r v. Normand, 2013 QCCQ 583

Official English Translation R. c. Faille 2013 QCCQ 583 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Criminal and Penal Division Nos.: 500-01-070805-129 500-01-070806-127 DATE: January 18, 2013 ______________________________________________________________________ PRESIDING : THE HONOURABLE HÉLÈNE MORIN, J.C.Q. ______________________________________________________________________ THE QUEEN Applicant - Prosecutor v.

Normand FAILLE Respondent - Accused ______________________________________________________________________ RULING ON THE APPLICATION FOR FINDING THAT THE RESPONDENT-ACCUSED IS A DANGEROUS OFFENDER (s. 753 Criminal Code ) ______________________________________________________________________ [ 1 ] Following the respondent's guilty pleas on charges of intimidation of justice system participants, an order of remand for assessment [1] was made and the prosecution filed an application for finding that Normand Faille is a dangerous offender. [ 2 ] According to the defence, the accused suffers from intermittent explosive disorder, 2 which can be controlled with specific medication.

Counsel for Normand Faille further submits that the preventive detention 3 that has been served to date is sufficient and probation with strict conditions would meet the sentencing objectives set out under sections 718 Cr. C . and following. The facts giving rise to the charges [ 3 ] In anticipation of Normand Faille's release from the Drummondville penitentiary, on June 1, 2011, upon the legal expiration of his sentence, he had a meeting scheduled for May 29, 2011, with an officer from the detention centre. By the time this preparatory meeting took place, Faille had already undertaken to sign an order under

section 810.2. 4 [ 4 ] A reading of the accused's lengthy criminal record involving violent offences indicates that the signing of this type of order was undoubtedly justified. [ 5 ] When the prison representative asked him whether the order would enjoin him to report to police officers, Faille's attitude changed abruptly. He claimed to hate Sûreté du Québec police officers and that he would do away with some of them if they decided to show up at his house once he was out of prison.

He added that once his mother was no longer around, he would go to a police station, armed and with a bomb no less, and cause bloodshed. [ 6 ] This was not the first time that he had threatened to lash out at police officers. Indeed, he had previously shot at officers responding to a call by a person whom the respondent had robbed and then locked in the trunk of his car. The officers reacted by shooting him in the leg. In December of 1991, he received a seven-year penitentiary sentence for a series of offences related to this event. [ 7 ] Not surprisingly, a complaint was filed.

He was arrested on July 15, 2011, after one and a half month at large. He was brought to the Drummondville courthouse, where the bail hearing was held on July 19, 2011. Everything was going smoothly until the judge began to render his decision. Faille then understood that his detention would be ordered and he exploded. [ 8 ] His mother, who was there for the hearing, repeatedly asked him to calm down. A special constable then moved toward her. Faille began to swear at the special constable, calling her a [ translation ] “bitch” and ordering her not to touch his mother. Addressing the

Crown prosecutor while hitting the glass with his handcuffs, he claimed to be ready to [ translation ] “go to war”. He reproached her for wanting to put him back in the penitentiary and literally cried out: [ translation ] “Who wants to die tonight...?” He added: [ translation ] “You, you bitch, you haven't seen the last of me.” [ 9 ] Another woman, who seemed to have a close relationship with him since she called him [ translation ] "baby", pleaded with him to get a hold of himself.

Nothing could be done, however; he answered that there was no more [ translation ] "baby" and that he was [ translation ] “going to war”. [ 10 ] When the judge had him removed, Faille violently hit the walls and the glass after telling the judge that he did not hold it against him, but that he was [ translation ] “sick and tired of being in jail”. He said that he had 26 years of penitentiary under his belt and that he [ translation ] “was fed up”. He begged Justice Pierre Bachand.

He felt that it was unfair that he was not being given a chance to set himself straight because he was always being arrested. [ 11 ] His counsel had previously indicated that his arrest had gone smoothly and that he had not breached any conditions of release for the month and a half during which he had been at large, from June 1 to July 15, 2011. [ 12 ] Detained since July 15, 2011, the accused pleaded guilty on April 13, 2012.

