R v Paxton, 2013 ABQB 750

Court of Queen ’ s Bench of Alberta Citation: R v Paxton, 2013 ABQB 750 Date: 20131219 Docket: 110017514Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Dustin Ward Paxton Offender Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4. By Court Order, information that may identify the complainant must not be published, broadcast, or transmitted in any manner. NOTE: This judgment is intended to comply with the restriction so that it may be published. _ ________________________________________ ______________ Reasons for Judgment of the Honourable Madam Justice S.L. Martin _________________________________________ ______________ 1. INTRODUCTION [ 1 ] After a trial involving 43 witnesses and extensive medical documentation, Mr.

Paxton was found guilty of aggravated assault contrary to s 268 and sexual assault contrary to s 271 of the Criminal Code RSC 1985 c C-46 (the “ Criminal Code ”), for conduct directed towards D.L. between October 31, 2008 and April 16, 2010 that occurred in Calgary, Alberta and Regina, Saskatchewan. D.L. was his business partner and sufficiently close that they spoke of each other as best friends, like blood. Mr. Paxton subjected D.L. to various forms of serious assaults over the eighteen months covered in the Indictment and eventually dropped him off at a Regina hospital in critical condition.

D.L. suffered extensive physical and psychological injuries and will likely never recover from the sustained violence

he experienced at Mr. Paxton’s hands. [ 2 ] Mr. Paxton was also found guilty of assault with a weapon contrary to s 267(

a) of the Criminal Code and uttering threats of death or bodily harm contrary to s 264.1(1)(

a) of the Criminal Code in respect of Mr. Abraham Chutta, between March 1, 2009 and August 12, 2009 in Calgary. At the time of those offences, Mr. Chutta was 19 years old and was Mr. Paxton’s tenant; he worked for the moving company Mr. Paxton and D.L. started. [ 3 ] Based on these convictions the Crown applied to have Mr. Paxton declared a dangerous offender and is seeking an indeterminate sentence. The Defence agreed that the Crown has satisfied the various statutory requirements to make such an Application.

The Crown has filed the required notice, provided the consent of the Attorney General and has filed an assessment report. All requisite formalities have therefore been satisfied. What divides the parties is whether or not Mr. Paxton qualifies as either a dangerous offender or a long-term offender and what would be a fitting sentence in the circumstances. [ 4 ] The Crown’s primary Application is to have Mr. Paxton declared a dangerous offender and subject to an indeterminate prison sentence. The Crown argued that Mr. Paxton meets all of the three statutory criteria for such a declaration. They argued Mr.

Paxton must be declared a dangerous offender and there is insufficient evidence to rebut the presumption of an indeterminate sentence. In the alternative, the Crown argued that Mr. Paxton qualifies as a long-term offender, and asked for a determinate sentence of 15-18 years and a long-term supervision Order with severe conditions to last for 10 years. [ 5 ] The Defence argued that the dangerous offender legislation is intended to capture only the worst offenders at the extreme end of the spectrum of criminality, and as such, should be applied cautiously. It was argued that Mr.

Paxton is not, comparatively, at that far end of the spectrum. The Defence denied that any of the statutory criteria were met for a dangerous offender declaration. The Defence seemed to argue, even concede, that Mr. Paxton qualified as a long-term offender based on the shared conclusion by all three experts that Mr. Paxton was at a high risk of reoffending with respect to violent crimes and their differently worded statements, which the Defence reads as supporting the proposition that under certain conditions there either was or could be a reasonable possibility of controlling Mr.

Paxton in the community. [ 6 ] The Defence argued that a fit sentence for all convictions would be in the six to eight year range. The Defence sought a 3 for 1 credit for time served by Mr. Paxton as Mr. Paxton has been in solitary confinement during his time at the Calgary Remand Centre: meaning the Defence is requesting a time served sentence. 2. PAST AND PRESENT STATUTORY FRAMEWORK: 2008 AMENDMENTS TO

PART XXIV OF THE CRIMINAL CODE AND THE NEW DANGEROUS OFFENDER REGIME [ 7 ] The dangerous and long-term offender provisions currently exist as part of the sentencing regime in

Part XXIV of the Criminal Code . First introduced in 1947 as a regime of Preventative Detention that applied to dangerous sexual offenders and habitual criminals, these provisions have been amended many times over the years. The focus has shifted from past criminal conduct to the threat of harm to others. The most recent amendments occurred in 2008 and it is these new provisions that govern the case at bar as the predicate offences were committed by Mr. Paxton in 2009 and 2010. [ 8 ] The parties provided the Court with extensive case law dealing with the dangerous offender and long-term offender provisions.

It is important to understand the significant changes made in 2008 to appreciate what the current regime now requires and to appreciate how some of these authorities may have reduced relevance or application. [ 9 ] Prior to the 2008 amendments the dangerous offender provision in s 753 read: 753.

(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), 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 s 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing (

i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or (iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; or (

b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (

b) of the definition of that expression in s 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.

(4) If the court finds an offender to be a dangerous offender, it shall impose a sentence of detention in a penitentiary for an indeterminate period. [ 10 ] Thus a sentencing judge at that time considered three questions in deciding whether a person was a dangerous offender:

1. Did the predicate offence include a “serious personal injury offence” as defined in the Criminal Code ? 2. Did the offender constitute a threat to the life, safety or physical and mental well-being of other persons on the basis of the three criteria set out in s 753: being a pattern of repetitive behaviour or a pattern of persistent aggressive behaviour and brutality? 3.

Upon concluding that those first two criteria were met, the sentencing judge had to consider whether he or she should nevertheless exercise the residual discretion given by the word “may” and decline to find the offender a dangerous offender. [ 11 ] Based on this wording, in conjunction with the structure of decision-making it generated, as well as the presence of “may” and the residual discretion on the question of whether the offender should be designated as a dangerous offender, the Supreme Court held in R v Johnson , 2003 SCC 46 , that before making a dangerous offender designation, the sentencing judge was required in particular to consider whether the long-term offender sanctions in s 753.1(1) were sufficient to reduce the threat to the public to an acceptable level.

If a sentencing judge nevertheless determined that the person should be designated as a dangerous offender, the statute required the imposition of an indeterminate sentence. [ 12 ] Currently, the designation of a dangerous offender is governed by a new s 753 of the Criminal Code : 753.

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

a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (

a) of the definition of that expression in s 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing (

i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part , showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or (iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; or (

b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (

b) of the definition of that expression in s 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.

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

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

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

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

(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(

b) or (

c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. [ 13 ] These amendments have retained the same basic three criteria for the designation of a dangerous offender: with two criteria involving a pattern and the third being based on brutality and the risk of future harm.

The case law on the previous s 753 provides continued guidance on how such criteria should be interpreted and applied. [ 14 ] The 2008 amendments, however, have made significant changes to the wording, structure and application of the dangerous offender designation. [ 15 ] First, there is an increase in the pool of predicate offences: R v Wawara , 2011 ABCA 294 at para 6 .

Although it does not apply in this case at bar, s 753(1)(1.1) also provides that if the court is satisfied that the offender committed a primary designated offence and it would be appropriate to impose a sentence of two years or more imprisonment, and the offender had previously been convicted of two primary designated offences and received sentences of at least two years’ imprisonment, that offender is presumed to be a dangerous offender unless the contrary is proved on a balance of probabilities.

Thus, the amendments introduced a rebuttable presumption of dangerousness based on the nature of the predicate and prior offences. [ 16 ] Second, the new wording in s 753(1) was changed from “may” to “shall”, making the finding that an offender is dangerous mandatory once the statutory criteria are established. The threshold discretion has been removed and replaced by a mandatory finding of dangerousness for offenders who meet the terms set out in s 753. [ 17 ] Third, with the 2008 amendments, any judicial discretion is shifted to the sentencing stage, and arises when determining what

the appropriate sentence would be for a person who has already been found to be a dangerous offender. In contrast, under the previousregime an indeterminate sentence was mandatory when an offender was declared dangerous. Currently, there are three possible sentenceswhen an individual is declared a dangerous offender.

