Court File and Parties
COURT FILE NO.: CR-16-2909 DATE: 2018-10-05
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – Brian Morgan-Baylis
Counsel: Heather McIntyre, Brian White, for the Crown Ken Marley, for the Defendant
Heard: May 14, 17 & 18, 2018; July 23, 25 & 26, 2018; August 7, 9, 13 & 14, 2018
REASONS FOR JUDGMENT
THOMAS RSJ:
Introduction
1Brian Morgan-Baylis (Morgan-Baylis) is 36 years of age. His first offence was at the age of 14. He has acquired 56 convictions since then without taking into account the predicate offences. His full record is attached as Appendix “A” to this decision. Many of the offences are breaches of court orders, whether recognizance or probation orders. However, there are multiple convictions for assaults and uttering threats.
2The Crown seeks to have Morgan-Baylis declared a dangerous offender and relies upon the prolonged assault upon Deana Hallett (Hallett) on February 21, 2016.
3On December 16, 2016, Morgan-Baylis was convicted of eight offences all related to the victim Hallett. There were convictions of aggravated assault (s. 268), five convictions of assault with a weapon (s. 267(a)), utter threats (s. 264.1(1)(a)), and counselling to commit suicide (s. 241(a)). Two Counts of assault with a weapon were stayed by the operation of the principle in R. v. Kienapple, [1975] 1 S.C.R. 729.
4The Crown’s position is that Morgan-Baylis should be found a dangerous offender pursuant to s. 753(1)(a)(i)(ii) and (iii) of the Criminal Code and that I should conclude that an indeterminate sentence must be imposed (s. 753(4)(a)).
5As is regularly the case in this type of proceeding, the evidence here was voluminous. I have the records of Morgan-Baylis’ interactions with the Children’s Aid Society (CAS), probation, Ontario Disability Support Program (O.D.S.P.), provincial custodial records, psychiatric and psychological assessment records, informations, witness statements and transcripts related to his previous convictions. In addition, I have the assessment of Dr. Mark Pearce dated July 29, 2017 prepared for this proceeding pursuant to s. 752.1 and a verbal update of that report which formed part of Pearce’s evidence.
The Predicate Offences
6In my trial judgment, I found that Morgan-Baylis and Hallett were part of a group of acquaintances that used drugs together and that their drug of choice was crystal methamphetamine. At the time of the offences, Morgan-Baylis’ stepfather was moving out of an apartment on Park Avenue East in Chatham. He was in the process of being evicted and over that weekend, he allowed Morgan-Baylis, Hallett and another of the group to stay there.
7From Saturday, February 20, 2016 to Sunday morning, February 21, 2016, Morgan-Baylis, on his own evidence, consumed 14 beers, methamphetamine and cocaine.
8I found that Morgan-Baylis wanted Hallett out of the apartment but she was not inclined to leave. In my judgment, I rejected the defendant’s evidence on what took place and found the following at paras. 119 – 126 of my judgment.
119Morgan-Baylis had drunk a large quantity of beer. It is unclear to me whether the four to five hour assault, as described by Hallett, is accurate. She agreed it was an estimate. I am sure it seemed like a very long period of time to her. It was clearly long enough to leave breaks, abrasions and contusions over much of her body.
120I find, as well, that in accordance with Hallett’s evidence, Morgan-Baylis was smoking methamphetamine with Jerry Summerfield during the course of the assault. He threw her to the floor, punched, kicked, spat upon her and choked her.
121I accept he beat her about the body with the steel weight bar Dana Redding had placed in the corner of the living room to move to his new apartment. It would be impossible for Hallett to recall where all the blows landed, just as it would be impossible, after this beating, to describe the chronological order of the various abuse. Her severely fractured right forearm and the deep bruises on her left shoulder and both hips are not inconsistent with strikes with this weapon. The limited flecks of blood found by Dr. Claxton on the weight bar do not detract from the strength of Hallett’s testimony.
122I find Morgan-Baylis cut her left upper arm with a razorblade as Hallett describes. The wound is chronicled by the medical records and the relevant photographs.
123Again, I acknowledge that expert examination did not locate female DNA on any of the razorblades seized, however, I accept the description of the cutting offence by Hallett and that it left a significant cut on her left arm which she identified.
124I find that with a lighter, Morgan-Baylis burned her left forearm, consistent with the injury Hallett identified on the photographs and consistent with the identification of the nurse, Terry Dejonge. I do not find the testimony of Dejonge biased in any way, as argued by the defence, nor do I find it significant that her head-to-toe inspection of Hallett documented injuries not noted by Dr. Wheeler.
125I find that Brian Morgan-Baylis brought a razorblade into the bathroom and instructed Hallett on how to effectively cut her wrist while he said, “You do it or I’ll do it”. I also find that he assisted her in stopping the bleeding from her forehead and told her to get out of the bathroom and go back to the couch.
126Finally I find that, at some point during the assault, he incorporated the use of a fork while not puncturing the skin of Deana Hallett, and that he poured alcohol over her head, at least in a show of setting her on fire. In all, I find this was a demeaning exhibition of dominance over a helpless female who had angered him.
9During the course of what I find to be a lengthy period of abuse, Morgan-Baylis threw Hallett to the floor, punched, kicked, spat upon her and choked her. He beat her about the body with a steel weight bar severely fracturing her right forearm and leaving deep bruises on her left shoulder and both hips.
10Morgan-Baylis cut her left upper arm with a razorblade. He burned her left forearm with a lighter. He took her into the bathroom and provided instruction on how she should cut her wrists with the razorblade saying, “You do it or I’ll do it”. He poked her with a fork. He poured alcohol over her head as a show that he intended to light her on fire.
11At para. 126 I made this finding:
In all I find this was a demeaning exhibition of dominance over a helpless female who had angered him.
12At the time of the predicate offences, Morgan-Baylis was bound by two probation orders arising from convictions for assault, threats and mischief, the victim being a female he had briefly dated. Further there were two Counts of breach of probation.
Criminal Antecedents
13As mentioned in my Reasons released May 15, 2018 many of Morgan-Baylis’ prior convictions are supported by transcripts which contain the facts supporting the convictions. The earlier convictions however are documented only by the content of informations, police synopses, witness statements and probation orders. In the latter body of convictions the Crown has sought to convince me of the ultimate reliability of the supporting information by calling on the police officers and probation officers who were involved in the relevant investigations. I turn to that evidence now.
(a) Assault – September 12, 2003
14On July 11, 2003 Constable Letourneau was called to the Women’s Centre to meet with Sonia Beaul who reported an assault by Morgan-Baylis approximately a week before. She described being punched in the right arm and both thighs and exhibited bruises in those areas. Photographs show those injuries. She told the officer that Morgan-Baylis had been drinking.
15At almost the same time as the guilty plea to this offence, Beaul wrote to the Crown recanting and advising she had been bruised playing soccer and was not assaulted by Morgan-Baylis. Morgan-Baylis was sentenced to seven days in jail after four days pre-sentence custody and 16 months’ probation.
(b) Obstruct Peace Officer – April 14, 2004
16Morgan-Baylis entered a guilty plea to this offence. He was sentenced to one day in jail with credit for his five days of pre-sentence custody. Constables Lunn and Agar testified that they were called to an apartment because of a disturbance. Morgan-Baylis answered the door exhibiting bloody scratches on his neck. Two females were heard arguing inside. One was later identified as Sonia Beaul.
17Constable Lunn tried to enter the apartment but was blocked by Morgan-Baylis. A brief struggle ensued and Morgan-Baylis was arrested for this offence. It would seem the females were both interested in Morgan-Baylis which lead to the disturbance and his neck injuries. It seemed reasonable to the officer that Morgan-Baylis did not want police to enter and then arrest Beaul for assaulting him.
(c) Mischief, Breach of Undertaking, Assault – April 14, 2004
18Morgan-Baylis plead guilty to the above offences and on that date he was sentenced to a total of 90 days in jail with a further 18 months’ probation.
