R. v. Tibando, 2024 ONSC 1426

COURT FILE NO.: CR-21-90000374 DATE: 20240308

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – RONALD TIBANDO Defendant

COUNSEL: Joaquin Canton, for the Crown Tyler Smith, for the Defendant

HEARD: November 22, 23 and 24, 2023 and January 19, 2024.

REASONS ON DANGEROUS OFFENDER APPLICATION

schabas j.

Overview

1On August 4, 2022, I found the Defendant, Ronald Tibando, guilty of three offences: break and enter with intent to commit assault with a weapon, assault with a weapon, and aggravated assault. I found him not guilty of sexual assault and forcible confinement. My Reasons for Judgment can be found at R. v. Tibando, 2022 ONSC 3893.

2Following the release of my Reasons the Crown commenced the process to seek an order that Mr. Tibando be declared a dangerous offender under s. 753 of the Criminal Code and be sentenced to an indeterminate period of custody. Following submissions, pursuant to s. 752.1 of the Criminal Code, on October 14, 2022 I remanded Mr. Tibando for an assessment. Mr. Tibando chose not to participate in the assessment by Dr. Jonathan Gray, but Dr. Gray nevertheless completed a report on Mr. Tibando based largely on his review of past records and assessments of Mr. Tibando. Dr. Gray concluded that Mr. Tibando met the criteria for the legal definition of a dangerous offender.

3On March 28, 2023, the Deputy Attorney General signed his consent to proceedings being instituted to declare Mr. Tibando to be a dangerous offender. Dr. Gray’s report and extensive supporting materials relating to Mr. Tibando’s background, including information on his criminal past, previous reports on him and his conduct in institutions, including psychiatric and psychological opinions, were filed at the hearing. Dr. Gray testified. The Crown also called as a witness Ms. Marlene Do Rego of Correctional Services Canada (“CSC”). Mr. Tibando did not call any evidence, although both parties submitted written argument at the conclusion of the proceeding.

4The Crown seeks an order that Mr. Tibando be designated as a dangerous offender pursuant to s. 753(1)(a)(i) and (ii) of the Criminal Code and submits that the court should impose an indeterminate sentence.

5Counsel for Mr. Tibando does not dispute that Mr. Tibando has committed offences which are “serious personal injury offences”, but submits that the Crown has not established beyond a reasonable doubt that the other requirements to declare Mr. Tibando a dangerous offender have been met; in particular, that Mr. Tibando’s conduct constitutes a pattern of repetitive or persistently aggressive conduct, that there is a high likelihood of harmful recidivism and that Mr. Tibando’s conduct is intractable.

6Mr. Tibando therefore seeks dismissal of the application or, in the alternative, that he be designated a long-term offender pursuant to s. 753.1 of the Criminal Code and that a long-term supervision order (“LTSO”) be imposed to minimize the risk of re-offending and to protect the public. As a further alternative, even if it is established that Mr. Tibando should be designated a dangerous offender, he should not receive an indeterminate sentence but instead receive a sentence for his offences and then be subject to an LTSO pursuant to s. 753(4)(b) of the Criminal Code, as there is a reasonable expectation that such a lesser measure will adequately protect the public against the offender’s violent recidivism.

7For the reasons that follow, I am not satisfied beyond a reasonable doubt that Mr. Tibando should be designated as a dangerous offender. However, I am satisfied beyond a reasonable doubt that Mr. Tibando should be designated a long-term offender under s. 753.1(1) of the Criminal Code.

8As I will review, although Mr. Tibando has committed very serious offences, most of those offences occurred decades ago. While not excusing or diminishing the seriousness of the offences of which I have found him guilty and which constitute a “pattern” under s. 753(1)(a)(i) and (ii) of the Criminal Code, I am not satisfied beyond a reasonable doubt that there is a high likelihood of Mr. Tibando committing violent offences in the future or that his violent conduct is intractable. That does not mean that he does not pose a substantial risk of harmful recidivism, but in my view, there is a reasonable possibility that this risk can be managed in the community through a long-term supervision order. The supervision order will be for 10 years following Mr. Tibando’s release from custody. As a long-term offender, Mr. Tibando will be under the supervision of CSC for the duration of the order.

9Mr. Tibando has been in custody since shortly after the offences which were before me were committed at the end of August, 2018, or five and a half years. As this is pre-trial and pre-sentence custody served in a detention centre, Mr. Tibando has effectively served the equivalent of well over eight years. In my view, a total of nine years is a fit and proportionate sentence for the offences he committed in 2018, having regard to the paramount objectives of denunciation and deterrence, while recognizing and giving consideration to the objective of rehabilitation and the principle of restraint.

10After calculating credit for his time served in pre-sentence detention, I have concluded that Mr. Tibando has 113 days remaining to complete that nine-year sentence. This will give CSC time to formulate a correctional release plan, and determine conditions for Mr. Tibando’s LTSO to ensure that the risk posed by Mr. Tibando upon completion of his custodial sentence is addressed appropriately.

Applicable law and legal principles

11The starting point of a dangerous offender application is to recognize that such proceedings are sentencing proceedings. Accordingly, the sentencing principles and guidelines in ss. 718 to 718.2 of the Criminal Code must be considered: R. v. Johnson, 2003 SCC 46, at para. 23; R. v. Steele, 2014 SCC 61, at para. 40. While the primary objective of the dangerous offender provisions is the protection of the public, this does not mean that other factors, such as the potential for rehabilitation of the offender, are ignored.

12To have the Court designate Mr. Tibando as a dangerous offender, the Crown must prove two things beyond a reasonable doubt: (1) that an offence for which he has been convicted by me is a “serious personal injury offence” as defined in s. 752(a) of the Criminal Code; and (2) pursuant to s. 753(1)(a) of the Criminal Code, that Mr. Tibando “constitutes a threat to the life, safety or physical or mental well-being of other persons”. The second branch is met, and the offender shall be found to be a dangerous offender if the Court finds one or more of the following:

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

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

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

13In contrast, where the Court does not find an offender to be a dangerous offender, the Court may, pursuant to s. 753(5)(a) of the Criminal Code find an offender to be a long-term offender under s. 753.1(1) if it is satisfied that:

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

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

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

14If a person is found to be a dangerous offender, pursuant to ss. 753(4.1) of the Criminal Code 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 ss. 753(4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.” Those lesser measures are to impose a sentence of at least two years imprisonment and that the offender “be subject to long-term supervision” for up to 10 years, or to simply impose a sentence for the offence.

15Where an offender is found to be a long-term offender, pursuant to s. 753.1(3) of the Criminal Code, the Court shall:

(a) 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

(b) order that the offender be subject to long-term supervision for a period that does not exceed 10 years.

16The Supreme Court of Canada has provided helpful guidance on the interpretation and application of these provisions, some of which I note below.

17In R. v. Lyons, [1987] 2 SCR 309 at para. 43, the Court described four criteria that must be satisfied to find an offender to be a dangerous offender:

(i) the offender has been convicted of a “serious personal injury offence”;

(ii) this offence is part of a “pattern of behaviour which has involved violence, aggressive or brutal conduct, or failure to control sexual impulses”;

(iii) the pattern of conduct, or harmful recidivism, is “very likely to continue”; and

(iv) the violent conduct is “substantially or pathologically intractable.”

18It is clear that the assessment of the risk of harmful recidivism is prospective, and that in assessing the future threat posed by the offender one must consider treatment prospects and other factors which may reduce or diminish the threat to the community going forward: R. v. Boutilier, 2017 SCC 64 at para. 46.

19Although ss. 753(1)(a)(i) of the Criminal Code uses the word “likelihood”, in Lyons the Supreme Court used the term “very likely”, and in Boutilier the Court used the term “high likelihood of harmful recidivism” in discussing the standard to be applied in finding an individual to be a dangerous offender. As McArthur J. pointed out in R. v. Connell, 2022 ONSC 4703 at paras. 26 and 27, the word “likelihood” is found in the sections for both dangerous offenders and long-term offenders. However, as noted in Boutilier, the long-term offender criteria impose a less onerous burden on the Crown as the offender is not subject to the risk of an indeterminate sentence, and so some difference in the standard is appropriate. McArthur J. was of the view that “the term likelihood in the dangerous offender context is a very high standard that at a minimum should be equated with probability.” As she continued at para. 28:

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

20Intractable conduct is behaviour that the offender is unable to surmount or overcome. The assessment of this is both prospective and retrospective. It is not determined merely by past conduct. This ensures “that only offenders who pose a ‘tremendous future risk’ are designated as dangerous”: Connell at para 29, citing Boutilier at para. 46. Intractability requires consideration, therefore, of whether the offender can be treated for his conduct: Boutilier at paras. 42-45.

