Court File and Parties

COURT FILE NO.: CR-20-100000197 DATE: 20240604 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: R v. Sanjay Francis, Respondent

BEFORE: S.F. Dunphy J.

COUNSEL: Mihael Cole, for the Crown Paul Lewandowski, Amicus Curiae Sanjay Francis, self-represented

HEARD at Toronto: November 9, 2023 and April 2-5, 2024

REASONS FOR DECISION – Dangerous Offender Sentencing

[1] Mr. Francis was convicted by a jury of a single count of criminal harassment under s. 264(2)(b) of the Criminal Code on January 16, 2023 and by myself sitting without a jury (in a hybrid proceeding with the same evidentiary record) of two further counts of failure to comply with the terms of a probation order (s. 733.1(1) of the Criminal Code) and failure to comply with the terms of a “no contact” order as part of a Long Term Supervision Order (s. 753.1(a) of the Criminal Code). [1]

[2] Pursuant to s. 753.01(1) of the Criminal Code, Dr. Klassen was appointed by me to provide an assessment of Mr. Francis on April 28, 2023. His report was provided to me on July 28, 2023 and November 9, 2023 was fixed as the first day of the sentencing hearing on which date the Crown presented Dr. Klassen’s evidence with the balance of the hearing scheduled for April 2, 2024. Mr. Francis chose not to participate in the assessment process with Dr. Klassen beyond providing a written brief and was represented by counsel at the examination of Dr. Klassen upon his report. There was no defence expert evidence submitted at this hearing.

[3] Prior to the commencement of the sentencing hearing on November 9, 2023, the Crown gave notice pursuant to s. 753.01(4) of its intention to apply for an indeterminate sentence or for an order that Mr. Francis be subject to a new period of long-term supervision in addition to any other sentence that may be imposed for the offences.

[4] At the opening of the resumed hearing on April 2, 2024, Mr. Francis advised me that he wished to discharge his lawyer and continue the hearing representing himself. After some discussion with Mr. Francis, his (now former) counsel Mr. Lewandowski, and without objection from the Crown, I discharged Mr. Lewandowski as defence counsel but appointed him to continue acting as amicus. I am grateful for the assistance that Mr. Lewandowski has been able to provide both in providing helpful assistance to the court generally and in assisting Mr. Francis in communicating that which he wished to communicate to me in an efficient manner.

[5] The facts of the index offences before me date back to 2017, shortly after Mr. Francis was released to a “half-way house” residential facility under the supervision restrictions made pursuant to a 10-year Long Term Supervision Order. That LTSO remains in place today (with approximately three years left to run on it [2]). Mr. Francis was charged with, among other things, criminal harassment of a former girlfriend and breaching the “no contact” provisions of the LTSO under which he was released within days of his release in July 2017 and has been in custody ever since.

[6] Mr. Francis did not testify at the sentencing hearing but presented his case orally and with the aid of a lengthy handwritten argument containing multiple attachments. Much of what he relayed orally or in the written submissions was more in the nature of evidence – some of which was in the record and some of which was not. I afforded Mr. Francis a significant degree of latitude in presenting his case as he saw fit – including references to matters not before me in the form of admissible evidence. I also heard Mr. Lewandowski as amicus and of course the Crown.

[7] For the reasons that follow, I have determined that an indeterminate sentence as requested by the Crown is necessary in these circumstances. There are two women whose lives have been substantially destroyed by Mr. Francis’ obsessions with them and they have both been victim of multiple serious personal injury offences at his hands. One has changed her name to seek to avoid contact with him while the other has entered the witness protection programme. The index offences, while being directed at one of them alone, is but the most recent in a series of serious personal injury offences committed by Mr. Francis against women in his life. There is no sign that he has made any strides to reducing the danger he poses to those two women or indeed any others whose acquaintance he might come to make in future if released into the community. Nothing less than an indeterminate sentence offers sufficient safeguards to bring the level of risk of further serious personal injury offences that Mr. Francis continues to pose to these women and the community in general within acceptable limits.

[8] After designating Mr. Francis a dangerous offender, Blouin J. was persuaded “by the thinnest of margins” on May 5, 2017 that the imposition of significant protection conditions and robust enforcement of a Long Term Supervision Order combined to create a reasonable expectation that a lesser sentence than indeterminate detention would adequately protect the community against the commission by Mr. Francis of a serious personal injury offence. The swiftness with which Mr. Francis moved to resume his prior patterns of harmful behaviour and violate the terms of his supervised release offer no reasonable basis to reach that conclusion again today. Mr. Francis has resisted any form of treatment for decades and the danger he poses both to the women he has previously been involved with and to any others that he may become involved with in future should he be released into the community is real and remains quite unmitigated. While I earnestly hope that he will take steps – and rapidly – to address the deep-seated issues that have so thoroughly derailed his life to this point, hope is not a plan and the protection of the public demands that the indeterminate sentence mandated by s. 753.01(5) must issue. Under such a sentence, the public can be protected while progress if any in treatment can be monitored and a controlled release plan put in place if and when circumstances justify it and not merely when the passage of time requires it.

Circumstances of the Offender and of Index Offences

[9] Mr. Francis’s history of entanglements with the law prior to the index offences tried before me is well summarized in two previous Ontario decisions: R. v. Francis 2017 ONSC 1505 before Akhthar J. in this Court and R. v. Francis 2017 ONCJ 313 before Blouin J. of the Ontario Court of Justice. I shall summarize the chronology of events leading to the trial before me here, but further details, including a lengthy Agreed Statement of Facts that was before Blouin J. in his sentencing hearing, are to be found in those two decisions.

[10] Mr. Francis was born in Canada in 1977 but emigrated to the United States as an infant and grew up there. His parents separated when he was about seven years of age and his points of contact with his father diminished considerably thereafter. Soon after this separation, there were a number of incidents where Mr. Francis lost his temper as a child. He cut all the extension cords in the house when he was 8. He reacted badly to not getting what he wanted, attacking his mother’s property (her car, her bedroom) and eventually his mother as he got older to the point of breaking her jaw and putting her in hospital on one occasion as a teen.

[11] He tested for having an above average IQ but had some difficulty finishing high school while his college studies in Rohde Island were interrupted by the felony assault charge involving a former girlfriend that sent him to jail for almost a year before a plea bargain resolution was reached. It does not appear that he has completed any post-secondary studies. His work history is difficult to assemble with any confidence from the record. He has had a number of jobs but few of any significant duration. He has tried working in the real estate sector, the banking sector, as a deckhand, and as a bouncer in a bar among other professions. His work history has been interrupted by, among other things, periods of incarceration almost all of which can be traced to his interactions with women who have come into his life.

