CITATION: R. v. Brown, 2017 ONSC 561

COURT FILE NO.: CR13100005090000

DATE: 2017-01-25

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Applicant

– and –

JORDAN BROWN Respondent

Cara Sweeny, for the Crown

Gregory Lafontaine, for the Respondent

HEARD: May 24, 25, 26, June 17 and September 20, 2016

HAINEY J.

REASONS FOR DECISION ON DANGEROUS OFFENDER APPLICATION

INTRODUCTION

[1] The Crown applies, pursuant to s. 753(1) (a) and s. 753(1) (b) of the Criminal Code of Canada, to have Jordan Brown declared a dangerous offender and sentenced to an indeterminate period of detention.

The Predicate and Related Offences

[2] On September 9, 2014, I found Mr. Brown guilty of the following offences committed on May 3, 2012:

(1) Aggravated assault by maiming; (2) Aggravated assault by wounding; (3) Carry a concealed weapon; (4) Unlawfully pointing a firearm; (5) Assault with a weapon; (6) Robbery with a weapon; (7) Discharging a firearm with intent to endanger life; (8) Using a firearm while committing an assault; (9) Possession of a weapon to commit an indictable offence; (10) Careless use of a firearm; (11) Possession of a firearm knowing he was not the holder of a licence; (12) Possession of a firearm while prohibited from doing so; (13) Theft under $500.

[3] I also found Mr. Brown guilty of the following offences committed on May 7, 2012:

(1) Possession of a firearm without a licence; (2) Possession of a firearm knowing he was not the holder of a licence; (3) Possession of a firearm in a vehicle; (4) Possession of a firearm while prohibited from doing so; (5) Possession of cocaine.

[4] This application is based upon the following four offences which the Crown submits constitute serious personal injury offences within the meaning of s. 752 of the Criminal Code (“predicate offences”):

(1) Aggravated assault by maiming; (2) Aggravated assault by wounding; (3) Assault with a weapon; and (4) Robbery with a weapon.

[5] A serious personal injury offence includes an indictable offence for which the offender may be sentenced to imprisonment for 10 years or more that involves violence against another person or conduct endangering the life or safety of another person or inflicting severe psychological damage upon another person. There is no dispute that the predicate offences meet this definition.

[6] The predicate offences arose from a robbery at the Humberview Motorsports car dealership in the City of Toronto on May 3, 2012. Mr. Brown, Jacob Jeffrey and Clarence Morrison participated in the robbery. Mr. Jeffrey and Mr. Morrison have been sentenced.

[7] During the robbery, Mr. Brown shot and wounded Pat Cubellis, the sales manager of the dealership. Mr. Jeffrey assaulted Sam Mazzulla, who was the only customer at the dealership. After the shooting, the three men fled, taking with them property belonging to Mr. Cubellis and Mr. Mazzulla.

[8] Four days later, on May 7, 2012, Mr. Brown and Mr. Jeffrey were arrested near Collingwood, Ontario. Mr. Brown was found to be in possession of a rifle, ammunition and a quantity of cocaine.

Positions of the Parties

[9] The Crown submits that Mr. Brown meets the dangerous offender criteria and should be sentenced to an indeterminate period of detention. According to the Crown, there is no reasonable expectation that a lesser measure, such as a fixed sentence or a fixed sentence followed by a long-term supervision order (LTSO), could adequately protect the public against the risk that Mr. Brown will likely commit another serious personal injury offence.

[10] Mr. Lafontaine, on behalf of Mr. Brown, submits that Mr. Brown does not meet the criteria for a dangerous offender or even a long-term offender. He submits that Mr. Brown should receive a global sentence of 10 years’ imprisonment less credit for his pre-sentence custody.

THE LAW

[11] The relevant sections of the Criminal Code for the purpose of the Crown’s application in this case are the following:

753. (1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied

(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing

(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour,

(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or

(4) If the court finds an offender to be a dangerous offender, it shall

(a) impose a sentence of detention in a penitentiary for an indeterminate period;

(b) impose a sentence for the offence for which the offender has been convicted - which must be a minimum punishment of imprisonment for a term of two years - and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or

(c) impose a sentence for the offence for which the offender has been convicted.

(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph 4 (b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

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

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

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

753.1 (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that

a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;

b) there is a substantial risk that the offender will re-offend; and

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

[12] The onus is on the Crown to prove beyond a reasonable doubt that Mr. Brown meets the dangerous offender criteria under s. 753 of the Code. (R. v. Currie, 1997 CanLII 347 (SCC), [1997] 2 S.C.R. 260 at para. 42.)

