ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and -
BEVON MARSHALL
Respondent
Robert Fried, for the Applicant
James L. Miglin and Susannah Chung-Alvares, for the Respondent
HEARD at Toronto: February 22, 2018 and October 10-13, 2017
Michael G. Quigley, J.
Reasons for Judgment
Contents
Overview......................................................................................................................................... 2
Background of the Offender......................................................................................................... 3
Evidence and Findings on the 2015 Predicate Offences........................................................... 4
Institutional and Correctional Facilities Evidence..................................................................... 7
Psychiatric Expert Evidence......................................................................................................... 9
(i) Introduction.......................................................................................................................... 9
(ii) Dr. Wilkie’s evidence and opinion.................................................................................. 10
(iii) Dr. Pearce’s review of Dr. Wilkie’s evidence and opinion......................................... 14
(iv) Findings relating to the expert evidence........................................................................ 15
The Dangerous Offender Criteria.............................................................................................. 16
(i) Legislative provisions applicable in this case................................................................. 17
(ii) The question of “pattern” showing a high likelihood of harmful recidivism............... 19
(iii) The question of intractability......................................................................................... 21
Findings on the Dangerous Offender Criteria.......................................................................... 22
(i) Serious personal injury offence....................................................................................... 22
(ii) Character of past offending conduct: the question of pattern...................................... 23
(iii) Is Mr. Marshall’s conduct intractable?.......................................................................... 26
(iv) Conclusion........................................................................................................................ 29
Findings on the Long-Term Offender Criteria......................................................................... 29
Sentence on the index offences............................................................................................. 30
Substantial risk........................................................................................................................ 31
Eventual control in the community....................................................................................... 31
Disposition.................................................................................................................................. 31
Overview
1Bevon Marshall was convicted, together with Sadyk Sadykov, Kervon James and Ryan Barton, of aggravated assault, committing an assault using an edged weapon, and possession of an edged weapon for a purpose dangerous to the public peace. The convictions flowed from a violent attack at the Toronto East Detention Centre, in which the four co-accused targeted the victim. Mr. Marshall and his co-accused Mr. Sadykov were the principals; Mr. James and Mr. Barton were parties to the offence.
2Following these convictions, the Crown brought an application to commence dangerous offender proceedings. The Crown sought and I ordered a s. 752.1 assessment, and Dr. Treena Wilkie performed that assessment. Upon receiving Dr. Wilkie’s report, the Attorney General determined that the hearing should proceed as a dangerous offender application.
3The circumstances of this case are unique. Mr. Marshall is currently serving sentences on other offences. He will remain incarcerated on those offences for at least another 10 years, and the warrant expiry date on those offences is even further in the future. As such, the analysis is taking place within a unique context.
4The issues on the application are threefold, as follows:
Has it been demonstrated beyond a reasonable doubt that Mr. Marshall is a “dangerous offender” as defined in the Criminal Code? If he is found to be a dangerous offender, should he receive an indeterminate sentence, a determinate sentence and a Long-Term Supervision Order (LTSO), or just a determinate sentence?
If he is not found to be a dangerous offender, has it been demonstrated that Mr. Marshall is a “long-term offender” as defined in the Criminal Code?
5In order for Mr. Marshall to be designated a dangerous offender, I must find that (i) the predicate offence—the one for which the offender is being sentenced—is a serious personal injury offence, (ii) the predicate offence is a part of a broader pattern of violence; (iii) there is a high likelihood of harmful recidivism; and (iv) the violent conduct is intractable. The question of intractability is a key issue in this case.
Background of the Offender
6Mr. Marshall’s life and family background, as summarized here, was thoroughly chronicled by Dr. Wilkie in her expert report prepared for this proceeding.
7Mr. Marshall was born in Scarborough, Ontario. His parents were married in a loving relationship for over 25 years. His mother came from Trinidad, and his father from Jamaica through the UK.
8His father, also named Bevon, died young at 51, in November 2015. He died from complications related to tuberculosis, and the younger Mr. Marshall was unable to visit him during his final illness or attend his funeral, as he was in custody. Mr. Marshall remembered his father as outgoing and funny, a “hands on” guy.
9His mother, Maureen, died only five months later from a stroke at age 61. She had been employed in housekeeping at a hotel. Mr. Marshall felt close to his mother, who he described as “easygoing, funny, [and] very caring.” It was upsetting to him that his continuing incarceration prevented him from attending her funeral.
10Mr. Marshall’s father had two children, Chantal and Ryan, from a prior relationship. They resided with their mother during their formative years but stayed at Mr. Marshall’s family home up to three times per week. Mr. Marshall has a relationship with both, but has lost some regular contact.
11Mr. Marshall’s mother also had children from prior relationships. His half-brother Derrick is 37 years of age, graduated from college and owns a renovation company. He resided in Trinidad when he was young, and then came to live with Mr. Marshall’s family in Toronto when he was 15. Mr. Marshall and Derrick maintain weekly telephone contact. His half-sister, Dale, is 32 years of age and is employed as a music producer. They also maintain weekly telephone contact.
12He also has one sibling from his parents’ relationship, his brother Anthony, who is 27 years of age, and used to be employed in welding. Mr. Marshall has not spoken to him since the day of their mother’s funeral, but they had talked regularly before that.
13Mr. Marshall’s family lived in one family home in Toronto community housing for most of his formative years. The family always struggled with money, to make ends meet.
14His maternal grandmother lived with the family and provided childcare. She was “very funny.” He also had regular contact with his paternal grandparents, aunts and uncles. He was close with his extended family members.
15School was not difficult for Mr. Marshall. He progressed through elementary school, but was suspended four times for “not listening.” Once in high school, he was suspended on several occasions for fighting and truancy, and expelled in grade 11 after being involved in a fight that led to legal charges. He switched schools, and completed most of his grade 11 credits in a small-group environment. He went to a third high school the following year, but dropped out and did not obtain any credits there. Importantly, Mr. Marshall has been motivated while incarcerated and has now completed his GED at the Toronto East Detention Centre.
16His first employment was a summer job after grade 9 when he was 15. He worked mainly in factory work and moving jobs, for three consecutive summers, working every day during these periods. However, he has had no further sustained employment positions due to being in “trouble with the law.”
17Mr. Marshall has had one long-term intimate relationship, with a woman who has, to the best of my knowledge, remained supportive of him throughout his incarceration.
18Mr. Marshall links his criminality to bad decisions and his relationship with his peers, and acknowledges associating with the “wrong crowd.” He told Dr. Wilkie that he would feel obligated to get involved if a friend was in a fight.
19Mr. Marshall first consumed alcohol at age 14 or 15 with friends, and his drinking increased only slightly during his teen years, up to three beers approximately once a week. He first started using marijuana between ages 15 and 17. He estimated using a gram of marijuana (two joints) twice per week prior to his arrest. He stated that the most he ever used marijuana was four times per week, and he denies using marijuana in jail or ever selling marijuana. He also denies current or historical use of all other street drugs or of having an alcohol or drug problem. He has no history of hospitalization, diagnosis or treatment for any mental health condition.
20Mr. Marshall has attended an anger management program while in recent custody, and may have attended a substance use program as a youth.
Evidence and Findings on the 2015 Predicate Offences
21Bevon Marshall was charged, together with Sadyk Sadykov, Kervon James and Ryan Barton, with aggravated assault, committing an assault using an edged weapon, and possession of an edged weapon for a purpose dangerous to the public peace. The assault took place on Saturday, January 3, 2015. The four co-accused and the victim, Andrew Burnett, were inmates of the Toronto East Detention Centre and were moved into Range 3B West (“3BW”) on Friday, January 2, ahead of Monday court dates. That range is the temporary overnight holding area for inmates attending court the next day.
22Burnett sustained significant injuries in the assault. It took numerous stitches to close the slash cut on his right cheek, the wound on the side of his nose, and a roundish puncture wound near his right nipple, and 15 to 20 staples to close the near-fatal slash wound on his upper chest that led to his neck. He sustained several more slashes on the left side of his neck, close to highly vulnerable areas.
23These injuries were caused by a sharp edged weapon, a “shank,” but the weapon was never found. I found that the “shank” used to perpetrate the assault was flushed down the toilet of the adjacent bathroom area in Range 3BW.
24The evidence in this case was circumstantial. The only evidence was the video surveillance (without sound). Sgt. John Lawson, a senior security supervisor at the Toronto East Detention Center, elaborated on the video in viva voce testimony.
25Burnett refused to provide a statement of any kind to the police, and would not testify at the trial despite a judge’s order.
26Burnett had been scheduled to appear in court on Monday, January 5, 2015 to commence a murder trial. On Friday, January 2, he was moved from his regular cellblock into 3BW. He asked not to be moved, not to be put in 3BW, and to be allowed instead to stay in his own cell, but he would not explain the reason and so the request was denied.
