R. v. Cragg, 2018 BCPC 134

Citation: R. v. Cragg 2018 BCPC 134 Date: 20180514 File Nos: 40035-C-2 (Prince George); 92826-1 (Port Coquitlam); 94110-1 (Port Coquitlam) Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. CODY ALLAN CRAGG REASONS FOR JUDGMENT OF THE HONOURABLE ASSOCIATE CHIEF JUDGE M. GILLESPIE Counsel for the Crown: Anne Baines Counsel for the Defendant: Nils Preshaw Place of Hearing: Prince George , B.C. Date of Hearing: May 15, 17, 18, 2017; July 13, 2017; February 26-28, 2018; March 1, 5, 6, 2018 Date of Judgment: May 14, 2018 1. INTRODUCTION

[ 1 ] On April 28, 2014, Mr. Cragg plead guilty to the indictable offence of arson by intentionally or recklessly causing damage by fire to the residence of Don Callaghan on April 26, 2014, contrary to s. 433 (

a) of the Criminal Code [Count 1 on Information 40035-C- 2]. On August 25, 2015, Mr. Cragg plead guilty to the indictable offence of attempted murder of Ronald Bethel by strangling him, contrary to s. 239(1) of the Criminal Code , dated February 18, 2015 [Count 1 on Information 94110-1] (The “Predicate Offences”). In addition, Mr. Cragg plead guilty to the assault of Mr. Felix Ram, June 2014 [Count 1 on Information 92826-1]. The Crown proceeded summarily on this matter. It is not one of the Predicate Offences, but it is a matter for which I must also sentence Mr.

Cragg. [ 2 ] Both of the Predicate Offences are serious personal injury offences as defined by s. 752 of the Criminal Code . [ 3 ] On March 8, 2016, consent of the Attorney General of British Columbia to commence a dangerous offender hearing was provided. [Exhibit 1 in these proceedings.] [ 4 ] The Crown applies to have Mr. Cragg designated as a dangerous offender pursuant to s. 753 of the Criminal Code , and sentenced to a determinate sentence, followed by a 10-year long term supervision order on both Predicate Offences. Notice was provided to Mr. Cragg and his counsel on October 23, 2017.

The notice is filed as Exhibit 2 in these proceedings. [ 5 ] In the event that I do not find that Mr. Cragg meets the criteria of a dangerous offender as set out in s. 753, the Crown submits that I should treat this application as an application for a long-term offender, as they submit that Mr.

Cragg meets the criteria for a long- term offender, and a 10-year long-term supervision order is appropriate, in addition to any determinate sentence I impose. [ 6 ] The Crown submits that an overall determinate sentence on the Predicate offences should be a global federal sentence in the range of 10 to 12 years, taking into account the principle of totality. Mr. Cragg was arrested on April 26, 2014, and he has remained in custody since that time. The Crown submits that no enhanced credit should be given to Mr. Cragg for the time he has spent in custody after he committed the offence of assault of Mr.

Felix-Ram, in June of 2014. [ 7 ] Mr. Cragg submits that he does not meet the criteria for designation of a dangerous offender as set out in the Criminal Code . He agrees that the Crown has established beyond a reasonable doubt a pattern of offending, of which the Predicate Offences form a part of that pattern that shows a failure by the offender to restrain his behaviour and that the pattern has shown a likelihood in the past of causing death or injury, or inflicting severe psychological harm on others through a failure to restrain his behaviour in the past.

He does not admit that the evidence establishes that he is likely to commit future violent offences in accordance with this pattern of historical conduct. He does agree that he meets the criteria in ss. 753.1(1) and (2) and should be designated as a long-term offender. [ 8 ] In the event that I do find that Mr. Cragg is a dangerous offender, pursuant to ss. 753(1)(a)(

i) and or (ii), both counsel submit that I should be satisfied by the evidence adduced in this hearing that a determinate sentence, coupled with a long-term supervision order (“LTSO”) of 10 years, will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. They also agree that if I do not find him to be a dangerous offender, but rather a long-term offender, the same sentence would be appropriate. Crown and defence counsel differ about the length of the determinate sentence.

