COURT FILE NO.: CR-17-1-0000-654
DATE: 20210910
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
SHANE MACLEAN
Respondent
Lisa Fineberg, for the Crown
Brian Kolman, for the Respondent
HEARD: July 31, October 4, November 9 and 16, 2018, January 11, March 29, June 27, July 25, 26, October 24 and 25, 2019, February 20, March 27, and December 17, 2020, January 18, February 3, 17, March 3, 15, 16, May 17, and June 17, 2021
ruling on dangerous offender application
B.P. O’Marra J.
overview
[1] On July 31, 2018, Shane MacLean pleaded guilty to three counts: aggravated assault, assault with a weapon and breach of probation. The offence date on all counts was September 20, 2016. He was arrested that day and has been detained in custody since then.
[2] The incident that led to these charges involved the foot pursuit and stabbing of the victim in the Toronto Eaton Centre. The victim survived after sustaining multiple stab wounds. This could easily have been a homicide. Mr. MacLean was on probation at the time with a term that he not possess any weapons. He has a lengthy criminal record that is replete with violent offences.
[3] Mr. MacLean has been very well represented by counsel throughout. He was aware before he entered the guilty pleas that the Crown would seek a dangerous offender designation with an indeterminate sentence. The Crown has been thorough and fair. The defence’s position is that Mr. MacLean should not be designated as a dangerous offender, but rather a long-term offender with a determinate sentence of not more than ten years and a long-term supervision order (LTSO) in the range of five to seven years.
[4] As is often the case on such applications, the obtaining of the necessary authorizations, appointment of a forensic examiner, the gathering and presentation of evidence and the submissions of counsel extended over a long period of time. At no time was the process in this case unnecessarily delayed by either counsel, the witnesses or the court.
[5] Dr. Alina Iosif, forensic psychiatrist, was appointed as the examiner to interview Shane MacLean, review all relevant materials and prepare a report. She was qualified in consent to provide opinion evidence as an expert relating to the identification and potential treatment of high-risk offenders. She testified on two occasions based on an initial report dated December 21, 2018 and an addendum dated March 5, 2019. She prepared two further reports dated February 18 and 25, 2021. The latter two reports were made and presented based on the joint recommendation of counsel. Counsel for Mr. MacLean had requested that Dr. Iosif review and comment on further information filed on his behalf.
[6] Further extensive materials were presented by Crown and defence. Viva voce evidence proceeded over several days on an intermittent basis. Mr. MacLean chose not to testify but read a statement to the court after the final submissions of counsel on May 17, 2021.
[7] I reserved my ruling but counsel agreed that it would be appropriate for me to provide a decision on June 17, 2021 with my complete reasons to be released on a later date.
[8] On June 17, 202,1 I delivered my ruling with brief reasons. I ruled that Shane MacLean would not be designated a dangerous offender but would be found to be a long-term offender. I imposed a determinate sentence along with ancillary orders and a ten year LTSO.
[9] These are my reasons.
THE INDEX OFFENCES
[10] On Tuesday, September 20, 2016, at around 2:15 p.m., the male victim was inside the Eaton Centre in downtown Toronto. He was standing on the escalator, going from the main floor to the lower level. Video surveillance then showed an unidentified male pursuing the victim and alerting Mr. MacLean that the victim was up ahead. The victim started to run. The unidentified male and Mr. MacLean grabbed a yellow “slippery when wet” caution sign and threw it at the victim, causing him to fall to the ground. The victim tried to defend himself but was overpowered by the two men. They continued to hit him with the yellow caution sign. Mr. MacLean threw the victim to the ground and got on top of him. He appeared to be holding something in his hand. The victim continued to try to defend himself. While this was happening, a staff member from the mall attempted to intervene. The unidentified male hit her and threw her out of the way. He then ran away and left the Eaton Centre by bicycle. Meanwhile, Mr. MacLean remained on top of the victim. A mall security guard tried to intervene. Mr. MacLean then stabbed the victim a number of times as he continued to lie on the floor. The security guard grabbed Mr. MacLean, who made an aggressive gesture toward him and then started to run away from the scene. He took off his shirt as he walked up the escalator. The security guard continued to follow him. He was arrested roughly ten minutes later outside the Eaton Center. A serrated steak knife with a six-inch blade was located in his front pocket. At the time of this offence, he was bound by two separate probation orders.
