Her Majesty the Queen v. James Bernard Melvin Decision – Dangerous Offender Hearing Judge: The Honourable Justice Peter P. Rosinski, 2021 NSSC 4

SUPREME COURT OF Nova Scotia C itation: R. v. Melvin , 2021 NSSC 4 Date: 20210118 Docket: 447189 Registry: Halifax Between: Her Majesty the Queen v. James Bernard Melvin Decision – Dangerous Offender Hearing Judge: The Honourable Justice Peter P.

Rosinski Heard: July 6, 7, 8, 9, 10, September 11, November 2, 3, 9, December 4 and 9, 2020, in Halifax, Nova Scotia Counsel: Christine Driscoll, Q.C., Senior Crown Counsel; Rick Woodburn, Senior Crown Counsel; and Sean McCarroll, Senior Crown Attorney for the Crown Raymond Kuszelewski and Laura McCarthy for the Defendant Introduction [ 1 ] On October 5, 2017, a jury found Mr. Melvin guilty on two counts, namely that he did, on or about the 2 nd day of December, 2008, at or near Harrietsfield, Nova Scotia: 1. attempt to murder Terry Marriott Junior, contrary to

section 239 of the Criminal Code ; and 2. conspire with, Jason Hallett, an unindicted co-conspirator, to commit the murder of Terry Marriott Junior, contrary to section 465(1) (

a) of the Criminal Code [“ CC ”]. [ 2 ] The Crown has applied to this Court to have Mr. Melvin declared a dangerous offender and sentenced to an indeterminate sentence. [1] [ 3 ] As Justice Côté stated for the majority in R v Boutilier , 2017 SCC 64 at para. 33 : This Court has characterized the sentence of indeterminate detention as being a preventive sentence "in its clearest and most extreme form": R. v. Sipos , 2014 SCC 47 , [2014] 2 S.C.R. 423 (S.C.C.) , at para. 19 .

The purpose of this type of sentence has always been "neither punitive nor reformative but primarily [the offender's] segregation from society": Report of the Royal Commission to Investigate the Penal System of Canada (1938), at p. 223. This preventive sanction can be imposed only upon offenders for whom segregation from society is a rational means to achieve the overriding purpose of public safety. [ 4 ] I am satisfied that he should be declared a dangerous offender and sentenced to an indeterminate period of imprisonment. I will also authorize ancillary orders that flow from his conviction and sentence. Mr.

Melvin’s background [ 5 ] He was born on March 11, 1982 and became an adult when he turned 18 years of age on March 11, 2000. A chronology of

significant events in his life can be found in the many assessment reports from periods when Mr. Melvin was in custody or on probation, presentence reports prepared for sentencings, [2] and the court has the report of Dr.

Shabehram Lohrasbe, MD, who has been found to be qualified to give expert opinion evidence as follows: “A psychiatrist able to provide opinion evidence in the area of psychiatry including, but not limited to, the practice of forensic psychiatry, the diagnosis, assessment and treatment of mental disorders; the diagnosis and classification of violent offenders; the assessment of risk for future violence or recidivism for violent offenders; the treatment and risk management for violent offenders; and the nature and degree of psychological harm caused by violent offenders to their victims.” [ 6 ] Next, I will briefly set out his criminal record history. 1 - Youth and Adult criminal history [3] A - Youth Record [ 7 ] At his first sentencing on December 15, 1994 , (for a charge of

summary conviction theft from Sears – the matter had been referred through Alternative Measures, but because of Mr. Melvin’s attitude it was unable to proceed and therefore was dealt with through the courts) his counsel set out his background: [4] “James Melvin is a 12-year-old young person who is before the court for the very first time today. He’s a young person who has experienced a series of traumatic events during the past year. He has seen his father tried and convicted of trafficking in narcotics and just over a year ago his father left the family home to do an eight-year prison sentence.

Since then his family has had to rely upon family benefits for financial survival.… However, Jimmy has dealt well with these changes . He’s kept up in school. He is presently a Grade seven student at BC Silver Junior High School. He is also kept up with his involvement in organized sports. He plays hockey in school, and also plays hockey for his school and basketball and baseball.… Jimmy has daily interactions with an attentive and loving mother… and has the support of the grandmother and aunt are also here.

The crisis that has followed… that has happened in this family regarding his father and the financial difficulties will be around for some time. The need for some help and guidance to get through this time has not gone unnoticed. Jimmy and his mother have attended at the Atlantic Child Guidance Centre and it’s hoped that could at some point in the future provide further stability of the sort that Jimmy needs at this point. I would submit that Jimmy, by being apprehended by the police and coming before this court has learned his lesson at this point.

I am also informed by his mother that he and his mother had a long talk about theft and the consequences of breaking the law. Given his father’s recent incarceration this was a lesson that was not lost on Jimmy.” [My bolding added] [ 8 ] In an October 10, 1995 report by Probation Officer LWE Saunders wrote: “ With regard to mental health, offender Melvin advised he was scheduled to attend an anger management program set up by his and other schools.

However, after one or two sessions same left the group… states that he was not under the influence during the commission of any of the above offences and does not have any addictive problem with any form of substance… was interviewed at the Shelburne Youth Centre.

He was at that time in the Special Attentions Unit, and this was further complicated by the fact that he was also on a “24” which indicated that he was of such attitude and demeanour that he was required to remain in his single room for at least 24 hours… James Melvin expects that some period of custody is expected to form part of the disposition and indicated that he wished to go to Waterville because all his friends were there . It is noted that the offender should be housed in the Orientation Unit of the Youth Centre.

Standard procedure involves a one-week period in Orientation then the subject is transferred to another unit. However, SAU [Special Attentions Unit] personnel believe that James Melvin has never completed orientation because of his attitude and demeanour and thus numerous transfers to SAU .” [My bolding added] [ 9 ] In a February 19, 1997 Progress Report by John Sarsfield, Youth Worker at the Nova Scotia Youth Centre, he stated: “ [Mr. Melvin] has expressed no desire whatsoever to take

part in any of the Nova Scotia Youth Centre’s programming . Having spent most of his time in-room confinement, the youth has not permitted staff an opportunity to help him help himself”. [My bolding added] [ 10 ] In the first court ordered assessment, dated February 28, 1997 , Dr. John S. Bishop, Psychologist, stated in relation to Mr. Melvin:

“This is the second assessment of this almost 15-year-old young offender, although it is the first one to be completed in response to a court order. The court order makes note of the young offender’s history of violence and focuses on the question of the treatment/therapy options.

The initial assessment was completed on May 27, 1996 [9 months ago] secondary to a referral from Deputy Superintendent… The referral was made because of the young offender’s history of ‘going off’… His psychological test results pointed to a conduct disorder of moderate to severe intensity with the likelihood of disruptive acting out behaviour.

The results further indicated that he was an individual with poor impulse control, and a low frustration tolerance who sought constant stimulation and who was a risk taker in terms of his behaviour… Results further indicated the likelihood that he would display serious antisocial behaviour and that because of his difficulty in controlling his anger, the behaviour could well be aggressive in nature … He was likely to try to shift the blame for any of his own unacceptable behaviour on to others… Basically a manipulative individual who did not trust others… Prone to outbursts of temper if things did not go his way… had many of the personality characteristics of adolescents who have marked problems in terms of substance abuse… When these results were presented to him the following day, he admitted that the findings were a very accurate description of him, but he simultaneously denied that he had any kind of problems or difficulties … The initial assessment concluded by noting the treatment with him was likely to be very difficult because of his insistence that he had no problems and because of his mistrust of others, which would make it difficult for him to relate to any therapist.

Consequently, it was recommended a behavioural managerial approach to him should be taken, rather than trying to implement a talking, insight type of therapy… Current MMPI-A results are almost identical to those that were obtained nine months ago… Diagnosis continues to be that of a conduct disorder of moderate to severe proportions, highlighted by impulsive and aggressive acting out behaviour of a very antisocial nature… the probability of a significant substance abuse problem, and the rather discouraging findings regarding treatment are virtually identical to the earlier findings .” [ 11 ] On March 3, 1997 , Mark Smith, Unit Supervisor at the Nova Scotia Youth Centre wrote: “On February 21, 1997 a Progress Report was completed on young offender James Bernard Melvin… was transferred to the Nova Scotia Youth Centre on October 8, 1996 for his

part in disturbances at the Shelburne Youth Centre . Since the completion of the February 21 report, Mr. Melvin has continued to be a source of major concern for staff. On February 25 young offender Melvin completed sanctions from a previous Level 3 incident report.

