COURT FILE NO.: SC#150/18
DATE: 2022-03-24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
DENNIS GEORGE
Respondent
Jason PJ Miller, for the Applicant
Eric T. Seaman, for the Respondent
HEARD: November 22, 23, 24 and 25, 2021
thomas, rsj.:
Background
[1] On November 18, 2019 Dennis George was found guilty of the offence of aggravated assault after a trial before Justice Ian Leach. Prior to sentencing, the Crown brought an application for an order pursuant to s. 752.1(1) remanding George for a psychiatric assessment as a first step towards this dangerous offender application.
[2] On January 14, 2020 Justice Leach granted the assessment application. On June 10, 2021 as part of a case supervision hearing pursuant to r. 35.03(1), I found that Justice Leach was unable to continue to hear this matter as a result of an extended medical leave (s. 669.2(1)). With the consent of counsel, I directed that I would continue this proceeding.
[3] By application dated October 5, 2021 the Crown seeks pursuant to s. 753 to have George declared a Dangerous Offender and sentenced to a penitentiary for an indeterminate period. (s. 753(4)(a)).
Admissions
[4] Counsel has agreed on certain statutory thresholds and procedural shortcuts to expedite the hearing. As a result, the Court has been able to make efficient use of court time and focus on the matters truly in issue.
[5] Counsel agree and I find that:
The offence of aggravated assault for which Mr. George was convicted on November 18, 2019 constitutes a Serious Personal Injury Offence, as that term is defined in s. 752 of the Criminal Code of Canada.
The following statutory pre-conditions for a dangerous offender designation have been met in s. 753 and 754 of the Criminal Code of Canada, including:
a. The Attorney General for the Province of Ontario has provided his consent to this application. [s. 754(1)(a)]
b. Mr. George has received at least seven days notice from the prosecutor of the Part XXIV Application and the basis upon which it is intended to be found on. [s. 754(1)(b)]
[6] The balance of the admissions allows for the electronic filing of an array of historical documents regarding Dennis George’s interaction with the criminal justice system. No further proof is necessary, and the truth of the contents is admitted.
The Predicate Offence
[7] The description of this offence is gleaned from the trial judgment of Justice Leach and his findings of fact.
[8] In July, 2017 Dennis George was injecting methamphetamine on a regular basis. He was often “high” and exhibiting hallucinations. The evidence revealed that George was injecting himself every two or three hours during the day on July 31, 2017. He was with the victim, Ms. Melhuish, and several male acquaintances, Burwell, and Smith. All were using the substance. George had not been taking his Olanzapine regularly and was described as “very high”.
[9] At about 10:15 p.m., George, who had gone back to his apartment for a time, returned to the residence of Melhuish and the others. Melhuish had a conversation with George about how he was doing and then for no apparent reason, George began striking her in the head and face with a hammer he had retrieved from the home. Melhuish was sitting in a recliner. Mr. Smith, observing the assault, felt there were as many as 10 forceful blows before George attempted to get at Smith, who had tried to intervene. George then returned to the unconscious Melhuish, striking her three or four more times on the head.
[10] Dennis George then left the home, discarding the hammer on the driveway. George was arrested some distance away, slumped over on the front porch of a residence. He was incoherent. Justice Leach, at p. 26 of his Reasons dated November 18, 2019, described the injuries to Ms. Melhuish as follows:
o As for Ms Melhuish, she had been transported to hospital, where she was confirmed to have sustained catastrophic injuries requiring several surgical procedures and, over time, extended rehabilitation that brought substantial rehabilitation while nevertheless leaving her with significant and permanent disabilities. In particular:
o As noted above, there were complex fractures of virtually every bone in her skull and face. She also sustained an incidental displaced open fracture of her left fourth finger; apparently an initial defensive wound sustained before she was rendered unconscious.
o Her head injuries required multiple sites of open fixation with wires and other hardware, and a large section of her skull was beyond repair, leaving her with a defect approximately 10 centimeters in diameter.
o While her facial bones and jaw were all stabilized, and her orbital sockets were reconstructed, her left eye was ruptured and had to be removed.
o Ms Melhuish also suffered severe damage to several areas of her brain, and required at least two return visits to the operating room to stabilize her resulting brain swelling.
o She remained on life support for several days, and initially was dependent on a tracheotomy for continued breathing, while also experiencing several seizures.
o During follow up treatment, she repeatedly experienced abscess development on her brain and left eye socket, requiring repeated treatment.
o As her initial wounds healed, the severity of those wounds nevertheless left her with severe disfigurement; e.g., to her scalp, eye and facial features. She also now has a prosthetic left eye. While hoping to undergo a future procedure to place a prosthesis over her skull defect, she is required to wear a protective helmet.
o The neurological damage Ms Melhuish sustained also was severe enough to leave her with significant emotional and physical impairment, including a “pseudobulbar effect”, (i.e., inappropriate emotional expressions, such as inappropriate smiling, laughing, anger and crying), as well as spasticity in her legs and feet, and multiple abnormal reflexes, all of which have left her with an abnormal gait, and have affected her ability to walk. She accordingly now uses a wheelchair for much of her mobility, apart from occasional use of a wheeled walker to navigate short distances. She must still take a number of medications; e.g., to control her susceptibility to seizures. Her brain injuries also have left her with impaired judgment, impulsivity, (including an overeating disorder), and cognitive difficulties, along with a low maturity level.
[11] Justice Leach found that George was in a state of “advanced intoxication” at the time of the attack, and while finding him not guilty of attempted murder, convicted him of aggravated assault.
[12] For this application, I have received an updated medical report from Dr. Jeffrey L. DiTomasso, who began treating Ms. Melhuish in November, 2020 at an extended care facility in Kingston.
Present Condition
[13] He describes her present condition as follows:
Ms. Melhuish has been left with significant physical, behavioural, and cognitive impairments following her injury.
Physically, she continues to have an open skull defect which requires her to wear a helmet at all times to prevent a life-threatening injury to the portion of her brain which is not covered by skull. She hopes to have this repaired in the future.
Her mobility is impaired and she walks using a 4-wheeled-walker. This has improved since her admission, when she was dependent on a wheelchair for much of her mobility.
She has been left with a permanently disfigured face and skull. She continues to wear a left eye prosthetic. She has dealt with recurrent periorbital infections of the eye which have required antibiotic treatment, procedures to drain infection, and ultimately a surgery on her tear duct. She has not had any infection in the last year, however she remains limited in her vision in the sense that she can only use her right eye.
She has a chronic left 4th finger deformity which renders the finger non-functional in her day-to-day life. She describes pain in this finger and is awaiting a plastic surgery appointment to determine whether any further surgery can help.
Her most significant impairments are cognitive, emotional and behavioural. Regarding her cognitive and emotional state, her “pseudo-bulbar affect” has improved somewhat. However she continues to inappropriately express emotions, such as smiling when she is not feeling happy. Her cognitive impairment persists. She has also suffered from impulsive eating which has improved somewhat but has not resolved. She states that she thinks of her injuries and attacker daily.
Functionally, Ms. Melhuish remains dependent upon others for basic daily tasks such as bathing and preparing food. She continues to hope she may live independently, however it remains difficult to see how she would be able to manage outside of a supervised setting with nursing and personal support workers available to support and supervise her.
