ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
Applicant
- and -
JASON WINDEBANK
Respondent
David Parry and Nathaniel Smith, for the Applicant Crown
Alex Mamo, for the Respondent, Mr. Jason Windebank
HEARD: July 10, 11, 12 and 13, 2023
Kelly J.
RULING RE:
Dangerous Offender Designation and Sentencing
1Mr. Jason Windebank has been convicted of several offences for violence arising from the abuse of his domestic partner, Ms. Rebecca Theriault, on April 13, 2020, and August 18, 2021. Mr. Windebank appears before me now for sentencing.
Overview of the Proceedings
2Following Mr. Windebank’s convictions, Crown counsel brought a Dangerous Offender application. In support of the Dangerous Offender application, a s. 752.1 assessment was ordered. On August 30 and September 12, 2022, the assessment report of Dr. Jonathan Gray was produced.1 His conclusion supported Mr. Windebank’s designation as a Dangerous Offender. An indeterminate sentence in prison was recommended.
3On April 4, 2023, the Attorney General consented to proceedings being instituted to declare Mr. Windebank a Dangerous Offender. Crown counsel continues to rely on Dr. Gray’s opinion that Mr. Windebank should be designated a Dangerous offender and that an indeterminate sentence in prison be imposed. Crown counsel has filed additional materials in support of their position, including five volumes of material with respect to Mr. Windebank’s family, educational, criminal and institutional history. Counsel for Mr. Windebank has filed materials showing successes since his incarceration for the predicate offences as well as letters demonstrating that Mr. Windebank may have support in the community, if and when released from custody.
4Dr. Gray testified during the hearing. Two other witnesses did as well: Ms. Tijana Lakovic from the Ontario Ministry of the Solicitor General - Institutional and Ms. Cathy Phillips of Correctional Service Canada (“CSC”). No evidence was called on behalf of Mr. Windebank, although written materials were filed. Mr. Windebank addressed the court at the conclusion of the proceeding.
5I have reviewed all of the material in coming to my decisons regarding both designation and penalty. I have concluded that Mr. Windebank is properly designated a Dangerous Offender and that he should serve an indeterminate sentence.
Positions of the Parties
6Crown counsel seeks to have Mr. Windebank declared a Dangerous Offender and sentenced to an indeterminate sentence in prison on the basis that he has been convicted of the following serious personal injury offences: assault causing bodily harm (x2), choking and forcible confinement.
7Crown counsel seeks an order that Mr. Windebank be designated a Dangerous Offender pursuant to ss. 753(1)(a)(i) and (ii) of the Criminal Code, R.S.C. 1985, c. C-46. They submit that nothing short of an indeterminate sentence in prison will adequately protect the public against the commission by Mr. Windebank of murder or a serious personal injury offence.
8Counsel for Mr. Windebank agrees that the offences on which the Crown bases this application are “serious personal injury offences” as defined by s. 752 of the Criminal Code. The defence argues, however, that the Crown has not established beyond a reasonable doubt that Mr. Windebank meets the criteria to be designated a Dangerous Offender. In particular, the Crown has failed to prove beyond a reasonable doubt that Mr. Windebank’s conduct is intractable. As such, Mr. Windebank should not be declared a Dangerous Offender. He should be given a sentence of three years (in addition to time served of 51 months) followed by a 10-year Long-Term Supervision Order (“LTSO”).
9Alternatively, if Mr. Windebank is found to be a Dangerous Offender, the defence submits that the public can be adequately protected by the imposition of a determinate sentence of three years followed by an LTSO for 10 years.
Overview of the Result
10Mr. Windebank is 44 years of age. He began offending at age 12 and has spent most of his adult life in prison. At various times he has been on probation, parole, or subject to judicial interim release orders. His criminal record consists of 134 convictions, including the ones before this Court. Many of the convictions are for violent offences, including several offences against three domestic partners. He has been convicted of manslaughter. He has a history of breaching court orders and the conditions of his parole.
11Mr. Windebank has been diagnosed with antisocial personality disorder and substance abuse disorder. The actuarial instruments place him at a “very high risk” to re-offend. His personal history demonstrates an inability to change his conduct following treatment and other factors.
12While I find that there was a snapshot of approximately 1.5 years when Mr. Windebank was able to lead a pro-social life, it was when he was residing at the Keele Correctional Community Centre (“CCC”) under supervision. He was gainfully employed, for the first time in his life, during that period. I also accept that Mr. Windebank was unable to participate in several programs while on probation because he was re-incarcerated before he could participate and complete them.
13I am also mindful that Mr. Windebank has achieved success while incarcerated awaiting the disposition of this matter. In particular, he has completed his high school education and is enrolled in college courses. Despite those successes, however, they do not alter my finding that he is a Dangerous Offender who requires an indeterminate sentence in prison to protect the public.
14I have determined that the Crown has proven all of the constituent elements of s. 753(1)(a) of the Criminal Code beyond a reasonable doubt and that Mr. Windebank must be declared a Dangerous Offender. He has been convicted of serious personal injury offences. He is a threat to the life, safety and physical and psychological well-being of others.
15I am satisfied that the evidence establishes a pattern of repetitive behaviour that shows “a failure to restrain his behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his behaviour”, pursuant to s. 753(a)(i) of the Criminal Code.
16I am also satisfied that the Crown has proven the requisite elements of s. 753(1)(a)(ii) of the Criminal Code beyond a reasonable doubt. It has been demonstrated that there is a pattern of persistent aggressive behaviour, including the predicate offences, that shows a substantial degree of indifference on the part of Mr. Windebank respecting the reasonably foreseeable consequences to other persons of his behaviour.
17I have also determined that any disposition short of an indeterminate sentence in prison will not adequately protect the public from the commission, by Mr. Windebank, of murder or a serious personal injury offence.
18What follows are my reasons for coming to these conclusions.
Offending History
The Predicate Offences
19The Crown relies on two sets of predicate offences committed by Mr. Windebank on his most recent domestic partner, Ms. Theriault. I found that on both occasions, Mr. Windebank assaulted her without provocation.
20The two incidents giving rise to the convictions on the predicate offences may be summarized as follows:
April 13, 2020: After discussing their love for each other, Mr. Windebank “snapped” and started beating Ms. Theriault. He punched her in the face and hit her on her head, chest and ribs. He put her in a choke hold to the point that she could not breathe. Mr. Windebank said that he was going to kill her. Ms. Theriault screamed, at the top of her lungs, for help. As a result of this assault, her eyes were black, her mouth was bloodied and bruised, and her shoulder had bite marks inflicted by Mr. Windebank.
August 18, 2021: On this occasion, Mr. Windebank was occupying the bathroom. Ms. Theriault asked to be let into the bathroom at which point, Mr. Windebank “lost it”. He pushed her to the floor and punched her in the head with a closed fist. Thereafter, Mr. Windebank trapped Ms. Theriault in the bedroom and continued his assault. Ms. Theriault then went to the kitchen to make him something to eat. He did not like what she prepared, so he threw the food all over the wall and floor. During this assault, Mr. Windebank hit Ms. Theriault on her head, breasts, chest, back, legs, tailbone and fingers. She begged him to stop but he did not. As a result of this assault, Ms. Theriault suffered the following injuries: black eyes, bruising to her forehead, a cut to the scalp, an injury to her right palm and elbow, a cut to her hand and fingers and bruising to her breasts.
21Mr. Windebank was convicted of several offences related to the two abovementioned incidents. Counts 1 and 2 deal with the occurrence on April 13, 2020. The rest arise out of the incident on August 18, 2021. The convictions are as follows:
| Count | Offence | Criminal Code Section |
|---|---|---|
| 1 | Assault cause bodily harm. | 267(b) |
| 2 | Assault causing bodily harm by choking. | 267(c) |
| 3 | Assault. | 266 |
| 5 | Assault causing bodily harm. | 267(b) |
| 6 | Utter death threats. | 264.1(1)(a) |
| 7 | Forcible confinement. | 279(2) |
| 8 | Mischief to property (under $5,000). | 430(4) |
| 9 | Causing unnecessary suffering to an animal (a dog). | 445.1(a) |
Criminal Record
22Mr. Windebank has 134 entries on his criminal record, including the eight offences committed arising from the predicate offences. I have included the entries on Mr. Windebank’s criminal record in Appendix “A” attached hereto.
23Needless to say, the criminal record is extensive. It begins when Mr. Windebank was a young offender (in 1994). The offences for which he was convicted include offences of violence, property and violations of court orders. He has been convicted of assault, uttering threats and robberies. He has received a variety of sentences that include open and closed custody as a youth, probation, incarceration in the reformatory and, more recently, in the penitentiary following a conviction for manslaughter. He has also been convicted, in 2019, of assaulting the same victim assaulted in the predicate offences, Ms. Theriault.
24The offences involving Mr. Windebank’s domestic partners in addition to the predicate offences may be summarized as follows:
May 31, 1999: Mr. Windebank slapped and pushed his girlfriend (Ms. Denise Jules) to the floor. He yanked her phone jack out of the wall. She was not physically injured. On January 20, 2000, Mr. Windebank was convicted of assault and sentenced to 60 days’ intermittent custody, followed by three years of probation.
November 26, 2000: Mr. Windebank pushed his girlfriend’s mother against a wall, causing her to strike her head. She suffered a “large welt” as a result. On December 20, 2000, Mr. Windebank was convicted of assault and failing to comply with probation. He was sentenced to 30 days in custody on each charge concurrent, in addition to 25 days, time served.
August 2004: Mr. Windebank was charged with a number of offences relating to his then girlfriend, Ms. Charlene Chapman. Mr. Windebank hit her in the face with a cellphone. On January 18, 2005, Mr. Windebank was convicted of assaulting Ms. Chapman. He was given a suspended sentence and placed on probation for 18 months in addition to three months, time served.
August 10, 2005: Mr. Windebank was charged with assault and other charges when he hit Ms. Chapman, stole her keys and Native Status card. On November 28, 2005, Mr. Windebank was convicted of assault. He received a suspended sentence together with six months of probation.
February 2, 2006: Mr. Windebank was again charged with assaulting Ms. Chapman. He asked if he could stay the night in her home. When his request was denied, he became “enraged”. He punched Ms. Chapman in the ribs. On April 10, 2006, Mr. Windebank was convicted of assault. He was sentenced to 52 days’ intermittent custody in addition to 49 days of pre-sentence custody. He was placed on probation for 18 months.
July 15, 2006: Mr. Windebank was, again, charged with offences involving Ms. Chapman. Ms. Chapman was five months pregnant. They were outside a subway station when Mr. Windebank took Ms. Chapman’s metro pass and sold it to a stranger for $20. Using the money, he purchased some crack cocaine. It was a piece of wax. Frustrated with his purchase, he demanded that Ms. Chapman panhandle for money. He then backhanded Ms. Chapman, striking her in the face. On September 7, 2006, Mr. Windebank was convicted of assault. He was sentenced to five months in custody in addition to 55 days, time served.
January 11, 2007: Mr. Windebank was charged with more offences involving Ms. Chapman. He forced his way into her apartment and refused to leave. He took her cellphone. Thereafter, he slapped her across the face when she found crack cocaine in his jacket and confronted him. He also blamed her for losing a friend’s telephone number and kicked her in the head. On April 4, 2007, Mr. Windebank was found guilty of two counts of assault and two counts of failing to comply with probation. He received a global sentence of five months in custody in addition to eight days, time served.
May 8, 2010: Mr. Windebank was charged and later convicted of manslaughter. Mr. Windebank had had a liaison with the partner of a roommate and friend. They got into an argument. Mr. Windebank assaulted his friend (Mr. Giuliano Montoni) who later succumbed to his injuries and died.
June 29, 2019: Mr. Windebank was charged and convicted of assaulting Ms. Theriault during an argument at their home on Sherbourne Street. A verbal argument took place. Mr. Windebank pushed Ms. Theriault, causing her to fall into a piece of furniture. She called the police two days later following another argument. Mr. Windebank pleaded guilty. He was given a suspended sentence with one year of probation.
