Introduction

[1] On August 13, 2017, Codie Caissie walked into a convenience store while carrying a knife. He approached the lone female employee at the counter and demanded that she give him money. The woman ran out of the store. Mr. Caissie jumped over the counter. After unsuccessfully trying to open the cash register, Mr. Caissie grabbed some cigarettes and fled. He was arrested about a month later.

[2] After a trial, I found Mr. Caissie guilty of one count of robbery contrary to s. 344(1)(b) of the Criminal Code.

[3] Following the finding of guilt, the Crown brought a dangerous offender application. At the hearing, I heard from three witnesses who testified about the treatment and counselling available to offenders serving provincial and federal sentences, as well as the treatment, monitoring and supervision provided to offenders under long-term supervision orders. I also heard from Dr. Zohar Waisman, who conducted a psychiatric and risk assessment of Mr. Caissie. Voluminous materials were filed on consent, including Correctional Service of Canada records, Ministry of Correctional Services records, transcripts of prior court proceedings and prior psychiatric assessments of Mr. Caissie.

[4] While at the outset of the dangerous offender proceedings there were numerous issues in dispute, by the end of the hearing the issues had narrowed considerably.

[5] Both sides now agree that Mr. Caissie should be designated a dangerous offender pursuant to s. 753 of the Criminal Code.

[6] Both sides agree that while an indeterminate sentence is not required, a conventional sentence is insufficient to reduce the public threat posed by Mr. Caissie to an acceptable level.

[7] As a result, both the Crown and the defence jointly submit that Mr. Caissie should receive a fixed-term sentence, followed by a 10-year long-term supervision order. Such a sentence, both sides say, will adequately protect the public against the commission by Mr. Caissie of murder or a serious personal injury offence.

[8] The Crown and the defence, however, disagree over the appropriate length of the fixed portion of Mr. Caissie’s sentence.

[9] The Crown urges me to impose a further five-year sentence, on top of Mr. Caissie’s pre-sentence custody. The defence argues that this sentence is excessive and urges me to impose a further sentence of two years on top of Mr. Caissie’s pre-sentence custody.

[10] Both sides take somewhat different positions regarding how the pre-sentence custody should be calculated in Mr. Caissie’s matter. That said, both agree that the pre-sentence custody is not a significant issue in this case; the real focus should be on ensuring the remaining sentence served by Mr. Caissie will give him the time required to undergo the treatment and counselling he needs to reduce to an acceptable level any potential risk he may pose to the life or safety of others.

[11] For the reasons set out below, I have determined that a further sentence of three years, followed by a 10-year long-term supervision order is the appropriate sentence in this matter. I have further determined that Mr. Caissie’s pre-sentence custody should be calculated to be the equivalent of four years. As a result, Mr. Caissie’s fixed sentence after taking into consideration pre-sentence custody is effectively seven years.

[12] I will first briefly address the legal framework for dangerous offender applications. I will then address the matters not in dispute. Finally, I will turn to the two issues that are still in dispute. First, what credit should Mr. Caissie receive for his pre-sentence custody? Second, what further fixed-term sentence is appropriate for Mr. Caissie?

The Legal Framework for Dangerous Offender Applications

[13] The primary purpose of the dangerous offender proceedings provisions is the protection of the public: R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, at paras. 26-27; R. v. Jones, 1994 CanLII 85 (SCC), [1994], 2 S.C.R. 229, at paras. 124-125; R. v. Johnson, 2003 SCC 46, at paras. 19, 23, 29.

[14] Dangerous offender proceedings involve a two-stage process: 1) the designation stage, and 2) the penalty stage.

[15] At the designation stage, the court must determine whether the evidence adduced at the hearing satisfies the requirements of s. 753(1) of the Criminal Code for the offender to be designated a dangerous offender: R. v. Boutilier, 2017 SCC 64, at para. 14.

[16] Where, as in Mr. Caissie’s case, the Crown seeks to obtain a designation of dangerousness stemming from the offender’s violent behaviour, the Crown must prove two elements beyond a reasonable doubt.

