COURT FILE NO.: 19-41
DATE: 20210118
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
EDWARD HALL
Defendant
M. Collins, counsel for the Crown
D. Grenkie and J. Larochelle, counsel for the Defendant
HEARD: August 28, 2019; January 13, 2020; November 3, 4, 17, 18, 19 and 30, 2020; December 21, 2020 and by written submissions
amended reasons for sentence
Lacelle J.
Introduction
[1] Edward Hall has entered guilty pleas before me to the offences of aggravated assault, break and enter, choking, and failing to comply with probation. The Crown applies to have Mr. Hall declared a dangerous offender and sentenced to an indeterminate period of incarceration. Mr. Hall concedes that he meets the criteria to be designated a dangerous offender under s. 753(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46. However, he submits that the court should impose a determinate sentence of 8 years less presentence custody.
[2] Mr. Hall is a 51-year-old Indigenous offender. Between 2013 and 2018, he committed three aggravated assaults using weapons. The Crown’s application to declare Mr. Hall a dangerous offender relates to the last of these convictions.
[3] A dangerous offender application requires careful consideration of a broad range of legal issues and evidence. The stakes for both the community and the offender are high. Ultimately, I have determined that Mr. Hall should be designated a dangerous offender and sentenced to a period of imprisonment of 8 years (in addition to the 769 days he has served since December 12, 2018), followed by a Long-Term Supervision Order (“LTSO”) for 8 years. In the reasons that follow, I set out the evidentiary basis and legal analysis that have led me to that conclusion.
The predicate offences and their impact
[4] Mr. Hall committed the predicate offences on December 6, 2018. At the time, he was bound by two probation orders relating to two convictions for aggravated assault.
[5] With respect to the facts of the predicate offences, an agreed statement of facts has been filed with the court. It sets out the following facts:
At approximately 11:30 p.m. on December 5th, 2018, Dennis Gowan, Blake Woods and Mr. Hall attended the Winchester Hospital in a van. There, they picked up Clarissa Square and drove to 13990 Collins Road in South Stormont Township, arriving at approximately midnight.
13990 Collins Road, South Stormont is the residence of Christopher Moke and his son Justin Moke. Justin Moke’s girlfriend, Emily Hunter, also resides there. It is a rural property consisting of a main residence and several outbuildings, including a workshop.
Both Woods and Mr. Hall disguised their faces: Woods with a black bandana, and Mr. Hall with a camouflaged balaclava. Woods and Mr. Hall got out of the vehicle and walked towards the rear door of the residence at 13990 Collins Road while Square and Gowan remained in the van.
Christopher Moke, Justin Moke and Emily Hunter were inside the residence. Christian Champagne - the step-brother of Justin Moke - was also working in the detached workshop behind the residence.
Shortly after midnight on December 6th, 2018, Christopher Moke was standing in front of the kitchen sink when he heard his door violently swing open. He turned around to see two males standing in his home with their faces covered. Woods was holding a hammer, while Mr. Hall carried something that appeared to be made of wood.
Christopher Moke immediately recognized Woods as one of the male intruders. He had known him for most of his life. As Woods and the Accused approached him, Christopher Moke yelled “Blake”. Woods then lifted the hammer in the air and swung it at Christopher Moke, hitting him in the left side of the forehead, causing it to swell and bleed profusely. Christopher Moke ripped the hammer from Woods’ grip and ran out the rear door.
After striking Christopher Moke in the head with a hammer, Woods then entered the living room of the house with Mr. Hall. Justin Moke and Emily Hunter were in that room. Mr. Hall took both their cell phones from a bar located in the living room and then left.
While in the detached workshop, Christian Champagne heard the commotion in the house. He began to exit the workshop when he saw Christopher Moke running towards him with his face covered in blood. Moke was yelling at Champagne to run and hide in the bushes that surround the property. Moke ran into the bushes and hid.
Immediately after Moke yelled this warning, Champagne observed Mr. Hall, with his face covered by a camouflage balaclava and a weapon in his hand, exiting the back door of the residence and heading in his direction. Frightened, Champagne immediately returned to the workshop and attempted to close the door. He was unsuccessful in closing the door due to Mr. Hall forcing it open and entering the workshop.
Mr. Hall and Champagne began fighting in the workshop. At some point, the light to the workshop was turned off. During the struggle, Champagne was struck several times on the head and body with something hard that he believed was a piece of wood. These strikes caused large cuts, swelling and heavy bleeding to his head and face. Mr. Hall overpowered Champagne and Champagne ended up on the floor with Mr. Hall on top of him, straddling him and pinning him down.
Mr. Hall, while beating Champagne with the wooden object and choking him around the neck with his other hand, calmly told Champagne to “stop fighting and it would all be over quickly” or words to that effect. At some point, Champagne kicked out at Mr. Hall’s hand and knocked the wooden object out of it. Champagne attempted to grab it himself but was not successful - it appeared to be attached to Mr. Hall’s hand.
At some point during the struggle, Champagne grabbed Mr. Hall by the face. His finger ended up in Mr. Hall’s mouth. Mr. Hall bit down on Champagne’s finger going almost to the bone. As Champagne’s energy depleted from the fight, the blows to his head, the biting of his finger, and the choking, he committed himself to dying on the floor of the workshop. Eventually Champagne was strangled and/or choked by Mr. Hall to the point of unconsciousness.
As Christopher Moke hid, he heard the commotion in the workshop as Champagne attempted to fend off Mr. Hall. Once the noise stopped, Christopher Moke saw Mr. Hall exit the workshop and make off into the night.
At some point after Mr. Hall left the workshop, Woods could be heard yelling for “Squee”, “Dog” and/or “Boy”. He was looking for Mr. Hall.
Mr. Hall did not return to the van but instead proceeded on foot to a neighbouring residence: the home of Kelly Tyrell and her husband Steve. There he knocked on the door and asked to use Ms. Tyrell’s phone to call his girlfriend in Cornwall or a taxi. Ms. Tyrell refused but offered to call 9-1-1, but he declined. Mr. Hall was noted to be wearing something camouflage around his neck. When Mr. Tyrell yelled at him to leave he departed.
Upon regaining consciousness, Champagne found himself still lying on the workshop floor. He managed to stagger to the back door of the residence and knocked to be let in. Once inside, he collapsed on the floor of the bathroom due to his injuries. Paramedics attended and took him to a trauma hospital in Ottawa. At the hospital, medical staff glued his face, head and cheek, and placed a bandage around his hand.
Champagne’s injuries - particularly the one to his finger - continued to plague him up until, and including, his testimony at the Preliminary Inquiry in April 2019. He also had scars on his head and face from being struck. He continued to be psychologically affected by what happened to him.
Later that same day, after returning home and resting, Champagne went back into the workshop to tidy up. At that time he noticed an 18-inch wooden baton on the floor near to where he had been attacked and struck in the head. The bat had some form of handle on the end of it. The bat was also noted to have a pair of eyes drawn on to it, and the words “I’m watching” written along its length. On the other side, the bat had the words “Billy the bat” written on it. Champagne was extremely disturbed upon finding the bat and reading the words and eyes drawn on it. After he discovered it and saw what it said, he ran back into the residence.
The police re-attended to seize the bat and it was sent off to the Centre of Forensic Sciences to be forensically analysed. A sample which matched Mr. Hall’s DNA was found on the handle.
Efforts made to locate Mr. Hall in the days following the incident were unsuccessful. Mr. Hall was ultimately arrested at a residence in Cornwall on December 12th, 2018. He has been in custody since.
Mr. Hall’s previous offending
[6] Mr. Hall’s background and circumstances are discussed at length in these reasons. By way of context for that discussion, it may assist the reader to know that while Mr. Hall’s mother’s family originally resided on the Mohawk territory of Akwesasne near Cornwall, Ontario, the family moved to the United States (Syracuse, New York) in the 1950s to escape Canada’s residential school policy. Mr. Hall consequently spent his childhood and some of his adult life in Syracuse before returning to Akwesasne and the Cornwall area. Mr. Hall was living in Cornwall at the time he committed the offences leading to this application.
[7] Mr. Hall has a criminal record in both Canada and the United States. Between the two countries, he has been convicted of approximately 60 offences.
[8] American probation records indicate involvement with Mr. Hall when he was as young as 13. His offending continued as an adolescent. The records from the Syracuse City Court confirm convictions for burglary, criminal trespass, criminal mischief, resisting arrest, and violating probation. While a number of assaults were charged, they appear to have resulted in pleas to lesser offences, or to have been “dismissed in full satisfaction of previous plea to unrelated charges”. Mr. Hall was between the ages of 16 and 19 at the time of his arrests for the offences listed in this court’s record. He was sentenced to a year in custody for the offence of “criminal trespass” which was committed when he was 17.
[9] Records from the Onondaga County Probation Department reveal further convictions. In 1990, after violating the original probationary sentence he received, Mr. Hall was sentenced to between 2 and one-third years and 7 years in prison for a conviction for “burglary in the 2nd degree”. In 1997, he was convicted of “criminal possession of stolen property in the 4th degree” and was sentenced to 2-4 years in prison. I have no information about how much of those sentences were served or where.
[10] Further convictions from the Syracuse area were registered between 2000 and 2002. The police reports relating to the allegations giving rise to the charges in these instances indicate that serious allegations of domestic violence were made by two of Mr. Hall’s partners. While a number of charges were laid, Mr. Hall was convicted of only some of the offences, including harassment, resisting arrest, criminal possession of a weapon, and menacing with a weapon. There are no transcripts from those proceedings confirming the factual bases for the convictions.
[11] While Mr. Hall had some convictions in Canada for offences committed in the late 1990s (chiefly for violating court orders), the Canadian Police Information Centre (“CPIC”) record for Mr. Hall starts in 2009. It includes convictions for a variety of offences, including breaches of court orders, firearms offences (possession for a dangerous purpose, unauthorized possession, and careless use), flight from police, driving offences, and theft. In 2017, he was twice convicted for aggravated assault. Prior to that, the only violence on his CPIC record involved one entry with convictions for uttering threats and assault in 2012. He was sentenced to 21 days in custody for those offences, in addition to time served of 52 days.
[12] Mr. Hall’s longest sentences to date have been for the aggravated assault convictions from 2017. He had served significant presentence custody at the time of sentencing for those matters, with the result that he was sentenced to an additional 12 months for the first of these convictions (with credit given for the equivalent of 3 years in custody), and a further 265 days for the second (with a presentence credit of 765 days). A period of probation was ordered as part of both sentences. Given the totality of these sentences after the presentence custody was credited, they were served in a provincial institution. Mr. Hall has never been in federal custody.
[13] For the purposes of this application, the facts involving the prior convictions for violence and weapons offences are the most pertinent. Transcripts of the proceedings or other evidence confirm the following factual underpinning to the most significant convictions.
[14] In mid-March 2013, while on probation, Mr. Hall committed an aggravated assault on Anthony Marini. Mr. Hall and Mr. Marini knew each other and had a friendly relationship prior to Mr. Hall’s assault. The assault occurred in the aftermath of a house party each man had attended. At the time of the assault, Mr. Hall was intoxicated and had been assaulted by others at the party. Mr. Hall told everyone to leave the party. Mr. Marini initially left but went back to retrieve a backpack. He was making his way out of the apartment when at the top of a set of stairs he was kicked in the back by Mr. Hall, and then stabbed by him multiple times with a butcher-type knife. Mr. Marini suffered four stab wounds to his arm and a cut to his face. As a result of this unprovoked assault, he also suffered a collapsed lung. He required stitches to close his wounds. At the time of the trial, Mr. Marini was still feeling the physical and psychological impacts of the assault upon him.
[15] Just shy of a year later (February 2, 2014), while on release for the assault on Mr. Marini, Mr. Hall assaulted Omar Richards. Mr. Hall was convicted by a jury of this offence. The Reasons for Sentence indicate that while in his kitchen, and after using a racial slur and telling the victim that he was going to kill him, Mr. Hall stabbed the victim in the hand as the victim put his hand up to defend himself. The injuries to the victim’s hand were significant and required two surgeries. Two of Mr. Richards’ tendons were cut. At the time of the trial, Mr. Richards was still feeling the impact of the injury and could not pick up anything heavy. In his Victim Impact Statement, Mr. Richards noted that he could not enjoy sports, he had nightmares, he was let go from work, and he was now permanently disabled. Mr. Richards’ parents further described the impact of the offences on them, since they now had to assist in caring for their son.
[16] The 2012 convictions for uttering threats and assault related to conduct directed towards a domestic partner, Sarah Jocko. During an argument at a shopping mall, Mr. Hall threatened to punch Ms. Jocko in the face if she did not follow him. On another occasion the same month, Mr. Hall and Ms. Jocko were arguing in their apartment. Mr. Hall followed Ms. Jocko to the bedroom where he spat at her and made threatening comments. He then stole her purse and left the residence.
[17] In terms of additional offences involving the use of weapons, the conviction in 2009 for possession of an unauthorised weapon and careless use of a firearm is the most significant. It involved an incident when Mr. Hall used a handgun to fire three rounds in the air during an argument his domestic partner, Ms. Jocko, was having with another woman. He fired another round in the air while leaving the scene in a vehicle.
Mr. Hall’s background and circumstances
The Gladue report
[18] A Gladue report was prepared by Lacey Pierce, who is also a resident of Akwesasne. Due to staffing changes at her office, the report was only completed on October 8, 2020, some time after the PSR and s. 752.1 assessment had been completed.
[19] The Gladue report provides a detailed history of Mr. Hall’s childhood. Mr. Hall’s mother was a registered Mohawk of Akwesasne band member and former resident. His father was half-Mohawk. Both died in 2019 while Mr. Hall was in custody.
[20] Mr. Hall grew up in Syracuse, New York. As I have already explained, Mr. Hall’s maternal grandparents relocated to that area in the 1950s so that they could escape the mandatory requirement that children of Akwesasne attend residential school. Nevertheless, Mr. Hall’s mother and others among her siblings were sent to a residential school.
[21] Some of Mr. Hall’s extended family on his mother’s side continue to reside in Akwesasne. Mr. Hall’s connection to the Mohawk culture is mainly through this side of his family.
[22] Mr. Hall identifies as being a member of the wolf clan of the Mohawk Nation. While he is not a fluent speaker, Mr. Hall has some knowledge of his traditional Mohawk language.
[23] As a child, Mr. Hall suffered a great deal of trauma, the details of which I need not repeat here. He was physically and emotionally abused by his father. He also witnessed his father’s abuse of his mother, which went unchecked reportedly because his father was a police officer. Mr. Hall was also sexually abused. Because of these experiences, Mr. Hall says he started to experiment with alcohol when he was eight years old and progressed to drug use by the time he was nine.
[24] As a child, Mr. Hall lost confidence in the safety police were supposed to provide. He developed a problem with authority. He got into trouble at school and ran away frequently.
[25] Mr. Hall also suffered from health problems. A hearing problem was only rectified when he was nine.
[26] In addition to the abuse he suffered at the hands of his father, Mr. Hall was neglected at home. His parents were both alcoholics. It appears his only protector was his older sister Karen. Mr. Hall felt abandoned when she and his older brother moved out of the family home.
[27] As a child of 11, Mr. Hall reports he was diagnosed with ADHD, OCD, Bipolar Disorder, and other conditions. Mr. Hall reports that his parents placed him in a youth clinic outpatient program at a health center for treatment.
[28] When Mr. Hall was 14, his mother left his father. His father stalked her following the separation, reportedly threatening other men she had contact with using a “small gun” he carried around.
[29] By this point, Mr. Hall had become involved in the criminal justice system. As a youth, he was sent to two residential programmes as part of his sentence.
[30] By the age of 16, Mr. Hall quit high school and moved to Akwesasne to live with an aunt. Thereafter, he moved back and forth between Akwesasne and Syracuse.
[31] Mr. Hall reported to Ms. Pierce that he completed his GED in Oneida, New York, in 1991 when he was 22 years old. He did so after attending treatment for substance abuse in Akwesasne at the Partridge House, at which time he realized that he needed to get his high school diploma to create better opportunities for himself.