25I do not intend to summarize the entirety of Mr. Windebank’s other criminal offences here. However, the following is a summary of some of them:
December 3, 1992: While in a group home, Mr. Windebank was confronted by staff. He became agitated and assaulted one of the female staff members, pulling her hair and kicking her in the stomach.
March 30, 1993: While watching his six-year-old cousin in the basement of her home, he held her down, covered her mouth with his hand to prevent her from screaming and attempted vaginal intercourse. He then forced cunnilingus on her and told her not to tell anyone and if she did, he would go to jail. He denied these allegations at trial but was convicted.
October 4, 1998: Mr. Windebank broke the windows of three cars. Following the last incident, the car owner chased and caught Mr. Windebank. Mr. Windebank attempted to stab the owner with a screwdriver. He was held until police arrived at which time, he spat at the police officer. He was convicted of several offences arising from this incident on December 4, 1998.
October 6, 2000: Mr. Windebank was convicted of assault and of mischief. At the time of these incidents, Mr. Windebank was in an LCBO store. He was asked by an employee if he needed assistance. In response, Mr. Windebank punched the employee in the head, kicked his legs and then spat at him. He punched the security guard in the wrist. He did not appear for two court appearances. When asked by the police why he did not attend, he said, “because I didn’t want to”.
March 27, 2001: Mr. Windebank was charged with theft under $5,000, possession of stolen items and obstructing police. On the day of his release from custody, he went to an HMV store that he was ordered not to attend. He shoplifted some CD’s. He gave a false name on arrest. Probation Officer Paul Grady noted, “this is one of the more blatant violations of an order seen by this writer”.
June 12, 2001: Mr. Windebank was charged with attempting to steal a bicycle. He was then charged for uttering threats because he told the police, “I’m going to come back in here with a bomb and blow up the station.”
February 28, 2002: Mr. Windebank was convicted of offences arising from his incarceration at the Don Jail. He was convicted for assaulting and stabbing another inmate with two co-accused.
May 3, 2005: Mr. Windebank asked a man for a cigarette at a subway station. When his request was declined, Mr. Windebank punched the man in the upper back and then the face. Upon arrest, he threatened the officer, saying, “I know where you work. I’m coming back.” He then kicked the air near the officer’s head saying, “see what I can do to you”. Mr. Windebank was convicted of several offences arising from this incident.
April 14, 2006: Mr. Windebank was convicted of indecent assault for having sexual intercourse with Ms. Chapman on the grounds of a public school at 3:00 p.m. When arrested, he was swinging his arms to avoid being handcuffed and he was charged with assault.
October 31, 2007: Mr. Windebank was convicted of a number of offences regarding his attendance at his brother’s apartment. His brother asked him to leave, but he refused. Mr. Windebank’s father attended, and Mr. Windebank became enraged. He hit his father with a coffee mug and then scratched his father’s car when he left.
November 29, 2007: Mr. Windebank attended at a movie theatre with two others. He asked a man in the doorway to move and punched him in the face. He threatened the victim. He was convicted of assault causing bodily harm arising from this incident on March 5, 2008.
May 9, 2008: Mr. Windebank was charged with offences arising from the robbery of a gold chain from a stranger’s neck. He punched the stranger in the eye and also punched the police officer who apprehended him. He gave a false name to police and kicked out the scout car’s rear window.
July 24, 2008: Mr. Windebank was convicted of offences arising from an incident where he shoplifted a shirt. He was arrested by a security guard and kicked him in the shoulder. He spat at another security guard while telling him he was positive for HIV. He repeatedly spat in the back of the scout car. He then masturbated and ejaculated in his cell at the station.
May 20, 2009: Mr. Windebank was convicted of offences for spitting in the face of a random stranger. When apprehended by security guards he spat at them and tried to kick them. He kicked out the window of the scout car and tried to escape.
October 5, 2009: Mr. Windebank was convicted of harassing his brother’s ex-wife.
Personal Background
Family Background
26Mr. Windebank’s family background was outlined in the voluminous materials provided by Crown counsel. A Gladue Report was authored in 2012 for use at Mr. Windebank’s sentencing hearing for manslaughter. It was included in the materials as well as numerous reports provided over the years.
27A summary of Mr. Windebank’s family background is as follows:
a. Mr. Windebank is 44 years of age. He was born on January 23, 1979, in Toronto. He is the youngest of two boys.
b. He is an Aboriginal person as defined by s. 35 of the Constitution Act, 1982. He is not currently recognized as a “Status Indian”.
c. Mr. Windebank’s parents separated when he was two years of age. His father would “pop” in and out of his life when he was a child. He was employed by CN Rail as an electrical engineer. It appears that Mr. Windebank’s father followed through with none of his commitments and as a result, Mr. Windebank resented him. Mr. Windebank has committed offences against his father. As I have just mentioned, he scratched his father’s car and attacked him on October 31, 2007.
d. Mr. Windebank described that his mother continually partied with different men and paid no attention to her children. When he was six or seven years of age, his mother got together with his stepfather. He described his stepfather as strict, and Mr. Windebank felt that he did not want the children around. Often, he and his brother were locked in the basement.
e. Mr. Windebank described that he was sexually abused by his stepfather as well as a former boyfriend of his mother. Additionally, he was physically abused by his mother and his stepfather. On one occasion, his stepfather used a metal hose from the vacuum cleaner to assault him. His mother denies abusing Mr. Windebank but agrees that her husband, Mr. Windebank’s stepfather, hit him a few times. She stated that that was “pretty good considering how Jay [Mr. Windebank] is”. The Children’s Aid Society intervened temporarily because of the signs of abuse.
f. Mr. Windebank advised that he had no contact with either parent between the ages of 11 and 22. His mother admitted that she went years without seeing her son. He stayed in foster and group homes during this time. His father died in 2011. Mr. Windebank’s mother moved to New Brunswick with her husband.
g. Mr. Windebank said that both parents and his brother abused recreational drugs and alcohol. When he was a child, his mother was addicted to heroin and was an alcoholic. Mr. Windebank was not sure if there was a history of psychiatric disorders because, as he said, “I didn’t have a family-oriented life”.
h. It is clear from the record that Mr. Windebank’s mother was concerned about him from a young age. In 1994, she expressed frustration that despite “custodies, residential placements, etc.”, they did not have a psychiatric/psychological assessment of her son. She contacted her MPP who could not assist. According to a newspaper account, she was threatened with child abandonment charges if she did not take him into her home. She explained that she could not do so and that the authorities were putting her son’s welfare ahead of the safety of her family and community. Various attempts at family counseling, at a very early stage, appeared futile due to anger and resentment shown by the parties towards each other.
i. Following his sentence for manslaughter, Mr. Windebank’s mother indicated that she would be happy for him to live with her and her husband in New Brunswick. There does not appear to be such an offer at this time.
Educational History
28Mr. Windebank attended at Regent Park Public School for grades one and two. His family moved from that area when Mr. Windebank was approximately seven years of age. They moved to Jane Street and Finch Avenue in Toronto. Mr. Windebank was described as a smart child but was placed in a behavioural class because it was believed he suffered from Attention Deficit Disorder.
29At age nine, Mr. Windebank’s family moved to Lisle, Ontario and he started in grade three. Again, he was placed in a behavioural class.
30In and around age 10, Mr. Windebank attended at the Robert Thompson Centre School (“RTC”). The reason provided was that he had “poor peer relations, low self-esteem and a general lack of effort in school”. Five reports were provided by the Centre, commencing in 1990 when he was 11 years old. In essence, the reports describe Mr. Windebank as a conscientious student who was eager to please. That said, the reports also describe a disruptive student who had difficulty restraining himself.
31Mr. Windebank started at the RTC in 1990 as a day student. He was described as disruptive in class, impulsive and unable to get along with his peers. He was easily influenced by other students. He was suspended for three days, at age 11, for fighting. He was described as “self-justifying” and had difficulty accepting responsibility for his own behaviour.
32Mr. Windebank was involved in the life skills program at RTC and met with a support worker weekly.
33The case summary from the RTC, dated November 1991, noted that Mr. Windebank “physically abused” staff and school property. He left the property without permission. He denied any responsibility for his behavioural issues. It was reported that Mr. Windebank’s parents could not control him and that their only option was to confine him to his room.
34In 1992, Mr. Windebank was referred to the residential component of the RTC by his parents because of an escalation of problems at home. He was not following the direction of his parents and was engaging in physical confrontations with his mother. He was admitted on January 13, 1992. As of August 1992, Mr. Windebank refused to see his mother.
35After he was placed in the residential programs, it appeared that Mr. Windebank’s aggressive behaviours (i.e., assaulting staff members and peers) decreased. That said, he continued to deflect responsibility for his negative behaviours. He had difficulty maintaining relationships with peers. He would inappropriately touch female classmates. He would steal from others and threaten people. In February 1993, he was charged for a second assault on staff.
36The report dated April 1993 describes Mr. Windebank’s problems as “lying, stealing at home and in the community, and denying the existence of his own problems”. He had difficulty with his feelings and the staff were concerned by his lack of affect, “one minute he is angry and the next minute he will act as if nothing happened”. The report states as follows:
Jay’s apparent view of relationships was one of ‘what was in it for him’. He would use others to get what he wanted, then discard that person once he had achieved that purpose. Jay would also use others to put the blame on for his problems. This allowed Jay to avoid taking ownership for his actions thus maintaining a ‘clear conscience’.
37The report states that Mr. Windebank has made minimal gains in his goal areas because of unwillingness, inability and family stressors. That said, he was able to return to public school in January 1993. RTC determined that Mr. Windebank required work in the following areas: development and maintenance of caring relationships; self-image; impulse control; the realization and eventual ownership of his problems; and a sense of societal morals and values. In 1993, Mr. Windebank started to do well academically. He completed assignments but still had behavioural problems.
38In April 1993, the Centre described other recommended services as follows:
A structured, somewhat treatment-oriented program which also includes day to day life skills may be beneficial to Jay. However, Jay’s observed unwillingness and/or inability to commit to treatment should be considered when determining his future placement. As well, family counselling could prove to be meaningful in helping Jay and his family come to terms with past issues and determine the future of their relationship.
39On April 14, 1993, Mr. Windebank was discharged from RTC to Morton House in Barrie, Ontario. He later moved to Kennedy House in Toronto and was there from ages 12 to 18. He then went to Covenant House where the shelter staff assisted him in getting his own apartment.
40Mr. Windebank dropped out of high school in grade 11. He got his diploma while he was in custody for these offences. His transcript from 2022 would indicate that he is bright. In particular, he excelled in science, advanced learning strategies and personal life management.
Employment History
41Mr. Windebank has earned an income from the following: painting houses, working in a flea market, working in his brother’s tattoo shop and selling drugs. After his release from the penitentiary for manslaughter, Mr. Windebank was employed at Coleman’s Containers for approximately 1.5 years in and around the time he pleaded guilty to assaulting Ms. Theriault in June 2019.
42Mr. Windebank has also been employed in various capacities, at various times, while incarcerated.
Relationship History
43Mr. Windebank has a 13-year-old daughter and a 17-year-old son from previous relationships. He has no contact with either child, nor does he provide them with financial support. He was involved in a common-law relationship from 2000-2007. He was involved romantically with Ms. Theriault for approximately four years at the time of the predicate offences.
44The criminal history demonstrates that Mr. Windebank has been found guilty of several criminal offences against his domestic partners. Mr. Windebank did apologize to Ms. Theriault during the sentencing proceeding.
Medical History
45Mr. Windebank is HIV positive. He denies any other chronic medical problems. He previously suffered from asthma but does not currently. On occasion, he has lost consciousness due to head injuries caused by police being rough with him upon arrest.
