COURT FILE NO.: CR-16-30000096-0000
DATE: 20191216
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Her majesty the queen, Applicant
AND:
Brian Kerr, Respondent
BEFORE: S.F. Dunphy J.
COUNSEL: Rob Fried, for the Applicant
Fariborz Davoudi, for the Respondent[^1]
HEARD at Toronto: August 6-9, 2019
REASONS FOR DECISION –
SENTENCING AND DANGEROUS OFFENDER APPLICATION
[1] On December 8, 2017, I convicted Mr. Kerr on two counts of counselling murder and one count of obstruction of justice. He is before me today for sentencing. In that connection, the Crown brought an application pursuant to s. 754 of the Criminal Code, R.S.C., 1985, c. C-46 for an order finding Mr. Kerr to be a dangerous offender.
[2] One business day prior to the commencement of the hearing on the merits of the Crown’s dangerous offender application, the defence gave notice of its intention to challenge certain aspects of Part XXIV of the Criminal Code in relation to the dangerous offender application process on the basis that these violate Mr. Kerr’s right to make full answer and defence contrary to s. 7 of the Charter and subject him to cruel and unusual punishment contrary to s. 12 of the Charter.
[3] The defence took the position that the dangerous offender regime – and in particular the requirement for the appointment of an assessing expert pursuant to s. 752.1(1) of the Criminal Code – had the effect of turning the failure of an offender to express remorse into an aggravating circumstance instead of merely the absence of a mitigating one.
[4] In effect, the defence submitted, an offender in Mr. Kerr’s shoes who intended to appeal his conviction and maintain his innocence would be prejudiced by his failure to admit guilt. It was claimed this prejudice would arise because of the inferences that an assessing expert would likely draw from the lack of demonstrated remorse. An adverse expert assessment would in turn tilt the playing field against the defence when the application comes on for a hearing on the merits. The prejudice cannot be mitigated by hiring a defence expert because all experts would view the matter in a similar way. This prejudice, the defence submitted, subjects the defendant to cruel and unusual punishment and deprives him of his liberty other than in accordance with the principles of fundamental justice.
[5] The Crown’s application was heard over four days and involved the filing of extensive documentary evidence of Mr. Kerr’s correctional, educational and medical history plus viva voce testimony of (i) the assessing psychiatrist (Dr. Alina Iosif) and (ii) Ms. Cathy Phillips of Correctional Services Canada. No additional evidence was called by the defence on either the Crown’s application or the Charter application referenced above.
[6] I am dismissing the Charter application brought by the defence. An offender who elects to participate in an assessment process or to offer evidence on the return of a dangerous offender application is not thereby deprived of due process. Mr. Kerr’s decision to participate in the court-ordered assessment was freely arrived at by him on the advice of competent counsel in consideration of the facts of the case presented by the Crown and was not compelled by any defect in the procedure established by Part XXIV of the Criminal Code. The fairness of the process is not measured by the relative strength or weakness of the case being responded to. Mr. Kerr has been afforded every opportunity to make full answer and defence of the case presented by the Crown.
[7] I also find that the Crown has discharged its burden of proving that Mr. Kerr is a dangerous offender pursuant to s. 753(1) of the Criminal Code beyond a reasonable doubt. Finally, I find that Mr. Kerr should be sentenced to a period of indeterminate detention in a penitentiary pursuant to s. 753(4) of the Criminal Code.
[8] While there are certainly some grounds for optimism in Mr. Kerr’s case, these are unfortunately speculative at the present time. Mr. Kerr may yet develop the necessary skills to make true progress in addressing his significant problems and I am confident that the Parole Board will monitor his progress carefully and fairly. However, until such progress can be demonstrated, Mr. Kerr’s personality disorders are clearly deeply-rooted and have thus far been quite impervious to treatment. The risk of violent recidivism posed by his intractable condition is an unacceptably high one. The interest of protection of society is paramount in cases such as this and that interest requires the isolation of Mr. Kerr from the community until such time as the significant risk of violent recidivism that he poses can be reduced to an acceptable level.
[9] The detailed reasons for my conclusions are set forth below.
Procedural History
[10] Following the delivery of my judgment convicting Mr. Kerr on December 8, 2017, the matter was put over to be spoken to for sentencing after the holidays on January 8, 2018. At that time, the Crown indicated its intention to bring an application pursuant to s. 752.1 of the Criminal Code to have Mr. Kerr remanded for assessment as a possible dangerous offender or long-term offender. That application was heard on March 29, 2018 and was granted. Dr. Alina Iosif was appointed by me to conduct the assessment.
[11] I received Dr. Iosif’s report and the addendum to her report (relating to subsequently-received correctional records) on May 14, 2018 and November 27, 2018 respectively. On June 14, 2018, a tentative two-day hearing was scheduled for September 2018. On August 24, 2018, the September dates were vacated and a new March 18, 2018 hearing date was set. On February 27, 2019, the March hearing dates were vacated and a four-day hearing was booked for August 6, 2019.
[12] The time to get this matter to a hearing on the merits was due to a combination of a change of counsel by Mr. Kerr prior to the assessment being ordered, the time required to conduct the assessment, delay in obtaining the complete set of correctional services records spanning more than two decades for review by the assessor and defence applications for legal aid funding to retain a defence expert and thereafter to select, retain and instruct such expert (in the end, the defence elected not to call its own expert).
Events following completion of hearing
[13] At the close of the hearing on August 9, 2019, I set October 4, 2019 as the date for delivery of my decision. On September 17, 2019, I received a letter sent directly to me by Mr. Kerr in an envelope that clearly indicated his desire that the document be considered privileged. Beyond ascertaining that the handwritten document inside the envelope was entitled “Brian G. Kerr Gladue Submission”, I did not review the document but advised counsel of its existence.
[14] At the return of the matter on October 4, 2019, I did not render my decision but sought the submissions of the parties as to what actions if any ought to be take in relation to the document sent to me by Mr. Kerr. With Mr. Kerr’s permission, the document was given to his counsel to review and thereafter to Crown counsel (Mr. Fried). I heard submissions from both counsel as to whether I ought to review the document.
[15] The defence position was that the document written by Mr. Kerr primarily discussed matters already in evidence elsewhere in the record and that I should consider it when arriving at my decision. The defence urged me to review the document but did not seek to convene a new hearing to consider it further. The Crown’s position was that the document was simply not admissible. Mr. Kerr had been given the opportunity to adduce evidence at the hearing and chose not to do so. No application to re-open the case has been made and no grounds to do so have been provided.
[16] I ruled that I had to review the document in order to be in any position to assess what to do with it. I took a brief recess to do so. After reviewing the document, I found myself largely in agreement with the defence – the document appeared to discuss and amplify issues already touched upon elsewhere in the record. The Crown, however, submitted that it required time to consider the document more completely and to determine whether additional evidence needed to be filed in response or whether Mr. Kerr ought to be examined in relation to it. The matter was adjourned to October 31, 2019 in order to permit the Crown time to assess its position on the matter.
[17] Shortly before we reconvened to, however, Mr. Davoudi filed a Notice of Application on October 27, 2019 asking to be removed from the record as a result of Mr. Kerr having sought new counsel through Legal Aid Ontario.
[18] On October 31, 2019, two matters were thus before me. The first matter was Mr. Davoudi’s application to be removed from the record which was granted. The second matter was receiving the Crown’s submissions regarding what use if any ought to be made of Mr. Kerr’s document. Mr. Fried for the Crown took the position that it was not looking to introduce evidence in response to the document but that it wished to make submissions regarding the weight if any to be placed upon the document. Mr. Kerr – now self-represented – confirmed the position taken by his counsel at the prior hearing that he wanted me to review and consider his document but he confirmed that he was not asking to re-open the hearing.
[19] After hearing the Crown’s submissions, Mr. Kerr appeared to reverse himself. He declared that he did wish to re-open the case after all. He added that he also wished to bring a s. 11(b) Charter application. In light of his stated intention to retain counsel, I did not question him regarding the grounds for either announced application. Rather, I fixed a date to deliver my ruling (December 16, 2019) and advised Mr. Kerr that if he had an application to bring, he must arrange to file it by December 1, 2019 with or without new counsel and I would hear that application on December 16, 2019 first in order to decide whether any application that he might bring offered grounds to defer delivering my decision any further.
[20] Mr. Kerr did not retain new counsel nor file any application prior to December 1, 2019 as directed. Instead, I received a further “private and confidential” letter from Mr. Kerr. Beyond verifying that the letter did not contain an application corresponding to the direction I gave on October 31, 2019, I did not review the contents of the letter and whatever it contains is neither in evidence before me nor does it form any part of the sentencing decision I am rendering this day. I am accordingly rendering my sentencing decision, including my decision on the Crown’s dangerous offender application and Mr. Kerr’s Charter application, at this time. I have directed that the further letter sent by Mr. Kerr be made a sealed lettered exhibit for the purposes of ensuring a complete record.
Background facts
(a) Circumstance of the offences
[21] I described the factual background of the three offences for which I convicted Mr. Kerr in my detailed reasons issued on December 8, 2017 (reported at 2017 ONSC 7305) and I do not propose to repeat that at length here.
[22] The events in question occurred in 2014 while Mr. Kerr was incarcerated and facing charges arising from a complaint made by a former girlfriend named “T.M.”. Already subject to a long-term supervision order, Mr. Kerr faced a potentially lengthy period of incarceration arising from these additional charges[^2]. I found that Mr. Kerr obstructed justice by attempting to prevent the complainant from testifying against him in that upcoming criminal trial. When it seemed that these efforts to prevent her from testifying would not bear fruit, Mr. Kerr actively solicited the assistance of his one-time cellmate (and later that of an accomplice named “Stuart” proposed by his cellmate to assist in carrying out the scheme) to have Ms. T.M. killed.
[23] The plans to accomplish this murder were both detailed and deadly serious. They were not, however, successful. This lack of success was through no lack of effort on Mr. Kerr’s part. His cellmate went to police straight away and co-operated thereafter. The accomplice retained to help carry out the killing was in fact an undercover officer introduced by his cellmate. Ms. T.M. was unharmed.
(b) Circumstance of the offender
(i) Family history
[24] Mr. Kerr was born in 1974 and raised in Brockville, Ontario where he has lived – while at liberty – for all of his adult life. He is currently 45 years old.
[25] Mr. Kerr’s childhood was a difficult one. He was subjected to sexual abuse (outside of his family) as an adolescent. Mr. Kerr’s father left the family when he was six years old and he had very little contact with him thereafter. He has no contact with him now. I shall refer to other aspects of his early history in connection with the Gladue report issues below.
[26] Mr. Kerr has three older half-siblings. His sister and one of his older brothers live in Ottawa while the other older brother lives in Brockville. His mother, with whom he generally lived while at liberty, passed away in 2017.
[27] Mr. Kerr has never been married. He has had a number of relationships with women but none would be described as long-term. Most but not all of them were beset by incidents of domestic violence to some degree, the degree of violence generally increasing with the passage of time. Two of those relationships resulted in the birth of children - both sons. The eldest son is now 26 years of age but has had no contact with Mr. Kerr for approximately 20 years. The youngest is now 17 years of age.
