R. v. States, 2017 ONSC 4023
CITATION: R. v. States, 2017 ONSC 4023
COURT FILE NO.: CR-14-70000117-0000
DATE: 20170629
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and -
CHRISTOPHER STATES
Respondent
Glen Crisp, for the Applicant
Anik Morrow, for the Respondent
HEARD: April 10-May 9, 2017, at Toronto, Ontario
Michael G. Quigley, J.
Reasons for Judgment
Overview....................................................................................................................................... 2
Background on the Offender and this Proceeding.................................................................. 4
Personal and Family History.................................................................................................. 4
Substance Use History............................................................................................................ 8
Psychiatric History................................................................................................................ 10
Medical History..................................................................................................................... 12
Institutional History.............................................................................................................. 12
Evidence and Findings on the 2013 Predicate Offences...................................................... 14
Evidence of other Witnesses.................................................................................................... 22
Institutional and Corrections records, documents and witnesses:................................. 22
(i) Brad Tamscu...................................................................................................................... 23
(ii) Sherri Rousell.................................................................................................................. 25
(iii) Rates of Recidivism for offenders on LTSOs............................................................ 29
Cecil States............................................................................................................................. 31
Psychiatric and Psychological Expert Evidence................................................................... 31
Introduction............................................................................................................................ 31
Dr. Pearce’s evidence and opinion..................................................................................... 35
Dr. Gojer’s Evidence and Opinion...................................................................................... 40
Dr. Pomichalek’s Evidence and Opinion........................................................................... 45
Findings Relating to the Evidence of the Witnesses............................................................. 48
Analysis and Findings on the Dangerous Offender Criteria................................................ 52
Legislative Provisions Applicable in this Case................................................................. 52
The question of “pattern”..................................................................................................... 57
Character of the predicate offence...................................................................................... 60
Character of past offending conduct.................................................................................. 64
Does Mr. States have a personality disorder or a substance use disorder?.................. 71
Conclusions on the application for a dangerous offender designation......................... 75
Findings on risk and treatability.............................................................................................. 75
Sentence on the index offences............................................................................................... 85
Disposition.................................................................................................................................. 87
Overview
[1] On September 19, 2014, following his trial by judge and jury, Christopher States was found guilty of aggravated assault, assault with a weapon, possession of a weapon for a purpose dangerous to the public peace, and failure to comply with the terms of the probation he was on at the time the offences occurred, contrary to sections 268, 267, 88(1) and 733.1 of the Criminal Code[^1]. Mr. States testified in his own defence at that trial. He acknowledged that he had stabbed Franklin Henry at the end of the altercation that occurred on George Street in Toronto on June 18, 2013, but testified that he had acted in self-defence. The jury found him guilty of those charges. Their verdict shows that they rejected that defence.
[2] Mr. States was remanded for sentencing following conviction, but the Crown gave notice of its intention to commence a dangerous offender application against him. After being notified of that intention, the Crown sought an order for Mr. States to be assessed under s. 752.1 of the Code. I granted that order on May 22, 2015. Dr. Mark Pearce was designated to perform that assessment, and his report was delivered and filed on August 21, 2015. Following that assessment the Attorney General formally approved that this sentencing hearing should proceed as a dangerous offender application under Part XXIV of the Code by notice dated November 30, 2015.
[3] As is the case on most dangerous offender applications, there was an enormous volume of documentary evidence tendered. It covered 24 years from Mr. States’ first convictions in 1989 through to the predicate offence in June 2013. His criminal record consists of some [90] separate offences and [57] separate sentencing entries. The evidence also included all of the evidence that was before the jury on the aggravated assault offence against Mr. Henry that is specified as the predicate offence for purposes of this proceeding. Beyond that, some transcripts of the sentencing hearings from earlier more recent offences were available, but for the most part, despite their imperfections[^2], police synopses were relied upon to convey the “gist” of most of those earlier offences, since no transcripts were available to record the taking of Mr. States’ guilty pleas for many of those occurrences.
[4] The documentary evidence tendered on this application included this offender’s voluminous corrections records from both the Ministry of Community Safety and Correctional Services of Ontario (MCSCS) and from the Corrections Service of Canada (CSC). As well, it included extensive Crown and defence expert psychiatric and psychological evidence. The bulk of this information from the Crown’s perspective is contained in Exhibit 1 filed on this application, a CD-ROM that contained most of the Crown’s almost 4,000 pages of evidence. That was supplemented by 28 Exhibits filed by the Crown and the defence during this 4-5 week hearing, and by the lengthy testimony of two corrections officials, two expert forensic psychiatrists and one expert forensic psychologist, and, finally, the evidence of Mr. States brother, Cecil States.
[5] There are two core issues on this dangerous offender application. The first is whether I find beyond a reasonable doubt that Mr. States is a “dangerous offender” as defined in the Code, as the Crown contends. The defence position is that the evidence does not establish beyond a reasonable doubt that Mr. States meets the statutory requirements to be found to be a dangerous offender.
[6] The second issue, if he is found to be a dangerous offender, is whether Mr. States should receive an indeterminate sentence as sought by the Crown or whether his risk of reoffending can be safely managed going forward such that he should instead be sentenced to a determinate sentence of incarceration to be followed by a Long Term Supervision Order (LTSO), as sought by defence counsel.
[7] Beyond the statutory criteria, the foundation of the Crown’s claim that Mr. States is a dangerous offender who should receive an indeterminate sentence is its contention that Mr. States has a treatment-resistant personality disorder. This position is based predominantly on the opinions of Dr. Pearce.
[8] In contrast, Dr. Milan Pomichalek and Dr. Julian Gojer are of the opinion that Mr. States does not have a personality disorder strictly defined within the parameters of the DSM-5, but instead exhibits personality disorder traits that are secondary to and caused by a serious twenty-five year substance use disorder that commenced in his early adulthood. Unlike an actual psychopathic personality disorder of the type to which Dr. Pearce alluded in his final opinion, and which Dr. Pearce acknowledges is borderline and does not meet all of the psychiatric diagnosis requirements, a substance use disorder of the type diagnosed by Drs. Pomichalek and Gojer is considerably more amenable to treatment, and thus the risk of reoffending to the public is reduced.
Background on the Offender and this Proceeding
Personal and Family History
[9] Born in 1968, Mr. States is presently 49 years old. The following chronology of his life and family background is largely derived from the expert report of Dr. Julian Gojer. I have preferred Dr. Gojer’s recount of Mr. States prior history to the history set out in Dr. Pearce’s report because I find it to be more complete and detailed, and it draws on a wider pool of sources. Accordingly, in my view, it provides greater insight into the background and antecedents of this offender.
[10] Mr. States was born and grew up in Digby, Nova Scotia. He was one of a set of twins but his twin brother died at birth. He was told that his mother had a normal pregnancy with him and his birth was normal and he was a healthy child. His milestones of development were normal.
[11] He did not have any behaviour problems as a child. He was not hyperactive nor did he exhibit any inattention. He did not engage in stealing or lying, and he committed no legally, psychologically or psychiatrically notable misconduct until he was in his twenties.
[12] He has seven brothers and sisters and is the youngest of that sibline of eight. He is estranged from most of them but he sees his sister Pam, who attended the entirety of this hearing, and several other family members, including his sister Roxy, who lives in Toronto and who also attended the hearing several times. There was no history of psychiatric illness, of alcohol or street drug use, or of suicides in his family as he grew up. He has two brothers who were arrested during youth, but there was no other family history of criminality. His brother Cecil’s criminal history is interesting and relevant, but it is detailed below.
[13] His father, Arnold States passed away in July 2013. His father was both indigenous (Mi’kmaq) and black, and was born in Windsor, Ontario. He does not know the details surrounding his father’s death, but it is believed he passed due to complications with pneumonia. He does not know what work his father did. He did not have any contact with his father.
[14] Mr. States has little personal knowledge about his family tree. His paternal grandparents lived in Three Mile Plains, Nova Scotia. This was off an indigenous reserve. They were not status Indians. Mr. States’ paternal grandmother, Alta Dixon, had both indigenous and black heritage as did his paternal grandfather. Mr. States did not meet his paternal grandfather but he was close to his paternal grandmother and liked her.
[15] His maternal grandmother, Augusta Langford lived in Waymouth Falls, Nova Scotia. He visited her often and had a good relationship with her. She too was indigenous and black. Her mother, Annie Langford had indigenous heritage. Mr. States recalls meeting her when he was about 8 years old. She always wore black and he recalls her sitting in a rocking chair. His grandmother worked in Marshalltown and was raped. His mother was the product of that rape. The perpetrator was a white man named Belcher, who was never charged. Mr. States did not know him. Mr. States reported that when his mother was born, her mother, Annie Langford, was working as a cook at a Poor Farm inhabited by poor elderly people. The man who ran this place was Mr. Belcher.
[16] Mr. States’ mother was one of a set of twins but the other twin died or was killed. His mother, Marion Langford was a school-teacher and taught segregated black children for a few years in the “little black school house” in Windsor but then moved to Waymouth Falls. That was where she met his father and they married. Mr. States was very close to his mother and he regarded her as loving, kind and caring.
[17] The oldest of his siblings is Arnold, a retired glass factory worker who lives in Toronto. Mr. States has a reasonably good relationship with him. The second child is a sister Ailaine in Cape Breton, Nova Scotia. The next is Bonnie who is in Nova Scotia. After her is Roxy in Toronto. Then Russell (Rusty), who lives in Ajax with his wife and children. He works for Alcan Aluminum. Next is his sister Ellie who lives in Toronto. The next youngest was his brother, Cecil, also now living in Toronto. Finally, as noted, there is his sister Pamela with whom he has regular contact. Mr. States told Dr. Gojer that he is closest to Cecil, Pam and Roxy.
[18] Mr. States’ father left his mother after he was born. He moved to Montreal saying that he would call for her, but he left her with the children and without support and she was unable to get a divorce from him. She then met a Mr. Cromwell in Digby. He was also a black man of mixed blood. He was kind, caring and treated Mr. States and his mother well.
[19] There was no history of mental illness in the family other than one sister having an addiction. His brothers Arnold and Cecil and a sister had addictions to drugs and alcohol in the past.
[20] Mr. States experienced constant racism when he was growing up in Digby. He started school at the age of 5 years and liked attending, notwithstanding the racist abuse he endured. He was obedient and did not run away from school. His school history shows no serious behavioral problems and no history of inattentiveness or hyperactivity. Throughout elementary and high school, he was called derogatory terms like “wagon burner”, “nigger”, and “red nigger”. He recalls feeling inferior, isolated and ostracized. Sometimes the teachers would be difficult. He went to a Catholic school. The teacher said he could not be a fire fighter because there are no black firefighters. He did not believe he had much of a future. He recalled being racially insulted at school and standing up for himself, as a result of which he was suspended, but only on one or two occasions.
[21] Evidently he performed reasonably well in school and was an average to above average student. He went up to grade 12, but did not complete mathematics and then dropped out of school. He never went back to complete grade 12 mathematics, but during his time in custody on the index offence he has written his GED exam. He has also very successfully completed business courses obtaining excellent marks, made possible by a bursary through Centennial College. He has also improved his knowledge of English literature. He hopes to get into the construction and renovation business. He hopes to go to George Brown College to do a residential construction management certificate program.
[22] Mr. States had hoped to join the armed forces but one of his older brothers told him there was no future for black people in the Canadian armed forces, so instead he moved to Ontario at the age of 19 years. He lived with his brother Russell and began to work as a salesman for one year in 1987 for Comda Advertising, a marketing company. He also worked for a packaging company, in several positions, but suffered a workplace injury and required an operation, so he went back to Nova Scotia after a year in Ontario.
[23] Back in Nova Scotia he worked at an IGA grocery store in Digby for about 9 months, then at a Sears store and then for Baxter Milk. He had these three jobs at the same time over a period of 9 months to a year. He came back to Ontario when he was 20 and stayed again with his brother Russell. On his return, he worked for a year with Canadian Bonded Credit as a bill collector. He had to leave that job because his brother’s family was expanding and he could not stay there any longer, so instead moved to Mississauga to live with his sister, and changed jobs. Then he worked for Can-Collect National Recovery for 6 months, but he left that position, as the company was not doing well. One day his sister had an argument with him over him leaving the house door open and asked him to leave. So at 21 he found himself living on the streets.
[24] It is important in these proceedings that Mr. States was never in trouble with the law when he was growing up. His first offence was in 1989 at 21 years of age. He was living on the streets when he met a woman named Venus. They started a relationship. She was a prostitute and abusing drugs. He lived with her for a month and learned of her activities during that time. His first offence was committed with her. He had been introduced to crack cocaine and then began using it with her just before they were both charged with having committed a fraud.
[25] Mr. States claims that she tricked him into using a credit card that did not belong to them. He said that he was naïve at that time. When he told her that he wanted to break up with her after being charged, she evidently clawed at his face. Some time later, he was walking away from her on the street when she came up behind him and stabbed him in the chest over the heart area. He was taken to St. Joseph’s Hospital. The police investigated but were unable to find Venus and charges were never laid. The stab wound was serious, punctured a lung and was potentially life threatening. He recalls being depressed at that time as he had no place to live and he did not want to tell his family what had happened. Shortly after those events, Mr. States began to use crack regularly. He also began drinking more. He ran afoul of the law again, but then got another job and moved in again with his sister, Pam, in Mississauga. He worked for the collection house for 6 months.
[26] During this time Mr. States met a woman at church and began dating her. This woman, Mary Guillaume, was married but said that she was divorcing her husband. However, Ms. Guillaume’s husband threatened Mr. States, so he left Toronto and moved back to Nova Scotia. He stayed there for about a year. Ms. Guillaume followed him to Nova Scotia. They lived together with his mother briefly and then moved to an apartment on their own. Ms. Guillaume had two children who also lived with them. He began to work in forestry, cutting trees, and also worked on scallop boats. However, Ms. Guillaume then moved to Toronto and left him on his own. He told Dr. Gojer that after leaving Venus, he was sober and not doing drugs or alcohol. Then he got into trouble again when he and his brother had an altercation over comments the brother had made about Ms. Guillaume. Mr. States was charged with threatening his brother. He pled guilty.
[27] After being released, Mr. States moved in with a friend and began drinking and doing crack with him, but he was not able to find work, so he left Nova Scotia after six months and moved back to Toronto. He stayed again with his sister, Pam, but was charged two days later with trafficking in cocaine. He said that an undercover officer offered him $20.00 for drugs but he claimed no drugs actually changed hands. He was found guilty. At that time he also had an outstanding break and enter charge in Nova Scotia. He claimed he was with a male who committed the break and enter and that he was charged with being a party to that offence. He pleaded guilty to both this offence and the offence of having threatened his brother and was sentenced to one year in jail. While he was in jail, Ms. Guillaume contacted him again and told him she wanted to make their relationship work.
[28] He served this sentence in a federal facility in Nova Scotia, because the province did not maintain a separate corrections system at that time. That was his only stay in a federal corrections facility to the present. For all of his extensive record of offending, he has never received a penitentiary sentence, and has always served his sentences in provincial remand or reformatory facilities. After serving this sentence, he transferred to Toronto for parole. He seemed to recognize that he had a problem and began to see a psychologist for counseling, Dr. Pollock. During this time he was employed by the Collect Com Collection Agency and he stayed with them for two years assisting with their litigation of debt claims.
[29] He changed his job again and started to work for Total Credit Recovery for 3 months, but then he ran afoul of the law again for failing to pay for a taxi after he felt that the taxi had taken the long route home and since he did not have the money to pay for the fare. While he was in jail on this offence, his mother passed away but he was not permitted to attend the funeral. He told Dr. Gojer that the loss of his mother deeply disturbed him and he recalled being depressed for some time after she died. He expressed his regret for not making more of his life when his mother was alive.
[30] This appears from the evidence to have been a turning point in Mr. States’ criminal antecedents. After being released, he and Ms. Guillaume were living together again after he moved back to Toronto from Nova Scotia. They had a son together; however, Mr. States did not work for some time as he was frequently in trouble with the law. He broke up with Ms. Guillaume for about 5 months before getting back together. He got another job with Collection House in 1993 for about 2 months but then was not allowed to work because of outstanding charges. He lost that job and has not had a regular job since that time, although he has done work over the years through temporary agencies, doing construction, roofing, and other labour jobs.
[31] It is important to this application that from the time when he was 25 years of age in 1993 and onwards, Mr. States became more deeply immersed in drugs and alcohol. Ms. Guillaume left him at about this time and he recalls that the end of their relationship left him more depressed, lonely and isolated.
[32] Despite a number of failed relationships, Mr. States has no history of domestic or sexual violence or offending of any kind. By 1994, however, Mr. States was deeply into drugs and alcohol and he was also unfaithful to Ms. Guillaume, ultimately causing Ms. Guillaume to leave Mr. States and end the relationship. She has now married, is presently living in Brampton, and has established her own cleaning company. Mr. States has kept in touch with his son, Christopher Jr., who is 25 years old. His son was going to York University and played varsity football but then did not continue. He now hopes to return. Mr. States regrets not being in his son’s life. In 1998 Mr. States dated a girl named Tonya for about 8 months. This relationship also did not work out as he was still doing drugs. He has not formally dated any other women since that time but has had several casual sexual encounters over the years.
Substance Use History
[33] Mr. States drug use began only in his early 20s. Over the years he has used Tylenol #3’s, OxyContin 20 mg tablets, Percocet, crack cocaine, cocaine, and marijuana. His drug of choice has always been crack cocaine because it was readily available.
[34] He started using cocaine at the age of 21 when he met Venus and she introduced him to cocaine and crack cocaine. He felt that he was hooked instantly. He began smoking crack cocaine three times a week. This quickly turned to a daily habit. He did not pay for the drugs, as he was not working at the time. Venus would supply him with drugs. He lived with Venus for approximately one month but after parting company with her, he stopped using the drug for a year.
[35] It was shortly afterwards that he met Ms. Guillaume and while he was in this relationship he also found meaningful work and remained sober. About a year later he moved to Nova Scotia and while living with a friend, Eric, he began drinking alcohol with him. He also started smoking marijuana and returned to using crack cocaine. He was 23 years old at the time. He and Eric would drink beer and rum on a daily basis, going through 4 beers and 6 “shots” of alcohol a day, however, Mr. States told Dr. Gojer that when he put his mind to it, he was able to abstain for a few months.
[36] In 1994, after Ms. Guillaume broke up with him and his mother died while he was incarcerated, his use of alcohol and cocaine escalated significantly. Looking back he feels he was very depressed and used cocaine and alcohol to cope with the loss of his mother and his marriage.
[37] Up until 2012, Mr. States smoked crack cocaine four times per week, using at least 0.5 grams each time. He also engaged in binge drinking, drinking hard liquor and beer. He drank daily for months. Binges would last anywhere from 3 to 7 days. Most days, his first stop in the morning was the liquor store to buy alcohol. He would drink all day. He has suffered from black outs, memory lapses, tremors and cold sweats when drinking or going through withdrawals. He has also suffered from delirium tremens, and on one occasion had a withdrawal seizure. He took his last drinks, several beers, when attending a baseball game at Moss Park earlier on the day of the predicate offence. He last used cocaine in November 2012.
[38] Mr. States acknowledged that he would often drink and use cocaine, using one or the other to soften withdrawals. He was living a “fake life” and happy in his “hole”. He was smoking crack cocaine, drinking, and had a circle of “fake friends” and casual girlfriends. He kept company with shallow and superficial people who abused substances heavily. Looking back he recognizes that when his mother died, when Ms. Guillaume left him and when he had pain from cervical spine disease (C1 through C7), degenerative disc disease, and arthritis and back pain, he would abuse more drugs and alcohol to cope with his pain and depression.
[39] For many years Mr. States placed his drinking and habitual drug use above his family and personal responsibilities. He recalls missing many family Christmas dinners to instead be with his drinking friends and females he hardly knew. Looking back, he reportedly regrets this lifestyle. He recalls that he would not want to go home to his family when drunk or intoxicated because he respected them too much to let them see him in that condition. He was ashamed of the person he had become and was afraid of their rejection. This would lead to feelings of low self-worth, guilt and more drinking and substance use.
[40] Mr. States admits that virtually all his offences were committed when intoxicated with alcohol or cocaine and or as a result of trying to support these habits, but he also acknowledges having had anger management problems that would become worse and less controlled when he drank. He also admits to having been sensitive to criticism and to being disrespected. He did not like to be grabbed by anyone and would retaliate by insulting them back, or hitting or fighting. He acknowledges being belligerent when drinking, and that the substances he abused caused him to feel “bigger, taller and stronger”, and gave him more courage to fight back.
[41] In spite of this continuing state of intoxication and withdrawal from substance abuse, he would nevertheless see his son at least three times a year at his sister’s home. He would sober up for those occasions and buy his son gifts and clothing for the visits, but as soon as those visits were completed, he returned to drinking and smoking crack cocaine. He was often homeless and “couch surfed”, as he described it to Dr. Gojer, staying at the homes of other drug addicts. Mr. States claimed to recognize in hindsight that these people were not his friends, and his real friends who were back home in Nova Scotia did not use drugs.
[42] In 2005, while incarcerated for 5 ½ months for one of his innumerable offences, Mr. States attended the Algoma Treatment Centre in Sault Ste. Marie and attended their substance abuse programming daily. He attended anger management courses and life skills programming courses at that time as well.
[43] During his pre-trial and pre-sentence incarceration for the index offences, Mr. States has regularly been attending Narcotics Anonymous and Alcoholics Anonymous meetings. He has also sought treatment and training and attended “an impressive” number of programs, as Dr. Pearce described it, including Anger Management, Cognitive Skills, and Anti-Criminal Thinking. He has completed the John Howard Society “HIPP” program that targets aggression, racism, life skills and substance use. He has completed two substance abuse programs and an anger management program with probation and parole program facilitators.
[44] Mr. States has also completed substance abuse programming on four occasions, the Healthy Relationship program twice, Leisure Time programming twice, Life Skills twice and the Anger Management program four times with a social worker. He has participated in one-on-one counseling sessions with workers from the Salvation Army, and he has also attended Native smudges and indigenous talking circles as well. To complete the list of these most recent accomplishments, he attended a number of business courses and completed them all very successfully.
Psychiatric History
[45] All of the experts agree that Mr. States has never been diagnosed with a major mental illness. He has never suffered from any paranoia or hallucinations when not under the influence of drugs or alcohol; however, he has had paranoid ideas when using cocaine, believing that he was being followed or being targeted. He admits that when he used crack cocaine it would trigger paranoic reactions, causing him to be more likely to act in a violent manner. He has experienced hallucinations when withdrawing from alcohol abuse, including having experienced a withdrawal seizure.
[46] In July and August of 2016, while incarcerated on these offences, Mr. States was housed in a cell with two other men and became involved in a cell fight. He sustained an eye injury, a broken facial bone, and several contusions. He was stabbed with a pencil. Some of his facial bones were fractured. He suffered from nightmares following this incident and began seeing blood on the walls. He was very agitated and recalls being easily startled as well. He was seen by a psychiatrist in the jail and told that he had a Post Traumatic Stress Disorder. The symptoms cleared up within a month. He has no problems with his appetite or his sleep, although Mr. States reports being a light sleeper since his incarceration at Toronto East Detention Centre. There is no evident history of any anxiety, panic attacks, mania, or obsessive-compulsive symptomology.
[47] Mr. States told each of the experts who assessed him that he has always struggled with low self-esteem. He believes this originated during his school days in Nova Scotia when he felt ostracized by his peers for being black and aboriginal. He did not fit in, and felt a constant need to prove himself to others. During this time he claims to have come to have a sense that he would not amount to much and that he would not be liked or accepted by others.
[48] Against that background, his use of drugs and alcohol gave him a false sense of acceptance, improved his self-esteem temporarily, even if without foundation, and gave him a sense of confidence, which he knows was false. At the end of his frequent binges, he would feel dejected over what he was doing to himself, his self-esteem would plummet, he would hate his lifestyle and friends and his involvement in the drug culture, and he would become increasingly depressed. While self-destructive, in those circumstances he quickly again resorted to cocaine and alcohol to assuage his negative self-perception, improve his mood, and elevate his confidence. Looking back he feels that for most of his early adult life, he was not living in reality but was immersed in a subculture where his own identity and origins did not matter.
[49] Over the years, Mr. States has acquired several scars on his face in street fights and this has added to a negative view of his image. It is only in the last 4 years since he has been incarcerated has he had time to reflect and look back on his life. He has had many opportunities to use drugs or to drink while in custody over the past four years, but he has avoided all prohibited substances. He has even become averse to taking painkillers for his degenerative spinal condition for fear of becoming addicted to them.
[50] Instead, he has learned to use gentle exercise and yoga to manage his pain. He is optimistic that he has beaten his dependency on drugs but wants to have counseling for it and do what he can to ensure he will not relapse. He is open to being required to take Antabuse, which stimulates a severely negative physiological reaction in former alcohol abusers if they dare to take a drop.
[51] Mr. States recognizes that for the last 40 years he has tried to run away from who he is, and feels better at having come to grips with that reality and the substance abuse that has accompanied it. He feels more accepting of himself at this time and told Dr. Gojer that he now experiences calmness within. Not surprisingly, he is worried about the outcome of this application and acknowledged that it is causing him anxiety, albeit from my perspective on the dias, he has been totally polite and pleasant, seemingly positive and alert on all of the very many occasions over the past four years when he has appeared in the prisoner’s box front of me.
