His Majesty the King v. Patrick Frank Warren

COURT FILE NO.: CR-17-4012

DATE: 2024-05-15

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

Patrick Frank Warren

Offender

COUNSEL:

Elizabeth Brown and Jonathan Lall, for the Attorney General of Ontario

Jacob Pollice and James Stuckey, for the Attorney General of Canada

Daniel K. Topp, for the Offender

Paul Champ, Amicus Curiae

HEARD: March 9, 10, 11, 12, and 13, 2020; March 1, 2, 3, 4, 5, 18, September 27, 28, 29, December 20, and 21, 2021; January 25, 26, 28, March 7, 9, April 14, May 31, June 1, 2, July 11, 27, 28, September 7, 9, October 11, 2022; January 5, 6, and April 25, 2023; February 27 and March 25, 2024

I delivered oral reasons in this matter on March 15, 2024. This is the written judgment of the Court.

RULING ON DANGEROUS OFFENDER APPLICATION AND RELATED CHARTER ISSUES

pOMERANCE R.S.j.:

TABLE OF CONTENTS

Page #

introduction and overvieW 4

THIS IS AN UNUSUAL DANGEROUS OFFENDER APPLICATION 7

WHO IS MR. WARREN? 9

Education Background 12

Employment History 12

Interpersonal Relationships 13

Prior Offences 14

THE PREDICATE OFFENCE 19

DIAGNOSES AND TREATMENT NEEDS 19

ASSESSMENT OF RISK 21

ANALYSIS ON DANGEROUS OFFENDER CRITERIA 22

The Statutory Regime 23

Mandatory vs. Discretionary Elements 24

Is Mr. Warren a Dangerous Offender? 25

Penalty 29

Conclusion on Statutory Framework 30

THE CHARTER 30

Positions of the Parties 30

Argument of Amicus 30

Argument of the Crown 32

ANALYSIS OF THE CHARTER ISSUES 33

Overview of Constitutional Analysis 33

The Nature of the Section 12 Violation 34

Reviewing the Conditions of Imprisonment 39

Can Mr. Warren’s Needs be Met in a CSC Facility? 45

Past Treatment of Mr. Warren 45

Where Might Mr. Warren Receive the Treatment That He Requires? 46

CSC vs. Hospital 47

Has the Correctional System Changed? 61

Should We Wait and See? 65

Should the Court Simply Make a Recommendation to Correctional Authorities? 67

Can Mr. Warren be Transferred to a Provincial Hospital? 68

REMEDY 70

CONCLUSION 75

APPENDIX “A” – Order made on March 15, 2024 76

[1] This is a ruling on a dangerous offender application. I have concluded that Patrick Warren is a dangerous offender, and that he should be sentenced to an indeterminate period of incarceration. Ordinarily, those conclusions would end the matter. However, I have also determined that, while the dangerous offender scheme in the Criminal Code, R.S.C. 1985, c. C-46, is constitutional, the application of that scheme to Mr. Warren raises important constitutional issues. The answer is not to direct his release. That would compromise the safety of the community. The answer, instead, is to fashion a constitutional remedy under s. 24(1) of the Canadian Charter of Rights and Freedoms that is tailored to the circumstances of the case and aimed at addressing Mr. Warren’s specialized needs.

[2] I will elaborate on these conclusions below.

INTRODUCTION AND OVERVIEW

[3] Mr. Warren has led a profoundly tragic life. He was subjected to unspeakable sexual, physical and emotional abuse from a very young age. His father was the prime actor, though other family members took part. Evidence of penetrative sexual abuse when Mr. Warren was eight years old was unequivocally present. He tried to kill himself when he was as young as five years old. Mr. Warren became a Crown ward and moved from place to place – first to foster homes, and then group homes. He began acting out by running away, verbalizing threats, harming himself, and attempting suicide. He also began setting fires.

[4] Fire has become a means of communication for Mr. Warren. He sets fires when he is looking for help. He sets fires when he has flashbacks to the abuse he suffered as a child. He sets fires when he is experiencing frustration, sadness, anger and other emotions that he has difficulty understanding and controlling. He sets fires for reasons that are unknown. It is reported that once, when he was very young, Mr. Warren told a companion, “fire is my friend”. Sadly, for much of his life, fire has been his only friend.

[5] Unfortunately, fire is a dangerous entity. Once brought into being, it has a life of its own and poses danger to human life. Mr. Warren often (though not always) sets fire to unoccupied buildings. He usually reports the fire to others so that it can be detected and contained. Nonetheless, this behaviour poses life threatening danger to firefighters, who must enter fire-filled buildings to extinguish the blaze.

[6] My judicial predecessor on this case, Justice Gregory Verbeem, found Mr. Warren guilty of the predicate offence of arson, contrary to s. 434 of the Criminal Code. Verbeem J. ruled that arson is a serious personal injury for purposes of s. 753 of the Criminal Code. The Crown sought an assessment under s. 752.1(1) of the Criminal Code. Following the preparation of a report by Dr. Treena Wilkie, the Crown sought and obtained the consent of the Attorney General of Ontario to bring a dangerous offender application.

[7] That hearing commenced before my former colleague Verbeem J. Unfortunately, he was unable to continue as the presiding judge. Thomas R.S.J. (as he then was) made an order under s. 669.2 of the Criminal Code directing that I replace Verbeem J. as the hearing/sentencing judge. There followed an extensive dangerous offender hearing, with several witnesses called, and thousands of documents filed.

[8] I am satisfied that the Crown has proved, beyond a reasonable doubt, that the test for designating Mr. Warren as a dangerous offender is met in this case, and that the circumstances call for imposition of an indeterminate penalty.

[9] This is an unusual case, both as it relates to the predicate offence and the offender. While arson is a serious personal injury offence, it does not involve the direct infliction of harm that is often at the core of dangerous offender cases. Mr. Warren is an individual with highly specialized and complex needs. He suffers from severe cognitive disabilities, and other limitations that make it difficult to treat him within the federal correctional system. Indeed, his time in the custody of Correctional Service Canada (“CSC”) has historically consisted of protracted periods in segregation, with little to no meaningful human contact.

[10] Therein lies the vexing dilemma at the heart of this case. Looking exclusively at the statutory regime, the Court is presented with a choice between stark alternatives, neither of which is desirable. I cannot release Mr. Warren without compromising the safety of the community. However, to impose an indeterminate penalty in the penitentiary is to court the risk that Mr. Warren will serve his sentence with virtually no meaningful human contact, no suitable treatment or programming, and seclusion from others for his own protection. Historically, the correctional system has been unable to offer programs tailored to Mr. Warren’s special needs. Historically, Mr. Warren has spent unacceptable periods of time in segregated custody.

[11] Amicus curiae has persuaded me that it is more likely than not that, if Mr. Warren is incarcerated in a penitentiary, he will not receive timely, meaningful, treatment and programming. This conclusion is based on past treatment of Mr. Warren and the continuing challenges posed by his specialized needs. I agree and find that confinement in the penitentiary would give rise to an anticipatory breach of Mr. Warren’s Charter rights. It is appropriate, in my view, to remedy the breach by directing that Mr. Warren be placed in a hospital, and by requiring that those responsible for Mr. Warren report back to the Court to confirm compliance with the constitutional imperatives.

[12] My conclusions may be summarized as follows:

1. Confinement in the penitentiary will, more likely than not, result in an infringement of Mr. Warren’s rights under s. 12 of the Charter:

a. The constitutional validity of the dangerous offender scheme hinges on the existence of review and the possibility of release;

b. The review process is only meaningful if the offender is provided with access to treatment and/or programming that is suited to their needs and abilities;

c. Historically, CSC has been unable to offer Mr. Warren the type of treatment and programming that is suited to his needs and abilities;

d. While there have been changes to the delivery of health services within CSC, there is no concrete evidence to indicate that Mr. Warren will receive the treatment that he requires within the correctional system;

e. I find that it is more likely than not that Mr. Warren’s s. 12 rights will be infringed if he is confined for an indeterminate period to a penitentiary.

2. The remedy for the anticipated constitutional violation is an order directing that Mr. Warren be transferred, within a specified period of time, to a provincial psychiatric hospital along with a judicial supervision order:

a. The evidence establishes that the type of treatment that Mr. Warren requires is available and most likely to be effective within the setting of a provincial hospital, rather than a jail;

b. The CCRA contemplates that an offender might be transferred to a provincial hospital with whom there is an agreement. There is currently no agreement with Ontario hospitals, though the evidence would indicate that “one-off” transfers are possible;

c. The evidence establishes that a judicial recommendation regarding the treatment of Mr. Warren is not binding. It follows that a judicial order is the only means by which to ensure constitutional compliance;

d. Given historical impediments to adequate treatment and programming, it is appropriate that the Court retain some degree of supervisory jurisdiction over Mr. Warren’s case.

[13] The following will begin by detailing some background facts about Mr. Warren and his offending behaviour. I will then address the statutory regime governing dangerous offenders, explaining why I have found Mr. Warren to be a dangerous offender and why I have imposed an indeterminate sentence. I will then turn to the constitutional analysis in this case. Among other things, I will contrast the CSC treatment model with the treatment model in provincial psychiatric hospitals. I will explain why the hospital setting is the appropriate one for Mr. Warren, and will set out the elements of the constitutional breach and the constitutional remedy.

THIS IS AN UNUSUAL DANGEROUS OFFENDER APPLICATION

[14] As noted above, this case has various distinctive features.

[15] First, it bears noting that the predicate offence is an arson-related crime, rather than assault, sexual assault, or homicide. I accept the conclusion of Verbeem J. that arson is a serious personal injury offence for purposes of Part XXIV of the Criminal Code. However, not all such offences are created equal. Arson poses a significant risk of harm. Yet, the violence inherent in fire setting is qualitatively different than the violence inherent in physical and/or sexual assaults. Assaultive behaviour involves the direct infliction of violence on another human being. In the case of arson, the infliction of harm is of a more indirect nature, particularly when the offender targets buildings believed or known to be unoccupied. This is also not a case in which the offender appears to derive direct pleasure or gratification from harming others.

[16] To be sure, Mr. Warren’s behaviour is difficult to understand, and his cognitive limitations make it difficult for him to explain. Dr. Wilkie attributed his actions to anger and a desire for vengeance. However, another interpretation, supported by Dr. Bradford’s testimony, is that Mr. Warren also sets fires as a cry for help, or in response to flashbacks to trauma experienced as a child. Mr. Warren must be taken to know that by setting fires, even in apparently unoccupied locations, he is endangering others. That is presumably why he will sometimes report the fires after setting them. The point is only that his conduct, while dangerous, does not involve the same type of violence as is typically seen in dangerous offender hearings.

[17] The fact that the predicate offence is arson also impacts on some of the diagnostic and actuarial tools used to assess risk of recidivism and danger to the public. According to Dr. Wilkie, who assessed Mr. Warren for the dangerous offender application, the scales used to assess risk levels are based on other types of violent crime, such as sexual offences. There are no studies that validate the results as they relate to arson-based offences. This is not to say that the results of such tools are unreliable, only that the predictive reliability of these tests is generally unknown as they relate to arson.

[18] The other factor in this case concerns the challenges faced by Mr. Warren himself. As noted above, Mr. Warren had a profoundly tragic childhood, marked by physical, sexual, and emotional abuse. His childhood was one of unspeakable horror and it left an indelible mark on his psyche, his intellect, his personality, and his ability to cope with everyday life.

[19] Mr. Warren suffers from severe cognitive deficits. He is illiterate. He falls below the first percentile on intellectual functioning. These limitations bear on the moral blameworthiness of Mr. Warren’s actions. He is criminally responsible for his actions, and continues to pose a danger to the community, but his disabilities would suggest that he is operating at a reduced level of moral culpability. This conclusion is reinforced if one accepts that he sets fires to deal with trauma, confusion, and other confounding emotions, rather than an intentional wish to hurt people.

[20] In R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 91, the Supreme Court of Canada observed that moral culpability is reduced in circumstances such as these:

The proportionality principle requires that the punishment imposed be “just and appropriate . . . and nothing more”. First, as sexual assault and sexual interference are broadly-defined offences that embrace a wide spectrum of conduct, the offender’s conduct will be less morally blameworthy in some cases than in others. Second, the personal circumstances of offenders can have a mitigating effect. For instance, offenders who suffer from mental disabilities that impose serious cognitive limitations will likely have reduced moral culpability. [Citations omitted.]

[21] Mr. Warren’s cognitive limitations also create a vexing therapeutic challenge. It was common ground at the hearing – and the subject of unanimous opinion – that Mr. Warren’s complex profile calls for treatment that is “intensive and prolonged.” Mr. Warren requires special adaptations to allow for his cognitive difficulties. He requires intensive one-on-one treatment. Yet, these measures have not historically been available within a correctional setting, which often offers group interaction for those operating at a more sophisticated level of functioning.

[22] Finally, one must add to the mix Mr. Warren’s particular vulnerability as an inmate. He is susceptible to abuse by other inmates and has in the past been set upon and assaulted while in general population. He is at risk from others and therefore spends a considerable amount of time in segregation, away from other inmates. This is for his protection, and indeed often requested by him. Nonetheless, prolonged detention in segregation like conditions, without meaningful human contact, is itself a matter of grave concern that carries constitutional implications.

WHO IS MR. WARREN?

[23] Patrick Warren was born on June 4, 1979. Mr. Warren has been convicted of a total of 32 criminal offences prior to the predicate offence. He was convicted of five arson-related offences before the predicate offence. He received penitentiary sentences for his last two arson convictions. In both instances, his parole was ultimately revoked after his statutory release date and he served his sentence to the warrant expiry date. Mr. Warren has also been convicted of assault on four occasions (two involving peace officers) and uttering threats on ten occasions. Mr. Warren’s criminal record also includes several “breach” convictions of various probation orders, recognizances, and undertakings to which he has been subject.

[24] Records reflect that Mr. Warren was first brought into the care of the Roman Catholic Children’s Aid Society (“CAS”) on March 5, 1981, due to physical abuse committed by his father. He was returned to his parents’ care on May 7, 1981, with conditions that his father continue a specified treatment and both parents allow regular CAS access to their home. CAS supervision was terminated on May 27, 1982.

[25] In July 1987, Mr. Warren’s mother contacted CAS, in distress, over Mr. Warren’s behaviour (then eight years old). He had reportedly run away from home on two occasions and threatened to jump off a roof. Mr. Warren was brought into CAS care. He was placed in a temporary foster home on July 15, 1987, and transferred to the care of a long-standing foster parent of good repute on July 29, 1987. Shortly thereafter, the foster parent contacted CAS for advice with respect to dealing with Mr. Warren’s difficult behaviour.

[26] In September 1987, Mr. Warren’s foster parents reported to CAS that they were unable to control his behaviour. They disclosed that Mr. Warren had started engaging in self-harm and suicide attempts at age four when he cut his wrists. He tied a noose around his neck at age six and in a different incident attempted to jump off a roof. In September 1988, Mr. Warren disclosed to his foster mother, in graphic detail, incidents of sexual abuse committed on him by his father. A subsequent medical examination disclosed evidence of historical penetrative trauma that was “absolutely diagnostic” of sexual abuse. The available CAS records indicate that Mr. Warren was subjected to severe and prolonged physical, emotional and sexual abuse as a young child, predominantly perpetrated by his father. His mother, parental grandmother and other outsiders were also said to be involved in the abuse which included being exposed to animals killed in his presence. Criminal charges were eventually laid against both of Mr. Warren’s parents.

[27] On June 26, 1989, Mr. Warren was made a Crown ward without access to either parent.

[28] Mr. Warren’s mother passed away when Mr. Warren was still a child. She was said to suffer from a condition known as neurofibromatosis, a condition with which Mr. Warren was also diagnosed during childhood. Mr. Warren also possesses limited intellectual ability, which appears to date back to his childhood. Mr. Warren’s intellectual disabilities are well documented in the records adduced by the Crown including the early records of the CAS. As an example, Mr. Warren was the subject of a neuropsychological assessment over the course of various dates in early 2002, by Dr. David Villeneuve at the Regional Treatment Centre (Ontario), as part of his intake assessment during the course of his first period of federal penitentiary incarceration. In his report dated April 29, 2002, Dr. Villeneuve concluded that Mr. Warren’s verbal IQ estimate fell in the extremely low range of intellectual functioning; his performance IQ estimate fell in the borderline range; and his full-scale IQ estimate fell in the extremely low range (corresponding with the second, fifth and second percentiles, respectively). Further, his verbal comprehension fell in the third percentile; his perceptual organization fell in the fifth percentile; his working memory fell in the first percentile and his processing speed fell in the eighth percentile. Ultimately, Dr. Villeneuve concluded that,

Mr. Warren suffers from a severe, broad based, intellectual disability. Given his learning history, it seems likely that this disability is developmental in nature. It is not possible at this point to determine whether his illness [neurofibromatosis] has contributed in some way to his intellectual status.

