COURT FILE NO.: CR-21-50000397-0000
DATE: 20250221
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N: HIS MAJESTY THE KING - and - S. R.
Stuart Rothman , for the Crown
Ari Goldkind, for S.R.
HEARD: June 24-28, 2024, and January 9, 2025
Subject to any further order of a court of competent jurisdiction, an order has been made in this proceeding, pursuant to s. 486.4(1) of the Criminal Code, directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast or transmitted in any way. This ruling has been written in a manner that permits publication.
j.m. barrett j.:
RULING RE:
DANGEROUS OFFENDER DESIGNATION AND SENTENCING
Table of Contents
OVERVIEW ... 2
Procedural History . 3
Result 4
OFFENDING HISTORY .. 5
The Predicate Offences . 5
Criminal Antecedents . 5
MR. R.’s BACKGROUND .. 12
Personal and Family History . 12
Educational History . 13
Relationship History . 13
Employment History . 14
Substance Use History . 14
Medical and Psychiatric History . 15
Institutional History . 16
Supervision History . 17
PSYCHIATRIC EVIDENCE .. 18
Psychiatric Diagnosis . 18
Risk Assessment 21
Prognosis and Treatment 23
THE STATUTORY FRAMEWORK AND GOVERNING LEGAL PRINCIPLES . 25
The Designation Stage . 25
The Penalty Stage . 27
ANALYSIS: THE DESIGNATION STAGE .. 28
Serious Personal Injury Offence . 29
Pattern of “Repetitive” Behaviour: s. 753(1)(a)(i) 29
Pattern of Persistent and Aggressive Behaviour - s. 753(1)(a)(ii) 31
Future Risk and Intractability . 31
Conclusion on the Designation Stage . 33
ANALYSIS: THE PENALTY STAGE .. 33
CHARGE OF FAIL TO COMPLY WITH PROBATION .. 38
ANCILLARY ORDERS . 39
OVERVIEW
[ 1 ] Following a judge alone trial, I convicted Mr. R. of two counts of sexual assault and one count of fail to comply with his probation order. [1]
[ 2 ] Mr. R. is now before me for sentencing. Crown counsel has applied for an order declaring Mr. R. to be a Dangerous Offender. The parties agree that the criteria are met for Mr. R. to be designated a Dangerous Offender under both s. 753(1) (a)(i) and s. 753(1)(a)(ii) of the Criminal Code, R.S.C., 1985, c. C-46. The sole issue is the appropriate penalty. Specifically, whether an indeterminate sentence is the least restrictive measure available in the circumstances of this case.
[ 3 ] The Crown argues that an indeterminate sentence is the only sentence capable of addressing the high risk Mr. R poses. However, in the alternative, the Crown seeks a total sentence of 15 years’ imprisonment followed by a 10-year Long-Term Supervision Order (“LTSO”).
[ 4 ] Counsel for Mr. R. submits that Mr. R’s primary request is for a determinate sentence equivalent to time served paired with a 10-year LTSO. The time served to date is a total of 1,450 real days. Mr. R. has been detained in custody since his arrest on March 4, 2001. However, he incurred two convictions while in custody for which he was credited with 200 real days. Applying the 1.5 standard credit to the remaining 1,250 days, it is equivalent to 5 years and 50 days: R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575. Alternatively, counsel for Mr. R. urged the Court to impose a determinate sentence that would result in Mr. R. having a further 2 years of imprisonment, followed by a 10-year LTSO. Counsel for Mr. R. noted that the conditions of his pre-sentence custody have been particularly harsh. For instance, Mr. R. went as long as nine days without a shower, and the chilling temperatures at the Toronto East Detention Centre have been detrimental to Mr. R.’s overall well-being.
Procedural History
[ 5 ] Following Mr. R.’s convictions, the Crown applied, pursuant to s. 752.1 of the Criminal Code, to have Mr. R. assessed. On April 21, 2023, the order was granted on consent.
[ 6 ] Subsequently, on October 30, 2023, Dr. Alina Iosif provided a 47-page assessment report in which she opined that Mr. R. is at a “high” risk for future violent recidivism. This risk becomes “very high” in domestic situations. Dr. Iosif further opined that Mr. R.’s amenability to eventual control in the community was quite uncertain.
[ 7 ] On January 4, 2024, the Deputy Attorney General consented to instituting a proceeding to declare Mr. R. a Dangerous Offender.
[ 8 ] On June 17, 2024, Dr. Iosif produced an addendum to her report after she received and reviewed a further three volumes of records (approximately 1,400 pages) from the Crown. These records did not impact her previously stated opinion.
[ 9 ] At the four-day hearing, the Crown filed 11 volumes of documentary evidence which included:
(i) One volume containing Mr. R.’s criminal record and transcripts or synopses related to his convictions;
(ii) One volume of Mr. R.’s youth records;
(iii) Two volumes of records from the Ministry of the Solicitor General (i.e., probation records and records from provincial custodial facilities);
(iv) One volume containing victim impact statements and three pre-sentence reports from May 1996, October 2012, and December 2018;
(v) Two volumes of Mr. R.’s medical records from the Ministry of Community Safety and Correctional Services (“MCSCS”);
(vi) One volume of records from Correctional Service Canada (“CSC”); [2]
(vii) One volume of records from Canada Revenue Agency;
(viii) Two volumes of records from the Children’s Aid Society (Hamilton and Peel).
[ 10 ] At the hearing, the victim of the predicate offence, SB, read her victim impact statement. Her statement was also filed with the Court.
[ 11 ] The Crown called two witnesses: (i) forensic psychiatrist, Dr. Alina Iosif; and (ii) Gerald Kiers, from CSC who testified about community supervision and reintegration programs. Documents detailing such programs were also filed as exhibits.
[ 12 ] Mr. R. did not testify at the sentencing hearing. Nor did he call any evidence. However, he filed, as exhibits, over two dozen certificates confirming his completion of programs he has recently completed. Also, when given his right of allocution, Mr. R. expressed his desire to get on with his life.
[ 13 ] I have extensively reviewed and considered all of the evidence in its entirety. However, in the reasons that follow, I have not referred to all of the voluminous material filed.
Result
[ 14 ] I agree with the parties, that the Crown has proven all of the constituent elements of ss. 753(1) (a)(i) and (ii) of the Criminal Code beyond a reasonable doubt. Consequently, Mr. R. must be declared a Dangerous Offender. He has been convicted of a serious personal injury offence (“SPIO”). He is a threat to the life, safety, and physical or psychological well-being of others. Further, the evidence establishes the pattern of repetitive behaviour as required under s. 753(1)(a)(i) of the Criminal Code. I am satisfied that it shows 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. In addition, I find that the Crown has proven the requisite elements of s. 753(1)(a)(ii) of the Criminal Code beyond a reasonable doubt. Specifically, the Crown has established a pattern of persistent and aggressive behaviour, including the predicate offences, that shows a substantial degree of indifference by Mr. R. respecting the reasonably foreseeable consequences to other persons of his behaviour.
[ 15 ] With regard to disposition, I am satisfied that nothing short of an indeterminate sentence in a penitentiary will adequately protect the public from Mr. R. committing murder, or a SPIO, as required under s. 753(4.1) of the Criminal Code.
[ 16 ] As I will explain, these findings are based on the circumstances of the predicate offences; Mr. R.’s criminal history; his history of breaching court orders; his lack of insight into his offending behaviour; the psychiatric diagnoses relating to his personality structure (i.e., antisocial personality disorder and psychopathy); his relational violence; and his polysubstance use disorder which exacerbates his antisocial conduct.
[ 17 ] As I will also explain, I reject defence counsel’s position that the intermediate step of a LTSO is most appropriate as it will prioritize Mr. R.’s treatment and thereby adequately manage the risk he poses; an approach described as “treat the man, treat the problem”. In the circumstances of this case, the success of treatment is highly speculative. Nothing short of an indeterminate sentence is appropriate in this case.
OFFENDING HISTORY
The Predicate Offences
[ 18 ] Mr. R. was 38 years old at the time of the offences. I found that on March 1 and 3, 2021, he sexually assaulted SB. SB believes Mr. R. to be her biological father; Mr. R. appears not to share this belief. [3]
[ 19 ] At the time of the offences, SB was 16 years old. The offences occurred only days after SB had reconnected with Mr. R. SB grew up in foster care and was later adopted. In February 2021, prior to her attempted reunion with Mr. R., SB moved out of her adoptive parents’ home and began couch-surfing. On February 10, 2021, Mr. R. was released from custody and was living with his mother and brothers. [4] By mid-February 2021, Mr. R. invited SB to live with him. SB agreed and moved into Mr. R.’s basement bedroom room, where she shared his bed.
[ 20 ] In finding Mr. R. guilty, I accepted SB’s testimony that on March 1, 2021, after an evening of drinking and smoking weed, Mr. R. licked SB’s vagina and had vaginal intercourse with her. In his testimony, Mr. R. admitted to licking SB’s vagina and rubbing his penis on her vagina while masturbating to the point of ejaculation. He denied vaginal intercourse. I further found that on March 3, 2021, Mr. R. sexually assaulted SB by sexually touching SB as they laid in bed in a spoon position. Mr. R. denied any misconduct on March 3, 2021.
[ 21 ] Both incidents were a serious breach of trust. As a young homeless girl, SB was particularly vulnerable. Having been placed in foster care as an infant, SB had hoped to reconnect with the man she believed to be her biological father.
Criminal Antecedents
[ 22 ] Mr. R. has a lengthy criminal record. It spans more than two decades. Most of Mr. R.’s adult life has been spent in jail. The predicate offences were committed days after his most recent release from jail.
[ 23 ] In summary, Mr. R.’s criminal record contains 25 convictions for crimes of violence, 18 breaches of court orders, and numerous convictions for weapons and drug offences.
