COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Szostak, 2014 ONCA 15

DATE: 20140110

DOCKET: C55269

C55308

Rosenberg, Rouleau and Strathy JJ.A.

C55269

BETWEEN

Her Majesty the Queen

Appellant

and

Philip Lee Szostak

Respondent

C55308

BETWEEN

Her Majesty the Queen

Respondent

and

Philip Lee Szostak

Appellant

Andreea Baiasu, for the appellant (respondent in C55308)

Michael Crystal, for the respondent (appellant in
    C55308)

Heard: October 10, 2013

On appeal from the conviction entered on December 22,
    2010 and the sentence imposed on February 29, 2012 by Justice Thomas R. Lofchik
    of the Superior Court of Justice, sitting without a jury, with reasons for
    sentence reported at 2012 ONSC 1376.

Rosenberg J.A.:

[1]

Philip Szostak appeals from his convictions by Lofchik J. for assault
    causing bodily harm, aggravated assault, assault with a weapon, possession of a
    weapon for a purpose dangerous to the public, uttering threats, obstruction of
    justice and seven counts of breach of probation. The Crown appeals from the
    decision of Lofchik J. refusing to declare Mr. Szostak a dangerous offender and
    imposing a conventional sentence of six years imprisonment. At the hearing of
    the appeal, the court dismissed the conviction appeal but reserved on the Crown
    sentence appeal. These reasons explain why the court dismissed the conviction
    appeal and why I would allow the Crown sentence appeal.

THE CONVICTION APPEAL

A.

THE FACTS

[2]

For convenience, I will refer to Mr. Szostak as the appellant
    throughout, even on the Crown appeal. The convictions arise out of three sets
    of events that all in one way or another involve Eric Englert, the appellants
    one-time friend. I will usually refer to Mr. Englert as the complainant.

(1)

August 2008

[3]

On August 10, 2008, the appellant picked up the complainant at his
    sisters house. The two of them went drinking and consumed a substantial amount
    of alcohol. According to the complainant, the appellant was trying to get him
    to give the appellant some drugs the complainant was holding for a third
    person. When the complainant refused, the appellant became angry. They left the
    bar and returned to the complainants sisters home where the appellant
    demanded that the complainant go in and get the drugs. However, the house was
    locked and the complainant was unable to get inside. The complainant asked if
    he could stay at the appellants home. The appellant said he could not. He then
    drove to a nearby cemetery, dragged the complainant out of the car and beat
    him. The appellant left him in the cemetery. The complainant walked to his
    sisters home.  He was missing his hat and one of his shoes. The complainants
    sister called an ambulance. The complainant told his brother-in-law that he was
    beaten by three men whom he described. He later provided the same information
    to the police. He suggested that his ex-girlfriend was angry with him and may
    have had a motive to have him harmed. The complainant testified that he lied to
    the police to protect the appellant, who was on parole, and because he was
    afraid of another physical confrontation with the appellant.

[4]

About 2:00 a.m. on August 11, 2008, the complainants sister received a
    call from the appellant asking how the complainant was. He claimed that he had
    dropped the complainant off near the cemetery. He said he had gone back to the
    cemetery and found the complainants hat and shoe, which he wanted to return to
    him. Some time later the appellant made a comment to the complainants brother
    that could be construed as an admission that he assaulted the complainant at
    the cemetery.

[5]

The appellant testified. He denied asking the complainant for drugs the
    complainant was holding for another person. He said that when he drove the
    complainant to his sisters house after their night of drinking, the
    complainant could not get into the house. He then asked the appellant to drive
    him to his brothers house. On the way, the complainant changed his mind and
    said he should probably go to his sisters house. The appellant became annoyed
    and simply dropped him off near the cemetery, which was not far from the
    sisters house. The appellant denied assaulting the complainant. The next day
    he received a call from the complainants brother who told him that the
    complainant had been jumped and asked him to visit the complainant. As he was
    driving over he noticed the complainants hat by the side of the road. When he
    retrieved the hat he also noticed the complainants shoe.

(2)

August 2009

[6]

In the summer of 2009, the appellant had recently been released from
    jail on an unrelated matter. He claimed that the complainant owed him money
    because he had taken two bikes that the appellants grandmother had been
    keeping for him. The complainant claimed that he was entitled to the bikes
    because the appellant had his stereo system. On the evening of August 14, 2009,
    the complainant and a friend went to the beer store. The complainant had a
    kitchen knife with him for protection because the appellant was looking for
    him. By coincidence, the appellant came to the same beer store. When he entered
    the store, he saw the complainant and immediately left and waited outside. When
    the complainant left the store, the appellant approached him, put his left hand
    on the right side of his face said, Tough guy, eh? and using a small pocket
    knife, slashed the left side of the complainants face. The appellant then
    left.

[7]

The complainant claimed that he never had a chance to use his knife. The
    complainant was bleeding heavily. He realized the police would be coming so he
    put his knife around the side of the beer store. At the time he was subject to
    a life-time weapons prohibition. The complainant returned to a grassy area near
    the store where a woman (Jill Gorle) helped him until the police and ambulance
    came. Ms. Gorle, who saw most of the encounter between the appellant and
    complainant, gave an account that was generally consistent with the
    complainants account, although she did not actually see the appellant with a
    knife.

[8]

The appellant testified that he waited outside the store intending to
    ask the complainant for some money for the bikes. He denied having any weapons.
    When the complainant came out of the store, there was a brief verbal exchange
    and then the complainant pulled a large butcher knife out of his pants. The
    appellant jumped on the complainant and wrapped his left arm around the
    complainants neck. He used his right hand to grab the complainants wrist that
    was holding the knife. When the complainant took a step forward, trying to
    escape, the knife cut the complainants face. The appellant jumped into his
    vehicle and left. He was not supposed to be at the beer store and did not want
    to get caught there.

[9]

According to the complainant, about two weeks later the appellant called
    him several times threatening that if he showed up at trial he would assault
    him and come after his family. These calls were the basis of the obstruction of
    justice and threatening charges. The appellant was on several probation orders
    in 2008 and 2009; hence the breach of probation charges.

B.

ANALYSIS

(1)

The August 2008 events

[10]

In
    his factum, counsel for the appellant submits that the trial judge failed to
    properly apply the approach to credibility in
R. v. W. (D.),
[1991] 1
    S.C.R. 742, and did not provide adequate reasons. In his oral submissions,
    counsel focused on the adequacy of the reasons and in particular the failure to
    deal with exculpatory evidence. The exculpatory evidence was the complainants
    admission that he originally described three other men as having assaulted him.
    The complainants brother-in-law later saw some men who met the descriptions
    provided by the complainant.

