R. v. Heaton, 2018 BCPC 136

Citation: R. v. Heaton 2018 BCPC 136 Date: 20180604 File Nos: 238516-1, 238516-2-C, 239080-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. CALEB TIMOTHY HEATON RULING ON DANGEROUS OFFENDER APPLICATION OF THE HONOURABLE JUDGE G. RIDEOUT BAN ON PUBLICATION 486.4(1) CCC; 486.4(2) CCC Counsel for the Crown: M. Donnelly Counsel for the Defendant: C. Corriveau Place of Hearing: Vancouver , B.C. Dates of Hearing: Apr. 21, Oct. 7, Dec. 13, 14, 15, 16, 19, 20, 2016; Mar. 6, 7, 8, 9, 24, 28, 29, 30, 31, Jul. 11, 12, 13, Oct. 25, 26, 27, Dec. 6, 2017; Jan. 23, 24, 25, 26, 2018 Date of Judgment: June 4, 2018 A. INTRODUCTION

[1] Caleb Timothy Heaton (“Heaton”) has entered guilty pleas that on March 26, 2015, at Vancouver, British Columbia, he committedthe aggravated sexual assault of K.A., contrary to s. 273(2)(

b) of the Criminal Code of Canada (the “Code”); that he confined K.A.without lawful authority, contrary to s. 279(2) of the Code; and that he did break and enter the residence of K.A. and did commit theoffence of robbery, contrary to s. 348(1)(

b) of the Code (the “predicate offences”). [2] Heaton has also pled guilty that on May 15, 2015, while in custody at the courthouse at 222 Main Street, Vancouver, he escapedfrom lawful custody, contrary to s. 145(1)(

a) of the Code (the “escape”). [3] Based on the circumstances surrounding the predicate offences, Heaton’s previous criminal history and his resistance to anymeaningful treatment to reduce risk, the Crown seeks to have him declared a dangerous offender on the basis that he constitutes a threatto the life, safety, physical or mental being of other persons as described in the dangerous offender provisions contained in the Code. [4] The Crown further contends that there is no reasonable possibility of any meaningful and effective treatment that could, within afixed timeframe, adequately control Heaton’s risk in the community and, as such, the court should decline to exercise its residualdiscretion to impose a determinate sentence.

B. GENERAL PRINCIPLES IN DANGEROUS OFFENDER PROCEEDINGS [5] The Supreme Court of Canada (the “SCC”) has confirmed that dangerous offender proceedings form part of the sentencingprocess: R. v. Jones, (SCC), [1994] 2 S.C.R. 229, at pp. 279-280. The SCC has also confirmed that when interpreting thedangerous offender provisions, the court must be guided by the fundamental purpose and principles of sentencing contained in ss. 718 -718.2 of the Code: Johnson, 2003 SCC 46, at para. 23. [6] At their root, the dangerous offender provisions are examples of preventative sanctions.

The protection of the public mustultimately be at the forefront of a court decision to declare or not declare an offender as a dangerous offender: R. v. Sipo, 2014 SCC 47. [7] An offender cannot be designated as a dangerous offender unless a court concludes that the offender is a future “threat” after aprospective assessment of risk. This future risk assessment requires a consideration of future treatment prospects: Boutilier, 2017 SCC64, at para. 23. [8] In the leading case of R. v.

Lyons, (SCC), [1987] 2 S.C.R. 309 at 338, the SCC read the objective element of thedesignation - the requirement that the predicate offence be a “serious personal injury offence” - together with the subjective element - the“threat” assessment - and concluded there were four criteria explicit from the language of s. 753(1): (1) the offender has been convictedof, and has been sentenced for, a “serious personal injury offence”; (2) this predicate offence is part of a broader pattern of violence; (3)there is a high likelihood of harmful recidivism; and (4) the violent conduct is intractable. [9] The SCC in Boutilier, supra, at para. 27 defined “intractable” conduct as meaning behaviour that an offender is unable tosurmount. [10] Additionally, for an offender to be declared dangerous and then to be penalized with the extreme form of a preventative sentence,the offender “must pose a future threat to public safety”: Ibid, at para. 34. [11] In determining whether or not a high risk of recidivism and intractability is present necessarily involves a prospective inquiry intowhether the offender will continue to be “a real and present danger to life or limb”: Ibid, at para. 35. [12] The second category of dangerousness based on sexual conduct, under s. 753(1)(b), reinforces the conclusion that s. 753(1)(a)mandates a prospective assessment.

This category requires, in addition to evidence of a pattern of past conduct, an independentassessment of future risk: Ibid, at para. 38. [13] Evidence of future treatment prospects remains relevant at both stages of the hearing. All of the evidence adduced during adangerous offender application must be considered at both stages of the hearing. [14] The Crown and the accused “must” present any prospective evidence concerning risk, intractability, or treatment programs,including the required assessment report pursuant to s. 752.1 addressing prospective treatment options.

Many aspects of clinicalevaluations provide evidence going to both the assessment of the offender’s future risk and the penalty necessary to manage this risk:Ibid, at para. 44. [15] The concluding remarks of the SCC in Boutilier, ibid, at para.46 are apposite to this hearing: [46] In sum, a finding of dangerousness has always required that the Crown demonstrate, beyond a reasonable doubt, a high likelihood ofharmful recidivism and the intractability of the violent pattern of conduct.

A prospective assessment of dangerousness ensures that onlyoffenders who pose a tremendous future risk are designated as dangerous and face the possibility of being sentenced to an indeterminatedetention. This necessarily involves the consideration of future treatment prospects. …. [16] The conduct to be considered in determining whether the Crown has proven beyond a reasonable doubt that an offender poses afuture danger to society is conduct in “any sexual matter”. Offences that are not “sexual” cannot be considered in assessing whether theCrown has proven the criteria under s. 753(1)(

b) of the Code. [17] The determination as to whether there is a likelihood that an offender will commit future harm through a failure to control sexualimpulses must be made with reference to his “present condition according to past behaviour and patterns of conduct”: Ibid, at para. 26. C. LEGAL FRAMEWORK (

i) The Statutory Scheme

[ 18 ] The dangerous offender scheme is designed as a “two-stage” process. The first stage is characterized as the “designation stage”: 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. [ 19 ] The second stage is characterized as the “penalty stage”: 753(4) 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.

(4.1) 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. [ 20 ] Section 753(1) contemplates two categories of dangerousness: (

a) dangerousness resulting from violent behaviour; and (

b) dangerousness resulting from sexual behaviour. [ 21 ] The Crown is applying under ss. 753(1) (a)(iii) and (

b) for a finding that Heaton is a dangerous offender. Both subsections require that the Crown establish beyond a reasonable doubt that one or all of the predicate offences are serious personal injury offences. [ 22 ]

Section 752 defines a “serious personal injury offence” as: (

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

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

b) an offence or attempt to commit an offence mentioned in

section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault). ( sévices graves à la personne ) D. DESIGNATION STAGE (

i) Application of s. 753(1)(a)(iii) of the Code [ 23 ] Section 753(1) (

a) of the Code requires the Crown to prove beyond a reasonable doubt that Heaton “constitutes a threat to the life, safety or physical or mental well-being of other persons”. Once that threshold has been established then it must be determined whether Heaton will continue to be dangerous in the future. [ 24 ] Section 753(1)(a)(iii) of the Code requires the Crown to prove beyond a reasonable doubt that the predicate offence(

s) are of such a “brutal nature as to compel the conclusion the behaviour the future is unlikely to be inhibited by normal standards of behavioural restraint”. [ 25 ] Under this

section the Crown must establish beyond a reasonable doubt: (1) that Heaton constitutes a threat to the life, safety and

physical and mental well-being of other persons; (2) that Heaton’s behaviour falls within the definition of “brutal nature”; and (3) thebrutal nature compels the conclusion that Heaton’s behaviour in the future is unlikely to be inhibited by normal standards of behaviouralrestraint”. [26] The definition of brutal includes circumstances in which an offender’s conduct can be described as, “merciless… inhuman…savage… cruel and unfeeling… vicious”: R. v. Campbell, (ON SC), [2004] O.J. No. 2151, at para. 47. (ii) Application of s. 753(1)(

b) of the Code [27] Under this section, after the Crown has established that Heaton committed a “serious personal injury offence”, the Crown mustprove beyond a reasonable doubt that:

(1) Heaton’s past conduct has shown a failure to control his sexual impulses; and, (2) a likelihoodthat Heaton would cause injury, pain or other evil to other persons through his failure to control his sexual impulses in the future. [28] Once a court enters a conviction for a “serious personal injury offence”, this triggers the s. 753(1)(

b) analysis: R. v.

