COURT FILE NO.: CR/17/30000237/0000 DATE: 20190506
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN - and - ALI BUTT
J. Battersby and L. Zamojc, for the Crown M. Johal, for Mr. Butt
HEARD: April 1, 2, 3, 5, 8 and 10, 2019
Warning: there is an order pursuant to s. 486.5(1) banning publication of any information which may tend to identify the victim in this matter
M. Forestell J.
Decision on sentencing and dangerous offender application PURSUANT TO SECTION 753(1) OF THE CRIMINAL CODE
I The Application
[1] The Respondent, Ali Butt, entered guilty pleas on September 6, 2017 to two charges of criminal harassment and two charges of threatening death.
[2] The Crown brings this application pursuant to s. 753(1) of the Criminal Code, R.S.C., 1985, c. C-46 (the “Code”) to have Mr. Butt declared a Dangerous Offender. The Crown seeks a determinate sentence of two years’ imprisonment and a Long Term Supervision Order (“LTSO”) of 10 years. The Crown position is that Mr. Butt meets the criteria to be designated a Dangerous Offender under ss. 753(1) (a)(i) and (ii).
[3] Mr. Butt opposes the application for a dangerous offender designation, but concedes that the criteria for a Long Term Offender have been met. Mr. Butt submits that he cannot be designated a Dangerous Offender because the Crown has not met its onus of establishing that he has demonstrated the necessary pattern of violent conduct nor has the Crown shown that he is intractable. Mr. Butt submits that a sentence of two years’ imprisonment in the penitentiary followed by a five-year LTSO is appropriate.
[4] There are three issues to be determined on this application given the position of the Crown and the concessions made by Mr. Butt:
(1) Has the Crown proved a pattern of violent conduct sufficient to satisfy the definition of such conduct in either ss. 753(1) (a)(i) or s. 753(1) (a)(ii)? (2) Has the Crown proved that Mr. Butt’s conduct is intractable? (3) What period of long term supervision is appropriate?
[5] For the reasons that follow, I have concluded that Mr. Butt cannot be designated a Dangerous Offender. Although I find that a pattern of violent conduct has been established that is sufficient to meet the requirements of ss. 753(1) (a)(i) and (ii), I am not satisfied that the Crown has proved that Mr. Butt’s conduct is intractable.
[6] I am satisfied, based on the evidence and as conceded by Mr. Butt, that Mr. Butt meets the criteria to be designated a Long Term Offender and I find him to be a long term offender. I agree that the appropriate length of imprisonment is two years in the penitentiary. I find that a period of supervision of eight years is appropriate.
II Evidence
Overview
[7] On this application, the Crown filed the following documentary evidence:
i) Agreed Statement of Facts, text messages and translations; ii) Consent of the Attorney General; iii) Screen shots of the text messages and a translation of the messages in Urdu; iv) Criminal record of the offender; v) Victim Impact Statement of the victim, N.M.; vi) Report of Dr. Elizabeth Coleman, pursuant to s.752.1; vii) Information, transcript of the guilty plea and reasons for sentence relating to the 2011 offence against the same victim; viii) April 2010 Information charging the offender with failing to comply with a recognizance; ix) Records from Probation Services and Correctional Services in Alberta relating to the offender’s 2010 conviction for possession of property under $5,000.00 obtained by the commission of an indictable offence; x) Ontario probation and correctional service records; xi) Two documents entitled “CSC Correctional and Educational Program Descriptions 2018” and “Community Supervision Expert Witness Information Package” produced by Correctional Services Canada (“CSC”); and, xii) A document produced by the Ontario Ministry of Community Safety and Correctional Services (“MCSCS”) entitled “Institutional Services Overview for Dangerous Offender/Long Term offender Hearings.”
[8] Counsel for Mr. Butt filed a report prepared by Dr. Julian Gojer.
[9] Four witnesses testified at the hearing: Dr. Coleman, Dr. Gojer, Ms. Kim Gillespie from CSC and Mr. Brad Tamscu from MCSCS.
[10] As I will outline below, there was substantial agreement between the two psychiatrists and there were significant concessions made by Mr. Butt. I have considered all of the evidence adduced but, given the agreement and concessions, it is not necessary to refer to the background material in detail in these reasons.
