Reported Case - 2012-02-12

 

Between

Her Majesty the Queen, and

[REDACTED]

[REDACTED]

[REDACTED]

Court File No. [REDACTED]

Ontario Superior Court of Justice

Judge: [REDACTED].

Heard: [REDACTED].

Judgment: [REDACTED].

(167 paras.)

Counsel:

[REDACTED] and [REDACTED], for the Crown.

[REDACTED] and [REDACTED], for the Accused.

REASONS FOR JUDGMENT

1     [REDACTED].:-- The life of [REDACTED] came to a sudden and horrific end on February 28, 2008 when she was callously and brutally killed by two thugs who entered her flower store with the intention of robbing her. [REDACTED] was one of these two thugs. [REDACTED] was the other.

2     [REDACTED] was tried before me, with a jury, on an indictment alleging that he committed the first degree murder of [REDACTED] as well as the offences of unlawful confinement, robbery and use of an imitation firearm, all in connection with these tragic events. The jury found him guilty of manslaughter, robbery, unlawful confinement and using an imitation firearm. It then became my duty to impose sentence.

3     [REDACTED] was called as a Crown witness at the trial of [REDACTED]. Subsequent to that trial, [REDACTED] pleaded guilty before me to one count of manslaughter in relation to the events of February 28, 2008, and three counts of robbery in relation to offences committed with  [REDACTED] on February 1, 2008, February 20, 2008 and February 27, 2008. I imposed a 12 1/2 year total sentence on him, less 6 1/2 years credit for approximately 3 1/4 years of pre-sentence custody (see R. v. Joseph, 2011 ONSC 4306, [2011] O.J. No. 3637). I indicated that I would have been inclined to impose a sentence of 10 years for the manslaughter, and 2 1/2 years consecutive for each of the three other robberies, taking into account the mitigating circumstances, including: the fact that the offender is still a relatively young man; that he has no criminal record; that he is remorseful; that he confessed his guilt at an early stage and cooperated with the Crown by testifying against his co-accused, at significant risk to his well-being in prison; that he played a secondary role in the offences; that while he participated in the acts that resulted in the death of [REDACTED], it was [REDACTED] who finally taped her mouth and nose in a manner that caused her to suffocate; and that he will be deported upon his release from imprisonment.

4     But bearing in mind the principle of totality, and remembering as well that the usual approach to consecutive and concurrent sentence may give way to the totality principle, instead I imposed a sentence of ten years for the manslaughter, and 2 1/2 years concurrent to each other but consecutive to the manslaughter sentence for each of the three robberies.

5     Prior to the imposition of sentence on [REDACTED], the Crown brought an application pursuant to s. 752.1 of the Criminal Code, R.S.C. 1985, c. C-46 ("the Code") seeking an order remanding the offender to the custody of [REDACTED] at the Centre for Addiction and Mental Health ("CAMH") to perform an assessment for use in an application to have [REDACTED] declared a dangerous offender or a long-term offender. I granted the order, with reasons to follow. It is sufficient to say that I was satisfied that the offender had been convicted of serious personal injury offences, and that there were reasonable grounds to believe that he might be found to be a dangerous offender. More specifically, I concluded that there were reasonable grounds to believe that he might constitute a threat to the life, safety or physical well-being of other persons based on: (i) a pattern of repetitive behaviour by the offender, including these offences, showing a failure to restrain his behaviour, and a likelihood of his causing death or injury to other persons through a failure in the future to restrain his behaviour; and (ii) a pattern of persistent aggressive behaviour by the offender, including these offences, showing a substantial degree of indifference on his part respecting the reasonably foreseeable consequences to others of his behaviour. I reached these conclusions based on a review of the evidence led at this trial and an examination of the details of his criminal record, which includes crimes of dishonesty, crimes of violence, weapons offences and offences against the administration of justice.

6     I should also make it clear that I took into consideration evidence of the offender's involvement in three robberies in 2008, prior to this one, that was led at this trial as similar fact evidence. While [REDACTED] has not been convicted in respect of these three robberies, I am satisfied beyond a reasonable doubt that he is guilty of robbery, forcible confinement, use of an imitation firearm, disguise with intent and possession of property obtained by crime in respect of these robberies. It is well-settled that the dangerous offender provisions of the Code contemplate the admissibility of evidence of prior misconduct, including matters that were not the subject of criminal charges, if the evidence is relevant, as this evidence clearly is. It is relevant to assist in establishing both the requisite pattern of repetitive behaviour by the offender in s. 753(1)(a)(i) of the Code and the requisite pattern of persistent aggressive behaviour by the offender in s. 753(1)(a)(ii). (See R. v. C.L.S. (1999), 133 C.C.C. (3d) 467 at para. 26 (Ont. C.A.) and R. v. Lewis (1984), 12 C.C.C. (3d) 353 at para. 14 (Ont. C.A.).) I will provide details of these offences later in this judgment.

7     After [REDACTED] report was delivered, the Crown made an application pursuant to s. 753(1) of the Code to have [REDACTED]declared a dangerous offender. I note that since the offences at issue occurred before July 2, 2008, the authority to declare him a dangerous offender resides in the former s. 753(1) of the Code. (See R. v. Bedard (2009), 247 C.C.C. (3d) 275 at para. 90 (Ont. C.A.).)

THE EVIDENCE LED AT TRIAL

8     I propose to summarize the evidence led at [REDACTED]'s trial, relating both to the offences of which he was convicted, and to the earlier robberies. As I have noted, this evidence was introduced as similar fact evidence, but is also relevant and admissible in relation to the dangerous offender application. After I complete this summary, I will outline what I consider to be the findings of fact necessarily encompassed by the verdict, and my own findings of fact. It will be apparent that my summary of the evidence is similar to the summary of the evidence that may be found in my reasons for sentence in respect of [REDACTED]. That should not be surprising. Counsel at that hearing agreed that the evidence at [REDACTED] trial was incorporated into [REDACTED] sentence hearing, and in fact, it formed the predominate source of my fact-finding in that hearing.

9     I will leave [REDACTED]'s evidence out of my summary. He denied any involvement in any of the robberies, including the robbery and killing of [REDACTED]. The jury's verdict necessarily precludes any possibility that they believed the offender's denial of involvement in the robbery and killing of [REDACTED], or that his evidence raised any reasonable doubt in any of their minds. While the verdict does not necessarily mean that the offender also participated in the three earlier robberies, I have absolutely no doubt that he did. I will explain why I reach this conclusion after I review the evidence.

10     The last robbery was clearly the last in a string of robberies perpetrated by the same two individuals. Everything about them points in this direction: the descriptions of the perpetrators; the disguises; the weapons; the modus operandi, in particular the taping of the victims; and the fact that there was a physical match between a torn end of a piece of duct tape taken from the Tulip Florist complainant's head on February 27, 2008, and the torn end of a piece of duct tape taken from the left wrist of [REDACTED] at the Flowers by Felicia robbery on February 28, 2008, which led an expert witness to opine that these two pieces of tape were once joined.

The Robbery and Killing of [REDACTED] on February 28, 2008

11     On February 28, 2008, [REDACTED] last customers left her shop at about 6:45 p.m., leaving her alone with her dog. A short time later, [REDACTED] and [REDACTED] entered the store masked, wearing gloves, and brandishing convincing imitation firearms. [REDACTED] quickly grabbed a hold of [REDACTED], and the two men started walking her towards the front of the store, guns in hand. When the dog barked, [REDACTED] told her to shut her dog up. She told the dog to be quiet. [REDACTED] then spotted the washroom and put her inside it. He then told [REDACTED] to tie her up, while he went to the front. After [REDACTED] was seated on something, [REDACTED] proceeded to tie her ankles and wrists, and cover her eyes, with the duct tape - the same duct tape that he had used in a robbery the night before. He tied her two or three times around her ankles, over and around her lap and wrists, as well as her eyes, perhaps twice each. She asked him "Why?" and he replied, "Be quiet we're not here to hurt you." [REDACTED] did not tape her mouth.

12     [REDACTED] then came to the washroom with five credit cards, and asked for the PIN numbers. When she was reluctant, he threatened to kill her dog. She gave a number, and [REDACTED]wrote it down. When [REDACTED] said that all the cards had the same PIN number, [REDACTED] got angry because he thought she was lying, and threatened to kill the dog again. [REDACTED] became upset, pulled off some of the tape, lifted her arms, stood up and pushed [REDACTED] chest, knocking him to the floor, and started screaming. [REDACTED] came into the bathroom, grabbed [REDACTED], took hold of her sweater and punched her twice on the side of the head. She began falling, ending up leaning against the wall. [REDACTED] then tied her up again and pulled her close to the racks in the bathroom. He tied duct tape around her arms and legs, and tied her to the racks with some rope that was in the washroom. When [REDACTED] began asking to be left alone, [REDACTED] tried to put a white rag from the washroom into her mouth. At this point she was lying on the floor and kept spitting the rag out. [REDACTED] told her to shut up, and told [REDACTED] to pick up the credit cards on the floor. The two men also took $3,830 that had been in [REDACTED] purse. When [REDACTED] was arrested on April 15, 2008, the police found $3,000 in cash secreted in his bedroom.

13     According to evidence given by [REDACTED], and there is no evidence to the contrary, after he picked up the credit cards, [REDACTED] thought he heard noise, and ran out to the car. [REDACTED] waited in the car, where [REDACTED] joined him a few minutes later. [REDACTED] asked if the woman was O.K., and [REDACTED] replied, "Yes, she's O.K., I just tied her up." He had in fact tied her up, and tightly duct taped up her entire face, covering her mouth and nose, as a result of which she suffocated.

14     The two men then proceeded to an ATM machine two minutes east on Sheppard Avenue. They put their masks back on, and [REDACTED] tried to make a withdrawal, but the machine was not working.

