REASONS FOR DECISION ON DANGEROUS OFFENDER APPLICATION

Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way.

Overview

[1] On November 9, 2020, I convicted Ibrahim Mohamed of the sexual assault of S.S., with another person, namely his brother Hassan Mohamed, contrary to s. 272(1)(d) of the Criminal Code, R.S.C. 1985, c. C-46; choking Ms. S. to overcome resistance to enable him to sexually assault her, contrary to s. 246(a) of the Criminal Code; forcibly confining Ms. S., contrary to s. 279(1)(a) of the Criminal Code; uttering a threat to cause death to Ms. S., contrary to s. 264.1(1)(a) of the Criminal Code; and assaulting Ms. S., contrary to s. 266 of the Criminal Code. These offences all occurred inside Ms. S.’s two-bedroom apartment on the xx floor of xxxxx, in the early morning hours of Saturday, November 3, 2018. I gave detailed Reasons for Judgement: see R. v. Mohamed, 2020 ONSC 6821 (“Judgment”).

[2] Before the sentencing hearing of Mr. Mohamed, the Crown brought an application pursuant to s. 752.1(1) of the Criminal Code for an order for an in-custody assessment of Mr. Mohamed by a forensic psychiatrist for the purpose of determining whether the Crown would bring an application to have him declared as a dangerous or a long-term offender under Part XXIV of the Criminal Code. I granted that application on January 14, 2021 and remanded Mr. Mohamed for an assessment by a forensic psychiatrist.

[3] The assessment was completed by Dr. Brad Booth and the Crown filed his lengthy Psychiatric Risk Assessment Report dated May 15, 2021 (“Assessment Report”) with this Court. Given the opinions expressed by Dr. Booth, with the consent of Deputy Attorney General for the Province of Ontario, the Crown now seeks an order on behalf of the Attorney General of Ontario, pursuant to s. 753(1)(a) of the Criminal Code, declaring Mr. Mohamed to be a dangerous offender and requests that this Court impose a sentence of an indeterminate period in a penitentiary.

The Positions of Counsel on the Issues

[4] Following the conclusion of the hearing of evidence on this application, both counsel submitted very helpful written submissions to this Court that served to narrow the issues before me and provide assistance on the difficult issues still to be determined. They also attended to make oral submissions and address my questions.

[5] As a prerequisite to a finding of dangerousness, there must also be a finding that the offender has committed a "serious personal injury offence", pursuant to s. 752 of the Criminal Code. There is no dispute that Mr. Mohamed was convicted of three "serious personal injury offences" as defined under s. 752 of the Criminal Code: gang sexual assault (s.272(1)(d)), choking to overcome resistance (s.246(a)) and forcible confinement (s.279(1)(a)). Both counsel also agree that the Crown cannot benefit from the presumption set out in s. 753(1.1) of the Criminal Code.

[6] The next question is whether this Court should declare Mr. Mohamed to be a dangerous offender on the basis that he constitutes a threat to the life, safety, or physical or mental well-being of other persons based on evidence establishing one of the three routes to that designation set out in s. 753(1)(a) of the Criminal Code.

[7] It is the position of Mr. Wilson, counsel for the Crown, that the evidence heard on this application establishes beyond a reasonable doubt that Mr. Mohamed meets the statutory criteria for being declared a dangerous offender through all three routes to establishing "dangerousness" listed in ss. 753(1)(a)(i), (ii), and (iii). These routes are disjunctive, and proof of the criteria for any single route is sufficient. Mr. Bryant, counsel for Mr. Mohamed, concedes that the Crown has proven that Mr. Mohamed meets the criteria of s. 753(1)(a)(ii) (the “Second Route”).

[8] As a result, there is no dispute between counsel that, pursuant to s. 753(1)(a) of the Criminal Code, I “shall” find Mr. Mohamed to be a dangerous offender. The sole issue on this application is therefore what sentence should be imposed pursuant to s. 753(4) of the Criminal Code. Mr. Wilson seeks an order detaining Mr. Mohamed in a penitentiary for an indeterminate period or, in the alternative, sentencing him to a determinate period of custody in a penitentiary, followed by a period of supervision on a long-term supervision order (“LTSO”) for a period of 10 years. It is Mr. Bryant’s position that Mr. Mohamed should be sentenced to a determinate sentence to be followed by a LTSO pursuant to s. 753(4)(b) of the Criminal Code.

[9] It is agreed that if I accept Mr. Bryant’s position, counsel will make further submissions on the length of the determined sentence and the terms of the LTSO.

The Evidence at the Dangerous Offender Hearing

[10] The Crown filed a voluminous Application Record (“Record”) on consent. The Record includes Dr. Booth’s Assessment Report, Mr. Mohamed’s criminal record, copies of the indictments/informations pertaining to his previous convictions, Reasons for Sentence with respect to previous convictions, where available, and records pertaining to Mr. Mohamed produced by the Correctional Service of Canada (“CSC”), a dated Pre-Sentence Report, and two prior Psychological-Psychiatric Assessment Reports.

[11] The Crown also relies on the evidence heard at the trial of Mr. Mohamed before this Court and called two witnesses – Dr. Booth and Natasha Jaffer, from CSC, currently the Parole Officer Supervisor at the Keele Parole Office in Toronto. During Ms. Jaffer’s cross-examination, Mr. Bryant introduced a report from Public Safety Canada, entitled: “Corrections and Conditional Release Statistics – 2019”.

[12] The Crown did not provide a Victim Impact Statement (“VIS”) from Ms. S. but I have no doubt of the significant and long-term adverse effects the horrific and repeated sexual assaults and death threats had on her physically and more importantly psychologically.

[13] Dr. Booth was qualified to give expert opinion evidence in the field of forensic psychiatry with a focus on psychiatric diagnosis for risk assessment and treatment. He is a very experienced, highly qualified forensic psychiatrist. A regular component of Dr. Booth’s practice is the assessment of the risk for potential harm posed by his patients. He is routinely called upon by the courts to assess offenders in relation to issues of fitness and criminal responsibility, and to conduct assessments pursuant to section 752.1 of the Criminal Code. Dr. Booth is a leader in his field and is recognized as a Founder of Forensic Psychiatry. He currently serves as the Chair of the Royal College of Physicians and Surgeons of Canada’s National Specialty Committee in Forensic Psychiatry.

[14] Ms. Jaffer has been with the CSC since 2011. She was qualified to give expert opinion evidence on the assessment, classification, and treatment of offenders in the penitentiary system and protocols with respect to the supervision of high-risk offenders in the community and the programming available for offenders within the penitentiary system.

[15] Mr. Mohamed did not challenge the qualifications of either witness. He also did not testify, but did call his mother-in-law, Amina Qasim, who is also the guardian of his four-year-old son, Adil. When given an opportunity to address this Court, Mr. Mohamed thanked me for presiding over this case.

[16] The Record was entered as an exhibit in its entirety on consent, subject to the Defence advising me if any documents were objected to. There were a number of redactions of information in the Record that Mr. Wilson advised contained information that the Crown conceded was not admissible. There was no issue that all the documents in this Record are authentic, in the sense that they are what they purport to be. Ms. Jaffer was able to explain the significance of many of documents in the Record concerning the custodial history for Mr. Mohamed but did not have personal knowledge of their contents.

[17] I accepted the accuracy of dates for events as set out in the documents in the Record, but I asked counsel to consider each of the documents and advise whether I could rely on the truth of the contents, particularly to the extent the document contained information about Mr. Mohamed’s behaviour or statements and admissions stated to be made by him. I was never given Mr. Bryant’s position with respect to specific documents as I hoped. However, he did submit that with respect to the various convictions, I should limit my consideration to what was stated in the transcripts. Where there is no transcript, I could consider what Dr. Booth states in his Assessment Report. As for other documents – such as assessments that were done or reasons for suspension of release – Mr. Bryant was not prepared to agree that the facts stated in these documents were true, only that the information in those documents was why certain decisions were made. He did agree that I could rely on what I found to be “credible and trustworthy”.

[18] I want to be clear that although I was satisfied that this type of evidence met the “credible and trustworthy” threshold to permit admission, I considered each document along with the evidence I heard concerning that document and all the other evidence before deciding what weight it would be afforded and to what extent it would be relied upon: see R. v. Williams, 2018 ONCA 437. For the various convictions, I considered transcripts of the sentencing hearings. I also considered information in the documents in the Record stated to have been made by Mr. Mohamed to be an accurate statement of what he said, given the position held by the various authors of those documents.

[19] Dr. Booth, however, did consider all the records in reviewing Mr. Mohamed’s background and criminal history. This of course is to be expected. Mr. Bryant did not suggest in his cross-examination of Dr. Booth nor in his closing submissions that Dr. Booth’s opinion should in any way be given less weight as a result.

The Predicate Offences

[20] My findings of fact in support of the offences I convicted Mr. Mohamed of are set out in detail in my Judgment. A summary relevant to sentencing is as follows.

[21] On the evening of Friday, November 2, 2018, Ms. S. went to a bar in the Jane and Lawrence area with a female friend. By chance, they ran into Mr. Mohamed and his brother, Hassan, around 1:15 a.m. on the morning of November 3, 2018. Ms. S. and Mr. Mohamed knew each other through mutual friends. After time spent at this bar, they then went together to an after-hours bar. After spending a couple of hours there, Ms. S. invited everyone to her apartment and Mr. Mohamed’s brother drove them there. On the way, Hassan purchased a bottle of Crown Royal. Ms. S.’s friend changed her mind about going so she was dropped off at her home. The remaining three continued to Ms. S.’s apartment, arriving at approximately 6:41 a.m. on the morning of November 3, 2018.

[22] After having some food and hanging out in Ms. S.’s living room and listening to music, Mr. Mohamed motioned to Ms. S. to come to him and asked if he could talk to her for a bit. He was standing in the hallway and when she walked over to him, he forced her into her bedroom, pushed her onto her bed and straddled her. Ms. S. resisted and struggled to get away. She screamed for help but when Mr. Mohamed’s brother came into the room, Mr. Mohamed was able to get his right hand on her neck as his brother helped him remove her pants. Ms. S. was struggling to breathe. She believes that at one point she lost consciousness or fainted. Mr. Mohamed raped her vaginally. I gave reasons for why I rejected Mr. Mohamed’s evidence that he and Ms. S. had consensual intercourse.

[23] After this sexual assault, Mr. Mohamed forced Ms. S. to submit to his brother, who also sexually assaulted her in her bedroom. During this second sexual assault, Mr. Mohamed threatened to kill Ms. S. as she pleaded for him to spare her life. I also found that Mr. Mohamed then sexually assaulted Ms. S. again vaginally and this time it was much more violent. She lost consciousness at least twice because she could not breathe. She thought she was going to die. Ms. S. was able to change into clothing so that she could pray as she was afraid that she was going to be killed. She then tried to escape the apartment but failed as Mr. Mohamed pulled her back in. After this, Mr. Mohamed and his brother each sexually assaulted her again, this time on her son’s bed, despite her pleading that they not do so there.

The Background of Mr. Mohamed

[24] There are three primary sources of information concerning the background of Mr. Mohamed: a comprehensive Pre-Sentence Report dated December 11, 2008, filed before Justice Hogg; information in Dr. Booth’s Assessment Report obtained from the documents he reviewed and from Mr. Mohamed; and information Dr. Booth obtained from Mr. Mohamed’s cousin, Mr. Abdi Azzes Cusen.

Pre-sentence Report dated December 11, 2008

[25] A comprehensive Pre-Sentence Report dated December 11, 2008 (“2008 PSR”) was filed before Justice Hogg for the charges set out below. That is the only PSR before this Court. The relevant background information contained can be summarized as follows.

[26] Mr. Mohamed was born on January 1, 1984 in Somalia. He is the second eldest and has an older brother, four sisters, and one younger brother. His mother and his sisters left him in Somalia when he was three years old and came to Canada in hopes of attaining a better life. Mr. Mohamed was then raised by his aunt until he came to Canada at the age of 11. He viewed his aunt as his mother through his childhood. Mr. Mohamed told the author of the PSR that his father was not a factor in his life and that he was unsure of his whereabouts. According to Mr. Mohamed, there were no financial problems, substance abuse problems, or physical discipline in the home. However, he expressed a great deal of resentment and a feeling of abandonment regarding his mother's departure to Canada early in his life.

[27] In 1995, Mr. Mohamed's mother sponsored her remaining children and Mr. Mohamed's aunt and uncle to come to Canada. Upon family reunification in Canada, Mr. Mohamed stated that his relationship with his mother was strained, and he continued to harbour feelings of anger, resentment, and abandonment towards her. The family resided in the Jane Street and Weston Road area of Toronto.

[28] Mr. Mohamed attended Bala Avenue Community School up until grade 5. He graduated and went to CR Marchant Middle School for grades 6 to 8. He told the author of the PSR that he was an average student and that he did not recall any incidents where discipline was needed. Mr. Mohamed went to West End Collegiate for Grade 9. He was in a fight with another student and school administrators decided to separate them. As a result, he was transferred to Thistle Town Collegiate (“TTC”) where he went for grades 10 and 11. Dr. Booth obtained more information about what happened in Mr. Mohamed’s high school years thereafter.

[29] At the time of the PSR, Mr. Mohamed advised that he was the father of a five-year-old daughter whom he had not seen in years. He confirmed that he did not have contact with the mother and had not played an active role in his child's life either emotionally or financially to date.

[30] According to the author of the PSR, Mr. Mohamed expressed an indistinct interest in completing some form of education once he was released and said that the program “Breaking the Cycle” would assist him in finding an appropriate education program. The author of the PSR spoke to Derek Woodruff from the Breaking the Cycle program, who confirmed that Mr. Mohamed completed this program and that his performance in the program was good and that he did a good job in terms of public speaking.

[31] Mr. Mohamed advised the author of the PSR that he had worked for one year as a telemarketer but that he was laid off from this job when business got slow. He then worked for six months at the Breaking the Cycle Program. Mr. Woodruff confirmed that when Mr. Mohamed participated in this program he was paid for a portion of the program. At the time the PSR was prepared, Mr. Mohamed was unemployed and had no plan for employment save to seek the assistance of the Breaking the Cycle program.

[32] Mr. Mohamed advised that he started drinking in his high school years. After school he and his friends would get together and have a beer everyday. As time progressed, so did his use of alcohol. Once he was released from prison, he returned to his old neighbourhood and submerged himself in the drinking and drug subculture.

[33] Mr. Mohamed told the author of the PSR that he was not an avid drug user growing up but that he would occasionally use marijuana after school or in social situations. He stated that this all changed when he went to prison and was introduced to crack cocaine. He took an immediate “shining” to this drug. Upon release into the community, Mr. Mohamed stated that he had a voracious appetite for crack cocaine and drinking. He used crack cocaine daily and soon ran out of money to buy drugs. The only way he could procure drugs was through illegal means, which included robbery.

[34] Mr. Mohamed stated that he engaged in some generalized trouble in prison and that he had an altercation with a Correctional Officer. According to Ministry of Community Safety and Correctional Service records from the Toronto West Detention Centre (“TWDC”), Mr. Mohamed exhibited unpredictable behavior in the institution. As a result, a psychiatrist saw Mr. Mohamed on several occasions, although no formal diagnosis was ever made. Mr. Mohamed had been prescribed Zydis, which he refused to take. In October 2008, Mr. Mohamed was diagnosed with a seizure disorder and prescribed medication that he also refused take.

[35] Although the Toronto Police Service identified Mr. Mohamed as being associated to a well-known street gang, he denied any ties to street gangs. He did acknowledge that when he was released from prison, he associated with a group of people that were using and had easy access to drugs and alcohol.

[36] Mr. Mohamed advised the author of the PSR that he was unsure how to contact his mother or aunt for the purpose of the PSR and attempts by Probation Services to contact family members were unsuccessful. Although messages were left, none were returned.

Information provided to Dr. Booth

[37] Dr. Booth obtained a great deal of information about Mr. Mohamed’s background. It is summarized in his Assessment Report. I will only set out some of the information that I found to be most relevant.

[38] Although Mr. Mohamed's mother lives in Toronto, he has not spoken to her for over four years. He denies having had a falling out with his mother but was unable to explain why they had not maintained contact. Mr. Mohamed told Dr. Booth that he has never really known his father and was not able to tell him much about him. Mr. Mohamed has never met nor had a relationship with his paternal grandparents. He told Dr. Booth that his maternal grandmother, who passed away about six years ago, was the one who raised him after his mother left for Canada, not his aunt as he told the author of the 2008 PSR.

[39] Mr. Mohamed does not have a relationship with most of his siblings and has not seen most of them for many years. He might see his younger sister, Hana, who lives in Toronto, three or four times per year but has not seen her since being incarcerated. He is closest to his younger brother Hassan and he would see him on weekends when they would "hang out together". The last time Mr. Mohamed saw him was just before he was arrested, and he has not had contact with him since as he was prohibited from doing so by court order.