Proceedings in the United States

[12] The Crown has assembled a significant body of records from United States authorities outlining Mr. Francis’ interactions with correctional authorities in that country as a juvenile and then later as an adult prior to his deportation to Canada on January 9, 2009. The themes that emerge strongly from this record are (i) frequent violent outbursts, primarily but not exclusively in the domestic sphere (his mother, a high-school classmate, eventually girlfriends or ex-girlfriends) such violence resulting in hospitalization in some cases and significant injuries suffered by the victims in others; (ii) a consistent failure to display any remorse; (iii) a consistent refusal to participate in treatment; and (iv) persistent refusal or failure to comply with probation or release terms including no-contact or similar protection orders.

[13] Some highlights of these records as they relate to his record as a juvenile:

a. Convictions for assaulting his mother in July 1992. He was referred for psychiatric treatment as a juvenile following an assault on his mother which broke her jaw but he refused to accept counselling or psychiatric treatment. Mr. Francis was sent to a juvenile institution for 1 year and a protection order in favour of his mother was entered. His records indicate a reported violation of the protection order in 1994 which his mother declined to pursue. They also indicate assessments of probation officers at this early stage that Mr. Francis expressed no remorse and posed a continuing danger to the family and to the community at large.

b. A conviction for assault with intent to injure in 1993 involving a high-school classmate whom he attacked from behind, punched in the face and beat with sufficient savagery to cause internal and external lacerations requiring 100 stitches and leaving nerve damage to four teeth. His sentence was for 30 days plus three years probation and psychiatric treatment which treatment he also declined to receive.

c. February 1995 convictions on three counts of burglary which he admitted committing and for which he expressed no remorse. The pre-sentence report noted his lack of any intention of cooperating with probation and his “significant psychiatric problems” for which is “is a serious threat to the community”. He received a one-year sentence.

[14] Exhibit 8 at his trial before me was a synthesis of Mr. Francis’ criminal record filed on consent. The portions relevant to Mr. Francis’ record in the United States are as follows (the first two entries apparently duplicative of para. (c) in the preceding paragraph and arising from his time as a juvenile):

[15] From my review of the United States records produced before me upon which the foregoing exhibit was based, some further details of the behaviour underlying the record described in Exhibit 8 can be distilled. While there have been some periods of comparative calm in the fourteen years between Mr. Francis attaining the age of majority (March 1995) and his deportation from the United States (January 2009), the records do justify the conclusion that Mr. Francis was in frequent if not continual conflict with the law and a significant component of that conflict arose from his relationship with women. Accounting for overlap and duplication in Exhibit 8, approximately four of the fourteen adult years Mr. Francis spent in the United States were spent in prison with a majority of the remaining time having been under terms of probation orders or protection orders granted in favour of his mother or in relation to romantic partners. There is certainly some degree of overlap between periods of probation, protection orders and periods of incarceration that I have not attempted to tease apart with more precision as I don’t think it impacts the overall view.

[16] Some further details of Mr. Francis’ conflicts with the law in the United States that emerge from these records are as follows:

a. In February 1997 he was contacted by probation officials for failing to comply with his parole conditions (failure to seek and follow treatment, to pay restitution money owed or to communicate his address). The forwarded United States records contain multiple examples of letters being sent to Mr. Francis noting various failures to attend appointments for intake or treatment or breach of other probation conditions (eg. failed urine test).

b. In 1997 he was arrested for sexual assault in Rhode Island. This charge was later reduced to felony assault. The complainant was a former girlfriend (“A.A.”). For this he pled guilty and ultimately received a sentence of six years allocated as follows: 10 months 26 days for time served plus the balance of the six year term suspended sentence plus probation.

c. Mr. Francis’ time in jail in Rhode Island in 1997 prior to sentencing resulted in three disciplinary proceedings for disobeying orders.

d. In July 1998, a clinic to which Mr. Francis was referred for treatment while on probation concluded that “his history of violent behaviour, poor attendance, plus his lack of motivation to identify and work on problems makes treatment ineffective”. This would appear to be the incident leading to the revocation of probation on August 31, 1998.

e. In October 1999 he received a sentence of 90 days for criminal contempt (failure to comply) involving Ms. Pinka and a further three-year protection order was made.

f. In July 2000, Mr. Francis was arrested on the complaint of Ms. Pinka for punching her in the head and torso and bending her finger backwards and violating a protection order. It is not clear what the disposition of this charge was.

g. In July 2001 Mr. Francis was arrested on the complaint of Ms. Pinka for mischief to property arising from an incident of him allegedly keying her car and for making threats to her at home and at work. It is not clear what the disposition of this charge was.

h. Protection orders were issued in favour of Krista Lastra in July 2003 and again in March 2004 in relation to allegations of stalking and harassment of the complainant;.

i. In 2006 Mr. Francis was arrested for violating a protection order by calling Ms. Pinka repeatedly, assaulting her resulting in a broken patella and for assaulting two arresting officers while resisting arrest. He received a sentence of one year in jail. Among the threats left by voicemail were threats to beat, burn alive and rape Ms. Pinka’s daughter and to put Ms. Pinka “six feet under”.

j. In 2008, Mr. Francis was arrested for criminal contempt arising from alleged violations of an outstanding protection order. These charges remain outstanding as Mr. Francis was deported prior to their resolution and no extradition has been sought.

[17] A number of the entries in Mr. Francis’ record from this era concern Ms. Alethea Pinka. Mr. Francis began a relationship with her in 1998. Overall, I conclude that it would be fair to characterize the relationship as being emotionally and physically abusive but punctuated with occasional periods of calm and undoubted strong emotions on the part of both. By way of overview only (and with some duplication vis-à-vis the convictions mentioned above) the following summary is derived from the United States records and the agreed statement of facts filed as Exhibit 1 in this trial:

a. There was an early break up that Mr. Francis would not accept and gave rise to threats.

b. Ms. Pinka had a young daughter and Mr. Francis periodically threatened to kidnap her, to rape her or to set her on fire.

c. Some threats to her came via Facebook and continued even after she blocked other accounts she believed to be operated by him.

d. There was an incident of assault by a punch to her face necessitating stitches.

e. There was an incident that she described as being held hostage by him for two days that left her with black eyes, bruises and a fractured knee.

f. She said that she had “a year of peace” when Mr. Francis was incarcerated in 2006 but then the threats and abuse began again “right where he left off” as soon as he was released.

g. She attributes incidents where sand was poured into the engine of her car, where her car was scratched or the tires slashed to Mr. Francis but is unable to prove it was he.

h. In a similar way, she attributes to Mr. Francis incidents where someone broke into her apartment after she moved to a friend’s house to evade contact with him and all of the pictures she had of her daughter were stolen.

i. Ms. Pinka changed employers, changed telephone numbers and changed her place of residence in an effort to escape him but Mr. Francis always managed to find her and harassed her mother and siblings in the process.

j. She sent her daughter out-of-state to live with relatives for some of this time.

k. There were incidents where she believed he set up fake advertisements on pornographic web sites naming her or some of the partners of her employer among other things and providing their phone numbers on line to customers of these sites.

l. There were several protection orders made against Mr. Francis in favour of Ms. Pinka and several proceedings charging Mr. Francis with violating them. He told her that a piece of paper would not stop him. On some occasions Ms. Pinka subsequently sought to have police drop charges or to withdraw protection orders although she said that her efforts to withdraw the last such protective order were the result of coercion and threats made by Mr. Francis.

