Court File and Parties

COURT FILE NO.: 644/17

DATE: 20190325

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Julian Graham

BEFORE: S.T. Bale J.

COUNSEL: Sam Humphrey, counsel for the Crown

Elizabeth Bristow, counsel, for the defence

HEARD: March 18, 2019

ENDORSEMENT

[1] In September 2018, the offender was found guilty of the following Criminal Code offences: attempt to commit murder using a firearm (s. 239(1)(a)); aggravated assault endangering the life of the complainant (s. 268); discharging firearm with intent to wound (s. 244(1)); pointing a firearm (s. 87); unauthorized possession of firearm (s. 91(1)); possession of a loaded, restricted firearm without an authorization or licence (s. 95(1)(a)); careless use of firearm (s. 86(1)); using firearm in commission of offence (s. 85(1)(a)); and possession of restricted weapon while prohibited from doing so (s. 117.01(1)) (three counts arising from three separate orders made under s. 109 of the Code).

[2] The convictions arose from a drug-related incident which took place in a rooming house in March 10, 2017. On that day, the offender shot the victim twice, at close range, with a handgun. The first bullet entered the front of the victim’s thigh, and exited the back, damaging his femoral artery. The second bullet entered the front of his abdomen, and exited the back, resulting in damage to his small intestine, and a broken pelvis.

[3] The Crown now applies for an assessment pursuant to s. 752.1(1) of the Criminal Code which provides:

On application by the prosecutor, if the court is of the opinion that there are reasonable grounds to believe that an offender who is convicted of a serious personal injury offence or an offence referred to in paragraph 753.1(2)(a) might be found to be a dangerous offender under section 753 or a long-term offender under section 753.1, the court shall, by order in writing, before sentence is imposed, remand the offender, for a period not exceeding 60 days, to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under section 753 or 753.1.

[4] The threshold for the Crown to meet under s. 752.1(1) is low, but the granting of the order is not automatic. In R. v. Naess, 2004 53065 (ON SC), at para. 77, Hill J. described the test as follows:

I am inclined to the view that s. 752.1(1) obliges the court, on the totality of the circumstances, to determine whether reasonable grounds exist, in the sense of a real possibility the accused will be found to be a dangerous offender. As minimal as the standard is, it is something more than simply any possibility or a remote prospect only. The intrusion of the assessment frequently with prolonged custody, and its availability to the Crown in sentencing (s. 752.1(2)), demands nothing less.

[5] In R. v. Norman, 2014 ONSC 4769, at para. 14 and 15, Goldstein J. said the following:

I agree with Nordheimer J. [in R. v. P.H., [2005] O.J. No. 5698 (S.C.J.)]that the court must exercise a gatekeeper function. The court must always bear in mind that it has a responsibility to safeguard the rights of every individual before it, no matter how brutal the crimes that they have committed. It is particularly important that the court exercise this gatekeeper function when the crime has been a violent one, when the passions of the community are inflamed. I further agree with Nordheimer J. that the court must guard against the possibility that the bar is set so low that any person with a prior violent criminal record could be subject to a dangerous offender or long-term offender application. In this respect, I think that Mr. Shime was correct to point out that a court should not simply say "why not?" when asked to order an assessment.

On the other hand, the court also has a critical responsibility to protect citizens. It must be remembered at this point that the offender has been convicted of a predicate violent offence. Although all the rights of an offender under our law apply, the presumption of innocence no longer does. In these circumstances, the gatekeeper function is something of a balancing act.

[6] Crown counsel’s position is that there are reasonable grounds to believe that the offender “might be found” to be a dangerous offender either under ss. 753(1)(a)(i) or 753(1)(a)(ii), which provide as follows:

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

[7] Defence counsel acknowledges that one or more of the predicate offences are serious “personal injury offences”, as that term is defined in s. 752 of the Code. However, the defence position is that reasonable grounds to believe that the offender “might be found” to be a dangerous offender under s. 753 do not exist. In particular, she argues that the facts do not establish a sufficient pattern of repetitive or persistent aggressive behaviour.