46Mr. Windebank has had various admissions at health institutions as follows:
November 26, 2007: Police brought Mr. Windebank to St. Michael’s Hospital. He was described as “very agitated”. The presenting issue was described as “substance abuse, violent bizarre behaviour”.
July 17, 2009: Mr. Windebank was, again, brought to St. Michael’s Hospital by police. He declined treatment.
August 18, 2009: Mr. Windebank had been filling out forms at the East Toronto Social Services in an effort to qualify for Ontario Disability Payment Services. He became “agitated” towards staff and was brought to Mount Sinai Hospital. He was placed on a Form 1 pursuant to the Mental Health Act, R.S.O. 1990, c. M.7 for an involuntary psychiatric assessment for risk of harm to others. He was brought to the Centre for Addiction and Mental Health (“CAMH”). While there, Mr. Windebank required physical restraints to prevent aggression towards staff. He was described as “very disorganized, talking nonsense, agitated, swearing, attempting to leave unit, angry”. Drug screening tested positive for cocaine and cannabinoids.
August 20, 2022: Mr. Windebank was admitted to CAMH under the care of Dr. Jorge Soni. The following day, he was more settled and under control and discharged with a diagnosis of “psychosis NOS [not otherwise specified]”.
Substance Abuse History
47Mr. Windebank said that he first had alcohol when he was 10 years of age and was drinking regularly by age 19. Mr. Windebank reported “binge drinking, difficulty stopping after one or two drinks, fighting when intoxicated, and spending too much money on alcohol”. He was drinking one or two beers a few times a week at the time of the predicate offences. He had been on a crystal methamphetamine binge as well.
48Mr. Windebank reports that he began using marijuana at age 12. He used it to relax and then graduated to cocaine (sporadically) as well as LSD, Ecstasy and crystal methamphetamine. Many of his offences were committed while he was under the influence of drugs and alcohol.
Institutional History
49Mr. Windebank has spent most of his adult life imprisoned. Over the course of his incarceration, there were numerous misconducts recorded for threatening language or not following directions. There were several misconducts for assault or threatening assault. They were committed on both correctional officers and other inmates. The following is a summary of some of the misconducts:
| Misconduct | Dates |
|---|---|
| Offences involving corrections officers and other staff. | May 27, 1997; September 20, 1999; March 29, 2001 (x2); October 4, 2001; October 18, 2001 (x3); February 2, 2002; February 15, 2002; March 23, 2003; April 5, 2006; May 11, 2007; September 22, 2008; May 7, 2009; and March 14, 2017. |
| Assaulting a peer. | May 27, 1997; March 29, 2001; October 4, 2001; October 18, 2001; April 5, 2006; June 20, 2007; May 7, 2009; July 15, 2013; March 8, 2014; March 10, 2014; September 22, 2015; and November 17, 2022. |
| Running a store out of his cell. (Mr. Windebank was alleged to have used his mother’s name to get money orders to run the store. He spent 125 days in segregation following which, he was transferred from Warkworth to Dorchester.) | September 2012. |
| Possession of contraband/drugs. | November 20, 2021. |
50Much of Mr. Windebank’s treatment came about while he was incarcerated in the penitentiary for manslaughter. Unfortunately, he was not in the community long enough to participate in programs during his probationary period because he was reincarcerated soon after his release.
51Mr. Windebank’s participation in the CSC treatment programs may be summarized as follows:
August 27, 2012: An “Elder Review” was prepared by Aboriginal Elder Ms. Linda Zaluska. She recommended that Mr. Windebank participate in various activities to establish and maintain a connection with his heritage and to deal with his difficult childhood.
September 18, 2012: Psychologist Dr. Brian Farrell completed an assessment at the Millhaven Assessment Unit. He concluded that Mr. Windebank was adjusting to incarceration and that no further psychological intervention was required.
October 9, 2012: Mr. Windebank’s initial “Correctional Plan” indicated areas for improvement that included the following: personal/emotional; attitude; substance abuse; marital/family; community functioning; education/employment and associates. His motivation to change was described as “medium”.
May 15 to October 23, 2013: Mr. Windebank attended 71 of 75 sessions of the Aboriginal High Intensity Family Violence Prevention Program. Ms. Kimberly McLinton, the facilitator of the program, described that Mr. Windebank was “respectful” and “positive”. He successfully completed the course, and Ms. McLinton wrote that Mr. Windebank “made gains in all … treatment target areas”. The targets of the program included problematic thinking related to abuse, cognitive distortions regarding the role of women, emotions mismanagement, self-regulation, deficits in social skills and peer association.
During the program, Mr. Windebank admitted that he used violence to control his romantic partners. He was triggered by a feeling that a partner was unfaithful to him. He would blame others for his actions. He was committed to improving his ability to manage his emotions and reduce his impulsivity.
November 15, 2013 to February 7, 2014: Mr. Windebank attended and “successfully completed” the Violence Prevention Program, Moderate Intensity. He attended all sessions and eventually became a key participant. He was described as polite and got along with others. He worked hard to improve the quality of his work. He appeared committed to living a “violence free lifestyle”.
February 25 to April 14, 2014: Mr. Windebank participated in the Aboriginal Basic Healing Program, Revised. Ms. McLinton advised that Mr. Windebank was a “respectful, punctual, active group member”. His motivation was described as “High”, and he was committed to learning new skills. He improved from “satisfactory” to “good” in the following areas: goal setting; understanding consequences to his actions on others; pro-social beliefs and attitudes; self-management skills; recognition of factors leading to his offence; and a self-management plan to address relevant risk factors.
July 11 to September 16, 2014: Mr. Windebank did not complete the program entitled, National Substance Abuse Program, Moderate Intensity. He attended 20 of the 26 sessions and two individual make up sessions before being removed from it. Mr. Windebank “struggled” in the program, and he was distracting to the others (humming songs and tapping his hands). He was argumentative and “held a grudge” when given “constructive feedback”. Ms. Denure said that Mr. Windebank was suspended because she felt intimidated when Mr. Windebank said, “shut the f---up, I wish you would just shut the f--- up. All you do is natter, natter, natter and you are stressing me out. I cannot do anything right”. On the day he was dismissed, the teacher recorded that Mr. Windebank “interrupted this writer and said, ‘I don't need this program. I haven't used in three years. I am only taking this program because I am being made to do this, because of my Correctional Plan. I plan to never use again. I am done and you are making us do these relapse prevention plans which are stupid’”.
November 26, 2014 to February 27, 2015: Mr. Windebank participated in the Aboriginal Offender Substance Abuse Program. He was described by the facilitator (Ms. Arlene Jacobs) as polite. He was a participant in the group. He acknowledged that he handled things badly in his last group and regretted his actions. He was described as “motivated and engaged”. He completed his homework on time with “detail and thought”. He identified his high-risk situations and created a “self-management plan”.
September 17, 2015: Mr. Windebank attended one session of the Aboriginal Integrated Correctional Program Model – Primer Program. He was in segregation thereafter and remained there until he was transferred to Dorchester.
October 16, 2015: An updated Correctional Plan was created while Mr. Windebank was at Warkworth Penitentiary. Information was obtained that Mr. Windebank had been involved in subculture activities and that he had assaulted another offender in the institution, resulting in him being segregated. Based on this information, an involuntary transfer to another institution was commenced. Amongst other things, his progress overview on motivation changed from “medium” at intake to “low” at the time of the report. The reason provided was, “Motivation will be amended to Low at this time as WINDEBANK has continued to display behaviours not becoming of someone who is motivated to change his offending behaviours.” While he appeared engaged at the time of intake, it was assessed that that was no longer the case at the time of this report.
October 21, 2015: Dr. Goodarzi (psychologist) at Dorchester Institution did not identify any mental health issues.
September 24, 2016: Mr. Windebank filled out an inmate request directed at psychology. Mr. Dominique Bourgeois met with him. She concluded that Mr. Windebank wanted assistance to correct some details in his reports that he believed were false. They concluded that Mr. Windebank was “a low need on the Mental Health Scale”.
52The documents filed by defence counsel in this proceeding show that Mr. Windebank has, most recently, completed the following programs while incarcerated awaiting disposition of this matter: Self Accountability Workshop, May 2023; Healthy Relationship Workshop, June 2023; Anger Management Educational Session, September 2022; Men’s Educational Sessions – Core Life Skills; Anger Management, March 2023; Overdose Prevention Training, June 2022; Changing Habits, September 2022; Anger Management, May 2023; Supportive Relationships, September 2022; Core Life Skills Substance Use, June 2023: and Anti-Criminal Thinking on July 10, 2023.
53As I have stated previously, Mr. Windebank completed his high school education while awaiting this proceeding. He is currently enrolled in college courses (business principles and marketing). He has participated in one-on-one counseling with the Native Inmate Liaison Officer (referred to below) and the chaplain. He has consulted an outreach worker weekly.
54A letter was provided by Mr. Anton McCloskey, the Federal In Reach Community Development Coordinator with Prisoners with HIV/Aids Support Action Network (“PASAN”). He states that Mr. Windebank has been a PASAN client since 2010. Mr. McCloskey has worked with Mr. Windebank over the past year. Mr. Windebank has “identified programs he is interested in participating in to work on his health and well-being”. He describes Mr. Windebank as “forthcoming about his charges and acknowledges the way trauma has impacted his life as an HIV positive man”. Mr. Windebank has also received support from PWA and The 519. He shows initiative in both the prison system and in the community to access the services he needs.
55Ms. Megan MacDonald, the manager of the education program at Amadeusz provided a letter dated July 15, 2022. She advised that Mr. Windebank voluntarily participated in the program that supports those who are incarcerated to create positive change in their lives through access to education, community supports and exceptional care. She described that throughout his involvement with Amadeusz, Mr. Windebank “has demonstrated that he is a dedicated, capable, and engaged participant”. He attends regularly, completes assignments, takes initiative and asks for help when needed. Mr. Windebank has been a pleasure to work with as he “maintains a positive attitude toward his work with Amadeusz staff”.
56A letter was provided by Ms. Shannon Mason, an addiction counselor at the Toronto East Detention Centre. She advised that at his request, she met with Mr. Windebank on June 5, 2023. She conducted an assessment to identify the situation as well as his immediate needs and goals regarding substance use. They explored treatment options and met thereafter to complete a treatment plan and to provide substance use education.
57Mr. Keihlah Belleau of the Native Men’s Residence also provided a letter in this proceeding. He is a Native Inmate Liaison Officer and helps support clients emotionally, physically, mentally and spiritually. He has been working with Mr. Windebank since he started at the Toronto East Detention Centre. He stated that Mr. Windebank “has shown he is wanting to learn more of his native roots and would like to get connected with accessing more native programming”. Mr. Windebank attended every program Mr. Belleau has offered. He believes that Mr. Windebank will “exceed all his expectations with the Sagatay program”. He described that Mr. Windebank has a “positive mindset”.
58A letter from Mr. Dennis Woodcock, the Case Manager of the Native Men’s Residence, Sagatay, was provided as of June 30, 2023. Mr. Woodcock confirmed that Mr. Windebank is on the waitlist for the residence. He is to contact Sagatay as soon as he has a release date and will move in as soon as a bed is available. Sagatay is a facility that provides “programs and services designed to provide clients with the tools and resources required for them to succeed in the broader urban environment as strong self-confident and self-sufficient Aboriginal men”. Various services are provided in a communal living environment.
Record of Supervision
59Mr. Windebank has a poor record of complying with court orders requiring supervision. He has been convicted of breaching his terms of probation 17 times. He has breached a conditional sentence order twice. His parole has been revoked.
60The probation notes are full of representations made by Mr. Windebank that he wishes to participate in programming to better himself, as he did during this proceeding. Mr. Windebank’s probation officers referred him to programs for anger management, spousal assault and addiction. He never completed any of the programs in the community because he missed intake appointments, or he was incarcerated.