[13] The primary purpose of the dangerous offender sentencing regime is the protection of the public. On a dangerous offender application the court must balance the liberty interests of an offender with the risk to public safety that will arise upon the offender’s release into the community. According to the Ontario Court of Appeal in R. v. G. L., 2007 ONCA 548, [2007] O.J. No. 2935 at para. 70:

That balancing exercise is informed by this fundamental principle: in a contest between an individual offender’s interest in invoking the long-term offender provisions of the Code and the protection of the public, the latter must prevail.

[14] There are three different criteria upon which an offender can be found to be a dangerous offender under s. 753 of the Code. In Mr. Brown’s case, the Crown is relying on the two following criteria:

(1) A pattern of repetitive behaviour by Mr. Brown showing a failure to restrain his behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his behaviour; and

(2) A pattern of persistent aggressive behaviour by Mr. Brown showing a substantial degree of indifference on his part respecting the reasonably foreseeable consequences to other persons of his behaviour.

THE EVIDENCE

[15] The Crown relies upon the following in support of its application:

(1) The predicate offences committed by Mr. Brown on May 3, 2012;

(2) Mr. Brown’s criminal record and the nature of the offences for which he has been convicted in the past;

(3) Records from the Ontario Ministry of Community Safety and Correctional Services and Correctional Service Canada (“CSC”) relating to Mr. Brown’s time in custody in provincial and federal institutions;

(4) A psychiatric assessment of Mr. Brown performed by Dr. Mark Pearce pursuant to s. 752.1 of the Criminal Code dated March 6, 2015 and Dr. Pearce’s expert testimony on Mr. Brown’s dangerous offender application; and

(5) The testimony of Meaghan Jones from the Correctional Service of Canada (“CSC”) with respect to the role it can play in the supervision and risk management of Mr. Brown following his release from custody.

[16] The defence filed eight letters of support for Mr. Brown and Mr. Brown provided me with a six page letter expressing his remorse that he read in court. Mr. Lafontaine did not present any psychiatric evidence in response to Dr. Pearce’s expert report and testimony.

The Circumstances of Mr. Brown

[17] Mr. Brown is 33 years old. He was born in Oakville, Ontario, where he was raised by his biological parents. He was involved romantically with a partner with whom he had a child who is now five years old.

[18] Mr. Brown struggled in school. He stopped attending high school at the age of 18. He eventually obtained his Ontario Secondary School Diploma in 2004, while he was incarcerated.

[19] Mr. Brown has been continuously involved in the drug trade since the age of 15. He initially sold marijuana and ecstasy and then began selling cocaine. He has worked on and off in a variety of capacities as a dishwasher, landscaper, labourer, delivery driver and as a mason. He does not have a steady full-time work history, primarily because he has been incarcerated for much of his adult life as a result of his extensive drug dealing activities and violent behaviour.

[20] Attached as Appendix 1 is Mr. Brown’s criminal record. Appendix 2 is a chart that summarizes Mr. Brown’s criminal record and illustrates the time periods during which he was in custody between 2002 and 2012.

[21] Mr. Brown’s extensive criminal record demonstrates that his involvement with drugs, both as a user and a dealer, has resulted in most of his criminal behaviour. I agree with Crown counsel’s characterization of Mr. Brown’s involvement with drugs as his “Achilles heel”.

Mr. Brown’s Criminal Record

[22] In September 2002, Mr. Brown was convicted of public mischief. The incident involved cocaine and a handgun. Mr. Brown told Dr. Pearce that he had the handgun in his possession because “I was in that lifestyle, I just had a gun. I had it just to have it. I was in the drug scene”.

[23] In June 2003, Mr. Brown was convicted of two separate violent home invasions. The first was in December 2002, less than three months after his first conviction for public mischief. Mr. Brown and two others entered a residence masked with bandanas. They demanded drugs and ripped a telephone from the wall. The victims were forced into a bedroom and a bathroom during the robbery. Mr. Brown struck two victims in the head with the butt of his gun. They required stitches to close their wounds.

[24] One month later, in January 2003, Mr. Brown and two others forcibly entered an apartment wearing bandanas as masks. There were six people inside the apartment. Three escaped and called police and the remaining three victims were forced into a bathroom. One of the victims was repeatedly stabbed and struck in the head with the butt of a sawed-off shotgun. Another victim was kicked after being ordered to lie on the floor. Mr. Brown and his two accomplices stole drugs from the victims. One victim required stitches to close his wounds. Mr. Brown told a forensic psychiatrist who prepared a report for the court in respect of this offence that he was robbing “his competition” and that “things got out of hand”. Mr. Brown admitted that he was carrying a gun during both home invasions. Mr. Brown pleaded guilty to charges related to both home invasions and was sentenced to three years in the penitentiary, in addition to his pre-trial custody of 167 days.