[18] Mr. Francis denies that he had a hand in many of these incidents. While it is possible that some of the anonymous incidents of vandalism, bomb threats or malicious pornographic advertisements posts aimed at her or her employers were the work of unknown persons having nothing to do with Mr. Francis, the consistency of these anonymous actions with the known actions or threats of Mr. Francis directed at her is nevertheless notable.

[19] There has been no binding court determination of Mr. Francis’ responsibility for some of these incidents and I do not rely upon them here beyond their supporting role in accounting for the mental state of Ms. Pinka which arose from the totality of her relationship with Mr. Francis over more than a decade, both good and bad, what was proved in court that he did and what she believed that he did given the context of that relationship even if unproved.

[20] Mr. Francis was taken into custody by immigration officials in the United States, ordered removed in November 2008. The US Department of Homeland Security summarized his arrest record in the United States as follows: 15 total arrests including 9 violent felony arrests resulting in 7 convictions including 1 violent felony with 7 outstanding charges, 5 of which are for felonies. He was removed and deported to Canada on January 9, 2009.

[21] In January 2009, Mr. Francis left a series of threatening messages on Ms. Pinka’s answering machine after he was deported to Canada. The messages and a transcript of them were made exhibits at the sentencing hearing before me. In them, Mr. Francis boasted of his ability to get to Ms. Pinka at a time and place of his choosing:

a. He would “be there watchin’ … and you won’t even f***in know it";

b. He told her that he “can always find your phone number no matter what you change it to”, that “you can’t stop me”;

c. He would “use your f***in daughter to get to you”;

d. She would forget and “that’s when I’m gonna be watching and waiting”;

e. “the most important thing, I don’t even have to be around for it to happen…to you or your daughter”; and

f. She “can’t run and hide forever …there’ll be no place for you to run soon enough ‘cause I’ll be coming to see you real soon”.

[22] The threats to Ms. Pinka and her daughter were as detailed as they were gruesome:

a. The “sins of a mother is getting passed to the daughter” and “that little bch is done and you’re f*in done with her”;

b. “I’m gonna victimize your fin ass…you and that little fin b**ch of a daughter…”;

c. “don’t let [your daughter] become tired cause its either one of two things. It’s either gonna be nice and easy and quick, she’ll just get a fin bullet, or slow. She’ll get beaten and raped and burned fin alive … you’re gonna be beaten and raped and then burned f***in alive. You’re gonna suffer”;

d. “I’m gonna be watching and waiting, I’m gonna catch your ass … throw some gas on you, set it on fire, burn your f****in face” and that he had “two girls that are willing to do that and you don’t know who they are”; and

e. “I hope she gets fin beaten and fin raped and burned the f*** alive and I hope you get fin beaten and raped again, raped and raped…and after they fin rape you I hope they cut your fin face up and your fin fingers or hands off”…you best believe I’m gonna be there to fin see it cause I’m coming back over sooner than you fin think”.

[23] On January 13, 2009 (after his deportation), an arrest warrant was issued for Mr. Francis in Suffolk County N.Y. arising from the foregoing phone messages left for Ms. Pinka that month but no action was taken to extradite after discussions with Ms. Pinka. This is one of the outstanding warrants for Mr. Francis in the United States which have not been processed to the point of requesting extradition.

[24] Ms. Pinka changed her name to Nikki Landrio in April 2009 and moved following Mr. Francis’ deportation. She said that she did so to prevent Mr. Francis from finding her although at this point he is of course aware of her new name. To avoid confusion, I shall refer to her by her changed surname (Landrio) for the balance of these reasons.

[25] Mr. Francis explained that the messages sent by him in January 2009 were sent when he was angry because of his deportation and his belief that she had played a role in what he believed to be illegal deportation proceedings. He underlined the voluntary and civil cell phone and email communications he had with Ms. Pinka in 2010-2012 through phone calls, email and Skype. Ms. Pinka told Blouin J. that she did contact Mr. Francis after his deportation and still cared for him but that she did not seriously consider moving to Canada. During those contacts, Mr. Francis sometimes threatened to return to the United States on a false passport and that she would always have to be on the lookout.

[26] Ms. Landrio summarized the state of her relationship with Mr. Francis as follows (quoted by Blouin J. at para. 28 of his reasons):

“I’ve lived in fear of him for so long that I never realized how afraid and how tortured I had been until he was out of my life. I didn’t realize who I had become until he was no longer there. It’s been a scary, scary existence not knowing whether he is literally going to follow through with those threats or not.”

[27] Blouin J. found that “she is still terrified today” (at para. 28) and found that Mr. Francis’ behaviour “criminally harassed her throughout their relationship” (at para. 23). A transcript of Ms. Landrio’s 2017 testimony before Blouin J. is in evidence before me and fully justifies the conclusions he reached.

[28] Rather presciently, Ms. Landrio anticipated in her testimony before Blouin J. in February 2017 Mr. Francis’ actions in August 2017 upon his release that resulted in the index offences. After listing a catalogue of Mr. Francis’ harassing actions towards her, Ms. Landrio was asked if these incidents had ceased:

“It stopped because I haven’t heard from him in a few years. So usually when I don’t hear from him it’s because he’s incarcerated, so that gives me a full sense of security because as soon as he gets out, I know that he comes immediately back to harass and threaten me.”

[29] Ms. Landrio was examined about why she testified in 2017 before Blouin J. She said (at p. 89):

And I don’t want to live in fear for the rest of my life, that I have to be looking over my shoulder because he may come and try to attack me again. I don’t - I want this to stop. It’s been 20 years since I met him almost. I want this to stop. I don’t want to live in fear anymore. And that’s why I did this.

[30] Mr. Francis continues to insist that his deportation was irregular because he had no felony convictions in the United States whereas he believes that the immigration court could not lawfully deport him unless he did. While it is obviously not my function to look behind rulings made by a competent tribunal in another jurisdiction, it bears noting that Mr. Francis’ fixation on this point – for which he continues to blame Ms. Landrio in part - appears to stem from the fact that the immigration decision ordering him removed referred to a six year sentence received in Delaware whereas, in his mind, he received only a one year sentence. He could not acknowledge even when shown the March 22, 2024 letter from the Rhode Island Department of Corrections (that he referred to in his own argument) that he did receive a six year sentence even if the last five years of the sentence were suspended or that the crime for which he was sentenced - “Felony Assault” - was a felony in fact as the name clearly states.

Proceedings in Canada

(a) September 2010 – May 2011

[31] When Mr. Francis was deported from the United States to Canada in January, 2009 there were no charges against him in Canada and there are no proceedings to be noted involving him between January 2009 and September 2011.

