



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Brahaney, 2022 ONCA 96

DATE: 20220203

DOCKET: C68255

Feldman, MacPherson and Thorburn
    JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

Laura Brahaney

Appellant

Jolene Hansell, for the appellant

Rebecca Schwartz, for the respondent

Heard: January 21, 2022 by video conference

On appeal from the judgment of Justice Hugh
    L. Fraser of the Ontario Court of Justice, dated June 14, 2019.

REASONS
    FOR DECISION

[1]

The appellant was convicted of ten offences arising
    out of the robberies and severe assaults on two victims. In a separate
    proceeding, she was convicted of four offences arising out of a similar robbery
    committed on another victim. All three attacks were planned and carried out by
    the appellant together with others, and all three were carried out within a ten-day
    period. The appellant was found to be a dangerous offender and sentenced to a
    determinate sentence of ten years, to be served consecutively to the sentence
    of five and one-half years for the similar offences which had been tried
    separately, followed by a ten-year long-term supervision order. The appellant
    appeals the dangerous offender designation and the sentence.

I.

background facts

[2]

The three robberies were all committed within a
    ten-day period in September 2014. There were three victims, referred to here as
    Mr. H., Mr. C., and Mr. M. The following is the description of the first and
    second robberies (the predicate offences), taken from the reasons of the
    sentencing judge on the dangerous offender application:

[Mr. H.] had been involved in Facebook
    communication since the spring of 2014 with a woman whose name he believed was
    Tracy. In response to a request that he send her $100 by Interac e-mail
    transfer, [Mr. H.] completed three such transactions to the account of Ms.
    Brahaney for a total of $300.

In early September 2014, Lisa Woolley had
    begun communication with [Mr. H.] on Facebook. Ms. Woolley had told [Mr. H.] that
    she wanted to hang out with him at his place. On September 4
th
, 2014,
    [Mr. H.] was at his residence when he received a Facebook message from Ms.
    Woolley suggesting that they meet.

[Mr. H.] and Ms. Woolley agreed to meet about
    two blocks away from [his] residence. This was part of a plan orchestrated by
    Ms. Brahaney to befriend [Mr. H.] and then rob him. When [Mr. H.] went to the
    agreed upon rendezvous location at 10:45 p.m. on September 4
th
, the
    person waiting for him was Laura Brahaney, not Lisa Woolley. Ms. Brahaney
    introduced herself as Tracy. She asked [Mr. H.] for his address, claiming
    that she wanted to text her mother to let her know where she was. This was
    actually a pretext to obtain the information so that she could relay it to her
    accomplices.

Ms. Brahaney and [Mr. H.] entered the 
    apartment building where the inner lobby is secured with a key fob lock. After
    passing through the secured door, Ms. Brahaney turned back and held the door
    open for her accomplices, Jake Hopwood and Traevonne Mattis. Once inside [Mr.
    H.]s apartment, they confined [Mr. H.] on the bed, blindfolded him, bound his
    hands and repeatedly assaulted him. Ms. Brahaney, Mr. Mattis and Mr. Hopwood
    then proceeded to remove every item of value that they could find in [Mr. H.]s
    apartment. They took computer equipment, a television, collectible coins, a
    small safe, and a vacuum cleaner. The transporting of the items from the
    apartment to a vehicle outside was captured on the buildings surveillance
    camera located in the lobby.

Ms. Brahaney then led [Mr. H.] out of the
    apartment building, accompanied by Mr. Mattis and Mr. Hopwood. Ms. Brahaney
    placed [Mr. H.] in the back seat of her SUV and drove him to a payphone outside
    of a [gas service station] in Cumberland, Ontario. While at the service
    station, [Mr. H.] was forced to telephone his father to make a ransom demand on
    behalf of his captors. Four calls in close sequence were made to [Mr. H.]s
    father, but the phone calls were never answered. Ms. Brahaney, accompanied by
    Mr. Hopwood and Mr. Mattis, eventually drove [Mr. H.] to Ms. Brahaneys
    residence. He was still bound and blindfolded when they removed him from the
    car. [Mr. H.] was then taken to the basement of the residence where he was
    placed in a dog crate and held there for over 24 hours.