[17] First, the Crown must prove that the offence for which the offender has been convicted (the predicate offence) is a “serious personal injury” offence as defined in s. 752 of the Criminal Code.

[18] Second, the Crown must establish that the offender poses a threat to the life, safety or physical or mental well-being of other persons based on any of the three following patterns of conduct:

(i) a pattern of repetitive behaviour by the offender, of which the offence for which they have been convicted forms a part, showing a failure to restrain their 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 their behaviour,

(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which they have 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 their behaviour, or

(iii) any behaviour by the offender, associated with the offence for which they have been convicted, that is of such a brutal nature as to compel the conclusion that the offender's behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint.

[19] The assessment of the threat posed is prospective and must take into consideration future treatment prospects. A finding of dangerousness requires the Crown to “demonstrate, beyond a reasonable doubt, a high likelihood of harmful recidivism and the intractability of the violent pattern of conduct”: Boutilier, at para. 46.

[20] If the Crown establishes beyond a reasonable doubt that the predicate offence is a serious personal injury offence, and that the offender poses a threat to the lives or safety of others based on any of the three above patterns of conduct, then the offender must be designated a dangerous offender. The court has no discretion. The proceeding then moves to the penalty stage.

[21] Section 753(4) of the Criminal Code lists the three sentencing dispositions open to the sentencing judge at the penalty stage:

(a) impose a sentence of detention in a penitentiary for an indeterminate period;

(b) impose a sentence of a term of imprisonment of at least two years for the predicate offence, followed by a period of long-term supervision of not more than 10 years; or

[22] Section 753(4.1) provides that the sentencing judge “shall” impose an indeterminate sentence, unless “there is a reasonable expectation” that either the “lesser measure” of a conventional fixed-term sentence or a fixed-term sentence of at least two years followed by a long-term supervision order, “will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.”

[23] The sentencing judge must first “exhaust” the less coercive sentencing options set out in s. 753(4)(b) and (c) before imposing an indeterminate sentence: R. v. Spilman, 2018 ONCA 551, at para. 30; Boutilier, at para. 69. That is, the sentencing judge must first consider whether a conventional sentence would adequately protect the public from the risk of dangerous recidivism. If not, then the sentencing judge must next consider whether a fixed-term sentence of at least two years, followed by a long-term supervision order would address this risk of dangerous recidivism. Finally, if not, then the judge must impose an indeterminate sentence. The sentencing judge must impose the “least intrusive sentence” required to achieve the primary purpose of the dangerous offender scheme – the protection of society from the risk presented by violent offenders at risk of reoffending: Boutilier, at para. 60.

[24] Dangerous offender proceedings are sentencing proceedings: R. v. Steele, 2014 SCC 61, at para. 40; Boutilier, at para. 53. Thus, although the primary purpose of a dangerous offender proceeding is the protection of the public, the judge in such a proceeding must still apply the sentencing principles and mandatory guidelines set out in ss. 718 to 718.2 of the Criminal Code: Johnson, at para. 23; Boutilier, at para. 53. While in a dangerous offender proceeding factors such as the degree of responsibility of the offender and the gravity of the offence may play a lesser role in determining sentence, these considerations cannot be ignored: Spilman, at para. 53. A fixed-term sentence cannot be entirely disconnected from the circumstances giving rise to the sentencing proceeding: Spilman, at para. 53.

[25] That said, the fixed-term sentence imposed in the dangerous offender context may be higher than it would be otherwise, if additional time is required so that the offender can take the necessary treatment to ensure that any potential risk has been adequately addressed: Spilman, at para. 43. Any sentence imposed should be responsive to the specific evidence adduced at the hearing concerning the length of time in which the offender may be expected to complete the programming that is said to be necessary to protect the public: Spilman, at para. 54.

Issues not in Dispute

[26] As noted at the outset of these reasons, there are several issues that are not in dispute between the parties. I will briefly address the areas where both sides agree and reference the evidence adduced at the hearing that in my view supports the positions jointly taken by counsel in this matter.

