R. v Ahmed, 2017 ONSC 3491

Court File and Parties

COURT FILE NO.: 13-SA5004/13-A10804/15-12363 DATE: 2017/06/22 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Applicant – and – ABDIRAHMAN AHMED Respondent

Counsel: Peter Napier, for the Applicant/Crown Self-represented Marni Munsterman, as Amicus Curiae

HEARING DATES WITH EVIDENCE ENTERED (AT OTTAWA): October 4, 2013; October 20, 2014; March 6, 2015; October 20, 2015; November 19, 20, 2015; January 18, 27, 2016; March 14, 17, 18, 21, 22, 23, 24, 31, 2016; April 4, 5, 6, 7, 14, 2016; October 11, 12, 13, 14, 20, 21, 25, *26, *27, 2016; December *5, *6, *7, *20, 2016; January 26, 2017; April 24, 2017. [* indicates dates of a motion by the respondent that was ultimately dismissed as abandoned]

SENTENCING DECISION

RATUSHNY J.

1. Overview

1Mr. Ahmed is to be sentenced for five offences. The Crown seeks to have him declared a dangerous offender pursuant to s. 753(1) of the Criminal Code and sentenced to an indeterminate period of incarceration under s. 753(4.1).

2The five offences are the following. On October 4, 2013 Mr. Ahmed pled guilty to four offences, three in connection with a sexual assault with a knife in August 2011 and another for an assault against a correctional officer in April 2013. In addition, the Crown proved, as an aggravating factor, that Mr. Ahmed had committed another sexual assault, uncharged, against a different female victim in May 2009. On November 20, 2015 Mr. Ahmed pled guilty to a fifth offence, an assault causing bodily harm against a fellow inmate in August 2015.

3When Mr. Ahmed pled guilty in October 2013 to the four offences (sexual assault with a weapon, forcible confinement, utter threats, assault) and agreed with the facts of the uncharged sexual assault, he had the assistance of counsel. When he pled guilty in November 2015 to the fifth offence he also had the assistance of counsel, albeit different counsel as his prior counsel had requested to be removed. At status check appearances in January 2016, Mr. Ahmed stated that he wanted to consent to the Crown’s application to have him declared a dangerous offender. He requested his second counsel be removed. That occurred, however, I declined to abbreviate the sentencing hearing, as Mr. Ahmed indicated was the purpose of his wish to consent to the Crown’s application, in light of Mr. Ahmed’s new self-represented status. The hearing continued starting in March 2016, with Mr. Ahmed representing himself. His second counsel was appointed as Amicus Curiae to try to ensure the fairness of the hearing.

4Mr. Ahmed is 32 years of age. He was last in the community in 2012. In 2012 he commenced an aggregate custodial sentence in connection with another sexual assault offence with a warrant expiry date of August 30, 2015. He has remained in custody on that sentence and now in respect of the predicate offences to the present time, with the effective result of having been incarcerated for the last almost 5 years.

5A lengthy sentencing hearing has resulted in a large amount of evidence placed before the court detailing Mr. Ahmed’s personal, medical, substance abuse, mental health, legal, institutional and community supervision history from his childhood in Canada in the 1990s up to 2015 and 2016.

6This history has been accurately summarized in a psychiatric assessment report from Dr. Philip E. Klassen dated February 4, 2015, entered as Exhibit 9 on the sentencing hearing and also in a second psychiatric assessment report from Dr. J. Paul Fedoroff dated June 13, 2016, entered as Exhibit 17 on the sentencing hearing.

7The Crown correctly characterizes Mr. Ahmed’s criminal history as dense and varied. It is replete with examples while in the community and while incarcerated of his rapid mood changes, extreme impulsivity, power struggles, inability to control his anger, acting out with accompanying self-harm, increasingly violent behaviour and refusal to engage in any meaningful rehabilitative programs or treatments.

8I do not propose to review the evidence before me on the sentencing hearing in any great detail other than to categorize it in broad-brush terms. That evidence including the expert opinion evidence has been well reviewed by the Crown in its written sentencing submissions, at paragraphs 6-128.

9Mr. Ahmed chose not to call any evidence on the sentencing hearing. However, during the course of the hearing and in representing himself he made many comments to the court of the hardships he said he suffered while incarcerated at what has been widely accepted as an over-crowded and under-resourced Ottawa Carleton Detention Centre for a large and earlier portion of his custody at that facility. He has said that conditions have improved over recent months. He also advised the court during the Crown’s calling of evidence that he did not agree with some of it. However, as Mr. Ahmed’s comments have not been sworn evidence or subject to cross-examination, I have noted his comments but I have accorded them diminished weight.

10My conclusion is that the evidence overwhelmingly leads to the inescapable finding that Mr. Ahmed is a dangerous offender and that because there is no evidence supporting a “reasonable expectation that [a determinate sentence] will adequately protect the public against the commission by [Mr. Ahmed] of murder or a serious personal injury offence” (s. 753 (4.1) Criminal Code), there is no other option than to impose a sentence of detention in a penitentiary for an indeterminate period for the predicate five offences.

2. The Evidence on the Sentencing Hearing

The Predicate Offence of Sexual Assault with a Knife in August 2011

11The facts of this August 2011 offence (including accompanying offences of forcible confinement and uttering threats) involve sexually sadistic violence against a young woman Mr. Ahmed did not know. He showed her his knife. He told her he would stab her if she did not comply with his sexual demands. His assaults included anal penetration with his penis, fingers and tongue, attempts at vaginal penetration and forcing the victim to take his penis into her mouth. She managed to escape without other serious personal injuries.

The Uncharged Sexual Assault in 2009, proved as an Aggravating Factor

12Mr. Ahmed knew this female victim. He broke her cellular phone, anally penetrated her and drew blood.