19Constable Cornish testified that he investigated an incident involving Sonia Beaul and Morgan-Baylis. It seems on April 10, 2014 Morgan-Baylis was upset about Beaul spending time with a friend. He attended at her residence. He had been drinking. He entered while she was not at home and slashed cushions and a mattress and smashed her television. He was arrested by officers.
20Beaul then provided a videotaped statement to police that described an assault upon her several weeks before where Morgan-Baylis had been drinking and after arguing he just “snapped”. He kicked at her legs and punched her arm. She believed he was becoming more violent.
21It was this officer’s evidence that it was clear Morgan-Baylis and Beaul had been living together throughout this period despite a non-association probation condition. It was equally clear that Beaul was consenting to this arrangement until renewed violence occurred.
(d) Utter Threats, Mischief, Breach of Probation – December 14, 2004
22Morgan-Baylis entered guilty pleas to these offences. His sentence to run concurrently. He received 60 days in custody after a credit for 109 days of pre-sentence custody and two years’ probation.
23Constables Muir and Stokes testified. Constable Muir attended 86 Baxter and spoke to Lisa Beaul, the mother of Sonia Beaul. He saw damage to a window of the residence and blood on the entrance steps. He was told Morgan-Baylis caused the damage when he looked for Sonia Beaul and that he had told Lisa Beaul that “when I find her she is as good as dead.”
24Subsequently Morgan-Baylis was found by Constable Stokes at his residence and arrested without any resistance. He was intoxicated and was taken to hospital for treatment. At the hospital Morgan-Baylis uttered another death threat to Sonia Beaul which was heard by the officer.
(e) Mischief to Property – January 22, 2009
25On the above date Morgan-Baylis entered a guilty plea to this offence. He was fined $1,000.00 and placed on probation for 12 months. Constable McVicar testified that she attended 86 Baxter Street in Chatham and found Morgan-Baylis tearing siding from the residence. He had caused other damage. The value of the damage was unknown. Morgan-Baylis clearly was in a dispute with the owner of the property regarding work done there. Morgan-Baylis was intoxicated and surrendered upon police attendance.
Other Offences Commencing 2010
26Commencing in 2010 the vast majority of the offender’s criminal convictions are supported by transcripts on guilty pleas. In those instances it is clear what facts were accepted by the accused to substantiate the commission of the offences.
27The offences without exception are committed after Morgan-Baylis had consumed alcohol, often to the point of obvious intoxication. There are multiple convictions where the accepted facts support breaches of probation and recognizance by alcohol consumption, prohibited association and failures to report. The violent offences where transcripts are available are itemized below.
(a) June 10, 2010 – Resist Peace Officer
28Police responded to a call at the offender’s residence. Morgan-Baylis was present in his driveway and called police on to fight. He adopted a fighting stance and approached police. He was tasered by police and continued to struggle and kick until he was subdued.
(b) May 13, 2011 - Assault
29Morgan-Baylis and the female victim had been dating for three weeks. At the time of this incident the offender had consumed 12 beers. An argument ensued. Morgan-Baylis kicked the victim in the head, striking her left cheek.
(c) November 21, 2011 – Resist Arrest
30Police were called to the residence of a female party who reported an intoxicated Morgan-Baylis was attempting to enter her residence. Upon arrival the offender commenced screaming at police to get out of their vehicle and fight him. He was holding a beer bottle behind his back. He was pepper sprayed when he advanced on the officer and continued to struggle once on the ground.
(d) March 4, 2013 - Assault
31The offender assaulted his mother, Bonnie Baylis, by punching her. He was intoxicated and would not leave her residence. Police attended and took Ms. Baylis to the hospital where she received four staples to close a wound to her head.
(e) June 13, 2013 - Assault
32Despite a probation order from the previous offence Morgan-Baylis attended his mother’s residence. There was some consumption of alcohol and then after an argument he head-butted Bonnie Baylis causing bruising and abrasions to her face.
(f) September 5, 2014 - Assault
33While travelling in a motor vehicle with another female with whom he had been in a brief relationship, Morgan-Baylis became angry. He spit in the victim’s face, uttered a death threat and then smashed the windows of her vehicle.
(g) March 3, 2015 – Assault, Utter Threats, Mischief
34Morgan-Baylis attended the residence of the female victim of the above incident despite a court order prohibiting it. He had been drinking. He threw a brick through a large window in her home and threw a beer bottle at the window of her vehicle. He pushed the victim up against a brick wall causing her to strike her head and threatened to “fuck up her shit.”
(h) November 23, 2015 – Utter Threats
35The victim in this matter is another female with whom Morgan-Baylis had a relationship of approximately three weeks. He had been drinking when he attended at her property at night after he had been advised to leave. He smashed a mirror and uttered three separate threats to her and her property.
Conclusions on Antecedent Offences
36As to the Crown’s proof of the criminal convictions, I am content that there is proof beyond a reasonable doubt for those facts provided by either the witnesses or the transcripts. I accept the evidence of Sonia Beaul that when she reported assaults and threats by Morgan-Baylis she was telling the truth. The certified copies of the informations and the related documentation including the probation orders provided proof of at least the offences where convictions were registered including the facts contained in each Count of the information and the identity of any victim. The reliability and authenticity of the records is as well supported by the affidavit of Detective Cathy Graham, lead investigator on this application and charged with the task of accumulating the records.
37I will not look behind those registered convictions at this point. While I acknowledge that several of the victims appear to have condoned his association with them from time to time, their condonation provides no excuse for the criminal conduct of the offender.
Prior Community Supervision - Probation Records
38Morgan-Baylis accumulated 16 separate probation orders. Two of these orders originated in 1996 and 1997 pursuant to the Young Offenders Act. The balance as an adult started on June 6, 2001 and ended with the order of November 23, 2015. He has been in custody since February 24, 2016.
Bernard Kearns
39Bernard Kearns supervised Morgan-Baylis on his first two probation orders June 7, 1996 and June 26, 1997. Morgan-Baylis was 14. The issues which would haunt the offender for the next two decades were already present.
40Morgan-Baylis had a learning disability. Academically he was operating at a level far below his chronological age. His father had passed away a few years before. He had seen abuse in his home. He had not been attending school. He had assaulted his mother and girlfriend. Anger control and dealing with authority figures were ongoing issues.
41Kearns worked to have him admitted to a basic level program at high school. He never attended. His assault on his mother lead to his eviction and his taking up residence with his girlfriend Sonia Beaul. She was now the mother of his first child. They were 14.
42Mr. Kearns recalled that the offender received little support or guidance from either his family or the Beauls.
Warren Chambers
43Warren Chambers was the probation officer who supervised Morgan-Baylis for one year commencing upon his mischief conviction in 2009. Initially Mr. Chambers felt the supervision went well. Morgan-Baylis indicated he recognized his anger and alcohol issues. He reported and attended one session of the Changing Ways alcohol program offered onsite by Kim Ross.
44It seems things broke down quickly and six months into the order Chambers had lost contact. Morgan-Baylis attended only that one session for alcohol counselling. He never attended the PARS program for domestic violence. He failed to report to probation four times. He continued to contact Sonia Beaul contrary to the conditions of his probation order.
45It was Mr. Chambers’ opinion that while Morgan-Baylis paid “lip service” to the concept of compliance while in the office, he ultimately did whatever he wanted without regard to his court ordered conditions.
46He did not discuss the use of Antabuse with Morgan-Baylis or other forms of counselling. It was Chambers’ opinion that Morgan-Baylis never committed to programming long enough to progress to those conversations or to allow for a referral to health services for any discussion regarding medication. He did not possess any information that lead him to believe Sonia Beaul was facilitating breaches by contacting Morgan-Baylis.
Catherine Norris
47Catherine Norris was the supervising probation officer for Morgan-Baylis’ last two probation orders. The first order was made part of a sentencing on December 17, 2014 for the assault of a domestic partner and contained the usual non-association and counselling conditions that had bound Morgan-Baylis for over a decade.
48The second order related to eight convictions for breaches of probation, mischief and threats involving another female victim. That order was a product of a sentencing on November 23, 2015.
