COURT FILE NO.: CR/15/70000/5080000
DATE: 20180404
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and -
TREVOR LETLOW
Respondent
N. Golwalla, for the Crown, Applicant
R. Yasskin, for Trevor Letlow, Respondent
HEARD: January 24, 25, 26, 29, 30 and
February 1, 2018
Croll J.
REASONS FOR sentence
OVERVIEW
[1] On October 7, 2016 Mr. Letlow was found guilty by me, sitting without a jury, of the following offences under the Criminal Code, R.S.C. 1985, c. C-46:
• COUNT 1: that he did, in committing a sexual assault on R.H., wound, maim, or disfigure R.H., and thereby commit an aggravated sexual assault, contrary to s. 273 of the Criminal Code;
• COUNT 2: an assault on R.H. while using a weapon, to wit: a pipe contrary to s. 267 of the Criminal Code;
• COUNT 3: an assault on R.H. while using a weapon, to wit: a clothing iron, contrary to s. 267 of the Criminal Code;
• COUNT 4: an assault on R.H. that caused bodily harm to her, contrary to s. 267 (b) of the Criminal Code;
• COUNT 5: a sexual assault on R.H. while using a weapon, to wit: a knife, contrary to s. 272 of the Criminal Code; and
• COUNT 6: that without lawful authority, he did confine R.H., contrary to s. 279(2) of the Criminal Code.
[2] On application by the Crown on January 25, 2017, I made an order pursuant to s. 752.1 of the Criminal Code that Mr. Letlow be remanded for an assessment by Dr. Phillip Klassen on the basis that he might be found to be a Dangerous Offender or a Long-Term Offender. I made a further order on April 20, 2017, extending the s.752.1 assessment report filing deadline to May 8, 2017.
[3] The Crown seeks a declaration that Mr. Letlow is a Dangerous Offender and a sentence of detention in a penitentiary for an indeterminate period on the basis that a traditional period of detention is insufficient to protect the public.
[4] In the alternative, the Crown seeks a declaration that Mr. Letlow is a Dangerous Offender, and a determinate sentence of 14 to 15 years (less pre-trial custody) with a 10-year long-term supervision order.
[5] Mr. Letlow concedes that he is a Long-Term Offender, and submits that a sentence of 10 to 12 years, with a 3 to 5-year long-term supervision order is appropriate.
PREDICATE OFFENCE
[6] The predicate offence occurred on January 30, 2015 in Mr. Letlow’s apartment in the Moss Park area of Toronto.
[7] The Complainant, R.H., is addicted to crack cocaine, and around the time of the offences, she used the drug regularly, essentially whenever she could get it. However, at trial she was clear that she had not consumed crack cocaine or alcohol for some four days before the start of trial and that she did not consume crack cocaine during the trial.
[8] As reviewed in my reasons for finding Mr. Letlow guilty, there was significant evidence confirming the events as described by Ms. R.H.. I was persuaded beyond a reasonable doubt by the Crown evidence about what occurred that day.
[9] Ms. R.H. and Mr. Letlow were smoking crack cocaine in Mr. Letlow’s bachelor apartment. According to Ms. R.H., Mr. Letlow first offered her a toke of crack in the early morning hours, at around 3:00 a.m. He then offered her a 100 piece of crack in exchange for her giving Mr. Letlow oral sex, or as she stated, giving him a “blow job”. She gave Mr. Letlow a blow job, consensually, but stopped before he ejaculated. According to Ms. R.H., Mr. Letlow then did another toke, after which time, he got “all weird” or “all crazy”. Mr. Letlow hit her ankles with an aluminum bar that was in his apartment and threatened to cut her if she moved.
[10] Mr. Letlow continued smoking crack and took what Ms. R.H. described as a cooking knife from the kitchen drawer and cut the outside top of her left leg with the knife. Ms. R.H. resumed giving Mr. Letlow a blow job, but this time she did not want to do so. She did so because she was bleeding in her legs and thought that if she did what he wanted, he might leave her alone.
[11] Mr. Letlow proceeded to cut Ms. R.H.’s back and other areas of her body after she tried, unsuccessfully, to run out of the apartment. He hit her in the head with a clothing iron, and picked her up against the wall, with his fingers at her throat. According to Ms. R.H., she did another toke of crack, and was then subjected to more knife attacks by Mr. Letlow. She said that he tried to cut off her baby toe, and cut the inside of her feet, her shoulders and her arms.
[12] Mr. Letlow then, in the words of Ms. R.H., tried to “put his penis in [her] pussy”, but she told him no, she did not want sex. He made one or two attempts to do this, but was unable to put his penis into her. He tried to cut her vagina, but he instead cut her buttock.
[13] Ms. R.H. then followed Mr. Letlow’s order to get cleaned up. She took a shower and he poured a box of salt on her, apparently to help deal with the wounds.
[14] After Ms. R.H. showered, she wrapped herself in a blanket to stop the bleeding. She and Mr. Letlow went to the variety store across the street from his apartment, where Mr. Letlow purchased two one-liter size bottles of pink crush. They then returned to the apartment, where Mr. Letlow threw the soft drink all around the apartment. According to Ms. R.H., Mr. Letlow had a knife with him when they left the apartment, and as such, she was afraid to try to leave him. The two of them then took a cab to the Ministry of Community and Social Services office (“ODSP” office) at Yonge and Wellesley. It was cheque day.
[15] Mr. Letlow was very aggressive and belligerent at the ODSP office as Ms. R.H. was waiting in line. He was told to leave by D.C. Tom Comeau, a police officer on paid duty there. Once Ms. R.H. was in a private office with an ODSP employee, she told the ODSP employee that she had been stabbed, and then she fainted. Her evidence was that she had suffered numerous cuts and slashes on her face, head, shoulder, hand, legs, foot and back, all inflicted by Mr. Letlow. D.C. Comeau repeatedly testified that the sight of Ms. R.H.’s injuries was something that he would never forget, and that they were some of the worst injuries he had seen during his 12 years with the Toronto Police Service. The photographs of Ms. R.H.’s injuries filed at trial support D.C. Comeau’s reaction.
