R. v. Dennis Paul George, 2020 ONSC 268

COURT FILE NO.: 150/18 DATE: 2020/01/14 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – DENNIS PAUL GEORGE Defendant

Counsel: Brian D. White, for the Crown P. Behr, for Mr George

HEARD: January 14, 2020 Leach J.

Overview

[1] On November 18, 2019, in this proceeding, I delivered my judgment finding Mr George not guilty of the charged offence of attempted murder, contrary to s.239(1) of the Criminal Code of Canada (“the Code”), but guilty of the lesser offence of “aggravated assault”, contrary to s.268(1) of the Code, which was included within the description of alleged misconduct set forth in the amended indictment.

[2] The full circumstances of Mr George’s aggravated assault offence were set forth in considerable detail in my reasons for judgment, and I accordingly will not replicate them here. For present purposes, suffice it to say that Mr George repeatedly and forcefully struck his victim Courtney Melhuish in the face and head with a hammer, as she lay unconscious and defenceless in a recliner chair, (at least after the first such blow), thereby inflicting horrific and permanent injuries described at length in my judgment.

[3] Prior to sentencing, the Crown now has brought an application for an order, pursuant to s.752.1(1) of the Code, remanding Mr George, for a period not exceeding sixty days, for a psychiatric assessment.

[4] The specific terms of the order sought by the Crown are set out in the draft order found at Tab 4 of the Crown’s application record, which I have reviewed in detail. Generally, however, the draft order contemplates:

a. that Mr George will be remanded to the custody of the Ministry of Community Safety and Correctional Services (or “MCSCS”) for a period not exceeding 60 days, starting February 10, 2020, or as soon as possible thereafter;

b. that Mr George then would be transferred to one of two named Toronto detention facilities, chosen by the MCSCS, permitting Mr George to be then be transported in a secure setting to the Centre for Addiction and Mental Health, (at one or both of its two specified addresses in Toronto), for the purpose of an assessment conducted and/or overseen by Dr Phillip Klassen, an expert psychiatrist whose extensive curriculum vitae was supplied at Tab 3 of the Crown’s application record; and

c. that Mr George, after remaining at the Centre for a day to facilitate that assessment, then would be transferred back to the Toronto detention centre chosen by the MCSCS, (where he might be the subject of further review by Dr Klassen and/or those working under his supervision), before being returned to another facility chosen by the MCSCS following the assessment period.

Application material

[5] In support of its application, the Crown has filed, in addition to its notice of application, factum and voluminous book of authorities, an extensive record, which I have reviewed in detail. It includes, amongst other things:

a. A copy of Mr George’s lengthy criminal record, (prior to the aggravated assault conviction in this proceeding), which includes, in addition to numerous convictions for property-related offences, custodial violations and breach of recognizance, convictions for:

i. assault with a weapon, (on two separate occasions);

ii. assault causing bodily harm;

iii. simple assault, (on three separate occasions);

iv. criminal harassment;

v. robbery;

vi. robbery with use of a firearm and/or armed robbery, (on two separate occasions); and

vii. manslaughter;

b. Transcripts of reasons corresponding to six occasions on which Mr George was sentenced in relation to prior convictions, namely – in chronological order:

i. From March of 1992, a transcript relating to one of Mr George’s convictions for robbing a bank with a firearm – with a brief indication that Mr George robbed a bank with a gun;

ii. From March of 1994, a transcript relating to a conviction for robbery – with indications that Mr George, shortly after meeting his victim in a bar, pushed the victim the ground in a nearby parking lot before kicking and punching the victim, and demanding the victim’s wallet and watch, both of which the victim then handed over to Mr George;

iii. From March of 1998, a transcript relating to a conviction for armed robbery of a bank – with indications that Mr George traumatized and frightened numerous vulnerable and innocent victims in a bank, in the middle of the day, using firearms, threats of violence and force to obtain a significant amount of cash;

iv. From May of 2008, a transcript relating to Mr George’s conviction for manslaughter – with indications that Mr George, while incarcerated in the Joyceville penitentiary in Kingston, and experiencing a longstanding hatred and intolerance of sex offenders, stabbed another inmate serving a sentence for sexual offences, (using an eight-inch bolt with one end filed to a point), severing one of the victim’s arteries, in turn causing him to bleed to death;

v. From October of 2015, a transcript relating to one of Mr George’s assault convictions – with indications that Mr George assaulted his intimate partner at the time by pulling her off a chair and striking her on the right side of her face, causing “rug burns” to her knees and right elbow, as well as bruising and swelling to the right side of her face; and