[29] Dr. Wilkie identified neurofibromatosis as a genetic illness which presents with a variety of characteristic abnormalities of the skin, bones and nervous system related to the development of benign tumours arising from the peripheral nerve sheath. The illness can lead to characteristic physical features including skin patching, neurofibromas, bony dysplasia and optic pathway gliomas, among others. Tumours may also develop at any point during the individual’s life span. Average life expectancy is reduced in individuals with this illness. There are no evidence-based therapies for treatment other than monitoring for the development of new tumours and interventions to treat symptoms that arise from them. Learning disabilities, tensional disorders and mild intellectual disability are identified as the most common neurological complications in individuals with the condition, although severe intellectual deficits are rare. Behavioural problems may be associated with the illness including sleep difficulties, poor socialization, increased rates of anxiety, mood disorders and suicidality.

[30] Dr. Wilkie was unable to comment specifically on the status or progression, if any, of the illness in respect of Mr. Warren’s physical health. She observed that Mr. Warren evidenced clear learning, intellectual and behavioural problems as a child but it was unclear the degree to which those issues were associated with neurofibromatosis. Nonetheless, his deficits in that regard have persisted into adulthood.

Education Background

[31] Mr. Warren has periodically reported to assessors and others that he has no formal education, that he is illiterate and at times he has suggested that at his father’s insistence, he never attended school, but instead spent his youth wandering the streets of Windsor engaging in acts of criminality for which his father would reward him.

[32] In his recent clinical interviews with Dr. Wilkie, Mr. Warren advised her that he attended school while residing with a foster family and that he engaged in one year of special education classes at Maryvale, a children’s mental health treatment centre in Windsor. In both cases, he says he gave up because “it was too hard.” He reported that he hated school and could not stand being told what to do.

[33] While in federal custody, Mr. Warren attended ABE-School Level 1. Although his attendance was poor, a progress performance report noted that he was available to work well when he understood instructions. He had a tendency to become easily upset, was argumentative and unable to handle frustration effectively. In his most recent period of federal incarceration, he attended a total of five sessions which were deemed to have been of no benefit to him.

Employment History

[34] Mr. Warren has never engaged in consistent long-term employment. Instead, during the periods of time at which he has not been incarcerated, he has received benefits through the Ontario Disability Support Program, primarily owing to his intellectual deficits and mental health issues. Mr. Warren has repeatedly advised assessors and others over the years that he is not interested in pursuing employment.

Interpersonal Relationships

[35] Mr. Warren does not have a strong interpersonal relationship with anyone. His parents are both deceased. Ms. Wiley, his stepmother, does not appear to be present in his life. He has a younger brother from whom he has been estranged since early childhood.

[36] Although he has intermittently reported to assessors and others that he married when he was 16 years old and that he has either one or two children, that information is not supported by any contemporaneous documentation nor are there any other sources extrinsic to Mr. Warren, nor is it consistent with Mr. Warren’s documented historical life circumstances.

[37] Mr. Warren has no interpersonal-based support network available to him in the community. In addition to a lack of family support, his peer group, outside group home settings, has historically been populated by individuals involved in the drug and criminal subcultures.

[38] Dr. Wilkie has diagnosed Mr. Warren as suffering from, among other things, a substance use disorder (alcohol, cannabis, stimulants), severe and sustained remission in a controlled environment. Management of substance abuse disorders can involve both psychological and pharmacological treatment with the former potentially taking the form of a group, peer support modality (i.e., NA or AA) or cognitive behavioural or relapse prevention training.

[39] Dr. Wilkie observed that Mr. Warren has reported using substances in the past as a way to cope with stressors, boredom and/or mood dysregulation, and that he has reported being more impulsive when intoxicated. She opined that the documentary record evidences Mr. Warren’s problematic use of alcohol, cannabis and stimulants over the years has impacted his relationships and his ability to fulfill his obligations, placed him in physically hazardous situations and has been associated with self-harm and criminal behaviour, including fire setting. Further, his lifestyle in the community has often revolved around using substances and he has associated primarily with individuals who use substances. Finally, Mr. Warren’s substance use appears opportunistic at times and dependent on what is available in his environment and from his associates.

Prior Offences

[40] Mr. Warren’s criminal record began in 1994, when he was 15 years old. Mr. Warren was found guilty of various offences as a young offender between April 15, 1994, and January 17, 1996.

[41] Mr. Warren’s adult criminal convictions are as follows:

1. July 23, 1998 – Mr. Warren was convicted of arson with disregard for human life, breaking and entering with intent, and failure to comply with a recognizance. He was sentenced to seven months in custody, followed by one year of probation which included a term compelling him to attend a program for alcohol abuse.

The circumstances of the arson conviction are set out in a charge summary dated March 23, 1998. It indicates that at approximately 11:55 p.m. on March 23, 1998, Mr. Warren set a fire in his own apartment. He stacked a box spring and two mattresses on his living room floor and lit a candle at one corner while setting the fabric of the mattresses on fire. He watched the mattresses catch fire and continued to watch the fire spread. He eventually left the apartment building but did not activate an available fire alarm. He met another resident of the building in the street and told her that he had left the apartment building to go for a walk and someone set his apartment on fire. The other resident asked Mr. Warren to help her get people out of the building. Instead, he walked away. The other tenant ran into the building, activated the fire alarm and helped evacuate other tenants. The building superintendent entered Mr. Warren’s apartment and saw three stacked mattresses in the living room engulfed in flames. Firefighters extinguished the fires. A total of 25 people were evacuated from the building. The superintendent suffered a burn to his hand. The fire caused $150,000 in property damage and several apartments were rendered uninhabitable. The reasons for sentence dated July 23, 1998, are consistent with the foregoing factual narrative.

Mr. Warren subsequently provided an inconsistent version of the above events to Dr. Dufresne, a psychologist, in September 1998. Specifically, he indicated that the fire had started because he had fallen asleep with a lit cigarette. He claimed that when he woke up, he saw flames and tried to extinguish the fire and ran out of the building and called the fire department himself. However, Mr. Warren also identified anger at his landlord as a contributing factor to the fire and acknowledged that he had consumed alcohol that evening.

During the course of Dr. Wilkie’s assessment, Mr. Warren indicated that he set the fire to get back at his landlord saying, “I don’t think before I do things.” He denied using alcohol or drugs prior to that incident. Mr. Warren denied telling anyone about the fire or pulling the fire alarm. He stated he left the building after setting the fire because he did not care. He also denied telling Dr. Dufresne that he had fallen asleep with a lit cigarette and instead confirmed that he had set the fire on purpose. The decision to set the fire was impulsive. Dr. Wilkie further noted, “he did not consider the consequences of his actions, saying that he didn’t think about the possibility of jail, remarking ‘even today I don’t think before I do things.’”

2. April 12, 1999 – Mr. Warren pleaded guilty and was convicted on two counts of uttering threats. He received a suspended sentence and was placed on probation for two years on each charge, together with a weapons prohibition order for ten years.

3. April 28, 1999 – Mr. Warren was convicted of failing to comply with the terms of a probation order and sentenced to seven days time served and one day probation. Mr. Warren’s probation order, dated April 12, 1999, required him to comply with programming directed by the CAS and for CAS supervision. The CAS supervisor reported that Mr. Warren refused to attend programming and would threaten him.

4. May 12, 1999 – Mr. Warren was sentenced to seven days in custody on a conviction for failing to comply with a probation order. On May 6, 1999, while subject to a 24-hour supervision order, Mr. Warren left the residence of a CAS worker.

5. June 16, 1999 – Mr. Warren was convicted of arson and sentenced to 23 months in custody after serving 29 days of pre-sentence custody, followed by a three-year probation term.

File documentation reveals that on May 6, 1999, Mr. Warren was taken to the home of his in-home support worker by another support worker to stay the night because the toilet in his own apartment was not working. Mr. Warren absconded at some point during the night. The support worker attended Mr. Warren’s residence and found it to be on fire. On May 11, 1999, Mr. Warren advised another support worker that he was angry with the in-home support worker because he perceived that the worker had left him alone at the residence. As a result, Mr. Warren returned to his own residence, put newspaper on his sofa and lit it on fire by using the stove. He went across the street to inform a stranger that the apartment was on fire. He then went to the police station to turn himself in for being out past curfew.

Mr. Warren’s stepmother advised police that he told her that he had left the worker’s home and returned to his own. While there, he lit paper on the stove and threw it on the couch and told the neighbour there was a fire. According to the police charge summary sheet, Mr. Warren poured nail polish on the couch in his living room, used his stove to set a piece of paper on fire and placed it on other papers on the couch. He watched as the papers caught fire, then left the building without making any attempts to put the fire out or contact the downstairs occupant. He watched the flames from the street and ultimately reported the fire to an occupant of the building. Windsor Fire and Rescue responded to the fire. The fire caused an estimated $50,000 in property damage, and left some residents homeless. Mr. Warren subsequently gave an inculpatory statement to police on May 18, 1999.

6. February 2, 2000 – Mr. Warren was convicted of assaulting a police officer and uttering threats, and sentenced to 30 days on each charge, consecutively.

7. January 26, 2001 – Mr. Warren was convicted of failing to comply with the terms of his probation order requiring him to abstain from alcohol and drugs.

8. February 26, 2001 – Mr. Warren was convicted of failing to comply with terms of a probation order after self-reporting to police that he had breached his curfew condition.

9. April 3, 2001 – Mr. Warren was sentenced to five days in custody on a conviction of failing to comply with a probation order after breaching his curfew condition.

10. January 15, 2002 – Mr. Warren was sentenced to his first federal sentence, totalling three years in custody (together with a mandatory prohibition order pursuant to s. 109 of the Criminal Code) on a conviction of arson causing damage to property. Pursuant to the transcript of the proceeding of his guilty plea dated November 30, 2001, on October 20, 2001, police concurrently observed Mr. Warren run into an alleyway and set a nearby vacant residence under renovation on fire. The fire department attended the scene and extinguished the flames. A neighbour reported that at approximately 1:05 a.m., Mr. Warren coaxed a neighbour out of his residence to view the flames. Although the house was vacant, hydro and gas were hooked up and the houses on either side of it were occupied. When Mr. Warren was arrested, he admitted to committing the arson as a way to get attention. During Dr. Wilkie’s assessment, Mr. Warren expressed no independent recollection of the offence.

11. January 6, 2004 – While serving his first federal sentence, Mr. Warren was sentenced to two months consecutive custody for one count of uttering threats and 45 days consecutive for a second count of uttering threats against a nurse at the Regional Treatment Centre (“RTC”).

12. January 4, 2005 – While still serving his first federal sentence, Mr. Warren was sentenced to an additional 75 days consecutive custody for uttering threats as a result of multiple death threats against a correctional officer on December 21, 2004.

13. June 8, 2006 – Mr. Warren was sentenced to 18 months in custody, after serving 159 days of pre-sentence custody for arson causing damage to property, followed by probation for one year. The subject offence occurred on December 4, 2005, approximately five months after Mr. Warren was released on his warrant expiry date from federal penitentiary for a previous arson. Mr. Warren pleaded guilty to the offence. The subject fire was set on the rear porch of an abandoned building and caused $2,000 in property damage. Mr. Warren’s landlord owned the residence and advised police that he had been having problems with Mr. Warren. Mr. Warren eventually turned himself in on January 1, 2006, and indicated that he could not stop setting fires. He stated he was turning himself in because he wanted to stop before it got worse. Mr. Warren served his sentence at the Central North Correctional Centre and was released from this sentence in June 2007, approximately three months prior to committing another arson offence which resulted in a second federal penitentiary sentence.

14. October 16, 2007 – Mr. Warren pleaded guilty and was sentenced to four years in custody and a mandatory prohibition order pursuant to s. 109 of the Criminal Code for the offence of arson causing damage to property. On September 28, 2007, Mr. Warren attended police headquarters and reported that he was using drugs contrary to the terms of his probation. However, there was no evidence to support his claim and he was not arrested. Approximately one hour later, a fire was reported at a vacant home.

Contemporaneously, Mr. Warren advised police that he had set the fire and had left his health card at the scene. He climbed in a window and set the fire with a lighter. His health card was left at the scene. Mr. Warren reported to police that he set the fire because he wanted to return to the penitentiary and that he was a danger to himself and the public. He reported that he knew what he did was dangerous and wrong. He was determined to go back to the penitentiary so that he could get substance abuse treatment and stay safe, as he was afraid to be out on the street. He did not appear to be under the influence of any substances. During a psychological assessment in March 2008, Mr. Warren reported that he committed this offence to get help with crack cocaine, which he was using at the time. He set fire to an empty house so that no one would get hurt. During Dr. Wilkie’s assessment, Mr. Warren maintained he had no recollection of this offence or of wanting to go to jail.

15. October 27, 2009 – While serving his second federal sentence, Mr. Warren was convicted of three counts of uttering threats and one count of assaulting a police officer. He was sentenced to five months concurrent on two uttering threat counts and the assault count and five months on the final uttering threats count consecutive to the sentence he was serving. The offences occurred between August 10 and September 10, 2009.

16. May 20, 2016 – Mr. Warren was convicted of theft under $5,000 and failure to comply with conditions. He sentenced to 27 days and placed on probation for a year.

17. August 19, 2016 – Mr. Warren was convicted for theft under $5,000 for stealing a bottle of whiskey from the LCBO. He was sentenced to one day in custody and 12 months probation. Mr. Warren advised Dr. Wilkie that he stole the liquor to sell for drugs.

18. August 23, 2016 – Mr. Warren was convicted of two counts of theft under $5,000 and sentenced to ten days in custody in addition to 35 days of pre-sentence custody and 18 months probation.

19. February 28, 2017 – Mr. Warren was convicted of failing to comply with the terms of his probation and sentenced to one day in custody and a further 12-month probationary period.

20. March 31, 2017 – Mr. Warren was convicted of one count of uttering a death threat and one count of failing to comply with the terms of his probation. He was sentenced to 25 days in custody (with 30 days of pre-sentence custody), a 36-month probationary term and a discretionary order pursuant to s. 110 of the Criminal Code for 10 years.

THE PREDICATE OFFENCE

[42] On February 12, 2017, Windsor police were called to assist fire services, who were fighting a fire at 46 Chatham Street. The fire was concentrated at the rear of the building but had spread to inside the structure. Video footage showed Mr. Warren enter the alley and walk toward a garbage shed at the rear of the building. He was seen to leave the shed and retrieve a cardboard box from a dumpster at a neighbouring location. He brought the box to the shed behind 46 Chatham Street. When he left the shed, smoke could be seen coming from the top of the shed. Mr. Warren provided a full confession to the police upon his arrest.

DIAGNOSES AND TREATMENT NEEDS

[43] Dr. Wilkie diagnosed Mr. Warren with a developmental disability, anti-social and borderline personality disorder, and substance abuse disorder. Dr. Wilkie suggested that he may have attention-deficit/hyperactivity disorder (“ADHD”). As it relates to post-traumatic stress disorder (“PTSD”), Dr. Wilkie testified that she could not provide a definitive diagnosis. According to Dr. Wilkie, Mr. Warren is not a pyromaniac – he does not have a particular fascination with fire, nor is he aroused by fire setting.

[44] In her evidence, Dr. Wilkie reported that Mr. Warren has a “moderate” intellectual disability. She observed that the results of Mr. Warren’s performance on standardized psychometric testing administered by a psychologist, Dr. Penney, on February 8, 2019, placed his overall cognitive abilities in the extremely low range (full-scale IQ score equals 55 which falls within the first percentile). In other words, one percent of the population would be expected to perform as poorly or worse than Mr. Warren. There was little fluctuation in Mr. Warren’s performance across verbal and non-verbal reasoning skills. His intellectual deficits appear to be broad-based. Dr. Wilkie felt that the results of Mr. Warren’s most recent testing were similar to past assessments, highlighting the static nature of his intellectual deficits which have required support with independent activities of daily living in the past. Dr. Wilkie also observed that social judgment and decision-making skills for a person of moderate intellectual disability are limited, and caregivers must assist the person with life decisions. Such persons tend to be incapable of residing in the community without significant supports.

[45] As it relates to treatment needs, there is little doubt that Mr. Warren presents as a challenging and complex individual with highly specialized needs. According to Dr. Wilkie, Mr. Warren requires “multimodal, intensive treatment”. He needs an individualized approach that is delivered with his complex needs in mind, likely by way of one-on-one treatment, rather than group formats.

