COURT FILE: CR/17/50000175/0000
DATE: 20191219
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and -
RICHARD JACKMAN
Respondent
Paul Zambonini, for the Crown/Applicant
Daniel Brodsky, for the Respondent, Mr. Richard Jackman
HEARD: December 2, 3, 4 and 11, 2019
Kelly J.
RULING RE:
Dangerous Offender Designation and Sentencing
[1] Mr. Richard Jackman has been convicted of several offences against members of the Jemetz family. Mr. Jackman is related to the Jemetz family through his former common-law relationship with Ms. Olena Jemetz (“Olena”).[^1]
[2] Olena and Mr. Jackman have five children together. Some time ago, they separated. Olena moved from Alberta, where Mr. Jackman remained. Issues regarding custody of the children appear to have been lengthy and protracted. The Children’s Aid Society became involved.
[3] Commencing in 2014, Mr. Jackman began a campaign of harassment against the Jemetz family. He believed that members of the Jemetz family were raping his children. He says that he threatened the Jemetz family to get the police to investigate such crimes. He believed that when the police talked to the Jemetz family, they would disclose the abuse of Fyona and Vincent, two of Mr. Jackman’s children.
[4] Some communications from Mr. Jackman were left on the answering machine of Mr. Alexander (“Alexander”) and Ms. Alexandra Jemetz (“Alexandra”). Other communications were delivered via Facebook. The messages sometimes refer to the fact that the Jemetz family are raping Mr. Jackman’s children. Some of the messages threaten death. Others demand money and are sexually explicit. I have attached, at Appendix “B”, details of a number of the communications from Mr. Jackman to members of the Jemetz family.
[5] Mr. Jackman was arrested on May 30, 2015. At the time, he had travelled from Alberta to Toronto. He was arrested within blocks of two homes occupied by members of the Jemetz family. He was charged with several offences arising from his conduct referred to in para. 4 above.
Overview of the Proceedings
[6] On September 20, 2017, following a judge alone trial, I found Mr. Jackman guilty of 17 offences as follows: 5 counts of criminal harassment (Alexandra, Alexander, Hania Wenger, Sarah Fitting and Mykola); 10 counts of threatening death (Alexandra, Alexander, Hania Wenger, Sarah Fitting, Mykola, Sophia, Natalia, Iwan, Peter Wenger and Kalynna); and two counts of extortion (Alexander and Sarah Fitting). The victims are all members of the Jemetz family either through birth or marriage.[^2]
[7] Following Mr. Jackman’s convictions, Crown Counsel brought a Dangerous Offender application.
[8] In support of the Dangerous Offender application, a s. 752.1 assessment was ordered. On August 2, 2018 the assessment report of Dr. Jonathan Gray[^3] was produced. His conclusion supported that Mr. Jackman be designated a Dangerous Offender. An indeterminate sentence was recommended.
[9] Following production of Dr. Gray’s report, Counsel for Mr. Jackman submitted that the defence of not criminally responsible by reason of a mental disorder (“NCR-MD”) might be available to Mr. Jackman. Such a defence was not raised at trial.[^4]
[10] In support of the NCR-MD application, Counsel for Mr. Jackman provided a summary report written by Dr. Julian Gojer[^5] that was authored before trial, but not relied upon during it. Dr. Gray provided an addendum to his report (on September 12, 2018) suggesting that the defence of NCR-MD was not applicable. A more fulsome report was provided by Dr. Gojer, dated February 22, 2019. Amongst other things, it suggested that Mr. Jackman may have a defence of NCR-MD.
[11] Drs. Gray and Gojer testified before me regarding the issue of NCR-MD. Both agreed that Mr. Jackman suffered from a mental disorder that rendered him incapable of appreciating the nature and quality of his acts. They also agreed that Mr. Jackman was aware that his acts were legally wrong. Where they differed was on the issue of whether Mr. Jackman knew that his conduct was morally wrong.
[12] I found that Mr. Jackman was capable of knowing that his conduct, in harassing, threatening and extorting members of the Jemetz family, would have been morally condemned by reasonable members of society. I concluded that the defence of NCR-MD was not available to Mr. Jackman.
[13] On May 10, 2019, the Attorney General consented to proceedings being instituted to declare Mr. Jackman a Dangerous Offender. Crown Counsel continues to rely on the opinion of Dr. Gray, that Mr. Jackman should be designated a Dangerous Offender and that an indeterminate sentence is appropriate.
[14] Counsel for Mr. Jackman has filed a report from Dr. Giovana de Amorim Levin[^6] who was asked to address the treatability of Mr. Jackman but not assess risk. Counsel submits that Mr. Jackman should not be designated a Dangerous Offender, but that he should be designated a Long-term Offender. In addition to time served (almost 4.5 years of real time), Mr. Jackman should receive an additional sentence of 4 months (for processing) and then be subject to a Long-Term Supervision Order (“LTSO”) for 10 years.
[15] I find that Mr. Jackman is properly designated a Dangerous Offender and that the appropriate sentence is an indeterminate one on the five counts of criminal harassment. He will be given determinate sentences of time served for the other offences. What follows are my reasons.
An Overview of the Legislative Scheme
[16] Part XXIV of the Criminal Code[^7] provides the legal framework for designating and sentencing a Dangerous and Long-term Offender. The purpose of the provisions is to protect society from a “particularly dangerous subset of dangerous offenders who meet the statutory test for risk of violent re-offence”.[^8]
[17] Section 753(1) of the Criminal Code defines the circumstances in which a person may be designated a Dangerous Offender. Crown Counsel seeks to have Mr. Jackman declared a Dangerous Offender pursuant to ss. 753(1)(a)(i) and (ii). Those sections provide as follows:
753 (1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied
(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing
(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, [or]
(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour[.] [Emphasis added]
[18] Should Mr. Jackman meet the definition of a Dangerous Offender, the court “shall” designate him as such. There is no discretion. The court’s discretion is found in the application of the appropriate sentence in s. 753(4) of the Criminal Code.
[19] Sections 753(4) and (4.1) deal with sentencing a Dangerous Offender once designated. Those sections 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.
[20] If Mr. Jackman is not found to be a Dangerous Offender, s. 753(5) provides as follows:
(5) If the court does not find an offender to be a dangerous offender,
(a) the court may treat the application as an application to find the offender to be a long-term offender, section 753.1 applies to the application and the court may either find that the offender is a long-term offender or hold another hearing for that purpose; or
(b) the court may impose sentence for the offence for which the offender has been convicted.
[21] In light of this legislative scheme, I will now consider on what basis Mr. Jackman is designated a Dangerous Offender. I will then address the appropriate sentence.
Is Mr. Jackman a Dangerous Offender?
[22] To determine whether Mr. Jackman is a Dangerous Offender, the court is required to first consider ss. 753(1)(a)(i) or (ii) of the Criminal Code as submitted by Crown Counsel. Pursuant to these sections, it must be established that:
a. Mr. Jackman committed a “serious personal injury offence” as defined; and
b. Mr. Jackman represents a “threat to the life, safety or physical or mental well-being of other persons”.
[23] I will now explain why Crown Counsel has proven that Mr. Jackman is a Dangerous Offender pursuant to both sections.
a. Are the predicate offences “serious personal injury offences”?
[24] The relevant portion of s. 752 of the Criminal Code defines “a serious personal injury offence” as follows:
(a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving
(i) the use or attempted use of violence against another person, or
(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person,
and for which the offender may be sentenced to imprisonment for 10 years or more.
[25] I will consider these criteria to explain why I am satisfied that the predicate offences are serious personal injury offences as defined by s. 752 of the Criminal Code.
i. Do the offences involve the use or attempted use of violence against another person?
[26] The conduct of Mr. Jackman towards the Jemetz family involves the use or attempted use of violence against another. His communications were of a harassing nature and he was convicted of 5 counts of criminal harassment (as well as threatening offences and extortion).
[27] A similar issue was addressed in R. v. Cook,[^9] a decision of our Court of Appeal. The Court of Appeal held that Mr. Cook’s repeated communications of a harassing nature against his sister was a serious personal injury offence:
We have no hesitation in concluding that the appellant's harassing conduct involved conduct likely to inflict severe psychological damage on Laura. Indeed, it would be astounding if it did not. There is ample evidence on this record to support the conclusion that the criminal harassment of which the appellant was convicted in respect of Laura constituted a ‘serious personal injury offence’. The appellant's persistent and threatening conduct was neither trivial nor de minimis. To the contrary, it demonstrated a likelihood of the appellant inflicting severe psychological harm, if not physical violence, on Laura. This meets the statutory definition of ‘serious personal injury offence’.
[28] Mr. Jackman has been convicted of criminal harassment and of threatening death. In Appendix “B”, I have outlined the messages that were sent to members of the Jemetz family via voicemail and on Facebook. I have included some of them here to give context to my reasons.
[29] Initially, Mr. Jackman started sending messages to his niece, Sophia Jemetz, on the Google Plus platform. He left several messages. The following is an example of one that was sent in November 2014 (all messages are transcribed verbatim):
“… Relax you’re safe with me. Enjoy a crazy Motherfucker who intends to mess with you family but will support you and be an obsessed retard yet takes care to give you a way to get help. Its why I got on touch with you. For a guy who likes porche it was weird when he married a woman who has talent rather than well bimboness. I would gladly marry your mother proudly, but she is a loud mouth yapper I know she would not phone the police when I tried to poison her. …”
[30] In November 2014 posts were made on the Facebook page of Alexander and Alexandra Jemetz, the parents of Sophia. Some of them are as follows:
| Date/Time | Content |
|---|---|
| November 29, 2014 at 4:59 a.m. | “… I wonder if you could encourage your wife to hire me, and recommend a guy I can talk to about his much of a fuckheaf you ard why. Let him enjoy the fact I’m blackmailing you. I could walk right in during their meeting make her He can come out at your expense, come with us to the dirt road slsp your wife around get your lovely daughter on her knees, get a load in her mouth, everything cool, until he is sitting around bragging, raping your wife, I was hired couldn’t get it up, him him him, I sucked them all off”. |
| November 29, 2014 at 5:06 a.m. | “Take some naked pictures of your daughters tits and ass, come fast, I’m heavenly perverse and willing to send you pictures of Fyona, she is a slut trying to get a huge pussy. So she can be the sleazy one, like a poor idiot father, watching his daughter while your daughter is not, big surprise”. |
| November 30, 2014 at 8:17 p.m. | “… Would you consider, lending your daughter a credit card, drive her to airport, have her rent a room for a month, buy me some clothes, talk to a couple of people with me, give me some orders but not money, I would better to send your wife out to make sure I don’t sell your daughters ass. Instead of giving it away like you would. It would be much easier to train your daughter, much like you trained olena. Only more sexier and less olena. … The kind of guy who loves To do illegal shit Its the try to get help from you fucking retards When $10,000 is easy enough to put on your credit card I’m not blackmailing you moron, your paying me to fuck off And not make fun of you in court So you see That’s why I need to borrow your daughter To keep me from spending the money, before I finished teacher her to give good head, and enjoy getting fucked Understand, if your into fucking your daughter not a problem Just send her out here, with a credit card To let me know that my big titted teenage daughter would gladly thank you but sucking you off She’s been practicing So if your past the offended stage and into ahh good Send her out here, if there older than 14 I’m good Send your oldest daughter out here to learn how to be sexy slut … I need a young lady needing some blow job lessons, while getting fuck by a few guys I need to show in good So Alex old buddy Help a guy out And give your daughter the adventure of learning to be a more discreet slut While fucking And sucking …” |
| December 1, 2014 at 2:08 p.m. | “… But do you really want me to kidnap and rape your daughter? … If I said you must dress like a faggot, get on your knees suck all the cocks, the watch as they fucked your wife. Then give them head again, then watch as they gang fucked your daughter, if you agreed to that is it legally binding?” |
| May 2, 2014 at 3:41 a.m. | “I will be there for them, help guide them, hire to suck off a couple of nephews, a son, watch daughter take cock, my daughters take cock, Sarah’s kids taking cock sucking cock and making money, Alex the male can fuck or suck I don’t care, but let’s face it, it is your families way of making love. So what I’m more of a old loose pussy guy who thinks incest is stupid … + Sophia Jemetz better not be making fun of my missing daughter …” |
| May 2, 2015 at 12:08 p.m. | “How bout this, I’ll see you next week hit someone in the knee cap with hammer get truth, call the coops and they can ‘arrest’ me for hitting a child molester/pornographer on kneecap. Think that evidence is admissible? Idiots. I can’t wait to fuck you cocksuckers up. I’m sending four out there to watch bringing two with me. good luck cocksucking faggot pieces of shits.” |
[31] The next contact discovered by the Jemetz family came in the form of voicemails left on the telephone of Alexander and Alexandra Jemetz. Some of the messages are as follows:
| Date | Time | Duration | Content |
|---|---|---|---|
| May 2, 2015 | 8:33 a.m. | 52 secs | “So, I’m going to kill Sarah Fitting, I’m going to kill Sophia, I’m going to kill Natalia Jemetz, Hania Wagner [sic], and even Josephine Jackman. That’s what I will be doing. You have been taking the kids and raping them in all four houses. I know what you’re doing. You’re pieces of shit. If you don’t get the cops to find me right now because I’ve threatened death to those kids, I will be in Toronto in three days and I will fucking kill you. Is that fucking clear? Stop raping my daughter right fucking now. Is that clear?” |
| May 3, 2015 | 10:19 p.m. | 2 mins, 59 secs | “…and if that Sophia’s making fun of me. She’s fucked. And if she’s trying to help with that picture (indiscernible) tell me who is spying … I don’t know what my phone number is (indiscernible) fucking try looking on Google hangouts and if you have any fucking problems (indiscernible) and tell that Sarah to get off her fucking cunt ass and see the writing on the wall, all right. The Catholic Church is going to bring something. I gave you her name 18, 19 months ago”. |
| May 4, 2015 | 11:11 a.m. | 2 mins, 59 secs | “…I’ll fucking rip your spine out and I’ll rip the spine out and the cock. I never left because you’re fucking chicken shit. Have your fun and make the fucking phone call. All right? Give the phone to Sophia okay …” |
[32] Ms. Hania Wenger received messages commencing in 2012. They continued in 2015 and referenced the fact that Mr. Jackman was coming to Toronto. Some of those communications are as follows:
| Date/Time | Content |
|---|---|
| February 29, 2015 at 5:00 a.m. | “… why you don’t tell me where you live but I found out through my secret cop source that you in fact live in either live at 293 or 294 beresford ave. He couldn’t remember the one that was prababa and what one was parents. … And just so you know this level of harassment, is acceptable, in this amount. ….” |
| May 2015 | “And think if I might enjoy you sucking my cock, pushing it in your delicate moist sensitive tunnel. Plus I don’t like anal. At all.” |
| November 29, 2015 | “Send me a picture of hanias ass, Peter s cock…. Pictures or Peter dies.” |
| March or April 2015 at 2:54 p.m. and 3:00 p.m. | “I’ll be in toronto by friday, I won’t Be Playing Well With Others. A jemetz is an others…I KNOW WHAT HAPPENS AFTER DEATH. Fear it all of you fear death, you will never see light again.” |
[33] Messages were left for Ms. Sarah Fitting which included the following:
| Date/Time | Content |
|---|---|
| May 3, 2015 at 10:32 a.m. | “… if I have total control of you sooner or later it becomes my penis in your privates. It makes no sense, why not make you do my laundry, you know, fold it and shit. What does is tell you to seduce my like this, the she would tell another to …” |
| May 4, 2015 at 5:22 p.m. | “And you call yourself a slut? Must be nice to say no. By the can I have your house? And can I mean what is your address and address I mean you. Are. Fucked Sophia Jemetz get on it.” |
| May 5, 2015 at 9:17 a.m. | “Sorry for being right. Please tell Myk I will kill you and his kids should he touch one of my children again. This is not a threat this is clairvoyant.” |
| May 30, 2015 at 5:37 a.m. | “… Give me the money. It saves me mooching it and this retard time. … Fuck heads I didn’t come all this way for the ride Pay me.” |
| May 30, 2015 at 7:28 a.m. | “Hiya Stupid. I’m waiting outside Canadian Tire. Now I’m waiting to purchase a hammer/hatchet, it begs the question, should I?” |
| May 30, 2015 at 7:37 a.m. | “Good lord do you see the bullshit traveling I got to do. ASShole …Quit fucking about I know 3 houses yours I find bashing someone’s knee cap … I’m mean you soon to be hospitalized idiot where is my daughter? … Make it happen or the cunts come calling. They won’t wait to be asked in and no adults will live none Now stop that shit Make it happen Happen Please Pretty please …” |
| May 30, 2015 at 8:21 a.m. | “Fucking moron how the Fuck I’m going walk around with a hatchet. Fuck you. Where do I gotta go furst First If you please”. |
[34] I have listened to the voicemails and I have read the content of the Facebook messages. The tone of Mr. Jackman’s voice is chilling. The content of the messages is sexually aggressive, threatens death and is frightening. When considering the content of these messages, it must be remembered that on May 30, 2015, the very day that some of the threats were made, Mr. Jackman was found within blocks of two Jemetz homes after a bus trip from Alberta. The police intervened and arrested Mr. Jackman. As such, he was prevented from following through on his threats, if that was his intention.
