OSHAWA COURT FILE NO.: 14917/18A and 14917/18B
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
BRADY BLAIR
Defendant
Mr. P. Murray, for the Crown
Mr. T. Smith, for the Defendant
HEARD: May 16, 2022
RESTRICTION ON PUBLICATION
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
REASONS FOR JUDGMENT
fuerst J.:
Introduction
1Brady Blair has an alarming history of aggression against others, particularly intimate female partners.
2Most recently, over a period of about three weeks in the fall of 2017, he repeatedly assaulted his girlfriend, who I will refer to as J.M. The assaults involved significant violence, including sexual violence. Each assault was unprovoked, and the result of Mr. Blair’s obsessive jealousy and uncontrolled anger. The assaults were committed notwithstanding that Mr. Blair was bound by multiple probation orders at the time.
3Not surprisingly, Crown counsel seeks to have Mr. Blair declared a dangerous offender.
4Mr. Blair was charged with ten offences in respect of his girlfriend, J.M. The offences were alleged to have occurred in the latter part of October and into early November 2017.
5At the outset of his Superior Court trial before Justice David Salmers and a jury in October 2019, Mr. Blair pleaded guilty to three of the counts, each of which charged assault. At the conclusion of the trial, the jury found him guilty of the additional seven counts that charged assault with a weapon (particularized as a knife), sexual assault with a weapon (particularized as a knife), sexual assault with a weapon (particularized as a can of deodorant), and assault on four other occasions.
6Mr. Blair then pleaded guilty before Justice Salmers to five counts of breach of probation charged in a second indictment. Each count was in respect of a different order of probation.
7On January 14, 2020, Justice Salmers released a Ruling making findings of fact for the purpose of the sentencing hearing. On that same date Crown counsel, Mr. Murray, filed a Notice of Application for an order of psychiatric assessment under s. 752.1 of the Criminal Code, as a pre-requisite to a possible dangerous offender application. Mr. Blair was at that point no longer represented by trial counsel. A delay ensued so that he could retain Mr. Smith.
8Several months later on October 15, 2020, Justice Salmers granted the order for assessment, on consent of the defence.
9The psychiatric assessment was carried out by Dr. Mark Pearce. He provided his report in March 2021. With the consent of the Attorney General, the Crown then applied to have Mr. Blair designated a dangerous offender in respect of three eligible offences. Justice Salmers held a dangerous offender hearing in December 2021.
10Justice Salmers passed away in January 2022, before he was able to release his decision on the application.
11Crown and defence counsel then met with me as a pre-trial judge to discuss how this case might be brought to a timely conclusion. With their consent, in April 2022 the Regional Senior Judge appointed me to continue the proceedings in place of Justice Salmers.
12At the outset of the hearing before me in mid-May 2022, Mr. Blair consented to be found a dangerous offender on the three eligible counts. Crown and defence counsel presented me with a joint submission seeking a determinate sentence followed by a long-term supervision order.
13Counsel provided me with the materials they agreed were necessary for me to review, including Justice Salmers’ Ruling making findings of facts, the report of Dr. Pearce, and portions of the evidence heard on the dangerous offender application along with exhibits. I have reviewed those materials.
The Circumstances of the Offences
14The complainant J.M. testified before the jury that she met Mr. Blair at a shelter in 2011 or 2012. They reconnected in the late spring of 2017. They began dating, and remained in contact while he served a sentence. However, Mr. Blair was obsessed with a belief that J.M. was repeatedly unfaithful to him. In the three weeks following his release from jail in October 2017, he repeatedly assaulted her. In each instance, the assault was unprovoked.
15Justice Salmers made the following findings of fact about the offences that were before him for sentence as a result of the jury’s verdicts and Mr. Blair’s pleas of guilty:
Count 1 (assault): Within 24 hours of his release from jail on October 20, 2017, while in the victim’s apartment Mr. Blair slapped her on the face. He did so out of unwarranted jealousy.
