ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DWIGHT WHITTAKER

Defendant/Respondent

Tania Monteiro, for the Crown

Brian Eberdt, for the Defendant/Respondent

Paula Rochman, Amicus Curiae

HEARD: December 10, 11, 14, 15, 16, 17, 18, 20, 2020, January 4, 5, 6, 7, 20, February 1, 2, 3, 5, 9, 10, 11, and March 2, 2021

REasons ON DANGEROUS OFFENDER APPLICATION

BYRNE J.

OVERVIEW

[1] The Respondent, Dwight Whittaker, was found guilty by a jury on December 6, 2018 for the following offences, which were committed on July 22 and 23, 2016:

(1) Robbery with a firearm;

(2) Point firearm;

(3) Possess loaded restricted firearm;

(4) Carry concealed weapon;

(5) Possess firearm with altered/defaced serial number; and

(6) Possess firearm unauthorized.

[2] The Crown takes the position that Mr. Whittaker’s conviction for robbery with a firearm contrary to s. 344 of the Criminal Code, R.S.C. 1985, c. C-46, is a “serious personal injury offence”. The Crown seeks to have Mr. Whittaker declared a dangerous offender and requests a determinate sentence of four to five years, followed by a ten-year long-term supervision order pursuant to s. 753.1 of the Criminal Code.

[3] Counsel for Mr. Whittaker does not dispute that the aforementioned conviction is a serious personal injury offence as defined under s. 752 of the Criminal Code but submits that the Crown has not proven beyond a reasonable doubt that Mr. Whittaker meets the dangerous offender criteria. However, defence counsel acknowledges that the Crown has met its evidentiary burden for a long-term offender designation and concedes that Mr. Whittaker should be declared as such. Counsel is seeking a provincial sentence in the range of 18 months to 2 years less a day, followed by a 2-year long-term supervision order.

DANGEROUS AND LONG-TERM OFFENDER LEGISLATION

[4] The following provisions of the Criminal Code relate to this application:

Application for finding that an offender is a dangerous offender

753 (1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied

(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing

(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour,

(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

Sentence for dangerous offender

(4) If the court finds an offender to be a dangerous offender, it shall

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

(b) impose a sentence for the offence for which the offender has been convicted — which must be a minimum punishment of imprisonment for a term of two years — and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or

Sentence of indeterminate detention

(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

If offender not found to be dangerous offender

(5) If the court does not find an offender to be a dangerous offender,

(a) the court may treat the application as an application to find the offender to be a long-term offender, section 753.1 applies to the application and the court may either find that the offender is a long-term offender or hold another hearing for that purpose; or

(b) the court may impose sentence for the offence for which the offender has been convicted.

Application for finding that an offender is a long-term offender

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 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

Sentence for long-term offender

(3) If the court finds an offender to be a long-term offender, it shall

(a) impose a sentence for the offence for which the offender has been convicted, which must be a minimum punishment of imprisonment for a term of two years; and

(b) order that the offender be subject to long-term supervision for a period that does not exceed 10 years.

If offender not found to be long-term offender

(6) If the court does not find an offender to be a long-term offender, the court shall impose sentence for the offence for which the offender has been convicted.

Long-term supervision

753.2 (1) Subject to subsection (2), an offender who is subject to long-term supervision shall be supervised in the community in accordance with the Corrections and Conditional Release Act when the offender has finished serving

(a) the sentence for the offence for which the offender has been convicted; and

(b) all other sentences for offences for which the offender is convicted and for which sentence of a term of imprisonment is imposed on the offender, either before or after the conviction for the offence referred to in paragraph (a).

[5] The onus is squarely on the shoulders of the Crown to prove beyond a reasonable doubt that Mr. Whittaker meets the definition of a dangerous offender.

EVIDENCE OVERVIEW

[6] The following exhibits were filed on the dangerous offender application:

(1) The consent of the Attorney General to the application;

(2) The report of Dr. Zohar Waisman, the assessing psychiatrist called by the Crown;

(3) The curriculum vitae of Dr. Waisman;

(4) The report of Dr. Derek Pallandi, the assessing psychiatrist called by the defence;

(5) A bound volume of s. 752.1 assessment motion materials filed by the Crown;

(6) A USB of materials filed by the Crown, which includes Mr. Whittaker’s criminal record and summaries, transcripts from other proceedings, youth record, court orders, an information package from the Ministry of the Solicitor General, an information package on community supervision and programming from the Correctional Service of Canada (CSC), jail misconducts, probation records, Children’s Aid Society (CAS) records, and adult mental health assessments;

(7) A copy of the Psychopathy Checklist-Revised (PCL-R) and scoresheet;

(8) A St. Lawrence Valley information sheet, admission referral form, and quick information reference sheet;

(9) The criminal record for Jonah Whittaker;

(10) An Agreed Statement of Fact regarding CSC’s supervision of long-term offenders;

(11) Toronto East Detention Centre (TEDC) records and notices of misconduct from December 2020, January 2021, and February 2021;

(12) TEDC certificates of completion for life skills courses;

(13) A letter from Ms. D. Young, Program Officer at TEDC;

(14) The affidavit and criminal record of Gianluca Salvati;

(15) The affidavit of Dwight Whittaker; and

(16) Letters written by Dwight Whittaker.

[7] In addition to the material filed as part of the record, I heard viva voce evidence from Dr. Waisman, a forensic psychiatrist who was called by the Crown to give expert opinion evidence on Mr. Whittaker’s diagnosis, risk, and prognosis.

[8] And I heard viva voce evidence from Dr. Pallandi, a forensic psychiatrist who was called by the defence to give expert opinion evidence on Mr. Whittaker’s diagnosis, risk, and prognosis.

[9] I also heard viva voce evidence from Mr. Whittaker in addition to his affidavit, which is contained in exhibit 14. Mr. Whittaker additionally made some final comments to the court after counsel had completed submissions, wrote out his life goals, and read two letters into the court record. All those documents have been made exhibits, which I have taken into account.

[10] Finally, I have considered the evidence from Mr. Whittaker’s trial on the predicate and related offences.

[11] The documentary evidence filed on this matter is voluminous, to say the least. All of it was filed with the consent of both parties and includes, but is not limited to, CAS records, police synopses, institution misconducts, and other occurrences. I want to be clear that although I am satisfied that this type of evidence meets the “credible and trustworthy” threshold to permit admission, it is not admitted as proven beyond a reasonable doubt. Each piece of evidence was still subject to a careful scrutiny to determine what weight it would be afforded and to what extent it would be relied upon: see R. v. Williams, 2018 ONCA 437.

[12] The offences for which I must sentence Mr. Whittaker occurred on July 22 and 23, 2016. On July 22, Mr. Whittaker pointed a firearm at Kunga Chonyi and, along with another unknown male, robbed him. The following is a summary of those offences as described by Mr. Chonyi in his testimony at trial.

[13] On July 22, 2016 at approximately 10:00 p.m., Mr. Chonyi attended the LCBO located at Queen Street and Dunn Avenue in the City of Toronto. Prior to entering, an unknown male spit on the sidewalk in front of Mr. Chonyi. After making his purchase, Mr. Chonyi waited outside the LCBO for a friend. While waiting, he was approached by a second male who he described as the first male’s friend. The second male was Mr. Whittaker. Mr. Whittaker approached Mr. Chonyi from behind and said, “Yo buddy, do you know Dice?” Mr. Chonyi did not know anyone named Dice. He thought he was referencing the game of dice and told Mr. Whittaker he did not have any money. He said Mr. Whittaker took offence to his response and became more aggressive. Mr. Whittaker said he was not joking and told Mr. Chonyi that he had better tell him if he knows Dice. Mr. Chonyi said the conversation lasted about 15 minutes, but all Mr. Whittaker wanted to know is if he knew Dice. He also said he had a gun.

[14] Mr. Chonyi and his friend started walking away. Mr. Whittaker and the unknown male, who was on a bicycle, followed behind. Mr. Chonyi’s friend started to run away and was chased by the unknown male on the bicycle. Mr. Whittaker caught up with Mr. Chonyi and accused him of hiding something from him because his friend ran away. The unknown male returned, at which point Mr. Whittaker accused Mr. Chonyi of lying to him about knowing a person named Dice and said he would shoot him or “blast” him. Mr. Whittaker asked Mr. Chonyi if he thought he was joking. Mr. Chonyi said he did not. Mr. Whittaker then put his hand inside a shoulder bag he had on his person and pressed what Mr. Chonyi believed was a gun against his hip. Mr. Chonyi said the object was hard and solid and felt like the top of a gun. As Mr. Whittaker did this, he said he would “blast” Mr. Chonyi. The conversation got more aggressive and Mr. Whittaker pressed the gun in the bag against Mr. Chonyi’s chest, repeating the words, “I will blast you.” The unknown male then punched Mr. Chonyi in the face, searched him, and stole his necklace and a cardholder. Nothing else was taken. During this incident, Mr. Chonyi received a call on his cell phone. Mr. Whittaker told him to put the phone on speaker and said that the caller should speak English. Mr. Whittaker thought he was speaking to Dice. After the call, Mr. Whittaker told Mr. Chonyi that this was his block and he should run away. Mr. Chonyi went home and called the police.

[15] On July 23, 2016 at approximately 10:30 p.m., members of the Major Crime Unit set up surveillance in the area of King Street and Dunn Avenue. At approximately 11:00 p.m., Mr. Whittaker was arrested in the intersection of King Street and Dunn Avenue. At the time of arrest, Mr. Whittaker was wearing a grey shoulder bag across his body from left to right. During the search incident to arrest, police found a loaded 12-gauge pump-action shotgun with the serial number removed inside that bag.

