R. v. Shea, 2014 NSPC 78

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Shea, 2014 NSPC 78 Date: September 29, 2014 Docket: 2197479 Registry: Halifax Between: Her Majesty the Queen v. Shawn Michael Shea DECISION – DANGEROUS OFFENDER APPLICATION Judge: The Honourable Judge Anne S.

Derrick Heard: March 24, 25, 27, April 1, 2, 3, 9, and June 23, 2014 in Halifax, Nova Scotia Decision : September 29, 2014 Charge: Section 268(1) , Criminal Code of Canada Counsel: Shauna MacDonald and Mark Heerema, for the Crown Luke Craggs, for Shawn Shea TABLE OF CONTENTS Introduction 2 The Organizational Structure of These Reasons ........................................ 2 The Evidence Called in these Proceedings ................................................... 3 Crown Onus and Concessions by Mr. Shea ............................................... 4

PART I – The Dangerous Offender Legislation The Purpose of the Dangerous Offender Provisions.......................... 4 The Dangerous Offender Designation Post-2008............................... 5 The Significance of an Indeterminate Sentence.................................. 8 The Legislated Criteria for a Dangerous Offender Designation.......... 8 The “Lesser Measures” Options......................................................... 11

PART II – What Constitutes a Pattern of Behaviour under sections 753.1(a)(

i) and (ii) for the Purposes of Dangerous Offender Designations? The Rationale for the Pattern Requirement........................................ 12 No Pattern, No Threat....................................................................... 13 What is a Pattern?............................................................................. 15 Features of a Pattern of Behaviour.................................................... 16

PART III – Conduct in Custody for Establishing Patterns of Behaviour . 20

PART IV – Facts of the Predicate Offence – Aggravated Assault on June 15, 2010 ............................................................................................... 23

PART V – Conflict with the Law – Shawn Shea’s Criminal History Mr. Shea’s Family Background......................................................... 25 Conflict with the Law as a Youth...................................................... 26 Conflict with the Law as an Adult..................................................... 43

PART VI – Mr.

Shea’s In-Custody Conduct.............................................. 51 Shawn Shea’s Provincial Remands and Sentences – the Records Of the Central Nova Scotia Correctional Facility (CNSCF) and The Cape Breton Correctional Facility (CBCF)................................. 52 Shawn Shea’s Federal Incarcerations – The Records of the Correctional Service of Canada......................................................... 61 First Penitentiary Sentence – Two Years................................ 62 Second Penitentiary Sentence – Three Years ......................... 70 Third Penitentiary Sentence – Two Years and Six Months.... 76 Fourth Penitentiary Sentence – Six Years and Six Months.... 86 In-Custody Conduct during the Dangerous Offender Proceedings..... 90 The March 31, 2014 Holding Cells Incident........................... 90 The April 3, 2014 Hallway Escort Incident............................ 91

PART VII – The Evidence of Witnesses and Mr. Shea’s Statement to The Court The Evidence of Matthew Lohnes...................................................... 92 The Evidence of Stacey McKenna...................................................... 94 The Evidence of Deputy Sheriff Salvator Avolese............................. 97 The Expert Evidence of Dr. Scott Theriault and Dr. Andrew Starzomzki 100 Introduction............................................................................ 100 Interviewing Mr. Shea and the Assessment Process............... 101 Dr.

Theriault’s Violence Risk Assessment and the Risk Assessment Tools....................................................... 104 The Psychopathy Checklist-Revised....................... 104 The Violence Risk Assessment Guide..................... 105 The Historical, Clinical, Risk Management Instrument............................................................... 106 Dr. Starzomski’s Violence Risk Assessment.......................... 107 Assess Mr. Shea’s In-Custody Behaviour.............................. 108 Managing Mr. Shea’s Risk..................................................... 109 Dr.

Starzomski’s Provisional ADHD Diagnosis..................... 114 The Relevance of Dr. Starzomski’s Provisional ADHD

Diagnosis................................................................................ 117 Strategies for Change.............................................................. 121 Is There Anything New in the Mix?........................................ 125 Mr. Shea’s Statement to the Court.................................................... 126

PART VIII – The Pattern Analysis Introduction 128 How the Expert Evidence Factors into the Pattern Analysis............. 130 Looking for the Patterns of Behaviour contemplated by sections 753.1(a)(

i) and 753.1(a)(ii)................................................................ 134 Not Proven Beyond a Reasonable Doubt ......................................... 142 The Riot and Hallway Escort Incident............................................... 144 The Convictions and Incidents for Inclusion in the Pattern Analysis. 145 The Crown’s Pattern Analysis Categorizations................................. 149 Is There A Pattern of Unremitting Institutional Violence?……......... 149 Is There A Pattern of Premeditated and Instrumental Violence against an Outnumbered Victim?...................................................... 151 Is There A Pattern of Diverse, Unselective and Opportune Violence 153 Is There A Pattern of Persistent Aggressive Behaviour? ................... 155 Not a Dangerous Offender Under

Part XXIV of the Criminal Code .. 157

PART IX – Disposition of Crown’s Application and Sentencing Options 158 Appendix A- Correctional Service of Canada Programming for Violent Offenders By the Court: Introduction [ 1 ] On August 30, 2011, Shawn Shea was found guilty with a co-accused (Adam LeBlanc) of aggravated assault as a result of a stabbing at the Central Nova Scotia Correctional Facility (CNSCF) on June 15, 2010. The stabbing victim was another prisoner at the CNSCF. [ 2 ] Following Mr. Shea’s conviction the Crown gave notice that it would be seeking to have him declared a dangerous offender pursuant to the provisions of

section 753 of the Criminal Code . [ 3 ] Judge Pamela Williams heard the Shea/LeBlanc trial on June 28 and 29, 2011. Following her appointment as Chief Judge of the Nova Scotia Provincial and Family Courts on February 26, 2013, she concluded that these new duties precluded her being able to continue with the case.

Section 669.2 (

a) of the Criminal Code provides that if the original provincial court judge “is for any reason unable to continue” the proceedings, they can be continued before another provincial court judge. Crown and Defence consented to Mr. Shea’s sentencing being conducted by me. The Organizational Structure of These Reasons [ 4 ] My reasons are organized into nine parts:

Part I is a broad overview of the dangerous offender legislation;

Part II discusses how courts have considered the patterns of behaviour requirements in

section 753.1 (a)(

i) and (ii) of the Criminal Code ;

Part III deals with the admissibility and relevance of in-custody conduct;

Part IV describes Mr. Shea’s predicate offence, the aggravated assault of June 15, 2010;

Part V reviews Mr. Shea’s criminal history, as a youth and as an adult offender;

Part VI reviews the records of Mr. Shea’s conduct in provincial and federal correctional institutions;

Part VII describes the evidence of witnesses called in the proceedings and Mr. Shea’s statement to the court at sentencing;

Part VIII contains my analysis of Mr. Shea’s convictions and in-custody conduct in relation to the issue of whether the Crown has established the patterns of behaviour required by sections 753.1(a)(

i) and (ii) of the Code ; and

Part IX deals with the disposition of the Crown’s dangerous offender application and sentencing options.

[5] I have attached as an Appendix a

summary of the evidence concerning the Correctional Service of Canada (CSC) programming forviolent offenders. The Evidence Called in these Proceedings [6] The evidence in these proceedings has come from witnesses and documentation. Two experts testified: Dr. Scott Theriault, aforensic psychiatrist, who prepared the court-ordered assessment, and Dr. Andrew Strazomski, a forensic psychologist, who was calledby the Defence. I also heard testimony from Stacey MacKenna, Mr.

Shea’s former common law partner, Matt Lohnes, a localbusinessman who had rented him an apartment approximately ten years ago, and Deputy Sheriff Salvator Auvolese, who had dealingswith Mr. Shea at the Central Nova Scotia Correctional Facility (CNSCF). I will indicate here that the evidence of Ms. McKenna, Mr.Lohnes and D/S Avolese is not directly relevant to the pattern analysis I must undertake although it assists in contextualizing aspects ofMr. Shea’s history and personality. [7] The Crown called evidence about incidents involving Mr. Shea during the time when the dangerous offender proceedings wereunderway.

Evidence was also led, at my request, about CSC’s programming for violent offenders. Crown Onus and Concessions by Mr. Shea [8] The onus is on the Crown to prove beyond a reasonable doubt that Mr. Shea meets the criteria for a dangerous offenderdesignation. [9] It has been conceded by Mr. Shea that the essential conditions precedent for the dangerous offender application have beensatisfied: he has been convicted of a “serious personal injury offence” as defined by sections 752(a)(

i) and 752(a)(ii) of the CriminalCode; an assessment was ordered and prepared in accordance with sections 752.1(1) and 752.1(2), that being the assessment of Dr.Theriault dated May 6, 2012; and the notice of the dangerous offender application and consent of the Attorney General as required bysection 754(1) of the Code have been served on Mr. Shea and filed with the Court.