[ 24 ] The details of Mr. R.’s criminal record are as follows:
Offence Date(s)
Conviction Date
Offence(s)
Sentence
Nov. 11, 2002
2003-02-13
Carry concealed weapon Assault with intent to resist arrest Possession of a Schedule II substance Assault
Suspended sentence and 18 months’ probation on each charge (74 days’ pre-sentence custody)
Unknown [5]
2004-05-17
Theft under $5000
Suspended sentence and 12 months’ probation
April 1 – 30, 2003 – Feb. 3, 2005
2005-11-16
(1) Pointing a firearm (2) Assault with a weapon (3) Use firearm during commission of indictable offence (4) Assault cause bodily harm (5) Overcome resistance by choking (6) Possession of a loaded prohibited firearm (7) Uttering threats (8) Assault cause bodily harm (9) Assault with a weapon (10) Unauthorized possession of a firearm (11) Careless storage of ammunition (12) Disobey court order (13) Fail to comply with probation order
(1-2): 3 years and 11 months on each charge concurrent (9 months and 15 days’ pre-sentence custody) (3-6): 1 year on each charge concurrent but consecutive to sentence for (1-2) (7-13): 6 months on each charge concurrent s. 109 weapons prohibition order
Unknown
2011-06-20
Possession of a Schedule II substance
$100 fine
Dec. 3, 2011
2011-12-14
Uttering threats
78 days and 2 years’ probation (12 days’ pre-sentence custody) s. 110 weapons prohibition for 5 years
Sept. 24, 2011
2012-03-29
Harassing telephone calls
1 day and 3 years’ probation (92 days’ pre-sentence custody) s. 110 weapons prohibition for 10 years
May 28, 2012
2012-10-30
Utter threats Fail to comply with probation order (x2)
3 months and 3 years’ probation (5 months’ pre-sentence custody) s. 110 weapons prohibition order for 10 years
Unknown
2012-11-16
Fail to comply with probation order (x2)
6 months concurrent on each charge but consecutive to sentence being served
Nov. 16, 2012
2013-05-16
Fail to comply with probation order (x3)
1 day and 3 years’ probation concurrent (176 days’ pre-sentence custody)
Aug. 8 – 15, 2014
2014-09-08
Assault with a weapon Uttering threats Mischief under $5000
69 days and 18 months’ probation (credit for equivalent of 6 days’ pre-sentence custody) s. 110 weapons prohibition order for 5 years
July 5 – Aug. 20, 2015 and Dec. 5, 2015
2016-05-30
Assault Fail to comply with probation order (x2)
1 day and 1 year probation concurrent (6 months and 4 days’ pre-sentence custody) s. 110 weapons prohibition order for 10 years
Unknown
2016-05-30 [6]
(1) Fail to comply with probation order (2) Fail to comply with probation order
(1) 1 day concurrent (7 days’ pre-sentence custody) (2) 1 day concurrent (30 days’ pre-sentence custody)
Oct. 18, 2018
2018-12-06
Uttering threats
30 days intermittent and 2 years’ probation s. 110 weapons prohibition for 10 years
Dec. 21, 2018
2018-12-06
Uttering threats Fail to comply with recognizance [7]
30 days intermittent and 2 years’ probation concurrent (credit for the equivalent of 75 days pre-sentence custody) s. 110 weapons prohibition order for 10 years
Aug. 11, 2018
2019-03-07
Over 80
$1,200 fine and 1 year driving prohibition
March 29, 2019
2019-06-26
Uttering threats Fail to comply with probation order
15 days consecutive (credit for equivalent of 95 days’ pre-sentence custody)
July 16, 2019 – Nov. 2, 2019
2021-02-08
Criminal harassment Uttering threats Fail to comply with probation order (x2)
Suspended sentence and 2 years’ probation concurrent (credit for equivalent of 14 months of pre-sentence custody)
Oct. 30, 2019 – Nov. 1, 2019
2021-02-10
Criminal harassment
1 day and 3 years’ probation (credit for the equivalent of 300 days’ pre-sentence custody) s. 109 weapons prohibition order
Aug. 17 – 26, 2021
2022-06-17
Fail to Comply with order under s. 516(2) (no communication order while detained)
1 day (credit for the equivalent of 6 months’ pre-sentence custody)
Dec. 3, 2021 – Jan. 12, 2022
2022-10-24
Uttering threats
1 day (credit for the equivalent of 120 days’ pre-sentence custody)
[ 25 ] Mr. R also has a youth record. From the ages of 12 to 17 years, Mr. R acquired the following findings of guilt:
Offence Date
Offence(s)
Sentence
1996-05-07
Sexual Assault
Probation for 2 years
1997-04-24
(1) Theft Under $5000 (2) Fail to Comply with Disposition
Probation for 2 years
1998-06-24
B & E and Commit
Probation for 1 year
2001-03-07
Fail to Appear
Probation for 18 months
[ 26 ] Although his record is extensive, Mr. R. has only received one penitentiary sentence, nearly 20 years ago. On November 16, 2005, Mr. R was sentenced to imprisonment for 4 years and 11 months for 13 offences, including pointing a firearm; assault with a weapon; and assault cause bodily harm. This sentence was in addition to 9.5 months of pre-sentence custody for which Mr. R. was credited with the equivalent of 19 months.
[ 27 ] All of Mr. R.’s other adult convictions have typically resulted in short reformatory sentences after pre-sentence custody was credited. His offending history relates primarily to violence against female domestic partners or breaches of court orders.
[ 28 ] On this application, the Crown relies on Mr. R.’s criminal offending against females with whom he has any relationship, whether intimate or familial, as well as his disregard for court orders. Mr. R.’s convictions for offences involving domestic partners can be summarized as follows:
November 2002 : Mr. R. was charged with offences arising from an argument with his then intimate partner, Ms. AW, with whom he was in a relationship for four years. AW reported that one evening Mr. R. woke her up, grabbed her from behind, forced her to the ground and punched her in the face while yelling obscenities at her. A few days later, they argued again. Mr. R. pushed her, punched her breasts and stabbed her four times with a screwdriver. She had puncture wounds to her forearm and legs. [8]
November 2005 : On November 16, 2005, Mr. R. pleaded guilty to 13 offences stemming from several incidents that occurred over the course of his four-year relationship with Ms. SR – the mother of two of his children. Mr. R’s relationship with Ms. SR was abusive from the start. Mr. R. was a controlling and jealous partner. In April 2003, when Ms. SR was eight months pregnant with their first child, Mr. R. put the barrel of a sawed-off shotgun into Ms. SR’s mouth and said “I should just kill you”. In June 2003, Mr. R. punched Ms. SR. in the face with a closed fist, and smashed a beer bottle over her head. During an argument in December 2004, Mr. R. violently grabbed Ms. SR by the neck with both hands causing her to pass out. Ms. SR reported the abuse after an argument on January 28, 2005, during which a neighbour called 911. The argument spilled into the hallway outside of their apartment unit. When Ms. SR refused to return inside, Mr. R. pulled a loaded firearm from his waist and fired as Ms. R ran away. The bullet struck the door frame. As a result of this report, the police obtained a warrant to search the apartment. The search occurred on February 3, 2005. During the search, a loaded .32 calibre handgun was found in Mr. R.’s coat pocket. Mr. R. was arrested on February 3, 2005. On February 28, 2005, an order was made prohibiting Mr. R. from having any communication with Ms. SR as a term of his detention. On March 11, 2005, Mr. R. called Ms. SR from jail and left a threatening voicemail. Mr. R. was also on probation at the time. The sentencing judge stated that but for the joint submission, a “double digit” penitentiary sentence was appropriate. [9]
December 2011 : Mr. R. pleaded guilty to threatening his mother. The threat occurred on December 3, 2011, during a phone call. Mr. R. was annoyed when his mother went to pick up his then girlfriend but never returned. Mr. R. threatened to stab his mother and slash her throat.
March 2012 : Mr. R. pleaded guilty to making harassing phone calls to Ms. MD, whom he had been dating. The calls started on September 24, 2011, when Mr. R. repeatedly called MD and accused her of cheating. During one call, Mr. R. said “I’m here so open the door”. Ms. D. fled for safety to a nearby police station. Once at the station, Ms. D. received another call from Mr. R. and recorded it. In the recording, Mr. R. accused her of cheating and threatened to shoot her in the face, run her over with his car, and threatened the safety of her kids.
September 2012 : Mr. R. pleaded guilty to uttering death threats. The threats occurred just two months after Mr. R. was released from custody on March 29, 2012. While subject to two probation orders, one of which prohibited communication with Ms. D, Mr. R. sent text messages to Ms. D. in which he threatened to kill her. In one text, Mr. R. wrote, “I so fucking hope all of your stinking kids die bitch.” The author of the pre-sentence report prepared for Mr. R.’s sentencing on October 30, 2012 wrote, “it would appear the subject has difficulty managing his anger and lashes out, verbally and physically threatening anyone who he feels wronged him”.
May 2013: Mr. R. pleaded guilty to three counts of violating the terms of his probation orders by writing two letters to Ms. D. in November 2012. At the time, he was bound by three probation orders that prohibited any communication with her and required that he keep the peace and be of good behaviour.
September 2014 : Mr. R. pleaded guilty to assault with a weapon, utter threats, and mischief to property under $5,000.00 in relation to an assault on Ms. NS, a woman he started dating in April 2014. Mr. R. was verbally abusive from the outset of their relationship. In August 2014, Ms. S. learned of Mr. R.’s infidelity and confronted him. Mr. R. responded by threatening her with a knife. Mr. R. pointed the knife at her and said, “I should cut your throat”. About one week later, after she returned home in the early morning hours, Mr. R. said, “I’m going to shoot you”. On September 4, 2014, Mr. R. sent Ms. S. a text message in which he said, “I hope you and your whole fucking family die.” Ms. S. called the police. On September 5, 2014, while at the police station, Ms. S. received a phone call from Mr. R. in which he said, “you’re dead”. Mr. R. demanded that Ms. S. meet him outside. The police attended outside and arrested Mr. R. While in the rear of a police cruiser, Mr. R. kicked the rear driver’s side window, causing it to shatter.
May 2016, December 2018, June 2019, February 2021 : Mr. R. pleaded guilty to several offences involving Ms. KB and her mother, SM. Mr. R. and Ms. KB had been in a relationship for about five years and had one child together. Their relationship ended in 2017. Mr. R. admitted that in December 2015, he punched Ms. KB in the face two or three times during an argument over who she had been out with the night before. In June 2018, Mr. R. went to Ms. KB’s home and banged on the door. He was intoxicated. He threatened to kill Ms. KB’s mother because she called the police and reported that he was in breach of terms that he stay away from their residence. A warrant for Mr. R.’s arrest was issued. On October 18, 2018, Mr. R. turned himself in. He was released from custody on March 29, 2019. After his release, Mr. R. argued with Ms. KB. over child custody issues. In written texts, Mr. R. threatened, “I’m going to shoot you in the face” “I will pour gasoline under your door and burn you alive.” A warrant was issued for his arrest on March 30, 2019. Mr. R. was arrested on April 25, 2019. After his release, Mr. R. made repeated attempts to communicate with Ms. KB.
February 2021 : Mr. R. pleaded guilty to criminally harassing Ms. JI, a former intimate partner who ended their six-month relationship on October 9, 2019. After ending the relationship, Mr. R. called Ms. JI repeatedly and sent dozens of threatening text messages, including, “I’m gonna kill you”; “I’m gonna stab you up”; “You better run to the police”. Mr. R. also emailed Ms. JI’s daughter and threatened to hurt JI if his property was not returned.
[ 29 ] Mr. R. has been in custody since his arrest for the predicate offences on March 4, 2021. While in custody, he has incurred two new convictions. [10] One of the two new convictions involve the victim of the predicate offence, SB. On July 17, 2022, Mr. R. pleaded guilty to violating the terms of his detention order by calling SB eight times during the period of August 17 - 26, 2021. Each call was seconds in duration because Mr. R. would only say “hello”.
[ 30 ] The second new conviction relates to a non-intimate partner, Ms. AL. Between December 3, 2021, and January 12, 2022, Mr. R. wrote three letters to Ms. L. demanding money and threatening to send his “people” to her home or work if it was not paid. The letters were intercepted by staff at the Toronto South Detention Centre (“TSDC”).
MR. R.’s BACKGROUND
Personal and Family History
[ 31 ] Mr. R. was born on March 1, 1983. He is now 41 years old. He is a Canadian citizen. He was baptized Christian and attended Sunday school as a child. As an adult, he became a Rastafarian.