[25] Not long after Mr. Brown completed serving his sentence for these offences, the police found six rifles and over $12,000 worth of ecstasy in his residence. He was arrested on the highway after a high speed chase. He pleaded guilty to a number of charges related to this event and received a total sentence of approximately four years’ imprisonment.

[26] Mr. Brown was again convicted in April 2007 for being unlawfully in a dwelling house. He broke a screen on a kitchen window and entered a home claiming he was running away from someone with a gun. A mother and two young girls were in the house at the time. Mr. Brown hid in a washroom until the police found him. He received a consecutive sentence of six months’ imprisonment for this offence.

[27] In May 2010, while on parole, Mr. Brown was arrested for possession of a large quantity of marijuana for the purpose of trafficking. He served a total of seven months’ imprisonment for this offence. He told Dr. Pearce that he received a lenient sentence because he provided police with information that led to the recovery of a firearm.

[28] The final entry on Mr. Brown’s criminal record includes six counts of failing to comply with a recognizance and possession of a scheduled substance for the purpose of trafficking. At the time of these offences Mr. Brown was on bail for charges of kidnapping and forcible confinement involving a firearm. Mr. Brown communicated with the victim of these charges in an effort to extort information. These charges were eventually stayed after the victim died in a car crash.

[29] On May 3, 2012, while Mr. Brown was still facing the charges of kidnapping and forcible confinement, he and Mr. Jeffrey and Mr. Morrison planned and executed the robbery at the Humberview Motorsports car dealership that resulted in the predicate offences. Before the robbery, the three men waited across the street, stalking the dealership before it opened. Mr. Brown was carrying a concealed loaded firearm. After Mr. Cubellis and Mr. Mazzulla entered the dealership, the three men went inside where Mr. Brown threatened and beat Mr. Cubellis, demanding drugs and money from him. When he found no drugs, Mr. Brown stole Mr. Cubellis’ watch and gold chain and threatened to kill him if he went to the police. While Mr. Cubellis was on the floor in the garage of the dealership, Mr. Brown shot him in the leg. Mr. Brown and the other two men then fled the dealership.

[30] Four days later, on May 7, 2012, when Mr. Brown was arrested near Collingwood, Ontario, he was in possession of a different firearm, ammunition and several ounces of cocaine.

Dr. Pearce’s Opinion

[31] Dr. Pearce interviewed Mr. Brown on January 7, 2015, for approximately four hours. He also reviewed the following:

• My Reasons for Judgment in which I found Mr. Brown guilty of the predicate offences;
• Mr. Brown’s criminal record;
• information from various police agencies and courts including details pertaining to Mr. Brown’s prior criminal offences;
• Mr. Brown’s medical records;
• Mr. Brown’s federal and provincial correctional records; and
• Information from Mr. Brown’s sister.

[32] The highlights of Dr. Pearce’s opinion regarding Mr. Brown are as follows:

• Mr. Brown does not suffer from a major mental illness such as schizophrenia or bipolar affective disorder;
• Mr. Brown has, for many years, abused alcohol, cocaine and marijuana. It would appear that his use of cocaine was most problematic. Given the extent of his use, I suspect that he was dependent upon one or more of the aforenoted substances. … The best diagnosis for Mr. Brown overall is polysubstance dependence;
• Mr. Brown consistently failed to abide by conditions of his release in judicial orders and he has repeatedly been re-incarcerated as a result. Antisocial behaviours have continued even when in custody. His desire for money and/or prestige have led to recurrent and serious assaults against strangers and he has also fought with fellow inmates. Overall, it is clear Mr. Brown suffers from antisocial personality disorder;
• The essential feature of antisocial personality disorder is a pervasive pattern of disregard for, in violation of, the rights of others (in Mr. Brown’s case) occurring since the age of 15, as indicated by three or more of:
  • Failure to conform to social norms with respect to lawful behaviours;
  • Deceitfulness as indicated by repeated lying, use of aliases, or conning others for personal profit or pleasure;
  • Impulsivity or failure to plan ahead;
  • Irritability and aggressiveness;
  • Reckless disregard for the safety of self or others;
  • Consistent irresponsibility as indicated by a repeated failure to sustain consistent work behaviour or honour financial obligations; and
  • Lack of remorse.
• Individuals with ASPD are described as frequently deceitful and manipulative in order to gain personal profit or pleasure. At present, we have very little treatment for individuals with ASPD. There is little empirical evidence suggesting that these individuals are capable of personality change, even with assiduous treatment.

[33] Dr. Pearce conducted an extensive risk assessment of Mr. Brown using the following well-known actuarial methods of risk assessment:

• PCL-R;
• Violence Risk Appraisal Guide (VRAG)
• HCR-20

[34] Mr. Brown scored slightly below the score required for a “diagnosis of psychopathy” on the PCL-R test. He had a high score on the VRAG test. According to Dr. Pearce, this score suggests a “high risk of violent re-offence.” On the HCR-20 test, Mr. Brown had a high score which is also “suggestive of a high risk of future violent behaviour, absent significant interventions”.

