Court File and Parties

COURT FILE NO.: CR-19-0000046 DATE: 2023-07-13 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – GREGORY EZE Defendant

Counsel: David Parry, for the Crown Kayvan Vakili, for the Defendant

HEARD: June 15, 2023

Reasons for Decision on Crown Application for DO/LTO Assessment Order

Presser J.

I. Overview

1The Crown seeks an order remanding Mr. Eze for assessment under s 752.1(1) of the Criminal Code. The purpose of the assessment is for use as evidence on an application that the Crown may subsequently make to have Mr. Eze declared a dangerous or long-term offender under s. 753 or s.753.1.

2There are two statutory prerequisites to ordering an assessment under s.752.1. These are:

(i) That Mr. Eze has committed a “serious personal injury offence”; and (ii) That there are reasonable grounds to believe that Mr. Eze might be found to be a dangerous or long-term offender.

3If these two statutory prerequisites are met, the making of an assessment order on the Crown’s application is mandatory.

4The Crown position on this application is that given the predicate offences, Mr. Eze’s criminal antecedents, and the psychiatric and psychological reports that have been filed on this application, all statutory prerequisites to the issuance of an assessment order have been met. The assessment order must issue.

5The defence resists the Crown’s application. The defence submits that the predicate offences do not qualify as serious personal injury offences. The defence goes on to focus its opposition on whether there are reasonable grounds to believe that Mr. Eze might be found to be a dangerous or long-term offender. Counsel for Mr. Eze argues that the evidentiary record falls short of the threshold required for the making of an assessment order and amounts only to a remote possibility that Mr. Eze might be found to be a dangerous or long-term offender. Accordingly, in the defence argument, an assessment order can not issue.

6I have carefully considered all of the materials filed, the written and oral submissions of counsel, and the authorities. For the following reasons, I have come to the conclusion that the Crown has met its burden under s. 752.1(1). The application is allowed. Mr. Eze will be remanded for a 60-day assessment.

II. Serious Personal Injury Offence

7As already noted, the first statutory prerequisite to the making of an assessment order is that the offender must have committed a serious personal injury offence. This term is defined in section 752 of the Criminal Code as, inter alia, an indictable offence involving the use or attempted use of violence against another person, or conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person, and for which the person may be sentenced to imprisonment for ten years or more.

8On January 13, 2022, I found Mr Eze guilty of two counts of sexual assault following a four-day judge alone trial. The facts of these predicate offences, and my reasons for judgment, are set out in detail at R v Eze, 2022 ONSC 277. For present purposes, it suffices to recall that Mr. Eze attacked a woman working as a cleaner in a bathroom in the concourse of the TD Bank Tower. It was late at night. The victim was a stranger to him. Mr. Eze grabbed the victim, covered her mouth with his hand, and forced her to the ground. He pinned her to the ground by holding her knee down with one hand. He pulled down her pants and touched her buttocks and vagina with the other hand. She screamed and struggled to free herself. Mr. Eze let her go. The two encountered each other again moments later in the concourse, outside of the washroom. They circled each other around a large planter and then the victim ran away from Mr. Eze. He chased her down the concourse hall. He caught her, grabbed her waist from behind, and forced her down to the ground with him. Mr. Eze then got on top of the victim and straddled her with his legs over her thighs or mid-section. He mounted her, using violence to dominate and overpower her in an objectively sexual manner. The victim was face-down on the floor. He flipped her over to face him, while remaining on top of her, bringing his intimate parts into close proximity to hers. She was kicking and struggling to free herself. Mr. Eze ultimately got up and ran away.

9I have no difficulty finding that the predicate offences meet the definition of serious personal injury offence in s. 752(a). These sexual assaults were objectively and subjectively terrifying and violent. They were indictable offences that involved the use of physical and sexual violence against the victim and inflicted severe psychological damage to her. They are offences for which an offender may be sentenced to ten years.

