Court File and Parties

Peterborough Court File No.: CR-20-2284-0000 Date: 2025-08-25 Ontario Superior Court of Justice

Between: His Majesty the King – and – Dillon Dwayne Cowen, Defendant

Counsel: K. Eberhard, for the Crown J. Miglin, for the Defendant

Heard: July 22, 2024, and written submissions

Before: Regional Senior Justice M.L. Edwards

Reasons for Sentence

Overview

[1] On February 8, 2020, Hien Dang Nguyen was an international student attending a local community college in Peterborough. He was walking to a part-time job as a line cook at a local Peterborough bistro when he was stabbed by Mr. Cowen as he was taking a shortcut through an alley. The attack was completely unprovoked. Mr. Nguyen had never seen nor met Mr. Cowen prior to February 8, 2020. They were total strangers.

[2] This matter proceeded to trial on a charge of attempt murder. On July 29, 2022, I released my Reasons convicting Mr. Cowen of assault causing bodily harm. In my Reasons, I determined that the circumstantial evidence in this case did not lead to the conclusion that Mr. Cowen intended to kill Mr. Nguyen when he was assaulted and stabbed in the parking lot.

[3] At the completion of the trial and having released my Reasons, counsel for the Crown then advised the court that the Crown would be seeking a dangerous offender designation. On July 22, 2024, at the time of sentencing, I gave brief oral reasons with written reasons to follow. These are my written reasons.

[4] These reasons for sentence explain why the Crown abandoned the dangerous offender application and why the court accepted a joint submission on sentence that resulted in Mr. Cowen being sentenced to an additional three years in the penitentiary in addition to the time that he had already served. The total sentence therefore was 9.75 years. In addition, as part of the joint submission the Crown sought a long-term supervision order for eight years.

[5] The court accepted the aforesaid joint submission. Mr. Cowen was sentenced on July 22, 2024 on the basis of the joint submission to an additional three years in the penitentiary and would be subject to a long-term supervision order of eight years. Various ancillary orders were also imposed. These reasons explain the unusual circumstances that resulted in the Crown abandoning its dangerous offender application and why this court accepted the joint submission as one that was in the public interest.

The Procedural History From The Time of Conviction

[6] On January 8, 2023, I received a psychiatric assessment report from Dr. Scott Woodside addressing the question as to whether Mr. Cowen met the criteria for either a dangerous offender or a long-term offender status as set out in section 753 of the Criminal Code of Canada (the Code). A further report dated April 2, 2023 from Dr. Woodside was also sent to me that addressed additional information provided to Dr. Woodside relating to Mr. Cowen's convictions for various adult offences.

[7] The dangerous offender application was to be heard by me over the course of two weeks commencing February 12, 2024. As a result of an injury that I suffered in that timeframe the dangerous offender application had to be adjourned to be heard during the weeks of July 22 and August 12, 2024.

[8] On May 7, 2024, the Court of Appeal released its reasons for decision in R. v. Hason, 2024 ONCA 369. In Hason the trial judge having convicted the accused designated him as a dangerous offender based on expert testimony of Dr. Woodside. The accused appealed his conviction as well as the danger offender designation and the indeterminate sentence imposed.

[9] After the Court of Appeal heard argument the court learned of a decision of Bird J. in R. v. Nettleton, 2023 ONSC 3390.

[10] At paragraph 4 of his reasons, Tulloch C.J. in Hason summarized the Nettleton decision as it relates to the evidence of Dr. Woodside as follows:

[4] … Dr. Woodside admitted that his practice is to take a careless approach to an important section of dangerous offender reports that judges may rely on, in conjunction with other evidence, to send someone to jail for potentially the rest of their life. His admission indicates that he may not treat his important responsibilities as an expert witness with the care and diligence that his duty to the court requires. If the trial judge had known of Dr. Woodside's careless practice and considered it together with the specific errors that the appellant's trial counsel exposed, he may well not have relied on Dr. Woodside's evidence to impose an indeterminate sentence. It is unsafe and risks a miscarriage of justice to rely on that evidence to send the appellant to prison for potentially the rest of his life in the absence of other expert evidence to confirm it.

[11] In Hason Tulloch C.J. ultimately came to the conclusion that while the testimony of Dr. Woodside in Nettleton did not undermine the reasonableness of the trial judge's decision to designate the accused as a dangerous offender, it did require a new hearing on penalty. In that regard, Tulluch C.J. noted at paragraph 88 that the trial judge had relied on Dr. Woodside's apparent reliability to impose an indeterminate sentence. As Tulloch C.J. noted it may very well have been the case that the trial judge would have reached a different conclusion if he had known of Dr. Woodside's careless practice.