Evidence of the Predicate Offences and Prior Offence against the Victim
[11] There was an Agreed Statement of Facts filed in support of the guilty pleas in this matter. The Agreed Statement of Facts describes the history of the relationship between Mr. Butt and the victim, N.M. The two attended the same school in 2005 in Montreal and began a personal relationship. In 2009 the victim moved to Toronto and Mr. Butt remained in Montreal.
[12] On April 21, 2011 the two met at a hotel in Toronto. They had an argument about the status of their relationship. During the encounter, the victim received a call from a male friend. Mr. Butt became angry and jealous. Mr. Butt stabbed the victim in the thigh with a large knife that he had brought with him to the meeting, but had concealed from the victim. The cut to the victim’s leg was 5 inches deep and 1.5 inches wide. Following the incident, Mr. Butt called 911. The victim called her cousin to ask for his help. They were disconnected. When the cousin called back, Mr. Butt answered the phone and told the cousin that everything was fine.
[13] The victim was eventually taken to hospital and underwent surgery for her wound. Mr. Butt was arrested and charged with aggravated assault. He pleaded guilty to aggravated assault and was sentenced on January 27, 2012 to 7 months’ imprisonment in addition to time served of 11 months. He was also placed on probation for three years.
[14] The sentencing judge made an order under s. 743.21 that Mr. Butt have no contact with the victim while in custody. It was a term of the probation order that he have no contact with the victim. Mr. Butt contacted the victim while he was in custody serving his sentence for the aggravated assault. The contact continued upon his release. The victim at that point wished to have contact with Mr. Butt. At some point the victim reconsidered her decision to become involved with Mr. Butt. She then told him that she no longer wanted to communicate with him. She asked him to leave her alone.
[15] Mr. Butt initially complied with the request of the victim. However, Mr. Butt resumed communication and threatened to tell the victim’s family about her communication with him if she did not continue to communicate with him. The victim’s family did not approve of her relationship with Mr. Butt and N.M. knew that they would be upset if they learned that she had been in contact with Mr. Butt.
[16] The victim met periodically with Mr. Butt when he came to Toronto. She tried to meet in public places because she was afraid to be alone with him. On one occasion in late 2015 or early 2016 they met in Mr. Butt’s car in a parking lot. The victim was distraught and asked Mr. Butt to leave her alone. She told him that she felt like killing herself. Mr. Butt raised the floor mat to reveal a knife and told her that she could help herself.
[17] In 2016 Mr. Butt continued to communicate with the victim, primarily through text messages. He persistently demanded that she respond to his messages. In April of 2016 Mr. Butt moved to Brampton. He demanded that the victim communicate with him, meet him and send him photos. On April 25, 2016 Mr. Butt threatened to kill the victim if he saw her with another man. He said that it was not hard for him to get a knife or a gun.
[18] On Monday, August 1, 2016 Mr. Butt and the victim exchanged a number of text messages. The victim deleted some of the messages. Mr. Butt texted the victim that he wanted to see her. The victim responded that she did not want to see him and that she would go to the police. She texted that she had enough evidence against him. Mr. Butt texted the following: “I will rape you”; “then I will kill you”; “then I will bury you”; “then I’ll take you out of your grave again”; “will pieces you”; “put you back in grave”; “then I’ll come back home will try not to cry”; “I will try not to miss you”; and “all the proofs you had add this with them you should be set for life ☺”.
[19] Also on August 1, 2016, Mr. Butt texted the victim demanding that she come out of her workplace and meet him. The victim saw Mr. Butt parked outside her workplace. She left by another exit. Mr. Butt texted her that he was going to her home. He later texted her photos of the door of her sister’s apartment which was where the victim was staying at the time. The victim then reported the incidents to the police.
Victim Impact
[20] N.M. provided a Victim Impact Statement. As she states in her Victim Impact Statement, N.M. was beaten physically and tortured mentally by Mr. Butt. She describes living in fear for four years before the predicate offences. She remains afraid for her safety and that of her family when Mr. Butt is released.
Background of Mr. Butt
[21] Mr. Butt is 30 years-old. He was born in Pakistan and immigrated to Canada in 2001. Mr. Butt’s father had moved to Canada in approximately 1996 and later sponsored the rest of the family. Mr. Butt is the second eldest of five children. He is the only male child in the family.