49Morgan-Baylis served a jail sentence with the first probation order and did not report though scheduled after his release on April 20, 2015. A warrant was issued on May 20, 2015. He was arrested and released. He finally reported to his assigned supervisor on June 8, 2015.
50It is clear through the summer of 2015 Morgan-Baylis reported to Ms. Norris but his response to the balance of his conditions was poor. Discussions took place about an application for funding for individual domestic violence counselling. He refused to meet with a Canadian Mental Health Worker, refused assistance to arrange housing and find a family doctor and missed appointments with in-house addictions counsellor Kim Ross. He maintains his victims were contacting him despite the court order and complained the police were harassing him.
51During her probationary periods, Ms. Norris completed a Level of Service Inventory (LSI) and two Ontario Domestic Assault Risk Assessments (ODARA). The scoring suggested Morgan-Baylis to be a high risk of further offences especially violence against domestic partners.
52He was back in the Southwest Detention Centre on September 3, 2015 and released January 3, 2016. While there he completed some programs for substance abuse and life skills.
53On January 4, 2016 Morgan-Baylis was arrested on a breach of an alcohol condition and was placed back in custody. On January 8, 2016 he reported for the first time on the second probation order that Ms. Norris was supervising. He was angry at police. He was referred again to Kim Ross for substance abuse counselling. The last time Norris met with the probationer was February 24, 2016. He was still minimizing his substance abuse issues and was continuing his same lifestyle. He was arrested in the probation office for the index offences.
54Ms. Norris agreed that any attempts at effectively supervising Morgan-Baylis and making any progress with rehabilitation were hampered by his periods back in jail. During those periods she had no contact. Although still on probation she has not seen him since that last office attendance about 30 months ago.
55It is clearly the position of Ms. Norris that different forms of programming for both substance abuse and domestic violence could not be explored due to his continued incarceration and lack of commitment to change.
Susan Kent
56Susan Kent is the supervisor of the Chatham Probation and Parole Office. She was taken through the case notes and probation orders that bound Morgan-Baylis as an adult. She also supervised Morgan-Baylis in 2011. Her last meaningful contact was in December 2014 when she authored a pre-sentence report and passed Morgan-Baylis on to a new probation officer.
57Much of her evidence concerned the content of others case notes. These records were part of a large body of material which passed threshold reliability as trustworthy, reliable and business records. With respect to these records, while they cannot help me with the issues of the offender’s motivation or excuse, they are accepted by me as accurate in their description of the steps recounted and the context of conversations between the officers and the probationer.
58By the time Morgan-Baylis finished his contact with Susan Kent, he had accumulated 11 convictions for breach of his probation orders and 9 convictions for failing to comply with recognizance.
59The case notes make it clear that Morgan-Baylis had significant alcohol abuse issues and likely used drugs from time-to-time as well. Alcohol was seen as a trigger for his violent offences. Domestic partners seemed to attract his violent attention and three separate female victims figured into his offences during this time period. He also seemed unable to stay away from them despite being bound by non-association conditions.
60As mentioned, his first adult convictions were in 2001. At that time, he had been charged with assault on a domestic partner and he had then uttered a threat and contacted her, contrary to his recognizance. Ultimately, he received a short jail sentence on the assault.
61From that point, Morgan-Baylis was regularly committing offences. His probationary conditions required him to attend for substance abuse and anger-management counselling. His attendance at counselling was sporadic. The supervising probation officers regularly appraised him as showing no real commitment to recognizing his problems or committing to change (the pre-contemplative stage of change). He complied with court orders only occasionally.
62A risk assessment was conducted in July 2004. He was found to be a very high risk to recidivism. He was placed in the Intensive Supervision Stream which meant he needed to report to probation a minimum of twice per month.
63His probation supervisor at the time noted that he was not motivated to attend counselling and could not stop associating with his former partner, Sonia Beaul, and that the majority of his record to date related to her. Each probation officer after that date indicates that he was not suitable for community supervision.
64The records include a report dated January 24, 2005 from a psychiatrist, Dr. Komer. Dr. Komer’s report was generated because of an incident between the offender and Sonia Beaul’s mother. Dr. Komer concluded that Morgan-Baylis had problems with substance abuse, an antisocial personality, anger-management and relationships. It was his opinion the offender needed to abstain from alcohol and seek counselling for substance abuse and anger management. He concluded that if Morgan-Baylis continued to drink, he was a high risk to reoffend with aggression towards others.
65By 2009, Morgan-Baylis was missing more reporting dates than he was attending. By 2011, he was effectively not attending at all. In Ms. Kent’s closing contact with Morgan-Baylis of December 2014, she says the following:
The offender, age 32, has an extensive criminal record including multiple violent offences such as domestic and non-domestic assaults and uttering threats, as well as numerous court order violations including fail to comply with recognizance, and fail to comply with probation orders. Present offences before the Court are domestic related offences and include Assault, Utter Threats, and Mischief Under $5000.
The offender has been supervised in the past on several periods of community supervision and he has many court order violations on his criminal record. It would appear that community supervision has failed to have a rehabilitative or deterrent effect on his criminal behaviour.
The likelihood of the offender successfully completing a future period of community supervision is guarded, due to the offender’s history of total disregard for complying with court orders, as well as untreated substance abuse and anger management problems for which he has never availed himself to address through counselling during prior periods of community supervision.
66Ms. Kent was cross-examined regarding the suggestion that Morgan-Baylis may have plead guilty to offences related to Ms. Beaul simply to get out of jail and that this lack of acceptance of guilt may have negatively influenced his probation supervision. Further, it was suggested that the schedule for some of the missed dates for reporting might never have been appropriately communicated to Morgan-Baylis. Finally, the defence noted that the offender was being sent back to the same alcohol counselling repeatedly when other options were not being explored. The use of Antabuse as recommended by the s. 752.1 psychiatrist, Dr. Pearce, was never discussed at any time.
67Over this extensive span of probation, I accept that from time-to-time, supervisors may have made mistakes. None of these suggestions, however, diminish the overall picture of an offender with serious alcohol and anger-management issues that was resistant to any meaningful change in his behaviour.
Children’s Aid Society
68The records produced from the relevant Children’s Aid Societies commence in 1980 with contact with Morgan-Baylis’ family. They document concerns about his lack of supervision in the family home. Physical and perhaps sexual abuse were present. There were often poor living conditions. He was struggling academically. He refused to go to school and when he did he acted out. He could not abide by the direction of authority figures.
69In 1996 the focus of the child welfare agency turned from Morgan-Baylis as a child to Morgan-Baylis as a father. This was despite the fact that he was 14. Perhaps predictably the records now documented substance abuse and allegations of threats and assaults on Sonia Beaul. The society workers were regularly involved with the family. There seemed to be little insight into the effect of domestic violence on the children in the home. By 2003 it was recognized that Sonia Beaul would continue to associate with Morgan-Baylis despite non-association conditions put in place to protect her. An entry suggests there would be no issue if he was out of the residence.
70In 2009 it was noted he was out of contact with his family.
Correctional Service Records
71The offender’s criminal record indicates that his first period of incarceration was in 1996 as a youth. He was consistently in custody throughout much of his adult life commencing in 2001. The sentences were short, usually between 20 and 90 days, often for breaches of court orders. His longest period of incarceration, leaving aside pre-sentence custody on the index offences, appears to be on March 3, 2015, where for a variety of offences, he received 108 days in custody after 148 days of pre-sentence custody.
72Perhaps surprisingly, considering his identified anger control and authority issues, Morgan-Baylis has a very limited record of misbehaviour while incarcerated. The records produced to me commence in 2012 at the Chatham Jail and end on May 22, 2018 at the Southwest Detention Centre.
73There are several incidents of possession of contraband, three incidents of altercations of some physical nature with inmates and staff and a few refusals to follow the direction of correction service staff. None of these incidents approach a level of seriousness. These records also document the completion of the programming mentioned elsewhere in these Reasons.
Defence Evidence
(a) Certificates of Programming
74I have certificates from the Deputy Superintendent of the Southwest Detention Centre evidencing completion of eight programs since the commencement of this hearing in May, 2018. These include a five day program for substance abuse. These can be added to the 15 certificates for programs completed from November 8, 2015 to December 4, 2017.
