[CITATION](http://intra.judicialsecurity.jus.gov.on.ca/NeutralCitation/): R. v. Connell, 2022 ONSC 4703

COURT FILE NO.: CR-17-30000524-0000

DATE: 20220817

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

WAYNE CONNELL

K. Farrell and J. Dunda, for the Crown

C. Fromstein and D. Connally, for Mr. Connell

HEARD: November 30, December 3, 6, 9, 2021 and February 23, 24 and March 22, 2022

REasons on dangerous offender application

H. mcarthur J.:

A. Introduction

[1] The Crown brings an application to have Wayne Connell declared a dangerous offender and sentenced to an indeterminate period of custody.

[2] The offences triggering the application (the “predicate offences”) occurred on July 13, 2016, when Mr. Connell arranged to meet with a sex trade worker. Once in her hotel room, he forced her to perform fellatio at knifepoint, after which he confined her, threatened to rape her, and physically assaulted her.

[3] Mr. Connell was not apprehended until August 1, 2016. In the two weeks between the predicate offences and Mr. Connell’s arrest, he was involved in other concerning incidents. In one, he tried to drag a woman who was a stranger to him from her backyard into her home, while holding a knife to her throat.

[4] Mr. Connell has substantial mental health issues. He has a history of non-compliance with his medication, which has led to frightening and criminal behaviour. Mr. Connell also has substance abuse issues that exacerbate his mental illness. He has anti-social-personality traits. In addition to the offences noted above, Mr. Connell has a lengthy criminal record that includes a sexual assault from 2012 and other crimes of violence. Dr. Derek Pallandi, who conducted an assessment pursuant to s. 752.1 of the Criminal Code, R.S.C. 1985, c. C-46, opined that Mr. Connell poses a high risk of harmful sexual and/or violent recidivism.

[5] The Crown argues that Mr. Connell poses a future threat to the lives and safety of the public based on his violent and sexual behaviour and that his conduct is intractable. Only an indeterminate sentence, the Crown submits, will adequately protect the public from the risk posed by Mr. Connell. In the alternative, the Crown asks me to find Mr. Connell to be a long-term offender pursuant to s. 753.1(1) of the Criminal Code.

[6] The defence concedes that Mr. Connell poses a substantial risk to the safety of the public, and that he should be designated as a long-term offender. But Mr. Connell’s criminality, the defence asserts, is largely linked to his substantial mental health issues. When properly medicated, his risk of offending is significantly reduced. He has been housed in a forensic psychiatric facility for about two years. He has been taking his medication voluntarily. He has engaged in programming and upgrading his education. He works well with his treatment providers. Mr. Connell has shown his commitment to continuing his psychiatric care in the community. Dr. Pallandi testified that there is a clinically defensible air of reality to expect to manage Mr. Connell’s risk in the community. Based on his demonstrable progress, the defence argues that the Crown has failed to establish that Mr. Connell poses the tremendous future risk to the public required to ground a dangerous offender designation.

[7] For the reasons set out below, I have concluded that a dangerous offender designation is not required in the circumstances. Rather, the evidence supports that Mr. Connell should be designated a long-term offender. He poses a substantial risk of harmful recidivism, but there is a reasonable possibility that this risk can eventually be managed in the community. The supervision order will be for 10 years following Mr. Connell’s release from custody. As a long-term offender, Mr. Connell will be under the supervision of Corrections Service Canada (“CSC”) for the duration of the order.

[8] As of today, Mr. Connell has served the equivalent of 6 years and 5 months of pre-sentence custody. In my view, this is a fit and proportionate sentence given the offence and Mr. Connell’s personal circumstances. The sentence gives voice to the paramount objectives of denunciation and deterrence, while still acknowledging the objective of rehabilitation and the principle of restraint.

[9] However, if Mr. Connell were to be released today, there would be no time for CSC to formulate a correctional plan, which will inform the conditions of his long-term supervision order. A proper plan is essential to ensure that the risk posed by Mr. Connell is properly addressed.

[10] To allow CSC time to develop Mr. Connell’s correctional release plan, I am sentencing Mr. Connell to a further 90 days in custody. Upon his release from custody, he will be subject to a long-term supervision order for 10 years.

[11] I begin my reasons by explaining the legal framework for dangerous offender applications.

B. Legal Framework for Dangerous Offender Applications

[12] Dangerous offender proceedings are sentencing proceedings and the sentencing principles and mandatory guidelines set out in ss. 718 to 718.2 of the Criminal Code must be considered: R. v. Johnson, 2003 SCC 46, at para. 23; R. v. Steele, 2014 SCC 61, at para. 40. However, there is a distinct statutory regime that applies in this context, which is set out in Part XXIV of the Criminal Code.

[13] The primary purpose of the dangerous offender provisions is the protection of the public: R. v. Lyons, [1987] 2 S.C.R. 309, at paras. 26-27; R. v. Jones, [1994] 2 S.C.R. 229, at paras. 124-125; and Johnson, at paras. 19, 23 and 29. That said, although protection of the public is the primary purpose of a dangerous offender proceeding, this objective does not operate to the exclusion of all others. Rather, preventive detention “represents a judgment that the relative importance of the objectives of rehabilitation, deterrence and retribution are greatly attenuated in the circumstances of the individual case, and that of prevention, correspondingly increased”: Lyons, at para. 27; see also R. v. Boutilier, 2017 SCC 64, at para. 55.

[14] Dangerous offender proceedings involve a two-stage process: 1) the designation stage and 2) the penalty stage. “The designation stage is concerned with assessing the future threat posed by an offender. The penalty stage is concerned with imposing the appropriate sentence to manage the established threat”: Boutilier, at para. 31.

The Designation Stage

[15] At the designation stage, the court must determine whether the evidence adduced at the hearing satisfies the requirements of s. 753(1) of the Criminal Code for the offender to be designated a dangerous offender: Boutilier, at para. 14. “Section 753(1) contemplates two categories of dangerousness: (a) dangerousness resulting from violent behaviour …, and (b) dangerousness ensuing from sexual behaviour”: Boutilier, at para. 16.

[16] Where the Crown seeks to obtain a designation of dangerousness stemming from the offender’s violent behaviour, they must prove two things beyond a reasonable doubt.

[17] First, the Crown must prove that the offence for which the offender has been convicted (the predicate offence) is a “serious personal injury offence” as defined in s. 752(a) of the Criminal Code.

[18] Second, pursuant to s. 753(1)(a) the Crown must establish that the offender poses “a threat to the life, safety or physical or mental well-being of other persons” based on three potential patterns of conduct:

(i) a pattern of repetitive behaviour by the offender, of which the offence for which they have been convicted forms a part, showing a failure to restrain their 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 their behaviour,

(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which they have been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of their behaviour, or

(iii) any behaviour by the offender, associated with the offence for which they have been convicted, that is of such a brutal nature as to compel the conclusion that the offender's behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint.

[19] When seeking a designation of dangerousness ensuing from sexual behaviour the Crown must prove two things beyond a reasonable doubt.

[20] First, that the predicate offence is a “serious personal injury offence” as defined in s. 752(b) of the Criminal Code.

[21] Second, pursuant to pursuant to s. 753(1)(b) of the Criminal Code that:

the offender, by their conduct in any sexual matter including that involved in the commission of the predicate offence, has shown a failure to control their sexual impulses, and has shown a likelihood of causing injury, pain, or other evil to other persons through failure in the future to control their sexual impulses.

[22] A comparison of the wording of the four different statutory routes for a finding of dangerousness reveals a curious anomaly. Section 753(1)(a)(i) requires the Crown to establish beyond a reasonable doubt that Mr. Connell poses a threat to others because of a failure in the future to restrain his conduct. Similarly, s. 753(1)(b) requires the Crown to establish that Mr. Connell will cause harm to others through a failure in the future to control his sexual impulses. Section 753(1)(a)(iii) also directs the sentencing judge to consider the offender’s future behaviour when considering whether they should be designated as dangerous.

[23] In contrast, s. 753(1)(a)(ii) does not specify that the court should look at future behaviour. Despite the difference in wording, it seems clear from Boutilier that for any of the statutory routes under the dangerous offender regime, the assessment of the threat posed is prospective and must take into consideration future treatment prospects. To emphasize this prospective approach, the court summarized the various paths to dangerousness as requiring the Crown to “demonstrate, beyond a reasonable doubt, a high likelihood of harmful recidivism and the intractability of the pattern of conduct”: Boutilier, at para. 46.

[24] I note that ss. 753(1)(a)(i) and 753(1)(b) use the word “likelihood”, not the phrase “high likelihood” used by the court in Boutilier. The Crown pointed to several decisions where courts have found that the likelihood standard in the dangerous offender context should be equated with a mere probability: R. v. H., 2002 NSCA 138, at paras. 24, 50 and 72; R. v. Neve, 1999 ABCA 206, at paras. 75, 91 and 114.

[25] These decisions, however, pre-date Boutilier, where the court repeatedly cautioned that the Crown must establish a high likelihood of harmful recidivism to ground a dangerous offender application: see paras. 26-27 and 45-46.

[26] Further, the statutory routes for a dangerous offender designation set out in ss. 753(1)(a)(i) and 753(1)(b) are similar to those for a long-term offender designation set out in s. 753.1(2)(b) of the Criminal Code - the sections all refer to the “likelihood” of harmful recidivism. But if the likelihood standard is equated to probability in both the dangerous offender and the long-term offender contexts, then there is little to distinguish them. Yet the court in Boutilier explained that the long-term offender designation criteria are less onerous than those for a dangerous offender designation and that the two regimes cannot be said to target the same offenders: at para. 75. As explained in Boutilier, a “rigorous application of the designation criteria under s. 753(1) ensures that the provision does not overreach by capturing offenders that should not face the risk of a sentence of indeterminate detention”: at para. 77.