Victim Impact Evidence
[16] Ms. R.H. provided a Victim Impact Statement via a video interview conducted with police officers on April 17, 2017. While Ms. R.H. was not under oath when speaking to the officers, she was cautioned to tell the truth. Ms. R.H. offered some poignant reflection about how this attack has impacted her, emotionally and physically.
[17] As stated, Ms. R.H. is a drug addict. She stated that she has become depressed, and that when she thinks of Mr. Letlow and the attack, she cannot sleep. As a result, she takes more and stronger drugs. Ms. R.H. stated that before the attack, she used crack cocaine, but that she has now moved on to needles and morphine to help deal with her pain. She stated that her drug use has increased significantly since the attack. Ms. R.H. told the officers repeatedly that she often thinks about suicide, and that she never had those thoughts before the attack.
[18] Ms. R.H. described intermittent continuing physical pain in her ankle, and continuing discomfort in her back. She stated that she does not want to wear shorts because of the scars on her legs.
[19] Ms. R.H. also expressed fear for her personal safety, as she says she is considered “a rat” in the community. She is concerned about what Mr. Letlow would do to her if he is released, and is deeply afraid of him and his friends.
Criminal Record of Mr. Letlow
[20] Mr. Letlow is currently 51 years-old. He has a lengthy criminal record, beginning in 1982 when he was 16 or 17 years-old:
• 1982: Theft Under
Mr. Letlow received a conditional discharge and one year probation.
• 1983: Assault
Mr. Letlow received a suspended sentence and one year probation.
• 1987: Fail to Comply with Recognizance
Mr. Letlow was fined $250.
• 1987: Fail to Appear
Mr. Letlow was fined $100.
• 1988: Found in Common Bawdy House, Mischief
Mr. Letlow received a suspended sentence and 15 months’ probation.
• 1988: Fail to Comply with Recognizance x2
Mr. Letlow received a sentence of one day in custody.
• 1988: Fail to Comply with Recognizance
Mr. Letlow received a sentence of 30 days.
• 1989: Theft Under, Possession Under, Fail to Comply with
Recognizance x2, Fail to Appear
Mr. Letlow received a 3-month sentence.
• 1989: Assault, Fail to Appear x2
Mr. Letlow received a sentence of 3 months and 2 years’ probation.
• 1990: Escape Lawful Custody, Fail to Comply with Recognizance
Mr. Letlow received a sentence of 60 days.
• 1991: Traffic Narcotic x2, Fail to Comply with Recognizance x2
Mr. Letlow received a sentence of 9 months.
• 1991: Conspiracy to Traffic in a Narcotic, Traffic Narcotic x5
Mr. Letlow received a sentence of 10 months.
• 1992: Unlawfully at Large
Mr. Letlow received a sentence of 60 days.
• 1993: Possession Under
Mr. Letlow received a sentence of 60 days.
• 1994: Possess Narcotic
Mr. Letlow received a sentence of 21 days.
• 1996: Fail to Comply with Recognizance
Mr. Letlow received a sentence of 20 days after 9 days’ pre-trial custody.
• 1996 Possession Under, Fail to Comply with Recognizance
Mr. Letlow received a sentence of one day and one year probation after 48 days’ pre-trial custody.
• 1996: Assault, Assault Peace Officer, Fail to Comply with Recognizance,
Fail to Appear x2
Mr. Letlow received a sentence of one day after 7 months’ pre-trial custody.
• 1996: Traffic Narcotic, Fail to Appear x2
Mr. Letlow received a sentence of 90 days.
• 1997: Possession Over
Mr. Letlow received a sentence of 8 days after 12 days’ pre-trial custody.
• 1997: Traffic Narcotic x2
Mr. Letlow received a sentence of 45 days after 159 days’ pre-trial custody.
• 1998: Possession Under
Mr. Letlow received a sentence of 4 days after 3 days’ pre-trial custody.
• 1998: Traffic Schedule I Substance
Mr. Letlow received a suspended sentence and one year probation after 7 months’ pre-trial custody.
• 1999: Traffic Schedule I Substance
Mr. Letlow received a sentence of 60 days after 6 months and 2 weeks’ pre-trial custody.
• 2000: Traffic Schedule I Substance
Mr. Letlow received a sentence of 6 months after 6 months’ pre-trial custody, and one year probation.
• 2000: Assault Peace Officer
Mr. Letlow received a sentence of 40 days consecutive to the sentence above.
• 2000: Fail to Comply with Probation
Mr. Letlow received a sentence of 45 days after 2 days’ pre-trial custody.
• 2001: Fail to Comply with Probation
Mr. Letlow received a sentence of 15 days after 11 days’ pre-trial custody.
• 2002: Assault Resist Arrest, Assault Causing Bodily Harm, Aggravated
Assault, Escape Lawful Custody, Obstruct Peace Officer
Mr. Letlow received a sentence of 12 months after 17 months’ pre-trial custody.
• 2004: Assault Cause Bodily Harm
Mr. Letlow received a sentence of 3 months and one year probation.
• 2006: Aggravated Assault
Mr. Letlow received a sentence of 6 years, with credit for the equivalent of 2 years’ pre-trial custody.
• 2008: Statutory Release
• 2009: Statutory Release Violated
Mr. Letlow was recommitted.
• 2010: Assault, Attempt Theft Under
Mr. Letlow received a sentence of 23 days after 61 days’ pre-trial custody.
• 2011: Carry Concealed Weapon
Mr. Letlow received a sentence of 21 days after one day pre-trial custody.