21It must also be kept in mind, as the Court of Appeal observed in R. v. Brown, 2021 ONCA 320 at para. 29, “that designating an individual as a dangerous offender is a finding of last resort. In other words, it is a finding that should only be arrived at if no lesser determination is appropriate in all the circumstances.”

22Similarly, and consistent with the general principle of restraint in sentencing offenders, if an offender is found to be a dangerous offender, the judge “must first exhaust the less coercive sentencing options to address this risk of recidivism before imposing a sentence of indeterminate detention in a penitentiary”: R. v. Spilman, 2018 ONCA 551, 362 CCC (3d) 415, at para. 30, citing Boutilier, at para. 69. Treatability is also not limited to the designation stage but must also inform the determination of an appropriate sentence: Boutilier at paras. 42-45.

Mr. Tibando’s criminal past

23Mr. Tibando has a lengthy, serious, but very dated criminal record. He was born in 1964 and is almost 60 years old. He has spent much of his adult life in jail.

24In October 1981, Mr. Tibando was found guilty of two counts of rape and of theft of an automobile, offences that took place in 1980 when he was 16 years old. Aside from the Indictment, which indicates that Mr. Tibando pleaded not guilty to the rape charges but was found guilty by a jury, the only available details of these offences are found in a police synopsis, alleging that Mr. Tibando, on two separate occasions approached women in their 20s in parking lots and forced them to engage in oral and vaginal sex. In the second incident it was alleged he used a screwdriver as a weapon. Mr. Tibando received a total sentence of eight years in prison for these offences.

25Mr. Tibando was also convicted of assault causing bodily harm on March 17, 1982 and sentenced to one year concurrent with the sentence imposed in 1981. Little is known about this offence.

26In 1986, Mr. Tibando was granted day parole, aged 22.

27Two and a half years later, on April 30, 1989 and while still on a supervision order, Mr. Tibando followed a woman off a bus late at night and sexually assaulted her, including vaginal intercourse. He had been drinking prior to the incident. Mr. Tibando apologized to the woman immediately afterwards. The victim did not report the offence at the time as, at her request, Mr. Tibando promised meet with her and “to learn about God.” They then met every day until November 10, 1989 to engage in Bible study together. Apparently, Mr. Tibando abstained from drugs and alcohol during that time and they did not have a sexual relationship as the woman believed in celibacy until marriage. However, on November 10, 1989, Mr. Tibando became angry and sexually assaulted the woman again. In the course of this assault he also choked the victim to the point where she briefly lost consciousness. Again, Mr. Tibando apologized, and he took the woman to the hospital because of the injury to her neck. The assault was later reported to police and Mr. Tibando turned himself in.

28Mr. Tibando pleaded guilty to sexual assault and aggravated sexual assault in May 1990. He was sentenced to five years and 15 years, consecutive, for a total of 20 years. In 1993, the Court of Appeal reduced the sentence for aggravated sexual assault to 10 years, for a total sentence of 15 years.

29In May 1993, while serving his sentence at Warkworth Institution, Mr. Tibando committed further violent offences against two female psychologists. He was found guilty of assault causing bodily harm after punching a psychologist in the face and pushing her to the ground. When another psychologist attempted to intervene, Mr. Tibando grabbed her and confined her in a small room with him until other inmates intervened and ended the offence. Mr. Tibando was found guilty of forcible confinement respecting the second victim. He was sentenced to an additional seven years in prison, which was subsequently reduced to five years by the Court of Appeal, consecutive to the 15 years he received for the 1990 offences, for a total sentence of 20 years.

30Mr. Tibando was repeatedly denied parole and served every day of his twenty-year prison sentence, until his warrant expiry date of September 23, 2010. During this lengthy prison term, it is reported that Mr. Tibando committed various acts of misconduct, such as using drugs, engaging in verbal abuse and harassment, punching another inmate and other aggressive acts. However, he was not convicted of any criminal offences.

31When released in 2010, Mr. Tibando agreed to a Recognizance Order for 24 months made pursuant to s. 810.2 of the Criminal Code, which the Crown had sought due to his risk of reoffending. This included conditions that he abstain from consuming alcohol, stay out of bars and observe a curfew. He was also ordered, among other things, to attend the Sexual Behaviours Clinic at the Centre for Addiction and Mental Health (“CAMH”) and to consent to the release of all of his medical and psychiatric records to CAMH and to the police.

32Despite very limited assistance and support, Mr. Tibando found employment, a place to live and had relationships over the course of the following year. He also saw a psychologist at CAMH. In August and September 2011, however, he attended a bar a number of times and was arrested for breach of his Recognizance on October 3, 2011. On April 13, 2012 Mr. Tibando pleaded guilty to three breaches of his conditions and, after credit was given for his time in pre-trial detention, he was sentenced to 15 and a half months in custody.

33On February 22, 2013, Mr. Tibando was released, again agreeing to an order under s. 810.2 containing several similar conditions to the 2010 order but lasting only 12 months.

34Mr. Tibando did not reoffend again until the offences were committed on August 30, 2018, five and a half years after his release. I refer to them as the “index offences” below.

The August 2018 offences

35My Reasons for Judgment set out in detail the facts of the index offences committed in August 2018. In short, after spending the evening in a bar, consuming alcohol, Mr. Tibando committed a break and enter when, in the middle of the night he entered the bedroom of his neighbours in a rooming house holding a knife. When the woman and her teenage son woke up and saw Mr. Tibando standing over them, a brief scuffle ensued between Mr. Tibando and the son, resulting in cuts to the boy’s shoulder and arm. The fighting stopped, Mr. Tibando apologized and applied first aid to the boy. The three then discussed their difficulties as neighbours. Mr. Tibando had made complaints that the woman and her son were not doing their share of cleaning and other chores in the common areas. Mr. Tibando asked them not to report the matter to the police. However, they reported the incident later that day after having the boy’s injuries treated at a hospital. Mr. Tibando was arrested a few days later at a cottage.

36Following a trial, I found Mr. Tibando guilty of break and enter with intent to commit assault, assault with a weapon and aggravated assault. I found him not guilty, however, on charges of sexual assault and forcible confinement.

Analysis – applying the law to the facts

Step One – a serious personal injury offence

37It is conceded that the Crown has met the first step of the dangerous offender exercise. Mr. Tibando has been convicted of aggravated assault, which is a serious personal injury offence described in s. 752(a) of the Criminal Code. The offence involves the use or attempted use of violence against another person (752(a)(i)) and involves conduct endangering or likely to endanger the lives or safety of another person or is likely to inflict severe psychological damage on another person (752(a)(ii)). There is no requirement that the offence itself meet an objective level of seriousness to be a serious personal injury offence, nor must it be as serious, or more serious, than the offender's previous offences.

Step Two - threat to the life, safety or physical or mental well-being of other persons

38The second step of the dangerous offender process is to determine whether Mr. Tibando “constitutes a threat to the life, safety or physical or mental well-being of other persons”. In this case, the Crown relies on subsections (i) and (ii) of s. 753(1)(a) of the Criminal Code. As set out in Lyons, the Crown must prove beyond a reasonable doubt that (1) Mr. Tibando’s behaviour, including in the index offences, constitutes a “pattern” of repetitive or persistent aggressive behaviour; (2) that there is a “high likelihood” of harmful recidivism in the future; and (3) that his conduct is “intractable.”

A pattern of repetitive behaviour: ss. 753(1)(a)

39In R. v. Naess, 64 W.C.B. (2d) 278, at para. 61, Hill J. stated:

A pattern is a repeated and connected design or order of things as opposed to a differentiated or random arrangement. Repetitive or persistent connotes ‘constantly repeating’ (R. v. Yanoshewski (1996), 104 C.C.C. (3d) 512 (Sask. C.A.)) or ‘renewal or recurrence of an action or event’; ‘Continuous; constantly repeated’; ‘Existing continuously in time; enduring’: The Shorter Oxford English Dictionary, supra at 1560, 1798.

40In R. v. Langevin, 45 OR (2d) 705, the Court of Appeal held that a pattern “ is not based solely on the number of offences but also on the elements of similarity of the offender's behaviour.” More recently, in R. v. Wong, 2016 ONSC 6362 at para. 198, McWatt J. (as she then was) stated that “[a] pattern…must encompass a number of relevant similarities between each example of the pattern being considered. There may be differences between the examples, however, ‘so long as the differences leave the key significant relevant elements of the pattern in place.’ (R. v. Dow, 1999 BCCA 177, [1999] BCJ No. 569 (C.A.) at para. 25).” McWatt J. also noted, at para. 199 that “[w]here there are fewer offences, more precise similarities will be required in order to establish the pattern.” Further, quoting from the Court of Appeal in R. v. Jones (1993), 63 OAC 317, where there is a “degree of violence or aggression threatened or inflicted on the victims, the requirement for similarity in terms of the kinds of offences is not crucial when the incidents of serious violence and aggression are more numerous.”

