COURT FILE NO.: 13-R2319

DATE: 2018/06/15

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Nabil Benhsaien

John Semenoff, for the Crown

Lorne Goldstein, for the offender

HEARD: May 10, October 16, 18-20, 23-26, 2017; Written Submissions received from Mr. Benhsaien January 4, 29, March 5, 27, April 26, May 16, 28 and June 8, 2018; application for Fresh Assessment of the Offender dated December 8, 2017, Crown response received January 12, 2018, Applicant’s reply received January 18, 2018, argument heard and decided January 26, 2018; further written submissions by counsel regarding credit for pre-sentence custody received May 22 and 28, 2018

DECISION RESPECTING AN APPLICATION BY THE ATTORNEY GENERAL FOR ONTARIO TO HAVE NABIL BENHSAIEN DECLARED A DANGEROUS OFFENDER

C.D.A. McKINNON, J.

Procedural History

[1] This case has followed a somewhat torturous path leading to this decision.

[2] On October 22, 2013, Mr. Benhsaien was arrested and charged with numerous serious crimes involving five women. The case arrived in this court on December 5, 2014, following a preliminary inquiry in the Ontario Court of Justice. From his arrest to the commencement of trial, his lawyer had been Joseph Addelman. A four week judge and jury trial was scheduled to commence January 4, 2016, with pre-trial motions scheduled to be heard December 8 to 11, 2015.

[3] At the commencement of the pre-trial motions, the offender discharged Mr. Addelman as his counsel whereupon the court immediately appointed Mr. Addelman to act as amicus curiae pursuant to the provisions of s. 486.3 of the Criminal Code. Pre-trial motions continued until December 11, 2015. Decisions on the motions were given orally over the course of the four days. The offender’s trial commenced on January 4, 2016 and on January 21, 2016 the jury convicted him of aggravated assault and assault with a weapon with respect to four of the five women. He was found guilty of assault with a weapon with respect to the fifth woman. He was also found guilty of three counts of carrying a weapon, which counts were stayed by the Crown.

[4] Following the findings of guilt, the Crown moved to seek an Assessment Order pursuant to part 24 of the Criminal Code. The offender retained Ian Carter to represent him on that application, scheduled to be heard on May 10, 2016. On that day, Mr. Carter was removed as counsel of record. The offender wished to represent himself. The hearing proceeded for a full day at the end of which an Order was made that the offender be assessed by Dr. Mark Pearce. Dates were set for the Dangerous Offender hearing for three weeks commencing October 16, 2017.

[5] For the hearing itself, the offender retained Lorne Goldstein. Notwithstanding Mr. Goldstein’s retainer, at this conclusion of the hearing the offender sought and was given permission to submit written argument on his own behalf. The offender has submitted an unremitting number of submissions, which became repetitive. I directed that final submissions be received by May 6, 2018. Notwithstanding that direction, the offender has continued to file lengthy written submissions on a continuing basis, the last being received on June 8, 2018.

[6] Following the convictions by the jury and following the Dangerous Offender hearing, Mr. Goldstein brought an application before me to have the offender assessed to determine whether he might be deemed not criminally responsible at the time the offences occurred. Material was filed in support and in opposition of that application and argument was heard and evidence given by the offender on January 26, 2018, at which time the application was summarily dismissed.

The Index Offences

[7] On November 29, 2010, in the early afternoon, Ms. Leanne Zehr was walking on Bay Street in the City of Ottawa with two bags of laundry. She noticed a man walking on the other side of the street who appeared disgruntled. The man was a stranger to her. She heard him cross the street and within a minute or so she was struck on the back of the head with a bag that the man was carrying. There was a hard object in the bag. She turned and they looked at each other for a few seconds. The man laughed and then ran off down Bay Street. She suffered a large, painful lump on her head.

[8] On December 11, 2010, Marina Kotchetova was walking alone in the Parkdale area of Ottawa at about 1:00 p.m. near her residence on Spencer Street when she received a very strong hit from behind to the back of her head. She took a moment to compose herself and saw a man and nobody else in the area. The man was running away from her and holding something in his hand that appeared to be a hammer. The man was a stranger to her. She was bleeding from the back of her head. The wound required medical attention and she was diagnosed with a concussion.

[9] On the same day at approximately 1:30 p.m., Lynn Urquhart was walking home from the Bayview O-Train Station, walking eastbound on Scott Street in the City of Ottawa. She was alone with no one else in the area. She was carrying groceries in both hands when suddenly she felt a very sharp blow to the back of her head and began bleeding. She looked around and saw a man running away. The man was a stranger to her.

[10] On January 4, 2011, France Campeau was walking home at about 4:00 p.m. on Gilmore Street between Percy and Bay Street in the City of Ottawa. All of a sudden she heard footsteps close behind her and was struck in the back of the head. She began bleeding. She saw the attacker run down Bay Street into the snow. A witness chased the man through a backyard, grappled with him, and retrieved a sweater from him which was subsequently handed over to the police. The object with which she was hit was also recovered. The object was a roofing hammer.

[11] On October 22, 2013, almost three years following the attack on Ms. Campeau, Katherine Wallace was walking from the Bayview O-Train Station in the City of Ottawa at approximately 2:00 p.m. She proceeded onto Scott Street then to Bayview Avenue. She was alone. As she walked on the street, a man quickly approached her from behind and struck her once with a hammer to the back of her head. Her attacker ran away and dropped the hammer. He picked it up then threw it away again. Ms. Wallace was bleeding and required stiches. She had a concussion. The hammer was recovered by police.

[12] DNA was collected from the hammer that had struck Ms. Campeau and the sweater taken from the stranger. DNA was also collected from the hammer which was retrieved after the attack on Ms. Wallace. The DNA from the three items perfectly matched the sample taken by warrant from the offender following his arrest.

[13] With respect to the assault on Katherine Wallace, in a video retrieved by OC Transpo of the bus from which she exited, the offender is also seen exiting. At trial, the offender admitted he was the person in the video but denied that he was person who attacked Ms. Wallace.

[14] The sole issue at trial was identification.

[15] Given the facts of these attacks, I permitted count to count similar fact evidence to be considered by the jury. It came as no surprise that the offender was convicted of all charges. The case against him was overwhelming.

The Offender’s Past Crimes

[16] The offender was convicted of possession of marijuana on July 18, 2003 and placed on probation for 12 months. He had originally been charged with trafficking in marijuana.

[17] Between July 18, 2003 and December 1, 2008, the offender breached his probation and was eventually convicted of three counts of failing to comply with his recognizance, two counts of failing to comply with his probation order and three counts of failing to attend court. In his meetings with Dr. Pearce the offender reported that he had been “conditionally discharged” and placed on probation for 12 months, and that this was the sole charge on his entire criminal record to which he ever pled guilty. He admitted to Dr. Pearce that he had sold marijuana for just over two days because he was short of funds. After being released from custody he moved to Ottawa and was unable to comply with requirements imposed upon him. There is an outstanding warrant for his arrest in the Province of Manitoba.

[18] On June 3, 2005 in Ottawa, Mr. Benhsaien was convicted of two counts of mischief. His sentence was suspended and he was ordered to keep the peace for 12 months. Mr. Benhsaien informed Dr. Pearce that he paid $200 in restitution after being charged with fraudulently using a credit card.

