HER MAJESTY THE QUEEN — v. —, 2018 ONCJ 309

ONTARIO COURT OF JUSTICE CITATION : R. v. Ariyanayagam, 2018 ONCJ 309 DATE : May 9, 2018 Scarborough - Toronto BETWEEN: HER MAJESTY THE QUEEN — AND — THUSANTH ARIYANAYAGAM ) ) ) ) ) ) ) ) ) ) ) ) ) ) For the Crown J. Battersby For the Offender A. Balachandran Heard: May 8, 2018 RULING RUSSELL SILVERSTEIN, J.: A. INTRODUCTION [ 1 ] Mr. Ariyanayagam (the offender) has pleaded guilty before me to three counts of assault, one count of assault with a weapon and two counts of failing to comply with a recognizance. [ 2 ] Ms.

Battersby has given notice of her intention to seek a dangerous offender designation, or in the alternative, a long-term offender designation against Mr. Ariyanayagam. The Crown now seeks an assessment order pursuant to s. 752.1 of the Criminal Code which reads as follows: 752.1

(1) On application by the prosecutor, if the court is of the opinion that there are reasonable grounds to believe that an offender who is convicted of a serious personal injury offence or an offence referred to in paragraph 753.1(2)(

a) might be found to be a dangerous offender under

section 753 or a long-term offender under

section 753.1, the court shall, by order in writing, before sentence is imposed, remand the offender, for a period not exceeding 60 days, to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under

section 753 or 753.1. [ 3 ]

Section 753 governs the test the Court must ultimately apply where the Crown seeks a dangerous offender designation. It reads as follows:

(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

section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing (

i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or (iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender's behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; 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. [ 4 ]

Section 753.1 governs the test the Court must ultimately apply where the Crown seeks a long-term offender designation. It reads as follows:

(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that (

a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted; (

b) there is a substantial risk that the offender will reoffend; and (

c) there is a reasonable possibility of eventual control of the risk in the community.

(2) The court shall be satisfied that there is a substantial risk that the offender will reoffend if (

a) the offender has been convicted of an offence under s. 151 (sexual interference), 152 (invitation to sexual touching) or 153 (sexual exploitation), ss. 163.1(2) (making child pornography), ss. 163.1(3) (distribution, etc., of child pornography), ss.163.1(4) (possession of child pornography), ss. 163.1(4.1) (accessing child pornography), s. 172.1 (luring a child), ss 173(2) (exposure) or s. 271 (sexual assault), 272 (sexual assault with a weapon) or 273 (aggravated sexual assault), or has engaged in serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted; and (

b) the offender (

i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender's causing death or injury to other persons or inflicting severe psychological damage on other persons, or

(ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted,has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences. [5] The offender has no prior criminal record. Yet Ms. Battersby submits that the details of the offender’s criminal behaviour inthe case at bar, along with the offender’s history of mental illness support the proposition that there are reasonable grounds to believethat the offender might be found to be a dangerous or long-term offender. [6] Mr.

Balachandran argues that no assessment should be ordered. He submits that the repetitive behaviour exhibited by theoffender, even taking his mental health history into account, is simply not serious enough to give rise to a finding that the offender“poses a high likelihood of harmful recidivism” nor that “his conduct is intractable”. R. v. Boutilier, 2017 SCC 64 , [2017]S.C.J. No. 64 at para.27 B. THE CIRCUMSTANCES OF THE OFFENCES [7] On March 18, April 11 and April 18, 2016 the offender committed three markedly similar offences.

He entered three differentapartment buildings and stalked various women as they came and went in the lobbies and the elevators. Eventually he followed one ofthem onto the elevator on each of the three occasions and attacked them from behind as they walked to their apartments. [8] The offender was arrested on April 20, 2016 and charged with the three assaults. He was released on a recognizance on May5, 2016. [9] On June 4, 2017 the offender, in breach of his bail curfew, at around 12:57 a.m. again entered the lobby of another apartmentbuilding.

After spending several hours there he followed a woman to her apartment and shot her twice with a pellet gun. C. THE OFFENDER’S MENTAL HEALTH HISTORY [10] The offender’s first documented mental health disturbance arose on September 10, 2014 when he was brought to theScarborough Hospital by his sister, who had observed paranoid and bizarre behaviour on his part over the previous six months,culminating in him holding knives and saying he wanted to die. He was examined and released from hospital. [11] Several days later, on September 16, 2014 he was examined by Dr.

Gatzer who wondered about the beginning of a psychoticprocess. [12] The next day, September 17, 2014, the offender was again admitted to the Scarborough Hospital after being brought there on aForm 2 by Toronto Police. The offender had become violent at home and had held a knife to his mother’s throat. A course of drugtreatment was initiated and he was discharged seven days later. [13] The offender’s family physician, Dr. Rajeswaren continued to care for him. There is evidence in his notes that the offendercontinued to display bizarre behaviour in late 2014 and 2015. Dr.