[11]

I
    would not give effect to these grounds of appeal. The trial judge properly
    dealt with credibility. He explained why he rejected the appellants evidence
    and why that evidence did not raise a reasonable doubt. He recognized that it
    was dangerous to act on the complainants evidence alone given the lies he had
    told and his extensive criminal record. The trial judge found that the
    complainants evidence was confirmed by the evidence of the complainants
    sister and brother-in-law and the complainants brother. A particularly cogent
    piece of evidence was the appellants 2:00 a.m. telephone call to the
    complainants sister, a call revealing knowledge of the attack which only the
    perpetrator would have.

[12]

I
    am also satisfied that the trial judges reasons were adequate. The exculpatory
    evidence came from Englerts brother-in-law, David Skewes. He was working in
    the garage when the complainant rang the doorbell of his house. Skewes let the
    complainant in and saw that he had been drinking, and had been badly beaten.
    Skewes tried to find out what happened, but the complainant was reluctant.
    Skewes suggested that they call the appellant and then go look for the men. The
    complainant did not want to call the appellant, said that Skewes did not
    understand, and began to cry. He eventually said that he had been beaten by
    three men and then changed it to five men. He identified one of the people as
    Adam and also said that his own brother was part of the group. The
    complainant described one of the people who attacked him as having dark skin
    and a Fu Manchu moustache. Skewes then drove around the neighbourhood looking
    for somebody. When asked if he found anyone who matched the description, he
    said:

Well, I kind of, I think I kind of made up in my own, my own
    mind at that point. I just, yeah, somebody with that description, sure.

[13]

The
    following day, he drove around the neighbourhood with the complainant and saw
    the same man. The complainant said that was the man. Skewes tried to get the
    mans name by asking in the neighbourhood and was told the mans name. Skewes
    made a few more inquiries but concluded nothing was really happening, that it
    was kind of a made up name and everything. The very brief cross-examination of
    Skewes ended with the following:

Q.      So the story appeared to be changing every time he
    spoke.

A.      Right.

Q.      Okay. And the only thing that led Eric to looking at
    this Middle Eastern individual in the neighbouring survey was your good
    conscience efforts at investigation to try to figure this out?

A.      He was just trying to steer me and Stacey away. Thats
    all.

[14]

The
    complainants brother Terry testified that he was not involved in assaulting
    him. He also testified that later the appellant admitted that he beat up the
    complainant in the cemetery.

[15]

In
    my view, the only exculpatory effect of the evidence from David Skewes was to
    confirm that the complainant gave a prior statement inconsistent with his trial
    evidence. It did not establish as a fact that three or five men, including
    Terry Englert, actually assaulted the complainant. For that purpose it was
    simply inadmissible hearsay. The trial judge used the evidence properly as a
    prior inconsistent statement that affected Englerts credibility and
    reliability.

(2)

The August 2009 events

[16]

On
    appeal from the convictions arising out of the events of 2009, counsel focused
    on the trial judges use of opinion evidence from Detective Giuliani, a
    forensic services investigator. At the beginning of Detective Giulianis
    evidence, Crown counsel sought to qualify him as an expert in fingerprints.
    Defence counsel agreed that the officer was qualified. Detective Giuliani
    introduced some photographs of the scene and explained where the kitchen knife
    had been found at the side of the beer store. He then went on to testify that
    he had examined the kitchen knife for fingerprints and found no prints. Without
    objection he also testified that while using various light sources to check for
    prints, he had looked for other fluids, including blood. He testified that he [d]idnt
    see anything that appeared that there was any blood on the knife. He continued
    then to testify only about fingerprints and when they could be left on various
    surfaces. However, the last question asked the officer if there was any
    difference in terms of blood versus fingerprints in terms of wiping away the
    evidence. The officer replied that [b]lood is very difficult to just wipe
    away.  Its not something that could be easily or quickly done. Defence
    counsel in cross-examination immediately focused on the issue of blood on the
    knife. She questioned the officer in considerable detail as to the tests he had
    performed to see if there was blood on the knife. He explained that he had used
    various light sources which were all negative for blood. The cross-examination
    concluded with this exchange:

Q.      If a bloody hand that had been clutched to a face and
    blood is seeping through the fingers, and that bloody hand then reaches and
    grabs a handle of a knife, pulls it out of a pocket and belt and discards it,
    would you likely be able to find traces of blood on that knife, having gone
    through that process?

A.      Id expect to see some stains on there, yes.

Q.      Unless it was wiped very clean, correct?

A.      Yes.

[17]

In
    his reasons, the trial judge briefly referred to Detective Giulianis evidence:

Detective Giuliani found no visible blood on the knife and
    tests for trace evidence of blood were negative. If the knife had caused the
    injury that bled profusely, one would expect to find blood on it. It is
    unlikely that the knife could have been meticulously cleaned of blood in the
    short time that [the complainant] had to dispose of it. Detective Giuliani
    testified that it would be difficult to remove all traces of blood from the
    knife.

[18]

The
    appellant submits that the trial judge erred in admitting and relying upon the
    opinion of Detective Giuliani concerning blood since the officer was only
    qualified to testify about fingerprints. He also submits that the trial judge
    misapprehended the officers evidence as to the nature of the tests he
    performed. Finally, he submits that the trial judge more generally erred in his
    approach to the evidence about how the attack occurred.

[19]

I
    would not give effect to these grounds of appeal. As to the expert evidence, it
    is apparent that the decision not to object to the officers evidence about
    blood was tactical. As the final exchange with the officer shows, defence
    counsel sought to use the absence of blood on the knife as evidence undermining
    the credibility of the complainant. We have not been provided with any evidence
    that shows Detective Giuliani was not qualified to give the opinion that he did
    or that anyone was misled by his evidence.

[20]

I
    am also satisfied that the trial judge did not misapprehend Detective
    Giulianis evidence. On appeal, counsel argued that the trial judge
    misapprehended the evidence because he referred to tests for trace evidence.
    Counsel submits that this is not an accurate reflection of the officers
    evidence and that he only did tests with various light sources. In my view, the
    trial judge accurately summarized the evidence. In fact, the trial judges
    reasons accurately tracked the officers answers in cross-examination:

Q.      All right. Did you use a multi-step process on this
    particular knife?

A.      I used visual with various light sources and once that
    was negative I stopped the test.

Q.      Okay.
So youve got no trace of blood on the handle
    of the knife?

A.
Thats correct.
[Emphasis added.]

[21]

I
    am also satisfied that the trial judge did not misapprehend the evidence,
    including the testimony of the witnesses, as to how that complainant was cut by
    the knife. It was open to the trial judge to find that the manner in which the
    injury was inflicted was inconsistent with the appellants testimony,
    especially in light of the independent evidence from Ms. Gorle.