Count 2 (assault with a weapon): Within five days of his release from jail, he again was unreasonably obsessed with the victim’s unfaithfulness and decided to punish her. He used a knife to forcibly lead her behind a store and then to compel her to climb stairs to its roof. There he made her stand at the edge, from where she easily could have fallen.
Count 3 (assault): Within days of count 2, he was again unreasonably obsessed with her unfaithfulness. While in her apartment he slapped her on the side of her head across the ear. This caused her pain for a day or two.
Count 4 (sexual assault with a weapon): Within days of count 3, while in her apartment he became angry when she refused to have sex with him. He used a knife to force her to perform oral sex on him and then to have vaginal intercourse with him. She suffered cuts on her neck and on the right side of her stomach.
Count 5 (sexual assault with a weapon): Within days of count 4, while in her apartment he became angry with her. He forced her to strip naked, inserted a deodorant can in her vagina, urinated on her, and poured various items on her including shaving cream, lotion and condiments. He took a photo of her and threatened to send it to her friends. He then had vaginal sex with her.
Count 6 (assault): Within a week of his release from jail, he initiated an argument with her as they walked to the police station so that he could report. As she walked away from him, he pulled her by the hair so that she could not get away.
Count 7 (assault): On November 2, 2017, while they were staying at the home of his friend, he became unreasonably jealous that she had been unfaithful to him with that friend. When she replied to him sarcastically, he slapped her hard across the face.
Count 8 (assault): On November 3, 2017, while they were staying at the home of another friend, he became unreasonably jealous that she had been unfaithful to him. He punched her to the face at least once, very hard. She sustained a black eye, which a police officer described as the worst he had seen.
Count 9 (assault): On November 4, 2017, at the home of the same friend they were with on November 2, he became angry about her perceived unfaithfulness. He slapped her in the right eye, causing swelling and bruising in and around the eye.
Count 10 (assault): On November 7 or 8, 2017, while the victim was in the Oshawa Hospital, he pinched her while trying to persuade her to leave the hospital so that the police would not charge him with the previous assaults. The pinching caused bruising on her arms.
Mr. Blair’s Pre-Trial Custody
16Mr. Blair was arrested for these offences on November 11, 2017. He was released on bail on January 16, 2019. His bail ended because of surety revocation, on August 7, 2019. He remained in custody from that date on.
17While in pre-disposition custody at the Central East Correctional Centre, Mr. Blair was locked-down because of staffing shortages or COVID-19 management protocols on approximately 200 occasions. There also were lockdowns while he was at Hamilton-Wentworth Detention Centre, although they were considerably fewer in number.
The Victim Impact Information
18In a detailed Victim Impact Statement, J.M. described being terrified of Mr. Blair, who controlled her every move, including when she could and could not use the washroom. She describes the pain and trauma he caused her as “horrendous”. She suffers from depression, flashbacks, and a distrust of others that has impacted her existing relationships and her ability to meet new people. She was forever changed by what Mr. Blair did to her. It is exhausting for her to live day to day, because of the trauma she carries. She will always fear Mr. Blair.
The Circumstances of Mr. Blair
19Mr. Blair was 24 years old at the time he committed the offences against J.M. He is now 29 years old.
20He was raised by his mother and step-father, without contact with his biological father. He has a younger half-brother. The family was relatively stable as he grew up.
21Mr. Blair told Dr. Pearce that he has a good relationship with his mother, step-father and half-brother. His parents reported, however, that while they have tried to help him over the years, there have been difficulties. He has a very serious temper when drinking or using drugs. He fought with and threatened family members. At times he was not allowed to live at his parents’ home.
22He has no history of being physically or sexually abused.
23Mr. Blair was diagnosed with attention deficit hyperactivity disorder as a child. He became more rebellious as an adolescent. He was suspended from school on multiple occasions. He stopped attending school in grade 10.
24He worked off and on as a labourer for his step-father. There were some issues with his work attendance.
25Mr. Blair identifies as bisexual, buts says he likes women more. He never married, but had various partners or girlfriends. He has a young daughter, whom he has never met or provided for financially.