The Predicate Offence of Assault committed in 2013 against a Correctional Officer

13This offence occurred while Mr. Ahmed was in custody awaiting a determination of the Crown’s application to have him declared a dangerous offender. He threw his urine on a correctional officer who was watching Mr. Ahmed during one of his suicide-watch periods.

The Predicate Assault Causing Bodily Harm Offence committed in August 2015 against an Inmate

14This assault at the Ottawa Carleton Detention Centre commenced with Mr. Ahmed “sucker-punching” another inmate in the head from behind and after that inmate fell unconscious to the ground as a result, pulling away from other inmates trying to restrain him and making his way back to the unconscious inmate and stomping on his head or face several times. The victim suffered a black eye, two facial lacerations above one eye and a facial abrasion.

A Prior Sexual Assault committed in May 2011, three months before the Predicate Sexual Assault with a Knife committed in August 2011

15This sexual assault was against a young woman Mr. Ahmed had met once before. This time they met at a house party and both consumed alcohol. After leaving, the victim advised Mr. Ahmed she needed to use a bathroom and he said he would lead her to one. He led her to a side alley, started to kiss her under protest and when she tried to call on her cell phone for help, he grabbed it, removed the battery, threw it away and told her to remove her pants or he would stab her. He vaginally penetrated her with his penis, then directed her to sit on his face and after, demanded she perform fellatio on him. She complied. He then again inserted his penis into her vagina. When the victim told him she did not want this, Mr. Ahmed told her to get up and get dressed. She fled, crying, and immediately contacted the police. This is the sexual assault for which Mr. Ahmed was convicted after trial and received a 3-year aggregate sentence in 2012 that he served to its warrant expiry date of August 30, 2015.

The Remainder of Mr. Ahmed’s Criminal Record

16Mr. Ahmed’s criminal record begins in 2002 when he was 17 years of age. He collected eight convictions as a youth between March 2002 and October 2003. He continued to persistently re-offend for the next ten years when in the community.

17As the Crown has summarized this criminal record and as the offences are detailed in Dr. Klassen’s Report and from the testimony of Detective Jeannette Kramer of the Ottawa Police Service, Mr. Ahmed has amassed a total of thirty-one criminal convictions for violent offences, non-violent offences and breaches of court orders since 2002. His more violent offences include a conviction in 2004 for a robbery, in 2007 for assault with a weapon and the 2012 conviction for sexual assault. He has been convicted of five break-and-enter offences.

18In his interviews with Dr. Klassen, Mr. Ahmed could remember many of these events and incidents over the last ten years and commented on them. For some he admitted to having been drinking alcohol heavily. He refused, however, to discuss with Dr. Klassen the circumstances of his 2012 conviction for sexual assault.

Institutional Records: The Ministry of Child and Youth Services

19These records indicate a young man constantly in conflict with staff and other residents at a youth home, problems with reporting, a curfew breach and statements by him that he did not need counselling. His mother told officials there were no problems with his peers or his temper and there was no need for counselling. However, the problems repeated themselves. He was expelled from school a number of times. His grades were all less than 10%. He moved out from his mother’s home and was subsequently evicted from another residence. He obtained employment and then left. He was repeatedly re-arrested for offences. He was not working. He incurred a number of misconducts in youth custody and was generally described as rude and needing supervision. He was confrontational with staff while in youth custody and acted out by refusing to clean his cell, making insulting comments to staff, threatening a cellmate and flooding and trashing his cell.

20Sylvie Boisvert Turner, a provincial probation officer for over 20 years, testified that while Mr. Ahmed was a youth and on community supervision, her review of his records indicate, as the Crown has fairly summarized her evidence at paragraph 53 of its sentencing submissions, a significant history of failing to report, misleading probation officers and being reluctant to participate in treatment, counselling or other available interventions or opportunities.

Institutional Records: The Ministry of Community and Correctional Services

21These records are full of disciplinary charges and convictions incurred by Mr. Ahmed as an adult, since 2004. They are accurately summarized at paragraph 54 of the Crown’s sentencing submissions.

22Between February 2004 and December 2014 Mr. Ahmed was convicted of thirty-eight different institutional offences ranging from wilfully disobeying or breaching institutional requirements, uttering gross insults, inciting a disturbance, having contraband, possessing homemade weapons, threats, joining in on an assault on another inmate, covering his cell light, window and camera, and fighting with an inmate. He often harmed himself as part of his defiant behaviour.

23Steve Ashdown, the security manager at the Ottawa Carleton Detention Centre, reviewed many of these institutional charges and misconducts in his testimony. He described numerous acts of self-harming, occasions when Mr. Ahmed was observed with blood on his person or his surroundings, numerous occasions when Mr. Ahmed was verbally abusive to staff, occasions when he broke or removed a sprinkler from a cell causing flooding, occasions when it was necessary to threaten to deploy or to deploy pepper spray and frequent occasions when Mr. Ahmed had to be placed on suicide watch or into segregation.

24Amicus Curiae points out that on a number of occasions including on October 15, 2010, Mr. Ahmed would apologize after his often impulsive behaviour and say that it would not happen again and give some indication of remorse, even if transient. Amicus Curiae submits that the vast amount of documentation of Mr. Ahmed’s bad institutional behaviour often refers to him having feelings of hopelessness, despair, depression, anxiety and low mood and can be interpreted to speak to the desperation he has felt during his numerous incarcerations. I accept this as a reasonable inference to be drawn from the evidence and from Mr. Ahmed’s statements to the court and his demeanour during the sentencing hearing.

25These institutional records also include medical records documenting numerous incidents including those in 2009 when medical staff were concerned that Mr. Ahmed was hoarding medication to sell to other inmates, when he punched a mirror and injured his hand, when he said in 2012, “I hate women” and was observed to be hot-tempered and depressed. Later, Mr. Ahmed was again reportedly hoarding medication again, and in the next months he was taken to the Ottawa Hospital Emergency Department where he admitted his self-harm was his way of “acting-out” because of depression and anxiety about court. He was again self-harming in 2013 and there were again concerns about the hoarding of medications, particularly an antidepressant that at times is snorted in jail for its stimulant effect. Ultimately, Mr. Ahmed explained his hoarding as a result of pressuring and bullying from other inmates that, at times, was accompanied with enticements from them.