[28] Although Mr. Kerr has not been able to see the youngest son since the boy was approximately 4 years old[^3], he has maintained contact with him through periodic phone calls. Mr. Kerr took part in enabling his elder sister to adopt the youngest son when he was apprehended from his birth mother by the Children’s Aid Society. The child now lives in Ottawa with Mr. Kerr’s sister who is the child’s adoptive mother.
(ii) Education history
[29] Mr. Kerr repeated Grade 8 and then left school before completing Grade 9. He underwent some vocational training until he reached 16 years of age.
[30] It should be noted that Mr. Kerr subsequently managed to complete his high school diploma by taking advantage of the opportunities offered to him to pursue his education while in custody. He was awarded his Secondary School Graduation Diploma in June 2010. He has also taken the initiative to seek out and complete a large number of other educational and other programs offered to him while in custody. For that diligent effort, he is to be sincerely congratulated.
[31] As shall be seen, his efforts in this direction have not been matched with efforts to work through programs designed to address his deep-seated psychological problems. However, I find grounds for some optimism that Mr. Kerr will in future be able to translate this demonstrated diligence in pursuing educational opportunities to pursue the still-higher goal of coming to understand and master the aspects of his psychological make-up that he has thus far been unable to contain or control.
(iii) Work history
[32] Mr. Kerr has only a very limited and sporadic work history. His education history limited his options. He sought whatever jobs he could find. Among other jobs, he worked as a dishwasher/bus-person in a restaurant and as a building custodian. His working career was not long-lasting, frequent periods spent in custody doing little to help in that department. He began receiving ODSP benefits in 1997 and continued to receive such benefits until he was incarcerated in 2005.
[33] While there is some evidence that he may have worked “under the table” while receiving ODSP benefits, there is no indication that this was stable or continuous. With the exception of a relatively brief period in the community while subject to a long-term supervision order, Mr. Kerr has been detained since 2005 and has had no material work history since that time.
[34] He has pursued what opportunities were available to him to gain work experience within the institutions where he has been incarcerated, but that experience has also been somewhat chequered and marred by minor conflicts and disputes.
(iv) Offence history
[35] Mr. Kerr’s record of entanglements with the law is a long one that encompasses substantially all of his adult life and includes more than thirty convictions.
[36] Excluding Mr. Kerr’s record as a juvenile, Mr. Kerr’s record (prior to the index offences) may be summarized as follows, all incidents having occurred in Brockville or the surrounding area and are sorted by the offence date (where known) rather than the conviction date:
a. 1996-04-19: convicted of assault and sentenced to 21 days intermittent.
Offence date: December 16, 1995. The victim was a girlfriend named Tracy. Following an argument in a bar, Mr. Kerr grabbed Tracy by the hair and rammed her head into a railing. Mr. Kerr pleaded guilty to this charge and claimed to be too drunk to remember the circumstances but accepted the Crown summary as true when pleading guilty.
b. 1998-11-27: convicted of aggravated assault and possession of a weapon for which a sentence of 2 years less a day and probation of 2 years was imposed.
Date of offence: August 30, 1997. Mr. Kerr stabbed an unarmed acquaintance five times with a knife he was carrying and also admitted to having punched and kicked him several times as well. He was convicted and his self-defence argument rejected. Mr. Kerr’s testimony was found to be “so incredible as to be not worthy of belief and not possibly worthy of belief”. The incident was described by the sentencing judge as a “vicious attack” undertaken with “minimal provocation”. The injuries suffered by the victim were life-threatening. Mr. Kerr had been drinking prior to the incident and his probation included a term prohibiting the purchase or consumption of alcohol. Note: the next FOUR convictions all relate to occurrences while Mr. Kerr was at large on the recognizance entered into following the above-noted incident and prior to his trial on that matter.
c. 1997-10-10: convicted of assault, fail to comply with recognizance and mischief under $5,000 and sentenced to a total of 35 days.
Offence date: October 5, 1997. The victim was his mother who he was found to have attacked and been abusive towards while she was putting his five-year old son to bed. He hit her, caused her to twist her foot and broke glassware, china and a bathroom door. He also consumed alcohol contrary to an outstanding undertaking in a recognizance given the prior month (see aggravated assault conviction above).
d. 1998-02-06: convicted of assault and sentenced to 30 days (plus 6 days pre-sentence custody).
Offence date: January 31, 1998. The victim was a girlfriend of approximately two months named Debbie. Mr. Kerr was subject to a recognizance (see aggravated assault conviction above) when he punched her in the mouth. He pleaded guilty to this offence.
e. 1998-08-07: convicted of assault and failure to comply with recognizance and sentenced to a total of 45 days.
Offence date: August 4, 1998. This incident also occurred while Mr. Kerr was subject to terms of a recognizance (see aggravated assault conviction above). The victim was a girlfriend named Candi.
f. 1998-09-22: convicted of failure to comply with recognizance and sentenced to 2 days (plus 11 days pre-sentence custody).
Date of offence: September 12, 1998. Mr. Kerr had been released early from the 45-day sentence imposed on August 7, 1998. He was apprehended days later in having possessed or consumed alcohol contrary to the undertaking given by him in the recognizance governing his release on the aggravated assault charge that had not yet been tried (discussed above). The time gap between this conviction and the next incident is attributed primarily to the time served in custody under the aggravated assault conviction.
g. 2001-01-29: convicted of mischief under $5,000 and sentenced to 9 months probation plus time served (4 days).
Date of offence: October 7, 2000. Mr. Kerr’s plea of self-defence to an assault charge involving a girlfriend named Tammy was successful but he was convicted of destroying his mother’s telephone. Mr. Kerr was still subject to the probation order relating to the previous charge at this time. The probation order included an order that he not associate with Tammy.
h. 2001-05-14: convicted of assaulting a police officer and uttering threats and given a suspended sentence and three years probation.
Date of offence: April 10, 2001. Mr. Kerr was convicted of threatening his mother in an incident that after he had destroyed two of her telephones and threw them in the garbage. The assaulting police officer charge arose from spitting on the attending police officer. This incident occurred while Mr. Kerr was on probation from the mischief charge (also involving his mother) made on January 29, 2001. A mitigating fact taken into account on sentencing was a psychiatric report evidencing that Mr. Kerr was beginning to receive treatment. A condition of probation imposed based upon that same report was that Mr. Kerr abstain from purchasing or consuming alcohol.
i. 2002-11-01: convicted of fail to comply with probation order and given a $200 fine.
Date of offence: July 28, 2002. Mr. Kerr pleaded guilty to consuming alcohol contrary to terms of his probation. He had been apprehended while walking down the street visibly impaired. In mitigation of sentence, it was noted that he was then under active psychiatric treatment.
j. 2003-09-19: convicted of two counts of assault, failure to comply with probation order and failure to comply with recognizance and sentenced to 45 days in addition to 89 days of pre-sentence custody;
Date of offences: March 1, 2003, May 12, 2003 and June 18, 2003. Mr. Kerr was found to have consumed alcohol on March 1, 2003 contrary to the terms of his probation. The other two convictions relate two incidents involving a recent girlfriend named Ellen. In the first incident, Mr. Kerr kicked Ellen while under the influence of alcohol contrary to terms of his probation. In the second incident, despite a prohibition in his recognizance barring him from contacting Ellen, Mr. Kerr went to her apartment, attempted to persuade her to change her story, prevented her from leaving the apartment and punched her in the jaw knocking her down. He met her again the following day and became enraged but did not pursue her when she left. Mr. Kerr pleaded guilty to these charges and admitted the facts as stated by the Crown on sentencing. As noted, these incidents occurred while Mr. Kerr was on probation.
k. 2004-01-12: convicted of assault, failure to comply with probation order and uttering threats and sentenced to 8 months in addition to 84 days pre-sentence custody plus three years of probation.
Date of offence: October 17, 2003. This was the third assault incident involving Ellen. Despite a term of probation (from the previous conviction) barring him from annoying, harassing or molesting Ellen, he went to see her the day of his release from custody. He punched her twice in the head and threatened to harm her further if she contacted police. Mr. Kerr pleaded guilty. As noted, these incidents occurred while Mr. Kerr was on probation.
l. 2005-02-10: convicted of two counts of assault and failure to comply with probation order and sentenced to a total of 6 months in addition to 204 days of pre-sentence custody plus 1 year conditional and 3 years probation.
Date of offence: July 18 and July 21, 2004. The convictions followed a negotiated guilty plea. These two incidents – the fourth and fifth assaults upon Ellen – occurred less than one month following Mr. Kerr’s release from custody on June 22, 2004. Both incidents followed arguments where Mr. Kerr suspected Ellen of infidelity. In the first, he knocked her to the ground. In the second, he punched her in the head and broke her nose. Mr. Kerr was on probation at the time of these incidents. The terms of his release prohibited him from annoying, harassing or molesting Ellen when these offences occurred.
m. 2008-04-24: convicted of break and enter with intent, uttering threats and failure to comply with probation order and sentenced to a total of five years in addition to pre-sentence custody plus ten-year long-term supervision order.
Date of offence: August 16, 2005. Within 60 days of being released from custody on the prior assault charges involving Ellen, Mr. Kerr entered Ellen’s apartment by cutting a screen on a window with a knife he brought with him, entered her apartment and confronted Ellen and her estranged husband Rick. He threatened both of them with death. Mr. Kerr pleaded guilty. He was on probation at the time of this incident and prohibited by his parole terms from contacting Ellen.
[37] The last set of convictions listed above gave rise to the first Crown application to have Mr. Kerr declared a dangerous offender. I shall review the decision of Waugh J. below. In summary, Waugh J. found “that there is a reasonable possibility that the risk posed by Mr. Kerr to the community at large and vulnerable women in particular can be reduced by designating him a long-term offender and imposing a lengthy penitentiary sentence followed by a 10 year supervision order”. He was given a total sentence of five years net of pre-sentence custody plus the ten-year supervision order mentioned.
[38] Mr. Kerr reached his statutory release date on August 24, 2011. By a decision dated August 17, 2011, the Parole Board imposed a number of conditions upon his statutory release including abstaining from alcohol and drugs, reporting all relationships, intimate or otherwise, with a female and residence within a CRF. His warrant expiry date was April 23, 2013.
[39] The attempt to effect a re-insertion of Mr. Kerr into the community at that time was not without incident. A warrant of apprehension and suspension was issued one week after his release following a breach of the condition that he report all relationships with women. When apprehended, he had the name and number of “Michelle” on a scrap of paper in his pocket. His statutory release was revoked by a decision of the Parole Board dated May 2, 2012.
[40] Mr. Kerr was statutorily released again with a strict residency requirement on October 4, 2012 and was assigned to the Hamilton CRF. A second warrant of apprehension and suspension was issued a few months later on February 6, 2013 due to further violations of the requirement to report all relationships with women. Among other things, the Parole Board decision released just two weeks prior to his warrant expiry date noted allegations of stalking a woman. He was also found in possession of two cell phones, one of which had pornography on it. The Parole Board imposed additional conditions upon Mr. Kerr, including a 180 day residency requirement in a CRF, which conditions would continue apply to his LTSO that would come into force upon warrant expiry shortly thereafter.
