R. v. Toews, 2012 ABQB 283

Court of Queen ’ s Bench of Alberta Citation: R. v. Toews, 2012 ABQB 283 Date: 20120427 Docket: 091048587Q1 Registry: Red Deer Between: Her Majesty the Queen Crown - and - Jesse Peter Toews Accused Restriction on Publication: By Court Order, information that may identify the person described in this judgment as the complainant or the victim may not be published, broadcast, or transmitted in any manner. There is also a ban on publishing the contents of the application for the publication ban or the evidence, information or submissions at the hearing of the application.

See the Criminal Code , s. 486.4 Editorial Notice: On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice M.R. Bast _______________________________________________________

A. Introduction B. The Dangerous Offender Application 1. Prerequisites for making a Dangerous Offender Application 2. s. 753(1) Application for finding that an offender if a dangerous offender 3. Burden of Proof 4. Evidence on a Dangerous Offender Application 5. Issues on the Dangerous Offender Application 6. Circumstances of the index offence 7. Victim Impact Statements 8. Evidence adduced at the Dangerous Offender Hearing (

a) Evidence relating to the Offender (

i) Family and Social History (ii) Education (iii) Early Psychiatric Treatment (1991 – 1999) (iv) Employment (

v) Criminal Record and other conduct (vi) Probation, Sentence breaches and Probation breaches (

b) SAFPC Records and other information gathered at SAFPC (i) 2009 Psychological Testing (ii) 2011 Psychological Assessment (iii) SAFPC file information (

c) Solicitor General Records and other criminal justice evidence

(

i) Dr. Dabrowski (ii) Dr. Handley (iii) Corrections Officer Johnstone (iv) Corrections Services Canada- Long-Term Supervision Orders (

d) Dr. Xie's s. 752.1 Assessment (

e) Other Expert Evidence – Dr. Woods (

f) Analysis of the Expert Evidence 9. Dangerous Offender Analysis (a) s. 753(1)(a)(iii) (

i) Brutality (ii) Unlikely to be Inhibited by Normal Standards of Behavioral Restraint (

b) s. 753(10(a)(i) (

i) A Pattern of Repetitive Behaviour (

c) The Threat Posed by the Offender (

d) Prospects for Treatment in relation to the Threat Issue C. Sentencing APPLICATION brought by Crown under s. 753 of Criminal Code of Canada to have JESSE PETER TOEWS declared to be adangerous offender. A. Introduction [1] On January 21, 2011, Mr. Toews was convicted after trial of the offence of aggravated sexual assault under s. 273(2)(

b) ofthe Criminal Code of Canada (the "index" offence), and upon conviction became liable to a sentence of life imprisonment. Immediatelyupon conviction the Crown gave oral notice on the record that it intended to pursue an application to have Mr. Toews declared to be aDangerous Offender. The hearing of the Dangerous Offender Application commenced on Jan 10, 2012. [2] The Supreme Court of Canada in R. v. Johnson, 2003 SCC 46 , [2003] 2 S.C.R. 357 (S.C.C.), confirmed thatdangerous offender proceedings are a part of the sentencing process, and are guided by the sentencing principles set out in s. 718 to 718.2of the Criminal Code.

[3] In R. v. L. (T. P.), (SCC), [1987] 2 S.C.R. 309 (S.C.C.) the Court confirmed that the primary purpose of thedangerous offender provisions in the Criminal Code was the protection of the public, and that in some cases, the dangerous offenderregime, based upon the nature and circumstances of the offender, provided for the "elevation of the goal of protection of the public overother sentencing principles".

The Court further confirmed that the dangerous offender regime was designed "to carefully define a verysmall group of offenders whose personal characteristics and particular circumstances militate strenuously in favour of preventativedetention." B. Dangerous Offender Application 1. Pre-conditions for making a Dangerous Offender Application [4] There are a number of statutory pre-conditions that the Crown must satisfy before being able to conduct a DangerousOffender Hearing. Defence counsel in this case agreed with the Crown that the following statutory pre-conditions were met: (

a) The required remand assessment was ordered on February 18, 2011, with thepurpose of that assessment being for use as evidence regarding the issue ofwhether the offender might be found to be a dangerous offender or long-termoffender under Dangerous Offender (s. 753) and Long Term Offender (s. 753.1)provisions of the Criminal Code. The remand order provided that Toews wasremanded to the custody of the Southern Alberta Forensic Psychiatric Centre(SAFPC) for the preparation of a remand assessment (s. 752.1). (

b) Dr. Xie's June 4th, 2011 remand assessment was filed with the Court on June 13th,2011. Dr. Xie's July 25th, 2011 updated remand assessment and supplementaryletter were filed with the Court and disclosed to both the Crown and DefenceCounsel. Dr. Xie's two assessment reports and supplementary letter wereultimately marked as Exhibits S-1, S-2 and S-3 in the hearing (s. 752.1(2) and s.753(1)). (

c) The Attorney General of Alberta's written consent to the Application was markedas Exhibit S-4 at the commencement of the hearing (s. 754(1)(a)); (

d) Toews was given notice outlining the basis of the application at least 7 daysbefore the hearing of the application through his counsel (s. 753(1)(b); (

e) A copy of the Crown's Notice was filed with the Court as Exhibit S-8 in thehearing (s. 754(1)(c); and (

f) It is admitted that Toews was convicted of a "serious personal injury offence" asdefined in s. 752 of the Code, and in any event I am satisfied that the aggravatedsexual assault for which Toews was convicted is a "serious personal injuryoffence" as defined in s. 752, in that the offence of aggravated sexual assault is astrictly indictable offence, which in this case involved the use of violence againstthe complainant and for which Toews may be sentenced to imprisonment for 10years or more. 2. Section 753(1) Application for finding that an offender if a dangerous offender [5] Section 753(1) of the Criminal Code sets out the criteria for a dangerous offender application.

753(1) Application for finding that an offender is a dangerous offender 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; [ 6 ] Once all the pre-conditions for the dangerous offender application have been met, as they were in this case, then s. 753(1) requires that "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" which I have already determined and was admitted by Toews' counsel; and (

b) that the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing three specified categories of behaviour that show certain outcomes from which a conclusion may be drawn. [ 7 ] The Crown in this case sought to establish that Toews constituted a threat on the basis of two of those categories of behavior.

The Crown's primary argument is that the evidence adduced in the hearing established that the behavior of Toews associated with the commission of the index offence of aggravated sexual assault was of such a brutal nature as to compel the conclusion that Toews' behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint (s. 753(1)(iii)).

[8] The Crown's alternative argument is that the evidence established a pattern of repetitive behaviour by Toews, of which theindex offence forms a part, showing a failure to restrain his behaviour and a likelihood of causing death or injury to other persons, orinflicting severe psychological damage on other persons, through failure in the future to restrain his behavior (s. 753(1)(a)). [9] Counsel for Toews argued that Toews does not meet the criteria for a dangerous offender, but does meet the criteria for along-term offender, because there is a reasonable possibility of eventually controlling Toews’ risk to the community. 3.

Burden of Proof [10] The Crown bears the onus of establishing, beyond a reasonable doubt, those matters required by s. 753 for a finding thatToews is a dangerous offender. R. v. Oliver (1997), 1997 ABCA 49 , 193 A.R. 241. 4. Permitted evidence on a dangerous offender application [11] In R v.

Jones, (SCC), [1994] 2 S.C.R. 229 (S.C.C.) the Court stated starting in para. 127: As with all sentencing, both the public interest in safety and the generalsentencing interest of developing the most appropriate penalty for the particularoffender dictate the greatest possible range of information on which to make anaccurate evaluation of the danger posed by the offender.