On Saturday, September 6
th
, 2014, [Mr.
    H.] was removed from the dog crate and loaded into the back of Ms. Brahaneys
    vehicle as his captors were leaving for a planned trip to Toronto. Ms. Brahaney
    drove the vehicle while Lisa Woolley, Traevonne Mattis and Jake Hopwood were
    passengers along with [Mr. H.]. They brought [Mr. H.] to a wooded area near
    Gananoque, Ontario. His outer clothing was cut off. Mr. Mattis and Mr. Hopwood
    marched [Mr. H.] into the woods. Mr. Hopwood then choked [Mr. H.] into
    unconsciousness and left him for dead. Ms. Brahaney, Mr. Hopwood, Mr. Mattis
    and Ms. Woolley then continued on their journey to Toronto.

[Mr. H.] eventually regained consciousness and
    walked through the woods until he found a house and rang the doorbell, seeking
    assistance of the occupants.

[Mr. H.] sustained bruising and swelling to
    his right eye, bruising to his right shoulder and various cuts and bruises to
    his face, neck, torso, arms and wrists. He was admitted to the Kingston General
    Hospital on September 6
th
and released on September 7
th
.

A search warrant was later executed on Ms.
    Brahaneys residence. Several items belonging to [Mr. H.] were found in the
    residence along with the dog crate where [Mr. H.] had been confined. A piece of
    rope found in the basement had [Mr. H.]s blood and DNA on it.

Ms. Brahaneys cell phone was also searched
    pursuant to a search warrant. Her phone contained text messages in which she
    was communicating with her accomplices. There were photographs of some of [Mr.
    H.]s property found on her phone as well as text messages to her former
    boyfriend, in which she included photographs of her swollen knuckles which she
    claimed had resulted from beating someone up.

Before [Mr. H.] was deposited in the woods by
    his captors, Ms. Brahaney had begun to communicate with the next victim, [Mr. C.].

On September 6
th
, 2014, [Mr. C.]
    had checked into a room at [a motel] in Richmond, Ontario. [Mr. C.] had made
    plans to meet Ms. Brahaney for a sexual liaison. The two had been acquainted
    online for several years and had met on one occasion a few years prior to the
    September 6
th
meeting.

Ms. Brahaney, in text messages sent to [Mr. C.],
    repeatedly requested that they meet at his home, but [Mr. C.] insisted on
    meeting at a motel. Ms. Brahaney met [Mr. C.] at the motel, then the two drove
    to a nearby gas station. [Mr. C.] agreed to pay for the fuel that she used in
    driving to Richmond Hill. The two then went to a nearby Dominos Pizza
    establishment before returning to the room at the [motel].

The motels surveillance cameras show [Mr. C.]
    and Ms. Brahaney entering his motel room at 10:49 p.m. After arriving at the
    room, Ms. Brahaney left a short time later, ostensibly to retrieve a phone
    charger that [Mr. C.] required. Shortly after Ms. Brahaney left the room, she
    contacted a group of four accomplices, Jake Hopwood, Traevonne Mattis, Min Jin
    Son, and a male identified only as Trouble Beats. A plan had been formulated
    to rob [Mr. C.] of his belongings. Mr. Hopwood and Ms.  and Trouble Beats
    would deal with [Mr. C.], while Mr. Mattis and Mr. Son were to act as lookouts.

Mr. Hopwood and Trouble Beats forced the motel
    room door open as [Mr. C.] stood behind it and smashed the door into [Mr. C.]s
    leg. [Mr. C.] was then confined to the motel room, beaten and stabbed. His
    assailants repeatedly demanded money and threatened him. His wallet and cell
    phone were taken.

Ms. Brahaney took [Mr. C.]s car keys, then
    accompanied by Mr. Son, she drove the car to the residence that [Mr. C.] had
    been sharing with his partner. In response to a demand from the offenders, [Mr.
    C.] had given the address of his partner  as his home address. Ms. Brahaney
    entered the  residence and when confronted by [Mr. C.s partner], she demanded
    to know where [Mr. C.]s room was because she was going to retrieve some of his
    things. [Mr. C.s partner] told Ms. Brahaney to leave her residence before the
    police were called and Ms. Brahaney and Mr. Son left [the] residence in [Mr. C.]s
    car.