[32] As noted above, he was in contact with Ms. Landrio despite no-contact orders in the United States and the outstanding charges against him in Suffolk County New York for violation of at least one of them. Those contacts were bi-lateral and for the most part cordial. If Mr. Francis had questions or issues regarding Ms. Landrio’s role in his deportation proceedings, he had every opportunity to raise these with her in their email, Skype and telephone interactions during this time frame. These contacts ended when Mr. Francis was arrested in 2012 in connection with his relationship with another woman – this time in Canada.

[33] Mr. Francis’ testimony at his trial indicated that he supported himself for at least some of this time working at a waterfront bar in Toronto (The Government).

(b) Charges before Akhtar J.

[34] Mr. Francis was tried before Akhtar J. on February 27-March 1, 2017 on two charges of attempted murder, and one charge of attempt to possess a prohibited firearm. The evidence was largely undisputed and the result was that Mr. Francis was acquitted on the attempt murder charges but convicted of the attempted possession of a firearm.

[35] The background of these charges was a brief relationship – less than a month in length – that Mr. Francis had with Ms. Felicia McLean in August, 2010. After a series of assaultive interactions with her, she broke off the relationship. He responded by sending text messages professing his love interspersed with threats to her life. She changed her number to try to escape from him but he tracked down her new number soon thereafter and resumed stalking her.

[36] On November 4, 2010, Taylor J. sentenced him to six months in prison beyond the 50 days of pre-sentence custody already served plus three years probation and a no-contact order.

[37] He was released on March 8, 2011 but was re-arrested within about two months for breaching probation and criminally harassing Ms. McLean. He admitted to attending her residence, photographing her car and her sister’s house. After being held for almost a year in pre-trial custody, O’Donnell J. accepted a joint sentencing position of time served plus a further day plus probation (18 months) and a further no-contact order. He was released on May 3, 2012.

[38] Within a matter of days or weeks following his release from custody on this second set of Canadian charges, efforts by Mr. Francis to locate and contact Ms. McLean resumed. An extensive undercover police operation ensued. By July 11, 2012 – just over two months following his release – Mr. Francis was again taken into custody a third time. Police had gathered information of Mr. Francis’ intention to kill Ms. McLean and her three children. In consequence of this information, Ms. McLean entered the witness protection programme and has been unable to contact her parents or siblings ever since.

[39] Prior to his arrest, Mr. Francis left a series of threatening messages posted to Ms. McLean’s social media account. The threats made bore significant similarities to the types of threats made to Ms. Landrio and her child prior to his deportation in 2009: “”When I find you, I’m going to kill your kids in front of you and you will live with the fact that they are dead because of the lies that you told”, or “you can run but you can’t hide forever” or when you don’t hear from a person, that’s when you have to worry. People don’t’ tell you when they’re going to rob, rape or kill you”. The undercover police investigation revealed instances of Mr. Francis expressing the sentiment that Ms. McLean had “f***ed [him] over” and that he would leave Canada after “taking care of business” and made inquiries about acquiring a gun and stating that he would kill Ms. McLean’s children and take his own life. He told the undercover officer of his on-going efforts to track down Ms. McLean through her children. A police search of his residence located documents containing the names of Ms. McLean’s children, her address and phone number, her sister’s address and phone number, the names and birthdates of her children and the name of her ex-husband and documents indicating attempts to seek assistance in locating Ms. McLean. His computer contained indications of internet searches to locate her through various government agencies as well. There was evidence of a thorough and persistent effort to locate her.

[40] A total of fourteen charges were laid on this third occasion (in Canada). Mr. Francis waived a preliminary hearing and went to trial before Akhtar J. on the three attempt murder charges and the count of attempted possession of a firearm.

[41] Akhtar J. found that the Crown had proved the mens rea of the attempt murder charges but failed to prove the actus reus of the attempt murder charges because the plans had not proceeded far enough to constitute an “attempt” but convicted him of attempting to possess the firearm that he sought to obtain from the undercover officer. Akhtar J. ultimately imposed a sentence of two years imprisonment which had already been satisfied by time served between 2012 and 2017.

(c) Charges before Blouin J.

[42] The Crown had originally intended to pursue a dangerous offender application in Superior Court on the predicate offences of attempted murder. Given the outcome of that trial, the dangerous offender application was instead brought before Blouin J. before whom Mr. Francis was to be sentenced on the nine charges to which he pled guilty (utter death threats x 4, breach probation x 4 and 1 x criminal harassment [3]). The sentencing hearing proceeded before Blouin J. on an agreed statement of facts in addition to five viva voce witnesses including Ms. Landrio whose testimony I have referred to earlier and Dr. Klassen who testified on this hearing as well. The Agreed Statement of Facts was reproduced in full in the written reasons of Blouin J. at para. 7 and subject to minor amendments made in open court noted in para. 8 thereof. The preceding recitation of the facts concerning the Canadian proceedings and Ms. McLean is derived primarily from that Agreed Statement of Facts. Mr. Francis did not testify at the hearing before Blouin J.

[43] Blouin J. found that Mr. Francis met the standard of a dangerous offender as prescribed by s. 753.1(1) of the Criminal Code and that the offences before him were “serious personal injury offences” as defined by s. 752 of the Criminal Code. Referring to the conduct of Mr. Francis underlying his guilty plea to the charge of Criminal Harassment and the severe harm caused to Ms. McLean that resulted in her entering the Witness Protection Program and her victim impact statement describing fear as her “daily companion”, he found that this was “not a close call”.

[44] He also concluded that evidence established that Mr. Francis constituted a threat to the life, safety or physical or mental well-being of other persons on the basis of s. 753.1(1)(a)(i) (repetitive behaviour showing past and future inability to restrain). He found that the evidence concerning Ms. McLean alone was sufficient to satisfy this criterion, but also referred to the evidence of Ms. Landrio concerning her relationship with Mr. Francis in the United States. Pointing to the existence of at least some periods of apparent lack of negative behaviour in Mr. Francis’ past, he found that he could not find that the Crown had proved beyond reasonable doubt evidence to sustain a finding of persistent aggressive behaviour pursuant to s. 753.1(1)(a)(ii).

[45] After reviewing the evidence of Dr. Klassen who conducted an assessment of Mr. Francis as well as the evidence of the parole officer who had been assigned Mr. Francis prior to the LTSO being made in 2017, Blouin J. conducted his legal analysis of the applicable sentencing principles, citing R. v. Johnson, 2003 SCC 46 for the proposition that dangerous offender proceedings form part of the sentencing process and that the decision to declare an offender dangerous is guided by the fundamental purpose and principles of sentencing contained in s. 718 to 718.2 of the Criminal Code.

[46] He concluded after a review of the evidence that Mr. Francis must be found to be a dangerous offender. That determination having been made, s. 753(4) provides the sentencing judge with three alternatives: an indeterminate sentence, a sentence for the offence of at least two years coupled with a Long Term Supervision Order for a period not to exceed 10 years or a sentence for the offence for which the offender has been convicted while s. 753(4.1) requires the court to impose the first of these (an indeterminate sentence) unless the evidence at the hearing satisfies the court that “there is a reasonable expectation” that either of the latter two options “will adequately protect the public against the commission of the offender of murder or a serious personal injury offence”.