In the case of dangerous offender proceedings, it is all the more important that thecourt be given access to the widest possible range of information in order todetermine whether there is a serious risk to public safety. [12] Examples of the kinds of information that courts have admitted in dangerous offender proceedings include: (

a) previous convictions set out on the offender's criminal record as well as provenuncharged incidents(R. v. Mason (2001), (ON CA), 156C.C.C. (3d) 97 @ pp. 105-6 (Ont. C.A.)); (

b) pre-trial court-ordered psychiatric assessments (R v. Jones, supra); and (

c) evidence from parole officers who dealt with the offender during previous periodsof incarceration (R. v. Campbell (2003), 112 C.C.R. (2d) 34 (Ont. S.C.J.)). 5. Issues on the Dangerous Offender Application 1. Did the evidence adduced at the hearing establish beyond a reasonable doubt thatToews constitutes a threat to the life, safety or physical or mental well-being ofother persons on the basis of evidence establishing that: (

a) Toews behaviour in committing the index offence was of a brutal nature;and

(

b) The brutal nature of the behavior compels the conclusion that Toews behavior in the future is unlikely to be inhibited by normal standards of behavioural restraint. 2. Did the evidence adduced at the hearing establish beyond a reasonable doubt that Toews constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing: (

a) a pattern of repetitive behavior by Toews, of which the index offence is a part, showing a failure to restrain his behaviour; and (

b) a likelihood of Toews causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his behaviour. 6. Circumstances of the index offence [ 13 ] At approximately 10:00 a.m. on July 29, 2009, the 77 year old diminutive female victim was attacked from behind. She and Toews were unknown to each other. She was on her way to the grocery store, walking along a dirt path that ran through a bushy, treed area just west of the grocery store. Her attacker overpowered her and was silent throughout the attack.

The attacker used a hand to cover the victim's mouth, was mean and rough, and tried to pull the victim's panties down. The complainant begged her attacker to leave her alone and offered the attacker all her money. The victim doesn't know how long she was on her feet before she was rendered unconscious by her attacker. When the victim regained consciousness, she was alone on the ground in the treed and busy area. She was bleeding from a head wound. She walked with her shopping cart into the front door of the adjacent grocery store, looking for help.

The victim's face and clothing were covered in blood from her head wound. Her left eye was already blackening, she had cuts on her exposed skin and one leg of her pantyhose was ripped apart from the rest of the pantyhose. [ 14 ] The victim was transported to the hospital where she was examined and treated. Samples for a sexual assault kit were collected at the hospital, including a sample of the victim's blood.

The police seized the samples taken from the victim along with her panties. [ 15 ] The photos of the victim taken at the hospital illustrate the severity of the vicious beating inflicted on the victim by her attacker.

The victim had a large wound on the right side of her head that required stitches, two black eyes, bruising and scrapes on her left forehead and the left side of her nose and mouth, swelling on her right cheek, extensive bruising to her left ear, a patterned marking on her right jaw line near her right ear that the doctor described as tread marks similar to those left by a shoe in mud or snow, bruising on the back of her left shoulder, large bruises on her left forearm, bicep, wrist, palm, fingers and hand.

She also had bruising on the inside of her right upper arm; scrapes and bruises on her left knee, and a red mark in her pelvis area. The extent of the bruising and swelling to the victims eyes and ears increased significantly over the 24 hours after the assault, as can be seen by examining the photos of the victim taken at the hospital and those taken of her the next day.

In addition to the injuries depicted in the photos marked as Exhibits in the trial, the doctor who prepared the sexual assault kit also observed the following injuries in the victim's genital area: ∙ Superficial scrapes and red marks on the mons pubis from a pressure injury; and ∙ A painful laceration near the opening of the vagina, on the posterior fourchette, which was described as a full thickness tear, through the epidermis and dermis and down to the subcutaneous layer, caused by direct force being applied to the area, such as penetration of the vagina area, with a finger or penis.

[ 16 ] During the course of the police investigation, witness statements put Toews in the area of the attack on the morning of the attack, and upon Toews' arrest a sample of his blood was obtained. Laboratory analysis showed that the semen found on the victim's panties belonged to Toews, and that blood found on the panties was that of the victim. [ 17 ] Toews has taken no responsibility for this offence, despite his DNA being located on the panties of the victim.

At trial Toews gave evidence denying the offence, and stating that he was at another location in Red Deer with other people around the time of the attack trying to get a wallet back. Since conviction, records from SAFPC show that Toews stated that he wasn't even in Red Deer at the time of the offence, that he was sleeping with his girlfriend at the time of the offence, and that he was framed with this offence by his girlfriend who gave his DNA to the police when she gave them a used condom. 7.

The Victim Impact Statements [ 18 ] Victim Impact Statements (VIS) were provided by the victim, and three of her children. The four Victim Impact Statements were marked collectively as Exhibit S-26, and from them it can be seen that: ∙ The victim is fearful, stressed and worried that her attacker may come back to hurt her for revenge, she has flashbacks of that day and worries that it could happen again. ∙ The victim says that her memory has been affected, she now has a scar on her head, and she falls much more now due to the leg injury she sustained in the attack.

She now requires medication to sleep and she required many medical appointments and testing for sexually transmitted diseases. ∙ The victim says that before the attack she used to love going out on her own, but now she no longer goes for walks by herself because she is too afraid. She frightens easily now and had been forced to stay with her children to feel some safety. She has been forced to change all her routines & every aspect of her life. ∙ The VIS’s provided by the victim's three adult children describe the trauma they endured seeing their mother in her severely beaten condition.

They say that the impact of the attack has taken away the victim's feeling of safety, her health and her home in that she was required to move out of her home and into other accommodation after the attack. The victim's children described the impact that worry about their mother's safety and that of their families has had on them physically and emotionally. [ 19 ] In short, the victim impact statements demonstrate the very serious impact that Toews attack has had on not only the victim but also on her adult children and their families. 8. Evidence at the Dangerous Offender Application (

a) Evidence relating to the Offender (

i) Family and Social History [ 20 ] Toews biological parents divorced when he was 2.5 years old. Toews mother denied alcohol and drug use during her pregnancy. It was reported that Toews was "born blue" and suffered a "near drowning" when he was about 5 years old. His father was described as a drug addict who was physically and emotionally abusive. His mother married FC when Toews was 4 years old, and his half-brother was born 3 years later. Over the years Toews relationship with his half-brother was confrontational and fuelled with jealousy, and their last contact as adults ended in a physical confrontation. His home life was described as dysfunctional, confrontational and non-nurturing.

[ 21 ] Toews has displayed behavioral and anger management issues since he was a child, and the historical information collected at SAFPC described Toews as demonstrating the following behavioral difficulties before the age of 12: labile mood, hyperactivity, impulsivity, aggression, destruction of property, fire-setting, lying, theft from others including family, oppositional and defiant behaviour, running away, truancy, risk taking and failure to accept responsibility for his actions. [ 22 ] Toews was referred by a family doctor to a child psychiatrist, Dr.

Abelseth, in 1991 at the age of seven due to behavioral difficulties at home and at school, and he saw this psychiatrist off and on for mood, behavioral and anger issues until he was 15 years old. Toews had significant learning difficulties and these caused him stress school which exacerbated his anger and frustration both at home and at school. [ 23 ] By 1996 Toews had big problems at school, and the conflict between Toews and his sibling had escalated. Toews was suspended from school for aggression against a teacher and his involvement with the legal system soon began.

Toews was kicked out of home around 1999 due destruction of property and aggression against his mother and he was placed in foster care. According to his brother N, Toews pinned his mother against a wall and was punching the wall. On another occasion, in a fit of anger over not getting something he wanted, Toews a put a brick through the window of his mother's boyfriend's vehicle. Toews also told the family that he would kill everyone and blow the house up.

On a family camping trip Toews had a confrontation with his brother that got out of hand, and Toews wound up stomping around the campsite with a tire iron in his hand so that no one would come close to him or touch him.

