R. v. Martin, 2014 NSPC 124

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Martin, 2014 NSPC 124 Date: August 18, 2014 Docket: 2050000-6 Registry: Dartmouth Between: Her Majesty the Queen v. James JOSEPH Martin Publication Ban A ban on publication under

section 486.4 & 486.5 has been ordered. Bans ordered under these sections direct that any information that will identify the complainant, victim or witness shall not be published in any document or broadcast or transmitted in any way. No end date for the Ban stipulated in these sections. Reporting of this proceeding in any manner that would identify the name of any individual whose name is covered by the Ban is strictly prohibited without leave of the Court.

The intent of the foregoing is to protect the welfare of any children or victims referred to in the proceeding and/or avoid prejudice to any persons facing criminal charges PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Martin 2014 NSPC 124 Date: August 18, 2014 Docket: 2050000-6 Registry: Dartmouth Between: Her Majesty the Queen v.

James JOSEPH Martin Library Heading Judge : The Honourable Frank P. Hoskins Decision : August 18, 2014 Subject : Sentencing - Dangerous offender classification - Indeterminate sentence Editorial Note : This decision has been edited for punctuation, grammar and readability.

Summary: The accused pled guilty to sexual assault, uttering threats, theft under $5000, attempting to choke, suffocate or strangle a person, and two counts of failing to comply with a Long-Term Offender Supervision Order. The accused had an extensive criminal history which included numerous violent and sexual offences, and had been subject to a Long-Term Offender Supervision Order at the time of the offences. The Crown brought an application to have the accused declared a dangerous offender and sentenced to an indeterminate sentence.

The accused conceded to the dangerous offender classification but argued that a sentence of 5-10 years should be imposed followed by a Long Term Supervision Order. Issue : The issue was whether the appropriate disposition for the accused was a determinate or indeterminate sentence. The criteria necessary to classify the accused as a dangerous offender under s. 753 of the Criminal Code was met.

The Crown established that the accused was convicted of a serious personal injury offence as described in s. 752 and that the second factor was made out using either s. 753(1)(a)(i), (ii) or s. 753(1)(b), as the accused constituted a threat to the life, safety, and physical or mental well-being of others. Result: There is no burden on the accused to establish that there is a reasonable expectation that a lesser measure under s. 753 (3) will adequately protect the public against the commission by the offender of murder or another serious personal injury offence.

The court must thoroughly consider all of the evidence no matter who adduces it. The totality of evidence included the accused’s past behaviour, psychiatric condition, attitude, amenability to treatment and supervision, and the expert opinion evidence and risk assessment. In particular, the expert psychiatric evidence suggesting an insusceptibility to treatment and the accused’s history of violent sexual offences and failure to comply with community supervision orders.

The evidence adduced during the hearing of the application did not establish a reasonable expectation that a sentence less severe than an indeterminate sentence would adequately protect the public. The accused was sentenced to an indeterminate sentence pursuant to s. 753 (4) (

a) of the Criminal Code . This information sheet does not form part of the Court’s decision. Quotes must be from the decision, not this library sheet.

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Martin 2014 NSPC 124 Date: August 18, 2014 Docket: 2050000-6 Registry: Dartmouth Between: Her Majesty the Queen v. James JOSEPH Martin Decision Judge : The Honourable Frank P. Hoskins Decision : August 18, 2014 Charges : That on or about the 15 th day of May, 2009, at or near Dartmouth, Nova Scotia, did unlawfully assault A.M.C., contrary to

section 266 of the Criminal Code . And Further that he at the same time and place aforesaid, did knowingly utter a threat to A.M.C. to cause death or bodily harm to the said A.M.C., contrary to

section 264.1(1) (

a) of the Criminal Code . And Further that he at the same time and place aforesaid, did unlawfully commit a sexual assault on A.M.C., contrary to section 271(1) (

a) of the Criminal Code . And Further that he at the same time and place aforesaid, did unlawfully steal a motor vehicle, to wit, a 2003 Ford Focus, of a total value not exceeding $5,000.00, the property of A.M.C., contrary to

section 334 (

b) of the Criminal Code . And Further that he at the same time and place aforesaid, did attempt to choke or suffocate or strangle A.M.C. by placing his hands around her mouth and neck, contrary to

section 246 (

a) of the Criminal Code . And Further that he at the same time and place aforesaid, while bound by a Long-Term Offender Supervision Order issued on the 14 th day of April, 2000, did wilfully fail without reasonable excuse to comply with such order, to wit, “reveal any intimate relationships with women to your CSC supervisor” contrary to

section 753.3(1) of the Criminal Code .

And Further that he at the same time and place aforesaid, while bound by a Long-Term Offender Supervision Order issued on the 14 th day of April, 2000, did wilfully fail without reasonable excuse to comply with such order, to wit, “obey the law and keep the peace” contrary to

section 753.3(1) of the Criminal Code . Counsel : Melanie Perry for the Crown Michelle James for the Crown J. Patrick Atherton for Defence By The Court: [ 1 ] This is the decision in relation to the Crown’s application to have Mr. James Joseph Martin declared a dangerous offender and sentenced to an indeterminate period of detention. Mr. Martin is opposed.

He submits that the application should be dismissed and that a determinate sentence and Long Term Supervision Order ( LTSO ) be imposed. [ 2 ] This decision had been reserved for several months, mainly, to provide the Court with the opportunity to review thousands of pages contained in fourteen volumes of material relating to Mr.

Martin which were tendered as exhibits in the hearing. [ 3 ] Although this matter has been before the Court for an inordinate amount of time, each adjournment was granted for appropriate reasons and I am indebted to Counsel for their able submissions which were clear, concise and thoughtful. [ 4 ] In my view, while it is always preferable to expedite matters in an efficient and effective manner, occasionally a matter such as this application, which involved reading thousands of pages of documents, requires patience, diligence and much more time, particularly given the serious nature of the proceedings.

Unfortunately, in Provincial Court, where court dockets are extremely busy and resources are stretched, it is often difficult to expedite matters involving immensely serious issues coupled with voluminous materials. For that reason, I wish to acknowledge the assistance of Counsel in cooperating with each other and with the Court in trying to expedite this proceeding, without prejudicing their respective interests.

Your cooperation is much appreciated, as was your diligence and commitment to the professional traditions of the Bar. [ 5 ] In this case, the defence does not dispute that on the totality of the evidence, the Crown has established that Mr. Martin should be declared a dangerous offender. Mr. Atherton, for the defence, however, submits that while the dangerous offender designation is for Mr. Martin, he opposes the Crown’s request to have Mr. Martin sentenced to an indeterminate sentence. He contends that the appropriate disposition for Mr.

Martin is not an indeterminate sentence, but rather a determinate sentence in the range of five to ten years, followed by a long-term offender supervision order. [ 6 ] Thus, the central issue in this case is whether the appropriate disposition for Mr. Martin is a determinate or an indeterminate sentence. [ 7 ] In considering this issue, I have carefully considered the following:

a) the statutory framework for the application;

b) the nature of the hearing, standard of proof and manner of proof;

c) the nature and quality of the evidence adduced at the hearing;

d) Mr. Martin’s personal history;

e) the particulars of the predicate offence that forms the foundation of the application;

f) the previous criminal offences for which Mr. Martin has been convicted, particularly the offences involving violence;

g) Mr. Martin’s response to and conduct surrounding past treatment and/ or supervision;

h) a review of the psychiatric evidence and assessment report of Dr. Neilson;

i) whether the Crown has proven, beyond a reasonable doubt, the statutory criteria set out in s. 753 of the Criminal Code , and

j) whether there is a “ reasonable expectation that a lesser measure will adequately protect the public against the commission by the

offender of murder or a serious personal injury offence. The Procedural Requirements [ 8 ] There are a number of conditions precedents that must be satisfied before the Court can consider a dangerous offender application. In this case, all of the procedural requirements have been met. [ 9 ] On May 21, 2010, Mr. Martin pleaded guilty to four indictable offences contained on a seven count Information. Two of the four offences for which he pleaded guilty are serious personal injury offences as defined in sections 752 and 753 of the Criminal Code .