[16] On December 7, 2018, a jury found Mr. Whittaker guilty of armed robbery, point firearm, possession of a loaded restricted firearm, carry concealed weapon, and possession of a firearm with an altered/defaced serial number.

VICTIM IMPACT

[17] The victim on the predicate offence, Kunga Chonyi, has not provided a victim impact statement. However, having had the benefit of his viva voce testimony during the trial, where he explained the level of fear he experienced having a firearm pointed at him and his life threatened, I find that this incident was deeply traumatic and its effects will not be easily overcome.

PERSONAL CIRCUMSTANCES AND BACKGROUND OF OFFENDER

[18] Mr. Whittaker is currently 30 years old. He was 26 when he committed the predicate and other related offences. Mr. Whittaker was apprehended at birth by CAS due to concerns about his mother’s abandonment and neglect of her other two children, her extensive criminal activities, use of cocaine, and prostitution.

[19] Both Mr. Whittaker and his younger brother, Jonah, were placed with their maternal grandmother, Rebecca Clue. In 2002, both boys were apprehended by CAS and placed in care following her protracted physical and verbal abuse of the children, for which she was criminally charged and convicted in 2003. It was indicated that Ms. Clue had beaten the children and forced them to drink bleach.

[20] Mr. Whittaker was briefly placed with his maternal aunt, Patricia Bishop; however, she was not able to manage his behaviour and CAS intervened.

[21] Thereafter, from age 13 to 18, Mr. Whittaker was subject to approximately 28 placements in foster homes and other facilities. During this time, there was a last attempt to have him live with his aunt, which failed because of Mr. Whittaker’s unmanageable behaviour. Eventually, both his aunt and grandmother declined further assistance.

[22] Mr. Whittaker’s behaviour in the various facilities and foster homes was problematic, increasingly aggressive and oppositional, and often leading to emergency transfers. Much of this behaviour led to criminal charges.

[23] After the age of 18, Mr. Whittaker recalls living with different family members.

[24] Mr. Whittaker reports having little contact with his biological parents in his lifetime and that his father died in 2015.

[25] Mr. Whittaker’s education has been difficult, interrupted by multiple placements in foster homes and facilities and his own problematic behaviour, including his interface with the criminal justice system. His educational challenges have been identified and connected to severe attention and concentration difficulties. Although his formal education attainment is unclear, it appears he completed grade 8 but was expelled from school in 2007, at the age of 17. He has had no formal education since that time.

[26] Mr. Whittaker has no vocational history to speak of. He has been in receipt of ODSP for many years.

[27] Mr. Whittaker has been a user of cannabinoids but no other drugs. He is not known to misuse alcohol.

[28] Mr. Whittaker’s medical history is significant for obesity and anemia.

CRIMINAL HISTORY

[29] From 2003 until his arrest for the predicate offence in 2016, Mr. Whittaker accumulated a total of 36 criminal convictions and/or findings of guilt. Some of his criminal charges are for incidents that occurred in provincial custody. Mr. Whittaker also has several outstanding criminal charges that are yet to be dealt with.

[30] Mr. Whittaker’s youth record, which commenced when he was 13 years of age, includes convictions for assault, utter threats, and fail to comply. His adult record, which commenced in 2008, includes entries for assault, robbery, assault peace officer, trafficking, harassment, robbery, and fail to comply.

[31] What follows is a summary of Mr. Whittaker’s youth and adult criminal record, including the predicate and related offences.

Summary of Criminal Record

Location of Court and Date (yyyy/mm/dd)

Offence

Sentence

Belleville, Ontario

Youth Court

2003/07/15

Assault x3

35 days of pre-sentence custody, 18 months’ probation

Belleville, Ontario

Youth Court

2004/09/21

Assault

Fail to Comply with YCJ Sentence Order

Probation on each charge

Belleville, Ontario

Youth Court

2005/07/05

Assault

Utter Threats

12 days of pre-sentence custody, a further 32 days in custody, 16 days of community supervision, and 12 months’ probation

Belleville, Ontario

Youth Court

2005/11/29

Assault

Mischief

40 days in custody and 20 days of community supervision

Belleville, Ontario

Youth Court

2007/01/23

Utter Threats

Mischief

12 months’ probation

Toronto, Ontario

2008/09/18

Assault

13 days of pre-sentence custody and 18 months’ probation

Toronto, Ontario

2011/12/19

Assault Causing Bodily Harm

Fail to Comply Probation (x2)

KPBGB

Weapons

84 days of pre-sentence custody, a further 6 days in custody, and 2 years’ probation

Toronto, Ontario

2012/03/07

Assault

1 day

Toronto, Ontario

2013/01/08

Criminal Harassment

Animal Cruelty

Fail to Comply with Probation

Fail to Comply with Recognizance

Utter Threats

Assault P.O.

45 days of pre-sentence custody, a further 30 days in custody, and 12 months’ probation

15 days of pre-sentence custody, a further 30 days in custody, and 12 months’ probation

Toronto, Ontario

2013/11/28

Disarm P.O

Robbery

Fail to Comply with Probation

Possession Sch. II Substance

404 days of pre-sentence custody, a further 75 days in custody, and 2 years’ probation

Toronto, Ontario

2014/03/04

Utter Threats

Fail to Comply

18 days of pre-sentence custody and a further 20 days in custody

Toronto, Ontario

2014/11/06

Utter Threats

Fail to Comply with Probation

Suspended sentence and 2 years’ probation on top of 10.5 months of pre-sentence custody

Toronto, Ontario

2018/12/06

Robbery with Firearm etc.

The predicate offence

Toronto, Ontario

2019/06/05

Uttering Threat

Resist P.O. x4

80 days in custody (credited as 120 days)

[32] Although Mr. Whittaker has served provincial sentences on numerous occasions, he has not been sentenced federally.

INSTITUTIONAL HISTORY

[33] Mr. Whittaker has accrued an array of misconducts while provincially incarcerated. These include assaults, threatening, disobeying orders, and other things. Principally, the targets of this aggression and other problematic behaviours have been Correctional Officers (COs). The majority of these misconducts are contained in exhibit 6 on the USB, and the remainder are contained in exhibits 15, 21, and 22.

[34] In short, Mr. Whittaker has accumulated 45 misconducts since his incarceration in July 2016. They break down as follows:

2016 – 6 misconducts or occurrences of violence

2017 – 10 misconducts or occurrences of violence

2018 – 17 misconducts of occurrences of violence

2019 – 6 misconducts or occurrences of violence

2020 – 4 misconducts or occurrences of violence

2021 – 2 misconducts or occurrences of violence

[35] In his affidavit, Mr. Whittaker stated that although he does not recall all the misconducts, he does take issue with the incidents reported on August 15, 2016, January 17, 2017, June 27, 2018, May 13 and June 3, 2019, and April 6, 2020. In each instance, he states he has been wrongly accused either because he was the victim or because he was targeted by the COs involved.

[36] Gianluca Salvati, a fellow inmate with an extensive criminal record, testified and provided an affidavit in support of Mr. Whittaker. Mr. Salvati has known Mr. Whittaker for nine years; they met at the Don Jail. However, the time they have spent in each other’s company over those nine years has been limited. Mr. Salvati says they spent two weeks as cell mates and two weeks on the same range at the Toronto South Detention Center (TSDC). Following that, they were cell mates for a few weeks and on the same range for a few months at the TEDC. In his affidavit, Mr. Salvati states that, based on his observation, COs have developed a bias towards Mr. Whittaker. He says that they are harder and stricter with Mr. Whittaker than the other inmates. He says Mr. Whittaker is often the target of bullying and is disrespected by both inmates and COs.

[37] What follows is a summary of the misconducts and occurrences Mr. Whittaker has accumulated since his incarceration for the predicate offence on July 23, 2016.

2016 Institutional Occurrences/Misconducts

• August 15, 2016 – Occurrence – Mr. Whittaker requested to speak with staff to complain about treatment. In the course of that conversation, he was verbally aggressive and abusive and failed to comply with direction. When the nurse was called, he was verbally abusive to her as well.

• August 15, 2016 – Occurrence – Mr. Whittaker failed to comply with a direction to remove a sheet from his bed. When his request to use the phone was denied, he became agitated. He also refused to remove a shirt from his head for religious reasons. He was told he could fill out a form to speak to the Chaplain in that regard. He refused and then refused to move his hands so the hatch to his cell could be secured. When told he would be moved to segregation, he refused to go peacefully and began flooding his cell.

• August 30, 2016 – Occurrence – Mr. Whittaker was verbally abusive and threatened to spit on staff because he was not given enough toilet paper.

• September 30, 2016 – Misconduct – Mr. Whittaker threatened to stab and kill COs. Mr. Whittaker said he does not remember this and that he has mental health issues. Dr. Nesoviz was consulted and stated that Mr. Whittaker is manipulative – Guilty.

• December 12, 2016 – Misconduct – Mr. Whittaker assaulted another inmate, was verbally abusive to staff, and failed to follow orders given by staff – Guilty.

2017 Institutional Occurrences/Misconducts

• January 17, 2017 – Misconduct – Three inmates were fighting. There was an allegation that Mr. Whittaker was demanding food and money for the phone from other inmates and a fight ensued. Mr. Whittaker said he was defending himself – Not guilty.

