R. v. Henneberry, 2011 ONCJ 200

Citation: R. v. Henneberry , 2011 ONCJ 200 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — LEE ALLAN HENNEBERRY Before Justice D.P. Cole Heard on March 28, 2011 Reasons for Judgment released on April 7, 2011 S. Hobson ................................................................................................................ for the Crown D. Lenzin ............................................................................................................... for the accused COLE J. ( orally): [ 1 ] On December 6, 2010, Mr.

Henneberry pleaded guilty to two counts of Assault, one count of Assault Causing Bodily Harm, and one count of Mischief Under $5,000. Based on Mr. Henneberry’s criminal record, the Crown seeks an order pursuant to s. 752.1 of the Criminal Code , remanding the Respondent for an assessment. [ 2 ] At this stage, the Court stands in the role of a gatekeeper to ensure that the requirements of s. 752.1 have been met before the dangerous and long-term offender provisions are engaged ( R. v. Vanderwal , 2010 ONSC 265 , at para 29 ).

The requirements are as follows: 752.1(1) “… the court is of the opinion that there are reasonable grounds to believe that an offender who is convicted of a serious personal injury offence or an offence referred to in paragraph 753.1(2)(

a) might be found to be a dangerous offender under

section 753 or a long-term offender under

section 753.1…” [ 3 ] This has two requirements. First, the offender must be convicted of a “serious personal injury offence”, a defined term in the Criminal Code , or an offence referred to in paragraph 753.1(2) (a). This requirement is met in this case by the conviction for Assault Causing Bodily Harm. The second requirement relates to the likelihood that a dangerous offender or long-term offender designation might be ordered. Where an offender might be found to be either, an assessment must be ordered and both possibilities should be considered ( R. v.

Fulton, 2006 SKCA 115 ). [ 4 ] In support of the application, Crown counsel sought to cross what has been termed “the past-conduct threshold” ( R. v. Warawa , 2010 ABPC 336 at para. 121 ), by demonstrating that Mr. Henneberry’s criminal history represents “a pattern of repetitive behaviour” within the meaning of s.753(1)(a)(

i) of the Code . That

section requires some evidence of four elements: 1. A pattern of repetitive behaviour; 2. The predicate offence must form part of that pattern; 3. That pattern must show a failure by the offender to restrain his or her behaviour in the past; and 4. That pattern must show a likelihood of death, injury or severe psychological damage to other persons through failure to restrain his or her behaviour in the future ( R. v. Warawa , supra, para. 120 ). [ 5 ] Mr. Henneberry’s criminal record, including the three most recent convictions, contains 7 convictions for assault and 3 convictions for assault causing bodily harm.

The Crown points to the common thread being that they are all “domestically related”. Of these 10 convictions, all but one (in 1992) involve family members as victims. Courts have established that the greater the similarity, the more likely a “pattern” will be found ( R. v. Smyth , [2007] O.J. No. 1946, at paras 61-64 ). Similarity can be found in the types of offences or in the circumstances.

In this case, from the materials contained in the Crown’s application record, both the offences and their circumstances are very similar. [ 6 ] Defence counsel stresses that the 7 year gap between his 2003 convictions and his current convictions suggests that Mr.

Henneberry has the ability to restrain his behaviour since this is a significant period of time with no offences in the pattern. Further, his conviction free period from 2000 to 2003 is also significant. I agree that ultimately this may well be the biggest shortcoming in the Crown’s application. However, the high degree of similarity of these new offences to his earlier offences is relevant here. He has been incarcerated for these earlier offences and it seems that he has not learned to restrain his behaviour in this context.

Over his years in the system, he has taken certain classes or steps that were meant to teach him how to control his behaviour – based on his most recent convictions it unfortunately seems that he really has not benefited or learned very much from these measures. It should also be noted that Mr. Henneberry’s record includes convictions for not abiding by court orders which suggests an inability to restrain his behaviour when required to do so. Further, the conviction free period from 2000 to 2003 was based largely on his steady employment.

It is not clear why there was a conviction free period from 2003 to 2009 and whether the conditions that contributed to it will be lasting. A more detailed assessment would help explain his criminal behaviour. [ 7 ] In my judgment, there are reasonable grounds to believe that a pattern could be established and that the predicate offence forms part of the pattern. [ 8 ] With respect to the likelihood of causing death, injury or severe psychological damage to other persons, his criminal record contains 3 convictions for assault causing bodily harm.