vi. From July of 2016, a transcript relating to one of Mr George’s assault with a weapon convictions – with indications that Mr George, during a visit to the home of a male cousin that began with a friendly dinner, suddenly accused the cousin of having a sexual relationship with one of Mr George’s former girlfriends, and thereafter attacked the cousin in his own living room with the handle of an axe, striking the cousin in the right side of his face so as to inflict a four inch wound over the cousin’s right eye, before expressly indicating that he was going to kill the cousin – which caused the cousin to flee his own home and call the police;

c. Psychological risk/need assessment reports prepared in November of 2005, June of 2008, and July of 2010, providing more detailed information about such matters as Mr George’s history and offences, as well as other incidents of violence in which Mr George has been involved, (including intimate partner violence and violent incidents occurring while Mr George has been incarcerated at penal institutions), along with indications of mental health and substance abuse issues, and other testing evidence, all speaking to Mr George’s risk of recidivism, including further acts of violence;

d. Numerous “Detention Review Decision Sheets”, prepared by the National Parole Board in April of 2006, April of 2012 and January of 2014, indicating the Board’s repeated assessments, with detailed reasons, (including further reviews of Mr George’s history and progress or lack of progress towards addressing his risk factors), opining/finding that Mr George likely to commit a further offence causing death or serious harm to others if he was released prior to expiration of the sentences he was serving;

e. A Criminal Profile Report prepared by the Millhaven Assessment Unit in September of 2008, providing a detailed history of Mr George, including an outline and analysis of his prior criminal behaviour, his Aboriginal heritage, his psychological and psychiatric history, indications of his history of intimate partner violence, and an extended and detailed account of his institutional/community supervision history, (addressing, inter alia, many incidents of violence in which Mr George had been involved), before indicating a conclusion that Mr George’s level of risk to reoffend at the time was high;

f. An example of an Elder Assessment, (completed in November of 2008 at the Millhaven Institution), carried out in an effort to determine Mr George’s identity in relation to his First Nations background, and formulate an Aboriginal Healing Plan;

g. A copy of the Warrant Expiry Release Package prepared in relation to Mr George, in January of 2014, summarizing Mr George’s criminal history, prior psychological risk assessments, prior Parole Board decisions, release plans, progress (or lack of progress) against correctional plans – with an indication that Mr George essentially remained an untreated violent offender – and current risk concerns, opining that Mr George was assessed a high risk for violent reoffending; and

h. A “Level of Service Inventory – Ontario Revision” form, completed in relation to Mr George in February of 2017, assessing Mr George, and indicating, inter alia, that he has a pattern of violent offending both in the community and during incarceration; that he has responded aggressively as a means of conflict resolution, as an act of revenge or retaliation in the context of instrumental violence and in the context of intimate partner violence; that he exhibits poor self-control; that he fails to accept responsibility for his behaviour and demonstrates a pattern of minimization, rationalization and shifting of blame; that he is unpredictable and volatile in the community; and that testing scores place him at a very high level of risk to reoffend.

[6] In oral submissions, Crown counsel emphasized that the material in the Crown’s application record is essentially a sample of much more extensive information to follow if and when the Crown proceeds with its contemplated application to have Mr George found to be a dangerous offender or long-term offender, and presents only a “small glimpse” of is anticipated in that regard. For example, Mr White notes that the Crown has undertaken and continues to undertake the process of assembling a much more extensive body of material that will include many warrants of committal and additional court records, as well as “several hundred” additional MCSCS reports prepared during the decades Mr George has spent in custody.

[7] No material was filed in response to the Crown’s application – with Mr George’s counsel Mr Behr indicating that the Crown’s section 752.1 application was not being opposed. In that regard, Mr Behr confirmed that there was no dispute that Mr George’s aggravated assault on Ms Melhuish constituted a “serious personal injury offence”, and that the circumstances, put forth in the Crown’s application material, were at least sufficient to satisfy the low threshold to be met when determining if there are “reasonable grounds to believe” that the Crown “might” succeed in having Mr George found to be a dangerous offender or long-term offender.

Analysis

[8] Although the application is not being opposed, the court has an independent “gatekeeper” function to perform, in relation to s.752.1 applications, to ensure that such court-ordered expert assessments are appropriate, and that convicted offenders are not subjected to the prospect of a “dangerous offender” or “long term offender” characterization too easily, bearing in mind the potentially very serious consequences of such characterization, including the possibility of indeterminate detention. See, for example, R. v. P.H., [2005] O.J. No. 5698 (S.C.J.).

