Court File and Parties

Court File No.: CRIMJ(P) 315/20 Date: 2025-09-24 Ontario Superior Court of Justice

Between: His Majesty the King – and – Dyon Smart

Counsel: Ms. C. Nadler and Ms. T. Vogel, for the Crown Mr. M. Moon and Ms. A. Djukic, for the Accused

Heard: January 6, 7, 8, 9, 13, 16, March 2, April 8, 10, 11, 15, 2025

Publication Ban Notice

The court has issued an order, under section 486.4(2.2) of the Criminal Code, prohibiting any information that could identify the victim in this case (D D) from being published in any document or broadcast or transmitted in any way. This version of the court's Reasons for Sentence has been modified to comply with that order and is not subject to it.

Reasons for Sentence

STRIBOPOULOS J.:

Introduction

[1] Following a trial, I found Mr. Smart guilty of breaching a recognizance and, far more significantly, aggravated assault and attempted murder for brutally assaulting D D, just five years old at the time, and leaving him for dead in an isolated area near his home on the morning of July 19, 2018: see R. v. Smart, 2022 ONSC 2991. The aggravated assault charge has been conditionally stayed, given that it concerned the very same conduct that resulted in Mr. Smart being found guilty of attempted murder: see R. v. Kienapple, [1975] 1 S.C.R. 729.

[2] There was a long delay between the verdicts in this case and Mr. Smart's sentencing hearing, which requires some explanation. The delay had two causes. First, there was a need to litigate various issues concerning the Crown's application under s. 752.1 of the Criminal Code to have Mr. Smart assessed because it was considering applying to have him found a dangerous or long-term offender. And second, there were long stretches during which defence counsel was unavailable due to his busy schedule and an extended health leave. As a result, Mr. Smart's sentencing hearing only commenced in January of 2025 and was finally completed in April 2025.

[3] These reasons will proceed in four main parts. First, they will outline the circumstances surrounding Mr. Smart's offences. The second part details the impact of the crime on D and his family. Next, the reasons summarize Mr. Smart's circumstances, including his prior offence history and the results of a psychiatric assessment ordered under s. 752.1 of the Criminal Code. Finally, these reasons address the appropriate sentence in this case, including the Crown's application to have Mr. Smart designated as a dangerous or long-term offender.

I. Circumstances of the Offences

[4] D's mother, M J, met Mr. Smart in the summer of 2016. Over time, they developed a romantic relationship. They eventually became engaged.

[5] As their relationship developed, Mr. Smart started spending more and more time at the home Ms. J shared with D, and often stayed there overnight. However, he never moved in. Nevertheless, Mr. Smart and D spent plenty of time together during Mr. Smart's relationship with Ms. J. They developed a close bond, and D came to see Mr. Smart as his "stepdad."

[6] The relationship between Mr. Smart and Ms. J was not a happy one. Ms. J described the relationship as "off-and-on." They frequently argued, and Ms. J attributed the problems in their relationship to Mr. Smart's drug use. The romantic relationship between Mr. Smart and Ms. J ended in December 2017. However, even after that, Mr. Smart still came around and spent time with Ms. J and D at their home.

[7] By July 2018, Mr. Smart had nowhere to live, despite being subject to a bail order that required him to reside with a surety and permitted him to be outside their residence only in the company of one of his sureties or another adult they had approved in writing. Ms. J was not one of his sureties. Nevertheless, she reluctantly agreed to let Mr. Smart stay at her residence until August 2. Ms. J set two conditions for Mr. Smart to do so. He had to sleep in the basement, and he could not use drugs. The arrangement did not last very long.

[8] Concerned that he might be using drugs, Ms. J insisted that Mr. Smart take a drug test she purchased. He took it and tested positive for fentanyl. After that, Ms. J asked him to leave, and he reluctantly agreed. However, Mr. Smart did not go far. Ms. J soon realized that Mr. Smart was camping out in her backyard.

[9] On July 16, Mr. Smart's birthday, after he had been staying in her backyard for about a week, Ms. J took pity on him. He said he had somewhere to move to in a few days, and she agreed to let him stay in her basement until then. However, she made it clear to him"that was it—there were no more excuses this time."

[10] Mr. Smart slept in the basement of Ms. J's residence on the evenings of July 16 and 17. By July 18, he had still not left, and Ms. J told him he had to go. That evening, they argued about his leaving, and he insisted that he would be gone by the next day. Mr. Smart was upset about Ms. J requiring him to leave; he complained about this to one of her neighbours.

[11] At around 3:00 a.m. on July 19, 2018, after Ms. J had put D to bed for the night, while they were in her main floor living room, Mr. Smart pleaded with Ms. J to give him yet another chance. Instead of engaging with him, Ms. J decided to go upstairs and retreat to her bedroom. As she did so, Mr. Smart became angry. He told her she was selfish, caring only about herself and her son.

[12] After staying in her room for a while, Ms. J got up to use the bathroom. She checked on D, who was asleep in his bed. At that point, she could tell Mr. Smart was doing laundry in the basement because she could smell the exhaust from her dryer. Ms. J went downstairs to complain to Mr. Smart about the odour.

[13] Although Mr. Smart initially responded angrily to Ms. J, his tone quickly shifted, and he suggested they have sex. After Ms. J rebuffed that advance and reminded him that he had to leave in the morning, Mr. Smart angrily yelled at her again. He called her a "bitch" referenced her past work as an exotic dancer and called her a "whore."

[14] Ms. J returned upstairs and closed the door to D's bedroom so Mr. Smart's yelling would not wake him. As she lay in bed, she could hear Mr. Smart moving around the house before she fell asleep.

[15] As Ms. J slept, Mr. Smart, in a state of extreme anger at her for rejecting him yet again and for insisting that he leave, decided to exact his revenge on her by killing the person she loved most in the world, her son, D. Mr. Smart crept upstairs and entered D's bedroom. He woke the boy and convinced him to accompany him. Given their close bond, D unreservedly trusted Mr. Smart and would have willingly gone with him.

[16] Shortly after 5:00 a.m., without waking Ms. J, Mr. Smart and D left the residence. D was wearing his pyjamas and his running shoes. Mr. Smart walked D about 150 metres away from Ms. J's home to a wooded area next to a rail line adjacent to the townhouse complex where she and D lived.

[17] At some point, D must have realized that Mr. Smart's intentions for him were malevolent because he began to scream"mommy, mommy, mommy." A resident of a nearby apartment building overheard D calling for his mother.

[18] In that isolated location, Mr. Smart brutally assaulted D. At the time, D was only five years old and weighed just less than 50 pounds. The nature and extent of his injuries attest to the merciless violence that Mr. Smart inflicted upon little D.

[19] Dr. Cho, a pediatric physician with the Suspected Child Abuse and Neglect Unit at the Hospital for Sick Children, ultimately examined D on the evening of July 19, 2018. Additionally, she reviewed the results of the X-rays, medical scans, and tests administered as part of D's treatment. At Mr. Smart's trial, Dr. Cho, qualified as an expert in pediatric medicine and the evaluation and interpretation of maltreatment of children, testified regarding the significant injuries that D had all over his body, including:

D's Brain

D had a subgaleal hemotoma (a collection of blood over the skull), subdural hemorrhages (bleeding around the brain), and a contusion (bruise) to the lower part of his brain. The cause of these injuries was blunt force trauma to D's head. On their own, absent medical intervention, they could have resulted in D's death.

D's Face

D sustained a comminuted mandible fracture (a fracture of his jaw in more than one location), which would have required a substantial amount of force to cause, commensurate with that experienced in a motor vehicle accident, a boxing injury, or a face-first fall. Additionally, there was a disruption to two of D's teeth, which a single punch, stomp, or kick could have caused.

D's Neck

D had injuries to his neck, including bruising, soft tissue and ligamentous injuries, and a hematoma (collection of blood) on an infra-hyoid muscle (muscle at the front of his neck). The bruises on his neck were extensive. He had scattered petechiae (pinpoint bruising) involving all visible surfaces of his neck and a large linear-patterned bruise that extended around his neck. These injuries were most likely due to a compression (squeezing) force applied circumferentially around D's neck. A long rope-like cloth located by police in the vicinity of where they found D, which had his blood on it, could have been used to cause that injury.