Ms. Melhuish continues to take multiple medications. These include acetaminophen, amitriptyline, diclofenac and duloxetine for pain, levetiracetam to prevent seizures, and melatonin to help with sleep.
Courtney Melhuish
[14] Courtney Melhuish read her victim impact statement during this hearing connected to the courtroom by Zoom. Ms. Melhuish was with a victim support worker. She was wearing a helmet consistent with the medical update. While she was able to read her statement, she is clearly significantly cognitively impaired as a result of this assault.
[15] She described her medical treatment including the induced coma. Ms. Melhuish told me of her seizures; the fact that she needs a walker for support and that a portion of her skull is still missing. She suffers from chronic pain in her back, neck, and hands. As part of her rehabilitation, she has had to learn how to walk, talk and feed herself.
[16] She reminded me that she is only 37 and yet must live in a long-term care facility where the residents are much older. Ms. Melhuish described ongoing nightmares and the fear that George would return to hurt her.
[17] The following oral evidence was called by the Crown to support its application.
Shelley Griffith
[18] Shelley Griffith, (“Griffith”), has been employed by Correctional Service Canada, (“CSC”), for 25 years. The last eight have been as the parole officer supervisor in the City of London. She was called by the Crown to discuss the opportunities for release from a federal sentence and community supervision and reintegration. As the defendant is Indigenous, some time was spent on specific risk assessment and programming provided for offenders who identify as Indigenous.
[19] Griffith discussed the initial assessment stage to take place within five days of sentencing. An initial attempt is made, no matter what the sentence, to garner historical information, gain community contacts and assess present needs. From there, the federally sentenced prisoner is transferred to the penitentiary at Joyceville for classification; a process that takes, on average, four to six months.
[20] At Joyceville, a Correctional Plan is created for the offender. This is the most important document in the life of the inmate and becomes a blueprint for placement and programming. It will define whether the inmate is low/medium/high-risk and is continually updated.
[21] Mental health screening is undertaken which might include a psychological assessment. In a case such as this one, the initial assessment relies upon the s. 752.1 assessment report.
[22] For offenders who identify as Indigenous, an option is given for the inmate to be part of the regular programming or follow a traditional healing path. An Elder or spiritual advisor meets with the offender as part of the intake and classification to capture as much social history as possible.
[23] A special risk assessment instrument is utilized for Indigenous offenders called the Criminal Risk Scale, (“CRS”), as the SRI used for non-Indigenous offenders has been found to be inappropriate.
[24] On the issue of release, CSC makes recommendations to the National Parole Board, which makes the decision on conditional release.
[25] An inmate sentenced to a fixed term is eligible for full parole after serving one-half of the sentence and eligible for day parole six months before that. After two-thirds of the sentence has been served, there is legislated statutory release, unless the Parole Board finds public safety directs that the incarceration continues. The warrant expiry date is when the full sentence is served, and the inmate is released without conditions or supervision. A paroled offender, before the parole expiry date, will be supervised in the community by his/her parole officer.
[26] An offender who is sentenced as a dangerous offender to an indeterminate sentence (s. 753(4)(a)) is eligible for parole seven years after arrest, and day parole three years prior to that. Griffith indicated that of the 130-140 paroled offenders in the London catchment area, only three were dangerous offenders.
[27] If an offender is subject to a long term supervision order, (“LTSO”), it commences upon the warrant expiry date. During the period of an LTSO, the offender continues to be supervised as he/she was while on parole. The frequency or intensity of supervision is adjusted to the needs and concerns related to the offender.
[28] The Parole Board will impose conditions for the LTSO which may include directing a residence term including a community residential facility like John Howard or St. Leonard’s. Those facilities can refuse to take an offender. The option then is one of the two Community Correctional Centres, (“CCC”), which are located in Toronto and Kingston. In addition to residency, there may be conditions to be medication compliant and not to use illegal substances.
[29] If an offender violates a term of the LTSO, he/she can be taken back into custody. At point, the Parole Board decides, in consultation with CSC representation, whether a breach charge should be laid. If a charge is not laid, the offender can only be held for up to 90 days and then is released back into the community.
[30] If the offender was sentenced to an indeterminate term, the Parole Board has the option of revoking the release completely and putting the offender back into custody.
Daria Swain
[31] Daria Swain, (“Swain”), is employed by CSC in the assessment unit at Joyceville Penitentiary as the Indigenous Intervention Centre Co-ordinator. This is a new position created by CSC in the spring of this year. Swain testified regarding the programming available to those offenders who identified as Indigenous.
[32] As part of a reorganization of programming in 2010, the Indigenous Integration Correctional Program Model, (“IICPM”), was created which takes the Indigenous offender through five modules of counselling in a group setting. The modules target the offender’s spiritual, emotional, mental, and physical wellbeing. The program is delivered from a culturally appropriate perspective, and in the case of high-risk offenders, the high intensity programming is 112 sessions of 2 ½ hours each.
[33] Once the Model is completed, there is aftercare with an institutional maintenance program and then, upon release, a community maintenance program. Each unit attempts, where able, to connect the offender to Elders.
[34] Should an Indigenous offender decline the traditional stream, he will be admitted into regular programs taken by all other offenders but will have access to Indigenous ceremonies and other Indigenous services.
[35] It is clear that there is a waiting list for a high intensity IICPM program in Ontario penitentiaries. Priority for acceptance is at least in part determined by the parole eligibility date, which for dangerous offenders with an indeterminate sentence, is seven years from arrest.
[36] Swain confirmed in cross-examination the presence of healing lodges for offenders who are serving federal sentences, potentially including those who have received sentences of indeterminate duration. She also confirmed that London has an Indigenous Community Liaison Officer who meets with offenders upon release to assess risks and needs, and direct them to appropriate Indigenous services.
Karen Thomson
[37] Karen Thomson, (“Thomson”), is employed by the Parole Board of Canada as the Regional Manager of the Conditional Release Program for Ontario and Nunavut. She works from her location in Kingston. In her position, she supports Parole Board members and supervises case review and hearing officers in Ontario and Nunavut.
[38] Thomson provided evidence regarding the functions of the Parole Board in releasing offenders into the community and the enforcement of parole and conditions post-release. She also provided to counsel important National statistics regarding offenders on various forms of sentences considered in this hearing, who are incarcerated, or on terms of release. The statistics, which will come later in this decision, break out the numbers for Indigenous offenders.
[39] Thomson described that an offender, found to be a Dangerous Offender and given an indeterminate sentence, will have a Parole Board hearing on the full parole date, and if parole is denied, every two years thereafter. The offender can apply for a review one year after a denial of parole. All information coming to the Parole Board is provided by CSC and disclosure is given to the offender who may be provided with legally assisted counsel.
[40] Day parole may be authorized up to six months at a time, and depending on the result, it may be renewed, revoked or there may be full parole.
[41] For an offender found to be a Dangerous Offender and given a determinate sentence, the terms of release are the same as an ordinary offender, with full parole and statutory release after two-thirds of the sentence is served, unless the Parole Board directs incarceration until the full parole date for the purpose of public safety.
[42] Those offenders who are subject to a LTSO (a community based order) will have a condition of residency imposed upon them for up to 365 days. There may, as well, be a curfew and a condition to be assessed by a medical professional and follow the directed regime including taking medication.