He pleaded guilty to sexual assault, contrary to s. 271(1) of the Criminal Code , which imposes a maximum punishment for a term not exceeding 10 years of imprisonment. And he pleaded guilty to the offence of attempts, by any means, to choke, suffocate or strangle another person, contrary to s. 246 of the Criminal Code, which imposes a maximum punishment of life imprisonment. [ 10 ] It was acknowledged by counsel for Mr.

Martin that the predicate offences were serious personal injury offences as defined by s. 752 of the Criminal Code . [ 11 ] These two predicate offences were committed on May 15, 2009, in Dartmouth, Nova Scotia, against the same victim, A.M.C.. [ 12 ] Pursuant to s.752.1 of the Criminal Code , an Assessment Report was ordered on May 21, 2010, and an extension was granted on July 13, 2010. The report was prepared and filed with the Court on August 12. 2010. The assessment was performed by Dr. Grainne E. Neilson, a forensic psychiatrist with the East Coast Forensic Hospital. Dr.

Neilson testified as an expert witness in this hearing. Her qualifications were not contested by the defence.

She was qualified as a forensic psychiatrist able to provide opinion evidence in psychiatry including but not limited to: the practice and treatment of mental disorders; the diagnosis and classification of violent and/or sexual offenders; the assessment of risk for future offence and recidivism for violent and/or sex offenders; the treatment of violent and sexual offenders; and the risk of psychological harm to victims caused by sexual and/or violent offenders. [ 13 ] The consent of the Attorney General to make this application was obtained in accordance with s. 754(1)(

a) and filed with the Court. [ 14 ] Mr. Martin was promptly notified of the Crown’s application, in accordance with s. 754(1) (

b) of the Criminal Code . The written Notice of Application was served within seven days in advance of the hearing, and properly outlined the basis on which the application was being made. The Notice of Application was filed with the Court. [ 15 ] On June 24, 2013, the application commenced. The Law [ 16 ] Before embarking upon an analysis of the central issues in this case, I will touch upon the relevant statutory provisions, and case law, followed by a review of the evidence adduced in the hearing, which includes a review of Dr. Neilson’s evidence.

The Statutory Framework [ 17 ] The Criminal Code sets out the process by which an offender may be declared and sentenced as a dangerous offender. In essence, this process requires:

a) the Crown to establish that the conditions precedent to the application have been complied with;

b) the Crown to prove beyond a reasonable doubt that the convicted offender meets one or more of the four

definitions of a dangerous offender, and,

c) if the Court determines the conditions precedent have been met, and that the offender fits within one or more of the

definitions, then the Court must decide if an indeterminate sentence is appropriate or if a lesser penalty will adequately protect the public. [ 18 ]

Part XXIV of the Criminal Code provides a sentencing regime for dangerous and long-term offenders. First enacted in 1947, these provisions of the Criminal Code have been amended in 1997, and most recently in July 2, 2008. [ 19 ] Prior to 1997, if the offender met one or more of the

definitions of a dangerous offender, then the court was required to make the designation. The court had the discretion to impose either a determinate or indeterminate sentence. [ 20 ] In 1997, the concept of a Long-Term Offender was introduced. The court was given the discretion not to declare a convicted offender to be a dangerous offender, even if the offender met one or more of the

definitions. Instead, the offender could be designated a long-term offender and sentenced to a determinate sentence, followed by up to ten years of supervision in the community. The court’s discretion was primarily influenced by whether there was a reasonable possibility of eventual control of the accused’s risk in the community ( see s. 753.1(1)(

c) and R. v. Johnson, 2003 SCC 46 ). If the court declined to exercise its discretion, the offender was declared a dangerous offender and sentenced to a mandatory period of indeterminate custody. [ 21 ] The effect of the 2008 amendments has shifted judicial discretion to the sentencing stage. Once the court declares an offender to be a dangerous offender , there are three possible sentences available: (

i) an indeterminate sentence, (ii) a determinate sentence coupled with a long-term supervision order, and (iii) an indeterminate sentence. However, it should be stressed that s. 753(4.1) of the Criminal Code limits this discretion regarding sentencing; in that, it creates a statutory presumption that an indeterminate sentence shall be

imposed unless the court is satisfied on the evidence that there is a reasonable expectation of that a lesser measure will adequatelyprotect the public against the commission by the offender of murder or a serious personal injury offence. The lesser measures includeeither a determinate sentence with up to ten years of supervision, or a determinate sentence with no supervision order. The Purpose of the Dangerous Offender Regime [22] The primary purpose of the dangerous offender regime is the protection of the public. (R. v. L.(T.P.), (SCC),[1987] 2 S.C.R. 309.

In L. (T.P), La Forest J. explained that preventive detention under the dangerous offender regime goes beyond whatis justified on a “just deserts” rationale based on the reasoning of a given case, the nature of the crime and the circumstances of theoffender call for the elevation of the goal of protection of the public over the other purposes of sentencing. LaForest, J. confirmed atpara. 44 that the legislation was designed, “to carefully define a very small group of individuals whose personal characteristics andparticular circumstances militate strenuously in favour of preventive incarceration”. [23] In R. v.

Jones, (1994) (SCC), 89 C.C.C. (3d) 353, Gonthier, J., in delivering the judgment for the SupremeCourt of Canada, at p. 396, wrote:

Section 753 seeks to protect society against offenders who constitute "a threat to the life, safety or physical or mental well-being of otherpersons". As La Forest J. noted at pp. 328-29 of Lyons: It must be remembered that the appellant was not picked up off the street because of his past criminality (for which he has already beenpunished), or because of fears or suspicions about his criminal proclivities, and then subjected to a procedure in order to determinewhether society would be better off if he were incarcerated indefinitely.

Rather he was arrested and prosecuted for a very serious violentcrime and subjected to a procedure aimed at determining the appropriate penalty that should be inflicted upon him in the circumstances. ... It is thus important to recognize the precise nature of the penological objectives embodied in

Part XXI. It is clear that the indeterminatedetention is intended to serve both punitive and preventive purposes. Both are legitimate aims of the criminal sanction. Indeed, whensociety incarcerates a robber for, say, ten years, it is clear that its goal is both to punish the person and prevent the recurrence of suchconduct during that period. Preventive detention in the context of

Part XXI, however, simply represents a judgment that the relativeimportance of the objectives of rehabilitation, deterrence and retribution are greatly attenuated in the circumstances of the individualcase, and that of prevention, correspondingly increased. [24] The Supreme Court of Canada in Johnson, at para. 20, reaffirmed that the “indeterminate detention under the dangerousoffender regime is warranted only insofar as it actually serves the purpose of protecting the public”. [25] The aim of the provisions is not punishment but rather the prevention of future violence and the protection of the public frompotentially dangerous offenders (Jones). [26] Recently, Cromwell J., in delivering the judgment of the Supreme Court of Canada, in R. v.

Sipos, 2014 SCC 47 , 2014S.C.C. 47, commented on the legal framework of the dangerous offender and long-term offender regimes. At paras. 19 to 23 he wrote: The dangerous offender and long-term offender provisions found in

Part XXIV of the Criminal Code are both examples of preventivesanctions. While they may only come into play once the offender has been convicted of offences of a certain degree of seriousness, theirfocus is on imposing special measures on the offender in order to address an elevated risk of future offending. A dangerous offender maybe sentenced to an indeterminate sentence of imprisonment; this is preventive detention in its clearest and most extreme form. A long-term offender may be sentenced for the underlying offence and, in addition, to a long-term supervision order not to exceed 10 years.

Thisis a preventive sanction that is finite in length and built on supervision in the community. For the purposes of this appeal, s. 753(1)(

b) is the relevant provision in relation to Mr. Sipos' designation as a dangerous offender. Beforethe designation may be imposed, the offence for which the offender has been convicted must be a "serious personal injury offence".Serious personal injury offences include offences involving the use or attempted use of violence for which the offender may be sentencedto imprisonment for at least 10 years and a number of specified sexual offences: s. 752. There is no question that Mr. Sipos' convictionsqualify. The remaining elements required for the designation are both retrospective and prospective.

The offender must be shown to havefailed in the past "to control his or her sexual impulses" and, in the future, that there is "a likelihood of causing injury, pain or other evilto other persons through failure in the future to control his or her sexual impulses": s. 753(1)(b). The long-term offender provisions permit the court to impose a sentence for the offence for which the offender has been convicted andorder that he or she be subject to long-term supervision for a period that does not exceed 10 years: s. 753.1(3).