[22] Mr. Butt is the only member of the family who has been in conflict with the law. He appears to have a close relationship with his parents and his sisters. He had a caring and supportive upbringing. Aside from brief periods of time, he has always lived with his mother, father or both parents. His family is Muslim. His parents and siblings do not smoke, drink alcohol or use drugs. Mr. Butt smokes cigarettes and has used alcohol and cannabis in the past. He has lied to his family about his smoking, drinking and cannabis use.
[23] The family settled in Montreal when they came to Canada. Mr. Butt left school after completing grade 10. After leaving school, at about age 16 or 17 years (2004/2005), Mr. Butt moved to Alberta to work at a gas station. He reported that it was at this point that he began to associate with a negative peer group.
[24] Before he moved to Alberta, Mr. Butt had begun his relationship with the victim N.M. in Montreal. He described the relationship as ‘off and on” when he was in Alberta. Prior to his relationship with N.M., Mr. Butt had a relationship with another woman. That relationship lasted one to two years, until the woman’s family found out that she was seeing Mr. Butt and moved out of Montreal.
Prior Criminal Conduct
[25] Aside from the aggravated assault conviction in 2012 discussed above, Mr. Butt has two convictions on his criminal record: failing to comply with an undertaking in 2010 in Napanee and possession of property obtained by crime in 2010 in Alberta.
[26] The failing to comply conviction involved Mr. Butt drinking alcohol while prohibited from doing so. The conviction for possession of property obtained by crime involved participation with three friends in the robbery of a gas station. Mr. Butt stole cigarettes during the robbery.
[27] In addition to his convictions, Mr. Butt has admitted other criminal conduct for which he was not charged or convicted. Mr. Butt admitted involvement in a robbery for which he was not charged. He also admitted that he communicated with N.M. when he was in custody in 2012 in contravention of the order made by the sentencing judge. He failed to comply with his probation in 2012 when he had contact with N.M. following his release from custody after serving his sentence of imprisonment for the stabbing of N.M.
[28] In his assessment interviews, Mr. Butt also admitted that he had previously assaulted N.M. regularly. He did not provide detailed accounts of the prior assaults, but indicated that they were motivated by jealousy and by anger over N. M.’s conduct. By his account, the assaults occurred regularly over the course of the relationship.
Psychiatric Evidence: Diagnosis and Risk Assessment
[29] Both Dr. Coleman, who prepared the s. 752.1 psychiatric assessment and Dr. Gojer, who assessed Mr. Butt for the defence, agreed that Mr. Butt presents a high risk for violent recidivism against an intimate partner.
[30] Both Dr. Coleman and Dr. Gojer diagnosed Mr. Butt with a personality disorder with antisocial traits. They agreed that he could not be diagnosed with an antisocial personality disorder because there was no evidence of a conduct disorder before age 15. Dr. Coleman described Mr. Butt’s personality disorder as ‘severe’. Dr. Gojer described Mr. Butt as having a personality disorder that caused severe domestic violence.
[31] Mr. Butt’s scores on the actuarial risk assessment tools administered by the two psychiatrists varied somewhat as between Dr. Coleman and Dr. Gojer. However, Dr. Gojer testified that the scores were sufficiently close that the actuarial risk assessment by the doctors is comparable. Both doctors concluded, based on clinical judgment, that Mr. Butt presents a high risk to reoffend against a domestic partner. The actuarial tools supported this conclusion.
[32] The opinions of the two psychiatrists differed on the issue of whether Mr. Butt should be diagnosed with a substance abuse disorder. Dr. Coleman diagnosed a substance abuse disorder in relation to both alcohol and cannabis. Dr. Gojer did not diagnose a substance abuse disorder, but opined that Mr. Butt should not use alcohol or cannabis because the disinhibiting effects of drugs and alcohol increased the risk of aggressive and impulsive behaviour on the part of Mr. Butt. As Dr. Gojer said, “we want this man to be thinking clearly”. Both Dr. Gojer and Dr. Coleman recommended that Mr. Butt receive treatment to avoid the use of substances.
[33] The opinions of the two psychiatrists diverged somewhat on the issue of the likelihood that treatment would reduce the risk presented by Mr. Butt.
[34] Dr. Coleman testified that Mr. Butt’s prognosis was guarded because of the difficulties in treating personality disorders, Mr. Butt’s previous failure to gain any appreciable benefit from anger management treatment and his lack of insight.
