COURT FILE NO.: CR-17-40000833 DATE: 20200703 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – QUINNTON DRAKE Defendant
Vogel, T. and Valarezo, C. for the Crown Goldkind, A. for the Defendant
HEARD : March 25, 26, 27, 28, April 1, 2, September 5, 2019 and May 6, 2020 [1]
REasons on dangerous offender application
H. mcarthur J.:
Introduction
[1] On February 27, 2018, Quinnton Drake pleaded guilty before me to one count of robbery with a firearm, one count of possession of a loaded prohibited firearm, five counts of point firearm, one count of dangerous driving and one count each of fail to comply with a prohibition order and fail to comply with probation.
[2] The Crown then brought a dangerous offender application. [2] At the hearing, I heard from two witnesses for the Crown. First, Sherri Rousell, from Correctional Service of Canada, who testified about the programs available to inmates in the Federal institutions and the supervision available once offenders are released back into the community. Second, Dr. Scott Woodside, who prepared a court-ordered assessment report pursuant to s. 752.1 of the Criminal Code and testified about the risk assessment he conducted with respect to Mr. Drake. I also heard from Mr. Drake, who testified about his openness to treatment and counselling, his remorse for his past offences and his commitment to turning his life around.
[3] Based on the evidence at the hearing there is no dispute between the defence and the Crown that Mr. Drake must be found to be a dangerous offender pursuant to s. 753 of the Criminal Code.
[4] The parties diverge, however, over the appropriate sentence for Mr. Drake. The Crown argues that nothing short of an indeterminate sentence will suffice to ensure that the public is protected from the risk posed by Mr. Drake. The defence argues that a sentence of nine to 11 years, minus pre-sentence custody, followed by a 10-year long-term supervision order will reduce any risk posed by Mr. Drake to an acceptable level. I have determined that Mr. Drake’s pre-sentence custody should be calculated to be the equivalent of five years. [3] As a result, that means that the defence seeks a further fixed sentence of four to six years for Mr. Drake, followed by a long-term supervision order.
[5] For the reasons set out below, I have determined that an indeterminate sentence is required in this case. Based on the record before me, I am not satisfied that there is a reasonable expectation that a fixed-term sentence, even when followed by a long-term supervision order, will adequately protect the public against the commission by Mr. Drake of murder or a serious personal injury offence.
[6] At the outset, I will briefly outline the facts surrounding the offences. I will then address the legal framework for dangerous offender applications. Next, I will outline why I agree with both the Crown and the defence that Mr. Drake must be designated a dangerous offender. Finally, I will explain why I have concluded that an indeterminate sentence is required in this case.
The Facts
a) The Offences
[7] On July 15, 2017, Mr. Drake embarked on a “crime spree” that started with the theft of a car. Mr. Drake then drove in such an alarming way that several witnesses called 911 and took videos. Witnesses described Mr. Drake driving erratically on Highway 400, having difficulty keeping control of the car and rapidly swerving in and out of lanes on the highway. At one point, Mr. Drake struck the center guard rail, spun around on the highway and faced the opposite direction of traffic. Mr. Drake continued to drive the car, even after a tire came off, driving on the rim and leaving grind marks on the roadway.
[8] Mr. Drake finally drove into the parking lot of a seniors’ home and hit a fence as he came to a stop. [4] He got out of the car and grabbed a loaded sawed-off shotgun from the trunk. Mr. Drake approached three civilians who were in a car that had followed him because of his dangerous driving. He pumped the loaded shotgun and aimed it directly at them. They thought he was going to shoot them. The driver immediately placed the vehicle in reverse and fled the area.
[9] Mr. Drake then pointed the loaded shotgun at two paramedics in an EMS van who had also followed him. They fled in their vehicle.
[10] Mr. Drake then began pointing his loaded sawed off-shotgun at vehicles on the road, including a tow truck and a black SUV, trying to stop them. Mr. Drake stood in the middle of the road and pointed his loaded sawed-off shotgun at a woman who was driving towards him. She slowed down and tried to drive around him but was unable to do so. Mr. Drake pointed his shotgun at her and screamed, “Stop or I’ll shoot you.” He smacked the hood of the car and pointed his shotgun at her. Mr. Drake went to the driver’s side of the door and ordered her out of the car. She fled and Mr. Drake got into the car and drove away.
[11] At the time of the offence, Mr. Drake was bound by four separate weapons prohibition orders. He was also bound by a probation order which required him to keep the peace and be of good behaviour and not to possess any weapons. He clearly breached all five court orders.