[32] Mr. Hall was in a relationship with Ms. Jocko for about nine years, between 2002 and 2011. They had five children together. While they lived in Syracuse for some of their relationship, by 2009, the family was living in Akwesasne. In 2011, the children were placed in foster care.
[33] Mr. Hall also has another child with a woman he had a brief relationship with before Ms. Jocko.
[34] As of February 2019, Mr. Hall reported that he had reconnected with one of his children through letters. He stated that he hoped to maintain a positive relationship with his child going forward.
[35] Mr. Hall reported to Ms. Pierce that upon release, he wanted to return to the Cornwall area to be closer to Akwesasne in order to receive services and to work on his relationship with his children, family, and community. Mr. Hall’s network, which consists of his sister Karen, an aunt, and an uncle, was described as being supportive and intent on helping Mr. Hall reach his goals upon release. Mr. Hall also has other friends and mentors in the community who have expressed their support for him.
[36] Mr. Hall had corrective surgery on his shoulder in 2019 while incarcerated for the present offences. He reported to Ms. Pierce that he still suffered from chronic aches and pains and limited shoulder mobility. He also claimed to have memory loss as a result of a head injury sustained in a bike accident. He indicated it was his intention to apply for ODSP to support his basic needs.
[37] Mr. Hall’s extensive history of substance abuse was detailed in the Gladue report. Because of that addiction, he attended a 56-day inpatient culturally based addiction program at Partridge House in Akwesasne, New York. He is reported to have formed a connection with his culture while there. Upon successfully completing the program in January 1990, he was able to maintain his sobriety for 18 months.
[38] Mr. Hall reported that he relapsed because it was difficult to maintain his sobriety after returning to the same community and associates with whom he had previously used. After attending Partridge House, his drug use expanded to include heroin. Prior to his most recent incarceration, he acknowledged regular use of alcohol, cocaine, crack, and speed. He has reportedly been sober since his arrest in December 2018. He also had a period of sobriety while incarcerated in 2015 for a period of three years.
[39] Mr. Hall told Ms. Pierce that the trauma that he experienced as a child has stayed with him. He has nightmares and flashbacks of abuse.
[40] With respect to the index offences, Mr. Hall told Ms. Pierce that he wanted to apologize to the victim for the harm and trauma he inflicted. He says he is using his time in custody productively to better himself through programing and personal growth to make sure that this never happens again.
[41] Akwesasne is a nation of Mohawk people situated along the banks of the St. Lawrence River. It straddles the border between the United States and Canada, and includes territory within the jurisdictions of New York State, Ontario, and Quebec. Ms. Pierce outlines in her report how the Mohawks of Akwesasne have been severely impacted by policies of assimilation aimed at eradicating Indigenous cultures. The intense suffering these policies have caused have had intergenerational impacts that continue to be felt today.
[42] Some of these impacts on Indigenous communities and people include the high prevalence of alcohol and drug abuse, dysfunctional relationships marred by abuse, low income and education, lack of employment opportunities, and high rates of incarceration. The impacts of this intergenerational trauma are evident in Mr. Hall’s history, including the physical and emotional abuse he suffered as a child; his early addictions to alcohol, marijuana, and cocaine; his loss of his connection to his community; the lack of employment skills, education, and functionality; and the racism he has faced in various communities and institutions.
[43] Ms. Pierce made a number of recommendations with a restorative and rehabilitative focus that might be considered in sentencing Mr. Hall. They include ongoing treatment options for his addictions in the Cornwall area. Assuming that he meets its criteria upon application, she recommends the Waseskun Healing Center (“Waseskun”) as an option for residential treatment that has a culturally focused approach. She also outlines other cultural programs available in Akwesasne that would provide Mr. Hall with further support.
The evidence of Lacey Pierce
[44] Ms. Pierce testified during the hearing. In her evidence she explained how she prepared her report. She confirmed in her testimony that Mr. Hall’s mother, uncles, and aunts all attended residential school. She testified about the intergenerational impact of that trauma, including the loss of culture that came when Mr. Hall’s family fled to Syracuse to avoid the residential school system. This has affected Mr. Hall, whose connection to Akwesasne was disrupted. She said that while the culture was lost in his family, he is making efforts to bring it back for himself. An important experience for him in that regard was when, as a young man, he attended Partridge House.
[45] Ms. Pierce highlighted that Mr. Hall has spent a great proportion of his adult life in remand in provincial institutions. In that setting, he has spent long periods of time in segregation. She viewed his recent requests to be placed in segregation as very significant since it shows that he was able to remove himself from a dangerous situation and place himself in a more controlled environment where he could not be influenced by fellow inmates. She noted Mr. Hall’s history of being impulsive and influenced by his peers.
[46] Ms. Pierce said that she tried to focus in her report on programs that she felt would assist in rehabilitating Mr. Hall. Waseskun was recommended because it might be available to Mr. Hall during the custodial portion of his sentence or while on parole. She testified that she read about the program and a colleague had some experience with it. She subsequently spoke with staff there about what it offered and its availability to Mr. Hall. It was her understanding that Waseskun would provide Mr. Hall with access to services that would help in his rehabilitation, including skills learning for jobs, and cultural and counselling sessions. She thought that Waseskun would help Mr. Hall find his identity and help him heal. This would in turn help him to cope with everyday life and find himself again.
[47] Ms. Pierce acknowledged that much of what is contained in her report is information provided to her by Mr. Hall. She agreed that he had not told her about one of his former intimate partners, or that he was involved in smuggling and supported himself with the proceeds of that activity. Ms. Pierce was not familiar with the treatment programs offered by CSC or what culturally focused treatment might be available to him in a federal institution. She was not aware that this sentencing hearing involved a dangerous offender application by the Crown. With respect to her recommendations, Ms. Pierce said that “this is what Mr. Hall wants and this is what I think will work best for Mr. Hall’s rehabilitation”.
The presentence report
[48] The presentence report (“PSR”) was prepared following an interview with Mr. Hall in September 2019. The report summarizes Mr. Hall’s highly abusive upbringing and his more recent circumstances.
[49] In terms of his current relationships, it is noted that Mr. Hall does not have contact with his children. At the time the report was prepared, he reported being in an “on and off” relationship with a woman with whom he remained in contact. He reported little contact with family members save for some family in Akwesasne.
[50] Mr. Hall reported a history of mental illness to the author of the PSR, stating that when he is unmedicated he sees shadows and hears voices.
[51] As far as his education was concerned, Mr. Hall reported that he had a lot of difficulty while in school. The PSR indicates that his highest level of education is grade 8.
[52] Mr. Hall’s work history was described as being mostly in construction. He has not had legitimate employment for longer than eight months and has often resorted to smuggling as a means of supporting himself, including during his most recent period of community supervision. Probation records suggest his employment history has been affected by his “party lifestyle”.
[53] The PSR notes an extensive history of substance abuse. Mr. Hall reported that this history started at around age nine. He was consuming alcohol and marijuana regularly by the age of 12. Later he began using cocaine and crack. He did have a period of treatment for drug abuse when he attended the Partridge House Treatment Center in Akwesasne. He also attended Alcoholics Anonymous for a period.
[54] Mr. Hall reported that on the day of the index offences, he had been smoking weed most of the day. On the other hand, he denied that alcohol and drugs were a factor in his offending on this occasion. He said he felt badly that it had happened and that he had no intention to harm the victims. The PSR notes that Mr. Hall made several contradictory claims relating to the index offence. He was described as not appearing to understand the seriousness of his actions or take responsibility for them. He blamed the co-accused for the fact that he was involved.
[55] The PSR notes the ongoing risk factor that substance abuse presents for Mr. Hall, particularly since he does not have supports in his life who are not involved in this lifestyle. He did report to the author of the PSR that he would be willing to attend and participate in treatment and in counselling or rehabilitative services upon release. The claim was viewed as questionable given Mr. Hall’s history of breaching court orders.
[56] Mr. Hall’s prior history of community supervision is noted to have been poor in almost every instance. He has “demonstrated a habit of failing to report” and to update probation services with his contact information. In addition, he breached the last probation order imposed upon him, both by committing the index offence and by engaging in smuggling to support himself.
[57] The author of the PSR expressed concern about Mr. Hall’s instability in the community and his extensive history of associating with peers involved in criminal activity. The author, who had been charged with supervising Mr. Hall on his last probation order, believed that Mr. Hall was a major flight risk upon release, since Mr. Hall had “fled” from supervision and threatened to “run to the states [sic]” should the probation officer take enforcement actions.
[58] Mr. Hall was not considered to be an appropriate candidate for community supervision. Instead, the author suggested that Mr. Hall “would benefit from services in a more structured environment”.
The evidence of Karen Hall
[59] Karen Hall is Mr. Hall’s older sister. She testified about the conditions in which her brother grew up. Her evidence is consistent with the summary in the Gladue report. She spoke about the alcoholism and abuse in their home and her efforts to protect her brother before she left home at the age of 18.
[60] She also confirmed elements of her family’s history, including that her mother was sent to residential school, and that her grandmother relocated the family from Akwesasne to Syracuse to escape the impact of that policy. Ms. Hall says she now understands that her mother was traumatized all her life.
[61] While they have not always been in contact this often, Ms. Hall currently speaks with her brother once or twice a week. She says her children, who grew up with Mr. Hall, miss him. Her grandkids are writing letters to Mr. Hall. She testified that she loves her brother and will be available to support him upon his release. She confirmed that she still has family in Akwesasne, as well as an aunt in Maniwaki, Quebec, to whom Mr. Hall is close.
[62] In Ms. Hall’s view, Mr. Hall’s further involvement in the Mohawk culture would be helpful to him. She says her family is very spiritual, and they “keep to their culture very much”.
The offender’s time in custody between 2015 and 2020
[63] Between 2015 and 2019, Mr. Hall was incarcerated at various provincial institutions. Records show a few instances where Mr. Hall wilfully disobeyed orders of Correctional Officers. He also received misconducts for an altercation with another inmate in 2016 and for fighting with another inmate in 2017. He was placed on misconduct for hoarding pills in March 2019.
[64] The institutional records also reveal that in January/February 2019, intercepted letters from Mr. Hall to another inmate appear to portray Mr. Hall as suggesting to the other inmate that he use an alibi suggested by Mr. Hall. Mr. Hall requests the inmate contact his lawyer about the alibi “cause they’ll try to D.O. me”.
[65] Other records indicate that Mr. Hall asked to see a psychologist in 2016 due to his early trauma. This is noted to be in relation to a disability claim. The records indicate that Mr. Hall’s motivation to receive treatment for addictions, relationships, and employment “remains questionable”. In late 2017 he reportedly did not want mental health care.
[66] Subsequently, however, Mr. Hall reported that he sometimes heard family members’ voices and saw “shadows” of a deceased partner. He wanted medication “for bipolar”. In the days that followed he denied hallucinations or mental health concerns. In February 2018, Mr. Hall was again reporting seeing shadows and hearing voices.
[67] Mr. Hall has served his presentence custody in relation to these offences at the Ottawa-Carleton Detention Centre (“OCDC”). His counsel has filed documents relating to his activities and conduct while there.
[68] Dr. Irina Demacheva is a doctor who practices clinical psychology at OCDC. She confirms that Mr. Hall has been followed by her for psychotherapy since October 19, 2019. The treatment is focused on psychological distress experienced by Mr. Hall, including his symptoms of PTSD, memory issues, and grief over the loss of his mother. Dr. Demacheva states that Mr. Hall has been receptive to treatment. She says that he “remained an active participant throughout treatment and showed persistent motivation”. She notes that psychiatric medication was given concurrently and contributed “to the gains that inmate has made throughout therapy”.
[69] Mr. Hall has also been followed by the Mental Health Team at OCDC. It confirms that he has received services from all of their departments (mental health nurse, psychology, psychiatrist, and social work).
[70] Various “Inmate Behaviour Work Reports” were filed by counsel on behalf of Mr. Hall. They were completed by eight members of the staff at OCDC. Each staff member describes Mr. Hall’s behaviour in identical terms (standardized in the form): patient, well behaved, uses time effectively, polite, helpful, compliant, follows rules, understanding, and collective (calm). Mr. Hall’s efforts are uniformly described as “fully satisfactory” and/or “goes above and beyond”. In the individual comments by the staff, Mr. Hall is noted to have a strong work ethic, to be active in assisting other inmates, an “excellent example of a model inmate”, respectful to staff and inmates, focused on tasks, willing to mix with anyone, always willing to cooperate and find the middle ground, a good influence on others, and easy to work with. In the section relating to “work/school”, he is noted to keep busy with reading and writing. A social worker describes Mr. Hall as “consistently engaged with social work in an appropriate manner”.
[71] Mr. Hall has also completed various programs involving independent learning (e.g. “Recognizing Healthy Relationships”, “Use of Leisure Time”, “Thoughts to Action”, “Anger Management”, and “Substance Use”). He has completed 15 bible study courses.
Psychiatric assessment
[72] Dr. Philip Klassen conducted the psychiatric assessment of Mr. Hall that was ordered pursuant to s. 752.1 of the Criminal Code. He testified and was qualified as an expert in forensic psychiatry and risk assessment.
[73] Dr. Klassen is a psychiatrist with a subspecialty in forensic psychiatry. He has been involved with forensic work for the past 25 years. He has worked at various hospitals and has been the chief of the medical staff at the University of Toronto forensic psychiatry program. Dr. Klassen has conducted approximately 220 DO/LTO assessments. He remains involved in the treatment of patients outside his forensic work.
[74] While Dr. Klassen does not consider himself to be “scholarly” with respect to Indigenous issues, he testified that he has had a lot of involvement with Indigenous people in his work. He is the only doctor at his current hospital (Ontario Shores Centre for Mental Health Sciences) who also works in Canada’s northern territories. In that capacity, he has treated a number of Indigenous persons. He treats primarily Indigenous individuals in his work in the Kenora/Rainy River area of Ontario.
[75] Dr. Klassen has also worked as an assessor of residential school survivors in conjunction with the work of the Truth and Reconciliation Commission. That work involved assessments of approximately 20-30 Indigenous people from across the country. His work in the northern territories involves mostly Inuit people, but also persons from some other cultural groups. He testified that he has only worked with a small number of people from Akwesasne and that this was through the residential school process.
[76] Overall, Dr. Klassen testified that he has had a “fair bit” of exposure to Indigenous people in the various aspects of his practice and he is often asked to do s. 752.1 assessments for Indigenous offenders.
[77] With respect to his expertise, Dr. Klassen agreed with defence counsel that he has more expertise in the area of anger management than in substance abuse. He further agreed that in his work providing treatment he has not assimilated Indigenous values, though he has read literature about such treatment. He agreed he was not qualified to recommend treatment that incorporates Indigenous treatment and values. He explained that he has had no formal training in how to provide joint treatment with Indigenous values and “evidence-based treatment” contemporaneously.
[78] In reviewing the information that was available to him in conducting his assessment, Dr. Klassen noted that it would have been helpful had he been able to speak to Mr. Hall’s sister Karen and Mr. Hall’s former partner Ms. Jocko. He acknowledged this as a weakness of his report. While Dr. Klassen did not have the benefit of the Gladue report at the time of his assessment (it had not yet been completed), he had read it and considered its contents at the time he gave evidence.
The diagnoses: antisocial personality disorder and substance use disorder
[79] In Dr. Klassen’s opinion, Mr. Hall suffers from antisocial personality disorder (“ASPD”) and substance use disorder. Both are relevant to the assessment of his future risk of violent offending. In his view, while Mr. Hall has had “significant difficulties with substance misuse”, it was his belief that Mr. Hall’s personality style has been central to his offense history.
[80] In assessing Mr. Hall, Dr. Klassen concluded that he was confident that Mr. Hall met 5 of the criteria for ASPD, and possibly 7 of them. In arriving at this conclusion, he considered that Mr. Hall’s history involved living on an Indigenous territory where work opportunities (an issue relevant to assessing the extent to which Mr. Hall met one criterion for ASPD) were limited.