26Wenceslolous Asonganyi, the health care manager at the Ottawa Carleton Detention Centre, reviewed these medical records and testified about them including about the many incidents of self-harm where Mr. Ahmed would cause himself to bleed and smear the blood on his own wrist, arm and gown. Mr. Asonganyi also described incidents of frequent hoarding of medication and when Mr. Ahmed would refuse health care treatment. He said Mr. Ahmed was a “difficult patient” and that “efforts that work for most would not work for him”.

Institutional Records: St. Lawrence Valley Treatment Centre

27These records are from Mr. Ahmed’s stay at this treatment facility between October 2010 and February 2011, a period of four months when Mr. Ahmed was 26 years of age. They are full of reports of him being rude and/or profane to staff and having a significant amount of conflict with them, often over entitlement and respect issues. He became limit testing and presented as entitled and angry. On more than a few occasions he threatened assault if he didn’t get his way. He committed small thefts. He had to be placed in segregation and when there, wrapped a cloth around his neck. He requested continued segregation and said he could not control his behaviour around others. When out of segregation he covered the cell camera, tore up his clothing, was naked, made a noose and said he wanted back into segregation. He said that treatment, the whole point of this facility, stressed him.

28Karen Barclay, the superintendent of the Treatment Centre, testified that the Centre offers its residents intense psychiatric services, assessment, stabilization and sexual offending treatment. She said Mr. Ahmed had been referred to the Treatment Centre because of anger management deficits, mental instability, suicide attempts, self-harm, severe drinking problems and numerous police contacts.

29She described him in the treatment groups as being at times melodramatic, not a positive influence, in a semi-sleeping position and either not completing his homework assignments or doing so superficially. Her review of the Treatment Centre’s notes on Mr. Ahmed indicated that he behaved as if he had an entitlement to everything and would not heed staff requests.

30He was ultimately discharged early from the Treatment Centre to be returned to the Ottawa Carleton Detention Centre to complete his sentence. He was accompanied by a discharge letter dated February 2, 2011 from Dr. Watson, as referred to at paragraph 76 of the Crown’s submissions on sentencing, that said in part,

Mr. Ahmed has been on several behaviour plans and has been repeatedly cautioned that his behaviour was disruptive to the milieu and treatment of others. He fluctuates in motivation for treatment but ultimately is not ready to commit to making any significant change in his lifestyle…He does not have a significant Axis I disorder beside substance abuse and possibly ADHD. He has refused further diagnostic assessment and is unwilling to consider treatment with medication.

Institutional Records: The Correctional Service of Canada and The Parole Board of Canada

31These records stem from Mr. Ahmed’s first and only incarceration in a federal institution, as a result of his 3-year sentence of incarceration for sexual assault in 2012. He was with the Correctional Service of Canada approximately between August 2012 and February 2013, a period of around five to six months. His stay in a federal institution was cut short when he was transferred back to the Ottawa Carleton Detention Centre to deal with the predicate offences.

32A Preliminary Assessment Report dated September 12, 2012 indicated that Mr. Ahmed said he would not be willing to take sex offender treatment programs. He declined to discuss his sexual offending which at that time was known to refer to his 2012 conviction for the May 2011 sexual assault but not to his 2009 and August 2011 sexual assaults. He admitted to substance related issues and criminal self-support. The Report said Mr. Ahmed minimized or denied offending and blamed some of his convictions on deceitful and manipulative lawyers. He acknowledged that once alcohol-intoxicated, he lost all respect for the law. He was scored as a high risk for sexual re-offending and met the criteria for a high intensity sexual offender treatment program as part of his correctional plan.

33In October 2012 Mr. Ahmed refused to participate in alcohol treatment. Subsequently, he again refused to participate in sex-offender programs and phallometric testing. While at Warkworth Institution, he agreed to be placed on the program wait list for a number of programs including a high intensity sex offender program and a substance abuse program. As Amicus Curiae has noted, Mr. Ahmed was transferred back to the Ottawa Carleton Detention Centre before any programs could be offered to him. Amicus Curiae submits there is no evidence to suggest that Mr. Ahmed has changed the view he expressed while at the federal Warkworth Institution of being willing to do such programming when it became available.

34Mr. Ahmed’s behaviour in the penitentiary system mirrored and repeated the kind of behaviours he had engaged in while incarcerated at provincial correctional facilities, including refusing to take medications, refusing to comply with orders, threatening staff, blocking cell cameras while in segregation and threatening to throw feces and urine on correctional staff. He told correctional authorities he had not been involved in any misconducts while at the Ottawa Carleton Detention Centre, although the opposite was true as summarized above.

35In January 2014, the Parole Board of Canada denied full parole for Mr. Ahmed after reviewing his conduct in the federal system and concluding that his “risk would be undue in the community.”

36As a further consequence of Mr. Ahmed’s continued bad behaviours, the Correctional Service of Canada referred him to the Parole Board of Canada for a detention hearing, submitting that he be detained in custody past his statutory release date and until his warrant expiry date. Their concerns were set out in a 2014 Assessment for Decision Recommending Detention, by Garry Grant. That Assessment commented on Mr. Ahmed’s history of extreme impulsivity, inability to control his anger, his untreated substance abuse, possessing no accountability for his actions, denying his guilt by saying the sex with the victim was consensual, and his failure to complete any programming interventions. It concluded by saying there was “currently no evidence that the high risk the subject poses to re-offend sexually has been mitigated.”

37The Parole Board of Canada decided Mr. Ahmed had to be kept in custody to his warrant expiry date because he had engaged in a pattern of persistent violent behaviour and was likely, if released, to commit an offence involving serious harm to another person prior to his warrant expiry date.