• 2011: Traffic Cocaine
Mr. Letlow received a suspended sentence and 9 months’ probation, with credit for the equivalent of 166 days of pre-trial custody.
• 2013: Robbery
Mr. Letlow received a sentence of 45 days after 266 days’ pre-trial custody, along with 12 months’ probation.
• 2014: Fail to Appear
Mr. Letlow received a sentence of 15 days’ pre-trial custody.
• 2016: Aggravated Sexual Assault, Assault with a Weapon x2,
Assault Causing Bodily Harm, Sexual Assault with a Weapon,
Forcible Confinement
These are the predicate offences.
[21] Much of Mr. Letlow’s record is typical of that of a drug addict. The drug possession, drug trafficking, possession of property obtained by crime, and failure to comply convictions are often common entries on the record of a serious drug addict. However, Mr. Letlow’s record also includes some 16 assault convictions.
[22] While there are assault convictions in 1983 and 1989, Mr. Letlow’s first significant sentence for assault was in 1996. At that time, Mr. Letlow apparently tried to engage a pedestrian in a drug related conversation. He punched and kicked a person who tried to intervene in the conversation. When the police spoke to Mr. Letlow a few days later and asked for his bail papers, it appears that he punched a police officer. As set out above, he was sentenced to one day, after seven months of pre-trial custody.
[23] In 2000, Mr. Letlow was convicted of punching an undercover drug officer when he tried to arrest him, and was sentenced to 40 days, consecutive to a 6 month sentence for trafficking, which was after 6 months of pre-trial custody. This sentence was followed by one year of probation.
[24] In 2002, during another drug arrest, Mr. Letlow punched a police officer to the point of unconsciousness, and also struck a female police officer. This led to convictions for assault while resisting arrest, assault causing bodily harm and aggravated assault, among other charges, and a sentence of 12 months, following 17 months of pre-trial custody.
[25] In 2004, Mr. Letlow was convicted of assault causing bodily harm. The victim was Brenda Turansky, with whom Mr. Letlow had been in a common-law relationship for a few months. It was alleged that he grabbed her throat, and dragged and punched her. He received a sentence of three months followed by one year of probation.
[26] Two years later, in 2006, Mr. Letlow was found guilty of an aggravated assault on another female victim. He had also been charged with assault with a weapon, and fail to comply with probation (carrying a weapon). The victim was A.B.. The transcript indicates that Mr. Letlow and Ms. A.B. were seeking crack cocaine. Apparently, while they were preparing to use the cocaine, Ms. A.B. was loud, causing Mr. Letlow to punch her, and when she tried to leave, he reportedly dragged her by the hair and punched her again. Mr. Letlow admitted striking Ms. A.B., but somehow tried to rationalize it. Ms. A.B. suffered trauma to her face and head, and bleeding in her brain and the medical evidence suggested that she likely suffered a fracture at the base of her skull. In sentencing Mr. Letlow to four years, in addition to credit of two years for pre-trial custody, the sentencing judge noted that the complainant was a vulnerable person and the assault upon her was out of proportion entirely to the difficulty that Mr. Letlow said she was causing at his apartment.
[27] In 2010 Mr. Letlow pled guilty to assault, together with theft under. He was sentenced to 23 days, after 61 days of pre-trial custody. The victim was looking to buy some crack, and Mr. Letlow had told the victim to follow him. When they reached their location, Mr. Letlow attempted to take the victim’s money. Mr. Letlow grabbed hold of the victim with both hands, forced him up against an iron fence and punched him so hard that the victim struck the back of his head on the fence.
[28] In 2013, Mr. Letlow pled guilty to robbery. He and the victim had been partying, drinking and consuming drugs. At some point, Mr. Letlow had fallen asleep, however he awoke angry and demanded that the victim give him his jacket. The victim refused, and Mr. Letlow grabbed a kitchen knife, repeated the demand for the jacket and poked at the victim. Mr. Letlow also punched at the victim, during which time the victim tried to grab the knife and in doing so, cut his finger. The victim also suffered a bruise to his cheek and a few cuts on his fingers. Mr. Letlow was sentenced to 45 days after 266 days of pre-trial custody, together with 1 year probation.
[29] The circumstances of the predicate offence in 2016 have already been reviewed.
Dangerous Offender Legislation
Designation as Dangerous Offender
[30] The relevant provisions of the Code are as follows:
Application for finding that a person is a dangerous offender
753 (1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied
(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing
(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour,
(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or
(iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; or
(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.
[31] There is no issue that Mr. Letlow has been convicted of a serious personal injury offence as defined in both ss. 752(a) and (b) of the Code.
[32] While the Crown need only prove one set of criteria to establish that a dangerous offender designation is justified, the Crown position is that Mr. Letlow meets all the criteria of a dangerous offender under sections 753(a)(i), (ii) and (iii) and the criteria of a dangerous sexual offender under s. 753(1)(b): see R. v. Boutilier, 2017 SCC 64, at para. 19.
[33] In Boutilier, at para. 45, the Supreme Court also held that:
At the designation stage, treatability informs the decision on the threat posed by an offender, whereas at the penalty stage, it helps determine the appropriate sentence to manage this threat. Thus, offenders will not be designated as dangerous if their treatment prospects are so compelling that the sentencing judge cannot conclude beyond a reasonable doubt that they present a high likelihood of harmful recidivism or that their violent pattern is intractable: see Neuberger, at p. 7-1, by M. Henschel. However, even where the treatment prospects are not compelling enough to affect the judge's conclusion on dangerousness, they will still be relevant in choosing the sentence required to adequately protect the public.
