Court File and Parties

Court File No.: CR-22-129 Date: 2025-10-09 Ontario Superior Court of Justice

Between: His Majesty the King – and – Hormoz Zand, Defendant

Counsel:

• Brenda Cowie and Kristine Staats for the Crown
• Jason Rabinovitch for Mr. Zand

Heard: December 15, 2023; January 19, February 12, March 5, May 14, May 23, June 13, July 17, September 18, October 23, November 6, and November 25, 2024; and January 13, January 21, January 23, February 3, February 24, April 22-25, April 29-30, May 1, June 3, and June 27, 2025.

Judgment on Sentence

C. Boswell J.

This written ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If there are any discrepancies between the oral and written versions, it is this official written ruling that is to be relied upon.

Introduction

[1] On November 3, 2023 I convicted Hormoz Zand, following a short trial, of the following four offences:

(i) Assault with a weapon, namely a knife (which I will refer to as the "predicate offence");

(ii) Uttering death threats;

(iii) Mischief under $5,000; and

(iv) Breach of a probation order, specifically a condition that he not possess any weapon.

Collectively, I will refer to these as the "index offences."

[2] Following the convictions, Crown counsel advised that they would be seeking a dangerous offender designation. The road to the actual sentencing hearing was long and arduous, as dangerous offender applications often are. On March 25, 2024 I made an order that Mr. Zand be assessed by Dr. Scott Woodside pursuant to s. 752.1 of the Criminal Code. Subsequent court decisions impugning other assessment reports prepared by Dr. Woodside caused the Crown, with the consent of the defence, to abandon the Woodside assessment. On July 12, 2024 I made an order that Mr. Zand be assessed by Dr. Jonathan Gray of the Royal Ottawa Mental Health Centre. That assessment was completed over the summer of 2024 and a report was filed with the court by Dr. Gray on September 9, 2024.

[3] Subsequently the defence spent some time considering whether a defence psychiatric report would be obtained. In January 2025, they advised the court that they would not be proceeding with a defence assessment. Several court appearances followed in an effort to secure hearing dates that counsel and the court were all available for.

[4] The sentencing hearing eventually took place over nine days between April 22, 2025 and June 27, 2025.

[5] The following are my reasons for the sentence imposed today.

The Circumstances of the Index Offences

[6] In August 2021, Mr. Zand was living with his brother in a home his brother rented in Bradford, Ontario. Mr. Zand had been taking prescribed anti-psychotic medications but had not been adhering to the prescribed dosage regimen. His brother perceived his mental state to be deteriorating.

[7] On the morning of September 7, 2021, the brothers were together in the living room. Mr. Zand was in an agitated state. He smashed a computer that he had only just recently purchased. He then got into a fight with his brother over money. He demanded that his brother give him a sum of money his brother was supposedly holding for him. His brother refused. In response, Mr. Zand said "Ok, then I'll fucking kill you."

[8] Mr. Zand then went to the kitchen and obtained a knife. In the meantime, his brother exited the house and stood in front of it, but across the street. Mr. Zand proceeded to smash his brother's television set. He then emerged from the house with the knife in his hand. He chased his brother down the street, but his brother managed to make it to a nearby welding shop where he called the police.

[9] At the time of the offences, Mr. Zand had been subject to a probation order which included a term that he not possess any weapons.

The Impact of the Offences

[10] No victim impact statements were filed. Nevertheless, one can readily imagine the fear Mr. Zand's brother would have felt as a result of being chased by Mr. Zand who was armed with a knife and who had threatened to kill him. It would not have been lost on his brother that Mr. Zand had only recently served a term in the penitentiary for having attempted to murder their mother with a knife.

The Circumstances of the Offender

[11] Mr. Zand was born February 4, 1997, which means he is currently 28 years old. He has had a difficult and complicated history. His interactions with the Children's Aid Society (the "CAS"), youth treatment centres, psychiatrists, psychologists, medical centres, and the criminal justice system have generated many thousands of pages of detailed records about him. He has spent most of his adult life in prison and, if the Crown has its way, will spend a good deal more of it there.

[12] Mr. Zand's parents separated when he was about 10 years old. He appears to have initially lived with his mother, Mitra Shariat-Panahi. According to information Mr. Zand provided to Dr. Gray during the assessment process, shortly after the separation his mother "kicked him out of the house" and he went to live with his father. It is debatable how accurate that information is. CAS records reflect that Mr. Zand lived with his mother full-time until June 2010, when he was 13. At that time, he began to reside with his father, according to CAS notes, "for the first time in many years."

[13] At any rate, Ms. Shariat-Panahi has described her son as being happy and healthy as a young boy. He did well in school until about grade three or four. By then, however, he was exhibiting significant issues with anxiety and anger.

[14] It appears that Mr. Zand adopted maladaptive coping mechanisms from a young age. By his own account, he began to use marijuana at age eight. He started to drink alcohol by the age of 12. By 15, he was using cocaine intermittently. By 18, he was using Hydromorphone and OxyContin intravenously.

[15] The CAS appears to have first engaged with the family, and with Mr. Zand in particular, in 2008. Mr. Zand had been receiving services from Crossroads Children's Mental Health Centre in Ottawa. It is not clear to me how he was referred to Crossroads, but a July 31, 2008 CAS note indicates that he was receiving services for behavioural problems including marijuana use, drinking alcohol, stealing, being belligerent and defiant with his mother, and generally demonstrating an "I don't care" attitude. Someone from Crossroads referred Mr. Zand to the CAS because reports came to her attention that Mr. Zand's father was drinking excessively and using cocaine as well as other drugs. He had allegedly lost his driver's license but still drove with Mr. Zand and his brother in the car, while impaired. It was also reported that the father had threatened, in the children's presence, to kill himself. This threat reportedly caused Mr. Zand great distress.

[16] On March 26, 2009, Mr. Zand, then aged 12, was placed at a Youth Service Bureau facility in Ottawa following an incident of physical aggression with his mother. His mother reported that he had been using large amounts of marijuana and that he had been exhibiting violent behaviour at home, including punching holes in walls. She said she had called the police on three occasions as a result of his violent behaviour.

[17] In an interview with a CAS worker on April 6, 2009, Mr. Zand's brother corroborated his mother's report. He said Mr. Zand was "angry every day", that he became physically aggressive when angry, and would break things, and punch holes in the walls.

[18] Mr. Zand was assessed by Dr. Palframan at the Children's Hospital for Eastern Ontario on April 1, 2009. He admitted to Dr. Palframan that he had been using marijuana and selling it for two years to pay for his own supply.

[19] Dr. Palframan described Mr. Zand as being well above average in intelligence. He listed several diagnoses, including aggressive conduct disorder of adolescence, unsocialized; substance use of marijuana and alcohol; anxiety disorder; and obsessive compulsive personality traits.

[20] In June of 2009, Mr. Zand had a physical altercation with another child at school. The police were called. His mother advised that she did not want him back in her home. She signed a three-month temporary care agreement with the CAS on June 29, 2009. That agreement was subsequently extended by another six months on September 28, 2009.

[21] Mr. Zand eventually returned to live with his mother in March 2010. But continuing difficulties in the home led to his apprehension by the CAS on August 12, 2010. On October 29, 2010, the court made a finding that Mr. Zand was a "child in need of protection," and a six-month Crown wardship was ordered.

[22] Things appeared to be improving for Mr. Zand after he became a temporary Crown ward. He did well in his foster placement and was engaged in school and sports. In June 2011, he graduated grade eight and was named one of two class valedictorians. He gave a speech and received several awards for academics and extra-curricular activities.

[23] On July 11, 2011, Mr. Zand became a permanent Crown ward, with access to his mother, as agreed upon by the CAS, his mother, and Mr. Zand. Access to his father was to be at the discretion of the CAS. It appears that, at this time, his father was living in an undisclosed location in Europe and had nothing to do with Mr. Zand.

[24] Unfortunately, the improvement in Mr. Zand's life was short-lived.

[25] He continued to regularly use marijuana. He refused to acknowledge that he had a drug problem and refused to participate in addiction counselling. He became increasingly aggressive. In December 2011, he caused significant damage to the home of his foster family and became verbally aggressive towards his foster parents. The police were called, and Mr. Zand was arrested and taken into custody. He was released on bail to a group home.

[26] Throughout January 2012, Mr. Zand was repeatedly reported missing from the group home. That same month, he was convicted of mischief under $5,000 in relation to the damage caused to the foster family's home. He was sentenced to one year of probation. He was referred to the Portage Youth Addictions Treatment Program in Elora, Ontario ("Portage"). Again, however, he was reported missing on multiple occasions. He advised his CAS worker that he wished to live with his uncle in Toronto and was indeed placed there. By the end of March 2012, however, his uncle had evicted him, and he was back in a group home.

[27] In June 2012 Mr. Zand was placed by the CAS back into his mother's home to assess whether it was possible for him to return to her care. He continued, however, to have violent outbursts and he caused damage to her home. In early September 2012, during a meeting with a CAS worker, his mother advised the worker, in his presence, that if he did not start making progress, she would "send him away and will be done with him" and that she will "wash her hands of him and will never see him, speak to him, or even speak of his name again." Unsurprisingly, he became upset. He told the worker that his mother said things like that to him "100 times a day." He asked to return to the Society's care.

[28] The next day, a CAS worker attended at Mr. Zand's home again and found that he had been badly beaten and required emergency dental care. His mother refused to take him. The CAS worker arranged for his care.