The offenders who remained in the motel room
    warned [Mr. C.] not to call for help and left him in the motel room severely
    injured and bleeding profusely. [Mr. C.] called 9-1-1 from the motel room phone
    and was eventually taken to hospital by ambulance. [Mr. C.] sustained a compound
    open fracture of his right ankle as well as ruptured right quadriceps tendon,
    both of which required surgery. He also sustained stab wounds to his right
    buttock, a laceration to his left ear and a laceration to the back of his head.

[3]

The following is the sentencing judges description
    of the offences arising from the third robbery (the related offences) that had
    been tried separately by Labrosse J., sitting with a jury:

On September 13
th
, 2014, [Mr. M.]
    met up with Laura Brahaney and Hibanura Ali and went for drinks at [a pub] in
    the city of Ottawa. After some time, he left the pub with Ms. Brahaney and Ms.
    Ali in Ms. Brahaneys SUV. At some point, two men emerged from the SUVs trunk
    and proceeded to beat [Mr. M.] either in the rear of the SUV or in a wooded
    area nearby. One of the two men was armed with a knife. [Mr. M.] was forced to
    provide his bank card along with his personal information number and the group
    attempted to withdraw money from his bank account. He was then left in the
    parking lot and threatened not to call the police. [Mr. M.] suffered serious
    injuries which included five fractures in the areas of his eyes, nose and face.

[4]

With respect to the related offences, a jury
    found the appellant guilty of kidnapping, robbery, aggravated assault and
    conspiracy to commit robbery. The appellant was sentenced by Labrosse J. to five
    and one-half years, less 25 months of pre-sentence custody and 15 months
    credit for restrictive bail conditions.

[5]

The appellant also had a record for two convictions
    for unlawful possession or sale of tobacco products, for which she served two
    conditional sentences in the community in 2009-2010.

[6]

The appellant was on bail prior to her
    sentencing on the related offences from April 2016 to January 2018 and resided
    at a halfway house, JF Norwood House, operated by the Elizabeth Fry Society.
    During that time, she engaged in some counselling sessions and received a
    positive report. The halfway house is prepared to have her back when she is
    released after serving her custodial sentence. She also completed the Womens
    Engagement Program in the penitentiary, as well as some other programs, and had
    expressed a desire to change.

[7]

Following her convictions on the related offences,
    the appellant was assessed under s. 21 of the
Mental Health Act
,
    R.S.O. 1990, c. M.7, by Dr. Gray, a psychiatrist at the Royal Ottawa Mental
    Health Centre. He found that there was no mental illness that caused the
    appellant to commit the offences, but that the planning of the robbery on the
    related offences suggested antisocial personality disorder traits and
    generalized anxiety disorder.

[8]

The appellant was also assessed by a forensic
    psychiatrist from CAMH, Dr. Iosif, for the purpose of the dangerous
    offender application under s. 752.1(1) of the
Criminal Code
, R.S.C.,
    1985, c. C-46. Dr. Iosif diagnosed antisocial personality disorder with
    borderline histrionic traits, as well as strong psychopathic characteristics. She
    also found that the appellant met the criteria for conduct disorder prior to
    the age of 15, a prerequisite to a diagnosis of antisocial personality disorder.
    The doctor commented that the period from September 4-13 when the three
    criminal incidents occurred showed someone who is in constant need of
    stimulation, impulsive, irresponsible, risk seeking, manipulative, and quite
    extraordinarily callous. The criminal versatility exercised in that period of
    barely one week is striking.

[9]

Dr. Iosif applied three risk assessment tools, known
    as the PCL-R, the HCR-20/FAM, and the SAPROF. Each of them identified a
    moderate-high risk of future offending. However, these tools are limited in
    their ability to predict risk for women as opposed to men. Dr. Iosif also
    acknowledged that there are no risk assessment tools that predict the severity
    of future offending. She concluded, however, that the appellants risk would
    increase in the context of opportunity, association with anti-social peers, and
    substance use. Substance use and association with anti-social peers were ongoing
    factors for the appellant. She had conducted such associations while at JF Norwood
    House. She was also diagnosed with alcohol use disorder in remission in a
    controlled environment.