[43] For breaches of conditions of a LTSO, the process is the same whether or not the offender has been designated as a Dangerous Offender. Police may lay a charge or CSC can recommend to the Parole Board that an information be laid. The Parole Board then may suspend the LTSO for a period of custody or vary the terms. If no action is taken, CSC can hold the offender for a maximum of 90 days before release into the community on the LTSO.
[44] If an offender is on parole after having received an indeterminate sentence and there is a breach, the Parole Board has the option of revoking parole and bringing the offender back into custody to be reviewed a year later, and every two years thereafter.
[45] Thomson told the Court that with Indigenous offenders, the Parole Board must consider Gladue factors including the impact of discrimination on the offender and the offences.
[46] The Parole Board must consider a social history including the terms of any Gladue Report prepared for sentencing. The Gladue factors are considered for parole on all sentences including indeterminate sentences.
[47] The Agreed Statement of Facts prepared with the assistance of Thomson is duplicated below because of its importance in providing a view of the sentences prescribed for serious offenders, the numbers on those who attain parole, and the over-representation of Indigenous offenders in all categories:
The current population of Canada is approximately 38 million per census data.
Approximately 4.9% of the Canadian Population identify as indigenous per census data.
The statistics listed below contain a total number of offenders and then beside it in parenthesis the number of those offenders who are identified as indigenous.
The current number of offenders declared Dangerous Offenders serving indeterminate sentences is 690(228).
Of those currently serving indeterminate sentences:
a. 626(207) are incarcerated;
b. 26(11) are on day parole;
c. 34(10) are on full parole;
d. 4(0) have been deported.
The average length of incarceration for indeterminate Dangerous Offenders prior to initial release on day or full parole is 16.3(16.0) years.
The current number of offenders declared Dangerous Offenders serving determinate sentences is 223(95).
Of those serving determinate sentences:
a. 220(93) are subject to Long-term Supervision Orders;
b. 99(42) are currently on the Long-term Supervision Order portion;
c. 17(10) are on statutory release: [13(6) on statutory release as part of their initial sentence, prior to the start of their LTSO period; 4(4) on statutory release during a sub-sentence, after starting to serve their LTSO period];
d. 2(1) are on day or full parole;
e. 102(40) are still incarcerated: [Of the 102(40) that are still incarcerated, 8(3) are presently detained, 3(2) will be detained upon reaching SRD (PBC has rendered the decision to detain them), 5(4) have been detained earlier in the sentence (previous term)].
The number of non-Dangerous Offenders subject to a Long-term supervision order is currently 715(205).
Of these:
a. 198(63) are incarcerated;
b. 3(0) are on day parole;
c. 2(0) are on full parole;
d. 67(14) are on statutory release;
e. 439(128) are on their Long-term Supervision Order;
f. 6(0) have been deported.
- Of the 198(63) that are still incarcerated, 9(5) are presently detained, 7(2) will be detained upon reaching SRD (PBC has rendered the decision to detain them), 24(13) have been detained earlier in the sentence (previous term).
Dr. Philip Klassen
[48] Dr. Klassen was qualified as an expert in forensic psychiatry with special expertise in risk assessments for violent offenders. He has prepared approximately 240 s. 752.1 reports and testified as an expert across Canada approximately 500 times.
[49] In the preparation of his report on Dennis George, he spoke to George’s brother, daughter, and ex-wife. He spoke to George five times for a total of 6 ½ hours. His report dated June 8, 2020 details this offender’s background, his criminal history, his interaction with the criminal justice system, including his history with correctional institutions. The report provides a diagnosis and a plan of treatment for risk management. In addition to his report, Dr. Klassen’s testimony was insightful, pragmatic and of significant assistance to me.
[50] Dr. Klassen diagnosed Dennis George with the following:
a. Confirmed previous diagnosis of ADHD and Learning Disorder(s)
b. Retroactive diagnosis of Conduct Disorder
c. Antisocial Personality Disorder (“ASPD”)
d. Substance Use Disorder – Stimulants
e. Substance-induced Psychotic Disorder
f. Delusional Disorder
[51] Dr. Klassen felt his contact with George’s family members was quite helpful to his assessment. He said he found them to be intelligent, caring and yet not naïve to the issues George continues to face. They are, however, exhausted by his continued drug use and criminality and it is difficult to see them providing any meaningful support for Dennis George in the community. His last attempts to live with his two brothers disintegrated rapidly. George was cooperative throughout the assessment process and seemed straightforward in his answers. He went to live with his father at age 15. Even before that he was using substances. George committed his first robbery at age 15. He idolized his father who was part of the drug sub-culture. He was attracted to the criminal lifestyle with few controls. While he maintains that he is not institutionalized, he is more comfortable in custody where he can escape any concern about being accountable in the community to friends and family. All of his relatives support this view. He struggled in school. It seems he had a learning disability and ADHD. He developed a conduct disorder which went untreated and lead to a present diagnosis of “antisocial personality disorder.” He has few life skills and has had no adult employment. He has used a variety of illegal stimulants and many of his violent convictions took place while he was binging crystal methamphetamine. He is taking a prescription stimulant now called “Vyvanse” which is to assist him with his concentration due to his ADHD.
[52] George has a history of snorting antidepressants as a stimulant and despite his suggestion that he has not been using methamphetamine, it was recently found in his blood (2021) while incarcerated on this matter.
[53] George has no relapse prevention plan. He says he has stopped using opioids and can stop using substances. He has declined any substance abuse counselling since 2003. He says alcohol is not a problem, despite consuming alcohol and drugs prior to some of his offences. He refuses to take injectable medication. He takes olanzapine (an antipsychotic) which cannot be injected for long term coverage. He has no insight into his drug use or his mental health issues.
[54] Dr. Klassen advises that George’s antisocial personality disorder is treatment resistant. There is no drug treatment for it, and it requires cognitive behavioural therapy (which he refuses). Dr. Klassen says he likely has a delusional disorder, although he cannot be positive. Doctors in the facilities have varying diagnoses. Dr. Klassen tested him on the PCL-R (Psychotherapy Checklist -Revised). He scored 28/40 which is on the 76th percentile, moderately high for recidivism, but about average for offenders if one removes pedophiles. However, they only assess the psychopathy problem. George has other serious challenges, including the personality disorder and serious addictions.
[55] The HCR-20 tool found him at 30 for both release with controls and without. This suggests a high to very high risk for violent recidivism, likely sooner as opposed to later. However, the level of violence cannot be predicted. The imminence of violence appears to be live (a rapid return to aggression in the community). This assessment tool looks out about ten years into the future in its scope.
[56] The doctor’s cross-examination revealed the following. Dennis George should be treated for his delusional disorder, using an injectable (not, therefore Olanzapine, his present medication). There is no cognitive behavioral therapy available through CSC or RTC (Regional Treatment Centre). George was in and out of RTC a number of times but made no real headway.
[57] It has been 18 years since he has had any psychological therapy, but he refused it and maintained his lack of interest to Dr. Klassen. He has been untreated in custody for his dynamic risk factor. If released, he must go to a CCC where he will have supervision. Tight controls will help and there needs to be immediate interventions to put him back into custody, if required, to interrupt the pathway of reoffending.