[47] In the result, he concluded that a sentence of four years less pre-sentence custody followed by a maximum LTSO provided a reasonable expectation of public protection. He broke down his sentence as four years for criminal harassment plus six months consecutive for the fail to comply probation less 51 months of pre-sentence custody leaving three months left to serve plus a 10 year LTSO.

[48] Mr. Francis’ appeal from his sentence and dangerous offender designation was rejected by the Court of Appeal on November 14, 2023, the Court of Appeal finding no error in principle in Blouin J.’s reasons: R. v. Francis, 2023 ONCA 760.

(d) Circumstances of Index Offences

[49] On July 15, 2017 Mr. Francis was released to the Keele Community Centre under conditions approved by the Parole Board pursuant to the Long Term Supervision Order made by Blouin J. in May, 2017. He had been notified of his release conditions including an order prohibiting use of social media or any direct or indirect contact with Ms. Landrio.

[50] On July 24, 2017 Mr. Francis had his initial meeting with Ms. Heather Revill who was the parole officer assigned to monitor his progress under the LTSO. She had several follow-up meetings with him. On August 2, 2017 they met to discuss his correctional programme. In the course of that meeting, he inquired about communicating with Ms. Landrio. After a discussion about his release conditions including the prohibition on social media use and direct or indirect contact with Ms. Landrio, he asked about how he might modify the release condition to allow him to contact Ms. Landrio who he said wanted to contact him. After the potentially lengthy process of making such an application was explained to him, Mr. Francis asked Ms. Revill if she would contact Ms. Landrio and explained that he wanted to resolve questions he had about his deportation and “inconsistencies” in her statements on this. Several hours later Mr. Francis texted her Ms. Landrio’s phone number and that of her employer.

[51] On August 7, 2017 at approximately 10:10 am Justin Struthers sent a Facebook message to Mr. James Bekier containing an email address and phone number of Mr. Francis”. Mr. Bekier was a partner in Ms. Landrio’s new law firm and had learned something of Ms. Landrio’s history with Mr. Francis due to conversations with her and due to posters and protocols established in his office in the eventuality that Mr. Francis might appear there. He phoned Ms. Landrio after receiving this message to advise her of it. Police were contacted and by 7:30 pm that same day Mr. Francis was back in custody.

[52] The Agreed Statement of Fact filed at this trial admitted that Ms. Landrio feared for her safety after receiving notice of this message and that her fear was objectively reasonable. While Mr. Francis repudiated aspects of the Agreed Statement of Fact when he testified, he did not retract this admission. The evidence of Mr. Bekier, to whom the message was addressed, also supported this conclusion.

[53] Mr. Justin Struthers was an acquaintance of Mr. Francis in the halfway house in which they both resided after Mr. Francis was released to live there by the Parole Board to this facility under the conditions of the Long Term Supervision Order put in place by Blouin J. in May 2017. In convicting Mr. Francis of Criminal Harassment, the jury accepted the evidence that Mr. Francis intentionally caused this message to be sent to Ms. Landrio’s employer intending her to receive or learn of it and rejected his evidence that it was a completely different James Bekier that he had met at a party in Toronto who owed him money that he asked Mr. Struthers to contact.

[54] The jury returned a verdict of guilty to the charge of criminal harassment on January 16, 2023. That same day I delivered a verdict of guilty to the additional charges (on a separate indictment) of failure to comply with the no contact provisions of the LTSO and to comply with the “keep the peace and be of good behaviour” provisions of his probation order sitting as judge alone but based upon the same evidentiary record (in addition to the original indictment and the relevant orders).

(e) Assessment and Evidence of Dr. Klassen

[55] Dr. Klassen conducted a “file review” assessment of Mr. Francis as the latter declined to cooperate in the assessment process beyond providing a written brief to Dr. Klassen which he reviewed and noted in his report. The Appendix to his report contains a detailed listing of all of the materials reviewed which included all of the material before me for the purposes of this hearing. [4] Dr. Klassen also conducted the assessment done for the original dangerous offender hearing before Blouin J. in 2017.

[56] After reviewing and summarizing the extensive record of Mr. Francis’ past, Dr. Klassen proceeded to discuss his diagnosis. He noted that “this gentleman is now before the courts for reasons similar to those seen previously” and that he is “given to narcissistic injury, in response to which he engaged in controlling and/or punitive/vengeful behaviour”. He found that given Mr. Francis’ lifestyle dysfunction (not working, repeated incarcerations) that he “appears to meet the adult criteria for antisocial personality disorder” and that his reported “grandiosity, entitlement, and lack of empathy suggest that he also presents with significant narcissistic personality traits”.

[57] Dr. Klassen conducted a risk assessment to assess the Mr. Francis’ risk of violent recidivism using several scoring tools. He scored moderately high to high on the HCR-20. He was scored at 29 on the VRAG-R placing him in the 92nd percentile – a level at which 80% of individuals recidivated violently over 5 years opportunity in the community and 91% over 15 years. On the ODARA, Mr. Francis was scored at 9 which is a high risk score on that testing tool. Finally, using the DVRAG, a purpose-built domestic violence tool, he found that his score of 32 placed him in the 97th percentile, a percentile where similar scoring individuals recidivated violently at a rate of 100%. His conclusion in this section of his report was:

“Taken together, available risk assessment tools suggest that this gentleman is at moderately high to high risk of any violent behaviour and at high risk of domestic violence. However, I should point out that given that there was no “hands-on” violent offending behaviour in the predicate allegations, indeed since 2010, I’ve had to score this gentleman on the risk assessment tools (other than the HCR-20) based on his 2010 (“hands-on”) offending. This is not optimal; Mr. Francis is now 13 years older, and aggressive behaviour declines with age.”

[58] The report also considered Mr. Francis’ prospects of mitigation of risk through treatment. He reviewed Mr. Francis’ history of being a “challenge to supervise in the community”, his guarded approach to his probation officers and his history of treatment refusal.

[59] After making a series of recommendations for external controls for risk management he concluded his report by noting:

“Mr. Francis is now 46 years of age. His period of significant risk for physical intimate partner violence extends for perhaps a decade, or less (on average) though risk of psychological harm may extend beyond that time frame. If this gentleman receives a substantial fixed sentence, it may be that a lengthy Supervision Order would be sufficient to manage the risk in the community. However, even what might otherwise be considered less serious breaches could have significant psychological ramifications for Ms. McLean or Ms. Landrio”.

Position of the parties

(i) Position of the Crown

[60] The Crown’s position is that Mr. Francis should be sentenced as a dangerous offender to detention in a penitentiary for an indeterminate period pursuant to s. 753(4) of the Criminal Code. Mr. Francis has been found to be a dangerous offender and he has now been convicted of criminal harassment which is a serious personal injury offence: R. v. Steele, 2014 SCC 61. The finding of Blouin J. was both well-founded based on the record before him (which is also before me) and upheld by the Court of Appeal. Mr. Francis has spent his entire life terrorizing women, has adamantly refused any treatment of his psychological issues and gives no indications of being motivated in any way to change his behaviour. Ms. McLean and Ms. Landrio have had their lives upended and substantially destroyed by Mr. Francis and deserve to be able to live without constant fear of him as far as the law permits.