D's Ribs

D sustained at least seven rib fractures on his right side, with associated bruising to his lungs, resulting in pneumothoraces (air developing between the chest walls and the lungs). The rib fractures resulted from direct trauma to D's chest.

D's Liver

D suffered tears and bruising to his liver caused by blunt-force trauma to his lower chest and abdomen. The injury was severe (it scored 5 out of 6 on the severity scale) and could have led to his death because of the resulting blood loss. The force necessary to cause such an injury is impossible to quantify. However, it is often associated with multi-storey falls, significant motor vehicle collisions, and other high-velocity traumatic events. Stomping on his abdomen could have caused the injuries to D's liver.

D's Head, Neck, Torso, Abdomen, Back and Extremities

There was extensive bruising all over D's body, including:

i) Patterned bruising on D's head and neck, likely the result of multiple forceful traumatic impacts to the front and right side of his head;

ii) On his left cheek, a mesh-like pattern of bruising was visible;

iii) Extensive bruising to his entire right ear (front and back) and an injury to his lower left ear. The injuries to his ears would have required significant force to cause;

iv) There was also bruising to D's chest, abdomen, and back, which would have required multiple forceful traumatic impacts to cause;

v) There were bruises and abrasions on D's arms and legs.

[20] D's bloodwork revealed an elevated protein in his blood, indicative of extensive injury to the muscles underlying the bruises present on his body, which reflected the extent and severity of his injuries.

[21] Dr. Cho testified that it would have required a significant amount of force to cause the injuries to D's head, neck, torso, liver, and extremities. In her opinion, D's injuries, especially to his head, neck, and liver, were life-threatening, and without medical intervention, would have resulted in his death.

[22] Due to the nature and extent of D's injuries, it is apparent that Mr. Smart subjected him to a relentless beating. After D was utterly helpless and on the ground, Mr. Smart repeatedly stomped on his face, head, and torso. I am satisfied beyond a reasonable doubt of that, given the amount of force required to cause D's extensive and significant injuries and the pattern-bruising on his left cheek, and a similar pattern on his pyjama top. That pattern was consistent with the diamond-shaped cross-hatching pattern on the soles of Mr. Smart's running shoes. Additionally, to ensure the realization of his murderous intent, at some point during his attack, Mr. Smart asphyxiated D using a rope-like cloth that police located close to where they found him. D's blood on that item and the linear-pattern bruise that extended around his neck compel that conclusion beyond a reasonable doubt.

[23] Confident that he had killed D, Mr. Smart left the little boy's seemingly lifeless body concealed in an area shrouded by trees and bushes. Mr. Smart then made his way back to Ms. J's residence. Once there, he attempted to cover up his ghastly crime.

[24] Mr. Smart initially attempted to clean the running shoes he wore while stomping on D's little body by washing them in the kitchen sink. However, the odour of the cleanser he used woke Ms. J up. She came downstairs to investigate. Once there, she found Mr. Smart wide-eyed and sweating. When she questioned him about what he had been washing in the sink, he said his shirt (later that morning, he told one of Ms. J's neighbours that it was his shoes). When she asked what he had been using, he said Pine Sol, which upset her because she had laundry soap in the basement. When Ms. J went downstairs to find the shirt Mr. Smart claimed he was cleaning, she instead found a homemade crack pipe, which angered her.

[25] When Ms. J returned to the main floor and confronted Mr. Smart about the crack pipe, she told him he had "to leave now." Instead of responding angrily, as he had earlier, he demurred, apologized for using the Pine Sol, and said he would leave. With that, Ms. J went back to bed, not realizing, at that time, that D was no longer asleep in his bedroom.

[26] At some point, Mr. Smart put his running shoes into the washing machine in the basement. He ran a load of laundry, an apparent attempt to wash away any potential evidence of his brutal assault on D from his shoes. He then went back to the living room, where he either fell asleep or feigned that he had.

[27] After returning to bed, Ms. J again got up to use the bathroom. At that point, she decided to check on D. Only then, at approximately 6:00 a.m., did she realize D was not in his bed. Panicked, she began searching the entire house for him. Mr. Smart was on the couch in the living room, apparently asleep, as she searched. He acted surprised when Ms. J told him that D was missing.

[28] The next hour was chaotic. Ms. J was hysterical and ran outside to search for D. Her desperate screams caught the attention of neighbours, who called the police. Soon, the neighbours, along with the police, began looking for D. Throughout this time, Mr. Smart did not join the search; he undoubtedly believed that D was already dead.

[29] As the frantic search for D was underway, Mr. Smart had the presence of mind to ask Ms. J's neighbour to write him a letter, ostensibly to avoid his arrest for breaching his bail terms. During the search, Mr. Smart essentially hid in that neighbour's backyard.

[30] At 6:58 a.m., a police officer with the canine unit, assisted by his dog, found D's almost lifeless body where Mr. Smart had left him. D was immediately rushed to the hospital by ambulance.

[31] D received emergency medical treatment at Brampton Civic Hospital to stabilize his condition. He was fitted with a neck collar, intubated, and administered intravenous fluids, antibiotics, and various medications to prevent seizures that his head injuries could cause. Additionally, he received medication to prevent bleeding, manage his pain, and sedate him. D had hypothermia; external rewarming was necessary to restore his body temperature. An orogastric tube was inserted through his mouth into his stomach, and a catheter was placed in his bladder. Unfortunately, his condition was too critical for further treatment at a community hospital. As a result, he was rushed by ambulance to the Hospital for Sick Children in Toronto ("Sick Kids") that same morning and given a blood transfusion while in transit.

[32] The police concluded relatively quickly that Mr. Smart was the person responsible for assaulting D. A police officer, who recognized Mr. Smart, arrested him when he attended Brampton Civic Hospital on the morning of July 19, 2018.

II. The Impact on the Victims

[33] When interviewed by police a few weeks later, D had no memory of Mr. Smart's brutal assault in which he attempted to kill him. Fortunately, all these years later, it appears that D still has no memory of the crime, and it is rather unlikely that this will ever change.

[34] Nevertheless, for D, his ordeal did not end on July 19, 2018; for him, that morning only marked the beginning of a long and challenging road to recovery.

[35] At Sick Kids, D received treatment from a team of 17 different specialists. He underwent surgery on July 23, 2018 to repair his jaw fracture and remove several teeth. Due to complications with the wound in his mouth, he required further surgery on July 29, 2018. After that, periodic plastic surgery treatments proved necessary to address ongoing issues with his jaw fracture.

[36] At Sick Kids, D received a cocktail of various medications to treat him, including for delirium (an acute, confused state), which he developed soon after arriving at the hospital and which persisted until July 31, 2018. D experienced continuous pain in his lower extremities and received medications to treat that. D remained at Sick Kids for three weeks.

[37] On August 7, 2018, D was transferred to Holland Bloorview Rehabilitation Hospital ("Holland Bloorview"), which offers inpatient and outpatient rehabilitative services, including for brain injuries. D was an inpatient at Holland Bloorview for nearly three months, until October 25, 2018.

[38] While at Holland Bloorview, D received intensive treatment from various rehabilitative specialists, including physiotherapists, speech pathologists, and occupational therapists. He had to learn how to walk and talk again, and even at discharge, could only walk independently under close supervision, and still had difficulty managing sentences with more complex syntax. Occupational therapists worked with D to reacquire and refine his fine and gross motor skills. He had to relearn how to dress himself and engage in other self-care activities.

[39] Upon discharge, Holland Bloorview recommended that D's school board's speech pathologist monitor his language development and consider him for further speech therapy. Regarding his educational needs, D's occupational therapist recommended that he receive preferential seating at the front of the class, frequent breaks, additional time for tests and assignments, and a quiet work environment.

[40] After his discharge from Holland Bloorview, D had to continue with outpatient treatment at Erinoaks Kids Centre for Treatment and Development. At that facility, he received further physiotherapy, occupational therapy, speech language therapy, and the assistance of a social worker. He attended Erinoaks until January 2019. After that, he continued to receive speech therapy through his school board.

[41] After returning to school, D could not fully participate in gym class until May 2019. He had to wear a helmet during recess, and there were restrictions on the physical activities he could engage in. Thankfully, at least by February 2025, D had fully recovered from the physical effects of his injuries.