[8] With respect to the meaning of a “pattern” of repetitive or persistent aggressive behaviour, Crown counsel relies upon R. v. Szostak, 2014 ONCA 15, at para. 63, where the court held as follows:

In my view, but for these errors in law, the trial judge would have found the appellant to be a dangerous offender. The appellant's repeated resort to force that caused serious injuries shows the necessary pattern under either paras. (i) or (ii). There were sufficient relevant similarities to demonstrate the pattern called for in these paragraphs. As the court said in Neve, at para. 113: "Similarity . . . can be found not only in the types of offences but also in the degree of violence or aggression threatened or inflicted on the victims." Over a very short period, four years, the appellant seriously injured three different people. He resorted to weapons in three of the offences and inflicted serious injuries. The trial judge's statement, at para. 69 of his reasons, that "[n]one of the injuries inflicted on the victims were life threatening or intended to be so", places too high a burden on the Crown [page424] and fails to reflect the gravity of the offences. Breaking a beer bottle over a person in a bar because of a dispute about standing in line; slashing a person with a pair of scissors because the appellant mistakenly thought the victim had some time earlier been involved in an altercation with him; beating an acquaintance so badly that he needed to go to hospital; and a year later slashing that same person with a knife across the face causing permanent injury demonstrate the very type of pattern intended to be captured by paras. (i) and (ii).

[9] With respect to the meaning of a “pattern” of repetitive or persistent aggressive behaviour, defence counsel relies upon R. v. Hogg, [2011] ONCA 840, R. v. Szostak, 2014 ONCA 15, R.v. Akbar, 2014 ONSC 3700, and R. v. Burton, 2016 ONCJ 278.

[10] In Hogg, at para. 40, the court characterized a “pattern of repetitive conduct” 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. 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.

[11] In Akbar, at para. 301, Garten J. said the following:

A pattern of behaviour is something more than a mere history of criminal activity. To constitute a pattern, there must be something that connects prior incidents together in a manner that justifies considering them as a whole. Similarity can supply the requisite degree of connections. Generally, the fewer the incidents in the past, the greater their similarity must be to amount to a pattern. Similarity can be found in the types of offences or in their circumstances: R. v. Smyth, [2007] O.J. No. 1946 (S.C.J.), at para. 63.

[12] In support of his position, Crown counsel relies primarily upon the following sets of convictions.

Convictions – April 18, 2006

[13] On April 18, 2006, following a trial by jury, the offender was sentenced on convictions for pointing a firearm, possession of weapon for dangerous purpose, and possession of a firearm without authorization or licence. The facts upon which the offender was sentenced include the following.

[14] The offender and his brother became involved in an altercation with the victim over a bicycle. The brother threatened to kill the victim, and left the scene to get a shotgun. The offender then followed the victim to a plaza, continuing the altercation. The brother returned to the scene carrying a concealed, loaded, sawed-off 12 gauge shotgun and, from a distance of five feet, pointed it at the victim and fired it. The victim was not hit or injured. Following the shooting, the offender took possession of the shotgun and concealed it so that they could make good their escape, and return to their apartment. The shotgun was not recovered by the police. On sentence, the offender was given four year’s credit for two years of pre-trial custody, and sentenced to a further three years. In sentencing the offender, McMahon J. said the following:

Mr. Graham’s record speaks for itself. He has a lengthy record for violence including robbery, concealed weapon, assaults bodily harm, failing to comply with court orders. Most aggravating is the fact that he had been released from jail less than 24 hours before this offence. Also, he was on three separate firearms prohibitions from three separate judges prohibiting him from possession of firearms, yet he was in possession of a sawed-off shotgun 24 hours after being released from jail.

Conviction – June 18, 208

[15] On June 18, 2008, the offender was convicted of assault with a weapon. The charge arose from a prison fight with another inmate on August 10, 2007, at Kingston Penitentiary. The offender took a sharp object from the victim and while holding him down on the floor, slashed his face with the sharp object. There was significant bleeding, and the victim required stitches.

