Her Majesty the Queen ) ) D. Mann v. C. Sholdice,, 2012 MBPC 18

Citation: 2012 MBPC 18 THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) ) D. Mann and C. Sholdice, for the Crown ) - and - ) ) Sonny COOK ) J. Ostapiw, for the Accused ) ) Judgment delivered: ) February 2, 2012 SANDHU, P.C.J. I. INTRODUCTION [ 1 ] This is a Dangerous Offender Application pursuant to s.753 of the Criminal Code , and a request by the Crown for a sentence of an indeterminate period of imprisonment.

All preconditions of notice and procedure have been met. [ 2 ] The hearing of the matter took place over approximately 4 days in May, 2011, with a subsequent hearing date of November 14, 2011 to hear from the expert Crown witness, Dr. Scott Woodside who was the author of the filed court ordered and statute mandated Forensic Order of Assessment. Dr.

Woodside was ill on the originally scheduled date of June 13, 2011, necessitating the November 14 date. [ 3 ] Arguments were heard on November 16 and 17, 2011, and the matter reserved to today’s date for decision. [ 4 ] As the predicate offences pre-date the amendments to the Criminal Code regarding offences that occurred after July 2, 2008, the application is governed by the statutory provisions as they applied prior to that date. [ 5 ] The determination of this type of application is governed by statute. The test is generally well known and understandable.

Has the Crown-Applicant discharged its’ statutory burden and shown beyond a reasonable doubt that the accused is a dangerous offender, as statutorily defined? If not, what is the appropriate sentence for the predicate offences giving rise to the application, and, in either case, is a Long Term Offender designation appropriate, either as adjunct to a dangerous offender designation, or in addition to straight sentencing for the predicate offences? [ 6 ] Even if the Court finds the accused to be a dangerous offender the principles established in Johnson (infra) pursuant to the sentencing objectives in

Part 24 proceedings, the Court may still avail itself of the long-term offender options available under the long- term offender provisions. This is subject to a finding that these provisions would be sufficient to reduce the threat to the safety or physical or mental well being of other persons to an acceptable level, pursuant to s. 753.1. [ 7 ] Specifically the Crown relies on s.753(1)(a)(

i) and (ii). “Application for finding that an offender is a dangerous offender – On application made under this Part after an assessment report is filed under subsection 753.1(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.

[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

section 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.” [ 8 ] Pursuant to s.753(4) if the court finds an offender to be a dangerous offender it shall impose a sentence of detention. “Sentence for dangerous offender – 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; or (

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.” [ 9 ] The Crown relies on all sections of s. 753(1)(

a) and submits that all criteria have been established to meet the test for a dangerous offender designation, other than ss. (iii). [ 10 ] According to the principles established in the Johnson decision, infra., the sentencing objective in

Part 24 proceedings is the protection of the public. If the sentencing Court is satisfied that the sentencing options available under the long term offender provisions are sufficient to reduce the threat to the life, safety, or physical or mental well being of other persons to an acceptable level (of risk), the Court should impose the lesser sentence of a Long Term Offender Order, which is set out in s 753.1. II.

THE PREDICATE OFFENCES AND CRIMINAL HISTORY OF THE OFFENDER Predicate Offences [ 11 ] The incidents giving rise to the conviction for the predicate offences occurred on August 11, 2007, being convictions for choking to overcome resistance and sexual assault, the victim being a V.H.; and sexual assault with a weapon on August 5, 2007, the victim being a K.M.. Mr. Cook entered his guilty pleas on July 3, 2009 before me and an Order for Assessment was issued.

The matter took some time to get to the Court hearing stage due to some changes of counsel, and once the author of the Order for Assessment was ill during scheduled hearing dates. No issue has been raised about the amount of time it has taken to take the matter to hearing, even with the history of delays. Details of August 5, 2007 predicate offence [ 12 ] On August 5, 2007, Cook befriended the victim, K.M., age 39, outside of an apartment block and invited her up to his suite for drinks. Cook and M. consumed beer.

After M. refused to drink Cook’s beer he held a machete to M.’s throat and demanded that she remove her clothing. M. complied under threat and was thrown onto a bed by Cook. Over the next several hours Cook repeatedly sexually assaulted M. by penetrating her both vaginally and anally with his penis. Cook ejaculated inside M.. During the assault, Cook choked M. around the throat and suffocated her mouth with his hands, and also repeatedly punched her about the head and face, causing a bloody nose. M. attempted to flee on more than one occasion to her own suite in the apartment block, but was prevented by Cook.

Shortly after midnight, August 15, 2007, while Cook was falling asleep M. was able to escape. M. suffered injury to her nose and soreness to areas of her body that were violated by Cook. There are more details to this offence in the Court Record at Volume 2, Tab 10. [ 13 ] Cook was arrested on September 19, 2007, while in custody on the August 11 th predicate offence and provided a video statement admitting to the offence, but indicating a lack of full memory, admitting that he sometimes has nonconsensual sex in his suite. [ 14 ] Further extensive details regarding this offence are contained at page 26 of Dr.

Woodside’s report. Details of August 11, 2007 predicate offences [ 15 ] At the time of both predicate offences, Cook was on a Probation order in regard to an utter threats to kill or cause bodily harm conviction, with his common law partner of 9 months being the victim. This had occurred on March 5 th , 2007, with a conviction date of April 11 th , 2007, resulting in a sentence of 37 days pre-sentence custody and one year of supervised probation. [ 16 ] On Saturday, August 11, 2007, at approximately 6 a.m., the victim V.H., age 38, was on her way home from a friend’s apartment building.