[19] On February 17, 2010, the offender exited the Future Shop store in Ottawa and set off an alarm and ran away. At his trial on June 17, 2011, the trial judge disbelieved his evidence and concluded that the offender had stolen two X-boxes from the store and convicted the offender. The offender was given a conditional discharge on convictions for theft and breach of recognizance and placed on probation. The offender continued to assert his innocence when asked about the offences by Dr. Pearce.

[20] On December 28, 2010, the offender entered The Bay store in Ottawa, concealed a jacket, and left the store. At the time he was on bail. He served 17 days of pre-sentence custody. He was convicted on April 18, 2012 of theft and breach of recognizance and given a 13 day custodial sentence. The trial judge disbelieved the offender’s explanation and informed him that he was blaming everybody else and that he should “look in the mirror at himself.”

[21] On February 23, 2011, a private detective working at the Metro Store in Ottawa observed the offender acting suspiciously, placing in a basket some muffins, eight hamburger buns, frozen hamburgers and two bottles of pop. He placed all these items in his backpack and left the store. He was convicted on February 14, 2012. He denied shoplifting. The trial judge disbelieved him. The offender was given credit for 5 days of pre-sentence custody and fined $100.00. When asked by Dr. Pearce about the facts the offender simply stated that he had never shoplifted intentionally and that the judge chose to believe the security officer.

[22] On July 6, 2011, the offender stole cough and cold and pain relief medication from Shopper’s Drug Mart. He was verbally abusive to the loss prevention officer and police had to attend to restrain him. One officer was kicked in the shin. At his trial on June 11, 2012, the trial judge disbelieved the offender and convicted him, commenting that the offender had “an addiction problem”. The offender denied the shoplifting when interviewed by Dr. Pearce. He was also convicted of two counts of failing to comply with his recognizance and probation order. He served nine days of pre-sentence custody and was fined $500 and again placed on probation for 12 months.

[23] On October 6, 2011, an employee of the LCBO located at 275 Rideau Street in Ottawa observed the offender take a bottle of whiskey, conceal it, and leave the store without paying. He was convicted for this offence on August 7, 2012, including two counts of failing to comply with a recognizance. He served 60 days of pre-sentence custody and was given a further 12 day custodial sentence. When the loss prevention officer called the police to the store, the offender was verbally abusive with him and the officers were required to wear a “spit hood”. The trial judge noted that none of the offender’s evidence made any sense whatsoever. During his bail hearing on those charges, he blamed his brother for his involvement because his brother owed him money. After being convicted, he told the trial judge that that would be the last theft charge he would ever have. He continued to deny his involvement with these offences in his interview with Dr. Pearce.

[24] On April 15, 2013, the offender was observed by Ottawa Police acting suspiciously involving drugs. He was searched and found to be in possession of seven dime bags of marijuana. He was on probation at the time. At his trial on September 18, 2014, he claimed that someone had put them in his pocket without his knowledge. He was convicted and given a suspended sentence and one day probation, and on the second charge of breach of recognizance was credited with 20 days of pre-sentence custody, together with a one day custodial sentence. He informed Dr. Pearce that he possessed the marijuana but the police search was illegal.

[25] On October 1, 2013, the offender was walking in the west end of Ottawa near Frank Ryan Park and slashed two car tires with a knife. A witness followed him and the offender exposed his genitals to the witness. He was charged with two counts of mischief and one count of indecent exposure. At his trial on April 21, 2015, he was again disbelieved by the trial judge. Following conviction, the offender was referred for a Mental Health Assessment which will be referred to later in these reasons. The offender was ultimately sentenced to 45 days of pre-sentence custody and given a suspended sentence.

[26] When interview by Dr. Pearce, he denied the slashing of tires and the indecent exposure.

Victim Impact Evidence

[27] Victim impact statements were filed on the index offences. It is self-evident from the victim impact statements and from their evidence at trial that the assaults on Ms. Zehr, Ms. Kotchetova, Ms. Urquhart, Ms. Campeau and Ms. Wallace have had a profound impact on each of these women, which will continue. Almost all of these women suffered a significant loss to their personal and communal security, impacting their daily lives and the lives of those around them. In addition to the physical harm to these women, generally being open wounds and concussions, these women have faced significant anxiety and have curtailed their activities in the community as a result.

Leanne Zehr

[28] Ms. Zehr was the only victim who did not file a victim impact statement, but at trial she testified that the bump on her head was a large goose egg, two-thirds the size of her hand. She had a small amount of blood which did not require a Band-Aid. She suffered from headaches which lasted for a week and a half and now suffers from anxiety, although she allowed that there were other ongoing issues in her life which contributed to her anxiety.

Marina Kotchetova

[29] Ms. Kotchetova cannot rid herself of the emotional bruises resulting from the attack. She found herself confused and lacked confidence. Following the attack she had to postpone a planned trip to Russia. She has a phobia of being beaten. She vomits if she sees a hammer. She must be very careful skating or walking on slippery surfaces because she fears another concussion. For three months following the attack, she was extremely dizzy and had difficulty keeping her balance. She had constant ringing in her ears and had to purchase a hearing aid. She was absent-minded, forgetful and was unable to concentrate. She experiences bad headaches up to the present time. She fears for her security and does not wish to see the offender ever again.

Lynn Urquhart

[30] Ms. Urquhart suffered an open bleeding wound that required emergency treatment. She was examined and given three stitches which were later removed, but the painful lump remained on her head for some time. She still feels the lump on her head. She was unable to wear anything on her head and because it was winter it greatly curtailed her activities. She has frequent headaches and permanent ringing in her ears. She had an MRI which did not show anything unusual. She went for a hearing test which indicated hearing loss which could be attributable to a blow to the head. She experienced fatigue, insomnia, depression and anxiety and was prescribed anti-anxiety and sleeping medication. She was in shock for some time. The assault also affected other persons in her life. Many could not understand why she felt so depressed and withdrawn. She fears the offender.

France Campeau

[31] Ms. Campeau feared going outside following the attack. She was constantly looking behind her. She would switch sides of the street and was squeamish if anyone approached. These feelings took a long time to get over. She still frequently looks behind her and has irrational beliefs that someone might grab her and hit her head. She fears walking which she used to enjoy doing. After the attack, she was taken to hospital in an ambulance and required three stitches to her head. A CT Scan confirmed that there was no other damage. She fears the offender.

Katherine Wallace

[32] Ms. Wallace has been severely impacted by the attack. To merely leave her house is a struggle. She spends up to ten minutes talking to herself to prepare to leave her house which causes her to be often late for appointments. It took almost a year before she was able to go anywhere alone. She had to rely on friends and family to get around. She has not been able to date since the attack. She finds it difficult to trust people, especially men, and has lost friendships because of the attack. She remains anxious and must take medicine to control her anxiety. It has been difficult for her to continue in school because of her constant anxiety. Following the attack, she was brought to hospital where she was given stitches and told she had a concussion. Since the attack, she has had headaches that have lasted days. Her ability to concentrate and focus has never been the same. She has a scar on her head where hair will not grow. She had to pay for countless cab rides following the attack, which continues to be a heavy expense. She fears the offender.

The Evidence of Abdessaad (Ben) Benhsaien

[33] Ben Benhsaien is the older brother of the offender. He is a college professor. He has both Master’s and Doctorate degrees in Nanophotonics, which involves the study of light. He studied for a time in Winnipeg. He explained that his parents are alive and living in Morocco. His mother is 65 and his father is 79. Ben is the eldest of five siblings. The eldest sister Lamia resides in Morocco, and is married with two children. The next eldest sister Salima lives in Gatineau and runs a daycare center. She is married with two sons. The youngest sister Hanae resides in the United States is married and lives in Florida.