[29] On September 18, 2012, Mr. Zand was apprehended by the CAS and taken back into care. He was placed in a foster home.

[30] Mr. Zand turned 16 in February 2013. On his 16th birthday he signed himself out of CAS care, assuming he could return to live with his mother. She did not, however, want him living with her. With nowhere else to live, he ended up breaking into townhomes under construction. He was eventually charged with a series of offences that included:

• Being unlawfully in a dwelling (his mother's home);
• Mischief (for breaking into his mother's home);
• Multiple counts of breaking and entering (townhomes under construction); and
• Assaulting a police officer, whom he spit at.

[31] He was convicted, in February 2014, of most of these offences. He was again sentenced to 12 months of probation. Once again, he was referred to Portage and once again, his time with them was unsuccessful. He remained there for just 13 days. A discharge summary dated March 27, 2014, reflects that he made no effort to engage in programming. He often displayed aggressive and defiant behaviour. He was discharged on March 25, 2014 and was thereafter housed in a group home in the Ottawa area.

[32] Mr. Zand went on to be evicted from successive group homes throughout 2014. Staff generally described him as very abusive and threatening towards others. He was volatile and unpredictable.

[33] In September 2014, he was charged with breach of probation and possession of stolen property, both of which he pleaded guilty to on January 20, 2015. He was sentenced to 12 days of secure custody and six days of community supervision.

[34] Mr. Zand turned 18 in February 2015. On August 11th of that year, he was charged with carrying a concealed weapon. A witness observed him walking on Rideau Street in downtown Ottawa with a large kitchen knife concealed down the front of his pants. Police located and stopped him and found he had a 12" butcher knife tucked down the front right side of his pants.

[35] Two months later he took an overdose of Tylenol and was admitted to the Emergency Department of the Montfort Hospital. He was held on a Form 1 under the Mental Health Act, and then eventually kept on a Form 3 until the end of October 2015. In early December 2015, he took an overdose of Ativan and was again admitted to hospital on a Form 1.

[36] On January 20, 2016, Mr. Zand caused a disturbance at his mother's residence. The police were called, and he was escorted off the property.

[37] On January 22, 2016, Mr. Zand re-attended his mother's residence at just after 9 p.m. He yelled at the front door to be let in. He said he had a 9 mm handgun and was going to kill his mother and her partner, Stan Hansen. Ms. Shariat-Panahi and Mr. Hansen locked themselves in a room in the basement. Mr. Zand managed to break into the house and into the room where they were hiding. He was holding a large knife. Mr. Hansen picked up a chair to push him back. The knife fell. Mr. Hansen struggled with Mr. Zand and punches were thrown. Mr. Zand made death threats towards Mr. Hansen.

[38] Next door neighbours who were home heard a loud scream, followed by the accused saying, "I don't care if you're my fucking Mom, I am going to fucking kill you." Ms. Shariat-Panahi fled to the neighbour's home and called 911. She was distraught and bleeding from her head. She needed eight stitches. Mr. Hansen had only minor injuries.

[39] Mr. Zand was arrested and charged with attempted murder, assault with a weapon, uttering threats, break and enter, failure to comply with a probation order, mischief, and other offences. He was held in custody.

[40] When arrested, Mr. Zand made a number of utterances, including the following:

I hope she fucking dies, she's a fucking bum…Is my Mom dead? I hope I hit her right in the jugular…Did she die? I hope so. I'd rather do 25 years. I wasn't trying to attack Stan. Yes, I broke into the house, Stan attacked me first…I don't go around trying to kill people for no reason, only the ones who deserve it.

[41] On April 20, 2016, Mr. Zand was assessed, under s. 21 of the Mental Health Act, by Dr. Kunjukrishnan at the Royal Ottawa Hospital. Dr. Kunjukrishnan opined that Mr. Zand was fit to stand trial and was not suffering from any major psychiatric illness at the time of the offending in January 2016. He diagnosed Mr. Zand with: substance abuse, both drugs and alcohol; a probable diagnosis of chronic/complex PTSD secondary to childhood abuse; social anxiety; impulse control disorder/anger management problems; and antisocial personality traits/disorder. He suggested that Mr. Zand's quasi-psychotic symptoms were most likely related to his severe alcohol and drug abuse.

[42] Mr. Zand was before the court on May 19, 2016, on the charge of carrying a concealed weapon as well as the charges of attempted murder and assault with a weapon. He entered a guilty plea to the concealed weapon count. He was unable to enter a guilty plea to the other charges because he was unable to remember much of the incident at his mother's. He entered a plea of not guilty, but it was the functional equivalent of a nolo contendere plea. Brief evidence was called by the Crown and not contested by Mr. Zand. A finding of guilt was quickly made. Mr. Zand was then sentenced globally to three-and-a-half years imprisonment, less six months credit for pre-sentence custody. Mr. Zand thus entered the federal prison system for the first time.

[43] Mr. Zand had a preliminary assessment prior to entering the federal prison system and while he was still in custody at the Ottawa Carleton Detention Centre. He was assessed as a medium security risk. The assessment identified that he had a high need for improvement in the areas of substance abuse, personal/emotional orientation, and attitude.

[44] He arrived at Joyceville Institution's assessment unit on June 2, 2016, but shortly thereafter was transferred to the Regional Treatment Centre at Bath Institution as a result of ongoing mental health concerns. He eventually participated in an intake interview at Joyceville on July 25, 2016. During the interview, Mr. Zand frequently became very agitated and angry when discussing his mother and the fact that he had been in the care of the CAS. It was apparent that he continues to feel deeply hurt by and aggressive toward his mother.

[45] A dynamic factor assessment conducted as a part of his intake noted that Mr. Zand has poor coping skills and that he turns to alcohol and drugs as a coping mechanism. It suggested that he had significant skill deficits in the personal/emotional domain, and that he lacked consequential thinking and problem-solving skills. These deficits tended to be aggravated by Mr. Zand's underlying mental health concerns.

[46] It was recommended that Mr. Zand take a non-intake multi-target primer course and that he participate in the high intensity multi-target Integrated Correctional Program Model ("ICPM"). The goals of these programs included confronting Mr. Zand's deeply engrained criminal attitude, his substance abuse problem, and his mental health concerns. Mr. Zand completed the ICPM program over the course of his sentence. It was 91 sessions in all. By all accounts, he did well in the program.

[47] Katerina Pestikova is a Correctional Service Officer. She testified for the Crown as part of the dangerous offender application. She explained that, as a federal prisoner, Mr. Zand was entitled to apply for full parole after serving one-third of his sentence. He had an option of applying for day parole six months prior to his full parole eligibility date. His statutory release date was designated at the two-thirds point of his sentence.

[48] According to Ms. Pestikova, it is very rare for an inmate to be held past their statutory release date. It would only happen if the Parole Board decided the inmate was likely to commit an offence causing death or serious bodily harm, a sexual offence involving a child, or a serious drug offence. Additionally, there would have to be an absence of services in the community to manage the offender's risk.

[49] Mr. Zand did not apply for day parole when first entitled to. He first applied for full or day parole on July 27, 2017. A hearing date was set for early January 2018. In the meantime, his Case Management Team prepared a report for the consideration of the Parole Board.

[50] Mr. Zand's parole application was not supported by the Case Management Team. Several factors supported their position:

(i) Mr. Zand was proposing a release to Ottawa. He expressed a desire to be nearer to his family. But his mother wanted no contact with him. There were obvious concerns for the safety of his mother, who was the victim of the attempted murder. The Ottawa Police Service did not support a release to Ottawa;

(ii) No community residential facility (i.e. a privately run half-way house) was prepared to take him given his significant mental health issues;

(iii) Mr. Zand continued to be assessed as having a high need for improvement in the area of substance abuse. He had moderate need of improvement in the areas of personal/emotional, marital/family, community functioning, and associates and attitudes. His risk of recidivism remained high; and

(iv) Mr. Zand's institutional behaviour had been problematic at times. He had incurred five minor institutional charges, including pressing the cell alarm in a non-emergency (2x), refusing urinalysis after becoming ill upon ingesting an unknown substance, being in possession of matches and a striker, and diverting medication.

[51] Mr. Zand's parole application was denied on January 4, 2018. The Parole Board found that he presented an undue risk to society if released. Concerns were expressed about his documented anger issues, PTSD, and deeply entrenched substance abuse issues. He had used illicit drugs while in custody. He has numerous mental health diagnoses which impact the likelihood that he would return to substance abuse and re-offending. His actuarial risk assessment score indicated a high risk of recidivism. The Parole Board set a list of conditions that would apply should he be granted parole on his statutory release date, which was set for May 19, 2018.

[52] Mr. Zand reacted poorly to the Parole Board's decision. He threatened to kill another inmate and to harm others. At the time, he was at the Regional Treatment Centre at the Bath Institution. As a result of his threats, he was found to be incompatible at Bath and was involuntarily moved to Beaver Creek.

[53] Mr. Zand was eventually released on parole on his statutory release date of May 17, 2018. He was released to a Correctional Community Centre called Henry Trail in Kingston. His parole supervisor was Christy Ferguson. She met with him weekly. Within about a month, she was expressing concerns that he was doing nothing with his time other than smoking marijuana and sleeping. In a file note on July 5, 2018, she wrote that "his attitude typically manifests in an argumentative and defiant presentation with lots of interruptions, dismissive responses, and no concern for the opinions of others."