Mr. Caissie committed a serious personal injury offence

[27] There is no dispute that the robbery committed by Mr. Caissie is a serious personal injury offence pursuant to s. 752 of the Criminal Code: it is an indictable offence, punishable by more than 10 years, which involves the “use or attempted use of violence” against another person. As explained by the Supreme Court of Canada in Steele, at para. 58, the term "use or attempted use of violence" encompasses acts in which a person intentionally causes, attempts to cause or threatens to cause harm, rather than simply acts involving the application of physical force. Mr. Caissie demanded money from the victim while holding a knife. As was clear from the victim impact statement, the offence caused significant psychological harm to the victim. There is no doubt that the predicate offence in this case was a serious personal injury offence.

Mr. Caissie poses a future threat to the life, safety or physical or mental well-being of other persons for the pattern of violence identified s. 753(1)(a)(i)

[28] There is also no dispute that Mr. Caissie poses a future threat to the life, safety or physical or mental well-being of other persons for the pattern of violence identified s. 753(1)(a)(i). That is, both sides agree that the evidence shows that Mr. Caissie has engaged in a pattern of repetitive behaviour, of which the predicate robbery forms a part, showing a failure to restrain his 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 behaviour.

[29] I do not intend to set out in full the details of Mr. Caissie’s criminal background in these reasons. His criminal record is set out at Appendix “A”.

[30] Suffice to say that Mr. Caissie has committed a total of 15 robberies, including the predicate offence. Each robbery has involved a knife or other bladed weapon.

[31] Mr. Caissie committed his first robbery in April 2007 when he was 17 years old. In June 2010, Mr. Caissie pled guilty to seven robberies (as well as admitting to the facts of his first robbery and the facts of six other robberies). He committed eleven of the robberies while he was on probation. Mr. Caissie committed three of these robberies seven days after he was released on a strict house arrest bail in relation to robberies. Mr. Caissie received a global sentence of four years and six months.

[32] While serving his federal sentence, Mr. Caissie amassed further convictions for assault with a weapon, aggravated assault of a peace officer and assault of a peace officer. He received consecutive sentences for each offence, which brought his overall global sentence to seven years and two months. Because Mr. Caissie engaged in numerous other misconducts while incarcerated, he was held until to his warrant expiry date and released on a s. 810.2 bail, which Mr. Caissie breached only four days later by committing the predicate robbery.

[33] Mr. Caissie’s criminal background clearly shows that he has engaged in a pattern of repetitive behaviour, of which the predicate robbery forms a part, showing a failure to restrain his behaviour.

[34] The evidence also shows that in the future, there is a likelihood of Mr. Caissie causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure to restrain his behaviour.

[35] Dr. Waisman testified before me and was qualified as an expert in risk assessment and risk management in the community. Dr. Waisman conducted a psychiatric and risk assessment of Mr. Caissie. His assessment report was filed pursuant to s. 752.1(2) of the Criminal Code as Exhibit 4 on this hearing.

[36] I will not outline his evidence in detail in these reasons. But in brief, Dr. Waisman diagnosed Mr. Caissie as having a severe and long-standing substance use disorder, which was in remission while in custody because he is in a controlled setting. This disorder contributed to many of the offences committed by Mr. Caissie; indeed, his motivation for the predicate offence was to get money to buy fentanyl. While Dr. Waisman said that Mr. Caissie has been taking steps in pre-sentence custody to address his disorder, such as taking Suboxone, Mr. Caissie is only in the “early stages of contemplation” regarding his recovery.

[37] Mr. Caissie requires significant treatment and counselling to address his disorder. Dr. Waisman testified that Mr. Caissie may have challenges getting the treatment he needs, as he has a history of acting out while in custody. When he does act out violently, he is sent to segregation. That then interferes with his ability to get treatment.