After four days back on the unit, he was involved in two physical altercations on the unit where he assaulted two separate staff within a four-hour period.… It is uncertain whether or not the Nova Scotia Youth Centre offers any program which this young man will allow himself to benefit from .” [My bolding added] [ 12 ] On April 10, 1999 , Mark Smith, Unit Supervisor at the Nova Scotia Youth Centre authored a report addressed to the Deputy Superintendent regarding Mr. Melvin: “Minutes after young offender Melvin was issued a blanket, he complained that he wanted a different blanket.

When advised that he would not receive another blanket he began to escalate his behaviour and was verbally abusive towards this writer and Youth Worker Stacey… During this incident young offender Melvin repeatedly threatened this writer… threatened to kill [me] the first time he saw me in Halifax. This type of abusive language continued, and Melvin continued to make racial comments.

As well , young offender Melvin was extremely abusive towards Youth Worker Garnet Stacey and made threats toward Youth Worker Stacey safety and family.… Note that Youth Worker Stacey has been a constant target of young offender Melvin and he has made several threats against the safety of Mr. Stacey and his family ...” [5] [My bolding added] [ 13 ] In

summary, in the period between April 21, 1994 and April 7, 1999, he has: 1. 8 separate convictions for assaults, threats and engaging in threatening conduct, and possession of firearms or weapons, and 2. 15 separate convictions for breaches of release conditions or probation. [ 14 ] His first sentence of incarceration was imposed on October 16, 1995.

In 12 of his 15 appearances for sentencings he received some period of custody. [ 15 ] As I stated in R v Morine , 2011 NSSC 46 , regarding the Youth Criminal Justice Act , and with its predecessor the Young Offenders Act , the focus is on the rehabilitation of young persons who commit criminal offences, recognizing that their immaturity necessarily reduces their “moral blameworthiness” or culpability in relation to crimes they commit: R v DB [2008] 2 S.C.R – the spectrum of moral blameworthiness is expansive: [6] 10 Now, one can imagine a spectrum of moral blameworthiness insofar as the responsibility for criminal actions are concerned, spanning - on the one end, those persons unfit to be tried; then leading into children less than 12 years of age who are unable to be tried under the Criminal Code ; next, adult persons, yet not criminally responsible, who are dealt with separately under the Criminal Code .

Then we have children between the ages of 12 and 18 years, who are considered to have a diminished moral culpability or blameworthiness, based on their immaturity-heightened vulnerability. And lastly, we have persons 18 years or older, who are presumed to be in a fit state of mind and able to distinguish right from wrong and, thus, are responsible as adults for the consequences of the offences they commit.

11 This

summary is taken in part from the Supreme Court of Canada case, R. v. B. (D.), 2008 SCC 25 (S.C.C.), at paras. 41 and 106. 12 What is moral blameworthiness? In R. v.

Ruzic, 2001 SCC 24 , [2001] 1 S.C.R. 687 (S.C.C.), Justice LeBel for the SupremeCourt of Canada, in discussing the defence of duress (not relevant in this case), framed the discussion as follows: As we will see below,this Court has recognized on a number of occasions that moral blameworthiness is an essential component of criminal liability which isprotected under s.7 [of the Charter of Rights and Freedoms] as a "principle of fundamental justice". [at para. 32] He continued: Whatunderpins both these conceptions of voluntariness is the critical importance of autonomy in the attribution of criminal liability, [and I'momitting the citations].

The treatment of criminal offenders as rational, autonomous and choosing agents is a fundamental organizingprinciple of our criminal law. Its importance is reflected not only in the requirement that

an act must be voluntary, but also in thecondition that a wrongful act must be intentional to ground a conviction. Like voluntariness, the requirement of a guilty mind is rooted inrespect for individual autonomy and free will and acknowledges the importance of those values to a free and democratic society:[Martineau, at pp. 645 to 46]. Criminal liability also depends on the capacity to choose - the ability to reason right from wrong.

AsMcLachlin J. observed in Chaulk ... at p. 1396, in the context of the insanity provisions of the Criminal Code, this assumption of therationality and autonomy of human beings forms part of the essential premises of Canadian criminal law: At the heart of our criminal lawsystem is the cardinal assumption that human beings are rational and autonomous: ... This is the fundamental condition upon whichcriminal responsibility reposes.

Individuals have the capacity to reason right from wrong, and thus choose between right and wrong.Ferguson continues (at p. 140): It is these dual capacities - reason and choice - which give moral justification to imposing criminalresponsibility and punishment on offenders. If a person can reason right from wrong and has the ability to choose right or wrong, thenattribution or responsibility and punishment is morally justified or deserved when that person consciously chooses wrong. 13 And then there's a relevant citation here from Justice Sopinka, in dissent, in the R. c.

Daviault, (SCC), [1994] 3S.C.R. 63 (S.C.C.), commenting on the Court's consensus that: The first requirement of the principles of fundamental justice is that ablameworthy or culpable state of mind be an essential element of every criminal offence that is punishable by imprisonment. Thisprinciple reflects the fact that our criminal justice system refuses to condone the punishment of the morally innocent. ... The secondrequirement of the principles of fundamental justice is that punishment must be proportionate to the moral blameworthiness of theoffender. ... That's at paras. 104 and 106. 14 In

summary, our criminal justice system assigns responsibility for criminal actions on a proportionate basis. The greater the capacityof the person for reason and choice, the greater the responsibility.

Moreover, since the punishments must also be proportionate to thegravity of the offence and the degree of responsibility of the offender, according to s. 718.1 of the Criminal Code, the penalty forcriminal actions is also determined upon a proportionate basis. 15 It has also been said that "mens rea", that is, guilty mind: ... connotes volition on the part of the accused, that is to say, given anawareness that certain consequences will follow (or will probably follow) if he acts, an accused who chooses to act when he has thealternative of not acting "intends" those consequences in the sense of choosing to bring them about ....

Mewett and Manning, CriminalLaw, (Second Edition, 1985 at p. 113) 16 This idea of a spectrum also relates to the state of mind of an offender or in the nature of the offence.

For example, one can see thespectrum of deliberation, if you will, or thought, and the mens rea underlying it, as including ranges running from criminal negligenceunder ss. 219 and 221 of the Criminal Code, which requires that one, in doing anything or omitting to do anything one has a legal duty todo, shows wanton or reckless disregard for the lives or safety of other persons. 17 Next, we might have what's called penal negligence, such as unlawful act manslaughter, where there is a deliberate intention to do theunderlying act and, on top of that, there is objective foreseeability of the consequences thereof to others that are neither transient nortrivial and which do, in fact, cause death. 18 And we also have offences where actual intention or deemed actual intention to do a criminal act are involved, such as thoseinvolving wilful blindness or recklessness which equate, if you will, or are deemed to be the actual intention to do prohibited acts. 19 We can also consider a spectrum of deliberation as to consequences.

Most criminal offences are what are traditionally called generalintention offences, where it is sufficient to be found guilty if you intend to do the prohibited act and then you are responsible forwhatever consequences are caused thereby. An example of this would be dangerous driving causing death - R. v.

Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49 (S.C.C.). 20 There are a limited number, but still some criminal offences which are traditionally called specific intent offences, and those are oneslike murder, where not only do you intend to do the underlying act, but you intend the consequences as well, which is the intention tokill, in that case. 21 This context, although it seems abstract, does allow the Court to see where an offender such as Mr.

Morine sits on the spectrum ofmoral blameworthiness generally and how his responsibility individually should be adjusted for the circumstances of the offence and hisown circumstances, to result in a specific moral blameworthiness, if you will, for him, in these circumstances. 22 To me, the degree of offender responsibility and the gravity of the offence are at the core of what is moral blameworthiness. To this Iadd the specific circumstances of the offence and the offender before applying the relevant law to determine an appropriate sentence. B - Adult Record [Mr.

