R. v. Eamer, 2017 ONSC 2549

CITATION: R. v. Eamer, 2017 ONSC 2549

COURT FILE NO.: 15-52

DATE: 2017/05/01

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JASON EAMER

Accused

COUNSEL:

Elaine Evans and Matthew Collins, counsel for the Crown

Paul Lewandowski, counsel for the accused

HEARD: October 9, 2015, November 28, 2016, December 5,6,7,8,12,14,15, 2016

WRITTEN SUBMISSIONS FILED: February 17, 2017 March 31, 2017 April 13, 2017

REASONS FOR JUDGMENT ON DANGEROUS OFFENDER APPLICATION

LALIBERTE, J.

INTRODUCTION

[1] On October 9, 2015, the accused Jason Eamer plead guilty to criminal harassment, forcible confinement, assault, assault with a weapon, breach of probation and possession of a weapon for a purpose dangerous to the public peace. All of these offences occurred between the period of May 23, 2014 and June 28, 2014 in the City of Cornwall. They are of a domestic violence nature and revolve around his then girlfriend, the victim Samantha MacKay.

[2] The Crown has brought an Application pursuant to section 753 of the Criminal Code for a finding that Jason Eamer is a dangerous offender and seeks a sentence in a penitentiary for an indeterminate period.

[3] The accused opposes the Crown’s request and asks that a long-term offender designation be imposed. Alternatively, if found to be a dangerous offender, a sentence or sentence followed by long-term supervision should result.

[4] The Court is asked to decide the issues in this matter on the basis of the following evidentiary record:

− The facts in support of the predicate offences conveyed to the Court by Crown counsel and admitted by defence on October 9, 2015

− A memory stick filed on consent as Exhibit #4 containing materials pertaining to Jason Eamer, including: ➢ Facts for the predicate offences ➢ Criminal history ➢ School records ➢ Correctional records ➢ Assessments ➢ Police records ➢ Probation records ➢ Hospital records

− Evidence relating to the administration by the authorities of the various sentencing options

− Forensic psychiatric evidence

THE FACTS

1. Facts for predicate offences

[5] The accused and victim, Samantha MacKay were in a relationship between the period of May 23, 2014 and June 28, 2014. They dated for one month.

[6] He was on probation at that time with a condition to keep the peace and be of good behaviour.

[7] On June 28, 2014, the victim was at the accused’s residence where she had spent the night.

[8] He awoke at around noon and was upset with her as he felt she was taking up too much room on the bed and told her to “get her fucking off my side of the bed”. He became more upset after she received a phone call from her former boyfriend, the father of her son.

[9] The argument became heated and she told him she was leaving. He threw a thermos at her, striking her left thigh. This left a circular bruise.

[10] The victim left out the back door but soon realized she had left her wallet and apartment keys inside the accused’s home. She returned and while walking up the outdoor stairs, he began calling her names and slammed and locked the door.

[11] She began knocking at the door asking for her keys. She called him but he hung up. She shouted that she would call the police if he didn’t let her in to collect her things.

[12] The accused then opened the door but would not allow her in, slamming the door in her face. She then stated that she would call the police and began dialing her phone. He told her not to call the police and let her in.

[13] Once inside, the argument continued and he struck the victim in the back of the head with a closed fist. The blow was hard enough to give her a headache for several days.

[14] She decided to leave without her belongings. As she was attempting to move towards the back door, she was again hit with a closed fist in the back of the head. While trying to exit towards the front door, she was again struck in the same way. She tried one further time to exit the back door, but was again struck by the accused’s closed fist.

[15] The victim managed to get to the front door while he was at the back of the apartment. He told her that he would hurt himself if she left. She saw him at the utensil drawer. She was fearful for her safety and afraid of what he would do at that point.

[16] She saw him standing in his kitchen with a steak knife in his hand. It was six inches long including the handle.

[17] The victim left out the front door and went down the outer stairwell to the sidewalk. He followed her to the sidewalk dressed only in his boxer shorts. He did not have the knife with him at this point.

[18] She told him she was going to call the police. He got on his hands and knees and begged her repeatedly not to call the police or tell them his name. She continued to call and when she mentioned his name, he ran back up the stairs to his apartment.

[19] She then saw him on the porch holding a knife to his throat and making stabbing gestures towards his neck. He did not actually cut himself at this point. She was still on the phone with police. He went inside his apartment, shutting the door.

[20] The accused then exited the apartment to the front porch, covered in blood and said “Look what you’ve done”. She saw blood on his hands and chest. He went back in his apartment and locked the doors.

[21] Police arrived on scene and breached the door to gain entry. The accused was located in the bathroom covered in blood. Blood was spattered throughout the apartment, mainly concentrated in the bathroom. This is shown in a series of photographs which were collectively filed as Exhibits 1(a) to 1(n).

[22] He had cut himself in the neck area. He was brought to the hospital where the injuries were later determined to be non-life threatening.

[23] At the preliminary inquiry held on June 3, 2015, Ms. MacKay disclosed further incidences of domestic violence which had occurred during their month-long relationship.

[24] She testified that an argument had occurred over the accused’s insistence about her not wearing clothing while at his residence. She had resisted his request and he threw an ashtray at her which struck her in the middle of the back resulting in a bruise that remained 3-4 days. He then punched her in the back of the head.

[25] The victim described another argument in which he struck her in the back of the head and pushed her against the wall. She escaped to the bathroom and he followed her, yelling and demanding that she open the bathroom door. When she did, he stood in her path blocking her way. She pushed him twice to try and get out of the bathroom. He then spit in her face and slapped her.

[26] The victim then tried to leave the apartment through the back door. He grabbed a hammer and threatened to hit himself in the head with it if she left. She began to leave. He hit himself in the head with the hammer causing a visible bloody injury. She was afraid that he would throw the hammer at her. As she began to walk home, the accused followed her. Once at her home, he demanded entry but she refused despite his insistence. She eventually agreed to return to his apartment with him as she feared he would hurt himself further.

[27] She also describes multiple occasions where he would physically and/or psychologically prevent her from leaving the residence or ending the relationship. These included him holding doors shut, standing in front of exit points, blocking her path and closing doors as she attempted to leave. This led her feeling trapped, confined and unable to escape.

[28] Further, while both parties were at her apartment, an argument occurred in regards to his jealousy and controlling behaviour. He deliberately banged his head against a wooden door frame, again causing a visible blood injury. She feared what he would do either to himself or her.

[29] She explained that she was fearful of remaining in the relationship but was also afraid to end it, for fear of what would happen if she did.

[30] During the course of the relationship, the accused would not allow Ms. MacKay to see her mother, as he did not want her to speak with outside people. He also prevented her from seeing her brother, and when she questioned him as to why, he stated it was because her brother had a penis. He would also yell at her when she would try to visit with her young son.

[31] In her July 21, 2015 victim impact statement, Ms. MacKay explains how she went into a severe depression following these events. She lost significant weight. She is afraid that he will break into her home even knowing he was in jail. He made her feel worthless, as if she was garbage. She now has a very hard time trusting most men and feels this will impact on her future relationships.

[32] She also describes the bruises and bumps on the back of her head.

2. Criminal History

[33] The accused’s criminal record was filed as Exhibit 2A and is reproduced below.

[34] The more significant entries on the accused’s criminal record for the purpose of this Application start on July 24, 2006 and onward. These will be briefly reviewed.

July 24, 2006

Charges: - sexual assault (s. 271)

• assault X 3 (s. 266)

Jurisdiction: Ottawa

Summary:

The offences occurred between April 24, 2005 and May 4, 2005. The victim is W.F.. She met the accused through mutual friends around April 11, 2005. He moved in with her and her two children within days. He became violent soon thereafter. He had to have his own way or he exploded with anger. He told her she wouldn’t deny him. The victim described the following:

− He wouldn’t let her visit friends or family; he was angry because her sister visited − He would wake up angry and call her “whore”, “cunt”, “slut” − He was jealous of her children; on one occasion he demanded that she return to him when she had fallen asleep next to her daughter; he slapped her face; while he raised his hand at one of the children, he never struck the children; he did call them “niggers”, “cunts” − He would request sex and oral sex on demand; he would demand 5 times a day and state “you do not say no to me”; she refused once and he beat her dog in front of her; he was violent during sex; he slapped her buttocks with such force that it left handprints − The assaults consisted of: • He slapped her across the face • He grabbed her face with both hands and squeezed • He struck her back with a cord 10 times • He flicked her face constantly • He kicked her hard on her right knee • She was scared and tolerated his behaviour and complied to avoid repercussions she told him to leave on May 11, 2005 while her sister was present; he kept calling on May 12-13, 2005; she went to the police on May 13, 2005; he was arrested on May 29, 2005

The pre-sentence report dated July 22, 2006 reveals the following information:

− As a child, Mr. Eamer is described as controlling, demanding and impulsive; he insisted on having his own way; he threw temper tantrums when his wants were denied − He did what he wanted as an adolescent; there were episodes when family members barricaded themselves in their bedrooms to avoid his angry outbursts; his parents threatened to have him removed from the home by the police; he is said to have “terrorized” family members through his anger outbursts − He has longstanding anger management problems − In 1983, school records describe him as a “volatile young man” − He was in a common law relationship with Krista Allen for 5 years while living in Kitchener; she reported that: • His temper flared • He yelled and called her names • He hit her on the arm once • She left him because of his unwillingness to address his anger issues. − He was in a month long relationship with Domenique Lafleche resulting in a child; he insisted on having his own way all the time; they argued constantly − His former girlfriends report: • Abusive behaviours of varying degrees • Verbal and mental abuse • Intimidation through displays of rage were common • Incidences of physical abuse • He was possessive and jealous; anger escalates quickly − In 1994, he self-referred to anger management in Brockville but ceased to attend after 2 months − He acknowledges his abusive behaviours in previous relationships; he is said to recognize that his demanding nature and insistence in having his own way intimidated and frightened past girlfriends − Following his arrest, he commenced counselling with Jewish Family Services; he met the worker weekly for a year; he is described in positive terms: • Committed • Takes responsibility • Shows insight − He also completed New Directions between September and December 2005; he is again described in positive terms: • Highly motivated • Appears sincere • He is constructive • Accepts responsibility • States having learned to change his abusive ways − It is noted that: • Long-term intervention is required • He is needy and desperate in his want to be in a relationship • Counsellors recommend against his involvement in any relationship until he is emotionally prepared − The victim W.F. is described as fearful; she wants no further contacts; she is afraid of meeting other men; she did not return to her home for 7 months following his arrest

Justice Diane Nicholas was the sentencing judge on July 24, 2006. She raised the following concerns:

− The victim lived in terror; he was a bully, controlling and demeaning as he has been in other relationships; this has been a very longstanding problem for him − It cannot be said that this pattern of behaviour is in any way out of character; it is a pattern of behaviour that has been ingrained throughout his life − Long term counselling is required to address well-entrenched beliefs and patterns − It is a significantly abusive pattern of behaviour which needs to be addressed

January 19, 2007

Charges: - sexual assault (s. 271)

• breach of undertaking (s. 145(5.1))

Jurisdiction: Ottawa

Summary:

The victim in this matter is K.S.-Q., a mother of 5 children. She met the accused through his mother who was her boss at work. She had a brief intimate relationship with the accused. She put an end to their relationship by reason of his angry outbursts. They then resided together as roommates only.

The offences took place on October 7, 2005. She was asleep in her bedroom when she felt a hand on her left shoulder. The accused was shaking her and telling her to wake up. She told him to leave her alone. He kissed her neck and shoulder. He shook her more forcefully and she again told him to leave her alone and not touch her. He then pushed her onto her back and put his leg over her so she couldn’t move. He then yelled “do you want me to hate you? Is that what you want for me to hate you? Because it’s working, I hate you”. He then grabbed and kissed her breasts. She was trying to push him away. He digitally penetrated her vagina. Her two young children called out from the doorway. He got off the victim and she was able to get away. She went to her children’s bedroom. The accused was pacing up and down the hallway calling her a bitch. He eventually went to bed. She later saw him hitting himself on the head. She reported the incident to the police on October 26, 2005. She states having noted his bad temper within a few weeks of residing with him.

The January 19, 2007 pre-sentence report reveals the following information:

− There had been a recommendation for the accused to attend the St. Lawrence Valley Treatment Centre (sex offender program) but the transfer was deferred because of the new charges − He is said to be eager to commence treatment to better understand his mood swings and anger; he is tired of being miserable and angry; he wants to be a good role model for his son − He had made a number of requests to meet with institutional psychologist for depression, temper control and stress − He is described as motivated; he takes responsibility for his actions; he attributed his behaviour to becoming frustrated when he does not get his own way − It is said that he would derive great benefit from the program at St. Lawrence Valley Treatment Centre

Mr. Eamer stated the following at the January 19, 2007 sentencing hearing:

“…I know the things I’ve done are wrong and I want to get the help I need to change to change and be a better role model for my son.”

The sentencing judge stated the following:

“I want to support your intention to make changes… If you do not, ultimately, with these types of offences and the two that you now have on your record, you end up spending the rest of your life in jail and it is as stark a comparison as that between what directions you can go in.”

September 27, 2010

Charges: - assault (s. 266)

Jurisdiction: Perth

Summary:

The victim is Shanna Acres with whom the accused lived in a common law relationship. There is a child of the union. The assault occurred on June 5, 2010. They argued over laundry. He wanted her to do the laundry. He punched her on the side and the back of her head a number of times. He also punched her on the arm and shoulder. He picked her up off the floor by her hair after she had fallen on the floor. He called her a stupid “cunt” and “bitch”. He smashed both his and her cell phone so she couldn’t call anyone. He then kept apologizing and she left with their son. She attended the police station. Police observed bruises on her arm and shoulder.

Reference is made at the September 27, 2010 sentencing hearing to Mr. Eamer seeking help in respect of his mental health and the “way he acts out”. Letters authored by psychiatrist Doctor Jonathan Gray were filed as exhibits. The need to reduce Mr. Eamer’s level of irritability so as to lower the risk of reoffending violently is noted on the record by his counsel.

May 2, 2011

Charges: - assault X 4 (s. 266)

• breach of probation X 4 (s. 733.1)

Jurisdiction: Brockville

Summary:

The victim of the four assaults is Melissa Looyen who was in a common law relationship with the accused. The offences took place between November 22, 2010 and December 1, 2010 and are described as follows:

− She was in a vehicle with the accused when he became upset and punched her on the head − While at the residence, he pinned her down by straddling her and punched her repeatedly on the shoulder for 20 seconds − She was taking a shower when he entered and slapped her across the face. He called her a slut − He became upset and threw a coffee table across the living room. He began to yell and punched her on the head. She pushed him back to get away and he again punched her on the head

The victim in regards to the four breaches of probation is Shanna Acres. He was bound by a condition not to communicate with her. Between the period of December 14, 2010 and January 4, 2011 he communicated with her by sending a letter, an e-mail and leaving a voicemail message.

At the May 2, 2011 sentencing hearing, Crown counsel noted that the victim Ms. Looyen had provided a letter wherein she indicates being supportive of the accused and wanting to have contacts with him. She suggested that she would recant on her statement given to the police.

Victim Mrs. Acres was said to be afraid of the accused and not wishing of any contacts with him.

The following comments are noted on the record:

− The accused was diagnosed as bipolar and with adult attention deficit disorder; this came from a report prepared by Dr. Bradford − Dr. Bradford had opined that the offences were due to Mr. Eamer being off his medication which increased his irritability − Counsel for Mr. Eamer states that the accused realizes that he needs to get his life back on track and his medical issues in some kind of order − He has been under the care of Dr. Gray for quite a while and “he knows he needs to be under care of Dr. Gray and willing to do so upon release”

October 5, 2011

Charges: -assault X 2 (s. 266)

Jurisdiction: -Brockville

Summary:

The victim is Melissa Looyen. She was assaulted on September 7 and 11, 2011. She contacted the police after leaving the home in the early morning hours of September 11. She advised the police that the accused had not been taking his medication and was bipolar. She described the assaults as follows:

− On September 7, 2011, they were in an argument; he lost control and hit her on her forehead and arms; she had visible bruises − On September 11, 2011, she told him that she wanted to end the relationship; he was refusing to leave her home; he stated that he would only leave if police removed him; he threw an ashtray on the floor and then struck her when she bent over to pick it up; she was struck several times on the back of the head; he then told her she now had a reason to call the police

Mr. Eamer was on probation for assaults against the same victim at that time.

In her video statement to the police, she states that she had promised him that she wouldn’t call the police.

Justice MacPhee imposed a 9 months jail term followed by 3 years probation as sought by both counsel.