[42] Dr. Peter Rumney is the Physician Director of the Rehab and Complex Continuing Care Unit at Holland Bloorview. The Crown called him as a witness at Mr. Smart's sentencing hearing. He was qualified to provide opinion evidence on pediatric medicine, focusing on the acute treatment and long-term outcomes for children and youth with acquired brain injuries.

[43] Dr. Rumney supervised D's treatment in the Brain Injury Rehabilitation Treatment Program at Holland Bloorview starting in August 2018 and has continued to see him intermittently since then. In 2021, Dr. Rumney referred D for a neuropsychological assessment to evaluate his cognitive functioning and provide recommendations for his academic planning. The assessment revealed that D has a learning disability in reading, writing, and math; he was diagnosed with dyslexia.

[44] In Dr. Rumney's opinion, D has a significant acquired brain injury as a result of the head trauma he sustained, and his learning disability is consistent with the type of brain injury he suffered. Further, in his opinion, D's disability will not resolve or disappear over time; it is lifelong. As a result of his learning disability, D will continue to require academic support. Additionally, his learning disability may adversely impact his ability to pursue higher education and his vocational choices later in life.

[45] In concluding that D's traumatic brain injury caused his learning disability, Dr. Rumney noted that there was no indication that D had any learning challenges prior to his injury, or that either of his parents had significant learning disabilities. Given this, Dr. Rumney was relatively confident that D's learning disability resulted from the brain injury he suffered.

[46] During cross-examination, Dr. Rumney confirmed that his conclusion that there was a causal connection between D's brain injury and his learning disability is contingent on D having not had an undiagnosed learning disability before his injury. Further, he acknowledged that since D had only completed senior kindergarten and was about to start grade one at the time of his injury, there would have been limited opportunities for any pre-existing learning disability to manifest itself and be detected.

[47] Based on the entirety of the record, it appears highly probable that there is a causal connection between the brain injury D sustained when Mr. Smart attempted to kill him by brutally assaulting him and his learning disability. Nevertheless, given the limited opportunity to detect whether D had his learning disability before he was injured, in my view, a causal relationship between the two has not been established beyond a reasonable doubt.

[48] In summary, Mr. Smart's crime profoundly impacted D's young life. Although he thankfully does not remember the events and has now fully recovered from his physical injuries, the road to recovery for him was very long and extraordinarily challenging. And even though D's physical injuries have now healed, the impact of Mr. Smart's crime on his parents continues to affect them.

[49] The court was required to exclude Ms. J's victim impact statement because of its inappropriate content. Nevertheless, the impact of the crime on her is readily apparent. The trial record established that Mr. Smart's crime resulted in Ms. J losing all decision-making responsibility concerning D and only having supervised visits with him. Given that her relationship with D was the most crucial thing in Ms. J's life, it is self-evident that Mr. Smart's crime has forever and profoundly altered her life.

[50] The victim impact statements prepared by D's father, Mr. D, describe how Mr. Smart's crime has traumatized him and his entire family. He explains the distress he suffered in not knowing whether D would survive and the ordeal of watching D struggle to regain his ability to walk and speak. There was also a financial toll on him, given that he lost his job to be by D's side 24 hours a day. Mr. D thinks about what happened to D every single day. The crime has physically and mentally drained him and his family. It has altered their perspective on life and understandably made them distrustful of other people.

[51] In short, Mr. Smart's incomprehensible crime has had a profoundly negative impact on D and his entire family.

III. The Circumstances of the Offender

[52] As is his right, Mr. Smart declined to participate in the preparation of a pre-sentence report. Similarly, he refused to be interviewed by Dr. Philip Klassen, the forensic psychiatrist who prepared the assessment report ordered under s. 752.1 of the Criminal Code.

[53] As a result, insight into Mr. Smart's background and circumstances has come from other sources. In particular, the Crown obtained materials from Mr. Smart's past involvement with the criminal justice system, including transcripts from those proceedings, a pre-sentence report from 2007, his provincial and federal correctional records, his probation records, and some of his medical records. The Crown shared these materials with Dr. Klassen, who summarized much of them in his report, and the Crown filed them at the sentencing hearing.

Biographical Information

[54] Mr. Smart is now 35 years old. He was 28 when he committed the offences for which the court must sentence him.

[55] Mr. Smart was born in Mississauga and initially raised there. He has an older half-brother, a younger sister, and a younger half-brother. Mr. Smart's parents had a volatile relationship, punctuated by frequent arguments and separations. Mr. Smart's father spent time in jail for his acts of domestic violence against his mother. During his upbringing, Mr. Smart's mother struggled with alcohol. Mr. Smart's parents separated for good when he was approximately 12 years old.

[56] Mr. Smart was reportedly diagnosed with ADHD at age five and again at age seven, but he did not receive pharmacological treatment for it. In grade school, he was apparently an average student who underperformed academically. Behavioural issues (anger and fighting) were apparent as early as grade one. Throughout elementary school, Mr. Smart was suspended regularly for fighting with other students and being defiant towards his teachers.

[57] After his parents separated, Mr. Smart moved to Oshawa with his mother and siblings. Unfortunately, due to his mother's alcoholism, he had little supervision during his formative adolescent and teenage years. He became involved with the criminal justice system for the first time during that period.

[58] In October 2006, at age 16, Mr. Smart attended counselling at the Trillium Health Centre Child and Adolescent Mental Health Clinic. At that time, a doctor diagnosed him with ADHD with Oppositional Defiant traits and recommended medication, which Mr. Smart declined to take.

[59] By his first youth record entry in 2007, Mr. Smart had moved in with his paternal grandparents, who resided in Mississauga. Although he started high school in Oshawa, he transferred to a high school in Mississauga when he moved in with his grandparents.

[60] During his teenage years and into early adulthood, Mr. Smart reportedly moved between his mother's and father's residences. His mother lived in Oshawa, and his father lived in Brampton. Additionally, he sometimes lived with his grandparents in Mississauga during those years.

[61] Mr. Smart did not graduate from high school. His academic performance was poor. He was suspended multiple times from the high schools he attended, including for fighting. Mr. Smart stopped attending school at age 16, having earned only 16 credits.

[62] The available information regarding his relationship history is relatively sparse. His correctional records indicate that he was in a four or five-year relationship with a young woman he met while in high school. A daughter was born from that relationship in 2011. Mr. Smart would have been 21 at the time. It is unknown whether he has ever played any role in his daughter's life.

[63] Regarding his employment history, Mr. Smart reportedly worked as a tow truck driver for his father and uncles at various times in a family-run auto body and tow truck business. His correctional records indicate that he also worked as a drywaller at some point. However, all this information is now somewhat dated. Mr. Smart told a psychiatrist in May 2018 that he was receiving Ontario Works.

[64] Parole and medical records confirm that, as Ms. J reported, Mr. Smart had substance abuse issues. Although granted statutory release in September 2015, Mr. Smart's parole was suspended in December 2015 because he tested positive on a urinalysis for cannabis and cocaine. In August 2017, Mr. Smart reported to a psychiatrist that he would go on cocaine binges that would last days.

Criminal Record

[65] Mr. Smart has a youth record and adult criminal record. His criminal history includes crimes of violence, weapons offences, thefts, drug offences, failing to attend court and breaching court orders. Unlike at a conventional sentencing hearing, where the court usually only has the benefit of a CPIC printout, the record at Mr. Smart's sentencing hearing includes a fair bit of detail concerning his prior offences.

Assault – May 29, 2007 (Youth Entry)

[66] Mr. Smart was found guilty of assault in youth court and received a sentence of time served (two days in pre-sentence custody) and 18 months of probation.

[67] The offence occurred on February 1, 2006, when Mr. Smart was 15. Mr. Smart knew the victim; they attended the same high school and were in the same grade. While in the company of two other youths, Mr. Smart bumped into the victim and then asked if he had any money. When the victim said "no" Mr. Smart slapped him in the face. Mr. Smart continued walking, but when the victim said something, he turned around, came back and punched the victim in the head. The victim briefly lost consciousness. He awoke to find Mr. Smart kicking him in the head repeatedly before he discontinued the assault and walked away. The victim suffered cuts and bruises to his head.