In order to make a long-term offender designation, the court must be satisfied that it would be appropriate to impose a sentence of imprisonment of at least twoyears for the offence for which the offender has been convicted, that there is a substantial risk that the offender will reoffend; and thatthere is a reasonable possibility of eventual control of the risk in the community: s. 753.1(1). The two regimes must be considered together. At the time of the sentencing judge's decision, the version of s. 753 in force was the sameas the one interpreted by this Court in Johnson.

The Court held that if a sentencing judge is satisfied that the long-term offenderprovisions are sufficient to reduce the risk to the life, safety or physical or mental well-being of other persons to an acceptable level, thejudge "cannot properly declare an offender dangerous and thereupon impose an indeterminate sentence, even if all of the statutorycriteria have been satisfied": Johnson, at para. 40. Failure to consider these options became known as the "Johnson error".

There is nodispute between the parties that the sentencing judge made it in this case and it has not been suggested that the 2008 amendments to theprovisions (S.C. 2008, c. 6) affect that conclusion in this case.

The Statutory Criteria [ 27 ]

Section 753 of the Criminal Code sets out the criteria that the Court must be satisfied of for an offender to be declared a dangerous offender. It provides: s. 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

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. [ 28 ]

Section 752 defines a serious personal injury offence as: (

a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving (

i) the use or attempted use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person, and for which the offender may be sentenced to imprisonment for ten years or more, or (

b) an offence or attempt to commit an offence mentioned in s. 271(sexual assault) … Defining Dangerous: The Four Elements [ 29 ] The Crown must prove that the predicate offence is a serious personal injury offence as defined in s. 752 . Following the proof of this prerequisite the Crown must prove that the offender is a dangerous offender in one of four ways enumerated in s. 753(1)(a)(i), (ii), (iii) or (b). Section 753(1)(a)(i) - Pattern of Repetitive Behaviour [ 30 ] The Crown must prove beyond a reasonable doubt: (

i) The accused has been convicted of a serious personal injury offence under s. 752 (a); (ii) The accused is a threat to the life, safety or physical or mental well-being of other persons based on evidence (

a) showing a pattern of repetitive behaviour by the accused; (

b) the offence for which he is convicted forms part of the pattern; (

c) the pattern of repetitive behaviour shows a failure to restrain behaviour; (

d) there is 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 behaviour. Section 753(1)(a)(ii) - Pattern of Persistent Aggressive Behaviour [ 31 ] The Crown must prove beyond a reasonable doubt: (

i) The accused has been convicted of a serious personal injury offence under s. 752(a); (ii) The accused is a threat to the life, safety or physical or mental well-being of other persons based on evidence; (

a) showing a pattern of persistent aggressive behaviour by the accused;

(

b) the offence for which he is convicted forms a part of the pattern; (

c) the pattern of persistent aggressive behaviour shows a substantial degree of indifference by the accused to the reasonably foreseeable consequences to other persons of his behaviour. The Requirement of a Pattern under ss. 753(1)(a)(

i) or (ii) [ 32 ] While the term “pattern” is not defined in the Criminal Code , the

definitions under ss. 753(1)(a)(

i) and (ii) essentially require a pattern of behaviour, (described differently in each) in respect of which the predicate offence must form a part. Both set out in precise detail the criteria which must be met if the Crown is to establish that the offender’s conduct falls within one of the proscribed patterns of past behavior. ( R. v. Neve, 199 ABCA 206) [ 33 ] In Neve , the Alberta Court of Appeal considered what has to be proven to establish a pattern, at paras. 107 to 108: [i]f the Crown fails to prove one or more of the required elements, then the proscribed pattern has not been made out.

Under s. 753(a)(i), the elements are the following: 1. A pattern of repetitive behaviour; 2. The predicate offence must form part of that pattern; 3. That pattern must show a failure by the offender to restrain his or her behaviour in the past; and 4. That pattern must show a likelihood of death, injury or severe psychological damage to other persons through failure to restrain his or her behaviour in the future. [ 34 ] Under s. 753(a)(ii), the required elements are these: 1. A pattern of persistent aggressive behaviour; 2. The predicate offence must form part of that pattern; and 3.

That pattern must show a substantial degree of indifference by the offender respecting the reasonably foreseeable consequences of his or her behaviour. [ 35 ] The Court continued at para. 109: What do these sections require in assessing an offender's past conduct? First, the type of past behaviour encompassed by these sections is criminal behaviour since the predicate offence, a criminal one by definition, must form part of the pattern of conduct. The dangerous offender legislation is directed at those who hurt people through criminal, as opposed to simply anti-social, conduct.

The latter cannot be the foundation for a dangerous offender application. [ 36 ] In considering the quality of the past behavior , the Court commented at para. 110: This takes us to the second point: the quality of the past behaviour. Does all criminal behaviour form part of the pattern? In our view, it does not. We read s. 753(

a) as requiring that the court be satisfied on two points: (

a) that the predicate offence is part of a pattern of behaviour which has involved violent, aggressive or brutal conduct; and (

b) that it is likely that this pattern of conduct will continue and will lead to conduct endangering the life, safety or physical well-being of others: see Lyons, supra. Since a predicate offence under s. 753(

a) must be a "serious personal injury offence" (meaning that it itself must meet either a violence or endangerment requirement under s. 752 (a)), it follows logically that the past behaviour must also have involved some degree of violence or attempted violence or endangerment or likely endangerment (whether more or less serious than the predicate offence). Otherwise, the predicate offence would not be part of that pattern. [ 37 ] At para. 111, the Court suggested how repetitive behavior and aggressive behavior can be established: Third, repetitive behaviour under s. 753(a)(

i) and persistent aggressive behaviour under s. 753(a)(ii) can be established on two different bases. [Persistent in this context has been equated with repetitive: Yanoshewski, supra.] The first is where there are similarities in terms of the kind of offences; the second where the offences themselves are not similar in kind, but in result, in terms of the degree of violence or aggression inflicted on the victims. Either will do. Thus, the mere fact that an offender commits a variety of crimes does not mean that no pattern exists.

There is no requirement that the past criminal actions all be of the same or similar form, order or arrangement; though if this has occurred, it may well suffice. [ 38 ] Lastly, at para. 112, in reference to s. 753(1)(a)(i), the Court quoted approvingly the British Columbia Court of Appeal decision in R. v.

Dow , 199 BCCA 177, wherein Lambert, J.A., at para. 112, wrote: 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.

The one qualification we would add to these comments is that it is not necessary that the past conduct have led to actual injury. Attempted serious violence and likely serious endangerment of life, safety or physical well-being or severe psychological harm may well be adequate.

[39] In R. v.

George, (1990) (BC CA), 126 C.C.C. (3d) 384, at paras. 15-19, the British Columbia Court ofAppeal, commented that in determining what constitutes a pattern of persistent aggressive behavior, the Court should distinguishbetween childhood aggression and adult criminality. [40] In Dow, Lambert J.A., also observed at para. 25, that: [T]he very essence of a pattern that there be a number of significant relevant similarities between each example of the pattern that isbeing considered, but that, at the same time, there may be differences between each example, some of them quite distinctive, so long asthe differences leave the key significant relevant elements of the pattern in place.

That is, after all, what is meant by a pattern. [41] Similarly, in R. v. P.M.C., [1998] B.C.J.No. 3225, at para. 20, Wilson, J., in delivering the judgment of the British ColumbiaSupreme Court stated: [F]or the Crown to prove that there is a "pattern of repetitive behaviour", there must be: firstly, repetition (although not necessarily morethan two incidents); and secondly, some similarity between the incidents, so that it can be said that they form a pattern.

I do not find thatthe Crown need prove an identity of the elements of the incidents, or that they show a particular psychological profile or trait of theoffender such as pedophilia. The incidents can be serious or not, and involve violence or not, but they must go beyond merely a series ofcriminal offences, so that the court can identify some commonality or arrangement or order between them. [42] In Neave, the Court, at para. 123, described the three areas of evidence will generally be considered in determining whetherthere is a pattern of conduct falling within the threshold requirements under.