[35] Dr. Gojer’s opinion was that Mr. Butt had some degree of insight and was amenable to treatment. Dr. Gojer testified that the intensive treatment progamme offered in the federal penitentiary, followed by gradual and supervised reintegration into the community was capable of mitigating the risk presented by Mr. Butt.
Evidence of Programming
[36] Ms. Kim Gillespie, Central Ontario District Area Director for Correctional Services Canada testified at the hearing. She described the ‘High Intensity Multi-Target Program’ that would be available to Mr. Butt in the federal correctional system and the aftercare program that would be available to him upon reintegration into the community on a LTSO. The program in the institution consists of 91 sessions of 2 to 2 ½ hours each. There are group sessions and individual counselling sessions. The program addresses general criminality, violence, family violence and substance abuse. The objectives of the program are to teach skills that help to reduce risky behaviour and to assist in changing anti-social attitudes, beliefs and associations.
[37] Ms. Gillespie testified that when an offender is subject to a LTSO, the offender is generally released to a community based residential facility with conditions imposed by the Parole Board to address identified risk factors. These conditions may include things like random urinalysis, non-communication with identified individuals, geographic restrictions, curfews and requirements to report certain types of relationships to the parole supervisor.
[38] Breaches of LTSO conditions may result in criminal charges.
III Analysis
[39] The criteria for designation as a Dangerous Offender are set out in s. 753(1) of the Criminal Code. The applicable subsections are the following:
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 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 the 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,…
[40] The Supreme Court of Canada in R. v. Boutilier, explained the criteria that the Crown must prove before a court will designate the offender to be a dangerous offender:
26 In Lyons [[1987] 2 SCR 309], Justice La Forest read the objective element of the designation -- the requirement that the predicate offence be a ‘serious personal injury offence’ -- together with the subjective element -- the ‘threat’ assessment -- and concluded that four criteria were ‘explicit’ from the language of s. 753(1): (1) the offender has been convicted of, and has to be sentenced for, a ‘serious personal injury offence’; (2) this predicate offence is part of a broader pattern of violence; (3) there is a high likelihood of harmful recidivism; and (4) the violent conduct is intractable (p. 338). The last three criteria are part of the assessment of the ‘threat’ posed by the offender. The last two of these are future-oriented, and Justice La Forest explained them as follows:
Thirdly, it must be established that the pattern of conduct is very likely to continue and to result in the kind of suffering against which the section seeks to protect, namely, conduct endangering the life, safety or physical well-being of others or, in the case of sexual offences, conduct causing injury, pain or other evil to other persons. Also explicit in one form or another in each subparagraph of s. [688, now 753] is the requirement that the court must be satisfied that the pattern of conduct is substantially or pathologically intractable . [Emphasis added; p. 338.]
27 The language of s. 753(1), which led Justice La Forest to develop the four criteria outlined above, has never been amended since its enactment in 1977. Before designating a dangerous offender, a sentencing judge must still be satisfied on the evidence that the offender poses a high likelihood of harmful recidivism and that his or her conduct is intractable. I understand "intractable" conduct as meaning behaviour that the offender is unable to surmount. Through these two criteria, Parliament requires sentencing judges to conduct a prospective assessment of dangerousness.
[41] Of the four criteria set out in Lyons and Boutilier, Mr. Butt concedes the first and third: there is a predicate offence that is a serious personal injury offence and the Crown has proved a high likelihood of harmful recidivism. The second and fourth criteria are contested.
[42] I will consider each of the criteria below. In light of the concessions of Mr. Butt, I will not address the first and third criteria in detail.
1. Is the Predicate Offence a “Serious Personal Injury Offence?”
[43] “Serious personal injury offence” is defined in s. 752 as including an indictable offence involving the use or attempted use of violence against another person or conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person.
[44] Criminal harassment has been held to be a serious personal injury offence. See R. v. Walters, 2018 ONCA 391. Although not every offence of criminal harassment would necessarily meet the definition of serious personal injury offence, I am satisfied and Mr. Butt concedes that the circumstances of the two offences of criminal harassment in this case meet the definition. The circumstances of the repeated contact with N.M., including Mr. Butt’s attendance at her workplace and home, in the context of his threats to rape, kill and dismember her and in the context of his previous stabbing of N.M., constitute conduct that was likely to inflict severe psychological damage.