[11] The victim tried to get up but collapsed inside the mall. He was rushed to the hospital by ambulance and was admitted for emergency surgery. He underwent an exploratory laparotomy for repair of injuries to the small bowel. A midline incision was made which carried down just below the level of the umbilicus. He required staples as well as stiches to close the incision.
Mr. MacLean’s Account to Dr. Iosif
[12] Mr. MacLean recalled that he was released from a previous incarceration in late August or early September 2016. He stayed with his mother for a few days. One day, while walking to a probation appointment on a sudden impulse, he got on a bus and returned to the downtown area. He indicated that for almost a month afterward he was “using crack every day and every night”. To support his habit, he was stealing alcohol on a daily basis from the LCBO “because it’s so easy, 90% of the time they don’t stop you, they check the cameras and there is a warrant put out but they don’t catch you”. He had also been involved in a break and enter at a nightclub the night before the index offence and making off with large quantities of expensive alcohol. At approximately 6:55 a.m. on September 19, Mr. MacLean and two co-accused attended Addison Night Club. They broke the lock on a shed and fled the scene with bottles of alcohol valued at $7000.00-$10,000.00.
[13] Mr. MacLean indicated that on the afternoon of September 20, less than an hour before the index offences, a crack dealer he had an acquaintance with offered him 1 gram of crack ($100.00 worth) to stab the victim because the victim had “ripped him off of $100.00 the night before”. Mr. MacLean stated that the victim was also a crack dealer. Mr. MacLean indicated that he did not want to stab the victim but decided to do it nevertheless because the other man offered him crack. He denied that he had any kind of conflict or argument with the victim before. He indicated that he and the victim were not friends but were acquainted for a few weeks by frequenting the same areas.
[14] Mr. MacLean explained that he was in the city park, at the corner of Church Street and Queen Street, when this exchange occurred. He was told specifically to stab the victim in the neck and the leg. He immediately walked over to the victim who was in the same park and asked him for cigarettes. He then tried to stab him, but the victim managed to block him and then ran off toward the Eaton Centre, with Mr. MacLean and the other drug dealer pursuing him. The other man said to Mr. MacLean while they were running after the victim, “forget it, I’ll do it myself” and tried to take the knife from him.
[15] However, Mr. MacLean decided he was going to go through with stabbing the victim in order to be awarded the promised crack cocaine. Finally, the two of them caught up with the victim in the Eaton Centre. They threw a yellow sign at him to stop him from running. Mr. MacLean pinned down the victim, then took the knife out of his pocket and began stabbing him. He recalled stabbing the victim five times, once in the abdomen and four times in the back. The other man ran away. Mr. MacLean explained that he took his shirt off because he heard someone in the crowd say, “he’s wearing a blue shirt”. He thought that by taking off his shirt, the authorities would have a harder time finding him. Mr. MacLean was caught and arrested a few minutes later. He reported that he was intoxicated with crack cocaine during this incident, having consumed crack less than an hour prior. He indicated that, to his knowledge, the victim had trauma surgery, recovered, and is presently in jail for unrelated offences.
