill Cook has done to me.

[42] The criminal actions by the respondent interfered significantly with K.H.’s personal life and well-being. Based on her evidence at trial and on this hearing, I have considered the following:

• Her fear and distress increased when she found out that the respondent had a criminal history that led to his being on parole, living at a halfway house and reporting to a parole officer. The respondent grossly minimized his criminal past after he admitted lying about his personal situation. She was shocked and distressed when she received accurate information about the respondent from his parole officer. The term of parole that the respondent report any personal relationships reasonably set off alarm bells for K.H.

• The fear and control that the respondent imposed on K.H. was evident when she felt she had to follow his direction/orders to assure his parole officer that all was well in the relationship. He deluged her with messages before and after she was to meet the parole officer to make sure she had kept him out of trouble.

• The respondent said very hurtful things to K.H. that went far beyond mere insults. He referred to her having alcohol and mental health issues. He threatened to contact her parents, including her terminally ill mother, to force K.H. to communicate with him. He later admitted to Dr. Ramshaw and his testimony at trial that he did this to accomplish his purpose. The respondent knew how upset K.H. was about her mother’s terminal illness. His resort to this threat, not involving a physical aspect, was clearly very hurtful and damaging to K.H.

• The respondent knew that K.H. had worked long and hard to obtain a very responsible position in a field of endeavor precious to her. Her fear that the disruptive and threatening behaviour of the respondent at her place of work and in the presence of coworkers could imperil her employment was reasonable and deeply felt. This may have started as an “office romance” but escalated far out of control by the conduct of the respondent.

• After she made clear the relationship was over he continued to obsessively contact and stalk her. He would show up uninvited and unexpected at her home or elsewhere. This was deeply disturbing and distressing to her.

• K.H. was and is a fundamentally good and decent person who did not deserve the fear and anxiety visited on her by the respondent. She was very embarrassed to be forced to see the parole officer, a total stranger, and discuss her personal life. Aside from pressure by the respondent, she testified that she also felt sorry for him, that he had no friends and might have to go back to jail.

[43] Based on all of the evidence at trial and on this hearing, I am satisfied beyond a reasonable doubt that the criminal acts of harassment by the respondent caused severe psychological damage to K.H. It is clear that these events have changed her life and outlook, fundamentally, for the worse. The two convictions for criminal harassment in these circumstances constituted serious personal injury offences.

CRIMINAL RECORD

[44] Mr. Cook’s criminal record preceding the index offences is as follows:

Conviction Date Location

Offence

Sentence

1990-08-20 Toronto

Driving with more than 80 mgs of alcohol in blood s. 253(b) CC

$500 fine I-D 30 days

1995-07-17 Toronto

Fail to comply – recognizance s. 145(3) CC

(10 days PSC) 30 days jail intermittent Probation 24 months

1996-06-20 Toronto

Fail to comply - recognizance s. 145(3) CC

90 days jail intermittent Probation 3 years

1996-09-20 Toronto

(1) Criminal harassment s. 264(1) CC (2) Uttering threats s. 264.1(1)(a) CC (3) Fail to comply - recognizance s. 145(3) CC

60 days jail on each charge concurrent and concurrent to sentence serving Probation 3 years

1997-11-24 Toronto

Mischief s. 430(4) CC

Suspended sentence Probation 18 months

1998-06-10 Toronto

(1) Carry concealed weapon s. 89 CC (2) Fail to comply – probation order s. 733.1 CC

(1) (108 days PSC) 1 month jail Probation 2 years s. 109 discretionary prohibition of firearms 5 years (2) 5 months consecutive

1998-10-16 Brampton

Fail to comply – probation s. 733 CC Fail to comply – probation s. 733 CC

(106 days PSC) 1 month jail on ach charge concurrent Probation 3 years

1999-06-23 Toronto

Uttering threats s. 264.1(1)(a) CC

(5 days PSC) Probation 18 months s. 110 discretionary prohibition order for 10 years

2000-02-25 Toronto

(1) Criminal harassment s. 264(1) CC (2) Fail to comply – probation s. 733.1 CC

(1) Time served (2) 6 months jail Probation 1 year

2001-10-17 Toronto

(1) Theft under $5000 s. 322 and 334 CC (2) Mischief under $5000 s. 430(4) CC (3) Fail to comply – probation s. 733.1 CC (4) Criminal harassment s. 264(1) CC

(15 months and 15 days PSC) Suspended sentence on each charge concurrent Probation 3 years s. 109 mandatory prohibition order

2003-07-10 Toronto

(1) Criminal harassment s. 264(1) (2) Fail to comply – probation s. 733.1 CC

(63 days PSC) Suspended sentence on each charged concurrently Probation 2 years s. 110 discretionary prohibition for 5 years