10I note that the predicate offences also meet the definition of “serious personal injury offence” under s 752(b) of the Code, namely “an offence . . . mentioned in section 271 (sexual assault).” However, I am focusing on the definition of serious personal injury offence contained in s 752(a) because the Crown has chosen to focus its application on this definition of serious personal injury offence (and the corresponding route to a possible finding that Mr. Eze is a dangerous offender under s. 753(1)(a)(i) and (ii)). I find that the predicate offences qualify as personal injury offences within the meaning of s. 752.1(1)

11Having determined that the first statutory prerequisite to an assessment order has been met, I turn to consider the second: whether there are reasonable grounds to believe that Mr. Eze might be found to be a dangerous offender or a long-term offender.

III. Threshold Test Under Section 752.1(1)

12Having found that Mr. Eze committed a personal injury offence, I may only order an assessment under s. 752.1(1) if I am of the opinion that there are reasonable grounds to believe that he might be found to be a dangerous offender under s. 753 or a long-term offender under s. 753.1.

13Courts have consistently held that the threshold for ordering an assessment is low: R v J.A.T at para. 22; R. v. Redhead, 2021 ONSC 4891 at paras. 43 and 46. Courts have employed different words to give expression to that low threshold, but whichever version language is used to describe the threshold, “in the end there is no material difference in the analysis required of a judge hearing the application”: Redhead, at para. 46. The test recognized by Roccamo J. in R v Vanderwal, 2010 ONSC 265 at para. 27 is authoritative:

It is universally agreed that the threshold is a low one. It is less than the civil burden of proof and far less than the criminal burden of proof. The language in section 752.1 requires the court to consider the totality of the record of evidence and information in support of the application to decide whether there are reasonable grounds to believe the offender might, not will, be found a dangerous offender or a long-term offender. To require any more at this stage of proceedings is to run the risk that a sentencing justice must come close to making findings on an incomplete body of evidence and without the benefit of the assessment proposed under s. 752.1 [Emphasis in original].

14Although the threshold is low, the court must properly perform its gatekeeping role to ensure that the requirements of s. 752.1(1) have been met: Redhead, at para. 47. To say the same thing another way, to make an assessment order, I must find that there is “a real possibility” that Mr. Eze could be found to be a dangerous offender. This is “something more than simply any possibility or a remote prospect only. The intrusion of the assessment frequently with prolonged custody, and its availability to the Crown in sentencing (s.752.1(2)), demands nothing less”: R. v. Naess at para. 77. I must find that there is a real possibility that all of the statutory prerequisites of a dangerous offender or a long-term offender designation might be met.

IV. The Test for Dangerous Offender Status Under Section 753

15The Crown submits that there are reasonable grounds to believe that Mr. Eze might be found to be a dangerous offender under s. 753(1)(a) (i) or (ii). That section reads, in part, as follows:

753(1) – On application made under this Part . . . the court shall find the offender to be a dangerous offender if it is satisfied

(a) That the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing

(i) A pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour,

(ii) A pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour

16In order to be declared a dangerous offender within the definition of s. 753(1)(a)(i) or (ii), the Crown must establish that the offender has engaged in a pattern of repetitive or persistent behaviour as set out in those subsections, of which the predicate offence forms a part: Naess, at para. 60.

17The past conduct said to form the pattern must have involved some degree of violence or attempted violence or endangerment or likely endangerment. Otherwise, the predicate offence would not be part of the pattern: R v Neve, 1999 ABCA 206, at para. 110. However, the past conduct need not necessarily be a personal injury offence and it need not be as seriously violent or endangering as the conduct constituting the predicate offence: R. v. Newman, [1994] N.J. No. 54 (Nfld CA), at para. 79.

18To determine whether a pattern within the meaning of ss. 753(1)(a)(i) and (ii) has been established, the application judge must go beyond a purely facial review of a prior criminal record: Naess, at para 63. The application judge must look deeper, at the context in which the offender committed the past criminal context and the surrounding circumstances: Neve, at para. 118.

19In order to constitute a pattern under s. 753(1)(a)(i) the Crown must prove the following elements:

1. A pattern of repetitive behaviour
2. The predicate offence must form part of that pattern
3. That pattern must show a failure by the offender to restrain his or her behaviour in the past and
4. That pattern must show a likelihood of death, injury, or severe psychological damage to other persons through failure to restrain his or her behaviour in the future.