On that occasion, the prosecution filed his criminal record and the audio tape of the hearing held before Justice Bachand. [ 13 ] On October 31, 2012, the prosecution filed its application for finding that the accused is a dangerous offender. A 38-page report by psychologist Eric Morrissette of the Forensic Psychology and Psychiatry Department of the Institut universitaire en santé mentale de Québec was filed with the application, along with a 13-page memorandum issued by Correctional Services dated January 10, 2011. A table outlining the lengthy criminal record of the accused was also included.

Testimony of Eric Morrissette [ 14 ] Dr. Morrissette met with Normand Faille for a total of seven and a half hours. He consulted no less than 23 different sources of information, the oldest of which is a psychiatric evaluation performed by Dr. Alfred Thibault from the Federal Training Centre, dated July 11, 1989. Faille was 20 years old at the time and since January had been serving his first penitentiary sentence, which was for 4 years for aggravated sexual assault and death threats. [ 15 ] The other sources of information are from various evaluations and reports written during the accused's prison life.

Morrissette also took cognizance of the psychiatric evaluation prepared by Dr. Pierre Gagné, who testified at trial for the defence. [ 16 ] Morrissette finds that all this paints a most unfavourable picture and that the accused requires very close supervision over an extended period of time. In his view, declaring the offender a dangerous offender is the best solution. [ 17 ] He notes that past release s ended in failure and that the accused rejects any form of external supervision, which makes any hope of neutralizing the risk within the community illusory. [ 18 ] To him, the following are key factors .

Faille is 44 years old and a bachelor without children. He lives with his mother in the family home in Ste-Clothilde. Due to his limited intellectual abilities, he has little education and completed primary school in special education classes. More than once, he has had to repeat a year. The school authorities concluded that he was a hyperactive child with an aggression and behavioural disorder. Labelled as unteachable, he has no diplomas.

He has spent the better part of his adult life inside a penitentiary as a result of his numerous convictions, which are all for violent offences. [ 19 ] From 14 to 20 years old, he worked on the land with his father making pallets . He was a good worker. Since he turned 20, however, he has been unable to find steady employment because of his numerous periods of incarceration. [ 20 ] Today, he has no interest in looking for employment and is unable to identify the type of work he would like to do.

Faille adds that he will cross that bridge when he comes to it. [ 21 ] His only plan is to work on himself so that he can identify the root of his violence. When Morrissette asked him how he would do this, Faille answered that he will see a doctor once a month to talk about his past. [ 22 ] The rest of the time, he plans to spend time with his friends and help his mother. Welfare and his mother will cover his financial needs. [ 23 ] He has only one childhood friend, whom he sees when he is out of jail. [ 24 ] He has had a few girlfriends, two of whom were serious.

He married one of them while he was in prison and although the marriage lasted one and a half year, it ended one and a half month after his release. Apparently, he could not drink and meet up with friends as he wished. During a fight, he lost his senses and pointed a firearm at his wife. [ 25 ] He allegedly began drinking at the age of 14. He claims that at the time, he would drink 6 beers a day and regularly get drunk.

As an adult, when not in prison, he would drink 12 to 24 beers a day, but that never lasted long since he was always quickly sent back to jail. [ 26 ] Faille told the psychologist and repeated before the Court that, during his last period out of prison, which lasted one and a half month, he did not consume any alcohol because he wanted at all costs to comply with his conditions. It is of note, however, that he told psychiatrist Pierre Gagné that he consumed cocaine two or three weeks after his release from prison in June of 2011.

[ 27 ] While he told the psychologist that he intended to start consuming moderately again, that is, six beers a day, his testimony reveals that, on the contrary, he has no intention of beginning to drink again.

In fact, he does not believe that he has a problem with alcohol consumption. [ 28 ] Faille maintains that his problem is violence, not alcohol, although Correctional Services believe that he is likely an alcoholic because every time he has been arrested, he has been highly intoxicated. [ 29 ] His intoxicated state was caused not only by alcohol, but also by cocaine, which he has been using since his early twenties. Yet, he claims that he does not need therapy.