2006-11-22 Toronto

(1) Criminal harassment s. 264(1) CC (2) Criminal harassment s. 264(1) CC (3) Uttering threats s. 264.1(1)(a) CC (4) Fail to comply – probation s. 733.1 CC

(26 months and 20 days PSC x 1.5 = 29 months PSC) Concurrent on all charges Suspended sentence LTSO for 10 years per s. 753.1(3) CC s. 109 mandatory prohibition order OCA: 2013-07-09 Sentence appeal allowed, identical sentence imposed

2009-05-22 Toronto

Breach of order of long term supervision s. 753.3(1) CC

(10 months on 1:1 credit = 10 months + 2 months on 2:1 credit = 4 months credit = 14 months PSC) 16 months jail OCA: 2009-11-18 (14 months PSC) 10 months jail

[45] The criminal record of the respondent relates almost exclusively to incidents arising from intimate relationships and others related to members of his family.

[46] He had been involved in a relationship with a woman identified as P.T. for four years ending in 1995. She lived in constant fear of him for a time and refused to travel alone. He was obsessed with her and unable to accept that the relationship was over. During the night of August 19, 1999 he attended her home and left various items, including nude pictures of her. He also scratched her car. He would phone her office and become extremely angry. She finally quit her job to avoid him.

[47] Sometime during the night of July 13, 2000 there was an incident at the home where P.T. lived with her parents. Their vehicles were damaged and their licence plates were removed. Words were scratched on her parents’ car and her own car. Items were removed from the front porch. The respondent was seen on surveillance video. At the time, the respondent was subject to three probation orders and had been released from jail two weeks earlier.

[48] The incidents in 2003 arose from an intimate relationship with a woman identified as J.I. They had lived together for a few months. She asked him to move out. He then called her “day and night” between May 7 and 10, 2003 demanding money that he claimed she owed him. She feared for her safety. He was on probation at the time.

[49] The exhibits filed on this hearing without objection included the victim impact information from P.T. and J.I.

[50] P.T. was contacted by Det. Donald MacCullum on October 5, 2006. She was quite reluctant to provide any information out of continuing fear of the respondent. In a telephone conversation she said that the respondent terrorized her for years and she still has nightmares about him. She declined to give a formal victim impact statement.

[51] J.I. provided a victim impact statement dated October 6, 2006. She said she can never again trust a man as a result of the conduct of the respondent towards her.

[52] A summary of the respondent’s criminal record, including the four counts dealt with on November 20, 2013 and March 3, 2014 is as follows:

(1) Eight convictions for criminal harassment;

(2) Twelve convictions for breaches of court orders, including two breaches of Long-Term Supervision Orders;

(3) Three convictions for mischief to property; and

(4) Two convictions for uttering threats.

EXPERT EVIDENCE

[53] Two very experienced, highly qualified forensic psychiatrists submitted reports and testified on this hearing. Their conclusions were for the most part in accord.

[54] Dr. Lisa Ramshaw prepared a psychiatric assessment of the respondent pursuant to s. 752.1 of the Criminal Code. She listed an extensive list of sources of information that included the following:

• Meeting with and interviewing the respondent on April 24, May 2 and May 13, 2014 for a total of approximately twelve hours;

• Transcripts of proceedings at the trial of the index offences. This included the testimony of the victim K.H., parole officer Chris Baumhauer and the respondent;

• The respondent’s criminal record, police reports and occurrence reports;

• Prior psychiatric reports and referrals including Dr. J. Gojer’s Dangerous Offender/ Long Term Offender Assessment Report dated October 16, 2006;

• Correctional Service Canada materials (ten volumes). These included medical, psychiatric and psychological reports; and

• Material provided by the respondent’s counsel including items related to education, past and prospective employment and family input.

[55] The issues addressed in Dr. Ramshaw’s report included the following excerpts:

Risk Assessment

The variable most frequently associated with risk for violent and non-violent criminal recidivism is psychopathy. This construct is measured most effectively in the Psychopathy Checklist – Revised (PCL-R), developed by Dr. Robert Hare. The PCL-R measures the extent to which individuals resemble the ideal or prototypical psychopath, an individual who has exploitative values and attitudes, arrogance and a need for dominance, and poor impulse control. For research purposes, Dr. Hare chose 30 and above as the definition of a psychopath. However, extensive research has shown that the scores are on a continuum (like height, weight and blood pressure). The average score in a community sample is 4 to 5; the average score in a male prison population is 23. Scores have important implications for recidivism and for responsivity to community supervision and treatment. A high score implies a high risk and is associated with poor response to supervision and to treatment. However, low scores do not necessarily imply low risk as there may be other risk factors driving the behaviour such as psychosis, substance abuse, sexual deviance, or violence motivated by an individual’s belief system.