Counsel for the accused referred to the following ailments in his submissions to the Court:

• Bipolar • ADHD • Sleep apnea • Depression • The accused was involved with the anger management disorders clinic for “quite some time” and “meets regularly with Dr. Gray” • Counsel stated: − “…he is remorseful…extremely remorseful and he – undertakes to try and get help for the issues….he is wishing to serve the sentence at the St. Lawrence Treatment Facility…”

October 16, 2012

Charges: - assault X 2 (s. 266)

• forcible confinement (s. 279(2))
• mischief (s. 430)

Jurisdiction: Pembroke

Summary:

The victim is Carrie Stewart. The offences occurred between June 1, 2012 and September 6, 2012. She had an online relationship with him for one year. They met in June 2012 and moved in together. He soon thereafter became very violent, controlling and obsessive. She describes the following:

− She was not allowed to leave the house − She couldn’t take a bath or go to the bathroom without him − He had to be present when she called people; she wasn’t allowed to have a key for their home; she had to sell her car − She wasn’t allowed to leave the home without him − She couldn’t hug her children

She described the following violent incidents

− Soon after moving in together, he believed that she was cheating on him; he slapped her in the face and cut her lip; she wanted to leave but he blocked her way and wouldn’t allow her to leave; she hid in the bathroom − Three weeks later, she told him she wanted to end their relationship; he followed her in the bathroom where he grabbed her by the hair and punched her in the face; she told him she would call the police and again grabbed her by the hair; he blocked her way and wouldn’t allow her to leave the apartment − On one occasion, they were in bed and she did not want to have sex; he head butted the victim in the back of her head leaving bruises and headache which lasted 3 days − He kicked her on the leg during an argument − He placed a mattress up against the front door so that she couldn’t leave at night − He would hit himself with a rubber mallet over his head − He threw a glass ashtray against a wall; he smashed a plate over his head and broke it; he would wack his head on the counter − In a video interview given to the police on November 6, 2015, the victim states that she is fearful of the accused; he stated that he would kill her, her children and family; the impact on her is also described in a November 6, 2015 victim impact statement

Justice Radley-Walters recommended that Mr. Eamer serve his sentence in the St. Lawrence Centre in Brockville. She stated the following:

“Obviously, Mr. Eamer, you need some assistance in terms of living in society. This is not the behaviour that is acceptable. It is criminal behaviour and unfortunately for you if when you get out you continue this kind of behaviour, simply you can see the writing on the wall that in all likelihood you will end up in penitentiary the next time.”

[35] The Court is provided evidence in regards to the accused’s conduct towards Julie Carruthers. Exhibit #4 reveals that Mr. Eamer was initially charged under sections 266 (assault) and 267(b) (assault causing bodily harm) against Ms. Carruthers. The incidents took place in March and May of 2006. These were reported by her to the police on May 26, 2006.

[36] Ultimately the charges were withdrawn and Mr. Eamer entered into a section 810 recognizance. The facts conveyed to the Court on December 18, 2006 can be summarized as follows:

− The parties were in a common law relationship; Ms. Carruthers advised the police she was in an abusive relationship and was leaving the residence − They had been living together since March 17, 2006 after meeting on the internet − He becomes frustrated easily when his needs were not met sexually or generally − She recalled incidents where he would hit her in the face with a pillow during conflicts − On May 2, 2006, he became enraged when she told him she wanted to leave; he started to hit himself on the head with a hammer; she intervened and removed the hammer; he then ran out of the bedroom and threw himself down the stairs landing at the bottom; she again told him she was leaving him and he hit her on both sides of her head with his hands and pushed her into the dining room table where she struck and injured her finger on a chair − In March 2006, he punched her on the head and threw his son on the bed; she sustained a bump on her head

[37] On October 29, 2015, Ms. Carruthers provided a video interview to the police during which she gave the following additional information:

− She describes Mr. Eamer as controlling and possessive; he has anger issues; he is jealous − He wouldn’t let her speak to family or friends; he became upset when she spoke to others; she always had to be with him; he believed she was cheating on him − He once disconnected the spark plugs of her vehicle so she couldn’t leave − She was afraid of how he would react

3. School Records

[38] The Court was provided with Mr. Eamer’s school records from 1980 to 1990. These reveal significant concerns with his behaviour at a very early age.

[39] The following is noted in 1981 while in Kindergarten:

− He becomes easily upset − He is aggressive towards his peers − He is uncooperative and manipulative − Teachers are concerned for his safety and safety of others − He has a high level of hostility as well as aggressiveness − His impulsive actions pose a threat of potential danger to his peers − He reacts in an impulsive manner

[40] The records reveal incidents of violence towards other students:

− He would push and shove other students − He pushed another student off a stage − Often striking out at classmates with various objects − He held a pair of scissors to another child’s throat following a comment regarding his work

[41] He was referred to the Royal Ottawa Hospital for an assessment while in Kindergarten. A June 16, 1982 psychological assessment identified lack of self-control as an issue.

[42] In November 1982, it is noted that he had a “very low frustration tolerance” He will often over-react when chastised to the slightest degree by an adult.

[43] Mr. Eamer attended grade 2 in 1982 at the Beechgrove Regional Children’s Center as an in-patient. He did so by reason of his behaviour problems identified as hostility, aggressiveness and inability to exert self-control.

[44] The November 1983 entry indicates that he is easily frustrated and prone to temper tantrums.

[45] Reference is made on January 28, 1988 to him hitting a girl and this was the first time this had happened. Counselling is recommended to defuse his “fierce anger, temper tantrums and violence”.

[46] In 1989, the records suggest what is termed as “a dramatic turn-around”. Mr. Eamer is described as calm and polite. He is capable of functioning in a regular classroom.

[47] It is said that he had made great gains over the last two years. He hasn’t been getting into fights and arguments with other students. He demonstrated control over his emotions.

4. St. Lawrence Valley Correctional and Treatment Center Records

[48] Mr. Eamer has served three separate jail sentences at the St. Lawrence Valley Correctional and Treatment Center. They are as follows:

− February 14, 2007 to August 19, 2007 − October 12, 2011 to April 5, 2012 − November 29, 2012 to April 3, 2013

[49] The complete records of Mr. Eamer’s stays at this center were filed with the Court as exhibits. The Court has reviewed same and highlights the following information contained therein:

February 14, 2007 to August 19, 2007

[50] In his August 28, 2007 discharge summary, staff psychiatrist Dr. Brad Booth explains that Mr. Eamer had a number of challenges. He notes that he was angry, impulsive and had gotten into a number of confrontations with both staff and co-patients. He is described as quite controlling when he was in charge of the laundry group. He would harm himself by banging his head into a wall.

[51] Dr. Booth states that he did improve significantly once his medication was adjusted but remained with impulsive anger.

[52] The nursing record on discharge dated August 19, 2007 reflects the same concerns. He is described as generally cooperative with staff but becomes upset if they do not intervene the way he feels they should. He can be inflexible and verbally abusive when angry. He had numerous conflicts with peers.

[53] Mr. Eamer participated in the following programs:

− Self-regulations for sexual offenders − Substance abuse psychotherapy − Substance recovery issues − Self esteem − Essential employment skills

[54] He did not participate in the anger management program by reason of the waiting list.

[55] A psychosexual risks assessment completed by psychometrist Dr. Mike Saelhof disclosed that Mr. Eamer is at medium-high risk category for sexual recidivism.

[56] It is said that Mr. Eamer had shown some improvement during his stay. The following are noted:

− He has made gains in his ability to control his impulses but this remains an area requiring further attention; he identified plans to do so − He continues to behave somewhat impulsively when angry and frustrated but he has improved − He admits to a history of feeling entitlement to sex in intimate relationships; he used sex as a way to dominate and control partners; his current attitude was describe as more pro-social ; he spoke of mutual respect and equality − He is increasingly aware of risk factors (life history events, low self-esteem, intimacy deficits, relationship problems); he accepts responsibility for his actions and has generated a comprehensive list of strategies to avoid and better manage the risk factors − He has come to realize that his bullying, abusive and controlling behaviours within intimate relationships are largely influenced by self-esteem, insecurity and lack of self-confidence; he engages in aggressive domineering, controlling and bullying to cope with his jealousy

[57] Dr. Booth referred Mr. Eamer to the Royal Ottawa Hospital anger management program.

[58] In his August 15, 2007 report , Dr. Booth provides the following opinion:

“It is my opinion that without appropriate treatment of his ADHD using Strattera, he poses a significant risk to the safety of others. However with treatment this risk is manageable in the community.

October 12, 2011 to April 5, 2012

[59] Mr. Eamer is described in fairly positive terms during this second stay. The discharge summary dated April 4, 2012 prepared by Dr. Colin Cameron provides the following diagnoses:

− Bipolar − ADHD − Cannabis dependent − Antisocial personality disorder with dysfunctional anger − Borderline personality

[60] He completed a number of programs:

− Understanding illness − Medication management − “Dialectical Behaviour” − Self-esteem − “Living without violence”

[61] The records confirm that he completed these programs with success. He is described as an active participant. He took on a leadership role during the discussions and was receptive to feedback from others. He showed insight.

[62] The “Living without Violence” program focuses on healthy relationships and attitude towards women. Issues such as jealousy, healthy sexuality, emotional awareness and violence are discussed.

[63] Mr. Eamer’s participation in this group and “Dialectical Behaviour” is noted as follows:

− Active participant − Posed appropriate questions − Shared his insights − Good understanding of problem solving skills − Receptive

[64] It is said that Mr. Eamer showed a good understanding of risk factors such as use of drugs, trust, jealousy, attachment, mental illness and low self-esteem.

November 29, 2012 to April 3, 2013

[65] Mr. Eamer was admitted at the Center from the Ottawa-Carleton Detention Center by reason of recurrent domestic violence.

[66] The discharge summary of Dr. Colin Cameron dated March 25, 2013 explains that Mr. Eamer’s last stay was problematic.

[67] Mr. Eamer is reported as engaging in “recurrent staff splitting” and projecting blame on others. He was also verbally abusive towards his social worker. In a fit of rage he told her that she was just like his mother and that she was putting blame on him.

[68] He is described as follows:

− Has distorted automatic thoughts − Is entrenched in his point of view and resistant to looking at alternatives − Unable to work with key members of treatment team − Not cooperative to discharge planning with his social worker − He continues to be aggressive and violent especially towards women − Unable to accept responsibility for his own actions

[69] Mr. Eamer’s inability to work with his treatment team and his repeated requests when frustrated to be discharged from the Center led to his return at the OCDC.

[70] He did participate in the CALM program which teaches male participants to monitor and understand their emotions in order to prevent and control problematic behaviour. His participation in this program is described as good. He appeared motivated. He didn’t complete the program because of the transfer to the ODDC as he had asked various times.

5. Threat assessment prepared by Detective Sergeant Glenn Sheil

[71] Detective Sergeant Glenn Sheil is a member of the Ontario Provincial Police, Behavioral Sciences and Analysis Section, Criminal Behaviour Analysis Unit –Threat Assessment. His assessment of Mr. Eamer dated July 30, 2013 was filed in this hearing.

[72] His conclusion is found at page 3 of the said report:

“Assessment of Risk”

Based on the information provided, Jason Andrew Eamer presents a High risk for future violence towards any woman he is involved in a relationship with. “High categorization of risk indicates Mr. Eamer is at imminent risk for future violence towards future partners and intervention is required to prevent further acts of violence from occurring”.

[73] Sergeant Sheil explains that his finding is based on a compilation of indicators present with Mr. Eamer. These are viewed as Risk Enhancing in the analysis of the potential for violence, including sexual violence.

[74] The following are the risk factors identified by Sergeant Sheil in his assessment of Mr. Eamer:

− Previous violence • A reliable predictor of future behaviour is past behaviour − Relationship instability • Offenders with unstable intimate relationships tend to have more extensive criminal histories and higher rate of general and violent recidivism than those with stable relationships − Employment problems; • Unemployment is associated with an increased risk for general recidivism and unemployed offenders are more likely to recidivate violently − Substance abuse/dependence • Substance abuse is one of the strongest links to violent behaviour − Major mental illness • Individuals with major mental illnesses may have an increased probability and likelihood for committing violence and in particular when an individual abuses substances − Early maladjustment • Future violence and anti-social behaviour is strongly related to maladjustment within the home, school and community as a child − Personality disorder • Personality disorders in particular those whose key ingredients include anger, impulsivity and hostility, are predictive of an elevated risk for both general and violent criminal behaviour − Prior supervision failures • Individuals who violate conditions of release or supervision are at an increased risk of criminality and violence − Negative attitudes • Pro-criminal or anti-social attitudes are related to criminal and violent behaviour − Impulsivity • Impulsive persons are often quick to react to stress, slights and disappointments with no regard being given to the thought or consideration of the consequences of violence to the individual or others − Non-compliance with remediation attempts • Non–compliance with intervention indicates an individual’s unwillingness to comply with medication and other treatment efforts − Lack of positive support networks; • Positive support networks can increase the effectiveness of risks reduction or intervention attempts and may reduce the risk of exposure to risk enhancing conditions

6. Occurrence reports while in custody

[75] The occurrence reports filed as evidence show that Mr. Eamer was involved in incidents while detained in custody. The following are noted by the Court:

− On April 3, 2007, he got involved in a verbal altercation with an inmate; he is described as becoming very angry and banged his own head “very hard” several times on a cement wall as he was leaving the room; he required minor medical attention − On April 22, 2007 he is reported as calling other inmates “fucking goofs”, “pedophiles” and “diddlers”; he hit his head on a wall causing a laceration when left alone in a room − On November 5, 2011, he was involved in a verbal altercation with an inmate; both were separated ; he punched the wall while going to his room; he sustained contusions to his knuckles ; he explained doing this because he was angry − On August 23, 2014 , he admitted striking an inmate in the face because he had insulted his mother − On December 12, 2014 , he admitted assaulting an inmate; he did so with a newspaper; he explained that he felt stressed and was still trying to have proper medication for his anxiety − On March 9, 2013, he told a staff “Go fuck yourself” when told that he was taking more food than allowed to; when told by nursing staff to refrain from voicing his comment, he stated “I am allowed to voice my comments... I want a fucking transfer”; he then proceeded to his dorm and was observed punching the wall and banged his head off the wall; he later explained “I lost my temper. I punched the wall to the hall to my room and banged my head on the wall” − On March 21, 2013, when told by the social worker that she cannot and will not take the abuse, he became angry and stated “You get right in my face. You are just like my mother. You are putting the blame all on me. I have had it. I want to be discharged to Ottawa. I do not want to be here anymore”; he then left the room punching the door frame and the wall going to his room

7. Provincial Offences Records

[76] The Court was provided with Provincial Offences Records relating to Mr. Eamer. The only relevant incident occurred on October 26, 2007 when he was stopped by the police while driving his mother’s vehicle not having a driver’s licence.

[77] He is described as becoming extremely hostile when served with the offence notice. He was enraged and “drop kicked” his cell phone and then threw numerous items as he stormed away from the scene.

8. Police Incident Reports- No Charges

[78] These reports include information relating to an August 27, 1992 incident when police had received a complaint from Raeanne McDougall’s friends. They reported that she had been assaulted by Mr. Eamer.

[79] The police attended and spoke to Ms. McDougall and Mr. Eamer. There were no injuries and both appeared distressed. Mr. Eamer told the police that he wanted help with his anger problem. He contacted Lanark County Mental Health.

[80] The other documented event is on September 7, 2012 and revolves around the search for Mr. Eamer by the police following his assault on victim Carrie Stewart.

[81] Briefly, the police had been advised by Ms. Stewart that he had left telling her that he wasn’t going back to jail and that he would drive into the back of a trailer. He had consumed a quantity of pills. The police had obtained a warrant for his arrest.

[82] His locked vehicle was later found in a ditch near a trail leading to the woods. He was not at the scene. The police proceeded to search the area. Efforts were made to locate him through family, friends and a media release.

[83] On September 11, 2012, the police received an anonymous complaint that Mr. Eamer was back at Carrie Stewarts’s home where he was later arrested.

9. Ministry of Community Safety and Correctional Service Records

[84] For the most part, the case notes prepared by the various probation officers who have supervised Mr. Eamer are positive. He presented as showing insight and wishing to change.

