



WARNING

The President of the panel hearing
this appeal directs that the following should be attached to the file:

An order restricting publication in
this proceeding under ss. 486.5(1), (2), (2.1), (3), (4), (5), (6), (7),
(8) or (9) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of the
Criminal
Code
provide:

486.5 (1)     Unless an order is
made under section 486.4, on application of the prosecutor in respect of a
victim or a witness, or on application of a victim or a witness, a judge or
justice may make an order directing that any information that could identify
the victim or witness shall not be published in any document or broadcast or
transmitted in any way if the judge or justice is of the opinion that the order
is in the interest of the proper administration of justice.

(2)     On application of the
prosecutor in respect of a justice system participant who is involved in
proceedings in respect of an offence referred to in subsection (2.1), or on
application of such a justice system participant, a judge or justice may make
an order directing that any information that could identify the justice system
participant shall not be published in any document or broadcast or transmitted
in any way if the judge or justice is satisfied that the order is in the
interest of the proper administration of justice.

(2.1) The
offences for the purposes of subsection (2) are

(a) an offence under section 423.1, 467.11,
467.111, 467.12, or 467.13, or a serious offence committed for the benefit of,
at the direction of, or in association with, a criminal organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1) or
(2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or

(d) an offence under subsection 21(1) or
section 23 of the
Security of Information Act
that is committed in
relation to an offence referred to in paragraph (c).

(3)     An order made under this
section does not apply in respect of the disclosure of information in the
course of the administration of justice if it is not the purpose of the disclosure
to make the information known in the community.

(4)     An applicant for an order
shall

(a) apply in writing to the
presiding judge or justice or, if the judge or justice has not been determined,
to a judge of a superior court of criminal jurisdiction in the judicial
district where the proceedings will take place; and

(b) provide notice of the
application to the prosecutor, the accused and any other person affected by the
order that the judge or justice specifies.

(5)     An applicant for an order
shall set out the grounds on which the applicant relies to establish that the
order is necessary for the proper administration of justice.

(6)     The judge or justice may
hold a hearing to determine whether an order should be made, and the hearing
may be in private.

(7)     In determining whether to
make an order, the judge or justice shall consider

(a) the right to a fair and
public hearing;

(b) whether there is a real and
substantial risk that the victim, witness or justice system participant would
suffer harm if their identity were disclosed;

(c) whether the victim, witness
or justice system participant needs the order for their security or to protect
them from intimidation or retaliation;

(d) societys interest in
encouraging the reporting of offences and the participation of victims,
witnesses and justice system participants in the criminal justice process;

(e) whether effective
alternatives are available to protect the identity of the victim, witness or
justice system participant;

(f) the salutary and deleterious
effects of the proposed order;

(g) the impact of the proposed
order on the freedom of
expression
of those affected by it; and

(h) any other factor that the
judge or justice considers relevant.

(8)     An order may be subject to
any conditions that the judge or justice thinks fit.

(9)     Unless the judge or justice
refuses to make an order, no person shall publish in any document or broadcast
or transmit in any way

(a) the contents of an
application;

(b) any evidence taken,
information given or submissions made at a hearing under subsection (6); or

(c) any other information that
could identify the person to whom the application relates as a victim, witness
or justice system participant in the proceedings.
2005, c. 32, s. 15; 2015, c. 13, s. 19

486.6 (1)  Every person who fails to
comply with an order made under subsection 486.4(1), (2) or (3) or
486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an
order referred to in subsection (1) applies to prohibit, in relation to proceedings
taken against any person who fails to comply with the order, the publication in
any document or the broadcasting or transmission in any way of information that
could identify a victim, witness or justice system participant whose identity
is protected by the order. 2005, c. 32, s. 15.





COURT OF APPEAL FOR ONTARIO

CITATION: R. v. K.P., 2020 ONCA 534

DATE: 20200827

DOCKET: C63608

Feldman, van Rensburg and
Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

K.P.

Respondent

Alexander Ostroff, for the appellant

Emily Marrocco, for the respondent

Heard: July 14, 2020 by video conference

On appeal from the sentence imposed on December
8, 2016 by Justice Jane E. Kelly of the Superior Court of Justice.