Section 753, as: 1. the offender’s past criminal acts and criminal record; 2. extrinsic evidence relevant to those pas acts and the circumstances surrounding them; and 3. psychiatric reports opining as to that conduct. [43] In R. v. Bunn, 2012 SKQB 397, a decision of the Saskatchewan Court of Queen’s Bench, the Court considered the meaning ofsubstantial degree of indifference and concluded at para 19: In defining substantial degree of indifference, the British Columbia Court of Appeal in R. v. George (BC CA), (1998),126 C.C.C. (3d) 384, [1998] B.C.J.

No. 1505 (QL) (B.C.C.A.) at 394-95, established that the court cannot only look at the offender’sactions at the time of the offence but other offences as well in determining “substantial degree of indifference”. If the offender has aconscious but uncaring awareness of causing harm to others and this has occurred over a period of long duration involving frequent actsand with significant consequences, this is sufficient to establish a substantial degree of indifference. Section 753(1)(a)(iii) - Offence of a Brutal Nature [44] The Crown must prove beyond a reasonable doubt: (

i) the offender has been convicted of a serious personal injury offence under s. 752(a); (ii) the offender is a threat to the life, safety or physical or mental well-being of other persons based on evidence; (

a) the behaviour associated with the predicate offence is of a brutal nature; and (

b) the offender's future behaviour is unlikely to be inhibited by normal standards of behavioural restraint. [45] This provision does not require the presence of a pattern of behavior. It is the brutality of the conduct that is relevant. Asituation of stark horror is not required in order to find brutality. Conduct which is coarse, savage and cruel and which is capable ofinflicting severe psychological harm on the victim is sufficiently brutal to meet the test in this test. (R. v. Langevin (1984), (ON CA), 11 C.C.C. (3d) 336 (Ont. C.A.); R. v. Schrubsall, 2001 NSSC 197, at para. 35) Section 753(1)(b) - Failure to Control Sexual Impulses [46] The Crown must prove beyond a reasonable doubt: (

i) the offender has been convicted of a serious personal injury offence under s. 752(a); (ii) the offender's past conduct in any sexual matter, including the predicate offence, has shown a failure to control his or her sexualimpulses; and (iii) a likelihood of causing, injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses. [47] The Supreme Court of Canada in R. v. Currie (1997), (SCC), 115 C.C.C. (3d) 205, at para.17, held that theprospective dangerousness of the offender in s. 753 (

b) is measured by reference to his or her conduct in any sexual manner, includingthat involved in the predicate offence. There need not be a focus upon the objective seriousness of the predicate offence to determine theapplication. Any sexual matter may, but need not refer to the predicate offence. Provided that the offender’s past conduct in any sexualmatter demonstrates a present likelihood of inflicting future harm upon others, the designation dangerous offender is justified. [48] In Schrubsall, 2001 NSSC 197, at para. 35, Cacchione, J. observed: The wording of s. 753(1)(

b) also does not contain a reference to a "pattern of behaviour". Under this

section the Crown must establish

that the offender has been convicted of a "serious personal injury offence" and that there is a likelihood of harm to others through futurefailure to control sexual impulses. The Crown is not required to prove beyond a reasonable doubt that certain events will happen in thefuture. It is the quality and strength of the evidence of past and present facts together with the expert opinion thereon, which forms anexisting basis for a finding of present likelihood of future conduct; R. v. Knight (1975), (ON SC), 27 C.C.C. (2d) 343at 356. [49] The relevance of psychiatric evidence was considered in R. v.

Sullivan, (ON CA), [1987] O.J. No. 2162, atparas. 34-35, where Martin J.A., in delivering the majority judgment of the Ontario Court of Appeal, held that psychiatric evidence isrelevant to the issue of whether the offender by his or her conduct in sexual matters, including that involved in commission of thepredicate offence, “has shown a failure to control his or her sexual impulses”. He wrote: [i]n my view, the psychiatric evidence is of particular relevance to this issue.

The psychiatric evidence indicates that the appellant suffersfrom an ongoing personality disorder, that he has low impulse controls, and that his conscience is defective in regulating his sexualbehaviour. In my opinion, the trial judge was entitled to rely on the psychiatric evidence against the background of the appellant's sexualoffences on this issue. It warranted her conclusion that the appellant in the future is likely to similarly fail to control his sexual impulses.

The psychiatric evidence was also highly relevant to the third issue, namely, whether there is a likelihood of the appellant causing injury,pain or other evil to other persons through failure in the future to control his sexual impulses. In other words, the evidence is highlyrelevant to whether the appellant, because of his personality disorder, represents a continuing danger. [50] In R. v.

Oliver (1997), 1997 ABCA 49 , 114 C.C.C. (3d) 50, at pars. 9-10, Hunt J.A., in delivering the majority of theAlberta Court of Appeal, held that test is not whether the offender can control his or her sexual impulses, but whether he or she has failedto do so. Evidence of Character and Repute [51]

Section 757 of the Criminal Code, permits the Court to grant leave to the Crown to lead evidence of an accused’s character andreputation at a dangerous offender application. However, its use is limited. Character evidence cannot be used to create a pattern,although it may explain why something is reflective of a pattern. (Neave, at para. 127) The Applicability of the Sentencing Provisions [52] The Supreme Court of Canada has confirmed that the dangerous offender provisions form part of the sentencing process. Assuch, their

interpretation must be guided by the fundamental purpose and principles of sentencing contained in ss. 718 to 718. (Jones;L.(T.P.); Johnson). General Principles [53] There are well-established principles regarding dangerous offender applications that must be considered, including thefollowing:

a) The overriding aim of dangerous offender legislation is not punishment, but the prevention of future violence (R. v. Schwartz, 2000BCSC 40);

b) The onus of proof is upon the Crown and the standard of proof is beyond a reasonable doubt (Schwartz);

c) The Crown need not prove beyond a reasonable doubt the offender will re-offend, only that there is a likelihood that he will inflictharm (Schwartz);

d) The determination of whether the accused is a dangerous offender is based upon his past conduct and not his future prospect fortreatment or rehabilitation (Schwartz; R. v. Carleton (1981), 69 C.C.C. (2d), affirmed, (SCC), [1983] 2 S.C.R. 58);

e) The Crown has no obligation to refute treatability. Where the accused declines treatment or any rehabilitative help, any debate aboutonus becomes remote (R. v. Nepoose, 1997 ABCA 260, at para. 16);

f) The strict rules which govern a trial do not apply at a sentencing hearing and it would be undesirable to have the formalities andtechnicalities characteristic of the normal adversarial proceedings prevail. The hearsay rule does not govern the sentencing hearing.Hearsay evidence may be accepted where found to be credible and trustworthy. The judge traditionally has had wide latitude as to thesources and types of evidence upon which to base his sentence. He must have the fullest possible information concerning the backgroundof the accused if he is to fit the sentence to the offender rather than to the crime (R. v. Gardiner, (SCC), [1982] 2 S.C.R.368; Jones);

g) The touchstone for sentencing procedure is flexibility with diminished procedural impediments to the acquisition of the fullestpossible information regarding the offender (R. v. Campbell, (ON SC), [2003] O.J. No. 4085, at para. 29 (Ont.S.C.J.) );

h) Dangerous offender proceedings do not constitute a new trial but rather a sentencing phase of a trial. The balancing of Charter valuesin this context results in societal values for protection outweighing individual rights against self-incrimination ( R. v. Brown, [1999]B.C.J. No. 3040, at para. 20 (B.S.S.C.) );

i) The confession rule has been designed for proceedings where, broadly speaking, the guilt or innocence of a person is the matter inissue. The rule has not been established for proceedings related to the determination of sentence (Jones); and

j) The offender cannot be punished for not fully participating in the assessment nor can the court make an adverse inference withrespect to his or her refusal to participate. At a dangerous offender application, it is the Crown and not the defence who has put theaccused’s mental state in issue (Brown, at para. 34). Evidentiary Issues [54] It is clear from a review of the Criminal Code and the case law that the rules of evidence are less strict at dangerous offenderproceedings. This ensures the court receives the widest possible range of information.