41Determination of this issue requires the Court to consider Mr, Tibando’s prior offences and the index offences. The index offences must “contain enough of the same elements of unrestrained dangerous conduct to predict that he will likely offend in the same way in the future”: R. v Hogg, 2011 ONCA 840, 287 OAC 82, at para. 40, cited by McWatt J. in Wong at para. 199.

42Mr. Tibando’s prior offences in 1980, 1982, 1989 and 1993 all involved crimes of violence, including rape, assault causing bodily harm, sexual assault, aggravated sexual assault and forcible confinement. With the exception, possibly, of the 1982 offence, they all involved aggression against women. The index offences also involve violence and aggression against a woman. The Crown submits that this is a pattern: that Mr. Tibando, when released from custody is unable to restrain his aggressive and violent behaviour, especially when angry and under the influence of alcohol, and this is particularly so respecting women.

43On the other hand, counsel for Mr. Tibando submits that the index offences are so different from the prior sex-related offences that they cannot form part of a pattern of repetitive behaviour that the section was intended to capture. Counsel cautions that I must not put much weight on the circumstances of the 1980 offences as the only information about them stems from unreliable police synopses, not findings by a judge or sworn evidence. As stated in R. v. A.B., 2017 ONCJ 419, 140 WCB (2d) 188, at para. 12, “the facts set out in a police synopsis at the time of arrest do not always reflect the facts that are later proved at trial or admitted on a guilty plea. The synopses are reliable only to establish the date they were made and…date of arrest”, citing R. v. J.K.L., 2012 ONCA 245, 290 OAC 207, at paras. 88-94.

44As I have noted, no information has been provided about the 1982 conviction for assault causing bodily harm. Nor can I find, beyond a reasonable doubt, that there is a sexual component to the 1993 offences committed against the psychologists in the penitentiary. Although there is a suggestion of a sexual motivation for those offences in a report of a group therapy session, that is weak hearsay, and sexual motivation was explicitly rejected by the sentencing judge, LaForme J. (as he then was).

45Despite the absence of reliable details of the 1980 and 1982 offences, I can nevertheless draw the conclusion from the charges and sentences imposed that the crimes were serious acts of aggression, and that the rapes in 1980 involved women. Similarly, the offences in 1989 and 1993 involved aggressive acts of violence against women.

46A pattern of repetitive behaviour, however, requires “enough of the same elements of unrestrained dangerous conduct to be able to predict that the offender will likely offend in the same way in the future”: Hogg, at para. 40. As Feldman J.A. continued for the Court of Appeal, requiring the same elements “will ensure that the level of gravity of the behaviour is the same, so that the concern raised by Marshall J.A. (R. v. Newman (1994), 115 Nfld. & PEIR 197 (NL C.A.), at para. 72) – that the last straw could be a much more minor infraction – could not result in a dangerous offender designation.” Nevertheless, “the offences need not be the same in every detail.”

47Arguably, the index offences here are less serious than Mr. Tibando’s earlier offences. But strong similarities exist. Mr. Tibando’s conviction for aggravated assault stemmed from the fight with and injuries to the teenage boy, but this occurred after Mr. Tibando, angry and perhaps intoxicated, entered the rooms belonging to the woman and her son. The confrontation began when the woman woke up to see Mr Tibando looking at her holding a knife. As I noted at para. 61 of my Reasons, this was a “harrowing and traumatic” act of aggression against the woman as well as her son. It may not have been motivated by sex, but neither were the events in 1993. Rather, the consistent thread of the offences is angry acts of aggression and violence towards women.

48I am satisfied beyond a reasonable doubt, therefore, that there is a pattern of repetitive criminal behaviour by Mr. Tibando, also present in the index offences, which shows a failure to restrain his behaviour.

49In reaching this conclusion I am aware that the prior offences conforming to the pattern were committed a very long time ago. The index offences occurred in 2018, 25 years after the most recent previous offences, in 1993, and almost 30 and 40 years after the earlier sexual offences. However, Mr. Tibando has been incarcerated for much of his adult life – 33 of the past 44 years since he turned 16 in 1980 – and as the Crown points out, when he has been released, he has committed aggressive criminal acts against women, including in 2018.

A pattern of persistent aggressive behaviour

50In R. v. Smith, 2023 ONCA 575, the Court of Appeal recently reviewed the meaning of “persistent” in s. 753 of the Criminal Code. Persistent conduct, it is stated, is “chronic behaviour that persists over time but need not be continuous”: Smith at para. 22. Some decisions equate “persistent” and “repetitive” but others have stated that something more is required, such as “proof that the behaviour continued in the face of obstacles or remonstrance” or that the conduct is “enduring” or “constantly repeated”: Smith at para. 27, citing R. v. Y. (J.) (1996), 141 Sask. R. 132 (C.A.) at paras. 25-26. At the same time, a “continuous chain of offences is not required” and a gap in time between offences, even a lengthy gap spanning many years, “is not determinative” where there is a pattern of behaviour meeting the rest of the test in subsection 753(1)(a)(ii): Smith at para. 37.

51For largely the same reasons as set out above regarding a pattern of repetitive behaviour, I am also satisfied that the evidence establishes, beyond a reasonable doubt, a pattern of persistent aggressive behaviour by Mr. Tibando in the past and in the index offences committed in 2018. He has persisted in committing aggressive acts of violence against women over a lengthy period of time. Although there have been significant gaps between offences, the pattern, it may be said, persists.

52I am also satisfied beyond a reasonable doubt that Mr. Tibando’s persistent aggressive conduct shows a substantial degree of indifference by him regarding the reasonably foreseeable consequences of his behaviour on others.

53In R. v. Williams, 2018 ONSC 2030 at para. 254, Hill J. stated that “indifference…looks to notions of disregard, lack of sympathy or empathy, callousness and coldness, lack of concern or sensitivity, etc.” In Wong, McWatt J. stated at para. 224 that to satisfy this element, the Crown “must demonstrate that the offender has a conscious, but uncaring awareness of causing harm to others.”

54Although Mr. Tibando apologized to some of his victims – such as in 1989 and in 2018 – showing regret for his actions, this also shows that he is conscious of the harm he has caused but committed the acts regardless of the foreseeable consequences of his behaviour. On the other hand, as I discuss below, the fact that his prior conduct shows a substantial degree of indifference does not mean that Mr. Tibando is entirely indifferent to the consequences of his actions, or that his conduct is intractable.

Likelihood of harmful recidivism and intractability

55As the Supreme Court stated in Lyons, finding that there is a pattern of repetitive behaviour or of persistent aggressive behaviour is not sufficient. The Court must also assess the future risk and threat to safety posed by the offender. In order to designate someone as a dangerous offender, the Crown must, at this stage, establish beyond a reasonable doubt “a high likelihood of harmful recidivism and the intractability of the violent pattern of conduct”: Boutilier at para. 46. This includes consideration of future treatment prospects and requires consideration of the evidence of Dr. Gray. It must be remembered, however, that “it is for the court, and not the psychiatrist, to determine whether the four criteria exist in any given case”: R. v. Villeneuve, 2022 ONSC 2188 at para. 107, citing R. v. Walsh, 2017 BCCA 195, at para. 34.

Dr. Gray’s evidence

56Dr. Gray is an expert in forensic psychiatry. He has prepared many reports for these types of hearings and testified dozens of times. Counsel for Mr. Tibando did not contest his expertise.

57As Mr. Tibando refused to be interviewed, Dr. Gray recognized there were limitations to his report. For example, without the benefit of an interview Dr. Gray said that he could not learn of Mr. Tibando’s perspective on the events leading to the 2018 offences, including any stressors or psychiatric symptoms he may have been experiencing at the time.

58The lack of an interview also limited his ability to form recommendations on how to manage Mr. Tibando’s risk of recidivism in the community, as it wasn’t clear to him what conditions Mr. Tibando would agree to or comply with if released. Nevertheless, Dr. Gray’s view was that he could provide an assessment based on the extensive monitoring and surveillance of Mr. Tibando for much of his adult life, including many psychological and psychiatric assessments conducted while Mr. Tibando has been in custody.

59Dr. Gray’s report and evidence was helpful in providing extensive background information on Mr. Tibando’s life, his offences, his challenges, his time in custody, and assessments of his state of mind and likelihood of reoffending. I review Dr. Gray’s evidence below.

Tibando’s background

60Mr. Tibando was born to a young mother in April 1964. He never knew his father. Because of financial difficulties, he was initially raised by several different caregivers. His stepfather adopted him when he was two and a half years old. He has three younger half-brothers. In 2005, Mr. Tibando reported to a prison psychiatrist that he had been sexually abused as a youth, by a neighbour and twice by his cousins.