PART I – The Dangerous Offender Legislation The Purpose of the Dangerous Offender Provisions [10] The dangerous offender legislation is aimed at offenders who, “in the interest of protecting the public, ought to be sentencedaccording to considerations which are not entirely reactive or based on a “just deserts” rationale.” The legislation has been held to“accord with the fundamental purpose of the criminal law generally, and of sentencing in particular namely, the protection of society.”(R. v. Lyons, (SCC), [1987] S.C.J.

No. 62, paragraph 26) The preventative detention that flows from a dangerousoffender designation “simply represents a judgment that the relative importance of the objectives of rehabilitation, deterrence andretribution are greatly attenuated in the circumstances of the individual case, and that of prevention, correspondingly increased.”Dangerous offender legislation “merely enables the court to accommodate its sentence to the common sense reality that the presentcondition of the offender is such that he or she is not inhibited by normal standards of behavioral restraint so that future violent acts canquite confidently be expected of that person.” (Lyons, paragraph 27) “Broadly speaking, the legislation was found to pursue thehistorical purpose of the criminal law, that is, to protect the public from those determined to be dangerous to an unacceptable degree.” (R.v.

Neve, 1999 ABCA 206 , [1999] A.J. No. 753, paragraph 55) The Dangerous Offender Designation Post-2008 [11] Amendments to the Criminal Code in 2008 introduced “significant changes to the wording, structure and application of thedangerous offender designation.” (R. v. Paxton, 2013 ABQB 750 , [2013] A.J. No. 1451, paragraph 14 (Q.B.)) Other judgeshave very ably discussed the pre-2008 dangerous offender sentencing regime so I do not intend to do so. (see, for example, R. v Paxtonand R. v. Szostak, 2014 ONCA 15 , [2014] O.J.

No. 95 (C.A.)) [12] The 2008 amendments removed a judge’s discretion not to make the dangerous offender designation where the offender fits thedefinition. (Szostak, paragraph 35) Judicial discretion is now confined to determining whether to impose a sentence other than anindeterminate sentence if certain criteria are satisfied. (section 753(4), Criminal Code) [13] What the 2008 amendments mean for Mr. Shea is that: (1) a dangerous offender designation is now mandatory if the statutorycriteria are established.

The threshold discretion previously available to judges has been removed and replaced by a requirement that thedangerous offender designation be imposed on offenders who meet the terms set out in

section 753 of the Code; and (2) judicialdiscretion has been shifted to the sentencing stage as there are now three possible sentences to be considered once an offender has beendesignated a dangerous offender. The sentencing options under the 2008 amendments are: an indeterminate sentence – which the Crownis seeking for Mr. Shea; a determinate sentence followed by a long-term supervision Order; and a determinate sentence. [14] As a result of the requirement that mandates a dangerous offender designation where the criteria have been met a broader group ofoffenders will receive the designation.

The amendments “have made the dangerous offender designation and an indeterminate sentencemore easily available.” (Paxton, paragraph 25) Martin, J. observed in Paxton: … As the terms of the designation have been widened and the designation was made mandatory when the statutory criteria are met, it isclear Parliament intended these provisions to have a wider scope.

Thus, while the group may remain small relative to other offenders, itis likely that a greater number of offenders who pose a future threat to the physical and mental well-being of the public will likely fallwithin the ambit of the new provision…(paragraph 25) [15] The 2008 amendments notwithstanding, decisions interpreting and applying them make it clear that sentencing in the context of adangerous offender application is not a formulaic exercise. “…even in the presence of particular designations, judicial restraint is animportant guiding principle in all sentencing matters.” (Paxton, paragraph 25) In Szostak, the Ontario Court of Appeal held that thelegislation “must be interpreted in the spirit of Lyons[1] and bearing in mind the sentencing principles and objectives in ss. 718, 718.1

and 718.2…” while acknowledging that “Parliament meant to broaden the group of persons to be labelled as dangerous offenders…”(paragraph 54) [16] The majority of the Supreme Court of Canada in Lyons recognized that dangerous offender legislation “embodies a complex ofpenological objectives” and stated: …I do not think it can be argued, either as a matter of logic or of common sense, that by virtue of a decision to sentence an offenderaccording to considerations based primarily on prevention, other equally valid, subsisting penal goals cease to be relevant. To reiterate,protecting society from the dangerous offender never wholly supplants the other legitimate objectives about embodied in a

Part XXIsentence. (Lyons, paragraph 53) [17] Furthermore, the majority in Lyons viewed discretion as the hedge against the legislated provisions being impermissibly arbitrary.It was noted that the imposition of sentence following automatically upon conviction had “disturbed” the Court in R. v. Smith, (SCC), [1987] S.C.J. No. 36. (Lyons, paragraph 65) [18] And while the scope of legislative reach has expanded, the guiding framework for the dangerous offender designation continues tomean that, Not everyone who is a criminal or for that matter a danger to the public is a dangerous offender.

In the spectrum of offenders, thedangerous offender legislation is designed to target – and capture – those clustered at or near the extreme end. Were this otherwise,constitutionality might stumble.

In other words, the dangerous offender legislation is not intended to be a process of general applicationbut rather of exacting selection. (emphasis added) (Neve, paragraph 59) The Significance of an Indeterminate Sentence [19] The Supreme Court of Canada has acknowledged that “the effects of an indeterminate sentence…must be profoundly devastating”to the offender. (Lyons, paragraph 46)) An indeterminate sentence has been described as “a drastic sentence” (R. v. Roberts, [2007] O.J.No. 297, paragraph 44 (C.A.)) and “perhaps the most serious punishment in the Criminal Code.” (R. v.

Allen, 2007 ONCA 421 , [2007] O.J. No. 2226, paragraph 15 (C.A.)) Ruby on Sentencing (8th edition) observes: …It is noteworthy that the Code does not at any time envisage the eventual disappearance of the indeterminate sentence, and, in thissense, preventative detention bears a strong resemblance to a sentence of life imprisonment.

Eventual release and continued liberty of adangerous offender depend upon the parole authorities for the rest of the offender’s life. (§17.33, Ruby) [20] As the Supreme Court of Canada has recognized: “For the offender undergoing an indeterminate sentence…the sole hope ofrelease is parole.” (Lyons, paragraph 47) The Legislated Criteria for a Dangerous Offender Designation [21] The Crown submits that Mr. Shea qualifies for a dangerous offender designation under either of sections 753.1(a)(

i) or (ii) of theCriminal Code. Those sections are as follows: 753.

(1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find theoffender 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…and the offender constitutes a threatto 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, showinga failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychologicaldamage on other persons, through failure in the future to restrain his or her behaviour, [or] (ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms apart, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to otherpersons of his or her behaviour… [22] So the component parts of the criteria for a dangerous offender designation under

section 753.1(a)(i) – what I will be calling the“repetitive behaviour pattern section” - are: • A threat to the life, safety or physical or mental well-being of others on the basis of evidence establishing - o A pattern of repetitive behaviour that shows, ▪ A failure to restrain his behaviour and ▪ A likelihood of causing death or injury to others, or of inflicting severe psychological damage on others. [23] The predicate offence must form a part of the repetitive pattern. [24] The Supreme Court of Canada has held that the “likelihood” standard in dangerous offender applications is not a certainty orprobability standard and is consistent with the proof beyond a reasonable doubt requirement in dangerous offender proceedings. (Lyons,paragraphs 93 and 94) [25] The component parts of the criteria for a dangerous offender designation under

section 753.1(a)(ii) - what I will be calling the“persistent aggressive behaviour pattern”

section - are:

• A threat to the life, safety or physical or mental well-being of others on the basis of evidence establishing - o A pattern of persistent aggressive behaviour that shows, ▪ A substantial degree of indifference on the offender’s part for the reasonably foreseeable consequences to other persons. [26] Once again, the predicate offence must form part of the persistent aggressive behaviour pattern. [27] A substantial degree of indifference can be established by evidence of “a conscious but uncaring awareness of causing harm toothers…over a period of long duration involving frequent acts and with significant consequences…” (R. v.