[54] At any rate, Mr. Zand's release was short-lived. He was re-arrested and his release suspended on July 13, 2018 as a result of his misuse of prescription medications. A mental health nurse completed a medicine review for an upcoming psychiatric visit. He had been misusing his prescribed Clonazepam. He was also short six Adderall pills. Mr. Zand would later admit to Dr. Gray that he had been crushing that medication, which is a psychostimulant, in order to get a bigger "hit." One of his release conditions required him to take medications as prescribed. He was in breach of that condition.

[55] The Parole Board formally revoked his statutory release on October 16, 2018, finding that his risk was no longer considered manageable in the community. His release plan was vague and he had no control over his substance abuse issues.

[56] On October 18, 2018, he was charged with the institutional offences of (1) threatening to assault a corrections officer by throwing urine on him; and (2) breaking the sprinkler head in his cell causing the cell and range to flood. Both those charges were ultimately withdrawn.

[57] A Community Assessment Report was completed by Mr. Zand's Case Management Team on January 25, 2019. It reflects, in the following passage, that Mr. Zand's return to custody had not gone well:

Zand's return to custody has been described as tumultuous with the offender evidencing ongoing deficits with emotional regulation. Threats against staff, possession of a makeshift weapon and damage to property have required interventions including placement in segregation and behavioral contracts. Zand incurred institutional charges for threatening/assaulting staff and destroying property.

[58] Mr. Zand was statutorily released for a second time on January 31, 2019, again to Henry Trail Community Corrections Centre. Again, his release was short-lived.

[59] On March 19, 2019, Mr. Zand met with his caseworker and requested to see a doctor on an urgent basis. He said he had not slept in days and his mind was racing. He was in a highly agitated state and seeking a prescription for Clonazepam. His caseworker accompanied him to the Hotel Dieu Hospital in Kingston. He was referred by an emergency physician to the Kingston General Hospital for a psychiatric consultation. As the physician explained the situation to the caseworker, Mr. Zand became very agitated. He was eventually committed on a Form 1 under the Mental Health Act. When he learned he was being committed, he fled the hospital. His caseworker managed to reach him on the phone. Mr. Zand was hysterical. He threatened to kill everybody involved and hung up the phone. He eventually calmed down and returned to the hospital where he was taken into custody. He claimed he had manufactured the whole incident in an effort to obtain a prescription for Clonazepam.

[60] Mr. Zand was conveyed to Joyceville prison. He was held in custody until his warrant expiry on May 18, 2019.

[61] On August 8, 2019 Mr. Zand visited his mother, with her consent. During the visit he questioned why she had reported to the police that he may be a danger to her when released. And he asked that she provide him with $25,000 he believed he was owed from his grandmother's estate. When his mother refused, he became angry. He grabbed a steak knife and held it up in a threatening motion. He threatened to kill his mother. He grabbed her by the wrist, but she managed to break free and flee the home. He then fled the house with $2,000 in cash and drove off in his mother's vehicle.

[62] Mr. Zand later began to text his mother. He continued to demand $25,000 and he threatened to kill police officers. He was eventually apprehended at Montfort Hospital.

[63] His defence counsel requested a psychiatric evaluation, which was conducted by Dr. Helen Ward in the fall of 2019. She prepared a report dated November 29, 2019. She diagnosed Mr. Zand with the following: psychosis not otherwise specified – schizophrenia or bipolar disorder; complex PTSD; substance use disorder; and antisocial personality disorder. She opined that he would not qualify for the defence of not criminally responsible by reason of a mental disorder. She thought his offending against his mother was too "instrumental" and driven by his hostility towards her. She also thought his future risk could be mitigated through treatment of his psychotic disorder.

[64] Mr. Zand entered guilty pleas on February 26, 2020, to assault with a weapon, uttering a death threat to his mother, and taking a vehicle without consent. A global sentence was imposed, on a joint submission, of 1,029 days, less 300 days credit for pre-sentence custody, for a net of 729 days (i.e. two years less one day), plus three years probation. A recommendation was made that he be transferred to St. Lawrence Valley Correctional Institute ("SLVCI"), which offers treatment for mental health issues not otherwise readily available in other provincial correctional institutions.

[65] Mr. Zand arrived at SLVCI on March 11, 2020. He was discharged early, on September 24, 2020, as a result of his disruptive behaviour, including a fight with another inmate. On August 30, 2020, he had being playing cards with a fellow inmate, when a fight broke out between them. They exchanged punches and refused to separate when instructed to do so by a nurse. They were eventually controlled by corrections officers and placed into segregation.

[66] While at SLVCI, Mr. Zand was under the care of Dr. Colin Cameron. Dr. Cameron recommended that his treatment be terminated because of "recurrent verbal and physical aggression, gross insults, rules violations, and not following direction." In a discharge report, Dr. Cameron opined that Mr. Zand's previous reported psychotic symptoms were likely drug induced. There had been no evidence of psychotic symptoms throughout his stay at SLVCI.

[67] Mr. Zand otherwise remained in provincial custody until June 28, 2021, after which he began to reside with his brother in Bradford. He continued to do so until the index offences were committed on September 7, 2021. He was released on bail in relation to the index offences on November 16, 2021. He was required by his release conditions to live with a surety, Reza Hedayati, who lived in Gatineau, Quebec. He resided with Mr. Hedayati until October 2022, when he went back into custody, for reasons I will explain in a moment.

[68] Dr. Gray spoke to Mr. Hedayati as part of the assessment process. Mr. Hedayati advised that Mr. Zand used marijuana "more than he should" while they resided together. He knew Mr. Zand had several prescribed medications, but believed he was not taking them as prescribed. He was apparently not taking his anti-psychotic medication, Olanzapine, regularly because of concerns about weight gain associated with it. He also had some difficulty filling prescriptions.

[69] According to Mr. Hedayati, Mr. Zand's mental condition declined throughout the year they lived together. Mr. Zand, he said, complained of hearing voices and would sometimes ramble incoherently. Mr. Hedayati eventually pulled his surety as a result of a suicide attempt by Mr. Zand.

[70] Mr. Zand was, around that same time, charged with several further criminal offences, including: breach of probation (for having contact with his mother, which was prohibited), obstructing police, and mischief (for throwing a rock through his mother's window). On October 27, 2022, a witness observed Mr. Zand throwing rocks at her car windshield. She contacted the police. The police arrived and found Mr. Zand in distress. He was agitated, pacing and yelling that he would not go back to jail. When arrested, he provided a false name to the police. When placed in the police vehicle, he began to violently kick the rear window, and yelled profanities at the officers.

[71] Several days prior, he had attended at his mother's residence, contrary to the terms of his probation, demanding money and a hotel room. He threw a large rock through her living room window.

[72] Mr. Zand entered guilty pleas to all three charges on February 8, 2023, and was sentenced to six months in prison, less a credit for pre-sentence custody, for a net sentence of 24 days plus 24 months probation.

[73] Mr. Zand has been in custody from October 27, 2022 to today's date.

[74] During his time in federal custody, Mr. Zand had numerous disciplinary problems, including illicit drug use, disruptive behaviour, inmate fights, suicidal behaviour (including six suicide attempts), and damage to property. He appears to have had less disciplinary problems while in provincial custody, which include the assault against another inmate at SLVCI on August 30, 2020, and an assault on another inmate on November 11, 2021.

Dr. Gray's Assessment

[75] As I said previously, Dr. Gray prepared and filed a psychiatric assessment report pursuant to s. 752.1 of the Criminal Code. His report is dated September 9, 2024. He also testified at the sentencing hearing.

[76] Among other things, Dr. Gray reviewed Mr. Zand's psychiatric history. I will briefly review that history here. It includes Dr. Palframan's assessment in 2009, Dr. Kunjukrishnan's assessment in 2016, and Dr. Ward's assessment in 2019, all of which I have discussed.

[77] Dr. Gray also referenced a consultation Mr. Zand had with Dr. Floyd Wood, through the Virtual Corrections Clinic, shortly after his statutory parole was suspended for the first time. Dr. Wood noted that he "presented as paranoid" and engaged in bizarre behaviours such as talking to himself. Mr. Zand did not, however, endorse any psychotic symptoms at the time, though he appeared to be fixated on Clonazepam.

[78] Dr. Gray further referenced Mr. Zand's extensive involvement with the Department of Psychology throughout his federal sentence. He met with Drs. Rick Gordon and Cindy Hudson multiple times per week throughout his time in federal custody. A significant number of their sessions were responsive to disruptive or suicidal behaviour on Mr. Zand's part.

[79] Mr. Zand also met regularly with several psychiatrists throughout his federal sentence, including Drs. Hucker, Oliver, and Skladman, in order to manage his medications. He saw Dr. Hucker monthly from June 2017 to February 2018 and from May 2018 to August 2018, as well as on January 8 and 19, 2019. Dr. Hucker never indicated that he observed any evidence of psychosis. He did, however, note that he found Mr. Zand to have been manipulative in his attempts to obtain medications he wanted, particularly Clonazepam. He also regularly requested a prescription for Nabilone from Dr. Skladman. Nabilone is synthetic THC and is regularly sought out by the prison population.

[80] While at SLVCI, Mr. Zand was under the care of Drs. Huntington and Cameron. Dr. Cameron's discharge summary, as I noted earlier, said that he observed no signs of psychosis while Mr. Zand was a resident at SLVCI.