61In 2019, Mr. Windebank was convicted of assaulting Ms. Theriault. Mr. Windebank failed to attend two appointments for the Partner Assault Response Spousal Abuse (“PARS”) programs arising from his conviction for assaulting Ms. Theriault. The program facilitators had tried to reach Mr. Windebank but were unsuccessful in doing so before his probation order expired. Mr. Windebank explained that he attended his probation appointments as required, but he was not able to take the PARS Program due to the fact that the COVID-19 pandemic had started.
62Upon his release from the penitentiary for the manslaughter conviction, Mr. Windebank was to reside in the Parrtown CCC under the supervision of Probation Officer (“PO”) Jason Sherman. The following is a summary of the casework records:
July 20, 2016: It was observed that Mr. Windebank made some “concerning comments” to his mother. He also made comments that he wished to punch PO Sherman, and another inmate in the halfway house who was being too loud.
July 26, 2016: Mr. Windebank’s mother reported that Mr. Windebank had called her inappropriate names and her number was removed from the approved list. His attitude was described as “steadily declining”.
August 2, 2016: Mr. Windebank wished to transfer to Toronto from New Brunswick. It was noted that his “risk appears manageable in the community”. That said, there is a note that Mr. Windebank “appears to have difficulty taking accountability for his actions and often feels entitled”.
August 29, 2016: A call was received from a woman who had a relationship with Mr. Windebank. She mentioned that the relationship had ended. He was never aggressive to her or her children.
September 11, 2016: It became apparent that Mr. Windebank was developing a friendship with Ms. Theriault. She described them as friends.
September 19, 2016: Two CCCs in Ontario refused to accept Mr. Windebank. He would be transferred to Halifax. A note in the records states that Mr. Windebank “keeps getting upset when things don’t go fast enough … He has been basically harassing” the caseworker on a daily basis. He accused the caseworker of “fucking” with his money when it was delayed. He was described as “becoming increasingly belligerent”.
September 26, 2016: Mr. Windebank’s release was suspended due to non-disclosure of relationships to his PO.
December 22, 2016: The Parole Board of Canada (“PBC”) suspended his parole. It noted that Mr. Windebank’s relationship was concerning because of “issues with regard to children, a possible pregnancy, poor boundaries, HIV and his propensity for domestic violence”. His risk was deemed, “no longer manageable in the community”.
March 1, 2017: Mr. Windebank was upset that he could not be transferred to Ontario. He advised his PO that he did not have to listen to him and to “suck a Windebank”. He subsequently apologized.
March 8, 2017: Mr. Windebank lost his PBC appeal.
September 25, 2017: Mr. Windebank was transferred to Beaver Creek. He threatened to abscond if he did not get a bed at Keele CCC.
December 28, 2017: Ms. Theriault picked up Mr. Windebank and took him to the Keele CCC. At his first meeting, he blamed his mother for his reincarceration (she made a false statement about his HIV status and relationship). He advised that he had been sober since 2011. His new PO reported that Mr. Windebank “presented as appropriate, polite and communicative during the Intake Interview. At this preliminary juncture, Jason’s risk is considered manageable in the community under the strong social controls of his supervision and with close monitoring”.
January 2018: Mr. Windebank secured a job at a box manufacturer (Coleman’s) and was granted a weekend pass to be with his girlfriend. She reported that things were going well, and that Mr. Windebank was enjoying his job. Thereafter, he continued to do well at work, going in early and not missing a day. On a visit to the home, the PO met with a friend who “presented as a suitable and supportive collateral”.
May 31, 2018: The PO suggested that Mr. Windebank’s residential requirement should be modified to permit him to live with his girlfriend. The PO had been “impressed with Jason’s supervisory dynamics and his focus thus far”.
June 27, 2018: Ms. Theriault advised that her relationship with Mr. Windebank was going well. She had no concerns and was looking forward to residing with him on a full-time basis. He had not been abusive to her. She reported that Mr. Windebank was treating her very well and that she would not hesitate to contact police should that change. The PO confirmed Ms. Theriault’s description of their relationship when she saw them at a meeting.
July 27, 2018: This was the first indication that Mr. Windebank had failed to adhere to his curfew. He did not call in at night on his weekend pass and did not respond to repeated calls.
August 17, 2018: Mr. Windebank completed his federal sentence at his warrant expiry date.
Psychiatric Evidence
DSM-5 Diagnosis
63Based on his review of the records and his interview with Mr. Windebank, Dr. Gray concluded that there was no evidence to suggest that Mr. Windebank meets the criteria for a psychiatric diagnosis in the mood, anxiety, or psychotic categories of the DSM-5. Despite his history, Mr. Windebank does not have symptoms of post-traumatic stress disorder.
64Dr. Gray concluded that Mr. Windebank meets the diagnosis for stimulant (crystal methamphetamine) use disorder, moderate, in remission in a controlled environment. Historically, he has failed attempts to stay abstinent and has cravings. As a result of the use of crystal meth, he has suffered interpersonal problems. Impulsivity is worsened and he has dysfunctional anger expression.
65Although Mr. Windebank met the criteria for alcohol use disorder previously, this no longer appears to be a problem.
66Mr. Windebank meets the criteria for a diagnosis of antisocial personality disorder which Dr. Gray defines as follows at page 42 of his report:
… A personality disorder is a set of maladaptive character traits that begin in late adolescence and persist into adulthood. They cause difficulties in social and occupational functioning and are fixed and inflexible in nature. According to the DSM-5, antisocial personality disorder is a pervasive pattern of disregard for, and violation of, the rights of others occurring since age 15 as indicated by at least three of seven listed criteria: failure to conform to social norms with respect to lawful behaviours as indicated by repeatedly performing acts that are grounds for arrest; impulsivity; irresponsibility; irritability and aggressiveness; lack of empathy; deceitfulness; and reckless disregard for the safety of self or others. There also needs to be evidence of a diagnosis of conduct disorder prior to age 15.
67Dr. Gray describes that although only three criteria are necessary for the diagnosis of antisocial personality disorder, Mr. Windebank shows evidence of all seven criteria. He is unable to comply with social norms as evidenced by his criminal record. He is deceitful as exhibited by his fraud convictions, providing false names to police and manipulating his partners. He admits that impulsivity is a problem for him. His criminal convictions for assaultive behaviour demonstrate his aggressiveness. His convictions also show that he has a reckless disregard for the safety of himself and others. His failure to comply with court orders demonstrates that he is irresponsible. He has shown a lack of remorse by his conduct.
Risk Assessment
68The following is an overview of the risk assessment of Mr. Windebank.
July 29, 2015: Dr. Yokubynas (Warkworth Penitentiary)
69Mr. Windebank was subject to a risk assessment while serving his federal sentence for manslaughter. On the Personality Assessment Inventory, Dr. Yokubynas noted that Mr. Windebank “presented himself in a generally favourable light and without the typical shortcomings that most people are willing to endorse”. He was reluctant to discuss his faults. Mr. Windebank endorsed “distrust, alcohol abuse or dependence, drug abuse or dependence, history of antisocial behaviour, inflated self-esteem, heightened activity level and suspiciousness”. His “self-concept” indicated that he was “generally stable”. He was “confident” and “optimistic”. His results also showed that he “describes his temper as within the normal range, as fairly well-controlled and without apparent difficulty”.
70Mr. Windebank’s score on the Violence Risk Appraisal Guide, Revised (“VRAG-R”) (an actuarial measure of risk) put him in the highest of nine risk categories. His risk of violent recidivism was estimated at 76% within five years and 87% within 12 years. Dr. Yokubynas assessed Mr. Windebank’s risk as “high” for violent recidivism and in the “high end of moderate” for general recidivism. Both types of risk would be high if he is using substances.
May 24, 2017: Dr. Michelle Manuel (Dorchester Penitentiary)
71A risk assessment was conducted when Mr. Windebank was transferred to Dorchester Penitentiary while serving his penitentiary sentence. It was conducted by Dr. Michelle C. Manuel, a psychologist, and completed on May 24, 2017.
72Dr. Manuel advised that the following assessment measures were employed for the purpose of assessing Mr. Windebank’s current risk to re-offend, and she came to the following conclusions:
| Test | Definition Provided by Dr. Manuel | Conclusion |
|---|---|---|
| PCL-R (Psychopathy Checklist – Revised) | The PCL-R consists of items measuring the extent of antisocial behaviour and personality traits typical in psychopathy. It can assist in predicting an individual’s risk for general and violent recidivism. | Mr. Windebank shares several traits associated for general and violent recidivism. He shares several traits associated with psychopathy, mostly lifestyle and behavioural traits. She concluded, however, that Mr. Windebank fell below the diagnostic cutoff for psychopathy. His score was in the 44th percentile which means that an average of 44% of incarcerated offenders would score below him. This score corresponds to a risk in the moderate range for general and violent re-offending. |
| VRAG | The VRAG is an actuarial prediction guide that assists in assigning a probability of violent recidivism. It uses static indicators of risk and cannot be used to assess treatment gains. | Mr. Windebank’s scores on the VRAG place him in the seventh highest of nine possible ranges. This represents an estimation of his likelihood for violence recidivism at 55% within a seven-year period. This is on the low end of the high range for violent reoffending. |
| LS/CMI | This is a detailed survey of risk and needs factors. It is used for treatment planning and assigning levels of security and supervision. | Mr. Windebank’s risk/need score is in the high range. Of all incarcerated males, 59% of them have scores lower than Mr. Windebank on the LS/CMI. Offenders with similar scores showed a 45% probability of returning to custody within one year of release (either by committing new offences or for violating the conditions of their supervision). |
| SARA: (Spousal Risk Assessment) | SARA is a clinical checklist of risk factors. | Mr. Windebank presented with some risk factors in the areas of criminal history, psychological adjustment, and spousal assault history. His scores fell at the 32nd and 55th percentiles which means that 32-55% of domestic violence offenders scored at or below Mr. Windebank’s score. This suggests that he is at moderate risk of future violence towards an intimate partner or another person. |
73Dr. Manuel concluded the risk assessment portion of her report as follows:
When considering the combined influence of the results noted-above, Mr. Windebank’s overall risk for violent and general recidivism in the community is Moderate-High (high end of the moderate range). Of note, this is not an absolute result, but rather a comparative result. In other words, his risk is Moderate-High in comparison to other violent/general offenders. Alcohol consumption, negative associates, distorted/antisocial thinking, poor problem solving skills and acute negative emotions (frustration, anger jealousy and stress), combined with his impulsive nature, are the most dominant contributing factors to his offending behaviours.
74Dr. Manuel noted that Mr. Windebank completed his programming, participated in cultural activities, did not show signs of mental health issues, maintained institutional employment with positive reviews and described his attitude towards staff as satisfactory for the most part. That said, he had been involved in a few fights with other inmates, resulting in stays in segregation.
75Dr. Manuel observed that Mr. Windebank is able to recognize his risk factors and is aware of some strategies to decrease his risk of recidivism. He is motivated to live pro-socially. She recommended that he stay in a controlled living structure including employment, abstinence from substances, etc.