[58] The most positive factor is that he is 51. Most offenders show significant decline in violent recidivism by age 60. This may be due to a loss of energy, a drop in testosterone and the loss of thrill with the unstructured lifestyle. It would therefore be helpful if sentence in custody continued until age 60. But it is not possible to quantify the degree of reduction in risk that advancing age might produce or if the general theory of age-related burnout would hold true for George.
[59] Dr. Klassen’s opinion is that George presents with a probability of future aggressive behaviour. Dr. Klassen states:
In terms of this gentleman’s offense cycle, should he be released today, or in the immediate or reasonably foreseeable future[^123], I would expect that this gentleman would present with lifestyle instability and challenges with supervision, flowing from loneliness, lack of skills and/or viable employment opportunities, and difficulties coping with life in the community. This could lead to association with unstable and/or substance-using intimate partners, or other negative peer associations, compounding this gentleman’s difficulties with addictions. This in turn could contribute to cessation of use of antipsychotic medication, and ultimately, through some combination of stimulant abuse and lack of antipsychotic medication, to an agitated and suspicious state, which might include jealousy or even jealous delusions (potentially leading to intimate partner violence), or more acutely disorganized delusional material, which could lead to a variety of unfortunate outcomes (as seen on this gentleman’s most recent release).
[60] Dr. Klassen also noted that from a psychiatric perspective that:
(a) Structured risk appraisal suggests that George is a high risk for Future aggressive behaviour; and
(b) There will be serious challenges to his manageability.
[61] Dr. Klassen noted that George has undergone the following treatment:
(a) 1993 Substance Treatment
(b) 1994 Anger Treatment
(c) 1995 Cognitive Skills Treatment
(d) 1997 Substance Treatment (in the community)
(e) 2000 Maintenance Substance Treatment
(f) 2004 Maintenance Substance Treatment
[62] Dr. Klassen took the position that George was essentially untreated at this time since he has refused all programming since 2010.
[63] The Crown’s written submissions regarding Dr. Klassen’s position on necessary treatment are accurate, and I have adopted them below:
Overall Suggestions for Treatment
Dr. KLASSEN ultimately offers that in addition to the development of internals [sic] controls, GEORGE would need external controls to manage his behaviour. He suggests significant institutional programming in anger management and substance abuse in his report, and in testimony also acknowledged perhaps criminal thinking errors as well. He notes such programming is only available through CSC.
He noted in his report that each area required at least 200 hours or so of treatment time and that they would never be done simultaneously, but sequentially over time so as to not overwhelm the offender.
Dr. KLASSEN acknowledged that although GEORGE needs this treatment to reduce his risk he presents as fatigued with the programming and of course testified that GEORGE currently is not willing to do it.
Dr. KLASSEN notes there is no pharmacotherapy for GEORGE’s stimulant use disorder and the CSC programming is the only treatment available to GEORGE.
GEORGE also needs treatment for his Delusional Disorder. This includes Cognitive Behavioural Therapy, which is only available at the Regional Treatment Centers, and which GEORGE is refusing to do. It also would include receiving his anti-psychotic medication by long-acting intramuscular injection, which is something GEORGE also is refusing to do.
Should GEORGE ever return to the community, Dr. KLASSEN testified he should be ordered to reside in a CCC or CBRF and his risk would not be assumable were he not living in one.
GEORGE would have to stay away from people with criminal records, drugs and report any intimate relationships he enters.
Conclusion
- Dr. KLASSEN’s view of the treatability and manageability of GEORGE was best summed up in response to a question from the Court when Dr. KLASSEN affirmed that the only real hope he had that GEORGE would become manageable in the community was if age related decline mitigated his risk sufficiently.
Criminal Records
[64] Dennis George’s criminal record spans 32 years (1987-2019). There are 26 convictions in total, with 11 violent offences including:
(a) Assault (x 2)
(b) Assault with a Weapon (x 2)
(c) Assault Causing Bodily Harm
(d) Criminal Harassment
(e) Robbery (x 3)
(f) Manslaughter
(g) Aggravated Assault
(Detailed record attached as APPENDIX “A”)
[65] The robbery convictions noted above include two bank robberies using a firearm.
[66] Two of the assault convictions and the manslaughter occurred while in federal custody. As to the manslaughter, on January 14, 2008, George was arrested for being unlawfully at large for failing to attend on an intermittent sentence. On January 21, 2008, he contacted the O.P.P. Pen Squad and confessed to killing an inmate at Joyceville Penitentiary in 2005. He had not been charged with that offence to that point. He entered a guilty plea to manslaughter on May 30, 2008 and was sentenced to six years. His victim was a convicted sex offender. George voiced his hate for those who offended sexually and of note advised recently that he would commit this offence again.
[67] The summary below, taken from the Crown’s written submissions, accurately presents a startling image of the last 30 years of Dennis George’s life:
Between March 23, 1992 and the date these submissions are filed on December 8, 2021, there are 10,852 days, or 29 years and 8 months and 15 days. Mr. GEORGE will have spent 10,114 of those days in custody or roughly 27 years, 8 months, and 7 days. He has managed to spend only, 738 days, or 2 years and 8 days in the community in that time. Some of that time was while he was unlawfully at large from sentences.
The longest period of time Mr. GEORGE has managed to stay in the community was a period of 249 days from May 29, 2014 – February 1, 2015.
The average amount of time Mr. GEORGE has been able to stay in the community between incarcerations has been approximately 53 days.
Corrections Records
[68] As might be expected, there is a small mountain of Corrections and Parole Board Records related to Dennis George.
[69] Below, I will note the content of only a few of those records, which run over the span of almost 30 years. However, these small glimpses over time accurately illustrate the complete lack of any positive steps toward rehabilitation or reintegration into the community:
In a May 22, 1992 Penitentiary Placement Report it is noted:
a. GEORGE was admitting guilt for the robbery with a firearm but claiming no recollection of the event. He said on the suggestion of friends he consumed a handful of valium and “injected cocaine”.
b. GEORGE stated he shot into the ceiling because of the influence of U.S. television.
c. GEORGE could not recall any accomplices.
d. Substance abuse is noted to be a potential long-term problem.
In a March 12, 2003 Assessment for Decision it is noted:
a. GEORGE was being recommended for a return to maximum security.
b. GEORGE was placed in segregation in February 2003 for assaulting an inmate.
c. GEORGE was returned to segregation in March 2003 for trying to stab another inmate.
d. GEORGE was seen in February 2003 by psychiatry who was recommending he be sent back to RTC “ASAP for diagnosis, control his conceded thoughts, vulnerable to psychotogenic effects and behavioural dysfunction of drug abuse”.
In an April 11, 2006 National Parole Board Decision Sheet it is noted that:
a. GEORGE should be held until his warrant expiry as it is likely he will commit an offence causing serious harm to a person before the expiration of his sentence.
b. GEORGE had a pattern of assaulting sex offenders.
c. GEORGE is ahigh risk for future violence.
d. GEORGE was not willing to discuss his violent delusions with the NPB.
e. Anti-social peers and drug use remain a significant concern.
f. GEORGE demonstrated indifference towards his past behaviour and future.
In a March 30, 2007 National Parole Board Decision Sheet it is noted that:
a. GEORGE voluntarily requested segregation in July 2006 as he felt he was going to act out violently towards other inmates.
b. GEORGE refused a urinalysis test in October 2006.
c. GEORGE’s Case Management Team did not believe that there was any community programming that could manage his risk including residency.
d. GEORGE remains a high risk to reoffend violently.
e. GEORGE presented as likely to commit an offence involving serious harm prior to his warrant expiry date and as such he would be held until that time.