[10]

Dr. Iosif made the following comment regarding possible
    dangerous offender status, which was referred to by the sentencing judge:

The most salient diagnosis in Ms. Brahaneys
    case is her personality structure. Personality disorders are stable over time
    and difficult to change. Intensive psychological intervention is required over
    years to affect even minor shifts.

Psychiatric medications do not affect
    personality structure. The psychological underpinnings that contributed to Ms.
    Brahaneys offences remain intact. Ms. Brahaney has had little psychological
    treatment to address such issues at this juncture.

Ms. Brahaney tends to minimize her role and
    difficulties and therefore her motivation for treatment is somewhat
    questionable, although she has indicated that she wants to pursue programming
    in federal institutions. Clarifying exactly  what exactly she is motivated to
    address might be helpful in determining her course in that regard.

[11]

The sentencing judge also noted the following
    from Dr. Iosifs report on the topic of risk management and treatment
    recommendations:

Ms. Brahaney requires a substantial level of
    intervention and significant resources to decrease her risk. Her needs should
    be directed toward therapies that focus on maladaptive personality traits, such
    as skill building in learning self-regulation and self-management skills.
    Assisting with abstinence from drugs and alcohol, and assistance to engage in
    meaningful activities including employment would also be helpful. Supportive
    family interactions would also be of benefit.

II.

The sentencing judges reasons

[12]

The sentencing judge clearly set out the
    requirements for a dangerous offender designation by referring to the recent Supreme
    Court of Canada decision in
R. v. Boutilier
, 2017 SCC 64, [2017] 2
    S.C.R. 936, where the court reiterated the four explicit criteria for a
    dangerous offender declaration: (1) the offender has been convicted of, and has
    to be sentenced for, a serious personal injury offence; (2) this predicate
    offence is part of a broader pattern of violence; (3) there is a high
    likelihood of harmful recidivism; and (4) the violent conduct is intractable. The
    sentencing judge noted that
Boutilier
clarifies that treatability is
    considered at both the designation and the sentencing stages, and that
    intractability is a requirement for the designation.

[13]

In this case, there was no dispute that the predicate
    and related offences constitute serious personal injury offences. The sentencing
    judge made a number of findings based on the record. He first found that the
    robberies established a pattern of repetitive behaviour with a very high degree
    of similarity, including that the appellant targeted male victims with sexually
    manipulative behaviour, and subjected them to severe violence at the hands of her
    male accomplices. The pattern showed a failure by the appellant to restrain
    herself. This conclusion was supported by Dr. Iosif in her report.

[14]

The sentencing judge next turned to the role of
    treatability in the analysis. He again referred to
Boutilier
, where
    the Supreme Court confirmed that at the designation stage, the treatment
    prospects must be so compelling that the court cannot find beyond a reasonable
    doubt that the individual presents a high likelihood of harmful recidivism or
    that their violent pattern is intractable. However, at the penalty stage, the
    prospect of treatability will affect the appropriate sentence to manage the
    threat.

[15]

The appellant argued that the risk assessment
    tools did not indicate that her risk was to commit violent offences, just a
    general risk, and that the appellants successful stay at JF Norwood House
    showed that she is treatable and manageable in the community. In response, the
    sentencing judge expressed the view that too much was made of the appellants
    success at JF Norwood House. The extent and success of any counselling there
    was unclear. The staffs very positive appraisals of the appellant were not
    fully explained. They were unaware that she was having phone calls with
    anti-social associates while there, and that she took pride in her associations
    and was knowledgeable about their activities. She also had visits from
    unsavoury people. Dr Iosifs report stated that the JF Norwood House
    counselling sessions did not have a discernable result or effect, and that her
    interview showed that the appellant lacked remorse or insight into her offences,
    and that she continued to deflect blame and to minimize her responsibility.

[16]

The sentencing judge acknowledged the letter the
    appellant filed at the hearing, in which she expressed her remorse, but noted
    that there is still a paucity of evidence that would indicate that Ms.
    Brahaney has gained any insight into why she committed these horrendous
    crimes.