August 30, 2022: Dr. Gray
76Dr. Gray has conducted various risk assessment tests and has concluded that Mr. Windebank’s risk of committing a serious personal injury offence is high. The results are as follows:
| Test | Definition provided by Dr. Gray | Conclusion |
|---|---|---|
| PCL-R | Dr. Gray conducted a risk assessment using the Psychopathy Checklist-Revised (“PCL-R”). Dr. Gray explains that the PCL-R “was designed to compare the subject against the psychological construct of psychopathy which consists of interpersonal, affective, and antisocial lifestyle factors. Psychopathy has been shown to be associated with recidivism with violent or general offences and is a strong predictor of risk. Higher scores on the PCL-R also indicate poorer prognosis for treatment”. The traits that are involved in a diagnosis of psychopathy include, manipulativeness, lying, grandiosity, etc. | Mr. Windebank scored 24. This places Mr. Windebank in the 57.1 percentile and is above average for an incarcerated male offender. |
| VRAG-R | Mr. Windebank was assessed using the VRAG. This is an actuarial instrument used to assist in risk prediction of violent offenders through the identification of specific static or historical factors in the offender. | Mr. Windebank received a score of +34. This score places Mr. Windebank in the highest of 9 ascending risk categories with a “very high risk” of reoffence. His score is higher than 97% of those offenders in the study population assessed with this instrument. Dr. Gray reports that 76% of the offenders in the VRAG-R study population with similar scores reoffended within five years of their release. He stated that 90% of the offenders who had similar scores to Mr. Windebank reoffended with a violent offence within 15 years of their release from incarceration. |
77Dr. Gray concluded, as follows, with respect to Mr. Windebank’s risk of recidivism:
There are a large number of specific risk factors associated with risk of future violence in Mr. Windebank's case. These factors have been repeatedly identified in psychological assessments completed during his federal sentence, and mentioned by supervising probation officers.
These factors include a lengthy history of repeated violence, substance misuse, antisocial attitudes from a life spent almost entirely incarcerated and previously in group homes for troubled youth, poor relationship skills, impulsivity, a lack of responsivity to treatment interventions, personality disorder and in particular antisocial personality disorder, a tendency to associate with antisocial peers, and a pattern of deflecting blame for his violent offences leading to resistance to change.
I note also that while most of his more serious violent offences were against his domestic partners, there is a range of victim types in his violent offences. This includes acquaintances, cell-mates, strangers, police, and his father.
78Dr. Gray has observed as follows at page 48 of his report:
Reviewing Mr. Windebank's youth records, it appears that his current character traits, personality style leading to frequent conflict with the law have been present from a very early age. His youth records repeatedly refer to his impulsivity, tendency to violence, rule-breaking behaviour, and failure to accept responsibility for his actions.
These underlying factors underpinning his risk have been resistant to change over time and with treatment interventions.
In fairness to Mr. Windebank, he has not had the opportunity to complete treatment programs in the community due to how little time he spent out of custody in his adult life.
However, Mr. Windebank completed several intensive groups in federal custody that addressed major areas of risk, including substance abuse, anger, and family violence. Despite recent completion of those groups, as noted in his CSC documents, he went on to commit an unprovoked assault in 2015 that led to his transfer to another institution.
When he then had the opportunity to practice relationship skills from the violence prevention program with a new relationship upon release from federal custody, he committed three sets of violent offences against her.
While he was able to maintain a full-time job and sustain his relationship with the predicate victim for approximately two years, much of that time was while he was under close supervision from a parole officer and living in a supervised correctional facility. The violence began a few months after his period of supervision ended.
I note further that Mr. Windebank has not been able to remain in the community for a full year without committing another offence. This too suggests his violent, antisocial behaviour is quite entrenched.
Without close supervision and environmental measures to monitor his risk factors, Mr. Windebank would almost certainly reoffend within a short amount of time.
In summary, it is my opinion that Mr. Windebank lacks internal controls necessary to manage his risk of violent re-offense in the future on his own.
Prognosis and Treatment
79Dr. Gray has opined that there are many factors that suggest that Mr. Windebank is at high risk of violent reoffence. His ability to be managed in the community would be “extremely difficult”.
80The documentation filed, including his criminal record, shows that Mr. Windebank is unable to comply with court orders. He continually missed appointments with his probation officer. He did not commence nor complete several of the programs recommended during his probationary period. Sometimes he was not able to attend the programs due to his reincarceration for various offences, but he did not seem to take the recommendations seriously.
81Mr. Windebank has been described by various treatment providers and probation officers as manipulative, impulsive, aggressive, lacking remorse, and demonstrating a failure to accept responsibility for his actions. There was also an observation, that Mr. Windebank lacked motivation for treatment and that he did not make full use of the programs made available to him.
82Burnout is a factor to consider. Dr. Gray suggests that violent offenders begin to slow down their offending behaviour in their mid-40s and 50s. Since Mr. Windebank is 44 years of age, he is approaching the age where burnout is to be considered. While Dr. Gray opines that his risk of general and violent offending for such things as robberies may be reduced, he is not so hopeful with respect to domestic offences. He states that “domestic violence, may be less likely to be affected by age-related changes over time”.
83Other factors which would affect the ability to control Mr. Windebank in the community include that he has little in the way of support from family and friends. Many of his past offences were committed in the company of others, suggesting that he associates with negative peers. When involved in a domestic relationship, he has abused his partners.
84Dr. Gray opines that, “Overall, the prospect of successful management of Mr. Windebank’s high risk of violent reoffence is poor.”
The Legal Framework
An Overview of the Legislative Scheme
85Part XXIV of the Criminal Code provides the legal framework for designating and sentencing a dangerous and long-term offender.2 The purpose of the framework is to protect society from a “particularly dangerous subset of Dangerous Offenders who meet the statutory test for risk of violent re-offence”.3
86The Criminal Code sets out a two-stage process when considering a Dangerous Offender application. At the first stage, the court must determine whether the offender is properly designated a Dangerous Offender (the “designation stage”). At the second stage, the court must determine the appropriate sentence (the “penalty stage”).
The Designation Stage
87The onus is on the Crown to prove beyond a reasonable doubt that Mr. Windebank meets the definition of a Dangerous Offender.4 Section 753(1) provides the statutory requirements that must be met before a court can designate an offender as dangerous. The following provisions are relevant to this application:
753 (1) On application made under this Part after an assessment report is filed under subsection 752.1(2), 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, [or]
(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[.]
88The Crown must prove beyond a reasonable doubt that the predicate offences are serious personal injury offences. When relying on s. 753(1)(a)(i), the Crown must prove that the offender is a threat to the life, safety or physical or mental well-being of other persons based on evidence that establishes:
i. a pattern of repetitive behaviour, of which the predicate offence is a part;
ii. the pattern shows the offender’s failure to restrain his behaviour in the past; and
iii. the pattern shows a likelihood of causing death, injury or severe psychological damage to other persons through failure to restrain his behaviour in the future.
89When relying on s. 753(1)(a)(ii), the Crown must prove that the offender is a threat to the life, safety or physical or mental well-being of other persons based on evidence that establishes:
i. a pattern of persistent aggressive behaviour, of which the predicate offence is a part; and
ii. that the pattern shows a substantial degree of indifference by the offender respecting the reasonably foreseeable consequences of his behaviour.
90In Boutilier, the Supreme Court of Canada clarified that an offender cannot be designated a Dangerous Offender under s. 753 unless the sentencing judge concludes that he is a future threat to the safety of the community. The sentencing judge must engage in a prospective assessment of the offender’s risk.5 Prospective evidence, such as evidence of future treatment prospects, is therefore relevant at the designation stage.
91Specifically, in, Boutilier, the court held that compelling treatment prospects may preclude designation even where it might otherwise be appropriate. As Justice Côté wrote at para. 45 in Boutilier, “[O]ffenders will not be designated as dangerous if their treatment prospects are so compelling that the sentencing judge cannot conclude beyond a reasonable doubt that they present a high likelihood of harmful recidivism or that their violent pattern is intractable.”
92If the court is satisfied that the statutory criteria has been met at the designation stage, the designation of a Dangerous Offender follows. There is no discretion. However, there is discretion at the penalty stage.
The Penalty Stage
93Sections 753(4) and (4.1) deal with sentencing a Dangerous Offender once designated (the “penalty stage”). Those sections provide as follows:
(4) If the court finds an offender to be a Dangerous Offender, it shall
(a) impose a sentence of detention in a penitentiary for an indeterminate period;
(b) impose a sentence for the offence for which the offender has been convicted — which must be a minimum punishment of imprisonment for a term of two years — and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or
(c) impose a sentence for the offence for which the offender has been convicted.
(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.
94There is no presumption of an indeterminate sentence at the penalty stage, despite the wording of s. 753(4.1). Rather the judge must take a ladder approach, considering first whether a conventional sentence will adequately protect the public. If not, the court must consider a conventional sentence followed by an LTSO. Only if neither is appropriate, should a judge impose an indeterminate sentence.6
Other Relevant Principles in Sentencing a Dangerous Offender
95The Supreme Court of Canada outlined other important considerations at the penalty stage in Boutilier. First, prospective evidence, such as evidence of treatment prospects, is relevant at the penalty stage. The Court held at para. 45, “[E]ven where the treatment prospects are not compelling enough to affect the judge’s conclusion on dangerousness, they will still be relevant in choosing the sentence required to adequately protect the public”.
96Second, all of the principles of sentencing — not only the objective of public protection — are relevant at the penalty stage, including, “an offender’s moral culpability, the seriousness of the offence, mitigating factors, and principles developed for Indigenous offenders”.7
97Based on these legal principles, I will now turn to my analysis.
Analysis: The Designation Stage
98Crown counsel submits that Mr. Windebank meets the criteria set out in both s. 753(1)(a)(i) and s. 753(1)(a)(ii) to be designated a Dangerous Offender. I agree. I find that the Crown has proven the following beyond a reasonable doubt:
a. The predicate offences are serious personal injury offences, as defined in s. 752; and
b. Mr. Windebank is a threat to the life, safety, or physical or mental well-being of others because of a pattern of repetitive behaviour that demonstrates,
i. his failure to restrain his behaviour, and
ii. a likelihood that he will cause death or injury or inflict severe psychological damage to others pursuant to s. 753(1)(a)(i); and
c. Mr. Windebank is also a threat to the life, safety, or physical or mental well-being of others because of, a pattern of persistent aggressive behaviour that shows a substantial degree of indifference about the reasonably foreseeable consequences to others of his behaviour pursuant to s. 753(1)(a)(ii).
a. Serious Personal Injury Offence
99Both counsel agree (as do I) that the predicate offences are serious personal injury offences. Mr. Windebank has been convicted of assault causing bodily harm, choking and forcible confinement. Each of these offences may attract a sentence of imprisonment of 10 years, or more.
100By their very nature, the offences for which Mr. Windebank has been convicted are offences that involved the use of violence against Ms. Theriault committed on two separate days: April 13, 2020, and August 18, 2021 as I have described above.
b. Pattern of “Repetitive or Persistent Aggressive Behaviour”
101The next principle considers whether Mr. Windebank constitutes a threat to the life, safety or physical or mental well-being of other persons, as disclosed by his pattern of repetitive behaviour (s. 753(1)(a)(i)) or based on his pattern of persistent aggressive behaviour (s. 753(1)(a)(ii)).
Pattern of Repetitive Behaviour: 753(1)(a)(i) of the Criminal Code
102Section 753(1)(a)(i) of the Criminal Code and the supporting case law states that it must be established to the satisfaction of the court that the predicate offence is not an isolated occurrence, but part of a pattern of repetitive behaviour by the offender which he failed to control, and that the unrestrained behaviour has a “likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons…”.8
103Guidance for the definition of the phrase “a pattern of repetitive behaviour” may be found in R. v. Hogg.9 The Court of Appeal for Ontario found at paras. 40 and 43, as follows:
40 To summarize, the pattern of repetitive behaviour that includes the predicate offence has to 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. This will ensure that the level of gravity of the behaviour is the same, so that the concern raised by Marshall J.A. [in R. v. Newman10] – that the last straw could be a much more minor infraction – could not result in a Dangerous Offender designation. However, the offences need not be the same in every detail; that would unduly restrict the application of the section.
43 Although the pattern differed in the detail of how the offences were carried out, the predicate and past offences still represented a pattern of repetitive violent behaviour that made it likely that the appellant would continue to commit similar acts of violence in order to have sexual gratification in the future. …
[Citation and footnote added]
104More recently in the case of R. v. Tynes,11 Tulloch J.A. (as he then was) held that the pattern does not arise simply from the number of offences committed. It is also rooted in the elements of similarity of the offender’s conduct. Similarities can arise from the types of offences committed but also in the degree of violence or aggression threatened or inflicted.