Medical History
[52] Mr. States reports and the Corrections facilities records show that he has suffered from back pain since 1997. He was diagnosed nine years ago with arthritis, degenerative disc and cervical spine disease. He suffers from sciatica and has experienced muscle atrophy in his left calf and shin and neuropathology that causes his left foot to cramp constantly and feel numb. He attended a pain clinic where spinal injections were recommended, presumably of cortico-steroids. , but Mr. States has resisted receiving such injections. He has been advised that he may require spinal surgery to address these symptoms of peripheral neuropathy. He is currently waiting to consult with a neurosurgeon regarding his back. He has several bulging discs and cervical spine disease from C1 to C7 and has experienced chronic pain for the last 20 years. He also has bad ankles and suffers from sciatic nerve pain. There are two institutional injury entries. Injuries were noted on admission on 2013, the injuries to his thumb and hand that arose out of the predicate offence, and injuries were sustained in August 2016.
Institutional History
[53] Although Mr. States has spent roughly half of his life in and out of provincial jails, he has never served a penitentiary sentence. He has had many fights in custody over the years, but the records confirm that most of them have involved petty issues related to items being stolen from him, perceiving that he was being disrespected, or as a result of being pushed or challenged. These have hardly been incidents of true violence, of the kind that is the focus of a dangerous offender application. While he acknowledges having been rude to guards on occasion, he is insistent that he has never assaulted a guard.
[54] Mr. States has never been cited for use of drugs or alcohol when in custody. He has never made home-brew in jail, but he has been caught being in possession of tobacco. In the past, before this current period of incarceration, he acknowledges having fallen back to drugs and alcohol abuse within a few weeks of release.
[55] The records plainly show that Mr. States has lived a substantial portion of his life either in institutions or on the street. Confrontations often occur in jails where inmates may feel the need to defend themselves. However, as Mr. States recalls, and as confirmed for the most part by the institutional records, most of his institutional misconduct issues have resulted in a light punishment.
[56] Mr. States has not had any problems with drugs or alcohol since 2013 when he went into custody on these matters and he was insistent to each of the three experts who assessed him that notwithstanding making similar claims in the past, he now finally feels motivated to change and as even Dr. Pearce acknowledged, has been taking “impressive” steps to move in a new direction since these offences arose. While the opportunity for doing drugs unfortunately always exists in custodial facilities, Mr. States has been able to abstain now for almost four years. As mentioned, his efforts to avoid addictive substances has gone so far as to cause him to also abstain from consuming prescription drugs to ease his arthritic and neuropathic pain because of his fear that such pain drugs have the potential for addiction.
History of this Proceeding
[57] After the Crown commenced this dangerous offender application, I ruled that it had met the standard established for an assessment under s. 752.1 of the Code.[^3] I remanded Mr. States for psychiatric assessment by Dr. Pearce of the Centre for Addiction and Mental Health (CAMH). Dr. Pearce’s assessment report of Mr. States is dated April 21, 2015, more than two years ago. On November 30, 2015, the Attorney General of Ontario issued his approval for proceedings to be instituted to have Mr. States declared a dangerous offender under s. 753 of the Code.
[58] It is necessary to comment briefly on the delays that preceded the commencement of this hearing. I am well aware of the admonishment of Code J. in R. v. Gibson[^4] that these proceedings should not be permitted to be delayed unduly, but in this case, the delays were entirely due to events that I am satisfied could not have been avoided. Those delays were due principally to Mr. States’ change of counsel and the very busy and demanding schedules of both defence and Crown counsel.
[59] Shortly after being found guilty and being convicted of the index offences, Mr. States terminated his relationship with his trial counsel, Mr. Bliss. It took a couple of months thereafter for his retainer of Ms. Morrow to be finalized, and then the matter proceeded for a hearing on whether an assessment should be ordered under s. 752.1 of the Code. That order was made and the Crown’s expert’s forensic psychiatric assessment was prepared and filed. Regrettably for this proceeding, two other matters delayed the hearing of this application.
[60] First, Ms. Morrow’s schedule was very busy at the time she was retained, as she was engaged in several lengthy matters including other dangerous offender proceedings elsewhere in Ontario, and a homicide that was scheduled for a lengthy trial. Despite a record of endorsements that show Mr. States was advised and urged to retain other counsel to permit this hearing to proceed at an earlier time, he would hear nothing of it. He has been insistent since the day he retained her that he would not allow another counsel to represent him in this matter, and happily waived any s. 11(b) Charter rights he might otherwise have been able to exercise. Mr. Crisp for the Crown was prosecuting a lengthy homicide as well, which also created periods when this hearing could simply not be scheduled. Very few windows of opportunity to schedule this matter were available when both counsels’ schedules were taken into account.
[61] There was also some delay owing to constitutional challenges that have been brought against the present dangerous offender legislative regime. On May 29, 2015, the decision of Voith J. of the B.C. Supreme Court in R. v. Boutilier[^5] declared the present form of the dangerous offender legislation to be unconstitutional. Ms. Morrow also indicated that in this case, as in several others she had ongoing, she intended to challenge the constitutionality of the legislation. A pre-trial was held before Justice Nordheimer and it was agreed that this hearing should not proceed at least until the B.C. Court of Appeal rendered its decision in the Boutilier matter, which was expected in the autumn of 2016. That decision[^6] was released on June 2, 2016, but was then itself appealed to the Supreme Court of Canada. A hearing date was scheduled for May 23, 2017, with a number of provinces and private groups seeking intervenor status. In the meantime, we had scheduled April 10 to commence this hearing for an anticipated four to five weeks.
[62] The last potential delay arose when Ms. Morrow sought an adjournment of this matter until after the Supreme Court had heard and decided the Boutillier appeal. She brought that application on March x, 2017, but I denied that request. It will suffice for present circumstances to indicate that after spending a total of almost four years in custody on these matters, and two and a half years in pre-sentence custody since the jury rendered its verdict, and bearing in mind that the pre-sentence custody Mr. States would have earned at that time was starting to get into the territory of what a likely determinate sentence could be for the predicate offences, I was unwilling to await the Supreme Court’s determination. That appeal has now been heard on May 23, and the court has indicated it will release a judgment in or about October of this year. In my view Mr. States had a right to have this matter decided before then, and if the outcome of that appeal has any bearing on the outcome of these proceedings, then he will be able to exercise appeal rights relative to this decision.
[63] This hearing finally commenced on April 10, 2017 and proceeded over five separate weeks of non-continuous court hearings. The Crown’s case concluded on Tuesday, May 2, 2017, but to avoid loss of yet another day, Mr. Cecil States testified for the defence on Monday, May 1, with the consent of both parties and with my approval. Dr. Pearce finished his cross-examination on Tuesday May 2, and from that afternoon until the end of the day on Monday May 8, I heard the evidence of Drs. Pomichalek and Gojer for the defence. Counsel were given Tuesday, May 9 to prepare their submissions, and written submissions were filed by both counsel and argument heard on Wednesday May 10 and Thursday, May 11, 2017.
Evidence and Findings on the 2013 Predicate Offences
[64] This application follows Mr. States’ conviction for aggravated assault, assault with a weapon, possession of a weapon for a dangerous purpose and failure to comply with the terms of the probation order he was subject to on June 18, 2013 when these offences occurred. The jury rejected his claim that he was acting in self-defence at the time the offences occurred.
[65] As a result of their verdicts, the minimum facts that must be accepted relative to the predicate offence are (i) that Mr. States intentionally wounded Mr. Henry, (ii) that Mr. States used a weapon, a knife, in the course of wounding Mr. Henry, (iii) that Mr. States knowingly possessed that knife for a dangerous purpose, and (iv) that as a result of these actions, Mr. States was in breach of the terms of his probation at the time of the offence.
[66] To have succeeded on a self-defence claim, the evidence needed to establish (i) that Mr. States believed on reasonable grounds that force or the threat of force was being used against him, (ii) that he inflicted the knife wound on Mr. Henry for the purpose of defending or protecting himself from that threat or use of force against him, and (iii) that his actions were reasonable in the circumstances. In finding Mr. States guilty, the jury must have been satisfied beyond a reasonable doubt that at least one of the three pre-requisites of self-defence was absent at the moment the offences occurred.
[67] As in the case of all of the other offences referenced in the evidence, there was a synopsis created of what transpired on June 12, 2013 leading to the commission of these offences. It was entitled “Agreed Statement of Facts Re: Index Offence.” It describes the facts relating to the three principal offences as follows:
On June 18, 2013, the victim, Franklin Henry, was standing outside of Seaton House located at 319 George St. in the city of Toronto. Mr. States was also outside of Seaton House, walking along George Street. Eventually two unknown black males told Mr. States to leave the area. An argument ensued. The two unknown men threw a juice bottle at him and then grabbed pieces of wood (a 2 x 4 and a broom handle) and proceeded to hit Mr. States and told him to leave the area. Mr. States eventually walked north to the intersection of George Street and Gerrard Street, backing up slowly as the two unknown individuals walked towards him staying approximately 3 to 5 feet away from Mr. States. Mr. States had a knife in his hand by the time he got to the intersection although it is unclear exactly when or where he got it from. Just before getting to the intersection, a third unknown black male became involved as well in an attempt to get Mr. States to leave the area.
At this time, an undercover officer, Sgt. John Tillsley, who was involved in an unrelated investigation became aware of the altercation that involved Mr. States. He slowly made his way closer to the group and shouted at them to stop. He yelled that he was a police officer and took out his identification and warrant card. The group of unknown men immediately stopped what they were doing and proceeded to walk away from the area. At this point in time Mr. States proceeded to stab Mr. Henry who was standing by and had watched the altercation as it continued north on George Street towards Gerrard Street. Mr. Henry suffered a superficial stab wound to his back. Mr. States immediately ran off and away from the altercation at Gerrard Street and George Street traveling just to the west of Jarvis Street on Gerrard. He threw the knife into a nearby flower garden and was apprehended by Sgt. Tillsley approximately 150 m away on Gerrard Street. The knife was found shortly thereafter.
[68] There are three important points to note about this synopsis in the context of this proceeding. The first is that, in my view, it fails in its brevity and the phraseology to accurately convey what transpired that day. It does not capture the fact evident from the evidence at trial that the events that preceded the moment of the stabbing involved a violent and sustained attack against Mr. States by the two and then three unknown black males, possibly also including the victim, Mr. Henry, as well.
[69] This is important because it not only focuses on the likely reason for the jury’s rejection of the claim of self-defence, but also because it goes to the character of the behavior that day relative to other behavior of Mr. States that is said to establish the pattern required for a dangerous offender designation. It appears most likely to me that the jury was satisfied beyond a reasonable doubt either (i) that Mr. States actions were not reasonable in the circumstances at the actual moment of the stabbing, or (ii) concluded that the knife wound inflicted on Mr. Henry was not at that moment for the purpose of defending or protecting himself from a threat or use of force against him. However, having regard to the entirety of the evidence, I find that the jury could not possibly have concluded that Mr. States did not have reasonable grounds to believe that force or the threat of force was being used against him at least up until that moment, because it is entirely contradicted by the record. This is an important distinction relative to the issue of “pattern” under s. 753(1), as compared to all of Mr. States prior offences. As Dr.’s Pomichalek and Gojer described it, it was “affective” and “reactive”, not “instrumental.” I discuss these differences and their relevance later in these reasons.
[70] The second important aspect is that while it was entitled “Agreed Statement of Fact”, it was not actually agreed to by defence counsel. I was not certain of the exact origin of this statement. It most likely originated as a police synopsis of the events. I was told that it was provided to Mr. States’ prior counsel, Mr. Bliss, although I was also told that he did not agree to the content of that statement. However, from at least the time when he was discharged and Mr. States appointed Ms. Morrow as his counsel, a point in time well before I ordered that Dr. Pearce assess Mr. States under section 752.1 of the Code, it has to have been known that the statement was not in fact agreed to by defence counsel.
[71] This second factor causes the use of that synopsis to be a significant factor in considering Dr. Pearce’s assessment and conclusions on Mr. States, as discussed further below. The deficiencies of the synopsis need not have had an impact on Dr. Pearce had he chosen to read the entire trial transcript that was provided to him, but he did not do that. He testified that he contented himself with taking account of the facts of the predicate offence as set out in the synopsis because they were “Agreed”, and seemed on their face to be just another, albeit allegedly “escalating”, example of Mr. States committing an assault involving violence. However, Dr. Pearce did not review Mr. States’ evidence at trial, or the corroborative evidence of the other witnesses at trial that plainly shows the situation was a reactive one, unlike any of Mr. States’ prior convictions. In my view, as I explain later in these reasons, this causes certain aspects of Dr. Pearce’s expert opinion, diagnosis and risk assessment to be less reliable.
[72] In contrast, Dr. Milan Pomichalek, the expert forensic psychiatrist called by the defence, reviewed the entire trial record. Similarly, Dr. Julian Gojer, the expert forensic psychiatrist also called by the defence not only reviewed the entire transcript of trial evidence, but also asked for and reviewed my charge to the jury to gain deeper insight into the circumstances of the predicate offence. As I explain later in these reasons, this difference in their respective understandings of the predicate offence and its relationship to Mr. States’ prior offences and record causes the defence experts to have a different, deeper and more profound understanding of those offences than Dr. Pearce was capable of having, based on his more superficial understanding derived solely from the two paragraph statement of facts that he read. This is an important factor that goes to my assessment of the weight that should be accorded to their respective opinions.
[73] Returning to the predicate offence itself, there were four Crown witnesses who testified in addition to Mr. States, three of whom gave direct evidence of what happened. They were the victim, Mr. Henry, Sharlene Davidson who lived at the corner of George and Gerrard Streets where the altercation reached its zenith, and Sgt. John Tillsley, the undercover police officer who came upon the altercation as it approached its critical moments. In addition to Mr. States, Eric Benoit who lived on Seaton Street at the Dixon Hall Schoolhouse, just below the corner where the final events occurred, testified on to his observations of the altercation as it progressed up the street and came to a head at the corner of Gerrard Street. In the paragraphs that follow I have summarized what transpired that day founded upon their evidence as I reviewed it with the jury as part of my final charge.
[74] After he attended a baseball game at Moss Park Armory, Mr. States came up to the corner of George and Dundas Streets and bought an order of poutine at Smoke’s Poutinerie. He was by himself on the west sidewalk. As he went up George Street, three black males on the east side came over to him. He recognized those 3 male blacks by their street names as “Frankie D” (Mr. Henry), “Big Vicious”, and “Killer.”
[75] Mr. States said that the confrontation started when Big Vicious accused Mr. States of having stolen his drug stash and Mr. States denied it. He was patted down by Killer who also took his cell phone. Mr. States claimed that the victim, Frankie D, slapped his cell phone out of his hand and that he had to pick it up from the ground. Mr. Henry described the start of the confrontation differently. He claimed that it started with Mr. States insulting him and a woman he was with on the street, and that two males in front of Seaton House yelled at Mr. States and told him to leave the area. Regardless, as Mr. Henry stated in his evidence, it was a hot early summer evening on George Street with many drug users and homeless residents of Seaton House milling about. He described the circumstances as “chaotic.”
[76] However, as I instructed the jury, the important issue was not how the confrontation started, although it is important that Mr. States does not appear to have been the instigator, but rather whether the superficial knife wound that Mr. States inflicted on Mr. Henry five to ten minutes later at the corner of George and Gerrard Streets was intentional, or an unintended consequence of Mr. States trying to flee from the altercation that developed, and whether he feared for his safety because of the threat of force that he thought was confronting him and whether or not the knife wound was inflicted in self-defence.
[77] Returning to the chronology, Mr. States continued to move up George Street and came across “Green”, one of the main drug dealers of the area, a potentially dangerous person. Green allegedly accused Mr. States of having stolen drugs from Big Vicious, but again, Mr. States denied that. Green responded by insulting him, and then Green threw a glass juice bottle at Mr. States, hitting him on the right bicep. Mr. Henry confirmed in his evidence that someone had thrown a juice bottle at Mr. States.
[78] While this was happening, Frankie D, Big Vicious, and Killer had been sitting on the concrete flower island located close to the main door of Seaton House. They were joined by another black male whose street name, because of his voice, was “Kid Lion.” Right after being hit with the juice bottle, Mr. States was rushed by the other three black males, Frankie D, Big Vicious, and Killer. Kid Lion soon joined in. It was a full frontal attack. They were looking for sticks and things to swing at him and attack him with. Mr. States claimed “Frankie D”, the victim Mr. Henry, had a mop handle that he was using as a weapon, and the other two were using two by four pieces of wood or other similar sticks that they were able to find nearby. Mr. Benoit testified, confirming this evidence, that Mr. Henry did have a broom or mop handle in his hands and that Mr. Henry did strike Mr. States with it. Meanwhile, the other assailants were looking in garbage cans and elsewhere for items to use as weapons in their attack against Mr. States.
[79] Mr. Benoit’s evidence also confirms that Mr. States did not fight back directly, but warded off their blows with his arms and hands as he backed his way up the street. Mr. States was emphatic that he did not have a weapon in his possession until he got to the corner of George and Gerrard streets, when he was able to wrestle the knife from Big Vicious and scoop it up from the ground after Big Vicious dropped it. Mr. Henry testified, however, that as the assailants moved against him, Mr. States pulled out a knife and that was when the confrontation accelerated. Mr. Benoit’s evidence contradicts this since he testified that Mr. States did not have a knife in his hands as he was backing up the street and continuing to resist the attack that was being perpetrated against him.
[80] Although people were gathering around to watch what was going on, nobody came to Mr. States’ aid. The attack continued to intensify and reached its peak when this group arrived at the corner of George and Gerrard streets. Mr. States testified that he had not fought back until that point, but that he genuinely believed these assailants were trying to kill him and that he feared for his life.
[81] When he was hit by one two by four, Mr. States was able to grab it under his left arm, yank it away from the assailant, and then lift his arm to permit the piece of wood to drop to the ground. It was suggested that was done on his left side because he was holding the knife in his right hand but it seems unlikely because it is contrary to Mr. Henry’s evidence that he was holding a knife at that time. Considering the degree of Mr. States’ fear, if he had been holding a knife in his right hand at that time, it seems more likely that he would have lashed out with the knife at the assailant who swung that piece of lumber at his left side, rather than merely grabbing it away from that person.
[82] The only evidence of Mr. States having a knife in his hand before they arrived at the corner was from Mr. Henry, who claimed to merely be an innocent bystander watching the melee, but who Mr. Benoit testified was one of the assailants. Mr. Henry also said the others were hitting Mr. States’ hands to get him to drop the knife, but there were actually no injuries to Mr. States’ hands, except for the knife cuts he received right at the moment before the stabbing occurred, so that absence of any wounds or bruises to his hands, apart from the knife slices, belies Mr. Henry’s evidence.
[83] Mr. States testified that it was Big Vicious who had a knife in his hand. He was looking around furtively for an escape route, but did not see one. Big Vicious was right in front of him, just at arms length, not more than 2 ½ feet away. Then there was a big black guy to his left, but he did not know who he was. At that moment, he claimed to have held out his hand and all of a sudden felt something hot. He looked down and realized that his thumb had been sliced by a knife.
[84] Mr. States evidence was that the cuts to his right thumb and index finger resulted from being hit by the knife when it was in Big Vicious’s possession. He denied that those wounds could have come from the folding of the knife on his hand after it was in his possession and after he had stabbed Mr. Henry.
[85] At that point, they were all gathered at the top of George Street at the northwest corner. After he saw and felt the knife, Mr. States claimed he grabbed Big Vicious’s right wrist and pulled it towards him, that caused the knife to drop to the ground and it was then, he claimed, that he scooped it up. At that point, having picked up the knife, he claimed that he tried to escape by pushing his way through the shoulder-width space that he saw in front of them, between where Big Vicious and Mr. Henry were standing.
[86] That was the moment when the knife contacted Mr. Henry on his lower back, just at the top of his buttock. The knife wound was not deep but superficial, perhaps dulled by the three layers of heavy clothing Mr. Henry was wearing, even though it was summertime. Mr. States ran west on Gerrard towards and past Jarvis Street. He was pursued by Sgt. Tillsley, who apprehended him just west of Jarvis in a small garden area next to the office building at 117 Gerrard. The undercover officer pulled his gun out and ordered Mr. States to the ground. This all happened very quickly, within a couple of minutes. The Sergeant located the knife in the flowerbeds.
[87] If this had been the extent of the evidence, perhaps the jury would have accepted Mr. States’ claim of self-defence, but plainly they did not, as their verdicts make clear. A principal reason they may not have accepted either Mr. States evidence of what transpired at the last moments of the altercation, or at least his claim that he acted in self-defence, was owing to the evidence of Sgt. Tillsley. I also conclude that his evidence must have been persuasive in causing the jury to reject Mr. States version of what transpired in the last seconds before the stabbing, and specifically note that the jury asked to have Sgt. Tillsley’s evidence replayed for them during their deliberations. So while there could be a number of reasons why they made that request, it seems fair to conclude at a minimum that the Sergeant’s evidence was important to them and that they may have relied upon it.
[88] In summary, Sgt. Tillsley’s evidence was that he was on patrol in the area of Allen Gardens for an entirely unrelated investigation when he became aware of this altercation that was moving up George Street. He heard yelling and screaming. He looked southbound towards George Street and observed 4 to 5 males, not two or three, walking northbound on George Street with two of the males walking backwards up towards Gerrard as the altercation was taking place. The map he drew positioning those people near the corner of Gerrard and George showed different locations than those that were marked on another copy of the same map by Mr. Henry. They were in the middle of the street. Two were walking backwards, one of whom was wearing a yellow LA Lakers basketball shirt. That was Mr. States. We do not know who the other person was who was observed by Sgt. Tillsley.
[89] Sgt. Tillsley said that Mr. States and the other individual were facing southbound and four or five of them in a second group were facing northbound and they were about 15 feet away. He saw that several of the persons in the larger group that was to the south of Mr. States had two by fours or two by sixes in their hands. They were moving towards the southwest corner of George and Gerrard. He heard them yelling “Get out of the area!” They were yelling at Mr. States and raising their sticks. Sgt. Tillsley decided he needed to intervene. He yelled out “Police!” in a loud voice.
[90] At that point, he testified that the four or five to the south de-escalated and moved to his left, that is eastbound toward the east side of George Street, but that he could see that Mr. States was not complying and did not de-escalate. He was not listening. Sgt. Tillsley was an undercover officer, so he was not in uniform, but he continued to announce his presence as a policeman and ordered the people to move on, but Mr. States did not respond and his agitation level did not decrease. Sgt. Tillsley was 10 to 15 feet away from the location of these individuals. He heard someone say “I will kill you”, but it is unknown who issued that threat.
[91] Sgt. Tillsley’s evidence is important because he did not know if Mr. States saw him, but he believed that he did. He saw that Mr. States had a knife in his right hand. He pulled his gun and ordered Mr. States to drop the knife. Mr. States was nonresponsive. Sgt. Tillsley described his appearance as “looking at [him] but not focusing” and paying no attention to what he was saying.
[92] Mr. States testified that he never heard anybody say “I’m a cop”, nor did he hear anybody tell the group to stop, de-escalate, and disperse because the police had arrived. This may have been true if he was in a state of fear for his life and focused directly on his assailants in front of him, and not on Sgt. Tillsley who had just arrived on scene and who acknowledged that he was 15 or more feet away to the left of Mr. States.
[93] The jury was instructed to consider whether this might reasonably have been the reaction of a person who had spent the prior 10 minutes backing his way up the street as he fended off contact with boards and sticks directed against him by a larger group of individuals and who was in fear for his life. However, while they must be assumed to have considered that instruction, they must have rejected a conclusion that the focus of the accused would have been so intently directed towards his assailants and towards trying to fend off their attack that he did not see Sgt. Tillsley, did not see the gun that Sgt. Tillsley was pointing at him, and did not hear Sgt. Tillsley yelling for the situation to de-escalate.
[94] Sgt. Tillsley marked carefully on the second map the location of the individuals when the stabbing took place, virtually mirroring the map that Mr. States marked up. He said that after Mr. States stabbed the victim in the back below his left kidney the victim dropped to the ground, Mr. States ran westward, and Sgt. Tillsley chased him. Sgt. Tillsley testified that he had not seen the victim involved before in the altercation, and thought that he was an innocent bystander, but his focus immediately prior to the stabbing was on the assailants who had been attacking Mr. States and on Mr. States, who appeared impervious to his commands to de-escalate the situation. His focus was not on the victim. After Mr. States ran westbound, as was plain from the video surveillance footage, Sgt. Tillsley followed him westbound and apprehended him on the north side of the raised flower bed located to the west of 117 Gerard St. E.
[95] Sgt. Tillsley had no recollection of any actions by the victim prior to the stabbing occurring. He frankly did not see him doing anything. That is not surprising since his focus was elsewhere. However once he observed a pool of blood on the sidewalk, he confirmed that was the location where the stabbing had taken place. In his explanation, Mr. States had been talking to somebody close to the fence near the light post. This appeared to be the individual that Sgt. Tillsley thought was associated with Mr. States. Importantly, he stated in his evidence that he never observed Mr. States being surrounded by assailants on all sides, but since he arrived late on the scene, right when the group was at the corner of George and Gerrard Streets, he would not have known if Mr. States was, as he claimed surrounded by his assailants earlier, a bit farther down George Street before they arrived at the corner.