[35] Mr. Jackman’s conduct demonstrates a likelihood of inflicting severe psychological harm if not physical violence on the Jemetz family. I am satisfied that Crown Counsel has proven beyond a reasonable doubt that the predicate offences involve the use or attempted use of violence against another person as required by s. 752(a)(i) of the Criminal Code.
ii. Do the offences involve conduct endangering or likely to endanger the life or safety of another person or likely to inflict severe psychological damage on another person?
[36] I am satisfied that the offences committed by Mr. Jackman are offences involving conduct endangering or likely to endanger the life or safety of the members of the Jemetz family or are likely to inflict severe psychological damage on them pursuant to s. 752(a)(ii) of the Criminal Code. Seven of the complainants provided Victim Impact Statements.[^10] Those statements demonstrate that the offences, at the very least, inflicted psychological damage on them.
[37] The Victim Impact Statements may be summarized as follows:
| Name | Summary |
|---|---|
| Ms. Alexandra Jemetz | Alexandra has watched the damage and loss of innocence in her children as she has had to educate and provide lessons “that no young child should need to learn”. The actions of Mr. Jackman continue to invade her life and overtake a regular day. She stated, “The timing of the phone messages and posts doesn’t matter – the visions they created and the fear they instilled in me will haunt me for a lifetime. Every day I fear … is he going to be on that next bus? Will he be around the corner? Is this the time he succeeds in what he has wanted so badly?” The stress has “wreaked havoc” on Alexandra and her health has suffered. |
| Mr. Alexander Jemetz | Alexander states that the actions of Mr. Jackman have caused “severe stress, anxiety and fear” for his children’s safety as well as his family. He says, “We’ve never had any contact with him and have done him no wrong – why is he coming after our family and terrorizing us? Our minds are constantly wondering what we can do to protect our children, parents and ourselves from Richard Jackman when he is released. How can I reassure my wife that our children are safe when they go to school or that Richard Jackman won’t show up at our place of work, or worse, our home?” |
| Ms. Sarah Fitting | Ms. Fitting states that “there are no words to describe the pain and fear his often frighteningly detailed messages have caused me to feel”. Her life has changed forever, and she has been diagnosed as suffering from Post-Traumatic Stress Disorder. She lives in a constant state of fear. She described that there has been a “severe and marked deterioration in both my physical and mental health since the night I became aware of his email to my young niece.” She suffers from “chronic depression, anxiety, a complete change” to her daily life and activities. Mr. Jackman’s actions have been life altering for her, significantly impacting her ability to earn an income as a realtor due to her fears about her safety. She has separated from her husband, partly due to this proceeding. |
| Mr. Mykola Jemetz | Mykola wrote, “I have mixed feelings about writing this. On the one hand, I feel that my communicating what’s changed may be instrumental to the court proceedings, and on the other hand I feel like I’m trying to douse a fire with gasoline”. Security is a significant concern. He describes that when he walks down a street, he scans around to ensure that he is safe. He looks over his shoulder more often than ever and is unsure of his surroundings. |
| Ms. Hania Wenger | Ms. Wenger (formerly Jemetz) describes that the harassment in the messages sent is loud and clear: “Their violent imagery and language is disgusting. The messages are worse than nightmares, beyond any horror movie I have seen, however, this is real: I am not asleep and these are not just fleeting thoughts, but something that has been written and very deliberately sent to me, over a period of years. Because of these threats, I have had to develop safety plans for myself and my family, upgrade security features in my home, and prepare for the possibility that Richard will try to harm us”. |
| Mr. Peter Wenger | Mr. Wenger states, “The day that RJ [Richard Jackman] got on a bus to Toronto everything changed for me. I had always thought that as long as he stayed in Alberta, we’d be okay. But the moment I learned that my sister-in-law’s violent ex-husband was on his way to Toronto, I had no doubt that his intentions were to cause our family harm.” He also states, “It’s been so bizarre to have been targeted by an individual whom I have never met or communicated with. … I don’t believe his hate will diminish, and I don’t think that his motivation to hurt us will lessen”. To deal with this, he has installed a home security system and completed upgrades to his windows and doors to make them more secure. |
| Ms. Natalia Jemetz | Ms. Natalia Jemetz is the mother of the Jemetz children. She describes Mr. Jackman as a “nuisance and a threat”. She states, “We are especially concerned about our children and grandchildren as he threatened to kill them. He has a pathological need to talk to somebody, to control them, to convince them that everybody is wrong and that only he is a righteous and kind person. He is unpredictable and as such is dangerous”. She experiences a lot of anger and sorrow. They feel the pain of their daughter, Olena, whose life has affected them all. “To the grief and sorrow was added the fear for our life when Richard threatened to come across the country to kill us all”. |
| Ms. Olena Jemetz | Olena describes that her parents are “people that survived famine, war and ethnic cleansing [and who] came to this country to create a family and take advantage of freedom and opportunity”. They have been “savagely victimized” and “cleansed of joy”. She describes that she has lost a relationship with her family. After all, it was Olena that brought Mr. Jackman into the family. She feels that everything “bad” in her family’s life is because of her. She states that she cannot live with herself knowing that the “worst can get even worse” so long as Mr. Jackman has contact with her family. Olena feels abused and raped of her dignity. Mr. Jackman’s offences have deprived her of her family and her ability to feel like a “fit mother, complete person, and someone deserving of a family’s unconditional love”. She writes that she understands that Mr. Jackman would “wish to destroy my siblings and parents – you told me what you would do if I ever defied your absolute authority”. She describes that after having run away from Mr. Jackman, he deprived her of a second chance and diminished her capacities. She states, “Having already created a mudslide that destroyed the homes of my parents, my siblings and their children … who is left at the bottom but the youngest … my daughter Kalynna”. She says that even in Mr. Jackman’s absence, he has ruined Kalynna’s life. |
[38] I recognize that not every threat will cause a person to suffer psychological damage. As the British Columbia Court of Appeal held in R. v. Armstrong,[^11] trivial or de minimus concerns are not enough to conclude that a person has suffered or is likely to suffer psychological damage. As the Court said:
Threats are uttered too often during day-to-day activities, in response to bad driving, a snide comment, or an incident at a sporting event. Seldom do such threats cause people severe psychological damage, but where the context of the threat causes ‘serious and prolonged’ fear, and significantly affects the victim’s day-to-day activities, then a judge may infer, without necessarily hearing expert evidence, that a person has suffered or is likely to suffer severe psychological damage.
[39] I am able to conclude that the offences involve conduct endangering or likely to endanger the safety of the Jemetz family or likely to inflict severe psychological damage to them as required by s. 752(a)(ii) of the Criminal Code.[^12] The threats were “serious and prolonged” and caused the Jemetz family to fear Mr. Jackman, as they have so eloquently put in their Victim Impact Statements.
Sentence
[40] The last criteria for determining whether the predicate offences are serious personal injury offences is that the offender may be sentenced to imprisonment for 10 years or more. Criminal harassment, on its own, may attract a sentence not exceeding 10 years. As such, Mr. Jackman may be sentenced to imprisonment for 10 years as set out in the definition of a serious personal injury in s. 752 of the Criminal Code.
[41] For the abovementioned reasons, I find that the offences committed by Mr. Jackman are serious personal injury offences.
b. Does Mr. Jackman constitute a threat to life, safety, or physical or mental wellbeing of others per ss. 753(1)(a)(i) and/or (ii)?
[42] The next consideration is to determine on what basis Mr. Jackman is properly designated a Dangerous Offender. If Crown Counsel proves any one of the criteria listed in s. 753(1) of the Criminal Code beyond a reasonable doubt, the court shall find the offender to be a Dangerous Offender. Crown Counsel is seeking the designation pursuant to s. 753.1(a)(i) and (ii) referred to earlier in my reasons. I find that Crown Counsel has met the onus pursuant to both sections.
i. Is the predicate offence part of a pattern of repetitive behavior showing a failure to restrain and/or inflicting severe psychological damage through a failure in the future to restrain pursuant to s. 753(1)(a)(i) of the Criminal Code?
[43] Section 753(1)(a)(i) of the Criminal Code and the supporting case law states that it must be established to the satisfaction of the court that the predicate offence is not an isolated occurrence, but part of a pattern of repetitive behaviour by the offender which he failed to control.[^13] Guidance for the definition of the phrase “a pattern of repetitive behaviour” may be found in R. v. Hogg.[^14] The Court of Appeal for Ontario found, at paras. 40 and 43, as follows:
To summarize, the pattern of repetitive behaviour that includes the predicate offence has to contain enough of the same elements of unrestrained dangerous conduct to be able to predict that the offender will likely offend in the same way in the future. This will ensure that the level of gravity of the behaviour is the same, so that the concern raised by Marshall J.A. [in R. v. Newman[^15]] – that the last straw could be a much more minor infraction – could not result in a dangerous offender designation. However, the offences need not be the same in every detail; that would unduly restrict the application of the section.
Although the pattern differed in the detail of how the offences were carried out, the predicate and past offences still represented a pattern of repetitive violent behaviour that made it likely that the appellant would continue to commit similar acts of violence in order to have sexual gratification in the future.
[Footnote added]
[44] Mr. Jackman’s conduct is accurately characterized as a “pattern of repetitive behaviour that has demonstrated a failure on his part to restrain his behavior”. Mr. Jackman has “relentlessly harassed” multiple members of the Jemetz family over a period of months if not years. He is unable to control himself and is indifferent to the consequences of his communications. Not only do the offences for which I have found Mr. Jackman guilty demonstrate, when considered separately, a pattern of repetitive behaviour, but Mr. Jackman’s criminal record reflects a history of such behaviour, abuse of domestic partners in particular.
[45] Some of the entries in Mr. Jackman’s criminal record are more relevant than others to demonstrate a pattern of violent behaviour that Mr. Jackman has failed to restrain:
October 9, 1992: Mr. Jackman was convicted of assault causing bodily harm. The victim was a two-year-old girl whom he abused in the context of a domestic relationship. In an assessment conducted by prison authorities, it was observed that Mr. Jackman neither expressed remorse for his conduct nor showed any empathy towards his victim. Mr. Jackman apparently admitted to assaulting the girl on a half-dozen occasions “to bring out as much pain as possible”. Mr. Jackman has also admitted to hitting Ms. Spooner and told Dr. Gray that “that relationship was abusive for sure”.
January 8, 2008: Mr. Jackman was charged with assault and the matter proceeded to trial. Ms. Charlotte Lenzen, the complainant, testified about the assault itself and the fact that Mr. Jackman forced her to swear a false affidavit. She said that she signed the untrue document because “I was threatened. He had threatened to kill my mother, and when I showed up for the funeral, then he would shoot me”.
In his reasons for judgment, the trial judge stated that he accepted the evidence of Ms. Lenzen: “And I find that your evidence regarding that incident, the incident of the hair pulling, the throwing to the ground, the pinning to the ground, straddling while you’re on the floor, angry and then laughing and so forth, the fear that it caused you, I believe that that occurred and I believe that that’s an assault at law.” As such, Mr. Jackman was found guilty of assault.
Thereafter, Mr. Jackman pleaded guilty to two counts of breaching his recognizance. He admitted to communicating with Ms. Lenzen in breach of his court orders.
February 7, 2008: Mr. Jackman had been convicted of breach of a peace bond imposed in January 2008. He was acquitted of criminal harassment. The complainant, Olena, had received a number of emails on her computer between November 2005 and July 2006. At the time the emails were sent, she was living in Toronto, Ontario and Mr. Jackman in Strathmore, Alberta. The issue, which was similar to the one before me at trial, was the identity of the sender. The complainant testified that she knew that Mr. Jackman was the author and sender of the emails because of the content. The emails contained information “from their prior intimate relationship, during their marriage, and subsequent custody disputes over their children”.
The trial judge referred to other evidence, including Olena’s fear that Mr. Jackman was going to kill her. Olena described his communications with her as, “fairly disturbing”, “devastating”, “horrifying” and “extremely painful”. The fact that Mr. Jackman referred to Camillus, New York worried Olena because she believed he might try to contact her extended family there. Although the trial judge did not find Mr. Jackman guilty of criminal harassment, he found him guilty of breaching his peace bond.
The trial judge, in sentencing Mr. Jackman, referred to the fact that Mr. Jackman ignored his court order on numerous occasions and that the contact was egregious.
July 8, 2008: Mr. Jackman pleaded guilty to failing to comply with his recognizance. Mr. Jackman had been released on a charge of assaulting Ms. Lenzen. On February 6, 2007, Mr. Jackman phoned Ms. Lenzen and had a conversation with her regarding the court process, amongst other things.
