r v. Nakiba ADAMS, 2023 QCCQ 9228

R. c. Adams 2023 QCCQ 9228 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Criminal and Penal Division No: 500-01-196324-195 DATE: November 14, 2023 ______________________________________________________________________ BY THE HONOURABLE FLAVIA K. LONGO, J.C.Q. HIS MAJESTY THE KING Prosecutor v.

Nakiba ADAMS Accused ______________________________________________________________________ JUDGMENT ON AN APPLICATION TO HAVE THE ACCUSED DESIGNATED A DANGEROUS OFFENDER AND ON SENTENCE ______________________________________________________________________ OVERVIEW [ 1 ] The accused was found guilty of having committed an aggravated assault against his grandfather, Marston Rice and an assault causing bodily harm against his grandmother, Yvonne Rice. [ 2 ] The facts were related in detail in the judgment of the Court dated March 11, 2021. [1] At trial, the accused raised that he acted in self-defence.

The Court rejected his defence at the stage of the “air of reality” test because the acts committed by the accused on his grandparents were not reasonable in the circumstances. It is important to note that at trial, issues of credibility were not evaluated in conformity with the principles set out in the caselaw regarding the “air of reality” test. [2] [ 3 ] The facts can be summarized as follows. On October 9, 2019, the accused went to the home of his grandparents. When he arrived, his grandmother told him that he was not welcome there.

When the accused heard this, he stated out loud that when his grandmother says something, his grandfather must enforce it. His grandfather heard what he said and became upset. An argument ensued and his grandmother restrained his arms while his grandfather lunged at him and tried to punch his face. The accused fell onto the staircase and as he tried to get up, his arms were restrained by his grandmother and his grandfather tried to get at his face but failed. [ 4 ] As he got up from the staircase, he hit his grandmother’s right eye with his elbow, and she fell to the ground.

Then, he punched his grandfather in the face and he also fell to the ground. As a result, both grandparents suffered serious injuries. [ 5 ] The sentencing hearing was postponed several times. After convicting the accused, the Court ordered [3] an assessment pursuant to

section 752.1 of the Criminal Code further to a request from the Prosecution asking that he be declared a dangerous offender. The assessment was completed by forensic psychiatrist, Dr. France Proulx, on October 13, 2021. [ 6 ] During this time, the Prosecution disclosed the accused’s carceral file to the defence who noted after evaluating its contents that several documents were missing and requested that the case be remanded. This took several months. Once the disclosure of the carceral file was complete, the defence requested a postponement [4] for the purpose of mandating its own expert.

This resulted in another postponement. [ 7 ] The Prosecution asks the Court to declare the accused a dangerous offender and to impose an indeterminate sentence of imprisonment. Alternatively, the Prosecution argues that a composite sentence comprised of a 10-year jail sentence accompanied by a long-term supervision order for a period of 10 years should be imposed. The defence requests a two-year jail sentence accompanied by a three-year probation or a 5-year long-term offender designation if the Court imposes a sentence superior to two years of imprisonment.

THE VICTIMS [ 8 ] The accused’s grandmother, Yvonne Rice, testified at the sentencing hearing. She is 85 years old and was 81 at the time of the events in question. Since the incident, her vision has been blurred and her eyelid has become lazy. When she wakes up in the morning, her eyelid will not open and there are times when she must use her hand to prop it open. She has dizziness and her stability has changed.

She underwent therapy to re-establish her balance but stopped during the Covid-19 pandemic. She is presently on a waiting list for physiotherapy. She used to take the bus before the incident but is unable to do so now because of her stability issues. [ 9 ] Mrs.

Rice’s facial injuries were summarized as follows in the trial judgment: • Subdural hematoma in the left holohemispheric area of her head with interval resolution of the left parietal small subarachnoid hemorrhage. • Right periorbital trauma resulting in the presence of a blowout fracture of the orbital floor with presence of a large osseous defect with inferior herniation of orbital contents into the upper maxillary sinus and signs of entrapment of the inferior rectus muscle. [ 10 ] There are moments when she is unable to sleep at night and she thinks about the incident.

She is afraid of what might happen if the accused is released. She fears that he will go to her home, and she does not want him there. Although he is her grandson, she fears him. The bump that appeared on her head after the incident is still present and it will remain. It is a constant reminder of what happened on that day. [ 11 ] The accused’s grandfather, Marston Rice, was 83 years old when the event took place. He did not testify at the sentencing hearing. However, the trial judgment summarizes the observations of the police officers who went to the scene further to the event.