15     [REDACTED] usually closed her store at 7:00 p.m. and stayed on to do paperwork. Her husband called her several times that evening, but got no answer. Finally, he decided to drive to her shop. He arrived at the store shortly after 9:00 p.m. When he got there he noticed that the shelves in the front of the store had been moved. He then discovered his wife's dead body, bound and taped, lying on the bathroom floor. Mr. Hosany saw a white towel covering his wife's face. When he pulled it away, he saw duct tape on her face. He immediately grabbed his cell phone and called 911.

16     Within minutes, firefighters arrived on the scene. The first firefighter who entered the bathroom found the body of [REDACTED] lying on the floor, face down, with her hands tied together above her head by strong packaging twine and duct tape that circled her wrists very tightly two or three times, palms facing each other, and attached to shelving by twine and duct tape as well. Her legs were pointing to the door. He observed duct tape around her face, from below the lips to above the nose, covering both, a minimum of 2.5" in width, and circling her head at least twice, and probably more times. The tape was tight around her face, with her hair covering her eyes. The twine inside the duct tape around her wrists extended to her ankles and to the shelving. Duct tape also circled her ankles and calves tightly a couple of times.

17     The next person into the bathroom was a paramedic, who also observed the body of [REDACTED] face down on the floor, with her head and arms pressed to the back of the door. She said that the tape over [REDACTED]mouth covered a good portion of her face, extending about five or six inches, and went up to her eyes. She said that there was no exposure to her airway. There were no gaps in the tape, which fully encircled [REDACTED] head, and the tape was very snug. She could only insert her baby finger under the tape to permit her to start cutting it. The tape was wrapped three or four times around [REDACTED] head. Once she removed the tape, she said that [REDACTED] face was very bluish-purple. The pathologist who conducted the autopsy of [REDACTED]found injuries to her face, including bruising and damage to her lips, which he concluded were largely caused by compression of the face by duct tape. The tape exerted enough pressure on her face to cause injury.

18     As I have noted, [REDACTED] was called as a witness by the Crown at the trial of [REDACTED]. He gave evidence implicating both of them in the offences alleged against [REDACTED], as well as three robberies that preceded this offence. He gave this evidence voluntarily, and without securing any plea agreement from the Crown. The additional robbery charges are part of the full story of the killing of [REDACTED]. I will complete that story now.

The Henry's Robbery on February 1, 2008

19     [REDACTED] was born in St. Lucia, and came to Canada as a visitor in 2005 and resided with his brother. He overstayed his visit, and has no status in Canada. He met [REDACTED] in June 2007 while working in construction. They became friends. [REDACTED] testified that soon after they became friends, [REDACTED] began talking about robberies. [REDACTED] was working, and did not really want to become involved, but ultimately agreed to participate.

20     According to [REDACTED], a week or so before the first robbery, [REDACTED] bought two 6" to 7" long plastic guns, and they spray painted them.

21     On February 1, 2008, at about 10:45 a.m., the two men dressed in dark clothing and set out to execute their plan to rob a Rogers video store, but found the store closed. Instead, they robbed a Henry's camera store. They parked their car nearby, put on black gloves and masks supplied by [REDACTED], drew their guns and entered the store. Several employees and a couple of customers were present. [REDACTED] yelled at them to get down. [REDACTED] stood over one employee, while [REDACTED]walked another to the back of the store. [REDACTED] then began putting merchandise into large gym bags, as did [REDACTED]. After five or ten minutes, when their bags were full, they made their escape.

22     [REDACTED], an employee in the store that day, testified at trial. She confirmed the accuracy of security camera videos of the robbery, which in turn confirmed much of the evidence of [REDACTED] about the robbery, save for his evidence that he participated in this robbery reluctantly. The video shows him to be in disguise, walking around the store and using his gun to ensure that those present remained in terror, some cowering on the floor, others obediently assisting the robbers, all without hesitation or apparent reluctance on his part. [REDACTED] mentioned that while the two men were collecting cameras, they swore a lot, and used the word "bitch" frequently. She confirmed that during the incident, the taller man, undoubtedly [REDACTED], gave orders to the shorter man, and appeared to be the leader. When they left, they took several cameras and some money from the store safe.

23     In all, 31 cameras were stolen from the store, with a value of $34,249.49. When [REDACTED] was arrested, a blue cloth suitcase was seized in his residence. It contained eight brand new Canon cameras, six in boxes and two display models. Two of the cameras bore serial numbers that matched the serial numbers of cameras taken from Henry's. [REDACTED] testified that [REDACTED] gave him six of the cameras, and he was able to sell one or two of them.

The Beauty Collection Robbery on February 20, 2008

24     On February 20, 2008, a few weeks after the Henry's robbery, the two men robbed a beauty supply store called Beauty Collection. According to [REDACTED], they chose this shop because  [REDACTED] said he wanted to open a store in a flea market to sell hair and beauty supplies. He said that he had been looking at Beauty Collection for a long time, knew who worked there, and said that it would be easy.

25     On the day of the robbery, the two men drove to the store in the morning, and parked in back of the store on a side street. They stood on the sidewalk in front of the store for a few minutes to see what was going on inside. [REDACTED] told [REDACTED] that they would tie up the people and take the merchandise. [REDACTED] was to take control of the people in the store while  [REDACTED] took the supplies he wanted. After observing a female employee leave, they went inside wearing the same gloves and masks as before, and carrying the same imitation firearms as they had at Henry's.

26     When they got inside, [REDACTED] grabbed a male employee and forced him to the floor. He then began tying him up with duct tape and rope. He tied his legs and arms, and put tape around his eyes. While doing this, [REDACTED] told [REDACTED] to bring over the man's jacket. [REDACTED] removed his credit cards and asked for the PIN numbers. [REDACTED] wrote the PIN numbers down, and put them in his pocket.

27     [REDACTED] then told [REDACTED] to look for the most expensive hair extensions in the store. As he began to do so, the female employee who had left earlier returned to the store. [REDACTED]brought her to the back of the store and told [REDACTED] to tie her up. [REDACTED] wrapped duct tape around her wrists, arms, legs and eyes.

28     A female customer then entered the store, followed by a second one. The second woman began crying. [REDACTED] directed [REDACTED] to tie them up as well, which he did, using rope and duct tape. He roped all three women together. He also removed their cell phones, wallets and purses. Meanwhile, [REDACTED] was filling bags and boxes with hair extensions. When he was done, [REDACTED] pushed the victims into a storage room and closed the door. The two men left with their haul through a back door and drove away. They went to an ATM machine and both tried to withdraw money with the stolen cards, but they failed.

29     [REDACTED] and [REDACTED], the two employees of Beauty Collection who were robbed, testified about the robbery and confirmed much of what [REDACTED] said. I will summarize some of their evidence.

30     [REDACTED], who was the purchasing manager at the store, said that at about 9:35 or 9:40 a.m., two men entered the store wearing dark gloves, black clothing, and black masks that covered their faces and heads except for their eyes. The taller man ([REDACTED]) pointed a black gun about the length of a palm at him and seated him on the floor. Soon after, he was taken to the back of the store where he was seated again. There one of the men ([REDACTED]) bound his wrists snugly with his palms facing each other with yellow string, and also bound his waist and legs together. [REDACTED] asked [REDACTED]where his wallet was, and then placed gray duct tape over his eyes, around his head and over his mouth. It was not tightly bound, and [REDACTED]could see downward through a gap in the tape.

31     One of the men then lifted the tape over Mr. Han's eyes, showed him some credit cards, put his gun to Mr. Han's head and asked for PIN numbers. He said that if [REDACTED] gave him a wrong PIN number he would kill him. [REDACTED] gave them to him.

32     One of the men asked [REDACTED] for the store keys, and he told him where they were. He was then taken to a storage room, and heard the door of the store open and shut. After the two men left, it took [REDACTED] about 20 minutes to free himself. When he tried calling 911, he discovered that the phone had no dial tone. It had been working prior to the robbery.

33     The two men took [REDACTED] wallet, which contained $450, a credit card, a debit card and a library card.

34     [REDACTED] testified that she left the store at about 9:40 a.m. When she left, she saw two men in black clothes standing two doors down. One of them had a back pack. When she returned ten minutes later, she noticed that the store security cameras had been pulled down. When she entered, a masked black man ([REDACTED]) pointed a black gun at her face and pushed her to the back storage room. When she got to the storage room, she saw a woman on her knees crying. She took her hand and comforted her. She did not see [REDACTED]. A second man ([REDACTED]) appeared, tied her mouth tightly with duct tape wound two or three times around her head, and tied her wrists together loosely with duct tape. He tied the second woman the same way, and then tied her and the second woman together with yellow string around their waists. They were on their knees side by side.

35     A second customer came in and her mouth and hands were tied with duct tape in the same fashion. After a while, one of the men approached them and pushed them by the shoulders into a washroom, closed the door and turned out the lights. Probably five to seven minutes later, she heard the back door open and close. Three minutes later, [REDACTED] opened the washroom door, and they were able to slide out of the string and help each other remove the tape.

36     [REDACTED] said that the two men ransacked the store.

37     Three bags containing a total of 125 packages of hair weaves were recovered from [REDACTED]'s residence, as was a further box of hair weaves. [REDACTED] was able to identify the box of weaves recovered by the police as a box of weaves stolen from the store that morning. She said that the hair weaves the men took each cost, on average, from $100 to $180.

The Tulip Florist Robbery on February 27, 2008

38     After the Beauty Collection robbery, [REDACTED] told [REDACTED] that he wanted to rob Tulip Florist, a flower shop at 7398 Yonge Street, just north of Steeles Avenue, on Valentine's Day. This robbery was delayed, but finally took place on February 27, 2008. [REDACTED] told [REDACTED] that they would take credit cards and PIN numbers, and see if they could get money as well.