Section 753(1)(a)(i)
[34] The first element in para. (i) of s. 753(1)(a) of the Code is a pattern of repetitive behaviour. This pattern (which must include the predicate offence) must demonstrate a failure to restrain behavior: see R. v. Naess, [2005] O.J. No. 936 (S.C.J.). The pattern may be established on the basis of one 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 offender’s crimes must contain similarities with each other in order to create the pattern, but there can still be distinctive differences as long as the key significant elements remain: see R. v. Hogg, 2011 ONCA 840, [2011] O.J. No. 5963 at paras. 34-44; R. v. Szostak, 2014 ONCA 15, 118 O.R. (3d) 401, at paras. 56-64; and Boutilier, supra, at paras. 56-57.
[35] Upon comparing the predicate offence with the 2006 conviction for aggravated assault, the following factors reveal a pattern in Mr. Letlow’s behaviour:
• crack cocaine was involved in both offences
• both offences occurred in the early morning hours
• both offences occurred at Mr. Letlow’s residence
• both victims were female and both physically smaller than Mr. Letlow
• Mr. Letlow used severe violence to exert his will over both victims
• Mr. Letlow used severe violence to prevent both victims from leaving his apartment
• neither victim was physically instigating nor physically aggressive
• both victims suffered from severe injuries entirely disproportionate to that needed to gain compliance.
[36] Dr. Phillip Klassen was called by the Crown. Dr. Klassen was accepted as an expert in the area of forensic psychiatry, specifically with respect to diagnoses, risk assessment and risk management. The defence did not call any evidence.
[37] Dr. Klassen prepared a psychiatric assessment of Mr. Letlow, pursuant to s. 752.1 of the Criminal Code. He listed the sources of information upon which he relied, that included the following:
i. meeting with and interviewing Mr. Letlow in custody, on March 3, 2017, March 22, 2017, and March 25, 2017, for a total interview time of approximately 4.5 hours;
ii. flagging file;
iii. Ontario Ministry of Community Safety and Correction Services (MCSCS) records;
iv. Correctional Service Canada (CSC) records;
v. behavioural history, including information regarding some of Mr. Letlow’s prior offences, along with a copy of his criminal record;
vi. Speaking with Mr. Letlow’s sister, Brenda Hunt
[38] Among other things, it is clear from the report of Dr. Klassen, and Mr. Letlow’s self-reporting to Dr. Klassen, that Mr. Letlow’s use of crack cocaine is central to his criminal conduct.
[39] It is also clear from a review of the assaultive behaviour in Mr. Letlow’s criminal record, and Dr. Klassen’s report, that Mr. Letlow regularly engages in violence, at times, extreme violence. This behavior is illustrated by the 2006 assault of Ms. A.B. and the 2015 assault of Ms. R.H.. He also assaulted his former partner, Brenda Turansky, in 2004. However, Mr. Letlow’s violence is not solely directed to vulnerable women. Mr. Letlow’s criminal history shows serious assaults on police trying to arrest him and assaults on fellow drug users.
[40] I am satisfied beyond a reasonable doubt that Mr. Letlow has engaged in a pattern of repetitive behaviour, showing a failure to restrain his behaviour. I come to this conclusion after considering the predicate offence and the 2006 aggravated assault conviction, and after considering the predicate offence and Mr. Letlow’s extensive criminal history.
[41] The second element in paragraph (i) is that the pattern must reveal a likelihood that the offender will cause death, injury or severe psychological damage to others through failure to control his future behaviour.
[42] Likelihood of reoffending is a not the same as certainty of reoffending: see R v. Payne (2001), 2001 CanLII 28422 (ON SC), 41 C.R. (5th) 156, [2001] O.J. No. 146, at para. 114 (S.C.). Likelihood is tantamount to probability. If there is a probability that the offender will re-offend, then the standard is met: see R. v. J.T.H., 2002 NSCA 138, at paras. 50, 72.
[43] In his report, under the heading of “Risk Assessment”, Dr. Klassen opines as follows:
To conclude, if this gentleman was released today, I believe that this gentleman is at moderately high risk of aggressive behaviour under standard release conditions, and likely is at high risk of aggressive behaviour without (active or effective) supervision. He’s likely at moderate risk of sexual misbehaviour.
[44] Dr. Klassen goes on to say:
In my opinion this gentleman presents, if released today, and particularly if released to the lifestyle that he’s lived previously, with a probability of violent re-offense, albeit not a high probability.
[45] On the basis of Mr. Letlow’s criminal history, Dr. Klassen’s diagnosis and Ms. R.H.’ victim impact evidence, I am satisfied beyond a reasonable doubt of the likelihood of Mr. Letlow causing death or injury, or inflicting severe psychological damage, through a failure in the future to restrain his behaviour.
Section 753(1)(a)(ii)
[46] Pursuant to s. 753(1)(a)(ii) of the Code, a person can be declared a dangerous offender if the Crown proves beyond a reasonable doubt that the offender is a threat to the life, safety, physical or mental well-being of other persons.
[47] This threat is based on evidence establishing the offender has engaged in a pattern of persistent aggressive behaviour, including the predicate offence, which shows a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his behaviour: see R. v. Hogg, supra, at para. 38.
[48] In the analysis of persistent aggressive behaviour, similarities between the predicate offence and past offences are not determinative. Rather, the predicate offence must be another example of aggressive behaviour: see R. v. Pike, 2010 BCCA 401, at paras. 80-82.
[49] When examining whether the offender has exhibited substantial indifference, the offender’s actions at and around the time of the offence must be examined, as well his conscious but uncaring awareness of causing harm to others over time and his efforts (or lack thereof) to curb that offending behaviour: see R v Camara, 2013 ONCJ 534, at paras. 487-495.
[50] As stated, in his almost 35-year criminal history, Mr. Letlow has some 16 convictions for assault. Six of these assault convictions are aggravated or assault causing bodily harm. His victims include vulnerable women, police officers and fellow drug users. The predicate offence involves the use of weapons, namely an iron bar, a kitchen knife and a clothes iron. In essence, Mr. Letlow used whatever was close at hand in his assault on Ms. R.H.. Mr. Letlow’s conviction for robbery in 2013 also involved the use of a knife. As well, he told Dr. Klassen that he carries a knife while trafficking in cocaine. The use of the weapons by Mr. Letlow demonstrates his aggressive behavior as well as bald-faced disregard for the multiple s. 109 orders imposed on him.