Thorburn J.A.:





A.

OVERVIEW

[1]

This is an appeal from the indeterminate
sentence imposed on the appellant following his conviction for attempted murder
and choking to overcome resistance for the purposes of attempting to murder
J.M., a woman with whom he was in an intimate relationship.

[2]

On the hearing before the sentencing judge, it
was agreed that the appellant is a dangerous offender. The only issue was
whether there was a reasonable expectation that the appellants risk could be
controlled in the community under a long-term supervision order such that a
determinate sentence would adequately protect the public.

[3]

After a careful review of the evidence, the
sentencing judge determined that it could not.

[4]

For the reasons that follow, I would dismiss the
appeal.

B.

ISSUES ON APPEAL

[5]

The appellant argues that the sentencing judge
should have ordered a determinate sentence followed by a long-term supervision
order, not an indeterminate sentence.

[6]

The appellant claims the sentencing judge erred by:

a)

presuming she was required to impose an
indeterminate sentence; and/or

b)

concluding there was no reasonable expectation
that a determinate sentence and long-term supervision order would adequately
protect public safety.

[7]

The appellant also notes that since the release
of the sentencing judges decision, the Supreme Court of Canada rendered its
decision in
R. v. Boutilier,
2017 SCC 64, [2017] 2 S.C.R. 936, which clarified
that the imposition of an indeterminate sentence is appropriate only where it
is the least restrictive means to protect the public.

C.

THE STATUTORY SCHEME
AND LEGAL INTERPRETATION

(1)

Dangerous Offender Designation Stage

[8]

Section 753.1 of the
Criminal Code
, R.S.C.,
1985, c. C-46 sets out the criteria that must be satisfied before a court finds
an offender dangerous. This is referred to as the designation stage. Section
753.1 provides that:

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  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
offenders 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  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.

(2)

Penalty Stage  Imposing an Appropriate Sentence

[9]

Once a person is designated a dangerous offender,
the sentencing judge moves on to consider the appropriate sentence  the
penalty stage. Section 753(4) of the
Criminal Code
provides three
options for sentencing:

(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.

[10]

Section 753(4.1) provides guidance on how the
sentencing judge should exercise discretion when choosing among the three
options:

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.

[11]

To determine whether a lesser measure will
adequately protect the public, there must be evidence before the sentencing
judge that the dangerous offender can be safely released into the community.
However, as the majority of the Supreme Court of Canada held in
Boutilier
,
at para. 76, s. 753(4.1) does not create a presumption that indeterminate detention
is the appropriate sentence.

[12]

Section 753(4.1) requires the sentencing judge to
engage in a thorough examination of all the evidence presented during the
hearing to determine the fittest sentence:
Boutilier
, at para. 76
. The sentencing judge must
consider whether there
is a reasonable expectation that a lesser measure  a conventional
fixed‑term sentence or a fixed-term sentence of at least two years
followed by a long‑term supervision order  will adequately protect the
public against the risk that the offender will commit murder or further serious
personal injury offences:
Boutilier
, at para. 77
. The
sentencing judge must exhaust those lesser measures before imposing an
indeterminate sentence.
The majority further
explained that indeterminate sentences should be limited to habitual criminals
who pose a tremendous risk to public safety:
Boutilier
, at para. 77.

[13]

When determining the appropriate sentence to
manage the risk to public safety, the sentencing judge may consider
treatability:
Boutilier
, at para. 45. In assessing the manageability
and treatability of the offenders behaviour, the sentencing judge may consider
evidence, such as: treatment avoidance, failure to respond to treatment, breaches
of court orders, lack of motivation, continued involvement in high-risk
conduct, serious personality disorder, and elevated likelihood of violent
recidivism:
R. v. Radcliffe,
2017 ONCA 176, 347 C.C.C. (3d) 3, at
paras. 64-65, leave to appeal refused, [2017] S.C.C.A. No. 274.