Rajeswaren diagnosed him as suffering from “anxiety neuroses,hysteria, neurasthenia, obsessive compulsive neurosis and reactive depression”. [14] The offender was arrested in October 2015 and charged with offences for carrying a knife and a steel bar. These charges wereeventually withdrawn as part of a mental health diversion. [15] In April 2016 Dr. Rajeswaren referred the offender to a psychiatrist, Dr. Kakar, who reported that the offender had, againstmedical advice, stopped taking the medication prescribed for him at the hospital in 2014. Dr.

Kakar’s report of April 7, 2016 documentscontinuing delusional, paranoid and violent behaviour at home. He diagnosed the offender as suffering from “schizoaffective disorderbipolar type, poly substance abuse and legal discord” and put him on a course of the drug, Abilify. [16] Dr. Kakar saw the offender again on July 27 and September 16, 2016. He reported that the offender was “totally asymptomaticin remission and stable”. Dr. Kakar does not seem to have been informed of the offender’s criminal behaviour that had taken placeshortly before these visits. [17] Dr.

Kakar’s reports generated in July, 2017 refer to ongoing auditory hallucinations, persecutory delusions and formal thoughtdisorder. There is reference to the offender having occasional thoughts of “hurting others”. There is a passing reference to the June 4,2017 assault with a weapon. Dr. Kakar, presumably referring to the offender’s self-report, says: “He was at that time [July 1, 2017] having some thoughts of hurting other people denied any intent or plan. He had good self-control andhas never been violent in his life except one episode with a BB gun.” D.

THE LEGAL PRINCIPLES AND THEIR APPLICATION TO THE OFFENDER [18] The threshold for ordering an assessment pursuant to s. 752.1 has been considered in several cases. In R. v. McArthur, [1997]O.J. No. 5146 (Gen. Div.) Laforme J., as he then was, expressed it as follows:

It is my opinion that on an application brought pursuant to s. 752.1 the only onus and burden of persuasion on the Crown is to satisfy thecourt that there are reasonable grounds to believe that the offender might be a dangerous offender. In other words, the question the courtmust answer is based on the circumstances and evidence, is it a logical conclusion that there is a possibility the offender might be foundto be a dangerous offender?

Moreover, as the test for an assessment does not involve any finding of fact that the offender is, at this stage,a dangerous offender, the onus on the Crown is not that which is expressed in either the criminal or civil standards of proof. Rather, inmy view, it is simply this: is the court satisfied, after weighing and balancing all the relevant considerations, including the evidence, thatthe offender should be remanded for observation? [19] This test was adopted in several cases in the years that followed. See R. v. Simon, [2000] O.J. No. 4741 (Sup. Ct.) and R. v.Ward, [2003] O.J. No. 2582 (Sup.

Ct.). [20] Hill J. addressed the issue in R. v. Naess, [2005] O.J. No. 936 (Sup. Ct.) at para. 77 where he said: I am inclined to the view that s. 752.1(1) obliges the court, on the totality of the circumstances, to determine whether reasonable groundsexist, in the sense of a real possibility the accused will be found to be a dangerous offender. As minimal as the standard is, it issomething more than simply any possibility or a remote prospect only. The intrusion of the assessment frequently with prolongedcustody, and its availability to the Crown in sentencing (s. 752.1(2)), demands nothing less. . [21] In R. v.

Vandewal, 2010 ONSC 265 , [2010] O.J. No. 246 (Sup. Ct.) at paras. 25 – 27 Roccamo J. resolved thesomewhat divergent approaches as follows: On the one hand, there is the reasoning adopted by the Saskatchewan Court of Appeal in R. v. Fulton (2006), 2006 SKCA 115 ,289 Sask. R. 98 at para. 21, as echoed by Justice Wilson in R. v. Torres, [2007] O.J. No. 1402 (Sup. Ct.) that the Crown only need showthat there is a possibility that the offender might be found to be a dangerous offender or a long-term offender. On the other hand, a line of cases from this court including R. v. Naess, [2005] O.J. No. 936 (Sup.

Ct.); R. v. Jones, [2007] O.J. No. 1591(Sup.Ct.) at para. 20 and R. v. Smyth, [2007] O.J. No. 1946 (Sup. Ct.) has concluded that there must be some 'real' possibility, or'credibly-based possibility' that the person can be declared a dangerous offender or long-term offender. Despite the different language employed by these courts, I am not convinced that, at the end of the day, there is any material differencein the analysis required of an application judge in this instance. It is universally agreed that the threshold is a low one.