Melvin turned 18 years old on March 11, 2000; the predicate offences herein were committed onDecember 2, 2008][7] [16] His first adult offence occurred in December 2000 – uttering threats –

section 264.1 CC. [17] His last adult criminal offence for which he has been convicted occurred on March 24, 2018 – assault causing bodily harm to apeace officer –

section 270.01(1) CC - the victim being Greg Aitken, Correctional Officer.[8]

[ 18 ] In

summary, in that time interval, he has 34 separate convictions for assaults, threats and engaging in threatening conduct, and possession of firearms or weapons. [ 19 ] His first adult sentence (30 days incarceration) was imposed on April 4, 2001, for offences stemming from December 2000 and January 2001 . [ 20 ] His second sentence (incarceration of two years in custody in a federal penitentiary) was imposed on May 18, 2001, for trafficking contrary to s. 5(2) CDSA on December 22, 2000 , assault causing bodily harm s. 267 CC on December 31, 2000 , possession of ammunition contrary to prohibition order s. 117.01 CC on January 2, 2001 , and four counts of uttering threats s. 264.1(1) (

a) CC on February 16, 2001 . [ 21 ] On December 6, 2002 he was sentenced to a consecutive three years in custody in a federal penitentiary for conspiracy to traffic cocaine on June 8, 2002 , which he served to warrant expiry date in May 2006. [9] [ 22 ] Once released in 2006 , he committed offences on: June 14, June 15, June 23, September 4, September 25, 2006 . [ 23 ] He committed offences in 2007 : March 12 and March 13 , for which he was sentenced to time served March 12-September 12, 2007. [ 24 ] He committed offences in 2008 : 1.

April 4, April 5, October 13 [Exhibit 15, Tab 46, p. 5(15) – s. 264.1(1) CC , and pp. 13 and 40], and November 27 [Exhibit 23; Exhibit 15, Tab 40] 2. December 2 - attempted murder and conspiracy to commit the murder of Terry Marriott Jr. [the predicate offences herein for which he was arrested in 2015, and convicted on October 5, 2017 - notably Mr. Melvin himself was shot in that same time interval - see R v LeBlanc , 2011 NSCA 60 – Mr. LeBlanc shot at Mr.

Melvin on December 4, 2008, striking him twice in the torso.] [ 25 ] He committed offences in 2009 : March 23 [Exhibit 15; Exhibit 23], and September 11 . [ 26 ] He committed offences in 2010 : January 24, February 10, February 11, April 25, June 2, June 5, September 20, October 6, October 26 . [ 27 ] He committed no offences in 2011 , however he was sentenced in 2011 on March 16, 2011 , for offences as follows: 1. 1 month concurrent - s. 430(4) CC - April 4, 2008 2. 2 months consecutive - s. 430(4) CC - April 5, 2008 3. 1 month consecutive – s. 264.1 CC – October 13, 2008 (New Brunswick) 4. 1 month consecutive - s. 264.1(1) (

a) CC - March 23, 2009 5. 3 months consecutive - s. 270(1) (

a) CC - June 5, 2010 - (3 x 3 months each concurrent 6. 1 month consecutive- s.270(1) (

a) CC - October 6, 2010 for a total of 12 months in custody (statutory release would be expected after eight months, in November 2011 –or he could’ve remained in custody if he was on remand regarding outstanding charges); and on December 6, 2011 – for offences of February 10, October 6 and October 26, 2010 - 21 months concurrent to any sentence being served +3 years probation (statutory release, would be expected after 14 months, in February 2013 –or he could’ve remained in custody if he was on remand regarding outstanding charges) [ 28 ] He committed no offences in 2012 , except on: November 29, 2012 – assault with a weapon s 267(

a) CC - two counts, for which on May 14, 2013, he received four months consecutive to any sentence being served. [Exhibit 17, Tab 50 – New Brunswick Provincial Court – PCJ Camille Vautour] [ 29 ] He was not convicted of having committed any offences between November 29, 2012 and July 18, 2015. [ 30 ] Dr. Lohrasbe records in his Report at page 37: “Mr.

Melvin stated that the longest continuous stretch of time in the community during his entire adulthood was for approximately 23 months between the summer of 2013 and his arrest in July 2015… He acknowledges that during those two years ‘I was smoking crazy drugs’ and that he had been ‘really high’ when he jumped off a roof and attempted to evade the police. He stated that even after his arrest on the predicate or related charges [ July 2015] there has not been any significant period of abstinence from illegal substances.

He acknowledges a variety are available in each of the four institutions where he has been incarcerated and ‘I’ll do anything to get it’.” [ 31 ] He committed offences in 2015 : [10] July 18 (trafficking and possession CDSA ) and November 28 ( s. 264.1 CC ).

[ 32 ] He committed offences in 2016 : March 16, April 1, April 5, April 6, August 8, October 21, December 5 . [ 33 ] He committed offences in 2017 : March 29, May 19, November 28 [see Exhibit 23]. [ 34 ] He committed the following offence in 2018 : March 24 (Assault on Correctional Officer Greg Aitken- s. 270.01(1) CC ) - sentenced July 30, 2019, to 10 months custody consecutive to any sentence presently being served (Mr.

Melvin’s federal sentences Warrant Expiry Date is now: January 13, 2021 - see email received by Nova Scotia Supreme Court Criminal Scheduling Office Manager Tanya Allan, on November 19, 2020, from Lyse-Anne Doiron, Regional Manager, Sentence Management, CSC which has been forthwith circulated to counsel herein.) [11] [ 35 ] In my separate reasons, R v Melvin , 2020 NSSC 346 , I have concluded beyond a reasonable doubt for present purposes, that Mr.

Melvin committed an attempted murder/aggravated assault against the victim of the September 26, 2020 incident at Atlantic Institution, Renous, New Brunswick. 2 - Previous Psychiatric assessments [12] [ 36 ] In one of the first psychiatric assessments prepared after Mr. Melvin became an adult, Dr. Risk Krofli noted on November 5, 2002 , after his admission on November 1, 2002: [13] … On November 3, Mr. Melvin settled somewhat, and he was released into the day room… Mr. Melvin attempted to get staff’s vehicle makes, addresses and family history, and asked staff to ‘hook him up’.

This was denied, and he was informed that this was inappropriate. He showed some stable mood throughout his stay and no evidence of psychosis. During his stay, Mr. Melvin received cigarettes from the outside. Upon inspection prior to delivery to the patient, correctional staff discovered that the packs were tampered with and cigarettes were cut and replaced with marijuana . The cigarettes were confiscated and Mr. Melvin was notified.

He denied any knowledge of who might send these to him… ‘I asked my mother for cigarettes, but I don’t know who dropped these, I can’t be held responsible’.” [My bolding added] [ 37 ] In her February 23, 2004 report, Dr. Melanie Cadieux describes Mr. Melvin’s clinical presentation and developmental history [he is just 21 years of age at this time] as follows: “… he stepped out of line when he tried to obtain personal information about the assessor’s life.… He is not motivated to take programs or accept help. As for his plans, Mr.

Melvin has not turned his back on his former lifestyle given that he has no intention of improving a situation through school or work and plans to return to same surroundings as before. In terms of an occupation, however, he can apparently work for his parents’ businesses which will provide him with an income… He appears to have an antisocial personality disorder with narcissistic traits and a possible substance abuse disorder… The PCL – our results show that he presents a moderate to high risk of violent recidivism… The HCR – 20 violence risk assessment guide results point to a high risk of violent recidivism.

The risk is slightly higher under release into the community than the institution. The principal factors contributing to his dangerousness are static factors: past violence, substance abuse, adjustment problems and early violence, personality disorder and failures during supervision. His characteristic static dynamic factors are probably more critical in his case: lack of insight, impulsiveness, negative attitude, and past resistance to treatment. Unaddressed and unresolved, these risk factors seem decisive in Mr. Melvin’s case inside or outside the institution.

As for future risk factors [acute dynamic factors], five points need to be considered: the relevance of his plans, exposure to destabilizing factors, support, compliance with his relapse prevention plan and stress. The subject plans for a possible conditional release are to continue living as he did in the past, without making personal changes or altering his habits in the community. It seems unrealistic to expect that he will avoid bars of the downtown area as he claims.