[14]

Where the management of risk requires more tools
than are available under the parole authorities, an indeterminate sentence is
reasonable. Risk management evidence must demonstrate a prospect of effective
supervision, within the means and capacity of the parole authorities:
R. v.
Severight
,

2014 ABCA 25, 566 A.R. 344, at paras. 40-43, leave to
appeal refused, [2014] S.C.C.A. No. 184. As this court has explained, real
world resourcing limitations cannot be ignored or minimized where to do so
would endanger public safety:
R. v. Little
, 2007 ONCA 548, 87 O.R.
(3d) 683, at para. 70, leave to appeal refused, [2008] S.C.C.A. No. 39.

(3)

Standard of Review

[15]

An appellate court may review an indeterminate
sentence for legal error and reasonableness, but the credibility and factual
findings made in determining the appropriate sentence are entitled to deference:
R. v. Sawyer
, 2015 ONCA 602, 127 O.R. (3d) 686, at para. 29. While the
standard of review is somewhat more robust than other sentence appeals, it is
not a hearing
de novo: R. v. Sipos
, 2014 SCC 47, [2014] 2 S.C.R. 423, at
para. 26.

D.

THE EVIDENCE

(1)

The Circumstances of the Offence

[16]

On December 24, 2011, the appellants domestic partner
told the appellant that she did not wish to have a drink with him. The
appellant had consumed approximately seven shots of alcohol and had been smoking
marihuana.

[17]

The appellant became enraged. He grabbed his
partner by the throat, choked her, and stabbed her in the abdomen with a knife.

[18]

At trial, the appellant explained that before he
grabbed her by the throat, he lost it and had no control. After he choked
and stabbed her, he followed her into the bedroom and continued ranting, still
holding the knife.

[19]

The appellants partner climbed through a small
window to escape and fell twenty-five feet to the ground. She suffered serious
and long-lasting physical and emotional consequences from the incident. At the
time of her victim impact statement in 2014, she stated that she was still in
constant, barely tolerable pain, on 20 painkillers, suffering PTSD, requiring
in-home paramedical care, and using a wheelchair. She stated that the
appellants actions had altered her life forever.

(2)

The Appellants Background

[20]

The appellant is now 47 years old. He was born and
raised in Newfoundland. He has lived a nomadic lifestyle, living in various
parts of the country starting at a young age. He maintains contact with his
mother but has no relationship with his biological father, step-father, or
siblings. The appellant does not have close friends or long-term friendships.

[21]

When the appellant was two years old, his mother
separated from his biological father, who had problems with alcohol use and was
violent when intoxicated.

[22]

The appellant began drinking alcohol and smoking
marihuana at age 10. He dropped out of school at age 15. He has spent
considerable time in homeless shelters and group homes, living on social
assistance. Generally, his history demonstrates that any employment did not
last long unless he was supervised.

[23]

His longest term of employment was one year
removing asbestos while on parole.

(3)

The Appellants Criminal History

[24]

The appellant has approximately 20 convictions
dating back to the late 1980s. The convictions disclose a pattern of assaultive
behaviour, possession of weapons, failure to comply with court orders, and an
escalation of serious violence.

[25]

In particular, there is a pattern of violence
against intimate partners. While there were no allegations of assaultive
behaviour related to his first domestic relationship, all three of his most
recent relationships resulted in convictions.

[26]

In 1996, his second domestic relationship
resulted in a conviction for assault, which arose after an argument about his
cannabis use and unemployment. He received a suspended sentence of one year and
probation.

[27]

Also in 1996, the appellant was convicted of possession
of a weapon after being rejected by a love interest. As a result of the
rejection, he took a shotgun and ammunition and walked into the bush, claiming
he was suicidal. He received a suspended sentence and probation.

[28]

The appellants third domestic relationship resulted
in a 2006 conviction for attempted murder. The appellant and his partner lived
together for approximately two years. When his partner told the appellant she
wanted to leave, he confronted her with a knife and choked her to the point of
dizziness. She moved out two weeks later, and he threatened suicide.