39     [REDACTED] said that they parked across the street from the store, and waited about 20 minutes because it was busy. When they finally entered the store, they were wearing the same masks and gloves and were brandishing the same guns as before. A woman was behind the counter. That woman was [REDACTED], the owner of the shop. [REDACTED] grabbed her, put her in a small back room and seated her on a bucket. [REDACTED] tied her up. He tied her ankles, wrists, legs and eyes with duct tape. When she complained that it was too tight, [REDACTED] loosened it. When she asked why they were doing this, he replied that they were not there to hurt her.

40     [REDACTED] returned from the front of the store and asked for the woman's wallet and credit card. When she said that she did not have any credit cards, he accused her of lying and kept asking for them in an angry voice. She said that she had left them at home. Finally [REDACTED] duct taped her mouth and they left.

41     According to [REDACTED], [REDACTED] took $80 and a small camera from the store.

42     On the way home from this robbery, the two men planned their next one.

43     [REDACTED] testified that she was alone in her store at 8:45 p.m. on February 27, 2008, when two masked men wearing black jackets and masks and carrying black guns maybe 10" to 12" long entered the store. One of the men ([REDACTED]) pointed his gun in her face, grabbed her by the shoulder, walked her to the back of the store and closed the back door. He then brought her to the front of the store and asked her to lie down on the floor.

44     The second man ([REDACTED]) was near [REDACTED] at that point, while the taller one was turning off the store lights and the store open sign. She refused to lie down, saying that it was too dirty. She was then taken to the flower cooler where [REDACTED] told her to sit on a bucket, and began taping her with gray duct tape. He taped her hands together, and then taped them to her knees. He also taped her eyes, mouth and feet. He broke the pieces of tape off the roll. The tape around [REDACTED] eyes and mouth circled her head, and was neither loose nor tight. She was still able to talk. [REDACTED] asked [REDACTED] to ask her where her credit cards were, which he did. She told him that they were not in the store. [REDACTED] replied, "Don't give me bullshit." He then told her, "We're not going to shoot you."

45     [REDACTED] remained in the cooler for about ten minutes. When she came out, the men were gone. She was able to untie herself enough to open the back door and call for help. People came in and untied her, and called the police. The two men took a digital camera, and $300 to $500 that had been in the cash register. In the course of the robbery, they disabled the telephone.

46     Although I will deal with the credibility of [REDACTED] account of the killing of [REDACTED] and the commission of the three earlier robberies under the next heading, I will say immediately that to the small extent that [REDACTED] account of the Tulip Florist robbery differs from [REDACTED] account, I prefer and accept her evidence.

FINDINGS OF FACT IN RELATION TO THE OFFENCES

47     There are three factual issues of significance to the determination of the appropriate sentence to be imposed on [REDACTED] that are not resolved by the jury's verdict. These are:

 

1.             Did [REDACTED] cause the death of [REDACTED] by his own acts, or as a party to the acts of [REDACTED]?

2.             What was [REDACTED]'s state of mind in relation to the killing of [REDACTED]?

3.             Did [REDACTED] participate in the three earlier robberies?

48     I will deal with each of these issues in turn.

 

                    1. Did [REDACTED] cause the death of [REDACTED] by his own acts?

49     The only direct evidence that casts light on who taped the face of [REDACTED] and caused her death was the evidence of [REDACTED]. Based on his evidence, the inescapable conclusion is that it was [REDACTED] who directly caused the death of [REDACTED]. But the jury's verdict leaves open a different possibility. In my charge, when discussing the question whether [REDACTED] caused the death of [REDACTED], one of the elements of murder (and, of course, manslaughter) in this case, I told the jury:

 

                    But I should explain something to you. [REDACTED] does not need to have done all of the things to [REDACTED] that caused her death to be responsible for causing her death. If he did some of them, while [REDACTED] did some of them, they could both be responsible for causing her death, so long as they each knew the nature of what was being done to her. And even if [REDACTED] did not directly do any of the acts that caused her death himself, it is still possible for him to be responsible for causing her death, in the following two circumstances. First, if he directed [REDACTED] to do those acts, intending that he do them, he would be responsible for causing [REDACTED] death. And second, if he did something else for the purpose of assisting [REDACTED] to do those acts, knowing the nature of what [REDACTED] was doing, then he would also be responsible for causing her death. If [REDACTED] did not do any of the things that I have just discussed, then of course he is not responsible for causing her death.

50     As a result, I am left to determine whether the evidence satisfies me beyond a reasonable doubt that [REDACTED] did the acts that caused the death of [REDACTED]. I have absolutely no doubt that he did. I am satisfied beyond a reasonable doubt that the manner in which she was taped and tied by [REDACTED], the position she was left in by [REDACTED], and the place she was left in by [REDACTED] resulted in her death by suffocation.

51     I reach this conclusion because I believe [REDACTED] account of this event, because I consider his account for the most part to be reliable, and because there is a great deal of other evidence that confirms his evidence. By way of example, I refer to the cell phone records for [REDACTED] cell phone on February 28, 2008, shortly after the robbery at Flowers by Felicia, viewed in conjunction with the Telus tower locations and the ATM records and video recording.

52     It was established in the evidence that the robbery at [REDACTED] shop must have taken place after 6:45 p.m., when [REDACTED] and her mother left the store, and probably shortly before 7:22 p.m., when two masked men tried to take $500 out of [REDACTED] account with her stolen credit card at an ATM only 1.3 km from the flower store. The taller man appears to have a cell phone in his hand.

53     The cell phone records reveal that at 7:23 and 59 seconds, about thirty seconds after the completion of the attempted withdrawal of funds from [REDACTED] account, a call was made to [REDACTED] cell phone. The call was transmitted to his cell phone from tower 0193, which is 0.3 km east of the ATM.

54     Of course, [REDACTED] testified to an entirely different explanation for these cell phone records. He said that he loaned his car to [REDACTED] that evening, and left his cell phone in it. His cell phone was with [REDACTED] at the time of the robbery, but he wasn't. This explanation is a handy contrivance, and is utterly unworthy of belief.

55     There is also the evidence of the $3,000 in cash secreted in [REDACTED] bedroom, found when he was arrested on April 15, 2008. This amount of money is similar to the amount of money apparently taken from Flowers by Felicia. Of course, [REDACTED] said that he was merely holding it for [REDACTED]. Once again, this explanation is a handy contrivance, and is utterly unworthy of belief.

56     In addition, the evidence independent of [REDACTED] evidence that implicates [REDACTED] in the three earlier robberies provides confirmation of [REDACTED] evidence implicating [REDACTED] in the robbery of Flowers by Felicia. I will not outline this line of reasoning in detail, but its contours may be found in my charge to the jury.

57     I find as a fact that [REDACTED] did the acts that caused [REDACTED] death.

 

                    2. What was [REDACTED]'s state of mind in relation to the killing of [REDACTED]?

58     The verdict of manslaughter means that the jury was not satisfied beyond a reasonable doubt either that the offender intended to kill [REDACTED], or that, he knew that what he was doing was likely to cause death. All that the verdict tells us is that a reasonable person would have appreciated that bodily harm that is neither trivial nor transitory was the foreseeable consequence of the dangerous act that was being undertaken.

59     The offender would have it that the verdict precludes the attribution of any alternative state of mind to him that aggravates the commission of the offence. I do not agree. The circumstances of this case lead me inexorably to the view that while the offender did not know that what he was doing was likely to cause death, he did know that what he was doing to [REDACTED] put her at risk of death, but he did not care. He was utterly indifferent to the consequences of his acts. No one of sound mind who taped the face of a victim as [REDACTED] did, and immobilized her in the way that he did, making her utterly incapable of freeing herself, could have known less.

 

                    3. Did [REDACTED] participate in the three earlier robberies?

60     Once again, while the jury's verdict does not necessarily mean that the offender also participated in the three earlier robberies, I have absolutely no doubt that he did. The robbery that resulted in the death of [REDACTED] was clearly the last of a string of robberies perpetrated by the same two individuals within a twenty-eight day period. Everything about them points in this direction: the fact that two of the robberies, committed one day apart, were, oddly, robberies of flower shops; the cell phone text and tower records place [REDACTED] in [REDACTED] company at various times before and after the robberies, and some of them place him very close to the robberies around the time that they occurred; the descriptions of the perpetrators fit [REDACTED] and [REDACTED] for the most part; the disguises are similar; the weapons are similar; the modus operandi, in particular the taping of the victims, is similar; and the fact that there was a physical match between a torn end of a piece of duct tape taken from the Tulip Florist complainant's head on February 27, 2008, and the torn end of a piece of duct tape taken from the left wrist of [REDACTED] at the Flowers by Felicia robbery on February 28, 2008.

61     In addition, there is evidence that loot from several of the robberies was found in [REDACTED] room. A red Nike shoebox was found under [REDACTED] bed and a black and gray hand bag beside it. The shoebox contained the $3,000 I have already mentioned, wrapped in an elastic band which had [REDACTED] DNA on it. The bag contained 26 packages of hair weaves. In addition, a very heavy black plastic garbage bag was found behind a tall dresser containing a further 59 packages of hair weaves, and a green nylon bag was found containing 40 packages of hair weaves. As well, a knapsack was found that contained a Canon camera box, as were a brown cardboard box containing hair weaves that has been specifically identified as having been taken from Beauty Collections, and a large blue cloth suitcase that contained eight brand new Canon cameras, six in boxes and two described as display models. Two of the cameras in the suitcase had serial numbers that matched the serial numbers of cameras taken from Henry's.

62     I am satisfied beyond a reasonable doubt that [REDACTED] was a participant in all of the robberies. Indeed, he was much more than a mere participant. I am satisfied beyond a reasonable doubt that it was [REDACTED] idea to commit the robberies, that he recruited [REDACTED], that he chose the places that were robbed, that he was the principal planner of the robberies, that he acquired and painted the plastic guns that were used in the robberies, that he was the leader throughout the robberies, that he gave orders to [REDACTED], and that he was the principal beneficiary of the robberies. I reach these conclusions based on the evidence of [REDACTED] together with the evidence of some of the victims, particularly [REDACTED], but also [REDACTED], [REDACTED] and [REDACTED].