Psychiatric Evidence

38There have been three psychiatric assessments of Mr. Ahmed. None are at odds with the others in any material respects with reference to Mr. Ahmed’s psychiatric diagnoses and risk assessment. I accept this expert opinion evidence.

Assessment by Dr. Jonathan Gray

39The first psychiatric assessment is by Dr. Jonathan Gray of the Royal Ottawa Mental Health Centre dated August 23, 2012. Dr. Gray was requested to assess Mr. Ahmed for the purposes of his sentencing in 2012 for the May 2011 sexual assault occurrences.

40Dr. Gray diagnosed Mr. Ahmed with an antisocial personality disorder and poly-substance abuse. He opined that there would be difficulties with monitoring and compliance with conditions. He assessed Mr. Ahmed’s actuarial risk of future violent or sexual offending to be in the moderate range, but commented there were several other factors, arising out of Mr. Ahmed’s history of alcohol use, criminal offences, unwillingness to submit to treatment and being disruptive of the treatment milieu, that would suggest his risk of future criminal behaviour was higher. He assessed Mr. Ahmed’s future treatment prospects as poor.

Assessment by Dr. Philip Klassen

41The second psychiatric assessment is by Dr. Klassen, as a result of an Assessment Order made under s. 752.1 of the Criminal Code as part of this sentencing hearing. Dr. Klassen’s Report is dated February 4, 2015. It has been heavily relied upon by the Crown and Amicus Curiae in their sentencing submissions and deservedly so in my view. Dr. Klassen also testified at the sentencing hearing. The Crown has accurately summarized Dr. Klassen’s Report and his testimony at paragraphs 93-101 of its written sentencing submissions.

42Dr. Klassen met with Mr. Ahmed for a total of eight hours. He diagnosed Mr. Ahmed as not suffering from a major mental illness but suffering from a personality disorder or disorders and a substance use disorder or disorders. He stated the following at p. 44 of his Report,

Diagnostically, it is not my opinion that Mr. Ahmed suffers from a major mental illness, such as schizophrenia. Mr. Ahmed was exposed, it appears, to an individual (his brother) whose symptoms allowed Mr. Ahmed to emulate symptoms of schizophrenia. That being said, there is virtually nothing in his history suggestive of schizophrenia, apart from brief periods of questionable self-report, in custody. Mr. Ahmed has now resiled from that position, and I don’t believe that his self-report, currently, is untruthful. He certainly presented without positive or negative symptoms of illness, over the eight hours of interviewing him.

Diagnostically, I would submit that Mr. Ahmed suffers from a personality disorder or disorders, and a substance use disorder or disorders.

43Dr. Klassen went on to say,

I would submit that Mr. Ahmed’s personality structure is complex. Certainly, this gentleman meets the criteria for antisocial personality disorder; there is a history of conduct-disordered behaviour as a child, and as will be articulated below, this gentleman certainly meets the adult criteria for antisociality. He also presents with symptoms of borderline personality and narcissistic personality disorders, as well. These three personality styles do tend to cluster somewhat…. That being said, it’s my opinion that this gentleman’s presentation is most substantially antisocial.

44Dr. Klassen’s opinion is that Mr. Ahmed’s actuarial risk to re-offend places him “at high risk of serious (sexual or violent) recidivism.” Dr. Klassen added at p. 50 of his Report:

Clinical judgment should be introduced into the probabilistic portion of the risk assessment process only when deemed absolutely necessary, lest one risk degrading the accuracy of one’s risk assessment. I see no indication for the introduction of clinical judgment in this case.

45Dr. Klassen’s further opinion is that Mr. Ahmed meets the test for a dangerous offender designation and there is no evidence to support a finding that there is a reasonable possibility of eventual control in the community. He stated at p. 55 his Report,

Given that this gentleman does not appear to be able to manage his behaviour even in highly secure settings (in custody), any return to the community (under a Long-Term Supervision Order, as a Dangerous Offender with a determinate or indeterminate sentence) is likely to result in frequent breaches, and re-incarceration. I don’t believe that there is anything in this gentleman’s behavioral or management history that could be relied on to provide psychiatric support for either “reasonable possibility of eventual control of the risk in the community”, or “reasonable expectation that a lesser measure…will adequately protect the public against the commission by the offender of murder or a serious personal injury offense”, albeit I would again point out that we lack the capacity to predict what type of violent or sexual offending might be seen, should he recidivate. [italics added]

46Dr. Klassen described Mr. Ahmed as physically healthy and “a bright individual”. He testified that although there had been numerous incidents involving acts of self-harm, he believed that “none of them suggested serious suicide attempts.” He also commented that Mr. Ahmed has engaged in “quite a bit of lying”.

47Dr. Klassen commented in his testimony that Mr. Ahmed’s assaults on the correctional officer and his serious assault against another inmate, both while subject to the Crown’s dangerous offender application, speak to Mr. Ahmed’s problems with self-control, compliancy and impulse control.

48He said Mr. Ahmed’s poor institutional behaviour may well present as a challenge for treatment, referencing Mr. Ahmed’s time at the St. Lawrence Valley Treatment Centre. He said, responding to the fact that Mr. Ahmed needs treatment but has not received any to date, that Mr. Ahmed is “the author of not receiving treatment” and this is consistent with his high score of 35 on the PCL-R, one of the actuarial risk assessment tools utilized, suggesting difficulties with general and violent recidivism, and treatment responsiveness.

49As for the role of alcohol in some of Mr. Ahmed’s offending, Dr. Klassen commented that he appears, while in custody, to be able to continue to offend in the absence of alcohol.