Toews was still in foster care in the summer of 1999 when he was 15 and although he went back to live with his family for a period of time, he left home for good at around the age of 16 and thereafter resided in youth shelters or with anyone who would take him in, aside from a few custodial sentences the longest of which was 15 months in 2007. [ 24 ] Toews brother reported that Toews’ attitude changed when he started drinking alcohol at the age of 17. Toews associate with people who drank a lot, smoked marijuana and did other drugs.

At 19 Toews, without a driver's licence, drove off in his step-father FC's car, and challenged FC when FC caught up with him and took his car back. [ 25 ] In the time leading up to the index offence, Toews had been living with friends and intimate partners. A number of people who provided Toews with shelter gave evidence at the dangerous offender hearing, including RS, KV, DB and JS. Since Toews was rarely employed he seldom contributed to household expenses, aside from picking up groceries from the Food Bank.

Toews stole from JS, who let him stay with her, by using her bank card to withdraw money from her bank account. In 2005 Toews threatened RS, assaulted HB and RS's brother at RS's residence and broke a window at that residence when RS refused to let Toews in. Toews threatened KV and her family, and the police were called to the apartment Toews shared with KV when Toews began slamming and punching things in the apartment. At the end of July 2009, during the days immediately before the index offence an old acquaintance by the name of PS let Toews stay at his residence because Toews had been living on the street.

PS also loaned Toews some money and gave him odd jobs at his business to help Toews earn some money. When PS asked Toews to move out on July 30, 2009, Toews stole money from PS when he left. [ 26 ] Several of Toews' intimate partners gave evidence at the hearing, including RH, JC, KV, DB. All of these intimate relationships had episodes of violence in which Toews either assaulted his partner or destroyed property. Toews trashed the residence of DB on one occasion, smashed at least 4 or 5 of her cell phones during their relationship and threw their kitten against the wall killing it over anger at DB.

He punched a hole in the wall of RH's apartment and also damaged property in her apartment in a fit of anger, by throwing a lamp on the floor, overturning a dresser and striking RH with a large old style 27" TV that he threw at her. He also struck RH's child when the child was having a temper tantrum in the car. Toews also assaulted RW, a friend of DB's when Toews tried to take DB out of RW's apartment and he smashed DB's cell phone at that same time. Toews smashed JC's stereo in front of her 4.5 year old son.

Lydia Jonas gave evidence as a defence witness as to her observations and conversations with Toews who was her friend. She also observed and described his angry episodes, but claimed that Toews had never threatened her or been violent towards her. She admitted being contacted by SAFPC as a collateral friend of Toews and she admitted to falsely telling SAFPC that she and Toews were intimate partners and she could provide no explanation for doing so.

As such, I did not find her to be a reliable witness. [ 27 ] Generally, those people Toews lived with or dated, including his brother, described him as being moody and displaying fits of anger and aggression. They described his regular and often heavy consumption of marijuana and alcohol and his occasional use of methamphetamine and cocaine. Toews often drove the motor vehicles of some of these people, but he has never held a driver's licence. Toews was described as someone who could fly into a rage for seemingly silly inconsequential things, or based upon a look or a word or a statement.

Toews was described as a person who talked about fighting, and regularly made threats of violence. Some of these people were fearful of Toews' threats and some were not. His own brother N reported that Toews had a habit of becoming enraged and making death threats to N over the phone when N refused to give Toews what he wanted, such as a ride or money. N reported that while he never took these threats seriously there were times in the past when he was afraid of his brother.

(ii) Education [ 28 ] Toews struggled in school as a result of significant learning difficulties identified starting in elementary school, and the stress created by his learning difficulties caused him to be frustrated and angry at school. While he was never held back at the end of any grade, he never achieved the competencies expected at each grade level. He had conflicts with teachers, got into fights at school and was bullied and picked on. At one point he was taken out of regular school and home-schooled by his mother.

From grades 9 – 11, he was enrolled in an Integrated Occupational Program, but he never completed Grade 11 as it appears that he was ultimately removed from school for a number of reasons including truancy, aggression towards a teacher and fighting with fellow students. Testing completed for the purpose of the s.752.1 assessment showed that Toews' IQ level was in the lower extreme to low range. Although Dr.

Xie described this intelligence level at one point in her oral evidence "mild retardation" she also said that Toews was not dumb and he was still capable of some learning provided he sees a personal benefit in it. Testing conducted at SAFPC places Toews at a Grade 5.4 reading level and a Grade 5.3 level for sentence comprehension. (iii) Early Psychiatric Treatment (1991 – 1999) [ 29 ] Toews was referred to a child psychiatrist, Dr. Abelseth, in 1991 when he was 7 years of age due to anger, temper and depressions difficulties Toews was having at home and at school.

Abelseth initially treated Toews between 1991 and 1993, and his attempts to treat Toews' anger and episodes of agitation with medication were mostly unsuccessful, in part because Toews' mother often discontinued the medication on her own. By July 1993 Toews' mood was improved and medication eliminated his hallucinations.

This mood improvement helped Toews' anger, which became less persistent in all settings, but was still present to some extent in stressful places such as school and home. [ 30 ] After July 1993 Abelseth had no contact with Toews for about 2.5 years until Toews was once again referred to Abelseth as a result of anger and frustration issues. When Abelseth saw Toews this time, Toews had no mood problems, but he had significant expressive learning difficulties which in stressful situations, like school, were worse.

Abelseth identified obstacles to treatment including the fact that his mother and step-father's discontinued prescribed medication and also the family's inability to change their confrontational and dysfunctional ways. Abelseth attempted to get social agencies involved and he tried a few sessions of "family counselling" to attempt to reduce the conflict between Toews and his brother.

Abelseth also tried to help Toews develop coping skills to lower his anger and frustration, but this was not successful because Toews’ effort was intermittent, and his family situation continued to be confrontational, dysfunctional and non-nurturing. [ 31 ] By 1996 Toews problems at school and his conflict with his brother had both escalated. Toews was suspended from school for aggression against a teacher and he was on and off medication again.

In the spring of 1998 when Toews became involved with the legal system, dealing with his first two Youth Court convictions, his mother to sought out Abelseth once again, this time to provide an assessment for Youth Court purposes. At that time Abelseth found that Toews still had the same old problems of defiance, temper, anger, and non-compliance with authority.

In June 1999, when Toews was facing criminal charges as a result of an altercation at home, Abelseth found that Toews still had no acute psychiatric disturbances, an that he still had learning and defiance issues, but his anger and active defiance had settled down in foster care. Abelseth last saw Toes in January 2001 as a result of a new family doctor seeking a psychiatric update, and Abelseth found Toews' condition to be the same. [ 32 ] Abelseth noted that during treatment he found that Toews was not always honest and didn't take any responsibility for conflict but instead blamed others for it.

Impulsivity was a major problem for Toews, who as a child had a limited capacity to regulate himself with respect to anger, impulse and other behaviors. Abelseth observed that Toews displayed lots of indicators of conduct disorder, including negative social behaviors in several categories. While Abelseth was alert to the potential of Toews having Bi-polar Mood Disorder (BPMD), he did not make that diagnosis because in his opinion Toews' anger problems were not in keeping with BPMD but due to Toews lack of regulatory ability especially when Toews frustration increased in stressful situations.

Abelseth suspected an organic brain disorder, like Fetal Alcohol Spectrum Disorder (FASD), since Toews behavior was in keeping with that diagnosis, but Abelseth was unable to make that diagnosis because Toews' mother denied alcohol consumption during pregnancy. (iv) Employment [ 33 ] Toews has a sporadic employment history and has not maintained stable employment since he was 19 years of age. His employment since then has been in manual labor jobs of very short duration, usually a few weeks to a month.