She called for the elevator in the same apartment block, the same block as Cook, and entered the elevator where Cook was already standing. As the elevator descended to the 15 th floor, Cook struck up a brief conversation with H.. The elevator descended to the 11 th floor and, as H. attempted to exit, Cook forcibly restrained H., and dragged her by the hair to his suite, 1101. [ 17 ] In the suite Cook demanded H. remove all her clothes which she refused. Cook threw H. onto the bed and ripped her clothes off. Over the next four hours, Cook repeatedly vaginally sexually assaulted H..

H. attempted to resist, but was repeatedly met with threats and physical force by Cook and punching her about the face. At one point during the sexual assault Cook placed a pillow over H. face causing her to nearly lose consciousness. She was able to escape when Cook went to use the bathroom, but Cook threatened her as she fled by saying was infected by HIV and not to go to the police. There are more details on this offence in the Court Record at Volume 2, Tab 9.

[ 18 ] Police were contacted by H. and she provided a full statement. Cook was arrested on August 11 th at 8:00 p.m. [ 19 ] Further details regarding this offence are contained at page 26 of Dr. Woodside’s report. [ 20 ] Cook has remained in custody since, and was arrested in September while in custody as noted for the August 5, 2007 predicate offences. [ 21 ] The Court has had the opportunity to review both of the video-taped statements of the victims regarding these offences, and the video- taped statements of Mr. Cook, and they are Exhibits in the Record. III.

CRIMINAL RECORD AND DETAILS OF MAJOR PAST OFFENCES 1993: PWDPP and fail to comply with probation. [ 22 ] Cook was fighting with police when arrested for carrying as weapon. He was fined and placed on one year of supervised probation. He failed to report to probation at all from April 2, 1993 to September 9, 1993 and a warrant issued. He was eventually arrested on February 24, 1994, and was heavily intoxicated. [ 23 ] Cook stated to Dr. Woodside that he recalled the incident.

He noted he was intoxicated at the time and stated that someone stole money from him and agreed the police synopsis was accurate. 1995-06-07: Break and enter and theft – 6 months jail and one year probation [ 24 ] Cook and two other unidentified males attended a printing shop in the early morning hours of May 26 th , 1995. The entered by breaking the glass of the front door and stole goods of a value of $2,925. He was apprehended at the scene, and was intoxicated.

February 29-March 4, 1996 Sexual Assault on F.G. – February 6, 2007 sentence: 6 years jail in addition to time served of 101/2 months, concurrent to sexual assault/assault with weapon on L.P. [ 25 ] Cook and Ms. G. had been living together for a number of weeks. [ 26 ] There were prior consensual sexual acts previously, but on February 29, 1996 he tied a shoelace around the victim’s neck without consent leading to non-consensual intercourse. On March 3, 1996 there was forced intercourse where Cook tied G.’s hands and feet together and put a cloth with a battery in it her mouth as a gag.

He then hit her in the head with beer bottles breaking them over her head, including one that was full. He then had further forced sexual intercourse. [ 27 ] G. had a miscarriage; although it was agreed Cook did not know about the pregnancy. The victim spent 3 days in hospital recovering from her injuries. According to CRC records, on the intake interview Cook stated he knew the victim was pregnant and was trying to get rid of the fetus. He stated to Dr. Woodside, “she was gonna leave me. She was pregnant…..I beat her up and sexually assaulted her. I made her have a miscarriage.” He went on to indicate to Dr.

Woodside that he did it intentionally as she had been cheating on him. [ 28 ] Further details regarding this offence are contained at page 26 of Dr. Woodside’s report. August 7, 1996 Sexual Assault on L.P. [ 29 ] At the time of this offence, Cook was on bail and recognizance for the offences relating to G.. Cook approached the victim whom he did not know at a donut shop. P. invited Cook to a party and the two had some consensual minor touching. Cook then forcibly took P. to the basement of the house and forced sexual intercourse on her, pulling her by the hair.

He had forced sexual intercourse on her on two occasions and was in the act of a third attempt when police arrived and intervened and arrested Cook. [ 30 ] When interviewed by Dr. Woodside, Cook indicated he was aroused by the fact that Ms. P. was resisting. He appeared to be still unremorseful, stating to Dr. Woodside, “I had to go through six years of jail because of one stupid girl”. [ 31 ] Further extensive details are available in Dr. Woodside’s report.

November 3, 1996 Assault With Weapon on D.T. [ 32 ] This incident occurred while Cook was in custody on the above noted sexual assault charges, pending trial. Cook decided on an attack on T. as he expected T. to assault him. Cook approached T. from behind while carrying a cup of hot water and a broom handle. Cook poured the water over the victim and struck him about the head with the broom hand, and jabbing at the neck and upper body of T.. There were significant injuries.

September 4, 2003 Breach of s. 810 Recognizance [ 33 ] Cook was released on June 6, 2003 from his federal sentence and placed on a s. 810.2 peace bond. There was a history on non- compliance leading to his arrest and conviction for breach of curfew and failing drug testing. November 21, 2003 fail to comply with probation order [ 34 ] One week after being released for the breaches of the s. 810 recognizance, Cook was found intoxicated during a curfew check. He was sentenced to a total of 71 days time in custody and a further 3 months jail.

April 11, 2007 conviction for uttering threats [ 35 ] March 5, 2007 – Cook had been in a casual relationship with a V.C. for about 9 months. On this date he was at the C. residence where he was angry and walking around with a knife, yelling threats at C. and threatening to kill her. She was not home at the time, but this was witnessed by two adults. Cook was placed on a period of supervised probation upon his release, and was on this probation order at the time of the predicate offences. IV. THE BACKGROUND OF THE OFFENDER [ 36 ] Mr. Cook is an aboriginal man, born on December 27, 1972.

