R. v. Foster, 2023 ONSC 5066

COURT FILE NOS.: CR-21-70000387-0000 DATE: 20230906 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – RYAN FOSTER

Counsel: Ari Linds for the Crown Gabriel Gross-Stein for Ryan Foster

HEARD: June 26, 27, 28 and July 11, 2023

R.F. GOLDSTEIN J.

REASONS FOR JUDGMENT ON SENTENCE AND LONG-TERM SUPERVISION ORDER

1. Overview

1On June 26, 2022 Mr. Foster pleaded guilty in relation to three convenience store robberies that took place in 2019. He now comes before the court for sentencing.

2In addition to any sentence to be served, the Crown applies for a long-term supervision order (“LTSO”) for ten years. The sentencing proceeding and the LTSO proceeding are related, of course, and often considered at the same time (as in this case). That said, the two procedures are different. The purposes and principles of sentencing apply to an LTSO proceeding. The period of community supervision cannot, however, be considered when determining the length of the offender’s incarceration: R. v. L.M., 2008 SCC 31 at paras. 49-50; R. v. Johnson, 2003 SCC 46 at para. 23. This is different from dealing with a blended sentence under the dangerous offender provisions: R. v. Spilman, 2018 ONCA 551 at para. 32.

3I find that an appropriate global sentence for Mr. Foster is 8 years less pre-sentence custody. When credit for pre-sentence custody is calculated, including credit for harsh conditions of incarceration, I find that he must serve a further 18 months. I also find that Mr. Foster should be subject to a LTSO for 7 years. What follows are my reasons for sentence and for imposing the LTSO.

2. The Facts

(a) Circumstances of the offence

4Mr. Foster committed convenience store robberies in Toronto and Mississauga on June 21, 2019, November 7, 2019, and December 10, 2019.

Robbery of Mac’s Convenience Store – June 21, 2019

5Mr. Foster pleaded guilty to the following counts in relation to this robbery:

• Count 1 – robbery with a weapon (a knife) contrary to s. 343 (d) of the Criminal Code;
• Count 2 – wearing a disguise with intent to commit an indictable offence, contrary to s. 351(2) of the Criminal Code;
• Count 3 – possession of a weapon for a purpose dangerous to the public peace, contrary to s. 88(1) of the Criminal Code;
• Count 4 – assault causing bodily harm contrary to s. 267 (b) of the Criminal Code.

6At 1:00 am on June 21, 2019 Mr. Foster entered Mac’s Convenience at 3427 Derry Road East, Mississauga. His face was concealed. He was armed with a knife. Narayan Vig was working there by himself. Mr. Foster pointed the knife at Mr. Vig, hopped over the counter, demanded cash, and demanded that Mr. Vig lie on the floor. Mr. Vig did so. Mr. Foster took $300 from the till. He punched, kicked, and stomped on Mr. Vig’s head. Mr. Foster then left the store.

7The police obtained video surveillance footage to identify the assailant. The assailant’s hand had a distinct tattoo with the words “Foster Baby”. He also had a distinct tattoo with the letters “TRIN” on his arm. A non-confidential informant told police that Mr. Foster was known as “Trini” or “Trin” and provided police with his address. Mr. Foster was arrested on December 29, 2019 when he turned himself in to police. Police later executed a search warrant at Mr. Foster’s address. They found clothing worn by the assailant during the robberies. Booking photos showed Mr. Foster’s hand with the distinct “Foster Baby” tattoo.

8After the robbery, Mr. Vig attended hospital where he was treated for injuries to his head, face, nose, and throat. The assault was shocking. Mr. Vig was lying on the floor, defenceless, when, Mr. Foster gratuitously stomped on his head and neck.

Robbery of Esso Gas Station – November 7, 2019

9Mr. Foster pleaded guilty to the following counts in relation to this robbery:

• Count 5 – assault causing bodily harm contrary to s. 267 (b) of the Criminal Code;
• Count 6 – robbery with a weapon (a knife) contrary to s. 343 (d) of the Criminal Code;
• Count 7 – wearing a disguise with intent to commit an indictable offence, contrary to s. 351(2) of the Criminal Code;
• Count 8 – possession of a weapon for a purpose dangerous to the public peace, contrary to s. 88(1) of the Criminal Code.

10At 2:00 am on November 7, 2019 Mr. Foster approached the Esso Convenience Store at 2915 St. Clair Avenue East in Toronto. The store clerk, Chauchan Hemant, was working alone. He believed Mr. Foster was a customer. He buzzed Mr. Foster in. Mr. Foster, his face concealed and holding a knife, jumped over the counter. He demanded money and demanded that Mr. Hemant lay on the floor. Mr. Foster took $300 to $400 from the till. He then punched, kicked, and stomped on Mr. Hemant’s head and face. Like the assault of Mr. Vig, the assault was shocking. Mr. Foster gratuitously kicked and stomped a defenceless Mr. Hemant while he was lying on the ground.

11The police were able to identify Mr. Foster through a combination of video surveillance and eyewitness description.

12As noted, after Mr. Foster turned himself in, the police executed a search warrant at his residence. The police seized clothing that matched the clothing worn by the assailant in the robberies.

13Mr. Hemant was treated by ambulance personnel but did not attend the hospital. He suffered swelling to his face and head.