Mr. Cook scored 28 out of a possible 40 points on the PCL-R. He was just above the 75th percentile in the North American male offenders. Items of particular concern included lying, conning and manipulative behaviour, lack of remorse and empathy, poor behavioural controls, lack of realistic long term goals, impulsivity, irresponsibility, failure to accept responsibility for his actions, revocation of conditional release, and criminal versatility. He was above the 89th percentile for Factor 1 (interpersonal/affective traits) and above the 50th percentile for Factor 2 scores (lifestyle/antisocial behaviour). His overall score was not significantly different from his score in 2005 (28), and in 2006 (25).

Stalking-related risk factors from the Guidelines for Stalking Assessment and Management (SAM) included:

• Persistent and escalating communication with the victim

• Direct contact with the victim

• Threats and attempts to induce fear

• Stalking in the service of intimidation and attempts to control her and prevent her from leaving

• Aggression in the context of anger

• An obsessional quality

• Fear of abandonment and narcissistic features

• Extensive history of violation of no-contact orders

• History of very similar behaviour with a former girlfriend, with friends, and family

Other Risk Factors for Re-offending:

• Persistent criminal harassment despite sanctions and others expressing fear

• Failure to comply with no association orders

• Failure to accept responsibility for his actions with an external attributional style

• Failure to learn from experience

• Anger problems with resentment, and absent insight

• Alcohol abuse history

• Poor insight and judgment

• Lack of awareness that he has any significant problems

• Lack of motivation for treatment

• Rigid thinking

• Significant psychopathic traits

Protective factors included that he is reasonably bright, he has the capacity to learn and to work (as was evident with significant structure and support; and he appeared to enjoy school and his work while waiting for his hearing in 2013 with numerous positive reports), he has some capacity to engage in pro-social behaviour, and he has family support (albeit they are highly protective, and have minimized his behaviour).

Unfortunately, there has been no significant change in his pattern of offending or behaviour, despite sanctions, and numerous attempts at treatment.

While there was no evident acute risk to others, his risk to others is over the long term, remains as described in 2002, 2005 and 2006.

Psychiatric Impressions and Recommendations

Mr. Cook incurred 23 convictions between 1990 and 2013, with criminal versatility (driving under the influence, violation of orders, threat, weapons, theft, mischief, and criminal harassment). His numerous criminal harassment charges, and violations of no contact orders began in the mid-nineties. Victims included girlfriends, former girlfriends, an acquaintance, and family members. Despite sanctions, treatment, and age, there has been no evident change in his behaviour over a 15-year time span. He has continued to minimize and deny his behaviour, he has portrayed himself as the victim, and he has failed to take responsibility for his actions. As well, his anger (when his immediate needs are not met, in the context of perceived mistreatment, and when rejected), and his inability to tolerate the anger resulting in associated impulsive criminal behaviour including obsessional stalking, aggression and threats, and violation of orders, has not changed.

Diagnosis

Mr. Cook’s history and presentation was in keeping with Narcissistic Personality Disorder and Antisocial Traits (with significant core features of psychopathy), as well as an Alcohol Disorder in remission.

There was no specific indication for an MRI or CT scan of his head (as had been requested by Mr. Cook). While he has reported mild head injuries, there was no evidence (by history, clinically, or by psychological testing in 2005 or in 2014) of any structural brain pathology. Further, his criminal behaviour is longstanding and has not changed over time. His behaviour, emotions, and cognition are, however, in keeping with a personality disorder with egocentricity, ease of anger, and rigid thinking.

Mr. Cook has had significant problems with poor coping strategies and rule breaking (including disregarding court orders) from at least early adulthood, with egocentricity, anger with associated impulsivity, as well as, criminal versatility.

Mr. Cook has numerous maladaptive personality features, involving self-focus, deficits in empathy and capacity for remorse, violation of the rights of others for personal gain, deceitfulness, evasiveness and manipulative behaviour, irresponsibility, impulsivity, and anger and emotional instability. He also has deficits in his ability to plan ahead, and he has failed to accept responsibility for his actions while blaming others and portraying himself as the victim. He has not learned from experience or consequences, and he is rigid in his thinking with an apparent inability to modify his behaviour. He has poor self- appraisal skills and low motivation to change (related to denial and minimization). He has also been described as immature, arrogant, envious, entitled, suspicious and jealous at times.

Mr. Cook’s depressive symptoms, which have been noted over time (including while in the Toronto East Detention Centre), appear to have been associated with negative life events (charges, relationship conflict). While not specific to, his depressive symptoms are consistent with narcissistic feelings of inadequacy and/or self-pity during times of stress, particularly in the context of an external attributional style, with a belief they are the victim.

Mr. Cook’s obsessive stalking behaviour, causing others to fear him, appears to flow from his narcissistic needs, inability to tolerate rejection, feelings of loss of control with associated rage. During these times he has engaged in extreme behaviour in attempts to regain control and to rid his anger.