First, the court may impose an indeterminate sentence; second, the court mayimpose a determinate sentence coupled with a long-term supervision Order; and third, a court may impose a determinate sentence. [18] Fourth, this discretion is limited by the newly added s 753(4.1) which creates a statutory presumption that an indeterminatesentence shall be imposed unless the court is “satisfied by the evidence adduced during the hearing of the application that there is areasonable expectation that a lesser measure… will adequately protect the public against the commission by the offender of murder orserious personal injury offence”.

A sentencing judge now has discretion about what sentence is just and appropriate for a particulardangerous offender. [19] In respect of this presumption, these amendments introduced the concept of a “reasonable expectation” that a lesser measurewould adequately protect the public. This wording is different from the wording used under the past and present long-term offenderdesignation.

The long-term offender provisions speak of a “reasonable possibility” that the offender may be controlled in the community.Under previous legislation, as interpreted by the Supreme Court in Johnson, supra, if there was a reasonable possibility that the offendermay be controlled in the community, the offender could not be declared to be a dangerous offender as he or she qualified as a long-termoffender. The two potential designations were treated as being mutually exclusive.

Further, the Supreme Court stated that the existingjudicial discretion to designate as a dangerous offender could only be exercised if there was a finding that there was no lesser measureand no reasonable possibility of control in the community. This is no longer the case. [20] There is now a mandatory designation of dangerousness with the rebuttable presumption of an indeterminate sentence, inaddition to a differently worded test of a “reasonable expectation” that only applies in the context of the dangerous offender provisions.The “reasonable possibility” language applies in the long-term offender provisions.

These cumulative changes and differently wordedstandards also appear to alter the fit or relationship between the dangerous and long-term offender designations. They open up thepossibility that evidence may support a finding that it is a reasonable possibility that the offender may be controlled in the community,but falls short of satisfying a judge that there is a reasonable expectation that a lesser measure would adequately protect the public.

Thisapparent difference between a reasonable possibility and a reasonable expectation means a person who qualifies as a long-term offendermay nevertheless also qualify as a dangerous offender who cannot rebut the presumption of an indeterminate sentence. [21] Thus the 2008 amendments mean that under the current regime a judge shall find an offender to be a dangerous offender if thestatutory criteria are met, and in such a case there is a presumption that an indeterminate sentence is the appropriate sentence.

Thispresumption can be displaced by sufficient evidence, with the result that the judge has the discretion to impose either of the other twoavailable forms of sentence. [22] In R v Ominayak, 2012 ABCA 337, the Alberta Court of Appeal discussed the changes in 2008, noting that that the discretionthat used to exist at the designation stage has been removed. If the offender meets any of the three criteria, he must be found to be adangerous offender. The discretion now exists at the sentencing stage, where the court is able to choose the appropriate sentence for theprotection of the public.

The Court in that case rejected the defence argument that the offender should be able to take the benefit of thenew amendments despite a prior offence date because they allowed for a lesser sentence and summarized the changes as follows at para53: The current Code provisions do not provide for the possibility of a lesser sentence. They only change the place in a sentencing judge’sanalysis where he or she is given the discretion to consider whether an indeterminate sentence will adequately protect the public.

Underthe old regime, a sentencing judge considered this issue after finding that the statutory criteria for making a dangerous offenderdesignation had been met, but before actually making the dangerous offender designation. Under the current regime, this issue isdetermined at the point of sentencing, after the court has found that the accused is a dangerous offender. In the end, the result is thesame.

Indeed, it could be argued that the current regime is stricter than the regime under which the appellant was sentenced because, ifthe statutory conditions are met, the accused remains designated as a dangerous offender, even if the sentencing judge later exercises thediscretion to grant a lesser sentence.

Indeed, when the amending legislation is read as a whole, it appears that the legislative intent of the2008 amendments to the dangerous offender regime was to provide harsher, rather that more favourable, treatment to an offender. [23] With the different dangerous and long-term offender provisions over the years, it becomes very important to understand thestatutory terms of any then-applicable regime when assessing the continued relevance of the various approaches or dicta from caseauthorities. [24] The Defence made two propositions that need to be assessed in light of these new amendments.

First, they rely upon the 1987decision of the Supreme Court in R v Lyons, (SCC), [1987] 2 SCR 309 at 347, which stated that the existing dangerousoffender provisions were “clearly designed to segregate a small group of highly dangerous criminals posing threats to the physical ormental well-being of their victims.” They also cite the 1999 Alberta Court of Appeal in R v Neve, 1999 ABCA 206 at para 58, that theexisting provisions were “designed to protect public safety by targeting that relatively small number of recalcitrant offenders, who,because of past behaviour, can reasonably be expected in the future to present an unacceptable risk to public safety.” [25] As noted by the Alberta Court of Appeal in R v Warawa, supra at para 6, these latest amendments have made the dangerousoffender designation and an indeterminate sentence more easily available.

As the terms of the designation have been widened and thedesignation was made mandatory when the statutory criteria are met, it is clear Parliament intended these provisions to have a widerscope. Thus, while the group may remain small relative to other offenders, it is likely that a greater number of offenders who pose afuture threat to the physical and mental well-being of the public will likely fall within the ambit of the new provision.

These dictanevertheless continue to provide the valuable caution that, even in the presence of particular designations, judicial restraint is animportant guiding principle in all sentencing matters. [26] Second, the Defence argued, relying on Johnson, supra, that this Court was obliged to first consider whether Mr. Paxton was along-term offender before it could declare him to be a dangerous offender. In my view this finding from Johnson no longer governs theorder in which issues are to be addressed after the 2008 amendments. The Supreme Court’s decision that a judge hearing a dangerous

offender application was required to consider the long-term offender designation before the dangerous offender designation was verymuch a product of the wording of the prior provisions, the order in the analysis where judicial discretion was found, and the structure fordecision-making those provisions generated.

The Court in that case considered the language of s 753 and noted that it “indicates that asentencing judge retains a discretion whether to declare an offender dangerous who meets the criteria for that designation”: at para 16.The use of the word “may” as opposed to “shall” in s 753 was found to be significant. The Court stated that “[i]f Parliament had intendedthat an offender must be designated dangerous if each of the statutory criteria have been satisfied, one would have expected Parliament tohave used the word ‘shall’ rather than ‘may’”: at para 16.

This is what Parliament effectively did in 2008. [27] Further, in Johnson the Court reasoned that this discretion was necessary “now that it is clear that offenders declareddangerous must be given an indeterminate sentence”: at para 18. The mandatory indeterminate sentence that came with a dangerousoffender designation was said to require some discretion in order for the provisions to not overshoot their purpose in protecting thepublic: An

interpretation of the dangerous offender provisions that would require a sentencing judge to declare an offender dangerous andsentence him or her to an indeterminate period of detention in each instance in which the statutory criteria for a dangerous offenderdesignation have been satisfied would introduce an unnecessary rigidity into the process and overshoot the public protection purpose ofthe dangerous offender regime: at para 20. [28] Moreover, the Court was of the view that a mandatory dangerous offender designation with a mandatory indeterminatesentence would be contrary to the principles of sentencing found in s 718: A rigid rule that each offender who satisfies the statutory criteria in s 753(1) must be declared dangerous and sentenced to anindeterminate period of detention undermines a sentencing judge’s capacity to fashion a sentence that fits the individual circumstances ofa given case.