June 8, 2010: Mr. Jackman pleaded guilty to failing to comply with his recognizance. On June 12, 2008, Mr. Jackman was subject to a release (again) not to contact Ms. Lenzen. The recognizance arose out of an assault allegation from 2007. On June 12, 2008, Mr. Jackman made several calls to Ms. Lenzen from a local bar. Despite being advised by Ms. Lenzen that he should not be calling her, Mr. Jackman persisted.[^16]
[46] In addition to the predicate offences, which in and of themselves show a pattern of repetitive and persistent aggressive behaviour involving a domestic partner, there are others. The pattern is obvious – unwanted and threatening contact towards past domestic partners and currently towards the family of his last known domestic partner, Olena. The conduct is frightening to the recipients and likely to cause psychological damage.
[47] I also accept the Crown’s submission that Mr. Jackman’s past conduct suggests a “likelihood” that he could cause death or injury or severe psychological damage to another person in the future. Court orders seeking to restrain his behaviour do not appear to restrain him. Dr. Gray found that the “threat of legal sanction is not enough to overcome the urge to engage in this pattern of behaviour”. Further, despite treatment from Dr. Kiren Patel (at the Toronto South Detention Centre), the underlying factors that motivate his behaviour (the belief that the Jemetz family abused his children) continue to exist, although they have loosened.
[48] For the abovementioned reasons, I designate Mr. Jackman a Dangerous Offender, pursuant to s. 753(1)(a)(i) of the Criminal Code.
ii. Has Crown Counsel satisfied the indifference requirement pursuant to s. 753(1)(a)(ii)?
[49] Though I designate Mr. Jackman a Dangerous Offender pursuant to subsection (i), I will address Crown Counsel’s subsection (ii) submissions. Section 753(1)(a)(ii) of the Criminal Code requires that Crown Counsel demonstrate a pattern of persistent and aggressive behavior with a substantial degree of indifference respecting the reasonably foreseeable consequences of his behaviour to others. Section 753(1)(a)(ii) is intended to deal with an individual who is callous and remorseless.
[50] A review of the offender’s behavior is not limited to the time of the offence. In addition, the attitude of the offender may be examined more broadly to identify the “truly evil personality type who has no compassion for others at any time”.[^17] Does Mr. Jackman care about the likely consequences of his actions? Or is he indifferent to the damage his conduct may cause?[^18]
[51] There is no doubt that Mr. Jackman was indifferent to the damage he caused at the time he committed the offences. The victims were traumatized by Mr. Jackman during the incidents I have set out in para. 44 above. Further, Mr. Jackman appears, by his own admission, to have intended to provoke fear in the Jemetz family. He told Dr. Gray that he was hoping that by threatening them (and thereby causing psychological stress), the Jemetz family would call the police. He hoped that call would prompt an investigation into the suspected abuse of his children by the Jemetz family, the very people he was threatening.
[52] I am satisfied that when viewed as a whole, Mr. Jackman has demonstrated a pattern of persistent aggressive behaviour and a substantial degree of indifference respecting the reasonably foreseeable consequences to other persons. Accordingly, I designate Mr. Jackman a Dangerous Offender pursuant to s. 753(1)(a)(ii) of the Criminal Code in addition to s. 753(1)(a)(i).
[53] For the abovementioned reasons, I am satisfied that Mr. Jackman poses a threat in the future.[^19] The prospect of him being successfully treated and manageable in the community is poor for the reasons set out below. For these reasons, I conclude that Mr. Jackman is properly designated a Dangerous Offender. I will now turn to a consideration of the fit sentence.
Family Background
[54] Mr. Jackman is 53 years of age. He was born in Vancouver, British Columbia. He advises that his father was the Vice-President of Wardair and later the President of Greyhound Bus. He then had a consulting business. His mother worked for the city as a clerk.
[55] Mr. Jackman’s parents separated when he was four years of age. He lived with his father and stepmother as his mother did not want to care for the children. He saw her every other Sunday growing up. He did not get along with his stepmother and describes his father as abusive.
[56] At age 12, Mr. Jackman was made a Crown Ward. He attended three foster homes and had no difficulties there. He spent 6 to 7 months in reform school, leaving it in grade 10.
[57] Mr. Jackman is the fourth sibling of five. He has contact only with his older brother, Howard. His last contact with Howard was in 2001. He says that he was sexually abused by his brother Michael and as such, has no contact with him. Another brother committed suicide.
[58] This family background demonstrates that Mr. Jackman would have very little family support in the community if released.
Education and Employment History
[59] Mr. Jackman had some difficulties in school. He would steal from others and shoplift. He cheated on his schoolwork and threw rocks through the library windows. He was involved in fights, was truant and ran away from home.
[60] At age 20, Mr. Jackman said he attended at the University of Guelph and completed five courses. Then, he traveled around North America. At one point, he worked at a power plant in Florida.
[61] Mr. Jackman states that he has been employed in various capacities in the past, including: cooking, driving a truck and driving a taxi. He often left his jobs without another one in place. His longest job was for two to three years, driving a taxi in 2004 in a town outside of Calgary. He has largely been supported by social assistance.
[62] Prior to his arrest, Mr. Jackman was living in a homeless shelter in Alberta, “In from the Cold”. He was receiving support from the AISH program which is the equivalent of the Ontario Disability Support Program in Ontario.
[63] Mr. Jackman wishes to start work as a cook to support himself and his children. He wants to look for a part-time job to set an example for his son, Zach. That said, Mr. Jackman has admitted that he would like to work, but has no marketable skills.
[64] This history shows that Mr. Jackman has little education or employment history to provide a routine or income if released into the community.
What is the appropriate sentence?
[65] Section 753(4) of the Criminal Code gives the court discretion as to the sentence to impose on Mr. Jackman, whom I have designated a Dangerous Offender.[^20] There are three options in sentencing Mr. Jackman: the imposition of a determinate sentence; the imposition of a determinate sentence followed by an LTSO; and the imposition of an indeterminate sentence.
[66] The framework for sentencing was set out in R. v. Boutilier[^21] at para. 70 as follows:
The framework a sentencing judge should adopt in exercising his or her discretion under s. 753(4.1) has been aptly explained by Justice Tuck-Jackson of the Ontario Court of Justice: R. v. Crowe, No. 10-10013990, March 22, 2017. First, if the court is satisfied that a conventional sentence, which may include a period of probation, if available in law, will adequately protect the public against the commission of murder or a serious personal injury offence, then that sentence must be imposed. If the court is not satisfied that this is the case, then it must proceed to a second assessment and determine whether it is satisfied that a conventional sentence of a minimum of 2 years of imprisonment, followed by a long-term supervision order for a period that does not exceed 10 years, will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. If the answer is "yes", then that sentence must be imposed. If the answer is "no", then the court must proceed to the third step and impose a detention in a penitentiary for an indeterminate period of time. Section 753(4.1) reflects the fact that, just as nothing less than a sentence reducing the risk to an acceptable level is required for a dangerous offender, so too is nothing more required.
[67] I will now consider these principles in the context of this application and explain why I have concluded that an indeterminate sentence should be imposed.
i. Is a determinate sentence appropriate?
[68] Neither counsel submits that a determinate sentence is appropriate. I agree and accordingly, it is not necessary for me to deal with this option in sentencing Mr. Jackman.
ii. Is a determinate sentence together with a Long-Term Supervision Order appropriate?
[69] In considering whether a determinate sentence followed by an LTSO is appropriate, Crown Counsel does not have the onus to prove beyond a reasonable doubt that there is no reasonable possibility of eventual control of the risk posed by the offender to the community. If the sentencing judge is uncertain whether there is a reasonable expectation that a lesser measure will adequately protect the public, then the sentencing judge should exercise discretion and impose an indeterminate sentence.[^22]
[70] The protection of the public is the paramount consideration in this exercise of discretion. Our Court of Appeal expressed this principle in R. v. D.V.B.[^23] as follows:
[I]n a contest between an individual offender’s interest in invoking the long-term offender provisions of the Code and the protection of the public, the latter must prevail.[^24]
[71] Our Court of Appeal has commented on the considerations for imposing an LTSO:
Resort to the long-term offender regime is appropriate only where there is evidence that an offender can be meaningfully treated, so that the offender's risk to the public can be controlled at an acceptable level, within a determinate period of time. A mere hope that treatment will be successful, or simple optimism that there is a reasonable possibility of eventual control of the offender's risk in the community, is insufficient to ground a determinate sentence: R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357.[^25]
[Emphasis added]
[72] I am not satisfied that Mr. Jackman can be meaningfully treated so that his risk to the public can be controlled at an acceptable level within a determinate period of time. Any plan that Mr. Jackman can be meaningfully treated is based on the passage of time, hope and optimism. This is insufficient.
[73] Although Mr. Jackman has been recently treated in the Toronto South Detention Centre, there is no history from which I am able to conclude that Mr. Jackman can be meaningfully treated during a period of supervision of 10 years in the community. My finding is based not only on the offences committed and described above, but also on consideration of the following facts regarding Mr. Jackman, including the opinions of Drs. Gray and Levin.
Relationship History
[74] At age 20, Mr. Jackman lived with a woman by the name of “Susan” for three years. Together they had a son, Andrew. They broke up because they had little in common. Andrew lives in Germany. Mr. Jackman has no contact with him.
[75] Mr. Jackman then had a relationship with Ms. Kim Spooner. Her daughter was the victim of his assault conviction in 1992 (as discussed above).
[76] Mr. Jackman was then in a common-law relationship with Olena. They lived together for 10-12 years and had five children. They separated in 2004.
[77] Mr. Jackman’s children with Olena include a 22-year-old son, a 20-year-old son, an 18-year-old daughter, a 15-year-old son and a 14-year-old child (Kalynna/Vincent). Mr. Jackman’s two youngest children live in Toronto. The others live in Calgary. He had last seen his eldest in 2015, his second eldest in 2014 and he has not seen the youngest for years.
[78] Mr. Jackman has a four-year-old daughter with a third woman by the name of Leigh.
[79] This relationship history demonstrates that Mr. Jackman has very little support in the community.
The Criminal Record
[80] Mr. Jackman has 42 prior entries on his criminal record, including the following:
| No. | Date | Offence | Sentence |
|---|---|---|---|
| 1 | February 28, 1983 | Break, enter and theft. | Suspended sentence and probation for two years. |
| 2 | Break, enter and commit. | As above. | |
| 3 | Break and enter with intent to commit. | As above. | |
| 4 | Possession of a weapon. | As above. | |
| 5 | Theft under $5,000. | As above. | |
| 6 | January 29, 1985 | Break, enter and theft. | 4 months in custody. |
| 7 | Mischief to public property. | 2 months consecutive. | |
| 8 | Breach of probation. | 2 months concurrent. | |
| 9 | March 6, 1985 | Possession of a prohibited weapon. | 14 days consecutive to the sentence he was serving. |
| 10 | November 15, 1985 | Break, enter and theft. | 18 months in custody and probation for two years. |
| 11 | Break, enter and theft. | As above, concurrent. | |
| 12 | Break, enter and commit. | 18 months concurrent. | |
| 13 | Break, enter and commit. | 18 months concurrent. | |
| 14 | Break, enter and commit. | 18 months concurrent. | |
| 15 | Utter forged documents. | 2 months concurrent. | |
| 16 | April 26, 1989 | Fraud. | 2 months in custody and 1 years’ probation. |
| 17 | March 22, 1990 | False pretences. | 10 days in custody. |
| 18 | Fail to comply with probation. | 25 days consecutive. | |
| 19 | Fail to comply with probation. | 25 days consecutive. | |
| 20 | October 9, 1992 | Assault cause bodily harm. | 1 year in custody and probation for 3 years. |
| 21 | Assault cause bodily harm. | As above, concurrent. | |
| 22 | Assault. | As above, concurrent. | |
| 23 | Attempt to obstruct justice. | As above, concurrent. | |
| 24 | October 27, 1992 | Fraud under $1,000. | 30 days in custody. |
| 25 | Fraud under $1,000. | As above, concurrent. | |
| 26 | Fraud under $1,000. | As above, concurrent. | |
| 27 | Fraud under $1,000. | As above, concurrent. | |
| 28 | Fraud under $1,000. | As above, concurrent. | |
| 29 | Fraud under $1,000. | As above, concurrent. | |
| 30 | Fraud under $1,000. | As above, concurrent. | |
| 31 | Fraud under $1,000. | As above, concurrent. | |
| 32 | October 10, 1997 | Fraud under $5,000. | 6 months in custody. |
| 33 | Fraud over $5,000. | As above, concurrent. | |
| 34 | Possession of counterfeit money. | 3 months consecutive. | |
| 35 | December 16, 1999 | Unlawfully at large. | 15 days in custody. |
| 35 | January 8, 2008 | Assault. | 1 day in addition to 74 days already served. |
| 37 | Fail to comply with recognizance. | 1 day in addition to 18 days already served. | |
| 38 | Fail to comply with recognizance. | 1 day in addition to 18 days already served. | |
| 39 | February 7, 2008 | Breach of recognizance, pursuant to s. 811 of the Criminal Code. | 30 days, intermittent. |
| 40 | July 8, 2008 | Fail to comply with recognizance. | 1 day in custody. |
| 441 | June 8, 2010 | Fail to comply with recognizance. | $500 fine. |
| 42 | October 20, 2016 | Obstruct justice. | 60 days, time served. |
[81] As his criminal record demonstrates, Mr. Jackman has had difficulties with assaultive behaviour. These offences were summarized in para. 44 above. Mr. Jackman’s criminal record also includes several convictions for dishonesty. Such a criminal history demonstrates a limited forecast for success in the future.
Record of Supervision
[82] Mr. Jackman has a poor record of complying with court orders requiring supervision. He has been convicted of breaching his terms of probation or the terms of his recognizances in the following years: 1985, 1990, 2008 (three times) and 2009. The breaches in 2008 and 2009 involved Mr. Jackman contacting women in violation of his court orders. He was found guilty of being unlawfully at large in 1999. Mr. Jackman’s history on non-compliance provides little comfort that he will be able to comply with the terms of an LTSO.
Lack of Empathy
[83] Mr. Jackman shows little remorse for the victims of his offences. This is evident from the various reports of treatment providers set out below.
[84] In this proceeding, Mr. Jackman denied any intention of hurting members of the Jemetz family. He advised that he feels “bad about it” but that he cannot contact members of the Jemetz family because the law will not permit it. When asked if he wished to say anything at the conclusion of this proceeding, he said that he was “sorry”.
Substance Abuse
[85] Mr. Jackman has said that he first had alcohol in his teens but drank alcohol most heavily in his 20’s. He eventually discontinued drinking alcohol.
[86] Mr. Jackman advises that he began using cannabis at age 11. He continued using it regularly in his 40’s, about four times per week.
[87] As a teenager, Mr. Jackman experimented with LSD. When he lost custody of his children in and around 2005, he started exceeding his prescribed doses of benzodiazepines. This lasted for several years and had a negative impact on his memory.
[88] Mr. Jackman used crack cocaine several times and used it intravenously on occasion. He has tried morphine, OxyContin and heroin on several occasions. Mr. Jackman conceded using Xanax which he says impaired his memory regarding his early criminal offences.