Currie, (SCC), [1997] 2 S.C.R. 260, at paras. 25 and 26. [29] The emphasis in relation to a conviction for a sexual assault in dangerous offender proceedings is to determine if Heaton presents a“future danger to society”: Ibid, at para. 26. [30] The determination as to whether there is a likelihood that Heaton will commit future harm through a failure to control sexualimpulses must be made with reference to his “present condition according to past behaviour and patterns of conduct”: Ibid. [31] In relation to sexual offences, a single conviction can give rise to a dangerous offender designation under this section: R. v.Boutilier, 2017 SCC 64, at para. 102.

E.

PENALTY STAGE [32] Sections 753(4) and (4.1) provide the framework for the application of judicial discretion in sentencing and offender under PartXXIV of the Code. [33] Once a court designates an offender as dangerous, the court has three sentencing options available under s. 753(4): (1) impose asentence of detention in a penitentiary for an indeterminate period; (2) impose a sentence for the offence for which the offender has beenconvicted and order that the offender be subject to a long-term supervision order that does not exceed 10 years; or (3) impose a sentencefor the offence for which the offender has been convicted. [34] The sentence imposed cannot exceed what is necessary to achieve the public protection objective.

When deciding between thethree sentencing options, a court is required to predict whether it is in a position to fix the length of an offender’s sentence or whether itwould be dangerous to public safety to do so and leave the issue of eventual release to corrections and parole officials: R. v. Davidson,2015 BCPC 335 , 2015 BCPC 0335, at paras. 34 - 35. (

i) Onus in relation to s. 753(4.1) [35] In R. v.

Wormell, 2005 BCCA 328 , at paras. 32 - 34, Southin J.A. discussed the meaning of “satisfied” and the burden ofproof as it related to the pre- 2008 dangerous offender amendments: [32] The task of the Court from beginning to end is to ask itself, "Am I satisfied that there is a reasonable possibility of eventual controlof the risk in the community?" If the judge concludes that he or she is not so satisfied then the judge cannot designate the offender along-term offender. [33] In my opinion, it is not right to approach this with burden of proof at the back of one's mind.

Burden of proof, whether it is proofbeyond a reasonable doubt or on a balance of probabilities, directs itself to determining past events. [34] While on a dangerous offender application the Crown must prove beyond a reasonable doubt past conduct of the accused which itsays is relevant, there can be no burden of proof in the classic sense in the assessment of the future. [36] In concurring reasons, Ryan J.A. also discussed the meaning of “satisfied” and held that proof beyond a reasonable doubt was notrequired, at para. 61: [61] Thus if the Crown proves that the offender meets the statutory criteria of a dangerous offender, then, before making thedesignation, the sentencing judge must turn to the criteria in s. 753.1(1)(

c) which requires only that the court be satisfied that there is areasonable possibility of eventual control of the risk in the community. Nowhere in the Johnson decision do the Supreme Court justicesstate that the Crown must prove beyond a reasonable doubt that there is no reasonable possibility that the offender will eventually bemanageable in the community. In my view they do not say that because it would be inconsistent with their reasoning. [37] In R. v.

Walsh, 2011 BCSC 1911, at paras. 285 and 291, Arnold-Baily J. found the comments of both Southin J.A. and Ryan J.A.instructive with respect to the post-2008 dangerous offender amendments in interpreting s. 753(4.1): [285] I find the comments of Southin J.A. and Ryan J.A. apposite to this determination. Therefore, the determination under s. 753(4.1)requires the court to be "satisfied," in the sense discussed above, that there is a reasonable expectation that a lesser measure willadequately protect the public from the risk that Mr.

Walsh will commit murder or a serious personal injury offence, but does not place aburden on the Crown of proof of this element beyond a reasonable doubt. [291] What I draw from the above authorities as to the meaning of the phrase "reasonable expectation that a lesser measure ... willadequately protect the public" in s. 753(4.1) is that it amounts to "a confident belief, for good and sufficient reasons" to be derived fromthe quality and cogency of the evidence heard on the application. Unless a judge is so satisfied by the evidence "that a lesser measure ...

will adequately protect the public against the commission by the offender of murder or serious personal injury offence" he or she isrequired by the subsection to impose an indeterminate sentence upon an offender found to be a dangerous offender. (ii) Meaning of a “Reasonable Expectation” in s. 753(4.1) [38] An “expectation” speaks to a belief that something will happen, as opposed to the mere possibility that something will happen: R.v.

D.J.S., 2015 BCCA 111, at para. 30, (leave to appeal refused: 2015 SCC No. 36444.) [39] A “reasonable expectation is a confident belief, for good and sufficient reasons to be more derived from the quality and cogency ofthe evidence heard on the application”: Walsh, supra, at para. 291. (iii) Treatability - Meaning of a “Lesser Measure will Adequately Protect the Public” in s. 753(4.1) [40] Prior to the 2008 dangerous offender amendments, the SCC in Johnson, supra at para. 32 provided guidance with respect to thisphrase: [32] In those instances where both the dangerous and long-term offender provisions are satisfied, it may be that the sentencing sanctionsavailable under the long-term offender provisions are capable of reducing the threat to the life, safety or physical or mental well-being ofother persons to an acceptable level.

Under s. 753.1(3), long-term offenders are sentenced to a definite term of imprisonment followed bya long-term community supervision order of a maximum of ten years in accordance with the Corrections and Conditional Release Act.Supervision conditions under s. 134.1(2) of the Act may include those that are "reasonable and necessary in order to protect society". Thevery purpose of a long-term supervision order, then, is to protect society from the threat that the offender currently poses -- and to do sowithout resort to the blunt instrument of indeterminate detention.

If the public threat can be reduced to an acceptable level through eithera determinate period of detention or a determinate period of detention followed by a long-term supervision order, a sentencing judgecannot properly declare an offender dangerous and sentence him or her to an indeterminate period of detention. [41] Wilson J. in R. v. Taylor, 2012 ONSC 1025 , [2012] O.J. No. 1564, at para. 348, adopted the Johnson tests with respect tothe current dangerous offender scheme: [348] I adopt the test in Johnson.

I must be satisfied that there is a reasonable expectation defined as a confident belief for good andsufficient reason based upon the evidence that a penitentiary sentence followed by a 10 year supervision order will "reduce the threat tolife, safety or physical or mental well-being of other persons to an acceptable level". [42] In order to achieve the goal of protection of the public, case law has held that there must be evidence of treatability that is “morethan an expression of hope”. In R. v. McCallum, (ON CA), [2005] O.J.

No. 1178, at para. 47, the Ontario Court ofAppeal identified the nature of the evidence that was required in order to achieve the goal of the protection of the public in relation to thedangerous offender scheme: [47] Case law from this court and from the British Columbia Court of Appeal under the former dangerous offender legislation and theamended provisions has held that in order to achieve the goal of protection of the public under the dangerous offender and long-termoffender provisions, there must be evidence of treatability that is more than an expression of hope and that indicates that the specificoffender can be treated within a definite period of time: R. v.

Poutsoungas (1989), (ON CA), 49 C.C.C. (3d) 388 (Ont.C.A.); R. v. Higginbottom (2001), (ON CA), 156 C.C.C. (3d) 178 (Ont C.A.). In R. v. M.(J.S.) (2003), 2003 BCCA 66, 173 C.C.C. (3d) 75 (B.C.C.A.), the court stated that the basic purpose of the dangerous offender provision before the 1997amendment was the protection of the public and that under the amended legislation, the test for achieving that goal is set out in s.753.1(c), namely, whether there is a reasonable possibility of control in the community of the risk of the offender re-offending. The courtalso noted that the French version of the

section requires "une possibilité réelle", or a "real possibility", which may require an evenhigher degree of certainty in the evidence than the English version, a "reasonable possibility". [43] Specifically, the court must be satisfied that: (1) the evidence of treatability is more than an expression of hope; (2) the evidencemust indicate that the offender can be treated within a definite period of time; and (3) the evidence of treatability must be specific to theoffender: R. v.