(Neve, at para 107).

20In order to constitute a pattern under s. 753(1)(a)(ii) the Crown must prove the following elements:

1. A pattern of persistent aggressive behaviour
2. The predicate offence must form part of that patter
3. That pattern must show a substantial degree of indifference by the offender respecting the reasonable foreseeable consequences of his or her behaviour.

(Neve, at para. 108).

21Repetitive behaviour under s. 753(1)(a)(i) and persistent aggressive behaviour under s 753(1)(a)(ii) will constitute a “pattern” on two different bases:

The first is where there are similarities in terms of the kind of offence; the second where the offences themselves are not similar in kind, but in result, in terms of the degree of violence or aggression inflicted on the victims. Either will do. Thus, the mere fact that an offender commits a variety of crimes does not mean that no pattern exists. There is no requirement that the past criminal actions all be of the same or similar form, order, or arrangement (Neve, at para 111).

22In R. v. Charley, 2017 ONSC 3496, at paras. 12 and 14, Morgan J. described a “pattern” thus:

The pattern of repetitive behaviour must include a number of significant similarities between each example of the behaviour under consideration. Of course, the offences need not be identical and there may be differences in the behaviour, “so long as the differences leave the key significant relevant elements of the patter in place”: R. v. Newton at para. 91. The scrutiny of the elements of each offence is not to be made in excessive detail, as microscopic examination of the factual components of the offences could obscure the patter of conduct: R. v. Langevin (1984), 45 O.R. (2d) 705 (ONCA) at paras. 20-21.

To reiterate, the pattern need not be identical, but must contain “enough of the same elements of unrestrained dangerous conduct to be able to predict that the offender will likely offend in the same way in the future”: R v Hogg 2011 ONCA 840, [2011] O.J. No. 5963 (ONCA), at para. 40.

V. The Test for Long-Term Offender Status Under S. 753.1

23The Crown submits that there are reasonable grounds to believe that Mr. Eze might be found to be a long-term offender under s. 753.1. Subsection (1) of that section sets out that:

(1) -The court may . . . find an offender to be a long-term offender if it is satisfied that

(a) It would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;

(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.

24Section 753.1(2) establishes that the court shall be satisfied that there is a substantial risk that the offender will reoffend if the offender has been convicted of a number of enumerated offences, including sexual assault and

(b) the offender

(i) has shown a pattern of repetitive behaviour, of which the offence for which he or she 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 to 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 offence.

25The Crown relies on s. 753.1(2)(b)(ii) for the purposes of this application.

VI. Reasonable Grounds to Believe That Mr. Eze Might Be Found to Be a Dangerous Offender

A. The Evidence

26The Crown relied on Mr. Eze’s criminal record, along with a number of transcripts of guilty pleas, reasons for judgment, reasons for sentence, charge synopses, psychiatric assessments and treatment reports, and psychological case notes in support of its position that there are reasonable grounds to believe that he might be found to be a dangerous offender. I will review this evidence in-depth, in the context and circumstances involved, chronologically.

(i) July 21, 2003: Mr. Eze was convicted of aggravated assault and dangerous operation of a motor vehicle

27The transcript of reasons for sentence was filed on this application. Mr. Eze was sentenced to 90 days in custody for the aggravated assault and 30 days’ concurrent on the dangerous driving, on top of 16 months and 21 days of pre-sentence custody, followed by three years of probation.

28The aggravated assault occurred when Mr. Eze was standing and talking to the victim, who was his friend, on his driveway. He wanted to leave to go play ball. Mr. Eze grabbed the victim’s head and smashed it against the wall, knocking her down. He dragged her by her hair to the roadway, and repeatedly kicked her in the head. The victim required stitches in the back of her head and her forehead.