[ 32 ] Mr. R’s parents divorced when he was eight years old. His father was a violent husband who abused alcohol. Mr. R. witnessed this violence, including once when his mother was punched in the face, resulting in her hospitalization. Mr. R. also saw his father pull a gun on his mother. Mr. R. recalls being around seven years of age when he peed his pants out of fear after seeing his intoxicated father fire a gun off their balcony.
[ 33 ] Mr. R. had limited contact with his father after his parents separated. His father died of lung cancer in March 2013. [11]
[ 34 ] After the divorce, Mr. R.’s mother moved from Jane and Finch to Etobicoke. By the time Mr. R. was 11 years old, Mr. R.’s mother was in a common-law relationship with another man with whom she had two sons. Mr. R. regards his stepfather as a good role model. Mr. R.’s brothers attended college and have had no involvement with the law. Mr. R. left the family home when he was 16 years old.
[ 35 ] Mr. R. has had no contact with his two brothers since his arrest in March 2021. He believes his brothers are likely disappointed with him. Mr. R. declined to give permission to Dr. Iosif to speak with his brothers. He did consent to Dr. Iosif speaking with his mother, with whom he reported a good relationship. Dr. Iosif twice attempted to contact Mr. R.’s mother but contact was never made. [12]
Educational History
[ 36 ] As far back as Mr. R. attending kindergarten, there are reports of him engaging in aggressive behaviour, particularly when he did not get his own way. [13]
[ 37 ] From grade school, Mr. R. was enrolled in special education programs to address his learning challenges and inappropriate behaviour. Despite special programming and supports, a 1996 pre-sentence report states that Mr. R. “continued to disrupt, defy authority, and to pose himself a threat to other students”.
[ 38 ] By age 11, Mr. R. had been suspended several times. His 1996 pre-sentence report attributes the suspensions to “malicious unprovoked aggression toward both male and female peers”. At 9 years of age, Mr. R. hit a student’s head against the wall. At 11 years of age, Mr. R. was suspended after he threw an empty glass juice bottle at a girl as she walked ahead of him and was also involved in a fight with a male student whose head he repeatedly banged into a brick wall.
[ 39 ] From February to April 1996 – when Mr. R. was turning 13 – he was admitted to the J.D. Griffin residential program at Etobicoke Humber school. This placement was to provide a period of respite for Mr. R. and his mother. The 1996 pre-sentence report noted that Mr. R. had “difficulty adjusting to this intervention”. The placement resulted in “negligible” treatment gains. The author of the 1996 pre-sentence report described Mr. R.’s “worrisome and inappropriate behaviour” as reaching “a point that is unacceptable”.
[ 40 ] Mr. R. completed grade 9. Mr. R. dropped out of school when he was 15 years old, prior to completing the tenth grade. [14]
[ 41 ] As an adult, Mr. R. has engaged in some further education. During his federal incarceration, he engaged in schooling at Joyceville Institution and was found to have a “positive attitude”.
[ 42 ] Also, while on federal parole, Mr. R. took an autobody course at Mohawk College. In an Assessment for Decision dated March 16, 2010, Mr. R.’s motivation was described as “high”. However, Mr. R. withdrew from the program once his parole ended.
Relationship History
[ 43 ] Starting from when he was 15 years old, Mr. R. has had four significant relationships. His partners, all of whom are victims of his criminal offending history, are: Ms. AW; Ms. SR; Ms. DW; and Ms. KB.
[ 44 ] Mr. R. has five children. They range in age from 9 to 20 years old. Ms. SR is the mother of his two daughters. He has a son with each of the other three women. Mr. R.’s daughters do not speak with him. Mr. R. maintains contact with his three sons.
[ 45 ] Mr. R. informed Dr. Iosif that he has been single since 2020.
[ 46 ] As part of her assessment, Dr. Iosif spoke with Ms. AW – Mr. R.’s first intimate partner. Ms. AW denied any violence by Mr. R. and described Mr. R. as a “good man, good father, doesn’t hurt people, has lots of friends”. Dr. Iosif found Ms. AW’s information lacked credibility and therefore did not rely on this collateral information.
Employment History
[ 47 ] Mr. R. has a limited and sporadic employment history.
[ 48 ] During his assessment, Mr. R. told Dr. Iosif that he “always had a job” after he dropped out of school. However, his last employment ended in 2015. He spent three years with Max’s Seafood, filleting fish. This was his longest period of consecutive employment. Since then, he has been on Ontario Works which he supplements with stints as a DJ and by renting out his stereo equipment.
[ 49 ] In a pre-sentence report from October 2012 (when Mr. R. was 29 years of age), Mr. R.’s employment was described as “limited”. The report noted that Mr. R. worked for a short period of time at a processing plant and loading trucks. Occasionally, he worked with an uncle laying interlocking bricks. Mr. R. also supported himself by working as a disc jockey.
[ 50 ] In a transcript dated May 30, 2016, when Mr. R. pleaded guilty to offences involving Ms. KB, defence counsel advised the Court that during the last decade, Mr. R “found it difficult to find steady employment”. His most recent employment was for six weeks as a delivery person for The Brick. He was fired when his employer learned of his criminal record. His defence counsel advised that Mr. R. relied on social assistance to make ends meet until March 2015, when he found employment with Max’s Seafood. A letter from his supervisor at Max’s Seafood expressed a willingness to welcome Mr. R. back once he was out of custody. Mr. R. never returned to work after his release. Mr. R. explained to Dr. Iosif that he was embarrassed that he had been to jail.
Substance Use History
[ 51 ] Substance use has been repeatedly flagged as a core issue throughout Mr. R.’s criminal history.
[ 52 ] The correlation of alcohol to Mr. R.’s increased risk for future domestic violence was noted in a 2006 psychological assessment conducted while Mr. R. was at Joyceville Institution (i.e., when Mr. R. was 23 years old). The report reads:
Mr. [R] demonstrated limited insight with respect to issues related to domestic violence. He tended to externalize the blame. Anger management deficits and thinking errors were noted. His risk would be higher if he returned to alcohol use. He had to address anger issues and change the way he thinks about issues related to domestic violence.
[ 53 ] Records from June to September 2008, while Mr. R. was still at Joyceville, noted that Mr. R. attended and successfully completed the National Substance Abuse Program Moderate Intensity.
[ 54 ] Subsequently, on February 15, 2013, Mr. R. attended a life skills course on substance use while at Hamilton-Wentworth Detention Centre. However, in May 2016, during a sentencing hearing, Mr. R.’s counsel argued that the assault of Ms. KB. was due to Mr. R.’s “untreated drinking problem”.
[ 55 ] In a November 2018 pre-sentence report, Mr. R. acknowledged that his alcohol use was a contributing factor to his domestic violence. At that time, Mr. R. reported that he had abstained from alcohol consumption for the past four years but continued smoking a “pinner” while incarcerated.
[ 56 ] When asked by Dr. Iosif if he would consent to abstaining indefinitely from alcohol and cannabis consumption, Mr. R. replied “no”. He explained that he smokes cannabis “as meditation … ritual for cleansing.” As for his alcohol use, Mr. R. described himself as a “moderate” drinker. Although he started drinking when he was 15 years old, he reduced his consumption in 2015 after being diagnosed with diabetes.
[ 57 ] Since his arrest in March 2021, Mr. R. has not consumed alcohol. This has been his longest period of abstention.
Medical and Psychiatric History
[ 58 ] In 2015, at 32 years of age, Mr. R. was diagnosed with Type II diabetes. Mr. R. takes medication twice daily for his diabetes. He is also on medication for hypertension and atrial fibrillation.
[ 59 ] During his assessment with Dr. Iosif, Mr. R. reported a head injury from 2019 when the police “stomped” on his head. His institutional records show that this injury occurred on September 5, 2014. At that time, Mr. R. was treated at St. Joseph’s Hospital for a bump to his left forehead with mild discolouration. The injury occurred during Mr. R.’s arrest.
[ 60 ] During his assessment with Dr. Iosif, Mr. R. reported no family history of mental illness. Mr. R. denied being impulsive, a risk taker, easily bored, or manipulative.
[ 61 ] The records filed show that as a youth, Mr. R. was referred to counselling because of school behavioural issues. He stopped these sessions because he had “had enough”.
[ 62 ] A psychological risk assessment conducted while Mr. R. was at Joyceville Institution noted that Mr. R. reported two suicide attempts. One occurred at 13 years of age. The second occurred while at Millhaven. The assessment noted that Mr. R. scored in the “extremely low range with respect to general verbal intelligence”. The assessment further noted that Mr. R. had a personality style that involved a “degree of adventurousness, risk taking and a tendency to be impulsive”. Mr. R. was described as having “limited insight with respect to issues related to domestic violence. He tended to externalize the blame”. A June 20, 2006 note from a psychologist at Joyceville Institution stated that Mr. R. had been taking antidepressants since January 2006 (i.e., 23 years of age).
[ 63 ] Between 2019 and 2022, while at Maplehurst Detention Centre, Mr. R. reported auditory hallucinations and was diagnosed with Psychosis not otherwise specified and Post Traumatic Stress Disorder.
[ 64 ] In February 2024, Mr. R. was placed on suicide watch for one day. His institutional records show a history of suicidal ideation when under stress. Since his arrest on the predicate offences, Mr. R. has seen a psychiatrist for sleep issues and stress arising from being separated from his sons.
Institutional History
[ 65 ] Mr. R. has spent most of his adult life in custody. With one exception, all of his sentences have been in the reformatory range. During his adult life, it would appear that Mr. R. has never been out of custody beyond two consecutive years.
[ 66 ] Mr. R. has recently completed several programs. Between January 24 and June 11, 2024, Mr. R. received 30 Certificates of Completion in: life skills, anger management, substance use, stress management, problem solving, loneliness and anti-criminal thinking. I agree with defence counsel, that Mr. R. is to be commended on his recent efforts.
[ 67 ] However, this recent effort stands in contrast to incident reports of inappropriate conduct while detained on the predicate offences. The records show that while detained on the predicate offences, Mr. R. has incurred numerous convictions for misconduct. Some misconduct convictions stem from assaults on other inmates (including one in the shower that was captured on CCTV). Others relate to his disregard for females and authority figures. For instance, one finding of misconduct relates to an incident on March 19, 2022, when Mr. R. called a female guard a “stupid fucking bitch”.
[ 68 ] During past periods of incarceration, Mr. R. has participated in programs for intimate partner violence, anger management, and healthy relationships. His Certificates of Completion include:
• September 5, 2008: Certificate of Completion in the National Substance Abuse Program – Moderate Intensity
• September 2007 to March 2008: Certificate of Participation in the High Intensity Family Violence Treatment Program
• December 18, 2012: Certificate of Completion – Anger Management
[ 69 ] A decision sheet from the National Parole Board dated February 12, 2009, noted that although Mr. R. completed both the Violence Prevention Program and the High Intensity Family Violence Program “concerning deficits continued to exist”.