[38] Dr. Waisman also diagnosed Mr. Caissie with anti-social personality disorder (ASPD). His condition is quite severe. According to Dr. Waisman ASPD cannot be “treated” but needs to be “managed”. Those who suffer from this disorder require constant reevaluation and reassessment. To successfully manage ASPD the patient must be “extremely dedicated and committed” to programming.

[39] Dr. Waisman also diagnosed Mr. Caissie as having borderline personality traits. Dr. Waisman testified that these traits include issues with abandonment, instability in personal relationships, impulsivity, suicidal behavior and mood instability. Dr. Waisman said that there is no cure for this disorder, although there is some medication available to treat the symptoms. The disorder may be helped or managed through therapy such as Dialectical Behavioural Therapy, but this therapy is not currently offered to male offenders in custody.

[40] Dr. Waisman testified that Mr. Caissie is currently at high risk/above average risk for violent recidivism compared with other previously violent offenders.

[41] In my view, the evidence of Dr. Waisman, along with an examination of Mr. Caissie’s past, establishes beyond a reasonable doubt that in the future Mr. Caissie is likely to cause death, injury or psychological harm to others through a continued failure to restrain his behaviour.

Mr. Caissie poses a future threat to the life, safety or physical or mental well-being of other persons for the pattern of violence identified in s. 753(1)(a)(ii)

[42] There is also no dispute that Mr. Caissie poses a future threat to the life, safety or physical or mental well-being of other persons for the pattern of violence identified in s. 753(1)(a)(ii). That is, the parties agree that there is evidence of a pattern of persistent aggressive behaviour by Mr. Caissie, of which the predicate robbery offence is a part, showing a substantial degree of indifference on Mr. Caissie’s part respecting the reasonably foreseeable consequences to other persons of his behaviour.

[43] Persistent behaviour is behaviour that continues in the face of opposition or interference. Mr. Caissie committed robberies while on probation. He committed robberies while on house arrest bail. He committed the predicate robbery offence four days after his release on a s. 810.2 bail. While in custody serving a lengthy federal sentence, Mr. Caissie has acted out, at times violently. He stabbed a program director with a fork. He slashed a guard in the face with a shank. He threatened to stab or slash guards. He was found to have shanks 16 times. Even during his dangerous offender hearing, a hearing of such importance to his future, Mr. Caissie got into a physical altercation with court security officers in the courthouse cells, spitting on some officers and breaking his handcuffs.[^1]

[44] Looking at Mr. Caissie’s past, there is no doubt that he has shown a pattern of persistent aggressive behaviour that shows a substantial degree of indifference on his part respecting the consequences to others. And, considering both Dr. Waisman’s evidence about Mr. Caissie’s future risk and Mr. Caissie’s past, I am satisfied beyond a reasonable doubt that he poses a future threat. Even without expert evidence, looking at Mr. Caissie’s past behaviour, “the prospect of future violence is sufficiently obvious that it can be discerned by a lay person”: R. v. McLaughlin, 2014 ONSC 6537, at para.137.

[45] I turn now to the issue of whether there is a reasonable expectation that the risk posed by Mr. Caissie can be managed in the community.

There is a reasonable expectation that the risk posed by Mr. Caissie can be managed in the community by a fixed- term sentence of at least two years, followed by a long-term supervision order

[46] There is no dispute that neither an indeterminate sentence nor a conventional fixed-term sentence is warranted in this case. Rather, both sides urge me to impose a fixed-term sentence of at least two years followed by a long-term supervision order, as there is a reasonable expectation that such a sentence will adequately manage the risk posed by Mr. Caissie in the community and protect the public against the commission by Mr. Caissie of murder or a serious personal injury offence.

[47] Cathy Phillips, from Correctional Service of Canada, testified about the treatment offered to inmates while serving time in the federal penitentiary. After the initial intake, offenders take the primer course that involves 10 sessions. Then offenders can take the core program, which is the Integrated Correctional Program Model. This program is skills-based and targets various risk factors, including substance abuse and anger management. The high intensity stream involves 91 sessions that are two to two and half hours long in a group setting. This is followed by the maintenance program. Ms. Phillips also testified about the intensive supervision and monitoring in place for offenders in the community with long-term supervision orders.