[34] Ben sponsored the offender to Canada in November 1998. Ben testified that he owes the government $30,000 as a result of his sponsorship of the offender. He also paid for the offender’s English training in Morocco prior to his coming to Canada. He fully expected the offender to be successful and enrolled him in electrical engineering at Carleton University. While the offender was attending Carleton, Ben was required to go Palo Alto, California to pursue employment, after which he then moved to Winnipeg. He learned that the offender had left Carleton, was on welfare, holding many different jobs and taking drugs. This was very different from the initial time in Canada for the offender, when he held a successful job at the airport and pursued his studies with diligence.

[35] At one point, Ben had the offender move to Winnipeg to be with him, but the offender was constantly engaged in drugs. He even got into a fight with other drug dealers and was injured. He sent him to a psychiatrist, without success. Finally, the offender returned to Ottawa. Every time Ben sees the offender, the offender asks him for money. He also understands that his sister Salima has also helped the offender financially and morally.

[36] While in Winnipeg for six months there was one occasion where the offender stole $300 USD from Ben’s wallet. When confronted, the offender told Ben he would have to fight him to get it and then left the residence with the money.

[37] The offender returned to Morocco from December 2012 until March, 2013 during which time he married. The marriage was arranged. Upon the offender’s return to Canada, his wife was supposed to join him but did not. Ben paid the airfare for the offender to go to Morocco in order to marry.

[38] Ben testified that he believed his younger brother was his mother’s favourite and that he was very spoiled in Morocco, but otherwise well-adjusted and progressing satisfactorily. Ben believes that the best option for the offender is for him to return to Morocco where he believes the environment is better suited to avoid involvement in drugs.

Sister Salima’s Observations

[39] The offender’s sister Salima was interviewed. She informed the police that the offender had generally ceased contact with his siblings from about 2007 to 2010. He was angry towards everyone and felt that no one would help him. He was demanding money from his parents. When he initially came to Canada he had been doing well, attending university and working at the airport. When brother Ben left Canada to go to Palo Alto, California, the offender began to reside on his own and did not fare well. He demanded money from his parents and they ended up providing him with $2,000-$3,000. After being arrested on the index offences, Salima visited him in jail. He denied the offences. She believed that if he committed the offences, he must have a mental problem.

[40] The offender never had any problems living in Morocco. He was a student and had friends. His parents indulged him. He suffered from asthma and if his demands were not granted he would begin to cry and precipitate an asthma attack. His parents never told him “no”. The family relocated to a different city to reduce the humidity so that he would avoid asthma attacks. Generally, he was very happy in Morocco and was a very good student.

[41] While in Canada, she believed that he was using drugs although he denied that he was. His conversation had changed. He felt he was a victim of Canada’s problems. He moved many times and had problems at each place he lived. He got along well with Salima’s husband and children. She believed that he might be bipolar. He was in conflict with himself and could not accept reality.

The Evidence of Dr. Mark Pearce

[42] Dr. Pearce was directed by the court to prepare a forensic psychiatric evaluation of the offender. Dr. Pearce is eminently qualified to do so. Since graduating as a doctor from the University of British Columbia in Vancouver, Dr. Pearce pursued his psychiatric residency at the University of Toronto. He became the Chief Psychiatric Resident at St. Michael’s Hospital in 2004, was Senior Resident of the Psychiatric Outreach Program of the University of Toronto between 2004 to 2007, and Senior Resident of the Law and Mental Health Program at the Centre for Addictions and Mental Health (“CAMH”) in Toronto. He has been the forensic psychiatrist for the Ontario Shores Centre for Mental Health Services since 2007, and is a forensic psychiatric consultant for the Peterborough Youth Services and an Assistant Professor at the Department of Psychiatry at the University of Toronto. He is also an Examiner in Psychiatry for the Royal College of Physicians and Surgeons of Canada. He is the recipient of a number of awards, including Best Resident in the Department of Psychiatry for the years 2006 and 2007.

[43] He is a member of the American Academy of Psychiatry and the Law, the American Psychiatric Association, the Canadian Academy of Psychiatry and the Law, the Canadian Psychiatry Association and the Ontario Medical Association. He has a number of peer reviewed publications and has lectured widely. Further details with respect to his expertise can be found in his curriculum vitae which was filed as an exhibit at the hearing.

[44] Dr. Pearce met with the offender on two occasions, on July 6, 2016 and July 28, 2016 at CAMH. The interviews lasted for a total of approximately six hours. The offender was cautioned that the interviews would not be held in confidence and agreed to proceed on that basis.

[45] Dr. Pearce’s report, as is the case in these applications, is highly detailed and I do not intend to replicate it in these reasons. I only intend to refer to certain portions of his findings.

[46] The offender spoke in positive terms about his mother and father. He believed he was “supposedly divorced” from the woman he married in Morocco. He told Dr. Pearce that he is closest to his sister Salima who lives in Gatineau and who has assisted him on various occasions.

[47] He told Dr. Pearce he felt jail had taught him a lot about how to keep in shape, how to keep relaxed, and believed that if he could simply get subsidized housing and employment he would pose no threat to society.

[48] He acknowledged that his brother Ben assisted him. He attended Carleton University for two years in an engineering program but did not do well. He started drinking and smoking marijuana and kept running out of money and finally quit university because he did not have the marks to continue.

[49] In 2012, he attended trade school studying to be a construction worker. He completed his first year then dropped out because of problems with criminal charges.

[50] He has changed residences on a host of occasions and has been homeless for numerous months and been supported by Ontario Works. He acknowledges that he owes about $20,000 to the Ontario Social Assistance Plan.

[51] He has had numerous sexual partners which he described as being “20, 30, or 40”. With respect to the woman he married in Morocco, he continued to have contact with her until he was jailed. He took no formal steps to sponsor her to come to Canada. He does not believe she is aware of the index offences. He believes that his lack of funds has interfered with his ability to have a full time girlfriend.

[52] The offender denied problems with drugs but it is clear from all of the evidence that the offender, prior to being brought into custody on the index offences, had serious problems with drugs and they have affected his life negatively. Certainly, the time spent in Winnipeg is indicative of this fact. The offender admitted to Dr. Pearce that he sold drugs in Winnipeg because he was homeless and unemployed.

[53] When Dr. Pearce asked about the index offences, the offender blamed his sister Salima for not welcoming him into her home. Had she done that, he would not have had to “hustle for money every day” and encounter the housing difficulties that he did.

[54] When asked about the jury’s finding of fact, he stated “You can say that those facts exist, but that attack must be deemed as self-defence.” He further stated, “If you believe I did attack people, then the cause of those attacks is society.” I shall have further to say about the offender’s characterization of the attacks as being justified as self-defence later in these reasons.

[55] With respect to his time in custody he has spent the vast majority of it in segregation at his own request because, as he stated to Dr. Pearce, “I don’t belong in the jail culture.” He also told Dr. Pearce, “I am respected there and I know exactly how to address getting my rights.”

[56] In discussing his problems in society, he highlighted the fact that his family abandoned him, that he had difficulties with housing, obtaining identification, and with his union. He told Dr. Pearce he was hoping for a suspended sentence on these charges because at the time of the interviews, he was 40 years old and believed he had more insight into his situation and that if Dr. Pearce could recommend a housing supplement for him, he would pose no danger to society.