[89] Mr. Jackman began using crystal meth in 2010. Mr. Jackman admits that he was using a lot of crystal meth at the time the messages were sent to the Jemetz family. In his report, Dr. Gray commented on Mr. Jackman’s use of crystal meth as follows:
He endorsed many symptoms of stimulant use disorder in the context of overuse of crystal meth. This included: cravings to use the substance; spending a lot of time acquiring or using crystal meth; withdrawal symptoms; using it despite deleterious health effects including cardiac abnormalities; crystal meth affecting his relationships and causing him to lose jobs; and difficulty stopping his use of crystal meth despite efforts to do so.
In terms of rehabilitation programs, in addition to the programs related to addictions mentioned below, Mr. Jackman said he attended “Landers” an 18-day residential treatment program in the distant past. As noted above, he also attended Claresholm for a six to nine-month rehabilitation program which he felt was the best program he had attended. He attended Narcotics Anonymous meetings sporadically over the years. He also attended two other residential treatment programs including “Oxford House” in Calgary and one in Lethbridge. He attended Drumheller in 2013 but left that program because ‘I had no intention of stopping my crystal meth’.
[90] Mr. Jackman says that he does not plan to use crystal meth again. He hopes to attend Narcotics Anonymous. He also wishes to attend at the Forensic Assessment Outpatient Services Addiction Program for assistance with his drug issues.
[91] Mr. Jackman’s stated commitment to refrain from narcotics is admirable. The fact that he has been in custody since May 30, 2015 would also help with curbing his addictions. That said, his ability to refrain from using crystal meth has been within a controlled environment. He has received several rounds of treatment in the past. None have been effective in curbing his desire and use of crystal meth when in the community.
Rehabilitation and Past Treatment
[92] Mr. Jackman reports that he has done programs through the Forensic Assessment Outpatient Services Addiction Program, including programs addressing anger management and family re-unification. Mr. Jackman says that he was helped with his anger and that he uses, “cognitive behavioural therapy to concentrate on what I’m in control of” and to control his feelings. Mr. Jackman stopped attending therapy in 2006 “probably” because “the court decided that I couldn’t get my kids back so there is no point”.[^26]
[93] Dr. Gray reviewed Mr. Jackman’s past treatment interventions which may be summarized as follows:
Morton House
[94] Mr. Jackman was in Morton House on a few occasions as a youth. The records from his stays there may be summarized as follows:
February 1982: The documents noted that Mr. Jackman “seems to have problems accepting advice, criticism or reprimand from authority figures” and “tends to be uncaring and self-centered”. On the other hand, the report noted that he was a “very sociable young man” and that his “interaction with peers has been positive”. The report notes that Mr. Jackman actively participated in the program and the only problem appeared to be “in the area of completing assigned duties”.
June to July 1982: Mr. Jackman returned to Morton House and was there from June 16, to July 28, 1982. Dr. Gray summarized a report that stated staff noted that Mr. Jackman “is at the stage of successful turnaround or constant recidivism…he sees life as a party until he is 16 and the law put a damper on his ‘fun’”. Staff recommended that Mr. Jackman attend a group home with structure and “emotional counselling”. They noted that Mr. Jackman “has a lot of potential held in check by some unfortunate circumstances and problems in adjusting to them”.
Staff at Morton House also note that Mr. Jackman responded well to staff direction and was sometimes pleasant with staff, but “seemed to be greatly affected by negative moods and lack of respect for staff authority on several occasions”. The report notes that Mr. Jackman “has not learned a lesson from his actions and has not treated the situation with the seriousness and respect it obviously deserves” in relation to his offences leading to his placement at Morton House.
Another report from Morton House, dated June 16, 1982 noted that Mr. Jackman’s “attitude was very unpredictable during his last stay. His behaviour could change rapidly from friendly and cooperative to frustrated and violent. His problem with this seemed more noticeable towards the end of his stay”.
Ontario Correctional Institute
[95] Mr. Jackman also attended at the Ontario Correctional Institute (“OCI”) on May 14, 1986, following a conviction for break and enter and uttering threats. He was 18 years of age. The problems considered by OCI included “inappropriate and dangerous expression of anger” and problems with his educational level, job skills, relationships, drug abuse and release plans. I note that the same conclusions could be made now in 2019, over 33 years later and following significant rounds of intervention.
[96] Mr. Jackman refused phallometric testing, but Dr. Freund “cautioned that Mr. Jackman may have a need to present himself as sexually dangerous [rather] than actually being so”.
[97] Dr. Gray referred to and summarized Mr. Jackman’s discharge note from OCI as follows:
The discharge note remarks that Mr. Jackman was at times angry and ‘revengeful’ but at other times ‘pleasant, thoughtful and sensitive’. It noted also that he assaulted other residents on ‘two or three occasions’ and that he was segregated for a time because of ‘possible loss of control’.
(It should be noted that Mr. Jackman, since incarcerated in 2015, has assaulted his cellmates resulting in him being segregated at the Toronto South Detention Centre.)
[98] A psychiatrist, Dr. Coulthard, queried whether Mr. Jackman had a borderline personality disorder. Dr. Coulthard regarded Mr. Jackman as “a somewhat irresponsible individual who may not readily comply with follow-up programs”.
Guelph Assessment and Treatment Unit
[99] Mr. Jackman stayed in the Guelph Assessment and Treatment Unit (“GATU”) from October 11, 1992 until May 4, 1993. The Coordinator of Treatment Services at OCI found that Mr. Jackman “was not a strong treatment candidate” because of his “past performance and present assaulting experience”. It appears that that is the reason for his transfer to GATU.
[100] Dr. Gray summarized the discharge summary from GATU as follows:
Mr. Stahl [Social Work Supervisor] noted that treatment targets included repressed anger, ‘violence towards women and children and inability to empathize with others (especially his victims) and lack of social consciousness’. Mr. Stahl noted that Mr. Jackman had attended and participated in stress management, communications, problem solving, anger management, family conflict and discharge planning groups but ‘usually received mixed reviews’. Mr. Stahl said that Mr. Jackman was ‘without any evidence of major mental disorder’.
Dr. Richard Steffy
[101] A psychological assessment dated November 14, 1993 by Dr. Richard Steffy was summarized by Dr. Gray as follows:
Dr. Richard Steffy noted that Mr. Jackman ‘admits torturing children in the past, enjoying inflicting pain on others and failing to show any indications of remorse or guilt’. He further notes ‘during this course of imprisonment he has accumulated many misconducts and has thereby continued to impress people as a violence-prone individual, possibly a dangerous offender’. He was ‘described as a bright individual – verbally facile and capable of quite an intelligent conversation’ despite only completing Grade 10. Dr. Steffy further notes that Mr. Jackman ‘has been described by various workers as an egocentric, sadistic, narcissistic and impulsive individual with poor self-concept and little insight although he is capable of civil conversation, maintains good rapport and can be quite cooperative with interview and psychological testing, he is nevertheless thought of as an angry individual who could quickly become uncooperative and show a violent streak’. Dr. Steffy said that Mr. Jackman ‘readily considers his own criminal motivation and his lack of potential for change. He recognizes that he finds crime satisfying both economically as well as emotionally. He seems to derive thrills from some of the dangerous situations he encounters although he also reports having concerns over his unfeeling and jaundiced attitude towards his own criminality and violence’. Dr. Steffy said that Mr. Jackman spoke about his early adverse behavioural childhood experiences including being beaten by his father as possible reasons for his later criminal lifestyle. He also noted that Mr. Jackman can express both pro-social and pro-criminal motivations in a short period of time. He quoted Mr. Jackman as saying that he has a ‘lack of conscious [sic], lack of guilt and a memory [of] being violent without feeling. At times this perturbs him understanding that his lack of feelings is not natural and that he must be suffering a mental illness. He occasionally wishes that his violence occurred under the influence of alcohol or rage but instead they are done at times where he feels perfectly composed and in control’. Although Dr. Steffy said that psychotherapy may be helpful if it focusses on Mr. Jackman’s denial of anger, ‘strong feelings are likely to be elicited if he deals with his past. Mr. Jackman’s potential for managing his affairs without further criminal activity is small indeed’.
Ontario Parole Board
[102] Dr. Gray summarized a report to the Ontario Parole Board dated February 17, 1993 by Mr. Stahl as follows:
[A] report to the Ontario Board of Parole, Western Region, dated February 17, 1993, by Mr. Stahl, noted that Mr. Jackman had terminated his involvement in the Anger Management Group after a few sessions and ‘expressed disappointment in the Family Conflict Group’. Mr. Jackman was noted by Mr. Stahl as to have “impressed this writer as being a narcissistic, egocentric and sadistic individual who has limited ability to experience empathy or compassion for others. These characteristics negate this man’s ability to have remorse for his past criminal behaviours (which are substantial) or benefit from a therapeutic group experience since that would require the ability to empathize with others’….This man has just begun that process of enquiring [sic] insight which would be requisite for meaningful change”. In a “GATU Assessment Summary” dated December 31, 1992, again authored by Mr. Stahl, Mr. Jackman was asked about his 1990 assaults against his common-law partner at the time and their 2-year-old daughter. Mr. Stahl described Mr. Jackman as denying the incident against the child saying “that it was the mother who tortured the child (biting, cigarette burns) but blamed him when the injuries were discovered by police. Mr. Jackman does freely admit to having ‘really horribly’ assaulted that child on some half-dozen previous occasions (to bring out as much pain as possible)”.
[103] The Parole Board Report is to be contrasted with that of the John Howard Society which Dr. Gray summarized as follows:
…. John Howard Society Social Worker, Lorna McBurney, described Mr. Jackman very positively in her document dated May 21, 1993. She writes that ‘5 billion of him and we have a perfect world. Grasps humanity with a degree not seen before and more than likely not to be seen again’. Further she writes that he is an ‘all around great guy’.
Psychologist, Ms. Maureen Speidel
[104] Mr. Jackman received individual therapy from Ms. Speidel (a psychologist) between 2005 and 2009 and then again from 2011 to 2012, although the visits appear to be sporadic. The in-take documentation notes that Mr. Jackman presented with problems of “lying, self-esteem, some peer issues at school/was in a physical fight”. He was having troubles over custody issues with Olena.
[105] Although Ms. Speidel and Mr. Jackman had a therapeutic relationship, it turned personal. In 2012, Mr. Jackman began texting Ms. Speidel. She described the messages as “confusing and colluded”. She stated the following, “he speaks of an instance where he touched writer’s pregnant belly and how he had told myself that he would ‘screw her’”. He asked Ms. Speidel if it was within the boundaries of a patient/therapist relationship to recommend him as a babysitter to her husband. He referred to his stalking behaviour with many of the statements not making sense. Ms. Speidel believed that Mr. Jackman was at moderate risk of harming her. That said, the texts became more abusive calling her an “egomaniac” and a “motherfucking bitch”.
[106] Ms. Speidel filed a Statement of Claim asking for a restraining order because of Mr. Jackman’s telephone and text messages. The messages were described as “verbally abusive, sexually abusive and extremely concerning despite writer requests for him to stop and only contact her at Mental Health or to contact Access Mental Health”. The request was granted on March 15, 2012.
Records from Alberta Health
[107] Between September 29, 2005 and May 15, 2009, Mr. Jackman made 16 visits to Alberta hospitals. He was given the following diagnoses: “chronic depression”, “bipolar disorder depression”, “panic attack and anxiety”, and “polysubstance abuse, anxiety”, among others.
Toronto South Detention Centre
[108] On February 12, 2015, Mr. Jackman was seen by a social worker (Ms. Katie Konyk) in the Forensic Early Intervention Service (“FEIS”). Thereafter, he was visited by Dr. Patel, a psychiatrist. Dr. Gray summarized Dr. Patel’s findings as follows:
… After speaking to Mr. Jackman about various topics, including Mr. Jackman’s beliefs that his in-laws were abusing his children, he assigned diagnoses of ‘delusional disorder – belief system remains abnormal. No significant change; symptoms of anxiety/affective changes/reported panic attacks – unclear whether these are distinct from underlying delusional disorder; rule out schizophrenia/schizoaffective disorder’.[^27]
[109] The notes made in December 2015 suggest that Mr. Jackman stated that he had an appointment with a forensic psychologist to prove that he is not crazy. He expects to be out of custody as soon “as they realize he is speaking the truth about his children”. He then requested a meeting with Dr. Patel to find out if there is medication for delusions. As of December 2015, Mr. Jackman believed he was delusional and “continued to believe that his children were being sexually abused and raped by a pedophile ring controlled by his ex-wife and her family”.
[110] In February 2016, Mr. Jackman requested some literature about delusions. He continued to express his concerns that his children are being sexually abused despite the fact that he had not used crystal meth for 10 months. Dr. Patel queried whether the information presented by Mr. Jackman was accurate “or related to an underlying abnormal belief system”.
[111] Dr. Gray also reports that, “Mr. Jackman continued to see Dr. Patel on a monthly basis until a final appointment on September 18, 2017. Dr. Patel continued to list ADHD, delusional disorder and “rule out schizophrenia/schizoaffective disorder” as diagnoses for Mr. Jackman. Based on his progress notes, Dr. Patel appeared to discuss in his meetings with Mr. Jackman his legal situation and his beliefs around his in-laws abusing his children.”
[112] This history shows that despite his attendance in various programs and the prescription of medication in a controlled setting, Mr. Jackman has made little advancement. Despite treatment, Mr. Jackman has continued to abuse narcotics, commit crimes and be reincarcerated. His risk has remained unchanged over the decades. He continues to believe the Jemetz family abused his children. They remain at risk as a result.
Current Diagnosis
[113] Both Drs. Gray and Levin are qualified in the field of forensic psychiatry and both testified during this hearing. Dr. Gray conducted a thorough review of Mr. Jackman’s history and provided a psychiatric assessment pursuant to s. 752.1 of the Criminal Code.
[114] Dr. Levin was asked, by Counsel for Mr. Jackman, to prepare a report to address “treatability” of Mr. Jackman. She relied on the history set out in Dr. Gray’s report and agrees with much of his diagnoses. Since she did not conduct a risk assessment. She testified that she could not take issue with Dr. Gray’s assessment of risk which he deemed as ‘high’.
[115] The real difference between the reports and evidence of Drs. Levin and Gray is that Dr. Levin finds that Mr. Jackman is suffering from Schizophrenia and Dr. Gray finds that he suffers from Delusional Disorder. Both disorders can be treated but the doctors agree that Schizophrenia is more easily treated than Delusional Disorder.
Agreed Upon Diagnoses
[116] As I have stated above, Drs. Gray and Levin agreed on several diagnoses for Mr. Jackman. They may be summarized as follows:
Conduct Disorder as a Youth
[117] Dr. Gray observed that Mr. Jackman, in his youth, ran away from home. He was involved in fights, participated in the early use of recreational drugs and was repeatedly truant. He committed acts of theft and vandalism. Mr. Jackman met more than the necessary 3 of 15 criteria for a diagnosis of Conduct Disorder as a Youth, a diagnosis that is necessary to make a diagnosis of Antisocial Personality Disorder. Dr. Levin agrees.