61Mr. Tibando became involved in street gangs in early adolescence and began to commit break and enters at age 10. When he was 14, he was sent to training school at the recommendation of the Family Court, as he was “repeatedly getting into trouble both at home and in the community.” Records from that time referred to him as “a boy of average intelligence who was quite confused, frustrated and depressed.” He completed grade 10 but was then expelled for fighting. Mr. Tibando later completed high school as an adult in prison.

62Following training school, Mr. Tibando ran away from home and joined a large street gang where he committed more break and enters and drank and used drugs. He was then arrested for the rapes in 1980 and spent the next six years in prison, getting day parole in 1986 and a supervised release in May 1987 at the age of 23. He lived initially at a supervised half-way house, the Keele Community Correctional Centre (“Keele CCC”), and then with his parents. He had some short-term jobs and spent about a year and a half working as a dock worker where his father was a supervisor, until his arrest in October 1989, following which he was incarcerated until his mandatory release in September 2010.

63During his release between 1987 and 1989 Mr. Tibando had a relationship with a woman, Elizabeth, with whom he had grown up. They lived together for about eight months, and had a child, Meagan. According to what Mr. Tibando said during a risk assessment in 1999, he gave up his visitation rights to Meagan after Elizabeth offered to not seek child support from him. His other longer relationship during that time was with the woman he sexually assaulted in 1989.

Time in custody

64As has been noted, Mr. Tibando committed violent offences against two female psychology staff in 1993 while serving his sentence at Warkworth Institution. Dr. Gray commented that a prison note indicated Mr. Tibando was upset at the time, as the appeal of his 1990 sentence had resulted in only a five-year reduction. He also claimed to have been affected by medications which caused him to act “irrationally” and it was also reported that he was under stress because he had learned that the victim of his 1989 offences had recently married.

65Mr. Tibando was repeatedly denied parole, as his risk was “high” or “undue.” Although he took several programs addressing anger, substance abuse and sex offences, and “made progress” including showing “genuine remorse”, concerns remained about his risk throughout his incarceration, and community residential facilities were not prepared to accept him. Mr. Tibando also had behavioural issues in jail, including being charged with assaulting an officer, although the charge was later withdrawn. He tested positive for THC several times while in jail. He appears to have spent much of his time in medium and maximum security settings, frequently in segregation or isolation, and was in maximum security at Kingston as late as 2009.

September 2010 to August 2018

66On September 23, 2010, upon his release Mr. Tibando was placed on a recognizance order for 24 months, pursuant to s. 810.2 of the Criminal Code. Among other things, he was required to report to the police daily by telephone and weekly in person. He was to report changes of address, employment, not possess firearms or to frequent parks or underground parking lots and he was not to consume alcohol, non-prescription drugs, or enter a place where alcohol was served. He had a curfew and was to report all personal or romantic relationships to the police. He was also ordered to attend the Sexual Behaviours Clinic at CAMH and follow their recommended treatment programs.

67After staying in a hotel for the first three nights, Mr Tibando resided for a period of time at the home of his brother Kelly and Kelly’s wife. He met with Elizabeth and their daughter, Meagan. In due course he found his own place to live. He reported relationships with a number of women over the next several months and also connected with his brother Jason. He found work in various places, including a lawn aeration business and a construction company, and then Mr. Tibando began to operate his own scrap metal collection business.

68In September 2011 it was reported that Mr. Tibando had been frequenting a bar for a couple of weeks, including after his curfew. He was arrested and, as noted, in April 2012 he was sentenced to fifteen and a half months in custody for his breach of the recognizance order.

69As Dr. Gray notes in his report, “[i]n general, Mr. Tibando’s first stint in the community post-release went reasonably well”, noting that he was compliant with his reporting, allowing police to contact the women he was seeing, he refrained from drinking until about two weeks before his breaches, and he attended appointments at CAMH although he refused to take sex-drive reducing medications or submit to phallometric testing.

70On his release in February 2013, Mr. Tibando was also subject to an order under s. 810.2 of the Criminal Code, though with fewer restrictions and reporting obligations that in 2010 and 2011. He initially stayed with his brother Jason, but there was an argument and he left in April 2013. He earned money by collecting scrap metal and doing short-term jobs in construction, painting and other manual labour. Over the next five years Mr. Tibando continued to speak to a police officer from time to time and also voluntarily sought and attended sessions with a psychologist, Dr. John Arrowood at the sexual behaviours clinic at CAMH. He reported having relationships with women during this time.

71The last police notes before the 2018 offences, which were referred to by Dr. Gray, were from February 2018, in which Mr. Tibando described wanting to move on from a relationship that had just ended, and that he had an upcoming appointment with Dr. Arrowood.

72As the evidence at the trial indicated, in August 2018 Mr. Tibando was living in a basement rooming house and working on renovation projects. He had been living in the same place for some time, as the evidence at the trial disclosed that he got along well with the mother and the boy when they moved into the house. However, the relationship deteriorated as Mr. Tibando complained to the landlord that the woman and her son were not doing their share of cleaning and other chores in the common areas, which included a kitchen and bathrooms.

73Prior to the offences, Mr Tibando had been drinking, however there is no evidence that he took any other substances after his release in 2013.

Psychological and psychiatric assessments

74Mr. Tibando has been assessed many times by psychiatrists and psychologists since at least 1982, when he was serving his first federal sentence. In 1986, one physician wrote that “I can make no psychiatric diagnosis other than a possible personality disorder.” Another wrote that he “gave no evidence of mental illness, He was cooperative and pleasant throughout his stay ... The consensus was that he did not require the services of the Sex Offender Program.”

75In 1990, psychiatrist Dr. Ben Aron assessed Mr. Tibando over the course of about two months and, as summarized by Dr. Gray, opined that he “suffers from a number of longstanding psychological and emotional difficulties” with diagnoses of “mild depression of a chronic nature”, “a longstanding problem with alcohol and substance (marijuana-hashish) abuse disorder” and “mixed personality disorder with borderline, paranoid and antisocial features.” “Notably”, as Dr. Gray said, Dr. Ben Aron did not find any “core sexual disorder or deviation” or that Mr. Tibando suffered “from any sadistic or preferential rape pattern sexual disorders.”

76Dr. Ben Aron noted an atypical trait that Mr. Tibando showed “genuine remorse and contritrion for his aggressive behaviour”, although he also noted that Mr. Tibando blamed “external causes” for his conduct. Dr. Ben Aron, as summarized by Dr. Gray, stated “that Mr. Tibando acted out longstanding feelings of anger and resentment, while disinhibited with use of substances, with sexually aggressive behaviour towards women in the context of his then index and previous offences. Due to ‘personality deficits’, he is ‘unable to adequately cope with life's stressors and deal with them in a more adaptive socially acceptable fashion’.”

77Nevertheless, Dr. Ben Aron held out hope for Mr. Tibando and recommended ongoing psychiatric treatment, substance abuse and anger control programs and social skills training, among other things.

78Similar recommendations were made by psychologist Dr. Carl Bartashunas, who did a range of psychological tests on Mr. Tibando in 1991. He commented, among other things, that the then 27-year-old Mr. Tibando “tends to be an immature, narcissistic, self-indulgent individual who is somewhat irritable, sullen, resentful of authority, and who tends to repress his feelings, including anger...[and] tends to have difficulties accepting responsibility for his behaviour, instead transferring blame to others or to circumstances.” On the positive side, Dr. Bartashunas observed that his “recent institutional record to date, a reasonable level of self-insight in terms of being aware of his problem areas and actively requesting treatment for these problem areas.”

79In 1992 and 1993, prior to committing the offences in Warkworth, Mr. Tibando was reported to be “feeling depressed and experiencing mood swings.” He attended the psychology department 64 times in a six-month period in 1992-1993, including eleven sessions with a psychologist to help reduce his “feelings of frustration and stress”, although it is also stated that he had “difficulty translating the procedures and skills to his functioning and life outside of the sessions.”

80In 1994, psychiatrist Dr. William Johnston interviewed Mr. Tibando and reviewed his records, concluding that he suffered from a “borderline personality disorder.” Dr. Johnston suggested “an ongoing, supportive therapeutic relationship which is stable and consistent” and “a structured and dependable environment.” The same year, psychologist Dr. Ron Langevin assessed Mr Tibando, noting that his “social skills are poor” and that the 1993 offences appeared to “have been driven by frustration over lack of a therapy program for himself.”

81A 1995 report by psychologist Dr. Murray Brown also linked the 1993 assaults to Mr. Tibando’s stress and distrust, likely leading “to feelings of indignation and resentment and a projection of hostility onto others. Furthermore, since these intense feelings of unfriendliness and rage are likely to be unconscious, the offender probably does not have much control over assaultive actions which are likely to be sudden and vicious.”