2. Is the Predicate Offence part of a broader pattern of violence?
[45] In this case, the Crown relies on ss. 753(1) (a)(i) and 753(1) (a)(ii) to establish the broader pattern of behaviour. Mr. Butt argues that this criterion for a Dangerous Offender designation has not been met.
[46] Both subparagraphs are directed at examining the pattern of behaviour in order to predict the likelihood that the offender will reoffend in a violent manner in the future.
[47] To establish a pattern of repetitive behaviour under ss. 753(1) (a)(i) or persistent aggressive behaviour under ss. 753(1)(a)(ii), the Crown must prove that there is a sufficient connection between the predicate offences and the prior acts of violence committed by the offender. The inquiry must take into account the nature and context of the acts committed.
[48] In R. v. Dorsey, “pattern” was described as follows at paragraph 98:
I agree that in order to satisfy paragraphs (i) and (ii), the Crown must establish, among other things, that the predicate offences form part of a pattern of repetitive or persistent behaviour. 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 connection, and where the number of prior incidents is low, similarity may be crucial; R. v. Smyth, [2007] O.J. No. 1946 (Sup. Ct.). At paragraph 63. However, ‘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 victim... [and] similarity in terms of kinds of offences is not crucial when the incidents of serious violence and aggression are more numerous’: R. v. Neve (1999), 1999 ABCA 206, 137 C.C.C. (3d) 97, at paragraph 113 (Alta.C.A.).
[49] In R. v. Dow, the British Columbia Court of Appeal explained the pattern required to satisfy s.753(1)(a)(i) as follows:
[21] The elements of subpara.(i) of para.753(a) are: (1) that there be a pattern of repetitive behaviour revealed in the offences and that the pattern be present in the offence which gave rise to the dangerous offender proceeding; and (2) that the pattern of repetitive behaviour contained two essential elements: first, a failure to restrain the relevant repetitive behaviour and, second, a likelihood of causing death or injury through a failure to restrain that behaviour in the future.
[24] In short, the significance and the relevance of common elements of the pattern must be determined by whether they tend to show first, repetitive behaviour, second, that there has been a failure in each case to restrain the behaviour, and third, that there has been injury to other persons arising from that failure. If any of those three elements is missing, then there may be a pattern but it will not be a relevant pattern. But if all three are present then the essential elements of a relevant pattern are revealed.
[25] I add that it is the very essence of a pattern that there be a number of significant relevant similarities between each example of the pattern that is being considered, but that, at the same time, there may be differences between each example, some of them quite distinctive, so long as the differences leave the key significant relevant elements of the pattern in place...
[51] In R. v. Hogg, our Court of Appeal adopted the explanation of the pattern in s.753(1)(a) from Dow and went on to explain that the predicate offence must be related to and at least as serious as the prior conduct, writing at paragraph 40:
40 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.
[50] I am satisfied in this case that the Crown has proven a pattern of repetitive behaviour that shows a failure on the part of Mr. Butt to restrain his behaviour and that demonstrates a likelihood of causing death, injury or severe psychological harm to N.M. or another domestic partner through a failure in the future to restrain his behaviour.
[51] Offences which have not been the subject of prior criminal charges may be included in the behavioural pattern if proved beyond a reasonable doubt. See R. v. Jackson (1981), 61 C.C.C.(2d) 540 (NSCA) at 544; R. v. Newman, [1994] N.J. No. 54 (Nfld. CA) at para. 77. In this case, Mr. Butt reported to Dr. Gojer and to Dr. Coleman that he had assaulted the victim regularly prior to his arrest on the aggravated assault in 2011. Although I do not have details of all of the prior assaults on N.M., I have taken into account that there were regular assaults prior to the 2011 aggravated assault. I have also considered that Mr. Butt told Dr. Gojer that he had beaten N.M. with sticks and a belt and that on one occasion he punched her in the face, causing her nose to bleed.
[52] Mr. Butt told Dr. Gojer that he used physical violence prior to the 2011 aggravated assault in order to control the victim. He used threats and manipulation after 2012 for the same purpose.
[53] Mr. Butt knew at the time that he assaulted N.M. in 2011 that his behaviour was wrong. He was unable to restrain his behaviour which was part of a pattern of escalating violence driven by jealousy, anger and a need to control and dominate N.M.