50Dr. Klassen testified that Mr. Ahmed had told him he was very ashamed of having been convicted of sexual assaults, that he regarded this as very unacceptable behaviour and it was because of this shame that he did not want to talk about these offences. Dr. Klassen commented that this not wanting to talk about the sexual offences was an issue for future treatment, as Mr. Ahmed would need to move past this attitude to improve his treatability and release ability. Dr. Klassen commented that it was hard to say whether there was genuine remorse but that at least Mr. Ahmed was taking some limited responsibility for his actions, and that what has to be considered is the behavioural change remorse brings about because persons such as Mr. Ahmed have completely distorted views of risk and reward.

51In relation to the issue of treatment, Dr. Klassen agreed that Mr. Ahmed’s willingness to engage in treatment was a factor that could change over time. He commented that Mr. Ahmed has a lot of problems ranging from personality issues to skills deficits. He has no formal education, no marketable skills to speak of, and poor problem solving and relationship skills. Dr. Klassen said there is no cure per se for personality disorders but there is treatment available to help persons like Mr. Ahmed cope with their personality disorders and develop better life and problem-solving skills. Dr. Klassen said that so far, however, Mr. Ahmed has not provided any reason for optimism that he can engage in treatment programs.

Assessment by Dr. Paul Fedoroff

52The third psychiatric assessment is by Dr. Paul Fedoroff of the Royal Ottawa Mental Health Centre, pursuant to a second s. 752.1 Assessment Order as part of the sentencing hearing, as Mr. Ahmed became self-represented.

53Amicus Curiae elected to rely on this second assessment and so Dr. Fedoroff’s Report dated June 13, 2016 was entered as an exhibit and he was called by Amicus Curiae to testify at the sentencing hearing. The Crown has accurately summarized Dr. Fedoroff’s Report and his testimony at paragraphs 113-128 of its written sentencing submissions.

54Dr. Fedoroff met with Mr. Ahmed for a total of two and one-half hours. He diagnosed Mr. Ahmed with poly-substance abuse and possible sadism, the latter, he said, because Mr. Ahmed did things that would have terrified his victims. In his Report he placed Mr. Ahmed in the “moderate high risk category” to re-offend. In his testimony he agreed Mr. Ahmed was perhaps even a very high risk to re-offend. He said Mr. Ahmed told him he thinks he should be made a dangerous offender.

55Dr. Fedoroff testified that Mr. Ahmed was not a reliable historian and had a history of exaggerating symptoms. He said he was uncertain if Mr. Ahmed was suffering from depression as he had claimed and instead that he might have been trying to look as if he had depression.

56Dr. Fedoroff agreed Mr. Ahmed had told him he had not had a problem with drugs but that when he had written to the trial judge for his 2012 sentencing hearing, he had told the judge he had a seven-year history of cocaine use. Dr. Fedoroff agreed this could have been an attempt to manipulate the court to give him a lesser sentence. Dr. Fedoroff commented that it is “difficult to know what’s real and what’s not real” with Mr. Ahmed.

57He agreed that Mr. Ahmed would need to engage in a “radical change” to engage in and become responsive to treatment.

58Dr. Fedoroff testified that he largely agreed with the findings contained in Dr. Klassen’s Report except for the issue of whether there was a lesser measure than an indeterminate sentence that could adequately protect the community.

59He focused on Mr. Ahmed’s need for treatment and said Mr. Ahmed could benefit from avoiding substances and from having a circle of support, particularly from a group called the Circle of Support and Accountability (COSA).

60Because of the absence of treatment of Mr. Ahmed, Dr. Fedoroff was not prepared to offer an opinion that Mr. Ahmed could not be treated. He opined, as stated at p. 40 of his Report, that a determinate sentence followed by a long-term supervision order could give Mr. Ahmed,

the degree of hope necessary for him to make full use of the treatment available in the correctional facilities. It is my impression that men with dangerous offender designations and indeterminate sentences are less likely to be offered treatment and therefore have more difficulty proving they are no longer in need of custody.

61In his testimony, Dr. Fedoroff said that although Mr. Ahmed presents as a “very worrisome individual”, a determinate sentence could give him motivation. He said “I would hope he would change” and a determinate sentence remained something he thought the court should consider. Amicus Curiae agrees and submits the court give serious consideration to Dr. Fedoroff’s recommendation.

Reply Evidence from Dr. Klassen

62Dr. Klassen was recalled by Amicus Curiae to testify with respect to Dr. Fedoroff’s Report and recommendation for a 10-year determinate sentence followed by a 10-year long-term supervision order.

63Dr. Klassen testified that he “would not be horrified by a 10 year fixed custodial sentence and up to 10 years of supervision.” He gave evidence about age related declines in recidivism and that the 50’s seem to be a “magical” decade in seeing a reduction in serious sexual behaviour, indicating too that the “job is to get them to their 50’s” and that sexual offending against peer aged females by male offenders is basically extinct by 60.

64As Amicus Curiae has submitted, Dr. Klassen was less steadfast in his reply testimony about the need for an indeterminate sentence than he had been in his original opinion.

65Dr. Klassen was, however, guarded in his comments on the advisability of a determinate sentence and long-term supervision order, saying that he “would not feel highly confident with our ability as psychiatrists to predict that far out” and “the farther out we go the more challenging it is to feel confident about risk assessments”. He commented that the challenge is how much confidence can be placed on Mr. Ahmed’s expressions of wanting to change. He said you have to anticipate non-engagement from Mr. Ahmed given his track record between 2002 and 2012 where he has repeatedly said he will change and then has chosen not to follow through.

66Dr. Klassen testified that notwithstanding Dr. Fedoroff’s recommendation for a determinate sentence, his opinion as originally expressed remained unchanged.

67Mr. Ahmed asked Dr. Klassen questions about how he could tell when a person was telling the truth. Dr. Klassen included in his reply that he had assumed Mr. Ahmed was telling the truth during his interviews with him but he couldn’t be sure.