82Mr. Tibando completed the Clearwater Sex Offender Program in 1996-1997. However, reports of his participation were mixed and, as summarized by Dr. Gray, “facilitators did not think his risk level had decreased with his involvement in the program.”

83Dr. Gray notes that prior to participating in the program Mr. Tibando had spent three and a half years in “solitary lock-up.” Dr. Gray refers to Mr. Tibando being placed in segregation a number of times during his twenty-year sentence. Some of this was voluntary, while other times followed misconduct. In addition, as Dr. Gray notes later in his report, “Mr. Tibando also exhibited recurrent suicidal gestures which resulted in multiple occasions in segregation and increased monitoring by psychology staff.”

84A risk assessment of Mr. Tibando was conducted by psychologists David Marxsen and Dr. David Fairweather in 1999. They concluded that Mr. Tibando showed a “callous self-centredness”, lacked insight into his criminal actions and showed no empathy for his victims. Based on their review of Mr. Tibando’s history they wrote that “it is consequently safe to suggest that these are longstanding and relatively stable aspects of his personality.” Marxsen and Fairweather also scored Mr. Tibando on the Psychotherapy Checklist Revised (“PCL-R”), which is a subjective checklist used to assess an individual’s psychopathic tendencies. Using this instrument, Marxsen and Fairweather found Mr. Tibando’s risk of violent reoffence to be “high” and that he was “not a manageable risk in the community.”

85Dr. Fairweather did another assessment in 2001, noting some improvement in Mr. Tibando’s ability to empathize, although this was “limited.” He scored slightly lower on the PCL-R scale than he had in 1999, causing Dr. Fairweather to say his risk was now “moderate-high”. However, he also used the Static-99R sex offender risk instrument which put Mr. Tibando in the “high” risk range.

86A psychological risk assessment was conducted again in 2004, although this was only based on review of Mr. Tibando’s charts as he refused to participate. In that report, psychologists Dr. Kathy Lewis and Dr. Evandro Lopes noted that, as recommended by Dr. Fairweather, Mr. Tibando had twice tried unsuccessfully to enrol in or complete sex offender treatment programs over the prior few years. However, at least one program was cancelled and he started another program but was then transferred to a different institution. This review concluded that his risk remains “moderate-high to high.”

87In the early 2000s Mr. Tibando attended and completed programs related to sexual offences, substance abuse and anger management. In 2005 he was diagnosed with depression and prescribed an anti-depressant which he remained on until 2013.

88Dr. Gray referred to three more assessments of Mr. Tibando conducted in 2005 (psychiatrist Dr. R. Lamba), 2006 (psychologist Dr. Jeanne Nadeau) and 2008 (psychologist Dr. Wagdy Loza and offender counsellor Lauren Perry). They disclose that Mr. Tibando was on anti-depressants and that he had completed the Odyssey Program for sex offenders. Dr. Nadeau commented that Mr. Tibando had “a very good theoretical understanding of the concepts conveyed” in the programs he had completed, but said he “will require help in the form of a maintenance program to continue using the tools to prevent relapse”, and recommended this when Mr. Tibando is released. As Dr. Gray noted, Dr. Nadeau also referred to an expected reduction in his impulsivity with ageing. Dr. Loza said that Mr. Tibando’s risk of non-violent or violent reoffending was “high” and also recommended continued programming to address the risk.

89As his mandatory release date approached, Mr. Tibando was seen by a behavioural scientist and a Personal Support Worker to help him address his emotions, anger management and time management. Mr. Tibando himself sought programming when writing to the National Parole Board in 2009 as his mandatory release date approached, saying he was committed to attending a sex offender maintenance program while residing at Keele CCC, and would submit to urine testing for drugs.

90Dr. Stephen Hucker, a forensic psychiatrist, interviewed Mr. Tibando in 2009 and completed a “pre-parole psychiatric assessment.” He concluded that Mr. Tibando’s risk of future sexual offending was “moderate to high”, noting that “his release into the community next year without any treatment or supports arranged is very worrisome.” Dr. Hucker recommended that Mr. Tibando reside at a supervised facility like Keele CCC and participate in the programs Mr. Tibando had requested in his 2009 letter to the National Parole Board.

91Upon his release in September 2010, Mr. Tibando met with psychiatrist Dr. Robert Dickey at CAMH for, as Dr. Gray notes, half an hour. Given the brevity of the interview I place little weight on it. Dr. Dickey diagnosed Mr. Tibando as displaying “paraphilia, coerced sexual preference”, and recommended close supervision and follow-up with Dr. Arrowood at CAMH’s sexual behaviours clinic. Dr. Gray specifically disagreed with Dr. Dickey’s “diagnosis” although as I will come to later Dr. Gray relied, inappropriately, on that diagnosis when scoring Mr. Tibando on one of the risk assessment tools.

92Mr. Tibando saw Dr. Arrowood three times between his release in 2010 and his breach charges in 2011. After his release in February 2013, he saw Dr. Arrowood again at least five times in the following year. Dr. Arrowood’s notes describe Mr. Tibando’s challenges adjusting to the community, but each note ended with Dr. Arrowood stating: “Overall there was no indication of any acute increase in risk to reoffend.”

93Although Mr. Tibando said he planned to continue to see Dr. Arrowood, he did not have sessions with him again until February and March 2018 following the end of a romantic relationship with a woman he had been seeing for a few months, who knew of his criminal past but was persuaded by friends to end the relationship when they learned of Mr. Tibando’s past. Nevertheless, Dr. Arrowood noted that Mr. Tibando felt he was “managing the situation well” and Dr. Arrowood noted that there was “no evidence of any acute increase in risk for reoffence.”

Dr. Gray’s psychiatric diagnoses

94Despite the absence of an in-person meeting with Mr. Tibando, Dr. Gray concluded based on Mr. Tibando’s history that he meets the criteria for a diagnosis of Antisocial Personality Disorder (“ASPD”). However, as Dr. Gray points out, between 40 and 60% of incarcerated males are diagnosed with this condition. He describes a “personality disorder” as “a set of maladaptive character traits that begin in late adolescence and persist into adulthood.” Features include a pattern of disregarding and violating the rights of others, impulsive and aggressive behaviour, lack of empathy, irresponsibility, deceitfulness and reckless disregard for the safety of others. Mr. Tibando showed many of these traits since prior to the age of 15, Dr. Gray observed.

95Other mental health professionals reached the same diagnosis, while several also suggested that Mr. Tibando could be diagnosed with Borderline Personality Disorder (BPD), which is “characterized by a pervasive pattern of instability of interpersonal relationships, self-image and affect and marked impulsivity that begins in early adulthood and is present in a variety of contexts.” However, as BPD is more often linked with self-destructive behaviour, Dr. Gray prefers the ASPD diagnosis which has been the “more prevalent diagnosis.”

96Dr. Gray made no diagnosis of any sexual disorders, or paraphilias, which he described as a “positive prognostic factor in terms of risk.” This is largely consistent with the opinions of others during Mr. Tibando’s years in the penitentiary system. Dr. Gray also found that there was not a basis to diagnose Mr. Tibando with any alcohol disorder, noting simply that alcohol use, as a disinhibitor, was used by Mr. Tibando to cope with his stressors and that it was involved in some of his offences and therefore “could be said to be a contributing factor to his risk of reoffence.” Nor has Mr. Tibando ever been diagnosed with any psychotic disorders such as schizophrenia, delusions or hallucinations.

Risk assessment tools

97Dr. Gray applied risk assessment tools, including the PCL-R used by Marxsen and Fairweather in 1999 and 2001, and the Static-99R tool used by Fairweather in 2001.

98The PCL-R is designed to compare a subject to the “psychological construct of psychopathy.” In his report, Dr. Gray gave Mr. Tibando a total score of 27 on the PCL-R test, placing him in the 71.4 percentile compared to a sample of North American male offenders (the average score for male offenders is between 22 and 23). He noted that this is “short of the cut-off of 30 to meet the psychological construct of psychopathy, but is still relatively elevated”, noting that “[i]t is still much higher than the average score on the PCL-R for the general population of adult males, which is approximately 4.”

99In 1999, Marxsen and Fairweather had given Mr. Tibando a score of 29.5, which was reduced in 2001 to 27.5. As the “interrator margin of error for PCL-R scoring is +/-3”, Dr. Gray scored Mr. Tibando similarly to Marxsen and Fairweather. He concluded that this suggests Mr. Tibando’s traits are “consistent and enduring.”