[96] Based on all of this evidence, I find that regardless of the altercation and events that preceded the moment when the group arrived at the corner at the top of the street, the jury must have concluded that when the Sergeant ordered all present to de-escalate, and they all did except Mr. States, then that de-escalation undermined Mr. States claim that at the moment of the stabbing he could have been acting in self-defence.
[97] I find that the jury must have concluded on the evidence taken as a whole, that the altercation may have commenced as a self-defence situation at its inception and while first in progress. But equally plainly they concluded that the actual stabbing was not done in self-defence. As such, the jury must necessarily have concluded either:
(i) that Mr. States actions were not reasonable in the circumstances at the actual moment of the stabbing, given his failure to de-escalate when the situation itself had de-escalate once Sgt. Tillsley arrived on scene, or
(ii) that the knife wound inflicted on Mr. Henry could not at that moment have been for the purpose of defending or protecting Mr. States from a threat or the use of force against him by Mr. Henry, or any of the others.
[98] The jury may, on the whole of the evidence, also have regarded the force used as unreasonable in the circumstances. Any of these three conclusions would have provided a sound basis for the jury to reject the claim of self-defence as they did, and each of these conclusions was available to them on the evidence.
[99] As such, I regard the jury’s verdict as understandable and a reasonable conclusion that was open to them to reach on the evidence taken as a whole. For purposes of this hearing, however, even though the jury rejected a claim of self-defence, I find that the circumstances and altercation did nevertheless arise in a self-defence context. The conduct of the offender was reactive and affective, not instrumental, as in virtually all of his prior offences. The event itself remains aggravating because of the violence used, but on this dangerous offender hearing that aggravation must be understood and viewed through a different lens from most of this offender’s prior crimes of violence.
Evidence of other Witnesses
Institutional and Corrections records, documents and witnesses:
[100] Briefly, Brad Tamcsu and Sherri Rousell testified and entered the significant volume of institutional records contained in Exhibit 1 and also provided information, along with various information packages, relative to programming in the MCSCS and CSC correctional institutions as well as outside of an institutional setting in community based correctional centres.
[101] They both made clear that the records relied upon by the Crown were made by those whose job is to ensure that notes are made reliably and accurately and that they would be aware that they are to be relied upon by others. The Crown conceded that some of the documentation for Mr. States’ past history appear to be missing, although there is enough of an evidentiary foundation here to make clear the history of Mr. States’ institutional life relative to his ability to be supervised and/or to rehabilitate.
[102] Ms. Rousell, in particular, provided evidence as to the availability of options in the community. Most of the options noted by Dr. Pearce were noted as being capable of being followed by the CSC, but Ms. Rousell did have some concerns regarding the wording of certain conditions in relation to urinalysis and the ability to intensively supervise Mr. States at all times. For example, Dr. Pearce noted that Mr. States should be supervised when out of the community correctional facility. Ms. Rousell noted that this was not how these facilities worked and that they would be out and unsupervised at least three times a day for meals. That said, the fact remains that regardless of Ms. Rousell’s reservation on that one point, CSC has a mandate and legal obligation to provide whatever LTSO supervision requirements are imposed by the Parole Board of Canada, the body legally charged with preparing and imposing the order, and it is ultimately the Parole Board who crafts an LTSO based on the recommendations of this court and based on the evidence tendered on this hearing.
(i) Brad Tamscu
[103] As noted, Brad Tamscu testified for the Crown to identify the Ontario corrections record relating to Mr. States and to provide an outline of the programs and treatment resources that are provided by the MCSCS in Ontario facilities. He has been a senior administrator within Ontario Corrections and is well qualified to provide this information for my consideration. His resume was filed as Exhibit 2, a Program Overview document prepared for use at hearings like this as Exhibit 3 and a Handbook Information Guide as made available to inmates was filed as Exhibit 3.
[104] His evidence started from the foundational principle that the remand population in Ontario, as elsewhere, is presumed innocent. Programming at the remand stage is resource dependent and there is variation in program availability across the region. Programming is directed to the reality of detention periods. Generally the programs on offer are short in duration (1 hour) to allow for program completion during the short remand stay that is the reality for most who are in pre-trial custody.
[105] Because typical holding periods are short for the majority of the population, detainees at remand centres face obstacles in securing and completing programs beyond the one hour program model. Longer programs are dependent on third party providers. The access of those outside counselors and therapists can frequently be impeded by institutional and unit lockdowns for a variety of reasons.
[106] A provincial sentence is a sentence of 2 years less a day. Incarceration at a provincial correctional facility is certain for sentences that range between 90 days to 2 years less a day. Offenders with a sentence of less than 90 days may end up completing their sentence at a remand centre.
[107] MCSCS has a mandate to deliver programs during sentencing. Ministry programs are certified, and based on research. They have rehabilitative potential. The programs involve cognitive behavioural therapy. They address anti-criminal thinking and criminogenic factors that are dynamic in nature, such as substance abuse and anger.
[108] The Ministry delivers these rehabilitative programs at various levels. The highest or intensive level is most suited to offenders who have moved beyond the pre-contemplative stage of change, offenders like Mr. States (Transtheoretical Model of Change).
[109] The Ministry goal for program delivery is to avoid overlap in programming. When an offender has completed basic programs, he is expected to move to the next level of programming. According to Mr. Tamscu, the Ministry expects facilities to track programming completed by an offender through OTIS (the “Offender Tracking Information System”) to assist programmers at the provincial correctional facilities manage resources and move offenders to the next level.
[110] The evidence of Mr. Tamscu as it relates to program resourcing and disruption suggests a need for a detainee at remand to be determined and persistent to accumulate programming beyond the one session program level. Demonstration of that persistence and the completion of meaningful programming may evidence motivation and engagement in change.
[111] Mr. Tamscu testified that the number and nature of programs completed by Mr. States is capable of and does demonstrate his interest in change. He also explained that some of the programs completed by Mr. States are programs ordinarily given within a sentencing framework at a provincial correctional facility. Importantly to this application, Mr. Tamscu confirmed in his evidence that the programs completed by Mr. States[^7] would allow him to be a candidate for the most intensive levels of rehabilitative programming available at provincial correctional facilities.
[112] Mr. Tamscu testified that the court cannot order Mr. States to attend any one particular facility, although the court can recommend that Mr. States attend a particular treatment facility. Nevertheless, he acknowledged that if sentenced to a period of incarceration of less than two years, Mr. States would not be precluded from being accepted at Ontario Corrections Institution (OCI) or the Algoma Regional Treatment Centre (ARTC) because of his past history with these two facilities. Whether Mr. States is sent to OCI or ARTC, however, is a Ministry classification decision on which the court may only make a recommendation.
[113] With respect to his classification within the Ontario system, Mr. States does have an institutional history that includes institutional misconducts. Mr. Tamscu testified that misconducts are violations of institutional codes of conduct deemed necessary to ensure the proper and orderly management of detainees in a high turnover environment in which a wide variety of male offenders remain housed, largely for a period between 30 and 90 days.
[114] Misconducts are addressed and processed institutionally. The penalty for a misconduct varies, from a reprimand at the lowest level to a loss of earned remission being the most severe penalty. While the Crown relies upon Mr. States’ institutional history as being of the same calibre of reliability as his record of convictions and sentences, the plain fact is that institutional misconducts happen all the time and need not be proven beyond a reasonable doubt. Findings of guilt need not have long-term consequences for detainees. The defence entered a handbook explaining misconducts as Exhibit 5.
[115] MCSCS documents suggest that on March 28, 2014 Mr. States was transferred to the Toronto South Detention Center where he was believed to have been involved in an institutional misconduct consisting of threatening to commit or committing an assault on another inmate. Notwithstanding past misconducts and the misconduct of March 28, 2014, however, I note that Mr. States was nevertheless classified on April 2, 2014, in spite of those misconducts, to the Direct Supervision Unit of the TSDC. This is important relative to the significance of those events to Mr. States claimed violent criminal background because that is a unit of stable and well-behaved inmates. It is the preferred area of custody. It is a more “normalized” range where detainees and staff comingle and interact directly. Good behavior is reinforced with increasing privileges. It is considered by inmates to be the most desirable unit of detention, and one that is plainly, on Mr. Tamscu’s evidence, only available to generally compliant inmates. For all of the Crown’s efforts to claim otherwise, this shows that Mr. States probably got into no more dust-ups or donnybrooks while in custody than any other long-term inmate.
(ii) Sherri Rousell
[116] As noted, Ms. Rousell was called by the Crown to explain the CSC regime of incarceration and treatment programming. She is a senior administrator within the Toronto region of CSC and she has testified many times and is well acquainted with the CSC corrections methodology and philosophy. Her resume was introduced as Exhibit 7 and through her, the defence filed a brief of CSC legislation and Commissioner’s Directives (CDs)[^8] that also contains links and references to numerous Corrections Canada documents, some of which I refer to below in relation to recidivism risk.
[117] CSC has two separate roles when an LTSO is imposed. If the offender receives a penitentiary sentence, CSC manages the sentence. When the LTSO commences at warrant expiry (regardless of a penitentiary or provincial sentence), CSC supervises the LTSO.
[118] First, CSC manages the federal penitentiary facilities and the sentences of offenders. Ms. Rousell testified that she has never worked at a penitentiary, however she explained that if an offender was designated a dangerous offender and given an indeterminate sentence he would attend at an intake unit and be processed by CSC. Such an offender would be processed at the Millhaven Assessment Unit and would likely be housed thereafter at the Millhaven maximum-security penitentiary.
[119] If an offender were designated a dangerous offender but given a determinate sentence (either with or without an LTSO) the designation would have no impact on the administration of the sentence. The length of the determinate sentence would determine where the offender would serve his sentence. If he received a sentence of less than 2 years, he would be directed to a provincial facility. If he was given more than a 2-year sentence he would be directed to a penitentiary. If the offender completed his sentence at a penitentiary he would have access to the ordinary penitentiary programs. He would be referred to programs based on his needs as described by his offence and he would be waitlisted like all other inmates.
[120] Ms. Rousell testified that new program models have been in place at CSC since 2015. These consist of one core program for all offenders, but with separate modules that customize the program for aboriginals and sex offenders. The previous substance abuse programs at the High intensity, Moderate intensity and Low intensity levels have been eliminated, and replaced by a single program.
[121] As part of its sentencing obligations CSC also provides community programming. These serve general inmates released on parole or at statutory release, general inmates who did not do their programming in the penitentiary, general inmates that did not complete their programs in the penitentiary, and general inmates who need additional programming in the community.
[122] Offenders with an LTSO are general inmates until warrant expiry and until warrant expiry CSC is in charge of sentence management. She testified that the existence of a LTSO tends to increase the likelihood of a statutory release but not always. If a Long Term Offender is released on statutory release, the offender is most often given a residency condition to a Community Correctional Centre (CCC) by the Parole Board of Canada. If released by the Parole Board on parole or statutory release with a residency condition, the offender is sent to Kingston’s Henry Trail CCC or Toronto’s Keele CCC. The offender remains there until warrant expiry and the offender functions under the release conditions imposed by the Parole Board for the parole or statutory release.
[123] At warrant expiry, offenders for whom a LTSO is imposed receive the certificate and its specific conditions from the Parole Board. This is a separate task of the Board. To get an LTSO certificate, an offender’s file must be sent to the Parole Board of Canada, which will issue the certificate, and select and amend the conditions.
[124] CSC has been entrusted with the supervision of all Long Term Offenders in the community regardless of the length of their sentence or the location of their release (ie, from a federal or provincial custodial facility). This is a separate task for CSC. It is separate from the role of CSC as a sentence manager. CSC uses all of its community programming resources to assist Long Term Offenders.
[125] If the Long Term Offender is serving a sentence at a penitentiary or is at a CCC (as a result of a statutory release from the penitentiary), CSC will prepare a file about the offender for the Parole Board before warrant expiry. This file gives the Parole Board the CSC perspective on the offender’s conduct within CSC – so that the Parole Board can determine what conditions of release are appropriate for the particular LTSO.
[126] If the Long Term Offender is at a provincial facility, CSC will contact the provincial authorities before release and request file information about the offender to send to the Parole Board.[^9]
[127] If the offender receives a LTSO but is in a “time served” position at sentencing (and will not be sent to a penitentiary or a provincial facility), Ms. Rousell explained that CSC must scramble and collect file information from the court for the Parole Board. They must assimilate it and present it in the form of a CSC “Assessment for Decision” for the consideration of the Parole Board. Ms. Rousell testified that in a time served situation, CSC is required, as the supervisor of the LTSO, to provide a file to the Parole Board of Canada. Ms. Rousell testified that a minimum of 6-7 weeks is needed to allow CSC to collect the information and for the Parole Board to review it and issue the LTSO. However, the issuance of the LTSO is a paper decision process only. There is no hearing.
[128] Ms. Rousell testified that if the offender received a sentence of at least 6-7 weeks, CSC would encounter no difficulties in preparing a brief for the consideration and assessment of the Parole Board by the time the LTSO was required, but this is apart from whether the inmate could still benefit from intensive in-custody treatment and programming for a period of whatever sentence is imposed.
[129] Ms. Rousell was asked about the community supervision network that CSC had at its disposal for LTSOs. She described a flexible and gradual release infrastructure able to provide a custom fit for the Long Term Offender: residency at a CCC and then to a Community Residential Facility (CRF) with the opportunity to blend either with part time residency at the home of an approved support person. Gradual release to the community from a CCC commences with 2 hours of access, with a guided expansion of access up to a curfew at midnight. There is in-house supervision provided by a specialized high intensity Parole Officer that includes up to 8 formal meetings a month, and face time at the CCC during the day.
[130] Programming and counseling are made available as directed by the LTSO. Community third party programming by Narcotics Anonymous, Alcoholics Anonymous, Cocaine Addicts Anonymous or other groups, and monitoring with urinalysis or through an electronic bracelet is provided as directed by the LTSO and CSC. Any relaxation of special Parole Board of Canada conditions must be recommended and approved by CSC and must be based on the performance of the offender.
[131] Suspicions and concerns about the offender’s conduct can be addressed by special meetings with the offender and by temporary suspensions capable of lasting up to 30 days (referable to the Parole Board thereafter).
[132] CSC is only the manager of the LTSO. The LTSO is not a sentence. It is an extraordinary sentencing tool that is a creature of the Code. The LTSO begins after warrant expiry when any sentencing authority of CSC is terminated. The court imposes the LTSO, the Parole Board of Canada crafts it, and CSC carries out the Parole Board’s will.
[133] Ms. Rousell explained that the LTSO conditions are what provide CSC with the authority to direct an offender to programming and counseling. Importantly, while Ms. Rousell did not make this point, it is noteworthy that in the recent decision in R. v. Hess[^10], discussed further below, the Court of Appeal suggests that CSC cannot discriminate against other program providers (and favour only in house programming) to the detriment of the offender.
[134] Exhibit 8 provides the LTSO infrastructure. Part II of the Corrections and Conditional Release Act[^11] deals in s. 99 with conditional release, detention and long-term supervision. Long-term supervision is not a conditional release. Section 112(1) provides for the jurisdiction of the Parole Board of a province for provincial offenders. Section 134.1(1) deals with conditions for long-term supervision and s. 135(1) refers to the power to suspend the release.
[135] If there were any concern that CSC is not very well equipped to deal with violent offenders with substance abuse problems, certainly Ms. Rousell’s evidence addressed that directly as she acknowledged the majority of the population of offenders supervised by CSC are exactly those kinds of offenders.
[136] The documentary evidence supplemented Ms. Rousell’s testimony. CCCs are designed to provide a structured living environment with 24 hour supervision, programs and interventions for the purpose of safely reintegrating offenders into the community for long term offenders and statutory release offenders.[^12]
[137] CCCs are an effective alternative to incarceration, a bridge between the institution and the community that promotes successful reintegration of offenders, accommodates those on LTSOs and provides programming for residents such as life skills, substance abuse, employment counseling and crisis counseling.[^13] Ms. Rousell testified that there are psychiatric and psychology resources at the CCC’s.
[138] The CSC’s Commissioner’s Directive (CD) 719[^14] speaks to the “Conditions” under which LTSOs operate. Ms. Rousell explained that in addition to the special conditions the Parole Board imposes for the LTSO, CSC has its own standard conditions and each of the CCC’s have their own house rules.
[139] When a residency condition is imposed, it will be set for 365 days, and is then renewable yearly thereafter, although where supported by CSC staff, it can be terminated mid-stream.
[140] The parole supervisor at a CCC will review and approve an offender’s progress, as well as conduct ongoing and regular case conferences. The purpose of these meetings is to identify and confirm the most effective supervision strategy for the offender, to review and manage intelligence information about the offender, and to share information between CSC and private agencies.[^15] In cases where the Long Term Offender may experience problems, CSC staff and the parole officers are granted discretionary power to consider “additional treatment or programming to address dynamic risk”, “additional control measures and reporting and or curfew, amendments to special conditions and other interventions”.[^16] The Commissioner’s Directives also describe the mechanisms for urinalysis and electronic monitoring.[^17]
[141] Finally, it is noteworthy that research conducted by CSC shows that one third of offenders on release are aged 50 or older, and that residency conditions have increased as have conditions related to alcohol and substance abuse and avoiding certain places.[^18] It is also important to this application, as detailed in the next section, that the CSC’s statistical analysis shows that Long Term Offenders reoffended at a general level 50% less than offenders on statutory release. This information appears to contradict Ms. Rousell’s evidence on that point.[^19]
(iii) Rates of Recidivism for offenders on LTSOs
[142] In the course of cross-examining Ms. Rousell, counsel for Mr. States introduced Exhibit 8 consisting of a compilation of CSC Online Documents. I found this documentation to be very interesting and informative relative to LTSOs generally and rates of recidivism for offenders who are subjected to such orders.
[143] Insofar as s. 753(4.1) of the Code stipulates that where an offender is found to be a dangerous offender, rates of recidivism are important. Their importance derives from the fact that a lesser sentence than one of indeterminate detention may only be made where the court is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure of a LTSO and/or a determinate sentence on its own “will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.” As such, it is useful to learn what percentage of long term offenders who are or have been subject to a LTSO as a lesser sentence actually do reoffend.
[144] Correctional Service Canada (CSC) has published several research note on LTSOs. I had hoped that the statistical data might also provide insight into recidivism risk related to the age of the offender, bearing in mind that if subjected to a LTSO in this matter, Mr. States could be as old as 59 by the time the LTSO comes to an end, if the maximum 10-year LTSO were imposed. Although I could not find any age-related recidivism statistics, the following statistics are nevertheless of interest relative to historical recidivism rates and characteristics of Long Term Offenders who re-offend:
(i) Residency conditions may not be effective in managing risk.[^20]
(ii) Approximately 47 percent of offenders have had their LTSO interrupted since 1997.[^21]
(iii) Between 1997 and 2010, over 50% of offenders with LTSOs had at least one suspension within one year and approximately 25% were returned to custody at least once.[^22]
(iv) Ontario has the lowest rates of return to custody.[^23]
(v) Sexual offenders were slightly less likely to return to custody than non-sexual offenders, both with and without an offence.[^24]
(vi) Rates of return to custody within 6 months of release were significantly lower for offenders subject to an LTSO than offenders who were statutorily released.
(vii) 11.2% of non-sexual long-term offenders returned to custody within 6 months for breaching their LTSO, and only 2% returned with an offence.
(viii) By contrast, statutorily released offenders returned without an offence at a rate of 28.9% and with an offence at a rate of 7.3%. The rates are slightly lower for sexual offenders in both categories.[^25]
[145] In its own analysis, CSC concludes that it “is generally able to successfully manage these offenders’ risk in the community.” What these statistics also show, however, and not surprisingly, is that perfection is unachievable. There will always be offenders who are subjected to LTSO orders who will re-offend, but the statistics suggest that LTSO orders, properly managed, are generally successfully achieving their objective of reducing the risk of Long Term Offenders reoffending, as compared to statutorily released offenders. There may be some bumps along the way, but the program seems to be achieving its goals, and I also find it important that Ontario has the lowest national rates of return to custody by Long Term Offenders, a relevant factor given that any LTSO imposed on Mr. States would be operating in this province.[^26]
Cecil States
[146] Cecil States testified for the defence. He is Mr. States’ brother. He provided evidence of his life experience. He has a long history of substance abuse and criminal involvement. He is now 7 years sober. He is dedicated to his recovery and has filled his leisure time with family and maintenance of abstinence. His recovery routine is self-reinforcing. He is a positive support for Mr. States able to provide meaningful support for his brother and he is invested in Mr. States’ recovery and success. Cecil States testified that Mr. States is the only family member who is struggling with drug addiction. In the past Cecil failed to be persuaded by Mr. States and saw little personal desire by his brother for change, but he also testified about an observable change in Mr. States since 2014/2015 that signaled to him a decision by Mr. States to refrain from using substances. Mr. Cecil States leads a number of group meetings of substance abusers in Toronto and the GTA and believes himself to be attuned to the steps of recovery and the decisions by users that are necessary to make real change. His evidence demonstrated for me, in addition to the evidence relating to Mr. States’ sisters, Pam and Roxy, that he will have meaningful and understanding reinforcement and family support in his rehabilitation goals if he is released on a controlled basis back into the community.
Psychiatric and Psychological Expert Evidence
Introduction
[147] The Crown called one expert forensic psychiatrist to testify on this application – Dr. Pearce. The defence called two experts, Dr. Milan Pomichalek, an expert in forensic psychology and Dr. Julian Gojer, an expert forensic psychiatrist. Each of them prepared lengthy and thorough expert reports that were filed as exhibits.
[148] Dr. Pearce is an Assistant Professor in the Department of Psychiatry, Faculty of Medicine at the University of Toronto. He graduated in Medicine from the University of British Columbia and then completed specialization residency and fellowship programs in forensic psychiatry. His work is presently associated and he is connected with the Centre for Addiction and Mental Health (CAMH), where he was the Acting Lead Physician of the Forensic Outpatient Service from 2014-2015. He has given innumerable papers in his field and is a highly recognized forensic psychiatrist. I appointed Dr. Pearce in 2015 to conduct the assessment for this hearing.
[149] Dr. Pearce has testified over one hundred times, although more frequently on fitness to stand trial. At the time he assessed Mr. States two years ago in 2015, he had assessed over [50][check notes] dangerous offenders and had testified on 20-30 of those matters. He has testified in this court and the Ontario Court of Justice on risk assessments, at sentencing hearings and on criminal responsibility of offenders and accused persons. He has testified in numerous dangerous offender hearings, NCR hearings and fitness proceedings.[^27]
[150] Dr. Pomichalek holds a PhD in Clinical/Counseling Psychology from York University. From November 2002 until the present he has been a staff psychologist at the North Bay Regional Health Centre, Mental Health and Law Division in North Bay. He has a distinguished academic background as a psychologist and like his fellow experts been the recipient of awards, grants and scholarships in his field, where he also publishes widely and speaks regularly at psychology conferences.[^28]
[151] Dr. Gojer is an exceptionally qualified forensic psychiatrist who is well known in our courts. He was born in Bahrain, educated at the University of Bangalore in South India, and he holds certifications in forensic psychiatry from the Royal College of Physicians and Surgeons in both Canada and the United Kingdom. He completed his Fellowship in forensic psychiatry at the University of Ottawa in 1994 and was granted a Fellowship by the Royal College of Psychiatrists in the U.K in 2009. Dr. Gojer also holds a J.D. degree from Osgoode Hall at York University having completed undergraduate legal studies in 2011. Dr. Gojer was for many years also a staff forensic psychiatrist at CAMH and the Ontario Shores Facility. He also is an Assistant Professor of Psychiatry at the University of Toronto, and now as well, at Lakehead and Laurentian University in Thunder Bay.
[152] From 2000 until the present, in addition to being a psychiatrist at the Toronto Western Hospital, Dr. Gojer has maintained an independent private practice in Toronto doing legal and non-legal assessments for lawyers, Crown prosecutors, judges, professional bodies and other physicians and psychiatrists. He has testified in court at various levels in Newfoundland, Nova Scotia and Ontario, as well as at the Ontario Review Board, the Consent and Capacity Review Board, and at professional disciplinary hearings. He founded the Manasa Clinic for forensic psychiatry where, through a multidisciplinary team format, he provides psychotherapy to outpatient clients and sex offender groups, anger management groups and other groups as the situation demands. He also supervises psycho-educational groups for a variety of disorders, and he has a contract with Probation and Parole services to run sex offender group for 24 clients every year. His clinic employs two forensic psychiatrists, two psychologists and a general practitioner. They also have one psychologist and a social worker, who provide off-site consultations.[^29]
[153] All three experts reviewed and commented on the earlier Corrections Canada records and evaluated recidivism risk factors relating to the offender as they have changed from that time.
[154] Voir dires were conducted to determine the qualifications of both Dr. Pearce and Dr. Pomichalek to provide evidence as experts in forensic psychiatry and psychology, respectively. Dr. Gojer was accepted as an expert forensic psychiatrist without objection by the Crown given his well known extensive history as a forensic psychiatrist, testifying for both the Crown and the defence. All were accepted as experts. The precise framework of expertise I accepted for all three experts, specific to whether it was in the field of psychiatry or psychology, was as follows:
I accept Dr. [Pearce][Pomichalek][Gojer] as “an expert in the assessment, diagnosis, and treatment of [psychiatric][psychological] disorders as described in the DMS, in both a clinical and forensic context, and also as an expert forensic [psychiatrist][psychologist] qualified to opine in this criminal context on the risk of this offender offending or reoffending and to testify on all foundational elements that underlie his opinions on that issue.