DOES [REDACTED] FIT THE CRITERIA FOR A DANGEROUS OFFENDER?

63     For offences committed prior to July 2, 2008, the task of a judge hearing a dangerous offender application is, first, to determine if the offender fits the criteria for a dangerous offender in s. 753(1), and if so, then to determine whether, despite the threat to the life, safety or physical or mental well-being of other persons posed by the offender, the threat can be reduced to an acceptable level through the use of the sentencing options available under the long-term offender provisions.

64     Since the offences in this case were committed prior to July 2, 2008, I must follow that approach. I begin with a consideration of whether [REDACTED] fits the criteria for a dangerous offender in the former s. 753 of the Code. Section 753(1) of the Code reads as follows:

 

                    753.(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), 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, or

(iii)        any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender's behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; or

 

                    (b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.

Are the offences for which [REDACTED] was convicted serious personal injury offences?

65     A serious personal injury offence is defined in s. 752 of the Code, to the extent relevant here, as an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving: (i) the use or attempted use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person, for which the offender may be sentenced to imprisonment for ten years or more.

66     As I have noted, the jury found [REDACTED] guilty of manslaughter, robbery, unlawful confinement and using an imitation firearm. Each of these offences is punishable by imprisonment for ten years or more, and in each case, the offence involved the use of violence against another person. As a result, there is no doubt that the offences under consideration were serious personal injury offences. No argument was made to the contrary.

Does [REDACTED] constitute a threat to the life, safety or physical or mental well-being of other persons?

67     The defence concedes that the evidence establishes that [REDACTED] constitutes a threat to the life, safety or physical or mental well-being of other persons. As a result, I will spend little time considering this issue. It is sufficient to say that the evidence led before the jury, taken together with the expert evidence led by psychiatrists and psychologists called by both the Crown and the offender on this hearing, easily establishes:

 

(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.

Can the threat posed by [REDACTED] be reduced to an acceptable level through the use of the sentencing options available under the long-term offender provisions?

68     Pursuant to the former s. 753.1(1), a court may find an offender to be a long-term offender if it is satisfied that:

 

                    (a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;

 

                    (b) there is a substantial risk that the offender will reoffend; and

 

                    (c) there is a reasonable possibility of eventual control of the risk in the community.

69     Pursuant to s. 753.1(3), if an offender is found to be long-term offender, the court shall:

 

                    (a) impose a sentence for the offence for which the offender has been convicted, which sentence must be a minimum punishment of imprisonment for a term of two years; and

 

                    (b) order the offender to be supervised in the community, for a period not exceeding ten years, in accordance with section 753.2 and the Corrections and Conditional Release Act.

70     In a case where both the dangerous and long-term offender provisions are satisfied, and the sentencing sanctions available under the long-term offender provisions are capable of reducing the threat to the life, safety or physical or mental well-being of other persons to an acceptable level, a sentencing judge cannot properly declare an offender dangerous and sentence that offender to an indeterminate period of detention. (See R. v. Johnson, [2003] 2 S.C.R. 357 at para. 32.)

71     In this case, there is no doubt that the first two prerequisites to a long-term offender order are met. The only question for me to consider is whether there is a reasonable possibility of eventual control of the risk presented by [REDACTED] in the community through the use of the sentencing sanctions available under the long-term offender provisions. If there is, then I must impose those sanctions in preference to an indeterminate period of detention.

72     It is the position of the Crown that I should not be satisfied that there is a reasonable possibility of eventual control. The offender says that if the offender is imprisoned for another five years, and is made subject to a long-term offender order for an additional ten years, then I should be satisfied by the evidence that such a reasonable possibility exists. I note that this is not an issue that requires either party to satisfy a burden of proof. Rather it is an issue concerning the exercise of discretion by me based on the whole of the evidence (see R. v. F.E.D. (2007), 222 C.C.C. (3d) 373 at para. 50 (Ont. C.A.)). But if the evidence leaves me uncertain whether there is a reasonable possibility of eventual control of the risk presented by [REDACTED] in the community through the use of the sentencing sanctions available under the long-term offender provisions, then I must refuse to exercise the discretion not to declare the offender a dangerous offender (see F.E.D. at para. 44).

DOES [REDACTED] FIT THE CRITERIA FOR A LONG-TERM OFFENDER?

The evidence in relation to eventual control of the risk presented by the offender

The offender's personal and developmental history

73     The offender is 36 years of age. He was born in Jamaica, to parents that never cohabited. He never had a real relationship with his father, and was raised by his mother until he was five, when his mother moved to Toronto. The offender and his sister were raised by their grandmother and aunt until the offender was ten. He and his sister were then retrieved by their mother and brought to Toronto.

74     The offender's mother had married and had another child when the offender and his sister came to Toronto. The offender did not bond with his step-father, and according to his sister, the family dynamic was strained, and her mother and step-father dealt with the offender's behavioural problems with physical punishment weekly or monthly.

75     The offender attended school in Toronto, and was assessed as having learning problems. He attended five schools between grades 5 and 8, and his academic performance was spotty. He lacked focus and fooled around. He associated with peers who were involved in criminal activity. He failed grade 7. He ultimately attended secondary school for two years, but attained no credits. He was a "terrible" student in high school, was regularly truant, and was suspended five times for truancy. He associated with the same group of troublemakers.

76     [REDACTED] owned two guns during adolescence. The first was stolen, and the second was purchased with stolen money. He occasionally brought a gun to school, sometimes loaded.

77     He was involved in two break and enters of private residences at 13, stole three cars to joy ride at 14, and ran away from home briefly at 15. He participated in break and enters of stores to steal cigarettes and resell them to other stores at 16. He was defiant and disruptive between the ages of 15 and 18, both at school and at home.

78     The offender lived in his mother's home until he was 23 or 24, when he moved into a basement apartment for a few months. Over the next couple of years, he lived with friends. He moved into his sister's apartment in January 2008.

79     [REDACTED]'s employment history is virtually non-existent. He worked at a restaurant and the zoo for three or four weeks when he was 15, worked at a dry cleaning job for two days at 17, worked for six or seven weeks for a roofing company at 22, worked for four weeks at Canada Post at 22, delivered meat for four weeks at 28, and worked for two months for a brick company at 31. His excuses for quitting were varied (low pay, too demanding, too cold outside) but clearly he preferred to make money from his criminal activity, collect welfare and live as he pleased.

80     The offender had an alcohol abuse problem in 2003, and has used marihuana regularly since he was 16.

81     [REDACTED] is lazy by his own account, and has lacked the motivation to work. His behaviour has been impulsive, and he never thought about the consequences of his actions. He claims to have undergone a change in attitude in 2006, and says that he would like to pursue a trade at George Brown College. He did complete his high school diploma while incarcerated.

82     As shown above, the offender has an extensive criminal record. I have attached a helpful summary of his offences prepared by Crown counsel as appendix A to this judgment. I will further summarize it briefly now.

83     The offender was first convicted as a youth of break and enter and theft on June 12, 1989. He was subsequently convicted of possession of property obtained by crime over $1,000 and attempt to obstruct justice (May 13, 1991); failure to appear, assault and failure to comply (July 4, 1991); possession of an unregistered restricted weapon (a hand gun) (August 26, 1991); possession of property obtained by crime and theft under $1,000 (August 4, 1992); two counts of robbery (December 24, 1992). The sentences ranged from probation, to six months open custody for the weapon offence to one day secure custody in addition to seven months of pre-trial custody and two years probation for the robberies.

84     As an adult, the offender was convicted of two counts of conspiracy to commit robbery, three counts of robbery, two counts of using a firearm, possession of a prohibited weapon, possession of an unregistered restricted weapon, three counts of possession of property obtained by crime and two counts of disguise with intent (January 20, 1994); failing to attend court (July 7, 1999); possession of property obtained by crime over $5,000 (September 11, 2003); fail to comply, attempt theft under $5,000 and causing a disturbance (November 6, 2003); and possession of property obtained by crime (November 1, 2004.) He was sentenced to a total of 5 years and 6 months for the robbery and related offences.

85     The 1992 robbery convictions related to robberies committed in August 1991. In the first robbery, the offender and four other men robbed a convenience store. [REDACTED] and a second man had handguns in their possession, and robbed the employee at the cash register while the other men stole cigarettes. [REDACTED] held his gun to the employee's head and walked the employee to the cash register. In the second robbery, the offender and two other men robbed another convenience store. [REDACTED] was armed with a .22 calibre starter's pistol that had been altered to fire ammunition. The offender pointed his firearm at the victim and said, "This is a fucking robbery open the cash register." The offender admitted to [REDACTED]that he had committed a third robbery in August 1991. He and four friends robbed a donut store. Three of them, including the offender, had guns, which were not loaded, for purposes of intimidation.

86     The 1994 robbery convictions were committed during a period from March 14, 1993 to June 20, 1993. [REDACTED] and four other men were part of an organized group that planned and took steps towards the robbery a branch of the Bank of Nova Scotia and a branch of the Secul Credit Union. These robberies were never carried out.

87     On April 28, 1993, [REDACTED] and another male robbed a branch of the CIBC, disguised and armed with loaded handguns. [REDACTED] robbed an employee while the second robber barred the door.

88     On May 10, 1993, [REDACTED] and two others robbed a Becker's store armed with hand guns that were pointed at an employee. On that occasion, the offender was the driver of a stolen car and played the role of lookout.

89     On May 11, 1993, [REDACTED] and another man robbed a TD Bank branch. [REDACTED] pointed a gun at an employee and ordered her to her knees. He then put the gun to her back and ordered her into the vault. Once there, he told her she had seconds to open the safe, pointed the gun at her forehead and started counting down from ten. About $3,100 was taken from the bank.

90     On June 30, 1993, police officers seized a .22 calibre semi-automatic handgun in the offender's bedroom, and the $3,100 taken from the bank. The gun had a clip with four live rounds of ammunition, with one in the chamber, ready to be fired.