100The Static-99R risk assessment is, according to Dr. Gray, “the most widely used sex offender risk assessment.” It is based on objective, or “static”, factors only, such as the commission of prior sexual offences, other violent offences, and victims who were strangers, among other things. The only factor which changes is the offender’s age. Dr. Gray’s application of this test placed Mr. Tibando in the “well above average” relative risk category for sexual or violent reoffence. Based on this tool, approximately 27% of individuals with Mr. Tibando’s level of risk commit another sexual offence within five years of release and about 37% do so within 10 years.

101Dr. Gray also used the Violence Risk Appraisal Guide-Revised (“VRAG-R”), another risk prediction tool based on “specific static or historical factors in the offender.” On this instrument, Dr. Gray scored Mr. Tibando to be in the highest risk category with a “very high risk of re-offence.” Dr. Gray stated that 76% of offenders with similar scores to Mr. Tibando reoffended with a violent offence within five years and 90% do so within 15 years.

102Dr. Gray’s use of these tools is of limited assistance and the weight to be given to his conclusions was significantly undermined in cross-examination.

103Dr. Gray’s application of the subjective PCL-R tool was based entirely on dated records and views of others, from long ago. To give one example, Dr. Gray relies on an opinion of Dr. Hucker that Mr Tibando seemed “manipulative” in an interview in 2009 to give him a score for “glibness/superficial charm.” Here Dr. Gray also referred to the report by Dr. Dickey who saw Mr. Tibando once for half an hour and which Dr. Gray agreed should not have been relied on at all. Dr. Gray observed that Dr. Arrowood did not comment on such a trait in his more recent notes, but nevertheless scored Mr. Tibando in this category.

104It is not surprising, therefore, that basing his scoring on information from decades ago led Dr. Gray to find Mr. Tibando’s traits “consistent and enduring.” His conclusion also ignores the point that the tools are of limited value beyond 10 years (see, e.g., R. v. Ahmed, 2023 ONCA 676 at para. 85), a highly relevant factor when Mr. Tibando’s prior offences occurred at least 30 years ago, and the reports relied on were from his time in the penitentiary system which ended in 2010, or 14 years ago, and many are from the 1990s.

105When taken through his scoring of the PCL-R in cross-examination, Dr. Gray conceded that another competent reviewer could have reduced the scores assigned to Mr. Tibando by one to two points on each of several categories, in comparison to the scores given by Dr. Gray. Collectively, these would have reduced Mr. Tibando’s total score to 20, rather than the 27 assigned by Dr. Gray. This represents a significant divergence calling into question the value of the instrument as well as Dr. Gray’s scoring and which, if correct, puts Mr. Tibando below the average score for a male offender of 22 or 23. It also, of course, fails to consider Mr. Tibando’s actual performance in the community between 2010 and 2018.

106Dr. Gray’s reliance on the Static-99R is also of limited value. He used it as part of his prediction of the likelihood of violent offences by Mr. Tibando, when the tool is clear that it is only to be used for assessing sexual recidivism, not for violent or general recidivism. Dr. Gray seemed unaware of this limitation until it was brought to his attention in cross-examination.

107Dr. Gray used the VRAG-R tool even though another tool, the Barr-2002R, was recommended to assess the risk of violent recidivism. The cross-examination suggested that Dr. Gray may have scored Mr. Tibando too highly on the VRAG-R tool.

108A further concern with these tools is the limitation regarding age. Dr. Gray acknowledged that there is a “burnout effect” as an offender ages. Dr. Gray stated that this phenomenon begins in one’s late 40s or early 50s. The Static-99R uses age 45. Sex drive may diminish and “there is a general trend towards desistance from offending in particular for violent offences.” Indeed, Dr. Gray sees signs of this in Mr. Tibando’s behaviour in jail, noting that incidents of institutional violence decreased over time and that there have been no violent institutional charges while in custody since 2018.

109As Dr. Gray observes near the end of his report, “offenders over 60, as a group, are in the lowest age category for risk of sexual or violent reoffence.” Despite this, the Static-99R does not adjust for age over 60. This means Mr. Tibando would score the same at age 75, or even 100, were he to live that long. However, Dr. Gray explained that it is accepted, and there is a different tool that accounts for the fact that the longer a person remains in the community offence-free, one’s risk of committing a sex offence decreases. When cross-examined on this point it was pointed out to Dr. Gray that the issue was whether the person remained “sex-offence” free, and that Mr. Tibando has not committed a sexual offence “since at least 1993 or 1989, depending on your interpretation of 1993.”

110Overall, I place little weight on these risk assessment tools and Dr. Gray’s conclusions based on them. Further, to the extent they support the existence of a risk of reoffence by Mr. Tibando, taking into account the concerns discussed above, they do not show a “high likelihood” of harmful recidivism, the standard required for a dangerous offender designation.

Dr. Gray’s conclusions on the likelihood of risk

111Dr. Gray concludes his report by providing opinions on whether Mr. Tibando falls within the definition of a dangerous offender. He recognizes that this is ultimately a legal question, but offers views on the pattern of his offences, identifying what he said were three similarities between the index offences and at least some of his previous offences. Those are: (1) the influence of alcohol; (2) that he acted impulsively with disproportionate aggression after ruminating for a relatively long time; and (3) that his victims were all adult females.

112Dr. Gray places considerable weight on his view that Mr. Tibando’s offences are motivated by sex. However, I made no such finding in the index offences and Dr. Gray misstates the facts of the incident, apparently thinking the woman’s son was in a different room. Further, although Dr. Gray did not have an opportunity to interview Mr. Tibando about the index offences, he also did not review the video interview of Mr. Tibando following his arrest in 2018 in which he expressed surprise over the sexual assault allegation, as referred to in some detail in my Reasons for Judgment.

113Dr. Gray said the lack of an interview with Mr. Tibando meant that he could not explore the stressors leading to the index offences, but he was aware of the complaints about the cleanliness of the rooming house and of the break-up of a relationship with a woman a few months earlier.

114Further, Justice LaForme found no sexual motivation for the 1993 offences, but Dr. Gray relies on a hearsay summary note from a group therapy session which suggests Mr. Tibando may have acknowledged that there was some sexual motivation behind the 1993 offences.

115Dr. Gray knows very little about Mr. Tibando’s 1980 and 1982 offences including whether they involved alcohol, ruminating or, in 1982, a female.

116Dr. Gray also refers to Mr. Tibando’s atypical behaviour of stopping his aggression and of expressing regret as part of a pattern seen in the 1989 offences and the index offences in 2018. Dr. Gray states that, “from a psychiatric perspective, one can perhaps take from this pattern of behaviour that he repeatedly becomes overwhelmed with a powerful urge to act out aggressively against his victims in response to angry ruminations, which eventually passes once he has discharged his anger.” He says it “is likely that these personality traits, which underpin the uncontrollable urges, will persist with time.” On the other hand, Dr. Gray, like Dr. Ben Aron 34 years ago, agreed that Mr. Tibando has expressed “a genuine remorse and contrition for his aggressive behaviour.”

117Dr. Gray identifies factors in Mr. Tibando’s history that “may point to a positive prognosis in terms of management of his risk in the community.” Dr. Gray notes that Mr. Tibando seemed to do well when first released to the Keele CCC in 1986, quickly finding employment and abiding by his conditions of release for over two years. Similarly, with the exception of his alcohol and curfew violations in 2011, in both 2010 and 2013 Mr. Tibando was otherwise compliant with his conditions and was able to find work and places to live. He met regularly with a police officer and was open with him about details of his life. He saw Dr. Arrowood several times in 2013 and 2014 and sought him out again in 2018. He has a stable relationship with his brother Kelly.

118Nevertheless, Dr. Gray is critical of Mr. Tibando’s association with people with criminal records and of what he describes as “casual sex with female neighbours” during the 2010-2018 period, all of which was disclosed to the police officers Mr. Tibando reported to over those years of his release. Dr. Gray is critical of Mr. Tibando not seeing Dr. Arrowood on a continuing basis after 2014, and that he refused to attend further sexual offender treatment, among other things. Dr. Gray expresses concern that Mr. Tibando’s “resistance to treatment interventions” and “his pattern of minimizing his responsibility for his offences” are additional risk factors.

Conclusions on likelihood of harmful recidivism and intractability

119A dangerous offender hearing is part of the sentencing process. This means that the rules of evidence relating to sentencing govern the admissibility of documents and other records: R. v. Wilband, [1967] S.C.R. 14, at 20-21; R. v. Johnson 2003 SCC 46, [2003] S.C.R. 357, at para. 23. Hearsay may be admitted at a sentencing hearing, provided it is “credible and trustworthy”, but the Crown has the burden of proving any aggravating factors beyond a reasonable doubt. See: R. v. Gardiner, [1982] 2 S.C.R. 368, at 414-415; R. v. Albright, [1987] 2 S.C.R. 383, at p. 391-392.