Possession of a Controlled Substance – October 22, 2007 (Youth Entry)

[68] On June 26, 2007, just shy of his 17th birthday, police stopped Mr. Smart because he was behaving suspiciously. During a search, they found two ecstasy tablets in his possession. At the time, he was on probation for the above-noted assault. Mr. Smart pleaded guilty and received an additional 12 months of probation.

Robbery – January 24, 2008 (Youth Entry)

[69] While at school on September 25, 2007, by then subject to two probation orders, Mr. Smart, then age 17, along with another young person, followed the victim into a washroom. Mr. Smart covered his face with a bandana before entering. Once inside the washroom, they accosted the victim and demanded money. When the victim refused, Mr. Smart and the victim tussled before Mr. Smart pushed him into a washroom stall. Mr. Smart then removed $20 from the victim's pocket. Mr. Smart pleaded guilty to robbery and was sentenced to 12 months of probation.

Failure to Comply with an Undertaking – May 9, 2008 (Youth Entry)

[70] On April 25, 2008, Mr. Smart, then 17 and a half years old and already subject to three probation orders, was subject to an undertaking not to have contact with his co-accused from the robbery. The police found him in the company of that person. Mr. Smart pleaded guilty and received a sentence of 18 months of probation.

Failure to Comply with Recognizance, and Failure to Comply with Disposition – August 7, 2008

[71] On May 21, 2008, the police found Mr. Smart in the company of an individual with whom he was not to have contact under the terms of a recognizance. He was also subject to a youth court sentence that included a condition requiring him to keep the peace and be of good behaviour.

[72] Mr. Smart pleaded guilty to breaching his recognizance and the terms of his youth court disposition. By the time of these offences, Mr. Smart was subject to four separate probation orders. He received a sentence of time served (26 days pre-sentence custody) and two years of probation.

Robbery – March 10, 2011

[73] Mr. Smart pleaded guilty to robbery for his role, along with four other assailants, in robbing the victims, a man and a woman, on October 3, 2010. At the time, Mr. Smart was 20 years old.

[74] A member of Mr. Smart's group arranged to buy drugs from the two victims. At the scheduled meeting, one of the assailants struck the male victim in the head with a baton or pipe, causing him to fall to the ground, before others in the group joined in assaulting him. Another assailant pulled the female victim to the ground and, assisted by a second assailant, managed to rip her purse away from her. It contained cash and marijuana. The male victim required eight stitches to close a wound on his forehead and suffered a stab wound to his back.

[75] In pleading guilty, Mr. Smart admitted to being present to participate in a "grab and run" robbery, but he denied having a weapon or assaulting either of the victims. He expressed remorse and maintained that had he expected violence to be involved, he would not have participated.

[76] The court sentenced Mr. Smart to 118 days of custody, after crediting him for the 32 days he had already spent in pre-sentence custody. Furthermore, he was placed on probation for two years, which included a condition that he attend counselling, issued a DNA order, and imposed a ten-year weapons prohibition under s. 109 of the Criminal Code.

Failure to Attend Court – June 7, 2012

[77] Mr. Smart pleaded guilty to failing to attend court on April 20, 2012, in relation to a charge of dangerous driving he was facing at that time. He received a sentence of time served (three days).

Theft Over $5,000 – February 6, 2013

[78] Mr. Smart pleaded guilty to one count of theft over $5,000. He admitted that on October 22, 2012, he entered a jewellery store, where he asked to examine some rings, and distracted the store employee by inquiring about some bracelets. When she turned her back, Mr. Smart grabbed several rings and ran out of the store. The rings, worth $8,416, were never recovered. At that time, Mr. Smart was still on probation. The court sentenced Mr. Smart to six months of imprisonment and 12 months of probation.

Possession of a Firearm Without a License and Breaching a Weapons Prohibition Order – April 1, 2014

[79] Following a trial, Mr. Smart was found guilty of possessing a sawed-off shotgun without a license and breaching a weapons prohibition order.

[80] While investigating a convenience store robbery, the police obtained a warrant to search Mr. Smart's mother's apartment. They executed the warrant on February 6, 2013. Inside a mattress on the floor of Mr. Smart's bedroom, the police located a sawed-off shotgun. Mr. Smart was subject to a weapons prohibition order at the time.

[81] The court sentenced Mr. Smart to 38 months of imprisonment, less the equivalent of 15 months pre-sentence custody. Additionally, the court placed him on probation for three years and imposed a lifetime weapons prohibition order under s. 109 of the Criminal Code. The court also made a DNA order.

Theft Over $5,000, and Failure to Attend Court – April 29, 2014

[82] On September 18, 2012, Mr. Smart and a second man attempted to steal a piece of construction equipment left at the side of the road. They hooked it up to a tow truck and pulled away, but they were stopped by police and were arrested. Mr. Smart failed to attend his first scheduled court appearance on that charge. Mr. Smart pleaded guilty to these offences and received a sentence of 60 days of imprisonment, concurrent for both charges, consecutive to the sentence he was then serving.

Possession of a Controlled Substance – April 23, 2021

[83] On June 26, 2020, while awaiting trial in this case and held at the Toronto South Detention Centre, correctional staff found Mr. Smart unconscious in his cell. After correctional staff attended to him, including having him transported to the hospital, they found 1.09 grams of fentanyl in his cell. Mr. Smart pleaded guilty and received a sentence equivalent to 45 days in jail for this offence.

Institutional Misconducts

[84] Beginning in 2008 when he was a youth, and continuing throughout much of his adult life, Mr. Smart has been in and out of custody. While incarcerated previously and since his arrest in July 2018, Mr. Smart has amassed a significant record relating to acts of institutional misconduct. Beyond his non-compliance with institutional rules and engaging in disruptive behaviour more generally, even more concerning is his involvement in approximately 30 separate incidents involving violence or threatening behaviour.

Probation and Parole Records

[85] Probation records reveal that Mr. Smart consistently failed to comply with the terms of his probation orders. As noted above, he frequently reoffended while on probation. Beyond that, there were persistent issues with him failing to report as required and failing to comply with other conditions, such as completing anger management and drug counselling. As noted, in December 2015, he was recommitted to custody while on statutory release because of his drug use. The Parole Board rereleased him on March 31, 2016, subject to additional conditions. His parole was suspended again on April 26, 2016, because he was not at home for a curfew check.

Dr. Klassen's Assessment

[86] As noted, Dr. Klassen was the forensic psychiatrist appointed to prepare the assessment ordered under s. 752.1 of the Criminal Code. His assessment report became an exhibit at the sentencing hearing, and he also testified at the hearing.

[87] Dr. Klassen was qualified to provide expert opinion evidence in the field of forensic psychiatry and to offer his opinions on risk assessment and risk management generally, and specifically in relation to Mr. Smart.

[88] In Dr. Klassen's opinion, Mr. Smart's history of offences and the information available about his life and lifestyle are consistent with a diagnosis of antisocial personality disorder. This personality type is closely associated with criminal behaviour and can manifest in various ways. Individuals with antisocial personality disorder tend to be nonconforming, exhibit aggressive behaviour, and often display impulsivity and irresponsibility. They typically do not take responsibility for their actions. Furthermore, they are frequently risk-taking, manipulative, and duplicitous. Dr. Klassen testified that between 60% and 80% of incarcerated offenders have antisocial personality disorder.

[89] Dr. Klassen testified about various actuarial tools used to evaluate an offender's risk of recidivism. Due to his inability to interview Mr. Smart and the resulting limitations in the information available to him, Dr. Klassen chose to use the Violence Risk Appraisal Guide-Revised (VRAG) to assess Mr. Smart's risk of violent reoffending. For similar reasons, he decided not to score Mr. Smart using the Psychopathy Checklist-Revised (PCL-R), which is primarily a diagnostic tool known for its predictive validity. He did not feel confident in doing so based solely on the information obtained from his file review.

[90] Dr. Klassen assessed Mr. Smart's risk of violent recidivism using the VRAG, scoring him between 31 and 33. This places Mr. Smart between the 94th and 96th percentiles, meaning that out of 100 randomly selected violent offenders, 94 to 96 would be at a lower risk of reoffending than he is. In his report and testimony, Dr. Klassen noted that individuals with similar scores typically reoffend violently at significant rates: 80 percent within five years, 88 percent within seven years, and 91 percent within 15 years. According to Dr. Klassen, these findings indicate that Mr. Smart falls into the highest risk category on the VRAG, and he emphasized that offenders in this category tend to reoffend more quickly.