[81] Dr. Klassen testified that ASPD is a personality style, often formed by trauma, that infringes on the rights of others. Persons with ASPD fail to conform to social norms with respect to lawful behaviours. They may disregard the wishes, rights, or feelings of others. They may be deceitful and manipulative for personal profit or pleasure. Impulsivity may be manifested by a failure to plan ahead, and decisions may be made without forethought and without consideration for the consequences to self and others. They often present as irritable and aggressive and may repeatedly get into physical fights and commit acts of physical assault. Disregard for the safety of themselves or others may be seen in their driving behaviour, and they may engage in substance use that has a high risk for harmful consequences. These individuals also tend to be irresponsible in their work behaviour or in their failure to work. They often show little remorse for the consequences of their acts and may be indifferent to, or provide a superficial rationalization for, having hurt, mistreated, or stolen from another. They may minimize the harmful consequences of their actions or may simply be indifferent to those consequences.
[82] Dr. Klassen testified that while ASPD is a condition that is chronically present, the expression of the condition depends on conditions around the person. In his view, this was reflected in Mr. Hall’s case. For instance, Mr. Hall is significantly more controlled when he is in custody than when he is on Cornwall Island. Mr. Hall is also typical of the majority of people with ASPD who will also have a substance abuse problem at some point in their lives. The expression of each of these conditions may be aggravated by the other.
[83] According to Dr. Klassen, personality is not easily changed. Consequently, the treatment for a personality disorder is focused on trying to help people in particular areas where their thinking is dysfunctional – for instance, around anger. He said that people with ASPD tend to see little value in long-term rewards and perceive the world as more hostile than it really is. Treatment programs are targeted for their “thinking errors” and use cognitive behavioural therapy in an effort to aid the individual to control thought patterns and, in so doing, to change their behaviour. Dr. Klassen said that this is the crux of the correctional treatment that CSC would offer to Mr. Hall.
[84] Dr. Klassen also testified about the impact of age in treating persons with ASPD. In his report, he explained that ASPD has a chronic course, but it may become less evident or remit as the individual grows older. In his testimony he further explained that it is not that thought patterns change with age. Rather, behaviourally, individuals with ASPD seem less likely to enact those patterns with age. So, it is not that a person with ASPD is more empathetic at 50; it is just that he or she “doesn’t do as much with their callousness”. Dr. Klassen testified that even in the absence of any treatment, the impact of ageing is clinically meaningful at 50. It is “very meaningful” by 60, when violent behaviour falls to “pretty much zero”. While this is “partly because some risk takers will die by misadventure or suicide” prior to that age, it is still very rare to see very violent offending after age 60. Consequently, he says there “really is no need for serious risk management measures after age 60”.
[85] Insofar as the diagnosis of substance use disorder is concerned, Dr. Klassen assessed that both alcohol and cocaine use were implicated in causing dysfunction, although “[t]he exact role of cocaine, in this gentleman’s offending history, remains somewhat murky”. This is because cocaine use as an aspect of his offending was never mentioned in police reports. The use of cocaine has nevertheless caused legal, relationship, and work problems, and Mr. Hall has lost control over use. Dr. Klassen opined that “[i]t may be that the paranoid thinking, which cocaine intoxication can give rise to, is implicated in his history of jealousy, which has contributed to relationship conflict”.
[86] The evidence for Mr. Hall’s difficulties with alcohol, and its relationship to violent behaviour, is stronger. Dr. Klassen noted that alcohol appears to have had “social and legal consequences for him. He’s driven while impaired, engaged in theft to obtain alcohol, has lost control of his alcohol use, and has reportedly been more aggressive under the influence of alcohol.” Mr. Hall described himself to Dr. Klassen as “cocky and confrontational” when under the influence of alcohol. Alcohol has also been a gateway substance for other substances of misuse.
[87] While Mr. Hall “doesn’t appear to have had significant difficulties with cannabis”, he has equivocated about whether cannabis is a gateway substance or not. Consequently, it was Dr. Klassen’s view that controlling Mr. Hall’s risk would also require a prohibition on consuming cannabis. Dr. Klassen acknowledged that the use of cannabis is not strongly associated with criminal behaviour, and that there were difficulties in assessing whether it was a “gateway” for Mr. Hall to other substances.
[88] Dr. Klassen also clarified that in his opinion, Mr. Hall’s psychiatric issues go beyond substance abuse. In this regard he emphasizes the evidence that Mr. Hall had a very difficult time behaviourally and with aggression well before he started heavy substance use. While Mr. Hall’s issues are more complex than addiction, alcohol use in particular plays a relevant role and needs to be addressed.
[89] In Dr. Klassen’s view, notwithstanding that Mr. Hall was receiving medication for other conditions while at OCDC, the medication he was receiving was either “not indicated” or was of no value. He said it was “ludicrous” that Mr. Hall was being prescribed an anti-psychotic medication based on his recent self-reported symptoms. Dr. Klassen said there was “no question” in his mind that Mr. Hall does not suffer from a psychotic illness.
[90] Dr. Klassen testified that it is not often that he is so categorical in his opinion. In support of his position, he noted that there was nothing in Mr. Hall’s earlier records to reflect a history of psychotic symptoms. Dr. Klassen stated in his report that the onset of such an illness in a person’s 40s is “comparatively speaking, a very rare event”. Further, the “onset of hallucinations, in the absence of significant delusions, is even more rare”. He could find no psychiatric explanation for why these symptoms should first present in custody. In Dr. Klassen’s view, it was more likely that Mr. Hall had voiced symptoms “for instrumental reasons, possibly for some or all of pursuit of ODSP, for intra-institutional transfer or placement, or for access to certain psychotropic medications”. He observed that it is not uncommon for people in custody to list various symptoms with a view to obtaining medications.
[91] Dr. Klassen also noted that in custody, Mr. Hall showed a number of years of “good behavioural control”, which led him to conclude that context is very important for Mr. Hall. Dr. Klassen contrasted this to Mr. Hall’s behaviour while he was on Cornwall Island, surrounded by certain people, and intoxicated. Given that Mr. Hall’s behaviour control is so much better in custody than in the community, Dr. Klassen also said that this suggests Mr. Hall is probably not suffering from other significant mental illnesses, including severe PTSD, which might contribute to his reactivity.
Risk assessment
[92] In terms of quantifying risk, Dr. Klassen explained that the DSM-5 and its diagnoses are not forensic tools. He wrote in his report that “[s]cientific research has consistently shown that actuarial or structured methods of risk assessment are the most accurate. Actuarial methods provide probabilistic estimates of risk, based solely on empirically established relationships between predictors and the outcome of interest”.
[93] Dr. Klassen explained the instruments and tests he used in assessing Mr. Hall (the Psychopathy Checklist-Revised (“PCL-R”) and HCR-20 Version 2 (“V2”) and Version 3 (“V3”)) and why. He considered the fact that Mr. Hall is Indigenous and recent comments by the Supreme Court of Canada about the appropriateness of certain tools for Indigenous offenders. In his report, Dr. Klassen wrote:
I am cognizant of the decision in Ewert v. Canada. Scientific research has consistently shown that structured, or actuarial, methods of risk assessment are the most accurate. While they are imperfect, no alternative is equal or superior. Studies addressing the accuracy of risk assessment tools in indigenous offenders are ongoing, but available evidence indicates that, taken together, most of these tools are applicable to persons of indigenous background; the PCL-R has specifically been so evaluated, and performs as well in persons of indigenous background as with others. Indigenous offenders should have access to the best available risk assessment methodology, which at this time remains structured or actuarial instruments. The HCR-20 was outside the ambit of Ewert.
[94] Dr. Klassen further testified that since Ewert, a number of excellent studies have been done in respect of the PCL-R and Indigenous offenders. He reported that both the HCR-20 and PCL-R have been shown to work in lots of different samples. He acknowledged that while the HCR-20 has not been specifically evaluated in respect of its application to Indigenous offenders, he presumes a sizeable group of Indigenous offenders is included in its samples because of the rates of incarceration for Indigenous offenders in Canada and the use of the offender population at large in various studies. He testified that the HCR-20, while developed in Canada, is used throughout the world and has been shown to be relevant to other cultures. He said he had reasonable confidence in using it to assess Indigenous offenders because it appears to have shown cross-cultural validity.
[95] As between the two tools, the PCL-R is more researched in respect of treatment outcomes, though it is also useful to assess risk. However, the HCR-20 is a more robust predictor of violence risk than the PCL-R. Dr. Klassen also explained that the PCL-R appraises psychopathic traits. This is important because psychopathy is the personality dimension felt to be most related to offending behavior.
The PCL-R
[96] On the PCL-R, Dr. Klassen scored Mr. Hall at 27 out of a possible 40 points. He allowed that this score might have changed had he been able to speak with Mr. Hall’s sister and his former partner, Ms. Jocko, since he would have had more information about Mr. Hall.
[97] This score places Mr. Hall on approximately the 71st percentile with respect to the reference or standardization samples. This means that “[s]imilar-scoring individuals would be expected to present with significant difficulties as regards both community supervision, and treatment responsiveness”. Dr. Klassen emphasized that the PCL-R stratifies people on a continuum. To put the score in context, he explained that the average score for offenders in Canada was about 23, whereas a member of the public would be expected to be under 10. He said that Mr. Hall’s score was “above average in terms of criminality, but not extreme”. He characterized it as a “moderately high score”.
[98] In respect of his treatment prognosis, Dr. Klassen described Mr. Hall as “tabula rasa”. He further testified that while Mr. Hall’s score on the PCL-R was high, it was not “super high”. He said that while there was “reason to be concerned about treatment outcome” and Mr. Hall would have more trouble than average in terms of treatment responsiveness, he would “not be totally nihilistic” about it. Given that Mr. Hall has essentially been untreated (with the possible exception of the treatment described in the Gladue report which he presumes was not the intensive type of treatment provided by CSC), and given his score of 27, Dr. Klassen testified that we “need to be thoughtful and cautious about potential treatment outcome”. He clarified that he probably had used the term “significant” to describe Mr. Hall’s treatment difficulties in his report without sufficiently weighing the use of that term, and that it was “probably too strong” and “a little sloppy”. He said that Mr. Hall would at least have difficulties with treatment response, rather than “significant difficulties”.
[99] However, with regard to Mr. Hall’s responsiveness to supervision, the term “significant difficulties” was the appropriate characterization of Mr. Hall’s likely response. As an example of the challenges Mr. Hall would present under supervision, he noted that Mr. Hall had been able to get antipsychotic medication while in custody based on his self-reporting of symptoms. He noted the clear history of Mr. Hall’s failures while previously supervised by probation services.
The HCR-20
[100] Dr. Klassen’s assessment using both V2 and V3 of the HCR-20 resulted in similar scores. On V2, Mr. Hall’s score was between 28 and 32. On V3, his score was between 27 and 31. Dr. Klassen wrote in his report: “In each case, the lower risk score would correspond with high degrees of community supervision, and the higher score would correspond with an absence of community supervision. Scores in the 30s are associated, empirically, with high to very high risk of violent recidivism. Scores in the high 20s would correspond with moderately high risk of violent recidivism”.
[101] Dr. Klassen explained in his testimony that the HCR-20 can estimate the probability of violent reoffence, but not how severe the violence might be. In terms of the meaning of Mr. Hall’s scores, he said that the low end of the range for Mr. Hall is “moderate to high” and his probability of reoffence is probably in the 50-60% range under “standard release conditions” in a multi-year follow up.
[102] Dr. Klassen explained that these scores are not specific to “LTSO level supervision”, and likely reference a level of supervision that is lower. He said that while there is data that shows that supervision reduces recidivism, there is no literature to say what potential outcomes might be in light of LTSO level supervision. In Dr. Klassen’s view, a high degree of supervision would require an offender to live at a community correctional centre with conditions. A low degree of supervision in this case would see Mr. Hall return to his previous lifestyle. With a high degree of supervision, the lower end of the range of his scores better describe Mr. Hall, while his score at the higher end of the range would be more accurate with a low degree of supervision.
Additional evidence respecting risk assessment and recommendations for Mr. Hall
[103] Dr. Klassen repeatedly cautioned that in terms of the expression of risk arrived at following the application of these tools, all they can tell us is whether persons like Mr. Hall have committed further violent offences. He cannot say whether Mr. Hall will or will not re-offend. Rather, Dr. Klassen can just indicate what category of risk Mr. Hall falls in and what happened with the people in that category.
[104] Dr. Klassen did not score Mr. Hall on any of the instruments purpose-built for assessing risk in the context of intimate partner violence. He explained this was in part because of Mr. Hall’s Indigenous background, and in part because his history of intimate partner violence “is now sufficiently distant that the accuracy of such a risk appraisal (which, using these instruments, would be based on those relationships) seems questionable”.
[105] Dr. Klassen saw “no indications for the introduction of clinical judgment in this case” as regards probability of risk, which is better assessed with actuarial instruments. With respect to “issues of imminence, frequency, and severity of offending, including violent offending”, he explained that there are no actuarial instruments which assist, and “we are left with clinical judgment alone”. In his report, Dr. Klassen provided the following comments about his clinical assessment:
In term [sic] of imminence, this gentleman has had no significant offense-free intervals, since returning to Canada; he does appear to have had offense-free intervals, earlier in his life, in the early 1990s and in the early 2000s; the reasons for those offense-free intervals is [sic] not clear to the undersigned. Collateral information from persons that know this gentleman well might have been of assistance in this regard. Frequency might be expected to become live if this gentleman is again cohabitating in an intimate relationship, as aggressive behaviour, once it occurs in an intimate relationship, will tend to be serial. Severity, certainly at least latterly, appears to have been live.
[106] Ultimately, Dr. Klassen concluded that Mr. Hall “remains at high to very high risk of future aggressive behaviour, if not subject to intensive supervision”. He also observed that at the time of writing his report, Mr. Hall was 50 years of age:
He’s reaching an age where risk for aggressive behaviour will show significant age-related decline. He remains, however, essentially untreated. Further, this gentleman has shown little response to community supervision, with many breaches of conditions, and many efforts to elude apprehension. Mr Hall has expressed an interest in treatment and has stated that he will discontinue alcohol and cocaine use; given that cannabis may be a gateway substance for him, I would recommend discontinuing cannabis use as well.
[107] Dr. Klassen went on:
From a purely psychiatric, risk management perspective, if this gentleman was to receive a short fixed sentence, or no fixed sentence, then given his level of risk, his untreated state, and the difficulties that have been seen with community supervision, there is little or no psychiatric support for “reasonable expectation that a lesser measure…”, or “reasonable possibility of eventual control of the risk in the community”. If this gentleman receives a more substantial fixed sentence, which would allow for both aging, and significant efforts at treatment, then, in the context of intensive community supervision (an LTSO) there could be psychiatric support for “reasonable possibility of eventual control of the risk in the community”. [Emphasis added.]
[108] Dr. Klassen identified the dynamic variables for Mr. Hall which are at least theoretically changeable as follows: his “significant antisociality”; his difficulties with substance use; his “engagement, to greater and lesser degrees, in a criminal subculture, and/or with unstable partners”; his lack of education and employment; and his “relative supervision resistance”. Consequently, from a risk management perspective, Dr. Klassen framed his recommendations in his report in this way:
a. Mr. Hall should receive significant treatment for difficulties with anger management; typically, for offenders at Mr. Hall’s level of risk, 200 hours or more are recommended. This can only be achieved, in Canada, through Correctional Services [sic] Canada.
b. Mr. Hall should receive intervention regarding substance misuse. My comments regarding anger management apply to substance misuse treatment as well.
c. Mr. Hall’s behaviour appears to have been substantially better in custody, than in the community. Consistent with Mr. Hall’s assertion that his interpersonal environment was criminogenic, I would strongly suggest that Mr. Hall not return to his home community on Cornwall Island, at such time as release may be contemplated, indeed he should be released somewhere distant from known associates. I appreciate that Mr. Hall may find this aversive, as he hopes to reunite with his children. His children, I suspect, have significant needs of their own, those needs may well be in excess of Mr. Hall’s current ability to meet them, and I would submit that Mr. Hall should establish himself in the community prior to any attempts to raise his children.
d. Mr. Hall should be required to report any actual or potential intimate relationship partners to those supervising him, at such time as he may return to the community. In practice, of course, enlisting the support of intimate partners, in risk managing an individual, can be challenging, as, I would submit, has been seen in this case.
e. Mr. Hall should not be supported for ODSP. Rather, Mr. Hall should receive education or training, and should be gainfully employed.
f. Mr. Hall, at such time as he may be returned to the community, should return only under the auspices of a residency condition, at a Community Correctional Centre (CCC).
g. Those supervising Mr. Hall should have access to his financial records, to ascertain that he is not either a) returning to substance use or b) again engaging in criminal self-support (if his financial resources seem inconsistent with his lifestyle).