In an August 25, 2010 National Parole Board Decision Sheet it is noted:
a. GEORGE advised the NPB that he confessed to the manslaughter as he wanted ot [sic] return to the structure of prison and that he was not able to cope with the pressures in the community.
b. GEORGE advised he did not want to be released, wanted to stay in prisone [sic] and wanted to stay in maximum security where the pressure was less.
c. GEORGE understood that by staying in maximums security he would not have access to some of his essential programming.
d. GEORGE indicated that he may decide to apply to go back to medium security or a camp in a year or so.
e. Any form of parole is denied.
In a January 28, 2014 Warrant Expiry Package it is noted that:
a. The Parole Board has consistently noted the fact that GEORGE is a high risk to reoffend violently and that there is no community structure capable of mitigating his risk.
b. GEORGE is a high risk for violent reoffending and has not taken any programs or other interventions to address his risk factors or which decrease this risk.
c. GEORGE has no relapse prevention plan or significant insight into his crime cycle.
d. GEORGE does not have a reliable release plan and file information suggests continued drug use while incarcerated.
Gladue Report
[70] A Gladue Report was prepared by Rachel Read-Baxter to assist in this sentencing process. The Report is dated April 1, 2020 and is a detailed look at Dennis George’s Indigenous background, his family connection, his struggles, and alternatives to incarceration.
[71] George’s Indigenous heritage comes from his father’s side of the family. Carl George was from the Chippewas of Kettle and Stony Point First Nation. Dennis George is a registered member of that First Nation, although he does not know his clan and has no traditional name.
[72] George’s paternal grandfather was a registered band member and fought in World War II. His paternal grandmother, Madeline George, attended the Mohawk Institute Indian Residential School in Brantford. Madeline George developed significant mental health issues later in life.
[73] Dennis George has little knowledge of his family’s history, particularly as it relates to residential schools. It is clear, however, that the effects of residential schools can be intergenerational, nonetheless. It seems clear that his first real connection to his Indigenous roots and customs came while in various penitentiary settings.
[74] An unfortunate accident left Carl George paralyzed from the chest down at age 28. At the time, Dennis George was 10 years old. Dennis George’s mother founded a new relationship with a man who drank heavily and abused Dennis, his brother, and his mother.
[75] George’s father, although wheelchair bound, became a drug dealer and Dennis quit school to care for him and assist in his illegal business. Dennis George was committed to his father’s lifestyle and drank and used drugs at a young age. He smoked marijuana at age 9; used “speed” at age 15; was addicted to heroin at Collins Bay Penitentiary and has been addicted to methamphetamine since the first time he used it.
[76] George has a grade 8 education and only learned to read and write in Collins Bay Penitentiary while in his twenties. According to the content of the Report, this scenario is far from uncommon in Dennis George’s generation.
[77] Dennis George was diagnosed with schizophrenia in his early twenties (a diagnosis inconsistent with the opinion of Dr. Klassen discussed here). He has struggled with his mental health all his life. He described himself to Read-Baxter as a lonely person. When he is released from custody, and considering he has burned all his bridges with his family, he seeks out drug houses to get high and to be with people.
[78] George was married once while in the penitentiary and later divorced. He has a daughter and a step-daughter. He has no contact with either. His family concede his institutionalization and describe him as most comfortable in jail.
[79] Read-Baxter believes that there have never been any meaningful efforts to rehabilitate Dennis George or help him cope with his issues related to his family, substance, and physical abuse. The author offers various Indigenous programming centres, both in and out of custody. She has provided a list of provincial and federal healing centres and s. 81 Healing Lodges.
Positions of the Parties
The Crown
[80] Consistent with the language of s. 753, the Crown maintains that beyond a reasonable doubt, George constitutes a threat to the life, safety or physical or mental well-being of other persons.
[81] The Crown maintains that it has presented evidence sufficient to establish conduct of the offender satisfying the criteria in s. 753(a)(i)-(iii). That evidence emanates from the predicate offence (conceded to be a serious personal injury offence); the offender’s antecedents and unremitting violent record; his failure under community supervision and treatment and the opinion of the assessing psychiatrist.
[82] The Crown’s primary position is that there is no reasonable expectation that any sentence other than a Dangerous Offender designation, coupled with an indeterminate sentence, will adequately protect the public.
The Defence
[83] The defence maintains the Crown has not met its onus as to the Dangerous Offender designation and that, alternatively, if it did, the least restrictive sentence available is appropriate. (Section 753(4.1).
[84] As to s. 753(1)(a)(i), the defence maintains that many of George’s prior offences were committed for financial gain, and therefore are not part of a pattern of repetitive offences consistent with the predicate offence. Further, that consistent with Dr. Klassen’s opinion, there has been a transition from offences consistent with the criminal subculture to offences of addiction and dependency.
[85] The defence argues with respect to s. 753(1)(a)(ii) that the Crown has been unable to prove repetitive aggressive behaviour, exhibiting a substantial degree of indifference as to its consequences. In fact, it is suggested that the behaviour has shown a degree of restraint and cannot be seen as substantially intractable.
[86] Finally, as to s. 753(1)(a)(iii), the predicate offence does not cross the threshold into brutality in that it was a single incident of short duration, George was extremely intoxicated, and there was no torture or degradation.
[87] The defence points to the evidence of age related decline discussed by Dr. Klassen, along with the CSC programming and management suggested. It further states that there is an untapped body of programming, including the Indigenous Integrated Correction Program Model (IICPM), that may very well assist George in the future.
[88] The defence repeats the comments of Dr. Klassen that George is essentially untreated at this point and that the new Indigenous Programming through CSC should be seen as having a potentially positive impact on his future risk management.
[89] The conclusion of the defence is that a determinate sentence of 12 years is fit, or alternatively, a 14 year sentence, coupled with a long-term supervision order of ten years, which takes the offender into his sixties, when he can be adequately controlled.
Analysis
[90] Section 753 of the Criminal Code of Canada sets out four bases upon which a person may be designated a dangerous offender. For the purposes of this decision, I need to consider only the three contained in subsection (1)(a). These, to some extent, are overlapping pathways. The Court need only find one pathway to be established then it must declare the offender a dangerous offender.
[91] I reproduce the relevant sections below:
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, or
(iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; …
The Two-Stage Process
[92] Dangerous offender legislation has a long history in Canada. The modern legislation was enacted in the Criminal Code in 1977. It was revised in August 1997 and then again in July 2008.
[93] Because of the serious nature of a dangerous offender sentencing, and because of the body of information that is presented on the life of the offender, written sentencing decisions in this area are lengthy and numerous.
[94] Two more recent decisions have proven to be very helpful in this particular task. On December 17, 2017 the Supreme Court of Canada in R. v. Boutilier, 2017 SCC 64, (Boutilier), released its decision upholding the constitutionality of s. 753 (4.1). Beyond that finding, the Court provided instructions on the two-stage analysis to be undertaken by the sentencing judge in an application to declare an offender dangerous and on the search for an appropriate penalty.