[81] On May 6, 2022, while Mr. Zand was on bail in relation to the index offences, he attended at the Montfort Hospital in Ottawa. He had an admission drug screen, which was positive for marijuana, opioids, and cocaine. He saw a psychiatrist, Dr. Mathilde Bergeron-Nobert. He was seeking specific medications. He denied psychotic symptoms. Dr. Bergeron-Nobert believed his symptoms were behavioural in nature and not psychotic, oriented towards secondary gain.

[82] Mr. Zand has been treated by Dr. Gunter Lorberg subsequent to his incarceration on the index offences.

[83] Dr. Lorberg's initial impression of Mr. Zand differed from some others' views. He believed Mr. Zand suffered from untreated psychosis. He placed significant reliance on the assessments of Drs. Kunjukrishnan and Ward, in which Mr. Zand described hallucinations. In October 2023, he started Mr. Zand on a trial of a powerful anti-psychotic drug known as Clozapine, which he believed could help with Mr. Zand's aggression and violence. He noted that Mr. Zand appeared highly interested in selecting medications that would be viewed favourably by any expert assessing his future dangerousness.

[84] Mr. Zand also saw another psychiatrist, Dr. Marie-Rose Phaneuf, while in custody on the index offences. He saw her on December 20, 2023 and January 17, 2024. She noted no evidence of psychosis.

[85] On January 11, 2024, Dr. Lorberg discontinued Mr. Zand's Clozapine because it was too onerous for nursing staff to obtain weekly bloodwork from him, which is a requirement of the manufacturer. He switched Mr. Zand to a combination of Aripiprazole and Olanzapine. In August 2024, Dr. Lorberg put Mr. Zand back on Clozapine.

[86] By way of summary, Dr. Gray documented that Mr. Zand had been variously diagnosed over the years with schizophrenia, schizoaffective disorder, drug-induced psychosis, bipolar disorder, social anxiety disorder, impulse control disorder, substance use disorders, antisocial personality disorder, borderline personality disorder, and ADHD. I would add to that PTSD.

[87] Dr. Gray went on to provide his own set of diagnoses. In doing so, he observed that diagnosing Mr. Zand is complicated by several factors, including:

(i) His tendency to exaggerate symptoms in order to obtain medications with the potential for abuse, including benzodiazepines, such as Clonazepam, and the synthetic THC, Nabilone;

(ii) He tends to avoid responsibility and shift blame. He attributes his criminal behaviour to mental illness; and

(iii) He endorses symptoms in almost all categories of psychiatric diagnoses, including mood, anxiety, trauma and psychotic symptoms. He is manipulative.

[88] That said, Dr. Gray provided a suite of diagnoses he believes the evidence most strongly supports. They include:

(i) Substance use disorders, specifically in relation to marijuana and opioids. He described this as the least controversial diagnosis;

(ii) Antisocial personality disorder, which is a common diagnosis in incarcerated males. This disorder reflects a "pervasive pattern of disregard for, and violation of, the rights of others" and is associated with impulsivity, irresponsibility, irritability and aggressiveness, a lack of empathy, deceitfulness, and a reckless disregard for the safety of self or others. Dr. Gray opined that Mr. Zand's personal history is consistent with all but the last two of these features. He said that a diagnosis of antisocial personality disorder is highly relevant to his opinions relating to the issues of future risk and the potential chronic nature of Mr. Zand's pattern of behaviour;

(iii) Borderline personality disorder, which is a disorder characterized by a pervasive pattern of instability in interpersonal relationships, self-image, and affect, and marked by impulsivity that begins in early adulthood. The criteria exhibited by Mr. Zand that tend to support this diagnosis include, in Dr. Gray's opinion: impulsivity; inappropriate, intense anger or difficulty controlling anger; recurrent suicidal behaviour; frantic efforts to avoid real or imagined abandonment; a pattern of unstable and intense interpersonal relationships characterized by alternating between extremes of idealization and devaluation; affective instability due to a market reactivity of mood; transient, stress-related paranoid ideation or severe dissociative symptoms; and possibly chronic feelings of emptiness; and

(iv) Post-traumatic stress disorder, which, while treatable, is also associated with an elevated risk of violence.

[89] Notably, Dr. Gray did not agree with others who have diagnosed Mr. Zand in the past with a primary psychotic disorder, such as schizophrenia. Others had pointed to Mr. Zand's reports of auditory and visual hallucinations as evidence of a psychotic disorder. Dr. Gray noted that visual hallucinations are uncommon in schizophrenia and, in any event, believes Mr. Zand has amplified his descriptions of visual hallucinations for exculpatory reasons. He also noted that it is common for individuals who experience dysregulated, intense anger to experience "voices" that fuel their anger. Mr. Zand reported auditory hallucinations while experiencing intense anger towards his brother and mother.

[90] Following his summation of diagnoses for Mr. Zand, Dr. Gray engaged in a risk assessment analysis. I will review his evidence in that regard in a moment, as I work through the factors engaged in the dangerous offender assessment.

[91] Having set out considerable background, including Mr. Zand's personal, criminal, institutional, and psychiatric history, I will proceed to consider the framework applicable to sentencings involving applications for dangerous offender designations.

The Legal Framework

[92] The Crown's dangerous offender application is one piece, albeit a significant one, in the context of the sentencing of Mr. Zand for the index offences. The application must be considered in the context of the principles and purposes of sentencing that apply to all offenders. See R. v. Boutilier, 2017 SCC 64, at para. 53. Those principles are set out in Part XXIII of the Criminal Code at ss. 718 to 718.2.

[93] Section 718 provides that the fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions that have one or more of the following objectives: the denunciation of unlawful conduct, deterrence - both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to the victims and the community, and the promotion of a sense of responsibility in offenders and an acknowledgment of the harm done.

[94] The importance of these individual objectives, and how they interact, varies from case to case. Identifying the principal objectives engaged in any given case is only a first step. The next step is to assess what sentence is necessary to meet those identified objectives. In making that assessment, the court is guided by the fundamental principle of proportionality. Section 718.1 of the Criminal Code directs that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[95] Proportionality, which the Supreme Court has described as "the sine quo non of a just sanction", engages two concepts: censure and restraint. See R. v. Ipeelee, 2012 SCC 13, at para. 37. As Justice LeBel instructed, a sentence must promote justice for victims and enhance public confidence in the administration of justice. At the same time, it should not exceed what is appropriate in light of the moral blameworthiness of the offender. The restraint principle directs the court to impose the least intrusive sentence and the shortest duration necessary to achieve a just, fit, and proportionate sentence.

[96] In dangerous offender applications, the assertion by the Crown is that public safety, expressed by the objective of separating the offender from society, should be given elevated emphasis, while the objectives of rehabilitation and deterrence play a significantly lesser role. Indeed, if a sentencing judge designates the offender as dangerous, Parliament has determined that protection of the public is of enhanced significance. As Watt J.A. observed in R. v. Spilman, 2018 ONCA 551, at para. 33:

This enhanced objective of public safety distinguishes proceedings under Part XXIV from those under Part XXIII and is of sufficient cogency to warrant sentencing dispositions beyond those ordinarily available for the predicate offence.

[97] Part XXIV of the Criminal Code sets out the dangerous and long-term offender regime. Of particular significance to this application are the provisions of ss. 753(1)(a)(i) and (ii) and ss. 753(4) and (4.1). Those sections provide as follows:

Application for finding that an offender is a dangerous offender

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

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

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

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

Sentence for dangerous offender

(4) If the court finds an offender to be a dangerous offender, it shall

(a) impose a sentence of detention in a penitentiary for an indeterminate period;

(b) impose a sentence for the offence for which the offender has been convicted — which must be a minimum punishment of imprisonment for a term of two years — and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or

(c) impose a sentence for the offence for which the offender has been convicted.

Sentence of indeterminate detention

(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

[98] Where a dangerous offender application has been brought, the sentencing hearing proceeds in two stages. See Boutilier, at para. 13. The first stage is the designation stage. Here, the sentencing judge determines whether the evidence supports a dangerous offender designation.

[99] Section 753(1)(a) requires the Crown to establish two elements, to the reasonable doubt standard, to obtain a dangerous offender designation:

(i) The predicate offence is a serious personal injury offence, as defined in s. 752; and

(ii) The offender must represent a threat to the life, safety or physical or mental well-being of other persons. This determination is based on evidence establishing a violent pattern of conduct within ss. 753(1)(a) or (b). See Spilman, at para. 26.

[100] The threat assessment involves a prospective assessment of risk. The Supreme Court held in R. v. Lyons, [1987] 2 S.C.R. 309, at para. 43, and confirmed in Boutilier, at paras. 26-27, that to establish that an offender represents a future risk to the life, safety or physical or mental well-being of other persons, the Crown must prove that:

(i) The predicate offence is part of a larger pattern of violence;

(ii) There is a high likelihood of harmful recidivism; and

(iii) The offender's violent conduct is intractable.

[101] The second stage of a dangerous offender proceeding is the penalty stage. Section 753(4) lists three dispositions available: an indeterminate sentence, a determinate sentence of at least two years, followed by a long-term period of supervision of not more than ten years, or a determinate sentence for the predicate offence.

[102] The provisions of s. 753(4.1), and the principles of proportionality and restraint more generally, provide guidance to the sentencing judge in determining the appropriate sentence. In short, less coercive sentencing options must be assessed and rejected before an indeterminate sentence in the penitentiary may be imposed. At para. 70 of Boutilier, Justice Côté described the appropriate framework to be applied as follows:

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

The Positions of the Parties

The Position of the Crown

[103] The Crown's position, summarized in their written submissions, is that Mr. Zand should be declared a dangerous offender and sentenced to an indeterminate term of imprisonment. They submit that the evidence adduced on the application inexorably leads to the conclusion that Mr. Zand poses, beyond a reasonable doubt, a threat to the life, safety, or physical or mental well-being of other persons.