[35] In Dr. Pearce’s clinical judgment, considering the imminence, frequency and severity of a re-offence by Mr. Brown, he concluded as follows:

In examining Mr. Brown’s pattern and timing of violent offending, I note that he has only committed violent offences to support himself and as a result of his involvement in the drug trade. He has taken steps towards violent re-offence while statutorily released and even when federally incarcerated (that is, he has recently been institutionally found guilty of possessing a significant quantity of cannabis). Given these considerations, it would appear that imminence and frequency are ‘live’ variables. This gentleman has also committed very serious violent offences involving weapons and thus there remains a high risk for same in the future, should he continue to be involved in the drug industry.

Overall, taking into account the aforenoted actuarial and clinical risk assessment in addition to this gentleman’s PCL-R score, it can be concluded that Mr. Brown is in the high risk category for violent recidivism.

[36] Dr. Pearce also concluded as follows:

Overall and given the results of the PCL-R, VRAG and HCR-20, it is my opinion that Mr. Brown is likely to re-offend violently absent significant interventions. In my view, he has demonstrated a repetitive pattern of behaviour with respect to his assaults on others. He has committed serious violent offences towards several victims by virtue of his involvement in the drug trade and he has repeatedly returned to this ‘career’. Such behaviour could quite easily cause serious physical injury and/or severe psychological damage to his victims. …

… He has nonetheless and without fail, continued to use substances, interact with criminally-inclined peers and immersed himself in the drug culture. Thus there is, in my opinion, ‘significant psychiatric support for the notion that Mr. Brown has manifested indifference to the reasonably foreseeable consequences of his behaviour’.

[37] Dr. Pearce also provided his opinion about whether Mr. Brown ‘with the passage of time and/or treatment, presents with a reasonable expectation of eventual control of the risk in the community’. He concluded as follows:

The above-noted risk assessment suggests that Mr. Brown presents with a substantial risk of violent recidivism; he is, in my opinion, at high risk of committing another violent offence. From a psychiatric perspective whether he would be suitable for a Long-Term Supervision Order (LTSO) hinges on whether he can be considered treatable and whether such treatment could be effective to the point that his risk could be managed within the community both while under supervision (and subjected to an LTSO) and after the expiry of such an Order. …

Overall, in considering the aforenoted factors it is unclear if there are any reasons for optimism regarding the likelihood of treating this gentleman’s criminogenic diagnoses…

In this particular case and as aforenoted, Mr. Brown has repeatedly participated in treatment programming. His performance during same was at times adequate, though he likely did not truly internalize the material being taught. While he has expressed a willingness to accept more treatment to try to live a ‘simple life’, it would not appear that the chances of success are high. …

Mr. Brown’s supervision record is very poor; he has repeatedly violated terms imposed upon him. He has consumed alcohol and illicit drugs, not been fully compliant with the requirements of electronic monitoring, and he has travelled outside of jurisdiction without permission. He historically failed to attend for appointments with his probation officer. While he has not, to his credit, re-offended violently while on parole, he has taken steps towards same. Thus Mr. Brown’s response to prior supervision is a negative prognostic indicator. …

In terms of Mr. Brown’s supports, he has the continued support of a girlfriend and family members. While these individuals are described as prosocial, I note that Mr. Brown has offended while residing alongside family members. Overall, however, this is a positive prognostic indicator.

In summary and considering the aforenoted factors, it is not clear if this gentleman will be fully manageable while incarcerated and subject to a LTSO, or following the expiry of such an Order. Given that successful risk management entails ensuring that he remains abstinent from substances of abuse and away from criminally-oriented peers, I suspect that assertive and intensive supervision would likely prevent a return to violence by interrupting Mr. Brown’s offence pattern prior to physically assaultive behaviour occurring. During this time and given that he has some strengths and is not psychopathic, he may be able to make significant gains, in terms of programming and learning to live a crime-free life. Alternatively, he may continue to fail to progress as has largely been the case for the past decade. More importantly, whether gains would continue following the expiry of a 10-year LTSO is not clear; the answer could depend upon the length of the fixed sentence he may be handed. At this juncture and while there is a possibility of eventual control of the risk in the community, I am not able to conclude that there is a reasonable expectation of same from a psychiatric perspective.

[38] When Dr. Pearce testified he gave the opinion that Mr. Brown is at risk of violently re-offending for the next two decades. Under cross-examination, he conceded that his estimated period of time “could be” lower. Dr. Pearce also agreed that Mr. Brown could possibly be managed adequately under a LTSO but testified that his concern is whether Mr. Brown would re-offend violently after the LTSO ends.