When they arrived at the residence, Mr. Rice was bleeding, and his face was covered with blood. He had lacerations on his right eye and on top of his head. Mr. Rice had difficulty answering questions from the police officers, he seemed confused and kept his weight against the wall to prevent himself from falling. Mr. Rice repeatedly told the paramedics that he wished to sit down even though he was already seated. [ 12 ] At the hospital, Mr. Rice was in a lot of pain. He fell asleep easily and had difficulty communicating.

There was a four- centimeter laceration behind his head and multiple lacerations on his forehead of two to three centimeters each. His face was also fractured in certain areas. The medical reports show that he suffered the following injuries: • Hemorrhaging in the bilateral frontal lobes and right cerebellum subarachnoid on his head. • Frontal bone fractures involving the anterior and posterior walls of the maxillary sinuses on his face. • Luxation of tooth 43. [ 13 ] These injuries required surgery in the form of a bilateral craniotomy.

THE ACCUSED [ 14 ] The accused testified at trial but did not testify at the sentencing hearing. During his testimony at trial, he described himself as a 36-year-old professional athlete who had experience in sparring. The Court has no other information regarding the accused aside from what he told the experts and the probation officers who evaluated him. These elements will be discussed later in this judgment.

His Previous Convictions [ 15 ] The accused’s criminality began when he was a teenager with a Youth Court conviction shortly after his 18 th birthday for assault and aggravated assault where he served an intermittent sentence of imprisonment during four weekends accompanied by a 12- month probation. [ 16 ] As an adult, he was convicted over 30 times since 2004 for the following infractions: Date of the sentence Nature of the infraction Sentence 2004-10-18 Mischief not exceeding 5000 $ Suspended sentence and probation for 6 months Possession of substances listed in Annex I 200 $ fine 2005-04-29 Obstruction of justice 5 days to be served concurrently on each count and 1-year probation Failure to comply with a probation order Assault Failure to comply with an undertaking Suspended sentence and 1-year probation 2005-12-01 Failure to comply with a condition of a promise Failure to comply with an undertaking 100 $ fine on each count 2007-03-20 Failure to comply with an undertaking (4 counts) 1 day to be served concurrently on each count

2007-06-20 Failure to comply with an undertaking (12 counts) Failure to comply with a probation order (6 counts) 20 days to be served concurrently and 3-year probation 2008-04-22 Assault Uttering threats (2 counts) Assault 150 days to be served concurrently on each count and 3-year probation Failure to comply with an undertaking (2 counts) 60 days to be served concurrently on each count Failure to comply with a probation order 14 days Failure or refusal to provide a sample 600 $ fine and 1-year driving prohibition 2008-09-02 Obstruction of justice Failure to comply with a probation order (2 counts) Failure to comply with an undertaking (2 counts) 14 days to be served concurrently on each count and 2-year probation order 2008-09-02 Obstruction of justice Failure to comply with a probation order (2 counts) Failure to comply with an undertaking (2 counts) 14 days to be served concurrently on each count and 2-year probation order 2008-12-16 Failure to comply with a probation order Failure to comply with a condition of a promise 5 days on each count 2011-01-10 Uttering threats Armed aggression Mischief not exceeding 5000 $ Suspended sentence and 3-year probation 2012-10-23 Disturbing the peace 500 $ and 365-day probation order 2013-10-08 Assault Mischief not exceeding 5000 $ (7 counts) 150 days to be served concurrently on each count and 730-day probation order Failure to comply with a condition of a promise (2 counts) Failure to comply with a probation order (3 counts) 150 days to be served concurrently on each count 2014-04-11 Uttering threats 4 months and 2-year probation order (credit for the equivalent of 1 month of pre-sentence detention) 2-year discretionary firearms ban (s. 110) 2015-12-16 Aggravated assault 23 months and 21 days and 2-year probation order and mandatory gun ban 2019-03-05 Breaking and entering and committing a crime (art 348(1)b)d)) 7 months and 2-year probation order and mandatory gun ban Date of the sentence Nature of the infraction Sentence

2019-04-02 Assault Mischief not exceeding 5000 $ 5 days and 2-year probation order (credit for the equivalent of 360 days pre-sentence detention) and mandatory gun ban Date of the sentence Nature of the infraction Sentence [ 17 ] As shown above, in 2015, he was convicted of aggravated assault and sentenced to 23 months and 21 days in prison accompanied by a 2-year probation and a weapons prohibition. In 2019, he was sentenced to 5 days in prison and a two-year probation after the court considered the equivalent of 360 days in pretrial detention for an assault causing bodily harm.