[57] Dr. Pearce found that there is no evidence of psychosis, although paranoid ideation was evident during certain portions of the interviews. The offender had low to low average intellectual ability.

Previous Psychiatric Assessment of Dr. Kunjukrishnan

[58] Following the offender’s conviction in April, 2015 for slashing tires and indecently exposing himself, the trial judge referred him for a mental health assessment, which was undertaken by Dr. Kunjukrishnan. Dr. Kunjukrishnan is a highly respected forensic psychiatrist in Ottawa. The offender was assessed on February 19, 2015.

[59] The offender denied the offences, notwithstanding the convictions. He disclosed housing difficulties and having to stay at a hostel. He told Dr. Kunjukrishnan that he had previously been assessed at the Royal Ottawa in the early 2000s, although that could not be confirmed. He denied ever having been diagnosed with a mental disorder. He was medically healthy. He felt nobody was protecting him. He was not getting along with his fellow inmates and was in segregation in a shared cell.

[60] He denied having psychotic symptoms. He admitted drinking a beer and that he had used marijuana, but stopped smoking in the year 2011 and had not used it since. He denied ever abusing alcohol or drugs.

[61] He admitted to anger management problems in 2013 and being impatient, irritable and easily frustrated. He admitted that he was facing five assault charges between the years 2010 and 2013. He complained of the fact that he had lost all his identification documents, he was trying to get them back and that it took him a few years in order to do that.

[62] He spoke about his siblings, his parents, his coming to Ottawa, his moving to Winnipeg, his going to Morocco in order to marry and that he had no hobbies.

[63] Dr. Kunjukrishnan observed that the offender suffered from mild anxiety and mild depression relating to being in jail, ongoing legal problems, separation from his wife and lack of any social support, and that the offender tended to project blame on external sources such as the community at large, the criminal justice system and the Immigration Department for the problems he was facing in the community. His memory, orientation, attention and concentration were all intact. He was of average intelligence and had some insight into his emotional problems.

[64] Dr. Kunjukrishnan diagnosed the offender as having “an adjustment disorder with anxious and depressed mood, secondary to being in jail, legal problems, separation from wife and difficulty in adjusting to the community; impulse control disorder/anger management problems and anti-social personality traits/disorder.”

[65] Dr. Kunjukrishnan found that the offender was fit to stand trial, that he understood the role of defence counsel, Crown counsel, the role of the judge, the meaning of an oath and was found capable of communicating meaningfully with defence counsel.

[66] As to criminal responsibility, Dr. Kunjukrishnan found that there was no evidence to indicate that the offender was suffering from any major psychiatric illnesses prior to the alleged offences, nor any evidence to indicate that the offender’s behaviour around the time of the alleged offences would fall within the provisions of s. 16 of the Criminal Code.

[67] This assessment of Dr. Kunjukrishnan takes on added significance when considering that following the dangerous offender hearing an application was brought to have the offender assessed as to whether he might not be criminally responsible, as noted previously in these reasons.

Additional Information Obtained by Dr. Pearce

[68] Dr. Pearce reviewed the offender’s driving record with the Ministry of Transportation. He was first licensed in 1996. He listed eight different residences between 1999 to 2013. His license was suspended for several years during the 2000’s.

[69] He reviewed the offender’s Canada Revenue Agency records. The offender filed annual returns from 2010 to 2013. Older information was redacted. He worked for various employers, though seemingly earned very little each year.

[70] Dr. Pearce interviewed the offender’s former employer, Handyman Personnel. The offender worked approximately 159 days during 2008, just over 100 days in 2009, 45 days in 2010, 35 days in 2011, 27 days in 2012 and 26 days in 2013. He earned just over $31,000 during that period. The employer, Mr. Trudel, indicated that the offender was considered to have a good work ethic and was unaware of any drug or alcohol problems.

[71] The Ontario Works file pertaining to the offender was produced in the course of the hearing. It is voluminous and indicates that the offender had highly unstable housing and income. He moved residences numerous times and he stayed at shelters. He was given a non-trespass notice from the Shepherds of Good Hope because of disruptions that he had created. He also was given a non-trespass notice from a bank. He had accused the bank of stealing $200,000 from him, which was patently false. He was given a non-trespass order from the welfare office lasting about five years.

[72] Before arriving at his assessment, Dr. Pearce was provided with a 24 page handwritten letter by the offender where he discusses various things, some of which Dr. Pearce found difficult to decipher. Dr. Pearce believed that what the offender was attempting to convey was that he no longer suffers from anger management nor does he have an impulse control disorder. He complained that amicus curiae at trial did not advise him that he could have claimed the defence of self-defence. He asserts that detention alone has fixed his problems and that he should be released.

[73] I pause to note that in the offender’s numerous, often lengthy submissions to me, I have found them very difficult to decipher, although a general pattern emerges which I shall refer to later in these reasons. Suffice to say, he believes he is entitled to be released today.

Dr. Pearce’s Psychiatric Opinions and Recommendations

[74] Of note, at the time of Dr. Pearce’s assessment, the offender was not believed to be certifiable according to the Mental Health Act of Ontario. The offender presented as capable of consenting to, or refusing consent for, psychiatric treatment.

[75] Dr. Pearce did not find that the offender suffered from any major mental illness such as schizophrenia or bipolar affective disorder. “He may have experienced certain depressive symptoms at times, though this was in response to stressors; an adjustment disorder would appear to be the most appropriate diagnosis.”

[76] Dr. Pearce noted that other clinicians have wondered whether the offender has presented with psychotic symptoms, but in Dr. Pearce’s view this is very unlikely. “Beliefs that were possibly delusional were more likely cognitive distortions and a manifestation of his personality structure.”

[77] Dr. Pearce believed that the offender’s self-report about the extent of his substance abuse was inconsistent and unreliable. He believed that the offender had “at least a mild substance abuse disorder.”

[78] Dr. Pearce found that there was insufficient evidence to diagnose a conduct disorder while being spoiled by his parents in Morocco. He had numerous friends and was happy but struggled after immigrating to Canada. He was unable to complete his post-secondary studies and ended up selling drugs and incurring criminal charges. While he worked regularly some years, he struggled in maintaining housing and full time employment. He was unable to find a partner and he viewed himself as superior to women in Ottawa. He incurred criminal charges primarily related to petty thefts. He failed to comply with judicially imposed conditions and was homeless at times. He experienced other stressors and was seemingly socially isolated.

[79] The offender presented as “grandiose, self-involved, callous and lacking in empathy. He cannot accept responsibility for his actions and he has a significant temper, as evidenced by the index offences and other documented behaviour. At times, paranoia has surfaced as well.”

[80] Dr. Pearce goes on to state:

“Interestingly, this gentleman, who had no documented history of assaultive behaviour prior to 2010, started violently assaulting female strangers; this is quite uncommon. In this case, there is little doubt in my mind that this was his disturbed way of coping with stressors and venting his anger with regards to what he viewed (and views) as societal “problems”. Unfortunately, given his inability to acknowledge his actions, it is difficult to identify other criminogenic variables to target in treatment, such as a substance use disorder, impulsivity (it is not clear if or for how long he planned these attacks) or misogynistic attitudes (perhaps he chose female victims as he simply believed they would make easier targets). Following his conviction, he grossly minimized the consequences of the assaults and he presented as remorseless.