[155] In preparing their opinions relative to Mr. States’ psychiatric and psychological condition, and the recidivism risks that he would present upon release from custody, all three experts relied on numerous tests or instruments they performed. Dr. Pomichalek performed the Minnesota Multiphasic Personality Inventory Evaluation 2 (MMPI 2) test (and also the MMPI). All three experts assessed Mr. States with risk evaluation tools, including the VRAG, PCLR-2, and the HCL-20R All three experts made extensive reference to the testing instruments and provided detailed explanations in their evidence on those testing tools. Dr. Pearce and Dr. Gojer’s focus was on the psychiatric instruments and Dr. Pomichalek focused on the psychological and cognitive measurement tools.
[156] Dr. Pearce’s expert report was introduced as part of the CD comprising Exhibit 1 for the Crown. His notes and his VRAG, PCLR and HCL-20 scores were entered separately as Exhibits 10A and 10B. Dr. Pomichalek’s notes and report and scoring results were together entered as Exhibit 22. Dr. Gojer’s report, scores and notes were entered as Exhibit 25.
[157] From a forensic psychological perspective, Dr. Pomichalek’s expert report largely mirrors that prepared by Dr. Gojer, although he had his own observations and focal points. Although Drs. Gojer, Pomichalek and Pearce scored Mr. States somewhat similarly on many of the tests, the reports of Drs. Gojer and Pomichalek differ materially and substantively from Dr. Pearce’s reports. All three expert reports are exhaustive and lengthy. I have reviewed and considered the entirety of all three reports.
[158] It will suffice for the purposes of these reasons, however, to present detailed “highlights” of Dr. Pearce’s report and testimony in order to capture its essence, and to do the same relative to Dr. Gojer’s report, also prepared from a psychiatric perspective. I also refer to Dr. Pomichalek’s expert psychological opinions and evidence, on its own and to supplement Dr. Gojer’s evidence and reflect his separate observations on certain points respecting the offender’s psychological profile and intelligence quotients derived from the unique psychological testing he conducted, consistent with Dr. Gojer’s report.
[159] Insofar as a key question on this application is whether Mr. States has a Personality Disorder Not Otherwise Specified (PDNOS), as contended by Dr. Pearce, or whether he instead has Borderline Personality Traits Secondary to a serious 30 year substance abuse disorder, it is not surprising that there were lengthy and extensive references to leading psychiatric and psychological sources.
[160] For example, the Hare Psychopathy Checklist-Revised[^30] developed by the leading and world renowned forensic psychologist, Dr. Robert Hare, and the Wong & Hare: Guidelines for a Psychopathy Treatment Program[^31] manual were entered as Exhibits 11A and 11B. While the Diagnostic and Statistical Manual of Mental Disorders (5th edition) (DSM-5)[^32] published by the American Psychiatric Association does not actually include “psychopathy” per se, as an actual diagnosed mental disorder, it does discuss personality disorders, specifically antisocial personality disorders (ASPD), PDNOSs, and as well discusses substance abuse disorders and considers the interaction of the two.
[161] Chapter 3 of the DSM-5 was introduced as Exhibit 13 because it discusses each of the twenty elements or items that are assessed in Dr. Hare’s PCL-R 2 test and that combine together to assess the degree to which a particular subject exhibits psychopathic traits. Section III, “Emerging Measures and Models” including the Alternative DSM-5 Model for Personality Disorders, was introduced as Exhibit 16.
[162] The Government of Canada's Risk-Need-Responsivity Model for Offender Assessment and Rehabilitation (2007–06)[^33] was introduced as Exhibit 17. Exhibits 18A, 18B, and 18C consist of three excerpts from the DSM-5[^34] relating to General Personality Disorder, Personality Disorders, and Cluster B Personality Disorders, specifically ASPD. To round out the academic source materials that are important to this application, the section of the DSM-5 concerning Substance Use Disorders was introduced as Exhibit 20. Finally, the Violence Risk Appraisal Guide (VRAG) contained in Appendix A of Violent Offenders: Appraising and Managing Risk[^35] was introduced as Exhibit 15.
[163] Against this background, I now proceed to review the highlights of the testimony of the three experts as set out as well in their reports.
Dr. Pearce’s evidence and opinion
[164] Dr. Pearce interviewed Mr. States for nine and a half hours on three separate occasions but he did not review the transcripts from the trial of the predicate offence, nor did he personally obtain any information from Mr. States’ family concerning his history and their relationship and interactions with him. He delegated that task to a social worker, Ms. Jody Lubinski, who interviewed Mr. States’ son, Christopher but no other members of the offender’s family. Dr. Pearce acknowledged in cross-examination that he did not have a lot of the family information that the other experts had in formulating their opinions. Unfortunately, the social worker’s report is of limited utility. This also affects my consideration of his opinion insofar as he was unaware of the supports that Mr. States would actually have available to him to assist on ultimate reintegration into the community.
[165] Dr. Pearce concluded based on his interview with Mr. States as well as the information he had available that Mr. States does not suffer either from a major mental illness, such as schizophrenia or bipolar affective disorder, nor that he met criteria for a diagnosis of depression. He acknowledged that Mr. States has had a substance abuse problem for many years, specifically with cocaine, marijuana and alcohol, with the cocaine abuse being the most problematic.
[166] In Dr. Pearce’s view, the best diagnosis, overall, is polysubstance dependence. In his view, that dependency has compromised Mr. States’ judgment and caused him to be involved in problematic behaviour, including the commission of violent offences, but he has also subsisted by selling drugs of abuse. That, in turn, has repeatedly caused social and most importantly, legal difficulties. He noted that Mr. States has attended for substance abuse treatment programming and even for inpatient treatment, but that he repeatedly returned to use of substances. Dr. Pearce stated that the subject claimed to have been abstinent from drugs of abuse since October 2012, but then suggested medical records suggest otherwise, with no further elaboration. From Dr. Pearce’s perspective, Mr. States suffers from a severe, treatment-resistant polysubstance use disorder.
[167] Dr. Pearce next considered the structure of Mr. States’ character. He considered him to be the product of a relatively stable family, although noting that certain family members have abused substances and been involved in criminal activity. Importantly, however, Dr. Pearce acknowledged that Mr. States did not display conduct disorder, apart from “several” minor suspensions from school, although I personally only counted two.
[168] Dr. Pearce described conduct disorder as a diagnosis that covers a heterogeneous group of individuals which have in common a repetitive and persistent pattern in which the basic rights of others or appropriate societal norms or rules are violated. He regarded conduct disorder as a necessary, but not sufficient, precursor to an adult diagnosis of an ASPD. The key factors of ASPD in adulthood are the early onset and severity of conduct disorder. Conduct disorder is divided into two types: childhood onset and adolescent onset. The childhood onset type is defined by the presence of at least one conduct disorder criterion prior to the age of 10. Conduct disorder will be characterized as mild, moderate, or severe depending on the number of symptoms of the disorder that an individual presents and the severity of their symptoms.
[169] Individuals with a conduct disorder tend to have little empathy or concern for the feelings, wishes, and well-being of others. They frequently misperceive the intentions of others as more hostile and threatening than is the case, especially in ambiguous situations, and they respond with aggression that they then feel is reasonable and justified. They are often callous and lack appropriate feelings of guilt and remorse. Individuals with this disorder may try to blame others for their own misdeeds. Poor frustration tolerance, irritability, temper outbursts, and recklessness are frequently associated features. In Dr. Pearce’s view, conduct disorder is more often associated with early onset of sexual behaviour, drinking, smoking, use of illegal substances, and reckless and risk-taking acts.
[170] He noted in his evidence and his report that Mr. States initially failed to complete high school, though he has completed his GED since the time Dr. Pearce assessed him two years ago in 2015. Dr. Pearce noted that after high school, Mr. States relocated to Toronto where he began abusing substances and associating with other substance-abusing peers. Although he was initially able to maintain gainful employment and later a meaningful cohabiting relationship with his wife, Ms. Guillaume, he later started committing criminal offences. He became increasingly involved in the criminal subculture and he has since continued to offend against others. In Dr. Pearce’s opinion, Mr. States displayed marked criminal tendencies, and despite his insistence that he was motivated to change, failed to make significant gains. As such, Dr. Pearce considered Mr. States’ self-report to be unreliable.
[171] Dr. Pearce counts over 20 violent offences between 1989 and 2013, most often against strangers or acquaintances, assaults against police officers and allegedly, fellow inmates, sometimes using weapons. While Dr. Pearce acknowledged that certain prior offences may have been spurred on by substance use, he considered that most were impulsive in nature and linked to Mr. States’ involvement with drugs, though homelessness and poverty also factored into these assaults. Dr. Pearce acknowledged that Mr. States appeared polite and courteous at times, but he found him to be manipulative, duplicitous, insincere and lacking in empathy. He noted his consistent failure to abide by conditions of release and judicial orders and his repeated re-incarceration as a result. He considers that Mr. States’ antisocial behaviour continued even when in custody.
[172] Overall, Dr. Pearce did not accept that Mr. States’ actions over a long period can be explained by substance abuse. In his view, he suffers from a serious personality disorder, namely a PDNOS with antisocial traits. While Dr. Pearce also acknowledges, somewhat reluctantly to my ear, that the offender cannot technically be diagnosed with ASPD, given the apparent absence of childhood onset conduct disorder, he nevertheless concludes that he possesses many traits seen in persons with that condition.
[173] Dr. Pearce described the essential feature of ASPD as a pervasive pattern of disregard for, and violation of, the rights of others, occurring since the age of fifteen, as indicated by three or more of a number of factors. He considered Mr. States to have all of those factors present.
[174] He concluded his diagnostic opinion by observing that there are presently few treatment options for persons with ASPD, grouping Mr. States into that category even while acknowledging that Mr. States cannot be diagnosed with ASPD under the DSM-5. His concern was that persons with personality disorders are treatment-resistant because they are “hard-wired to be the way they are, and that wiring cannot easily be reversed or to put it differently, they cannot easily be ‘rewired’ by substance abuse or anger management treatment and counseling.” In his view, these are the offenders for whom, if designated a dangerous offender, an indeterminate sentence will be necessary. In conclusion, it was Dr. Pearce’s opinion that he has poly-substance dependence and meets the criteria for a diagnosis of a PDNOS, with antisocial features.
[175] Dr. Pearce then moved on to a consideration and assessment of the risk he poses to reoffend. He relies upon actuarial methods of risk assessment as the most accurate because they provide probabilistic estimates of risk, based solely on empirically established relationships between predictors and the outcome of interest. A probabilistic estimate of risk indicates the percentage of people with the same score, on a given metric or risk assessment tool who would be expected to re-offend within a defined period of opportunity. He considers the best actuarial method of risk assessment for non-sexual offenders like Mr. States to be the VRAG, because it incorporates the Psychopathy Checklist-Revised (PCL-R) score, which in and of itself is a useful assessment tool, and is also of assistance in predicting compliance with community supervision and treatment responsiveness.
[176] Given his views and those of many colleagues that psychopathy is the personality dimension that is most related to offending behavior, the only measurement available is the PCL-R developed by Dr. Hare which he considers informative relative to an individual’s risk of re-offending. It samples 20 domains of personality and lifestyle function, each of which may be scored 0, 1, or 2, thus rendering a total score on a continuum from 0 to 40. A score of 40 out of 40 points would represent Dr. Hare’s conceptualization of the prototypical psychopath, but as Dr. Pearce explained, all scores on this continuum are significant, albeit that scores above 25 are felt to be most representative of psychopathic attributes.
[177] Dr. Pearce acknowledged that the determination of whether Mr. States is a dangerous offender is a legal determination that rests with me alone, but he did provide his opinion on that question from his purely psychiatric perspective. He believes Mr. States could be declared a Dangerous Offender under s. 753(1)(a)(i) or (ii), because, overall and given the results of the PCL-R, VRAG and HCR-20 scoring, he believed that Mr. States “would be likely to re-offend violently absent significant interventions” (My emphasis). In his view, Mr. States has demonstrated a repetitive pattern of behaviour with respect to his assaults on others over the span of two decades, and has failed to restrain his behaviour. As such, should his actions continue, they could quite easily cause serious physical injury and/or severe psychological damage to his victims. He also opined that there is significant psychiatric support for the notion that Mr. States has manifested “indifference to the reasonably foreseeable consequences of his behaviour”. Based on these conclusions, in Dr. Pearce’s opinion the test for a Dangerous Offender designation is met.
[178] Finally, but very importantly, given his conflicting diagnosis opinion from that of the two defence experts who testified, Dr. Pearce also considered Mr. States’ suitability for an LTSO, and whether with the passage of time and/or treatment, Mr. States may present with a “reasonable expectation” of eventual control of the risk in the community. He acknowledged, however, that “reasonable expectation” of control of the risk in the community cannot possibly suggest zero tolerance for any offending behaviour, but rather suggests harm reduction with respect to serious violent offending. In fairness to Dr. Pearce, he added at this juncture that he had received no indication from Crown counsel of what length of sentence (if any) Mr. States might receive for the index offences. I note that was in spite of my request to Crown counsel several weeks before the hearing that he be informed of the Crown’s views in that regard. To his credit, he acknowledged that could have a significant impact on his views.
[179] Since he considered Mr. States to present with a moderate to high risk of violent recidivism, the question from a psychiatric perspective for Dr. Pearce of whether Mr. States would be suitable for an LTSO hinged on whether he is treatable to the point that his risk could be managed within the community both while under supervision (and subject to an LTSO) and after the expiry of such an Order.
[180] Dr. Pearce listed the factors he would take into account on this subject as they relate to Mr. States, but surprisingly to me he indicated uncertainty whether Mr. States is an Aboriginal offender, when plainly he is. Dr. Pearce had no updated Gladue report or confirmation of Aboriginal status because there were no funds available to have that update provided. He expressed his willingness in his report to review and reconsider his considerations if such documentation was made available to him. It was not, but he took the indigenous factors into consideration when he was cross-examined at this hearing.
[181] In assessing Mr. States’ risk to re-offend, Dr. Pearce acknowledged that he first would first need to determine the likelihood of response to treatment and/or supervision for Mr. States’ diagnosis. Then he would consider whether there is any reason to be more or less optimistic regarding that Mr. States’ specific likelihood of benefiting from treatment and/or supervision in a manner that reduces his risk of recidivism.
[182] From Dr. Pearce’s perspective, Mr. States’ claimed personality disorder (PDNOS and psychopathy - although the other experts disagree with that diagnosis) frames the question of his treatability, as does his serious substance use disorder upon which all expert witnesses agree.
[183] Dr. Pearce was concerned that substance use disorders are treatment-resistant and have a high relapse rate. He observed that Mr. States has seemingly offended while under the influence of substances but more importantly, his repeated return to the drug subculture and drug dealing has placed him at increased risk of a return to violence. While Mr. States expressed an interest in substance abuse treatment and claimed to be sober since October 2012, Dr. Pearce considered his self-report to be unreliable, based on reports from some seven years earlier when Mr. States’ was at the Algoma Treatment Centre but unsuccessful in maintaining abstinence following that admission, even though he expressed a similar sentiment to treatment providers at that facility, just as he told Dr. Pearce in 2015.
[184] He remained uncertain that Mr. States is internally motivated to achieve and maintain abstinence, though he also admitted that there may be some suggestion that he is, but also acknowledged that Mr. States had never really been subject to intensive supervision while in the community and had not been placed at a CCC. Despite his cautions and reservations, Dr. Pearce also acknowledged that Mr. States is aging and that certain individuals become less likely to abuse “hard” drugs as they age, and he agreed that there may be reason for optimism in terms of treating this criminogenic risk variable if an intensive substance abuse treatment and a comprehensive risk management plan could be implemented for a prolonged duration,.
[185] Nevertheless, in 2015 Dr. Pearce expressed a guarded prognosis. He said treatment for personality disorders is challenging because they resist change. Given his diagnosis of psychopathy, he was also concerned this would present additional challenges owing to the presence of ingrained antisocial traits. However, Dr. Pearce also acknowledges that Mr. States’ presentation is somewhat unusual, in that he was not rebellious or antisocial in his childhood or early adolescence, as is almost always the case in those who score so highly on the PCL-R. Thus, Dr. Pearce acknowledged that this could affect his prognosis in a favourable way, supplemented by his perception of positive qualities; for example, he presents as likeable and can interact well with others at times.
[186] Since Mr. States was 47 at the time of his assessment and 49 at the time of this hearing, Dr. Pearce also considered whether Mr. States will “burn out” as he ages. The scientific literature suggests that offenders may become less likely to commit violent and non-violent offences as they enter into their fifth decade of life. However, at the time of the assessment in 2015 he considered that the frequency and severity of Mr. States’ violent offences was possibly increasing and claimed that psychopathic offenders may not demonstrate an age-related decrease in recidivism.
[187] In summary, based on his assessment in 2015, Dr. Pearce was not clear whether Mr. States would be manageable while subject to a LTSO, or following the expiry of such an Order. He acknowledged the possibility of eventual control of the risk in the community if Mr. States could receive intensive and prolonged treatment and monitoring and make positive gains during this time, but at the time of his initial assessment, he felt unable to conclude that there was a “reasonable expectation” of that from a psychiatric perspective. Importantly, two years have passed and Dr. Pearce now allows that Mr. States’ pursuit of treatment and programing while incarcerated over the last two year is one of the most impressive examples he has seen, and based on those evident changes, concluded that he now believes that Mr. States could do quite well on a LTSO order.
Dr. Gojer’s Evidence and Opinion
[188] The focus of Dr. Gojer’s testimony was his finding that Mr. States has had a long-standing problem with an alcohol use disorder, and a long-standing dependence on cocaine. He believes both of those afflictions are presently in remission while he is in a controlled environment. However, unlike other offenders Dr. Gojer has assessed who have had ongoing problems with drugs and alcohol while in custody, Mr. States does not appear to have abused drugs or alcohol during his most recent incarceration since being arrested for the predicate offence.
[189] The foundation for Dr. Gojer’s opinion starts with Mr. States’ history of criminal offending commencing in his 20s, with nothing in his history to suggest that he has suffered from or showed evidence of childhood conduct disorder, an attention deficit disorder or an oppositional defiance disorder that might have predisposed him to the development of an ASPD.
[190] Thus, like Dr. Pomichalek, Dr. Gojer noted not only that the DSM-5 requires childhood misconduct or disorder for a diagnosis of ASPD, but that those factors are not present in Mr. States. The diagnostic requirement for childhood misconduct is predicated on the true intractable antisocial personality disordered individual as opposed to wrongly labeling a person whose antisocial behaviors are secondary to another problem like drug abuse or alcohol abuse. In Dr. Gojer’s view, Mr. States’ adult antisocial behaviors are clearly secondary to his lifestyle of drug abuse. He reached a fundamentally different diagnosis than Dr. Pearce.
[191] Observing that Mr. States has had problems with his self-esteem, his identity, drug and alcohol problems, anger problems and a failure to maintain a lasting relationship, those factors raised in his mind the spectre of a borderline component to Mr. States’ personality. Dr. Gojer noted that often such individuals who come into conflict with the law are wrongly labeled as suffering from an ASPD. On the surface one sees features of selfishness and narcissism, but in Mr. States’ case, and in the absence of childhood or adolescent disorder that can be indicative of psychopathic hard-wiring in the developmental phase, he considers these traits are likely driven by low self-esteem, identity problems and low self-confidence, rather than by a true personality disorder.
[192] In Dr. Gojer’s view, the personality profile that Mr. States presents was captured well in the testing done by Dr. Pomichalek, pointing more to a person whose self-concept is damaged. He felt that this damage is likely due to developmental trauma, and secondary to how he perceived his place in society, and how he was treated by those around him in his formative years. In his judgment, he does not show the features of a Post Traumatic Stress Disorder and his psychological make up is better explained by the concept of Complex Trauma exemplified by anger, irritability, impulsivity, substance use disorders, aggression, poor self-concept, and self-esteem problems.
[193] Dr. Gojer’s assessment is also affected by Mr. States’ multiple physical problems, including chronic arthritis, degenerative spinal disease, spinal disc disease, and other muscular-skeletal disorders. Moreover, he has suffered numerous head injuries, the most recent one occurring in 2016 while in custody.
[194] Relative to his assessment of the risks Mr. States presents and his future prognosis, Dr. Gojer expressed his view that since evaluation of risk is a complex task, it is best approached from a multi-dimensional perspective involving both qualitative and quantitative approaches. He believes this approach is most appropriate to identify who Mr. States’ potential victim or victims may be, the imminence of any harm, and how severe it may be.
[195] He cautioned that a simple qualification of risk into “high”, “moderate” or “low” categories offers a cross-sectional view of risk, but fails to examine dynamic factors that contribute to risk and how these dynamic factors can be modified. Absent consideration of dynamic factors, he considers risk assessments to be of little value. Dr. Gojer noted that risk can be examined from an actuarial point of view, from a clinical perspective, and by blending the findings of both approaches into a composite conclusion. More importantly from his perspective, however, the assessment of risk for a subject like Mr. States may open pathways that direct to how his risk can and should be managed.
[196] Dr. Gojer accepts that actuarial risk assessments are based on largely immutable and static factors, with little weight being given to dynamic considerations. The factors that weigh in actuarial assessments tend to be historical in nature and can be scored using past clinical, criminological and legal data pertaining to the subject. The fixed nature of this data permits the generation of statistical data projecting the likelihood of a certain event occurring into the future, for example, a violent act, or in the case of a sexual offender, a sexual offense. These results are generated using a population that does not include the offender but against whom he is compared. Unfortunately, Dr. Gojer cautions that violence has a low base rate and when a low frequency event is used to generate a statistical predication tool, the results will be less accurate than when evaluating a high frequency event, By way of example and analogy, he refers to considerations of age and gender and their relationship to motor vehicle accidents.
[197] In Dr. Gojer’s opinion, most actuarial risk assessment instruments, like the VRAG, are only moderately predictive of risk and they fail to predict when a violent offense is going to occur, its severity and who is going to be the likely victim. Furthermore, they do not take the role of therapy into consideration, or other specific interventions like monitoring under stringent conditions. He does not consider them to be the highly accurate predictors of future conduct that Dr. Pearce attributes to the actuarial tools.
[198] Instead, Dr. Gojer’s professional preference is to put more weight on clinical assessments where the analysis is rooted in the person’s developmental history, history of medically or psychologically relevant factors, and coming to understand how those factors contribute to well-recognized formal diagnoses, and thus have general predictive value. In his experience, the general predictive value has often seen clinical assessments be preferable for predicting risk because they take into consideration dynamic or mutable factors that include aging, effect of medical treatments, therapy and external control mechanisms. Given that many of these dynamic variables are hard to quantify, producing accurate statistical data that can be used to make predictions limits these methods to qualitative as opposed to quantitative analyses. Dr. Gojer explained that in recent years researchers have added historical and risk management factors to clinical factors and developed what are known as Structured Professional Judgment risk evaluation tools. He regards the leading example as the HCR-20, also favoured by Dr. Pearce and Dr. Pomichalek.
[199] In his conclusion, Dr. Gojer expressed his opinion that Mr. States’ offending is a combination of drug-related offending and aggression within the drug subculture in which he often targets males.
[200] Having read the transcripts and my charge to the jury, and having come to appreciate the nature of the predicate offenses that resulted in Mr. States’ conviction, Dr. Gojer viewed the offence as serious but also appreciated that it occurred in a situation where Mr. States was provoked and where his life was endangered. Contrary to Dr. Pearce’s opinion, Dr. Gojer did not view the predicate as an escalation in seriousness of offending, but rather more a product of his drug lifestyle and the fact that Mr. States was in the presence of other aggressive individuals.
[201] While acknowledging that his offending has been continuous since his early 20s and the aggression has been of moderate severity, he does not see it as the true manifestation of an intractable flawed personality, but rather as being secondary to a treatable condition, a serious substance and an alcohol use disorder.
[202] Dr. Pearce expresses great concern that the personality disorder he considers Mr. States to have will cause him to be treatment-resistant, because he is effectively “hard-wired,” but Dr. Gojer disagrees and claims that unlike classic psychopathic individuals, it is highly likely that Mr. States’ drug taking, alcohol using, and aggression-prone lifestyle will attenuate with age. Given his present age of 49, an absence of him making a finding of psychopathy, and given the emerging chronic health issues, in Dr. Gojer’s diagnosis and opinion, Mr. States now presents with a more muted aspect to his personality, with this trend toward attenuation likely to increase exponentially in the next few years as he ages.
[203] In support of his views, Dr. Gojer looks to the absence of drug and alcohol use while Mr. States has been incarcerated, his sincerity, and his dogged pursuit of education and relevant programs in custody. In Dr. Gojer’s estimation, this is tangible evidence of his commitment to change and an ability to follow through. His marks in all programs and in his community college extension courses are excellent. He plainly appears to be engaging change. His progress and success have in turn been a source of further motivation to him.