He was born in Swan River, Manitoba and was raised in Shoal River. Records indicate Cook was severely abused both physically and emotionally by his father. His mother ended her relationship with Cook’s father at an early age, when they relocated to Winnipeg when Cook was six years old. His father died of liver failure in 1992. Cook has eight siblings and is said to have been close to his family until his extensive periods of jail time commenced in 1996. Cook has a completed Grade 11 education.

He has never been employed for any lengthy periods of time and has mainly been on some form of temporary work or social assistance. He appears to have never married or been in a long term or stable relationship with a woman. Mr. Cook reports that his childhood was “rough”, from both physical abuse and emotional perspective. He described beatings from his mother with a strap and a broom and noted that his mother also drank very heavily, as did his deceased father. He states that his mother was disorganized, forgetting to feed the children and was often absent from the home for periods of time.

He reported being placed in the care of family services at age 13 and reports violence against him by his siblings. He ran away and eventually went back to his mother’s residence, where he remained to the age of 24. [ 37 ] An extensive review of Cook’s background in contained in the Assessment report of Dr.

Woodside. [ 38 ] Cook has been involved with the criminal justice system since youth, and has an extensive and voluminous provincial and federal corrections record that consisted of at least several volumes of detailed institutional and non-institutional supervision that were filed and form part of the Court record.

Summary of CSC Records and Probation Services Records [ 39 ] It is exceeding difficult to summarize the vast amount of information and materials that have been filed. The

summary is as follows: [ 40 ] Correction Service of Canada Records (Volumes 3 and 4), from 1997 to 2003 indicate a pattern of non-compliance and non- performance of rehabilitative program that continued throughout his incarcerations and community supervisions, and which contains dozens of incidents and reports related to these efforts. [ 41 ] Upon Cook’s incarceration in 1997 he acknowledged a long standing alcohol and drug problem. Intake noted he had “no respect for women”. He showed no remorse but indicated a willingness to take programming.

He accepted the facts of his recent sexual assault convictions, but no signs of guilt or remorse. [ 42 ] He was placed in the Saskatchewan Penitentiary and attended some programming, but passed none of them, or did poorly. He was in a sex offender program, but his risk did not change from being high risk. He said he was not going to quit his substance abuse. He was still assessed at high risk to reoffend. [ 43 ] He was assessed to attend a more intensive sexual offender program, Wellspring, and did attend, but refused to attend any other programming.

At the end of a poor performance in the program he indicated he would still sexually reoffend and drink alcohol, He was moved from medium security to maximum security as he had fights and lit two fires in the federal penitentiary. He lit another while in segregation. [ 44 ] In 2002 to 2003, in the time immediately prior to his statutory release date he was assessed as having made minimal rehabilitative efforts, with little motivation and insight. He stated he had learned “nothing at all”. Forensic Psychological Services Information [ 45 ] Cook was released from federal custody in 2003.

It should be noted that in addition to working with Forensic Psychological Services for the entire time that Cook was in the community from 2003 to his arrest on August 11, 2007, Cook was also supervised by Probation services almost all of that time. [ 46 ] As noted, Cook had some breach charges early on in his s. 810 recognizance and was thus on probation for those breaches beyond the expiry of the recognizance. He did relatively well otherwise in terms of not being breached, reporting as required for the most part. He self reported to Dr.

Woodside however that there were many occasions when he was non compliant with the drug and alcohol conditions. [ 47 ] Cook was given intensive support and supervision through this period by Forensic Services and Probation Services. [ 48 ] It has been noted by the Court the efforts made by Cook in finding employment at United Church Halfway Houses from January, 2004 to September, 2006. He was attending regular counseling with a Dr. Kolton of Forensic Services. Dr. Kolton had been his treating doctor and had indicated Mr.

Cook had been doing very well in terms of the length of his probation order, but when the probation order ended, he began to deteriorate. It was also noted he had been diagnosed with schizophrenia while incarcerated after 1997, but had been stabilized with medication. [ 49 ] Brendan Mirwalt of Forensic Services testified as to these efforts and other efforts by Native Clan to assist Cook in his spiritual

needs and counselling. [ 50 ] Mr. Obunembi Jackson testified as to Probation Services efforts in this time period which indicated substantial compliance with supervision and programming. Right up to August 5, 2007, the date of the first predicate offence, things seemed to be going relatively well, which was confirmed by Dr.

Kolton and information from Forensic Services. [ 51 ] The Court has reviewed these materials and is satisfied that by all appearances Cook appeared, after a lengthy period of dubious and unsteady but increasing stability, to be making some progress up to the summer of 2007, when things catastrophically unraveled for Mr. Cook and for his two victims of sexual assault and violence. Dr. Scott Woodside, Report and Testimony [ 52 ] Dr. Woodside prepared the Court Order of Assessment, filed. [ 53 ] Dr.

Woodside is a staff psychiatrist at the Centre for Addiction and Mental Health (CAMH), Law and Mental Health Program, Assessment and Triage Unit (ATU). Dr. Woodside obtained his Bachelor of Laws degree in 1986, University of Toronto, and his Doctor of Medicine in 1992 at McMaster University, as his professional education. [ 54 ] He obtained his Fellowship in Forensic Psychiatry at the University of Toronto in 1998. He has been with the CAMH in professional capacities since 1999 as a Senior Clinician and Staff Psychiatrist. Dr.

Woodside has reviewed Volumes 1 to 6 of the material filed in these proceedings and met with Mr. Cook for 5 hours on August 29, 2009. [ 55 ] Dr. Woodside has completed 70 to 80 Dangerous Offender or Long-Term Offender assessments in his career, and has an extensive background in treating and assessing sexual offenders. [ 56 ] The highlights of Dr.