[51] Further, and significantly, Mr. Letlow understands that cocaine triggers his violent criminal behaviour. That said, he has regularly ignored court orders to address this risk factor, and returns to using cocaine.
[52] The decision of the National Parole Board, dated April 16, 2009 describes how Mr. Letlow rationalizes and does not accept responsibility for his criminal activity. That decision assessed Mr. Letlow’s behaviour during his then current release, and identified risk factors. The Board revoked his statutory release, on the basis that his risk could not be safely managed. It noted, among other things:
i. That Mr. Letlow failed to report as required after being released on statutory release on October 22, 2008 but traveled to his sister’s home instead, and maintained that his mistake was due to a misunderstanding of the rules;
ii. When Mr. Letlow was found outside of his restricted boundaries, he insisted that he had told his supervisor of the change in residence;
iii. Mr. Letlow minimized his need for intensive drug treatment;
iv. Mr. Letlow did not attend scheduled supervision and counselling sessions; and
v. Mr. Letlow continued to carry a crack pipe.
[53] Mr. Letlow was then released on statutory release in October 2009. Just over one month later, he tested positive for cocaine. This occurred after he had completed the National High Intensity Substance Abuse Program while in custody, where he was described as an excellent student. Mr. Letlow was also found with a woman, and failed to report the contact, as he was required to do by the terms of his release. In a decision dated February 17, 2010 the Parole Board again revoked Mr. Letlow’s statutory release. It again described Mr. Letlow’s attempts to rationalize his conduct, noting his comment that the finding of cocaine was probably due to second hand smoke. The Parole Board stated that Mr. Letlow’s conduct denoted a “blatant disregard for conditions imposed by the Board on his statutory release that were designed to mitigate his risk of re-offending and to protect the public”.
[54] Mr. Letlow has reoffended, often violently, for more than three decades. He frequently minimizes his conduct and at times, blames his victims. For example, in the 2004 assault on Ms. Turansky, Mr. Letlow stated that she slapped him first. In the 2006 aggravated assault on Ms. A.B., Mr. Letlow stated that his actions were undertaken simply to stop Ms. A.B. from acting out when she was high on drugs. With respect to the 2011 conviction for carrying a concealed weapon, Mr. Letlow stated that it was handy to do so, given the use of crack cocaine. This minimization and rationalization is indicative of Mr. Letlow’s utter indifference to the reasonably foreseeable consequences to others of his criminal behaviour.
[55] Mr. Letlow’s indifference also appeared to be recognized by the Ontario Court of Appeal, in its brief endorsement upholding the 6 year sentence for aggravated assault imposed by the trial judge in 2006: see R. v. Letlow (2006), 72 W.C.B. (2d) 766, [2006] O.J. No. 5173. There, the Court stated at para. 1: “Untreated, the appellant remains a serious danger to the public and to date there is little to suggest that the appellant is capable of rehabilitation.”
[56] The circumstances surrounding the predicate offence further demonstrates substantial indifference on the part of Mr. Letlow. He poured salt on Mr. R.H.’s terrible wounds and took her to the convenience store, where she was afraid to leave his side because he had a knife. Stated simply, he ignored her obvious need for immediate medical treatment.
[57] Notwithstanding Mr. Letlow’s very positive evaluations on the High Intensity Substance Abuse Program he completed in 2007, it is apparent that he cannot effectuate what he was taught. His record of reoffending confirms this inability, as does Dr. Klassen, who stated that, “This gentleman was reported to have done very well in that treatment, but in my evaluation of residual skills related to that programming his presentation was weak.”
[58] According to Dr. Klassen, Mr. Letlow’s failure to put into practice the relapse prevention skills learned in his programming could be due to his personality disorder, his attraction to the criminal life style, where Mr. Letlow ostensibly sees himself as powerful and successful, and increasing severity in his cocaine addiction.
[59] Overall, I have considered the rationalization that Mr. Letlow provided for his violent attack on Ms. A.B., the observation of the Court of Appeal for Ontario regarding Mr. Letlow’s incapacity for rehabilitation, the recklessly cavalier treatment of Ms. R.H. when she was very seriously injured, the fact that the predicate offence post-dates an intensive drug therapy program, and Dr. Klassen’s opinion regarding Mr. Letlow’s inability to effectively internalize a relapse prevention plan. I am satisfied beyond a reasonable doubt that Mr. Letlow has displayed a pattern of persistent aggressive behaviour showing a substantial degree of indifference respecting the reasonably foreseeable consequences to other persons of his behaviour.
Section 753(1)(a)(iii)
[60] Section 753(1)(a)(iii) of the Code requires that there be such brutal behavior that the offender’s future behavior is unlikely to be inhibited by normal standards of behavioural restraint.
[61] The case law has interpreted what is encompassed in the brutal nature of the offences.
[62] In R. v. Langevin (1984), 1984 CanLII 1914 (ON CA), 45 O.R. (2d) 705, [1984] O.J. No. 3159 (C.A.), at paras. 33-34, the Court stated that conduct which is coarse, savage and cruel and which is capable of inflicting severe psychological damage on the victim is sufficiently "brutal" to meet the test.
[63] In R. v. Campbell (2004), 2004 CanLII 19316 (ON SC), 120 C.R.R. (2d) 231, [2004] O.J. No. 2151 (Sup. Ct.) at paras. 55-57, Hill J. stated as follows:
Ascertainment of the existence of brutality will vary with the crime itself, the way in which the offence is committed, the effect(s) on the victim, and the offender's attitude and mental state.