[9] I therefore must be independently satisfied that the relief sought by the Crown in its current application is appropriate; i.e., that the circumstances satisfy the legislative prerequisites established by s.752.1(1) of the Code, which reads as follows:

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

[10] The interpretation and application of those provisions has been extensively addressed and settled by substantial jurisprudence, much of which was tendered by the Crown in support of its application.

[11] However, as the application is unopposed, I intend to cite only some of those interpretation principles, and associated legislative provisions, to the extent necessary, to indicate why I independently am satisfied that the relief sought by the Crown should be granted.

[12] In that regard:

a. The first effective requirement of s.752.1(1) is that the offender has been convicted of a “serious personal injury offence”, or “an offence referred to in paragraph 753.1(2)(a)” of the Code. It is unnecessary in the present context to consider the latter provisions, which generally deal with various sex and human trafficking offences, and which clearly seem irrelevant to the circumstances of Mr George.

b. The term “serious personal injury offence” is defined in section 752 of the Code. For present purposes – and once again leaving aside the components which deal with various indicated sexual offences and which accordingly are irrelevant in the immediate context – a “serious personal injury offence” includes any indictable offence, (other than high treason, first degree murder or second degree murder), for which the offender may be sentenced to imprisonment for ten years or more, 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.

c. The aggravated assault offence in respect of which Mr George has been convicted is, pursuant to s.268(2) of the Code, an indictable offence, in respect of which those committing it are liable to imprisonment for a term up to and including 14 years – which obviously is more than 10 years.

d. As noted earlier, it is then sufficient, to satisfy the first effective requirement of s.752.1, if the indictable aggravated assault offence, (punishable by more than 10 years imprisonment), involved “the use or attempted use of violence against another person”. In that regard, the Supreme Court of Canada has indicated and confirmed, in R. v. Steele, 2014 SCC 61, [2014] S.C.J. No. 61, that the provisions in question do not qualify the term “violence”, or otherwise import, implicitly or otherwise, any “objective minimum level of violence” requirement. The criteria for this aspect of a “serious personal injury offence” therefore may be satisfied even if the violence in question is not in itself “serious”.

e. In my view, there is no question that Mr George’s conduct in committing his aggravated assault offence, outlined in detail in my reasons for judgment, self-evidently involved the “use or attempted use of violence” against Ms Melhuish. That is sufficient, (along with the other matters I already have identified), to satisfy the requirements of sub-paragraph (a)(i) of the s.752 definition of a “serious personal injury offence” – although I think, in this case, based on the evidence I received at trial, that the alternative requirements of sub-paragraph (a)(ii) are satisfied as well, given that Mr George’s aggravated assault offence involved conduct endangering or likely to endanger the life and/or safety of Ms Melhuish.

f. In any event, the first effective general requirement of s.752.1 – that Mr George has committed a “serious personal injury offence” – has clearly been established.

g. The second effective general requirement of s.752.1 requires the court to be satisfied that there are “reasonable grounds to believe” that Mr George “might be found to be either:

i. a “dangerous offender” under section 753 of the Code; or

ii. a “long-term offender” under section 753.1 of the Code.

h. In effect, this means that the court must find that there are “reasonable grounds to believe” that the requirements of s.753(1) or s.753.1(1) “might” be satisfied, in relation to an offender who has been convicted of a serious personal injury offence. Again, reasonable grounds to believe the requirements of either might be satisfied is sufficient to make out the second general effective requirement of s.752.1 of the Code.

i. In that regard, numerous authorities have emphasized that, in the context of making that required s.752.1 determination, (i.e., as to whether there are “reasonable grounds to believe” that the “dangerous offender” or “long-term offender” requirements “might” be satisfied in relation to someone convicted of a serious personal injury offence), the applicable threshold is well below the balance of probabilities, and far removed from the criminal standard of proof beyond a reasonable doubt; see, for example, R. v. States, [2015] O.J. No. 6979 (S.C.J.). In that regard, the applicable threshold has been alternatively described as being:

i. “low” – see R. v. Ellis, 2008 BCSC 1890 and R. v. D.J.B., [2012] B.C.J. No. 1953 (S.C.);

ii. “very low” – see R. v. Wong, [2002] O.J. No. 3330 (S.C.J.) and R. v. Whitmore, [2011] O.J. No. 5307 (S.C.J.); or

iii. simply “within the realm of possibility” – see R. v. Fulton, [2006] S.J. No. 669 (C.A.) and R. v. Pascal, 2012 SKQB 97.