[22]

Counsel
    for the appellant conceded that if the convictions relating to the attack on
    the complainant stood there was no basis for interfering with the other
    convictions for obstructing justice, threatening and breach of probation.
    Accordingly, the appeal from conviction is dismissed.

THE CROWN SENTENCE APPEAL

[23]

The
    appeal by the Crown from sentence alleges that the trial judge erred in failing
    to find the appellant to be a dangerous offender and to impose sentence
    accordingly. On appeal the Crown submits that the appeal should be allowed, the
    9-year sentence imposed by the trial judge set aside, the appellant found to be
    a dangerous offender and sentenced to 5 years imprisonment to be followed by a
    long-term supervision order.

A.      THE FACTS

[24]

Since
    the Crown appeal is limited to questions of law alone pursuant to s. 759(2) of
    the
Criminal Code
, only a brief review of the facts is necessary to
    understand the issue raised by this appeal. The facts of the predicate offences
    of assault causing bodily harm and aggravated assault are set out above. The
    Crown also relies upon the appellants history of violence and other crimes.

[25]

The
    appellants behavioural problems began when he was only seven years old. He had
    episodes of uncontrolled anger and was diagnosed with Attention Deficit Disorder
    and Oppositional Defiance Disorder. He did not do well in school and changed
    schools several times. He was expelled from high school in 2000 for making
    several bomb threats. He has worked in construction and prior to his arrest on
    the predicate offences was operating a dry-wall/home improvement business.

[26]

The
    appellant was convicted of robbery as a result of an incident in 2000 when he
    and an accomplice punched a boy and stole his bicycle. The appellant would have
    been approximately 17 years of age at the time. He was involved in two much
    more serious offences in 2005 and 2006, which the Crown relied upon to prove
    the pattern of behaviour that would bring the appellant within the definition
    of a dangerous offender.

[27]

In
    July 2005, the appellant was waiting in line for the washroom in a bar. Another
    customer objected to the appellants behaviour in trying to get ahead in the
    line. After a short shoving match, the appellant hit the customer over the head
    with a beer bottle, cutting the mans head and right cheek bone. At the time of
    this offence, the appellant was on bail for a drug offence. The appellant
    pleaded guilty to assault with a weapon and breach of recognizance and received
    one day in jail in addition to 146 days of pre-sentence custody and two years
    probation.

[28]

While
    on probation, the appellant became involved in an altercation on the evening of
    May 30, 2006. The appellant, who was described as being drunk and high on
    drugs, became involved in a fight with five other individuals. Another person,
    who was not one of the five individuals, left the bar around this time. The
    appellant came up to him and slashed him across the neck with a pair of
    scissors. The victim sustained a three inch laceration to his neck that
    narrowly missed the carotid. The appellant pleaded guilty to aggravated assault
    and breach of probation. He was sentenced to two years imprisonment and three
    years probation. While serving this penitentiary sentence, the appellant was
    involved in fights and was found in possession of contraband on several
    occasions. His parole was revoked three times.

[29]

On
    June 6, 2009, just a few months before the second incident involving the
    complainant, the appellant pleaded guilty to threatening death and being
    unlawfully in a dwelling house. He had entered the home of his employer and
    threatened him over some money that he believed he was owed for some renovation
    work. The appellant left without harming anyone or taking anything.

[30]

A
    psychologist, Dr. Mamak, and a psychiatrist, Dr. Chaimowitz, testified at the
    dangerous offender hearing. Various tests showed the appellant to have an
    anti-social personality disorder. He was not, however, a psychopath. He was at
    a medium to high risk to re-offend within one year of release. He lacked
    insight into his actions and was given to impulsive behaviour. He did not
    suffer from a major mental disorder and was willing to accept treatment. Dr.
    Chaimowitz concluded as follows:

Absent intervention he runs the risk of causing harm to others,
    posing a threat to their life, safety and physical as well as mental wellbeing.
    That likelihood will be a function of his ability to restrain his behaviour and
    avoid drugs and alcohol.

Mr. Szostak has now attacked two people with sharp instruments,
    namely a knife and scissors. He also struck an individual with a beer bottle.
    There is thus a suggestion that there may very well be a pattern of repetitive
    behaviour based on these acts.

Mr. Szostak has expressed remorse albeit superficial and has
    been able to reflect on his actions. He is quite clearly able to place his
    behaviours in the area of criminality. He is also smart enough to know that not
    expressing remorse would not be a wise thing. Nonetheless, I do not believe
    that there is sufficient evidence to suggest that any indifference he has would
    be substantial at this time.

The absence of prior treatment or attempts to control him in
    the community would suggest that one cannot say assertively that there is no
    likelihood of eventual control in the community. Should he receive
    psychological attention including anger management, substance abuse treatment,
    psychological oversight and monitoring, it is reasonable to expect that there may
    be an opportunity for substantial control of this man in the community.

[31]

Both
    experts were of the opinion that the appellant met the criteria for a dangerous
    offender under both s. 753(1)(
a
)(i) and (ii). They agreed, however,
    that with treatment there was a possibility that the risk posed by the
    appellant could be managed in the community. They noted that the appellant had
    not had the benefit of any treatment, other than anger management, and that
    programs offered in the federal system would be more effective. There was a
    reasonable expectation that a lesser measure than indeterminate detention would
    adequately protect the public, namely long-term supervision.

THE TRIAL JUDGES REASONS

[32]

The
    trial judge provided lengthy written reasons for concluding that the appellant
    was not a dangerous offender. He noted that the convictions for assault causing
    bodily harm and aggravated assault were serious personal injury offences within
    the meaning of s. 752 of the
Criminal Code
and that the issue to be
    determined was whether these two predicate offences were part of a pattern of
    offending as required by s. 753(1)(
a
)(i) or (ii). After summarizing
    the elements of proof required under these subsections, the trial judge held
    that the Crown had failed to establish the pattern required. As he said at
    paras. 64  70:

In this case I am not satisfied that the pattern of behaviour
    required by the section is present. The four offences relied upon by the Crown
    took place over a period of four years. While all of the offences involved
    violent activity on the part of the offender against others, the circumstances
    are sufficiently different that it cannot be said that they form a pattern.