Bragg, 2015 BCCA 498, at para. 55. [44] Evidence concerning the availability of treatment and supervision programs is relevant to assessing the treatability of a dangerousoffender. To be satisfied that an offender’s risk can be adequately managed in the community, there must be evidence that the proposedtreatment options and supervision options are reasonable and presently available: R. v. G.L., 2007 ONCA 548, at paras. 58-63. [45] In relation to the supervision component, there must also be evidence that there are supervision resources available to complementthe treatment component.

To be effective, the availability of those resources cannot be uncertain: R. v.

Trevor, 2010 BCCA 331, at para.35. [46] Additional evidence relevant to assessing an offender’s risk to reoffend can be characterized as internal factors (those that areinnate to and can be controlled by the offender) and situational factors (those that are external to and cannot be controlled by theoffender). [47] Though not exhaustive, this court in Davidson, supra, at paras. 50 and 51 identified internal and situational factors that may beconsidered relevant in assessing an offender’s risk to reoffend: [50] Internal factors may include: 1.

Motivation: whether a dangerous offender is interested in personal change and is motivated to attempt to engage in correctionaltreatment - the fact that an offender is not committed to his treatment is an indication of future risk: D.J.S., at para. 26; Boutilier, at para.163; R. v. Kim, 2000 BCSC 1506, at para. 71; R. v. R.B., 2001 ONCA 328, at para. 14.

2. Lack of insight/attitude/remorse/acceptance of responsibilities: an offender's failure to accept responsibility for his offences and a lack of remorse are relevant to the offender's present and future dangerousness and to his prospects of treatment: Boutilier , at para. 185 ; Kim , at para. 73 . 3. Lack of confidence: a lack of confidence increases the likelihood that the offender will either quit or give up on his efforts to change his behaviour: Boutilier , at para. 170 . 4. Age "burn-out": increasing age correlates to physical health deterioration and sex drive reduction.

The burn-out factor has been accepted as a factor relevant to the offender's possibility of future re-offences. However, in Boutilier , at para. 171 , Voith J. noted that the burn-out factor has little relevance where the opinion evidence suggests that it does not apply to the particular type of offence or medical illness at issue, e.g. pedophilia and psychopathic traits.

In addition, the burn-out factor has diminished value when there is no evidence linking the particular offender with the general theory and when the offender shows a pattern of increasing severity of offences or continued severe offences at an older age: R. v. Jesse , 2013 BCCA 456 ; R. v. Howse , 2000 BCSC 1885 , at para. 52 ; R. v. Bruneau , 2009 BCSC 1089 , at para. 195 . 5. Underlying deviant sexual interests: D.J.S. , at para. 11 . 6. The offender's attitude that predisposes him to offending: a. Recklessness or impulsivity: an indicator of future risk: Boutilier , at para. 161 . b.

Using sex to cope with negative emotions: D.J.S. , at para. 9 . c. Negative attitudes towards women: D.J.S. , at para. 9 . 7. Intimacy deficits: D.J.S. , at para. 9 . 8. Past offenses while on community supervision: R. v. Natomagan , 2012 SKCA 46 at para. 41 . 9. Poor attitude towards intervention: D.J.S. , at para. 9 . 10. Problems with supervision: Boutilier , at para. 173 . 11. Willingness to participate in psychological and/or pharmacological treatment: Medication: R. v. Sawyer , 2015 ONCA 602 , at para. 41 . [51 ] Situational factors may include: 1.

Being in a position of authority or power over a vulnerable female (child, youth, or intoxicated female): D.J.S. , at para. 36 . 2. Being alone with a female: D.J.S. , at para 9 . 3. Substance abuse: D.J.S. , at para. 12 . 4. Anti-social peers or pro-social support: Boutilier , at para. 175 . (iv) Long-Term Supervision Order (“LTSO”) [ 48 ] The purpose of an LTSO is twofold: (1) to protect the public, and (2) to rehabilitate and reintegrate offenders back into the community.

Further, the intention behind the legislative scheme was to create a mechanism which would be speedy and inflexible and which would not result in lengthy re-incarceration of offenders in the absence of a new crime being committed: R. v. Ipeelee , 2012 SCC 13 , at paras. 45 , 47 50 and 54. [ 49 ] The supervision period in a LTSO is not intended to be penal, but rather to accomplish the goal of preventing future crimes: R. v.

R. (J.W.) , 2010 BCCA 66 , at para. 43 . [ 50 ] By operation of ss. 134 and 134.1 of the Corrections and Conditional Release Act (“ CCRA ”), an offender is subject to conditions that are imposed by the National Parole Board (“NPB”), as well as being subject to instructions imposed by a Community Parole Officer (“CPO”). The NPB may set or cancel conditions. In other words, once an offender’s sentence has expired, he or she is essentially on parole. As such, “an order of this nature is a drastic interference with the liberty of the subject”: R. v.

Norman , 2015 ONSC 2735 , applied Davidson , supra, at para. 56 . [ 51 ] While the NPB will not impose a supervision condition requiring that an offender take a specific type of medication, the NPB can require an offender to follow psychiatric counselling, which may include a prescription of a specific type of medication: Davidson , supra, at para. 57 . [ 52 ] If the offender refuses to take prescribed medication, then the NPB can view that failure as a potential breach.

Under s. 135.1 of the CCRA, the NPB can then suspend the order, authorize the apprehension of the offender, and commit the offender to a community- based residential facility or into custody until the suspension is cancelled or new conditions have been imposed. The period of the commitment must not exceed 90 days: Ibid , at para. 58. F. CIRCUMSTANCES OF THE PREDICATE OFFENCES [ 53 ] Pursuant to s. 655 of the Code Admissions of Fact [Ex. 1] were filed by the Crown and counsel for Heaton. The admissions are extensive.

However, the admissions are highly relevant evidence both in relation to the designation stage and the penalty stage of this

hearing. [ 54 ] Accordingly, I have incorporated the entirety of the written Admissions of Fact as read in by the Crown into this ruling: MS. DONNELLY: I'll just wait till Mr. Sheriff's done. THE COURT: Yes. MS. DONNELLY: [As read in]: The Admissions of Fact. Pursuant to

section 655 of the Criminal Code of Canada and the agreement of counsel the following facts are admitted for the purpose of dispensing with the truth thereof. Caleb Timothy Heaton, the accused, was born on December 7th, 1989, and was 25 years old at the time of these offences. He grew up and lived mostly in the Waterloo area of Ontario. Sometime after being released from jail in Hamilton, Ontario, on October 28th, 2014, and prior to mid-December, 2014, the accused made his way westward to Vancouver.

From the time he arrived in Vancouver to the time of these offences the accused stayed in a number of shelters and began receiving social assistance. His interaction with Vancouver Police from the time he arrived to the date of the offences appears to be limited to a December 14th, 2014, check for causing a disturbance in the downtown area. When police dealt with him the accused provided a false name. Based on statements he made the police noted the accused appeared to be suffering from a mental disorder. He was checked again later in December for yelling at passersby on a downtown street.

In the days before the offences the accused stayed at the Haven, an emergency shelter located at 128 East Cordova under the name of Caleb Henderson. The accused was referred to the Haven shelter by an Outreach worker at the Anchor of Hope drop-in centre. The Outreach worker, Jason Hamilton, spoke to the accused who advised he was new to the city and had been on the streets for the past four or five days. The accused responded in the affirmative when asked if he was interested in joining the activities in the shelter to try and get him some help.

Hamilton was able to determine there was a free bed at the Haven and walked the accused down to the shelter and introduced him to an intake worker. Hamilton saw the accused periodically throughout his stay at the shelter as he would ask about services in the area and places to eat. Hamilton's impression of the accused was that he was a little weird or a little off, but he did not think he was suffering from any mental health issues. He described the accused as succinct and present. He advised the accused he was looking for some assistance in getting set up and described the accused as well-spoken.