29In her victim impact statement, the victim described that her eyes were swollen shut for a week after the assault, as a result of which, she was not able to go to the washroom on her own without her mother’s assistance. She had constant headaches. At the time of sentencing, a year and a half after the aggravated assault, the victim was still on medication for the severe headaches she still suffered on a daily basis. The victim had to undergo dental work and, at the time of sentencing, there was still a possibility that she might lose some teeth. She could not eat due to the intense pain she experienced when she opened her mouth. She could not drink without discomfort as her teeth were chipped, and they remained sensitive at the time of sentencing. The victim was a full-time engineering student at the time of the aggravated assault. She lost two years of school to her recovery.

30The dangerous driving conviction arose from the manner in which Mr. Eze drove his car away when confronted by his neighbour after he committed the aggravated assault.

31The PSR, as cited in the reasons for sentence, noted that Mr. Eze did not accept responsibility for his actions. He minimized the victim’s injuries. He said he just lost it and it was 30 seconds of rage. He told the PSR writer that the victim was always making a scene and that he couldn’t tolerate her anymore. When the PSR writer questioned Mr. Eze about the details of the aggravated assault, Mr. Eze laughed and said that these details did not happen.

32The PSR, as cited in the reasons for judgment, further noted that Dr. Duncan Scott, a psychiatrist at the Central East Correctional Centre, met with Mr. Eze on July 16, 2003. Dr. Scott advised that, in his opinion, Mr. Eze minimized the injuries sustained by the victim and had no insight into his offending behaviour. It was Dr. Scott’s opinion that there was a high probability of Mr. Eze reoffending in a manner similar to the aggravated assault as a result of Mr. Eze’s lack of insight.

33Mr. Eze was assessed for fitness to stand trial and criminal responsibility in relation to the 2003 aggravated assault. Forensic psychiatrist Dr. Jonathan Rootenberg authored a report dated January 13, 2003, which was filed on this application. Dr. Rootenberg was of the opinion that Mr. Eze was both fit and criminally responsible. In the course of his assessment, Dr. Rootenberg met with Mr. Eze to discuss the aggravated assault. He noted that Mr. Eze told him that he, Mr. Eze, was angry and upset with his former girlfriend at the time of the assault, and minimized the severity of his assault against her. On the basis of collateral information, Dr. Rootenberg noted that Mr. Eze had a past history of drug induced psychosis, impulsivity, and of aggressive and unpredictable conduct. Dr. Rootenberg was of the opinion that Mr. Eze may have met criteria for personality disorder with antisocial features, but that further diagnostic clarification was required.

34Mr. Eze was assessed for fitness to stand trial a second time. Forensic psychiatrist Lisa Ramshaw wrote a fitness assessment report, dated June 11, 2003, which was filed on this application. Dr. Ramshaw was of the opinion that Mr. Eze was fit to stand trial. She noted that his history and presentation were consistent with schizophrenia. According to Dr. Ramshaw, Mr. Eze rationalized and minimized his offending behaviour, and was “clearly psychotic associated with unpredictable aggressive tendencies.”

(ii) May 3, 2005: Mr. Eze was convicted of assault

35Mr. Eze was sentenced to six days in custody for this assault. I have not been provided with any further information or detail about this conviction.

(iii) May 16, 2005: Mr. Eze was convicted of assault, fail to comply with probation, and fail to appear

36In addition to 13 days of presentence custody, Mr. Eze was sentenced to a suspended sentence and two years of probation. I have not been provided with any further information or detail about these convictions.

(iv) November 11, 2005: Mr Eze was convicted of criminal harassment

37Mr. Eze was sentenced to two months in custody in addition to 109 days of presentence custody. I have not been provided with any further information or detail about this conviction.

(v) May 2, 2006: Mr. Eze was convicted of four counts of fail to comply with probation, one count of weapons dangerous, and one count of carry concealed weapon

38Mr. Eze served 110 days of presentence custody and received a suspended sentence with two years’ probation. The Crown filed an NCR and fitness assessment report in relation to these charges. The report, dated April 6, 2006, was authored by Dr. K. DeFreitas who, I infer, was of the opinion that Mr. Eze was fit and criminally responsible. Dr DeFreitas diagnosed Mr. Eze as having alcohol abuse disorder and antisocial personality traits. The social work record that formed part of Dr. De Freitas’ report explained that the 2006 charges of fail to comply with probation, weapons dangerous, and carry concealed weapon related to Mr. Eze’s conduct at a local grocery store. Mr. Eze explained to the social worker that he went to a convenience store at 2:00 a.m. He said he took a blade with him because they don’t like black people in that neighbourhood. He maintained that he didn’t do anything wrong while in the store, and explained that someone called police on him because he is black. I have not been provided with any further information or detail about these 2006 convictions.