Two of the events, the beer bottle incident in 2005 and the
    stabbing at the beach in 2006 involved strangers in circumstances where there
    was a potential threat of violence to the accused (the washroom lineup
    incident), or where there had been violence inflicted upon the accused (the
    beating by five men at the beach albeit that the stabbing victim was not
    involved).

All but one incident, (the beer store incident in 2009)
    occurred when Mr. Szostak was under the influence of alcohol or drugs.

The two incidents involving Eric Englert arose out of disputes
    connected to the past dealings between the offender and the victim.

In none of the cases did the offender pursue the victim for the
    purpose of inflicting violence on him, as all the incidents can be described as
    "spontaneous occurrences" and thus it cannot be said that they were
    serial offences as is the case in many dangerous offender applications.

None of the injuries inflicted on the victims were life
    threatening or intended to be so. The injuries in all cases were inflicted in a
    different manner.

I find that the conduct of Mr. Szostak in connection with the
    offences relied upon by the Crown does not demonstrate the relatively high
    level of intractability required to find that the behaviour constitutes a
    pattern of conduct contemplated by s.753(1)(a)(i) and (ii).

[33]

The
    trial judge went on to refer to
R. v. Neve
, 1999 ABCA 206, 137 C.C.C. (3d) 97,
and
R. v. Lyons
,
    [1987] 2 S.C.R. 309, which described the dangerous offender legislation as
    targeted at a very small group of recalcitrant offenders who could be expected
    to present an unacceptable risk to public safety. He interpreted
Lyons
at p. 338 as requiring that the pattern of conduct must be substantially or
    pathologically intractable. The trial judge concluded, at paras. 75 and 76 of
    his reasons, with the following:

There is no doubt that Mr. Szostak has a history of offending
    the law and that some of his offences involved the use of violence. However,
    not all violent offenders are Dangerous Offenders within the meaning of the
Criminal Code
. I cannot say that Mr. Szostak will never
    re-offend. That risk exists - and it is a real risk. Indeed, it would naïve to
    think otherwise. However, the question is not whether there is a possibility or
    even a probability of Mr. Szostak re-offending in the future. While this
    consideration certainly goes on the scale, the central question which must be
    addressed at this stage is whether given his past record and the various
    factors discussed above, he falls within the intended "small group of
    dangerous offenders" in Canada.

Phi[l]ip Szostak is a criminal, but the totality of the
    circumstances does not warrant a Dangerous Offender designation at this stage
    in his life.

[34]

The
    trial judge having found that the appellant was not a dangerous offender went
    on to impose a conventional sentence of six years imprisonment after giving the
    appellant credit of 3 years for pre-sentence custody.

ANALYSIS

(1)

The Legislative Scheme

[35]

As
    pointed out in
Lyons
, dangerous offender legislation has existed in
    Canada in one form or another since 1947. The original legislation identified a
    category of habitual criminals that were to be kept in preventive detention.
    The particular concern posed by sexual offenders led to identification of a
    category of criminal sexual psychopaths that were also to be subject to
    preventive detention. The modern legislation, which relies upon a finding that
    the person is a dangerous offender, is the result of recommendations in the
Report
    of the Canadian Committee on Corrections
(Ottawa: Canadian Committee on
    Corrections, 1969) (the Ouimet Report), and was enacted in 1977. It was the
    1977 legislation that was examined in
Lyons
. The dangerous offender
    legislation underwent further revisions in August 1997 and July 2008. The
    appellant committed the two predicate offences in this case after the 2008
    amendments came into force and thus the application before the trial judge in
    this case was governed by the 2008 provisions now found in Part XXIV of the
Criminal
    Code
.

[36]

To
    understand the issues in this appeal, it is necessary to briefly consider the
    1977 and 1997 legislative schemes. As I will show, there has been an important
    shift in the way in which the legislation works. The trial judges discretion
    has narrowed in one sense, the judge no longer having discretion not to find a
    person a dangerous offender who fits the definition. But the discretion has
    been broadened in that the judge has wider sentencing options for a person who
    does come within the dangerous offender definition. In my view, these changes
    have an impact on the interpretation of the dangerous offender definition. In
    particular, it is my view that the possibility of successful treatment is of
    limited application in determining whether the person is a dangerous offender. The
    possibility of successful treatment is significant in choosing the appropriate
    disposition.

[37]

Before
    briefly looking at the legislative history, I point out several important
    elements of the current definition of dangerous offender in s. 753(1)(
a
)
    that were relied upon by the Crown in this case. I have attached the current
    version of the entire s. 753 in the Appendix. The applicable part of the
    definition in this case is as follows:

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

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

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

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

Thus, the Crown must prove:

·

The predicate offence is a serious personal injury offence as
    listed in s. 752;

·

The offender constitutes a threat to the life, safety or physical
    or mental well-being of other persons because of:

·

(1) A pattern of repetitive behaviour showing (2) failure to
    restrain the behaviour, and (3) likelihood of causing death or injury or
    inflicting severe psychological damage; or

·

(1) A pattern of persistent aggressive behaviour showing (2) a
    substantial degree of indifference.

The 1977 legislation

[38]

The
    leading case interpreting the 1977 scheme is
Lyons
. In
Lyons
,
    the Supreme Court upheld the 1977 scheme in the face of a challenge under ss.
    7, 9, 11 and 12 of the
Canadian Charter of Rights and Freedoms.
The
    definition of dangerous offender was found in former s. 688 of the
Criminal
    Code
. The definition in s. 688(
a
) is very similar to the present
    s. 753(1)(
a
) with these important differences. First, under the former
    s. 688, if the offender meets the definition, the court
may
find the
    offender to be a dangerous offender and
may
thereupon impose a
    sentence of detention in a penitentiary for an indeterminate period (emphasis
    added). The legislation appeared to give a judge discretion at both the stage
    of finding the person to be a dangerous offender and the penalty phase. As the
Lyons
court said at p. 338: Finally, the court has the discretion not to designate
    the offender as dangerous or to impose an indeterminate sentence, even in
    circumstances where all of these criteria are met.

[39]

Section
    753(1) of the present scheme, adopted in 2008, provides that if the offender
    meets the definition of dangerous offender the court shall find the offender
    to be a dangerous offender. The courts discretion is found in s. 753(4) as to
    the penalty: (
a
) indeterminate detention, (
b
) at least 2
    years imprisonment and a longterm supervision order of up to 10 years, or (
c
)
    a conventional or determinate sentence. The second important distinction is
    that under the 1977 scheme, there was no provision for a long-term supervision
    order as now exists in s. 753(4)(
b
) or making a finding that the
    offender is a long-term offender as provided for in s. 753(5).