[27] In my view, Boutilier establishes that the term likelihood in the dangerous offender context is a very high standard that at a minimum should be equated with probability: R. v. J.T., 2021 ONSC 366, at para 145; see also R. v. Parfitt, 2021 SKQB 123, at para. 73. Moreover, there is some authority to support that it is an error to apply the “less stringent” standard of likelihood in the dangerous offender context: R. v. Boalag, 2020 NLCA 33, at para. 13

[28] Whether defining the standard as a mere probability or something more, the sentencing judge is obliged to carefully scrutinize the record to ensure that any evidence said to support a finding of dangerousness is clear, convincing, and cogent. The likelihood of violent recidivism must be proven beyond a reasonable doubt. Thus, the evidence should have such a high degree of clarity, persuasiveness, and strength that the court can be sure that the offender poses a probable risk of harmful recidivism.

[29] As for intractable conduct, that is behaviour that the offender is unable to surmount: Boutilier, at para. 27. Rather than merely looking at whether the offender's conduct has been intractable in the past, the sentencing judge must assess the matter prospectively and be satisfied that the conduct will be intractable into the future. As explained in Lyons, at para. 43, the court must be satisfied that the pattern of conduct is “substantially or pathologically intractable.” This prospective approach ensures that only offenders who pose a “tremendous future risk” are designated as dangerous: Boutilier, at para. 46.

[30] If the Crown establishes beyond a reasonable doubt that the predicate offence is a serious personal injury offence and that the offender poses a threat to the lives or safety of others based on the above patterns of conduct, or that the offender is likely to cause injury, pain, or other evil through a failure in the future to control their sexual impulses, then the offender must be designated a dangerous offender. The court has no discretion. The proceeding then moves to the penalty stage.

The Penalty Stage

[31] Section 753(4) of the Criminal Code lists the three sentencing dispositions open to the sentencing judge at the penalty stage:

a) impose a sentence of detention in a penitentiary for an indeterminate period;

b) impose a sentence of a term of imprisonment of at least two years for the predicate offence, followed by a period of long-term supervision of not more than 10 years; or

c) impose a sentence for the predicate offence.

[32] Section 753(4.1) provides that the sentencing judge “shall” impose an indeterminate sentence unless “there is a reasonable expectation that a lesser measure” of either a conventional fixed-term sentence or a fixed-term sentence of at least two years followed by a long-term supervision order “will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.”

[33] The sentencing judge must first “exhaust” the less coercive sentencing options set out in s. 753(4)(b) and (c) before imposing an indeterminate sentence: R. v. Spilman, 2018 ONCA 551, at para. 30; Boutilier, at para. 69. That is, the sentencing judge must first consider whether a conventional sentence would adequately protect the public from the risk of dangerous recidivism. If not, the sentencing judge must next consider whether a fixed-term sentence of at least two years followed by a long-term supervision order would address this risk. Finally, if it would not, the judge must impose an indeterminate sentence. The sentencing judge must impose the “least intrusive sentence” required to achieve the primary purpose of the dangerous offender scheme – the protection of society from the risk presented by violent offenders at risk of reoffending: Boutilier, at para. 60.

C. Evidence at the Dangerous Offender Hearing

[34] Given the potentially draconian consequences of dangerous offender proceedings, they often involve voluminous materials to ensure that the sentencing judge has a full and accurate understanding of the offender’s background. Such was the case in Mr. Connell’s hearing.

[35] I do not intend to provide a detailed outline of the testimony of the witnesses at the hearing but will refer to the evidence as necessary in my analysis.

[36] In this section of my reasons dealing with the evidence, I will first outline Mr. Connell’s criminal history, starting with the predicate offences. I will then summarize his mental health and psychiatric history. Finally, I will detail Dr. Pallandi’s evidence.

a. Mr. Connell’s Criminal History

The Predicate Offences

[37] In July 2016, the victim S.M. was working in the sex trade. On July 13, 2016, she posted an advertisement on Craigslist, to which Mr. Connell responded. They texted each other and arranged to meet at the hotel where S.M. was staying. At trial, Mr. Connell testified that he initially went to the hotel intending to rob S.M.

[38] After arriving at the hotel, Mr. Connell pulled a knife out of his pocket. He held the knife to S.M.’s throat and told her not to scream or he would “stab or slice” her. S.M. told Mr. Connell that she did not have money. Mr. Connell responded by saying, “then blow me.” While holding his knife a few inches from S.M.’s neck, Mr. Connell put his penis in her mouth, without a condom. After several minutes of forced fellatio, S.M. told Mr. Connell to put his knife away and lie down, in the hopes that she could escape. Mr. Connell laid down on the bed, and S.M. continued to perform fellatio until he ejaculated in her mouth.

[39] Mr. Connell then told S.M. that he was not going leave and was going to stay and have sex with her. S.M. panicked, fearing for her life and began to scream as she ran to the door. Mr. Connell grabbed her and dragged her back to the bed. He put a pillow over S.M.’s face to muffle her screams. He punched her in the head several times.

[40] Mr. Connell then tried to drag S.M. into the bathroom. She spoke to him calmly and tried to convince him that the police were likely coming because of her screaming. She told Mr. Connell she would not report anything. Mr. Connell then left and S.M. called the police.

[41] On July 30, 2016, Mr. Connell again responded to an advertisement placed by S.M. Because of the incident two weeks earlier with Mr. Connell, S.M. had started meeting clients at a male friend’s house. She agreed to meet Mr. Connell without realizing that it was him. When he arrived at the door, she yelled to her male friend that it was “the rapist.” Mr. Connell looked shocked and ran away.

[42] At the time of the offence, Mr. Connell was on probation, subject to a s. 109 order weapons prohibition order, and was on the National Sex Offender Registry, pursuant to an order under the Sex Information Registration Act (“SOIRA”).

[43] Following a trial, I found Mr. Connell guilty of sexual assault with a weapon, robbery, forcible confinement, and two counts of failing to comply with probation.

[44] While S.M. did not file a Victim Impact Statement, I had the opportunity to hear from her when she testified at trial. There is no doubt that Mr. Connell’s attack had a profound impact on her sense of dignity and security and that he caused her psychological harm.

[45] Mr. Connell was not arrested until August 1, 2016, approximately two weeks after he sexually assaulted S.M. During these two weeks, he was involved in other troubling offences.

Offences between the Predicate Offences and Mr. Connell’s Arrest on August 1, 2016

[46] Sixteen days after the predicate offences, on July 29, 2016, Mr. Connell entered A.S.’s house through an unlocked door. He did not know A.S. He took cash, debit, and credit cards from A.S.’s purse. As he rifled through her purse, a male resident was sleeping on the couch, about four feet away. A.S. noticed that these items were missing and called the police.

[47] Mr. Connell used the stolen cards at retail stores on July 30, 2016. That was the same day that he had again responded to the advertisement placed by S.M. and ran away when she called out “rapist”.

[48] Two days after that, on August 1, 2016, Mr. Connell entered an unlocked garage in a residential area. A neighbour saw him leaving the garage and confronted him. Mr. Connell fled and dropped his wallet. Police attended the area with tracking dogs and began to search for him.

[49] When Mr. Connell realized that he was missing his wallet, he went into the backyard of a home where C.M. was sitting alone. He asked C.M. if she had seen his wallet and she responded “no”. Mr. Connell left.

[50] Mr. Connell then returned to C.M.’s backyard shortly afterward. He asked C.M. again if she had seen his wallet. Mr. Connell then asked her if anyone else was home. C.M. was concerned for her safety and said yes, even though she was alone.

[51] Mr. Connell pulled out a knife and held it to C.M.’s neck. He tried to cover her mouth with his other hand. C.M. grabbed the knife and tried to push it away, cutting herself as she struggled. She screamed.

[52] Mr. Connell grabbed a sock from the deck and tried to push it into C.M.’s mouth. He told her to shut up. They struggled and Mr. Connell held C.M. down on the ground. He then tried to force C.M. inside the house.

[53] A neighbour overhead the commotion and ran over to intervene. Mr. Connell fled. Police officers found him a short while later in the crawlspace under the porch of a nearby home. Upon arrest, Mr. Connell was found in possession of the debit and credit cards he stole from A.S. on July 29.

[54] The attack had a profound impact on C.M. C.M suffered a cut to her hand as well as bruising on both arms. She suffered from extreme anxiety and moved from Toronto because of her fears of being attacked again. C.M. expressed at the end of her Victim Impact Statement her hope that Mr. Connell would get the help that he needed.

[55] On November 14, 2018, Mr. Connell pleaded guilty to break and enter and assault with a weapon in relation to these offences. On December 4, 2018, Mr. Connell received a global sentence of three years; one year on the break and enter, two years consecutive on the assault with a weapon, and six months concurrent on the fail to comply. He also received a s. 109 order for life and was required to provide a sample of his DNA.

Other Sexual Assault: Offence Date, September 30, 2012

[56] Mr. Connell committed a robbery and sexual assault on September 30, 2012, shortly before his 19th birthday.

[57] On that date, Mr. Connell approached the victim, J.C., in a park. He began to talk to her, and then suddenly put his arm around her shoulder. He then pushed what J.C. described as a handgun into her abdomen. She screamed. Mr. Connell told her that if she kept yelling, he would shoot her.

[58] Mr. Connell directed J.C. to walk to a remote area of the park. As he did, he kept physical control of her and had an imitation firearm pointed at her abdomen. Once in a wooded area, J.C. began to struggle and fell to the ground, screaming. Mr. Connell again told her that he would hurt her if she did not stop.

[59] Mr. Connell then began feeling J.C.’s body, as if looking for items to steal. She was afraid he was going to sexually assault her, so she told him that she had AIDS and had recently had surgery. Mr. Connell responded by saying, “then give me head.”

[60] J.C. continued to resist. Eventually Mr. Connell ran away. J.C. suffered a sore abdomen, scratches, and bruising. As her Victim Impact Statement made clear, Mr. Connell’s assault had a significant impact on J.C. She expressed how she had been robbed of her sense of personal security and that she felt afraid all the time, and of everyone.