Exposure to destabilizing factors is likely (drugs, criminal peers, street gang, close relatives involved in crime and so on) and constitutes a major risk factor for these factors will directly encourage him to reoffend . He is unlikely to follow his relapse prevention plan considering that he defies constraints even in the institution and refuses treatment except for purely self-serving reasons. Lastly, he will likely experience stress in the community, more responsibility (such as parental responsibility), social adjustment.

He seems to have personal support available to him, but his loved ones appear to have no firm influence over his actions… His motivation and reintegration potential are rated low, his risk is rated high (inside and outside the institution) and his institutional adjustment rating is also high… [In conclusion she states, Mr. Melvin has] an antisocial personality disorder with narcissistic traits and a possible substance abuse disorder… a moderate to high risk of violent recidivism… a high risk of recidivism in or outside the institution.

He has not completed any institutional programs… we recommend that he be detained in custody .” [My bolding added] [ 38 ] Notably, he was detained by decision of the Parole Board of Canada to Warrant Expiry Date: September 17, 2006. [ 39 ] Dr. Christopher Murphy’s s. 672.11 CC court ordered assessment of Mr. Melvin dated December 17, 2015 (Exhibit 31) was elaborated upon in testimony before me. I accept his qualifications to give such opinion evidence, and his testimony. In his report under “opinion and conclusions” he stated:

“During his period of incarceration, Mr. Melvin spent a significant amount of time in segregation, which he describes as ‘psychological torture’. A review of materials provided by the North Nova Scotia Correctional Facility [in Priestville, Nova Scotia] and the Central Nova Scotia Correctional Facility [in Dartmouth, Nova Scotia] indicates that efforts were made to develop a behavioural management plan to minimize the use of segregation. These plans, however, were met with limited success, in part due to Mr.

Melvin’s behavioural issues, including refusing to comply with correctional officer directives, possession of contraband and assaultive behaviours towards fellow offenders and correctional staff. Mr. Melvin’s time in segregation has been extended due to endorsing suicidal ideation in response to seclusion , which I note is a frequent response when Mr.

Melvin feels he is overwhelmed or under significant stressors rather than a symptom of major mental illness.… He responded to fitness related questions in a manner that, in my opinion, was representative of a deep-rooted mistrust of and cynicism toward authority figures and the legal system in general rather than being suggestive of delusional thinking or other symptoms of major mental illness… Throughout our time together, however, Mr. Melvin presented as eager to engage in conversation and matters that were unrelated to the current assessment.

He presented a superficially charming, engaging in conversation with his correctional workers in a playful, joking manner that was at times over familiar, relating anecdotes about correctional officers and shared acquaintances in other facilities… Mr. Melvin’s lack of cooperation with the assessment process was felt to be a voluntary choice rather than an inability to communicate or other symptom of mental illness.” [My bolding added] [ 40 ] Dr. Murphy testified that when he made his tentative opinion clear to Mr. Melvin, Mr. Melvin jumped up and grabbed Dr.

Murphy’s notes and ripped them into shreds – and then nonchalantly reached his hand out to shake Dr. Murphy’s hand. Dr. Murphy characterized this action by Mr. Melvin as completely “unpredictable” based on his previous manner with Dr. Murphy in the room. [ 41 ] By report dated April 18, 2016 [Exhibit 18, Tab 54 page 48 and following] Dr. Murphy once again prepared a fitness to stand trial report on Mr. Melvin. Dr. Murphy testified that during that assessment Mr. Melvin was not interested in discussing his psychosocial background nor getting any help for his mental health needs. Mr.

Melvin confirmed to him that in effect “that this had all been a waste of time because he thought he was getting out of segregation” and chastised Dr. Murphy for writing what he did in the earlier December 17, 2015 report. [ 42 ] While sitting in court listening to Dr. Murphy recount details of the allegation about what Mr. Melvin had said in relation to Captain SB (regarding an outstanding charge of uttering a threat to cause death to her on November 28, 2015), he confirmed that Mr. Melvin said to him during the assessment process “I know the whore - she only wishes she could get raped”, to which Mr.

Melvin could clearly be heard (by me) saying in court: “that’s true!”. [14] [ 43 ] Dr. Murphy went on to state in his opinion, to a high degree of medical certainty, that all of Mr. Melvin’s interactions with him and correctional officers and staff had the underlying purpose of getting Mr. Melvin’s needs met. There was a well documented history of him voicing complaints and suicide threats ‘in order to get his needs met’ which was consistent with his history of antisocial personality disorder in the community and jail, and it was the same pattern of behaviour as has been historically present.

Notably, two days after his threats to Captain SB, Mr. Melvin was moved to the so-called “Burnside” (CNSCF) correctional facility where he wanted to be. Dr. Murphy confirmed in re-direct examination that during his testimony he saw Mr. Melvin gave him “the middle finger” from where Mr. Melvin was seated in custody. [ 44 ] Dr. Murphy agreed that Mr.

Melvin’s primary desire was to get out of segregation as well as also to get creature comforts, and that he was ‘self sabotaging’ in that he couldn’t consistently regulate his behaviour enough to get what he wanted in the normal fashion, so he resorted to claims of suicidal ideation and other approaches to get what he wanted. This, then would lead to further segregation once his claims of suicide risk were shown to be unfounded, or if he acted out. [15] The records available to Dr. Murphy confirmed that Mr.

Melvin had a positive history for surgical interventions for two gunshot wounds in 2008 including a splenectomy and colostomy that was subsequently reversed. The predicate offences and alleged s. 753(1) (a)(

i) and (ii) CC “pattern” offences and incidents The predicate offences [16] [ 45 ] The evidence presented at this trial included that there was a history of animosity between Mr. Melvin and Terry Marriott Junior. Mr. Melvin sought to end that conflict on December 2, 2008 . [ 46 ] He enlisted the assistance of Reagan Henneberry and Jason Hallett. [17] [ 47 ] On December 2, 2008, Mr. Melvin called Mr.

Hallett and told him to come to the Spryfield Jessy’s Pizza location at 374 Herring Cove Road - he added that the police were following and otherwise surveilling him at that location (the trial evidence confirmed that this was in fact the case). Once there, he told Mr. Hallett of his intention to kill Terry Marriott Junior, and his plan to do so. After 2 separate short trips in the cars of reluctant drivers Michael Coombs and Trevor Hanna to the Greystone Avenue area, they took great pains, travelling a significant distance through a heavily wooded rough watershed terrain to avoid being followed by the police.

They walked to the Crystal Pizza location in Harrietsfield, where Vanessa Slaunwhite picked them up in a vehicle and drove them to Warren (Wacko) Clarke’s residence. While there, Brandon Momberquette arrived with firearms (a large handgun and a semi-automatic rifle). Mr. Henneberry arrived. He drove Messrs. Melvin and Hallett, who were both armed with firearms (a handgun and at least one long gun - which had a 16 round ammunition clip, and was described as a semi-automatic rifle), towards the home of Derek MacPhee, where Terry Marriott Junior was a guest.

They intended to shoot and kill Terry Marriott Junior. [18]

[ 48 ] Mr. MacPhee had been warned that they were on their way, so he contacted police to ask them to attend at his home, as he was also afraid for his own safety. Patrol cars were sent, which had arrived just prior to the Henneberry vehicle coming around the corner of Mercury Avenue, several hundred feet from the MacPhee home. Henneberry immediately drove the car away so as to avoid the attention of the police. He drove them to a home on nearby Brunt Road where Natalie Digioacchino lived, and Mr.

Henneberry hid the guns in the woods - a mini 14 Ruger semi-automatic rifle .223 calibre matching the description of one of the rifles was found after a later search of Reagan Henneberry’s house. A female arrived and picked up Mr. Hallett. Police continuously observed, by direct surveillance, as Mr. Melvin was picked up by his brother Cory (Patrick Melvin, DOB August 26, 1985), who drove with him in his truck until he reached the family home in Fall River. [19] The Crown’s position [ 49 ] It is not disputed that Mr. Melvin has been convicted of a “serious personal injury offence” as defined in s. 752 CC .