While he denies that he is addicted, he does admit that the drug causes him problems, since he cannot remember what he has done when he takes it. [ 30 ] According to Faille, his willingness to stop consuming substances will, in and of itself, prevent any future problems. He does not believe that therapy is beneficial in a prison environment. Discussion of Faille's criminal record [ 31 ] A few pages of Morrissette's report discuss Faille's version of his numerous violent offences.

To summarize, these pages reveal that in some cases, he does not remember the facts, while in others, he tries to justify himself or claims that he was falsely accused and convicted. [ 32 ] In his view, several of his victims were seeking to avenge themselves by falsely accusing him when he had done nothing wrong. Consequently, it has never crossed his mind that he may have caused them harm. [ 33 ] He feels that the justice system is worthless and that the authorities have never done anything to help him.

He believes that, on the contrary, they have contributed over time to making him worse than he was in the beginning and that all the therapy he received in prison was unsuccessful. He considers that he did not learn anything but says that he is convinced that the doctor that he will see once he is released will be the right one. According to the accused, prison specialists are there only to produce negative reports. [ 34 ] As for the latest charges, he told Morrissette that he pleaded guilty to the charges of threatening police officers to get rid of the case but that he had not really done anything.

As for his presence in Court, he acknowledges that he had an outburst because he was fed up with prison and he just could not help himself. His memories of the event are fuzzy, however, and he does not think that he made any threats. [ 35 ] Faille does believe, however, that he turned over a new leaf in December of 2011, when psychiatrist Pierre Gagné prescribed him a drug, the name of which he does not know. Apparently, he no longer reacts aggressively. Although the medication does not prevent him from feeling anger, he feels exhausted, which renders him incapable of reacting.

He recognizes that he hit an inmate in Rivière-des-Prairies but that was because the inmate in question had cheated in a card game. [ 36 ] He was placed in segregation for five days as a result of this attack. Despite everything, he views this scuffle in a positive light because he believes that in the past he would have beaten the inmate until he was unconscious. [ 37 ] Although the Court will not list all of the events, it notes that Faille was the subject of several reports during his prison stays and was often placed in segregation for aggressive behaviour directed at both inmates and staff.

Previous psychiatric and psychological evaluations [ 38 ] Morrissette consulted three psychiatric evaluations conducted in prison: two by Dr. Alfred Thibault and the most recent by Dr. Pierre Gagné, who testified. I will discuss this later. [ 39 ] In Dr. Thibault's view, Faille is a man with [ translation ] “limited intellectual abilities and primitive integration of thought, whose inner processes are governed exclusively by the pleasure principle. His control mechanisms are absent and aggression is clearly predominant in his psychic economy” .

In addition, he is a man with an immature personality and significant alcohol consumption issues, as well as mild mental retardation. [ 40 ] In his report, Morrissette also summarized five psychological evaluations conducted over the years. The most recent, dated April of 2010, is signed by Louise Dauphinais, who knew Faille well since she had begun following him in 2009. She had previously met him in 2004, at which time she wrote that, in her opinion, Faille was a man who presented with significant behavioural disorders. His crimes were all violent and all against people.

He cast himself as the victim and had no capacity whatsoever for self-criticism. She was of the opinion that he needed close supervision, which, unfortunately, his environment would not be able to provide. [ 41 ] It must be acknowledged, however, that the situation was different in 2010. Dauphinais met Faille a dozen times between October of 2009 and April of 2010. She noted that although he was able to acknowledge his violent behaviour, he still had a tendency to minimize it. She spoke of his good cooperation in the aftercare and of an attitude that was more conformist than in the past.

He was more capable of making the appropriate connections between his aggressive behaviour and its negative consequences. [ 42 ] Yet he continued to have a simplistic and reductive view of his issues. He remained convinced that with some good will, he could contain his fits of anger or maintain moderate consumption of substances. [ 43 ] From all the material available to Morrissette, we must conclude that Dauphinais' report is the only one that suggests any positive change whatsoever. It is Morrissette's view, however, in light of the conversations he held with Faille, that Faille's abilities have decreased.