Mood Disorder
[118] Dr. Gray found that Mr. Jackman shows some signs of a mood disorder. Specifically, Dr. Gray made a diagnosis within the depressive spectrum in Mr. Jackman’s early years. That said, a diagnosis of Depressive Disorder in the past is too difficult to make with certainty. Mr. Jackman has not shown signs of depression in many years, including in and around the time of the predicate offences. Dr. Levin agrees.
Stimulant Use Disorder, Severe
[119] Only 2 of 11 criteria are necessary for the diagnosis of Stimulant Use Disorder. Dr. Gray found that Mr. Jackman showed evidence of 6 of 11. This makes his stimulant use disorder “severe”. Dr. Levin agrees that Mr. Jackman has abused a variety of substances, but mainly crystal meth.
Attention Deficit Hyperactivity Disorder (“ADHD”)
[120] Dr. Gray found that a diagnosis of ADHD is possible, although more formal and objective testing may be required to confirm this diagnosis. Dr. Levin is also unsure if Mr. Jackman suffers from ADHD. He has a history of impulsivity and could be disruptive in his behaviour. As such he may have ADHD. Further testing would be required to be conclusive.
Antisocial Personality Disorder
[121] There is strong evidence, according to Drs. Gray and Levin, that Mr. Jackman suffers from Antisocial Personality Disorder. Antisocial Personality Disorder is a set of maladaptive character traits that begin in adolescence. These traits cause difficulties in social and occupational functioning and are “fixed and inflexible in nature”.
[122] DSM-5 shows that Antisocial Personality Disorder is, “a pervasive pattern of disregard for, and violation of, the rights of others” occurring since age 15, as indicated by the presence of at least three of seven listed criteria.
[123] All seven criteria required for a diagnosis of Antisocial Personality Disorder appear to be met with Mr. Jackman. They include: failure to conform to social norms with respect to lawful behaviours, as indicated by several criminal convictions; irritability and aggressiveness, as indicated by repeated physical fights or assaults; impulsivity or failure to plan ahead; lack of remorse; consistent irresponsibility; deceptiveness; and reckless disregard for the safety of self and others.
[124] I will now turn to a consideration of the different diagnoses of Drs. Gray and Levin. The difference is important because Schizophrenia is easier to treat than Delusional Disorder.
Dr. Levin: Schizophrenia
[125] Dr. Levin believes that Mr. Jackman had an onset of Schizophrenia about 7 or 8 years ago. She concluded that Mr. Jackman suffered from Schizophrenia because two of the five requirements for the diagnosis were met: genetic load (a brother with Schizophrenia) and disorganized speech. I will deal with each basis separately.
i. Genetic Load
[126] The observation that Mr. Jackman has a genetic load for Schizophrenia because he has a first-degree relative (a brother) with this diagnosis is unreliable. Mr. Jackman has given inconsistent statements on this issue which may be summarized as follows:
To the staff at Rockyview General Hospital in 2014: Mr. Jackman is not sure if his younger brother, who took his own life, had mental health or addiction problems.
To Dr. Gray in 2018: Mr. Jackman told Dr. Gray that he had one brother who died of suicide. Another brother had Schizophrenia.
To Dr. Gojer in 2019: Mr. Jackman said that, “His younger brother killed himself by jumping off a bridge. He also suffered from Schizophrenia”.
[127] Mr. Jackman gave three accounts of whether he had a brother who had Schizophrenia. In 2014, he was unsure if he had a brother with Schizophrenia. In 2018 the he stated that the brother who committed suicide was a different brother from the one who had Schizophrenia. In 2019 he stated that the brother who committed suicide was the same brother who had Schizophrenia. Obviously, the three accounts cannot all be true.
[128] For these reasons, I find that Mr. Jackman’s self-report of a family member having Schizophrenia is unreliable.
ii. Disorganized Speech
[129] Dr. Levin stated in her report that Mr. Jackman “presented with delusions and disorganized speech”. That said, she testified that Mr. Jackman displayed no evidence of disorganized speech to her personally. What she relied upon in concluding that he has disorganized speech is the following:
a. The fact that Dr. Gray stated in his report that “the patient is logical and goal oriented but at times he has trouble following as if he has some difficulty with thought process”;
b. That Dr. Gojer described Mr. Jackman as “disjointed”; and
c. That Mr. Jackman had sent Ms. Speidel messages that showed a “difficulty making coherent sentences”.
[130] The bases for relying on these three factors is not reliable. Dr. Gray had said that on occasion, Mr. Jackman had given inconsistent accounts, but this could not be equated to disorganized speech. Further, it should be observed that Dr. Gray did not rely on this factor to conclude that Mr. Jackman suffered from Schizophrenia.
[131] Dr. Levin could not recall any specific examples of disorganized speech from the records of Ms. Speidel that ended in 2012.
[132] Dr. Gray reviewed the records from the Alberta hospitals from 2014. He observed that personnel at both hospitals concluded that Mr. Jackman was not suffering from a psychotic disorder.[^28] Mr. Jackman did not suffer from thought disorder which means that he is able to think clearly and present ideas clearly. As Dr. Gray concluded, “This is not consistent with someone with untreated Schizophrenia. Usually there’s thought disorder … the speech is more disorganized, tangential, and they’re not as easily able to convey ideas in a linear, easy to follow manner”.[^29]
[133] Further, Dr. Gray found that Schizophrenia manifests itself in late teens to early 20’s. There is no evidence that it did so in Mr. Jackman’s case. A lot of conduct disorder occurred later in Mr. Jackman’s life, in his 30’s or 40’s. Delusional Disorder appears later in life and that appears to have occurred with Mr. Jackman. He was functioning in the community which is “at odds” with untreated Schizophrenia. Dr. Gray concluded that “Finally, and the main persistent symptom Mr. Jackman displayed was this fixed false belief that his in-laws were abusing his children so it seemed much more fitting to make a diagnosis of Delusional Disorder rather than Schizophrenia in light of all available information.”[^30]
Dr. Gray: Delusional Disorder
[134] I agree with Dr. Gray. The evidence supports a diagnosis of Delusional Disorder. To assign a diagnosis of Delusional Disorder, Dr. Gray stated that, amongst other things:
i. “The subject would need to show evidence of one or more delusions which last one month or longer and do not markedly impact overall functioning”;
ii. Full criteria for a diagnosis of Schizophrenia must also not be met;
iii. If manic or depressive episodes have occurred, they would need to be brief relative to the duration of the delusional periods; and
iv. The symptoms of Delusional Disorder must not be only attributable to the physiological effects of a substance or other medical condition.
[135] “Delusions” are “fixed false beliefs that are not culturally sanctioned”. The subject holding the delusion does not change his or her view despite clear conflicting evidence. Symptoms of Delusional Disorder appear later in life (as opposed to Schizophrenia, which appears in the late teens or early twenties).
[136] Dr. Gray observed that Mr. Jackman is an admitted and heavy user of crystal meth which can provoke violent behaviour or delusional thinking. That said, Dr. Gray observes that Mr. Jackman continued with such thinking well before he was likely a user of crystal meth (i.e., in 2004) and since he has been incarcerated for these offences (i.e., since 2015). For example:
a. Dr. Gray observed that the records show that Mr. Jackman has held negative views of Olena dating back to when their relationship ended in 2004. The documents from Child and Family Services of Alberta show that he sent frequent and often lengthy emails and messages to Olena and her family reflecting his view that they were mistreating his children.
b. In 2007, a psychological assessment by Child and Family Services Alberta referred to the fact that Mr. Jackman believed that Olena was abusing his children.
c. In 2012 when the messages that are the subject of this proceeding were left for the Jemetz family, Mr. Jackman demonstrated a constant and obsessive belief that Olena and members of her family were sexually abusing his children.
d. Since he was incarcerated in May 2015, Mr. Jackman has sent letters from the jail (four in 2016, none of which were to the Jemetz family) demonstrating that he still fears for the safety of his children. This behaviour continued despite the fact that he had been taking antipsychotic medication while at the Toronto South Detention Centre. It continues as of today.
e. Previous psychiatrists have diagnosed Mr. Jackman with Delusional Disorder, including most recently Dr. Patel at the Toronto South Detention Centre.
[137] Dr. Gray concluded that as a result of the above, Mr. Jackman suffers from Delusional Disorder. I agree.
Risk Assessment
[138] Dr. Gray has conducted various risk assessment tests and has concluded that Mr. Jackman’s risk of committing a serious personal injury offence is high. The results are as follows:
| Test | Definition provided by Dr. Gray | Conclusion Re: Mr. Jackman |
|---|---|---|
| PCL-R | Dr. Gray conducted a risk assessment using the Psychopathy Checklist-Revised (“PCL-R”). Dr. Gray explains that the PCL-R “was designed to compare the subject against the psychological construct of psychopathy which consists of interpersonal, affective, and antisocial lifestyle factors. Psychopathy has been shown to be associated with recidivism with violent or general offences and is a strong predictor of risk. Higher scores on the PCL-R also indicate poorer prognosis for treatment”. The traits that are involved in a diagnosis of psychopathy include, manipulativeness, lying, grandiosity, etc. | Dr. Gray assigned Mr. Jackman a score of 31. Dr. Gray concluded that, “Mr. Jackman’s total score of 31 would place him in the 88.0 percentile compared to a sample of North American male offenders. His score is hence very high, and above the cut-off score of 30 to meet the psychological construct of psychopathy. While the average score on the PCL-R for an incarcerated male offender is between 22 and 23, the average score on for the general population of adult males is approximately 4.” |
| VRAG-R | Mr. Jackman was assessed using the Violence Risk Appraisal Guide (the “VRAG”). This is an actuarial instrument used to assist in risk prediction of violent offenders through the identification of specific static or historical factors in the offender. | Dr. Gray found that Mr. Jackman scored +26 (one point shy of the highest score). Dr. Gray concluded the following based on this score: “With the score of +26, Mr. Jackman is in the second-highest of 9 ascending risk categories with a very high risk of reoffence. Offenders released into the community who had similar risk scores to Mr. Jackman on this instrument had a probability of reoffending with a violent offence at a rate of 60% in five years and 82% in fifteen years. His score of +26 is higher than 90% of those offenders assessed with the instrument in the study population.” |
[139] Even if I accept that Dr. Gray’s opinion that Mr. Jackman’s risk for re-offence was partly informed by the letters sent from the Toronto South Detention Centre (years ago in 2016) or based on the VRAG, which does not forecast recidivism for a non-violent offence, I accept his opinion that Mr. Jackman’s risk of committing a serious personal injury offence is high, in particular with respect to the Jemetz family.[^31] These are but two factors that Dr. Gray has taken into account in assessing Mr. Jackman’s risk. Dr. Gray’s report and testimony show that he considered his own clinical assessment of Mr. Jackman, together with the voluminous information he had available to him, including Mr. Jackman’s criminal history.
[140] Further, I accept Dr. Gray’s conclusion about Mr. Jackman’s risk of reoffending, despite the fact that there is evidence that since his arrest, Mr. Jackman appears to be taking steps to reduce his risk to members of the community, including the Jemetz family. For example:
i. While incarcerated at the Toronto South Detention Centre, Mr. Jackman agreed to meet with Dr. Patel on a repeated basis and agreed to treatment recommendations which Dr. Gray conceded is a “step in the right direction”.[^32]
ii. Dr. Patel has been prescribing medication for what he believes is a psychotic disorder, specifically Delusional Disorder. Other medications may be available to deal with Mr. Jackman’s delusions.
iii. As a result of his medication, the symptoms of Mr. Jackman’s Delusional Disorder are getting a “bit” better.[^33] For example, Mr. Jackman now realizes that although “there may have been some concerns about sexual abuse, his belief that his ex-partner’s family were involved in a full conspiracy to cover up these allegations … probably did not happen”. (That said, Dr. Gray cautions that there is the possibility that Mr. Jackman knows that saying he still believes the Jemetz family is abusing his children would result in a longer term in jail.)[^34]
iv. There is no evidence of any further correspondence being sent to the Jemetz family since his incarceration. Other than four letters sent in April, July and October 2016 to the Consul General of Israel, Brenda Smith, the police and his mother, there is no evidence that Mr. Jackman has sent any harassing correspondence.[^35]
v. There is no evidence that Mr. Jackman has communicated, at all, with the Jemetz family since his incarceration in May 2015.
vi. That Mr. Jackman has expressed a desire to start serving his sentence in Alberta is positive.[^36]
vii. Mr. Jackman expressed a desire to discontinue any use of stimulants such as crystal meth, which is a step in the right direction.
viii. Mr. Jackman could receive cognitive behavioural therapy while on an LTSO, which would be beneficial.[^37]
ix. Mr. Jackman has agreed to an increased sentence in the reformatory to permit a referral to the St. Lawrence Treatment Centre, where Dr. Gray has said that he could be treated, which shows a desire to change.
x. Mr. Jackman is showing signs of remission (although not complete remission because he still believes that the Jemetz family may have abused his children).[^38]
xi. There is no conviction for a violent physical offence on Mr. Jackman’s record for the past 11 years since 2008. The longest sentence imposed in 20 years was a 30-day intermittent sentence. These are signs that Mr. Jackman could be managed in the community.
[141] Despite these favourable advances, it appears that Mr. Jackman has not participated in programs during his time at the Toronto South Detention Centre which might have demonstrated a motive to change. But for some medication and the lack of access to crystal meth, Mr. Jackman largely remains the same person he was when he committed these offences and went into custody in 2015. Little has changed.
[142] Further, I accept that it has been years since Mr. Jackman was convicted of a violent physical offence and he has not been incarcerated for a significant period of time. I also acknowledge Dr. Gray’s opinion that Mr. Jackman would likely breach his order by contacting the Jemetz family and being incarcerated before he could physically assault them. He also “thinks” that the risk to people other than those connected with the Jemetz family is “fairly low”.[^39] However, our public should not have to wait for Mr. Jackman to commit a particularly violent and grievous offence before he can be declared a Dangerous Offender and receive an indeterminate sentence.[^40]
[143] While there may be small signs of optimism, Mr. Jackman continues to pose a high risk of reoffence in the future. Further, it remains uncertain as to whether Mr. Jackman can be managed in the community, for the reasons set out immediately below.
Treatability
[144] Dr. Gray cannot rule out the “possibility” that if Mr. Jackman is given an LTSO of 10 years, Mr. Jackman “would gain the insight necessary to incapacitate his own risk”.[^41] However, Dr. Gray described Mr. Jackman’s three elements of risk that impair his treatability. He testified:
… [T]here are three main factors motivating the sort of offences that got him into trouble in the context of the index offences. The first one … is Delusional Disorder, so this fixed belief that his children are being abused by members of his in-laws’ family. So that’s one part. But then that’s not the only part.
Another part is the substance abuse which causes a disinhibiting influence and can, in effect, dissolve a lot of the concepts he might have learned in psychological therapy because it impairs your ability to access coping skills or whatever things in your memory from therapy would be helpful to prevent yourself from doing the sort of things that can get you into trouble.