3. The Offender

68Information on Mr. Ahmed’s personal history comes from the Reports of Dr. Klassen and Dr. Fedoroff. I provide only a general synopsis of this personal history. I note that some of it is contradictory between the two Reports with respect to non-material details and that it is based on Mr. Ahmed’s self-report to each of them.

69Mr. Ahmed is 32 years of age. He was last in the community in February 2012 when he had just turned 27 years of age.

70He was born in Kenya and came to Canada with his family when he was 7 years of age. He is a Canadian citizen. He has generally lived in Ottawa. His parents separated in 1995 when he was 10 years old and his father moved to California. He does not speak well of his father, alleging serious abuse and violence and that he was afraid of him. He has no contact with his father and no idea about his father’s history including any substance abuse, legal, medical or psychiatric problems. His mother has no known problems. He has never met any paternal or maternal relatives and does not know of any problems in their personal history. He was never sexually abused as a child and child welfare authorities were never involved with him or his family. He reports a total of thirteen children in the family. He is the fourth biological child of his mother and father. He said one of his brothers died in 2012 as a victim of crime but he was uncertain as to the details; another brother suffers from severe schizophrenia; three of his sisters are living traditional lifestyles; another brother is in Ethiopia.

71He generally chose to disregard his mother’s rules when growing up. He left school at age 14 after being suspended for stealing and then was later expelled in grade nine. He said he first stole at age 10 and then continued to steal, in the company of others, partly out of boredom and partly because he was envious of the possessions of others. He first engaged in a break-and-enter at age 16, also with others. Later, he said, he was more likely to steal alone and alcohol was more likely to be involved “to give him a sense of no fear” and to feel “powerful”.

72After leaving school, he worked at times and at other times helped his mother around the home. He said he worked perhaps sixty percent of the time as an adult and estimated he had had perhaps fifteen or twenty jobs in all including in fast food outlets, masonry, roofing, retail and as a telemarketer. Much of his work was seasonal. He said that when he was not employed he would spend his time while supported by Ontario Works with family and friends or, he would engage in heavy drinking and then engage in criminal activities (break-and-enters). He said when he was sober he could not steal, as “that’s the real me”.

73Mr. Ahmed has never married. He lived in a common-law relationship once, when he was 21 or 22 years of age. His former partner separated from him. They have a nine-year old daughter.

74Mr. Ahmed is not on any psychiatric medications. His substance of choice is alcohol that he would consume heavily when he did consume. He said all his offences laterally have taken place while he was alcohol-intoxicated. He admitted to falsifying symptoms of schizophrenia while in custody in 2010 and 2011, knowing of them from his brother. He was prescribed medication for this. He explained his falsifying by saying he had wanted to get out of custody, get a lighter sentence and have contact with his daughter. He asked to see a psychiatrist as he had been feeling depressed and he enjoyed seeing the psychiatrists who attended to him.

4. Analysis

75The Crown’s evidence on this sentencing hearing supports the recent psychiatric diagnoses and risk assessments of Mr. Ahmed from the two expert psychiatric witnesses. I accept that expert evidence as accurate in all material respects, and persuasive.

Dangerous Offender Finding

76Particularly illuminating on the issue of dangerousness in light of all of the evidence on this sentencing hearing, in my view, are the following comments in the “Diagnoses” section of Dr. Klassen’s Report, at p. 43-44 (italics added):

• [T]his gentleman likely suffered adversity, and trauma in his early years.
• [F]ile information suggests that a substantial number of Mr. Ahmed’s siblings have had difficulties, variously, with substance abuse, criminality, and mental disorder.
• Mr. Ahmed does appear to have manifested behaviourial disturbance from an early age. The specifics are not clear.
• Mr. Ahmed became substantially behaviourially disturbed by his mid-teen years (a behaviourial disturbance perhaps compounded by problematic peer associations) which led to his leaving school quite prematurely. While he’s clearly bright, there’s been no successful return to education. Indeed, his time appears to have been quite unstructured, since his mid-teen years, at least while in the community.
• This gentleman has not succeeded in the major domains of adult adaptation.
• Mr. Ahmed appears to have experienced progressive social decline, leading to significant periods of homelessness, perhaps increasing substance use, and latterly more problematic offending. I’m struck by this gentleman’s almost motoric, and certainly persistent, defiance, autonomy drive, and antiauthority sentiment. He’s indicated that he experienced both a “rush” from engaging in a problematic lifestyle, and has been unable to cope without structure.

77In addition on the issue of dangerousness, Dr. Fedoroff was cross-examined at the sentencing hearing and agreed with the following passages put to him by the Crown, quoting from Dr. Klassen’s Report:

• In terms of motivating factors, it’s my sense that this gentleman is driven toward limit-testing, acquisitive, and exploitive behaviour.
• Some destabilizing factors may include some of the motivating factors articulated above. Interpersonal conflict, financial difficulties, difficulties with supervision and treatment resistance, an inability to accept himself as a sexual offender.
• Impulsivity, poor problem-solving skills, use of alcohol as a coping mechanism, a criminal lifestyle and/or association with criminal peers, and a high degree of energy are perhaps also destabilizing. Disinhibiting factors in this case include the need for immediate gratification, poor emotional self-regulation, opportunity, and substance intoxication, along with the loss of perspective, and empathy, that come with dysregulation and intoxication.
• Mr. Ahmed may also experience interpersonal conflict in said (hostile) environment, perhaps leading to aggressive behaviour. There may also be sexual offending; it’s likely worth noting that my understanding of this gentleman’s offense cycle leading to sexual offending is far from complete, given this gentleman’s relatively exculpatory stance with Dr. Gray, and his unwillingness to discuss his sexual offending.
• This gentleman is significantly antisocial, and in addition to being antisocial is, with authority figures and potentially also treatment providers, defiant, and reluctant (at least thus far) to submit to treatment.
• I note that this gentleman indicates that he would like to receive treatment for sexual offending, and substance abuse. I would parenthetically submit that this gentleman’s true appreciation of his characterlogical difficulties remains quite limited or superficial, despite his ability to use treatment language such as “personality disorders” with the undersigned.
• Empirically a PCL-R score of 35 militates against significant, sustained self-change.
• Mr. Ahmed is only 30 years of age. He will remain at significant risk of sexual, violent, or acquisitive criminality (and breaches of conditions) for a further approximately twenty years, before age-related decline in propensity for offending is more substantially a part of the risk management equation.
• Given that this gentleman does not appear to be able to manage his behaviour even in highly secure settings (in custody), any return to the community (under a Long-Term Supervision Order, as a Dangerous Offender with a determinate or indeterminate sentence) is likely to result in frequent breaches, and re-incarceration.