[40] Mr. Mohamed told Dr. Booth about his son Adil who was born in July 2017 – with a former partner, whom he was married to and whom he has been seeing intermittently since 2014. He has not spoken to his former partner since being incarcerated. However, his son has been brought to the jail for visits on some occasions. When not in custody, Mr. Mohamed stated that he would see his son regularly but was unable to give an estimate of how often. He also suggested that he provided some financial support, but this appeared unlikely to Dr. Booth given his unstable living situation and lack of financial means.

[41] Mr. Mohamed told Dr. Booth that he can read and write English "okay"; however, he subsequently suggested that the long delays in questionnaires and apparent lack of effort were due to his inability to read and write, contradicting this statement and contradicting previous psychological testing suggesting that he was reading and writing at least a grade 7 level. Dr. Booth is of the opinion that this previous testing likely underestimates Mr. Mohamed’s actual ability given his school history.

[42] Mr. Mohamed denied any physical, sexual, and emotional abuse. He said that he had a "very good" childhood. Mr. Mohamed agreed that he was the "black sheep" of the family. The family did struggle somewhat financially and lived in cooperative housing.

[43] Dr. Booth states in his Assessment Report that Mr. Mohamed's self-report was quite questionable and that he was provided with a Youth Court Assessment (“YC Assessment”) regarding a disposition date of November 2, 2000, when Mr. Mohamed was 15. The YC Assessment highlights a more detailed history. Some of that information is set out in Dr. Booth’s Assessment Report.

[44] The YC Assessment states that Mr. Mohamed’s mother reported that when he began high school, serious behaviour problems began to develop and escalate despite her attempts to control and discipline him. She also noticed that the friends that her son chose were not considered to be a positive influence on him. When she realised that she could no longer control him, Mr. Mohamed’s mother sent her son to live with his aunt and his uncle. Since his move to his aunt's home, Mr. Mohamed rarely has had contact with his mother. Legal guardianship was granted to his aunt and his uncle soon after he received his second probation order in February 2000.

[45] Mr. Mohamed's self-report to Dr. Booth regarding his academic history contradicts file information. Specifically, he denied behavioural issues, which appeared to have been significant. Mr. Mohamed's self-report is also contradicted by a contemporariness YC Assessment. That Assessment states that once Mr. Mohamed reached Middle School for grade eight, incidents involving fighting and skipping classes began to occur. When he went to TTC in 1999 for grade 9, he was expelled in May 2000 because of chronic truancy, poor adherence to rules, and insufficient academic performance. When he was readmitted to TTC at the time of the YC Assessment, he was close to being expelled again for truancy.

[46] Mr. Mohamed has had limited work experience and, again, his self-report is likely not accurate. Despite his limited work history, Mr. Mohamed said he was a reliable and good worker and that his future plans would be to "get into business" and "invest something". He was trying to take a business course online but was told to do the John Howard Society Program first in the classroom and then do the hands-on portion. He hopes to at some point "get into buying and selling" but had no specific plan and could not describe what this would entail.

[47] Mr. Mohamed has mainly been supported on social assistance. He confirmed that he had also done robberies and stealing to support himself. He said that he was "working legit and obviously [he] did illegal stuff to get money." However, he denied any illegal ways of earning income since his federal sentence, stating that he had done "none at all" as he wanted to "be honest".

[48] Despite virtually no work history, Mr. Mohamed estimated that he supported himself independently about 40% of the time and received social assistance about 60% of the time. Again, there is no verification this is true, and his estimate would seem elevated given his description of his own work history above.

[49] Mr. Mohamed's self-report regarding his substance use is also contradictory to file information. He also contradicted his own self-report at various times during the interviews. Mr. Mohamed denied feeling that his alcohol use was excessive, problematic, or out of control. He admitted to using cannabis daily throughout his life. Mr. Mohamed denied ever trying opiates, amphetamines, ecstasy and other party drugs, mushrooms, or any other illicit substance. He denied stealing to support a drug habit, explaining this was instead to pay rent and feed himself. As noted in the file including a report from 2012, Mr. Mohamed had also reported daily use of crack cocaine. However, at other times, he has denied using any substances. Mr. Mohamed said that he had never entered a treatment program for alcohol or drug use as he did not feel this was necessary.

Information from Mr. Mohamed’s cousin Abdi Azzes Cusen

[50] Mr. Cusen is the only family member that Dr. Booth interviewed. His mother and Mr. Mohamed's mother are sisters. Mr. Cusen told Dr. Booth that he feels he knows Mr. Mohamed fairly well. When Mr. Mohamed is out of jail, he supports him as much as possible. When he is in jail, he usually visits him. He will also give Mr. Mohamed some financial support so that he has canteen in jail.

[51] Mr. Mohamed's mother and other family members all live in the same area. Mr. Cusen confirmed that in the past Mr. Mohamed had a fair relationship with his mother, who works in a seniors' home and noted that his father has not really been involved. He confirmed that there was no one in the family with legal issues, noting that Mr. Mohamed is the only one in his 25 member family who has ever had any run-ins with the law. He said that Mr. Mohamed is closest with his brother Hassan.

[52] Mr. Cusen confirmed that Mr. Mohamed likely has a problem with drinking. He was unaware of what drugs he might use. As far as he was aware, there is no family history of mental health issues, nor legal or substance abuse problems.

[53] In discussing psychiatric issues, Mr. Cusen said that the only time that he has noticed Mr. Mohamed being unwell was when he came out of jail in approximately 2015. He was "a little bit different" after being in jail for a long time. He said that his "mind was gone" and Mr. Mohamed would take a long time to answer questions. Mr. Cusen and other family members would have to repeat questions. This lasted for a few months and then he seemed to go back to his baseline.

[54] During the current incarceration, Mr. Cusen had seen Mr. Mohamed a couple of times but then COVID started. Mr. Mohamed might call him if he needs something, but he has not seen him or had any long discussions.

[55] He was unaware that Mr. Mohamed might currently be unwell. He did not feel that Mr. Mohamed needed any medications. However, when he called Dr. Booth the next day, he said that he was going to advocate that Mr. Mohamed take medications.

[56] Dr. Booth states that Mr. Cusen seemed to minimize and not be aware of some of Mr. Mohamed's documented adolescent difficulties and his criminal problems. He also seemed to be advocating for Mr. Mohamed, making his overall report somewhat unreliable.

Chronology of Mr. Mohamed’s Criminal Convictions and Relevant Events While in Custody

[57] This chronology was prepared from my review of the Record and includes some of the comments on the documents from the Assessment Report. I have only included the events and information most relevant to the issues to be determined. Further information about some of these convictions provided by Mr. Mohamed is included. More details are set out in the Assessment Report.

January 2000 to November 2001 – Youth Record

[58] Mr. Mohamed’s first conviction as a youth was in January 2000 when he had just turned 16. He was convicted for two counts of possession of property obtained by crime over $5,000 and one count of theft under $5,000. He received probation for 24 months on each charge, concurrent. During the balance of 2000 and to January 2001, Mr. Mohamed was convicted three more times of theft, two of which were theft over $5,000 and two related charges, serving some jail time, the longest being 80 days. In November 2001, he was convicted of robbery with violence and fail to comply with conditions of undertaking given by the officer in charge. Mr. Mohamed was sentenced to 45 days in addition to time served of 33 days and one year probation on each charge, concurrent.

May 2002 to November 2020 – Adult Record

[59] Mr. Mohamed’s adult criminal record spans 18 years – from May 2002 to the predicate offences he was convicted of in November 2020 and includes over 30 convictions. He has spent a large portion of his adult life in either provincial or federal custody and has been in custody since his arrest for the predicate offences in November 2020. He has been sentenced to penitentiary terms on two prior occasions for offences of extreme violence that resulted in serious personal injury to his victims.

[60] In the period from May 2002 to November 2004, Mr. Mohamed had nine convictions for assault, uttering threats, four convictions for fail to comply with a probation order, two convictions for theft under $5,000, and a conviction for carrying a concealed weapon on November 2, 2004. The longest sentence imposed in this period was time served of 105 days. Also in this period, in November 2002 he committed two violent robberies which, as I will come to, he was sentenced for on December 15, 2004.

[61] With respect to the conviction for carrying a concealed weapon, the weapon was a shank. Mr. Mohamed told Dr. Booth that at the time of this offence he was being held at the Maplehurst Correctional Complex in Milton, Ontario. When asked why he was carrying a concealed weapon he said, “I had one of those small little screw drivers I had to defend myself during jail time.” When asked whether he had been assaulted in jail prior to possessing the weapon, he did not reply clearly that he was in fact previously assaulted in jail.

December 15, 2004 – Justice Hawke

[62] On December 15, 2004, at the age of 19, Mr. Mohamed pleaded guilty before Justice Hawke of the Ontario Court of Justice (“OCJ”) in Brampton and was convicted of the offences of robbery (two counts) and possession of a weapon – a knife – for a purpose dangerous to the public peace. A transcript of this attendance sets out the factual basis underlying these convictions. The Court heard that on November 4, 2003, Mr. Mohamed and two other males entered the kiosk of a gas station for the purpose of committing a robbery. Mr. Mohamed jumped over the counter and brandished a knife at the complainant who was working there alone. When the complainant could not enter the proper code to open the register, Mr. Mohamed stabbed him four times in his chest and arm – all non-life-threatening injuries that the complainant was treated for at the hospital. Approximately $500 in lottery tickets and cigarettes was stolen.

[63] The Court also heard evidence that Mr. Mohamed and another male robbed a second gas station on November 11, 2003. During that incident, Mr. Mohamed was wearing a black balaclava over his face and approached the cashier. He allegedly produced a knife and held it to the cashier and demanded cigarettes. Mr. Mohamed then jumped over the counter, pushed the complainant aside and grabbed several cartons of cigarettes and cash from the register. He was not alleged to have stabbed anyone. They both fled the scene and were arrested a short distance away by a patrolling officer. Mr. Mohamed was found in possession of 16 packages of cigarettes and $75. In the 2008 PSR, Mr. Mohamed told the author that he was stealing to get money for rent.

[64] Mr. Mohammed admitted these facts as correct before Hawke J. Justice Hawke was advised that Mr. Mohamed had a grade 11 education, that he had been working sporadically in telemarketing, and that he had a girlfriend and a seven-month-old daughter. He was sentenced to a further period of two years and nine months in custody, after a credit for pre-sentence detention on a 2:1 basis of two years and three months, for a total effective sentence equivalent to five years.

[65] When Mr. Mohamed was interviewed by Dr. Booth with respect to the November 4th robbery, he told him that he used a Rambo knife with a friend of his to rob the gas station in order to “get some money to feed myself, pay rent, whatever. It’s human nature. I was young and stupid to be honest.” With respect to the stabbings, he stated that his goal was to open the safe. When asked about how the incident may have affected the store clerk he said, “pretty bad”, and, when prompted multiple times for elaboration, he added “probably give them nightmares or scared.” He was not able to provide further information with respect to the November 11th robbery.

February 6, 2006 – Psychological Risk Assessment Report – Dr. Ray Yokubynas

[66] Dr. Ray Yokubynas, a psychologist, completed a Psychological Risk Assessment of Mr. Mohamed at the Millhaven Assessment Unit due to persistent violence including the offences he had been convicted of by Justice Hawke. This report notes that Mr. Mohamed had three attempts to administer testing, but he “refused to comply.” When he was asked about the robberies, Mr. Mohamed was reported to have “downplayed the injuries sustained by the one victim.” In completing testing, Mr. Mohamed was observed to be guarded, suggesting he could not read questionnaires despite testing showing at least grade 7 reading and writing ability. Dr. Yokubynas states: “A major problem with Mr. Mohamed appears to be his overall credibility.” Overall, there was no evidence of thought disorder or unusual behaviour or any evidence of psychotic symptomatology. Mr. Mohamed was felt to be at a low-moderate risk for violent recidivism and moderate risk for general recidivism. Dr. Booth refers to this report in some detail in his Assessment Report.

April 19, 2006 – Program Performance Report

[67] Mr. Mohamed successfully completed the Violence Prevention Program – High Intensity (“VPP-HI”) between October 31, 2005 and April 10, 2006. He had never participated in any program before to address his violence. Mr. Mohamed’s attendance in the program was reported to be problematic but he did complete the program and his overall behaviour with the participants and his interactions with the facilitators was stated to be “acceptable”.

June 8, 2006 – National Parole Board Pre-Release Decision

[68] Mr. Mohamed was granted day parole by the National Parole Board (“NPB”) to one of two community-based residential facilities with conditions, including counselling for Violence Prevention Maintenance (“VPP-Maintenance”) and not associating with persons involved in criminal activity. Ms. Jaffer testified that the VPP-Maintenance program is designed to reinforce and refresh skills and tools learned previously in a core program. Maintenance can be done in the institution or the community.

July 25, 2006 – Warrant of Apprehension and Suspension of Day Parole

[69] Mr. Mohamed’s Day Parole was suspended because of indications of a breach of conditions or indications of increased risk. This suspension would have to be reviewed by the NPB.

August 14, 2006 – Assessment for Decision

[70] This decision addressed the circumstances of the suspension of Mr. Mohamed’s Day Parole and sets out the recommendation to the NPB from the case management team (“CMT”) that his Day Parole be revoked because the CMT had decided that Mr. Mohamed’s risk was not manageable in the community. The breaches related to alcohol use. However, it does note that Mr. Mohamed had been doing well in a Breaking the Cycle Program.

October 26, 2006 – NPB Decision

[71] The NPB revoked Mr. Mohamed’s Day Parole.

February 13, 2007 – NPB Appeal Decision

[72] The decision to revoke Mr. Mohamed’s Day Parole was affirmed.

April 26, 2007 – Statutory Release Certificate

[73] Mr. Mohamed was released on this date – his Statutory Release – with conditions including counselling for VPP-Maintenance and not associating with persons involved in criminal activity. This Statutory Release was to continue to his Warrant Expiry Date (“WED”).

April 27, 2007 – Warrant of Apprehension and Suspension of Statutory Release

[74] Mr. Mohamed’s Statutory Release was suspended.

May 23, 2007 – Assessment for Decision

[75] This decision addressed the circumstances of the suspension of Mr. Mohamed’s Statutory Release and set out the recommendation from the CMT to the NPB that Mr. Mohamed’s Statutory Release be revoked.

June 27, 2007 – NPB Decision

[76] The NPB revoked Mr. Mohamed’s Statutory Release and recommended Special Conditions to be imposed on Mr. Mohamed’s next Statutory Release date. This decision is referred to in more detail in Dr. Booth’s Assessment Report.

July 26, 2007 – Statutory Release Certificate

[77] Mr. Mohamed was released on this date from Joyceville Federal Correctional Centre (“Joyceville”) – his Statutory Release, with conditions including abstaining from drugs unless prescribed and not associating with persons involved in criminal activity. This Statutory Release was to continue to his WED of September 14, 2007.

August 1, 2007 – Warrant of Apprehension and Suspension of Statutory Release

[78] This Warrant was issued when Mr. Mohamed became, "whereabouts unknown". Because he was “at large” for one day, this changed his WED to September 15, 2007.

August 3, 2007 – Execution of the Warrant

August 13, 2007 – Assessment for Decision

[79] This decision addressed the circumstances of the suspension of Mr. Mohamed’s Statutory Release and sets out the recommendation from the CMT to the NPB that his Statutory Release be revoked. This recommendation did not go to the NPB because Mr. Mohamed’s WED fell within 90 days of the suspension.

September 15, 2007 – The WED for sentence imposed by Justice Hawke – Mr. Mohamed released

April 23, 2008 – Mr. Mohamed commits the offences he was sentenced to by Hogg J. on October 29, 2009

October 29, 2008 – Misconduct Report

[80] It is reported that on this day, while at the TWDC, Mr. Mohamed punched another inmate in the face with a closed fist.

December 2, 2008 – Healthcare Record

[81] This is a healthcare note that Dr. Booth included in his Assessment Report. It states that Mr. Mohamed while in custody “on 4A seg side” approached the door and began saying that he had experienced visual and auditory hallucinations the prior night and he denied receiving commands. He said that he saw a man on his bed who told him he was from the 1700s, was talking about him for a long time, then as the lights were turned off, the man walked through the doors and left his cell. The record reports Mr. Mohamed stating that he felt afraid and had difficulty sleeping.

[82] Dr. Booth testified that he looked at Mr. Mohamed’s health records for evidence of previous signs of mental health problems. He included this record in his Assessment Report in support of his ultimate diagnosis of likely schizophrenia.

April 16, 2009 – Medical Order Sheet

[83] Mr. Mohamed was prescribed Risperidone, and he was to be seen by a psychiatrist at the request of his GP. There is no documentary evidence as to the reason this medication was prescribed. Dr. Booth testified that Risperidone is a class of antipsychotic medications that is given for psychotic illness. Dr. Booth relied on the fact as already stated that back in December 2008, Mr. Mohamed had been complaining of hearing voices. Dr. Booth stated that the Risperidone would likely have been prescribed because hearing voices is a symptom of psychosis.