The third one is the personality structure. … People with a diagnosis of Antisocial Personality Disorder, and especially those with a high score on the psychopathy checklist, tend to be very challenging to engage in therapy, that’s what the evidence shows, especially if the PCL-R score is 25 or above. The reason for this is somewhat self-evident if you read some of the traits that are involved in a diagnosis of psychopathy or the psychopathy checklist, that is, manipulativeness, they might be manipulating the therapist to get a result you want; not being truthful, that’s part of the lying criteria; the grandiosity, not only maybe creating impression but perhaps thinking that you can get by without therapy or minimizing the need for therapy. There are a lot of different elements in the PCL-R that make treatment a challenge.
So there’s these three elements that are all necessary to address in order to help prevent his risk for re-offence. It’s not just getting a psychologist to sit down with him once a week for six weeks and then that’s it.
[145] Both Drs. Gray and Levin agree that just because a person is high risk, it does not mean they cannot live in the community. It simply means that treatment must be prioritized for them. Both doctors provided recommendations for Mr. Jackman’s treatment. Dr. Levin has provided an opinion on how treatment of Mr. Jackman’s various conditions (including Schizophrenia) “might” influence his risk of reoffending in the future.[^42] I have set out her proposals and the issues that might arise from them:
| Recommendation | Issue |
|---|---|
| Dr. Levin opines that Mr. Jackman has had a “relatively good” response to treatment once on a therapeutic dose of an antipsychotic.[^43] She states that Mr. Jackman has only been on a therapeutic dose of antipsychotic medication (800 mg/day of Quetiapine) since July 2019 and that that should continue. He needs consistent treatment to see if it works. Mr. Jackman has not been deemed refractory to treatment for his psychosis. As such, if he were experiencing some residual symptoms, he could undergo a trial of another antipsychotic medication. If that fails, there is an option of Clozapine which decreases violent behaviour in mental disorders. |
Despite the dose of Quetiapine and as of December 1, 2019 when Dr. Levin interviewed him, Mr. Jackman retains the belief that his children have been abused by members of the Jemetz family, although that belief has loosened. Further, Mr. Jackman’s addiction to crystal meth and his inability to keep appointments for therapy would jeopardize the benefits of any medication in the future. There are responsivity problems. Any therapy or medication he has received in the controlled setting of the Toronto South Detention Centre may be dissolved if he returns to substance abuse, particularly crystal meth. Although Mr. Jackman says that he will not resume using crystal meth, there is no guarantee he will not do so. Further, treatment can only be done with Mr. Jackman’s informed consent and cannot be legally imposed on him. He has not always been compliant with medications as an outpatient. Further, after presenting to an Alberta hospital where the staff concluded that he was suffering from a cannabis-induced psychotic disorder, it was recommended that he see a psychiatrist to follow up. It appears that this did not occur.[^44] Lastly, it appears that Mr. Jackman has refused treatment since he has been incarcerated in the Toronto South Detention Centre. Included in the records from the institution were forms entitled “Refusal of Treatment” that appear to have been executed by Mr. Jackman. One reason provided for refusing treatment was “playing cards, no time”. Another said that he was “watching TV and didn’t want to come”. |
| If properly diagnosed with ADHD, he could be pharmacologically medicated. That would address his irritability and aggression reducing his risk of re-offending. | Although Mr. Jackman may suffer from ADHD, it is the treatment of the Antisocial Personality Disorder and the continued existence of the delusion that pose the most significant risk. |
| Mr. Jackman’s subclinical PTSD could be addressed with pharmacological treatment. Psychotherapy-based treatments, such as prolonged exposure and cognitive processing therapy would be beneficial. | As I have said above, treatment of PTSD would be beneficial, but it is the psychosis and the Antisocial Personality Disorder that make treatment more difficult. |
| Abstinence from substance use is essential to reduce the risk of re-offending and maintaining a psychotic-free state. | Mr. Jackman has acknowledged an intent to remain abstinent from illegal substances. That said, he already participated in several different drug rehabilitation programs. Despite this, he has repeatedly relapsed. His past behaviour has shown that he has had difficulty remaining abstinent. Despite not having access to crystal meth and having been medicated at the Toronto South Detention Centre, Mr. Jackman has written letters (in 2016) that show he has the same views that drove him to repeatedly contact and threaten members of the Jemetz family. Although the delusions may have loosened, they continue. Further, Dr. Gray opines that, “Given an apparent personality trait of needing stimulation, it is highly likely that Mr. Jackman will relapse again into use of psychostimulants or other recreational drugs even with therapy, which will again elevate his risk of reoffence”. Dr. Gray testified that substance abuse causes a disinhibiting influence and can dissolve many of the concepts that Mr. Jackman might have learned in psychological therapy. That said, “[substance abuse] impairs your ability to access coping skills or whatever things in your memory from therapy would be helpful to prevent yourself from doing the sort of things that get you into trouble”. |
| Antisocial Personality Disorder and his risk related to this in association with psychopathy would remain unchanged despite any treatments proposed. However, antisocial behaviour tends to decrease in intensity and frequency with age. | Dr. Gray recognizes that Mr. Jackman’s risk of re-offence may be reduced with his advanced age (i.e., burnout). That said, the conduct giving rise to the convictions in this case do not depend on physical stamina. These offences were committed when Mr. Jackman was in his late 40’s. He traveled from Alberta to Toronto and but for the intervention of the Toronto Police Service, a violent offence could have been committed. He had threatened death, amongst other things. Because these offences did not require physical stamina, Mr. Jackman could commit similar offences in the future. Dr. Levin agrees. She reported that, “In terms of prognosis, the diagnosis of ASPD [Antisocial Personality Disorder] may pose some challenges in terms of compliance to rules in any structured setting. Its treatment is quite limited in its success rate”.[^45] |
[146] Dr. Gray proposed treatment recommendations, but he also identified problems with the proposals. I will summarize them here:
| Recommendation | Issue |
|---|---|
| No Contact: Mr. Jackman should be prevented from contacting members of the Jemetz family, including by voice messages, emails, etc. There should also be a geographical restriction imposed. | Even if Mr. Jackman were prevented geographically from having contact with the Jemetz family, he could do so over the Internet or the phone. Mr. Jackman has demonstrated a conduct of harassing behaviour for many years despite being the recipient of legal sanctions, including court orders and incarceration. He has not been deterred by such sanctions. |
| Relationships: Any new relationships should be monitored for signs of emerging abuse. | Mr. Jackman’s risk for re-offence is highest in relation to domestic partners (and in this case, Olena’s extended family). Dr. Gray does not rule out the possibility of physical violence in the future. Mr. Jackman’s dysfunctional anger has motivated his behaviour. The reporting of any new relationship is dependent upon Mr. Jackman’s self-report. In light of his non-compliance in the past, it is questionable as to whether Mr. Jackman would report his relationships (and follow the terms of his release). |
| Recreational Drugs: Mr. Jackman should be prohibited from the use of recreational drugs and he should participate in ongoing treatment to prevent relapses. He should be subject to random urine screens, etc. | I have dealt with the issue of the use of recreational drugs above. Abstinence is required but Mr. Jackman’s history shows that it is unlikely. |
| Anger Management: Mr. Jackman should participate in psychological and psychiatric treatment in the areas of anger management and cognitive behavioural therapy to address the false beliefs, etc. | The pattern of abuse has endured despite several rounds of anger management counseling. Mr. Jackman was able to tell Dr. Gray of elements of the lessons he had learned in anger management counseling. This suggests that he was able to absorb the concepts, but he seems unable to apply them to prevent further offences. Despite intervention by Dr. Patel and despite being on a relatively high dose of antipsychotic medication, Mr. Jackman continues to hold onto the beliefs that motivated his offences against the Jemetz family, even if they have loosened. Dr. Gray has commented that because Mr. Jackman has been diagnosed with Antisocial Personality Disorder, and especially with a high score on the psychopathy checklist, it may be very challenging for him to engage in therapy. Dr. Levin opined that Antisocial Personality Disorder may pose some challenges in terms of compliance to rules and that its treatment is quite limited in its success rate. Lastly, Dr. Levin testified that it is very difficult to determine the responsiveness of a person to treatment when released into the community. |
| Delusions: Mr. Jackman should receive treatment for the underlying delusional beliefs to reduce the intensity of his anger and feelings that his anger is justified. | Mr. Jackman’s score of 31 on the PCL-R is very high. Those offenders with a score of over 25 are less amenable to treatment because of a failure to accept responsibility for their actions, lack of empathy and a tendency towards boredom. Dr. Gray observed that “Mr. Jackman also has already gone through several different modalities of treatment in many different contexts and yet has continued in a similar general pattern of offending behaviour”. That said, the offending behaviour has not been physically violent over the last 10 years. Delusional Disorder is difficult to treat because it goes undetected for many years and the delusions take root. That affects an individual’s thinking. By the time the individual gets treatment, although they may not have new delusions, they may still have “that whole bank of memories of delusions that you have to uproot through therapy [for the individual] to realize that they’re not true”.[^46] This does not mean that they are not treatable, the treatment is simply more challenging.[^47] Dr. Gray finds that despite the existence of an “untried” line of therapy for Delusional Disorder (specific psychotherapy), the prospect of this therapy at reducing Mr. Jackman’s risk of repeated unwanted contact with the victims is poor. |
[147] Dr. Gray has observed that there is evidence of Mr. Jackman being unable to restrain his behaviour. He concluded that a legal restriction (i.e., a court order) to avoid this behaviour is “not enough for him to restrain his behaviour”. He opined that “the threat of legal sanction is not enough to overcome the urge to engage in this pattern of behaviour”. He further found that despite the “fact that some of the underlying factors that motivate the behaviour have been treated, it continues”.[^48]
[148] I have evaluated Mr. Jackman’s treatment options and the possibility that his risk could someday be managed in the community to an acceptable level by a determinate period of detention followed by an LTSO for 10 years. Put simply, there is no plan proposed for Mr. Jackman that would do so. In coming to this conclusion, I remind myself that the overriding purpose of the Dangerous and Long-Term Offender regime is the protection of the public.[^49]
The Fit Sentence
[149] In determining the fit sentence, having declared Mr. Jackman a Dangerous Offender, I must consider whether I am satisfied that there is a reasonable expectation of a lesser sentence than an indeterminate one (i.e., a determinate sentence or a minimum sentence of 2 years followed by an LTSO that does not exceed 10 years) being appropriate. Such a sentence will be appropriate if I am satisfied that it will protect the public against Mr. Jackman’s commission of murder or a serious personal injury offence. I am not so satisfied.
[150] Dr. Gray concluded that there are major challenges to any plan of supervision. He stated:
Even with these measures in place [described in his report and above], it is my opinion that Mr. Jackman likely will still breach conditions and contact his victims in the future if released from incarceration. I base this opinion on the longstanding nature of his behaviour towards his ex-wife, dating back 14 years despite being subject to legal sanctions as a consequence of his behaviour. He also continues to hold by the beliefs which motivated some of his behaviour in relation to the index offences regarding the safety of his children and his anger towards his ex-wife and her family. These beliefs are possibly amenable to modulation with successful treatment, but his responsivity and engagement with treatment would be a challenge given his high PCL-R score, among other factors.[^50] His pattern of violating terms of release in the past, including specifically regarding non-contact provisions against previous domestic partners, is also of great concern regarding his future risk. Finally, the ease at which he would be able to contact victims in the internet era is a factor making a similar reoffence more likely, even with Mr. Jackman’s advancing age.
[151] I agree with the opinion of Dr. Gray. I am not satisfied that there is a reasonable expectation that a lesser sentence (ie., a determinate sentence followed by an LTSO) will adequately protect the public against the commission of a serious personal injury offence. I accept that there is, theoretically, always reason to be hopeful for the future. However, based on the evidence before me, I am not satisfied that such hope is anything more than speculative. A mere hope of control is simply not enough.[^51] An indeterminate sentence is warranted because it will serve the purpose of protecting the public.[^52]
[152] For these reasons, I designate Mr. Jackman a Dangerous Offender and I sentence him to indeterminate detention on the five offences of criminal harassment.
[153] While the sentence is indeterminate, it need not be permanent. I urge the staff at the penitentiary to continue Mr. Jackman’s medication and enroll him in the appropriate programs so that there can be a meaningful application of s. 761 of the Criminal Code.[^53] Section 761 provides a review of the conditions, history and circumstances of Mr. Jackman for the purpose of determining whether he should be granted parole.
[154] Mr. Jackman’s sentence will be reflected as follows:
Counts 1-5, Criminal Harassment: Declared a Dangerous Offender and given an indeterminate sentence concurrent to each other;
Counts 6-15, Uttering Threats: 4 years, time served concurrent to each other and concurrent to Counts 16 and 17; and
Counts 16-17, Extortion: 6 years, time served.
[155] Mr. Jackman is also subject to the following ancillary orders:
a. DNA;
b. A section 109 order for life; and
c. An order pursuant to 743.21 of the Criminal Code which prohibits Mr. Jackman from communicating directly or indirectly with the members of the Jemetz family during the custodial period of his sentence. This order applies to those persons referred to in Appendix “C” with the exceptions provided.
Kelly J.
Released: December 19, 2019
Appendix “A”
R. v. Jackman
Ruling Re: Dangerous Offender Designation and Sentencing
Jemetz Family Tree
Appendix “B”
R. v. Jackman
Ruling Re: Dangerous Offender Designation and Sentencing
April 12, 2019 Google Plus Messages to Ms. Sophia Jemetz
[1] In November 2014, it appears that Mr. Jackman was in contact with Ms. Sophia Jemetz on Google Plus. The sender is identified as “Richard” and this person sent approximately 46 messages to Ms. Sophia Jemetz, Mr. Jackman’s niece. In those communications, the sender says, amongst other things, the following (emphasis added by me):
a. “… I’m your uncle and you are my kids cousin. I know who you aunt and uncles are. I sent you a message because your family. … I have seen pictures of you and haven’t seen you smile. I know your dad only he doesn’t realize it. So if you feel alone and that nobody will understand, I’m here. Hania, Myck, Olena, Alex. I know them. You always have an option, me, you’re not alone. This might seem unlikely and deceptive, you don’t know me, you have others opinions, dishonesty to get a perspective of me. Fuck that, I know their secrets. … Are you the banking type like your parents? If you are a business type, and if you are as honorable as me, I have some questions. …”
b. “You blocked me without knowing me. I’m reaching out to you because you’re my niece. My life is hard and painful so it took me time to realize. …”
c. “…I’m going to sometime in the future turn my attention towards Alex, Myk, Hania for allowing Olena to hurting my children with out even attempting the appearance of honor. … ”
d. “I’m attempting to get a guy I’ve known for 30 years, who’s father was a cop who arrested me many times, and his mother who yelled at me on the phone the only time time I talked to her, hid teenage daughter and him drop everything. come here and help me show a cop she is an idiot so I can blackmail some disgusting powerful people While attempting to get people with deep dark secrets to do my bidding with incentives, rather than pressure. When that comes to its natural level. I’m going to get Alex, Myk, Hania combo to donate to me an amount of money that Sarah and Alex feel is an appropriate amount.”
e. “If you feel that I am threatening your family or attempting to hurt you, I’m not. I intended for you to bring the documents and check to me, off you to participate to make sure your safe”.
f. “… 403-467-2723. Text call give to your mom if she wants to act. I’m not fooling about. I know what I’m doing. I’m trying to ensure your secure. If your family was so pure, how the fuck you think I’m going to pressure them into donating millions. So call or text but don’t hurt. Keep this between us if you feel it is honorable….”
g. “… I saw a picture of you that got stuck, only because it wasn’t complete. You where posing like a young vibrant woman but no joy, eagerness, hope, pleasure, even conceit, you know. How the fuck can a couple of successful well off bankers not raise a young woman who is able to express something pleasurable noticeable or judgment prone. You know look at the little bitch think she is so good so better than me her mother eats panda raw.”
h. “… Relax you’re safe with me. Enjoy a crazy Motherfucker who intends to mess with you family but will support you and be an obsessed retard yet takes care to give you a way to get help. Its why I got on touch with you. For a guy who likes porche it was weird when he married a woman who has talent rather than well bimboness. I would gladly marry your mother proudly, but she is a loud mouth yapper I know she would not phone the police when I tried to poison her. …”
i. “And be yourself, your only robbing the one who loves you for who you are and not what you do. A secure one knows. A person hiding proves. A retard texts a stranger who is his niece a billion times. Sorry 403-467-2723.”