[61] Mr. Connell was not arrested at the time of the offence and the authorities did not know who had assaulted J.C. However, police recovered cells under J.C.’s fingernails that were suitable for DNA comparison and put in the DNA bank. The sample matched with Mr. Connell’s DNA in April 2013.

[62] On November 21, 2013, Mr. Connell pleaded guilty to sexual assault and use of an imitation firearm. When she asked what facts grounded the sexual assault count, the sentencing judge was advised it was Mr. Connell’s comment, “then give me head.” She made a finding of guilt on the sexual assault count on that basis.

[63] Mr. Connell was sentenced on February 26, 2014, to 3-years custody, minus credit for 13 months of pre-sentence custody. Thus, his effective sentence as of the sentencing date was 2 years less a day. He was also sentenced to a 3-year probation order, a 20-year SOIRA order and a s. 109 weapons-prohibition order for 20 years. Mr. Connell was released on parole on June 28, 2015.

Other Violent, Aggressive or Troubling Offences

[64] Mr. Connell has committed other offences involving violence or aggressive or troubling conduct. The following briefly sets out the details of these offences.

• Assault: Offence Date, April 22, 2012

[65] On April 22, 2012, Mr. Connell was at his cousin S.F.’s home, with S.F. and Mr. Connell’s mother. S.F.’s common-law spouse, A.C., came home. He was angry that people were there and told them to leave.

[66] S.F. and A.C. had a history of domestic disputes. Mr. Connell confronted A.C. about an assault by him against S.F. the previous day. A.C. told Mr. Connell it was none of his business.

[67] The two men then got into a physical fight. Mr. Connell’s mother tried to break up the fight, and A.C. punched her in the head. At that stage, S.F. and another person tried to pull A.C. off Mr. Connell’s mother. Everyone then ran down the stairs to the front of the building. A.C. was still upstairs and realised that he had been stabbed.

[68] Mr. Connell was originally charged with aggravated assault. This seemed to be based on information from his mother that she had seen him come down the stairs with a knife, and then go down a laneway and return without a knife. However, no knife was ever recovered.

[69] Mr. Connell was originally charged with aggravated assault. However, on July 3, 2013, Mr. Connell pleaded guilty to assault simpliciter. He did not admit to stabbing A.C. Instead, the sentencing judge asked Mr. Connell the following question, “do you acknowledge that in your interaction with [A.C.], some of your activities amounted to assaulting him?” Mr. Connell replied, “yes.” Based on that admission, there was a finding of guilt.

[70] Given the totality of the circumstances, which included the fact that Mr. Connell was trying to prevent A.C. from assaulting his mother, Mr. Connell received a conditional sentence with probation for 12 months. The sentencing judge also ordered that Mr. Connell provide a DNA sample for entry into the DNA databank.

[71] The Crown obtained approval from the Minister of Public Safety and Emergency Preparedness for access to, and disclosure of, this conditional discharge, per section 6.1(1)(a) of the Criminal Records Act, R.S.C. 1985, c C.47 and R. v. Montesano, 2019 ONCA 194.

[72] While the Crown factum referred to this incident several times as a stabbing, that offence was never admitted or proven. Unproven allegations cannot be used to support a finding of dangerousness. Given the facts that were admitted, in my view, this incident does not assist a great deal in assessing any risk posed by Mr. Connell. Dr. Pallandi agreed that that this incident is not in the same category of seriousness as the sexual assault offences and the August 1, 2016, offences.

• Theft Under $5000: Offence Date, October 24, 2012

[73] On October 24, 2012, F.M. was walking in downtown Toronto, when Mr. Connell approached him and began to walk beside him. F.M. tried to move away, but Mr. Connell stayed close. As F.M. went to a bus shelter, Mr Connell reached into the victim’s right pocket, removed his iPhone, and ran away. F.M. chased after Mr. Connell and yelled for help. Other bystanders assisted in apprehending Mr. Connell and held him until police arrived. At the time, Mr. Connell was on a release order that required him to keep the peace and be of good behaviour.

[74] He pleaded guilty on April 24, 2013. He was sentenced to a suspended sentence and 12-months probation.

• Unlawfully in a Dwelling: Offence Date, April 1, 2013

[75] Mr. Connell was convicted of being unlawfully in a dwelling home in April 2013. The context makes clear that this offence took place at a time when Mr. Connell was decompensating.

[76] Mr. Connell and J.A. are cousins. On March 11, 2013, J.A. returned to her home and found Mr. Connell in her apartment without her permission. She contacted police and he was removed.

[77] Mr. Connell returned to her apartment the next day. She contacted the police again. Mr. Connell was apprehended on a Form 1 under the Mental Health Act, R.S.O. 1990, c M.7. He was discharged on March 23, 2013. On April 1, 2013, J.A. returned to her apartment and again found Mr. Connell in her home, lying on her sofa. She called the police, who came and arrested Mr. Connell.

[78] At the dangerous offender hearing before me, J.A. wrote a letter supporting Mr. Connell. J.A. explained the incident as follows:

In the past I had allowed Wayne to sleep on my couch. But at the time of the charges, I called police because he was clearly mentally sick … I called the police to get help for him because he was mentally ill.

[79] The police, however, charged Mr. Connell and took him into custody. Defence counsel at the time advised the sentencing judge that the police told him, “Well, we have to charge him with something. His behaviour is disturbing his relatives.”

[80] On April 2, 2013, Mr. Connell pleaded guilty to being unlawfully in a dwelling. Considering the equivalent of 3-days-pre-sentence custody, Mr. Connell received a suspended sentence and 2 years of probation. The sentencing judge also ordered that Mr. Connell provide a sample of his DNA.

• Assault: Offence Date, April 21, 2013

[81] On April 21, 2013, Mr. Connell went to the emergency department of the Toronto East General Hospital complaining of ankle pain. Medical staff examined him and performed tests. Mr. Connell was reportedly aggressive and agitated with the doctor, who then called for hospital security to stand by. When test results were received, they did not show any apparent injury to his ankle.

[82] The doctor told Mr. Connell that he was free to go and asked a security officer R.F., to escort him from the emergency department. Mr. Connell became upset and began to shout and swear at R.F. Mr. Connell then swung his left arm, attempting to strike R.F. in the face. R.F. blocked the strike and arrested Mr. Connell. Other security officer assisted R.F. with handcuffing Mr. Connell and holding him until the police arrived.

[83] On April 23, 2013, Mr. Connell pleaded guilty to assault. Considering the equivalent of 3 days of pre-sentence custody, Mr. Connell received a suspended sentence and 12 months of probation.

• Theft Under $5000, Fail to Comply with Recognizance: Offence Date, April 28, 2013

[84] On April 28, 2013, Mr. Connell approached the victim S.P. and asked if he had any spare change. Mr. Connell saw S.P. was wearing a watch. He grabbed S.P.’s wrist, demanded to see the watch, and pulled on the watch band. Mr. Connell then grabbed the bag that S.P. was holding and ripped it out of his hand. After looking in the bag and seeing that it contained food, Mr. Connell threw the bag to the ground. S.P. ran away and found a police officer nearby, who located and arrested Mr. Connell.

[85] It was after this arrest that the police linked Mr. Connell to the September 2012 sexual assault through a DNA match. He was detained on those offences, as well as on the theft under $5000.

[86] On September 25, 2013, Mr. Connell pleaded guilty to theft under $5000 and failing to comply with probation. He “used up” 36 days of pre-sentence custody for those offences.

Other Criminal Offences

[87] Much of Mr. Connell’s remaining criminal record, involves fairly minor offences. Things such as sleeping in a stairwell and giving a false name to the investigating Officer. Smoking marijuana rather than going to court as required, and giving a false name when police investigate. Failing to keep the peace and be of good behaviour. Being disruptive in a community center. Stealing some clothing from Winners. Offences that were dealt with by guilty pleas in the Ontario Court of Justice, resulting in suspended sentences because of his pre-sentence custody, or short sharp sentences.

[88] Given that these offences carry small freight in the analysis, I do not intend to set out the facts of these incidents in any more detail.

[89] I note, however, that a review of the transcripts from Mr. Connell’s previous criminal matters shows that there were ongoing concerns with his mental health.

b. Mental Health and Psychiatric History

[90] Extensive materials relating to Mr. Connell’s psychiatric history were filed during the hearing. The following is a summary of this evidence.

Youth/Young Adult Hospital Admissions and Treatment History (2007-2012)

[91] Mr. Connell was first diagnosed with possible schizophrenia when he was 13 years old.

[92] He was admitted to the hospital due to acute psychiatric crises at least 15 times between the ages of 15 and 20. Most of these were involuntary admissions, pursuant to a Form 1 under the Mental Health Act.

[93] A review of the records of these admissions establishes a pattern. First, Mr. Connell would suffer acute psychosis either because he was not taking his prescribed anti-psychotic medication, and/or consuming cannabis. He would then decompensate in a frightening way and become verbally and physically violent. After being admitted to the hospital, Mr. Connell’s behaviour would be described as “bizarre,” “aggressive,” “belligerent” and “threatening”. He suffered from hallucinations and paranoia. He would present with a lack of insight into his illness or his need for medication. He often required seclusion and physical restraints to control him.

[94] Mr. Connell would them be given the appropriate medications (primarily antipsychotics and sedatives) and detoxify from cannabis. After being medicated, Mr. Connell’s conduct would significantly improve. Once he stabilized as a result of the medication, he would no longer be certifiable under the Mental Health Act and would be discharged. The discharging doctors would consistently recommend that Mr. Connell abstain entirely from cannabis use and take the appropriate medication. He would often be given an initial supply of the required medicines.

[95] After being discharged, at some point Mr. Connell would stop taking his medication and start to use cannabis (or other drugs) again, causing a relapse into psychosis and leading to further hospital admissions.