[48] Dr. Waisman testified that the programming available in the federal system would appropriately address Mr. Caissie’s treatment needs. He did note, however, that Mr. Caissie has a learning disability and his treatment and counselling should be adapted where possible to account for this disability. Dr. Waisman said that while Mr. Caissie may have taken some similar programming in his last federal sentence, there would be a benefit to Mr. Caissie in retaking the programing in order to reinforce the concepts taught. This is particularly so as there is no indication that any programming previously provided to Mr. Caissie took his learning disability into consideration.

[49] Moreover, even though it is clear that Mr. Caissie has a severe substance abuse disorder that is related to his criminality, Mr. Caissie has never had treatment for this disorder. Dr. Waisman testified that Mr. Caissie was beginning to take very small steps to address his disorder, but he needs intensive treatment. The Integrated Correctional Program would address those needs.

[50] Mr. Caissie has never engaged in Dialectical Behavioural Therapy, but this type of therapy may be very useful for him. While not currently offered to male inmates serving a federal sentence, this type of therapy would be available to Mr. Caissie under a long-term supervision order.

[51] Dr. Waisman testified that while he was not “optimistic” that Mr. Caissie’s risk could be managed, he was also not “pessimistic”. He was not optimistic, because if Mr. Caissie engages in institutional misconduct, as he has historically, then he will have restricted access to the programing he needs. But there is also some hope that Mr. Caissie has gained insight and that he is motivated to take the treatment he needs.

[52] If Mr. Caissie is able to behave so that he can have access to programming, then Dr. Waisman is not pessimistic about whether Mr. Caissie’s risk can be managed. The treatment scheme offered to Mr. Caissie is appropriate to address the risk he poses, such that there would be a reasonable expectation that he could be managed in the community. Once in the community, the long-term supervision order, which, as explained by Ms. Phillips, would contain strict conditions relating to residence, curfews, abstention from alcohol and drugs, counselling, treatment and programming and electronic monitoring among others, would serve to reduce any risk posed to the public by Mr. Caissie.

[53] Offenders under long-term supervision orders are closely monitored, have frequent contact with parole officers and are subject to random urinalysis and breathalyzer tests. Terms of the order are strictly enforced; breaches are dealt with swiftly. Ms. Phillips explained, for example, that if Mr. Caissie were even 10 minutes late for his curfew, he would face suspension of the order and potentially a charge of breaching his long-term supervision order. Even without a breach, if there were factors to suggest that Mr. Caissie’s risk had become elevated, his long-term supervision order could be suspended.

[54] The evidence clearly supports that there is a reasonable expectation that the risk posed by Mr. Caissie can be managed in the community, with a fixed-term sentence, during which he can receive the treatment and counselling he needs, followed by a 10-year long-term supervision order, during which he can continue any necessary treatment and reintegrate into the community, while being strictly monitored.

[55] I turn now to the two issues that are in dispute. First, what credit should Mr. Cassie receive for his pre-sentence custody? Second, what is the appropriate fixed-term sentence for Mr. Caissie?

Issues in Dispute

What credit should Mr. Caissie receive for his pre-sentence custody?

[56] Mr. Caissie was arrested for this offence on September 6, 2017. As of today’s date, April 28, 2020, that means he has been in custody for 966 days (two years, seven months and 23 days). On a 1:1.5 basis, that would be the equivalent of 1449 days (just under four years).

[57] As noted above, both sides agree that how the pre-sentence custody is calculated is not a significant issue, and that the key issue is how much further time in custody is required to ensure that Mr. Caissie takes the treatment he needs to reduce any risk he poses to the public to an acceptable level. That said, the Crown and defence take somewhat different positions regarding the pre-sentence custody.

[58] The Crown argues that Mr. Caissie should receive little to no enhanced credit for the time spent in pre-sentence custody. She argues that Mr. Caissie’s history of institutional misconducts makes it unlikely that he would be a candidate for early release and thus there is no reason to give him 1:1.5 credit. Mr. Caissie should receive, at the most, credit for three years.