Voicemails
a. The next contact to the Jemetz family discovered were voicemails left on the home phone belonging to Mr. Alexander and Ms. Alexandra Jemetz. The voicemails may be summarized as follows (emphasis added by me):
| Date | Time | Duration | Content |
|---|---|---|---|
| May 2, 2015 | 8:33 a.m. | 52 secs | “So, I’m going to kill Sarah Fitting, I’m going to kill Sophia, I’m going to kill Natalia Jemetz, Hania Wagner [sic], and even Josephine Jackman. That’s what I will be doing. You have been taking the kids and raping them in all four houses. I know what you’re doing. You’re pieces of shit. If you don’t get the cops to find me right now because I’ve threatened death to those kids, I will be in Toronto in three days and I will fucking kill you. Is that fucking clear? Stop raping my daughter right fucking now. Is that clear?” |
| May 3, 2015 | 10:19 p.m. | 2 mins, 59 secs | “…and if that Sophia’s making fun of me. She’s fucked. And if she’s trying to help with that picture (indiscernible) tell me who is spying … I don’t know what my phone number is (indiscernible) fucking try looking on Google hangouts and if you have any fucking problems (indiscernible) and tell that Sarah to get off her fucking cunt ass and see the writing on the wall, all right. The Catholic Church is going to bring something. I gave you her name 18, 19 months ago”. |
| May 4, 2015 | 12:06 a.m. | 2 mins, 59 secs | “Myk has been phoning Fyona’s foster home and getting Fyona raped and my other children raped by Peter …So here’s the story, I’m killing the Jemetzes – I’m starting with Alex or Sarah or Myk. I’m just stating a fact. I want my fucking daughter ‘cause I don’t know where she is …I want my kids. I want my half of all of the Jemetz – and the other half goes to my children. You are taking money from them – they’re fucking my daughter since she was eight. They’re fucking my daughter since she was alive. Now I am gonna fuck shit up – I would – them for money. I have had people out there and will cut your fucking heads off. … They’re there. One of them was hanging around Natalia’s place. She was – my daughter. I’m pushing – I keep forgetting – Jemetz’s phone number. She has your fucking address. They’re coming now. They are going to kill you, all right? There’s nothing you can do to stop them. … Now check your, check your whatchamacall, the Google thing. The Google thing, you hangouts, all right? Cause I’ll leave my phone number there. Just text me …” |
| May 4, 2015 | 3:36 a.m. | 2 mins, 59 secs | “Could you call Natalia and get my phone number? ... You guys about to get jet fucked and nobody is paying any attention to me. I want my kids. …You guys are in deep fucking shit. Myk and Sarah are fucked. … and it was that cocksucker Myk who did it (indiscernible) that raping her (indiscernible) and you fucking blow off. … there ain’t nothing that’s going to fucking save your life when they finally …” |
| May 4, 2015 | 3:54 a.m. | 2 mins, 59 secs | “Hi there. My phone number is 587-7-7-8677. … And you guys got a big picture of these kids, big smiles on their faces and all that shit – see Sophia there. She looks very pretty. … You guys fucked me up on drugs. I’ve been waiting and waiting and waiting, all right? Now I’m going to just fucking lie real hard and I – get some goddamn help I think – like Hania and Sarah and one of you two and I don’t care, at most one or two, all right? …. Fucking Alex is there ….” |
| May 4, 2015 | 6:00 a.m. | 2 mins, 12 secs | “…It’s your death, done. You know why? Because everything I’ve done in my life I’m going to blame on Sophia, you make sure you kill her hard. Because when she comes back to life, you’re going to be quite shocked. … I can’t remember what my goddamn phone number is. Ask Sophia and she’ll fucking phone me. … Whoever told them I was in Toronto and I hope it was you …” |
| May 4, 2015 | 7:01 a.m. | 2 mins, 59 secs | “… the big tall guy with the arm bands and the white thing through his ears was hired by Myk to kill Sophia. The other guy that Alex hired to kill Fyona is the guy that’s there. … So there second time I tried to help fucking Sophia I got fucked, all right? I tried Natalia’s number, they hung up on me”. … The people that had me protected are there protecting Olena. You guys are fucking with death, oh you guys are fucking with death. I want you to remember this you fucking (indiscernible), I’ve been fucking following this for four fucking years (indiscernible) and the best you can do is try to and accuse me of shit I didn’t do and you can’t even get my tattoo colours correct. …. So the least you can do is get your whole fucking family killed, remember that”. |
| May 4, 2015 | 7:34 a.m. | 2 mins, 59 secs | “… Go find Sophia right now. Fucking Myk hired that guy to kill her and he’s fucking insane…. First thing I’m going to do is shoot myself in the fucking head and come and kill you like my mother did to your faggot father …Now she really likes Kalynna. I hope you didn’t hurt Kalynna or Olena. Kill Olena. … Now get on the goddamn phone to fucking CPS and tell ‘em you know all about it. Those cops are okay. We got bygones be bygones and they can go down to America and spend life in jail for some fucking stupid crime that Myk and Alex Jemetz did and with Peter Wagner and Iwan Jemetz. …” |
| May 4, 2015 | 7:43 a.m. | 2 mins, 59 secs | “… Tell Sophia to get her fucking ass out here …” |
| May 4, 2015 | 9:31 a.m. | 22 secs | Several references are made to the Calgary police. |
| May 4, 2015 | 9:44 a.m. | 2 mins, 16 secs | “… I tell you I’ve been trying to kill you. …” |
| May 4, 2015 | 10:49 a.m. | 2 mins, 59 secs | “Hey there. That drugged, it’s your in-law there, brother in law, whatever, I think it was Peter or may Myk, ….But that’s the same kind of reaction that you had when we took it. Isn’t it Alexandra, right? … You have to phone the Calgary Police Service …You won’t pick up the phone ‘cause you’re a faggot, right? Sarah won’t pick up the phone ‘cause she’s a faggot. … “ |
| May 4, 2015 | 11:11 a.m. | 2 mins, 59 secs | “…I’ll fucking rip your spine out and I’ll rip the spine out and the cock. I never left because you’re fucking chicken shit. Have your fun and make the fucking phone call. All right? Give the phone to Sophia okay …” |
| May 4, 2015 | 11:34 a.m. | 2 mins, 59 secs | “… I phoned your mother a million times, ask you to fucking go over there, I called Sarah all right? Here’s the thing, nobody’s going over there. I’m a fucker. … Now what I want to know is Olena going to lie after all this is said and done and all the shit we’ve been through if she’s going to like (indiscernible). Tell Sophia she’s (indiscernible). Have her come on down. Why don’t you figure it out a day? You have the fucking address. …” |
| May 4, 2015 | 1:04 a.m. | 2 mins, 48 secs | “ … I’ve been phoning you for the past 12 hours …” |
| May 15, 2015 | 6:44 p.m. | “… call me … this is like my third attempt at this message. I keep running out of shit to say. Eva or Kalynna, I don’t care what she calls herself, where is she? Where’s Olena? … You guys should be helping me out there. You’re fucked. You’re fucked. You’re fucked ‘cause Peter fucking filmed him raping my daughter Kalynna. … And since you assholes aren’t returning my calls, I had to go buy a phone card, right? Listen up, I did too much meth, right? I spent all my fucking money and threw it out and shit like that. … I’m going crazy. I can’t keep doing meth because I keep having heart attacks. Right, so enough is enough. Right, 403-410-3594, right. Leave me a goddamn fucking message. Let me know if Myk and Hania’s kids are okay and Alex’s kids are okay. Right, let me know if Sophie’s okay, Sophia, because that’s who the fucking guy that either Peter and Myk hired to kill her. …” | |
| May 15, 2015 | 6:48 p.m. | “… Look I figured out how to send a message and then send another one. I’m going to do this all night, man. It’s not like the texting. The texting I do ‘cause I do meth. I sit there all stoned on fucking meth and fucking type 50 hours straight, right. I’ve tried narrowing it down to one word. Listen, the fact is I’ve put too many fucking messages out and the real stuff that you’re supposed to be picking out, you don’t pick out ‘cause you don’t read ‘em. I’m crazy and you don’t like me. … Now I’m fucking around ‘cause I’ve got to go to Toronto. … Dana Harken’s trying to get people to fucking hurt people, man. She’s caught. She’s caught because I fucking threatened her. I threatened her fucking husband and her kid. She did nothing. I’ve been in police custody four times since then …So find Gabriel, Jacob, Fyona, Zachariah and Eva, right? And however many fucking kids you got and however many kidsSarah’s got and however many kids Hania’s got. Get rid of Myk, Pete and Iwan. The house on Beresford is mine you fuckheads. Right, it will be because I’m suing you fuckheads, right. Somebody showed me a tape or a video or whatever they call it nowadays of Peter fuckhead raping my daughter Kalynna, right, and some fat fuck having a good old time, right?” |
Facebook Communications
Ms. Hania Wenger
b. Ms. Hania Wenger received Facebook posts from a sender by the name of “Jjonas Jackman”, “Richard Pa Jackman” and “Pappa-Allen Jackman”. They commenced in February 2011. Some of the content may be summarized as follows:
| Date | From | Content |
|---|---|---|
| February 28, 2012 at 1:38 a.m. | Jjonas Jackman | “God has a plan for Olena Sophie, seriously. And I am proud of her. Olena stopped using drugs, ate right, took folic, materna, on every pregnancy. Gave birth, especially Gabriel, breast fed our children, taught them how to walk and talk, kept them healthy, all while living with me. Tell her thank you. I know what she did and I got her motherfucking back. We are in this together. These are our children. Partners in all things, everytime. Equal, I will not call her demeaning names, touch her without her consent. At all. She is the fucking MOTHER of MY children. I LOVE her. Thank you, please. I LOVE you to Hania. Sorry I thought about screwing you. It was insulting to you and your sister. My apologies.” |
| February 29, 2015 at 5:00 a.m. | Jjonas Jackman | “… why you don’t tell me where you live but I found out through my secret cop source that you in fact live in either live at 293 or 294 beresford ave. He couldn’t remember the one that was prababa and what one was parents. … And just so you know this level of harassment, is acceptable, in this amount. ….” |
| March or April 2015 | Jjonas Jackman | “I WANT MY DAUGHTER FROM YOU CHILD RAPISTS. HANIA WEGNER IS A CHILD RAPIST<MYKOLA JEMETZ IS A CHILD RAPIST<ALEXANDER JEMETZ IS A CHILD RAPIST.” |
| May 2015 | Pappa Allan-Jackman | “And think if I might enjoy you sucking my cock, pushing it in your delicate moist sensitive tunnel. Plus I don’t like anal. At all.” |
| November 29, 2014 | Richard Pa Jackman | “Send me a picture of hanias ass, Peter s cock…. Pictures or Peter dies.” |
| March or April 2015 at 2:54 p.m. and 3:00 p.m. | Jjonas Jackman | “I’ll be in toronto by friday, I won’t Be Playing Well With Others. A jemetz is an others…I KNOW WHAT HAPPENS AFTER DEATH. Fear it all of you fear death, you will never see light again.” |
| March 1, 2015 at 8:38 p.m. | Jjonas Jackman | “You don’t like me very much, mostly because I’m a bit of an asshole. I haven’t actually hurt any of you. Mentally yes but physically never. So your dislike for me is “curable”. You know what I mean. I told Olena exactly what I was like. Get It? … How the Fuck You Goin To Be Mad At Me For Being Honest???????? I was changing Through Our Time Together, She Just Left Before I Was Finished!!!!! HELLO < HELP ME PLEASE. …” |
| May 3, 2015 | Pappa Allan-Jackman | “I Have Messaged Sarah, Alexander, Natalia. I knew I couldn’t remember who, Hania. Please go to Your Place Decide. I Have been sending messages for four years now. That how much effort to get you on board. 1-587-707-8677.” |
| May 22, 2015 at 1:13 p.m. | Pappa Allan-Jackman | “Hey baby I’ll be in town next week, wanna shack up? Can’t be any worse than what you got right now. Could be an eye opener. I’ll swing by when I’m here say hi. what time is good? 403-410-3594”. |
Mr. Alexander and Ms. Alexandra Jemetz
c. In November 2014, posts on Mr. Alexander and Ms. Alexandra Jemetz’ Facebook page were made. Ms. Sophia Jemetz is their daughter. They are sent from “Jjonas Jackman”, “Richard Pa Jackman” and “Pappa-Allen Jackman”. They may be summarized as follows:
| Date | From | Content |
|---|---|---|
| November 29, 2014 at 4:59 a.m. | Richard Pa Jackman | “… I wonder if you could encourage your wife to hire me, and recommend a guy I can talk to about his much of a fuckheaf you ard why. Let him enjoy the fact I’m blackmailing you. I could walk right in during their meeting make her He can come out at your expense, come with us to the dirt road slsp your wife around get your lovely daughter on her knees, get a load in her mouth, everything cool, until he is sitting around bragging, raping your wife, I was hired couldn’t get it up, him him him, I sucked them all off”. |
| November 29, 2014 at 5:06 a.m. | Richard Pa Jackman | “Take some naked pictures of your daughters tits and ass, come fast, I’m heavenly perverse and willing to send you pictures of Fyona, she is a slut trying to get a huge pussy. So she can be the sleazy one, like a poor idiot father, watching his daughter while your daughter is not, big surprise”. |
| November 30, 2014 at 8:17 p.m. | Richard Pa Jackman | “… Would you consider, lending your daughter a credit card, drive her to airport, have her rent a room for a month, buy me some clothes, talk to a couple of people with me, give me some orders but not money, I would better to send your wife out to make sure I don’t sell your daughters ass. Instead of giving it away like you would. It would be much easier to train your daughter, much like you trained olena. Only more sexier and less olena. … The kind of guy who loves To do illegal shit Its the try to get help from you fucking retards When $10,000 is easy enough to put on your credit card I’m not blackmailing you moron, your paying me to fuck off And not make fun of you in court So you see That’s why I need to borrow your daughter To keep me from spending the money, before I finished teacher her to give good head, and enjoy getting fucked Understand, if your into fucking your daughter not a problem Just send her out here, with a credit card To let me know that my big titted teenage daughter would gladly thank you but sucking you off She’s been practicing So if your past the offended stage and into ahh good Send her out here, if there older than 14 I’m good Send your oldest daughter out here to learn how to be sexy slut … I need a young lady needing some blow job lessons, while getting fuck by a few guys I need to show in good So Alex old buddy Help a guy out And give your daughter the adventure of learning to be a more discreet slut While fucking And sucking …” |