Robbery of James Variety – December 10, 2019

• Mr. Foster pleaded guilty to the following counts in relation to this robbery:
• Count 12 – robbery with a weapon (a knife) contrary to s. 343 (d) of the Criminal Code;
• Count 13 – assault with a weapon, contrary to s. 267 (a) of the Criminal Code;
• Count 14 – wearing a disguise with intent to commit an indictable offence, contrary to s. 351(2) of the Criminal Code;
• Count 15 – possession of a weapon for a purpose dangerous to the public peace, contrary to s. 88(1) of the Criminal Code.

14At 7:03 pm on December 10, 2019 Mr. Foster entered James Variety at 1410 Victoria Park Avenue in Toronto. The store clerk, Priyatharsan Gunarathnam, was working alone. Mr. Foster was armed with a knife and had his face covered. He jumped over the counter, waved the knife at Mr. Gunarathnam, and demanded money. He and Mr. Gunarathnam scuffled. Mr. Gunarathnam managed to escape from the store. He called the police. Mr. Foster fled with $1,023 in cash from the till.

15After fleeing from the store, witnesses observed an assailant running through the area. Police officers, following the path taken by the assailant, found a pair of shoes and gloves. The items matched the shoes and gloves worn by the assailant. The shoes generated a DNA profile belonging to Mr. Foster.

16Again, the police were able to identify Mr. Foster through a combination of eyewitness description and video surveillance. Again, after Mr. Foster turned himself in, the police executed a search warrant at his residence. The police seized clothing that matched the clothing worn by the assailant in the robberies.

17Mr. Gunarathnam sustained a 1” cut to his hand during the scuffle. He was treated by ambulance personnel at the scene but did not attend the hospital.

(b) Circumstances of the offender

18Mr. Foster is 34 years old. He has a 15 year old son. At the time of the offences, he was not working. He was raised by a single mother who worked as a massage therapist and then as a housekeeper. He left school in Grade 11 to work when his girlfriend became pregnant. He has lived in Calgary, and his mother and brother still live there. His main support in the Greater Toronto Area is his aunt, who lives in Markham. He had little contact with his father who, he indicated to Dr. Gray, was murdered when Mr. Foster was 23. He reported to Dr. Gray that he was a poor student, which was one of the reasons he left school. He has never had steady work and last worked in 2018 for a friend’s roofing company. His relationship with his son’s mother lasted some years, and they cohabitated for at time. He wishes to re-build his relationship with his son. He says he has a good relationship with his son’s mother, but it is not romantic or sexual.

19Mr. Foster has an adult criminal record commencing in 2008 with a conviction for assault. Prior to these offences his record consisted of two convictions for assault; one conviction for assault with a weapon; one conviction for break and enter; one conviction for failure to comply with a recognizance; five convictions for failure to comply with a probation order; one conviction for public mischief; one conviction for fail to appear; and one conviction for obstructing a peace officer. His longest sentence was time served with credit for 6 months on the break and enter charge in 2009. Break and enter is a very serious charge but given the six months sentence it is unclear how serious it was. The current robberies are clearly the most serious offences Mr. Foster has yet accumulated.

20Mr. Foster has suffered from health issues and injuries. In 2003, as a 12 year old, Mr. Foster was admitted to the Hospital for Sick Children for a “Pott’s Puff Tumor” and periorbital bilateral cellulitis. Pott’s Puff Tumor is a swelling of the front bone of the forehead. Periorbital bilateral cellulitis is an infection of the area around the eye. He had a bifrontal craniotomy. He eventually recovered, although he told Dr. Gray that he noticed cognitive and personality changes after the craniotomy. He found it harder to do well in school, was more impulsive, and was more prone to anger. As an adult, he underwent a machete attack to his side that came close to his lung and caused very serious injuries. He also reported to Dr. Gray that he has had several head injuries from fights leading to a loss of consciousness.

21I will deal with Mr. Foster’s personal circumstances in more detail when I consider the LTSO.

(c) Impact on the victims and the community

22None of the victims provided victim impact statements. All were injured. I draw the inference that these robberies were terrifying and traumatizing to the victims. Convenience store clerks often work alone late at night. They are vulnerable and isolated. Robberies of convenience stores shake the safety and security of the community. Everyone must occasionally resort to these stores. In addition to the danger to the store clerks, average citizens are also exposed to danger when these stores are robbed.

3. Legal Parameters

23Robbery with a weapon contrary to s. 343 (d) of the Criminal Code is a straight indictable offence and punishable by up to life imprisonment pursuant to s. 344(1) (b). Wearing a disguise with intent to commit an indictable offence, contrary to s. 351(2) (a) of the Criminal Code, is punishable by up to 10 years imprisonment when prosecuted by indictment. Possession of a weapon dangerous to the public peace contrary to s. 88(1) of the Criminal Code is punishable by 10 years imprisonment when prosecuted by indictment. Assault with a weapon, contrary to s. 267 (a) of the Criminal Code, is a straight indictable offence and punishable by up to ten years imprisonment. Assault causing bodily harm contrary to s. 267(b) of the Criminal Code, is also a straight indictable offence and punishable by up to ten years imprisonment.

4. Positions of the Crown and Defense

24The parties are not actually that far apart.