THE CRIMINAL RECORD
[16] Shane MacLean was born January 8, 1980. He has the following extensive criminal record:
1994-10-21
OSHAWA ON
(YOUTH COURT)
(1) ASSULT SEC 266 CC
(2) MISCHIEF UNDER $1000
SEC 430 (4) CC
(DURHAM REG POLICE 76520)
(1-2) PROBATION 1YR ON EACH CHG
1995-04-03
OSHAWA ON
(YOUTH COURT)
THEFT UNDER $1000
SEC 334 (B) CC
(DURHAM REGIONAL POLICE 76520)
PROBATION 9 MOS & 40 HRS COMM SERV WORK
1995-07-11
OSHAWA ON
(YOUTH COURT)
THEFT SEC 334 (B) CC
(DURHAM REG PF 76520)
PROBATION 12 MOS & 60 HRS COMM SERV WORK
1996-01-4
OSHAWA ON
(YOUTH COURT)
THEFT UNDER $5000
SEC 334 (B) CC (2 CHGS)
(DURHAM REG PF 76520)
TIME SERVED & PROBATION 19 MOS ON EACH CHG
1996-08-08
OSHAWA ON
(YOUTH COURT)
(1) THEFT UNDER $5000
SEC 334 (B) CC
(2) THEFT UNDER $5000
SEC 334 (B) CC
(DURHAM REG PF 76520)
(3) ESCAPE LAWFUL CUSTODY
SEC 145 (1) (A) CC
(DURHAM REG PF 76520)
(1) 1 DAY SECURE CUSTODY & PROBATION 18 MOS & (TIME SERVED 43 DAYS)
(2) 1 DAY SECURE CUSTODY CONC & (TIME SERVED 43 DAYS)
(3) 30 DAYS SECURE CUSTODY & PROBATION 18 MOS
1997-02-25
OSHAWA ON
(YOUTH COURT)
(1) THEFT UNDER $5000
SEC 334 (B) CC
(2) FAIL TO COMPLY WITH RECOGNIZANCE
SEC 145 (3) CC
(3) POSS OF NARCOTIC
SEC 3 (1) NC ACT
(DURHAM REG PS 76520)
(1-2) 25 DAYS SECURE
CUSTODY ON EACH CHG CONC & (TIME SERVED 35 DAYS)
(3) PROBATION 12 MOS
1997-08-05
OSHAWA ON
(YOUTH COURT)
ATT THEFT UNDER $5000
SEC 463-334 (B) CC
(DURHAM REG PF 76520)
24 DAYS SECURE CUSTODY & PROBATION 12 MOS & (36 DAYS PRE-SENTENCE CUSTODY)
1999-10-18
OSHAWA ON
(1) BE & COMMIT
SEC 348 (1) B CC (12 CHGS)
(2) B & E WITH INTENT
SEC 348 (1) (A) CC (4 CHGS)
(3) THEFT UNDER $5000
SEC 334 (B) CC
(DURHAM REG PF 76520)
(1-2) 17 MOS & PROBATION 2 YRS ON EACH CHG CONC (3 MOS PRE-SENTENCE CUSTODY)
(3) 3 MOS & PROBATION 2 YRS CONC
2001-10-31
TORONTO ON
AGGRAVATED ASSULT
SEC 268 CC
(TORONTO PS 007823-01)
18 MOS & (TIME SERVED 4 MOS & 15 DAYS) & PROBATION 2 YRS & MANDATORY PROHIBITION ORDER SEC 109 CC
2003-01-27
BARRIE ONT
(1) ASSAULT A PEACE OFFICER
SEC 270 CC (2 CHGS)
(2) MISCHEIF UNDER $5000
SEC 430 (4) CC
(3) MISCHEIF OVER $5000
SEC 430 (3) CC
(MIDLAND OPP CR-11-02-305)
(1) 4 MOS & DISCRETIONARY PROHIBITION ORDER
SEC 110 CC FOR 5 YRS
(2-3) 2 MOS ON EACH CHF CONC & CONC & RETITUTION $8,845 ON EACH CHG
2004-05-06
TORONTO ONT
(1) ASSULT SEC 266 CC
(2) CARRYING CONCEALED WEAPON
SEC 90 CC
(3) FAIL TO COMPLY WITH PROBATION ORDER
SEC 733.1 CC
(TORONTO PS 007823-01)
(1) 1 DAY & (13 DAYS PRE SENTENCE CUSTODY) & PROBATION 18 MOS
(2-3) 3 MOS ON EACH CHG CONC & CONC
2005-07-08
TORONTO ONT
ASSAULT WITH INTENT TO STEAL
(TORONTO PS 7823-01)
4 MOS & (25 DAYS PRE-SENTENCE CUSTODY) & PROBATION 12 MOS
2005-10-06
TORONTO ONT
(1) THEFT UNDER $5000
(2) ASSAULT WITH INTENT TO RESIST ARREST
SEC 270 (1) (B) CC
(3) FAIL TO COMPLY WITH PROBATION ORDER SEC 733.1 CC
(4) ASSAULT WITH A WEAPON
SEC 267 (A) CC
(5) CARRYING CONCEALED WEAPON