Toews reported he has trouble keeping a job and had walked off the because he gets bored, frustrated and doesn't like being confronted about his performance

or being told what to do. (

v) Criminal Record and other conduct [ 34 ] Toews’ criminal record, which follows, was admitted as Exhibit S-7:

[ 35 ] In addition to entering Toews' criminal record, the Crown also presented oral evidence from his family and some complainants in relation to some of his convictions and other criminal behavior for which he was not charged or convicted. [ 36 ] Toews first conviction in Youth Court in 1998 occurred just before his 14th birthday involved the theft of a dirt bike owned by a kid he went to school with.

[ 37 ] Around 2005 Toews dated a girl by the name of KV. The relationship became rocky after about 1 year. KV observed Toews do methamphetamine 4 or 5 times and use marijuana. For a period of time KV, Toews and another male lived in the same apartment. On one occasion the police were called to that apartment because Toews was yelling and slamming and punching things, but he ran off before the police arrived. At the end of the relationship Toews threatened to kill KV, hit her, kill her father, her family, send a female to "kick her butt", and bomb her family's house.

Toews threats were made by phone, text and email to both KV and her father. KV took these threats very seriously and Toews was convicted on Jan 9, 2006 of uttering these threats. [ 38 ] Toews' February 3, 2006 conviction for take motor vehicle without consent came about when Toews was at friend AP's house overnight. AP's father always left the keys to his car by the phone, and in the early morning they heard the door slam and saw Toews back up the father's car and drive away, looking back once at AP as he drove away. [ 39 ] In 2006 Toews dated RH for about 3 months during one of her pregnancies.

The relationship was tumultuous with lots of arguments and yelling back and forth. He drove her car frequently and on one occasion, while driving, punched her 4 year old child in the leg, leaving a bruise, all because the child was having a temper tantrum. On another occasion Toews punched a hole in the wall. During the relationship Toews drank alcohol every day, and smoked marijuana, drinking on at least 2 nights each week to complete intoxication. When he was intoxicated he became more angry and hurtful with his comments.

After an oral argument he would just leave the residence, and then come back later and apologize. The relationship ended with an argument in which Toews became so enraged that he threw a lamp on the floor, pushed over a dresser and then picked up and threw at a large old style TV at RH, striking her with the TV on her lower stomach and sliding down her leg, giving her bruises. When she told Toews to get out, he ran to the door and said to her "Any woman who puts me in jail is dead". RH took this threat seriously and moved out of her apartment that same night.

She didn't see Toews for approximately 3 years, and then sometime in 2009 RH noticed Toews standing on the street as she drove by. When Toews saw her he drew a finger across his throat while looking at her which frightened her as RH took this as a threat. [ 40 ] In 2005 HB saw Toews punching RS in his residence, and when HB tried to get between them, Toews threw her across the table and went back to punching RS in the face. HB stated that Toews angered easily and he threatened people and talked about fighting people.

In July 2005 Toews was waiting for HB and JES at S's home, and Toews told them "your family is all dead". Toews punched JES and he told HB he was going to hit her, to which she replied "Fuck you" before Toews shoved her with both hands, causing her to hit the tree and fall to the ground and get bruising as a result. Toews then said he would kill HB. Toews later called RS on the phone, and then came to the door of the S residence ringing the doorbell and yelling for Richard to open the door.

When Richard refused to open the door, Toews kicked in a bedroom window and put his face to the broken window screaming nonsense and saying once again that he would kill them. Toews January 26, 2006 convictions for assault and mischief arise from this incident. [ 41 ] In 2005 - 2006 Toews lived for a time with JC, who he dated off and on for about a year. He lived with her because he didn't have anywhere else to live. During one argument he smashed her stereo on the floor in front of her 4.5 year old son. [ 42 ] When Toews dated DB between January and April 2009, he stayed with her frequently.

They used crack cocaine and alcohol together. In April they separated when Toews got angry and trashed her place which caused her to move out. [ 43 ] When Toews then had no place of his own in which to live, he was befriended platonically by a woman by the name of JS with whom he stayed for a number of months. Toews provided nothing towards the household expenses when he stayed with JS, except for groceries he sometimes obtained from the Food Bank. On one occasion JS gave Toews her bank card and asked him to withdraw some cash for her which he did.

Then one morning in April 2009 when she got up, JS noted that Toews was gone and that her bank card missing from her coat. She later found out that Toews used her bank card to obtain $500, and while JS reported the theft to the police Toews has never repaid her. While Toews lived with her she noticed that anything could bring on his anger such as a wrong look or a wrong word. She saw Toews use crack cocaine and he talked to her about being in fights and the fact that he was not happy.

Since his arrest for the index offence, Toews has told JS that he wants to be a professional inmate because he is more comfortable in jail and doesn't like being outside jail. [ 44 ] Toews reconciled with DB in July 2009 and at that time she noticed that he appeared to be paranoid of the police. They got a kitten together. During a fit of rage in an argument in which Toews told her if she did something the kitten would get it, he threw the kitten against a wall killing it. [ 45 ] At one point during Toews’ relationship with DB, they were at RW's apartment for a visit.

When Toews was unpleasant to DB, RW told him to leave and he initially left. However he returned and refused to leave without DB. When he began trying to pull DB

out the door, RW intervened and Toews threw RW into a closet causing bruising to her back, arm and leg. When RW told Toews she was calling the police, he responded by telling her that she was going to die and so was her daughter, and he smashed a cell phone on the street. Toews’ August 23, 2010 convictions for assault and mischief relate to this incident. (vi) Probation, Youth Court Sentence breaches and Probation breaches [ 46 ] Toews received 6 probationary sentences between March 1998 and January 26, 2006.

His criminal record shows that he had nine convictions for failing to comply with Youth Court Sentences, three adult convictions for failing to comply with the terms of his probation, one adult conviction for failing to comply with the terms of his recognizance, and eight convictions staring in youth court and continuing into adult court for failing to attend court. [ 47 ] Toews was supervised by the same probation officer, Mr. Calvin Stangier, from Mar 26, 1998 until February 2008, during which time Toews was 13 to 23 years of age.

Stangier gave evidence at the hearing, and stated that Toews was usually polite and cooperative during office interviews, but he didn't follow Stangier's advice and always had problems complying with the terms of his probation in the community. [ 48 ] Toews was 14 at the time of his July 1998 convictions for failing to comply with youth court sentences which were initiated by Stangier because Toews failed to live at an approved residence, obey house rules at his mother's house, including a curfew and requirement to follow directions, and Toews failed to apply himself at school by refusing to do his school work.

During a period of probationary supervision Toews was verbally abusive towards his mother and as a result in 1999 Toews was placed in a Youth Shelter and then a foster home, and although Stangier reported that Toews mother was not easy to live with, Toews' behavior was a contributing factor to him not being able to live at home.

In September 1999, when Toews was 15, his foster mother reported to Stangier that Toews was defiant, refused to do school work, threatened to kill or break the necks of younger children in the foster home, and was uncontrollable because he did as he pleased. [ 49 ] In April 2002, a few months before Toews turned 18, when Stangier met with Toews, Toews was dishonest and tried to intimidate Stangier by staring him down.

Toews' May 2002 conviction for failing to comply with a Youth Court sentence was as a result of his failure to pay the compensation ordered to the victim of his July 2001 conviction for theft and mischief. Further in May 2002 Toews failed to comply with Stangier's direction to take anger management counselling, because the psychologist terminated the anger management counselling after Toews stole a cheque from the psychologist and made it payable to himself and then cashed it.

In December 2002 Stangier completed a report which stated that Toews' response to probation was absolutely horrible and that probation was not working because Toews' response to supervision had become more defiant and Toews had failed to have the required contact with his probation officer for 6 months by that time. [ 50 ] In May 2003 Toews failed to comply with probation by again failing to report and also by failing to reside at an approved residence.