91     On his guilty pleas, the offender admitted committing four additional robberies in February 1993, and agreed that they could be taken into consideration in sentencing him.

92     On February 2, 1993, he and another man robbed a TD Bank branch while disguised. [REDACTED] was armed with a sawed-off shotgun, and announced, "Nobody move, this is a holdup, don't mess around." The other male, who was armed with a revolver, threw a knapsack at a teller and told her to fill it. [REDACTED] went to the rear of the teller and filled his pockets with cash. The two men took over $10,000.

93     On February 7, 1993, [REDACTED] and four others robbed a McDonald's restaurant. [REDACTED] was the lookout. The others had a sawed-off shotgun and a revolver.

94     On February 10, 1993, [REDACTED] and two others robbed a Royal Bank branch while disguised. The offender was armed with a sawed-off shotgun, and the others had handguns. The customers were ordered to the ground. The offender forced the manager to the vault at gun point while others filled gym bags with cash. As they left, [REDACTED] brandished his shotgun and yelled out that they were the "Scarborough Bandits". $46,000 was taken.

95     On February 12, 1993, [REDACTED] and another male robbed a CIBC branch. He was armed with a sawed-off shotgun, and the other man had a handgun. The offender ordered one employee to open the vault. When she tried to explain that she couldn't do so, he pointed the shotgun at her and said, "If you don't open the vault, I'll blow your fucking head off." The men took an undetermined amount of money.

96     With respect to the September 11, 2003 conviction, the offender was in possession of five rare collectible baseball cards valued at approximately $186,000.

The expert evidence

97     As I have already noted, I remanded [REDACTED] to the custody of [REDACTED] at CAMH to perform an assessment pursuant to s. 752.1 of the Code. [REDACTED] is a staff psychiatrist at CAMH. Her report was filed on consent, and in addition, she testified at this hearing. As a part of the assessment process, [REDACTED] was referred to Dr. [REDACTED], a psychologist in the Law and Mental Health Program at CAMH, for psychological testing. While she did not testify, her report was also filed at this hearing on consent.

98     In addition, the defence retained [REDACTED], a consultant in forensic psychiatry, to prepare a psychiatric report, and [REDACTED], a psychologist, to prepare a psychological assessment. They both testified at this hearing, and their reports were filed on consent.

99     Before discussing the evidence of the expert witnesses, I note again that the defence concedes that the evidence establishes that [REDACTED] constitutes a threat to the life, safety or physical or mental well-being of other persons. I would have reached the same conclusion regardless of the concession, based on evidence that establishes: (i) a pattern of repetitive behaviour by the offender, including these offences, showing a failure to restrain his behaviour, and a likelihood of his causing death or injury to other persons through a failure in the future to restrain his behaviour, and (ii) a pattern of persistent aggressive behaviour by the offender, including these offences, showing a substantial degree of indifference on his part respecting the reasonably foreseeable consequences to others of his behaviour. I reached these conclusions based on a review of the evidence led at this trial and an examination of the details of his criminal record, and the expert evidence.

100     [REDACTED] said that her risk assessment suggests that "[REDACTED] presents with a substantial risk of future violence." [REDACTED] was even stronger. He said, "[REDACTED] appears to be an individual at high risk of violence, and there appears to be a substantial risk that this violence may be of a serious nature." [REDACTED] scored [REDACTED] in the 85th percentile, and in the seventh of nine ascending categories for violent recidivism compared to the standardization sample on the Violence Risk Appraisal Guide ("VRAG"). She also scored him 18 out of 40 on the PCL-R, indicating that he exhibits only some of the personality features consistent with psychopathy. [REDACTED] also rated [REDACTED] recidivism risk to be moderate to high.

101     In light of the unanimity of expert opinion, and the defence concession, I see no need to further rehearse the expert evidence that supports these conclusions under this heading. The difficult issue, then, is the one now under consideration, whether the evidence satisfies me that there is a reasonable possibility of eventual control of the risk presented by [REDACTED] in the community through the use of the sentencing sanctions available under the long-term offender provisions.

102     The position of the defence is that there is a reasonable possibility of control of the risk presented by [REDACTED] in the community with five additional years of imprisonment (in the course of argument, counsel for the offender conceded that a sentence in the range of 12 to 14 years less credit for pre-trial custody might be appropriate) followed by a ten year long-term supervision order ("LTSO"). This position is derived from the predictions made by the expert witnesses. Predictions of future behaviour are notoriously unreliable. Before I can be satisfied that risk presented by [REDACTED] can be reduced to an "acceptable" level, the evidence that supports such a conclusion must amount to more than a mere hope of eventual control of the risk, but less than a demonstration of certainty. In assessing the evidence, I find it helpful to remind myself of what was said by Cronk J.A. in R. v. G.L. (2007), 225 C.C.C. (3d) 20 (Ont. C.A.) at paras. 41-42:

 

41.         In R. v. McCallum (2005), 201 C.C.C. (3d) 541, leave to appeal to S.C.C. refused, [2006] S.C.C.A. No. 145, this court stated at para. 47:

 

                    Case law from this court and from the British Columbia Court of Appeal under the former dangerous offender legislation and the amended provisions has held that in order to achieve the goal of protection of the public under the dangerous offender and long-term offender provisions, there must be evidence of treatability that is more than an expression of hope and that indicates that the specific offender can be treated within a definite period of time: R. v. Poutsoungas (1989), 49 C.C.C. (3d) 388 (Ont. C.A.); R. v. Higginbottom (2001), 156 C.C.C. (3d) 178 (Ont. C.A.). In R. v. M. (J.S.) (2003), 173 C.C.C. (3d) 75 (B.C.C.A.), the court stated that the basic purpose of the dangerous offender provision before the 1997 amendment was the protection of the public and that under the amended legislation, the test for achieving that goal is set out in s. 753.1(1)(c), namely, whether there is a reasonable possibility of control in the community of the risk of the offender re-offending. The court also noted that the French version of the section requires "une possibilité réelle," or a "real possibility," which may require an even higher degree of certainty in the evidence than the English version, a "reasonable possibility."

 

                    See also R. v. Grayer (2007), 215 C.C.C. (3d) 505 at para. 70 (Ont. C.A.); R. v. Allen, [2007] O.J. No. 2226 at para. 28 (C.A.).

 

42.         I do not read Johnson as displacing the principle that, to achieve the goal of protection of the public under the dangerous offender and long-term offender provisions in the Code, evidence of treatability that (i) is more than mere speculative hope, and (ii) indicates that the specific offender in question can be treated within an ascertainable time frame, is required. The requisite judicial inquiry on a dangerous offender application, mandated by Johnson, is concerned with whether the sentencing sanctions available under the long-term offender provisions of the Code are "sufficient to reduce [the offender's] threat to an acceptable level." [Emphasis added.] The determination of whether an offender's risk can be reduced to an "acceptable" level requires consideration of all factors, including treatability, that can bring about sufficient risk reduction to ensure protection of the public. This does not require a showing that an offender will be "cured" through treatment or that his or her rehabilitation may be assured. What it does require, however, is proof that the nature and severity of an offender's identified risk can be sufficiently contained in the community, a non-custodial setting, so as to protect the public.

103     I understand that the word "treatment" in these cases has a broad meaning, and includes not only treatment for mental illness, but also rehabilitative programs designed to ameliorate personality disorders.

104     With the framework discussed in G.L. in mind, I turn to the views of the experts.

[REDACTED]

105     I begin with [REDACTED], the psychiatrist called by the Crown. I will briefly discuss the basis upon which she concluded that the offender poses a risk to the community. Only then can her evidence concerning eventual control of that risk be understood.

106     [REDACTED] expressed the view [REDACTED] suffers from no major mental illness. Instead, she said that he meets the criteria for conduct disorder of adolescent onset and for antisocial personality disorder. When personality traits are maladaptive and inflexible, and cause social or occupational dysfunction, then personality disorders such as these are said to exist. The essential feature of antisocial personality disorder is a pervasive pattern of disregard for, and violation of the rights of others. While the presence of only three of the indicators for antisocial personality disorder are necessary for such a diagnosis, almost all of them are present in [REDACTED] case, including:

 

*               Failure to confirm to social norms with respect to lawful behaviours;

*               Deceitfulness as indicated by the use of aliases;

*               Impulsivity or a failure to plan ahead;

*               Irritability or aggressiveness;

*               Reckless disregard for the safety of others;

*               Consistent irresponsibility as indicated by a repeated failure to sustain consistent work behaviour; and

*               Lack of remorse, as indicated by being indifferent to, or rationalizing, having hurt or stolen from

others.               

107     Individuals with antisocial personality disorder are generally considered to be untreatable. There is little evidence suggesting that these individuals are capable of personality change even with assiduous treatment. However [REDACTED] testified that in her view, while there is no treatment for antisocial personality disorder per se, there are particular treatment or management modalities that can be used with individuals who suffer from this particular personality dysfunction, and these are mainly around "consequencing" individuals for their behaviour. Treatment for antisocial personality disorder primarily focuses on anger management, social skills training, and vocational training. Management is focussed on independent verification of information, the development of fair and predictable consequences for behaviours, and maintenance of firm, consistent boundaries

108     While she thought that there would be challenges from a psychiatric perspective regarding [REDACTED] manageability in the community, she concluded that there was a reasonable possibility that he could respond to interventions designed to manage his risk in the community, and that this would meet the criteria for a finding that he is a long-term offender. In reaching this conclusion, she took into account a number of factors, (p. 60 et seq.) including:

 

1.             Considering the offender's primary diagnosis of antisocial personality disorder is difficult to treat, there is some reason for pessimism, given his limited capacity for empathy, and the fact that his past criminal conduct was driven by personal gain with little if any consideration of the impact of his actions on victims. This is ameliorated to a degree by his score on the psychopathy checklist, which was average compared to other offenders.