Review of the authorities cited at note 1 demonstrates a settled approach to the interpretation of 'brutal' as cruel, savage, inhuman conduct. Depending on case-specific circumstances, many of the cases have involved one or more of the following features: extreme violence inflicting horrendous physical injuries, causing continuing emotional distress, ‘sadistic’ or ‘inhuman’ behaviour, ‘gratuitous’ or ‘unnecessary’ violence, ‘torture’ or ‘degrading’ conduct, ‘prolonged’ violence, multiple acts of violence, ‘unprovoked’ violence, leaving the victim semi-conscious or unconscious or persisting in violence despite the victim being in such a state, and attacks of vulnerable victims such as an elderly person.
What is immediately apparent, in a most unfortunate sense, is that brutal behaviour is not simply commission of a serious personal injury offence but rather something quite out-of-the-ordinary for such a crime.
[64] In this case, Ms. R.H. was violently slashed by Mr. Letlow. D.C. Comeau, an experienced police officer, described her injuries as some of the worst he had ever seen. Ms. R.H., already a vulnerable victim, has suffered great emotional and psychological harm as a result of this attack. The personal demons and flaws from which she suffered before the assault have been sadly and seriously exacerbated by the assault.
[65] On all of the evidence, I am satisfied beyond a reasonable doubt that Mr. Letlow’s behaviour in the predicate offence is of such a brutal nature as to compel the conclusion that his behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint.
Section 753(1)(b)
[66] The Crown further submits that Mr. Letlow has shown a failure to control his sexual impulses and that there is a likelihood for causing injury, pain, or other evil to other persons through failure in the future to control his sexual impulses.
[67] Dr. Klassen testified that there was maximum uncertainty about the sexual element in the predicate offence of aggravated sexual assault and sexual assault with a weapon. He noted that these are Mr. Letlow’s first convictions for sexual offences, that the assaults had anomalous features, and what occurred was highly unusual. Mr. Letlow did not agree to phallometric testing by Dr. Klassen. It is likely that this testing would have offered some insight into whether or not Mr. Letlow has a coercive sex problem, together with the other issues identified by Dr. Klassen, namely a personality disorder, attraction to the street life of crime, and a dangerous and severe cocaine addiction.
[68] The Crown urges me to consider Mr. Letlow’s refusal to submit to phallometric testing when assessing his future risk and failure to control his sexual impulses.
[69] It is clear that Mr. Letlow has a violent past, and the predicate offence includes violent sexual assault. However, the sexual assault on Ms. R.H. was Mr. Letlow’s first conviction for a sexual assault throughout his extensive criminal history. Dr. Klassen could offer no insight as to what prompted an attack of this nature. While acknowledging that phallometric testing would have been helpful, Dr. Klassen opined as follows about the sexual assault on Ms. R.H.:
I would offer this tentatively given the limited database, it’s not my sense, based on file information, that an underlying paraphilic disorder, or sexual deviation, is responsible for the sexual offending. Rather, this sex offending behaviour strikes the undersigned as consistent with an individual who might be substantially cocaine-intoxicated, and/or suffering secondary symptoms of cocaine intoxication (possibly paranoia or related symptoms).
[70] On all the evidence, including the nature of Mr. Letlow’s criminal history and Dr. Klassen’s tentative assessment set out above, I am not satisfied beyond a reasonable doubt that there is a likelihood that Mr. Letlow will cause injury, pain, or other evil to other persons in the future through failure to control his sexual impulses.
Declaration of Dangerous Offender
[71] Mr. Letlow’s criminal record spans over three decades. Despite extensive treatment, including the High Intensity Substance Abuse Program, Mr. Letlow’s criminal conduct has continued and, in fact, has increased in intensity. He has not complied with the terms of his release, and has had his parole revoked twice. While Mr. Letlow’s allocution before being sentenced for the aggravated assault on Ms. A.B. in 2006 addressed his need to change, those words are just meaningless platitudes when considered in light of his conduct following that sentence. Stated simply, Mr. Letlow has failed to deal with his crack cocaine addiction, which is at the root of his dangerousness. The treatment prospects described by Dr. Klassen are not so compelling that it can be said that Mr. Letlow does not have a high likelihood of recidivism. For all these reasons, I am satisfied beyond a reasonable doubt that Mr. Letlow’s violent criminal conduct is intractable.
[72] Mr. Letlow is declared a Dangerous Offender on the basis of ss. 753(1)(a)(i), (ii) and (iii) of the Criminal Code.
Sentence
[73] Pursuant to s. 753(4) of the Criminal Code, once an offender is declared a dangerous offender, the court may impose an: (a) an indeterminate sentence; (b) a fixed sentence for a minimum of two years and a Long-Term Supervision Order for a period that does not exceed 10 years; or (c) a fixed sentence.
[74] Section 753(4.1) provides as follows:
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.
[75] Accordingly, the issue is whether, on the totality of the evidence, there is a reasonable expectation that a lesser measure will adequately protect the public: see R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357, at para. 29.
[76] A mere hope that an offender will be rehabilitated or that the offender’s risk can be controlled at some unspecified time in the future amounts to speculation and is not a sufficient basis to impose a determinate sentence.
[77] As well, there must be evidence specific to the particular offender that indicates that the risk he or she poses can be controlled by the imposition of something less than an indeterminate sentence. In R. v. Higginbottom (2001), 2001 CanLII 3989 (ON CA), 156 C.C.C. (3d) 178, [2001] O.J. No. 2742 (C.A.), the accused was convicted of sexual assault, invitation to sexual touching and possession of child pornography after he attempted to exchange money for oral sex from a 12 year-old victim, and after being refused, he masturbated in front of the same child’s group of friends. Later, police found child pornography videos and written material in his home. He was declared a dangerous offender and sentenced to a determinate term of 11 years. In that case, the Court of Appeal held the sentencing judge erred in imposing a determinate sentence because the sentencing judge relied on a general statement from the psychiatrist about the treatability of persons in denial. The doctor’s evidence was not specific to Mr. Higginbottom’s situation, and in fact, was contradicted by other evidence.
