COURT FILE NO.: CR-19-10000505-0000
DATE: 20220714
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and -
KEVIN PINCK
Respondent
Ms. A. Leggett, for the Applicant Crown
Mr. D. Oake, for the Respondent Mr. Pinck
HEARD: June 13, 14, 15, 16, 17 and 20, 2022
M. Forestell J.
Reasons for SENTence and ruling on APPLICATION FOR long-term OFFENDER DESIGNATION
Overview
[1] On October 3rd, 2018, Kevin Pinck attended a branch of the Royal Bank of Canada at 12:43 in the afternoon. After waiting in line, he went to the window of bank teller, Joseph Kong. Mr. Pinck passed Mr. Kong a hold-up note demanding cash. Mr. Kong told Mr. Pinck he did not know how to obtain the money. Mr. Pinck took the note and left the bank.
[2] The next day, October 4, 2018, Mr. Pinck attended a branch of the TD Canada Trust bank at 10:33 a.m. He attended the customer service counter and passed the same note to a teller, Ms. Giang. He told her to “do as I say” as he held the note for her to read. He also told her he was armed with a firearm. Ms. Giang gave Mr. Pinck $200 in cash, as well as bait money with a GPS tracking bundle. Mr. Pinck left the bank with $365 in total.
[3] Mr. Pinck was arrested the same day a short distance away from the second robbery.
[4] On August 14, 2020, Mr. Pinck entered guilty pleas to two counts of robbery. On January 11, 2021, I granted the application of the Crown to have Mr. Pinck assessed pursuant to s. 752.1 of the Criminal Code of Canada, R.S.C., 1985, c. C-46. On September 9, 2021, the Attorney General granted consent for the Applicant to pursue an application for Mr. Pinck to be designated a long-term offender (“LTO”) pursuant to s. 753.1(1) of the Criminal Code.
[5] In June of 2022 I heard evidence on the sentencing and long-term offender application.
Positions of the Parties
[6] The position of the Crown is that Mr. Pinck should be sentenced to two years’ imprisonment in addition to the time he has served in pre-sentence custody and that he should be found to be a long-term offender and placed on a ten-year Long-Term Supervision Order (“LTSO”).
[7] Mr. Pinck’s position is that he should not receive any further term of imprisonment. Mr. Pinck has been in custody since his arrest on October 4, 2018. With credit at 1.5:1 for his presentence custody, Mr. Pinck has served the equivalent of five years and 8 months. Mr. Pinck’s position is that a sentence of four to five years is appropriate for the two robberies, putting him in a time served position. Counsel for Mr. Pinck did not concede that a long-term offender designation must be made but did not argue that the Crown had failed to prove that the criteria for the designation were met. Assuming Mr. Pinck is found to meet the criteria, counsel argued that the maximum 10-year LTSO is not required and a LTSO of five to six years should be imposed.
[8] I will, in these reasons, summarize Mr. Pinck’s personal history, his history of involvement with the criminal justice system and his psychiatric history. I will review the evidence provided by the assessor in this case, Dr. Joel Watts, and the evidence of representatives of the federal and provincial correctional systems. I will then review the law and my reasons for concluding that Mr. Pinck must be designated to be a long-term offender. Finally, I will address the length of the sentence and the length of the long-term supervision order.
Evidence
Personal History
[9] Mr. Pinck is 57 years old. He will be 58 in December of this year.
[10] Mr. Pinck had a very traumatic and tragic childhood and adolescence. He and his sister were placed in the care of the Catholic Children’s Aid Society when Mr. Pinck was six months old. Mr. Pinck had no contact with his biological parents. He and his sister went to live with the Pinck family when Mr. Pinck was five years old. They were adopted by the Pincks when Mr. Pinck was six years old. The family had seven older children at the time.
[11] Mr. Pinck’s adoptive father beat him from a very young age. Mr. Pinck began running away at age seven to avoid the beatings. At one point he stayed away for six months, living with a friend’s family. He stayed with this family regularly but would return when his father promised not to beat him. Mr. Pinck frequently had injuries from the beatings and would stay away from school to hide his injuries. He was sexually abused by one of his older brothers when he was six or seven years old, and the brother was about twenty years old.