2.             He has expressed a willingness to participate in programming, and based on his history, if it were offered to him, he would participate, although he was not sufficiently motivated for treatment to pursue it on his own. [REDACTED] considered this to be a fairly positive prognosis overall. While [REDACTED] noted in her report that there is little research indicating that the desire to pursue treatment or to comply with supervision is related to a reduction in recidivism, she went on to say that [REDACTED] completion of cognitive skills and living without violence programs during incarceration 15 years ago, his attaining a high school diploma in prison, his attending counselling while on probation and his attitude to programming are positive. This is tempered by the fact that the offender is passive about treatment and does not pursue it proactively in the community. In the end, she said that he has a fairly positive prognosis with respect to engagement in programming, especially if directed by a person or institution.

3.             His past response to treatment while under supervision was generally positive, although, based on his risk cycle, he hasn't fully internalized the risk management skills from the programming that it was hoped that he would. She concluded that [REDACTED] is more motivated when there are strict external controls or consequences present.

4.             His history of unstable employment is risk-enhancing, but his involvement in vocational programming when it was offered to him while under intense supervision is risk reducing. His employment prospects are limited, but with external support and structure, he would be more likely to pursue vocational activities.

109     Taking these variables into account in addition to the risk assessment tools, and given his history and his stance at the current time, and despite the fact that there may be challenges in terms of managing him, including his tendency to associate with criminal peers, his impulsivity and his emotional and interpersonal deficits, she concluded that there was a reasonable possibility that after undergoing treatment in an institution, he could ultimately respond to intense supervision and external controls in the community.

110     When asked what she could say about the risk of [REDACTED] re-offending in the community at a period in time when those external controls no longer exist, that is, once a long-term supervision order expires, [REDACTED] said that it is very difficult from a psychiatric perspective to look fifteen or more years into the future in order to make any clear statements about risk after [REDACTED] has undergone treatment both in an institution and in the community, as well as a lengthy period of supervision. Some of his risk variables may respond to interventions but some would not be expected to. In addition, while she agreed that risk decreases with age, but it is difficult to quantify the decrease, and other factors need to be taken into account.

[REDACTED]

111     [REDACTED] also diagnosed [REDACTED] with antisocial personality disorder. His analysis did not differ markedly from [REDACTED] analysis. He concluded that taking into account actuarial and structured professional judgment risk assessments, [REDACTED] history of violence to several victims, and the type of violence committed, there appears to be a high risk of [REDACTED] engaging in physical violence and a substantial risk that this violence will involve significant physical harm, flowing not from any strong intention to hurt others, but from a lack of empathy, recklessness and irresponsibility.

112     [REDACTED] testified that in his opinion, if [REDACTED] were released into the community right now without treatment or supervision, he would be at high risk, in other words he would constitute a threat to the life, safety or physical well-being of other persons, because anything that he has learned over the last four years while in custody would probably erode. [REDACTED] continues to have significant deficits, and needs to make a sustained lifestyle change. The best way to accomplish this is through treatment before he is released under supervision, and tight supervision on an LTSO after he is released that keeps him on track.

113     [REDACTED] shared [REDACTED] concerns about the challenges in treating and managing individuals with antisocial personality disorder. He said that antisocial personality disordered individuals who are not psychotic, as is the case with [REDACTED], are generally more treatable than persons who suffer from psychopathy. He found it encouraging that [REDACTED] has been described as suffering from poor self-esteem, dependency and depressed mood, which may make him a better candidate for treatment. In the end, it was his opinion that while [REDACTED] is an individual at high risk of violence, his risk can be successfully managed in the community on an LTSO.

114     But to manage his risk successfully, [REDACTED] will require professional assistance and monitoring. He needs to be treated institutionally, and after acquiring skills, he needs to be gradually tested in the community. He anticipated that [REDACTED] will be able to learn by way of the programming available in an institution within a few years, and recommended that his release be tied to his institutional performance to maximize his motivation to fully participate in that programming.

115     With respect to treatment, [REDACTED] enumerated the risk factors that needed to be managed, including his lack of insight into his risk of violence and his denial of having committed violence against others, and suggested that should live as structured a lifestyle as possible to avoid placing his coping strategies under excess duress.

116     The treatment [REDACTED] requires must be intensive. He will need frequent sessions, and his treatment programming will need to stay on track. He needs to have experienced clinicians working with him. His treatment should be a cognitive behavioural approach and a relapse prevention approach using "a stages of change" model. [REDACTED] should be looking at his antisocial attitudes - any circumstances and attitudes that contribute to crime and violence. As part of his treatment approach, attention must be paid to his lack of insight, his poor coping mechanisms and getting him the skills to adapt in a pro-social way in the community. He may also need treatment for his cannabis and alcohol abuse.

117     Even after treatment, given [REDACTED] assessed risk, risk factors, and history of difficulties with supervision, [REDACTED] must be re-integrated into the community gradually, and with a plan. He needs to go in steps. The supervision must be very lengthy, and must include consequences if he veers off. It must include things like preventing him from having weapons or knives in his residence, random urine drug screenings, ensuring that he doesn't have contact with antisocial peers, and doing something structured and pro-social in the daytime, followed by a curfew.

118     With respect to supervision, [REDACTED] said that it is unclear if any treatment success would translate into an absence of recidivism in the community absent further external controls on his behaviour. He thought that professional supervision would be very important in risk management, given that his family members do not fully grasp the depth of his criminal history. [REDACTED] enumerated the strict terms of future release that he thought were necessary.

119     If such a plan were followed, it was [REDACTED] opinion that the risk posed by [REDACTED]could be successfully managed in the community. In other words, there is a reasonable possibility of eventual control of the risk in the community that the offender will reoffend. He reached this conclusion because, he said, [REDACTED] has responded well to a prior parole period, and when treatment was offered to him, he engaged in it successfully. [REDACTED] problem, he said, has been following through, for the long term, on what he has learned. He agreed with [REDACTED] that his risk cycle suggests that he has not fully internalized risk management skills. He also said that while [REDACTED] accepts his need for assistance, he underestimates it.

120     Given [REDACTED] history, [REDACTED] acknowledged the risk that once [REDACTED] is no longer required to follow up with treatment and supervision, he will fail to do so, and his pro-social skills will gradually erode. To avoid this, and to best manage his risk of violence, the period of community supervision should be as long as possible, to allow for timely intervention should [REDACTED] take steps in the direction of criminal lifestyle. This would allow him to make a significant, pervasive and sustained change in his lifestyle.

121     Finally, [REDACTED] said that [REDACTED] risk of violence will be lower after ten years of supervision, because he will be older.

122     In cross-examination, [REDACTED] was asked what assurance there was that notwithstanding five more years of treatment and ten more years of supervision, those skill sets that [REDACTED] may or may not learn will erode. He of course agreed that he cannot make hard and fast predictions. He said that if [REDACTED] does well on a ten year LTSO, without being returned to custody, and without committing other offences, and he has managed to change his lifestyle, the probability would be a lot better than if he has great difficulty on an LTSO. In the end, he thought that the public is safer overall with [REDACTED] on an LTSO than a long period of incarceration, and that a dangerous offender designation is not necessary.

123     It was also the opinion of Dr. [REDACTED] that [REDACTED]could be managed in the community provided appropriate and intensive supervision supports are in place and maintained in place for a significant amount of time.

Analysis

124     I am faced with what no doubt is an unusual situation. The expert witnesses called by both the Crown and the offender all agree that all three prerequisites to a long-term offender order are met in this case. In particular, they all agree that the third prerequisite is satisfied - there is a reasonable possibility of eventual control of the risk presented by [REDACTED] in the community through the use of the sentencing sanctions available under the long-term offender provisions. It was the opinion of [REDACTED] that despite the challenges, there was a reasonable possibility that [REDACTED] could respond to interventions designed to manage his risk in the community. Similarly, it was the opinion of [REDACTED] that while [REDACTED] is an individual at high risk of violence, his risk can be successfully managed in the community on an LTSO. I note that for the most part, based on the very helpful evidence of [REDACTED], a long-time employee of Correctional Services Canada and currently the Area Director for the Downtown Toronto Parole Office, the resources needed to carry out the treatment and supervision recommended by the expert witnesses are available in the federal correctional system.

125     In my view, while the opinions of [REDACTED] and [REDACTED] are certainly hopeful, in each case they amount to more than just a hope. Both opinions have a basis in the evidence. I cannot help but observe, however, that the evidentiary foundation for these opinions is frail. They are primarily based on [REDACTED] expressed willingness to participate in programming, his completion of a cognitive skills program and a living without violence program during incarceration fifteen years ago, his attaining a high school diploma in prison while awaiting trial and sentencing in this matter, and his attending counselling while on probation. The expert witnesses hold these opinions despite: the offender's passivity about treatment and his failure to pursue it proactively; his failure to "fully" internalize the risk management skills from the programming that it was hoped he would, as reflected by his sorry history of violent recidivism; his limited employment prospects; his lack of insight into his risk of violence; his significant minimization of the potential impact of his behaviour on other people, including victims and his own family members; his lack of remorse; and his denial of having committed violence against others.

126     In [REDACTED] probing examination of [REDACTED] and her skilful cross-examination of both defence experts, she confronted these witnesses with every weakness in the underpinning of their opinions. In her conspicuously able argument, she effectively marshalled these weaknesses, and urged me not to be satisfied that there is a reasonable possibility of eventual control of the risk in the community.

127     Needless to say, I am not obliged to accept the opinion of an expert witness, or even the unanimous opinion of three expert witnesses called by both the Crown and the offender. Certainly in this case I share the Crown's view that there is a great deal of uncertainty in the conclusion that the risk posed by [REDACTED] will ultimately be manageable. At the same time, however, I bear in mind that the third prerequisite for a long-term offender finding does not demand certainty or even probability of eventual control, but only a reasonable possibility of eventual control. Based on the evidence of the expert witnesses, viewed in the context of the whole of the evidence, I am satisfied that there is such a reasonable possibility of eventual control of the offender while he is subject to an LTSO, after first serving a significant period of imprisonment during which the offender undergoes intensive treatment.