[109] As for the intensive treatment required by Mr. Hall, Dr. Klassen testified that there was “no specific dose in hours”. However, for a high risk offender, it would be necessary to have “high intensity treatment”. Typically over 200 treatment hours would be required, though this was “not a surgical prescription”. His recommendation was that Mr. Hall should receive the higher range of treatment options delivered by CSC, where the opportunity for this kind of high intensity treatment was available. He testified that “somewhere around 150-300 hours” would be the dose of treatment for someone like Mr. Hall. His understanding was that a sentence need not be necessarily longer to permit that treatment to occur because CSC was committed to getting people the treatment they need regardless of sentence length. The length of any sentence imposed, he said, was not meaningful to him for this reason.
[110] However, Dr. Klassen also allowed that Mr. Hall’s treatment needs could be lower. He said the “wildcard” in Mr. Hall’s case is how much of his presentation as high risk comes from spending his life on Cornwall Island in a highly criminogenic context. He said that it was at least theoretically possible that his treatment needs are lower because some quantum of his risk derives from context and not specifically personality. Dr. Klassen said that the other important factor “we need to talk about” with Mr. Hall was his age.
[111] Dr. Klassen was asked about the significance of the serious violent offending Mr. Hall has engaged in during his 40s. Dr. Klassen responded by noting that between 1986-2002, Mr. Hall engaged in violent offending every year except with one 4-year gap. In the years after that, there was another gap of 5 years between 2002-2007 that “we don’t understand”. From 2009 onward, there are only 4 years with violent offending. The violence has become less frequent than when he was younger. Dr. Klassen said that while he appreciates the severity of Mr. Hall’s recent offending, he nevertheless saw evidence of age-related decline in Mr. Hall’s case, at least insofar as its frequency was concerned. He said he wishes he understood why the violence has reached that level of severity, and that he does not have a good understanding of why there have been three very serious incidents latterly.
[112] Dr. Klassen further explained his opinion that there could be psychiatric support for a sentence which included a “more substantial” fixed sentence followed by an LTSO, which would allow for both aging and significant efforts at treatment. This view reflects the literature that suggests that Mr. Hall is of an age where as his age goes up, his need for treatment goes down. Dr. Klassen testified that if Mr. Hall is 60, “he probably doesn’t need treatment” given his level of risk at that age. However, at 50, Mr. Hall should not be released without a good response to treatment. He said that between the two ages, “those forces are in flux, on average”. He again clarified that he was not saying that if Mr. Hall received a fixed sentence which saw him released into the community at 60, he would not need treatment at all. Rather, he was describing the hypothetical offender, about whom he said he would “be ok” if they didn’t get treatment if released at 60.
[113] When asked if he had a view about Mr. Hall being sentenced to a fixed term with an LTSO, Dr. Klassen said that Mr. Hall should make his way “safely to 60”. How much of that time was spent in custody or under the terms of an LTSO was not for him to say.
[114] Finally, Dr. Klassen explained that he tries to offer prognoses that are supported by the literature, and not just a clinical opinion. He said the only thing he can say from a treatment outcome perspective for Mr. Hall is that: 1) our understanding of how well CSC treatment works is murky; 2) Mr. Hall’s PCL-R score mitigates somewhat against a successful outcome because it is somewhat high; and 3) his treatment needs could change considerably over the next decade when he approaches 60.
[115] Dr. Klassen testified that over this next decade, on average, Mr. Hall’s aging will reduce the need for treatment intensity. While at 50, Mr. Hall “still looks like he needs intense treatment”, if he were released on his 60th birthday, on average, at that point, he may need very little treatment. Dr. Klassen said that what he was trying to convey was that he “thinks [Mr. Hall] has on average, another decade where we need to work with him. How we work with him will probably depend on how he responds to our engagement efforts”. He emphasized that this conclusion was based on the average of a large data set, and Mr. Hall may or may not prove to be average among those offenders in that data set.
Additional evidence about Dr. Klassen’s recommendations for managing Mr. Hall’s risk
[116] With respect to the recommendations he made with a view to management of the risk posed by Mr. Hall, Dr. Klassen expanded on his reasoning for the recommendations during his evidence.
[117] On the question of Mr. Hall’s potential return to Cornwall Island upon release, Dr. Klassen was alive to the tension between the benefits to Mr. Hall should he return to his home community, particularly as an Indigenous person, but also the risks. In effect, his view was that the risks were more significant to the potential for recidivism. He explained that if Mr. Hall were to return to Cornwall Island, he would be concerned about his return to a community where his associates were poor influences. Dr. Klassen explained that this was not a comment on Mr. Hall’s home community in particular, but a recognition of the empirical literature demonstrating that association with persons with criminogenic profiles is associated with risk.
[118] In any case, Dr. Klassen said that he understood R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, allowed that where there were serious risk concerns, those might supercede some of the “cultural imperatives” which should be considered in sentencing. In his view, in this instance, the public safety and risk issues should attract more of our attention than the reintegration issues, at least at the first instance. He suggested that if Mr. Hall “does well on release, that equation can and maybe should change”.
[119] In making this recommendation, Dr. Klassen also considered Mr. Hall’s comments to him about the importance of treatment within an Indigenous context. When he testified, Dr. Klassen recognized that Mr. Hall told the Gladue report author that he wanted treatment within an Indigenous context. However, Dr. Klassen did not get that sense from Mr. Hall when they met. In Dr. Klassen’s view, this did not undermine the importance of the Gladue component. However, in his assessment, he found Mr. Hall’s motivation for treatment through an Indigenous lens was modest. Regardless, in his view, the balance right now favours risk management over cultural reintegration. He emphasized that Mr. Hall himself told him that the environment of Cornwall Island was bad for him. Dr. Klassen further clarified that he was not saying that Mr. Hall should not have treatment through an Indigenous lens, but that he was saying that Mr. Hall should not be on Cornwall Island.
[120] With respect to the recommendation that Mr. Hall not be supported in a claim for ODSP, Dr. Klassen said he realized this may seem counterintuitive, but that proper use of daytime hours is known to be a variable that can matter in terms of risk. He wants to ensure that Mr. Hall’s days have some structure. In view of an injury sustained by Mr. Hall he said that if there was an orthopedic opinion that Mr. Hall could not work, this recommendation would have to be reconsidered. Dr. Klassen noted too that it was an option for Mr. Hall to have some work even while receiving ODSP and that this might be an option upon his release. He suggested that it would be preferable for Mr. Hall to get “time limited ODSP” for 1-2 years while he developed skills to enhance his employability.
[121] Dr. Klassen also further expanded on what would be appropriate in treating Mr. Hall’s substance use disorder. He thought consideration should be given to providing medication to assist Mr. Hall with his alcohol abuse, in addition to psychiatric treatment. He noted that at the time they last met, Mr. Hall was open to all the treatment proposals Dr. Klassen was recommending, though he did not want to take medication for alcohol abuse.
[122] With respect to the recommendation relating to the reporting of domestic relationships, this reflects the evidence that Mr. Hall has had issues in his intimate relationships. Dr. Klassen noted that while the records that were made available for the purposes of his assessment contained many allegations of intimate partner violence, for the most part, those allegations had not been proven in court. He explained that Mr. Hall reported that he was not aggressive, and the information to the contrary had not been subject to close scrutiny. He said he “proceeded on the basis that there is some truth” but that he “doesn’t give the same weight to unproven allegations”. He said that the “overall flavour” is that Mr. Hall’s past relationships were chaotic, and in certain cases aggressive. In his report, he said this about Mr. Hall’s risk for future domestic violence offences: “Frequency might be expected to become live if this gentleman is again cohabit[at]ing in an intimate relationship, as aggressive behaviour, once it occurs in an intimate relationship, will tend to be serial.”
[123] Dr. Klassen was asked about his familiarity with the Waseskun Healing Lodge and whether treatment there might benefit Mr. Hall. Dr. Klassen agreed that this might be a “good place to reintroduce Mr. Hall to culturally specific practices and be with others who share that”. This might serve a purpose for Mr. Hall. However, he said that there was no data to support the conclusion that this would reduce the risk posed by Mr. Hall. Dr. Klassen testified that the literature does not support the conclusion that treatment to improve how people feel reduces their risk for subsequent offending, though such treatment might improve their lives in other ways. Dr. Klassen said he would want to know what skills Mr. Hall would develop at Waseskun or a similar facility. While there might be a benefit to Mr. Hall personally from certain types of treatment, Dr. Klassen says that he would start with the treatment that teaches him skills to manage his behaviour since the objective is “to get him out of custody”. He said that treatment for substance abuse would be “a really important place to start”. He clarified that he was not saying that culturally focused treatment and evidence-based treatment are mutually exclusive. Rather, his concern is only that if we focus entirely on the cultural piece, “there is a missing element there”. There would need to be evidence-based practices in treatment efforts as well for risk to be reduced.
Correctional information
[124] In keeping with the positions of the parties, the evidence on the hearing has focused on sentences within a federal institution.
[125] I have heard evidence from officials with the Correctional Service of Canada (“CSC”) and the National Parole Board (“NPB”). I have further heard evidence relating to a CSC partner, the Waseskun Healing Center. I summarize below the evidence which relates to the central issues in this application.
The evidence of Petrina Lemieux
[126] Petrina Lemieux is the Regional Program Manager for the Ontario Region at CSC.
[127] Ms. Lemieux explained the process by which offenders are assessed for treatment and how a correctional plan is developed to address the offender’s needs. If an offender is deemed “high risk”, he or she will be placed in a high intensity program. Indigenous offenders may also access programming with a cultural focus. These programs are available regardless of an offender’s security classification.
[128] The initial assessment process for Indigenous offenders also involves an “elder review”. A comprehensive interview is completed with the offender and a report describing the offender’s Indigenous history is written either by or in conjunction with the elder.
[129] An offender who participates in a high intensity treatment program (“the treatment program”) will subsequently be placed on a “maintenance program”. The maintenance program reinforces what was learned during the treatment program. A facilitator will work on things the offender might need additional assistance with that were not adequately addressed in the treatment program. Whereas the treatment program involves about 200 hours, the maintenance program involves roughly 100 hours where it follows a high intensity treatment program. The program hours are set based on research which suggests high risk offenders require about 300 treatment hours. The maintenance program may be taken over and over again until it is felt that the offender no longer requires it. If an offender has stopped the maintenance program, he or she may also return to it for additional support as needed.
[130] Within the treatment program, offenders may target specific issues such as substance abuse. The work on this issue will be continuous and targeted throughout the program modules. For a violent offender, treatment is similarly continuous. It targets the offender’s thinking patterns, among other issues.
[131] For Indigenous offenders who opt to receive it, there are some additional components to the treatment that is offered by CSC at all its institutions. It offers education aimed at increasing the understanding of challenges Indigenous people have faced that have contributed to their involvement in the criminal justice system. This part of the program is delivered by Indigenous CSC officers or other persons who are assessed as competent to deliver that stream of programming. Indigenous offenders will also have an opportunity to work with elders who are contracted with CSC and who provide cultural and spiritual teachings, are involved with the offender in Indigenous ceremonies, and provide general support.
[132] Ms. Lemieux said that individuation of the program based on an offender’s specific First Nations membership is a difficult issue which is explored with elders and staff within CSC’s “Indigenous department”. She was unaware of any specific policy addressing this issue. While she was aware of Mohawk elders and staff working within CSC in Ontario, she could not be more precise about where they worked.
[133] Ms. Lemieux testified that the length of an offender’s sentence does not impact the length of treatment programs, though it does impact when they will designate the offender to receive it. If the sentence is less than 4 years, they will try to deliver the program at the beginning of the sentence (while the offender is at the assessment unit) and their priority is to get the offender into the program as soon as possible. CSC aims to ensure that the offender may complete the program before any release decisions are made by the parole board, or other significant decisions are made regarding their sentence. For offenders serving sentences longer than 4 years, they will typically have to wait until they are sent to their parent institution before treatment is offered.
[134] In addition to addressing an offender’s criminogenic needs, and in the event of acute psychiatric issues which are not addressed in an offender’s correctional program, offenders have access to psychologists and psychiatrists. This treatment is separate and apart from the correctional program.
[135] While an offender cannot be forced to participate in their correctional program, the refusal to do so will have consequences for things like requests to transfer to an institution with a lower security designation and at parole hearings. CSC has “motivational correctional programme officers” who will work one-on-one with offenders to try to motivate them and explain the importance of participating.
[136] If an offender is released on parole, a parole officer in the community will become involved and develop a “community strategy” for the offender. The maintenance program may be continued in the community setting, and it may be a condition of release to continue to participate in programming. Specific programing for Indigenous offenders continues to be available in the community and is also delivered by Indigenous officers and elders.
[137] Ms. Lemieux testified that a DO or LTO designation does not affect the programming that is available to offenders either in custody or on parole.
The evidence of Karen Thomson
[138] Karen Thomson is a regional manager with the NPB. She explained the types of community release the NPB may grant and the process by which information is provided to the NPB for its hearings. She also confirmed the nature and timeline for parole eligibility for dangerous offenders, which varies based on whether the sentence is fixed or indeterminate.
[139] For offenders whose sentence includes an LTSO, the NPB will receive recommendations from CSC about what conditions to impose as part of that order. Ms. Thomson confirmed that a residency condition is available for 365 days at a time where there is concern an offender might commit certain offences (set out in a schedule). Such a condition, once imposed, may be renewed upon review. A residency condition will require an offender to live in a community-based facility. This could include a community correctional centre. Such a condition is quite commonly imposed for offenders with LTSOs. CSC decides where the offender will reside if a residency condition is imposed.
[140] In addition to the houses run by CSC, there are private agencies that operate residences where offenders may be placed. Ms. Thomson said that there is an Inuit residence in Ottawa. She was also aware of healing lodges that had beds available, including for day parole release, though she did not know their particulars.
[141] Other conditions are imposed by the NPB when they are “reasonable and necessary” to manage risk and promote an offender’s reintegration into the community. Insofar as mandatory conditions are concerned, while one is that offenders must stay within Canadian borders, there is a mechanism that permits the NPB to modify that condition where, for instance, an offender’s First Nations territory extends into the United States, as is the case with Akwesasne. CSC would investigate additional community supports available for offenders based on the community to which they were being released.
[142] While the NPB sets the conditions for an LTSO, CSC monitors and supervises offenders to ensure the conditions are being followed. Various options are available in the event of a breach of the terms of an LTSO and the terms of the LTSO may be suspended. The NPB may recommend that an offender be charged for breaching the LTSO. In contrast, an offender released on parole can have their parole revoked and be returned to their institution if they breach the terms of their parole or their risk is believed to be elevated. For an offender with an indeterminate sentence released on parole, parole would last the rest of their life.
[143] The NPB does training of its members in respect of Indigenous issues and works with elders. Indigenous offenders may have an “elder assisted hearing”. She confirmed the NPB is also required to apply Gladue factors and consider the social history of an offender’s First Nation and factors related to the offender’s upbringing and community in considering a release plan. She was aware of one NPB member in this region with “Indigenous links”.
[144] In its decision-making, the NPB’s paramount consideration is public safety. However, it must also apply the least restrictive means available to manage the risk posed by an offender.
[145] Ms. Thomson was asked about her knowledge of the Waseskun Healing Center. She confirmed that offenders from Ontario have been sent there on release.
The evidence of Angela Haydon
[146] Angela Haydon works for CSC and manages a team of parole officers in the Ottawa area.
