COURT FILE NO.: CR-21-00000006-0000

DATE: 2024Mar26

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

RYAN HAMELIN

Defendant

C. Cottle, for the Crown

P. Casey, for the defendant

HEARD: January 23, 24, 25, 26 and February 5, 2024

THE PUBLICATION, BROADCAST OR TRANSMISSION OF ANY INFORMATION THAT COULD IDENTIFY THE COMPLAINANTS OR A WITNESS IN THIS PROCEEDING IS RESTRICTED PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE OF CANADA.

Tranmer J.

APPLICATION FOR DESIGNATION AS A DANGEROUS OFFENDER

and IMPOSITION OF AN INDETERMINATE SENTENCE

Background

[1] The Crown seeks an order pursuant to section 753(1) finding Ryan Hamelin to be a dangerous offender and imposing a sentence of detention in the penitentiary for an indeterminate period of time.

[2] Mr. Hamelin pleaded guilty to and was convicted of 3 counts of criminal harassment, 2 counts of publishing a defamatory libel, threatening to burn the home of his former domestic partner, mischief to property, possession of stolen property and 2 counts of breach of court orders by communicating with HN.

[3] These offences were committed against HN, a domestic partner, following the termination of their relationship by her. The relationship began while Mr. Hamelin was serving a long term supervision order in a community correctional centre in Kingston pursuant to a residency condition, under the supervision of his parole supervisor, Serge Hebert. The offences occurred within 9 months following the expiration of the long term supervision order, and continued from November 2019 into March 2020.

Agreed Statement of Fact

[4] An agreed statement of fact was filed to support the guilty pleas and convictions.

[5] Mr. Hamelin and HN began dating in 2018 while he was subject to a residency condition under his long term supervision order. He eventually resided with her and her two children, ages 11 and 7 years.

[6] HN terminated the relationship on October 27, 2019. He continued to stay at her residence until November 1, 2019. On October 31, 2019, Mr. Hamelin began communicating with HN by text and other electronic devices repeatedly, knowing that she did not want to have any communication whatsoever with him. She discovered that he had damaged her laptop beyond repair. Over the next 2 weeks, he sent her hundreds of emails and called her repeatedly. He communicated with her employer, a local public school board, alleging that she was downloading child pornography and engaging in sex acts with several men. Her employer contacted the Kingston police to report having received a series of concerning emails alleging grave misconduct on the part of HN rendering her unfit to work with children. She was suspended from her work, while the school investigated the allegations. He sent a similar email to the dance troupe where she was a dance coordinator and instructor. Despite being cautioned by the police, Mr. Hamelin persisted in communicating or in attempting to communicate with HN. She received messages from him on almost a daily basis throughout December 2019. On December 24, 2019, there was a break-in at her home and her MacBook was stolen. He messaged her about that.

[7] When Mr. Hamelin was arrested, on December 27, 2019, he was found in possession of her MacBook laptop. He has been held in custody without bail since his arrest. Although prohibited by court order from communicating with HN, he continued to do so although he was in jail. Between February 20, 2020 and March 6, 2020, he left 16 voicemail messages for her. The content is disturbing, vile, disgusting and highly disrespectful.

[8] He told Dr. Gray that his intention was to cause HN to feel hurt in the same way that she had caused him to feel hurt.

Order for Assessment

[9] Following the convictions before me, upon Crown application, on April 13, 2023, for the reasons given, I ordered an assessment pursuant to section 752.1 under the dangerous offender legislation.

[10] Dr. Gray performed the assessment and his report, dated May 9, 2023 is filed in Exhibit 1.

[11] The Crown has filed the consent of the Attorney General to these proceedings.

The Issues

[12] The Crown seeks to have Mr. Hamelin found to be a dangerous offender under section 753(1) and, if so, sentenced to an indeterminate sentence, under section 753(4)(a).

[13] Subsection 4.1 states that 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 paragraphs (4)(b) or (c) will adequately protect the public against the commission by the offender of a serious personal injury offence.

[14] Mr. Hamelin submits that because of the evidence of treatment and programming that he requires having not been offered to him yet but available, particularly within a federal penitentiary, the strict close supervision available if subject to a LTSO and the strict limiting conditions that he can be subjected to by the Parole Board of Canada, firstly, that the Crown has not proven beyond a reasonable doubt a criterion for designation as a dangerous offender, namely, “a likelihood of inflicting severe psychological damage on other persons, through failure in the future to restrain his or his behaviour”, and secondly, alternatively, if he is found to be a dangerous offender, he should be sentenced to a jail term which is the equivalent of in excess of a 10 year penitentiary sentence, less presentence custody credit, followed by a long term supervision order of 7 to 10 years.

The Evidence on the Application

[15] The evidence on the Application consisted of materials filed by the Crown which included the consent of the Attorney General, a transcript of the proceedings before me including the Agreed Statement of Fact, Mr. Hamelin’s criminal record, the victim impact statements of his two most recent victims, transcripts of proceedings with respect to his previous convictions and sentencings, previous psychological and psychiatric assessments, previous correctional plans, CSC assessments for decision and Parole Board decisions.

[16] The Crown called viva voce evidence of Dr. Gray, forensic psychiatrist, Stephen Eros, CSC program manager and facilitator, Jennifer Howie, CSC parole officer, supervisor and Acting Regional Director, and Karen Thomson, Regional Manager of Conditional Release Programs for the Parole Board of Canada.

[17] HN described the horrendous and psychologically damaging emotional impact that Mr. Hamelin’s crimes had on her and her family. He caused her to experience incessant stress, anxiety, worry, abuse and humiliation in all aspects of her life. She described his repulsive and abusive communications as emotional torture which escalated throughout the months following her termination of the relationship with him. She felt that he was extremely manipulative and absolutely relentless in his goal to tear her down, ruin her reputation and blame her for his unfortunate life situation. The communications to her employer and dance troupe left her ashamed and disgraced and resulted in her being placed on administrative leave from her teaching position and being barred from attending at the school or communicating with any of her colleagues or students while she was investigated by the school board. There were abusive social media posts including on Facebook and the school’s Twitter account as well as posters displayed in the neighbourhood around the school making grotesque false accusations about her. These posts continue to be seen on Google. He terrorized her and her family during the Christmas season of 2019. They could not be at home together or wake up on Christmas morning as a family.

[18] She had to pay for a large cell phone bill, in the order of $6000, which he had incurred, and she had to replace the computer which he had destroyed in the sum of approximately $1350.

[19] His behaviour continued for over four months, including while he was in jail and subject to a non-communication order.

[20] Clearly and quite reasonably and expectedly, he caused her, and his actions were likely to cause her, to experience severe psychological injury that has and will no doubt continue to haunt her.

The Offender

[21] The various courts who have sentenced Mr. Hamelin, the professionals who have attempted to treat Mr. Hamelin previously and the CSC and parole board decisions have reviewed his personal circumstances.

[22] The PSR dated August 16, 2011, reported that he denied anger management issues.

[23] He minimized the threat he posed to others. He portrayed himself as the victim. He had no insight into his abusive behaviour and he did not accept responsibility.

[24] His mother and aunt blocked his calls. As his father said, he uses people to the point that they burnout. His parents stated that his offending would happen again. It did, AB and HN.

[25] The PSR reported that Mr. Hamelin was not interested in attending counselling.

[26] Justice Meijers referred to Mr. Hamelin’s personal circumstances in his decision of November 2014, which imposed a long term supervision order. (R. v. Hamelin, [2014] O.J. No. 6663 (OCJ)).

[27] Most recently, Justice Clark in his decision of July 18, 2018, found in Ex.6, stated in part,

“Given the chronology, it is patently clear that Mr. Hamelin has not participated in or really even started any rehabilitative programming in the community, as set out in the various terms of the Long-Term Supervision Order.

His criminal record starts in 2002. I will not articulate the various entries as they are the subject of the materials provided to the Court. It demonstrates, however, a pattern of domestic criminal harassment with different intimate partners, primarily the mother of his children.

Dr. Pearce opines that Mr. Hamelin is a medium to high risk to re-offend, although in the lower risk to do so violently.

The aggravating factors as set out by the Crown have been considered by this Court. Essentially, the most problematic of them is that Mr. Hamelin appears unrepentant, or at least presently unwilling to want to change his life for the better. He sees the terms of the Long-Term Supervision Order as being of no benefit to him rather than it providing a structure which, if followed, could be a plan or recipe for his future success in the community. Efforts have been made to accommodate his complaints, such as arranging for him to attend at a different residence other than the Keele Centre.

Mr. Hamelin has made some efforts to pursue counselling, not so much treatment, and other rehabilitative efforts while at the Metro South Detention Centre. He meets regularly with Ms. Astri, the chaplain. He meets periodically with a gentleman named Nolan, a social worker at the same facility. He also meets periodically with a mental health and justice worker from St. Margaret’s Housing and Community Support Services, and he has been placed in touch with Brain Injury Services in Barrie, Ontario, to continue to receive information and perhaps connect with them once released from custody.

Mr. Hamelin enjoys continued pro-social support from his family. His parents reside in Midland. His father, John Hamelin, is quite concerned for his son’s welfare and mental health issues. Mr. Hamelin Sr. has attended court regularly and, through counsel, has indicated that he and his family members will continue to support their son once released.

The Court is aware, and it has been documented, that Mr. Hamelin rather unfortunately sustained a brain injury, a serious head trauma from a motor vehicle accident at the age of 17. This has caused him to be impulsive from time to time.

Mr. Hamelin is not without skills. His work history has included sales of recreational vehicles, small engine work in the Wasaga Beach area, and he has worked over the years as an artist. He has continued to take art therapy with Mr. Chris Liu while at the Metro South Detention Centre. Mr. Liu is also a registered psychotherapist. Art is very important to Mr. Hamelin. More will be said about that momentarily.

… Most significant is Mr. Hamelin’s loss of hearing, believed to be connected, medically, to his brain injury. This has also incidentally affected his memory, resulting in compromised cognitive abilities, exacerbated by a personality disorder, and acute stressors have precipitated some suicidal ideation. In more lay terms, Mr. Hamelin often presents as being highly impulsive with poor coping skills. There is reference to a diagnosis of dysthymia, which is referrable, in law terms, as chronic depression.

… After Mr. Hamelin’s apprehension on March 28, 2017, he was transferred to Joyceville Institution, as his Supervision Order is Federally administered. Unfortunately, he was severely assaulted, physically and sexually, by other inmates, resulting in serious trauma. He subsequently suffered a seizure for the first time and was taken to a hospital in the Kingston area for testing. If sentenced to a further period of custody, it will be served in a Federal institution, which his counsel has submitted would be a frightening prospect for him given his previous experience.

Among his plan or plans, he is hoping, in due course, to be able to move to Elliot Lake with his mother, and certainly to resume employment in the sale of recreational vehicles, and to continue his artwork.

There is no doubt that Mr. Hamelin still poses as a risk. There has been a history of non-compliance. He has remained, for much of the time, rather intransigent, meaning rigid and inflexible in his attitude toward supervision and counselling. Therefore, management of these risks will continue to be problematic.

Mr. Hamelin has spoken again to the Court today very well. The Court has noted a change in his attitude. The Court is left with a degree of confidence that Mr. Hamelin can now accept that the plan for him can, indeed, be a recipe for his successor.”

[28] Dr. Gray also reviewed Mr. Hamelin’s personal circumstances in great detail in his court ordered assessment report and in his trial testimony.

Criminal Record

[29] His criminal record is documented in Exhibit 1, Tab 4, Ex.2 and Ex.6.

[30] Dr. Gray notes that Mr. Hamelin’s crimes do not involve substance abuse, sexual misconduct or physical violence.

[31] His criminal offending commenced in 2002 and involves criminal harassment of domestic female partners after those partners had terminated their relationship with him. His criminal record consists of 5 prior convictions for criminal harassment against former domestic partners. His criminal record also consists of 14 convictions for failure to comply with court orders and 3 convictions for breaches of his Long-Term Supervision Order.

[32] His offending against AB, his previous victim, extended over years.

[33] In her submissions, Crown counsel points out that on 6 occasions, Mr. Hamelin has been charged while subject to probation orders, on bail or subject to Family Court orders.

[34] Crown counsel also submits that his criminal record indicates that he has been charged within days or weeks of release from custody.

[35] He has been convicted for offences committed while in jail and subject to non-communication orders.

[36] Dr. Gray reported and testified that the index offences against HN are an escalation of his criminal conduct insofar as he intended to hurt his victim rather than inspire reconciliation with the former partner as was the case in prior crimes.

[37] The circumstances of his prior convictions which began in 2002 are set out in the transcripts of conviction and sentence filed by the Crown, Exhibit 2.

[38] The courts in those cases identify Mr. Hamelin’s failure to abide court orders and indeed committing crimes while subject to court orders. It is identified that he is unwilling to take responsibility for his criminal conduct. Anger management issues are identified but as Dr. Gray notes Mr. Hamelin does not accept that he requires treatment for anger management. Mr. Hamelin portrays himself as the victim. He minimizes his responsibility. He has demonstrated his complete inability or unwillingness to restrain himself from criminal conduct involving repeated and incessant unwanted and unlawful communication with domestic partners who have terminated their relationship with him. His criminal offending includes communication with former partners while in custody and under treatment.

[39] On November 28, 2014, following guilty pleas and a finding of guilt and conviction of criminal harassment and 2 charges of fail to comply with probation order involving communication with a prior domestic partner, AB, Mr. Hamelin was sentenced to a brief period of incarceration in addition to presentence custody and to a 4 year long term supervision order.

[40] It is of note that at that sentencing hearing, Mr. Hamelin resiled from his guilty pleas and maintained that he was not guilty, despite a joint submission by Crown and his defence counsel. He told the court that he rejected the joint sentence proposal and the terms being imposed upon him.

The 3 Breaches of Long-Term Supervision Order

Breach #1

[41] After he was sentenced by Justice Meijers on November 28, 2014, and had served the brief provincial jail term imposed, he commenced to serve the LTSO on February 25 or 26, 2015 at the Keele Centre. Despite a core special condition of his LTSO to report attempts to initiate intimate sexual or nonsexual friendships with females, he did not do so at any time until he was breached for failing to do so on April 22, 2015.

[42] On February 4, 2016, he was convicted in the Ontario Court of Justice for that breach.

[43] On March 1, 2016, in respect of that conviction, and having served presentence custody of 306 days, namely 10 months and one day, he was sentenced to 29 days more, for an effective sentence of 11 months. In the sentence decision of Justice Nakatsuru, it was noted that this was a breach of a core special condition. Although no one was harmed, the offence involved repeated attempts to contact a number of females. It was a designed effort. The judge noted that Mr. Hamelin had a long history of failing to comply with court orders. It was noted that this was a “pattern”.

Breach #2

[44] On March 18, 2016, Mr. Hamelin was released from provincial jail after serving the sentence for Breach #1.

[45] On March 29, 2016, he resumed serving his LTSO at the Keele Centre.

[46] On April 4, 2016, 6 days later, he went unlawfully at large.

[47] He was at large until April 12, 2016 when he was arrested, 8 days.

[48] He was sentenced on March 17, 2017 for that breach by Justice Shamai. It was noted in the decision that he had not received a drug while at Keele as had been prescribed by Dr. Pearce. Also, he had “not received any kind of contact with the mental health professional or any sort of medical professional during the early time that he was at the Keele Centre”, prior to going UAL. The court specifically noted that he had received no programming while at the South Detention Centre. There was no ability to reintegrate into the community. He was on continuous lockdown for 337 days with no access to medication. The Justice noted “I am keen that Mr. Hamelin have every opportunity to take advantage of the programming available to him for the purpose of rehabilitation and importantly, reintegration in the community. This latest breach is a breach by not staying at the Keele Centre where he says the conditions were unbearable to him and he did not have access to the medication which has been prescribed for him.”