[61] In 2017, Blouin J. decided by the thinnest of margins that there was a reasonable expectation that public could be adequately protected against the risk posed by Mr. Francis with a sentence lesser than that of indeterminate detention. In hindsight, that faith in the effectiveness of the constraints placed upon Mr. Francis under the LTSO in place proved misplaced – he reoffended almost immediately.

[62] The evidence strongly supports that the conclusion that there is no reasonable expectation that treatment could reduce the risk posed by him to acceptable levels. He views himself as a victim and has no insight into his offending behaviour. He admits things one day only to withdraw the admission the next. He has refused all treatment thus far in his life despite all efforts to get him into treatment. He is objectively at high risk to reoffend. Absent any motivation to accept treatment and alter his ways, there remains only the tool of external controls to protect the public from a recurrence of his offending behaviour which has already substantially harmed the lives of two women in a profound way. The statistics from the corrections officials who testified establish that an indeterminate sentence is not the same as locking him up and throwing away the key – out of 800 dangerous offenders given indeterminate sentences, 151 are now living in the community.

[63] Mr. Francis views himself as the victim and his victims as accessories to his persecution. The hope that he might accept treatment inside the penitentiary if given a long sentence plus a further LTSO is just that – hope, not a plan. He has thus far refused all treatment while incarcerated. He has shown no motivation to pursue change – there is no reasonable expectation for a different outcome.

(ii) Position of Amicus

[64] Mr. Lewandowski as amicus presented me with his own submissions for consideration. He suggested to me that the Crown’s arguments lean heavily upon the facts and circumstances of Ms. McLean’s case which, while the foundation of the dangerous offender finding that underlies this Crown application, reaches for events more than ten years into the past in her case and seeks to bolster it by reference to the events of Ms. Landrio’s case fifteen years and more in the past. There is no suggestion that the index offence involved anything like hands-on contact with anyone nor was there any suggestion that Mr. Francis was trying to contact Ms. McLean. While Mr. Francis was mistaken in trying to contact Ms. Landrio, the context of that action was that he had cordial contact with her prior to his 2012 arrest (and after his deportation) and he had been unable to respond to her last communication in 2012 because he was in jail [5].

[65] Mr. Lewandowski suggested that a two-year prison sentence for the index offence coupled with a ten-year LTSO would best achieve the applicable sentencing objectives bearing the proportionality principle in particular in mind.

(iii) Position of Mr. Francis

[66] Mr. Francis presented his own closing submissions. He suggested that he had not participated in any programmes offered to date because he doesn’t have to do this when he is detained – that is something he can do when released. He said that nobody has any reason to fear him – he is over Ms. McLean and Ms. Landrio. He said that his offence cycle is getting lighter and he hasn’t put a hand on anyone so how is he a danger to the public? He pointed to 51 Division having alleged that he was wanted for a serious crime by the FBI when this was not true [6]. He suggested that his deportation from the United States was wrong and based on a legal error because in his mind he had never been convicted of a felony. He said that the offence for which he was convicted before me was minor – he didn’t talk to Ms. Landrio or threaten her. He also urged me to find that any fear felt by Ms. Landrio in consequence of his contact was not the product of anything he did. If she was afraid of him it was because of what she did in testifying against him and not because of anything he did in 2017 that resulted in his arrest. He said that he has not spent his whole life in jail as the Crown suggests. He has had responsible jobs in the US and in Canada.

[67] Mr. Francis suggested that he should be sentenced to time served plus two years probation and be allowed to finish his LTSO at the Keele Centre where he will do programs as required of him.

Analysis and discussion

[68] I am in the comparatively unusual position of sentencing an offender who has already been determined to be a dangerous offender, for crimes committed while the offender was in the community under the terms of an LTSO that is still operative and where the crime committed included a deliberate breach of the conditions of the LTSO under which he had been placed into the community in the first place. Even absent any sentence pronounced by me, Mr. Francis would still be subject to such strictures as the Parole Board may place upon him in accordance with that pre-existing LTSO and indeed the period of the existing LTSO would be interrupted by any sentence he might be ordered to serve by me under s. 753.4 of the Criminal Code.

[69] Since Mr. Francis had already been found to be a dangerous offender at the time he committed the index offences before me for sentencing, s. 753.01 applies and I must first consider whether any or all of the offences for which Mr. Francis has been convicted satisfy the definition of “serious personal injury offence” within the meaning of s. 752 of the Criminal Code which, in its operative words defines this as “an indictable offence... involving, ….(ii) conduct endangering or likely to endanger the life or safety of another person and for which the offender may be sentenced to imprisonment for ten years or more”.

[70] I have no difficulty in concluding that the index offences of Criminal Harassment contrary to s. 264(2)(b) and of breach of the conditions of the LTSO contrary to s. 753.1(a) both satisfy the requirements of the definition of serious personal injury offence.

[71] Both offences carry a maximum penalty of ten years if prosecuted by way of indictment as was the case here. The evidence at trial and the jury’s verdict establish that Ms. Landrio was the intended recipient of the communication Mr. Francis caused to be sent, that she in fact received it within a very short while after it was sent and that this attempt to contact her left her in a state of fear that was objectively reasonable in the context. Her testimony before Blouin J. clearly established the baseline of fear that she had been living under for years, including years of actual violence and threats of gruesome violence against herself and her daughter. In the case of the criminal harassment charge, the jury found that the communication caused her to fear him yet again and that it was reasonably foreseeable that this such psychological harm would result. I would make a similar finding in relation to the breach of the LTSO which is premised upon essentially the same conduct.

[72] The physical and psychological harm that Mr. Francis’ harassment of Ms. Landrio has inflicted upon her in the past was grievous in the extreme and was precisely the sort of harm that the no-contact condition was designed to prevent being revived and aggravated. The Court of Appeal in R. v. Bates and in R. v. Finnessey reviewed the extent of the problem of criminal harassment as a particularly pernicious form of violence in the domestic sphere.

[73] Mr. Francis’ pattern of harassing behaviour with both Ms. McLean and Ms. Landrio involved, among other things, threatening each of them and their respective children with gruesome physical harm and with his boasting of his ability to locate them wherever they may hide and whenever he chose to do so without being hindered by any piece of paper that a court might impose that might stand in his way.

[74] The offending behaviour of Mr. Francis in knowingly seeking to contact Ms. Landrio in the context of all that had preceded the making of the LTSO and the careful explanation of the LTSO conditions that he received upon his release to the Keele Centre leaves no doubt that he was perfectly well aware of the significant risk of material harm to the victim who was entitled to live free from fear and either intended to inflict that additional harm or was reckless as to whether he did so.