[29]

A couple weeks after she left, the appellant
asked her to return to the apartment to help him look for their shared cat. His
partner attended with her sister, which made the appellant angry. The appellant
said he had a surprise for his partner, he then took a hammer from a duffle bag
and said he was going to kill them both. He struck his partner repeatedly in
the head. At one point, he armed himself with a knife and tried to stab her in
the stomach. She grabbed the knife and sustained severe cuts to her fingers.

[30]

The appellant was sentenced to six years and ten
months in the penitentiary. He was released on his statutory release date, June
12, 2008.

[31]

The appellants fourth domestic relationship led
to the convictions in question, described above.

(4)

Evidence of the Psychiatrists

[32]

Dr. Philip Klassen and Dr. Jeff McMaster are
psychiatrists. Dr. Klassen conducted the assessment filed under s. 752.1(2) of
the
Criminal Code
, while Dr. McMaster prepared an opinion report
for the appellant.

(a)

Alcohol and Drug Use

[33]

Dr. Klassen diagnosed the appellant as likely suffering
from alcohol and cannabis use disorder (in sustained full remission in a
controlled setting). Dr. McMaster concurred.

[34]

The appellant told Dr. Klassen he had been using
both alcohol and cannabis since age 10, and cannabis daily since age 16. He
characterized himself as having a mixed addiction issue, often using drugs and
alcohol together. In addition, he told Dr. Klassen he had a history of using
cocaine, amphetamines, opioids, and MDMA.

(b)

Information from Former Domestic Partners

[35]

Dr. Klassen also spoke to two of the appellants
former partners, and Dr. McMaster referred to these interviews in his
report. The appellants third partner described the appellant as controlling,
jealous, dependent, and paranoid. The appellants fourth partner who was the
victim in the predicate offences, also described the appellant as manipulative
and controlling. She indicated that he repeatedly threatened suicide during
their relationship, accused her of lying, behaved impulsively, and did not
appear to feel guilt or remorse.

(c)

Psychiatric History and Diagnoses

[36]

The appellant says he has suffered from
depression throughout his life and has a long history of suicidal ideation and
panic symptoms.

[37]

Both Drs. Klassen and McMaster diagnosed him as
suffering from antisocial personality disorder and borderline personality
disorder.

[38]

Dr. Klassen indicated that there is no
definitive treatment for antisocial personality disorder. The focus is instead
on specific aspects of offending behaviour or paths to re-offending.

[39]

Both psychiatrists agreed that impairment from
borderline personality disorder wanes with advancing age, and that dialectical
behaviour therapy can be an effective treatment. However, this therapy is not
available in the Correctional Services of Canada.

(d)

Lack of Success with Treatment

[40]

After his 2006 attempted murder conviction, the
appellant underwent a risk assessment. He described the offences involving the
sisters as an isolated event, downplayed the impact, and it was not clear to
the assessor that he felt true remorse.

[41]

In 2007, he participated in moderate-intensity substance
abuse programming for two months. Despite participating in the program, he
indicated that he would return to using marihuana because he needed it to
self-medicate. He felt that one of the contributing factors leading to the
attempted murder of his third partner was that he had
not
smoked marihuana
before the incident. He also completed a Partner Assault Program, from which he
said he did not learn much.

[42]

Once on parole in June 2008, he participated in
a National Moderate Intensity Family Violence Program. The parole office
provided a report, which indicated that the appellant: did not think he needed
the program; did not show significant effort in relation to assignments; had
little insight into his feelings of jealousy; became argumentative and unwilling
to accept information; and was unwilling to acknowledge any potential problems
in dealing with negative emotions when involved in a relationship.

[43]

Overall, the appellant showed little progress. Dr.
Klassen described the appellants performance in the family violence prevention
program as one of the poorer outcomes I have seen.

[44]

In 2009, the appellant filled out a National
Family Violence Prevention Test Battery, which involved pre-treatment and
post-treatment tests. Although there was an improvement from the pre-treatment
assessment, the post-treatment ratings by professional staff indicated ongoing
concern regarding empathy for his victims and being able to identify relapse
prevention concepts.