[17]

Having found that the criteria in s.
    753(1)(a)(i) were satisfied, the sentencing judge went on to find that the
    brutal behaviour associated with the offences compelled the conclusion that the
    appellants behaviour in the future was unlikely to be inhibited by normal
    standards of behavioural restraint. The sentencing judge referred again to the
    appellants cruel and sadistic conduct against Mr. H., including scrubbing his
    back with a hard brush and metal scraper, then rubbing him with gasoline and
    bleach, holding him in a dog crate, and telling him she had cut off his cats
    tail. The appellant had described the beating and stabbing of Mr. C. by
    the others as fun. The sentencing judge therefore found that the criteria
    under s. 753(1)(a)(iii) had also been satisfied beyond a reasonable doubt.

[18]

The sentencing judge found that the appellant
    has a high risk of violent reoffending, which he based, in part, on his finding
    that the three offence incidents demonstrated a disturbingly casual attitude
    towards extreme violence:

The circumstances of these three offences
    demonstrate a disturbingly casual attitude towards extreme violence. This,
    along with the identified personality disorder and the lack of insight into why
    these offences were committed, contribute to the likelihood that Ms. Brahaney
    will cause death or injury or severe psychological damage through a failure to
    restrain her behaviour in the future.

[19]

Regarding the role of the risk assessment tools
    in his finding of a high risk of violent offending in the future, the
    sentencing judge noted that the tools do not give any information about the
    severity of future offences and explained that they were only part of the
    evidence.

[20]

The sentencing judge concluded that the evidence
    regarding the appellants treatment prospects was not sufficient to dissuade him
    from being satisfied beyond a reasonable doubt that the appellant had a high
    likelihood of harmful recidivism and that the violent pattern was intractable.
    As a result, the sentencing judge was required to find the appellant to be a
    dangerous offender.

[21]

Turning to the imposition of a sentence for the
    predicate offences, the sentencing judge instructed himself from
Boutilier
that the court is to consider the least coercive sentence first, and referred
    to s. 753(4.1), which sets out the presumptive sentence. That sentence is
    detention in a penitentiary for an indeterminate period unless the court is
    satisfied by the evidence of a reasonable expectation that a lesser measure
    under s. 753(4)(b) or (c) will adequately protect the public from the
    commission of murder or a serious personal injury offence.

[22]

Based on the evidence of Dr. Iosif that the
    appellants risk could be decreased with the appropriate intervention therapies
    and family support, the sentencing judge concluded that there is a reasonable
    expectation that a determinate sentence combined with a long-term supervision
    order would adequately protect the public against the appellant committing
    murder or a serious personal injury offence, and was the least coercive
    sentence that could adequately manage the risk. He then listed six reasons to
    support that finding: (1) Dr. Iosifs conclusion that treatment, supervision
    and release into the community over a long period of time could make the risk
    to the public a manageable one; (2) the appellant has commenced programming in
    the penitentiary and is willing to continue with it; (3) in her letter to the
    court the appellant states that she wants to change and has pro-social goals
    that are realistic; (4) the appellant is motivated to be a better mother for
    her daughter, to spend meaningful time with her and steer her on the right
    path; (5) the appellant belatedly acknowledged the harm she had done; and (6) a
    long-term supervision order will have detailed conditions specific to the needs
    of the appellant.

[23]

For the determinate sentence, the Crown asked
    for 15-20 years, reduced to 12-17 years to give effect to the totality
    principle, as it would be consecutive to the five and one-half year sentence
    imposed for the related offences. The Crown also sought a ten-year long-term
    supervision order to follow. The appellants counsel submitted that a two and
    one-half to three and one-half year determinate sentence was appropriate. He
    also submitted that the court should view the three incidents as a spree, such
    that applying the totality principle would require a significant reduction in
    the total sentence.

[24]

The sentencing judge rejected the spree
    submission. The three robberies were each planned in advance; each victim was
    lured to an ambush where severe gratuitous violence was done to him. The sentencing
    judge concluded that these were not impulsive crimes committed in quick
    succession by someone who was having a bad week.