• January 18, 2017 – Misconduct – Mr. Whittaker was disgruntled about being locked down due to an allegation of misconduct from the day before. When the CO tried to talk to him to calm him down, Mr. Whittaker spat in his face, grabbed his arm, and dug his nails in, breaking the skin. Once the officer freed himself from his grip, Mr. Whittaker continued to punch and kick the door to his cell. Mr. Whittaker denied the allegation and said he acted in self-defence – Outcome unclear.

• January 19, 2017 – Misconduct – Mr. Whittaker was verbally abusive and spitting at a CO – Guilty.

• January 31, 2017 – Occurrence – Mr. Whittaker pressed the call button. When staff arrived, he became verbally abusive and made threats of physical harm. He refused to comply with orders given by the CO to move to the back of his cell so they could provide medication. He complained that he could not breathe; however, when the nurse arrived, he continued to be noncompliant with orders and refused to speak to the nurse – It does not appear from the records that a misconduct was filed.

• March 31, 2017 – Misconduct – Mr. Whittaker was involved in a fight with another inmate – Not guilty.

• May 23, 2017 – Occurrence – Mr. Whittaker was involved in a physical altercation with other inmates.

• August 22, 2017 – Occurrence – Mr. Whittaker was involved in a fight with another inmate.

• August 27, 2017 – Misconduct/Occurrence – Mr. Whittaker made verbally abusive comments to a CO when told to report to his cell – Moved to segregation.

• September 18, 2017 – Occurrence – Mr. Whittaker was involved in a fight with another inmate.

• October 2, 2017 – Misconduct – Mr. Whittaker was threatening and aggressive towards a CO – Guilty, moved to segregation.

2018 Institutional Occurrences/Misconducts

• March 1, 2018 – Occurrence – Mr. Whittaker requested to be relocated. A CO indicated that Mr. Whittaker had been very good since coming onto that unit.

• April 5, 2018 – Occurrence – Another relocation request by Mr. Whittaker. The report simply indicates he was relocated without incident.

• April 25, 2018 – Occurrence – Mr. Whittaker requested to be transferred to the TEDC.

• May 22, 2018 – Occurrence/Misconduct – Mr. Whittaker threatened to kill a CO – Moved to segregation.

• June 27, 2018 – Occurrence – Mr. Whittaker fought with another inmate – Moved to segregation.

• July 2, 2018 – Misconduct – Mr. Whittaker failed to comply with a CO and then punched him in the face – Guilty, 15 days’ segregation.

• July 24, 2018 – Misconduct – While a CO was collecting meal trays, Mr. Whittaker threw urine and water on him, hitting him in the face and chest area – Guilty, four days’ confinement.

• July 24, 2018 – Misconduct – Mr. Whittaker threatened to kill staff – Pleaded guilty, saying he was mad, four days’ segregation.

• August 6,2018 – Occurrence – Use of force – Mr. Whittaker was verbally abusive and threatened staff.

• August 7, 2018 – Misconduct – Mr. Whittaker sprayed an unknown liquid through his cell hatch and hit a CO on their right arm – Moved to segregation.

• August 9, 2018 – Occurrence – Mr. Whittaker threw a wet ball of toilet paper from his cell, hitting a mental health nurse, who was attending to another inmate, in the head. Mr. Whittaker was then observed making “horking” sounds, as if he were going to spit. The nurse disengaged and Mr. Whittaker threatened to spit on the CO – Guilty, 15 days’ confinement.

• August 13, 2018 – Misconduct – Mr. Whittaker removed the blade from a razor – Admitted misconduct, ten days’ confinement.

• November 5, 2018 – Occurrence – Use of Force – Mr. Whittaker was to attend court on this day and was disruptive and uncooperative.

• November 8, 2018 – Occurrence – Aggressive noncompliant behaviour – Mr. Whittaker charged his cell hatch but was determined not to have committed assault.

• November 13, 2018 – Misconduct – Mr. Whittaker returned from court and believed that his property had been searched in his absence. He became verbally abusive and threatening towards the CO – Moved to segregation.

• November 22- 2018 – Occurrence – Mr. Whittaker refused to attend court because he “[w]ants a new judge”.

• November 24, 2018 – Occurrence – Mr. Whittaker refused to let go of his slipper, which is not permitted in segregation. He then became verbally abusive to the CO.

• November 24, 2018 – Occurrence – Mr. Whittaker threw urine on another inmate – Placed on a misconduct for assault.

• November 26- 2018 – Occurrence – Mr. Whittaker initially refused to go to court.

• December 8, 2018 – Misconduct – Mr. Whittaker refused to follow the order to turn over the phone and threatened the CO with physical harm.

2019 Institutional Occurrences/Misconducts

• January 4, 2019 – Occurrence – Mr. Whittaker refused to go to court.

• February 18, 2019 – Occurrence – Mr. Whittaker gives CO the finger and then became verbally abusive.

• February 23, 2019 – Occurrence – Mr. Whittaker used threatening and aggressive language towards a CO.

• March 6, 2019 – Misconduct – Mr. Whittaker took a garbage bag into his cell and refused to return it – Guilty.

• March 7, 2019 – Occurrence – Mr. Whittaker was yelling and harassing other inmates.

• May 13, 2019 – Misconduct – Mr. Whittaker had 12 pills located in his cell. This medication had been given to him as part of a health care plan, but he was not entitled to hoard it in his cell – Admitted guilt.

• June 3, 2019 – Misconduct – Mr. Whittaker was being escorted in from the yard along with a number of other inmates and was about to be searched when a physical altercation erupted, during which COs were pushed and punched – Pleaded guilty, 15 days’ confinement.

2020 Institutional Occurrences/Misconducts

• February 21, 2020 – Misconduct – Mr. Whittaker wanted to use the washroom but was told he had to wait as none were available. He became angry and verbally abusive – Verbal reprimand.

• March 10, 2020 – Misconduct – Pills and marijuana were found inside Mr. Whittaker’s cell – Pleaded guilty, loss of canteen for one week.

• April 6, 2020 – Misconduct – Mr. Whittaker failed the body scan and was placed on a misconduct for bringing contraband into the institution.

• September 16, 2020 – Misconduct – Mr. Whittaker was given a diet meal he did not like. He became angry and verbally abusive to the staff – Guilty, three days’ confinement.

• February 4, 2021 – Occurrence/Misconduct – During a routine cell search, five sharpened pieces of plastic were found inside one chip bag and two sharpened pieces of plastic were found inside another in Mr. Whittaker’s cell – Outcome pending.

• February 4, 2021 – Occurrence/Misconduct – A CO was serving Mr. Whittaker with a notice of misconduct in relation to events that happened earlier that day. Mr. Whittaker responded by spitting on the CO’s pants and became verbally abusive – Outcome pending.

MENTAL HEALTH HISTORY

[38] In 2002, at the age of 12 years and 10 months, Mr. Whittaker was assessed at the Youthdale Institute for Pediatric Neuroscience. He was admitted on an inpatient basis to the Youthdale Acute Support Unit from November 21 to December 16, 2002.

[39] Admission was prompted by a variety of aggressive and behavioural problems Mr. Whittaker demonstrated following his CAS apprehension from the care of his maternal grandmother. Following this comprehensive assessment, the principal diagnoses were Post-Traumatic Stress Disorder (PTSD), Adjustment Disorder with Disturbance of Mood and Conduct, and Parent/Child Relationship Difficulties.

[40] Mr. Whittaker’s cognitive functioning was also assessed during this time. He was found to be functioning within the very upper limit of the intellectual deficient range; however, when testing error was considered, the finding was a possible borderline range of intellectual functioning.

[41] At the time of this assessment, Mr. Whittaker had already been identified at school as having special needs and a developmental lag. Projective testing indicated that he tended to “black and white” thinking and was prone to minimization. In other words, he often coped with issues and situations by thinking in a simplistic and concrete way while minimizing his feelings. This was likely related, in part, to his lower cognitive functioning. However, the overall assessment revealed that his coping style was one of “flight or fight”. Specifically, his primary defence was avoidance, but when he was unable to utilize that defence, he was likely to respond with “fight” (an explosive outburst).

[42] Mr. Whittaker was prescribed antipsychotic medication to help curb his aggression. This medication appears to have had a very limited effect. It is well documented that Mr. Whittaker was noncompliant and resistant to taking medication from time to time, and that this behaviour was endorsed and encouraged by family members.

[43] In December 2002, Mr. Whittaker began one-hour, bi-monthly counselling sessions with Mr. Kerby. During the early sessions, Mr. Kerby reports, Mr. Whittaker was mostly unresponsive, and so the decision was made to take him to a farm in the hopes that he would connect with the animals. Mr. Whittaker and Mr. Kerby had a total of five farm visits. Although Mr. Whittaker did eventually interact and connect with the animals, he was resistant to any discussion that related back to him. The final report from Mr. Kerby indicates that Mr. Whittaker had become noncommunicative and did not engage during their sessions.

[44] In 2005, CAS reported that Mr. Whittaker had become quite unsettled and his aggressive behaviour towards staff and peers was escalating, resulting in more frequent use of restraints to control him. Moreover, Mr. Whittaker’s aunt was not monitoring his medication on weekend visits and there was a heightened concern that Mr. Whittaker was not taking medication on those visits.

[45] Mr. Whittaker started seeing Dr. Dancel, a psychiatrist, in September 2005 after an angry outburst in CAS care. The objective was to provide Mr. Whittaker with a safe place to talk and seek advice. In September 2005, Dr. Dancel diagnosed Mr. Whittaker with a mood disorder and prescribed that his medication be changed to lithium.