[78] Further, if there is uncertainty as to whether the evidence establishes that there is a reasonable expectation that a lesser measure under ss. 753(4)(b) or (c) will adequately protect the public against the commission by the offender of a serious personal injury offence, the protection of the public criterion must prevail: R. v. F.E.D., 2007 ONCA 246, 84 O.R. (3d) 721, at paras. 38-55; R. v. D.V.B., 2010 ONCA 291, 100 O.R. (3d) 736, at paras. 58, 61.
[79] In this case, it is Dr. Klassen’s opinion that there is a reasonable possibility of eventual control of Mr. Letlow’s risk in the community. He states as follows in his May 8, 2017 report:
In terms of risk management of Mr. Letlow, I would recommend the following:
This gentleman should likely again be offered treatment as regards both substance abuse, and violence, as was offered to him while at CSC, previously. This gentleman was reported to have done very well in that treatment, but in my evaluation of residual skills related to that programming his presentation was weak.
Certainly this gentleman should abstain entirely from use of non-prescribed agents, and should be required to submit samples of his breath or urine to ascertain the same. I have some concerns that alcohol, which of course is readily available, may be a gateway substance for this individual and out of an abundance of caution would likely extend the proscription to alcohol as well. Antabuse may be of some assistance in this respect.
This gentleman should refrain from associating with persons with a criminal record, except in circumstances or situations in which it’s unavoidable (for example while residing at a Community Correctional Centre or Community Release Facility).
This gentleman should avoid certain geographic locations.
This gentleman should seek and maintain employment, and should pursue more structured leisure interests.
At such times as this gentleman may return to the community, he should be required to report any potential or active intimate relationships to those supervising him.
It’s difficult to offer a particularly firm or unequivocal opinion as regards risk, and manageability. This gentleman has a significant criminal record, and in contradistinction to what one might expect, has demonstrated more substantial violent behaviour latterly, than earlier in his life, inconsistent with the expected age-related decline in propensity for, and severity of, aggressive behaviour. That being said, this gentleman is now 50 years of age, and while of course I can’t be certain I would expect that this gentleman could receive quite a substantial fixed sentence, in terms of the predicate offenses. Notwithstanding his recent difficulties, I would still expect that this gentleman’s risk for serious violence, after age 60, and risk for return to addictions, should be significantly attenuated.
[80] With respect, in my view, Dr. Klassen’s opinion about release is problematic in two ways. Firstly, it relies on supervision conditions for a long-term supervision order that have failed to control Mr. Letlow’s offending in the past. Secondly, it is grounded in the statistics of age attenuation. Age attenuation assumes that as an offender ages, he will become less violent.
[81] I turn firstly to the conditions proposed. The evidence does not establish that Mr. Letlow can be trusted to comply with the conditions of a long-term supervision order. In particular, I note the following:
(i) Mr. Letlow has already received the treatment offered by CSC that Dr. Klassen recommends for substance abuse and violence and it has failed to control his offending. Of note, as stated, is that Mr. Letlow has participated in the High Intensity Substance Abuse program offered through Corrections Canada, and has also had access to community based treatment. As recognized by Dr. Klassen, “despite these interventions, periods of desistance have been brief”.
(ii) Mr. Letlow has never managed to abstain from cocaine and alcohol (which Dr. Klassen notes may be a gateway substance for cocaine) for longer than a (self-reported) year. While Dr. Klassen notes that Mr. Letlow is prepared to try Antabuse, which is a medication used in the treatment of alcohol addiction, it is not a treatment for cocaine addiction, and there is no evidence from which to conclude that Mr. Letlow’s cocaine addiction is always triggered by alcohol.
(iii) Mr. Letlow has repeatedly breached court orders to stay out of geographic areas where cocaine is readily available.
(iv) Mr. Letlow has not even complied with modest conditions while on release, such as informing his parole officer of active intimate relationships with others.
(v) Dr. Klassen notes that, “This gentleman has also presented challenges in terms of accountability. He has at times been quite unstable in the community and difficult to supervise. He has not always been fully self-disclosing with those supervising him. He’s presented challenges to law enforcement, when he’s required re-arrest.”
[82] Dr. Klassen’s opinion acknowledges that Mr. Letlow’s risk appears almost unmanageable in the community. However, as stated, he grounds his opinion about risk management on the statistics that support age attenuation, commonly known as “burn out theory”. He states as follows:
Notwithstanding this gentleman’s very challenging last one and one-half decades, and while this gentleman’s risk appears almost entirely unmanageable in the community, today, were this gentleman to receive a fixed sentence that would take him to (roughly) age 60 one would think there would be psychiatric support for ‘reasonable expectation’ or ‘reasonable possibility’.
[83] Dr. Klassen’s reliance on age attenuation must be examined in terms of Mr. Letlow’s actual offending. It is clear on the evidence that Mr. Letlow’s criminal conduct has become more violent in recent years. The 2006 aggravated assault on Ms. A.B. caused her serious injuries, for which Mr. Letlow received a six-year sentence. This was followed by an assault conviction in 2010, where Mr. Letlow held a victim up against an iron fence, and a robbery conviction in 2013, which involved the use of a knife. The predicate offence again involved a knife, as well as an iron bar and a clothes iron, common household items used as weapons by Mr. Letlow to inflict serious harm. As well, it was the first time in Mr. Letlow’s lengthy criminal history that he was convicted of a crime of sexual violence.