Bunn, 2012 SKQB 397, [2012] S.J. No. 637, paragraph 19 (Q.B.)) Repeat offending can provide proof of a substantial degree of indifference. [28] For a

section 753.1(a)(ii) dangerous offender designation, the Crown must prove beyond a reasonable doubt that the evidencediscloses a likelihood that “this type of aggressive behaviour will continue in the future” (Neve, paragraph 115) and that it will beaccompanied by “a substantial degree of indifference” to the reasonably foreseeable consequences for others. (R. v. Camara, 2013 ONCJ534 , [2013] O.J. No. 4580, paragraph 486) [29] There are two broad components to the pattern analysis: a present/past conduct requirement and a future conduct requirement.

Thefuture conduct aspect is considered once the requisite pattern of behaviour has been proven beyond a reasonable doubt. Both the presentconduct and the future conduct components of the dangerous offender provisions must be proven beyond a reasonable doubt. (R. v. P.G.,2013 ONSC 589 , [2013] O.J. No. 490, paragraphs 17 and 50 (S.C.J.)) The “Lesser Measures” Options [30] Upon making the dangerous offender designation, the options of a determinate sentence, with or without a long-term supervisionOrder, are not available unless the sentencing judge is satisfied they will adequately protect the public.

Section 753(4.1) provides asfollows: The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adducedduring the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(

b) or (

c) willadequately protect the public against the commission by the offender of murder or a serious personal injury offence. [31] The reasonable expectation of “successful treatment” has been held to be “of limited application in determining whether the personis a dangerous offender.” It is “significant in choosing the appropriate disposition.” (Szostak, paragraph 36) [32] As I mentioned, the “lesser measures” available under section 753 (4)(

b) or (c)…” are a determinate sentence with a long-termsupervision Order or simply a determinate sentence. As Martin, J. held in Paxton: …the 2008 amendments mean that under the current regime a judge shall find an offender to be a dangerous offender if the statutorycriteria are met, and in such a case there is a presumption that an indeterminate sentence is the appropriate sentence. This presumptioncan be displaced by sufficient evidence, with the result that the judge has the discretion to impose either of the other two available formsof sentence.

PART II - What Constitutes a Pattern of Behaviour for the Purposes of Dangerous Offender Designations? The Rationale for the Pattern Requirement [33] The Supreme Court of Canada in Lyons explained the rationale for the pattern requirement: “…it must be established to thesatisfaction of the court that the offence for which the person has been convicted is not an isolated occurrence, but part of a pattern ofbehavior which has involved violence, aggressive or brutal conduct…” If a pattern of conduct is found, then “it must be established thatthe pattern of conduct is very likely to continue and to result in the kind of suffering against which the

section seeks to protect, namely,conduct endangering the life, safety or physical well-being of others…” (Lyons, paragraph 43) [34] The “pattern” stage is “arguably the most complex, requiring the judge to measure the offender’s past conduct against the exactingrequirements of the Code under s. 753.” (Neve, paragraph 93) No Pattern, No Threat [35] It is only if the judge finds the requisite pattern, which in this case has to come within the threshold sections of

section 753.1(a)(i)or (ii), that the threat requirement can be established. “No threat can be found without proof of past behavior which meets at least one ofthe…separate thresholds under [now ss. 753.1(a)(

i) or (ii) for the purposes of this case]…If any one is met, then the judge is able to goon and determine whether the offender is, based on that evidence, a threat to the life, safety or well-being of others as described in [nowsection 753.1(a)].

If none is met, then the judge cannot find the person to be a “threat” under [s. 753.1(a)] (Neve, paragraph 102) Thejudge deciding a dangerous offender application must ‘be alive to the need to ensure that one of the past conduct thresholds has been meton the evidence.” (Neve, paragraph 105) [36] As the Alberta Court of Appeal stated is Neve: “…the threat must rest on the concrete foundation of past behaviour. Put simply, nopattern, no threat.” (paragraph 127) [37] In Neve, the Alberta Court of Appeal examined whether the pattern of behaviour analysis had been properly conducted.

Theircritique at paragraphs 121 and 122 is instructive: What happened here? As already observed, in finding N. to be a threat, the sentencing judge did not address how the various convictionsand other past conduct fit together to form a pattern of behavior sufficient to satisfy the requirements of either s. 753(a)(

i) or 753(a)(ii).Nor did the sentencing judge articulate which conduct he found fell within s. 753(a)(

i) or s. 753(a)(ii) or why. It is true that he

summarized N.’s criminal behavior and other evidence at length. But no analysis of how the stated offenses constituted a pattern underss. 753(a)(

i) or (ii) was undertaken other than a general finding of violence and aggression. And while violence and aggression,depending on degree, may very well be sufficient, here that finding was not tethered to any assessment of the degree of harm, whetherphysical or psychological, caused or threatened by the criminal conduct found to constitute the pattern of behavior. While the absence of this analysis need not be fatal, the problem is that a careful review of the reasons for judgment reveals twodifficulties. First, offences which do not belong on the pattern scale were placed on it.

Second, the pattern assessment and the threatassessment were effectively treated as one. And while the reasoning process employed may result in a telescopic finding that an offenderis a threat, the judge must be alive to the fact that the Crown must prove that one of the threshold patterns of behavior under s. 753 hasbeen met. Then and only then can the sentencing judge go on to decide whether, on the basis of that evidence, the person is a threat. What is a Pattern? [38] Hill, J. of the Ontario Superior Court of Justice in R. v. Naess, [2005] O.J.

No. 936, paragraph 61, has set out a helpful descriptionof a pattern: “…a repeated and connected design or order of things as opposed to a differentiated or random arrangement. Repetitive orpersistent connotes “constantly repeating”... or “renewal or recurrence of an action or event”; “Continuous; constantly repeated”;“Existing continuously in time; enduring”… and referred to R. v. Yanoshewski, (SK CA), [1996] S.J. No. 61 (C.A.),paragraph 25 and the Shorter Oxford English Dictionary. (Yanoshewski is also cited in Neve, paragraph 67; R. v. Solano, [2010] O.J.

No.2394, paragraph 56 (S.C.J.) and Camara, paragraph 494 (O.C.J.), cases cited by the Crown in this application.) [39] The British Columbia Court of Appeal has noted in Dow that a pattern consists of three components - repetitive behavior;dangerous behavior that was not restrained in the past; and a likelihood that the same behavior in the future will not be restrained andwill cause death or injury. (Dow, paragraph 22, referring to

section 753(a)(i)) The Court went on to say that, …in any particular case, for the purposes of describing the pattern, each of the three elements may be particularized in a way that givesindividuality to the pattern by indicating specific similarities between one incident at another.

But it is important that the process ofparticularization not result in a level of detail which obscures the common characteristics which embody and reveal the three essentialelements of the pattern.” (Dow, paragraph 23) [40] The Dow Court held: “if any of those three elements is missing, then there may be a pattern but it will not be a relevant pattern.

Butif all three are present then the essential elements of a relevant pattern are revealed.” (paragraph 24) Features of a Pattern of Behaviour [41] Other courts have discussed what constitutes “a pattern of behaviour”: • The focus at the pattern stage of the analysis is on past conduct, not character. (Neve, paragraph 203) • For the predicate offence to be part of the requisite pattern of behaviour, the past behavior must also have involved some degree ofviolence or attempted violence or endangerment or likely endangerment (whether more or less serious than the predicate offence). (Neve,paragraph 110) • Not every element of the pattern needs to be expressed in the predicate offence; (Solano, paragraph 4, citing R. v.

Lewis, [1984]O.J. No. 3203, (C.A.)) • The pattern does not need to be based on prior offences or conduct that would necessarily meet the standard of admissibility assimilar fact evidence; (Solano, paragraph 44, citing R. v. Hartling, [2005] O.J. No. 545 (S.C.J.)) • Repetitive behaviour under s. 753(a)(

i) and persistent aggressive behaviour under s. 753(a)(ii) can be established on two differentbases: the first is where there are similarities in terms of the kind of offences; the second where the offences themselves are not similar inkind, but in results, in terms of the degree of violence or aggression inflicted on the victims. Either will do.

Thus, the mere fact that anoffender commits a variety of crimes does not mean that no pattern exists. (Neve, paragraph 111) There is no requirement that the pastcriminal actions all be of the same or similar form, order or arrangement, though if this has occurred it may well suffice. (Dow,paragraph 27) • As few as two occurrences can constitute a pattern provided there is sufficient similarity; (Solano, citing R. v. Langevin, (ON CA), [1984] O.J. No. 3159, paragraph 30 (C.A.)) In R. v. Jones, [1993] O.J.