In November 2004 when Toews was 20, Stangier reported that probation was completely unsuccessful and had no impact or influence on Toews because Toews had no respect for the justice system. Stangier's overall

summary of his time supervising Toews was marked as Exhibit S-12, and stated Toews refused to comply with Court orders the majority of the time, that he did not benefit from probation as he continued to commit new offences while on probation and that his lack of compliance while on probation was often negligent and defiant. (

b) SAFPC Records and other information gathered at SAFPC (i) 2009 Psychological Testing [ 51 ] Toews was interviewed by Registered Psychologist, Denna Nessman, on two occasions in late 2009, as part of his first SAFPC assessment. Toews talked about his current girlfriend, saying that the relationship was difficult, said he no longer wanted to date her, blamed most of his legal difficulties on her, and then said " if she was a guy I would fuckin' beat her up for sure." Toews claimed that he had been diagnosed as having bi-polar disorder and split personality disorder when he was a "baby".

He also reported hallucinations in which dead relatives communicated with him, although the staff did not make any observations could be associated with same. Toews was angry, agitated and frustrated, but refrained from any physical outbursts. He described having blackouts, and anger issues. While on the unit for this assessment, Toews apparently spent a great deal of time telling the staff that he should be found not fit

to stand trial because of his mental issues. [ 52 ] Nessman's testing, set out in her December 3, 2009 report found in Exhibit S-5, Volume 1, pages 66-71 revealed the following: 1. Toews' testing put him in the Extremely Low level of intellectual functioning, with a Grade 5.4 word reading level and a Grade 5.3 sentence comprehension level; 2. Personality testing was invalid due to Toews over reporting of psychiatric symptoms; 3. Toews met the criteria for Antisocial Personality Disorder (ASPD).

According to Nessman, who was qualified at the hearing as an expert in psychology and psychological testing, persons with ASPD have trouble abiding by normal standards of restraint, and characteristically display impulsivity, irritability/aggressiveness, disregard for the safety of others, financial irresponsibility and lack of remorse.

Nessman specifically noted Toews’ "consistent inability to take responsibility for any difficult aspect of his life", including his current legal problems, anger issues and relationship problems, and his excessive blame of others and lack of insight. (ii) 2011 Psychological Assessment [ 53 ] Dr. Baronett was qualified as an expert in forensic psychology for the purpose of giving evidence at the hearing. Dr.

Baronett's Psychological Assessment of Toews, dated May 20, 2011 was marked as Exhibit S-23, and that Psychological Assessment was part of Toews overall dangerous offender assessment that was conducted at SAFPC. Baronett's letter setting out the results of her PCL-R2 testing of Toews' was marked as Exhibit S-24. [ 54 ] Baronett had 2 personal interviews with Toews in May 2011. During the first interview Toews was polite and compliant. He denied being in Red Deer at the time of the index offence.

At the beginning of the second interview Toews was polite but frustrated and impatient, but his agitation increased upon Baronett's questioning and caused the interview to be terminated after 20 minutes. [ 55 ] Baronett used the PCL-R2 instrument to assess Toews for psychopathy. Baronett described psychopathy as basically the remorseless, jealous, and exploitive use of others for one's own personal pleasure without any concern about the impact on the victim. The PCL-R instrument is the North American standard measure for psychopathy and the PCL-R2 is the second edition of that instrument.

A score of 30 on the PCL-R2 is the research cut-off score to be considered a psychopath, meaning that if the subject is given a score of 30 or more, the subject is considered a psychopath. In clinical practice, practitioners use a cut-off of 33 to allow for a 3 point margin of error, meaning that if the subject is given a score of 33 or more, the subject is considered a psychopath. Baronett stated that a very low IQ does not confound or affect the reliability of a PCL-R2 score, because the PCL-R2 assesses personality and cognitive functioning is not a variable that defines psychopathy.

Baronett gave evidence that the more the scorer has seen the subject or knows about the subject, the more accurate the score. In fact, Baronett stated that it is recommended that 2 separate scorers do independent scoring of a subject.

Baronett acknowledged that a PCL-R2 scoring can be done without an interview with the subject, based upon file information alone, if the file information is sufficient, but it's not the best practice. [ 56 ] Prior to scoring the PCL-R2, and in addition to her personal interviews with Toews, Baronett reviewed the social worker's report on the SAFPC file, and reviewed material provided by the Crown and a probation report from the Solicitor General. Baronett initially scored Toews at 34 on the PCL-R2. After Dr.

Xie discussed one scoring item with her, Baronett lowered Toews' score down to 33 as reflected in her September 7, 2001 letter marked as Exhibit S-24. However, in her oral evidence Baronett stated that in retrospect she would maintain her original score of 34 for Toews, which suggests that Toews is a psychopath. [ 57 ] Baronett did not re-administer the cognitive measures done by Denna Nessman during Toews first stay at SAFPC and merely reported Nessman's findings.

In 2011 when Baronett assessed Toews for risk of violent recidivism using the HCR-20 instrument, Toews score placed him as a very high risk to use violence towards another person in the future. Factors which impacted the scoring on the

HCR-20 included: Historical factors include: 1. History of previous violence, 2. Young age at first violent incident 3. Relationship instabilities 4. Employment problems 5. Substance abuse problems 6. Early maladjustment 7. Mixed personality disorder with antisocial and narcissistic personality traits 8. Prior supervision failure Clinical items include: 1. Lack of insight 2. Negative attitudes 3. Impulsivity 4. Extremely low intellectual functioning 5. Limited response to treatment, especially with respect to anger management Risk management items include: 1. Exposure to destabilizers 2. Limited personal support 3. General stress upon eventual release

[ 58 ] Baronett assessed Toews risk of sexual recidivism using two instruments, the Static-99 and the SVR-20. Baronett's Psychological Assessment (S-23) reports that Toews obtained a score of 5 on the Static-99, placing him in the Moderate to High risk category for being charged or convicted of a new sexual offence. Offenders with that same score have been found to sexually re-offend at a rate of 11.4% in 5 years. In her oral evidence Baronett stated that she recently re-scored Toews' SVR-20 and saw an error made on her previous scoring.

Toews obtained a score of 6 on her re-score, and offenders with a score of 6 have been found to sexually re-offend at a rate of 14% in 5 years.

Barronett's assessment of Toews using the SVR-20 resulted in a finding that 13 factors placed him "at a moderate risk of being charged or convicted of a future sexual offence." [ 59 ] Baronett stated that in her experience, other than jail, the only place where 24 hour supervision of offenders is provided is in a psychiatric hospital that houses offenders found to be NCR (not criminal responsible), but long-term offenders would not be eligible for full-time admission at any of these facilities.

Long-term offenders would only be eligible for housing at an NCR facility on a temporary basis due to mental health instability issues, but once those issues were stabilized, the long-term offender would be discharged to their regular "residence". [ 60 ] Baronett made several recommendations at the end of her assessment, including: 1. Long term, intensive anger management programming.

On this point Baronett gave evidence that while the prevailing view about psychopathy is that there is no treatment that works, in recent years there have been some cases where psychopaths can learn specific skills, like anger management, which can lower the risk of recidivism. As such anger management programming at worst would have no effect but at best would lower the risk of recidivism. However, Toews' very low IQ will make it more challenging for him to learn any skills, and he may need to repeat programming or have extra one-on-one treatment; 2.

Upon release into the community, long-term, intensive high-risk supervision, with immediate incarceration for failure to comply with court orders; 3. Substance abuse programming; 4. Sexual offender programming, given his denial of involvement in the index offence, despite DNA evidence; and 5.