105Mr. Windebank’s conduct is accurately characterized as a “pattern of repetitive behaviour that has demonstrated a failure on his part to restrain his behavior”. Mr. Windebank has 126 entries on his criminal record prior to the convictions before me. Some of the entries in Mr. Windebank’s criminal record are more relevant than others to demonstrate a pattern of violent behaviour that Mr. Windebank has failed to restrain.
106The pattern of repetitive behaviour is well demonstrated in the violence that Mr. Windebank has exacted on his domestic partners and outlined at para. 24 above. When Mr. Windebank was released from the penitentiary following a conviction for manslaughter, he assaulted Ms. Theriault, giving rise to three sets of convictions on three different occasions. Those incidents form part of a pattern regarding his domestic partners. Despite participating in various programs in the penitentiary, Mr. Windebank failed to restrain his conduct and impulses.
107After reviewing Mr. Windebank’s pattern of assaultive behaviour towards domestic partners, Dr. Gray concluded at pages 46 and 47 of his report:
… all of these offences share the same motivating factors including low frustration tolerance, a desire to control the victim, and use of violence to intimidate. There is also a similarity in terms of his not accepting responsibility and blaming the victim and the previous victim, Ms. Chapman.
Most of the offences above were committed while he was under the influence of substance. This substance misuse exacerbates his underlying high level of impulsivity and poor coping mechanisms leading him to be less able to control his violent impulses. Substance misuse continues to be a problem area for him, despite extensive programming to address the issue, and therefore there is a high likelihood that he will be unable to restrain his violent impulses in the future.12
108There are several other convictions for violent offences referred to in Appendix “A” and referred to in para. 25 above. They are not against domestic partners. That said, they share the same motivating factors such as violent impulses and substance abuse. In many cases, Mr. Windebank responded to routine issues (i.e., a stranger not giving him a cigarette, being asked to leave a premise) with violence in a disproportionate manner. This began as a child and has continued for over 30 years, well into adulthood.
109While there are differences in the details of the offences, they do not change the nature of Mr. Windebank’s conduct. Mr. Windebank uses violence to intimidate his victims, particularly when he perceives that they are not acting in accordance with his wishes.
110The similarities of Mr. Windebank’s violent conduct establishes the requisite pattern of repetitive behaviour that demonstrates Mr. Windebank’s failure to restrain his behaviour and will necessarily lead to a likelihood of re-offence in the future.13
Persistent and Aggressive Behaviour: s. 753(1)(a)(ii) of the Criminal Code
111Section 753(1)(a)(ii) of the Criminal Code requires that Crown Counsel demonstrate a pattern of persistent and aggressive behavior with a substantial degree of indifference respecting the reasonably foreseeable consequences of his behaviour to others. Section 753(1)(a)(ii) is intended to deal with an individual who is callous and remorseless.
112A review of the offender’s behavior is not limited to the time of the offence. In addition, the attitude of the offender may be examined more broadly to identify the “truly evil personality type who has no compassion for others at any time”.14 Does Mr. Windebank care about the likely consequences of his actions? Or is he indifferent to the damage his conduct may cause?15
113In Tynes, Tulloch J.A. explained that the “pattern of repetitive behaviour” does not require similarities between the predicate and past offences. Rather, the past behaviour must be “persistent” and coupled with indifference and intractability”.16
114There is a wealth of evidence of Mr. Windebank’s indifference to the foreseeable consequences to others of his behaviour documented in the numerous reports filed in this proceeding. He blames others for his conduct – it is always someone else’s fault. Rarely, if ever, does he take responsibility for his own actions. He shows little remorse, although when addressing the court during this proceeding, he deeply apologized to the victim (Ms. Theriault) and the court. He begged the court for forgiveness.
115Further, Dr. Gray has opined that Mr. Windebank has displayed a “reckless disregard for the safety of self and others”. Dr. Gray also concluded that Mr. Windebank minimizes the impact of his violent offences on his victims. He blames others for his conduct. This is particularly so with Mr. Windebank’s domestic partners.
116I am satisfied that, when viewed as a whole, Mr. Windebank has demonstrated a pattern of persistent aggressive behaviour and a substantial degree of indifference respecting the reasonably foreseeable consequences to other persons.
117As such, I find the Crown has established the necessary patterns of behaviour required by ss. 753(1)(a)(i) and (ii) of the Criminal Code.
c. Is there a high likelihood of recidivism?
118Section 753(1)(a)(i) also requires that the Crown prove a high likelihood that Mr. Windebank will cause death or injury or inflict severe psychological damage to others through a failure to retrain his behaviour. The record supports such a finding. Various doctors have opined on Mr. Windebank’s risk of reoffending.
119In 2015, Dr. Youbynas assessed Mr. Windebank as being at a high risk of violent recidivism and at the high end of a moderate risk for general recidivism. In 2017, Dr. Manual assessed Mr. Windebank and concluded he was a moderate risk of future violence towards an intimate partner or another person. He was at the moderate-high risk of future violent and general recidivism.
120Further, Dr. Gray conducted an assessment of Mr. Windebank for the purpose of this hearing. Using the “VRAG”, Dr. Gray concluded that Mr. Windebank was at a “very high risk of violent reoffending”. Mr. Windebank was placed in the highest of the nine risk bins and his score placed him higher than 97% of those in the study population. Of those who received a similar score to Mr. Windebank, 76% of them reoffended within five years of their release, and 90% of them re-offended with a violent offence within 15 years of their release.
121While I am not bound by the opinions of the experts, I have considered their evidence. I have also considered Mr. Windebank’s history of committing violent offences on various persons, most importantly his domestic partners. It makes sense that the best predictor of future behaviour is rooted in the past behaviour of the offender.
122Based on Mr. Windebank’s history, including his past pattern of violent criminal behaviour, his poor response to community supervision (i.e., parole or probation), his conduct within the institutions and the opinions of the doctors, I am satisfied that Mr. Windebank presents a likelihood of being a danger to society in the future and that there is a high likelihood of recidivism.
d. Is the violent conduct intractable?
123At this stage of the analysis, the court must consider not only whether Mr. Windebank poses a high risk of harmful recidivism, but also whether Mr. Windebank’s conduct is intractable. “Intractable” conduct is conduct that Mr. Windebank is unable to surmount.17 (It is this criteria that counsel for Mr. Windebank submits has not been proven beyond a reasonable doubt.)
124Corrick J. addressed the issue of intractability in the case of R. v. Inacio at para. 172.18 I agree with her analysis which is as follows:
Justice Greene of the Ontario Court of Justice recently considered this issue in R. v. Broadfoot 2018 ONCJ 215. She concluded that intractability at the designation stage relates to whether the conduct can be treated. If the court finds that the conduct is intractable, the question at the penalty stage is how to manage that conduct: Broadfoot, at para. 77. Justice Rutherford adopted this analysis in the case of R. v. Hoshal 2018 ONCJ 497. The analysis makes sense to me, and I adopt it.19
125Defence counsel submits that Mr. Windebank’s conduct can be treated with significant counseling in the penitentiary and, if released, on a 10-year LTSO. The programs at the penitentiary have undergone a change since Mr. Windebank was incarcerated there. A holistic program has been introduced. Offenders can obtain treatment quickly and in programs that run at the same time so that all their needs are addressed. Mr. Windebank could participate in one-on-one counseling to address his issues and history shows that he did well when living at the Keele CCC upon his release. He could participate in further programming and be monitored closely during the LTSO.
126I accept that Mr. Windebank appears to have done well in some programs while incarcerated, and he did do well when released from the penitentiary and living in the Keele CCC. He was employed for 1.5 years. He attended his meetings with the probation officers. However, without supervision, Mr. Windebank resorted to his violent tendencies, abusing Ms. Theriault on three occasions, resulting in three separate sets of convictions.
127Mr. Windebank‘s probation officers referred him to programs for anger management, spousal assault and addiction. He never completed any of the programs in the community because he missed intake appointments, or he was incarcerated. However, he was in such a position in July 2019 when he could have participated in a program.
128When Mr. Windebank was on probation for the first offence regarding Ms. Theriault in July 2019, he failed to complete the Partner Assault Response program directed by his probation officer. Two appointments that had been set for his attendance failed. Attempts were made to schedule a third time. All attempts were unsuccessful. Mr. Windebank advises that he was not able to participate in the program because the pandemic intervened.
129I also agree that Mr. Windebank demonstrated some success following his most recent period of incarceration awaiting disposition of this matter. He participated in the programs offered (some of them more than once), most of which were completed within months of his Dangerous Offender proceeding. He finished his high school education and is enrolled in college courses. He should be commended for those accomplishments.
130While I acknowledge that Mr. Windebank has participated in further programs since his re-incarceration, completed his high school education and is enrolled in college courses, there is nothing in Mr. Windebank’s history to show that he will be able to control his impulsivity and violent behaviour in the future when in the community. He was unable to do so even within the confines of the prison as the records of his misconducts demonstrate. This is particularly so when considered in the context of his substance abuse.
131Mr. Windebank has acknowledged that he was using narcotics at the time he committed the predicate offences. He explained that he was dealing with the tragic loss of his brother when he relapsed for the first time since 2010. He had been awake for 14 days and he was in the state of a “drug induced psychosis”. He explained that despite having received substance abuse programming, he has no control. He agrees that he was not in his right mind at the time but downplayed the effect of the narcotics on his behaviour. He explained that he needed to use crystal methamphetamine to protect himself. Further, he expressed to Dr. Gray that the use of narcotics did not have any detrimental effect on his behaviour or thinking. Mr. Windebank’s explanations for his drug use show he has little insight into his violent behaviour when impaired.
132Further, Dr. Gray observed that Mr. Windebank has been resistant to change over time, even with treatment interventions. He lacks the controls to manage his risk of violent behaviour resulting in re-offending. These factors have been present since an early age. He has been in conflict with his family and the law for over 30 years. Comments in his school records from a young age demonstrate that his impulsivity has not waned and that he resorts to violence to resolve his perceived conflicts. He has little insight into his offending nature. He remains a high risk to re-offend.
133Mr. Windebank’s recidivism following his release from the penitentiary, his misguided explanations for his drug use, his lack of insight, the clinical findings and the lack of pro-social influences in the community do not bode well for his amenability to treatment. As I have said previously, his history is a good predictor of the future.
134I am satisfied that Mr. Windebank’s behaviour and therefore the risk that he poses to others is not likely to change. I have concluded that his behaviour is not something he is able to surmount. As such, I am satisfied beyond a reasonable doubt that Mr. Windebank’s behaviour is intractable.
Conclusion on the Designation Stage
135I am satisfied, based on all of the evidence, that the Crown has proven beyond a reasonable doubt that Mr. Windebank meets the definition of a Dangerous Offender contained in both ss. 753(1)(a)(i) and (ii) of the Criminal Code. I therefore declare him to be a Dangerous Offender.
Analysis: The Penalty Stage
136Section 753(4) of the Criminal Code gives the court discretion as to the sentence to impose on Mr. Windebank, whom I have designated a Dangerous Offender.20 Pursuant to s. 753(4.1), a court “shall” impose an indeterminate sentence unless it is satisfied that there is a reasonable expectation that a lesser sentence under subparagraph (4) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. The penalty stage focusses on imposing the appropriate sentence to manage the established threat.21
137I will now consider these principles in the context of this application and explain why I have concluded that an indeterminate sentence should be imposed.
Is a determinate sentence appropriate?
138Neither counsel submits that a determinate sentence is appropriate. I agree. Accordingly, it is not necessary for me to deal with this option in sentencing Mr. Windebank.
Is a determinate sentence followed by an LTSO appropriate?