[54] Mr. Butt did not resort to physical violence following his release in 2012, but adopted a different method of control and domination. I find that the features of control and domination of N.M. provide sufficient similarity to establish a pattern of behaviour. The pattern of physical violence began before the 2011 stabbing with repeated physical assaults driven by jealousy and anger. The pattern of violence against N.M. continued after 2012 when Mr. Butt was released from custody. After his release Mr. Butt did not inflict physical harm, but he did inflict severe psychological harm on N.M. when he repeatedly communicated with her, threatened her and went to her workplace and home. Mr. Butt’s conduct in his commission of the predicate offences of criminal harassment is similar to Mr. Butt’s conduct in the prior physical assaults because the conduct was directed at the same victim who was a previous domestic partner. His conduct in each instance was motivated by anger, jealousy and a desire to control and dominate. Mr. Butt knew that his conduct was wrong but he was repeatedly unable to restrain his behaviour.
[55] The conduct meets the three requirements with respect to the pattern defined in ss.753(1)(a)(i): the behaviour was repetitive; there was a failure to restrain the behaviour; and, there has been injury or severe psychological damage as a result of the behaviour.
[56] The conduct also meets the pattern requirements of ss. 753(1)(a)(ii). This subparagraph requires persistent aggressive behaviour that shows a substantial degree of indifference to the reasonably foreseeable consequences of the conduct. In R. v. Williams, 2018 ONSC 2030 at para 252, Hill J. held that persistence in this subparagraph involves conduct that is “enduring, continuous, obstinately persevering, interminable or sustained.” The indifference referred to in the subparagraph means ‘disregard, lack of sympathy or empathy, callousness or coldness, lack of concern or sensitivity.”
[57] Mr. Butt’s aggression against the victim was continuous over several years. Incarceration, court orders and a probation order did not deter Mr. Butt from seeking out this victim. The victim expressed to Mr. Butt her desire to be left alone and Mr. Butt repeatedly ignored or dismissed her pleas. He was indifferent to the impact of his conduct on the victim.
[58] I have considered the submission of counsel for Mr. Butt, that the level of gravity of the predicate offences is lower than the prior offence of aggravated assault and the prior uncharged offences of assault. In R. v. Hogg, supra, the Court of Appeal held that the conduct in the predicate offence must be at least as grave as the prior conduct. Viewed in isolation, the conduct underlying the criminal harassment offences may appear to be less serious than the wounding of N.M. by Mr. Butt in 2011.
[59] However, the measurement of the respective gravity of these offences cannot be undertaken in a vacuum. When it was suggested to Dr. Gojer that Mr. Butt’s conduct was de-escalating, Dr. Gojer testified that the criminal harassment was not a de-escalation because the predicate offences must be viewed in the context of the history between Mr. Butt and N.M. Viewed in that context, Dr. Gojer was of the opinion that the 2016 offences were a continuation of Mr. Butt’s pattern of dominating and exerting control over N.M. Dr. Coleman expressed a similar opinion that the offences should not be viewed in isolation.
[60] Mr. Butt, seriously wounded N.M. in 2011 and assaulted her prior to that time. When he criminally harassed and threatened her in 2016, he did not need to use physical violence to dominate and control her, but was able to use psychological manipulation for the same purpose. Mr. Butt referred back to his prior assaults on N.M. in his text messages to her. For example, in one message he wrote “You know I can be an asshole,!” In another text message he wrote, “Pray I don’t become the Boy I was in past”. In another, he wrote, “You already know my disrespectful ways”.
[61] I find that, on the facts of this case, because the predicate offences referred back to the earlier more serious offences and can be characterized as a continuation of the violence of the earlier offences, the predicate offences of criminal harassment in the circumstances of this case are of a level of gravity that is at least equal to the prior offence of aggravated assault.
[62] I therefore conclude that a pattern of violent conduct as defined in ss.753(1)(a)(i) and (ii) has been proven.
3. Is there a high likelihood of harmful recidivism?
[63] Mr. Butt concedes that the Crown has proven that there is a high likelihood of harmful recidivism absent treatment in this case. This conclusion is well-supported by the record in this case. Both psychiatrists expressed the opinion that Mr. Butt presents a high risk of future violence against an intimate partner.