(b) Lisa and Sonia Beaul
75Both these witnesses were clearly reluctant to testify. They had both been victims of previous criminal conduct by Morgan-Baylis. Sonia Beaul as the mother of his three children has been the direct focus of his abuse in the past. They separated for the final time in 2009. Both witnesses have kept in close contact with Morgan-Baylis since then, including telephone conversations since he has been in jail and one personal attendance.
76Sonia Beaul confirmed the accuracy of her past statements to police and the previous assaults upon her linked to alcohol abuse by Morgan-Baylis. Sonia Beaul admitted that despite non-association conditions she and Morgan-Baylis regularly lived together because at the time she loved him.
77Neither witness indicated any fear of Morgan-Baylis for themselves or their families. It is clear both were motivated by the desire of Morgan-Baylis’ 18 year old daughter Tiara to have a relationship with her father. Both witnesses spoke of a positive change they saw in the offender since his detention in 2016; a new calmness and a need to renew a relationship with his children. They called it a “look” and a “tone in his voice.”
78Sonia Beaul was, however, quick to agree that any real change could only be measured when Morgan-Baylis was back in the community. She called it a “leap of faith” on her part.
Dr. Mark Pearce
79Dr. Pearce is a forensic psychiatrist who works primarily at the Centre for Addiction and Mental Health (CAMH). Dr. Pearce performed the s. 752.1 assessment of Morgan-Baylis. He was called as the Crown expert. The defence called no expert evidence.
80Dr. Pearce met with Morgan-Baylis at CAMH on April 13, 2017 for 4.75 hours. He met with him again just prior to his testimony on July 26, 2018 so that he could provide the update suggested by the defence.
81In the preparation of his report of July 29, 2017 he reviewed in excess of 6,000 electronic pages of documents including:
- Material in relation to the index offences, including the Reasons for Judgment;
- Copy of Morgan-Baylis’ criminal record;
- Information from police agencies and courts, including details pertaining to prior criminal offences;
- Medical records; and
- Morgan-Baylis’ correctional records.
(a) Background
82In the updated interview on July 25, 2018, Dr. Pearce found the offender to be in good spirits. He was focussed on programming. He wanted to get back into the community to reunite with his three children. He felt he should be in a time-served sentencing position. He had some loosely formed and perhaps naïve ideas of employment. However, he continued to minimize the index offences and his role suggesting that the victim Hallett had a “fatal attraction” to him. He showed no significant remorse.
83In his evidence, Dr. Pearce reviewed the offender’s school and CAS records to be informed of his childhood history. He noted that Morgan-Baylis was subjected to emotional and likely physical abuse. His father died at age 11. His mother’s reaction to the death made it even worse in that she blamed her son. The offender and his mother had a turbulent relationship which is evidenced by his assaults upon her when he was an adult.
84Dr. Pearce suggested that a significant number of adverse childhood experiences informed his diagnosis that Morgan-Baylis developed an adolescent conduct disorder. He referred to the report of the CAS psychologist, Dr. Crocker, who saw the offender at age 12. Dr. Crocker reported that Morgan-Baylis was the most disturbed child he had seen in 20 years. Dr. Crocker found him very angry with “no fuse” and “volatile aggressive tendencies.” His father had died of a heart attack. His mother blamed him as his father had left the hospital to deal with an issue related to his son. His mother was involved in alcohol abuse, drug abuse and prostitution. He was “dumped” on his grandparents.
85Dr. Pearce stated that his problems with education went beyond discipline and that he was likely dyslexic. Consistent with his later attitude towards his offences he saw his problems at school as the fault of school officials. “I never really skipped. I got sent home if they didn’t like the look on my face or whatever. In their eyes that was truancy.”
86Having withdrawn from school, Dr. Pearce sees his employment history as a strength. He has skills in trades with his hands but his employment was hard to sustain with his substance abuse issues.
87Dr. Pearce reviewed the report of a psychologist, Dr. Svec, completed in January 2014. Dr. Svec was retained by Ontario Works to support the application of Morgan-Baylis for ODSP. Svec found the offender’s I.Q. to be 69 or mildly mentally retarded. Dr. Pearce testified that this surprised him and although he did not do I.Q. testing himself, it was his opinion that Morgan-Baylis had a low average I.Q. of about 80. Dr. Pearce said there was some importance to this as it impacted this offender’s ability to benefit from programming. In all the circumstances including the context of the Svec report, I chose to rely upon Dr. Pearce’s intuitive opinion on this issue.
88Dr. Pearce said there was no real psychiatric history for the offender. He took an antidepressant sporadically for sleep only.
89While the offender admitted issues with alcohol Dr. Pearce suggests he minimized the problem and had limited insight into the depth of the issue. Dr. Pearce noted that Morgan-Baylis indicated he would participate in treatment but that in his opinion the kind of treatment received thus far could only be seen as the beginning.
90Dr. Pearce stated that Morgan-Baylis needed multi-month robust treatment for substances including the use of the drug Antabuse to stop his drinking. He suggested this treatment should start in the secure penitentiary setting offered by Correctional Service Canada and that from there the external controls of a community correctional centre (CCC) and a Long-Term Supervision Order should be imposed.
91Dr. Pearce recommended that the alcohol treatment be conducted in tandem with intensive violence programming so that the offender could recognize that alcohol was his trigger to violence. He suggested the offender had a cognitive distortion which allowed him to minimize his conduct.
92Dr. Pearce reviewed the psychiatric report of Dr. Komer prepared in 2005 and in evidence here. Dr. Pearce agreed with Dr. Komer’s diagnosis of substance abuse with an anti-social personality disorder (ASPD). Dr. Komer had opined that Morgan-Baylis lacked any real community support and while he committed to treatment while in custody his interest waned upon his release.
93Dr. Pearce found positive the number of programs completed since 2016 while the offender was in custody. Also positive was his lack of any real significant issues in the last two years of custody which he found impressive despite the offender’s ASPD.
(b) Diagnosis
94Dr. Pearce provided a diagnosis of two disorders as set out below:
- A very serious, treatment resistant polysubstance abuse disorder with the abuse of cocaine and methamphetamine but predominantly alcohol. He incurred most criminal charges while intoxicated.
- A conduct disorder as an adolescent which had developed into an antisocial personality disorder (ASPD). He has all the essential features for this diagnosis including failure to conform to social norms, deceitfulness, aggressiveness, lack of empathy or remorse.
95Both diagnoses would benefit from longitudinal intensive programming with external controls in place for a significant period. The potential success of alcohol treatment significantly increased with use of Antabuse. There is, however, little evidence to suggest persons with ASPD benefit from treatment or are capable of personality change. Treatment focuses on anger management, social skills and vocational training.
(c) Risk Assessment
96Dr. Pearce said all risk assessment tools are moderately successful in predicting future violence. However in an attempt to estimate Morgan-Baylis’ likelihood of violent recidivism he was scored on four tools; the PCL-R, VRAG, DVRAG, and HCR-20.
97The scoring on the PCL-R left him short of a diagnosis of psychopathy but was still significant. On the VRAG (violent reoffending) he scored at a level suggestive of a high risk of violent re-offending. On the DVRAG (domestic violence reoffending) he scored at the highest level possible. The HCR-20 is a twenty item structured risk assessment tool to assess the risk of future violent behaviour in criminal and psychiatric populations. On the last tool he was a high risk of future violence.
98It is to be noted that these scores assume release into the public absent significant interventions or controls.
99Dr. Pearce came to the following conclusion regarding his risk assessment of Morgan-Baylis:
In addition to addressing the issue of probability of future violence, risk assessment also involves speaking to imminence, frequency, and severity of re-offence. In these domains, we are left with clinical judgment alone. Future victims would most likely be domestic partners, followed by police officers; any use of substances would dramatically increase the risk of recidivism. At times, Mr. Morgan-Baylis has imminently and frequently offended but he has also managed to avoid violent offence for years in a row. The majority of his assaults were towards the less severe end of the spectrum, excluding the index offences. Overall, there’s the potential for this gentleman to recidivate imminently and frequently. He may also commit a serious offence.