[84] While Dr. Klassen relies on the statistics that indicate that as Mr. Letlow turns age 60, the risk he presents should be around zero for violent and sexual offending, he also candidly acknowledges the uncertainty inherent in his opinion. In his report, Dr. Klassen refers to the contradistinction in Mr. Letlow’s behaviour, namely that he has shown substantially more violence in recent years than earlier in his life, which is incompatible with the statistics that predict age attenuation, and expected decline in violent behavior.
[85] Dr. Klassen was candid in his oral evidence that Mr. Letlow does not conform to the statistical scientific evidence that supports age attenuation, but nonetheless, his opinion is that the statistical evidence is reliable. That said, Dr. Klassen’s report appears to recognize the inherent contradiction in, and inapplicability of, relying on age attenuation to assess risk in the case of Mr. Letlow. He states as follows in his report under the heading “Diagnosis”:
This gentleman has been described, in the past, as doing well in treatment, and as seemingly committed to lifestyle change, but return to substances or criminal recidivism has typically been quick, and I would note that notwithstanding extremely positive reports about this gentleman from CSC, in terms of both substance and family violence treatments, he not only was revoked on Mandatory Supervision twice [after just 4 months and one month in the community], but breached multiple conditions without informing his parole officer (residency, intimate partner, return to cocaine use). Also, at variance with what one might expect, as one ages, this gentleman’s criminal convictions appear to be progressively more serious; I would note that this gentleman’s first serious set of personal injury offences date to 2002, and since that time this gentleman has been quite consistently convicted for aggressive behavior in the community. Why this gentleman should present as more physically aggressive after age 35, as opposed to before, is not clear; Mr. Letlow himself wasn’t particularly clear on this point, albeit volunteered that his addictions difficulties may have become more severe. Of course, it’s possible that there was aggressive behaviour prior to age 35 that simply wasn’t detected, but there is no evidence for this.
[86] In my view, the age attenuation opinion evidence proffered by Dr. Klassen must be accorded limited weight in this case. It relies on statistical evidence that is not connected to Mr. Letlow. There is no evidence specific to Mr. Letlow that he can be rehabilitated within a specific period of time. In contrast, his criminal history, repeated non-compliance with court orders, failure to internalize any relapse prevention, and, significantly, the increasing violence in his offending, point to the opposite conclusion: see R. v. Higginbottom, supra, para. 26; R. v. Charbonneau, 2012 ONCA 282, [2012] O.J. No. 1865, at para. 3.
[87] I accept that it is reasonable to expect that age related decline will have some impact on Mr. Letlow’s risk of re-offending. However, the impact cannot be ascertained with any certainty. In Mr. Letlow’s case, the impact of age burnout is grounded in speculation and hope ‑ hope that Mr. Letlow will at some point conform to the statistics, despite his personal history that suggests otherwise.
[88] In R. v. Allen, 2007 ONCA 421, 86 O.R. (3d) 376, Laskin J.A. stated that the test is not some vague hope of managing the risk in the community, but a reasonable possibility of doing so. As stated in R. v. Nicholas, 2017 ONCA 646 at para. 80, citing the trial judge’s reasoning in that case at paras. 40-41:
There must be evidence of treatability that is more than a mere expression of hope and that indicates that the specific offender can be meaningfully treated. An offender's amenability to treatment and the prospects for the success of treatment in reducing or containing the offender's risk of re-offending are critical factors.
[89] I return to the critical issue, that is, whether, on the totality of the evidence, there is a reasonable expectation that a lesser measure than an indeterminate sentence will adequately protect the public. While all the objectives of sentencing and sentencing principles must be considered, it is the protection of the public that is the enhanced objective for those offenders designated as dangerous: see Boutilier, supra, at paras. 56-57. In this case, the sentencing principles are informed by a deficit of mitigating factors and preponderance of aggravating factors, all of which have been reviewed. Further, the Court of Appeal as early as December 21, 2006 expressed doubt that Mr. Letlow was capable of rehabilitation. The only evidence that suggests that Mr. Letlow will be less of a threat in the future is the statistical testing that supports age attenuation. When this evidence is measured against his personal history, I have no reasonable expectation that the public can be adequately protected from Mr. Letlow by a measure less than an indeterminate sentence. As discussed, Mr. Letlow’s crimes of violence have become more serious over time. He has had extensive treatment while in custody and has proven incapable of implementing that treatment. He has consistently failed to comply with orders of supervision, and then attempts to minimize his non-compliance and his criminal conduct overall. It would be speculative and unduly hopeful to conclude that Mr. Letlow will meaningfully engage in the anti-relapse element of treatment, or submit to supervision, given his lengthy and consistent pattern of failing to implement his treatment and breaching supervisory conditions.
Disposition
[90] For the reasons set out above, the Crown application is granted. All the Counts upon which Mr. Letlow has been found guilty are serious personal injury offences. Mr. Letlow is found to be a Dangerous Offender, and he is sentenced to concurrent indeterminate terms on each Count.
[91] In accordance with s. 760 of the Criminal Code I direct the Office of the Crown Attorney to forward all transcripts of the evidence on these proceedings, all material filed on this application, these reasons and a transcript of the trial of Mr. Letlow to the Correctional Service of Canada.
[92] I further order the taking of samples of bodily substances for the purpose of DNA analysis pursuant to s. 487.051(1) of the Criminal Code; an order pursuant to s. 109 of the Criminal Code prohibiting Mr. Letlow from possessing any weapon for life; an order pursuant to s. 743.21 of the Criminal Code prohibiting Mr. Letlow from contacting R.H. while in custody; and an order pursuant to s. 490.012 requiring Mr. Letlow to comply with the provisions of the Sex Offender Information Registry Act, S.C. 2004, c. 10 for life.
Croll J.
Released: April 4, 2018
COURT FILE NO.: CR/15/70000/5080000
DATE: 20180404
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and -
TREVOR LETLOW
Respondent
REASONS FOR SENTENCE
Croll J.
Released: April 4, 2018