[ 44 ] During his many years of incarceration, Faille had access to a great number of programmes and aftercare. In some instances, he was so obsessed with thoughts of a quick release that introspection was impossible . In other cases, his intellectual deficiencies or passivity stood in the way of any progress. [ 45 ] Morrissette subjected Faille to many tests that suggest that Faille presents a high risk of re-offending violently.

His lack of introspection, his entrenched perceptions of the justice system, his impulsiveness, and his resistance to any form of treatment except for the one he suggests are as many clinical factors that lead to this conclusion. [ 46 ] In fact, this high risk of re-offending is what motivated prison authorities to keep him in prison until the last sentences expired, since every time he had been released, he had ended up breaching his conditions, being illegally at large, or committing new offences. [ 47 ] Faille's modus operandi flows from [ translation ] “an impulsive and bad-tempered personality lacking in self-control, and from superficial, basic emotions and an attitude showing a lack of accountability, coupled with an absence of remorse or guilt.

His vulnerabilities are exacerbated by his limited intellect and alcohol consumption problem”. [ 48 ] Morrissette acknowledges that during his last period of release, Faille appeared to comply with his conditions. In his view, however, that was a very brief period of time that cannot ground a conclusion one way or another. [ 49 ] In his view, the new medication prescribed in December of 2011, which Faille sees as the magical solution, provides a false sense of security. Only long-term therapy focused on behaviour rather than mentalization has the potential to change his personality structure in any way.

This aftercare would have to be individual and be closely supervised. The memo issued by Correctional Services [ 50 ] In anticipation of Faille's release from the penitentiary in June of 2011, a committee evaluated the threat and risk his release represented to the community. They were also charged with determining the relevance of laying an information under

section 810.2. [ 51 ] In January of 2011, the committee concluded that such an information should be laid for the protection of society since there were reasonable grounds to fear that persons would be victims of serious injuries. This is the order referred to in paragraph 3 of this judgment. Faille had been subject to such an order once before, in 2007, when he was incarcerated after committing a new crime. [ 52 ] The memorandum not only sets out Faille's past offences, but also explains in detail the facts underlying each of them.

Although I will not cite them here, it is clear that each conviction was justified and that Faille has no basis to claim that he is a victim of the justice system. [ 53 ] The committee pointed out that the accused’s criminal behaviour was closely connected to his impulsiveness, his low threshold of tolerance for frustration, and his refusal to accept that his wants and needs cannot always be immediately met. [ 54 ] Ann-Andrée Caron, a parole officer who participated in the drafting of this memorandum, had a conversation with Dauphinais on the subject.

In January of 2011, Dauphinais no longer saw the relevance of continuing aftercare since Faille's capacity for introspection remained limited. He was continuing to manage his interpersonal conflicts more appropriately, and he had learned to take a step back and go calm himself down in his cell rather than react on the spot.

He also understood that he had to beware of alcohol. [ 55 ] Dauphinais added that Faille was increasingly capable of self-criticism when he felt secure, that he appeared to have matured, and that he was beginning to admit that alcohol was a problem. [ 56 ] In light of his significant criminal history of violent offences, the seriousness of his crimes committed with firearms, knives, shovels or baseball bats, the absence of significant change with respect to risk factors, and his failures when released on parole or on statutory release, the members of the committee were of the opinion that there was a considerable risk that Faille would once again commit crimes of the same nature, even after his sentence expired.

Testimony of psychiatrist Pierre Gagné [ 57 ] Dr. Gagné met Faille on December 11, 2011. He had access to essentially the same documentation as Morrissette. Although his report is brief – his clinical impression is stated in two paragraphs – it has the merit of being clear and to the point. [ 58 ] In his view, the accused suffers from an intermittent explosive disorder that manifests through short outbursts of anger that occur without warning.

Gagné listened to the recording of the hearing before Justice Bachand and there is no question in his mind that this is a typical example of this disorder, with which he has been medically diagnosed.