Convictions – June 21, 2012

[16] On June 21, 2012, the offender pleaded guilty to two counts of assaulting a peace officer with weapon or causing bodily harm, and two counts of assaulting a peace officer. The convictions arose from an altercation with police which took place in the cells at the Durham Region Courthouse. Based upon video surveillance, the offender was suspected of having drugs in his possession. He refused to show his hands, and resisted being handcuffed. It took upwards of eight to ten officers to achieve control of and handcuff the offender, and three special constables were bitten by the offender. The three who were bitten had to undergo several months of blood work to determine whether they had been transmitted any communicable disease, and were left with scars.

[17] In support of her position that the offences relied upon by Crown counsel are insufficient to establish the patterns referred to in ss. 753(1)(a)(i) or 753(1)(a)(ii), defence counsel argues the following points.

[18] With respect to the offences for which the offender was sentenced in April 2006, defence counsel argues that the aggressive behaviour was primarily that of the offender’s brother, and that there is no indication of what the offender’s involvement was. I disagree. While his brother went for the sawed-off shotgun, the offender followed the victim to the plaza, continuing to involve him in a verbal and physical altercation. He stood by while his brother fired the shot, and then concealed the weapon and took it from the scene. In my view, when the incident is considered in its entirety, the behaviour of both the offender and his brother may be considered to be aggressive behaviour within the meaning of s. 753(1)(a)(ii).

[19] With respect to the altercation at Kingston penitentiary, defence counsel argues that it does not fit a pattern of aggression, because there is no indication that the offender was the aggressor, and there is some evidence that another inmate encouraged the victim to start the fight. However, in my view, even if the victim “started it”, the offender’s behaviour in pinning the victim down on the floor, and slashing his face with a sharp object, may also be considered to be aggressive behaviour within the meaning of s. 753(1)(a)(ii).

[20] In R. v. Neve, 1999 ABCA 206, at para. 118, the court held that in order to make an informed assessment of “whether the offender’s past behaviour will be likely to lead to harm in the future”, the court must understand the context in which an offender committed past criminal conduct.

[21] Defence counsel argues that the context of the Kingston Penitentiary offence includes the fact that it was committed in a penitentiary which is a “more violent environment than out in the community.” While this may be so, s. 753(1) of the Code applies to offences committed while in prison, and prison is a place where the offender has spent, and is likely to spend, a considerable amount of time.

[22] In Neve, at para. 117, the court held that “not only must the offender have demonstrated a commitment to serious violence or endangerment in the past; the reasons for that behaviour should militate against any reasonable prospect for meaningful change in the future.”

[23] With respect to the offences which took place in the cells at the Durham Region Courthouse, defence counsel submits that the court should take into consideration both the fact that the offender was going through withdrawal from drug addiction, and his guilty plea.

[24] With respect to the withdrawal from drug addiction, she argues that because the offender was going through withdrawal, the incident should not be considered to be part of the pattern which might otherwise be established. This argument suggests that the withdrawal was the cause of the offences. However, while there may be any number of factors which contribute to the commission of an offence, these offences involve aggressive behaviour, and suggest an indifference on the part of the offender respecting the reasonably foreseeable consequences of that behaviour.

[25] With respect to the guilty plea, defence counsel argues that the plea demonstrates remorse, and that the offender cannot therefore be said to be indifferent respecting the reasonably foreseeable consequences to the victims of his behaviour, and relies upon R. v. George, 1998 5691 (BC CA), 126 CCC (3d) 384 (B.C.C.A.), at para. 20. The difficulty with this argument is that it doesn’t necessarily follow from a guilty plea that an offender is remorseful - there are many reasons why an accused may plead guilty to an offence. In this case, a conviction was pretty much inevitable, given that the offences were caught on video. The consideration of whether the aggressive behaviour of the offender shows a substantial degree of indifference must be considered in the context of all of the offences which are said to demonstrate the pattern of repetitive or persistently aggressive behaviour.

[26] Defence counsel argues that the gaps between the offences for which the offender has been convicted show that he is capable of change. However, there are no particularly substantial gaps, and the offences subsequent to any gaps suggest that the root causes for the offender’s behaviour have not changed.

Disposition

[27] In the result, I am satisfied that there are reasonable grounds to believe that the offender “might be found” to be a dangerous offender under s. 753 of the Code, and there will be an order for an assessment pursuant to s. 752.1.

“S.T. Bale J.”

Date: March 25, 2019