Mr. Cook’s rigid, inflexible thinking (particularly when angry), with an obsessive perseverative quality, has been evident in his repetitive criminal behaviour despite sanctions, and his persistence in obtaining his perceived needs. This persistence was also evident during the assessment.

Individuals with narcissistic personality disorder or traits generally present with grandiosity with an exaggeration of achievements and talents, a belief they are special, a need for admiration, a sense of entitlement, lack of empathy, a sense of envy, and a sense of arrogance. They are often interpersonally exploitative. They also often evidence a fragile self-esteem. Vulnerability and self esteem issues makes these individuals prone to “injury” from real or perceived criticism or defeat. They may react with disdain, rage or counter attack. Interpersonal relations are typically impaired due to problems derived from entitlement and the relative disregard for the sensitivity of others. While there may be narcissistic features early in life, they often do not manifest until adulthood. Antisocial traits involve violation of and disregard for the rights of others. This includes criminal behaviour, deceitfulness, impulsivity, irritability and aggressiveness, disregard for safety of others, irresponsibility, and lack of remorse.

Risk of Re-Offending

Mr. Cook has a long history of persistent obsessive stalking behaviour, and a failure to obey no-contact orders. He has had significant intimate relationship problems that have resulted in numerous similar criminal charges, and he has engaged in similar behaviour with family, and others. While influence from the other party cannot be negated, Mr. Cook’s behaviour has consistently been extreme within all the relationships resulting in charges, and it has not changed over time. He has failed to take responsibility or learn from experience, and despite sanctions and anger management, he has re-offended and persisted in his behaviour.

Mr. Cook’s interpretation of interpersonal conflict, and associated anger and resultant criminal behaviour has clearly been problematic. However, it is his persistent self- focused behaviour, his lack of ability to learn from his experience, his ongoing belief that he has been the victim and that he doesn’t need to change, as well as his associated unrealistic long-term plans, that remain highly concerning.

Although Mr. Cook has stated that he has changed, his plans (including no longer engaging in relationships) are unrealistic relapse prevention strategies. Further, he has done well for short periods previously, only to revert to his previous behaviour. Unfortunately, there has been no apparent change over time with sanctions, supervision, treatment, counselling, age, and support from his mother – with regard to his style of offending or his sense of responsibility for his actions.

In keeping with risk assessment reports in 2002, 2005, and 2006, Mr. Cook remains at a high risk of criminal harassment and violation of orders, based on his history of obsessional stalking and repeat offending, his personality variables, and his significant psychopathy. His risk of violence likely remains moderate given his personality variables; however, his risk of causing psychological harm remains high. Also in keeping with his history and psychopathy, he will remain a poor supervision candidate, and his prognosis with treatment is guarded (in large part also related to his belief that he does not need to change).

While he may be motivated to obtain his freedom, his motivation to change is superficial at best. He would likely, however, do better (as he did in 2013) with greater structure (including full time work), supervision, as well as intense anger management treatment, and counselling for relationship deficits.

While age tends to have an ameliorating effect on anger and violence, it is not clear that age has the same effect on criminal harassment behaviour, particularly with his core psychopathic traits. Given his re-offending while under a Long Term Supervision Order, it is also not clear that there would be a reasonable possibility of eventual control of the risk in the community - albeit his offending (while persistent and fear-inducing) is neither violent, nor extreme.

Risk Management/Treatment Recommendations

Should consideration be made for community reintegration, the following is recommended:

1. Mr. Cook may benefit from anger management using Cognitive behaviour therapy strategies, stress management, and communication skills. It may be beneficial to begin with individual therapy (given his lack of insight and his lack of perceived need for change), followed by group therapy. He would also likely benefit from longer- term anger management treatment, particularly with regard to intimate relationships.

2. Cognitive behaviour therapy is recommended given his cognitive distortions including his difficulties accepting responsibility for his actions while blaming others.

3. He may also benefit from supportive therapy to assist him in learning to cope with stressors, and to develop more realistic long-term goals, as well as for basic social and relationship skills.

4. He should be very closely monitored and supervised in the community.

5. He should have ongoing structure to promote and maintain full time employment, which will further assist in providing structure and meaning in his life.

6. He should abstain from alcohol and street drugs, given his history of alcohol problems.

7. No contact orders with prior victims (with the exception of family members who have provided consent) should continue.

8. His self-report is unreliable, and as such should be corroborated by a supervising authority by means of contact with collateral sources and through unannounced home visits on a regular basis.

9. Any potential supervisors or counselors, and potential intimate partners should be made aware of his history, personality variables, and risk.

[56] Dr. Ramshaw’s testimony on this hearing included the following:

• The respondent has a severe personality disorder. The most prominent features are narcissistic and anti-social traits. These factors are the driving force in terms of his criminal behaviour in the community. They explain why he acts in a certain way.