27Just after 9:00 am, shortly after their cells were unlocked from the prior evening, Sadykov, Marshall, and James conferred together, and were then joined by Barton. Several minutes later, the four of them walked directly toward and into Burnett’s cell. Burnett’s cellmate, William Ferguson, had left the cell some minutes before. The accused closed the door behind them as they entered the cell.
28A few seconds later, James exited Burnett’s cell, closed the door behind him, held it closed with his foot for a few seconds, then re-entered.
29Barton exited Burnett’s cell and walked toward his own. The top half of his orange jumpsuit had been ripped open. There was an arm tap with another inmate, Mendez, who was the lookout man. Mendez kept other inmates from seeing into Burnett’s cell. Barton exited his cell and pulled on a T-shirt, his jumpsuit gathered at his waist, then went back to Burnett’s cell and stood near the door.
30Ten seconds later, Sadykov exited Burnett’s cell, immediately followed by Marshall. Their shoulders were stooped as they walked, trying to keep their back to the surveillance camera, heading directly for the washroom area where they began to clean up. Marshall used the mop inside one of the bathroom stalls. He leaned over the toilet, then dropped the mop. I found that was when Marshall disposed of the sharp edged weapon in the toilet, and ensured it was protected from discovery by pushing it down into the toilet with the mop handle.
31Sadykov went to the sink to wash his hands. After exiting Burnett’s cell, James went into the washroom and briefly interacted with Marshall in a stall. James and Barton returned to their cell. Sadykov removed his jumpsuit in the washroom. Meanwhile, James exited his cell with a towel and walked back toward Burnett’s cell.
32Marshall exited the bathroom stall and went to the sink. There was an arm tap with another inmate, then Marshall washed his hands. Sadykov removed his shirt. Marshall made a “thumbs up” gesture toward him. James exited Burnett’s cell, having left the towel behind, went to the washroom area and spoke to Marshall and Sadykov.
33At that point, Burnett exited his cell with obvious extensive slash-type injuries. He walked toward the range door holding a white bag. He dropped the bag close to the door and turned around, heading back in the direction of the washroom area. Meanwhile, Marshall started to wash his hands in the sink using a cleaning agent.
34However, when Burnett reached the entry to the washroom area, he reached down to the floor and picked up the wringer part of the mop and pail cleaning equipment, and hurled it violently at Marshall with his right hand. Marshall armed himself with a mop. Burnett staggered slightly and picked up the mop wringer and threw it at him again. It missed its mark. Another inmate tried to intervene. Burnett pushed him away. A trail of blood on the floor tracked Burnett's movements.
35Burnett then went to the door of the range, exited, and was taken to the Common Area. Since he was being aggressive and non-cooperative, corrections officers subdued him and took him to the ground before treating his wounds.
36Meanwhile, Marshall mopped up Burnett’s blood outside the washroom area. Barton and Mendez came out of Mendez’s cell. Barton was wearing shorts. Mendez was carrying a crumpled up orange item, which appeared to be a piece of inmate clothing, and which he disposed of in the garbage. Sadykov collected his jumpsuit and T-shirt from the washroom area and carried them to his cell. Barton, James and Marshall looked through the window from the range into the area where Burnett was being treated. As they turned away from the window, having observed this, James put his arm around Marshall’s shoulders and gave him a brotherly hug.
37I was satisfied beyond a reasonable doubt that these events were carefully and intentionally pre-planned. The four accused formed the common unlawful purpose and intent to inflict the slash-type wounds that Andrew Burnett sustained. The assault was plainly pre-planned and executed with precision, as evidenced by the speed with which it transpired. When Burnett was searched after being subdued following the assault, a sharp edged weapon was found wrapped up in several layers, inside his boxer shorts. But he never had an opportunity to get it out to defend himself.
38I found Marshall and Sadykov guilty of all three offences as principals. They were the primary actors. Based on their location outside of Burnett’s cell when the actual injuries were inflicted, I found that Barton and James were parties to the offences, and guilty of the lesser but included offences of aiding and abetting, rather than being principals in the criminal action that took place that morning.
39I sentenced Sadykov to five years of imprisonment, two and a half concurrent and two and a half consecutive, given the sentences he was already serving and the application of the totality principle. Sadykov’s conviction and net sentence were recently upheld on appeal1, although I was found to have erred technically in splitting the sentence between consecutive and concurrent components. Instead, based on totality, the Court of appeal achieved the same result by upholding the two-and-a-half-year consecutive sentence and deleting the component I described as concurrent. Barton and James were given shorter sentences. I also note that two of the three convictions were stayed under R. v. Kienapple.2
Institutional and Correctional Facilities Evidence
40The Crown proffered the testimony of Ms. Meaghan Jones. She is an administrator within the Toronto region of Correctional Service Canada. She was familiar with the CSC corrections methodology and philosophy. Ms. Jones was called by the Crown to explain the CSC regime of incarceration and treatment programming. She provided information about programming at CSC institutions and outside of an institutional setting in community based correctional centres. I have briefly summarized the principal aspects of her testimony.
41Ms. Jones confirmed that CSC has a mandate and legal obligation to provide whatever supervision the Parole Board of Canada requires under an LTSO. The Parole Board is legally charged with preparing and imposing an LTSO where it has been ordered by the court: they ultimately craft the LTSO based on the recommendations of this court and evidence tendered on this hearing. CSC also manages indeterminate sentences.
42Ms. Jones explained that where an LTSO is imposed, CSC has two separate roles.
43First, it manages the determinate, penitentiary sentence. The length of the determinate sentence determines where the offender serves that sentence. If he receives a sentence of less than two years, he is directed to a provincial facility. If he is given a sentence of two years or more, he is directed to a penitentiary.
44An offender serving his sentence at a penitentiary has access to the ordinary penitentiary programs. He is referred to programs based on his needs as described by his offence and he may be waitlisted like all other inmates.
45As part of its sentencing obligations CSC also provides community programming. These serve general inmates released on parole or at statutory release, general inmates who did not do their programming in the penitentiary, general inmates that did not complete their programs in the penitentiary, and general inmates who need additional programming in the community.
46Offenders with an LTSO remain general inmates until warrant expiry and—if they are sentenced to at least two years—CSC is in charge of sentence management until that point. An LTSO may increase the likelihood of statutory release. If a Long Term Offender is given statutory release, the offender is most often given a residency condition to a Community Correctional Centre (CCC). If released on parole or statutory release with a residency condition, the offender is sent to Kingston’s Henry Trail CCC or Toronto’s Keele CCC. The offender remains there until warrant expiry and the offender functions under the release conditions imposed by the Parole Board for the parole or statutory release.
47Second, when the LTSO commences at warrant expiry (regardless of a penitentiary or provincial sentence), CSC supervises the LTSO.
48CSC supervises all Long Term Offenders in the community regardless of the length of their sentence or the location of their release (i.e., from a federal or provincial custodial facility). This is a task entrusted to CSC that is separate from its role as a sentence manager. CSC uses all of its community programming resources to assist Long Term Offenders.
49If the Long Term Offender is serving a sentence at a penitentiary or is at a CCC (as a result of a statutory release from the penitentiary), CSC will prepare a file about the offender for the Parole Board before warrant expiry. This file gives the Parole Board the CSC perspective on the offender’s conduct within CSC, so that the Parole Board can determine what conditions of release are appropriate for the particular LTSO.
50If the Long Term Offender is at a provincial facility, CSC will contact the provincial authorities before release and request file information about the offender to send to the Parole Board.
51Ms. Jones was asked about the community supervision network that CSC had at its disposal for LTSOs. She described a flexible and gradual release infrastructure able to provide a custom fit for the Long Term Offender: residency at a CCC and then to a Community Residential Facility (CRF) with the opportunity to blend either with part time residency at the home of an approved support person. Gradual release to the community from a CCC commences with 2 hours of access, with a guided expansion of access up to a curfew at midnight. There is in-house supervision provided by a specialized high intensity Parole Officer that includes up to 8 formal meetings a month, and face time at the CCC during the day.
52Programming and counselling are made available as directed by the LTSO. Community third party programming by Narcotics Anonymous, Alcoholics Anonymous, Cocaine Addicts Anonymous or other groups, and monitoring with urinalysis or through an electronic bracelet is provided as directed by the LTSO and CSC. Any relaxation of special Parole Board of Canada conditions must be recommended and approved by CSC and must be based on the performance of the offender.
53I accept the evidence of Ms. Jones. I found it to be of some assistance to understand the program and treatment opportunities that exist within both the federal corrections systems and on the operation of LTSO’s and how Long Term Offenders are managed. I would note, however, that I have previously heard much more detailed testimony and documentary evidence from another CSC senior representative on this subject in another recent dangerous offender, matter, R. v. Christopher States.3 What I learned about the institutional systems and programming for offenders organized by CSC and Ontario Corrections in that matter, concluded very shortly before this one commenced relative to CSC and Ontario sentence and order supervisions, also necessarily informs my thinking in this matter, given that the Crown chose here to present much less detailed and fulsome corrections institution evidence than in that case.