[46] Dr. Wilkie testified to this effect at the dangerous offender hearing:

Mr. Warren … has complex needs many of which are static in nature and not expected to change over time.

[I]nterventions would need to be specifically tailored to Mr. Warren taking into account his cognitive limitations.

[H]is intellectual deficits are not expected to improve with advancing age … substance use is not expected to attenuate or decrease simply due to age, that abstinence from substance use and other management interventions would be necessary in order to address some of his substance use difficulties.

ASSESSMENT OF RISK

[47] Dr. Wilkie has concluded that treatment of Mr. Warren is a challenging endeavour and that it is not likely that his fire setting behaviour could be managed in the community.

[48] Dr. Wilkie assessed Mr. Warren as falling in the high-risk category for violent recidivism “from a clinical as well as from an actuarial perspective,” as compared to the standardization sample. She opined at the dangerous offender hearing that Mr. Warren has an “overarching sense or inflated sense of his ability to control the consequences of some of these behaviours”.

[49] Dr. Wilkie also opined that Mr. Warren has shown a repeated failure to restrain his fire setting behaviour. He is not likely to receive the treatment he needs to curb impulses that have a high potential to harm others in the community. Indeed, Mr. Warren does not appear to even understand at this time what is required to lower his risk of re-offending. She offered the following further observations at the dangerous offender hearing regarding Mr. Warren’s risk assessment and treatment challenges, both present and future:

1. “[Mr. Warren] has presented as irresponsible and impulsive in his decision-making, with little consideration of plans for the future. He has participated in limited programming, and has resumed substance use and criminal behaviour after each release into the community, with few coping or life skills to reside outside of an institution.”

2. “[Mr. Warren] has not completed any treatment programs that could address his risk. He does not appear to fully appreciate the comprehensive, multimodal treatment interventions that would be necessary to address his criminal behaviours, in particular if he were to return to a more destabilized and risk-enhancing environment.”

[50] When asked at the hearing about her ultimate psychiatric opinion regarding the assessment of Mr. Warren as a dangerous offender, Dr. Wilkie stated, quite poignantly, as follows:

The risk formulation in Mr. Warren’s case identifies clear targets for intervention and development of a risk management plan, namely prevention of fire setting, substance use, emotional regulation and impulsivity. However, realistic initiation and implementation of a comprehensive treatment and management plan, with genuine engagement sustained over the long term, would be very challenging from a psychiatric perspective given Mr. Warren’s intellectual deficits, limited adaptive functioning skills, difficulty managing stress, significant impulsivity and personality disfunction. In my view, there is not a reasonable expectation that he could be managed in the community.

[Emphasis added.]

ANALYSIS ON DANGEROUS OFFENDER CRITERIA

[51] The Crown says that Mr. Warren is a dangerous offender and that he should receive an indeterminate sentence of imprisonment. Counsel for Mr. Warren initially resisted these requests, but later acknowledged the force of the Crown’s case. On the evidence before the Court, I must conclude that the requirements of s. 753(1)(a)(i) of the Criminal Code are met.

[52] The Crown argues that Mr. Warren satisfies the elements of two pathways to a dangerous offender designation: ss. 753(1)(a)(i) and 753(1)(a)(ii). The predicate offence includes serious personal injury offences as defined in s. 752 of the Criminal Code and Mr. Warren constitutes a threat to the life, safety or physical or mental well-being of other persons for the following reasons:

1. A pattern of repetitive behaviour showing failure to restrain behaviour; and

a. A likelihood of causing death or injury or inflicting severe psychological damage to other persons (s. 753(1)(a)(i)); and/or

b. A pattern of persistent aggressive behaviour showing a substantial degree of indifference respecting the reasonably foreseeable consequences to other persons of his behaviour (s. 753(1)(a)(ii)).

[53] The evidence discloses a pattern of repetitive behaviour coupled with a likelihood that the offender will commit further violent offences through a failure to restrain his behaviour. Over the years, Mr. Warren has engaged in a repetitive pattern of conduct that poses a danger to others. He is unable to control his impulses to set fires, and there is a strong likelihood that he will continue to set fires and endanger the public if released. On the current record, I cannot be satisfied that treatment will reduce the risk to an acceptable level at this time. Therefore, the Criminal Code requires that I impose an indeterminate penalty.

[54] The Crown also sought a dangerous offender designation on the alternative basis of s. 753(1)(a)(ii). Given my finding on the first pathway, I need not consider the second.

The Statutory Regime

[55] Subsection 753(1) of the Criminal Code sets out four bases upon which a person may be designated a dangerous offender, three in paragraph (a), and one in paragraph (b). These overlap to some degree. If any one of the pathways is established, the Court must find the person to be a dangerous offender.

[56] For ease of reference, ss. 753(1)(a) and (b) are reproduced below:

753. (1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied

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

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

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

(iii) any behaviour by the offender, associated with the offence for which he or she has 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; or

(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.

Mandatory vs. Discretionary Elements

[57] Dangerous offender legislation has a long history in Canada. The modern provisions were enacted into the Criminal Code in 1977. They were revised in August 1997 and then again in July 2008. The predicate offences in this case were committed after the 2008 amendments and are governed by the current regime.

[58] Prior to 2008, the application judge had discretion not to designate a person a dangerous offender, even if they met the statutory test. The judge was required to consider the applicability of a long-term offender designation before designating someone to be a dangerous offender: see R. v. Jones, 1994 CanLII 85 (SCC), [1994] 2 S.C.R. 229. A finding that a person was a dangerous offender carried with it a mandatory indeterminate sentence.

[59] The 2008 amendments shifted the judicial discretion from the finding stage to the sentencing stage. Now, a person who meets the statutory criteria in s. 753 shall be designated a dangerous offender. The finding is mandatory. However, it is no longer mandatory to impose an indeterminate sentence. The judge has discretion to choose a penalty from a range of options, including a long-term supervision order. The judge may impose a sentence that is not indeterminate if there is a reasonable expectation that a lesser measure will adequately protect the public under s. 753(4.1) of the Criminal Code.

[60] Rosenberg J.A. described this evolution in R. v. Szostak, 2014 ONCA 15, 118 O.R. (3d) 401, where he said, at para. 36:

To understand the issues in this appeal, it is necessary to briefly consider the 1977 and 1997 legislative schemes. As I will show, there has been an important shift in the way in which the legislation works. The trial judge's discretion has narrowed in one sense, the judge no longer having discretion not to find a person a dangerous offender who fits the definition. But the discretion has been broadened in that the judge has wider sentencing options for a person who does come within the dangerous offender definition. In my view, these changes have an impact on the interpretation of the dangerous offender definition. In particular, it is my view that the possibility of successful treatment is of limited application in determining whether the person is a dangerous offender. The possibility of successful treatment is significant in choosing the appropriate disposition.

Is Mr. Warren a Dangerous Offender?

i. Serious Personal Injury Offence

[61] As noted earlier, Verbeem J. ruled that arson is a serious personal injury offence. This requirement is therefore satisfied.

ii. Pattern of “Repetitive Behaviour”

[62] In order to demonstrate a pattern of repetitive behaviour, it must be shown that the offender has committed crimes with significant similarities. The requisite degree of similarity will depend on the number of offences. Distinctive dissimilarities may exist, so long as they do not detract from the elements of a pattern.

[63] As Feldman J.A. explained in R. v. Hogg, 2011 ONCA 840, 287 O.A.C. 82, at para. 40:

To summarize, the pattern of repetitive behaviour that includes the predicate offence has to contain enough of the same elements of unrestrained dangerous conduct to be able to predict that the offender will likely offend in the same way in the future. This will ensure that the level of gravity of the behaviour is the same, so that the concern raised by Marshall J.A. [in R. v. Newman (1994), 1994 CanLII 9717 (NL CA), 115 Nfld. & P.E.I.R. 197 (Nfld. C.A.)] – that the last straw could be a much more minor infraction – could not result in a dangerous offender designation. However, the offences need not be the same in every detail; that would unduly restrict the application of the section.

[64] This test was applied in Szostak, at para. 63:

The appellant's repeated resort to force that caused serious injuries shows the necessary pattern under either paras. (i) or (ii). There were sufficient relevant similarities to demonstrate the pattern called for in these paragraphs. As the court said in Neve, at para. 113: “Similarity . . . can be found not only in the types of offences but also in the degree of violence or aggression threatened or inflicted on the victims.” Over a very short period, four years, the appellant seriously injured three different people. He resorted to weapons in three of the offences and inflicted serious injuries. The trial judge’s statement, at para. 69 of his reasons, that “[n]one of the injuries inflicted on the victims were life threatening or intended to be so”, places too high a burden on the Crown and fails to reflect the gravity of the offences. Breaking a beer bottle over a person in a bar because of a dispute about standing in line; slashing a person with a pair of scissors because the appellant mistakenly thought the victim had some time earlier been involved in an altercation with him; beating an acquaintance so badly that he needed to go to hospital; and a year later slashing that same person with a knife across the face causing permanent injury demonstrate the very type of pattern intended to be captured by paras. (i) and (ii).

[65] In this case, the predicate offence is arson, as are various antecedent crimes committed by Mr. Warren. On its face, this presents a pattern of criminal activity – repeated instances of fire setting in circumstances that endanger the public.

[66] The defence argues that the offences do not form a pattern because, while the arson offences all involve fires, Mr. Warren had different motivations at different times. Mr. Topp pointed out that the apparent motivation for offending is sometimes anger, sometimes instability, sometimes a cry for help.

[67] I accept that Mr. Warren has offered different explanations for his behaviour from time to time. However, for purposes of the dangerous offender scheme, I do not see varying motivations as detracting from the existence of a pattern. The pattern is the behaviour, not the thinking behind it. Viewed in that light, the similarities are inescapable. Mr. Warren has a pattern of setting fires as a way of dealing with any number of emotional responses. If anything, the varying motivations for this behaviour – if accurately reported – adds to the unpredictability of future recidivism; it makes it more difficult to predict when and how Mr. Warren might re-offend.

iii. Likelihood of Future Offences

[68] In order to satisfy s. 753(1)(a)(i), the Crown must prove a likelihood that the offender will cause death or injury to, or inflict severe psychological damage on, another person through failure in the future to restrain his behaviour. The Crown is not required to prove that such offences will be committed. It is the present likelihood that must be proved beyond a reasonable doubt. This was helpfully explained by Code J. in R. v. Gibson, 2013 ONSC 589, at para. 18:

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”. 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. [Citations omitted.]

[69] In Gibson, Code J. quoted from the earlier decision of R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, in which La Forest J. stated for the majority, at pp. 364-5:

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 CanLII 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.

[70] Related to this inquiry is the concept of intractability. In R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, the Supreme Court ruled that courts must consider whether an offender’s behaviour is “intractable” – that is, behaviour that the offender is unable to surmount. Intractability figures into the analysis twice: first, at the designation stage and second, at the penalty stage. As Côté J. explained, speaking for the majority, in para. 31:

[T]he 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.

[71] The other side of the intractability coin is treatability. Treatability also plays a role at both the designation and penalty stage. As Côté J. described in Boutilier, at para. 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. [Citations omitted.]

[72] On the record before me, I must conclude that there is a strong likelihood that Mr. Warren will commit further arson-related offences in the future. Mr. Warren’s lengthy criminal record discloses a habitual tendency to set fires, and to engage in threats of violence. It is apparent that Mr. Warren has been unable to control his impulses in the past, despite numerous interventions by courts and offers of treatment. I must find that his fire-setting behaviour is intractable and that he is likely to continue his pattern of arson related offences.

[73] The issue of treatment prospects will be addressed again in the Charter analysis below. The evidence heard on the Charter application suggests that different treatment modalities should be used in future. However, even assuming that Mr. Warren will receive treatment that is better suited to his needs in the future, I cannot be satisfied today that the risk to the community will be reduced to an acceptable level. I am not at liberty to speculate on whether offering more tailored treatment and programming would give him the tools needed to control his fire setting tendencies. The safety of the community cannot be sacrificed on the altar of hope or optimism. A determination of reasonable possibility of eventual control in the community must be based on “evidence that an offender can be meaningfully treated, so that offender’s risk to the public can be controlled at an acceptable level, within a determinate period of time”: R. v. Solano, 2014 ONCA 185, 309 C.C.C. (3d) 386, at para. 15.

[74] When determining the likelihood of recidivism, I must consider the picture presented to the Court today. That picture would indicate that the requirements for a designation as a dangerous offender under s. 753(1)(a)(i) are met.

[75] I will now turn to the determination of penalty.

Penalty

[76] Having designated Mr. Warren as a dangerous offender, I must now turn to the question of whether Mr. Warren should receive an indeterminate sentence, a determinate sentence with a long-term supervision order, or a conventional sentence without supervision. Pursuant to s. 753(4.1), an indeterminate sentence is mandated unless “there is a reasonable expectation that a lesser measure…will adequately protect the public.” The question is therefore whether, within the time frame of a finite period of incarceration, or a long-term supervision order, an offender might be effectively treated, such that the risk of violent recidivism is reduced to an acceptable level.

[77] In Boutilier, at para. 70, Côté J. offered the following guidance regarding the exercise of a judge’s discretion in selecting the appropriate penalty:

First, if the court is satisfied that a conventional sentence, which may include a period of probation, if available in law, will adequately protect the public against the commission of murder or a serious personal injury offence, then that sentence must be imposed. If the court is not satisfied that this is the case, then it must proceed to a second assessment and determine whether it is satisfied that a conventional sentence of a minimum of 2 years of imprisonment, followed by a long-term supervision order for a period that does not exceed 10 years, will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. If the answer is “yes”, then that sentence must be imposed. If the answer is “no”, then the court must proceed to the third step and impose a detention in a penitentiary for an indeterminate period of time. Section 753(4.1) reflects the fact that, just as nothing less than a sentence reducing the risk to an acceptable level is required for a dangerous offender, so too is nothing more required.

[78] As noted above, I have no concrete evidence to indicate that Mr. Warren can be effectively treated within a determinate period of time. At present, Mr. Warren presents an unacceptable risk to the public. Given the uncertainty over whether the future risk can be managed, I must find that less draconian periods of incarceration, such as a conventional sentence, or a conventional sentence followed by a long-term supervision order not exceeding 10 years, will not adequately protect the public.

[79] I am left to conclude that the only appropriate penalty that can be imposed on Mr. Warren is an indeterminate sentence.

Conclusion on Statutory Framework

[80] For the reasons stated above, I find that the Crown has proved beyond a reasonable doubt that Mr. Warren should be designated a dangerous offender and sentenced to an indeterminate period of incarceration.

[81] I will now turn to the constitutional implications of these findings.

THE CHARTER

Positions of the Parties

Argument of the Amicus

[82] On January 24, 2022, I appointed an amicus curiae, Mr. Paul Champ, to investigate and argue the constitutional implications of an indeterminate sentence imposed on Mr. Warren, with reasons reported at 2022 ONSC 542. CSC was also given standing to respond to the Charter argument, and counsel appeared for the Government of Canada along with prosecuting counsel representing the Attorney General of Ontario.

[83] Mr. Champ, in his capacity as amicus, argues that it is more likely than not that Mr. Warren’s rights under s. 12 of the Charter will be infringed if he is to serve his sentence within a penitentiary, rather than a psychiatric hospital. Historically, while in federal custody, Mr. Warren has not received treatment or programming tailored to his special needs. Such treatment and/or programming has not, in the past, been available. Mr. Warren has spent much of his time in segregated custody, with little to no meaningful human contact.

[84] The amicus notes that, according to the Supreme Court in Lyons, indeterminate sentences are already “constitutionally precarious”; constitutionality is predicated on an effective parole process and other regular reviews of a dangerous offender’s ongoing detention. If Mr. Warren is not given access to suitable treatment, there is no possibility that he will be able to satisfy the Parole Board of his entitlement to release. The effect is to condemn Mr. Warren to what is effectively a life sentence without any meaningful prospect of parole. That, in turn, is a violation of his right to be free from cruel and unusual treatment or punishment, as protected by s. 12 of the Charter.

[85] The amicus asks for two orders: first, that CSC exercise its discretion under ss. 16(1)(a) and 29(a) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (“CCRA”), to make arrangements for and authorize the transfer of Mr. Warren to a mental health facility within 120 days of his committal, where he will receive proper care and treatment to address his behavioural problems and improve his prospects for parole; and second, that the Court grant a structural remedy under s. 24(1) of the Charter, directing that those with charge of Mr. Warren report to the Court on an annual basis regarding the progress of Mr. Warren’s care, treatment and rehabilitation, similar to that authorized in Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3 (“Doucet-Boudreau”).