[75] Having found that two of the index offences are serious personal injury offences committed by Mr. Francis after he was found to be a dangerous offender, and the Crown having made application for an indeterminate sentence pursuant to s. 753.01(4), I must now consider whether there is a “reasonable expectation that a sentence for the offence for which the offender has been convicted – with or without a new period of long term supervision – will adequately protect the public against the commission by the offender of murder or a serious personal injury offence”: s. 753.01(5).

[76] In my view it is unfortunately quite clear that the risk of further serious personal injury offences being committed by Mr. Francis if released into the community is as high as the inability of other sentencing tools, including a new strict and lengthy LTSO to mitigate that risk is very low to highly speculative. I cannot find that there is a reasonable expectation today that the risk of further personal injury offences being committed by Mr. Francis in future can be adequately contained by a sentence for the crimes that he has committed whether with or without a new LTSO of up to ten years.

(i) The risk of a future serious personal injury offence is high

[77] I am conscious of the shortcomings and limitations expressed in the report of Dr. Klassen. Mr. Francis did not cooperate in the assessment process as was his right. His having been incarcerated for more than ten years since his arrest in the McLean matter interrupted by only a few weeks in the community in July 2017 prior to his re-arrest in August 2017, there was very little in the way of recent information for Dr. Klassen to assess. Mr. Francis’ history of “hands on” domestic violence in particular (a consideration that in no way diminishes the reality of psychological violence) is thus quite dated. Those qualifications being made, it is significant that Mr. Francis scores quite high in terms of risk of recidivism, particularly in the domestic violence sphere where the unmitigated risk of re-offending approaches certainty.

[78] While there have been some periods of relative calm in Mr. Francis’ record, none of these have been particularly lengthy or without qualification. Periods of time without a criminal conviction for example were nevertheless punctuated by incidents of sufficient gravity that protection orders were sought and granted or complaints were made to police by a domestic partner (Ms. Landrio) that were ultimately not pursued – a subject she addressed in her 2017 testimony before Blouin J. and that she attributed in part to on-going abuse and coercion.

[79] The harm inflicted when he has violated orders that attempted to restrain his behaviour has been serious and indeed life-shattering. The words of Ms. Landrio’s testimony in 2017 and Ms. McLean on the record before me both bear eloquent witness to the devastating impact upon the lives of these two women caused by Mr. Francis’ persistent, vindictive behaviour. Their lives have been upended by him and there is every reason to expect that both will reasonably continue to fear the re-emergence of Mr. Francis in their lives should he be given the freedom to attempt to track them down as he has persistently done with each of them in the past. They live in constant fear of him re-emerging in their lives.

[80] Mr. Francis asked me to conclude that he is no risk to either woman and is “over” both of them. Every bit of evidence before me strongly suggests the contrary.

[81] Mr. Francis continues to feel victimized by his 2009 deportation from the United States that he claims was illegal. He continues to blame Ms. Landrio and her employer for somehow arranging his deportation (and candidly admitted this as an explanation for his gruesome and violent 2009 voicemail messages at his 2017 sentencing hearing). The index offence before me not coincidentally involved an attempt to contact Ms. Landrio via that same employer.

[82] Mr. Francis urged me to have regard to his direct exchange of email messages with Ms. Landrio after his deportation as evidence that he and Ms. Landrio had both moved past the deportation episode and were on cordial terms. Ironically, he devoted the greatest part of his argument before me to dissecting her 2017 testimony before Blouin J. line by line to the point of suggesting that it was her fault that she feared him because she is the one who testified against him [7]. His resentment of the deportation that he still considers unjust and illegal has not abated one iota and was a constant theme of his submissions to me. Despite having heard first-hand from Ms. Landrio during her 2017 testimony about the degree of fear that he caused to reign in her life for so long and her fervent desire to be free of him, almost the first thing he did upon being given a measure of freedom at the Keele Centre only a few months later was to attempt to contact Ms. Landrio despite explicit warnings not to do so.

[83] On several occasions during his presentation to me, Mr. Francis indicated his intention of leaving Canada as soon as he can. The facts underlying the offences for which he was convicted in 2017 involving Ms. McLean involved both a determined sleuthing exercise to track her down through multiple channels and attempts to traffic in his passport and acquire a firearm. While Mr. Francis urged me to disregard his history with Ms. McLean as having nothing to do with this case, the evidence of the resourcefulness that he devoted to attempting to track her down, the similarity between the threats made to Ms. McLean and Ms. Landrio and especially the compressed time frame in which the relationship with Ms. McLean formed and so brutally dissolved indicates the degree of risk that Mr. Francis continues to pose to these two women and to other women that he may become romantically involved with in future absent some change in him.

[84] As dated as much of the input data may be, there is virtually no evidence beyond the simple passage of time to suggest that there has been any change at all in Mr. Francis that might suggest even the possibility that he has gained a degree of insight into what has gone wrong in his life and how to avoid his future being a re-run of his past. Mr. Francis’s written and oral submissions to me rather persuasively made the contrary case.

[85] Predicting the future is of course a risky business but to the extent past behaviour is the best available guide to future behaviour, Mr. Francis’ history - both his actions and his words – strongly suggests that the high recidivism risk scored by Dr. Klassen, particularly in relation to domestic violence risk, is fully justified. He has a long history of violating probation orders that sought to compel him to accept treatment and of violating no-contact orders made in both jurisdictions to protect former domestic partners of his. He has boasted repeatedly that no piece of paper will restrain him and his actions thus far have fully justified that boast. Nothing has yet succeeded in restraining him.

[86] Justice Blouin found “by the thinnest of margins” that there was a reasonable prospect that the risk of violent recidivism posed by Mr. Francis could be sufficiently attenuated by the short sentence he imposed and a rigorous LTSO regime. There was nothing lacking in the conditions the LTSO imposed upon Mr. Francis. These were fully explained to him. There was no room for doubt or ambiguity. He is clearly an articulate and intelligent man who unquestionably understood all that was explained to him. Despite the narrowness of the margin that had spared him from an indeterminate sentence before Blouin J, he deliberately took steps to do the very thing he knew he was forbidden from doing and inflicted further psychological harm upon one of his already damaged and fragile victims thereby. There can be no reasonable doubt as to the degree of risk of violent recidivism that he poses even if he himself cannot or will not appreciate the impact of the physical and psychological violence that he has inflicted.

(ii) The ability to mitigate that risk is low or highly speculative

[87] Dr. Klassen expressed a guarded view on the prospects of treatment mitigating the risk posed by Mr. Francis. The simple fact of the matter is that to this point in his life, Mr. Francis has proved utterly impervious to all attempts to help him. From his early exposures to the court system as a juvenile to the present time, the record is sprinkled with references to the danger he poses to the community and his refusal to accept any treatment. Before me, he expressed the view that treatment was something that he would only undertake after he was released and not before. He was arrested on the present charges in August 2017 and has been in detention ever since – almost seven years. Over that time frame, there is no indication that he has attempted to avail himself of any programs relevant to his own history of domestic violence issues.