[147] Ms. Haydon described how offenders are supervised in the community. Offenders who are higher risk or have greater needs meet with parole officers more frequently. Minimum contacts of twice per week are required for dangerous offenders and persons released onto LTSOs at warrant expiry. This constitutes “intensive supervision”. Persons who are released on other forms of parole prior to starting the LTSO are not subject to the same supervision protocol and likely have four contacts per month with their parole officer.
[148] Meetings with parole officers take place Monday to Friday. There are no surprise home visits. Visits will be planned in the community or at the offender’s residence.
[149] In terms of substance abuse issues, Ms. Haydon confirmed that if an offender has a condition to abstain from substance use, they can require urinalysis testing. An offender would be given a minimum of two hours advance notice of the test, which would be administered by a trained collector. Refusal to provide a sample would be considered a breach of the condition, and the parole officer would then determine how best to address the breach and continue to manage the offender. Similarly, it would be a breach to refuse to attend therapy for substance abuse where a condition required an offender to follow a treatment plan. At least one facility in Guelph has a six-month program to address substance abuse. Offenders have to be accepted to that facility in order to be considered for attendance there.
[150] Ms. Haydon explained how CSC determines where an offender will be released. Ideally, offenders will be returned to the place that is most familiar to them and where they have supports. However, the programs the person needs and where they are available will be an important consideration. For instance, if the community does not have a halfway house, where an offender has a residency condition, they will have to seek an alternate release destination.
[151] In making a decision about where an offender is to be released, while CSC officials try to support an offender’s wishes about where to be placed, they consider all information. If a concern has been expressed about the offender returning to his home community, they would investigate whether the basis for that concern remained a live issue. If it is, she said they would likely seek an alternate release destination until such time as the concern was no longer present.
[152] Ms. Haydon confirmed that she was aware of offenders who had been released to the Waseskun Healing Center. She confirmed there is an administrative process which permits offenders to transfer between regions during their release in the community so that offenders from Ontario may attend this facility in Quebec. She was not aware of any similar facility in Ontario, although there is a halfway house for Inuit offenders in Ottawa which will also accept non-Inuit offenders.
[153] Ms. Haydon testified that parole officers receive training in working with Indigenous offenders. Within the Ottawa region, they have a parole officer who works out of the Cornwall area who has a relationship with Akwesasne council members and will connect the offender to the supports available on the reserve. Modification of geographical restrictions is possible – for instance, to permit an offender to attend treatment. Ms. Haydon was aware of at least one offender from the Akwesasne area who had recently been approved to attend a treatment program beyond Canadian borders. She explained that where an offender was a flight risk, they might not be supportive of this approach. Travel permits may also be issued to permit a person from Cornwall Island to enter Quebec (where part of the Akwesasne territory is located).
[154] Ms. Haydon explained that some halfway houses are run by CSC, while others are privately owned. The facilities run by CSC will take offenders who are not accepted into a privately run halfway house, which typically occurs if an offender has poor performance in the custodial institution. No halfway house has a policy which excludes dangerous offenders. Twenty-four-hour supervision is available at halfway houses. The houses run by CSC, known as “Community Correctional Centers” (“CCCs”), also have parole officers who work from those locations.
[155] Ms. Haydon described the options available to community-based parole officers to manage offenders whose risk level is rising or who have breached a release condition. These include the option of issuing a warrant of apprehension to return the offender to custody to permit a full investigation of a breach or to allow other measures to be put in place. There are some differences in the approach depending on whether the offender is serving a determinate or indeterminate sentence. Such warrants may also be cancelled where appropriate.
[156] Where a breach of an LTSO occurs, this is immediately reported to Ottawa police because such breaches are also criminal offences. If charges are laid, then the court process takes over. Persons serving LTSOs who have reached warrant expiry cannot be returned to custody, though they may remain in custody for the period on remand when the investigation occurs and charges are laid. If a new charge is laid, then the LTSO is interrupted for any time the offender serves a sentence for their breach. Once that sentence expires, then the LTSO resumes. The NPB may not cancel an LTSO.
[157] In the case of a dangerous offender serving an indeterminate sentence who breaches or whose risk becomes so elevated that he cannot be managed in the community, the parole officer has the option of forwarding the case to the NPB with a recommendation that the offender be recommitted to custody. The NPB would make the ultimate decision.
The Waseskun Healing Center
[158] The Waseskun Healing Center is a 34-bed facility located in the foothills of the Laurentians in the Lanaudière region of Quebec. Waseskun’s literature indicates it is a non-profit Indigenous organization affiliated with CSC whose goal is to facilitate the holistic healing of Indigenous offenders who have committed crimes and violent acts, often related to drug and alcohol abuse, and who have been transferred to Waseskun as residents in order to foster their successful re-entry into their families, communities, and nations.
[159] Brian Sarwer-Foner is the liaison officer at Waseskun Healing Center. He testified about the services offered there and about Waseskun’s relationship with CSC.
[160] Waseskun’s core programs focus on healthy relationships, as well as addictions and anger management. It also has programs that address social reintegration, such as courses focused on how to live in the community and improve parenting skills. Mr. Sarwer-Foner explained that Waseskun addresses the criminogenic factors of offenders and that this is a central part of the therapy they offer. However, it also offers culturally focused therapy and initiatives (such as regular opportunities to participate in smudging and sweat lodges) with a view to healing pain. Offenders also work with elders on a one-on-one basis. Mr. Sarwer-Foner said the opportunities that Waseskun offers for healing pain are difficult to achieve in jail even with Indigenous-focused programs. He said that ultimately Waseskun is a healing center, and that its goal is to foster the reintegration of its residents into the community. People most often come to Waseskun at the end of their sentence as the last step in their preparation for release into the community.
[161] Mr. Sarwer-Foner confirmed that offenders may come to Waseskun by way of a lateral transfer from a minimum-security federal institution (although persons in medium security may be accepted once they are approved for a minimum-security designation), or while on some form of parole release. He testified that Waseskun is a direct partner with CSC and that CSC is very familiar with the content of the programs Waseskun offers.
[162] Individuals must apply to be accepted at Waseskun. A committee at Waseskun assesses applicants and determines whether the center will accept them, although the final decision rests with the director. Waseskun will not accept a person who has recently been violent or who is constantly breaking the rules and has shown poor behaviour in custody, since the center cannot assume the risk such individuals will conform to its rules. Offenders who are not genuinely motivated to improve themselves will not be accepted.
[163] Persons who have been designated as dangerous offenders or long-term offenders are not necessarily excluded by admissibility criteria at Waseskun. While the center is concerned about safety, including that of their staff, the center recognizes that it is possible for people with these designations to make significant changes. While it will look very carefully at such applicants, Waseskun takes the position that such persons deserve a chance if they are sincere and committed. Mr. Sarwer-Foner said that the chances are that a person designated as a dangerous offender will not be approved, but they do work on a case-by-case basis. In any case, ultimately, it is up to either CSC or the NPB to finalize the approval of an inmate’s placement at Waseskun.
The positions of the parties
The Crown
[164] The Crown seeks to have Mr. Hall designated a dangerous offender and sentenced to an indeterminate prison sentence. The Crown submits that over the course of his adult life, Mr. Hall has failed to control himself, has not ben controlled or controllable while in the community, has repeatedly failed at being supervised, and has repeatedly committed offences of egregious violence.
[165] The central issue to be decided is whether the evidence supports a reasonable expectation that a lesser measure than an indeterminate sentence will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. On that issue, the Crown argues that there is no evidence beyond mere expressions of hope or speculation to satisfy the court that “there is any reasonable possibility that Mr. Hall’s risk to re-offend will be controlled in the community within an appropriate period of time”. Counsel emphasizes Mr. Hall’s failures to report to probation and abscond from supervision, particularly during the course of his last probation orders. Those probation orders were in effect when he committed the index offences. The Crown says this demonstrates the inadequacy of court orders to protect the public from Mr. Hall.
[166] The Crown further argues that the conditions that might be imposed on an LTSO, and the supervision in place at a halfway house, are inadequate to supervise Mr. Hall to the level required. In the main, this is because Mr. Hall’s supervision would depend upon his self-reporting about his daily activities. Counsel submits that the allure of illicit work for Mr. Hall far outweighs any realistic expectation that he will find and keep legitimate employment. He also has limited support and pro-social ties outside prison, and no clear plan regarding where he would live or work after release.
[167] The Crown submits that Mr. Hall’s history of anti-social behaviour allows for no basis to conclude that he will attempt to reform his behaviour once out of prison, whether subject to supervision or not. Counsel emphasizes Mr. Hall’s score on the psychopathy checklist, his ability to manipulate others, and his tendency to be deceitful as factors that will further complicate any attempt to manage or control him. Since Mr. Hall has been behaving this way his whole life, he is less likely to change and is likely to present significant difficulties with both treatment and supervision.
[168] To the extent that Dr. Klassen’s opinion provides support for a determinate sentence followed by an LTSO, the Crown argues that this opinion is premised on too many contingencies, including significant reliance on Mr. Hall’s own efforts at treatment and speculation that his violent offending will decrease with age. The Crown argues that this is woefully insufficient to protect the public.
[169] The Crown submits that the court should not place any weight upon Dr. Klassen’s evidence about general patterns of reduced offending with age. The Crown submits that Dr. Klassen’s opinion that Mr. Hall is showing evidence of age-related decline in frequency of his offending is untenable. The Crown submits that the evidence is to the contrary and shows that Mr. Hall is increasing his violent offending with age, since this pattern has become worse, and not better, since 2013.
[170] The Crown also argues that Dr. Klassen could not provide any evidence specific to Mr. Hall linking him to the general trend towards a reduction in violent offending observed in similar offenders. He could not say with any certainty when Mr. Hall’s violence would actually decrease, or by what measure Mr. Hall’s violence would be decreased.
[171] Insofar as Gladue considerations are concerned, the Crown accepts that there is a basis for concluding that systemic and background factors have played a part in bringing Mr. Hall before the court. Counsel submits that the evidence does not disclose a basis to conclude that culturally specific treatment or programming can sufficiently address or mitigate the ongoing risk that Mr. Hall presents to the public, even if it might be of personal assistance to him. The Crown submits that the Gladue factors do not warrant a lesser measure than an indeterminate sentence, which is the least restrictive sentence which sufficiently protects the public.
The defence
[172] The defence concedes that the criteria for a dangerous offender designation have been met. However, counsel urges the court to impose a sentence under s. 753(4)(c) of the Criminal Code. Counsel submits that a determinate sentence of 8 years, less credit for presentence custody, is appropriate in the circumstances. In support of that submission, counsel highlights the framework set out for judges deciding on a sentencing option under s. 753(4) in R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936. While the defence says it has proposed a sentence for Mr. Hall which is longer than would otherwise be appropriate, this position reflects both the law as set out in R. v. Spilman, 2018 ONCA 551, 362 C.C.C. (3d) 415, and the evidence heard by the court regarding Mr. Hall’s treatment needs and how they might be served in a federal institution.
[173] Counsel emphasizes throughout his submissions that Mr. Hall has never been given any help or consistent treatment to deal with how he was raised. He highlights Gladue considerations and the history of Indigenous peoples and how this has impacted Mr. Hall.
[174] Counsel argues that the evidence does show that Mr. Hall responds to treatment since after he attended Partridge House, Mr. Hall remained sober for 18 months. Mr. Hall has not had a similar opportunity since 1990. Counsel submits that with the treatment and support at the intensity level offered by CSC, Mr. Hall would likely be even more successful.
[175] The defence says the evidence shows that Mr. Hall is willing to take treatment. In addition to comments made to the Gladue report writer and others, his conduct while at OCDC demonstrates that he is showing initiative and wants to get the tools to allow him to live a different life. It also shows that he gets along well while in jail where he is noted to be respectful and calm.
[176] Counsel submits that the treatment offered at CSC is precisely what Mr. Hall needs and that their programmes fulfill the treatment recommendations made by Dr. Klassen. The defence argues that if provided with this treatment opportunity, it is more probable than not that this change Mr. Hall to the point that he would no longer be a risk to the public. Counsel emphasizes Dr. Klassen’s view that if a sentence were imposed that brought Mr. Hall to the age of 60, the risk to the public would diminish significantly.
[177] Counsel also emphasizes that treatment at a facility such as Waseskun would further assist Mr. Hall, as will the supports he has from family and friends in his Indigenous community. Counsel emphasizes how important it is for Mr. Hall to receive treatment with a cultural focus while at a federal institution as well.
[178] Counsel acknowledges that Mr. Hall does not have a good record on probation, but submits that it is common for the courts to see similar criminal records for breaching given the practice of overcharging breaches of court orders. Counsel submits that with better supervision, such as that available on an LTSO (should the court consider it necessary), Mr. Hall could be expected to succeed in the community.
Analysis
Dangerous Offender Designation Stage
The legal principles
[179] Since the 2008 amendments to the dangerous offender provisions, dangerous offender applications involve two stages for offenders who meet the criteria – the designation stage and the penalty stage. All of the evidence adduced during a dangerous offender hearing must be considered at both stages of the sentencing judge’s analysis: Boutilier, at para. 44.
[180] A prospective assessment of future risk posed by an offender is embedded within the dangerous offender criteria: Boutilier, at paras. 44-45. Once the criteria are met, a judge “shall” designate an offender as dangerous “only if he or she is satisfied beyond a reasonable doubt that the offender actually constitutes a future threat to safety in light of all the relevant evidence”: Boutilier, at para. 41. An offender “will not be designated as dangerous if their treatment prospects are so compelling that the sentencing judge cannot conclude beyond a reasonable doubt that they present a high likelihood of harmful recidivism or that their violent pattern is intractable”: Boutilier, at para. 45. However, treatment prospects that fall below this threshold will still be relevant in choosing the sentence required to adequately protect the public: Boutilier, at para. 45.
[181] At the designation stage, the Crown bears the onus of proof: Spilman, at para. 26.
The principles applied
[182] In its notice of application in this case, the Crown indicates that it is seeking a dangerous offender designation based upon the criteria set out in ss. 753(1)(a)(i), (ii), and (iii) of the Criminal Code. The Crown further indicates that in support of its application, it is relying on the facts and circumstances relating to Mr. Hall’s prior aggravated assault convictions, his convictions involving the careless use of the handgun, his assault by spitting and uttering threats to his former partner Ms. Jocko, and his convictions for breaching court orders.
[183] The defence confirmed at the outset of the hearing that the designation is not contested. The defence has made no further submissions on the issue.
[184] I agree with the joint position of the parties that the evidence shows that Mr. Hall satisfies the criteria for a dangerous offender designation under s. 753(1)(a). As a preliminary matter, it is clear that the predicate offences (aggravated assault and choking) are serious personal injury offences. The totality of the evidence, including the history of Mr. Hall’s criminality and the expert evidence about his ongoing risk for violent offending, also satisfies me beyond a reasonable doubt that Mr. Hall constitutes a threat to the life, safety, or physical or mental well being of other persons on the basis of the criteria set out in ss. 753(1)(a)(i) and (ii).
[185] With respect to the criteria in s. 753(1)(a)(i), I am satisfied beyond a reasonable doubt that the offences form part of a pattern of repetitive behaviour showing that Mr. Hall has failed to restrain his behaviour. I am satisfied beyond a reasonable doubt based on the totality of the evidence that Mr. Hall has shown a likelihood of causing injury to other persons or inflicting severe psychological damage upon them, through his failure in the future to restrain his behaviour. In support of these findings, I rely upon the fact that Mr. Hall committed three aggravated assaults in the span of five years, the last of which is one of the index offences. Notwithstanding that Mr. Hall used a bat during the index offences, while he used a knife to inflict injury during the first two aggravated assaults he committed, the severity of the assaults and Mr. Hall’s disregard for the consequences of his actions in inflicting them is similar. These three offences form a pattern of causing injury or inflicting severe psychological damage upon other persons: R. v. Hogg, 2011 ONCA 840, 287 O.A.C. 82, at paras. 39-40; R. v. White, 2020 ONCA 207, 149 O.R. (3d) 693, at para. 37; and R. v. Szostak, 2014 ONCA 15, 118 O.R. (3d) 401 at paras. 56-58 and 63.