Overall in my opinion, this gentleman suffers from a mixed personality disorder, technically called a personality disorder not otherwise specified (NOS), with narcissistic, antisocial and paranoid personality traits.”

Individuals with narcissistic personality traits present with a grandiose sense of self-importance, a sense of entitlement, as somewhat interpersonally exploitive, and lacking empathy.

Individuals with antisocial personality traits present with a pattern of self-centeredness and the willingness to contravene the rights of others, a failure to conform to social norms with respect to lawful behaviour, deceitfulness, impulsivity and a failure to plan ahead, irritability and aggressiveness, irresponsibility and a lack of remorse.

Individuals with paranoid personality traits appeared guarded, tense and hyper-vigilant and they constantly scan their environment for clues of possible attack, deception or betrayal. They often find “evidence” of such malevolence by misinterpreting benign events as demeaning or threatening. In response to perceived or actual insults or betrayals, these individuals over-react, quickly becoming excessively angry and responding with counter-attacking behaviour.

They are unable to forgive or forget such incidents, and often bear long-term grudges against their supposed betrayers; some individuals with these traits are quite litigious.

In conclusion, Mr. Benhsaien has likely abused alcohol and/or cannabis. He suffers from a mixed personality disorder with narcissistic, antisocial and paranoid personality traits.”

Dr. Pearce’s Risk Assessment

[81] Dr. Pearce assessed the offender using the Psychopathy Checklist-Revised (PCL-R), the Violence Risk Appraisal Guide (VRAG) and the Static-99R.

[82] The PCL-R samples 20 domains of personality and lifestyle function, each of which may be scored 0, 1, or 2, thus rendering a total score on from 0 to 40 with 40 out of 40 points representing the prototypical psychopath. Scores above 25 are felt to represent particularly significant psychopathy. The offender scored 18 out of a possible 40 points placing him in the 32nd percentile with respect to a reference sample of North American male inmates. A score of 18 falls far short of that required to diagnose psychopathy. The absence of psychopathy is typically considered a positive prognostic indicator.

[83] Dr. Pearce scored the offender at +10 on the VRAG, placing him in bin 6. There are 9 ascending groupings or bins. Plus 10 is a moderate to high score and suggestive to a moderate to high risk of violent reoffence. Similar scoring individuals recidivated violently at a rate of 58 percent over ten years of opportunity in the community. A score of +10 places the offender at the 74th percentile with the respect to the developmental sample.

[84] Dr. Pearce scored the offender at 24 out of a possible 40 points on the HCR-20, assuming a near immediate release from custody without conditions. This is a moderate to high score and suggestive of a moderate to high risk of future violent behaviour, absent significant interventions. Dr. Pearce noted that the offender had gone many years without committing acts of violence and assaulted his first victim in 2010. He had accumulated four victims by January 4, 2011 when he was almost apprehended.

[85] Dr. Pearce thought that perhaps the fact that the offender was on probation or released on recognizance for some months during 2011 and 2012 provided some respite for the community until October 22, 2013. Thus, while the offender had not been violent for the first 33 years of his life, he has since committed five serious assaults on strangers. Dr. Pearce noted that the offender has not been violent to a significant extent while in custody and concluded that “should he be released without supervision, treatment or support, he may not reoffend for some months at least. Subsequent to that time, however, he may recidivate frequently and severely.”

[86] Dr. Pearce was cross-examined with respect to the risk assessment and allowed that under the VRAG the offender may have been placed in bin 5, but at the same time could have been placed in bin 7. He agreed that even if the offender were placed in bin 7, there was less than half the probability of future violence and if he had been placed in bin 5 the likelihood of a violent act dropped to 35 percent.

[87] Dr. Pearce testified that risk appraisal is a difficult chore, but broadly speaking the PCL-R has been found to be correct in 65 percent of cases and the HCR-20 in 71 percent of cases. This means, for example, in relation to the PCL-R, there is roughly a one third chance of scoring a false positive.

[88] Dr. Pearce asserted that in the final analysis the best indication of future behaviour is past behaviour. Dr. Pearce acknowledged that his assessment of risk was all based on the immediate release of the offender and noted that the offender said he was prepared to take treatment and that no treatment had been provided to the offender since his arrest.

[89] Dr. Pearce was asked what he thought about the offender’s view that he attacked the five women out of a misconception of the defence of self-defence under s. 37 of the Criminal Code. In other words, the offender believed that he was being attacked by society and had the right to defend himself by attacking others. Dr. Pearce described this as a “cognitive distortion”.

[90] Dr. Pearce believed that the offender knew it was wrong to hit people on the head with a hammer but believed that stressors in his life at the time justified the behaviour. The offender requires programs to learn coping skills for these stressors. He also pointed out that because his PCL-R score was low, it translated to 0 on the VRAG scoring scale, which in effect helped him and painted a lower score than what might have been justified in the circumstances. Dr. Pearce was emphatic that he believed that the offender posed a serious danger to the public were he to be immediately released.

[91] Dr. Pearce testified that the personality disorder “not otherwise specified” means that the offender had facets of three separate personality disorders and that there was as many as 10 percent of individuals in the prison population with a personality disorder not otherwise specified.

[92] It was the opinion of Dr. Pearce that the offender met the test of what constituted a dangerous offender as set out in s. 753 of the Criminal Code, which provides:

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…

[93] Taking into account the results of the risk assessment, it is Dr. Pearce’s opinion that the offender is likely to reoffend violently, absent significant interventions if released from custody in the near future. He will likely fail to restrain his behaviour and cause serious physical injury and or severe psychological damage to other persons. His behaviour since 2013 demonstrated a substantial degree of indifference respecting the reasonably foreseeable consequences to others persons of his behaviour and continues to be largely indifferent to the consequences of his behaviour on others from a psychiatric perspective noting, however, that the offender has not received any treatment.

[94] With respect to the offender’s suitability to be placed on a long term supervision order (LTSO), Dr. Pearce found that the offender was at a moderate to high risk of committing another violent offence at least in the near future without constraints. Whether he would be suitable for a 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 subject to a LTSO.

[95] With respect to the offender’s personality disorder, the prognosis for improvement is guarded because treatment for personality disorders is challenging. Dr. Pearce was particularly pessimistic in the case of the offender because of his complete inability to accept any responsibility for his actions and that without some progress in that area Dr. Pearce found it hard to know how likely treatment could precipitate meaningful change. On the other hand, he noted that the offender was not violent for many years and his PCL-R score could suggest reasons for optimism. In addition, violent behaviour would burn out with age, although because the offences occurred when the offender was in his early 30’s it is unclear when age related change might impact upon his risk of violence. Overall, Dr. Pearce found some reasons for pessimism with respect to treating the offender’s personality disorder. However, the offender’s supervision record as reviewed by Dr. Pearce caused him to believe that the offender’s response to prior supervision was a slightly positive prognostic indicator.