128     There remains to be considered, however, the question of control of the risk posed by [REDACTED] in the community many years in the future. This is of particular concern when the "treatment" in issue is not treatment of a mental illness, but rather of maladaptive and inflexible personality traits which are untreatable per se, and probably cannot be changed. Instead the treatment is directed to bringing about a sustained lifestyle change through the use of management modalities designed to internalize risk management skills in [REDACTED]. This is no small task for this offender, whose management skills have persistently eroded in the past once free of supervision.

129     While the evidence in this case mostly centred on risk management in the community while the offender is under supervision, there can be no doubt that the third criterion for a long-term offender order is focussed on the post-LTSO period as well. If authority be needed for this proposition, I refer to the decision of Barclay J. in R. v. L.C.W., 2000 SKQB 302, [2000] S.J. No. 422. The following language in para. 129 of that judgment has been adopted in this province by Nordheimer J. in R. v. D.J.D., [2003] O.J. No. 5447 at para. 40 (S.C.J.) and by J. Macdonald J. in R. v. Walford, [2007] O.J. No. 744 at para. 78 (S.C.J.):

 

                    It is my interpretation of the amendments to the Criminal Code and in particular the long-term offender provisions, that the term reasonable possibility of eventual control in the community, must refer to a set of circumstances where, during the term of the supervision order, the offender is likely to be rehabilitated such that when the supervision order expires the accused is not a substantial risk to re-offend. It is my view that Parliament never intended in enacting these amendments that an offender could be designated as a long-term offender because he can be controlled while under a supervision order notwithstanding that he would be a substantial risk after supervision is terminated.

130     What do the experts say about control after the LTSO is terminated? As I have already noted, when [REDACTED] was asked what she could say about the risk of [REDACTED] re-offending once a long-term supervision order expires, [REDACTED] said that it is very difficult from a psychiatric perspective to look fifteen or more years into the future in order to make any clear statements about risk after [REDACTED] has undergone treatment both in an institution and in the community, as well as a lengthy period of supervision. Some of his risk variables may respond to interventions but some would not be expected to.

131     [REDACTED] said that given [REDACTED] history, there is a risk that once [REDACTED] is no longer required to follow up with treatment and supervision, he will fail to do so, and his pro-social skills will gradually erode. To avoid this, and to best manage his risk of violence, the period of community supervision must be as long as possible, so that timely intervention will be possible should [REDACTED] take steps in the direction of criminal lifestyle. This would allow him to make a significant, pervasive and sustained change in his lifestyle.

132     In addition, [REDACTED] said that [REDACTED] risk of violence will be lower after ten years of supervision, because he will be older. [REDACTED] agreed that the risk of violence decreases with age, but she said that it is difficult to quantify the decrease, and other factors need to be taken into account. Unfortunately, she was not asked about a more case-specific point made by [REDACTED] on this issue. [REDACTED] said that [REDACTED] is "unique" in the sense that he does not go around looking for fights, or looking to hurt others. His violence is almost a by-product of trying to obtain material things. As I understood [REDACTED], he was not attributing any praiseworthy characteristic to [REDACTED]. He was simply saying that he hurts people to get what he wants - when he commits robberies. He does not hurt people for nothing. And since general criminal offending, such as committing robberies, does decrease with time, [REDACTED] violent behaviour will likely go down with the process of aging as well. In my view, this point is both logical and pertinent.

133     I have said that there is a great deal of uncertainty in the conclusion that the risk posed by [REDACTED] will ultimately be manageable while he is under supervision. The uncertainty after supervision ends is surely greater. On the other hand, it would be disingenuous for the experts to profess to be any more certain than they are about a period of time so many years in the future, without knowing the extent to which the treatment and supervision they recommend will be successful. Nonetheless, having regard to the evidence I have just outlined, and in particular [REDACTED] evidence about aging, I am satisfied that there is a reasonable possibility of eventual control of the offender after his LTSO is terminated.

134     As a result, I find the offender to be a long-term offender, and I turn to the determination of the appropriate sentence.

THE APPROPRIATE SENTENCE

135     I have already noted that pursuant to s. 753.1(3) of the Code, if an offender is found to be a long-term offender, the court shall:

 

                    (a) impose a sentence for the offence for which the offender has been convicted, which sentence must be a minimum punishment of imprisonment for a term of two years; and

 

                    (b) order the offender to be supervised in the community, for a period not exceeding ten years, in accordance with section 753.2 and the Corrections and Conditional Release Act.

136     As a result, I must determine the length of both the mandatory period of imprisonment to be imposed on the offender, and the length of the LTSO. The second determination is easy. The Crown asks for the maximum - ten years. The experts collectively have said that the longest possible period is desirable, for reasons I have already discussed. The defence preferred a slightly shorter period, but effectively agrees that ten years would be appropriate. I have no doubt on this issue, and order the offender to be supervised in the community for a period not exceeding ten years in accordance with section 753.2 of the Code and the Corrections and Conditional Release Act.

137     I turn next to the period of imprisonment.

138     I begin by recalling that the dangerous offender/long-term offender sentencing regime is a "specialized measure" targeted at offenders who clearly pose a threat to the security of our communities. The primary purpose of this regime is the protection of the public. When imposing sentence on a long-term offender, the nature of the crime and the circumstances of the offender call for the elevation of the goal of public protection over the other purposes of sentencing. The sentence imposed on a long-term offender must fulfil with that goal. At times, this may result in a longer sentence than that would likely have resulted from the application of the other principles of sentence (see R. v. Edwards, 2008 ONCA 414, [2008] O.J. No. 2055 (C.A.)).

139     Here, in order to impose a workable long-term offender order, the period of imprisonment must be lengthy. But in this case, as will be seen, the ordinary principles of sentence call for a sentence that is very lengthy in any event.

140     Because this sentence hearing included a dangerous offender application, which necessarily focussed on ultimate rehabilitation, it appeared to me that at times there was a tendency for some of the witnesses, if not counsel, to lose sight of the relevant principles of sentence, and to unduly focus on what would be best for [REDACTED] rehabilitation. For example, in his evidence, [REDACTED]raised his concern that individuals like [REDACTED] may respond to punitive measures in such a way that actually makes them worse if imprisonment goes on for too long. Of course, only time will tell if [REDACTED] is correct. But I cannot sacrifice the application of the principles of sentence mandated both by Parliament and by jurisprudence on the altar of rehabilitation theory.

141     To determine what a fit sentence is for [REDACTED] for the crimes of which he has been convicted, it is helpful to recall briefly the fundamental purpose of sentencing, the objectives of sentencing that govern and the relevant principles of sentencing.

142     Section 718 of the Code provides that the fundamental purpose of sentencing is to contribute, along with other crime prevention initiatives, to respect for the law, and the maintenance of a just, peaceful and safe society by imposing just sanctions with statutorily defined objectives. These objectives include, but are not limited to: denunciation; specific and general deterrence; separation of offenders from society where necessary; rehabilitation; promotion of a sense of responsibility in offenders for their crimes and acknowledgement of the harm done to victims and the community.

143     Section 718.1 provides that the fundamental principle of sentencing is that the sentence should be proportionate to the gravity of the offence and the degree of responsibility of the offender. In addition, as pertinent here, s. 718.2 provides that the sentence should take into account aggravating and mitigating circumstances; should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (the disparity principle); and, where consecutive sentences are imposed, should not be unduly harsh (the totality principle).

144     In applying these principles to this case, I begin by observing that only a lengthy penitentiary sentence could be considered to be proportionate to the gravity of the offences committed by [REDACTED]. His offences were terrifying and very grave. They involve both premeditation and a callous disregard for others. They exhibit an attitude of entitlement at the expense of others to a degree that is difficult to comprehend.

145     Having regard to the circumstances of the offences, as well as the offender, I consider it appropriate to emphasize denunciation of the conduct in question, deterrence of the offender and others, and the necessity of separating the offender from society, without losing sight of the need to assist in the offender's ultimate rehabilitation. I also bear in mind that the sentence must be proportionate to the gravity of the manslaughter offence in particular, and the degree of responsibility of the offender.

146     I also take into account the many aggravating features of the offences committed by [REDACTED]. [REDACTED] committed the robbery while disguised and armed with an imitation gun. He restrained the victim, and treated her in a most horrifying and intimidating manner even before he killed her. The robbery was not an isolated act, but rather was a part of a crime spree - an ongoing string of robberies in which a considerable amount of money and property was taken, most of which ended up in his possession. It was [REDACTED]'s idea to commit the robberies. He recruited the younger, inexperienced and record-free [REDACTED] to participate in the robberies with him. [REDACTED] chose the places that were robbed. He was the principal planner of the robberies. He acquired and painted the plastic guns that were used in the robberies. He was the leader throughout the robberies. He gave orders to [REDACTED]. In addition, I take into consideration the profound effect these crimes had on the direct and indirect victims of these offences. And most importantly of all, I bear in mind that it was [REDACTED] who actually did the act that caused the death of [REDACTED], and that he did it in a manner that reflected his callous indifference to the well-being of those who stand in the way of his selfish goals. This was not a simple restraining of a robbery victim gone wrong. [REDACTED] knew that what he did would put [REDACTED] at risk of death, but he did not care. He proceeded recklessly, and he killed her. The horrors of her final moments of life are beyond imagination.

147     As for mitigating factors, I can think of none.

148     The sentence I impose in this case must also be lengthy in order to meet the objectives of sentencing that must predominate in the circumstances I have described. Denunciation, specific and general deterrence and the separation of [REDACTED] from society must predominate. It must also reflect the seriously aggravating features I have outlined. At the same time, I must not lose sight of the fact that there is some prospect of rehabilitating [REDACTED] in the very long term, or at least training him to control his capacity for violence. Having said all of this, the question remains: how long should the sentence be?