[91] In his report and testimony, Dr. Klassen acknowledged his scoring of Mr. Smart on the VRAG was provisional and somewhat cautious due to uncertainties in some of the information available to him during the scoring process. Consequently, if uncertain, he leaned towards giving Mr. Smart the benefit of the doubt, which resulted in a somewhat lower score than he might have received otherwise.

[92] Dr. Klassen pointed out that the base rate of violent recidivism has declined over time, starting in the 1980s and levelling off in 2010. As a result, the probability estimates provided by the VRAG may now be overestimates. However, he also noted that it is unclear whether this trend applies to all risk categories on the VRAG, particularly for individuals like Mr. Smart, who fall into the highest risk category.

[93] Additionally, Dr. Klassen testified that although the VRAG is a reliable predictor of an offender's chances for violent recidivism, it does not provide insight into the severity of such reoffending. Nevertheless, it reliably predicts an individual's risk of committing a "hands-on" violent offence.

[94] Dr. Klassen testified about the decline in violent offending rates as individuals age. He indicated that after the age of 50, there is a significant and consistent decrease in these rates, with an almost complete drop-off after 60. However, Dr. Klassen pointed out that Mr. Smart is "not out of the woods at 34" meaning that the aging process cannot solely address the risk of his reoffending.

[95] Regarding risk management, Dr. Klassen testified that an offender's dynamic variables (criminogenic factors) are more relevant than their static variables. This is because treatment and supervision can address an offender's dynamic variables. Regarding Mr. Smart, Dr. Klassen noted that there is limited information about his dynamic factors related to aggressive behaviour since he did not participate in the assessment process.

[96] Dr. Klassen testified that dynamic variables can include an individual's values and attitudes, negative peer associations (such as gang affiliations), substance misuse, and an unstructured lifestyle or lack of leisure interests. Regarding Mr. Smart, Dr. Klassen noted that records from the Correctional Service Canada indicated that he exhibited hostile misattributions and that a sense of abandonment might also contribute to his pattern of aggressive behaviour.

[97] Dr. Klassen testified about the treatment options available for Mr. Smart. While Mr. Smart was incarcerated in the federal penitentiary system for his firearm and weapons prohibition offences from 2014 to 2015, he completed the Violence Prevention Program Moderate Intensity. Dr. Klassen indicated that, considering Mr. Smart's history of violent behaviour since completing the program—both in the community and while incarcerated—any changes he made as a result of the program were not lasting in some contexts.

[98] In Dr. Klassen's opinion, Mr. Smart's efforts thus far have either been ineffective or have not addressed his underlying issues. He pointed out that Mr. Smart has not yet received treatment for substance misuse. Moreover, given Mr. Smart's classification as a high-risk individual, he requires high-intensity treatment—a more extensive program—rather than the moderate-intensity option he completed previously. Eventually, he will also need ongoing maintenance treatment if released into the community.

[99] Dr. Klassen testified that Mr. Smart's antisocial personality disorder presents significant challenges for his treatment. He explained that individuals with this disorder often struggle to take responsibility for their actions, exhibit impulsive behaviour, and tend to be self-satisfied. These characteristics can negatively affect their treatment outcomes overall.

[100] In addressing risk management, Dr. Klassen expressed the opinion that, based on Mr. Smart's history—including his record on probation and statutory release—he does not appear capable of managing his behaviour independently. Dr. Klassen believes that Mr. Smart would likely require external controls. However, since he did not have the opportunity to interview Mr. Smart, Dr. Klassen could only provide general risk management recommendations. Given Mr. Smart's higher risk of violent reoffending, Dr. Klassen suggested that he would need a more structured residential environment if he were to return to the community. This could include residing at a community correctional centre or a community release facility. Considering Mr. Smart's age and his elevated risk of violent reoffending, Dr. Klassen recommended that a maximum supervision period in the community of ten years would be sensible if the court imposed a determinate sentence followed by a long-term supervision order.

[101] Finally, Dr. Klassen testified that some of the very traits that make individuals with antisocial personality disorder less amenable to treatment also make their offending more intractable and make them less amenable to supervision in the community.

IV. Issues, Law and Analysis

[102] The parties advance sharply divergent positions concerning the sentence the court should impose on Mr. Smart for his offences.

[103] Relying only on s. 753(1)(a)(iii) of the Criminal Code, the Crown applies for Mr. Smart to be found a "dangerous offender." If the court agrees, the Crown submits that the court should impose an indeterminate sentence. Alternatively, if the court does not find that he is a dangerous offender, the Crown submits that Mr. Smart should receive a life sentence. In the further alternative, if the court concludes that a determinate sentence would be appropriate, the Crown submits that the court should order that Mr. Smart be subject to a long-term supervision order for ten years. Finally, if the court imposes either a life or a determinate sentence, the Crown submits that under s. 743.6(1) of the Criminal Code, Mr. Smart should be required to serve at least ten years before he is eligible for parole.

[104] In contrast, Mr. Smart submits that the Crown has failed to establish that he meets the criteria to be found a dangerous offender under s. 753(1)(a)(iii) of the Criminal Code. Instead, he submits that a 16 to 18-year sentence would be appropriate. However, because of pre-sentence custody credit (Mr. Smart has remained in custody for over seven years since his arrest on July 19, 2018), including the mitigating effect of the harsh conditions he endured while incarcerated (including during the pandemic), Mr. Smart submits that a sentence of four and a half years going forward would be appropriate. Additionally, acknowledging concerns regarding his potential risk of reoffending, Mr. Smart concedes that a five-year long-term supervision order would be sensible, to ensure he completes the programming he requires to reduce his risk of reoffending.

[105] With the parties' respective positions summarized, these reasons now address each of the issues raised.

(1) Has the Crown Established Beyond a Reasonable Doubt That Mr. Smart Is a "Dangerous Offender"?

[106] The Crown applies to have Mr. Smart designated a "dangerous offender." In doing so, it relies solely on s. 753(1)(a)(iii) of the Criminal Code, which provides:

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

(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;

[Underlining added]

[107] As with any contested aggravating fact on sentencing, the burden rests on the Crown to establish the preconditions for a dangerous offender designation, and it must do so beyond a reasonable doubt: see R. v. Currie, [1997] 2 S.C.R. 260, at para. 25; R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at footnote 1, and at paras. 36, 41, 45.

[108] The first requirement for a dangerous offender designation under s. 753(1)(a)(iii) is the offender's conviction for a "serious personal injury offence." In this case, that is not at all contentious. At least with the more serious of Mr. Smart's two offences, attempted murder, given the circumstances of that crime, it readily meets the definition: see Criminal Code, s. 752. Attempted murder is an indictable offence that carries a maximum sentence exceeding ten years of imprisonment. Further, here, the crime involved the use of violence that endangered the victim's life.

[109] The disagreement between the parties concerns whether the Crown has established beyond a reasonable doubt that Mr. Smart constitutes a threat to the life, safety or physical or mental well-being of other persons based on any behaviour by him "associated with the offence" which was "of such a brutal nature as to compel the conclusion that [his] behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint."

[110] The case law recognizes that an offender's behaviour associated with their offence will meet the "brutal nature" threshold where it is "coarse, savage and cruel and ... capable of inflicting severe psychological damage on the victim": R. v. Langevin, 11 C.C.C. (3d) 336, at p. 349. Additionally, Hill J., after citing dictionary definitions and synonyms of "brutal" concluded that merciless, unfeeling, ruthless, vicious and inhuman conduct would also qualify: see R. v. Campbell, 120 C.R.R. (2d) 231, at para. 84.

[111] In R. v. Melanson, the Court of Appeal for Ontario rejected a narrow interpretation of s. 753(1)(a)(iii)'s reference to "any behaviour by the offender, associated with the offence." A jury convicted the offender of attempted murder for striking a woman on the head with a rock. In dismissing the Crown's dangerous offender application, the sentencing judge restricted his assessment of whether the circumstances met the requirements of s. 753(1)(a)(iii) to the offender's actions in committing the assault. He declined to rely on writings by the offender that revealed his intention to abduct, rape, torture and then murder the victim. The Court of Appeal held that the sentencing judge erred by doing so. Subparagraph 753(1)(a)(iii), it reminded"permits consideration of any conduct 'associated with the offence'" and concluded that the writings by the offender "fit within that description": R. v. Melanson, 152 C.C.C. (3d) 375, at para. 37 (underlining added), leave to appeal refused, [2001] S.C.C.A. No. 362. See also R. v. Leopold, 2001 BCCA 396, 155 C.C.C. (3d) 251, at paras. 23-30, leave to appeal refused, [2001] S.C.C.A. No. 551.