[49] The Justice gave him credit for the 337 days spent in actual presentence custody, enhanced by 1.3/1 to 438 days, and imposed a one day jail sentence.

Breach #3

[50] Mr. Hamelin was returned to the Toronto South Detention Centre on March 17, 2017, from which he was released late in the day to continue to serve his LTSO at St. Leonard’s House in Brampton. He was told to get himself to Brampton in 3 hours and apparently given no transportation or assistance to do so. He started to walk to Brampton. After some hours, he called a friend and stayed with a friend in Barrie until he was arrested on March 28, 2017.

[51] On July 18, 2018, for that breach, he was sentenced to 1 day in jail on top of 444 days, 1 year 2 months and 18 days, pre-sentence custody.

[52] He was released back onto his LTSO to reside at Henry Trail CCC in Kingston.

[53] This was the decision of Justice Clark noted previously.

[54] The evidence is that while residing at Henry Trail, and up to the expiry of his LTSO, Mr. Hamelin was convicted of no further breaches or of causing harm to other persons.

[55] The index offences occurred some months following the expiration of the supervision and the residency at Henry Trail.

Dr. Jonathan Gray

[56] Dr. Gray is an experienced and highly qualified forensic psychiatrist. He was accepted by the court as an expert witness to give opinion evidence in the field of forensic psychiatry and, in particular, on the assessment of risk and risk management in the context of dangerous offender proceedings.

[57] Dr. Gray’s evidence is detailed, professional and comprehensive. I have considered carefully his report and testimony.

[58] He had reviewed the materials provided to him by the Crown Attorney including the Agreed Statement of Fact, transcripts of Mr. Hamelin's previous convictions and sentences, Victim Impact Statements by HN and AB, medical records from the many doctors and health care professionals who had assessed and treated Mr. Hamelin in the past, probation records, his CAS records and his criminal record. He had interviewed Mr. Hamelin in person and, as well, he had interviewed his former chaplain and friend, Ms. Astri.

[59] I have summarized Dr. Gray’s evidence using the headings in his report.

Mr. Hamelin's Version of these Offences and Prior Offences

[60] Dr. Gray stated that Mr. Hamelin justified his crimes against HN saying that he wanted his victim to feel empty, hurt and ashamed. He wanted to emotionally hurt her, to cause her to suffer some psychological harm, to make her feel exactly how he felt. He told the doctor that he felt so overwhelmed by his feelings that he did not think he would go to jail.

[61] With respect to his prior domestic partner relationship offences, Mr. Hamelin denied his guilt in large part despite the convictions.

Mr. Hamelin's Opinion on his past Treatment Interventions

[62] He denied receiving any benefit from past treatments except with respect to his acquired brain injury.

Review of Psychiatric Symptoms

[63] Mr. Hamelin denied ever being depressed and attributed his many threats of suicide to feeling stressed. He denied any anxiety disorder or symptoms of psychosis. He denied any symptoms of post traumatic stress disorder, but he had unresolved issues with respect to his mother leaving the family when he was 12 years of age.

Substance Use History

[64] There is no history of substance abuse.

Family Psychiatric History

[65] There is no history of family suicide, mental illness or substance abuse.

[66] Mr. Hamelin has had limited employment and no long term employment.

[67] Mr. Hamelin had 5 previous domestic relationships prior to the one with AB which preceded that with HN.

Future Plans

[68] His plan is to live in Wasaga Beach and develop a business building RV engines and repairing them.

[69] He states that he has no interest in pursuing relationships with women in the future. Dr. Gray is of the opinion that this is an unrealistic thought.

[70] On this point, I would note that on March 1, 2016, in regard to offences against AB, Mr. Hamelin told Justice Nataksuru that he did not want a relationship with anybody in the future.

[71] Within 2 years, he was entering into a relationship with HN.

[72] In R. v. Cook, 2017 ONSC 1434, Justice BP O’Marra found that the accused’s statement that he has changed and that his plans including no longer engaging in relationships were unrealistic relapse prevention strategies.

[73] This is the same conclusion reached by Dr. Gray, with respect to Mr. Hamelin.

Mental status examination

[74] Mr. Hamelin presented as cooperative and polite and conducted himself appropriately during the interview.

Ms. Astri

[75] She has known Mr. Hamelin for 5 years having met him as a chaplain when he was incarcerated in a provincial institution. She describes Mr. Hamelin as having suffered a lot of losses, and that he is not emotionally capable of managing a relationship. She says that he primarily needs supports for his acquired brain injury. She noted that he didn't benefit in the past from group treatment or counseling. She observed that he is not able to express when he is feeling sad but rather keeps it in.

Previous Assessments and Treatment Interventions

[76] Dr. Gray reviewed in detail the many reports outlining the previous psychological, and psychiatric assessments and reports concerning Mr. Hamelin, and the reports of other health care workers who have attempted to work with him.

[77] These many attempts to address the issues leading to his criminal conduct have not been successful and were often met with Mr. Hamelin's denial of his crimes and that he suffered from the issues being addressed. He repeatedly disengaged from the programming described.

[78] The programs included an extended stay at the St. Lawrence Valley Correctional and Treatment Institute for about a year under the psychiatric care of Dr. Cameron. He successfully completed some programs but in general he was resistant, in denial and achieved little clinical benefit.

[79] It is reported that he successfully completed the Integrated Correctional Program Model, Community Program in 2018. The program was designed to provide a rudimentary level of understanding and skill but was not designed as a replacement for the necessary institutional programs required before release into the community. He was said not to be engaged in the treatment and that the risk management plan that he developed was inadequate. He denied his convictions and allegations.

The Acquired Brain Injury, 1997

[80] Dr. Gray reviewed in detail the medical records concerning the brain injury that he suffered in this motor vehicle collision. The effects were consistent with a right frontal lobe injury, but many of his deficits were said to be premorbid in nature.

Record of Community Supervision and Summary of Charged Incidents

[81] Dr. Gray reviewed in detail the reports of Mr. Hamelin's criminal record which began in 2001.

[82] Dr. Gray noted that while Mr. Hamelin resided at the Henry Trail CCC, he was supervised by parole officer Serge Hebert. The supervision and monitoring was close and successful and included the officer communicating with Mr. Hamelin's newest domestic partner, HN. The predicate offences occurred only after the expiry of the LTSO and after HN had terminated the relationship.

DSM-5 Diagnoses

[83] Dr. Gray's opinion is that Mr. Hamelin suffers from borderline personality disorder, BPM. The criteria that he demonstrates are frantic efforts to avoid real or imagined abandonment, unstable and intense interpersonal relationships, recurrent suicidal behavior or threats, affective instability due to a marked reactivity of mood, inappropriate and intense anger and difficulty controlling anger, and transient stress related paranoid ideations and severe dissociative symptoms. Mr. Hamelin has been diagnosed with BPD by 2 other psychiatrists in the past during extended periods of hospitalization.

[84] Dr. Gray was of the opinion that both the effects of his acquired brain injury and the BPD are fixed conditions that cannot be completely ameliorated through medication. He thought it possible that Mr. Hamelin also suffered from ADHD.

Risk Assessment

[85] Mr. Hamelin cannot be scored on the commonly used actuarial risk assessment instruments due to the absence of any sexual offences or contact violent offences in his record.

[86] Dr. Gray scored him on the HCR-20 Version 3. 6 of the 10 historical factors were found to be relevant in terms of risk, namely relationships, employment, personality disorder, negative treatment response, violent attitudes and the anti social behavior associated with ex partners.

[87] Dr. Gray noted that it is highly unusual for a candidate for dangerous offender status to lack the most common risk factors including a history of physical violence, sexual abuse and substance abuse.

[88] Of the 5 clinical factors considered, Mr. Hamelin showed evidence of 3: lack of insight; instability; and treatment response, in that he continues to not see the need for any treatment and continues not to have insight into his negative behaviors. He said he was open to future treatments but does not think that they are necessary for him.

[89] All 5 of the risk management factors are relevant to Mr. Hamelin. He requires the availability of professional services in the community. He requires a living situation that is supervised such as a CCC, with a residency condition. Stress is a major future risk item. He requires personal supports which appear to be unavailable except in part through his friend Ms. Asti.

[90] Dr. Gray found Mr. Hamelin to be at high risk of committing another non-contact offence against a future partner but at low risk of actual physical aggression.

Psychopathy Checklist

[91] Although Mr. Hamelin does not meet the psychological construct of psychopathy, and therefore theoretically psychopathic traits would not present a barrier to therapy, Dr. Gray identified the other challenges to successful treatment in his case.

Dangerous Offender Designation

Pattern of behaviour

[92] It is Dr. Gray's opinion that there is a clear pattern of criminal behavior demonstrated in this case. Most of his crimes have been directed against ex-partners upon termination by them of the relationship. It consists primarily of criminal harassment through persistent and repeated communication known to be unwanted and despite police intervention, court order and even jail. He denies doing so and he denies any responsibility. To date, treatments directed at such conduct, including anger management, have not controlled the risk.

[93] It is uncertain whether burnout with age will occur, given the combination of his acquired brain injury and BPD.

[94] Dr. Gray is of the opinion, in particular in the face of the victim impact statements by AB and HN that Mr. Hamelin's future risk includes causing severe psychological damage to future former partners. He notes that the criminality appears to be escalating. It is now directed at causing harm to the victim rather than attempting reconciliation. The present crimes show more abusive, degrading and threatening unwanted contact directed at both the victim and her employer and dance troupe.

[95] His impulsivity and explosive anger fueling his behavior is another aspect of BPD which, combined with his frontal lobe damage, likely worsens these traits and may make them more enduring, that is, not amenable to treatment.

High Likelihood of Recidivism

[96] Dr. Gray's opinion is that the history of the persistence of the criminal behavior overtime against former partners with severe consequences suggests a high risk that this will persist in the future.

[97] His lack of amenability to treatment is another factor suggesting high risk and it cannot be said that the trend to burnout may occur.

Mr. Hamelin's Behaviour is Intractable

[98] Dr. Gray explains that there is abundant psychiatric evidence to support the legal question of Mr. Hamelin's risk being considered intractable. He is highly unlikely to develop the internal controls with time and treatment for him to manage his offending behaviors.

Can the risk be managed?

Opinion and Recommendations on Release Conditions and their Feasibility

[99] Dr. Gray is of the opinion that if Mr. Hamelin were to reside in the community, a number of safeguards would be necessary to manage the risk that he poses:

• He would require as part of a federal penitentiary term to participate in recommended group or individual treatment offered by CSC. The main issues to be addressed would include managing powerful emotions, healthy relationships and making good decisions. It is problematic that he denies having a problem with anger.

• If released into the community, he should be released to a supervised residence such as a CCC, with a dedicated probation officer.

• He requires ongoing assistance in dealing with the effects of his acquired brain injury.

• He requires ongoing counseling and therapy in the community including the full program of cognitive behavioral therapy (CBT) and dialectical behavioral therapy (DBT).

• He would benefit from medication including anti anxiety and mood stabilizing medications.

• He requires the consistent involvement of a psychiatrist to manage his medications and help direct him to appropriate psychological therapy.

• The final area needing management is his history of dysfunctional relationships particularly upon their dissolution. Any such relationships must be closely monitored by his probation officers. For the reasons set out in his report at page 67, it is Dr. Gray's opinion that the likelihood of control of Mr. Hamelin's risk of harassing future ex partners is relatively low even with the necessary risk management interventions.

Cross examination

[100] Dr. Gray was unable to say whether the normal declining trajectory of persons suffering from Mr. Hamelin’s challenges would occur in view of the combination of both the acquired brain injury and the borderline personality disorder. He agreed that it is unknown how the future is going to play out. “I don’t think it’s going to make it any faster, so it’s either no effects or it means it lasts longer.”

[101] In his cross-examination of Dr. Gray, defence counsel identified treatments and programming and counselling that had been offered to Mr. Hamelin but were not effectively offered, therapies that had not been offered to him and treatment and counselling and medication that hadn’t been offered to him but could have been of some benefit. The degree or extent of any benefit arising therefrom was not identified.

[102] He testified that apart from a genetic component causing the borderline personality disorder, the only possible triggering event for it may have been the abandonment of Mr. Hamelin and his family by his mother when he was age 12. It appears that no treatment, counselling or therapy has been offered to him to address and resolve this issue. Dr. Gray pointed out that such a trauma would not normally stand out as being particularly traumatic beyond the ordinary.

[103] It was also identified that it does not appear that he has had any specific counselling or therapy to help them understand what border line personality disorder is and how to deal with it. Although Dr. Gray suggested that that would be pretty standard group therapy.

[104] Dr. Gray agreed that the medication Lamotrigine might be beneficial to Mr. Hamelin in dealing with the symptoms arising from his borderline personality disorder. That would be something that he would prescribe. He agreed that it was at least worth trying and might be very well suited for treating Mr. Hamelin’s borderline personality disorder without the associated side effects.

[105] Dr. Gray was of the opinion that Mr. Hamelin would benefit from a whole course of cognitive behavioural therapy (CBT) and of dialectical behavioural therapy (DBT). He has not had these therapies. It appears that he had one session of modified CBT and one session of DBT. Dr. Gray acknowledged that Mr. Hamelin has not had the opportunity for a full course of a good DBT program with a good facilitator and qualified staff. He agreed that CBT and DBT therapy are cornerstones of therapy for people with borderline personality disorders. He agreed that a comprehensive CBT and DBT therapeutic program would be the best thing for someone suffering from Mr. Hamelin’s disorder. He stated that DBT would be the most useful for Mr. Hamelin. But with respect to the remission rates for a person suffering from borderline personality disorder after having the benefit of DBT, Dr. Gray could only say that it must be greater than zero.

[106] Dr. Gray reported that Mr. Hamelin told him that he would do the high intensity ICPM if it was mandated within the penitentiary. He told Dr. Gray he would engage in that therapy.

[107] Dr. Gray agreed that it does not appear that there has been any treatment with respect to the impact of Mr. Hamelin’s hearing disability on him, for example making friends, participating in class, self-esteem, participate in Society or being successful in school. Dr. Gray said that that could be a potential avenue to explore.

[108] Dr. Gray had noted that Mr. Hamelin did have the benefit of professional assistance with respect to his acquired brain injury, and he engaged in it, but it does not appear that anyone has ever talk to him about the impact of the combination of his brain injury, his hearing impairment in combination with the borderline personality disorder.

[109] Dr. Gray acknowledged that there was a gap in Mr. Hamelin’s criminal record between 2002 and 2011. He acknowledged that it does not appear that the reasons for this apparent success have been explored professionally. He testified that to some extent this gap could be explained by the lower intensity and shorter duration of the relationships during that timeframe.

[110] Dr. Gray noted that the nature of Mr. Hamelin’s offending does not require that he be in close physical proximity to the victim. Hence previous court orders, probation, and jail have not been sufficient to manage the risk he presents.

[111] Dr. Gray agreed that to her Hamelin does not do well in group therapy. Group therapy has formed a large part of that which has been offered to him.

[112] Dr. Gray noted that the ICPM, community-based, that Mr. Hamelin participated in while at Henry Trail was a group program and dealt with topics that didn’t involve Mr. Hamelin’s problem. He agreed that a lot of that content might not have been relevant to Mr. Hamelin.

[113] Dr. Gray noted that art therapy could be helpful for Mr. Hamelin.

[114] Dr. Gray agreed that the residential condition at Henry Trail combined with the close supervision provided by probation officer Serge Hebert resulted in no criminal charges by Mr. Hamelin while in play.