[95] In R. v. Spilman, 2018 ONCA 551, (Spilman), Watt J.A. considered the sentencing principles in light of Boutilier, particularly as they related to a composite sentence of a determinate term followed by a Long-Term Supervision Order (s. 758(4)(b)).
[96] The dangerous offender sentence is a two-stage process. The designation stage concerns the criteria set out in s. 753(1) (Boutilier, para. 14). The penalty stage relates to the considerations in s. 753(4) and (4.1) (Boutilier, para. 15).
[97] I recognize that I must consider whether the criminal conduct of the offender is intractable. In Boutilier, the Court noted that at the designation stage, the concern was focussed on the future threat while in the penalty phase, the issue of intractability focussed on sentencing options to address that threat. (Boutilier, para. 30).
The Designation Stage
[98] At this stage, the Crown must prove beyond a reasonable doubt that the predicate or index offence is a serious personal injury offence as defined by s. 752 and that the offender represents a threat to the life, safety or physical or mental well-being of other persons on the basis of establishing the kind of criminal behaviour captured by 753(1)(a) or (b), (Spilman).
[99] The conviction in the predicate offence of aggravated assault is a personal injury offence as defined by s. 752(a).
[100] In considering whether conduct is intractable at this designation phase, it is necessary to look at the totality of the offender’s criminal history and his potential for further risk.
An offender’s future treatment prospects are, and have always been, a relevant consideration at the designation stage.
(Boutilier, para. 42).
[101] At para. 46 of Boutilier, Justice Côté provided this view of the test at the designation phase as a framework for the criminal behaviour considered in s. 753(1) or (b).
[46] In sum, a finding of dangerousness has always required that the Crown demonstrate, beyond a reasonable doubt, a high likelihood of harmful recidivism and the intractability of the violent pattern of conduct. A prospective assessment of dangerousness ensures that only offenders who pose a tremendous future risk are designated as dangerous and face the possibility of being sentenced to an indeterminate detention. This necessarily involves the consideration of future treatment prospects. …
[102] The Crown urges me to find George a dangerous offender on the basis of s. 753(1)(a)(i)(ii) and (iii). I agree that the criteria in each of those three subsections have been proven beyond a reasonable doubt.
[103] At this designation stage, I am to consider all retrospective and prospective evidence related to the continuing nature of George’s risk in the community and his future treatment prospects. (Boutilier, para. 43).
[104] A summary of this retrospective and prospective evidence is contained in the factum of the Crown at para. 251 and is largely reproduced by me below. I accept its accuracy.
- Looked at on a totality of the evidence Mr. GEORGE presents as intractable at the designation stage based on:
a. Mr. GEORGE suffers from several mental health disorders that contribute to his dangerousness including his Antisocial Personality Disorder, his Delusional Disorder and his Substance Abuse Disorder respecting specifically, but not exclusively, stimulants.
b. Expert evidence respecting actuarial and structured assessments has established that there will be “significant difficulties” in the manageability and treatability of GEORGE.
c. Delusional Disorder, it is noted, is difficult to treat and does not respond as well to anti-psychotic medications as schizophrenia. Cognitive behavioural therapy for it is only available at the RTC and GEORGE has and continues to refuse it. Notwithstanding medication GEORGE continues to claim to hear voices although he refuses to talk about his delusions, further frustrating any attempts to treat it.
d. Antisocial Personality Disorder is chronic, incurable and difficult to treat. GEORGE continues to show all of the elements of the disorder that have contributed to his offending behaviour including failure to conform to social norms with respect to lawful behaviours; impulsivity; irritability and aggressiveness; reckless disregard for the safety of self or others; consistent irresponsibility; and lack of remorse. George is refusing programming that would attempt to address this.
e. Substance Abuse Disorder for stimulants has no pharmalogical treatment. One area of programming GEORGE had considerable exposure to was for substance abuse. Notwithstanding this GEORGE continues to suffer from addictions including using stimulants in custody. GEORGE currently feels he has no substance abuse problem and is refusing programming for it.
f. GEORGE has been exposed to CSC programming and repeatedly described as having satisfactory or good performance, but then appears to learn nothing from it. GEORGE himself has commented it “goes in one ear and out the other”. He has been described by Dr. Klassen as “treatment fatigued”. As stated above GEORGE is refusing treatment which is a position he has largely taken since 2010.
g. GEORGE has been considered a high risk to reoffend violently for the last 25 years and nothing has mitigated that. Dr. Klassen testified that other than a hope for age related decline, nothing in his opinion was likely to.
h. Age related decline itself is a general rule and Dr. Klassen agreed that there was nothing specific to Mr. GEORGE to show that age alone would have him successfully overcome his violent behaviour. Further, to the extent that age related decline could mitigate some of GEROGE’s risk it could be thwarted by his mental health issues, particularly if he fails to take his medications. Additionally any age related decline could be counteracted by GEORGE’s continued use of energizing drugs like stimulants. Of note, GEORGE has recently used non-prescribed stimulants in custody and became delusional, and he is prescribed one for ADHD which he takes regularly. More will be said about this issue later.
i. Since his first federal sentence in 1992 GEORGE has been involved in serious violent behaviour regularly both in and out of custody. While his in-custody behaviour has settled somewhat, it only looks good when compared to the violent pace GEORGE set during his initial period of federal incarceration. Even while on remand for these charges GEORGE has been involved in a number of violent incidents in-custody. Further, nothing suggests that any moderation to GEORGE’s in-custody behaviour in a highly controlled setting has or will translate to GEORGE’s out of custody behaviour which remains consistently mired in a lack of structure, negative peer associations, substance abuse and violence. GEORGE committed the current predicate offence a mere 3 months after being released from jail.
Section 753(1)(a)(i)
[105] Dennis George has demonstrated his violence since the 1990’s, that violence forced upon his victims, both in and out of custody. His disclosures to Dr. Klassen make it clear that there is a body of criminal conduct, particularly break and enters and robberies, that were never charged.
[106] Three of his violent convictions were committed while in custody, including the taking of the life of a prisoner, simply because George felt he was a sex offender. Many of the violent offences were committed while high on drugs, currently that drug being methamphetamine. The violent predicate offence came after days of bingeing on that drug. George continues to decline treatment and views his drug dependency as something he can control on his own.
[107] The 2007 criminal harassment conviction came at a time when George was using cocaine. Both the 2015 assault and the 2016 assault with a weapon came while he was using methamphetamine and developed feelings of jealousy. The 2008 manslaughter was committed while he was high on heroin.
[108] On top of the substance problem is the impact of his antisocial personality disorder and delusional disorder.
[109] I find beyond a reasonable doubt that Dennis George demonstrates a pattern of repetitive behaviour of which the predicate offence is a part. The pattern evidences his inability to restrain his behaviour. There is a likelihood that he will be unable to restrain his behaviour in the future and that his lack of restraint will lead to death, injury, or severe psychological damage. My finding of future likelihood is consistent with the results of the risk assessment tools utilized by Dr. Klassen, which I referenced earlier.