[46] CAS documented that on March 5, 2006, Mr. Whittaker stopped taking his medication and refused to continue with it because his family said he did not need it.

[47] In June 2006, Mr. Whittaker had individual counselling with Pat Lee every other week in addition to his monthly sessions with Dr. Dancel. This counselling focused on social skills and other youth issues. The skills focus was on basic self-care, like brushing teeth and doing chores. Mr. Whittaker was reported to be doing better in these areas. It was noted that there were occasions when he did not feel like attending these sessions.

[48] In November and December 2006, New Ark residence, where Mr. Whittaker was housed, reported that Mr. Whittaker had shown great progress in all aspects of his programming. He was taking his medication and his verbal and physical outbursts had diminished significantly.

[49] In January 2007, upon returning from a family weekend visit, Mr. Whittaker indicated to staff at New Ark that he no longer wanted to see Dr. Dancel and did not need to take medication. Further, Mr. Whittaker no longer wanted to stay in CAS care because he was turning 16 on January 22, 2007. On February 13, 2007, Mr. Whittaker received a temporary order terminating the Crown wardship order and was placed in the care of his maternal aunt, Ms. Bishop.

[50] On June 18, 2007, Mr. Whittaker, at his request, was readmitted to CAS care. He was 17 years and 6 months old. After living with his aunt for a short period of time, he was kicked out and started living with friends. He became involved in violence at school, which led to criminal charges. He was documented as being angry, agitated, violent, and physically aggressive to others around him. CAS reported that his sudden changes in behaviour were often unpredictable. He was often triggered when making demands for things like food and money. He was triggered by the imposition of limits and expectations. Further, there was a great deal of concern about Mr. Whittaker’s mental health and his lack of collaboration with his medical treatment. However, it was noted that in the past, when Mr. Whittaker did collaborate with his medical treatment, he presented as a likable youth working on his personal goals and focused on his wellbeing and that this considerably reduced his physical assaults and aggressive behaviour. Very quickly after being readmitted to New Ark, Mr. Whittaker had to be transferred on an emergency basis to a different facility; he was increasingly uncooperative, unmanageable, and nonparticipating in programming. It was reported that Mr. Whittaker’s treatment of staff and peers was aggressive, intimidating, and threatening. Mr. Whittaker indicated that when he turned 18, he wanted to live independently.

[51] June 2007 until January 2008 proved to be a very turbulent time for Mr. Whittaker. He was arrested and charged numerous times during this period. He failed to attend for a psychiatric assessment as required by his bail. Moreover, he failed to follow through on his agreement to sign up for school and attend for medical and other counselling services.

[52] In February 2009 through to April 2011, Mr. Whittaker was referred to the New Outlook Program, a youth service that required him to meet with the staff psychiatrist, Dr. Langley. At the time of the discharge report, Mr. Whittaker had not had any contact with the report writer for an unknown period of time.

[53] On January 22, 2011, CAS reported that Mr. Whittaker, then 21 years of age, was a young man who tended to defy authority and refused to attend medical appointments when required. Further, they reported that Mr. Whittaker had no interest in finishing school.

[54] In 2011 and 2012, Dr. Levy and the COTA Health ACT team were involved transiently with Mr. Whittaker as part of a probation order. Dr. Levy opined that Mr. Whittaker appeared to have a major mental illness but it was not clear whether it was Bipolar I Disorder, Schizoaffective Disorder, or a substance induced psychotic disorder. On July 7, 2011, Dr. Levy said that Mr. Whittaker was not taking any medication as he did not like the side effects. He also said that there did not appear to be any safety concerns or imminent risk to Mr. Whittaker or others.

[55] In November 2013, Mr. Whittaker underwent a court ordered evaluation conducted by Dr. MacDonald at the Centre for Addiction and Mental Health. Dr. MacDonald reported that there was nothing to suggest Mr. Whittaker had a serious mental disorder, aside from a hint of paranoia. He opined that the most likely diagnosis was a Cluster B personality disorder, i.e. including antisocial features. He did not believe that Mr. Whittaker had a Bipolar Affective Disorder or other major mental illness. In terms of future prospects, his prognosis was ominous. Dr. MacDonald stated that Mr. Whittaker was not a good candidate for psychiatric treatment in the foreseeable future. He concluded his report by saying: “Currently, however, I have a sense of struggling to provide something positive to say about this young man and hold much concern that his future does not hold much positive and that he may be destined for a substantial history of future conflict with the law.”

[56] On February 11, 2015, Mr. Whittaker attended for a psychological assessment as directed by his probation. The assessment interview was conducted by Rosemary Keogh, a psychologist. Ms. Keogh reported that Mr. Whittaker was difficult to interview. He refused to answer many questions and the answers given were one-word responses. He was not taking his medication, and this was of concern to Ms. Keogh. She concluded that Mr. Whittaker was in need of psychiatric treatment but that he was not amendable to this at the time of the interview.

[57] In June and July 2016, probation required that Mr. Whittaker meet with Ms. Tinney, a clinician with Mental Health and Justice Treatment and Support Services. He was to attend for these sessions every other week. In July 2016, Ms. Tinney had no choice but to close the file, as Mr. Whittaker had failed to attend most of the sessions and she had been unable to complete even the intake assessment. Mr. Whittaker attended five sessions over the course of that year. On the occasions when Mr. Whittaker did attend, Ms. Tinney reported that he was guarded, angry, provided only limited information, and that she was having trouble developing any kind of rapport with him. The lone exception occurred on their last meeting on May 15, 2016, when Ms. Tinney was of the view that they were starting to establish a connection. However, the meeting ended with Mr. Whittaker refusing to participate in a psychiatric assessment or take mediation. Ms. Tinney did not meet with Mr. Whittaker again after this date.

EXPERT EVIDENCE

[58] Two very experienced, highly qualified forensic psychiatrists submitted reports and testified on this hearing. Although there are many points of agreement between the two experts, they offer different opinions as to the ultimate diagnosis and treatment path to be followed. Both agree that absent treatment, Mr. Whittaker remains at a high risk to violently reoffend.

[59] Dr. Waisman prepared a court ordered psychiatric assessment of Mr. Whittaker pursuant to s. 752.1 of the Criminal Code on July 28 and October 29, 2019. As part of that assessment, Dr. Waisman met with Mr. Whittaker. However, Mr. Whittaker refused to participate or speak with Dr. Waisman; he said he did not trust psychiatrists. As a result, Dr. Waisman’s report is based on a paper review of the file. Dr. Waisman readily acknowledged that the lack of a direct interview limits the value of his reported opinion. Additionally, he indicated in his original report that he could not rule out a diagnosis of a major mental illness for Mr. Whittaker. However, after reading Dr. Pallandi’s report, he retracted that position. In his testimony, he was firmly of the view that Mr. Whittaker does not have a major mental illness.

[60] Dr. Pallandi was retained by Mr. Whittaker and asked to provide his opinion on any mental health conditions Mr. Whittaker may have, the level of risk he poses, and how that risk might be managed in the future. Dr. Pallandi, in addition to a paper review of the file, met with Mr. Whittaker on four separate occasions for a total of nine hours and implemented and scored Mr. Whittaker on the PCL-R and Violence Risk Appraisal Guide (VRAG).

Risk Assessment Tools

[61] Scientific research consistently shows that actuarial or structured methods of risk assessment are the most accurate. The variable most frequently associated with risk for violent and non-violent criminal recidivism is psychopathy, and the Psychopathy Checklist-Revised is the tool most often used to determine if an individual is psychopathic and at a higher risk to reoffend. The PCL-R is a 20-item checklist scored numerically out of 40. A score of 30 is considered to be the threshold for psychopathy, though scores in the high 20s indicate significant psychopathic traits. For comparison, the average score of a person in the community is four or five. The PCL-R is also necessary to score the Violence Risk Appraisal Guide. The PCL-R is the highest weighted element of the VRAG, a widely used and accepted actuarial risk assessment tool. The VRAG provides a percentage score of risk of recidivism over a ten-year period. An accurate assessment depends on sufficient information being provided by the assessed individual to an experienced assessor.

[62] In this case, Dr. Pallandi scored Mr. Whittaker on the PCL-R and VRAG. Given his lack of contact with Mr. Whittaker, Dr. Waisman did not have enough information to conduct these assessments. Dr. Waisman for the most part agrees with and adopts Dr. Pallandi’s implementation and scoring conclusions.

[63] Mr. Whittaker’s score on the PCL-R was 24 out of a possible 40 points. This score is not only above that of the average person, but above the average within the prison population. It does, however, fall short of warranting an additional diagnosis of psychopathy.

[64] Mr. Whittaker’s score on the VRAG was +15, which places him in the 7th of 9 ascending categories of risk and in the 83rd percentile when compared with other prison inmates. Dr. Pallandi reports that scores in the 7th category of risk in the development sample were associated with risks of violent recidivism of 64 percent over 10 years of opportunity.

[65] The Level Service Inventory – Ontario Revised (LSI-OR) is an assessment tool widely used by correctional practitioners to classify inmates into minimum, medium, or maximum institutional security streams. It takes into account the needs and the risk of the offender. In addition, the tool identifies criminogenic factors that can be worked on by the inmate to reduce that risk. Mr. Whittaker’s LSI-OR score placed him in the high or very high risk to reoffend range. While Dr. Pallandi and Dr. Waisman took different views of the significance of this score in their respective assessments, the bottom line is that it is not inconsistent with Mr. Whittaker’s scores on the other assessment tools utilized.