October 29, 2009 – Justice Hogg

[84] On October 29, 2009, at the age of 25, Mr. Mohamed was sentenced by Justice Hogg of the OCJ following an earlier attendance almost a year earlier when he had pleaded guilty[^1] when he was convicted of aggravated assault (two counts), robbery (two counts), and possession of a weapon for a purpose dangerous to the public peace, which I presume was a knife and possession of property obtained by crime. The underlying conduct for these offences was committed within a period of about two hours on April 27, 2008, just seven and a half months after Mr. Mohamed completed his first penitentiary sentence.

[85] Unfortunately, the transcript from the plea is not available and so only the transcript from the sentencing hearing is in the Record, which provides limited information. At the sentencing hearing, Mr. Mohamed did not have counsel, but the Court was assisted by amicus curiae. Amicus advised that Mr. Mohamed did not remember some of what occurred but that he had gone over the forensic evidence with Mr. Mohamed and that he was abandoning the request to strike his plea. Amicus then proceeded to review the facts of the offences and there was no suggestion by Mr. Mohamed that any of these facts were not accurate.

[86] Amicus referred to what he described as the first incident where Mr. Mohamed came in and assaulted the complainant with a knife. Mr. Mohamed approached the second complainant on the street about 25 minutes later and asked if he had some drugs and assaulted him with a knife, cutting his face, arms, and body. About an hour later, a taxi driver who had picked up Mr. Mohamed called police to allege that Mr. Mohamed took back $40 that he had given to the driver and, about 30 minutes after that, had robbed a gas station. Amicus advised Hogg J. that Mr. Mohamed was so drunk on the night in question that he did not remember much of what happened. According to the times of phone calls to police, these four incidents occurred within a period of about two hours.

[87] Dr. Booth’s report refers to the Assessment for Decision (Joyceville March 9, 2011 – p. 12) for considerably more detail about these four incidents. Counsel agree that the information in this decision likely comes for the police synopsis, which in light of Williams, I must treat with caution. I have decided that it is not necessary to consider this information. As already stated, Mr. Bryant did not suggest in his cross-examination of Dr. Booth nor in his closing submissions that Dr. Booth’s opinion should in any way be given less weight because he reviewed this type of information. In my view, the extra detail from this document had no material impact on Dr. Booth’s opinions.

[88] Justice Hogg had a copy of the 2008 PSR filed before Hawke J., which I have already summarized. Mr. Mohamed had told the author of the PSR that these robberies were committed in order to get money to support his drug habit and that at the time of these incidents he had drunk "a 60-ounce bottle of Vodka and 48 beers" and was high on drugs. According to the author of the PSR, Mr. Mohamed identified his drug use as the primary factor for these charges and said that he was so intoxicated that he only had a vague recollection of the events that led to his arrest. He did not remember who the complainants were and, according to the author of the PSR, downplayed his past criminality and his poor response to community supervision.

[89] Before being sentenced Mr. Mohamed told the court:

I am deeply very sorry of what happened. I was very drunk. I know it wasn't the right thing for me to do. It was the wrong thing. I'm very sorry. It will never happen again, and I take full responsibility for it, Your Honour.

[90] Justice Hogg did not review the facts any further in his reasons save to say that Mr. Mohamed inflicted “horrendous injuries to these people”. One of those complainants had prepared a VIS, which stated that he had suffered a punctured lung and suffers trauma because of the assault. In sentencing Mr. Mohamed, Hogg J. stated: "You were like a one man – you inflicted horrendous injuries to these people. As a matter of fact, you should be going to the penitentiary for at least ten years".

[91] Justice Hogg sentenced Mr. Mohamed to a further five years after a credit for pre-sentence custody (“PSC”). Counsel before me disagree as to whether the 18 months of actual time before sentence was given a 2:1 credit or not. Mr. Wilson submitted that the actual sentence imposed was eight years whereas Mr. Bryant submitted it was only six and a half years. This factual issue will only need to be resolved if I decide to impose a determinate sentence.

[92] Dr. Booth asked Mr. Mohamed about these convictions and believes that he may have confused these offences, combining them factually with the offences he pleaded guilty to before Hawke J. Mr. Mohamed told Dr. Booth: “I think it was a drug deal gone bad. I was buying drugs from somebody, actually, no I was selling drugs to somebody, and they gave me fake money. I was selling him crack-cocaine.” When asked why he stabbed the victim, Mr. Mohamed stated that the victim had sold drugs for him but did not provide a clear reason for the stabbing. He denied asking the stranger at the bus stop for drugs. He maintained he was not under the influence of alcohol or other substances at the time and told Dr. Booth that he did these acts to get money and feed himself. As Mr. Wilson submitted, the attempt to justify his conduct, in part, as a drug deal gone bad was presumably a reference to his attack on the first victim. Mr. Mohamed made no mention of the other three.

[93] Dr. Booth testified that when discussing these incidents with Mr. Mohamed, he showed no insight into the significant harm he had caused his victims.

December 9, 2009 – Psychological Psychiatric Assessment by Dr. Brian Farrell, Chief Psychologist at Millhaven

[94] Dr. Booth did not refer to this report in his Assessment Report and he was not asked about it by counsel. Mr. Mohamed was admitted to the Millhaven Assessment Unit on November 20, 2009. He consented to participate in computerized mental health screening designed to screen for the possible presence of mental health issues. No mental health issues were identified that were suggestive of significant psychopathology, which would likely affect his correctional programming. The testing was stated in the report as not diagnostic in nature. I presume that is why Dr. Booth did not refer to this assessment.

February 18, 2010 – Correctional Plan

[95] This Correctional Plan was prepared with respect to Mr. Mohamed’s second penitentiary sentence imposed by Hogg J. Mr. Mohamed was assessed as needing a high level of intervention. His accountability for the current offences was assessed as moderate and his motivation for change as medium.

[96] SIR in the Correctional Plan stands for “Statistical Information on Recidivism” and VPP stands for “Violence Prevention Program”. Ms. Jaffer stated that she believes the recommendation was that, although Mr. Mohamed did not meet the criteria for referral to the VPP-HI program, based on his background, the CMT recommended an override by Regional Headquarters so that he could take it again (he had already completed a VPP-HI between October 31, 2005 and April 10, 2006, when he was serving the sentence imposed by Hawke J.).

March 11, 2011 – Referral Sheet for Offender Security Level

[97] Mr. Mohamed was designated as a medium security risk. There is a statement that during the review period Mr. Mohamed had one serious charge pending for possession of a weapon which presumably relates to his conviction on December 4, 2012 by Justice Letourneau, which I will come to. The sheet also states that Mr. Mohamed was involved in one physical altercation and was segregated on one occasion for “drug subculture information”. It is not clear what that means.

April 2011

[98] While serving the sentence imposed by Hogg J., Mr. Mohamed, along with two fellow inmates, engaged a violent attack upon another group of inmates in Joyceville in April 2011. He was charged and convicted – see below.

August 2011

[99] Mr. Mohamed was involuntarily transferred to Millhaven Institution (“Millhaven”) in August 2011 because of his participation in the attack on other inmates in Joyceville in April 2011.

May 11, 2012 – Psychological Risk Assessment by Dr. Ray Yokubynas

[100] Dr. Yokubynas completed another Psychological Risk Assessment Report of Mr. Mohamed, dated May 11, 2012, which related to the convictions by Justice Hogg. It was noted that Mr. Mohamed's version of the offences was "somewhat different than the official version." Mr. Mohamed also said that he was not under the influence of substances at the time of the offences. With respect to the violence at Joyceville, Mr. Mohamed admitted that he was one of the inmates that were identified on the camera but that he "did not do anything"; although according to the report, "Mr. Mohamed was seen with a shank in his hand and was involved in assaults on other inmates."

[101] During the assessment, Mr. Mohamed presented in a "vague and generally unreliable manner" and demonstrated "minimal insight" into the nature of his offences. There was no evidence of psychosis at that time. Overall, Mr. Mohamed was felt to be at a moderate risk of violent and general recidivism. This report is also referred to in some detail in Dr. Booth’s Assessment Report.

May 24, 2012 – Final Performance Report

[102] Mr. Mohamed participated and successfully completed a Violence Prevention Program-Moderate Intensity (“VPPM-MI”) from February 8, 2012 to May 8, 2012, while serving his sentence at Millhaven. He had been deemed to be a moderate risk for violent recidivism. In the final Program Performance Report, the program supervisor refers to the fact that while serving his first penitentiary sentence Mr. Mohamed completed the VPPM-HI in April 2006, but given his further sentence for a violent offence, it was found that further intervention was necessary. This is a report that Dr. Booth refers to in some detail in his Assessment Report.

[103] According to the performance report, during pre-trial custody, in addition to the incident in Joyceville that I have already referred to, Mr. Mohamed had also participated in violent incidents while residing at Millhaven. When asked to participate in this violence program Mr. Mohamed is reported to have asked why, as he had “already taken the high intensity program and was not referred to maintenance after completion”.

[104] Once in the program Mr. Mohamed was reported to be an active participant. He stated that he did not have an education and employment plan when released the first time and that is why he reverted back to a criminal lifestyle, and why he was back for a second sentence. The performance report makes various comments about statements made by Mr. Mohamed and observations made by staff that are reported in Dr. Booth’s Assessment Report.

July 20, 2012 – Mr. Mohamed earned his Ontario Secondary School Diploma

August 21, 2012 – Mr. Mohamed successfully completed the National Substance Abuse Program-Moderate Intensity

[105] While serving his sentence at Millhaven, Mr. Mohamed successfully completed the National Substance Abuse Program-Moderate Intensity on August 21, 2012. Dr. Booth refers to the performance report by Mackenzie Daubney, dated August 21, 2012, in his Assessment Report in some detail. That report is not in the Record, but I do have Mr. Daubney’s Final Performance Report dated January 14, 2013.

[106] During the program, Mr. Mohamed was said to have made gains in all the target areas of problem recognition, motivation, enhanced self-regulation, and relapse prevention planning. Mr. Mohamed had reportedly conceded that "drinking makes him more violent" and acknowledged his use of alcohol during the offences of April 27, 2008. Mr. Daubney also noted that Mr. Mohamed had at times reported daily use of crack cocaine. However, as Dr. Booth noted when he assessed Mr. Mohamed, his attitude was that substance abuse was “not an issue” for him, rather he was motivated to do the program to get back to a medium institution.

November 20, 2012 – Assessment for Decision

[107] This decision set out the recommendation from the CMT to the NPB for Special Conditions upon release with respect to Mr. Mohamed’s upcoming Statutory Release date of February 27, 2013, with reasons, based on his history and is referred to in more detail in Dr. Booth’s Assessment Report.

December 4, 2012 – Justice Letourneau

[108] As already stated, while serving the sentence imposed by Hogg J., Mr. Mohamed, along with two fellow inmates, engaged a violent attack upon another group of inmates within Joyceville in April 2011. As a result, on December 4, 2012, he pleaded guilty and was convicted by Letourneau J. of the OCJ of the offences of possession of a weapon for a purpose dangerous to the public peace and assault with a weapon. The only information about these offences comes from the transcript of the reasons for sentence of Justice Letourneau. Letourneau J. stated that although Mr. Mohamed’s involvement was less than the two other inmates:

Your involvement in this situation is somewhat more aggravating because [you] got the shank, and obviously you did not have it for innocent purposes and it is fortuitous in some respect that you did not manage to get into contact with one of these inmates, because the Court could have little doubt that you would have used that shank. You were clearly seen in the videos being proactive as opposed to reactive. You were trying to get into the Lifer Room. You kept coming back.

[109] Justice Letourneau sentenced Mr. Mohamed to a further period of 18 months to be served consecutively to the sentence he was already serving.

[110] When interviewed by Dr. Booth, Mr. Mohamed minimized the severity of the incident and suggested a motivation of “helping friends.” He explained that this incident occurred because some of the other inmates had said racial slurs to his group of friends. He added, “a bunch of commotion happened, everyone was defending themselves.” When it was pointed out by Dr. Booth that based on the information in the file it did not appear that he was acting in self-defence when he was trying to break into a room, Mr. Mohamed responded that it was a big commotion and some of his friends had been stabbed. He added that he was angry but said he was not motivated by rage nor did he engage in those acts in cold blood, rather he was just trying to help his friend.

July 21, 2013 – Assessment for Decision by Janice Froats, Parole Officer

[111] The purpose of this assessment was to address Mr. Mohamed’s security level and his application to be transferred back to Joyceville. Some of the information in my chronology to this point is referred to, in some cases with more detail as set out in Dr. Booth’s Assessment Report. Mr. Mohamed’s request was denied. The CMT was unanimous that Mr. Mohamed still required a maximum-security facility.

[112] Mr. Mohamed had been involved in two inmate assaults but had not been involved in a violent incident for six months and had successfully completed violence programming so Ms. Froats, the parole officer, had told Mr. Mohamed that she would “hesitantly support” his transfer to medium. However, less than a week later Mr. Mohamed was involved in a physical altercation with another inmate and may have been intoxicated at the time.

August 22, 2013 – Assessment for Decision by Janice Froats, Parole Officer

[113] Dr. Booth refers to this assessment in his Assessment Report. It was not in the Record before me and so I have reviewed what Dr. Booth states it contains. This assessment set out more detail about the April 2011 incident at Joyceville, as well as Mr. Mohamed’s involvement in four incidents of violent behaviour after he was involuntarily transferred to maximum security at Millhaven. Dr. Booth notes that the assessment added that Mr. Mohamed “does not accept responsibility for his institutional violence and expresses no remorse. Despite having participated in programming aimed at reducing his risk for violence, he continues to engage in violent incidents while incarcerated. He has shown little regard for the welfare of others”.

October 29, 2013 – Letter from Mr. Mohamed to National Parole Board

[114] In this letter, Mr. Mohamed took great exception to recommended Special Conditions by the CMT, which he anticipated would be accepted by the NPB on his upcoming Statutory Release and which would preclude him from consuming alcohol. In explaining that objection, Mr. Mohamed wrote:

I was not under the influence of either drugs or alcohol for any crime I have ever been charged with or convicted of. Criminal convictions I have involved the sale and distribution of narcotics which I assert is decidedly a different matter altogether. None of my crimes involve the use of liquor, sale of liquor and I have never been under the influence of liquor for any of my offences, ever.

[115] It is the Crown’s position that this was a blatant lie to the NPB about the relationship between his alcohol consumption and the violent offences for which Mr. Mohamed was convicted of by Hogg J. I agree. As Mr. Bryant pointed out however, this letter does show some skill by Mr. Mohamed in writing a letter.

January 27, 2014 – Parole Board of Canada Decision Sheet

[116] The Parole Board of Canada[^2] (“PBC”) imposed Special Conditions to Mr. Mohamed’s Statutory Release, prohibiting him from possessing, purchasing, or consuming alcohol.

February 6, 2014 – Final Report of Violent Offender Maintenance Program

[117] Mr. Mohamed successfully completed a VPP-Maintenance Program at Millhaven between December 18, 2013 and February 6, 2014. He attended all sessions, completed all assignments, and was an active participant.

February 26, 2014 – Statutory Release Certificate

[118] Mr. Mohamed was released on Statutory Release with Special Conditions.

May 12, 2014 – Suspension of Statutory Release

[119] CSC officers reported that Mr. Mohamed returned to the Keele Community Correctional Centre after curfew and that he was obviously impaired. The officer could detect a strong alcoholic like odour. Because of Mr. Mohamed’s potential for violent behaviour when intoxicated, it was decided that the risk in the community was no longer considered manageable. As a result, a Warrant of Apprehension and Suspension was issued the same day. The reason for suspension was stated to be the consumptions of alcohol.

July 21, 2014 – Decision of the PBC

[120] The PBC deemed Mr. Mohamed’s risk to no longer be manageable in the community and revoked his Statutory Release. This decision is referred to in more detail in Dr. Booth’s Assessment Report.

March 8, 2015 – Email from Samantha Town to Mental Health Services

[121] Ms. Town reported that after Mr. Mohamed’s application to CBI and security reclassification was denied, he expressed anxiety regarding this decision and had been exhibiting “abnormal behaviours such as talking to himself in his cell, aggressive verbal outbursts, sitting for extended period of time in front of his toilet, absent minded and catatonic state of mind”. She stated that Mr. Mohamed had a lack of interest as well. He told her that there was nothing wrong other than stress that his transfer was denied. He refused to speak to someone in the Psychology Department.

March 20, 2015 – Email from Rebecca Fleming to Mental Health Services

[122] Ms. Fleming reported that Mr. Mohamed exhibited “peculiar and unresponsive behaviour all day” when informed that his entire range was being relocated to and amalgamating with another range. He refused to participate in the relocation and once escorted there he stepped through an open barrier off the range, refused to re-enter, and then lowered his shoulder and ran in the direction of Correctional Service Officers. She concluded her email by stating that Mr. Mohamed had been exhibiting other peculiar behaviour, but she did not specify what she was referring to.