Thus, rather than suggesting that a sentencing judge is under an obligation to find an offender dangerous once the statutorycriteria are met, the principles and purposes underlying the Criminal Code’s sentencing provisions actually favour a sentencing judge’sdiscretion whether to declare an offender dangerous who has met the statutory criteria in s 753(1): at para 24. [29] The Court concluded that if the sentencing options under the long-term offender provisions are sufficient to protect the publicto an acceptable level, “the sentencing judge cannot properly declare an offender dangerous and thereupon impose an indeterminatesentence, even if all of the statutory criteria have been satisfied”: at para 40. [30] Given the changes in 2008, this Court must find an offender to be a dangerous offender if the statutory terms are met.

TheCrown’s application is to declare that Mr.

Paxton is a dangerous offender and the present provisions of the Criminal Code require thatthis possible designation be addressed first. [31] It is important, however, to not lose sight of the idea from Johnson that the general principles of sentencing found in s 718 ofthe Criminal Code should have a bearing on the exercise of judicial discretion in determining whether a sentence is fit and appropriate.In my view, this means that after a declaration is made that an offender is a dangerous offender, careful attention needs to be paid to theparticular purposes of the dangerous offender provisions.

These provisions exist as part of the general sentencing principles as well as thegeneral sentencing regime. [32] Jurisprudence over the years has considered the distinctive focus, goals and purpose of dangerous offender legislation, oftenin the context of a constitutional challenge to these provisions.

Even in its earliest forms, the Supreme Court in R v Lyons, supra at para16, found that dangerous offender legislation “clearly pursues the historical purpose of protecting the public”: [I]t cannot be considered a violation of fundamental justice for Parliament to identify those offenders who, in the interests of protectingthe public, ought to be sentenced according to considerations which are not entirely reactive or based on a “just deserts” rationale.

Theimposition of a sentence which “is partly punitive but is mainly imposed for the protection of the public” (Re Moore and The Queen (1984), (ON SC), 10 C.C.C. (3d) 306, 6 D.L.R. (4th) 294, 45 O.R. (2d) 3 (Ont.H.C.), seems to me to accord with thefundamental purpose of the criminal law generally, and of sentencing in particular, namely, the protection of society. In a rational systemof sentencing, the respective importance of prevention, deterrence, retribution and rehabilitation will vary according to the nature of thecrime and the circumstances of the offender.

No one would suggest that any of these functional considerations should be excluded fromthe legitimate purview of legislative or judicial decisions regarding sentencing. [...] Preventive detention in the context of

Part XXI, however, simply represents a judgment that the relative importance of the objectives ofrehabilitation, deterrence and retribution are greatly attenuated in the circumstances of the individual case, and that of prevention,correspondingly increased: at paras 26-27 [33] This point has been consistently repeated in the jurisprudence.

Subsequently in R v Jones, (SCC), [1994] 2SCR 229 at 289, the Supreme Court again stated that “[s]ection 753 seeks to protect society against offenders who constitute a threat tothe life, safety or physical or mental well-being of other persons”. [34] In Johnson, supra, the Court once again affirmed that the primary purpose of the dangerous offender regime was theprotection of the public where preventative detention: goes beyond what is justified on a “just desserts” rationale based on the reasoning that in a given case, the nature of the crime and thecircumstances of the offender call for the elevation of the goal of protection of the public over the other purposes of sentencing: at para19 [35] Nevertheless there is still a role for general sentencing principles, even though the dangerous offender proceeding requiresthat the future protection of the public based on the likelihood of the commission of further serious personal injury offences is supremeover all other sentencing objectives set out in s 718: R v Solano, 2010 ONSC 3044 at para 39.

3. ISSUES [36] The following issues arise based on the parties’ arguments and the present statutory regime: 1. Is Mr. Paxton a dangerous offender under s 753 of the Criminal Code? 2. If Mr. Paxton is a dangerous offender, what is the appropriate sentence? 3. What sentence should be given in respect of the offences to Mr. Chutta? 4. THE EVIDENCE A.

General Principles [37] The Criminal Code and relevant case law set out the distinctive evidentiary rules for sentencing hearings generally and adangerous offender application in particular; s 757 states that character evidence is permitted in dangerous offender applications. At asentencing hearing the presumption against hearsay evidence is no longer applicable under subsection 723(5) of the Criminal Code.

In Rv Gardiner, (SCC), [1982] 2 SCR 368 at 414, Justice Dickson outlined that: It is a commonplace that the strict rules which govern at trial do not apply at a sentencing hearing and it would be undesirable to have theformalities and technicalities characteristic of the normal adversary process prevail. The hearsay rule does not govern the sentencinghearing. Hearsay evidence may be accepted where found to be credible and trustworthy. The judge traditionally has had wide latitude asto the sources and types of evidence upon which to base his sentence.

He must have the fullest possible information concerning thebackground of the accused if he is to fit the sentence to the offender rather than to the crime. [38] Given its purpose, there is a wide scope and variety of evidence that may be called at a dangerous offender application.

Whendiscussing dangerous offender proceedings, the Supreme Court reiterated the goal of the protection of the public and stated in the case ofR v Jones, supra at 289-90: As with all sentencing, both the public interest in safety and the general sentencing interest of developing the most appropriate penaltyfor the particular offender dictate the greatest possible range of information on which to make an accurate evaluation of the danger posedby the offender.

In the case of dangerous offender proceedings, it is all the more important that the Court be given access to the widestpossible range of information in order to determine whether there is a serious risk to public safety.

If there is, the dangerous offendersentencing allows the justice system to more precisely tailor the actual time served by the offender to the threat that he poses to society.The overriding aim is not the punishment of the offender but the prevention of future violence through the imposition of an indeterminatesentence. [39] In respect of this Application, the Court heard and received extensive evidence.

Some of the evidence will be discussed morethoroughly in relation to the particular issue to which it most relates but an overview of the evidence will provide the overall context toaddress the many interrelated issues that arise. It is also appropriate to set out the factual foundations so the complete picture isunderstood from the outset.

What is required is a contextual determination that focuses on the person’s actions and not simply thenumber of previous convictions. [40] Many of the Exhibits in this proceeding were admitted by agreement for the truth of their contents and without the necessityof calling the makers of the reports. Other evidence on various topics came through witnesses. [41] The evidence can be organized thematically into five categories. First, there was a great deal of evidence about Mr. Paxton,including his basic family and child welfare information, his criminal record and the circumstances of previous offences.

Second,evidence was provided by individuals who were part of the team of professionals who participated in his assessment process while at theSouthern Alberta Forensic Psychiatry Centre (“SAFPC”). In addition, there were medical records pertaining to Mr. Paxton’s time andtreatment at that facility. Third, three experts prepared reports and testified about many matters including Mr. Paxton’s psychologicalprofile, risk of future violence and potential treatability. Dr. Tano, a psychiatrist, prepared the assessment required under the CriminalCode. Dr. Trifiletti was a forensic psychologist called by the Crown. Mr.

Paxton called Dr. Nesca, a forensic psychologist. As betweenthese three experts, there are many areas of similarity and agreement and certain points of departure. Fourth, numerous witnesses testifiedabout the prison system, treatment programs offered to inmates and what services, programs, placements and supervision services areoffered upon release. This evidence will be canvassed in relation to the question of whether there is a reasonable possibility Mr. Paxtoncan e controlled in the community. Fifth, victim impact statements were filed or presented and Mr.

Paxton exercised his right to make astatement to the Court in relation to his sentencing. B. Information Concerning Mr. Paxton’s Background and Criminal Record [42] The Crown prepared binders of historical and background information concerning Mr. Paxton which were admitted byconsent and for the truth of their contents. These agreed-upon records set out Mr.