Argument of the Crown

[86] The Crown opposes the requested orders of the amicus. The Crown says that amicus has failed to establish that an indeterminate sentence in CSC custody will result in a cruel and unusual punishment. It is said that Mr. Warren’s circumstances are not unique in the context of a dangerous offender application, and similar arguments have been rejected in the past as not meeting the high threshold required for the Court to find an infringement of s. 12 of the Charter.

[87] The Crown argues that it is premature to find that Mr. Warren’s rights would be infringed if he is housed in a CSC facility. A Charter breach must be established on the basis of more than “belief or opinion founded in conjecture or speculation”: R. v. Gordon (1998), 1998 CanLII 14952 (ON SC), 130 C.C.C. (3d) 129 (Ont. S.C.), at p. 152. Dr. Bradford’s evidence is stale; it does not reflect current treatment and programming resources available through the CSC mental health care delivery infrastructure. It is said that, if Mr. Warren’s rights are infringed at some point once incarcerated based on the conditions of his detention, he could bring a challenge at that time.

[88] The Crown argues that CSC is well equipped to address Mr. Warren’s treatment and rehabilitative needs. CSC’s health services are provided by a range of registered health care professionals, many of whom provide the same services in their local communities, and whose practices adhere to the same professional standards as any provincial health care provider. CSC has resources to address intensive, prolonged and individualized treatment and programming, including for inmates suffering from complex and chronic conditions and limitations. For the most significant levels of care, inmates in Ontario can be referred to Regional Treatment Centres (“RTC”) at Millhaven or Bath institutions. RTCs are designed primarily to treat acute medical situations, but a few patients have been known to stay for longer periods to gain stability and assistance with progressing in their correctional plans.

[89] Further, the Crown says that, even if the Court were to find an anticipatory breach of Mr. Warren’s Charter s. 12 rights, the relief requested is not available at law and intrudes upon the exclusive authority of the executive branch.

[90] Subsection 29(a) of the CCRA provides that the Commissioner of CSC may authorize the transfer of an offender to a “hospital, including any mental health facility … in accordance with an agreement entered into under paragraph 16(1)(a) and any applicable regulations.” It is said that the legal authority to transfer an individual to a provincial hospital presumes that CSC has negotiated an agreement between the federal minister responsible for corrections and a provincial hospital. There is no other legal basis or opportunity for the transfer of an individual to a provincial hospital, with the exception of medical escorted temporary absences to address short-term or emergent health situations. There is little that sentencing or reviewing courts may do, except comment that existing treatment or rehabilitation options are lacking.

[91] Finally, the Crown says that, even if the Court has jurisdiction to grant a remedy under s. 24(1), a structured remedy would be inappropriate. Mr. Warren’s case is distinguishable from Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, as s. 12 of the Charter does not contain the same “affirmative promise” as the provision of minority language education in s. 23. A declaration would be more appropriate, as it would respect CSC’s discretionary powers while still rectifying constitutional non-compliance.

ANALYSIS OF THE CHARTER ISSUES

Overview of Constitutional Analysis

[92] I have carefully considered the arguments advanced by the amicus, supported by counsel for Mr. Warren, and the opposing arguments advanced by the Crown. I have also considered the whole of the voluminous evidence led during the hearings on this matter. I do not propose to recite an exhaustive review of that evidence but will, instead, focus on those aspects of the evidence that bear most directly on the legal analysis.

[93] Having considered the global picture, I am persuaded by the amicus that requiring Mr. Warren to serve his sentence in a penitentiary, rather than a hospital, would more likely than not breach his rights under s. 12 of the Charter.

The Nature of the Section 12 Violation

[94] It is important to identify the precise nature of the constitutional argument before the Court. It is not a challenge to the statutory scheme governing dangerous offender designations. Nor is it a challenge to the designation of Mr. Warren as a dangerous offender or the imposition of an indeterminate sentence. The Court is not being asked to grant Mr. Warren a constitutional exemption from the operation of the Criminal Code provisions. Rather, the challenge is concerned with the conditions of imprisonment that Mr. Warren will experience at a penitentiary in the federal correctional system. The concern is that, within that system, Mr. Warren is unlikely to receive treatment, programming and/or other meaningful opportunities for rehabilitation. Historically, CSC has done little to facilitate those opportunities. Mr. Warren has spent intolerable periods of time in what was previously termed “segregation”. He has received little to no programming that caters to his specialized needs.

[95] Canadian courts have found the dangerous offender scheme to be constitutional because the sentence of indeterminate detention is subject to regular review by the Parole Board of Canada. This is the constitutional linchpin of the scheme. So long as there are regular reviews, there is, at least theoretically, the possibility of release, upon a showing that the risk to the community has been reduced to an acceptable level. In Lyons, at pp. 340-41, the Supreme Court discussed the unique nature of Part XXI sentences, as distinct from more conventional dispositions, and the reason why the parole process is so critical in this context:

In truth, there is a significant difference between the effect of a Part XXI sentence and other, more typical, sentences. When a person is imprisoned for an absolute and determinate period, there is at least the certainty that the incarceration will end at the termination of that period. The convicted person, during the term of sentence, can remain in a passive state, secure in the knowledge that he or she will be released thereafter. For the offender undergoing an indeterminate sentence, however, the sole hope of release is parole. The ordinary convict, it is true, can also choose to actively affect the length of his or her sentence by attempting to conform his or her behaviour to meet the expectations of the Parole Board. But whatever the legal nature of the interest in the availability of parole may be in general, it seems to me that, as a factual matter, the availability of parole is not as important a factor in deciding whether a determinate sentence is cruel and unusual as it is in assessing the constitutionality of a Part XXI sentence.

This is so because in the context of a determinate sentencing scheme the availability of parole represents an additional, superadded protection of the liberty interests of the offender. In the present context, however, it is, subsequent to the actual imposition of the sentence itself, the sole protection of the dangerous offender's liberty interests. Indeed, from the point of view of the dangerous offender his or her detention is never complete until it is factually complete. In this sense, each opportunity for parole will appear to the dangerous offender as the sole mechanism for terminating his or her detention, for rendering it certain. Moreover, it is clear that an enlightened inquiry under s. 12 must concern itself, first and foremost, with the way in which the effects of punishment are likely to be experienced. Seen in this light, therefore, the parole process assumes the utmost significance for it is that process alone that is capable of truly accommodating and tailoring the sentence to fit the circumstances of the individual offender.

In my opinion, if the sentence imposed under Part XXI was indeterminate, simpliciter, it would be certain, at least occasionally, to result in sentences grossly disproportionate to what individual offenders deserved. However, I believe that the parole process saves the legislation from being successfully challenged under s. 12, for it ensures that incarceration is imposed for only as long as the circumstances of the individual case require.

[Emphasis added.]

[96] Reference may also be made to the case of Steele v. Mountain Institution, 1990 CanLII 50 (SCC), [1990] 2 S.C.R. 1385. In that case, the offender sought a writ of habeas corpus, having been imprisoned for almost 37 years under the previous dangerous offender regime. He had applied for parole numerous times over the years and been denied. The Supreme Court concluded that the offender’s continued detention was grossly disproportionate and contravened s. 12 of the Charter. In the Supreme Court’s view, the unlawful incarceration was not due to any structural flaw in the dangerous offender provisions, but rather by errors committed by the Parole Board over the years. In particular, it was found that the Parole Board placed too much focus on relatively minor breaches of discipline and failed to give careful consideration to the appropriate criteria. Here, again, the Supreme Court emphasized that the parole process is crucial to ensuring the constitutional validity of the dangerous offender scheme.

[97] This same theme emerged in a different context in the case of R. v. Bissonnette, 2022 SCC 23, 414 C.C.C. (3d) 1. In that case, the Supreme Court ruled that the Charter prohibits the stacking of parole ineligibility periods in sentencing offenders convicted of multiple-count murders. The Supreme Court was firm in its conclusion that a sentence of imprisonment for life, without a realistic possibility of parole, is degrading in nature, incompatible with human dignity and infringes s. 12 of the Charter. Rehabilitation cannot ever be disregarded in sentencing. The principle of dignity compels a recognition of the capacity in all individuals to grow and change. As it was held in Bissonnette, at para. 8, the objective of rehabilitation “is intimately linked to human dignity in that it conveys the conviction that every individual is capable of repenting and re‑entering society.” Dignity presumes that all persons are inherently worthy and entitled to respect. It presumes that all persons have the potential to reform, irrespective of the circumstances that brought them before the courts.

[98] As it was put in Bissonnette, at para. 48, quoting R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089: “[r]ehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world”. Bissonnette instructs, at para. 9, that the belief in rehabilitation must never be abandoned or extinguished, whatever the circumstances of a particular case. Even where other considerations – such as deterrence, denunciation, and protection of society – are paramount and rehabilitation is of secondary importance, one cannot oust the hope, however faint, that the offender will turn their life around.

[99] I note, in particular, Wagner C.J.’s comments, at paras. 73 and 81 of Bissonnette:

[73] For the reasons that follow, I conclude that, by allowing consecutive 25‑year parole ineligibility periods to be imposed in cases involving first degree murders, s. 745.51 Cr. C. authorizes the imposition of sentences of imprisonment for life without a realistic possibility of parole before death for all offenders who must serve such periods consecutively. Such sentences are degrading in nature and thus incompatible with human dignity, because they deny offenders any possibility of reintegration into society, which presupposes, definitively and irreversibly, that they lack the capacity to reform and re‑enter society. The conclusion that a sentence of imprisonment without a realistic possibility of parole is incompatible with human dignity is supported by an analysis of the effects that such a sentence may have on all offenders on whom it is imposed, as well as by a review of international and comparative law. Finally, the judicial discretion cannot save the impugned provision, and the royal prerogative of mercy does not offer a realistic possibility of release for an individual serving a sentence of imprisonment for which there is no other review mechanism.

[81] An examination of the nature of a sentence of imprisonment for life without a realistic possibility of parole leads to the conclusion that it is incompatible with human dignity, a value that underlies the protection conferred by s. 12 of the Charter. This punishment is degrading in nature in that it presupposes at the time of its imposition, in a definitive and irreversible way, that the offender is beyond redemption and lacks the moral autonomy needed for rehabilitation. This alone justifies the conclusion that this punishment is cruel and unusual by nature. It will nonetheless be helpful to review in addition the effects that this sentence may have on all offenders on whom it is imposed.

[100] More recently, Martin J. reinforced this point in R. v. Hills, 2023 SCC 2, 422 C.C.C. (3d) 1, at para. 141:

While rehabilitation has no standalone constitutional status, the strong connection between the objective of rehabilitation and human dignity was explained in Bissonnette. The comments made in relation to offences which may be cruel and unusual by their nature also apply to mandatory minimums under this first prong of s. 12. Rehabilitation “reflects the conviction that all individuals carry within themselves the capacity to reform and re‑enter society”. The Court found that a punishment that completely disregards rehabilitation would disrespect and be incompatible with human dignity and would therefore constitute cruel and unusual punishment under s. 12. Justice Gonthier’s statement at para. 45 in Morrisey, that s. 12 is not violated due to the “presence or absence of any one sentencing principle”, needs to be read in light of this Court’s conclusion that “[t]o ensure respect for human dignity, Parliament must leave a door open for rehabilitation, even in cases where this objective is of minimal importance”.

[Citations omitted; emphasis added.]

[101] The hope of rehabilitation must be maintained even in cases involving dangerous offenders. It is true that the primary objective of the dangerous offender scheme is the protection of the community; that is the dominant concern. However, even the dangerous offender scheme must leave a place for consideration of the offender’s eventual re-integration into the community, however remote that objective may be. The Supreme Court made this clear in Boutilier, at para. 56:

Mr. Boutilier contends that, by referring solely to the objective of public protection, the wording of s. 753(4.1) excludes other sentencing objectives and principles from the sentencing judge’s discretion. In my view, a fair reading of s. 753(4.1) does not result in the exclusion of these principles. Parliament is entitled to decide that protection of the public is an enhanced sentencing objective for individuals who have been designated as dangerous. This does not mean that this objective operates to the exclusion of all others. It is permissible for Parliament to guide the courts to emphasize certain sentencing principles in certain circumstances without curtailing their ability to look at the whole picture. Emphasis on the public safety component is consistent with the fact that public protection is the general purpose of Part XXIV of the Code. Further, because the enhanced objective of public safety parallels the justification for imposing an indeterminate detention, such emphasis is also consistent with the principles of sentencing generally.

[Citations omitted.]

[102] It may well be that release of persons designated as dangerous offenders is a rare occurrence. By its very nature, such a designation implies intractability and a resistance to treatment. Yet, however grim the prospects, the justice system must proceed on the basis that hope is not extinguished. Related to this is the duty on the justice system to ensure that the hope of rehabilitation, however slim, is not ignored. Our system cannot countenance the proverbial notion of “locking someone up and throwing away the key”. The state must offer what is necessary to allow an offender to work toward the possibility that they might eventually be granted parole.

[103] How do these principles impact on Mr. Warren’s claim? While I have determined that Mr. Warren’s offending behaviour poses an unacceptable risk to the community, and that there is no evidence to indicate that the risk can be managed within a determinate period, the Court must maintain the hope that Mr. Warren may, at some point in his sentence, make sufficient progress that he is eligible for release. This can only happen if he is given the opportunity to address the issues that have caused him to offend and re-offend.

[104] The Crown argues that the principles stated in Lyons and Bissonnette are met in this case. Mr. Warren must be reviewed for full parole eligibility seven years after being brought into custody and thereafter, every two years pursuant to ss. 120(2) and 123(1) of the CCRA. I accept that Mr. Warren can avail himself of the review process.

[105] The problem is this: there is a chasm between what exists in theory and what can happen in practice. If an offender is denied appropriate treatment and programming, suited to his needs, there will be nothing to review. In the absence of those opportunities – reflected in suitable programming and treatment options – rehabilitation is unlikely to occur. Where an offender’s progress is left to stagnate, the existence of review is a hollow gesture – a pro forma process with an inevitable outcome.

[106] If there are no programs tailored to Mr. Warren’s needs, and no suitable treatment options, there will be no possibility of change. If there is no possibility of change, there is no possibility of release. Herein lies the Charter issue. The prospect of a sentence of life imprisonment without any meaningful opportunity for rehabilitation, is an affront to the principle of dignity and offends s. 12 of the Charter: see Bissonnette, at para. 60.

Reviewing the Conditions of Imprisonment

[107] The constitutional issues in this case are concerned with the conditions of Mr. Warren’s sentence, rather than its duration. Sentencing judges do not, as a rule, peer through the windows of the penitentiary in this fashion. The focus tends to be on the duration of a sentence, rather than the manner in which it will be served. The conditions of imprisonment are generally left to the discretion of correctional authorities. In the result, there is an opaque quality to what goes on inside the walls of our prisons. The correctional system is, in some respects, akin to a “black box” .

[108] This is not a new observation. In the preface to the Commission of Inquiry into Certain Events at the Prison for Women in Kingston (Ottawa: Public Works and Government Services Canada, 1996), also known as the Arbour Report, the Hon. Louise Arbour observed that, “[c]orrections is the least visible branch of the criminal justice system.” She went on to note the following:

Occasions such as this, where its functioning is brought under intense public scrutiny, are few and far between. This may explain the discomfort of Corrections officials in handling this level of public attention. The lack of public scrutiny is in stark contrast to accountability processes in the law enforcement and judicial branches of the criminal justice system. Through hundreds of criminal trials and appeals, systemic shortcomings and individual performances of police officers, prosecutors and judges are examined publicly in a robust adversarial fashion.

[109] After setting out a proposal for greater judicial oversight of the management of sentences, Arbour J.A. (as she then was) commented, at p. 185, that:

Ultimately, considering the growth of pre-trial judicial remedies and the near neglect of post conviction rights, I think that a new balance may need to be struck. The Correctional Service may not share my view of the need for judicial supervision. Professor Hélène Dumont former Dean at the Faculty of Law, University of Montreal, said:

It is self-evident to students of penal law that correctional authorities do not take at all kindly to judicial admonitions regarding their abuse of discretion and legendary contempt for inmate rights. (Translation)

[110] While these comments were offered many years ago, the ‘hands off’ approach of the courts has persisted. There have been instances of judicial scrutiny of correctional practices. For example, the courts have opined on the constitutional validity of segregation practices: see Canadian Civil Liberties Association v. Canada, 2019 ONCA 243, 144 O.R. (3d) 641; Brazeau v. Canada (Attorney General), 2020 ONCA 184, 149 O.R. (3d) 705; and Francis v. Ontario, 2021 ONCA 197, 154 O.R. (3d) 498. Habeas corpus is available to an offender seeking to challenge the lawfulness of detention. However, for the most part, the correctional system operates with little in the way of judicial oversight or supervision. Sentencing judges do not tend to consider conditions of imprisonment at the time sentence is imposed. Fitness of sentence is seen as more of a quantitative, not qualitative, measure.