No. 1321, the Ontario Court of Appealexplained Langevin: “The emphasis [in Langevin] on the offences being remarkably similar was not intended as an expansion of therequirement of s. 753(a)(

i) of the Code. He was simply commenting that, in Langevin, the fact that the similarity was remarkable,compensated for there being but two offences relied on by the Crown.” • To qualify as a pattern of “persistent aggressive” behaviour [section 753.1(a)(ii)] the behaviour must be both persistent andaggressive. • Under

section 753.1(a)(ii), a judge must not only identify a pattern, she must consider whether the pattern is persistent. Finding apattern of behaviour is not enough. (R. v. Fulton, [2012] O.J. No. 6569, paragraphs 11 and 13 (C.A.)) [42] In divining whether a pattern exists, context is a critical consideration: “…to determine if specific offences fall within theproscribed patterns under s. 753, it is essential to assess the offences in context, having regard to what actually happened and why.”(Neve, paragraph 165) [43] In Neve, the Alberta Court of Appeal carefully reviewed the facts surrounding threats made by Ms.

Neve and concluded theyshould not have been included in the sentencing judge’s pattern analysis. The Court found there was no evidence Ms. Neve intended tocarry out the threats, made any effort to do so or, in two instances, intended for them to be communicated. An examination was

undertaken of the circumstances out of which the threats emerged. In one instance Ms. Neve, a young sex worker at the time, used threatsin an attempt to defend her friend, another vulnerable sex worker, from an assaultive pimp. Other threats were made in the presence ofpolice officers, causing the Court to say: “…the very fact that they were made directly to the police in their presence speaks volumesabout how effective they were and how likely it was that they would result in injury to anyone.

Realistically, these threats ended to theonly way they could – with N’s arrest and conviction.” (Neve, paragraphs 172 – 179) [44] R. v. Camara, 2013 ONCJ 534 , [2013] O.J. No. 4580 is an example of a judicial finding that a pattern of behaviourexisted to support the designation of Mr. Camara as a dangerous offender: …there are remarkable similarities between these two incidents, notwithstanding some obvious factual differences, such as the type ofweapon used, the time of day that the offences took place, the age and background of the victims, and Mr.

Camara being accompaniedby others on New Year’s Eve but alone at the sports bar. This does not detract from the essential facts that on each occasion Mr. Camara,in a grossly intoxicated, drug and alcohol induced state, used a weapon against an unarmed stranger in a drinking establishment, after hetook offense to the others treatment of him. The violence used by Mr.

Camara in each case was severe, permanent in its impact on thevictims, and entirely disproportionate to the events leading up to the incident; each assault occurred, in fact, when the victim was neitherin a position to defend himself, nor would have expected to be attacked. (Camara, paragraph 463) [45] In Camara, Libman, J. concluded the pattern of Mr.

Camara’s conduct showed that he had failed to restrain his behavior in thepast, that this has led to serious and permanent injuries to his victims, and that there existed a likelihood of causing death, injury or severepsychological damage through a failure to restrain that behavior in the future. (Camara, paragraph 466) [46] In Szotstak, the Ontario Court of Appeal recently discussed what is required to establish a pattern pursuant to sections 753.1(a)(

i) or(ii): [Mr. Szotstak’s] repeated resort to force that caused serious injuries shows the necessary pattern under either para. (

i) or (ii). There weresufficient relevant similarities to demonstrate the pattern called for in these paragraphs. As the court said in Neve at para. 113:“Similarity… can be found not only in the types of offences but also in the degree of violence or aggression threatened or inflicted on thevictims.” Over a very short period, four years, [Mr. Szotstak] seriously injured three different people.

He resorted to weapons and threeof the offenses and inflicted serious injuries… Breaking a beer bottle over a person in a bar because of a dispute about standing in line;slashing a person with a pair of scissors because [Mr. Szotstak] mistakenly thought the victim had some time earlier been involved in analtercation with him; beating an acquaintance so badly that he needed to go to the hospital; and a year later slashing that same person witha knife across the face causing permanent injury demonstrate the very type of pattern intended to be captured by paras. (

i) and (ii).(Szostak, paragraph 63) [47] To avoid a less serious “last straw” offence leading to a dangerous offender designation, the pattern of repetitive behaviour “thatincludes the predicate offence has to contain a number of the same elements of unrestrained dangerous conduct to be able to predict thatthe offender will likely offend in the same way in the future. This will ensure that the level of gravity of the behavior is the same…” (R.v. Hogg, 2011 ONCA 840 , [2011] O.J. No. 5963, paragraph 40 (C.A.)) cited in Szostak, paragraph 56)

PART III - Conduct in Custody for Establishing Patterns of Behaviour [48] The Supreme Court of Canada has held that “the greatest possible range of information” should be placed before the Court hearinga dangerous offender application.

This serves “… the public interest in safety and the general sentencing interest of developing the mostappropriate penalty for the particular offender…” and ensures the Court is in the best position possible “to make an accurate evaluationof the danger posed by the offender.” (Jones, paragraphs 123 and 124) [49] Evidence in a dangerous offender proceeding must be both relevant and admissible. “Relevant evidence is evidence which tends toprove that a fact issue is more likely than not.” (Jones, citing R. v. Seaboyer, (SCC), [1991] S.C.J. No. 62 and R. v.Watson, (ON CA), [1996] O.J.

No. 2695 (C.A.)) [50] Institutional behaviour involving threats and abusive treatment of correctional staff and other prisoners has been considered inpattern analysis and viewed both as a failure to restrain, even while incarcerated, aggressive and assaultive conduct, and as indicating asubstantial degree of indifference with respect to reasonably foreseeable consequences for others. (R. v. Shorting, [2011] M.J. No. 162,paragraph 28 (Q.B.); R. v. Cook, 2010 MBQB 237 , [2010] M.J. No. 327, paragraph 192 (Q.B.); R. v. Casemore, 2009 SKQB306 , [2009] S.J.

No. 440, paragraph 240 (Q.B.); Camara, paragraphs 488 and 494; R. v. Middleton, [2014] O.J. No. 776,paragraphs 27 – 29, (S.C.J.); R. v. Gregoire, [1998] M.J. No. 447, paragraph 71 (C.A.)) [51] Institutional misconduct by an offender that has not been the subject of criminal charges may become evidence at a dangerousoffender proceeding by consent. (Shorting, paragraph 18) [52] Conduct in custody evidence has been admissible via other routes as well.

In Gregoire, institutional records were held to be“clearly admissible as an exception to the hearsay rule.” (paragraph 63) The Manitoba Court of Appeal made the following observationsabout the records: …All of the authors of the documentary evidence had extensive personal knowledge of the accused because it was part of their job toacquire such information.

It was also part of their job to make reports about the accused’s activities and progress within the prisonsystem that became part of the official record for the purposes of parole and prison discipline…(paragraph 63) [53] Section 30(1) of the Canada Evidence Act and the common law – Ares v. Venner, (SCC), [1970] S.C.R. 608(Gregoire, paragraph 62) also ground the admissibility of documentation dealing with institutional behaviour. [54] Mr.

Shea’s records from the Correctional Service of Canada and provincial correctional jails – the Central Nova ScotiaCorrectional Facility and the Cape Breton Correctional Facility – were entered by consent.[2] They were referred to by the expertwitnesses, Drs. Theriault and Starzomski, in the preparation of their reports. While I do not accept that they are admissible under the

more elastic rules of evidence for sentencing hearings permitting hearsay evidence (section 723(4), Criminal Code), I find they areadmissible on several bases including as a principled exception to the hearsay rule. As in Gregoire, it was the job of correctional staff todocument Mr. Shea’s behaviour and make reports about him “for the purposes…of prison discipline.” (Gregoire, paragraph 71) [55] However, records of institutional behaviour that have been admitted into evidence must still be examined carefully to determinewhat they establish.

Evidence of untried criminal offences which the Crown seeks to rely on to establish a pattern of behaviour is subjectto the proof beyond a reasonable doubt standard. (Neve, paragraph 133) The quality and detail of the records will determine whetherthis standard has been met. In some instances institutional records relating to Mr. Shea were prepared on the basis of observations madeby correctional officers witnessing events or viewing CCTV footage. This constitutes reliable evidence that establishes basic factsrelevant to these proceedings, that is, specific instances of Mr.

Shea engaging in assaultive behaviour while incarcerated. [56] Mr. Shea has objected to his institutional records being used in the pattern analysis. He consented to their admission although myreview of the record for the July 3, 2013 “pre-trial” where the issue was addressed suggests that neither Mr.

Shea nor his counsel mayhave fully appreciated the role they would play in these proceedings. (see Endnote 2) And while I am satisfied these records areadmissible and can be mined for evidence for the pattern analysis, I must still assess what they establish about specific incidents - to betaken into account or not - in determining whether the Crown has proven the requisite pattern of behaviour beyond a reasonable doubt.(R. v. Ziegler, 2012 BCCA 353 , [2012] B.C.J. No. 1755, paragraph 76 (C.A.); R. v. Pike, 2010 BCCA 401 , [2010]B.C.J.