(TORONTO PS 2001007823)
(1) 2 MOS & (4 DAYS PRE-SENTENCE CUSTODY)
(2-3) 1 MOS ON EACH CHG CONSEC & CONSEC
(4-5) 1 MOS ON EACH CHG CONC & CONC & PROBATION 1 YR & DISCRETIONARY PROHIBITION ORDER
SEC 110 CC FOR 10 YRS
2006-01-19
TORONTO ONT
(1) THEFT UNDER $5000
SEC 334 CC
(2) FAIL TO COMPLY WITH PROBATION ORDER
SEC 733.1 (1) CC
(TORONTO PS 2001007823)
(1-2) 2 DAYS ON EACH CHG CONC & 14 DAYS PRE-SENTENCE CUSTODY)
2006-02-16
TORONTO ONT
(1) THEFT UNDER $5000
(2) FAIL TO COMPLY WITH PROBATION ORDER
SEC 733.1 CC
(TORONTO PS 2001007823)
(1-2) 60 DAYS ON EACH CHG CONC & (2 DAYS PRE-SENTENCE CUSTODY)
2006-06-06
TORONTO ONT
(1) FAIL TO APPEAR
SEC 145 (5) CC
(2) THEFT UNDER $5000
SEC 334 CC
(3) FAIL TO COMPLY WITH PROBATION ORDER
SEC 733.1 (1) CC
(TORONTO PS 2001007823)
(1-3) 90 DAYS ON EACH CHG CONC
2006-09-21
TORONTO ONT
(1) ASSAULT WITH THE INTENT TO RESISI ARREST
SEC 270 (1) CC
(2) UTTERING THREATS
(TORONTO PS 2001007823)
(1-2) 90 DAYS& PROBATION 1 YR ON EACH CHG CONC & (6 DAYS PRE-SENTENCE CUSTODY)
2007-03-14
TORONTO ONT
ASSAULT WITH INTENT TO STEAL SEC 344 CC
(TORONTO PS 2001007823)
9 MOS & (3 MOS PRE-SENTENCE CUSTODY) & PROBATION 19 MOS & MANDATORY PROHIBITION ORDER SEC 109 CC
2007-10-11
TORONTO ONT
THEFT UNDER $5000
(TORONTO PS 2001007823)
6 DAYS & (12 DAYS PRE-SENTENCE CUSTODY)
2007-11-15
TORONTO ONT
(1) FAIL TO COMPLY WITH PROBATION ORDER
SEC 733.1 CC
(2) FAIL TO COMPLY WITH PROBATION ORDER
SEC 733.1 CC
(TORONTO PS 2001007823)
(1) 26 DAYS & 2 DAYS PRE-SENTENCE CUSTODY)
(2) 26 DAYS CONC
2007-12-12
TORONTO ONT
THEFT UNDER $5000
(TORONTO PS 2001007823)
26 DAYS & (2 DAYS PRE-SENTENCE CUSTODY) & PROBATION 12 MOS
2008-10-29
TORONTO ONT
ROBBERY
(TORONTO PS 2001007823)
7 MOS & 15 DAYS & (156 DAYS PRE-SENTENCE CUSTODY) & PROBATION 2 YRS & MANDATORY PROHIBITION ORDER SEC 109 CC
2009-10-26
TORONTO ONT
ROBBERY
(TORONTO PS 2001007823)
SUSP SENT & PROBATION 2 YRS & (189 DAYS PRE-SENTENCE CUSTODY) & MANDATORY PROHIBITION ORDER SEC 109 CC
2010-03-30
TORONTO ONT
ASSAULT SEC 266 CC
(TORONTO PS 2001007823)
SUSP SENT & PROBATION 12 MOS & (101 DAYS PRE-SENTENCE CUSTODY)
2010-11-03
TORONTO ONT
(1) ROBBERY
(2) TRAFFIC IN SCHEDULE I SUBSTANCE
SEC 5 (1) CDS ACT
(TORONTO PS 2001007823)
(1-2) 9 MOS ON EACH CHG CONC & (7 MOS PRE-SENTENCE CUSTODY) & PROBATION 1 YR & MANDATORY PROHIBITION ORDER SEC 109 CC
2011-05-06
VICTORIAVILLE QC
POSS BIENS CRIMINELLEMENT OBTENUS DEPASSANT $5000
ART 355 (A) CC
(DCN11515400267499002514) (SQ POSTE MRC D’ARTHABASKAPQ40121-35812)
6 MOIS
2012-05-24
TORONTO ONT
(1) ASSAULT SEC 266 CC
(2) FAIL TO COMPLY WITH PROBATION ORDER
SEC 733.1 (1) CC
(DCN11527400056201001401)
(TORONTO PS 2001 007823)
(1) 2 MOS (73 DAYS PRE-SENTENCE CUSTODY) & MANDATROY WEAPONS PROHIBITION SEC 109 CC
(2) 30 DAYS CONC
2012-09-21
TORONTO ON
(1) THEFT UNDER $5000
SEC 334 CC
(2) THEFT UNDER $5000
SEC 334 CC (2 CHGS)
(3) FAIL TO COMPLY WITH PROBATION ORDER