[111] As a general proposition, the experience of punishment is a function of various factors, including but not restricted to the length of the sentence. Courts have increasingly come to recognize this. For example, where conditions of remand detention are particularly harsh due to overcrowding, lockdowns, or the potential transmission of COVID-19, this may increase the amount of credit that can be claimed for pre-sentence custody. Where certain classes of individuals are incarcerated, such as police officers, courts may reduce the length of sentence to account for the hardship such individuals will experience in custody.

[112] In R. v. Smith, 1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045, Lamer J. (as he then was) recognized the relevance of the “nature and conditions” of a sentence in the s. 12 analysis. In that case, the Supreme Court found that the seven-year mandatory minimum sentence imposed by s. 5(2) of the Narcotic Control Act (the precursor statute to the Controlled Drugs and Substances Act, S.C. 1996, c. 19) for importation was unconstitutional, based on a reasonable hypothetical. In discussing how to measure the fitness of sentence, Lamer J. offered the following guidance, at p. 1073:

One must also measure the effect of the sentence actually imposed. If it is grossly disproportionate to what would have been appropriate, then it infringes s. 12. The effect of the sentence is often a composite of many factors and is not limited to the quantum or duration of the sentence but includes its nature and the conditions under which it is applied. Sometimes by its length alone or by its very nature will the sentence be grossly disproportionate to the purpose sought. Sometimes it will be the result of the combination of factors which, when considered in isolation, would not in and of themselves amount to gross disproportionality.

[113] More recently, Lamer J.’s dicta in Smith was quoted with approval by Martin J. in Hills, at para. 136:

The effects of a sentence are not measured in numbers alone. They are “often a composite of many factors” and include the sentence’s “nature and the conditions under which it is applied”. Thus, as Lamer J. observed, a sentence of “twenty years for a first offence against property would be grossly disproportionate, but so would three months of imprisonment if the prison authorities decide it should be served in solitary confinement”. When presented with a sufficient evidentiary record, courts should consider how the conditions of confinement — for example, the difference between the supports available while serving a non‑custodial conditional sentence versus serving a custodial sentence in a federal institution — would affect an individual offender. Trial courts have increasingly been of this view.

[Citations omitted.]

[114] Academic commentators have recommended broader consideration of the qualitative conditions of incarceration. Chris Rudnicki, in his article “Confronting the Experience of Imprisonment in Sentencing: Lessons from the COVID-19 Jurisprudence” (2021) 99:3 Can. B. Rev. 469 at p. 473, offered this comment:

Seldom, however, do judges consider the qualitative conditions of incarceration following the imposition of sentence. Having decided a fit length of time in custody that accounts for seriousness of the offence and the degree of responsibility of the defendant, what happens during that time, if it is considered at all, is presumed to be a matter of administration for prison officials. The sentencing judge generally hears nothing about, and therefore does not consider, any of the variables that will determine what the experience of imprisonment is actually like for the offender: where the sentence is to be served, how they may be classified by prison authorities, what programming or employment will be available to them, whether they can expect to fear violence from staff or other inmates, or how often they will have access to visits with community services or loved ones. More often than not, judges and lawyers treat questions of prison quality and administration as “technological or administrative issues,” rather than issues relevant to determining a fit sentence. Lisa Kerr calls this preoccupation with quantity over quality in sentencing theory the “duration focus”: the “view that imprisonment can be measured and fairly distributed by scaling particular amounts of time ... in response to wrongdoing”.

[Footnotes omitted.]

[115] Benjamin Berger similarly argued the following in his paper “Individualized Proportionality and the Experience of Punishment: An Emergent Paradigm for Canadian Sentencing?”, in Julian V. Roberts and David Cole, eds., Making Sense of Sentencing (2d) (Toronto: University of Toronto Press, 2020):

First, this turn toward serious regard for the offender’s experience of punishment attacks a paradox at the heart of traditional sentencing practices. The customary approach has focussed judges’ attention on the quantum and form of punishment in the pursuit of proportionality: the severity of a carceral “sentence” — that which must be made proportionate to the gravity of the offence and the degree of responsibility of the offender — lies in the duration of the sanction imposed by the Court. On this view, proportionality is an essentially quantitative assessment. And yet, this way of understanding proportionality is fundamentally at odds with the reality that the severity of a sentence lies not in the cool metrics of quantum alone, but in the experience of suffering — something driven by the real consequences and conditions of punishment, and their effects on a given person’s life. Otherwise put, proportionality must be a qualitative inquiry. We know full well, for example, that whether an offender will serve his sentence in a maximum or minimum security facility is determinative of the real severity of a sentence; and yet the system proceeds on the fiction that a judge can be coherently agnostic as to classification when imposing a sentence. The conceptual turn that I am tracing in the jurisprudence involves a kind of phenomenological sensitivity — a commitment to the idea that the lived experience of society’s response to wrongdoing is what should interest us in sentencing.

[116] Whatever the case for peering into the penitentiary in conventional sentencing cases, this sightline takes on enhanced significance when the penalty is an indeterminate sentence. As with most legal issues, context is critical. It is the indeterminate quality of the sentence that gives rise to the constitutional concern. Because of his detention, Mr. Warren will be exclusively reliant upon CSC for his basic necessities of life, including health care. He cannot wait until release to access meaningful supports. If those supports are not offered during the period of detention, there will never be a release.

[117] I do not suggest that judges should oversee management of custodial institutions or suspend deference to correctional authorities. To the contrary, it is important that proper deference be paid to the expertise of those who manage the correctional system. This is a complex endeavour, calling for specialized skill, knowledge, and experience. The point is that deference is not absolute, and that deference does not imply indifference. There are occasions when courts must take a closer look at the conditions of imprisonment to ensure that those who are deprived of their liberty are not deprived of their constitutional rights.

[118] The Crown further argues that there is no evidence to indicate that Mr. Warren will ever qualify for release, even with specialized treatment. To be sure, the prospect of rehabilitation, like the calculation of risk, has a predictive quality that is inherently imperfect: see Bissonnette, at para. 84. Various factors bear on the calculus, not least of which is the proposition that future behaviour is best predicted by past behaviour. However, even that proposition is rooted in assumption rather than empirical verification. There are no guaranteed outcomes given the infinite exigencies that can affect human conduct, which is itself infinitely variable. Courts must engage in this exercise despite its uncertain character. Accepting these limitations, we do our best to forecast future events based on logic, reason, what we know, and a greater or lesser degree of hope.

[119] What we do know is that failing to provide such treatment will likely lead to no change at all, or worse, an escalation of Mr. Warren’s difficulties. It will not assist Mr. Warren to offer treatment or programming that is beyond his comprehension level, or that requires him to commune in group settings, or that otherwise ignores his special needs and requirements. That is the practical equivalent of offering no treatment or programming at all. Without meaningful intervention, to assist Mr. Warren in dealing with the issues that lead to his criminality, he has no hope of re-integrating into the community.

[120] The Crown has pointed to various instances in which services were offered to Mr. Warren and he declined to avail himself of that help. This did happen from time to time. There are occasions when Mr. Warren chose not to follow through with programs. He bears some responsibility for this. However, this does not tell the whole story. Within the correctional system, there has been a dearth of programming that is suited to Mr. Warren’s specialized needs. The issue of engagement logically depends, to some extent, on the suitability of the program or treatment offered. Mr. Warren’s failure to engage in programming beyond his cognitive capacity, or group programming, where he would be forced to interact with other inmates, may reflect discomfort and/or frustration. It is true that, on some occasions, Mr. Warren was responsible for not following through with treatment or programs. This reality does not absolve the state of its obligation to furnish treatment and programs that can have a meaningful impact.

[121] Finally, it bears noting that Mr. Warren has no interpersonal relationships to rely upon. He has no family connections and, it would appear, no friendships to speak of. His challenges make it difficult for him to establish connections with others. Within the correctional setting, he is vulnerable to attack by other inmates, and has spent much of his time in conditions of segregation. Mr. Warren is very much alone in the world and has historically spent much of his time alone while in custody. Absent suitable treatment and/or programming, Mr. Warren could well be without any meaningful human contact for the duration of his incarceration.

[122] I appreciate that there are now limitations on the time that individuals can spend in segregation-like conditions (now termed special intervention units). Notwithstanding that, it will likely be difficult, if not impossible, for Mr. Warren to socially integrate into the general population. From a legal perspective, the provision of treatment opportunities is critical because it bears on rehabilitation. From a human perspective, the provision of treatment is critical because it might spare Mr. Warren the fate of a lifetime of isolation.

Can Mr. Warren’s Needs Be Met In A Penitentiary?

[123] As noted above, Mr. Warren has highly specialized and complex needs, arising out of a profound cognitive deficit and various mental disorders. Were he to be housed in a penitentiary, he would not likely have access to adequate programming, counselling, or other interventions that might facilitate treatment and/or rehabilitation. This is not a speculative finding. It is based on concrete evidence chronicling Mr. Warren’s past treatment while in CSC custody. It is clear from that evidence that Mr. Warren was not provided with programming or treatment that was tailored to his needs. Various entries in CSC records have institutional authorities opining that, while Mr. Warren requires certain types of interventions, they are simply not available in the correctional setting.

Past Treatment of Mr. Warren

[124] The historical treatment of Mr. Warren in the correctional system is troubling to say the least. It would be fair to describe his experience as one of languishing in custody, with little to no programs, and little to no meaningful human contact.

[125] As the amicus notes in his factum, at para. 38:

Mr. Warren spent over eight years in federal custody between 2001 and 2012 over two federal sentences (40 months plus 58 months). According to the records, he was admitted to RTC 17 times during these periods of incarceration. A file review indicates that there was no significant information on file showing that he participated in programming, though some brief notations suggest that he would benefit from programming “but nothing was available to match his cognitive needs”. He was frequently assaulted by other inmates and engaged in self-harming and suicidal behaviour. He was found to be “unmanageable” when not at RTC and was usually held in prolonged segregation when at Warkworth or Millhaven. He was recognized as low functioning. On different occasions, he was placed in 4-point pinel restraints for two to three days at a time. In his last year of federal incarceration, an RTC interdisciplinary team noted that he “[f]unctions at a low level and would benefit from programs but none are available that would be appropriate for him.

[126] And at paras. 17-18,

17. Mr Warren’s second time in federal custody was similar to the first. He engaged in self-injurious behaviours and threatened staff and other inmates. He was assaulted by other inmates. Notations on files indicated he “would benefit from program but nothing was available to match his cognitive needs.” He spent most of his sentence in segregation at the Kingston Penitentiary, though he was transferred to RTC on numerous occasions. He was charged and convicted with threatening staff and assaulting a staff member by spitting. Five months was added to his sentence.

18. Despite Mr Warren’s many admissions to RTC, it does not appear that he gained any particular benefit. He did comply with medication for periods, although at other times he was subdued with 4-point pinel restraints. He did not receive any treatment for his firesetting behaviour.

[127] I agree with the amicus’s position that over the years Mr. Warren has been detained in the penitentiary, he has received an unacceptable level of care. It has been said that the best predictor of future behaviour is past behaviour. While that has more often been applied to the behaviour of offenders, it has some resonance in this case as it relates to the anticipated treatment of Mr. Warren.

Where might Mr. Warren receive the treatment that he requires?

[128] According to Dr. John Bradford, a renowned forensic psychiatrist called to testify by the amicus, Mr. Warren would be best treated in provincial hospital, where he can receive focussed one-on-one treatment for issues relating, not only to anger management, but fire-setting behaviour, and trauma. It is in the hospital that Mr. Warren’s cognitive limitations can be accounted for, with programs aimed at facilitating comprehension. Indeed, Dr. Bradford testified that within the hospital, Mr. Warren might actually find himself in the company of others who share his particular challenges, as there are wards dedicated to persons who experience developmental delays.

[129] Dr. Bradford identified a number of reasons why a hospital is a more fitting place than a jail for Mr. Warren. I will now turn to that evidence.

CSC vs. Hospital

[130] The forensic system of provincial psychiatric hospitals is engaged where an offender is found to be not criminally responsible by reason of mental disorder. Both the correction system and the forensic system house individuals with mental disorders and cognitive deficits. Both systems house individuals who, if untreated, pose a threat to the community. Both systems involve a deprivation of liberty. Both systems are concerned with public protection.

[131] While there are common features, there are on the evidence, stark differences between the treatment of offenders in the correctional system, and the treatment of offenders in the forensic system. According to Dr. Bradford, these differences are not only reflected in practice, but in philosophy, culture, and ethos. The correctional system is by necessity, concerned primarily with issues of security, and management of the population. By way of contrast, hospitals, while not disinterested in security, are concerned primarily with treatment. The very infrastructure of hospitals is different than any facility within the correctional system. The budget of an RTC would allow for approximately 80 percent correctional staff and 20 percent health care staff. Using St. Lawrence Valley institutional as a comparator, Dr. Bradford noted that its budget contemplated about 80 percent for health care staff and about 20 percent for security.

[132] The difference between the correctional and the forensic systems is reflected in the caselaw dealing with persons found not criminally responsible by reason of mental disorder. In the latter case, the focus is on treatment, rather than punishment.

[133] In Ontario (Attorney General) v. G., 2020 SCC 38, [2020] 3 S.C.R. 629, the Supreme Court stated the following:

[33] Part XX.1 of the Criminal Code sets out the “assessment‑treatment system” that applies to persons who are exempt from criminal responsibility and receive a verdict of NCRMD by virtue of ss. 16(1) and 672.34 (Winko, at para. 16). Part XX.1 provides for the establishment of provincial review boards, with the responsibility to hold hearings to determine whether to grant persons found NCRMD conditional or absolute discharges under s. 672.54.

[34] In Winko, at para. 20, this Court described the purposes of Part XX.1, a scheme founded on the “twin goals of fair treatment [for those found NCRMD] and public safety”:

. . . the purpose of Part XX.1 is to replace the common law regime for the treatment of those who offend while mentally ill with a new approach emphasizing individualized assessment and the provision of opportunities for appropriate treatment. . . . [The NCRMD finding] triggers a balanced assessment of the offender’s possible dangerousness and of what treatment‑associated measures are required to offset it. Throughout the process the offender is to be treated with dignity and accorded the maximum liberty compatible with Part XX.1’s goals of public protection and fairness to the NCR accused. [para. 43]

[Emphasis added.]

[134] In Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, the Supreme Court observed:

39 In the spirit of supplanting the old stereotypes about mentally ill offenders, Part XX.1 supplements the traditional guilt-innocence dichotomy of the criminal law with a new alternative for NCR accused -- an alternative of assessment to determine whether the person poses a continuing threat to society coupled with an emphasis on providing opportunities to receive appropriate treatment. The twin branches of the new system -- assessment and treatment -- are intimately related. Treatment, not incarceration, is necessary to stabilize the mental condition of a dangerous NCR accused and reduce the threat to public safety created by that condition. As Macfarlane J.A. stated regarding the predecessor scheme in Re Rebic and The Queen, at p. 171, quoted with approval by Lamer C.J. in Swain, at p. 1004:

The objective of the legislation is to protect society and the accused until the mental health of the latter has been restored. The objective is to be achieved by treatment of the patient in a hospital, rather than in a prison environment. [Emphasis added by Lamer C.J.]

40 Part XX.1 protects society. If society is to be protected on a long-term basis, it must address the cause of the offending behaviour -- the mental illness. It cannot content itself with locking the ill offender up for a term of imprisonment and then releasing him or her into society, without having provided any opportunities for psychiatric or other treatment. Public safety will only be ensured by stabilizing the mental condition of dangerous NCR accused.

41 Part XX.1 also protects the NCR offender. The assessment-treatment model introduced by Part XX.1 of the Criminal Code is fairer to the NCR offender than the traditional common law model. The NCR offender is not criminally responsible, but ill. Providing opportunities to receive treatment, not imposing punishment, is the just and appropriate response.

The need for treatment rather than punishment is rendered even more acute by the fact that the mentally ill are often vulnerable and victimized in the prison setting, as well as by changes in the health system that many suggest result in greater numbers of the mentally ill being caught up in the criminal process.