4. Is Mr. Butt’s violent conduct intractable?
The Test
[64] The Crown must prove beyond a reasonable doubt that the violent pattern of conduct of Mr. Butt is ‘intractable’. The Supreme Court, in Boutilier, supra, explained that intractability must be considered both at the designation stage of a Dangerous Offender application and at the penalty stage if the offender is designated to be a Dangerous Offender. As noted above, “intractable” means behaviour that the offender is unable to surmount. The Supreme Court of Canada has clarified that the sentencing judge must engage in a prospective assessment of the offender’s risk. Prospective evidence, such as evidence of future treatment prospects, is therefore relevant at the designation stage. As Justice Coté wrote at para. 45, “[O]ffenders will not be designated as dangerous if their treatment prospects are so compelling that the sentencing judge cannot conclude beyond a reasonable doubt that they present a high likelihood of harmful recidivism or that their violent pattern is intractable.”
Likely Efficacy of Treatment
[65] The evidence of Dr. Coleman and Dr. Gojer is that personality disorders are difficult to treat. Treatment consists of therapy, counselling and the development of skills to change the behaviour. Cognitive Behavioural Therapy may be used to treat personality disorders. Dr. Coleman observed that individuals who score very highly on the psychopathy scale are unlikely to be amenable to treatment. Mr. Butt, however, has a moderate rather than a high score. Dr. Coleman’s evidence in her report is that Mr. Butt may benefit from structured and relatively intense anger management treatment.
[66] Dr. Coleman expressed reservations about the likely success of anger management treatment because Mr. Butt had previously completed five sessions of anger management treatment during his 2011-2012 incarceration and he reoffended against N.M. after this treatment. The treatment, completed by Mr. Butt while in custody in 2011-2012, was described by Dr. Gojer as essentially psycho-educational and inadequate to meet the needs of Mr. Butt. Dr. Gojer expressed the opinion that Mr. Butt required longer, more intense treatment of the type offered in the federal penitentiary. Dr. Coleman’s report indicates that studies have shown that outcomes correlate with the intensity and duration of treatment.
[67] Both Dr. Gojer and Dr. Coleman testified that Mr. Butt should receive substance abuse treatment to reduce his risk. Mr. Butt has abstained from the use of alcohol and cannabis for several years. His prognosis for successful substance abuse treatment is good.
[68] The evidence of Ms. Gillespie was that there is programming at the federal penitentiary that would provide intense therapy for Mr. Butt. The programme includes counselling and therapy directed at domestic violence. The intense therapy is followed by a maintenance programme. The maintenance is continued upon release of the offender to a community correctional centre. The conditions of an LTSO are determined by the Parole Board but, in the case of a long term offender, almost invariably include a period of supervision at a community correctional centre where the transition into the community can be closely supervised and the therapy and counselling can be continued.
Willingness to Engage in Treatment
[69] Mr. Butt has engaged in anger management treatment in the past and has indicated a willingness to engage in therapy in the future.
[70] The Crown argues that in light of Mr. Butt’s history of lying, his failure to obey court orders and his failure to seek out treatment in the past, I should not rely on his expressed willingness to engage in meaningful therapy.
[71] Mr. Butt has a history of lying, including lying to his family about alcohol and drug use. He also lied to the court in 2012 about his contact with N.M. Mr. Butt has ignored court orders in the past when he consumed alcohol in violation of his bail and when he had contact with N.M. in violation of an order of the court and in violation of his probation.
[72] Mr. Butt did not seek out treatment when he was on probation after his 2012 conviction. His probation order required him to attend the PARS programme or a similar programme as recommended by his probation officer. There is no indication that a probation officer ever referred Mr. Butt to such a programme. He moved to Montreal upon his release and there was no PARS programme in Montreal. While Mr. Butt could have sought other similar treatment, I do not find that his failure to do so is evidence that his current expressed willingness to engage in treatment is disingenuous. Mr. Butt has limited education and, according to the psychiatrists, low average intelligence. Absent assistance and referral by a probation officer or other assistance, he is ill-equipped to access the necessary resources.
[73] I find it significant that Mr. Butt fully participated in the assessment process for this Dangerous Offender application. He admitted conduct in his interviews with both psychiatrists which reflected badly on him and which he knew reflected badly on him. He admitted uncharged criminal conduct against the victim. He engaged in an apparently open discussion of his motivation for the violence against the victim. This supports the submission on behalf of Mr. Butt that he is genuinely amenable to treatment.