SEC 733.1 (1) CC
(4) FAIL TO COMPLY WITH PROBATION ORDER
SEC 733.1 (1) CC
(DCN11520800578699001512)
(TORONTO PS 2001007823)
(1) 30 DAYS & PROBATION 2 YRS (26 DAYS PRE-SENTENCE CUSTODY)
(2-3) 30 DAYS ON EACH CHG CONC & CONC
(4) 30 DAYS CONSEC
2013-12-02
TORONTO ON
ROBBERY SEC 344 CC
(DCN11523800212199001511)
(TORONTO PS 2001007823)
24 MOS & PROBATION 2 YRS (CREDIT FOR THE EQUIVALENT OF 12 MOS PRE-SENTENCE CUSTODY)
2014-09-17
TORONTO ON
TRAFFIC IN SCHEDULE I SUBSTANCE
SEC 5 (1) CDS ACT
(DCN11418006350014147103)
(TORONTO PS 2001007823)
329 DAYS (24 DAYS PRE-SENTENCE CUSTODY) & MANDATORY WEAPONS PROHIBITION SEC 109 CC
2015-08-24
TORONTO ON
(1) THEFT UNDER $5000
SEC 334 (B) CC
(2) FAIL TO COMPLY WITH PROBATION ORDER
SEC 733.1 (1) CC
(DCN11523406350018857104)
(TORONTO PS 2001007823)
(1) 34 DAYS (CREDIT FOR THE EQUIVALENT OF 6 DAYS PRE-SENTENCE CUSTODY)
(2) 34 DAYS CONC
2015-09-28
TORONTO ON
(1) ROBBERY SEC 343 CC
(2) FAIL TO COMPLY WITH PROBATION ORDER
SEC 733.1 (1) CC
(3) THEFT UNDER $5000
SEC 334 (B) CC
(4) THEFT UNDER $5000
SEC 334 (B) CC
(5) THEFT UNDER $5000
SEC 334 (B) CC
(6) THEFT UNDER $5000
SEC 334 (B) CC
(7) THEFT UNDER $5000
SEC 334 (B) CC
(8) THEFT UNDER $5000
SEC 334 (B) CC
(9) THEFT UNDER $5000
SEC 334 (B) CC
(10) THEFT UNDER $5000
SEC 334 (B) CC
(11) THEFT UNDER $5000
SEC 334 (B) CC
(12) THEFT UNDER $5000
SEC 334 (B) CC
(13) FAIL TO COMPLY WITH PROBATION ORDER
SEC 733.1 (1) CC
(14) THEFT UNDER $5000
SEC 334 (B) CC
(15) FAIL TO COMPLY WITH PROBATION ORDER
SEC 733.1 CC
(DCN11525306350013979103)
(TORONTO PS 2001007823)
(1) 60 DAYS & PROBATION 1 YR (CREDIT FOR THE EQUIVALENT OF 21 DAYS PRE-SENTENCE CUSTODY) & MANDATORY WEAPONS PROHIBITION SEC 109 CC
(2-15) 15 DAYS ON EACH CHG CONSEC & PROBATION 1 YR
2016-06-16
TORONTO ON
ASSAULT SEC 266 CC
(DCN11616806350016038104) (TORONTO PS 2001007823)
57 DAYS & PROBATION 12 MOS (CREDIT FOR THE EQUIVALENT OF 3 DAYS PRE-SENTENCE CUSOTY) & DISCRETIONARY WEAPONS PROHIBITION SEC 110 CC FOR 5 YRS
2016-08-10
TORONTO ON
THEFT UNDER $5000
SEC 334 (B) CC
(DCN11622306350013945104)
(TORONTO PS 2001007823)
12 DAYS & S5 (CREDIT FOR THE EQUIVALENT OF 3 DAYS PRE-SENTENCE CUSTODY)
2016-08-22
TORONTO ON
THEFT UNDER $5000
SEC 334 (B) CC
(DCN11623306350014875100)
(TORONTO PS 2001007823)
24 DAYS (CREDIT FOR THE EQUIVALENT OF 6 DAYS PRE-SENTENCE CUSTODY)
2017-04-13
TORONTO ON
(1) UTTERING THREATS
SEC 264.1 (1) (A) CC
(2) ASSAULT A PEACE OFFICER
SEC 270 (1) (A) CC
(DCN11711006350014225100)
(TORONTO PS 2001007823)
(1) 30 DAYS DISCRETIONARY WEAPONS PROHIBITION SEC 110 CC FOR 10 YRS
(2) 30 DAYS CONC & DISCRETIONARY WEAPONS PROHIBITION SEC 110 CC FOR 10 YRS
[17] Despite having such a lengthy and serious criminal record, Mr. MacLean has not yet been sentenced to a penitentiary term of two years or more. The expression “doing life on the installment plan” reflects his sentences to this point in time.