[40]

In
    the course of finding that the 1977 scheme was constitutional, the court made
    important observations on the nature of the dangerous offender scheme,
    observations that have been picked up in subsequent cases, notwithstanding the
    significant amendments in 1997 and 2008. For example, at pp. 325 and 338, the
    court introduced the concept of intractability in describing the type of
    offender meant to be caught by the provisions:

In addition to having been convicted of a serious personal
    injury offence, s. 688(
a
) and (
b
) provides that to qualify as
    a dangerous offender, it must also be established that the offender constitutes
    a threat to the life, safety or well-being of others on the basis of evidence
    of the dangerous and intractably persistent or brutal behaviour described in
    subparas. (i) to (iii)

Also explicit in one form or another in each subparagraph of s.
    687 is the requirement that the court must be satisfied that the pattern of
    conduct is substantially or pathologically intractable.

[41]

The
    court also focused on the principle that the dangerous offender legislation was
    designed to apply to a very small group of offenders, for whom preventive
    detention was necessary. As was said at pp. 339 and 347:

Not only has a diligent attempt been made to carefully define a
    very small group of offenders whose personal characteristics and particular
    circumstances militate strenuously in favour of preventive incarceration, but
    it would be difficult to imagine a better tailored set of criteria that could
    effectively accomplish the purposes sought to be attained.

There can be no doubt that detention
per se
, and
    preventive detention in particular, is not cruel and unusual in the case of
    dangerous offenders, for the group to whom the legislation applies has been
    functionally defined so as to ensure that persons within the group evince the
    very characteristics that render such detention necessary.

Moreover, implicit in my discussion of the s. 12 issue is the
    common sense conclusion that the criteria in Part XXI are anything but arbitrary
    in relation to the objectives sought to be attained; they are clearly designed
    to segregate a small group of highly dangerous criminals posing threats to the
    physical or mental well-being of their victims.

[42]

As
    indicated, the trial judge in this case referred to both intractability and the
    small group of offenders targeted by the legislation.

The 1997 Legislation

[43]

The
    1997 legislation made several important changes to the dangerous offender
    scheme. The new s. 761(1) extended the period before a first parole hearing
    from three years to seven years for a person found to be a dangerous offender.
    By virtue of the new s. 753(4), the imposition of an indeterminate prison term
    was mandatory once a person had been designated a dangerous offender. The court
    no longer had discretion at both the dangerous offender and penalty stages as
    described in
Lyons
. Finally, the legislation added a new category of
    long-term offenders. Thus, the trial judge could exercise the discretion not to
    find the person a dangerous offender, although they met the s. 753 definition,
    and instead find the person to be a long-term offender as defined in s. 753.1. While
    ss. 753 and 753.1 had some common elements, the important distinction was that
    the long-term offender was a person for whom there was a reasonable
    possibility of eventual control of the risk in the community. A person found
    to be a long-term offender was not subject to indeterminate detention in
    prison. Rather, after serving a conventional sentence of at least two years,
    the person would be subject to a community supervision order not to exceed ten
    years.

[44]

The
    leading case on the interpretation of the 1997 legislation is
R. v. Johnson
,
    2003 SCC 46, [2003] 2 S.C.R. 357. Much of the decision turned on the
    application of the new long-term offender provisions but the court made some
    observations on the operation of the scheme generally. Importantly, the court
    held that the proper interpretation of the scheme was, as I have said above, to
    give the offender access to the benefit of the long-term offender designation
    by exercising the discretion not to find the person to be a dangerous offender
    although they met the dangerous offender definition. As the court explained at
    para. 24:

The proposition that a court is under a duty to declare an
    offender dangerous in each circumstance in which the statutory criteria are
    satisfied is in direct conflict with the underlying principle that the sentence
    must be appropriate in the circumstances of the individual case. A rigid rule
    that each offender who satisfies the statutory criteria in s. 753(1) must be
    declared dangerous and sentenced to an indeterminate period of detention
    undermines a sentencing judge's capacity to fashion a sentence that fits the
    individual circumstances of a given case. Thus, rather than suggesting that a
    sentencing judge is under an obligation to find an offender dangerous once the
    statutory criteria are met, the principles and purposes underlying the
Criminal
    Code
's sentencing provisions actually
favour
a sentencing judge's
    discretion whether to declare an offender dangerous who has met the statutory
    criteria in s. 753(1).

[45]

But,
    the availability of the new long-term offender penalty removed intractability
    as a necessary element of the dangerous offender definition. This was because
    under the 1997 scheme a person could be eligible for a long-term offender
    disposition notwithstanding the person met both definitions of dangerous
    offender and long-term offender.

[46]

The
    court made clear in paras. 30-32 that a person who fit the dangerous offender
    definition could nevertheless be found to be a long-term offender. For example,
    at para. 30:

In order for the sentencing sanctions available pursuant to the
    long-term offender provisions to reduce the threat associated with an offender
    who satisfies the dangerous offender criteria to an acceptable level, it must
    be possible for the same offender to satisfy both the dangerous offender
    criteria and the long-term offender criteria.

The court made a similar point at para. 44:

As we have discussed, a sentencing judge should declare the
    offender dangerous and impose an indeterminate period of detention if, and only
    if, an indeterminate sentence is the least restrictive means by which to reduce
    the public threat posed by the offender to an acceptable level.
The
    introduction of the long-term offender provisions expands the range of
    sentencing options available to a sentencing judge who is satisfied that the
    dangerous offender criteria have been met
. Under the current regime, a
    sentencing judge is no longer faced with the stark choice between an
    indeterminate sentence and a determinate sentence. Rather, a sentencing judge
    may consider the additional possibility that a determinate sentence followed by
    a period of supervision in the community might adequately protect the public.
    [Emphasis added.]

[47]

I
    point out in passing this sentence from para. 34 of
Johnson
: No
    sentencing objective is advanced by declaring an offender dangerous and then
    imposing a determinate sentence. This principle has been unequivocally
    abandoned in the 2008 legislation to which this appellant is subject.