Woodside’s detailed sixty-seven page report, which must be read in its entirety to get the full import, are as follows: • Cook was diagnosed with a number of disorders, being 1) Polysubstance Dependence Disorder (Alcohol, Cocaine, Marijuana) – primarily as it relates to alcohol, but also marihuana and cocaine. Dr. Woodside testified that polysubstance disorder and dependence is more difficult to treat than an alcohol of drug addiction.

He stated that it is a complicating feature of this disorder that as there are multiple dependencies, getting over one addiction can lead to substance abuse in another. 2) Anti-social Personality Disorder, with Borderline and Schizotypal Personality Traits – Anti-social personality disorders afflicts about 3% of males in the community, and includes traits of rejection or abandonment, instability in relationships, identity disturbance, self damaging impulsiveness, suicidal ideations, anger, feelings of emptiness and transient stress-related paranoid delusions, or severe dissociative symptoms. Mr.

Cook has been diagnosed many times in the past for this disorder, with possible schizoid traits, but Dr. Woodside believes that the Schizoid traits are a function more of psychopathy than schizophrenia. 3) Sexual Paraphilias and Sexual Sadism • Sexual paraphilia describes a sexual preference for an inappropriate sexual object or activity. Sexual paraphilias may at times cluster together, and individuals may have more than one.

The presence of alcohol or drug dependencies and an anti-social personality disorder will tend to reduce resistance to acting out on these preferences due to restraints on inhibition being lost, and be reduced by a treatment program. • Sexual sadism denotes a primary sexual preference for sexual arousement by fantasies, urges or acts of violence accompanying the sexual act. [ 57 ] Dr. Woodside states at page 54 of his report, “The evidence for sexual sadism is relatively clear and compelling, insofar as Mr.

Cook has repeatedly described violent sexual fantasies involving bondage, sexual coercion and his arousal to same. His history of fantasies in this regard is also consistent with his offence history, insofar as he has now been convicted of sexual assaults on four females.” [ 58 ] Dr. Woodside explains sexual sadism as lifelong disorder. Most sexual offenders do not have a sexual paraphilia and no more than a few percent are sexual sadists. He testified and reports that sexual sadism is generally considered to be the most difficult paraphilia to treat and that the prospects for Mr.

Cook, based on his various testing, background, response to previous treatment, attitude and other factors is “very poor”. Schizophrenia [ 59 ] Dr. Woodside indicates that although Mr. Cook has been diagnosed with schizophrenia in the past, “the evidence for this would appear to be quite limited.” [ 60 ] He believes that although it is possible Mr. Cook suffers from schizophrenia, his presentation is best accounted for by a combination of substance induced psychotic symptoms that he has self reported and the presence of schizotypal personality traits, involving magical beliefs.

He recommends continuation of medications in that regard as they may useful in reducing the impact of his borderline personality traits even in the absence of any underlying psychotic illness such as schizophrenia. [ 61 ] Armed with all this information and having interview Mr. Cook in person, essentially what Dr. Woodside undertook, in addition to a present day psychiatric diagnosis and assessment, is a “risk assessment”.

[ 62 ] In

summary, Dr. Woodside came to the following conclusions regarding Mr.

Cook’s principal criminogenic variables as follows: • Deficiencies in conscience development consistent with an antisocial personality disorder; • Substance dependence difficulties involving primarily alcohol, cocaine, and marijuana; • Inability to regulate aggressive affect, especially while intoxicated; • Sexual deviance (sexual sadism and possibly pedophilia); • Lack of educational and vocational achievement; • Association with criminally-oriented and substance abusing peers; and • Mental health issues (as outlined). [ 63 ] In addition to the psychiatric analysis of Mr. Cook, Dr.

Woodside also had regard to a number of standardized psychiatric tests were administered as follows: PCL-L R (psychopathic checklist) [ 64 ] Cook scored a 33 on a scale of 40. This indicates he is in the 94 th percentile of prison population. The test is highly predictive of future offending. The score of 33 indicates that Cook is “highly psychopathic”. Dr. Woodside testified and reported that there are no treatments available to reduce psychopathic recidivism, as they tend to not care for others, have an anti-authority stance and refuse to engage in programming or just go through the motions.

Violence Risk Appraisal Guide (VRAG) [ 65 ] Cook scored in the 92%-ile compared to male offenders in general. This instrument is considered one of the best actuarial instruments for predicting violence in male offenders. It is recommended for use in individuals with a prior history of violent offending and offers a probalistic estimate of risk of committing a further violent offence over a subsequent 10 year period. The number indicates likelihood of re-offending, with other variables such as non-reporting of sexual offences increasing the actual risk.

The probability of violent recidivism for Cook is expected to be in the 58% to 82% within 10 years of opportunity. Sexual Offender Risk Assessment Guide (SORAG) [ 66 ] Dr. Woodside notes this is one of the best tools for predicting future risk of sexual offending, although it has a smaller sample size. Mr. Cook scored in the 98 th percentile, compared to other sexual offenders. Offenders are at high risk of sexual offending again if over the 80 th percentile.

Taking into account all variables and adjustments necessary for the predictive ability of this test, Cook scored with an expected probability of violent recidivism expected to range between 80% and 100% within 10 years of opportunity. Static-99 [ 67 ] Mr. Cook scored in the 88 th percentile, again indicating high risk for sexual offending in the future. Cook scored in the highest category, category 6, indicating the highest risk category. He scored 8 out of a possible 12 on the Static 99 scale, which is higher than 88% of sexual offenders. Conclusion of Dr. Woodside on Future Risk [ 68 ] Dr.