THE EXPERT EVIDENCE
Alina Iosif
[18] Dr. Iosif conducted extensive interviews with Mr. MacLean and reviewed voluminous materials related to his personal and criminal history. She prepared four reports and testified twice on this application. A significant focus of her evidence and opinions relates to the critical issues of risk assessment and treatability. She has comprehensive knowledge of the counselling and programs available to inmates in the federal correctional system. She had the benefit in this case of assessing Mr. MacLean over the several years that this application has taken.
[19] In her report, dated December 21, 2018, Dr. Iosif diagnosed Mr. MacLean as exhibiting traits of Antisocial Personality Disorder (ASPD) and Polysubstance Use Disorder. His criminal conduct from a young age also indicated that he amply met the criteria for conduct disorder. She referred to a high risk of general and violent reoffending. That risk would increase with substance abuse. His motivation to change and respond to treatment was unclear. He required a high level of intervention and resources to decrease the risk. Engagement in the high intensity Integrated Correctional Program Model (ICPM) was recommended. That program is only available in the federal penitentiary system with inmates who are held for at least two years.
[20] ASPD is diagnosed where there is a pervasive pattern of disregard for, and violation of, the rights of others, occurring since the age of fifteen.
Erin Brennan
[21] Erin Brennan is employed by Correctional Service of Canada (CSC). She was qualified on consent to provide opinion evidence as an expert in the assessment, classification and treatment of offenders in the penitentiary system. She was also so qualified to provide opinion evidence on the policies, procedures and protocols regarding the supervision of high-risk offenders in the community. She outlined the programs available in the federal institutions and supervision available in the community after release.
[22] The ICPM takes a holistic approach. There is a twelve-step primer program to prepare the inmate for the main program. The goal is to gain access to the primer program as soon as possible when motivation is at its highest after the offender first enters the federal system. The main program includes approximately ninety-one sessions with roughly six sessions per week. Each session lasts from two to two and a half hours. The key at the outset is voluntary participation. Nobody is forced to participate. However, failure to participate or complete the program would be reflected in the correctional plan, which impacts the plan of eventual release. If an offender loses motivation, there is a model designed to help the offender to re-engage with the program.
[23] There is no statutory right of release on an indeterminate sentence. The offender must earn his conditional release, unescorted temporary absence, day parole or parole. The first time to apply for full parole is seven years after the date of arrest. For Mr. MacLean that would be September 20, 2023. If full parole is denied on the first application, the issue is reviewed every two years thereafter. An application for day parole can be made four years after the date of arrest. The decisions on all these matters is made by the National Parole Board. Offenders with indeterminate sentences are released depending on their behaviour in the institution and whether the risk to the public can be managed. Those who actively engage in programming and whose risk becomes manageable are supported for release.
[24] On a determinate sentence, the eligibility for a form of release is the same as for any other sentence. They are eligible for day parole six months prior to their full parole date which is one third of the sentence. The statutory release date is two thirds of the sentence. The warrant expiry date is the full term of the sentence. The offender must be released on that date even if no programs have been completed and even if the offender is deemed to be at high risk to offend on release.