[12] Mr. Pinck struggled in school and was identified as having a learning disability. He was placed in special classes. He was teased at school because of his learning issues. He left school at age 15 after completing grade 9. He left home around the same time. He left the home after an altercation with his father in which Mr. Pinck’s father struck Mr. Pinck, banging Mr. Pinck’s head on the floor. Mr. Pinck responded by taking a piece of lumber and beating his father with it.
[13] After leaving school and home, Mr. Pinck lived on the street and in shelters. He began using alcohol and drugs around the same time.
[14] He obtained employment at age nineteen unloading trucks at a Leon’s Furniture warehouse in Scarborough. He worked there for two years but was fired after coming to work intoxicated on several occasions. He then worked washing dishes but quit after about six months. At this point, he began breaking into houses to support himself and his addictions.
[15] Mr. Pinck had some relationships with women over his adult years but none that were sustained. He has a 27-year-old son with whom he has lost contact.
Substance Abuse
[16] Mr. Pinck used alcohol and cannabis in his teens and twenties. He began using heroin in his twenties and continued to use it at least until 1996 when he began Methadone therapy. He may have begun using heroin again around 2015. He began using crystal methamphetamine around that time. He was using crystal methamphetamine and likely heroin in 2017 and 2018, leading up to the index offences.
Psychiatric History
[17] Mr. Pinck was first diagnosed with schizophrenia while serving a sentence in the penitentiary in 1996. Records indicate that he responded fairly well to antipsychotic medication. The diagnosis appears to have been disputed over the ensuing few years while Mr. Pinck was incarcerated. Mr. Pinck stopped taking medication in 1997 and his symptoms worsened. He expressed the desire to keep taking the medication. However, in 1998 or early 1999 he was taken off the medication because it was thought that he did not have symptoms of psychosis.
[18] In early 2001 while in the Regional Health Centre-Pacific, he was placed on anti-psychotic medication and improved rapidly. The diagnosis of schizophrenia appears to have been accepted at this point. Later in 2001, Mr. Pinck expressed some ambivalence about taking medication. In 2002 he decompensated, and a long-acting injectable anti-psychotic was added to his medication. He refused medication and decompensated again in November of 2002. He reported feeling sedated but agreed to restart the medication with a lower dose. Mr. Pinck’s medication was adjusted upwards over the next two years. However, he again refused injections and deteriorated, resulting in a transfer to the Regional Treatment Centre - Ontario in Kingston in 2005. He remained there until his release at warrant expiry in 2007. He was subject to a s. 810.2 peace bond upon release because there were reasonable grounds to believe that he would commit a serious personal injury offence.
[19] When released from prison in 2007, Mr. Pinck lived in a group home and saw a psychiatrist in the community. He was compliant with his anti-psychotic medication and Methadone treatment. Unfortunately, in mid-2014 Mr. Pinck’s bloodwork showed that his blood cell counts were dropping. It was determined that he was experiencing a rare side effect to his long-acting anti-psychotic, Fluanxol. He had to be taken off the medication and experienced a recurrence of his psychotic symptoms. He then became involved in an altercation at his group home. He was charged and convicted of mischief and possession of a weapon. He lost his housing. In November of 2015 he robbed a bank and was sentenced to 627 days in custody. He spent about three months of this sentence at the St. Lawrence Valley Correctional and Treatment Centre in Brockville Ontario. During his time in custody, he restarted injections of anti-psychotic medication.
[20] He was released from custody in September of 2017. He had no housing. He saw a physician at a clinic in late September after his release in order to access Methadone treatment but did not return after that. He attended the emergency department at the Centre for Addiction and Mental Health (“CAMH” ) on October 1, 2017 seeking help with opioid use. He told the medical staff that he had been injecting heroin daily since his release. He was given a dose of his long-acting anti-psychotic, Fluanxol, which at that point was overdue by about two weeks.
[21] According to notes from probation and parole, Mr. Pinck lived in shelters and in a group home for the year after his release in 2017 and was seen by a doctor at Humber River Hospital and by a mental health worker. He reported that he was taking his medication.
Mr. Pinck’s History of Criminal Offending and History in Correctional Facilities
[22] Mr. Pinck has a long history of conflict with the law. Mr. Pinck’s first criminal conviction was in 1982 when he was convicted of taking an automobile without consent and failing to attend court. He received a conditional discharge. From 1982 to 1984 he was convicted of relatively minor offences.