Adult Psychiatric and Treatment History 2012-2020

[96] As noted above, Mr. Connell’s interactions with the criminal justice system began in 2012. While in custody and while under community supervision, Mr. Connell was admitted regularly to forensic psychiatric units.

• September 2012 to May 2013

[97] In September 2012, Mr. Connell was referred to Scarborough Centenary. The attending psychiatrist, Dr. Okyere, noted that while Mr. Connell was coherent, he had poor insight into his illness. Mr. Connell reported that he was using cannabis in varying amounts.

[98] Mr. Connell was then admitted or referred to hospitals at least four more times between September 2012 and May 2013. In March 2013, Mr. Connell was admitted to Humber River on a Form 1, after his cousin J.A. called the police when she found Mr. Connell in her home. At that time, his urine tested positive for cannabis and benzodiazepines. The attending doctor believed that Mr. Connell was not taking his medication (based on prescription records and Mr. Connell’s inability to advise what medications he was taking). This would seem to be confirmed by J.A., who explained that she called the police to get help for Mr. Connell because he was presenting with significant mental health issues.

• April 2013 to June 2015

[99] Mr. Connell was in custody from April 2013 to June 2015 in relation to the offences of sexual assault and use of an imitation firearm noted above. In February 2015, he was transferred to St. Lawrence Valley Correctional and Treatment Centre. At the time, he was psychotic and refusing treatment.

[100] When Mr. Connell continued to refuse his medication, he was deemed incapable with respect to treatment. His mother was appointed as a substitute decision-maker (“SDM”). Mr. Connell then unsuccessfully challenged that decision. Mr. Connell was then treated with antipsychotic medication pursuant to the instructions of his SDM and his behaviour improved.

[101] Mr. Connell was released on June 28, 2015, when his sentence ended. At the same time, the SDM order ended, and Mr. Connell was once more able to make his own decisions regarding his medical treatment. Upon discharge, Mr. Connell declined the recommended injectable medication because of side effects, and he was instead given a prescription for oral antipsychotics.

• June 2015 to July 2016

[102] The approximately one-year period between his release from custody in June 2015 and the predicate offences in July 2016, appears to have been the most positive for Mr. Connell while out in the community.

[103] After his release in June 2015, Mr. Connell began to work with Central Toronto Youth Services (“CTYS”). Earlier attempts by this organization to work with Mr. Connell in 2012-2013 had been terminated because of his aggressive behaviour and failure to engage. However, this time he began working with a provider named Debbie Lynch, with whom he had a positive rapport.

[104] Records from CTYS reveal that Mr. Connell was generally complying with his medication requirements. While he was inconsistent in keeping appointments, he was pleasant and cooperative when he met with providers. He expressed an interest in pursuing further education and applying for social assistance. Mr. Connell seemed to be doing well and stayed out of trouble.

[105] Unfortunately, once again, his mental health began to deteriorate. In March 2016, workers with CTYS began to note that Mr. Connell “seemed off”. He appeared to be symptomatic, was “dishevelled” and started demanding to have a different doctor who would give him benzodiazepines.

[106] Mr. Connell told Dr. Pallandi that around this time he was homeless. He tried crystal methamphetamine for the first time, and quickly began to abuse it. He was not taking his anti-psychotic medication regularly.

[107] Just a few months after CTYS began to note that Mr. Connell was not doing well, he committed the predicate offences.

• August 2016 to January 2019

[108] Mr. Connell went into custody on the predicate and other offences on August 1, 2016. Concerns were raised about Mr. Connell’s mental health from the outset. In September, he began to present as psychotic, and was referred to the CAMH Forensic Early Intervention Services program at the Toronto South Detention Center (“Toronto South”).

[109] In November 2016, he was found unfit to stand trial and sent to Ontario Shores for Mental Health Sciences (“Ontario Shores”) where he remained until January 2017 pursuant to a 60-day treatment order.

[110] Once Mr. Connell stabilized, he was returned to the Toronto South. He continued to work with the CTYS, until October 2017 when he turned 25, and thus “aged out” of the program. While he was no longer able to access their services, Mr. Connell continued to communicate with his former worker, Ms. Lynch. He appeared to be compliant with his medication. Although he did incur several misconducts, he seemed stable and completed some schooling.

[111] Mr. Connell was then admitted again to Ontario Shores in November 2017 to determine whether the defence of not criminally responsible on account of mental disorder (“NCR”) within the meaning of s. 16 of the Criminal Code was available to him with respect to the predicate offences and his offences in the weeks following.

[112] In February 2018, it was determined that Mr. Connell did not have the requisite mental state for an NCR defence. After that, Mr. Connell was returned to the Toronto South.

[113] In January 2019, Mr. Connell began to refuse to take all antipsychotic medications at the jail.

• February 2019 to October 2020

[114] In February 2019 I convicted Mr. Connell of the predicate offences, and the prosecution gave notice of its intention to seek an assessment pursuant to s. 752.1 of the Criminal Code.

[115] Mr. Connell’s matter returned to court several times in the months following to address the application for an assessment. The application was delayed, however, as Mr. Connell became increasingly unwell because he refused to take his medication. Because Mr. Connell fired his lawyer, I appointed an amicus curia to assist him. However, they were unable to obtain meaningful instructions from Mr. Connell.

[116] By August 2019, correctional officers reported that Mr. Connell’s behaviour was erratic and deteriorating. He was transferred to increasingly secure units because of his escalating violent and threatening conduct. He continued to refuse all medication.

[117] Between September 2019 and February 2020, concerns were raised several times regarding Mr. Connell’s fitness. In February, Mr. Connell was sent for another fitness assessment.

[118] While Mr. Connell was found fit to stand trial, the author of the report noted that he appeared to be “decompensating secondary to medication non-adherence.”

[119] Between March and July 2020, urgent concerns were raised by the jail about Mr. Connell’s deteriorating mental health. He was not able to attend court as he was violent and aggressive. On June 12, 2020, he was once again subjected to a Form 1 under the Mental Health Act.

• August 2020 to January 2021

[120] In August 2020 Mr. Connell allegedly attempted to assault a staff member. He was charged criminally and then sent for another fitness assessment. Between August 2020 and October 2020, Mr. Connell was at Waypoint Centre for Mental Health Care (“Waypoint”), first for the fitness assessment, and then, after he was found unfit, pursuant to a 60-day treatment order.

[121] During the fitness assessment and much of the 60-day treatment order period, Mr. Connell remained actively psychotic. Dr. Van Impe, the attending psychiatrist, wrote that Mr. Connell “demonstrated a degree of irritability and anger that I seldom see, even in this secure forensic environment.” He was “frequently observed responding to unseen, unheard and internally generated stimuli and was incredibly agitated and easily angered.”

[122] As had happened during previous admissions to the hospital, after receiving involuntary treatment at Waypoint, Mr. Connell began to stabilize. Dr. Van Impe reported that it took approximately four doses of injectable anti-psychotic medication between August and October 2020 to see improvement.

[123] By October 15, 2020, Dr. Van Impe observed that the improvement in Mr. Connell’s mental status was “quite remarkable”. He was then determined to be fit to stand trial, at which point, his counsel actively sought out a bed in a forensic psychiatric facility for Mr. Connell.

[124] On January 6, 2021, after learning that a bed was going to be available imminently, I signed a Warrant of Committal pursuant to s. 672.29 of the Criminal Code, commonly referred to as a “Keep Fit Order”. This section provides that where an accused who was unfit, has been rendered fit, “the court may order the accused be detained in a hospital until the completion of the trial, if the court has reasonable grounds to believe that the accused would become unfit to stand trial if released.”

• January 25,2021 to Present

[125] On January 25, 2021, after a bed became available, Mr. Connell was admitted to the Forensic Assessment Unit (“FAU”) at Ontario Shores pursuant to the Keep Fit Order. He remains there to this day.

[126] Dr. Andrew Morgan, a staff forensic psychiatrist at Ontario Shores provided an update on November 21, 2021. He noted that Mr. Connell was cooperative with the admission process. He was taking the antipsychotic aripiprazole orally while in custody.

[127] In June 2021, Mr. Connell requested that his medication be changed from the oral version to the long-acting injectable version. As a result, Mr. Connell started taking injections every four weeks, which he appears to tolerate well. Dr. Morgan noted that since Mr. Connell has been medicated properly, he has not engaged in any violent or aggressive incidents. Mr. Connell was reported to be typically calm and cooperative with staff and other patients.

[128] Mr. Connell has continued to do well at Ontario Shores. He is voluntarily taking his recommended medication, which has greatly assisted his mental health, without intolerable side effects. Mr. Connell reported that he likes the way that people react to him when he is properly medicated. He sees the improvement in himself when he takes his medicine.

[129] As I will set out in more detail in my analysis below, while being properly medication at Ontario Shores, Mr. Connell obtained his high school diploma and has been taking courses through Centennial College. He has a girlfriend who knows of his significant issues and is prepared to assist in ensuring that he complies with his required medical regime, in particular his need to comply with the recommendations made by Dr. Pallandi. He has reconnected with family members in the community. He has reacted appropriately to conflict. There is no doubt that Mr. Connell has made great strides at Ontario Shores.

[130] As Dr. Pallandi noted, the reality is that Mr. Connell has spent approximately two years in a secure forensic psychiatric setting. He testified that if Mr. Connell were under the supervision of the Ontario Review Board (“ORB”), given how well he is doing, he would be a good candidate to be moved to a minimum-security facility. He explained that individuals under a review order would remain under the supervision of the ORB until it was determined that they do not pose a significant risk to the safety of the public. Dr. Pallandi testified if Mr. Connell continued with his positive trajectory, it would be unlikely that he would be remain under supervision of the ORB for a very long time.