25Mr. Linds, Crown counsel, argued that I should impose a global sentence of 9 years on Mr. Foster, less pre-sentence custody. He also argues that I should impose a LTSO for ten years. Mr. Gross-Stein argues that Mr. Foster has been in custody for the equivalent of more than five years and should receive a seven-year global sentence. He should be sentenced to a further 18 months with a 5-6 year LTSO.

5. Case Law

26Mr. Linds referred me to several cases setting out the range of sentence for convenience store robberies. I will only refer to a few.

27R. v. Turner, 2022 ONCA 180: The offender was found guilty of five counts of armed robbery in relation to five convenience stores. The offender (and his co-accused) was masked. One of the robbers had a knife. The Court of Appeal upheld a sentence of 21 months on each count. The offender had a previous sentence of six years for ten similar robberies and the first robbery in this case was only three days following his warrant expiry date. The Court of Appeal remarked that the sentence was at the low end of the range.

28R. v. Kaliugavarathan, 2017 ONSC 2325: The offender pleaded guilty to one count of robbery and one count of disguise with intent. He robbed a convenience store at an isolated gas station. The store clerk, an older man, was working alone. The offender kicked him repeatedly in the head. The offender had a criminal record. Wein J. sentenced him to a penitentiary sentence of two years – which she classified as the minimum – on the robbery count and 6 months on the disguise with intent count, less credit for presentence custody and restrictive bail conditions.

29R. v. Eby, 2015 ONSC 6596: The offender robbed a Mac’s convenience store in the middle of the night in downtown Owen Sound. The offender attacked the store clerk, put his forearm to the clerk’s neck and throat, and said “don’t let me hurt you”. He stole some cigarettes and cash. He was found guilty after a judge alone trial. The offender was an Indigenous man of 29 with what Conlan J. called “a terrible criminal history.” Conlan J. sentenced him to three years in the penitentiary, less credit for pre-sentence custody.

30R. v. W.T.K., 2012 ONCJ 228: The offender robbed a convenience store at 10:30 in the evening. The store owner was working alone. The owner resisted and there was a scuffle, during which the owner suffered cuts to his hands. The offender stole $445 in cash. He pleaded guilty to robbery, possession of a weapon, wearing a disguise, and failure to comply with probation. He had six prior robbery convictions involving convenience stores as well as many failures to comply with court orders. He was on probation at the time of the robbery here. Borenstein J. sentenced him to four years less credit for pre-sentence custody.

31R. v. Caissie, 2020 ONSC 1939: The offender was found guilty of robbery with a knife after a judge-alone trial. He robbed a convenience store. He demanded that the lone female store clerk hand over cash. The clerk ran out of the store. The offender was unable to open the cash register but took cigarettes instead. The offender had previously been convicted of 14 robberies, each involving a knife or bladed weapon. McArthur J. sentenced the offender to 4 years in custody, less presentence custody.

32Mr. Gross-Stein referred me to R. v. Boudrias, 2020 ONCA 484. The offender was convicted of robbery, weapons dangerous, and two counts of breach of probation after a judge alone trial. The trial judge sentenced him to a global sentence of 40 months imprisonment. The offender robbed a cab driver at knifepoint. The cab driver either fell to the ground or was pushed by the offender. The offender then assaulted him while he was on the ground. The Court of Appeal upheld the sentence.

6. Mitigating and Aggravating Factors

33The main aggravating factor in this case is the nature of the robberies – robberies with a weapon, by a masked man, usually at night, with gratuitous violence against a lone store clerk. It is also aggravating that Mr. Foster has a criminal record.

34The main mitigating factor in this case is the plea of guilty. By pleading guilty, Mr. Foster takes responsibility for the offences. He spares the witnesses and the state the expense and difficulty of a trial. No trial date was set in this matter. It appears that Mr. Foster always intended to take responsibility for these offences.

35Mr. Foster also apologized. He indicated that he knows what he did was wrong, and that he has disappointed many people in his life, including his mother and his son. He also stated that he is disappointed in himself. He injured people who obviously didn’t deserve it. As he put it “I know I have a behavioural problem”. His goal is to get help, make a better life, stay out of trouble, and resume contact with his son.

36Mr. Foster’s time in pre-sentence custody is also a mitigating factor: R. v. Duncan, 2016 ONCA 754; R. v. Marshall, 2021 ONCA 344.

37Mr. Foster has been in custody since December 29, 2019. As of the date of sentencing, September 6 2023, he will have been in custody for 1348 days (or 3 years, 8 months, and 9 days, or 44 months and 9 days). Pursuant to s. 719(3.1) of the Criminal Code I will credit Mr. Foster at 1.5:1, which translates to 2022 days, or about 67 ½ months (or 5 years and 7 ½ months): R. v. Summers, 2014 SCC 26. Lockdown records from the Toronto South and the Toronto East Detention Centres show that Mr. Foster has been subjected to numerous lockdowns. He has also been in custody during the entirety of the COVID-19 pandemic. In my view, these factors are very mitigating.

7. Principles of Sentencing

38The fundamental principle of sentencing is that a sentence is to be proportionate to the gravity of the offence and the degree of responsibility of the offender. Other key principles of sentencing in convenience store robberies are general and specific deterrence. Those who would rob convenience stores, where the employees are frequently alone, isolated, and vulnerable, should know that they will pay a stiff price. I cannot, of course, ignore the principle of rehabilitation. Rehabilitation also plays a role, but in armed robberies of convenience stores rehabilitation must yield to general deterrence, given that convenience store workers are especially vulnerable: R. v Bogle, 2011 ONSC 4215 at paras. 15-16.