[41] By a decision dated October 17, 2013, the Parole Board extended the residency condition of his LTSO by a further period of 180 days. Each of the above-noted Parole Board decisions contained further particulars of Mr. Kerr’s breach of his release conditions and the reasons for the Board’s conclusion that Mr. Kerr appeared to be returning to his offence cycle.
[42] Mr. Kerr was apprehended for the last time on October 31, 2013 as a result of the charges in relation to Ms. T.M. (charges which, it is to be noted, resulted in an acquittal after a trial but after the events giving rise to the index offences before me). Mr. Kerr has been in custody continuously since then.
[43] The overwhelming majority of the offences for which Mr. Kerr has been convicted falls into two broad categories: violence (or threats of violence) and breach of terms governing his release (probation or recognizance). In all but one of the cases of violence for which was convicted, the victims were women: his mother in two incidents and girlfriends in the others. Alcohol abuse played a prominent role in many of the incidents of violence and many of his convictions for breach of recognizance undertakings or probation terms related to consumption of alcohol despite prohibitions in that regard imposed as a condition of his release.
[44] The time between Mr. Kerr’s first adult arrest in April 1996 (at the age of 21) until his most recent return to custody in October 2013 covers a span of approximately 17 years. During that entire time, substantially his entire adult life, Mr. Kerr was in custody, released on recognizance conditions or subject to probation orders on a nearly continuous basis. During that 17-year time span, Mr. Kerr served just under four years pre-sentence custody, received more than 8½ years in total custodial sentences and was subjected to more than 13 years of probation orders (although some of the latter overlap each other or were effectively superceded by the long-term supervision order). I have not attempted to calculate the time spent subject to the recognizances accompanying his various arrests.
[45] I have not recorded here incidents where charges were not proceeded with for a variety of reasons nor have I made reference to Mr. Kerr’s juvenile record. A review of those additional circumstances does not improve the overall picture of Mr. Kerr’s offence history that emerges.
[46] All but the first two incidents reviewed occurred while Mr. Kerr was subject to the terms of an outstanding recognizance undertaking or a probation order or both. As can be seen, strict release conditions have not had much deterrence effect. Nothing in the criminal justice toolbox has proved effective at protecting the community from further breaches of the peace by Mr. Kerr save isolating Mr. Kerr from it. Indeed, the index offences before me were committed while Mr. Kerr was actually in custody. Attempts have been made to condition Mr. Kerr’s release into the community upon abstention from drugs or alcohol since substance abuse has played a role in so many of the incidents giving rise to convictions. Attempts have also been made to keep him away from former romantic partners or to require him to disclose all new relationships with women. All such conditions have been breached – sometimes repeatedly and often within a very short span of time after they were imposed. Despite being under some form of control – be it release conditions or actual custody – for practically his entire adult life, Mr. Kerr has persisted in committing offences. He has demonstrated a high degree of immunity from traditional forms of dissuasion/deterrence and shown no sign of having gained sufficient insight into his behaviour to avoid it voluntarily.
(v) History of psychiatric assessment and treatment prior to LTSO
[47] Up to the time of the issuance of the LTSO by Waugh J. on April 24, 2008, Mr. Kerr had been subject to assessment or been under the care of a variety of mental health professionals to some degree at least on a nearly continuous basis since shortly after the stabbing incident in 1997.
[48] On September 16, 1997, Mr. Kerr’s family physician Dr. Argue referred him to Brockville Psychiatric Hospital. The referral notes indicate that he has “anger with life in general” and “has assaulted his ex-girlfriend (Dec 1995)” and was due in court the next day on the aggravated assault charge and that there was a “court order to see a psychiatrist” and that his was a “very angry presentation”. He was referred for anger management at the Community Counselling Group.
[49] Following his sentencing for aggravated assault, Mr. Kerr was assigned to Guelph Correctional Centre. While in custody there, he was assessed by a psychologist (Dr. Piscione). In many ways, Dr. Piscione’s report of March 9, 2000 reads like a summary of Dr. Iosif’s 2018 report prepared for the purposes of this proceeding. Sadly, little has changed as regards Mr. Kerr’s underlying behavioural issues in the intervening 18 years.
[50] A few extracts from Dr. Piscione’s report accurately captures its essence:
• “inconsistent response to treatment”,
• “only attended two sessions and then quit”,
• “fails to learn from past experiences”,
• “impulsive and highly distractible”,
• “lacks cognitive flexibility … is unable to see alternatives and all events take a black and white perspective … unable to modify, mollify or moderate his responses”,
• “behaviourally gets stuck like a “needle on a record” repeating a response and unable to approach a problem in a different way”,
• “perceives himself as a victim”; and
• “without ongoing intensive treatment, the prognosis and outlook for Brian is very poor”.
[51] A report dated October 31, 2000 from psychologist Dr. Christopher Holmes to Mr. Kerr’s parole officer described Mr. Kerr as “a very disturbed young man” whose “treatment needs are significant”.
[52] Following the April 10, 2001, incident involving his mother referenced above, Mr. Kerr was admitted for to Brockville Psychiatric Hospital for just over a month where he came under the care of Dr. McFeely. Dr. McFeely’s discharge report dated May 14, 2001 noted that Mr. Kerr connected the incident with his mother in April to anger he was feeling in relation to a girlfriend that he believed was “messing with other men”. The report noted indications that his “Borderline Personality Disorder borders over into psychosis when he is under pressure” and Mr. Kerr’s admission that “when under stress he can get angry quickly”. It also referred to him as having “a heavy history of street drug abuse and alcohol abuse”.
[53] Mr. Kerr’s description of this period to Dr. Iosif suggests that he viewed his sessions with Dr. McFeely at least in part as a means to build a case to receive ODSP payments, a development that Dr. Holmes reported to Mr. Kerr’s probation officer would “undermine the little motivation he has”.
[54] While on parole, Mr. Kerr regularly saw Dr. Holmes between October 17, 2000 (first session) and November 17, 2001 (last session). The reports of these sessions include numerous accounts of Mr. Kerr’s recurring jealousy vis-à-vis a girlfriend. The concluding report notes “[t]reatment for emotional/anger management, skills training and relationship issues is strongly recommended”.
[55] Mr. Kerr was admitted to the Secure Treatment Unit of the St. Lawrence Valley Correctional & Treatment Centre on February 26, 2004. In the course of that time, he was seen by Dr. Bradford who prepared a “pre-parole” report concerning Mr. Kerr dated March 24, 2004. Dr. Bradford’s report noted that Mr. Kerr “denied having a psychiatric diagnosis” but described him as having “evidence of positive features of schizophrenia or delusional disorder, although these are mild” mostly taking the form of “what appears to be delusional jealousy and in general, some paranoid feelings that relate to this”. The report considered that “the risk for violent recidivism in Mr. Kerr is significant” and concluded that he “needs to develop considerable insight into his difficulties” and offered a guarded prognosis provided plans “must include substance abuse, treatment and monitoring”.
[56] Dr. Tessier prepared an “Administrative Discharge Summary” upon Mr. Kerr’s discharge from the Treatment Centre on June 21, 2004. The report notes continuing issues with “anger towards women in general, especially previous girlfriends who he claims cheated on him” as well as Mr. Kerr’s negative views of the anger management and substance abuse programs undertaken (but not completed) while in custody. He was described as someone who “did not present as a highly motivated individual” who “did not appear ready to make significant changes to his lifestyle” who did not accept responsibility for past criminal activities. He was ejected from the Anger Management program at the Treatment Centre after completing only 9 of 20 sessions following an altercation with another participant.
[57] I shall review the psychiatric evidence adduced in connection with the first dangerous offender proceeding regarding Mr. Kerr in the section next following. Following those proceedings and the long-term offender designation that resulted from them, Mr. Kerr was the subject of a Psychological Risk Assessment report dated November 19, 2008 prepared at Joyceville Prison by Dr. Jaqueline Cimbura in connection with a request by him to be considered for parole. Mr. Kerr co-operated with this assessment. He reported to her that his childhood had been “good” and could think of nothing from his childhood that might have contributed to his situation. He suggested that his history of domestic violence charges were more a reflection of the women he dates as they tend to be promiscuous but denied culpability for most of his prior charges. Dr. Cimbura reviewed the actuarial risk assessment data, both static and dynamic, and concluded that he is in the moderate to high-moderate range for general recidivism and “in the high-moderate range for violent recidivism when all of the variables are considered”. She also noted that “impaired insight, a lack of respect for court-imposed sanctions and a tendency to externalize/minimize responsibility for his actions are also key factors that need to be taken into account”. She expressed concern that Mr. Kerr had not yet had the opportunity to participate in core programming and that “[g]iven the extent of his difficulties, he will require a lengthy and sufficiently intensive course of programming with regular follow-up”.
[58] Mr. Kerr was subjected to a number of psychiatric and psychological assessments while under statutory release from his 2008 sentencing or when Correctional Services Canada staff were preparing recommendations to the Parole Board with respect to the conditions to apply under his Long Term Supervision Order. As summarized in a January 25, 2013 report from his parole officer, these assessments “have resulted in consistent findings” and “his contributing factors to his offence cycle remain unaddressed”.
(vi) 2007-2008 Dangerous Offender proceeding
[59] I propose to review only briefly the history of the first dangerous offender application brought by the Crown in respect of Mr. Kerr. I have noted earlier that Waugh J.’s decision of April 24, 2008 found Mr. Kerr to be a long-term offender and sentenced him to five years in penitentiary to be followed by a ten-year long-term supervision order.
[60] The determination that I must make on this proceeding is of course to be based on all of the evidence before me and as of the present time. The Crown’s obligation to prove its case beyond a reasonable doubt is not diminished by the findings of Waugh J. more than ten years ago. That being said, the findings of Waugh J. and the evidence before him form part of the chronology that has led Mr. Kerr to where he is today. It is the risk to the community posed by the Mr. Kerr of today – or indeed the Mr. Kerr at the end of a potential “standard” sentence – and not the Mr. Kerr of eleven years ago that I must consider in order to decide this application.
[61] Waugh J. heard from two forensic psychiatrists. The first was Dr. Hucker, appointed by the court to perform an assessment. Dr. Hucker was able only to perform a “file review” assessment of Mr. Kerr due to the latter having declined to allow himself to be interviewed on legal advice (as was his right). The second was Dr. Bloom, retained by the defence. Dr. Bloom’s report was prepared with the benefit of a file review and co-operation from the subject, Mr. Kerr. In addition to the two forensic psychiatrists, Waugh J. received testimony from two treating psychiatrists who treated Mr. Kerr while he was an inmate in the Secure Treatment Unit of the St. Lawrence Valley Correctional & Treatment Centre for five months in 2004, Dr. Balmaceda and Dr. Bradford.
[62] The diagnosis of the two treating psychiatrists was of “paranoid psychosis substance and stress induced and a personality disorder with borderline anti-social traits” (Dr. Balmaceda) and “substance induced psychosis and a delusional disorder jealous type as well as a paranoid personality disorder” (Dr. Bradford). Waugh J. noted that Mr. Kerr committed his next domestic assault less than 30 days after being released from the Treatment Centre.