[186] The same evidence and reasoning leads me to find beyond a reasonable doubt that Mr. Hall has also exhibited a pattern of persistent aggressive behaviour showing a substantial degree of indifference with respect to the reasonably foreseeable consequences to other persons. That his conduct during the three occasions he committed aggravated assaults is “aggressive” is self-evident. This pattern, of which the index offences form a part, shows a substantial degree of indifference on the part of Mr. Hall respecting the reasonably foreseeable consequences to other persons of his behaviour. He also meets the criteria for a dangerous offender designation under s. 753(1)(a)(ii): see e.g., R. v. B. (D.), 2015 ONSC 5900, at para. 188 (“D.B.”); Hogg, at para. 39; R. v. Neve, 1999 ABCA 206, 237 A.R. 201, at para. 113; and Szostak at para. 63.
[187] Given these conclusions, it is unnecessary to further consider whether he meets the criteria under s. 753(1)(a)(iii).
[188] While the additional offences committed by Mr. Hall involving violence or weapons are relevant to other issues on this application, I do not find that they form part of the pattern of repetitive behaviour or pattern of persistent aggressive behaviour in making my findings under ss. 753(1)(a)(i) and (ii).
Penalty Stage – Imposing the Appropriate sentence
The legal principles
[189] The dangerous offender provisions in the Criminal Code have a long history. As I have said, the current regime came into effect following legislative amendments in 2008. In Boutilier, at para. 89, the Supreme Court of Canada confirmed the constitutionality of ss. 753(1) and 753(4.1), the provisions at the heart of the new regime.
[190] The amendments notwithstanding, certain principles from the earlier jurisprudence remain applicable when considering the appropriate sentence following a dangerous offender designation. Boutilier confirms the Supreme Court of Canada’s consistent direction that dangerous offender proceedings are sentencing proceedings. Accordingly, the principles and mandatory guidelines outlined in ss. 718 to 718.2 apply: Boutilier, at para. 53. The court specifically highlights that the jurisprudence since the amendments confirms that “the principle in s. 718.2(e) requiring judges to pay attention to the circumstances of Aboriginal offenders in sentencing proceedings” applies: Boutilier, at para. 54.
[191] Public protection is the general purpose of the dangerous offender provisions. While s. 753(4.1) references only the objective of public protection and this reflects the regime’s purpose, that objective does not operate to the exclusion of all others. Boutilier explains that the protection of the public is an enhanced sentencing objective for individuals who have been designated dangerous, even while sentencing judges retain the discretion to “look at the whole picture”: Boutilier, at para. 56; Spillman, at para. 28.
[192] Consequently, the court in Boutilier, at para. 60, held that properly read, the most recent dangerous offender legislation codifies the law set out in the pre-amendment case of R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357. In particular, it codifies the principle that in order to properly exercise his or her discretion under s. 753(4) of the Criminal Code, the sentencing judge must impose the least intrusive sentence required to achieve the primary purpose of the legislation: Boutilier, at para. 60.
[193] Further, Boutilier confirms, at paras. 62-63, that nothing in the legislation
removes the obligation incumbent on a sentencing judge to consider all sentencing principles in order to choose a sentence that is fit for a specific offender.… [A]n offender’s moral culpability, the seriousness of the offence, mitigating factors, and principles developed for Indigenous offenders are each part of the sentencing process under the dangerous offender scheme. Each of these considerations is relevant to deciding whether or not a lesser sentence would sufficiently protect the public.
[194] Boutilier ultimately directs, at para. 70, that “[s]ection 753(4.1) reflects the fact that, just as nothing less than a sentence reducing the risk to an acceptable level is required for a dangerous offender, so too is nothing more required”.
[195] By virtue of s. 753 (4) of the Code, having designated an offender as a dangerous offender, a sentencing judge may impose an indeterminate sentence (s. 753(4)(a)), a sentence of a minimum of two years along with a LTSO order for period of up to 10 years (s. 753(4)(b), or a fixed sentence (s. 753(4)(c).
[196] With respect to the more practical issues in the application of the provisions, Boutilier confirms that at the penalty stage, there is no onus on either party: Boutilier, at para. 71. The court also provides a framework to be used to guide a sentencing judge’s analysis in determining the appropriate sentence: see Boutilier, at para. 70. The Boutilier directives were recently summarized, along with other relevant principles from the jurisprudence, in R. v. K.P., 2020 ONCA 534, 152 O.R. (3d) 145, at paras. 10-14, as follows:
Section 753(4.1) provides guidance on how the sentencing judge should exercise discretion when choosing among the three options:
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.
To determine whether a lesser measure will adequately protect the public, there must be evidence before the sentencing judge that the dangerous offender can be safely released into the community. However, as the majority of the Supreme Court of Canada held in Boutilier, at para. 76, s. 753(4.1) “does not create a presumption that indeterminate detention is the appropriate sentence”.
Section 753(4.1) requires the sentencing judge to engage in a thorough examination of all the evidence presented during the hearing to determine the fittest sentence: Boutilier, at para. 76. The sentencing judge must consider whether there is a “reasonable expectation” that a lesser measure – 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 risk that the offender will commit murder or further serious personal injury offences: Boutilier, at para. 77. The sentencing judge must exhaust those lesser measures before imposing an indeterminate sentence. The majority further explained that indeterminate sentences should be limited to “habitual criminals who pose a tremendous risk to public safety”: Boutilier, at para. 77.
When determining the appropriate sentence to manage the risk to public safety, the sentencing judge may consider treatability: Boutilier, at para. 45. In assessing the manageability and treatability of the offender's behaviour, the sentencing judge may consider evidence, such as: treatment avoidance, failure to respond to treatment, breaches of court orders, lack of motivation, continued involvement in high-risk conduct, serious personality disorder, and elevated likelihood of violent recidivism: R. v. Radcliffe, 2017 ONCA 176, 347 C.C.C. (3d) 3 (Ont. C.A.), at paras. 64-65, leave to appeal refused, [2017] S.C.C.A. No. 274 (S.C.C.).
Where the management of risk requires more tools than are available under the parole authorities, an indeterminate sentence is reasonable. Risk management evidence must demonstrate a prospect of effective supervision, within the means and capacity of the parole authorities: R. v. Severight, 2014 ABCA 25, 566 A.R. 344 (Alta. C.A.), at paras. 40-43, leave to appeal refused, [2014] S.C.C.A. No. 184 (S.C.C.). As this court has explained, “‘real world’ resourcing limitations cannot be ignored or minimized where to do so would endanger public safety”: R. v. Little, 2007 ONCA 548, 87 O.R. (3d) 683 (Ont. C.A.), at para. 70, leave to appeal refused, [2008] S.C.C.A. No. 39 (S.C.C.).
[197] It is important to note that in assessing whether there is a reasonable expectation that a lesser sentence will adequately protect the public, the legislation specifies that it is protection against the commission of murder or a serious personal injury offence which is at issue. In this way, the provision is targeted at habitual criminals who pose a tremendous risk to public safety: Boutilier, at para. 77.
Gladue considerations
[198] Gladue considerations apply to dangerous offender applications. While these factors will not necessarily lead to a different sentence, they will always provide a context for considering the circumstances of the offender involved in the case: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 60.
[199] As explained in Ipeelee, at para. 73, “systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness”. They are understood to be mitigating in nature because “they may have played a part in the aboriginal offender’s conduct”: Ipeelee, at para. 73. In other words, for many Indigenous offenders, “the reality is that their constrained circumstances may diminish their moral culpability”: Ipeelee, at para. 73.
[200] The manner in which Gladue principles apply to dangerous offender proceedings has been considered by a number of courts.
[201] In R. v. Radcliffe, 2017 ONCA 176, 347 C.C.C. (3d) 3, at paras. 52-59, leave to appeal refused, [2017] S.C.C.A. No. 294, Watt J.A. wrote for the court:
It is now firmly established that when sentencing an Aboriginal offender, a judge must consider:
i. the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the court; and
ii. the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage and connection.
See R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688 (S.C.C.), at para. 66; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433 (S.C.C.), at para. 59.
Systemic and background factors may bear on the culpability of the offender, to the extent they illuminate the offender's level of moral blameworthiness: Ipeelee, at para. 73. The second set of circumstances – the types of sanctions that may be appropriate – has to do with the effectiveness of the sentence itself: Ipeelee, at para. 74.
Courts are required to take judicial notice of the systemic and background factors affecting Aboriginal people in Canadian society. But, on their own, these matters about which judicial notice must be taken do not necessarily justify a different sentence for Aboriginal offenders. They provide the necessary context for understanding and evaluating the case-specific information which counsel have a duty to present, absent express informed waiver of the right to have it presented: Ipeelee, at para. 60.
Although systemic and background factors provide the necessary context to enable a judge to determine an appropriate sentence, rather than to excuse or justify the underlying conduct, it is only where the unique circumstances of an offender bear on culpability, or indicate which sentencing objective can and should be actualized, that they will influence the ultimate sentence: Ipeelee, at para. 83.
Section 718.2(e) of the Criminal Code imposes a statutory duty on a sentencing judge to consider the unique circumstances of Aboriginal offenders. Failure to apply Gladue in any case of an Aboriginal offender offends this statutory obligation and constitutes an error justifying appellate intervention: Ipeelee, at para. 87.
As a matter of general principle, characteristics that make an offender “less blameworthy” have little impact on a dangerous offender application: R. v. B. (D.V.), 2010 ONCA 291, 254 C.C.C. (3d) 221 (Ont. C.A.), leave to appeal refused, [2011] S.C.C.A. No. 207 (S.C.C.), at para. 80. Where Gladue factors serve to establish the existence and availability of alternative Aboriginal-focused means aimed at addressing the environmental, psychological or other circumstances which aggravate the risk of re-offence posed by the Aboriginal offender, a sentencing judge must make reference to them: R. v. Jennings, 2016 BCCA 127, 384 B.C.A.C. 152 (B.C. C.A.), at paras. 35, 38; R. v. Standingwater, 2013 SKCA 78, 417 Sask. R. 158 (Sask. C.A.), at para. 51.
To determine whether a lesser measure will adequately protect the public, there must be evidence before the sentencing judge that the dangerous offender can be safely released into the community. Mere hope, even a judicial assumption about the existence of community programs or other necessary resources, is inadequate to the task of addressing the reasonable expectation of protection of the public. Evidence of the existence and availability of community resources that will provide the essential level of extra-custodial supervision to adequately protect the public is necessary: R. v. Smarch, 2015 YKCA 13, 374 B.C.A.C. 291 (Y.T. C.A.), at para. 48.
Some courts have pointed out that the application of Gladue factors must be practical. Sometimes, the long-standing problems of a person declared a dangerous offender simply cannot be adequately ameliorated, the risk of re-offence reduced to an acceptable level, by Aboriginal programs or facilities alone. The failure to consider Aboriginal circumstances may be overcome by evidence regarding risk of re-offence and the absence of any reasonable possibility of eventually controlling that risk in the community: Jennings, at paras. 40-41.
[202] The Radcliffe court’s direction, at para. 57, that “[a]s a matter of general principle, characteristics that make an offender ‘less blameworthy’ have little impact on a dangerous offender application” were not discussed by the majority in Boutilier, though Radcliffe had been released a number of months beforehand. At para. 63, Boutilier directs sentencing judges that an offender’s “moral culpability” is a factor to be assessed in sentencing a dangerous offender, and, in particular, that is “relevant [amongst other factors] to deciding whether or not a lesser sentence would sufficiently protect the public”.
[203] Jurisprudence from trial courts (before and after the release of Boutilier) has also considered the effect of Gladue factors in this type of sentencing context, and I find it helpful to consider the analysis in these cases as well. In some of these cases, more explicit reference is made to the problem of the over-representation in Canadian prisons that the Gladue provisions are intended to ameliorate.
[204] For instance, in R. v. Lawson, 2015 ONSC 5315, 328 C.C.C. (3d) 395, Trotter J. (as he then was) reviewed the existing law relating to the applicability of Gladue factors in dangerous offender proceedings and confirmed that those factors “resonate strongly in this case and significantly impact on my decision”: at para. 77. At para. 76, he highlighted these comments of the Court of Appeal for Saskatchewan in another dangerous offender case:
In R. v. Badger, 2012 SKCA 119 (Sask. C.A.), the Court allowed the accused’s appeal from the imposition of an indeterminate sentence. In a discussion about least-restrictive alternatives, the Court made the following observations about Aboriginal offenders (at para. 64):
Nor should it be forgotten, when applying s. 753.1(1)(c), that the sentence reserved for long-term offenders, as opposed to that reserved for dangerous offenders, is the lesser of the two. The significance of this lies in the fact the law mandates the imposition of the least restrictive sanction that may be appropriate in the circumstances. And it does so with the accompanying instruction to pay particular attention to the circumstances of aboriginal offenders lest they be incarcerated more frequently than other offenders, or for longer periods, by reason of a failure to fully appreciate and give effect, where appropriate, to the peculiar circumstances of aboriginal offenders ... [emphasis added]
See also R. v. Moise (2015), 2015 SKCA 39, 322 C.C.C. (3d) 400 (Sask. C.A.) and R. v. Acoby, 2015 ONCA 75 (Ont. C.A.).
[205] In R. v. Durocher, 2019 NWTSC 37, Charbonneau J. held, at para. 328:
The law is clear that not all offenders whose conduct is found to be intractable and are designated dangerous offenders must be sentenced to an indeterminate sentence to achieve public protection. On the contrary, the imposition of an indeterminate sentence is a last resort. Moreover, restraint takes on particular importance when sentencing an indigenous offender.
[206] In R. v. Broadfoot, 2018 ONCJ 215, Greene J. emphasized the history of colonialism in Canada and its links to the over-representation of Indigenous people in Canadian prisons. She held, at para. 92: “To the extent that section 718.2(e) is a remedial section meant to address the over-representation of indigenous people in Canadian jails, it is incumbent on sentencing judges to ensure that all other measures be considered before imposing an indeterminate sentence”.
The role of expert witnesses
[207] Dangerous offender applications will necessarily involve evidence from an expert witness given the requirements of s. 752.1 of the Criminal Code. As in other contexts, the court is not bound by the opinion expressed by an expert witness.
[208] The role expert witnesses play in dangerous offender applications was expressly considered by the Supreme Court of Canada in R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, at p. 366. The court held that in determining the likelihood of risk of reoffence and the possibility of controlling that risk in the community, expert opinion evidence of psychiatrists is “clearly relevant to the issue whether a person is likely to behave in a certain way”. As noted by the court in R. v. R.M., [2005] O.J. No. 4977 (S.C.), at para 70, aff’d 2007 ONCA 872, 228 C.C.C. (3d) 148, leave to appeal refused, [2008] S.C.C.A. No. 91:
That is not to say that the trial judge is bound to accept the opinion of one psychiatrist or the other, but rather that the expert evidence is relevant to the judge’s inquiry, with determinations as to the weight and reliability of that evidence left to the judge: R. v. Currie, 1997 CanLII 347 (SCC), [1997] 2 S.C.R. 260. In this regard, the Supreme Court in R. v. Lyons referred with approval … to the following “common sense observations” of Ewaschuk J. in Re Moore (1984), 1984 CanLII 2132 (ON SC), 10 C.C.C. (3d) 306 (Ont.H.C.) at 310-311:
I accept the submission that the evidence of a psychiatrist, psychologist or criminologist is at times highly speculative and in certain instances a lay person is in as good a position to make a prediction as to future dangerousness. In the final say, the court, however, must be so satisfied and not the expert witnesses. That is not to say that the experts may not assist the court, especially as to whether the offender currently suffers from a psychological disorder, e.g. psychopathy, which may be relevant to the likelihood of future dangerous conduct.
[209] As with all evidence, the court may accept all, some, or none of an expert witness’s testimony. Similarly, as in all cases, it is important to assess an expert witness’s evidence in context. An expert opinion may be rejected where it is unpersuasive, or unsupported by the evidence. Ultimately, in this type of sentencing hearing, the sentencing judge is obliged to reach her own conclusion about an offender’s risk based on the totality of the evidence: R. v. F.E.D., [2009] O.J. No. 819 (S.C.), at para. 89, aff’d 2012 ONCA 800; R. v. J.F.H., [2002] O.J. No. 362 (S.C.), at paras. 193-194, aff’d [2006] O.J. No. 383 (C.A.); R. v. Hickey, 2008 ONCA 115, at para. 4; R. v. Allen, 2007 ONCA 421, 86 O.R. (3d) 376, at para. 30; and R. v. R.M., [2005] O.J. No. 4977 (S.C.), at para. 121, aff’d 2007 ONCA 872, 228 C.C.C. (3d) 148, at paras. 41 and 53, leave to appeal refused, [2008] S.C.C.A. No. 91.