8. Sentence Imposed

39In my view, a penitentiary sentence is generally required for convenience store robberies. Where violence or a weapon is used, sentences for individual robberies can be in the range of 3 to 4 years.

40The global sentence that I am imposing is 8 years (or 96 months), less pre-sentence custody. Mr. Foster has served the equivalent of 67 ½ months in custody, or 5 years and seven months. That would leave Mr. Foster with 28 ½ months left to serve without any Duncan credit for harsh conditions of custody. The point of Duncan and Marshall, however, is not to reduce credit to a mathematical calculation but rather to impose a fit sentence. When I weigh the sentencing principles and the facts I find that a fit global sentence for Mr. Foster is a further 18 months after a deduction for pre-sentence custody.

41I understand that this sentence is significantly longer than any sentence previously served by Mr. Foster. I realize it hasn’t been raised by counsel, but I am concerned that a longer sentence could offend the “jump” principle: R. v. Borde (2003), 172 C.C.C. (3d) 225 (Ont.C.A.); R. v. Mawut, 2017 ONCA 168. The jump principle is a concern, but it is only one factor to take into account. These were knifepoint robberies with gratuitous violence. Specific and especially general deterrence are the key sentencing principles. As well, these crimes call for a denunciatory sentence. The jump principle, while important, must yield in these circumstances. That is why the global sentence of 8 years, with 18 months left to serve, is a fit sentence.

42The following are the sentences, broken down by count:

Regarding the robbery on June 21, 2019:

• Count 1 – robbery with a weapon (a knife) contrary to s. 343 (d) of the Criminal Code: 6 months in light of pre-sentence custody of 32 months.
• Count 2 – wearing a disguise with intent to commit an indictable offence, contrary to s. 351(2) of the Criminal Code: 6 months, concurrent to count 1.
• Count 3 – possession of a weapon for a purpose dangerous to the public peace, contrary to s. 88(1) of the Criminal Code: 6 months, concurrent to count 1.
• Count 4 – assault causing bodily harm contrary to s. 267 (b) of the Criminal Code: 6 months, concurrent to count 1.

Regarding the robbery on November 7, 2019:

• Count 5 – assault causing bodily harm contrary to s. 267 (b) of the Criminal Code: 6 months, concurrent to count 6 and consecutive to count 1.
• Count 6 – robbery with a weapon (a knife) contrary to s. 343 (d) of the Criminal Code: 6 months consecutive to count 1, in light of 32 months of pre-sentence custody.
• Count 7 – wearing a disguise with intent to commit an indictable offence, contrary to s. 351(2) of the Criminal Code: 6 months, concurrent to count 6 and consecutive to count 1.
• Count 8 – possession of a weapon for a purpose dangerous to the public peace, contrary to s. 88(1) of the Criminal Code: 6 months, concurrent to count 6 and consecutive to count 1.

Regarding the robbery on December 10, 2019:

• Count 12 – robbery with a weapon (a knife) contrary to s. 343 (d) of the Criminal Code: 6 months consecutive to count 1, in light of 32 months of pre-sentence custody.
• Count 13 – assault with a weapon, contrary to s. 267 (a) of the Criminal Code: 6 months, concurrent to count 12 and consecutive to count 6.
• Count 14 – wearing a disguise with intent to commit an indictable offence, contrary to s. 351(2) of the Criminal Code: 6 months, concurrent to count 12 and consecutive to count 6.
• Count 15 – possession of a weapon for a purpose dangerous to the public peace, contrary to s. 88(1) of the Criminal Code: 6 months, concurrent to count 12 and consecutive to count 6.

43In addition, I make the following ancillary orders:

• An weapons prohibition order pursuant to s. 109 of the Criminal Code for life in relation to the robbery counts;
• A DNA order in relation to the robberies, assault with a weapon, and assault causing bodily harm counts as they are primary designated offences; and,
• An order pursuant to s. 743.21 of the Criminal Code that Mr. Foster is to have no contact, directly or indirectly, with any of Narayan Vig, Chauchan Hemant, Priyatharsan Gunarathn, or Faisal Tufail.

44For the reasons I will set out below, I recommend that Mr. Foster serve at least part of his remaining custodial sentence at the St. Lawrence Valley Correctional and Treatment Centre.

45I turn now to the LTSO.

9. The Long Term Supervision Order

The LTSO regime

46The LTSO regime is set out in s. 752.01, 752.1(2), s. 753.1 and s. 753.2 of the Criminal Code. The first step in the process is for the prosecutor to advise the court under s. 752.01 that it intends to make an application for an assessment pursuant to s. 752.1(1) of the Criminal Code. The court shall order a report upon application by the prosecutor where there are reasonable grounds to be believe that an offender may be found to be a dangerous offender or a long term offender. The assessment report may only be ordered where the offender is found guilty of a serious personal injury offence or one of the offences enumerated in s. 753.1(2) (a) of the Criminal Code – primarily sexual offences. The report must be filed with the court within 30 days of completion. I made the assessment order regarding Mr. Foster on December 16, 2022 appointing Dr. Gray as the assessor. The report was filed as part of the record.