139In determining the fit sentence, having declared Mr. Windebank a Dangerous Offender, I must consider whether a determinate sentence followed by an LTSO is appropriate. Crown counsel does not have to prove beyond a reasonable doubt that there is no reasonable possibility of eventual control of the risk posed by the offender to the community. If the sentencing judge is uncertain whether there is a reasonable expectation that a lesser measure will adequately protect the public, then the sentencing judge should exercise discretion and impose an indeterminate sentence.22
140Our Court of Appeal has commented on the considerations for imposing an LTSO:
Resort to the long-term offender regime is appropriate only where there is evidence that an offender can be meaningfully treated, so that the offender's risk to the public can be controlled at an acceptable level, within a determinate period of time. A mere hope that treatment will be successful, or simple optimism that there is a reasonable possibility of eventual control of the offender's risk in the community, is insufficient to ground a determinate sentence: R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357.23 [Emphasis added]
141Counsel for Mr. Windebank submits that absent significant intervention, Mr. Windebank poses a high likelihood of harmful recidivism. She submits, however, that there is a realistic possibility that Mr. Windebank’s violent behaviour can be controlled in the community with the imposition of a determinate sentence of three years followed by an LTSO for 10 years.
142Counsel submits that the treatment of Mr. Windebank’s antisocial personality disorder and stimulant use disorder could be treated through “therapy, counselling and the development of skills to alter behaviour”, including one-on-one counseling. He could receive intense training in the penitentiary because of the holistic approach to treatment (not available when Mr. Windebank was in the penitentiary previously) that is meant to target multiple risk factors and without delay. This treatment would be followed by a maintenance program upon his release. He could live in a CCC where he would be monitored throughout his transition to the community. He could engage in other treatment and his abstinence could be closely monitored by urinalysis, etc.
143Counsel for Mr. Windebank submits that Mr. Windebank is “treatment ready”. He is in remission and Dr. Gray opined that this puts Mr. Windebank in a good position to benefit from treatment. However, his history would not support such a conclusion:
a. As his criminal record demonstrates, Mr. Windebank has had difficulties with assaultive behaviour. Mr. Windebank’s criminal record also includes several convictions for his inability to follow court orders. Such a criminal history demonstrates a limited forecast for success in the future. The institutional misconducts demonstrate that Mr. Windebank is unable to suppress his violent behaviour, even in a controlled environment.
b. His family background demonstrates that Mr. Windebank would have very little family support in the community if released.
c. His relationship history demonstrates that Mr. Windebank has very little support in the community. He controls his partners with violence, despite programming.
d. Although he is improving his education and advises he has some job offers, if released, Mr. Windebank’s educational and employment history (in particular) shows that Mr. Windebank has little education or employment experience to provide a routine or income if released into the community.
e. Although there appear to be some periods where there is evidence that Mr. Windebank can live a pro-social life, Mr. Windebank’s history of non-compliance provides little comfort that he will be able to comply with the terms of an LTSO.
f. While there may be small signs of optimism, Mr. Windebank continues to pose a high risk of reoffence in the future. Further, it remains uncertain as to whether Mr. Windebank can be managed in the community for the reasons set out below.
144I have evaluated Mr. Windebank’s treatment options and the possibility that his risk could someday be managed in the community to an acceptable level by a determinate period of detention followed by an LTSO for 10 years. Put simply, there is no plan proposed for Mr. Windebank that would do so. In coming to this conclusion, I remind myself that the overriding purpose of the dangerous and long-term offender regime is the protection of the public.24
145There are other pitfalls in the plan proposed by counsel for Mr. Windebank. One-on-one counseling is not available according to Ms. Phillips. Further, Dr. Gray has made recommendations for suggested terms of release (also submitted by counsel for Mr. Windebank). Set out below are the suggested terms of release and the issues (i.e., problems) with those terms:
| Proposed Term | Problems |
|---|---|
| That Mr. Windebank reside in a CCC. | Mr. Windebank appears to have done well during his stay at the CCC in the past. He was employed and maintained a stable relationship for some time with Ms. Theriault. He attended most, if not all, of his appointments. The benefits, however, were short-lived. Unfortunately, he reoffended within a year. Further, offenders do not normally reside in a CCC for longer than a year, although Ms. Phillips testified that an application can be made for approval to remain in the CCC at the end of each year. That said, there is no guarantee that it will be extended. |
| That Mr. Windebank report all relationships. | A requirement that he disclose his romantic relationships has proven problematic in the past. After being released on parole, he was returned to federal custody because he lied about the nature of his then relationship. Close monitoring by his probation officer has not assisted Mr. Windebank in remaining crime free. Both Ms. Chapman and Ms. Theriault were contacted by the POs to monitor any potential for violence. Both assured the PO that things were going well, and yet, Mr. Windebank assaulted them thereafter. Both appeared fearful in reporting the crimes and later denied that they had been assaulted. As such, I am not certain that reporting all relationships will prevent any risk to his partners. Regular checks by a PO with the partner or of the status of Mr. Windebank’s relationship with her would not likely assist. Mr. Windebank’s volatility is impulsive and as such, there may be no forewarning of his violence to his victim such that the PO could be alerted in time to prevent another crime. |
| Mr. Windebank should be prohibited from using substances for non-medical reasons. | Despite efforts in the past, Mr. Windebank has been unable to restrain himself from the use of narcotics. In fact, he has justified his use suggesting that they have a positive effect (i.e., he was a much more effective cleaner when using crystal meth). |
| Mr. Windebank should engage in programming for things such as partner abuse, anger management and substance abuse. | Further programming is not likely to control Mr. Windebank. While in the penitentiary, Mr. Windebank participated in programs for substance abuse, anger management and domestic violence. Notwithstanding the completion of these programs, he engaged in further acts of violence within and outside the institution. The evidence at trial demonstrated that Mr. Windebank returned to the use of illegal narcotics. Further, he minimized the effect of the narcotics on his conduct and minimized his role in the offences (i.e., suggesting he acted in self defence during the incidents with Ms. Theriault). The conclusion to be drawn is that Mr. Windebank’s conduct has not been curtailed by the programs he attended. |
| Mr. Windebank should actively seek employment. | Unfortunately, Mr. Windebank has only been employed in the community for 1.5 years. As such, he does not have a track record to suggest that he could be employed and maintain that employment to reduce his free time. That said, Mr. Windebank advises that a job is waiting upon his release. |
146I agree with the opinion of Dr. Gray. I am not satisfied that there is a reasonable expectation that a lesser sentence (i.e., a determinate sentence followed by an LTSO) will adequately protect the public against the commission of a serious personal injury offence. I accept that there is, theoretically, always reason to be hopeful for the future. However, based on the evidence before me, I am not satisfied that such hope is anything more than speculative. A mere hope of control is simply not enough.25 An indeterminate sentence in prison is warranted because it will serve the purpose of protecting the public.26
147While the sentence is indeterminate, it need not be permanent. I urge the staff at the penitentiary to enroll Mr. Windebank in the appropriate programs so that there can be a meaningful application of s. 761(1) of the Criminal Code.27 Section 761(1) provides a review of the conditions, history and circumstances of Mr. Windebank for the purpose of determining whether he should be granted parole.
The Sentence Imposed
148Mr. Windebank is designated a Dangerous Offender. He will serve an indeterminate sentence for the following offences:
Count 1: Assault causing bodily harm, contrary to s. 267(b);
Count 2: Assault causing bodily harm by choking, contrary to s. 267(c);
Count 5: Assault causing bodily harm, contrary to s. 267(b);
Count 7: Forcible confinement, contrary to s. 279(2).
149Mr. Windebank has served the equivalent of 51 months of pre-sentence custody. I sentence him as follows on the remaining offences:
| Count | Offence | Sentence |
|---|---|---|
| 3 | Assault, contrary to s. 266 | 24 months, time served plus 1 day. |
| 6 | Utter death threats, contrary to s. 264.1(1)(a) | 12 months, time served plus 1 day, consecutive to Count 3. |
| 8 | Mischief to property (under $5,000), contrary to s. 430(4) | 6 months, time served plus 1 day consecutive to Counts 3 and 6. |
| 9 | Causing unnecessary suffering to an animal (a dog), contrary to s. 445.1(a) | 6 months, time served plus 1 day consecutive to Counts 3, 6 and 8. |
150I make the following ancillary orders:
a. Mr. Windebank has been convicted of a primary designated offence. He shall provide samples of his bodily substances for purpose of forensic DNA analysis.
b. Mr. Windebank is prohibited from possessing any weapons, ammunition and explosives set out in s. 109(3) of the Criminal Code for life.
c. Pursuant to 743.21 of the Criminal Code, Mr. Windebank is prohibited from communicating directly or indirectly with Ms. Theriault, the victim of the predicate offences.
d. Pursuant to s. 760 of the Criminal Code, a copy of all reports and testimony given by all witnesses on this application, together with a copy of these reasons, the reasons for judgment for the predicate offences, and a transcript of the trials shall be forwarded to Correctional Service of Canada.
Kelly J.