The Crown says the December 2, 2008 offences are part of a “pattern” as described in s. 753(1) (a)(

i) and (ii) CC . [20] [ 50 ] In its written brief the Crown states: For the past twenty-five years, Mr. James Bernard Melvin Jr. (Mr. Melvin) has engaged in a pattern of unrestrained, repetitive, violent behaviour. For the past twenty-five years, Mr. Melvin has engaged in a pattern of persistent, aggressive behaviour. His actions have come at a great cost to society. Mr. Melvin is a dangerous offender that requires an indeterminate sentence. 1.1 Pattern of Repetitive Behaviour Mr.

Melvin has engaged in • Violent behaviour in the community • Violent behaviour inside Provincial institutions • Violent behaviour inside Federal institutions • Violent behaviour against strangers • Violent behaviour against people known to him • Violent behaviour that was pre-meditated • Violent behaviour that was impulsive • Violence on his own • Violence in concert with others 1.2 Pattern of Persistent, Aggressive behaviour Mr.

Melvin has engaged in persistent, aggressive behaviour • In the community • In Provincial Institutions • In Federal institutions • On his own • In concert with others 1.3 Indeterminate sentence The need for an indeterminate sentence is supported by • The report and evidence of Dr. Lohrasbe • Mr. Melvin's criminal record • The aggravated assault committed by Mr. Melvin against Josh Preeper (evidence to be called November 2, 2020) • Mr. Melvin's behaviour in Provincial institutions and • Mr.

Melvin's behaviour in Federal institutions, which all show that there is no reasonable expectation that some lesser penalty will protect society.

[51] In oral argument, Senior Crown Counsel Ms. Driscoll stated: “Mr. Melvin was first sentenced in Youth Court in December 1994. The following 26 years have brought him to this point. The Crowncertainly acknowledges that there are different things that happened to Mr.

Melvin that were not in his control that contributed to who heis today and why he’s here… [which included] the dynamic of the family into which he was born [and the fact that his father JamesMelvin Senior was sentenced to eight years in prison for drug trafficking when he was 11 years old and was therefore absent from thehome, and the fact that his family were unable to ensure he got treatment for his attention deficit hyperactivity disorder when he wasyounger]. He entered a criminal justice system that was different 26 years ago than it is today, and he spent a lot of time at a young agein segregation.

I think as a society, and a justice system that we can have sympathy and empathy for those things. At the same time Mr.Melvin is responsible for the choices he has made over the past 26 years – his substance abuse, his criminal associations, the violence,[and] what seems to be a lack of effort on his part to do anything to improve his fate. Because of all this, the cost that Mr. Melvin hasexacted on society is just too high, and it’s time for the justice system to say: ‘no more’.” Mr.

Melvin’s position [52] His counsels put his position relatively simply, inter alia that: 1. the records the Crown relies upon, which it has the burden to prove as admissible, are not properly admissible; 2. even if they are admissible, their prejudicial effect on Mr. Melvin’s fair trial/sentencing rights outweigh their probative value(including in the case of the videotape of the September 26, 2020 incident); 3. the weight that can properly be given to those records is insufficient to support the conclusions that the Crown say can bedrawn from Dr.

Lohrasbe’s testimony relying upon those records, inter alia, that suggest Mr. Melvin’s future treatment prospects are notrealistic; 4. the Crown has not met the burden of proof beyond a reasonable doubt in relation to its allegation that Mr. Melvin committeda criminal offence in relation to the September 26, 2020 incident, nor has the Crown met that burden in relation to establishing that Mr.Melvin should be designated a “dangerous offender”; 5. even if the court concludes that Mr.

Melvin is properly designated as a “dangerous offender”, the Crown has not establishedthat an indeterminate sentence is necessary, and that it is appropriate for the court to impose either a determinate sentence with a long-term offender supervision order, or preferably merely a determinate sentence in relation to the predicate offences. Are the dangerous offender provisions from the date of the offences or the date of Mr.

Melvin’s sentencing applicable? [53] As a preliminary matter, it is appropriate to identify which dangerous offender provisions prevail. [54] Generally, in the criminal law context, “purely procedural” legislative amendments operate retrospectively upon offencescommitted in the past but presently in the criminal justice system - R v Chouhan, 2021 SCC 26 , [2020] SCJ No. 101. [55] However, to the extent that legislative amendments between the time of the commission of an offence and charges being laidcould affect present substantive provisions, such as the “punishment” available, they do not operate retrospectively, because “as ageneral matter, persons accused of criminal conduct are to be charged and sentenced under the criminal law provisions in place at thetime that the offence allegedly was committed.” (R v Johnson, 2003 SCC 46).

However, they can operate prospectively because of theeffect of s. 11(

i) of the Charter of Rights which entitles any person “found guilty of [an] offence… if the punishment for the offence hasbeen varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.”[21] [56] The question arises: if the preconditions to a declaration that an offender be declared and sentenced as a dangerousoffender/long-term offender have materially changed between the date of the offence and the date of the sentencing on the predicateoffence (or the available sentencing provisions have), is this a change in the “punishment” available, and if so, which provision prevailsas the “lesser punishment”? [57] As stated in Poulin: 33 In R. v.

J. (K.R.), 2016 SCC 31, [2016] 1 S.C.R. 906 (S.C.C.), this Court stated that the underlying purposes of s. 11(

i) are the ruleof law and fairness. … … 37 Once the relevant sentencing provisions have been identified, the question becomes which of the measures or sanctions containedwithin these provisions constitute "punishments" in the sense contemplated by s. 11(i). In K.R.J., at para. 41, this Court held that ameasure will constitute punishment under s. 11(

i) when:

(1) it is a consequence of conviction that forms part of the arsenal of sanctions to which an accused may be liable in respect of aparticular offence, and either (2) it is imposed in furtherance of the purpose and principles of sentencing, or (3) it has a significant impacton an offender's liberty or security interests. [Footnote omitted, para. 41.] Notably, K.R.J. expanded the s. 11(

i) concept of "punishment" beyond what it had been before. Specifically, K.R.J. added factor (3) tothe test for punishment "to carve out a clearer and more meaningful role for the consideration of the impact of a sanction" (para. 41; seealso paras. 28 and 36). 38 Numerous measures and sanctions have been assessed against the s. 11(

i) concept of "punishment". The following measures havebeen found to qualify as punishment: the timing of eligibility for parole (Liang v. Canada (Attorney General), 2014 BCCA 190, 355B.C.A.C. 238 (B.C. C.A.), at paras. 27 and 43); pre-sentence custody (R. v. S. (R.), 2015 ONCA 291, 333 C.R.R. (2d) 160 (Ont. C.A.), atpara. 32); the conditions governing the "faint hope" regime (R. v. Simmonds, 2018 BCCA 205, 362 C.C.C. (3d) 215 (B.C. C.A.), atparas. 88-89); Criminal Code driving prohibition orders (R. v. Wilson, 2011 ONSC 89, 225 C.R.R. (2d) 234 (Ont.

S.C.J.), at para. 37);and weapons prohibition orders (Bent, at para. 71; see also R. v. Wiles, 2005 SCC 84, [2005] 3 S.C.R. 895 (S.C.C.), at para. 3 (althoughnot a s. 11(

i) case)). By contrast, the following sanctions have been found not to constitute s. 11(i) "punishment": post-conviction DNAdatabank orders (R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554 (S.C.C.), at paras. 64-65); sex offender registration (or "SOIRA")orders (see, for instance, R. v. Cross, 2006 NSCA 30, 241 N.S.R. (2d) 349 (N.S. C.A.), at para. 84); and provincial driving suspensionsimposed in response to criminal convictions (Wilson, at para. 34).

However, without commenting on their merits, I observe that theselatter decisions were rendered prior to K.R.J. … 42 Once the various "punishments" for the offence have been identified, they must be compared and contrasted to determine whichone — or ones — reflect the "lesser" punishment. Often, this determination is obvious; it selects the shorter period of incarceration overthe longer one, and the absence of a weapons prohibition over the imposition of one. However, sometimes the determination of the lesserpunishment is more nuanced.