[85] The Court notes the following entries as examples:

− July 17, 2009: He is stable ; positive about his future; committed to counselling ; working on his issues so as not to reoffend − December 29, 2010: Motivated to attend intensive anger group at the ROH in Ottawa with Dr. Gray and social worker Ms. Woods − January 11, 2011: He understands that on paper he looks very high risk; aware he will go to the penitentiary − September 6, 2012: He seemed very motivated; compliant and reporting as directed; enrolled in programs − May 16, 2013 : Just released from custody; he acknowledges offence and it was wrong ; had no excuses for what he did; knows must monitor himself carefully; as before, he verbalizes a desire to do the work needed to get better; he doesn’t want to hurt anyone; understands he has issues and willing to address same − January 29, 2014: He has now completed the PARS program and loved it; he is doing well; all criminogenic factors put him in active/maintenance stage

[86] The last probation officer who supervised Mr. Eamer in 2013 and 2014 prior to the commission of the predicate offences was Ronald Gendron. In his May 22, 2015 closing summary of his dealings with Mr. Eamer , he states:

“Response to probation had been going very well. Reporting was excellent…PARS completed. He was attending ROH for programming. He had been taking meds- Lithium and reported his moods were so much better. He was also receiving in house counselling from psychology team. He was hungry for programming.

Then it fell apart and he was charged with assault on a woman…. Exact nature of relationships remains unknown. Therefore, probation is not successful. Due to reoffending, he is not suitable for more supervision”

[87] Mr. Eamer’s seeming appreciation of the risk he poses for female partners is also reflected in Dr. Annie Yessine’s December 6, 2006 psychological report found in records filed in this hearing. She had prepared same for the Ontario Parole and Earned Release Board following the sentence of July 24, 2006 for physical and sexual violence against victim W.F..

[88] Dr. Yessine opines that Mr. Eamer was within the medium level risk to re-offend. She notes:

− Mr. Eamer seems to have acquired insight into his behavior patterns from services at the Jewish Family Services − Although he minimizes the severity of the offences, he describes himself as a bully and seems to be aware of the impact his actions had on the victims − He is quoted as saying: • “Nobody deserves that” • “I have no right to treat women like that” • “I wish I could go back and do things differently” • “I want to change…I don’t want to be the way I’ve been” − He attributes his behaviour to his being demanding at times and becoming easily frustrated when not getting his way

[89] The probation records reveal that the issue of Mr. Eamer entering into relationships with female partners was regularly raised by probation officer Ronald Gendron.

[90] On May 16, 2013, Mr. Eamer agreed with the Officer that “he shouldn’t enter a relationship for a while”.

[91] This notion was reinforced following a report on October 8, 2013 that he was in a relationship with Joanne Lauterbauch. Mr. Eamer denied being in a relationship and explained that she was just a friend. He was residing with this individual and her children. While he yelled on occasions, he didn’t yell at them.

[92] The probation officer met with Ms. Lauterbauch who confirmed that they were just friends and she was aware of his past domestic violence. She was warned of the risk of entering a relationship with Mr. Eamer. She stated that she had been in such a relationship and knew the warning signs. She agreed to call the probation officer.

[93] The importance of remaining relationship/ sex free was reviewed with Mr. Eamer on October 30, 2013. He agreed that he was not ready and that doing so would place any woman in a high risk violent situation.

[94] Mr. Eamer maintained not being in a. relationship throughout his supervision by Ronald Gendron from May 2013 to the commission of the offences in June 2014. He had not disclosed his relationship with victim Samantha McKay which started on May 23, 2014.

[95] In regards to other victims and the information conveyed by Mr. Eamer to the probation officers, the Court notes:

− On October 6, 2008 , he stated that he had broken up with Shanna since the relationship was not healthy; there was nothing criminal − On October 16, 2008 , he describes Shanna as being very patient with him − On November 7, 2008, he explains that he ended relationship with Shanna; she didn’t trust him − On October 27, 2010, he advised living with Melissa Looyen and relationship is going well; probation officer met with Ms. Looyen and she stated she had no concerns − On November 29, 2010, he states that relationship with Ms. Looyen is going well

10. Royal Ottawa Mental Health Clinic Records

[96] The Court was provided with Mr. Eamer’s complete clinical record from the Royal Ottawa Mental Health Clinic. These documents show that he has been under Dr. Jonathan Gray’s care since September 2007 at the Anger Disorders Clinic. It is noted that he has participated in individual counselling for anger issues with social worker Vanessa Woods. He joined the Anger Management Group sessions in June 2011.

[97] The record discloses a number of various types of assessments through the years.

[98] In his October 12, 2007 Anger Disorders Clinic Assessment, Dr. Gray states having received the following information from Mr. Eamer:

− His primary problem is anger − He still gets irritation almost every day − His feelings are triggered when not treated with respect and not getting his way − His anger can last for a few hours on occasion − He uses anger to bully and control others − The sexual assault is as a result of his girlfriend being too afraid to say no − He was fired form jobs because of anger outbursts

[99] Social worker Vanessa Wood’s March 29, 2010 Social Work Assessment relates that:

− His behaviour when angry include yelling, breaking inanimate objects, ripping the clothing he is wearing and physical aggression toward others − He describes his anger episodes as having a blow-up in which he blacks out and acts without thinking − Triggers identified by him include not getting his way, lazy and /or stupid people and bad drivers

[100] It is also confirmed as of July 2010, that Mr. Eamer has a sleep disorder which requires treatment as this increases irritability which in turn, impacts on the risk of reoffending violently. Mr. Eamer requires a CPAP machine to manage his sleep apnea.

[101] The more recent assessments stem from the Court’s request for an opinion in regards to Mr. Eamer‘s criminal responsibility for the June 2014 offences. Forensic psychiatrist Dr. Kunjukrishna was tasked to prepare such a report. His opinion is set out in the July 29, 2014 report which concludes:

“I do not believe that Mr. Eamer’s behaviour at the time of the alleged offences would come under the provision of section 16 of the Criminal Code of Canada”

[102] In assessing Mr. Eamer’s criminal responsibility, Dr. Kunjukrishna consulted with a number of other experts who have provided the following insight and opinions:

July 16. 2014 Report of Dr. Booth

− Mr. Eamer told him that he felt depressed from December 2013 to June 2014 − It is unlikely that he meets the section 16 threshold of non-criminally responsible • Current offence is very in keeping with previous offences suggesting acting out in his usual and “rational’ manner • While he says he wasn’t in a relationship with the victim, there is a rational motive for his behaviour, namely, being upset in the context of the dysfunctional dynamics of the relationship • His Antisocial personality explains well his antisocial behaviour in this offence − His self-harm behaviours are well documented; he resorts to these when threats and other manipulative behaviours are not successful

He suspects malingering; Mr. Eamer may be exaggerating his claims of memory difficulties.

July 23, 2014 report of Dr. Gray

− Mr. Eamer told him that they argued because the victim wanted the relationship to become more serious and he wanted it as it was − He “blacked out” and doesn’t remember anything until police arrival; he has no recollection of cutting his throat − He agreed with Dr. Booth’s 2007 diagnoses: • Bipolar affective disorder • Adult ADHD with childhood onset • Antisocial personality disorder given history of conduct disorder as a child as well as adult antisocial behaviours − He is likely criminally responsible; • Offence is very similar to his pattern of offending with 13 previous assault convictions • There would be rational motive of his offence given that there were different views on the goal of the relationship between him and the alleged victim

July 22, 2014 report of Social Worker Lindsay McLean

− He may benefit from a program that focuses on self-esteem so that he doesn’t feel insecure in his relationships − She met with Joanne Lauterbauch as part of her psychosocial assessment; she was provided with the following information by Ms. Lauterbauch: • She did not fear for her or her children’s safety despite Mr. Eamer’s aggressive outbursts • The more she got close to him the more she saw his anger • He kicked her on one occasion • It was mostly property damage • His behaviours were worse when he was not taking his medication • He got jealous if she wanted to go out at night • There were 5 to 10 episodes of him banging his head against the wall from September to October 2013

July 25, 2014 Report of Psychologist Dr. Felicia Agyare-Kwamena

− She reports that the results of Mr. Eamer’s personality assessment should be looked at with caution as she felt he “ over reported so many problems”; he reported more symptoms and problems than seen in most psychiatric patients − He endorsed a MMPI-2 which translates as follows: • Difficulty in maintaining control over impulses • After acting out, such individuals experience guilt and anxiety regarding the consequences of their actions; this anxiety unfortunately took place too late to serve as a potent deterrent • In spite of their conscience pangs and expression of firm intention to change their behaviour, future acting out is quite likely to reoccur in a cyclic pattern • Expression of guilt is short lived • Often vacillate between pitying themselves and blaming others for their difficulties • They resent any demands placed on them while they demand sympathy and attention from others; they get upset easily; they are overly suspicious, angry and unduly sensitive to criticism; they tend to be insecure; manipulative with poor judgment − She states the following:

“In terms of diagnosis, there is a strong component of avoidant personality with antisocial and passive-aggressive as well as self-defeating features to Mr. Eamer’s personality. In terms of prognosis, we do see the cycle of acting out and expression of guilt and not wanting to do it again and he has been through anger management before”.

[103] Mr. Eamer’s clinical record from the ROMHC also includes Dr. Gray’s and social worker Vanessa Woods’s progress notes. The vast majority of these entries describe him in fairly positive terms. The following are noted as examples:

− He appeared to be a motivated individual regarding his anger ( March 29, 2010 ) − He is compliant with appointments and recommended medications; very proactive in his care; on his own , he suggested attendance at the Anger Disorders Group ( letter dated July 6, 2010 sent by Dr. Gray to Mr. Eamer’s lawyer) − He has presented as motivated to participate in treatment to address issues as they relate to anger as well as interested in learning skills in order to better manage anger (letter dated March 29, 2011 sent by Dr. Gray to Mr. Eamer ) − He is very enthusiastic to receive treatment for his anger ( letter dated May 17, 2011 sent by Dr. Gray to Mr. Eamer’s lawyer) − He wants to get help with his anger; he said anger has a major impact on his life; relationship broke with Shanna when he hit her; he is often angry with her ( February 22, 2010) − Relationship with Melissa is good between them at the present ( November 29, 2010 ) − He said his mood has gotten better in last 2 weeks; things are more settled and getting along very well with Melissa; no anger towards her; he has not gotten into any arguments; “…presents to writer as one who continues to be motivated to address anger issues but may still have little insight into his experience of anger…” ( May 16, 2011) − Reports doing very well; mood is stable; anger group has been very helpful; his anger is much better towards his girlfriend Melissa; he has not had any episodes of anger towards her; if he starts to feel somewhat irritated, she just agrees to go back home ( July 5, 2011) − He has not had any major anger outbursts; his mood has been very good ( August 5, 2011) − Said he is doing extremely well , no anger episodes ( July 19, 2013) − States doing well despite major stressors in regards to a complaint filed by Joanne’s ex-husband to CAS; admits to 2 occasions where he blew up and yelled at Joanne ( October 11, 2013) − Reports doing much better; he was exposed to triggers from Joanne but he didn’t take the bait and didn’t become angry at her ; in the past he would have become frustrated and may even have struck her ( November 15, 2013) − States still has anger on occasion but does not take it out on other people (January 22, 2014) − Said he was having sexual relations with his friend Joanne ( February 4, 2014) − He is no longer in a sexual relationship with Joanne; she was volatile and giving him mixed signals; he was proud of himself since he did not get angry but rather ended the relationship ; stated he can change and that he didn’t want to hurt anyone anymore (February 25, 2014)

11. Administration of Sentencing options

[104] Witnesses Lindsay Maahs, Nikki Smith, Tamara Sasto and Petrina Lemieux provided the Court with a roadmap of how the various sentencing options in this matter are administered by authorities. The Court will briefly review this evidence.

Lindsay Maahs

[105] Witness Lindsay Maahs is employed by Correctional Service of Canada (CSC) as a supervisor of parole officers.

[106] CSC is the federal government agency which administers court-imposed sentences of two years or more. It also manages institutions of various security levels and supervises offenders under conditional release to the community. Post-sentence supervision of offenders with long-term supervision orders for up to 10 years is also administered by CSC.

[107] The protection of the public is the paramount consideration for CSC in the correctional process. It does so, in part, by actively encouraging and assisting offenders to become law-abiding citizens, while exercising reasonable, safe, secure and humane control.

[108] The federal offender intake process includes the following:

− Preliminary Assessment Report prepared by a community Parole Officer • Identifies community contacts for the offender such as family, friend or employer − Post-Sentence Community Assessment − Offender Intake Assessment • To determine risk and needs • To establish an initial placement to an institution at the appropriate security level • Analysis of the offender’s criminal history including mental health history − A Correctional Plan developed by a Parole Officer • Described as a blueprint for the offender’s sentence • The offender’s progress is measured against goals set out in this plan • It includes an assessment of the offender’s static risk factors (age, offence history, current offence, harm caused, etc.) and dynamic risk factors (education, employment, marital/family, substance abuse, community functioning, attitude); ratings of low, medium or high will be assessed to these risk factors • Includes an assessment of the offender’s accountability, motivation and responsivity • Includes risk management strategies and recommended intervention • Identifies the objectives for the offender to gain support for reduced security classification, temporary absences, work release and/or conditional release • The Parole Officer will update this plan in consultation with the offender − The Intake Assessment is finalized with the assignment of a security level of minimum, medium or maximum

[109] CSC is responsible for the monitoring of offenders released in the community through the following types of release:

− Temporary absence − Work release − Day parole − Full parole − Statutory release − Long-term supervision orders

[110] A community strategy is completed by a Community Parole Officer. Its purpose is to develop a supervision plan which will be implemented upon release and to identify the means by which the risk can be managed in the community.

[111] Parole Officers present recommendations to the Parole Board of Canada (PBC) regarding the conditional release and detention of offenders following risk assessments, based on ongoing correctional interventions and evaluations.

[112] PBC is responsible for all release grants and denials and establishing special conditions except for a narrow band of authority, in which CSC manages the decision making required on temporary absences and work releases.

[113] The releasing authority may impose any condition that it considers reasonable and necessary in order to protect society and to facilitate the offender’s successful reintegration into society, including:

− Remain in specific geographical areas − Reside in a community-based residential facility or a psychiatric facility − Abstention from alcohol or drugs − Report intimate and/or non-intimate relationship (as oppose to prohibiting relationship which the witness states never having seen as a condition)

[114] The following considerations apply to long-term supervision orders (LTSO):

− All offenders subject to a LTSO are supervised by CSC even offenders serving a sentence in a provincial prison − A CSC community Parole Officer completes the intake and case preparation for offenders serving a provincial jail term • This creates special challenges since CSC is provided with short notice and it is sometimes difficult to gather information from the provincial jail • Witness states that CSC will scramble to develop a plan • This may result in a lack of supervision • CSC has no input as to treatment while in a provincial program • Providing CSC with a memory stick such as Exhibit #4 would address these concerns − Prior to their warrant expiry date, offenders are eligible for all forms of conditional release − Special conditions that may have been imposed on parole or statutory release do not automatically carry over to the long-term supervision; Parole Officers must make recommendation for such conditions to the PBC − Even with a residency condition, CSC does not provide 24-hour supervision − CSC can suspend the Offender’s release on the same basis as offenders on conditional or statutory release for a breach of condition, prevention of a breach or protection of society − The police or Crown Attorney can directly charge an offender with a breach − A LTSO may be reduced or terminated by the PBC upon application by the offender or the Parole Officer

[115] The following considerations apply to dangerous offenders:

− Offenders designated a dangerous offender and sentenced to a determinate sentence and LTSO are supervised in accordance with all other offenders and LTSO − A dangerous offender serving an indeterminate sentence: • Has no statutory right to release and must earn his or her release on an unescorted temporary absence, day parole or full parole • Is not eligible for full parole until he or she has served seven years from the date of arrest; the offender is entitled to a review every five years after serving seven years • Eligible for day parole and unescorted temporary absences the longer of three years and three years prior to the full parole eligibility date • If granted a form of conditional release, the offender is subject to the same supervision standards and policies as other offenders and may be suspended for the same basis (i.e., breach of condition, prevent a breach, protection of society)

Petrina Lemieux

[116] Witness Petrina Lemieux is the Regional Program Manager for CSC. As such, she oversees treatment programs offered to offenders in federal institutions. She described the programs available to offenders while in custody and once released.

[117] Ms. Lemieux testified as to the Integrated Correctional Program Model which is more fully described in Exhibit #9. This model includes three distinct correctional program streams for men offenders, namely, a multi-target program, an Aboriginal-specific multi-target program and a sex offender program, all of which include a maintenance component.

[118] As already described by witness Lindsay Maahs, an offender is assessed upon entering the federal institution. This assessment will serve to identify the program needed to address the offender’s criminal behaviour. The treatment plan is identified in accordance with risk. The assessment includes risk of recidivism, education, spousal assault and mental health. Depending on the level of risk, the offender will be asked to participate in a “high intensity” or “moderate intensity” program.