No. 1803, paragraphs 48 – 51 (C.A.)) [57] With these legal principles in mind, I will now describe Mr. Shea’s predicate offence, the aggravated assault, which underpins thissentencing, and then review his criminal and institutional record. In

Part VIII of these reasons I will discuss what I have found to be theconvictions and incidents that belong in the pattern analysis under sections 753.1(a)(

i) and (ii).

PART IV - Facts of the Predicate Offence – Aggravated Assault on June 15, 2010 [58] On June 15, 2010, Mr. Shea, his co-accused, Adam LeBlanc, and their victim, Keithen Downey, were all prisoners at the CNSCF,housed on N-3, a unit consisting of 16 cells, several showers, and a common room. Prisoners were permitted, in rotations, to spenddesignated periods of time in the common room. Shea and LeBlanc were scheduled to use the common room in the rotation afterDowney.

For reasons that were not made clear at the trial, Downey had hidden in a shower at the end of his group’s rotation at about8:45 p.m. instead of returning to his cell as required. Downey returned to the day room when Shea and LeBlanc were on their rotation. Aviolent encounter erupted shortly after Downey appeared and lasted approximately two and a half minutes. During this time Downey wasstabbed. [59] The altercation was captured on video with no audio (Trial Exhibit #4). The video shows Downey approaching LeBlanc’s open celldoor. Shea is standing outside his cell nearby.

The trial judge found that “presumably” there was a short verbal exchange. [60] Within seconds, Downey backs out of LeBlanc’s cell doorway as Shea and then LeBlanc approach him. Shea and LeBlanc becomephysically aggressive with Downey. Downey grabs Shea and they fall to the floor. Getting back on their feet they fight each other. Sheabacks off for a time but then rejoins the altercation on several subsequent occasions. [61] It is readily apparent from the video that both Shea and LeBlanc are holding something in their right hands and using these objectsto strike Downey in downward motions from time to time.

The trial judge was unable to see anything in Downey’s hands. I also watchedthe video and could not see anything. At one point when LeBlanc is on the floor on top of Downey, Shea delivers several blows toDowney with his foot. [62] In her oral decision the trial judge described what she observed in the video: …Moments before Correctional Officers arrive, Shea is seen turning his back to the camera and has his hands down his pants. LeBlancretreats to his cell.

Shea and Downey square off again and Shea actually delivers a blow to Downey in the presence of the guards… [63] The trial judge found there was no air of reality to the section 34(1) defence advanced by Shea and LeBlanc. She concluded thatneither of them could claim that the force they used was not intended to cause grievous bodily harm. She found that the only reasonableinference from the evidence was that the objects being wielded by Shea and LeBlanc had caused the five puncture wounds sustained byDowney.

She held that there was no air of reality to the suggestion that Shea and LeBlanc used no more force than was necessary. Shenoted that Shea “entered and exited the fight at will and was never pursued by Downey.” The trial judge further satisfied herself that theCrown disproved self-defence by Shea and LeBlanc. [64] Downey received five small puncture wounds. One wound, about the size of a quarter, was to his chest and required stitches.Stitches were used to close a wound to his cheek and he had a slash on his arm.

PART V - Conflict with the Law - Shawn Shea’s Criminal History [65] Mr. Shea has a criminal record of 58 offences, including offences committed when he was a youth. Mr. Shea’s Family Background [66] Mr. Shea was born on October 3, 1979 to Margaret Shea and Michael Graham. It is unclear to me from the records when hisparents stopped living together but whenever it was, Michael Graham appears to have played no

part in Mr. Shea’s life. Mr. Shea wasbrought up by his mother in Halifax. At some point his father moved away to Ontario and established another family. A pre-dispositionreport prepared in June 1992 indicates that by that time Mr. Shea had not seen his father for three years. His mother described Mr.Graham as an alcoholic who subjected her to a lot of physical and mental abuse. She also said he had been in and out of jail. [67] Mr. Shea grew up hard. His mother was on social assistance and struggled with a mental illness, described as a bipolar disorder.They often moved and Mr. Shea spent time in foster homes when his mother was unwell. The frequent moves meant that Mr. Shea went

to a number of different schools. A half-brother lived in Ontario with Ms. Shea’s mother and a half-sister was eventually taken into care and adopted. Conflict with the Law as a Youth [ 68 ] Mr. Shea’s first offence was committed on March 6, 1992. He was 12 years old. He was sentenced for arson on July 22, 1992 and given six months’ probation. He gave a statement to police and pleaded guilty to using aerosol cans and a lighter to set fire to the gymnasium door at his school. The other two children with him at the time, one of whom assisted in setting the fire, were under 12 years old and were not charged. Mr.

Shea told police that the door was not on fire when they left the scene because they had put snow on it. In a pre-disposition report dated June 24, 1992, prepared for his sentencing, Mr. Shea said it had been “a stupid thing to do.” ( Exhibit 17, page 148 ) [ 69 ] In the June 24, 1992 pre-disposition report Mr. Shea’s mother described him as difficult to bring up as he was “at the stage that he wants to come and go as he pleases.” She found Mr. Shea, “hard to handle and communicate with.” At the time Mr. Shea was going to counselling at the Atlantic Child Guidance Centre. Ms.

Shea expressed great concern about her son and is reported to have just wanted him “to be a normal 12 year old youth who will follow the rules and do as he is told.” ( Exhibit 17, pages 147 and 148 ) [ 70 ] The pre-disposition report contains information about Mr. Shea’s school performance at the time. He was in Grade 7 and according to his homeroom teacher was functioning well academically in all subjects with the potential to do even better. He was described as a good reader who read with expression. His homeroom teacher told the author of the pre-disposition report that when Mr.

Shea was asked to settle down in class he would usually comply. ( Exhibit 17, page 148 ) [ 71 ] The school principal reported that Mr. Shea had made “a few trips to the office” for disruptive behaviour in the classroom. He was described as silly at times and a bit of a bully with the younger kids. ( Exhibit 17, page 148 ) [ 72 ] The pre-disposition report refers to the counselling Mr. Shea was receiving from the Atlantic Child Guidance Centre. He first saw a counsellor there on January 8, 1992 following a referral by his mother. She had had concerns about behaviour problems at home such as Mr.

Shea not listening to her, and “some problem areas at school”. ( Exhibit 17, page 149 ) There had been individual sessions and sessions with Mr. Shea and his mother together. The focus was on Mr. Shea’s feelings and “pointing him in the right direction regarding his behaviour.” The counsellor felt that Mr. Shea was “getting a better grip on the situation at home”. The plan was to continue to work on “behaviour management.” ( Exhibit 17, page 149 ) [ 73 ] Mr. Shea’s next offence was a theft.

On June 21, 1993 he was sentenced to 9 months’ probation for stealing a Sony Walkman from Sears in January. ( Exhibit 17, page 151-153 ) [ 74 ] The pre-disposition report update of June 1993 reports that Mr. Shea was in voluntary care with the Children’s Aid Society. His home life with his mother had unravelled in February 1993 and Mr. Shea had had placements in a group home and a foster home. His foster mother described Mr. Shea as having a mind of his own - “he likes to do what he likes to do.” He could be “sneaky” when he didn’t get his own way. She thought of Mr.

Shea as “smart, although his attention span can be short.” ( Exhibit 17, page 157 ) In his foster mother’s view, Mr. Shea needed someone to help him learn the basic skills needed to get along. [ 75 ] Mr. Shea was interviewed for the June 1993 pre-disposition report update. He indicated he did not feel good about the theft incident of January 29 (stealing the Sony Walkman from Sears.) He also said, when asked about school: “I am not too fond of school.” ( Exhibit 17, page 158 ) [ 76 ] Mr. Shea’s school principal was contacted for comments. In his words: “It’s been a bit of a roller coaster ride.” He viewed Mr.

Shea’s behaviour as ranging from well-behaved to “bizarre.” He thought Mr. Shea was “fairly bright” although he wasn’t making much of an effort. He described Mr. Shea as a kid who “talks tough but is quite sensitive.” ( Exhibit 17, page 158 ) [ 77 ] The June 1993 pre-disposition report update reported that Mr. Shea’s mother was planning to relocate on July 1, 1993 to Calgary to be near relatives. She intended to get settled and then arrange for Mr. Shea to join her. [ 78 ] Mr. Shea did relocate to Calgary to live with his mother. But the arrangement was fraught.