[59] The defence counters that with the exception of an incident at the courthouse during these proceedings, Mr. Caissie has demonstrated good behaviour during his time in pre-sentence custody. He is motivated to engage in treatment and has attempted to take what limited programming has been available. He also notes that Mr. Caissie has experienced many lockdowns during his time in custody and that significant enhanced credit has been given to offenders in a number of recent cases because of similar lockdowns. Mr. Caissie, he argues, should receive anywhere from just under four years to five years for his pre-sentence custody.

[60] I note that counsel made their submissions on February 21, 2020. I adjourned Mr. Caissie’s matter to March 25, 2020 in order to prepare my reasons. Before that date, however, because of Covid-19, the Superior Court of Justice adjourned all cases to June. Given that development, and other challenges posed by Covid-19, I was unable to give my reasons on that date. Thus, Mr. Caissie has spent just over one additional month in pre-sentence custody than was anticipated when counsel made their submissions. Given the positions of both the Crown and defence that the pre-sentence custody was not a significant issue in this case, I did not invite counsel to make any further submissions as to the impact of this additional time spent by Mr. Caissie in pre-sentence custody. That said, it seems clear to me that the delay caused by my inability to provide reasons until today’s date would be particularly stressful given Covid-19 and I take that into consideration.[^2]

[61] In my view looking at all of the circumstances, Mr. Caissie’s pre-sentence custody credit should be calculated to be 1460 days, or four years.

[62] I turn now to the issue of the appropriate further fixed-term sentence for Mr. Caissie.

What further fixed-term sentence is appropriate for Mr. Caissie?

[63] As noted above, the primary purpose of the dangerous offender provisions is the protection of the public. Thus, in such a proceeding, the relative importance of the sentencing objectives of rehabilitation, deterrence and retribution are less significant, and the objective of prevention becomes more pressing: Lyons, at para. 27. That said, the sentencing principles of parity, totality, restraint and proportionality -- the fundamental principle of sentencing -- must still be considered.

[64] The personal circumstances of the offender are relevant to the assessment. Here, there is no doubt that Mr. Caissie had a tragic childhood. He suffered from hearing impairment and delayed speech and was diagnosed with a learning disability. Both of Mr. Caissie’s parents experienced mental health challenges and substance abuse issues. As a small boy, Mr. Caissie witnessed extreme violence perpetrated against his mother by his father, including the use of firearms. His father was also physically abusive with Mr. Caissie and his two sisters. When Mr. Caissie was five years old, he was placed in the custody of the Children’s Aid Society. Mr. Caissie then spent years being moved around to multiple group homes and foster care settings. He was introduced to drugs at an early age. He tried to commit suicide when he was seven and then again when he was 12. Mr. Caissie then moved out on his own when he was only 16 years old. He committed his first robbery when he was 17.

[65] I will not delve into any more detail about the difficult circumstances of Mr. Caissie’s life except to say that while his background does not excuse his crimes, it provides important context to understanding Mr. Caissie. It also highlights the importance of ensuring that Mr. Caissie gets the appropriate counselling and treatment he needs before he is released.

[66] The circumstances of the predicate offence are also relevant to the assessment of what would be a fit sentence. As noted above, even in a dangerous offender matter, the sentence imposed cannot be entirely disconnected from the predicate offence.

[67] Here, Mr. Caissie went into a convenience store armed with a knife and demanded money from the lone female employee. After she fled, he tried unsuccessfully to open the cash register and then grabbed some cigarettes and fled.

[68] This was a serious offence with many aggravating factors. Mr. Caissie was armed. He caused psychological harm to the victim. Mr. Caissie has a history of robbing convenience stores in a similar manner, which is a highly aggravating factor. Convenience store employees are vulnerable and exemplary sentences are required to further the objectives of deterrence and denunciation.