[119] Participation in such a program is voluntary. Failure to participate will impact on parole eligibility.

[120] The programming is meant to be delivered in an integrated or holistic way. The aim of the program is for the offender to gain an understanding of the interplay among multiple risk factors as well as an understanding of how the same skill sets can be used to effectively manage them. The ultimate purpose is to develop a “self-management program”.

[121] The program is followed by a 12 session maintenance program, the purpose of which is to develop and maintain “management skills”. An offender may be required to repeat the maintenance program.

[122] The witness described that the same type of program is offered in the community upon release. The parole officer will create a community plan for the offender.

[123] She states that a long-term offender who refuses to participate in community programs will be returned to custody by PBC.

[124] She explains that there are certain issues when an offender is received from a provincial jail. CSC has much less details and therefore, the assessment is not as thorough as there is less staff in the community.

[125] The witness testified that inmates have access to a mental health unit which is separate from these programs. Individual counselling is provided through this unit. Offenders can make a request for mental health assistance.

[126] In cross-examination, the witness agrees with the suggestion that mental health resources are taxed in federal institutions. The focus is on more acute offenders suffering from active psychosis for example as oppose to individuals suffering from a mental health condition contributing to criminal conduct.

[127] An individual requiring a CPAP device by reason of sleep apnea would present as a challenge in a federal institution. The witness has heard of such cases but it is uncommon.

Nikki Smith

[128] Witness, Nikki Smith, is a Regional Manager of conditional release programs with the Parole Board of Canada (PBC). She explained that the PBC is an independent administrative tribunal which takes decisions in regards to the conditional release of federal offenders.

[129] The PBC is provided with materials relating to the offender by CSC prior to a review. These will include various types of assessments, Judge’s decision, police reports, facts pertaining to the offences, progress reports and the correctional plan. A case review officer will ensure that the file is complete and provide same to the Board for its consideration.

[130] The witness testified that the basic philosophy of conditional releases is whether the offender is a risk to the public and whether it is in the offender’s best interests to be released and managed in the community. This measure applies to every type of release.

[131] The process is such that the CSC will provide an analysis and recommendations based on the materials. The PBC will in turn view these submissions and the materials. In deciding whether or not to grant a release, the PBC will weigh the risk factors and the steps taken by the offender to mitigate these risks. Both static documents (i.e. historical facts which cannot be changed such as criminal record and history) and dynamic documents (i.e. steps taken by offender while in custody/what can be changed) will be assessed by the Board.

[132] The witness described the various types of release which are available for federal offenders in accordance with the nature of the sentence. Her evidence can be summarized as follows:

Determinate Sentences

− If an offender is serving a determinate sentence: • Will remain in custody for the first third • Is eligible for legislative review during the second third; can apply for day parole • Statutory release following two third − When an offender is released on any type of release, standard and special conditions are imposed; special conditions may be imposed if reasonably necessary to manage risk − An offender may be detained beyond the two third statutory release date if CSC refers to the Board based on the belief that there is an elevated risk that will commit an offence causing death or serious harm − An offender may be released on escorted and unescorted temporary absences for specified periods of time

Indeterminate Sentences

− If an offender is serving an indeterminate sentence: • Fractions are not used in calculating release since the sentence does not end • The full parole eligibility date is 7 years following the date of arrest • Day parole eligibility date is 4 years after the date of arrest • There is a 5 year review following a negative review at the 7 year initial review • Day parole and unescorted temporary absence eligibility occur 3 years before the full parole eligibility date • An offender will be supervised for the rest of his or her life by CSC; the conditions of release continue to be dynamic and to change throughout the offender’s life • If an offender is suspected of or is known to have breached conditions of release or it is necessary to prevent a breach, his or her release may be suspended by CSC; the suspension may then be cancelled or a reference is made to PBC with a recommendation to either cancel the suspension or revoke release

[133] Miss Smith was questioned in regards to conditions imposed on an offender released in the community. These include standard conditions of release as well as any special conditions imposed by PBC.

[134] The standard conditions apply to all offenders and include the following:

− Obey the law − Keep the peace − Remain within territorial boundaries set by the parole officer − Report any interaction with the police

[135] Special conditions may be imposed based on an offender’s risk and the need to manage same in the community. These conditions must be reasonable and necessary. They are dynamic and may be varied based on need. Additional conditions can be added by the PBC.

[136] Examples of such special conditions are:

− Abstaining from alcohol/drugs − Participate in a program/counselling − Not to have contact with certain individuals − Not attend a particular place − Not possess a cell phone − Abide by a curfew

[137] She is questioned in regards to the PBC imposing a special condition whereby an offender would be prohibited from getting involved in an intimate sexual or non-sexual relationship. She indicates never having seen such a condition as oppose to an obligation to report same to a parole supervisor. Her view is that conditions must be necessary and reasonable and that a ban against certain types of relationships would not be reasonable or feasible. She questions whether it could be managed by CSC. She raises the issue of semantics and how to assess the nature of a relationship. For example, when does a friendship become an intimate relationship.

[138] Through the witnesses’ vica voce evidence and Exhibit #6, the Court is provided with the following information in regards to long-term supervision orders (LTSO):

− It is not a custodial sentence so that it cannot be structured so as to effectively convert such an order to a period of custody − It is described as a tool to manage an offender in the community − When an offender commences a LTSO, the PBC imposes special conditions: • These must be reasonable and necessary to manage risk • Residency conditions are imposed for a period of up to 365 days; it may be renewed if reasonable and necessary • As it is not a custodial sentence, house arrest is not a likely condition • The offender is subject to standard conditions − A LTSO is finite and thus, comes to an end − If an offender breaches a condition, the CSC may issue a suspension and apprehension warrant and make a referral to the PBC; the PBC cannot revoke a LTSO; it can only make a recommendation that a charge be laid under section 753.3 of the Criminal Code or cancel the suspension; the police will decide whether or not to proceed with such a charge

[139] The witness raises the issue of “gap” when an offender is sentenced to a provincial jail term and subsequently supervised by way of an LTSO.

[140] The essence of the concern is that the CSC will not have the required information to transmit to the PBC. The CSC will have to gather the information after the offender enters the federal process. The information is not provided to the CSC prior to the said transfer. Therefore, there is a “gap” during which CSC is not able to make recommendations to the PBC.

[141] The points raised in cross-examination include the following:

− While she has seen a condition that an offender is not to associate with children under a certain age, she has never seen a condition not to associate with “women” as a grouping − The conditions of a LTSO are set out by the PBC; while a judge’s comments and recommendations are considered by the Board, it is not bound by same; it is a piece of information considered by the PBC − The special conditions are not static and can be reviewed; some may be added and others removed based on risk; all offenders present some risk − The criteria to revoke a conditional release is whether the offender represents an undue risk − The PBC will recommend the laying of a charge in the context of a LTSO when there is no appropriate program of supervision to adequately protect society from the risk of re-offending and it appears that a breach has occurred − There are administrative challenges when the transition is from the provincial system to the federal system: • There is a gap in the providing of the information • There is no authority for the PBC to craft conditions before the commencement of the LTSO • There is no mechanism for the PBC to impose conditions on the day an offender enters the federal system through an LTSO • It is the transfer to the federal system which triggers the creation of a file • It is a systemic problem between 2 separate levels of government; it is all about administrative processes; it is a federal process; you are dealing with bureaucracy; there is no mechanism to deal with information that would be received before the offender enters the federal system; this is a known issue in Ontario which has been discussed but she is not aware of any changes and/or legislation

Tamara Easto

[142] Tamara Easto is employed with the Ministry of Community Safety and Correctional Services of Ontario. She holds the position of Deputy Superintendent at the Central East Correctional Centre in Lindsay. Through her testimony and Exhibit #3, she provides the Court with insight in regards to risk assessment programming and other features of sentence administration for sentences of less than 2 years.

[143] She explained that following the imposition of such a sentence, an offender will be classified by a Classification Officer. This is done by way of a risk assessment and a review of relevant information which includes criminal history, offence, pre-sentence report, probation files and health history. The appropriate correctional facility in terms of risks and available programs is then identified.

[144] Provincial correctional facilities offer a myriad of programs to offenders. For example, programs offered at Central East in Lindsay include addiction, anger management, life skill counselling and positive parenting.

[145] Algoma in Sault Ste Marie provides an intensive domestic violence program. O.C.I. in Brampton also offers an anger management program which is not, however, directed at domestic violence.

[146] The witness states that a Judge’s recommendation that an offender participate in such programs will be considered but there is no guarantee as the decision rests with the facility. She notes that there are fairly long waiting lists for such programs.

[147] She is questioned in relation to the St. Lawrence Valley Correctional and Treatment Centre in Brockville. It is the only “Schedule 1 Hospital” correctional facility in Ontario. Affiliated with the Royal Ottawa Hospital, it is geared to offenders suffering from significant mental health issues.

[148] The setting is more in the nature of a hospital as health care is the dominant concern. The offenders are in contact with medical staff more than security officers.

[149] There is a significant waiting list of 6 to 8 months. Entry is gained by application with the decision resting with a committee. Again, a Judge’s recommendation is a consideration but not determinative. It is noted that the waiting list is fluid and may vary depending on an offender’s needs.

[150] The witness also discusses the provincial parole eligibility dates which are determined by the length of the offender’s sentence. Her evidence on this point can be summarized as follows:

− There is no day parole − Offenders become eligible after serving one third − If parole is waived or denied, offenders become eligible after serving two thirds − An offender may be kept in custody beyond two thirds due to misconduct and loss of earned remission

[151] Prior to the hearing before the Ontario Parole Board, a Probation and Parole Officer will conduct an investigation in order to prepare a Parole Report. This consists of performing a home visit to meet the proposed sponsor and confirm the existence of the proposed home. It also serves to confirm the relationship with the sponsor. Employment, if any, will also be confirmed.

[152] The Parole Board then makes its decision based on risks, and recommendations from the Parole Report, the police and by the Probation and Parole Officer.

[153] If parole is granted, the offender will serve the remainder of his sentence in the community in the proposed residence and is compelled to report to the police and the Probation and Parole Officer at least twice a month.

[154] The witness explains that there are no “half-way houses” in the provincial parole process. She also states that, unlike the federal system, there is no authority to keep an offender in jail up to the end of the warrant on the basis of undue risk.

[155] If an offender breaches a term of parole, the supervisor may issue a parole warrant for his or her arrest. The offender will be incarcerated and appear before the Parole Board. The options are:

− Revocation of parole − Issue a warning and release to offender − Impose additional conditions

[156] The witness explains that a LTSO does not come into effect until the expiry of the provincial warrant. So that an offender will not be subject of conditions under a LTSO while on parole.

[157] Finally, in examination in-chief, the witness speaks to the question of the transition from a provincial jail term to the federal system in the context of a L.T.S.O.

[158] Specifically, she testifies that the provincial authorities contact their federal counterparts in regards to such an offender on 2 specific points in time, namely:

1. Once the offender’s probable date of release is calculated; this is usually 6 to 8 weeks following entry in the provincial institution.
2. Two (2) weeks prior to the offender’s release from custody

[159] She also makes the point that there is no process allowing for the exchange of information to C.S.C. prior to the offender’s transfer to the federal system. The only material conveyed is the offender’s medical record. This would include details such as medication, treatment and physical/psychiatric assessments if any. She states that they will not release any other record unless the offender consents to disclosure.

[160] In cross-examination, she is questioned in regards to the transfer from the provincial to the federal system. She confirms that federal parole officers could attend the facilities to meet with an inmate prior to release. The province would allow such contacts. Furthermore, while she has never seen this nor heard of this being done, an inmate’s file could be given to CSC prior to the transfer on consent of the inmate.

[161] Finally, the witness confirms that the St. Lawrence Valley Correctional and Treatment Centre is designated as a “Schedule 1 Hospital” as inmates can be compelled to take medication. It is a dual diagnosis hospital which deals with both mental health and criminogenic issues. She is aware that it offers a sexual behaviour program. Again, while a judge’s recommendation will be considered, the ultimate decision as to whether an offender is accepted at this facility rests with a committee.

12. Forensic Psychiatric Evidence

Doctor J. Paul Fedoroff

[162] Doctor J. Paul Fedoroff is a psychiatrist at The Royal Ottawa Mental Health Care Centre (ROH). On consent, he was qualified as an expert in forensic psychiatry. His qualifications are set out in his curriculum vitae filed as Exhibit #10.

[163] Mr. Eamer was referred to Dr. Fedoroff for a psychiatric assessment under section 752.1 of the Criminal Code. His findings are summarized in his February 15, 2016 report marked as Exhibit #11 in which he provides opinions on distinct issues. The Court notes the following:

− “On the basis of the information available the following are psychiatric disorders for which there is at least some evidence according to the DSM-5 criteria: Attention deficit disorder (ADD) (in remission); bipolar disorder, type 11 (in remission); substance abuse (marijuana) (in remission), possible delusional disorder, jealous type (in partial remission); mixed personality disorder; sleep apnea.” (Page 28) − “I agree with the HCR-20 scoring described above, which places Mr. Eamer in the “high risk” category for re-offence. I also scored him on the revised VRAG… On the VRAG-R, I scored him as 30. Men with previous violent offences with this score on the VRAG-R fall into the 94th percentile (higher percentiles are more likely to have reoffended). On the standardization sample, men with scores as high as Mr. Eamer’s were found to violently reoffend at a rate of 76 percent within seven years, rising to 87 percent within 12 years of opportunity.” (page 26) − “Mr. Eamer admits he is “not relationship material”. From a psychiatric perspective, I agree his risk of re-offense is high if he enters a relationship without significant interventions. Fortunately, Mr. Eamer appears to accept that being in an intimate relationship with a woman is not worth the risk.” (page 30) − “…Mr. Eamer’s violent offences have all been directed toward women with whom he was in a romantic relationship. His offences appear to have been motivated by jealousy and fear of abandonment rather than due to sadistic sexual interests. If this is correct, then his risk of violent reoffence is virtually nil if he avoids entering into a romantic relationship. Fortunately, Mr. Eamer appears to agree.” (page 31) “…there is a reasonable prospect that Mr. Eamer could avoid re-offence if he does not enter into an unsupervised romantic relationship, if he is prohibited from contacting any of his former girlfriends, if he continues in treatment with his current psychiatrist Dr. Gray, and if he pursues an affiliation with COSA (or similar support). While I do not think Mr. Eamer has a paraphilic (sexual) disorder, he might benefit from attending one of the out-patient programs offered by the Sexual Behaviours Clinic at the Royal…” (Page 32)

[164] Dr. Fedoroff echoed most of these findings during his testimony. However, he indicated that he now felt that there should be an outright prohibition against him having a romantic relationship with a female as oppose to having an unsupervised romantic relationship as suggested in his report.

[165] The evolution of the accused’s pattern of conduct can be summarized as follows:

− He forms a relationship with a woman − He becomes suspicious and jealous − He becomes controlling − He becomes violent

[166] Fundamental to Dr. Fedoroff’s opinions is the notion that Mr. Eamer’s pattern of physical violence results from intimate romantic relationships with women. His patterns of violence are triggered by such relationships. The risk lies in his attachment to female partners.

[167] The expert refers to “possible delusional disorder – jealous type” and “paranoid delusional disorder” to explain the accused’s conduct while in a relationship. His view is that “borderline personality” is the most dominant personality issue and the most concerning or pervasive.

[168] These mental health disorders translate into fixed false beliefs. The accused thinks there is a plot. He is convinced that his partner is being unfaithful which in turn leads to control and violence. He becomes pathologically jealous.

[169] According to the witness, Mr. Eamer has a very negative view of women in general. He believes that no woman can be trusted.

[170] It is noted that Mr. Eamer is not violent with people he doesn’t know. He assaults people who are close to him. There is no pattern of violence with people other than individuals with whom he is in a romantic relationship.

[171] Dr. Fedoroff is of the view that sexual misconduct is not a significant concern with Mr. Eamer. His sexual misconduct is not motivated by sexual arousal. It is to be seen as an extension of his physical violence and control towards female partners.

[172] Mr. Eamer’s condition is described by the witness as being “lifelong”. It is likely the product of a delusional disorder which is unlikely to change.

[173] The Court is told that the accused presents himself as a good and better than average person who does the right thing. He also believes that his actions are justified when he loses his temper and tends to blame others. At a fundamental level, Mr. Eamer doesn’t think he has problems.

[174] The expert witness opines that while insight, defined as awareness of one’s problem, is important and helpful, it is not essential to change. He remains of the view that the risk associated to Mr. Eamer would be lowered if he stops getting into relationships.