[115] Dr. Gray agreed that the therapy, psychiatric treatment, medication and programming identified by him and available in the CSC system are designed to provide people like Mr. Hamelin with the skills to control his behaviour. These treatments are designed to help offenders gain insight into their problems.

[116] His opinion that Mr. Hamelin is likely to cause severe psychological injury in the future is more than a 50% risk even if all of the foregoing treatments, therapies and programming were offered to him.

Stephen Eros

[117] He has been the program manager and facilitator for CSC since 2018. He is presently the program manager at Warkworth Institution and is the acting regional manager for both the indigenous and non-indigenous programming.

[118] He described the intake process for an inmate sentenced to federal penitentiary. The assessment takes 4 to 6 months to establish a correctional plan for the inmate. The integrated correctional programming module does not specifically address individual offenders for sexual abuse or physical violence rather there is one program delivered to all of these offenders. The integrated correctional program module, multi target, addresses domestic violence, substance abuse and general crime but not sexual offending. He testified that the module uses cognitive behavioral therapy.

[119] There are two phases. In the primer phase, for non sex offenders, there are 10 sessions which begin by looking at the year prior to the offending to understand the link of the lifestyle to the criminal conduct. This is in group sessions with 10 participants for each facilitator. If an offender does not do well in a group, there are special facilitators who will assist with one-on-one additional help. In the primer phase, the criminal risk indicator is determined, and the offender will be classified as needing the high risk program, moderate risk or low risk.

[120] In the moderate risk program, there are 50 sessions, 2 to 2 1/2 hours each. In the high risk program, there are 96 sessions and more time is spent with the offenders.

[121] He described the 5 modules that make up the high intensity program.

[122] There is also a motivational module which has three streams. The support stream assists offenders struggling in the program for whatever reason. The refuser module deals with offenders who do not want to participate. The dropout module deals with those offenders who simply quit the program. The motivational module facilitators can engage throughout or at any point in the high intensity programming. Mental health services can be accessed if required. CBT and elements of DBT are part of the ICPM.

[123] The programming offered within the institution is significantly more intensive than the programming offered in the community. For example, for the moderate risk program there are only 16 sessions offered in the community compared to the 50 sessions offered within the institution. It is noted that Mr. Hamelin has been exposed to the ICPM, Community programming. He offended against HN thereafter, in an escalating way, compared to his previous offending.

[124] There are also community maintenance programs, 12 sessions, once a week.

[125] He explained that within the institution, programming is offered on a prioritization basis tied to release eligibility dates. Those with the earliest release eligibility dates get programming first. He testified that offenders requiring the high intensity programming need to be in the federal penitentiary for at least six months after placement into the parent institution, following intake. Ms. Howie testified that a sentence of 3 years in the penitentiary would assure the offender would have time to complete the high intensity programming. Like Ms. Howie, Mr. Eros agreed that with a 2-3 year federal sentence, a person could get priority and be able to finish the high intensity program before statutory release and likely before his parole eligibility dates.

[126] He testified that within the institution, the offender has the opportunity to complete grade 12 and secure some employment. Post secondary education opportunities are also available. The offender can do both programming and school or work each day.

[127] He testified that those with learning disabilities can be assisted by the motivational module facilitator or there is an adaptive treatment program available at the regional treatment centres.

Cross examination

[128] With respect to offenders such as Mr. Hamelin, who suffer from BPD, ABI and ADHD, in the high intensity programming, each facilitator works with each individual in the group. Attempts are made to accommodate the offender’s challenges including engaging mental health services. The program can be tailored to the individual needs arising from disability.

[129] He testified that CBT is a module that is delivered. There are also elements of DBT delivered.

[130] He testified that the programming can accommodate cognitive and hearing challenges.

[131] He testified that the programming could address Dr. Gray's opinion that Mr. Hamelin requires a full program of CBT and DBT to the extent of being helpful. He has seen the results.

Jennifer Howie

[132] She is an experienced parole officer supervisor, and is presently the acting area director.

[133] She described the intake procedure for an offender sentenced to a federal penitentiary. With the information that is obtained during intake, the parole officer develops a correctional plan suited for the inmate. The correctional plan is a living document which is updated as needed to accommodate changes in needs or risk or situations, for example, completion of a program or application for release on parole or statutory release. The correctional plan identifies programming needs and intervention needs.

[134] For an offender sentenced to a provincial sentence followed by a LTSO, there is not as full or comprehensive an assessment carried out. The assessment is carried out by a community parole officer. The offender cannot be offered the high intensity programs that are available in the federal institutions if sentenced to provincial time. The community programming is about 10 to 14 sessions compared to the federal high intensity programs which are comprised of 100 or more sessions.

[135] As did Mr. Eros, she described that entry into the high intensity program is prioritized based on the inmate’s release eligibility dates. The shorter the sentence, the sooner the offender is able to access the high intensity programming. For a dangerous offender with an indeterminate sentence, his eligibility date is set at 7 years from date of arrest, therefore, he would be less of a priority for programming compared to an offender serving a shorter federal sentence. She stated that all inmates are offered programming. If an offender declines programming, he is bumped from his priority and the program is offered to the next inmate in line.

[136] The parole officer makes recommendations to the Parole Board of Canada for conditions, for example, release on day parole or to a CCC.

[137] She described the procedures that occur if an inmate breaches or is suspected of breaching a condition imposed by the Parole Board.

[138] She testified that the highest level of supervision within a CCC, for example, on a LTSO, with the residence condition, consists of a meeting with the parole officer 8 times per month, that is 2 times per week. She said that if an assessment of need and intervention requires more frequent supervision, that is available. In the CCC, the inmate is assigned to a designated parole officer for the duration of his residency condition. That parole officer has a caseload of 10 inmates. There are 40 beds at Henry Trail with 4 parole officers.

[139] She explained that a residency condition on a LTSO would have the inmate living either in a CRF which is privately operated, or in a CCC, which is operated by CSC. It is the CRF that decides whether it will accept a given inmate, whereas the CCC must find a bed for the inmate. A sentencing judge would not know which type of residence the offender would be accepted into or assigned to.

[140] She testified that there are many programs available at the Henry Trail residence, a CCC.

Cross examination

[141] The point was made that as a parole officer, she has supervised many inmates serving a LTSO, but she cannot remember supervising any dangerous offender on parole. Presumably, the point is that few dangerous offenders serving indeterminate sentences achieve parole.

[142] The guiding principle for CSC is the rehabilitation and reintegration of the inmate back into the community. The paramount consideration is the safety of the public.

[143] She testified that the parole officers are trained and supervised to achieve these goals with respect to the various challenges that inmates present, including recidivism, denial, repeat offenders and personality disorders.

[144] She testified that if an offender was sentenced to a 2 year federal term of imprisonment, there would be sufficient time to permit that offender to complete a high intensity program before being released on his LTSO. Obviously, the longer the sentence of federal imprisonment, the more time there would be to ensure completion of the high intensity program. She testified that a 3 year penitentiary term would ensure completion of the ICPM High Intensity. The high intensity programming, multi target, is available at most institutions.

[145] If an inmate who had been sentenced to federal imprisonment entered the intake process with a comprehensive psychiatric assessment and report as to needs and risk such as Dr. Gray’s report in Mr. Hamelin’s case, the parole officer would accept that opinion and report and not require a further in-house psychiatric assessment when putting together the correctional plan. This eliminates that delay.

[146] An inmate could be referred to the regional treatment centre for psychiatric treatment based on the psychiatric evaluation received from the court proceedings.

[147] She gave evidence with respect to the scenario of an inmate attending a community AA program who would obviously meet other people with diverse backgrounds and issues. The inmate is not supervised on such outings. She acknowledged that this would lead to opportunity for friendships and relationships to develop. To supervise for example, Mr. Hamelin, given his background offence cycle, the parole officer would rely on his self reporting. There should be a condition that he reports attempting to initiate and initiating friendships and relationships. The parole officer can monitor his cell phone including texts although they are not skilled at extracting all of the information. The parole officer can insist on interviewing the new partner so that she is able to make an informed decision and if there were any reluctance on the offender’s part or the partner’s part to be forthcoming, the parole officer could issue a local instruction and recommend a change in special condition prohibiting the contact.

[148] They have had conditions prohibiting cell phone and Internet use.

[149] It is required that the parole officer meet with the offender at the outset of supervision to explain the conditions of the LTSO and how the parole officer is going to supervise and enforce those conditions. This is documented in the parole officer notes for the inmate file.

[150] When asked as to language permitting supervision of the development of friendships and relationships for example through AA meetings and coffee privately thereafter, Ms. Howe referred to the language at Exhibit 4, Tab 34, “Immediately report any attempts to initiate intimate sexual and non sexual friendships females to your parole Supervisor” and “Immediately report all intimate sexual and nonsexual relationships and friendships with females to your parole supervisor”.

[151] It is to be noted that at Tab 35 is a parole board decision extending Mr. Hamelin’s residency condition for an additional 150 days which states, “There are no leave privileges. You must return to the facility nightly”. This is of concern as it appears to permit free access to the community during the day on an unsupervised basis.

[152] Ms. Howie would tell the offender that he must disclose to her all of the information that she requires with respect to a new proposed relationship and that she will be following up with the proposed partner. He must disclose to a proposed friend all of his relevant background information. When she follows up with the proposed partner, she makes sure that the offender has told her all of the necessary background information and if he has not done so she fills in the gaps. She says that in doing so she balances the public safety requirement against the offender’s privacy rights. The parole officer has the power to prohibit inappropriate contact initially through local instruction which then can be turned into a special condition by the Parole Board on the input of the parole officer.

[153] The parole officer would advise the inmate that the context of the word “relationship” in a special condition contemplates, the exchange of personal information, seeing each other regularly or seeing each other outside of the permitted group, for example AA, and going for coffee together after such a meeting.

Karen Thomson

[154] Mrs. Thomson has been the Regional Manager of conditional release programs for the Parole Board of Canada since October of 2018. She has worked with the parole board including as a senior case review officer since 2001.

[155] For a dangerous offender sentenced to an indeterminate sentence, the first eligibility review for day or full parole is 7 years from the date of arrest. That inmate could apply 3 years prior to that for day parole. This timing means that Mr. Hamelin could apply immediately upon committal to a penitentiary for these offences. That inmate’s eligibility for day and full parole is reviewed every second year, thereafter.

[156] She testified that in imposing special conditions on a particular inmate the parole board considers all of the information that it receives from the court after sentencing including psychiatric reports, the judge’s reasons, criminal record, victim impact statements, information concerning any family support and the inmate’s perspective on his offences. CSC develops the correctional plan which is updated from time to time as needed with respect to risk and necessary interventions. Special conditions can also be updated as necessary as is seen in the materials where the parole board extended the residential requirement for a further 150 days in 2018. (Ex.4, Tab 35).

[157] Psychiatric reports are required for indeterminate sentences. These must be updated every two years to coincide with the two year release eligibility review.

[158] She explained how victims are entitled for notice of release review and to provide input, attend hearings, request conditions, and receive copies of parole board decisions.

[159] At the current time, the residency condition extends to a maximum of 365 days for a person on a LTSO. That can be extended if requested by CSC. If CSC does not request the extension, then the condition expires. The residency condition could be extended yearly for up to the full duration of the LTSO. This appears to have been the case for Mr. Hamelin’s first LTSO, although it was interrupted by periods of incarceration for breaches. It was extended for an additional 150 days.

[160] An inmate on a residency condition, LTSO, can earn up to 3 overnight leaves outside the CCC.

Cross examination

[161] She testified that the special conditions imposed by the parole board are those that are reasonable and necessary to protect society and to promote the rehabilitation and reintegration of the offender into society. The protection of the public is paramount. The parole board has broad powers to promote these principles.

[162] Special conditions that can be imposed by the parole board include prohibiting association with vulnerable persons in the community if that is part of the offence cycle, confined to the CCC unless in the company of a staff member, and report friendships and relationships. The parole board has the power, theoretically, to impose a condition of having no relationship whatsoever with a female at all if such a condition was reasonable and necessary to protect Society and to promote the rehabilitation and reintegration of the offender into society.

[163] There are 692 dangerous offenders serving indeterminate sentences in Canada. Of these, 21 are on day parole, 36 are on full parole and 4 others were on parole but have been deported. The point is that only 8.8% of the dangerous offenders sentenced to indeterminate sentences have achieved parole. It is very difficult for dangerous offenders sentenced to an indeterminate sentence to achieve release on parole. On average, it takes such an offender about 16.7 years from date of arrest to his first grant of day parole.

[164] It is only the Parole Board of Canada which has the power to apply to a Court to reduce the duration of a LTSO. The offender has no power to do that.

Institutional Records

No Success with Previous Treatment

[165] As stated by Dr. Gray, in part, Mr. Hamelin reported to him that prior treatment opportunities, other than for his ABI, were not helpful and of no benefit to him.

[166] The CSC Assessment for Decision dated October 11, 2018, recommended extending the residence condition at Henry Trail. It reported that his risk to public is considered to be relatively high, and that he remained a high risk to reoffend:

“The subject started the ICPM program on October 1^st, 2018 given at a frequency of 3 sessions a week. He has completed module 1 of this program. To date his participation is rated as very negative. Some of this is caused by not having the proper hearing aid equipment, however most of his lack of participation is due to a lack of motivation.

As mentioned above Mr. Hamelin is considered to not be engaged in his Correctional Plan. However due to his hearing impairment and lack of motivation the long term benefits of his rehabilitation at HTCCC have yet to be tested and his adherence to positive rehabilitation will not be fully demonstrated until Hamelin fully integrates into the community.

Given the offender’s abysmal performance while on past supervision it is premature to remove the residency condition at this time. Sufficient reduction of risk has not been achieved during his current residency period at HTCCC. Therefore, a prolongation of his residency condition is being recommended. … The subject still requires a very structured and closely monitored release into the community which requires the prolongation of his current residency condition to ensure public safety.

As mentioned above the subject remains a high risk to reoffend and in addition has no alternate residence nor has he made plans in the event his residency condition is removed.”

[167] The residency condition was extended to the end of his LTSO in February 2019.

[168] Mr. Hamelin was offered the ICPM, Community Based, from October 1 to November 26, 2018 while a resident at Henry Trail.

[169] The Program Performance Report Final prepared in December 2018 reported:

“Mr. Hamelin participated in the ICPM Community Program from October 1, 2018 to November 26, 2018. During interview he was honest with his discontent to participate in correctional programming and his insistence of his innocence of his convictions in correctional programming and his insistence of his innocence of his convictions resulting in his LTSO e.g. partner violence/aggression, criminal harassment against two prior intimate partners. Offender Management System reports (Doucette 2014-12-09) indicate these behaviours of narcissistic qualities, telling stories not based on fact or goal directed. His presentations and verbalizations noted in these reports indicate limitations on his cognitive abilities with various mood presentations and showing attention deficits. CPO considered these noted historical and current presentations for his group involvement. Other documented responsivity (impacts on his ability to learn) issues were also considered as Mr. Hamelin self declared his hearing impairment. Accommodations included use of the visual SMARTBOARD for worksheets, extra time for homework, small group setting, frequent breaks and the offer of a volunteer to assist him with homework and repletion. Mr. Hamelin declined the offer of a volunteer and managed with most of his homework assignments. He had to be redirected in his responses to include how he was using the skills, not his new girlfriend’s use which was standard in his contributions. This may be an indicator of his denial to accept his criminal behaviours and consequences and/or responsivity presentations. His initial presentations showed marked lack of engagement, presenting with distracting behaviours not program related and attitudes such as: “I’m not interested, I don’t think the same was as other people, I have to have interest and feelings for the work, program will do nothing for me, I want nothing to do with nothing, I don’t want to be here. I don’t want to understand etc.” Despite motivational techniques his presentations in the first part of the program noted the aforementioned. In the second part of the program his presentations changed dramatically to include engagement, eye contact, verbal participation, trying to complete homework assignments. The latter part of the program near the finish his engagement reverted back to his previous disengagement, I don’t care attitude, I have disabilities, I can’t do program/homework which may be due to separation from the program and ongoing responsivity challenges. It is noted that his responsivity challenges noted are complex and variable with primary emotional as well as physical impairments. To his credit he did present as meaningfully engagement mid to end of program which is seen as a positive.