Paxton’s interaction with the legal system between1992 until the index offences and include certain pre-sentence reports, information and endorsements, police reports, progress reports,court transcripts, sentence disposition orders, previous risk assessments, risk management reviews, witness statements, Crownsummaries, discharge and hospital case summaries, probation orders, disposition orders, arrest warrants, recognizance orders, conditionalsentence orders, fine orders, probation orders and reports, probation intervention plans, family violence intake

summary and reports,inmate security assessments, documents from Manitoba Corrections, and many mental health related documents, including assessments,orders, reports, and release summaries. [43] All parties agree that what is contained therein is the evidence and that this evidence is to take priority over or trump what anyother witness may say about the events canvassed therein. The following sequence and description of events has been gathered fromthose agreed Exhibits. This is important because, for the most part, the information contained in these Exhibits was also given to theexperts and forms the basis for their opinions

[ 44 ] The following

summary was, for the most part, prepared by the Crown. I have gone through the Exhibits to verify that statements made in this

summary are contained in the agreed upon Exhibits.. [ 45 ] Mr. Paxton was born on January 14, 1980 and is the younger of two children. It appears his father had anger issues and his mother had alcohol issues. His parents separated late in his childhood and initially he lived with his father. From the age of 12 he was placed in foster homes and experienced ever increasing difficulties. Mr. Paxton’s lengthy criminal history dates back to his youth. An overview of his criminal record before the index offences prepared by the Crown is attached as Appendix A to these Reasons for Judgment.

It shows a total of 45 convictions ranging from minor property offences to assault with a weapon. Mr. Paxton has approximately 15 convictions as a youth and 30 as an adult. Roughly speaking seven are offences against the person, 16 are property based offences and 16 relate to failures to appear, and breaches of various sorts. [ 46 ] Dr. Nesca, the forensic psychologist called by Mr.

Paxton, provided the following encapsulation of his criminal history, which this Court accepts as accurate: My review of this document left me with the impression of a versatile and prolific criminal who tends to become physically aggressive when angered, frustrated or stressed. Mr. Paxton's victims of assault have included both females and males. In all cases, he was either well acquainted with the victim or had had some prior contact with him or her. His first conviction for violent offence occurred at the age of 14 and involved a teacher. Since then, Mr.

Paxton has assaulted three romantic partners and one male caretaker. With 13 violations of court order offences (e.g. FTA/FTC) Mr. Paxton’s criminal history also speaks of a general disregard for judicial authority. The overall pattern then, is one of man with sharply antisocial values who quickly becomes aggressive in response to negative emotional states. [ sic .] [ 47 ] Mr.

Paxton was living in a specialized foster home at the time of his first involvement with the criminal justice system when he was 12 years old. [ 48 ] On March 16, 1993 he was charged with a mischief to a Laundromat in Manitoba for conduct on August 29, 1992. There were four youths involved and the other three said he placed his feces in a Laundromat machine, then set them on fire, and a fan was broken. He pled guilty and the ordered Pre-Disposition Report (“ PDR ”) dated June 1, 1993 was in evidence. Despite the plea, he denied the actions, saying that the others were blaming him.

At this time, he lived in foster care and saw his mother and father once or twice a month respectively. He acknowledged that he and his father had relationship problems for three years because he would not listen to his father: he talked back, ran away and came and went as he pleased. His father agreed and said there was a lack of trust as his son was lying, stealing, fighting at school, destroying property and displaying violence towards his sister. Both rejected efforts to arrange counselling. [ 49 ] The PDR stated that Mr. Paxton had behavioural, rather than academic, problems at school.

The principal said he was a "very bright but disturbed student", who was referred to the support center as he acted like a bully, got into fights and was disruptive, attention- seeking, and incredibly manipulative. He took very little ownership of his problems, tried to intimidate staff and other students, was emotionally unpredictable (would go from being extremely polite to swearing at staff, would yell and scream and try to keep people around him off balance about what he might do).

He was also described as yelling and screaming rather than confronting the issue that angered him, notwithstanding the fact he was given permission to leave the classroom or school for a “time out” when he was angry. [ 50 ] Mr. Paxton was described to have said that he “does not care” when confronted about his behaviour. He was assessed by a psychologist in 1992 and was experiencing intense feelings of sadness, powerlessness and anger. He dealt with low self-esteem by putting others down and building himself up. He used denial and avoidance as well as aggression and intimidation.

Lying was considered a major issue. The PDR recommended supervision as Mr. Paxton had “not yet had the benefit of probation supervision.” [ 51 ] On June 6, 1993, Mr. Paxton was charged with breaking and entering into a dwelling-house in Winnipeg. A neighbour saw him enter the house of his ex-girlfriend, using a key from the shed. Nothing was taken. He made admissions to the neighbour, attended the police station with a foster parent and was released on a promise to appear. On September 14, 1993 he pled guilty to the lesser, included offence of being unlawfully in a dwelling.

He was sentenced to 15 hours community service work and he complied with that Order. [ 52 ] On September 22, 1993, he was sentenced for the mischief to the Laundromat to perform 50 hours community service work and to pay $71.80 in restitution, which payment was made. However, he did not complete the community service and a letter was sent to the Crown on March 30, 1994 advising them of such. [ 53 ] On November 7, 1993, Mr. Paxton drove a stolen motor vehicle valued over $1,000 when he and two friends were in the car.

He was stopped by police for failing to obey a traffic signal, drove away, then left the car and fled on foot. He provided a statement admitting to the offence and was released on an undertaking by consent. [ 54 ] On March 1, 1994, when he was 14, Mr. Paxton assaulted his teacher, Margaret Curwen with a chair. [ 55 ] On March 24, 1994, Mr. Paxton entered a guilty plea to possessing the motor vehicle and another PDR was ordered. [ 56 ] The PDR dated May 13, 1994 noted that Mr. Paxton "was unable to control his behaviour and threw a chair that struck a teacher." He was expelled. The plan for Mr.

Paxton to return home to his father had changed as the social worker said he was "unbending and unrealistic when it involves Dustin". Mr. Paxton had lost contact with his mother. He was noted to be bright and able to pick up things quickly. However, he acted out aggressively at school; he was unable to speak about feelings/emotions; his friends were 16-21 years old; he admitted to consuming alcohol every couple of months, but stated it was not a factor in the offences. He said he spent too much time “doing nothing”.

The report stated he had not completed previous conditions ordered by court, and showed no remorse or victim empathy. The PDR identified that Mr. Paxton was a high risk to reoffend. Moreover, the report stated that without assurances from Mr. Paxton, there were no likelihood assurances that any of the court-ordered conditions could be followed. It suggested that Mr. Paxton could benefit from anger management, criminal thinking errors and personal counselling regarding family history. [ 57 ] Mr. Paxton was sentenced to two months open custody for this offence on June 27, 1994.

[ 58 ] On October 15, 1994, Mr. Paxton stole a package of playing cards and an electronic keychain from Wal-Mart. A PDR dated November 2, 1994 related to the March 1, 1994 assault on Ms. Curwin and Wal-Mart theft. He admitted throwing the chair because he was “pissed off” but said he did not intend to hit the teacher. The teacher was able to raise her hand to grab the chair but it struck her chest and she was bruised. [ 59 ] After conviction for possession of the motor vehicle, Mr. Paxton was placed at Agassiz Youth Center to serve two months open custody.

He returned to his foster parent's residence on a 15-day temporary absence. On August 10, 1994 Mr. Paxton went back to Agassiz Youth Center as his behaviour deteriorated and he stayed there until his release on August 26, 1994. In custody, his attitude was reportedly negative: Mr. Paxton was unwilling to change, was confrontational, and was unable to control his anger. On October 12, 1994, Mr. Paxton was removed from his foster home because of his behaviour at school and was placed in a group home. Mr.

Paxton’s first two weeks there were “challenging”: he was brought back to the home twice by police, displayed two incidents of aggression, and made it clear he would rather be at the foster home. [ 60 ] On October 19, 1994, Mr. Paxton began grade l0 classes and was almost expelled for verbal abuse towards a teacher. However, he was allowed to stay in school because a worker from the group home mediated the dispute. Mr. Paxton continued to drink alcohol and convinced other group residents to join him. The immediate plan was for Mr. Paxton to stay at the group home.