[12] Mr. Drake was arrested on July 18, 2017. At that time, he had a concealed weapon on him, a large buck-style hunting knife.
b) The Circumstances Leading up to the Offences
[13] During Dr. Woodside’s assessment, Mr. Drake told him about the circumstances leading up to the offences: a drug-deal gone bad.
[14] According to Mr. Drake, he began to use drugs shortly after he was released from custody after serving sentence on criminal harassment and threat convictions. To make money, he turned to drug dealing about two weeks after his release from custody.
[15] Mr. Drake said that on the day of the incident he had been drinking, using cocaine and was “high” on MDMA. He had arranged to buy four ounces of cocaine from a dealer in Toronto in order to sell it. After buying the drugs, he saw four men come from behind the building with guns. Mr. Drake pulled out his sawed-off shotgun, which he had concealed under his shirt. The men began to fire at Mr. Drake; he fired back at them. Mr. Drake said he “emptied” the shotgun, and then stole the car and began the criminal trek that ended in his carjacking an innocent woman.
[16] Dr. Woodside cautioned Mr. Drake that anything that he said during the assessment could be used against him at this hearing. Despite that, Mr. Drake was open and forthright with the doctor about the events leading up to the offences, as well as many other crimes that he had committed for which he was never convicted. Given the caution, it would be open to me to rely on these revelations in my assessment. Even without these self-reports, however, given the applicable legal framework, the other known facts clearly establish that an indeterminate sentence is required.
[17] I turn now to the legal framework for dangerous offender applications.
The Legal Framework for Dangerous Offender Applications
[18] The primary purpose of the dangerous offender proceedings provisions is the protection of the public: R. v. Lyons, [1987] 2 S.C.R. 309, at paras. 26-27; R. v. Jones, [1994], 2 S.C.R. 229, at paras. 124-125; R. v. Johnson, 2003 SCC 46, at paras. 19, 23, 29.
[19] Dangerous offender proceedings involve a two-stage process: 1) the designation stage, and 2) the penalty stage. The designation stage is concerned with assessing the future threat posed by an offender. The penalty stage is concerned with imposing the appropriate sentence to manage the established threat: R. v. Boutilier, 2017 SCC 64, at para. 31.
[20] 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.
[21] Where, as in Mr. Drake’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.
[22] 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.
[23] 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.
[24] 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.
[25] 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.
[26] 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
(c) impose a sentence for the predicate offence.
[27] 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.”
[28] 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.
[29] Dangerous offender proceedings are sentencing proceedings and the judge in such a proceeding must apply the sentencing principles and mandatory guidelines set out in ss. 718 to 718.2 of the Criminal Code: R. v. Steele, 2014 SCC 61, at para. 40; Boutilier, at para. 53. Although protection of the public is the primary purpose of a dangerous offender proceeding that does not mean that this objective operates to the exclusion of all others. Rather, as explained in Lyons, preventive detention “represents a judgment that the relative importance of the objectives of rehabilitation, deterrence and retribution are greatly attenuated in the circumstances of the individual case, and that of prevention are correspondingly increased”: Lyons, at para. 27; Boutilier, at para. 55.
[30] There is no presumption in favour of an indeterminate sentence. As noted in Steele, “indeterminate detention and long-term supervision… are exceptional sentences in our criminal justice system. They are reserved for individuals who pose an ongoing threat to the public and accordingly merit enhanced sentences on preventive grounds”: Steele, at para. 1.
Issues Not in Dispute: the Designation Phase
[31] There is no dispute between the Crown and the defence with respect to the designation stage; based on the record before me, Mr. Drake must be designated a dangerous offender. I will briefly address why I agree with this position jointly taken by counsel.
Mr. Drake committed a serious personal injury offence
[32] There is no dispute that the robbery offence committed by Mr. Drake 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.
[33] Mr. Drake car-jacked a woman at gun point. The Victim Impact Statement makes it clear that the victim suffered significant psychological harm as a result.
[34] Mr. Drake clearly committed a serious personal injury offence.
Mr. Drake 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)(i)
[35] There is also no dispute that Mr. Drake 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)(i). That is, both sides agree that the evidence shows that Mr. Drake 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 a failure in the future to restrain his behaviour.