[204] In Dr. Gojer’s experience, most individuals facing dangerous offender proceedings try to put their best foot forward and appear contrite, remorseful, and highly motivated to make positive changes in their lives, but he concludes that Mr. States has done more than talk. He has actively sought out and participated in programs and schooling in a difficult environment that is distracting and stressful to the average inmate, accompanied by constant worrying over the result on this application that will ensue. The jails are typically overcrowded, and Mr. States plainly suffers daily from physical pain associated with his spinal stenosis and degenerative disc disease. He has been injured. Yet he has succeeded exceptionally well during the last four years, so that shows determination and tenaciousness. If channeled in the right direction, it is Dr. Gojer’s opinion that Mr. States has the potential to do quite well in the future.
[205] Further, he notes that Mr. States has the support and encouragement of his family who report seeing a change in his attitude at this time and believe in his sincerity. Dr. Pearce did not have this input, but in fairness to him, it must also be remembered that Dr. Pearce’s assessment was conducted over two years ago, and there has been notable progress since that time. Mr. States’ family do not condone his past, but they are supportive of him engaging in pro-social activities and moving ahead positively into the future and most importantly, as they displayed by their regular and continuous attendance at this proceeding, they are there to support him. That Mr. States is loved and cared for and has a family waiting for him is much more than many inmates have when they are released into a hostile world with no supports. This in Dr. Gojer’s estimation is an important positive factor that cannot be ignored.
[206] Further, Mr. States’ intellectual capacity has and can continue to allow him to engage in productive work. In addition to having the intellectual capacity to understand and appreciate how he got to his present predicament, Dr. Gojer observes that he has shown the ability to make the necessary changes to his thinking in this most recent lengthy incarceration, and that must be accepted as a precursor to change in behavior. Having the intellectual capacity allows for him to participate and utilize services geared towards his rehabilitation. Change is accessible to Mr. States if he chooses it. It is about Mr. States and not his past. Dr. Gojer believes based on the evidence that there is a foundation for continued progress.
[207] As for his antisocial history, in Dr. Gojer’s view this is attributable to and results from his drug and alcohol lifestyle. As such, treatment of his drug and alcohol problems, monitoring of his progress in the community, and engagement in pro-social educational, vocational and recreational activities are likely to be effective with him at this time. Reiterating his opinion, Dr. Gojer continued in his testimony to emphasize that Mr. States is not hindered or undermined in making progress by an ASPD or psychopathy.
[208] In Dr. Gojer’s view, Mr. States is now keen to address his early negative life experiences of racial discrimination and keen to understand his native culture and how being black impacted on his development. It ought not to be controversial that being black and indigenous are two important factors that allow for the potential to be discriminated against. To have both factors makes him more unique than the average black person and the average aboriginal person. This aspect of his identity is important and in Dr. Gojer’s opinion needs to be addressed in counseling. He notes that Mr. States is quite motivated to address how reactions to him being black and aboriginal have impacted on his attitudes and behaviors over the years. In Dr. Gojer’s opinion, addressing these issues is highly important in addressing the borderline traits of his personality, which he regards as a treatable condition.
[209] Mr. States is keen and open to treatment. He has not qualified his acceptance of any suggestions. He is open to taking Antabuse, a drug that will cause a violent reaction when taken and alcohol is consumed. He is committed to not drinking and wishes to use reinforcement approaches. He is willing to take further treatments and programs in the community to address his alcohol and drug problem, his anger problems, improve his socialization and to make changes in his psyche. Not only is he motivated and intelligent, but in Dr. Gojer’s view, he has the psychological ability to effect these changes.
[210] It cannot be denied that in the past, Mr. States has not followed through with programs and treatment. His supervision on probation has been poor with many breaches. There was manifest disinterest in change. Notwithstanding his progress to date while in custody, and Dr. Gojer’s optimism that he will and can continue, he also believes that additional steps must be taken and methodologies applied to ensure that he follows through, that he has stability to his residence, and that the persons he associates with are not his old associates. Mr. States needs help in sustaining his progress. A strict legal mechanism that can provide a fabric of support in the community but that also affords serious consequences for breaches would be best and in Dr. Gojer’s opinion would most effectively manage the risk Mr. States presents in the community.
[211] Given his present attitude, relative compliance with sobriety, and engagement in therapy, Dr. Gojer notes that his aggression is decreasing and he expects it to continue on a downward trajectory. He sees his risk as moderate at this time, and dropping. Further, Mr. States’ risk can be further addressed and lowered through frequent supervision contacts, continued counseling/treatment and social support in the community. He must be held accountable and know he will be held accountable. Closer supervision conditions such as those available under an LTSO will permit random screening for use of drugs and alcohol, and impress upon him the need to stay the course. An electronic bracelet should address any desire to return to his prior geographic centre in the city. He must reside in a specific location, attend ongoing programs such as AA and NA and secure a sponsor, take programs that address his needs, have no contact with individuals with criminal records, engage in employment, and allow a supervising officer to communicate with all parties invested in his management. These are the exact same types of conditions Dr. Pearce has in mind, were an LTSO to be imposed as it will be in this case.
[212] Given that Mr. States is now on the eve of being in his 50s, has ongoing degenerative medical problems and is highly motivated to succeed, Dr. Gojer concludes that it is reasonable to expect that his risk can and will be effectively managed in the community, with this degree of supervision serving as the daily encouragement that would be of the most benefit to Mr. States now.
[213] Dr. Gojer concluded his evidence and his report observing that “it is often said that it is best to strike when the iron is hot.” Here, Mr. States has 4 years of abstinence and the fear of this application and his family has rallied around him, visited him regularly, and are in contact by telephone and letters.
[214] In conclusion, while acknowledging that further incarceration may afford opportunities for anger management and substance use counseling, in Dr. Gojer’s opinion a decision to incarcerate may be over and above what is needed to manage Mr. States, especially where the programming is otherwise available in the community. In his view, Mr. States has had enough programming to what he should do, and Dr. Gojer believes there are ample community based programs and monitoring devices that can manage Mr. States in the community over the next few years. What he needs, in Dr. Gojer’s view, is to be guided in constructing a solid plan in the community capable of sustaining him for a period of time that will allow him to adapt to a new long term routine and fight off the stresses of that challenge.
Dr. Pomichalek’s Evidence and Opinion
[215] With no disrespect to Dr. Pomichalek, I do not intend to outline his evidence in depth. It will suffice in part to acknowledge that he generally agrees with Dr. Gojer’s assessment of Mr. States that he does not have a personality disorder but rather exhibits traits of one and believes he is a person who should be subjected to an LTSO for a period of years in order to complete the progress he has made over the past four years, regardless of his prior less successful history. What I found must important in Dr. Pomichalek’s report and evidence, however, was the extensive array of psychological testing instruments, all of good reputation and beyond those used by the forensic psychiatrists, that Dr. Pomichalek used in assessing Mr. States, and the results of that testing.
[216] In addition to the PCL-R, the HCR-20 v. 3.0 and the VRAG, Dr. Pomichalek also tested Mr. States on the well known Minnesota Multiphasic Personality Inventory-2nd Edition (MMPI-2), the Personality Assessment Inventory (PAI), the Bell Object Relations and Reality Testing Inventory (BORRTI), the Anger Disorders Scale (ADS), and he assessed Mr. states cognitive functioning under the Reynolds Intellectual Assessment Scales (RIAS). In addition, beyond the PCL-R-2, Dr. Pomichalek assessed Mr. States under the Psychopathic Personality Inventory-Revised (PPI-R).
[217] Within the field of psychology, the MMPI-2 is the most widely used test of adult psychopathology, including major symptoms of social and personality maladjustment. Dr. Pomichalek explained that the MMPI-2 is unparalleled in terms of the vast amount of research it has generated that in turn has helped to establish its undisputed usefulness in assessing symptom and personality correlates. Moreover, the MMPI-2 validity scales are unmatched in terms of their research support and in effectively identifying misleading response styles. In Dr. Pomichalek’s view, this makes the MMPI-2 an instrument of choice in situations in which individuals might have a strong incentive to distort their self-report. Nevertheless, tested against the internal controls, in his opinion, Mr. States’ MMPI-2 profile is valid.
[218] The MMPI-2 results show that Mr. States’ underlying personality dynamics reflect a lonely, unhappy individual who feels real guilt as a specific emotional state, as well as regret, self blame and residual sadness. His current personality constellation revolves around a push and pull conflict. On the one hand he has a somewhat naïve and optimistic expectation of others’ honesty and trustworthiness, and a need for their affection and approval. On the other hand, he feels that others do not accept him and deprive him of an emotional connection. He craves attention and affection, is highly influenced by social reinforcement, and is sensitive to rejection. However, he is also distrusting when approval and affection are offered. In Dr. Pomichalek’s opinion, this personality dynamic often leads to self-defeating behaviors such as substance abuse.
[219] Dr. Pomichalek explained that the MMPI-2 protocol indicates that the anger that individuals with this kind of profile experience is typically expressed in a circuitous way, such as by subtle judgments of others and quickness to feel hurt or rejection, but he noted as well that they can occasionally show brittle, angry eruptions that they justify as self-protective.
[220] The PAI is a 344 item self-report instrument designed to provide psychological assessment information in a variety of contexts in which psychopathology, personality and psychosocial environment are a concern. Once again, Dr. Pomichalek found that Mr. states PAI profile was valid based on its internal validity and veracity tests. Mr. States’ most elevated PAI scores were on the scales designed to tap into drug and alcohol use and dependence, and they indicate a history of significant problems in that area. The rest of the PAI profile corroborates the personality constellation picture that Dr. Pomichalek stated emerged from the MMPI-2 test.
[221] Of particular importance here, Mr. States’ PAI profile indicated that although he has a past history of aggressive behavior, impulsivity, and a proneness to being easily frustrated, he is most likely to externalize negative emotions in the form of aggressive behavior only when he is disinhibited by alcohol or drugs. Importantly, the skills that would suggest the presence of antisocial personality order or psychopathic profile under this test were scored in the average ranges for Mr. States.
[222] The BORRTI is a 90-item instrument designed to evaluate individuals for personality functioning and the presence of thought disorders. It has been used with different clinical populations including personality disordered individuals and psychopaths. It yields information regarding the "respondent's ability to sustain essential relationships and accurately identify internal and external reality." It includes several internal validity checks. Dr. Pomichalek testified that Mr. States scored well below the cutoff point on all the clinical scales, indicating an absence of personality pathology, adequate interpersonal functioning, as well as no reality distorting perceptions or beliefs.
[223] The ADS is a 74-item self-report assessment tool designed to assess clinically dysfunctional anger and help design individualized intervention and treatment plans. It not only examines the physical aggression resulting from anger, but also cognitions associated with anger. Dr. Pomichalek testified that Mr. States produced a valid ADS profile. His total score indicated an average level of anger in comparison to his age-mates and no significant anger pathology. In Dr. Pomichalek's opinion, those scores indicated that Mr. States may react with anger to a wider range of eliciting stimuli than his age peers, and that he is more likely to focus on ending the anger provoking situation in order to feel relaxed, rather than focus on the event that angered him.
[224] On the RIA instrument, an individually administered measure of intellectual functioning, Mr. States scored a competent index score of 102, an average score that exceeds 35% of his age peers. The chances are 90/100 that his true competent index score falls within the range of scores from 97 to 107.
[225] Finally, on the PPI-R, a psychopathic assessment tool consisting of 177 self-report items whose primary focus are various facets of psychopathic personality, Dr. Pomichalek opined that Mr. States produced a valid PPI-R profile, but that scoring was low on the Virtuous Responding and the Deviant Responding validity scales. Mr. States evidently also responded reliably on both of the Inconsistent Responding Scales. These are internal test validators relative to the answers provided by the subject.
[226] In Dr. Pomichalek's opinion, none of Mr. States’ PPI-R scores reached “clinical significance.” In fact, his total PPI-R score was below average, as were the scores on two of the three higher factors – Fearlessness, Dominance and Coldheartedness. On the third higher factor, Self-Centered Impulsivity, Mr. States scored in the average range. Taken together, Dr. Pomichalek concluded that these scores do not portray a domineering, coldhearted "alpha male" type psychopath, but rather someone who does not lack in deep feelings and empathy, but who has a moderate tendency to externalize distress and negative emotions.
[227] I have included the balance of Dr. Pomichalek’s scores on the PCL-R-2 and the HCR v. 3 instruments later in these reasons under the heading of “Findings on Risk and Treatability” to permit them to be compared to the scores on the same instruments as measured by Drs. Pearce and Gojer.
Findings Relating to the Evidence of the Witnesses
[228] The Crown called three witnesses, Mr. Tamscu, Ms. Rousell and Dr. Pearce. Counsel for the defence also called three witnesses, Dr. Gojer, Dr. Pomichalek and Mr. States brother, Cecil States.
[229] I found the evidence of all three of the civilian witnesses, two of whom were corrections officials and one the offender’s brother, to be credible and reliable. Each testified plainly and forthrightly relative to the questions they were asked.
[230] Mr. Cecil States testified in an entirely honest and at times emotional manner relative to life in his family, his own addiction to cocaine and his many criminal offences before he left his substance abuse and the criminal behavior that accompanied it behind him in 2010, and changed the direction of his life. He now works tirelessly in a wide variety of venues trying to help addicted persons overcome their addictions. His weekly schedule of speaking and counseling events is extensive. It demonstrates a proven ability to overcome a substance use disorder with treatment and counseling, but most important of all, powered by the internal will and perseverance to succeed knowing there is nothing but blackness if he were to fail.
[231] In particular, I found his evidence telling when he described his efforts to get his brother, Mr. States, to abandon his life of substance abuse. But he recognized at the earlier times he attempted this that his brother would talk the talk of wanting to turn his life around, but he would not walk the talk. He continued to return to his addictions and so his brother Cecil wanted little to do with him during that time up until this offender made the concerted effort he commenced in 2013 to abandon his substance use proclivity, and appeared to change his direction and determination to get clean and stay clean.
[232] From that time forward, Cecil States has been a continuous source of support and encouragement to his brother on the road he now appears to have embarked upon, and as he described it, the best evidence of his belief in Christopher’s change in direction is his willingness for his brother to now have his phone number so Christopher can call for help whenever he needs it.
[233] Mr. Cecil States was also able to assist me in understanding the extensive family support network that will actually be available for this offender once he is ultimately released into the community. Those are important and positive indicators that if he were to be subjected to a long-term supervision order, there would and will be family members who are committed to him who will be there to assist him with his gradual return to the community and reintegration into productive Canadian society.
[234] I found the evidence of Mr. Tamscu and Ms. Rousell to be of great assistance to increase my understanding of the actual program and treatment opportunities that exist within both the federal and provincial corrections systems, but also in significantly enhancing my understanding of exactly how a LTSO works, and how Long Term Offenders are managed. The only negative comment I would make is related to one or two comments made by Ms. Rousell suggesting that CSC sometimes has difficulty in providing more extensive supervision of Long Term Offenders whose orders may call for more extensive supervision, and in the suggestion of an institutional preference for providing treatment in-house rather than retaining the services of external counselors or therapist where need requires it. The fact is, as R. v. Hess makes clear, CSC has a statutory mandate and obligation to provide the services that are required and stipulated by the Parole Board of Canada in an LTSO – full stop.
[235] Turning to the expert witnesses, as in the case of the civilian witnesses, I generally found their expert opinion evidence to be credible and reliable, even if not always in agreement, which is perhaps not surprising, particularly on the core issue of whether Mr. States suffers from a treatment-resistant personality disorder as maintained by Dr. Pearce, or instead exhibits borderline personality traits secondary to a severe and longstanding substance use disorder as was the opinion of Dr. Gojer and Dr. Pomichalek.
[236] Nevertheless, I do accept that it was open to the Crown’s expert, Dr. Pearce, to provide his opinion as he did on the ultimate question of whether Mr. States is a dangerous offender as stipulated in s. 753 of the Code and indeed, as he observed, and the case law suggests, many times this is the expected role of the psychiatrist on hearings such as this. As noted in R. v. Solleveld when discussing this general principle, the Court of Appeal has stated:
17 Nor, in our view, should the impugned evidence have been excluded because it tread near the "ultimate issue" for the jury.
18 The Supreme Court of Canada has repeatedly affirmed that the common law rule precluding expert evidence on the ultimate issue no longer applies in Canada: R. v. Burns, 1994 CanLII 127 (SCC), [1994] 1 S.C.R. 656, at para. 25:
While care must be taken to ensure that the judge or jury, and not the expert, makes the final decisions on all issues in the case, it has long been accepted that expert evidence on matters of fact should not be excluded simply because it suggests answers to issues which are at the core of the dispute before the court: Graat v. The Queen, 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819. See also Khan v. College of Physicians and Surgeons of Ontario (1992), 1992 CanLII 2784 (ON CA), 9 O.R. (3d) 641 (C.A.), at p. 666 (per Doherty J.A).
See also R. v. Bryan (2003), 2003 CanLII 24337 (ON CA), 175 C.C.C. (3d) 285, at para. 16: "there is now no general rule precluding expert evidence on the ultimate issue"[^36].
[237] Dr. Pearce was entitled to provide that opinion, but what I am not permitted to do is simply accept it and make such a finding in lieu of considering the entirety of the expert evidence to determine on my own how it informs the question of whether this offender is a dangerous offender, which is a question that I alone must decide.
[238] I also found it interesting and important that Crown counsel cautioned me that in assessing the evidence of the experts, I must necessarily consider the possibility of unintended bias or partiality. Justice Molloy recently spoke to the need address issues regarding partiality in R. v. France.[^37] In that case, the learned judge references a number of articles written by Professor David Paciocco, now very recently appointed to the Court of Appeal, which stress the importance of the expert maintaining an "open mind to a broad range of possibilities" and notes that bias can often be unconscious.
[239] Justice Paciocco refers to a number of forms of bias: lack of independence (because of a connection to the party calling the expert); "adversarial" or "selection" bias (where the witness has been selected to fit the needs of the litigant); "association bias" (the natural bias to do something serviceable for those who employ or remunerate you); professional credibility bias (where an expert has a professional interest in maintaining their own credibility after having taken a position); "noble cause distortion" (the belief that a particular outcome is the right one to achieve); and, a related form of bias, "confirmation bias" (the phenomenon that when a person is attracted to a particular outcome, there is a tendency to search for evidence that supports the desired conclusion or to interpret the evidence in a way that supports it).[^38]
[240] In assessing whether bias exists Crown counsel also reminds me that it is important to not only consider the language employed by the expert including whether or not there is reference to being on one side or another, but to also maintain an awareness of whether the experts take dogmatic positions or are intractable to the possibility of other theories or perspectives. Finally, there is also the need to be cautious of opinion evidence given by an expert who has appeared to take on the role of advocate for one of the parties, rather than maintaining balance and recognizing that the expert’s first duty is to the court.[^39]
[241] I have taken all of these principles into account in my assessment of the expert evidence. I have little criticism of the expert witnesses in this case for assuming advocacy positions, and have little concern, given their extensive overlapping experience assessing individuals like Mr. States, of professional credibility bias, or association bias or with a lack of independence.
[242] Nevertheless, I do accept that Dr. Pomichalek did appear to take certain seemingly dogmatic positions in his testimony, the first time he has testified on a dangerous offender hearing though he has testified at many hearings relative to whether offenders are legally not criminally responsible (NCR). I also had a concern relative to Dr. Pearce, not of a confirmation bias per se, but rather of a lesser form of something akin to it to the extent that he did not avail himself of all the evidential sources that were available to him to inform his diagnosis, particularly the trial transcripts and the availability of direct evidence from the offender’s family, but also a lack of openness to the potential utility of the psychological testing that was available and that was done by Dr. Pomichalek.
[243] Indeed, relative to the predicate offence, Dr. Pearce was pressed on what he found to be the differences between the predicate offence and Mr. States’ prior offending. He could not differentiate them. He said he could see “escalation” in violence, just from “the more serious nature of the charges alone”, but charges do not establish a pattern of behaviour that is of interest to s. 753. He said it was “another incident of when Mr. States was in trouble”, but he also acknowledged that he would need to have had more information to opine meaningfully on the predicate. He did not know that Mr. States had been injured during the predicate because he had not seen the evidence that showed that he was, but nevertheless also acknowledged in cross-examination that he did not know whether he believed him when Mr. States told him he had been injured.
[244] Dr. Pearce said that if he had had more information, he might know what the differences were, but the fact is that all of that information was provided or available to him. Regrettably, he did not read it. I understand given his many engagements that Dr. Pearce has a lot going on and why he might not have read the trial transcripts, and felt he could instead rely on the so-called “‘Agreed’ Statement of Facts.” While disappointing to me, it is not my place to be critical of that, but it does necessarily reduce the value of his opinion, particularly given that he found the requisite pattern of behaviour to be present that would permit Mr. States to be designated a dangerous offender, when, respectfully, by his own admission, he did not have the information that could make such an assessment reliable.
[245] Further, as I explain below, even though he acknowledged that Mr. States could not be diagnosed under the DSM-5 with an anti-social personality disorder because of the total absence of youthful misconduct in his life, he still felt and continued to insist that Mr. States suffers from a PDNOS, because of the presence of certain traits, traits that were also generally found to be present by the other two experts, but attributed to the subject’s substance use disorder rather a hard-wired form of psychopathy. He explained why, but I found his explanation less than convincing, especially in the context of his admission that while he does treat people with substance use disorders, it is not really part of his area of specialization.
[246] These points cause me to experience some reservation relative to key aspects of the reliability of both Dr. Pearce’s final diagnosis and his opinion that Mr. States qualifies as a dangerous offender, and to less important aspects of Dr. Pomichalek’s testimony, but at the end of the day, it really does not matter because there is a marked degree of confluence of the doctors’ opinions relative to the ultimate issues that are central to this case and the direction this offender should be required to follow.
Analysis and Findings on the Dangerous Offender Criteria
Legislative Provisions Applicable in this Case
[247] There were significant amendments to the dangerous offender regime enacted by Parliament on August 1, 1997, and again in 2008. The nature and consequences of those amendments were discussed in the reasons of the late Justice Rosenberg in the arguably leading decision in this province of R. v. Szostack,[^40] and in other important cases to which I will refer.
[248] It is important to remember, however, that important earlier decisions addressing the legal tests that apply on a dangerous offender application continue to be relevant and controlling in this province under the law as amended: see the reasons of Feldman J.A. in R. v. Hogg[^41], which refers with approval to the earlier decisions of the Alberta Court of Appeal in R. v. Neve[^42], the decisions of the B.C. Court of Appeal in R. v. Pike[^43] and R. v. Dow[^44], the decision of the Newfoundland and Labrador Court of Appeal in R. v. Newman[^45], and the older but still respected decision of Lacoursiere J.A. of the Court of Appeal of Ontario, writing for Martin and Goodman JJ.A in R. v. Langevin.[^46] While those earlier decisions continue to be governing on an application like this, since the index offences in this case were committed on June 18, 2013, it is the current statutory provisions as enacted in 2008 that apply in this case: see R. v. Johnson.[^47]
[249] I have previously noted the constitutional challenges that are in play as I write these reasons, but as the paragraphs that follow will show, in my view the removal of judicial discretion in the current legislative scheme has no impact on the determination of this application, as I will explain. Assuming for the sake of argument that the Supreme Court of Canada determines that the amendments made by the last government were unconstitutional as claimed, and that the pre-2008 law remained in force, as these reasons will show, it would have no impact on the decision I have reached on this application. I would have reached the same decision under either legislative regime.
[250] The legislative provisions in Part XXIV of the Code establish the framework to be applied in determining whether Mr. States can be deemed to be a dangerous or long-term offender. Section 752 of the Code defines the types of offences that may give rise to a dangerous offender application. Section 753(1)(a) of the Code then provides that to be designated as a dangerous offender, Mr. States must not only have been convicted of a serious personal injury offence, but he must also constitute a threat to the life, safety or physical or mental wellbeing of other persons.
[251] In this case, Mr. States has been convicted of aggravated assault (s. 268(1) – 14 year maximum), assault with a weapon (s. 267(a) – 10 year maximum) and possession of a weapon for a dangerous purpose (s. 88(1) – 10 year maximum). However, the particular offence that Crown counsel relies upon as constituting the predicate offence for the purposes of this application is only the offence of aggravated assault. The other offences do not form part of the predicate offence for the purposes of this application. Nevertheless, as the parties concede, that predicate offence against Mr. Henry is an indictable serious personal injury offence as defined in s. 752(a)(i) and (ii) of the Code 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 upon another person and for which the offender may be sentenced to imprisonment for ten years or more.
[252] The relevant provisions here include ss. 753(1)(a)(i) and (ii) and they require the determination of whether the offender is a dangerous offender to be made 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, or
(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 behavior. [Emphasis added.]
[253] Before 2008, the dangerous offender provisions conferred discretion on the sentencing judge not to impose an indeterminate sentence as a dangerous offender even where the dangerous offender criteria were met.[^48] In contrast, section 753 of the Code now relies on the imperative language of “shall,” rather than the permissive language of “may,” thereby removing the discretion of the trial judge not to declare the accused a dangerous offender where the criteria are met.
[254] Under s. 753(1) as it now reads, the court shall find the offender to be a dangerous offender if it is satisfied that the index or predicate offence for which the offender has been convicted is (i) a serious personal injury offence as defined in paragraph 752(a), (ii) if that offence forms part of a pattern of repetitive or persistent aggressive behaviour by the offender, showing a failure to restrain his or her behaviour, and (iii) if the offender has been found on the evidence to constitute a threat to the life, safety or physical or mental well-being of other persons.