At the end of the program, Mr. Hamelin’s rated ability/commitment to use the skills to solve problems and challenges effectively is maintained as Needs a lot of Improvement based on pre and post rates.

… Based on the analysis of each of Mr. Hamelin’s personal targets, it is determined that his current overall ability and commitment to use the skills required to manage his various risk factors is assessed as unchanged to Needs a lot of Improvement deferring to the lowest rating. He did show some promise mid program when his mood was good and his relationship was good, but overall he remains a requiring a high level of proficiency in his understanding and application. He is credited with getting out of the halfway house, finding rewarding activities and accessing some community supports to support his freedom and personal control quadrant. Overall lifestyle balance in all areas is encouraged. He is also credited with his participation in program which allows for the possibility of some information gain with the hope of moving to an improved stage of change. Mid program he showed happier emotions, confidence and engagement; however, his retention and internalization of his concepts introduced is undetermined. Post program, he reverted to his disengaged, all or nothing attitude of not needing the program, not wanting to learn anything. His mental health and physical health challenges will be an ongoing variable effecting his achievements towards positive change.”

[170] Finally, on this point, Dr. Gray noted:

“I note the last note in the Casework record was by a correctional program officer on February 15, 2019. She contacted him to meet and review his self-management plans prior to the expiration of his LTSO on February 18. She wrote that Mr. Hamelin declined the meeting,

"stating that he could not see any benefits to such meeting and that he is 'not even remotely interested' in meeting for this purpose. He offered he has 'everything figured out' and he is prepared for all aspect of reintegration. He offered that he does not need any help or suggestions on how to manage effectively his risk factors as he opined he does not 'have any risk factors in the community' and he has 'everything lined up' for success including a place to stay and a job".”

[171] Despite the brief success at not reoffending while at Henry Trail while subject to close supervision, the index offences were committed within 9 months of the expiration of his LTSO.

Mr. Hamelin Addressed the Court

[172] Following counsel submissions on February 5, 2024, Mr. Hamelin addressed the Court. He said that he was sorry for causing emotional hurt and embarrassment to AB and HN. He said he didn’t want that to happen again, and that he was wrong. He said he was sorry and that he needed help.

Applicable Legal Principles

[173] In her decision in R. v. Medford, 2019 ONSC 5065, Justice Molloy sets out the legal principles governing the dangerous offender legislation as follows:

8 In R. v. Boutilier, the Supreme Court of Canada described the dangerous offender regime as a "two-stage" process, with the first stage being a consideration of whether the offender meets the criteria under s. 753(1) of the Criminal Code for designation as a dangerous offender (the designation stage), and the second stage involving a determination of what sentence to impose under s. 753 (4) and (4.1) of the Code (the penalty stage).

9 Thus, a finding that an offender meets one of the four criteria for designation as a dangerous offender is only the first stage of the analysis. The dangerous offender designation is one of the most onerous sentences that can be imposed in our criminal justice system. It involves imposing a sentence of an indeterminate length, the actual length of imprisonment being dependent upon review by the National Parole Board. The first review is at seven years and reviews are then conducted every two years thereafter. The offender will only be released if the Parole Board is satisfied that the risk he represents can be controlled in the community. The indeterminate nature of the sentence could, in theory, mean the offender is incarcerated for the rest of his natural life. Because this is a severe sentence, its imposition does not follow merely because specified criteria are met. The sentencing judge must not make such a designation if a lesser penalty would still satisfy the general principles and objectives of sentencing, including protection of the public and whether it is possible to impose a less restrictive sentence that would still satisfy the other objectives of sentencing.

10 Upon finding at the first stage that an offender meets one or more of the requirements for a dangerous offender designation, the sentencing judge has three options, as set out in s. 753(4) as follows:

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

11 However, option (c) (a regular determinate sentence) and option (b) (a long-term offender designation) cannot be imposed unless the evidence establishes a reasonable expectation that such a sentence will adequately protect the public. Section 753(4.1) states:

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.

12 The Supreme Court of Canada considered the constitutionality of the dangerous offender provisions of the Criminal Code in its landmark decision in R. v. Lyons, and recently (in Boutilier) revisited and affirmed its conclusions in Lyons.

13 In Lyons, and again in Boutilier, the Supreme Court held that there are four criteria for the dangerous offender designation: (1) a conviction for a serious personal injury offence (which is an objective test); (2) evidence of a broader pattern of violence beyond the predicate offence; (3) a high likelihood of harmful recidivism; and (4) a requirement that the pattern of conduct is substantially or pathologically intractable. Of these, the last two criteria are forward looking, the issue being the future risk represented by the offender.

14 The burden is on the Crown to establish that the dangerous offender criteria have been met and that an indeterminate sentence should be imposed. The criteria must be established beyond a reasonable doubt, including the requirement of the likelihood of reoffending in the future. Predicting the future can never be an exercise of certainty. The Supreme Court in Lyons dealt with this apparent conundrum as follows:

. . . However, as Holmes has reminded us, the life of the law has not been logic: it has been experience. The criminal law must operate in a world governed by practical considerations rather than abstract logic and, as a matter of practicality, the most that can be established in a future context is a likelihood of certain events occurring. To doubt this conclusion is, in actuality, to doubt the validity of the legislative objectives embodied in Part XXI, for to require certainty in such matters would be tantamount to rendering the entire process ineffective.

Moreover, I am not convinced, even as a matter of logic, that the appellant's submission is sound. It seems to me that a "likelihood" of specified future conduct occurring is the finding of fact required to be established; it is not, at one and the same time, the means of proving that fact. Logically, it seems clear to me that an individual can be found to constitute a threat to society without insisting that this require the court to assert an ability to predict the future. I do not find it illogical for a court to assert that it is satisfied beyond a reasonable doubt that the test of dangerousness has been met, that there exists a certain potential for harm. That this is really only an apparent paradox is aptly captured by Morden J. in R. v. Knight (1975), 1975 1424 (ON SC), 27 C.C.C. (2d) 343 (Ont. H.C.), at p. 356 :

I wish to make it clear that when I refer to the requisite standard of proof respecting likelihood I am not imposing on myself an obligation to find it proven beyond a reasonable doubt that certain events will happen in the future--this, in the nature of things would be impossible in practically every case --but I do refer to the quality and strength of the evidence of past and present facts together with the expert opinion thereon, as an existing basis for finding present likelihood of future conduct.

15 In a more recent decision, Code J. described the "likelihood" analysis in the following terms, which I adopt:

The one difficult issue, in relation to the s. 753(1)(a) and (b) statutory tests, is whether the requisite "likelihood" of re-offending in the future has been established. Predicting future conduct is notoriously difficult and the exact meaning of the s. 753 "likelihood" test is subtle. The ordinary dictionary meaning of the word "likelihood", as well as its normal legal usage, is "probability", that is, something more than mere "possibility". See: The New Shorter Oxford English Dictionary, Oxford University Press 1993, Vol. 1, p. 1588; Black's Law Dictionary, 9th Ed. 2009, at p. 1012; D.A. Dukelow, Dictionary of Canadian Law, 3rd Ed. 2004, at p. 723; R. v. H. (J.T.), 2002 NSCA 138, 170 C.C.C. (3d) 405 at paras. 68-75 and 101-4 (N.S.C.A.). When applying this meaning to the "likelihood" test found in s. 753, the courts have stressed that it refers to probable "risk" or "potential for harm", as a present fact, rather than to proof of a future event which would be an impossibility.

16 The Supreme Court in Boutilier defined "intractable" conduct as "behavior that the offender is unable to surmount." As already stated, this is a prospective analysis. Rather than merely looking at whether the offender's conduct has been intractable in the past, the sentencing judge must be satisfied that this will be the case into the future.

17 Expert psychiatric evidence is of invaluable assistance to the sentencing judge in making decisions under the dangerous and long-term offender provisions of the Criminal Code. Indeed, at the initiation of the process, an assessment by a psychiatrist is mandated. However, ultimately the decision as to whether the criteria have been met, and whether the designation should be made, rests with the trial judge. If the psychiatrist expresses an opinion one way or the other on any of the criteria (e.g. degree of future risk), that opinion is not binding on the trial judge. In this regard, I repeat what I wrote in an earlier case, as follows:

In determining the likelihood of risk of reoffence and the possibility of controlling that risk in the community, it is relevant for the judge to take into account the expert opinion evidence of psychiatrists: R. v. Lyons at paras. 97-100. That is not to say that the trial judge is bound to accept the opinion of one psychiatrist or the other, but rather that the expert evidence is relevant to the judge's inquiry, with determinations as to the weight and reliability of that evidence left to the judge: R. v. Currie, 1997 347 (SCC), [1997] 2 S.C.R. 260. In this regard, the Supreme Court in R. v. Lyons referred with approval (at para 98) to the following "common sense observations" of Ewaschuk J. in Re Moore (1984), 1984 2132 (ON SC), 10 C.C.C. (3d) 306 (Ont.H.C.) at 310-311:

I accept the submission that the evidence of a psychiatrist, psychologist or criminologist is at times highly speculative and in certain instances a lay person is in as good a position to make a prediction as to future dangerousness. In the final say, the court, however, must be so satisfied and not the expert witnesses. That is not to say that the experts may not assist the court, especially as to whether the offender currently suffers from a psychological disorder, e.g. psychopathy, which may be relevant to the likelihood of future dangerous conduct.

18 The overarching purpose of the dangerous offender provisions is the protection of society from the risk presented by violent offenders at risk of reoffending. As stated by the Supreme Court of Canada in R. v. Jones:

. . . The overriding aim is not the punishment of the offender but the prevention of future violence through the imposition of an indeterminate sentence. An indeterminate sentence is not an unlimited sentence. If, in the case at hand, the psychiatrists testifying on behalf of the accused are correct in their assessment that Mr. Jones will be fit to be released in ten years, then he will be liberated at that time. The offender faces incarceration only for the period of time that he poses a serious risk to the safety of society. In the interim, it is hoped that he will receive treatment that will assist him in controlling his conduct. To release a dangerous offender while he remains unable to control his actions serves neither the interests of the offender nor those of society.

[Emphasis added]

19 Although an indeterminate sentence may seem harsh, if it is required in order to protect society, then it should be imposed. The Ontario Court of Appeal held in R. v. G.L.:

As I have indicated, the overriding purpose of the dangerous and long-term offender regimes is the protection of the public. Thus, "real world" resourcing limitations cannot be ignored or minimized where to do so would endanger public safety. The court is required on a dangerous offender application to balance the liberty interests of an accused with the risk to public safety that will arise on the release of the accused into the community. That balancing exercise is informed by this fundamental principle: in a contest between an individual offender's interest in invoking the long-term offender provisions of the Code and the protection of the public, the latter must prevail. This accords, in my opinion, with the intention of Parliament as expressed in the dangerous and long-term offender provisions of the Code, and in the Corrections and Conditional Release Act.

[Emphasis added]

[174] In R. v. Boutilier, 2017 SCC 64, the Court states:

13 The dangerous offender scheme is designed as a "two stage" process.

14 Section 753(1) lists the statutory requirements that must be met before a court can designate an offender as dangerous ("designation stage"):

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 [page950] 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,

15 Subsections (4) and (4.1) of s. 753 relate to the sentencing of a dangerous offender ("penalty stage"):

(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

[175] With respect to the Designation Stage, the court states:

17 The Crown must demonstrate two elements to obtain a designation of dangerousness resulting from violent behaviour. First, the offence for which the offender has been convicted must be "a serious personal injury offence": s. 753(1)(a). This first criterion is objective. There is no room for judicial discretion, since s. 752 defines the list of serious personal injury offences.

18 Second, the offender must represent "a threat to the life, safety or physical or mental well-being of other persons". This second element, the requisite threat level, requires that the judge evaluate the threat posed by the offender on the basis of evidence establishing one of the following three violent patterns of conduct:

[176] The court continued,

26 In Lyons, Justice La Forest read the objective element of the designation - the requirement that the predicate offence be a "serious personal injury offence" - together with the subjective element - the "threat" assessment - and concluded that four criteria were "explicit" from the language of s. 753(1): (1) the offender has been convicted of, and has to be sentenced for, a "serious personal injury offence"; (2) this predicate offence is part of a [page955] broader pattern of violence; (3) there is a high likelihood of harmful recidivism; and (4) the violent conduct is intractable (p. 338). The last three criteria are part of the assessment of the "threat" posed by the offender. The last two of these are future-oriented, and Justice La Forest explained them as follows:

Thirdly, it must be established that the pattern of conduct is very likely to continue and to result in the kind of suffering against which the section seeks to protect, namely, conduct endangering the life, safety or physical well-being of others or, in the case of sexual offences, conduct causing injury, pain or other evil to other persons. Also explicit in one form or another in each subparagraph of s. [688, now 753] is the requirement that the court must be satisfied that the pattern of conduct is substantially or pathologically intractable. [Emphasis added]

27 … Before designating a dangerous offender, a sentencing judge must still be satisfied on the evidence that the offender poses a high likelihood of harmful recidivism and that his or her conduct is intractable. I understand "intractable" conduct as meaning behaviour that the offender is unable to surmount. Through these two criteria, Parliament requires sentencing judges to conduct a prospective assessment of dangerousness.

[177] Of particular relevance to Mr. Hamelin’s counsel’s submissions in this case, is the court’s comments as follows:

31 I respectfully disagree with this conclusion. As I will discuss below, the purposes of prospective evidence at the designation and sentencing stages are different. The designation stage is concerned with assessing the future threat posed by an offender. The penalty stage is concerned with imposing the appropriate sentence to manage the established threat. Though evidence may establish that an offender is unable to surmount his or her violent conduct, the sentencing judge must, at the penalty stage, turn his or her mind to whether the risk arising from the offender's behaviour can be adequately managed outside of an indeterminate sentence.

45 The same prospective evidence of treatability plays a different role at the different stages of the judge's decision-making process. At the designation stage, treatability informs the decision on the threat posed by an offender, whereas at the penalty stage, it helps determine the appropriate sentence to manage this threat. Thus, offenders 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. However, even 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.

46 In sum, a finding of dangerousness has always required that the Crown demonstrate, beyond a reasonable doubt, a high likelihood of harmful recidivism and the intractability of the violent pattern of conduct. A prospective assessment of dangerousness ensures that only offenders who pose a tremendous future risk are designated as dangerous and face the possibility of being sentenced to an indeterminate detention. This necessarily involves the consideration of future treatment prospects. …

Analysis

Designation Stage

Serious Personal Injury Offence

[178] At this first stage, the burden of proof on the Crown is proof beyond a reasonable doubt.

[179] The first step in determining whether Mr. Hamelin meets the criteria for designation as a dangerous offender is to consider whether he has committed a “serious personal injury offence”. Section 752 of the Criminal Code defines “serious personal injury offence,” so far as is relevant to Mr. Hamelin's case, as an indictable offence involving conduct “likely to inflict severe psychological damage on another person, and for which the offender may be sentenced to imprisonment for 10 years or more.”

[180] Defence counsel for Mr. Hamelin does not strongly dispute that the criminal harassment against HN meets the definition of a serious personal injury offence.