• The victim, K.H., described the respondent as deceitful, manipulative, threatening, angry, belittling, jealous and unable to accept no for an answer. She was terrified of him. This description was similar to the stalking behaviour in the respondent’s prior relationships. The respondent becomes fixated on reconnecting with the victim. His conduct becomes more threatening over time. Desperation turns to anger.

• Chris Baumhouer, the respondent’s parole officer, described how the respondent kept coming back in conversation to disparage the victim as Mr. Baumhover tried to get him focused on other issues.

• In his self-report, the respondent presented to Dr. Ramshaw as manipulative and refusing to accept responsibility. He portrayed himself as the victim. There was a lack of empathy for K.H. and the other female partners in his past.

• There is a history of violating supervision orders, including the LTO issued in November of 2006.

• Dr. Ramshaw referred to the PCLR scoring done by Dr. Gojer based on his review for this case. He scored the respondent at 24. Dr. Ramshaw scored him at 28. The respondent has been scored at 24-28 in the past. That range is indicative of significant psychopathic traits. Such people tend to get into trouble with the law and are not particularly amenable to treatment.

• The respondent presents as a rejected and resentful stalker. He is not seeking a new relationship or sexual satisfaction. Such a person does not respond well to sanctions. That is certainly consistent with the respondent’s personal and criminal history.

• The respondent appears to be motivated for treatment if it is provided to him. However, it is difficult to assess whether he would participate in treatment in a meaningful way.

• The respondent requires long-term therapy, for years, in order to have an impact. She could not say how significantly this would reduce the risk of re-offending. He is at high risk to re-offend.

• The respondent’s style of re-offending does not decline with age.

[57] Dr. Julian Gojer prepared an assessment at the request of the defence. He reviewed and considered an extensive list of sources including the following:

• Education and employment records;

• Psychiatric interviews and mental state examinations by Dr. Lisa Ramshaw;

• The following psychiatric reports:

(a) By Dr. Graham D. Glancy, dated December 9, 2005;

(b) By Dr. Julian Gojer, dated October 16, 2006;

(c) By Dr. Neil Levitsky, dated November 20, 2001;

(d) By Dr. Peter Collins, dated July 27, 2002; and

(e) By Dr. Scott Woodside, dated April 23, 2003.

• Reasons for Long Term Offender Sentencing, dated November 22, 2006;

• Victim Impact Statements, including from K.H. on the index offences; and

• The report of Dr. Ramshaw, dated July 21, 2014.

[58] Dr. Gojer set out his prognosis and recommendations as follows:

Prognosis

Mr. Cook’s personality disorder with these various personality traits are difficult to treat. His narcissistic and paranoid traits make it difficult for him to trust others and to be introspective and not project blame externally. His track record indicates that he will likely continue to experience difficulties in subsequent relationships with adult females as noted in the past.

In understanding what risk he poses to his potential victims, it appears that his likely victim will be an adult female who he has a relationship with and when he feels rejected. His history does not indicate that there will be any serious aggression in the relationships and his criminal record is remarkable for the absence of any convictions for aggression of any severity.

Mr. Cook has been difficult to manage in the community. While he has attended for therapy, and his participation noted, it does not appear that any serious dent has been made in how he handles himself and he has continued to violate terms of his LTO, has had reincarcerations for concerns with his behavior and has violated the terms and more recently has breached it. At the same time, he has been productive with work, has attended for programs and assessments and had kept his parole officer informed about his association with the most recent victim. I do not see him as having received any formal therapy for trauma, complex trauma or for his borderline traits. The ideal recommended treatment for this is Dialectical Behavior Therapy.

There are no actuarial risk assessment instruments for criminal harassment offenders and in the absence of any violent history, using standard risk assessment tools like the Violence Risk Appraisal Guide is not helpful. On the Hare's Psychopathy Checklist Revised, he scored 24. While this is not indicative of psychopathy, it is a high score. However, this score does correlate with actual violence but does indicate a problem with antiauthoritarian problems, problems with engagement in counseling and a likelihood of reoffending.

Taking all the above information into consideration, I see him as having a low potential for violent behaviors and a high risk for criminally harassing behaviors in the future. Inherent in criminal harassing behaviors is the element of psychological harm or fears of harm. Mr. Cook’s behaviors that led to him being found to be an LTO were predicated on him being a psychological harm to his victims and at this time potential victims. This risk of psychological harm is expected to persist.

[59] Dr. Gojer’s testimony on the hearing included the following:

• He assessed the respondent in regard to a prior DO/LTO hearing related to another female victim of the same type of criminal behaviour in 2006. At that time the respondent displayed features that fit the definition of Long-Term Offender.