78Under the provisions of section 753(1) of the Criminal Code, the court “shall” find the offender to be a dangerous offender if it is satisfied beyond a reasonable doubt on the evidence that the offender meets any of the statutory criteria set out in s. 753(1)(a) or s. 753(1)(b).

79The Crown, Amicus Curiae and the expert witnesses, Dr. Klassen and Dr. Fedoroff, all agree that Mr. Ahmed meets statutory criteria and must be declared a dangerous offender.

80The applicable Criminal Code sections are the following:

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

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

(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.

81The Crown asks a finding be made under sections 753(1)(a)(i), 753(1)(a)(ii) and/or 753(1)(b) that Mr. Ahmed is a dangerous offender. Amicus Curiae submits a finding is more appropriately made under section 753(1)(a) rather than under section 753(1)(b), given the evidence that Mr. Ahmed’s offending behaviour is more opportunistic and not specifically sexually based, and his criminal history is varied.

82I am satisfied on the basis of all of the evidence as outlined above that Mr. Ahmed meets not only the statutory criteria set out in section 753(1)(a)(i) but also in sections 753(1)(a)(ii), and 753(1)(b). While the Crown need only meet its onus beyond a reasonable doubt under one of those subsections, I find that Mr. Ahmed meets the statutory criteria under all three.

83I refer to the elements of each of those sections with italics added for emphasis.

84Mr. Ahmed has been convicted of a “serious personal injury offence” as defined, namely the predicate offence of sexual assault with a weapon. (s. 753(1)(a))

85Firstly, I find Mr. Ahmed “constitutes a threat to the … safety … of other persons” on the basis of all of the evidence summarized before, including his past conduct, criminal convictions, institutional misconducts, the predicate offences and the expert evidence, because all of that evidence establishes “a pattern of repetitive behaviour … showing a failure to restrain his behaviour and a likelihood of causing … injury to other persons… through failure in the future to restrain his behaviour.” (s. 753(1)(a)(i))

86Secondly, I find Mr. Ahmed “constitutes a threat to the … safety … of other persons” on the basis of all of the evidence summarized before, including his past conduct, criminal convictions, institutional misconducts, the expert evidence and the predicate offences including more recently the predicate offences committed while in custody, because all of that evidence establishes “a pattern of persistent aggressive behaviour … showing a substantial degree of indifference” on his part “respecting the reasonably foreseeable consequences to other persons of his behaviour.” (s. 753(1)(a)(ii))

87Thirdly, by his conduct in relation to his two convictions for sexual assault and the 2009 uncharged sexual assault, when considered together with all of the other evidence and in particular the expert evidence with respect to his personality disorder(s), substance use disorder(s) and high risk of serious sexual or violent recidivism, I find Mr. Ahmed, “has shown a failure to control his sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his sexual impulses.” (s. 753(1)(b))

88As a consequence, I find Mr. Ahmed to be a dangerous offender under each of these three subsections.

Length of Sentence

89The relevant Criminal Code sections are the following:

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.

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.

90The expert evidence is unanimous that Mr. Ahmed presents as a high risk of future serious sexual or violent recidivism. I accept that expert opinion evidence as persuasive.

91The issue comes down to whether on all of the evidence the court can be satisfied that “there is a reasonable expectation that a lesser measure” of a determinate sentence followed by a long-term supervision order not exceeding 10 years or, another sentence, “will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.” (s. 753(4.1)) [emphasis added]

92I agree, as submitted by Dr. Fedoroff and Amicus Curiae, that this issue requires serious consideration.

93Dr. Klassen has stated, at p. 55 of his Report, “I don’t believe that there is anything in this gentleman’s behavioural or management history that could be relied on to provide psychiatric support for …[a] reasonable expectation that a lesser measure…will adequately protect the public against the commission” by Mr. Ahmed of a serious personal injury offence.

94Dr. Fedoroff, on the other hand, encourages the court to consider the lesser measure of a determinate sentence followed by a long-term supervision order. As I understand Dr. Fedoroff’s Report and his testimony, he is influenced in making this recommendation by the fact that Mr. Ahmed has not received any treatment to date. He is unprepared, therefore, to opine that Mr. Ahmed is untreatable because of no evidence in this regard, and he hopes that by virtue of the encouragement and motivation of a determinate sentence, Mr. Ahmed will turn towards appropriate treatment available in the correctional facilities. After lengthy treatment, Dr. Fedoroff is essentially saying, Mr. Ahmed’s high risk of recidivism might be reduced.

95Amicus Curiae urges the court to give serious consideration, as I agree it must, to the possibility that a less restrictive sanction than an indeterminate sentence would adequately protect the public in all of Mr. Ahmed’s circumstances. She asks the court to consider as noteworthy that Mr. Ahmed has voiced a desire to both Dr. Klassen and Dr. Fedoroff to receive treatment and work on change. She submits it is entirely possible and would seem logical that given the seriousness of the situation for Mr. Ahmed, his older age and possible growth in maturity, that this expression of willingness and desire to engage in treatment is a genuine one. She also highlights the empirical evidence set out by Dr. Klassen and Dr. Fedoroff on age-related decline in recidivism.