Analysis

Has the Crown Proven that Mr. Brown Meets the Criteria under s. 753 (1)(a)(i) of the Code?

[39] The first requirement has been met. There is no dispute that the predicate offences are “serious personal injury offences” within the meaning of s. 752.

[40] The second criteria requires the Crown to prove beyond a reasonable doubt that Mr. Brown constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence that establishes a pattern of repetitive behaviour, of which the offences for which he has been convicted forms a part, showing a failure to restrain his behaviour and a likelihood of causing death or injury or inflicting severe psychological damage on other persons through failure to restrain his behaviour in the future.

Pattern of Repetitive Behaviour

[41] To establish a pattern of repetitive behaviour as described in ss. 753(1)(a)(i) of the Code the Crown must prove that there are significant similarities among the acts of violence committed by Mr. Brown. The Crown is not required to prove that the acts are identical. However, the inquiry must examine the nature and context of the acts committed. A lengthy history is not required.

[42] A pattern of repetitive behaviour can be established on the basis of a single prior incident provided that it and the predicate offence display elements of similarity. As the number of prior incidents increases the degree of similarity required decreases. The pattern of behaviour must contain enough of the same elements of unrestrained dangerous conduct to be able to predict that Mr. Brown will likely offend in the same way in the future. Similarity can be found not only in the types of offences committed but in the degree of aggression used or violence inflicted. (R. v. Jones (1994), 1994 CanLII 85 (SCC), 114 D.L.R. (4th) 645 (SCC), R. v. Langevin, 1984 CanLII 1914 (ON CA), [1984] O.J. No. 3159 (C.A.), R. v. Szostak, 2014 ONCA 15.)

[43] Since 2001, Mr. Brown has consistently been in possession of illegal firearms and drugs. Although his first criminal conviction was for public mischief, the circumstances of this offence involved cocaine and a handgun that Mr. Brown acknowledged was related to his drug dealing.

[44] Mr. Brown’s second convictions arose from two separate violent home invasions involving firearms and drugs. On the first occasion, Mr. Brown and two others entered a residence while masked and demanded drugs. Mr. Brown struck two victims in the head with the butt of his gun.

[45] One month later, Mr. Brown and two others forcibly entered an apartment occupied by a number of people inside. One of the victims was repeatedly stabbed and struck in the head with the butt of a sawed-off shotgun. Another victim was kicked while he was on the ground. Mr. Brown and his two accomplices stole drugs from the occupants of the apartment. According to Mr. Brown, he was robbing his “competition” and “things got out of hand”. He acknowledged that he was carrying a gun on both occasions.

[46] There are significant similarities in Mr. Brown’s behaviour in these two home invasions and his behaviour in the predicate offences. On all three occasions Mr. Brown was armed with a weapon and invaded premises with accomplices for the purpose of committing a violent robbery. In all cases victims were injured as a result of his conduct. These three robberies demonstrate a very similar pattern of violent behaviour on Mr. Brown’s part.

[47] Shortly after serving his penitentiary sentence for these offences, the police located six rifles (long guns and semi-automatics) and over $12,000 worth of ecstasy in Mr. Brown’s residence. He was arrested after a high speed police chase. Mr. Brown acknowledged that he was, again, involved in the drug trade.

[48] In August 2006, Mr. Brown broke a screen in a kitchen window and entered a home claiming he was running away from someone with a gun. There was a mother with two young daughters in the home at the time. Mr. Brown hid in a washroom until the police found him. He admitted that he was high on cocaine at the time.

[49] While still on parole as a result of his conviction for the above noted offence, Mr. Brown was arrested by police, who found a large quantity of marijuana in his vehicle. He admitted, again, being involved in the drug trade.

[50] The last entries on Mr. Brown’s criminal record include six convictions for failing to comply with his recognizance. At the time he was on bail for serious allegations of kidnapping and forcible confinement involving a firearm. Mr. Brown breached his recognizance by repeated contact with the alleged victim of these charges in an effort to extort information.

[51] While still on bail for these charges, Mr. Brown committed the predicate offences on May 3, 2012, when he robbed and shot Mr. Cubellis.

[52] Mr. Brown’s entire adult life has been spent in and out of custodial settings as a result of his violent behaviour and his involvement in the drug trade. He has caused serious injury and psychological harm to many victims, including the gunshot wound to Mr. Cubellis.

[53] I am satisfied on this evidence that the Crown has established beyond a reasonable doubt that Mr. Brown’s criminal history shows a pattern of repetitive behaviour for well over a decade demonstrating a failure on his part to restrain his behaviour. There are significant similarities between his criminal conduct in the past and the predicate offences. On three separate occasions he has invaded premises while armed to carry out a violent robbery. Victims were injured on each occasion.