[255] In approaching a dangerous offender application like this, it should be remembered that Part XXIV of the Code contains extraordinary sentencing tools. Unlike most sentences that focus on deterrence and denunciation and the other factors enumerated in s. 718, it deals with circumstances where it is alleged that the offender’s liberty must be restricted by a sentence that is imposed for preventative reasons. It is focused on protection to ensure that particular offenders found to fall within its ambit are prevented from posing serious safety and harm risks to the public as a result of being in a position to reoffend.
[256] The provisions go beyond the sentencing factors and considerations in Part XXIII and restrict liberty in situations for which a restriction is otherwise unavailable beyond a determinate sentence. Indeterminate incarceration legally mandates detention beyond any appropriate range of sentence for the predicate offence. It does so to protect the public against a serious violent act that has yet to occur. An LTSO permits a restriction on liberty for up to 10 years after a sentence has expired. As such, given the parameters of Part XXIII and the availability of s. 810.2, and given that most offenders receive determinate sentences even though there are high rates of further reoffending, it is plain and obvious that the violence that is at issue in an application brought under Part XXIV must be serious violence within a context of violent offending, and that s. 753(1) addresses a particular subset of violent offenders.
[257] Given the importance under our law of the offender’s ultimate liberty interest and the preventative aspect of the restriction, these extraordinary tools are not to be applied casually. Their impact on the offender, justified by the need for public safety, suggests that the record before the court about the offender must demand the imposition of such an extraordinary remedy. One does not err on the side of a dangerous offender designation and indeterminate detention or an LTSO out of “prudence” or “an abundance of caution.” The evidence must leave the court with no alternative choice based on criteria that must be made out by the Crown beyond a reasonable doubt.[^49]
[258] The purpose of the Part necessarily informs the interpretation and application of the section. Section 753 defines the specific kind of threat that is the focus of Part XXIV. Section 753(1)(a) presents a process for identifying the offender and defines the risk of interest that potentially calls for preventative detention. The section requires proof of acts by the offender and proof that the offender’s conduct meets one of the three criteria, two of which are relevant here (s. 753(1)(a)(i) and (ii)). If the criteria are made out beyond a reasonable doubt, then the 2008 amendments dictate a finding by the sentencing judge that the requisite threat to public safety is present and requires that the offender be designated a dangerous offender.
[259] Section 753(1)(a)(i) requires all of the following: (i) a pattern of repetitive behavior, (ii) a predicate that must be part of that pattern, (iii) a pattern that shows a failure to restrain behavior in the past, and (iv) a pattern that must show a likelihood of death, injury or severe psychological damage to others through a repeat of that pattern in the future. Similarly, s. 753(1)(a)(ii) requires all of the following: (i) a pattern of persistent aggressive behavior, (ii) a predicate that is part of that pattern, and (iii) a pattern that shows a substantial degree of indifference by the offender respecting the reasonably foreseeable consequences of that substantial indifference. The purpose of the dangerous offender provisions demands that a specific pattern be made out.
[260] The presence of the requisite pattern is the legislative safeguard for risk prediction, and as R. v. Lyons shows, a robust and specific pattern decreases the risk inherent in making that prediction.[^50] As such, the need for the predicate offence to form part of that pattern is a safeguard. It establishes the nature of the conduct under consideration and it confirms, where so found, that it continues unabated. It serves as the anchor for the inferential leap relative to risk that is required in making a dangerous offender designation.
[261] The Alberta Court of Appeal explained in R. v. Neve that the determination as to whether the offender constitutes a threat of the kind specified under s. 753 involves vital analysis at every step. It requires careful focus on what can be weighed, what must be weighed and what cannot be weighed at each stage and for what purpose.[^51] The essence of the threat must be kept in mind: a threat to the life, safety or wellbeing of others as described under s. 753(1)(a). The fact that the 2008 amendments removed the court’s discretion once the criteria are met does not suggest that courts should operate mechanically or robotically. If anything it suggests that courts must be more rigorous in their analysis as to whether the criteria have indeed been satisfied.
[262] The conduct that forms part of the pattern assessment must be conduct that is criminal. If the conduct is not criminal conduct then the Crown is obliged to call evidence of the conduct and prove the conduct beyond a reasonable doubt. No conduct can form part of the pattern unless it has been proven to that criminal standard. The pattern is made up of acts by the offender, actual behaviour, not his or her character or reputation, and the predicate offence must be a serious personal injury offence. R. v. Neve shows that not all criminal behavior forms part of the pattern.[^52] The pattern must rest on offending that is defined by s. 752(a) or (b). If the predicate forms part of the pattern then the pattern must reflect the seriousness of the predicate.
[263] Sections 753(1)(a)(i) and (ii) both require repetitive conduct that shows itself to be ongoing, along with the predicate. The goal is to identify a pattern sufficient to form a sound basis for prediction. It stands to reason that fewer but very similar incidents may provide a basis for prediction especially when the predicate contains the same elements. But offences with variations may also provide a sound basis for prediction if their tone or severity of offending (gravity) is similar.
[264] What is at issue is the prediction, not of criminal offending but of a future violent act of substance. If the quality of the acts are similar or the same and there is sufficient evidence of their repetitive nature, there may be sufficient basis for a sound prediction that can justify preventative detention. The questions to ask are: Is there conduct that is sufficiently serious? Does it repeat in kind or quality? Is it tied to the predicate? Does the conduct demonstrate an inability to restrain behavior? Does that lack of restraint result in harm or injury? If any one of the elements is missing, there may still be a pattern of offending, but it will not be a pattern relevant for the purposes of s. 753.
[265] Evidence of a lack of restraint in the past, and evidence of its effect (death, injury or severe psychological damage or a likelihood of it) must in turn be combined with evidence of a likelihood of death, injury or severe psychological damage in future through a failure to restrain that same behavior. The indifference required for the second pattern is indifference that must be found in the offending itself, and it must rise to substantial indifference.
[266] Regardless of whether the behavior is alleged to fall under s. 753(1)(a)(i) or (ii), what is clear is that the criteria seek to identify a certain type and frequency of conduct that presents an intolerable risk to the community because it dictates a conclusion that the next offence is a question of “when”, not “if”.
[267] The first element that must be satisfied under s. 753(1) of the Code before Mr. States may be found to be a dangerous offender relates to the nature of the predicate offence. The evidence must show that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of s. 752. Since serious personal injury offence is defined to include (i) an offence involving “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…”, this requirement is met as the parties concede. Mr. States has been convicted of aggravated assault and as such, it is acknowledged here that the assault offence against Mr. Henry is a serious personal injury offence within the meaning of the Code.
[268] On this application, the Crown seeks to have Mr. States designated a dangerous offender under either s. 753(1)(a)(i) or (ii). It is important at this juncture to again acknowledge the burden of proof that the Crown must meet on this application relative to dangerous offender status. In R. v. Currie,[^53] Lamer C.J.C. observed that the dangerous offender criteria under s. 753 do not require proof beyond a reasonable doubt that the respondent will re-offend. Such a standard would be impossible to meet. Rather, the Code requires that the court be satisfied beyond a reasonable doubt of the ‘likelihood’ that the respondent will inflict harm.[^54]
[269] This is an odd burden of proof since, technically, it is proof beyond a reasonable doubt of a future likelihood, but arguably a future likelihood can never be established beyond a reasonable doubt. Rather, as the court observed in R. v. Driver,[^55] quoting from LaForest J.’s reasons in R. v. Lyons,[^56] and referring to Morden J.A. in R. v. Knight,[^57] the notion that the burden of proof seeks to capture on this application is the likelihood or risk, not the certainty of future harm. It is not proof beyond a reasonable doubt that certain events will happen in the future “because in almost every case or in every case that would be impossible.” Rather, as Morden J.A. said in Knight, it is “the quality and strength of the evidence of past and present facts” together with the opinion of forensic psychiatric and psychological experts that provides a foundation for the court to make a finding of “the present likelihood of future conduct.”
The question of “pattern”
[270] Section 753(1)(a)(i) requires a pattern of repetitive behavior of which the predicate forms a part. The pattern must demonstrate a failure to restrain behavior. Section 753(1)(a)(ii) requires a pattern of persistent aggressive behavior of which the predicate forms a part. It must show a substantial degree of indifference regarding the consequences of that behavior. The predicate offence must embody the core conduct that it is alleged will occur again. Mr. States argues on this application that the requisite pattern identified under (i) and (ii) is not made out because the predicate is different from previous offending.
[271] The section requires a “requisite” pattern – conduct that takes its cue from the predicate such that one can or could say that the predicate is the last straw. It stands for the proposition that the conduct of the past continues unabated, and “but for” an intervention, it will continue.[^58]
[272] There are two categories of pattern cases. The cases of Pike and Neve are about pattern analysis, looking at the pattern as a whole. Hogg, Dow and Langevin are cases that look to the similarities that must be present between the offences that make up the pattern.
[273] As Levine J.A of the B.C. Court of Appeal wrote in R. v. Pike[^59] the issue is the role that the predicate offence plays in the analytical process – the required relationship, if any, between the requisite pattern of past conduct and the assessment of future risk. The Crown had argued there that the relationship is limited. On this theory, although the predicate offence might be insufficient to justify a dangerous offender designation, as the Crown conceded in Pike, its main purpose is to open the door and give the court the power to declare the appellant a dangerous offender, largely on the basis of his past offences. On the other hand counsel for the offender argued that the pattern defines the risk.
[274] The court in Pike agreed with the appellant’s position, supported by the text of the legislation as I have repeated it above, that in assessing an offender’s risk to reoffend, it is his risk to reoffend by acting in accordance with his established pattern of behaviour, or by failing to restrain that pattern of behaviour, that must be assessed ̶ not his risk to reoffend in some manner other than that. Levine J.A. continued at para. 80:
The “threat” under s. (a) is to be determined “on the basis of evidence” of a pattern of behaviour under ss. (i) or (ii). That pattern, in turn, must be linked to the predicate offence.
Breaking any of these connections ̶ between the predicate offence, the pattern analysis or the threat assessment ̶ distorts the careful balance of the provisions, and risks serious injustice. This is revealed more clearly when one considers the provisions broadly.
The predicate offence is not a meaningless, statutory trigger. It is a “last straw”, described by Marshall J.A. in R. v. Newman (1994), 1994 CanLII 9717 (NL CA), 115 Nfld. & P.E.I.R. 197 at para. 69 (Nfld. C.A.) as a “one last act of serious personal violence to anchor the offender’s pattern of pre-existing unrestrained or uninhibited behaviour”. It takes its significance, in part, from the fact that it demonstrates that the relevant pattern of behaviour continues. As Marshall J.A. explains, it serves an important purpose:
“[i]t guards against visiting one of the most serious criminal sanctions upon someone who has essentially abandoned a past pattern of intensely serious violence on the basis of a relapse of relatively less grave proportions” (at para. 72). This explains why the pattern and predicate offence must be related. It would be inconsistent and unfair if the ultimate threat determination were to be made on the basis of a perceived threat unrelated to either the predicate offence or the pattern of behaviour it reveals as still persisting. [emphasis mine]
[275] Thus, the pattern analysis is inextricably linked to the ultimate threat assessment, and as the court found in Pike, it is the basis for predicting the future behaviour which threatens others. The Alberta Court of Appeal decision in Neve confirms that the two are linked in the sense that “the court cannot make a determination that an offender constitutes a threat in the manner specified in s. 753(a) except on the basis of evidence that meets at least one of the specified behaviour thresholds.”[^60] The Court in Neve went on to state (at para. 110):
We read s. 753(a) as requiring that the court be satisfied on two points: (a) that the predicate offence is part of a pattern of behaviour which has involved violent, aggressive or brutal conduct; and (b) that it is likely that this pattern of conduct will continue and will lead to conduct endangering the life, safety or physical well-being of others [Emphasis added.]
[276] In Dow, Lambert J.A. made comments to the same effect:[^61]
The elements of subpara. (i) of para. 753(a) are: (1) that there be a pattern of repetitive behaviour revealed in the offences and that the pattern be present in the offence which gave rise to the dangerous offender proceeding; and (2) that the pattern of repetitive behaviour contained two essential elements: first, a failure to restrain the relevant repetitive behaviour and, second, a likelihood of causing death or injury through a failure to restrain that behaviour in the future.
So there must be a pattern revealed by repetitive behaviour; the pattern must contain an element that the dangerous behaviour was not restrained in the past; and there must be a likelihood that the same behaviour in the future will not be restrained and will cause death or injury.
[277] Feldman J.A. of our Court of Appeal has also spoken of the pattern requirement in Hogg[^62] where she referenced paragraphs 21, 24, 25 and 26 of R. v. Dow[^63] and paragraph 72 of R. v. Newman[^64] and then summarized as follows:
To summarize, 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 raised by Marshall J.A. - 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.
[278] I can do no better than to state that I agree unreservedly with these views and Feldman J.A.’s summary, relative to the importance and interaction of the predicate offence in the analysis the court is required to undertake relative to the overall conduct of the offender.[^65]
Character of the predicate offence
[279] While the predicate offence is perhaps superficially similar to Mr. States’ many other offences in terms of its relation to Mr. States immersion in drug subculture and its violence, the evidence shows that the predicate offence is markedly different from Mr. States’ prior offending. It is markedly different for a number of reasons, but of central importance, because unlike all of his other conduct, it was not initiated by Mr. States.
[280] Mr. States was walking down a street. It does not matter whether he was in a good mood or a bad mood. Whether he was in possession of a knife or not is irrelevant. Section 753 has no interest in whether Mr. States possessed a knife or not because possession of a knife is not an act of violence unless that knife is used instrumentally during an offence. Use is the concern, not possession.
[281] I emphatically note that there is no evidence here that Mr. States had planned any act or was looking to offend. There was no evidence of any drug consumption or drug dealing or trafficking conduct that might have set him off. He was simply walking up the street after attending a baseball game at Moss Park and having enjoyed an order of Smoke’s famous poutine.
[282] The context of the predicate is also significant because the evidence showed that the area where the predicate offence occurred is exceptionally unstable. The presence of Seaton House on George Street, with its burgeoning population of homeless men with serious substance abuse addictions and issues, set the stage and provided the context for what transpired on June 12, 2013. Mr. States was present in that unstable area. Indeed, at trial the victim, Mr. Henry, who may or may not have been one of the aggressors, described the tenor and temperature of George Street outside Seaton House on a hot June evening as “chaotic.” All the men involved were from that area, either local residents of that drug infested quadrant of downtown Toronto, or actual residents of Seaton House. They were all part of the drug milieu. The men present in the area of Seaton House that hot early summer evening were unpredictable and volatile, a product of their environment.
[283] The evidence is plain that a group of men took issue with Mr. States over some matter. Though I accept that both those men and Mr. States may have exchanged words, it was they initiated the contact with him and triggered the dispute, not the reverse. They were the ones who initiated the interaction that led to the predicate offence. They plainly commenced assaulting Mr. States – that evidence is uncontroverted. They were men who were known to each other from that neighbourhood, and from their shared addictions and historical knowledge of each other. Those relationships with Mr. States appear on the evidence to have been shaped by drug taking or drug dealing or both. This formed the background and context of the dispute.
[284] The men who assaulted Mr. States appeared to have had little fear of him. The evidence shows that the ultimate victim, Mr. Henry either followed Mr. States up the street and remained in close proximity to him as an observer, or was actually a participant in the assaults that were being perpetrated against the offender as he initially moved backwards up the street from Seaton House to Gerrard Street, to the corner, where the ultimate confrontation and predicate offence occurred. I also agree with defence counsel that Mr. States’ historical familiarity with these men would have afforded him knowledge of the risk these men presented. The participants in this melee all knew each other, from their long time residency in the area, or from their prior drug or alcohol-related interactions
[285] This background does not facilitate an analysis of Mr. States’ behaviour in the context of the requirements of s. 753. The circumstances of the predicate offence do not fairly permit an assessment of Mr. States’ violent impulses. Rather, the predicate offence speaks to the effect that drugs and alcohol have on Mr. States’ judgment in a volatile setting where Mr. States reacted to an assault.
[286] In my view, that is the factual context and perspective in and from which his actions and behaviour must be viewed. At the end of the day, the jury found him to be at fault. That finding is total understandable. He had exhibited conduct that was no better than that of his aggressors and that must be seen as the basis upon which the jury found that his response to their assault, at the final moments of the altercation when Sgt. Tillsley was on scene and had ordered them all to disperse, could not reasonably be interpreted or found to be in line with self-defence. Important to that conclusion is the Crown’s concession that there was no deliberation to Mr. States’ conduct.[^66] If this were an ordinary sentencing, where only a determinate sentence could be sought, I have no doubt that the context of the unfolding of events here would have played an important role in potential sentence mitigation.
[287] The Crown also acknowledged the different nature of the predicate offence. He sought to frame it as an escalation in Mr. States’ conduct. He said it was unlike his past, focusing on the use of a knife to define the “escalation” and the level of “violence.” However, I find that it is inappropriate to characterize the facts of the predicate offence that way relative to Mr. States prior conduct, what causes him to behave as he has, and whether there is real risk that his conduct will continue.
[288] The predicate in this case was entirely situational. It was driven by its location and its culture. Had Mr. States chosen to walk up a different quieter adjacent street to his home on Gerrard Street, a street where he would not have been confronted and assaulted by other drug dealers and substance misusers, one can be forgiven for thinking that the predicate offence would never have occurred.
[289] As a drug addict, Mr. States had been beaten in the past. It is part of the life. How am I to gauge whether he will be attacked again in future and will “over defend” himself? How am I to decide whether the failure to meet the threshold of self-defence constitutes the requisite lack of restraint, or that it shows a substantial indifference to the health or safety of others given the context? In its memorandum of law the Crown has argued that the context of self-defence and the circumstances of the offence should be ignored. That may be legally correct, but for the purposes of the analysis required under s.753, I find that it would significantly distort what actually happened and that in the context of an analysis if the quality of behaviour, the circumstances of the predicate offence must have meaning as part of the “pattern” analysis.
[290] There is significant uncertainty about exactly what the facts were relative to the last few moments before the predicate offence occurred, particularly pertaining to the knife. My re-examination of some of the trial evidence, including the hospital record diagram showing the injury to Mr. States hand does not assist in achieving certainty, but only adds to the uncertainty. That record shows a deep cut across the top of a digit that required stitches. A portion of the flesh at the top of his thumb was cut off. Importantly, the direction of the two cuts is totally different.
[291] That difference and the knowledge about how the blade of the knife locks and folds, makes it difficult to conclude that those injuries could have been caused by the knife blade folding back on Mr. States hand as he stabbed Mr. Henry. Perhaps one cut was caused that way, but the other is more consistent with Mr. States having actually received a knife wound inflicted by Big Vicious, as he testified. That would add weight to his evidence that he was stabbed and then the knife dropped and only then did he pick it up and have it in his possession. Moreover, Mr. Henry’s testimony that he knew that Mr. States’ hand was cut before he was stabbed supports that view. It makes no sense that he could have known and have testified that Mr. States’ hand was cut before the stabbing, unless he was close in to the melee and possibly one of Mr. States’ aggressors, and was facing Mr. States in the seconds before the stabbing, contrary to his own evidence.
[292] Sgt. Tillsley’s evidence does nothing to refute this likelihood. All that can be said of his evidence, as described above, is that it provides an account of the sequence of events and puts Mr. States in possession of the knife at a time just before the stabbing that allows the officer to see him use the knife. As I have explained above, self-defence was put to the jury but understandably rejected, in my view, due to an analysis surrounding the last moments of the incident, although exactly why it was rejected remains unknown. However, I reject Crown counsel’s assertion that even if the jury accepted that the situation arose in a self-defence context, as the evidence showed, that they could not have rejected Mr. States’ claim of acting in self-defence at the critical moment, as they did. I have explained my reasons for that conclusion in paragraphs 97-99, above.
[293] The central point, in my analysis, is that the situation and circumstances of the predicate offence create an artificial and forced scenario in which to assess Mr. States for a dangerous offender designation. It was an unpredictable and dynamic situation that unfolded in moments, and was not instigated by Mr. States. Regardless of whether self-defence was accepted, it is reasonable to accept that Mr. States’ would have been in a state of reactive fear in the moments before the stabbing occurred as the melee reached its fever pitch at the corner of Gerrard and George Streets.
[294] These multiple elements do not assist or permit a clear assessment of Mr. States’ actual behaviour in those moments. This is not a “last straw” event of the type described in Newman, and in my view it does not and cannot provide a foundation for a prediction of likely future conduct. This incident can only serve to confuse and distort the data and the prior pattern of Mr. States’ actual conduct. This, it would seem, is why the Crown is left to rely on this event constituting an “escalation” of Mr. States’ prior conduct. There are no other connectors that would otherwise cause it to be connected with the pattern of prior conduct as the analysis in Pike and the other decisions require.
[295] The Crown claims support for its position in the opinion of Dr. Pearce. He formed an opinion of the predicate and defined it as an escalation, but respectfully, as I have explained, Dr. Pearce did so without a full appreciation of the incident. He did so because he saw a distinction with Mr. States’ past conduct, but he did not inquire into the detail of the predicate. In terms of the significance of that event, for Dr. Pearce the conviction said it all and was all he needed to know, combined with the brief statement of facts provided to him by the Crown. This kind of approach is specifically disapproved of in Neve.[^67]
[296] Dr. Pearce evidently saw no need to read transcripts about the event, nor did he read my charge to the jury. As such, given the limited extent of his understanding of what actually happened, his understanding and definition of the predicate event as an “escalation,” seems to me to be little more than an argument – based on the use of the knife and a wound, rather than an opinion founded upon a true understanding of the nature of the event in question. It is conclusory without a connected foundation. Dr. Pearce testified that Mr. States should have called 911 or shouted for help, but in the context of the chaotic circumstances on George Street on that hot summer evening and who the participants were and the history they shared with each other, I regard that as an unrealistic suggestion. In any event, the failure to respond in this way does not seem to me to be relevant to the assessment of behaviour that s. 753 calls upon me to undertake.
[297] The end result is a stabbing. Mr. States’ criminal record has most often involved exploitive or “instrumental” violence, usually undertaken as the records make plain, to further his substance abuse lifestyle. His targets were usually men of the drug milieu. He would use force to steal. This in turn is different from offences he committed involving women when he was high, and this, in turn, is different from his impulsive responses or reactions to perceived slights, either at the behest of others in the drug-subculture community, or corrections officials. There is no “pattern” that can be found in or made out of general, largely petty crime alone, or of violence alone.
[298] Drs. Gojer and Pomichalek both testified about the predicate offence. Both accepted the verdict, but both of them had also had read the transcripts. Dr. Gojer went further and also read my jury instructions to understand the dynamics of the issues that were present at trial based upon the evidence that he read. Both Drs. Gojer and Pomichalek believed and testified that in their opinions, the context was important. Both saw the initial assault of Mr. States as important. From their respective psychiatric and psychological perspectives, both saw the offence as involving affective violence: violence that is reactive and emotionally driven. Both saw a role of fear as a driver of Mr. States’ conduct. Both saw and opined that this predicate offence was different from Mr. States’ past offending.
Character of past offending conduct
[299] It is evident that Mr. States has amassed a long criminal record that contains many offences, including numerous offences exhibiting varying degrees of violence. He has been convicted of what appears to be a total of [93][need to double check from record or submissions] criminal offences dating back to 1989 (including the index offences). He has approximately 22 convictions for assault-type offences, 4 convictions for robbery, 5 weapons-related offences and seven convictions for threatening bodily harm or death. The balance of his offending record relates to possession of illegal drugs, for his own use or for trafficking.
[300] Crown counsel contends that all prior attempts to curb his allegedly violent offending behaviour have failed. Indeed, Crown counsel now contends that the predicate offence, and his behaviour in the few years that preceded it, suggest that Mr. States’ behaviour is now becoming more violent.
[301] The Crown observes that Mr. States’ record is also replete with drug trafficking convictions and breaches of court orders. He has 5 previous convictions for failing to comply with his recognizance and 9 convictions for failing to comply with his probation. He was also subject to a number of weapons prohibitions at the time of the offence.
[302] The record as a whole as the Crown has presented it is plainly a core factor that Dr. Pearce relies upon in support of his risk assessment of Mr. States. Quite apart from the facts underlying the offences, or the “gist” that can be gleaned from the various police records, Crown counsel argues it is clear on the face of his criminal record that Mr. States has exhibited a pattern of behaviour that brings him within section 753(1)(a)(i) and (ii). In the Crown’s submission, his past conduct, including the conduct that gives rise to the predicate offence, suggests an inclination towards a lack of anger management and a drug-related lifestyle that appears to have continued for close to 25 years. In many instances, weapons have been used or referred to as well. He has fled the scene on a number of occasions. In several instances bodily harm has occurred.
[303] Dr. Pearce takes the position in his opinion that there is a wide victim pool, and that this, in and of itself, constitutes a pattern for the purposes of s. 753(1)(a)(i) and (ii). It is argued that Mr. States’ allegedly violent offences do not arbitrate between young or old, male or female. Crown counsel characterizes Mr. States as a person who attacks or commits offences against strangers and those that are known to him. There is also a geographic component to the Crown’s perspective, which I do accept, that most of the offences, save for those few committed while in Nova Scotia many years ago, have all occurred in the downtown core and particularly around the drug infested Queen and Sherbourne area of downtown Toronto (Moss Park/Seaton House area).