Psychiatric Expert Evidence
(i) Introduction
54The Crown called one expert forensic psychiatrist to testify on this application, Dr. Wilkie. I originally appointed Dr. Wilkie in 2016 to conduct the examination and assessment of Mr. Marshall for this hearing, pursuant to s. 752.1(1) of the Criminal Code. The defence also called its own expert, Dr. Mark Pearce.
55Dr. Wilkie and Dr. Pearce are both expert forensic psychiatrists. Indeed they are colleagues and work together from time to time as staff psychiatrists at the Centre for Addiction and Mental Health (CAMH). They are also both Assistant Professors of Forensic Psychiatry at the University of Toronto Department of Psychiatry. They both plainly respect each other’s work and qualifications.
56Dr. Wilkie prepared a lengthy and thorough expert report pursuant to my s. 752.1 order, and Dr. Pearce provided a thorough response to that report. Both reports were filed as exhibits.
57Both Dr. Wilkie and Dr. Pearce were accepted as expert forensic psychiatrists without objection by either party
58In preparing her opinion relative to Mr. Marshall’s psychiatric and psychological condition, and the recidivism risks that he would present upon release from custody, Dr. Wilkie relied on a number of tests or instruments. She assessed Mr. Marshall with risk evaluation tools, including the Psychopathy Checklist Revised, the Violence Risk Appraisal Guide, and the Historical Clinical Risk Management -20, Version 3, made extensive reference to the testing instruments and provided detailed explanations in her evidence on those testing tools.
59It will suffice for the purposes of these reasons, however, to present detailed “highlights” of Dr. Wilkie’s report and testimony in order to capture its essence. Dr. Pearce’s review of her opinion is copied in full, given its short length.
(ii) Dr. Wilkie’s evidence and opinion
60Dr. Wilkie provided a detailed assessment of Mr. Marshall based on the significant background information she had about him, as summarized above. She also provided detailed information about her methods.
61First, before looking to the future risks he presents, Dr. Wilkie found that Mr. Marshall has an Antisocial Personality Disorder. According to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), the essential feature of antisocial personality disorder is a pervasive pattern of disregard for, and violation of, the rights of others, occurring since the age of fifteen, as indicated by three or more of:
(i) Failure to conform to social norms with respect to lawful behaviours [met]
(ii) Deceitfulness as indicated by repeated lying, use of aliases, or conning others for personal profit or pleasure
(iii) Impulsivity or a failure to plan ahead [met]
(iv) Irritability and aggressiveness [met]
(v) Reckless disregard for the safety of self or others [met]
(vi) Consistent irresponsibility as indicated by a repeated failure to sustain consistent work behaviour or honour financial obligations [met]
(vii) Lack of remorse, as indicated by being indifferent to, or rationalizing, having hurt, mistreated, or stolen from another [met]
62While the presence of only three of the characteristics listed above are required to support an ASD diagnosis, in fact Mr. Marshall meets all of the characteristics except one.
63Dr. Wilkie explained that individuals with an antisocial personality disorder are described as frequently deceitful and manipulative in order to gain personal profit or pleasure. They may manifest a failure to plan ahead and they may make impulsive decisions, without consideration for the consequences to self or others. This may lead to sudden changes of jobs, residences, or relationships. They may engage in sexual behaviour or substance use that has a high risk for harmful consequences. Irresponsible work behaviour may be indicated by significant periods of unemployment despite available job opportunities, or by abandonment of jobs without a realistic plan.
64Individuals with this personality disorder may blame the victims of their offences, minimize the harmful consequences of their actions, or simply indicate indifference. Such individuals may be irresponsible and exploitive in their sexual relationships. They may experience dysphoria, including complaints of tension, an inability to tolerate boredom, and depressed mood. Various other disorders are frequently comorbid with antisocial personality disorder, including mood, anxiety and substance related disorders.
65Looking forward, Dr. Wilkie explained that treatment for antisocial personality disorder is difficult, but primarily focuses on anger management, social skills, and vocational training. Management is focused on independent verification of information, the development of predictable behavioral consequences, and maintenance of consistent boundaries. Anti-aggressive pharmacotherapy may be of some potential benefit.
66Dr. Wilkie was unable to determine whether he had a substance use disorder, due to lack of information. She suggested that the question of whether Mr. Marshall has a substance use disorder might be the subject of future assessments.
67Based on the Historical Clinical Risk Management -20, Version 3, the principal, and most relevant, criminogenic variables in Mr. Marshall’s case are
A history of problems with violence and antisocial behavior;
A history of problems with violent attitudes;
A history of problems with employment;
A history of problems with substance use;
A history of problems with personality disorder;
A history of, and recent problems with treatment or supervision responses; and
Recent problems with insight into his own conduct.
68Turning to the reoffending and public safety focus of this inquiry, Dr. Wilkie made a number of findings related to Mr. Marshall’s risk of reoffending. Using the Psychopathy Checklist Revised, she found that Mr. Marshall’s score was elevated, and would be considered “moderately predictive of future general and violent recidivism.”
69On the Violence Risk Appraisal Guide—a measure intended to estimate risk of further violent offending over a 10-year period—taking into account a measure of error, Mr. Marshall’s score was expected to fall within the sixth to eighth of nine ascending categories of risk.
70Based on the Structured Assessment of Protective Factors, Dr. Wilkie identified as protective factors Mr. Marshall’s secure attachment in childhood and the availability of professional care and external control. She also identified items that could be bolstered to increase the protective factors, namely self-control, empathy, participation in leisure activities and/or work, and social network.
71Overall, Dr. Wilkie concluded that she “would view Mr. Marshall as being at high risk for general and violent recidivism from a clinical perspective as well as from an actuarial perspective.” However, she noted that this does not specifically address the question of the severity of future offending.
72Dr. Wilkie explained that the concept of a reasonable expectation of eventual control of the risk in the community “is not particularly well-defined from a psychiatric perspective; this would appear to hinge on whether or not he could be considered treatable and whether such treatment offers any hope that his risk could be managed within the community.” As such, Dr. Wilkie endeavoured to assess treatability.
73Dr. Wilkie acknowledged that Mr. Marshall is currently serving a lengthy sentence and so predicting his risk in the community is not straightforward. Specifically, she explained:
I would also note that Mr. Marshall is currently serving a total sentence of 15 years. Therefore, any discussion of risk management in the community is contemplating a scenario that is a considerable amount of time in the future. During that time, Mr. Marshall will be spending more of his adult life in a correctional institution. In this environment, he will be exposed to criminal peers, a particularly salient risk variable for his participation in criminal activity, both in the institution and in the community, but he will also assumedly be offered programs that have never previously been available to him in a provincial jail. Given these circumstances, for this individual who has spent relatively little time in the community as an adult, commenting on risk management in the community at the end of such a term of incarceration is not straightforward. I have listed below the factors I have taken into consideration in offering my opinion, specifically as they relate to Mr. Marshall. (my emphasis)
74Commenting on Mr. Marshall’s psychiatric diagnosis of antisocial personality disorder, Dr. Wilkie found that his prognosis for successful treatment (and a commensurate impact on his risk of recidivism) was average compared to other defendants. She noted that she does not expect Mr. Marshall’s diagnosis to change over time, with age, and she was concerned that his lack of insight into his risk issues could impact on his commitment to programming and risk management interventions.
75Dr. Wilkie observed that Mr. Marshall has had difficulty in the past complying with orders for community supervision. This informed her opinion that when returned to the community, Mr. Marshall is likely to return to a similar destabilizing situation, with criminal peers, drugs and guns. With respect to employment prospects and supports, Dr. Wilkie noted that, while he has been incarcerated, Mr. Marshall has preferred to engage in studies than in employment; that professional supports in the community would likely be important as part of a risk management plan on release; and that he has social supports in his parents and girlfriend, but that their role in a risk management plan was unclear to her.
76Overall, Dr. Wilkie stated that the risk assessment suggested to her that Mr. Marshall presents with a substantial risk of future violence. She further opined,
Any management plan in the community could only be conceivable after a lengthy period of behavioral quiescence in the institution, participation in therapeutic interventions, internalization of principles of risk management interventions, an understanding of his risk cycle and contributing factors, and the availability of salient external controls. Any management plan in the community would require communication of clear expectations and the ability for quick intervention.
77Dr. Wilkie provided guidance on the kinds of structures and conditions that should be in place, if I were to find that Mr. Marshall would be suitable for supervision in the community:
(i) Mr. Marshall should access and complete programs during a period of incarceration, including programs to address cognitive skills, anger management, antisocial attitudes and the identification and understanding of his risk cycle. He should continue with program involvement upon any eventual release into the community. In order to improve his responsivity to proposed interventions, motivational interviewing may be helpful during the initial phases in the treatment process.