April 27, 2015 – Psychological Services Clinical Progress Notes

[123] Mr. Mohamed had been referred for psychological services because he had exhibited “unusual behaviour”. He was offered an interview with Mental Health Services, which he refused. The Behavioural Clinician who completed the notes stated that Mr. Mohamed impressed as lucid “similar to a previous referral of a similar nature”.

[124] These documents from March and April 2015 are included in Dr. Booth’s Assessment Report in support of his ultimate diagnosis of likely schizophrenia.

May 29, 2015 – Referral for Consultation and Report

[125] Mr. Mohamed was referred to Dr. Oliver for treatment due to “‘atypical behaviour’ dissociated, withdrawn and confused”. I have no information as to what resulted from this referral.

August 24, 2015 – PBC Decision

[126] The PBC imposed Special Conditions, including no drinking and a residency requirement that Mr. Mohamed return to the residential facility nightly.

September 2, 2015 – Statutory Release Certificate

[127] Mr. Mohamed was granted Statutory Release subject to Special Conditions.

October 13, 2015 – Warrant of Apprehension and Suspension and Reasons for Suspension

[128] A Warrant was issued for Mr. Mohamed when information was received that he had consumed alcohol.

October 27, 2015 – Assessment for Decision

[129] The assessment states that the Warrant of Suspension was issued when video footage from the residential facility captured Mr. Mohamed taking an empty beer bottle out of his pocket and putting it into a garbage can located in the kitchen, away from the security desk. The recommendation was that Mr. Mohamed be returned to Millhaven at maximum security.

December 23, 2015 – PBC Decision

[130] The PBC revoked Mr. Mohamed’s Statutory Release. His risk was once again deemed to no longer be manageable in the community.

February 19, 2016 – Statutory Release Certificate

[131] Mr. Mohamed was released on Statutory Release subject to Special Conditions including a residential requirement and no alcohol conditions.

April 8, 2016 – WED – Mr. Mohamed released after serving the sentence imposed by Hogg J.

February 14, 2017 – Mr. Mohamed assaulted his wife.

July 31, 2017 – Justice Bhabha

[132] On July 31, 2017, at the age of 33, Mr. Mohamed pleaded guilty and was found guilty of assaulting his wife on February 14, 2017. They were married in June 2015 and at the time of this assault his wife was 16 ½ weeks pregnant with his child.

[133] The facts Mr. Mohamed admitted were true included that at approximately 2:00 a.m., he and his wife were at an apartment they were both staying at with friends. Mr. Mohamed was intoxicated and tried to get into bed with his wife. Because he was intoxicated, she did not want him in the same bed as her, so she got up and went to sleep on another bed with a friend. Mr. Mohamed then “got in the complainant's face” and demanded that she return to the bed to speak with him. When the complainant refused three times, Mr. Mohamed struck her in the face with the back of his hand causing swelling to her left eye, as well as a scratch on her face from the strike to her cheek. Ultimately, she was able to get away and she left the apartment and slept in the stairwell until the morning, when she was able to get a TTC bus and go to the hospital and then the police. A photograph taken by police showed bruising and swelling to the complainant’s left eye and a scratch on her face from the strike. The only other fact Mr. Mohamed wanted to add before Bhabha J. was that part of the reason they were arguing was that the complainant had looked at his phone.

[134] During a discussion surrounding the appropriate terms of probation to be imposed, the Court posed the question, “Is substance abuse an issue?”. The response given by Mr. Mohamed is transcribed as “inaudible”, however, the response from the Court makes it clear that his answer was, “No”.

[135] When asked about this offence by Dr. Booth, Mr. Mohamed said that at the time of the offence, he and his wife had been living together for about one year and that she threw something at him, and that he slapped her once and was hit by her a few times. When asked if he knew she was pregnant and whether he was concerned about that fact, Mr. Mohamed replied that his wife was throwing things at him and he did not even hit her. Bhabha J. found that Mr. Mohamed likely knew that his wife was pregnant when he struck her.

[136] Mr. Mohamed admitted to Dr. Booth that at the time he had about five or six beers but did not feel that he was drunk. When asked whether he felt that his drinking was problematic, he stated that he believes a drinking problem is when a person drinks daily and added that he has not had issues with drinking in the past. As Dr. Booth said in his evidence, Mr. Mohamed did not show any insight to the role that alcohol played in this offence and, as Mr. Wilson submitted, his version of the event minimized the seriousness of the incident and his role and instead focused on the behaviour of his wife, suggesting that he was defending himself.

[137] Justice Bhabha sentenced Mr. Mohamed to a $10 fine in addition to a credit for 134 days of pre-sentence detention and 12 months probation. During sentencing, Mr. Mohamed was offered counselling for substance use, but he stated it was not an issue. He was ordered to attend anger management and/or The Partner Assault Response (“PAR”) Program and parenting skills. At that time, it was noted that his son was with Mr. Mohamed’s mother.

July 31, 2017 to November 3, 2018

[138] Between July 31, 2017 to the date when the predicate offences were committed, Mr. Mohamed was convicted and sentenced to a period equivalent to five months in custody for various thefts and breaches of court orders.

November 3, 2018

[139] Mr. Mohamed committed the predicate offences on November 3, 2018 and has remained in custody since his arrest on November 6, 2018.

[140] Mr. Mohamed’s version of the events as reported to Dr. Booth is as follows:

Mr. Mohamed stated that he had run into the victim at the bar on a few instances. He had seven or eight beers and a small bottle of Crown Royal Whiskey on the night and the morning of the offences. He denied that he sexually assaulted the victim and maintained that he has been wrongfully convicted of the offence. When asked why he continued to consume a rather large amount of alcohol given his history of being convicted of assaulting his partner when using alcohol he stated that he was drinking because it was a Friday night, after he had attended his program at the John Howard society.

September 3, 2021 through December 1, 2021

[141] A Security Assessment for Evaluation Risk (“SAFER”) provided as part of an incarceration summary for Mr. Mohamed evaluated him to be at a minimum risk of violent or frequent misconducts as at December 2, 2021. The summary states that the SAFER accurately assesses inmates' risk of violent or frequent misconducts and recommends a minimum, medium, or maximum-security level. The security level is automatically generated and updated using OTIS data. An inmate's SAFER security level is used to inform inmate placement and management decisions. Inmates are housed in units with other inmates of like security level. As this document was provided by Mr. Bryant after closing submissions, the only conclusion I can draw from it is that it would appear that in the period referred to, Mr. Mohamed has not been involved in any misconducts. I would add that I have no evidence that he has been involved in any misconducts while in custody since his arrest in November 2018.

The Evidence of Amina Qasim

[142] Ms. Qasim is Mr. Mohamed’s mother-in-law and is now the guardian of his four-year-old son. She testified that Adil is now in kindergarten and is autistic and suffers from ADHD. He is unable to speak. She does not know where her daughter is and is also caring for another child her daughter had. Ms. Qasim has been caring for Adil since July 2017. She receives government support to help care for him.

[143] Ms. Qasim spoke highly of Mr. Mohamed. She has known him since 2014. He respects her and she believes him to be a very honest person. However, she did not know that Mr. Mohamed went to jail for assaulting her daughter. She did not know why he is currently in jail.

[144] Ms. Qasim testified that he is a very good man and father and that in her opinion he has “changed”. He calls her often and talks to her about his son and thanks her for caring for him. He wants to see his son, but this is difficult for her as she does not have a car or a ride to get to the institution. She has taken Adil there where he sees his father on video but then Adil cries as he wants to see his father. Ms. Qasim said that Adil needs his father’s help.

Dr. Booth’s Assessment Report and his Evidence at the Hearing

[145] In addition to Dr. Booth’s Assessment Report, he was examined by counsel. I will provide an overall summary here of Dr. Booth’s opinions and set out specific aspects that are particularly relevant to the issues I must consider. In addition, I will set out concerns Mr. Bryant raised both in his cross-examination of Dr. Booth and in his written submissions in support of his submission that I should consider the conclusions from Dr. Booth’s assessment carefully with a full understanding of its limitations and the setting in which the assessment was undertaken.

Information Available to Dr. Booth and How the Assessment was Conducted

[146] Dr. Booth arranged for Mr. Mohamed to be transferred to the Ottawa Carleton Detention Centre (“OCDC”) in the hope he could arrange to see him in person, rather than attempting a virtual assessment at the Toronto South Detention Centre (“TSDC”). The OCDC also has the benefit of an outreach clinic with a very experienced mental health nurse, named Amber. However, Dr. Booth was not able to see Mr. Mohamed in person, given COVID restrictions. Furthermore, Dr. Booth had to see Mr. Mohamed on a few consecutive part days at the Royal Ottawa Mental Health Centre - Forensic Outpatient Unit on March 11, 18, and 25, 2021 through virtual technology via the Ontario Telehealth Network (“OTN”) given the limited availability of virtual assessment time slots at the OCDC. Dr. Booth testified that he was able to get a good view of Mr. Mohamed during the interviews although he was wearing a mask during the evaluations.

[147] Dr. Booth had the information in the Record before me, some additional records referred to in the Assessment Report, including additional health records for Mr. Mohamed (although they did not include the prior two plus years), and the information from his interview of Mr. Cusen. Dr. Booth also had an opportunity to speak to Amber at the OCDC and she told him about concerns she and the guards had concerning Mr. Mohamed’s mental state which he considered. As well, Dr. Booth had a clinical note by Dr. Floyd Wood, a forensic psychiatrist, who does psychiatric outreach to OCDC and who was able to see Mr. Mohamed briefly at OCDC in person, in addition to some information from counsel. The information in Dr. Booth’s Assessment Report is also based on the self-report of Mr. Mohamed unless otherwise stated, although in the opinion of Dr. Booth, his reliability is questionable.

[148] Dr. Booth advised that attempts to administer standardized questionnaires were problematic given Mr. Mohamed’s mental health issues. He confirmed with Amber that Mr. Mohamed really had not been able to participate reasonably in terms of completing questionnaires. Mr. Mohamed had several sessions of trying to complete questionnaires that would usually take a couple of hours, but he was unable to complete most of them. It took Mr. Mohamed more than four hours to do a couple of pages from a questionnaire package that usually takes about one hour to complete. His approach to questionnaires also appeared to Dr. Booth to be somewhat random, making the reliability limited. In addition to the time Mr. Mohamed needed to complete the questionnaires, Mr. Mohamed appeared to have a “non-collaborative approach”, marking down the middle of the page for most of his answers. This further prolonged the usual assessment period and delayed Dr. Booth’s Assessment Report. Given the issues with Mr. Mohamed completing the questionnaires, Dr. Booth stated the results are probably invalid, but he included them in his Assessment Report for thoroughness. Neither counsel asked any questions about these results, and I have not relied upon them either.

[149] Dr. Booth testified that he prefers a single interview because of the practicality of it and the fact that he can sometimes gather different information from a prolonged interview. In cross-examination, he added that he would have preferred to have put Mr. Mohamed under the stress of a whole day interview so he could test his ability to handle a normal interaction with others. A full day interview would also give Dr. Booth a chance to assess cognitive abilities since by the end of the day people get a little bit fatigued and distracted and need breaks and that is a sign of cognitive fatigue.

[150] Mr. Bryant submitted that conducting a clinical assessment under these conditions was problematic for several reasons. It is his position that because the assessment was not done in person, but over the OTN, the opportunity to observe ordinary visual cues was missing and further exacerbated by the fact Mr. Mohamed was wearing a mask throughout each interview. He argues that because it was spread over three days rather than one long session, the opportunity to build any rapport was also nonexistent and the ability to ensure that Mr. Mohamed stayed focussed was lost.

[151] Dr. Booth admits in his Assessment Report that Mr. Mohamed’s affect was difficult to assess through video but was noted by Dr. Wood to be restricted, and that, overall, he was blunted with “irritability and unmodulated affect at times”. When these issues were raised with Dr. Booth in cross-examination, he acknowledged that the use of the OTN limited his ability to observe subtle findings that might otherwise be visible during an in-person interview, precluded an "emotional connection" with Mr. Mohamed, and impeded his ability to conduct a single lengthy interview, as was his preferred practice. Dr. Booth admitted that his assessment of Mr. Mohamed was not as good an assessment as an in-person assessment. However, he also testified that despite the technical limitations, given the file review, the extensive information available, in addition to his interviews of Mr. Mohamed, that he did not feel that these limitations impacted on his ability to conduct his assessment or the validity of the conclusions he has drawn as a result. He said that he was able to come up with opinions that he feels are supportable.

[152] Mr. Bryant also argued that Mr. Mohamed had been in custody since his arrest in November 2018 and during that time he had been subject to his preliminary hearing, his trial, a further hearing to determine whether an assessment should be ordered, and now this hearing. He had been detained at the TSDC, the OCDC, back to the TSDC, and now the Toronto East Detention Centre. In addition, the last 21 months were spent under health precautions mandated by the pandemic which resulted in restrictions to visits and limited what programming is ordinarily available. Mr. Bryant submitted that these stressors were particularly acute.

[153] I have no evidence from Mr. Mohamed about how any stress from being incarcerated perhaps due to lockdowns or the pandemic affected him at the time of the assessment as is often given at a sentencing hearing. Dr. Booth was clearly alive to this issue, however. When asked in cross-examination if the stress of the pandemic had impacted his assessment of Mr. Mohamed, Dr. Booth testified that there is certainly a link between stress and mental health, but that Mr. Mohamed had obviously shown signs of psychosis on at least two occasions outside of the pandemic, back in the mid-2000s and then in 2015 and possibly other times as well. Dr. Booth admitted, however, that the stress of the pandemic could be a factor in terms of showing some relapse of those symptoms, recognizing even without a pandemic that Mr. Mohamed would have a high risk of relapse.

[154] Dr. Booth also testified that instead of telling Mr. Mohamed outright that he thought he was suffering from schizophrenia, he said instead that he was worried that maybe the stress of being in jail, as well as the stress of the trial and the transfer might be influencing how he was thinking in order to explain to him that sometimes when people have stress one of the responses is they can start to have slow thinking or get distracted. However, Mr. Mohamed was not open to that idea whatsoever.

[155] Given this evidence of Dr. Booth, I do not accept any suggestion that he did not appreciate that Mr. Mohamed was under stress during the assessment because of these issues raised by Mr. Bryant and he clearly took that into account in forming his opinions.

Mr. Mohamed’s Mental State During the Assessment

[156] Dr. Booth spoke to Amber before he interviewed Mr. Mohamed. She advised him that she and guards at the OCDC had observed Mr. Mohamed talking and laughing to himself on multiple occasions, but he would deny this to them. They had also seen a similar disorganized thinking pattern with long pauses before responding that Dr. Booth saw during the assessment.

[157] Dr. Booth testified that into the assessment he started observing evidence of serious mental health issues and then as the assessment proceeded there was increasing evidence that there were mental health symptoms. Dr. Booth explained that Mr. Mohamed was often showing signs of a disrupted mental state, including “thought blocking,” which Dr. Booth said is a sign that the brain is very dysfunctional because a thought disappears. Mr. Mohamed was inattentive and distracted, often not seeming to hear questions and Dr. Booth had to repeat questions frequently. Mr. Mohamed would stare blankly and there would be very slow thinking and long lags in his responses. When distracted, in Dr. Booth’s opinion, Mr. Mohamed appeared to be listening to likely auditory hallucinations or other internal stimuli. Even basic questions appeared confusing at times.

[158] Dr. Booth testified that Mr. Mohamed was often not “collaborating” with him by which he meant that Mr. Mohamed would stop engaging with him and responding to questions. He would say, "I don't know" for much of his personal history. He was vague and minimizing problems. The information that he did give often contradicted file information. In his opinion, Mr. Mohamed’s mental health disorder was interfering with his ability to collaborate. Dr. Booth did not have the impression that Mr. Mohamed was behaving this way to be difficult with him.

[159] Dr. Booth also testified that Mr. Mohamed appeared apathetic and that he showed signs of dysprosody, which is talking more like a robot and not showing emotion. At times, however, Mr. Mohamed could "pull himself together" for longer periods of time.

[160] Given Mr. Mohamed’s obvious symptoms of mental illness, Dr. Booth asked Dr. Wood to see Mr. Mohamed in person and he did so on March 25, 2021. Despite observations by the OCDC staff showing likely psychosis, Mr. Mohamed denied all mental health problems to Dr. Wood and was not interested in treatment. In Dr. Wood’s brief evaluation, there were no clear signs of mental health issues and no signs that he was distracted by internal stimuli. Dr. Wood did note a "restrained" affect with a cooperative approach, although Mr. Mohamed did seem somewhat guarded. Given Dr. Booth noted this, I presume Mr. Mohamed was not masked during this interview.

[161] Dr. Booth also confronted Mr. Mohamed about the observations by OCDC staff during the assessment and Mr. Mohamed denied any psychiatric problems. Dr. Booth reported that despite Mr. Mohamed’s obvious distraction in the interview and being distracted by internal stimuli, he denied hearing auditory hallucinations.