[112] In this case, the conduct by Mr. Smart associated with his attempt to murder D included: (1) his motive for the crime – attempting to kill Ms. J's son to seek revenge against her for rejecting him; (2) that the crime involved a profound breach of trust, as Mr. Smart essentially stood in a parental relationship toward D, who considered him to be his "stepdad"; (3) the premeditated nature of the crime, involving some degree of planning and deliberation; (4) the vulnerability of the victim, at the time D was just five years old, asleep in his bed in his home, when Mr. Smart set his plan in motion; (5) Mr. Smart's persistence with his plan despite little D repeatedly calling out for his mother; (6) once he had D in an isolated location, Mr. Smart viciously assaulted him, repeatedly and forcefully stomping on the little boy's head, face, and torso, and attempting to asphyxiate him with a rope-like cloth; (7) after the assault, Mr. Smart left D for dead, in the dark, in an isolated location, where he was less likely to be found; (8) following the crime, Mr. Smart made efforts to destroy evidence; and (9) despite thinking that D was dead, Mr. Smart had the presence of mind to attempt to protect himself from being arrested for breaching his bail.

[113] Remembering all these circumstances, Mr. Smart's behaviour associated with his attempt to murder D undoubtedly meets the brutality threshold. Terms such as merciless, cruel, unfeeling, ruthless, vicious, and inhumane fairly describe Mr. Smart's behaviour associated with his ghastly crime. Similarly, I am satisfied beyond a reasonable doubt that Mr. Smart's conduct was coarse, savage, cruel, and capable of inflicting severe psychological damage on D.

[114] However, the brutal nature of the offender's behaviour associated with their crime is only the first part of the test under s. 753(1)(a)(iii). A sentencing judge must also be satisfied beyond a reasonable doubt that it was such "as to compel the conclusion that the offender's behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint." As the Court of Appeal has recognized"the determination is for the court but is one that can be, and often is, informed by psychiatric evidence": R. v. Blake, 2022 ONCA 336, at para. 39 (citing various supporting decisions).

[115] The only psychiatric evidence adduced at Mr. Smart's sentencing hearing came from Dr. Klassen. He rightly declined to offer an opinion on whether Mr. Smart's attempt to murder D was of a "brutal nature" acknowledging that he was in no better position than the court or a layperson to offer such an opinion. Nevertheless, during his testimony, Dr. Klassen testified concerning what, from a psychiatric standpoint, Mr. Smart's behaviour associated with that offence might foretell about the risk he could pose in the future. The relevant portions of his evidence follow:

Q. Okay. In terms of to – to go back to the language of the statute, the controlling language of the statute, conduct associated with the offence which would compel the conclusion. That's – that word 'compel' is a pretty significant one. You know, like it is – it's binary, either it is or it isn't, right?

A. Yes.

Q. So – and then to follow that, the person would unlikely, and I can't remember, but you know, be subject to future behavioural constraints. It would be fair to say that there is nothing so singularly striking in the conduct related to this offence by Mr. Smart, that would compel that conclusion from you, is there?

A. I can think of very few scenarios that would compel that conclusion. Again, it's possible that if something happened where from that offence, you can draw a pretty firm opinion about sexual sadism which is a very unique condition. You might be able forensically speaking, to say something along those lines but other than that where the issues involve substance misuse, antisociality, major mental illness etcetera. I can't really think of a scenario where there's a single incident that would compel me to think that a person would be etcetera, etcetera.

Q. Just to go back. In this case, you were not in a position to provide an opinion to this court as to whether any behaviour by Mr. Smart associated with the offence for which he has been convicted is of such a brutal nature as to compel the conclusion that the offender's behaviour in the future is unlikely to be habited [sic] – inhibited by normal standards of behavioural restraint?

A. I would say, not I and I would say it would be inappropriate for forensic psychiatrist in most cases, to try to respond to that.

Q. Okay. And what if I were to suggest to you that if you have somebody, I refer to them as a cipher. Somebody with no criminal record, no criminal antecedents, who has committed an apparent act, broken into somebody's house, tortured, stabbed people for – just for pleasure. For the pleasure of seeing the pain on their faces. Just all over a protracted period of time. He planned and deliberated this type of conduct, right. So, this is almost like a – remember the Tate/LaBianca killings way back, you're dating yourself as much as I just did, but – but something along those lines. A psychiatrist in that circumstance could engage in a clinical assessment of the conduct, couldn't they, and potentially come to an opinion?

A. You – you mean an opinion regarding diagnosis or risk?

Q. Well, it's just an opinion to the effect that, the offence, the conduct is so abhorrent that it compels the conclusion?

A. I think it's – I mean, I'll take a step back. The standard of practise for forensic psychiatry in – in risk – in prognostication risk assessment, is to follow a process. A process that involves certain structured, directorial tools etcetera. And we would not be adherent to a standard of practise to rely typically on a single incident in any but perhaps the most extraordinary circumstances. Now, I mean you know, the situation that you've just described is a very extraordinary circumstance...

Q. Right.

A. ...and you've also included in your vignette to me, I don't know whether you intended to but presumably you did, you've included some information about the motivation of that offender.

Q. Mm-hmm.

A. So, when you say this is obviously a person who – you're saying a person who's killed many people, they take delight in it, they enjoy the exercise of sadism. They've enacted it on multiple occasions within this well you know, on span. You know, I think in that circumstance probably, most reasonable people including, hopefully, some forensic psychiatrist would say, I'm – I've – this person appears to be largely without conscious. They derive pleasure from other's pain and this person is not going to be able to adhere to the usual code of behavioural restraint. But I think absent a very dramatic situation and in particular in the absence of a good understanding of motivation and thus diagnosis and potentially the longitudinality of that diagnosis, I think it would be inappropriate to try to prognosticate from a single bit of information as oppose to our usual process.

Q. Okay. And just to reiterate, not to the point of redundancy but the vignette that I provided you is not the facts that we're dealing with here.

A. No.

Q. No, so this is not one of those extraordinary cases?

A. No.

Q. Okay.

A. It's not a Charles Manson scenario, no.

[116] To be sure, the determination required by s. 753(1)(a)(iii), whether the brutal nature of an offender's behaviour associated with their crime is such as to compel a conclusion that their behaviour is unlikely to be inhibited by ordinary standards of behavioural restraint in the future, belongs exclusively to the judge tasked with imposing sentence. Nevertheless, a sentencing judge does not make that assessment in a vacuum. Instead, they must do so based on the record, including any psychiatric evidence adduced by the parties.

[117] As noted, the only psychiatric evidence before this court is the report and testimony of Dr. Klassen. Dr. Klassen is one of the leading forensic psychiatrists in this province, if not the country. That was very likely why the parties jointly recommended that he be appointed to prepare the assessment ordered under s. 752.1 of the Criminal Code. Dr. Klassen was an even-handed and careful witness. I have no reason whatsoever to reject any aspect of his evidence. That includes his opinion that nothing about the circumstances surrounding Mr. Smart's offence would compel a conclusion, from a psychiatric perspective, that he is unlikely to be inhibited by normal standards of behavioural restraint in the future.

[118] Based on the whole of the record, despite the extreme brutality involved in his attempt to murder D, I am not convinced beyond a reasonable doubt that any behaviour by Mr. Smart, associated with that offence, is such as to compel a conclusion that his behaviour is unlikely to be inhibited by normal standards of behavioural restraint in the future. Reaching the opposite conclusion would essentially require ignoring Dr. Klassen's uncontradicted opinion evidence. Ultimately, however, I accept Dr. Klassen's evidence in its entirety.