Likelihood of Future Harm

[54] The third requirement under s. 753(1)(a)(i) of the Code requires the Crown to prove beyond a reasonable doubt that it is likely that Mr. Brown will cause death or serious physical or psychological damage to a person as a result of his failure in the future to restrain his behaviour. The Crown need not prove beyond a reasonable doubt that Mr. Brown will re-offend violently, but the Crown must prove beyond a reasonable doubt that it is likely that he will do so.

[55] According to Code J. in R. v. Gibson, 2013 ONSC 589, at para. 18:

Predicting future conduct is notoriously difficult and the exact meaning of the s. 753 ‘likelihood’ test is subtle. The ordinary dictionary meaning of the word ‘likelihood’, as well as its normal legal usage, is ‘probability’, that is, something more than mere ‘possibility’. When applying this meaning to the ‘likelihood’ test found in s. 753, the courts have stressed that it refers to probable ‘risk’ or ‘potential for harm’, as a present fact, rather than to proof of a future event which would be an impossibility.

[56] An assessment of the “likelihood of future harm” criteria under s. 753(1)(a)(i) often depends upon the expert opinion of a forensic psychiatrist. According to Dr. Pearce, it is best assessed with the assistance of actuarial risk assessment tools. Dr. Pearce used a number of well-regarded actuarial methods of risk assessment to assess the likelihood of Mr. Brown causing future harm. He concluded that Mr. Brown is likely to re-offend violently with a weapon absent significant interventions.

[57] I accept Dr. Pearce’s expert opinion. It is uncontradicted by any other evidence. I am satisfied on the strength of Dr. Pearce’s risk assessment of Mr. Brown and Mr. Brown’s past criminal conduct that the Crown has established beyond a reasonable doubt that it is likely that Mr. Brown will cause serious physical or psychological damage to other persons in the future as a result of his failure to restrain his behaviour. In this regard I rely upon the Supreme Court of Canada’s reasoning in R. v. Currie, supra, at para. 22 as follows:

As long as the offender’s past conduct, whatever that conduct may be, demonstrates a present likelihood of inflicting future harm on others, the [dangerous offender] designation is justified.

[58] Accordingly, I am satisfied that the Crown has established beyond a reasonable doubt that Mr. Brown meets all of the required criteria under s. 753(1)(a)(i) of the Code and should be declared a dangerous offender under this section.

Has the Crown Proven that Mr. Brown Meets the Criteria Under s. 753(1)(a)(ii) of the Code?

Pattern of Persistent Aggressive Behaviour

[59] To establish that Mr. Brown is a dangerous offender pursuant to s. 753(1)(a)(ii) of the Code, the Crown must prove that he constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence that establishes a pattern of persistent aggressive behaviour, of which the offence for which he has been convicted forms a part, showing a substantial degree of indifference on his part respecting the reasonably foreseeable consequences to other persons of his behaviour.

[60] For the same reasons that I have found that Mr. Brown has demonstrated a pattern of repetitive violent behaviour, I am satisfied beyond a reasonable doubt that the Crown has also proven a pattern of persistent aggressive behaviour on the part of Mr. Brown of which the predicate offences form a part.

[61] The two home invasion robberies and the predicate offences involve persistent aggressive behaviour on the part of Mr. Brown. In both cases Mr. Brown was armed with a weapon when he committed violent robberies. His conduct was clearly aggressive and resulted in injuries to victims in each case.

Substantial degree of indifference respecting the foreseeable consequences of his behaviour

[62] The circumstances of the two home invasion robberies committed by Mr. Brown and the predicate offences show a substantial degree of indifference on Mr. Brown’s part respecting the foreseeable consequences of his behaviour. In each case victims were injured as a result of his aggressive behaviour. This outcome was reasonably foreseeable under the circumstances. Mr. Brown had to be aware of this, particularly because in each case he was armed with a weapon and behaved in a very aggressive manner.

[63] Dr. Pearce provided his expert opinion with respect to this issue. He concluded as follows:

With respect to ‘indifference to the reasonably foreseeable consequences of his/her behaviour’ it would appear from records reviewed that Mr. Brown has been made fully aware of the possible consequences of a return to the drug business. He has participated in formal treatment related to same and he has consistently been able to articulate details of his offence cycle. He has, nonetheless and without fail, continued to use substances, interact with criminally-inclined peers and immersed himself in the drug culture. Thus there is in my opinion, significant psychiatric support for the notion that Mr. Brown has manifested indifference to the reasonably foreseeable consequences of his behaviour.