[304] Crown counsel draws particular attention to several offences. For example, in the case of the trafficking cocaine offence conviction entered on April 8, 2003 that also gave rise to a robbery and assault charge, it is plain that Mr. States tried to rob an undercover officer and punched him, causing some bodily harm that consisted of a cut lip. This offence is characterized as a deliberate attempt by Mr. States to take advantage of someone he perceived as needing to buy drugs, who was a drug user. While it is obvious overall that an undercover police officer was not one of these people, Crown counsel seeks to elevate the calibre of this offence and characterize it as an occasion where Mr. States thought he could take advantage of a vulnerable person.
[305] In the absence of a transcript of what transpired at his sentencing, and my unwillingness to simply let the officer testify when there would have been no other independent evidence of what happened that day, Crown counsel had no alternative but to claim an alleged “dangerous offender” seriousness and pattern to that offence based on the mere fact that Mr. States pled guilty, spent 162 days in pre-trial custody and received a total sentence of approximately 18 months.
[306] The Crown claims for this offence, as for most of the others, that I should rely upon the mere police synopsis as evidence of a dangerous offender level of offence. Certainly, there was a verbal exchange between Mr. States and the undercover officer, and there is no doubt that Mr. States tried to rob the officer, that he acted out and that he punched the officer who suffered injuries, albeit minor, as the Crown concedes. Nevertheless, this is an example of Mr. States’ prior record that the Crown claims approaches a level of seriousness that it could form a part of a pattern of violence that requires the offender to be incarcerated indeterminately for the rest of his days. Although I agree that the offence was serious, and it is apparent that Mr. States spent a substantial period of time in custody as a result of the offence, the draconian nature of a dangerous offender designation requires more in terms of a pattern in my view.
[307] Another example of alleged dangerous offender level criminal conduct was Mr. States’ “aggressive behavior” on April 29, 2006 that led to an assault conviction on July 19, 2006. In that case, unlike so many of the other offences where little is known other than police synopsis of alleged events, there was a transcript that showed what was agreed to in court. The incident arose out of an argument that was followed by anger, and then a single punch to the neck of the complainant before Mr. States fled. Respectfully, this is hardly life-threatening behaviour. The Crown suggests there is aggravation because Mr. States was not arrested until 4 days later, but perhaps that was simply the inability of the TPS to find him. To suggest this is a particularly aggravating factor goes too far. It seems unlikely that Mr. States hiding in terror of arrest having been involved in an altercation where a single punch was delivered in the context of the drug culture lives that he and all of his compatriots lived in the Gerrard and George Street area where the predicate offence ultimately occurred. For this, Mr. States received credit for 77 days in pre-trial custody on a 2:1 basis, which equaled a five-month sentence as shown in the documentary records. Yet, Crown counsel seeks to characterize this as “a relatively serious offence on his record”, an offence that should have led to this dangerous offender hearing.
[308] The Crown also refers to the criminal history and various materials in support of the convictions, as evidencing that Mr. States was willing to tell lies to the Court in order to curry favour. Reference is made to page 7 of the transcript from the proceedings in court on July 19, 2006 where defence counsel refers to Mr. States having graduated from Acadia University and that he was on the practice roster on the Toronto Argonauts Football Club, and that as a result of this he had a drug addiction because he was injured playing football. Mr. States has noted this time and again and this is clearly at odds with what Mr. States has told the expert witnesses called in this case and the history contained in the file information. Regrettably, in my view, this contention seeks to embellish legally insignificant behavior into conduct that enhances the Crown’s request for a dangerous offender designation. Mr. States’ propensity to lie may have impact in his diagnosis, or his scoring on the various psychiatric and psychological instruments, but it is not conduct that usefully informs the propensity for violent conduct that Part XXIV of the Code is directed to address.
[309] Crown counsel also draws attention to the August 16, 2010 finding against Mr. States by Justice Khawly where Mr. States was found guilty of assault causing bodily harm against Ms. Gagnon. Crown counsel acknowledges that occurrence is different from most of Mr. States’ other assault convictions in that the victim was a female. Yet the effort is made, through linking that event to a drug and substance abuse lifestyle, to cause it to appear to be part of some unexplained pattern where there is violence, bodily harm and where Mr. States expresses his anger by lashing out.
[310] Finally, the Crown draws attention to Mr. States’ guilty plea in December of 2012 to an October 2, 2012 offence where it is agreed that Mr. States went up to a person outside of a McDonalds and struck him with an object in a sock and caused a laceration to the victim. It appears that Mr. States was angry and that he knew the girl the victim was with. He threatened and intimidated her as well. But he did not appear to know the victim or if he did it was minimal. However, there is no further information of what informed that behaviour. Crown counsel treats as aggravating that Mr. States ran away after the assault.
[311] At his sentencing, Mr. States apologized and told the court that he was taking steps to deal with his issues. He told the court his record was diminishing as he aged, a point the Crown accepts as true. But the Crown then seeks to diminish that statement by noting the periods of time Mr. States was in custody for most of that time “so one should view any supposed gaps in that light.”28
[312] In the 5-6 years before the predicate offence Mr. States was out of custody for no longer than a couple of months at a time. The only dates that he was not in custody between the end of 2007 and June 2013 were March 10, 2013 to June 18, 2013 (the index offence) and other equally short periods going back to 2008. The problem with this evidence is that it simply records when he was in custody, and when he was not. As I discuss further later in these reasons, there is nothing in the bare fact of having been in custody that informs the question of dangerous offender status. If it was otherwise, we would not sentence repeat offenders, even violent repeat offenders to determinate ordinary sentences. We would simply incarcerate all of them indeterminately as dangerous offenders.
[313] I prefer Defence counsel’s interpretation of Mr. States’ record which is less general than the Crown’s. A criminal record itself is not a pattern. Ongoing offending with a violent component is not a s. 753 pattern. The case-law requires similarity in the behaviour that comprises the offending conduct. The case-law permits variations in the conduct, but this is far different from an argument that violent offending is a pattern in and of itself
[314] There is no question that Mr. States has a very long record of criminal antecedents. As defence counsel willingly conceded during the hearing, he has a chronic history of offending criminally. But despite the length of that record and the variety of its scope, a criminal record is not a pattern. Merely having a record of ongoing offending with a violent component does not constitute a pattern under s. 753. Respectfully, I find that the Crown’s characterization of pattern is too broad and general within the context of proceedings like these, given the purpose of Part XXIV and the consequences that flow from a dangerous offender designation. The case law requires similarity in the offending conduct or behaviour. It also clearly permits variations in the conduct, but I find this to be far different from an argument that violent offending is a pattern, in and of itself.
[315] If the s. 753 “pattern” is to be found within the criminal record, it emerges following an assessment of the circumstances of the offences to identify the offender’s conduct. The case law has moved away from requiring striking similarity between offences as the number of offences increases. Where the incidents are few, close similarity is required. Where the incidents are numerous variations are accepted so long as core similarities remain.
[316] It is important to remember, however, that his does not mean that the existence of a long criminal record obviates the need for pattern analysis given the repeat violence. Simple repeat violence is not the focus or interest of a dangerous offender hearing, and neither is the simple question of whether an offender will reoffend “violently.” What is of interest to a dangerous offender hearing is whether the offender has committed serious violence and will again commit serious violence. All offences with injury or violence are “serious” and cannot be taken lightly, but the serious violence of that is the focus of a dangerous offender application is of a different calibre.
[317] Plainly, Mr. States’ offending has exhibited violence, but in my view, his violence does not rise to the level of gravamen of violence that a dangerous offender application seeks to paralyze with indeterminate incarceration. When an offender is designated as a dangerous offender, he is an offender for whom indeterminate incarceration is appropriate, necessary and presumed. That defines who the class represents and who must be included in it.
[318] Mr. States’ offending has been persistent, but that is at least in material part the product of Mr. States being an addict and having the life that comes with that serious substance abuse problem. He has lived in a manner and in locations that have permitted it to continue. Substance abuse is a major problem. His brother, Cecil States, may have offended in a different way, but Cecil States continued to offend throughout his life and until he stopped taking drugs. It did not stop until he succeeded in breaking his substance abuse affliction.
[319] But no one has suggested that Cecil States has a personality disorder. The reason, as Drs. Gojer and Pomichalek explained, and as Dr. Pearce seemingly reluctantly accepted at least in part, is because the DSM-5 explicitly cautions that substance abuse disorder can manifest itself in a manner that bears similarity to personality disorder. That too is also the point that emerges from Cecil States’ remarkable turn-around of his life of criminality, by treatment that freed him from his substance use disorder. In the absence of the hard wired criteria that mark psychopathy and the presence of personality disorders, the absence of teenage and early adulthood misconduct, care needs to be taken to ensure that we designate as dangerous offenders people who are addicts and afflicted by substance use disorders, just because they need help stopping their addiction.
[320] There is also difficulty with the overbroad and generic effort of the Crown to put forward a “pattern” that can meet the requirements of the jurisprudence. The Crown has not specifically identified the offences it relies on for pattern, nor has it stated the basis for the alleged pattern so that the defence can address those offences. In proceeding in this generic way, with the highest the Crown’s case ever rising being to the presence “of a thread” of violence, and hence in Crown counsel’s submission the alleged requisite pattern, I agree with defence counsel that effectively the defence has been denied the opportunity for argument because the pattern alleged by the Crown is simply too general and does not exhibit the characteristics that the caselaw, particularly Neve, Pike, Dow, Hogg and Langevin all require. The mere existence of a criminal record, no matter how lengthy, does not amount to a pattern.
[321] Nevertheless, Crown counsel also acknowledged that the predicate offence was an aggravated assault and therefore the convictions of interest in the past must also be violent acts. The Crown conceded that there were “a variety of offences committed” and that “no case is exactly the same”, but argued that there were “constant themes” that could be identified. However, a review of the items for the theme reveals the themes of the drug subculture, a generally same location, the presence of a variety of different victims, and crimes that were opportunistic.
[322] Respectfully, I find there is no basis upon which these can be identified as pattern conduct items. Rather, they are simply the presentation of context. The Crown cites the presence of violence/aggression and spontaneity/impulsivity as evidence of pattern, but the inability to restrain behaviour is a conclusion required by the statute. Collectively I found these submissions to be unspecific and not helpful in identifying a requisite pattern, the kind of pattern that can support the risk prediction that lies at the heart of dangerous offender proceedings.
[323] I would conclude this portion of my reasons by juxtaposing against this case another case involving another “Christopher” that came before me for a sentencing hearing the day after I heard counsel’s final submissions in this case. That was the matter of R. v. Christopher Goulbourne.[^68] Mr. Goulbourne pleaded guilty before me to a home invasion robbery while armed with a firearm, involving aggravated assault and the use of an imitation firearm.
[324] The events happened on Tuesday, December 9, 2014 on Sherbourne Street in Toronto. The victim was sitting at his computer in his third floor apartment listening to music at about 8:30 p.m. when he heard a knock at his front door. He ignored the knock since he was not expecting a visitor. Approximately two minutes later he heard knocking for a second time. As he went toward his front door, it was kicked in.
[325] Four males entered his apartment, one of whom was Mr. Goulbourne. A handgun was pointed at the victim and the four males repeatedly threatened to shoot him. Mr. Goulbourne demanded money, jewelry and other valuables while the gun was pointed at the victim. As the victim began to hand over his property, he was punched, kicked and choked by Mr. Goulbourne. In order to try to escape, the victim told the males that he had some money by his laptop computer located at the rear of his apartment near the patio door and balcony. When given the opportunity to retrieve that money, the victim ran for his balcony and jumped over the ledge. He waited for the four males to leave his apartment before pulling himself back up over the ledge onto his balcony. He was lucky to survive. If he had fallen he would have been severely injured or killed. He then went to his neighbour’s apartment and called 911.
[326] Ironically and telling relative to that offender’s behaviour was the fact that only two weeks before he committed the home invasion robbery, Mr. Goulbourne had committed an armed bank robbery on November 24, 2014. The robbery was brazen. He and an accomplice armed themselves, disguised themselves and then strode into a TD bank on a busy Sunday afternoon, demanding that everyone get to the ground. Dozens of people were there. Adults with elderly parents, a dad cradling his baby, and another dad hoping to open his 11-year-old daughter’s first bank account.
[327] The customers and employees were all ordered to the ground. While the accomplice was focusing his pistol on the customers, Mr. Goulbourne was seen on video striding, boldly, towards the teller’s counter with a shotgun. He hurdled the counter and demanded $5,000. The tellers were afraid and nervous and had difficulties punching in the right codes to withdraw the cash. Ultimately, one of the tellers got up off the floor and asked if she could do the withdrawal. Mr. Goulbourne put the shotgun in the small of her back and told her to get the money. He was given $1,500, which he stuffed in a bag. He jumped back over the counter and then he and his accomplice fled the scene
[328] By the time he came before me for sentencing, Mr. Goulbourne had already been tried and sentenced in the Ontario Court of Justice for the TD Bank robbery. He was convicted of robbery with a firearm and wearing a disguise, and on November 17, 2016, Justice K. Doorly sentenced him to seven years in the penitentiary, less three-years’ credit for two years of pre-trial custody on an enhanced basis.
[329] The offender’s criminal antecedents were both lengthy and increasingly serious, a two and a half page record including violent crimes that started when he was still a youth and progressing to robberies as an adult in 2008 and 2016, the last offence being with a firearm, a shotgun, when he robbed the TD Bank in 2016 two weeks before this home invasion was perpetrated. In addition, he had committed a break and enter offence in 2008 and was convicted of possession of a firearm in 2011. Until he was sentenced for the bank robbery, his highest prior sentence was 19 months’ imprisonment, but nevertheless, he proceeded to commit more brazen, serious and violent crimes, plainly showing a failure to learn from his prior conduct and sentences. I found there was “plainly a pattern here of accelerating and unrestrained violence” that was seriously aggravating in nature.
[330] I recount this story here because there was no application for a dangerous offender designation in that case, despite there being an obvious pattern to at least the last two robbery offences, along with a serious and materially aggravating criminal record that showed a pattern of increasing indifference to the harm that his actions might cause to others. That is not to say all such aggregations of offending should result in the offender being sought to be classified as a dangerous offender, but rather to show the deficiency of the evidence in this case achieving the requisite pattern, as contrasted to another case where there clearly appears to have been pattern. The pattern in that case of increasing violence and indifference was plain and obvious. In this case, for the lengthy reasons set out above, it is not.
Does Mr. States have a personality disorder or a substance use disorder?
[331] Dr. Pearce believed Mr. States had a personality disorder that had caused him to offend. This opinion was in large part a purely clinical opinion fueled by the PCL-R score. Dr. Pearce agreed that he believed a personality disorder was present due to (i) his view that the predicate offence was an escalation of his criminal behaviour that defied burn out, and (ii) the PCL-R score. Dr. Pearce testified that he rejected Mr. States’ explanation of the predicate offence and defined his explanation as a minimization given the conviction and the jury’s verdict.
[332] Advised that the jury had been left with self-defence and that the facts established a confrontation of States by others, Dr. Pearce was unmoved. Yet his evidence appeared to establish that this account of the predicate, which he said was offered at the commencement of the interview, shaped his perceptions of Mr. States’ insincerity, which were reinforced by comments he observed in documents, which he accepted as reliable, accurate and true. There was no question of weight. The comments were accepted because they converged with Dr. Pearce’s opinions. This diagnosis of Dr. Pearce seemed to be relevant to the time the doctor believed was required for community supervision, notwithstanding that Dr. Pearce conceded that he recommended a 10 year LTSO as a matter of habit.
[333] Dr. Pearce had available to him other forms of testing able to assist him with his diagnosis. He testified that he knew the seriousness of the application. He had no budgetary constraints. He had access to psychologists. He acknowledged that he worked shoulder to shoulder with psychologists. He acknowledged their use of psychometric tests for NCR matters and other assessments. However he testified that as a rule he saw little utility in working with a psychologist on a private dangerous offender assessment – other than for cognitive testing. He cited concerns with budget and scheduling as reasons that caused him to avoid psychologists, even though he conceded that a psychologist could provide useful information.
[334] Drs. Gojer, a psychiatrist with experience in diagnosing disorders and treating offenders, and Pomichalek, a psychologist with experience in the treatment of personality disorders, believed that Mr. States had borderline traits that emerged when he was disinhibited. These contributed to his offending. Surprisingly, Dr. Pearce in cross examination stated that he had seen borderline and narcissistic traits in Mr. States, yet in his report he failed to mention this, holding firmly to the existence of a personality disorder with anti-social traits.
[335] Drs. Gojer and Pomichalek testified that the borderline traits evidenced emotional instability due to poor development of self as a child. Both doctors believed that emotional instability contributed to Mr. States’ desire to take drugs and to his offending. Both recommended counseling to address the root of the instability (low self esteem, etc.) and programming to support abstinence and block dis-inhibition. Both believed that Mr. States would maintain progress through pride in accomplishment and the experience of the impact of gains (greater positive contact with family and return to parental position and relationship with son). These two doctors were assisted by the complimentary results of their separate disciplines, and broad collateral family information unavailable to Dr. Pearce (who conceded that first hand contact with family was better because it provided richer information). Both doctors collectively spent considerable time with Mr. States and both were aware of the full scope of his programming at the time of assessment.
[336] Neve again provides guidance as to how psychiatric or psychological evidence should be weighed. A court must consider qualifications, opportunity to assess a person, the materials reviewed, the nature and scope of the consultations, what the assessor relied on most, and the strengths and weaknesses of the materials provided.
[337] A point of interest was the way in which the doctors defined “substance abuse disorder”. Dr. Pearce defined it narrowly as conduct caused by ingestion of drugs. Drs. Pomichalek and Gojer understood the disorder to encompass more than simply the ingestion of drugs. For Drs. Pomichalek and Gojer, substance abuse disorder extends to the effects of the substance abuse disorder, including the persistence in substance abuse despite its disruptive effect in the user’s life, the anti-social conduct that drug seeking causes, and the changes in demeanour such as belligerence, irritability, “lability”[^69], etc. as defined in the DSM 5 (Exhibit 20).
[338] Both Drs. Pomichalek and Gojer took instruction from the DSM (Exhibit 20 substance abuse) and the DSM Personality disorder sections (Exhibit 18A and 18B) to ensure that personality disorder and substance abuse disorder were not conflated.
[339] It would appear that the lynchpin to Dr. Pearce’s diagnosis was the anti-social conduct that commenced in early adulthood, but as Drs. Gojer and Pomichalek pointed out, this conduct coincided with Mr. States’ substance abuse commencement.
[340] So, I am confronted with Dr. Pearce’s diagnosis of a PDNOS and the conflicting opinions of Drs. Gojer and Pomichalek, who acknowledge that Mr. States’ offending has shown moderately severe aggressive attributes continuously since his early 20’s, but who do not regard that as the manifestation of an intractably flawed personality, but rather as being secondary to a treatable condition, a serious substance and an alcohol use disorder. The question of whose opinion has more weight is important here because it goes to risk assessment and treatability.
[341] To permit a proper consideration of the expert opinions on this question, I think it is important to reproduce the criteria established in the DSM-5 for the diagnosis of General Personality Disorder. In my view, having regard to the psychiatric standards that must apply to the diagnosis, the answer is to be found in those criteria. They are as follows:
A. An enduring pattern of inner experience and behavior that deviates markedly from the expectations of the individuals culture. This pattern is manifested into (or more) of the following areas:
Cognition (i.e., ways of perceiving and interpreting self, other people, and events).
Affectivity (i.e., the range, intensity, lability, and appropriateness of emotional response).
Interpersonal functioning.
Impulse control.
B. The enduring pattern is inflexible and pervasive across a broad range of personal and social situations.
C. The enduring pattern leads to clinically significant distress or impairment in social, occupational, or other important areas of functioning.
D. The pattern is stable and of long duration, and its onset can be traced back at least to adolescence or early adulthood.
E. The enduring pattern is not better explained as a manifestation or consequence of another mental disorder.
F. The enduring pattern is not attributable to the physiological effects of a substance (e.g., a drug of abuse, a medication) or other medical condition (e.g., head trauma). [My emphasis]
[342] Importantly, the DSM-5 then goes on to indicate that “the diagnosis of personality disorders requires an evaluation of the individuals’ long-term patterns of functioning, and the particular personality features must be evident by early adulthood. The personality traits that define these disorders must also be distinguished from characteristics that emerge in response to specific situational stressors or more transient mental states (e.g., bipolar, depressive, or anxiety disorders; substance intoxication).” As Dr. Gojer emphasized during his testimony, it is the plain and obvious substance use disorder referred to in Criteria F that removes Mr. States from a diagnosis as having a personality disorder, and instead plants him firmly, in my view, in a different position of being a person who has borderline personality traits, but which are secondary to that lifelong substance use disorder.
[343] Two further references are helpful and reinforce the point. Under the heading of Differential Diagnosis, the DSM-5 provides three further notes of caution:
A personality disorder should be diagnosed only when the defining characteristics appear to be for early adulthood, are typical of the individual's long-term functioning, and do not occur exclusively during an episode of another mental disorder.
Personality disorders must be distinguished from personality traits that do not reach the threshold for a personality disorder. Personality traits are diagnosed as a personality disorder only when they are inflexible, maladaptive, and persisting and cause significant functional impairment or subjective distress.
Substance use disorders. When an individual has a substance use disorder, it is important not to make a personality disorder diagnosis based solely on behaviors that are consequences of substance intoxication or withdrawal or that are associated with activities in the service of sustaining substance use (e.g., antisocial behavior).
[344] In my view, these references establish much stronger support for the view that that Mr. States has borderline personality traits secondary to a serious substance use disorder than that he has an actual personality disorder. Two key factors guide me to that conclusion. The first is the absence of the “hard-wiring” originating in childhood, adolescence or early adulthood that results from youthful misconduct and that must be present if a personality disorder is to be found. The second is the express caution provided by the DSM-5 that when an individual has a substance use disorder, As Mr. States plainly does, it is important not to make a personality disorder diagnosis based solely on behaviors that are consequences of substance intoxication or withdrawal or that are associated with activities in the service of sustaining substance use (e.g., antisocial behavior).
[345] All experts agree that Mr. States does not have adolescent misconduct, but importantly, while his misconduct does start to emerge in early adulthood at about 22 or 23 years of age, by that time Mr. States also had become addicted to crack cocaine and had started down a road of serious alcohol abuse as well. Further support for this lies in the seeming matrix for so much of Mr. States historical offending having plainly been associated with activities in the service of sustaining his substance use. It arises primarily out of the antisocial behavior that exists between himself and others like him who are homeless, living in the Seaton House area, and whose sole daily direction in life is to have access to drugs and alcohol, and money to pay for their continuing addictions.
[346] For these reasons, I prefer the opinions of both Drs. Gojer and Pomichalek and find that Mr. States has borderline personality traits secondary to a serious substance use disorder, rather than a PDNOS as Dr. Pearce concluded in his opinion.
Conclusions on the application for a dangerous offender designation
[347] The statutory requirements for Mr. States to be designated a dangerous offender under 753(1)(a)(i) or (ii) require the determination to be made 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, or
(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 behavior.
[348] For the reasons set out above, I have found that the evidence presented on this lengthy dangerous offender hearing does not establish the presence of the requisite pattern that is the precondition to a finding that Mr. States is a dangerous offender. As such, that portion of the application fails, but I also find, based on the evidence that Mr. States does qualify as a long term offender and the balance of these reasons address the issues of his risk and treatability that inform that conclusion.
Findings on risk and treatability
[349] Having found that Mr. States is not a dangerous offender within the statutory tests, I turn to the question of whether he should receive a determinate sentence or both a determinate sentence imposed together with a long-term supervision order, as contemplated in ss. 753(5) and 753.1. To answer that question I have considered his circumstances, his risk of reoffending, and the evidence relative to treatability, all of which inform that determination. I also refer to the the scoring results that each of the three experts found in their assessments of Mr. States using the actuarial, psychiatric and psychological instruments that they rely upon to determine the presence of psychopathy and the risk an offender presents to reoffend.
[350] To estimate Mr. States likelihood of violent recidivism, Dr. Pearce scored Mr. States on the PCL-R, the VRAG and the HCR-20. Dr. Pearce initially scored Mr. States at 30 on the PCL-R out of a possible 40 points, with none of the 20 items omitted. A score of 30 places him in the 84th percentile with respect to a reference sample of North American male incarcerated offenders, i.e., Mr. States scored higher than 84% of the reference sample. A score of 30 on the PCL-R meets the criteria for a diagnosis of psychopathy (generally considered to be a score of 30 or higher). This would typically be considered a negative prognostic indicator. Of note, however, is that this instrument has an error margin of 3.5 points in either direction. It is also noteworthy that Dr. Pearce adjusted his score for Mr. States during cross-examination, reducing his score to 29, which is still in the upper range of risk to reoffend.
[351] Drs. Pearce, Gojer and Pomichalek all noted that the PCL-R is comprised of two factors or components, Factor 1 and Factor 2. Factor 1 measures interpersonal/affective style and Factor 2 measures indicia of behavioural dyscontrol. Dr. Pearce concluded that Mr. States’ Factor 1 score was 13 out of 20, whereas his Factor 2 score was 15 out of 20. In Dr. Pearce’s assessment, these scores place Mr. States at the 90th and 76th percentiles respectively, that is, at the high end or risk to re-offend.