[175] Dr. Fedoroff indicates that the accused told him that he understood that relationships are not for him. However, the expert states that he doesn’t believe the accused actually thinks this. He is unsure whether Mr. Eamer has such insight. In cross-examination, he confirms that the accused told him “I am not relationship material” and thus agrees relationships are a problem.

[176] Notwithstanding Mr. Eamer’s lack of insight, the expert witness maintains his view that the risk of repeated violence can be managed provided he does not enter into a relationship. He must be re-integrated in the community without companionship. He must accept and be compelled to live on his own. It will be easier to monitor him if he is directed not to be in relationships. The control lies in avoiding him getting close to someone. So that in the end, risk management must start with the notion that Mr. Eamer cannot be in a relationship. He should be subject of such a condition.

[177] Dr. Fedoroff confirms having reviewed the materials found in the memory stick filed as Exhibit #4. He is questioned by Crown counsel on the concerns flowing from this evidence. He agrees with most of the concerns raised by counsel. The Court notes the following:

− The lack of insight and beliefs − He presents well and as having insight; as such, he can be deceptive − He has been able to convince partners to lie to the authorities − He has gone through significant treatment which has failed − He has shown to say something and doing something else; − The expert adopts the findings of the July 30, 2013 assessment performed by Detective Sergeant Glenn Sheil wherein he is found to be at high risk of re-offending − The multiplicity of distinct diagnosis makes for more problems − His condition is described as being lifelong − Non-compliance with the taking of medication would increase risk − The use of alcohol and illicit drugs such as marijuana may serve to increase risk as it serves as an inhibitor; alcohol causes irritability − Sleep apnea is a risk factor; lack of sleep causes irritability − His delusional beliefs in regards to his partner being unfaithful can be triggered by little details − Up to now, he is of the belief that he can be in a relationship; he needs to commit otherwise; his lack of insight and delusions impact on his ability to do so − More of the same treatment will likely not be successful − His non-disclosure of relationships to the authorities (i.e. probation officers) − The display of aggression towards individuals other than female partners • Other inmates • His therapist • His mother • Service providers − His rejection of people who want to help him − His attempt to manipulate others through: • Self-harm • Turning people one against the other by stating only part of the facts (splitting) − He shows signs of a dependant personality disorder; he relies on others − He does not deal well with criticism; he shows traits of a narcistic personality disorder; he is very sensitive to what people say − The violence shown as early as in kindergarten in 1981 when he held scissors to the throat of another student; violence towards a female in 1988; his parents having to barricade themselves in a room by reason of his violent behaviour − The fact that he was provided treatment for such conduct as a child which hasn’t worked − The display of aggression while in a structured setting such as the St. Lawrence Treatment Centre − The fact that Dr. Jonathan Gray, who is described as an excellent therapist with particular skills in dealing with difficult clients, has had little success with Mr. Eamer − His attempt to manipulate others such as nurses by exaggerating his condition; the possibility of malingering was raised as a concern by Dr. Booth − The warning by Judges that he would be likely sentenced to significant jail terms if he continued to offend − His statement to Dr. Gray that he knew that next time he would be sentenced as a dangerous offender

[178] In cross-examination, Dr. Fedoroff agrees with counsel’s suggestion that his position remains the same notwithstanding the concerns raised by Crown counsel. His opinion is that there is a reasonable possibility of controlling Mr. Eamer in the community.

[179] It is noted by defence that there are no entries in the accused’s criminal record from 1996 to 2005. This suggests that he did not have a delusional disorder during that period.

[180] The risk to others such as therapists and members of COSA can be managed.

[181] The expert confirms having spoken to Dr. Jonathan Gray about Mr. Eamer. He now agrees with him that the condition should be such that romantic relationships should be prohibited.

[182] The Doctor’s view is that Mr. Eamer requires more than self-reporting of relationships. The risk management must include the following structure:

− Conditions imposed by the Parole Board − Residing in a half-way house − A therapist − COSA and/or CMHA − Parole officer

[183] The focus must be on the awareness that Mr. Eamer is not to be in a relationship.

[184] Dr. Fedoroff opines that not all measures have been tried as of yet since the accused was never compelled to report relationships as part of a Court order.

[185] Mr. Eamer requires a CPAP machine to address his sleeps disorder which is a risk factor since sleep deprivation leads to irritability.

[186] The question of a therapist’s duty to report a breach of a condition by an offender is raised by defence counsel. Dr. Fedoroff is of the view that such a breach must be reported when there is a danger to others. Mr. Eamer being in a relationship should be reported.

[187] Compliance with medication can also be monitored according to Dr. Fedoroff. This can be done through blood work and the administration by way of intra-muscular injections. Mr. Eamer would be required to attend the hospital every two weeks, thus allowing for control.

[188] Counsel also suggests that the civil branch of mental health law could be used as a means to ensure compliance with medication. Reference is made to the Consent Capacity Board which can compel the taking of medication. Dr. Fedoroff states that this process could be considered but that a parole breach is probably an easier route. In any event, Mr. Eamer has been compliant for the most part. He has never indicated that he would not take his medication.

[189] Dr. Fedoroff indicates having seen individuals like Mr. Eamer who have been managed in the community. He has seen success and failure in similar cases. He states that it would be helpful if the accused was compelled to provide his whereabouts while in a half-way house. His risk would be significantly reduced since it would be difficult for him to enter into an intimate relationship. As such the risk is highly manageable in a half-way house setting.

[190] He also agrees with the suggestion that risk decreases as the offender gets older. By age 52, risk will have diminished and coupled with other controls, defence’s proposal is a viable plan form a risk management perspective. With proper structure, Mr. Eamer is ready to go in the community. There is no advantage to more treatment.

[191] Dr. Fedoroff agrees with the plan put forth by Dr. Gray in his November 1, 2016 report filed as Exhibit #12.

[192] While it cannot be guaranteed that COSA would accept the accused in its program, there is a high likelihood it would do so with a recommendation from the ROH.

[193] With these measures, there is, according to Dr. Fedoroff a reasonable possibility of controlling Mr. Eamer’s risk in the community.

[194] In re-examination by Crown counsel, he agrees with the suggestion that Mr. Eamer has issues dealing with authorities.

[195] He also agrees that age may not be a significant consideration in this matter. It is noted that the accused’s criminal history does not follow the usual pattern. He did not offend in his twenties which is the usual active age range. He is described as a statistical anomaly.

[196] The expert makes the point that there is a need for people to watch Mr. Eamer. He cannot be relied on alone. He states that in his experience, half-way houses provide significant control over offenders as to their whereabouts.

[197] He reiterates the point that while he had been under supervision in the past, he was never subject of a condition prohibiting relationships.

[198] In regards to the question of confidentiality, Dr. Fedoroff states that a doctor has a duty to report when there is a risk of harm. He is surprised that Dr. Gray had not reported Mr. Eamer telling him that he had struck his female partner and that he was sleeping in a truck by reason of a conflict with his mother who was acting as a surety. It is also noted that the accused had not attended meetings with Dr. Gray for a period of 6 months.

Doctor Jonathan Gray

[199] Doctor Jonathan Gray is a forensic psychiatrist at the ROH. He was called as an expert witness by defence to present a treatment plan to manage Mr. Eamer’s risk in the community. In fact, Dr. Gray is familiar with the accused having followed him as his primary psychiatrist between 2007 and 2014.

[200] Dr. Gray’s qualifications as an expert witness are not in dispute. His resume was filed as Exhibit #15.

[201] Also filed with the Court as Exhibit #12 is a report dated November 1, 2016 wherein the witness sets out his opinion in regards to the accused’s risk in the community and the measures needed to manage same.

[202] Dr. Gray is of the view that:

“With these measures in place, there is a possibility of control of his risk in the community. In my opinion, the key factor to reduce his risk is to prevent Mr. Eamer from getting into a relationship of any sort with a female partner, whether unsupervised or supervised.”

[203] The measures identified by the expert witness are as follows:

1. As part of a supervision order on release for incarceration, Mr. Eamer should be required to meet with a probation officer on a weekly basis ➢ This would help ensure that Mr. Eamer would not enter into a romantic relationship
2. He should be required to follow-up with a psychiatrist at the Anger Disorders Clinic at the ROH and attend appointments on a monthly basis ➢ Such meetings are essential to monitor his medications
3. He should be prohibited from consuming alcohol or other intoxicating substances; ➢ These substances have a disinhibiting effect on Mr. Eamer.
4. He should be prohibited from any romantic relationships and should not reside with a female ➢ Mr. Eamer’s risk would not be manageable if he is in a romantic relationship no matter how much supervision is involved ➢ He should not reside with a female since he continues to have difficulties in his relationships with similar age females even when there is no physical intimacy
5. He could apply to the Circles of Support and Accountability (COSA) for additional social support ➢ This should not be made an absolute condition because there is uncertainty as to whether he is eligible to participate in COSA without an index sexual offence ➢ If he is accepted, it could be beneficial as suggested by Dr. Fedoroff ➢ He should have male volunteers as oppose to females given the nature of his past offences

[204] In examination in-chief, Dr. Gray maintains his view that provided the noted measures are in place, there is a reasonable possibility of eventual control of risk.

[205] He is of the view that a half-way house setting such as the Ste Anne Residence in Ottawa would mitigate the risk of Mr. Eamer entering into a romantic relationship. He notes that he would be subject to a curfew and requires to sign in and out. He would be asked questions on where he is going when leaving the house.

[206] Once outside of the half-way house, the probation officer could monitor and ensure he does not reside with a female.

[207] He could also be provided with a male volunteer from the Canadian Mental Health Association. However, it is not usual for the CMHA to be involved in cases of LTSO. Dr. Gray would recommend a condition whereby Mr. Eamer would be directed to follow any treatment identified by his psychiatrist.

[208] Dr. Gray does not share Dr. Fedoroff’s view that Mr. Eamer’s risk of re-offending is “relatively nil”. He would qualify it as “low enough that can be managed”. The fundamental concern is emotional ties with females.

[209] He should participate in programs if he is sentenced to custody either at the federal or provincial level. He needs such programs.

[210] Dr. Gray states that he is unsure whether he would report Mr. Eamer telling him he was in a relationship. He does not normally report breaches. This would be problematic in his relationship with the accused.

[211] Compliance with medication can be ensured by attending the hospital for intra-muscular injections.

[212] He notes that it is unusual that Mr. Eamer did not offend while in his twenties. Age may not be a factor with this individual.

[213] Dr. Gray is questioned on a number of points during cross-examination by Crown counsel. The Court notes the following:

− While the bulk of his convictions stem from romantic relationships, Mr. Eamer has shown to be violent with other individuals • His mother • A female roommate with whom he was not romantically involved • Fellow students when he was a child • Social workers at the St. Lawrence Treatment Centre • At work − Dr. Gray is of the view that there is a pattern for all of Mr. Eamer’s romantic relationships; the concern is with him bonding to the partner; while this may happen in other types of relationships, it is a matter of degree; there is a line before he crosses to violence − Mr. Eamer’s condition is lifelong; he cannot be cured but he can be managed; everything is predicated on no romantic relationships − Dr. Gray acknowledges that Mr. Eamer has historically gone through significant treatment and counselling with little improvement − Dr. Gray was not aware that Mr. Eamer had been told by his probation officer Ron Gendron in 2013 to avoid relationships and that he had failed to disclose such relationships − Dr. Gray agrees that, at times, Mr. Eamer did not attend meetings with him: • August to November 2008 • June 2009 to January 2010 • He missed some appointments in 2010 and 2011 − In June 2014, the accused reported no changes to his probation officer in terms of relationships, he was taking his medication and seeing a psychologist; yet, this is the period of time when the predicate offences were taking place − Dr. Gray was not aware that Mr. Eamer was not taking his medication at times when he was being violent with female partners; he explains that he was not monitoring compliance at that time; this can be done through blood tests and injections at the hospital − Dr. Gray testified that he wasn’t aware of incidents when Mr. Eamer had been violent with female partners on day he had met Dr. Ahmed for anger management − He acknowledges not having reported to the police information received by Mr. Eamer and others: • Mr. Eamer disclosing that he had gotten angry and hit Ms. Acres • On July 2, 2010, a female partner disclosed that Mr. Eamer was angry and punched her on the arm • On July 13, 2010, Mr. Eamer disclosed that he had slept in a truck following an argument with his mother who was acting as a surety − Dr. Gray seems to agree with the suggestion that, at times, Mr. Eamer is manipulative: • He tries to justify his actions • He tailors his version of facts • Results of the Paulhus Deception test performed by Dr. Fedoroff would suggest that he is intentionally deceptive − He maintains his position that a half-way house such as Ste Anne would control the risk of the accused entering into relationships; he opines that the last incident with Ms. McKay would not have happened had he been in such a half-way house; the accused’s environment must be such that he cannot develop relationships

[214] In re-examination, Dr. Gray is questioned on the appropriate wording in regards to the prohibition against a relationship. He opines that it should refer to “planned and repeated contacts with a female”. It should cover relationships described as “romantic” and “friendship”.

[215] His position remains that Mr. Eamer is ready to live in the community provided he is in a half-way house setting.

POSITION OF THE PARTIES

Crown

[216] The Crown’s position is that the evidence supports a finding that Mr. Eamer is a dangerous offender under both s. 753(1)(a)(i) and (ii). Furthermore, it is argued that there is no reasonable expectation that a measure other than a sentence of detention in a penitentiary for an indeterminate period would serve to protect the public.

[217] The essence of the Crown’s argument is that public safety requires that Mr. Eamer be supervised for the rest of his life and that this can only be achieved through an indeterminate sentence. A finite sentence would require Mr. Eamer to be released in the community regardless of risk.

[218] In support of its position, Crown counsel relies on the following :

− Mr. Eamer’s psychiatric diagnoses are life long and incurable − Evidence demonstrates lifelong violence − His ability to manipulate and deceive treating and supervising professionals − His ability to manipulate potential victims − His ability to manipulate increases each time he is caught − The plan proposed by Dr. Fedoroff and Gray fails on multiple levels • Mr. Eamer’s diagnoses renders the plan untenable • It requires Mr. Eamer to be honest and forthcoming, which he has not been • It requires extensive counselling and commitment from Mr. Eamer • SLVTC has exhausted its resources and failed with respect to Mr. Eamer • The conditions of the proposed plan are unworkable • The residency component fails as it entails Mr. Eamer having free time in the community leading to more victims and unmanageable risk • Plan turns on the ability of those supervising him to “catch” him • Mr. Eamer’s target group will expand if he is prohibited from intimate relationships with women − Mr. Eamer requires counselling through Corrections Canada • Would provide him with a fresh start • He would be assessed by trained professionals having access to the full record • Would allow for a long-term approach • He would have the onus to satisfy PBC that he is reliable and trustworthy enough to follow parole conditions without endangering the public

[219] Therefore, the Crown’s view is that Mr. Eamer remains a grave and uncontrollable danger to the public through his unmanageable risk to reoffend against women. Only a dangerous offender and indeterminate sentence can effectively manage this risk.

Defence

[220] Defence’s position is that only the criteria for a long-term offender designation have been met by the Crown. Alternatively, if the dangerous offender criteria have been met, the appropriate disposition is a determinate sentence followed by supervision.