His 2003 conviction for this offence involved slapping a 6 year old child in the mouth and knocking out his two front teeth. His most recent conviction for that offence involved an attack on the same child with a broom stick – Mr. Henneberry struck the child on his head resulting in a cut to his ear. His most recent Assault conviction resulted in the victim, his common-law spouse, being knocked unconscious. It is clear that there is the potential for injury to his family members.

The reasons for sentencing in his 2003 conviction considered the relevant sentencing principles but ultimately decided that “it is the protection of the public which is more important than other principles.” This resulted in a 12 month sentence. In this context, “likelihood” means “more probable than not” ( R. v. Vanderwal , supra, para. 48 ). Mr. Henneberry was assessed at a 76% probability of violent recidivism within 7 years and an 82% probability within 10 years.

He was ordered to attend anger management classes in 2004 but failed to complete the program. [ 9 ] As I evaluate and apply the case law, it is worth noting at the outset that there is general agreement that there is a low threshold for the Crown to cross at this stage. The precise standard of “reasonable grounds to believe” in s. 752.1 has been considered in a number of cases. In R. v.

Naess , Justice Hill reviewed a number of cases and stated, “I am inclined to the view that s. 752.1(1) obliges the court, on the totality of the circumstances, to determine whether reasonable grounds exist, in the sense of a real possibility the accused will be found to be a dangerous offender” ( R. v. Naess, [2005] O.J. No. 936, at para 77 ) . Justice Wilson articulated a slightly lower threshold in R. v. Torres and stated: “Section 752(1) requires only that there be reasonable grounds to believe that the offender might , not will , be found to be a dangerous offender under

section 753 or a long-term offender under

section 753.1” ( R. v. Torres, [2007] O.J. No.1402, at para 27 ; emphasis in original). Justice Wilson also stated, “Consistently it has been held that the threshold is a low one” (at para. 21). The Saskatchewan Court of Appeal described the process as follows: “section 752.1 does not call upon the court to consider whether the offender will probably be found, or is likely to be found, a dangerous or long-term offender.

It does no more than call upon the court to consider whether there exists reasonable grounds to believe the offender might be found to be a dangerous or long-term offender; and it does so for no other purpose than that of deciding whether to order an assessment. The word “might” speaks to possibilities: Is the prospect of the offender being found to be a dangerous or long-term offender within the realm of possibility or beyond it?” ( R. v. Fulton , 2006 SKCA 115 , at para 21 . This case has also been cited in Ontario: See R. v. Jones , [2007] O.J.

No. 1591, at para 20 .) [ 10 ] The language used by judges may differ, but it is clear the threshold is a low one. Recently, Roccamo J. stated: “Despite the different language employed by these courts, I am not convinced that, at the end of the day, there is any material difference in the analysis required of an application judge in this instance. It is universally agreed that the threshold is a low one. It is less than the civil burden of proof and far less than the criminal burden of proof. The language in

section 752 requires the court to consider the totality of the record of evidence and information in support of the application to decide whether there are reasonable grounds to believe the offender might , not will, be found a dangerous offender or a long-term offender .” ( R. v. Vanderwal , supra, para. 27 ). [ 11 ] A counterpoint to this low threshold approach can be found in R. v. P.H. [2005] O.J. No. 5698, at para 32 . where Justice Nordheimer declined to order an assessment and stated: “I accept the Crown’s point that the threshold for obtaining an assessment order is not a high one.

At the same time, however, the threshold ought not to be placed so low that it will result in an assessment order being made in virtually any case where the underlying offences are disturbing or upsetting”. That case involved a 19 year old offender and Justice Nordheimer was concerned with applying these provisions to him: “in the case of a young person, special care ought to be taken before the gates are opened to such applications” (para. 34). These concerns are obviously not present in this case. [ 12 ] I thus conclude that at this stage of the proceedings there are reasonable grounds to believe that Mr.