[23] In 1986 he was convicted of armed robbery. Mr. Pinck demanded money from a shopkeeper while armed with a knife. He struggled with the shopkeeper and then ran without obtaining any money. He was sentenced to two years and seven months for the armed robbery and several other charges.
[24] Mr. Pinck did not do well in custody, accumulating institutional misconducts. He was released on mandatory supervision in November of 1987 but was recommitted just over one month later having committed further offences. He continued to be found guilty of institutional misconducts as he served the balance of his sentence and the sentence for the new offences of possession of property obtained by crime and driving over 80. He was released on mandatory supervision in April of 1989 and was recommitted because of new charges four months later.
[25] Mr. Pinck, from 1990 to 1993 was convicted of assault, assault with a weapon, assault causing bodily harm, assault peace officer and assault resist arrest (three times). While in custody during this time he completed programmes for addiction and anger management and attended Alcoholics Anonymous. However, his institutional record continued to be poor.
[26] In 1995 he was convicted of two counts of robbery and sentenced to three and half years in the penitentiary. The robberies were bank robberies in which Mr. Pinck threatened the use of a gun but did not use one. At the time of his assessment following the imposition of sentence, Mr. Pinck reported that he had been using heroin every day and was also using cocaine, sedatives and opiates. He was not given access to programming for substance abuse because of limited availability at Millhaven Institution. He was not transferred to a lower security institution because he lunged at a food services worker with a makeshift weapon in January of 1997. Following this incident, he was sent to the Special Handling unit at Kingston Penitentiary. He continued to engage in violent conduct in the institution. He was not released on the original sentence and then received a one-year sentence of imprisonment in relation to the incident with the food services worker.
[27] He was transferred to Kent Institution in August 1998. At that institution he began abusing substances. He assaulted another inmate in January of 1999, causing him bodily harm. In August of 1999 he stabbed another inmate. In July of 2000 he was sentenced to two years less a day for the assault causing bodily harm with credit for a year of presentence custody. He was sentenced to four years for the stabbing.
[28] Around the time of the attacks on other inmates, Mr. Pinck had been paranoid and hearing voices. He reported to correctional staff that he had been diagnosed with schizophrenia in 1996. As I have already set out, this diagnosis was ultimately confirmed in 2000 at the Regional Correctional Center- Pacific. Mr. Pinck began taking anti-psychotic medication but was not always compliant.
[29] Following a change in his medication and with his entry to the Methadone treatment programme, Mr. Pinck’s institutional conduct improved. He returned to Ontario and was transferred to Warkworth Institution, a medium secure penitentiary. His warrant expiry date was July 11, 2006. He was convicted of assaulting correctional officers on two occasions in 2005. As a result, he received an additional nine-month sentence.
[30] Mr. Pinck was sent to the Regional Treatment Centre - Ontario (“RTC-O”) in 2005. He did well at this facility which is a Schedule 1 mental health centre. He was compliant with medication, continued on the Methadone programme and had few issues at RTC-O. He worked as a ‘cartman’ on his unit. Mr. Pinck was nevertheless again held until warrant expiry of April 11, 2007.
[31] Upon his release, the Toronto Police Service obtained a s. 810.2 recognizance. Mr. Pinck abided by the recognizance, reporting to police weekly for two years.
[32] For almost eight years from 2007 to 2015, Mr. Pinck did not have any contact with the criminal justice system. On February 10, 2015, he was arrested for mischief and weapons dangerous after the incident at his group home. He believed that one of his fellow residents was going to kill him. Mr. Pinck at this point in time was experiencing auditory hallucinations and paranoia. As mentioned earlier in these reasons, he had been taken off his medication because of the rare side effect of dropping blood cell counts.
[33] After the incident at the group home, Mr. Pinck lost his housing, began using substances and missed appointments for his medication.
[34] He was arrested on November 19, 2015, for bank robbery. He had passed a note to a bank teller stating that he had a gun. A presentence psychiatric report by Dr. Angus MacDonald stated that Mr. Pinck’s prospects for future stability were greater than before assuming he continued to receive treatment for his schizophrenia and substance abuse. He received a three-year sentence less presentence custody. Following an assessment, it was recommended that he be transferred to St. Lawrence Valley institution, which, like the Regional Treatment Centre, is a Schedule 1 hospital. The provisional diagnoses at that time were schizophrenia, alcohol dependence, amphetamine use disorder and antisocial personality disorder. Mr. Pinck had only one institutional misconduct at St. Lawrence Valley.