[221] The following considerations are raised by defence in support of this position:

− Mr. Eamer’s criminal history • Has never been to the penitentiary • Sentences have , for the most part, been mild • Most of the convictions were prosecuted summarily and not “serious personal injury offences” • There is a 10 year gap in his record from 1996 to 2006 • His victims have not suffered physical injuries beyond bruising, soreness or redness − His history of strong commitment treatment • He has been eager to obtain and accept treatment − He seeks help of his own accord − He has successfully completed programming provided − He has insight into his issues − Professionals have confirm his willingness to seek help − He has expressed remorse throughout his criminal history • With one exception, he has always pled guilty − He has tended to report his relationships even if he was never required to do so through a court order − The evidence of both Dr. Fedoroff and Dr. Gray supports the notion that he can be managed in the community − He has a strong working relationship with Dr. Gray

[222] Defence submits that the Crown’s argument is based on speculation, exaggeration and unsupported by the evidence. The following points are noted:

− The suggestion that he would transfer his violence to another group if prohibited from intimate relationships − The evidence does not disclose a generalized difficulty with women − His response to community supervision has not been a “complete and total failure” − He has not consistently lied, misled and manipulated his probation officers over the past decade − He has not breached every probation or conditional sentence he has been on since 2006 − Many of Mr. Eamer’s victims entered relationships with him knowing of his past, and accordingly made informed decisions − The concept of non-disclosure of relationships as a “tactic” is not born out by the evidence − The fact that he still had difficulty in his relationships does not mean that the treatment has been an abject failure; people can relapse − Mr. Eamer’s violence has actually decreased • Has not been charged with a sexual offence since 2006 • The extent of his assault of Ms. Mackay ( punch to the head, tossing ashtray at her, pushing her against a wall) demonstrates a degree of restraint in and of itself − He has shown to be capable of functioning non-violently in society from 1996 to 2005 − Dr. Gray is not putting Mr. Eamer’s best interests as his patient ahead of public safety; Dr. Gray is honouring his professional obligations as set out by the Royal College of Physicians − It is absurd to suggest that Mr. Eamer would be able to foster a relationship with some unknown women while residing at a half-way house; there is no need for 24/7 supervision; he will be too busy with programming to have time to develop a relationships − A broad enough condition can be imposed so as to allow for control; he would be breached in the event of a dispute as to the import of the condition precluding relationships − The condition can easily be imposed and managed, reducing his risk of offence to “virtually nil”; a condition can be articulated so as to satisfy the recommendation of the forensic psychiatrists

[223] Applying the relevant legal principles, counsel offers the following analysis:

− While Mr. Eamer constitutes a threat to the safety, physical and mental well-being of others, he does not constitute a threat to anyone’s life. − The Crown has not established that there will be a failure in the future to restrain his behaviour; this is premised, in good part, on the notion that he is virtually no risk if he avoids romantic relationships. − The Crown has failed to prove that a substantial degree of indifference on his part respecting the foreseeable consequences to others of his behaviour; reference is made to the following: • His offences are motivated by jealousy and fear of abandonment and not the result of a psychopathy • There is nothing sadistic • He is the one who has suffered the most • He has caused minimal injury to others and victims do not appear to be terribly affected by his conduct − The criteria for a long term offender designation have been met and are far more appropriate in light of the actual gravity of the offences, his criminal record and the fact that he continues to immerse himself in treatment. − If the Court designated Mr. Eamer as a dangerous offender, it is argued that the following factors favor a determinate sentence or, the alternative, a determinate sentence followed by a long-term supervision: ➢ The exercise by the Court of its discretion to impose a determinate sentence in light of : • He never caused any bodily harm • He has never been to the penitentiary and therefore has never benefited from the rehabilitative programs offered in the federal system ➢ It is reasonably expected that he will not commit murder; he’s never been convicted of causing bodily harm ➢ It is reasonably expected that he will not commit a serious personal injury offence • Other than the index offenses, he has only two other offences which qualify as such • He did not commit such offences between 2005 and 2014 • Those serious personal injury offences committed by him were on the lower end of the spectrum ➢ With relatively low-end serious personal injury offences, there are realistic possibilities available to the Court • Abstaining from a romantic relationship is no more difficult than a drug addict abstaining from their drug of choice • Mr. Eamer ‘s unique situation demands unique consideration; a condition, even if “facile” as suggested by the Crown , is easily imposed and easily managed • While not necessary, Mr. Eamer agrees that he should be prohibited from entering into a romantic relationship with a female

THE LAW

[224] The statutory provisions dealing with a dangerous offender application are found in Part XXIV of the Criminal Code.

[225] The sections which are relevant to the present application are:

− Section 752(a) 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

− Section 753(1) On application made under this part after an assessment report is filed under subsection 752.1(2), the Court shall find the offender to be a dangerous offender if it is satisfied (a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing (i) A pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour (ii) A pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or

− Section 753(4) If the Court finds an offender to be a dangerous offender, it shall (a) Impose a sentence of detention in a penitentiary for an indeterminate period (b) Impose a sentence for the offence for which the offender has been convicted – which must be a minimum punishment of imprisonment for a term of two years – and order that the offender be subject to long-term supervision for a period that does not exceed 10 years, or (c) Impose a sentence for the offence for which the offender has been convicted

− Section 753(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

− Section 753(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

− Section 753.1(1) The Court may on application 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

− Section 753.1(2) (b) the court shall be satisfied that there is a substantial risk that the offender will reoffend if… (b)The offender (i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender’s causing death or injury to other persons or inflicting severe psychological damage on other persons, or

− Section 753.1(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

− Section 753.1(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

[226] In applying these statutory provisions, the Court will be guided by the following principles:

➢ Dangerous offender proceedings form part of the sentencing process. As such, the Court must be guided by the fundamental purpose and principles contained in sections 718 to 718.2 of the Criminal Code. However, the primary purpose of the dangerous offender regime is the protection of the public. In a given case, the nature of the crime and the circumstances of the offender call for the elevation of the goal of protection of the public over other objectives including rehabilitation, deterrence and retribution.

• R. v. Lyons 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309
• R. v. Johnson 2003 SCC 46, [2003] 2 S.C.R. 357

➢ There has been an important shift in the way in which the legislation works when one considers the changes in 1977, 1997 and 2008. The trial judge’s discretion has narrowed in one sense, the judge no longer having discretion not to find a person a dangerous offender who fits the definition. But the discretion has been broadened in that the judge has wider sentencing options for a person who does come within the dangerous offender definition. These changes have an impact on the interpretation of the dangerous offender definition. In particular, the possibility of successful treatment is of limited application in determining whether the person is a dangerous offender. The possibility of successful treatment is significant in choosing the appropriate disposition

• R. v. Szostak 2014 ONCA 15

➢ The Crown bears the burden of establishing beyond a reasonable doubt that the accused meets the dangerous offender criteria

• R. v. Currie 1997 CanLII 347 (SCC), [1997] 2 S.C.R. 260

➢ The Crown is not required to prove beyond a reasonable doubt that the respondent will re-offend. Such a standard would be impossible to meet. What is required is proof beyond a reasonable doubt that there is a “likelihood” that the accused will cause or inflict harm

• R. v. Currie op. cit.

➢ A dangerous offender designation is not restricted to offenders who commit the gravest of crimes. There is no requirement under the Criminal Code that the serious personal injury offence required to trigger a dangerous offender application meet a specified threshold of seriousness

• R. v. Solano 2014 ONCA 185, [2014] O.J. No. 1118
• R. v. M.B.H. (2004), 2004 CanLII 14199 (ON CA), 70 O.R. (3d) 257

➢ The pattern of repetitive behaviour that includes the predicate offence has to contain enough of the same elements of unrestrained dangerous conduct to be able to predict that the offender will likely offend in the same way in the future. This will ensure that the level of gravity of the behaviour is the same, so that the concern that the last straw could be a much more minor infraction could not result in a dangerous offender designation. However, the offences need not be the same in every detail. That would unduly restrict the application of the section

• R. v. Hogg 2011 ONCA 840, [2011] O.J. No. 5963

➢ In order to achieve the goal of protection of the public under the dangerous offender and long-term offender provisions, there must be evidence of treatability that is more than an expression of hope and that indicates that the specific offender can be treated within a definite period of time. The evidence of treatability must be specific to the offender

• R. v. McCallum 2005 CanLII 8674 (ON CA), [2005] O.J. No. 1178

DISCUSSION

[227] Having considered all of the circumstances and the relevant principles, the Court finds that the Crown has proven, beyond a reasonable doubt, that Jason Eamer is a dangerous offender. The evidence establishes all of the constituent elements for such a designation. Thus, the Court is statutorily bound to find him to be a dangerous offender.

[228] Firstly, Mr. Eamer plead guilty and was accordingly convicted of serious personal injury offences. This element is conceded by defence and supported by the evidence. He was convicted of criminal harassment ( s.264(2) ), forcible confinement (s. 279(2) ), assault with a weapon ( s. 267(a) ) and possession of a weapon ( s.88 ), all of which may attract a sentence for a term not exceeding ten years.

[229] The facts reveal the use or attempted use of violence against the victim Samantha Mackay in the commission of these offences. Furthermore, the conduct was such that it likely endangered her safety and was likely to inflict severe psychological damage upon her. The relevant facts on this issue include the following:

− Throwing a thermos at her and striking her thigh − Punches in the back of her head − Pushing her against the wall − Spitting in her face and slapping her − Preventing her from leaving − Forcing her not to wear any clothing while at his residence − Striking his own head with a hammer causing a bloody injury in front of her − Cutting his own throat with a knife in front of her − The psychological impact of all of this conduct on Ms. Mackay is set out in her July 21, 2015 victim impact statement

[230] Therefore, the Court finds that Jason Eamer has been convicted of serious personal injury offences.

[231] The evidence also establishes beyond a reasonable doubt that Mr. Eamer likely constitutes a threat to life, safety or physical or mental well-being of other persons. The Crown has proven beyond a reasonable doubt that it is more probable than not that he will continue to re-offend violently and as such he poses a significant threat to others. This conclusion is based on a collective view of all of the evidence adduced in this hearing.

[232] Specifically, the Court is convinced that the evidence supports the measures set out in both sections 753 (1) (a) (i) and 753 (1) (a) (ii). It allows for an objective and reasoned prediction that he will likely offend in the same way in the future.

[233] The evidence establishes:

− A pattern of repetitive behaviour by the offender, of which the offence for which he has been convicted forms a part (s.753 (1) (a) (i)) − A pattern of persistent aggressive behaviour by the offender of which the offence for which he has been convicted forms a part (s.753 (1) (a) (ii))

[234] These findings are based on the following evidence:

i) The evidentiary record reveals that he has been violent with 10 separate female victims, namely : − Raeanne McDougall ( August 1992) − Krista Allen ( Unknown when ) − W.F. ( April 24, 2005 to May 4, 2005) − K.S.-Q. ( October 7, 2005) − Julie Carruthers ( March 2006 to May 2006) − Shanna Acres ( June 5, 2010) − Melissa Looyen ( November 22, 2010 to December 1, 2010 and September 7, 2011 to September 11, 2011 ) − Carrie Stewart ( June 1, 2012 to September 6, 2012) − Joanne Lauterbauch ( October 2013 to February 2014) − Samantha Mackay ( May 23, 2014 to June 28, 2014)

ii) He was in a relationship with these 10 female victims at the time of the assaults

iii) The violence inflicted on these 10 female victims was similar in nature and degree of violence • Use of objects ( S. Mackay, W.F., M. Looyen, C. Stewart, J. Carruthers) • Striking victim’s head (S. Mackay, S. Acres, M. Looyen, C. Stewart, J. Carruthers.) • Slapping ( S. Mackay, W.F. , M. Looyen, C. Stewart) • Physically confine and control ( S. Mackay, W.F., M. Looyen, K.S.-Q., S. Acres, C. Stewart, S. Carruthers ) • Sexual violence ( S. Mackay, by forcing her to remain naked, W.F., K.S.-Q., C. Stewart ) • Kicking ( W.F., C. Stewart, J. Lauterbauch) • Use of threatening and abusive language ( S. Mackay, W.F., K. Allen, K.S.-Q., S. Acres, M. Looyen, C. Stewart ) • Violence resulting in physical injuries ( S. Mackay, W.F., S. Acres, M. Looyen, C. Stewart) • Violence resulting in emotional/psychological injuries ( S. Mackay, W.F., C. Stewart) • Self-inflicted violence in front of victims ( S. Mackay, K.S.-Q., C. Stewart, J. Lautherbauch ) • Forbid victim from speaking/ associate with family/ friends ( S. Mackay, W.F., C. Stewart, J. Carruthers)

iv) He uses violence and threat of violence as a means to control and manipulate victims: • Victim telling him she was leaving and terminating relationship • As an expression of his jealousy • For sex

v) He instills fear in the victims through violence and threats of violence

[235] The existence of a pattern of repetitive behavior and persistent aggressive behaviour is supported by the expert forensic psychiatric evidence of Doctor Fedoroff and Doctor Gray. This pattern is described as follows:

− He forms a relationship with a woman − He becomes suspicious and jealous − He becomes controlling − He becomes violent

[236] The offences committed against the victim Samantha Mackay are therefore seen as a sequence in a continuous series of violent acts against females with whom he was in a relationship. There is a clear connection between the predicate offences and his history of violence. They contain enough of the same elements to form part of a pattern of repetitive conduct (s. 753(1) (a) (i)) and persistent aggressive behaviour (s. 753(1) (a) (ii)).

[237] The evidence also discloses that Jason Eamer has failed to restrain his violent behaviours as understood under section 753(1)(a)(i). This evidence establishes, beyond a reasonable doubt, a strong probability of future inability to restrain his violent behaviours. The Court notes the following evidence:

− The long-standing history of violent behaviours directed at female partners − The number and repetitive nature of the violence − The striking similarities of this violence − He has convinced partners to lie to the authorities − His long-standing assertion of insight and understanding of the harm caused to the victims following the incidents − His repeated acknowledgment that he cannot enter into relationships − He was subjected to a significant amount of counselling and therapy directed at his violent conduct − He appeared before different Judges on a number of occasions and was warned of the potential consequences for him of his continued violent actions − He was placed on probation; he reoffended while on probation − He was sentenced to fairly lengthy periods of custody − For the most part, he is described in fairly positive terms by the individuals who provide him with counselling and therapy − He has, at times, misled his probation officers and psychiatrist in regards to presence of violence in his relationships and whether he was in a relationship − The level of self-inflicted harm in front of victims is indicative of an inability to self-control − His acknowledgment to Dr. Gray prior to the offences against Samantha Mackay that he was subject to being sentenced as a dangerous offender if he reoffended

[238] These factors , for the most part, also serve to support the notion that Jason Eamer has shown a substantial degree of indifference respecting the reasonably foreseeable consequences to other persons of his behaviour as articulated in section 753 (1)(a)(ii). As stated by Justice McWatt in R.v. Wong 2016 ONSC 6362, [2016] O.J. no 5973 at paragraph 224:

“A demonstration of indifference which is limited to the time at which the offence was committed is not sufficient. A broader examination of the offender’s personality is required in order to determine if the offender lacks compassion towards others. The Crown must demonstrate that the offender has a conscious, but uncaring awareness of causing harm to others and that this has occurred over a long period, involving frequent acts with significant consequences.”

[239] The “substantial degree of indifference” lies in his clear recognition and understanding of the significant risks he poses for potential victims. The following evidence is noted as examples of this understanding:

− On August 27, 1992 , he told police that he wanted help with his anger problem − In 1994, he self-referred to anger management in Brockville − The July 22, 2006, pre-sentence report states that he recognizes that his demanding nature and insistence in having his own way intimidated and frightened past girlfriends − On January 19, 2007, he told the Court that he knew the things he had done are wrong and wants help to change − The April 4, 2012 discharge summary from St. Lawrence indicates that he has shown a good understanding of risk factors such as drugs, trust, jealousy, attachment − The notes prepared by the probation officers include: • He understands that on paper he looks very high risk ( January 11, 2011) • He doesn’t want to hurt anyone; knows must monitor himself carefully ( May 16, 2013) • He agrees that he shouldn’t enter a relationship for a while ( May 16, 2013) • He agreed that he was not ready for a relationship and that doing so would place any woman in a high risk violent situation ( October 30, 2013) • He has acknowledged on a number of occasions that he is not “relationship material”

[240] And yet, knowing that he poses a significant risk to female partners, he has continued to enter into such relationships and thereby placing others at risks of both physical and emotional harm.

[241] His significant indifference further lies in the substance of his violence towards victims. This violence has already been described in these reasons and include:

− Repeated punches to victim’s head − Striking back of one victim 10 times with a cord − Requesting sex from one victim on demand 5 times a day and stating “ you do not say no to me”; beating her dog when she refused on one occasion; leaving handprints by slapping her buttocks during sex − Picking a victim of the floor by her hair after she had fallen while being punched − Grabbing a victim by the hair and punching her in the face − Head butting a victim who refused to have sex

[242] Therefore, the Court finds that the evidence establishes the elements set out in sections 753(1)(a)(i) and 753(1)(a)(ii). The Court is satisfied beyond a reasonable doubt, that there is a high probability that Mr. Eamer will re-offend violently.

[243] This finding is further supported by other evidence which does not, strictly speaking, bear on the pattern of repetitive behaviour and persistent aggressive behaviour.

[244] Firstly, the evidence shows that Mr. Eamer was violent with others at a very young age. The 1981 kindergarten notes indicated that he posed a threat of potential danger to his peers. There are documented incidents of violence such as placing scissors to a student’s throat and pushing a student off a stage. He struck classmates with various objects. Reference is made on January 28, 1988 to him hitting a girl. Counselling is recommended to defuse his “fierce anger, temper tantrums and violence”.

[245] The July 22, 2006, pre-sentence report describes him as “controlling, demanding and impulsive” as a child. He insisted on having his own way and threw temper tantrums when his wants were denied.

[246] There were episodes when family members barricaded themselves in their bedrooms to avoid his angry outburst. He is said to have “terrorized” family members through these outbursts.