The fact that the accused alleges that he does not remember certain parts of these angry outbursts after the fact tends to support this diagnosis. [ 59 ] Nevertheless, a reading of the memo issued by Correctional Services reveals that several of the behaviours that have brought Faille before the courts cannot be characterized as unexpected outbursts of violence. [ 60 ] Nothing in Faille's prison record indicates that a pharmaceutical approach was tried before.

In Gagné's opinion, the prison environment failed to diagnose the recurring impulse control disorder. [ 61 ] In his view, to reduce risks, there needed to be a trial run with Epival, which he therefore prescribed for Faille. The accused has been taking this drug since December of 2011 and the results appear to be satisfactory. The psychiatrist believes that Seroquel could be added.

This drug is recognized to help people like Faille control their impulse disorders. [ 62 ] In December of 2011, Gagné was of the view that it would be preferable to begin the Epival treatment under medical supervision while the accused was in prison.

[ 63 ] In his view, Faille is motivated to fix his problem. On the subject of his alcohol consumption – because Faille reported drinking twelve beers a day when he was free, which increased his aggressiveness – Dr. Gagné suggests that Faille take Antabuse, a small pill that Faille could take on a daily basis that increases the unpleasant effects of alcohol to the point of making the person sick and taking away any desire to drink. Testimony of Normand Faille [ 64 ] Faille testified that he had been taking Epival for seven or eight months at a dosage of two pills a day.

He has never taken any other medication. [ 65 ] He explained that before, when he had an episode, he would black out and could not hear people speaking to him. Today, he is calmer, his mood swings are less severe, and if he does experience an outburst, he retreats rather than advances to attack. [ 66 ] He no longer wants to consume alcohol or cocaine. During his most recent period of freedom, from June 1 to July 15, 2011, he took care of his mother, which he intends to continue doing.

He went hunting and fishing with a friend with whom he spent his days when he was not running errands with his mother. [ 67 ] He is ready to comply with every requirement of therapy with a psychologist in Greenfield Park to whom Dr. Gagné has referred him.

He is also open to entering a therapeutic programme in Châteauguay at the AVIF (Action sur la violence et Intervention familiale) [Action on violence and family interventions]. [ 68 ] The director general of this centre, Nicholas Renault, has confirmed in a letter filed under exhibit R-6D that workers are ready to meet with Faille to assess his motivation, the realism of his approach, and his capacity to attend either individual or group therapy. [ 69 ] They have been informed of his particularities, intellectual limitations, criminal record, and diagnosis.

The fact that his behaviour has stabilized through medication is, in their view, an essential element to undergoing treatment in their centre. Analysis [ 70 ] The position of the defence is based on a recent decision by the Court of Appeal of Quebec, Anglehart v. R. , 5 in which the Court found that a review of case law revealed that the offence of intimidating a justice system participant does not necessarily carry a prison sentence, but that when it does, it generally should not exceed 36 months.

In that case, the Court reduced to 18 months the 4-year sentence imposed in first instance. [ 71 ] Although the situations of Anglehart and the respondent are at first glance similar, both having had nearly identical experiences in prison, the differences are significant. The first difference is that Anglehart immediately sent a short letter of apology to the threatened custodial officer. [ 72 ] Faille long denied having made any threats against police officers.

Furthermore, it cannot be alleged that the threats were made while he was at the mercy of his intermittent explosive disorder, which rendered him unable to remember them, because the threats were uttered during a preparatory meeting with an officer, which was not likely to cause Faille any particular stress. [ 73 ] Anglehart's behaviour was explained by the fact that he had been deprived of the medication that allowed him to control his anxiety.

Faille's behaviour is explained by the lack of medication to control his outbursts of anger and violence. [ 74 ] Though Anglehart had previously been accused of assaulting police officers, he had never shot at them. While many may admit to hating the police, few actually follow through on their threats. Faille's hatred ran deep, and he did not hesitate to shoot at the officers who were arresting him for very serious offences. [ 75 ] Moreover, he has reiterated that he would not hesitate to do it again if police officers showed up at his home.