[36] Mr. Drake is 27 years old. [5] He committed his first violent offence when he was 15 years old. He and another youth threw another young man against a fence and stole his gold chain, bus pass and cell phone. As a result, Mr. Drake was convicted of robbery with violence in March 2008. Since that time, Mr. Drake has amassed five further robbery convictions (including the predicate offence) and one attempt robbery. In three of the robberies, he used a firearm. In another, he used a knife.
[37] Mr. Drake has been convicted of four assault-type offences. The most serious is an aggravated assault from July 2009, when Mr. Drake struck the victim with a two-foot machete, causing him to fall to the ground. Mr. Drake then struck the victim a further three to four times with the machete. Mr. Drake was also involved in a serious group attack on another inmate while in custody in 2016. Mr. Drake and others dragged the victim to the back of a room where they assaulted him to the point of unconsciousness.
[38] Mr. Drake has also been convicted of harassing a former girlfriend and threatening her new boyfriend. Mr. Drake had been out of custody for only 39 days after serving his sentence for the domestic offences when he committed the predicate offence.
[39] I do not intend to go any further in detailing Mr. Drake’s criminal background, which is set out in full at Appendix “A”.
[40] Suffice to say that the evidence clearly supports the position jointly taken by Crown and defence counsel. Mr. Drake’s criminal record 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.
[41] The evidence also shows that in the future, there is a likelihood of Mr. Drake causing death or injury to other persons, or inflicting severe psychological damage on other persons, through a failure to restrain his behaviour.
[42] Dr. Woodside testified before me and was qualified as an expert in forensic psychiatry, with an expertise in the assessment of risk of violent recidivism and the assessment and treatment of violent offenders. His assessment report was filed pursuant to s. 752.1(2) of the Criminal Code as Exhibit 14(b) on the hearing.
[43] I will not outline his evidence in detail. In brief, Dr. Woodside diagnosed Mr. Drake as having significant psychopathic traits by using the PCL-R, a tool designed to define and measure the extent to which an individual resembles the ideal of the prototypical psychopath. Dr. Woodside explained that significant criminality is usually associated with scores in the mid-twenties. Mr. Drake scored 33.7, which places him at the 94th percentile of male prison inmates. Dr. Woodside also diagnosed Mr. Drake as having a severe form of anti-social personality disorder. He also said that Mr. Drake had a severe substance use disorder.
[44] Dr. Woodside assessed Mr. Drake using the Violent Risk Appraisal Guide (VRAG), which he described as being one of the best instruments for providing an actuarial baseline of risk regarding violent reoffending. Mr. Drake received a score of +28, which places him at the 99th percentile compared to the sample. Mr. Drake fell in the 9th of 9 ascending categories of risk. In the developmental sample, 100% of offenders in the same risk category reoffended within 10 years. However, given the estimated measure of error associated with the VRAG, Mr. Drake’s true score would be expected to fall within one risk category above or below, which would mean that the expected probability that Mr. Drake would violently reoffend within 10 years would be expected to range between 82% to 100%. This rate of expected violent reoffending is roughly three times that expected of the average violent offender in the developmental sample.
[45] Dr. Woodside also assessed Mr. Drake using a structured professional judgment tool, the HCR-20. This tool is typically used to assess changing levels of risk over time. Mr. Drake received a total score of 35, which is “well-above average/high” score on this instrument.
[46] Overall, Dr. Woodside assessed Mr. Drake as being “well above average/very high risk” for future violent recidivism compared to other previously violent offenders.
[47] In my view, the evidence clearly supports the position jointly taken by counsel. Dr. Woodside’s evidence and an examination of Mr. Drake’s past actions establish beyond a reasonable doubt that in the future Mr. Drake is likely to cause death, injury or psychological harm to others through a continued failure to restrain his behaviour.
Mr. Drake 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)
[48] There is also no dispute that Mr. Drake 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. Drake, of which the predicate robbery offence is a part, showing a substantial degree of indifference on Mr. Drake’s part respecting the reasonably foreseeable consequences to other persons of his behaviour.
[49] Mr. Drake’s persistent aggressive behaviour is evidenced by the regularity of his offending, which has continued undeterred with few breaks since he was 15 years old. He has fifteen convictions for breaches of court orders; Mr. Drake has committed offences while on probation and while bound by prohibition orders.