Psychiatric follow-up. [ 61 ] However, Baronett noted in the last paragraph of her assessment: "Given Jesse's limited cognitive functioning and temperamental characteristics, his ability to benefit from traditional forms of treatment that are insight oriented or based on traditional values such as developing empathy for victims will be limited and prognosis is guarded." (iii) SAFPC File Information [ 62 ] Social worker, Sandra Smiley-Rudy took a history from Toews upon his first admission to SAFPC in late 2009.

Toews reported to Smiley-Rudy that he became emotionally aroused by watching fighting on television and in video games making him want to fight. Toews also professed an interest in attending long-term residential substance abuse treatment upon release from custody and he met with an AADAC counselor on site at SAFPC. Smiley-Rudy reported that Toews downplayed the charges he was facing when speaking with her and justified them as occurring during blackouts and placing blame on his girlfriend. [ 63 ] Addictions Counselor, Anita Schwan, met with Toews during both his admissions to SAFPC at Toews’ request.

In 2009 she did an initial substance abuse assessment of Toews and he attended one group meeting. In 2011 she did another initial assessment, after which Toews attended one individual counselling session and 2 group meetings. She confirmed that in 2009 Toews expressed a desire to attend residential treatment upon his release from custody. In 2011 she reported that Toews told her that he has a hard time saying no to

people with respect to drug use and that if he has money, it is a trigger for relapse into drug use. [ 64 ] A number of nurses who worked with Toews during his 2011 stay at SAFPC gave evidence at the hearing of their observations of him and when giving their evidence they were referred to Exhibit S-5 which contained their nursing notes. For the most part they all described periods of anger, agitation and child-like tantrum behavior over things such the arrival of his canteen money, other patients talking about him, and a psychologist interviewing his girlfriend.

During Toews' 2009 stay at SAFPC he was not tolerable of unit procedures which caused frequent outbursts of anger with swearing and pacing. During his 2011 SAFPC stay, he was reported to be going to multiple staff members with different complainants, none of which were congruent with his behavior. He was reported to tell a nurse, in agitation over other patients talking about him, that he wanted to hit other patients and if he did it would be the staff's fault.

He was reported to tell another nurse that he did not want to be a dangerous offender, and if he was made a dangerous offender, he would hurt people and he didn't care who they were. He was reported to tell another nurse that it was more difficult for him to control his anger when he was not in jail, but he was trying to control his behavior in SAFPC based upon his lawyer advice to be more calm during this second Assessment at SAFPC because bad behaviour would have a negative effect on his dangerous offender hearing.

He was reported to tell a nurse that he was not even in Red Deer at the time of the index offence so he didn't know how his DNA could have gotten there and he downplayed his criminal history staying there were worse guys than him.

He was reported to tell another nurse, who found Toews behavior generally good, that he still had temper tantrums as an adult and further that if he was found to be a dangerous offender he would kill himself, and that nurse stated that he said it in such a matter of fact way that she thought that he meant it. [ 65 ] The Crown referred the Court to numerous items in Toews SAFPC records which were contained in the two volumes of Exhibit S-5, and those references are listed in Exhibit S-28.

The references in the materials from 2009 demonstrate that during that admission Toews was very agitated, had swearing outbursts, made threats of violence to other inmates including talk of killing someone, and described a number of past incidents involving him inflicting violence on both persons and things. The references in these materials from 2011 show Toews anger and temper tantrums were still present. Toews was reported to minimize the issue of him killing the kitten by saying that the kitten was not his girlfriend's kitten anyway.

During his 2011 stay Toews reported on more than one occasion that he would kill himself if he is found to be a dangerous offender. It was also reported that he made several less serious threats to others. (

c) Solicitor General Records and other criminal justice system information (

i) Dr. Dabrowsky [ 66 ] In September 2009 a few weeks after Toews' arrest for the index offence, Dr. Dabrowski, the Senior Psychologist at Edmonton Remand Centre dealt with Toews, who admitted to her that he was manipulating his placement onto a mental health unit instead of a regular inmate unit at Edmonton Remand by claiming that he was suicidal. Dabrowsky also noted that Toews was agitated and anxious to be transferred to Alberta Hospital Edmonton for his fitness to stand trial assessment. (ii) Dr. Handley [ 67 ] Although the Crown conducted a voir dire for the purpose of having Dr.

Handley qualified as an expert witness, the Crown sought no opinion evidence from Dr. Handley. Dr. Handley, a private clinical psychologist, also provided psychological services to inmates at Red Deer Remand Centre, and in the course of that work consulted with Toews during a number of his stays at Red Deer Remand. In February 2003 Toews was sad and morose and didn't accept blame or responsibility for his actions. In August 2005 Toews was put on suicide watch after becoming upset over a phone call he had with his mother. In November 2005 Toews asked to see a psychiatrist for medication.

In August 2009 Toews, who was claiming to be bi-polar, was angry, frustrated and threatening himself and other inmates so he was put into security clothing. Handley saw Toews four times in February 2010 as a result of Toews requesting interviews to see a psychiatrist and obtain medication. (iii) Corrections Officer Johnstone [ 68 ] This Red Deer Remand corrections officer has had significant dealings with Toews since Toews’ arrival at Red Deer Remand in August 2009.

[ 69 ] Johnstone confirmed Solicitor General records which showed that in September 2010 Toews was found guilty of assaulting another inmate in internal disciplinary court and given 5 days disciplinary segregation. Johnstone observed Toews loose his temper with another inmate during a volleyball game in the gym causing everyone to have to go back to their unit, and Johnstone said he found Toews more "ramped up" than other inmates.

Johnstone has heard Toews saying threatening things to other inmates, and Johnstone noted that Toews has a tendency not to back down so Johnstone has tried to intervene when he has noticed that Toews anxiety level is up. As Toews’ time in custody has gone on, when Toews' anxiety level is high, Toews stays in his cell and avoids other inmates until he is in a better mood.

Over the past three years Johnstone has noticed a general improvement in Toews' behavior, saying that Toews has gotten easier to deal with and he referred to Toews' current behaviour as a "model prisoner". (iv) Solicitor General's records from past sentences [ 70 ] Records from Toews' sentences, including probation and period of incarceration are contained in the three binders of Solicitor's General records marked as Exhibit S-6. The Crown made specific reference to certain notations in the Solicitor General records, and those specific references are listed in Exhibit S-28.

These specific references are, for the most part, in respect of reports of incidences of Toews' anger, agitation, and belligerence observed by those supervising him during custodial sentences. The references also identify reports of a number of threats made by Toews during his previous custodial sentences and his conflict with other inmates including fighting with another inmate with mental health issues and pleading guilty to internal disciplinary charge involving attempt to injure another inmate by applying Vaseline on a stairway.

The references also show that in 2007 Toews served 14 days in segregation for an altercation with another inmate, and in 2010 he was written up three times for picking fights with smaller inmates or altercations with other inmates. The references also demonstrate that between Dec 31, 2005 and September 2010 Toews sought many interviews with staff to request medication or complain about his medication. (

v) Corrections Services Canada and Long-Term Supervision Orders [ 71 ] The Crown entered as Exhibit S-16 a printout of the Corrections Services Canada Judicial Education CD-ROM titled CSC and Long Term Supervision Orders. That document provides information about what Corrections Services Canada provides to inmates subject to long-term supervision orders, including: 1.

At warrant expiry an offender on a long-term sentence order will be released into the community, to start long-term supervision regardless of progress, institutional behaviour or demonstrated reduction of risk; 2. 24-hour supervision is not provided to offenders conditionally released on a Long Term Supervision Order; 3. The vast majority of Programming for inmates including programming for Violence Prevention, Family Violence, Substance Abuse and Living Skills is offered by way of a few individual sessions followed by many more group session or by group sessions alone; and 4.