Crown initially submitted that an appropriate sentence would be 10 to 12 years for the attempted murder, 3 years consecutive for the arson, and 3 months consecutive for the assault, with only the period of time between April 26, 2014 and June 29, 2014 credited at 1:5 to 1 for the time served. The Crown submits that no further enhanced credit should be given for the time Mr. Cragg has served on remand. After discussions with defence counsel, Crown counsel amended their position and indicated that they sought an overall global sentence of 10 to 12 years for Mr. Cragg.

Defence submits that an 8 year, 7 month sentence, comprised of the following sentences, should be imposed: Arson - 2.5 years; Attempted Murder - 6 years; and Assault - 30 days. Defence counsel submits that after accounting for time served, the remaining global sentence should be a further 3 year sentence. 2. PROCEDURAL REQUIREMENTS [ 9 ] Mr. Cragg has entered guilty pleas to the Predicate Offences. [ 10 ] An assessment pursuant to s. 752.1(1) of the Criminal Code was ordered on October 7, 2015 and prepared by Dr. Lohrasbe on December 27, 2015. An updated assessment was prepared June 12, 2017. [ 11 ] Dr.

Shabehram Lohrasbe is on the roster of Forensic Psychiatrists that the Forensic Psychiatric Services Commission (“FPSC”) retains for the purpose of undertaking court ordered assessments in dangerous offender hearings. The Dangerous Offender Co-ordinator assigned him to do the assessment. His assessments were filed in these proceedings on February 26, 2018 as Exhibits 14A and 14B. Mr. Cragg was interviewed by Dr.

Lohrasbe on both occasions. [ 12 ] On March 8, 2016, the Attorney General provided consent. [Exhibit 1 in these proceedings.] In addition, the accused was provided with notice of the application to have him designated as a dangerous offender on October 23, 2017. [Exhibit 2 in these proceedings.] [ 13 ] I find that all of the procedural requirements set out in s. 754(1) of the Criminal Code have been met to commence this hearing. [ 14 ] The main issue in this hearing is whether the Crown has established beyond a reasonable doubt that Mr.

Cragg should be designated as a dangerous offender, rather than a long-term offender. Both counsel agree, as set out above, that Mr. Cragg should be sentenced to a determinate sentence and a 10-year long-term supervision order. I must determine what the appropriate determinate sentence is on each of the two predicate offences and the other

summary assault matter. 3. LEGAL FRAMEWORK [ 15 ] The sentencing principles set out in ss. 718 , 718.1 and 718.2 of the Criminal Code are applicable in dangerous offender hearings [see R. v. Boutilier , 2017 SCC 64 , at para. 5] . Protection of the public, as in all other sentencing hearings, is a paramount and guiding principle in dangerous offender hearings. Mr. Cragg is indigenous and, therefore, the principles set out in s. 718.2(

e) of the Criminal Code are also applicable.

[ 16 ]

Part XXIV of the Criminal Code is the applicable part of the Criminal Code that governs proceedings in a dangerous offender hearing. (

a) Legislative History [ 17 ] Several recent cases have set out the legislative history of dangerous offender proceedings. In R. v. Boutilier , 2014 BCSC 2187 , at para. 2 , Mr. Justice Voith summarizes the legislative history as follows: “the modern dangerous offender’s scheme was enacted in 1977, amended in 1997 and most recently in 2008.” [ 18 ]

Part XXIV of the Criminal Code was amended in 2008. Those amended provisions govern the proceedings before me. [ 19 ] Section 753(4.1) requires that the judge shall impose an indefinite sentence, after making a finding of dangerousness, unless there “is a reasonable expectation that a lesser measure [determinate sentence with or without a long term supervision order]…will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.” 4. DISCUSSION OF THE LEGISLATIVE SCHEME IN

PART XXIV OF THE CODE [ 20 ]

Part XXIV, along with ss. 718, 718.1 and 718.2 are the relevant sections of the Criminal Code that I must consider in this application. [ 21 ] Sections 752-754 are the relevant sections in

Part XXIV of the Code relating to the determination of a dangerous or long-term offender.

Section 752 defines “court” and “serious personal injury offence”. For the purposes of the proceedings before me, the Provincial Court meets the definition of “court”.