[131] I had the opportunity to see Mr. Connell when he was deeply ill, and to contrast what I saw with how he presents now. The difference is striking. Mr. Connell is polite, respectful, and seems to be fully engaged in his hearing.

c. Evidence of Dr. Pallandi

[132] Dr. Pallandi met with Mr. Connell three times, for a total of eight hours and prepared an assessment report pursuant to s. 752.1 of the Criminal Code. Dr. Pallandi testified at the hearing and was qualified as an expert in forensic psychiatry, risk assessment and risk management.

[133] Dr. Pallandi diagnosed Mr. Connell with Schizophrenia, Antisocial Personality Disorder, and Substance-Use Disorder. He testified that each disorder impacts on the other. As he explained, Mr. Connell’s substance use has negatively impacted the trajectory of his severe mental illness and may well have been influential in his past criminal conduct.

[134] Dr. Pallandi noted that while Mr. Connell’s behaviour, attitudes, and demeanour all improve when he is properly medicated, his antisocial behaviour is not entirely determined by his mental illness. That said, Dr. Pallandi emphasized that when an individual is ill and untreated, they might seem to be much more antisocial than they otherwise might be.

[135] Dr. Pallandi observed that Mr. Connell’s insight into his mental disorder is underdeveloped, which impacts directly on his compliance with treatment, most notably his need for medication. He also has minimal insight into the exacerbating impact that substance use, particularly cannabis use, has on his mental health. Of concern, he told Dr. Pallandi that he intended to continue to use cannabis.

[136] Dr. Pallandi used several actuarial tools to assess the risk posed by Mr. Connell. One such tool was the Psychopathy Checklist Revised (“PCL-R”), which measures the extent to which an individual resembles the prototypical psychopath. Mr. Connell scored 17 out of 40, which falls far short of a diagnosis of a psychopath. The other dangerous offender cases submitted by counsel generally involved offenders with substantially higher scores on the PCL-R.[^1]

[137] Dr. Pallandi also assessed Mr. Connell using the Violence Risk Appraisal Guide, which is an actuarial instrument for predicting violence among male offenders. Mr. Connell’s score of 14 placed him in the 83rd percentile compared to the developmental sample of male offenders. Of those in the sample group who received a similar score, 55% and 64% percent reoffended within seven and 10 years. Mr. Connell’s score places him in the high-risk category.

[138] Dr. Pallandi also relied on the Sexual Offence Risk Appraisal Guide, an actuarial instrument for predicting violence among male sex offenders. Mr. Connell score of 24 placed him in the 92nd percentile compared to the developmental sample of male offenders. Similar scoring individuals reoffended violently or sexually at a rate of 75% and 89% within seven and 10 years of opportunity in the community. Mr. Connell’s score places him in the high-risk category.

[139] Dr. Pallandi also assessed Mr. Connell using the Static-99R, which measures the risk of sexual offending. Mr. Connell received a score of 7. Individuals in the reference sample who scored similarly reoffended violently or sexually at a rate of 25% and 33% over five and 10 years of opportunity in the community.

[140] Dr. Pallandi also considered clinical and dynamic factors when assessing Mr. Connell’s risk. In particular, he used the Historical Clinical Risk Management-20, a structured professional judgment tool used to assess risk for interpersonal violence based on static and dynamic factors shown in the literature to be empirically related to violence. Its purpose is to identify salient risk factors and inform risk management interventions. Mr. Connell scored a 29, which is a substantially elevated score.

[141] Considering the actuarial assessments, along with clinical and dynamic factors, Dr. Pallandi concluded that Mr. Connell poses a high risk of sexual and/or violent recidivism.

[142] Dr. Pallandi identified several “dynamic” factors that might be seen a modifiable and assist in lowering Mr. Connell’s level of risk. For example, Dr. Pallandi noted that Mr. Connell’s education has been truncated, but Mr. Connell told him he wished to work on his education. Of note, since Mr. Connell met with Dr. Pallandi, he has followed through with his stated intention and upgraded his education while at Ontario Shores. Dr. Pallandi testified that was a positive factor.

[143] Dr. Pallandi also noted that Mr. Connell’s vocational skills are limited, but that is an area that he can work on. Mr. Connell is bilingual and Dr. Pallandi agreed that this was a positive factor that would be an asset for Mr. Connell’s employment potential.

[144] Dr. Pallandi observed that Mr. Connell’s current insight into the negative impact cannabis use has on his mental health and its potential to lead him back to criminality is poor. However, Mr. Connell has never had any formal substance abuse counselling or treatment. Dr. Pallandi said that Mr. Connell would benefit from such treatment. The treatment could include group therapy or one-on-one cognitive behavioural therapy. Mr. Connell also needs sex offender treatment. Again, this could be done in group or individually. Mr. Connell’s behaviour at Ontario Shores when properly medicated suggests that he would benefit from treatment.

[145] Dr. Pallandi, testified that with the appropriate conditions put in place, there was “a clinically defensible air of reality to expect to manage risk without undue risk to public safety.” Given Mr. Connell’s mental health issues, Dr. Pallandi emphasised that forced reporting, multi-disciplinary management, urine screening and clear recourse in the event of non-compliance would be essential for managing risk. Dr. Pallandi recommended that the following conditions be put in place to manage any risk posed by Mr. Connell:

• Upon his release, Mr. Connell should be required to reside in a structured, supervised housing setting rather than with a family member or friend.

• Mr. Connell should receive ongoing psychiatric care, with “specific consideration being given to a forensic assertive Community Treatment Order.”

• Mr. Connell must comply fully, without interruption, and in perpetuity, with his antipsychotic treatment.

• Mr. Connell should engage in substance abuse treatment.

• Mr. Connell should engage in sexual offender treatment.

• Mr. Connell should abstain from cannabis and all non-prescribed controlled substances.

• Mr. Connell should be required to submit to random urinalysis.

• Mr. Connell should engage in verified educational and/or vocational programming.

• Mr. Connell should be required to sign reciprocal, unrestricted consents for the exchange of information between those involved in his care and supervision.

[146] Dr. Pallandi testified that his suggested conditions could be implemented by CSC. Trevor Chapman, a Parole Supervisor with CSC, testified and confirmed that CSC had the ability to enforce the suggested conditions.

[147] I will have more to say about Mr. Chapman’s evidence in my analysis.

D. Analysis

Issue One: Has the Crown established that Mr. Connell committed serious personal injury offences?

[148] The defence concedes that the offences committed by Mr. Connell are serious personal injury offences. I agree with this reasonable concession.

[149] Section 752(a)(i) of the Criminal Code defines a “serious personal injury offence” as an indictable offence that involves the “use or attempted use of violence against another person” and is punishable by ten years’ imprisonment or more. There is no dispute that the robbery offence committed by Mr. Connell is a serious personal injury offence pursuant to s. 752 of the Criminal Code: it is an indictable offence, punishable by more than 10 years, which involves the “use or attempted use of violence” against another person. Similarly, Mr. Connell’s offence of sexually assaulting S. M. at knife point and physically assaulting her also clearly meets this definition.

[150] Moreover, pursuant to s. 752(b) of the Criminal Code, sexual assault with a weapon is specifically enumerated as a “serious personal injury offence.”

[151] Mr. Connell clearly committed serious personal injury offences. This required precondition to a finding of dangerousness under s. 753(1) of the Criminal Code has been established.

Issue Two: Has the Crown established that Mr. Connell has engaged in a pattern of repetitive behaviour showing a failure to restrain his behaviour, a pattern of persistent aggressive behaviour showing a substantial indifference to the reasonably foreseeable consequences to other person of his behaviour, or that he has shown a failure to control his sexual impulses?

[152] The defence concedes that the first component of s. 753(1)(a)(i) has been met. Mr. Connell has engaged in a pattern of repetitive behaviour, of which the predicate sexual offences form a part, showing a failure to restrain his behaviour.

[153] Similarly, there is no quarrel that the first component of s. 753(1)(a)(ii) has also been met. Mr. Connell has engaged in a persistent pattern of aggressive behaviour, of which the predicate offences form a part, showing a substantial degree of indifference to the reasonably foreseeable consequences to other people of his behaviour.

[154] The defence also does not dispute that the first aspect of s. 753(1)(b) has been established and that by his conduct in the predicate offences, and in other sexual offending, Mr. Connell has failed to control his sexual impulses.

[155] In my view, the evidence clearly supports the concessions made by the defence. Mr. Connell committed two sexual assaults. In the first, he used an imitation firearm and forced J.C. to a secluded area of a park. In his second sexual assault, he held a knife to S.M.’s neck. Then, within two weeks of his attack on S.M., Mr. Connell held a knife to C.M.’s neck and attempted to shove a sock in her mouth as he tried to drag her into her home. He has also engaged in other violent or aggressive behaviour, notably against strangers. He has continued to commit crimes while bound by probation and SOIRA orders. Mr. Connell’s attacks had a profoundly negative impact on his victims.

[156] Based on all the evidence, I agree that the required patterns of violent, persistent aggressive and sexual misconduct by Mr. Connell have been established. Moreover, I am satisfied that Mr. Connell’s pattern of offending demonstrates a substantial degree of indifference on his part with respect to the reasonably foreseeable consequences to other persons of his behaviour.

[157] I turn now to the issue in dispute, which, is whether Mr. Connell poses such a future risk that a dangerous offender designation is warranted.

Issue Three: Has the Crown established beyond a reasonable doubt that there is a likelihood of Mr. Connell’s violent and sexual recidivism or that his behaviour is intractable?

[158] It is helpful to approach the analysis of whether Mr. Connell poses the requisite future risk to ground a finding of dangerousness by considering the following question: Has the Crown established beyond a reasonable doubt that there is a likelihood of Mr. Connell’s violent and sexual recidivism and that his behaviour is intractable?