The intake worker from the Haven recalled doing the intake assessment with the accused on March 19th, 2015. He said that the accused was introverted and didn't want to share much information with him. The accused advised he had come from Ontario and was looking for work in either a factory or construction. He said he had studied a pre-firefighting course at a college in Sudbury but was not interested in pursuing that career. He also stated that he didn't talk with his family. The intake worker noted that the accused laughed at points in the interview that weren't humorous and smiled to himself.

The intake worker wasn't sure if there were mental health issues or if the accused had a macho-type attitude, but recommended that the accused have a mental health assessment with a nurse. The accused never followed through on that assessment recommendation. On March 26th, 2015, at 8:33 a.m. the accused called 911 from a pay phone near the public library on Robson Street. The call lasted approximately four minutes. The accused immediately identified himself and advised he wished to turn himself in.

He stated he had done a B and E on Granville and another near the Commercial and Broadway SkyTrain Station that night. He provided his full name and date of birth and responded to all the questions the operator asked of him. Most of the subsequent conversation involved locating exactly where he was calling from and where it was he should go and meet with the police. There was nothing unusual in the conversation and the accused was calm throughout. At 8:47 a.m. Constable 2867 Antoniase [phonetic] arrived at the corner of Robson Street and Homer Street to respond to the accused's call.

The accused approached her police wagon and identified himself as the caller. The accused was placed in handcuffs and a cursory search was conducted for safety purposes. Nothing was located. The accused was then placed in the side compartment of the police wagon with the door left open and asked why he had called the police. The accused advised Constable Antoniase that he was involved in two criminal acts between 3:30 and 5:30 a.m. that morning. He stated that he forced entry into the garage of a furniture store located on the west side of Granville Street in the area of Broadway.

He stole a camera and tossed various items all over the interior. He took off his jacket shortly thereafter and threw it in a nearby dumpster in an effort to evade police. He then threw a rock through the window of a church located near the Commercial and Broadway SkyTrain Station. He gained entry into the church through a broken window, used the washroom and left his backpack inside. He sustained a small cut on his inner right wrist from using the rock to smash the church's window. The backpack he had left inside the church contained the rock he had used to smash the window.

The accused was forthcoming with all the information. Constable Antoniase only asked a couple of questions including what was the accused wearing and what did he take from the furniture store and what he did with it. The accused described himself as wearing a blue hooded sweater with Yale written across the chest in white writing, a yellow and black rain jacket with the hood up, blue jeans and white Nike runners with an orange swoosh, the same clothes he was wearing minus the rain jacket. He said he only took the camera and discarded it about a block from the store.

When asked why he was confessing the accused responded they would have found his fingerprints anyway and that someone had seen him running out of the furniture store. Constable Antoniase subsequently checked the police computer base and was not able to locate any reports of break and enters that matched the accused's description. She subsequently removed the accused from the wagon, took off his handcuffs and told him he could proceed, but asked where he was staying should any additional information come to light. The accused advised he was staying at the Haven.

Constable Antoniase described the accused as calm and collected. She said he was calculated in his explanation of what had occurred and he spoke in a normal fashion. She did note that when she asked her questions he became reluctant to respond and spoke in short answers like "sure, okay, whatever". She did not believe that he was under the influence of drugs but did think mental illness was a factor as the accused was initially excited to tell her about the crimes he had committed. She questioned whether he was fabricating the details.

At 3:45 a.m. on March 26th, the manager of a furniture store at [omitted for publication], “The Store”, received a call from the alarm company that the store alarm had been triggered. The manager drove to The Store and arrived at approximately four a.m. He drove around the perimeter of The Store and saw no signs of a break-in. He parked, got out of his car and proceeded to a side door. He noted it was ajar. He then heard noises inside The Store, realized someone was inside and ran back to his car to call the police.

He saw a person run from the door wearing a grey hoodie over their head and a dark blue and black or grey winter jacket. He did not see the front of the person or a face. The manager drove back to this person trying to get a better look but lost him when he was stopped at a red light at Granville and 7th Avenue. He returned to The Store and was met by police. The police arrived at The Store at 4:30 a.m. and met with the manager. They entered the building and noted that drawers and cupboards had been rifled through and items were strewn about. The cash drawer had been opened and was dumped on the floor.

A small safe in the back office had been moved to the front of The Store but appeared to have been abandoned, perhaps because it could not be opened. The back office was also rifled through and items strewn around. The police noted the alarm pad and siren had both been ripped off the wall and were on the floor. Police believe The Store was accessed possibly through a crawl space under the part of the building and then through holes made in three separate interior walls; the first to gain access to a loading bay or garage area, and second to enter the store.

There is an error in terms of the spelling of store in my version, s-t-o-r-e, of course. The third hole wasn't very large and was likely abandoned as there were large pieces of furniture on the other side that would have prevented entry. The Forensic Identification Team was called and examined the scene for prints. The only prints of value that were found were those of the owner.

They did note that on the floor beside the side door that the accused was seen running out of, there was a toolbox that had been moved from the basement, a sledgehammer with drywall dust on it and a garbage can -- garbage bag, excuse me, that contained items from the store. At approximately three p.m. that day the manager of The Store was called by the owner of another business at [omitted for publication], located about two blocks north of The Store. She advised that she found property from The Store scattered in the parking area of her business.

The manager of The Store attended and retrieved an envelope full of the previous day's receipts, a camera they had in a drawer at the store that didn't work and his sweater. Nothing else appeared to have been taken from The Store. Shortly after nine a.m. on March 26th the [omitted for publication] at [omitted for publication], “The Church”, reported a break and enter to The Church that occurred sometime during the night of March 25th-26th. The Church is near the Commercial-Broadway SkyTrain Station.

A woman who worked for the [omitted for publication], who rents space from The Church, came to work as usual at nine a.m. on March 26th. She noticed that one of the windows at the rear of The Church had been shattered but not broken, another window was gone. When she peered inside she saw a large rock on the floor surrounded by broken glass. The main door to The Church at the front of the building was found to be unlocked. It appeared that someone had gained entry to The Church through the window. The person then left out the front door leaving it unlocked. Nothing appeared to have been taken.

No backpack was noted. It's unknown what the accused did from the time he left Constable Antoniase until he was next spotted at approximately 11 a.m. in the [omitted for publication], which is about a block and a half from the complainant's home. A witness was in his front yard having a cigarette when he saw a male walking east on Union. About two minutes later he saw the same male walking west on Union Street. He said the male didn't look like he belonged, like he was confused and looking for something. The witness kept an eye on him. The male was wearing grey pants and a T-shirt with horizontal strips.

The witness stated that when he saw the news in the evening he recognized the accused as being the male he saw in the [omitted for publication]. Sometime between 11:30 and noon a witness who lived in the [omitted for publication] heard a male knock on his back door. The male said that he was conducting a survey. The witness did not believe the male as he was not carrying a clipboard and he had no ID. The witness thought he might be there to steal his barbecue and told him to get off his property. He saw the male leave eastbound in the laneway.

He described the male as wearing grey sweatpants and grey T-shirt, short buzz cut, 24 years old and six feet tall. Approximately 11:30 a.m. another witness was having lunch in her home in the [omitted for publication] which is about a block and a half from the complainant's house, when she heard what she described as an urgent aggressive knock on her door. She thought it might be an emergency. She looked out the window and saw a male at the door. She almost unlocked the door to answer, but instead yelled through the door, what is it that you want.

The male responded he was doing a survey on homelessness in the city. The witness informed him through the door that she didn't have time to do a survey. She noted he was not wearing any formal identification or badge. Later that day she saw media photos of the accused when he was arrested and believes it was the same person, both had the same build, the skin colour, height and hair. At approximately 11:45 a.m. another witness was working in her home in the [omitted for publishing] which is one block from the complainant's house when she saw a male enter her yard.