[181] Justice Meijers in sentencing Mr. Hamelin on November 28, 2014, found that the criminal harassment against AB, Mr. Hamelin’s prior victim, amounted to a serious personal injury offence. Justice Meijers stated, “It affects the very structure of their lives. It affects their living arrangements. It affects their family. It affects their jobs (and in the case of HN, her volunteer work). It affects how they interact with other people, people they haven’t met, and increases suspicion and makes them live in fear, and brings fear and uncertainty to all aspects of their life.”

[182] In the proceedings before me, a further victim impact statement written by AB was filed on consent, Ex. 8, further attesting to the severe psychological damage that Mr. Hamelin’s conduct inflicted upon her.

[183] In R. v. Cook, 2020 ONCA 809, the court upheld the trial decision which found that the criminal harassment in that case constituted a serious personal injury offence and that the Crown had proven beyond a reasonable doubt the criteria for a dangerous offender designation because the appellant’s pattern of conduct showed a failure to restrain his behaviour, and a likelihood that he would cause severe psychological damage in the future. (The same basis as is advanced in Mr. Hamelin's case). The court upheld the trial judge’s findings that the appellant’s conduct interfered significantly with the victim’s personal life and well-being and actually caused severe psychological damage to her. The trial judge found that the appellant’s conduct placed it well beyond trivial or de minimis and that the appellant substantially interfered with the victim’s psychological integrity, health or well-being.

[184] To the same effect is the court’s decision in R. v. Cook, 2013 ONCA 467, in particular, at para. 42.

[185] On the basis of the facts in this case of Mr. Hamelin, I have no hesitation in finding that the Crown has proven beyond a reasonable doubt that his criminal harassment against HN falls within the definition of a serious personal injury offence. HN’s victim impact statement was filed on consent. An offer by the Crown to cross-examine her on it was declined by defence. HN’s statement makes it clear beyond any doubt that he inflicted severe psychological damage upon her.

[186] The facts of this case together with the victim impact statement demonstrate conduct communicating with, defaming his victim, causing her to fear greatly for her safety and the safety of her children and the safety of her home and personal property. The criminal harassment persisted beyond the point of Mr. Hamelin’s arrest and incarceration. Clearly, the offence inflicted and was reasonably and expectedly likely to inflict, severe psychological damage to HN. She suffered a profound negative psychological impact on her life, the lives of her children and all that she had worked for to achieve. His actions were profoundly devastating to her and can reasonably be expected to continue to negatively impact her life in a significant way.

[187] Dr. Gray’s evidence supports a finding of severe psychological damage inflicted, and likely to be, inflicted on HN.

[188] I find that Mr. Hamelin’s criminal harassment of HN interfered in a substantial way with the psychological integrity, health and well-being of HN. The harm he caused her impaired her health and her normal function as a person. It continues to do so. The harm that he caused to her was more than trivial or de minimis by far.

[189] I find that Mr. Hamelin’s criminal harassment did, in fact, inflict severe psychological damage on HN, and was likely to inflict serious psychological damage upon her or any other person subjected to it. (Cook, 2020, para. 18, 19; R. v. S.M. 2005 7254 (ON CA), [2005] O.J. No 1041 (Ont. C.A.), para. 13, 14; R. v. Tremblay, 2010 ONSC 486, para. 74-76).

[190] Accordingly, the first step in the analysis namely that the Crown has proven beyond a reasonable doubt that Mr. Hamelin committed a serious personal injury offence has been met.

A Threat to Mental Well Being

[191] Justice Molloy states that the next step in the Designation Stage is to determine, under s. 753(1), whether Mr. Hamelin “constitutes a threat to the life, safety or physical or mental well-being of other persons, based on evidence,” so far as is relevant to Mr. Hamelin’s case, “establishing 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 … inflicting severe psychological damage on other persons through failure in the future to restrain his or her behaviour.”

[192] The burden on the Crown is proof beyond a reasonable doubt.

Pattern of Repetitive Behaviour

[193] In his submissions, defence counsel acknowledged that the pattern criteria has been proven beyond a reasonable doubt with respect to HN.

[194] I agree.

[195] Justice Meijers made that finding in respect of the criminal harassment of A.B. He found that:

16 Mr. Hamelin … has demonstrated a clear pattern and propensity towards this type of behaviour. He has been undeterred in the past in his harassing behaviour by interaction and intervention by the police or by court intervention. None of these have seem to have significantly control or deterred Mr. Hamelin from continuing to contact those people he clearly ought to know do not want his contact and whose lives he is greatly affecting, in whom he's causing a great deal of fear to erupt because of that behaviour.

17 This count of criminal harassment to which he's pleaded guilty is his fifth. It was committed while he was on two probation orders, each would appear related to the same victim.

18 In my view, given this history, given this pattern, given the repeated and undeterred behaviour on the part of Mr. Hamelin …

[196] The pattern continued with respect to HN and, in fact, escalated as noted by Dr. Gray, and continued during the first 3 months that he was in jail.

[197] Dr. Gray identified and commented on the evidence of Mr. Hamelin’s pattern of repetitive behaviour as follows:

“Most of Mr. Hamelin's offences have been directed towards ex-partners. This includes his 2002 offences directed against CP, his offences in 2010, 2011 (twice), 2012, 2013, and 2014 directed against AB, and his index offences directed against HN. All of those offences, except the 2010 mischief offence, involved repeated, unwanted contact with an ex-partner despite legal prohibitions against doing so. The contact took the form of text messages, voice messages, and Facebook posts.

There is substantial evidence that he is unable to restrain his actions forming the basis of his offending behaviour. As noted, he has repeatedly contacted ex-partners against their clear, stated wishes and legal prohibitions. Even in the face of potential incarceration, he has continued to attempt to communicate with them. Further evidence of his inability to restrain his actions has been his persisting in the behaviour after hospitalization or even incarceration in many instances. He sent over a dozen letters to AB while receiving treatment, and incarcerated, at SLVCI, resulting in more time in custody. He contacted HN from Quinte Detention Centre by misleading a correctional officer to send her a message on his behalf.

His response to legal sanction for the repeated, unwanted communication has almost always been denial that he contacted them at all, an evasion of responsibility that portends the behaviour will continue.

There are strong indications the pattern of behaviour will continue in the future. Mr. Hamelin has had several rounds of treatment on partner violence and anger management. He completed several groups as an inpatient at SLVCI to address issues relevant to his behaviour. Despite these interventions, his index offence involved elements of his usual pattern, demonstrating a lack of effectiveness of any treatment he had thus far.”

(Emphasis added)

[198] Dr. Gray continued:

“With AB, while most of the unwanted contact took the form of pleas to resume the relationship or bizarre messages disguised as coming from someone else, he persisted in his offending for years. The behaviour continued after six sets of offences spanning four years, and included persistent contact from jails. The length of time and persistence of unwanted contact, despite criminal sanction, provides evidence of an escalation of the severity of his conduct beyond that exhibited in 2002.

In the index offences, the escalation included more abusive, degrading and threatening unwanted contact towards HN. This included, for the first time, explicit threats. In contrast to his past actions, in my opinion, his index behaviour would more certainly cause fear and anguish in his victim. Indeed, in interview he admitted that was his intention, in order to cause her to feel the same pain he did for being "betrayed". Unlike with AB, who he repeatedly stated he loved and wanted to reconcile the relationship, his stated intention in the index offences was vengeance out of anger.

As noted above, there is a psychiatric basis to the pattern of behaviour. A history of repeated, stormy relationships and dramatic break-ups is one of the essential features of BPD. His impulsivity and explosive anger, fuelling the behaviour, is another aspect of BPD. His frontal lobe damage likely worsens these traits and may make them more enduring.”

(Emphasis added)

[199] The Court of Appeal in Cook 2020 agreed that conduct similar to that of Mr. Hamelin’s met the pattern of repetitive behaviour criteria. (para. 24).

[200] I find that the Crown has proven beyond a reasonable doubt that Mr. Hamelin’s criminal harassment of HN constitutes a continuing pattern of repetitive behaviour showing a failure to restrain his behaviour.

Future Risk and Intractability

[201] On this criteria of the designation stage, Justice Molloy said, in Medford:

94 The next stage of the analysis is forward looking. The Crown must establish beyond a reasonable doubt that there is a high likelihood that Mr. Medford will reoffend in a harmful way and that the pattern of conduct he has demonstrated to date is substantially or pathologically intractable. Although these are separate concepts, they are related in that a finding that a pattern of violent conduct is intractable leads logically to a conclusion as to the likelihood of recidivism. The issue at this stage, however, is not what Mr. Medford has already done, but rather what the risks are for the future.

97 The expert evidence is also a factor to be taken into account. Again, it is not necessarily conclusive. I cannot simply disregard the evidence, but neither am I bound by it. It is a factor to be considered.

[202] In R. v. Groves, 2020 ONCA 86, the court said that the trial judge was required to review the appellant’s prior conduct for the purposes of assessing future risk. It said:

6 … the nature and duration of the appellant's prior conduct provided powerful evidence of how the appellant would act in the future, if given the opportunity. The evidence of the appellant's prior conduct was strongly suggestive of a significant future risk.

[203] The trial judge in that case also considered the recent assessment which spoke directly to the future risk.

[204] Dr. Gray’s observations and opinion on Mr. Hamelin’s past conduct and future risk are highly relevant. In addition to his evidence which I summarized previously and which I quoted at paragraphs 197 and 198 above, he says,

There are strong indications the pattern of behaviour will continue in the future. Mr. Hamelin has had several rounds of treatment on partner violence and anger management. He completed several groups as an in patient at SLVCI to address issues relevant to his behaviour. Despite these interventions, this index offence involved elements of his usual pattern, demonstrating a lack of effectiveness of any treatment he had thus far.

Another indication that he will be unable to restrain himself in the future is the underlying, psychiatric basis of his behavioural patterns. Personality disorders are by their nature fixed, and not "curable". Traits of the disorder can be managed to a degree with medications or therapy, but remain present. Unlike, for example, schizophrenia, symptoms of which can be held in sustained remission with compliance with medications, personality disorder persist to a degree despite medications and therapy. As will be explained below, sufferers of BPD tend to "burn out", with a blunting of their more impulsive and violent tendencies as they age into their late 40s and 50s. However, I note that Mr. Hamelin's BPD traits are reinforced by his pattern of brain damage in the very area of deficit for those with BPD, the frontal lobes. It is thus uncertain if his BPD traits will blunt at the same age, and to the same degree, as someone without organic brain damage.

With AB, while most of the unwanted contact took the form of pleas to resume the relationship or bizarre messages disguised as coming from someone else, he persisted in his offending for years. The behaviour continued after six sets of offences spanning four years, and included persistent contact from jails. The length of time and persistence of unwanted contact, despite criminal sanction, provides evidence of an escalation of the severity of his conduct beyond that exhibited in 2002.

In the index offences, the escalation included more abusive, degrading and threatening unwanted contact towards HN. This included, for the first time, explicit threats. In contrast to his past actions, in my opinion, his index behaviour would more certainly caused fear and anguish in his victim. Indeed, in interview he admitted that was his intention, in order to cause her to feel the same pain he did for being "betrayed". Unlike with AB, who he repeatedly stated he loved and wanted to reconcile the relationship, his stated intention in the index offences was vengeance out of anger.

As noted above, there is a psychiatric basis to the pattern of behaviour. A history of repeated, stormy relationships and dramatic break-ups is one of the essential features of BPD.

Is there a high likelihood of recidivism?

Mr. Hamelin suffers from two conditions that act synergistically to render him at a high risk of continuing his pattern of repeated, unwanted contact with ex-partners. Both BPD, and his history of frontal lobe damage, render him highly impulsive, subject to rapid variations in mood, and impair his ability to maintain healthy relationships and more importantly, deal with a partner leaving him.

His behaviour goes beyond what is typical of someone suffering from BPD. In a typical case of an individual suffering from BPD, there are multiple visits to hospital emergency rooms with suicidal gestures or threats, and a history of many dysfunctional relationships. It is less common that the degree of dysfunction in relationships leads to criminal charges, let alone repeated criminal charges over several partners and despite the deterrent effect of legal sanction and incarceration.

The persistence of the behaviour over time, partners, and severe consequences suggests a high risk it will persist in the future. Factors alluded to above, the presence of a personality disorder and organic brain damage, suggest the risk will continue in the future.

The lack of apparent amenability to treatment is another factor suggesting the risk in the future of similar behaviour will be high.

As alluded to above, in the typical clinical course of BPD, more acute personality traits soften and blunt with age. More commonly, those with BPD are less impulsive, and engage in less suicidal threats and self-injurious behaviour as they reach their late 40s and 50s.

Mr. Hamelin, at the age of 42, is approaching the age at which this "burnout" trend would generally begin. However, two factors suggest his individual case may not follow the commonly-observed clinical trend.

His most serious instances of problematic behaviour stemming from BPD were his most recent against the index victim. One would have expected, in a typical clinical course for BPD, that there would be more persistent behaviour in his 20s, with a downward trend into his 40s. The opposite appears to be the case.

Secondly, as mentioned in several places above in this report, his 1997 head injury would certainly not have modulated traits of BPD. More likely, it would worsen BPD traits and may cause them to persist beyond the "burnout" period.

Finally, I note that while Mr. Hamelin stated in interview that he is not interested in another relationship again, and he wants to just focus on his children, he has made the same declaration in the past at the end of his relationship with AB. It is in my opinion highly likely that at some point in the future, he will be involved in another relationship. Almost inevitably, given his past pattern, this relationship will eventually dissolve. Given most of his past romantic relationships ended in repeated unwanted contact, including two for which he was not charged, it is almost inevitable this pattern will continue.

Notwithstanding this high risk of repeated unwanted contact with ex-partners, which has a high likelihood to cause psychological harm, in my opinion his risk of committing an act of physical aggression is low.

Is Mr. Hamelin’s behaviour “intractable”?

I am aware that the concept of "intractable" behaviour is a legal, and not psychiatric, issue. It is up to the Court to decide on the issue of intractability. What follows is psychiatric evidence on the issues of the chronicity of his risk factors, the likelihood of his risk level changing over time, and the treatability of risk. My psychiatric opinions on these issues may assist the Court in making this legal determination.

Mr. Hamelin has exhibited a similar pattern of behaviour over many different relationships over a period of almost 20 years. The behaviour has persisted despite repeated legal sanction, and even persisted while he was incarcerated.

He has participated in several rounds of treatment, and has been noted for the most part to be uninterested and lacking insight when in programs. In the end, all of his previous treatment interventions have not reduced the intensity or persistence of his criminal behaviour.

As noted above, his head injury, and underlying personality disorder, are fixed conditions that are more resistant to change than a mental disorder due to a chemical imbalance. This testifies to the fixity of factors motivating his offending behaviour, and the likelihood future treatment has a lower chance of success.

Another factor is his complete denial of much of his offending behaviour, and recurrent perception of himself as the victim in his offences. This tendency lessens the chance that he will be receptive to treatment in the future, and also suggests that he will continue to see future similar behaviour as justified and lack remorse for the effects his behaviour will have on his victims.

In my opinion, although Mr. Hamelin has hearing deficits and some cognitive challenges, these issues are not the main reason for the lack of effectiveness in treatment interventions. My reading of his past health records is that accommodations for his responsivity issues were made in most instances, and facilitators noted he understood the material in theory. The problem instead was that he did not think his various treatment interventions were relevant to his situation, and did not see himself to have problems that needed fixing. Therefore, more accommodations to address responsivity issues in the future are unlikely to result in greater treatment success. It is doubtful that his underlying traits and behaviours will change.