[12] Dr. Woodside was clearly going to be a critical witness for the Crown when the dangerous offender application was to be heard by me during the weeks of July 22 and August 12. The Court of Appeal decision in Hason was released on May 7, 2024 fortuitously after the original dangerous offender trial date set for February 12 and 19, 2024.

[13] The Crown correctly, aware of the Court of Appeal decision in Hason, provided a copy to counsel for Mr. Cowen. Ultimately, the Crown determined that it would be inappropriate to proceed with the dangerous offender application in the face of the Hason decision and the Nettleton decision.

[14] Crown counsel was faced with a situation where the Crown could either adjourn the dangerous offender application and obtain a new report from a new forensic psychiatrist or ultimately deal with it on the basis of the joint submission that this court ultimately accepted on July 22. Had the Crown adjourned the dangerous offender application and obtained a new report, the delay might very well have had a significant impact on Mr. Cowen in terms of obtaining the necessary treatment that he clearly needs to address the various issues canvassed in Dr. Woodside's reports. In addition, there might also have been a Charter application under section 11(b).

[15] Crown counsel ultimately engaged in resolution discussions with counsel for Mr. Cowen that resulted in the joint submission that came before the court on July 22, 2024, a joint submission that this court accepted. Sentence was imposed on Mr. Cowen on July 22, 2024 in order for Mr. Cowen to immediately begin treatment once he began his incarceration at the penitentiary. He had had no treatment throughout the time period that he has been incarcerated from the time of the offence until now.

Mr. Cowen's Personal Background

[16] Much of the information concerning Mr. Cowen is derived from the report prepared for the court by Dr. Woodside which is dated January 8, 2023. Both counsel agreed that this court could utilize the reports of Dr. Woodside for the purposes of the sentencing. Mr. Cowen was born on December 2, 1996. As such at the time of the offence for which he was convicted by this court Mr. Cowen would have been approximately 24 years of age. When Mr. Cowen was six years of age his biological parents separated. His mother died when he was 17 years of age. There is evidence that his mother may have been disabled and dealt with various drug addictions.

[17] The report of Dr. Woodside reveals that Mr. Cowen had a history of learning disabilities as well as mental health and behavioural issues dating back to an early age. His behavioral issues included self-harming, aggression directed at others, fire setting, substance abuse, and criminal activities.

[18] As far as Mr. Cowen's education is concerned it appears that Mr. Cowen completed grade 9. He was identified as having special learning needs related to attention and focus. There is evidence from Dr. Woodside's report that Mr. Cowen was diagnosed with obsessive-compulsive disorder, oppositional defiant disorder, and attention deficit/hyperactivity disorder.

[19] Information from Dr. Woodside's report reveals that during the course of his education Mr. Cowen received suspensions for fighting with other students and was ultimately expelled after kicking another student in the face. It is reported Mr. Cowen engaged in fights due to the fact that he felt he was bullied and targeted because of his stature.

[20] Mr. Cowen has a very limited employment history which included roofing and concrete work when he was 15 to 16 years of age. There is some suggestion that Mr. Cowen may have applied for a disability pension when he was 17 years of age which may have been granted on the basis of his offending history, aggression and mental health needs.

[21] The report of Dr. Woodside suggests that Mr. Cowen has a history of drug abuse including using cannabis beginning at age 12 and MDMA at age 17. He has also used crack cocaine (since the age of 17) as well as oxycontin or Percocet on a daily basis for about a year beginning in 2015.

[22] Mr. Cowen has an extensive criminal background both as a young offender and as an adult. His criminal record covers a period of 14 years beginning in February 2010. His criminal record reflects 22 youth findings of guilt and 32 adult convictions. As it relates to his adult convictions and youth findings of guilt, Mr. Cowen has a record that includes 15 violent offences; 3 weapons offences; 11 property offences; and 18 failing to comply with court orders. Mr. Cowen has re-offended 30 times while on probation.

[23] Having reviewed the summary provided to the court it is apparent that Mr. Cowen has been involved in numerous offences involving violence which include violence against the general public, his intimate partners, and his acquaintances. Having reviewed Dr. Woodside's report the inescapable conclusion is that Mr. Cowen would be at a high risk for future violent behaviour if the court did not impose significant interventions.

Victim Impact Statement

[24] Mr. Nguyen who was violently assaulted and stabbed by Mr. Cowen submitted a victim impact statement. At the time of the assault Mr. Nguyen was a foreign student from Vietnam studying computer engineering at Fleming College. The stab wounds to Mr. Nguyen's abdomen required hospitalization and despite the passage of time Mr. Nguyen indicates in his statement that he still suffers pain if he is standing for too long or while walking. Mr. Nguyen also suffered an injury to the left side of his face which continues to cause numbness. Mr. Nguyen also suffers from dizziness if he stands for too long.