[48]

Finally,
    it would appear that this court, in considering the 1997 legislation in
R.
    v. F.E.D.,
2007 ONCA 246, 84 O.R. (3d) 721, at paras. 44-48, also held
    that intractability was not an element of the dangerous offender definition.
    See for example, paras. 45-48:

Further, in the light of
Johnson
, I am not persuaded
    that the cases on which the respondent relies provide sound authority for
    holding that there should be an onus on the Crown in dangerous offender
    applications to prove beyond a reasonable doubt that there is no reasonable
    possibility of eventual control of the risk that an offender presents in the
    community. The respondent relies on the following cases that have held that such
    an onus exists:
R. v. B.R.B.
(2002), 174 B.C.A.C. 243;
R. v.
    A.P.A.
(2003), 184 B.C.A.C. 268;
R. v. Lemaigre
(2004), 189
    C.C.C. (3d) 492 (Sask. C.A.);
R. v. J.J.M.
(2006), 208 C.C.C (3d) 312
    (N.B.C.A);
R. v. D.B.B.
(2004), 62 W.C.B. (2d) 247 (Ont. S.C.J.); and
R.
    v. R.M.
(2005), 68 W.C.B. (2d) 78 (Ont. S.C.J.).

To the extent that these cases articulate a rationale, it
    appears to be rooted in jurisprudence interpreting the dangerous offender
    provisions as requiring the Crown to prove beyond a reasonable doubt that an
    offender's pattern of conduct is substantially or pathologically intractable in
    order to satisfy the dangerous offender criteria and equating that requirement
    with the impugned burden of proof: see e.g.
B.R.B.
at para. 11.

This was the approach taken by British Columbia Court of Appeal
    in
R. v. Johnson
(2001), 159 B.C.A.C. 255. At para. 58, the court
    referred to the following comments made by La Forest J. in
R. v. Lyons
,
    [1987] 2 S.C.R. 309 at para. 43, concerning s. 687 of the
Criminal Code
,
    R.S.C. 1970, c. C-34, Part XXI, a predecessor to the current s. 653:

Also explicit in one form or another in each subparagraph of
    s. 687 is the requirement that the court must be satisfied that the pattern of
    conduct is substantially or pathologically intractable.

At para. 72 of its decision in
Johnson,
    supra
, the British Columbia Court of Appeal interpreted these comments as
    meaning that treatment prospects had to be considered at the designation stage
    and that it would therefore be illogical to require the sentencing judge to
    examine treatment prospects once again as part of a residual discretion not to
    declare an offender dangerous. However, this approach was not adopted by the
    Supreme Court of Canada in its decision in
Johnson
. Accordingly, I am
    not persuaded that I should follow the authorities on which the respondent
    relies.

[49]

In
F.E.D.
, Simmons J.A. also points out that after the
Johnson
case,
    the British Columbia Court of Appeal itself seems to have abandoned the
    intractability requirement as an element of the dangerous offender designation
    in
R. v. Wormell
, 2005 BCCA 328, 198 C.C.C. (3d) 252, leave to appeal
    to S.C.C. refused, [2005] S.C.C.A. No. 371. See also
R. v. Simon
, 2008
    ONCA 578, 176 C.R.R. (2d) 68, and
R. v. Moosomin
, 2008 SKCA 169, 239
    C.C.C. (3d) 362.

[50]

As
    noted above, the trial judge also referred to the decision of the Alberta Court
    of Appeal in
Neve
, an important case interpreting the 1997
    legislation. There is a complication in applying
Neve
because the
    accused in that case was sentenced under the 1977 legislation but her appeal
    was heard after the 1997 amendments came into force. Although Neves predicate
    offences were committed before 1997, the court held that the appeal was
    governed in part by the new, more favourable, legislation by virtue of s. 44(
e
)
    of the
Interpretation Act
, R.S.C. 1985, c. I-21. But, Neve was also
    entitled to the benefit of those parts of the 1977 regime that were more
    favourable to her. The result, according to the
Neve
court, was that
    the court had discretion not to find the person to be a dangerous offender even
    if she met the s. 753 definition and further discretion not to impose an
    indeterminate sentence even if the person was declared to be a dangerous
    offender and to impose instead a conventional sentence.

[51]

In
Neve
, at para. 113, the court discussed the behavioural pattern requirement
    and the restraint element in the s. 753(
a
) (now s. 753(1)(
a
))
    definition:

Because the pattern of past behaviour must be
repetitive
(s. 753(a)(i)) or
persistent
(s. 753(a)(ii)), evidence of one episode of
    violence or aggression will not suffice:
Lyons, supra
. This does not
    mean that it will always be necessary that the offender have a lengthy history
    of violence or aggression. To the contrary. Depending on the facts, a pattern
    sufficient to form the basis for predicting future behaviour which threatens
    others may be found on very few such incidents. [Indeed, under s. 753(a)(iii),
    which is not relevant here, there is no need for a pattern; one brutal attack
    may be sufficient.] Generally, however, in order to meet the requirements of a
    pattern, the fewer the incidents, the more similar they must be:
Langevin,
    supra
. We do not suggest that the offences must be of the same kind, that
    is, for example, a number of robberies.
Similarity, as noted, can be found
    not only in the types of offences but also in the degree of violence or
    aggression threatened or inflicted on the victims
. This explains why the
    requirement for similarity in terms of kinds of offences is not crucial when
    the incidents of serious violence and aggression are more numerous:
R. v.
    Jones (J.F.)
(1993), 63 O.A.C. 317 (C.A.). [Underlining and brackets in
    original; italics added.]

The 2008 Legislation

[52]

In
    my view, any doubt that intractability is not a necessary element to find a
    person to be a dangerous offender has been removed by the 2008 amendments. This
    legislation removes the discretion that existed under the 1997 legislation not
    to find a person to be a dangerous offender even though the person came within
    the definition in s. 753(1). That discretion has been replaced by a highly
    structured discretion in s. 753(4) and (4.1). Those provisions are as follows:

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

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

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

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

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

[53]

Thus,
    the legislation contemplates that a person could be declared a dangerous
    offender because they meet the definition but nevertheless be given a
    disposition including a long-term supervision order or a conventional sentence.
    However, these two options are only available if an indeterminate sentence is
    not required to protect the public from the commission of murder or a serious
    personal injury offence. If a person, to be declared a dangerous offender, had
    to not only meet the statutory definition but display a pattern of conduct that
    was pathologically intractable, that person could, it seems to me, rarely, if
    ever, be eligible for a long-term supervision order or a conventional sentence.