Diagnosis

[66] Dr. Pallandi and Dr. Waisman agree that Mr. Whittaker has a complex PTSD stemming from years of exposure to violence and abuse as child. There is no cure for PTSD; treatment is focused on managing the illness, not eradicating it. The type of PTSD that Mr. Whittaker has is complex and thereby difficult to treat. Both experts agree that he will require multimodality treatment.

[67] Dr. Pallandi agrees with Dr. Waisman’s opinion that Mr. Whittaker probably learned that violence is an acceptable and effective method to have his needs met and that his early experiences of neglect likely taught him that he is very much alone in life and others are not to be trusted. This might have led to an inability to form and sustain meaningful and functional emotional relationships.

[68] Dr. Pallandi and Dr. Waisman also agree that Mr. Whittaker’s level of intelligence is borderline and the likelihood that he has other learning disabilities, including Attention Deficit Hyperactivity Disorder, is great.

[69] Both experts agree that Mr. Whittaker has engaged in antisocial behaviour and has characterological or personality traits that can be defined as antisocial. Though Dr. Pallandi does not wholeheartedly agree with Dr. Waisman’s formal diagnosis of Cluster B Antisocial Personality Disorder (APD), he does not disagree with Dr. Waisman’s view that Mr. Whittaker likely has a personality disorder with antisocial traits.

[70] There is no dispute as between the experts that Cluster B APD is defined in the DSM-5 as follows:

• A pervasive pattern of disregard for and violation of the rights of others, occurring since age 15, as indicated by three (or more) of the following:

(1) Failure to conform to social norms with respect to lawful behaviours, as indicated by repeatedly performing acts that are grounds for arrest.

(2) Deceitfulness, as indicated by repeated lying, use of aliases, or conning others for personal profit or pleasure.

(3) Impulsivity or failure to plan ahead.

(4) Irritability and aggressiveness, as indicated by repeated physical fights or assaults.

(5) Reckless disregard for safety of self or others.

(6) Consistent irresponsibility, as indicated by repeated failure to sustain consistent work behaviour or honour financial obligations.

(7) Lack of remorse, as indicated by being indifferent to or rationalizing having hurt, mistreated, or stolen from another.

Additionally, the individual must be at least 18 years of age and there must be evidence of the onset of a conduct disorder before the age of 15. The occurrence of antisocial behaviour is not exclusive to Schizophrenia or Bipolar Disorder.

[71] As Dr. Waisman explains, a diagnosis of APD is contingent on two components. First, there must be history of conduct disorder. A conduct disorder is a pattern, which develops before the age of 15, of destruction of property, theft, deceitful behaviour, aggression, and/or rule violation. There is no dispute as between the experts that Mr. Whittaker’s history satisfies this requirement. The second component requires at least three of the above-listed criteria be satisfied. Dr. Waisman concluded that Mr. Whittaker met more than three of the listed criteria and, on that basis, made a formal diagnosis of APD. Since the listed diagnostic criteria are behaviour based, he explained that he could make a diagnosis in the absence of a direct interview by using Mr. Whittaker’s file material combined with information gathered and provided by Dr. Pallandi.

[72] In cross-examination, Dr. Pallandi agreed that Mr. Whittaker meets four out of the seven criteria for APD: one, three, four, and seven. Dr. Pallandi equivocated on criterion six, consistent irresponsibility, and disagreed with the suggestion that Mr. Whittaker easily satisfies criterion five, reckless disregard for the safety of self or others. Dr. Pallandi testified that this criterion is “tricky” in that it embraces the idea of risk or reckless disregard for the public and not a specific individual. Dr. Pallandi reluctantly agreed that carrying a loaded firearm in public would amount to a reckless disregard for safety but then added that the spirit of the criterion is focused on habitual behaviour or a pattern of behaviour, which was incongruent with Mr. Whittaker’s conduct.

[73] With the greatest respect to Dr. Pallandi, his reluctance to agree that Mr. Whittaker’s conduct amounted to a disregard for the safety of others and his explanations for that opinion were somewhat confounding. A simple review of Mr. Whittaker’s criminal entries, institutional misconducts, and courtroom behaviour during the jury trial clearly illustrates repeated conduct that puts himself or members of the public in danger, satisfying criterion five as set out in the DSM-5.

[74] Equally confounding is Dr. Pallandi’s reluctance to accede to Dr. Waisman’s diagnosis of APD. In his report, Dr. Pallandi says he equivocated on making a formal diagnosis because Mr. Whittaker’s exposure to adverse experiences could render understandable his antisocial behaviour. When questioned about this resistance, he offered that he was concerned that if Mr. Whittaker was diagnosed with APD, other important clinical factors might be ignored in treatment. This response is difficult to reconcile with Dr. Pallandi’s evidence that diagnosis of one disorder does not exclude diagnosis or treatment for others. In fact, it is common for a person to have and be treated for more than one disorder at the same time. Moreover, and specific to this case, Dr. Pallandi did not disagree with Dr. Waisman’s opinion that PTSD and APD often coexist. He also stated that Dr. Waisman had testified that APD is untreatable and that there would be nothing left to do but incarcerate Mr. Whittaker. Dr. Pallandi did not want that to happen, which was part of why he did not agree with the diagnosis of APD.

[75] This makes no sense given the evidence from Dr. Waisman was that APD, like PTSD, is treatable but not curable. At no point did he suggest there would be no treatment available for Mr. Whittaker under this diagnosis. Quite the opposite, he suggested a long-term intensive plan of care. In my struggle to appreciate Dr. Pallandi’s evidence, one theme emerges: his propensity to minimize the conduct and behaviour of Mr. Whittaker. By way of example, in his report and testimony, Dr. Pallandi takes the position that the gunpoint robbery that forms the basis of the predicate offence was not a robbery at all and the victim was unharmed. He says it is self-evident that the gun was not used by Mr. Whittaker. This is in complete contrast to the evidence at trial and the facts as I have found them. Other examples of minimization include when Dr. Pallandi was presented with court transcripts where Mr. Whittaker had clearly been disrespectful, openly hostile, aggressive, and threatening towards the presiding Justice. Dr. Pallandi downplayed these incidents, stating that Mr. Whittaker was simply voicing his displeasure with the court proceedings. Dr. Pallandi did ultimately, albeit reluctantly, concede that the predicate offence amounted to a robbery in law. However, he still seemed committed to this theme of minimization, which was pervasive throughout his testimony. Often, when challenged, his tone verged on combative.

[76] On balance, I prefer and rely upon Dr. Waisman’s differential diagnosis of APD and PTSD. Notwithstanding Dr. Pallandi’s reluctance to join with Dr. Waisman’s diagnosis, given their aforementioned points of agreement it may be a distinction without a difference. Both experts agree that, absent treatment, Mr. Whittaker is at high risk to violently reoffend.

TREATMENT

St. Lawrence Valley Correction and Treatment Centre

[77] St. Lawrence Valley Correction and Treatment Centre has been specially designed as a safe and secure therapeutic environment. It is a medium-security hospital-like setting where nursing staff, rather than correctional staff, are responsible for the general case management, programming, and direct supervision of the residents.

[78] Dr. Jean Marie Riveyre has been the clinical director of St. Lawrence Valley since 2018. He testified that it is a 100-bed facility that, due to the pandemic, has a capacity of only 80 beds. He explained that admission is not automatic. An offender must apply and be approved by the committee. The committee reviews all documents and prior assessments and looks for some proof or confirmation of motivation on the part of the offender. The waitlist for routine admissions is currently 3-4 weeks. Once admitted, the inmate is subject to a 14-day quarantine. Dr. Riveyre indicated that the treatment model is based on a three-month program, after which offenders return to regular jail to serve the remainder of their sentence. St. Lawrence Valley does not offer any vocational training outside of offender participation in kitchen and laundry duties. Currently, they do not offer any education training or upgrades. It appears that very little is offered in the way of discharge assistance or planning. Dr. Riveyre said that they will do shelter referrals if an individual is homeless, but most people have family to return to.

[79] St. Lawrence Valley treats offenders with severe PTSD and APD. Although they offer a wide variety of treatment, the expectation is that offenders participate in group-type therapy, and refusal to participate could result in discharge. Further, they have a low tolerance for aggressive acts; they do not tolerate fighting with peers or disrespecting the staff. Repeated noncompliance could result in discharge from the facility. In the event of discharge, an offender is not entitled to re-apply for two years.

Correctional Service of Canada

[80] CSC is the federal government agency responsible for administering court-imposed sentences of two years or more. Their management of offenders is an individualized, dynamic process beginning with a comprehensive intake assessment that results in a multidisciplinary correction plan outlining treatment and correction interventions throughout the sentence. CSC has a number of world-renowned, accredited correctional programs designed to contribute to an offender’s safe reintegration into society by reducing the likelihood of recidivism. Moreover, CSC ensures that all offenders, including those with mental health needs and intellectual or learning disabilities, are appropriately accommodated and have access to correctional interventions, programs, and services to address their needs. They also have high-intensity correctional programs for offenders assessed as having a high risk to reoffend.

[81] The Integrated Correctional Program Model (ICPM) is an innovative and holistic approach to programming at the federal level. It consists of three distinct streams, all of which are offered at moderate and high levels of intensity to address the specific criminal risks of the offender. The multi-target program is relevant to this application. Each stream is comprised of components that offer continuous intervention from the start of sentence to warrant expiry, as needed. These include an introductory phase, a motivational component, a community program, and a maintenance component to complement the main program.