42 By creating an assessment-treatment alternative for the mentally ill offender to supplant the traditional criminal law conviction-acquittal dichotomy, Parliament has signalled that the NCR accused is to be treated with the utmost dignity and afforded the utmost liberty compatible with his or her situation. The NCR accused is not to be punished. Nor is the NCR accused to languish in custody at the pleasure of the Lieutenant Governor, as was once the case. Instead, having regard to the twin goals of protecting the safety of the public and treating the offender fairly, the NCR accused is to receive the disposition “that is the least onerous and least restrictive” one compatible with his or her situation, be it an absolute discharge, a conditional discharge or detention.

[Emphasis added.]

[135] Persons found to be NCRMD are to be treated, rather than allowed to “languish in custody”. That is precisely what the amicus seeks for Mr. Warren. Mr. Warren is criminally responsible for his behaviour. Yet, one can surmise that his mental disorders and cognitive limitations have contributed to his criminality. If that be the case, his criminality can only be controlled by addressing his mental disorders and cognitive limitations. The treatment recommended for Mr. Warren – focused, specialized, adapted one-on-one treatment – is unlikely to be available within the correctional system. But a hospital can provide that type of treatment and, beyond that, is best situated to offer Mr. Warren some measure of treatment, dignity, and humanity.

[136] I recognize there are hospital facilities within the correctional system – the RTCs. However, the primary objective of an RTC, since it exists within the correctional system, is to manage the inmate’s behaviour such that they can return to their parent institution. The goal is to stabilize the person so that they will comply with institutional rules. The focus is on management of behaviour rather than long-term treatment goals. Further, because the physical infrastructure at RTCs are built for control, the delivery of therapeutic activities is more challenging.

[137] CSC is mandated to provide essential and non-essential health care in the correctional environment, including mental health care. The RTCs are designated as psychiatric care facilities – Schedule 1 facilities – under provincial legislation. However, according to Dr. Bradford, the level and standard of care to be found in RTC is below the standard of care available in a provincial hospital.

[138] In 2017, Dr. Bradford was retained by CSC to study the standard of care. He concluded that RTC was not providing an acceptable level of psychiatric patient care. Staffing levels were significantly lower, the infrastructure was problematic, and the environment was not conducive to the delivery of mental health services. Because of these issues, individualized treatment plans were reviewed and updated less frequently than would be the case at a hospital. In addition, while medical staff manage RTC medical services, the overall management of the centres is under the auspices of correctional authorities.

[139] Dr. Bradford acknowledged that there have been improvements in health care offered by CSC since his report. Among other things, there are higher staff-to-patient ratios. However, he testified that Mr. Warren is still more properly placed in a hospital rather than a correctional setting because of the many differences in delivery of health care services between an RTC and a provincial forensic hospital.

[140] For example, CSC tends to adopt a “one-size-fits-all” approach. According to Dr. Bradford, this type of approach does not work when dealing with a person whose IQ is 55. Developmental delay imposes very real challenges that are difficult to meet in a penitentiary. People with developmental delays are very different than those with a serious mental disorder such as schizophrenia. Treatment programs have to be adapted. The benefit of a hospital environment is that there may be wards dedicated to those who are developmentally delayed, allowing not only specialized treatment, but the possibility of interaction with similarly situated individuals. Those who are developmentally delayed are vulnerable to abuse. Within the hospital setting, there is less potential for intimidation and violence at the hands of other inmates.

[141] Other differences include responses to a lack of engagement by an individual. It is true that neither system can force treatment on an unwilling subject. However, there are tools that can be used to encourage engagement, even in those who express a disinterest. Within an RTC, an offender’s failure to engage would likely result in a discharge and return to the parent institution. Within a hospital, medically trained staff would work to understand why there is a lack of engagement and try to rectify the situation.

[142] There is also a different approach to misbehaviour in the forensic system, as compared to the correctional system. Mr. Warren can be difficult to manage. He is known to utter threats and spit at correctional officers, foul his cell, and engage in other disruptive conduct. In a penitentiary, these are seen as behavioural infractions, sometimes leading to institutional charges. For example, as the amicus noted at para. 17 of his factum, during his second penitentiary sentence, served primarily in segregation at Kingston Penitentiary, Mr. Warren was charged and convicted with threatening staff and assaulting a staff member by spitting. Five months were added to his sentence.

[143] On the evidence of Dr. Bradford, at a hospital, these types of incidents would likely be viewed be seen as symptomatic of underlying illness. Steps would be taken to understand and treat the issues, rather than punish the behaviour. Conduct that would be treated by correctional officers as a disciplinary infraction, worthy of punishment, is likely to be seen by staff at a forensic hospital as a symptom of an underlying problem.

[144] For example, Dr. Bradford testified that people who are developmentally delayed often have a kind of bravado and confabulation which can cause them to make threats. Mr. Warren certainly has a history of making serious threats to correctional officers and has amassed many institutional charges on that basis. Dr. Bradford testified that threats are far less likely to result in charges at a forensic hospital. They are more likely to be seen as something requiring treatment, rather than punishment. As he put it in his testimony:

When we – one of the things that we had to deal with in – in St. Lawrence Valley is that when you have people that are disturbed, you know, they can tell you – they can swear at you, tell you to eff off and things like this. This is fairly common in a forensic hospital. And if the person’s psychotic, nothing much turns on it. In a correctional facility, that could be – result in an institutional charge. And one of the things that we had to sort of work out to say is that we don’t want these people charged at all because this is part of – they may be letting off steam and they’re doing this in – in a – in a way that may be helpful and we can handle it. If we can’t handle it, we will bring in Corrections to help with it.

[145] Dr. Bradford also offered a different lens through which to view Mr. Warren’s presenting conditions and diagnosis. To be clear, Dr. Bradford did not meet with Mr. Warren and did not review the voluminous documentation filed on the hearing. However, Dr. Bradford’s opinion has a persuasive appeal as it is grounded in some degree of common sense.

[146] The Crown relies on the assessment of Mr. Warren done by Dr. Wilkie and I have relied on that assessment when applying the statutory criteria in Part XXIV of the Criminal Code. Dr. Wilkie based her conclusions on interviews with Mr. Warren and a broad-based review of relevant documentation. The Crown filed voluminous reports and materials about Mr. Warren. He has spent much of his life in institutions, where his conduct has been supervised, scrutinized, documented, and interpreted. These documents are filled with subjective impressions and opinions offered by those who have interacted with Mr. Warren. Those documents form part of the file that will follow him throughout his time in federal custody.

[147] As noted earlier, Dr. Wilkie found that Mr. Warren has a developmental disability, anti-social and borderline personality disorder, and a substance abuse disorder. Dr. Wilkie suggested that he may have ADHD. As it relates to PTSD, Dr. Wilkie testified that she could not provide a definitive diagnosis. She relied on the fact that Mr. Warren, when asked, said that he did not have any traumatic experiences. In connection with other issues, Dr. Wilkie characterized Mr. Warren as an unreliable historian. Yet, his denial of trauma seemed to have been taken at face value. But we know that Mr. Warren was abused for much of his early life, and we know that his ability to communicate is significantly compromised by his intellectual deficits.

[148] Dr. Wilkie has described Mr. Warren as a man who is anti-social, angry, and aggressive. There is some truth to that description, particularly as it pertains to the dangerous offender finding. Mr. Warren is unable to curb his anti-social impulse to set fires, and he makes frequent threats to cause harm that are very frightening to those on the receiving end. He has a long history of anti-social conduct.

[149] However, this may not reflect the whole picture. There is another dimension to Mr. Warren, one that depicts him as, not merely an offender, but also a victim.

[150] This was the view of Dr. Bradford, who testified that Mr. Warren must logically have experienced some degree of PTSD. There is no question that Mr. Warren has been exposed to trauma throughout his life. His childhood was plagued by abuse; he likely never felt safe. His father not only abused him but set out to distort his sense of what was right and wrong. His father punished him for being pro-social and rewarded him for doing bad things.

[151] One might also expect, as a matter of common sense, that Mr. Warren has experienced trauma in other settings, including the correctional setting. He has been set upon by other inmates, and often kept in segregation for his own protection. He asks to be placed in segregation, presumably because it is frightening for him to be exposed to the risk of harm in general population.

[152] Dr. Bradford testified that because of Mr. Warren’s disabilities, the conventional tools for PTSD testing would not work very well. PTSD is largely based on a person’s self-reporting. This is a challenge for Mr. Warren. His developmental issues may make it difficult for him to reliably express his motivations or narrate his history. There is little doubt that trauma was ever-present in Mr. Warren’s life. Dr. Bradford opined that it would be miraculous if someone with Mr. Warren’s past experience did not suffer from PTSD. I am inclined to accept that proposition, and to find that, while Mr. Warren may not be adept at communicating his experience with trauma, one can presume that it has had at least some impact on his psychological well-being. This does not alter the conclusion on dangerousness, but it does reveal that trauma should be a component of any treatment program designed for Mr. Warren. He is a perpetrator, but he is also a victim.

[153] Much has been said and written about the adequacy of mental health treatment for incarcerated persons. These issues have long vexed commentators, prison investigators, government policy makers, lawyers, and judges. It is a notorious fact that correctional facilities house many individuals who are suffering from mental health disorders. There has been criticism of the quality of health care for those experiencing mental health challenges. The Office of the Correctional Investigator has often commented on this problem, as have other bodies, such as the Senate and the Mental Health Commission: see Senate of Canada, Out of the Shadows at Last: Transforming Mental Health, Mental Illness and Addiction Services in Canada: Report of the Standing Senate Committee on Social Affairs, Science and Technology (May 2006) (Chair: the Hon. Michael J.L.; Deputy Chair: the Hon. Wilbert Joseph Keon).

[154] The Senate Report covered a large number of topics, one of which was mental health services in the federal and provincial correctional systems. The Senate Committee concluded that offenders are not being well served, arguing strongly for a standard of mental health care within correctional institutions and in post-release settings equivalent to that available in the broader community. I note that at present, there is also a bill before the Standing Senate Committee on Legal and Constitutional Affairs containing a number of proposals that would increase judicial oversight of correctional facilities: Bill S-230, An Act to amend the Corrections and Conditional Release Act, 1st Sess., 44th Parl., 2021 (first reading 2 December 2021).

[155] Courts have also weighed in on the issue. In R. v. Conception, 2014 SCC 60, [2014] 3 S.C.R. 82, the Supreme Court of Canada observed, at para. 77:

Mentally disordered patients do not typically fare well as inmates. They are frequently victims of intimidation and violence and are more likely than the general prison population to attempt suicide, self-harm, or self-destructive behaviour. An experienced correctional officer testified in this case that the mental health care needs of mentally ill accused persons in provincial jail are frequently neglected due to lack of special units and trained personnel. Fewer than one-third of Ontario provincial jails have special units for inmates with mental illness or developmental disability. Where there is no special unit, or where the unit is full, mentally ill accused persons are typically held in segregation cells. [Footnotes omitted.]

[156] It is not my role to conduct an inquiry into the treatment of mentally ill offenders in the correctional system, and I do not propose to do so. This case engages systemic issues, but they are only relevant insofar as the bear on the circumstances of Mr. Warren. I see Mr. Warren’s case as being relatively distinct, given the nature of his challenges, and the fact that he faces an indeterminate penalty. It is the combination of those factors that generates the constitutional concern, viewed against the backdrop of Mr. Warren’s past experiences in the correctional system.

[157] The federal Crown argues that there is nothing unique about Mr. Warren. It is said that he is representative of many dangerous offenders, and that courts, in the past, have declined to find violations of s. 12 of the Charter. I have no statistical information about the characteristics of federal inmates, and therefore am not in a position to comment on how unusual Mr. Warren’s issues may be. It is true that there have been a few reported cases in which similar concerns have been expressed. Courts have not issued remedial orders in those cases, perhaps because they were not requested. The Charter remedy advanced in this case is, admittedly, rather novel. However, I am not concerned with the general population of the correctional system or even other dangerous offenders. I am concerned only with the circumstances affecting Mr. Warren. I have to believe that, while others may share some of his challenges, Mr. Warren’s cognitive limitations, and other difficulties, may distinguish him from the more typical inmate, if there is such a thing.

[158] If I am wrong, and Mr. Warren is representative of many individuals in federal custody, that is not, to my mind, a persuasive answer to the problem. If others are experiencing similar Charter infringements – if this is a widespread systemic problem – that arguably bolsters the case for judicial intervention. To be clear, it is not my role to conduct an inquiry into CSC operations at large, or to consider the treatment of anyone other than Mr. Warren. The point is simply this. Mr. Warren’s highly complex needs might distinguish him from many, though not all, other inmates. If I am wrong, the fact that other inmates are in the same position vis-à-vis CSC does not, on any estimation, excuse conduct that amounts to a constitutional violation.

[159] The Crown points to authorities in which courts have recognized deficiencies in treatment available for certain offenders but have declined to grant a remedy. In R. v C.P.S., 2006 SKCA 78, 285 Sask. R. 35, the offender bore some similarity to Mr. Warren, as it relates to specialized needs. As Jackson J.A. explained, at para. 38:

There is no doubt that Mr. (C.P.S.]’s situation is tragic. In his most recent report, Dr. Nicholaichuk indicated that Mr. [C.P.S.]’s cognitive development was estimated to be at the level of a seven to nine year old. He recommended as follows:

As was noted above, continuation of the past management strategy is not likely to be successful in Mr. [C.P.S.]'s case. Ideally, he should be treated in a manner more consistent with a mental health as opposed to a correctional perspective. Staff need to be aware that he is cognitively impaired. It is too easy to assume that because he does not look unusual, his abilities are intact. They are not. Staff working with Mr. [C.P.S.] will have to take care to not react to his outbursts as intense, negative reactions on the part of staff, exacerbate the problem. Over the short term, efforts will have to be made to provide Mr. [C.P.S.] with a supportive, predictable and stable environment in which exposure to unusual stressors are limited as much as possible. Employment and occupational therapy will be more relevant than active correctional programming which he will have trouble understanding and retaining. If there is to be any prospect of release, it will depend upon careful discharge planning rather than upon treatment. In order to function in the community, Mr. [C.P.S.] needs a place to live, effective supports and long-term supervision. If these things are not put in place, particularly in light of his current designation as a dangerous offender, it is very likely that he will die in prison.

[Footnotes omitted; emphasis in original.]

[160] Continuing at paras. 38-39, Jackson J.A. observed that there is little the court could do other than to draw the need for treatment to the attention of the authorities:

[38] … As Dr. Adelugba said, his clinical condition has come to his lot not by his choice, and urged that mental health systems ensure Mr. [C.P.S.] receives appropriate treatment. We urge the same.

[39] There is little the Court can do to assist Mr. [C.P.S.] other than to draw these comments to the authorities. As has been previously written in these reasons, an appellate court's role is limited. Having regard for this limited role, we find that the sentencing judge's determination regarding control of risk to be a reasonable one. She determined, and we have sustained her determination, that there is no reasonable possibility for eventual control in the community by means of the long term offender provisions, in the absence of any demonstrated continuous period of stability in his life or the creation of an appropriate facility that could meet his needs.

[Footnotes omitted; emphasis added.]

[161] In R. v. Bishop, 1993 ABCA 274, 145 A.R. 222, the trial judge found that the type of psychiatric treatment the accused would require if he was to have any chance of recovery was not presently available in the federal correctional system but was potentially available in a hospital. On this basis, the accused argued that a dangerous offender designation violated s. 12 of the Charter as he was likely to serve life in prison without adequate treatment. The Alberta Court of Appeal dismissed these arguments as premature, as set out in the passages below:

[4] At the time of sentencing there was legislation in place pursuant to the Penitentiary Service Regulations that would have allowed the Commissioner, so far as practicable to make available to each inmate who is capable of benefitting therefrom, psychiatric, psychological and social counselling.

[6] Thus the law is broad enough to encompass the type of treatment that may be required for a dangerous offender. The accused's argument is that while the law is broad enough, the fact is that treatment was non-existent as at the date of sentencing. Therefore, he says, at the time the sentence was passed it was an illegal sentence because it was an indeterminate sentence simpliciter.

[7] We do not agree with the argument of the appellant and are of the opinion that any application with respect to cruel and unusual punishment regarding this prisoner is premature.

[8] We are satisfied that the law does provide, and did at the time of sentencing provide, adequate protection on its face. Moreover it is important to note that in Lyons, La Forest, J. was concerned about an indeterminate sentence simpliciter because it could result in sentences grossly disproportionate to what individual offenders deserve. Obviously that cannot be determined until some later time. It may be that at some later time, if the treatment has not been made reasonably available to this prisoner, it could be argued that his sentence has become disproportionate. That will become a fact based application at that time.

[Emphasis in original.]