His criminal convictions that are relevant to the sentencing hearing but that were not included in his criminal record [ 18 ] On May 3, 2021, he was convicted of assault causing bodily harm after having stabbed a correctional services officer with a pen while he was in detention [5] . The victim sustained injuries to his face and left eye. The accused was sentenced to a prison term of 720 days (24 months) accompanied by a three-year probation.

On May 11, 2021, he was convicted of simple assault and sentenced to 8 months in prison. [6] [ 19 ] The sentences for these convictions were imposed after the accused committed the offences in the present matter. The Court will not treat these convictions as being part of his prior criminal record [7] , nor will they be attributed the same degree of culpability or criminalization as if he had been previously convicted and punished.

These convictions and sentences will be considered in order to assess the character of the accused and the degree to which he is on the road to rehabilitation. [8] The probation officer and the accused’s behaviour in a correctional services facility [ 20 ] The accused was evaluated by Audrey Bordeleau, the probation officer assigned to his file further to the imposition of a sentence unrelated to the present matter, that he received in 2021. As part of her functions, she assessed his needs and his risk factors for recidivism.

She met with him on three occasions in June 2021. [ 21 ] She testified that the accused has difficulty controlling his anger and impulses and he becomes reactive if he is disrespected. She concluded that he came from a violent home where there was drug abuse and no exposure to positive role models. He has difficulty communicating and did not learn how to cope with his emotions especially when it comes to anger. This led to a repetition of violent behaviour. [ 22 ] In terms of his social network, he had some contact with his mother, but the frequency of their communications is unclear.

He was known in the world of extreme sports and in the arts scene but did not give the probation officer the requisite permission to speak to anyone. Therefore, her assessment is solely based on what the accused told her. [ 23 ] The probation officer knew that he did not have access to programs in detention since he was in a protective sector and his interactions with prison staff and other detainees were limited. She told the accused that he should focus on his introspection and his anger management. He has difficulty taking responsibility for his actions and tends to place the blame on the victims.

He believes that he is not understood by others which causes him to feel attacked and provoked. She states that the accused should look inward more and take responsibility for his actions. [ 24 ] In terms of his future plans, he told her that he had a company and was involved in the clothing business. Although he did not consider having anger management issues, she recommended therapy since he never engaged in this type of treatment.

He was receptive to the idea but unwilling to take concrete steps at the time. [ 25 ] In her report [9] dated June 30, 2021, she stated that violence is the accused’s main problem, and it characterizes his criminality. He was removed from a violent home and was successful in sports but did not have the necessary tools to deal with his emotions. Therefore, he developed a reactive personality, and his anger is explosive when he feels attacked or provoked.

This translates into a need to counterattack and explains why his criminal record implicates family, girlfriends, and peace officers as victims of his offences. [ 26 ] The probation officer took cognizance of his disciplinary record while incarcerated. He had 66 disciplinary hearings and 38 were for violent behaviour (physical or verbal). The remainder of the hearings were due to a disrespect of the detention centre’s rules which speaks to his feelings toward people in a position of authority. The last disciplinary action taken against the accused was in August 2021.

The accused did not mention anything to her regarding his mental health. [ 27 ] Ms. Esther Belony also testified at the sentencing hearing. She was the accused’s correctional services agent and drafted a report [10] in his file after he began serving a sentence unrelated to this file on March 5, 2019. It was her duty to meet with him since he was serving a sentence superior to six months in prison, and she had to discuss his conditional release and the preparation of an exit plan.

He was uncooperative and disinterested. [ 28 ] She met the accused from behind a door since he was in a restrictive sector and permanently alone due to the accumulation of disciplinary actions because of his aggressive behaviour toward the staff and the other detainees. She explained that all his daily activities are done by himself and he is segregated from other individuals. This includes consuming meals, going outside, walking in his sector, making telephone calls, and doing laundry. [ 29 ] At the time of her testimony, Ms.

Belony mentioned that the accused was no longer in a restrictive sector and had been moved into a behavioural protective sector. In this new sector, the accused was separated from the regular population for his own protection and for the protection of the other detainees. His daily life is similar to what it was when he was in the restrictive sector, and he resides in an

individual cell. [ 30 ] At the time of her testimony, she noted that the accused had 74 disciplinary breaches in his file [11] and that from 2019 to 2022 [12] he was detained in sectors and/or cells for individuals with behavioural issues who needed to be alone and segregated from the rest of the prison population. The Court notes that the accused had also requested to be put into protective custody on some occasions in the past. [13] [ 31 ] The disciplinary breaches were tendered in evidence through several documents [14] , some more detailed than others.