Section 753(1)(a)(ii)
[110] The adult life of Dennis George shows a clear pattern of persistent aggressive behaviour. His substance use and then his impulsive violent behaviour is repetitive or/and persistent and constantly repeating. (R. v. Yanishewski (1996) 1996 CanLII 4916 (SK CA), 104 C.C.C. (3d) 512 (Sask. C.A.)). One only needs to look at the short period of time George has been able to remain in the community over the last 30 years, to recognize the persistent nature of his aggression. The beating death of the inmate and the ten hammer holes in the crushed skull of Courtney Melhuish, are two examples of what is clearly an indifference respecting the foreseeable consequences of his behaviour. George told Dr. Klassen that as to the killing of the prisoner he perceived to be a sex offender, he would “do it again”. There is no doubt that illegal drugs fuel his indifference and there is no reason to believe that illegal drugs will not be part of George’s future. Past efforts at treatment have been abject failures. He has no real interest in treatment moving forward.
[111] The criteria captured by s. 753(1)(a)(ii) has been proven beyond a reasonable doubt.
Section 753(1)(a)(iii)
[112] Dennis George’s violent assault upon Courtney Melhuish was of a brutal nature as the term is used in this subsection. It was an unprovoked attack with a weapon. The repeated use of a hammer to the skull of the victim, even after she was unconscious. The fact that Ms. Melhuish survived is extraordinary. At one point, George left the victim to pursue a witness and then returned to strike her again. The physical and psychological damage has been documented in early portions of this decision. His conduct was “coarse, savage and cruel”. (R. v. Langevin, 1984 CanLII 1914 (ON CA), [1984] O.J. No. 3159 (C.A.)).
[113] It is hard to dispel from the mind’s eye the evidence of Courtney haltingly reading her victim impact statement while a helmet continued to cover the holes in her skull.
[114] For the sake of repetition and considering this was Dennis George’s latest offence in the community, the psychiatric diagnoses, the substance abuse, and the repetitive and persistent violence lead inexorably to the conclusion that his future behaviour will not be inhibited by normal standards of restraint.
Penalty Stage
[115] On the totality of the evidence I have found Dennis George is a high risk to commit further violent offences. The violent pattern is intractable. There is no evidence of treatability at this phase so compelling as to displace this finding. (Boutilier, para. 45). Dennis George is clearly unable to control his personal characteristics which drive his criminal conduct.
[116] Having found Dennis George to be a dangerous offender, my sentencing is now directed by s. 753(4) and (4.1):
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.
[117] Paragraph 30 of Spilman discusses the exercise of my sentencing discretion and the tests to be imposed in my analysis:
[30] Section 753(4.1) provides guidance on how hearing judges can properly exercise their discretion, in accordance with the applicable objectives and principles of sentencing, to impose the appropriate sentence to manage the established threat that the offender poses to society. The provision requires the judge to examine the evidence adduced at the hearing to determine 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 a serious personal injury offence. The hearing judge must first exhaust the less coercive sentencing options to address this risk of recidivism before imposing a sentence of indeterminate detention in a penitentiary: Boutilier, at para. 69.
[118] In my consideration of an appropriate penalty, I must continue to apply the principles and guidelines in s. 718 – 718.2 of Part XXIII of the Criminal Code of Canada (Boutilier para. 53; Spilman para 28).
[119] But this is a special sentencing regime. As a result, I am not restricted to imposing a term of imprisonment that would be appropriate on conviction of the predicate offences in the absence of a dangerous offender designation. (Spilman para. 32).
[120] In the past, it has been argued that the penalty considerations in s. 753 cannot accord with the statutory purposes and principles of sentencing in s. 718-718.2 of the Criminal Code.
[121] Boutilier put that argument to rest. I have set out paras. 56, 62 and 63 of Boutilier below.
[56] Mr. Boutilier contends that, by referring solely to the objective of public protection, the wording of s. 753(4.1) excludes other sentencing objectives and principles from the sentencing judge’s discretion. In my view, a fair reading of s. 753(4.1) does not result in the exclusion of these principles. Parliament is entitled to decide that protection of the public is an enhanced sentencing objective for individuals who have been designated as dangerous. This does not mean that this objective operates to the exclusion of all others. It is permissible for Parliament to guide the courts to emphasize certain sentencing principles in certain circumstances without curtailing their ability to look at the whole picture. Emphasis on the public safety component is consistent with the fact that public protection is the general purpose of Part XXIV of the Code: Steele, at para. 27. Further, because the enhanced objective of public safety parallels the justification for imposing an indeterminate detention, such emphasis is also consistent with the principles of sentencing generally.
[62] Further, nothing in the wording of s. 753(4.1) 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.
[63] For all these reasons, an 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. Mr. Boutilier’s suggestion to the contrary has been repeatedly rejected by this Court in relation to any of the Criminal Code’s sentencing regimes and, in effect, seeks to read a prohibition into s. 753(4.1) where none exists.
[122] In considering the appropriate penalty in the context of s. 753(4.1), I must consider Dennis George’s Indigenous status. The impact of residential schools has been felt by George’s paternal relatives. Sadly, his knowledge of his ancestral practices and traditions came only after incarceration. George sought only to embrace the available Indigenous programming in a superficial way and there is simply no evidence Indigenous programming as part of a lesser sanction will assist in the protection of the public. The Saskatchewan Court of Appeal in R. v. Standingwater, 2013 SKCA 78 at para. 49 said this:
[49] It is of passing note that the Court handed down its reasons in R. v. Ipeelee over two years after the trial judge’s decision in this case. Regardless, in my opinion, the trial judge correctly summarised the law. By the clear language of ss. 753.1(1)(b) and (c), the substantial risk an offender poses to the community and the possibility of eventual control of that risk in the community are the foremost considerations when determining whether to designate an offender a long-term offender, as opposed to a dangerous offender. The paramount sentencing objective in this determination is obviously the protection of society. As such, in the context of Part XXIV proceedings, the judicial discretion to determine an appropriate sentence is far more limited than it is in a sentencing under Part XXIII of the Criminal Code. Nevertheless, the Gladue factors remain relevant and the sentencing principle advanced under s. 718.2(e) of the Criminal Code must be addressed; but, the sentencing court must do so within the context of the paramount sentencing objective under Part XXIV, that being, again, the protection of society. It remains a fact, however, that under Part XXIV proceedings there is often simply little alternative to imprisonment.
[123] In the recent decision of R. v. Straub, 2022 ONCA 47 at paras. 61-65, set out below, Justice Watt considered the framework for reaching an appropriate sentence for a dangerous offender:
[61] The framework a sentencing judge should apply in exercising their discretion under s. 753(4.1) to determine the fittest sentence to impose upon a dangerous offender requires that they first exhaust both less intrusive sentencing options. This is because the proper exercise of discretion under s. 753(4) requires that the judge impose the least intrusive sentence required to reduce the public threat posed by the offender to the level statutorily required: Boutilier, at paras. 60, 70; R. v. Awasis, 2020 BCCA 23, 385 C.C.C. (3d) 369, at para. 72, leave to appeal refused, [2020] S.C.C.A. No. 225. This is also because s. 753(4.1) does not impose an onus, create a rebuttable presumption, or direct mandatory sentencing. An indeterminate sentence is but one of the sentencing options available for dangerous offenders: Awasis, at paras. 72, 73; Boutilier, at para. 58.