[162] The Alberta Court of Appeal also considered this issue in R. v. Blackplume, 2021 ABCA 2. In Blackplume, the following was said about the offender’s prior experiences in custody:

[11] As a result of her convictions, Ms Blackplume has spent almost 12 years in institutions with notable periods in segregation, isolation or observation because of anxiety, depressed mood or suicidal ideation, gestures, threats or attempts, and because she has been assaultive or sexually inappropriate with other inmates, or found trafficking her own stockpiled medications. She has been threatened because of the nature of her charges, debts owed to gang members, and her appearance as a transgendered person.

[12] As described by the sentencing judge, Ms Blackplume’s response to treatment has been “abysmal”. Almost all of Ms Blackplume’s therapy can be classified as cognitive behavioural therapy. According to reports and expert witnesses who testified at the dangerous offender hearing, therapy of this kind is largely ineffective for persons who, like Ms Blackplume, suffer from organic cognitive limitations. Ms Blackplume spent about 15 months in a high intensity sex offender treatment program designed to accommodate offenders with cognitive limitations, but did not make clear therapeutic gains. She has also participated in music therapy and recreational programs, which might have indirect positive effects but are not known to reduce risk of violent recidivism. Such programs are not available in prison.

[163] The Alberta Court of Appeal described the decision of the sentencing judge in Blackplume as follows:

[17] Based on these factors, the sentencing judge concluded that an indeterminate sentence would amount to a life sentence for Ms Blackplume. She concluded her section 12 analysis with the following comment at para 52:

[T]his Court could not be a party to the societal shrug that continues to be the response to dangerous federal inmates, often indigenous, who suffer from extreme cognitive deficits and FASD. And, accordingly, I found a breach of Ms Blackplume’s s. 12 right.

[18] The sentencing judge then addressed proportionality. To achieve a proportionate sentence in Ms Blackplume’s circumstances, the sentencing judge was of the view that public protection must be balanced with Charter relief that gives Correctional Service of Canada an incentive to develop humane housing and treatment inside the penitentiary and in the community for dangerous yet vulnerable offenders. She cited a finding by the British Columbia Court of Appeal in R v Goodwin, 2002 BCCA 513 that the low cognitive abilities of the dangerous offender reduced his moral culpability and rendered indefinite incarceration disproportionate. She concluded that Ms Blackplume’s moral blameworthiness is reduced by her cognitive impairment and Gladue factors, thus rendering indefinite incarceration disproportionate in light of the prison conditions she would face.

[164] In other words, the sentencing judge, while finding that Ms. Blackplume met the statutory test for designation as a dangerous offender, declined to make the designation on the basis that it would breach s. 12 of the Charter. This was tantamount to a constitutional exemption from the dangerous offender scheme. What was seen to be problematic by the Alberta Court of Appeal was the release of an offender who had been shown to pose a significant risk of danger to the public. The errors were described as follows:

[37] The sentencing judge erred in finding a breach of section 12 of the Charter and in awarding a remedy on the basis of Ms Blackplume’s individual circumstances.

[38] Beyond Ms Blackplume’s circumstances, the sentencing judge explained that she reduced the sentence as an incentive to the Correctional Service of Canada to develop “humane housing and treatment” and “humane secure facilities”: Blackplume at paras 55, 67. This rationale does not relate to proportionality or any other sentencing objective and was therefore an irrelevant factor. The sentencing judge erred in relying on it.

[39] Appropriately, the sentencing judge did not order the Correctional Service of Canada or any other agency to create programs or to improve carceral conditions as she had no authority to do so. No relevant agency was a party before the court. If made in the sentencing context, on this record and with these parties, an order to create programs or to improve conditions could arguably constitute judicial intrusion on the authority of the legislative or executive branches of government. In CPS, the Saskatchewan Court of Appeal noted there were no treatment options or facilities with a stable, predictable and supportive environment sufficient to meet Mr. CPS’s needs, nor would there be any in the foreseeable future. Nonetheless, it properly stated at paragraph 39, “There is little the Court can do to assist Mr. [CPS] other than to draw these comments to the authorities.”

[40] Here, there appears to be nothing “the authorities” could do to implement treatment programs that would assist Ms Blackplume. The uniform evidence below was that no such programs exist, either in custodial or non-custodial settings, for intrinsic reasons beyond the control of the Correctional Service. Thus, the sentencing judge’s apparent desire to motivate change was misplaced on a factual level. It raises concerns at a systemic level as well. It is appropriate for judges to remain informed and alert to social conditions and potential injustice, but in making decisions judges must adhere to the boundaries set by Parliament, binding authority, and the role of the judiciary. To do otherwise risks undermining the rule of law.

[165] The Crown relies on Bishop and Blackplume as foreclosing constitutional relief in this case. While not technically binding, these decisions are obviously of persuasive authority. However, I find that Bishop is distinguishable on the basis that there was no historical record of treatment to indicate that his needs would not likely be met. Such a record is available for Mr. Warren.

[166] As it relates to Blackplume, I note that the remedy proposed for Mr. Warren is very different than that offered to Ms. Blackplume. Mr. Warren is not being exempted from the statutory scheme. He is not exempt from a dangerous offender designation, nor the indeterminate penalty that followed such designation. The decision in this case does not sacrifice public safety in the hopes of encouraging more humane treatment by CSC. Nor does it force the creation of new programs or changes to the correctional system. The remedy is one that is expressly contemplated by statute – namely the transfer of an inmate to a provincial hospital. That particular remedy was not considered by the sentencing judge in Blackplume or, for that matter, C.P.S.

[167] I note that Blackplume and C.P.S. predate the decision of the Supreme Court in Bissonnette. Bissonnette is a critical building block in the constitutional edifice of this case. It is Bissonnette that establishes the need to ensure that the hope of release is not extinguished by the state. The hope of release may never be realized, and a person sentenced to an indeterminate penalty may well spend the rest of their life in prison. However, this must not be because the state, as the offender’s custodian, has left them to languish. Therein lies the constitutional imperative.

[168] Particularly in light of Bissonnette, I am not convinced that the answer to the problem is to blithely accept that there is no treatment available for those dangerous offenders who have specialized needs. It is true that, in some cases, judges have bemoaned the lack of proper supports and interventions but ultimately deemed it an unfortunate systemic reality. It is unfortunate, and it is systemic, but I question whether it must be the reality. Within a constitutional democracy, neither the courts nor the broader community should be forced to resign themselves to systemic deficiencies that breach Charter rights. Those who are designated dangerous offenders lose their liberty, but do not lose their constitutional entitlements.

[169] Moreover, while judicial oversight of corrections is still a relatively rare phenomenon in Canada, it is commonplace in other jurisdictions, including the United States. Judicial supervision orders have been used to great effect by American courts and have been identified as the key factor leading to large scale prison reform in the United States: see Malcolm M. Feeney & Edward L. Rubin, Judicial Policy Making and the Modern State: How the Courts Reformed American Prisons (New York: Cambridge University Press, 1998).

[170] To be sure, there are clear limitations on a Canadian court’s jurisdiction to intervene in the administration of a government institution. Where a Charter remedy implicates the operations of a state institution, such as a penitentiary, the remedy must offer the flexibility necessary to allow the institution to choose how to achieve the constitutional objective. But the state is responsible for the humane treatment of offenders and is bound as much by the constitution as it is by statute.

Has the correctional system changed?

[171] One of the primary arguments advanced by CSC is that things have changed and that, with those changes, there is every expectation that Mr. Warren’s needs can be met within CSC facilities. Counsel relies on the testimony of various individuals, including Belinda Roscoe, executive director of Regional Treatment Centres. Ms. Roscoe testified that RTC units are recognized scheduled hospitals, as effective in providing treatment as provincial hospitals. Ms. Roscoe gave extensive evidence about the steps that have been taken to improve mental health services since Dr. Bradford’s 2017 report identified serious deficiencies, though she also testified that she was initially not aware of the report.

[172] Ms. Roscoe’s testimony focused on the adequacy and sufficiency of CSC mental health services delivery models to meet Mr. Warren’s complex needs. During her testimony, Ms. Roscoe acknowledged that Mr. Warren was often held in segregation during his federal sentences when he was not in the RTC. Ms. Roscoe also acknowledged that the clinical treatment that a dangerous offender receives from CSC can play a big role in whether they are ever released on parole. She nevertheless maintained that Mr. Warren’s needs would be met this time around because now there are more resources available for programming.

[173] Ms. Roscoe confidently testified that the RTC can provide the same services as any forensic hospital because it is a “scheduled facility” designated by the provincial Ministry of Health to treat patients under the Mental Health Act, R.S.O. 1990, c. M.7. When Mr. Warren’s treatment history within the correctional system was reviewed with Ms. Roscoe, including the lack of successful engagement and his prolonged segregation, she answered that segregation was abolished now and that the RTC had more resources for programming. However, her testimony lacked any real particularity about the kind of programming or treatment approach that would be available for Mr. Warren.

[174] Ms. Roscoe indicated in her testimony that treatment and care for inmates can be individualized at the RTC, but she also testified that the main goal for treatment is to help the individual stabilize so they can “effectively manage within the institution”. She acknowledged that the goal of care and treatment at the RTC is to prepare individuals to return to their parent correctional institution, “to be compliant with the rules and all that kind of stuff.” With respect to individuals who have prolonged stays in segregation, now re-framed as “structured intervention units” or SIUs, Ms. Roscoe testified that such individuals have “chosen to be there because they don’t want to integrate”.

[175] Ms. Roscoe’s evidence tended in large part to confirm Dr. Bradford’s evidence that care and treatment in RTCs tend to be much more about behavioural control than individualized patient-centred care.

[176] A general theme across the testimony of CSC witnesses was that Mr. Warren and other inmates can simply choose to refuse any form of treatment or programming; essentially Mr. Warren’s previous lack of engagement with programming was largely his fault. Ms. Brigitte Penthor, the acting Associate Director of Management Service, emphasized that any offender “has the right to refuse programming at any time”, and while CSC may offer program options repeatedly, “at the end of the day if he’s not willing to participate then that is his choice.” When it was put to Ms. Penthor that Mr. Warren may refuse programming because of his low IQ and psychiatric diagnoses, and as a result be “stuck” repeatedly being denied parole reviews, Ms. Penthor candidly acknowledged, “[t]o be fair that is possible.” She also appeared to acknowledge that there was little hope for tailored programming for someone like Mr. Warren.

[177] This seemed to contrast with the approach that would be expected in a psychiatric hospital. Dr. Bradford testified that there is an obligation to work hard to engage people in treatment, which is an ethical approach to delivering mental health care. He emphasized this was particularly the case for those with special needs:

One of the easiest things in the world is to dismiss somebody with a personality disorder, and if they have a personality disorder and low IQ that they do not engage in treatment and therefore it is all of their fault and, you know, really abandon them or – or whatever else. I would say there is an obligation from mental health professionals, especially with a special population, to work hard to engage them and to get them to – to trust you.

[178] In cross-examination, Ms. Roscoe acknowledged deficiencies in CSC health care infrastructure, but pointed to improvements that are being made, notably since the passage of Bill C-83, An Act to amend the Corrections and Conditional Release Act and another Act, S.C. 2019, c. 27. She tied many of these improvements to delivery of an individualized treatment plan for someone like Mr. Warren. Ms. Roscoe also explained several relevant CSC procedures, including with respect to the contentious formulary procedure. She also disputed Dr. Bradford’s assertion that the nurse-to-bed or psychiatrist-to-bed ratios at RTCs were below provincial hospital standards.

[179] Ms. Roscoe testified that CSC provides services along a continuum of care that is responsive to the specific level of care required by a particular inmate. Through interdisciplinary health care teams and other resources, CSC can address the need for intensive, prolonged, and individualized treatment and programming. However, as became apparent in cross-examination, this is conditional on Mr. Warren engaging voluntarily with his treatment plan.

[180] Dr. Bradford acknowledged that there have been improvements since his study was carried out in 2017, specifically a substantial improvement in coverage and staff-to-patient ratios. But there is no indication that other problems have abated.

[181] The Crown argues that Dr. Bradford’s evidence is stale. His report on health care services in CSC was based on data from years ago, and he has not since conducted reviews of the correctional system. Various witnesses testified that CSC has implemented new strategies to improve its level of care, including care for mental health issues. While I heard much testimony about changes to the CSC model of health care, this does not displace the concern about the treatment of Mr. Warren. I say this for the following reasons.

[182] First, while there have apparently been changes, the fact remains that the correctional system is, by necessity, focused more on security and management of the population, rather than meaningful treatment. Hospitals are different as it relates to, among other things, infrastructure, physical setting, numbers of medically trained staff, treatment models and objectives.

[183] Second, I have received extensive evidence about what can be done to assist Mr. Warren, but no evidence about what will be done. It is of course for correctional officials to conduct their own assessments of offenders for classification purposes. It is for correctional officials to determine who will get one of the limited beds available in RTC, and for how long. However, that is the point. There is no indication of what correctional decisions will be made for Mr. Warren.

[184] Similarly, I was not presented any examples or case histories documenting treatment of persons similarly situated to Mr. Warren. There was no evidence evaluating the scope and quality of the changes reported. Perhaps it is too soon to expect a qualitative study to be done. However, it remains the case that I was told about things that could be done, but there is no evidence that they ever have been done. There is a hypothetical or theoretical quality to the testimony of CSC officials. I accept that there are improvements in the standard of care, but I have no indication of what that will mean, in practical terms, for Mr. Warren. For example, Mr. Warren’s vulnerabilities will continue to limit his integration into general population. While there are statutory limitations on the time that can be spent in structured intervention units, Mr. Warren may continue to find himself in conditions of isolation for his own protection. His acting out is also likely to result in a continual amassing of disciplinary charges.

[185] Moreover, even if the treatment prescribed for Mr. Warren is available within the correctional system, it falls to correctional officials to decide who receives the benefit of these limited resources. As a person serving an indeterminate sentence, Mr. Warren is not a priority. CSC gives programming priority to those individuals who are going to be released into the community, to assist those individuals with re-integration. That makes good sense. However, it follows that those in the dangerous offender stream are in a catch-22 scenario. They will only receive programming if there is a prospect of their release. There will only ever be a prospect of their release if they receive programming.

[186] I do not doubt the good will of those who testified, or CSC’s positive intentions to improve conditions of incarceration for those experiencing mental health challenges. But if past behaviour is the best predictor of future behaviour, Mr. Warren’s prospects look rather dim. His correctional and treatment plans have been inadequate to date, and I have been given no assurance that this will change. Nor, for reasons I will address in due course, do I have any confidence that a recommendation by the court would be actively implemented.

Should We ‘Wait and See’?

[187] The Crown’s other argument is, in essence, a plea to ‘wait and see’. It is said that Mr. Warren’s rights have not yet been breached. If they are breached in the future, Mr. Warren can bring a habeas corpus application before the Superior Court of Justice or can seek judicial review of a correctional decision in the Federal Court.

[188] This is not a desirable approach. First, there are probable grounds to believe that Mr. Warren’s rights will be infringed if he is detained in federal custody. This is the basis for a finding of an anticipatory breach. The point of this finding is to obviate the need for Mr. Warren to re-experience the Charter infringements of the past, and to pro-actively prevent such infringements from recurring in the future. This is not a case like Bishop or R. v. Daniels, 2011 SKCA 67, 375 Sask. R. 1, leave to appeal dismissed, 2012 CanLII 16378 (S.C.C.), in which the offender had not yet experienced the breach and there was no basis for forecasting a future breach. This is not a case in which the prospect of Charter breaches is rooted in speculation and conjecture. It is firmly rooted in the evidence.

[189] There is, accordingly, no good reason to wait and see. To do so is to potentially expose Mr. Warren to further incarceration without meaningful programming or interventions, with the prospect of extensive time in structure intervention units, or other forms of segregated custody.

[190] There is also the issue of judicial economy. Much evidence was called during this hearing about the conditions within the correctional system and the contrasting conditions within a provincial psychiatric hospital. The Court received voluminous evidence about Mr. Warren’s history, his diagnoses, risk assessments, and special needs. All of this is relevant to the analysis of the Charter issues. There is no good reason to require duplication of this evidence in the context of a new proceeding; nor is it likely that such extensive evidence would be recalled.

[191] Finally, it would be unfair and unrealistic to expect Mr. Warren to launch and steer new proceedings in the event of a Charter violation. The challenges that prevent him from benefiting from traditional programming are the same challenges that would prevent him from being able to effectively represent his own interests or launch a new proceeding.

[192] In short, I see no merit in requiring Mr. Warren to serve a further term of what is likely to unconstitutional incarceration, only to then place the burden on him to bring the Charter application for a breach that is already anticipated to occur before another reviewing court.