(ii) Mr. Marshall should undergo substance use programming both in the institution and in the community. He should remain abstinent from alcohol and street drug use in perpetuity.
(iii) Mr. Marshall should be subject to intense case management and supervision upon any eventual release into the community, including initial residential placement in a correctional facility, with privileges for unsupervised time away from the facility being earned through demonstrated compliance with programs and supervision. A release should take place on a gradual basis, allowing for rapid intervention should he fail to comply with conditions. Mr. Marshall’s whereabouts when outside the facility should be subject to verification, and supervising officers should make regular visits if he is residing outside of a correctional facility. There should be clear communication with Mr. Marshall about the behavioral expectations during any period of supervision.
(iv) Engagement in structured activities, including employment, should be a mandatory condition of any contemplated release, and
(v) Mr. Marshall should be prohibited from having contact with any criminally oriented, or substance abusing, peers outside of correctional facilities. He should be prohibited from possessing any weapons.
(iii) Dr. Pearce’s review of Dr. Wilkie’s evidence and opinion
78Dr. Pearce generally agreed with Dr. Wilkie’s analysis, but, importantly, he also emphasized its limits: the analysis is useful for predicting risk over the next decade, but Mr. Marshall will not be released in the next decade. Dr. Pearce explained:
Dr. Wilkie is a colleague of mine and is a very experienced and well-respected forensic psychiatrist. While I have not met with [Mr. Marshall], given her report and the material available to me, I support the diagnosis and risk assessment conclusions she reached. Thus in my view Dr. Wilkie has performed a very competent and thorough risk assessment, as she typically does, given the issues at hand. She has correctly identified the relevant criminogenic risk variables and used evidence-based tools to help predict Mr. Marshall’s risk of future offence, to the best of her ability. It should be noted that the “gold standard” tools she employed are only moderately successful at predicting risk of re-offence. In addition, the tools assume a near immediate release from custody and access to the community. The risk for re-offence is a prediction of future violence or sexual re-offence (depending upon the tools used) over the next decade; therefore, while the risk assessment results are likely accurate, it would appear that there is no chance that Mr. Marshall will be released to the community in the ensuing decade, even if he is granted parole by the Parole Board of Canada (PBC).
Predicting the risk of re-offence is challenging at the best of times and as aforenoted, we are only moderately successful in that regard. Trying to predict risk beyond a 10-year horizon is obviously even more complicated and there is little scientific evidence to state that we can do so confidently. Trying to look fifteen years into the future is very problematic, in terms of making an evidence-based, meaningful opinion of whether a given accused will re-offend.
I have a great deal of confidence in the risk assessment performed by Dr. Wilkie, but again, that assumes a near immediate release from custody. It isn’t clear to me what risk he will present, if any, after he has served a custodial sentence of at least fifteen years. While he suffers from a personality disorder and has a high PCL-R score, he may be able to make significant gains at reducing his risk, given the fact that he will age considerably and will have the ability to participate in robust treatment geared towards reducing his risk of re-offence.
Trying to predict risk fifteen years out is extremely challenging and it would be difficult to be confident about risk predictions made that far into the future. This is because several risk factors will change over time; that is, they are dynamic or changeable. Participation in treatment programming is geared towards modifying these risk factors, which include, for example, substance use, antisocial attitudes and limited community support. In addition, Mr. Marshall will have aged and possibly matured considerably in 15 years, and this could impact upon his risk to others as well. In sum, an individual may have changed considerably after the passage of such a substantial period of time.
(iv) Findings relating to the expert evidence
79It was a pleasure and source of great comfort to me to have two expert witnesses of the caliber of Drs. Wilkie and Pearce testifying before the court, and even more reassuring when they largely agree, as they did. I generally found their expert opinion evidence to be credible and reliable, even if they were not always in complete agreement. Nor do I find that surprising given the subtle differences in role that each of them plays on this hearing.
80Both expert opinions, however, reveal the limits of psychiatry to predict Mr. Marshall’s risk of reoffending so far in the future.
81Mr. Marshall was 25 years of age at the time of the predicate offences. He will be at least 35 years of age before he becomes eligible for statutory release on his current sentences, and this sentence begins to take effect. He will be 40 years old by the warrant expiry date on his current sentences, and before any further sentence is imposed arising out of this dangerous offender application.
82Indeed, if I were also to determine that Mr. Marshall should be subject to a ten-year LTSO, as the Crown requests, regardless of whether I find the offender to be a dangerous offender, Mr. Marshall could well be 45-50 years of age before being fully released, depending on his performance.
83Both experts acknowledged that current psychiatric tools simply cannot predict that far in the future, with any certainty.
84Dr. Pearce explained that the risk assessment assumes immediate release. Predicting an offender’s risk on release 10 or 15 years in the future is much more difficult, and there is little scientific evidence indicating that such predictions can be made confidently.
85Dr. Wilkie conceded in cross-examination that the length of sentence that Mr. Marshall still has in front of him, before the imposition of a sentence on this the predicate offence, creates problems in predicting his circumstances by the time they will become relevant. For example, the Violence Risk Appraisal Guide test that she applied to Mr. Marshall, intended to assess his likely recidivism for violent offences, has no predictive ability beyond 10 years.
86The effect of this uncertainty will be discussed more below, when considering whether Mr. Marshall’s conduct is intractable.
The Dangerous Offender Criteria
87It bears repeating on every dangerous offender hearing that the dangerous offender regime found in Part XXIV of the Code, contains extraordinary sentencing tools. Unlike most sentences, Part XXIV applies where it is alleged that the offender’s liberty must be restricted by a sentence that is imposed for preventative reasons.
88The dangerous offender regime, therefore, goes beyond the sentencing factors and considerations in Part XXIII. It legally permits detention beyond any appropriate range of sentence for the predicate offence. It does so to protect the public against a serious violent act that has yet to occur.
89Designation as a dangerous offender exposes an offender to an indeterminate sentence, and such a sentence “can be imposed only upon offenders for whom segregation from society is a rational means to achieve the overriding purpose of public safety”: Boutilier, at para. 33. In order for segregation to be a rational means of achieving that purpose, the offender must pose a future threat to society such that the sentencing objective of segregation from society is elevated above the other objectives: Boutilier, at para. 34.
90An LTSO, also capable of being imposed under Part XXIV, permits a restriction on liberty for up to 10 years after a determinate sentence has expired.
91Given the parameters of Part XXIII, the availability of s. 810.2, and that most offenders receive determinate sentences even though there are high rates of further reoffending, it is plain and obvious that the violence at issue in a dangerous offender application must be serious, and that s. 753(1) addresses a particular subset of violent offenders.
92By corollary, the importance of the offender’s liberty interest and the preventative aspect of the restriction demands that these extraordinary tools not be applied casually. Their impact on the offender, justified by the need for public safety, suggests that the record before the court about the offender must demand the imposition of such an extraordinary remedy. It is not my prerogative to err on the side of a dangerous offender designation and indeterminate detention or an LTSO out of “prudence” or “an abundance of caution.” The evidence must leave me with no alternative choice based on criteria that must be made out by the Crown beyond a reasonable doubt.4
(i) Legislative provisions applicable in this case
93There were significant amendments to the dangerous offender regime enacted by Parliament on August 1, 1997, and again in 2008. The nature and consequences of those amendments were discussed in the reasons of the late Justice Rosenberg in the arguably leading decision in this province of R. v. Szostack,5 and in other important cases to which I will refer. Most recently, the Supreme Court of Canada discussed those amendments in Boutilier.
94However, earlier decisions addressing the legal tests that apply on a dangerous offender application continue to be relevant and controlling in this province under the law as amended. They include the reasons of Feldman J.A. in R. v. Hogg.6 It refers with approval to the earlier decisions of the Alberta Court of Appeal in R. v. Neve7, of the B.C. Court of Appeal in R. v. Pike8 and R. v. Dow9, and of the Newfoundland and Labrador Court of Appeal in R. v. Newman10, and to the older but still respected decision of Lacoursiere J.A. of the Court of Appeal of Ontario, writing for Martin and Goodman JJ.A in R. v. Langevin.11
95These earlier decisions continue to be governing on an application like this, but the current statutory provisions as enacted in 2008 apply in this case, since the index offences were committed on January 3, 2015.
96Sections 753(1) and (1.1), among others, establish the framework for determining whether Mr. Marshall can be deemed to be a dangerous offender. Given the manner in which the Crown has framed this application, the relevant provisions include ss. 753(1)(a)(i) and (ii).
97The framework at the designation stage reads, in relevant part, as follows:
- (1) …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, or
(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behavior.
98Before 2008, the dangerous offender provisions conferred discretion on the sentencing judge not to impose an indeterminate sentence as a dangerous offender even where the dangerous offender criteria were met.12 In contrast, section 753 of the Code now relies on the imperative language of “shall,” rather than the permissive language of “may,” thereby removing the discretion of the trial judge not to declare the accused a dangerous offender where the criteria are met.