(vi) April 13, 2007: Mr. Eze was convicted of aggravated assault and fail to comply with probation

39On the aggravated assault count, Mr. Eze was sentenced to a total of 20 months in custody. He got 16 months’ credit for pre-sentence custody and had a further four months to serve. I note that the CPIC printout filed by the Crown mistakenly notes that Mr. Eze had served eight months of pre-sentence custody. It did not note that he was given 16 month’s credit for his time served, so that his total sentence was actually 20 months. Mr. Eze was sentenced to 30 days’ concurrent on the fail to comply charge. He was also sentenced to two years of probation.

40The Crown filed the transcript of Mr. Eze’s guilty plea and sentencing on these charges. Mr. Eze ran up behind the victim and stabbed him in the back before running away. The Crown alleged that he had stabbed the victim with a pair of scissors. Mr. Eze had apparently ‘jumped’ the victim two days earlier. There was some indication that Mr Eze lived in an apartment above a person who was known to the victim, and that the victim’s girlfriend was not totally forthcoming with the police.

41The victim was transported to hospital by emergency personnel. He did not have any organ damage, but there was a significant amount of fluid in his lungs and he was having difficulty breathing.

42On his guilty plea, Mr. Eze admitted that he stabbed the victim, that the victim was injured, and that this constituted an aggravated assault. He did not admit the other facts, including that he stabbed the victim with a pair of scissors. On sentencing, the trial judge found that this was a serious and unprovoked attack.

(vii) October 25, 2011: Mr. Eze was convicted of a sexual assault after trial

43Mr. Eze was given a 30 day conditional sentence followed by two years of probation. I note that the CPIC printout wrongly lists the date of this conviction as November 11, 2013. The Crown filed transcripts of the October 25, 2011 reasons for judgment and the November 10, 2011 reasons for sentence.

44The trial judge found that Mr. Eze brushed up beside the victim on a subway platform. His right shoulder made contact with her left shoulder and at the same time, she felt a hand lifting up her coat and squeezing her left buttock. Mr. Eze then walked by her. He was the only person in the vicinity. The victim screamed “you sexually assaulted me” at Mr. Eze. He turned around laughing and said “prove it” to her as he began to run away. He was eventually apprehended in the subway by police. Mr. Eze testified and maintained that he accidentally bumped into the victim, but did not squeeze her buttock. Mr. Eze also meaningfully minimized his criminal record, even when shown his CPIC printout. The trial judge rejected Mr. Eze’s evidence and found that the sexual assault had been proven beyond a reasonable doubt.

45On sentence, the trial judge recognized that this was at the low end of the range of seriousness for sexual assaults. However, the trial judge was concerned about Mr. Eze’s criminal record, which at that point included convictions for two aggravated assaults, two simple assaults, one criminal harassment, and other convictions. The trial judge noted that a number of the assaults were domestic, which he found suggestive of Mr. Eze having problems with women. The trial judge accordingly had a concern for the safety of the public. He sentenced Mr. Eze to a 30 day conditional sentence, followed by two years of probation, one condition of which required him to undergo assessment of issues with women and take appropriate counselling or rehabilitative programming or both.

46The Crown filed two assessment and treatment reports from social worker Grant Fair, one dated October 24, 2012 and the other dated August 20, 2013. Mr. Fair was the counsellor who assessed and treated Mr. Eze as part of the terms of his probation. Mr. Fair noted that Mr. Eze continued to deny sexually assaulting the victim, maintaining that he had just bumped into her. Mr. Fair used a number of actuarial risk assessment tools to endeavour to assess Mr. Eze’s risk of re-offending. While the various risk assessment tools gave differing risk assessment ratings for Mr. Eze, Mr. Fair concluded that combining the results of all of the risk assessment tools suggested an overall high risk of re-offending.