For instance, the sentencing court comparing two competing sentencing regimes must be alive to thepossibility that each of the regimes contains some 'lesser' aspect of punishment. To this end, in R. v. Johnson, 2003 SCC 46, [2003] 2S.C.R. 357 (S.C.C.), this Court observed that while the new sentencing regime was more favourable to Mr.

Johnson if he qualified as along-term offender, the former regime would be more favourable to him if he did not, as it provided him with the benefit of an earlierparole hearing (para. 46). [My italicization added] [58] In R v KRJ, 2016 SCC 31, the court concluded that the parameters of “punishment” must be understood more broadly than hadbeen the case in the existing jurisprudence: 41 Thus, I would restate the test for punishment as follows in order to carve out a clearer and more meaningful role for theconsideration of the impact of a sanction: a measure constitutes punishment if (1) it is a consequence of conviction that forms part of thearsenal of sanctions to which an accused may be liable in respect of a particular offence, and either (2) it is imposed in furtherance of the purpose and principles of sentencing, or (3) it has a significant impact on an offender's liberty or security interests.1 42 As this Court wrote in Cunningham v.

Canada, (SCC), [1993] 2 S.C.R. 143 (S.C.C.) : "The Charter does notprotect against insignificant or 'trivial' limitations of rights .... The [state action] must be significant enough to warrant constitutionalprotection" (p. 151). That is why, if a consequence of conviction is not imposed in furtherance of the purpose and principles ofsentencing, it must have a significant impact on an offender's constitutionally protected liberty or security interests before it will qualifyas punishment for the purposes of s. 11(i).

To satisfy this requirement, a consequence of conviction must significantly constrain aperson's ability to engage in otherwise lawful conduct or impose significant burdens not imposed on other members of the public.

Again,Doherty J.A.'s comments in Hooyer are helpful: "... a prohibition that significantly limits the lawful activities in which an accused canengage, where an accused can go, or with whom an accused can communicate or associate, would sufficiently impair the liberty andsecurity of the accused to warrant characterizing the prohibition as punishment" (para. 45). [The court’s footnote number one reads: “In articulating this test, I do not decide whether s. 11(

i) would be infringed in circumstancesakin to those in Whaling , in which accelerated parole review was retrospectively eliminated, thereby impacting the length ofincarceration that was imposed as a sanction consequent to conviction.”] [My italicization added]

[ 59 ] In R v Johnson , 2003 SCC 46 , the unanimous court concluded that even though the accused’s offence was committed prior to the 1997 amendments to the dangerous offender provisions, the sentencing judge was required to consider the applicability of the long- term offender provisions, since the accused, who may have been declared a dangerous offender under the former provisions, could benefit from the long-term offender designation available under the current provisions. If the long-term offender criteria were satisfied and there was a reasonable possibility that harm could be reduced to an acceptable level under the long-term offender provisions, s. 11 (

i) dictated that the proper sentence, under the then extant regime, was a determinate period of detention followed by a long-term supervision order. [ 60 ] Mr. Melvin committed these offences on December 2, 2008. [ 61 ] Have the dangerous offender/long-term offender regime provisions changed significantly enough to trigger an obligation on the court to conduct an analysis pursuant to s. 11(

i) of the Charter ? [22] [ 62 ] In Johnson , the offender’s relevant criminal conduct took place while only the “dangerous offender” designation was available. At the time of their sentencings, the long-term offender designation and regime were also in place. The dangerous offender designation and regime had not changed. [ 63 ] As the court stated: “The question in this appeal is whether the new provisions offer any benefit to the respondent such that his sentencing must be governed retrospectively by the provisions as amended in 1997.

In order to answer this question, it is necessary to interpret both the old and new provisions, to determine which offers the prospect of a lesser punishment to an accused in the position of the respondent who was sentenced under them .” (p.369) … The essential question to be determined, then, is whether the sentencing sanctions available pursuant to the long-term offender provisions are sufficient to reduce this threat to an acceptable level, despite the fact that the statutory criteria in s. 753 (1) have been met.” (p. 376) … For the above reasons, the British Columbia Court of Appeal was correct to conclude that a sentencing judge must take into account the long-term offender provisions prior to declaring an offender dangerous and imposing an indeterminate sentence if a sentencing judge is satisfied that the sentencing options available under the long-term offender provisions are sufficient to reduce the threat to the life, safety or physical or mental well-being of other persons to an acceptable level, the sentencing judge cannot properly declare an offender dangerous and thereupon imposing an determinate sentence, even if all of the statutory criteria have been satisfied. … As a general matter, persons accused of criminal conduct are to be charged and sentenced under the criminal law provisions in place at the time that the offence allegedly was committed.

The Charter aside, the four respondents convicted of offence is committed prior to the 1997 amendments are properly sentenced under the former regime. However, s. 11(

i) of the Charter provides that any person charged with an offence has the right ‘if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.’ (p. 382) [ 64 ] The reasoning in Johnson , clearly suggests that this court must consider whether the December 2, 2008 dangerous offender/long-term offender provisions are materially different from those at present insofar as the could potentially effect different punishments. If so, Mr.

Melvin is entitled to the more favourable provisions. [ 65 ] Let me next then canvas the relevant provisions on or about December 2, 2008 and at present. [ 66 ] The significant sections of the Criminal Code for present purposes are 752, 753.1, and 753.2 CC . The provisions presently in force follow. I will not reproduce the provisions in force as at December 2, 2008. Present Provisions of the Criminal Code

752 .

Definitions In this Part, "court" means the court by which an offender in relation to whom an application under this

Part is made was convicted, or a superior court of criminal jurisdiction; "designated offence" means (

a) a primary designated offence, (

b) an offence under any of the following provisions: (i) paragraph 81(1)(a) (using explosives), (ii) paragraph 81(1)(b) (using explosives), (iii)

section 85 (using firearm or imitation firearm in commission of offence), (iv)

section 87 (pointing firearm), (iv.1)

section 98 (breaking and entering to steal firearm), (iv.2)

section 98.1 (robbery to steal firearm), (

v) section 153.1 (sexual exploitation of person with disability), (vi)

section 163.1 (child pornography), (vii)

section 170 (parent or guardian procuring sexual activity), (viii)

section 171 (householder permitting sexual activity by or in presence of child), (ix)

section 172.1 (luring child), (ix.1)

section 172.2 (agreement or arrangement — sexual offence against child), (x) [Repealed 2014, c. 25, s. 29(1) .]

(x.1) [Repealed 2014, c. 25, s. 29(1) .] (xi) [Repealed 2014, c. 25, s. 29(1) .] (xii) [Repealed 2014, c. 25, s. 29(1) .] (xiii)

section 245 (administering noxious thing), (xiv)

section 266 (assault), (xv)

section 269 (unlawfully causing bodily harm), (xvi)

section 269.1 (torture), (xvii) paragraph 270(1)(a) (assaulting peace officer), (xviii)

section 273.3 (removal of child from Canada), (xix) subsection 279(2) (forcible confinement), (xx)

section 279.01 (trafficking in persons), (xx.1)

section 279.011 (trafficking of a person under the age of eighteen years), (xx.2)

section 279.02 (material benefit — trafficking), (xx.3)

section 279.03 (withholding or destroying documents — trafficking), (xxi)

section 279.1 (hostage taking), (xxii)

section 280 (abduction of person under age of 16), (xxiii)

section 281 (abduction of person under age of 14), (xxiii.1) subsection 286.1(2) (obtaining sexual services for consideration from person under 18 years), (xxiii.2)

section 286.2 (material benefit from sexual services),

(xxiii.3)

section 286.3 (procuring), (xxiii.4)

section 320.13 (dangerous operation), (xxiii.5) subsections 320.14(1), (2) and (3) (operation while impaired), (xxiii.6)

section 320.15 (failure or refusal to comply with demand), (xxiii.7)

section 320.16 (failure to stop after accident), (xxiii.8)

section 320.17 (flight from peace officer), (xxiv)

section 344 (robbery), and (xxv)

section 348 (breaking and entering with intent, committing offence or breaking out), (

c) an offence under any of the following provisions of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as they read from time to time before January 1, 1988: (i) subsection 146(2) (sexual intercourse with female between ages of 14 and 16), (ii)

section 148 (sexual intercourse with feeble-minded), (iii)

section 166 (parent or guardian procuring defilement), and (iv)

section 167 (householder permitting defilement), (c.1) an offence under any of the following provisions of this Act, as they read from time to time before the day on which this paragraph comes into force: (i) subsection 212(1) (procuring), (ii) subsection 212(2) (living on the avails of prostitution of person under 18 years), (iii) subsection 212(2.1) (aggravated offence in relation to living on the avails of prostitution of person under 18 years), and (iv) subsection 212(4) (prostitution of person under 18 years); or (

d) an attempt or conspiracy to commit an offence referred to in paragraph (b), (

c) or (c.1);