[69] On the other hand, I keep in mind that the robbery was not particularly sophisticated. Mr. Caissie made no overt threats towards the employee. He did not physically hurt or even touch her. Mr. Caissie made no effort to stop her from leaving.

[70] Moreover, Mr. Caissie’s crime was driven by his severe substance abuse disorder, not greed. A substance abuse disorder that was, as Dr. Waisman testified, readily apparent from his background when he was serving his previous sentences. Yet, inexplicably, Mr. Caissie was not given any treatment or counselling to help him with his substance abuse disorder before he was released. I also note that Mr. Caissie was released from custody at the end of his warrant expiry date, without any assistance to help him integrate back into the community.

[71] That is not to excuse Mr. Caissie for his crime; rather, it highlights the need to ensure that Mr. Caissie has the appropriate psychological, behavioural and drug treatment in custody before he is released into the community: programming that takes into consideration his learning disability and addresses his severe substance abuse disorder. It also underscores that Mr. Caissie’s release into the community should be carefully planned, with extensive support, supervision and monitoring put into place.

[72] According to Dr. Waisman, Mr. Caissie needs up to two years of treatment and counselling to manage his risk. Based on the evidence of Ms. Phillips, once Mr. Caissie is moved to the federal system, he will go through an intake period of between 60 to 90 days. Some time will elapse before he is able to start his programming. If history is a guide, Mr. Caissie may face some self-erected roadblocks along his path to complete his programming. But if he does well in custody, he would qualify for parole in the regular course.

[73] I have considered all of the circumstances. In my view, the sentence being suggested by the Crown is more than is needed to address any risk to the public, or to advance any other sentencing objectives. On the other hand, the sentence being suggested by the defence does not allow enough time to ensure that any risk posed by Mr. Cassie is reduced to an acceptable level.

[74] I have determined that a sentence of three years in addition to pre-sentence custody is the appropriate sentence. Such a sentence will allow Mr. Caissie sufficient time to focus on the programming and treatment he needs. This will ensure that any risk posed by Mr. Caissie can be reduced to an acceptable level and further the primary purpose of the dangerous offender legislation -- the protection of the public.

[75] Moreover, three years in addition to Mr. Caissie’s pre-sentence custody credit of four years brings his total effective fixed sentence to seven years. In my view, in addition to furthering the goal of protection of the public, an effective sentence of seven years also gives voice to the sentencing objectives of deterrence and denunciation, while still recognizing the sentencing principles of restraint and proportionality.

Conclusion

[76] The Crown has established beyond a reasonable doubt that Mr. Caissie committed a serious personal injury offence and that Mr. Caissie constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of two patterns of conduct. First, a pattern of repetitive behaviour, of which the predicate robbery forms a part, showing a failure to restrain his behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through a failure in the future to restrain his behaviour. Second, a pattern of persistent aggressive behaviour, of which the predicate robbery forms a part, showing a substantial degree of indifference on Mr. Caissie’s part respecting the reasonably foreseeable consequences to other persons of his behaviour.

[77] As a result, I find Mr. Caissie to be a dangerous offender pursuant to s. 753(1)(a)(i) and (ii) of the Criminal Code.

[78] That said, an indeterminate sentence is not warranted for Mr. Caissie. There is a reasonable expectation that a further fixed-term sentence of three years followed by a 10-year long-term supervision order will adequately protect the public against the commission by Mr. Caissie of murder or a serious personal injury offence.

[79] The effective sentence is thus seven years. Mr. Caissie has been in custody for 966 days. That should be calculated on an enhanced basis to be the equivalent of 1460 days (or four years), which should be noted. Having regard to the pre-sentence custody of four years, Mr. Caissie has a remaining sentence to serve of three years.

[80] Mr. Caissie will then be subject to a long-term supervision order in the community for a period of 10 years in accordance with the provisions of the Criminal Code and the Corrections and Conditional Release Act.