Parole officers meet with offenders on conditional release a maximum of 8 times per month. (

d) Dr. Xie's 752.1 Assessment [ 72 ] Dr. Xie, who provided two different assessments of Toews, was qualified as an expert in forensic psychiatry for the purpose of giving evidence at the hearing. In 2009 Xie oversaw Toews fitness to stand trial assessment at SAFPC, in the months immediately after his arrest. Dr. Xie also oversaw and prepared the s. 752.1 dangerous offender assessment, the updated version of which was marked as Exhibit S-2. Xie's supplemental letter dated July 25, 2011 was marked as Exhibit S-3. [ 73 ] On page 9 of Xie's discharge

summary found in Exhibit S-5, Vol #2, page 630 she describes a comment made by Toews regarding a previous jail sentence:

Mr. Toews blames parole officers for not providing him with the half-way house to support his reintegration into society. Mr. Toews had been turned down by the National Parole Board for parole and had served his entire sentence up to warrant expiry. Having said the above, Mr. Toews was provided a significant amount of supports and though he was living at home with family members, his basic needs were provided for, and a curfew was well as 17 other peace bond conditions to help structure his behaviour was initiated through a

section 810. Mr. Toews felt these conditions were unfairly placed on him after warrant expiry date and were not helpful. [ 74 ] Two things are of noteworthy with respect to Xie's oral evidence at the hearing: 1. Xie also admitted that she was not able to spend enough time with Toews at the very end of the DO assessment, because when she arrived at SAFPC to do her final interview with him on Friday, June 3, 2011, she found he had been transported to Red Deer for his June 6th Court appearance. Her planned final interview never occurred but she said this did not affect her assessment; and 2.

Xie became visibility emotional at one point during her evidence at the hearing, when she was describing Toews' history and tragic childhood. [ 75 ] In her assessment Xie provided a 9 page personal history of Toews' in the areas of family and social history, behavioral difficulties, education, employment, physical and mental health, relationships and criminal history and Mental Health, all of the information for which was collected by the team of professionals at SAFPC. Xie also made reference to the index offence of aggregated sexual assault. [ 76 ] The Assessment portion

section of S-2 begins at page 12 of the report, and in that

section Xie notes that Toews did not take any responsibility for previous behaviors and blamed other people around him for his ongoing difficulties over the years. He showed limited insight about his anger and the impact of his demeanor on relationships with others. His insight and judgment were poor. [ 77 ] In her oral evidence, Xie stated that in 2011 she told Toews not to "screw up" with behavioural issues at SAFPC this time for two reasons: first, it would imperil his personal safety; and second, because he was there for a very important assessment.

In her assessment, Xie described Toews presentation while at SAFPC in 2011 as follows: Whilst on the forensic unit Mr. Jesse Toews presented with a labile mood. He became easily agitated and irritable. He often expressed annoyance to unit rules and routines. He could rapidly become entitled, agitated, irritable and sarcastic in his interactions with others. Verbal outbursts with profanities occurred every few days over trivial things like pieces of a puzzle missing, workshop being cancelled, nature of activities not being to his liking, money not being transferred fast enough etc.

On one occasion, he became visibly stressed out and very upset because a co-patient was allegedly telling others what Jesse had been found guilty of. He expressed fear for his safety and he began threatening to "blow" more often. He tended to blame the judicial system for having released him without appropriate support in the community. He had been walking around the unit with an angry attitude for about two days, saying to staff members that if he had been at the Remand centre he would have smashed the co-patient into the ground.

During the interview with the psychologist, he was complaining about various things and used profanities. He became extremely aggressive and was swearing upon being asked questions by a psychologist. He became more cooperative on the last two weeks. [ 78 ] Xie reported that Toews became more cooperative in the last two weeks of his stay, that he was treated with antipsychotic medication for behavioural control and that he met with an AADAC outreach worker and expressed interest in attending group sessions.

[ 79 ] In her assessment Xie noted: (

a) Nessman's cognitive testing findings as reviewed in Baronett's Psychological Assessment and which stated that diagnostic impressions are consistent with polysubstance dependence (in remission), antisocial personality disorder, narcissistic personality traits, and extremely low intellectual functioning. (

b) Baronett's findings with respect to the risk assessments conducted on Toews, using the HCR-20, Static-99-R and SVR-20. On the issue of risk assessment Xie restated the factors Baronett identified as factors which increase Toews’ risk for future recidivism.

On the issue of risk, Xie reported in her assessment that Toews has four positive factors lowering his risks of future recidivism, which include: 1. lack of evidence of major mental illness 2. lack of active symptoms of major mental illness 3. the evidence of some feasible plans 4. the evidence that he was somewhat compliant with remediation attempts. [ 80 ] In Xie's Conclusions and Recommendations, starting at page 16 of S-2, it is noted that while Toews does not suffer from any acute major mental disturbance, his DSM IV primary diagnoses included: 1. Polysubstance Abuse (with cocaine, alcohol and cannabis); 2.

Mixed Personality Disorder with Antisocial and Borderline Features and Borderline Intellectual Functioning; and 3. Stressors related to cognitive deficit, financial and legal difficulties. [ 81 ] Dr. Xie concluded that Toews has a chronic maladaptive pattern of functioning identified as mixed personality disorder.

The antisocial personality disorder features of his personality are evidenced in "a pervasive pattern of disregard for, and the violation of the rights of others as indicated by a failure to conform to social norms with respect to lawful behaviors, impulsivity, irritability, aggressiveness, and disregard for the safety of self or others." The features of his personality consistent with borderline personality disorder are evidenced in:

a pervasive pattern of instability of interpersonal relationships, self image and affect as indicated by a pattern of unstable and intense interpersonal relationships characterized by alternating between extremes of idealization and devaluation, identity disturbance with an unstable sense of self, impulsivity in at least two areas that are potentially self damaging, affective instability due to a marked reactivity of mood, inappropriate intense anger or difficulty controlling anger, and transient stress related paranoid ideations. Psychological consultation on this assessment revealed a borderline intelligence.

Given his limited cognitive capacity and temperamental characteristics, Mr. Jesse Toews may not benefit a lot from standardized group therapy. Traditional forms of therapy that are based on principles such as developing empathy and moral conduct are not likely to have a positive effect on him. Because of low cognitive functioning, he is also not likely to benefit from insight oriented programs. External forms of control such as incarceration and a high risk supervision program when he is released in the community are more likely to be helpful. Mr.

Toews may be receptive to learning strategies for anger control during incarceration. The desire to remain safe in custody should encourage him to control his temper while providing a motivation to learn how his behavior and presentation affect his interpersonal relationships with fellow inmates. He may benefit more from tailored psychotherapy and ongoing psychiatric support to stabilize his mood and control his anger. From a psychosocial perspective, Mr.

Jesse Toews has experienced a history of family dysfunction, abandonment, and the modelling of conflictual, violent relationships, along with cognitive deficits, inadequate self-regulatory capacity, substance abuse, academic difficulties and vocational instability. These experiences have been predisposing factors in his antisocial behaviour. Substance abuse certainly exacerbated his temperamental characteristics such as poor anger control, impulsivity, sense of entitlement and low tolerance to frustration to predispose him to violence and repeated involvement with the legal system. Mr.

Toews displays significant anger management problems, and has a tendency to distrust and attribute malicious intention to others. He is also noted to have significant difficulties in coping with daily stressors, and he has a propensity to react in impulsive angry outbursts especially when he feels provoked or overwhelmed. Based on historical information, his displays of violence appear to be more affective and opportunistic than predatory. Mr. Toews has responded poorly to supervision over a 10 year period, simply refusing to obey court orders.

He lacks insight, does not accept responsibility for his actions, and blames others for his illegal activities. He also lacks moral standards of behavior and disregards the safety and rights of others. Mr. Jesse Toews has shown a pattern of repetitive criminal behaviors. His violence appears to have escalated in severity in relation to his previous offenses. However, there does not appear to be any pattern of sexual deviant behaviour in this case. There is no evidence of significant sexual deviancy as a motive in his index offence.