99Under s. 753(1) as it now reads, designation is mandatory where four criteria are met. First, the predicate offence—the one for which the offender is being sentenced—must be a serious personal injury offence as described in s. 752 of the Code, which reads, in relevant part,
- …“serious personal injury offence” means
(a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving
(i) the use or attempted use of violence against another person, or
(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person,
and for which the offender may be sentenced to imprisonment for ten years or more.
This initial threshold—known as the objective element—limits the kinds of offences that can give rise of a dangerous offender designation. The predicate offences in this matter plainly constitute serious personal injury offences.
100The second, third, and fourth criteria are collectively the subjective element. They are that (2) the predicate offence is a part of a broader pattern of violence; (3) there is a high likelihood of harmful recidivism; and (4) the violent conduct is intractable: R. v. Lyons13, cited with approval in Boutilier, at para. 26.
101The application of these three criteria requires that the offender be found to constitute a threat to the life, safety or physical or mental well-being of other persons, based on evidence revealing one of the requisite patterns of behaviour. To satisfy the requirements in s. 753(1)(a)(i), the pattern must
be a pattern of repetitive behavior,
include the predicate offence,
show a failure to restrain behavior in the past, and
show a likelihood of death, injury or severe psychological damage to others through a repeat of that pattern in the future.
Alternatively, to satisfy the requirements in s. 753(1)(a)(ii), the pattern must
be a pattern of persistent aggressive behavior,
include the predicate offence, and
show a substantial degree of indifference by the offender respecting the reasonably foreseeable consequences of that behaviour.
One of these specific patterns must be made out.
102The fact that the 2008 amendments removed the court’s discretion once the criteria are met does not suggest that courts should operate mechanically or robotically. If anything, it suggests that courts must be more rigorous in their analysis as to whether the criteria have indeed been satisfied.
103The purpose of the Part necessarily informs the interpretation and application of the section. The two requirements in s. 753(1)(a) are intended to identify offenders who pose one of the specific kinds of threats that are the focus of Part XXIV. If the criteria are made out beyond a reasonable doubt, then the 2008 amendments dictate that the judge will find that the requisite threat to public safety is present and designated the offender dangerous.
(ii) The question of “pattern” showing a high likelihood of harmful recidivism
104The pattern analysis is aimed at predicting risk. Regardless of whether the behavior is alleged to fall under s. 753(1)(a)(i) or (ii), the criteria seek to identify a certain type and frequency of conduct that presents an intolerable risk to the community because it dictates a conclusion that the next offence is a question of “when,” not “if.” The section requires a pattern, conduct that takes its cue from the predicate such that one can or could say that the predicate is the last straw. It stands for the proposition that the conduct of the past continues unabated, and “but for” an intervention, that it will unquestionably continue.14
105The Crown bears a specific burden of proof on a dangerous offender application. In R. v. Currie,15 Lamer C.J.C. observed that the dangerous offender criteria under s. 753 do not require proof beyond a reasonable doubt that the respondent will re-offend. Such a standard would be impossible to meet. Rather, the Code requires that the court be satisfied beyond a reasonable doubt of the ‘likelihood’ that the respondent will inflict harm.16 As the Court observed in R. v. Driver,17 it is the likelihood or risk, not the certainty of future harm that must be established beyond a reasonable doubt. As such, as Morden J.A. said in Knight, “the quality and strength of the evidence of past and present facts” together with the opinion of forensic psychiatric and psychological experts provides a foundation for the court to make a finding of “the present likelihood of future conduct.”
106Importantly, however, the risk being predicted is not a general risk of reoffending. Rather, it is the risk that the offender will reoffend in a particular way. Levine J.A of the B.C. Court of Appeal clarified in Pike that the risk being considered is the risk that the offender will reoffend by acting in accordance with his established pattern of behaviour, or by failing to restrain that pattern of behaviour, not his risk to reoffend in some other manner. The Alberta Court of Appeal explained in R. v. Neve that the essence of the threat must be kept in mind: a threat to the life, safety or well-being of others, as described under s. 753(1)(a).
107Three safeguards are in place to ensure that the analysis is focused. First, the predicate offence must form part of the pattern. Second, the other conduct that forms part of the pattern must be proven to the criminal standard and be sufficiently serious. Third, the conduct must show a sufficient level of similarity for a pattern to be borne out. And finally, the Crown must prove the risk of reoffending beyond a reasonable doubt.
108Section 753(1)(a)(i) and (ii) require a pattern of behavior of which the predicate forms a part. The Alberta Court of Appeal affirmed this key requirement in Neve, at para. 110. In each instance, the predicate offence must embody the core conduct that it is alleged will occur again.
109The requirement that the predicate offence forms part of the identified pattern is an important safeguard. It establishes the nature of the conduct under consideration and it confirms, where so found, that it continues unabated. As Levine J.A of the B.C. Court of Appeal explained in R. v. Pike,18 at para. 82, “The predicate offence is not a meaningless, statutory trigger.” Rather, it is significant because “it demonstrates that the relevant pattern of behaviour continues.” The predicate offence also serves as the anchor for the inferential leap relative to risk that is required in making a dangerous offender designation.
110No conduct can form part of the pattern unless it has been proven to the criminal standard. If the conduct is not conduct for which the accused has been criminally convicted, then the Crown is obliged to call evidence of the conduct and prove the conduct beyond a reasonable doubt.
111Further, the conduct that forms part of the pattern must be sufficiently serious. The Court in Neve explained that, since the predicate offence—a serious personal injury offence—must form part of the pattern, the other conduct must be comparably serious. As such, the conduct must be criminal, and not simply antisocial.19 It must also have involved some degree of violence or attempted violence or endangerment or likely endangerment.20
112The level of similarity required is determined by the purpose of the pattern analysis: to identify a pattern sufficient to form a sound basis for prediction. In R. v. Langevin,21 Lacoursiere J.A., writing for the Ontario Court of Appeal, explained that the pattern element “is not based solely on the number of offences but also on the elements of similarity of the offender’s behaviour.” In Dow, Lambert J.A. clarified, at para. 25, that there must be “a number of significant relevant similarities between each example of the pattern that is being considered, but that, at the same time, there may be differences between each example, some of them quite distinctive, so long as the differences leave the key significant relevant elements of the pattern in place.” Feldman J.A. of our Court of Appeal, writing in Hogg,22 summarized as follows:
To summarize, the pattern of repetitive behaviour that includes the predicate offence has to contain enough of the same elements of unrestrained dangerous conduct to be able to predict that the offender will likely offend in the same way in the future.… However, the offences need not be the same in every detail; that would unduly restrict the application of the section.
(iii) The question of intractability
113The Supreme Court of Canada affirmed in Boutilier that intractability remains an important criterion at the dangerous offender designation stage.
114A dangerous offender designation is necessarily predicated on a judge’s finding that an offender poses a future threat to the community, and the assessment of this future threat has always required consideration of prospective evidence, such as evidence of future treatment prospects: Boutilier, at para. 23.
115Prospective evidence is also relevant at the penalty stage of the proceeding, but its purpose is different at each stage: Boutilier, at paras. 31, 43-45. The majority in Boutilier elaborated as follows at para. 45:
[O]ffenders 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. 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. [Citations omitted] (My emphasis)
116As such, I must consider prospective evidence, such as evidence of future treatment prospects, at the designation stage.
Findings on the Dangerous Offender Criteria
(i) Serious personal injury offence
117The initial threshold for this application relates to the nature of the predicate offence. The evidence must show that the offence for which the offender has been convicted is a serious personal injury offence as described in s. 752.
118In this case, it is plain that the predicate offences against Andrew Burnett are serious personal injury offences. Mr. Marshall has been convicted of aggravated assault (s. 268(1) – 14 year maximum), assault with a weapon (s. 267(a) – 10 year maximum) and possession of a weapon for a dangerous purpose (s. 88(1) – 10 year maximum). Crown counsel relies on the offences of assault with a weapon and aggravated assault as constituting the predicate offence for the purposes of this application. The other offence is not part of the predicate offence on this application.
119Assault with a weapon and aggravated assault are serious personal injury offences of the kind described in paragraphs (a)(i) and (ii) of the definition of serious personal injury offence in s. 752 of the Criminal Code, namely those involving:
(i) the use or attempted use of violence against another person, or
(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person and for which the offender may be sentenced to imprisonment for ten years or more.
120The predicate offence meets the threshold requirement for engaging a dangerous offender analysis. As such, I must consider whether Mr. Marshall is a dangerous offender according to the criteria in s. 753(1)(a).
(ii) Character of past offending conduct: the question of pattern
121Mr. Marshall argues on this application that the requisite pattern identified under (i) and (ii) is not made out because the predicate is different from previous offending.