120I have already commented on the problematic lack of details surrounding the offences in 1980 and 1982. But one must also be cautious about putting weight on institutional records of conduct, or misconduct, which were not the subject of criminal prosecution. Many facts, or alleged statements by Mr. Tibando, are drawn from these records and relied on by Dr. Gray, and the Crown, to prove that Mr. Tibando is a dangerous offender. These “aggravating facts” must be treated with caution when they are based on hearsay. Dr. Gray agreed in cross-examination that many of the records he reviewed contain second, third or even fourth-hand information.

121Also of concern is the reliance by Dr. Gray on the opinions of experts who did not testify and whose work and views cannot be challenged. While some of these experts may no longer be available, no evidence or explanation was provided for not calling anyone else to testify.

122The “expert opinion records” also varied in scope, expertise and reliability. Some were from well-qualified and well-known forensic psychiatrists. One of them, Dr. Ben Aron, had testified about Mr. Tibando. Dr. Gray, and the Court, had access to that transcript. The expertise of many others was not known at all, and the basis for their reports, or notations, could not be tested. I have referred earlier to Dr. Gray’s inappropriate reliance on Dr. Dickey’s report in the PCL-R assessment. In my view, the opinions contained in earlier reports by others must be given limited weight. They are informative and helpful in understanding Mr. Tibando’s background and concerns over many years about him, which informed Dr. Gray’s opinion, but it is the strength of Dr. Gray’s opinion today, and Mr. Tibando’s circumstances today, which matter most in this proceeding.

123Another concern is the very dated nature of the evidence relied on by Dr. Gray. Mr. Tibando has not been in a federal institution since 2010. Many of the records relied upon date back to the 1980s and 1990s. Dr. Ben Aron’s views and testimony date from 1990 and 1991. As Dr. Gray agreed in cross-examination, medical diagnoses have evolved over time. He noted, as well, that “Mr. Tibando was at a much younger age then obviously, so the constellation of symptoms or problems he had then might not necessarily be the same as now.” Yet much of the information and opinions Dr. Gray relied upon in his use of risk assessments and in formulating his opinions is from long ago.

124The effect of the passage of time on Mr. Tibando is also significant. Mr. Tibando was in his teens, twenties and early thirties when he committed the prior violent offences. The index offences happened when he was 54 years old. He is now about to turn 60. Aging and “burnout” are, as Dr. Gray agreed, relevant factors yet they were given limited weight in the risk assessment instruments referred to by Dr. Gray.

125It should also be noted that while some of the risk assessments put Mr. Tibando in a category likely to reoffend by committing a violent crime within five years of his release, in fact his reoffence in 2018 occurred eight years after his initial release in 2010, and five and a half years after his release in 2013. Further, the reoffence in 2018 was quite different in degree from the offences committed long ago, and occurred in the absence of any meaningful supports for Mr. Tibando.

126The index offences, while serious, did not involve sex and did not result in serious injury. Indeed, the violent interaction was very brief and Mr. Tibando stopped it immediately. Although I have found that the offences followed a pattern of aggressive behaviour, the circumstances of this offence lacked the intense prolonged violence, or sexual violence, that characterized Mr. Tibando’s prior offences in 1993, 1989 and 1980. There is some merit, therefore, in the defence position that the index offences should be characterized as a “relapse of relatively less grave proportions” as put in R. v. Newman and cited by the Ontario Court of Appeal in R. v. Hogg, cited earlier in these Reasons.

127Dr. Gray recognized that since his release from the penitentiary in 2010, aside from the breaches of the recognizance order in 2011, Mr. Tibando was compliant with his conditions, and functioned in the community for several years. He did this with few, if any supports, and despite challenges and significant stressors following his release.

128One example of a challenge he faced because of the lack of a release plan or supports is that when Mr. Tibando sought to get a family doctor for his “social isolation and depression” following his release in 2011, the community clinic turned him away because of his criminal past. Shortly after, flyers appeared in Mr. Tibando’s neighbourhood describing his criminal history. Had Mr. Tibando been on a maintenance program, Dr. Gray said that a parole officer could have assisted him in finding a doctor. Dr. Gray acknowledged that this would have been a “big stressor if I were him.”

129Prior to his release in 2010, Dr. Nadeau, Dr. Hucker and Dr. Loza urged supports for Mr. Tibando. Dr. Nadeau in particular recommended a maintenance program for Mr. Tibando which, as Dr. Gray said, likely would have involved transitioning Mr. Tibando from a correctional institution to a halfway house, where he would have program support, before being released into the community generally. This did not happen; instead, because Mr. Tibando served his entire 20-year sentence, he was simply released and put on a s. 810.2 order that required him to report to the police and be subject to restrictions such as not drinking.

130Dr. Gray agreed that had he been placed on parole, or been on a long-term supervision order, Mr. Tibando would have had access to supports, such as housing and a parole officer with experience helping offenders navigate life outside an institution, including assisting in finding employment, medical help and other supports. As Dr. Gray stated, being on parole or on a long-term supervision order is “a much more comprehensive discharge plan” than exists under a s. 810.2 order, and better manages risk in the community.

131Dr. Gray nevertheless concluded in his report that the negative factors outweigh those favouring successful management of Mr. Tibando’s risk in the community. However, his testimony was more nuanced. For example, Dr. Gray refers to a “pattern” of refusing to see therapists or assessors when he is frustrated or angry, but at the same time he observed in his direct evidence that “generally, he’s willing to seek out treatment” and attend group programs.

132Dr. Gray referred to Mr. Tibando’s refusal to enter further sexual treatment programs; but Mr. Tibando has completed such programs in the past, and in cross-examination Dr. Gray agreed that Mr. Tibando showed persistence in completing such programs when in custody prior to 2010. He has not committed a sexual offence in 35 years. Indeed, as Dr. Gray pointed out, he has never been diagnosed with a sexual disorder or other mental illness beyond the common diagnosis of many male offenders of having an antisocial personality disorder. And Mr. Tibando does not have any diagnosed substance use disorder.

133Further, Mr. Tibando met with Dr. Arrowood of his own accord in 2013 and 2014 and sought him out again in 2018 when a relationship ended. There may have been a gap in seeing Dr. Arrowood after 2014, but there is no evidence that Mr. Tibando had any difficulties in those years. Mr. Tibando stayed in regular contact with a police officer although not required to do so and was frank and open with him about his relationships and other behaviour.

134Because Mr. Tibando refused to be interviewed, Dr. Gray states that he is unable to say if Mr. Tibando would agree to any of his suggested interventions to manage his risk in the community. However, Dr. Gray acknowledged that conditions could simply be imposed. He also agreed that Mr. Tibando has agreed to conditions in the past, and that he did not offend violently or sexually when subject to conditions under s. 810.2 of the Criminal Code.

135Dr. Gray ultimately agreed in cross-examination that if Mr. Tibando could be placed in a community correctional centre, have regular meetings with a male therapist, and have access to maintenance programs and sex offender programs, it would be possible to manage his risk in the community. He also agreed that if Mr. Tibando is prohibited from consuming alcohol his risk in the community is “significantly reduced.”

136Dr. Gray also referred in his testimony to other positive factors, such as his positive relationship with his brother Kelly and Kelly’s wife, and his “generally…stable and consistent” relationship with his ex-partner Elizabeth who has said that Mr. Tibando has never been violent towards her.

137I cannot conclude, therefore, beyond a reasonable doubt that there is such a “high likelihood of harmful recidivism” by Mr. Tibando when there is evidence that Mr. Tibando’s risk can be significantly reduced and managed in the community if he is under long-term supervision.

138The evidence also does not support a conclusion, beyond a reasonable doubt, that Mr. Tibando is untreatable or that his conduct is intractable. He does not have any diagnosed substance use or sexual disorder. Dr. Gray referred to the benefits of one-on-one counselling and that Mr. Tibando sought it out. Dr. Gray conceded that Mr. Tibando has demonstrated success in deploying “relapse prevention strategies.” One of those strategies is “assertive communication” which Mr. Tibando utilized in raising complaints about his neighbours and in his discussions with Dr. Arrowood in which Mr. Tibando was open with him about his conduct and his stresses. Mr. Tibando’s experience in the community between 2010 and 2018 supports the conclusion that he is capable of moderating his behaviour.

139Accordingly, the evidence supporting a conclusion that Mr. Tibando meets the test for a dangerous offender does not have “such a high degree of clarity, persuasiveness, and strength that the court can be sure that the offender poses a probable risk of harmful recidivism”: Connell at para 28. Mr. Tibando has been treated for his conduct, has responded to that treatment, and has insight into his challenges. He lived in the community for a lengthy period without incident despite the lack of supports, which had been recommended. Although he reoffended in 2018, his prior violent offences and all of his sexual offences took place a very long time ago when he was a young man. He is no longer young. Considering the evidence both retrospectively and prospectively, Mr. Tibando does not, in my view, pose such a “tremendous future risk” that he should be designated as a dangerous offender.