("infraction désignée") "long-term supervision" means long-term supervision ordered under subsection 753(4), 753.01(5) or (6) or 753.1(3) or subparagraph 759(3)(a)(i); ("surveillance de longue durée") "primary designated offence" means (

a) an offence under any of the following provisions: (

i) section 151 (sexual interference), (ii)

section 152 (invitation to sexual touching), (iii)

section 153 (sexual exploitation), (iv)

section 155 (incest), (

v) section 239 (attempt to commit murder), (vi)

section 244 (discharging firearm with intent), (vii)

section 267 (assault with weapon or causing bodily harm), (viii)

section 268 (aggravated assault), (ix)

section 271 (sexual assault), (

x) section 272 (sexual assault with weapon, threats to third party or causing bodily harm), (xi)

section 273 (aggravated sexual assault), and (xii) subsection 279(1) (kidnapping), (

b) an offence under any of the following provisions of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as they read from time to time before January 4, 1983: (

i) section 144 (rape), (ii)

section 145 (attempt to commit rape),

(iii)

section 149 (indecent assault on female), (iv)

section 156 (indecent assault on male), (v) subsection 245(2) (assault causing bodily harm), and (vi) subsection 246(1) (assault with intent) if the intent is to commit an offence referred to in any of subparagraphs (

i) to (

v) of this paragraph, (

c) an offence under any of the following provisions of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as enacted by

section 19 of

An Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof ,

chapter 125 of the Statutes of Canada, 1980-81-82-83: (

i) section 246.1 (sexual assault), (ii)

section 246.2 (sexual assault with weapon, threats to third party or causing bodily harm), and (iii)

section 246.3 (aggravated sexual assault), (

d) an offence under any of the following provisions of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as they read from time to time before January 1, 1988: (i) subsection 146(1) (sexual intercourse with female under age of 14), and (ii) paragraph 153(1)(a) (sexual intercourse with step-daughter), or (

e) an attempt or conspiracy to commit an offence referred to in any of paragraphs (

a) to (d); ("infraction primaire") "serious personal injury offence" means (

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

section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a

third party or causing bodily harm) or 273 (aggravated sexual assault). Amendment History 2008, c. 6, ss. 40, 61 ; 2010, c. 3, s. 8 ; 2012, c. 1, s. 35 ; 2014, c. 25, s. 29 ; 2018, c. 21, s. 25 Currency Federal English Statutes reflect amendments current to October 28, 2020 Federal English Regulations are current to Gazette Vol. 154:20 (September 30, 2020) [ 67 ]

Section 752 has not significantly changed between December 2, 2008 and the present, as it pertains to the case at Bar. 753 . 753(1) Application for finding that an offender is a dangerous offender 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. 753(1.1) Presumption If the court is satisfied that the offence for which the offender is convicted is a primary designated offence for which it would be appropriate to impose a sentence of imprisonment of two years or more and that the offender was convicted previously at least twice of a primary designated offence and was sentenced to at least two years of imprisonment for each of those convictions, the conditions in paragraph (1)(

a) or (b), as the case may be, are presumed to have been met unless the contrary is proved on a balance of probabilities. 753(2) Time for making application An application under subsection (1) must be made before sentence is imposed on the offender unless

(

a) before the imposition of sentence, the prosecutor gives notice to the offender of a possible intention to make an application under

section 752.1 and an application under subsection (1) not later than six months after that imposition; and (

b) at the time of the application under subsection (1) that is not later than six months after the imposition of sentence, it is shown that relevant evidence that was not reasonably available to the prosecutor at the time of the imposition of sentence became available in the interim. 753(3) Application for remand for assessment after imposition of sentence Notwithstanding subsection 752.1(1), an application under that subsection may be made after the imposition of sentence or after an offender begins to serve the sentence in a case to which paragraphs (2)(

a) and (

b) apply. 753(4) Sentence for dangerous offender If the court finds an offender to be a dangerous offender, it shall (

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

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

c) impose a sentence for the offence for which the offender has been convicted. 753(4.1) Sentence of indeterminate detention The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(

b) or (

c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. 753(4.2) If application made after sentencing If the application is made after the offender begins to serve the sentence in a case to which paragraphs (2)(

a) and (

b) apply, a sentence imposed under paragraph (4)(a), or a sentence imposed and an order made under paragraph 4(b), replaces the sentence that was imposed for the offence for which the offender was convicted. 753(5) If offender not found to be dangerous offender If the court does not find an offender to be a dangerous offender, (

a) the court may treat the application as an application to find the offender to be a long-term offender,

section 753.1 applies to the application and the court may either find that the offender is a long-term offender or hold another hearing for that purpose; or (

b) the court may impose sentence for the offence for which the offender has been convicted. 753(6) [Repealed 2008, c. 6, s. 42(5) .]

Amendment History 1997, c. 17, s. 4; 2008, c. 6, s. 42 Currency Federal English Statutes reflect amendments current to October 28, 2020 Federal English Regulations are current to Gazette Vol. 154:20 (September 30, 2020) [ 68 ] Section 753(1) has changed, inter alia , as follows: From - on December 2, 2008, when the wording commenced with: “The court may , on application made under this Part following the filing of an assessment report under subsection 752.1(2) , find the offender to be a dangerous offender if it is satisfied… [the remainder of the subsection is the same as it is presently]”.

To - presently, which reads: “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… [the remainder of the subsection is the same as it was in 2008].” [ 69 ] I find that this is not a substantial change, based on the reasons in R v Boutilier , 2017 SCC 64 . [ 70 ] In R v Boutilier , 2017 SCC 64 , the offender applied for a declaration of constitutional invalidity regarding sections 753(1) and (4.1) claiming they were overbroad and in contravention of sections 7 and 12 of the Charter of Rights .

The Supreme Court held that the legislation was not overbroad and did not violate either section. The court noted that the sentencing judge committed an error of law because he failed to consider the accused’s treatment prospects before designating him as a dangerous offender.

Nevertheless, the error did not change the proper conclusion of dangerousness regarding the offender. [ 71 ] In relation to the changes to s. 753(1) - namely “shall find”; and (4.1) - namely “shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(

b) or (

c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence”; the court concluded as follows: 46 In sum, a finding of dangerousness has always required that the Crown demonstrate, beyond a reasonable doubt, a high likelihood of harmful recidivism and the intractability of the violent pattern of conduct . A prospective assessment of dangerousness ensures that only offenders who pose a tremendous future risk are designated as dangerous and face the possibility of being sentenced to an indeterminate detention.

This necessarily involves the consideration of future treatment prospects. Had the prospective aspects of the dangerousness criteria been removed by the 2008 amendments, the constitutionality of the provision might have required a deeper analysis. But that is not the case. The sentencing judge erred in concluding otherwise. Accordingly, this Court need not revisit its decision in Lyons as to the constitutionality of s. 753(1) . 47 A final point must be addressed. The 2008 amendments also introduced s. 753.01.

The sentencing judge found that this provision made the s. 753(1) designation permanent and imposed new consequences on the offender. The dangerous offender regime, however, has had permanent effect since Lyons : p. 342. The change has to do with the potential consequences of that designation as a result of s. 753.01. That being said, the constitutionality of those consequences is not at stake in this case. Mr. Boutilier was not sentenced to an indeterminate detention on the basis of s. 753.01, but rather after a regular application for a dangerous offender designation pursuant to s. 753.