[159] Mr. Connell has been properly medicated for over two years. The change in Mr. Connell since he stabilized in October 2020, is, as Dr. Impe observed, “remarkable”. Importantly, the medication Mr. Connell is taking does not cause disabling side effects. Some medications in the past caused Mr. Connell to suffer from significant side effects, which played a role in his medical non-compliance. The fact that his current medication is both efficacious and tolerable will assist in ensuring that Mr. Connell continues to comply with his recommended medication.

[160] Of note, Mr. Connell has been taking his medication voluntarily since October 2020. He is at Ontario Shores on a Keep Fit Order, pursuant to s. 672.29 of the Criminal Code. While the order provides authority for Ontario Shores to detain Mr. Connell, it does not give the hospital authority to treat Mr. Connell against his wishes. Mr. Connell, however, has been fully compliant with his treatment and medication regime.

[161] Moreover, at his request, Mr. Connell moved from an oral version of his medication to a long-lasting injectable. Dr. Pallandi described this move as being of “substantial value”. The move to injectables has three benefits. First, injectable long-lasting medication helps to ensure that Mr. Connell maintains his continuous medical regime. Second, using injectables makes it easier to monitor Mr. Connell’s compliance with his medication. Third, and of import, the request shows Mr. Connell’s growing insight into his need to take his medication consistently.

[162] Mr. Connell has also signed a Power of Attorney for Personal Care (referred to in the hearing as a “Ulysses Contract”), appointing girlfriend, K.C.-D. as the “Attorney”, and giving her extraordinary powers and control over his personal care. As I will detail later in these reasons, I have some concerns about K.C.-D.’s ability to take on this role. That said, in my view, Mr. Connell’s agreement to the terms and conditions of the Ulysses Contract shows his growing insight into his mental illness and his need for life-long medication.

[163] The contract states that it is Mr. Connell’s “wish” for the purposes of the Health Care Consent Act, 1996, S.O. 1996, c.2, and his “wish and instruction” for the purposes of the Substitute Decisions Act, 1992, S.O. 1992, c. 30, that his Attorney ‘shall take all steps necessary, and give all consents required, to [provide him] with expeditious hospitalizations and treatment (including, but not limited to, medications for the treatment of schizophrenia and psychosis)” if it is in Mr. Connell’s “best interest.”

[164] When considering his best interest, the contract specifies Mr. Connell’s understanding that he requires long-acting antipsychotic medication in perpetuity. It sets out his desire and need to follow the management strategies recommended by Dr. Pallandi. It also acknowledges his need to abstain from cannabis and all other substances. The contract authorizes K.C.-D. or other persons under her direction to use such force as necessary to take Mr. Connell to a psychiatric facility or other place to provide treatment for his psychiatric disorder. This contract recognizes that ensuring that Mr. Connell continues taking his medication consistently is a key factor in mitigating any risk he poses.

[165] Mr. Connell’s behaviour over the last two years while being properly medicated also provides support for the position that his pattern of violent offending can be abated. The context is important. While at Ontario Shores, Mr. Connell has been detained in the FAU. Individuals undergoing an NCR assessment, a fitness assessment or treatment orders are housed in the FAU. Dr. Pallandi explained that the “most acutely disturbed” individuals come into that unit, and it is “very common to see behavioural disturbances.” The FAU has a high staff to patient ratio, which allows for a great amount of direct observation of patients. Staff prepare daily reports and document any improper behaviour, even noting minor things, such as a dirty look.

[166] Despite being in this challenging environment under close staff scrutiny for about a year and half, there have been few reports of Mr. Connell engaging in misconduct. Indeed, to the contrary, the evidence suggests he has done extremely well. Dr. Morgan observed Mr. Connell to be consistently calm and cooperative. Mr. Connell maintained a calm demeanour, even when confronted with personal conflict. For example, when another patient stole money from his room, Mr. Connell responded with a “reasonable and calm approach” and even potentially showed some empathy towards the man. Mr. Connell showed “good behavioural control” rather than acting impulsively and solved the issue in a “pro-social and non-problematic” manner. In another incident, issues arose when Mr. Connell’s girlfriend sent him photographs that were approved of initially but were later deemed inappropriate by a different staff member. The photos had to be returned, and then a further issue arose over one photograph that was potentially missing. Throughout, Mr. Connell remained calm and pleasant as he dealt with staff regarding the photographs. Dr. Pallandi noted that Mr. Connell’s approach to this issue showed that he could resolve contentious issues and that he demonstrated “reasonable resolution skills.”

[167] Dr. Pallandi noted that Mr. Connell has also shown that when he is properly medicated, he can develop good relationships with his treatment providers or workers. For example, he worked well with Ms. Lynch from CTYS. Dr. Simpson, whom Dr. Pallandi described as a “highly experienced forensic psychiatrist”, assisted Mr. Connell when he was in the Forensic Early Intervention Service at Toronto South. Dr. Simpson described Mr. Connell as generally quite amenable to working with his treatment providers. During his year and a half at Ontario Shores, Mr. Connell has participated in the available programs. He was reported by workers to be an active and cooperative participant in all programming, including group work. Dr. Pallandi testified that Mr. Connell’s willingness to cooperate with treatment providers and engage in available programing supported that, in the future, he could benefit from treatment and programming.

[168] Mr. Connell’s ability to work with treatment providers is particularly important given his need for substance abuse treatment. Mr. Connell has long-standing issues with cannabis use. Marijuana has contributed to Mr. Connell’s mental health crisis in two ways. First, the substance has led to psychotic episodes several times in the past. Second, when using marijuana regularly, he is more likely to miss taking his medication. Mr. Connell’s use of crystal methamphetamine played a role in his offending in 2016. Unfortunately, Mr. Connell has limited insight into the negative impact cannabis has on him. Indeed, he told Dr. Pallandi that he intended to continue to use cannabis. That said, he is open to receiving treatment. And, despite his long-standing cannabis/substance use issues, Mr. Connell has never received substance abuse treatment.

[169] Similarly, Mr. Connell has never engaged in sexual offender treatment. Dr. Pallandi testified that Mr. Connell has the cognitive ability to participate fully in programming. Mr. Connell has also expressed to Dr. Pallandi that he is agreeable to attending substance abuse treatment and sexual offender treatment. Given Mr. Connell’s receptiveness to his treatment providers and his willingness to engage in programming, counselling for his cannabis/substance use disorder and sexual offender treatment would be highly beneficial.

[170] Dr. Pallandi also opined that Mr. Connell’s risk could be minimized through upgrading his truncated education. And while properly medicated, Mr. Connell has voluntarily worked with Amadeusz, an organization that supports incarcerated individuals between the ages of 18 and 35, to improve his education. Mr. Connell completed his high school diploma and is currently registered in the Business Program- International Certificate at Centennial College. He completed the Principles of Market course and achieved a B grade. He is currently registered in an Organizational Behaviour course.

[171] Amadeusz staff reported Mr. Connell to be “a dedicated, capable and engaged participant” who took initiative in his learning and maintained a “positive attitude” with staff. Dr. Pallandi agreed that Mr. Connell’s effort and success at furthering his education are clear and concrete factors supporting Mr. Connell’s future positive trajectory.

[172] Looking at the totality of the evidence, I am not satisfied beyond a reasonable doubt that Mr. Connell must be designated dangerous. The evidence does not leave me sure that there is a likelihood of Mr. Connell’s harmful violent and or sexual recidivism or that his behaviour is intractable. He certainly poses a risk. Indeed, he poses a substantial risk. But given the positive trajectory Mr. Connell has been on and his demonstrable progress, I am not persuaded that he poses a tremendous risk of harmful recidivism.

[173] As a result, the application to have Mr. Connell declared a dangerous offender is dismissed.

Issue Four: Should Mr. Connell be designated a long-term offender pursuant to s. 753.1(1) of the Criminal Code?

[174] Pursuant to s. 753(5)(a) of the Criminal Code, where a court denies a dangerous offender application, it may treat the application as a long-term offender application.

[175] Given the evidence adduced, there is no dispute between the parties that Mr. Connell should be designated as a long-term offender. I will briefly address why I agree that this designation must be made.

[176] Pursuant to s. 753.1(1), a court may impose a long-term offender designation where the Crown establishes three elements beyond a reasonable doubt:

a) it would be appropriate to impose a sentence of two years or more for the predicate offence;

b) there is a substantial risk that the offender will reoffend; and

c) there is a reasonable possibility of eventual control of the risk in the community.

[177] Section 753.1(2)(a) of the Criminal Code provides that the court shall be satisfied that there is a substantial risk that the offender will reoffend if the offender has been convicted of one of several enumerated sexual offences, including sexual assault with a weapon, and the offender has shown one of two patterns of conduct as set out in either ss. 753.1(2)(b)(i) or 753.1(2)(b)(ii).

[178] Section 753.1(2)(b) provides that the court shall be satisfied that there is a substantial risk of reoffence if the offender:

i) has shown a pattern of repetitive behaviour, of which the offence for which [they] has been convicted forms a part, that shows a likelihood of the offender’s causing death or injury to other persons or inflicting severe psychological damage on other persons, or

ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain, or other evil to other persons in the future through similar offences. (emphasis added)

[179] Section 753.1(2)(b)(i) does not direct the court to take a prospective approach in the same way that s. 753.1(2)(b)(ii) does. However, it seems clear that the court must consider the offender’s future behaviour.

[180] I say that because, a long-term supervision order is an exceptional sentence reserved for “individuals who pose an ongoing threat to the public and accordingly merit enhanced sentences on preventive grounds”: Steele, at para. 1 (emphasis added); see also R. v. L.M., 2008 SCC 31, at para. 39. If the assessment of substantial risk focused only on past behaviour, the net would be cast so broadly that the provision would be constitutionally suspect.

[181] When considering whether the requisite level of risk has been established beyond a reasonable doubt, the sentencing judge must scrutinize the record to ensure that any evidence said to support a long-term offender designation is clear, convincing, and cogent. Thus, the evidence should have such a high degree of clarity, persuasiveness, and strength that the court can be sure that the offender poses a substantial risk.