[ 70 ] In July 2013, Mr. R. was referred to the Partner Assault Response (“PAR”) Program. In October 2013, Mr. R. completed a telephone intake and was given an orientation date of November 14, 2013. He failed to appear. He similarly failed to appear for the PAR orientation session in December 2013 and February 2014. In March 2014, when asked about his absences, Mr. R. explained “I don’t want to attend the program that’s why”. When Mr. R. failed to attend a group session in May 2014, he received a written warning of his pending discharge. He crumpled up the notice and threw it in the garbage in front of the counsellor, advising that the group “is not a priority”. On June 18, 2014, Mr. R. received notification of his discharge from the PAR program.
[ 71 ] Subsequently, in a case plan dated May 11, 2021, Mr. R. expressed a willingness to attend programming as directed. Mr. R. said he wanted to make positive changes for his five children.
Supervision History
[ 72 ] Mr. R. has a long, well-documented history of failing to comply with court orders and re-offending while living in the community under supervision.
[ 73 ] Mr. R.’s record consists of 15 convictions for breach of probation and three for disobey court orders. Even during his detention on the predicate offences, Mr. R. breached the terms of his detention order by calling the victim eight times from the TSDC. This is consistent with his history of attempting to communicate with intimate partners contrary to court orders.
[ 74 ] Records from the MCSCS include the following:
February 25, 2002 : Mr. R.’s reporting habits while on probation were described as poor. There were concerns that Mr. R. was not completely honest with his probation officer.
September 9, 2002 : In a closing summary, it was noted that Mr. R. completed 18 months of community supervision without re-offending. His residence was “stable” and his work history “sporadic”. He completed 20 hours of community service and reported as required.
May 17, 2005 : In a closing summary, Mr. R. was found to be not suitable for future community supervision. Mr. R. re-offended while on probation. Mr. R.’s reporting was described as “poor” and his “attitude towards probation” was described as “very poor”.
May 26, 2017 : In a closing summary, Mr. R. was noted to have “responded without incident to current supervision”. Although he had a high (22) score on the LSI-OR, and was considered for the intensive supervision stream, he was removed from this stream. It was noted that Mr. R. completed the PAR program with a “satisfactory” performance. The author concluded that “although the offender completed basic requirements of his probation obligations, supervision did little to impact on [his] lifestyle or attitude and therefore future community supervision is not recommended”.
February 19, 2019 : Mr. R.’s probation officer wrote that Mr. R. “continues to manipulate/postpone any counselling, chemical dependency treatment, which is a repeating pattern of behaviour seen from the many whose tune changes after incarceration is over”.
December 7, 2020 : Mr. R.’s probation officer swore an affidavit in which he stated that on December 6, 2018, Mr. R. was placed on a two-year probation order. Mr. R. reported regularly until July 17, 2019. Mr. R. was to report on August 8, 2019, but called to reschedule as he had an opportunity to go “up north fishin”. On his next reporting date of August 13, Mr. R. called and explained he could not report because he knew of outstanding charges as the police had been to his mother’s home. On August 19, Mr. R. spoke to his probation officer and agreed to call the officer who had left his business card at his mother’s home. On September 25, 2019, Mr. R. called and apologized for not reporting. Mr. R. knew there was an outstanding warrant for his arrest. When asked where he was living, Mr. R. replied “in Ottawa”. On November 1, 2019, an information charging Mr. R. with fail to report was laid.
PSYCHIATRIC EVIDENCE
Psychiatric Diagnosis
[ 75 ] Dr. Iosif is an experienced and well-recognized expert in forensic psychiatry. She estimated she has done between 50 to 60 dangerous and long-term offender assessments. She was retained to provide an assessment report in relation to the Crown’s application to have Mr. R. declared a Dangerous Offender.
[ 76 ] Dr. Iosif produced a forty-seven page report, dated October 30, 2023. On June 17, 2024, Dr. Iosif provided a four-page addendum confirming her opinion after receiving and reviewing three additional volumes of materials (i.e., Peel CAS records, further medical records, and further provincial correctional service records). Dr. Iosif also testified before me and was rigorously cross-examined.
[ 77 ] Dr. Iosif met virtually with Mr. R. three times for a total of approximately 11 hours (i.e., September 11 and 18, and October 25, 2023). At the time of these interviews, Mr. R. was incarcerated at the TSDC. Dr. Iosif had access to Mr. R.’s medical, correctional, CAS, police, and court records.
[ 78 ] Based on her review of the records and her interviews with Mr. R., Dr. Iosif concluded that Mr. R. meets the diagnosis for the following: Antisocial Personality Disorder; Psychopathy; Polysubstance Use Disorder (alcohol, cannabis and opioids) [15] – in remission in a controlled setting; and, Relationship Problems with Intimate Partners – Spouse or Partner Violence. Dr. Iosif could not rule out a sexological diagnosis.
[ 79 ] Dr. Iosif found that Mr. R. “amply meets the criteria” for a diagnosis of Antisocial Personality Disorder, which she defined as follows at page 37 of her report:
Personality traits are lifelong, characteristic ways of interacting with one's environment [.…] Personality disorders tend to become evident by late adolescence or early adulthood, and are generally sustained thereafter, albeit with some attenuation of more dramatic personality traits toward middle and late age. The course of the symptoms of a personality disorder may be exacerbated by psychosocial stress, an unstructured living situation, alcohol or substance abuse, and non-adherence with psychiatric or psychological treatment.
[ 80 ] In making this diagnosis, Dr. Iosif found that there was “a pervasive pattern of disregard for, and violation of, the rights of others, occurring since the age of 15”. Dr. Iosif based this on Mr. R. meeting three or more of the following criteria:
• failure to conform to social norms with respect to lawful behaviours [met]
• impulsivity or a failure to plan ahead [met]
• irritability and aggressiveness [met]
• reckless disregard for the safety of self or others [met]
• consistent irresponsibility as indicated by repeated failure to sustain consistent work behaviour or honour financial obligations [met]
• lack of remorse, as indicated by being indifferent to or rationalizing having hurt, mistreated, or stolen from another [met]
• deceitfulness, as indicated by repeated lying, use of aliases, or conning others for profit or pleasure [not met]
[ 81 ] Dr. Iosif described the prognosis regarding treatment for antisocial personality traits, from a psychiatric perspective, as “guarded”.
[ 82 ] Dr. Iosif further found that Mr. R. “presents with many of the characteristics and lifestyle that describe the construct of psychopathy”. At page 38 of her report, she described psychopathy as follows:
While psychopathy is not a DSM-V TR diagnosis, it is widely used in forensic assessments due to the implications on issues related to risk management, prognosis and supervision […] In general, psychopathy is strongly correlated with general and violent criminality. The combination of psychopathy and deviant sexual arousal is highly predictive of sexual recidivism.
[ 83 ] Based on her assessment of Mr. R., Dr. Iosif found that Mr. R. has psychopathic traits. She described this as follows at page 38 of her report:
Mr. R. presents as a glib individual, who has a grandiose sense of self-worth, needs stimulation, is prone to boredom, lacks remorse, guilt, or empathy, has poor behavioural controls, promiscuous sexual behavior, is impulsive and irresponsible, and presents with a criminal history of juvenile delinquency, revocation of conditional releases, and criminal versatility.
[ 84 ] In diagnosing Mr. R. with Polysubstance Use Disorder – In Remission in a Controlled Setting, Dr. Iosif observed that although alcohol has contributed to Mr. R.’s criminal history, he has not previously received this diagnosis. During his assessment with Dr. Iosif, Mr. R. described himself as a “moderate drinker”; someone who is always the designated driver. Mr. R. did not express any concern regarding his cannabis consumption. At page 39 of her report, Dr. Iosif noted the following:
People with antisocial personality disorder often suffer from co-morbid substance abuse disorders. An individual who is intoxicated may engage in behaviour that, although antisocial in nature, may not be entirely driven by an exploitative orientation. In Mr. [R.’s] case, antisocial conduct appears to be exacerbated, but not entirely driven by intoxication. Using illicit substances is likely to augment impulsivity, disinhibit behavior, and impair judgment.
[ 85 ] With regard to the diagnosis of Relationship Problems with Intimate Partners – Spouse or Partner Violence, Dr. Iosif noted that Mr. R.’s criminal history is almost entirely related to violence against females; in particular, intimate partners. At page 39 of her report, Dr. Iosif noted the following:
Mr. [R]’s violence against women is largely connected with jealousy and perceived or confirmed infidelity by these partners. […] There is no indication that Mr. [R] has been able to reflect on his relationship issues previously or that he has learned at all from his experience. There is no evidence that he has come to assess people better before engaging them, or that he has come to think differently about his past. Despite his criminal record and participation in Family Violence programming (albeit in 2008), Mr. [R] was entirely exculpatory when speaking about his criminal behaviour in relation to women. His insight as well as his capacity for remorse for such actions has been minimal, despite normal intelligence otherwise. Mr. [R]’s cognitive distortions during the present assessment were numerous; he was noted to minimize, deny, rationalize, and externalize blame. Mr. [R] indicated that he continued with the PAR maintenance program in the community between 2007-2010, but this is not supported by the records available. In fact, in 2014, when participation in further Partner Violence programming was requested of him, Mr. [R] emphatically refused, and was eventually expelled from the course. Although he indicated that previous programming may have been of some benefit, there is little evidence to suggest this. The ongoing repetitive violence and threats against women between 2008 and 2022, are the clearest reflection that little has changed for Mr. [R] in more than two decades of legal involvement.
[ 86 ] Dr. Iosif could not rule out a Paraphilic Disorder because of the sexual nature of the predicate offences and the fact that Mr. R. has refused phallometric testing.
Risk Assessment
[ 87 ] Dr. Iosif concluded that overall, Mr. R.’s risk for recidivism, from both a clinical and actuarial perspective, is generally “high”. This risk becomes “very high in a domestic situation”.
[ 88 ] During her testimony, Dr. Iosif explained that she used several actuarial tools to assess Mr. R.’s current risk to re-offend. These test results may be summarized as follows:
Test
Description
Opinion
PCL-R (Psychopathy Checklist – Revised)
Dr. Iosif described the PCL-R as the “gold standard” for the measurement of psychopathy developed by Dr. Robert Hare. Individuals are assessed in 20 domains with a score of 0, 1 or 2 in each domain. A score of over 30 has been “traditionally diagnostic of psychopathy”, although other investigators have shown that a “significant risk of criminality begins with scores in the mid-twenties”.
Mr. R.’s score of 31 is “high”. This places Mr. R. in the 88th percentile. Dr. Iosif explained that of 100 male offenders, 88 would have a lower score Dr. Iosif described Mr. R. has having “significant psychopathic traits”. Notable characteristics for Mr. R. include a lack of remorse, shallow affect, callousness/lack of empathy, poor behavioural controls, promiscuous sexual behaviour, early behavioural problems, impulsivity, irresponsibility, failure to accept responsibility, juvenile delinquency, many short term marital relationships, revocation of conditional releases and criminal versatility.
SORAG (Sex Offender Risk Appraisal Guide)
Dr. Iosif described the SORAG as “one of the best actuarial instruments for predicting violence among male offenders with a history of sex offences”.
Mr. R. scored “34” which places him in the ninth of nine ascending categories of risk. The score is indicative of a “high probability of violent recidivism” as 100% of offenders in the same risk category committed a new violent offence within 10 years of opportunity.
STATIC-99R
Dr. Iosif described this instrument as one of the best to predict sexual recidivism.