Section 752.1 governs the procedural aspects of how an assessment report is obtained, and s. 753 sets out the various routes by which prosecutors may apply to a court when they seek to designate an offender as a dangerous offender. Sections 753(4) and (4.1) outline the various sentences available if the offender is found to be a dangerous offender. (

a) Serious Personal Injury Offences [ 22 ]

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

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). (

b) Requirements of Sections 753(1)(a)(

i) and (ii) [ 23 ] While

Part XXIV describes three possible routes a court can take to make a finding of dangerousness, in the dangerous offender application before me, the Crown relies on the routes described in ss. 753 (1)(a)(

i) and (ii), which state: 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 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 … [ 24 ] Sections 753(4) and 753(4.1) of the Code outline the sentencing stage of the dangerous offender proceeding, where the court has found the offender to be a dangerous offender: 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.

753(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidenceadduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(

b) or (c)will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. [25] If I do not find Mr. Cragg to be a dangerous offender, then the following sections apply to a determination as to whether he is along term offender: 753(5) If the court does not find an offender to be a dangerous offender, (

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

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

b) the court may impose sentence for the offence for which the offender has been convicted.

Section 753.1 of the Code states that: 753.1(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), findan offender to be a long-term offender if it is satisfied that (

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

b) there is a substantial risk that the offender will re-offend; and (

c) there is a reasonable possibility of eventual control of the risk in the community.

(2) The court shall be satisfied that there is a substantial risk that the offender will re-offend if (a)…. (

b) the offender (

i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows alikelihood of the offender’s causing death or injury to other persons or inflicting severe psychological damage on other persons, or …

(3) Subject to sections (3.1), (4) and (5), if the court finds an offender to be a long-term offender, it shall: (

a) impose a sentence for the offence for which the offender has been convicted, which sentence must be a minimum punishment ofimprisonment for a term of two years; (b)order the offender to be supervised in the community for a period not exceeding 10 years in accordance with

section 753.2 and theCorrections and Conditional Release Act. …

(6) If the court does not find the offender to be a long term offender the court shall impose sentence for the offence for which theoffender has been convicted. [26] Section 753 (1)(a)(

i) requires that the Crown first establish that the offences the offender has been convicted of are seriouspersonal injury offences, and secondly, that the offender constitutes a threat to the life, safety, or physical or mental well-being of otherpersons, on the basis of evidence establishing a pattern of repetitive behaviour by the offender, of which the Predicate Offences form apart of the pattern, showing a failure to restrain his or her behaviour, and a likelihood of causing death or injury, or inflicting severepsychological damage on other persons, through failure to restrain his or her behaviour.

Both the Crown and the defence agree that thePredicate Offences are serious personal injury offences. [27] Section 753(1)(a)(

i) requires that the Crown establish beyond a reasonable doubt that the offender constitutes a threat to the life,safety or physical or mental well-being of other persons on the basis of establishing a pattern of repetitive behaviour, of which thepredicate offence(

s) form a part, showing a failure on the part of the offender to restrain his behaviour and a likelihood of causing deathor injury to other persons or inflicting severe psychological harm on other persons, through a failure to restrain his behaviour. Section753(1)(a)(ii) is concerned with a pattern of aggressive behaviour. The Crown is required to establish that the pattern shows a substantialdegree of indifference with reasonably foreseeable consequences to other people. [28] In R. v.

Davidson, 2015 BCPC 335, the Honourable Judge Rideout noted the following about the phrase “pattern of repetitivebehaviour” in s. 753(1)(a)(i), and considered it in the context of the other elements the Crown was required to establish beyond areasonable doubt at the designation stage: [16] A dangerous offender designation must be imposed under s. 753(1)(a)(i), if there is a pattern of repetitive behaviour by the offenderdemonstrating his failure to restrain his behaviour coupled with a likelihood of causing death or injury to other persons, or inflictingsevere psychological damage on other persons, through the offender’s failure to restrain future behaviour. [17] The meaning of “a pattern of repetitive behaviour” is not defined in the Code.