[25] A review of the Mr. Nguyen's victim impact statement makes it quite clear that in addition to the physical injuries suffered in the assault Mr. Nguyen has been impacted emotionally. Mr. Nguyen notes that he sees the world quite differently from how he perceived it prior to the assault. Where he used to see the world as a safe place especially Peterborough, he is now worried. Despite all he has been through a reading of his victim impact statement reflects a sense of optimism and an indication that Mr. Nguyen wants to remain in Peterborough and to "make a good life for myself".

The Joint Submission

[26] When this matter came before the court on July 22, 2024, Mr. Cowen had been incarcerated at the Central East Correctional Centre (CECC) for approximately 4.5 years since his arrest. Throughout that time period, Mr. Cowen has received no treatment. With credit for the time that he has served at CECC Mr. Cowen, at the time of sentencing on July 22, 2024, would have served 6.75 years. The joint submission was that Mr. Cowen would be incarcerated in the penitentiary for a further three years resulting in a total sentence for the conviction for aggravated assault of almost 10 years. In addition, Mr. Cowen would be subject to a long-term supervision order for eight years.

Position of Mr. Cowen and the Crown

[27] Mr. Cowen was ably represented at the sentencing hearing by Mr. Miglin. Mr. Miglin was not Mr. Cowen's defence counsel at trial.

[28] Fundamentally Mr. Miglin argued that the court should only depart from the joint submission if it was contrary to the public interest (see R. v. Anthony-Cook, 2016 SCC 43). Specifically, it is argued that as the sentencing judge I should not depart from a joint submission unless the proposed sentence would bring the administration of justice into disrepute or was otherwise contrary to the public interest.

[29] In his oral submissions Mr. Miglin argues that while a total sentence of approximately 9.7 years would be at the high-end of any sentence that might be imposed for the offence for which Mr. Cowen was convicted, it was nonetheless an appropriate sentence taking into account all of the relevant considerations on sentencing. As it relates to the risk of Mr. Cowen reoffending, Mr. Miglin acknowledged that the long-term supervision order was very much appropriate, taking into account Mr. Cowen's history and that he was in need of long-term counselling which he has never had throughout the entirety of the years reflected in his criminal record.

Analysis

[30] Underlying the joint submission was the impact of the Court of Appeal decision in Hason. There was a real concern that the Crown would be put into the position of having to obtain a new forensic psychiatric report that would not only impact on the immediate need for treatment for Mr. Cowen but also could potentially result in a breach of Mr. Cowen's section 11(b) Charter rights. As such, both the Crown and the defence were of the view that the court should accept the joint submission so that Mr. Cowen could begin incarceration at a penitentiary where he could get treatment.

[31] Having approved a sentence of an additional three years in the penitentiary, the court must then determine whether or not a long-term supervision order was appropriate as it relates to both Mr. Cowen's needs for rehabilitation and the protection of the public.

[32] There can be little doubt from a review of Mr. Cowen's conduct reflected throughout the entirety of his criminal record that Mr. Cowen, since a relatively young age, has been the subject of numerous criminal probation orders and that on many occasions Mr. Cowen would reoffend despite probation orders.

[33] The offence for which Mr. Cowen was convicted related to a totally unprovoked assault. A review of the complete history of this matter including a review of Dr. Woodside's report can leave little doubt that Mr. Cowen presents a substantial risk that he would reoffend and, as such, the Crown urged the court to impose a long-term supervision order. The imposition of such an order would afford a reasonable possibility of controlling the risk to the community.

[34] The Supreme Court of Canada in Anthony-Cook has made it clear to trial judges imposing sentence that a joint submission should only be rejected if it would bring the administration of justice into disrepute or if it would be otherwise contrary to the public interest. In this case the Crown could not have anticipated the concerns raised by the Court of Appeal in Hason. But for the injury that I suffered the dangerous offender application would have been heard during the two weeks set aside commencing February 12, 2024. The Crown was confronted with a real possibility that a new report would have been required resulting in a delay that could have triggered 11(b) concerns. The resolution reflected in the joint submission was both a practical as well as a sensible resolution.

[35] The imposition of a sentence of an additional three years in the penitentiary provided an opportunity for Mr. Cowen to obtain treatment that his criminal record clearly demonstrates he needs. It reflects all of the principles of sentencing. As for the long-term offender designation there can be no doubt that the public requires the protection afforded by such an order. There is equally no doubt that Mr. Cowen's criminal record demonstrates that he needs the structure of a long-term supervision order. The joint submission of counsel imposing a long-term supervision order is clearly in the public interest.

[36] For these reasons the Court accepted the joint submission and imposed a sentence of an additional three years in the penitentiary as well as the long-term supervision order for eight years.

Released: August 25, 2025

Edwards, R.S.J.