(e)

Risk Assessments

[45]

Both psychiatrists described the appellant as at
high risk to commit a violent act of some kind, with concerns about severe
violence. They scored him similarly on the actuarial risk assessment tools, as follows:

·

PCL-R (Psychopathy Checklist-Revised):
Dr. Klassen and Dr. McMaster found that the appellant scored 29 out
of 40. This score suggests difficulties with general and violent recidivism and
with treatment responsiveness. It places the appellant in the 80th percentile
with respect to a reference sample of North American offenders.

·

VRAG (Violence Risk Appraisal Guide):
Dr. Klassen found that the appellant scored 13  58% of similar
scoring individuals reoffended violently over 10 years in the community. Dr.
McMaster found that the appellant scored 16. In that category, 55% reoffended violently
within 7 years and 64% within 10 years.

·

ODARA (domestic assault risk assessment tool):
Dr. Klassen put the appellant in the highest risk
category. Among those with a similar score, 70% committed a further assault. Dr.
McMaster did not conduct an ODARA assessment.

·

HCR-20 (violent recidivism assessment tool)
: Dr. Klassen scored the appellant 22-33 out of 40, meaning that he was
at a moderately high to high risk of re-offending on release from the penitentiary.
Dr. McMaster scored the appellant 28-33 out of 40, meaning he was at high
risk of reoffending.

[46]

In sum, Dr. Klassen described the appellant as
at moderately high risk of violent recidivism and likely at high risk of
domestic violence recidivism. He opined that imminence, frequency, and severity
were all live concerns: imminence because the appellant re-offended shortly
after release from the penitentiary; frequency because the appellant would
likely engage in repeat violence; and severity given the history of serious
offences.

[47]

In sum, Dr. McMaster described the appellant as
a high-risk offender with a chronically elevated risk of violence, which is
highest in the context of intimate relationships. Dr. McMaster also opined that
the appellant searches for a perfect woman, sets in motion an intense relationship
to meet his dependency needs, but then causes the partner to want to leave the
relationship because of his controlling behaviour and jealousy. When that
occurs, the appellant engages in self‑destructive behaviour, rage, and
threats of suicide, which, in keeping with his antisocial personality, evolve
into thoughts and then acts of harming the partner.

(f)

Possibility of Treatment and Risk Management in
the Community

[48]

Dr. Klassen indicated that the appellants risk
for violence, particularly in the domestic context, would need to be managed
into his early to mid-fifties, as he believed that risk would decline with age.
He said that in order to obtain a reasonable expectation of risk control in the
community, an extensive list of factors would need to be put in place which include:

·

intense family violence / violence prevention
treatment;

·

dialectical behavioural therapy for borderline
personality traits;

·

substance abuse treatment, and regular
urinalyses if released;

·

release into a community correctional centre or
community release facility, where a high degree of structure and supervision
can be imposed;

·

a structured daytime routine; and

·

no cohabiting with an intimate partner without
the clear knowledge and consent of a supervisor.

[49]

Dr. Klassen emphasized that the big-ticket
items arethe supervision and the access to intimate partners because risk
could escalate quickly. He also noted that if the appellant started to struggle
with supervision, he might leave the jurisdiction.

[50]

Dr. McMaster opined that given the appellants
history of violence, risk factors, and history of difficulties with supervision
and treatment, high levels of risk management would be necessary if he were released
into the community. Intensive treatment in custody, intensive supervision, and
further treatment in the community would be necessary to manage his risk. Some
of his suggestions included, close supervision upon release, a night time
curfew, close monitoring of relationships, and a condition that he never
cohabit with an intimate partner again.

[51]

Dr. McMaster indicated that the risk flowing
from the appellants disorders may decline with age but [i]t is unclear if any
treatment success will translate to success (i.e. no recidivism) in the
community absent further external controls on his behaviour. Dr. McMaster
indicated that the appellants poor motivation and readiness for treatment
created a prominent difficulty, and his history suggests he may not follow
through with treatment.

[52]

Dr. McMaster also recognized that enforcement
could be difficult. He stated that while there may be time to intervene, Mr.
Payne may become involved with a vulnerable partner, who feels protective, or
conversely, too scared to report any difficulties.