His mother had some contact with him and his father had one visit at the group home. The Child and Family Services worker was not optimistic the relationship with his parents would improve. Mr. Paxton's response to correctional services had been negative as he did not complete the community service work, was a high risk to reoffend, and had not demonstrated ability to control behaviour or effect change for a length of time. As a result, it was suggested that a community based disposition was not appropriate. [ 61 ] Mr.

Paxton then broke into three houses and committed thefts on November 17, 1994, November 25, 1994 and December 7, 1994. [ 62 ] On December 7, 1994, Mr. Paxton with another male forced open a basement window causing $50 damage. They entered this residence and stole $1,700 in assorted electronic equipment, CDs and clothing. They were scared away by a neighbour. The other male was arrested in the area. $1000 was recovered by police. [ 63 ] On December 8, 1994, police went to a children's hospital where Mr. Paxton was admitted for seizures. The next day, police re-attended the hospital as he was being released. Mr.

Paxton was taken to a police station where he volunteered a formal statement admitting the offences. He was cooperative with police. [ 64 ] On December 20, 1994, Mr. Paxton failed to appear for court. [ 65 ] On January 4, 1995, Mr. Paxton and another individual unlawfully broke in to the Manitoba Association of Health Care Professionals. They entered through the roof and climbed through the ceiling tiles entering various offices; they stole a TV worth $1,800, a $300 VCR, and a $200 microwave. Total value of the property stolen was $2,300. The VCR and microwave were recovered but the $1,800 TV was not.

On January 8, 1995, police arrested Mr. Paxton. He told police he handled the goods but did not do the break-in. [ 66 ] On January 27, 1995, Mr. Paxton pled guilty to possession of stolen property valued over $1,000. In the Reasons for Sentence the Court noted it was "very upsetting" that after having been sentenced to open custody Mr. Paxton had learned nothing. Counsel advised that Mr. Paxton was intelligent and the Court noted he was not smart enough “to know you don't break into homes”. The Court commented that if Mr. Paxton were an adult he could expect penitentiary time and Mr.

Paxton was getting close to “transfer material”. The Court stated that it was not sure it could accept that it was everybody's fault but Mr. Paxton’s. Of significance was the fact that Mr. Paxton had also failed to attend court. The Court accepted the joint recommendation of counsel for seven months secure custody concurrent on all counts. [ 67 ] On February 7, 1995, Mr. Paxton pled guilty to the assault on Ms.

Curwen and the theft from Wal-Mart and the judge accepted the joint recommendation of six months, concurrent to the term he was serving. [ 68 ] On February 20, 1995, a risk needs assessment was done by Probation Services. The scoring was done based on criminal history, substance abuse, education problems, family problems, peer relation problems, accommodation problems and psychological variables. His risk score was deemed to be “very high”. [ 69 ] On February 23, 1995, Mr. Paxton escaped from lawful custody while in Portage La Prairie, Manitoba.

According to the review under the Young Offenders Act , RSC 1985, cY-1 (the “ Young Offenders Act ”), he had broken away from a group with two others at the Agassiz Youth Center, and ran. He was at large only a short time as he was found within five minutes of having left the institution. On May 10, 1995, he pled guilty to unlawfully escaping custody and was sentenced to one month secure custody, consecutive to time he was serving. [ 70 ] Mr. Paxton completed the Victim Awareness Program on April 13, 1995 scoring 82%. Mr. Paxton wrote a letter as part of the PDR.

He noted he spent most of his teenage life "locked up" and it wasn't until recently that he "did some sincere thinking" about the direction of his life and the people he was "dragging down with my disrespectful actions and behaviour." His goals in life were not to "end up in a bigger jail" and "not to victimize or hurt anyone"; he wanted to be respected and recognized as a successful law-abiding citizen. He wrote that he laid awake for hours at night thinking of the victims.

He suggested his remorse and empathy reached it peaks and it was time to “throw this disgusting way of living away". [ 71 ] On June 12, 1995, the mandatory review under the Young Offenders Act was completed. The report noted that Mr. Paxton's attitude and behaviour continued to be poor, was seen as a security risk and posed a danger to other residents, as well as himself. He had threatened group and staff, had physically acted out and was verbally abusive. He improved in mid-March 1995 as he was helping others and maintained a positive attitude even when others were negative.

He was placed in the school program at the Agassiz Youth Center and, by May 17, 1995, he had completed nine modules earning grades from 70-94% and maintaining an average of 83%. He was noted to be making steady progress, working well in class and was helping other students.

[ 72 ] In January 1996, Mr. Paxton was placed in Independent Living as he had indicated he would not live in a group home or a foster home. He functioned reasonably well in this setting but there were concerns about his drinking, his negative peer group, his temper and his refusal to participate in counselling. Mr. Paxton talked to his mother once every three to four months. He had regular visits with his father although he was not welcomed at his father's home. Mr. Paxton completed grade nine at the Agassiz Youth Center. School records showed he was verbally abusive to teachers, which resulted in Mr.

Paxton being expelled. [ 73 ] Following his release, Mr. Paxton reported that he was employed for three weeks as a telemarketer, then four months at Wholesale Direct and then as a caretaker. He indicated he had contracts for snow removal and his goal was to run a lawn care business in the summer and a snow removal business in the winter. [ 74 ] On October 2, 1996, Mr. Paxton pled guilty to forcible entry to the apartment of Denise Vandal for an incident that occurred on June 11, 1996.

A further PDR was ordered and he was released on a recognizance with a curfew. [ 75 ] On October 22, 1996 the police attended a call relating to disorderly youths and saw Mr. Paxton. They knew he was out past his curfew and arrested him. Mr. Paxton said he was ''just going home." He was charged with failing to comply with his recognizance. [ 76 ] On November 19, 1996, Mr. Paxton and a co-accused were in Sears in Winnipeg. They dropped items on the floor, Mr. Paxton’s co-accused put the items in his bag and the pair left the store. Both were arrested.

The items recovered were four Nike sweatshirts valued at $165. [ 77 ] In a PDR dated December 13, 1996 relating to the forcible entry on October 2, 1996, Mr. Paxton said he had been drinking beer with a friend and he had received a bill for a phone he loaned to someone and, as a result, he got angry. Mr. Paxton decided to retrieve the phone and forced himself into the apartment the friend shared with his ex-girlfriend. Alcohol was a problem at the time but he admitted he often had problems with anger in the past.

He accepted full responsibility but had little insight into why he allowed his anger to get out of control. [ 78 ] It was noted that Mr. Paxton was an intelligent young man who answered questions openly. He denied having a problem with alcohol and claimed he had not had a drink of alcohol since June 11, 1996. Previous reports indicated Mr. Paxton used cocaine and LSD and he indicated he had not used drugs since his release. He had no identifiable hobbies or interests. His interaction with peers was described as usually being negative and he had a volatile temper and could explode without provocation. Mr.

Paxton was noted as having self-identified an issue with anger control, despite the fact that he had taken anger management programs approximately five times. The report also suggested that Mr. Paxton had learned to have his needs met by being aggressive and threatening. Mr. Paxton did state a desire to change his behaviour but that the anger management courses had not worked. He attributed his present involvement with the law to a loss of temper. Mr. Paxton realized he made an error in judgement and understood he must be responsible. He admitted he likely had too much to drink on the night of the offence.

Counselling and attendance to the Addictions Foundation of Manitoba was recommended. One-on-one counselling was suggested but Mr. Paxton’s willingness to attend treatment was required. [ 79 ] On December 17, 1996 , Mr. Paxton was sentenced to 6 months secure custody followed by 14 months supervised probation with conditions including: report as required but no less than twice a month, attend anger management, criminal thinking, victim awareness counselling, attend Addictions Foundation of Manitoba as arranged by probation and abstain absolutely from alcohol. Mr.