[119] In rejecting the Crown's application to have Mr. Smart designated a dangerous offender under s. 753(1)(a)(iii) of the Criminal Code, it deserves to be mentioned that I have not considered Mr. Smart's prior offence history. In its written and oral submissions, the Crown submitted that I should, and cited some lower court decisions from other provinces where sentencing judges appeared to do just that. Beyond not being bound by those decisions, I am less than persuaded that s. 753(1)(a)(iii) leaves any room to consider an offender's prior offences. That provision focuses exclusively on "any behaviour by the offender, associated with the offence." Although that undoubtedly requires consideration of all the circumstances surrounding the offence for which the court is sentencing the offender, permitting an offender's past offences to inform that determination would serve to blur the distinction between the three alternative routes for a dangerous offender designation prescribed by s. 753(1)(a), under subparagraphs (i), (ii) and (iii). It is not the court's role to rewrite subparagraph (iii). That is a task for Parliament, should it conclude the provision requires it.

[120] For these reasons, the court dismisses the Crown's application to have Mr. Smart designated a dangerous offender.

(2) What Is the Appropriate Sentence for Mr. Smart?

[121] Sentencing is discretionary by nature. There is no set formula that judges can follow to decide the appropriate sentence. Instead, judges must consider the purpose and objectives of sentencing, be mindful of the governing sentencing principles, especially the need to impose a proportionate sentence, and account for the aggravating and mitigating factors to ultimately fashion a just and appropriate sentence.

Purpose, Objectives, and Principles of Sentencing

[122] Sentencing judges must remember the fundamental purpose of sentencing, which Parliament has identified as protecting society and contributing "to respect for the law and the maintenance of a just, peaceful and safe society": Criminal Code, s. 718.

[123] Achieving that purpose requires the court to impose "just sanctions" that address one or more of the traditional sentencing objectives: see Criminal Code, s. 718. These include denunciation, general and specific deterrence, separation of offenders from society, rehabilitation, reparation to victims, promoting a sense of responsibility in offenders, and acknowledging the harm done to victims and the community: see Criminal Code, ss. 718(a)-(f).

[124] Ultimately, the court must respect the fundamental principle of sentencing: that any sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender": Criminal Code, s. 718.1. In other words, the sentence must fit both the seriousness of the crime and the offender's level of moral blameworthiness in its commission: see R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 36-37; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 40-43; R. v. Gilmore, 2025 ONCA 517, at para. 34.

[125] Respecting the principle of parity is essential to arriving at a proportionate sentence. Proportionality is a function of the circumstances of the offence and offender, compared to sentences previously imposed on similar offenders for similar offences committed in similar circumstances. As the Supreme Court has explained, a sentencing judge must reconcile individualization and parity to achieve a proportionate sentence: see R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 53, citing Criminal Code, ss. 718.2(a) and (b). However, they do not operate in tension; "parity is an expression of proportionality": R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 32; see also at paras. 30-33; R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366, at paras. 11-12.

[126] Ultimately, proportionality "has a restraining function" because it helps "guarantee that a sentence is individualized, just and appropriate": R. v. Bissonnette, 2022 SCC 23, [2022] 1 S.C.R. 597, at para. 51; see also Ipeelee, at para. 37. As Trotter J.A. recently explained: "Proportionality acts as a brake to ensure that, in the pursuit of public protection measures, including deterrence and denunciation, sentences are not unduly excessive": Gilmore, at para. 36; see also at para. 34.

Sentencing for Attempted Murder

[127] The moral blameworthiness of an offender guilty of attempted murder is the very same as that of an offender who succeeds in killing their victim, and thereby commits murder. The Supreme Court of Canada made this clear in R. v. Logan, [1990] 2 S.C.R. 731, at p. 743:

The stigma associated with a conviction for attempted murder is the same as it is for murder. Such a conviction reveals that although no death ensued from the actions of the accused, the intent to kill was still present in his or her mind. The attempted murderer is no less a killer than a murderer: he may be lucky-the ambulance arrived early, or some other fortuitous circumstance-but he still has the same killer instinct. Secondly, while a conviction for attempted murder does not automatically result in a life sentence, the offence is punishable by life and the usual penalty is very severe.

[128] Although an offender guilty of attempted murder avoids the imposition of an automatic life sentence, they do so "not because of any mitigating factor, but because through good fortune, the victim was not killed": R. v. McArthur, 182 C.C.C. (3d) 230, at para. 47. In other words, an offender guilty of attempted murder is little more than a "lucky murderer": Logan, at p. 743.

[129] The Court of Appeal has recognized that the crime of attempted murder committed in a domestic context is an especially egregious example of that offence. In R. v. Kormendy, 2019 ONCA 676, 147 O.R. (3d) 701, Feldman J.A. observed, at para. 28:

While every attempted murder is a most serious crime, attempted murders in the domestic context are particularly heinous. The domestic partner victims are uniquely vulnerable because they are in a relationship of trust with the perpetrator. Even more vulnerable are children of the person in the relationship with the perpetrator, who often suffer terribly in a myriad of ways, if they survive the murder attempted on them.

[130] Given the gravity of such crimes, the Court of Appeal has repeatedly emphasized that denunciation and deterrence are the paramount sentencing objectives for attempted murder committed in a domestic context: see R. v. Boucher, 186 C.C.C. (3d) 479, at para. 27; R. v. Tan, 2008 ONCA 574, 268 O.A.C. 385, at paras. 31, 40; R. v. Huff, 2012 ONCA 86, at para. 18; R. v. Vienneau, 2015 ONCA 898, at para. 14; Kormendy, at para. 29; R. v. Cunningham, 2023 ONCA 36, 166 O.R. (3d) 147, at para. 26.

[131] It is therefore not at all surprising that offenders who commit attempted murder in a domestic context receive exemplary sentences. Recently, in Cunningham, after a thorough canvassing of the case law, the Court of Appeal identified nine years of imprisonment as the bottom end of the range, and life imprisonment, the maximum sentence permitted, as being at the upper end: at paras. 40-43.

[132] In a domestic context, in cases involving first offenders whose crime was premeditated or brutal, the Court of Appeal has endorsed sentences between 13 and 15 years of imprisonment: see R. v. Adamson, 2018 ONCA 678, 364 C.C.C. (3d) 41 (13 years); Tan (15 years); Cunningham (15 years). In contrast, in cases involving offenders with prior criminal records for violence, where the offence was premeditated and especially brutal, the Court of Appeal has upheld life sentences: see R. v. Charlebois, 1987), 22 O.A.C. 235; R. v. Huff, 2012 ONCA 86; R. v. Lieug (Y.K.), 82 O.A.C. 317; R. v. Mesgun, 121 C.C.C. (3d) 439. Notably, in R. v. Simpson, the Court of Appeal upheld a life sentence where the crime was cruel and callous and the evidence established that the offender posed a continuing danger to society: see R. v. Simpson, 58 C.C.C. (2d) 308.

[133] Lastly, it is worth noting that sentencing ranges are "guidelines rather than hard and fast rules": Nasogaluak, at para. 44. They help structure a sentencing judge's exercise of their discretion because they reflect the application of the objectives and principles of sentencing when it comes to sentencing for a particular offence: see Lacasse, at para. 57. Nevertheless, a sentencing judge may determine that a sentence below or above the established range is necessary, given that the "determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation": Lacasse, at para. 58; see also Nasogaluak, at para. 44.

Aggravating and Mitigating Circumstances

[134] In determining the appropriate sentence, a sentencing judge must consider any aggravating or mitigating circumstances relating to the offence or the offender: see Criminal Code, s. 718.2(a). A proper inventory of these is essential to arriving at a proportionate sentence because they inform the court's assessment of the gravity of the offence and the offender's degree of responsibility in its commission. They serve to "push the sentence up or down the scale of appropriate sentences for similar offences": Nasogaluak, at para. 43.

[135] In this case, there is an absence of mitigating factors. During sentencing submissions, defence counsel conceded that he was hard-pressed to identify any. After a break in proceedings, he advised that Mr. Smart had indicated that while incarcerated, he had availed himself of available programming and made efforts to complete his high school equivalency. However, defence counsel did not file any documentary evidence to substantiate Mr. Smart's claims. Due to Mr. Smart's prior convictions for crimes of dishonesty, his abysmal record while in custody, and the absence of any supporting documentation (for example, certificates), I find it impossible to credit Mr. Smart's claims. There are no mitigating factors in this case.

[136] In terms of aggravating factors, there are several, and they are significant.