[25] An offender who is subject to a LTSO is subject to its terms for the length of that order. When it is completed, there is no oversight in the community. An offender with an indeterminate sentence is potentially subject to supervision on release for life.
EVIDENCE PRESENTED ON BEHALF OF THE RESPONDENT
[26] Duane Phaure is the respondent’s older brother. He has led a stable and successful life. He now lives in Pittsburgh with his wife and family. He testified about the difficult life that he and his brother had when they were young and residing with their mother. Issues in the home included food insecurity and open drug use by their mother and other persons who were in the home from time to time. Their father lived apart from them. Their mother engaged in parental alienation with her sons toward their father. The brothers remained close to each other during a tumultuous childhood. Mr. Phaure viewed himself as his brother’s protector.
[27] Mr. Phaure eventually lived with his father for a year before his brother joined them. During that time, Mr. Phaure believes that his brother was “brainwashed” by his mother. Eventually the respondent came to live with his brother, father and stepmother. That family situation was positive but strict. Mr. Phaure feels responsible for the problems that enveloped his brother over time. He is ready and willing to provide ongoing support for his brother going forward, albeit from a significant distance.
[28] Robert Jacobs is the respondent’s uncle by marriage. He is a member of Alcoholics Anonymous (AA). He is willing to support the respondent and get him into AA. He candidly testified that he has offered such support in the past and the respondent did not take him up on it.
[29] Althea Parkinson is a social worker who has worked with the respondent for years. Her duties include release planning for incarcerated offenders and connecting them to supports in the community. This is a voluntary process on the part of the offender and extends for up to twelve months after release. She acknowledged in cross-examination that she has no specific training for dealing with persons who are diagnosed with ASPD or polysubstance use disorder.
STATUTORY PROVISIONS
[30] Part XXIV of the Criminal Code, R.S.C., 1985, c. C-46, includes the following provisions that apply in this matter:
Application for finding that an offender is a dangerous offender
753 (1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied
(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing
(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour,
(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour.
Sentence for dangerous offender
(4) If the court finds an offender to be a dangerous offender, it shall
(a) impose a sentence of detention in a penitentiary for an indeterminate period;
(b) impose a sentence for the offence for which the offender has been convicted — which must be a minimum punishment of imprisonment for a term of two years — and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or
(c) impose a sentence for the offence for which the offender has been convicted.
Sentence of indeterminate detention
(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.
If offender not found to be dangerous offender
(5) If the court does not find an offender to be a dangerous offender,
(a) the court may treat the application as an application to find the offender to be a long-term offender, section 753.1 applies to the application and the court may either find that the offender is a long-term offender or hold another hearing for that purpose; or
(b) the court may impose sentence for the offence for which the offender has been convicted.
Application for finding that an offender is a long-term offender
753.1 (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that
(a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;
(b) there is a substantial risk that the offender will reoffend; and
(c) there is a reasonable possibility of eventual control of the risk in the community.
Sentence for long-term offender
(3) If the court finds an offender to be a long-term offender, it shall
(a) impose a sentence for the offence for which the offender has been convicted, which must be a minimum punishment of imprisonment for a term of two years; and
(b) order that the offender be subject to long-term supervision for a period that does not exceed 10 years.
If offender not found to be long-term offender
(6) If the court does not find an offender to be a long-term offender, the court shall impose sentence for the offence for which the offender has been convicted.
Long-term supervision
753.2 (1) Subject to subsection (2), an offender who is subject to long-term supervision shall be supervised in the community in accordance with the Corrections and Conditional Release Act when the offender has finished serving
(a) the sentence for the offence for which the offender has been convicted; and
(b) all other sentences for offences for which the offender is convicted and for which sentence of a term of imprisonment is imposed on the offender, either before or after the conviction for the offence referred to in paragraph (a).
ANALYSIS
[31] The parties have properly focused their submissions on the issue of intractability. Future treatment prospects and intractability must be considered at the designation as well as the sentencing stage on dangerous offender applications: see R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at paras. 42, 44 and 45; R. v. Brown, 2021 ONCA 320, at paras. 23 and 24.