In conclusion and taking into account the aforenoted actuarial and clinical risk assessment in addition to this gentleman’s PCL-R score, it can be concluded that Mr. Morgan-Baylis is in a high risk category for violent recidivism.
(d) Criteria for Dangerous Offender – Long-Term Offender Status
100It is clear the Crown seeks a declaration that Morgan-Baylis is a dangerous offender pursuant to s. 753(1)(a)(i)(ii) and (iii) of the Criminal Code:
(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing
(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour,
(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or
(iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint;
101Dr. Pearce made it clear that his opinion was from a psychiatric perspective and that as such it might be of limited value to the Court in this assessment. Having said that, Dr. Pearce offered that Morgan-Baylis could be found to fall into all three of these subsections.
102He summarized Morgan-Baylis’ violent offences in the chart below found at page 39 of his report:
| Year | Charge | Victim | Relationship | Circumstances | Substance Abuse |
|---|---|---|---|---|---|
| 2003 | Assault | Sonia Beaul | Partner | Struck victim | Intoxicated |
| 2004 | Assault | Sonia Beaul | Partner | Punched and kicked her | Likely |
| 2011 | Assault | Diana Handsor | Partner | Kicked victim in the head | Intoxicated |
| 2011 | Resist arrest | Police officer | Police officer | Advanced towards officer | Intoxicated |
| 2012 | Assault | Mother | Family | Choked and punched victim | Intoxicated |
| 2012 | Assault | Mother | Family | Punched victim | Intoxicated |
| 2013 | Assault | Mother | Family | Head-butted victim | Likely |
| 2014 | Assault | R.V. | Partner | Spit on victim | Unclear |
| 2014 | Assault | R.V. | Partner | Pushed victim against a building | Unclear |
| 2016 | Agg. assault | Deana Hallett | Acquaintance | Repeated violence over hours | Intoxicated |
103In these offences, Dr. Pearce found evidence of a pattern of repetitive behaviour, a failure to restrain his behaviour with a likelihood of causing injury, persistent aggressive behaviour with substantiated indifference to the foreseeable consequences. He chose not to offer an opinion on whether the behaviour of the offender in the index offences amounted to the brutality contemplated by subsection (iii) of s. 753(1)(a).
104At page 40 of his report, Dr. Pearce offers this preamble to his position on the suitability of a LTSO:
Of note, it is worth adding that at this juncture, it is not clear to me what length of sentence Mr. Morgan-Baylis may receive for the index offences, and this could impact the opinions offered below. Furthermore, there may be limits to what can reasonably be accomplished by the Correctional Service of Canada, given resource limitations; I have not considered same at this juncture, for several reasons.
The above-noted risk assessment suggests that Mr. Morgan-Baylis presents with a substantial risk of violent recidivism; he is, in my opinion, at high risk of committing another violent offence. From a psychiatric perspective, whether he would be suitable for a Long-Term Supervision Order (LTSO) hinges on whether he can be considered treatable and whether such treatment could be effective to the point that his risk could be managed within the community both while under supervision (and subject to an LTSO) and after the expiry of such an Order.
105Dr. Pearce then looked to whether Morgan-Baylis was treatable. As to substance abuse he stated at p. 41:
…With intense treatment and a prolonged period of monitoring along with compliance with Antabuse, there are some reasons for optimism vis-à-vis this criminogenic variable.
106The more difficult condition was the offender’s ASPD. Dr. Pearce noted the following:
With respect to this gentleman’s personality disorder, the prognosis for same is guarded as treatment for personality disorders is challenging; maladaptive traits are longstanding and thus resist change. Should he be handed a substantial period of time in custody in addition to a 10-year LTSO, he may start to “burn out” (that is, an age-related decrease in the propensity for violence). However, it is difficult to predict who will “burn out” and who will continue to recidivate. If he can maintain abstinence for several years in a row with Antabuse and assertive (CSC-based) follow-up, he may be able to return to work and remain steadily employed. This, in conjunction with aging, may offer some reason for optimism in terms of reducing the expression of maladaptive antisocial personality traits.
107He went on to note that while his response to previous supervision had been dismal he had not had the benefit of being managed by CSC or placed in a community correctional centre (CCC). He found his community support to be weak but his work history an area of strength.
108Dr. Pearce concluded at p. 42 of his report:
In summary and considering the aforenoted factors, there are some reasons for optimism that this gentleman will be manageable following the expiry of a LTSO. I am thus able, from a purely psychiatric perspective, to conclude that there is a reasonable expectation that his risk to the community will be manageable at that point, should he participate in intensive programming while federally incarcerated and then be managed assertively and with Antabuse for the duration of a 10-year LTSO.
109Dr. Pearce then suggested a treatment plan containing seven conditions that presumably would be recommended to Correctional Service Canada as well as the Parole Board as part of a LTSO. I will itemize these conditions later as part of my sentencing order as I adopt them as part of the sentence that I find appropriate.
110For the purpose of this decision, the expert psychiatrist opinion is that Morgan-Baylis could be found a dangerous offender. There is a reasonable expectation the public can be protected if he were to serve a federal sentence lengthy enough to allow for robust treatment for his polysubstance abuse and his ASPD followed by a 10-year LTSO with his recommended treatment plan. Any lesser external controls would measurably increase the risk of a further violent offence.
Sentencing Structure
111The Crown called two witnesses to help inform my analysis on the appropriate sentence. Karen Thomson, employed by the Parole Board of Canada and Shelley Griffith from Correctional Service Canada.
112The witnesses explored the sentencing options from a determinate sentence without a dangerous offender designation (s. 753(5)(b) of the Criminal Code) to a dangerous offender designation with an indeterminate sentence (s. 753(4)(a)). In the midst of that continuum they discussed the effect of a long term offender designation (s. 753.1).
113A person found to be a dangerous offender and given an indeterminate sentence is eligible for parole seven years after his arrest and detention on the index offences. While an indeterminate sentence is not perpetual, of the 657 dangerous offenders serving indeterminate sentences in Canada, 615 were in custody with only 42 on some form of conditional release. The average sentence to a first parole date for these types of sentences was 16.5 years.
114It was also suggested that because of the length of the incarceration, other inmates serving shorter sentences were prioritized for programming before those with indeterminate sentences.
115Where a Long-Term Supervision Order was part of a sentence, the Parole Board of Canada imposed conditions which were reasonable and necessary to manage the offender in the community which could include a residency condition like a CCC. The Parole Board is required to review conditions every 365 days. The Parole Board accepts conditions recommended by the sentencing judge 89 percent of the time.
116If there is a breach, the Parole Board can recommend a charge be laid and Correctional Service Canada can suspend the Long-Term Supervision Order and cause a warrant to be issued. The Long-Term Supervision Order commences on day after the warrant expiry date on the determinate sentence.
117While certain provincial correctional facilities have intensive rehabilitative programs for substances and domestic violence, it is unclear whether an offender who was seen as high risk would be accepted into those facilities.
118Finally, if a Long-Term Supervision Order is to be part of a sentence, there is a recommendation that the offender remain in custody for at least a further 90 days to allow the conditions to be put in place.
Impact of In-Court Behaviour
119I have no doubt that being a detained accused present at trial and then at a lengthy sentencing hearing can be a stressful time. I would be remiss however if I did not reflect on the in-court behaviour of the offender. On several occasions during the trial, Morgan-Baylis was abusive to the witness, profane and verbally uncontrollable. He was antagonistic to the Crown and to the Court. The trial was interrupted on several occasions to allow him to compose himself.
120On one occasion during the trial, he admitted to consuming a drug he had concealed in his rectum while coming from the jail. In addition, it was captured on the cell security video. He became upset on two occasions during the sentencing hearing when the Court was hearing from the expert and a probation officer. On the latter occasion, he became angry when Sonia Beaul was referred to as a “victim”. He refused to sit through any more of the Crown’s case and demanded to return to his holding cell. Subsequently, I ruled at the defence’s request, and pursuant to s. 758(2) of the Criminal Code that Morgan-Baylis remain at the Southwest Detention Centre until the conclusion of the Crown’s sentencing case.