Should the court simply make a recommendation to correctional authorities?

[193] Judges often make recommendations about the nature and conditions of incarceration. These recommendations are usually based on evidence about the offender’s needs, and the conditions that will best facilitate effective treatment and programming. The court that has tried and/or sentenced an offender may have good reason to believe that the offender should be in a particular type of environment. These recommendations are not binding.

[194] Judges who make recommendations do so without awareness of operational constraints. Correctional officials conduct their own assessment of inmates for classification purposes. A judicial recommendation that an offender be housed in a particular institution may not be operationally feasible. Yet, there is no feedback loop to ensure accountability. Sentencing judges receive no information about whether recommendations have been implemented. Correctional officials are free to ignore judicial recommendations without offering any reason or explanation for doing so.

[195] Nor does the Parole Board have any jurisdiction to direct treatment or programming for an offender. If parole is granted, the Parole Board may impose terms and conditions that are seen to be reasonable and necessary. However, if the Parole Board denies release, it has no jurisdiction to direct CSC to take any steps or action toward treatment or placement of the offender. The Parole Board’s paramount concern is the protection of the community. Therefore, the Parole Board must deny parole where there is a risk of re-offending, even if it is of the view that the offender is not receiving proper treatment.

[196] As it was held in Stoddart v. National Parole Board, 2004 FC 1350, at para. 16, “the responsibility for case management rests with the CSC” and the Parole Board is not empowered to go beyond the question of whether a particular offender meets the relevant criteria for release. Similarly, in Collier v. Canada (Attorney General), 2006 FC 728, the Federal Court confirmed that the Parole Board does not have jurisdiction to direct CSC to offer certain programming to an offender. As noted at para. 46, the Parole Board can only make recommendations, and “does not have jurisdiction over an inmate’s correctional plan”.

[197] This troubles me as it relates to Mr. Warren. I am concerned about the conditions of his confinement, and their impact on his constitutional rights. Yet, if I merely make a recommendation, I have no confidence that it will be implemented, or even be given serious consideration. The testimony of Ms. Roscoe left the clear impression that judges’ recommendations are devalued; that they are perceived as coming from people who do not understand the realities of the correctional setting. The evidence left the distinct impression that neither judicial recommendations, nor judges’ reasons for sentence, are given much weight in arriving at institutional decisions.

[198] Given the impotence of judicial recommendations, there will be cases in which judges must make orders to ensure constitutional compliance. I do not suggest that the courts take over operational decision-making, but the courts have a role to play in ensuring that the most basic human entitlements are honoured, including the constitutional rights to which all individuals – including those who are incarcerated – are guaranteed.

Can Mr. Warren be transferred to a provincial hospital?

[199] The Crown argues that there is no authority to transfer Mr. Warren to a provincial hospital. The amicus disagrees.

[200] The idea of inmates being transferred to hospitals is not unprecedented. The United Kingdom has a statutory regime for hospital orders under the Mental Health Act 1983 (U.K): see also, for example, R. v. Nelson, [2020] EWCA Crim. 1615; R. v. Edwards, [2018] EWCA Crim. 595; and R. v. Vowles, [2015] EWCA Crim. 45. Within Canada, the idea has historical roots dating back to an early report of the Law Reform Commission of Canada, as Aman S. Patel noted in “Landing in the Cuckoo’s Nest: The Hospital Disposition of Guilty Mentally Ill Offenders – Lessons from the United Kingdom” (2002) 39:4 Alta. L. Rev. 810, at pp. 815-6:

Our courts presently rely on correctional authorities to provide post-sentencing services relating to the mental health of an offender. Such a reliance is tenuous. It fails to consider that even in light of a court recommendation, it is ultimately up to correctional authorities to decide if any realistic treatment will be given. Indeed, the reference by a court to treatment in a prison setting "always raises expectations, and those expectations for good reasons are frequently disappointed.

A partial solution to such sentencing conundrums was proposed by the Law Reform Commission of Canada. In 1976 the Commission proposed a criminal justice-mental heath disposition, recognizing that judges were powerless to order that “[the] term of imprisonment be [served] … in a psychiatric facility,” transfers from prisons to mental hospitals were rare, recommendations by judges for psychiatric treatment were often not followed, and the "sparse facilities for psychiatric treatment in prisons" meant that prisoners suffering from serious mental illness were “detained without the prospect of treatment.” The Commission recommended that “judges be given the power to order that a term of imprisonment be spent in whole or in part in a psychiatric facility” by way of a “hospital order,” and further recognized that the United Kingdom has had similar provisions since 1959. Subsequently, in 1976, the Commission repeated its call for the “hospital order” to be included in the range of sentences available to a court and for Parliament to implement legislation.

[201] While the legislation recommended by the Law Reform Commission of Canada was not enacted, the CCRA does contemplate hospital transfers. Section 16 of the CCRA allows for exchange of service agreements between CSC and provincial hospitals, allowing for such transfers to take place. Section 29 of the CCRA specifically provides for a transfer of an inmate to a hospital by the Commissioner in accordance with such an agreement. Ginette Clarke, Director General, Health Policy and Programs, for CSC testified at the hearing. She is responsible for developing policies programs and initiatives that ensure that CSC is providing effective, timely, quality health services. According to Ms. Clarke, there is only agreement in place at the present time, which allows for transfer of patients to the Institut national de psychiatrie légale Philippe-Pinel in Quebec. This is a long-standing agreement that provides 15 beds for CSC. Within Ontario, an agreement between CSC and the Royal Ottawa Healthcare group came into being in 2014. The agreement guaranteed access to two beds for female offenders at the Brockville Mental Health Centre. However, following a major security incident no further patients were admitted to Brockville and the agreement came to an end. Efforts to enter into new agreements have been unsuccessful, largely because of security concerns, the difficulty of treating patients who are not actively engaged, and the demands that such hospitals face with their own obligations to patients.

[202] It has been recommended by the Office of the Correctional Investigator in the past that more of these agreements should be pursued, with CSC increasing their efforts to establish alternatives for mental health care.

[203] It would seem that, quite apart from s. 16(1)(a) of the CCRA, CSC can facilitate “one-off” exchange of service agreements (there is nothing in s. 16 that sets out the parameters for what these agreements can or cannot look like). Ms. Roscoe testified in cross-examination that she had never seen a one-off agreement before but she did not state that s. 16 precludes one-off transfers. Indeed, there was evidence to indicate that offenders may be released to a psychiatric hospital just prior to their release into the community in the absence of an agreement. Ms. Roscoe testified that that can be done, but is not done because the standard of care is sufficient within CSC facilities.

[204] There was also evidence that CSC has made such arrangements in the past. Dr. Bradford testified about informal and formal agreements that saw the transfer of federal offenders to the provincial psychiatric correctional facility, St. Lawrence Valley Correctional and Treatment Centre.

[205] Even if CSC would not be at liberty to transfer Mr. Warren on its own authority, it is arguably open to the Court to direct such a transfer under s. 24(1) of the Charter. I will turn to that remedial provision now.

REMEDY

[206] I have found, on the basis of the above, that Mr. Warren’s rights are likely to be violated should he be sentenced to serve his indeterminate sentence within the correctional system. I have found that CSC facilities have, in the past, failed to offer treatment and/or programming suited to Mr. Warren’s needs, and that he has spent much of his time in segregated custody, with little to no meaningful human interaction. I have found, on the basis of the evidence, that Mr. Warren is most likely to receive the assistance he requires in the context of a psychiatric hospital, rather than a penitentiary.

[207] This then begs the question of what a proper remedy is to address the anticipated breach of Mr. Warren’s rights under s.12 of the Charter. The language of s. 24(1) of the Charter has been recognized to be of considerable breadth and flexibility. Section 24(1) is the provision that is best suited to address anticipatory or prospective breaches of Charter rights. In United States of America v. Kwok, 2001 SCC 18, [2001] 1 S.C.R. 532, at para. 66, the Supreme Court observed that:

Remedial action by the courts for future violations is not precluded as a matter of law despite the use of a past tense in the language of s. 24(1). In Operation Dismantle Inc. v. The Queen, this Court suggested that a remedy under s. 24(1) could be granted not only in the case of an actual interference with Charter rights but also to prevent probable future harms when an applicant can establish an apprehension of such interference at a future trial. R. v. Vermette, confirmed, at p. 992, that Charter remedies may be available in cases where an applicant can establish the threat of a future violation.

[Citations omitted.]

[208] One mechanism that can be implemented under s. 24(1) is a structural remedy that allows the Court to retain a supervisory role in ensuring Charter compliance. The seminal case on structural remedies is Doucet-Boudreau. In that case, the claimants asserted that their rights to French language education under s. 23 of the Charter had been delayed and neglected by the Nova Scotia government. The Supreme Court agreed that under the circumstances it was appropriate for the trial judge to order the provincial government to make “best efforts” to remedy the infringement and to retain jurisdiction to receive periodic reports regarding compliance. Writing for the majority, Iacobucci and Arbour JJ. observed, at para. 70, that the power to issue injunctions against the executive was “central” to s. 24(1), and the trial judge was not limited to making mere declarations of rights. It is the duty of the courts to fashion appropriate and just remedies to “ensure that rights are enforced, and not merely declared.”

[209] Iacobucci and Arbour JJ. also offered the following comments, at para. 24:

The requirement of a generous and expansive interpretive approach holds equally true for Charter remedies as for Charter rights. In Dunedin, McLachlin C.J., writing for the Court, explained why this is so. She stated, at para. 18:

[Section] 24(1), like all Charter provisions, commands a broad and purposive interpretation. This section forms a vital part of the Charter, and must be construed generously, in a manner that best ensures the attainment of its objects . . . . Moreover, it is remedial, and hence benefits from the general rule of statutory interpretation that accords remedial statutes a “large and liberal” interpretation . . . . Finally, and most importantly, the language of this provision appears to confer the widest possible discretion on a court to craft remedies for violations

of Charter rights. In Mills, McIntyre J. observed at p. 965 that “[i]t is difficult to imagine language which could give the court a wider and less fettered discretion”. This broad remedial mandate for s. 24(1) should not be frustrated by a “(n)arrow and technical” reading of the provision . . . . [Reference omitted.]

[Citations omitted.]

[210] I accept that supervisory remedies are not common and should generally be seen as tools of last resort. Courts should not unduly encroach on areas that are the responsibility of public administration and should not turn themselves into managers of the public service. That said, constitutional guarantees must be construed generously, as must constitutional remedies.

[211] The supervisory role of the courts was described in Doucet-Boudreau, as follows:

71 Although it may not be common in the context of Charter remedies, the reporting order issued by LeBlanc J. was judicial in the sense that it called on the functions and powers known to courts. In several different contexts, courts order remedies that involve their continuing involvement in the relations between the parties. Superior courts, which under the Judicature Acts possess the powers of common law courts and courts of equity, have “assumed active and even managerial roles in the exercise of their traditional equitable powers”. A panoply of equitable remedies are now available to courts in support of the litigation process and the final adjudication of disputes. For example, prejudgment remedies developed in such cases as Mareva Compania Naviera S.A. v. International Bulkcarriers S.A., and Anton Piller KG v. Manufacturing Processes Ltd., involve the court in the preservation of evidence and the management of parties’ assets prior to trial. In bankruptcy and receivership matters, courts may be called on to supervise fairly complex and ongoing commercial transactions relating to debtors’ assets. Court-appointed receivers may report to and seek guidance from the courts and in some cases must seek the permission of the courts before disposing of property. Similarly, the courts’ jurisdiction in respect of trusts and estates may sometimes entail detailed and continuing supervision and support of their administration. Courts may also retain an ongoing jurisdiction in family law cases to order alterations in maintenance payments or parenting arrangements as circumstances change. Finally, this Court has in the past remained seized of a matter so as to facilitate the implementation of constitutional language rights. Lower courts have also retained jurisdiction in s. 23 cases.

72 The difficulties of ongoing supervision of parties by the courts have sometimes been advanced as a reason that orders for specific performance and mandatory injunctions should not be awarded. Nonetheless, courts of equity have long accepted and overcome this difficulty of supervision where the situations demanded such remedies.

73 As academic commentators have pointed out, the range of remedial orders available to courts in civil proceedings demonstrates that constitutional remedies involving some degree of ongoing supervision do not represent a radical break with the past practices of courts. The change announced by s. 24 of the Charter is that the flexibility inherent in an equitable remedial jurisdiction may be applied to orders addressed to government to vindicate constitutionally entrenched rights.

[Citations omitted.]

[212] And Iacobucci and Arbour JJ. stated, at para. 59:

Finally, it must be remembered that s. 24 is part of a constitutional scheme for the vindication of fundamental rights and freedoms enshrined in the Charter. As such, s. 24, because of its broad language and the myriad of roles it may play in cases, should be allowed to evolve to meet the challenges and circumstances of those cases. That evolution may require novel and creative features when compared to traditional and historical remedial practice because tradition and history cannot be barriers to what reasoned and compelling notions of appropriate and just remedies demand. In short, the judicial approach to remedies must remain flexible and responsive to the needs of a given case.

[213] It seems to me that this is one of the rare cases in which a novel and creative remedy is appropriate in order to be responsive to the needs of this case. A declaration can only vindicate Mr. Warren’s rights to a limited degree. A judicial recommendation to those responsible for Mr. Warren’s imprisonment may have no impact whatsoever. It runs counter to common sense to suggest that Mr. Warren should initiate new proceedings to challenge his treatment in custody if the anticipated breaches become reality. It would seem that the most effective means of ensuring that Mr. Warren’s constitutional rights are respected is to create a mechanism for accountability on the part of those who are responsible for his welfare.

[214] In a paper written extra-judicially by the Hon. Paul S. Rouleau and Linsey Sherman, the authors commented on the circumstances in which such supervision orders may be appropriate: see “Doucet-Boudreau, Dialogue and Judicial Activism: Tempest in a Teapot?” (2009) 41:2 Ottawa L. Rev. 171. The authors note, at pp. 197 and 206:

A review of the majority and dissenting opinions in Doucet-Boudreau, as well as other decisions and commentary, suggest several factors that may be relevant in determining whether continuing supervision will be appropriate. First, the facts of the case should demonstrate some degree of recalcitrance on the part of public bodies to comply with their constitutional obligations. Second, there should be some urgency in the need for the remedy, for example, where an applicant is in danger of suffering irreparable harm. Third, supervision may be appropriate where ensuring respect for a right will require a prolonged implementation process as opposed to a simple, discreet act such as releasing a prisoner or disclosing documents. However, the supervision process should be avoided when it risks becoming overly politicized. This will occur when there is substantial disagreement as to the manner in which a right should be respected or where the court would be called upon to supervise a leg­islative process. Finally, there exists a great deal of uncertainty as to whether such remedies will be limited to section 23 rights or can be applied to remedy violations of other Charter rights.

The practices in other common law jurisdictions, such as the United States, India and South Africa, suggest that supervisory orders may be applied to a myriad of constitutional rights and may be particularly appropriate where democratic institutions are not responding effectively to the needs of rights holders.

[215] I find that this is an appropriate case in which to maintain jurisdiction over the matter, and to extend judicial supervision over the treatment of Mr. Warren for a designated period of time. As with many issues, the devil is in the details. The implementation of a supervision order raises various questions. Who should report to the Court? What information should be made available to that individual? When should such reports be filed? How should the Court receive this information?

[216] These are issues that may have direct impact on the parties before the Court, including CSC. As to the extent that the reporting mechanism implicates other individuals or entities, they should be given the right to be heard on the matter. Therefore, while I am making an order under s. 24(1) in this ruling, the details of the supervision order will be determined at a later time, following the receipt of submissions from the parties and any third parties that should be given standing.

CONCLUSION

[217] For the reasons stated above, I find that Mr. Warren’s rights under s. 12 of the Charter will likely be infringed if he is required to serve an indeterminate penalty of imprisonment in the correctional system. I agree with the amicus that the anticipatory breach of s. 12 should be the subject of a constitutional remedy under s. 24(1) of the Charter. As a component of that remedy, I direct that CSC transfer Mr. Warren to a provincial hospital within 120 days of this order. I further direct that the Court, along with all parties to this hearing, be advised of the transfer when it occurs by way of written correspondence. Should the transfer not occur within the designated time period, the Court and all parties should be advised of that fact in written correspondence, at which time the Court may direct a further hearing on the issue.

[218] As it relates to a judicial supervision order, the parties shall have the opportunity to provide written submissions on the mechanism by which the Court should receive reports on Mr. Warren’s progress. The Court may direct a hearing on that issue if it is thought appropriate.

Renee M. Pomerance

Regional Senior