[50] His pattern of offending also demonstrates a substantial degree of indifference on Mr. Drake’s part respecting the reasonably foreseeable consequences to other persons of his behaviour. Mr. Drake has committed six robberies. In three of the robberies, he brandished a gun and pointed it at his victims to force their compliance. Once he used a knife. He has been convicted of four assaults of varying severity. The most serious was detailed above, where Mr. Drake struck a man repeatedly with a machete. Mr. Drake has 16 documented incidents of aggression while in custody, both in youth and adult detention. Mr. Drake harassed a former girlfriend and threatened her new partner. Only 39 days after his release for those offences, Mr. Drake committed the offences before the court and pointed a loaded shotgun at five innocent persons before carjacking a woman at gunpoint.
[51] Dr. Woodside testified that multiple assessments conducted of Mr. Drake over the years have commented on his demonstrated a lack of empathy. These historical notes were consistent with what Dr. Woodside observed; Mr. Drake demonstrated a lack of empathy for his victims and a lack of responsibility and remorse for his actions. While Dr. Woodside agreed that Mr. Drake has verbalized expressions of remorse in the past, he highlighted that such expressions have not been accompanied by any discernible change in Mr. Drake’s behaviour.
[52] In my view, the evidence clearly supports the position jointly taken by counsel. Mr. Drake’s history shows a significant degree of callousness and indifference to the harm he may cause to his victims and a lack of concern for the impact of his actions on others. Even without expert evidence, a review of Mr. Drake’s unremitting criminality establishes beyond a reasonable doubt that Mr. Drake poses a future risk to the lives or safety of others based on his pattern of persistent aggressive behaviour that shows a substantial indifference to the reasonably foreseeable consequences of his actions to others. Dr. Woodside’s opinion regarding the ongoing and high risk posed by Mr. Drake simply confirms this conclusion.
Mr. Drake must be found to be a dangerous offender pursuant to ss. 753(1) (a)(i) and (ii) of the Criminal Code.
[53] Given my conclusion that Mr. Drake committed a serious personal injury offence and that he poses a future threat to the lives or safety of others based on the patterns of violence set out in both ss. 753(1)(a)(i) and (ii) of the Criminal Code I have no discretion at the designation stage: Mr. Drake must be found to be dangerous offender.
[54] I turn now to the issue in dispute, which is whether there is a reasonable expectation that any lesser measure than an indeterminate sentence can reduce the risk posed by Mr. Drake to the lives and safety of others to an acceptable level.
Issue in Dispute: The Penalty Phase
Is there a reasonable expectation that a lesser measure than an indeterminate sentence will adequately protect the public from the risk posed by Mr. Drake to the lives and safety of others?
[55] As noted previously, pursuant to s. 753(4.1) of the Criminal Code, I must sentence Mr. Drake to an indeterminate sentence unless I am satisfied “based on the evidence adduced” that there is a “reasonable expectation” that the risk he poses can be managed in the community by a lesser sentence.
[56] There is no onus on either party at the penalty stage: Boutilier, at para. 71; R. v. Gracie, 2019 ONCA 658, at para. 36. As the sentencing judge, I am obliged to conduct a “thorough inquiry” into the possibility of control in the community: Johnson, at para. 50; Boutilier, at para. 6. An indeterminate sentence is the last resort.
[57] The Crown argues that the evidence clearly establishes that an indeterminate sentence is required. The Crown submits that Mr. Drake’s offending is “driven by his core psychopathic personality traits and attitudes”, which are not likely to change. His violence is both impulsive and instrumental. While he now says he is sorry, he has said that before. There is nothing in the record to provide any meaningful confidence that Mr. Drake will suddenly change his ways. Mr. Drake, the Crown says, is a dangerous individual and there is no reasonable expectation that he can be controlled in the community.
[58] The defence counters by pointing out a number of other dangerous offender cases where the facts are “horrific” and the offenders “personify evil’: R. v. Medford, 2019 ONSC 5065; R. v. Hogg, 2011 ONCA 840. The defence argues that the facts in Mr. Drake’s case are far less serious, which supports that he should not receive an indeterminate sentence.
[59] But the issue is not whether Mr. Drake’s behaviour is less serious than some other offenders who have been designated dangerous. Rather, the issue is whether on the evidence adduced at the hearing there is a reasonable expectation that a lesser measure than an indeterminate sentence can adequately protect the public from the risk posed by Mr. Drake.
[60] The Crown submits that Mr. Drake has failed to adduce any evidence that his risk could be managed through a lesser measure. The defence counters that Mr. Drake testified, and said he was sorry, that he wants treatment and that he wants to turn his life around. Mr. Drake even testified that he was willing to take testosterone-reducing drugs, despite the significant side effects. This, defence counsel argues, shows his dedication to taking whatever treatment is required to change his ways. There have been times in the past when Mr. Drake has shown that he does well under strict supervision. Defence counsel thus urges me to sentence Mr. Drake to a further four to six years, having regard to the pre-sentence custody, followed by a long-term supervision order.