It would be imprudent for this Court to rule on the constitutionality of s. 753.01 without a concrete example of its real effects. It is therefore unnecessary to consider the constitutional validity of the interaction between s. 753(1) and s. 753.01, a provision applying to later convictions of dangerous offenders. B. Does Section 753(4.1) Lead to a Grossly Disproportionate Sentence, Contrary to

Section 12 of the Charter , by Presumptively Imposing Indeterminate Detention and Preventing the Sentencing Judge From Imposing a Fit Sentence Consistent With the Principles and Objectives of Sentencing? 48 The current s. 753(4.1) was introduced in 2008. This Court has not yet considered its constitutionality. It reads as follows:

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

b) or (c)will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. 49 Mr. Boutilier contends that s. 753(4.1) infringes s. 12 of the Charter. 50 McLachlin C.J. recently summarized the framework applicable to a claim of cruel and unusual punishment under s. 12 of theCharter: A sentence will infringe s. 12 if it is "grossly disproportionate" to the punishment that is appropriate, having regard to the nature of theoffence and the circumstances of the offender: [R. v.] Nur, [2015 SCC 15, [2015] 1 S.C.R. 773], at para. 39; R. v.

Smith, (SCC), [1987] 1 S.C.R. 1045, at p. 1073. A law will violate s. 12 if it imposes a grossly disproportionate sentence on the individualbefore the court, or if the law's reasonably foreseeable applications will impose grossly disproportionate sentences on others: Nur, atpara. 77. (R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130 (S.C.C.), at para. 22) 51 Mr.

Boutilier argues that the reasonably foreseeable applications of s. 753(4.1) lead to grossly disproportionate sentences becausethe provision presumptively imposes indeterminate detention on designated offenders each time there are public safety concerns, evenwhen such a sentence would be unfit in a specific case. This argument rests on two premises. First, Mr. Boutilier argues that s. 753(4.1)is properly read as impeding the discretion of a sentencing judge to impose a fit sentence in light of all relevant factors and circumstancesand the principles and objectives of sentencing.

Second, he says that s. 753(4.1) imposes a presumption of indeterminate detention fordesignated offenders. 52 Having carefully read my colleague's reasons, I cannot, for the reasons outlined below, agree that s. 753(4.1) imposesindeterminate detention in cases where it is grossly disproportionate to the sentence mandated by sentencing principles.

The sentencingprinciples and objectives set out in the Criminal Code, including the fundamental principle of proportionality in s. 718.1, do not haveconstitutional status and may be limited by Parliament where necessary to achieve a valid penal purpose, so long as a sentencing judgeis not required to impose a sentence that is "grossly disproportionate" to the sentence normally mandated by ss. 718 to 718.2 of theCriminal Code: R. v. Safarzadeh-Markhali, 2016 SCC 14, [2016] 1 S.C.R. 180 (S.C.C.), at para. 71; R. v. Nur, 2015 SCC 15, [2015] 1S.C.R. 773 (S.C.C.), at paras. 40-42. In R. v.

Smith, (SCC), [1987] 1 S.C.R. 1045 (S.C.C.), this Court referred to threefactors that are useful in determining whether punishment is "grossly disproportionate" to what would have been appropriate: "whetherthe punishment is necessary to achieve a valid penal purpose, whether it is founded on recognized sentencing principles, and whetherthere exist valid alternatives to the punishment imposed" (p. 1074).

Considering the provision's heightened preventive purpose,recognized by s. 718(c), as well as the sentencing judge's duty to carefully inquire into the appropriateness of alternatives toindeterminate detention in light of the full range of sentencing principles, I cannot conclude that s. 753(4.1) imposes punishment that is"grossly disproportionate" to the extent that Canadians would find it abhorrent or intolerable.

(1) The Sentencing Judge's Discretion to Impose a Fit Sentence Under Section 753(4.1) 53 This Court has consistently affirmed that dangerous offender proceedings are sentencing proceedings: R. v. Steele, 2014 SCC 61,[2014] 3 S.C.R. 138 (S.C.C.), at para. 40; Jones , at pp. 279-80 and 294-95; Lyons, at p. 350. Accordingly, a sentencing judge in adangerous offender proceeding must apply the sentencing principles and mandatory guidelines outlined in ss. 718 to 718.2: R. v.Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357 (S.C.C.) , at para. 23; Neuberger, at p. 3-4.

These sections of the Criminal Code set out thepurpose and objectives of sentencing (s. 718), the fundamental principle of proportionality (s. 718.1) — "the sine qua non of a justsanction" (R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433 (S.C.C.), at para. 37) — and the other sentencing principles that a court"shall" consider before imposing any sentence on an offender (s. 718.2). An error in the application of these principles is reviewable byan appellate court: R. c. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 (S.C.C.). 54 Mr.

Boutilier's position that, under the dangerous offender scheme, a sentencing judge lacks discretion to impose an appropriatesentence in light of the principles and objectives of sentencing has no support in the jurisprudence. Appellate courts have continued toapply these principles under s. 753 since the 2008 amendments: R. v. Warawa, 2011 ABCA 294, 278 C.C.C. (3d) 409 (Alta. C.A.), atpara. 40; R. v. Osborne, 2014 MBCA 73, 314 C.C.C. (3d) 57 (Man. C.A.), at paras. 90-91; R. v. Bragg, 2015 BCCA 498, 332 C.C.C.(3d) 145 (B.C. C.A.), at para. 26; R. v. Smarch, 2015 YKCA 13, 374 B.C.A.C. 291 (Y.T.

C.A.), at paras. 46-47. These sentencingprinciples apply to every sentencing decision, whether made under the regular sentencing regime, the dangerous offender regime or thelong-term offender regime. One example is provided by Ipeelee, in which Manasie Ipeelee and Frank Ralph Ladue, were sentenced under

the long-term offender regime. Nevertheless, this Court reviewed the fitness of their sentence according to sentencing principles, andmore specifically the principle in s. 718.2(

e) requiring judges to pay attention to the circumstances of Aboriginal offenders in sentencingproceedings: see R. v. Gladue, (SCC), [1999] 1 S.C.R. 688 (S.C.C.). 55 Mr. Boutilier's contention is also not supported by the principles underlying indeterminate detention. This exceptional sentence isnot an exception to the principles of sentencing, but rather a sentence mandated by their proper application.

As La Forest J. explained inLyons , preventive detention "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": p. 329.To conclude that the objectives of rehabilitation and retribution are trumped by that of prevention in a given case, the sentencing judgemust assess the relative importance of the sentencing objectives in that particular case. 56 Mr.

Boutilier contends that, by referring solely to the objective of public protection, the wording of s. 753(4.1) excludes othersentencing objectives and principles from the sentencing judge's discretion. In my view, a fair reading of s. 753(4.1) does not result in theexclusion of these principles. Parliament is entitled to decide that protection of the public is an enhanced sentencing objective forindividuals who have been designated as dangerous. This does not mean that this objective operates to the exclusion of all others.

It ispermissible for Parliament to guide the courts to emphasize certain sentencing principles in certain circumstances without curtailingtheir ability to look at the whole picture. Emphasis on the public safety component is consistent with the fact that public protection is thegeneral purpose of

Part XXIV of the Code: Steele, at para. 27. Further, because the enhanced objective of public safety parallels thejustification for imposing an indeterminate detention, such emphasis is also consistent with the principles of sentencing generally. 57 It follows that, if the goal of public protection could be achieved in a given case without imposing indeterminate detention, adangerous offender provision requiring a sentencing judge to declare an offender dangerous and then sentence him or her to anindeterminate period of detention would "overshoot the public protection purpose of the dangerous offender regime": Johnson, at para.20. This accords with the principle in s. 718.2(

d) that "an offender should not be deprived of liberty, if less restrictive sanctions may beappropriate in the circumstances". Even though the current sentencing mechanism for dangerous offenders differs from the one in placewhen Johnson was decided, the Court's reasoning in Johnson is still applicable. Let me explain. 58 Since the 2008 amendments, indeterminate detention is no longer automatic for a dangerous offender. Rather, this sentence is onlyone option among others available under s. 753(4). In lieu of an indeterminate detention, a judge may impose a sentence that is more

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