[35] Mr. Pinck was released from custody in September of 2017. He was able to find housing and avoid contact with the criminal justice system for one year. He committed the index offences on October 3 and 4, 2018.
[36] While in custody awaiting sentence for the offences before this Court, Mr. Pinck has been convicted of institutional misconducts. He has generally been compliant with medication. However, because of a recurrence of the side-effect of the injectable medication, he had to be taken off the medication and experienced a recurrence of his psychotic symptoms in 2021. He is currently taking oral medication and seems stable. He continues to take Methadone.
Assessment of Mr. Pinck pursuant to s.752.1 of the Criminal Code
[37] Mr. Pinck was assessed by Dr. Joel Watts, a forensic psychiatrist who, at the time of the assessment, was the clinical director of the Forensic Inpatient and Outpatient Services of the Integrated Forensic Program at the Royal Ottawa Mental Health Centre. Dr. Watts’ Report was filed in May of 2021. Dr. Watts gave evidence at the hearing.
[38] Mr. Pinck was diagnosed by Dr. Watts as having an anti-social personality disorder, a substance abuse disorder and schizophrenia. Dr. Watts testified that in his opinion, Mr. Pinck presents a substantial risk of reoffending and there is a reasonable possibility of eventual control of the risk in the community.
[39] The report of Dr. Watts summarizes Mr. Pinck’s personal, educational, psychiatric and legal history. Dr. Watts drew upon the records compiled for this hearing which included previous psychiatric reports, presentence reports, correctional records and court records. I have reviewed and considered the records that were filed on this application and that form part of the foundation for the opinion offered by Dr. Watts.
[40] In his testimony, Dr. Watts said that he believed that Mr. Pinck had an anti-social personality disorder but that he could not say that Mr. Pinck had a conduct disorder with onset before age 15 years. A conduct disorder with onset before age 15 is a precondition to the diagnosis of anti-social personality disorder. Dr. Watts noted that educational records were unavailable, and he had no collateral sources with respect to Mr. Pinck’s early years apart from the records from the Catholic Children’s Aid Society. Dr. Watts believed that it was likely that Mr. Pinck exhibited the symptoms of a conduct disorder, but this could not be confirmed. In concluding that Mr. Pinck likely had a conduct disorder, Dr. Watts relied on Mr. Pinck’s account of assaulting his father at age 15 or 16 years when his father had been beating him. Dr. Watts pointed to Mr. Pinck’s account of running away to live with a friend at age 7 and running away for good at age 15 or 16 years. Dr. Watts also pointed to Mr. Pinck’s poor academic performance that was not consistent with his level of intelligence which was said to be average based on testing when Mr. Pinck was in his twenties. Dr. Watts did not diagnose a learning disorder although Mr. Pinck reported having been diagnosed with a learning disorder as a child and having been placed in special classes.
[41] I have not relied on Dr. Watts’ diagnosis of personality disorder. Without evidence of a conduct disorder before age 15 this diagnosis is not made out. Mr. Pinck’s assault of his father in retaliation for his father assaulting him occurred after he was 15 years old. His early episode of running away from home as a 7-year-old was precipitated by his father beating him. He ran only to safety. His poor academic performance is more consistent with a learning disorder than with a conduct disorder in the absence of other behavioural issues at school. Although Dr. Watts did not diagnose a learning disorder, I did not understand him to have ruled it out as there was no psycho-educational testing done as part of the LTO assessment.
[42] Although I do not accept that the diagnosis of anti-social personality disorder should be made, I accept that Mr. Pinck has anti-social personality traits. This is evident from Mr. Pinck’s long history of criminal conduct, by the fact that he has held few jobs and by the fact that he has few if any pro-social relationships.
[43] Dr. Watts expressed the opinion that Mr. Pinck has schizophrenia. Mr. Pinck’s actions in stabbing an inmate in 1999 occurred when he was experiencing persecutory delusions. Similarly, in 2015 when he was arrested for weapons dangerous and mischief in relation to his actions at his group home, he was experiencing symptoms of his psychotic illness.