Paxton wrote a three page document regarding "Success"; a one page document "Think Like the other Guy" and two pages about a lawn care business. [ 80 ] On September 17, 1997, as part of a Risk Management review, Mr. Paxton completed the Criminal Thinking Errors and ISSP [Intensive Supervision Support Program - for higher risk youth where workers have increased contact]. Mr. Paxton's response level was average. No or minimal responsibility for the crimes was noted. He showed partial knowledge of his warning signs but Mr. Paxton saw offending as wrong. Mr. Paxton was noted to have some problems but was manageable.

He had some supports available but not enough. He completed the program but did not meet all program requirements. [ 81 ] On December 30, 1997, Ms. Yestrau and Mr. Paxton were in a boyfriend-girlfriend relationship for about a year. They were at his residence, along with several others. An argument started between them, he grabbed Ms. Yestrau by the wrist, bent it backwards and then dragged her down four flights of stairs to the laundry room. Mr. Paxton then grabbed her by the back of her head and smashed her face into the countertop causing her nose to bleed and cut her upper lip. Mr.

Paxton then dragged her into the storage room, within the laundry room. She escaped and ran upstairs and tried to call her mother on the telephone. Mr. Paxton prevented her from doing that by unplugging the telephone. The following day, the victim's grandmother picked Ms. Yestrau up. The injuries that she suffered were slight swelling around the nose, swelling to the left cheekbone and a cut to the inside of the upper lip. This assault occurred while Mr. Paxton was still on probation for forcible entry, failing to comply with recognizance and theft. [ 82 ] Mr.

Paxton was released on conditions to not contact the complainant. However, between March 17, 1998 and September 2, 1998 he contacted the complainant many times at her residence and place of work. On September 2, 1998, the police were present when another member of the victim's family had just gotten off the phone with Mr. Paxton. The police were taking a statement from the complainant and Mr. Paxton called again. At least some of the calls were unsolicited. [ 83 ] August 26, 1998 was a trial date but the complainant did not attend and a witness warrant was issued for her.

On March 25, 1999, pleas were entered to assault causing bodily harm and breaching conditions. A PDR was ordered but was not completed and was waived. [ 84 ] On March 8, 1999, Mr. Aniello Deblasio, a caretaker of an apartment building in Calgary, responded to a complaint from other tenants about a fight in one of the apartments. He attended to the suite in question and encountered Mr. Paxton at the door holding a hammer in one hand and a knife in the other. Mr. Paxton told Mr. Deblasio that that if he did not leave in three minutes, he would “cut him into small pieces”. Mr.

Deblasio immediately felt something hit him on the head and the next thing he knew he was suffering a small but significant cut to his throat causing blood to go all over his shirt. Mr. Deblasio retreated to a local 7-Eleven store where he phoned police. Mr. Deblasio suffered no lasting injuries. Mr. Paxton was charged with assault with a weapon: these actions occurred while on release for assault causing bodily harm and breaches involving Ms.Yestrau.

[ 85 ] On April 27, 1999, Mr. Paxton failed to attend court in relation to the breach allegations for contacting Ms.Yestrau. [ 86 ] On August 3, 1999, Mr. Paxton failed to appear for trial for the assault on Mr. Deblasio. [ 87 ] On September 17, 1999, Mr. Paxton assaulted Amy Dunlop, in Regina. He pushed her to the ground and was on top of her when police arrived. Police noted the complainant was laying face down and crying profusely. [ 88 ] Eleven days after his assault on Ms. Dunlop, on September 28, 1999, Mr. Paxton assaulted Ms. Dunlop again, this time using a knife.

He was also in breach of a no-contact Order that was in place as a result of the prior assault on September 17. On September 28, Mr. Paxton was with Ms. Dunlop and her brother, Jason, and had just returned home when Mr. Paxton got mad and “flipped out” on Jason. She got in the middle of them, because she did not want her brother stabbed, and her arm was cut by the two knives Mr. Paxton was holding. Mr. Paxton also told police his name was “Justin Main Packston”. [ 89 ] On September 29, 1999, in a Bail Verification and Supervision report related to the assaults on Ms.

Dunlop and the obstructing a police officer and breach of undertaking charges, Mr. Paxton suggested to the report author that he was diagnosed as being manic depressive and was taking medication. He had stated that, because of his depression, anger was his secondary emotion and that getting help for this was a priority for him to address if released. [ 90 ] On October 7, 1999, in Regina, Mr. Paxton was sentenced to a 6 months Conditional Sentence Order (“ CSO ”) and 6 months' probation. [ 91 ] On November 22, 1999, in Winnipeg, Mr. Paxton had attended the home of Ms. Carter for supper.

He was on a CSO from Regina when he consumed several beers and argued with Ms. Carter's brother. When Ms. Carter asked Mr. Paxton to leave, he became upset and stated “No, I’ll kill your brother and I'll be on a roll and you'd be next.” Mr. Paxton told the complainant that he knew where she lived and where she went to school. Ms. Carter was concerned and contacted police. [ 92 ] On March 7, 2000, Mr. Paxton pled guilty to assault causing bodily harm on Ms. Yestrau, and the breach for contacting her. Any harassment component was denied by Mr. Paxton.

Defence counsel suggested it was the complainant's mother who intervened and it wasn't that the complainant did not want contact. Mr. Paxton told the Court he had taken a look at what happened and that he had changed his way of living as well as his thought process and how to deal with situations. He had no experience with relationships at the time and was “deeply apologetic to her as well as to her family and her friends.” [ 93 ] In the Reasons for Sentence, the Court noted Mr. Paxton was responsible for a “brutal attack in a domestic context”. The mitigating factors included Mr.

Paxton's age, and his remorse in a situation where there appeared to be a reluctant complainant. Mr. Paxton was sentenced to three months secure custody, having factored in time already served with 30 days consecutive for breach plus one year of supervised probation. The conditions of the probation included counselling as directed by the probation officer. [ 94 ] On March 13, 2000, Mr. Paxton was arrested while in custody for the threats to Ms. Carter from November 1999. [ 95 ] On June 22, 2000, Mr. Paxton pled guilty and was sentenced for the threats to Ms.

Carter from November 1999 and failure to attend court in April of 1999. There was not a long history between the victim and Mr. Paxton. Mr. Paxton was noted to be “something of an obnoxious drunk”. His sentence was “time served” and one year probation with conditions that included alcohol assessment and any consequent counseling as directed. [ 96 ] On August 23, 2000, Mr. Paxton and a co-accused female youth attended to the Sears store and took a Sony DVD/CD player with a remote valued at just over $600.

They proceeded to the back of the store where the DVD player was placed into the backpack carried by the female. When Mr. Paxton noticed security watching, he removed the player from the backpack, put it on the shelf behind other merchandise, then left the store. When security checked the package they noted that the remote was gone. The two were observed by store security in the mall. When they noticed they were being watched they re-entered the store, went to the home department where Mr. Paxton was observed to go to the exit. His female accomplice went to the woman's washroom where she put the DVD control.

She left the washroom and met Mr. Paxton outside where they were arrested by store security. Upon arrest, Mr. Paxton falsely identified himself to police as “Steve Dann”. Mr. Paxton was on probation at the time of this offence. [ 97 ] In September, 2000, Mr. Paxton met with probation and a primary risk assessment was completed as well as an intervention plan. He was assessed as a medium risk to reoffend and was referred to Addictions Foundation Manitoba for an assessment as well as to a domestic violence program. The Family Violence intake

summary dated September 27, 2000 noted Mr. Paxton's version of events for the various charges. He claimed Ms. Yestrau hit him first, and he grabbed her wrist twisted it behind her back then dragged her downstairs. He then pushed her and she "hit the countertop with her face" because of the push. He said he had been consuming alcohol while taking anti-depressant medication. In relation to uttering threats against Ms. Carter, Mr. Paxton was angry at her brother, when she supported her brother; Mr. Paxton threatened to kill her. He said he had been consuming alcohol while taking anti-depressant medication.