[64] I am satisfied that the Crown has established beyond a reasonable doubt that Mr. Brown is a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence that establishes a pattern of persistent aggressive behaviour showing a substantial degree of indifference on his part respecting the reasonably foreseeable consequences to other persons of his behaviour. The Crown has, therefore, established that Mr. Brown meets all of the criteria under s. 753(1)(a)(ii) of the Code and should be declared a dangerous offender pursuant to this section.

[65] I, therefore, declare Mr. Brown to be a dangerous offender.

Is there a reasonable expectation that a sentence other than an indeterminate sentence will adequately protect the public against the commission, by Mr. Brown, of murder or a serious personal injury offence?

[66] Having found Mr. Brown to be a dangerous offender under ss. 753(1)(a)(i) and 753 (1)(a)(ii), an indeterminate sentence is presumed to be a fit sentence unless the court is satisfied that there is a “reasonable expectation” that a lesser sentence is sufficient to adequately protect the public against Mr. Brown committing a further serious personal injury offence.

[67] A “reasonable expectation” in the context of s. 753 was described by Hill J. in R. v. D.B., 2015 ONSC 5900, [2015] O.J. No. 5138 at para. 194 as requiring “an evidence-based evaluation, based upon objectively valid and relevant criteria, with probabilistic assessment exceeding chance, speculation, hope or mere possibility that something will happen”.

[68] The determination of whether Mr. Brown’s risk can be reduced to an acceptable level requires consideration of all factors, including whether he can be treated, so as to bring about sufficient risk reduction to ensure protection of the public: R. v. Tremblay, [2010] O.J. No. 3450 at para. 194.

[69] According to the Ontario Court of Appeal in R. v. McCallum, 2005 CanLII 8674 (ON CA), [2005] O.J. No. 1178 at para. 48, “there must be evidence of treatability that is more than an expression of hope and that indicates that the specific offender can be treated within a definite period of time”.

[70] Dr. Pearce listed the following factors he considers important in determining whether Mr. Brown can be considered treatable and whether such treatment could be effective in lowering the risk to the public both during the period in which he would be subject to a LTSO and after its expiry:

(1) Diagnosis and prognosis; (2) Previous response to treatment and current motivation for treatment; (3) Response to previous supervision; and (4) Employment prospects and supports within the community.

[71] Dr. Pearce came to the following conclusions about Mr. Brown with respect to each of these factors:

Diagnosis and Prognosis

[72] Mr. Brown’s diagnoses are his ASPD and his serious substance abuse disorder. With respect to Mr. Brown’s substance abuse disorder, Dr. Pearce opined that these types of disorders are “treatment resistant and have a high relapse rate”. With respect to Mr. Brown’s ASPD, Dr. Pearce indicated that the prognosis is “typically guarded as treatment for personality disorders is challenging; maladaptive traits are long-standing and thus resist change”. Dr. Pearce concluded that “it is unclear if there are any reasons for optimism regarding the likelihood of treating [Mr. Brown’s] criminogenic diagnoses.”

Previous response to treatment and current motivation for treatment

[73] According to Dr. Pearce, “Mr. Brown has repeatedly participated in treatment programming. His performance during same was at times adequate, though he likely did not truly internalize the material being taught. While he has expressed a willingness to accept more treatment and to try to live a ‘simple life’, it would not appear the chances of success are high.”

Response to previous supervision

[74] According to Dr. Pearce, “Mr. Brown’s supervision record is very poor; he has repeatedly violated terms imposed upon him. … Thus Mr. Brown’s response to prior supervision is a negative prognostic indicator.”

Employment prospects and supports within the community

[75] According to Dr. Pearce, “Mr. Brown’s occupational history is limited. He has presented as amotivated on occasion and has reportedly described himself as lazy. He has had some success academically however, and at times he has received favourable work reports. During the interview, he spoke about furthering his education and this would be to his benefit. Thus there may be some reasons for optimism in this domain.”

[76] Dr. Pearce offered the following positive observation, “In terms of Mr. Brown’s supports, he has the continued support of a girlfriend and family members. While these individuals are described as prosocial, I note that Mr. Brown has offended while residing alongside family members. Overall, however, this is a positive prognostic indicator.”

[77] However, Dr. Pearce concluded his opinion on this issue as follows:

At this juncture and while there is a possibility of eventual control of the risk in the community, I am not able to conclude that there is a ‘reasonable expectation’ of same, from a psychiatric perspective.

Burn Out

[78] Dr. Pearce testified that although there is some scientific literature suggesting that offenders may burn out at around 50 years of age, he could not give an opinion as to whether this would occur in Mr. Brown’s case. Dunnet J. considered this theory in R. v. Nicholas, 2010 ONSC 2929, [2010] O.J. No. 2364 at para. 170 as follows:

While it is reasonable to assume that age-related decline will have some impact on the risk, the magnitude of the impact is speculative with Mr. Nicholas.