j. It also has been emphasized that the use of the word “might”, in s.752.1 of the Code, should be given its ordinary grammatical meaning; i.e., denoting a “possibility”, a “real possibility”, or a “reasonable suspicion”. See R. v. Vincent, [2002] O.J. No. 5623 (S.C.J.); and R. v. States, supra.

k. Turning first to whether there are reasonable grounds to believe that the requirements for finding Mr George a “dangerous offender” might be satisfied:

i. Again, those requirements are set forth in s.753(1) of the Code. Although that subsection has two sub-paragraphs, i.e., sub-paragraphs (a) and (b), the latter refers to sexual matters, and once again has no relevant application to the circumstances of Mr George.

ii. In relation to Mr George, the Crown relies on the criteria set forth in s.753(1)(a) of the Code, and says there are three specific pathways to a “dangerous offender” finding, outlined therein, which the Crown might satisfy in this case – although passing the low s.752.1(1) threshold in relation to any one of them would suffice to meet the second requirement for the court’s making of an order pursuant to that section.

iii. In particular, s.753(1)(a) of the Code reads 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 or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour;

(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour; or

(iii) any behaviour by the offender, associated with the offence for which he or she has 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.

iv. In relation to whether there are “reasonable grounds to believe” that Mr George “might” be found to be a dangerous offender under s.753(1)(a)(i) or s.753(1)(a)(ii), i.e., the “pattern of behaviour” and “pattern of persistent aggressive behaviour” subsections:

1. Courts have emphasized that the proffered instances making up the requisite “pattern” may differ in detail, but still represent a pattern if they contain enough of the same requisite elements, contemplated by the subsection, to connect the prior incidents together in a manner that justifies considering them as a whole. Similarity can supply that requisite degree of connection. However, similarity can be found not only in the types of offences committed, but also in the degree of violence or aggression threatened or inflicted on victims. See, for example, R. v. Tremblay, 2010 ONSC 486, and R. v. Wood, 2015 ONSC 3154.

2. There is no requirement that the past conduct making up a pattern involve objectively serious offences, offences that are more or less serious, or even that they all be serious personal injury offences. See R. v. Newman, 1994 NLCA 9717, [1994] N.J. No. 54 (C.A.).

3. Moreover, similarity in terms of kinds of offences is not crucial, and becomes less important when the incidents of serious violence and aggression are more numerous. Generally, in order to meet the requirements of a pattern, the fewer the incidents, the more similar they must be – bearing in mind that even two incidents with sufficient similarities may constitute a pattern. See R. v. Langevin (1984), 45 O.R. (2d) 705 (C.A.); R. v. Neve, 1999 ABCA 206, [1999] A.J. No. 753 (C.A.); and R. v. Tremblay, supra.

4. In relation to s.753(1)(a)(i) of the Code, the common elements of the requisite relevant pattern must tend to show repetitive behaviour, that there has been a failure in each case to restrain the behaviour, and that there has been injury to other persons arising from that behaviour. The essence of a pattern is that there will be a number of significant similarities between each example. However, there may be differences between each example, (and some of them quite distinctive), so long as the differences leave the key significant relevant elements of the pattern in place. See R. v. Dow, 1999 BCCA 177.

5. In short, for the requisite pattern to exist, there must be a number of significant relevant similarities between each example offered as evidence of the pattern. There may be some differences, but if the key significant elements remain in place, there is a pattern. See R. v. Newton, [2006] O.J. No. 1108 (S.C.J.).

6. The material contained in the Crown’s application record supplements the information provided in Mr George’s criminal record, and the provided transcripts, to provide a very detailed and extended history of numerous incidents, over the course of Mr George’s life, that in my view, “might” be found to constitute a pattern of showing a repetitive failure to exercise restraint in relation to violent and aggressive behaviour, inflicting harm on others and/or showing a substantial degree of indifference concerning the reasonably foreseeable consequences to others. For example, further details provided in relation to the circumstances of Mr George’s earlier offences include details that:

a. In the course of committing his first assault with a weapon, Mr George reacted to efforts by a security guard to restrain his shoplifting by using the guard’s own handcuffs to strike him on the head, causing a gash to his forehead requiring six stitches;

b. In the course of committing his first armed bank robbery, Mr George pointed a gun directly at the face of a teller and cocked the weapon, demanding money, before gratuitously firing his gun into the ceiling of the bank when leaving;