For the most part, these breaches pertain to the following types of incidents: • The accused committed acts of violence against other inmates or correctional services agents. [15] • The accused refused to follow orders from the correctional services agents. [16] • The accused was verbally violent toward the correctional services agents. At times, this behaviour was accompanied by a physical component such as kicking. [17] • The accused destroyed property. [18] • The accused possessed illegal alcohol in his prison cell. [19] The Assessments Dr. France Proulx [ 32 ] The accused was evaluated by Dr.

France Proulx, forensic psychiatrist, on September 27, 2021. A subsequent meeting was to take place on October 13, 2021 but was canceled due to an incident involving the accused at the detention centre where he was being held at the time. [ 33 ] She produced a report [20] explaining her findings and she testified during the sentencing hearing. She has a vast experience in the drafting of dangerous offender assessments and has completed approximately 85 such reports since 1999. [ 34 ] According to her report, the accused grew up in NDG and has three younger brothers.

The family setting was violent, and he was physically abused by his grandparents when he lived with them as a child because his mother had murdered his father. He dropped out of school in grade 9 to pursue stunt contracts. He also did some modelling and was a three-time champion at the X-games. He lived on the income generated from his company and his sponsors but has been out of that environment for an extended period due to his court-related issues. Therefore, he resorted to social assistance to sustain his financial needs. [ 35 ] During her meeting with the accused, he did not show much emotion.

His criminal record was discussed and despite his previous convictions for violent offences, he perceived himself as being a non-violent individual. He places blame on others and has limited insight. As a result, he is unable to acknowledge his behaviour and his judgment is immature. The accused told her that he partook in anger management treatment several years ago, but she had no additional information and is unaware of whether it was successful. [ 36 ] Dr.

Proulx’s diagnosis of the accused confirms that he has an antisocial personality disorder coupled with a history of cannabis use disorder. [21] The Hare psychopathy checklist (PCL-R, 2 nd edition) was used to evaluate him. This tool helps determine different aspects of a person’s personality and behaviour where the maximum score is 40. The accused is in a mixed profile since he scored between 20 and 30.

The main issues targeted during this evaluation are the accused’s social deviancy and the anti-social elements of his personality. [22] [ 37 ] According to the VRAG scale, the accused is in a high risk of repeat offence category since he obtained a score placing him in the eighth of nine categories for the risk of violence with a risk of recidivism greater than 80% over five years and greater than 90% over 15 years. This is a group risk and not and individual risk. Dr.

Proulx’s conclusion, based on the results of these scales and her clinical point of view, is that the accused’s risk of violent recidivism is high. [23] [ 38 ] Since the accused offers little acknowledgement of his issues with violence and places blame on others, this impacts the prospect of successfully enrolling him in programs whose main objective is to reduce the risk of commission of violent offences. He does not possess the necessary prerequisites required for him to benefit from such an intervention.

Furthermore, the expected benefits to be achieved by the accused in such circumstances are quite limited. [24] [ 39 ] As for the use of pharmacological or psychotherapeutic treatments, there is no indication that following these paths would diminish the risk of violence. The accused did not engage in any programs while incarcerated [25] and he did not recognize having a problem which is the first step to success when an individual undertakes a therapy.

Furthermore, she evaluated his disciplinary infractions in custody which helped her assess the capacity of the individual to respect authority and rules of behaviour. Dr. Proulx concludes that there is no real possibility of controlling the accused’s risk in the community and that he should be deemed a dangerous offender. [26] [ 40 ] Dr. Proulx had planned to discuss the accused’s interest in partaking in a therapy on October 13, 2021 but was unable to do so because the meeting did not take place and it could not be rescheduled since the accused’s court date was one week later.

The information that she had at her disposal demonstrated that he had not engaged in previous therapies and that it would be unlikely that he would undertake to follow such programs since he denied having issues with violence and drug dependency. Dr. Jean-Philippe Vaillancourt

[ 41 ] Dr. Jean-Philippe Vaillancourt, a forensic psychologist [27] mandated by the defence, also prepared an assessment [28] for the benefit of the accused. The Court declared him an expert in the assessment of the risk of recidivism in violent offences. The accused was tested by Dr.

Vaillancourt according to the PCL-R scale for traits and behaviours linked to psychopathy and the result obtained placed him in the 67 th percentile (inferior limit of the “mixed” group). [29] As for the VRAG-R scale, the accused shares characteristics with a group where 58% committed a repeat offence within the first five years and 78% within the first twelve years following their release from prison. This score places him in the 89 th percentile. [30] [ 42 ] Dr.