(viii) April 16, 2019: Mr. Eze was convicted of indecent assault

47Mr. Eze received a suspended sentence and 18 months’ probation with 30 days of pre-trial custody noted on the record. The Crown filed the transcript of Mr. Eze’s guilty plea and sentencing in relation to this charge.

48The facts giving rise to the charge were that Mr. Eze was seen by a woman who was walking her dog on a pedestrian pathway with trees lining both sides at 7:00 a.m. She observed Mr. Eze, alone, on the pathway. She was startled because his penis was exposed and he was masturbating. The woman continued walking and eventually circled back. Mr. Eze had moved off the path slightly towards the trees but was still entirely visible. He had removed his clothing. He continued to masturbate. He made eye contact with the woman and continued to masturbate. The woman called the police.

(ix) December 16, 2021: Mr. Eze pleaded guilty to one count of assault causing bodily harm and was convicted by Forestell J.

49Mr. Eze has yet to be sentenced for this offence, as it is following along with the index offences at issue on this application. The Crown filed the synopsis in relation to this assault causing bodily harm. Mr. Eze and the victim were on a TTC subway car. The victim observed Mr. Eze acting disorderly and trying to fight another subway rider. The victim said “look let’s just cool it” to Mr. Eze, who then turned to focus his attention on the victim. Mr. Eze called the victim a faggot and spat on the back of the victim’s jacket. Both Mr. Eze and the victim exited the subway. The victim followed Mr. Eze, trying to flag a police officer. On the street, Mr. Eze grabbed the victim and punched him multiple times about the face, which caused the victim to fall to the ground. While the victim was on the ground, Mr. Eze stomped his head and face area. As the victim was trying to get up, Mr. Eze kicked him directly in the face, which rendered him unconscious. Mr. Eze then stomped the victim’s face/head area one further time. A civilian passerby pushed Mr. Eze away. Mr. Eze fled.

50A civilian flagged down Toronto Police Officers who attended to the victim. They found him unconscious with facial injuries that required medical attention. He was transported to St Michael’s Hospital for treatment.

51The victim sustained the following injuries: a concussion, a broken nose, multiple fractures to the facial area around the nose, an open wound to the back of the head, a swollen face, a sore neck and back, and ongoing psychological trauma.

52The saliva on the back of the jacket was forensically analyzed by the Centre of Forensic Sciences. It generated a match to Mr. Eze’s DNA, which was already in the DNA Offender Databank. A DNA warrant was later executed on Mr. Eze, which confirmed the match.

(x) December 23, 2021: Mr. Eze was convicted of one count of assault causing bodily harm

53Mr. Eze was sentenced to one day in jail in addition to 90 days of presentence custody. The Crown filed a synopsis in relation to this charge.

54The synopsis indicates the following facts. Mr. Eze and the victim were both inmates at the Toronto South Detention Centre. The victim was near the shower area on his unit when Mr. Eze came up behind him for no reason and started to assault him. The victim fell to the ground. Mr. Eze continued kicking the victim in the head while the victim attempted to protect his head and body. Correctional officers intervened. The victim was transported to local hospital where he was treated for a possible concussion with dizziness, and cuts to his face and nose.

B. Analysis

55I do not consider the October 25, 2011 sexual assault by buttock grab or the April 16, 2019 indecent assault by public nudity and masturbation to be past conduct that is capable of forming part of a relevant pattern of behaviour here. To form part of a pattern under s. 753(1)(a)(i) or (ii), the conduct in question must have involved some degree of violence or attempted violence or endangerment or likely endangerment: Neve, at para. 110.

56I do not mean to minimize what the victims of the 2011 TTC sexual assault or the 2019 indecent assault were subjected to by Mr. Eze’s criminal offending against them. These were no doubt shocking and upsetting experiences for these victims, who were innocently trying to go about their lives when Mr. Eze committed his offences against them. However, in my view, this sexual assault and indecent act do not rise to the level of violence or endangerment or psychological damage that would be required to form a pattern of repetitive behaviour or a pattern of persistent aggressive behaviour within the meaning of the dangerous offender provisions. While these offences were illegal, anti-social, and not something the victims should have had to endure, they are not the kind of extremely serious offences that engage the dangerous offender regime.