[104] The Crown contends that Mr. Zand's future dangerousness is made out by way of either one of a pattern of repetitive behaviour, coupled with the likelihood that he will commit further violent offences through a failure to restrain his behaviour, or a pattern of persistent, aggressive behaviour showing a substantial indifference to the foreseeable consequences to other persons of his behaviour.

[105] There is no reasonable basis, the Crown says, to expect that anything less than an indeterminate term of imprisonment will provide adequate protection to the public, given the weight of the evidence adduced during the application.

[106] Should the Court disagree with the Crown's primary position and find that a sentence less than an indeterminate term of imprisonment will sufficiently attenuate the risk Mr. Zand poses to public safety, then the Crown seeks a dangerous offender designation with a lengthy determinate sentence and a ten-year period of supervision.

[107] In the final alternative, should the Court not be satisfied that Mr. Zand meets the criteria for a dangerous offender designation, he should be designated a long-term offender, under ss. 753(5) and 753.1 of the Criminal Code.

The Position of the Defence

[108] Defence counsel notes that Mr. Zand has spent considerable time in custody while awaiting his sentencing. He was taken into custody for the index offences on September 7, 2021 and held until released on bail on November 16, 2021 (a total of 41 days). He went back into custody on October 27, 2022 and has remained in custody since that time – a total of 1,078 days. His total pre-sentence custody in real days is therefore 1,119. Offenders are generally entitled to a credit of 1.5 days for each day of real pre-sentence custody in accordance with the principles of R. v. Summers, 2014 SCC 26. Mr. Zand has accordingly accumulated pre-sentence credit of 1,617 days, or roughly 54 months to today's date. His counsel says that is long enough. He argues that absent the Crown's dangerous offender application, Mr. Zand may have been sentenced to between three and six months in custody for the index offences.

[109] Turning specifically to the elements of a dangerous offender designation, the defence position is essentially two-pronged. First, the defence argues that the index offences are not part of a repetitive pattern of violent behaviour. It has not been Mr. Zand's choice to act out violently. Properly characterized, the index offences are not part of a pattern but represent one of several breakdowns Mr. Zand has experienced in relation to his mental health, resulting from misdiagnoses and an insufficient treatment regimen.

[110] Second, the defence submits that, considering Mr. Zand's more recent treatment regimen, and his plan for future treatment, the risk of recidivism has been attenuated, such that it cannot be said to be highly likely. Moreover, his tendency towards violent conduct is not intractable. It is inextricably bound up with his mental health issues and those are now, for the first time in his life, being adequately addressed.

[111] The argument that Mr. Zand's risk of recidivism is reduced as a result of his current treatment regime applies in equal measure at both the designation and penalty phases. Should the court designate Mr. Zand as a dangerous offender, the treatment he is now receiving for his primary psychosis supports a reasonable expectation that his behaviour can be sufficiently controlled in the community such that he will not pose a risk to public safety.

The Live Issues

[112] The positions of the parties, in the context of the governing legal principles, raise the following issues for determination by the court:

(i) Was Mr. Zand convicted of a serious personal injury offence?

(ii) Are the offences for which Mr. Zand has been convicted part of a larger, repetitive pattern of violent behaviour?

(iii) Is there a high likelihood of harmful recidivism?

(iv) Is Mr. Zand's violent conduct intractable?

(v) What sentence is appropriate in all the circumstances?

[113] I will consider these live issues in turn.

Discussion

(i) Was Mr. Zand convicted of a serious personal injury offence?

[114] This is the easiest of the live issues to address. Section 752 of the Criminal Code defines a serious personal injury offence as an indictable offence involving the use or attempted use of violence against another person, for which the offender may be sentenced to imprisonment for ten years or longer.

[115] Mr. Zand was convicted of, among other offences, assault with a weapon, which is undoubtedly an offence involving the use of violence against another person. The maximum sentence applicable to the offence of assault with a weapon is ten years.

[116] Mr. Zand fairly concedes, and I conclude, that the predicate offence – assault with a weapon – is a serious personal injury offence.

(ii) Are the offences for which Mr. Zand has been convicted part of a larger, repetitive pattern of violent behaviour?

[117] Crown counsel must establish, to the reasonable doubt standard, that Mr. Zand poses a threat to the life, safety, or physical or mental well-being of other persons because of a violent pattern of conduct within either s. 753(1)(a) or (b). See Spilman, at para. 26. Section 753(1)(b) involves sexual offending and does not apply here. I am satisfied beyond a reasonable doubt, however, that the Crown has established the requisite pattern under both ss. 753(1)(a)(i) and (ii).

[118] I appreciate the defence argument that Mr. Zand's conduct has been driven by, or has been a manifestation of, his insufficiently treated mental illness. In my view, however, the explanation for his past conduct is not relevant to the question of whether that conduct evidences a repetitive pattern of violent behaviour.

[119] The evidence is quite persuasive, in my view, that Mr. Zand has had serious issues with anger, aggression, and violent outbursts over a period of at least fifteen years. For instance:

• In March 2009, Mr. Zand, then aged 12, was placed at a Youth Service Bureau facility in Ottawa following an incident of physical aggression with his mother;

• In June of 2009 he had a physical altercation with another child at school, resulting in police involvement. It led to Mr. Zand going into CAS care;

• In December 2011, he caused significant damage to the home of his foster family and became verbally aggressive to his foster parents. The police were called and Mr. Zand was arrested;

• In June 2012 he was placed by the CAS back into his mother's home but he continued to have violent outbursts and he caused damage to her home;

• Throughout 2014, he was evicted from successive group homes due to abusive and threatening conduct toward others;

• In August 2015, he was charged with (and later convicted of) carrying a concealed weapon, namely a 12-inch butcher knife, in downtown Ottawa;

• In January 2016, he attacked his mother and her common law spouse with a knife in an attempt to murder them. He was subsequently convicted of attempted murder and assault with a weapon and sentenced to 3 ½ years in the penitentiary;

• When his application for parole was denied in January 2018, Mr. Zand threatened to kill another inmate and to harm others;

• Similarly, when his parole was suspended in January 2019, he threatened staff and damaged his cell;

• In August 2019, less than three months after his release from the penitentiary, Mr. Zand threatened to kill his mother while armed with a knife. He was charged with, and eventually convicted of, assault with a weapon. He was sent to SLVCI for treatment as part of his sentence but discharged early due to, amongst other things, fighting with another inmate;

• On October 22, 2022, he threw a rock through his mother's front window;

• On October 27, 2022, he was arrested for throwing rocks at a woman's car windshield. When placed in a police cruiser, he began to violently kick the rear window; and

• On September 7, 2021, he committed the index offences by threatening to kill his brother and chasing him with a knife.

[120] There is no doubt that Mr. Zand's history reflects repetitive instances of violent outbursts. His angry and violent outbursts have caused harm to others and landed him in legal difficulty on a regular and ongoing basis since he was 12 years old.

A Pattern of Repetitive Behaviour

[121] Pursuant to s. 753(1)(a)(i) the Crown may prove that an offender constitutes a threat to the life, safety or physical or mental well-being of other persons with evidence establishing a pattern of repetitive behaviour showing a failure to restrain his behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his behaviour.

[122] In R. v. Szostak, 2014 ONCA 15, at para. 56, leave to appeal refused, [2014] S.C.C.A. No. 300, Rosenberg J.A. re-affirmed the meaning ascribed to the phrase "a pattern of repetitive behaviour" by the Court of Appeal in R. v. Hogg, 2011 ONCA 840. In particular, he affirmed that the pattern, including the predicate offence, must "contain enough of the same elements of unrestrained dangerous conduct to be able to predict that the offender will likely offend in the same way in the future." The offences do not, however, need to be the same in every detail.

[123] In its recent decision in R. v. Wong, 2023 ONCA 118, at paras. 36-37, leave to appeal refused [2023] S.C.C.A. No 302, the Court of Appeal again endorsed the Hogg definition of the phrase "pattern of repetitive behaviour." The court emphasized that s. 753(1)(a)(i) requires a pattern of repetitive behaviour and not a pattern of repetitive offences. See also R. v. Ahmed, 2023 ONCA 676, at paras. 117-122.

[124] Mr. Zand has had a long history of unrestrained, dangerous conduct. Three incidents in particular stand out as notably unrestrained and similar in nature. They include the two assaults with a knife on his mother and one assault with a knife on his brother.

[125] Mr. Zand clearly has unresolved anger issues with his brother and, especially, his mother. And he has unresolved mental health issues that, together with his substance abuse issues, are bound up in his offence cycle.

[126] The January 2016 assault with a knife was undoubtedly the most serious and led to Mr. Zand's penitentiary sentence. Within three months of his full parole, he again assaulted his mother with a knife in her home and found himself back in custody. The assault was accompanied by a death threat, which his mother undoubtedly took seriously. Less than three months after being released from custody on the second assault with a weapon, he assaulted his brother with a weapon. This offence occurred in his brother's home and was also accompanied by a death threat, which his brother took seriously.

[127] These three offences, particularly considered in the context of Mr. Zand's behaviour over the past 15 years, not only demonstrate a pattern of repetitive unrestrained dangerous behaviour, but they enable the court to predict with considerable confidence that Mr. Zand is likely to behave in the same way in the future.