121This in-court behaviour is despite his obvious understanding of the personal significance of the proceeding. It is despite the in-custody programming he has successfully completed. It makes one ponder what sentence could effectively control him in the community and what duration and form of programming is mandated. Finally, it is entirely consistent with the program resistant ASPD diagnosed by Dr. Pearce.
Positions of the Parties
122The Crown as noted seeks a dangerous offender designation for Morgan-Baylis with an indeterminate sentence. Its alternative submission is a 14 year determinate sentence with pre-sentence custody credit and a 10 year Long-Term Supervision Order. The defence submits that a determinate sentence of 30 to 48 months less appropriate credit for his pre-sentence custody is the fit and proper sentence.
Analysis
The Statutory Regime
123Section 753 of the Criminal Code of Canada sets out four bases upon which a person may be designated a dangerous offender. For the purposes of this decision, I need to consider only the three contained in subsection (1)(a). These, to some extent, are overlapping pathways. The Court need only find one pathway to be established then it must declare the offender a dangerous offender.
124While already detailed in para. 100 of this decision, I reproduce the relevant sections below:
753 (1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied
(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing
(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour,
(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or
(iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; …
The Two-Stage Process
125Dangerous offender legislation has a long history in Canada. The modern legislation was enacted in the Criminal Code in 1977. It was revised in August 1997 and then again in July 2008.
126Because of the serious nature of a dangerous offender sentencing, and because of the body of information that is presented on the life of the offender, written sentencing decisions in this area are lengthy and numerous.
127Two recent decisions have proven to be very helpful in this particular task. On December 17, 2017 the Supreme Court of Canada in R. v. Boutilier, 2017 SCC 64 ( Boutilier ), released its decision upholding the constitutionality of s. 753 (4.1). Beyond that finding, the Court provided instructions on the two-stage analysis to be undertaken by the sentencing judge in an application to declare an offender dangerous and on the search for an appropriate penalty.
128In R. v. Spilman, 2018 ONCA 551 ( Spilman ), Watt J.A. considered the sentencing principles in light of Boutilier, particularly as they related to a composite sentence of a determinate term followed by a Long-Term Supervision Order (s. 758(4)(b)).
129The dangerous offender sentence is a two-stage process. The designation stage concerns the criteria set out in s. 753(1) ( Boutilier, para. 14 ). The penalty stage relates to the considerations in s. 753(4) and (4.1) ( Boutilier, para. 15 ).
130I recognize that I must consider whether the criminal conduct of the offender is intractable. In Boutilier, the Court noted that at the designation stage, the concern was focussed on the future threat while in the penalty phase, the issue of intractability focussed on sentencing options to address that threat. ( Boutilier, para. 30 ).
The Designation Stage
131At this stage, the Crown must prove beyond a reasonable doubt that the predicate or index offence is a serious personal injury offence as defined by s. 752 and that the offender represents a threat to the life, safety or physical or mental well-being of other persons on the basis of establishing the kind of criminal behaviour captured by 753(1)(a) or (b), ( Spilman ).
132The Crown urges me to find Morgan-Baylis a dangerous offender on the basis of s. 753(1)(a)(i)(ii) and (iii). I agree that the criteria in each of those three subsections have been proven beyond a reasonable doubt.
133The conviction of the predicate offences of aggravated assault and assault with a weapon are serious personal injury offences as defined by s. 752(a).
134Subsection (1)(a)(i) concerns itself with a “pattern of repetitive behaviour” while (1)(a)(ii) considers “persistent aggressive behaviour.” This was discussed in R. v. Hogg, 2011 ONCA 840:
To summarize, the pattern of repetitive behaviour that includes the predicate offence has to contain enough of the same elements of unrestrained dangerous conduct to be able to predict that the offender will likely offend in the same way in the future. This will ensure that the level of gravity of the behaviour is the same, so that the concern raised by Marshall J.A. – that the last straw could be a much more minor infraction – could not result in a dangerous offender designation. However, the offences need not be the same in every detail; that would unduly restrict the application of the section.
135When considering s. 753(1)(a)(i) and the predicate offences of the physical abuse of Deana Hallett, I find them to be part of a pattern of repetitive behaviour of the offender albeit an escalation of seriousness. Morgan-Baylis drinks alcohol and uses drugs which triggers physical assaults, threats and destruction of property. His conduct focusses on vulnerable female victims often in a domestic context. His reaction to perceived disrespect by his victims is impulsive and violent. It happens over and over again and is reflected in his 56 antecedent offences. He cannot restrain himself despite arrests, incarceration, court orders and counselling. Many of the features are reflected in his present in-court behaviour.
136In considering the likelihood of his future ability to restrain this abusive behaviour, I find helpful the explanation of Code J. in R. v. P.G., 2013 ONSC 589 at para. 18:
18The one difficult issue, in relation to the s. 753(1)(a) and (b) statutory tests, is whether the requisite “likelihood” of re-offending in the future has been established. Predicting future conduct is notoriously difficult and the exact meaning of the s. 753 “likelihood” test is subtle. The ordinary dictionary meaning of the word “likelihood”, as well as its normal legal usage, is “probability”, that is, something more than mere “possibility”. See: The New Shorter Oxford English Dictionary, Oxford University Press 1993, Vol. 1, p. 1588; Black’s Law Dictionary, 9 th Ed. 2009, at p. 1012; D.A. Dukelow, Dictionary of Canadian Law, 3 rd Ed. 2004, at p. 723; R. v. H. (J.T.) (2002), 2002 NSCA 138, 170 C.C.C. (3d) 405 at paras. 68-75 and 101-4 (N.S.C.A.). When applying this meaning to the “likelihood” test found in s. 753 , the courts have stressed that it refers to probable “risk” or “potential for harm”, as a present fact, rather than to proof of a future event which would be an impossibility. The best discussion of this difficult subject is found in the judgment of LaForest J., speaking for the majority in R. v. Lyons (1987), [1987] 2 S.C.R. 307, 37 C.C.C. (3d) 1 at paras. 92-95 and 99-100 (S.C.C.), where he stated:
Paragraphs (a) and (b) of s. 688 [now s. 753] both require proof that the offender represents a threat of some sort to society. It is nowhere required that it be proved that the offender will act in a certain way. Indeed, inherent in the notion of dangerousness is the risk, not the certainty, of harm .
137I have no difficulty concluding beyond a reasonable doubt that there is the present likelihood that Morgan-Baylis will reoffend in the future and that he is likely to cause death or injury or inflict severe psychological damage. His past is the best predicator of his future. At present, the cycle of criminality would simply continue.
138While this view is supported by the expert opinion of Dr. Pearce discussed above, I agree with the position of Pomerance J. as she expressed it in para. 137 of R. v. McLaughlin, 2014 ONSC 6537:
137This conclusion does not require validation by an expert. The prospect of future violence is sufficiently obvious that it can be discerned by a lay person. Psychiatric and psychological evidence is important in these hearings, but it is the court that must ultimately be satisfied of the dangerous offender criteria. This point was made by Ewaschuk J. in a passage quoted with approval by the Supreme Court of Canada in R. v. Lyons, [1987] 2 S.C.R. 307, 61 C.R. (3d) 1 at para. 124 :
I accept the submission that the evidence of a psychiatrist, psychologist or criminologist is at times highly speculative and in certain instances a lay person is in as good a position to make a prediction as to future dangerousness. In the final say, the court, however, must be so satisfied and not the expert witness. That is not to say that experts may not assist the court , especially as to whether the offender currently suffers from a psychological disorder, e.g., psychopathy, which may be relevant to the likelihood of future dangerous conduct.