Long-term offender designation

140My conclusion that Mr. Tibando is not a dangerous offender does not mean, however, that his release does not create a risk, even a substantial risk, that he will reoffend, but in my view there is a reasonable possibility that the risk can be controlled in the community through the use of a long-term supervision order.

141Pursuant to s. 753(5)(a) of the Criminal Code, having denied a dangerous offender application, it is open to me to find Mr. Tibando to be a long-term offender. Section 753.1(1) provides that I may find an offender to be a long-term offender if satisfied that:

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

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

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

142In my view this is the appropriate outcome.

Appropriate length of sentence

143I received limited submissions on the length of sentence that would otherwise be appropriate for the offences committed by Mr. Tibando in 2018. Mr. Tibando’s counsel did not argue that he should receive a sentence of less than two years, stating only that the five and a half years of pre-sentence custody Mr. Tibando has served is equivalent to at least an eight year sentence and that Mr. Tibando has done his time for the index offences. He submitted that, should I impose a long-term supervision order, only a few more months of incarceration is appropriate to allow CSC to develop a correctional plan.

144Determining an appropriate sentence is a “highly individualized exercise” and requires consideration of many factors, including the principles set out in s. 718 to 718.2 of the Criminal Code. Break and enter and aggravated assault are very serious offences, punishable by sentences up to life imprisonment and 14 years, respectively. But sentences vary widely for these offences, depending on the facts: see, e.g., R. v. Tourville, 2011 ONSC 1677, in which Code J. commented on the wide range of sentences for aggravated assault.

145The events in this case were serious and terrifying for the victims who were vulnerable in a place – their home – where they ought to have felt safe. On the other hand, no serious injuries were inflicted. Mr. Tibando apologized to the victims immediately and attempted to help the boy with the cuts caused by the knife. When arrested, Mr. Tibando took issue with the allegation of sexual assault which together with the forcible confinement charge were the main issues in contention at the trial. He did not vigorously dispute the charges on which he was found guilty.

146In my view, having considered the aggravating and mitigating factors and taking into account the seriousness of the offences, Mr. Tibando’s prior record and the sentencing principles in the Criminal Code, including the primacy of the objectives of denunciation and general and specific deterrence, I would sentence Mr. Tibando to a total of nine years in prison allocated as follows: five years for the break and enter, and four years consecutive for the aggravated assault.

147In accordance with the rule against multiple convictions set out in the seminal decision of Kienapple v. The Queen, I enter a stay on the charge of assault with a weapon. The same delict – wounding with a knife – underlies both the assault with a weapon charge and the aggravated assault charge. As in R. v. Basilio, a conviction should be entered on the more serious, aggravated assault charge only.

148I agree with counsel for Mr. Tibando that he has, effectively, served his sentence. Mr. Tibando is entitled to credit for the five and a half years he has been in custody. Measured in days, I have calculated that Mr. Tibando has been in custody for 2,016 days since his custody began on September 2, 2018 (365 x 5 + 189 (September 2, 2023 to March 8, 2024) + 2 (for two leap years)). He should receive credit at a rate of 1.5:1 for that time in detention: R. v. Summers, 2014 SCC 26. This results in an equivalent of 3,024 days. I also recognize that much of Mr. Tibando’s time in detention was during the COVID-19 pandemic, and he no doubt was also subject to other lockdowns and harsh conditions during his very lengthy pre-trial and pre-sentence detention which should be taken into account: R. v. Duncan, 2016 ONCA 754. I would grant Mr. Tibando another 5 months (about one month per year), or 150 days, credit for those conditions. This results in a total credit of 3,174 days.

149As a nine-year sentence is 3,287 days (again including two leap years), Mr. Tibando has 113 days remaining in his sentence which, in accordance with s. 753.2(1), must be completed before an LTSO begins.

Likelihood of risk and control of the risk: long-term supervision order

150As I have reviewed above, the evidence supports a finding that there is a substantial risk that Mr. Tibando will reoffend, albeit falling short of a “high likelihood.”

151Further, I have concluded that there is a reasonable possibility of eventual control of the risk in the community. As Dr. Gray noted, when released in a structured setting, Mr. Tibando has managed well. Indeed, he did well for several years following an unstructured release in 2013. However, it would clearly have been preferable in the past to have released Mr. Tibando under supervision and with supports to help him adjust to community living.

152Offenders subject to long-term supervision orders are closely-monitored, as Marlene Do Rego, a parole supervisor with CSC testified. Long-term offenders initially will live in a supervised facility, such as the Keele CCC. Unlike halfway houses which may be community-based and operated, Ms. Do Rego said that no one is denied admission to Keele CCC, which is operated by CSC.

153Offenders on long-term supervision orders have frequent contact with parole officers, which continues after they leave a supervised facility. Standard conditions in LTSOs include requirements to report to police, to keep the peace, carry identification at all times and not possess a weapon. Special conditions are imposed by the Parole Board based on an assessment of the individual subject to the LTSO. These may include attending programs, residing with family, reporting any new relationships, and abstaining from drugs and alcohol. One of the conditions that can be imposed during an LTSO is a requirement to submit to urinalysis to monitor abstinence from alcohol or drugs. Electronic monitoring conditions can also be imposed to deter an individual from attending certain locations.

154Terms of the orders are strictly enforced. Breaches are dealt with swiftly and are a criminal offence under. s. 753.3(1) of the Criminal Code. A long-term supervision order can be suspended because of a breach, to prevent a breach, or for the protection of society which might arise, for example, if the need for additional conditions is identified. If someone is taken into custody, they can be held for 90 days; if no charges are laid within that time, they will be released back into the community. The failure to abide by any condition in a long-term supervision order, including one requiring treatment, may result in suspension and apprehension pursuant to ss. 135.1(a) and 135.1(b) of the Corrections and Conditional Release Act, S.C. 1992, c. 20. The same provisions allow a long-term supervision order to be suspended where doing so is necessary to prevent the breach of any condition or to protect society. Section 753.3(1)(a) of the Criminal Code makes it an indictable offence to breach a long-term supervision order, with a maximum sentence of 10-years' imprisonment.

155In his report, Dr. Gray outlined a number of conditions for a supervision order that should be imposed on Mr. Tibando. These include beginning his period of release in a supervised facility, such as the Keele CCC. He recommended that Mr. Tibando should also be prohibited from using substances, including alcohol, for non-medical reasons and that he should be tested and monitored to ensure compliance. Dr. Gray also recommended that Mr. Tibando report all relationships with females to his supervising parole officer – something that should not be a problem as Mr. Tibando was doing this with a police officer prior to 2018 even when not required to do so. Dr. Gray also stated that Mr. Tibando would “likely still benefit” from programming in the areas of sexual offending, substance abuse and anger management.

156Ultimately, the terms of the long-term supervision order are set by the National Parole Board. But in my view a long-term supervision order for ten years is appropriate to control the risk of reoffence by Mr. Tibando.

157However, it is essential that a proper correctional plan be developed for Mr. Tibando before he is released. Ms. Do Rego said that this correctional plan can take 90 days or, in some cases, longer to prepare, and can be prepared while Mr. Tibando remains in a provincial institution, where he is currently held. As I have concluded that Mr. Tibando must still serve 113 days, this is sufficient time for CSC to develop the plan. I note that a similar situation existed in Connell, in which McArthur J. provided CSC 90 days to prepare a correctional plan for a long-term offender.

Conclusion

158Mr. Tibando shall be designated as a long-term offender and be subject to a 10-year supervision order following his custodial sentence.

159On the count of break and enter with intent to commit assault with a weapon, I sentence Mr. Tibando to five years in prison. On the aggravated assault charge, I sentence Mr. Tibando to four years in prison, consecutive to the sentence for break and enter. The assault with a weapon charge is stayed. The total sentence is nine years in prison or 3,287 days.

160As I have calculated above, Mr. Tibando has served the equivalent of 3,174 days in pre-trial and pre-sentence detention. He therefore has 113 days remaining in his sentence, which will be followed by the long-term supervision order.

161I also make the following ancillary orders:

• Pursuant to s. 109 of the Criminal Code Mr. Tibando is prohibited from possessing any firearm, weapon or device, as set out in that section, for life.
• Mr. Tibando shall provide such samples of his bodily substances as are reasonably necessary to comply with s. 487.051(1) of the Criminal Code for the purpose of forensic DNA analysis.
• Pursuant to s. 760 of the Criminal Code, all transcripts and exhibits filed at the sentencing hearing and at the trial of this matter, together with my Reasons for Judgment and these Reasons, shall be forwarded to the CSC for its information.

Paul B. Schabas J.