In January 1994 he received 10 months’ probation for possession of a weapon. ( Exhibit 17, page 263 ) He had produced a knife in October while having a dispute with his mother and threatened her with it. ( Exhibit 5, page 32 ) [ 79 ] In August 1995 Mr. Shea was 15 and effectively homeless. A note on the Confidential Instructions for the Crown relating to theft charges of August 16 indicates in the bail section: “Accused on the run re other charges. Has no place to live.

Accused just returned from Ottawa after getting caught in stolen car.” ( Exhibit 17, page 238 ) [ 80 ] The Confidential Instructions for the Crown for August 23 charges for theft and mischief contain the following notation: “Should hold in custody. Subject not wanted at home (this from Children’s Aid) and has already refused to stay in a shelter. Subject NEEDS SAFE PLACE TO STRAIGHTEN OUT HIS LIFE.” ( Exhibit 17, page 258, emphasis in the original ) [ 81 ] Cst. Robert Wall had a brief conversation with the 15 year old Shawn Shea after his arrest for the August 23 theft.

The notes from this conversation indicate the officer’s views on Mr. Shea’s situation: “Even in those brief moments it was very apparent that the accused was lost. He told me, reluctantly, that he left home and admitted that his step-father and he do not get along. Also stated that his birth father took off when he was very young.

The last time he saw him was six years ago…At any rate, it appears he needs more that being TAXIED to a youth shelter and in this case incarceration may insure (sic) that he makes it to school this fall and gets a chance to rebuild.” ( Exhibit 17, page 260, emphasis in the original ) [ 82 ] Convictions for the thefts and mischief charge netted Mr. Shea 4 months in custody. A string of thefts committed in the period of April to August 1995 added additional weeks of custody at a sentencing that took place on September 13, 1995. At the September sentencing Mr.

Shea was also sentenced for the July breach of a curfew condition in an undertaking and uttering threats on August 3,

1995. [ 83 ] The threats offence was committed when Mr. Shea was spoken to by the shift manager of the McDonald’s restaurant on Herring Cove Road about being on the property. (The police report indicates that Mr. Shea had been loitering on the property and being a nuisance.) Mr. Shea reacted to the shift manager by threatening to kill him and “his whole fucking family.” According to the police report while making the threat Mr. Shea was banging a large stick on the ground. ( Exhibit 17, page 225 ) Before he walked away, Mr.

Shea also pointed out the shift manager’s vehicle and told him he knew where he lived. ( Exhibit 17, page 235 ) [ 84 ] 1995 ended with Mr. Shea, now 16, being sentenced on December 14 for a September theft and a breach of his release conditions. He received concurrent time to the custodial time he had accumulated at the September 13 sentencing. [ 85 ] In 1996, Mr. Shea was sentenced on three occasions – once in April and twice in October. His offences took place in February, July, and August.

They continued to be non-violent offences: taking a motor vehicle without consent, public mischief (providing a false name), breaches, theft, possession of stolen goods, and unlawful use of a credit card. He received more time in youth custody. [ 86 ] The police report of the February car theft incident indicates that during the pursuit of the speeding vehicle, when one of the police officers was alongside, the vehicle swerved toward his cruiser. While it is reasonable to infer from the police report that this was deliberate, there is nothing in the records that establishes Mr. Shea was the driver.

Shortly afterwards the stolen vehicle went out of control and came to a stop. All five occupants jumped out through the passenger side and ran into the woods. Mr. Shea was one of four youths who pleaded guilty to stealing the car. ( Exhibit 17, pages 284 and 294 ) [ 87 ] A Sheriffs’ transport to court of Mr. Shea and other young persons on February 21, 1996 went very badly. Mr. Shea is documented as starting to punch at a sheriffs’ officer who entered the cell to speak with him about handing over his sneakers. Even once the sheriffs had Mr. Shea down, he continued to punch, kick, and swear.

Capsicum spray was used and Mr. Shea had to be decontaminated. He and the other youths continued to be very verbally abusive toward the sheriffs’ officers and smashed their food all over the cell area. During the trip from Shubenacadie Court to the cells at Spring Garden Road, the youths continued to use abusive language and tried to break the van door down by kicking at it. They also tried to spit on the sheriffs’ officer who reported never experiencing such behaviour and abusive language before even in his experience with Federal prisoners.

He noted: “I have to remind myself that these were just children and that makes it all the harder to believe.” ( Exhibit 17, Sheriffs’ Incident Report of February 21, 1996, pages 289 and 290 ) [ 88 ] Mr. Shea’s April 11, 1996 sentencing proceeded with the benefit of a presentence report dated March 27, 1996. ( Exhibit 17, pages 305 – 309 ) It noted that Mr. Shea was now 16. He had a Grade 8 education. The report indicated that Mr. Shea had lived in Calgary with his mother for about 18 months until they returned to Halifax in May 1995. Mr.

Shea advised that since July 1995 when he left the group home he had been placed in he had been living on the streets except for an occasional return to stay with his mother. [ 89 ] Mr. Shea’s mother was interviewed for the presentence report and described Mr. Shea as “a good and normal child who was quiet, full of fun, and quiet with strangers.” She advised that he no longer lived at home because of his refusal to abide by rules at home, his refusal to attend school, and his lack of maturity in terms of employment. (Mr.

Shea indicated to the presentence report author that he had never had any employment other than delivering newspapers for two weeks.) Ms. Shea said her son was “a good boy who is out of control because he wants his own way.” She also said she did not believe he was abused as a child although she felt “there is something wrong deep-down inside.” Ms.

Shea thought that her son should have a psychological assessment and that he needed “involvement in programs or counselling to deal with his behaviour and the underlying issue that may be going on inside him.” [ 90 ] The author of the presentence report contacted George MacDonald, a probation officer, for comments on Mr. Shea. Mr. MacDonald had authored the predisposition report of June 1992 and the update of June 1993. His views were not positive. It was his opinion that Mr.

Shea was “emotionally-hardened” with “a serious attitude problem and a negative reputation in the community.” [ 91 ] The conclusions in the March 27, 1996 presentence report reference Mr. Shea’s “disregard for the rights and dignities of others, his lack of insight into his behaviour, and the absence of any commitment to make changes to his general conduct…” This unhappy profile was Mr. Shea at 16. [ 92 ] Mr. Shea’s second sentencing in 1996, on October 16, generated an updated pre-sentence report dated September 30, 1996 attaching a pre-disposition report. By the time of the presentence report, Mr.

Shea had been living on the streets, in the Waterville Youth Centre, and occasionally at home with his mother. He had a strained relationship with his mother’s new husband and he had not been attending school. He had not found a job and told a probation officer that he committed crimes in order to support himself and buy clothes as the financial support he received from his mother, who was on social assistance, was minimal. ( Exhibit 18, page 364 ) Mr.

Shea also made the observation that he did not think before he committed the car theft in February 1996 and, as reported in a pre-disposition report prepared for that sentencing in April, “…with some emotion [he said] ‘I’m sorry.” [ 93 ] The author of the September 30 presentence report spoke to Mr. Shea’s mother about how Mr. Shea had done since his release in May 1996 from the Waterville Youth Centre. She advised that her son “did not do much of anything upon his release” and soon became re-involved with the “old crowd” with whom he had got into trouble previously. She expressed exasperation that Mr.

Shea continued to break the law and associate with negative peers. Her efforts to assist him had been unproductive: she had tried to involve Mr. Shea in counselling (presumably referring to the Atlantic Child Guidance counselling that Mr. Shea stopped attending), had become involved in the Tough Love program and had arranged for Mr. Shea to have a “big brother”. She felt that Mr. Shea “was given numerous opportunities to prove himself but, once again, got himself into trouble…” ( Exhibit 18, pages 360 and 361 ) He rebelled, and would not listen or participate. Ms. Shea saw the future as bleak for Mr.

Shea if he did not make better choices, saying: “I’d rather see him stop now than end up doing a lot of time in jail.” ( Exhibit 18, page 361 ) [ 94 ] Ms. Shea told the author of the presentence report that her son knew he could not blame his troubles on peer pressure. He was making his own decisions and was aware that he might have to “learn the hard way.” She thought the fact that Mr. Shea had only seen his biological father approximately three times in his life might be having a negative effect on him. ( Exhibit 18, page 361 ) [ 95 ] In 1997 Mr.

Shea was sentenced twice: on September 2 for failure to comply with his sentence and on October 15 for possession of

stolen goods over $5000. He received additional time in custody; in the case of the stolen goods offence, 8 months concurrent in the Waterville Youth Facility (“Waterville”). The stolen property consisted of camera equipment and a valuable laptop computer taken from the Halifax Herald offices. It was located and returned. ( Exhibit 18, pages 453 and 454 ) [ 96 ] On January 7, 1998, Mr. Shea was sentenced for a failure to comply with his sentence from September 1997. He received concurrent time to the sentence he was serving. [ 97 ] Other offences from 1997 caught up with Mr. Shea in 1998.