Woodside concludes that “Overall, I would view Mr. Cook a being at high risk for non-sexually violent and sexually violent recidivism from a purely clinical perspective, as well as from an actuarial perspective”. [ 69 ] Dr. Woodside considers the provisions of s. 753 of the Criminal Code and the

definitions and has concluded that from a psychiatric perspective, Cook may meet at least some of the criteria for dangerous offender status. [ 70 ] Dr. Woodside concludes that Mr. Cooks` risk in the community cannot be managed at this time. He reports and testified that it would be speculative to determine Cooks` risk many years in the future, but that Cook would require long-term control and supervision to ensure community safety. [ 71 ] At page 62, “Overall, Mr. Cook`s primary diagnoses are considered difficult to treat, with a poorer prognosis being associated with each, aside from schizophrenia.

The combination of each of these diagnosis in concert renders the prognosis for successful treatment and reduction in his risk for further violent and or sexual offending very poor compared with other offenders.” [ 72 ] At page 65, when also reflecting on `Long Term Offender` status for Cook, “In

summary, I believe there is significant reason for pessimism, from a psychiatric perspective, regarding this individual`s future manageability within the community, even if strict conditions were put place and Mr. Cook were to agree to follow through with conditions and treatment recommendations.” V. LEGAL PRINCIPLES [ 73 ] It was conceded, and I accept, that the offences of sexual assault, choking to overcome resistance and sexual assault with a weapon to which guilty pleas are entered are predicate offences entitling the Crown to bring its application for a dangerous offender finding. There is no issue on this.

[74] The issues are as follows: 1) Determination as to whether or not Crown has met the onus of establishing that a dangerous offender finding should be made and ifso; 2) Whether a dangerous offender or long-term offender designation is appropriate. [75] The burden has been described as this: R. v. B. (D.V.), (April 20, 2010) 2010 ONCA 291 , [2010] O.J. No. 1577 (QL) (2010 ONCA 291; Ont. C.A. No.

C37727): 10 years ago, appellant then 37 was sentenced to a dangerous offender status for the last in a series of convictions for groping little girls.Trial Judge excluded a long term offender order because the period of control during the order was only a possible level of control overhis pedophilia mixed with impulsiveness, mental retardation and alcoholism during that time and that in any event at the end of theperiod he would be the same and he would relapse. [76] Appellant argued that Crown could use s. 810.2 of the Code to control appellant once the 10 years was over and cited a 2002BCCA decision where s. 810.2 was considered an adequate substitute for the possibility of parole by the Parole Board.

BCCA had sincestepped back from resort to that Code provision as a control feature.

ONCA here held that it was not correct to assume Parliamentenacted s. 810.2 to off-load on to s. 810.2 the important task of protecting the community from people who are highly dangerous andwho had been unable to satisfy the relatively modest requirements of s. 753.1(1)(c). [77] Parliament built a very substantial period of time for offenders to obtain the treatment they need to reduce their risk in thecommunity to an acceptable level of at least 12 years, encompassing the minimum 2 year incarceration threshold and the minimum longterm offender period.

A judge need not be satisfied that the risk posed by the offender will be controlled within the 12-year (or longer)time frame; all that is required is that there be a reasonable possibility that such control can be achieved. So if persons who areotherwise highly dangerous, cannot meet the relatively modest requirements of s. 753.1(1)(

c) in the generous time frame allotted byParliament, then in my view, they should be declared dangerous offenders and given an indeterminate sentence. In a context betweenindividual liberty and protection of the public the provisions favour the latter. [78] Further, ONCA rejected the suggestion that the sentence now involving 10 years in prison plus the prospect of more wasdisproportionate to the offences. Appellant was not a psychopath; he did not suffer from a personality disorder and his crimes weretouching and did not involve coercive, brutal and callous behaviour that typifies most dangerous offenders.

He claimed blameworthinesswas low because as a retarded pedophile he was unable, through no fault of his own, to control his sexual urges towards children. [79] ONCA said that if there was no reasonable possibility of eventual control of the risk posed by the offender in the community,then the long-term offender regime comes off the table and there is no need to travel further down the proportionality road. Proportionality was a factor for the alternative options being considered if control was possible. [80] In R. v.

Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357, the Supreme Court of Canada affirmed that the primary purpose of thedangerous offender regime is the protection of the public, noting that it was designed "to carefully define a very small group of offenderswhose personal characteristics and particular circumstances militate strenuously in favour of preventative incarceration" (para. 19)(emphasis added).

Further, the purpose of a long-term supervision order, “is to protect society from the threat that the offender currentlyposes -- and to do so without resort to the blunt instrument of indeterminate detention” (para. 32). Critically, at para. 40, the courtconcluded: “… a sentencing judge must take into account the long-term offender provisions prior to declaring an offender dangerous and imposingan indeterminate sentence.

If a sentencing judge is satisfied that the sentencing options available under the long-term offenderprovisions are sufficient to reduce the threat to the life, safety, or physical or mental well-being of other persons to an acceptable level,the sentencing judge cannot properly declare an offender dangerous and thereupon impose an indeterminate sentence, even if all of thestatutory criteria have been satisfied.” [81] It bears re-enforcing that realistically what is at play in many dangerous and long-term offender applications is an assessmentabout reducing the future threat an offender poses to an acceptable level, not to a level of guaranteeing no potential threat for that is animpossibly high bar. [82] In a dangerous offender application, the onus is on the Crown to prove beyond a reasonable doubt (

i) that the predicate offenceis “a serious personal injury offence”, and (ii) the likelihood of future reoffending, or future infliction of harm, that an offender presentsto society (R. v. Currie, (SCC), [1997] 2 S.C.R. 260). The second element, the likelihood of future reoffending andharm, is to be proven on the basis of evidence establishing at least one of four possible modes set out in the Code. [83] In this case, the Crown’s application relies on either of three specific modes to find a person a dangerous offender.