She described him as big with a shaved head, six feet, lanky, wearing a grey shirt. She thought that he may have been casing her house. He didn't knock on her door but instead turned around and left heading southbound on Hawks. The witness said that she recognized the accused from the news as the same person that was in her yard. Sometime around noon a few houses south and also in the [omitted for publishing] Avenue another witness was in the bathroom of his home when he heard a knock on the door. As he tried to right himself to answer the door he heard a second knock.

At this point he looked out the window and saw a male walking southbound on Hawks. The male had short hair and was carrying a grey hoodie or sweater over his arm and wearing a grey shirt. He had light skin, his hair was short and dark, his build average and looked -- and looked in his 30s. The witness thought that the male went to the neighbour's door a few door south. He thought it suspicious that the male did not go door to door, but rather skipped certain residences. He was concerned enough about the male that he stayed in his home for about 30 minutes to make sure the male didn't return.

When he later saw the accused's picture online he believed it to be the same male. At approximately 12:05 p.m. in the [omitted for publishing] a witness heard a male knock on his door. The witness answered. The male said he was from the Government and was taking a poll. He asked how many people were in the house. The witness told him there were three and the male hastily walked away. The witness watched him walk south on Hawks and decided to call the police. He described him as 24 to 28 years old with a pointy chin, striped shirt, short brown hair, white, baggy track pants, holding another shirt in his hands.

The complainant is in her late 30s and at the time lived at [omitted for publishing]. On March 26th she was working from her home. She made lunch for herself and opened the front door to air out the kitchen. Because it was a nice day she left the front door open and continued to work. At one point she got up and went to the kitchen to fill her water bottle. The complainant turned around and saw the accused standing inside her house near the entrance. He was dressed in jogging pants, a shirt and was holding a hoodie over his arm. He said that he was doing a survey and asked her if she had a roommate.

She replied that she did. The accused asked her where her roommate was and the complainant replied she was at work. At that point the accused came towards the complainant with a rock in his hand. He began to smash her head with it. She tried to move away but he grabbed her and continued to smash her head. The complainant said she could see the blood squirting from her head. Despite being in shock she was able to ask him what he was doing and what he wanted. The accused replied that he wanted her credit cards. The complainant told him to take them and that they were in her wallet on the kitchen table.

Instead of going towards the kitchen the accused pulled the complainant towards her basement door. The complainant again asked the accused what he was doing. He told her he was going to rape her. The accused pushed the complainant to the ground and grabbed a skipping rope that was already in the home. He tied up her hands very tightly. The complainant said he took his time doing this and repeatedly wrapped the rope around her hands tying them up in front of her. She said it hurt and she kept telling the accused he was hurting her. She noted that at one point he untied a knot and redid it.

He then grabbed a long-sleeved Lycra cycling jersey that she had hanging by the door. The accused shoved the sleeve into the complainant's mouth so she wasn't able to speak and could only breathe through her nose. He took the remainder of the jersey and tied it very tightly around her neck. She described it as super tight. The complainant was struggling while this is happening and believed at one point that she was kicking the accused. The accused then shoved her down the stairs into her basement area. She said she ended up summersaulting twice down the stairs landing on the cement floor.

The accused was right behind her. In the basement he grabbed the complainant's head and smashed it several times against her washing machine. He again repeated that she was going to get raped and that he needed to do this to her. He pulled down her pants and underwear. The accused tried unsuccessfully to have vaginal intercourse with the complainant. While this happened the complainant tried to remove the jersey from her mouth but was unable to do so because of the way in which she was bound. The accused then pushed the complainant over a table area.

She could hear the accused pumping a pumice hand cleaner she had on the table. She felt him insert his fingers in her anus apparently lubricated with the cleaner. She said his pants were around his ankles and he was stroking his penis. She said he entered her anus with his penis. She said he entered her three or four times. He wasn't wearing a condom. The complainant thought it was likely uncomfortable for him since the hand cleaner was for grease and contained sand or pumice.

The accused then pulled up his pants, walked a few steps and then turned around and grabbed the complainant's hair from the top of her head. He pulled her up the stairs by the hair. She recalled that her hair was dripping in blood by this point and there was blood everywhere. When they reached the top of the stairs an ironing board fell over and temporarily blocked the way to the kitchen. At this point the complainant was able to remove the jersey from her mouth and began to scream. The accused pushed past the ironing board and entered the kitchen.

He pulled the complainant with him and grabbed a kitchen knife from the drying rack. He put his arm around her neck, put the knife to her neck behind the ear and then lowered it to the shoulder. The complainant continued to scream for help. The accused yelled at her repeatedly to be quiet and to stop screaming and that he would kill her if she didn't stop. He picked up a glass jar with a candle in it and smashed it on her head. The complainant said that at that point she saw something black and felt free and able to move where she wanted to.

She believes she was on the floor of the kitchen at that point because she recalled crawling and using a chair to pull herself up. She was able to get up and run to her neighbour's door. Her neighbour let her in the house and locked the door. The complainant likely lost consciousness for some period of time when she was hit with the glass jar. B.N. lived in her neighbourhood. B.N. said he left his home sometime between 12:15 and 12:30 p.m. to go to the gym. He decided to first do a quick run to the Union Street market to get some food.

As he turned onto the [omitted for publishing] he heard screaming coming from the complainant's home. He noted that her door was wide open and he heard what sounded like a struggle. He paused for a moment to listen and realized that the screams were loud and desperate sounding and that the struggle sounded very violent. Initially he couldn't hear what the complainant was screaming but as soon as he made out the words, 'someone please help,' he rushed inside the home. B.N. ran into the kitchen. He saw the complainant on the floor in the kitchen with her head up against the cabinets, her pants were off.

He saw the accused on his knees facing the complainant. He said he saw the accused's penis inside the victim. He believed it was in her vagina but it could have been her anus, however he is certain that he saw the accused penetrating the complainant. The accused's pants were down around his ankles and he had no shirt on. B.N. ran over and punched the accused in the back and side of the head. He said he struck the accused somewhere between 10 and 15 times. He then grabbed the accused and pulled him off the complainant. The accused struggled to pull up his pants and kicked at B.N.

B.N. struggled with him trying to drag him out of the house. They stumbled down the front steps together. B.N. was yelling the accused had just raped someone and he needed help. The accused tried to run from B.N. B.N. tried to wrestle the accused to the ground and struck him in the head a few more times. At this point another neighbour helped B.N.. That neighbour then struggled with the accused through some bushes and ended up in a neighbouring building. They were able to grab the accused and bring him back, with three or four other people from the neighbourhood helping to keep him down.

During the course of saving the complainant and restraining the accused B.N. broke his hand. A witness who was passing by the complainant's home at the same time as B.N. heard the screaming and watched B.N. go into the house. She saw the accused come out of the house moments later. She saw B.N. run after the accused yelling he had raped someone and to call the police. As the accused ran from the house the witness saw him turn and look at her. He said he hadn't done anything wrong. While other witnesses were calling 911 she watched B.N. chase the accused and saw other men join in to help him.

She said they were able to get him on the ground. The witness said while the accused is being chased the complainant came out of her home. The witness saw her climbing on the neighbour's door beside her and screaming. She had no pants on and her panties were down around her knees. The complainant was let into the neighbour's house but emerged moments later and sat down on her stairs. She was covered in blood. Her hair was matted with blood. Her face was covered. Her hands were bloody and bound with rope. There was blood on her legs and pelvic area.

The witness said the complainant was clearly in shock and yelling for an ambulance. The witness confirmed that the person -- that the person arrested and put in the paddy wagon was the same person who emerged from the complainant's house wearing no shirt and pulling up his jogging pants. At 12:20 p.m. police in the area heard screaming and looked over to see what they thought was a group of people fighting. Constable

Koch [phonetic] ran over to the group and pulled some of the men off of the accused. As he held the accused on the ground people kept approaching despite being told to back away. A few people kicked the accused. One man picked up a large rock and held it over his head, approaching the accused as if he was going to hit him with the rock. Constable Koch told the man to stop. When he refused to do so and continued to advance Constable Koch pulled out his gun and challenged the man at gunpoint. The man stopped, dropped the rock and ran off. The accused was asked his name and he replied Caleb.