[25]

The sentencing judge viewed each of the
    robberies as groups of serious offences including a violent home invasion,
    kidnapping with a ransom demand, violence and confinement. Two of the victims maintain
    permanent physical injuries including disfigurement and ongoing pain. The sentencing
    judge reviewed case law and sentencing ranges for these crimes, and imposed a
    total sentence of ten years to be served consecutive to the five and one-half
    years for the related offences, taking totality into account, plus a ten-year
    long-term supervision order. The sentencing judge stated, in concluding, that
    the combined period of supervision he was imposing was 20 years, which while a
    lengthy period, would give the appellant hope that she could become a
    productive, pro-social member of society.

III.

Issues on the appeal

[26]

The appellant asks the court to set aside the
    dangerous offender designation, and to reduce the length of the determinate
    sentence. The appellant raises the following issues:

1.

Did the sentencing judge misapprehend the
    evidence regarding whether the appellant had a high risk of violent recidivism?

2.

Did the sentencing judge err by failing to give adequate
    effect to the totality principle and by imposing a crushing total sentence?

IV.

Analysis

(1)

Did the sentencing judge misapprehend the
    evidence regarding whether the appellant had a high risk of violent recidivism?

[27]

Appellate review of a dangerous offender
    designation is concerned with legal errors and whether the dangerous offender
    designation was reasonable:
R. v. Sipos
, 2014 SCC 47, [2014] 2 S.C.R.
    423, at para. 23. While deference is owed to the factual and credibility
    findings of the sentencing judge, appellate review of a dangerous offender
    designation is more robust than on a regular sentence appeal:
Sipos
,
    at paras. 25-26.

[28]

The appellant submits that her dangerous
    offender designation is unreasonable because the sentencing judge either
    misapprehended or did not give sufficient weight to the appellants treatability,
    as evidenced by her successful stay in JF Norwood House without committing any
    offences, her willingness to participate in treatment, and her motivation and
    expression of remorse. The appellant also submits that the trial judge erred in
    relying on the risk assessment tools, which only predict the risk to reoffend in
    general, but not necessarily violently.

[29]

We do not accept these submissions. The
    sentencing judge was alive to each of the arguments presented and responded to
    them. He understood the limits of the risk assessment tools, which predict
    general recidivism including violent recidivism but without differentiation. He
    looked at the history of the three robberies and the violence perpetrated,
    together with the appellants callous indifference to it, the planning, and her
    failure to acknowledge her role or to take responsibility, until she did so to
    some extent in her letter to the court. He also considered the limited evidence
    about any success at treatment so far, as well the nature of her diagnosis of
    anti-social personality disorder, which is very difficult to change through
    treatment. We see no error in his apprehension of the evidence, his analysis,
    or his conclusion.

(2)

Did the sentencing judge err by failing to give
    adequate effect to the totality principle and by imposing a crushing total
    sentence?

[30]

The appellant submits that the sentencing judge
    erred by not viewing the three incidents as a spree that should have attracted
    a lower total sentence, and by not taking into account the crushing effect of
    the total sentence of 15.5 years for the three incidents. The appellant argues
    that, in accordance with the totality principle, the sentence should be reduced
    to five years served consecutively to the five and one-half year sentence on
    the related offences (for a total of 10.5 years). The appellant also asks this
    court to reduce the long-term supervision order from ten years to five years.

[31]

We do not accept these submissions. The
    sentencing judge adverted to totality a number of times in his consideration of
    the appropriate determinate sentence. He specifically rejected the spree
    characterization with cogent reasons. He was alive to the need to impose the
    least onerous and least restrictive sentence taking the record into account.
    Having found that the possible potential for treatment meant he would not
    impose an indeterminate sentence, the sentencing judge considered in detail the
    appropriate determinate sentence for the two predicate offences, factoring in
    the five and one-half year sentence for the related incident. The length of the
    long-term supervision order imposed by the sentencing judge is supported by the
    evidence, including Dr. Iosifs recommendation of a gradual and slow released
    into the community. We see no error in the sentencing judges approach, or in
    his conclusion.

[32]

The appeal is therefore dismissed.

K.
    Feldman J.A.

J.C.
    MacPherson J.A.

J.A.
    Thorburn J.A.