| December 1, 2014 at 2:08 p.m. | Richard Pa Jackman | “… But do you really want me to kidnap and rape your daughter? … If I said you must dress like a faggot, get on your knees suck all the cocks, the watch as they fucked your wife. Then give them head again, then watch as they gang fucked your daughter, if you agreed to that is it legally binding?” |
| May 2, 2014 at 3:41 a.m. | Pappa-Allan Jackman | “I will be there for them, help guide them, hire to suck off a couple of nephews, a son, watch daughter take cock, my daughters take cock, Sarah’s kids taking cock sucking cock and making money, Alex the male can fuck or suck I don’t care, but let’s face it, it is your families way of making love. So what I’m more of a old loose pussy guy who thinks incest is stupid … + Sophia Jemetz better not be making fun of my missing daughter …” |
| January 14, 2011 at 8:18 a.m. | Jjonas Jackman | “message me back and I’ll move to Toronto but only I will enjoy that”. |
| May 22, 2015 at 12:08 p.m. | Richard Pa Jackman | “How bout this, I’ll see you next week hit someone in the knee cap with hammer get truth, call the coops and they can ‘arrest’ me for hitting a child molester/pornographer on kneecap. Think that evidence is admissible? Idiots. I can’t wait to fuck you cocksuckers up. I’m sending four out there to watch bringing two with me. good luck cocksucking faggot pieces of shits.” |
Ms. Sarah Fitting
d. Again, similar themes are repeated in the Facebook posts received by Ms. Sarah Fitting:
| Date | From | Content |
|---|---|---|
| May 3, 2015 at 10:32 a.m. | Pappa Allan-Jackman | “… if I have total control of you sooner or later it becomes my penis in your privates. It makes no sense, why not make you do my laundry, you know, fold it and shit. What does is tell you to seduce my like this, the she would tell another to …” |
| May 3, 2015 at 10:45 a.m. | Pappa Allan-Jackman | “… we but Myk ‘raping’ Sarah Fitting, we freak out beat and face fuck but fuck, you explain your actually a 29 year old woman, then the 3 get head and torture Myk to death. …. I for my part would have no problem whipping Ky “Brother in Law to death”, cause we all have to have turn as Myk, you don’t need much but a ten your old Myk or Me and a strap on dildo …” |
| May 3, 2015 at 8:22 p.m. | Pappa-Allan Jackmn | “Hey Sarah is it true that you weird sex stuff, cause so do I, if you don’t we could call the lessons ‘blackmailing’ … So if the child murderer is there … hopefully sliding his cock slowly in you. And I watch and action let me know when you come and hand signal Bam Blunt force trauma …So she found out went to Toronto. … Those ladies aren’t killing anyone till I get there. And all of you will die. Your kids will live … Me, simply I don’t care, neither do you You be dead And alone.” |
| May 4, 2015 at 5:22 p.m. | Pappa Allan-Jackman | “And you call yourself a slut? Must be nice to say no. By the can I have your house? And can I mean what is your address and adress I mean you. Are. Fucked Sophia Jemetz get on it.” |
| May 5, 2015 at 9:17 a.m. | Pappa Allan-Jackman | “Sorry for being right. Please tell Myk I will kill you and his kids should he touch one of my children again. This is not a threat this is clairvoyant.” |
| May 5, 2015 at 10:06 a.m. | Pappa Allan-Jackman | “If you wish to make a complaint to police may I suggest the Orangeville Police department. Give them my number. All this bullshit led the cops who are looking for that ‘book’ to stop raping my kids and out to Toronto, to the Jemetz clan.” |
| May 25, 2015 at 12:09 p.m. | Pappa Allan-Jackman | “Hey fuckhead I see I have to come there. So next week depending on how many times someone tries to murder me. …So, I have been laying low. So Next Week. … If it\t needs to be someone’s suicide. O.k. By the way, 2, Two, Both, Beresford Ave. Houses are Mine. Plus $10,000,000.00 And And knock off the insanity thing. 10 million both houses. I need a banker, I’ll spend the 10 million on hookers and drugs.” |
| May 30, 2015 at 5:37 a.m. | Pappa Allan-Jackman | “… Give me the money. It saves me mooching it and this retard time. … Fuck heads I didn’t come all this way for the ride Pay me.” |
| May 30, 2015 at 7:28 a.m. | Pappa Allan- Jackman | “Hiya Stupid. I’m waiting outside Canadian Tire. Now I’m waiting to purchase a hammer/hatchet, it begs the question, should I?” |
| May 30, 2015 at 7:37 a.m. | Pappa Allan-Jackman | “Good lord do you see the bullshit traveling I got to do. ASShole …Quit fucking about I know 3 houses yours I find bashing someone’s knee cap … I’m mean you soon to be hospitalized idiot where is my daughter? … Make it happen or the cunts come calling They won’t wait to be asked in and no adults will live none Now stop that shit Make it happen Happen Please Pretty please …” |
| May 30, 2015 at 8:21 a.m. | Pappa Allan-Jackman | “Fucking moron how the Fuck I’m going walk around with a hatchet. Fuck you. Where do I gotta go furst First If you please”. |
Mr. Mykola Jemetz
e. There are approximately 16 posts from “Pappa Allan-Jackman” to the Facebook page of Mr. Mykola Jemetz which were provided to the Court. They commence in March or April 2015. In the posts to Mr. Mykola Jemetz, the sender alleges that he (Mykola), Ms. Olena Jemetz, Mr. Alexander Jemetz and Ms. Hania Wenger are child rapists. He says that he will see Mr. Mykola Jemetz when he gets to Toronto. The sender advises that he wants all the property. He provides a phone number (1-587-707-8677) and asks him to give it to “Sophia”. This is the same number from which the voicemails were left. The sender asks Mr. Mykola Jemetz to send photos of Sophia’s “tits and ass”.
f. On May 5, 2015 “Pappa Allan-Jackman” posted a note on Mr. Mykola Jemetz’ Facebook page as follows:
Hey sweetie, your wife and children have been told, touch one of my kids again I kill them.
You nothing, go about your life.
Imagine the worst sight you can. That will be called beauty, I will be called echo, your children will be called liars, your line will cease, you will remember this moment and cry, your ignorance is not valid, I told God you know.
g. The sender suggests that Mr. Mykola Jemetz is going to “be our personal blow job machine”.
Appendix “C”
R. v. Jackman
Ruling Re: Dangerous Offender Designation and Sentencing
non-communication order
pursuant to s. 743.21 of the criminal code
Natalia Jemetz
Iwan Jemetz
Olena Jemetz
All of the following people and any member of their families:
Alexander Jemetz
Alexandra Jemetz
Sophia Jemetz
Sarah Fitting
Mykola Jemetz
Hania Wenger
Peter Wenger
And no contact with Kalynna (Eva Josephine) Jackman, except with her prior written revocable consent obtained through counsel to be filed with Detective Robert Gris, Badge #8205 of 22 Division, Toronto Police Service.
COURT FILE: CR/17/50000175/0000
DATE: 20191219
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
RICHARD JACKMAN
Applicant
RULING RE:
Dangerous Offender Designation and Sentencing
Kelly J.
Released: December 19, 2019
[^1]: I mean no disrespect to members of the Jemetz family by referring to them by their first name on occasion. It is done in these reasons for simplicity.
[^2]: There are no charges relating to Mr. Jackman’s former spouse, Ms. Olena Jemetz.
[^3]: MD FRCPC LL.B.
[^4]: A very brief report of Dr. Gojer was provided to Mr. Jackman’s counsel at the time, Ms. Iryna Revutsky. It was not a fulsome report.
[^5]: MBBS DPM MRCPPsych FRCPC FRCPsych JD
[^6]: MD, FRCPC
[^7]: R.S.C., 1985, c. C-46
[^8]: See: R. v. Ricciardi, 2019 ONSC 6607 at para. 55
[^9]: 2013 ONCA 467 at para. 42
[^10]: I am aware that some of the content of the Victim Impact Statements contained criticisms of Mr. Jackman, assertions of fact and recommendations about punishment. I have not considered such content in coming to my conclusion about the designation or the appropriate sentence. (See: R. v. Berner, 2013 BCCA 188 at para. 16.)
[^11]: 2014 BCCA 174 at para. 53
[^12]: See: R. v. Armstrong, [2014] B.C.J. No. 862 (C.A.) at para. 53
[^13]: R. v. Lyons, 1987 CanLII 25 (SCC), [1987] S.C.J. No. 62 and R. v. Dow, 1999 BCCA 177, [1999] B.C.J. No. 569 (C.A.)
[^14]: 2011 ONCA 840
[^15]: (1994), 1994 CanLII 9717 (NL CA), 115 Nfld. & P.E.I.R. 197
[^16]: At the completion of the proceeding, Counsel for Mr. Jackman brought the case of R. v. Williams [2018] O.J. No. 2481 to the court’s attention. He suggested that the court should be cautious about relying on hearsay. That said, the court was not directed to any specific concerns during the entirety of these proceedings. There was no submission, at any time, as to whether any document was unreliable and there was no dispute raised by the factual content in them. I have relied on credible and trustworthy evidence in reaching my conclusion.
[^17]: See: R. v. George, 1998 CanLII 5691 (BC CA), [1998] B.C.J. No. 1505 (C.A.) at para. 23 and R. v. Bunn, 2012 SKQB 397, [2012] S.J. No. 637 (Q.B.)
[^18]: See: R.F.L., 2011 ONSC 1900, 2011 O.J. No. 3230 (S.C.J.) at para. 350
[^19]: R. v. Gracie, 2019 ONCA 658, [2019] O.J. No. 4244 at para. 32
[^20]: See: R. v. Szostak, 2014 ONCA 15
[^21]: R. v. Boutilier, 2017 SCC 64 at paras. 57, 69-70
[^22]: See: R. v. F.E.D., 2007 ONCA 246, [2007] O.J. No. 1278 (C.A.) at paras. 44-45; para. 50, leave to appeal to S.C.C. refused, [2007] S.C.C.A. No. 56; and R. v. McCallum, 2005 CanLII 8674 (ON CA), [2005] O.J. No. 1178 (C.A.) at para. 47, leave to appeal to the S.C.C. refused, [2006] S.C.C.A. No. 145
[^23]: 2010 ONCA 291, [2010] O.J. No. 1577 (C.A.)
[^24]: Ibid, at paras. 80-81
[^25]: See: R. v. Solano, 2014 ONCA 185, [2014] O.J. No. 1118 (C.A.)
[^26]: See: Report of Dr. Gray, dated July 19, 2018 at pages 6 and 7
[^27]: Dr. Levin described that “rule out” means that there are other diagnoses available that he has not been able to rule out.
[^28]: For example, at the time Mr. Jackman presented at the Rockyview General Hospital advising of his messages from God. The staff concluded that he “seemed rather articulate in his attempt to provide what appeared to be a linear goal-directed account. He answered questions with clarity, and he showed no evidence to support a thought disorder. He seemed rather convincing in his attempt to portray himself as being “delusional”.
[^29]: Transcript of Dr. Gray from the Dangerous Offender Application dated December 3, 2019 at p. 35.
[^30]: Transcript of Dr. Gray from the Dangerous Offender Application dated December 3, 2019 at p. 46.
[^31]: Dr. Gray testified that Mr. Jackman’s risk of reoffence includes contact with the Jemetz family. The risk to the community in general would be lower.
[^32]: Transcript of Dr. Gray from the Dangerous Offender Application dated December 3, 2019 at p. 104.
[^33]: Transcript of Dr. Gray from the Dangerous Offender Application dated December 3, 2019 at p. 104.
[^34]: Transcript of Dr. Gray from the Dangerous Offender Application dated December 3, 2019 at p. 116.
[^35]: Transcript of Dr. Gray from the Dangerous Offender Application dated December 3, 2019 at p. 105-106.
[^36]: Transcript of Dr. Gray from the Dangerous Offender Application dated December 3, 2019 at p. 107.
[^37]: Transcript of Dr. Gray from the Dangerous Offender Application dated December 3, 2019 at p. 113.
[^38]: When Dr. Gray was asked about remission, Dr. Levin had not yet testified. When she did, she said that Although Dr. Levin testified that Mr. Jackman is no longer consumed by his delusions (i.e. not sending letters and talking about it all the time) it would be more cautious to say that he may have some residual symptoms as opposed to remission which would be a complete absence of symptoms
[^39]: Transcript of Dr. Gray from the Dangerous Offender Application dated December 3, 2019 at p. 64.
[^40]: R. v. Currie, 1997 CanLII 347 (SCC), [1997] 2 S.C.R. 260 at para.24
[^41]: Transcript of Dr. Gray from the Dangerous Offender Application dated December 3, 2019 at p. 133.
[^42]: Report of Dr. Levin, p. 2.
[^43]: Report of Dr. Levin, p. 9
[^44]: Report of Dr. Levin, p. 6.
[^45]: Report of Dr. Levin, p. 3.
[^46]: Transcript of Dr. Gray from the Dangerous Offender Application dated December 3, 2019 at p. 50-51.
[^47]: Transcript of Dr. Gray from the Dangerous Offender Application dated December 3, 2019 at p. 89.
[^48]: Transcript of Dr. Gray from the Dangerous Offender Application dated December 3, 2019 at p. 48.
[^49]: R. v. Little (2007), 2007 ONCA 548, 225 C.C.C. (3d) 20 at para. 70
[^50]: Dr. Gray has concluded that Mr. Jackman’s risk of reoffence is “very high”. Mr. Jackman’s score on the VRAG-R shows that 60% of offenders similar to Mr. Jackman reoffend with a violent offence within 5 years and 82% reoffended with a violent offence within 15 years. The high score on the PCL-R is further evidence of risk of re-offence and suggests that interventions are less likely to be successful than for someone with a lower score.
[^51]: R. v. Gracie, supra, at para. 41
[^52]: R. v. Johnson, 2003 SCC at para. 20
[^53]: Section 761 of the Criminal Code provides as follows: “…. where a person is in custody under a sentence of detention in a penitentiary for an indeterminate period, the Parole Board of Canada shall, as soon as possible after the expiration of seven years from the day on which that person was taken into custody and not later than every two years after the previous review, review the condition, history and circumstances of that person for the purpose of determining whether he or she should be granted parole under Part II of the Corrections and Conditional Release Act and, if so, on what conditions”.