[61] A difficulty with the position that I should impose a fixed term sentence, however, is that 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.
[62] Here, I have no evidence that the sentence being proposed by defence counsel, or even a lengthier fixed-term sentence, followed by a long-term supervision order, would be sufficient to reduce the risk posed by Mr. Drake to an appropriate level.
[63] Instead, I have the uncontradicted expert evidence from Dr. Woodside to the contrary. His opinion was not undermined in cross-examination and I found his evidence to be both credible and reliable. After considering such things as risk factors, probabilities of recidivism and treatment prospects, Dr. Woodside concluded that Mr. Drake presented with a substantial (well-above/high) risk for violent reoffence. In Dr. Woodside’s opinion, there is no reasonable expectation of control in the community.
[64] In reaching this conclusion Dr. Woodside considered the clinical/dynamic and actuarial assessment of risk of Mr. Drake, which placed Mr. Drake as well above average/very high risk for violent recidivism compared with other previously violent offenders. Dr. Woodside was pessimistic that even intensive treatment and supervision would be sufficient to reduce Mr. Drake’s risk to an acceptable level at some point in the future. He considered five factors in coming to this determination.
[65] First, Mr. Drake’s diagnosis and prognosis. Dr. Woodside explained that individuals who score 25 or higher on the PCL-R show poorer response to treatment and supervision. Mr. Drake’s score of 33.7 means that he will have significantly greater difficulties persisting in treatment and complying with supervision as compared to other offenders. Moreover, Dr. Woodside noted that research also suggests that individuals with antisocial personality disorder, such as Mr. Drake, do not do as well in treatment as other offenders. Mr. Drake also has a severe substance abuse disorder. Dr. Woodside said that Mr. Drake’s primary diagnoses of psychopathy, antisocial personality disorder and severe substance abuse disorder are difficult to treat, with a poor prognosis associated with each. The combination renders Mr. Drake’s prognosis for successful treatment, and a reduction in his risk for further violent offending, as very poor compared with other offenders.
[66] Dr. Woodside also explained that while some studies have suggested a decrease in violence by offenders as they age, it is impossible to quantify the degree in the reduction of risk associated with aging beyond that already accounted for in the actuarial tools. In any event, he noted that given that Mr. Drake’s is now only 27, there would be almost 20 years before theoretically one might expect to see a reduction in violence.
[67] Second, Dr. Woodside considered Mr. Drake’s current motivation for treatment. Mr. Drake told him, and testified before me, that he was motivated to take treatment. Defence counsel argued that Mr. Drake’s position that he wants treatment is an important factor militating against an indeterminate sentence. Dr. Woodside did not discount this and noted that Mr. Drake’s purported willingness to take treatment was potentially a “modestly positive” factor. That said, Dr. Woodside also testified that there is “little to no” research to support that such expressions of a desire to pursue treatment or to comply with supervision are related to any reductions in recidivism. As a result, Dr. Woodside explained that positive expressions of motivation to take treatment, such as Mr. Drake’s, were “largely unhelpful” in attempting to determine who would be likely to benefit from treatment or supervision.
[68] Third, Dr. Woodside considered Mr. Drake’s previous response to treatment. Dr. Woodside noted that Mr. Drake has had significant treatment in the past, both while in the federal penitentiary and while in youth facilities during his adolescence. While Mr. Drake was often described as doing well in treatment in custody, he would stop taking recommended additional treatment once released to the community. Further, as Dr. Woodside noted, given Mr. Drake’s ongoing criminality, it appears clear that Mr. Drake has not internalized the information from his treatment. Dr. Woodside viewed Mr. Drake’s previous response to treatment as “very significantly negative” in terms of his manageability in the community and control of risk.
[69] Fourth, Dr. Woodside looked at Mr. Drake’s response to previous supervision. He also viewed this factor as “very significantly negative” as Mr. Drake has an “extremely poor history of response to previous supervision.” He has multiple breaches of court orders on his record, he has never abided by a court order and he committed the predicate offence while he was on probation.
[70] Fifth, Dr. Woodside looked at Mr. Drake’s employment prospects and supports within the community. He viewed this as “negative” in terms of his risk. He noted that Mr. Drake’s work history is essentially nil. He has few if any marketable skills. He has supported himself through criminal activity. He also has few supports in the community, aside from his mother. His one serious relationship as an adult ended with his being convicted of criminal harassment and uttering threats.