Vaillancourt also tested the accused by using the HCR-20v3 which is an assessment tool that considers static and dynamic risk factors and takes into consideration historical, clinical, and future risk management factors. [ 43 ] On the historical front, Dr. Vaillancourt noted that the accused committed violent crimes from early adulthood and has considerable difficulties on the interpersonal front. He also has certain employment struggles.

He consumed cannabis on a regular basis and seems to have been raised in a problematic family setting where he was exposed to violence. [31] He has difficulty respecting supervision orders in public as well as in detention and uses violence quickly when tensions mount or he feels that his security is threatened. He never benefited from an intervention that targets the reason for his delinquent behaviour. Although the accused is interested in taking a step in that direction, Dr.

Vaillancourt questions his motivation to do so and is unaware of how a program would be helpful since he does not recognize having a particular need. [32] [ 44 ] On the clinical front, the accused has limited insight, is unable to take responsibility for his actions and exhibits impulsive behaviour. [33] [ 45 ] Regarding the management of future risk upon his release from prison, Dr. Vaillancourt mentions that the accused will have time, during his incarceration, to develop a social reinsertion plan that will take into consideration the need for him to be followed and to be supported on a personal level.

It will be difficult for him to respect the follow-up and surveillance that he will be submitted to once he is released due to his priors in this regard. [34] His social entourage is limited to people that he works with and his current girlfriend. [ 46 ] Since the accused adopts an aggressive approach to conflict resolution, he could benefit from a better management of stressors.

His association with marginalized individuals combined with the deficiencies in his ability to manage emotions are important factors to consider regarding the risk management upon release from prison. [ 47 ] From a global perspective and upon evaluating all the factors, Dr.

Vaillancourt concludes that the accused presents a high risk of violent recidivism from a short-term, medium-term, and long-term perspective. [35] [ 48 ] The accused minimally recognizes his involvement in wrongdoing and tends to systematically blame the victims by using self- defence as a justification for his actions. [36] His feelings of responsibility, guilt and empathy are minimal [37] and he does not feel the need to obtain support for the management of his emotions because he does not admit having a problem in that sphere. [38] The accused was diagnosed by Dr.

Vaillancourt as having an antisocial personality disorder with certain narcissistic traits, namely lack of empathy. [39] [ 49 ] Dr. Vaillancourt’s opinion is that the accused satisfies the criteria to be deemed a dangerous offender. [40] However, he is of the view that the accused was never exposed to different programs or interventions that could help him deal with his risk factors and that this possibility, although the chances of success are slim, should be offered to him. If the accused is given the opportunity to partake in such a program and participates positively, Dr.

Vaillancourt believes that the risk would be manageable in the community and he suggests a long-term surveillance order for a period of five years. ANALYSIS The governing principles for dangerous offenders [ 50 ] The objective of the dangerous offender regime is the protection of the public from the risk of violent harm [41] and it targets a restricted category of individuals in specific and limited circumstances. [42] The statutory scheme has two stages.

The Court can designate the accused, convicted of a serious personal injury offence, a dangerous offender ( the designation stage under s. 753(1) ) and sentence the accused once he has been deemed a dangerous offender ( the penalty stage under ss. 753 (4) and (4.1) ). All of the evidence adduced at the sentencing hearing is to be considered at both stages, albeit for different purposes.

The Designation Stage [ 51 ] The designation stage is concerned with assessing the future threat posed by the accused [43] or risk to the public safety. [44] [ 52 ] Section 753 (1) of the Criminal Code lists the conditions that need to be reunited in order for an accused to be designated a dangerous offender:

(1) Sur demande faite, en vertu de la présente partie, postérieurement au dépôt du rapport d’évaluation visé au paragraphe 752.1(2), le tribunal doit déclarer qu’un délinquant est un délinquant dangereux s’il est convaincu que, selon le cas :

a) l’infraction commise constitue des sévices graves à la personne, aux termes de l’alinéa a) de la définition de cette expression à l’article 752, et que le délinquant qui l’a commise constitue un danger pour la vie, la sécurité ou le bien-être physique ou mental de qui que ce soit, en vertu de preuves établissant, selon le cas : (

i) que, par la répétition de ses actes, notamment celui qui est à l’origine de l’infraction dont il a été déclaré coupable, le délinquant démontre qu’il est incapable de contrôler ses actes et permet de croire qu’il causera vraisemblablement la mort de quelque autre personne ou causera des sévices ou des dommages psychologiques graves à d’autres personnes , (ii) que, par la répétition continuelle de ses actes d’agression, notamment celui qui est à l’origine de l’infraction dont il a été déclaré coupable, le délinquant démontre une indifférence marquée quant aux conséquences raisonnablement prévisibles que ses actes peuvent avoir sur autrui , (iii) un comportement, chez ce délinquant, associé à la perpétration de l’infraction dont il a été déclaré coupable, d’une nature si brutale que l’on ne peut s’empêcher de conclure qu’il y a peu de chance pour qu’à l’avenir ce comportement soit inhibé par les normes ordinaires de restriction du comportement;