[79] The same can be said about Mr. Brown. On the evidence before me it would be speculative to conclude that Mr. Brown will no longer be a risk to the safety of the public within a definite period of time. The applicable law is clear. I am not to gamble with the safety of the public by predicting, in the absence of compelling evidence, when Mr. Brown will no longer pose a risk of violence.

Correctional Service Canada

[80] Meaghan Jones, who is a parole officer supervisor with CSC, testified about CSC’s role in supervising offenders who are subject to LTSO orders. CSC parole officers provide supervision to offenders who are released into the community on LTSO orders. Having carefully considered her evidence, it is unclear to me whether the level of supervision that can be provided by CSC would be sufficient to ensure the safety of the public should Mr. Brown be released into the community on a LTSO.

[81] One of the potential problems about the supervision of an offender on a LTSO is the consequence that arises if the offender breaches the order. For example, if Mr. Brown failed to comply with the conditions of a LTSO, his release into the community could only be suspended for 90 days unless he was successfully prosecuted under s. 753.3 of the Criminal Code. After 90 days, he would be released back into the community regardless of the risk. Even if he was prosecuted and convicted under s. 753.3 of the Code, he would be released back into the community following the completion of his sentence for this offence regardless of his risk to public safety.

[82] However, if Mr. Brown is sentenced to an indeterminate period of detention, the Parole Board could grant him parole if he received effective treatment while in detention and the Parole Board considered his risk to be manageable. The Parole Board would retain the power to return Mr. Brown to detention and revoke his parole if he did not comply with the conditions of his release or if his risk became unmanageable. In my view, this provides a far greater measure of protection for the safety of the public.

[83] In my view, the Parole Board is in the best position to determine whether, at a future date, Mr. Brown’s risk can be managed in the community. The evidence before me does not support a finding that he can be reasonably managed in the community within a definite period of time.

Letters of Support

[84] I have carefully considered the letters of support provided to me from members of Mr. Brown’s family and others who know him well. They all describe a young man who is respectful, helpful and well-regarded. Mr. Brown’s letter to me also demonstrates that he is remorseful for what has occurred in his life and very much wants to be able to be a good father to his young son. Unfortunately, none of these letters gives me sufficient comfort that the risk Mr. Brown poses to the safety of the community can be reasonably managed.

CONCLUSION

[85] For all of these reasons I do not have a reasonable expectation that the public can be adequately protected from Mr. Brown by any measure less than an indeterminate sentence. On the evidence before me it would be far too speculative and unreasonably hopeful to conclude that Mr. Brown will submit to appropriate treatment and supervision so that he will no longer pose a risk to the safety of society within a definite period of time.

[86] I, therefore, find that Mr. Brown is a dangerous offender pursuant to s. 753 of the Criminal Code and I sentence him to concurrent indeterminate terms of detention in a penitentiary on each of the serious personal injury offences namely: Count # 1, Count # 2, Count # 5, and Count # 6.

[87] On the remaining counts that are not serious personal injury offences I conditionally stay the following counts in accordance with the principle in Kienapple v. R., 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729: Counts # 4, 5, 8, 9, 10, 14 and 15. I am satisfied that there is the requisite factual and legal nexus between these counts and the other counts on the indictment for which Mr. Brown is convicted. In arriving at my conclusion I rely upon the same reasoning as in the recent decision of the Ontario Court of Appeal in R. v. Bienvenue, 2016 ONCA 865.

[88] On the remaining counts that are not conditionally stayed the appropriate sentences are as follows:

• Count # 3 - 4 years imprisonment
• Count # 7 - 10 years imprisonment
• Count # 11 - 2 years imprisonment
• Count # 12 - 2 years imprisonment
• Count # 16 - 2 years imprisonment
• Count # 19 – 2 years imprisonment
• Count # 20 – 2 years imprisonment
• Count # 23 – six months imprisonment

[89] The sentences on Counts # 7, 20 and 23 are all consecutive to each other. The sentences on Counts # 3, 11, 12, 16 and 19 are all concurrent. The determinate sentences above amount to a total sentence of 12 years and six months. They are concurrent to the indeterminate terms of detention.

[90] Mr. Brown is entitled to credit for pre-sentence custody. He has been in custody on these charges since May 7, 2012 (4 years and 8.5 months). He is entitled to enhanced credit on a 1.5 to 1 basis. Accordingly, he is entitled to credit for his pre-sentence custody of 7 years leaving a total determinate sentence of 5 years and six months remaining.

[91] Mr. Brown, I wish you good luck and I hope that your treatment while in custody eventually allows you to be released into the community.

HAINEY J.

Released: January 25, 2017