122It is evident that Mr. Marshall has amassed a long criminal record that contains many offences. These include numerous offences exhibiting varying degrees of violence. He has been convicted of fourteen criminal offences dating back to 2006 (including the index offences). He has four convictions for assault-type offences including three convictions for robbery, two theft offences, four weapons-related offences, and at least one faile to comply conviction. Four serious convictions in this list occurred when he was a youth, The balance of his offending record (three offences) relates to possession of illegal drugs, for his own use or for trafficking.
123Mr. Marshall commenced his criminal antecedents as a youth in 2006. He was charged with two counts of robbery but instead pled guilty to two charges of Theft Under in Toronto on February 3 and September 7, 2006. He was convicted of two other serious offences as a youth, an Assault in Cobourg, on September 20, 2007 and a Robbery in Toronto on February 24, 2008 and January 19, 2009.
124His first adult conviction was for failing to comply with the terms of his probation on May 25 and August 6, 2009, but he then proceeded to more serious crime.
125He was convicted of possession of a firearm contrary to s. 92, and breach of a previously imposed Weapons Prohibition, on August 24, 2009. He spent 17 months in pre-trial custody and was sentenced on October 4, 2010 to 1 day and placed on a s. 109 order for 10 years.
126These offences involved being in possession of a sawed-off rifle without authorization or license, and while under an order prohibiting him to do so, pursuant to the YCJA. Marshall pled guilty to both charges. On August 24, 2009, officers attended an area on general patrol, but they were also looking for Mr. Marshall. The officers saw a large group of males who were acting suspiciously every time pedestrians walked by. A robbery had occurred in similar circumstances days earlier. The officer “saw one of the parties that could be wanted”; this was Mr. Marshall. He approached and saw 11 or 12 males in the yard. He observed Mr. Marshall and they locked eyes. Mr. Marshall got up and ran. The officer identified himself and ordered Mr. Marshall to stop.
127While Mr. Marshall was running, he was observed holding his front waistband. The officer entered the unit and could hear movement on the second floor that sounded like furniture moving or drawers opening and closing. Mr. Marshall later appeared from one of the bedrooms at the front of the house. He was handcuffed and arrested for what they believed was a robbery charge at the time. The search of the second floor revealed a sawed-off rifle in a dresser drawer in the second floor bedroom at the rear of the house. This took place at a time when Mr. Marshall was 20 years old, had completed 22 credits towards his grade 12, and planned to live with his girlfriend and work for his brother who ran a construction company. He wanted to study carpentry.
128Mr. Marshall’s next conviction was for possession of cocaine in Toronto on June 10, 2012. On January 11, 2013 he was placed on two years’ probation, having spent eight months in pre-trial custody.
129On September 1, 2015 he was convicted of conspiracy to commit robbery on May 8, 2013 and he was sentenced to 3.5 years in custody (40 months’ credit for pre-trial custody, which left a two-month sentence to be served), and a section 110 order was imposed for life. He pleaded not guilty but both he and his co-accused were convicted on the basis of an Agreed Statement of Fact which recounted intercepted communications by the co-accused to Mr. Marshall discussing a proposed robbery. They discussed the need to obtain a weapon in order to be able to carry it out. “The tone of their voices was excited and enthusiastic.” There are several subsequent communications as Mr. Marshall attempted to secure a weapon from two or three different people. The robbery itself never materialized
130On January 29, 2016, he was convicted of robbery and discharge of a firearm with intent to endanger life. The date of the offences was February 25, 2009. Mr. Marshall was sentenced to 11 years and six months total (less three months’ pre-trial custody), and given a section 109 order for life. He was initially also charged with Attempt Murder and found not guilty. He pled not guilty on all charges. He was found guilty on the two charges on October 1, 2015. There was a co-accused who was found guilty of robbery.
131According to the transcript of the Reasons for Sentence of O’Marra J. of this court, dated January 29, 2016, Mr. Marshall and a co-accused were jointly charged related to an “extremely violent robbery” that occurred on February 25, 2009. They were not arrested until four years later on June, 2013. The trial commenced on September 17, 2015. The victim operated a pawn shop in Toronto. In the late evening of February 25, 2009, the victim was working with a male employee. Just before closing, two men barged into the shop. A surveillance video shows the men as masked and brandishing weapons, a baseball bat and a handgun. Mr. Marshall and the other man had been driven to the area by the co-accused. The victim and his employee were forced under threats to various locations in the shop. The robbers smashed display cases and gathered jewelry and other property. The victim at various times engaged in physical struggles with each of the perpetrators. It was described that there was a protracted, violent struggle between the victim and the intruders. Mr. Marshall brandished a handgun during the struggle with the victim.
132The struggle ended after Mr. Marshall fired a shot into the victim’s abdomen from very close range. Mr. Marshall and the accomplice fled the shop, leaving the victim badly wounded on the floor. They got into a waiting vehicle and drove away. The plan to rob the shop also involved a 22-year-old woman who was described as a drug addict. She was recruited to accompany the co-accused to the robbery scene in his car. En route, they picked up Mr. Marshall and the other male. The plan was for her to enter the shop first, act as a browsing customer and then make sure she was the last customer to leave before closing. She was arrested, pled guilty to robbery in October 2013, and was sentenced to 18 months in jail and 2 years’ probation. She later testified that she had no knowledge that a gun would be involved in the robbery. The Judge described the robbery as being relatively sophisticated. It was planned and deliberate.
133His last conviction before the predicate was for Trafficking Cocaine, Attempted possession of a firearm, and of Possession cocaine for the purpose of trafficking on June 5, 2013. On March 23, 2016, he was sentenced to 4 years (consecutive to any other sentences being served) on the first charge and 2 years concurrent on the other two charges. According to the Reasons for Sentence of Goldstein J., dated March 23, 2016, Mr. Marshall was convicted by a jury. The facts of the offence were reviewed.
134In May and June, 2013, the police were intercepting Mr. Marshall’s communications pursuant to an Authorization. On May 15, 2013, he exchanged BBMs with an unknown person. At the end of the conversation, the person sent a photograph of what appeared to be a rock of crack cocaine. A detective gave evidence about the language used in the communication referred to cocaine. On June 5, 2013, Mr. Marshall asked a person to obtain a firearm for him during a telephone conversation that was intercepted by police. He was convicted of attempting to obtain a firearm as a result of related evidence of that conversation. The next day, police executed a search warrant at an apartment; they found Mr. Marshall at that location. A rock of crack cocaine was seized; the weight was estimated to represent 50 individual sales. They also found a digital scale.
135Mr. Marshall’s history was reviewed. He was described as having been raised by “supportive parents who were gainfully and consistently employed,” but that he began associating with the “wrong crowd” in high school, was skipping classes and eventually stopped going to school. He was reportedly taking adult education classes at the time of his arrest. He had moved out of the family home at age 17. He was involved in an “on and off” relationship with his girlfriend for ten years, and had lived in her father’s basement for a period of time. His employment history was described as “spotty at best.” It was noted that he was currently serving a 15-year sentence (imposed for the prior offence).
136Justice Goldstein described Mr. Marshall as an “extremely dangerous man.” He continued that Mr. Marshall had “shown a frightening relish and zeal for violence and a propensity towards firearms.” The mitigating factor was identified as Mr. Marshall’s young age. The aggravating factors were that he “has led a life of unceasing criminality. There is the shocking nature of some of the previous offences he has committed. There is the spotty employment and educational record.” Further, it was written, “People caught up in the justice system, often talk about making bad choices in friends. Those people are often led to commit offences. Those people talk about people like Mr. Marshall. Mr. Marshall is not simply a bad choice in friends, he is one of those bad choices that other people make.”
137Nevertheless, as with most of his other crimes, he denied responsibility and told Dr. Wilkie that he was holding the cocaine for someone else, being unwilling to accept responsibility for the conduct himself.
138I find that this offending history does reveal a pattern of behaviour of the kind discussed in each s. 753(1)(a)(i) and (ii).
139With respect to s. 753(1)(a)(i), the offending history reveals a pattern of repetitive, violent behaviour that includes the predicate offence. In particular, the robbery convictions and the predicate offence show a failure to restrain behavior in the past and a likelihood of death, injury or severe psychological damage to others through a repeat of that pattern in the future.
140With respect to s. 753(1)(a)(ii), the robbery offences, firearms offences, and predicate offences are a pattern of persistent aggressive behaviour. This pattern shows a substantial degree of indifference by the offender respecting the reasonably foreseeable consequences of that behaviour.
141Mr. Marshall’s offending history constitutes a pattern of offending sufficient to satisfy the requirements in each s. 753(1)(a)(i) and (ii).
(iii) Is Mr. Marshall’s conduct intractable?
142Before designating Mr. Marshall as a dangerous offender, I must be satisfied to the criminal standard that his conduct is intractable, meaning that it is behaviour that he is unable to surmount: Boutilier, at para. 27.