I also noted above the lack of evidence, or at least uncertainty, that the general trend of dysfunctional traits "burning out" with age will apply to Mr. Hamelin. This psychiatric evidence suggests "intractability" as well.

In summary, it is my opinion that there is abundant psychiatric evidence to support the legal question of Mr. Hamelin's risk being considered "intractable". He is highly unlikely to develop the internal controls with time and treatment, for him to manage his offending behaviours.”

(Emphasis added)

[205] On the evidence, Dr. Gray’s clinical opinion is supported by the HCR-20-Version 3 actuarial tool results, although he acknowledges that there is no actuarial tool designed specifically for Mr. Hamelin’s characteristics of offending.

[206] As Justice Molloy cited:

101 In R. v. Gibson, Code J. held that a denial of the underlying offences and a failure to recognize any basis for treatment are relevant to the assessment of recidivism and dangerousness. Code J. stated (at paras. 45 and 47):

The dangerous offender jurisprudence is consistent with the above proposition drawn from Levert, which was not a dangerous offender case. The Courts have repeatedly referred to "denial", especially by sex offenders but also by violent aggressive psychopaths, as a significant factor when assessing the "likelihood" test in s. 753 concerning future re-offending. Unwillingness to take treatment and prospects for successful treatment have always been important factors in these kinds of cases, when assessing future dangerousness. See, e.g.: R. v. Allen, supra at paras. 25-28; R. v. Little (2007), 2007 ONCA 548, 225 C.C.C. (3d) 20 at paras. 40-43 (Ont. C.A.); R. v. McCallum (2005), 2005 8674 (ON CA), 201 C.C.C. (3d) 541 at para. 47 (Ont. C.A.); R. v. B. (R.) (2011), 2011 ONCA 328, 280 O.A.C. 329 at paras. 13-14 (Ont. C.A.); R. v. Ramgadoo, 2012 ONCA 921 at paras. 54-59.

It can be seen that treatability of Gibson's pedophilia, his attitude towards treatment, and his acknowledgement of the underlying condition that leads to his offending behaviour, are all important factors relating to the "likelihood" of future recidivism.

[207] Mr. Hamelin’s conduct including his lack of insight and denial of need for treatment, at least prior to his comments to this court, are also considerations.

[208] I also consider his history of breach of court orders, including the LTSO’s. The history of the breaches of LTSO demonstrates the very brief time that was available for any programming at the CCC, due at least in part to his criminal offending.

[209] As I have stated already, he achieved little enduring success with the ICPM Community Based program offered at Henry Trail.

[210] The thrust of the Defence submission that this criteria has not been proven beyond a reasonable doubt arises in Dr. Gray’s evidence of the treatments, therapies and programming that Mr. Hamelin needs, the evidence of CSC as to the High Intensity ICPM available within the penitentiary, the close restrictive supervision available at a CCC and the success this achieved at Henry Trail, and the strictly limiting conditions that can be imposed on Mr. Hamelin by the Parole Board of Canada.

[211] The defence relies on the evidence given by Dr. Gray in cross-examination which I summarized at paras. 100 to 116 above, and which I quote at para. 283 below.

[212] Dr. Gray noted that Mr. Hamelin has a disproportionate reaction to identifiable life stressors which he has been unable to deal with and which can usually be managed or overcome.

[213] On this issue, I have considered the evidence as directed by the Supreme Court of Canada in Boutilier, as to the differing considerations of the same evidence of treatability at the designation stage and the penalty stage (para. 31, 45, 46).

[214] At the designation stage, I must consider the treatability evidence to assess the future threat posed by Mr. Hamelin.

[215] As Justice Molloy stated in Medford, albeit with respect to offences of sexual violence,

105 In Boutilier, the Supreme Court of Canada defined intractable conduct as "behavior that the offender is unable to surmount." This assessment is required to be forward looking, not merely a reiteration of a finding of intractable conduct in the past. However, in the situation before me I have a history of intractable conduct, a mindset in the offender that there is nothing wrong with his sexual desires, and a refusal to participate in treatment in any meaningful way. In those circumstances, the pattern of intractable conduct is not suddenly going to change. It will continue into the future. There is no basis to conclude anything else. Mr. Medford is not even prepared to try to surmount his deviant sexual urges in the future; he does not even recognize or acknowledge that he has them.

[216] I find that on the evidence, it has been proven beyond a reasonable doubt that Mr. Hamelin’s problems are insurmountable.

[217] On the evidence, I find that the Crown has proven beyond a reasonable doubt the likelihood of him inflicting severe psychological damage on other persons through failure in the future to restrain his behaviour.

[218] Mr. Hamelin’s treatment prospects combined with the CSC and PBC objectives, powers and controls are not so compelling as to leave me with a reasonable doubt.

[219] According, I find it proven beyond a reasonable doubt that Mr. Hamelin constitutes a threat to the life, safety, and physical and mental well being of other persons based on the evidence in these proceedings.

[220] Having already found it proven beyond a reasonable doubt that he has been convicted of a serious personal injury offence, I find Mr. Hamelin to be a dangerous offender.

Penalty Stage

[221] Upon finding that Mr. Hamelin meets the statutory definition of a dangerous offender, I have 3 sentencing options:

(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

[222] My discretion in regard to sentence is limited by Section 4.1 which mandates,

(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.

[223] I repeat that in, Boutilier, the court directed:

31 … the purposes of prospective evidence at the designation and sentencing stages are different. The designation stage is concerned with assessing the future threat posed by an offender. The penalty stage is concerned with imposing the appropriate sentence to manage the established threat. Though evidence may establish that an offender is unable to surmount his or her violent conduct, the sentencing judge must, at the penalty stage, turn his or her mind to whether the risk arising from the offender's behaviour can be adequately managed outside of an indeterminate sentence.

45 … At the designation stage, treatability informs the decision on the threat posed by an offender, whereas at the penalty stage, it helps determine the appropriate sentence to manage this threat. Thus, offenders 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 intractablel. However, even 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.

[224] In R. v. Hemmings, 2021 ONCJ 407, the court quoted with approval from R. v. Broadfoot, 2018 ONCJ 215 that the Boutilier decision should be interpreted such that at the designation stage, intractability relates to whether or not the conduct can be treated whereas at the penalty stage, having found that the conduct cannot be treated, the court must consider whether the conduct can be managed.

[225] Justice Molloy’s decision is again instructive.

112 Thus, an indeterminate sentence is not automatic upon a finding that the dangerous offender requirements are met. I retain a discretion to impose a less restrictive sentence. However, that discretion is limited by s. 753(4.1) of the Criminal Code, which requires me to impose an indeterminate sentence unless I am satisfied that "there is a reasonable expectation" that one of the other two options "will adequately protect the public against the commission by the offender of murder or a serious personal injury offence." The question for me to determine at this stage is whether there is a reasonable expectation that imposing a regular sentence, or a determinate sentence followed by a Long-Term Supervision Order ("LTSO") will adequately protect the public from the threat Mr. Medford represents.

113 Although the burden of proof was on the Crown to establish beyond a reasonable doubt that the dangerous offender criteria had been met, the burden is different at this stage. I must consider whether I am satisfied that one of the other two options will protect the public. If I am not satisfied, I am required to impose an indeterminate sentence. Further, if I am uncertain whether the public would be satisfied, I must refuse to exercise my discretion to impose a lesser sentence.

115 In deciding this issue, I must keep in mind that the overriding aim of the dangerous offender provisions "is not the punishment of the offender but the prevention of future violence." In R. v. G.L., the Ontario Court of Appeal recognized that the decision at this stage is a balancing exercise in which the sentencing judge must weigh the liberty interests of the offender against the risk to public safety if he is released. The Court (per Cronk J.A.) held:

As I have indicated, the overriding purpose of the dangerous and long-term offender regimes is the protection of the public. Thus, 'real world' resourcing limitations cannot be ignored or minimized where to do so would endanger public safety. The court is required on a dangerous offender application to balance the liberty interests of an accused with the risk to public safety that will arise on the release of the accused into the community. That balancing exercise is informed by this fundamental principle: in a contest between an individual offender's interest in invoking the long-term offender provisions of the Code and the protection of the public, the latter must prevail. This accords, in my opinion, with the intention of Parliament as expressed in the dangerous and long-term offender provisions of the Code, and in the Corrections and Conditional Release Act.

118 In G.L. the Ontario Court of Appeal recognized that an offender's amenability to treatment is a relevant factor in determining whether his risk to the community can be eventually controlled, holding (at para. 40):

In Johnson, the Supreme Court also confirmed, at paras. 33-36, that prospective factors concerning an offender must be addressed on a dangerous offender application, including the possibility of eventual control of the offender's risk in the community. Necessarily, therefore, an offender's amenability to treatment and the prospects for the success of treatment in reducing or containing the offender's risk of reoffending are critical factors.

Other Legal Principles Applicable at the Penalty Stage

The Section 718, and on, Principles Apply

[226] I must consider the principles of sentencing set out in section 718 of the Criminal Code and thereafter, including the principles of proportionality, the gravity of the offence, the degree of responsibility of the offender, the deemed aggravating factors of abuse of an intimate partner and the abuse of a position of trust, the significant impact on HN of Mr. Hamelin's crimes and the principles that the least restrictive sanctions should be imposed and that all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims, should be considered for all offenders. (Boutilier, para. 53 and R. v. Drake, 2024 ONCA 4).

Aggravating Factors

[227] The index offences are the most recent of a pattern of repetitive behaviour that Mr. Hamelin has not restrained or is unable to restrain.

[228] The level of harm caused and the nature of the harm caused to his victim rose to a higher level of gravity than exhibited in his prior offending.

[229] The crimes were committed against a former domestic partner.

[230] Mr. Hamelin's criminal record includes convictions for similar criminal harassment offences and for breach court orders.

[231] He continued to commit offences against HN while in jail.

[232] The impact of his crimes on his victim was serious, severe and the harm continues to affect her daily life.

[233] The underlying BPD and ABI combination is not treatable, nor can it be said that the normal declining trajectory for such conditions will occur. At age 42, the nature of his offending escalated.

[234] His past history, Dr. Gray’s opinion and common experience indicate that Mr. Hamelin will become involved in a domestic relationship in the future, that it will end and that he will reoffend.

Mitigating Factors

[235] Mr. Hamelin pleaded guilty.

[236] It appears that for the first time to this Court, he apologized for what he did, acknowledged it was wrong and that he needs help.

[237] He did not offend while at Henry Trail under residency conditions of a LTSO and close supervision conditions.

[238] There are recommendations for future treatment and external controls.

Reasonable Possibility

[239] In R. v. Tremblay, Justice Karakatsanis, as she then was, stated that the court must consider whether there is a reasonable possibility of eventual control of the offender’s risk in the community. She considered factors such as the offender being amenable to therapy, age and burnout and supervision.

[240] This court in R. v. Walford, [2007], O.N. No. 744, agreed with the “reasonable possibility” of eventual control of the risk standard, stating:

“An expression of hope that future treatment will reduce the risk of re-offending does not prove a reasonable possibility of eventual control of that risk.” (para. 77)

Harm Reduction not Risk Elimination

[241] Justice Karakatsanis also said in Tremblay:

191 However, the Criminal Code looks to a reasonable possibility of eventual control in the community. The Supreme Court of Canada has recognized that the risk may not be eradicated but rather controlled to an acceptable level. There is a 'harm reduction' rather than a 'risk elimination' focus to the long term offender provisions. As the Court of Appeal stated in G.L. "s. 753.1(1)(c) requires that there be a "reasonable possibility," rather than a certainty, of the eventual control of the risk posed by an offender": R. v. G.L., above, at para. 39.

192 The determination of whether an offender's risk can be reduced to an "acceptable" level requires consideration of all factors, including treatment, which can bring about sufficient risk reduction to ensure protection of the public. This does not require showing that an offender will be "cured" through treatment or that his or her rehabilitation may be assured. What it does require, however, is proof that the nature and severity of an offender's identified risk can be sufficiently contained in the community, a non-custodial setting, so as to protect the public: R. v. G. L., above, at para. 42.

To the same effect is R. v. D.B., 2015 ONSC 5900, (para. 200).

Mr. Hamelin’s Personal Circumstances

[242] I must not lose sight of Mr. Hamelin's personal circumstances, and his potential for rehabilitation.

[243] I must not overemphasize denunciation and deterrence. (R. v. Paredes, 2014 ONCA 910, para. 48).

Mr. Hamelin’s Words to the Court

[244] Mr. Hamelin said he was sorry. He said he was wrong. He said he needed help.

[245] Dr. Gray reported that when he interviewed him, Mr. Hamelin said he was not aware of any specific issues for which he needs treatment, and “agreed only he needs help with “emotional stuff” and “mental health”, when prompted.”

[246] Dr. Gray concluded that even with the risk management interventions that he identified,

“the likelihood of control of Mr. Hamelin's risk of harassing future ex-partners is relatively low.”

Does Mr. Hamelin’s Conduct Meet the Requisite Level of Dangerousness

[247] As stated in Boutilier,

111 Section 753(4.1) imposes indeterminate detention unless the sentencing judge is satisfied that there is a reasonable expectation that a lesser measure is adequate for public protection. In assessing whether a lesser measure "will adequately protect the public against the commission by the offender of murder or a serious personal injury offence", sentencing judges must consider both the level of the risk presented by the offender and the nature of the harm the offender is likely to cause. The specific reference to murder in s. 753(4.1) suggests that indeterminate detention should only be imposed in cases where the offender's risk is expected to manifest itself in the most severe forms of serious personal injury offences. For example, if there is a high risk that the offender will commit another serious personal injury offence, but this offence is not likely to involve significant violence (e.g. criminal harassment, obstruction of justice), s. 753(4.1) does not necessarily mandate indeterminate detention. Indeed, the principle of restraint bars sentencing judges from imposing indeterminate detention on offenders who are not likely to commit very serious crimes in the future (see Johnson, at para. 40). As [page991] discussed above, serious personal injury offences include offences that do not involve serious violence. The question a sentencing judge must ask in applying s. 753(4.1) is this: Does this offender, due to the level of the risk and the nature of future harm likely to be caused, fall within the small group of truly dangerous offenders who must be imprisoned indefinitely in order to protect the public?

114 Given the severity of indeterminate detention, this sentence will only be proportionate when the offender is very blameworthy and the offence is quite grave. Apart perhaps from life imprisonment, an indeterminate sentence is the harshest sanction available under the Criminal Code. Testimony in a recent case indicated that only 4-5 percent of dangerous offenders are ever released on parole (R. v. Walsh, 2017 BCCA 195, 348 C.C.C. (3d) 1, at para. 22). In addition, they are viewed as low priority for placement in treatment programs in prison, contributing to their poor prospects for rehabilitation and release (ibid.; R. v. Payne (2001), 2001 28422 (ON SC), 41 C.R. (5th) 156 (Ont. Sup. Ct.)). In effect, an indeterminate sentence amounts "to a life sentence with little chance of parole" (Walsh, at para. 22). This Court has characterized the effects of indeterminate detention as "profoundly devastating" (Lyons, at p. 339).

117 The offender's degree of responsibility is not reflected in the s. 753(4.1) public safety threshold (see R. v. Radcliffe, 2017 ONCA 176, 347 C.C.C. (3d) 3, at para. 57; R. v. B. (D.V.), 2010 ONCA 291, 100 O.R. (3d) 736, at para. 80, leave to appeal refused, [2011] 3 S.C.R. vii). And given the broad definition of serious personal injury offences (which, despite their name, need not necessarily entail serious injury), indeterminate detention will be disproportionate to the gravity of the offence for many offenders who meet the designation criteria. But a sentencing judge is required to impose indeterminate detention on offenders whose moral blameworthiness is limited if the public safety threshold in s. 753(4.1) is not met, even if this sentence is inconsistent with Gladue principles.