[63] Waugh J. summarized Dr. Hucker’s evidence in this way:
It was Dr. Hucker’s observation that Mr. Kerr is a complex case with many mental health issues and that in dealing with problems of personality development it is very difficult to undo the combination of ‘nurture’ and ‘nature’ that this problem presented.
[64] Dr. Hucker’s report noted that “Mr. Kerr has been exposed to a number of mental health programmes but he has shown consistently poor or poorly sustained motivation” and that his “deficits have been well-identified by professionals in the past but their interventions have been to no apparent avail”. His report concluded that Mr. Kerr is a “very high risk of engaging in future domestic violence and moderately high risk of general violence” and that his “ability to modify his proneness to violence is questionable based on his past performance though a sufficiently intense programme applied in a custodial setting for an extended period of time may make some difference”.
[65] Dr. Hucker did not provide a firm diagnosis in light of the limitations of his file review. However, he concurred with the observations of Dr. Simourd, a psychologist retained by Mr. Kerr’s lawyer in 2006, that Mr. Kerr “is not psychopathic but he has a moderately high score and certainly has moderately severe antisocial and borderline personality disorders” which “are not easy conditions to treat”. He concluded that “Mr. Kerr is a very high risk of engaging in future domestic violence and moderately high risk of general violence”.
[66] Dr. Bloom’s report proposed a higher degree of optimism about Mr. Kerr’s prospects for treatment but did not materially disagree with many of the conclusions that Dr. Hucker reached. Among Dr. Bloom’s observations:
• “[a]lthough Mr. Kerr was seemingly prepared to accept responsibility for past aggressive behaviours towards females, there was a strong element of deflecting blame, looking to characterize himself as a non-violent victim … and as an individual motivated for change even though he has not, to date, autonomously sought treatment for his substance abuse and anger/aggression/domestic violence problems”;
• “I had some concerns about Mr. Kerr’s credibility”;
• Dr. Bloom described Dr. Piscione as having captured “Mr. Kerr’s psychology, limitations and mental fragility unusually well” and referenced Dr. Piscione’s conclusion that “without ongoing intensive treatment, the prognosis and outlook for Brian Kerr is very poor”;
• “Mr. Kerr described a number of instances to me that suggest paranoia, and possibly paranoid delusions”;
• “Mr. Kerr appears to have minimal insight into his psychological and emotional functioning, the severity of his substance abuser, anger and violence problems and the impact his behaviour has on others”;
• “only a minority of the intimate relationships that he has been involved in over the course of his late adolescent/adult lifetime do not involve violence” and “[c]oncerns about the fidelity of his partner, wich Mr. Kerr appears to suspect more often than not … is almost invariably in the background irritating Mr. Kerr … until some event or exchange sparks a burst of aggression”;
[67] Dr. Bloom advanced a provisional diagnosis of “mixed personality disorder with paranoid, schizotypal, antisocial and borderline personality features”. Untreated, Dr. Bloom concurred with Dr. Hucker that Mr. Kerr “is at significant risk for violent recidivism”. He also attached significance to the fact that “Mr. Kerr has yet to exhibit autonomous interest in self-improvement” and found that he has “poor prospects for having sustaining, meaningful and ultimately non-violent relations with females”.
(vii) Correctional Services history
[68] Mr. Kerr has been institutionalized for a significant part of his adult life. The record of Mr. Kerr’s life while in custody – both at the federal and provincial level – is thus a voluminous one. Mr. Kerr’s correctional record provides little grounds for optimism as regards the possibility of a successful re-integration into the community. Dr. Iosif’s summary, with which I concur from my own review of the correctional file, is that “Mr. Kerr had significant institutional and parole difficulties, and little success in completing programming as recommended by psychology, psychiatry, his case management team and the National Parole Board”. Much of Mr. Kerr’s time in penitentiary has been spent in segregation whether at his own request or on the recommendation of the correctional officers due to various issues or conflicts arising with other inmates.
[69] As noted earlier in these reasons, Dr. Cimbura made specific recommendations for programming for Mr. Kerr while he was in Federal custody in November 2008. Mr. Kerr’s history of following that programming and benefitting from it was not a positive one. I shall quote the summary of Parole Officer Teresa Johnson from October 10, 2012 (emphasis added by me and acronyms translated initially):
Recommendations were initially for Mr. Kerr to complete the [High Intensity Family Violence Prevention Program], following which a determination would be made as to requirements for [Violence Prevention Program – Moderate Intensity]. He subsequently began the VPP-MI as the HIFVPP was not available. He was suspended from the program due to his negative and derogatory attitude towards the CPO and late/lack of attendance. He was subsequently referred to the Integrated Correctional Program Model (ICPM) High Intensity Multi Target Program to replace the requirement for the HIFVP Program, from which he was also suspended due to tardiness and inappropriate comments during the class. He has an extensive history of domestic violence, which has remained unaddressed to date.
[70] Ms. Johnson’s report recommended that Mr. Kerr receive the National Moderate Intensity Family Violence Program and the Violence Prevention Program. His record of participation in these two programs was chequered.
[71] The Program Performance Report Final dated August 8, 2013 outlining his progress in the Violence Prevention Program – Moderate Intensity assigned him the status of “Attended All Sessions”. He was described as someone who stated that he was ready to change because he did not want to get a Dangerous Offender rating but that “it was apparent throughout the program that he held strong beliefs about women and about violence that remained unchanged”. He reacted badly when challenged. He described women as “messed up creatures” but claimed to have a power to see the future and to know “exactly the moment every girlfriend has cheated on him”. Nevertheless, he was described as having made “small but positive” gains or “slight progress” in a number of areas targeted by the program.
[72] The Program Performance Report Final dated November 27, 2013 outlined his experience in the National Moderate Intensity Family Violence Program assigned him the status of “Incomplete”. Mr. Kerr’s release was suspended on October 31, 2013 when he had completed 26 of 29 sessions. Comments from the report writer are suggestive of an individual who was going along to get along, providing answers that he judged likely to be pleasing rather than engaging in a meaningful level of self-examination. When probed regarding his problematic thinking in relation to women, he appeared defensive and consistently portrayed himself in the light of the victim, deflecting blame: “all women cheat” or “there’s no such thing as a healthy, monogamous relationship”. His overly-jealous and possessive behaviour was described as arising from his desire not to be cheated upon. He was considered to have made “very little gains in the area of family violence” during the course of this incomplete program and was found to have made “considerable efforts to hide and minimize his intimate partner relationship”. The conclusion to this report was that “Mr. Kerr remains unmotivated and there are no recommendations for future treatment beyond completion of his correctional programs as per his correctional plan”.
(viii) Gladue submissions
[73] Mr. Kerr indicated to me that he identifies as a person of aboriginal background. During the course of the sentencing proceedings, Mr. Kerr followed up on that assertion by requesting a Gladue Report from Aboriginal Legal Services in Toronto on July 3, 2018.
[74] The evidence regarding Mr. Kerr’s aboriginal background is somewhat unclear. There is no evidence that he has asserted that status at any time until 2009 when he requested his correctional records reflect his identification as aboriginal. Mr. Kerr advises that he may have made such a request earlier in his correctional history but this was the earliest record that could be found.
[75] Aboriginal Legal Services provided a report to me regarding their efforts on Mr. Kerr’s behalf by way of a letter dated October 8, 2018. In that letter, ALS outlined the nature of Mr. Kerr’s claim for aboriginal ancestry and their own inability to verify this claim.
[76] According to the report from ALS, Mr. Kerr alleged that he had aboriginal ancestry through his maternal grandfather. Before me, Mr. Kerr asserted that both of his maternal grandparents were aboriginal. There is, to say the least, some confusion in this regard.
[77] The confusion arises because Mr. Kerr’s mother was adopted as an infant in 1946 by a non-aboriginal family. Mr. Kerr asserts that he has been unable to assemble any information about his mother’s birth parents. While his mother’s status as an adopted child prevented him from accessing any information about who her birth parents were Mr. Kerr advised me in oral, unsworn and untested submissions that he has known of his mother’s aboriginal parents since he was six years of age. How he – or she – came by that knowledge has not been explored or explained. His mother is now deceased. ALS’s efforts to verify the information that he provided them was not successful – Mr. Kerr’s sister living in Ottawa failed to return three phone calls made to her for that purpose.
[78] The Crown was underscored the number of times Mr. Kerr has been before courts for sentencing since R. v. Gladue, 1999 679 (SCC), and in particular the very detailed dangerous offender hearing before Waugh J. that concluded in 2008, without advancing any such claim. There is no record of his identification as aboriginal ever being brought to the fore in any of those prior proceedings during which he had legal representation. During the previous dangerous offender proceeding, Waugh J. heard from four psychiatrists, three of whom conducted direct interviews with Mr. Kerr. None of them made any reference to Mr. Kerr’s assertion of aboriginal heritage and all investigated Mr. Kerr’s childhood and family background as part of their review. He also heard from Mr. Kerr directly. There is nothing in the record to suggest that Mr. Kerr mentioned his mother’s aboriginal background to anyone in the course of that proceeding whether as a fact or a factor.
[79] Mr. Kerr submitted to me that his prior silence on the issue arose from his own ignorance. He only ever heard of Gladue after he spent time in Toronto (at the time of the events leading to the charges before me) and he thought that there was no reason he should not make use of it as others have.
[80] In the final analysis, I accept that Mr. Kerr identifies as aboriginal and has done so for several years at least. Taking note of that identification is the beginning and not the end of the inquiry for a sentencing judge. In order for that identification to play a material role in this process, there must be evidence of the manner in which Mr. Kerr’s aboriginal circumstances have had an impact on him as regards matters relevant to the sentencing process. In this regard, Mr. Kerr has tendered no evidence at all. Untested and unsworn assertions made in oral argument cannot take the place of actual evidence.
[81] The Supreme Court of Canada in R. v. Ipeelee, 2012 SCC 13 emphasized that systemic and background factors operate to provide context but that “[u]nless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objective can and should be actualized, they will not influence the ultimate sentence” (at para. 83).
[82] The Court of Appeal in R. v. Radcliffe, 2017 ONCA 176 has provided a very helpful and detailed commentary on how these circumstances are to be taken into account in the context of a dangerous offender application. Among other principles I distill from that decision:
a. Characteristics that make an offender less blameworthy have little impact upon a dangerous offender application; and
b. Gladue factors may serve to establish the existence and availability of alternative aboriginal-focused means aimed at addressing the environmental, psychological or other circumstances which aggravate the risk of re-offence posed by the offender.
[83] The Court of Appeal in Radcliffe was also concerned with the admissibility of fresh evidence in connection with a sentence appeal from an indeterminate sentence. I do not consider the Mr. Kerr’s recent handwritten submission in quite the same light. It contains details concerning the sexual abuse suffered by Mr. Kerr as an adolescent – that same subject-matter is adverted to in the ALS letter of October 8, 2018 that was already an exhibit at the hearing and is covered in greater detail in various of the reports contained in the records already before me. Mr. Kerr’s handwritten letter addressed about Mr. Kerr’s personal addiction issues prior to 2003, his having witnessed abuse of his mother by his father prior to their divorce, and his mother’s problems with alcohol. Each of these issues were addressed in the ALS letter of October 8, 1918 as well as being referenced to some degree in the record submitted by the Crown. His letter amplifies his claim to aboriginal heritage but, again, this claim was also detailed in the ALS letter of October 8, 2018 as well. While the un-tested factual assertions advanced in those submission are not in evidence before me, the submissions he has made based upon the factual foundation that I did and do have are perfectly proper and entitled to be considered and given appropriate weight.