139As to the s. 753(1)(a)(ii), I find as discussed above a clear pattern of persistent aggressive behaviour. His substance abuse and then impulsive violence is repetitive or persistent and constantly repeating. (R. v. Yanoshewski (1996), 104 C.C.C. (3d) 512 (Sask. C.A.)). Morgan-Baylis shows complete indifference to the consequences of his actions on his victims. That indifference is demonstrated in the language of his threats to his victims; in the minimization of his conduct as reported by the supervising probation officers and by Dr. Pearce; and by the cognitive distortions noted by Dr. Pearce. As noted by Warren Chambers, despite restricting court orders, Morgan-Baylis was going to go ahead and do what he wanted. Again, the indifference is a symptom of the ASPD diagnosed by Dr. Pearce.
140Finally in considering s. 753(1)(a)(iii), I find the lengthy and violent abuse of Deana Hallett in the predicate offences to be of the brutal nature considered in this subsection. I do not intend to detail my findings of fact again. They are set out in my trial decision. Obviously, these were the last and most serious convictions.
141There is nothing about this assault when viewed with his history that allows me to conclude that there is presently any likelihood that his future behaviour will be inhibited by normal standards of behavioural restraint. His conduct was “coarse, savage and cruel” (R. v. Langevin, [1984] O.J. No. 3159 (C.A.)). The physical damage is exhibited by the medical reports and photographs introduced at trial. The psychological damage recounted in Deana Hallett’s victim impact statement.
142On the totality of the evidence I have found Morgan-Baylis is a high risk to commit further violent offences. The violent pattern is intractable. There is no evidence on treatability at this phase so compelling as to displace this finding. ( Boutilier, para. 45 ). Morgan-Baylis is clearly unable to control his personal characteristics which drive his criminal conduct.
Penalty Stage
143Having found Morgan-Baylis to be a dangerous offender, my sentencing is now directed by s. 753(4) and (4.1) of the Criminal Code:
Sentence for dangerous offender
(4) If the court finds an offender to be a dangerous offender, it shall
(a) impose a sentence of detention in a penitentiary for an indeterminate period;
(b) impose a sentence for the offence for which the offender has been convicted — which must be a minimum punishment of imprisonment for a term of two years — and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or
(c) impose a sentence for the offence for which the offender has been convicted.
Sentence of indeterminate detention
(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.
144Paragraph 30 of Spilman discusses the exercise of my sentencing discretion and the tests to be imposed in my analysis:
30Section 753(4.1) provides guidance on how hearing judges can properly exercise their discretion, in accordance with the applicable objectives and principles of sentencing, to impose the appropriate sentence to manage the established threat that the offender poses to society. The provision requires the judge to examine the evidence adduced at the hearing to determine whether there is a reasonable expectation that a lesser measure – a conventional fixed-term sentence or a fixed-term sentence of at least two years followed by a long-term supervision order – will adequately protect the public against the risk that the offender will commit murder or a serious personal injury offence. The hearing judge must first exhaust the less coercive sentencing options to address this risk of recidivism before imposing a sentence of indeterminate detention in a penitentiary: Boutilier, at para. 69 .
145In my consideration of an appropriate penalty, I must continue to apply the principles and guidelines in s. 718 – 718.2 of Part XXIII of the Criminal Code of Canada ( Boutilier para. 53 ; Spilman para 28 ).
146But this is a special sentencing regime. As a result, I am not restricted to imposing a term of imprisonment that would be appropriate on conviction of the predicate offences in the absence of a dangerous offender designation. ( Spilman para. 32 ).
147While the findings I made in the designation phase seem obvious, I have been troubled by the selection of an appropriate penalty. Morgan-Baylis has a long history of behaviour well documented above. He is out of control but it is not the horrific kind of physical violence or the rampant sexual impulsivity that one often finds in these types of applications. Having said that, I accept that all efforts to-date to control the offender’s polysubstance abuse and his antisocial behaviour have failed. Out of custody he pays lip service to his court ordered conditions and nothing more. These findings are consistent with the evidence of his probation supervisors, sentencing judges and fundamental to the opinion of Dr. Pearce, which I accept.
148I accept that Morgan-Baylis needs a further lengthy period in the penitentiary to access the longitudinal robust programming suggested by Dr. Pearce and discussed by Shelley Griffith. I am able to take that lengthy institutionalized programming into account in coming to a fit and least intrusive sentence that protects the public. ( Spilman para. 39 ).
149Without the ability to extend the limits of the determinate sentence for the predicate offences, I might well have been forced to protect the public with the imposition of an indeterminate sentence ( Spilman para. 45 ). I might well have been forced to step up to that higher rung on the sentencing ladder described at para. 70 of Boutilier.
150I believe that a composite sentence of sufficient duration like the sentence received in Spilman can satisfy the test enumerated in s. 753(4.1). The custodial portion will not exceed the maximum term of imprisonment directed by the statute. It will impose a fixed-term sentence not entirely disconnected from the circumstances of these predicate offences by respecting the purposes and principles of sentencing set out in s. 718 - 718.2 of the Criminal Code of Canada.
151The length of the sentence I prescribe will reflect the evidence I have heard in this hearing, particularly the evidence of Dr. Pearce, which I accept.
152Morgan-Baylis needs intensive multi-month programming for substance abuse and intensive programming for violence to be conducted during a lengthy sentence in a federal penitentiary. The offender told Dr. Pearce he was amenable to treatment. This is the least intrusive option available in these circumstances.
153The penitentiary sentence I will prescribe must be coupled with assertive management of the offender once released for the duration of a ten year Long-Term Supervision Order. The conditions I will recommend below will encompass a residential placement, the prescribing of Antabuse and regular urine screens.
154I have reflected on the nature of the offender’s previous convictions, the identified triggers for violence and the strength exhibited through his work history and the institutional programming to-date. I am content that this overall sentence will provide a reasonable expectation that the public will be adequately protected against the commission by the offender of murder or a serious personal injury offence. This is not a “mere hope” or a “reasonable possibility” built on generous optimism. (R. v. Solano, 2014 ONCA 185, [2014] O.J. No. 1118 (C.A.) para. 15 ).
Sentence
155Brian Morgan-Baylis is sentenced on Count 3, aggravated assault, to 10 years in custody. Counts 5, 6, 8 and 9 will each have sentences of 8 years in custody concurrent to each other and concurrent to Count 3. On Count 7, there will be a sentence of 5 years concurrent to all other offences. I see no reason in law to stay any further convictions based on Kienapple principles. The offender, consistent with the defence submissions, will receive enhanced credit for the 914 days of pre-sentence custody, such that his sentence to be served will be reduced by 1371 days or 3 years 8 months. The custodial sentence to be served is therefore 6 years 4 months.
156There will as well be a period of long-term supervision for 10 years with the following recommended conditions.
157Morgan-Baylis should access and complete a wide variety of programs during incarceration, including high intensity substance abuse treatment programming, violence and domestic violence prevention programs, anger management therapy and programs to target antisocial values and attitudes. Longitudinally-based “booster” programming in most domains should continue once Morgan-Baylis returns to the community, to bolster the effects of institutional programs.
158When Morgan-Baylis has access to the community, at least once weekly urine screens should be performed to ensure that he remains abstinent from substances of abuse. He should be prescribed disulfiram (Antabuse, an anti-alcohol medication) under supervision, to help ensure he does not drink. Use of any non-prescribed substance should result in his immediate return to custody.
159Morgan-Baylis should initially reside at a CCC. He should, at the outset, only be permitted access to the community for treatment programming (including educational or vocational programming). If living outside of a CCC facility parole officers should make regular visits to his residence to ensure that he is abiding by conditions.
160Morgan-Baylis should be prohibited from having contact with any criminally-oriented peers outside of correctional facilities. He should not attend at any venue where the primary source of revenue is achieved through the sale of alcoholic beverages.
161Morgan-Baylis should not be in possession of a weapon.
162Morgan-Baylis should seek out gainful employment and/or further his education.
163Morgan-Baylis’ relationships should be monitored closely. He should be obliged to disclose any potential partners to his case management team. That potential partner should be informed about his history.
164There will be lifetime firearms prohibitions on all Counts pursuant to s. 109 of the Criminal Code of Canada. There will be orders pursuant to s. 487.05 on each of the Counts for the taking of samples of bodily substances for D.N.A. analysis. There will be an order pursuant to s. 760 of the Criminal Code of Canada for the transmission of information to the Correctional Service Canada consistent with the terms of the draft order presented by the Crown.