[137] First, Mr. Smart has numerous prior convictions for crimes of violence. He has acted out violently throughout much of his life, beginning in his youth. His propensity for violence is unabated, even when subject to the structure and close supervision provided within a custodial setting.

[138] Second, before the offence, Mr. Smart had been in an intimate relationship with Ms. J. The victim in this case was Ms. J's son. Mr. Smart's victimization of his former intimate partner's child is a statutorily aggravating factor: see Criminal Code, s. 718.2(a)(ii).

[139] Third, it is also a statutorily aggravating factor that the victim of Mr. Smart's offence was someone under the age of 18: see Criminal Code, s. 718.2(a)(ii.1). Its weight is only magnified by the fact that D was just five years old at the time of Mr. Smart's offence and, therefore, an especially vulnerable victim.

[140] Fourth, the circumstances of this offence involved a profound breach of trust. While in a relationship with Ms. J, Mr. Smart took on a parental role toward D. Recall that D considered Mr. Smart to be his "stepdad." Mr. Smart exploited his position of trust to facilitate this crime. It was only because of the nature of that relationship that Mr. Smart was able to spirit D away in the middle of the night to execute his murderous plan. The abuse of a position of trust in relation to the victim is a significant aggravating factor: see Criminal Code, s. 718.2(a)(iii).

[141] Fifth, Mr. Smart's attempt to murder D was premeditated. It was a calculated effort to exact revenge on Ms. J for rejecting him, and was the culmination of at least some planning and deliberation on his part. That too is a significant aggravating factor: see R. v. Chizanga, 2024 ONCA 545, 172 O.R. (3d) 241, at paras. 127-30.

[142] Sixth, the impact of Mr. Smart's crime on D and his family is also a significant aggravating factor: see Criminal Code, s. 718.2(a)(iii.1). Mr. Smart's crime profoundly impacted D's young life. The road to a full recovery from his physical injuries was long and arduous. And, for D's parents, the psychological impact of Mr. Smart's crime will undoubtedly reverberate for the rest of their lives.

[143] Finally, there is Dr. Klassen's evidence that Mr. Smart poses a high risk of violently reoffending. That too is an aggravating factor: see R. v. Kakekagamick, 81 O.R. (3d) 664, at paras. 71, 73. In that regard, I am mindful that Mr. Smart's score on the VRAG alone is incapable of predicting the severity of any violent crime Mr. Smart is likely to commit in the future. Nevertheless, given his prior track record for crimes of violence, the circumstances involved in his attempt to murder D, that he has continued to behave violently while in custody awaiting trial, and his antisocial personality disorder, the risk that he could seriously injure or kill another person in the future seems very real indeed.

The Appropriate Sentence

[144] In arriving at the appropriate sentence, I have carefully considered the circumstances of Mr. Smart's offences, the purpose, objectives, and principles of sentencing, the range of sentences for attempted murder committed in a domestic context, the sentencing precedents for such offences, and the significant and numerous aggravating factors in this case.

[145] As already noted, Mr. Smart's attempt to murder D was of an extraordinarily brutal nature. It was a premeditated crime committed against an exceptionally vulnerable victim. And, as the many significant aggravating factors demonstrate, Mr. Smart bears a very high degree of responsibility for committing what was an entirely senseless and horrific crime.

[146] Only a sentence of life imprisonment would be proportionate to the gravity of Mr. Smart's barbarous crime and his degree of responsibility in its commission. Anything less would inadequately address the objectives of denunciation and deterrence, which are the preeminent sentencing objectives for attempted murder committed in a domestic context.

[147] Further, given all the circumstances, including Mr. Smart's high risk of violently reoffending and his antisocial personality disorder, which presents a significant challenge to him ever remediating the causes of his violent behaviour, life imprisonment is the only sentence capable of achieving the fundamental purpose of sentencing, which is the protection of society: see Criminal Code, s. 718.

[148] In that regard, the comments of Jessup J.A. in R. v. Hill, 15 C.C.C. (2d) 145, at pp. 147-148, aff'd , [1977] 1 S.C.R. 827, appear directly relevant to the circumstances of this case:

When an accused has been convicted of a serious crime in itself calling for a substantial sentence and when he suffers from some mental or personality disorder rendering him a danger to the community but not subjecting him to confinement in a mental institution and when it is uncertain when, if ever, the accused will be cured of his affliction, in my opinion the appropriate sentence is one of life. Such a sentence, in such circumstances, amounts to an indefinite sentence under which the parole board can release him to the community when it is satisfied, upon adequate psychiatric examination, it is in the interest of the accused and of the community for him to return to society.

[149] Accordingly, whether Mr. Smart ever secures his release from custody will depend on the decision of the Parole Board of Canada. To be sure, Mr. Smart has much work to do before he can ever hope to return to the community.

[150] Given the imposition of a life sentence, it is unnecessary to address the Crown's application that Mr. Smart be subject to a long-term supervision order. Such an order is unavailable if an offender receives a life sentence: see Criminal Code, s. 755(1).

(3) Should Mr. Smart's Eligibility to Apply for Parole Be Delayed?

[151] The Crown seeks an order under s. 743.6(1) of the Criminal Code to delay Mr. Smart's eligibility for parole until he has served at least ten years of his sentence.

[152] Absent such an order, the Crown points out that because Mr. Smart has remained in custody since his arrest on July 19, 2018, under s. 120(2) of the Corrections and Conditional Release Act, he would immediately be eligible for parole after the court sentences him. The Crown's concern is that, unless the court makes the order sought, Mr. Smart could potentially be released into the community before he has received any treatment. Given that throughout his time in pre-sentence custody, Mr. Smart has been detained in various remand centres, he has not yet received any treatment.

[153] Respectfully, the Crown's concerns seem somewhat speculative. It is important to remember that the Parole Board of Canada has an obligation to prioritize the "protection of society" when making parole decisions: see Corrections and Conditional Release Act, ss. 3.1, 100.1, 101(c) and 102. Given this responsibility, it is highly unlikely that Mr. Smart will have a realistic chance of being granted parole before he has completed a considerable amount of programming to address the factors contributing to his violent behaviour. Until Mr. Smart no longer poses a high risk of reoffending, the prospect of his parole is extraordinarily unlikely.

[154] Even more significantly, s. 743.6(1) of the Criminal Code only permits the court to delay an offender's parole eligibility:

... if satisfied, having regard to the circumstances of the commission of the offence and the character and circumstances of the offender, that the expression of society's denunciation of the offence or the objective of specific or general deterrence so requires, ...

[155] As the Supreme Court of Canada has explained, the decision to delay parole eligibility under s. 743.6 of the Criminal Code is out of the ordinary, and sentencing judges should not employ it routinely: see R. v. Zinck, 2003 SCC 6, [2003] 1 S.C.R. 41, at paras. 29-30. A sentencing judge should only make such an order if satisfied that it is needed to reflect the objectives of sentencing, remembering the special weight ascribed by s. 743.6 to the sentencing objectives of denunciation and deterrence: see Zinck, at para. 31.

[156] In this case, I am far from satisfied that the objectives of sentencing require an order delaying Mr. Smart's parole eligibility. Ultimately, a life sentence more than adequately addresses the sentencing objectives of denunciation and deterrence. As a result, I decline to make such an order.

Conclusion

[157] For the offence of attempted murder (count one), the court sentences Mr. Smart to life imprisonment.

[158] For the offence of breaching a recognizance (count three), given his previous related convictions and the brazen nature of the breach, a sentence of eight months of imprisonment, concurrent, will be noted. However, due to Mr. Smart's time spent in pre-sentence custody, he finished serving that sentence long ago. As a result, although the court shall record an eight-month sentence, the sentence imposed today will be one further day in custody, concurrent with the sentence imposed on count one.

[159] The court shall also make the following orders: 1) a DNA order under s. 487.051(1) of the Criminal Code; 2) a lifetime weapons prohibition order under s. 109(3) of the Criminal Code; and 3) a non-communication order under s. 743.21 of the Criminal Code, prohibiting Mr. Smart, while serving his sentence, from communicating, directly or indirectly, with D D, [D D's father], or M J.

[160] Since Mr. Smart's offences predate the current iteration of s. 737 of the Criminal Code, no victim surcharges are payable.

Signed: "J. Stribopoulos J."

Released: September 24, 2025