[162] Mr. Bryant submitted that since Dr. Booth believed that Mr. Mohamed’s non-collaboration was because of an ongoing mental illness, there is something inherently wrong in continuing the assessment given the episodic nature of the manifestations of the schizophrenia and that Dr. Booth should have waited to complete the assessment until Mr. Mohamed got better and his symptoms had subsided.

[163] When asked about this in cross-examination, Dr. Booth testified that he did not see his role as being fair or unfair but rather to execute the mandate of the Court, which is to conduct a risk assessment. Part of the assessment is observing the symptoms of mental illness displayed by Mr. Mohamed "to their fullest and clarifying them." He was able to get some information from Mr. Mohamed and the symptoms were just part of the assessment. This was why he asked Dr. Wood to try to see if there was something there that could warrant some treatment. Dr. Booth explained that he was not Mr. Mohamed's treating physician. His role was not to restore Mr. Mohamed to his "best state" to do the assessment. Dr. Booth testified that he was there to assess Mr. Mohamed, a component of which was a diagnosis which may relate to risk. Halting that assessment because he was displaying signs of mental illness would have inhibited the ability of Dr. Booth to conduct that critical aspect of his assessment.

[164] In my view, the reasons Dr. Booth gave for proceeding with the assessment despite his opinion that Mr. Mohamed was displaying symptoms of mental illness make sense. The determination of whether Mr. Mohamed suffers from a mental illness was one of the conditions Dr. Booth was to assess. As he said, it was not his role to restore Mr. Mohamed to his best state but rather to assess the man who presented for the assessment.

[165] Even accepting that the conditions for the assessment of Mr. Mohamed were not ideal, the fact is that in dangerous offender proceedings, compared to other cases, Dr. Booth has a great deal of information to support his opinions. It is not uncommon for courts to be compelled to consider these issues where an offender has refused to participate at all in the assessment or, as Mr. Mohamed did, not testify at the hearing.

[166] Furthermore, following the completion of the Assessment Report, counsel discussed the symptoms of mental illness observed by Dr. Booth during his interviews with Mr. Mohamed and the impact those symptoms may have had on Dr. Booth’s assessment. There is a formal admission that the Crown offered to make Dr. Booth available to re-interview Mr. Mohamed to attempt to address any concerns. Mr. Bryant on behalf of Mr. Mohamed declined that offer. As Mr. Wilson submitted, if Mr. Mohamed is of the view that the decision to proceed with the assessment at the time Dr. Booth did, produced inaccurate results, or was unfair in any way, he could have accepted this offer. I would have preferred that Mr. Mohamed had accepted this offer, as the more information I have to make this important decision the better. Some of the concerns raised about how and when the assessment was done might have been addressed. That said, Mr. Mohamed was not obliged to submit to a further assessment, and I must make my decision on the evidence I do have.

[167] The Court of Appeal in R. v. R.S., 2020 ONCA 765, 153 O.R. (3d) 185, considered a similar situation. In that case, the offender refused to participate at all in the assessment or testify at the hearing, as was his right. This case was not referred to counsel and was one I stumbled upon, but it reinforces the conclusions I had already come to. I did not see the need to bring counsel back to address it. In R.S., the sentencing judge designated the offender as a dangerous offender and found that a fit sentence was an indeterminate sentence. One of the issues on appeal was whether the risk could be managed by treatment. On appeal, the appellant raised speculative possibilities that could not be established or negated because of his decision not to participate in the assessment process. The Court held, at para. 38, that the appellant had no obligation to participate, but having not done so, he could not appeal to the “evidence that might have been”. In my view, Mr. Mohamed cannot now ask me to speculate how his assessment might have proceeded had he been assessed at a different time or under different conditions.

Dr. Booth’s Diagnoses as per DSM-5

[168] Dr. Booth’s diagnoses are based on strict criteria outlined in the Diagnostic and Statistical Manual of Mental Disorders, 5th ed., issued by the American Psychiatric Association, (Washington DC: American Psychiatric Publishing, 2013) (“DSM-5”).

[169] Dr. Booth states in his Assessment Report that in Mr. Mohamed's case, a clear diagnosis is difficult as Mr. Mohamed was not able to fully collaborate with the assessment. He minimized and denied obvious symptoms. Further, Dr. Booth suspects that Mr. Mohamed can hide his symptoms for periods of time, as he likely did when he met with Dr. Wood. Dr. Booth also observed that there were times during the assessment where Mr. Mohamed did not seem too unwell and, therefore, in his opinion, Mr. Mohamed is likely able to again, "hold it together" and show as mentally stable to a non-discerning eye.

[170] With this caveat, it is Dr. Booth’s psychiatric opinion is that Mr. Mohamed “likely” has the following diagnoses:

a) Likely schizophrenia versus less likely other psychotic illness;

b) Antisocial personality disorder;

c) Possible social anxiety and ADHD premorbidly with some residual adult symptoms;

d) Likely alcohol use disorder, moderate to severe;

e) Likely cocaine use disorder, severe; and

f) Cannabis use disorder, mild to moderate.

[171] Dr. Booth explained the qualification of "likely" in relation to the diagnosis of schizophrenia as being due to the subtle nature of the signs observed in Mr. Mohamed. In Mr. Mohamed’s case the symptoms are not very obvious, and in Dr. Booth’s opinion, other mental health professionals might miss the diagnosis. When asked to give us a sense of his level of confidence that Mr. Mohamed suffers from schizophrenia, Dr. Booth answered that although others may disagree, based on his experience and given Mr. Mohamed’s overall presentation, he would put it at 80-90% that this is the correct diagnosis – what he called a “reasonable medical certainty”.

[172] In his Assessment Report and in his testimony, Dr. Booth explained that he relied upon that fact that the records suggest that Mr. Mohamed might have been suffering from intermittent episodes of psychosis dating back as far as 2008 that was more apparent in 2015 and during his assessment. I have set out the records that Dr. Booth relied upon in my Chronology. As for the intermittent nature of the psychosis, Dr. Booth reports that, at times, even without treatment, individuals can show episodes of more florid psychosis that appear to improve spontaneously, although over time their inter-episode function is one of a deteriorating course.

[173] In his Assessment Report, Dr. Booth states that one of the highest single predictors of violent recidivism is psychopathy. He goes on to state that: “Psychopathy is a type of personality construct thought to increase recidivism and worsen prognosis in treatment. That said, many individuals with psychopathy do not reoffend and do seem to respond to treatment.” When asked if there is any interrelationship between psychopathy as suffered by Mr. Mohamed and his offending behaviour, Dr. Booth testified that individuals with psychopathy tend to have very loose boundaries over all social norms and that psychopathy for Mr. Mohamed opens up a spectrum of not only ongoing criminality, but also significant physical violence and significant sexual violence. However, he went on to testify that he did not see a direct link between Mr. Mohamed’s psychosis and the likely diagnosis of schizophrenia and Mr. Mohamed’s offending behaviour but that, instead, it may be an indirect factor.

[174] With respect to the diagnosis of antisocial personality disorder, Dr. Booth defined personality disorders as "hardwired ways of navigating interpersonal situations and problems". He identified Mr. Mohamed as suffering from an anti-social personality disorder within the "cluster B personality disorders", which are often characterized by high emotions and high interpersonal dysfunction. Individuals suffering from anti-social personality disorder can present with impulsivity, lack of planning and anger problems, unnecessary violence, distorted empathy, law breaking behaviour, and substance use.

[175] In his testimony, Dr. Booth drew a "direct link" between Mr. Mohamed's anti-social personality diagnosis and his offending behaviour. Part of that diagnosis is often empathy deficits. Although Mr. Mohamed, to his credit, has at times voiced some regret and some empathy, and some awareness of the fact that, for example, the individuals that he stabbed, might have some nightmares, Dr. Booth did not see evidence that this had “sunk in to a significant emotional level”. According to Dr. Booth, Mr. Mohamed also tended to minimize any violence in his record. In his opinion, there is a degree of that lack of empathy and a lack of caring about societal rules that goes along with antisocial personality that similarly contributes to Mr. Mohamed’s ongoing violence risk. Dr. Booth testified that, "significant anti-social traits, in addition to an anti-social personality disorder, is sort of highly predictive of future recidivism."

[176] Dr. Booth has also diagnosed Mr. Mohamed as suffering from a likely alcohol use disorder, moderate to severe, as well as a likely cocaine disorder that is severe. Dr. Booth defined the main element of a use disorder as excessive use of the identified substance. He testified that a diagnosis of antisocial personality disorder also includes risk taking behaviours, including substances. Evident in that excessive use is a loss of the ability to control consumption, which results in other dysfunction. Dr. Booth states in his Assessment Report that Mr. Mohamed’s degree of violence is quite severe, and he uses violence to achieve his goals. The use of alcohol increases his impulsivity, and the intensity of his violence. Dr. Booth testified that for Mr. Mohamed, the obvious route to this diagnosis is that Mr. Mohamed drinks to excess and when he does so, he engages in violent criminality that results in him being incarcerated. Despite this, Mr. Mohamed has continued to consume alcohol.

[177] On the positive side, Dr. Booth states that Mr. Mohamed's family does appear to be supportive. However, in his opinion, Mr. Mohamed’s longstanding criminality and the inability to collaborate with mental health treatment, especially in the jail environment, would translate to a poor prognosis for his future mental health.

Dr. Booth’s Opinion on the Prospect of Successfully Treating Mr. Mohamed’s Mental Illnesses

[178] With respect to the prospect of treatment, during his testimony, when asked if Mr. Mohamed can be treated, Dr. Booth stated:

I think the prognosis at this point based on the file information and my interview would be poor in terms of being motivated in the appropriate way to become abstinent and maintain his abstinence in terms of addressing his underlying psychotic illness and in terms of making meaningful changes in his antisociality [sic] and his other criminal behaviours. So at this point, again I think the prognosis is not positive.

[179] In addition, Dr. Booth testified that there are other negative prognostic factors for Mr. Mohamed, including the denial of substance problems, the minimization of violence, the lack of insight around his criminogenic needs, and a lack of motivation to improve.

[180] During his testimony, Dr. Booth was asked, “Again, in your opinion, is there any evidence to suggest that Mr. Mohamed can overcome his resort to violence?”, to which Dr. Booth responded:

I would acknowledge that Mr. Mohamed certainly did complete … back in the mid-2000s the high intensity violence program. He again was noted to have had understood some of the concepts. Again, I think the evidence would show that he didn’t benefit significantly from those - with respect to completing the program didn’t benefit significantly given his ongoing violence. Again, to his credit, he did also complete the repeat program of medium intensity and the maintenance program afterwards, again, with comments by you know, individuals at the time saying that he’d seemed to get some of those concepts and seemed to benefit similarly with the substance treatment program.

Again, going against that is the fact that he continues to show a pattern of substance abuse and criminality despite those interventions. So with that on the whole, I don’t see significant evidence that would suggest that moving forward he’s likely to change or benefit from those intervention strategies. [Emphasis Added]

[181] In his later interviews, when Dr. Booth suggested to Mr. Mohamed that he had a likely diagnosis of schizophrenia or some other stress-related psychosis and recommended that he consider medications, Mr. Mohamed again minimized mental health issues and was very clear that he had no intention of taking medications as he did not believe himself to have any problems. When Dr. Booth suggested to Mr. Mohamed that he take some medications to help him with the stress, he said again that he did not need medications, had no mental health issues, and he was not open to that option.

[182] In addition to Mr. Mohamed’s lack of insight and his refusal to date to accept treatment, such as medication for his schizophrenia, Dr. Booth testified that every episode of psychosis causes brain damage and that what he often sees is working memory and other cognitive function goes down with the psychosis. Even without treatment, a patient will improve after an episode, but they do not get back to where they were prior to that psychosis in terms of total function. Even if a patient is treated after the first episode, they often do not fully recover. With each episode, there is further deterioration of cognitive function.

[183] Dr. Booth testified that since Mr. Mohamed appears to have three documented episodes and possibly others, his overall function would be expected to be lower than had he not had those episodes. That will pose a barrier in terms of fully benefitting from treatment, although provided he is not in a florid psychosis, he would still be able to reasonably participate in treatment from a psychiatric point of view.

[184] Dr. Booth did agree that when patients recover from a psychosis, once past that episode many can recognize, “oh, I wasn’t thinking very clearly.” He agreed that while one is in a nonpsychotic state, there might well be a better opportunity to gain insight into one’s difficulties. However, there is still a percentage of people that do not recall how unwell they were even when they get well because their brain was not functioning. For Mr. Mohamed, Dr. Booth testified that he suspects he would be saying “well, that’s just ‘cause I was stressed” and “oh, it wasn’t all that bad” and that he would not have a lot of insight.

[185] When it was put to Dr. Booth that we would not know this until Mr. Mohamed had been given the opportunity, Dr. Booth responded that he already had two opportunities, and there is documentation of healthcare providers seeking him out when he is in the illness state and, following that state there is no evidence that he sought out any sort of treatment for those illness states. In addition, when Dr. Booth saw Mr. Mohamed, he was denying any previous mental health issues whatsoever. But Dr. Booth did admit that this could change in the future.

[186] Dr. Booth testified that it is very difficult to initiate treatment in such an individual who is not open to it. Given Mr. Mohamed’s lack of insight into his illness and his ongoing resistance to treatment, it would be difficult to treat him in a correctional setting. As to whether a treatment could be forced upon Mr. Mohamed, Dr. Booth testified that somebody like Mr. Mohamed would be “quietly psychotic” and not causing problems in the institution due to psychosis; not like smearing feces and screaming out. In Dr. Booth’s opinion, barring those signs of illness, it would be very difficult within both the provincial and the federal correctional environment to impose treatment.

[187] When asked about whether Mr. Mohamed’s antisocial personality disorder could be treated, Dr. Booth testified that there is no specific intervention that gets rid of antisocial personality disorder. Only some of those personality traits can be mitigated with psychotherapy for motivated individuals to address some of those factors that are part of the personality, but the personality disorder does not go away.

[188] When asked if a substance use disorder be treated, Dr. Booth testified that it can for many people when they are motivated and that there are successful treatments, in terms of motivational interviewing, and there are some medications that motivated individuals could take to reduce their alcohol urges. As for Mr. Mohamed, however, Dr. Booth testified that the prognosis, based on the file information and his interview, is poor in terms of Mr. Mohamed being motivated in the appropriate way to become abstinent and maintain his abstinence in terms of addressing his underlying psychotic illness and in terms of making meaningful changes in his antisocial and other criminal behaviours.

Dr. Booth’s Risk Assessment

[189] Dr. Booth used well accepted risk assessment methods in evaluating the risk Mr. Mohamed poses for recidivism. Before discussing the methods that Dr. Booth used in this case, he noted that when considering the risk that an individual poses, it is important to consider the likelihood of risk (i.e., how likely Mr. Mohamed is to commit any sort of violence within a certain time-period), the frequency (i.e., how often he might commit violence), and finally the likely magnitude of violence (i.e., how much harm might be done). What is also relevant to the issues before me is that some individuals may be "very high risk" but manageable through treatment, supervision, and other interventions. Other individuals could be fairly low risk, but not have their risk easily or practically managed.

Actuarial Risk Evaluations

[190] One technique for evaluating a person's risk of harm involves using actuarial (i.e., statistical) methods to compare a limited number of the individual's historical risk factors with large comparison groups. Dr. Booth states that the advantage of the actuarial risk assessment method is that it allows the comparison of the risk posed by a particular offender to other individuals in a manner that is devoid of any emotional judgment.

[191] One limitation is that the methods focus on likelihood only and do not address the magnitude of the potential violence and they do not account for changes that may occur in an individual over time, such as successful treatment, control of use of substances, and supervision in the community. The methods also have the potential to ignore factors that are of particular importance to the risk posed by a given individual. Despite these limitations, Dr. Booth explains in his report that "research has shown actuarial methods do provide a fairly reliable estimate of risk." This opinion was not challenged.

a) The Violence Risk Appraisal Guide-Revised

[192] The Violence Risk Appraisal Guide – Revised (“VRAG-R”) is one actuarial measure that provides an estimate of the risk of future violent recidivism in comparison populations. Dr. Booth states that it is a fairly accurate estimate of risk about 75% of the time. The VRAG-R is meant to be used for both hands-on violent offenders and hands-on sexual offenders to estimate the risk of any violent re-offence (sexual or non-sexual).