[54]

Further,
    while I agree that the legislation must be interpreted in the spirit of
Lyons
and bearing in mind the sentencing principles and objectives in ss. 718, 718.1
    and 718.2, it is apparent that Parliament intended a broader group of offenders
    be declared dangerous offenders than was envisaged in
Lyons
where the
    court spoke of a very small group of offenders. While the legislation is
    still narrowly targeted to a small group of offenders, that Parliament intended
    to broaden the group of persons to be labelled as dangerous offenders is
    apparent from the legislative reversal of the principle in
Johnson
referred to earlier that no sentencing objective is advanced by declaring an
    offender dangerous and imposing a determinate sentence. I point out that there
    has been no constitutional challenge to the 2008 regime in this case.

[55]

Accordingly,
    it is of no assistance in interpreting the legislation to go beyond the words
    of the definition in s. 753(1) and introduce principles of intractability or
    attempt to predict the number of offenders that Parliament intended to bring
    within the legislative scheme.

Pattern of Repetitive behaviour

[56]

In
R. v. Hogg
, 2011 ONCA 840, this court considered the meaning of the
    phrase a pattern of repetitive behaviour in s. 753(1)(
a
)(i). Despite
    the date of this courts judgment, given the dates of the offences, it would
    seem that the case was decided under the 1997 legislation. The court referred
    with approval to decisions of the British Columbia Court of Appeal and the
    Newfoundland Court of Appeal in
R. v. Dow
, 1999 BCCA 177, 134 C.C.C.
    (3d) 323;
R. v. Pike
, 2010 BCCA 401; and
R. v. Newman
(1994),
    115 Nfld. & P.E.I.R. 197, and concluded as follows at paras. 40 and 43:

To summarize, the pattern of repetitive behaviour that includes
    the predicate offence has to contain enough of the same elements of
    unrestrained dangerous conduct to be able to predict that the offender will
    likely offend in the same way in the future. This will ensure that the level of
    gravity of the behaviour is the same, so that the concern raised by Marshall
    J.A. [in
Newman
]  that the last straw could be a much more minor
    infraction  could not result in a dangerous offender designation. However, the
    offences need not be the same in every detail; that would unduly restrict the
    application of the section.

Although the pattern differed in the detail of how the offences
    were carried out, the predicate and past offenses still represented a pattern
    of repetitive violent behaviour that made it likely that the appellant would
    continue to commit similar acts of violence in order to have sexual
    gratification in the future. I would not give effect to this ground of appeal.

[57]

In
Hogg
, at para. 39, the court also made an important point about the
    number of offences. Referring to
Jones
(also discussed in
Neve
, at para. 113, quoted above)
, the court
    suggested the need for remarkable similarity where only two offences were
    involved but that fewer exact similarities were needed where four offences
    were involved.

Application to this Case

[58]

In
    my view, the trial judge erred in law in finding that the pattern required by
    s. 753(1)(
a
)(i) or (ii) was not made out. For convenience, I repeat
    the definitions of those two paragraphs:

(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

[59]

In
    my view, the trial judge erred in law in finding that the pattern of behaviour
    was not made out because the incidents were spontaneous and did not demonstrate
    intractability. I refer to the following, paras. 68-69, from the trial judges
    reasons:

In none of the cases did the offender pursue the victim for the
    purpose of inflicting violence on him, as all the incidents can be described as
    "spontaneous occurrences" and thus it cannot be said that they were
    serial offences as is the case in many dangerous offender applications.

None of the injuries inflicted on the victims were life
    threatening or intended to be so. The injuries in all cases were inflicted in a
    different manner.

[60]

First,
    the trial judge erred in finding that since the offences were spontaneous
    occurrences they could not be said to be serial offences. There is no
    requirement that the offences be serial offences. Indeed, the fact that the
    various offences were spontaneous strongly tells in favour of a pattern in the
    sense of both paras. (i) and (ii). Looking particularly at para. (i), that the
    appellant was capable of spontaneously acting with such great violence as
    exhibited in the four offences demonstrates a failure to restrain his behaviour
    and a likelihood of causing death or injury to other persons through failure in
    the future to restrain his or her behaviour.

[61]

Second,
    for reasons set out above, the trial judge also erred in requiring that the
    Crown demonstrate a relatively high level of intractability. The trial judge
    referred to this requirement on two occasions, at paras. 70 and 74:

I find that the conduct of Mr. Szostak in connection with the
    offences relied upon by the Crown does not demonstrate the relatively high
    level of intractability required to find that the behaviour constitutes a
    pattern of conduct contemplated by s.753(1)(a)(i) and (ii).

Also explicit in one form or another in each subparagraph of s.
    753 is the requirement that the court must be satisfied that the pattern of
    conduct is substantially or pathologically intractable (see
R. v. Lyons
supra para. 43 [p. 338]). That is why most convicted criminals are not at real
    risk of being designated as dangerous offenders even where they could be said
    to represent a danger to public safety. The legislation is intended to capture
    a small group of highly dangerous criminals rather than snare [a] large group
    of common recidivists (see
R. v. Neve
supra at para. 79).

[62]

As
    I have said, the present legislation does not require intractability as a
    necessary element for a finding of dangerous offender. Intractability will be
    an important consideration for the sentencing judge in deciding what
    disposition to impose under s. 753(4) and (4.1).

[63]

In
    my view, but for these errors in law, the trial judge would have found the
    appellant to be a dangerous offender. The appellants repeated resort to force
    that caused serious injuries shows the necessary pattern under either para. (i)
    or (ii). There were sufficient relevant similarities to demonstrate the pattern
    called for in these paragraphs. As the court said in
Neve
at para.
    113: "Similarity  can be found not only in the types of offences but also
    in the degree of violence or aggression threatened or inflicted on the
    victims." Over a very short period, four years, the appellant seriously
    injured three different people. He resorted to weapons in three of the offences
    and inflicted serious injuries. The trial judges statement, at para. 69 of his
    reasons, that [n]one of the injuries inflicted on the victims were life
    threatening or intended to be so, places too high a burden on the Crown and
    fails to reflect the gravity of the offences. Breaking a beer bottle over a
    person in a bar because of a dispute about standing in line; slashing a person
    with a pair of scissors because the appellant mistakenly thought the victim had
    some time earlier been involved in an altercation with him; beating an
    acquaintance so badly that he needed to go to hospital; and a year later
    slashing that same person with a knife across the face causing permanent injury
    demonstrate the very type of pattern intended to be captured by paras. (i) and
    (ii).