The meaning of “reasonable expectation”
[210] Pursuant to s. 753(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 … that there is a reasonable expectation that a lesser measure” will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.
[211] A number of courts have held that a “reasonable expectation” (s. 753(4.1)) is a more exacting standard than a “reasonable possibility of eventual control”, which had been the test under the pre-amendment legislation (s. 753.1(1)(c)): Lawson, at paras. 78-79; R. v. L. (M.), 2015 ONCA 487, 336 O.A.C. 168, at para. 23; and R. v. Osborne, 2014 MBCA 73, 306 Man. R. (2d) 276, at paras. 72-74.
[212] In R. v. Bragg, 2015 BCCA 498, 332 C.C.C. (3d) 145, at para. 29, the court held that “the amendments impose a higher standard than previously in that an ‘expectation’ is a belief that something will happen, as opposed to the mere ‘possibility’ that it happen”.
[213] In D.B., at para. 193, Hill J. noted that the Court of Appeal for Ontario had “found it unnecessary to express a settled view on the subject”. However, Hill J. described the standard as requiring “evidence-based evaluation, based upon objectively valid and relevant criteria, with probabilistic assessment exceeding chance, speculation, hope or mere possibility that something will happen”: D.B., at para. 194 (emphasis added). Given the priority of public safety to the regime, he was “prepared to look to satisfaction on a balance of probabilities” in deciding the “expectation issue”: D.B., at para. 194.
[214] Indeed, prior to the amendments, a long line of jurisprudence had established that more than hope was required to find that an offender’s risk will be sufficiently reduced so that he might be safely released into the community: R. v. McCallum (2005), 2005 CanLII 8674 (ON CA), 201 C.C.C. (3d) 541 (Ont. C.A.), at para. 47, leave to appeal refused, [2006] S.C.C.A. No. 145; R. v. Little, 2007 ONCA 548, 87 O.R. (3d) 683, at para. 42, leave to appeal refused, [2008] S.C.C.A. No. 39; R. v. Higginbottom (2001), 2001 CanLII 3989 (ON CA), 156 C.C.C. (3d) 178 (Ont. C.A.), at para. 26; R. v. Poutsoungas (1989), 1989 CanLII 7104 (ON CA), 49 C.C.C. (3d) 388 (Ont. C.A.), at p. 391, leave to appeal refused, [1992] S.C.C.A. No. 5; R. v. Goforth, 2007 SKCA 144, 302 Sask. R. 265, at para. 54; and R. v. Sawyer, 2015 ONCA 602, 127 O.R. (3d) 686, at para. 37.
[215] In Radcliffe, the Court of Appeal for Ontario again directed against relying on hope in meeting the “reasonable expectation” standard. At para. 58, it described the evidence required in this way:
To determine whether a lesser measure will adequately protect the public, there must be evidence before the sentencing judge that the dangerous offender can be safely released into the community. Mere hope, even a judicial assumption about the existence of community programs or other necessary resources, is inadequate to the task of addressing the reasonable expectation of protection of the public. Evidence of the existence and availability of community resources that will provide the essential level of extra-custodial supervision to adequately protect the public is necessary: R. v. Smarch, 2015 YKCA 13, 374 B.C.A.C. 291, at para. 48.
Assessing whether there is a “reasonable expectation” that a lesser measure will protect the public
[216] In D.B., a case decided under the current legislation, Hill J. identified a number of factors in the jurisprudence relating to the “balancing exercise to determine whether public protection can realistically be achieved by a disposition less severe than indeterminate, [sic] imprisonment”: at para. 198. This list of factors has been considered by other judges in structuring the analysis of this issue: see e.g., R. v. R.S., 2016 ONSC 7767, at paras. 86-99, aff’d 2020 ONCA 765, at para. 41; R. v. Bourdon, 2018 ONSC 3431, at para. 686; R. v. Jarrar, 2020 ONSC 4424, at paras. 103-116; and R. v. R.K., 2016 ONSC 3654, at paras. 168-192. I consider the factors in this case. The list of D.B. factors, set out with further discussion at para. 199, while not exhaustive, include:
the degree to which the offender has been cooperative with the Part XXIV process;
whether the offender has previously refused treatment or failed to take advantage of treatment opportunities;
whether the offender has been expelled from prior treatment programs;
whether the offender has previously refused to take prescribed medication or has unilaterally discontinued pharmacological treatment;
whether the offender has taken treatment in the past and if so whether it ultimately failed to reduce or control the offender’s risk to the public;
is the offender motivated and committed to treatment?
are there realistic prospects for treating the offender’s mental disorder(s) having regard to relevant factors such as propensity and intractability?
respecting the predicate offences, is there a lack of insight, failure to accept responsibility, denial and minimization, a lack of empathy for the victim(s), absence of remorse?
the circumstances of the offender’s institutional behaviour including in advance of the dangerous offender hearing;
what improvements or gains in risk reduction can be expected during a period of custody preceding community release?
has past engagement with community supervision been compliant?
apart from treatment considerations, are there sufficiently available and resourced external controls in the community to adequately protect the public?
as a factor independent of treatment, is there compelling, not speculative, expert evidence that the offender’s proclivities will significantly decline in the future while falling within the period of a determinate sentence and the term of a LTSO?
[217] In assessing these factors, it is also important to note, as did Karakatsanis J. (as she then was) in R. v. Tremblay, [2010] O.J. No. 3450 (S.C.J.) at para. 154, that the management of risk sufficient to reduce an offender’s risk to an acceptable level may be multi-dimensional. She wrote:
The determination of whether an offender’s risk can be reduced to an “acceptable” level requires consideration of all factors, including whether the offender can be treated, that can bring about sufficient risk reduction to ensure protection of the public. This does not require a showing that an offender will be “cured” through treatment or that his or her rehabilitation may be assured. What it does require, however, is proof that the nature and severity of an offender’s identified risk can be sufficiently contained in the community, a non-custodial setting, so as to protect the public: R. v. G.L. (2007), 2007 ONCA 548, 225 C.C.C. (3d) 20, at para. 42 (Ont. C.A.).
Application of the principles
[218] Prior to applying the above principles to the facts in this case, I confirm that I accept the evidence of Dr. Klassen generally. In doing so, I consider that Dr. Klassen is extremely experienced in forensic risk assessment and in these types of applications. His approach to the assessment of Mr. Hall demonstrates insight into the issues that may present with an Indigenous offender, including the reliability of actuarial tools when applied to Indigenous persons. On the evidence before me, his choice of actuarial tools in this case has been sensitive to the issues identified in Ewert and is well-supported. Further, Dr. Klassen’s report and evidence fully and accurately consider Mr. Hall’s history. He was a measured and dispassionate witness. He offered clear opinions and sound reasons for them.
[219] The totality of the evidence adduced during the hearing, including the evidence of Dr. Klassen, satisfies me that there is a reasonable expectation that a lesser measure than an indeterminate sentence will adequately protect the public against the commission by Mr. Hall of murder or a serious personal injury offence.
[220] I reach this conclusion based on the following factors and findings.
While Mr. Hall’s antisocial personality disorder is a chronic condition, the evidence of Dr. Klassen is that “the expression of the condition depends on conditions around the person”, something which has been seen in Mr. Hall’s case. I also consider that the expression of this disorder may be attenuated by treatment focused on skill development relating, amongst other things, to anger management. Similarly, while Mr. Hall’s substance use disorder contributes to the risk that he presents to the public currently, this disorder may be modified and controlled by treatment. In other words, with both of these disorders, treatment may modify their expression such that Mr. Hall’s risk to the public is diminished.
Mr. Hall has expressed a willingness to take treatment and counselling that would assist him in managing both of his disorders. In considering this evidence, I have also considered that Mr. Hall has shown himself to be capable of manipulation (for instance, in obtaining medications while in custody) and deceit. While I am alive to the possibility that Mr. Hall is saying he will accept treatment because he is now facing a dangerous offender application, I find that this factor is nevertheless entitled to weight in the analysis. I arrive at that conclusion having regard to Mr. Hall’s cooperation with the dangerous offender assessment and his conduct while in custody at OCDC, where he has demonstrated a commitment to psychiatric and psychological counselling and skills development. Mr. Hall may have many motivations for this behaviour, including diminishing his legal jeopardy, but it is nevertheless a positive indicator in terms of the likely success of the intensive treatment he will receive while in federal custody. His motivation to pursue treatment may also be reinforced while on an LTSO since failure to abide by a condition of his LTSO, including one requiring treatment, may result in suspension and apprehension.
I find that the evidence supports a finding that Mr. Hall has benefited in the past from treatment. I am referring here to the residential treatment he received at Partridge House. Mr. Hall succeeded in maintaining his sobriety for 18 months following that intervention. This evidence shows that Mr. Hall is capable of benefitting from a treatment programme.
The evidence before me is that the intensive treatment required to mitigate Mr. Hall’s risk is available during a federal sentence. In addition to the skills-based treatment required to reduce his risk, CSC offers treatment and other programming with a culturally focused component, both in custody and in the community under the terms of an LTSO. I accept Dr. Klassen’s conclusions about the types of evidence-based and skills-focused treatment that may benefit Mr. Hall insofar as risk management is concerned. I am satisfied on the evidence from the CSC and NPB officials that such treatment will be at the core of what is offered to Mr. Hall.
I have considered the extent to which Mr. Hall has insight into his offending behaviour. The evidence on this point is mixed. On the one hand, Mr. Hall has minimized his responsibility for his conduct, both as regards the predicate offences and with respect to other offences. On the other hand, he has also expressed remorse for the harm he caused to the victim of the predicate offences. He has also entered a guilty plea to the predicate offences. In any case, the evidence of Dr. Klassen was that “even if he denied everything he ever did, this doesn’t make it a big risk factor”, because risk derives from a careful, structured look at a number of individual contributors to risk.
Mr. Hall has never had the type of intensive treatment and support that will be available to him through a federal sentence and with the imposition of LTSO conditions. As noted by Trotter J. (as he then was) in Lawson, at para. 83, this factor
must be approached with caution…. It is not a reason in and of itself to prefer an LTSO to an indeterminate sentence: see R. v. S.(S), 2008 ONCA 578, 2008 O.J. No. 3072 (Ont. C.A.), at para. 93. However, [the offender] stands in a better position than someone who has received treatment and who has failed. As already noted, his ASPD presents certain challenges. However, other factors point to his amenability to treatment at this point in his life, especially in light of his present legal jeopardy.
- Addressing Mr. Hall’s substance abuse is key to the treatment and management plans. In that regard, I accept the evidence of Dr. Klassen who noted that Mr. Hall’s “good behavioural control” while in custody supports the conclusion that Mr. Hall is more reactive when intoxicated. As I have said, I accept that treatment for his substance use disorder is available and that it may modify Mr. Hall’s risk for violent reoffending. Given the intractability of substance abuse issues, and Mr. Hall’s history, I am not confident that treatment alone is sufficient to ameliorate his risk to an acceptable level.
However, treatment is not the only option for managing Mr. Hall’s risk. I find that the supervision options for managing this risk factor for Mr. Hall, particularly after he has had the benefit of intensive treatment, are sufficient to reduce Mr. Hall’s risk to the point where that risk may be controlled in the community. The terms and conditions of an LTSO may require him to live at a CSC run correctional centre, where parole officers are on staff and which offer far more intensive community supervision than Mr. Hall has ever experienced on probation. Drug and alcohol screening may be used to monitor Mr. Hall, such that the authorities will not have to rely on Mr. Hall’s self-reporting to properly supervise him. I find that these conditions will provide highly effective means of monitoring Mr. Hall for ongoing substance use. The swift sanctions available for failing to comply with conditions further address this management issue: see e.g., Lawson, at para. 83.
- Mr. Hall’s behaviour while in custody is also a positive indicator generally because it shows that he can control his behaviour. Even while awaiting a disposition on a dangerous offender application, many offenders cannot or will not exercise control over their behaviour while in custody. Mr. Hall’s history while in custody shows he can exercise self control. I note in particular the evidence suggesting that at least since the advent of this application, Mr. Hall has been a “model inmate” who is viewed as a positive influence on others. His conduct during other lengthy periods of imprisonment (e.g., between 2015 and 2017) has also been relatively good. Mr. Hall’s motivation and ability to control his behaviour has thus been demonstrated prior to the Crown bringing this application.
In any event, while I recognize that Mr. Hall may have been motivated to behave as a model inmate recently because he is facing this application, this response to his legal jeopardy is still relevant to my analysis. Whether it is a choice that is motivated by a single-minded desire to manipulate the outcome of this proceeding or a rational and sincere decision in the face of his legal jeopardy, the evidence of Mr. Hall’s conduct in custody contributes to my finding that Mr. Hall is motivated to and can control his behaviour: see e.g., R. v. Anderson, 2018 BCSC 2528, at paras. 66-67. I note that in Spilman, the Court of Appeal for Ontario upheld the sentencing judge who had “considered that the appellant’s conduct in pre-disposition custody supported the conclusion that he was capable of controlling his violent impulses and nature, if motivated to do so”: at para. 14.
- I have considered the caselaw which has addressed the issue of an offender’s ageing and the prospects his offending will “burn-out”: see e.g., Poutsoungas; Higginbottom; R. v. R.R., 2020 ONSC 1080; R. v. J.M., 2011 SKPC 109, 379 Sask. R. 211; and R. v. Farouk, 2015 ONSC 4257. I am also mindful that Dr. Klassen’s evidence about the need to have Mr. Hall “make his way safely to 60” is given with the caution that he cannot say whether Mr. Hall will or will not be in the group of offenders who follow the pattern observed in the literature. At the same time, Dr. Klassen’s view, which I accept, was that there is some evidence in Mr. Hall’s case to suggest he fits the statistical pattern, at least insofar as the frequency of his offending is concerned.
Nevertheless, Mr. Hall’s most serious offences have occurred while he was in his 40s. Dr. Klassen is unable to explain the severity of this offending by Mr. Hall. Even so, as I understand Dr. Klassen’s evidence, this pattern in Mr. Hall’s case does not place him outside the statistical pattern in the literature that sees persons who share his characteristics significantly diminishing at least the frequency of their offending in their 50s and 60s.
I note, too, that a number of courts have accepted aging as a factor that reduces an offender’s risk for violent re-offence, where, as in this case, other evidence suggests the offender can be managed in the community within the period of time available with a composite sentence. For instance, in D.B., at para 229, Hill J. considered “the relevance of the offender’s advancing age to reoffending risk, considering the duration of lengthy incarceration and a lengthy LTSO.” Similarly, in Anderson, at para. 60, after noting that some issues with substance abuse had been addressed by the offender, the court held: “Other risk reduction factors include aging, the impact of court proceedings, treatment, and a new-found interest in his aboriginal heritage. These factors cannot be viewed individually or alone, with rose coloured glasses, but, taken together, they establish a significant risk reduction which is more than an expression of hope.”