[193] Mr. Mohamed's score on the VRAG-R places him at the 99th percentile (i.e., only 1% of offenders in the comparison sample had higher scores). He is also in the highest risk category, suggesting a very high risk of future violent offending. Dr. Booth states that given the opportunity, 76% of offenders within the same risk category would be expected to violently reoffend within five years and 90% would be expected to violently reoffend within 15 years. While suggesting likelihood of recidivism, the instrument does not inform about severity of violence.

b) Static-99R

[194] The Static-99R is one of the commonly used actuarial tools to assess the risk of sexual re-offence. It is generally thought to be about 75% accurate. Based on his current age of 37, Mr. Mohamed scored in the Level IVb (well above average risk category). This means that 17.6% of offenders in this category will commit another sexual offence in five years and 25% will within 10 years. It is generally accepted that risk drops with age. Mr. Mohamed's score at age 40 would drop him into the Level IVa (above average risk) and at age 60 to the Level III (average risk) category.

c) Static-2002R

[195] The Static-2002R provides a second useful estimate of risk of a future sexual re-offence, although it is unclear whether it is more accurate than the Static-99R. Based on his current age, Mr. Mohamed would score in the Level IVa (above average risk) category. In comparison populations, the recidivism rate in the routine correctional sample was above 19.2% at five years. This is about 2.6 times the risk of the average sexual offender. Mr. Mohamed's score at age 60 would drop him into the Level III (average risk) category.

Hare Psychopathy Checklist

[196] A diagnosis of psychopathy is given to individuals scoring equal to or more than 30 on the Hare Psychopathy Checklist (“PCL-R”). Dr. Booth states in his Assessment Report that one of the highest single predictors of violent recidivism is psychopathy. Psychopathy is a type of personality construct thought to increase recidivism and worsen prognosis in treatment. In Dr. Booth’s opinion, the PCL-R should be done in all dangerous offender and high-level risk assessments because it is a very important factor and seems to be one of the highest predictors of violent recidivism and sexual violent recidivism. Furthermore, the higher the score, the more likely it is that an offender will run into difficulties in treatment and not respond to treatment. Dr. Booth recognizes, however, that there can be exceptions. Many individuals with psychopathy do not reoffend and still do well in terms of treatment. Dr. Booth explained the various hypotheses that explain why this is in his evidence at the hearing.

[197] On the PCL-R, Mr. Mohamed had a total score of 29.5 – corrected from 28 for an omitted item. This puts him in the 80th percentile. Thus, he is basically at the cut-off for psychopathy suggesting poor treatability. Dr. Booth testified, however, that 30 is not a magic number and it is not a black and white, but rather a spectrum (i.e., a grey sort of zone). That means that individuals who are closer to 30 would be higher risk than those far away from 30. On Factor 1, a reference to interpersonal factors such as superficially charming and lack of empathy, Mr. Mohamed scored at the 57th percentile. On Factor 2, a reference to impulsive and anger issues and a lack of social responsibility, he scored at the 91.5 percentile. Dr. Booth states that classic psychopathy with the interpersonal factors are usually higher on Factor 1 and plain criminals tend to be higher on Factor 2.

[198] Dr. Booth testified that, on average, someone with Mr. Mohamed’s scores would have more personality and interpersonal traits that are going to get in the way of successful treatment.

[199] In his Assessment Report, Dr. Booth notes that these scores are quite different than the ones obtained by Dr. Yokubynas in 2006 and 2012. Dr. Booth thinks those were estimates given Mr. Mohamed's history and presentation.

Structured Professional Judgment Risk Evaluation

[200] Structured Professional Judgement (“SPJ”) evaluates a person's risk by looking at factors known to increase a person's risk of sexual violence and reoffending. The total score does not predict recidivism and a single item could be highly relevant. Instead, the SPJ provides a framework for evaluating known risk factors and to guide developing a risk management plan. Under this category, Dr. Booth utilized the SVR-20 (sexual recidivism), the HCR-20 V-3 (violent recidivism), and the SAPROF (violence risk).

[201] Dr. Booth’s Assessment Report sets out how Mr. Mohamed scored on each of these instruments. The HCR-20 V-3 and SVR-20 suggested numerous risk factors that are unlikely to be managed. Mr. Mohamed has evidence of significant psychopathic features that suggest lack of treatment response.

[202] Mr. Mohamed has numerous factors for ongoing sexual offending. On the SVR-20, Dr. Booth concluded that Mr. Mohamed’s current sexual offending is likely part of a larger antisocial construct and overall violence risk as opposed to being a specific risk of sexual offending. On the HCR-20 V-3, Dr. Booth concluded that Mr. Mohamed has numerous risk factors historically and further factors in his clinical presentation that would impair his ability to manage his risk and that he currently shows a number of problems that would make future risk management problematic.

Structured Assessment of Protective Factors for Violence Risk

[203] The Structured Assessment of Protective Factors for Violence Risk (“SAPROF”) is a set of guidelines for the assessment of protective factors in evaluating an individual's risk for violence. Mr. Mohamed scored one out of a possible 34, suggesting very limited protective factors. However, these protective factors could be enhanced in treatment.

Specific Risk Factors in Mr. Mohamed's Case – Dr. Booth’s Clinical Judgment

[204] The final method Dr. Booth used to evaluate risk was to look at the specific details of Mr. Mohamed’s case and apply his clinical judgement. He states in his Assessment Report that clinical judgement can speak to issues not addressed in other methods, such as imminence of violence, severity/type of violence, likely victim type, mental health issues, specific personal factors, and other relevant factors including an individual's likely compliance with treatment and response to treatment.

[205] Dr. Booth sets out his opinion with respect to the specific risk factors in Mr. Mohamed’s case in detail in his Assessment Report. He gave evidence about it as well. In summary, he is of the opinion that:

a) In early adolescence, Mr. Mohamed gravitated to antisocial associates and activities as a distorted way to feel "accepted" and "competent."

b) He also started gravitating toward substances like alcohol and cannabis.

c) He showed significant escalating criminality and then significant violence in his late adolescence, despite the supports in the youth justice system.

d) As an adult, Mr. Mohamed has shown recurrent criminality, recurrent significant violence, and now has escalated to sexual violence despite intensive violence prevention treatment programs.

e) He has shown signs of likely severe and persistent mental illness in the form of a recurrent psychotic disorder, most likely schizophrenia. At the time of the assessment, he was in an “at-times subtle psychotic state”.

f) He has consistently denied, covered up, and minimized these symptoms. Other than a brief period in 2008-2009, Mr. Mohamed has not received any treatment for psychosis.

g) The reality is that given Mr. Mohamed’s lack of insight around his psychosis, the subtlety of his symptoms, and the difficulty of involuntarily treating inmates, it will be nearly impossible to stabilize his illness. As such, he will not be able to meaningfully participate in a comprehensive program designed to mitigate his risk.

h) Mr. Mohamed has not benefited from valiant efforts in terms of community reintegration and supervision and tries at half-way houses as would be imagined as part of a LTSO with graduated reintroduction to society.

[206] While many risk issues exist, Dr. Booth states that Mr. Mohamed does have some strengths:

a) His family has been supportive of him over the years, and they are generally prosocial. In my view this is an overstatement as it is only Mr. Cusen, Ms. Qasim and possibly his younger sister, who seem prepared to provide some support to Mr. Mohamed. Although Mr. Mohamed is close to Hasan, given Hasan participated in the sexual assaults of Ms. S. as I describe in my Judgment, he can certainly not provide his brother with any meaningful support. Mr. Mohamed is estranged from the rest of his family.

b) Mr. Mohamed did voice some connection with his son. As Mr. Bryant submitted, modest though it may be, Mr. Mohamed has the current support of his mother-in-law, Ms. Qasim, and the evidence supports a finding that he has maintained an interest in his son and his wellbeing.

c) His cousin, Mr. Cusen, suggested that he would maintain some contact and try to assist financially.

d) Mr. Mohamed said that he had registered in a work program through John Howard Society, suggesting some potential motivation to work.

[207] I would add that Mr. Mohamed was able to obtain his Ontario Secondary School Diploma and a welding certificate while incarcerated despite his intellectual deficits. As Mr. Bryant submitted, it would appear that when Mr. Mohamed wants to put his mind to do something and do it well, he is more than capable of doing so (as is shown in his letter to the NPB in October 2013).

[208] Dr. Booth testified that his understanding, based on indirect knowledge, is that there are no meaningful programs in the detention centres during pre-sentence custody, and yet Mr. Mohamed produced two certificates for two programs that he completed while in detention: a Certificate of Completion for Supportive Relationships and a Certificate of Completion for Black Speaker Series Leadership. When asked if this was indicative of someone trying to keep themselves busy, Dr. Booth said he did not know if these are one-hour long courses or what their content is and what their entry requirements are. He agreed that these could be a sign of Mr. Mohamed keeping busy or more positive attempts to better oneself. Unfortunately, no one noticed that these certificates were not entered as exhibits. I have, however, seen many examples of these during sentencing submissions and, in my experience, they are always one-hour programs.

Summary of Dr. Booth’s Risk Assessment

[209] Given Dr. Booth’s experience in working with and assessing violent and sexual offenders, it is his psychiatric opinion that without any intervention or supervision, Mr. Mohamed will have difficulty exerting control over his violent and sexual impulses in the future – indeed, statistically he remains a high risk of future physical violence and sexual violence. In his Assessment Report, Dr. Booth states that this opinion is based on:

a) His VRAG-R score is 40 (possible range -34 to +46), placing him at the 99th percentile (i.e., only 1% of offenders in the comparison sample had higher scores). He is also in the highest risk category, suggesting a very high risk of future violent offending.

b) His Static-99R and Static-2002R place him in the Level IVb (well Above Average) risk category – this is the highest risk category. Of note, this risk will drop at age 60.

c) The HCR-20 and SVR-20 also suggested numerous risk factors that are unlikely to be managed. He has evidence of significant psychopathic features, suggesting lack of treatment response.

d) On the SAPROF, Mr. Mohamed showed almost no protective factors to mitigate his risk.

e) Mr. Mohamed has shown limited internal motivation to address his criminogenic needs. Despite previous treatment for violent offending, Mr. Mohamed is again before the Court with violent and sexually violent offences.

f) Mr. Mohamed is not motivated to be open about and address his documented substance issues.

g) Mr. Mohamed has severe mental health issues which will seriously hinder his ability to access and benefit from programs designed to manage his criminal risk factors. He is also highly unlikely to get his mental health issues treated.

[210] Mr. Bryant submitted that “much” of Dr. Booth’s report is based on the use of static assessment tools which have a significant subjective component. Nevertheless, accepting them for what they are, Dr. Booth acknowledged their limitations and the degree of certainty that the scores revealed. Not one had a certainty approaching 100%. Valuable though they may have been in assisting Dr. Booth in determining whether Mr. Mohamed presents a high risk and the appropriateness of a finding that Mr. Mohamed should be designated as a dangerous offender, Mr. Bryant submitted that they do not foreclose the appropriateness of a determinant sentence followed by a LTSO.

[211] I do not agree that “much” of Dr. Booth’s report is based on assessment tools which have a significant subjective component (although clearly some do). Dr. Booth is very experienced and used a number of assessment tools as any prudent clinician would do in addition to his clinical judgment in arriving at his opinions. He applied his knowledge and expertise and used an approach that is commonly used for these assessments of future risk; a combination of both actuarial and structured clinical methods. Dr. Booth never suggested that he could measure that risk with 100% certainty and in fact he expressly said that that is not possible. Had Dr. Booth done what Mr. Bryant implies he should have been able to do, his opinion would rightly have been viewed with suspicion.

[212] I have already dealt with the issues Mr. Bryant raised with the reliability of the opinions expressed by Dr. Booth. In my view, there is nothing in the evidence which should cause this Court to doubt the opinions offered by Dr. Booth with respect to the diagnosis of Mr. Mohamed’s mental illnesses, the risk he poses for future violent offending, and his prognosis for treatment and eventual control in the community.

Is Mr. Mohamed a Dangerous Offender?

[213] In R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, the Supreme Court of Canada set out many of the principles governing this application. At para. 18, the Court stated that the onus on the Crown is to demonstrate that Mr. Mohamed represents “a threat to the life, safety or physical or mental well-being of other persons” (emphasis in original) and that this requisite threat level requires that this Court evaluate the threat posed by Mr. Mohamed based on evidence establishing one of three standalone grounds of violent patterns of conduct as set out in s. 753(1) of the Criminal Code.

[214] As already stated, Mr. Bryant concedes that the Crown has proven that Mr. Mohamed meets the criteria of the Second Route – s. 753(1)(a)(ii) of the Criminal Code – and should thus be found to be a dangerous offender. I will, however, review the evidence and the relevant law to satisfy myself that the Crown has proven beyond a reasonable doubt that Mr. Wilson must be declared a dangerous offender pursuant to s. 753(1)(a)(ii).

[215] The route that counsel agree on to a finding of dangerous offender status, the Second Route, requires a pattern of persistent aggressive behaviour by Mr. Mohamed, of which the offence for which he has been convicted forms a part, showing a substantial degree of indifference on the part of Mr. Mohamed respecting the reasonably foreseeable consequences to other persons of his behaviour.

[216] With respect to the first component of this route, it requires a demonstration that there is persistent and aggressive behaviour. While Parliament has used “persistent” rather than “repetitive,” which is the word used in s. 753(1)(a)(i), the courts have generally defined the terms together, or at least in a synonymous fashion: see R. v. Naess, [2005] O.J. No. 936 (S.C.), at para. 61.

[217] The second component of this provision, "a substantial degree of indifference regarding the reasonably foreseeable consequences", requires some evidence that the offender had a conscious but uncaring awareness of causing harm to others through this patterned conduct: R. v. George, 1998 CanLII 5691 (BC CA), [1998] B.C.J. No. 1505 (C.A.), at para. 24.

[218] The Court in Boutilier also makes it clear that at the designation stage the Court must consider future treatment prospects and intractability. At para. 27 of Boutilier, the Court stated that:

Before designating a dangerous offender, a sentencing judge must still be satisfied on the evidence that “the offender poses a high likelihood of harmful recidivism and that his or her conduct is intractable. I understand ‘intractable’ conduct as meaning behaviour that the offender is unable to surmount. Through these two criteria, Parliament requires sentencing judges to conduct a prospective assessment of dangerousness.

[219] At para. 45 of Boutilier, the Court stated that at the designation stage treatability informs the decision on the threat posed by the offender and that:

[O]ffenders will not be designated as dangerous if their treatment prospects are so compelling that the sentencing judge cannot conclude beyond a reasonable doubt that they present a high likelihood of harmful recidivism or that their violent pattern is intractable.

[220] Mr. Bryant states in his written submissions that Mr. Mohamed accepts the analysis of the Crown with respect to s. 753(1)(a)(ii), as set out in the Crown’s factum at paras. 43-52 filed in support of the application for an assessment order, which is the section in the factum dealing with the Second Route. At para. 28 of his written submissions, Mr. Bryant states:

The Respondent concedes that the Crown has proven beyond a reasonable doubt not only that [Mr. Mohamed] poses a high likelihood of harmful recidivism by committing further violent offences, but also that he is intractable in that he has not to this point been able to surmount his aggressive behaviour and come to grips with the fact that he has shown a “substantial degree of indifference ... respecting the reasonable foreseeable consequences to other persons of his behaviour.” [Citing Boutilier, at para. 27].

[221] The language Mr. Bryant used to describe his concession that Mr. Mohamed must be designated a dangerous offender based on s. 753(1)(a)(ii) of the Criminal Code is identical to the language from para. 27 in Boutilier, which, as noted above, was cited by Mr. Bryant.

[222] Having considered all the evidence and the submissions of counsel, I agree that the Crown has proven beyond a reasonable doubt a pattern of persistent aggressive behaviour by Mr. Mohamed, of which the offences for which he has been convicted form a part. Since November 2003, Mr. Mohamed has engaged in a persistent pattern of significant violence, including the use of weapons, broken only by significant periods of time in custody. Despite spending most of his adult life in custody, Mr. Mohamed's aggressive violent behaviour has continued, undeterred. This pattern includes the violent robberies Mr. Mohamed was sentenced for in December 2004, when he stabbed a gas station clerk four times, and again in April 2008, when he engaged in four violent attacks on four different persons over a two-hour period, severely wounding two of them. While serving the sentence for those offences, Mr. Mohamed engaged in a violent attack on his fellow inmates in April 2011 in Joyceville. There are also reports of four incidents of violent behaviour in Millhaven. About a year after his release from custody in February 2016, Mr. Mohamed assaulted his pregnant girlfriend and, just over another year later, his pattern of violence escalated to include the offences of serious sexual violence before this Court.

[223] The Crown has also proven that by this offending behaviour, Mr. Mohamed has shown a substantial degree of indifference to the harm he is causing to the people he has assaulted. Mr. Mohamed has, at times, expressed some remorse for his offences. He has also pleaded guilty to most of the offences on his adult record although he denies committing the predicate offences. However, the fact that Mr. Mohamed would continue to engage in acts of extreme violence after having the opportunity to reflect on his past behaviour speaks to a substantial degree of indifference to the harm he has caused. He has displayed no real insight into the harm he has caused. In discussing his history of violent behaviour with Dr. Booth, Mr. Mohamed minimized his violent behaviour and showed no meaningful acknowledgment of the significant harm he had caused his victims.