[81] In his comments to me, Mr. Caissie told me that he wanted help; that he wanted to change; that he wanted to live a crime-free life. This sentence gives Mr. Caissie a chance to prove that he meant what he said. Much of what happens next rests in Mr. Caissie’s hands. Mr. Caissie must do the hard work to address his long-standing issues. Mr. Caissie must stay motivated. Mr. Caissie must not self-sabotage. Mr. Caissie must behave while in the institution, so he can access the help he needs. And, once released, Mr. Caissie must strictly abide by the terms of his long-term supervision order or he will be right back in custody. It will not be easy, and it is up to him -- but there is hope for Mr. Caissie. A further three-year sentence followed by a long-term supervision order gives Mr. Caissie a chance to show that he can be a contributing member of our society, while also protecting the public.

Ancillary Orders

[82] Robbery is a primary designated offence. Pursuant to s. 487.051(1) of the Criminal Code, I order that Mr. Caissie provide a sample of his bodily substance for forensic DNA analysis. Because of the unique circumstances of the Covid-19 pandemic, I am directing that the sample does not need to be taken before October 31, 2020, which may be revisited if necessary.

[83] A mandatory weapons prohibition pursuant to s. 109 of the Criminal Code also applies. Pursuant to s. 109(2), Mr. Caissie is prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. Pursuant to s. 109(3), he is prohibited from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance for life.

[84] Pursuant to s. 760 of the Criminal Code, a copy of Dr. Waisman’s report and a transcript of his testimony, along with a copy of these reasons and a transcript of the trial shall be forwarded to Correctional Service of Canada for information.

Justice Heather McArthur

Released: April 28, 2020

Appendix “A” - Outline of Mr. Caissie’s Criminal Record

Date	Offence	Disposition
2009-10-01	Possession of Property Under	Suspended sentence and 18 months probation (5 days PTC)
2009-10-01	FTC Recognizance x2	Suspended sentence and 18 months probation (5 days PTC)
2009-10-01	Trespass at night	Suspended sentence and 18 months probation (5 days PTC)
2009-10-01	Theft Under $5000	Suspended sentence and 18 months probation (5 days PTC)
2009-10-01	Break and Enter	Suspended sentence and 18 months probation (5 days PTC)
2010-06-10	Robbery x7 (facts read in on additional 7 robberies) Disguise with intent x 3 Possession weapons dangerous x 3	Global sentence 4 years and 6 months (4 months PSC) s. 109 order
2010-06-10	Fail to Comply Recognizance (x2)	3 months on each charge concurrent 4 months PTC
2010-06-10	Fail to Comply Recognizance	3 months on each charge concurrent 4 months PTC
2010-07-08	Assault with a Weapon (institutional)	6 months concurrent with sentence serving s. 109/110 order
2013-04-30	Aggravated Assault of Peace Officer (institutional)	2 years consecutive to sentence serving 44 days PTC Sentence date July 10, 2013
2015-05-28	Assault Peace Officer (institutional)	60 days consecutive to sentence serving Sentence date May 28, 2015
2017-10-30	Possession of stolen property over (truck) Use stolen credit card Possession stolen debit card	30 days pre-sentence custody + 12 months probation
2018-03-18	Threaten bodily harm (courthouse special constable)	30 days pre-sentence custody
2019-05-19	Robbery (Predicate Offence)	Dangerous Offender Designation: Three years in addition to pre-sentence custody of four years (effective seven years) followed by 10-year LTSO

COURT FILE NO.: CR-18-70000354-0000

DATE: 20200428

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

CODIE CAISSIE

REASONS ON DANGEROUS OFFENDER APPLICATioN

Justice Heather McArthur

Released: April 28, 2020

[^1]: A number of criminal charges were laid in relation to that incident, but at the request of the Crown Attorney, the charges were stayed.

[^2]: These reasons are being delivered by way of teleconference with the consent of all parties.

R. v. Caissie, 2020 ONSC 1939

Case Summary

Introduction

The Legal Framework for Dangerous Offender Applications

Issues not in Dispute

Mr. Caissie committed a serious personal injury offence

Issues in Dispute

Ancillary Orders

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Statutory Provisions 2

Legal Tests 1

Legislation 9