96Amicus Curiae suggests a determinate sentence requiring Mr. Ahmed to serve a further 10-15 years in custody, followed by the maximum long-term supervision order of 10 years be considered. This would put Mr. Ahmed in the community at an age of 42-47 years with the long-term supervision order taking him to the age of 52-57 years. This would also address the concern, she submits, raised by Dr. Fedoroff that individuals on an indeterminate sentence are not provided the same access and opportunities for treatment because they do not have an imminent release date that the institution has to take into consideration.

97Dr. Fedoroff’s opinion was that Mr. Ahmed’s expression to him of wanting to make himself better was genuine, particularly when referencing his daughter. I accept the submission from Amicus Curiae that as Dr. Fedoroff assessed Mr. Ahmed approximately one year after Dr. Klassen had seen him, this seeming change in his willingness to engage in treatment could represent a positive change in his attitude, arising out of a growth in his maturity. Based on all the evidence on this sentencing hearing, however, I can only conclude that this remains a speculative hope based only on words from Mr. Ahmed, without any evidence of engagement in meaningful change and without any evidence that with a new attitude, treatment might help him manage his behaviour in the community: R. v. H.B., 2011 ONSC 1413, [2011] O.J. No. 1049 (Ont. S.C.J.) at para. 122, referring to R. v. Simon (2008), 2008 ONCA 578, O.J. No. 3072 (Ont. C.A.).

98This conclusion is also the essence of Dr. Klassen’s opinion on this issue as agreed with by Dr. Fedoroff in his testimony and as stated at pp. 53-54 of Dr. Klassen’s Report:

With respect to treatment, I note that this gentleman indicates that he would like to receive treatment for sexual offending, and substance abuse. I would parenthetically submit that this gentleman’s true appreciation of his characterological (personality) difficulties remains quite limited or superficial, despite his ability to use treatment language (“personality disorders”) with the undersigned…While it’s certainly true that this gentleman has not received the most extensive treatment (that offered at CSC), I think it likely that there will be continued challenges with treatment…While he now indicates that he would like to receive treatment, this gentleman has, on quite a number of occasions, apologized, and expressed a willingness to engage in self-change and/or different lifestyle. Given his rapid return to a criminal lifestyle and offending, this would appear to have been tactical; thus far, this has not materialized.

99Amicus Curiae asks me to take into account the effect on Mr. Ahmed of his many transfers from institution to institution and primarily his incarceration in detention or remand centres where little or no treatment is available. Mr. Ahmed has said these frequent transfers have been stressful and disruptive to his ability to stabilize and work with treatment programs. As Amicus Curiae has also pointed out, however, Mr. Ahmed chose not to call any evidence on his sentencing hearing in this respect and these assertions by him are noted but remain untested and, consequently, unable to be accorded any significant weight.

100I understand the basis for Dr. Fedoroff’s recommendation and appreciate his empathy for Mr. Ahmed who, for reasons no doubt related to his personality disorder(s) and his failure in “the major tasks of adulthood” as commented on by Dr. Klassen, has put himself in a situation substantially devoid of any treatment to date.

101However, as in other cases (R. v. G.L., 2007 ONCA 548, [2007] O.J. No. 2935 (Ont. C.A.) at paras. 40-44; R. v. McCallum, [2005] O.J. No. 1178 (Ont. C.A.) at para. 47; R. v. Higginbottom, [2001] O.J. No. 2742 (Ont. C.A.) at para. 26; R. v. Poutsoungas, [1989] O.J. No. 1033 at pp. 1-2 (Ont. C.A.); R. v. Grayer, 2007 ONCA 13, [2007] O.J. No. 123 (Ont. C.A.) at para. 67; R. v. H.B., supra, at para. 123; R. v. Charbonneau, [2007] O.J. No. 3609 (Ont. S.C.J.) at paras. 210-211) where expressions of hope cannot by themselves be evidence of a reasonable expectation that a determinate sentence will adequately protect the public, this is one of those cases. There is, I agree with Dr. Klassen, no evidence to support this hope. We all wish it were otherwise. As Dr. Fedoroff has stated, Mr. Ahmed presents as a very worrisome individual.

102The primary focus in the determination of an appropriate sentence for Mr. Ahmed as a dangerous offender is the protection of the public and not his rehabilitation: R. v. G.L., supra, at para. 70.

103Based on all of the evidence on this sentencing hearing and without any evidence of Mr. Ahmed’s treatability beyond a hope for change, I cannot risk the safety of the community by imposing at this time a speculative pre-assessed timeline for Mr. Ahmed’s rehabilitation by way of either a determinate sentence or a determinate sentence followed by a long-term supervision order.

104To couch this conclusion in the words of section 753(4.1), I am not “satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure [of a determinate sentence] will adequately protect the public against the commission by the offender of murder or a serious personal injury offence”.

105With this focus on the protection of the public, I can only conclude that it is now for Mr. Ahmed to demonstrate to and satisfy the federal correctional authorities as to his rehabilitation so that he might be released to the community sometime in the future. I leave the timing of his release to the Parole Board of Canada.

106I conclude by sentencing Mr. Ahmed, as a dangerous offender, to an indeterminate sentence in respect of the five predicate offences.

107Pursuant to s. 760 of the Criminal Code, I order the following be forwarded to the Correctional Service of Canada for information: a transcript of Mr. Ahmed’s pleas of guilt before me and his subsequent sentencing hearing including his application to strike his guilty pleas that was dismissed as abandoned and his request to make an application under s. 11(b) of the Charter that was dismissed; a copy of Exhibit 11 containing all of the Crown’s evidence; a copy of the Reports filed by Dr. Philip Klassen (Exhibit 9) and Dr. Paul Fedoroff (Exhibit 17) at the sentencing hearing; a copy of the Written Submissions of the Crown; a copy of the Written Submissions of Amicus Curiae; a copy of these Reasons for Sentence.