[82] ICPM is based on 91 sessions of approximately 2.5 hours in length. If an offender refuses to participate, does not complete the program, or needs more support, there is a motivational program of four sessions, one hour each, designed around the reasons the offender did not complete the program. The objective of the motivational program is to have the offender return and complete the ICPM. There is no limit to how many times an offender can return to or redo the program. In the event an offender is unsuccessful or does not attend for programming, there are a number of maintenance and community programs they will be referred to.

[83] In addition, CSC operates 14 Community Correctional Centres (CCC) in 5 regions, which provide structured and intervention-centered living environments for offenders on release into the community. It is designed for offenders who need a high degree of structure based on their level of risk, complex needs, or both, who are unable to secure other appropriate accommodation to ensure a safe, gradual, and structured return to the community.

[84] Success in CSC programming is based on the offender participating in programming aimed at preparing for release. Designing a release program for offenders who have not had the benefit of CSC programming is much more challenging.

Treatment Plans Recommended

[85] Although both experts agree that Mr. Whittaker needs treatment, their proposed plans of treatment diverge greatly. Dr. Waisman favours the federal system and Dr. Pallandi favours a provincial placement.

[86] Dr. Waisman strongly prefers the treatment regime offered in a federal penitentiary. In his expert opinion, Mr. Whittaker needs an environment of high vigilance and a multifaceted program that incorporates boundary setting, psychotherapy, chemical intervention for irritability and anger issues, and educational upgrading. He says that the high-intensity, multi-target program would provide Mr. Whittaker with all necessary components, giving him the best chance of managing his behaviours to successfully reintegrate into the community. The ICPM program has a number of features crucial to Mr. Whittaker’s success: small group sizes allow for the needs of each individual offender to be met; cognitive and intellectual testing allow an individual’s program to be modified to accommodate their specific needs; the duration of the program allows for a gradual progression from a structured to an unstructured environment with built-in support and maintenance programs. Dr. Waisman indicates that the duration of the program provides a real opportunity for Mr. Whittaker to develop a relationship of trust with his treatment providers. The federal regime also offers education and vocation training programs not available to the same degree in a provincial setting. Finally, there is no limit on how many times an offender can start or repeat the program; they are supported and encouraged to continue. The regime takes into account that offenders might, for a myriad of reasons, discontinue programming and provides all the necessary support to encourage completion of the program.

[87] Dr. Pallandi does not disagree that the federal programming is sufficient to address Mr. Whittaker’s needs; however, in his words, he believes it is “overkill”. Dr. Pallandi is of the view that Mr. Whittaker is sufficiently motivated and well-placed for admission to St. Lawrence Valley. In his expert opinion, St. Lawrence Valley is equipped to address all of Mr. Whittaker’s mental health and behavioural needs.

[88] Additionally, Dr. Pallandi is of the view that Mr. Whittaker’s brother, Jonah, would be an integral part of his release plan as a support person. Jonah Whittaker did not testify or provide affidavit evidence. All I know about him comes from Dr. Pallandi and Mr. Whittaker. Dr. Pallandi reports that he had a lengthy phone call with Jonah, during which Jonah said he would be able to assist Mr. Whittaker with getting a job and pointing him in the right direction when he is released.

[89] Jonah Whittaker is 25 years old and has an adult and youth criminal record. He was last convicted on January 25, 2017 for pointing a firearm and possession of a loaded or restricted firearm. He received a sentence of two years in the penitentiary, concurrent on each count. I am told that Jonah is currently living and working in Toronto with his girlfriend and their one child. I am told and I accept that he has regular contact by phone with his brother. Mr. Whittaker testified that he would not be able to live with his brother upon release and that his brother had a possible job offer that would require him to move to Montreal.

[90] I can certainly appreciate the value of family support to Mr. Whittaker upon his release and I accept that Mr. Whittaker and his brother love and care for each other. But absent hearing from Jonah directly, I have no confidence or basis to find that he can offer Mr. Whittaker concrete and lasting support upon release. There is a significant difference in wanting to support somebody and being able to provide support. I do not know that Jonah has the skills necessary for this task. Moreover, Mr. Whittaker will spend some further time incarcerated and I have no knowledge of what Jonah’s personal situation will be upon his release. Accordingly, I place little weight on his role in Mr. Whittaker’s ability to reintegrate into society.

[91] Both experts agree that Mr. Whittaker’s actuarial assessment of risk points to a high risk of violent recidivism.

[92] In terms of treatment, Dr. Pallandi testifies that he does not know how long it would take for Mr. Whittaker to manage or overcome his PTSD. He candidly acknowledges that there are many variables dependent on a variety of factors. He also acknowledges that Mr. Whittaker has been uniquely resistant to intervention in the past.

[93] Dr. Pallandi also says that Mr. Whittaker acts in aggressive ways in particular situations and goes further to the point where he hurts himself or other people.

Age Out Theory

[94] Both experts agree that the aging out theory is of limited relevance to Mr. Whittaker. Although commonly referred to and relied upon in sexual assault cases, there is no scientific foundation to support the theory that violence decreases or declines with age. Quite the opposite. It is well documented that individuals can continue to be violent well over the age of 45 and even after 60.

ANALYSIS

[95] A dangerous offender designation is contingent on the Crown’s ability to meet the statutory requirements of s. 753 of the Criminal Code, as interpreted by the Supreme Court of Canada in R. v Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936.

[96] First, pursuant to s. 753(1)(a), the Crown must establish that the offence for which the offender has been convicted is a “serious personal injury offence”. In this case, counsel for Mr. Whittaker concedes that the predicate offence is made out and meets this requirement.

[97] Second, pursuant to ss. 753(1)(a)(i) and (ii), the offender must represent:

(a) … a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing

[98] This second element is purely subjective and requires the Crown to prove three things: (1) the predicate offence is part of a broader pattern of violence; (2) there is a high likelihood of harmful recidivism; and (3) the violent conduct is intractable: see R. v. Lyons 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309; Boutilier.

Pattern of Behaviour

[99] A useful discussion of what is meant by a pattern of repetitive behaviour is found in the British Columbia Court of Appeal decision in R. v. Dow, 1999 BCCA 177, 134 C.C.C. (3d) 323. At para. 24, the court says:

In short, the significance and the relevance of common elements of the pattern must be determined by whether they tend to show first, repetitive behaviour, second, that there has been a failure in each to restrain the behaviour, and third, that there has been injury to other persons arising from that failure. If any of those three elements is missing, then there may be a pattern but it will not be a relevant pattern. But if all three are present then the essential elements of a relevant pattern are revealed.

[100] In R. v. Neve, 1999 ABCA 206, 137 C.C.C. (3d) 97, at para. 113, the Alberta Court of Appeal commented on the degree of similarity required to establish a repetitive pattern: “[T]he requirement for similarity in terms of kinds of offences is not crucial when the incidents of serious violence and aggression are more numerous”.

[101] In R. v. Hogg, 2011 ONCA 840, at para. 40, the Ontario Court of Appeal summarized the issue as follows:

[T]he pattern of repetitive behaviour that includes the predicate offence has to contain enough of the same elements of unrestrained dangerous conduct to be able to predict that the offender will likely offend in the same way in the future. This will ensure that the level of gravity of the behaviour is the same, so that the concern raised by Marshall J.A. – that the last straw could be a much more minor infraction – could not result in a dangerous offender designation. However, the offences need not be the same in every detail; that would unduly restrict the application of the section.

[102] There is no question that Mr. Whittaker has a long criminal record with varying degrees of violence attached to most entries. A violent criminal record in and of itself, however, is not a “pattern” for the purposes of s. 753 of the Criminal Code. Something more is needed. The assessment requires an examination of the circumstances underlying each offence or incident.

[103] It is with this legal framework in mind that I have examined Mr. Whittaker’s criminal antecedents and found a clear pattern of reactive violence. Mr. Whittaker reacts violently in two types of circumstances: (1) where a need or request by him has not been met; (2) where he does not want to comply with a direction or a rule. The following summaries from Mr. Whittaker’s criminal history illustrate this pattern:

• February 11, 2003 – Assault Group Home Resident – 13 years old – Mr. Whittaker threatened another resident in the group home where he was residing with a knife because that resident refused to share the sandwich bread. Mr. Whittaker held the knife in one hand and used the other to grab the resident, stating: “I am gonna hurt this kid.” Staff intervened. No injuries.

• February 14, 2003 – Assault Group Home Staff – 13 years old – Mr. Whittaker was being transferred to a new group home. At some point, he took a phone call in the office. When a staff member attempted to take the phone away, Mr. Whittaker grabbed him by the throat and tried to choke him. Another staff member intervened and pulled Mr. Whittaker away. However, when that staff was leaving the office, Mr. Whittaker punched him in the mouth, spit on him, and bit him.

• July 22, 2004 – Assault Group Home Staff – 14 years old – Mr. Whittaker wanted to have a hotdog for breakfast. The request was denied. Mr. Whittaker became verbally abusive and was given a five-minute timeout. Mr. Whittaker was playing a video game during the timeout, which was against house rules. When a staff member attempted to take the game away, Mr. Whittaker punched him in the face twice and bit him twice in the chest area. Mr. Whittaker also seriously scratched a female staff member when she attempted to assist.

• May 5, 2005 – Assault/Threaten Group Home Staff – 15 years old – When Mr. Whittaker’s demand to move the television into his room was denied, he threatened to hit staff with a metal pole from his closet. When a staff member attempted to restrain him, Mr. Whittaker punched, scratched, and bit him. He also threated to kill the staff member and his family. When Mr. Whittaker bit the staff member, he broke the skin and spit the blood in his face.