Released: September 11, 2023
Appendix “A”
R. v. Windebank
Ruling Re: Dangerous Offender Designation and Sentencing
CPIC Entries
| No. | Date | Offence | Sentence |
|---|---|---|---|
| 1 | 1992-11-05 | Assault. | 1 year probation and 30 hours of community service. |
| 2 | Mischief Under $5,000. | As above, concurrent. | |
| 3 | 1993-04-14 | Assault. | 30 days in secure custody and 1 year of probation. |
| 4 | Possession of property under $5,000. | 30 days consecutive. | |
| 5 | Fail to comply. | 30 days consecutive. | |
| 6 | 1993-06-15 | Sexual assault. | 9 months secure custody and 2 years of probation. |
| 7 | Fail to comply. | As above, concurrent. | |
| 8 | 1994-06-20 | Fail to comply with probation. | 12 days secure custody. |
| 9 | 1994-10-05 | Theft under $1,000. | Time served (77 days) in addition to 6 months open custody and probation for 6 months. |
| 10 | Fail to attend court. | As above, concurrent. | |
| 11 | 1995-12-29 | Uttering threats. | Time served (25 days) in addition to 1 day secure custody and probation for 12 months. |
| 12 | 1996-03-26 | Attempt to obstruct peace officer. | 30 days open custody. |
| 13 | Fail to attend court. | As above, concurrent. | |
| 14 | Theft under $5,000. | As above, concurrent. | |
| 15 | 1996-04-04 | Robbery. | Time served (25 days) in addition to 1 day secure custody and probation for 12 months. |
| 16 | Possession of property obtained by crime. | As above, concurrent. | |
| 17 | 1996-08-06 | Break and enter. | 45 days secure custody and 1 year of probation. |
| 18 | 1996-09-12 | Robbery. | Time served (5 days) in addition to 60 days open custody and probation for 18 months. |
| 19 | Assault peace officer. | As above, concurrent. | |
| 20 | 1997-01-15 | Fail to comply with disposition. | Time served (1 day) in addition to 1 day secure custody. |
| 21 | Obstruct peace officer. | 1 day open custody concurrent. | |
| 22 | 1997-06-03 | Robbery. | 60 days in custody in addition to 4 months (time served). |
| 23 | 1998-02-17 | Theft under $5,000. | 30 days in custody. |
| 24 | 1998-08-03 | Attempt theft over $5,000. | 2 days in custody in addiction to 6 days, time served. |
| 25 | 1998-08-24 | Obstruct peace officer. | 30 days in addition to 47 days, time served. |
| 26 | Fail to attend court. | As above, consecutive. | |
| 27 | Fail to appear. | As above, consecutive. | |
| 28 | Theft under $5,000. | As above, consecutive. | |
| 29 | 1998-12-08 | Mischief under $5,000. | 4 months in addition to 63 days, time served. |
| 30 | Assault with a weapon. | 4 months concurrent. | |
| 31 | Possession of break in instruments. | 4 months concurrent. | |
| 32 | Assault a peace officer. | 4 months concurrent. | |
| 33 | 1999-08-13 | Theft over. | 90 days in addition to 2 years of probation. |
| 34 | Theft over. | As above, concurrent. | |
| 35 | Driving while ability impaired. | 90 days in custody in addition to 2 years’ probation and a 2-year driving prohibition. | |
| 36 | Fail or refuse to provide a breath sample. | ||
| 37 | 1999-11-30 | Uttering forged document. | 60 days in custody and probation for 12 months. |
| 38 | 2000-01-20 | Assault. | 60 days intermittent and probation for 3 years. |
| 39 | 2000-06-13 | Uttering threats. | Suspended sentence and probation for 12 months. |
| 40 | 2000-08-03 | Theft under $5,000. | 40 days in addition to 7 days, time served. |
| 41 | Possession of a Schedule II substance. | 40 days concurrent. | |
| 42 | 2000-10-30 | Assault. | 30 days in addition to 28 days, time served. |
| 43 | Mischief under $5,000. | As above, concurrent. | |
| 44 | 2000-12-20 | Assault. | 30 days in addition to 25 days, time served. |
| 45 | Fail to comply with probation. | As above, concurrent. | |
| 46 | 2001-03-07 | Obstruct peace officer. | 15 days in addition to 37 days, time served. |
| 47 | Fail to attend court. | As above, concurrent. | |
| 48 | 2001-03-27 | Assault. | 6 months conditional sentence order in addition to 5 days, time served. |
| 49 | Possession of a Schedule II substance. | As above, concurrent. | |
| 50 | 2001-04-20 | Theft under $5,000. | 30 days in addition to 1 month, time served. |
| 51 | Obstruct peace officer. | As above, concurrent. | |
| 52 | 2001-06-08 | Breach of a conditional sentence order. | Order terminated. |
| 53 | 2001-06-27 | Attempt theft under $5,000. | 30 days in addition to 15 days, time served. |
| 54 | Uttering threats. | As above, concurrent. | |
| 55 | 2001-04-20 | Theft under $5,000. | 30 days in addition to 1 month, time served. |
| 56 | Obstruct peace officer. | As above, concurrent. | |
| 57 | 2001-06-08 | Breach of a conditional sentence order. | Order terminated. |
| 58 | 2001-06-27 | Attempt theft under $5,000. | 30 days in addition to 15 days, time served. |
| 59 | Uttering threats. | As above, concurrent. | |
| 60 | 2002-03-12 | Possession of property obtained by crime under $5,000. | 1 month. |
| 61 | Fail to stop at the scene of an accident. | 1 month consecutive. | |
| 62 | 2002-07-25 | Aggravated assault. | Suspended sentence with probation for 2 years in addition to 5 months, time served. Mandatory s. 109 order. |
| 63 | Assault with a weapon. | As above, concurrent. | |
| 64 | 2002-08-12 | Dangerous operation of a motor vehicle. | Suspended sentence and probation for 12 months in addition to 244 days, time served. |
| 65 | Possession of property obtained by crime. | As above, concurrent. | |
| 66 | Assault peace officer. | As above, concurrent. | |
| 67 | 2002-10-28 | Attempt theft over $5,000. | 5 days in addition to 42 days, time served. |
| 68 | Attempt theft under $5,000. | As above, concurrent. | |
| 69 | 2002-11-20 | Theft under $5,000. | 30 days in addition to 16 days, time served and probation for 1 year. |
| 70 | Possession of a Schedule I substance. | 15 days consecutive. | |
| 71 | 2003-09-02 | Theft under $5,000. | 20 days in addition to 18 days, time served. |
| 72 | Fraudulently obtaining food or lodging. | $25 fine. | |
| 73 | Fail to comply with probation. | $25 fine. | |
| 74 | 2003-09-09 | Possession of a weapon. | 30 days in addition to 7 days, time served. |
| 75 | Fail to comply with probation. | As above, concurrent. | |
| 76 | 2003-11-12 | Uttering threats. | 11 days in custody in addition to 39 days, time served. |
| 77 | 2004-04-14 | Break, enter and theft. | $10 fine in addition to 10 months, time served. |
| 78 | 2005-01-18 | Assault. | Suspended sentence and probation for 18 months in addition to 3 months, time served. |
| 79 | 2005-07-06 | Assault. | 30 days and probation for 3 years in addition to 64 days, time served. |
| 80 | Uttering threats. | As above, concurrent. | |
| 81 | Assault a peace officer. | As above, concurrent. | |
| 82 | Fail to comply with a probation order. | As above, concurrent. | |
| 83 | 2005-11-28 | Assault. | Suspended sentence and probation for 6 months. |
| 84 | 2006-03-02 | Theft under $5,000. | 1 day in addition to 18 days, time served. |
| 85 | 2006-04-10 | Assault. | 52 days intermittent in addition to 49 days, time served and probation for 18 months. |
| 86 | Fail to comply with probation. | As above, concurrent. | |
| 87 | 2006-06-28 | Indecent act. | 15 days in addition to 49 days, time served and probation for 18 months. |
| 88 | Assault with intent to resist arrest. | As above, concurrent. | |
| 89 | Fail to comply with probation order. | As above, concurrent. | |
| 90 | 2006-09-07 | Assault. | 5 months in addition to 55 days, time served. |
| 91 | 2006-10-13 | Fail to attend court. | 21 days |
| 92 | 2006-11-01 | Fail to comply with probation order. | 1 day in addition to 9 days, time served. |
| 93 | 2007-04-04 | Assault. | 1 month in addition to 18 days, time served. |
| 94 | Assault. | 1 month consecutive. | |
| 95 | Fail to comply with probation order. | 3 months. Prohibition order pursuant to s. 110 for 10 years. | |
| 96 | Fail to comply with probation order. | As above, consecutive. | |
| 97 | 2007-08-30 | Theft under $5,000. | 1 day in addition to 8 days, time served. |
| 98 | 2007-10-16 | Assault peace officer. | 8 days and probation for 2 years in addition to 46 days, time served and discretionary s. 110 prohibition for 10 years. |
| 99 | Mischief under $5,000. | As above, concurrent. | |
| 100 | Possession of property obtained by crime under $5,000. | As above, concurrent. | |
| 101 | 2007-10-24 | Possession of a Schedule I substance. | 4 days, time served. |
| 102 | 2008-03-05 | Assault causing bodily harm. | 90 days in addition to 96 days, time served and probation for 3 years. Mandatory prohibition order imposed. |
| 103 | 2008-05-05 | Assault with a weapon. | 1 day consecutive to the sentence being served and probation for 1 year. |
| 104 | Fail to comply with probation. | As above, concurrent. | |
| 105 | 2008-05-23 | Robbery. | 1 day in addition to 15 days, time served. |
| 106 | Obstruct peace officer. | As above, concurrent. | |
| 107 | Mischief under $5,000. | As above, concurrent. | |
| 108 | 2008-07-15 | Traffic in a Schedule I substance. | As above, concurrent. |
| 109 | 2009-04-15 | Assault. | 1 day and discretionary weapons prohibition. |
| 110 | Theft under $5,000. | As above, concurrent. | |
| 111 | Mischief under $5,000. | As above, concurrent. | |
| 112 | 2009-04-28 | Fail to comply with probation. | 21 days in addition to 2 days, time served. |
| 113 | 2009-07-02 | Assault. | 15 days and probation for 12 months in addition to 44 days, time served. |
| 114 | Assault a peace officer. | As above, concurrent. | |
| 115 | Mischief under $5,000. | As above, concurrent. | |
| 116 | 2009-07-23 | Theft under $5,000. | 15 days in addition to 7 days, time served. |
| 117 | Assault with intent to resist arrest. | As above, concurrent. | |
| 118 | 2009-09-24 | Theft under $5,000. | 1 day in addition to 22 days, time served. |
| 119 | 2009-10-23 | Criminal harassment. | 15 days and probation for 18 months in addition to 14 days, time served. |
| 120 | Fail to comply with probation. | As above, concurrent. | |
| 121 | 2010-05-11 | Theft under $5,000. | Suspended sentence and probation for 1 year in addition to 2 days, time served. |
| 122 | 2010-05-19 | Fail to comply with probation. | 10 days in addition to 2 days, time served. |
| 123 | 2010-06-29 | Common nuisance. | 210 days. |
| 124 | Assault with intent to resist arrest. | 60 days concurrent in addition to 26 days, time served. Probation for 2 years and a discretionary prohibition order for 10 years. | |
| 125 | 2012-07-03 | Manslaughter. | 6 years, 1.5 months in addition to 10 months, 18 days, time served. Mandatory 109 order. |
| 126 | 2019-07-03 | Assault. | Suspended sentence and probation for 12 months in addition to 4.5 days, time served. Weapons prohibition for 2 years. |
| 127 | 2022-03-10 | Assault causing bodily harm. | |
| 128 | 2022-03-10 | Assault causing bodily harm by choking. | |
| 129 | 2022-03-10 | Assault. | |
| 130 | 2022-03-10 | Assault causing bodily harm. | |
| 131 | 2022-03-10 | Utter death threats. | |
| 132 | 2022-03-10 | Forcible confinement. | |
| 133 | 2022-03-10 | Mischief to property (under $5,000). | |
| 134 | 2022-03-10 | Causing unnecessary suffering to an animal (a dog). |
Footnotes
- MD FRCPC LL.B.
- R.S.C., 1985, c. C-46.
- See: R. v. Ricciardi, 2019 ONSC 6607, at para. 55.
- R. v. Currie, 1997 CanLII 347 (SCC), [1997] 2 S.C.R. 260, at para. 42.
- R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936.
- Boutilier, at paras. 69-70.
- Boutilier, at para. 63.
- Section 753(1)(a)(i) of the Criminal Code; see also R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309 and R. v. Dow, 1999 BCCA 177, [1999] B.C.J. No. 569.).
- 2011 ONCA 840, 287 O.A.C. 82.
- (1994) 1994 CanLII 9717 (NL CA), 115 Nfld. & P.E.I.R. 197.
- 2022 ONCA 866, 165 O.R. (3d) 321, at para. 67.
- As per Dr. Gray’s evidence on July 10, 2023.
- Boutlilier, at para. 37.
- See R. v. George, 1998 BCCA 126, B.C.J. No. 1505, at para. 23; and R. v. Bunn, 2012 SKQB 397, 406 Sask.R. 241.
- See R. v. R.F.L., 2011 ONSC 1900, at para. 350.
- Tynes, at para. 70.
- Boutilier, at para. 27.
- 2018 ONSC 6617
- 2018 ONSC 6617.
- See R. v. Szostak, 2014 ONCA 15, 118 O.R. (3d) 401, leave to appeal refused, [2014] S.C.C.A. No. 300.
- Boutilier, at para. 31.
- See R. v. F.E.D., 2007 ONCA 246, [2007], 84 O.R. (3d) 721, at paras. 44-45; para. 50, leave to appeal refused, [2007] S.C.C.A. No. 56; and R. v. McCallum (2005), 2005 CanLII 8674 (ON CA), 196 O.A.C. 101 (C.A.), at para. 47, leave to appeal refused, [2006] S.C.C.A. No. 145.
- See R. v. Solano, 2014 ONCA 185, 309 C.C.C. (3d) 386, at para. 15.
- R. v. Little, 2007 ONCA 548, 87 O.R. (3d) 683, at para. 70.
- R. v. Gracie, 2019 ONCA 658, 147 O.R. (3d) 385, at para. 41.
- R. v. Johnson, 2003 SCC 46, 2 S.C.R. 357, at para. 20.
- Section 761(1) of the Criminal Code provides as follows: “…. where a person is in custody under a sentence of detention in a penitentiary for an indeterminate period, the Parole Board of Canada shall, as soon as possible after the expiration of seven years from the day on which that person was taken into custody and not later than every two years after the previous review, review the condition, history and circumstances of that person for the purpose of determining whether he or she should be granted parole under Part II of the Corrections and Conditional Release Act and, if so, on what conditions”.