b) l’infraction commise constitue des sévices graves à la personne, aux termes de l’alinéa b) de la définition de cette expression à l’article 752, et que la conduite antérieure du délinquant dans le domaine sexuel, y compris lors de la perpétration de l’infraction dont il a été déclaré coupable, démontre son incapacité à contrôler ses impulsions sexuelles et laisse prévoir que vraisemblablement il causera à l’avenir de ce fait des sévices ou autres maux à d’autres personnes. 753

(1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied (

a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (

a) of the definition of that expression in

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

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

b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (

b) of the definition of that expression in

section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses. My underlining [ 53 ]

Section 752 of the Criminal Code defines the meaning of a serious personal injury offence in accordance with s. 753 :

Sévices graves à la personne - Selon le cas :

a) les infractions — la haute trahison, la trahison, le meurtre au premier degré ou au deuxième degré exceptés — punissables, par mise en accusation, d’un emprisonnement d’au moins dix ans et impliquant : (

i) soit l’emploi, ou une tentative d’emploi, de la violence contre une autre personne , (ii) soit une conduite dangereuse, ou susceptible de l’être, pour la vie ou la sécurité d’une autre personne ou une conduite ayant infligé, ou susceptible d’infliger, des dommages psychologiques graves à une autre personne ;

b) les infractions ou tentatives de perpétration de l’une des infractions visées aux articles 271 (agression sexuelle), 272 (agression sexuelle armée, menaces à une tierce personne ou infliction de lésions corporelles) ou 273 (agression sexuelle grave). 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). My underlining [ 54 ] In order to designate the accused as dangerous, the Court must be satisfied beyond a reasonable doubt that he actually constitutes a future threat to safety in light of all the relevant evidence. [45] There is no discretion at the designation stage. If the requirements are met, the Court must find the accused to be dangerous. [46] [ 55 ] In the matter at hand, the Prosecution submits having demonstrated beyond a reasonable doubt that the conditions set forth in s. 753(1) a)(

i) and (ii) of the Criminal Code are reunited and that the accused must be designated a dangerous offender at the designation stage. [ 56 ] As such, the Court must assess whether the accused’s treatment prospects [47] are “so compelling” that they cast doubt on whether he poses a high likelihood of harmful recidivism. [48] The Penalty Stage [ 57 ] The penalty stage is concerned with imposing the appropriate sentence to manage the established threat.

Though evidence may demonstrate that the accused is unable to surmount his or her violent conduct, the Court must assess whether the risk arising from the accused’s behaviour can be adequately managed outside of an indeterminate sentence. [49] The lease intrusive sentence required to protect the public must be imposed. [50] [ 58 ] Once an accused is designated a dangerous offender, s. 753(4) of the Criminal Code lists the available punishments as follows: (1) an indeterminate sentence of imprisonment in a penitentiary; (2) a composite sentence consisting of a term of imprisonment of at least two years, followed by a LTSO that does not exceed ten years; or (3) a determinate sentence for the predicate serious personal injury offence(s). [51] [ 59 ] Section 753(4.1) [52] of the Criminal Code requires the imposition of an indeterminate sentence to be served in the penitentiary unless the Court is satisfied by the evidence adduced at the hearing that there is a reasonable expectation that some lesser sentencing measure will adequately protect the public against the accused’s commission of murder or a serious personal injury offence. [53] This requires evidence of treatability that is more than mere speculative hope and indicates that the accused can be treated within an ascertainable time. [54] It is up to the Court to consider and weigh all of the retrospective and prospective evidentiary elements relating to the issues of treatability, including expert evidence, in order to determine if the conditions relating to this measure have been satisfied. [55] [ 60 ] The term “reasonable expectation” suggests a “likelihood”, “a belief that something would happen”, or “a confident belief, for good and sufficient reasons” [56] and it is a more stringent standard than “reasonable possibility”. [57] A reasonable expectation is not a reasonable possibility. [58] A reasonable possibility sets the bar for a lesser measure too low to ensure adequate protection of the public. [59] [ 61 ] Paramount consideration must be given to the protection of the public [60] , and a thorough inquiry conducted into the prospect of control in the community [61] by considering the following factors: evidence that the accused avoided treatment, failed to respond to or terminated treatment, breached court orders, lacked motivation, continued to be involved in high-risk conduct, had a serious personality disorder, and was a high risk to engage in violent recidivism. [62] [ 62 ] The Court underlines that dangerous offender proceedings are part and parcel of the sentencing stage [63] and are governed by the principles and objectives set forth in ss. 718 to 718.2 of the Criminal Code including, but not limited to, proportionality and