143As Côté J. wrote in Boutilier, at para. 23, “[A]n offender cannot be designated as dangerous unless the judge concludes that he or she is a future ‘threat’ after a prospective assessment of risk” [emphasis in original]. This prospective assessment requires consideration of, among other things, future treatment prospects. The question is, am I sure that this is behaviour of the kind that Mr. Marshall cannot overcome?
144However, in this case the psychiatric and other evidence cannot establish beyond a reasonable doubt that Mr. Marshall’s conduct is intractable. Certainly, it cannot establish that he will not surmount this behaviour before he completes the sentences he is already serving and this sentence begins to run.
145The psychiatric evidence is inherently limited: it can assist us in determining the risk of reoffending only over the next decade. The analysis assumes immediate release, and predicts a decade into that release period. However, Mr. Marshall will be subject to state supervision beyond the next decade. As such, it is impossible to know what his risk of reoffending will be when this sentence becomes effective.
146When she gave her evidence, Dr. Wilkie knew that Mr. Marshall was 25 years of age at the time of the predicate offences. But she also knew that he is currently serving a sentence of 15 years and three months. That aggregate time is the result of sentences imposed by B. O’Marra J. for the convenience store attack and by Goldstein J. for Mr. Marshall’s last conviction of possession of drugs for the purposes of trafficking.
147Dr. Wilkie was also aware that the preceding sentence must be served before any sentence that may be imposed arising out of this offence. So even if Mr. Marshall were only sentenced to a couple of years of incarceration arising out of the predicate offence, he would be at least 35 years of age when this sentence would begin to take effect, and before he would be eligible for statutory release. He would be 40 years old by the warrant expiry date on his current sentences, and before any further sentence is imposed arising out of this dangerous offender application.
148Indeed, the determinate portion of the sentence could, and as I will explain, would be a higher sentence of five years’ incarceration for the predicate offence, the same five years that were initially imposed upon Mr. Marshall’s principal co-conspirator, Sadyk Sadykov, (two and a half years net after totality) in the wounding of Andrew Burnett. As in Mr. Sadykov’s case, however, and the Court of Appeal’s recent decision upholding the net increase of two and a half years’ incarceration for this offence, based upon the principle of totality, I would reduce that five-year sentence to two and a half years consecutive to all sentences presently being served.
149This would inevitably extend the time to potential release. Indeed, if I were also to determine that Mr. Marshall should be subject to a ten-year LTSO, as the Crown requests, regardless of whether I find the offender to be a dangerous offender, Mr. Marshall could well be 50 years of age before being fully released, depending on his performance.
150Dr. Wilkie testified that Mr. Marshall believes he has come to understand a lot over the past few years. He has also progressed while he has been incarcerated. He has completed his high school diploma and he has completed a course at Centennial College.
151Dr. Wilkie acknowledged as well that, assuming that Mr. Marshall will be sentenced to at least a minimum penitentiary sentence, he will be exposed to and able to participate in a great deal more programming at the penitentiary than has been available to him in remand facilities. She indicated her belief that the core and maintenance programming that will be available to Mr. Marshall in the penitentiary is exactly the kind of programming that is suitable for his particular disorders, including Antisocial Personality Disorder.
152Dr. Wilkie conceded in cross-examination that the length of sentence that Mr. Marshall still has in front of him, before the imposition of a sentence on this the predicate offence, creates problems in predicting his circumstances by the time they will become relevant. For example, the Violence Risk Appraisal Guide test that she applied to Mr. Marshall, intended to assess his likely recidivism for violent offences, has no predictive ability beyond 10 years.
153There is no real basis, under any of the tests that Dr. Wilkie applied to Mr. Marshall, to predict the extent to which his character will have changed by the relevant time, or his likely risk of recidivism at that time, since this requires prediction beyond 10 years. The circumstance is necessarily one of uncertainty.
154Dr. Wilkie acknowledged having seen and reviewed Dr. Pearce's report. Dr. Wilkie and Dr. Pearce are colleagues who work together at CAMH. It was plain from their testimony that they have a great deal of respect for each other's work and opinions. Dr. Wilkie testified that she understood Dr. Pearce’s perspective. That perspective is that as the distance increases from the time of the sentencing hearing to the time when the potential sentence becomes operative, where that period exceeds 10 years, the predictive ability of the forensics psychiatrists becomes increasingly uncertain.
155As the period of detention that precedes the sentence for the predicate offence increases, the uncertainty of the risk assessment also increases materially. The predictive value of the various instruments—as helpful as they may be in circumstances where the offender is on the verge of being released, or will be released within a period of 10 years—declines substantially when the applicable horizon is out past 10 years, or as in this case, 15 years into the future, or longer.
156Dr. Pearce noted in his report that expert opinions and predictions of future risk, assume that the offender’s release is imminent. The risk assessment parameters are geared towards the offender’s behaviour in the community, as opposed to in a penal institution. There are some risk variables that would still apply within an institutional context, but the focus of the forensic psychiatrists’ predictive ability is generally focused on behaviour within the community. The reason is simple. There will always be a greater risk set of destabilizing effects on the offender present in the community than will be present within an institutional setting.
157On the Psychopathy Checklist Revised, scores above 25 are indicative of "significant risk.” The score at that level reflects a high degree of psychopathic traits. In her testing of Mr. Marshall, Dr. Wilkie scored him at 24, one point below the level that she testified is indicative of significant risk. Once again, however, the value of this assessment becomes questionable and unreliable if there will be an intervening period of more than 10 years before the sentence for the predicate offence becomes operative.
158There is one further aspect to Mr. Marshall's institutional history that is relevant to trying to predict the risks he presents to the community when he may ultimately be released. That simple fact is that Mr. Marshall has had very little treatment programming available to him for the past five years because he has continued to be held in custody in a pre-trial remand facility, rather than in a federal penitentiary where much more extensive programming and training is available. Mr. Marshall will have 10 years—or maybe more—of access to this programming.
159In summary, although Dr. Wilkie's testing confirmed in her mind that Mr. Marshall remains an offender who is at high risk of violent recidivism, she acknowledges, as did Dr. Pearce, that their ability as forensic psychiatrists to accurately predict behaviour and likely levels of risk out at thresholds of 15 or 20 years is markedly diminished.
160Frankly, it is diminished to the extent that, at least in my view, and with great respect to both sets of counsel, it could never form the foundation for a judge to be satisfied beyond a reasonable doubt that the level of risk presented by the offender relevant at the time that the sentence being imposed takes effect meets the requirements of the dangerous offender definition and section 752.3 of the Code.
(iv) Conclusion
161Given the limits of the psychiatric evidence, as effectively conceded by both expert forensic psychiatrists, in my view it is impossible, on the Crown’s application to have Mr. Marshall declared a dangerous offender, to find beyond a reasonable doubt that Mr. Marshall will constitute a threat to the life, safety or physical or mental well-being of other persons when this sentence will begin to run, that is, in fourteen or fifteen years’ time when the sentences he is currently serving come to an end.
162Mr. Marshall will not be declared a dangerous offender.
Findings on the Long-Term Offender Criteria
163Having found that Mr. Marshall is not a dangerous offender within the statutory tests, I turn to the question of whether he should receive a determinate sentence or be found to be a long-term offender and receive a determinate sentence imposed together with an LTSO, as contemplated in ss. 753(5) and 753.1.
164Section 753(5) provides that, having declined to designate Mr. Marshall a dangerous offender, I may consider whether he should be designated a long-term offender.
165Section 753.1 provides the test for determining whether an offender should be designated a long-term offender. It reads in relevant part as follows:
753.1 (1) A court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that
(a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;
(b) there is a substantial risk that the offender will reoffend; and
(c) there is a reasonable possibility of eventual control in the community.
166To answer these questions I have considered his circumstances, his risk of reoffending, and the evidence relative to treatability, all of which inform that determination. I have also referred to the scoring results that Dr. Wilkie found in her assessment of Mr. Marshall using the actuarial, psychiatric and psychological instruments that she relies upon to determine the presence of psychopathy and the risk an offender presents to reoffend.
Sentence on the index offences
167The first requirement for determining whether an offender should be designated a long-term offender is that it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted. This requirement is met in Mr. Marshall’s case.
168Mr. Marshall’s co-accused, Mr. Sadykov, who was the other principle, received an effective sentence of two and a half years, to be served consecutively to his other sentences: R. v. Sadykov.23 I gave him a sentence of five years, half of which I ordered concurrent and half consecutive. This approach was available to me through application of the totality principle. The Court of Appeal upheld the effective sentence, but found that rather than splitting the sentence, I should have imposed only a two-and-a-half-year sentence, consecutive, and omitted a stipulated concurrent component, holding that a single sentence could not legally be split in this way.
169The circumstances of Mr. Marshall’s and Mr. Sadykov’s offending is virtually identical. They are both principals of the same offences. Taking into account the principle of parity, Mr. Marshall’s circumstances outlined in detail above, the totality principle, and all the other principles of sentencing, I find that the same sentence of two and a half years consecutive to the sentences he is already serving is appropriate.