c. In the course of committing his second armed bank robbery, Mr George armed himself with a sawed off shut-gun, threatening to “blow the heads off” customers if they got up from the floor;

d. In the course of apparently admitted assaults on intimate partners, Mr George has, in addition to the incident described in the transcripts noted above, assaulted his fiancé and punched another girlfriend in the mouth;

e. Mr George himself has acknowledged that he frequently experiences an apparently uncontrollable desire to exact violent retribution on sex offenders, (owing to what he understands to have been sexual abuse experienced by his mother and aunt), which apparently has led not only to the manslaughter conviction described above, but numerous other documented assaults and attempted assaults, including additional attempted and planned stabbings, at the institutions in which he has been incarcerated, to the extent that holding him in many integrated institutions has become difficult or impossible. In that regard, it seems that Mr George’s impulsive and unrestrained behaviour apparently has extended to punching another individual who was in custody as the two happened to be passing in a courthouse hallway.

7. Having regard to all the circumstances of the predicate aggravated assault offence committed by Mr George, and the extended and extensive incidents of apparently unrestrained, violent and aggressive behaviour documented in the Crown’s application record, inflicting or threatening harm and trauma upon numerous apparent victims, I independently agree with the Crown’s submission that there are reasonable grounds to believe the Crown “might” succeed in having Mr George found to be a dangerous offender, pursuant to either of the “pattern of behaviour” pathways described in ss.753(1)(a)(i) and (ii) of the Code. That finding is sufficient to satisfy the second effective general requirement of s.752.1 for making the requested order remanding Mr George for an expert assessment.

v. However, I also independently agree that there are, as well, reasonable grounds to believe that Mr George “might” be found to be a dangerous offender under s.753(1)(a)(iii) of the Code; i.e., on the basis that behaviour associated with Mr George’s offence against Ms Melhuish might be found to be “of such a brutal nature as to compel the conclusion that [his] behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint”. In that regard:

1. Our courts have emphasized that ascertaining the existence of the requisite “brutality” in any given case necessarily will vary with the crime itself, the way in which it was committed, the effect on the victim, and the offender’s attitude and mental state”. See R. v. Campbell, 2004 ONSC 19316, [2004] O.J. No. 2151 (S.C.J.).

2. The range of factors to be considered accordingly is somewhat open-ended, but may include the nature of the ill-treatment inflicted on a victim; the means and method employed by the offender; the repetition and/or duration of the ill-treatment; the age and health of the victim exposed to such ill-treatment; the likelihood that such ill-treatment might injure the victim physically, mentally or psychologically; whether the ill-treatment inflicted injuries that were severe and/or long-lasting; and the mental state of the offender while committing the offence. See R. v. Paxton, 2013 ABQB 750, [2013] A.J. No. 1451 (Q.B.).

3. Our Court of Appeal also has held that, among the behaviors that may satisfy the relevant “brutality” requirement is conduct that is “coarse, savage and cruel”, and “capable” of inflicting severe psychological damage on the victim. See R. v. Langevin, supra.

4. Having regard to such considerations, I am satisfied that there are reasonable grounds to believe that the conduct of Mr George, in committing his aggravated assault upon Ms Melhuish, “might” be found to constitute the sort of brutality contemplated by s.753(1)(a)(iii), in turn justifying a finding that Mr George is a “dangerous offender”. Without limiting the generality of the foregoing, I think there are reasonable grounds to believe that repeatedly hitting an unconscious and defenceless young woman in the head and face with a hammer, over the course of a number of minutes, leaving Ms Melhuish with horrific, severe and permanent debilitating injuries, might be characterized as “coarse”, “savage” and “cruel” treatment capable of making Ms Melhuish experience severe psychological damage, in addition to her other injuries.

l. For the reasons I have outlined, I therefore independently find there is a sufficient basis for making the requested s.752.1 order, based on Mr George having committed a “serious personal injury offence”, and the existence of reasonable grounds to believe that, through various alternative pathways, Mr George “might” be found to be a dangerous offender pursuant to s.753(1)(a).

m. While that is a sufficient basis on which to grant the application, I also independently find that there are reasonable grounds to believe that the requirements for finding Mr George to be a long-term offender might be satisfied in the circumstances. In that regard:

i. The possibility of someone being found to be a “long-term offender” is expressly addressed by the provisions of s.753.1 of the Code, subsection (1) of which reads as follows:

753.1 (1) The court may, on application made under this Part, following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that

(a) it would be more appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;

(b) there is a substantial risk that the offender will reoffend; and

(c) there is a reasonable possibility of eventual control of the risk in the community.