The flexibility in the rules applies to both the typesof evidence to .be introduced and the method of proving the various allegations. For example, the Court may permit the Crown to leadevidence of reputation (s. 757) and to rely on hearsay (s. 723(5)) and documentary evidence. [55] However, even though the Crown may call different types of evidence and rely on different methods of proof, the burdenremains unchanged.

Any disputed allegation of criminal conduct or aggravating fact must be proved beyond a reasonable doubt. [56] There are numerous examples in the case law where the Crown led evidence of other conduct for which the accused had notbeen convicted. It appears that so long as the offender has not been acquitted, the Crown may call evidence of other criminal conductprovided it is relevant to the elements under the dangerous offender

definitions. (R. v B.(J.H.) (1995), 1995 NSCA 135 , 101C.C.C. (3d) 1 (N.S.C.A.)). [57]

Section 757 of the Criminal Code specifically provides for the admission of character evidence. Documentary Evidence [58] Documents introduced for the truth of their contents would typically be inadmissible in the absence of an exception to thehearsay rule. Section 723(5) permits the introduction of hearsay evidence at a sentencing. In Shrubsall, Cacchione J. noted at para 20: Hearsay evidence is admissible in dangerous offender applications. The Supreme Court of Canada in R. v.

Gardiner (1982) 68 C.C.C.(2d) 27 (S.C.C.), at 513-514 held that the judge at a sentencing hearing should not be denied an opportunity to obtain relevantinformation by the imposition of all the restrictive evidential rules common to a trial. Hearsay evidence may be accepted where found tobe credible and trustworthy. [59] In R. v. Gregoire (1998), (MB CA), 130 C.C.C. (3d) 65, (Man. C.A.), the Crown proffered extensivedocuments compiled by the National Parole Board and Corrections Canada at a dangerous offender proceeding.

The documents coveredthe time period, during which the offender was incarcerated at para. 53, the Court made the following observations: The extensive documents admitted in evidence through them were compiled as part of their regular duties and responsibilities within thecorrectional system. They were prepared for the purpose of recording the progress and problems experienced by the various inmates andinclude, in some instances, the opinions and recommendations of the authors. Their sources include the accused, other inmates, and otherstaff members.

They are replete with hearsay statements about the accused based on the observations of others within the correctionssystem. [60] In reaching the conclusion that the documents were admissible the Court held at para. 62: In our opinion, the documentary information in question was admissible in evidence not only pursuant to the provisions of s. 30(1) of theCanada Evidence Act, as concluded in R. v. Martin and many other cases, but at common law by virtue of the Supreme Court decision inAres v.

Venner earlier referred to and the extensive body of jurisprudence that has since followed and applied it. … This has now developed into a well-recognized exception to the hearsay rule and is applicable to the facts of this case. All of the authorsof the documentary evidence had extensive personal knowledge of the accused because it was part of their job to acquire suchinformation. It was also part of their job to make reports about the accused's activities and progress within the prison system that becamepart of the official record for the purposes of parole and prison discipline.

They are clearly admissible as an exception to the hearsay rule. [61] Similarly, in R. v. Trevor, 2003 BCSC 1154, at para. 12 the Court noted: Much of the evidence adduced at this hearing was contained in numerous documents comprising witness statements, reports to Crowncounsel, pre-sentence reports and the contents of the files of corrections and probation officers. Defence counsel admitted theauthenticity of these documents and agreed that they could be admitted for the proof of their contents, subject to the court giving themthe appropriate weight.

The Crown relied on this documentary evidence with regard to Mr. Trevor’s background, the circumstances ofother convictions and Mr. Trevor’s response to supervision on prior occasions. [62] While documentary evidence is clearly admissible at a dangerous offender hearing, the court must assess the reliability anddetermine the appropriate weight to be placed on such evidence. In Campbell, Hill J., at para. 31, wrote: This said, concerns about evidentiary reliability are not merely abandoned in a sentencing hearing. The court remains vigilant to act uponreliable evidence.

As well, as observed in the Gardiner case at page 514, "the obtaining and weighing of such evidence should be fair".A sentencing court is empowered, at common law, to exclude unreliable evidence, evidence not properly considered creditworthy, and toexclude "evidence obtained in circumstances such that it would result in unfairness if the evidence was admitted at trial": R. v. Buhay(2003), 2003 SCC 30 , 174 C.C.C. (3d) 97 (S.C.C.), at 115-6.

Psychiatric Evidence [ 63 ] While expert evidence is admissible in this hearing, it cannot be over stated that it is for the Court to determine the relevant aspects of the pattern. Put differently, it is the Court and not the experts which must decide if a pattern has been established. The experts can interpret the past conduct and give opinions on the likely future conduct of the offender based on his or her past behaviour.

The expert opinions are also of assistance as they relate to whether the offender suffers from a psychological disorder and the prospects for treatment. ( Shurbsall ) [ 64 ] Experts obviously play a critical role in dangerous offender applications.

The case law establishes that the court can rely on psychiatric opinion evidence to reach the conclusion that certain conduct amounts to a pattern of behaviour or that the offender will not control their sexual impulses in the future. ( B. ( J.H. )). [ 65 ] It should be stressed, however, it is ultimately for the Court and not the expert to make determinations of fact and draw conclusions about patterns of behaviour or future conduct. [ 66 ] In Neve, the Alberta Court of Appeal, considered the importance of exercising circumspection in assessing and evaluating psychiatric evidence.

The Court of Appeal suggested, at para. 189, that the following be considered: 1. The qualifications and practice of the psychiatrist; 2. The opportunity the psychiatrist had to assess the person, including: length of personal contact, place of contact, role with ongoing treatment, and involvement with the institution in which the person is a patient or prisoner; 3. The unique features of the Doctor-Patient relationship, such as hostility or fear by the patient (or psychiatrist) arising from the personalities, circumstances of contact, and the role of the psychiatrist; 4.

Specifically and precisely what documents the psychiatrist had available and reviewed, for example, from earlier Court proceedings, institutional records, other medical consultations or treatment; 5. The nature and scope of consultations (this could include: personal contact with third parties, information from other health care professionals, prison authorities, police, lawyers, family); 6. Specifically and precisely what the psychiatrist relies on in coming to an opinion; 7.

The strength and weaknesses of the information and material that is relied on. [ 67 ] Later in the judgment, at para. 189, the Court emphasized the following instructive points: 1. At all times the responsibility remains with the sentencing judge to assess and weigh the opinion evidence to determine whether the behavioural thresholds have been met and whether based on the past behaviour someone is a threat and if so should be designated a dangerous offender. The experts do not become the judges and the expert opinion is not the judgement; 2.

It is the sentencing judge, not the psychiatrist, or the Crown, or the defence, who decides what the key elements of the pattern are; 3. In assessing the existence of a pattern, psychiatric opinion evidence, admissible under s. 755, must be used cautiously. Clearly psychiatrists can opine on the

interpretation of what is alleged to constitute a pattern of conduct, or whether that pattern of conduct is pathologically or substantially intractable and of course on the issue of future dangerousness, but quite apart from any other use of psychiatric evidence in dangerous offender hearings, while the psychiatrist may review past criminal conduct and then give an opinion on whether it forms a pattern, it is, in the final analysis, the Courts responsibility and not the psychiatrists to make the determination whether the evidence establishes the proscribed patterns (see paragraph 199). [ 68 ] It is with these instructive comments that I approach the expert opinion evidence in this case.

The Predicate Offences [ 69 ] The predicate offences arise from the same circumstances. The circumstances surrounding theses offences are described in Exhibit 13, which states: On May 15, 2009, the victim, A.M.C., picked up the offender, James Martin, at Downtown Pizza located on Wyse Road in Dartmouth. A.M.C. and Mr. Martin had been friends for about six months and went back to her apartment on Albro Lake Road, Dartmouth. After sitting and talking on the couch, A.M.C. and Mr. Martin went for to bed for a nap. At approximately 7:30 pm while A.M.C. was sitting on the couch, Mr.

Martin began to ask her how she felt about him, but she would not answer him. Mr. Martin approached her, swung her legs around and then straddled her, while she was lying on her back. A.M.C. could not move. A.M.C. told the accused, “This isn’t funny anymore” and he responded, “I don’t care if it is funny, I want you to answer my questions”. Mr. Martin picked A.M.C. up and carried her to her bedroom where he placed her on the bed and straddled over top of her and kept asking her how she felt about him and not to be playing games. The victim was squirming, she was trying out get out from under Mr.