Mr. R. scored “4” which suggests a “moderate-high risk of sexual recidivism” assuming that Mr. R. is released from custody before he turns 60.
ODARA (Ontario Domestic Assault Risk Assessment)
This is a risk assessment tool for domestically violent men.
Mr. R.’s score placed him in the “highest risk category” in which “70% of individuals go on to commit another assault against their partner within an average of about 5 years.”
[ 89 ] In addition to the above actuarial risk assessment tools, Dr. Iosif also conducted a dynamic risk assessment. As explained in her report, dynamic factors may be important when considering risk management. “A dynamic factor is a temporally varying personal or situational circumstance that is associated, positively or negatively, with risk (e.g., use of alcohol or drugs, compliance with treatment or supervision, delusions of persecution, expression of antisocial attitudes, education or employment situation, involvement in pro-social relationships, etc).”
[ 90 ] For the dynamic risk assessment, Dr. Iosif used the HCR20-V3 which is a structured guide for the assessment of violence which considers 10 historical (H) variables, 5 clinical (C) variables, and 5 risk management (R) variables. The HCR20-V3 assessment captures relevant past, present and future considerations to provide information about when, not whether someone is more likely to re-offend. Dr. Iosif described it as a useful tool for risk management as it can inform decisions about the nature and type of supervision or treatment needed. Dr. Iosif also used the Structured Assessment of Protective Factors for Violence Risk (“SAPROF”). The SAPROF is to be used in combination with a valid risk assessment tool, most often the HCR-20. It is a structured professional judgment tool specific for the assessment of protective factors for violence risk in forensic populations.
[ 91 ] During her testimony, Dr. Iosif rejected the suggestion that her test results were artificially elevated. Dr. Iosif noted that Mr. R.’s historical scores on risk assessment tools were consistent with her own findings. Dr. Iosif detailed these earlier tests as follows:
PCL-R : In 2006, Mr. R.’s risk assessment noted “moderate psychopathic traits.” During cross-examination, Dr. Iosif explained that in 2006, there was no “total score” included in the risk assessment, only a comment that Mr. R. “presented with moderate psychopathic traits”. Dr. Iosif testified that a moderate score on the PCL-R would be about 18 to 22.
VRAG (“Violent Risk Assessment Guide”) : In 2006, Mr. R’s score on the VRAG (a counterpart instrument to the SORAG for offenders without a history of sex offences), placed him in the eighth of nine ascending risk categories which indicated a “high probability of violent recidivism.” His score reflected a 76 percent probability of violent recidivism within seven years of risk.
ODARA : In 2017, Mr. R.’s score was “7”. This indicated a 74 percent risk of recidivism. [16]
LSI-OR (“Level of Service Inventory – Ontario Revision”) : In 2012, 2013, and 2017, Mr. R. scored over 20, placing him in the “high risk category.” Specifically, he scored “27” in 2012, “21” in 2013, and “22, in 2017. [17]
Prognosis and Treatment
[ 92 ] Dr. Iosif’s report paints a grim picture. Dr. Iosif concluded that Mr. R. poses a “high risk of violent re-offending”. Dr. Iosif summarized Mr. R.’s “most salient” risk factors as his “personality structure, relational problems, and substance use disorders”. Dr. Iosif wrote:
All three diagnoses require intensive, long-term treatment. His motivation to change is difficult to gauge given how exculpatory Mr. [R] presented during the present assessment. In the past, it does not seem that he was particularly motivated to address criminogenic factors, especially when he re-entered the community. His response to supervision was mostly poor, from an early age.
[ 93 ] With regard to treatment and the possibility of “eventual risk control”, Dr. Iosif considered the following five factors:
• diagnoses;
• motivation to change;
• previous response to treatment;
• previous response to supervision; and
• future prospects regarding employment and supports in the community.
[ 94 ] Dr. Iosif noted that two of three factors, namely Mr. R’s response to treatment and his motivation to change were unknown. The remaining three factors did not bode in his favour.
[ 95 ] With regard to his diagnoses, Dr. Iosif opined that all three of Mr. R.’s diagnoses require intensive, long-term treatment. Further, treatment for Antisocial Personality Disorder diagnosis is particularly challenging. At page 37 of her report, Dr. Iosif wrote:
The mainstay of psychiatric treatment for individuals suffering from a personality disorder, where this is possible, tends to fall within the psychological, rather than the pharmacological, domain, albeit pharmacotherapy may at times be used in an adjuvant fashion, targeting comorbid emotional or behavioural difficulties.
[ 96 ] Dr. Iosif concluded at page 45 of her report that Mr. R’s previous response to supervision has been “mostly poor, from an early age”. As to supports in the community, Mr. R. has few.
[ 97 ] At the hearing, Dr. Iosif was cross-examined about the impact of burnout given that Mr. R. is now in his 40s. Dr. Iosif testified that “antisocial characteristics tend to wane with the passage of time, especially after the fourth decade of life”. Dr. Iosif further explained that “the phenomenon of burnout is not ubiquitous” but Mr. R’s risk was “likely” to “be attenuated in 20 years”.
[ 98 ] At page 46 of her report, Dr. Iosif outlined the following potential risk management plan to address Mr. R.’s high risk of re-offending:
• treatment should be intensive initially and probably indefinite to address relational issues with women and domestic violence
• notice to any future intimate partners of Mr. R’s history of domestic violence and advise of safety plan
• regular attendance at a variety of long-term treatment programs both while incarcerated and after release into the community to address antisocial personality issues
• abstention from substance use
• attendance in regular long-term treatment for substance abuse
• completion of course on Dialectical Behavioural Therapy to learn skills for anger management, self-regulation and self-management skills
• referral to the Sexual Behaviour Clinic at the Centre for Addiction and Mental Health upon re-entry into the community
• trauma focused treatment to address any ongoing impact of abuse by father and injuries allegedly sustained at the hands of the police
• employment to provide pro-social community involvement
[ 99 ] The success of the above plan will depend on Mr. R.’s motivation and insight. Dr. Iosif concluded her report with the following recommendation:
Any release into the community should take place only gradually and slowly, with extended periods of time in a residential correctional facility, and limited privileges earned through demonstrated compliance and appropriate behavior. Rapid intervention should be undertaken in the event of a breach of release conditions. Mr. [R]’s whereabouts should be regularly monitored by unannounced visits by probation and parole officers, once Mr. [R] is living outside a correctional facility. Involvement in treatment programs should also be monitored.
[ 100 ] During the hearing, Dr. Iosif testified about the treatment challenges posed by Mr. R.’s diagnoses. For instance, Mr. R.’s conduct disorder issues date back to before the age of 15. Further, his antisocial personality diagnosis impacts the risk assessment because for all individuals, one’s “personality is something that is fairly fixed and fairly predictable” requiring “very concerted efforts” to change. Also, given that Mr. R. meets the cut-off score for psychopathy, this suggests that he “will respond more poorly to supervision and is more likely to re-offend”.
THE STATUTORY FRAMEWORK AND GOVERNING LEGAL PRINCIPLES
[ 101 ] The Criminal Code provides a two-stage process for determining whether an individual can be designated a dangerous offender. The first stage of the process is the designation stage which relies on an assessment of an offender’s future risk, taking into account their treatability. The second stage of the process is the penalty phase which requires a determination of the minimum sentence necessary to manage the risk.
The Designation Stage
[ 102 ] Section 753(1) contemplates two categories of dangerousness: (i) dangerousness resulting from violent behaviour; and (ii) dangerousness resulting from sexual behaviour: R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at para. 16. In this case, the Crown submits that Mr. R. meets the requisite criteria to be designated a Dangerous Offender based on his violent offending under both ss. 753(1) (a)(i) and 753(1) (a)(ii). [18] See: R. v. A.M., 2024 ONCA 587, 440 C.C.C. (3d) 404, at para. 8, citing R. v. Francis, 2023 ONCA 760, at para. 59. These provisions read as follows:
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, […] [Emphasis added]
[ 103 ] While each route has its own statutory criteria, they share four conditions precedent: (i) the predicate offence is a “serious personal injury offence” as defined in s. 752 (a) of the Criminal Code; (ii) there is a broader pattern of violence of which the index offence forms a part; (iii) the violent conduct is intractable; and (iv) there is a high likelihood of harmful recidivism: A.M., at para. 12; R. v. Hason, 2024 ONCA 369, at para. 84; Boutilier, at paras. 26, 33; R. v. Lyons, [1987] 2 S.C.R 309, at p. 338. The last three criteria are part of the assessment of the "threat" posed by the offender with the last two being future-oriented: Boutilier, at para. 26.
[ 104 ] The onus is on the Crown. The standard of proof is beyond a reasonable doubt: R. v. Currie, [1997] 2 S.C.R 260, at para. 42.
[ 105 ] In Boutilier, the Supreme Court of Canada clarified that an offender cannot be designated a Dangerous Offender under s. 753 unless the sentencing judge concludes that the offender is a future threat to the safety of the community: at para. 23. This requires that the sentencing judge engage in a prospective assessment of the offender’s risk. Prospective evidence, such as evidence of future treatment prospects, is therefore relevant at the designation stage. But, “as a matter of practicality, the most that can be established in a future context is a likelihood of certain events occurring”: Lyons, at p. 364; Boutilier, at paras. 26, 36; Currie, at para. 42.
[ 106 ] In Boutilier, the Court found that compelling treatment prospects may preclude designation even where it might otherwise be appropriate. As explained by Côté J., for the majority, “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”: Boutilier, at para. 45.
[ 107 ] The prospective assessment of dangerousness required at the designation stage “ensures that only offenders who pose a tremendous future risk are designated as dangerous and face the possibility of being sentenced to an indeterminate detention”: Boutilier, at para. 46.
[ 108 ] If the court is satisfied that the statutory criteria have been met at the designation stage, the Dangerous Offender designation follows. There is no discretion. Discretion only exists at the penalty stage: Boutilier, at paras. 41, 58, 60.
The Penalty Stage
[ 109 ] Once designated, ss. 753(4) and 753(4.1) set out the available dispositions. These provisions direct that the court shall:
753(4) (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.
(4.1) 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.
[ 110 ] In Boutilier, the Supreme Court identified three important considerations at the penalty stage.
[ 111 ] First, prospective evidence, such as evidence of treatment prospects, is relevant. As explained by Côté J., at para. 45, “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”. Treatability remains an important consideration at the penalty stage, as the sentencing judge must consider whether “the risk arising from the offender’s behaviour can be adequately managed outside of an indeterminate sentence”: Boutilier, at para. 31.
[ 112 ] Second, all of the principles of sentencing — not only the objective of public protection — are relevant at the penalty stage, including, “an offender’s moral culpability, the seriousness of the offence, mitigating factors, and principles developed for Indigenous offenders”: Boutilier, at para. 63. [19]
[ 113 ] Third, despite the language of s. 753(4.1), there is no presumption of an indeterminate sentence at the penalty stage. Rather, a ladder approach is required. In other words, the judge must first consider whether a conventional sentence will adequately protect the public. If not, the judge must then consider the appropriateness of a conventional sentence combined with a supervision order. An indeterminate sentence should only be imposed if all lesser measures are found to be inappropriate: Boutilier, at paras. 69-70. In other words, “an indeterminate sentence must be the least restrictive means by which to reduce the public threat posed by the offender to an acceptable level”: A.M., at para. 14, citing Boutilier, at para. 65, and R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357.