Remorse and Insight
[74] Remorse and insight are factors that make treatment more likely to succeed.
[75] Mr. Butt has expressed some remorse for his conduct and demonstrated some insight. His remorse and insight are far from complete. He continues to minimize the aggravated assault against N.M. He is reluctant to acknowledge the harm his conduct has caused to N.M.
[76] The opinions of the experts diverged on the issue of whether Mr. Butt had remorse or insight. Dr. Coleman saw little sign of remorse or insight in her interviews with Mr. Butt. She pointed to Mr. Butt’s response when asked about the effect of his conduct on N. M. He said: “I have no idea. Mentally?” Dr. Gojer opined that Mr. Butt had developed some insight through the assessment process and that Mr. Butt had the capacity to develop more insight into his conduct and his need for treatment. Dr. Gojer’s opinion was that Mr. Butt was somewhat remorseful.
[77] An assessment of Mr. Butt’s remorse and level of insight is not an exercise that can produce an objective and exact quantification. In assessing this issue, I have taken into account the opinions of Dr. Gojer and Dr. Coleman.
[78] I find that Mr. Butt has demonstrated some insight into his conduct. Mr. Butt’s insight is not deep and he continues to suffer cognitive distortions. He minimizes and rationalizes aspects of his conduct towards N.M. Nevertheless, his expression of remorse through his guilty pleas and his acknowledgement of his need for treatment are positive factors in the assessment of intractability. His full participation in the assessment process is a positive factor. I accept that Mr. Butt has developed insight through the assessment process.
Conclusion on Intractability
[79] I have concluded that intense treatment of sufficient duration is capable of modifying the conduct of Mr. Butt. His remorse and insight, while limited, is genuine. He is amenable to treatment and has engaged in treatment in the past. The treatment previously offered to him was insufficient in terms of intensity or duration and is not a reliable predictor of his future treatment prospects. Appropriate treatment of sufficient duration and intensity is available to Mr. Butt in the federal penitentiary.
[80] I find that Mr. Butt’s treatment prospects are sufficiently compelling that I cannot conclude beyond a reasonable doubt that his violent pattern is intractable. I therefore find that Mr. Butt cannot be designated a Dangerous Offender.
Long-term Offender Criteria
[81] To declare an offender to be a long-term offender under section 753.1, the court must be satisfied that it would be appropriate to impose a sentence of two years or more, that there is a substantial risk the offender will re-offend and that there is a reasonable possibility of eventual control of the risk in the community.
[82] Both parties agree that a sentence of two years is appropriate. Both psychiatrists opined and Mr. Butt concedes, that absent treatment, there is a substantial risk that Mr. Butt will re-offend. I have concluded that with the appropriate treatment, there is a reasonable possibility of control of the risk in the community. The requirements to find Mr. Butt to be a long-term offender are met and I find him to be a long-term offender.
Sentence: Length of LTSO
[83] The Crown has argued that the LTSO should be for 10 years. Counsel for Mr. Butt submits that 5 years is sufficient. I find that an LTSO for a period of 8 years is required in the case. A five-year period of supervision is not adequate to protect the public and in particular, to protect N.M. and any future domestic partner of Mr. Butt. Mr. Butt requires supervision following his release from imprisonment to develop skills to change his conduct in relation to women and in particular, in relation to domestic partners. A period of five years is not sufficient to accomplish this and would put the victim and any future domestic partners at risk. I have concluded that an 8 year LTSO is sufficient to protect the public. Mr. Butt will be under supervision until he is almost 40 years old. This period will provide supervision of Mr. Butt in the community for a sufficient period to monitor his relationships.
IV Conclusion
[84] Therefore, on the two counts of criminal harassment, I find Mr. Butt to be a long term offender. I sentence him to two years’ imprisonment and to a period of supervision of 8 years, concurrent on both charges. On the counts of threatening death I sentence Mr. Butt to 6 months on each count concurrent.
[85] In addition, I make the following ancillary orders;
(a) DNA order pursuant to section 487.051(3) of the Criminal Code; (b) Weapons prohibition for life pursuant to s. 109 of the Criminal Code; and, (c) Order prohibiting Mr. Butt from communicating directly or indirectly with the victim in this matter pursuant to section 743.21 of the Criminal Code.
Forestell J.