Martin and they both ended up lying on their sides with Mr. Martin in back with his arm wrapped around the victim’s neck. Mr. Martin told the victim that if she screamed he was going to break her jaw. The victim managed to get turned onto her stomach and screamed hoping that someone would hear her. Mr. Martin rolled her back over, placed one hand over her mouth and used his other hand to choke her. While choking the victim Mr. Martin told her that if she screamed

again he was going to kill her. Mr. Martin then lifted up her shirt and begun kissing her stomach. The victim asked to go have a cigarette and use the bathroom and Mr. Martin let her up as he stated, “I think I should go, I shouldn’t be here”. A.M.C. walked into the living room and saw that she had an opportunity to escape out the back door as Mr. Martin was in the kitchen out of sight. When A.M.C. unlocked the door Mr. Martin heard and came running into the living room and began chasing A.M.C. down the back stairwell.

A.M.C. was screaming hoping that someone would hear her and call the police until she was able to bang on the door of apartment #3. As she reached the door Mr. Martin caught up to her and she fell to the floor covering her face in case he hit her. Mr. Martin grabbed the victim by the hair and smashed her head off the wall before running back upstairs to her apartment. After returning to A.M.C.’s apartment Mr. Martin stole her car keys and then stole her 2003 Ford Focus.

When police attended to speak with A.M.C. she was visibly upset and had big clumps of her hair falling out from where the accused had grabbed her. A.M.C. provided a written statement to police and wished to proceed with charges against Mr. Martin. A.M.C. informed police that her and Mr. Martin were only friends and were never involved intimately. Family Background [ 70 ] Dr. Nielson has succinctly set out Mr. Martin’s personal background in her assessment report, Exhibit 16. She reported: James Joseph Martin is the only child born to the common law union of Brigitte Martin (flee Robichaud) and Placide Macintyre.

He was born in Rexton N.B. and spent his formative years in the communities of Richibucto and Baie Sainte Anne. Brigitte Martin had been married previously to Maxim Martin with whom she had 12 children. When they parted, only two older sons from her previous relationship remained in her care and were reared with Mr. Martin. When James Martin was a youngster, Brigitte Martin worked outside the family home assisting her common law husband with fishing until James Martin went to school, and thereafter Brigitte Martin stayed at home. She died in 1995, aged 72, of complications related to kidney disease.

Placide Maclntyre worked as a commercial fisherman. He too had been married previously and had 9 children from his previous union but did not have custody of any of the children when he and Mrs. Martin united. He was reported to have had a history of alcohol abuse prior to Mr. Martin’s birth and to have been short-tempered, unhappy, and physically and verbally abusive towards James Martin throughout his childhood and adolescence. James Martin described him as a “dry drunk”, and someone with whom he had little emotional attachment. No criminal history was reported.

He was reported to have demonstrated physical aggression towards Brigitte Martin on one occasion that was observed by James Martin. Placide Martin died in 1989, aged 77 of kidney failure. Mr. Martin reported that from an early age (3 or 4) he was subject to “a lot of abuse” at the hands of his father “for no reason” who “locked me in a shed for days at a time” and “beat the crap out of me” and “belted” [him]. He reported that his father was emotionally distant but materially indulgent, frequently purchasing him large gifts in order to appease his guilt about his poor parenting (in James Martin’s opinion).

In contrast, Mr. Martin described his relationship with his mother in warm, nurturing, supportive terms. Mr. Martin said he was not witness to regular domestic violence, but reported that his parents did not have a close relationship and ‘bickered’ a lot. Mr. Martin reported that he knew ‘most” of his half siblings on his mother’s side when growing up but was never particularly close to any of them. He reported that he was not particularly well bonded to the two half-brothers with whom he was raised due to the large age gap (7 and 10 years older).

He also reported that he perceived himself as an ‘outsider’, despite being the biological child to his parents, and thought that his half-brothers were treated preferentially by his father, even though they were not his biological children. Of his half siblings, Mr. Martin thought that two of his brothers have served periods of incarceration, and two have substance abuse difficulties. Mr. Martin reported that the remainder lead relatively stable and pro-social lives. Mr.

Martin currently has no contact with any of his siblings, although reported that he was in contact via the internet with a half-sister, Bernice, early during this last period of release, but not since. Mr. Martin has 5 biological children by 5 different mothers with whom he has no contact and who he does not support financially (the mothers or children). This is detailed later in the report under ‘Sexual and Relationship History’. Growing up, Mr. Martin reported that his family initially lived in a cramped 2 bedroom home in Richibucto, N.B until age 9.

Mostly, his childhood experiences were described in negative terms. He recounted incidents of sexual abuse by a female babysitter around age 4 and a male neighbour around age 6 (detailed later in the report under ‘Sexual and Relationship History’). He reported frequent corporal punishments by his father (being “beaten”) which were, in his view, arbitrary and disproportionate (e.g. teasing brother; reporting bullying; saying “anything that got on his [father’s] nerves, I got beaten”). Mr. Martin says that he was “hyper” all the time and overactive compared to other children and described himself as “wild”.

He reported difficulty making friends, and that his best friend was a local girl. He reported being caught for shoplifting (toy cars) at age 6 while in the company of other children. Around age 9 he reported that the family moved to Baie Sainte Anne, N.B. in order to be closer to his father’s fishing port. In this locality they lived in a much larger home and lived a more comfortable existence. However, Mr. Martin reported problems integrating into this community, and attributes many of his subsequent problems in life to this change in his social environment.

These years were characterized by significant problems in the community, at school and within the family home. In the community, Mr. Martin reported that he was bullied by the local children due to his lack of English fluency. He said that when he reported this to his father he received little support, instead saying that he would “get beaten again”. Mr. Martin admitted that he was involved in physical fights with the children who bullied him, but denied ever instigating fights for any reason.

In addition to this, he reported community misbehaviour prior to age 12 (e.g. “ran through a neighbour’s yard and killed some chickens”, and that he threw rocks at a girl’s glasses and broke them).

In school Mr. Martin also experienced behavioural difficulties (detailed below under Educational History) which included suspensions for physical aggression against a teacher and a student. In the family home, Mr. Martin reported parental supervision was minimal and that he was often left in the charge of himself or his older brothers while his parents played Bingo in the evenings. Mr. Martin described manipulative behaviour at a young age, for example he reported that he threatened to steal a car if his mother did not stay home from Bingo one evening. Mr. Martin reported that he carried the threat out.

Other behavioural problems at home included running away from home for about a week, ‘borrowing’ money from his mother’s purse without first asking, and sexual interference with a 9 year old female mentally challenged relative when he was age 12 or 14. He also reported frequent sexual experimentation with a same aged female peer starting at age 6 progressing to full penetrative sex with her by age 12. He reported sexual abuse by one of his brothers at age 13 (detailed below under Sexual and Relationship History). Overall, Mr.

Martin’s recollection of the years between age 9-12 is that he “basically got beat up a lot” by local children and his father, and that he spent a lot of time on his father’s fishing boat when not in school. Mr. Martin says that he was sent to a foster home around age 12 or 13, and reports that when I went to that foster home, that was the best time in my life”. He noted that his first placement lasted a month, but he was unable to clearly state the reason, musing that it could have been an emergency placement, or perhaps related to his having slept with a 12 year old female co-resident while at that placement.

His second foster placement (in Trachadie N.B.) was with a family who had several other foster children. This placement lasted 6 months and was also described in positive terms relative to his life with his family of origin. Furthermore, he reported that his biological father bought him a snowmobile while he was in that foster placement which made it all the more attractive for him. Upon his return home, Mr. Martin said that the material indulgences continued (e.g. he was given an ATV three-wheeler) but so did the ‘beatings”.

Consequently James Martin indicated that he began to engage in thefts with the specific aim to return to foster care, However, after a car theft around age 13 or 14, he reported that he was instead sent to Kingsclear Youth Training Centre. Mr. Martin reported that he was sexually abused during his time at Kingsclear by Karl Toft. Mr. Martin said that he was sent to Kingsclear “a few times” during adolescence, for “a bunch of thefts” mostly “stealing skidoos and cars”. He reported that he escaped youth custody twice, once near the beginning and once near the end of his tenure there. Mr.