• The respondent does not take responsibility for the current offences related to K.H. He agrees he harassed her but denies it amounted to a criminal level. He admitted that he was overly attached to K.H. but at no time did she tell him she did not want to be with him.

• The respondent does not present as a “vengeful stalker.”

• The respondent is intelligent and there is no reason to believe he could not benefit from therapy if he can overcome resistance to change.

• The respondent blames others for his predicament, including the Crown, his counsel and K.H. He projects rather than accepts responsibility.

• Dr. Gojer opined that the victim K.H. did not experience “severe psychological harm.” However, he acknowledges that is an issue for the court to decide.

• The risk for violence by the respondent is low but the risk of causing psychological harm is high.

• He essentially agrees with the PCLR score recorded by Dr. Ramshaw.

• His sources of information for his 2016 report did not include the transcripts of the trial evidence of K.H., the respondent and his parole officer on the index offences.

• In his self-report, the respondent still believes his convictions that led to an LTO in 2006 were based on lies.

• He agrees with Dr. Ramshaw’s recommendation for the need of long-term therapy.

GLADUE ISSUE

[60] On November 28, 2013, Aboriginal Legal Services of Toronto (ALST) received a request from counsel to prepare a Gladue Report for the respondent. A caseworker was assigned, met with the respondent and conducted research into information provided by him and his counsel. By letter dated February 18, 2014, ALST advised that they could not prepare a Gladue Report for the respondent. The following excerpts from that letter detail the reasons for their conclusion:

Mr. Kicknosway met with Mr. Cook at the Metro East Detention Centre on Wednesday, January 22. At the January 22 interview, Mr. Cook had no specific knowledge of his Aboriginal ancestry. He indicated that he believed his Aboriginal ancestry was through his paternal grandmother. He stated that he did not know much about his ancestry because his father did not speak of it in too much detail.

Mr. Kicknosway contacted Mr. Arthur Cook, William Cook’s father on February 12. Arthur stated he did not know his mother as she was not present in his life. Arthur was told by his paternal aunts on one occasion when he was between the ages of 13 and 16 that his mother was a “crazy drunken Indian.” Arthur further indicated that he did not pursue further information regarding his mother or ancestry. When he was a teenager, Arthur lived with his father for a few years but learned nothing of his mother during this time. Arthur indicated that he did not pursue any additional information about his mother nor about the possibility that he was of Aboriginal ancestry.

Arthur stated that his (sic) believed his mother’s name to be Marian Cripps and to have been born in 1906 or 1907. He did not know where Marian was born but strongly believed it was in Ontario. After an archival search of the fifth scheduled collection of national statistics, no individual by that name matched the suggested birth year. It was noted that the surname Cripps is often of Irish and Scottish origin.

At this point in time we are unable to prepare a Gladue Report for Mr. Cook for two reasons. First, we are unsure, as is he, about the specific nature of his Aboriginal ancestry and second, even if his ancestry was somehow able to be confirmed we cannot address how being an Aboriginal person has affected his life circumstances. The purpose of a Gladue Report is to discuss the way in which the individual before the court has been influenced and affected by their Aboriginal ancestry, whether by systemic factors or historical reasons.

[61] By letter dated February 18, 2014, counsel for the respondent provided further information to ALST obtained from the respondent’s estranged parents. The majority of the further information was from the respondent’s father, Arthur Cook. He had been interviewed by ALST before their response of February 18, 2014. This court did not receive any further reports from ALST.

[62] When sentencing an Aboriginal offender, a court must consider:

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

(b) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her Aboriginal heritage and connection: s. 718.2(e) of the Criminal Code; R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688 at para. 66; R. v. Ipeelee, 2012 SCC 13 at para. 59.

[63] The status of an offender as an Aboriginal does not play a role in determining whether or not the offender is to be declared a dangerous offender. However, status as an Aboriginal must be considered in determining what a fit and proper sentence is. That would relate to whether there should be an indeterminate sentence or the length of a determinative sentence: R. v. Radcliffe, 2017 ONCA 176 at para. 63; R. v. Mattson, 2014 ABCA 178 at para. 44.

[64] The respondent has advanced an extremely tenuous basis for application of the Gladue principles in this case. The ALST was not satisfied that the respondent has Aboriginal roots or that his life has been impacted by the Aboriginal experience. The follow-up letter dated February 18, 2014 from counsel contains information from the same sources interviewed by ALST. If I accept this further information as valid, it does little more than indicate an Aboriginal connection for the respondent’s father but not for the respondent.

[65] There can be no doubt that the systemic and background factors affecting Aboriginal people have impacted succeeding generations. A formal Gladue Report is not a condition precedent to the applications of the principles set out by the Supreme Court of Canada in Ipeelee. There may be other sources of information that are relevant. The respondent relies on a self-report and incremental information from his parents. The respondent has not been a reliable source of information over the years in his dealings with the courts and others. I am satisfied that there has been dysfunction and turmoil in his family history that may have been linked, at least tenuously, to the Aboriginal experience. I will consider this along with the other relevant factors as to the appropriate length of the determinate sentence to be imposed.