47After the filing of an assessment report pursuant to s. 751.1(2), Crown counsel may apply to the Attorney General for consent to bring a dangerous offender or LTSO application: Criminal Code, s. 754(1)(a). The Attorney General did consent, and the consent was filed as part of the record.

48The court may find an offender to be a long-term offender if it is satisfied that:

• A sentence of two years or more is to be imposed;
• There is a substantial risk that the offender will re-offend; and,
• That there is a reasonable possibility of eventual control of the risk in the community.

49It should be noted that a court shall be satisfied that there is a substantial risk that the offender will re-offend where certain criteria are met that are associated with sexual offences: Criminal Code, s. 753.1(2). That mandatory finding does not apply here.

50The over-riding aim of the dangerous offender and long term offender regime is the protection of the public by the prevention of future violence: R. v. Jones, [1994] 2 S.C.R. at para. 128; R. v. Johnson, supra, at paras. 19, 29; R v. G.L., 2007 ONCA 548, [2007] OJ. No. 2935 at para. 70. Ordinary sentencing principles apply as set out in the sentencing provisions of the Criminal Code apply, including the fundamental purposes and principles of sentencing: Johnson, supra, at para. 23. Finding a person to be a dangerous offender or a long term offender is exceptional: L.M., supra, at para. 39.

51The court must balance the liberty interests of the offender with the risk to public safety that will arise when the offender is released. In a contest between the individual interests of the offender and the protection of the public, the protection of the public must prevail: R. v. G.L., supra, para. 70.

The Calgary Charges

52On May 27, 2019 at 6:08 in the morning Mr. Foster robbed a 7-11 Convenience Store in Calgary. He was armed with a knife. His face was concealed. There was one store clerk, Faisal Tufail, working in the store. Mr. Foster held the knife to Mr. Tufail’s throat and demanded cash. Mr. Tufail opened the till. Mr. Foster pushed him to the ground and then took a quantity of cash. After taking the cash, Mr. Foster punched Mr. Tufail in the face. He proceeded to kick and stomp on Mr. Tufail’s head. Mr. Tufail lost consciousness during the assault. He sustained injuries to his head, lips, teeth, and nose. When he awoke he was disoriented and confused. Ambulance personnel transported him to hospital for head trauma.

53I agree with Mr. Gross-Stein that the Calgary charges are admissible in relation to Mr. Foster’s pattern of behaviour. They are also relevant as a sentencing factor in the same way that any other criminal conviction is relevant to Mr. Foster’s character, general disposition to criminal activity, and prospects for rehabilitation. I also agree that the victim impact statement from that offence is not admissible on sentencing or on the LTSO hearing and I do not take it into consideration.

Previous history of community supervision

54Mr. Foster’s history while on probation orders and recognizances is certainly relevant to the question of the proper length of an LTSO.

55Many of Mr. Foster’s breaches after 2008 are associated with his relationship with the mother of his child and former partner, Bena Awywen. He accumulated numerous charges including assaults, threats, and breaches of recognizances and probation orders in relation to non-contact orders. He also frequently exhibited hostility and non-cooperation with his probation officers. As he admitted to Dr. Gray, he has a problem with authority, especially police officers. He failed to complete the PAR course on several occasions. He lived a peregrinating life, rarely with a fixed address and rarely with steady employment. His probation officers consistently scored him at a high or very high risk to re-offend. He admitted to more than one probation officer that he had an anger problem.

56In 2018 and 2019 Mr. Foster began to be more cooperative with his probation officers but also displayed signs of anger and threatening behaviour. He attended individual counselling sessions on anger management and completed them. He completed his final probation order without incurring new charges in March, 2019. His last probation officer noted that he was suitable for community supervision. Unfortunately, only two months later, he committed the Calgary robbery.

Dr. Gray’s report and diagnosis

57At 55 pages, Dr. Gray’s report is highly detailed and extremely comprehensive. His report includes 5 pages of appendices that set out Mr. Foster’s scores on the PCL-R (“Psychopath Checklist – Revised”) and the Violence Risk Appraisal Guide – Revised (“VRAG-R”) He conducted an extensive review of Mr. Foster’s medical, health, psychiatric, institutional, and community supervision records. He interviewed Mr. Foster in person and Mr. Foster’s mother by telephone.

58In Dr. Gray’s opinion, Mr. Foster does not meet the criteria for a psychiatric diagnosis in the mood, anxiety, or psychotic categories of the Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (“DSM-5”).

59Mr. Foster indicated to Dr. Gray that he has undergone several traumatic events. Those included attacks during his teenage years when he lived in a “bad area.” He was stabbed in the neck in 2011 (there is some concern that he may have told police it was a suicide attempt) and assaulted with a machete in 2016. He sometimes has flashbacks and nightmares about the incidents, although he has taken medication for it. He indicated to Dr. Gray that he had increased irritability after 2016. Dr. Gray noted that Mr. Foster may have had hypervigilance.