[96] Dr. Pearce also noted that there was some reason for hope given the offender’s occupational history. While at times his struggles caused him stress, he managed to maintain gainful employment and received favourable reports for his work ethic. The offender is somewhat isolated and would require support from his siblings who are pro-social members of the community. Dr. Pearce found that there were some reasons for optimism. He stated:

“In summary, and considering the aforenoted factors and the risk assessment, in my opinion the offender would most likely be manageable while subject to a LTSO. It is unclear to me, however, whether he would present an ongoing risk to the community following the expiry of such an Order; this uncertainty is primarily based on his inability to accept any responsibility for his offences and his belief that he only needs to be provided with supportive housing to succeed. The fact of the matter is that this gentleman has many treatment needs (some of which are unknown) and if he continues to fail to acknowledge his shortcomings, as has been the case with almost all of his prior contact with the criminal justice system, the prognosis would appear quite guarded. It is possible that several years in custody will act as a deterrent to future violence but at this point, I am unable to conclude that there is a “reasonable expectation” that his risk to the community will be contained upon the expiry of a LTSO, from a purely psychiatric perspective. However, given risk reducing factors in this case, there is, from my perspective, some possibility of eventual control of the risk.”

[97] Dr. Pearce concluded that should a LTSO be warranted, a treatment plan should be put into place including that he should access and complete a wide variety of programs during a prolonged period of incarceration, including low-intensity substance abuse treatment programming, violence prevention programs, anger management therapy and programs to target anti-social values and attitudes. “Misogynistic values, if present (there is some evidence to suggest same), may need to be targeted.” Individual psychotherapy is recommended together with booster programming to bolster the effects of institutional programs. Routine urine screens should be performed to ensure that the offender remains abstinent from substances of abuse.

[98] The offender should initially reside in a CSC supervised facility to allow for close supervision and initially only be permitted access to the community for treatment programming. If living outside of a CSC facility, parole officers should make regular, unannounced visits to his residence to ensure he is abiding by his conditions. He should not be in possession of a weapon, he should participate in educational upgrading, vocational training or return to work which would assist him with his sense of self and may help reduce the risk of violent recidivism. Supportive housing may be beneficial because he is at increased risk of violence if living a transient lifestyle. The offender’s relationships should be monitored given a history of violence towards women and consideration should be given to electronic monitoring.

The Evidence of the Offender

[99] The offender has given evidence on a number of occasions. He testified for a full day opposing the issuance of an assessment order following his convictions. He testified at length during the course of the dangerous offender hearing. As earlier noted, following the hearing he requested that he be permitted to make submissions to me by way of factums to complement the submissions made by his counsel Mr. Goldstein. With the concurrence of Mr. Goldstein and the Crown, I permitted him to do so. A lengthy submission was made on January 4, 2018. Further lengthy submissions have been made since and finally, I insisted that I would entertain no further submissions in writing from the offender following Friday May 6, 2018. Notwithstanding that position, the offender continues to submit lengthy written submissions with regularity.

[100] There are common themes to all of the offender’s evidence and submissions. The first theme is that the offender has a habit of referring to himself as “the suspect” or “the perpetrator”. He employed this terminology throughout his trial by jury, during his evidence opposing the assessment order, while testifying at the dangerous offender hearing and in his subsequent written submissions. When one considers the context of this terminology, it is clear that “the suspect” or “the perpetrator” is the offender himself. The reason I say this is because throughout the evidence and submissions, the offender describes what motivated the “suspect” or “perpetrator” to do what he did and react to certain stressors as he did. Throughout the submissions the offender described events, places and statements made by others that could only be known to the offender himself and not be known to some third party “suspect” or “perpetrator”.

[101] The second broad theme arising from the evidence and submissions given by the offender is that from time to time he slips into an unambiguous admission that he in fact is “the suspect” or “the perpetrator” being described, and employs the first person “I” in his evidence and submissions.

[102] The slips are too numerous to mention. I shall simply cite three examples. The first can be found at page 44 of the transcript of proceedings on May 10, 2016 when the offender opposed the making of an assessment order. At line 17, he states,

“However, the housing problem that keeps happening to him. That housing problem whereas it started to resolve, it is yet to go through a period of waiting time till I reach you know, the top of the list you know, subsided housing or whatever what it is….”

[103] In this example, the offender refers to himself both in the third person and the first person within the same sentence.

[104] The second example might be found at page 168 of that day’s proceedings where at line 7, he stated,

“It is not unreasonable because he was not able to find rent in those 13 days. It is unreasonable because he was deprived of his right and from his two months’ notice plus plus plus, that put him in that situation. It is not like finding a place in 13 days that is unreasonable. What is unreasonable is putting him in that situation where he has to find a place within certain time before he starts cutting edge, before he starts facing danger…”

[105] A third example is taken from one of the offender’s recent written submissions being “Appendix B” of Part II of his “factum” dated May 16, 2018. At page one of the submissions, the offender writes

“…the problem that the suspect experienced with retrieving identification started shortly after progress started in his life when he joined the Union in October 2008 and had occupied the suspect’s thinking for a period that exceeded two years when the index offences started to happen.”

[106] At page 11 of the same document the offender writes:

“I have never had the intention to hurt anybody and what I meant was to distinguish my case from the cases in which the ultimate goal is hurting others for the sole purpose of seeing them suffer in other words. Being someone whose anger was arising from a lack of secure housing, seeing others suffer wasn’t remedial to my anger….”

[107] In this last example, the offender refers to himself in the first person. There is no doubt whatsoever that all references to “the suspect” in the offender’s evidence and submissions are in fact references to himself.

[108] The record abounds with similar examples.

[109] Dr. Pearce referred to this habit as part of the offender’s “cognitive distortion”. I am not entirely convinced of that assessment. Having personally observed the offender on numerous occasions over the last two and a half years and read his copious submissions I have come to believe that he might be playing a game in order to maintain his right of appeal.

[110] During the dangerous offender hearing, it was revealed that the offender had been contemplating attacking women for a least one year prior to the first attack, although in his written submissions it might have been two years, as previously noted in the quoted extract. During that time, the offender testified that he formed the belief that he was entitled to attack these individuals in self-defence, based upon a misapprehension of the self-defence provisions of s. 37 of the Criminal Code. In short, he believed that society was giving him a raw deal and that he was being attacked by society and its various institutions, including the police. As such, he was entitled to defend himself from these attacks.

[111] In describing his state of mind leading up to the attacks during his testimony at the dangerous offender hearing, the offender testified that the hammer he used was heavy and required “focus, nerves and concentration”. He did not hit with the blade side but rather with the blunt side. He believed this would not result in much harm to these people. It would “cut their skin but not leave a fracture or a concussion”. He testified that “for a year I was in the potential period.” He spoke of the stressors upon him, including the fact that he did not have proper identification and could not open a bank account. These frustrations stayed in his mind “as a defence concept”. The thought would reoccur to him whether he was happy or sad. The problems continued. He spoke about meeting a social worker three or four days before the first attack on Ms. Zehr and his mounting frustration with his inability to resolve his identification issues.

[112] In order to defend himself he attacked women with the hope that the attacks would generate widespread publicity. He hoped that he would not be caught. If he were not, society would continue to be fearful. People would not feel safe in the streets. As such, society would take steps to cure itself. The police would begin to act better. Institutional employees would act more kindly towards people and he would have successfully defended himself against the society that had been so unfair to him.

[113] During his testimony at the dangerous offender hearing the offender took pains to explain that his counsel Mr. Goldstein had convinced him that his understanding of s. 37 was a serious error and that he now understood that the actions undertaken by “the suspect” were wrong and would never be repeated.

[114] I am not prone to disagree with the offender’s evidence in this regard, although I am somewhat troubled by a number of his submissions which essentially reiterate the defence that the offender offered at trial, namely that the perpetrator of the assaults could not be identified.