[352] Dr. Pearce also is a strong believer in the VRAG as an instrument to assess the potential for violent re-offending. He scored Mr. States at +12, placing him in bin 6 out of 9 ascending groupings or “bins”. He considered this score to be moderate to high, suggestive of a moderate to high risk of violent re-offending. Similarly scoring individuals reoffended violently at a rate of 58% over ten years of opportunity in the community.
[353] Dr. Pearce scored Mr. States using the HCR-20, Dr. Hare’s preferred diagnostic tool for psychopathy, even though the DSM-5 does not actually recognize psychopathy as a diagnosis. On this instrument as tested by Dr. Pearce, Mr. States scored 32 out of a possible 40 points.
[354] It is significant, however, that Dr. Pearce reached that score assuming a near immediate release of Mr. States from custody two years ago, but respectfully, that has never been in the cards for this offender. So while this may be a high score and suggestive of a high risk of future violent behaviour, absent significant interventions, it specifically does not take account of the fact, as these reasons will show, that there was never a prospect here of Mr. States not being subjected to significant interventions over a number of years, regardless of whether he was designated a dangerous offender.
[355] Overall, taking into account the actuarial and clinical risk assessment tools in addition to Mr. States’ PCL-R score, Dr. Pearce concludes that Mr. States is in a moderate to high-risk category for violent recidivism.
[356] Turning to Dr. Gojer, he looks at the scoring differently, and brings clinical observations and assessment to bear. He willingly acknowledges that adding clinical opinion to the actuarial risk assessment results will necessarily alter the accuracy of the instrument relative to actuarial risk assessment. This follows because any external factor added to a supposedly carefully designed statistical evaluative tool will alter the validity of that tool and its research findings. It does so because the added factors will add non-actuarial considerations that will move the subject’s score away from the static or statistical norm.
[357] However, Dr. Gojer, like Dr. Pearce, and Dr. Pomichalek as well, is also a believer in the use of Dr. Hare’s Psychopathy Checklist Revised (PCL-R) as a behavior predictive instrument. It is not an actuarial risk tool, but rather a quantitative evaluative instrument to measure the construct of psychopathy. It has the benefit of being more readily influenced by dynamic rather than static factors. It is a tool that can measure change, rather than being rooted in the concrete of an offenders criminal antecedents. It has a forward looking aspect as well, and it is a tool that has frequently been used as a stand-alone risk prediction tool. A score of 30 out of 40 is the cut-off. Above thirty, one is labelled a psychopath.
[358] However, Dr. Gojer resists the notion that a simple determination of a cut off score can truly predict violence and he cautioned that an assessor has to be very careful in blindly adopting scores generated from the PCL-R. There is a simple reason for this. There are many individuals with high PCL-R scores who would come close to or cross the cut off and accordingly be labeled a psychopath, but who are not persons who break the law. But those persons are of no clinical concern to society, despite the presence of likely true psychopathy, simply because they do not break the law.
[359] Against this cautionary background in his testimony, Dr. Gojer scored Mr. States on the Hare Psychopathy Checklist Revised (PCL-R), the VRAG and the HCR 20 v. 3. Dr. Gojer also noted that there is a newer version of the VRAG but that he is cautious using it because it has not been well researched.
[360] On the PCL-R, he scored Mr. States at 24, as compared to Dr. Pearce’s final score of 29. While this score falls short of 30, and Dr. Pearce’s final score for the offender of 29, he acknowledges that it is still reflective of Mr. States’ problematic past. He regarded a score of 24 as being in keeping with the average penitentiary scores and noted that the score has a in built error range of + or – 3 that captures practical accuracy.
[361] On the VRAG, Dr. Gojer placed Mr. States in bin 5 of 9, compared to bin 6 of 9 by Dr. Pearce, with 48% of the normative sample reoffending “violently” in 10 years down somewhat from the predictive factor associated with Bin 6. He acknowledged that this score is reflective of a moderate to moderately high actuarial risk score, but noted it is lower than 52% of the sample that reoffended “violently” in 10 years.
[362] However, at root, Dr. Gojer is strongly critical of the utility of the VRAG as an actual risk preventive tool for the simple reason that it focuses primarily on the past and because it does not address severity of harm, who will be harmed or make any prediction regarding the imminence of harm. It does not respond to dynamic factors. It does not provide insight into how Mr. States would perform if he had therapy, what therapy he needs to alter his risk, or how aging and his personal medical problems, principally significant orthopedic problems in a middle aged man, would impact on his risk. The nature of the instrument permits no consideration of any of these factors but instead requires one to slavishly follow the table provided. If not, the accuracy of the prediction drops as an actuarial tool, but in my view, this is not a tool that provides meaningful assistance in circumstances like these where it is claimed that there are positive dynamic factors present that must also inform a fair, accurate and realistic assessment of risk.
[363] Turning to the HCR 20 v. 3, Dr. Gojer observed that a significant portion of the risk arising out of this assessment tool is also due to its emphasis on historical components. The design of the tool places less emphasis on clinical and dynamic components and greater emphasis on historical factors. It is plain on the evidence that a person who has been well rehabilitated, has completed all necessary treatment programs and has not reoffended for some time can, and likely will, still be scored in a moderately high manner based on the existence of a violent past. This is how Dr. Gojer sees Mr. States, noting that he has done well during this custody, has taken numerous programs, but that he is unable to shake off his past when tested on the VRAG. As such, Dr. Gojer distrusts the VRAG because in his opinion it distorts the true picture that Mr. States presents. And importantly, the VRAG score is still a component of the HCR 20 v. 3 score. So from Dr. Gojer’s perspective, while the tools in their pristine mechanics provide answers and predictors, they are fallible because they generally fail to consider ongoing dynamic factors, such as those present here.
[364] Finally, it is important to consider Dr. Pomichalek’s scores of Mr. States, not only on these instruments, in addition to the psychological tests referred to in my summary of his evidence.
[365] On the PCL-R-2 test, a newer version of the PCL-R used by Dr. Pearce, Dr. Pomichalek also noted the two dimensions or “Factors” to that test, the first, interpersonal and affective or emotional traits fundamental to the construct of psychopathy, and the second factor which describes behavioral traits associated with a chronically unstable and antisocial lifestyle and social deviance. These are the so-called “F1” and “F2” factors. Dr. Pomichalek scored Mr. States at a total PCL-R-2 score of 21/40, placing him at the 44th percentile, considerably lower than both Dr. Pearce and Dr. Gojer’s scores. That score has a practical margin of error of a ± three point spread, 95% of the time. Thus he found that Mr. States true total PCL-R-2 percentile rank would be between approximately the 25th and 71st percentiles.
[366] Dr. Pomichalek also focused on the F1 and F2 factors, as did Dr. Gojer, but less so Dr. Pearce. The details of Mr. States’ score on the first factor, the F1 factor, placed him at the 24th percentile relative to other male offenders. In other words, approximately 24% of male offenders scored below Mr. States on the first factor. This is the factor that measures interpersonal/affective style. However on the second factor, the so-called F2 factor, Mr. States scored much higher, at the 59th percentile. That is, amongst male offenders, approximately 59% would have scores lower than Mr. States on that factor, or put differently, he scores materially higher on behavioural factors which measure behavioural dyscontrol. Dr. Pomichalek relies on these differentials to reach his conclusion that the factors that emerge from Mr. States PCL-R-2 test show that he scores at only the 25% level relative to the elements that are the true construct of psychopathy, but that he admittedly scores at the much higher 59% level with behavioral traits associated with chronically unstable and antisocial lifestyle and social deviance. This, in his view, reinforces the diagnosis of an absence of personality disorder, but the presence of personality traits secondary to a substance use disorder.
[367] Finally, Dr. Pomichalek opined that Mr. States’ HCR-20 v. 3 profile contains a number of factors that are relevant to the assessment of his risk of violent offending. He has a history of violence, non-violent antisocial conduct, problems with relationships and with employment. He has an extensive history of substance use, of traumatic experiences, and he has a history of problems with treatment or supervision response. All of these factors caused Dr. Pomichalek to conclude his assessment of Mr. States under the HCR-20 v. 3 test as follows:
While Mr. States’ history contains a number of factors predictive of violent reoffending, his current psychosocial adjustment presents a different picture. He presents as someone who has insight into both the personal and the interpersonal factors that predisposed him to violent behavior, and he has taken steps to address these. He also understands the contextual factors (for example the employment status and neighborhood characteristics) that significantly influenced his past violent behavior. Mr. States also appreciates the importance of treatment for his various conditions (anger, substance abuse, etc.) and has undergone steps to obtain the necessary treatment with what appeared to be very positive results. He no longer experiences problems with violent ideation or intent. He never had problems with a major mental disorder, and there is no evidence of any current problems with affective behavioral or cognitive instability.
[368] Against this background of statistical and instrumental risk assessment, the starting point for my analysis of Mr. States risk of reoffending and his treatability must be my finding that Mr. States does not have a PDNOS, but rather borderline personality traits secondary to a serious substance use disorder, as both Drs. Gojer and Pomichalek concluded.
[369] Regardless of which finding I had found to be persuasive, however, the fact is that all three of the experts opined that Mr. States would be manageable in the community. This important finding and their agreement on that question means that there are better treatment prospects for Mr. States. It means that he does not have a treatment-resistant psychopathy, but rather border personality traits that are occasioned by his historical substance use disorder. While that does not mean treatment will be easy or guaranteed to succeed, it does mean there are better prospects of success and that consequently, the risk of Mr. States re-offending and thereby being a risk to public safety is reduced and capable of being managed.
[370] In fairness to Dr. Pearce, and remembering that he assessed Mr. States two years ago, Dr. Pearce described Mr. States’ programming during the four years of his incarceration as “impressive” – “the most he had ever seen to date in the dangerous offender cases assigned to him.” Dr. Pearce also agreed that research shows that programming received in the community is the most successful.
[371] So all of the doctors have used a variety of professional tools or instruments to assist in assessing Mr. States’ risk factors, but Drs. Pearce and Gojer agreed (Dr. Pomichalek to a marked lesser degree) that the tools used were only moderately successful at predicting risk.
[372] Dr. Pearce also agreed that the HCR 20 “score” he obtained was based on his assumption of an immediate release of Mr. States into the community without intervention or condition. He agreed the risk would be lowered with a structured release. That is important, because the fact that Mr. States could never on this evidence or the nature of the predicate offence be immediately released is not taken into account in Dr. Pearce’s assessment, although he did speak to it in his testimony during the hearing. In 2015, Dr. Pearce had little evidence of clinical change. In contrast, both Dr. Pomichalek and Dr. Gojer completed the HCR 20 v.3 in 2017 with there being considerable evidence of clinical change present, and with LTSO conditions in mind to address the risk factors present.
[373] All doctors testified that the VRAG possessed inherent limitations for assessing risk on a dangerous offender application and was the one test that was a pure actuarial predictor. Given the criteria of the VRAG, little change in scoring was expected by any of them, aside from a change in PCL-R score and a consequential change in diagnosis. Even when these changes were recorded by Dr. Gojer, they resulted in only in a one “bin” change from they third highest risk bin out of nine to the fourth highest.
[374] All experts agreed that the issue boiled down to “disorder” versus “traits” – both of which create treatment challenges, but with the a “traits” diagnosis presenting less of a challenge and being less prominent. Mr. States’ involvement in treatment and his sustained commitment to programming was in the opinion of Dr. Pomichalek evidence that undermined a personality disorder. On its own it was evidence that Mr. States was capable of programming and was apparently responsive to it.
[375] That being said, all of the doctors agreed that Mr. States has had no track record of compliance – regardless of whether it was because his life had been too unstable to support progress, or because he was not really committed to change in the past, or frankly because he had been allowed to disappear from probation with little consequence (aside from being incarcerated when missing in action at the probation office). With a life experience behind him of substance abuse and few skills in self-regulation or management – all agreed that he needed to be embedded in a framework that would hold him accountable and help him succeed. However this opinion was based on prudence given the lapses of the past and less so on the actual risk that Mr. States presented in 2017 after almost 4 years of abstinence.
[376] In the end, based on the confluence of the expert evidence relative to risk and treatability, I find that Mr. States does present a manageable risk and does have positive treatment prospects. These findings inform my view that in addition to a determinate sentence, it is necessary that he also be subjected to a LTSO for a period of years. The question is what should the duration be of that order?
[377] In updating his 2015 assessment of the offender during the hearing, Dr. Pearce acknowledged that Mr. States’ progress forward since 2014 has been very positive. He admitted that the HCR-20 score he gave to Mr. States is possibly higher than it would have been if he had had “richer” information on the family supports that are actually available to Mr. States to assist with his controlled release, and that he did not have enough information on that point. He also agreed that a gradual release of Mr. States would be very positive, and that if Mr. States were subjected to a controlled plan of release that contained the elements he described, elements that are described below, “it would be a good plan.” Nevertheless, he remained of the view that if an LTSO was made, that it should be for the maximum permitted duration of ten years. Indeed, it was plain from his evidence that when confronted by such a candidate, it would always be his preference to see the maximum ten-year order imposed in the interest of the maximum period of control before release.
[378] In contrast, when asked how long Mr. States should be under controlled release, Dr. Pomichalek opined that a period of five or six years would be adequate, assuming gradual reintegration into the community. He would want to see slow integration, but with all controls off at five to six years. He reached this position taking account of the fact that Mr. States has already had four years in custody during which he has demonstrated commitment to move forward in a positive direction, and has evidently been clean of his substance abuse problems during that time, albeit within a controlled environment. Dr. Pomichalek acknowledged that the question will be his ability to continue to control his past substance abuse demons, and to remain clean once he gets out. Mr. States is also getting older and more infirm, but nevertheless he continues to have hope.
[379] In Dr. Pomichalek’s opinion, a five to six year LTSO strikes the appropriate balance point. When asked what his views were about a 10-year LTSO, he explained that overreaching on the term of controlled release can actually contribute to reoffending, and that the research on risk responsivity shows that if an offender is over-managed or controlled for too long, the sense of hope that might otherwise be present in the offender can disappear, with the possibility of bitterness arising which can in turn itself contribute to an increased risk of reoffending.
[380] Dr. Gojer also opined that a full ten-year LTSO is not what is required or appropriate in this case. He regards Mr. States as eminently treatable, with emotional counseling and ongoing substance abuse treatment involving both individual and group counseling. He would recommend interim counseling for a period of two years because he regards Mr. States as being positively oriented and at the so called “instrumental stage” of rehabilitation, where the offender is seriously motivated and committed to change. He also acknowledges that he will need at least a year, if not two, of substance abuse therapy, so in total, he could envisage 2 years of treatment and therapy programs that would be available to him during that time, combined with a further three years of controlled-release with Mr. States perhaps moving into a halfway house five years from now. Dr. Gojer stated his belief that Mr. States has had as much in-custody time as he would be likely to receive, without regard I must add to what I find to be my obligation to impose a determinate sentence for the predicate offences, and thus from his perspective, the answer to the needs that Mr. States presents is to be found in the CCCs offered by CSC.
[381] In summary, he envisages no further incarceration for Mr. States, but an LTSO that contains a residency condition requiring Mr. States to reside at a CCC with mandatory attendance at their programs, plus external counseling of the kind he provides at his clinic. In his view, the order should require Mr. States to attend Narcotics Anonymous, Cocaine Anonymous and Alcoholics Anonymous for two to three years, recognizing as well that the salutary effects of that group therapy may cause the offender to continue voluntarily beyond that, as many AA and NA members do for the balance of their lives. Ultimately he envisages Mr. State moving from a CCC to a Community Residential Facility. He described this as a “cascading model of reform, treatment, counseling and reintegration”, which in his opinion makes the most sense in this case.
[382] Under section 753.1 (1), I am permitted to find an offender to be a long-term offender if I am satisfied that (i) it would be appropriate to impose a sentence of imprisonment of two years or more for the offense for which the offender has been convicted, (ii) there is a substantial risk that the offender will reoffend, and (iii) there is a reasonable possibility of eventual control of the risk in the community.
[383] Mr. States meets each of these three conditions. The predicate offenses require imprisonment of two years or more for the reasons I explain below. The evidence plainly shows that there is a substantial risk that Mr. States will reoffend. But most importantly in this part of the exercise, the evidence of all three expert psychiatric and psychological witnesses establishes to my satisfaction that there is not only a reasonable possibility of eventual control of the risk that Mr. States presents in the community, but that indeed there is a real probability that this goal can be achieved. There will never be certainty. The question is whether there is a real possibility, and that proceeding in this direction will not put public safety at risk. I am more than satisfied on all three of these requirements.
[384] In R. v. Little[^70], the Ontario Court of Appeal observed that to achieve the goal of protection of the public under the dangerous and long-term offender provisions, there must be evidence of treatability that is more than a speculative hope, and that indicates that the offender can be treated within an ascertainable period of time. Both elements are necessary. To determine that the offender’s risk can be reduced to an acceptable level so that he may be designated as a long-term, rather than a dangerous offender, requires proof that the nature and severity of the offender’s identified risk can be sufficiently controlled within the community. Importantly, that decision cautions that I am not permitted as a sentencing judge to assume that the resources necessary to implement recommended supervision conditions, which are neither committed nor available at the time of a dangerous offender hearing, will be available when the time comes for the offender to be released from custody.
[385] Nevertheless, and more importantly, the recent Ontario Court of Appeal decision in R. v. Hess[^71], provides more recent appellate guidance relative to what I am permitted to consider and rely upon in reaching conclusions relative to the imposition of a sentence and LTSO. In that case, an aboriginal person had amassed a lengthy criminal record, which included violent offences, like Mr. States, but in other respects the offender in Hess was arguably more violent than Mr. States. During his time in prison, Hess caused three puncture wounds in a jail guard's neck, and subsequently spent a long period in segregation. After he was released from prison, he stabbed his uncle in the neck. Hess was placed in a psychiatric hospital within a correctional setting, and began receiving treatment for schizophrenia, major depression and post-traumatic stress disorder.
[386] Hess's psychiatrist testified that Hess responded to treatment well and had gained insight into his illness and behaviour. The sentencing judge concluded that the progression of Hess' improvement was evidence of his treatability, and that there was a very high degree of probability that the release plan proposed by his psychiatrist would be successful and protect the public. The sentencing judge imposed a total jail term of two years less a day on the predicate offence of aggravated assault. The judge gave Hess seven years' and ten months' credit for pre-sentence custody, for an effective sentence of nine years and 10 months. Hess was also placed on a five-year LTSO commencing upon his release after serving the two years less a day term of imprisonment. In total, the sentence imposed provided for seven years of incarceration/supervision of the respondent from the date of sentence.
[387] The Crown appealed, and submitted (i) that the sentencing judge's fact-finding process was tainted by several errors of law relating to the reasonable possibility of Hess eventually being controlled within the community, (ii) that the sentencing judge had not based his conclusion on evidence, and (iii) based on the sentencing judge having erred in considering possible use of treatment and reintegration options not directly provided by CSC in assessing the possibility of controlling Hess' risk.
[388] The appeal was dismissed. The sentencing judge's conclusion that there was a reasonable possibility of eventual control of Hess' risk in the community was reasonable and entitled to deference. He had properly instructed himself that any decision that a lesser measure than an indeterminate sentence could control the offender had to be based on evidence introduced during the course of the hearing, but he was entitled to accept the evidence of Hess' psychiatrist and prefer it over the evidence of the forensic psychiatrists, and there was concrete evidence of treatability over the nearly four years Hess had been at the psychiatric hospital.
[389] Importantly on the subject of the release plan, its key components were enforceable through the LTSO and fell within the control of the Parole Board and CSC. But neither was there any error in the sentencing judge considering possible use of treatment and reintegration options not directly provided by CSC in assessing the possibility of controlling Hess' risk. The sentencing judge was entitled to consider the proposed release plan in concluding that there was a reasonable possibility of eventual control of Hess in the community.
[390] Crown counsel had argued there, as it was argued here, that the caselaw requires evidence of the availability in the community of the resources necessary to supervise the respondent but that such evidence was not adduced. The Court rejected this argument noting that the evidence of the psychiatrist in that case, as it does in this case, provides an evidentiary basis to conclude the necessary services were and are available in the community.
[391] The court factually distinguished the decisions in Little[^72] and R. v. Trevor[^73], but those were cases where the evidence did not support a conclusion that the offender was treatable. Further, in Trevor, there was evidence that corrections officials did not have the mandate or capacity to supervise a high-risk offender such as Mr. Trevor, who required a secure residential facility with 24-hour monitoring. This caused Frankel J.A. to write in Trevor[^74] that "[a] judge can hardly be "satisfied" that there is a reasonable possibility of controlling [the risk posed by a particular offender] in the absence of evidence that the means to do so are in fact available."
[392] In this case, however, the evidence of Mr. Tamscu of Ontario Corrections and Ms. Rousell of CSC showed the very broad range of programing available, that extensive supervision is available even if not constant 24 hour supervision, and that both corrections services will contract for services from outside therapy and counseling providers, though it is their preference to rely on internal resources.
[393] The statements in G.L. and Trevor on which the Crown relied were made where (i) the control of the offender's risk in the community relied on twenty-four hour or almost twenty-four hour supervision, and not treatment, (ii) the resources required in the community were in some way "special" and not of a type generally provided by the applicable institution, and (iii) there was evidence that the required resources were unavailable or unrealistic. In this case, while he did not pursue it with the same vigour as Crown counsel in those cases or in Hess, it was advanced as a problem with the proposed plan of release.
[394] However, in this case like in Hess, and unlike in G.L. and Trevor, I have found that there is evidence that Mr. States is treatable, and the control of his risk does not rely solely on community supervision. Equally importantly, the recommended resources for Mr. States within the community are plainly within the mandate of the provincial and federal corrections officials, and the Parole Board of Canada in whatever LTSO it formulates based upon these reasons and recommendations in their entirety, fulfilling, as it must, its exclusive mandate to determine such terms. Further, Ms. Rousell and Mr. Tamscu both testified that a further period of incarceration would not only permit further in-custody treatment of Mr. States, but would also permit the elements of the LTSO to be put in place, as long as he was sentenced to a term of at least six to nine months.
[395] In Hess, in the result, the court concluded that the sentencing judge was entitled to consider the proposed release plan in concluding that there was a reasonable possibility of eventual control of the respondent in the community. In my view, that is the exact same process I have attempted to engage here.
[396] In the result, as elaborated more fully below, I have accepted all of the terms recommended by Dr. Pearce, because they are also consistent with the conclusions of Dr. Gojer and Dr. Pomichalek, but I disagree that a ten year LTSO is required to control Mr. States eventual release into the community. Instead I accept the general views of Dr. Gojer and Dr. Pomichalek on the required length of order. Dr. Gojer says five years is required. Dr. Pomichalek opined that five to six years will be adequate while not defeating Mr. State’s hopes and continuing efforts to reform by being unduly long.
[397] In the result, I generally accept Dr. Pomichalek’s recommendation of a six year LTSO because of the extra prudence an extra year will provide to the likelihood that this offender can be released at that time with reasonable confidence that the risks to public safety will be adequately addressed by an order of that duration. However, I have increased that term to six and a half years, a modicum of increase from Dr. Pomichalek’s recommendation to provide some greater period of state controlled release without increased incarceration, and while still providing Mr. States with a light at the end of the tunnel and a reasonable end date. I have correspondingly reduced the determinate sentence described below. I have done so on the basis of Dr. Gojer’s views that Mr. States should not serve too long a further period of incarceration, but should instead be brought earlier under the LTSO umbrella.
Sentence on the index offences
[398] On the issue of the appropriate determinate sentence, the Crown noted that Mr. States is facing not only charges relating to aggravated assault but also charges relating to weapons dangerous, assault with a weapon and failing to comply with probation. The Crown concedes that the assault with a weapon charge should be stayed under the principles of R. v. Kienapple.[^75]
[399] In relation to the appropriate sentence the Crown argues that Mr. States would come within the higher range of sentences outlined by Code J. in R. v. Tourville.[^76] Although there was clearly a lack of deliberation involved in this case, which is mitigating to some extent, Mr. States is nevertheless someone who comes before the Court with a very long and very extensive criminal record for aggressive and sometimes violent offences. It is therefore appropriate, in the Crown’s submission, to consider that a sentence of approximately 6 or possibly more years would be appropriate in totality in consideration of the fact that Mr. States also used a weapon and was, as a result, also breaching his probation.
[400] On the subject of pre-sentence custody credit, the Crown notes that although Mr. States has participated in some programming while in custody, his record would suggest that he would not be eligible for parole in the normal course. Also, the Crown takes the position that the fact he has committed institutional misconducts during this time would offset many of the positive steps also taken by Mr. States while in custody since September 2014. Consequently the Crown requests that Mr. States’ credit for time in custody be limited to something much less than 1.5:1 credit. The Crown acknowledges that there should be some credit afforded to this offender, but in the Crown’s view, whatever credit is given for pre-sentence custody should be closer to 1:1 than 1.5:1. According to my calculations, since he was arrested on these charges on June 18, 2013, to today’s date, Mr. States has served 1471 days of pre-sentence custody.
[401] Defence counsel took no actual position on the appropriate length of determinate sentence that is appropriate in this case, other than noting, in accordance with the evidence of Mr. Tamscu and Ms. Rousell, that if Mr. States is to be subjected to an LTSO, which he will be, then he will require a period of incarceration of at least six months and possibly closer to a year to permit all the pieces to be put in place for the implementation of that order, and to permit Mr. States to complete further in custody treatment and programming before commencing the LTS