Asparaphrased by me, the Crown is attempting to establish either: • s. 753(1)(a)(i), a pattern of repetitive behaviour (including the predicate offence) showing a failure to restrain the behaviour and thelikelihood of causing harm through failure in the future to restrain that behaviour; or • s. 753(1)(a)(ii), a pattern of persistent aggressive behaviour, (including the predicate offence) showing a substantial degree ofindifference respecting the reasonably foreseeable consequences to other persons of the behaviour, or • s. 753(1)(b)…the offender, by his conduct in a sexual matter including that involved in the commission of the predicate offence, hasshown a failure to control his sexual impulses and a likelihood of causing injury, pain or other evil to others through a failure in thefuture to control his sexual impulses.

[ 84 ] The Crown is not attempting to prove behavior of a brutal nature (s. 753(1)(a)(iii)). Critical then to any analysis is the concept of a “pattern”. As explained by the British Columbia Court of Appeal in R. v. Dow , 1999 BCCA 177 , [1999] B.C.J. No. 569 (QL), specific to s. 753 .(1)(a)(i): “22. … So there must be a pattern revealed by repetitive behaviour; the pattern must contain an element that the dangerous behaviour was not restrained in the past; and there must be a likelihood that the same behaviour in the future will not be restrained and will cause death or injury . 23.

Each of those three elements must be present in the pattern and those three elements serve to define the relevant characteristics of the pattern for the purposes of subpara. 753(a)(i). But, necessarily, the description of the three elements in subpara. (

i) is couched in general terms. So, in any particular case, for the purposes of describing the pattern, each of the three elements may be particularized in a way that gives individuality to the pattern by indicating specific similarities between one incident and another. But it is important that the process of particularization not result in a level of detail which obscures the common characteristics which embody and reveal the three essential elements of the pattern. 24.

In short, the significance and the relevance of common elements of the pattern must be determined by whether they tend to show first, repetitive behaviour, second, that there has been a failure in each case to restrain the behaviour, and third, that there has been injury to other persons arising from that failure. If any of those three elements is missing, then there may be a pattern but it will not be a relevant pattern. But if all three are present then the essential elements of a relevant pattern are revealed . 25.

I add that it is the very essence of a pattern that there be a number of significant relevant similarities between each example of the pattern that is being considered, but that, at the same time, there may be differences between each example, some of them quite distinctive, so long as the differences leave the key significant relevant elements of the pattern in place. That is, after all, what is meant by a pattern. We talk of a pattern in dress-making.

That means that each example is assembled from pieces that are cut in the same proportions and that fact, in itself, is what constitutes the common element of the pattern. But the size of the pieces and of the assembled item of clothing, the fabric of which they are made, and the colour of the item of clothing may all be different without affecting the identity of the pattern. The same is true of patterns of decorative tiles, and of many other items. The aspects of the object which are relevant to a description of the pattern must all be similar in their essential characteristics.

But other aspects of the items, which are not essential to a description of the relevant pattern itself, may be markedly different from one example to another. 26. It follows from what I have said that I think that the sentencing judge erred in law when he said that it was a necessary part of the pattern in this case that the victim in every incident must have been "identified by Mr. Dow for the purposes of venting his rage against a person of the female gender". It is sufficient that all the victims were female and were violently assaulted in generally similar circumstances.

The fact that in the most recent incident the victim was not sexually penetrated is not a distinction which destroys the pattern, just as the fact that Dow knew Ms. M.V. before he raped her does not destroy the pattern which covers all the other incidents in which the person assaulted was unknown beforehand to Dow. 27. It also follows from what I have said that I think the sentencing judge erred in law when he said that "all of the parts of the [most recent] offence must be of like form, order or arrangement." That constitutes a degree of similarity that is more than is required to represent a relevant pattern.

As I have said, the three elements of subpara. (

i) of s. 753 (

a) must be present in the pattern, and should be described at a level of generality which gives individuality to the pattern, but beyond that it is not necessary that all of the parts of the most recent offence must be like all parts of the earlier offences, though further similarities may add vividness to the pattern.” [emphasis added] [ 85 ] Without specifically referring to pattern, some situations where dangerous offender designations were imposed include: • R. v. Little , 2007 ONCA 548 , 87 O.R. (3d) 683: Mr.

Little had 25 previous convictions, 10 of which were violence against female partners and others often involving use or supply of alcohol or drugs. Two sets of violent offences involved one partner and three sets, including the predicate offences, involved another subsequent partner. There was a stalking quality to these offences, which took place over a number of years. • R. v. Goforth , 2005 SKCA 12 , 257 Sask.R. 123: Mr. Goforth had 140 previous convictions, 18 of which involved violence. The predicate offence was assault with a weapon against a woman he had been drinking with. • R. v. Innocent , [2009] O.J.

No. 3663 (S.C.J.) (QL) : Mr. Innocent had a record of serious violence offences. The predicate offences included attempted murder of a police officer and assault with a weapon on another person. He had before been convicted of at least three separate major 'assault with a weapon' offences against prison guards, inmates and others. He also had done three separate robberies, one with significant violence. • Dow ( supra ): The predicate offence was break and enter into a house with the intent to commit robbery, but then attempting to kidnap the lone female occupant.

The offence took place in 1996, four years after his release from prison. He had previously been convicted of two counts of stranger rape from 1977 and one sexual assault rape of a friend from 1981. • R. v Shorting

(2011) MBQB 106 : The predicate offence was aggravated assault. The forensic psychiatrist in that case was also the same Dr. Woodside. Shorting had a lengthy record of near uninterrupted acts of community and institutional violence. • R. v. Atatise

(2011) MBQB277: There were three predicate offences, the most serious being a sexual assault, also sexual touching and uttering threats. Atatise had a criminal record of 50 offences including sexual assault and two convictions for sexual assault causing bodily harm. • R. v. Cook

(2010) MBQB237: The predicate offence was assault causing bodily harm against his elderly uncle. The offender had an extremely length record of near uninterrupted violence in the community and also in institutional settings. VI. ANALYSIS

[ 86 ] The Crown submits that Mr. Cook clearly meets the requirements for a dangerous offender designation under Criminal Code sections 753(1)(a)(i), 753(1)(a)(ii) and 753(1)(b), and opposes the defense position and that even if Mr.