[115] In other words, I am troubled that while the testimony given by the offender during the dangerous offender hearing seemed to suggest that he was making a complete admission that he was the perpetrator and had learned from the experience, he seems to have taken a step backwards and reasserted that he is not the person who perpetrated the attacks. Having said that, various of the written submissions suggest he is taking responsibility for being the perpetrator for the attacks on these women, although his intent was not to hurt them, but rather to reform society. The many contradictions within the submissions bear witness to the need for therapy.

[116] A third consistent theme arising out of the offender’s evidence and submissions is the manner in which he minimizes of the victims’ injuries and is unable to acknowledge either the physical harm, and certainly not the profound psychological effect of these injuries. This is of significant concern to me.

[117] I do not intend to go further into the evidence or submissions of the offender. Suffice to say, he presents with a cognitive disorder that might be feigned or might be real. Only professional psychiatrists and psychologists can make that determination. As stated, the offender clearly needs therapy.

The NCR Issue

[118] It is properly trained psychiatrists and psychologists who would determine whether the offender was not criminally responsible at the time of the offences, as he sought to assert in his application to be reassessed on January 26, 2018. That application was summarily dismissed, relying on R. v. Robertson, 2006 CarswellONT 9422 in which Justice Grossi of the Ontario Superior Court was asked to substitute a verdict of not criminally responsible for Mr. Robertson some two years after the jury had found him guilty of the offences. Justice Grossi held that he was functus and that only the Court of Appeal could substitute a verdict of not criminally responsible: R v. Irwin, 1977 CanLII 2071 (ON CA), 1977 36 C.C.C. (2d) 1 (O.C.A).

[119] That said, neither Dr. Kunjukrishnan nor Dr. Pearce believe that the offender is not criminally responsible. Speaking for myself, and again acknowledging that I am not a trained psychiatrist or psychologist, but having observed the offender for the past two and a half years, there is no doubt in my mind he is sane. While he may have a cognitive disorder that has already been discussed, he is fully engaged with the court process, knows his rights, knows the function of counsel, knows the case against him, knows the consequences of conviction and is insistent upon asserting his rights.

Is the Offender Dangerous within the meaning of s. 753 of the Criminal Code?

[120] In my view, there can be no doubt whatsoever that the offender has demonstrated a pattern of repetitive behaviour 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 that failure in the future to restrain his behaviour and/or a pattern of persistent aggressive behaviour by the offender showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his behaviour.

[121] The offender had been thinking about attacking women with a hammer for over a year and perhaps two. After his initial attack on Ms. Zehr, on November 29, 2010, which, for the purpose of the application of section 753 may be referred to as “the offence for which the offender has been convicted”, he continued with his attacks on Ms. Kotchetova and Ms. Urquhart on December 11, 2010 then attacked Ms. Campeau on January 4, 2011 and finally with his attack on Ms. Wallace on October 22, 2013. The fact there was a “pattern” is beyond dispute.

[122] As pointed out by Dr. Pearce, the offender was occupied with other legal problems and offences between January 2011 and October 2013, including the slashing of tires and indecent exposure conviction. In addition, he was almost apprehended after his attack on Ms. Campeau and might have been “lying low” prior to his attack on Ms. Wallace.

[123] The attacks in this case were so strikingly similar that I permitted the jury to consider count to count similar fact evidence in their deliberations leading to the convictions. The offences are so strikingly similar that it is likely that the offender, if released immediately, might likely offend in the same way in the future. Given the serious nature of these five attacks, it is more probable than not that the offender will fail to restrain his behaviour if released into the community at this time: R. v. Neve, 1999 ABCA 206, 137 C.C.C. (3d) 1997.

[124] The offender has also exhibited substantial indifference to his victims. He had a conscious but uncaring awareness of causing harm to others occurring over a period of almost three years with the planning occurring for at least a year prior to the initial offence. From the evidence heard at the hearing, it is clearly evident that the offender would have continued to assault other victims had he not been arrested.

[125] In this case, the Crown has proven beyond a reasonable doubt that the offender meets the dangerous offender criteria. The only issue is the appropriate disposition pursuant to this finding. Section 753 (4) of the Criminal Code provides that the court may impose a sentence of detention for an indeterminate period; impose a sentence for the offences for which the offender has been convicted of and order that the offender be subject to a long term supervision order for a period that does not exceed 10 years; or impose a sentence for the offences for which the offender has been convicted.

[126] S. 753 (4.1) of the Code states that the court shall impose a sentence of detention in the penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is reasonable expectation that a lesser measure will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

[127] While the Crown bears the onus of proof beyond a reasonable doubt to establish that an offender meets the dangerous offender criteria, the Crown does not bear this onus of proof in relation to the question of whether there is a reasonable possibility of control in the community: R. v. F.E.D., 2007 ONCA 246, 2007, 222 C.C.C. (3d) 373 (Ont. C.A.) at paras 38-55. The court should impose an indeterminate sentence unless it is satisfied that there is evidence specific to the offender that the offender can be cured or rehabilitated within a determinate period of time. A hope that treatment will be successful or some optimism the offender could be rehabilitated is not a sufficient basis to impose a determinate sentence. The court should not gamble on the safety of the community: R. v. D.V.B., 2010 ONCA 291, 2010 O.J. No. 1577 (O.C.A).

[128] At the same time, in order to properly exercise discretion under s. 753 (4) the sentencing judge must impose the least intrusive sentence required to achieve the primary purpose of the scheme. The current s. 753 (4.1) confers a discretion to apply general sentencing principles more explicitly than did the former scheme. It does so for the benefit of the offender. Nothing in the wording of s. 753 (4.1) removes the obligation incumbent on the sentencing judge to consider all sentencing principles in order to choose a sentence that is for fit for a specific offender. An offender’s moral culpability, the seriousness of the offences, the mitigating factors, are each part of the sentencing process under the dangerous offender scheme and relevant in deciding whether or not a lesser sentence would sufficiently protect the public: R. v. Boutilier, 2017 SCC 64.

[129] To inform his or her decision about the appropriate sentence, a sentencing judge can take into consideration all of the evidence, no matter who adduces it: R. v. Proulx, 2000 SCC 5 at paras 120-121.

[130] The dangerous offender designation criteria are more onerous than the long term offender criteria. In particular, under s. 753 (1), the sentencing judge must be satisfied that “the offender constitutes a threat to the life, safety or physical or mental well-being of other persons”, whereas under s. 753.1 (1), the sentencing judge must merely be satisfied that “there is a substantial risk that the offender will reoffend.” When read properly, s. 753 (1) limits the availability of an indeterminate detention under s. 753 (4) and (4.1) to a narrow group of offenders that are dangerous per se. Therefore it cannot be said that both regimes target the same offenders: Boutilier at para 75.

The Issue of Potential Deportation of the Offender

[131] Evidence was called during the course of the hearing to the effect that once the offender is sentenced, and assuming he is sentenced to a term of longer than two years in the penitentiary, a report will be generated by Immigration officials recommending the deportation of the offender to his home country of Morocco.

[132] In this case, the Crown submits that this court should consider the futility of making a Long Term Supervision Order when there is no evidence that it could be effectual in Morocco. In the event he is deported, Mr. Semenoff submits that Federal Courts have consistently held that the Parole Board must consider whether the offender’s release will pose an undue risk to any society, not just Canadian society: Collins v. Canada, 2012 FC 268, 2012 F.C. 268.