119 Section 753(4.1) may also preclude a sentence that respects the principle of restraint. This provision resolves any uncertainty about the offender's amenability to treatment in favour of indeterminate detention (R. v. R.S., 2016 ONSC 7767, at paras. 51 and 102). Section 753(4.1) creates a presumption for an indeterminate sentence that is only rebuttable by "evidence adduced during the hearing". The Crown will often know about the existence of community-based supervision programs, but it is not required to lead evidence on this point, and if no relevant evidence is provided to the court, the appropriate sentence is an indeterminate one (Radcliffe, at para. 58; R. v. Smarch, 2015 YKCA 13, 374 B.C.A.C. 280, at para. 48). As one of the interveners, the Yukon Legal Services Society, points out, the absence of evidence that suitable community supervision programs exist is sometimes attributable to an offender's limited resources or the lack of programming in a particular community, rather than to the inability to manage the offender's risk.

[248] The court in R. v. Wesley, 2018 ONCA 636 makes it clear that psychiatric evidence must be considered at both the designation stage and the penalty stage. The court approved of the trial judge’s consideration of the offender’s lengthy history of non compliance with community based dispositions and court orders which did not curb his offending. That appellant offended while on probation, recognizances and peace bonds. The trial judge had reviewed that offender’s history in various institutions, counseling, his inability to sustain change, his pattern of justifying, minimizing or blaming others, his failing to identify consequences and the impact of his conduct on others. Mr. Hamelin and his offending conduct bear the same characteristics.

[249] Despite the evidence of significant and multiple efforts at treating and delivering programming to Mr. Hamelin and the lack of success in doing so, including Mr. Hamelin’s lack of insight, refusal to accept responsibility, denial and disengaging from or refusing to significantly participate in what has been offered, I have considered the evidence of Dr. Gray that there are some treatments, therapies and programming that should have been offered and may have been beneficial but that for the reasons identified have not been provided.

[250] Dr. Gray’s opinion is set out in his report,

“If sentenced to a term of federal incarceration, it would be helpful for him to participate in recommended groups or individual treatment offered by the Correctional Services of Canada (CSC). (emphasis by Dr. Gray)

There are several challenges with this possible avenue of treatment.

Mr. Hamelin has not generally done well in group treatments, and I understand that while some individual supplementation is available, the mainstay of the ICPM program is group therapy. …

Another potential challenge is the more unusual needs he presents for treatment. Unlike most of the likely candidates for the ICPM or other correctional programs, he has no problems with substance abuse or physical violence. In my opinion, the main issues that need treatment are managing powerful emotions, healthy relationships, and making good decisions, but this may not necessarily be the main part of programming. On the positive side, I understand most correctional program would feature some degree of anger management, a related issue for which Mr. Hamelin needs help. Unfortunately, in interview with me and in past interviews, he has consistently denied having a problem with anger. This may foreshadow a lack of engagement in this treatment modality.

When and if he is released in the community, I would recommend the following interventions, and will comment on the challenges each may pose for Mr. Hamelin's case.

Initially, Mr. Hamelin should be released to a supervised residence such as a CCC. This would serve several purposes. Housing will be a major challenge for Mr. Hamelin …

Second, residence in a CCC with a dedicated probation officer would assist in helping him connect to services and a structured schedule, as suggested below.

Third, with close supervision, probation officers are more likely to become aware when he develops new relationships, and would in theory be able to monitor them.

I will address the major difficulties in this aspect of risk mitigation below.

The challenge to a condition of residency in a CCC, based on his past history, is that he has persistently complained about having to reside there in the past while under a LTSO. He felt it was impeding his ability to be involved in community activities and find a job. While he stated to me in interview he would have no difficulty in residing in a CCC, so long as it wasn't KCCC, I note that his opinions about options in the future change over time and ultimately one cannot predict how he will react to placement in a CCC upon release from incarceration.”

[251] I observe that the Crown seeks a condition barring Mr. Hamelin from Kingston. But the only other CCC is Keele which has been completely unsuccessful for Mr. Hamelin.

[252] Dr. Gray’s opinion in his report continues.

“Mr. Hamelin appeared to benefit from his engagement with the Brain Injury Services team and an individual worker, Ms. Revell. I agree with Ms. Astri that he should be linked up with a similar organization in the future to help him find structured activities, housing, and to attend necessary counselling and medical appointments.

Along with support from a brain injury service, it would be important for Mr. Hamelin to keep busy with structured, meaningful activities. This should include some supportive employment and volunteer activities. To Mr. Hamelin's credit, he appears to be a hard worker when he finds an activity interesting and feels useful. …

Mr. Hamelin should engage in counselling and therapy in the community. In my opinion, the most helpful modality of therapy would be groups and individual counselling centering around managing powerful emotions, decision making, relationships, and anger management. For those suffering from BPD, the mainstay of therapy is Dialectical Behavioural Therapy. This involves elements such as distress tolerance, coping skills, mindfulness, and developing health relationships. This modality of treatment is relatively common in the community, and often available in community mental health centres. For reasons that are unclear, he started treatment in this area at SLVCI, but after one session, it was not continued. He would need not only a full course of therapy, but availability of counsellors trained in these techniques to be available to him in the community on an ongoing basis. Additionally, due to his cognitive and hearing challenges, accommodations and an adaptive approach is necessary for this to be successful.

It is likely Mr. Hamelin will at least try to participate in the therapy. One would hope that he would eventually develop insight into his problematic behaviours, or at least develop practical techniques to deal with his intense feelings of distress and rage when he feels abandoned by those close to him. Without any history of successful treatment, I cannot say with any certainty it will work in the future for Mr. Hamelin.

In terms of medications, Mr. Hamelin stated he is happy with his current regimen. It includes the psychostimulant Vyvanse, the anti-depressant and anti-anxiety medication, Venlafaxine (Effexor), and the mood-stabilizer/anti-depressant Aripiprazole (Abilify).

Nevertheless, anti-anxiety and mood stabilizing medications could be helpful in allowing Mr. Hamelin to access healthy coping mechanisms when under stress. I would suggest, instead of Aripiprazole, a trial of an anti-convulsant medication such as Epival to help with mood regulation. …

Given Mr. Hamelin's apparent compliance with mediations when he is happy with their effects, the prospect of his complying with medications in the future, so long as the side effects are not adverse, is reasonably good.

The above recommendation is related to the next suggestion, involvement with a psychiatrist to manage his medications and help direct him to appropriate psychological therapy.

The last area needing management is his history of dysfunctional relationships, particularly upon their dissolution.

Unfortunately, this important area will be highly challenging to address.

Unfortunately, Mr. Hamelin's relationship with the victim soured after LTSO and any other conditions of supervision expired.

The ultimate question is whether, had such conditions been in effect during the dissolution of his relationship with HN, it would have prevented his reoffence. This would help determine whether a high degree of supervision and monitoring of his relationships in the future would help prevent severe psychological harm to his partners by him upon the dissolution of the relationship.

I note some areas of concern in this regard. Ms. Astri noted that there appeared to be major problems in his relationship with HN in the months before the date he cited as when problems started. He lacks insight into his behaviours, and often has a poor memory of events. I note also Mr. Hamelin consistently portrayed his relationship with AB as going well when he was with her, even when she related a different perspective to probation officers and in statements after the relationship ended. In addition, Mr. Hamelin has a long history of not telling the truth. This would affect his potential transparency in reporting adverse events to a probation officer in future relationships.

While check-ins with a potential future partner is necessary for a supervising probation officer, it is unclear if this will be sufficient. …This would suggest that increased oversight by a probation officer may still not be able to detect problems in the relationship before another offence is committed.

Interventions to manage a potential break-up may paradoxically worsen the problem.

Further, the threat of legal sanction, and non-contact orders, have had no effect in dissuading Mr. Hamelin from contacting his ex-partners. He has gone so far as contacting ex-partners from jail against his conditions, suggesting that even incarceration may not prevent future offending.

If released from incarceration, regardless of the challenges, it would still be necessary for tight supervision of any future relationships with females and to increase interventions should the relationship dissolve. In support of this, it would be important from a risk perspective for Mr. Hamelin to meet regularly with a probation officer while in the community. I would suggest at least weekly meetings initially. It would also be helpful that counselling be increased when there are signs of problems in any future relationships, rather than impose punitive measures or restrictions.

Overall, however, as described above, in my opinion the likelihood of control of Mr. Hamelin's risk of harassing future ex-partners is relatively low, even with the above suggested risk-management interventions.

I would suggest that the interventions embedded in my comments above, and highlighted in bold, be adopted by the National Parole Board should he be recommended for release from incarceration.”

[253] The evidence of CSC is that there is programming designed to deal with offenders who deny responsibility and refuse treatment. The evidence of CSC is that a residency condition while available only for the first year initially can be extended on a yearly basis. The parole officers are empowered to impose local conditions to address Mr. Hamelin's offence cycle.

[254] CSC's normal contact with a parole officer for Mr. Hamelin can be twice per week, and this can be increased,

[255] CSC has the ability to closely monitor relationships as demonstrated by Mr. Herbert and stated by Ms. Howie.

[256] The evidence of the Parole Board of Canada is that special conditions on a LTSO can be imposed including tight restrictions on friendships or relationships with females, and access to and use of electronic devices and on locations in the community where Mr. Hamelin can and cannot be permitted to attend.

[257] It was suggested by defence that a condition such as no contact with any female person could be imposed.

Longest Previous Sentence

[258] It is to be noted that the previous longest sentence of imprisonment for Mr. Hamelin to date appears to have been less than two years of incarceration. In 2011 and 2012, he was sentenced to 2 consecutive 8 month sentences.

Pre Sentence Custody

[259] Mr. Hamelin has been in custody since December 25, 2019. That is the equivalent of 1500 days actual custody to February 5, 2024. He has served that time in the provincial detention centre system, Quinte and Central East

[260] The Crown, with the consent of defence, is prepared to give Mr. Hamelin enhanced credit for 1 year 9 months of the time served under the harshest of COVID conditions at 2 days per 1 day actual pre sentence custody, totalling 1280 days, to February 5, 2024.

[261] In addition, the Crown with the consent of defence, is prepared to credit Mr. Hamelin for the balance of his actual presentence custody at 1.5 days/1 day actual, totalling 1290 days, to February 5, 2024.

[262] Thus, counsel agree that Mr. Hamelin should have the benefit of 2570 days of enhanced presentence custody credit which is the equivalent of 7 years 15 days, up to February 5, 2024.

The Gravity of the Offence

[263] Mr. Hamelin’s offending is very serious.

[264] He inflicted profound severe psychological damage to HN which will continue to haunt her. His offending is at the high end of gravity for the offences of criminal harassment.

The Degree of Responsibility of Mr. Hamelin

[265] Mr. Hamelin's criminal conduct is due at least in part to his personal makeup, which includes the combination of hearing deficit, brain injury, borderline personality disorder, which, apart from the brain injury, and although diagnosed and identified, have been largely untreated for the various reasons set out in the evidence.

[266] He persisted in his criminal conduct despite knowing HN wanted no contact with him and despite the intervention of the police, the court and jail.

[267] He says he wanted to hurt her. He did, causing severe psychological injury on the many levels she described in her victim impact statement.

[268] He pleaded guilty.

[269] He has not resiled from the acceptance of responsibility.

The History of Breaches

[270] The history of breaches shows that Mr. Hamelin served only approximately 9 months out of the 4 year LTSO in a Community Correctional Centre. He was at Keele from February 25 or 26, 2015 until April 22, 2015 and from March 29, 2016 to April 4, 2016. He was at Henry Trail from July 18, 2018 until February 18, 2019 when his LTSO expired. This is because of the provincial remand custody time that he served awaiting disposition of the 3 breach charges.

[271] While at Henry Trail, between October 1, 2018 and November 26, 2018, he was exposed to the ICPM, community program. But he did not like the programming and denied his guilt.

[272] Upon the expiration of his LTSO in February 2019, the responsible correctional program officer noted that he declined to meet with her and review his self-management plans. She wrote, “stating that he could not see any benefits to such meeting and that he is “not even remotely interested” in meeting for this purpose. He offered he has “everything figured out” and he is prepared for all aspects of reintegration. He offered that he does not need any help or suggestions on how to manage effectively his risk factors as he opined he does not “have any risk factors in the community” and he has “everything lined up” for success including a place to stay and a job”.

[273] Of course, he committed the very serious personal injury offences of an escalated nature upon HN thereafter.

[274] Other courts have commented on Mr. Hamelin’s need for treatment.

[275] This evidence must be considered in light of the opinion of Dr. Gray concerning the treatment and programming that Mr. Hamelin should have been offered but was not. That evidence also ties in with the evidence of the CSC programming that is available within the institution, and the statutory purpose of conditional release namely to contribute to the maintenance of a just, peaceful and safe society by means of decisions on the timing and conditions of release that will best facilitate the rehabilitation of offenders and their reintegration into the community as law-abiding citizens. The protection of society is the paramount consideration for the Parole Board in all cases.

[276] Clearly, the loss of the intended benefits of the LTSO must be attributed, in large part, to the criminal conduct of Mr. Hamelin, as described in the sentencing decisions for the breaches, resulting in provincial remand detention for over 3 years of his LTSO. It can also be attributed in part to his attitude against recommended programming and denials of responsibility for his criminal conduct.

[277] As previously observed, he has not been exposed to the High-Intensity ICPM offered within the federal penitentiary system, with the programming that has been described in the evidence.

[278] The question on sentence of whether to impose an indeterminate sentence or a fixed term sentence followed by a longer term of LTSO, comes down to balancing the statutory principles set out in the CCRA, Dr. Gray’s opinion as to what has been and what has not been and what should be offered by way of treatment, programming and counselling, the programming that is offered by CSC within the federal institution, the conditions that can be imposed by the Parole Board of Canada upon Mr. Hamelin if on a LTSO and Mr. Hamelin’s willingness and ability to engage in what is recommended for and provided to him with purposes of the dangerous offender legislation.

[279] As I have stated, I must consider the provisions of s. 753(4.1) and s. 718 and of the Criminal Code.

[280] In balancing the interests of Mr. Hamelin and the protection of the public, the latter must prevail.

[281] I have considered both the level of the risk presented by Mr. Hamelin and the nature of the harm that he presents.

[282] In deciding the penalty for Mr. Hamelin, the list of considerations identified by Justice Hill in R. v. DB, 2015 ONSC 5900 is helpful:

194 At a minimum, the phrasing "reasonable expectation" requires an evidence-based evaluation, based upon objectively valid and relevant criteria, with probabilistic assessment exceeding chance, speculation, hope or mere possibility that something will happen. While the question arises as to any further probabilistic degree of satisfaction required of the court, given the priority for public safety animating Part XXIV determinations, I am prepared to look to satisfaction on a balance of probabilities in deciding the s. 753(4.1) "expectation" issue.

198 In the balancing exercise to determine whether public protection can realistically be achieved by a disposition less severe than indeterminate, imprisonment, bearing in mind that "Parliament has provided that [such detention] should not be imposed unless there is no reasonable expectation that a lesser measure will be able to adequately protect the public" (Sawyer, at para. 30), the totality of the circumstances of a particular case must be scrutinized. There is no exhaustive menu of relevant factors for consideration as to whether an offender's future conduct is likely to be inhibited by normal standards of behavioural restraint. Important are the nature and circumstances of the predicate crimes, criminal history of the offender, the nature and duration and intensity of his or her mental disorder, treatability, profile of previous compliance with orders and release conditions, expert risk assessments respecting likelihood of reoffending, attitude and motivation of the offender, community capacity to adequately monitor and supervise the offender upon release, etc.