The current index offense appears to be a reflection of his inability to cope in the community, his anger management difficulties, and his all or none thinking. Mr. Jesse Toews impresses as having poor insight into his legal difficulties. He shows limited judgment in terms of his description of plans for the future. He has not acknowledged involvement in the matter before the court and can be reactionary when possible outcomes are presented to him. In addition, Mr. Toews lacks the empathy or capacity to experience emotions such as remorse or guilt.

His capacity for change is significantly limited due to lack of insight, cognitive deficits and above temperamental characteristics. Even on our assessment unit, where Jesse was medicated to help reduce irritability and is encouraged on an ongoing basis by nursing staff, verbal outbursts, use of profanities, threats of losing control and being close to "blow" occurred on several occasions. During this admission, Mr. Toews has been treated with antipsychotic medication Seroquel 200 mg a day. The treatment was somewhat effective in controlling his anger and inhibit his violent outbursts.

Observation on the forensic unit has confirmed his effort in participating in some unit activities that may be beneficial to his developing coping strategies. Mr. Toews responded well to antipsychotic medications in reducing his irritability and controlling his anger. Successful medication treatment would suggest an increase in likelihood of his manageability in the community.

If he is able to improve from further programming with respect to anger management, stress management, and coping skills in a .structured environment, there would be a reasonable possibility of eventual controls of his behaviour in the community.

Psychiatric factors in the determination of Dangerous Offender/Long Term Offender status under the criminal code mandate an assessment of the impact of possible treatment in the community on risk for future re-offending. Risk assessment has been completed. As indicated above, Mr. Toews is deemed a very high risk for general violent recidivism (based on the HCR-20) and a moderate risk for sexual violence in the near future (based on Static-99-R and SVR). In considering the criteria for long term offender, it is my medical opinion that Mr.

Jesse Toews is at a substantial risk to reoffend for the above reasons and that there is a reasonable possibility of eventual controls of risk in the community. He would likely benefit considerably from the prolonged structured treatment available under the Long Term Offender status. It is my respectful submission, that Mr. Jesse Toews does not meet the medical criteria for Dangerous Offender in that it is likely that the risk of future offending can be lowered considerably with the imposition of an appropriate structure in the community to provide supervision and treatment. [ 82 ] Dr.

Xie further concluded that: (

a) Toews "lacks the empathy or capacity to experience emotions such as remorse or guilt. His capacity for change is significantly limited due to lack of insight, cognitive deficits and above temperamental characteristics." (

b) If Toews improves from anger and stress management programming and is able to learn coping skills in a structured environment, then there would be a reasonable possibility of controlling his behaviour in the community, and Xie then went on to make essentially the same recommendations made by Dr. Baronett, although Xie included additional treatment programming and the absolute need for Toews to receive PDD/AISH funding; and (c) "Given Mr.

Toews long-standing difficulties, limited intellectual functioning and poor insight, his prognosis remains extremely guarded." [ 83 ] Xie supplemented her assessment (S-2) with her supplemental letter marked as Exhibit S-3 in which she stated: ∙ To a very high extent Mr. Toews poses a significant threat to the public (lives, safety, physical or mental well-being) ∙ To a very high extent Mr.

Toews has demonstrated a behavioural disturbance involving harm to others, often out of rage due to lack of coping skills, cognitive deficit and being under the influence of substances. ∙ Given his limited cognitive functioning and personality characteristics, Mr. Toews has shown indifference to the consequences of his behaviour on others.

In addition, he may not be able to foresee what normal people can foresee, particularly when he is extremely angry. ∙ Due to limited cognitive functioning and personality characteristics, his behaviour is unlikely to be inhibited by normal standards of behavioural restraint unless successful treatment and close follow up is in place in the future. ∙ There has been no evidence suggesting Mr. Toews' having a sexual deviancy or other forms of sexual violence. He has not shown a pattern of failure to control his sexual impulses and casing harm to others except for the index offense.

∙ Based on historical information, his patters of violent behaviour have been more reactive than predatory in nature and, although relatively frequent over the years, were not comparable in nature and severity to the level of violence of the aggravated sexual assault offense. The index offense is so brutal and hard to understand given the fact that Mr. Toews had had no conflict with the victim prior to the assault. Mr. Toews remains in denial of any involvement in the index offense despite DNA evidence. ∙ In my opinion, there is a reasonable possibility of eventually controlling the risk Mr.

Toews poses in the community. To my knowledge, Mr. Jesse Toews has never received or availed himself of long-term, intensive anger management programming such as those provided in correctional settings. He may be receptive to learning strategies for anger control during incarceration, if at all to increase the likelihood of personal safety while incarcerated and his chances for early release.

Upon release to the community, a long-term intensive high risk supervision program would be helpful to address his residential, financial, vocational, and time management needs, all with the ultimate goals of encouraging pro-social behaviour and minimizing the risk of violent recidivism. Until all the measures have been tried and failed, I don't have evidence to suggest that his risk cannot be reduced to an acceptable level in the future. ∙ With regard to risk management, I have made detailed recommendations in my previous report. Mr. Jesse Toews is willing to take antipsychotic medications to control his anger.

He should learn anger management and coping skills via individual counselling and group therapy. Mr. Toews has expressed an interest in participating in addiction treatment program and relapse prevention programs. Because substance abuse has contributed to decreasing his behavioral controls and increasing his violent tendencies, Mr. Toews should abstain from substances including cannabis, cocaine, alcohol and oxycontin. His ability to abstain from alcohol and other drugs should be monitored on an ongoing basis via blood tests and urine drug screening in the community.

Based on the legal files, the consequences for his breaching court orders in the past have generally been minimal. Ongoing monitoring of his ability to abide by court imposed conditions will need to be strictly enforced. Provisions are imperative for immediate incarceration in the event of failure to comply with court orders. ∙ In conclusion, Mr.

Jesse Toews does not meet the criteria for Dangerous Offender status in that it is likely that the risk of future offending can be lowered considerably with the imposition of an appropriate structure in the community to provide close supervision and treatment. [ 84 ] In her supplemental letter Xie also provided the opinion that Toews did not pass the threshold of 30 points to be a Psychopath and that she would ask psychologist Dr.

Anne-Marie Baronet to do a formal psychopathy assessment. [ 85 ] In her oral evidence, Xie stated that Toews has psychopathic traits because he had antisocial personality disorder, but all persons with antisocial personality disorder are not psychopaths. Xie's described psychopaths as: …careless people. You know, those people are superficial people. They display the phenomenon of lack for remorse, lack for empathy, lack of guilt for their actions that hurt others. They are kind of impulsive. They are grandiose. They are self-centered. They do whatever they want to get their own benefits.

So most often their crimes are instrumental; like is a planned, calculated. You know, they do things, but they could be very impulsive. Even thought they had a goal to reach, they know the consequences, they will do it. So basically they choose to do better things to benefit themselves. [ 86 ] Xie stated that her gut feeling was that Toews was not a psychopath even though he xhibits psychopathic traits. Xie stated that the 30 cut-off for psychopathy in the PCL-R2 instrument would not apply to Toews because of his very low IQ which amounts to mild

retardation. Xie likened Toews with her patients who had Pervasive Development Disorder (PDD) who can be managed with medication and treatment. Xie stated that she doesn't think Toews is dumb and useless and should be locked up forever, and she thinks there is hope for Toews because even with his very low IQ he still has relationship skills as evidenced by the number of romantic partners he has had and the number of people who permitted him to stay with them. [ 87 ] In her oral evidence, Xie expanded on the therapy she recommends for Toews, including: (

a) the need for one-on-one therapy (weekly or bi-weekly) for coping skills; (

b) group therapy will be a failure for Toews because his very low IQ will prevent him from participating in and achieving a benefit from group therapy; (

c) Toews may succeed, based u

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