[128] As Dr. Gray identified, all of Mr. Zand's violent offences, and indeed all of his violent outbursts, appear to be impulsive and fueled by intense feelings of anger, often amplified by substance abuse. Mr. Zand continues to have unresolved substance abuse problems and unresolved mental health issues. He has been unable to restrain himself even when subject to release conditions.

A Pattern of Persistent Aggressive Behaviour

[129] Pursuant to s. 753(1)(a)(ii) the Crown may alternatively prove that an offender constitutes a threat to the life, safety or physical or mental well-being of other persons with evidence of a pattern of persistent aggressive behaviour showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour.

[130] In Wong, the Court of Appeal instructed, at paras. 51-52, that the test under s. 753(1)(a)(ii) does not depend on similarities among offences. Instead, it requires a pattern of aggressive behaviour that shows indifference to its impact on others. Aggressive behaviour does not require the use of physical force.

[131] A "substantial degree of indifference" to the consequences to others must be shown. In R. v. Dorsey, [2009] O.J. No. 5368 (S.C.J.), reversed on other grounds, 2012 ONCA 185, MacDonnell J. cited with approval, the following passage from the British Columbia Court of Appeal's decision in R. v. George, 126 C.C.C. (3d) 384, where the court described what the phrase "substantial degree of indifference" requires, at para. 23:

[If] indifference is to be determined only at the time of offence, the outcome will almost always be a foregone conclusion. An offender rarely measures the moral quality of his or her act at the time of a personal injury offence. In my view the attitude of the offender must be examined more broadly in order to fulfil what I take to be Parliament's intention; namely, to identify the truly evil personality type who has no compassion for others at any time.

[132] I would not describe Mr. Zand as "truly evil." But such a finding is not necessary within the Criminal Code's dangerous offender scheme. Mr. Zand's behavior has been, in my view, largely informed by substance abuse and mental health issues.

[133] I would agree that, focusing on the three incidents of assaulting family members with a knife, and specifically, Mr. Zand's state of mind at the time of the offences, it is a foregone conclusion that he acted with indifference to the consequences of his offending on his mother and brother. Somewhat unusually, we have direct evidence of Mr. Zand's state of mind at the time of the first attack on his mother. He made several utterances to the police which included the following:

I hope she fucking dies, she's a fucking bum…Is my Mom dead? I hope I hit her right in the jugular…Did she die? I hope so.

[134] I think the evidence is patently clear that he has been indifferent to the impact of his offending on his mother and brother. It would appear, frankly, that the needle has been pushed past indifference. I would conclude that Mr. Zand has not just been indifferent to the reasonably foreseeable consequences of his offending on his mother and brother, but that he intended to cause them harm.

[135] There is evidence, however, of a broader indifference to the reasonably foreseeable consequences of his actions on others. Mr. Zand has been described, since a young age, as having an "I don't care" attitude. He appreciates that his substance abuse has been a major contributor to his offending, yet he has not taken any serious steps to address it.

[136] His indifference is clearly manifested in some of his conduct. For instance, carrying a 12" butcher knife in his pants in downtown Ottawa. He could not have been unaware of the fear that conduct would generate in others. Knife attacks in public places in large cities are regularly in the news. Yet he did not care, or at least care enough not to do it.

[137] Mr. Zand's general indifference to the reasonably foreseeable consequences of his violent outbursts is supported by the diagnoses of Dr. Gray. In particular, there is strong evidence that Mr. Zand has an antisocial personality disorder, which is characterized by a pervasive pattern of disregard for and violation of the rights of others. Impulsivity and a lack of empathy are central features. While Mr. Zand has, at times, expressed remorse for his actions towards his mother, he frequently minimizes his behavior and deflects blame.

[138] To summarize, based on the evidence I have outlined, considered in the context of Mr. Zand's overall history of aggressive and violent behaviour, I am satisfied beyond a reasonable doubt that Mr. Zand constitutes a threat to the life, safety or physical or mental well-being of other persons based on each of the following:

(i) a pattern of repetitive behaviour, including the predicate offence, which shows a failure on his part to restrain his behaviour, and a likelihood that he will cause death or injury to other persons, or inflicting severe psychological damage on other persons, through a similar failure in the future to restrain his behaviour; and

(ii) a pattern of persistent aggressive behaviour, including the predicate offence, which shows a substantial degree of indifference on his part respecting the reasonably foreseeable consequences to other persons of his behaviour.

[139] It was unnecessary for the Crown to establish both a pattern of repetitive behaviour and a pattern of persistent aggressive behaviour. Either would have done. I am satisfied, however, that they have established both, to the reasonable doubt standard. I will go on to the next issue, which has to do with the likelihood of recidivism.

(iii) Is there a high likelihood of harmful recidivism?

[140] Given comments I have made already, it will be no surprise that I am satisfied beyond a reasonable doubt that there is a high likelihood of harmful recidivism. I have already concluded, to the reasonable doubt standard, that Mr. Zand constitutes a threat to the life, safety or physical or mental well-being of other persons given his pattern of repetitive unrestrained violent behaviour and the likelihood he will cause significant harm to other people through a failure to restrain his behaviour in the future. In effect, I have found that Mr. Zand continues to pose a real and present danger to life or limb. See Boutilier, at para. 35.

[141] That said, I will take a moment to consider Mr. Zand's past repetitive and aggressive behaviour in the context of the totality of the evidence regarding future dangerousness. As Côté J. observed in Boutilier, at para. 37, "[a] past pattern of violence is considered in the global assessment of an offender's future behaviour, which, in turn, is considered by the court in determining whether the offender constitutes a 'threat'."

[142] In addition to the violent offences Mr. Zand has committed, he also has a history of breaching court orders. I would conclude that he is all but ungovernable.

[143] The first entry on Mr. Zand's criminal record is a youth entry from January 25, 2012. He was convicted of mischief and failing to comply with a disposition. The disposition was a conviction for assault, for which Mr. Zand received a conditional discharge on November 30, 2010. He was on probation for twelve months. The mischief charge was incurred during the period of probation.

[144] On February 10, 2014, he was convicted of failing to comply with a recognizance. He had been previously released on an undertaking stemming from a charge of mischief in October 2023 to keep the peace and be of good behaviour. While on that undertaking, he broke into a number of townhomes under construction and caused damage to them.

[145] On August 11, 2015, Mr. Zand was arrested and charged with carrying a concealed weapon. He was released on bail. While on release he committed the attempted murder of his mother.

[146] As I have previously noted, he was released from custody twice on statutory releases, and both times breached the terms of his release, resulting in suspensions of his parole.

[147] On August 10, 2019, he was charged with assaulting his mother with a weapon, which he was convicted of on February 26, 2020. He was released on June 28, 2021, and subject to probation.

[148] While on probation, he committed the index offences, which include a breach of probation. He was charged with the index offences on September 7, 2021. He was subsequently released on bail.

[149] While out on bail he was charged with several other offences. He was convicted on January 5, 2023, of breaching his release order as a result of a related conviction for obstructing justice. And on February 8, 2023, he was convicted of mischief and breach of probation, specifically breaching a prohibition on contacting his mother.

[150] Suffice it to say, Mr. Zand has routinely breached release orders, probation orders, and parole provisions. There is no reason to believe that he is likely to abide by the terms of any further court orders.

[151] The question is not, however, whether he is likely to commit further offences when released. He is. The question is whether harmful recidivism is likely. The answer to that question is informed in part by Mr. Zand's past violent behaviour, which I have reviewed, and the expert opinion of Dr. Gray on prospective aspects of dangerousness, such as risk factors, statistical probabilities of recidivism, and treatment prospects.

[152] Dr. Gray utilized two actuarial risk assessment tools to aid in the assessment of Mr. Zand's risk to re-offend: the Psychopathy Checklist, Revised (the "PCL-R") and the Violence Risk Appraisal Guide, Revised (the "VRAG-R").

[153] As Dr. Gray explained, the PCL-R compares the test subject to the psychological construct of psychopathy, which consists of interpersonal, affective, and antisocial lifestyle factors. There is an established correlation between psychopathy and recidivism with violent or general offences.

[154] Mr. Zand's score on the PCL-R placed him in the 67th percentile compared to a sample of North American offenders. This placed him above average, but not quite high enough to qualify for the psychological construct of psychopathy.

[155] Dr. Gray further explained that the VRAG-R is used to assist in risk prediction of violent offenders through the identification of specific static or historical factors in the offender. Mr. Zand's score on this test put him in the highest of nine ascending risk categories. Indeed, his score was higher than 98% of those offenders in the study population assessed with this instrument. In other words, his score suggests he is a very high risk of violent re-offence. Of those offenders who share this category, some 76% re-offend in a violent way within five years of release and 90% re-offend in a violent way within fifteen years of release.

[156] In Dr. Gray's opinion, Mr. Zand's psychiatric diagnoses play an important role in the risk that he will violently re-offend. Recall that Dr. Gray diagnosed Mr. Zand with two personality disorders: antisocial personality disorder and borderline personality disorder. Both are, he said, fixed and inflexible. Antisocial personality disorder is particularly strongly associated with the risk of future violence.

[157] According to Dr. Gray, the risks posed by Mr. Zand's personality disorders are amplified by his substance abuse issues. His excessive use of marijuana can lead to paranoia. And through disinhibition, it may increase his already high levels of impulsivity.