26Mr. Blair admits to a history of alcohol and drug abuse beginning as a teenager, including cocaine and opioids. He has been on methadone for some time.
27While in custody awaiting disposition of these charges, Mr. Blair completed his high school credits. His teacher described him as a hard-working student. He also participated in courses including Bible and religious studies, and a one-session individual anger management program.
28Mr. Blair’s parents remain supportive of him. His step-father advised that he will employ him in his construction business on release from jail. Mr. Blair will be permitted to return to his parents’ home, with rules in place.
Criminal Record
29Mr. Blair has a lengthy youth and adult criminal record dating back to 2009. It includes multiple offences of violence. He was placed under probation supervision many times, but repeatedly failed to comply with conditions and reoffended while on probation. As a result, his record contains many instances of breaches of probation orders. It also includes failures to comply with bail orders.
30The following is a synopsis of his record of offences:
August 25, 2009: Youth offences including assault of his mother, fail to comply with probation, and fail to comply with youth disposition.
November 2, 2010: Youth offence of assault.
February 17, 2011: Youth offences including uttering threats and fail to comply with youth disposition.
February 22, 2011: Youth offences including fail to comply with youth disposition and fail to comply with recognizance.
May 17, 2011: Youth offence of fail to comply with recognizance.
July 5, 2011: Youth offences including fail to comply with youth disposition and fail to comply with recognizance.
August 4, 2011: Fail to comply with recognizance.
August 30, 2011: Youth offence of theft under.
November 8, 2011: Assault with a weapon (hockey stick) of a girlfriend’s father, fail to comply with youth disposition, and assault and forcible confinement of the girlfriend.
June 20, 2013: Obstruct peace officer.
September 23, 2013: Offences including criminal harassment and assault of a girlfriend.
August 1, 2014: Assault and fail to comply with probation.
August 7, 2014: Drive while impaired and theft under.
August 25, 2014: Fail to comply with probation.
November 14, 2014: Fail to comply with probation and theft under.
March 13, 2015: Sexual interference involving sexual intercourse and other sexual acts, on multiple occasions, with a 14 year old girl.
February 22, 2016: Offences including two counts of assault, and fail to comply with probation. The victims included his father and half-brother.
September 16, 2016: Two counts of assault, and fail to comply with probation. The victims were two different girlfriends.
May 26, 2017: Distribute intimate images without consent, two counts of uttering threats, and fail to comply with recognizance. He sent a topless photo of a former girlfriend to a third party, then told the former girlfriend she should carry a knife to protect herself from him. Additionally, he threatened to kill another woman he had dated.
June 7, 2017: Fail to comply with recognizance.
October 20, 2017: Two counts of fail to comply with recognizance.
October 20, 2017: Offences including assault causing bodily harm and assault. The offences were committed against a girlfriend. The assaults involved choking and hitting the girlfriend in the face.
31While in custody in respect of the current offences, Mr. Blair threatened to harm a correctional officer.
The Dangerous Offender Designation
32The Criminal Code sets out the bases upon which an individual “shall” be found a dangerous offender. They are as follows:
Under s. 753(1)(a)(i), where the offender is convicted of a “serious personal injury offence” as that expression is defined in paragraph (a) of s. 752 and he constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing a pattern of repetitive behaviour by him, of which the offence for which he has been convicted forms a part, showing a failure to restrain his behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his behaviour.
Under s. 753(1)(a)(ii), where the offender is convicted of a “serious personal injury offence” as that expression is defined in paragraph (a) of s. 752 and he constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing a pattern of persistent aggressive behaviour by him, of which the offence for which he has been convicted forms a part, showing a substantial degree of indifference on his part respecting the reasonably foreseeable consequences to other persons of his behaviour.
Under s. 753(1)(a)(iii), where the offender is convicted of a “serious personal injury offence” as that expression is defined in paragraph (a) of s. 752 and he constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing any behaviour associated with the offence that is of such a brutal nature as to compel the conclusion that his behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint.