[247] The same pre-sentence report indicates that his former girlfriends reported:

− Abusive behaviours of varying degrees − Verbal and mental abuse − Intimidation through displays of rage − Incidences of physical abuse − He was possessive and jealous − His anger escalates quickly.

[248] His violence has also been directed at :

− His parents − Social worker − Police officer − Partner’s children − Inmates − A dog − In the workplace

[249] The evidentiary record reveals a number of assessments which support the notion that Mr. Eamer poses a significant risk of harm to others. The following reports are noted:

− “…presents a high risk for future violence towards any woman he is involved in a relationship with …at imminent risk for future violence towards future partners….” -(July 30, 2013 threat assessment report of Detective Sergeant Glenn Sheil) − He is described being at medium- high risk category for sexual recidivism ( 2007 psychosexual risk assessment of Dr. Mike Saelhof) − “… difficulty in maintaining control over impulses… after acting out, , such individuals experience guilt and anxiety regarding the consequences of their actions; this anxiety unfortunately took place too late to serve as a potent deterrent… in spite of their conscience pangs and expression of firm intention to change their behaviour, future acting out is quite likely to reoccur in a cyclic pattern… expression of guilt is short lived…” ( July 25, 2004 report of psychologist Dr. Felicia Agyare-Kwamena) − “ Current offence is very in keeping with previous offences suggesting acting out in his usual and “rational” manner…while he says he wasn’t in a relationship with the victim, there is a rational motive for his behaviour , namely being upset in the context the dysfunctional dynamics of the relationship… his antisocial personality explains well his antisocial behaviour in this offence.” (July 16, 2004 report of Dr.Booth) − “…without appropriate treatment of his ADHD using Strattera, he poses a significant risk to the safety of others. However with treatment this risk is manageable in the community”. ( August 15, 2007 report of Dr. Booth) − “Then it fell apart and he was charged with assault on a woman… Exact nature of relationships remains unknown. Therefore, probation is not successful. Due to reoffending, he is not suitable for more supervision.” ( May 22, 2015 closing summary of probation officer Ronald Gendron) − “I agree with the HCR-20 scoring described above, which places Mr. Eamer in the “high risk “category for re-offence… On the standardization sample, men with scores as high as Mr. Eamer’s were found to violently reoffend at a rate of 76 percent within seven years, rising to 87 percent within 12 years of opportunity…From a psychiatric perspective, I agree his risk of re-offense is high if he enters a relationship without significant interventions. Fortunately, Mr. Eamer appears to accept that being in an intimate relationship with a woman is not without the risk” ( February 15, 2016 report of Forensic Psychiatrist Doctor J. Paul Fedoroff) ( * as already noted, Dr. Federoff testified that he now felt that Mr. Eamer should be prohibited from having a romantic relationship as oppose having an unsupervised romantic relationship as suggested in his report*) “ In my opinion , the key factor to reduce his risk is to prevent Mr. Eamer from getting into a relationship of any sort with a female partner, whether unsupervised or supervised” ( November 1, 2016 report of Forensic Psychiatrist Dr. Jonathan Gray)

[250] The Court is mindful of and has considered the opinions of Dr. Federoff and Dr. Gray on the question of whether Mr. Eamer should be designated as a dangerous offender. Their view is that while he poses a risk, same can be managed through a number of measures including a prohibition from entering into any “romantic relationships.”

[251] This expert evidence does not raise a reasonable doubt in the Court’s mind on the core issue of Mr. Eamer’s high probability of reoffending violently in the future. The notion that Mr. Eamer is at high risk of reoffending as testified to by Dr. Federoff but that such risk can be managed in the community , while a relevant consideration, is not a significant consideration on the issue of the designation or not as a dangerous offender.

[252] The question of the consideration to be given by the Court to an offender’s management prospects prior to designation was addressed by the Ontario Court of Appeal in R.v. Szostak 2014 ONCA 15, [2014] O.J no 95. In discussing the July 2, 2008 legislative change in the dangerous offender provisions, Justice Rosenberg states the following at paragraph 36:

“36. To understand the issues in this appeal, it is necessary to briefly consider the 1977 and 1997 legislative schemes. As I will show, there has been an important shift in the way in which the legislation works. The trial judge’s discretion has narrowed in one sense, the judge no longer having discretion not to find a person a dangerous offender who fits the definition. But the discretion has been broadened in that the judge has wider sentencing options for a person who does come within the dangerous offender definition. In my view, these changes have an impact on the interpretation of the dangerous offender definition. In particular, it is my view that the possibility of successful treatment is of limited application in determining whether the person is a dangerous offender. The possibility of successful treatment is significant in choosing the appropriate disposition.”

[253] Therefore, the measures identified by Dr. Gray as a means to control Mr. Eamer in the community are of limited application on whether he is a dangerous offender. The significance of these will be assessed in deciding what is the appropriate disposition.

[254] Mr. Eamer having been designated as a dangerous offender, the Court’s task is to identify the appropriate disposition.

[255] The Court must impose a sentence in a penitentiary for an indeterminate period unless satisfied by the evidence that there is a reasonable expectation that a lesser measure will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. These lesser measures are a minimum punishment of imprisonment of two years followed by a long-term supervision order not exceeding then years or impose a conventional sentence for the offences.

[256] Looking first at the history leading to the commission of the predicate offences in June 2014, the inevitable conclusion is that Mr. Eamer’s violent conduct has not been contained and controlled to an acceptable level. The unfortunate reality is that he has continuously re-offended violently notwithstanding the measures taken to manage the risk he poses while in the community. These measures have already been noted and include:

− Ongoing counselling and therapy for his anger − Psychiatric treatment by Dr. Gray from 2007 to 2014 during which he is described in positive terms − Dr. Gray’s evidence that Mr. Eamer has complied with the taking of medication − Probation orders − A conditional sentence − Periods of custody − Three jail terms, served at the St. Lawrence Valley Correctional and Treatment Centre − Subjected to a number of various assessments − Being diagnosed with specific mental health issues − Being regularly reminded by his last probation officer Ronald Gendron not to enter into any relationships

[257] So that history does not favor a finding that there is a reasonable expectation that a disposition other than an indeterminate sentence will adequately protect the public from Mr. Eamer’s violent conduct.

[258] The question becomes whether the evidence establishes such a reasonable expectation from a “looking-forward” perspective. For the most part, this issue revolves around the evidence of Dr. Fedoroff and Dr. Gray.

[259] The Court is of the view that this prospective or “forward-looking” expert evidence, when analyzed in the context of the whole of the evidentiary record, does not allow for a finding that a lesser measure will adequately protect the public from Mr. Eamer. It does not rise to the level of the “reasonable expectation” threshold set out in section 753(4.1).

[260] Of concern to the Court is the fact that the proposed treatment plan is framed as a “possible” means of controlling the risk associated to Mr. Eamer in the community.

[261] Dr. Gray’s conclusion in his November 1, 2016 report filed as Exhibit #12 is as follows:

“With these measures in place, there is a possibility of control of his risk in the community “.

[262] He re-affirmed this conclusion in his testimony. When asked by counsel if he adopted his conclusion that “there is a possibility”, he responded “yes” if “those conditions are in place”. He went on to state that the risk would be low enough to be manageable.

[263] Dr. Fedoroff’s opinion is also framed as “a reasonable possibility of controlling Mr. Eamer’s risk in the community.”

[264] The last part of his February 15, 2016 report ( Exhibit #11) is based on the following question:

“3. Is there a reasonable possibility of eventual control of the risk in the community?”

[265] This question is raised by Dr. Federoff after he notes:

“… it is my understanding that before a designation of Dangerous Offender can be considered, the designation of Long Term Offender must be considered” (page 31).

[266] As explained by the Ontario Court of Appeal, in R.v. Szostak, op.cit., this requirement which had been articulated by the Supreme Court of Canada in R.v. Johnson 2003 SCC 46, [2003] 2 S.C.R.357, was removed by the July 2, 2008 legislative changes.

[267] The concept of “reasonable possibility” remains significant to a finding that an offender is a long-term offender. However, it is not the proper measure in regards to the proper disposition once an offender is found to be a dangerous offender. As already noted, the measure is “reasonable expectation” and not “reasonable possibility”.

[268] The distinction between a “reasonable expectation” and a “reasonable possibility” is more than semantics. It goes to substance of the legal standard or measure. The following distinction which was approved by a number of appellate Courts in Canada was articulated in R. v. J.M. SKPC 109 at paragraph 114:

“114. Both of these phrases really invoke an assessment of the offender’s risk to the public. They ask a judge to consider if the offender’s risk in the community can be lowered to an acceptable level by a lesser punishment. The only difference is under the old regime the question was one of “reasonable possibility” whereas under the new amendments the test is one of “reasonable expectation”. The difference in wording, while subtle, is significant. A “reasonable possibility” connotes a belief that something may happen while a “reasonable expectation” speaks to a belief that something will happen. The standard for finding a reasonable expectation then is somewhat higher but the factors to consider under both tests would essentially be the same.”

[269] This passage was approved by the following appellate Courts:

− R.v. Osborne 2014 MBCA 73, [2014] M.J. no 216 − R.v. Toutsaint [2015] S.J no 609 − R.v. D.J.S. [2015] BCCA 111 − R.v. Ominayak 2012 ABCA 337

[270] The Ontario Court of Appeal has not yet ruled on this issue but did state the following in R.v. M.L. [2015] O.J no 3447 at paragraphs 22 to 24:

“22. I note that the “reasonable possibility” standard was used at the dangerous offender hearing by agreement of the parties. The Criminal Code was amended in 2008…

23. This Court has not determined whether there is any meaningful distinction between the reasonable possibility and reasonable expectation standards. However several Courts have held that the “reasonable expectation “standard is more exacting then the former “reasonable possibility” threshold…

24. The difference between the standards was not argued and it is not necessary to determine the matter for purposes of this appeal. The appellant did not argue that he had been disadvantaged by application of the reasonable possibility standard and there is no reason to assume that he was in fact disadvantaged. On the contrary, it is arguable that the reasonable expectation standard is more difficult to meet than the reasonable possibility standard…

[271] Justice Hill suggested the following in R.v.D.B. 2015 ONSC 5900, [2015] O.J. no 5138, at paragraph 194:

“194… given the priority for public safety animating Part XXIV determinations, I am prepared to look to satisfaction on a balance of probability in deciding s. 753(4.1) “expectation” issue…

[272] The end result is that the Court is told through the prospective or “forward-looking” expert forensic psychiatric evidence that there is a “reasonable possibility” of controlling Mr. Eamer in the community. While this may serve as a basis for a finding of “long-term offender” it does not rise to the standard of “reasonable expectation” which is seen by the Court as higher and more exacting. At a minimum, it requires to be more probable then not as suggested by Justice Hill.

[273] Irrespective of how the prospective forensic psychiatric evidence is framed, a review of the proposed treatment plan leads the Court to the conclusion that the terms set out therein do not provide the level of probable control required by section 753 (4.1). They do not collectively rise to the level of the “reasonable expectation” standard.

[274] This conclusion is based on the following considerations of the 5 prospective measures noted in Dr. Gray’s November 1, 2016 Intensive Plan of Treatment ( Exhibit #12):

1. As part of a supervision order on release for incarceration, Mr. Eamer should be required to meet with a probation officer on a weekly basis.

[275] Dr. Gray’s opines that:

“Weekly contact with a probation officer would help ensure that no romantic relationship, supervise or unsupervised, would develop with Mr. Eamer…”

[276] As a general proposition, probation has shown not to be an efficient means of controlling Mr. Eamer. He has been on probation for the most part since July 2006.

[277] The record shows that he has failed to comply with terms of probation orders. He has repeatedly committed crimes of violence against female partners while on probation for similar offences.

[278] The end result is that probation and reporting to probation officers have had very little impact on Mr. Eamer. In fact, the evidence reveals that he has misled his last probation officer, Ronald Gendron , on the core issue of relationships with female partners.

[279] As already noted, he was told by him not to enter into a relationship. Mr. Eamer agreed and this was fairly closely monitored by the officer.

[280] As we know, Mr. Eamer failed to disclose too separate relationships while being supervised and reporting to the said probation officer. He also misled him as to the true nature of his relationship with Joanne Lautherbauch once this was uncovered by the officer. Both partners were subjected to violence.

[281] Dr. Gray acknowledged in his testimony that he was not aware that Mr. Eamer had been told by his probation officer in 2013 to avoid relationships and that he had failed to disclose such relationships.

[282] Mr.Eamer cannot be relied upon as a means of controlling, through disclosure by him, of his relationships. This finding is supported by the evidence of both Dr. Federoff and Dr. Gray. He is described as manipulative and deceptive. The Court notes the following from Dr. Federoff’s evidence:

− He can be deceptive − Has been able to convince partners to lie to the authorities − Has shown to say something and doing something else − He attempts to manipulate others − The possibility of malingering when examined by Dr. Booth in regards to the predicate offences

[283] Therefore, the Court is of the view that weekly reporting to a probation or parole officer would not, on balance, help ensure that no romantic relationship, supervised or unsupervised would develop with Mr. Eamer.

2. Mr. Eamer should be required to follow-up with a psychiatrist at the Anger Disorders Clinic at the Royal Ottawa Mental Health Centre, and attend appointments on a monthly basis.

[284] The harsh reality is that, thus far, all attempts at curtailing Mr. Eamer’s violent behaviours have proven unsuccessful. As stated by Dr. Federoff , “… more of the same treatment will likely not be successful”.

[285] As already noted in these reasons, Mr. Eamer has gone through significant treatment, counselling and therapy with very limited, if any success. The true measure of this failure is that he has continued to re-offend violently notwithstanding this continuous treatment.

[286] Mr. Eamer’s extensive treatment includes being cared by Dr. Gray and others at the Anger Disorders Clinic from 2007 to 2014.

[287] It is significant and concerning that Dr. Gray has had very little success in treating Mr. Eamer. Dr. Federoff notes that Dr. Gray is an excellent therapist with particular skills in dealing with difficult clients.

[288] It is therefore difficult for the Court to accept that continued follow-ups with a psychiatrist at the Anger disorders Clinic would, on balance, serve to help manage Mr. Eamer’s risk in the community.

[289] The Court is also concerned with the suggestion that monthly attendance at the Royal Ottawa Hospital would allow for the monitoring of Mr. Eamer’s medication and in turn, provide a measure of control of the risk.

[290] The unequivocal evidence of Dr. Gray is that compliance with the taking of medication has never been an issue. To the contrary, he has voiced throughout his dealings with Mr. Eamer that he has been very compliant.

[291] In a letter dated July 6, 2010 directed to Mr. Eamer’s legal counsel, Dr. Gray states that Mr. Eamer is compliant with appointments and recommended medications.

[292] Dr. Gray expresses the same opinion in his November 1, 2016 report wherein he states:

− He was generally compliant with his medications and motivated to take them − There was only a short period in July 2009 when he admitted to not taking his medications consistently , but he shortly thereafter went back to taking them more consistently after some psychoeducation and counselling − He is on a number psychotropic medication with which , he is very compliant − He reported that Lithium, a more recent addition to his drug regimen in 2013 while incarcerated has greatly helped him control his anger − His current drug regimen is sufficient to meet his needs − His medications have sometimes needed adjustments because of fluctuations in his mood

[293] Dr. Federoff echoes this view in his testimony. He states that Mr. Eamer has been compliant with medication for the most part.

[294] So that on balance, the evidence establishes that Mr. Eamer has complied with the taking of medication as a means of controlling his violent behaviours as directed by his treating psychiatrist. And yet, he has continued to re-offend violently even with this medication.

[295] How then can the monitoring of medication (which has never been an issue) on a monthly basis assist in controlling, the risk of future violence. The inevitable result is that medication has not historically curtailed his violent behaviours. There is no evidence to suggest that this can be done on a prospective basis.

[296] Dr. Gray testified that he is unsure whether he would report breaches of conditions by Mr. Eamer to the authorities. He explained that he does not normally report breaches as this would be problematic in his relationship with Mr. Eamer. He suggested that he may disclose if contacted by the parole officer.

[297] He acknowledges not having reported to the police information received from Mr. Eamer which could have provided evidence of the commission of offences of violence against female partners.

[298] How then would monthly monitoring of the taking of medication assist in managing the risk posed by Mr. Eamer if a breach would likely not be reported by Dr. Gray to the authorities?

3. Mr. Eamer should be prohibited from consuming alcohol or other intoxicating substances.

[299] There is no question that alcohol or drugs would have a disinhibiting effect on Mr. Eamer and make it much more difficult for him to restrain his violent behaviour.