The writer noted there was minimization of behaviour and that Mr. Paxton rationalized his use of violence by blaming the victim. Mr. Paxton did accept partial responsibility but claimed he was only physically abusive to Ms. Yestrau and that it was an isolated incident. [ 98 ] Mr. Paxton had been placed on probation in June 2000 for uttering threats and breach of recognizance, in addition to time in custody. He never reported and he did not take counselling. It was stated that Mr.

Paxton had been reminded on each reporting date to comply with the requirement but he did not comply between January 2001 and April 2001. He was described as "otherwise cooperative'' but had failed to attend the court-ordered addiction assessment and then ceased reporting to his probation officer. [ 99 ] On January 6, 2001 Mr. Paxton was absent from the Partner Abuse Short Term Program (“ PAST ”), which he was required to attend as part of his conditions of probation. [ 100 ] The probation officer's

summary of contacts dated July 5, 2001 noted that Mr. Paxton was on three, one-year probation Orders. Mr. Paxton was somewhat cooperative until December 2000. He reported January 9, 2001, then failed to report afterward. He failed to attend the PAST program on February 3, 2001. Mr. Paxton claimed there was an incident in late December where he blacked out after

taking Paxil. It was noted that the "black outs" occurred when Mr. Paxton consumed alcohol with medications. His overall situation deteriorated beginning November 2000 when Mr. Paxton was dismissed from his job. Mr. Paxton was assessed as a medium risk, and was described as having mental health issues and a history of being uncooperative with doctors and social workers. [ 101 ] A Risk Management Review completed on July 5, 2001, found the Offender Response Level as poor. Mr.

Paxton was determined to have: no or minimal responsibility accepted; no or minimal awareness of impact on victim; no or minimal knowledge of warning signs or methods of control of his behaviour; seen nothing wrong with offending; frequent or serious problems and difficult to manage since admission into custody; no community supports available or had been unwilling to accept support; and, had irregular attendance, did not complete or refused participation in intervention programs. [ 102 ] On July 30,2001, Mr. Paxton was at the residence of Ms. Dupuis. An argument broke out over a cigarette at 1:30 am. Mr.

Paxton became enraged and began to belittle her. Mr. Paxton would not let her leave and forced her to sit on the couch as he continued the verbal abuse. At one point she tried to leave, he grabbed and twisted her wrist. Later, they both fell asleep and, when they woke up in the morning, he allowed her to leave. There was no injury when he twisted Ms. Dupuis’ arm [ 103 ] On October 29, 2001, a warrant issued for Mr. Paxton’s failure to comply with a promise to appear on September 26, 2001. The warrant was not executed until September 6, 2002. [ 104 ] In August 2002, Mr.

Paxton broke into the Harlequin Costume store in Winnipeg by prying a 3x4 foot hatch off the roof, climbing down through the suspended ceiling and obtaining $400 in cash, a Sony digital camera and cheques. The total damage was estimated at $100. He went back overnight between September 2-3 2002 and again gained entry by the same hatch in the roof and this time stole cash, a CD player and a stereo tuner. Mr. Paxton's role was discovered on September 4, 2002 when a co-accused unsuccessfully tried to cash one of the stolen cheques. Mr. Paxton was arrested September 6, 2002 at work.

He admitted his involvement and when the police took him back to his apartment, there was a full recovery of the stolen property. The only thing that was missing was the cash. [ 105 ] A Security Assessment from September 7, 2002 notes a medium security classification. His current conviction was Assault Causing Bodily Harm. An allergy to metal (if it touches too long) was noted. There were no mental health concerns. It was noted he "uses pot daily." The suicide risk assessment found no evidence of having primary predictors or secondary indicators. [ 106 ] A Winnipeg Remand Centre Internal Transfer

Summary dated September 13, 2002 noted that in 2000, Mr. Paxton was a garbage trustee and was fired due to poor attitude. He had a documented history of a poor attitude with staff in the past. The writer noted the present unit behaviour had no documented negative behaviours; Mr. Paxton was cooperative with police. Mr. Paxton said he was getting along fine in the unit. [ 107 ] On February 11, 2003, an information was filed alleging that Mr.

Paxton had breached his recognizance by failing to report to bail supervision within 48 hours following his release from custody. [ 108 ] On March 20, 2003, RCMP Headingley received a report of a break-in to the Desilets Insurance Company in Elie, Manitoba. There was a description given to the police of a suspect vehicle which was believed to be heading east into Winnipeg. RCMP responded and the vehicle was found along with the help of the Winnipeg police. Mr. Paxton was one of three men found inside the car. Included among the items in the car were computer components from the insurance company. Mr.

Paxton gave his name as Milton Ward Bradley and subsequent to police investigation his real identify was revealed. [ 109 ] On March 25, 2003, while in custody Mr. Paxton approached staff saying he was “seeing things.” He saw a mental health nurse who was concerned and said she would get a doctor to see him “a.s.a.p.”. The nurse requested that Mr. Paxton stay on the unit until he was seen by a doctor and became more stable. [ 110 ] On April 23, 2003, when a guard asked what location he was from, Mr. Paxton refused to answer. Mr. Paxton yelled at staff that they should know where he was from. He yelled and swore.

Staff sent him back to his floor and sent his visitor away. [ 111 ] On May 13, 2003, Mr. Paxton pled guilty to the break and enter, theft, failing to comply with a recognizance, personation, and possession of stolen property. Taking into account the two months spent in custody, counsel recommended a conditional sentence. Mr. Paxton's father and girlfriend were in court supporting him. The plan was for Mr. Paxton to live with his girlfriend and get away from the cycle he was stuck in with his environment and way of thinking. The matter was adjourned to May 14, 2003 where defence counsel advised the Court Mr.

Paxton's father was prepared to support him, Mr. Paxton's mother was present and was also prepared to help and support. The Court found it somewhat puzzling that Mr. Paxton found himself back in trouble as he did not have a drug habit that was driving him toward crime. Nevertheless, Mr. Paxton’s family support and his ability to hold down a good job were acknowledged and the Court was prepared to give him another chance to serve a sentence in the community. Mr.

Paxton received a nine month CSO, concurrent on all convictions with conditions that included: abstaining from alcohol and non-prescribed drugs, Counselling as directed, 100 hours of community service work and a curfew with exceptions. Restitution in the amount of $575 was also ordered. [ 112 ] The primary risk assessment of July 14, 2003 noted Mr. Paxton to be a high risk level and that he was diagnosed with paranoid schizophrenia. There was a proposal to delete the community service requirement from his conditions on the CSO as Mr. Paxton was “medically excused” from working. [ 113 ] A File

Summary from Manitoba Corrections notes that Mr. Paxton admitted to buying stolen goods and reselling for profit. His criminal behaviour is linked to making fast money as he needed to pay down debts - which included $50,000 restitution to Autopac, credit cards and a student loan. He was unemployed and was diagnosed with paranoid schizophrenia and instructed not to work for 6-12 months. He relied on disability payments as a source of financial support. He was prescribed medication for schizophrenia and felt the medication was helping stabilize moods, however he had only taken them when he felt he needed to. Mr.

Paxton was said to have a high risk for reinvolvement: he had a history of violent behaviour, lying, destroying property, and being criminally re-involved and non- compliant. It was suggested that a lack of medication may have contributed. Mr. Paxton indicated he was confused and embarrassed about his illness but Mr. Paxton felt he would benefit from ongoing counselling and monitoring of medication. At that time, he had no

positive support in the community. [ 114 ] On August 30, 2003, Mr. Paxton attended and another male smashed out the driver's side window of a Chrysler Intrepid, and took various items from the vehicle valued at $500. They attempted to flee but were caught by police. Mr. Paxton admitted stealing property from the vehicle. [ 115 ] On October 1, 2003, an information was filed stating that Mr. Paxton had failed to attend his scheduled court date. [ 116 ] In November 2003 a probation report was completed. Mr. Paxton was still noted as a high risk for reoffending.