199 Reference to the relevant jurisprudence reveals exploration of a number of these subjects including the following:

(1)the degree to which the offender has been cooperative with the Part XXIV process

✔ Mr. Hamelin has been cooperative with the DO process.

(2)whether the offender has previously refused treatment or failed to take advantage of treatment opportunities

☑ Mr. Hamelin has previously refused treatment and failed to take advantage of treatment opportunities.

(3)whether the offender has been expelled from prior treatment programs

☑ Mr. Hamelin has been expelled from prior treatment programs.

(4)whether the offender has previously refused to take prescribed medication or has unilaterally discontinued pharmacological treatment

✔ Mr. Hamelin has been compliant with prescribed medication.

(5)whether the offender has taken treatment in the past and if so whether it ultimately failed to reduce or control the offender's risk to the public

☑ Past treatment which has been taken by him has failed to reduce or control his risk to reoffend.

(6)is the offender motivated and committed to treatment?

☑ While Mr. Hamelin told the Court and Dr. Gray that he will take treatment, the past demonstrates otherwise, as do his words upon expiration of the LTSO.

(7)are there realistic prospects for treating the offender's mental disorder(s) having regard to relevant factors such as propensity and intractability?

☑ Dr. Gray’s opinion is that there is no realistic prospect of treatment of Mr. Hamelin’s BPD in combination of his ABI.

☑ Dr. Chan concluded that Mr. Hamelin’s difficulties arising from his brain injury will not get any better.

☑ As defence counsel noted what the risk of harm that Mr. Hamelin would present after a determinate sentence followed by a lengthy LTSO is unknown, “we don’t know how the future is going to play out.” Dr. Gray agreed.

(8)respecting the predicate offences, is there a lack of insight, failure to accept responsibility, denial and minimization, a lack of empathy for the victim(s), absence of remorse?

☑ Up until his words to this court, Mr. Hamelin has demonstrated a lack of insight and a lack of empathy for HN. However, he pleaded guilty. He said he was sorry. He said he needs help.

(9)the circumstances of the offender's institutional behaviour including in advance of the dangerous offender hearing

✔ Mr. Hamelin’s institutional behaviour has been satisfactory, although he has offended from within a jail and breached his LTSO, and declined treatment including disrupting programs.

(10)what improvements or gains in risk reduction can be expected during a period of custody preceding community release?

☑ This is a key factor in that the only opinion concerning improvements or gains on risk reduction during a period in custody before a community release is that the High Intensity ICPM would benefit him and is available. There is no evidence of what degree of risk management could be achieved with this combined with the CBT and DPT and other therapies recommended.

☑ There is no evidence that such treatment would give rise to a reasonable expectation of adequately protecting the public.

(11)has past engagement with community supervision been compliant?

☑ Brief success at Henry Trail under the close supervision of Mr. Hebert was achieved for about 9 months. The balance of the 4 year residential LTSO was spent in provincial remand jails without treatment or programming. The exit meeting on February 2019 does not give rise to an expectation of future compliance, nor does his history of fail to comply convictions.

(12)apart from treatment considerations, are there sufficiently available and resourced external controls in the community to adequately protect the public?

☑ The evidence of CSC and PBC is that sufficiently available and resourced external controls are available. But there is the example of Toronto South Detention Centre putting him on the street to find his way to St. Leonard’s House in Brampton. There is the example of breach at KCCC of not reporting relationships for 2 months following admission. And there are the 2 examples of UAL from KCCC. Once the LTSO expires, if imposed, there are no external controls. The offences against HN occurred in that circumstance.

(13)as a factor independent of treatment, is there compelling, not speculative, expert evidence that the offender's proclivities will significantly decline in the future while falling within the period of a determinate sentence and the term of a LTSO?

☑ There is no evidence, expert or otherwise, that Mr. Hamelin’s proclivities will significantly decline in the future within a determinate sentence followed by a LTSO. The best that can be said is that while he is subject to a residency condition at Henry Trail for the entire period of a LTSO, supervised by Mr. Hebert, on a strict condition to report friendships or relationships, strictly defined, he will not reoffend.

☑ However, the Crown seeks an Order that he be barred from Kingston. That would place him at KCCC where he has totally failed.

☑ Furthermore, he reoffended on an escalated basis shortly after the Henry Trail LTSO expired. No harm reduction of any significant duration has been achieved over all the years of convictions and sentences.

☑ A further consideration in this regard is that his offending does not require any physical strength or effort. He offends by his words and delivering his words to those he targets, ex partners, her employer, her volunteer groups, her neighbours. It is not an age or physical health limited offence cycle.

[283] The most supporting evidence for the defence position is found in the final cross examination testimony of Dr. Gray:

“1. Q. Is Mr. Hamelin “likely” to cause severe psych - psychological trauma

in the future?

A. What I think is yes … like I said without … like, going through like my whole report, … there’s an escalating pattern, very similar types of offences.

Q. … I’m just wondering what does “likely” mean in that sentence?

A. I don’t think if I can put a percentage, but if – if you want – if you want me to tie down a percentage, I guess more than 50 percent because it’s likely, and less than 50 is an not likely.

Q. Unlikely. As in probable is 50 percent plus 1, and improbable is 50 percent minus 1.

A. Yes.

Q. …well, here's another question about levels of risk. I asked you about likelihood. You're saying his risk is high. What is - what does that mean? Can you unpack that a little bit? If not in percentages, then does that mean likelihood, 50 percent plus 1, or – or something different?

A. …knowing that I can’t really put a percentage figure on Mr. Hamelin’s actual risk, what I was doing was in each stage, just like if we can break it down into parts, is each stage reasonably foreseeable and likely to happen? Like, is he going to get into another relationship? He’s only 42. He’ll probably get in another, like, it seems like almost – I don’t wanna say a certainty, but it’s quite likely, given his personal characteristics that he’ll get into another relationship, another romantic relationship. And will that relationship end? Probably it will, given the past history. Will he have problems with that? Probably. And then the question, I guess, that maybe you’re most focused on is, when he breaks up, will there be his actions to the extent he'll cause psychological damage to the person? So, I’m going on past history, the – the index victim, and the last victim, [AB], describe psychological harm, severe psychological harm from the victim impact – impact statements. So, is the next one gonna have that? I – like, it’s – it’s based on so many other factors. Like, is he gonna change with therapy? Is he – are our measures gonna stop him completely from communicating once things fall off the rails? Is the person able to escape somehow, or I don’t know, and avoid any kind of contact on their own by whatever measure she can? So, there are other factors. But I’m just going on the – the past history, what’s going on in terms of severity over time.

Q. But to be clear, the – the kind of relationship that the Correctional

Service of Canada would be concerned about would be any relationship. But the kind of harm that you have spoken about and are trying to assess the risk of, is – is a longer term relationship, right?

A. Yeah.

Q. Okay. And isn’t it fair to say that given the good supervision and – and close management of someone like Mr. Hamelin, by someone like Parole Officer Hebert (ph), the kinds of problems and escalation such as sending a threatening e-mail or making a threatening phone call, or doing any of the kinds of things that he’s been convicted of doing, would be detected at the first instance because a victim, presumably, would alert the parole officer at the first time something criminal or very concerning would happen.

A. Yes. I – you’ve got a point there. Assuming that the – the – the partner didn’t have fear that there’d be retribution or – or revenge by Mr. Hamelin if she called the parole officer and reported what he’s doing.

Q. Right. So, differentiating the kind of offences Mr. – Mr. Hamelin has been convicted of, and the kind of severe psychological harm that – that all of us are trying to prevent, and avoid, unlike a sexual offence that can happen in seconds, unlike someone pulling a gun or a bat and inflicting massive, physical harm on someone. The kind of harm that Mr. Hamelin causes to his victims is the kind that, one, is easily detectable, and two, is some – it occurs over a – a continuum of time where the first missteps can and – and – and most likely will be detected and – and remediated.

A. Yeah. That’s – I think that’s a fair point.

A. Yeah. So, I’d say that, like, if you, in fairness to you, or I guess to your client, the times where with AB (ph) where there’s continual breaches of his probation, contact, back and forth, that was under conditions of provincial probation. And my understanding of a long-term supervision order, it’s a bit tighter and the consequences of a breach are more severe. So, potentially, a parole officer under a LTSO could reincarcerate him if there’s – I guess what they have a – and the power to do that based on, say the, like, the new girlfriend saying, ‘You know, he’s been yelling at me much more lately. I’m afraid he’s gonna go off or something.’ If that’s enough, so, I – I don’t know legally, like, how - how quickly a probation officer could bring someone in, not because they’re not reporting a relationship, but because of tensions in the relationship.

Q. … I guess I’m suggesting to you that the kind of criminal cycle that Mr. Hamelin has – has shown, is the kind of behaviour that is easily detected long before severe psychological harm would – would ensue. After repeated and – and – and – more intrusive each time, and more harmful each time, these acts became as it escalate.

A. Yeah. I – I agree with that.

Q. Given that he has not been very much treated to any measurable extent,

and you have identified the kind of treatment he – you think he needs, that hasn’t been tried. And the kind of medication, perhaps. I mean there’s an ever-evolving list of off-label medications that could be tried. And therapy that might be geared to him. In that sense, isn’t he treatable? I mean, isn’t it worth a try to try all of those things? Not just one little thing, but therapy, programming, new medications. You know, he’s treatable. You can’t say he’s not treatable.

A. You could try those new things, but it’s – I’m not sure I’m defining treatable as being someone who hasn’t exhausted every conceivable method of treating them. I – the concern I have is – is the pattern of his engagement with treatment. How it’s not been successful. Even though he hasn’t had maybe the – the types of treatment that would be best. He hasn’t had a full try at that. It just – there’s been no evidence to kind of hook onto to say, ‘Well – he’ll do well, just like he did on this particular treatment in the past, this is an even better type of treatment, and he has done well in the past, so maybe he’ll do well with this.’ There’s a – like, there’s no precedent to help, you know, give hope about the future treatment actually working.

Q. … So, I’m just saying it’s possible and he does have some indications that if he’s motivated by the – the right environment and the right people, he can respond to treatment.

A. Yeah.

Q. And – and there are lots of kinds of treatment that we’ve gone over that hasn’t been tried. Art therapy is one example, specifically geared to his love for art that – that – that might work.

A. Could be of assistance.

Q. I mean it’s not the same as a sex offender who has gone through the moderate and intensity program and in a high intensity program, and then reoffended and then reoffended. Which – which as you know, happens a lot. And in those kinds of cases, it’s – it’s much more clear to say, you know, he has been engaged with specific treatments, designed to assess his specific needs, and – and he’s failed. Once or twice, or...

A. Yeah.

Q. ...sometimes three times. And reoffend.

A. … Yeah, yeah, it’s different than that case, yeah.

Q. Well, I’m just saying, I guess, the opinion that he’s - hasn’t responded to treatment in the past is – is a little bit coloured I would say. And – and it’s not as clear cut as a – as a lot of offenders, I – I would say.

A. Okay, I’ll say that, sure.”

(Emphasis added)

Conclusion

[284] Dr. Gray’s psychiatric opinion is that the evidence indicates intractability. His opinion is that it is highly unlikely that Mr. Hamelin will develop the necessary internal controls with time and treatment for him to manage his offending behaviours. His opinion is that Mr. Hamelin poses a high risk to reoffend.

[285] Dr. Gray identified the external controls necessary to manage Mr. Hamelin’s risk but identified no timeframe, and no prediction as to degree of success which could or would be achieved.

[286] As Justice Molloy stated in Medford,

(at this stage) … I must consider whether I am satisfied that one of the other 2 options will protect the public. If I am not satisfied, I am required to impose an indeterminate sentence. Further, if I am uncertain whether the public would be satisfied, I must refuse to exercise my discretion to impose a lesser sentence. (para. 113)

[287] The court in Boutilier stated the same principle,

Section 753(4.1) resolves “any uncertainty about the offender's amenability to treatment in favour of indeterminate detention.” (para.119)

[288] Although further risk management therapies, programs, treatments, residency and supervision are available, I am left with uncertainty in Mr. Hamelin’s case about whether any risk management will be achieved, or when.

[289] As stated in Boutilier,

“If there is not a reasonable expectation that the public will be adequately protected against the commission of another serious personal injury offence, indeterminate detention must be imposed.” (para. 113)

[290] Considering all of the evidence and the applicable legal principles, I have no reasonable expectation that a lesser penalty will adequately protect the public against him committing a serious personal injury offence.

[291] At its highest, the defence position of a 3 year determinate sentence followed by a 7 to 10 year LTSO, with the High Intensity ICPM within a penitentiary and the other treatment therapy recommended, LTSO with very strict and restrictive conditions, with the uncertainty of how long the necessary residency condition and close supervision such as Mr. Hebert will remain in place, gives rise to only a hope that his risk of harm will be reduced.

[292] The mere hope of a good outcome is not sufficient.

[293] Such speculation does not amount to reasonable expectation.

[294] For these reasons, I find Mr. Hamelin to be a dangerous offender and I impose an indeterminate sentence of imprisonment for the 3 convictions of criminal harassment, concurrent to each other. The sentences for the remaining counts are concurrent to those sentences and each to each other:

• 2 counts publish a defamatory libel: 2 years each;

• Threat to burn home: 1 year;

• Mischief: 1 year;

• Possession stolen property: 1 year;

• 2 counts breach court orders: 20 months each.

Ancillary Orders

[295] The ancillary orders sought by the Crown are granted.

• DNA - secondary

• S. 109 – life

• Non-communication with HN - 743.21

Tranmer J.

Released: March 26, 2024

Background

Agreed Statement of Fact

Order for Assessment

Consent of the Attorney General

The Issues

The Evidence on the Application

Victim Impact Statement of HN (filed on consent)

The Offender

Criminal Record

The 3 Breaches of Long-Term Supervision Order

Breach #1

Breach #2

Breach #3

Dr. Jonathan Gray

Mr. Hamelin's Version of these Offences and Prior Offences

Mr. Hamelin's Opinion on his past Treatment Interventions

Review of Psychiatric Symptoms

Substance Use History

Family Psychiatric History

Social and Occupational History

Future Plans

Mental status examination

Ms. Astri

Previous Assessments and Treatment Interventions

The Acquired Brain Injury, 1997

Record of Community Supervision and Summary of Charged Incidents

DSM-5 Diagnoses

Risk Assessment

Psychopathy Checklist

Dangerous Offender Designation

Pattern of behaviour

High Likelihood of Recidivism

Mr. Hamelin's Behaviour is Intractable

Can the risk be managed?

Opinion and Recommendations on Release Conditions and their Feasibility

Cross examination

Stephen Eros

Cross examination

Jennifer Howie

Cross examination

Karen Thomson

Cross examination

Institutional Records

No Success with Previous Treatment

Mr. Hamelin Addressed the Court

Applicable Legal Principles

Analysis

Designation Stage

Serious Personal Injury Offence

A Threat to Mental Well Being

Pattern of Repetitive Behaviour

Future Risk and Intractability

Penalty Stage

Other Legal Principles Applicable at the Penalty Stage

The Section 718, and on, Principles Apply

Aggravating Factors

Mitigating Factors

Reasonable Possibility

Harm Reduction not Risk Elimination

Mr. Hamelin’s Personal Circumstances

Mr. Hamelin’s Words to the Court

Does Mr. Hamelin’s Conduct Meet the Requisite Level of Dangerousness

Longest Previous Sentence

Pre Sentence Custody

The Gravity of the Offence

The Degree of Responsibility of Mr. Hamelin

The History of Breaches

Conclusion

Ancillary Orders

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Statutory Provisions 4

Legal Tests 1

Legislation 1