[84] There can be little doubt that Mr. Kerr’s complex background has had a profound impact on who he is and what has brought him before me for sentencing. His personal history is replete with red flags that indicate an individual with a very troubled background: substance abuse from a young age, dropping out of high school, divorced parents and progressive loss of connection to his father, repeated incidents involving intimate partners. Even without focusing on issues of aboriginal heritage in particular, almost every psychiatrist and psychologist who has assessed him or attempted to assist in his rehabilitation has remarked upon the deeply-rooted psychological issues contributing to his offending that he has thus far been unable to control or overcome. The addition of aboriginal circumstances to this complex mix of unfortunate circumstances provides additional context to be sure but does not fundamentally alter the nature of the picture. The degree of blameworthiness of the individual is a factor in a dangerous offender application, but the greater emphasis is on the degree and nature of the risk the individual poses to the public, the necessity to protect the public from that risk and the availability of means to mitigate that risk.
[85] In my view, the principal Gladue consideration that I must focus on in the circumstances of Mr. Kerr must be those bearing on the existence of alternative, aboriginal-focused means of addressing and mitigating the re-offence risk posed by Mr. Kerr. Factors bearing upon a possible attenuation of culpability are of distinctly less weight in the context of this dangerous offender hearing.
[86] In that regard, I am led once again to the conclusion that there is no material new evidence to be found in the most recent submission made by Mr. Kerr. Mr. Kerr’s recent submission expressed interest in pursuing restorative justice. He has expressed interest in ceremonial dancing, sweat lodges, smudging, root healing and others. Prior to that supplemental submission, Mr. Kerr’s counsel had already introduced without objection a letter dated July 31, 2019 from Rev. Leigh Kern, the Coordinator of Indigenous Ministries of the Anglican Diocese of Toronto attesting to Mr. Kerr having recently begun to participate in a healing circle. There can be no doubting that Mr. Kerr has expressed a willingness to participate in such programs. That willingness – even if of recent vintage – is of course commendable.
[87] What is entirely lacking in the evidentiary record is any evidence that these alternative approaches offer a reasonable prospect of materially mitigating the risk posed by Mr. Kerr. What is required is concrete evidence of the existence and availability of community resources – including aboriginal community resources – that will provide the essential level of extra-custodial supervision to protect the public adequately. Mere hope is inadequate to the task of protecting the community: Radcliffe at para. 58 citing R. v. Smarch, 2015 YKCA 13 at para. 48. There is simply nothing in the record – including the additional materials recently filed by Mr. Kerr – that rises to that level.
Issues to be decided
[88] Has the operation of Part XXIV of the Criminal Code resulted in a violation of the rights of Mr. Kerr pursuant to s. 7 or s. 12 of the Charter?
[89] Has the Crown discharged its burden to establish that Mr. Kerr is a dangerous offender as that term is defined pursuant to s. 753(1)(a) of the Criminal Code beyond a reasonable doubt?
[90] If Mr. Kerr is found by me to be a dangerous offender, what sentence is appropriate?
Analysis and discussion
(a) Has the operation of Part XXIV of the Criminal Code resulted in a violation of the rights of Mr. Kerr pursuant to s. 7 or s. 12 of the Charter?
[91] There were several problems associated with the last-minute Charter application brought by the defence. The application was entirely contained within the respondent’s factum filed on the Friday before a long weekend responding to a Crown application scheduled for a full hearing on the next business day (i.e. Tuesday). No prior notice of a constitutional question was given nor were the Rules complied with. There was no evidence offered to explain why it was impossible or impractical to comply with the established notice requirements or otherwise in the interests of justice to accept the late-filed informal application.
[92] The dangerous offender procedure under Part XXIV of the Criminal Code is fairly complex and produces a certain amount of inevitable delay – all the more reason to be vigilant of avoidable delay. In the present case, twenty months and multiple court appearances were required to schedule and hear the remand motion, select the expert and obtain a report from her, to permit the defence time to secure Legal Aid funding for a responding expert, to allow time for such defence expert to be retained and to conduct his or her own review and then to obtain the advance booking of four days of court time where judge, counsel and experts could all be in the same courtroom at the same time for a hearing on the merits. Dangerous offender proceedings can in some cases be more complex and time-consuming than the trial of the index offences themselves – this is such a case. This hearing was scheduled many months in advance. It was done prior to finalizing the engagement of a defence expert on the understanding that Practice Court would be promptly advised should it appear that the timetable needed altering to account for the defence expert’s timing issues (ultimately, no defence expert was called).
[93] In the present case, I was persuaded by both parties that the Charter application should be heard notwithstanding these serious deficiencies. While the Crown did not waive compliance with the formal notice requirements, Mr. Fried advised me that, in the circumstances of this case, he was nevertheless prepared to proceed with the hearing of the Charter application on its merits if requested to do so. The issues raised were narrow ones and no evidence other than the evidence already before the Court was required by either party. Mr. Fried did not advise me that he required more time to prepare his response and no party was urging an adjournment of the hearing.
[94] I granted the defence leave to present its Charter application on the merits notwithstanding the very serious procedural irregularities associated with it.
[95] The core of the defence argument was that s. 753(4.1) of the Criminal Code provides for an indeterminate sentence in the case of a dangerous offender finding by default unless certain facts are also found. Such a sentence would be a cruel and unusual sentence offending the guarantee is s. 12 of the Charter absent procedures and safeguards that fully respect the principles of fundamental justice and, in particular, the right to make full answer and defence. In the case of an offender who maintains his innocence of the index offences and seeks to pursue an appeal of that finding, the defence submits that it is deprived of the opportunity to make full answer and defence. This is said to arise because, in this case at least, absence of remorse and insight into the offence is a material element of the expert assessment process conducted pursuant to s. 752.1 of the Criminal Code. That assessment process in turn is a significant element of the evidence examined by the court to determine whether and to what degree the offender constitutes a future threat to the community by reason of the intractable nature of the offender’s violent conduct. Thus, the defence submits, lack of remorse is effectively transmogrified into an aggravating circumstance that weighs against him instead of merely being an absent mitigating circumstance. Further, in cases where an operative personality disorder is integral to the expert’s diagnosis, the ability of the defence to retain a responding expert is ineffective because remorse and insight into the index offence would be a material criterion in any professional assessment by whomever conducted. An offender is thus confronted with the choice of abandoning his or her claim to innocence or being found to have traits of an intractable violent offender by reason of maintaining it.
[96] In my view, the defence has significantly mischaracterized the process and the role of the court-appointed expert in it. Further, making all necessary allowances for the desire of a convicted offender to pursue an appeal, the observed lack of remorse in this case is by no means restricted to the index offences. Mr. Kerr has consistently deflected or denied responsibility for substantially all of the 30-plus offences in his record to a variety of medical professionals over many years even when he pleaded guilty in most cases.
[97] The dangerous offender procedure established by Part XXIV of the Criminal Code has been carefully calibrated with a view to ensuring its application to a comparatively narrow range of offenders whose pattern of violent conduct poses a particularly acute risk to the community by reason of the high likelihood of repetition and the severity of the potential harm flowing from that risk.
[98] At the stage where an expert is appointed pursuant to s. 752.1 of the Criminal Code only limited findings are made. The Court must determine that the offence for which the offender is being sentenced is a “serious personal injury” offence and that there are “reasonable grounds to believe” that the offender might be found to be a dangerous offender under s. 753 or a long-term offender under s. 753.1. If that finding is made, then it is the Court and not the Crown who appoints an expert to conduct an assessment. Even if the Crown normally nominates the expert assessor in most cases, the defence is consulted and provided an opportunity to make submissions.
[99] The offender is not obliged to participate in the assessment process but is given the opportunity to do so. The offender may determine to consult his or her own expert and/or to decline to engage with the court-appointed expert.
[100] If the offender declines to participate, the expert is confined to the record before him or her. That record may or may not be sufficient to enable the expert to offer conclusions or opinions of utility to the court’s assessment of the Crown’s application. The Crown is obliged to prove its case beyond a reasonable doubt based upon the record as it exists and benefits from no assumptions derived from the refusal of the offender to participate in the expert assessment process. The defence is under no obligation to assist the Crown in discharging that burden.
[101] Indeed, the present case illustrates the optionality of this process. This is the second time Mr. Kerr has come up for sentencing pursuant to Party XXIV of the Criminal Code. In 2006, Waugh J. appointed an expert (Dr. Hucker) to conduct an assessment. Mr. Kerr declined to be interviewed by that expert who was accordingly confined to a review of the paper record. Instead, Mr. Kerr elected to appoint his own expert (Dr. Bloom) and fully co-operated with his own expert. Both experts testified at the hearing. In the end, Waugh J. made a long-term supervision order in addition to a fixed sentence (in 2008).
[102] In contrast to 2006-2008, Mr. Kerr elected to co-operate with the court-appointed expert (Dr. Iosif) when she was appointed by me in 2018 and was consulted on the candidates for the role before she was selected. He offered no objection to Dr. Iosif’s qualifications or fitness to accept the appointment. Although he initially indicated a desire to appoint a responding expert and was given a long window of time to enable him to do so, no defence expert was ultimately retained in this case. Dr. Iosif provided Mr. Kerr with a detailed warning of the consequences of waiving his right to silence prior to commencing her interview process. He had the opportunity but not the obligation to participate in the assessment process and freely chose to do so with full knowledge of the risks and consequences of his choice. It was in the context of that free election by him that his views of the events leading to the offences for which he was convicted were disclosed to Dr. Iosif and formed a part of her overall assessment of a voluminous file.
[103] When bringing a dangerous offender application, the Crown bears the burden of proving all of the elements necessary to support a finding that a person is a dangerous offender and must do so beyond a reasonable doubt. Lack of evidence of remorse cannot justify an assumption as to its absence. The expert may be cross-examined to establish whether such an assumption was made. Any report predicated upon such an assumption would be rejected or very significantly qualified in its usefulness as a result. The weight, if any, to be attributed to the opinion of the expert remains always and everywhere a matter for the sentencing judge to determine after a review of all of the evidence and any errors in the assessment of that evidence can be reviewed by the Court of Appeal.
[104] In my view, there is no lack of fairness in presenting the offender with the opportunity but not the obligation of participating in the assessment process.
[105] In the present case, Mr. Kerr has been found guilty of the offences for which he is being sentenced after a fair trial and beyond a reasonable doubt. There can be no basis to conduct a sentencing hearing as if he “might be” innocent. His decision to maintain innocence is certainly not an aggravating factor in the process before me in any manner, shape or form. In deciding to co-operate with Dr. Iosif’s review, it is evident that the defence determined that the Crown’s case was sufficiently strong that the benefits of co-operating with Dr. Iosif were considered to outweigh the possible detriments. That was an assessment the defence was free to make.