[158] Mr. Zand's likely diagnosis of PTSD is also associated with an elevated risk of violence, particularly when coupled with substance abuse.

[159] To be fair, Mr. Zand's violence tends to be focused on his mother, though obviously his brother was a recent victim as well. While he has engaged in violent interactions with others, such as fellow inmates and a hospital security guard, these have been relatively low-level engagements. His serious incidents of violence have been focused on family members. Dr. Gray opined that the limited scope of potential future victims may potentially mitigate his high risk of violent re-offence.

[160] I am not convinced that, at the designation stage, a limited pool of reasonably likely future potential victims is a significant factor.

[161] In light of Mr. Zand's long history of aggressive and violent behaviour, his abject failure to follow court orders, his substance abuse issues, his diagnosed personality disorders, and the actuarial evidence that he represents a very high risk of further violent offending, I am satisfied beyond a reasonable doubt that Mr. Zand represents a likely (indeed high) risk of harmful recidivism, even if it is most likely to be directed at a limited pool of individuals.

[162] Before I leave the issue of harmful recidivism, I will briefly comment on the matter of treatability.

[163] Mr. Zand's core position on the dangerous offender application is that his historically violent behaviour has been strongly correlated with his mental health issues. He says those issues have not, until recently, been properly diagnosed or treated. He urges the court to find that with proper and ongoing treatment, his violent conduct is not intractable, and his risk of violent recidivism significantly attenuated.

[164] I am not persuaded that Mr. Zand's high risk of recidivism is significantly attenuated by evidence of treatability. Evidence of treatability has not undermined my conclusion that Mr. Zand presents a likely risk of harmful recidivism. I continue to be satisfied of that conclusion to the reasonable doubt standard. I will address the treatability issue further in my assessment of the issue of intractability.

(iv) Is Mr. Zand's violent conduct intractable?

[165] For the purpose of the dangerous offender regime, "intractable conduct" means conduct that the offender is unable to surmount. See Boutilier, at para. 27. The intractability of an offender's conduct is relevant at both the designation and sentencing phases. At the designation phase, the salient issue is the future threat posed by the offender. At the sentencing phase, the court must consider whether the future risk posed by the offender can be adequately managed outside of an indeterminate sentence. See Boutilier, at paras. 30-31.

[166] There are several factors that satisfy me, to the reasonable doubt standard, that Mr. Zand's violent conduct is intractable.

[167] First, his violent conduct has generally been impulsive and usually associated with substance abuse.

[168] The record is clear that Mr. Zand is unable to surmount his substance abuse problems. Given his past refusal to meaningfully participate in addictions counselling, one has to wonder whether he even has a desire to overcome his substance abuse issues. He reported to Dr. Gray that he has such a desire, but that stated desire is also bound up in a preoccupation over the prospect of a dangerous offender designation.

[169] Regardless of any desire to overcome his substance abuse issues, it is clear that Mr. Zand has, to date, been sadly unable to even come close to managing those issues. Despite actively and successfully participating in the high intensity multi-target Integrated Correctional Program Model while in federal custody, Mr. Zand immediately returned to substance abuse as soon as he was released on statutory parole.

[170] While on bail in relation to the index offences, Mr. Zand regularly used marijuana, according to his former surety. He also used other illicit substances. As I noted earlier, he attended the Montfort Hospital in Ottawa on May 6, 2022. An admission drug screen came back positive for marijuana, opioids, and cocaine.

[171] Given Mr. Zand's history, it would be terribly naïve to believe that he will not return to substance abuse as soon as he is released back into the community.

[172] Second, he has been diagnosed with two serious personality disorders. As Dr. Gray explained, these disorders are fixed and intractable and the factors that tend to lead Mr. Zand into violent offending – especially his substance abuse and his dysfunctional relationship with his mother – are "longstanding, entrenched and difficult to change with treatment interventions."

[173] I return to the issue of treatability.

[174] Treatability is recognized as a relevant factor at both the designation and sentencing phases of a dangerous offender application. As Justice Côté explained in Boutilier, at para. 45:

At the designation stage, treatability informs the decision on the threat posed by an offender, whereas at the penalty stage, it helps determine the appropriate sentence to manage this threat. Thus, offenders will not be designated as dangerous if their treatment prospects are so compelling that the sentencing judge cannot conclude beyond a reasonable doubt that they present a high likelihood of harmful recidivism or that their violent pattern is intractable […] However, even where the treatment prospects are not compelling enough to affect the judge's conclusion on dangerousness, they will still be relevant in choosing the sentence required to adequately protect the public.

[175] Mr. Zand's substance abuse and mental health issues have been well known for many years, though there have clearly been differences among mental health professionals regarding appropriate diagnoses. While in federal custody, he met frequently with psychologists and psychiatrists. He is reported to have had a solid relationship with the psychologists he interacted with on a weekly basis. None of that made any difference once Mr. Zand was released on parole. He immediately engaged in substance abuse.

[176] He has been unwilling or unable, during the periods he has been living in the community as an adult, to access ongoing treatments or programs to address his mental health and substance abuse issues.

[177] Mr. Zand has for some time been under the care of Dr. Lorberg. Dr. Lorberg did not provide a report, nor did he testify on the dangerous offender application. Nevertheless, there is evidence before the court that Dr. Lorberg has diagnosed Mr. Zand with untreated psychosis. He has prescribed the strong anti-psychotic medication, Clozapine, and Mr. Zand has been compliant with the dosage regime despite the fact that it has significant side effects.

[178] I accept, however, Dr. Gray's evidence that Mr. Zand is not suffering from any form of psychosis. I accept the rationale supporting his opinion as set out in his assessment report. It is supported by the discharge summary of Dr. Cameron, who treated Mr. Zand while he was at SLVCI. Dr. Cameron's opinion was that Mr. Zand's previously reported psychotic symptoms were most likely drug-induced, so he stopped an anti-psychotic medication Mr. Zand had been taking. Notwithstanding the cessation of that medication, Mr. Zand did not manifest any psychotic symptoms even months after the medication was stopped.

[179] As Dr. Gray pointed out, if there is no underlying psychosis, the anti-psychotic drugs being taken by Mr. Zand may have some sedative effect but will not be a long-term solution to his pattern of aggressive and violent behaviour.

[180] Even if Mr. Zand has an underlying psychotic disorder, his willingness and ability to maintain a regular treatment regime while in the community is suspect. He has not previously maintained prescription medicine regimes while out of custody. He claims he is presently motivated, but he also admits that he is motivated by secondary gain – specifically, avoiding a dangerous offender designation by complying with Clozapine.

[181] At present, one can do little more than speculate – or hope – that Mr. Zand would continue to comply with any prescribed treatment regime while in the community and that the prescribed treatment is actually addressing a core risk factor. Even then, ongoing treatment for an underlying psychosis will not resolve Mr. Zand's other significant mental health issues, which include an entrenched substance abuse problem and serious personality disorders.

[182] Considering the totality of the prevailing circumstances, I am satisfied beyond a reasonable doubt that Mr. Zand's violent conduct is intractable.

[183] In summary, Mr. Zand has a history of aggressive, impulsive, and violent behaviour, stretching back fifteen years. He has engaged in a repetitive pattern of violent behaviour involving assaulting his family members with a weapon, specifically a knife. He has deeply entrenched substance abuse problems. And he suffers from a number of mental health issues, most notably antisocial personality disorder. Actuarial evidence situates him at a very high risk of violent re-offence. Though there is some prospect that a reasonably recent anti-psychotic treatment program may attenuate his risk of re-offence, the success of that program has not been tested in the community. Moreover, I am not persuaded that Mr. Zand in fact has an underlying psychosis. Finally, this recent treatment focuses on just one of Mr. Zand's several serious mental health issues. In all the circumstances, I am satisfied beyond a reasonable doubt that Mr. Zand constitutes a threat to the life, safety or physical or mental well-being of other persons based on the factors I have reviewed.

[184] Section 753(1) of the Criminal Code compels me in the circumstances to find that Mr. Zand is a dangerous offender and I do so find. I proceed next to the penalty phase.

(v) What sentence is appropriate in all the circumstances?

[185] Having found Mr. Zand to be a dangerous offender, s. 753(4.1) of the Criminal Code directs me to impose an indeterminate term of imprisonment unless I am satisfied that a lesser measure will adequately protect the public against the commission by him of murder or a serious personal injury offence. Those lesser measures are set out in ss. 753(4)(b) and (c) and include:

(b) a sentence for the offences which Mr. Zand has been convicted of, which must be a minimum of two years, and an order that he be subject to long-term supervision for a period that does not exceed ten years; or

(c) a sentence for the offences for which Mr. Zand has been convicted.

[186] In Boutilier, the Supreme Court endorsed a "ladder" approach. The first rung requires the court to consider whether a conventional sentence for the predicate offence, which may include a period of probation, is adequate to protect the public against the commission of murder or a serious personal injury offence. If it is, then the conventional sentence must be imposed. If not, the court moves to the next rung of the ladder.

[187] The second rung requires the court to consider whether a minimum two years of imprisonment followed by a period of supervision of up to ten years is adequate to protect the public. If it is, then it is the sentence that must be imposed. If not, then the final rung of the ladder is reached, and an indeterminate sentence must be imposed.

A Conventional Sentence is Not Adequate

[188] Counsel spent relatively little time addressing what a conventional sentence might look like, although as I mentioned, the defence position is that, with credit for pre-sentence custody taken into account, Mr. Zand has already served any reasonably fit and just sentence that might be imposed absent a dangerous offender designation.