(5)

The Effect of a Determinate Versus an
Indeterminate Sentence

[53]

According to the representative of the
Correctional Service of Canada (CSC), dangerous offenders serving determinate
sentences are eligible for statutory release, with supervision on parole, after
serving two-thirds of the sentence. Offenders serving indeterminate sentences,
remain under the jurisdiction of the CSC for their entire lives, with
eligibility for full parole after seven years, which may or may not be granted.

[54]

Once in the community, offenders are initially
seen a minimum of four times a month by a parole officer, and are instructed to
advise the parole officer of any changes in conditions. The responsibility for reporting
intimate relationships falls to the offender and only then does the parole
officer contact the partner. The only way to supervise such relationships is
either through self-report or contact by the parole officer with collateral
contacts, such as a landlord.

[55]

All offenders on parole are allowed out in the
community during the day when there is no monitoring.

E.

ANALYSIS OF THE SENTENCING JUDGES DECISION

(1)

The Predicate Offences

[56]

The sentencing judge first reviewed the
predicate offences. At the beginning of the trial, the appellant pleaded guilty
to aggravated assault, assault with a weapon, and choking for the purposes of
aggravated assault. The trial judge also convicted the appellant of the counts that
proceeded to trial: attempted murder and overcoming resistance to attempt
murder by choking. In coming to this conclusion, the trial judge had found that
the appellant choked and then stabbed his partner in the abdomen in the context
of a domestic dispute. She also found that he possessed the requisite intent to
kill.

(2)

Dangerous Offender Designation Stage

[57]

The sentencing judge agreed with the joint
submission of both parties that the appellant satisfied the dangerous offender
criteria under s. 753(1)(a). First, the predicate offences were serious
personal injury offences. Second, the offences were part of a pattern of
repetitive behaviour that the appellant could not control. Specifically, the
sentencing judge pointed out the similarities between the predicate offences
and the acts leading to the appellants previous convictions for attempted
murder and aggravated assault. In both cases, he lashed out violently after
feeling scorned by his intimate partner. In both cases, there was a brutal and
unprovoked attack using a knife. Third, the appellant exhibited a pattern of
persistent aggressive behaviour showing a substantial degree of indifference
with respect to consequences to other persons. Finally, the offences were so
brutal that it would be reasonable to conclude that his behaviour is unlikely
to be inhibited by normal standards of restraint.

(3)

Penalty Stage  Imposing an Appropriate Sentence

[58]

The only issue in dispute was the sentence to be
imposed. Both parties agreed that a determinate sentence would not be appropriate.
The appellant sought a sentence of nine years and four months in custody and a ten-year
long-term supervision order. The Crown sought an indeterminate sentence, which
the sentencing judge ultimately imposed.

[59]

As I explained earlier, the appellant makes two
arguments on appeal. First, the appellant claims the sentencing judge erred in
her interpretation of s. 753(4.1) by creating a presumption in favour of an
indeterminate sentence and that the indeterminate sentence she imposed was therefore
unreasonable. Specifically, he takes issue with the following statement:

If the sentencing judge is
uncertain

whether there is a reasonable expectation that a lesser measure will
adequately protect the public, then the sentencing judge should exercise
discretion and impose an indeterminate sentence. [Emphasis in original.]

[60]

Second, the appellant claims that there was evidence
on the hearing to satisfy a reasonable expectation that the appellant could be
treated for the underlying personality disorder. Specifically, the sentencing
judge failed to acknowledge the evidence that: (i) the appellant meaningfully
participated in one-on-one therapy during parole; (ii) he had not previously
been diagnosed with borderline personality disorder, and so, he had an
undiagnosed, untreated personality disorder until he was assessed by Dr.
Klassen in 2015; and (iii) there is evidence-based treatment for the disorder
through dialectical behavioural therapy, though the proposed treatment was not
offered by the Correctional Service of Canada.

[61]

I disagree.

[62]

The sentencing judge did not have the benefit of
the Supreme Court of Canadas decision in
Boutilier
, which provides
that s.
753(4.1) does not create a presumption that
indeterminate detention is the appropriate sentence. As noted above,
that
decision was rendered after the imposition of the appellants sentence.