The areas of concern included: alcohol abuse, attitude, family relationships, mental ability, prior convictions, and nature of offending and peer associations. He had missed appointments on September 29, 2003 and November 12, 2003. He was noted to have been difficult to manage on the conditional sentence. Mr. Paxton had attended the first two appointments; however, his telephone had become disconnected and he had missed the last appointment. The report recommended that, unless Mr.

Paxton became willing to comply with direction from probation services, he would continue to be difficult to manage in the community. [ 117 ] While in the Winnipeg Remand Centre, Mr. Paxton was transferred to hospital for psychiatric treatment. The discharge

summary noted that Mr. Paxton was found in acute distress caused by mental illness. Mr. Paxton stated "I am sick. I am very sick. I want to stop that" and described a year of hearing voices that argue amongst themselves and talked about him. In the Remand Centre, Mr. Paxton had developed delusions of persecutory nature and acted in a bizarre manner: seeing cameras popping from everywhere; spending long hours in a closet; being terrified of voices; and, putting foil on walls. After three weeks in the hospital, Mr. Paxton was sent back to the Remand Centre and remained under the care of Dr.

Globerman while in Remand. [ 118 ] A December 19, 2003, a guilty plea was entered to the assault on Ms. Dupuis. Mr. Paxton was sentenced to three months’ jail consecutive to time he was serving. As a result, the CSO he received May 2003 was terminated. He also pled guilty to theft and driving while his license was disqualified from the incident on August 30, 2003. [ 119 ] During the sentencing hearing, Mr. Paxton’s schizophrenia diagnosis was discussed. Defence counsel thought the onset was in early 2000 and it may be the reason for some of Mr. Paxton's criminal involvement.

It was submitted that part of the problem that occurred in the past several months was as a result of Mr. Paxton not being able to get medication. Mr. Paxton told the Court that he was sorry for what he did, and now that he was on his medication he felt like he had a handle on his paranoia. [ 120 ] On January 30, 2004, Mr. Paxton was moved from Remand and admitted to hospital for psychiatric treatment. He indicated that he began to fear he was being watched by the guards through cameras and little microphones that were hidden in the cracks of the wall of his cell. He also feared his food would be poisoned.

He stopped eating and could not sleep. He heard voices that supported his fears. He did not have derogatory comments or command hallucinations. There were no ideas of reference, thought broadcasting, thought withdrawal, thought insertion or grandiose delusions. The only depressive symptom was poor energy. He stuffed his vents with paper towels, but had no fear of being in the common areas or the ward. [ 121 ] The Discharge

Summary stated that, after the first few days in hospital, Mr. Paxton appeared to be only mildly distressed by his ongoing psychiatric symptoms. He was greatly distressed by the prospect of returning to the Remand Centre as he stated he feared guards at Remand and was also concerned that his girlfriend would not be able to bring him food at Remand. On several occasions, Mr. Paxton tried to seek reassurance that he would be kept in hospital until his release date of April 6, 2004. The majority of Mr.

Paxton’s improvement occurred in the last few days prior to the end of his sentence, particularly the last 48 hours prior to his release. Upon release, Mr. Paxton was diagnosed with schizophrenia, paranoid subtype with an acute psychotic episode, now resolved, as well as a component of malingering. [ 122 ] On June 9, 2004, Mr. Paxton, with a second unidentified male, entered a residence and stole electronics totalling approximately $3500. A subsequent investigation by Winnipeg Police Identification Unit revealed the presence of a latent fingerprint located on the glass removed by the suspects.

The fingerprint was matched to Mr. Paxton. On September 28, 2004, the Offender was arrested at his residence and taken to the public safety building where he contacted counsel. He was then interviewed where he admitted to the offence stating “I’m sorry, that's where I took the laptops, I hope they get them back, there's nothing I can do.” He was later released on a promise to appear, which he breached on December 7, 2004. [ 123 ] Mr. Paxton went from Remand to the hospital complaining of hallucinations “aliens were coming and I thought they might attack”.

He admitted to the ER nurse that he had “gone on a crystal meth trip”. He was initially uncooperative, refusing to answer questions, and seemed agitated and paranoid. He requested to be tested for inhaled drugs as he thought someone gave him sleeping powder. His past psychiatric history was noted. [ 124 ] Over the early part of his hospital stay Mr. Paxton was noted to be uncooperative (swearing, angry behaviour, etc.). By December 8, 2004 he was more cooperative but still guarded about some of his symptoms. By December 9, 2004 the symptoms started to decrease.

Prior to discharge he went on a successful weekend pass and successful family meeting. He still had some symptoms prior to discharge but he had reached a baseline level. He was given instructions to go to emergency if symptoms worsened and he was given an appointment with Dr. Globerman as a follow-up. He was discharged December 13, 2004. [ 125 ] On January 17, 2005, Mr. Paxton was intoxicated at a bar and had tried to pick a fight. The bar owner told police Mr. Paxton had left, and was heading to Winnipeg driving a 1992 blue Ford Explorer. Police later caught Mr. Paxton in the vehicle.

Once in the police car, a strong smell of liquor was noted on Mr. Paxton’s breath and he was arrested. Mr. Paxton told police he was a suspended driver. Mr. Paxton was charged with operating a motor vehicle while impaired. [ 126 ] On July 26, 2005 , Mr. Paxton, with a co-accused, manipulated an ATM within the hotel in a manner whereby patrons who attempted to extract money from the machine would be fooled into thinking no money had been dispensed. In actuality the money was being dispensed from the machine but was caught on a piece of two-sided tape placed in the money dispensing slot by the two accused.

The accused would also tamper with the receipt slot on the machine by stuffing napkins into the slot and thus a receipt could not be extracted either. The men attempted to continue the scam but the manager of the hotel confronted them and they fled the scene.

[ 127 ] On September 21, 2005, Mr. Paxton was observed by a witness in a vehicle that had been reported stolen to police about five days previous. Mr. Paxton entered a gas station where he proceeded to manipulate the ATM with double-sided tape as he had done on July 26. He was observed to enter and exit on several occasions. One customer had attempted to use the ATM machine but found that when she completed her transaction no cash had been dispensed. She contacted the owners of the ATM machine who sent out Brinks security and they found the two-sided tape there and there was $140 attached to that tape. Mr.

Paxton was identified via video surveillance and a warrant was issued for his arrest. [ 128 ] On January 6, 2006, Mr. Paxton was captured on video jamming a receipt dispenser of an ATM with an item, then placing a device in the currency port of the item. It was subsequently inspected and paper towel was jammed in the receipt dispense and a piece of black electrical tape in the currency port. Upon arrest, Mr. Paxton lied to police about his name, identifying himself as Kevin Lindsay Friesen. [ 129 ] From the transcript: Mr. Paxton was diagnosed as being a “chronic schizophrenic”. Dr.

Singh was his treating psychiatrist at Alberta Hospital. Appears Mr. Paxton was in custody from January 6, 2006 - May 2, 2006 and spent 60 days at Alberta Hospital being assessed for fitness, when the 60-day maximum limit was exhausted he was remanded back to the hospital under a mental health certificate. [ 130 ] On February 3, 2006, Mr. Paxton was admitted to hospital to determine his fitness to plead and to assess his mental condition. In a report dated April 26, 2006, Mr. Paxton was found fit. The report described his initial presentation where Mr.

Paxton was quite vigilant, suspicious, mumbled to himself and voiced persecutory beliefs. When interviewed he became distraught and broke into tears over his frustration and the psychiatrist noted Mr. Paxton was muttering and whispering to unseen stimuli. Initially Mr. Paxton was aloof, withdrawn and asocial on the unit. He spent m

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