[182] There is no doubt that the evidence establishes that Mr. Connell poses a substantial risk. His offending pattern and history of medical non-compliance is extremely troubling. He has anti-social personality traits. He has a cannabis use disorder and has limited insight into his need for complete abstinence.

[183] However, and significantly, the evidence establishes beyond a reasonable doubt that that there is a reasonable possibility of eventual control of Mr. Connell’s risk in the community.

[184] Mr. Connell has been at Ontario Shores, a medium security forensic psychiatric facility since January 2021. This is the longest time that Mr. Connell has been a patient in a psychiatric facility. Before that, he was at Waypoint, a maximum security forensic psychiatric facility. He has been properly medicated since July 3, 2020. He has been taking his medication voluntarily since October 2020. This is the longest uninterrupted time where Mr. Connell has complied with his required medication.

[185] As I set out above, Mr. Connell has done extremely well while properly medicated. I will not repeat the evidence I referred to in my analysis in the dangerous offender application, but I rely on it here.

[186] Offenders under long-term supervision orders are closely monitored, have frequent contact with parole officers and are subject to random urinalysis and breathalyzer tests. Terms of the order are strictly enforced; breaches are dealt with swiftly. Even without a breach, if there were factors to suggest that Mr. Connell’s risk had become elevated, his long-term supervision order could be suspended.

[187] As Dr. Pallandi noted, Mr. Connell seems to do very well in a structured setting. And, of note, upon his release from custody Mr. Connell will be in highly controlled environment. Dr. Pallandi outlined several conditions that would need to be put into place to effectively manage any risk posed by Mr. Connell. These conditions can be implemented by CSC.

[188] Dr. Pallandi stressed that upon release, Mr. Connell should be housed in structured, supervised housing. Mr. Chapman testified that CSC supervises long-term offenders. In his experience, long-term offenders are always required to live in supervised housing when they are first released from custody. The residential requirement is reassessed by the Parole Board every year.

[189] CSC has two options for housing offenders upon release, either a Community Correction Center (“CCC”), or a Community Residential Facility (“CFI”). In either case, the residential facilities are staffed 24/7 and have extensive rules. The Parole Board can also set highly restrictive conditions, for example, that an offender may only leave the residence in the company of a staff member. Privileges are then granted gradually when the offender demonstrates that they are warranted.

[190] For someone with Mr. Connell’s constellation of issues, a CCC would be ideal. Dr. Pallandi testified that CCCs have in-house psychiatrists, who would be familiar with working with individuals with Mr. Connell’s mental health issues. Thus, Mr. Connell will have direct access to psychiatric assistance upon his release. This will greatly assist in managing his risk. Further, his parole officer would be on-site.

[191] Moreover, as Dr. Pallandi noted, a key to managing Mr. Connell’s risk is to ensure that he takes the appropriate medication. The medication he is on currently has had good effect and he has tolerated it well. While it is still nascent, Mr. Connell has shown growing insight into his need for his medication in perpetuity. He has expressed that he sees that people react to him better when he is medicated; he likes being responded to in such a manner.

[192] It seems clear that a condition of Mr. Connell’s long-term offender order will be that he comply fully with the recommendations of his psychiatrist and that he take all prescribed medication. The staff at CSC housing monitor any prescribed medication. Given that Mr. Connell has switched to injectables, it will be easier to ensure his continuing and complete compliance with the required medication.

[193] In my experience observing Mr. Connell over the years, it is obvious when he is beginning to decompensate. Given that there would be ongoing supervision of his mental health and medication compliance, any concerns that he is becoming unwell again can be addressed quickly.

[194] It is important to keep in mind that a breach of a long-term supervision order is a criminal offence under s. 753.3(1) of the Criminal Code. The failure to abide by any condition in a long-term supervision order, including one requiring treatment, may result in suspension and apprehension pursuant to ss. 135.1(a) and 135.1(b) of the Corrections and Conditional Release Act, R.S.C. 1985, c. C-20. Section 753.3(1)(a) of the Criminal Code makes it an indictable offence to breach a long-term supervision order, with a maximum sentence of 10-years' imprisonment.

[195] While the Parole Board cannot physically force an individual to take medication, if the individual does not take the medication when required to do so under the terms of a long-term-supervision order, that would amount to a breach of conditions under s. 753.3(1) unless the long-term offender had a reasonable excuse for refusing to take the prescribed medication: R. v. Ramgadoo, 2012 ONCA 921at paras. 51-53; see also R. v. R.B., 2011 ONCA 328, at paras. 12-13. As Linden J.A. stated in Deacon v. Canada (Attorney General), 2006 FCA 265, at para. 41, if an individual is under a long-term supervision order with a requirement that they take medication, the individual “may choose to refuse, but he thereby chooses also to face the consequences flowing from that decision.”

[196] If Mr. Connell’s long-term supervision order contains a provision that he must continue his required medication, as it should, and he stopped, he would be subject to imprisonment for up to 10 years.

[197] Similarly, if Mr. Connell’s long-term supervision order contains a provision that he must abstain from cannabis, as it should, and he used the substance, he would once again be subject to imprisonment for up to 10 years. CSC also has the authority to, and will, order Mr. Connell to submit to random urinalysis testing to ensure that he does not take cannabis or non-prescribed medication.

[198] Mr. Connell’s long-term supervision order should also require him to engage in programming for substance abuse and sexual offending. Mr. Chapman testified that CCCs offer these programs on site. CCCs offers the same intensive programs that are available to offenders serving a federal sentence. Offenders housed in CFIs can also access this programming. Thus, upon his release from custody, Mr. Connell will have access to intensive programming and treatment geared to lowering his risk of reoffending. If Mr. Connell refused to participate in the programing required by his long-term supervision order, that would be an offence.

[199] If after some time it is deemed appropriate to have Mr. Connell reside in the community, he will continue to be bound by strict conditions relating to residence, curfews, abstention from cannabis and other substances, treatment and programming, compliance with his required medical regime and consistent and continuous psychiatric care.

[200] In addition to the supervision of CSC, there are other supports available to Mr. Connell in the community to ensure that he maintains a pro-social path. As noted above, Mr. Connell has entered in a Ulysses Contract. This gives extraordinary powers to his girlfriend to ensure that he continues to comply with the recommendations made by Dr. Pallandi, including taking medication and abstaining from substances.

[201] As I noted above, I have some concerns about K.C.-D. acting as the Attorney. She and Mr. Connell began their relationship while he was at Ontario Shores. She has never had the chance to interact with Mr. Connell outside of the confines of the psychiatric facility. She does not have a long history with him. It is certainly possible that the relationship will not last and that she will decide that she no longer wishes to act as his Attorney. On the other hand, she sat through every day of the dangerous offender hearing. She has extensive knowledge of his criminal history and psychiatric history. She is not going into this with blinders on.

[202] But even if K.C.-D. decided that she no longer wishes to act in this role, Mr. Connell has appointed his aunt N.F-G., to act as a Substitute Attorney. N.F-G. did not testify, but she wrote a detailed letter expressing her support for her nephew and her willingness to act as a Substitute Attorney. She has had a close relationship with Mr. Connell historically, and she has been in contact with Mr. Connell since his mental health has improved in custody. N.F-G. is a nurse. She wants to assist Mr. Connell in his stated goal to have a “stable life.”

[203] I also note that N.F.-G. is not the only family member who is willing to provide support for Mr. Connell. Several family members wrote letters on his behalf. As noted above, Mr. Connell’s cousin J.A. wrote a letter on his behalf. She has seen Mr. Connell when he is struggling with his mental health issues. She has been speaking “a lot” with Mr. Connell over the past year and said that he is doing well. She will continue to have contact with him if he is released. She wrote, “I will offer whatever emotion support I can for him to stay treated.”

[204] Mr. Connell’s uncle. H.F. also wrote a letter on his behalf. H.F. noted that he has known Mr. Connell since he was a young child. He and his wife will “provide whatever emotional support” they can. He noted that Mr. Connell has been calling from the hospital and sounded positive. He wrote, “I hope that Wayne will be able to return to the community and do what it takes to stay well and to succeed. I have told him that he has to focus on his recovery.” Mr. Connell’s sister, P.I., also wrote a letter showing support for her brother. P.I. also suffers from mental health issues and understands how essential it is for Mr. Connell to maintain his medication regime. This connection to and support from his family will assist Mr. Connell to maintain a pro-social path.

[205] Mr. Connell has also shown his commitment to his ongoing psychiatric care in the community by his openness to submitting to a Community Treatment Order (“CTO”) as recommended by Dr. Pallandi. Pursuant to s. 33.1(3) of the Mental Health Act, the purpose of a CTO is to provide a person such as Mr. Connell, who suffers from a serious mental disorder, with a comprehensive plan of community-based treatment or care and supervision that is less restrictive than being detained in a psychiatric facility. Section 33.1(4)(i) of the Mental Health Act specifies that a CTO is available if in the previous three years the individual has been a patient in a psychiatric facility on two or more occasion, or for a cumulative period of 30 days or more during that three-year period. Mr. Connell meets this criterion. Thus, upon his release from Ontario Shores, Mr. Connell will be eligible for a CTO. Dr. Pallandi testified that the in-house CSC psychiatrist could work on a obtaining a CTO for Mr. Connell.

[206] Mr. Connell currently poses a substantial risk. But the evidence supports that there is a reasonable possibility of the eventual control of Mr. Connell’s risk to the community. He will be under the supervision of CSC for 10 years after his release from custody. The conditions imposed under his long-term supervision order will be geared to addressing his dynamic risk factors. Mr. Connell will be provided with counselling for substance abuse for the first time. He will have to take sexual offender treatment. He will be required to strictly comply with his required medication regime and follow the directions of his mental health care providers. He is motivated to get well and succeed.