[224] Furthermore, I agree with the submission of Mr. Wilson that during his attack on Ms. S., Mr. Mohamed displayed a callous disregard for her well-being, treating her as less than human. He repeatedly sexually assaulted her while choking her to the dangerous point of unconsciousness when she resisted. He forced her, under threat of further violence, to permit his brother to do the same. Throughout the course of the ordeal, he convinced Ms. S. that she was going to die. When she begged him not to sexually assault her on her son's bed, he ignored her pleas.

[225] I also find that the Crown has proven that in light of Mr. Mohamed’s pattern of offending behaviour, he poses a high likelihood of harmful recidivism by committing further violent offences that will cause death, injury, or severe psychological damage to others. Despite two significant penitentiary sentences, Mr. Mohamed’s pattern of violence continues. As already stated, Dr. Booth has opined that Mr. Mohamed will have difficulty exerting control over his violent and sexual impulses in the future and, statistically, he remains a high risk of future physical violence and sexual violence.

[226] I also find that the Crown has proven that Mr. Mohamed has been unable to control his future behaviour and that he has been unable to surmount it and that, as such, he is intractable. I will say more about this when I discuss what sentence is appropriate.

[227] Furthermore, I am satisfied that the Crown has proven beyond a reasonable doubt, based on the evidence and Dr. Booth’s opinion, that Mr. Mohamed’s treatment prospects are very poor. His pattern of violence has continued unaffected by the completion of programs designed to address his violent conduct. Another program designed to address the role that alcohol use plays as a contributing factor to his violence has also not resulted in success. Moreover, despite the efforts of corrections staff to re-integrate and rehabilitate him, Mr. Mohamed refuses treatment for his substance abuse and mental health issues, which he denies exist. His treatment prospects are far from compelling.

[228] For these reasons, I find Mr. Mohamed to be a dangerous offender pursuant to s. 753(1)(a) (ii) of the [Criminal ]Code. Having come to this conclusion – and given that the important and only issue in this case is what is the appropriate sentence to impose on Mr. Mohamed – although Mr. Wilson asked that I also rule on ss. 753(1)(a)(i) and (iii), I agree with Mr. Bryant that there is little point in doing so.

What is an Appropriate Sentence?

The Issue

[229] I turn then to the sole issue on this application: what sentence should be imposed on Mr. Mohamed? Subsections 753(4) and (4.1) of the [Criminal ]Code address the sentencing stage of the analysis and provide as follows:

(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.

(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. [Emphasis added.]

[230] The net effect of these provisions is that having made a dangerous offender designation, it is not mandatory to impose an indeterminate sentence. There is remedial discretion in s. 753(4) as to the appropriate sentence; however, that discretion is constrained by s. 753(4.1). In Boutilier, at para. 65, the Court stated that s. 753(4.1) is a codification of the exercise of discretion required by R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357, where the Supreme Court stated that the sentencing judge should impose an indeterminate period of detention “if, and only if, an indeterminate sentence is the least restrictive means by which to reduce the public threat posed by the offender to an acceptable level”: at para. 44.

[231] I appreciate the significance of this issue since imposing an indefinite sentence could result in Mr. Mohamed’s imprisonment for a very long period of time although I do not accept, as Mr. Bryant submitted, that it is necessarily “akin to simply taking a key to his cell and throwing it away or at best misplacing it”. Ms. Jaffer testified that although there would be no Statutory Release the parole board would have to review Mr. Mohamed’s continued incarceration seven years after his arrest, i.e., in November 2025 and every two years thereafter.

[232] This is obviously the reason why I must consider whether a determinate sentence followed by a LTSO would be sufficient. However, for a lesser sentence to “adequately protect the public” within the meaning of s. 753(4.1), there has to be a “reasonable expectation” that Mr. Mohamed’s risk of re-offending by committing a serious personal injury offence could be controlled by some means other than indefinite detention. As Code J. stated in R. v. Gibson, 2013 ONSC 589, at para. 57, “[t]he normal means of achieving such control are treatment, community supervision, or the deterrent effect of a fit determinate sentence.”

[233] Mr. Bryant did not suggest that a stand-alone determinate sentence would be a fit sentence in this case, and I agree. There is no evidence to suggest that the significant risk of future violence posed by Mr. Mohamed will cease following the passage of a finite period of incarceration. His criminal record makes it clear that lengthy sentences have not had a deterrent effect. Accordingly, the issue I must decide is whether to impose a determinate sentence to be followed by a LTSO or impose a sentence of detention in a penitentiary for an indeterminate period.

[234] Mr. Wilson submitted that there is nothing in the evidence to suggest that Mr. Mohamed’s risk can be adequately managed in the community on an LTSO. He says that any such suggestion is based on mere hope. Mr. Bryant submitted that for this Court to impose a determinate sentence followed by a LTSO under s. 735(4)(b) is “not a reach nor a mere expression of hope: it is plain and simply appropriate based on all the evidence heard at the hearing”.

Sentencing Principles

[235] As sentencing judge, I have an obligation to conduct a "thorough inquiry" into the possibility of control in the community and consider all the evidence presented during the hearing to determine the fittest sentence for Mr. Mohamed: Johnson, at para. 50. There is no obligation on either the Crown or Mr. Mohamed to "prove on any standard the adequate sentence one way or another": Boutilier, at para. 68, citing Joseph A. Neuberger, Assessing Dangerousness: Guide to the Dangerous Offender Application Process, loose-leaf (2017), (Toronto: Carswell, 2011), at p. 4-4.1.

[236] All the general sentencing principles and mandatory guidelines in ss. 718 to 718.2 of the Criminal Code continue to apply in sentencing under the dangerous offender provisions and I must consider them in order to choose a sentence that is fit for Mr. Mohamed: Boutilier, at paras. 53, 62; Johnson, at para. 23. In doing so, I must impose the least intrusive sentence required to achieve the primary purpose of protection of the public: Boutilier, at para. 60. Only if I exhaust all the least coercive sentencing options to address the question of risk based on the evidence should indeterminate detention in a penitentiary be imposed as it is the last option: Boutilier, at para. 69; Johnson, at para. 28.

[237] The designation stage is concerned with assessing the future threat posed by an offender, which is what I have done in concluding that Mr. Mohamed must be designated as a dangerous offender. I have already found that Mr. Mohamed poses a risk of harm to the public on the basis of a pattern of violent behaviour that is intractable, meaning that he is unable to surmount it. At para. 31, the Court in Boutilier stated that:

The penalty stage is concerned with imposing the appropriate sentence to manage the established threat. Though evidence may establish that an offender is unable to surmount his or her violent conduct, the sentencing judge must, at the penalty stage, turn his or her mind to whether the risk arising from the offender’s behaviour can be adequately managed outside of an indeterminate sentence. [Emphasis added.]

[238] Similarly, at the designation stage, treatability informed my decision on the threat posed by Mr. Mohamed. Here, it helps me determine the appropriate sentence “to manage this threat”: Boutilier, at para. 45. “To achieve the goal of protection of the public under the dangerous offender and long-term offender provisions, there must be evidence of treatability that is more than an expression of hope and that indicates that the specific offender can be treated within a definite period of time”: see R. v. McCallum, 2005 CanLII 8674 (ON CA), [2005] O.J. No. 1178 (C.A.), at para. 47 (emphasis added).

Is a Determinate Sentence Followed by a LTSO Appropriate?

[239] As already stated, pursuant to s. 753(4.1) of the Criminal Code, I must sentence Mr. Mohamed to an indeterminate sentence unless I am “satisfied by the evidence … 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” (emphasis added). In Johnson, at para. 29, the Court phrased it this way: would a LTSO reduce this threat to an acceptable level, even though the statutory criteria in s. 753(1) have been met?

[240] Counsel advised me that they are not aware of any cases apart from what I have set out that assist in the interpretation of s. 753(4.1). Mr. Wilson suggested that I must consider the plain meaning of the legislation.

[241] In finding Mr. Mohamed to be a dangerous offender, I have already found that he poses a high likelihood of harmful recidivism by committing further violent offences, that he has not to this point been able to surmount his aggressive behaviour, and that his violent behaviour is intractable and that he has shown a substantial degree of indifference respecting the reasonable, foreseeable consequences to other persons of his behaviour.

[242] In my view, based on Mr. Mohamed’s past criminal behaviour there is no doubt that he poses a strong likelihood of committing further violent offences, including serious personal injury offences as defined under s. 752 of the Criminal Code. Most of his past offences are characterized by extreme and unnecessary violence, which have resulted in significant harm to his victims. This is confirmed by Dr. Booth, who testified that although many of the risk assessment measures focus simply on likelihood, not on what type of harm, Mr. Mohamed's degree of violence is quite severe, and he uses violence to achieve his goals. The use of substances, namely alcohol, increase his impulsivity, and the intensity of his violence.

[243] The real issue in conducting this inquiry is to consider whether there is a reasonable expectation that treatment of Mr. Mohamed’s mental health issues – including his substance abuse issues – or community supervision on a LTSO would adequately protect the public and bring this risk to an acceptable level. In considering this question, I will also consider the potential impact of age-related decline on the risk posed by Mr. Mohamed.

[244] Although counsel agreed to bifurcate this sentencing hearing and only make submissions, if necessary, on the length of a determinate sentence, they agree that in the ordinary course, a sentence in the range of 10 years or more is warranted for the predicate offences committed by Mr. Mohamed. There would be a significant credit for pre-sentence custody but even if I assume that Mr. Mohamed would serve another 10 years from now, he would be 47 at the commencement of a LTSO, at which point he would be supervised in the community if I accept Mr. Bryant’s submission.

[245] In his Assessment Report, Dr. Booth offered the following psychiatric opinion concerning the potential for Mr. Mohamed's risk to be managed on a LTSO:

However, from a psychiatric perspective, it is my opinion that it is possible that even with a lengthy criminal sentence followed by a LTSO, he will remain a high risk. Further, he has shown that intensive support does not manage his risk as demonstrated by his parole revocation and recurrent serious offending while on probation. Thus, his risk cannot be managed in the community.

An indeterminate sentence would allow Mr. Mohamed the opportunity to access risk management programs. Ultimately, if he were able to decrease his risk to a manageable level, then community reintegration on parole would be an option. [Emphasis added.]

[246] I do not believe that Dr. Booth was examined on his use of the term “possible”. During oral closing submissions, I asked counsel about this statement that it is only “possible” that Mr. Mohamed would remain a high risk although the rest of this passage from his evidence suggests that his opinion is that Mr. Mohamed could not be managed in the community following a determinate sentence followed by a LTSO. In my view, as Mr. Wilson submitted, the statement has to read in context of all the evidence. It is clear when read as a whole, that Dr. Booth’s Assessment Report opines, based on the assessment that he did, that he does not think that the risk Mr. Mohamed poses for violent reoffending could be adequately managed in the community by way of a LTSO following a determinate sentence. In my view, this submission has merit.

[247] In addition to the evidence of Dr. Booth that I have already referred to that also makes this clear, in addressing the issue of Mr. Mohamed’s risk declining as he ages, Dr. Booth testified as follows:

With the caveat again that we discussed yesterday that you know, you can’t tell the future necessarily, but in Mr. Mohamed’s case he’s currently 37. He again has a number of negative prognostic factors that we had spoken of that you know again, my worry is that again, if I sort of estimate maybe a ten-year sentence possibly, that would bring him to 47 and then a ten year supervision order would bring him to 57. You know, I think over time the risk will decline … and again, sort of coming back to the indirect information that would come from the static measures, Static 99 and the Static 2002, as we see once he gets to 40 there is a drop and once he gets to 60 there would be a statistical drop but obviously at 57 he’s not 60 so I probably wouldn’t be able to say confidently that that would – even on the large scale – kind of show the drop that that would be in those studies.

Again, I would harken to some of those negative prognostic factors that he probably would stand out as one of the sort of group that don’t always follow that expected decline at the same rate and degree that one would hope. And so again, sort of moving forward usually when … I’m faced with somebody who has you know, a potential dangerous offender finding … Is this somebody that I could comfortably … reasonably recommend as being supervised by a long-term supervision order recognizing that of course my understanding at the end of that in the (indiscernible) they have a designation. There’s really no risk mitigation strategy that can be put into place.

And so in Mr. Mohamed’s case I wasn’t able to come to a conclusion that he would be safely managed in the community at the end of a ten year long-term supervision order without any sort of oversight that could be placed upon him. In saying that, of course, I also recognize that … there is some safety built into the sentencing scheme where … if an individual is under, for example, long-term supervision order, they do have with that opportunities to get into the indeterminate sentencing category and so when individuals, for example, not usually on breaches or things like that but if they show another sort of predicate designated offence while under that supervision, then there is a bit of a safety net that could intervene.

I get a little bit nervous again if it’s my opinion, as is with Mr. Mohamed’s case, that means that there’ll be another likely victim that would then sort of institute that second step whereas my understanding again of the sentencing scheme after seven years Mr. Mohamed would have the opportunity moving forward to demonstrate to the Parole Board that he’s actually made some significant changes that would allow him then to be, you know, in the community and have his risk mitigated. So again, that’s my thoughts around that burnout and heading into that 57 years old versus 60 or older. [Emphasis added].

[248] Based on the portion I have emphasized, and in the context of Dr. Booth’s evidence considered as a whole, I find that his opinion is that the risk of Mr. Mohamed re-offending in the community cannot be adequately managed by a determinate sentence followed by a LTSO. In any event, Dr. Booth is not an expert in the LTSO program and what can be done on an LTSO, and this is ultimately a decision I must make based on the law and all the evidence. As I will come to, I have the same concern that Dr. Booth expresses about the likelihood of there being another victim if Mr. Mohamed is ultimately released on a LTSO.

[249] I have already set out Dr. Booth’s opinion that the prognosis of successfully treating Mr. Mohamed’s mental illnesses and disorders is poor for various reasons, including his lack of insight and refusal to accept that he has any mental illness or that he needs treatment. The most that can be said is that Mr. Mohamed historically was willing to participate in treatment programs offered to him while incarcerated for violence prevention and substance abuse and he successfully completed those programs, but they had no impact on his offending behaviour. Given the evidence before me, there is no reason to believe that if Mr. Mohamed were given a determinate sentence, he would reverse course and accept his diagnosis and willingly seek treatment for his mental illness including his alcohol abuse problem and violence prevention.

[250] Mr. Bryant submitted that Dr. Booth’s projection of Mr. Mohamed’s present unwillingness to take currently available treatment to help manage the symptoms of his schizophrenia and his substance abuse “to infinity and beyond” is flawed because it fails to acknowledge that under a LTSO the PBC can mandate that appropriate medication be taken (failing which the LTSO would be suspended and possibly revoked resulting in indeterminate incarceration). Under a LTSO, conditions can indeed be imposed by the PBC that mandate the taking of medication for Mr. Mohamed’s mental health issues and his consumption of alcohol. In addition, I accept the evidence of Ms. Jaffer that measures can be put in place to monitor compliance, including urinalysis and screening devices. I therefore accept Mr. Bryant’s argument that the determination of what conditions should be imposed in a LTSO made by the PBC would include the recommendations of Dr. Booth and that the decision of this Court would be factored in.

[251] Mr. Bryant submitted that there would be no choice to opt out assuming that Mr. Mohamed wanted to obtain the benefits of some limited release from custody and not be detained in custody indeterminately. He argued that a different kind of “Damocles sword would be hanging over” Mr. Mohamed’s head – one never there before. It would be the real threat of indeterminate incarceration should he not follow the rules and accept treatment. Breach of any of those conditions would result in the LTSO being suspended and possibly revoked, resulting in an indeterminate sentence.

[252] There are a number of problems with this submission. First, Mr. Mohamed has consistently failed to adhere to the conditions of his release even though he must have known that by breaching a condition his release would be suspended, and he would be reincarcerated. I do not believe the threat of an indeterminate sentence would be any different. Mr. Mohamed is either unwilling or incapable of changing his violent behaviour.

[253] Second, Mr. Bryant’s submissions assume that Mr. Mohamed could become motivated enough to accept that he has suffers from various issues – such as anti-social personality disorder and substance abuse – that require willing participation in other forms of treatment – such as motivational therapy and psychotherapy – while he was still incarcerated. Given his mental illness and substance abuse disorders, there is no evidence that Mr. Mohamed could or would do this or that he is even be capable of this. This submission is simply too speculative. In fact, there is absolutely no evidence before me that even if Mr. Mohamed decided to accept that he has schizophrenia and take the appropriate medication for that mental illness that his anti-social personality disorder would in and of itself not still cause his criminal violent behaviour to continue. I have no evidence that in those circumstances Mr. Mohamed’s attitudes and anti-social behaviour that drove his offending behaviour would change enough to reduce his risk of violently offending to an acceptable level. If that is not correct, these are steps Mr. Mohamed could take while serving an indeterminate sentence so that he could show the PBC that he is ready for release on conditions.