Cook is found to have met that criteria, that the alternatives of a straight sentence or a long term offender designation in combination with a straight sentence are most in accord with the general purposes of principles of sentencing in compliance with the dicta in Johnson ( supra) . [ 87 ] It is understood and acknowledged that public safety concerns are never to be overshadowed in proceedings such as this: “It is critical to underscore that at no time in dangerous offender proceedings can public safety concerns be overshadowed.”, per R. v. Casemore , 2009 SKQB 306 , summarizing R. v.

Pontello [1997] O.J. 1624 (Ont. C.A.) . [ 88 ] Based on all the evidence presented, based on Cooks’ background, the Correctional and Probation reports and materials filed, Dr. Woodside’s evidence, both written and testimonial, and the evidence of supervisors, correctional, parole officials and social agency staff involved with Mr. Cook over the years, I find that: • Mr. Cook has an antisocial personality disorder overlaid with a substance abuse disorder. I find he has a psychopathic personality disorder and has defined and demonstrable sadistic tendencies, meeting the clinical definition of sexual sadist. Mr.

Cook has entered into several Correctional Services treatment programs before committing the predicate offences. He was on probation at the time for an offence of uttering threats to kill against a female victim. I find Mr. Cook to be at extremely high risk of committing further violent criminal acts of a sexual nature, and that this risk is one that is current, active and unlikely to be ameliorated in the short term, meaning for a number of years. • I find, beyond reasonable doubt, that Mr.

Cook will likely commit further criminal offences of a sexual and violent nature, consistent with his past established pattern of offences of violence and sexual violence to women in particular, if he were to be released from a prison setting. I find he has little insight, remorse or understanding of the need for treatment and programming. I am not reassured by the apparent ability of Mr. Cook to be candid, sometimes to his detriment; or his very late acknowledgement of the harm he has done and willingness to undergo further treatment or therapy. • There is a likelihood that one or more new offences that Mr.

Cook will commit will be violent or sexual in nature overall. The various actuarial tools are consistently predictive of this likelihood with Mr. Cook being very near the top of the scales on almost all the testing. The actuarial tools do not predict the type or severity of potential reoffending. For that one must look to Mr. Cook’s pattern of conduct. Dangerous Offender Analysis and Alternatives to Indefinite Detention [ 89 ] Mr.

Cook is in a difficult position to argue against a lack of “pattern”, the first element of the dangerous offender criteria, s. 735(1)(a)(i), and, in my opinion, the totality of that criteria has been met. [ 90 ] In terms of his pattern, he has committed four separate and distinct sexual assaults with violence on different women that he essentially preyed upon, an assault with a weapon and other offences of violence. His victims of violence include now five separate women. All four of his sexual assaults were major sexual assaults involving gratuitous violence that he seemed to take pleasure from.

He has a polysubstance abuse problem and was under the influence on each occasion. All of his victims were native middle aged females and he used weapons during most of his offences. His lack of restraint is clear again from the actual detailed facts of each crime, particularly the sexual crimes. The sadistic nature of each of these sexual crimes is apparent from a reading of the detailed facts upon conviction. His history of offending, response to programming and the comments to Dr. Kolton, of the Native Clan during his probationary periods following 2003, and to Dr.

Woodside and others during his court assessment phase, shows an utter lack of insight or remorse, and perhaps even an inability or lack of desire to affect needed behavioral changes; thus he presents as highly likely to commit the defined offences generalized in the wording of the sub section. [ 91 ] The language in ss. 735(1)(a)(ii) does not call for a pattern of aggressive behaviour but rather a pattern of persistent aggressive behavior , with the predicate offences being part of that pattern.

The facts of the sexual assaults are almost startling in their similarity and pattern leading to consistent conduct of sexual assaults mixed with violent and sadistic sexual behavior and desire. His institutional record supports the existence of such a pattern, marked by unrelenting disinterest, lack of cooperation, lack of insight or remorse, and results of treatment and programming that can only be described as utter failures.

The two separate sexual criminal offences previously and including the predicate offence, are sufficient to establish a pattern. [ 92 ] Aside from the comments in Dow , the plain meaning of pattern is found in the Merriam Webster Online Dictionary: “…. reliable sample of traits, acts, tendencies, or other observable characteristics of a person, group, or institution.” Further, while Mr. Cook’s antisocial personality and psychopathic traits demonstrate his lack of capacity for remorse, which may be interpreted as indifference, Mr.

Cook has stated on several occasions a desire to continue with his offending sexual behavior as a chosen and voluntary action . [ 93 ] The pattern is clear and meets any definition of that word. His indifference is clear from his own actions and his own words, both at the time of, just after and even long after the completion of the offence, showing a pattern of persistent aggressive behavior with a substantial degree of indifference, if not indeed complete and utter indifference, to the reasonably foreseeable consequences to others of that behaviour. [ 94 ] With regard to ss. 735(1)(

b) the evidence discloses that throughout his adult life Mr. Cook has failed to control his sexual impulses. He has clearly indicated on a number of occasions his preference for forced, non-consensual sexual activity and has acted on these impulses, without remorse or empathy on four separate occasions. The evidence is abundantly clear that his is at high risk to cause injury to others by a failure to restrain his impulses in the future. [ 95 ] There is a high likelihood that Mr. Cook will reoffend with new crimes of violence or of crimes of a sexual nature. I accept the evidence from Dr.