[ 114 ] The appropriateness of less restrictive dispositions will turn on whether there is a “reasonable expectation” of controlling the risk posed by the offender in the community: Criminal Code, s. 753(4.1). “Reasonable expectation” is a more stringent standard than “reasonable possibility.” A “reasonable expectation” is a belief that something will happen, not something that may happen. A “reasonable expectation” requires more than a “mere speculative hope” that the offender will be successfully treated within a specific timeframe: R. v. Carter, 2024 ONCA 898, at para. 25; R. v. Straub, 2022 ONCA 47, 160 O.R. (3d) 721, at paras. 45, 62-63; R. v. Tynes, 2022 ONCA 866, 165 O.R. (3d) 321, at para. 99.
[ 115 ] In considering the lesser options, the court is not bound by the sentencing range that would ordinarily be appropriate for the predicate offences. Rather, a court may impose a longer than usual penitentiary sentence to avoid imposing an indeterminate sentence, provided the court believes that this will adequately manage the risk to the community: R. v. Spilman, 2018 ONCA 551, 362 C.C.C. (3d) 415, at para. 32. In this case, the Crown argues that if I conclude an indeterminate sentence is inappropriate, the sentences imposed should total 15 years’ imprisonment. [20]
[ 116 ] Based on these legal principles, I will now turn to my analysis.
ANALYSIS: THE DESIGNATION STAGE
[ 117 ] The parties agree that Mr. R. meets the criteria to be designated a Dangerous Offender under ss. 753(1) (a)(i) and (ii). I agree.
[ 118 ] I find that the Crown has proven the following beyond a reasonable doubt:
a. The predicate offences are serious personal injury offences, as defined in s. 752;
b. Mr. R. is a threat to the life, safety, or physical or mental well-being of others because of a pattern of repetitive behaviour that demonstrates,
i. a failure to restrain his behaviour, and
ii. a likelihood that he will cause death or injury or inflict severe psychological damage to others through failure in the future to restrain his behaviour pursuant to s. 753(1)(a)(i); and
c. Mr. R. is also a threat to the life, safety, or physical or mental well-being of others because of a pattern of persistent aggressive behaviour, which shows a substantial degree of indifference about the reasonably foreseeable consequences to others of his behaviour pursuant to s. 753(1) (a)(ii).
Serious Personal Injury Offence
[ 119 ] It is undisputed that Mr. R.’s convictions for two counts of sexual assault are SPIOs. I agree.
[ 120 ] Section 752 of the Criminal Code defines a SPIO as an indictable offence punishable by a sentence of 10 years or more involving: (i) the use or attempted use of violence against another person; (ii) conduct endangering or likely to endanger the life or safety of another, or inflicting or likely to inflict severe psychological damage on another person; or an offence in s. 271 (sexual assault).
[ 121 ] There is no dispute that the offence of sexual assault is a SPIO. It is an enumerated SPIO. It is also an indictable offence punishable by a maximum of 10 years that is likely to inflict severe psychological damage on another.
Pattern of “Repetitive” Behaviour: s. 753(1)(a)(i)
[ 122 ] Counsel agree (as do I) that the predicate offences are not an isolated occurrence. Rather, they form part of a pattern of behaviour that is repetitive. The evidence discloses a pattern of repetitive behaviour coupled with a likelihood that Mr. R. will commit further violent offences through a failure in the future to restrain his behaviour, particularly in relation to any female who is in his life. This poses a high risk of death, injury, or severe psychological injury to others.
[ 123 ] In R. v. Brissard, 2017 ONCA 891, 356 C.C.C. (3d) 494, at para. 57, Pardu J.A., for the Court of Appeal for Ontario, explained what is required to establish a “pattern of behaviour”:
The pattern of repetitive behaviour relevant to s. 753(1)(a)(i) is a pattern that contains "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 ... however, the offences need not be the same in every detail; that would unduly restrain the application of the section" [citations omitted]. Differences in the details of the offences will not be relevant if the index and past offences represent ‘a pattern of repetitive behaviour by the offender ... 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’: Criminal Code, s. 753(1)(a)(i). As this court confirmed in Szostak, at para. 63: ‘'Similarity...can be found not only in the types of offences but also in the degree of violence or aggression threatened or inflicted on the victims'’ (citation omitted).
[ 124 ] As explained by Tulloch J.A. (as he then was) in Tynes, at para. 67, a pattern does not arise simply from the number of offences committed. It is also rooted in the elements of similarity in the offender’s conduct. Similarities can arise from the types of offences committed, and in the degree of violence or aggression threatened or inflicted.
[ 125 ] However, as explained in the recent decision of A.M., at para. 19, a “pattern may be established on the basis of only two incidents although where there are fewer incidents, they must generally be more similar”.
[ 126 ] In this case, the predicate offences are two acts of sexual assault. While Mr. R.’s history of criminal offending as an adult is extensive, his only prior offending of a sexual nature is as a youth. That, however, does not mean his conduct lacks a “pattern”. The pattern that is quite evident in Mr. R.’s history of offending is a failure to control his violent behaviour towards females with whom he has any sort of relationship – whether intimate, familial, or acquaintances. Mr. R. has a profound and unrelenting disregard for females. In all circumstances, Mr. R. minimizes his offending behaviour. He attributes blame to the victims for having angered him, or otherwise creating circumstances which, in his mind, justify his behaviour. A risk of serious harm to a particular type of victim – in this case females, and particularly current or former intimate partners – will suffice to establish a pattern: R. v. Eamer, 2024 ONCA 246, at para. 31.
[ 127 ] I accept Dr. Iosif’s opinion that Mr. R. has shown “no behavioural restraint”. Dr. Iosif’s opinion is further explained at page 44 of her report:
He threatened women and their children, the mothers of his children and even his own mother. He inflicted violence repeatedly on his intimate partners, and, at the time of the index offence, on a young person who could very well be his biological daughter. His participation in the PAR programming is by now almost two decades old; even at the time when he completed the program, many difficulties were noted and further attendance was recommended. Yet, when asked to attend again in 2014, he behaved with scorn and defiance, even while on probation. He told his supervisory officer plainly that he did not want to attend, and that the group was “not a priority”.
[ 128 ] Mr. R. has a pattern of subjecting females who come into his life to violent behaviour. He is a jealous and controlling man who acts without regard to the severe physical and psychological harm inflicted on his victims. For instance, when discussing the predicate offences with Dr. Iosif, Mr. R. commented “if she said no, I would not have pushed myself”. He also told Dr. Iosif that he “wasn’t looking at it as something wrong”. While Mr. R. continued to deny vaginal penetration, he admitted to cunnilingus and rubbing his penis against SB’s privates. Mr. R.’s discussion of the predicate offences with Dr. Iosif showed concern for his own circumstances of being in jail and away from his sons, without regard to the psychological harm inflicted on SB. In SB’s victim impact statement, SB detailed acts of self harm that have resulted in her hospitalization. Only through her determination and effort, has she graduated from high school and is pursuing a college studies.
Pattern of Persistent and Aggressive Behaviour: s. 753(1)(a)(ii)
[ 129 ] The parties also agree (as do I) that Mr. R. meets the test to be designated a Dangerous Offender under s. 753(1) (a)(ii) of the Criminal Code. This section requires proof of a pattern of persistent and aggressive behaviour with a substantial degree of indifference respecting the reasonably foreseeable consequences of his behaviour to others. It is intended to deal with an individual who is callous and remorseless.
[ 130 ] I am satisfied that Mr. R.’s conduct demonstrates a pattern of persistent and aggressive behaviour showing a substantial degree of indifference of its impact on others. Mr. R. is indifferent to the impact his conduct has on others. He typically blames his victims for his offending behaviour. He is lacking in empathy.
[ 131 ] I accept Dr. Iosif’s opinion that Mr. R. has shown a “striking indifference to foreseeable consequences of his behaviour”. As Dr. Iosif explains at page 44 of her report:
Despite numerous legal orders and even sentences against him, Mr. [R] has gone on to replicate almost exactly the actions and circumstances that had led to his criminal charges and convictions in the first place. Some offences took place while he was on probation, some even while he was incarcerated for crimes against the same victim. When the interviewer suggested that lack of respect for orders of the Court had been a theme throughout his criminal record, Mr. [R] replied that he hated people having authority over him. He compared his legal conditions to slavery, and stated that he was being racially profiled.
Future Risk and Intractability
[ 132 ] The last factor of consideration at the designation stage is forward looking. The Crown must prove beyond a reasonable doubt that there is a high likelihood of harmful recidivism that is substantially or pathologically intractable. As explained by Molloy J. in R. v. Medford, “[a]lthough these are separate concepts, they are related in that a finding that a pattern of violent conduct is intractable leads logically to a conclusion as to the likelihood of recidivism”: 2019 ONSC 5065, at para. 94. In other words, the focus is not on what Mr. R. has done, but what risks exist in the future.
[ 133 ] “Intractable” conduct is behaviour that Mr. R. is unable to surmount: Boutilier, at para. 27. In determining this issue, the possibility of treatment is an important factor of consideration. Given that Mr. R.’s criminal offending is rooted in his personality structure, Dr. Iosif opined that Mr. R.’s treatment is psychological, not pharmacological in nature. Its success, however, is tied to Mr. R.’s insight and motivation. To date he has shown neither. Mr. R. lacks insight and, for most of his life, he has responded poorly to supervision.
[ 134 ] For instance, although substance use has been flagged as a concern for well over two decades, Mr. R. denies this is a problem. His denial shows a profound lack of insight given that most, if not all, of his convictions for domestic violence occurred after alcohol consumption. The first of the predicate offences also occurred after a night of drinking. Without insight and a meaningful commitment to address his conduct through intensive long-term treatment, there is a high likelihood of harmful recidivism.
[ 135 ] Dr. Iosif pointed to several factors that are likely to limit Mr. R’s treatment prospects. Mr. R.’s most salient risk factors are his personality structure, his relational problems, and his substance use disorders. In particular, Mr. R. meets the criteria for a diagnosis of antisocial personality disorder. He also presents with psychopathy. Mr. R.’s personality traits are lifelong and present challenges from both a risk management and treatment perspective.
[ 136 ] The actuarial risk assessment instruments are also relevant when determining Mr. R.’s likelihood to re-offend. As Pomerance J. (as she then was) noted in R. v. McLaughlin, 2014 ONSC 6537, actuarial tools are useful primarily insofar as they supplement and/or allow for a form of cross-checking of judgment. The test results provide information about how Mr. R. compares to other individuals who share certain characteristics. In this case, those tests show Mr. R. to be a high risk to re-offend violently. This, however, does not dictate the result. Nor am I bound by Dr. Iosif’s expert opinion, which defence counsel argues is biased and ought to be viewed with caution. My assessment is based on all of the evidence concerning the unique circumstances of Mr. R.’s life.
[ 137 ] I have considered the alleged weaknesses in Dr. Iosif’s opinion that were raised by defence counsel. However, even in the absence of Dr. Iosif’s opinion, I would conclude that Mr. R. meets the test to be designated a dangerous offender. In particular, my conclusion is based on the following:
• The nature and number of violent offences on his criminal record.