[254] Finally, and most importantly, while the PBC could impose the conditions suggested by Mr. Bryant, as Mr. Wilson pointed out, at the end of his determinate sentence Mr. Mohamed would immediately be released to a community correctional centre and, although he would likely be subject to a curfew, he would nevertheless have access to the community during the day. For example, the PBC could not deny Mr. Mohamed’s release into the community at the time of his WED even if he had not already agreed to treatment and successfully completed a treatment program for his mental health issues and substance abuse disorders that had been shown to change his behaviour. Instead, once out in the community, any relapse by Mr. Mohamed by not taking his medication or consuming alcohol would only be caught after it happened, and so the suspension of his release would be reactive. Even if Mr. Mohamed was put back in custody a day later, there is still an unacceptable risk that he would re-offend and commit a serious personal injury offence because of his consumption of alcohol while he was out in the community.

[255] Mr. Bryant concedes that Mr. Mohamed’s criminal history is totally unenviable, spans two decades, and includes 18 separate sentencing proceedings involving some 44 offences including those for which he was convicted in these proceedings. Nevertheless, he submitted that a significant number of offences were in Youth Court, that Mr. Mohamed resolved all his adult matters prior to the predicate offences by entering pleas of guilty, that almost half of the offences were proceeded with by way of summary conviction and most of those did not involve any apparent violence,and, finally, that Mr. Mohamed admitted some facts during his testimony in this case supporting certain of his convictions.

[256] It is Mr. Bryant’s position that when considering Mr. Mohamed’s criminal history, it is not simply a numbers game. Instead, context matters. He says that the fact that Mr. Mohamed has accepted responsibility for his actions almost every time, “counts for something”. He also notes that there has been some expression of remorse and some flashes of insight into the “degree of harm he has caused.” It is Mr. Bryant’s position that it is Dr. Booth who has minimized Mr. Mohamed’s actions and their relevance, not Mr. Mohamed (as Dr. Booth testified to).

[257] I agree with Mr. Bryant that this is not a numbers game. However, his submission flies in the face of Mr. Mohamed’s concession that the Crown has proven beyond a reasonable doubt not only that he poses a high likelihood of harmful recidivism by committing further violent offences, but also that he is intractable in that he has not to this point been able to surmount his aggressive behaviour and come to grips with the fact that he has shown a substantial degree of indifference with respect to the harm he has caused those he has assaulted. It was on this basis that I found Mr. Mohamed to be a dangerous offender.

[258] Mr. Bryant submits that if Mr. Mohamed is given a determinant sentence he will be given “appropriate programming” at the appropriate time and he will receive it sooner than if he is given an indeterminate sentence. A delay in receiving these programs is one of the reasons he gives in support of his position that Mr. Mohamed should be given a determinate sentence. In Dr. Booth’s opinion, given the risk of re-offending that Mr. Mohamed poses, Mr. Mohamed would likely qualify for a high-intensity violence prevention programming while incarcerated. Ms. Jaffer’s evidence suggests that this programming would be very similar to the programs that Mr. Mohamed has already taken.

[259] It is true that due to limited resources, priority is given to offenders who are nearing statutory release and so Mr. Mohamed would likely not even have an opportunity to take any programming for a period of seven years. However, I do not see that as a relevant factor in my determination of an appropriate sentence. First, a delay in programing would not be a reason as that is a problem with the system which this Court can’t fix. I must consider what is necessary to protect the public. Furthermore, and most significantly, Mr. Mohamed’s previous successful completion of targeted, structured programming in the correctional setting designed to treat violent behaviour – for example, his completion of the VPP-HI program on April 10, 2006, and those thereafter as set out in the Chronology – had no impact on his pattern of violent offending. While Mr. Mohamed might have made some knowledge gains in violence prevention in the classroom setting, he has clearly not been willing to or capable of implementing those skills in the community to decrease the frequency and severity of his offending. In light of this evidence, I do not see how I could reasonably find that the prospect of Mr. Mohamed successfully completing more programs of this nature in the future would change his behaviour.

[260] It is also relevant that the most violent offences committed by Mr. Mohamed were committed when he was intoxicated, which he would later deny. Mr. Mohamed successfully completed a program aimed at his substance abuse in August 2012, which again had no impact. He has shown no insight into the various factors that contribute to his pattern of violent offending and shows no motivation to engage in any meaningful change. Again, even if Mr. Mohamed successfully completed more programs of this nature in the future, I do not see how I could reasonably find that there is a reasonable prospect of him not consuming alcohol in the future, which is what clearly makes his violent offending worse, or that any programing of this nature would change his behaviour.

[261] What is also particularly relevant now, from Mr. Mohamed’s criminal history, is how he has behaved when on Day Parole, Statutory Release, and while on probation. In this respect, his record is also abysmal. As Dr. Booth testified, despite valiant efforts in terms of community reintegration and supervision and tries at half-way houses (which would be imagined in a LTSO scenario), Mr. Mohamed’s past behaviour has shown that he has not really benefitted from those.

[262] Mr. Mohamed has 10 separate convictions for breaching court orders. During the service of his two federal sentences, Mr. Mohamed was the subject of five separate warrants of apprehension and suspension for breaches of the terms of his Day Parole or Statutory Release. On each occasion, his release was revoked by the Parole Board, deeming his risk to no longer be manageable in the community. He was subject to a probation order at the time he committed the predicate offences. I have set out the details of these breaches in the Chronology. In each case, Mr. Mohamed’s release was suspended for his breaching of Day Parole conditions or Statutory Release conditions – often a mere matter of days (and no more than a couple of months) after his release.

[263] As Mr. Wilson pointed out, Mr. Mohamed's Statutory Release violations during his second penitentiary sentence were for the consumption of alcohol, which was prohibited. Mr. Bryant concedes that almost all of Mr. Mohamed’s statutory violations involved transgressions for the consumption of alcohol or drugs, but he suggests they are not that serious as none involved the commission of any offence let alone a violent one. In cross-examination, Ms. Jaffer testified that it would not be wrong to equate the LTSO program to that of a program for persons with drug or alcohol addictions who take a step forward, two steps back, followed by a step forward again. People get through LTSO’s, but Ms. Jaffer conceded that it is never done in 10 years because of these various “hiccups”, because any violation of the terms of the LTSO can result in further criminal charges and any sentence for those has to be completed before the LTSO resumes. Mr. Bryant submitted that the LTSO program is much like what can be expected in an alcohol or drug dependency rehabilitation program in that it acknowledges not only the frailty of the individual but also the importance of providing some hope of success in the future.

[264] In the case of Mr. Mohamed, however, I agree with Mr. Wilson that while a pattern of occasional relapses – such as the breaching a no alcohol condition – may be an acceptable situation for another offender, it poses an unacceptable risk to the public here. Mr. Mohamed’s criminal history is clear that when he drinks too much, he becomes violent and innocent members of the public are robbed, stabbed, or sexually assaulted as a result. As I have already said, even if a condition were imposed at the commencement of his LTSO prohibiting Mr. Mohamed from drinking, and even though he has not committed any offences in the past when he has breached such a condition, given (i) his criminal history and (ii) the lack of evidence that Mr. Mohamed would be (or could be) successfully treated for his abuse of alcohol while serving a determinate sentence, it would only be a matter of time before he would become intoxicated again, with the consequence that there would be a high likelihood of him committing another serious personal injury offence. As I have stated, the suspension of his release would ultimately be reactive. Mr. Mohamed might not commit another offence for several months or even longer, but there is a high likelihood that he eventually would. There would thus be another serious personal injury offence that should have never occurred.

[265] Mr. Bryant argued that Dr. Booth implicitly recognized that a determinate sentence followed by a 10-year LTSO was appropriate because he set out what he would recommend, as conditions, if Mr. Mohamed enters the community, whether under parole, probation, or some other order in his Assessment Report. I disagree. Dr. Booth was very careful in his report to state that the sentence to be imposed is a legal question. Just as probation officers set out what conditions should be imposed if probation is ordered, even when they do not support such an order, Dr. Booth was providing whatever assistance he could in the event that I accepted Mr. Bryant’s position on sentencing.

[266] Turning to the issue of age-related decline, as already stated, even if I assume that Mr. Mohamed would serve another 10 years from now, he would be 47 at the commencement of a LTSO, at which point he would be supervised in the community. This is the age to consider in Mr. Mohamed’s case as community supervision would likely commence at the end of the determinate sentence so Mr. Mohamed would only be around 47 years old. Mr. Bryant conceded that the difference in his risk of offending as a result of being 10 years older would not be material.

[267] Mr. Bryant also submitted that given Mr. Mohamed’s previous record, if given a lengthy determinate sentence, Mr. Mohamed is not a likely candidate for Day Parole or maybe even full parole when it becomes statutorily available. This means that his period in custody will be much closer to Statutory Release than might otherwise be the case. He also submitted that with “hiccups”, Mr. Mohamed’s LTSO would likely run longer than 10 years. This argument does not address my concerns about the risk of Mr. Mohamed re-offending when he does indeed finish his sentence and starts a LTSO or about the risk these “hiccups” raise.

[268] Mr. Bryant submitted that there “have been flashes of progress” that were perceived to be real at the time. For example, Mr. Mohamed secured his high school diploma and a welding certificate. At the time he completed the violence prevention and substance abuse programs, it was perceived that he was successful. It is only in retrospect that this is looked at critically. Mr. Mohamed has also had flashes of insight and has shown some signs of remorse. That may be true, but it is the present risk Mr. Mohamed poses, based on the evidence that I must assess. The fact that at the time program providers believed Mr. Mohamed had successfully completed a particular program is academic given the evidence is clear that the programs had no impact on his offending behaviour.

[269] Mr. Bryant also argued that by the time Mr. Mohamed would be considered for treatment, he would have the prospect of his sentence being converted into an indeterminate sentence hanging over his head and, although there would likely be hiccups, that threat would be a strong incentive to deal with his issues. Again, however, this submission does not address my concern about being reactive once there has been another serious personal injury offence rather than ensuring one is not committed in the first place.

[270] Although there are a few protective factors in Mr. Mohamed’s life, they are not nearly enough in my view to minimize the risk to the public if Mr. Mohamed were ultimately released on an LTSO following serving a determinate sentence for the reasons I have expressed. By contrast, if Mr. Mohamed is given an indeterminate sentence, he will have the opportunity to move forward as the PBC will review his case seven years from his release – November 2025. If he has decided to and/or has been capable of engaging in meaningful steps to reduce his risk by this point, the PBC could grant him release on conditions at that time at a stage where his risk to the community would be at an acceptable level. Even if his access to treatment or programs is delayed by being on an indeterminate sentence, due to lack of resources, that is not a reason for me to disregard the evidence before me and the binding legal principles.

Conclusion

[271] In considering all the evidence and the extensive submissions of counsel, I have concluded that I am not satisfied that there is a reasonable expectation that even a lengthy sentence followed by a 10-year LTSO would adequately protect the public against the commission by Mr. Mohamed of another serious personal injury offence. In coming to this conclusion, I have relied primarily on the following findings:

a) Dr. Booth diagnosed Mr. Mohamed with serious mental health illnesses and disorders. The diagnosis of anti-social personality disorder and alcohol use disorder are of particular relevance to an assessment of Mr. Mohamed’s risk of future violent offending. His diagnosis of schizophrenia, although not necessarily a cause of his offending behaviour, if left untreated will impede and make more difficult any possible treatment of the other disorders;

b) Mr. Mohamed has shown no insight into the various factors that contribute to his pattern of significant violent offending and he shows no motivation to engage in any meaningful change. He refuses to accept that he has any mental disorder and has not admitted that he has a substance abuse disorder, particularly with respect to alcohol;

c) In finding Mr. Mohamed to be a dangerous offender, I have already found that he poses a high likelihood of harmful recidivism by committing further violent offences, that he has not to this point been able to surmount his aggressive behaviour, that his violent behaviour is intractable, and that he has shown a substantial degree of indifference respecting the reasonable, foreseeable consequences to other persons of his behaviour. Furthermore, although Mr. Mohamed has pleaded guilty to many offences, for the most part he minimizes the violence and injury he has inflicted;

d) Dr. Booth’s opinion is that the prognosis for successful treatment of Mr. Mohamed’s serious mental health illnesses and disorders is poor for the reasons I have set out;

e) There is no evidence that Mr. Mohamed would willingly accept and receive treatment for his mental health issues, including his substance abuse issues, while detained and the evidence in fact is to the contrary. Mr. Mohamed has repeatedly refused all treatment to date;

f) Even if Mr. Mohamed were compelled to accept treatment through conditions imposed at the commencement of his LTSO – for example, by conditions to take medication and abstain from drinking alcohol – that would not bring his risk to an acceptable level as given the evidence he would still very likely relapse, particularly with respect to alcohol, with the consequence that he would be highly likely to commit another serious personal injury offence while in an intoxicated state. As Dr. Booth testified, another innocent person would likely suffer serious injury as a result of a violent assault by Mr. Mohamed;

g) There is no evidence that even if Mr. Mohamed were treated for his mental health issues and substance abuse disorders that this would have the desired impact and mean that he would be capable of overcoming his violent behaviour, or that any treatment would control the risk he presents both as a result of his mental disorders and his substance abuse;

h) I have no evidence suggesting that if Mr. Mohamed successfully completes more violence prevention programs or programs to address his abuse of alcohol, that they would reduce his offending behaviour. To the contrary, the evidence before me suggests that none of these programs have had any effect of Mr. Mohamed’s behaviour to date. Even though Mr. Mohamed successfully completed high intensity and maintenance programs and presumably obtained the tools to control his violent and offending behaviour they have had no impact on reducing or controlling the high level of risk that he presents. The same is true of the program he took to address his substance abuse problem. This evidence suggests that he has demonstrated a high level of intractability;

i) Mr. Mohamed is entitled to take the position that he has been wrongfully convicted and this is critically important should he chose to appeal my decisions. Normally on sentencing this would be a neutral factor. However, in R. v. P.G. 2013 ONSC 589, [2013] O.J. No 490, 2013 ONSC 59, Justice Code considered what relevance the offender’s denial of the predicate offences in that case should have at paras. 41-48. He concluded, after a thorough review of the case law, that denials of the offending conduct and resistance to treatment are relevant factors to consider on the issue of treatability and can be properly taken into account at both the designation and the sentencing phases of a dangerous offender proceeding. This conclusion was affirmed on appeal, see R. v. Gibson, [2021] O.J. No. 3967, 2021 ONCA 530 at para. 213. Given Mr. Mohamed’s tendency, even when he has admitted his guilt to offences, to later minimize the violence he exhibited, and given his ongoing resistance to treatment, his denial of committing the predicate offences is relevant to what sentence is appropriate in this case. This is the first time Mr. Mohamed has committed serious acts of sexual violence and this new aspect of his offending behaviour will require treatment. If he does not even accept that these acts occurred that will be a further impediment to successful treatment to reduce the high risk of violent recidivism;

j) Community supervision to date has not been successful. In each case when Mr. Mohamed was released, after only a matter of days or no more than a few months, his release was suspended for his breaching of conditions of Day Parole or his Statutory Release. As a result, there is no reasonable prospect that community supervision on a LTSO would adequately protect the public and bring the risk posed by Mr. Mohamed to an acceptable level; and

k) Court orders have not been effective at controlling Mr. Mohamed. He has repeatedly breached terms of his recognizance and he committed the predicate offences while on probation.

[272] For all of these reasons, I have come to the conclusion that Mr. Mohamed is one of those rare offenders who poses such a substantial risk of future violence that preventative detention in in a penitentiary for an indeterminate period is the only sentence which can adequately protect the public.

Final Disposition

[273] Mr. Mohamed, for the reasons I have given, I find you to be a dangerous offender pursuant to s. 753 (1)(a)(ii) of the Criminal Code. I impose a sentence of detention in a penitentiary for an indeterminate period.

[274] In addition, there will be a mandatory weapons prohibition order pursuant to s. 109(1)(a) of the Criminal Code for ten years and a mandatory DNA order pursuant to s. 487.051(1) authorizing the taking of a DNA sample.

[275] Finally, pursuant to ss 490.011, 490.012(1) and 490.013(2)(b) of the Criminal Code, I make an order that your name be added to the Sex Offender Registry and that you comply with the Sex Offender Information Registration Act for 20 years. My reason for making this order is that you have been convicted of sexual assault which is a designated offence under s. 490.011(1)(a)(xvi) and your counsel has not suggested that this order would have a disproportionate impact on your privacy or liberty interests.

Spies J.

Released: January 12, 2022

COURT FILE NO.: CR-19-50000449

DATE: 20220112

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Applicant

and –

IBRAHIM MOHAMED

Respondent

REASONS FOR DECISION ON DANGEROUS OFFENDER APPLICATION

SPIES J.

Released: January 12, 2022

[^1]: The delay was because prior counsel for Mr. Mohamed intended to move to strike his guilty pleas, something he was advised against at the time of sentencing.

[^2]: Formerly the National Parole Board