• September 19, 2005 – Assault/Mischief Group Home Staff – 15 years old – Mr. Whittaker became upset when he was told his video time was over. He became belligerent and started to throw things and punch holes in the wall. When staff attempted to calm and restrain him, he scratched, kicked, and bit them and said he was going to take a knife and cut a staff member’s throat.

• December 2005 – Assault CAS Staff (not reported to police) – 15 years old – Mr. Whittaker was serving a sentence at St. Lawrence Youth Association Sundance and was asked by staff to clean up his mess. Mr. Whittaker physically attacked a female staff member, hit her head against a wall, and pulled out a large amount of her hair. On this same day, Mr. Whittaker hit a male staff member twice and spit on him.

• December 23, 2005 – Assault CAS Staff (not reported to police) – 15 years old – Mr. Whittaker did not like the food he was served. When told to ask politely for something different, he grabbed the staff member by his sweater and spit in his face three times, scratched his face, and bit his arm, leaving bite marks.

• September 29, 2006 – Assault/Mischief Group Home Staff – 16 years old – In response to another resident’s arrest, Mr. Whittaker started yelling and broke a wood panel from the door. As a result, he was arrested. In the course of being escorted out, Mr. Whittaker kicked a staff member in the groin and threatened to kill him and the officer. Once in the police car, he spat at the officer and persisted in kicking the door to the police car. He calmed down after being pepper sprayed.

• August 21, 2009 – Assault Bodily Harm Family Member – 19 years old – Mr. Whittaker’s aunt was speaking to him about how he was treating his grandmother. Mr. Whittaker became upset and pushed his aunt. She pushed back. Mr. Whittaker pushed her again, then began punching and kicking her in the head and threatened her with a knife. Her injuries included a large goose egg on her forehead, a swollen left eye, swelling between the eyes, and stitches to her lip.

• September 13, 2010 – Assault Security Guard – 20 years old – Mr. Whittaker refused to leave the hospital after being discharged. While being escorted out by a security guard, he turned and spat in his face.

• January 24, 2012 – Cause Disturbance/Court Staff – 22 years old – Mr. Whittaker was asked to stop recording a court proceeding that he was attending. He refused. When court security intervened, they escorted him out and a violent struggle ensued.

• August 8, 2012 – Assault Correctional Officer – 22 years old – Mr. Whittaker refused to relinquish papers he was holding and refused to remove his clothing to facilitate a search. After being told the consequences for noncompliance, a physical altercation ensued, during which Mr. Whittaker bit the officer’s thumb, causing it to bleed. It took a number of officers to restrain and calm Mr. Whittaker.

• September 18, 2012 – Threaten – 22 years old – While in custody, Mr. Whittaker became upset when told by a mental health worker that he was going to be evicted from his apartment. He clenched his fists, banged on the table, and multiple times said, “I swear I will fucking kill or stab the superintendent or anyone who touches my things.”

• March 5, 2013 – Disarming Police Officer – 23 years old – In the course of being arrested for robbery, Mr. Whittaker struggled and bit the officer on his forearm. As a result, the officer’s firearm fell out of his holster and landed on the ground. Mr. Whittaker grabbed the firearm by the muzzle. It was only after security officers assisted that the officer was able to gain control of Mr. Whittaker.

• July 26, 2013 – Assault Court Officer – 23 years old – After an in-custody appearance, Mr. Whittaker refused to leave the courtroom as directed. When two officers attempted to remove him, he held the railings inside the prisoner’s dock and struck the female officer in the face, causing her to fall backwards down a flight of stairs. The officer was transported to the hospital. (Note: this entry does not appear on this criminal record, but the transcripts indicate it was a guilty plea.)

• February 15, 2014 – Threaten Relaxation Counsellor – 24 years old – When Mr. Whittaker was asked to leave a youth shelter after disturbing a relaxation class, he began to yell and refused to leave. When it was suggested that he go to a different shelter, he yelled and threatened to stab and kill the relaxation counsellor.

• June 23, 2014 – Assault Corrections Officer – 24 years old – While in custody, Mr. Whittaker took issue with the milk that was delivered as part of his meal. He put his hands through the meal hatch and refused to remove them unless his demand for certain items was met. He scratched the officer who tried to remove his hands. Mr. Whittaker then spat a large amount of food through the hatch onto the officer and stated, “Yeah motherfucker, wear that, all day, every day, go get my milk bitch.” (Note: this does not appear on this criminal record.)

• July 22 and 23, 2016 – Robbery with a Firearm (predicate offence) – 26 years old – Mr. Whittaker committed the predicate and related offences, the details of which are set out earlier in this judgment.

• March 21, 2018 – Assault Court Officer – 28 years old – While in the cells at the courthouse at 361 University Avenue, Mr. Whittaker threw wet toilet paper with bodily fluids on it through his meal hatch. Mr. Whittaker refused to remove his arms from the hatch when directed. He gripped on and would not let go and threatened physical harm on the officer. Mr. Whittaker resisted all attempts to remove his arms. Eventually, officers had to open his cell, at which point he charged the officers and began kicking at them. One officer was kicked in the thigh. Further attempts to restrain Mr. Whittaker were met with violence and resulted in at least one officer being bitten. (Note: this conviction does not appear on this criminal record.)

[104] In the examples cited above, Mr. Whittaker either wants something he cannot have or is refusing to follow a rule or direction. His response in each case is one of violence, resulting in injury or threat of injury to the victim. I was careful in my review of Mr. Whittaker’s criminal history not to include acts of violence where the trigger pattern, as I have articulated it, is absent. The truth is Mr. Whittaker’s criminal record and institutional record are littered with examples of violent behaviour. In many of those incidents, the evidentiary record is lacking detail and I am not able to discern with any clarity what triggered his violence. Accordingly, those incidents have been excluded from my analysis.

[105] I do, however, take into consideration Mr. Whittaker’s behaviour during his trial on the predicate and related offences. In the course of the trial, Mr. Whittaker repeatedly responded with violence when given direction by court officers. On those rare occasions when Mr. Whittaker was able to make it through without any outburst, his frustration was still readily apparent and seemed to be lurking just below the surface. More often than not, his violent reactions resulted in injury and harm to those court officers. I rely upon the details set out in my written ruling, dated December 14, 2018, in support of this finding.

[106] Mr. Whittaker’s prior incarcerations and court orders have been unsuccessful in restraining his behaviour. Settings where noncompliance with rules is not tolerated, like a courtroom or a jail, have also failed to have a deterrent effect on his behaviour. Often, the violence demonstrated by Mr. Whittaker is quite protracted. In other words, it is not limited to a single act of violence, but includes numerous acts extended over a longer period time, all of which amount to a clear and demonstrated pattern of failing to restrain himself.

[107] I find that the predicate offence handily fits into Mr. Whittaker’s pattern of reactive violence in response to a need not being met. Mr. Whittaker wanted information from the victim, Mr. Chonyi. When Mr. Chonyi was unable to provide the requested information, Mr. Whittaker pointed a gun, albeit concealed, at his chest and told him he was going to shoot him. This was not a single act of violence. The offence was rather protracted. The victim described that it happened in two parts and both times Mr. Whittaker threatened death with a firearm. This is inherently violent. The fact that the victim did not suffer any physical injury at the hands of Mr. Whittaker does not diminish the significance of the harm caused.

[108] I am satisfied that the aforementioned incidents reveal a pattern of unrestrained, repetitive behaviour, with each instance resulting in injury.

High Risk of Harmful Recidivism

[109] The pattern of violent behaviour proven by Mr. Whittaker’s conduct can and does play a role in the prospective assessment that attaches to this third criteria. There is no dispute among the experts that, absent meaningful intervention, Mr. Whittaker remains at high risk to violently reoffend in the future. I am well satisfied that the only conclusion to be reached on the evidentiary record before me is that there is a very high likelihood that Mr. Whittaker’s pattern of violent conduct will continue in the future, thereby satisfying the third criteria as set out in Boutilier.

Intractability

[110] In addition to being satisfied that the predicate offence is part of a broader pattern of violence and that the offender possesses a high likelihood of harmful recidivism, as the sentencing judge I must also be satisfied that the offender’s conduct is intractable. This is the fourth and final prerequisite for a dangerous offender designation.

[111] In Boutilier, the Supreme Court defines “intractable” conduct as behaviour that the offender is unable to surmount. In other words, is this conduct something the offender can overcome? Can he change his behaviour? The assessment is both prospective and retrospective.

[112] Mr. Whittaker’s criminal and institutional records for violence are well documented. Upon review, it is clear that when Mr. Whittaker is confronted with what he deems to be a frustrating or displeasing circumstance, he reacts with violence or threats of violence. It matters not whether Mr. Whittaker is in a courtroom, correctional facility, or on the street. Once triggered, the violent response seems automatic and uncontrollable. The pattern has been persistent and consistent and stretches over almost two decades. Over that period, Mr. Whittaker has been subject to countless assessments and community interventions. On most of those occasions, Mr. Whittaker has refused treatment or failed to participate in any meaningful way. As a result, there is little to report in the way of progress or any identifiable and lasting change.

[113] Mr. Whittaker says that he is now prepared to participate in treatment. He submits that his recent participation in a book club and a number of life skills sessions during his incarceration are evidence of his commitment and desire to participate in treatment moving forward. Ms. Young facilitated the life skills sessions. She said that even a one-word response would be considered participation and that no participation was required for an offender to receive a certificate of completion. She testified that Mr. Whittaker attended and participated on several occasions. When pressed, however, she admitted that she had absolutely no independent recollection of the extent of his participation. Moreover, she said the life skills sessions are not therapeutic in nature and there is no ability to assess whether the participants have successfully understood the material presented. I do not deny that Mr. Whittaker’s attendance and interest in this type of group setting is a positive development; however, absent some therapeutic value I am cautious about placing much weight upon them.