“Original signed and released”
Regional Senior Justice Bruce G. Thomas
Released: October 5, 2018.
APPENDIX “A”
| DATE | CONVICTION |
|---|---|
| June 7, 1996 | s. 348(1)(a) Break & Enter with Intent – 1 month PSC, 2 years’ probation s. 145(3) Fail to Comply with Recognizance – 2 years’ probation |
| June 26, 1997 | s. 26 YOA Breach of Youth Probation Order – 7 days secure custody and probation until June 6, 1998 |
| June 6, 2001 | s. 264.1(2) Utter Threats – suspended sentence + 12 months’ probation s. 145(3) Fail to Comply with Recognizance – 1 day custody (9 days PSC) |
| June 19, 2002 | s. 145(3) Fail to Comply with Recognizance – 1 day custody (7 days PSC) |
| January 30, 2003 | s. 430(4) Mischief Over $5,000 – $200 fine + 12 months’ probation |
| September 12, 2003 | s. 145(3) Fail to Comply with Recognizance – 30 days intermittent s. 266 Assault – 7 days intermittent (4 days PSC) |
| April 14, 2004 | s. 129(a) Obstruct Peace Officer – 1 day (5 days PSC) s. 430(4) Mischief under $5,000 – 20 days concurrent s. 145(5.1) Fail to Comply with Undertaking – 50 days on each charge consecutive + 18 months’ probation & discretionary prohibition order s. 110 for 5 years s. 266 Assault – 50 days on each charge consecutive + 18 months’ probation & discretionary prohibition order s. 110 for 5 years |
| July 14, 2004 | s. 264.1(1)(a) Utter Threats – 28 days custody (31 days PSC) 2 years’ probation & discretionary prohibition order s. 110 for 5 years |
| January 25, 2005 | 1. s. 264.1(2) Utter Threats – 60 days (109 PSC) + 2 years’ probation 2. s. 430(4) Mischief over $5000 – 60 days (109 PSC) on each charge concurrent 3. s. 733.1(1) Breach of Probation – 60 days (109 PSC) on each charge concurrent |
| June 26, 2006 | 1. s. 733.1(1) Fail to Comply with Probation Order – 15 days jail |
| November 26, 2007 | 1. s. 4(1) CDSA Possession of Cannabis - $300 fine |
| January 22, 2009 | 1. s. 430(3) Mischief over $5000 - $1,000 fine + 1 year probation |
| February 25, 2010 | 1. s. 733.1(1) Fail to Comply with Probation – 7 days jail 2. s. 733.1(1) Fail to Comply with Probation - $1,000 fine |
| April 15, 2010 | s. 145(3) Fail to Comply with Recognizance – 16 days (4 days PSC) |
| June 10, 2010 | 1. s. 175(1)(a) Cause Disturbance – 43 days on each charge concurrent (47 days PSC) 2. s. 129(a) Resist Arrest – 43 days on each charge concurrent (47 days PSC) + discretionary prohibition order for 5 years 3. s. 145(3) Fail to Comply with Recognizance – 43 days concurrent (47 days PSC) |
| May 13, 2011 | 1. s. 266 Assault – 38 days jail (22 days PSC) + 12 months’ probation on each charge concurrent & discretionary prohibition order s. 110 for 5 years 2. s. 145(3) Fail to Comply with Recognizance – 38 days jail (22 days PSC) + 12 months’ probation on each charge concurrent & discretionary prohibition order s. 110 for 5 years |
| August 9, 2011 | 1. s. 733.1(1) Fail to Comply with Probation Order – time served (11 days) |
| September 27, 2011 | 1. s. 334(b) Theft Under $5000 – 76 days jail (14 days PSC) |
| October 12 & November 21, 2011 (same info) | 1. s. 145(3) Fail to Comply with Recognizance – 30 days jail (Oct 12, 2011) 2. s. 270(1)(b) Assault with Weapon – time served (6 days PSC) & discretionary prohibition order s. 110 for 10 years (Nov 21, 2011) |
| December 23, 2011 | 1. s. 733.1(1) Fail to Comply with Probation Order – 26 days jail (4 days PSC) |
| March 21, 2012 | 1. s. 733.1(1) Fail to Comply with Probation Order – 4 days jail (6 days PSC) |
| March 29, 2012 | 1. s. 266 Assault – 30 days (5 days PSC) + 12 months’ probation & discretionary prohibition order s. 110 for 5 years |
| June 5, 2012 | 1. s. 733.1(1) Breach of Probation – 24 days jail (6 days PSC) |
| August 31, 2012 | 1. s. 733.1(1) Breach of Probation – Time Served (45 days PSC) 2. s. 810 Fear Damage/Injury – order made |
| March 4, 2013 | 1. s. 733.1(1) Breach of Probation Order – 14 days concurrent (76 days PSC) + 1 year probation 2. s. 266 Assault – 14 days Custody (76 days PSC) + 1 year probation & s. 110 prohibition order for 5 years |
| June 13, 2013 | 1. s. 733.1(1) Breach of Probation Order – 74 days custody (36 days PSC) + 2 years’ probation 2. s. 266 Assault – 74 days Custody (36 days PSC) + 2 years’ probation & s. 110 prohibition order for 5 years |
| September 16, 2013 | 1. s. 733.1(1) Breach of Probation Order – 20 days custody (5 days PSC) |
| May 30, 2014 | 1. s. 733.1(1) Breach of Probation Order – 16 days PSC |
| December 17, 2014 | 1. s. 266 Assault – 1 day served (40 days PSC) + 2 years’ probation & discretionary weapons prohibition s. 110 for 10 years 2. s. 264.1(1)(a) Utter Threats – 1 day served (40 days PSC) + 2 years’ probation & discretionary weapons prohibition s. 110 for 10 years 3. s. 430(4) Mischief under $5000 – 1 day served (40 days PSC) + 2 years’ probation & discretionary weapons prohibition s. 110 for 10 years |
| March 3, 2015 | 1. s. 264.1(1)(b) x 3 Utter Threats to property – 108 days (148 days PSC) + 2 years’ probation & s. 110 prohibition order for 10 years 2. s. 145(3) x 3 Fail to Comply with Recognizance – 108 days (148 days PSC) + 2 years’ probation & s. 110 prohibition order for 10 years 3. s. 430(4) x 2 Mischief Under $5000 - 108 days (148 days PSC) + 2 years’ probation & s. 110 prohibition order for 10 years 4. s. 264.1(1)(a) x 2 Utter Threats - 108 days (148 days PSC) + 2 years’ probation & s. 110 prohibition order for 10 years 5. s. 266 Assault - 108 days (148 days PSC) + 2 years’ probation & s. 110 prohibition order for 10 years 6. s. 127 x 4 Disobey Court Order - 108 days (148 days PSC) + 2 years’ probation & s. 110 prohibition order for 10 years |
| November 23, 2015 | 1. s. 733.1(1) Fail to Comply with Probation Order – 63 days concurrent (78 days PSC) + 2 years’ probation 2. s. 733.1(1) Fail to Comply with Probation Order – 63 days concurrent (78 days PSC) + 2 years’ probation 3. s. 733.1(1) Fail to Comply with Probation Order – 63 days concurrent (78 days PSC) + 2 years’ probation 4. s. 264.1(1)(a) x 2 Utter Threats – 63 days concurrent (78 days PSC) + 2 years’ probation & prohibition order s. 110 for 5 years 5. s. 430(4) Mischief Under $5000 – 63 days concurrent (78 days PSC) + 2 years’ probation 6. s. 264.1(1)(b) Utter Threats to damage property – 63 days concurrent (78 days PSC) + 2 years’ probation |
| April 6, 2016 | 1. s. 733.1(1) Fail to Comply with Probation Order – 1 day (4 days PSC) |
COURT FILE NO.: CR-16-2909 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – Brian Morgan-Baylis REASONS FOR JUDGMENT Bruce Thomas Regional Senior Justice
Released: October 5, 2018.