Under s. 753(1)(b), where the offender is convicted of a “serious personal injury offence” as that expression is defined in paragraph (b) of s. 752 and he has shown by his conduct in any sexual matter including that involved in the commission of the offence, a failure to control his sexual impulses and a likelihood of causing injury, pain or other evil to other persons though failure in the future to control his sexual impulses.
33The first three of these bases address dangerousness resulting from violent behaviour, while the fourth addresses dangerousness resulting from sexual behaviour: R. v. Boutilier, 2017 SCC 64, at para. 16.
34Where a dangerous offender designation is made, by operation of ss. 753(4) and (4.1) the court must impose an indeterminate sentence unless it is satisfied by the evidence that there is a reasonable expectation that a determinate sentence of at least two years in jail and a long-term supervision order of up to 10 years, or a determinate sentence alone, will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.
The Psychiatric Assessment by Dr. Pearce
35Dr. Pearce prepared a very detailed and helpful report. He was examined and cross-examined on it before Justice Salmers.
36Dr. Pearce noted that Mr. Blair reported having attempted suicide on three occasions, most recently in the fall of 2020 while in pre-trial custody. However, Dr. Pearce found that while Mr. Blair has had “some depressive symptoms related to his predicament and/or problematic substance use”, he is not mentally ill.1
37Dr. Pearce observed that substances of abuse have repeatedly been involved in Mr. Blair’s criminal offences, and he has apparently used substances institutionally. Dr. Pearce concluded that Mr. Blair has a serious polysubstance use disorder. It is linked to his offending in that it has helped disinhibit him and/or fuel his aggression. Polysubstance use disorders are treatment-resistant and have a high relapse rate. Mr. Blair participated in limited treatment programming in the past despite treatment being offered to him. However, he told Dr. Pearce he wants to have treatment and maintain sobriety.
38Dr. Pearce could not conclude that Mr. Blair is paraphilic, meaning that he has a core deviant sexual interest. However, it is Dr. Pearce’s opinion that Mr. Blair met the criteria for adolescent-onset conduct disorder, and now suffers from a serious personality disorder, namely a mixed personality disorder with antisocial and borderline traits.
39Dr. Pearce pointed to a number of factors as a foundation for his diagnosis, including:
Mr. Blair’s history of suspension (and possibly expulsion) from school;
His failure to abide by restrictions placed on him despite placement in youth detention centres, and the fact he eschewed treatment programming;
His domestic violence offences and exhibition of a serious temper, his assaults of male victims, and the fact he has had difficulty remaining in the community for months at a time;
His manipulative, demanding and controlling behaviour; and,
The fact he forms intense relationships quickly, and has repeatedly self-harmed, often in response to perceived abandonment.
40On the basis of Mr. Blair’s scores on several standard actuarial risk assessment tools, along with clinical judgement, Dr. Pearce concluded that Mr. Blair is in a high-risk category for violent and sexual recidivism. In other words, he is at high risk of committing another violent or sexual offence, in the absence of any interventions.
41Dr. Pearce expressed the following opinion:
Mr. Blair has been aggressive towards his partners and others. The majority of his domestic violence offences are towards the less severe end of the spectrum though quite certainly, he is capable of inflicting very serious physical and psychological harm. He has sexually assaulted two victims and the index offences were deplorable. He has also reoffended incredibly quickly. Overall, it appears that the severity of his violent and sexual offences is increasing. Thus, he may re-offend imminently, frequently and severely.2
42With respect to the criteria for dangerous offender status under s. 753, Dr. Pearce was careful to say that he could offer opinions from a psychiatric perspective only, and was not suggesting whether the legal requirements are met in this case. It was his view that:
If a pattern of repetitive behaviour is found to exist in accordance with subsection 753(1)(a)(i), Mr. Blair has failed to restrain himself, meaning he has failed to prevent himself from re-offending. He largely minimized his prior offending in speaking with Dr. Pearce. His behaviour has caused and could in the future cause physical injury and/or severe psychological damage to his victims.