60Dr. Gray did diagnose Mr. Foster as possibly suffering from post-traumatic stress disorder (“PTSD”). Symptoms of PTSD do not always manifest themselves right away. Dr. Gray indicated that his prolonged incarceration may have caused sufficient stress to elicit symptoms of PTSD from the 2016 machete attack. Repeated traumatic events, such as the 2011 stabbing to Mr. Foster’s neck, may have a cumulative effect on symptoms of PTSD. Dr. Gray noted:

Overall, Mr. Foster's display of anger and irritability, and his level of violence, appears to have increased since around 2018 judging by collateral documents and information on his index offences. While he generally got along with his supervising probation officers prior to 2018, he displayed dysfunctional and almost threatening behaviour to his 2018 probation officer, Mandy Harack. This necessitated a change to another officer. He then distanced himself from his immediate family more completely than in the past and went on to commit a series of robberies with extraneous, callous violence beyond his previous pattern of offending. It is possible this escalation in his level of anger and violence more recently is connected to an underlying diagnosis of PTSD.

61In his review of Mr. Foster’s psychiatric records, he noted that Mr. Foster reported hearing voices in 2015-2016 but only began to report this in 2020. Some psychiatrists considered a diagnosis of a primary psychotic disorder such as schizophrenia. Dr. Gray believes it is highly unlikely that Mr. Foster suffers from a psychotic disorder. Mr. Foster simply does not present with any of the other symptoms associated with a psychotic disorder. Instead, Dr. Gray noted that the nature and character of the voices were…

… more consistent with his internal voice stemming from dysfunctional anger rather than true psychosis. In many subjects, the experience of intense feelings of anger takes the form of an internal voice. Given that Mr. Foster associated the voice with feelings of anger, and that the voice reportedly sometimes issued him commands to commit acts of violence, it is more likely part of his ego-syntonic symptoms of anger rather than a symptom of an underlying psychotic disorder.

As noted above, a diagnosis of PTSD is associated with increased feelings of irritability and hypervigilance. I note that Mr. Foster's first report to others of auditory hallucinations came only five months before his first report of flashbacks. It appears that the "voices" may be a product of the anger associated with the newly emerging symptoms of PTSD, given the timeline. The "voices" lessened in frequency at the same time as the flashbacks and nightmares, suggesting a possible link between the two.

62Dr. Gray also opined that the complications from his 2003 tumour and subsequent surgery and treatment were likely only minor contributors, if at all, to his current behaviour.

63Dr. Gray further stated that Mr. Foster likely meets the criteria for anti-social personality disorder (“ASPD”). It is estimated that 40-60% of incarcerated males have been diagnosed with ASPD. A personality disorder is a set of maladaptive character traits that manifest in late adolescence and continue to adulthood. According to the DSM-5, ASPD is a “pervasive pattern of disregard for and violation of the rights of others occurring since age 15.” There must be at least three of seven 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.

64There also needs to be evidence of a diagnosis of a conduct disorder prior to age 15. Dr. Gray noted that Mr. Foster showed some evidence of a conduct disorder in his early years, but it is not clear as he does not have sufficient records. Mr. Foster manifests at least four of the seven criteria.

Dr. Gray’s risk assessment and opinion

65Dr. Gray administered the PCL-R to Mr. Foster. The PCL-R compares the subject of the test with the psychological construct of psychopathy. Psychopathy is associated with violent recidivism and is a strong risk predictor. The higher the score, the poorer the prognosis for treatment. Dr. Gray administered the test and scored Mr. Foster at 19. The cut-off to meet the psychological construct of psychopathy is 30. Mr. Foster, therefore, scored well short. His score of 19 puts him in the 35.1 percentile for male offenders (the average score is 22-23).

66Dr. Gray also administered the VRAG-R to Mr. Foster. The VRAG is an actuarial instrument. It is used to predict risk of violent re-offending. Dr. Gray scored Mr. Foster at +18, which is higher than 80% of offenders in the study population. That puts him in the second highest of 9 ascending risk categories. He is at a high risk to re-offend. Dr. Gray noted that 60% of offenders in the VRAG-R study population with similar scores re-offend within five years of release into the community; and 82% of offenders with similar scores reoffend within 15 years of release.

67Dr. Gray’s clinical opinion in relation to s. 753(1) (a)(i) of the Criminal Code is that the “psychiatric evidence is lacking that these prior offences would show a pattern of behaviour that would necessarily have a ‘likelihood’ of causing serious injury or ‘severe psychological damage.’” Dr. Gray does observe, however, that the index offences constituted a serious escalation in his behaviour. The commonality between the index offences, prior offences, and one institutional misconduct is the underlying problem of dysregulated anger. There is a pattern of explosive violence towards strangers as shown in the index offences and the institutional misconduct.

68I note that Dr. Gray was evaluating the psychiatric evidence in relation to a dangerous offender application. At the time of the assessment the Attorney General had not, of course, signed off on a dangerous offender or LTSO application. Ultimately the Attorney General’s consent was obtained for a long term offender application. The dangerous offender criteria under s. 753(1) (a)(i) of the Criminal Code are slightly different for those for a long term offender.

69Dr. Gray opined that Mr. Foster’s risk of recidivism for violent offending is high. The specific risk factors are impulsivity anger management deficits, violent ideation and attitudes, and a lack of employment and structure. He noted that his violent thoughts and aggressive behaviour have settled since his incarceration, likely due to medication, but it is unclear if the gains will continue when he is released.