[189] I convicted Mr. Zand of four offences. Of those, the predicate offence – assault with a weapon – is the most serious. Pursuant to s. 267 (a) of the Criminal Code it carries a maximum sentence of ten years imprisonment. There is no minimum sentence.

[190] It is difficult to pin down an appropriate range of sentence for the offence of assault with a weapon because the offence can take place within such a broad range of conduct. In Mr. Zand's case, there is also a complex mix of aggravating and mitigating circumstances such that the search for a similar offender committing a similar offence in similar circumstances is always going to be a very difficult exercise. More helpful, in my view, is to consider Mr. Zand's past convictions for similar offences and the sentences that were imposed. Obviously, the first assault with a weapon was more serious than the predicate offence because it involved an attempted murder. But the second assault with a weapon, where Mr. Zand grabbed his mother by the wrist and threatened to kill her while armed with a knife, is closer to the mark.

[191] Mr. Zand was sentenced, on a joint submission following a guilty plea, to two years less one day in custody, on top of 300 days credit for pre-sentence custody. In other words, the gross sentence was 1,029 days or just over 34 months. The step principle, which involves progressive sentencing as an aspect of deterrence, would suggest that the sentence for the predicate offence should be somewhat higher than Mr. Zand's last sentence for a similar offence, given that the prior sentence evidently failed to deter Mr. Zand.

[192] An incremental increase would suggest that a conventional sentence for the predicate offence, had there been no dangerous offender designation, would be in the range of about three years, though to that I would add on six months consecutive for the breach of probation, while making any other sentences imposed for the remaining two convictions concurrent.

[193] In other words, but for the dangerous offender designation, I would sentence Mr. Zand to a global sentence of 42 months, which he is now in a time-served position on.

[194] That said, Watt J.A. made it clear in Spilman that, following a dangerous offender designation, the court is not restricted to imposing a sentence that would be appropriate in the absence of the designation. He explained his reasons for that conclusion at paras. 33-38.

[195] I could accordingly sentence Mr. Zand to up to 10 years in custody for the predicate offence. In theory, one or more of the other index offences could be imposed consecutively but that would make little difference to my ultimate conclusion.

[196] As I noted, Mr. Zand has accumulated roughly 54 months credit for pre-sentence custody. He is probably entitled to some enhanced credit for the particularly harsh conditions of his pre-sentence custody, so for the sake of this analysis, I will round off his net sentence to roughly 60 months, if a 10-year sentence was imposed. He would be eligible for full parole in 20 months and statutory parole in 40 months. The warrant expiry date would follow not long after and Mr. Zand would then be in the community with no conditions or restrictions.

[197] What is especially important in managing Mr. Zand's future risk is how he behaves when in the community. His history to date has been poor. He will need intense and continuous supervision for a lengthy period upon his release, whenever that occurs. A determinate sentence, with nothing more, is, in my view, patently inadequate to attenuate the risk that Mr. Zand would commit another serious personal injury offence if released.

[198] The real issue here is whether an indeterminate sentence is necessary or if a lengthy determinate sentence coupled with a period of supervision of up to ten years will adequately protect the public against the commission by Mr. Zand of the offence of murder or a serious personal injury offence.

An Indeterminate Sentence is Required

[199] Given that Mr. Zand's criminality, and the risk he poses to the public, are bound up in his substance abuse and mental health issues, the determination of whether something less than an indeterminate sentence will adequately protect the public turns largely on the prospect of successful treatment and risk reduction through behaviour management. The question is whether there is a reasonable expectation that the risks posed by Mr. Zand may be successfully controlled in the community within a determinate period of time. See R. v. Straub, 2022 ONCA 47, at para. 62.

[200] The court is called upon to conduct a thorough inquiry into the prospect of control in the community, based on the totality of the evidence tendered at the sentencing hearing. Neither party bears an onus to prove the adequate sentence one way or the other. See Boutilier, at para. 68.

[201] The relevant jurisprudence reflects a number of factors for the court to consider in the course of conducting its thorough inquiry. Hill J. observed in R. v. D.B., 2015 ONSC 5900, at para. 198:

There is no exhaustive menu of relevant factors for consideration as to whether an offender's future conduct is likely to be inhibited by normal standards of behavioural restraint. Important are the nature and circumstances of the predicate crimes, criminal history of the offender, the nature and duration and intensity of his or her mental disorder, treatability, profile of previous compliance with orders and release conditions, expert risk assessments respecting likelihood of reoffending, attitude and motivation of the offender, community capacity to adequately monitor and supervise the offender upon release, etc.

[202] Similar factors were identified by Watt J.A. in Straub, where he listed, at para. 64, the following considerations as relevant to the question of whether an offender's behaviour is likely to be manageable in the community: "evidence that the offender avoided treatment, failed to respond to or terminated treatment, breached court orders, lacked motivation, continued to be involved in high-risk conduct, had a serious personality disorder and was a high risk to engage in violent recidivism."

[203] Having considered the totality of the evidence adduced during the sentencing hearing, I am not satisfied that anything less than an indeterminate sentence will adequately protect the public. The most significant factors in my assessment are the following:

(a) I have no confidence that Mr. Zand's psychiatric issues are under control. He is presently being treated by Dr. Lorberg with a powerful anti-psychotic drug. I am not satisfied that he suffers from any form of psychosis beyond periodic drug-induced psychosis. It is impossible for me to know if Mr. Zand is simply being sedated by anti-psychotic medication or whether he is receiving effective treatment for an underlying psychotic disorder. Defence counsel urged me to put significant weight on Dr. Lorberg's treatment approach because he has spent a good deal more time with Mr. Zand than Dr. Gray did. But an important distinction between the two is that Dr. Gray authored an assessment report and Dr. Lorberg did not. Moreover, Dr. Gray testified at the sentencing hearing. Dr. Lorberg did not;

(b) I similarly have no confidence that Mr. Zand's treatment for mental health problems will extend into the community. The only treatment "plan" I have heard of, is that Dr. Lorberg is apparently prepared to continue to treat Mr. Zand if and when he is released from custody. I frankly do not know what that means. I do not know where Dr. Lorberg's practice is located, nor for that matter, where Mr. Zand would propose to reside if and when released;

(c) Mr. Zand, in any event, has a poor track record of compliance with prescribed medication and indeed, his track record suggests he abuses prescription medications. He has been compliant with taking Clozapine but there are valid concerns that he is doing so only because he believes it will help him with this dangerous offender application;

(d) Mr. Zand has other mental health problems that go well beyond the possibility of an underlying psychosis. He has a very entrenched substance use disorder. There is no evidence before me of any treatment plan designed to address that disorder if Mr. Zand is living in the community. He has participated in substance use treatment while in custody, but it has not been successful. He has refused to engage in any meaningful way in substance abuse programs in the community in the past;

(e) Mr. Zand also has two diagnosed personality disorders: antisocial personality disorder and borderline personality disorder. Personality disorders are notoriously resistant to treatment. I am not aware of any plan in place to address these disorders should Mr. Zand be released into the community. I do not even know if Mr. Zand is presently receiving treatment for these disorders. These personality disorders featured prominently in Dr. Gray's conclusion that Mr. Zand's risk of violent re-offence is intractable;

(f) Any prospect that Mr. Zand's mental health issues, including his problems with substance abuse, are treatable in the community, does not, in my view, rise above speculative hope, which is not sufficient to establish a reasonable expectation that the risks posed by Mr. Zand may be successfully controlled in the community. See Straub, at para. 63;

(g) I am not satisfied that Mr. Zand takes accountability for his actions, including in committing the index offences. He has a tendency to shift the blame for his offending and does not appear to me to be seriously motivated to address the root causes of his offending;

(h) Mr. Zand's past community supervision has been unsuccessful. He has breached his release terms on multiple occasions. He has committed further offences while on release and while on probation;

(i) The record before me is almost completely devoid of evidence regarding how Mr. Zand might transition to the community in a way that gives rise to a reasonable expectation that his risk is manageable in the community; and

(j) Mr. Zand would, if released, require high intensity treatment and nearly round-the-clock supervision. There is an absence of evidence before me as to whether there are sufficiently available resources and controls available in the community to adequately protect the public.

[204] In the result, I must impose an indeterminate sentence for the predicate offence, on Count one. Indeterminate does not mean permanent. As Ms. Pestikova testified, Mr. Zand will be eligible for full parole seven years after the date of his arrest and day parole three years prior to full parole eligibility.

[205] I sentence Mr. Zand on the balance of the index offences as follows:

(a) Count two – uttering death threats – one year imprisonment, time served plus one day;

(b) Count three – mischief – three months, concurrent, time served plus one day; and

(c) Count four – breach of probation – six months, concurrent, time served plus one day.

[206] I impose the following ancillary orders on Count one:

(a) A DNA order pursuant to s. 487.051 of the Criminal Code;

(b) A weapons prohibition for life pursuant to s. 109 of the Criminal Code;

(c) An order pursuant to s. 743.21 of the Criminal Code, prohibiting Mr. Zand, while in custody, from communicating directly or indirectly with Alborz Zand and Mitra Shariat-Panahi, except with their written revocable consent filed with the custodial facility; and

(d) An order, pursuant to s. 760 of the Criminal Code, that a copy of all reports and testimony given by all witnesses on this application, together with a copy of these reasons, and the reasons for judgment on the index offences, be prepared and forwarded to Correctional Service of Canada.

C. Boswell J.

Released: October 9, 2025