He reluctantly provided his last name. After being arrested and while waiting for the police wagon very angry neighbours continued to yell at the accused and took pictures of him with their cellphones. The accused was upset by this and told the police they're taking pictures of me and turned his head away. He was reluctant to say anything further to police advising he did not wish other people to hear what he was saying. After he was placed in the police wagon another officer opened the door to ask the accused to provide his full name and date of birth for identification purposes.

The accused refused and said he would speak at the jail. He asked if the reason the police wanted his name was to inform the media. It was only after he was told it was for police identification purposes that the accused provided the requested information. While Constable Koch dealt with the accused other members attended to the complainant. She was bleeding profusely from the head, crying out for an ambulance and shaking uncontrollably. Part of her left ring finger was missing. Police untied the ropes around her wrists.

They noted that both wrists were bound separately and then tied together using two skipping ropes. The cycling jersey was still tied around her neck. At that point the complainant told the police she had been raped and that the guy had cut off her finger. Police entered the complainant's home hoping to find the severed fingertip in the hope to be reattached. When they entered the home they noted a large amount of blood spread throughout the main floor and down the basement steps. It was clear that a violent struggle had just occurred.

They located the severed fingertip in the kitchen on the floor under the kitchen table. They also noted a number of knives on the kitchen floor. Police did seize the fingertip. Unfortunately the doctors were not able to reattach it. The doctors at St. Paul's Hospital concluded that the severance of the finger was, quote, 'suspicious of a bite wound,' closed quote, and treated the complainant accordingly. An X-ray of the remaining bone is described as fragmented and the wound described as jagged. The complainant is unable to say when or how the fingertip came off as she has no memory of it.

Given that the fingertip was found in the kitchen the severance likely occurred near the end of the attack, and given the complainant's lack of recall it likely occurred after the accused struck her on the head with the jar. In addition to losing the top portion of her finger the complainant suffered other injuries. The most notable injury was a skull fracture that ultimately did not require surgery. The middle finger on her left hand was bruised and bleeding at the base of the nail bed. There was also extensive swelling and severe blue bruising on the baby finger of the left hand.

She had four lacerations to her scalp that required suturing. Her right ear was completely bruised and swollen. Her lip was cut and swollen. She had abrasions on her neck and scratchers and abrasions on her nose and cheeks and bruising all over her face. She had bruising around both wrists and a large bruise on the back of her right hand. She had five significant bruises on her torso and upper extremities. There were scratches and abrasions on her right shoulder. She had four significant bruises on her legs along with a red and purple abrasion with open skin over the left knee.

There was a one centimetre by one centimetre cut on top of her left foot. The complainant had petechial bruises or small pin prick bruises across her forehead which are consistent with being strangled. There was no trauma noted to her anus but traces of the hand cleaner were found. There was redness and abrasion to the complainant's vagina, consistent with forced penile vaginal penetration. The complainant was unable to return to her house for weeks as the clean-up from the blood required renovation work to be done.

She had been unable to work since most of her work is on the computer and involved screen time which she has had to avoid because of the concussion that she suffered. The concussion had likely -- likewise stopped her from training as a triathlete. She described daily emotional upheaval with difficulty staying on task. The complainant told the police that when she was in the basement during the attack she resigned herself to the fact that she was going to die. She reflected on the fact that she had a good life and she became calm.

After the accused brought her back upstairs she realized she might not die and she might be able to do something. At that point she got the strength to get the jersey out of her mouth to scream. The complainant had previously worked as a paramedic and had experience with people on street drugs. She thought the accused might be high but did not think he appeared to be on crystal meth. He was in control of his body and not twitchy. These are the words she used to describe him during the attack.

Quote, 'He seemed like he was scared about what he was doing, like he didn't seem like he was really sure about what he was doing,' closed quote. Attached to these facts are seven photographs labelled attachment and numbered one through seven. Attachment one depicts a bloodstained rock found in the living room of the complainant's home. Attachment two depicts two ropes or skipping ropes that the accused used to tie up the complainant's hands. Attachment three depicts the Lycra cycling jacket the accused tied around the complainant's neck and forced into her mouth, one sleeve was cut by the ambulance attendants.

Attachment four depicts a knife with blood on it found on the kitchen floor. Attachment five depicts a jar with a candle inside of it with blood smeared across it. Attachment six depicts a front view of the complainant's severed fingertip. [ 55 ] K.A. completed a Victim Impact Statement (“VIS”) [Ex. 2]. Her VIS is relevant evidence both in relation to the designation stage and the penalty stage of this hearing. [ 56 ] Accordingly, I have incorporated K.A.’s VIS into this ruling as read in by the Crown: I'll read. [As read in]: I no longer feel safe in my own home.

I cringe when I see young men in grey jogging pants, and in fact, feel nervous around any men who are alone, walking around in my neighbourhood, daytime or at night. I am missing a one-third of my ring finger on my left hand. It is the finger my beautiful wedding ring is on. Every day I'm reminded of the horrific event. My skull is sensitive where it was cracked, and I struggle often with mild headaches that make it tough to concentrate. I have short-term memory loss on occasion and doctors have attributed this to the concussion sustained.

I wake up during the night if I happen to be sleeping on that side as the pain is too much to bear. Sadly I can't always control how I sleep and so being awoken regularly due to pain can make daytime tasks challenging. My ribs were knocked out of place and I now pull on my left rotator cuff muscles and ligaments. I can no longer train as a triathlete as my body

can't handle exercise to that level. I don't know if this will be something that improves over time. I am working with a physiotherapist, a massage therapist, an acupuncturist and an osteopath in an attempt to put my body back in the proper position. This will be a long process. There are days when the attention to this becomes overwhelming. I often wish my body would just be okay again. The lack of exercise for me is life changing. I had relied on endorphins to help stabilize my mood.

Sadly this is no longer possible and I am therefore relying on antidepressant medication which come with their own unpleasant side-effects. Being unable to work for just over 11 months I have struggled financially and emotionally. I am back at work at a new job and I struggle daily with screen time as my head is still foggy from the skull fracture and concussion. I wear pixel eyewear glasses to help. I have to use a sit-stand desk 'cause I can't stay seated for long intervals due to my ribs being out of place, strain on my back and the left shoulder is unbearable.

I was in a relationship at the time of the attack. That relationship didn't make it. We broke up a few months later. I know this event had a huge impact on some of my friends and to this day a few of my friendships struggle. G.

CIRCUMSTANCES OF THE ESCAPE [ 57 ] Pursuant to s. 655 of the Code Admissions of Fact [Ex. 3] were filed by the Crown and counsel for Heaton. [ 58 ] Heaton’s post offence conduct is a relevant consideration both in relation to the designation stage and the penalty stage of this hearing. [ 59 ] Accordingly, I have incorporated the entirety of the written Admissions of Fact as read in by the Crown: MS. DONNELLY: [As read in]: Pursuant to

section 655 of the Criminal Code of Canada and the agreement of counsel the following facts are admitted for the purposes of dispensing with the proof thereof. On May 15th, 2015, Caleb Timothy Heaton was scheduled to appear in custody at the Provincial Courthouse at 222 Main for the purposes of a bail hearing on File 238516. At 9:40 a.m. a deputy sheriff brought Heaton into to the prisoner's deck in Courtroom 101. Heaton was unrestrained. The deputy sheriff was standing between Heaton and the wall of the prisoner's dock. Heaton was standing closest to the door of the prisoner dock.

The court proceedings began with both the Crown and Heaton who was unrepresented speaking with the presiding judge about the timing of the bail hearing. Suddenly Heaton dropped his right shoulder and rammed the prisoner dock door very violently. The door opened. Heaton ran out of the prisoner dock, past the deputy sheriff positioned outside the dock, up the stairs of the courtroom and out the courtroom door. The deputy sheriff followed chasing Heaton. Heaton headed straight through the lobby of the Courthouse towards the front doors. Several deputy sheriffs saw Heaton and joined in the chase.