In R. v. Neve, 1999 ABCA 206 , the Court ofAppeal, at para. 107, established the criteria required to prove “a pattern of repetitive behaviour”:

[107] What does it take for the Crown to prove the required patterns of behaviour under ss. 753(a)(

i) and (ii)? While "pattern” is notdefined in the Code, what is defined in each of ss. 753(a)(

i) and (ii) are the various components instrumental in creating the pattern. Ifthe Crown fails to prove one or more of the required elements, then the proscribed pattern has not been made out. Under s. 753(a)(i), theelements are the following: 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 restrainhis or her behaviour in the future. [18] Depending on the facts in a particular case, a pattern of repetitive behaviour sufficient to form the basis for finding a likelihood ofcausing harm to others in the future may be found on very few incidents; however, to establish the criteria of a pattern, the fewer theincidents, the more similar they must be: Neve, at para. 113 applied R. v.

Dorfer, 2013 BCCA 223 . [19] Additionally, the significance and relevance of common elements of a pattern must be assessed to determine the presence of arelevant pattern. This was discussed in R. v. Dow, 1999 BCCA 177 , at para. 24: [24] In short, the significance and the relevance of common elements of the pattern must be determined by whether they tend to showfirst, repetitive behaviour, second, that there has been a failure in each case to restrain the behaviour, and third, that there has beeninjury to other persons arising from that failure.

If any of those three elements is missing, then there may be a pattern but it will not be arelevant pattern. But if all three are present then the essential elements of a relevant pattern are revealed. [20] It is not necessary for all parts of the predicate offence to be like all parts of an offender’s earlier offences, though furthersimilarities may add “vividness to the pattern”: Dow at para. 27. [21] In Dow, Lambert JA commented, at para. 29, that it is for the sentencing court to determine the key elements of the pattern: [29] I should add that I do not think it was up to Dr.

Semrau, the Crown psychiatrist, to identify the relevant aspects of the pattern. Nodoubt psychiatric evidence is helpful in relation to pattern and very important in relation to predicting the likelihood of future behaviour,but it is for the sentencing judge to determine the key elements of the pattern, not the psychiatrists called by the Crown or the defence. [22] The Crown also needs to establish the “likelihood” that an offender will cause future harm.

The Crown is not required to prove thatan offender will re-offend; rather, the Crown must establish beyond a reasonable doubt that there is a likelihood that the offender willinflict harm in the future: R. v. Currie, (SCC), [1997] 2 S.C.R. 260, at para. 42. [23] To establish the likelihood that the offender’s future behaviour will inflict harm, a court is required to assess the quality andstrength of all of the evidence presented at a dangerous offender hearing: Lyons, at para. 94. [24] Likelihood” means more than a simple possibility.

At the very least, it means more probable than not: Neve, at para. 114. [29] In R. v. Walsh, 2017 BCCA 195, Bennett J.A., writing for a majority of the British Columbia Court of Appeal, concluded thatthe trial judge only looked at “superficial similarities” in concluding that there was a pattern of conduct that met the threshold set out ins. 753(a)(

i) of the Code. Bennett J.A. found that the trial judge did not examine the essential characteristics of the offences and thusfound a pattern where there was an absence of interconnectedness between the two offences. [Para. 52.] In essence, the trial judge didnot “examine his motives and the circumstances and whether they cast light on the offender’s behaviour.” [30] Recently in R. v.

Boutilier, the majority of the Supreme Court of Canada confirmed that the designation stage of a dangerousoffenders hearing requires the court to consider whether the offender will continue to be at a high risk to reoffend, which by its verynature necessarily requires the court to consider future treatment prospects. [Boutilier, supra, para. 43.] [31] The majority of the Supreme Court of Canada in Boutilier, at para. 5, also reaffirmed that the principles of sentence codified inss. 718 through 718.2 are applicable to the “dangerous and long term offender regime”. (

c) Sentencing Phase of the Dangerous Offender Proceeding, Where an Offender Has Been Found to Be a Dangerous Offender [32] The second portion of the dangerous offender hearing is known as the sentencing phase. Where a Judge finds beyond areasonable doubt that an accused person is a dangerous offender, the court has three options under s. 753(4): (