If a pattern of persistent aggressive behaviour is found to exist in accordance with s. 753(1)(a)(ii), Mr. Blair has displayed indifference to the reasonably foreseeable consequences of his actions. He has repeatedly been advised of his criminogenic risk factors and he has been able to articulate them, but he was dismissive of treatment and failed to abide by terms imposed on him. He repeatedly declined to attend for sexological assessment. It was reasonably foreseeable he would reoffend violently and/or sexually.
With respect to s. 753(1)(b), Mr. Blair has shown a failure to control his sexual impulses. As he is a high risk for re-offence, there is a likelihood he will commit a future sexual offence if released imminently to the community.3
43Dr. Pearce considered whether Mr. Blair would be suitable for a long-term supervision order. Dr. Pearce described the case as a very challenging one, but noted that Mr. Blair has not previously been offered intensive treatment or been risk-managed by Correctional Service Canada. With a long-term comprehensive treatment plan, assertive monitoring, and Mr. Blair’s acceptance of potent libido-reducing medication, Dr. Pearce believes there is a reasonable expectation of eventual control of Mr. Blair’s risk in the community. Mr. Blair needs programming including anger management programming, substance abuse programming, sexual offender treatment programming, and programs to target antisocial values and attitudes. He rarely participated in treatment in the past, but told Dr. Pearce he was agreeable to this programming.
44Dr. Pearce was very clear that Mr. Blair needs to take anti-libidinal medication prior to release, and then for at least a decade, because of his high risk of sexual re-offending, and also to reduce his immediate motivation to be in a relationship. Mr. Blair told Dr. Pearce he was not agreeable to taking libido-reducing medication. Dr. Pearce left open the prospect that Mr. Blair will re-consider that position. Dr. Pearce also conceded in his testimony before Justice Salmers that it is possible medications other than anti-libidinals might be effective for Mr. Blair.
45Dr. Pearce recommended a number of conditions for inclusion in a long-term supervision order.
The Positions of the Parties
46The Crown seeks to have Mr. Blair designated a dangerous offender on three counts: assault with a weapon (count 2), and sexual assault with a weapon (counts 4 and 5). That designation is sought on all bases in s. 753(1), with s. 753(1)(b) applicable only to counts 4 and 5.
47Through counsel, Mr. Blair concedes that the dangerous offender designation is made out as Crown counsel submits.
48Crown and defence counsel agree that Mr. Blair should be sentenced to concurrent determinate sentences of six and one half years in jail on counts 4 and 5, and on count 2 to two years consecutive, for a total sentence of eight and a half years. Against that sentence, credit should be given for pre-trial custody allocated as four years, so that there is a sentence left to serve of four and a half years. Counsel agree that a sentence yet to be served of four and a half years is necessary so that there is sufficient time for Mr. Blair to complete programming in the penitentiary before his release to the community, taking into account statutory remission. On each count there should be a concurrent long-term supervision order for 10 years.
49Counsel further agree that on the remaining seven counts, Mr. Blair should be sentenced to one year in jail concurrent on each count and to the sentence on all other counts, and on the fail to comply counts in the second indictment to six months in jail on each count concurrent to one another and to the sentence on all other counts.
50The Crown seeks the following ancillary orders, which are not opposed by the defence: DNA on all counts in the first indictment, a s. 109 order for life on all counts in the first indictment, a SOIRA order on counts 4 and 5 in the first indictment, and a s. 743.21 order of non-communication with the victim, J.M.
Analysis
51There is no issue in this case that the offences of assault with a weapon and sexual assault with a weapon are each a “serious personal injury offence” as defined in paragraph (a) of s. 752. Additionally, there is no issue in this case that the offences of sexual assault with a weapon are each a “serious personal injury offence” as defined in paragraph (b) of s. 752. The predicate offences to Mr. Blair’s designation as a dangerous offender are in place.