CONCLUSION IN REGARD TO DANGEROUS OFFENDER

[66] Counsel for the respondent accurately focused on whether or not the criminal harassment convictions constituted serious personal injury offences as the threshold issue. For the reasons above I am satisfied beyond a reasonable doubt that they were serious personal injury offences.

[67] Based on the facts related to the index offences and the prior convictions for very similar types of offences, there is a clear pattern of repetitive criminal behaviour. Prior incarcerations and court orders have been singularly unsuccessful in restraining his behaviour. He has inflicted severe psychological harm on women in the context of relationships. The fact that he was declared a Long-Term Offender in 2006 and committed the index crimes while bound by a LTSO speaks volumes about the pattern in his behaviour and the danger he presents to any woman he is involved with. The target group of his criminal actions is significantly focused on those women. He displays a lack of empathy for his victims. Indeed he views himself as the main victim. By his antecedents and psychological makeup he presents as a threat to the safety or mental well-being of other persons. I am satisfied beyond a reasonable doubt that he has been proven to be a dangerous offender as defined in s. 753.

[68] I am also satisfied that the conduct of the respondent over the years with various female partners constituted persistent aggressive behaviour. His lack of empathy for the victims, and viewing himself as the victim, demonstrated a substantial indifference by him respecting the reasonably foreseeable consequences to other persons of his behaviour. He has sat in numerous courtrooms over the years and heard the various victims testify as to the shattering impact of his actions on their lives. Jail terms and community supervision orders have had negligible impact on changing his behaviour. He lacks insight into the harm caused to the victims.

DNA ORDER

[69] Criminal harassment is a secondary designated offence pursuant to s. 487.051(3) of the Criminal Code. In deciding whether to make this discretionary order, the court must consider the following:

• The person’s criminal record;

• The nature of the offence;

• The circumstances surrounding its commission; and

• The impact such an order would have on the person’s privacy and security of the person.

[70] In light of an adult offender’s diminished expectation of privacy following a conviction, the minimal intrusion into the security of the person in the ordinary case and the important interests served by the DNA data bank, it will usually be in the best interest of the administration of justice for the order to be made: R. v. F. (P.R.), 2001 CanLII 21168 (ON CA), [2001] O.J. No. 5084 (Ont. C.A.); R. v. B. (K.) (2003), 2003 CanLII 13967 (ON CA), 179 CCC (3d) 413 (Ont. C.A.).

[71] Bearing in mind the extensive criminal record, the judicial determination that he has gone from Long-Term Offender to Dangerous Offender, the circumstances of the index offences and the minimal intrusion in carrying out the process, I am satisfied that it is in the best interest of the administration of justice that the order be made.

LONG-TERM SUPERVISION ORDER

[72] The parties agreed that if the respondent was declared a dangerous offender there should be a Long-Term Supervision Order for ten years.

[73] Pursuant to s. 753(4)(b) of the Criminal Code, there will be a LTSO for ten years. Pursuant to s. 753.2, that order begins when he has served the custodial sentence to be imposed. He is currently subject to an LTSO that will end on September 20, 2017. Section 753.4(1) of the Criminal Code provides that where a court sentences someone for offences committed while subject to a LTSO, the court may order that existing order to be terminated. I am making that order in this case so that the ten-year LTSO that I now impose will run from the time the respondent completes his custodial sentence.

[74] The terms of the LTSO will be as follows (all references to supervisor refer to the supervisor of the LTSO):

(a) on release, travel directly to the offender’s place of residence, as set out in the release certificate respecting the offender, and report to the offender’s supervisor immediately and thereafter as instructed by the supervisor;

(b) remain at all times in Canada within the territorial boundaries fixed by the supervisor;

(c) obey the law and keep the peace;

(d) inform the supervisor immediately on arrest or on being questioned by the police;

(e) at all times carry the release certificate and the identity card provided by the releasing authority and produce them on request for identification to any peace officer or supervisor;

(f) report to the police if and as instructed by the supervisor;

(g) advise the supervisor of the offender’s address of residence on release and thereafter report immediately

(i) any change in the offender’s address of residence,

(ii) any change in the offender’s normal occupation, including employment, vocational or educational training and volunteer work,

(iii) any change in the domestic or financial situation of the offender and, on request of the supervisor, any change that the offender has knowledge of in the family situation of the offender, and

(iv) any change that may reasonably be expected to affect the offender’s ability to comply with the conditions of or statutory release,

(h) not own, possess or have the control of any weapon, as defined in section 2 of the Criminal code, except as authorized by the supervisor; and

(i) not have any contact by any means, direct or indirect, with K.H. or any member of her family;

(j) to attend and actively participate in any psychological, psychiatric or other counselling recommended by the supervisor;

(k) sign any releases required by the supervisor to receive ongoing reports of attendance at and participation in any counselling recommended by the supervisor;

(l) to immediately report and on an ongoing basis full particulars of all relationships with women other than members of his family;

(m) abstain from the possession or consumption of alcoholic beverages and non-prescription illegal drugs; and

(n) such further terms as the supervisor may deem appropriate.