It is less than thecivil burden of proof and far less than the criminal burden of proof. The language in

section 752 requires the court to consider the totalityof the record of evidence and information in support of the application to decide whether there are reasonable grounds to believe theoffender might, not will, be found a dangerous offender or a long-term offender. To require any more at this stage of proceedings is torun the risk that a sentencing justice must come close to making findings on an incomplete body of evidence and without the benefit ofthe assessment proposed under

section 752.1. To that extent only, I would echo the sentiments of Justice Wilson in R. v. Torres that torequire more of a sentencing judge, at this stage, "requires [him or her] to guess using imprecise standards with imprecise information."(para. 27) [22] I agree with Rocammo J.

In my view, whether there are reasonable grounds to believe that the offender might be found to be adangerous offender is no different a test from whether there is a real possibility that the offender will be found to be a dangerousoffender. [23] No assessment order can be made unless the offender meets all the threshold criteria for either dangerous offender or long-termoffender status. R. v. Steele, 2014 SCC 61 , [2014] S.C.J. No. 61 [24] Dangerous offender designations are reserved for offenders who have been convicted of a serious personal injury offence(SPIO). As Mr.

Balachandran concedes, the offender has clearly been convicted of a SPIO as defined in s. 752. Assault with a weapon isan indictable offence punishable by ten years or more, and the offender used violence against another person in the commission of theoffence. R. v. Steele, supra. [25] Mr. Balachandran also concedes that the Crown could prove a pattern of repetitive behaviour, of which the offence for whichhe has been convicted forms a part. [26] Where the Crown and defence

part company is on the question of whether there is a real possibility that I will be satisfied thatthe offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of a pattern of criminalbehaviour showing a failure to restrain his behaviour and a likelihood of causing death or injury to other persons, or inflicting severepsychological damage on other persons, through failure in the future to restrain his behaviour. [27] The Supreme Court recently interpreted this test in R. v. Boutilier, 2017 SCC 64 , [2017] S.C.J.

No. 64 at para 27: ….Before designating a dangerous offender, a sentencing judge must still be satisfied on the evidence that the offender poses a highlikelihood of harmful recidivism and that his or her conduct is intractable. I understand "intractable" conduct as meaning behaviour thatthe offender is unable to surmount…

[ 28 ] The threshold is high, and for good reason. A dangerous offender designation renders the offender eligible for a sentence of indeterminate detention. As Nordheimer J. (as he then was) said in R. v. P.H. , [2005] O.J. No. 5698 (Sup. Ct.) at para. 32 : I accept the Crown's point that the threshold for obtaining an assessment order in not a high one. At the same time, however, the threshold ought not to be placed so low that it will result in an assessment order being made in virtually any case where the underlying offences are disturbing or upsetting.

The assessment order is the starting point for the dangerous offender and long-term offender application. It puts into play a time consuming process that may ultimately lead to the imposition of one of the, if not the, most serious penalties available for an offender.

It seems to me that it is the responsibility of the court to act as a gatekeeper regarding such applications to ensure that the process is not put in motion except in those cases where there is a reasonable prospect that the relief sought might actually be granted, that is, where there is a real possibility, to use the language from Naess , that an application for either designation might be successful. [ 29 ] That said, in my opinion there is every reason to believe that either a dangerous offender or long-term offender designation is a real possibility in the offender’s case. [ 30 ] While it is true that the offences that he has committed are not at the most serious end of the spectrum, and he has no prior criminal record, the bizarre and repetitive nature of his offences, along with the violent manifestations of his ongoing mental illness may support a finding that he poses a high risk of further dangerous and harmful criminal behaviour.

The self-reported violent ideation associated with his mental illness might support a finding that the offender is vulnerable to irresistible violent motivation. This combination of findings might well support a dangerous offender designation. [ 31 ] As far as the long-term offender designation is concerned, for the reasons that I have articulated regarding the dangerous offender designation I find that there are reasonable grounds to believe that the offender might be designated a long-term offender. [ 32 ] I hasten to add that I am not drawing any conclusions as to the ultimate issue, i.e. is Mr.

Ariyanayagam a dangerous or long- term offender. I merely find that on the evidence before me at this juncture, an assessment pursuant to s. 752.1 is in order. [ 33 ] I understand that counsel agree that Dr. Phillip Klassen is an appropriate choice of expert to conduct the assessment. E. CONCLUSION [ 34 ] In the result I order that Mr. Ariyanayagam be remanded for a period not exceeding 60 days, to the custody of Ontario Shores Centre for Mental Health for the purposes of an assessment by Dr. Phillip Klassen for use as evidence in an application under

section 753 or 753.1 Released on May 9, 2018 Justice Russell Silverstein