[106] Dr. Iosif inquired about these incidents as well as the prior ones and observed that Mr. Kerr consistently evaded accepting responsibility for any of them whether by way of outright denials or by way of explanations that absolved him of responsibility for each and every one of them. The clinical weight Dr. Iosif attached to those volunteered explanations is a matter for me to review on this application. However, Mr. Kerr had every right to maintain silence on the subject. The record contained significant evidence of his deflection of responsibility for those prior incidents. He made the choice to offer explanations to Dr. Iosif the nature of which gave rise to clinical observations on her part that are of undeniable relevance to the questions before me.
[107] In my view, the tightly-defined circumstances in which a dangerous offender finding can be made, the high burden of proof imposed upon the applicant Crown to establish that the pre-requisites exist, the right of the offender to silence and the opportunity but not the obligation of the offender to participate in the assessment process and to present evidence at the hearing of the application all ensure that the procedure is fully consistent with the principles of fundamental justice and does not deprive the offender of the right to make full answer and defence. An offender who feels practically compelled by the strength of the case assembled by the Crown to waive the right to silence is not thereby deprived of due process. A mere practical necessity arising from the strength of the opponent’s case must not be mistaken for a built-in or systemic unfairness. The defence application is accordingly rejected.
(b) Has the Crown discharged its burden to establish that Mr. Kerr is a dangerous offender as that term is defined pursuant to s. 753(1)(a) of the Criminal Code beyond a reasonable doubt?
[108] In order to prove that Mr. Kerr is a dangerous offender pursuant to s. 753(1) of the Criminal Code, the Crown is obliged to prove the following facts beyond a reasonable doubt:
a. That one or more the offences for which Mr. Kerr has been convicted and is before me for sentencing is a serious personal injury offence as that term is defined in s. 752 of the Criminal Code;
b. That Mr. Kerr 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 of which the serious personal injury offences before me form a part, showing a failure to restrain his behaviour and a likelihood of causing death or injury to others through failure in future to restrain his behaviour or
ii. a pattern of persistent aggressive behaviour by Mr. Kerr of which the serious personal injury offences before me form a part, showing a substantial degree of indifference on the part of Mr. Kerr respecting the reasonably foreseeable consequences to others of his behaviour.
[109] I shall consider the evidence for each of these essential elements of the Crown’s burden separately.
(i) Are any of the offences for which Mr. Kerr has been convicted and is before me for sentencing “serious personal injury” offences as defined by paragraph (a) of the definition of that term in s. 752 of the Criminal Code?
[110] There is no serious dispute before me regarding this essential element. Indeed, I have already made this determination when I accepted the Crown’s application for a remand for assessment under s. 752.1(1) of the Criminal Code.
[111] Mr. Kerr has been convicted before me of two counts of counselling murder in addition to a single count of obstructing justice. The counselling murder offences involved the “use or attempted use of violence against another person” and “conduct endangering or likely to endanger the life or safety of another person” as described in paragraph (a) of the definition of “serious personal injury offence” in s. 752 of the Criminal Code.
(ii) Does Mr. Kerr constitute a threat to the life, safety or physical or mental well-being of other persons by reason of a pattern of repetitive behaviour of which the serious personal injury offences before me form a part showing a failure to restrain his behaviour and a likelihood of causing death or injury to others in future due to such failure to restrain his behaviour?
[112] Section 753(1)(a) requires the demonstration of a “threat” of a particular type (to the life, safety or physical or mental well-being of others) and of a particular origin (from evidence of one or more of the types of behaviour specified in the three sub-paragraphs following). The evaluation of that threat is necessarily a prospective exercise.
[113] The designation of an offender as a dangerous offender requires more than the demonstration of some risk. Few repeat offenders would fail to pass so low a bar. In R. v. Boutilier, [2017] 2 SCR 936, 2017 SCC 64, Côté J. noted (at para. 46) that “a finding of dangerousness has always required that the Crown demonstrate, beyond a reasonable doubt, a high likelihood of harmful recidivism and the intractability of the violent pattern of conduct” [emphasis added].
[114] A dangerous offender application is not a simple exercise in counting and categorizing prior convictions. This is not a case of “three strikes and you’re out”.
[115] When assessing the risk an offender poses, care must be taken to avoid the seduction of deceptively-certain actuarial figures that are often used to translate as abstract a concept as “risk” to concrete numbers. Is the required level of probability 51% or is it 67%? What about 75%? Forecasting the future will always be an exercise in peering through the proverbial glass darkly. Actuarial figures often convey what can more accurately be described as the “least wrong” estimate. Certainty that a thing will happen is no more possible than certainty that it will not happen. Human life and experience are too complex for such a simplistic view.
[116] The risk of social harm Parliament requires the court to assess must be assessed dispassionately in the light of all of the evidence available but secure in the knowledge that it can never be described with exact precision any more than it can be reduced to nil.
[117] I shall break this essential element of the dangerous offender inquiry into its two constituent parts. First, does an examination of Mr. Kerr’s history support the finding – beyond a reasonable doubt – of the existence of a “pattern of repetitive behaviour” of which the index offences form a part showing a failure to restrain his behaviour?
[118] An examination of the factual matrix underlying the charges for which Mr. Kerr has been convicted in the past reveals a definite and distinct pattern of violent behaviour that Mr. Kerr has shown himself unable to restrain, including in the face of explicit court-ordered restrictions. The common threads that can be traced through a large part of his record include:
a. Repeated instances of violence towards many of the women, usually vulnerable women, with whom he has been in a close relationship;
b. Violence directed at controlling the actions of his victims;
c. Violence characterized by explosive anger arising from his subjective perception of infidelity, betrayal or some action of the victim to which he strongly objected; and
d. Persistence in the face of explicit release or parole conditions seeking to restrain or curtail the behaviour or even to preclude contact with the victim altogether.
[119] All of these common factors were significantly at play in the index offences before me for sentencing.
[120] Mr. Kerr sought to procure others to murder Ms. T.M. – a woman with whom he had been involved in a relationship. While murder is obviously several orders of magnitude more violent than the assaults against women for which he had been convicted in the past, this represents a difference in degree and not in kind. In a different (and non-romantic) context, Mr. Kerr demonstrated a willingness to escalate a minor altercation to the level of a serious aggravated assault. The stabbing on that occasion could well have taken the life of the victim. Mr. Kerr was in a relationship with the intended victim Ms. T.M. in the present case. Whether or not the relationship was sexual, love letters written to her in his own hand were in evidence at trial and amply demonstrate the existence of a relationship of some intimacy.
[121] Mr. Kerr’s actions were initially aimed at dissuading or preventing the victim from testifying against him (which actions resulted in the obstruction of justice conviction) and later escalated to attempting to procure her permanent silence through murder. There was ample evidence at trial of the intense anger and sense of betrayal felt by Mr. Kerr towards his intended victim Ms. T.M.
[122] Finally, Mr. Kerr persisted in his behaviour despite the considerable obstacles placed in his path. While prior assaults involving women had been committed by him personally while at liberty and in the face of probation or release conditions, these latest offences were committed while Mr. Kerr was detained. He persisted in the plan over a considerable period of time, confirming his instructions in barely-concealed terms to one of the would-be murderers (who was in fact an undercover police officer) months after his initial discussions with “Richard” on the topic. This plan was not a rash spur-of-the-moment thing; it was something considered carefully and persisted-in over a span of several months.
[123] There can be no doubt that the index offences – counselling the murder of an intimate partner deemed by Mr. Kerr to have betrayed him – form an integral part of a pattern of repetitive behaviour that has stubbornly defied all prior efforts of restraint.
[124] Second, does the future risk posed by the identified pattern of behaviour rise to the level of a “high likelihood” that other persons – known or unknown – will be at harmed in future? Any discussion of the degree of future risk posed by a particular pattern of behaviour must necessarily entail a consideration of the degree to which the behaviour is intractable or, conversely, the prospects of treatment, rehabilitation or other mitigation efforts.
[125] There is a distinct “Groundhog Day” impression that emerges from my review of Mr. Kerr’s psychiatric and offending history. The same themes of deflection/denial of responsibility, lack of insight into his own issues, reluctance to accept or genuinely participate in treatment when offered and a consistently identified high risk of further domestic violence pervades almost every professional intervention almost from the earliest days. His offence history shows an almost dogged determination to resume and repeat the very same behaviour that led him to offend in the past without alteration and this despite every legal obstacle placed in his way. Over all of these years, little to no progress has been made in addressing or resolving any of the underlying issues that have contributed to Mr. Kerr’s continual pattern of offending even if these have been consistently identified for many years.
[126] Whatever deep-rooted causes underlie Mr. Kerr’s repeated failures to contain his periodic volcanic outbursts of rage and violence, there can be no avoiding the conclusion that those causes have proved utterly immune to treatment or positive change until now. Mr. Kerr’s behaviour is the product of impulses deep in his make-up that can only be described as intractable. Nothing that has been tried in more than 20 years of iterative encounters with the criminal justice system has succeeded in deterring Mr. Kerr from offending further or in assisting him to gain sufficient insight into his own issues to make serious and lasting progress in mastering these violent impulses.
[127] Eliminating for the moment a consideration of the breach of recognizance or parole conditions, Mr. Kerr’s entire adult life has been characterized by frequent violent incidents, all but one involving women. These began at the age of 21 and have continued until the present time (he is now 45 years of age). The behaviour underlying these convictions shows a pattern of generally increasing gravity and, allowing for the considerable period of time spent in custody, frequency.
[128] Mr. Kerr voluntarily described the history of his relationships with various women in connection with the preparation of Dr. Bloom’s defence expert report in 2007 during the previous (2008) dangerous offender application brought by the Crown. Between 1995 and 2005, Mr. Kerr described relationships with seven women (starting with Tammy and culminating with Ellen). Five of those relationships gave rise to criminal proceedings involving violence visited upon his domestic partner. In each of the seven relationships, Mr. Kerr either concluded that his partner was being unfaithful or suspected this to be so and those suspicions played a material role in the incidents.
[129] From the record of these offences, it is apparent to me that Mr. Kerr has seldom been long without entering into a deep relationship with a woman, the women selected are frequently vulnerable and the relationship that arises quickly becomes obsessive and violent on his part.
[130] A consistent feature of these incidents is the strong co-relation of violent incidents with substance abuse (cannabis, alcohol or both). Substantially all of the incidents that resulted in legal charges being brought against him came on occasions where abuse of one or the other of the two drugs mentioned had occurred. On many of those occasions, Mr. Kerr was at liberty under orders requiring him to abstain from consuming drugs or alcohol. Such prohibitions appear to have had no impact on curbing his behaviour.
[131] Prior to considering the psychiatric and other evidence, my review of the circumstances of Mr. Kerr’s criminal record leads me to the following additional conclusions regarding the pattern of behaviour I have identified:
a. Mr. Kerr’s most recent history – especially the period of his involvement with Ellen – demonstrates a decreasing ability on his part to control his impulses to resort to violence in a domestic context;
b. The severity of the domestic violence incidents appears to be on an upward trajectory: the “Ellen” incidents included more than one incident of a broken nose and culminated in a forcible entry involving a knife and death threats, while the “T.M.” relationship spawned the convictions for counselling murder currently before me;
c. Jealousy – based on events real or imagined – has played a significant and continual role in the bulk of these incidents of domestic violence;
d. Alcohol and narcotics (especially cannabis) have played a material role in many of the incidents; and
e. Mr. Kerr’s behaviour has remained impervious to all of the “traditional” tools in the sentencing toolbox: lengthier periods of incarceration, stricter terms of probation and even a long-term supervision order have failed to deter him from pursuing the same pattern of behaviour.