[44] Dr. Watts scored Mr. Pinck on violence risk assessment instruments. Mr. Pinck scored 29/40 on the Psychopathy Checklist Revised (“PCL-R”), just missing the cut-off to be considered a psychopath. On the Violence Risk Appraisal Guide-Revised (“VRAG-R”) he obtained a score that was in bin 8 which is the same as a group of violent offenders whose risk of violent recidivism was 58% after five years and 78% after 12 years. I note that Dr. Watts, in scoring the VRAG-R, scored Mr. Pinck as having a conduct disorder before age 15. For the same reasons that I outlined earlier in these reasons, I have given less weight to the VRAG-R score because of the weak foundation for the conclusion of a conduct disorder with onset before age 15 years.
[45] The HCR-20 version 3, a tool that uses both historical and dynamic risk factors, was administered and relied upon by Dr. Watts to conclude that Mr. Pinck presents a very high risk of future violence. Dr. Watts pointed to Mr. Pinck’s history of violent offences, his pattern of anti-social behaviours, his substance abuse and the absence of any pro-social relationships or activities in the past as the historical factors of concern. With respect to dynamic factors, Mr. Pinck has limited insight. Mr. Pinck reportedly minimized the role of substance abuse in his offending behaviour and did not recognize the link between substance abuse and an increase in psychotic symptoms.
[46] Dr. Watts’ opinion was that without external controls and intensive support, Mr. Pinck would be at very high risk to reoffend. With such support however, Dr. Watts’ opinion was that Mr. Pinck’s behaviour can be controlled in the community. Mr. Pinck’s long period of stability from 2007 to 2015 shows that with structure and support Mr. Pinck can do well. The problem is that without stable housing, support and access to appropriate medical treatment Mr. Pinck regresses rapidly into substance use and criminal activity.
[47] Dr. Watts expressed the opinion that programming would be helpful to Mr. Pinck but did not express an opinion on the length or type of in-custody programming required before Mr. Pinck could be safely reintegrated into a supervised setting in the community.
Resources in the Penitentiary and in the Provincial Correctional System
[48] Evidence was called concerning the programming available to Mr. Pinck if he is given a federal sentence and the resources available if he is given a provincial sentence.
[49] Brad Tamscu, the manager of Mental Health and Addictions for the Ministry of the Solicitor-General, Correctional Services, testified as to the programming available to Mr. Pinck if he receives a provincial sentence.
[50] There are three treatment centres in the provincial system.
[51] One of the centres, Algoma, is not currently operating because of COVID. The other treatment centre, the Ontario Correctional Institute (“OCI”), is operating out of a detention centre at a reduced capacity. Programming at OCI is directed at substance abuse and sexual offending.
[52] The third treatment centre is St. Lawrence Valley Correctional and Treatment Centre. This is a designated Schedule 1 Mental Health Facility that is operated by the Royal Ottawa Mental Health Centre. Programming is available at St. Lawrence Valley for substance abuse, anger management and violence reduction. An offender must have a confirmed mental health diagnosis for admission to St. Lawrence Valley. It is preferred that the person have a sentence of at least six to nine months.
[53] Other provincial reformatories offer general programming directed at addressing criminogenic traits. This includes programming for substance abuse, anger management and life skills.
[54] Erin Brennan, an employee of Correctional Services Canada testified that high intensity programming is available to offenders in the federal penitentiary system. Inmates with mental health issues or low cognitive functioning receive a modified version of the programming in smaller groups. The programming takes a holistic approach and addresses reducing risky behaviour, changing anti-social behaviour and acquiring coping and self-management skills. The programming begins immediately upon admission and continues if the person is released to a Community Correctional Centre or a Community Residential Facility.
[55] Community Correctional Centres are run by Correctional Services Canada and Community Residential Facilities are privately run. An offender on a Long-Term Supervision Order is almost always released to a Community Correctional Centre.
[56] Ms. Brennan also testified that the Regional Treatment Centre – Ontario, is a Schedule 1 Mental Health Facility and is able to manage the treatment of major mental illnesses such as schizophrenia.
[57] Planning for the release of an offender on a Long-Term supervision order generally begins about six months before the offender’s statutory release date. The parole officer working with the offender will recommend conditions to the National Parole Board. It is more difficult to plan for release when the offender is serving a sentence in the provincial system, particularly if the offender receives a very short period of imprisonment. The same level of assessment and planning is not possible when the offender is in the provincial system.