52Crown and defence counsel agree that Mr. Blair should be designated a dangerous offender, under all four heads of s. 753(1).
53I accept Dr. Pearce’s psychiatric opinions and diagnoses including his assessment of Mr. Blair’s risk of re-offence and his conclusion about reasonable expectation of eventual control of Mr. Blair’s risk in the community.
54I am satisfied beyond a reasonable doubt based on all the evidence including the predicate offences and the facts as found by Justice Salmers, Mr. Blair’s previous offences, and the opinions and diagnoses of Dr. Pearce, that all statutory criteria have been met for designation on counts 2, 4 and 5 under each of ss. 753(1)(a)(i), (ii) and (iii). As required by Boutilier, at paras. 27 and 46, I am satisfied beyond a reasonable doubt after considering all the evidence, including future treatment prospects, that Mr. Blair poses a high likelihood of harmful recidivism and that his violent/aggressive pattern of conduct is intractable, meaning behaviour that he is unable to surmount.
55I also am satisfied beyond a reasonable doubt that all statutory criteria have been met for designation on counts 4 and 5 under s. 753(1)(b). Boutilier was a case in which only s. 753(1)(a) was in issue, but assuming that its reasoning applies by analogy to s. 753(1)(b), I am satisfied beyond a reasonable doubt that Mr. Blair’s failure to control his sexual impulses is intractable, meaning behaviour that he is unable to surmount.
56I designate Mr. Blair a dangerous offender on each of counts 2, 4 and 5.
57I turn now to the sentencing or penalty stage of the proceedings.
58Protection of the public is an enhanced sentencing objective in the case of a dangerous offender. But, as discussed in Boutilier, I also must consider the sentencing principles and mandatory guidelines set out in ss. 718 to 718.2 of the Criminal Code: Boutilier, at paras. 53 to 63. I have done so.
59Section 753(4.1) of the Criminal Code requires that I impose an indeterminate sentence, unless I am satisfied by the evidence that there is a reasonable expectation that a determinate sentence of at least two years with a long-term supervision order, or a determinate sentence alone, will adequately protect the public against the commission by Mr. Blair of murder or a serious personal injury offence.
60I must impose the least intrusive sentence required to achieve the primary purpose of Part XXIV of the Criminal Code, which is public protection. This means that in exercising my discretion under s. 753(4.1), if I am satisfied that a conventional sentence will adequately protect the public against the commission of murder or a serious personal injury offence, then I must impose that sentence. If I am not so satisfied, then I must consider whether I am satisfied that a conventional sentence of a minimum of two years in jail followed by a long-term supervision order for a period up to 10 years will adequately protect the public as described. If I am not so satisfied, then I must impose an indeterminate sentence: Boutilier, at paras. 69 to 70.
61I must turn my mind to whether the risk arising from Mr. Blair’s behaviour can be adequately managed outside of an indeterminate sentence: Boutilier, at para. 31.
62I am not satisfied by the evidence including, in particular, the nature of the predicate offences, their close temporal link and the context in which they occurred of repetitive physical abuse of the victim, Mr. Blair’s previous criminal record, and the assessment of Dr. Pearce, that a conventional sentence will adequately protect the public against the commission of murder or a serious personal injury offence by Mr. Blair.
63Although this is, as Dr. Pearce said, a challenging case, I am satisfied and agree with counsel that a determinate sentence of at least two years in jail with a long-term supervision order of 10 years that provides structure and monitoring will adequately protect the public against the commission by Mr. Blair of murder or a serious personal injury offence.
64There is evidence in this case of treatability that is more than an expression of hope. I acknowledge that Mr. Blair has rarely participated in treatment in the past, but he has not had the benefit of the resources available in the federal correctional system. He told Dr. Pearce that he wants to have treatment for his substance abuse and to remain sober. While in custody he has continued on a methadone program. He also told Dr. Pearce that he is agreeable to the intensive programming available through Correctional Service Canada including for anger management and sexual offending. Dr. Pearce indicated that this programming is necessary in light of Mr. Blair’s diagnosed personality disorder and its antisocial and borderline traits. Mr. Blair’s efforts while in pre-disposition custody, including completion of a short anger management course, show a measure of motivation to participate in programming.