70Dr. Gray then opined on Mr. Foster’s chronicity of risk factors, the likelihood of his risk level changing over time, and the treatability of risk. The pattern of his violent behaviour cannot be considered longstanding or entrenched. Treatment in custody has had some success in reducing self-reported violent thoughts and violence towards others. He noted that Mr. Foster engaged in individual therapy starting in 2018 on a monthly basis and appeared to do well. It is Dr. Gray’s opinion that he has not had extensive treatment in areas relevant to his risk. The underlying factors to his risk of violence are not untreatable. Dr. Gray noted that the escalation in violent thoughts and acts began around 2018. Although he was uncertain, Dr. Gray noted that the escalation was consistent with the after-effects of the 2016 machete attack. His view is that PTSD is more likely responsible for the escalation of violence than the 2003 craniotomy. His view is that PTSD has escalated, rather than caused the escalation in the severity of risk and violence. Since the pattern of violence is more rooted in a disorder rather than a head injury, Mr. Foster is likely to be more treatable. This is also consistent with his score on the PCL-R. Overall, Dr. Gray’s opinion is that Mr. Foster does not meet the legal definition for a dangerous offender. More importantly, given that a dangerous offender application is not before the Court, is this aspect of his opinion:

… it is my opinion that psychiatric evidence is lacking to support the legal question of Mr. Foster's risk being considered "intractable". I base this on the lack of evidence that an appropriate dose of specific treatment has failed to reduce his risk, and the origin of his recent more serious violent behaviour being rooted to an extent in a newer, and potentially treatable, diagnosis. With appropriate treatment and medications, it is my opinion that Mr. Foster could develop internal controls to help reduce his risk of violence in the future.

71Dr. Gray’s opinion is that Mr. Foster’s risk can be managed in the community with appropriate interventions and supports. He set out some of his recommendations for community support and the types of therapy that could assist.

The viva voce and email evidence

72Dr. Gray testified at the sentencing/LTSO hearing. In cross-examination, he agreed that it is unusual for a person to engage in a sudden escalation of violence after the age of 30. Usually anger gets less severe with age. The symptoms of PTSD, which may have driven the escalation, could have taken a year or two to manifest. That is not unusual. The robberies were more associated to ASPD but the extreme violence more associated with PTSD, although there is something of an overlap. PTSD can be treated effectively with different types of treatment. If it is successful, one would expect a decline of the more extreme violence. Mr. Foster has done better in individual therapy than group therapy but would attend group therapy if ordered. In terms of the voices, Mr. Foster’s description is consistent with non-psychotic voices, enhancing his reliability as a historian. He acknowledged anger management and impulsivity issues.

73Dr. Gray also described the St. Lawrence Centre. That is a provincial correctional facility that is designed to meet mental health needs. It is fully staffed with mental health professionals, such as nurses and psychologists, and is more like a hospital than a jail. Dr. Gray is in a position to assist if Mr. Foster applies to go there and is accepted. A judge can recommend that an inmate serve his sentence there.

74Travis Chapman, a parole officer, testified and described the reintegration programs run by Correctional Services Canada (“CSC”). CSC supervises offenders on a LTSO even where they have not been sentenced to the penitentiary. He described the evaluation process when an offender is assessed upon intake, and programs available for offenders with mental health issues. There is programming to deal with anger management. Even where offenders have come from a provincial institution, there is programming for those on an LTSO. Although it would not matter that much to the federal correctional authorities what programming the offender had done in a provincial institution, CSC officers would still get the treatment reports. In cross-examination, Mr. Chapman testified that he has never seen an offender on an LTSO be released on parole prior to their statutory release date, although that is normal for other offenders.

75Brad Tamscu is an employee of the provincial Ministry of the Solicitor General. He gave evidence about programming that is available in provincial institutions. He had specific knowledge of the St. Lawrence Valley institution and described the application process and the correctional programs. He also described the intensity of the programs and the nature of the programs.

76One piece of evidence submitted was email correspondence between Mr. Gross-Stein and Paul Sledge, the clinical director at Royal Ottawa Hospital, which provides services to the St. Lawrence Valley institution. Dr. Sledge indicated that Mr. Foster likely would meet the criteria for admission but he could not be certain until he saw the referral documents. Once accepted the offender would be placed on the wait list. Ideally, the offender would be transferred to St. Lawrence for the last 5-6 months of their sentence, but it would depend on the wait list. Dr. Sledge indicated that at the time of the email (June 28, 2023) the wait list had been fairly short for the past few months.

The positions of the parties

77Mr. Linds, for the Crown, argued that Mr. Foster continues to present a high risk of re-offending. That is consistent with the Mr. Foster’s VRAG-R score and with the evidence before the court of his behaviour during the Calgary and Toronto robberies. Mr. Linds acknowledged that Dr. Gray suggested that a period of supervision of 5-6 years would suffice. He argued, however, that given Mr. Foster’s poor performance under community supervision in the past, a full ten years is required. Based on the evidence of Mr. Chapman, Mr. Linds also suggested that Mr. Foster would have access to better programs in a penitentiary than in a provincial institution: R. v. Spilman, supra. Mr. Gross-Stein, in contrast, argues that Mr. Foster is a good candidate for a shorter LTSO. Spilman does not apply to this case. He argues that Dr. Gray’s recommendation of a 5-6 year period is appropriate.