[207] Given the positive trajectory Mr. Connell has already displayed, there is more than just a hope that his risk can eventually be controlled in the community. Rather, there is a rational, articulable, and reasonable basis to conclude that his risk can eventually be controlled.

[208] As a result, I have concluded that it is appropriate to designate Mr. Connell as a long-term offender and impose a 10-year long-term supervision order to follow his custodial sentence.

[209] I turn now to the issue of what custodial sentence is appropriate in the circumstances.

Issue Five: What custodial sentence is appropriate in the circumstances?

[210] As noted in R. v. Lacasse, 2015 SCC 64, at para. 58, the “determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision.”

[211] Section 718 of the Criminal Code provides that the “fundamental purpose of sentencing is to protect society and to contribute ... to respect for the law and the maintenance of a just, peaceful and safe society.” This is to be accomplished through the imposition of just sanctions that have one or more of several objectives enumerated in ss. 718(a) to (f), including denunciation, general and specific deterrence, separation of the offender from society, and rehabilitation.

[212] Section 718.1 sets out the fundamental principle of sentencing, which is that any sentence imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

[213] In cases of sexual assault, there is no question that the paramount sentencing objectives are denunciation and deterrence. Still, the competing objectives and principles must be balanced in a way that respects the principle of proportionality. The sentencing judge retains the discretion to assign significant weight to other factors, such as rehabilitation, in giving effect to the fundamental principle of proportionality: R. v. Friesen, 2020 SCC 9, at para. 104; R. c. Rayo, 2018 QCCA 824, at paras. 103, 107-108.

[214] Since sentencing is highly individualized, the determination of a just and appropriate sentence requires the court to assess the aggravating and mitigating factors related to both the offence and the offender.

[215] In terms of aggravating factors, Mr. Connell’s victim was particularly vulnerable. Sex trade workers deserve to earn a living without fear of violence. Mr. Connell caused S.M. significant psychological harm. He caused her physical harm as well. He has a related record. He also has a record for other offences. He committed the sexual assault while bound by probation and a SOIRA order.

[216] In terms of mitigating factors, Mr. Connell has substantial mental health issues that have played a role in his offending. However, he is now properly medicated and has demonstrated in meaningful ways that he can be pro-social when his mental disorder is controlled through medication. He has shown insight into his mental health issues and a commitment to ongoing psychiatric care in the community. He has also shown insight into the harm that he caused to his victim and expressed remorse, albeit at a late stage. Mr. Connell is open to engaging in programming for substance abuse issues. Similarly, he is receptive to taking sexual offender treatment. He has family support. He has upgraded his education and is taking college courses geared to assist him in finding employment.

[217] At this stage, Mr. Connell has been in custody for 2,207 days. During that time, he served his 3-year-sentence for his attack on C.M. and the theft from A.S. Given parole eligibility, both the Crown and defence agree that 2 years should be credited to that sentence.

[218] That means that Mr. Connell has 1,477 available days of pre-sentence custody credit. That should be calculated at the enhanced rate of 1.5:1 for the equivalent of 2,215 days. The parties agree that Mr. Connell should be given a further credit of 120 days to account for particularly harsh pre-sentence conditions. That means that Mr. Connell has the equivalent of 2,335 days in pre-sentence custody (roughly 6 years and 5 months).

[219] In my view, this sentence is sufficient in the circumstances to address the relevant sentencing principles and objectives. It gives primacy to the sentencing objectives of denunciation and general and specific deterrence, while still recognizing the objective of rehabilitation and the principle of restraint. Mr. Connell has also been separated from society, and upon his release will be subject to a long-term offender order, which addresses the goal of prevention and the purpose of protection of society.

[220] However, it is essential that a proper correctional plan be formulated for Mr. Connell before he is released. If Mr. Connell were to be released today, that plan would not be in place.

[221] The Community Supervision Information Package (“CSIP”) filed at Mr. Connell’s hearing explains that for a long-term offender like Mr. Connell, who will be serving the remnant of his sentence in a provincial institution, an intake parole officer will go into the facility to interview the offender within five days of the sentencing and prepare a Preliminary Assessment Report. Based on information provided by the offender, the intake parole officer then prepares a Post-Sentence Community Assessment.

[222] Next, a comprehensive Offender Intake Assessment (“OIA”) is prepared. The OIA process involves a “systematic collection and analysis of comprehensive information” on the offender’s “criminal and mental health background, social situation and education” and factors relevant to the offender’s risk and needs. The OIA “results in a multi-disciplinary correctional plan outlining treatment and correctional interventions throughout the sentence.” For long-term offenders who have less than four years left in their sentence, the OIA should be prepared within 70 days. For those serving more than four years, the OIA should be prepared within 90 days.

[223] CSC psychiatrists and psychologists are not on-site at provincial institutions, which Mr. Chapman testified could create some logistical issues in preparing the required assessments. However, s. 37 of the CSIP explained that offenders who “already have a court psychiatric or psychological evaluation on file which includes a risk appraisal do not require an intake psychological risk assessment.”

[224] In Mr. Connell’s case, there is an abundance of information available to assist CSC in developing an OIA and a correctional release plan. The material readily available to CSC includes Dr. Pallandi’s report and his recommendations. CSC will also have a transcript of Dr. Pallandi’s testimony at the hearing. They will also have the other transcripts form the hearing, including the transcript of the evidence of Mr. Connell’s girlfriend, K.C.-D. These transcripts have already been prepared and are available digitally. CSC will also have all the exhibits filed at the hearing, including Mr. Connell’s complete psychiatric records. They will also have up-to-date information available from Ontario Shores.

[225] In Mr. Connell’s case, it is already known that he requires the intensive substance abuse and sexual offender programming available through CSC. He has never had this programming. He is receptive to taking counselling and treatment. Dr. Pallandi made clear that Mr. Connell has the cognitive capacity to engage in this programming and that when medicated properly, he works well with treatment providers. What is also beyond dispute, is that it is essential that Mr. Connell be required to take his prescribed medication and follow the treatment plan recommended by the CSC psychiatrist. The conditions and restrictions that are necessary to control Mr. Connell’s risk upon release are set out clearly in the materials that will be provided to CSC in short order.

[226] Considering all the information that will be provided to CSC, it seems that 90 days should be sufficient time for CSC to formulate an appropriate plan for Mr. Connell. As a result, I am going to sentence Mr. Connell to a further 90 days in custody.

E. Conclusion

[227] Mr. Connell should be designated as a long-term offender and subject to a 10-year supervision order following his custodial sentence.

[228] On the count of sexual assault with a weapon, the sentence before taking into consideration any pre-sentence custody is 2,425 days in custody (approximately 6 years and 8 months).

[229] Considering 1,477 days pre-sentence, calculated at the enhanced rate of 1.5:1, and 120 days credit for particularly harsh pre-sentence conditions, Mr. Connell is to be credited with 2,335 days of pre-sentence custody.

[230] Thus, Mr. Connell has a remaining sentence to serve of 90 days. The sentence will be followed by the 10-year long-term supervision order.

[231] On the count of robbery, I sentence Mr. Connell to 6 years, to be followed by the 10-year long-term supervision order, concurrent to the sexual assault with a weapon.

[232] On the count of forcible confinement, I sentence Mr. Connell to 6 years, concurrent to the sexual assault with a weapon.

[233] On the two counts of breach of probation, I sentence Mr. Connell to 1 year on each count, concurrent to the sexual assault with a weapon.

F. Ancillary Orders

DNA Order

[234] Sexual assault with a weapon is a primary designated offence. Pursuant to s. 487.051(1) of the Criminal Code, I order that Mr. Connell provide samples of his bodily substances for forensic DNA analysis.

Weapons Prohibition Order

[235] A weapons prohibition pursuant to s. 109 of the Criminal Code also applies. Mr. Connell is accordingly prohibited from possessing any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition, and explosive substance for of life: s. 109(3). Mr. Connell is further prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life: s. 109(2)(b).

Sex Offender Information Registration Act Order

[236] Pursuant to ss. 490.012(1) and 490.013(2.1) of the Criminal Code, Mr. Connell is required to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10, for life.

Disclosure to Correctional Service of Canada

[237] Pursuant to s. 760 of the Criminal Code, I order that a copy of Dr. Pallandi’s report and a transcript of his testimony and all other transcripts from the hearing be forwarded to CSC for information.

[238] I also direct that all exhibits filed at the sentencing hearing be forwarded to CSC for information.

[239] Finally, I direct that a copy of these reasons be provided to CSC.

Justice Heather McArthur

Released: August 17, 2022

[CITATION](http://intra.judicialsecurity.jus.gov.on.ca/NeutralCitation/): R. v. Connell, 2022 ONSC 4703

COURT FILE NO.: CR-17-30000524-0000

DATE: 20220817

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

WAYNE CONNELL

REASONS ON DANGEROUS OFFENDER APPLICATioN

Justice Heather McArthur

Released: August 17, 2022

[^1]: See for example, R. v. Drake, 2020 ONSC 4085, at para. 43 (score of 33.7); R. v. J.T., 2021 ONSC 366, at paras., 91-94 (score of 27.1); Spilman, see trial level decision, R. v. Spilman ONCJ 373, at paras. 51 and 68 (score of 31); R. v. Little, 2007 ONCA 458, at para. 18 (score of 35); R. v. Neve, [1994] A.J. No. 877 (Q.B.), at paras. 70, 73 (score of 34). Out of the authorities submitted by the parties, only three other cases had scores similar to Mr. Connell. In R. v. Morrison, 2015 ONSC 5652, the offender scored a 15.8 on the PCL-R. In R. v. Williams, 2017 ONCA 161, at paras. 163-166 the offender scored a 19 (see the score in ORB decision, 2016 CarswellOnt (O.R.B.), at para. 18). In R. v. Sipos, 2014 SCC 47, the offender scored a 16 (see the trial-level decision, [1998] O.J. 985 (Gen.Div.)).