[300] However, as noted by Dr. Gray in his report, his past offences have not been committed while he was under the influence of alcohol or drugs.

[301] The end result is that abstinence offers little in terms of control over Mr. Eamer’s violent behaviours.

4. Mr. Eamer should be prohibited from any romantic relationships and should not reside with a female.

[302] The Court agrees with the notion that the risk of Mr. Eamer re-offending violently can probably be diminished if no female is placed in a setting vis-à-vis Mr. Eamer which would allow for such violence. A prohibition against any romantic relationships and residing with a female would certainly favour risk control. This is a theoretically sound and logical proposition. However, the difficulties lie in the implementation and enforcement of such a measure.

[303] The Court finds that this measure, when analyzed individually and in the context of the whole of the proposed treatment plan, does not provide the required level of control over Mr. Eamer. This finding is based on the cumulative effect of the following considerations:

i) There is uncertainty as to whether or not the Parole Board of Canada would impose such a condition and the Court cannot operate, in the context of such an application, on such uncertainty: ➢ Witness Nikki Smith testified never having seen such a condition as oppose to an obligation to report being in a relationship; she opined that a ban against certain types of relationships would not be reasonable or feasible. ➢ The conditions of a Long term supervision Order are put out by the Board, it is not bound by the Court’s comments and recommendations.

ii) The appropriate wording of the proposed prohibition is seen as problematic as shown by the evidence; the proposed measure revolves around concepts which are difficult to articulate and quantify; both Dr. Federoff and Dr. Gray used different terms to describe what should be prohibited namely: • “intimate relationship” • “romantic relationship” • “intimate romantic relationship” • “should not reside with a female” • “planned and repeated contacts with a female” • “friendship” • “avoid being close to someone” According to the forensic psychiatric evidence, the risk associated to any type of relationship with a female is said to be so far-reaching that he should even avoid female volunteers if allowed to participate in COSA.

iii) It is unlikely that such a prohibition could be enforced through a Long Term Supervision Order. ➢ The proposed terms of the prohibition are so wide that it covers a multitude of potential contacts with females ➢ Witness Nikki Smith questions the feasibility of such a measure; she doubts it could be managed by CSC; she raises the issue of semantics and how to assess the nature of a relationship ➢ The expert opinion in regards to this prohibition is predicated on Mr. Eamer residing at a half-way house; the suggestion is that half-way houses provide significant control over offenders as to their whereabouts; he would be subject to a curfew and required to sign in and out; he would be asked questions on where he is going when leaving the house ; this would control the risk of the accused entering into relationships; these assumption are not supported by the evidence ➢ An LTSO is not a custodial sentence and cannot be structured so as to effectively convert such an order to a period of custody ➢ Residency conditions are imposed for a period of up to 365 days and may be renewed if reasonable and necessary; the average maximum length is 4 years ➢ There is no evidence to support the suggestion that half-way houses provide significant control over offenders as to their whereabouts ➢ Signing in and out coupled with a curfew do not offer any control while an offender is outside of the half-way house ➢ Asking Mr. Eamer questions as to his whereabouts will not serve the purpose as he has shown to be unreliable

iv) Dr Fedoroff’s evidence is that there is a need for people to watch Mr. Eamer as he cannot be relied alone; the suggestion is that this could be achieved by the coordinated efforts of the various entities which would monitor him; the evidence does not, however, reveal , on balance, how such collective effort would be achieved; the Court notes the following: • Dr. Gray’s evidence that he would likely not disclose breaches to the parole officer and wouldn’t offer information unless asked by the parole officer • There would likely not be more than 2 meetings per week with a parole officer • There is no evidence in regards to the extent of the monitoring done by workers at a half-way house and whether they liaise with the parole officer • It is very doubtful that a parole and/or probation officer would have the legal authority to perform “spot-checks” by entering Mr. Eamer’s home to monitor whether he is in a relationship

v) It is improbable that such a measure can be maintained in the absence of a willingness and ability to do so by Mr. Eamer; the evidence is not supportive of such a will and ability; the Court notes the following: ➢ He did not testify in this hearing and thus, there is no direct evidence from him ➢ Dr. Fedoroff’s statements in his February 15, 2016 report to the effect that “fortunately , Mr. Eamer appears to accept” … “Fortunately, Mr. Eamer appears to agree” … are not consistent with his following testimony: • At a fundamental level Mr. Eamer doesn’t think he has problems • Up to now, he is of the belief that he can be in a relationship; he needs to commit otherwise; his lack of insight and delusions impact on his ability to do so • It is likely the product of a delusional disorder which is unlikely to change ➢ Mr. Eamer has a history of professing insight in regards to relationships and the risk associated thereto and of not following up on his stated intent ➢ He has shown to mislead and manipulate to maintain relationships

5. Mr. Eamer could apply to the Circles of Support and Accountability ( COSA) for additional social support .

[304] This measure offers little in terms of risk management. As stated by Dr. Gray, it is not certain that Mr. Eamer would be eligible to participate in COSA without an index sexual offence.

[305] For his part, Dr. Federoff suggests that while it cannot be guaranteed that COSA would accept Mr. Eamer in the program, there is a high likelihood it would do so with a recommendation from the ROH. If not, thought should be given to the Canadian Mental Health Association as a means to offer support.

[306] As stated by the Ontario Court of Appeal in R.v. G.L. 2007 ONCA 548, [2007] O.J. No 2935 at paragraph 59:

“59… where the determination that an offender’s risk may be safely controlled in the community rests, as it did here, on adequate community supervision, rather than treatment, the availability of the resources to implement such supervision effectively cannot be uncertain. To hold otherwise would be speculative, thereby preventing any reliable assurance that unreasonable risks to public safety can be avoided.”

[307] The end result is that the Court is of the view that the proposed treatment plan does not provide the required probable control required by section 753(4.1) so as to allow for a lesser disposition. Short of isolating him from any type of relationship with females, rehabilitation and safe re-inergration into the community is improbable.

[308] Furthermore, the Court is concerned with the fact that the proposed treatment plan and prospective evidence do not speak to risk management following the expiration of the suggested long term supervision. What happens post long-term supervision?

[309] Fundamental to this plan is the notion that risk control requires strict supervision to ensure that Mr. Eamer does not enter into a relationship. The bulk of the evidence establishes that he cannot be relied upon to avoid relationships. This view is supported by Dr. Federoff’s evidence, namely:

− His condition is “lifelong” − It is likely the product of a delusional disorder which is unlikely to change − At a fundamental level, he doesn’t think he has problems − Up to now, he is of the belief that he can be in a relationship; he needs to commit otherwise; his lack of insight and delusions impact on his ability to do so − Risk decreases as the offender gets older; by age 52, risk will have diminished ; however , age may not be a significant consideration in this matter; his criminal history does not follow the usual pattern; he did not offend in his twenties, which is the usual active age range; he is described as a statistical anomaly − There is a need for people to watch him; he cannot be relied on alone

[310] Dr. Gray provides similar evidence:

− His condition is lifelong − He cannot be cured but the can be managed; everything is predicated on no romantic relationships − His environment must be such that he cannot develop relationships − He is ready to live in the community provided he is in a half-way house setting − Age may not be a factor with this individual.

[311] The issue of an offender’s reasonable control post long-term supervision was discussed by the Ontario Court of Appeal in R.v. D.V.B. 2010 ONCA 291, [2010] O.J. no 1577 at paragraph 57:

“57… under the long-term offender regime, Parliament has built in a very substantial period of time for offenders to obtain the treatment they need to reduce their risk in the community to an acceptable level. Long-term offenders must be incarcerated for at least two years on the predicate offence and thereafter, they can be subjected to a supervision order for up to ten years. For most people who are treatable, I would have thought that 12 years ( and possibly much longer depending on the period of incarceration for the predicate offence) is a generous time frame within which to achieve the relatively modest progress contemplated by s.753.1(1)(c). In this regard, it must be remembered that under s.753.1 (1) (c), a judge need not be satisfied that the risk posed by the offender will be controlled within the 12 year (or longer) timeframe; all that is required is that there be a reasonable possibility that such control can be achieved”.

[312] While the legal standard is “reasonable expectation”, the same logic applies in this matter. The evidence must establish that it is more probable than not, that the control over the risk posed by Mr. Eamer can be achieved within the timeframe of long-term supervision.

[313] The Court is of the view that the evidence does not allow for a finding that the risk can be reduced to an acceptable level post long-term supervision. The unfortunate reality is that, at best, the risk can possibly be managed within a very structured and monitored environment. There is no evidence to suggest that Mr. Eamer will be capable of avoiding relationships outside of this environment. The evidentiary record strongly suggests otherwise. As such, the risk of him re-offending violently is high. His condition is described as intractable. Mr. Eamer will remain a risk through his lifetime. As stated by the Ontario Court of Appeal in R.v. G.L. 2007 ONCA 548, [2007] O.J. no 2935, at paragraph 70:

“70… The Court is required on a dangerous offender application to balance the liberty interests of an accused with the risk to public safety that will arise on the release of the accused into the community. That balancing exercise is informed by this fundamental principle: in a contest between an individual offender’s interest in invoking the long-term offender provisions of the Code and the protection of the public, the latter must prevail”.

[314] Consideration of the sentencing principles set out in sections 718 to 718.2 of the Criminal Code do not lead the Court to a different finding in regards to what is a fit and proper sentence in this matter.

[315] A dangerous offender designation coupled with an indeterminate sentence is seen as a just sanction consistent with the fundamental purpose of sentencing, namely to contribute to respect for the law and the maintenance of a just, peaceful and safe society.

[316] The nature of the offences and circumstances of Mr. Eamer call for the elevation of the goal of protection of the public over other objectives including rehabilitation, deterrence and retribution. It is necessary to separate him from society. For the reasons stated in this judgement, sanctions other than imprisonment for an indefinite period of time to be revised by the Parole Board of Canada are not reasonable in the circumstances.

[317] It is aggravating that Mr. Eamer physically abused a young female with whom he was in a relationship. Furthermore, the index offences and historical offences appear to have been motivated by the sex of the victims. As testified to by Dr. Federoff, the offender has a “very negative view of women in general” and “believes that that no woman can be trusted” in fact it appears that all of his victims have been females.

[318] The Court also finds that the sentence is proportionate to the gravity and the degree of responsibility of the offender when seen in the context of the dangerous offender regime. This conclusion is based on the following considerations:

➢ There is no question that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender; the requirement of the commission by the offender of a serious personal injury offence provides proportionality, to the dangerous offenders regime; as stated by the Supreme Court of Canada:

“31… the effectiveness of s.753 (b) should not go unnoticed. The “serious personal injury offence” requirement acts as a gatekeeper to ensure that the sentence is not disproportionate to the offence.”

R.v. Currie 1997 CanLII 347 (SCC), [1997] 2 S.C.R 260

“38… A predicate offence must be serious, but the degree of seriousness intended by Parliament is exhaustively set out in the definition of an SPIO in s.752.”

R.v. Steele 2014 SCC 61, [2014] 3 S.C.R 138

➢ In R.V. D.V.B. 2010 ONCA 291, [2010] O.J. no 1577, the Ontario Court of Appeal dealt with issues similar to the ones raised by Mr. Eamer; the offender argued that the indeterminate sentence imposed by the Judge was manifestly excessive and disproportionate to the nature and seriousness of his crimes and his degree of moral culpability; he maintained , as Mr. Eamer , that the dangerous offender provisions were not meant to apply to persons such as him since: • He was not a psychopath • He had not engaged in a prolonged and persistent pattern of sexual misconduct • His crimes had been restricted to touching and fondling • He had never exhibited coercive, brutal and callous behavior that typifies most dangerous offenders

➢ The Court rejected these arguments and stated the following:

“ 79… to the extent that the appellant bases his “ disproportionality” argument on the nature and seriousness of his crimes, a similar argument was considered and rejected by the Supreme Court of Canada in R.v. Currie … At paragraph 24 of that decision, Lamer C.J.C. made the following opposite comments:

By definition, therefore arguments of proportionality do not withstand scrutiny… Indeed the respondent is asking the Court to alter or even reduce the definition of serious personal injury offence”…

“80… As for the appellant’s degree of moral blameworthiness, I do not see the characteristics that maybe the appellant “less blameworthy” as having much impact on the dangerous offender application. The focus of such an application is on the future dangerousness and the protection of the society.”

➢ The offences committed against Samantha Mackay are objectively serious; they are not limited to the throwing of an ashtray, punches to the head causing a headache and the cutting of his own throat as suggested by counsel in his written submissions; she was subjected to serious physical and emotional violence; this violence has already been described in this judgment; over and above the physical pain involved in being repeatedly punched to the head on a number of occasions, the uncontested evidence is that this abuse resulted in severe emotional and psychological harm; as already noted, her July 21, 2015 victim impact statement reveals that: • She went into a severe depression following these events • She lost significant weight • She is afraid that he will break out into her home even knowing that he is in jail • She felt worthless, as if she was garbage • She now has a very hard time trusting most men and feels this will impact on other future relationships

➢ As stated by the Supreme Court of Canada in R.v. McGraw (1991) 3 S.C.R.72 at paragraph 22:

“22… There can be no doubt psychological harm may often be more pervasive and permanent in its effect than any physical harm.”

➢ The “jump principle” which is grounded on rehabilitation as a sentencing objective has little if any bearing on the disposition in this matter; the fundamental purpose of sentencing Mr. Eamer remains the protection of the public in the context of overwhelming evidence of little hope at rehabilitation; the leap in sentence is necessary to protect the public; as explained by Justice Campbell in R.v. Kyriacopolous [2015] O.J. no 3407 in describing the “ jump principle at paragraph 14:

“14… As a matter of principle, sentences imposed upon repeat offenders, at least offenders with relatively minimal criminal records and with significant prospects for rehabilitation, should increase incrementally and gradually, rather than dramatically by great leaps and bounds… in the interests of rehabilitation, the duration of custodial sentences should progressively “step” up as further offences are committed, rather than “jump” up in the degree of their severity.”

➢ Finally, the Court would note that, in any event, Mr. Eamer was in fact sentenced to a fairly lengthy period of custody on October 16, 2012 in regards to the offences against Carrie Stewart; • 266: 180 days ( 330 days pre-sentence custody) • 266: 115 days consecutive • 279: 180 days concurrent • 430: 180 days concurrent

CONCLUSION

[319] For the reasons articulated in this judgment, the Court imposes the following sentence on Jason Eamer:

1. He is designated as a dangerous offender and subjected to a sentence of detention in a penitentiary for an indeterminate period on the following counts in the indictment:

i) Count #1: criminal harassment, section 264(2) (d) of the Criminal Code

ii) Count #2: forcible confinement, section 279(2) of the Criminal Code

iii) Count #4: assault with a weapon, section 267(a) of the Criminal Code

iv) Count #8: possession of a weapon, section 88 of the Criminal Code

2. He has been in custody since June 28, 2014 which translates to approximately 34 months in pre-trial detention; which will be reflected as follows:

i) Count #3: assault, section 266 of the Criminal Code: 28 months in jail (time served)

ii) Count #7: breach of probation, section 733.1 of the Criminal Code: 6 months jail consecutive (time served)

3. Counts #5 (s.266) and 6 (s.267 (a) to be marked as withdrawn

4. The Court imposes a section 109 lifetime prohibition from possession of a firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, any ammunition, any prohibited ammunition or an explosive substance; this order is made under counts 1, 2, 4 and 8.

5. There will be a 10 year discretionary prohibition order under section 110 for count 5.

6. Mr. Eamer is ordered pursuant to section 487.05, to provide such samples of bodily substances that is reasonably required of the purpose of forensic DNA analysis.

7. There will be an order under section 743.21 prohibiting communication with certain individuals while in custody but it will not be as wide and far-reaching as sought by the Crown; in the context of an individual who will be subjected to an indeterminate jail term and life-time supervision, the non-communication order sought by the Crown which would prohibit communications with all females is not seen as reasonably necessary in the circumstances; nor is there any indication that he has communicated with the immediate family members of the victims; the end result is that he is prohibited from communication with the following individuals while in custody:

− Raeanne McDougall − Krista Allen − W.F. − K.S.-Q. − Julie Carruthers − Shanna Acres − Melissa Looyen − Carrie Stewart − Joanne Lauterbauch − Samantha Mackay

Justice Ronald M. Laliberte Jr.

Released: May 01, 2017

CITATION: R. v. Eamer, 2017 ONSC 2549

COURT FILE NO.: 15-52

DATE: 2017/05/01

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

JASON EAMER

Accused

REASONS FOR JUDGMENT ON DANGEROUS OFFENDER APPLICATION

Justice Ronald M. Laliberte Jr.

Released: May 1, 2017