57I also do not consider the convictions for which I do not have any detail or information beyond the date of conviction, the offences of which convicted, and the sentence, to be capable of forming part of a relevant pattern of behaviour here. The convictions that fall into this category of not enough information to be considered as part of a pattern are: the May 3, 2005 conviction for assault; the May 16, 2005 conviction for assault, fail to comply with probation and fail to appear; and the November 11, 2006 conviction for four counts of fail to comply with probation, one count of weapons dangerous, and one count of carry concealed weapon.

58This leaves me with the following past convictions, which I do consider might well form a relevant pattern of repetitive behaviour or a pattern of persistent aggressive behaviour:

• The July 21, 2003 aggravated assault where Mr. Eze smashed the victim’s head against a wall knocking her down, and repeatedly kicked her in the head when she was on the ground, causing very serious injury;
• The April 13, 2007 aggravated assault where Mr. Eze approached the victim from behind and stabbed him in the back, causing his lungs to fill with fluid and create difficulty in breathing;
• The December 16, 2021 assault causing bodily harm where, after exiting the TTC, Mr. Eze punched the victim multiple times about the head and face causing him to fall to the ground, and then stomped his head and face, kicked him directly in the face which rendered him unconscious, and then stomped the victim’s head and face again once the victim was unconscious, causing very significant injury; and
• The December 23, 2021 conviction for assault causing bodily harm where Mr. Eze assaulted a fellow inmate at the Toronto South Detention Centre from behind, causing him to fall to the ground, at which point Mr. Eze continued kicking the victim in the head, causing injury.

59In my view, these four offences and the predicate sexual assaults contain enough of the same elements of unrestrained dangerous conduct that they might constitute a relevant pattern and enable a prediction that Mr. Eze will likely offend in the same way in the future.

60The following are the significant similarities across Mr. Eze’s relevant past conduct and the predicate offences:

i) Each of the four past offences and the predicate offences involve significant use of violence against the victims; ii) The victims of each of the four past offences and the predicate offences suffered meaningful to serious physical and/or psychological injuries; iii) Three of the four past offences and the predicate offences were unprovoked. They were in the nature of unpredictable surprise attacks, seeming to come out of nowhere. The victims would have been shocked by the suddenness of the attacks that seemed to come as a bolt from the blue.

The defence argues, and I accept, that it is not established that the assault on the fellow inmate at the Toronto South was unprovoked. That the attack on the inmate may not have been unprovoked does not, in my view, detract from what may be seen as an overall pattern of behaviour here. I am not to scrutinize the elements of each offence so microscopically as to obscure the overall pattern of conduct: Langevin, at paras 20 -21. The attack at the Toronto South was, in all other material respects, extremely similar to the other past offences and the predicate offences.

The defence further argues that it is not established that the stabbing in the back was unprovoked, given that there was apparently an earlier incident in which Mr. Eze is said to have jumped the victim, Mr. Eze and the victim were said to have had a friend in common, and the victim’s girlfriend was said not to be forthcoming with police in providing information about the stabbing. I acknowledge, on these facts, that there may well have been some backstory to the stabbing that does not form part of the record. However, it is an inescapable fact that Mr. Eze stabbed the victim in the back as the victim was moving away from Mr. Eze. Whatever altercation or misunderstanding may or may not have gone before between these two men, by the time Mr. Eze stabbed the victim in the back, this was an unprovoked surprise attack. There can be no doubt, that in the moment, Mr. Eze was not provoked by the victim. Indeed, the sentencing judge found that this was an unprovoked attack;

iv) Three of the four past offences and the predicate offences involve assertion of physical control and dominance by Mr Eze over the victim, even once the victim was effectively immobilized or unconscious. The backstabbing did not share this similarity with the past offences and the predicate offences. Mr Eze stabbed the victim in the back, and ran away. He did not seek to then further assert physical control or dominance over this victim. I do not consider this difference in the one offence to detract from a potential of a pattern of behaviour because it leaves the other key significant relevant elements of the pattern in place;