[132] What does the expert evidence suggest regarding the pattern of behaviour and the level of risk it poses?
[133] Dr. Iosif’s expert opinion is quite entirely consistent with all of the observations I have made above independent of her evidence. I found Dr. Iosif’s opinions to be worthy of considerable weight given the depth of her exposure to Mr. Kerr and his background, her impressive credentials and experience and the careful and balanced way in which she presented her evidence (both orally and in her written reports).
[134] Dr. Iosif found that Mr. Kerr’s “likelihood for future violent recidivism falls in the moderate to high-risk category, in other words presenting a substantial risk of re-offense, especially in domestic situations”. She described his “inability to stay away from problematic relationships” and noted his lack of an invested relationship in a network of family or friends that might offer support in the community.
[135] Dr. Iosif considered a number of actuarial assessment tools. Obviously, any such probability assessment must be understood subject to their limitations. None of the tools considered is infallible but it is noteworthy that the same or similar actuarial tools have been applied to Mr. Kerr by other professionals in the past with very similar results.
[136] She scored Mr. Kerr on the Psychopathy Checklist Revised or “PCL-R” scale – one she described as the “gold standard” for the measurement of psychopathy – and arrived at a score of 20. This score is a moderate score with scores over 30 being traditionally diagnostic of psychopathy. Psychopathy is of course not the sole disorder that may influence the risk of future violence but it is a relevant one.
[137] The Violence Risk Appraisal Guide (or “VRAG”) was described by her as being “among the best actuarial methods of risk assessment”. The VRAG also incorporates the PCL-R. Mr. Kerr’s VRAG score of 6 placed him in fifth of nine ascending categories. Given the estimated margin of error associated with this score, she estimated that Mr. Kerr’s probability of risk of between 48% and 64% within ten years of opportunity. This score is indicative of a moderate probability of violent recidivism.
[138] The third actuarial risk assessment tool she applied was the Ontario Domestic Assault Risk Assessment guidelines (or “ODARA”), a tool of particular relevance given the prevalence of domestic violence within Mr. Kerr’s offense history. Mr. Kerr’s score on the ODARA placed him in the highest risk category with 70% of individuals so scored going on to commit another assault against their partner within an average of about five years.
[139] She also performed a dynamic risk assessment. Whereas an actuarial assessment provides a fixed assessment of risk at a particular point in time, an assessment of dynamic factors may assist in terms of risk management and treatment. This is an approach in which she had a lesser level of confidence given the relatively early stage of research into them. She scored Mr. Kerr using the “HCR-20 Structured Guide for the Assessment of Violence Risk”. Mr. Kerr’s score was 31 out of a possible score of 40. This is a high score “suggesting a high likelihood of recidivism at this time”. The Structured assessment of protective factors for violence risk assessment (or “SAPROF” performed by her – often used in conjunction with the HCR-20 score – was moderate generally but “high in a domestic situation”. Overall, she concluded that a consideration of these dynamic factors “does not suggest a lower overall risk for this individual”.
[140] Dr. Iosif’s overall conclusion in the risk assessment portion of her report was that “Mr. Kerr’s risk for recidivism – from a clinical and actuarial perspective – is estimated to be moderate generally, changing to high in a domestic situation”.
[141] I consider the expert opinion evidence of Dr. Iosif to be strongly supportive of the conclusions that I have reached from the other evidence before me at this stage of the analysis. Absent some reasonable prospect of a material change in Mr. Kerr, I have no hesitation in concluding that he poses a very high likelihood of threatening the life, safety or physical or mental well-being of any woman with whom he might enter into a relationship. He has seldom been long outside of a relationship while not in custody and has been non-compliant with previous orders to report relationships or avoid contact with identified individuals.
[142] Does the evidence regarding prospects of mitigation through treatment or other means mitigate the level of threat posed by this offender?
[143] I shall not repeat the comments made above regarding past efforts at controlling Mr. Kerr’s violent behaviour. The justice system has exhausted all of its traditional tools without positive results. None of these tools have succeeded in dissuading Mr. Kerr from re-offending. There is nothing in the record of Mr. Kerr to suggest that these tools will succeed in future where they have so manifestly failed in the past.
[144] Hope alone can be no substitute for reason nor can it transform an objectively intractable condition into one amenable to change. The risk of violent recidivism that Mr. Kerr poses is unacceptably high.
[145] It is important to note that the Crown is not held to prove beyond a reasonable doubt that the threat posed by a particular offender cannot be mitigated or controlled in order to discharge the burden upon it when seeking a dangerous offender designation: R. v. F.E.D., 2007 ONCA 246 at paras. 39 and 44. Proof of such a negative fact would be impossible. The prospects of mitigation or control through successful treatment of the offender have always been a factor entering into the assessment of the degree of risk to the community posed by a particular offender: outilier at para. 23.
[146] Dr. Iosif diagnosed two psychiatric disorders impacting upon Mr. Kerr: unspecified personality disorder with strong antisocial traits and polysubstance use disorder, the latter having been found by her to be in remission in the controlled setting in which Mr. Kerr currently resides at least. She found that “both diagnoses have been extant for Mr. Kerr since adolescence and are well-entrenched”. She also concluded that both “require intensive, long-term (possibly indefinite) psychological treatment” if there is to be any prospect of an enduring change in his behaviour. The substance use disorder has augmented his tendency towards violence. She found that Mr. Kerr has shown little insight into his behaviour thus far, reverting to denial and minimization. She found that he is “not psychologically minded” and “his motivation to change and response to treatment are unclear”. She described the dynamic in his relationship with women of “attaching himself deeply and quickly, then reacting to perceived or confirmed infidelity by these partners”. She noted that he continued to pursue such relationships undeterred despite the clear evidence that such relationships have repeatedly resulted in his being arrested and incarcerated as a result of the violence – and severe violence – that followed. Having carefully considered her evidence, both the opinions she expressed and the factual foundation upon which they were based, I find myself in full agreement with the conclusions she expressed.
[147] The prospects of achieving a material mitigation of the high level of risk currently posed by Mr. Kerr to others are purely speculative at the present time. The evidence of an entrenched pattern of behaviour in Mr. Kerr is very strong. The prospects of breaking that pattern are entirely unknown.
[148] The index offenses form part of a pattern of repetitive behaviour showing a failure on Mr. Kerr’s part to restrain his behaviour and there is a likelihood of his failure to control such behaviour in future causing death or injury to other persons or inflicting severe psychological damage on other persons. Mr. Kerr is unquestionably a threat to the life, safety or physical or mental well-being of other persons and must accordingly be designated as a dangerous offender pursuant to s. 753(1)(a)(i) of the Criminal Code.
(iii) Does Mr. Kerr constitute a threat to the life, safety or physical or mental well-being of other persons by reason of a pattern of persistent aggressive behaviour of which the serious personal injury offences before me form a part showing a substantial degree of indifference to the reasonably foreseeable consequences to others of his behaviour?
[149] The short additional question to be answered in this section is whether the repetitive pattern of behaviour I have found can also be described as a “pattern of persistent aggressive behaviour” showing a “substantial degree of indifference to the reasonably foreseeable consequences” to others of his behaviour and whether the index offences of counselling murder form a part of that pattern.
[150] In my view, the pattern that I have described above also fully satisfies the requirements of s. 753(1)(a)(ii) of the Criminal Code and the same threat to the life, safety or physical or mental well-being of other persons arises for the reasons described above.
[151] Dr. Iosif described Mr. Kerr as having “shown a striking indifference to foreseeable consequences of his behavior” noting that despite “numerous legal orders and even sentences against him” he has “gone on to replicate almost exactly the actions and circumstances that led to his criminal charges and convictions in the first place”. He has repeatedly found himself in situations where he has rapidly formed strong attachments to women whom he has also swiftly concluded betrayed him in some fashion – whether in reality or in his fantasy. His reaction to that perception has been violence perpetrated on the women who became his victims. That violence has been severe on occasion. I have noted earlier that Ellen’s nose was broken on two occasions. He hit another girlfriend while she was pregnant with his own son and actively and persistently sought to have Ms. T.M. killed after she went to police regarding him for fear that an application such as the present one might result. The conclusions of Dr. Iosif in this regard are entirely supported by the evidence before me and I fully adopt them.
(iv) Conclusion re: dangerous offender
[152] For the foregoing reasons, I have determined that Mr. Kerr satisfies the definition of dangerous offender prescribed by s. 753(1)(a)(i) and (ii) of the Criminal Code and I so find.
(c) If Mr. Kerr is found to be a dangerous offender, what sentence is appropriate?
[153] Having found Mr. Kerr to be a dangerous offender, it is now necessary for me to determine the appropriate sentence to apply. Subsections 753(4) and (4.1) both relate to the sentencing of an offender who has been designated as a dangerous offender. These two provisions provide as follows:
(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.
(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.
[154] The interplay between these two provisions was considered at length by the Supreme Court of Canada in Boutilier (at para. 70) and there is no need for me to re-invent the wheel. Boutilier makes clear that there is no reverse onus created by s. 753(4.1) of the Criminal Code. In mathematics as in sentencing, the order of operations is critical. I must first consider whether a conventional sentence as prescribed by s. 753(4)(c) will adequately protect the public against the commission by Mr. Kerr of another serious personal injury offence. If I am not so satisfied, I must then consider whether a conventional sentence coupled with a long term supervision order would provide adequate protection against the risk. It is only if I am not satisfied that either of the two options described in s. 753(4)(b) or (c) are adequate to the task of protecting the public against the risk of Mr. Kerr that I am directed by s. 753(4.1) to apply the indeterminate detention sentence prescribed by s. 753(4)(a).
[155] This logical and systematic consideration of sanctions from the least until the most severe is entirely consistent with the approach mandated by s. 718.2(d) and (e) of the Criminal Code as well. What is called for is a thoughtful balancing process whereby the offender is deprived of no more liberty than is necessary to accomplish the particular objectives of the criminal law as outlined by Parliament – in this case, protection of the community from the identified risk of violent recidivism.
[156] It is also to be noted that s. 753(4.1) of the Criminal Code directs the court to consider whether the lesser sanctions will “adequately” protect the public. There is no such thing as absolute security and there never will be. The criminal justice system is a blunt tool on a good day. While Parliament has directed the court in s. 753(4.1) to give primary weight to the consideration of adequate protection of the public, this direction does not operate to the exclusion of all other considerations.
[157] I shall accordingly examine each of these three potential types of sentence in turn.
(i) Is there a reasonable expectation that a conventional sentence will protect the public adequately against the risk of Mr. Kerr committing further serious personal injury offences?