ANCILLARY ORDERS

[75] Pursuant to s. 109 of the Criminal Code, William Cook is prohibited for life from possessing:

(a) any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance;

(b) any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition.

[76] Pursuant to s. 743.21 of the Criminal Code, William Cook is prohibited from communicating, directly or indirectly, with K.H. or any member of her family during the custodial period of his sentence.

[77] Pursuant to s. 487.051(3), William Cook is ordered to provide a DNA sample for forensic analysis. This relates to counts two and three being criminal harassment, contrary to s. 264 of the Criminal Code.

[78] Pursuant to s. 737, William Cook is to pay the victim surcharge of $200.00 for each of the four indictable offences he was convicted of for a total of $800.00

THE DETERMINATE SENTENCE

[79] The following provisions of the Criminal Code set out certain principles that must be considered in assessing the appropriate sentence in this case:

Purpose

718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

Fundamental Principles

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Other sentencing principles

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner,

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,

shall be deemed to be aggravating circumstances;

(b) sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

[80] There is no dispute between the parties as to the quantitative credit for the period of November 20, 2013 – March 22, 2017. That will be on a 1:1 basis, for a total of three years and four months.

[81] The respondent seeks a further credit on a qualitative basis related to the lockdowns he experienced, being as follows:

(d) 46 days of all day lockdowns;

(e) 57 partial daytime lockdowns; and

(f) 288 evening lockdowns.

[82] Based on R. v. Bedward, 2016 ONSC 939, R. v. Duncan, 2016 ONCA 754 and R. v. Summers, 2014 SCC 26, I am satisfied that the respondent should receive a further credit of two months for the total and partial lockdowns he experienced while awaiting final disposition of these charges. Thus, the total credit for pretrial custody will be 3.5 years. That will be deducted from the global sentence to be imposed on the four counts before me.

[83] The two counts of criminal harassment are a continuum of conduct by the respondent over a period of almost three months. The respondent has several prior convictions for the same type of offence and the same target group of victims. There is a need to reflect both general and specific deterrence for such offences: R. v. Bates, 2000 CanLII 5759 (ON CA), [2000] O.J. No. 2558 (Ont. C.A.) at para. 42. The impact of these crimes on the life of K.H. was significant. The prospects for rehabilitation are remote.

[84] The property damage related to the mischief count is not significant. However, the context of that act is serious as it was part of a pattern of abuse and intimidation inflicted on the victim.

[85] Section 753.3(1) of the Criminal Code provides for a maximum sentence of ten years for breach of a long-term supervision order. These orders are imposed primarily to protect the public but also to assist the offender in rehabilitation. The breach in this case was not an isolated occurrence or a technical breach. By his criminal conduct, the respondent breached the most fundamental term of the LTSO. There is a significant need to reflect general deterrence for breaches of court orders.

[86] The sentence for breach of the LTSO must be consecutive to those for the other counts. I must also consider the issue of totality. After consideration of all aspects of this case, the applicable principles and the background of the respondent, the determinate sentences before consideration of pretrial custody are as follows:

Count two – criminal harassment – three years

Count three – criminal harassment – one year concurrent

Count four – mischief to property – one year consecutive

Separate count of breach of LTSO – two years consecutive

Total: six years

RESULT

[87] For clarity, the final disposition in this matter is as follows:

1. On counts two and three of the indictment, the respondent is declared to be a Dangerous Offender;

2. The respondent will be subject to a ten-year Long-Term Supervision Order that will run from the time he has completed the custodial aspect of his global sentence;

3. There will be the ancillary orders I have referred to;

4. The custodial sentences are as follows:

Count two – three years

Count three – one year concurrent

Count four – one year consecutive

Separate count of breach of LTSO – two years consecutive

The global sentence is six years less 3.5 years’ credit for pretrial custody

The total sentence going forward is 2.5 years.

[88] I am grateful to all counsel for their assistance throughout this long process.

B. P. O’Marra, J.

Released: March 22, 2017

CITATION: R. v. Cook, 2017 ONSC 1434

COURT FILE NO.: CR-13-10000743-0000

DATE: 20170322

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

Applicant

– and –

WILLIAM ARTHUR COOK

Respondent

RULING ON DANGEROUS OFFENDER APPLICATION

B. P. O’Marra, J.

Released: March 22, 2017