He was sentenced in late January, March, April, and May for break and enters from the previous summer, possession of stolen goods over $5000, theft over $5000, and a breach of release conditions. An incident on July 6, 1997 led to a charge of resisting/obstructing police for which Mr. Shea was sentenced on April 14, 1998. [ 98 ] A presentence report dated January 22, 1998 was prepared for Mr. Shea’s sentencing on January 28. This PSR noted that Mr. Shea had spent several custodial terms in Waterville and otherwise had been living with Debbie Melvin when in the community. Mr.

Shea indicated to the author of the presentence report that he believed his mother was living in Ottawa. He was not in contact with her and according to the PSR had not heard from her since she left the area “while he was in custody about one year ago.” ( Exhibit 18, page 710 ) [ 99 ] Mr. Shea had been introduced to Debbie Melvin in May 1997 by her son, Jimmy. She had taken Mr. Shea in as he had been sleeping in a bus shelter. She told the author of the presentence report that Mr.

Shea had followed the rules in her home and “enjoyed playing with her other children during the summer.” ( Exhibit 18, page 720 ) Of course Mr. Shea’s criminal record indicates that during the summer of 1997 he was also committing crimes, notably a break and enter in June and another one in July. [ 100 ] Ms. Melvin indicated that an arrangement had been made for Mr. Shea to attend school in October 1997 and she “stressed the need for him to become involved in school and work in order to do well in the community.” ( Exhibit 18, page 710 ) Ms. Melvin had visited Mr.

Shea at Waterville and was willing to provide ongoing support to him. [ 101 ] Mr. Shea showed little insight in his interview for the January 22, 1998 presentence report, indicating that he had had no recent contact with a mental health professional and felt he did not need counselling. ( Exhibit 18, page 711 ) Although Mr. Shea described himself as “smart”, explaining this to mean if he wanted to do something he could usually figure out a way of doing it, he was unable to identify how he could stay out of trouble.

Describing the break and enter on July 23, 1997 as “somewhat impulsive” he said he should not have done it and said that “he knows that he would not get involved in such an event again because he would think of the consequences of his behaviour.” However he was unable to explain to the author of the presentence report how this consequence- awareness had developed or changed since being in custody. ( Exhibit 18, page 712 ) [ 102 ] Interestingly, despite the Waterville Incident Reports I discuss below, the comments from Waterville in the presentence report are quite positive. Mr.

Shea was housed in the unit that carried out daily maintenance in the institution. Mr. Shea was described as “a person who does good work” and someone who was doing well in completing a correspondence course. The following was noted: “In a structured environment he is responding well, though he does have at times an argumentative and defiant nature that sometimes flares up in the form of bad temper.

He is considered very street-wise and is not considered to be particularly trustworthy, though he is conducting himself on a day-to-day basis in a way that helps him evade negative consequences in the institution.” ( Exhibit 18, pages 712 to 713 ) [ 103 ] Despite Mr.

Shea’s stated plans to go to school and get a job once released, which he saw as opportunities to give him something to do and avoid trouble, the author of the presentence report concluded with these comments: “…there is no indication as to how he would be able to do any better at accomplishing his stated objectives than he was in the past…[particularly in light of] his lack of insight into his misbehaviour in the community.” ( Exhibit 18, page 713 ) [ 104 ] As I noted earlier in these reasons, various 1997 offences committed by Mr.

Shea did not get resolved until 1998 while he was serving a sentence in Waterville. This included a “resist arrest” charge that arose out of an altercation with police in July 1997. Police had attempted to arrest Mr. Shea for various Motor Vehicle Act offences associated with riding a bicycle without a helmet and dangerously. ( Exhibit 19, page 728 ) When police officers eventually caught up with Mr. Shea who had fled from them, a struggle ensued and it took several officers to restrain Mr. Shea and handcuff him. ( Exhibit 19, page 729 ) Even in police custody, Mr.

Shea was out of control, swinging his head at the officer placing him in the patrol car and “thrashing” around inside the vehicle once secured behind the “silent partner.” ( Exhibit 19, page 729 ) [ 105 ] In October 1998 there was a review of Mr. Shea’s January 28 twelve month custodial youth sentence for break and enter. His sentence was scheduled to expire on January 16, 1999. A letter dated October 8, 1998 from the Program Administrator of the Spryfield Continuing Education Program indicated that Mr. Shea had been accepted into the Spryfield Continuing Education GED preparation course.

The course was to be from November 1998 to April 1999 and Mr. Shea was to be registered to write the GED in May of 1999. ( Exhibit 19, page 756 ) [ 106 ] A progress report dated October 8, 1998 was filed for Mr. Shea’s sentence review. Mr. Shea was interviewed at Waterville for the report. He advised that it was his intention to move back in to Debbie Melvin’s home once he was released. Ms. Melvin had been visiting Mr. Shea in Waterville regularly as had her husband and their children. In the summer of 1998 Mr.

Shea had been visited three times by his mother when she was in Nova Scotia. ( Exhibit 19, page 763 ) [ 107 ] Mr. Shea told the author of the progress report that he had been working in the kitchen at Waterville and also in the maintenance detail. He said he had learned to bake. He had dropped out of a correspondence course and was now preparing for his GED exams. ( Exhibit 19, page 764 ) [ 108 ] Debbie Melvin was interviewed for the progress report and expressed her belief that Mr. Shea had “in her presence…shown a change of attitude.” It seems that it was Ms. Melvin who arranged for Mr.

Shea to complete his GED and she advised that she and Mr. Melvin were prepared to offer him “employment and housing so long as he does his part.” They were also “prepared to provide the strict supervision” that they felt would help him re-adjust to the community, this time as a law abiding citizen. ( Exhibit 19, page 763 ) [ 109 ] Mr. Shea seems to have had plans for making some changes in his life. He said he wanted to return to Grade 12 after writing his

GED exams. He indicated an interest in getting a trade, maybe as a carpenter or a cook. He planned to get his license so he could drive a truck in his employment with Mr. Melvin, Sr. He intended to be self-sufficient financially while living with the Melvins. ( Exhibit 19, pages 763 – 764 ) [ 110 ] The progress report noted Mr. Shea’s generally poor behaviour in Waterville and the “underlying negative attitudes” that were reflected “in his resistance to programs and his minimal participation in meaningful sentence plan opportunities…” And although the progress report described Mr.

Shea as “a positive worker in the kitchen during the past several months…” as the Waterville reports themselves reveal, he was not an unmitigated success in this role. ( Exhibit 19, page 763 ) However Mr. Shea’s Custodial Report, which I discuss at paragraph 115, does contain very favourable comments about his kitchen work. [ 111 ] The progress report noted that Mr.

Shea had been unreceptive to counselling or programs, lacked insight into his behaviour, and failed to control his temper “…escalating minor conflicts into potentially violent episodes as a result of his failure to accept responsibility for his behaviour.” ( Exhibit 19, page 763 ) [ 112 ] The progress report viewed Mr. Shea as having chosen not to deal with his “underlying issues” through programming at Waterville. It noted that Mr.

Shea was “doing his time…showing signs of his anger, his insensitivity to others, and his lack of respect for authority.” The report concluded that “the most significant change since sentencing has been the passage of his time in custody.” [ 113 ] Mr. Shea’s October 1998 sentence review also had the benefit of a Nova Scotia Youth Centre Custodial Report (undated). ( Exhibit 19, pages 757 to 760 ) Prepared by Ben Hachey, a youth worker, the Report notes that Mr. Shea was remanded to Waterville on September 28, 1997 and ultimately received 15 months in custody. Mr. Hachey reported that staff reports for Mr.

Shea indicated “an argumentative and aggressive youth, which could characterize his term while at the Nova Scotia Youth Centre.” ( Exhibit 19, page 757 ) It was noted that Mr. Shea’s placement, on October 10, 1997, on the Maintenance Unit, “immediately” led to difficulties “primarily as a result of arguing over insignificant points, an inability to see another’s point of view, and lack of respect for authority.” Mr.

Hachey stated that: “Staff reports consistently describe a difficult and obstinate youth who has stuck to his anti-social beliefs and actions throughout his stay.” ( Exhibit 19, page 758 ) [ 114 ] Peer interactions were characterized as problematic as Mr. Shea was said to attempt “to intimidate and control his fellow residents, especially the small and weak.” This led to “physical conflicts” and concerns about “loss of face”. [ 115 ] As contrasted to the Incident Reports I am about to review, Mr. Hachey reported that Mr.