[158] The two offences of counselling murder for which Mr. Kerr has been convicted carry with them a maximum sentence of life imprisonment. While a life sentence in this case would protect the public in substantially the same degree as would a sentence of indeterminate detention, this would only be available were such a sentence feasible in fashioning a conventional sentence.
[159] The Crown’s alternative sentencing submission proposed a sentence of 25 years less credit (at 1.5 x) for pre-sentence custody (from the time of his arrest on these charges in December 2014 until the present time) followed by a ten year long-term supervision order. Mr. Davoudi for the defence submitted that a ten year sentence followed by a ten year long-term supervision order would be more appropriate in all of the circumstances of this case. There is no suggestion that a sentence for the offences before me would be the maximum sentence of life imprisonment.
[160] There can be no doubt that a lengthy custodial term would definitely be called for in this case even outside the context of a dangerous offender application. No other conclusion is possible having regard to the number, type and frequency of offences found in his record, the absence of any significant mitigating factors such as remorse or insight into his offences, the gravity of these offences as demonstrated by the earnestness and persistence with which Mr. Kerr pursued the plan to have others murder Ms. T.M., the dim prospects of rehabilitation, Mr. Kerr’s poor efforts at pursuing effective treatment in the past and the obvious need to isolate him from the community in which he has so frequently been a source of violence.
[161] The case of R. v. Lalumiere, 2011 ONCA 826 offers a number of remarkable parallels to this case. The trial judge in that case had imposed a life sentence for two counts of counselling murder. On appeal, the life sentence was set aside and a sentence of 16 years less pre-sentence custody plus a ten year long-term supervision order was imposed instead. In that case, the primary at-risk victim was the ex-wife of the offender and the revised sentence contemplated an application to reduce the period of long-term supervision should it later appear that the offender was no longer a threat to her.
[162] By contrast, I have found little useful guidance to be found in the case of R. v. Tokhi, 2014 ONSC 3142 where a 3.5 year sentence (less credits) was applied in the case of a woman who had attempted to hire someone to kill her husband (once again, the proposed killer was an undercover police officer). The offender in Tokhi was an immigrant woman whose unique and very difficult family circumstances called for compassion while she herself posed little to no continuing risk to the community.
[163] While Mr. Kerr’s threat has never been restricted to a single person, it appears to me that Lalumiere and the cases cited therein are a better guide to the range of sentence that would reasonably be in view were sentence determined on a conventional basis alone.
[164] In my view, the appropriate custodial term in these circumstances would be 18 years in penitentiary subject to reduction for pre-sentence custody (approximately 7.5 years if credited at 1.5 x – I have not calculated the credit more precisely at this point). I repeat that the foregoing is what a conventional sentence would look like had I not made a dangerous offender determination (and I have). In my view it is this sentence or something similar to it, and not the maximum theoretical sentence, that I must consider when applying s. 753(4.1).
[165] Can it be said that the imposition of such a sentence upon this designated dangerous offender would enable me to be satisfied that there is a “reasonable expectation” that such a sentence “will adequately protect the public against the commission by the offender of murder or a serious personal injury offence”?
[166] In my view, the answer to this question must be no at this point.
[167] The conventional sentencing options have all been tried and have produced no discernible impact upon Mr. Kerr. There is no reason to expect a different result if the same sentencing tools were to be employed yet again. The risk to the community of leaving Mr. Kerr at large in it has grown and not diminished over time.
[168] I must also consider the nature of the risk that Mr. Kerr poses to the community. His history is one of swiftly forming deep and somewhat obsessive relationships, often with vulnerable women. Those relationships have descended into violent abuse with alarming frequency. His history of violence has not been restricted to punches to the head or broken noses – and I do not wish in any way to minimize the brutality of such attacks. He stabbed a man in a brutal and essentially unprovoked attack on one occasion and formulated and persisted in advancing a plan to obtain the murder of a girlfriend whose complaints to police he feared might result in just the sort of hearing he is now in. There is a very high risk that the next woman he forms a relationship with – a relationship that no combination of parole conditions will be capable of detecting or preventing – will be subjected to an unpredictable degree of violence up to and including life-threatening violence or murder.
[169] I do not and cannot preclude the possibility of Mr. Kerr making sufficient progress in gaining insight into the personality and relationship issues identified by Dr. Iosif to alter this alarming picture. The issue I must grapple with, however, is not what might be possible tomorrow but what outcomes can reasonably be expected based on all of the evidence available today.
[170] The simple fact of the matter is that Mr. Kerr has been under conditions of near continuous incarceration for approximately ten years. During that time, there have been virtually no tangible gains made by him in the direction of his gaining insight into his own psychological issues still less in pursuing aggressive treatment of them. There is simply no present basis to conclude that Mr. Kerr will pose a lesser threat ten or more years from now than he does today.
[171] Dr. Iosif’s report offers no more than the possibility that Mr. Kerr may respond to a program of intensive treatment over a long term. It may well be that such treatment would have to be indefinite to be effective. Past treatment efforts have been swiftly abandoned if pursued at all. Mr. Kerr has often denied that he has any psychological issues needing treatment. A speculative prospect of effective treatment alone cannot ground a reasonable expectation that the threat posed by Mr. Kerr can adequately be addressed by means of a conventional sentence.
[172] In this respect at least, Mr. Kerr’s situation has much in common with that faced by J.C. Murray J. in R. v. H.B., 2011 ONSC 1413; aff’d 2011 ONCA 471. In H.B. the offender had committed a number of violent home invasions. There as here, the trial judge concluded that there was little evidence that H.B. had taken responsibility for his behaviour. There was however some evidence that H.B.’s condition might be amenable to treatment and that there was the “potential” for some benefit to be derived from such a treatment program. J.C. Murray J. found “there is no doubt that intense treatment and interventions are required for this offender …. [h]owever, at this point, no one can predict whether such responses will be successful in helping this offender to manage his behaviour in the community”. Those words could have been written about Mr. Kerr and are entirely applicable here. The learned judge went on to conclude (in a decision upheld by the Court of Appeal) that one cannot “equate the potential to benefit from treatment programs with a reasonable possibility of managing risk in the community. Questionable potential is no more than an unevaluated likelihood” (at para. 123).
[173] Reasonable expectations require tangible evidence of effective remedies to a problem that has grown to the severity of warranting a dangerous offender designation. I cannot find that there exists today a reasonable expectation that a conventional sentence imposed for the offences committed will adequately protect the public – and in particular women with whom Mr. Kerr may in future become involved with – against the commission by Mr. Kerr of murder or another serious personal injury offence.
(ii) Is there a reasonable expectation that a conventional sentence coupled with a long-term supervision order will protect the public adequately against the risk of Mr. Kerr committing further serious personal injury offences?
[174] Moving up the ladder of potential sentences for a dangerous offender, I turn now to consider whether a conventional sentence coupled with a long-term supervision order offers a reasonable expectation of providing the requisite degree of protection to the community.
[175] In my view, it does not and for substantially the same reasons expressed in the preceding section.
[176] Mr. Kerr has already been the object of a long-term supervision order. While he was acquitted of the charges that terminated his period of liberty in 2013, he nevertheless failed to comply with release conditions that required him to report relationships with women to his probation officer. Such a condition would be a sine qua non of any sentencing arrangement that might be contemplated here.
[177] I shall not repeat what I have said earlier regarding the speculative nature of any treatment program that might be undertaken to address the serious threat posed by Mr. Kerr were he at liberty.
[178] I cannot find that there exists today a reasonable expectation that a conventional sentence coupled with a long-term supervision order will adequately protect the public against the commission by Mr. Kerr of murder or another serious personal injury offence.
(iii) Conclusion regarding sentence
[179] Having concluded that neither a conventional sentence nor a conventional sentence coupled with a long-term supervision order offer a reasonable expectation that the public will be adequately protected against the threat posed by Mr. Kerr, s.753(4.1) of the Criminal Code directs me to impose a sentence of detention in a penitentiary for an indeterminate period. I so order.
[180] There can be no doubt that such a sentence is a drastic one. I derive no satisfaction from it and have carefully examined every option that might enable me to avoid it.
[181] Sentencing always involves a balancing of a number of policy considerations that often pull in different directions. In this case, the Crown has met the high burden of justifying the designation of this offender as a dangerous offender, Parliament has directed me to apply paramount weight to the consideration of protection of the community in a case such as this and the sentence I am imposing does so.
[182] Mr. Kerr’s history can lead to no other conclusion but that his propensity to resort to violence in domestic relationships is a deeply-entrenched one. It is clear to me that Mr. Kerr has an operative but almost entirely untreated personality disorder. Conventional tools of control have been manifestly inadequate until now. He has shown little insight into his problems. He has deflected responsibility even for incidents where he pleaded guilty. At liberty, he would pose a clear and present danger to the community. The prospects of successful treatment of Mr. Kerr’s deep-rooted personality and relationship issues are by no means nil. They are, however, speculative at this point and manifestly insufficient to warrant applying a different sentence. Having reached all of these conclusions after a careful consideration of the evidence, my duty is clear.
[183] There is, however, light at the end of the tunnel and I do not wish to conclude my reasons without highlighting it. An indeterminate sentence is subject to periodic review and there will be time and an opportunity for Mr. Kerr to demonstrate progress in treatment should progress be made.
[184] Mr. Kerr has shown some grit in the past in pursuing self-improvement. He persevered and ultimately completed the requirements for a high school diploma in 2010. He has made a serious commitment to his religious faith and pursued a number of courses in that area offered during his periods of incarceration. I do not wish him to assume that I have not carefully reviewed the materials he assembled for my review in this regard: I have. He has become aware of the possibility of aboriginal heritage on his mother’s side and wishes to pursue more programs aimed at exploring that side of his heritage and spirituality. All of these efforts are to be applauded and encouraged.
[185] It is possible that the future may well produce a Mr. Kerr with greater insight into what has gone wrong in his past and a frank willingness to confront and deal with those difficult issues whatever their origin. Mr. Kerr has demonstrated to me that he has not given up on himself and that is a very good place to start. The system need not give up on Mr. Kerr. I have not.
[186] The path to a favourable Parole Board review in future is not closed but will require the active co-operation, hard work and persistence of Mr. Kerr. I urge him to give the most careful possible thought to what I have written but more importantly to what each of the mental health professionals who have dealt with him have written. There is a path forward if he chooses to take it. There is yet time to roll up his sleeves and make progress by the time of his Parole Board review. As hard as this sentence may be for him to accept, I urge him to dig deep and find the way to true and lasting change.
Disposition
[187] For the foregoing reasons, the Crown’s application to designate Mr. Kerr a dangerous offender pursuant to s. 753(1) of the Criminal Code is granted and I sentence him to detention in a penitentiary for an indeterminate period in accordance with s. 753(4)(a) of the Criminal Code.
[188] I may be spoken to with regard to any ancillary orders required.
S.F. Dunphy J.
Date: December 16, 2019
[^1]: Mr. Davoudi was counsel on the hearing of the application and the sentencing. He was removed as counsel at the request of Mr. Kerr following the completion of the hearing in circumstances described herein..
[^2]: Mr. Kerr was in fact acquitted of those charges in a later trial.
[^3]: Mr. Kerr has been incarcerated or prevented from visiting Ottawa while at liberty by release conditions since then.