Analysis
Long-term Offender designation
[58] The onus is on the Crown to prove beyond a reasonable doubt that Mr. Pinck meets the criteria for a long-term offender[^1]. To meet the definition, the offender must have been convicted of a serious personal injury offence. That condition is met. Robbery is a serious personal injury offence.[^2]
[59] The other conditions for a long-term offender designation are (i) that a sentence of two years or more would be appropriate for the offences for which Mr. Pinck has been convicted; (ii) that there is a substantial risk that he will reoffend; and (iii) that there is a reasonable possibility of eventual control in the community.[^3]
[60] I will now consider each of these conditions.
(i) Would a sentence of two years or more be appropriate for the offences for which Mr. Pinck has been convicted?
[61] Banks are vulnerable to the type of robbery committed by Mr. Pinck. Bank employees are profoundly impacted by robberies. The sentencing objectives of specific and general deterrence and denunciation are paramount.[^4]
[62] There are several aggravating circumstances in this case. Mr. Pinck has four prior convictions for robbery. He was on probation for a robbery at the time of these offences. He said that he had a gun although he did not have one. The lack of a weapon is not a mitigating factor. The fear experienced by the bank tellers is not reduced when the robber lies about having a gun.
[63] Mitigating factors are that Mr. Pinck struggles with mental health and addiction issues; he has had an extremely difficult childhood and adolescence; and, he had a significant gap in his criminal offending between 2007 and 2015.
[64] Mr. Pinck’s last sentence for robbery was three years. A lengthier sentence is called for in light of the aggravating circumstances in this case.
[65] I find that a sentence at the lower end of the seven to nine-year range proposed by the Crown would be appropriate in light of Mr. Pinck’s mental health issues and substance abuse issues. If not for the mitigation of harsh conditions of pre-sentence custody, I would have imposed a sentence of seven years.
[66] After consideration for the harsh conditions, I would reduce that sentence to one of six and one-half years or 2,377 days before credit for actual presentence custody..
[67] It follows from this conclusion that the first condition for the designation of long-term offender is met. A sentence of two years or more would be appropriate.
(ii) Is there a substantial risk that Mr. Pinck will reoffend violently?
[68] Except for the period of time between 2007 and 2015, Mr. Pinck has committed offences consistently from 1986 to present. Dr. Watts’ opinion in his assessment is that Mr. Pinck presents a very high risk of violent reoffence. This opinion has been expressed in previous assessments and has led in the past to Mr. Pinck being held until warrant expiry.
[69] Mr. Pinck’s psychotic illness has clearly played a role in his offending behaviour. Treatment for his schizophrenia, stable housing and community support enabled Mr. Pinck to avoid criminality from 2007 to 2015. However, the re-emergence of his psychotic symptoms and the loss of his housing caused Mr. Pinck to revert to substance abuse and to criminal conduct. While his psychotic illness is, at times, the trigger for a downward spiral for Mr. Pinck, it is his substance abuse and anti-social lifestyle that directly cause the offending behaviour.
[70] The actuarial risk assessment instruments used to measure the risk presented by Mr. Pinck have consistently indicated a high risk of violent reoffence.
[71] Mr. Pinck has gained insight into his psychotic illness but has not maintained treatment for his substance abuse while in the community.
[72] Mr. Pinck has consistently responded to instability in his life by resorting to substance abuse and criminal activity.
[73] Mr. Pinck’s psychiatric diagnoses of schizophrenia, substance use disorder and his anti-social personality traits combine to create an extremely elevated risk of violence. Mr. Pinck, when inadequately treated for his schizophrenia or when experiencing stressors that exacerbate his psychotic symptoms, resorts to substance abuse and criminal activity to finance the substance abuse. This is a pattern that is apparent from his history both in and out of custody.
[74] I am satisfied beyond a reasonable doubt that there is a substantial risk that Mr. Pinck will reoffend violently.
(iii) Is there a reasonable possibility of eventual control in the community?
[75] With sufficient structure and support and access to medical care, Mr. Pinck’s conduct can eventually be controlled in the community. Mr. Pinck has demonstrated the ability to avoid criminal conduct when he was in the group home from 2007 to 2015. He complied with psychiatric treatment, avoided the use of substances, and did not commit any criminal offences. It is apparent, however, that the period of almost two years in the Regional Treatment Centre and the access to stable housing upon release were important factors contributing to Mr. Pinck’s success in those years.