Shea “has done notably well in the Vocational Kitchen Program and has earned consistently good reports from supervisory staff.” Mr. Shea was described as “diligent in the performance of his kitchen duties and is quick to volunteer for extra shifts.” Mr. Shea responded best to immediate rewards such as money but “struggles” where “gratification or benefit is delayed.” ( Exhibit 19, page 758 ) [ 116 ] Mr.

Shea was described in the Custodial Report as “immature, aggressive and impatient, with little effort recorded to curb his anti- social behaviours.” It was noted that “little meaningful growth has been seen.” ( Exhibit 19, page 758 ) [ 117 ] Mr. Shea’s sentencing plan at Waterville had been focused on education, anger management and vocational training. There had been little progress in any of these areas. He had been taking a correspondence course but abandoned it once the assignments became more difficult.

His Custodial Report saw him as capable of doing the work but refusing to ask for help and giving up “quickly…if the answer is not obvious.” ( Exhibit 19, page 759 ) [ 118 ] As for anger management, no progress was reported. Mr. Shea was said to be “comfortable with his lifestyle and sees no need to control his temper if it can be useful in certain circumstances.” One on one counselling was “utilized to little effect, to the point of outright refusal by the young man to participate.” ( Exhibit 19, page 759 ) [ 119 ] Mr.

Shea’s kitchen work was what the Custodial Report mentioned in the context of vocational training. He was described as “quite an asset as a kitchen worker…who has received glowing reports from his supervisors.” It was thought he had developed “some skills which could become useful upon release.” These skills were not identified. His inconsistency as a maintenance worker was noted and it was reiterated that staff reports describe “a moody and angry young man at times.” ( Exhibit 19, page 759 ) [ 120 ] The Custodial Report concludes by saying that Mr.

Shea “can be determined and hard-working…” It suggested that “given the ideal circumstances” he could lead a life free of crime…” but would have to be dedicated to achieving that goal. It is impossible to know exactly what Mr. Hachey meant when he referred to Mr. Shea needing “ideal circumstances” in order to live a crime-free life, especially as Mr. Shea’s circumstances had always been far from ideal. [ 121 ] Exhibit 18, at pages 529 to 665 contain incident reports relating to Mr. Shea when he was in custody at the Waterville Youth Centre from October 1997 to October 1998.

The reports record incidents of unacceptable horseplay with other youths, disruptive, immature behaviour, abusive language toward staff members, and acting out in response to perceived unfairness. For example on November 14, 1997, Mr. Shea failed to respond to repeated directions to stop banging on his door and encouraging other youths to “go off.” Mr. Shea later explained that his behaviour was a reaction to his perception that a disciplinary sanction was unjustified. Waterville staff writing up the incident report told Mr.

Shea that if he “wanted to present his case in a more appropriate manner…” he would be listened to. ( Exhibit 18, page 650 ) [ 122 ] The Waterville incident reports are an early indication that Mr. Shea could become upset when he thought he was being treated unfairly. His disciplinary record as an adult offender contains similar examples of Mr. Shea reacting to perceived injustices. [ 123 ] By January 1998 Mr. Shea had made some progress in terms of managing his behaviours.

An incident report from January 22, 1998 contains the following comments: “[Youth Worker] states that YO [Young Offender] Shea did accept responsibility and has shown that he is making gains in regards to displaying more appropriate behaviour and some self-control.” When sanctions were imposed it was noted that Mr. Shea accepted the sanctions “and was informed that his improved behaviour has not gone unnoticed.” ( Exhibit 18, page 645 )

[ 124 ] That being said, the reports continue to document verbally belligerent, argumentative and defiant behaviour by Mr. Shea. He was quite resistant to doing chores and appears to have been lazy and indifferent about work. A May 13, 1998 Information Report contained this note: “In the opinion of this writer YO Shea is too irresponsible and argumentative to be effective as a maintenance worker.” ( Exhibit 18, page 628 ) [ 125 ] An Incident Report dated July 5, 1998 noted that Mr. Shea had garnered his third sanction in six days for disrespectful behaviour with staff.

The writer commented about the sanctions: “Obviously he does not take them seriously.” [ 126 ] The Incident Reports refer to Mr. Shea showing a better side of himself in the context of kitchen work at the facility. For example, an Incident Report of July 20, 1998, states that Mr. Shea had been conducting himself in a manner that contrasted unfavourably with his behaviour in the kitchen: “YO Shea has demonstrated out of control behaviour that it not in keeping with his role as a trusted kitchen worker.

YO Shea must learn that he cannot do whatever he wants, especially when it is disruptive to the swim lesson program.” ( Exhibit 18, page 573 ) [ 127 ] Mr. Shea’s defiance of staff continued throughout his time in Waterville from October 1997 to October 1998. On October 5, 1998 when he finally complied with a staff request to move some storage boxes his attitude was poor: “I’m not your bitch” he said to the youth worker. ( Exhibit 18, page 537 ) [ 128 ] An Incident Report on October 8, 1998 referenced a staff investigation into gambling and muscling on Mr. Shea’s unit.

Staff reported that their investigation pointed to Mr. Shea having punched another youth “several times over gambling debts.” Mr. Shea denied any involvement and was “cocky and sarcastic” when he was told that Waterville would be recommending his transfer to an adult correctional facility. Mr. Shea is reported to have responded with: “Good, I want to go and I’ll sign whatever I have to…I can’t wait to go to the Correctional Centre.” ( Exhibit 18, page 530 ) Conflict with the Law as an Adult [ 129 ] Mr. Shea was nineteen when he drew his first federal sentence of imprisonment.

Charges for break and enter, breach of probation, and possession over $5000 from May 12, 1999 led to Mr. Shea being sentenced on June 1, 1999 to two years in prison. He received two years on the break and enter and concurrent custodial sentences on the other offences. [ 130 ] Older charges, from November 23, 1998 of assault and assault causing bodily harm, took longer to make their way to disposition. Mr. Shea was sentenced in Provincial Court on June 14, 2001 for these offences and received 60 day concurrent jail sentences with one years’ probation for each.

The alleged offence occurred at the Waterville Correctional Facility. Mr. Shea and others approached another resident who was going to bed. They advised him that he “may as well face it now.” ( Exhibit 6, page 98 ) The victim’s mattress was pulled on to the floor. Mr. Shea is alleged to have run across the room and “drop kicked” the victim. A friend of the victim attempted to intervene and was also assaulted by the group. Mr. Shea was also charged for punching one of the victims numerous times in the head. [ 131 ] The November 23, 1998 assaults were Mr.

Shea’s first convictions for actual (as opposed to threatened) violence. He was just 19 when they were committed. [ 132 ] On April 18, 2001 Mr. Shea committed another break and enter. In September he was charged with possession crack cocaine for the purpose of trafficking. His sentencing for both of these offences took place on November 23, 2001. He pleaded guilty and received his second federal term of imprisonment on the drug charge – two years – with a one year consecutive sentence for the break and enter. [ 133 ] On May 29, 2002, Mr. Shea was sentenced for a second time for violence.

On April 8, 2001 he was observed by a security officer at the Shopper’s Drug Mart in Herring Cove attempting to shoplift. When the security officer identified himself and told Mr. Shea not to return, Mr. Shea “raised his hand in a fighting stance.” In response to the security officer making it appear that he was calling the police on his cell phone, Mr. Shea picked up a 3-inch rock and threw it at the security officer’s head. ( Exhibit 19, page 930 ) Mr. Shea was sentenced to one month consecutive for this assault with a weapon. At the time Mr.

Shea was on Statutory Release from Renous (Atlantic Institution). [ 134 ] Mr. Shea’s third federal term of imprisonment was imposed for conspiracy to traffic drugs, an offence committed during the dates of June 16 and July 11, 2002 during which time he had been conspiring to have drugs brought into Springhill Institution. On July 14, 2005 Mr. Shea received a sentence of two years and six months. [ 135 ] A presentence report dated July 11, 2005 ( Exhibit 23 ) was prepared for Mr. Shea’s July 14 drug conspiracy sentencing. It canvased information that had been referenced in earlier presentence reports about Mr.

Shea’s childhood. Some new details were added about his mother’s poor health – Mr. Shea said she had been diagnosed with schizophrenia and had epilepsy – and how that impaired her ability to care for him. As I noted earlier in these reasons, this led to foster home and group home placements and eventually Mr. Shea stopped living with his mother altogether after she remarried. At the time of this presentence report Mr. Shea said he hadn’t spoken to his mother, who lived in Ottawa, in about two years. [ 136 ] Mr.

Shea informed the author of the presentence report that when in 2001 he had been given a federal prison sentence totaling 3 years, he had first gone to Springhil

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