• His tendency to prey on any female with whom he has any personal relationship.
• The predicate offences were committed less than one month after his release, notwithstanding the support of his mother and the fact that he was on probation.
• His tendency to minimize his criminal conduct and blame the victim.
• His disregard for court orders, including contacting victims in violation of the terms of his detention order.
• His disregard for authority as demonstrated in part by his many convictions for misconduct while incarcerated.
• His substance abuse and his denial that it is a problem.
[ 138 ] On the record before me, I am satisfied that there is a strong likelihood that Mr. R. will commit further offences of violence in the future, particularly as it relates to intimate partners. Mr. R.’s lengthy criminal record discloses a habitual tendency to inflict severe physical and psychological harm on females. His violent behaviour is intractable. There is a strong probability that he will continue this pattern of criminal offending. There is every reason to believe that his offending conduct will be lifelong.
Conclusion on the Designation Stage
[ 139 ] I am satisfied, based on all of the evidence, that the Crown has proven beyond a reasonable doubt that Mr. R. meets the definition of a Dangerous Offender under ss. 753(1) (a)(i) and (ii) of the Criminal Code. I therefore declare Mr. R. to be a Dangerous Offender.
[ 140 ] I will now turn to a consideration of the appropriate sentence. This was the sole issue in dispute and the focus of the hearing.
ANALYSIS: THE PENALTY STAGE
[ 141 ] Having designated Mr. R. as a Dangerous Offender, I must now turn to the question of penalty and whether Mr. R. should receive an indeterminate sentence, a determinate sentence with a LTSO, or a conventional sentence without any ongoing period of supervision.
[ 142 ] A ladder approach is required when considering which of the three available options is appropriate. In other words, an indeterminate sentence is only available if the two lesser restrictive options are found to be inappropriate.
[ 143 ] The imposition of the least intrusive sentence requires a consideration of the sentencing objectives set out in ss. 718 - 718.2 of the Criminal Code: Boutilier, at paras. 53, 61 and 63. Accordingly, while the protection of the public is an enhanced sentencing objective for dangerous offenders, all other principles of sentencing apply and must be considered: Boutilier, at para. 56.
[ 144 ] In this case, the parties agreed (as do I) that a conventional determinate sentence is inappropriate. The evidence unequivocally demonstrates that Mr. R. is in need of intensive long-term treatment. A conventional sentence simply does not allow for this.
[ 145 ] In this case, the key issue is whether a determinate sentence followed by a LTSO is sufficient to manage the significant risk of violent recidivism posed by Mr. R., or whether an indeterminate sentence is the only option available to address the risk posed by Mr. R.
[ 146 ] Mr. R.’s preference is for a sentence of 5 years’ imprisonment with a 10-year LTSO. This would likely result in Mr. R.’s immediate release on supervision given his time in pre-sentence custody. During submissions, defence counsel acknowledged the risks associated with such a sentence and instead urged the court to impose a term of imprisonment that would result in Mr. R. serving a further two years of imprisonment in the penitentiary followed by a 10-year LTSO. This position acknowledges Mr. R.’s need for the programming available only in the penitentiary setting and give effect to the ultimate objective of “treat the man, treat the problem”. Mr. R.’s “problem” is alcohol abuse which underlines his history of criminality. The potential “treatment” is alcohol-inhibiting narcotics (i.e. Antabuse) and high-intensity programs to address his substance abuse, anger management and relationship issues. Defence counsel argues that “[w]ith appropriate medication, reporting conditions and guidance, any danger to the community can be significantly minimized while affording Mr. [R] the opportunity to meaningfully contribute to society”. Further, as Mr. R. is in desperate need of treatment, an indeterminate sentence will deprioritize treatment as entry into the high-intensity programs is often governed by an offender’s pending release.
[ 147 ] The Crown argues that anything less than an indeterminate sentence is inappropriate, given the uncertainty in controlling Mr. R’s risk through lesser options. However, should the Court disagree, the Crown argued that a total sentence of 15 years’ imprisonment, followed by a 10-year LTSO would be appropriate.
[ 148 ] Defence counsel points to the Crown’s alternative request for a sentence of 15-years’ imprisonment as demonstrative of a systemic approach by the Crown to use the dangerous offender regime as a “tax on sentencing”: R. v. Gardner, 2016 ONCJ 45; R. v. J.D.S., 2015 ONCJ 226; R. v. Bolduc, 2021 QCCA 257.
[ 149 ] I recognize that the imposition of an indeterminate sentence will “quite easily exceed [Mr. R.’s] longest period of incarceration”. Further, the “jump” principle, along with the principle of restraint and other sentencing principles are relevant and must be considered. However, the operation of the jump principle is not a trump card that mandates the intermediate step of a LTSO where the evidence is otherwise speculative as to treatability and reduction in risk: R. v. S. (R.), 2020 ONCA 765, 153 O.R. (3d) 185, at para. 46.
[ 150 ] A determination of reasonable expectation of eventual control in the community must be based on “evidence that an offender can be meaningfully treated, so that the offender’s risk to the public can be controlled at an acceptable level, within a determinate period of time”: R. v. Solano, 2014 ONCA 185, 309 C.C.C. (3d) 386, at para. 15. See also: Carter, at para. 25; Straub, at paras. 45, 62-63; Tynes, at para. 99. On the record before me, there is no assurance that Mr. R.’s high risk of violent recidivism has any expiry date.
[ 151 ] Relevant to the issue of treatability, is evidence of the offender’s amenability to treatment, treatment avoidance, and any failure to follow through with previous treatment: R. v. S.M.J., 2023 ONCA 157, 166 O.R. (3d) 567, at para. 27.
[ 152 ] In this case, there is nothing to indicate that Mr. R. can be effectively treated within any determinate timeframe. He is currently an unacceptable risk to the public. There is much uncertainty as to whether his risk can ever be effectively managed. I find that it is purely speculative and, at best, a mere possibility that any lesser measure might be successful: R. v. P.N.W., 2024 ONCA 662, at paras. 38-39. To date, Mr. R. has shown no amenability to treatment. At most, he has expressed some interest. For instance, when being sentenced in May of 2016, Mr. R. told the sentencing justice that he intended to stop his criminal behaviour as he was “getting older” and always being locked up was “starting to get to [him]”. Despite the passage of eight years, little has changed. While Mr. R. has participated in several programs in recent months, this too must be viewed through the lens of his personal history. During past periods of incarceration and community supervision, Mr. R. has participated in programming only to become non-compliant and re-offend once left to his own devices.
[ 153 ] Defence counsel vigorously argued that Dr. Iosif’s opinion should be viewed with caution because it lacks any balance. He submits that Dr. Iosif “fell short” of providing the court with a “fair and impartial assessment”. In his written submissions, defence counsel included several excerpts of Dr. Iosif’s testimony during cross-examination to demonstrate that Dr. Iosif “is or stepped into the role of an advocate” thereby failing to discharge her duty as an expert witness by:
• The use of “charged, pejorative and, worse, unfounded” language as well as language choices that “are often emotionally charged and judgmental” (e.g., suggesting that Mr. R. had a “parasitic” relationship with women in his life, that Mr. R.’s threats were “epic”, that he “commented callously”).
• The use of misleading and incomplete assertions (e.g., on page 2 of her Report, in listing “sources of information”, Dr. Iosif wrote that Mr. R. “declined to allow me to speak with his brothers” without explaining that Mr. R. believed his brothers were disappointed in him – a fact that is noted at page 4 of her Report. Dr. Iosif agreed that this demonstrated some insight by Mr. R. which is a positive factor).
• Making minimal efforts to obtain information from Mr. R.’s mother (i.e., Dr. Iosif called Mr. R.’s mother twice and left messages without further follow-up). [21]
• Making minimal follow up on Mr. R.’s pro-social behaviours (e.g., Dr. Iosif was aware that Mr. R. was passionate about music and collected records as a hobby, but made no inquiries about this or other pro-social behaviours unlike her practice of delving deeper into Mr. R.’s antisocial behaviours).
• Spending only 11 hours with Mr. R., which resulted in Dr. Iosif ignoring or minimizing important aspects of Mr.’s R.’s life.
[ 154 ] While I agree that some of Dr. Iosif’s language was needlessly negatively charged, I reject the defence submission that this, or any of the other challenges, taints her ultimate diagnosis and risk assessment. Most of the complaints are unfounded. For instance, while Dr. Iosif is criticized for only spending 11 hours with Mr. R., Dr. Iosif said that her average time to do a full assessment is 60 to 70 hours. In other words, the eleven hours does not reflect the dozens of hours she spent reviewing the several thousand pages of materials. I note that in Carter, the forensic psychiatrist who assessed Mr. Carter met with him for 5.75 hours: at para. 6.
[ 155 ] As for Dr. Iosif’s lack of contact with Mr. R.’s mother, Dr. Iosif left two messages. Given that Mr. R. was living with his mother at the time of his arrest, his mother is clearly aware of his continued detention. If Mr. R.’s mother was willing to continue her support of him, I have no doubt defence counsel would have filed a letter from her. Dr. Iosif did follow-up with Ms. AW, who “spoke positively” of Mr. R. and described him as a “good father”. Finally, there is nothing to suggest that Dr. Iosif’s opinion would be any different absent any of the alleged failings. I am satisfied that Dr. Iosif discharged her professional obligations as an expert witness. Her opinion is fair and objective. That it paints Mr. R. in a very negative light is a reflection of Mr. R.’s character, not a departure in Dr. Iosif’s professionalism.
[ 156 ] An assessment of Mr. R.’s treatment potential and “eventual risk control in the community” relies on five key factors. This is explained by Dr. Iosif at page 45 of her report:
From a psychiatric perspective, the possibility of “eventual risk control” hinges on the treatability of the problems and issues which are seen as determinants of Mr. [R]’s criminogenic behaviour. Factors usually considered in order to arrive at an opinion regarding treatability, include:
a. diagnoses,
b. motivation to change,
c. previous response to treatment,
d. previous response to supervision, and
e. future prospects regarding employment and supports in the community.
[ 157 ] There can be no doubt that Mr. R.’s diagnoses require intensive long-term treatment. His serious chronic personality traits are lifelong. The nature of treatment required falls more in the psychological, not pharmacological domain. Consequently, Mr. R.’s insight and motivation will be critical to his success. To date, however, Mr. R. has shown little of either. Moreover, as stated at page 46 of Dr. Iosif’s report, “the prognosis regarding treatment for antisocial personality traits is guarded.” Further, Dr. Iosif’s opinion that Mr. R. presents a high risk of violent recidivism is supported by current and historical actuarial test results. Mr. R.’s recent participation in programs shows some motivation but offers little assurance in terms of his long-term treatment prospects. Indeed, in 2010, Mr. R.’s motivation was described as “high” yet he withdrew from an autobody course at Mohawk College once his parole ended.