[32] Based on Mr. MacLean’s psychiatric profile, as well as his personal and criminal history, Dr. Iosif expressed legitimate concerns about his professed commitment to change his ways related to the management of risk in the community. His track record of breaches of court orders does not augur well for compliance. However, Dr. Iosif did not foreclose the notion that under certain strict conditions, the risk to the community could be managed at a later date. I accept her opinion that the best and only chance must follow his participation in the intensive programs and counselling that are only available in the federal penitentiary system. That requires a sentence going forward from the date of my ruling of at least two years before he is eligible for parole.
[33] The paramount concern on this application is the protection of the public. The options available to the court extend beyond the intensive programs in the penitentiary system. By crafting a sentence that includes a ten-year LTSO on top of the custodial term, I believe that the risk to the community can be managed. There are no guarantees but there are significant guard-rails that the court can impose to accomplish that goal. It is interesting to note that Mr. MacLean has not been involved in any violent incidents in the years he has been in custody awaiting this disposition. Offenders with a history of violence often act out against other inmates or correctional officers during extended times in detention awaiting sentence.
[34] Protection of the public is an enhanced sentencing objective for those designated a dangerous or long-term offender. This may justify a fixed term that is lengthier than would be appropriate outside the dangerous offender context: see R. v. Spilman, 2018 ONCA 551, at paras. 28, 30, 32, and 51-54.
[35] Mr. MacLean has been in custody on these charges since his arrest on September 20, 2016. As of the date of my ruling on June 17, 2021, there would be a credit for pretrial custody of seven years. Counsel advise that Mr. MacLean will likely be eligible for parole after serving two thirds of a total determinate sentence. A total sentence of fourteen years would set parole eligibility after approximately 9.25 years. With credit for seven years pretrial custody, he would have to serve approximately 2.25 years going forward before parole eligibility. That is close to the minimum required for the critical intensive programs available only in the penitentiary system.
[36] Following his release from custody Mr. MacLean will be subject to a ten year LTSO with several terms. A list of those terms is attached to these reasons as an appendix. If Mr. MacLean were to breach any of the terms of the LTSO or commit a further offence, he may well attract the intractability label on a further application by the Crown.
RESULT
[37] Mr. MacLean is designated as a long-term offender.
[38] There will be the following ancillary orders:
Aggravated assault is a primary designated offence. Pursuant to ss. 487.04 and 487.051 of the Criminal Code he is ordered to provide a DNA sample for the national data bank;
Pursuant to s. 743.21 of the Criminal Code for the duration of his custodial term he is not to have any direct or indirect contact with Tyrell Ochrym (the victim of the stabbing);
Pursuant to s. 109 of the Criminal Code there will be a lifetime weapons prohibition; and
Pursuant to s. 753.1(3) of the Criminal Code there will be a ten-year LTSO.
[39] The determinate sentences are as follows;
Count 7–Aggravated assault–13 years
Count 6–Weapons dangerous–9 years concurrent to the sentence on count 7
Count 2–Breach of probation–1 year consecutive to the sentences on counts 7 and 6.
The total sentence is 14 years less credit of 7 years for pretrial custody.
O’Marra J.
B.P. O’MARRA J.
Released: September 10, 2021
APPENDIX
Long-Term Supervision Order Conditions for Supervision
1.That he attend and complete the Integrated Correctional Program Model (high intensity stream) while incarcerated and that he continue with any maintenance programs while incarcerated and while in the community to address both antisocial personality disorder and polysubstance abuse disorder and relapse prevention;
2.That he be released into the community on a graduated and slow basis with an extended period of time living in a residential correctional facility under close supervision;
3.That any privileges and unsupervised time away from the facility be earned through demonstrated compliance with programs and supervision;
4.That he be subject to a curfew while living in supervised housing;
5.That he abstain absolutely from consuming any alcohol or non-medically prescribed drugs or substances and that he be subject to uranalysis at least once or twice a week for an extended period of time to ensure abstinence
6.That he receive psychiatric and/or psychological counselling (group and/or individual) on a frequent basis while in the community;
7.That he be enrolled in vocational and/or educational programs upon his release;
8.That he be required to sign reciprocal consents for all the people involved in his care and supervision while in the community; and
9.That he be subject to regular, unannounced visits by probation and parole officers once living outside a correctional facility.
COURT FILE NO.: CR-17-1-0000-654
DATE: 20210910
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
SHANE MACLEAN
Respondent
Ruling on dangerous offender application
B.P. O’MARRA J.
Released: September 10, 2021