[71] Overall, given this bleak picture, Dr. Woodside was pessimistic that Mr. Drake’s risk to the public could be adequately managed in the community, even with a further fixed sentence followed by a long-term supervision order.
[72] Despite Dr. Woodside’s evidence, defence counsel argues that there is still “hope” that the risk Mr. Drake poses can be managed in the community. Further, defence counsel stresses Mr. Drake’s relatively young age and the devastating impact an indeterminate sentence will have on Mr. Drake. Given the severe nature of preventive detention, he implores me to take a chance on Mr. Drake.
[73] But the law is clear: a hope that the risk might be controlled in the community is not enough: Boutilier, at paras. 83 and 86; R. v. Sawyer, 2017 ONCA 779, at para. 37. The evidence adduced at the hearing overwhelmingly establishes that taking a chance on Mr. Drake would mean putting individuals in our community at risk of serious personal injury or death. As stated by Cronk J.A. in R. v. G.L., 2007 ONCA 548, at para. 70, “in 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.”
[74] Based on the record before me, I am not satisfied that there is a reasonable expectation that the risk posed by Mr. Drake to the lives or safety of others can be reduced to an acceptable level through a fixed sentence followed by a long-term supervision order. As a result, I must impose an indeterminate sentence.
Conclusion
[75] The Crown has established beyond a reasonable doubt that Mr. Drake committed a serious personal injury offence and that Mr. Drake constitutes a threat to the life, safety or physical or mental well-being of other persons based on two patterns of conduct.
[76] 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. Drake’s part respecting the reasonably foreseeable consequences to other persons of his behaviour.
[77] As a result, I find Mr. Drake to be a dangerous offender pursuant to s. 753(1) (a)(i) and (ii) of the Criminal Code.
[78] Finally, I have determined that an indeterminate sentence is required; there is no reasonable expectation that any lesser measure will suffice to adequately protect the public against the commission by Mr. Drake of murder or a serious personal injury offence.
Ancillary Orders
[79] Robbery is a primary designated offence. Pursuant to s. 487.051(1) of the Criminal Code, I order that Mr. Drake 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.
[80] A mandatory weapons prohibition pursuant to s. 109 of the Criminal Code also applies. Pursuant to s. 109(2), Mr. Drake is prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. Further, pursuant to s. 109(3), he is prohibited from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance for life.
[81] Pursuant to s. 760 of the Criminal Code, a copy of Dr. Woodside’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: July 3, 2020
Appendix A - Mr. Drake’s Criminal Record
OFFENCE DATE SENTENCE
Robbery with Violence FTC Recognizance 2008-03-05 40 Days & 20 Days under Supervision (29 Days PSC) & 18 Months Probation & 51(1) YCJA Prohibition Order
Robbery FTC Youth Disposition 2008-08-11 Time Served (46 Days) & 18 Months Probation & 51(1) YCJA Prohibition Order
Attempt to Assault with Intent to Steal FTC Youth Disposition X 2 2008-12-16 Time Served (86 Days) & 2 Years Probation & 51(3) YCJA Prohibition Order
Possession of Schedule II Substance 2008-09-09 12 Months Probation (12 days PSC)
Assault 2009-08-31 30 Days & 15 Days under Supervision & 18 Months Probation & 51(3) YCJA Prohibition Order
Aggravated Assault FTC Youth Disposition X 4 2010-02-16 Intensive Support & Supervision Order for 2 Years & (208 Days PSC) & 51(1) YCJA Prohibition Order
Robbery with Firearm Disguise with Intent FTC Prohibition Order 2010-10-26 4 Months & 2 Months under Supervision (357 Days PSC) & 12 Months Probation & 51(1) YCJA Prohibition Order
FTC Recognizance FTC Youth Disposition X 2 Possession of Schedule II Substance Assault Resist Arrest 2011-08-12 63 Days less 56 Days PSC & Sec 110 Prohibition Order
Armed Robbery X 2 Disguise with Intent X 2 FTC Prohibition Order 2013-01-24 4 Years & 17 Days (348 PSC) & Sec 109 Prohibition Order
Assault 2017-02-21 Time Served (30 Days PSC)
Criminal Harassment Utter Threats to Cause Bodily Harm 2017-04-28 60 Days (9 Months PSC) & 3 Years Probation & sec 109 Prohibition Order