individualization. Application to the present matter The designation stage [ 63 ] After careful consideration and the weighing of all the evidence adduced, the Court concludes that the Prosecution has demonstrated beyond a reasonable doubt that the conditions set forth in section 753(1) a)

i) and (ii) of the Criminal Code have been met. Therefore, the accused is designated a dangerous offender.

Serious personal injury offence [ 64 ] Both infractions for which he was found guilty (assault causing bodily harm and aggravated assault) constitute serious personal injury offences pursuant to s. 752 of the Criminal Code and are punishable by maximum terms of imprisonment of 10 years (assault causing bodily harm) and 14 years (aggravated assault). [ 65 ] The circumstances of the commission of these offences involve: • The use of violence against both his grandparents. • A conduct inflicting or likely to inflict severe psychological damage on his grandparents. [ 66 ] The first legislative requirement has been met.

Section 753(1) a)(

i) of the Criminal Code : “pattern of repetitive behaviour” [ 67 ] The Prosecution has demonstrated beyond a reasonable doubt that the accused adopted a “pattern of repetitive behaviour” which shows his inability to control his actions resulting in a likelihood of causing death or injury to other persons, or the infliction of severe psychological damage. [ 68 ] The accused has a lengthy criminal record. [64] His criminality began when he was a youth and the first convictions entered were for acts of violence for which he was sentenced to serve an intermittent sentence of imprisonment on weekends for aggravated assault and simple assault.

Over 30 convictions were registered on his criminal record, as an adult, with several priors for infractions concerning violence and breaching conditions. The predicate offences fall in line with his extensive history of involvement in violent crimes and after their commission, the accused was convicted of two violent offences [65] for which he was sentenced to terms of imprisonment. [ 69 ] His repeated institutional misconducts where several incidents involving the use of violence transpired, are another demonstration of the pattern of repetitive behaviour. As mentioned in Ms.

Bordeleau’s report, the accused has a low threshold when he is provoked and responds systematically by using violence. [66] Emotions management is deficient which causes him to defy authority and use violence in a reactive and explosive fashion. [67] His level of introspection is embryonic which leads to him not taking responsibility for his actions and not being alive to the behavioural changes that are necessary in order to cease his criminality. [68] [ 70 ] Although self-defence was alleged at trial for the predicate offences, the accused’s inability to manage his emotions and to react explosively is self-evident since he responded to his grandparents by using extreme violence and was indifferent to the reasonably foreseeable consequences of his actions which caused them lasting injuries. [ 71 ] The accused does not benefit from any family or community support except for the occasional contact with his mother and his present girlfriend.

His criminal record shows that he is unable to respect court orders. He acts violently in all settings (uncontrolled and controlled) and places blame on others. He is unable to live within a regular prison population setting and needs to be isolated from other inmates. Furthermore, there is no evidence that the accused could be successfully treated in the future and within a definite timeframe. [ 72 ] Considering all the evidence, the Court concludes to the existence of a pattern of repetitive and aggressive acts thus confirming the accused’s incapacity to control his actions.

This shows a likelihood that the accused will cause death or injury or inflict severe psychological damage on other persons. [ 73 ] The pattern of repetitive behaviour has been proven beyond a reasonable doubt and the accused must be designated a dangerous offender under this provision.

Section 753(1) a)(ii) of the Criminal Code : “pattern of persistent aggressive behaviour” [ 74 ] The Court concludes that the Prosecution has demonstrated beyond a reasonable doubt that the accused adopted a “pattern of persistent aggressive behaviour” showing a substantial degree of indifference on his part respecting the reasonably foreseeable consequences to other persons of his behaviour. Although this criterion is different than the preceding one, the elements mentioned previously clearly lead to this conclusion. In this context, the dangerous offender designation is also justified under this provision.

The penalty stage [ 75 ] The evaluation of the totality of the evidence leads the Court to conclude that a traditional prison sentence or a sentence of imprisonment followed by a long-term supervision order will not adequately protect the public from the commission, by the accused, of a serious personal injury offence. [ 76 ] Both experts confirm that the accused represents a high risk of violent recidivism and that he satisfies the criteria to be designated a dangerous offender.