[76] I find that there is a reasonable possibility of eventual control in the community and therefore the third condition for the designation of long-term offender is satisfied.
Length of the Sentence and Credit for Presentence Custody
[77] Having found that Mr. Pinck is a long-term offender, s. 753.1(3) requires that I impose a sentence of a minimum of two years and order that Mr. Pinck be subject to a Long-Term Supervision Order that does not exceed 10 years.
[78] I have concluded that the appropriate sentence for these offences is a global sentence of six and one-half years imprisonment.
[79] Mr. Pinck has been in custody for 1,380 days or 45 months and 11 days. He is entitled to credit at 1.5:1 for his time in custody pending sentence. This is 2,070 days credit. This leaves 307 days or 10 months and 3 days left for Mr. Pinck to serve.
[80] I recognize that in determining the length of sentence for Mr. Pinck, I am not bound by the range of sentence imposed on offenders who are not subject to long-term offender designations. I am entitled to take into account access to rehabilitative programming in a penitentiary versus a provincial institution in setting the length of sentence and in determining the credit for pre-sentence custody. I accept that I am permitted to impose a longer sentence or give lower credit for pre-sentence custody in order to advance the two-fold purpose of the long-term supervision provisions “to protect the public and to rehabilitate offenders and facilitate their integration into the community”.[^5]
[81] In this case I find that a 10-month period of incarceration meets these objectives. Within the 10 months of further incarceration, Mr. Pinck can be stabilized on medication; he can commence some programming; and his parole officer will have adequate time to make recommendations for conditions to the National Parole Board. A longer sentence or reduced credit for presentence custody is not necessary to protect the public or to advance the rehabilitation and reintegration of Mr. Pinck.
[82] I have also considered the argument of counsel for Mr. Pinck that, effectively, he has done enough time. I do not accept that submission, both because the aggravating circumstances in this case justify a substantial jump in sentence and because Mr. Pinck’s rehabilitation and reintegration into the community require a further period of incarceration to allow for stabilization and discharge planning.
Length of the Long-Term Supervision Order
[83] I have also concluded that a 10-year LTSO is required in this case. Mr. Pinck’s rehabilitation and reintegration into the community requires a lengthy period of supervision. Mr. Pinck will have access to programming in the community to address his serious and longstanding substance abuse problem. He requires supervision, monitoring and assistance in continuing to access appropriate medical care, including treatment for his schizophrenia and Methadone treatment. I have not increased Mr. Pinck’s custodial sentence to facilitate treatment, but I find that an increased period of supervision is needed to manage the risk that Mr. Pinck presents when he is unsupervised, untreated and using substances.
Conclusion
[84] I therefore sentence Mr. Pinck to a period of imprisonment of 6.5 years concurrent on each charge before credit for presentence custody. With credit of 2,070 days for 1,380 actual days of presentence custody that leaves 307 days left to serve. I strongly recommend that Mr. Pinck serve at least a portion of that sentence at St. Lawrence Valley in order for him to receive appropriate treatment for his schizophrenia and be stabilized on medication before his release into the community on the Long-Term Supervision Order.
[85] I order that Mr. Pinck be subject to a Long-Term Supervision Order for 10 years.
[86] In addition, I make an order for a s. 109 weapons prohibition for life and a DNA order as these are primary designated offences.
Forestell J.
Released: July 14, 2022
COURT FILE NO.: CR-19-10000505-0000
DATE: 20220714
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
KEVIN PINCK
Reasons for SENTence and ruling on APPLICATION FOR long-term OFFENDER DESIGNATION
Forestell J.
Released: July 14, 2022
[^1]: R. v. Currie, 1997 CanLII 347 (SCC), [1997] 2 S.C.R. 260 at para. 42 [^2]: R. v. Steele, 2014 SCC 61, [2014] 3 SCR 138 [^3]: Section 753.1, of the Criminal Code [^4]: R. v. Nutter, [1970] B.C.J. No. 607 (BCCA); R v. Hingely, [1977] N.S.J. No. 465 (NSCA) [^5]: R. v. Ipeelee, 2012 SCC 13 at para. 50; R. v. Hopley, 2015 BCCA 499 at para. 57; R. v. Spilman, 2018 ONCA 551