ii. Subsection (2) of s.753.1 then contains provisions creating a conclusive presumption of there being a “substantial risk that the offender will reoffend” in certain circumstances relating to sexual offences.

iii. However, our Court of Appeal has emphasized, in R. v. Szostak, 2014 ONCA 15, [2014] O.J. No. 95 (C.A.), that s.753.2 does not apply only to sexual offences; i.e., so as to make a long-term offender finding possible only in relation to such sexual offences. To the contrary, s.753.1 also extends to an offender convicted of a serious personal injury defence, as defined in section 752. In such cases, the question of whether there is a “substantial risk that the offender will reoffend” simply has to be determined without the aid of a similar conclusive presumption.

iv. For the reasons I already have outlined, Mr George’s aggravated assault upon Ms Melhuish constitutes a “serious personal injury offence”.

v. As for whether the Crown “might” satisfy the other three criteria for a “long-term offender’ finding, set forth in s.753.1(1):

1. Having regard to the circumstances of Mr George’s offence set forth in my reasons for judgment, I think there are “reasonable grounds to believe” that it might be appropriate to impose a sentence of imprisonment of two years or more for Mr George’s aggravated assault conviction – and, during the course of oral submissions, I was informed that there appears to be no contest in that regard.

2. For reasons similar to those set forth above in relation to the application of ss.753(1), I also think there are “reasonable grounds to believe” that the court might find there is a “substantial risk” that Mr George will reoffend. Certainly, the Crown’s application record contains numerous indications that, from 2000 to as recently as 2017, Mr George repeatedly has been assessed and/or found to be someone presenting a high risk of reoffending.

3. Having regard to the information set forth in the Crown’s application record, I think it fair to say that there may be greater uncertainty about the court being satisfied that “there is a reasonable possibility of eventual control of the risk in the community”. For example, the Warrant Expiry Release Package, echoing similar earlier comments in the psychology assessments and Parole Board Review Decisions, emphasizes that, during his many years of incarceration, Mr George made little or no progress in addressing his lack of guilt and victim empathy, his failure to recognize the severity of his criminal history, and his failure to address his risk factors in terms of reoffending – such that he effectively remained, at the time of his release, an untreated violent offender. The same documentation indicates that he was being released without any relapse prevention plans or significant insight towards his cycle of crime. There were also ongoing concerns about his chronic mental health issues and drug abuse, both of which were thought to heighten Mr George’s risk of reoffending. However, at this s.752.1 stage, I am once again mindful of the extremely low threshold for establishing “reasonable grounds to believe” that it “might” be established that “there is a reasonable possibility of eventual control of the risk in the community”. Moreover, as the Supreme Court of Canada has emphasized in R. v. Boutilier, 2017 SCC 64, [2017] S.C.J. No. 64, the dangerous offender scheme, (and I think there is no reason to believe the long-term offender scheme as well), contemplates a prospective assessment of risk. The dangerous offender scheme, in particular, is designed such that it will not capture offenders who, though currently a threat to others, might cease to be a threat in the future; e.g., after successful treatment. In short, past indications that Mr George had a “high risk” of reoffending do not negate the possibility that he may not present such a “high risk” in the future, which inherently is unknown. In this case, for example, I think it arguable that, on a fair reading of the Warrant Expiry Release Package, there are implicit if not explicit indications that, had Mr George availed himself of the programs available to address his risk factors, that might possibly have reduced such risk factors – perhaps to the extent of making such risks capable of being controlled in the community. If so, that suggests at least the possibility of that occurring during any future period of Mr George being incarcerated, if he engages in such programs of rehabilitation and treatment. In my view, that is sufficient to satisfy the low threshold, applicable at this stage of the proceeding, in relation to determining whether there are reasonable grounds to believe that the Crown “might” satisfy the s.753.1(1)(c) requirement for having Mr George found to be a long-term offender.

vi. More broadly, for the reasons I have outlined, in my view, there are reasonable grounds to believe that all the requirements for finding Mr George a “long-term offender” might be satisfied in the circumstances.

Conclusion

[13] For all of the above reasons, I have signed, (as requested by the Crown), three original copies of an order in the form set forth in the draft found at Tab 4 of the Crown’s application record.

“Justice I.F. Leach”

Justice I.F. Leach

Released: January 14, 2020

R. v. Dennis Paul George, 2020 ONSC 268 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – DENNIS PAUL GEORGE REASONS FOR section 752.1 assessment order Justice I.F. Leach

Released: January 14, 2020