[ 77 ] Dr. Proulx was subjected to a long cross-examination and although she did not meet the accused the second time as planned, this did not invalidate her findings. She stated that the meeting that she did have with the accused was sufficient to allow her to complete the assessment. Consequently, she adjusted the result of the PCL-R test since two elements out of twenty were missing. This adjustment had no impact on her assessment. Dr. Proulx’s testimony is credible and her explanations regarding the adjustments made to her testing results are accepted.

She concluded that the accused could not be controlled in the community by any means. The Court gives significant weight to her assessment and its conclusions. [ 78 ] Dr. Vaillancourt suggests that the accused follow therapy since he never had the opportunity to do so in the past and that he should benefit from an LTSO instead of an indeterminate sentence. Although Dr. Vaillancourt’s assessment of the accused is quite similar to the assessment of Dr. Proulx, his conclusion regarding the sentence to be imposed is not retained by the Court. Dr.

Vaillancourt applied the reasonable possibility standard in reaching his conclusion that the accused could be adequately controlled in the community if he follows therapeutic programming in the penitentiary. Therefore, his assessment does not reach the legal standard required by s. 753(4.1) of the Criminal Code since there is no reasonable expectation that the imposition of a lesser measure would adequately protect the public against the commission by the accused of murder or a serious personal injury offence. [ 79 ] The Court comes to this conclusion since Dr.

Vaillancourt’s opinion was contingent upon the accused availing himself of treatment. No evidence was offered to demonstrate that the accused could be successfully treated within a definite period. The fact that the accused mentioned an interest in going to therapy to the defence expert is of no comfort. Dr. Vaillancourt had reservations about the accused’s motivation to follow a program and he did not recognize having an underlying issue for which help was required.

Accordingly, the Court cannot accept the defence’s contention that the accused’s detention impeded him from being treated. [ 80 ] That the accused would even participate in a treatment program is purely speculative.

If manageability of his risk depends upon the accused’s willingness to engage in treatment, to be supervised, to comply with monitoring and to change his anti-social views, the evaluation of the totality of the evidence proffered at the hearing refutes any of these prospects. [ 81 ] Regarding the accused’s moral culpability, the Court considers the self-defence context alleged by him at trial and his unstable upbringing while he lived with his grandparents in his younger years.

However, these elements are insufficient to counter the evidence pointing to the accused’s low prospects for treatability and manageability. [ 82 ] As stated previously, at the time of the commission of the predicate offences, the accused demonstrated his inability to restrain himself. His inability escalated with convictions for two additional violent offences following the infractions at hand. Moreover, he was diagnosed with antisocial personality disorder and has a habit of breaching court orders.

He has a lengthy criminal record with several priors for violent offences and has accumulated a multiplicity of disciplinary infractions which also involve the use of violence. [ 83 ] The Court concludes that the accused is an intractable offender with a high likelihood of harmful recidivism. A lesser measure other than an indeterminate sentence of imprisonment will not adequately protect the public against the commission by the accused of murder or a serious personal injury offence.

FOR THESE REASONS, THE COURT : [ 84 ] DESIGNATES the accused, Nakiba Adams a dangerous offender; [ 85 ] SENTENCES the accused to detention in a penitentiary for an indeterminate period of time with respect to the counts of assault causing bodily harm and aggravated assault; [ 86 ] SPECIFIES for the benefit of the accused that

section 761 of the Criminal Code stipulates that the Parole Board of Canada shall, upon the expiration of seven years from the day on which he was taken into custody and not later than every two years after the previous review, review his condition, history and circumstances for the purposes of determining if he should be granted parole, and if so, on what conditions; [ 87 ] ORDERS , pursuant to

section 760 of the Criminal Code , that the following information be transmitted to the Parole Board of Canada : 1) the stenographic notes of the trial and the judgment; 2) the stenographic notes of the sentencing hearing; 3) a copy of the assessments of France Proulx (psychiatrist) and Jean-Philippe Vaillancourt (psychologist); 4) a copy of the report of Audrey Bordeleau (probation officer) and all reports contained in Exhibit S8. [ 88 ] ISSUES an order pursuant to

section 109 of the Criminal Code prohibiting the accused from possessing firearms, ammunitions, weapons and other prohibited devices, for life; [ 89 ] ISSUES an order pursuant to

section 487.051 of the Criminal Code authorizing the taking of DNA samples on the person of the accused.

__________________________________ FLAVIA K. LONGO, J.C.Q. Me Sylvie Dulude For the DPCP Me Melissa Podilchuk For the accused Date of hearing: December 8-9, 2022 January 11, 2023 February 7-8, 2023 May 16, 2023