



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Fulton, 2012
    ONCA 781

DATE: 20121116

DOCKET: C54633

Juriansz, Watt and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Fulton

Appellant

Catriona Verner, for the appellant

Michelle Campbell, for the respondent

Heard: May 28, 2012

On appeal from the sentence imposed on June 8, 2011 by
    Justice M.L.D. Roberts of the Ontario Court of Justice.

ENDORSEMENT

[1]

This is an appeal against sentence. The appellant pleaded guilty to two
    counts of uttering threats and one count each of aggravated assault, possession
    of a weapon for a dangerous purpose, and mischief. The sentencing judge designated
    the appellant a long-term offender (LTO). She sentenced the appellant to nine
    years in custody for the predicate offences and imposed a ten-year supervision
    order.

[2]

The appellant disputes the LTO designation, the length of the term of
    supervision, and the sentence for the predicate offences. We would allow the
    appeal against the LTO designation.

[3]

On January 28, 2008, the appellant stabbed the complainant, his former
    girlfriend, who had recently broken up with him. The appellant entered her
    apartment surreptitiously to retrieve belongings and, after she confronted him
    and started to hit him with her fists, he stabbed her repeatedly with a scuba
    knife that he had strapped to his calf.  He stabbed her three times in the
    chest and twice in the back. The complainants wounds were life threatening and
    she suffered a collapsed lung. After the complainant escaped, the appellant
    barricaded himself in her apartment and engaged in a 12-hour standoff with
    police. He destroyed the complainant's belongings, threatened to set the
    building on fire, threatened to stab a police officer, and suggested to his
    friend over the phone that he might kill himself. When the Emergency Task Force
    entered the apartment, he was found to be groggy and was armed with several
    knives and a baseball bat. At the time, the appellant was dependent on, and had
    used, opioids.

[4]

The appellant has a criminal record. He was convicted in 1999 of
    unrelated property offences. In 2002, the appellant took his former
    girlfriends car without her permission, which led to a police chase. He was
    convicted of a series of offences arising from the incident, including
    conspiracy to commit an indictable offence, taking a motor vehicle without
    consent, fleeing while being pursued by police, and theft over $5,000.

[5]

The most significant offences for the purpose of this appeal occurred in
    2003. In January 2003, the appellants former girlfriend had broken up with him
    and she refused to return his belongings. The appellant purposefully damaged
    her vehicle, broke a window in her residence, and threw a flaming rag into the
    house while his former girlfriend and her mother were in the house at the
    window watching him. At the time, the appellant was on probation and subject to
    a condition that he not contact the former girlfriend. The appellant was
    convicted of arson with disregard for human life, uttering threats, mischief,
    and failure to comply with his probation order.

[6]

In her detailed reasons, the sentencing judge found that the appellant
    satisfied the criteria for a dangerous offender (DO) under s. 753(1)(a)(ii)
    of the
Criminal Code
, but went on to find there was a reasonable
    possibility of eventual control of the risk he posed to the community.
    Therefore, she designated him an LTO.

[7]

The appellant submits that there are two errors in the sentencing
    judges analysis. First, she erred in finding that the appellant met the DO
    criteria. Second, she failed to consider whether, in addition to meeting the DO
    criteria, the appellant also met the requirement under the LTO provisions that
    the appellant posed a substantial risk to reoffend. We agree.

[8]

In finding the appellant satisfied the DO criteria, the sentencing judge
    relied on two aggressive incidents. She considered the predicate offences,
    including the aggravated assault, and the appellants behaviour with respect to
    the January 2003 offences.

[9]

These two incidents satisfied the sentencing judge beyond a reasonable
    doubt that the appellant had exhibited a pattern of behaviour. She described
    the pattern carefully. In each case there was a domestic relationship in which
    there was a breakup in progress. Both cases involved a desire on the part of
    the appellant to assert his dominance or his will. Both cases also demonstrated
    a complete disregard for the safety of others and the potential for injury that
    may have occurred. In each case the appellant returned to get something that he
    perceived was his right to do. After both incidents, the appellant threatened
    to harm himself.

[10]

Upon
    making a finding that the appellant had exhibited a pattern of behaviour, the
    sentencing judge stated:

[T]he finding is that the defendant does meet the dangerous
    offender criteria in section 753(1). I must now look at the considerations with
    respect to the long-term offender provisions before I declare the defendant a
    Dangerous Offender.

[11]

However,
    finding that the appellant had exhibited a pattern of behaviour was not enough.
    Under s. 753(1)(a)(ii) of the
Criminal Code
, to find the appellant met
    the DO criteria, the court had to be satisfied that the evidence established a
    pattern of persistent aggressive behaviour by the offender showing a
    substantial degree of indifference respecting reasonably foreseeable
    consequences to other persons. The sentencing judge did not make a finding that
    the pattern of behaviour that she identified was persistent.

[12]

The
    Crown submitted that the sentencing judges analysis supports a finding of
    persistence. Counsel for the Crown argued that the reasons of the sentencing
    judge, read as a whole, make apparent that she had in mind a persistent
    pattern in discussing the existence of a pattern. We do not agree.

[13]

In
    her detailed description of the appellants behaviour in the 2003 and 2008
    offences, the sentencing judge stressed the features that led her to conclude
    there was a pattern. There is nothing to indicate that she separately
    considered whether that pattern was persistent. The circumstances of this case
    required an express discussion of that question.

[14]

In
    this case, the two sets of offences that formed the pattern identified by the
    sentencing judge were separated by some five years. The appellant had not
    exhibited violent behaviour otherwise in his history. The complainant in the
    predicate offences indicated that the appellant had never been violent with her
    before, and the appellant had not been violent while institutionalized. It is
    worth noting that the expert called by the Crown, though weakly suggesting one
    could say there was a pattern in the appellants behaviour, did not address
    whether that pattern was persistent.

[15]

Likewise,
    perhaps because the sentencing judge focused her analysis on whether the
    appellant met the DO criteria, she made no finding that there was a substantial
    risk that he would reoffend. The Crown expert did offer the opinion that there
    was a substantial risk that the appellant would reoffend. That opinion is
    contained in a lengthy passage of his testimony quoted by the sentencing judge.
    However, the judge did not state she was adopting that opinion. We accept the
    appellants argument that the sentencing judge failed to conduct a separate
    analysis of this issue.

[16]

Accordingly,
    we would allow the appeal with respect to the LTO designation.

[17]

We
    do not accept the appellants submission that the nine-year term of
    imprisonment imposed was unfit. The nine-year sentence is within the range for the
    type of aggravated assault that occurred in this case. The appellant had been
    convicted of offences involving violence in the past. The aggravated assault
    took place in a domestic context. He had invaded the complainants home and
    stabbed her repeatedly there. The complainant suffered life-threatening
    injuries.

[18]

We
    would allow the appeal, set aside the LTO designation, and affirm the sentence
    of nine years imposed by the sentencing judge.

R.G. Juriansz J.A.

David Watt J.A.

Alexandra Hoy J.A.