Martin said that while he completed some education during his time at Kingsclear, predominantly his recollection of the experience was of sexual abuse, and learning from antisocial associates. Later in life

(1996) Mr. Martin reportedly received a financial settlement in compensation, adding that he was not permitted to divulge the settlement amount or terms of the Agreement. He reported that he spent the entirely of this sum in 3.5 years on clothing, rent, cars, cigarettes and drugs. Mr. Martin attracted his first adult convictions in July and August 1983, age 16/17 (Theft over $200, Possession of a Weapon; and Theft over $200 and BE/Commit).

Shortly thereafter he committed his first violent offence as an adult at age 17 (January 1984; Robbery with violence) for which he received a 30 month sentence, served at Springhill Institution. Since then, Mr. Martin has spent significant portions of his adult life incarcerated for various violent, non-violent, and sexually violent offences (outlined in Appendix B entitled “Criminal History”). With the exception of his last release to the Halifax area, he has otherwise lived predominantly in the area in which he was raised (Richebucto/Baie Sainte Anne and environs). Mr.

Martin’s last incarceration was in April 14, 2000 at which time he received a 6 year 6 month sentence for Sexual Assault CBH, Forcible Confinement and Uttering Threats. He served this at Dorchester Institution. At the time of sentencing Mr. Martin agreed to a 10 year long-term supervision order. Mr. Martin was detained until his Warrant Expiry Date (Oct 2006) by the National Parole Board. This decision was based on Mr. Martin’s history of violent and sexually motivated crimes, the NPB’s belief that Mr. Martin remained a high- risk for violent recidivism, and the belief that Mr.

Martin had made insufficient progress in the High Intensity Sex Offender Programming to enable this risk to be adequately controlled in the community. Subsequent to being denied statutory release, Mr. Martin completed a High Intensity Family Violence Prevention program in which he made some gains, but several areas were noted to require further improvement. It should also be noted that Correctional Services of Canada canvassed many Community Correctional Centers across the country seeking placement (all refused) before he was eventually accepted to the Carleton Centre in Halifax in October 2006. Mr.

Martin’s education, vocational, sexual and relationship history and other relevant historical detail, as well as his adjustment during his community release is outlined in the sections that follow. [ 71 ] Dr. Neilson further commented that: The file information regarding Mr. Martin’s background history is roughly consonant with that recorded above, with some inconsistencies/deficiencies noted (for example the number of half siblings reported has varied in the file from 20-40; file information was unclear as to the reason Ms.

Martin’s other children did not remain in her care with some file information suggesting that they some were scattered throughout New Brunswick in foster homes, and some old enough to care for themselves). Objective information regarding Mr. Martin’s early childhood and school performance was not abundant. However, the file was generally consonant throughout in noting that Mr. Martin was an unruly “quick-tempered” youngster whose parents did not adequately enforce parental boundaries, did not encourage self control strategies, and who were materially indulgent but emotionally negligent.

The file notes that his father was physically abusive. His parents were noted to collude with their son in his evasion of responsibility and tended to displace blame for his antisocial behaviour onto others. [ 72 ] She summarized her review by stating that: Mr.

Martin appears to have had a family life that despite apparent geographic and economic stability, was otherwise characterized by several domains of family dysfunction known to be associated with later violent behaviour including: poor family cohesion (large family size, lack of familial bonding); adverse child-rearing practices (inadequate or ineffective parental supervision; overly harsh/inconsistently enforced/absent discipline; inappropriate material rewards); and family relationship problems (poor relationship with father; poor parental marital relationship/witness to family violence, history of paternal alcohol abuse).

From an early age Mr. Martin had significant

behavioural problems at home, school and in the community prior to age 12, and did not live with both biological parents until age 16, with foster and institutional placements in his teens. Previous Criminal Convictions [ 73 ] It should be noted that the following

summary (chart) of Mr. Martin’s previous convictions which was submitted to the Court by the Crown in its Notice of Dangerous Offender Application, excludes Mr. Martin’s charge of indecent assault, which occurred on November 25, 1979, when he was 13 years of age. An official copy of the charge is contained in Exhibit 14, at p. 253 and referenced at p. 190. Exhibit 14 is a compilation of documents regarding Mr. Martin’s youth criminal history and background. At p. 253, the charge states that Mr.

Martin committed “a delinquency, in that he did indecently assault a female person, contrary to and in violation of section 149(1) of the Criminal Code of Canada .” [ 74 ] Mr. Martin discussed this offence with Dr. Neilson during one of her interviews with him. She reported, at p. 4 of her assessment report, Exhibit 16, that Mr. Martin disclosed that he committed a sexual interference offence with a 9 year old female mentally challenged relative when he was age 12 or 14. She also mentioned at p. 24 of the report that Mr.

Martin reported to her that he was 12 or 13 years of age, and was accused of sexually assaulting a 9 year old girl, who he named. He told Dr. Neilson that the girl was his half-sister’s daughter. Mr. Martin also told Dr. Neilson that he did not commit the offence, but pleaded guilty to it nevertheless. [ 75 ] Mr. Martin has a very extensive criminal record, which spans from 1978 to 2010, including the predicate offences. His record consists of the following convictions: Date

Section # Description/Action Sentence/Disposition October 25, 1978 (Saint John, NB) (Youth) 312(

a) Possession of a stolen vehicle 6 mths probation January 25, 1980 (Newcastle, NB) (Youth) 306(1)(b) 294(

b) x2 295 Break & enter and theft Theft under $200 Theft of an automobile Indefinite period not to exceed 5 years (Youth Training Centre) December 19,1980 (Newcastle, NB) (Youth) 306(1)(b) 294(a) 295 245(1) Break & enter and theft Theft under $200 Theft of an automobile Common assault One year (Youth Training Centre) June 29, 1982 (Fredericton) (Youth) 133(1)(b) 133(1)(b) 306(1)(

a) Unlawfully at large Unlawfully at large Break & enter with intent 30 days consecutive 30 days consecutive 30 days concurrent July 22, 1983 (Newcastle, NB) 294(a) 294(a) 85 Theft over $200 Theft over $200 Possession of a weapon Suspended sentence for 18 mths & $200 restitution 3 mths 3 mths consecutive & 18 mths probation 5 year weapons prohibition August 10, 1983 (Richibucto, NB) 294(a) 306(1)(

b) Theft over $200 Break and enter & commit 30 days on each consecutive and consecutive to sentence serving January 25, 1984 (Newcastle, NB) 302(

b) Robbery with violence 30 mths May 21, 1985 (Moncton, NB) 133(1)(

a) Escape lawful custody 2 mths consecutive to sentence serving April 23, 1986 (Newcastle, NB) 87(4)(

a) x3 Mischief 9 months on each concurrent May 14, 1986 (Newcastle, NB) 387 Mischief 15 days conc. with sentence serving

May 10, 1988 (Richibucto, NB) 306(1)(

b) x 5 295 294(

b) Break & enter & commit Takes motor vehicle without consent Theft under $1000 6 months on each chg. concurrent 1month conc. & conc. 1 month conc. & conc. October 10, 1989 (Richibucto, NB) 430(4)(b) 335 x 2 Mischief Take automobile without consent 2 mths 1 mth on each conc. but consec. October 16, 1989 (Newcastle, NB) 348(1)(

b) Break and enter & commit 1 year January 25, 1990 (Newcastle, NB) 266 Assault 60 days March 23, 1990 (Richibucto, NB) 267(1)(b) 266 145(3) Assault causing bodily harm Assault Failure to comply with recognizance 4 mths 30 days 15 days consecutive October 31, 1990 (Moncton, NB) 334(b)(ii) x2 Theft under $1000 5 days on each consecutive. November 6, 1992 (Newcastle, NB) 348(1)(b) 349(1) 3(1) NCA B E & Theft Unlawfully in dwelling house possession of a narcotic 2 years 6 mths concurrent $115 fine November 9, 1995 (Miramichi, NB) 279(2) 268(1) 245(a) 271(1) 266(

a) x3 264.1(1)(2) 279(a) 266(

a) x2 264.1(1)(a) 145(3)(

a) Forcible confinement Aggravated assault Administering a noxious thing Sexual assault Assault Uttering threats Kidnapping Assault Uttering threats Failure to comply with a recognizance 2 years concurrent 2 years concurrent 2 years concurrent 18 mths consecutive 2 years conc. & conc. 2 years conc. & conc. 18 mths conc. & conc. 18 mths each conc. & conc. 18 mths. conc. & conc. 1 mth consecutive . January 23, 1996 (Miramichi, NB) 3(2)(

b) NCA Possession of a narcotic 30 days consecutive to sentence serving April 14, 2000 (Moncton, NB) 272(c) 279(2) 264.1(2) Sexual assault causing bodily harm Forcible confinement Uttering threats 6 years and 6 mths (time served 6 mths) 3 years concurrent 2 years concurrent Found to be a long-term offender per 753.1(3) & given long term supervision order for 10 years Date