[63]

The sentencing judges assertion that: If the
sentencing judge is uncertain

whether there is a reasonable
expectation that a lesser measure will adequately protect the public, then the
sentencing judge should exercise discretion and impose an indeterminate
sentence must be seen in light of the review she conducted.

[64]

It is clear from her review and assessment of
the evidence that she did not impose an improper presumption or shift the
burden of proof to the appellant. The sentencing judge in fact engaged in
analysis that accords with
Boutilier.
She engaged in a rigorous
analysis of the evidence and found as a fact that there was no reasonable
possibility of eventual control of the appellant in the community. Therefore,
the lesser alternative of a determinate sentence followed by a long-term
supervision order was not viable. Her analysis does not rely on a presumption
that an indeterminate sentence applied, nor was she uncertain about the
viability of any lesser measure.

[65]

The sentencing judge engaged in a thorough and
rigorous examination of the evidence to determine the fittest sentence. She
considered numerous factors, including: the appellants background; lengthy criminal
history, with particular emphasis on the pattern of violent offences inflicted
on domestic partners; history of substance abuse, lack of empathy; history of unsuccessful
treatment; and the opinions of the two psychiatrists, which were largely the
same.

[66]

Both psychiatrists alluded to the possibility of
managing the appellants risks in the community, but
only if
he could be
very closely supervised, especially in the context of cohabiting relationships
and have access to treatments that are not currently available.

[67]

The sentencing judge then identified the
specific frailties surrounding Dr. Klassens proposed plan of supervision:

·

The appellant has had limited, if any, success
with treatment.

·

Dialectical behavioural therapy is not available
at the Correctional Services of Canada.

·

Despite the successful completion of substance
abuse training, the appellant used alcohol and cannabis on release from custody
and on the night of the predicate offence. The appellant has battled substance
abuse for decades and seems unable to control it.

·

There are limited beds in community correctional
centres and no method of confirming that a bed will be available at the time of
release;

·

The appellant requires greater supervision than
is available from parole officers.

·

Monitoring intimate relationships depends on self-reporting.
There may not be time to intervene should a breakdown in a romantic
relationship occur, since the appellants history reveals a tendency to react
quickly and impulsively when rejected.

[68]

She therefore held that the appellant could not be
adequately supervised to ensure, to the extent possible, that he would not
reoffend. Due to his history of fast attachment and tendency to resort to
violence in intimate relationships, no amount of supervision could prevent yet
another victim being attacked by [the appellant] should he be released into the
community too soon. Nor could the appellant be meaningfully treated, such that
his risk to the public would be controlled at an acceptable level within a
determinate period of time. Given her finding that the appellant could not be
meaningfully supervised or treated, she concluded:

I am not satisfied that there is a reasonable
expectation that a lesser sentence (
ie
.
a determinate sentence
followed by a long-term supervision order) will adequately protect the public
against the commission of a serious personal injury offence.

[69]

This is not a situation where the sentencing
judge imposed an indeterminate sentence without considering the viability of
lesser alternatives. She was not uncertain about whether there was a
reasonable expectation that a lesser measure would adequately protect the
public; nor did she resolve any uncertainty against the appellant. Rather,
she concluded, after a full review of the evidence, that there is no reasonable
possibility of eventual control of [the appellants] risk in the community. As
such, she specifically rejected the option of a determinate sentence followed
by a long-term supervision order, as the public would not be adequately
protected if anything less than an indeterminate sentence was imposed.

[70]

While the sentencing judge did not use the
wording in
Boutilier
,

which had not been released at the time
of her decision on sentence, her conclusions were reasonable, amply supported
by the evidence, and in accordance with that case. She properly engaged in an
individualized assessment of all the relevant factors and
circumstances to determine a fit sentence.

F.

Disposition

[71]

For these reasons, I would dismiss the appeal.



Released: August 27, 2020 (K.F.)

J.A.
Thorburn J.A.

I
agree. K. Feldman J.A.

I
agree. K. van Rensburg J.A.