v) Three of the four past offences and the predicate offences involve use of hands and feet, not weapons, to affect physical violence. In this way, these past offences and predicate offences present as impulsive, unplanned, and unsophisticated. The backstabbing did not share this similarity with the past offences and predicate offences because Mr. Eze used some kind of weapon to stab his victim in the back. Some planning or forethought, even if a minimal amount, must have gone into procuring that weapon. I do not consider this difference to be significant, given all the other meaningful ways in which the past offences, including the stabbing, and the predicate offences are similar; and

vi) After three of the four past offence and the predicate offences, Mr. Eze fled. He did not flee after the assault causing bodily harm at the Toronto South. This is not a difference that detracts from the available finding of a pattern here because as an inmate in a custodial facility, Mr. Eze was not at liberty to flee after he assaulted another inmate within the institution.

61I note that the sexual nature of the predicate offences is an added feature that the other past offences do not share. I find that this added feature in the predicate offences does not detract from the pattern that is available here. In all other material respects, the predicate offences are similar to the past offences. Like the past offences, the predicate offences involved significant use of violence; the victim suffered physical injury and psychological damage; the attacks were unpredictable and unprovoked; they involved assertion of physical control and dominance over the victim; Mr. Eze used his hands and feet, not weapons, to perpetrate the attacks giving them an impulsive character; and he fled when the predicate offences were over.

62The psychiatric reports and treatment assessment reports filed on this application document that Mr. Eze minimized the injuries he caused, had no insight into his offending behaviour, and was not remorseful. Psychiatrists noted that he had a history of impulsivity and aggressive and unpredictable behaviour. He was assessed to be at high risk of re-offending on the basis of actuarial risk assessment tools, and on the basis of his lack of insight into his offending behaviour.

63These psychiatric reports and treatment assessment reports are dated. However, notwithstanding their age, in my view, these reports are some evidence that speaks to whether Mr. Eze is likely to cause injury or severe psychological damage to others in the future through failure to restrain his behaviour. A person who has a history of behaving aggressively on impulse, and who has no remorse or insight into that past behaviour, is less likely to be able to restrain similar behaviour in the future.

64Based on all of the relevant evidence before me, I find that the Crown has met the test under s. 752.1 for an assessment order. The Crown has established that there are reasonable grounds to believe that Mr. Eze might be found to be a dangerous offender. The evidence establishes that there is a real possibility of a finding that there is a pattern of repetitive behaviour and a pattern of persistent aggressive behaviour, of which the predicate offences form part. There is a real possibility that that pattern would show a failure by Mr. Eze to restrain his behaviour in the past, and a likelihood of death, injury, or severe psychological damage to other persons through failure to restrain his behaviour in the future. Equally, there is a real possibility that that pattern would show a substantial degree of indifference by Mr. Eze respecting the reasonable foreseeable consequences of his behaviour.

VII. Reasonable Grounds to Believe That Mr. Eze Might Be Found to Be a Long-Term Offender

65I am also satisfied that there are reasonable grounds to believe that Mr. Eze might be found to be a long-term offender under s. 753.1

66The predicate offences involve sexual assault of a stranger, in the middle of the night, in the course of a sudden, unprovoked, and violent attack. Given the gravity of the offences, and Mr. Eze’s lengthy and serious criminal record, a sentence of two years or more might well be appropriate.

67In relation to the requirement in s. 753.1(1)(b) that there be a substantial risk that the offender will reoffend, and the criteria in s. 753.1(2)(b) for a finding of substantial risk of re-offending, the analysis overlaps with the dangerous offender analysis I have already undertaken. Based on the same body of evidence, and for the same reasons, I find that Mr. Eze might be found to pose a substantial risk of re-offending and thereby might be found to be a long-term offender.

VIII. Conclusion

68For the foregoing reasons, and without pre-judging whether Mr. Eze will be found to be a dangerous or long-term offender, the Crown’s application for a s. 752.1 assessment order is allowed.

Presser J.