Henneberry might be found to be a dangerous offender. [ 13 ] The final basis alleged by the Crown is the long-term offender provision in s. 753.1 of the Code . In order to establish that Mr. Henneberry is a long-term offender, a three-part test must be met: (

a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted; (

b) there is a substantial risk that the offender will reoffend; and (

c) there is a reasonable possibility of eventual control of the risk in the community. [ 14 ] With respect to the two year sentence requirement, it is likely that this could be met. His most recent sentence in 2003 for Assault Causing Bodily Harm resulted in a 12 month sentence and 2 years of probation. His current conviction involved an attack on a child with a broomstick resulting in a scar on the victim’s ear. This is his third Assault Causing Bodily Harm conviction. Before these most recent convictions, he had 14 convictions on his criminal record. Without getting into too much detail with respect to mitigating and

aggravating factors, I think that a two year sentence could be appropriate for the predicate offence in this case. (I keep in mind that inconsidering this factor, I am to discount the possibility of a reduction in the sentence ultimately imposed due to pre-sentence custodycredit). [15] With respect to the second requirement, “substantial risk”, none of the presumptions of “substantial risk” in s. 753.1(2) ofthe Code are met in this case (R. v. Weasel, 2003 SKCA 131, R. v. McLean, 2009 NSCA 1, clarify that this

section is not an exhaustivedefinition of “substantial risk” but merely creates presumptions). However, based on his criminal record and his failure to completetreatment programs, it is likely that a substantial risk could be made out. The analysis here overlaps with the dangerous offender analysisabove. His Psychological Assessment Report from 2004 indicates that he has a 76% probability of violent recidivism within 7 years andan 82% probability within 10 years.

This is described as a “high to very high level of risk for violent re-offending.” A report from theDomestic Violence Program indicates that “the offender embraced continued criminal behaviour as a right to make a living as hechooses.” The offender did not complete this Domestic Violence Program before he was released. To his credit, the Domestic ViolenceProgram report also stated that “Mr. Henneberry appeared to understand the concepts as they were presented, and did appear motivatedto make changes in his domestic violence behaviour.” However, this was in 2004, before his most recent convictions. [16] In R. v.

P.H., Justice Nordheimer declined to order a s. 752.1 assessment because the substantial risk requirement was notmet. This case advocates for a narrow construction of the long-term offender provisions, even at the assessment stage (paras. 22-25). Inthat case, the offender was at a high risk for general reoffending and a moderate risk for violent reoffending. However, there was astrong focus on the fact that the offender was a young person and had a potential for rehabilitation. Further, the risk for violentreoffending in Mr.

Henneberry’s assessment was found to be “high to very high” not moderate. [17] As pointed out by defence counsel, Mr. Henneberry’s likelihood of being controlled in the community is likely quite a bithigher than most offenders subject to this sort of application. None of the reports recommended an indefinite period of imprisonment butinstead focussed on various types of treatment.

His Psychological Assessment Report stated, “Despite this noted risk to re-offend, thisresident presents with some risk factors which may be open to change and if addressed, may help lower his risk to revisit his offencecycle.” However, in the reasons for sentencing for his 2003 conviction, protection of the public was the most important concern of thatjudge. This discussion is, however, not important at this stage since it focuses on whether the offender should be considered a long-termoffender instead of a dangerous offender. It is more appropriately explored after an assessment has been made.

However, as Crowncounsel candidly concedes it is likely that the long-term offender designation is more appropriate at this stage. [18] The principle of restraint means that the dangerous offender designation is reserved for the “most serious crimescommitted by the worst offenders” (R. v. Blackwood, 2010 ONSC 6178, at para 40, also: R. v. Naess, (2005) 64 W.C.B. (2d) 278 at para80). With this in mind, these convictions do not appear to be serious enough to meet the dangerous offender or long-term offenderprovisions. In fact, of all the cases I have reviewed, these offences appeared to be least serious.

I note that a s. 752.1 order was recentlymade in R. v. Blackwood (R. v. Blackwood, 2010 ONSC 6178) on the basis of a record that involved mostly assault charges.[1] However, appellate decisions indicate that there is no objective seriousness requirement for a dangerous offender finding (R. v. H.(M.B.), (ON CA), 186 C.C.C. (3d) 62, R. v. Currie, (SCC), [1997] S.C.J. No. 10). The Court of Appealand Supreme Court of Canada have directed courts, in deciding applications of this kind, to focus on the specific statutory requirementsof the dangerous offender provisions found in the Code (R. v.

Roberts, 2007 OCA 64, R. v. H.(M.B.), 186 C.C.C. (3d) 62, R. v. Currie,[1997] S.C.J. No. 10). For Mr. Henneberry, the long-term offender provisions are likely more appropriate than the dangerous offenderprovisions, although that is not necessary to decide at this stage. In my opinion, the requirements are met at this stage of the application. Released: April 7, 2011 Signed: “Justice D.P. Cole”