[ 158 ] To date, Mr. R. has demonstrated that he is resistant to treatment. Mr. R’s previous response to treatment and community supervision is poor. Perhaps the best example of this failure is Mr. R.’s continued offending soon after each release from custody. He is in denial about what is plain to see about the contributing role his substance abuse plays in his offending behaviour. While this was flagged as a concern more than 20 years ago, Mr. R. denies this is a problem. Instead, he typically finds fault with the victim for having created the circumstances that led to his offending conduct. Mr. R.’s history shows little regard for any court order. His disregard for court orders continued after his arrest and detention on the predicate offences. Mr. R. is also an unreliable historian.
[ 159 ] Finally, Mr. R.’s future prospects regarding employment and supports in the community are also limited. Through his criminality, Mr. R. has alienated his daughters and other family members. His employment history is sporadic and dated. Each of his prior releases from custody have been short lived. If history is any guide, Mr. R.’s history shows someone who is incapable of conforming to societal norms of behaviour which thereby endangers intimate female partners and other females in life. His history fully supports Dr. Iosif’s opinion at page 46 of her Report, that Mr. R.’s relational issues with women will require “intensive” and “probably indefinite” treatment.
[ 160 ] While Dr. Iosif was cross-examined about “burn out” given Mr. R.’s age, the possibility that Mr. R.’s risk will lessen as he ages, is, at this stage, a mere hope based on generalities: A.M., at para. 42; R. v. McManus, 2024 ONCA 832, at para. 15. While not raised during submissions, I find that Dr. Iosif’s testimony about age-related burnout to be “general and theoretical in nature”: R. v. Beaudin, 2024 ONCA 732, at para. 9.
[ 161 ] Defence counsel argued that there is a “reasonable possibility” of eventual control in the community within the period of supervision available through a 10-year LTSO. In advancing this position, defence counsel relied on Dr. Iosif’s testimony that pharmaceutical intervention to address alcohol consumption is effective. As for Mr. R.’s compliance, defence counsel argues that this is the reason for the LTSO regime which would reserve the most severe penalty of an indeterminate sentence should Mr. R. breach the terms of his LTSO. Following from this, he argues that applying the principle of restraint and the “jump” principle, the intermediate step of a determinate sentence followed by a 10-year LTSO is most appropriate. I disagree.
[ 162 ] I have considered carefully defence counsel’s submission that Mr. R.’s risk of harmful recidivism can be adequately controlled by treating his alcoholism with “alcohol-inhibiting narcotics”, combined with supervision with terms that require:
• Anger management treatment or other programming as directed;
• Alcohol-related programming;
• Pharmacological treatment for alcohol;
• Submit to testing as required;
• Report as required;
• Obtain and maintain employment or self-employment.
[ 163 ] As for the risk to intimate partners, a term could also be imposed that would require Mr. R. to notify his parole officer of any new intimate partner.
[ 164 ] While this proposed supervision plan is theoretically sound, it too relies on Mr. R.’s willingness and ability to comply. Yet, all past attempts to control Mr. R. through supervision have failed. I have no confidence that this time is any different. The plan offers no assurances that Mr. R.’s risk can be effectively controlled after the expiry of the maximum 10-year period of long-term supervision.
[ 165 ] During the hearing, it was apparent that counsel for the Crown and defence counsel have vastly differing views about the effectiveness of the mechanism available to address any breach of by Mr. R. of the terms of a LTSO. The Crown argues that given Mr. R.’s high risk of recidivism, a LTSO will compromise public safety. The defence argues that the breach mechanisms are effective and offer “the appropriate middle ground” before imposing “one of the harshest and most severe forms of punishment available”.
[ 166 ] The mechanism available to CSC officials for addressing breaches was explained during the hearing by Mr. Kiers who is employed as a supervisor with CSC. Mr. Kiers testified that if Mr. R. breached a condition of his LTSO, he could be held in custody for a maximum of 90 days, absent new charges being laid. If new charges are laid, Mr. R. would return to the community once any sentence for the breach is completed (assuming he is found guilty of the breach). The LTSO resumes once any sentence for the breach is served regardless of the risk posed to the public. In contrast, if Mr. R. receives an indeterminate sentence, the Board retains the power to actively supervise Mr. R. and can terminate community living if necessary.
[ 167 ] The difference in supervision between a LTSO and an indeterminate sentence is significant in terms of managing the high risk to public safety that Mr. R poses. Should Mr. R. address his behavioural issues and show progress, the Board has the ability to ease the supervision in a manner that is consistent with public safety.
[ 168 ] When I consider all of the circumstances, I am satisfied that there is no “reasonable expectation” that Mr. R. can eventually be controlled in the community, even with a lengthy fixed sentence followed by a 10-year LTSO. In my view, the plan proposed by defence counsel is speculative. It offers no assurance whatsoever that Mr. R. will be successfully treated before the expiry of a LTSO. A LTSO is not a test run for any expression of hope that might exist. While Mr. R. is advancing in age and his criminality is closely tied to his alcohol abuse for which a pharmacological treatment option is available, at best this offers some expression of hope. No doubt, an indeterminate sentence is a significant jump from Mr. R.’s prior sentences. The same was true in Eamer, where the offender had a “relatively short criminal record” and had never received a penitentiary sentence: at para. 31. However, the significant and intractable risk of harm Mr. Eamer posed to intimate partners was found to warrant an indeterminate sentence.
[ 169 ] Neither the jump principle, nor the principle of restraint mandate the intermediate step of a LTSO at the expense of public safety. While all sentencing principles must be taken into account in dangerous offender proceedings, the paramount consideration is the protection of the public: Boutilier, at para. 68. In this case, there is no reasonable expectation that a sentencing option less than an indeterminate sentence will adequately protect the public.
[ 170 ] In my view, given all of the evidence, I have no choice but to sentence Mr. R. to an indeterminate sentence.
CHARGE OF FAIL TO COMPLY WITH PROBATION
[ 171 ] At trial, it was not disputed that at the time of the allegations of sexual assault, Mr. R. was on probation. Consequently, the finding of guilt on the two counts of sexual assault established that he breached the condition of his probation order, which required he keep the peace and be of good behaviour.
[ 172 ] Given my finding on the application to designate Mr. R. a Dangerous Offender, and the amount of time that Mr. R. has been in pre-sentence custody, I sentence him to 1 day in jail on this charge.
ANCILLARY ORDERS
[ 173 ] I make the following ancillary orders:
(i) Mr. R. has been convicted of a primary designated offence. He shall provide samples of his bodily substances for purposes of forensic DNA analysis pursuant to s. 487.051 of the Criminal Code.
(ii) Mr. R. is prohibited for life from possessing any weapons, ammunition and explosives pursuant to s. 109 of the Criminal Code.
(iii) Pursuant to s. 743.21 of the Criminal Code, Mr. R. is prohibited from having any contact, directly or indirectly, with SB, the victim of the predicate offences.
(iv) Pursuant to s. 760 of the Criminal Code, a copy of all reports and testimony given by all witnesses on this application, together with a copy of these reasons, and a transcript of the trial shall be forwarded to Correctional Service of Canada.
(v) Pursuant to s. 490.012(2)(b) of the Criminal Code, there will be a mandatory order for 20 years that Mr. R. comply with the Sex Offender Registration Act, S.C. 2004, c. 10.
[ 174 ] Finally, as Mr. R. has no means to pay a victim surcharge, the imposition of the surcharge is waived.
J.M. Barrett, J.
Released: February 21, 2025.
COURT FILE NO.: CR-21-50000397-0000
DATE: 20250221
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N: HIS MAJESTY THE KING - and - S. R.
RULING RE: DANGEROUS OFFENDER DESIGNATION AND SENTENCING
J.M. Barrett, J.
Released: February 21, 2025
[1] At the end of the Crown’s case, a copy of the probation order was filed on consent and the defence agreed that all of the evidence applied equally to the separately charged offence of fail to comply. Consequently, Mr. R. was also found guilty of breach of probation.
[2] This relates to Mr. R.’s one federal sentence imposed in November 2005.
[3] No biological evidence was adduced at trial, but Mr. R.’s paternity was not disputed.
[4] This date appears in a LSI-OR report dated February 23, 2021. When released, Mr. R. was on two probation orders.
[5] Records detailing the underlying facts of this conviction were not filed. The same is true for other entries in this chart where the offence date appears as “unknown”.
[6] Although this appears as a separate entry on Mr. R’s criminal record, it would appear to be a duplicate entry.
[7] Records from the Ministry of Correctional Services and Community Safety show that on December 21, 2018, Mr. R. failed to report for his intermittent sentence.
[8] AW was a collateral source of information who Dr. Iosif spoke with for purposes of her assessment.
[9] Mr. R. remained in jail until February 2009.
[10] During his assessment with Dr. Iosif, Mr. R. denied having incurred any new charges while incarcerated.
[11] Mr. R. was in custody at the time of his father’s death.
[12] As will be explained herein, defence counsel relied on Dr. Iosif’s two failed calls as demonstrative of a lack of effort whereas, Dr. Iosif’s notation of Mr. R.’s refusal to consent to his brothers being contacted was said to be misleading and incomplete.
[13] This is documented in a 1996 pre-sentence report.
[14] This information is reported at page 5 of Dr. Iosif’s assessment report. However, a pre-sentence report prepared for Mr. R.’s sentencing hearing on December 6, 2018 noted that Mr. R. completed grade 11.
[15] Dr. Iosif testified that when she prepared her report, she did not have the records that were subsequently provided which show a history of Mr. R.’s addiction to opioids. Having reviewed the subsequently disclosed records, Dr. Iosif testified that Mr. R. meets the disgnostic criteria for polysubstance use disorder for alcohol, cannabis and opioids.
[16] Although not referenced in Dr. Iosif’s report, records filed in Exhibit IV show that on February 11, 2021, Mr. R.’s ODARA score was “10” which placed Mr. R. in the highest risk category.
[17] Dr. Iosif’s report did not reference a LSI-OR report, dated February 5, 2019, in which Mr. R. scored “34”. Nor did it refer to a LSI-OR report, dated April 6, 2021, which recorded Mr. R.’s score of “26”. Any score over 20, puts Mr. R. in the highest risk category.
[18] The Crown originally sought a Dangerous Offender designation based also on Mr. R.’s sexual offending but later abandoned this request based on the evidence adduced at the hearing.
[19] Dr. Iosif’s addendum refers to an entry in Mr. R.’s MCSCS records dated November 23, 2022, in which Mr. R. “said he ‘needed to smudge’ as he was from ‘Six Nations’”. During the hearing, I inquired whether Mr. R. is Indigenous. Counsel for Mr. R. confirmed that Mr. R. is not Indigenous.
[20] Pursuant to s. 271 (a) of the Criminal Code, the maximum sentence for each sexual assault is 10 years’ imprisonment. Given SR’s record, the Crown argued that the “normal” range of sentence for the assault involving vaginal penetration was the maximum 10 years’ imprisonment. The Crown argued that a consecutive sentence was appropriate for the subsequent, non-penetrative sexual assault. The breach of probation charge is punishable by a maximum of four years’ imprisonment: Criminal Code, s. 733.1.
[21] Dr. Iosif did not independently recall any details about these calls. However, as Dr. Iosif’s cross-examination took place over two days, when Dr. Iosif returned on the third day of her testimony, she provided more details about the dates of her calls (Transcript, June 26, 2024, p. 4).