[88] In dismissing Mr. Francis’ appeal from the dangerous offender designation made by Blouin J, Fairbairn A.C.J.O. concluded from her review of the decision of Blouin J. (which preceded R. v. Boutilier, 2017 SCC 64, [2017] 2 SCR 936) that the evidence pointed “toward a complete intractability and lack of treatability” and that the reasons of Blouin J. read as a whole “show that the appellant is in fact untreatable”. There is simply nothing in the record post-dating the decision of Blouin J. in 2017 that would tend to undermine that conclusion and much to reinforce it.

[89] The decision designating Mr. Francis a dangerous offender is, at this point, res judicata. The evidence before me is such that even were it not so, I cannot see how a different result could obtain based on the record before me. However, treatability is also relevant to the analysis under s. 753.01(5) that I must undertake here, but from the perspective of whether there is a reasonable expectation that a “traditional” sentence with or without a new LTSO regime would be reasonably able to mitigate the risk of violent recidivism that he clearly poses.

[90] Mr. Francis’ history of repeatedly refusing treatment leaves me with no reasonable basis to expect anything different in the future than has been demonstrated quite graphically by his past. Mr. Francis re-offended almost immediately upon his release last time and before experience with any counselling or treatment programme could reasonably be started or assessed. Treatment programmes are not a panacea – as the saying goes, you can lead a horse to water but you can’t make him drink.

[91] Mr. Francis’ lack of insight into what has led him to this juncture is as profound today as it was in 1995 when he exited the juvenile justice system in New York. Nowhere along his almost thirty years of interactions with the criminal justice system as an adult has there been any sign of empathy on his part for the harm and destruction his actions have inflicted on others. There can be no rational basis to expect that any penitentiary sentence for the index offences would achieve any degree of co-operation in counselling or treatment programmes from this offender while in custody. Treatment in the community offers no better prospects. His prior experience of almost immediately and brazenly ignoring the strictures placed upon him by a strict LTSO regime have proved the futility of expecting a different result a second time under any combination of orders that might govern his release into the community. Genuine expressions of remorse have been quite lacking in this gentleman.

[92] These conclusions lead necessarily and ineluctably to the conclusion that s. 753.01(5) requires me to hand down an indeterminate sentence and it is with a considerable degree of regret that I find myself compelled to do so.

[93] I read the introduction to these reasons along with my analysis and conclusions in open court before Mr. Francis. When I got to this point in my reasons, Mr. Francis leapt to his feet and hurled two full water bottles at my head, one missing to the left, one missing to the right. Fortunately, he did not have a third. All the while he was shouting curses and making other statements all of which have been recorded by the court reporter including his intent to attend treatment programmes to secure his release so he can escape. I succeeded in persuading Mr. Francis to sit down to hear me read the next four paragraphs before he was removed from the courtroom. In light of his violent outburst in the courtroom, the full disposition and ancillary orders made are being delivered to him in writing only.

[94] Why regret? It is not for want of confidence in the correctness and indeed necessity of my decision. Rather it is regret at the powerlessness of the correctional system to bring about what would clearly be a beneficial change in this man’s life and that of his victims.

[95] When persistence is shown towards a noble goal, we describe it as “determination” and hold it as a virtue; when the same persistence is demonstrated towards what is clearly destructive both to the person and to others, it is characterized as obduracy and is just as clearly a vice.

[96] Mr. Francis has within himself the power to secure his own improvement and to secure to some degree at least the release of his victims from the lifetime of terror and fear that he has subjected them to. His behaviour has harmed his victims greatly; it has harmed him as well. The seven years he has spent in custody on this most recent set of charges could have been spent reflecting and gaining self-awareness. They have instead been spent in defiance and self-pity.

[97] I can hope but I cannot predict. The record of our correctional system with indeterminate sentences gives cause for a reasonable degree of optimism. There is a regular review process. There are prescribed treatment programmes and progress, if any, is monitored and can lead to improvements in his circumstances. A significant number of offenders so designated have managed to obtain conditional release into the community.

[98] Mr. Francis may well be in a position to join their number were he to apply himself and he might do so sooner than might be the case with a traditional determinate sentence. I hope that he does, but I must protect the community unless and until he has made tangible progress towards that still distant goal.

Disposition

[99] In conclusion, I order as follows:

a. Pursuant to s. 753.01(5) of the Criminal Code, I find that there is no reasonable expectation that a sentence for the offences for which Mr. Francis has been convicted - whether or not accompanied by a new Long Term Supervision Order – will adequately protect the public against the commission by Mr. Francis of murder or a serious personal injury offence;

b. Accordingly, I sentence Mr. Francis to detention in a penitentiary for an indeterminate period as a dangerous offender in respect of the two serious personal injury offences before me (criminal harassment s. 264(2)(b) and fail to comply with the LTSO s. 753.1(a)); and

c. Mr Francis shall be sentenced to time served plus one day for the breach of the terms of his probation order (s. 733.1(a)).

[100] The following ancillary orders shall be made:

a. DNR order;

b. Lifetime weapons ban s. 109;

c. Orders pursuant to s. 743.2 prohibiting contact with Ms. Nikki Landrio or her family, Mr. Felicia McLean or her family and with Toronto Police Services Det. Hannah Bartz.

S.F. Dunphy J. Date: June 4, 2024

[1] Please note, the portions of these reasons that appear in italics were read to Mr. Francis in open court. It had been my intention to complete the proofreading of the summary of the evidence (“Circumstances of the Offender and of Index Offences”) section and deliver that in writing within a week. Mr. Francis violently interrupted the completion of my reading decision after learning the “bottom line” sentence and was removed from the courtroom as a result before the balance of the decision could be read to him.

[2] Subject to the operation of s. 753.4 to the extent applicable.

[3] The indictment also included an obstruct justice charge the fate of which is not apparent on the record before me but is not material to these reasons.

[4] I have not undertaken a line-by-line comparison of the file of documents assembled for this hearing compared to the appendix to Dr. Klassen’s report but from my review, it does not appear that I had any materials that Dr. Klassen did not have access to.

[5] I note that Mr. Francis did hear Ms. Landrio testify at his 2017 sentencing hearing only a few months before the he breached the LTSO by trying to contact her and cannot reasonably have inferred from that testimony that she had any desire for further contact with him of any kind even if her last direct communication with him in 2012 might have been more ambiguous.

[6] It appears that there was an erroneous communication along the way by US authorities regarding outstanding warrants for Mr. Francis in the United States. It is not clear what the source of the confusion was or is but it plays no role whatsoever in this decision.

[7] Commenting on Ms. Landrio’s expressed fear that he might come after her for testifying against him should he get out, Mr. Francis stated that it was her own fault that she feared him. He wrote (at p. 52 of his written argument): “Nikki’s fear is based off assumption for what she did. Nikki’s own actions are what caused her to be in fear of Sanjay. Would Nikki be in fear of Sanjay if she didn’t take the stand?”