149     I have noted that I sentenced [REDACTED] to a term of imprisonment for 12 1/2 years, consisting of 10 years for manslaughter, and 2 1/2 for each of the three other robbery offences he pleaded guilty to, concurrent to each other but consecutive to the manslaughter sentence. I would have made all of the sentences consecutive, resulting in a 17 1/2 year sentence, but in [REDACTED] case, taking into account the significant mitigating circumstances, I concluded that a sentence of that length for [REDACTED] had to give way to the totality principle.

150     But the sentence I imposed on [REDACTED] in no way constrains the sentence that may be imposed on [REDACTED]. The mitigating circumstances I just made reference to, including the following facts: [REDACTED] pleaded guilty; he is still a relatively young man; he has no criminal record; he is remorseful; he confessed his guilt at an early stage and cooperated with the Crown by testifying against [REDACTED] without any plea arrangement, and at significant risk to his well-being in prison; he played a secondary role in the offences; while he participated in the acts that resulted in the death of [REDACTED], it was [REDACTED] who finally taped her mouth and nose in a manner that caused her to suffocate; and that [REDACTED] will be deported upon his release from imprisonment.

151     It seems clear to me that [REDACTED] offences should attract a significantly longer sentence than [REDACTED] offences. The disparity principle has no role to play here.

152     In my reasons for sentence in relation to [REDACTED], I stated, at para. 59:

 

59.         Manslaughter encompasses homicide in so many and varying conditions that it is unsurprising that sentences imposed for this offence are exceptionally varied, and have included everything from suspended sentences to sentences of life imprisonment. But patterns of sentencing for different categories of manslaughter can be discerned. [REDACTED], for the Crown, correctly in my view, identified the ordinary range of sentence for an aggravated manslaughter such as this one as 8 to 12 years imprisonment, remembering of course that the circumstances of an offence or an offender can move the sentence above or below this range. For support for this range of sentence, see R. v. [REDACTED] (2003), 172 O.A.C. 133 (C.A.) and R. v. Atherley, [2009] O.J. No. 834 (C.A.).

153     I continued, at para. 62:

 

62.         I am of the view that [REDACTED] has hit the mark in his recommendations for the proper sentences to be imposed for each of the offences individually, but that he has missed the mark marginally in his overall recommendation by not giving adequate effect to the principle of totality and, perhaps, to the mitigating effect of remorse and cooperation.

154     There can be no question that the sentence that I impose on [REDACTED] should be markedly greater than the sentence I imposed on [REDACTED]. The disparity principle, codified in s. 718.2(b), that "a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances" presents no obstacle. Although [REDACTED] and [REDACTED] were co-offenders, and committed the same offence of manslaughter, [REDACTED] sentence must be increased significantly to account for the many aggravating circumstances relating both to him and to his role in the commission of the offence (see s. 718.2(a)).

155     The distinctions between the offenders include the following:

 

a)             [REDACTED] was a first-time offender, while [REDACTED] has a serious criminal record including many crimes of violence.

b)             [REDACTED] pleaded guilty. [REDACTED] did not. I recognize that exercising the right to a trial is not an aggravating consideration on sentencing. I merely point out that [REDACTED] got the benefit of the mitigating effect of a guilty plea, while [REDACTED] will not.

c)             [REDACTED] was still a young man. [REDACTED] is not.

d)            [REDACTED] is remorseful. [REDACTED] is not.

e)             [REDACTED] confessed his guilt at an early stage, co-operated with the Crown, and testified against [REDACTED] at significant risk to his well-being in prison, without any plea arrangement.

f)              [REDACTED] will be deported after he completes his sentence. [REDACTED] will not.

156     The distinctions between the roles played by the offenders in the commission of the offence include the following:

 

a)             It was [REDACTED] idea to commit the robberies.

b)             [REDACTED] recruited [REDACTED], who was younger and inexperienced.

c)             [REDACTED] selected the places to rob.

d)            [REDACTED] was the principle planner of the robberies.

e)             [REDACTED] acquired the weapons used in the robberies.

f)              [REDACTED] was the leader throughout the robberies.

g)             [REDACTED] treated [REDACTED] brutally throughout, threatening to kill her dog when she hesitated about providing her PIN number, punching her twice in the head when she resisted being tied up, and placing a rag in her mouth to keep her quiet.

h)             Most importantly, [REDACTED] actually caused [REDACTED] death, taping her arms and legs with duct tape, taping her face tightly, and then tying her to racks in a cramped, dark bathroom and closing the door, ensuring that she had no escape from death.

157     I return to what I said in sentencing [REDACTED], that Crown counsel correctly identified the ordinary range for an aggravated manslaughter as 8 to 12 years, remembering that the circumstances of an offence or an offender can move the sentence above or below the range. I relied on two Court of Appeal judgments in making this comment (R. v. [REDACTED] (2003), 172 O.A.C. 133 (C.A.) and R. v. Atherley, 2009 ONCA 195, [2009] O.J. No. 834), but since there was no suggestion of imposing a sentence outside the ordinary range, I did not refer to R. v. Devaney (2006), 213 C.C.C. (3d) 264 (Ont. C.A.). In this case, Devaney is instructive.

158     In Devaney, at trial, Crown counsel asked the trial judge to impose a sentence of life imprisonment on an offender who had been convicted of manslaughter. The trial judge imposed a sentence of 11 years, less credit for pre-trial custody, [2004] O.J. No. 6160. On appeal, the Crown asked the court to increase the sentence to one of 18 to 20 years. The appeal was dismissed. Feldman J.A. stated that while the trial judge could well have concluded that this was a case that called for a sentence outside the range established in the [REDACTED] decision, he did not impose a sentence that was manifestly unfit, and his decision was therefore entitled to deference.

159     In her reasons, Feldman J.A. began by noting that the role of the sentencing judge is to impose a sentence that is fit, and that while it is appropriate to consider a starting point or range of sentence for a particular offence committed in particular circumstances, a trial judge is entitled to deviate from that starting point or range after considering the particular facts of the case including the circumstances of the victim, the particulars of the crime, and the history and circumstances of the offender (see paras. 12-14). She continued, at para. 14:

 

                    Where there are facts or circumstances that distinguish the situation significantly from other cases where sentences were imposed within the range, whether because of the victim, the nature of the crime itself, or the history or current circumstances of the offender, the trial judge is entitled to impose a sentence that adequately reflects the significance of those facts. In R. v. Cheddesingh (2004), 182 C.C.C. (3d) 37 at 38, the Supreme Court repeated: "As is always the case with sentencing, the inquiry must proceed on a case-by-case basis."

160     I mention this case in particular because of what Feldman J.A. said for the Court about the sub-category of "aggravated manslaughter." She stated, at paras. 33-34:

 

33.         The first question is whether it is appropriate to label a subcategory of manslaughter as "aggravated manslaughter" for the purpose of sentencing. In my view, it is not useful to attach a label to a subcategory of the offence, then to try to pigeonhole the facts of any case into the label. Adding a descriptive label to a set of facts within the defined offence adds a level of complexity to the sentencing exercise that is both unnecessary and potentially diverting for the court and could lead to errors. Nor do I read this court's decision in [REDACTED] as adopting that approach. In that case, after considering all of the aggravating factors, the court concluded: In light of these aggravating factors, we agree that the proper range for this offence and this offender is 8 to 12 years imprisonment.

34.         The exercise in each case is to impose a sentence that fits the facts and circumstances of the particular case and the particular offender. Part of that exercise is to impose similar sentences for similar offences and offenders. However, I would reject the concept of naming subcategories of manslaughter for the purpose of comparing cases and imposing similar sentences, and instead compare the circumstances of each situation on a case-by-case basis.

161     The fact is that even life imprisonment has been imposed in particularly serious cases. In Cheddesingh, the Supreme Court of Canada upheld such a sentence. The Court noted that, like any maximum penalty, it would be imposed rarely, and would only be appropriate if the offence is of sufficient gravity and the offender displays sufficient blameworthiness. The court emphasized that concepts such as terms such as "stark horror", "worst offence" and "worst offender" in imposing a life sentence add nothing to the analysis and should be avoided. As is always the case with sentencing, the inquiry must proceed on a case-by-case basis.

162     Sentences of less than life imprisonment, but more than 12 years have also been imposed in manslaughter cases, including in Atherley.

163     In this case, the offence is of extreme gravity, and the offender displays a high level of blameworthiness. I do not suggest that a life sentence should be imposed on him, but I do think that in all of the circumstances, a sentence well in excess of 12 years is necessary to adequately denounce [REDACTED] conduct, to deter him and others, to separate him from society, and to promote a sense of responsibility in him for the harm done to victims and an acknowledgment of it. In my view a sentence of 18 years is the shortest sentence that can accomplish those ends.

DISPOSITION

164     I find that [REDACTED] meets the prerequisites for both a dangerous offender and a long-term offender, and I find him to be a long-term offender. As a result, I sentence him to a period of imprisonment, and order him to be subject to long-term supervision for a period of ten years.

165     The period of imprisonment will be as follows:

 

                    Count 1 - manslaughter: 18 years, less 8 years to reflect approximately 4 years of pre-sentence custody, or 10 years

 

                    Count 2 - unlawful confinement: 10 years concurrent

 

                    Count 3 - robbery: 18 years imprisonment concurrent, less 8 years to reflect approximately 4 years of pre-sentence custody, or 10 years

 

                    Count 4 - use of an imitation firearm: 10 years concurrent

166     To be clear, the total sentence imposed on the offender after taking pre-sentence custody into consideration is ten years.

167     I strongly urge the authorities to give serious consideration to the recommendations made by [REDACTED] and [REDACTED] concerning institutional treatment of the offender and the conditions for his ultimate release into the community.

Judge: [REDACTED].

* * * * *

Criminal Record of [REDACTED] - Appendix A