65I also take into account that Mr. Blair has the pro-social support of his family.
66I am aware that Mr. Blair expressed that he does not want to take anti-libidinal medication, which Dr. Pearce views as important to control Mr. Blair’s risk for re-offence. Dr. Pearce acknowledged the prospect that Mr. Blair will change his mind about this once he engages in treatment. Dr. Pearce also acknowledged the possibility that medications other than anti-libidinals might prove effective for Mr. Blair.
67I turn now to the length of the determinate sentence.
68The maximum sentence for sexual assault with a weapon is 14 years in jail. For assault with a weapon the maximum is 10 years in jail.
69In R. v. Spilman, 2018 ONCA 551, the Ontario Court of Appeal addressed whether, in deciding the length of a determinate sentence, the sentencing judge is restricted to imposing a term of imprisonment that would be appropriate for the predicate offence if the offender were not designated a dangerous offender. The Court decided that the judge is not so restricted. The judge must take into account the statutory limits of the offence for which the sentence is being imposed, the paramount purpose of public protection under the dangerous offender scheme in the Criminal Code, and other applicable sentencing principles in ss. 718 to 718.2. This may justify determinate sentences “lengthier than those appropriate outside the dangerous offender context”: Spilman, at para. 32. The Court enumerated six rationales for this, including that protection of the public is an enhanced objective of sentencing an offender who is designated a dangerous offender because of their past, current and likely future conduct; and that the offender is being sentenced “not only as a person who committed the predicate offence, but because he is a dangerous offender”: Spilman, at paras. 33 to 38.
70The predicate offences involve significant aggravating features. All were committed against an intimate partner, which is a statutorily aggravating factor under s. 718.2(ii) and also a sentencing consideration under s. 718.201 because of J.M.’s gender. The three offences were committed within the same brief three-week period. They were part of a harrowing series of physical assaults of J.M. Two of the predicate offences involved a weapon capable of causing very serious bodily harm or worse, namely a knife. Two of the predicate offences involved not just the threat of bodily harm, but the actual use of the particular weapon.
71While all three predicate offences were borne of intense anger on Mr. Blair’s part, the sexual assault with the deodorant can stands apart because of its shocking vulgarity and grossly humiliating and demeaning aspects. Mr. Blair forced J.M. to strip naked. He urinated on her. He dumped condiments on her. He then photographed her in that state, and threatened to send the photographs to others. In addition to inserting a deodorant can in her vagina, he had vaginal sex with her. His conduct was a prototypical assertion of dominance and control by a male over a vulnerable female intimate partner. Even apart from the dangerous offender context, this offence could warrant a lengthy penitentiary sentence because of its highly aggravating aspects.
72Mr. Blair is a repeat offender. His youth and criminal record, including offences of violence against other intimate partners, and repeated breaches of court orders is an aggravating factor. So too is the fact that he committed the predicate offences notwithstanding that he was bound by multiple probation orders at the time.
73The impact on J.M. of Mr. Blair’s conduct, including the predicate offences, has been lasting and profound.
74There are some mitigating factors. Mr. Blair’s ultimate consent to be found a dangerous offender by me and his agreement with the Crown’s position as to sentence has saved court time that is in high demand due to the backlog of cases caused by the pandemic. As I have noted already, Mr. Blair engaged in some programming while in pre-disposition custody. He has some support in the community which will assist him in re-establishing himself on his release under supervision.
75I also consider pursuant to R. v. Marshall, 2021 ONCA 344, that Mr. Blair was subjected to numerous lockdowns because of staffing shortages and COVID-19 protocols. I am told that he was physically assaulted by another inmate at one of the detention centres. All of this made his detention harsher than usual, as did the fact that some of it was spent during the pandemic when congregate living settings posed particular health risks.