Section # Description/Action Sentence/Disposition

Plead guilty on May 21, 2010 (Dartmouth, NS) 246(a) 266 271(1)(a) 334(b) 753.3(1) Attempt to choke or suffocate Assault Sexual assault Theft under $5000 Failure to reveal intimate relationship to CSC super. D.O. Application Pending Date

Section # Description/Action Sentence/Disposition Circumstances of Specific Violent Offences [ 76 ] Mr. Martin’s criminal history includes numerous violent offences. For the purposes of this hearing, only a brief

summary of some of those violent offences contained in the criminal record will be addressed. Offence: Robbery: Sentence date January 25, 1984 [ 77 ] On November 22, 1983, Mr. Martin, age 17, went to visit an acquaintance, W.M. a 74 year old, at his home. Mr. Martin was invited to stay for a drink. W.M. went to the bedroom to turn up the thermostat. Mr. Martin followed him into the bedroom, wherein he instructed W.M. to get on the bed. Mr. Martin then tied up W.M.. Following that he stole W.M.’s wallet and car keys. He took the car, which was later returned and stole 10 dollars from the wallet.

W.M. spent the night tied up on the bed, with no heat in the bedroom. Offence: Mischief: Sentence date April 23, 1986 [ 78 ] On April 23, 1986, during a family dispute, Mr. Martin, age 19, grabbed an axe and began to destroy furniture and the walls of his father’s residence. He then pursued family members outside of the home, and chased them down the road. He also damaged two other residences with the axe. The total amount of damage to the homes is unknown.

Offence: Assault: Sentence date January 25, 1990 [ 79 ] In late June 1989, James Martin, age 23, and his wife, H.M. were in Baie Ste Anne visiting with friends and family. Mr. Martin was drinking at the time. As they were watching a sex video, with some friends, Mr. Martin began to insult H.M.. He was degrading her by talking about their sexual relationship. H.M. became humiliated and wanted to leave. As they were leaving Mr. Martin pushed H.M. and H.M. fell down. He then kicked her in the ribs and slapped her face. Offence: Assault & Assault Causing: March 23, 1990 [ 80 ] On September 2, 1989, Mr.

Martin’s wife escaped from the residence of Bernard Cheverie, where she had been staying with Mr. Martin. H.M. told the police that Mr. Martin had been beating and slapping her around since the morning of September 1, 1989. H.M. alleged that she had been hit and pushed down approximately 10 to 15 times over that time, until she finally managed to escape through the bedroom window and called for help. [ 81 ] On May 28, 1989, Mr. Martin, age 22, and his wife, H.M., were at their residence, and they were arguing. Mr. Martin told H.M. that he was going to make her life a living hell.

He went into the kitchen retrieved a pair of scissors. He then began cutting off pieces of H.M.’s hair. She was unable to stop him. Mr. Martin then ordered her to stay in bed. He then got up and returned to the bedroom with rope and a handkerchief. He then proceeded to bind her hands and feet with the rope and he gagged her with the handkerchief. Mr. Martin told H.M. that what he had done to her was not good enough for her. He stated that he wanted to cover her in honey and tie her to a tree so the coyotes could get her. After that Mr. Martin abruptly stopped, he said that he was kidding, and he untied her.

H.M. ran to the kitchen and took possession of a knife. They struggled. During the struggle Mr. Martin kneed H.M. in the ribs, knocking her down to the floor, which caused her to endure a lot of pain. Mr. Martin laughed and said, “that should teach you not to fight back”. H.M. eventually attended the hospital, where she was diagnosed as having bruised ribs. Offence: Break & Enter Unlawfully in a Dwelling: Sentence date November 6, 1992 [ 82 ] On September 20, 1992, police received a report that Mr. Martin, age 26, had broken into the residence of a neighbor, G.R.. While G.R. slept, Mr.

Martin stole money, personal effects and jewellery. When the police apprehended Mr. Martin, they also found a gram of hashish on his person.

[ 83 ] The previous evening, around 11:15 pm, Mr. Martin attended the residence of R.L.. Mr. Martin had entered the residence by going through the front door. She was asleep on the couch but awoke to find Mr. Martin standing next to her. He kissed her. She then pushed him away and ordered him to leave. Mr. Martin left the residence. A few minutes later, R.L. heard noises coming from the basement and, without warning, the lights and the television were shut off. She heard someone coming up the stairs. R.L. was on the couch and she was scared. Mr.

Martin went to the couch, and he tried to unfasten her pants, but her knees and hands were covering her private parts. R.L. pushed Mr. Martin away and went into the kitchen. Mr. Martin followed her and shut off the lights in that room, as well. He told R.L. that he wanted to be with her. She told him several times to leave, before he finally did. Forceful Confinement, Aggravated Assault, Administering a Noxious Thing, Sexual Assault, Assault, Uttering Threats, Kidnapping: Sentencing date: November 9, 1995: [ 84 ] For a period of two weeks in August 1995, Mr. Martin, age 29, unlawfully confined Ms.

M. in the residence where they had been residing. Between August 4 and 12, while the victim, Ms. M., was taking a shower, Mr. Martin came from behind and hit her three times with his fist to the back of her head. Between August 19 and 25, 1995, after Ms. M. spoke to her family the accused hit her three times on the right eye with his open hand. On August 13, 1995, Mr. Martin hit Ms. M. on the mouth with his fist, cutting her inside lip. On August 23, 1995, Mr. Martin burned Ms. M. on her left arm with a cigarette. On August 17, 1995, while they were canoeing to an island near Baie St Anne, Mr. Martin told Ms.

M. to paddle faster or he would drown her. On August 18, 1995, after canoeing, Mr. Martin locked the camp so Ms. M. could not get out, and then left in his canoe; leaving her behind. He heard Ms. M. screaming and returned to the camp. They then left the camp and returned to their residence in Baie St Anne. On August 23, 1995 after Ms. M. ’s family left the residence, Mr. Martin made her a coffee and forced her to take 18-20 pills. She consumed the pills and passed out. When she woke the next day, she was sore on both legs. She asked Mr. Martin what happened, as she could not remember. Mr.

Martin told her that he tried to have sex with her from behind and when he could not he hit her on both legs. On August 25, 1995, Mr. Martin put a rifle to Ms. M. ’s head and told her that he had no reason to live and if she answered the door to anyone, such as her family or the police, he would shoot the police first, then he would shoot her, and then he would shoot himself. Ms. M. tried on many occasions to leave the residence, but was unable to. At night, Mr. Martin would put a dresser against the door so that she could not leave. He told her that if she left him he would rape her nine-year-old daughter.

After Ms. M’s family had made numerous attempts to speak with her, they contacted the police. The police entered the house forcefully and found Mr. Martin and Ms. M. in the bathroom. Ms. M. was taken to the hospital where she spent three days in the intensive care unit. While in custody with respect to this offence, Mr. Martin wrote to Ms. M., attempting to influence her testimony and asking her to speak with M.J.M. about her evidence, as well. [ 85 ] On August 26th, 1995, Mr. Martin attended his brother’s home in Baie St Comeau.

While in the driveway, he took out his penis, in the presence of 14-year-old M.J.M. and her girlfriend, and urinated on the ATV that was parked in the yard. After urinating, he turned to M.J.M. and her girlfriend, showed them his penis and asked if they wanted to suck it or if they wanted a piec

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