Woodside and his assessments of current and future risk and the likely effect of future treatment and programming, bearing in mind that sexual sadism is said to be near impossible to treat. The psychiatric and actuarial opinions of Dr. Woodside are clearly supported by the facts considered and psychiatric diagnosis made and the very clear result of all the diagnostic and actuarial

testing. In short, following the language and criteria of the Code, and considering the nature of the pattern characteristics and the offences from which they arise, I am satisfied beyond a reasonable doubt that Mr.

Cook constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing a pattern of repetitive behavior, of which the predicate offence forms a part, showing a failure to restrain the behavior and the likelihood of causing harm through failure in the future to restrain that behaviour. [ 96 ] Are there other options available other than indefinite imprisonment, as the general principles and purposes of sentencing requires the least restrictive measures, and the measures of a straight sentencing of a long-term offender designation, or both, available? [ 97 ] I cannot accede to the notion and representation by defence counsel that this dangerous offender, as I find him, has any real prospect of control and an acceptable level of risk so as to invoke the straight sentencing or long term offender options that are still available and to be considered.

I note that the concept in a long-term offender analysis of "a substantial risk” that the offender will reoffend is materially different than the concept in the dangerous offender analysis at play here, of an offender constituting a threat to life or safety based on evidence of “a likelihood” of committing further danger or harm which is based on a pattern of behaviour.

The requirement of "substantial risk" in a long-term offender analysis is broader and thus potentially captures more conduct or behaviour. [ 98 ] Second, to qualify as a long-term offender, instead of being a dangerous offender, the court must be satisfied there is a “reasonable possibility of eventual control of the risk in the community”. This goes back to the concept articulated by the Supreme Court of Canada in Johnson at para. 42 of that decision. There is no burden of proof regarding this.

Rather it is for me, as the sentencing judge, to review this issue based on the totality of the evidence and be satisfied, on evidence rather than hope or speculation, that Mr. Cook can be controlled in the community within a period of time. This is particularly so in circumstances where the significant basis for an expectation of reasonable control in the community is that an offender will "burn out" by growing older, as advanced by defence counsel.

There must be some specific evidence to support this notion, and I find the evidence in that regard to be lacking. [ 99 ] There cannot be mere “hope” that something will change in the distant future that the level of risk then would be likely become manageable. The submission of defence counsel that Mr. Cook has shown that he can live in the community as he did from 2003 to 2007 without “major” violations, combined with his somewhat better insight and increased candor when speaking with Dr.

Woodside, and other service providers during those years, is thin gruel to support the proposition that his extremely high risk to re-offend is plausibly manageable in a community setting on a prospective basis. [ 100 ] There is evidence, consistent with the empirical evidence on this, that Dr. Woodside expects Mr. Davis's propensity for re- offence, particularly violent re-offence, to decline with age but that the risk decline is muted by the diagnosis of sexual sadism, which is near to untreatable.

This essentially untreatable mental psychopathic affliction, and high risk levels of recidivism associated with it, is a severe type of psychopathic personality disorder. The multiple psychopathic and personality disorder diagnosis and the general risk of criminal recidivism associated to such a person as Mr. Cook with such personality complexes is extremely high. [ 101 ] The bottom line for Mr.

Cook is that the evidence as a whole clearly and overwhelmingly demonstrates beyond a reasonable doubt that he is, as statutorily defined, a dangerous offender, and that an indefinite term of imprisonment is the only option to ensure public safety, consistent with the purpose and intent of

Part 24 of the Criminal Code . VII. CONCLUSION [ 102 ] I conclude that Mr. Cook is a dangerous offender. I find that he meets all of the criteria advanced by the Crown to be so designated. I reject the alternative sentencing options of a straight sentence or a long term offender designation. [ 103 ] I sentence Mr. Cook to an indefinite term of imprisonment. [ 104 ] It should be noted that the effect of the indefinite term of imprisonment will not mean that Mr. Cook will have the key thrown away.

Pursuant to the Correctional Service of Canada Act and operation of parole regulations, Cook is eligible to apply for parole as early as August 5, 2014, (7 years after the first predicate offence) and his status is reviewable by law every 2 years thereafter. The parole review process for indeterminately sentenced offenders ensures the sentence is tailored to fit the circumstances of the individual offender.

In order to be returned to the community, a dangerous offender must demonstrate to the National Parole Board a “readiness to return to the community” by participating in his correctional plan and treatment interventions, and there must be a conclusion of a diminished risk so that public safety is not compromised. [ 105 ] In contrast Long Term Offender designation would mean that Mr. Cook will be released at Warrant Expiry Date (if detained) and supervised in the community regardless of success or involvement in his correctional plan and regardless of treatment interventions.

This is not an advisable option to risk in the case of Mr. Cook. [ 106 ] If Mr. Cook were to be given a straight sentence, for example in a hypothetical sentence of 14 years imprisonment which was suggested in this hearing, this would make Mr. Cook eligible for parole release in approximately November, 2014. [ 107 ] As I have said I reject these options in favour of an indeterminate sentence of imprisonment. [ 108 ] Pursuant to s. 760 of the Code I further order that a copy of the report and testimony of Dr.

Woodside, this decision, and a transcript of the trial be forwarded to Corrections Canada for their information. I make the following additional orders:

(1) Pursuant to s. 109 of the Code , Mr. Cook shall be prohibited from possessing any weapon as described therein for life;

(2) Pursuant to s. 487 of the Code , Mr. Cook shall provide a sample of his DNA to authorities within 14 days; and

(3) Pursuant to s. 490.013 of the Code , Mr. Cook shall comply with the Sex Offender Information Registration Act , S.C. 2004, c. 10, for 20 years.

Original signed by: Fred Sandhu, P.C.J.