In Tremblay, Karkastsanis J. also relied on age as a factor which attenuated the offender’s risk (see paras. 169-175). As in Tremblay, I find that Dr. Klassen has given evidence which makes ageing a relevant factor in assessing the risk posed by Mr. Hall. First, Dr. Klassen gave evidence which suggested that so far, Mr. Hall does fit within the statistical pattern of the literature which sees reduced frequency of violent offending in offenders with ASPD as they age. But his evidence went beyond that. It was clear as Dr. Klassen testified that he viewed the issue of age as a salient factor that was relevant to the assessment of risk posed by Mr. Hall given his personality traits, and particularly his diagnosis of ASPD, since violence by similar persons tends to remit with age. For instance, in his report, he said about Mr. Hall: “He’s reaching an age where risk for aggressive behaviour will show significant age-related decline”. Dr. Klassen also linked his opinion that there could be psychiatric support for a determinate sentence followed by a LTSO in part to the time such a sentence would provide for Mr. Hall to age. Further, when he testified that it was possible that the actuarial tools had overestimated Mr. Hall’s risk because of the circumstances in which he had lived, and that some of Mr. Hall’s risk might derive from context, Dr. Klassen stated that “the other important factor we need to talk about with Mr. Hall” is his age. In these circumstances, I share the following reasoning of Karakatsanis J. at para. 174 of Tremblay:
In this case, the experts related the evidence about the impact of age specifically to Mr. Tremblay based upon his diagnosis and history. In my view the evidence with respect to age is not merely speculative or statistical; nor is it the sole basis for my decision that Mr. Tremblay’s risk will be reduced over the period of the long term supervision sufficient to protect the public. See R. v. Poutsoungas, above, R. v. Higginbottom, above, at paras. 24-27.
In this instance, the custodial sentence will see Mr. Hall incarcerated or on parole (should the NPB be satisfied that parole is appropriate) until he is just shy of 60 years old. Thereafter the conditions of an LTSO will be in place until he is 67 years old. This is in excess of the time that offenders who share Mr. Hall’s characteristics typically present a risk of violent offending. While I consider that the likelihood of age-related decline in violent offending by Mr. Hall is a factor to be considered, it would be unsafe to rely on that factor alone. Given the totality of the evidence and the significant risk Mr. Hall currently presents to the public, I find that a substantial fixed sentence and a lengthy LTSO order are required to satisfy me that Mr. Hall’s risk to the public is adequately addressed.
[221] Ultimately, I am satisfied that it is more likely than not that intensive treatment and community supervision and monitoring over the next 16 years will serve to materially reduce the future risk Mr. Hall would pose to the community and that the public will be adequately protected from the risk that he would commit murder or another serious personal injury offence.
[222] I pause to say that in arriving at this conclusion, I have considered Mr. Hall’s long history of breaching court orders, including by failing to report as required, which has had the effect of thwarting efforts to treat and supervise him. He is currently awaiting sentence after pleading guilty to violating the probation orders imposed upon him following his last aggravated assault convictions. I have also considered the evidence before me which indicates that Mr. Hall has evaded supervision in the past by returning to the United States.
[223] However, the evidence about the measures available to CSC and the NPB in setting conditions for an LTSO and the means available to supervise them satisfies me that conditions are available which will permit the authorities to supervise Mr. Hall with far better tools than those available to probation officers.
[224] For instance, until such time as Mr. Hall has demonstrated insight into and control of his risk-enhancing behaviour, he may be required to live in a community correctional centre. These centres are located in only a few communities in Ontario and all are at some distance from the Cornwall area. In these circumstances, the prospects of flight by Mr. Hall via Akwesasne to the United States are remote. Should he breach any of his conditions, as has been noted by other courts, the consequences will be swift and may be severe, since a breach of an LTSO may be prosecuted as a criminal offence and result in an additional sentence. All of these measures may serve to incentivize Mr. Hall to make the changes he needs to to ensure that he need never return to custody. If he does not, I am satisfied that the supervisory methods available to control him will adequately protect the public from the risk he will commit murder or a serious personal injury offence.
[225] I have also arrived at this conclusion mindful that Mr. Hall has offended against domestic partners and may be at risk of doing so again. On the evidence available to me, Mr. Hall has not been convicted of a serious personal injury offence relating to a domestic partner. However, the evidence from Dr. Klassen is that the frequency of Mr. Hall’s offending may become live if he again cohabits in an intimate relationship since once aggressive behaviour occurs in an intimate relationship it tends to be serial. In these circumstances, it makes good sense to me that a condition would be imposed as part of his LTSO requiring Mr. Hall to report his relationships to his parole officer. In any case, the evidence before me satisfies me that this risk may be adequately managed by the NPB and CSC such that future partners to Mr. Hall are protected.
[226] I have also considered that the success of a fixed sentence followed by a lengthy LTSO is a plan that involves certain contingencies, chiefly Mr. Hall’s motivation to follow through with treatment. I also recognize that Mr. Hall’s high PCL-R score is associated with waning motivation. Nevertheless, as was noted by Trotter J. (as he then was) in Lawson, at para. 83, the possibility of an offender’s waning motivation is “always present in this type of case”. To the extent that Mr. Hall’s motivation for treatment may wane, I find that other aspects of the sentence will adequately control the risk he presents. The conditions and supervision available with an LTSO will further ensure that Mr. Hall’s environment may be strictly controlled at a point when he will have reached an age associated with significantly reduced violent offending. This will further diminish the impact of Mr. Hall’s current risk factors to an acceptable level.
[227] Finally, in keeping with the direction in Boutilier, at para. 63, that an offender’s “moral culpability” is a factor to be assessed in sentencing a dangerous offender, and in particular, is “relevant [amongst other factors] to deciding whether or not a lesser sentence would sufficiently protect the public”, I have considered Mr. Hall’s history as an Indigenous person. His experiences as a child and his subsequent difficulties can be directly traced to the intergenerational impacts of Canada’s history of colonialism. He was raised by an abusive father and a mother who experienced the trauma of a residential school and dislocation from her cultural community. She appears to have been ill-equipped to protect or nurture him. The difficulties arising from these circumstances appear to have contributed to the development of Mr. Hall’s psychiatric disorders. They have also led to a history of criminality which saw him serving lengthy periods of custody even as a teenager. Further, for a substantial part of his life, Mr. Hall was disconnected from his family and culture. I find that the Gladue considerations in this case strongly favour the conclusion that Mr. Hall’s moral blameworthiness for his current offences is diminished by his circumstances as an Indigenous person.
[228] To be clear, this finding does not displace my consideration (independent of the Gladue factors) of the risk that Mr. Hall presents to the public and whether the evidence shows that this risk may be mitigated to an acceptable level. However, the Gladue considerations, and my duty as a judge to be alive to the problem of the over-representation of Indigenous persons in Canada’s jails, further support my conclusion that an indeterminate sentence is not required in this case.
The appropriate determinate sentence
[229] With respect to the appropriate determinate sentence, in arriving at the term of 8 years in addition to presentence custody, to be followed by an LTSO for 8 years, I have considered the guidance provided in the case law, including Spilman.
The legal principles
[230] Spilman, at para. 42, emphasizes the direction from Boutilier, at para. 55, that “[r]ather than comparing the sentence imposed to the ‘appropriate’ sentence outside the dangerous offender context, the relevant question should be whether the hearing judge has reasonably ‘assess[ed] the relative importance of the sentencing objectives in [a] particular case.’”
[231] Spilman also provides the further directives, at paras. 32 and 38-39:
[I]n determining the length of the fixed-term custodial component of a composite sentence under s. 753(4)(b), the hearing judge is not restricted to imposing a term of imprisonment that would be appropriate on conviction of the predicate offence but in the absence of a dangerous offender designation. The hearing judge must take into account the statutory limits of the offence for which sentence is being imposed, the paramount purpose of public protection under Part XXIV, and other applicable sentencing principles under ss. 718-718.2. This analysis may justify fixed term sentences lengthier than those appropriate outside the dangerous offender context. I reach this conclusion for six reasons.
… To interpret the provisions of s. 753(4)(b) in this way, that is to say, by imposition of a custodial term within the sentencing options available for the predicate offence but beyond the range appropriate in the absence of a dangerous offender designation, permits the hearing judge to impose the least intrusive sentence required to achieve the primary purpose of Part XXIV, yet reserves indeterminate sentences for those for whom no other measure will adequately protect the public: Boutilier, at para. 60.
… I am satisfied that a hearing judge is entitled to take into account access to rehabilitative programming in a penitentiary in deciding upon the length of the custodial component of a composite sentence under s. 753(4)(b).
[232] The constraints on the length of a fixed-term sentence are set out in Spilman as follows, at paras. 51-54:
For these reasons, I am satisfied that when imposing a sentence under ss. 753(4)(b) or (c), a hearing judge may impose a fixed-term sentence that exceeds the appropriate range in the non-dangerous offender context, to ensure the offender has access to treatment programs in a penitentiary. The length of the sentence imposed, however, should be subject to three constraints.
First, the punishment provisions for the predicate offence. Any custodial sentence imposed as a component of a composite sentence under ss. 753(4)(b) or as a standalone disposition under s. 753(4)(c), cannot exceed the maximum term of imprisonment for the predicate offence.
Second, the sentencing objectives, principles and factors in ss. 718-718.2. While factors such as the degree of responsibility of the offender and the gravity of the offence play a lesser role in determining a sentence under Part XXIV, these considerations cannot be entirely ignored. Even where their significance is attenuated, they prevent the imposition of lengthy fixed-term sentences that are entirely disconnected from the circumstances of the offence giving rise to the sentencing proceedings.
Third, the length of sentence imposed must be responsive to evidence adduced at the hearing. The evidence about treatment programs should be specific, preferably indicating an approximate length or range of time within which the offender may be expected to complete the programming said to be necessary to protect the public. There must be a clear nexus between that programming and future public safety, sufficient to support a “reasonable expectation” that the overall sentence will “adequately protect the public against the commission by the offender of murder or a serious personal injury offence”: s. 753(4.1). And the evidence must account for the offender’s “amenability to treatment and the prospects for the success of treatment in reducing or containing the offender’s risk of reoffending”: R. v. Little, 2007 ONCA 548, 225 C.C.C. (3d) 20, at para. 40. [Emphasis added.]
Presentence custody and dangerous offender applications
[233] Spilman also confirms that a reduced rate of credit for presentence custody may be appropriate in sentencing a dangerous offender in order to achieve the objective of protecting the public: at para. 44, citing R. v. Cote, 2015 SKCA 52, 457 Sask. R. 237, at paras. 78-81; R. v. D.(E.E.), 2007 SKCA 99, 304 Sask. R. 192, at para. 74.
The principles applied
[234] In determining the appropriate determinate sentence in this case, I have considered the principles in ss. 718 to 718.2 of the Criminal Code: Boutilier, at para. 53. I have also considered the principles of proportionality and the operation of ss. 718.2(d) and (e), which are also important at this stage of the analysis: Lawson, at para. 85. And I have considered that the protection of the public remains the paramount purpose of this sentencing proceeding, and the need for the sentence to reflect the principles of denunciation and deterrence: Spilman, at para. 32.
[235] Giving effect to the principle of deterrence in this case includes consideration of specific deterrence, particularly since this proceeding includes Mr. Hall’s third conviction for aggravated assault within a span of five years. The gravity of the predicate offences and their impact on the victim are also relevant considerations which I have considered.
[236] To be clear, in sentencing Mr. Hall, I have considered that he committed a vicious assault in the context of a planned home invasion offence while he was on two probation orders relating to two recent convictions for aggravated assault. He used a weapon and choked his victim to the point of unconsciousness. I expect the offences will have a life-long psychological impact upon Mr. Champagne. The public must be protected from conduct like this by Mr. Hall in the future.
[237] On the mitigating side, I have considered Mr. Hall’s diminished moral blameworthiness for the offences given the impact of the Gladue factors I have already referenced. I have also considered that he pleaded guilty to the predicate offences.
[238] In fixing an additional 8 years as the custodial sentence and 8 years as the duration of the LTSO, I have also considered the evidence adduced on the hearing about the difficulties Mr. Hall may have in responding to treatment, as well as the evidence about when his risk of violent offending might be expected to be reduced as a function of his age. The custodial sentence of 8 additional years will bring Mr. Hall to the age of roughly 59.5 years. The LTSO will continue until Mr. Hall is 67. The custodial portion of the sentence will provide Mr. Hall with time to take the treatment offered to him and demonstrate that he can apply any lessons he has learned to reduce his risk. Parole will be available to him if he makes sufficient progress. If Mr. Hall does not take advantage of the opportunities for treatment, he can expect to be imprisoned until warrant expiry, and to have restrictive conditions imposed for the term of his LTSO.
[239] While I have considered the imposition of longer terms for both the custodial portion of the sentence and the LTSO, in my view, neither is required to reduce Mr. Hall’s risk to the public to an acceptable level. Further, longer terms for either portion of the sentence would not give effect to the principles of proportionality and restraint in this case given the compelling Gladue factors present. I have already explained that in my view, a lesser sentence will not adequately protect the public.
[240] I decline to award enhanced credit to Mr. Hall for his presentence custody of 769 days. The need to protect the public militates against doing so, since awarding enhanced credit would reduce the period of time for which Mr. Hall will be subject to outside controls. With the time served credited at a rate of 1 for 1, the custodial sentence is just over 10 years.
Sentencing for individual offences and ancillary Orders
[241] The sentence for the individual counts to which Mr. Hall has pleaded guilty shall be as follows:
Count 4 (s. 268): 8 years + PSC of 769 days to be followed by a LTSO for 8 years;
Count 5 (s. 246(a)): 8 years concurrent to be followed by a LTSO for 8 years;
Count 2 (s. 348(1)(b): 5 years concurrent;
Count 6 (s. 733.1(1): 1 year concurrent.
[242] In addition to the custodial portion of the sentence and the LTSO, I make the following orders:
a. Pursuant to s. 760 of the Criminal Code, the materials referenced in that section, including the psychiatric report of Dr. Klassen, the PSR and Gladue reports prepared for this application, and these Reasons for Sentence will be forwarded to CSC;
b. A DNA order;
c. An order pursuant to s. 743.21 of the Criminal Code that Mr. Hall shall have no communication with the victim of the offences, Christian Champagne.
d. An order under s. 109 of the Criminal Code for life.
Conclusion
[243] For the reasons I have given, I am not satisfied that the evidence establishes that the protection of the public requires that Mr. Hall should be subject to external controls for the rest of his life, as would be the case with an indeterminate sentence. Nor am I satisfied that a fixed term sentence, as suggested by the defence, will adequately protect the public from the risk that Mr. Hall will commit murder or a serious personal injury offence.
[244] Mr. Hall is sentenced to an additional period of imprisonment of 8 years, followed by an LTSO for 8 years, the terms of which will be set by the NPB. On the totality of the evidence, I am satisfied that this is the least intrusive of the options to adequately protect the public against Mr. Hall’s future commission of murder or a serious personal injury offence.
[245] Before concluding my reasons, I address the request from the defence that I emphasize in my decision the importance of “the three things [Mr. Hall] needs: treatment for anger and substance abuse, and Indigenous healing”. The evidence of the CSC and NPB officials in this case confirms that this will be a focus of the approach taken with Mr. Hall throughout his sentence. I am fully satisfied that the sentence I impose will address those issues for Mr. Hall.
[246] As for the importance of treatment with a cultural component such as that offered at Waseskun, it makes sense to me that if Mr. Hall has access to treatment that incorporates Indigenous culture and values, this is for the good insofar as it may assist him with certain personal issues and in reintegrating into the community. In the event Mr. Hall makes sufficient progress with his skills-based treatment for anger management and substance abuse and reduces his risk of reoffending, he may apply to and be accepted at Waseskun. If Mr. Hall does not make progress during the custodial part of his sentence, he can expect that this opportunity will not be available to him, even while serving the LTSO, because he will be ordered by the NPB to reside at a community correctional centre.
[247] I also make some comments about the conditions recommended by Dr. Klassen, even though the conditions of the LTSO will be set by the NPB at the time Mr. Hall’s LTSO commences and will include consideration of Mr. Hall’s progress while in custody. To the extent that it is helpful to do so at this point, I confirm that I find Dr. Klassen’s recommendations to be appropriate and well-supported by the evidence. If that continues to be the case upon Mr. Hall’s release on the terms of an LTSO, I have every confidence that such conditions can and will be imposed by the NPB and monitored by CSC.
[248] In concluding, I thank counsel for their work on this case. I thank them, too, for their co-operation in ensuring that this case might be concluded virtually given the circumstances created by the pandemic.
Justice L. Lacelle
Released: January 18, 2021
COURT FILE NO.: 19-41
DATE: 20210118
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Edward Hall
amended REASONS FOR sentence
The Honourable Justice Laurie Lacelle
Released: January 18, 2021