[114] I am mindful that in the more recent past, Mr. Whittaker’s institutional misconducts have significantly decreased. Dr. Pallandi postulated that the reduction in institutional violence was possibly due to a change in his environmental surroundings. Mr. Whittaker is currently housed at TEDC and most of his misconducts in the past happened when he was housed at TSDC. Dr. Waisman could not account for the change but pointed out that one cannot overlook the proximity between the sentencing and the reduction of misconducts. In other words, offenders often try to curb their behaviour and put their best foot forward in anticipation of sentencing. Under that umbrella, I am reluctant to find that this is firm evidence of true change.

[115] I have also taken into account Mr. Whittaker’s motivation to change his behaviour. He testified that he has taken the time to reflect on his behaviour and lifestyle choices and that he is committed to making a change. I also have written documents that Mr. Whittaker prepared for the court, in which he reaffirms his desire to change and the goals he has for his future. However, Mr. Whittaker’s desire for change appears to be somewhat conditional on a reformatory sentence and treatment at St. Lawrence Valley. Mr. Whittaker expresses strong resistance to being treated in a penitentiary setting. This gives me pause and concern about the sincerity of his motivations.

[116] I also take into account the interactions and observations I have had with Mr. Whittaker since his trial in 2018. From that date to this there has been a marked decrease in his violent outbursts, disruptions, and demonstrations of disrespect inside the courtroom. Whether this change is permanent or simply a temporary modification in an attempt to put his best foot forward given the serious nature of this proceeding is difficult to discern. But I do appreciate his effort to try and curb his behavior within the courtroom.

[117] To achieve real and lasting change is to attain a state unlike the one in which you have found yourself in the past. I do believe Mr. Whittaker wants this change. The question is, can he achieve it? It is not simply a matter of Mr. Whittaker trying really, really hard or having a strong desire. Mr. Whittaker needs the proper tools, which will only be realized through his wilful participation in a long-term, multimodality, intensive treatment plan.

[118] The treatment path for Mr. Whittaker will be challenging. On balance, however, I am not convinced that, at 30 years of age, Mr. Whittaker is incapable of change. The situation is not without hope. He is not intractable. With the right placement, resources, and motivation there is a real possibility for change.

[119] Accordingly, the Crown has not met its onus to have Mr. Whittaker designated a dangerous offender.

LONG-TERM OFFENDER AND DETERMINATE SENTENCE

[120] At the outset of these proceedings, defence counsel on behalf of Mr. Whittaker conceded that the Crown had met its onus for Mr. Whittaker to be designated a long-term offender.

[121] Part of that designation is predicated on a reasonable possibility of eventual control of risk in the community. I find that control will only be achieved through a lengthy penitentiary sentence where Mr. Whittaker can avail himself of the high-intensity ICPM program. It is clear that the other forms of treatment Mr. Whittaker has been exposed to, although not superficial, have not brought about any meaningful change.

[122] The ICPM, offered only at the federal level, is an individually focused, multimodality treatment plan well-suited to Mr. Whittaker’s needs. In my view, it is his best chance of success.

[123] Mr. Whittaker faces a number of challenges that he must overcome if treatment is to be even moderately successful. First, he has a deeply rooted distrust of treatment providers. Cultivating trusting relationships with Mr. Whittaker will take significant time and patience. The federal programming is of sufficient duration and will provide Mr. Whittaker with the stability he needs to effect permanent positive change. Second, Mr. Whittaker has been actively and openly resistant to any exchange focused on his life trauma. Most recently, in the course of this hearing, Mr. Whittaker became visibly upset, angry, and ultimately asked to be excused when hearing testimony or submissions about his childhood. Although his request to be removed shows some insight, it is at best a band-aid. Both experts agree that exploring this trauma, although difficult, is a necessary and significant component of Mr. Whittaker’s treatment moving forward. Meaningful engagement will take time. The likelihood of Mr. Whittaker disengaging in treatment looms large. The federal programming anticipates and accommodates offender restarts. It offers a high degree of flexibility not offered at the provincial level that will serve Mr. Whittaker well.

[124] Finally, Mr. Whittaker has some learning disabilities and cognitive limitations that will have to be accommodated and likely slow his progress. The federal system offers an extensive educational component, which will increase Mr. Whittaker’s ability to process and participate meaningfully in therapy. The vocational training will also be of great benefit to him upon release. Although St. Lawrence Valley is clearly a very capable facility that has helped many, it does not offer the long-term, multifaceted programming that Mr. Whittaker needs.

[125] I am satisfied beyond a reasonable doubt that Mr. Whittaker is a long-term offender as defined in s. 753.1 of the Criminal Code.

[126] I am also mindful that Mr. Whittaker has been in custody for four years and eight months since his arrest on July 23, 2016. Outside of this designation, that amount of pretrial custody would have proved sufficient for the purpose of sentencing. However, the primary objectives at this stage are two-fold: (1) protection and safety of the public and (2) access to rehabilitative and treatment programming for the offender. For the reasons given, I find those objectives can only be met through a penitentiary sentence of four years. Moreover, I am of the view that this is the least intrusive and least restrictive sentence that achieves these goals.

Long-Term Supervision Order (LTSO)

[127] An LTSO is designed “to protect the public during a period of supervised reintegration into society”: R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 46. It is a “specialized measure” targeted towards offenders who present a substantial risk to reoffend: R. v. Edwards, 2008 ONCA 414, at para. 19. Whether an offender’s risk can be reduced to a tolerable or acceptable level within a defined period of time very much depends on control through (1) treatment and/or (2) effective community supervision and risk management: see R. v. J.F.H., [2006] O.J. No. 362 (C.A.); R. v. Little, 2007 ONCA 548, 225 C.C.C. (3d) 20. The length of an LTSO is highly discretionary but should not be longer than necessary to achieve the two aforementioned objectives.

[128] I am of the view that Mr. Whittaker needs access to resources and long-term stability upon release. Accordingly, he will be subject to an LTSO order for ten years. Pursuant to s. 753.2 of the Criminal Code, that order begins when he has served the custodial sentence imposed.

FINAL CONCLUSION

[129] For reasons stated, I find Mr. Whittaker to be a long-term offender and sentence him to a global sentence of four years’ incarceration, in addition to pre-trial custody. For clarity, the final disposition on this matter is as follows:

• On count one, robbery with a firearm (the predicate offence), Mr. Whittaker is declared a long-term offender and is sentenced to four years’ incarceration.

• On count two, point firearm, Mr. Whittaker is sentenced to three years’ incarceration (concurrent).

• On count three, possession of a loaded-restricted firearm, Mr. Whittaker is sentenced to four years’ incarceration (concurrent).

• On count four, carry concealed weapon, Mr. Whittaker is sentenced to three years’ incarceration (concurrent).

• On count five, possession of a firearm with altered/defaced serial number, Mr. Whittaker is sentenced to two years’ incarceration (concurrent).

• On count six, possession of a firearm unauthorized, Mr. Whittaker is sentenced to two years’ incarceration (concurrent).

[130] Further, I order the taking of samples of bodily substances for the purposes of DNA analysis pursuant to s. 487.051(1) of the Criminal Code.

[131] I order, pursuant to s. 109 of the Criminal Code, that Mr. Whittaker is prohibited from possession of any weapon, firearm, or ammunition for life.

[132] I order, pursuant to s. 491 of the Criminal Code, that Mr. Whittaker forfeit the firearm and ammunition seized by the police in this case.

[133] I order, pursuant to s. 743.21 of the Criminal Code, that Mr. Whittaker is prohibited from contacting or communicating with the victim in the matter, Mr. Chonyi.

[134] In accordance with s. 760 of the Criminal Code, I order that transcripts of the evidence on these proceedings, all material filed on this application, these reasons, and a transcript of the trial evidence be forwarded to Correctional Services Canada.

Byrne J.

Released: April 19, 2021

COURT FILE NO.: CR18100002900000

DATE: 20210419

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

DWIGHT WHITTAKER

REASONS ON DANGEROUS OFFENDER APPLICATioN

Justice Kelly Byrne

Released: April 19, 2021

OVERVIEW

DANGEROUS AND LONG-TERM OFFENDER LEGISLATION

EVIDENCE OVERVIEW

PREDICATE AND RELATED OFFENCES

VICTIM IMPACT

PERSONAL CIRCUMSTANCES AND BACKGROUND OF OFFENDER

CRIMINAL HISTORY

Summary of Criminal Record

INSTITUTIONAL HISTORY

2016 Institutional Occurrences/Misconducts

2017 Institutional Occurrences/Misconducts

2018 Institutional Occurrences/Misconducts

2019 Institutional Occurrences/Misconducts

2020 Institutional Occurrences/Misconducts

MENTAL HEALTH HISTORY

EXPERT EVIDENCE

Risk Assessment Tools

Diagnosis

TREATMENT

St. Lawrence Valley Correction and Treatment Centre

Correctional Service of Canada

Treatment Plans Recommended

Age Out Theory

ANALYSIS

Pattern of Behaviour

High Risk of Harmful Recidivism

Intractability

LONG-TERM OFFENDER AND DETERMINATE SENTENCE

Long-Term Supervision Order (LTSO)

FINAL CONCLUSION

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Statutory Provisions 5

Legal Tests 1

Legislation 1