a) impose an indeterminatesentence; (

b) impose a minimum 2-year sentence, and a long-term supervision order; or (

c) impose a determinate sentence. [33] Under s. 753(4.1): 753

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

b) or (

c) will adequatelyprotect the public against the commission by the offender of murder or serious personal injury offence. [34] In the event that I find that the Crown has established that Mr. Cragg is a dangerous offender, then I must still determine,having regard to s. 753(4.1) governing the penalty portion of the hearing, what is the appropriate sentence to impose. [35] In the event that I do not find that the Crown has established that Mr. Cragg meets the threshold of a dangerous offender at thedesignation stage, then I must go on to consider whether he meets the definition of a long term offender, as set in s. 753(5), and ss.753.1(1) and (2).

[36] If I do not find that Mr. Cragg meets the definition of a long-term offender, then I must impose a sentence for the offences forwhich the offender has been convicted. (

d) General Procedural and Evidentiary Requirements in a Dangerous Offender Hearing [37] In R. v. Ziegler, 2012 BCCA 353 , [2012] B.C.J. No. 1755, Madam Justice Neilson summarized the evidentiaryprinciples and objectives in a dangerous offender hearing at paragraphs 7-11: • “A dangerous offender hearing is guided by the same evidentiary principles and objectives as other sentencing proceedings”[R. v.

Johnson, 2003 S.C.R. 46, at para. 23.] • Hearsay evidence is admissible provided it is reliable and credible. • The Crown must prove aggravated facts beyond a reasonable doubt if they are challenged by the offender. [R. v. Gardiner, (SCC), [1982] 2 S.C.R. 368 at 414-415.] • The Offender must clearly and unequivocally challenge disputed facts. [R. v.

Ford, 2010 BCCA 105.] • “The Crown may rely on an offender’s criminal record, as well as the circumstances surrounding his prior offences” and “neednot call the witnesses who testified at those trials” and “may rely on hearsay evidence of the historical facts of the previous offences fromreliable and trustworthy sources such as court records”. [R. v. Ziegler, citing R. v. Jack, (1998) (BC CA), 104B.C.A.C. 175, at paras. 40-41, and R. v.

Neve, 1999 ABCA 206.] • It is also open to the Crown to rely on evidence of past conduct, where that conduct is not charged, but where the factssurrounding that conduct are disputed, those facts must be proven beyond a reasonable doubt. [R. v. Read, (1994), 47 B.C.A.C, and R. v.Pike, 2010 BCCA 401.] (

e) Expert Evidence [38] Expert evidence is relayed to the court typically in the form of opinion evidence. Opinion evidence may be of questionablereliability where the opinions are based on assumptions which are unreliable, or based on unproven evidence. [R. v. Wilband, (SCC), [1967] S.C.R. 14; R. v. Knight (1975), (ON SC), 27 C.C.C. (2d) 343; and R. v. Pike, 2010 BCCA401.] [39] In this case, there is expert evidence from Dr. Lohrasbe, whom I qualified as an expert in the area of treatability and riskmanagement of individuals with regard to dangerous offender proceedings. Dr.

Lohrasbe prepared both court ordered assessments in thisproceeding, and they are both filed as exhibits. 5. CODY CRAGG’S PERSONAL HISTORY [40] Mr. Cragg was born February 18, 1989. He is the oldest child of four children of Robert and Wilma Cragg. He has threeyounger siblings. His mother is First Nations, and her background is Carrier Nation. His father is Irish, but Mr. Cragg also thinks thathis father’s grandmother may also have been Aboriginal. [41] As noted by Dr.

Lohrasbe at page 5 of the court ordered assessment, marked as Exhibit 14A, dated December 27, 2015 [“Dr.Lohrasbe Assessment #1”]: Cody Cragg’s “memories of childhood are overwhelmingly negative. By around age eight or nine he was forced to take responsibilityfor the care of three younger siblings.

He reports that his parents would frequently retreat to the basement of their home where theysmoked marijuana and it was then his responsibility to cook meals and generally care for his siblings…He describes his father as anirritable, intimidating and violent man.” [42] While there is some discrepancy in the various reports and assessments Dr. Lohrasbe reviewed regarding Mr. Cragg’s reportedhistory of childhood abuse, he does conclude that Mr. Cragg certainly suffered childhood trauma. [43] Mr. Cragg reported to Dr.