Analysis

78I agree with Mr. Gross-Stein that Spilman does not apply to this situation. As R. v. L.M. and R. v. Johnson make clear, the LTSO provisions require bifurcating the process so that the period of incarceration is considered separately from the period of community supervision. See also: R. v. Hoshal, 2018 ONCA 914.

79Mr. Gross-Stein referred me to R. v. Rondeau, 2017 ONCJ 644. The offender pleaded guilty to stealing a motor vehicle, and then to five counts of robbery with a knife, assault while threatening to use a knife, aggravated assault, and administering a noxious thing. The offender essentially went on a crime spree. The robberies included robbing a bank, robbing customers at an ATM and using pepper spray to subdue them, breaking into a parked car and stealing it, and a convenience store robbery. The offender was Indigenous, had a drug addiction, mental health issues, a history of family instability, and a lengthy criminal record. The sentencing judge had the benefit of a Gladue report. It was the first time that one had been prepared for Mr. Rondeau. The sentencing judge sentenced him to a sentence of two years less a day, with a recommendation that the offender be referred to the St. Lawrence Valley provincial institution. With pre-sentence custody the offender received the equivalent of a global sentence of four years, three months, and six days. The sentencing judge clearly crafted the sentence so that the offender could be referred to St. Lawrence Valley.

80In this case, I do not need to specifically craft a sentence that would put Mr. Foster in a provincial institution. I have already determined that an appropriate sentence is 18 months. I do think that I could have done so, if required, without offending the principle set out in L.M., Johnson, and Hoshal. That is because the consideration of a fit sentence – which might include determining whether the sentencing principle of rehabilitation is better met in the federal or provincial system – is separate from considering the length of an LTSO. Had this been close to the line of penitentiary versus provincial institution, I would have imposed the lesser sentence. In the circumstances of this case, I am persuaded that an appropriate disposition is a provincial sentence so that I can make a recommendation that Mr. Foster his sentence at St. Lawrence Valley. In doing so, I believe I am still fully taking deterrence and denunciation into account.

81The parties agree that I should impose a LTSO. Mr. Foster meets all three criteria:

• I have imposed a sentence of more than two years less pre-sentence custody;
• There is a substantial risk that Mr. Foster will re-offend; and,
• There is a reasonable possibility of eventual control of risk in the community.

82The only real issue is the length of the LTSO.

83I give substantial weight to Dr. Gray’s opinion. He had access to a great deal of background material; he provided a highly comprehensive report; he diagnosed Mr. Foster; and he is aware of the different types of supports that are available to Mr. Foster.

84There is good news and bad news in Dr. Gray’s report. The good news is that Mr. Foster knows he has a problem. He told Dr. Gray that he wished to take counselling. He also told Dr. Gray that he recognizes he has major difficulties with anger and impulsivity. He basically said the same thing to the court. He has never been treated for PTSD and there is a growing recognition that much of the inmate population suffers from PTSD. There are programs available to deal with PTSD and there is a potential for treatment to succeed. Mr. Foster is also now in his mid-30’s. Although his violence has escalated – likely due to traumatic events – most offenders de-escalate their violence as they age. Regrettably, Mr. Foster has led a dissolute life to this point. We cannot, however, simply lock him up and throw away the key. Everyone has something that they can contribute to society. Up until now Mr. Foster, frankly, has not, but hopefully with the right treatment he can change that. I believe he wants to. I accept that he is sincere when he says he wants to reconnect with his son, stay out of trouble, and find steady employment.

85The bad news is that Mr. Foster still represents a very high risk to re-offend and given his anger issues he simply may not be able to help himself, despite good intentions. In the past he has not done well on community supervision orders, although he was starting to show some improvement until he committed these index offences. The highly gratuitous nature of the violence inflicted during the robberies is extremely concerning. In determining the proper length of the LTSO, I cannot lose sight of the fact that further escalation could bring devastating consequences for a future victim, and for Mr. Foster as well.

86When I take all of the evidence into account, I find that the appropriate period of community supervision is 7 years. In my view, the full ten years sought by the Crown is unnecessary; but at the same time, I remain concerned about Mr. Foster’s troubled history of non-compliance. Notwithstanding the great weight I place on Dr. Gray’s opinion, I find that a period of 5-6 years is simply too low given his level of risk.

87Accordingly, Mr. Foster will be supervised in the community under the Corrections and Conditional Release Act pursuant to s. 753.2 of the Criminal Code for a period of 7 years. As noted, I recommend that Mr. Foster serve his remaining custodial sentence at the St. Lawrence Valley Correctional and Treatment Centre.

88The following conditions will apply to the LTSO, in addition to any conditions imposed by Mr. Foster’s LTSO supervisor:

• Take counselling as required by your LTSO supervisor;
• Submit to any actuarial, psychological, or other testing as required by your LTSO supervisor;
• Live at an address approved of by your LTSO supervisor when in the community and do not change your address without the prior written approval of your LTSO supervisor;
• Have no contact, directly or indirectly, with Narayan Vig, Chauchan Hemant, Priyatharsan Gunarathnam, or Faisal Tufail;
• Do not attend Mac’s Convenience at 3427 Derry Road East, Mississauga; Esso Convenience Store at 2915 St. Clair Avenue East in Toronto; or James Variety at 1410 Victoria Park Avenue in Toronto; 7-11 Convenience at 2936 Radcliffe Drive SE, Calgary.

R.F. Goldstein J.