[62] Section 753(4.1) mandates imposition of an indeterminate sentence unless there is a reasonable expectation that a lesser sentence will adequately protect the public against the dangerous offender’s violent recidivism. The standard to be applied to the evidence adduced at the hearing is whether there is a reasonable expectation that a lesser measure will adequately protect the public against the offender’s violent recidivism. The standard is reasonable expectation, not reasonable possibility. The term “reasonable expectation” suggests a “likelihood”, “a belief that something would happen”, or “a confident belief, for good and sufficient reasons”: Pelly, at para. 35; R. v. D.J.S., 2015 BCCA 111, at para. 30, leave to appeal refused, [2015] S.C.C.A. No. 194; R. v. Sanderson, 2018 MBCA 63, at para. 20; Awasis, at para. 73. The standard “reasonable expectation” is more stringent than “reasonable possibility”: R. v. Groves, 2020 ONCA 86, at para. 15.
[63] Treatability is a relevant factor at the penalty stage of dangerous offender proceedings. But evidence of treatability must extend beyond speculative hope about successful treatment. The evidence must give some indication that the offender can be treated within an ascertainable time: Awasis, at para. 73, citing, 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. See also, Boutilier, at para. 45.
[64] Manageability of a dangerous offender’s behaviour is also a factor to be considered at the penalty stage. On this issue, the following is relevant: evidence that the offender avoided treatment, failed to respond to or terminated treatment, breached court orders, lacked motivation, continued to be involved in high-risk conduct, had a serious personality disorder, and was a high risk to engage in violent recidivism. See R. v. K.P., 2020 ONCA 534, 152 O.R. (3d) 145, at para. 13, citing, R. v. Radcliffe, 2017 ONCA 176, at paras. 64-65, leave to appeal refused, [2017] S.C.C.A. No. 294. The moral culpability of a dangerous offender also remains relevant at the penalty stage of the proceedings: Pelly, at para. 49; Boutilier, at para. 63.
[65] The nature and duration of a dangerous offender’s prior conduct may provide cogent evidence of how that offender would act in the future, given the opportunity to do so: Groves, at para. 6. Likewise, the manageability of the offender under supervision in the community.
[124] I have considered whether a lesser penalty of a determinate sentence or a determinate sentence coupled with long-term supervision might create a reasonable expectation of adequate public protection as contemplated by s. 753(4.1). I have concluded that this would amount to a “mere hope” or a “reasonable possibility” built on generous optimism. (R. v. Solano, 2014 ONCA 185, [2014] O.J. No. 1118 (C.A.) para. 15).
[125] Dennis George has historically shown little interest in programming and rehabilitation. As a result, it has been of no assistance. His lack of commitment to treatment persists. Dr. Klassen, in both his evidence and his report, stated that the only real hope in controlling George’s risk to the public came with his age. Relying upon the vagaries of the “burnout theory”, to age him out of his violent conduct.
[126] Dr. Klassen admitted that this aging effect was speculative and that George’s diagnosis and stimulant use added a significant wrinkle to any prediction.
[127] As the Court of Appeal directed in R. v. Poutsoungas, 1989 CanLII 7104 (ON CA), [1989] O.J. No. 1033 at p. 2:
Dr. McDonald testified that statistically the tendency to the kind of violence exhibited by this accused tends to lessen noticeably once a person gets well into his thirties. Thus once this man is into his thirties there is good reason to anticipate that he will be less dangerous than he is now.
It may be noted that this evidence, in its own terms, refers to the tendency to violence to lessen noticeably--not to any cure. Indeed, Dr. McDonald's evidence was that the process does not so much involve a change in personal disposition as a change in energy level resulting in fewer offences. If this theory did apply to the accused it would merely indicate, at best, that the serious life-threatening offences would be less frequent. Further, it is a large step to go from a statistical tendency to a conclusion that this offender's future will follow such a course. Also, if the young person "burn-out" theory standing alone were a valid basis for avoiding an indeterminate term, such a sentence would have very little scope for operation.
[128] In coming to the sentence I am about to prescribe, I take into account Dennis George’s comments to me that he is sorry for the tragic conclusion of his latest assault and that it damaged two families. Comments like this have been uttered in the past but have not affected the trajectory of his criminal conduct.
Conclusion
[129] As noted above, I have found that the Crown has satisfied its onus with respect to the designation of Dennis George as a dangerous offender pursuant to s. 753(1)(a)(i)(ii) and (iii). I have considered the terms of s. 753(4.1). There is no reasonable expectation that a sentence as considered by s. 753(4)(b) or (c) will adequately protect the public from the commission of a murder or a serious personal injury offence. As a result, I sentence Dennis George to a sentence of detention in a penitentiary for an indeterminate period.
[130] The following additional orders are made:
(a) A lifetime weapons prohibition pursuant to s. 109 of the Criminal Code.
(b) Pursuant to s. 487.051 of the Criminal Code, a primary DNA identification order.
(c) An order in an approved form provided by the Crown directing that all expert reports and testimony along with my reasons for sentence be forwarded to Correctional Services Canada.
Regional Senior Justice B. G. Thomas
Released: March 24, 2022.
Appendix “A”
Date
Charge(s)
Conviction
1986-12-23
Assault
Probation for one year
1987-05-08
Theft under $1000.00
30 days open custody conc to sent even date. Probation 2 years
1987-05-08
Assault with a weapon
3 months open custody plus probation 2 years
1989-05-09
Break & enter-dwelling house
4 months jail
1989-05-09
Theft under $1000.00
30 days jail – consecutive
1990-02-16
Fail to be fingerprinted
15 days jail concurrent
1990-02-16
Break & enter & commit theft
9 months jail consecutive to sentence now serving
1990-02-16
Possession of stolen property under $1000.00
30 days concurrent
1992-05-04
Assault
1 day jail
1992-05-04
Armed robbery
5 years jail prohibit firearms for life
1992-05-04
Use firearm
1 year consecutive
1994-03-03
Robbery/theft with violence or threats of violence
21 months consecutive to time served
1998-03-10
Armed robbery sec. 343(D) CC
(1) 7 yr(s) cons. to sentence serving & prohibited from firearms, ammunition or explosives life & pre-sentence custody 91 day(s) (*1)
2007-12-24
Criminal harassment by repeated communication sec. 264 (2)(B) CC
(1) 90 day(s) intermittent & probation 2 (yr)s & pre-sentence custody 44 day(s) (*S)
2008-02-05
Unlawfully at large sec. 145 (1)(B) CC
(1) 12 day(s) cons. to sentence serving & pre-sentence custody 9 day(s) (*S)
2008
Manslaughter
6 years – pre-sentence custody 129 days
2015-10-08
Assault (spousal) sec. 266 CC
(1) 30 day(s) & probation 12 mo(s) & surcharge $100.00 & pre-sentence custody 16 day(s) (*S)
2016
Assault with a weapon
273 days pre-sentence custody 92 days
2017-04-13
Fail to comply with recognizance sec. 145(3) CC
(1) 1 day(s) (time served) & surcharge $100.00 & pre-sentence custody 10 day(s) (*S)
2019
Aggravated assault
Predicate offence
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
DENNIS GEORGE
REASONS FOR JUDGMENT
Thomas, RSJ.
Released: March 24, 2022.
[^123]: When asked in cross-examination about how long this may be, Dr. KLASSEN could only say that relying on the general theory of age related decline to reduce risk, he thought GEORGE’s risk could be moderate sometime by the time he is 60. He couldn’t say at what age prior to 60, if at all GEORGE’s risk would moderate presuming the general theory holds true for GEORGE.