170As such, I sentence Mr. Marshall to a net determinate sentence of two and a half years for the index offences.
Substantial risk
171The law is not yet settled with respect to the exact type of reoffending contemplated in s. 753.1(1)(b), but it likely requires a substantial risk of violent reoffending, and of further commission of serious personal injury offences: see R. v. Pilon24, at para. 9; Guidon c. R.25 Subsection 753.1(2) sets out criteria that, if met, demand a finding of substantial risk. However, they all involve sexual offences, and so are not applicable in this case: see R. v. Ryan26.27
172The substantial risk threshold is lower than the “high likelihood of harmful recidivism” required to designate an offender as dangerous.
173I find that Mr. Marshall’s history and the evidence of Dr. Wilkie clearly establish that there is a substantial risk that Mr. Marshall will reoffend violently.
Eventual control in the community
174The third requirement, that there be a reasonable possibility of eventual control in the community, does not impose a burden on either the Crown or the defence. Rather, it imposes an obligation on the court to satisfy itself that there is a reasonable possibility of eventual control, based on the whole of the evidence: R. v. F.E.D.28.
175Importantly, the eventual control criterion “is not a justification for subjecting an offender to the long-term offender sentencing regime. Rather, it appears to be aimed solely at addressing whether the offender qualifies for a long-term offender designation as opposed to the more onerous dangerous offender designation”: F.E.D., at para. 53.
176As set out in the discussion above about intractability, I have found that there is a reasonable possibility of eventual control in the community in Mr. Marshall’s case. I find that this is more than a mere expression of hope, and is based on the whole of the evidence, including the evidence of Dr. Wilkie and Dr. Pearce.
Disposition
177There will never be no risk relative to an offender’s future conduct once released, given that it is always going to be a prediction about a matter for which there can be no absolute certainty. In the result, notwithstanding his history, as these reasons explain, I am not persuaded that Mr. Marshall is a dangerous offender as defined in section 753(1)(a)(i) or (ii) of the Code. Psychiatry does not permit us, at this point, to predict whether Mr. Marshall will still be dangerous when the sentences he is serving run out. As such, I cannot determine that his conduct is intractable.
178Further, and even if I have erred in reaching that conclusion and Mr. Marshall was considered to be a dangerous offender, I am satisfied in any event as required by s. 753(4.1), based on the evidence adduced during this hearing, that the public can be adequately protected against the commission of another serious personal injury offence by this offender with a determinate sentence followed by an LTSO.
179I find in this case that it is appropriate to sentence Mr. Marshall to a term of incarceration and to designate Mr. Marshall as a long-term offender under s. 753.1(1). I am satisfied that the safety of the public will be adequately protected by the imposition of an LTSO of 10 years’ duration, pursuant to s. 753.1(3), to commence upon the completion of a further two and a half years of imprisonment, consecutive to the sentences Mr. Marshall is currently serving.
180Having concluded that Mr. Marshall is an appropriate candidate for an LTSO, I agree with Dr. Wilkie’s opinion that his treatment plan should consist of the following elements:
(i) Mr. Marshall should access and complete programs during a period of incarceration, including programs to address cognitive skills, anger management, antisocial attitudes and the identification and understanding of his risk cycle. He should continue with program involvement upon any eventual release into the community. In order to improve his responsivity to proposed interventions, motivational interviewing may be helpful during the initial phases in the treatment process.
(ii) Mr. Marshall should be subject to intense case management and supervision upon any eventual release into the community, including initial residential placement in a correctional facility, with privileges for unsupervised time away from the facility being earned through demonstrated compliance with programs and supervision, subject to any finding by the Supreme Court of Canada that such a placement cannot form part of an LTSO.29 A release should take place on a gradual basis, allowing for rapid intervention should he fail to comply with conditions. Mr. Marshall’s whereabouts when outside the facility should be subject to verification and supervising officers should make regular visits if he is residing outside of a correctional facility. There should be clear communication with Mr. Marshall about the behavioral expectations during any period of supervision.
(iii) Engagement in structured activities, including employment, should be a mandatory condition of any contemplated release.
(iv) Mr. Marshall should be prohibited from having contact with any criminally oriented, or substance abusing, peers outside of correctional facilities. He should be prohibited from possessing any weapons.
181I would make one final recommendation in this case, one I hope the Parole Board will consider as Mr. Marshall approaches the end of the sentences he is presently serving, and the determinate sentence in this matter and the LTSO order are about to commence. Given the deficiency of the psychiatric evidence in this case that is able to look into the future with reliability, I have found, based on the current circumstances, that a 10 year LTSO was called for, but I freely acknowledge that by the time it becomes operative, Mr. Marshall may have shown great progress and a seriously reduced risk of re-offending, or he may not. It is open to the Parole board to set the terms and operative framework for Mr. Marshall’s LTSO order. However, it seems to me that it will be very difficult, if not impossible to know exactly the person they are dealing with at that time, absent a further psychiatric assessment that is current and takes account of his circumstances at that time. I see no provision of the Code that specifically permits me to order such an assessment at that time, so will instead indicate that it is my strong wish and hope that such a further psychiatric assessment of Mr. Marshall will be carried out in ten to fifteen years time, coincident with the time when the terms of his LTSO order are being designed.
182Finally, I wish to thank both counsel for their efforts. Both the Crown and the defence were well represented on this application.
183As this will be the last time I expect to have you in my court, after a long process, I also wish to express some thoughts to Mr. Marshall himself. I wish first to thank you, Mr. Marshall, for your co-operative conduct and demeanour throughout these proceedings. I have imposed on you the same net determinate sentence that was imposed on Mr. Sadykov and upheld on appeal. However, the risks you present at this time also require that I subject you to a long-term supervision order for the protection and safety of the public. That is a process that could see you reintegrated into Canadian society as a law abiding citizen if you take the steps during the term of imprisonment that you were serving before this application was brought, and that remains in front of you, to train yourself in a trade, perhaps carpentry as you have wished in the past. But it will also require you to make a commitment to taking all possible training and courses that will equip you for that transition when it comes.
Michael G. Quigley J.
Released: June 29, 2018
COURT FILE NO.: CR-15-30000418-0000
DATE: 20180629
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
BEVON MARSHALL
Reasons for Judgment
Michael G. Quigley J.
Released: June 29, 2018
Footnotes
- R. v. Sadykov, 2018 ONCA 296.
- Kienapple v. R., 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.
- 2017 ONSC 4023.
- R. v. Currie, 1997 CanLII 347 (SCC), [1997] 2 S.C.R. 260, Neve, supra, and Pike, supra, at para. 29.
- R. v. Szostak, 2014 ONCA 15, 306 C.C.C. (3d) 68.
- R. v. Hogg, 2011 ONCA 840, at paras. 38, 39.
- R. v. N. (L.), 1999 ABCA 206, 137 C.C.C. (3d) 97.
- R. v. Pike, 2010 BCCA 401, 260 C.C.C. (3d) 68.
- R. v. Dow, 1999 BCCA 177, 134 C.C.C. (3d) 323.
- R. v. Newman, (1994), 1994 CanLII 9717 (NL CA), 115 Nfld. & P.E.I.R. 197 (Nfld. C.A.).
- R. v. Langevin (1984), 1984 CanLII 1914 (ON CA), 45 O.R. (2d) 705.
- See R. v. Merrifield, 1991 CarswellOnt 1711 (Ont. Gen. Div.), at para. 14.
- 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309.
- Newman, supra, at para. 73.
- Currie, supra.
- Ibid. at para. 42
- R. v. Driver, 2000 BCSC 69, at paras. 31-33.
- Pike, supra, at paras. 76-77.
- Neve, at para. 109.
- Ibid, at para. 110.
- (1984), 1984 CanLII 1914 (ON CA), 45 O.R. (2d) 705.
- Hogg, supra, at para. 40.
- 2018 ONCA 296.
- 2010 ONSC 162.
- 2008 QCCA 1445.
- 2017 ONCA 334, at para. 11
- R. v. Weasel, 2003 SKCA 131, 241 Sask.R. 161, Guidon, and R. v. McLean, 2009 NSCA 1, clarify that this is not the only route to finding that there is a substantial risk that the offender will reoffend. A long-term offender designation may flow from serious personal injury offences and a risk of non-sexual violent reoffending. The Ontario Court of Appeal has upheld long-term offender designations where the underlying offences were violent, non-sexual offences, such as aggravated assault: see e.g. Ryan.
- 2007 ONCA 246, at paras. 50-55.
- The constitutionality of these provisions is uncertain, and is on reserve with the Supreme Court of Canada. The issue was addressed in recent arguments in R. v. Bird, out of the Saskatchewan Court of Appeal. This is not to say that they are unconstitutional, and the case may be decided purely on the basis of the law of collateral attack, however, I have inserted this caution to address that possibility.