[64]

I
    would set aside the sentence imposed by the trial judge and, pursuant to s.
    759(3)(
a
)(i), find that the offender is a dangerous offender. The
    question of further disposition poses some difficulty. Crown counsel concedes
    that it would not be appropriate to impose a sentence of indeterminate
    detention. It is apparent from the dialogue between counsel and the trial judge
    that the trial judge mistakenly was of the view that a finding of long-term
    offender was not available, even if the appellant was not found to be a
    dangerous offender. The trial judge appears to have been of the view that s.
    753.1 applied only to sexual offences. This is a misreading of the section. The
    long-term offender designation is mandatory for certain sex offenders in the
    circumstances set out in s. 753.1(2), but this does not take away from the
    ability to find a person to be a long-term offender under the general provision
    in s. 753.1(1):

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

[65]

In
    the result, the trial judge gave no consideration to the possibility of a
    long-term supervision disposition and went right to the question of the length
    of a conventional sentence. The findings of fact by the trial judge, based on
    his acceptance of the evidence of Dr. Chaimowitz and Dr. Mamak, strongly
    suggest that the appellant should be subject to a long-term supervision order:

·

The appellant may be classed as a violent offender;

·

If the necessary rehabilitation is not carried out the appellant
    is likely to reoffend in a violent manner;

·

The appellant has spent a good part of his adulthood running into
    difficulties with the law with two prior serious assaults on his record;

·

He can be quite impulsive and aggressive;

·

While not a psychopath, he has a history of anti-social
    behaviours meeting the criteria for Anti-Social Personality Disorder;

·

He has had some substance abuse issues in the past but has no
    active mental disorders such as psychotic disorders, major mood disorders or
    anxiety disorders;

·

The appellant has lived in a prosocial world in the now distant
    past and is able to easily articulate a prosocial view of the world and a
    potential path for him that avoids the criminal activities he has engaged in
    over his last several years;

·

The appellant has not completed treatment programs beside anger
    management courses at the Hamilton-Wentworth Detention Centre during his recent
    incarceration;

·

Risk reduction strategies that would be useful would be to ensure
    that he is absolutely abstinent from drugs and alcohol as they are accelerants
    to violence;

·

If he were to be released into the community it would be
    important that he stay abstinent from drugs and alcohol and should be closely
    monitored in the community to ensure the avoidance of anti-social peers or
    colleagues as well as providing sufficient oversight to reduce the likelihood
    of him acting out in anti-social fashion;

·

Absent intervention the appellant runs the risk of causing harm
    to others and posing a threat to life, safety and physical as well as mental
    well-being;

·

Should the appellant receive psychological attention, including
    anger management, substance abuse treatment, psychological oversight and
    monitoring, it is reasonable to expect that there may be an opportunity for
    substantial control of the risk in the community.

[66]

These
    findings of fact are entitled to deference and while they show that a sentence
    of two years or more is required and that there is a substantial risk that the
    appellant will reoffend, these findings also support the view that there is a
    reasonable possibility of eventual control of the risk in the community.

[67]

On
    the other hand, in my view, this is not a case for a conventional sentence.
    Such a sentence would not adequately protect the public and would therefore be
    inconsistent with s. 753(4.1). The expert and other evidence shows that the
    appellant requires a lengthy period of supervision and monitoring to protect
    the public. A conventional sentence, even one followed by strict parole
    supervision would, on the evidence, not be sufficient. In my view, after taking
    into account the pre-sentence custody, a sentence of an additional five years
    imprisonment followed by a ten-year supervision order would be appropriate.

DISPOSITION

[68]

Accordingly,
    I would allow the Crown appeal, set aside the conventional sentence imposed by
    the trial judge and impose a total sentence of five years imprisonment followed
    by a ten-year supervision order. To arrive at the sentence of five years I
    would impose sentence as follows:

Count 1

[2008 assault causing bodily harm
          on Englert]

3 years imprisonment

Count 3

[2009 aggravated assault on
          Englert]

5 years imprisonment concurrent

Count 5

[2009 possession of weapon for dangerous
          purpose]

2 years imprisonment concurrent

Count 11

[2009 attempt to obstruct
          justice]

2 years imprisonment concurrent

Count 2

[2008 breach of probation]

6 months imprisonment concurrent

Counts 6, 7, 8 and 9

[2009 breaches of probation]

6 months imprisonment concurrent
          on each charge

Counts 12 and 13

[2009 breaches of probation]

1 year imprisonment concurrent on
          each charge

The ancillary orders made by the trial judge will
    stand.

Released: MR January 10, 2014

M.
    Rosenberg J.A.

I
    agree. P. Rouleau J.A.

I
    agree. G.R. Strathy J.A.

APPENDIX  Section 753 of the
Criminal Code

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

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

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

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

(1.1) If the court is satisfied
    that the offence for which the offender is convicted is a primary designated
    offence for which it would be appropriate to impose a sentence of imprisonment
    of two years or more and that the offender was convicted previously at least
    twice of a primary designated offence and was sentenced to at least two years
    of imprisonment for each of those convictions, the conditions in paragraph (1)(
a
)
    or (
b
), as the case may be, are presumed to have been met unless the
    contrary is proved on a balance of probabilities.

(2) An application under
    subsection (1) must be made before sentence is imposed on the offender unless

(
a
)
    before the imposition of sentence, the prosecutor gives notice to the offender
    of a possible intention to make an application under section 752.1 and an
    application under subsection (1) not later than six months after that
    imposition; and

(
b
) at
    the time of the application under subsection (1) that is not later than six
    months after the imposition of sentence, it is shown that relevant evidence
    that was not reasonably available to the prosecutor at the time of the
    imposition of sentence became available in the interim.

(3) Notwithstanding subsection
    752.1(1), an application under that subsection may be made after the imposition
    of sentence or after an offender begins to serve the sentence in a case to
    which paragraphs (2)(
a
) and (
b
) apply.

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

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

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

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

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

(4.2) If the application is made
    after the offender begins to serve the sentence in a case to which paragraphs
    (2)(
a
) and (
b
) apply, a sentence imposed under paragraph (4)(
a
),
    or a sentence imposed and an order made under paragraph 4(
b
), replaces
    the sentence that was imposed for the offence for which the offender was
    convicted.

(5) If the court does not find an
    offender to be a dangerous offender,

(
a
) the
    court may treat the application as an application to find the offender to be a
    long-term offender, section 753.1 applies to the application and the court may
    either find that the offender is a long-term offender or hold another hearing
    for that purpose; or

(
b
) the
    court may impose sentence for the offence for which the offender has been
    convicted.