Heaton ran through the front doors and out of the Courthouse. As he jumped up the stairs outside of the building he tripped and fell. Heaton got up, he took a few more steps, several deputy sheriffs tackled him from behind. He was taken into custody and handcuffed. H. HEATON’S CRIMINAL RECORD [ 60 ] Heaton’s criminal record commenced when he was 20 years old. There are a total of 34 convictions registered to Heaton commencing on November 18, 2010 until he committed the predicate offences. [ 61 ] The details of his criminal record are as follows: Conviction Date Offence Sentence 2010-Nov-18 Kitchener ON

(1) Theft Under $5000 s.3345(

b) Offence date: 2010-Jul-02

(2) Uttering Forged Document s.368(1) (

a) Offence date: 2010-Sep-14

(3) Break & Enter & Commit s.348(1) (

b) Offence Date: 2010-Sep-14 (#1-3) 90 days intermittent in addition to 66 days’ time served on each charge, concurrent 12 months’ Probation on each charge, concurrent Mandatory Prohibition Order s. 109 (note: intermittent sentence converted to straight time Feb 4, 2011) 2011-Feb-16 Kitchener ON

(1) Possession of Property Obtained by Crime under $5000 s.355(

b) Offence Date: 2010-Dec-30 21 days, concurrent to time serving 2011-Jul-06 Kitchener ON

(1) Fail to comply with Probation Order s. 733.1(1) Offence Date: 2011-May-06 Fine $250

2012-Jan-09 Kitchener ON

(1) Possession of Property Obtained by Crime under $5000 s.355(

b) Offence Date: 2011-Nov-23

(2) Fail to Comply with Probation Order s.733.1(1) Offence Date: 2011-Nov-23

(3) Possess Firearm or Ammunition Contrary to Prohibition Order s.177.01(1) Offence Date: 2011-Nov-23

(4) Theft Under $5000 s.334(

b) Offence Date: 2011-Dec-01

(5) Theft Under $5000 s.334(

b) Offence Date: 2011-Jul-21

(6) Fail to Comply with Recognizance s.145(3) Offence Date: 2011-Dec-01 (#1-6) 2 months & 2 days in addition to 28 days pre-sentence custody on each charge, concurrent 18 months’ Probation on each charge, concurrent 2012-Feb-24 Toronto ON

(1) Theft Under $5000 s.334(

b) Offence Date: 2011-Sep-06

(2) Fail to Attend Court s.145 Offence Date: 2011-Oct-19 (#1-2) 1 day each charge 2012-Jun-19 Woodstock ON

(1) Armed Robbery s.334(

b) Offence Date: 2012-Mar-03

(2) Theft Under $5000 s.334(

b) Offence Date: 2012-Mar-03

(3) Fail to Comply with Probation Order s.733.1(1) Offence Date: 2012-Mar-03

(4) Fail to Comply with Probation Order s.733.1(1) Offence Date: 2012-Mar-03

(5) Possession of Property Obtained By Crime under $5000 s.355(

b) Offence Date: 2012-Mar-03 (#1) 9 months & mandatory weapons Prohibition s.109 (#2) 60 days concurrent (#3-5) Time served (103 days) 18 months’ Probation 2012-Aug-02 Kitchener ON

(1) Theft Under $5000 s.344(

b) Offence Date: 2012-Mar-02

(2) Uttering Threats s.264.1(1)(

a) Offence Date: 2012-Mar-02 (#1-2) 60 days on each charge, consecutive to sentence serving 18 months’ Probation Conviction Date Offence Sentence

2013-Apr-18 Kitchener ON

(1) Theft Under $5000 s.334(

b) Offence Date: 2013-Jan-07

(2) Theft Under $5000 s.334(

b) Offence Date: 2012-Feb-29

(3) Break & Enter to Commit and Commit Theft s.348(1)(

b) Offence Date: 2013-Jan-20

(4) Attempt Break & Enter and Attempt Theft s.348(1)(

b) Offence Date: 2013-Jan-04

(5) Attempt Break & Enter & Attempt Theft s.348(1)(

b) Offence Date: 2013-Jan-04

(6) Attempt Break & Enter & Attempt Theft s.348(1)(

b) Offence Date: 2013-Jan-20

(7) Possess Break In Instruments s.351(1) Offence Date: 2013-Jan-22

(8) Assault s.266 Offence Date: 2013-Jan-22 (#1-8) 45 days custody in addition to 85 days pre-custody on each charge, concurrent 3 years’ Probation 10 year weapons Prohibition s.110 DNA Order (secondary) 2013-Aug-18 Oshawa ON

(1) Break & Enter and Commit s.348(1) (

b) Offence Date: 2013-May-21

(2) Possess Break-in instruments s.351(1) Offence Date: 2013-May-22 (#1-2) 2 months in addition to 4 months pre-sentence custody, concurrent 3 years’ Probation 3 year weapons prohibition s.110 DNA Order (secondary) 2014-Apr-25 Kitchener ON

(1) Breach of Probation s.733.1(1) Offence Date: 2014-Jan-21 to 22 2 days custody in addition to 3 days pre-sentence custody Victim Surcharge $100 2014-May-26

(1) Theft Under $5000 s.334(

b) Offence Date: 2014-May-11 40 days custody in addition to 14 days pre-sentence custody 2014-Oct-28 Hamilton ON

(1) Assault s.266 Offence Date: 2014-May-11

(2) Theft Over $5000 s.334(

a) Offence Date: 2014-May-11 (#1-2) 1 day in addition to 115 days pre-sentence custody, concurrent 2 year Probation concurrent 10 year Weapons Prohibition s.110 DNA Order (secondary) Conviction Date Offence Sentence [ 62 ] Heaton’s criminal record reveals that he was subject to a probation order at the time he committed 30 of his 34 offences.

At the time Heaton committed the predicate offences he was subject to three separate probation orders out of Ontario and was also subject to an outstanding warrant out of Ontario: Transcript, December 13, 2016, p. 33, ll. 29 - 44. [ 63 ] Heaton committed his first offence in July of 2010. At that time he followed an 81-year-old woman out of her bank. As she was walking towards her vehicle he ran up beside her, bumped her side and grabbed her handbag. When he was arrested by the police, Heaton assisted the police in the recovery of the handbag, which he had thrown into a pond.

He later contacted the police inquiring about restitution for the money that he had stolen.

He was charged with theft under $5000. [ 64 ] At the time Heaton was sentenced for the theft under $5000, and two additional offences of uttering a forged document and break and enter with intent, on November 18, 2010, it was noted in the Reasons for Judgment of the Honourable Justice Hardman of the Ontario Court of Justice, Unreported Decision, No. 3850-10 and 4729-10, that Heaton was using alcohol at the age of 14 and was experimenting with drugs when he turned 16. [ 65 ] At the time he committed the offences of theft under, uttering a forged document and break and enter with intent he had acquired a “full-blown” crystal methamphetamine addiction. [ 66 ] Heaton was sentenced as a first offender to a 90 day intermittent jail sentence followed by a 12 month probation order.

On February 4, 2011, the intermittent sentence was converted to straight time.

[ 67 ] On February 16, 2011, Heaton was sentenced to a 21 day jail sentence for possession of stolen property. [ 68 ] On July 6, 2011, Heaton was sentenced to a fine of $250 for failure to comply with a probation order. [ 69 ] In November 2011, Heaton was found driving a motor vehicle with a stolen licence plate. In his pocket was a single shotgun shell. In the vehicle were 14 additional shotgun shells in an ammunition belt under the passenger seat. There was a joint of marijuana in the trunk.

Within days after his release in relation to the stolen license plate, he committed theft of a cell phone and also failed to comply with terms of his release. [ 70 ] On January 9, 2012 he was sentenced to 62 days in addition to the 28 days’ time served to be followed by an 18 month probation order. At the time of sentence, his lawyer submitted that Heaton “had no excuse for anything he was charged with”. Apparently he was not using illicit drugs at that time.

He had, however, been prescribed Effexor and Seroquel but historically was “somewhat reluctant” to stay on his medications and “was somewhat reluctant” to cooperate with his doctors: Crown Written Submissions, at para. 83. [ 71 ] Within three weeks of his release, Heaton was observed stealing some hockey bags, after purchasing a hunting knife from Canadian Tire. When Heaton was approached by a store employee who advised him that he was under arrest for theft, Heaton initially offered to pay for the items, and then repeatedly said, “I will fuckin’ kill you. I will come back and fucking kill you”.