76However, Mr. Blair is being sentenced as a dangerous offender, and protection of the public is an enhanced sentencing objective in this case.
77A lengthy penitentiary sentence is required to protect the public from Mr. Blair. I agree with Crown and defence counsel that a total penitentiary sentence of eight and one half years is the least intrusive sentence required to serve the public protection purpose of Part XXIV of the Criminal Code. I also agree that even though Mr. Blair’s time in pre-disposition custody somewhat exceeds four years on a one-to-one basis, it is appropriate to cap the credit for that custody at four years. This is to ensure that there will be adequate time for him to complete the intensive programming and treatment that he needs in the penitentiary, before he is released to the community under supervision.
78I accept counsels’ joint suggestion as to the concurrent sentences to be imposed for the non-predicate offences of assault and fail to comply with probation. This is not to minimize the seriousness of any of those offences, some of which involved injury to J.M., and others that demonstrated Mr. Blair’s flagrant disregard for court orders previously imposed. Rather, it recognizes the sentencing principle of totality.
79In respect of each of the the predicate offences, the penitentiary sentence will be followed by a long-term supervision order for 10 years. I recommend that the following conditions be included in the order:
Report as required by Correctional Service Canada.
Reside where directed by Correctional Service Canada and follow the rules of that residence.
Upon request, present yourself at the door of your residence to Correctional Service Canada or a peace officer for the purpose of ensuring compliance with this order.
Take any counselling as directed by Correctional Service Canada including domestic violence programming, intensive sexual offender treatment programming, anger management therapy, and substance abuse treatment.
Follow any treatment program as directed by a physician/psychiatrist and sign any releases in favour of Correctional Service Canada to allow the program to be monitored. This treatment program may include sex-drive reducing pharmacology. Any refusal by you to consent to the prescription of sex-drive reducing medication shall be promptly reported by the physician/psychiatrist to Correctional Service Canada.
Upon request, take any medication prescribed to you as prescribed, in the presence of Correctional Service Canada staff or their designate.
Not possess or consume any non-prescribed drugs or alcohol.
Submit to random blood tests and urine toxicology screening in order to monitor compliance with prescribed medications and abstinence from non-prescribed drugs and alcohol.
Immediately inform Correctional Service Canada if you enter into an intimate relationship with any person, including the contact information for that person.
Not associate with any person deemed unsuitable by Correctional Service Canada.
Not communicate, including by electronic means, or associate with any person under the age of 16 years.
Not reside in a residence with any person under the age of 16 years.
Not possess any weapon.
Abide by any boundary or geographical restrictions imposed by Correctional Service Canada.
Keep the peace and be of good behaviour.
Conclusion
80On count 4 on Indictment A you are sentenced to six and one half years in jail less three and one half years of pre-trial custody credit, on count 5 to six and one half years in jail concurrent less three and one half years of pre-trial custody credit, and on count 2 to two years in jail consecutive less six months of pre-trial custody credit, for a total sentence of eight and one half years, less pre-trial custody credited as four years, leaving a total sentence to serve of four and one half years.
81That sentence will be followed on each count by a long-term supervision order for 10 years, concurrent.
82On each of counts 1, 3, 6, 7, 8, 9 and 10 the sentence is one year in jail concurrent.
83There is a DNA order and a s. 109(2)(b) order for life on each count in Indictment A.
84On counts 4 and 5 there is a SOIRA order for 20 years.
85On Indictment B, the sentence on each count is six months in jail concurrent and concurrent to the sentence on all other counts.
86While you are in custody, you are bound by a s. 743.21 order of non-communication with J.M.
Justice M.K. Fuerst
Released: July 29, 2022
NOTE: As noted in court on the record, these written reasons are to be considered the official version and take precedence over the oral reasons read into the record. In the event of discrepancies between the oral and written versions, it is the written reasons that are to be relied upon.
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
BRADY BLAIR
Defendant
REASONS FOR JUDGMENT
Justice M.K. Fuerst
Released: July 29, 2022