Adding that he will cause bloodshed after his mother dies may be considered bravado, but it shows that he has spent time calmly thinking this through and may even still be thinking about it. He has also thought of postponing the moment of carrying out his threats to spare his mother. [ 76 ] During the hearing, the respondent remained very calm, and I am convinced that the medication is working. Sometimes, he even appeared slightly dazed, meaning that his intellectual capacities were obviously affected by some substance. [ 77 ] Of all the case law submitted in support of the prosecution's application, R. v.

Y.S. presents striking similarities to the one before us. In that case, the Court 6 granted the prosecution's application for finding that the accused is a long-term offender. Unfortunately, I have not had the chance to ask the parties how Faille's case differs from that of Y.S., especially since the prosecution's expert in that case was the same Dr. Gagné as the one who testified for Faille. The parties themselves did not make any submissions in this respect. [ 78 ] In that case, the accused pleaded guilty to a charge of uttering threats against two persons.

In a second file, he pleaded guilty to two other charges of uttering threats against four police officers and to one charge of aggravated assault following his use of a crowbar to smash the door of a police cruiser. At the hearing, he threatened the Crown prosecutor as well as two police officers that had been called to testify.

Thus, he was accused, as in the case of Faille, of uttering threats against justice system participants. [ 79 ] Y.S. had a criminal record spanning over 20 years that included a great number of convictions for offences with a violent component. [ 80 ] The psychiatric evaluation prepared by the same Dr. Gagné showed that Y.S. was a man whose intelligence was at the low end of the spectrum. He was intellectually slow and presented with antisocial personality traits. He had little capacity for self-criticism, his judgment was deficient, and he was incapable of controlling his comments in situations he did not like.

During an interview, he

acknowledged that he had anger and behavioural issues and said that he wanted to get help. [ 81 ] Y.S. displayed persecutory elements that had led him to assault the police officers verbally or physically. According to the expert's conclusion, Y.S. presented a risk of re-offending, but there was a real possibility that this risk could be controlled in the community by, inter alia , taking the appropriate medication for his medical and psychiatric condition. [ 82 ] Dr.

Gagné recommended that he follow programmes to help him manage his frustrations in ways other than threats and therapy to correct his cognitive disorders, particularly his perception of being a victim when interacting with police officers. [ 83 ] The psychiatrist was of the opinion that, left to his own devices and with no controls, Y.S. would not seek help or continue to receive the help he needs, and that was why he recommended that he be designated a long-term offender. [ 84 ] With respect, this conclusion is precisely what is required with respect to Normand Faille.

The medication he has been taking since December of 2011 appears to be the determinative factor in this case. According to the evidence, since he has been taking this medication – that is, in the last year – only one incident has taken place in prison.

But we cannot rely merely on the respondent's word to ensure that he will take the medication regularly and that everything will go smoothly. [ 85 ] Even though the conditions to have Normand Faille declared a dangerous offender have been met, I find that there is a real possibility that the risk that he represents can be controlled in the community and brought down to an acceptable level by applying the provisions set out for long-term offenders. The evidence adduced supports such a conclusion, which does not constitute wishful thinking. 7 DECISION THEREFORE, in compliance with subsection 5 of

section 753 of the Criminal Code , the prosecution's application is considered to be an application to find the offender to be a long-term offender, and he is thus declared to be a long-term offender. Normand Faille is ordered to serve an overall sentence of two years' imprisonment, less the period spent in preventive detention since July 15, 2011: in file 500-01-070805-129, two years of imprisonment on the only count in the indictment, and in file 500-01-070806-127, two years on each of the two counts in the indictment to be served concurrently and concurrent to the preceding file.

It is ordered that, following this period of detention, Normand Faille be subject to supervision in the community in accordance with the Corrections and Conditional Release Act for a period of five years. It is further ordered that the reports by the psychologist and the psychiatrist who testified be given to Correctional Services Canada. Normand Faille is prohibited from having weapons in his possession for the rest of his life, and he is ordered to give blood samples for the purpose of DNA testing. __________________________________ HÉLÈNE MORIN, J.C.Q.

Mtre Jean Caron For the Director of Criminal and Penal Prosecutions Mtre Rita Magloe Francis For the Respondent - Accused