Heaton then fled the scene in a truck. [ 72 ] The following day, Heaton committed a gas and go with the truck at a gas station. Within half an hour Heaton entered a business premise and confronted the owner. Heaton pulled out the hunting knife from a sheath on his hip. Heaton told the owner, “I am not going to hurt you”, and then advanced on the owner who fled, as did Heaton. Heaton was later arrested. [ 73 ] On June 19, 2012, Heaton was sentenced to a jail sentence of nine months for the armed robbery of the owner of the business premise.

Concurrent sentences along with time served were applied to the remaining offences of theft under $5000, failure to comply times two and possession of stolen property.

An 18 month probation order was also imposed which included conditions that he participates in various assessments, treatment and counselling (including substance abuse), anger management, psychological, psychiatric and vocational counselling. [ 74 ] On August 2, 2012, Heaton was sentenced to a total of 120 days consecutive to the nine-month jail sentence relating to the armed robbery, the theft from Canadian Tire of the hockey bags and the uttering of the death threats to the employee. He was also subject to a further 18 month probation order. [ 75 ] On December 18, 2012, Heaton was released from prison.

On January 4, 2013, he attempted to break into a secure area of a phone kiosk in a local mall. Two weeks later he was successful in breaking into several phone kiosks and stole several cell phones. [ 76 ] Several days later Heaton reached into a motor vehicle that was stopped at a traffic light. Heaton tried to grab the driver who was able to drive away. The driver then phoned the police and began to follow Heaton. At one point Heaton confronted the driver asking the driver if he wanted to fight. The police attended and arrested Heaton for assault.

In their search of Heaton the police found a pry-bar, black gloves, a black facemask and a screwdriver. Heaton was detained in custody. [ 77 ] On April 18, 2013, Heaton pled guilty to a total of 8 offences. He was sentenced to a global sentence of 45 days in custody in addition to the 85 days time served.

He also received a three-year probation order. [ 78 ] At the time of sentence Heaton’s lawyer submitted that Heaton was suffering from mental health issues and was grappling with his drug addiction. [ 79 ] On May 21, 2013, four days after his release from custody, Heaton smashed the window of a car dealership with a hammer. He entered and stole a motor vehicle from the dealership.

He was arrested the next day in the stolen vehicle for break and enter and possession of break-in instruments. [ 80 ] On August 18, 2013, Heaton was sentenced to a concurrent two-month sentence in addition to four months’ time served, for the break and enter and possession of break-in instruments. He also received a further three year probation order in relation to both offences. [ 81 ] Between January 21 - 22, 2014, Heaton breached his probation order by failing to report.

On April 25, 2014, he pled guilty and received two days custody along with three days’ time served. [ 82 ] On May 9, 2014, Heaton was apprehended by the police under the Mental Health Act for Ontario. He was involuntarily committed to hospital. He escaped from the hospital that evening, and was re-arrested and recommitted. [ 83 ] On May 11, 2014, Heaton snuck out of a secure area of the hospital. He was confronted by a female nurse. He grabbed her access card from her lanyard and tried to use her access card to exit from a secure door. The nurse tried to stop Heaton.

He punched her in the face. [ 84 ] Heaton managed to escape from the hospital and approached a man walking along the street. Heaton grabbed this man and stole a set of car keys. He used those keys to steal the man’s car. The police managed to apprehend Heaton and he was charged with a series of offences, including theft and assault. Heaton was detained in custody. [ 85 ] On October 20, 2014, Heaton was sentenced to a concurrent sentence of one day for each of the offences and time served of 115 days.

He was placed on a further two-year probation order. [ 86 ] Shortly thereafter Heaton left Ontario for Vancouver, British Columbia. On March 26, 2015, Heaton committed the predicate offences.

I. HEATON’S RESPONSE TO CORRECTIONS (

i) Corrections in Ontario [ 87 ] Heaton’s history of incarceration in Ontario was marked by multiple incidents of assaultive or aggressive behaviour. The history is set out in the Ontario corrections documents: Ex. 6 - 8. [ 88 ] The history can be summarized as follows: • On January 4, 2012, after approximately one month in custody, Heaton was involved in a consensual fight with another inmate.

He was found guilty and was penalized with a loss of privileges and five days of close confinement; • On May 23, 2012, Heaton was assaulted by another inmate; • On January 24, 2013, following his arrest on a number of property-related offences and an assault, Heaton was detained in custody. He challenged all African-Canadian inmates to a fight, and used racial slurs. Heaton then assaulted another inmate. After the incident, staff offered to take Heaton to a local hospital for treatment. Heaton refused to go to the hospital.

He was penalized with a loss of privileges and 10 days of close confinement; • On February 26, 2013, Heaton assaulted another inmate. He was found guilty of assault, although he said that he was defending himself; • On May 23, 2013, while waiting for a bail hearing in relation to a number of property-related offences, Heaton attempted to hang himself in his cell at the courthouse. He was found immediately by courthouse staff and taken to a local hospital for assessment and treatment.

He was put on a suicide watch until May 31, 2013; • After his arrest on May 11, 2014, for property-related offences, Heaton assaulted another inmate in custody on June 6, 2014. He was found guilty and penalized with a suspension of remission for 15 days; • On August 16, 2014, while still in custody, Heaton was put on a suicide watch and placed in segregation; • On August 18, 2014, he was taken off suicide watch. Heaton became belligerent and demanding with corrections staff and demanded that he be moved to a psychiatric unit instead of the general population unit.

Heaton refused to be transferred out of the segregation unit and was verbally abusive to staff. He was found guilty of willfully disobeying an order; and • On September 9, 2014, while en route to court Heaton refused to be handcuffed and yelled that the food at the courthouse was poisoned. Heaton became agitated, used foul language and refused to comply with the demands of staff.

He was found guilty of creating or inciting a disturbance. (ii) Corrections in British Columbia [ 89 ] Heaton’s history of incarceration in British Columbia has been marked by a lack of engagement with fellow inmates and staff, and multiple incidents of unpredictable and unprovoked assaultive behaviour. [ 90 ] The history can be summarized as follows: • Since his arrest, Heaton has been detained at the North Fraser Pretrial Centre (“NFPC”) and the Surrey Pretrial Centre (“SPC”); • At the intake stage at NFPC, every inmate is classified into one of two streams: (1) general population, or, (2) protective custody; • For inmates classified to protective custody, there is also a separate confinement classification which may include a segregation classification; • On March 26, 2015, Heaton was classified to separate confinement; • On May 15, 2015, Heaton escaped from the docket at 222 Main St. and was taken to the ground by one of the sheriffs before he could exit from the main doors of the courthouse; • For the next number of months, Heaton was generally polite and compliant though he did not initiate much interaction with staff.

He did not have a cellmate. On September 19, 2015, Corrections staff attempted to bunk Heaton with a cellmate. Heaton was resistant so the plan was dropped; • Corrections staff transferred Heaton to a living unit with more inmates, but still in a voluntary separate confinement classification. On September 25, 2015, Heaton called Corrections staff telling them that he was fighting with his bunkmate. When Corrections staff attended at the cell they found both Heaton and his cellmate were visibly winded and they had marks on their faces and bodies.

Heaton had his arm around the back of his cellmate’s head, holding him down. Both were charged with and found guilty of fighting; • Heaton was returned to separate confinement; • On October 6, 2015, Heaton was transferred to the medical unit. Within two days he became extremely angry with a fellow inmate in that unit so was returned to separate confinement; • On December 23, 2015, without provocation, Heaton punched a fellow inmate in the head. It took several Corrections officers to

get Heaton under control. Heaton was found guilty of assault and was returned to segregation; • In March 2016, Corrections staff moved Heaton to an isolation unit where he was described as doing well. It was the hope of Corrections staff that Heaton could be encouraged to start the process of preparing to be with other inmates; • On April 14, 2016, Heaton was transferred back to the voluntary separate confinement unit. For several months he initiated limited interactions with fellow inmates and minimal interactions with staff; • On October 27, 2016, Heaton struck another inmate with closed fists multiple times. That inmate was able to restrain Heaton until Corrections staff int

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