[133] I am persuaded that the consideration of what might happen to an offender who is not a Canadian citizen should not determine the appropriate sentence to be imposed. I find support for this proposition in the decision of Fitch J. in R. v. MacDonald, 2015 BCSC 2088 at para 325 where he stated,

“It is unnecessary for me to determine whether the fact that Mr. MacDonald would likely be deported on his release from custody is a relevant or appropriate consideration on the issue of whether his risk can be managed to an acceptable level in the community. I note this issue was raised, but not resolved in R. v. Paul, 2008 O.J. No. 711 (S.C.J.) at para 40, affirmed 2010 ONCA 696, 262 (C.C.C.) (3d) 490. Without deciding the point, I have proceeded on a footing most favourable to Mr. MacDonald -that the risk of deportation cannot work to the prejudice of the offender who would otherwise be entitled to a long-term offender disposition.”

[134] I agree with Mr. Goldstein’s submissions that the question for this court should be resolved by reference to what is contained in the Criminal Code. The hypothetical whether the offender is deported to another country without supervision should not stand as a bar to the court from fashioning an appropriate sentence. To do so would place the offender in a disadvantaged position, by virtue not only of his conduct, but his of place of birth and immigration status. To impose a greater penalty then might otherwise be appropriate based upon further hypotheticals concerning immigration status would be unfair.

[135] I find additional support for my position from the case of R. v. Pham, 2013 SCC 15, in which our Supreme Court held that immigration consequences could be taken into account as a mitigating factor in fashioning an appropriate sentence, but are not to be used as an aggravating factor. Even so, immigration consequences should not affect what the appropriate sentence must be in an individual case. In my view, Mr. Semenoff is inviting me to consider the immigration consequences as an aggravating factor, and I decline to do so.

Finding

[136] I am persuaded on all of the evidence, including that of the offender himself there is a reasonable possibility of eventual control of the risk that the offender poses in the community, and that he should be designated a long-term offender. In his viva voce testimony and submissions I believe the offender, with the assistance of his counsel Mr. Goldstein, has gained some insight into his cognitive misapprehension of the justification of using violence against individuals as a means of defending himself against the burdens that society has placed upon him. I would also note that it has been almost two years since the offender was assessed by Dr. Pearce, all of which time the offender has been held in custody.

[137] The offender has been held in custody for four and a half years. His institutional history has a few incidents of poor conduct, but nothing of overarching concern. He has been held in protective custody, by his own choice.

[138] The offender is in need of therapy, as set out in the evidence of Dr. Pearce. The evidence called during the hearing establishes that all appropriate therapy will be available to the offender if he is afforded sufficient time in custody.

Credit for Time Served In Custody

[139] The offender was arrested on October 22, 2013 on the index offences. However, he was also at the time serving 45 days in relation to the charges relating to slashing tires and exposing himself. Effectively, he began serving time on the index offences at roughly January 1, 2014 making his time in custody on these offences, 4 1/2 years.

[140] Mr. Semenoff submits that the offender should receive no additional credit for his time spent in custody and that the credit should be on a 1:1 basis, relying on R. v. Summers, 2014 SCC 26, in particular paragraph 79 which indicates that “there will be particularly dangerous offenders who have committed certain serious offences for whom early release and parole are simply not available”, in asserting that the case stands for the proposition that where early release and parole are not available no credit should be extended.

[141] On the other hand, Mr. Goldstein submits that the offender should be given credit at the rate of 1.5:1 stressing that the old regime of granting inmates 2:1 or even greater reflected realities includes the loss of parole and programming and that by capping the enhance credit at 1.5:1, Parliament removed all those factors and determined that 1.5:1 is exactly the same calculation as would be used in determining statutory release.

[142] Mr. Goldstein relies on paragraph 27 of Summers which states that a ratio of 1.5:1 ensures that an offender who is released after serving two-thirds of his sentence serves the same amount of time in jail, whether or not he is subject to pre-sentence detention.

[143] Mr. Semenoff also relied on R. v. M.O., 2016 ONCA 236, in which our Court of Appeal considered a sentence appeal on the issue of enhanced credit in circumstances where the offender might not be eligible for statutory release. On the facts of that case, the Court of Appeal assumed that the Parole Board would require the prisoner to serve his entire sentence in custody because it was likely if released, that the offender would commit an offence causing the death or serious harm to another person before the expiration of his sentence. The Court referred to the appellant’s

“life long, continuous, more recently, increasingly violent criminal conduct, his virtual immediate return to a life of serious, dangerous criminal activity when released March 2010, and the psychiatric opinion of both the Crown and the defence psychiatrists, compelled the conclusion that the appellant is likely to commit further serious offences shortly after his release. Consequently, he is unlikely to be granted any form of release before his warrant expiry date.”

[144] The Court was satisfied that there was no realistic chance that the appellant would be released prior to his warrant expiry date and therefore his enhanced credit for pre-sentence custody could not be justified on the basis of lost opportunity to gain credits towards some early form of release.

[145] Mr. Goldstein points to a number of cases where enhanced credit has been granted by judges of this Court in LTO and DO cases. In R. v. S., 2017 ONSC 6841, Justice Bloom granted enhanced credit at 1.5:1. In R. v. Carrie, 2016 ONSC 3721, Justice Gareau granted enhanced credit at 1.5:1 and in R. v. Ridgeway, 2016 ONSC 4222, Justice Mulligan granted enhanced credit at 1.5:1, all of which decisions post-dated M.O.

[146] In the instant case involving this offender, there is no institutional evidence that he would not be granted statutory release or that he would be detained beyond the statutory release date. He has served his time in protective custody without the benefit of any remedial programs. I am satisfied that the offender should be given credit for his pre-sentence custody and have determined that the appropriate credit should be 1.5:1 which, rounded, allows him a credit of two years and three months.

[147] Using that calculation, Mr. Benhsaien has served the equivalent of six years and nine months in custody, again rounding the time.

Disposition

[148] In my view the appropriate global sentence for these serious offences is 12 years in penitentiary. Applying the credit of six years and nine months, the offender shall be required to spend a further five years and three months in penitentiary. This sentence will afford the offender sufficient time to avail himself of the remedial programs recommended by Dr. Pearce.

[149] Following the time served in the penitentiary, the offender shall be subject to a long-term supervision order for a period of 10 years. The conditions will be those recommended by Dr. Pearce which were referred to earlier in these reasons, subject to whatever variation of those conditions or additional conditions might be imposed by the Canada Parole Board.

[150] In addition, he shall have no contact directly or indirectly with the victims in this case, Leanne Zehr, Marina Kotchetova, Lynn Urquhart, France Campeau, and Katherine Wallace, nor shall he be found within 500 meters of their places of residence or employment.

[151] In accordance with the provisions of s. 109 of the Criminal Code, the offender shall be prohibited from possessing weapons for the remainder of his life.

[152] In accordance with s. 487.055 (1) of the Criminal Code, a sample of the offender’s DNA shall be obtained.

C.D.A. McKinnon J.

Released: June 15, 2018

COURT FILE NO.: 13-R2319

DATE: 2018/06/15

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

NABIL BENHSAIEN

Decision respecting an application by the attorney general for ontario to have NABIL BENHSAIEN declared a dangerous offender

C.D.A. McKinnon J.

Released: June 15, 2018