Lohrasbe that he was the main target of his father’s physical violence and mental and physical abuse. Dr. Lohrasbe summarizes at page 6 of the Court Ordered Assessment #1 that by “his [Cody Cragg’s] early adolescence he haddeveloped a cold, non-reactive, unattached, uncaring response to his father’s violence”. [44] According to Dr. Lohrasbe’s Court Ordered Assessment #1, at age 13 years, Mr. Cragg disclosed the violence to the Ministry ofChildren and Family Development (“MCFD”) and an investigation was commenced, but they concluded the investigation and thechildren were ultimately returned to their parents. Mr.

Cragg left home shortly after February 2013, when he turned 14. He reports thathis substance abuse issues commenced shortly after that at a youth shelter. [45] Dr. Lohrasbe, at page 26 of the Court Ordered Assessment #1, expresses caution about relying on some of the informationprovided by Mr. Cragg. Specifically Dr. Lohrasbe states that Mr.

Cragg “has been an unreliable historian” who has “providedinconsistent and at times contradictory information” relating to the reported neglect and abuse at the hands of his parent, and in relationto his criminal offending history and the circumstances relating to those offences. Dr. Lohrasbe notes that there is an absence of any realcorroboration of Mr. Cragg’s account of abuse at his father’s hands. Dr. Lohrasbe is also quick to caution that these inconsistenciesshould not necessarily be viewed as deceptions, as Mr.

Cragg is an “immature man, developmentally distorted by his early and lengthyincarceration and institutionalization”. It is important to note that Dr. Lohrasbe was not provided with either of the Gladue reports thatwere prepared, and were filed as Exhibits 16 and 21 in these proceedings. In those reports, both the authors set out information theyreceived from collateral contacts about Mr. Cragg’s childhood and the abuse he received. It is also important to note that Mr. Cragg’sparents were not contacted by either Dr. Lohrasbe or the author of the first Gladue report. His parents were not given an opportunity to

address the allegations of abuse set out in the first Gladue report. 6. MR. CRAGG’S CRIMINAL RECORD [ 46 ] I have set out below Mr. Cragg’s criminal record, including his youth convictions. He has, with the exception of approximately 10 months, been in a custodial setting serving an adult sentence since February 2006. He has actually been classified to an adult correctional facility since June 2006. [ 47 ] When I review the evidence in this case, including Mr. Cragg’s adult correctional history, I note the following: • Mr.

Cragg was released on parole July 2012; he reoffended in Victoria and his parole was revoked on October 3, 2012. [3 months in the community.] • He was held until his warrant expiry date of April 19, 2013, at which point he was released into the community on a 2-years. 810.2 recognizance. He remained in the community at that time until July 10, 2013, when he committed a break and entry at the “Touch of Europe Deli” in Victoria.

He was detained at that time. [2.75 months in the community.] • He was sentenced by Judge Higginbotham on the break and entry and the 2012 offences, and he received a global sentence of 7 months, less 50 days’ time served. He was released into the community on or around December 13, 2013. He reoffended on April 26, 2014, and has been in custody since then. [4.5 months in the community.] Mr. Cragg’s criminal record is set out below.

7. REVIEW OF MR. CRAGG’S CRIMINAL RECORD, CIRCUMSTANCES OF CRIMINAL HISTORY AND

SUMMARY OF PRE-SENTENCE REPORTS, COURT ORDERED ASSESSMENTS [ 48 ] In the following paragraphs, I have reviewed the circumstances of Mr. Cragg’s convictions. In respect of the bulk of the offences set out in his criminal record, I have included substantial references to information contained in the various reports prepared to assist previous judges in sentencing Mr. Cragg. I have, in certain instances, also referenced the provincial and federal logs prepared by correctional officers. In my view, this in-depth review is necessary to understand Mr.

Cragg’s past offending and whether it constitutes a pattern of offending. In addition, it is also necessary to assess, looking forward, whether Mr. Cragg presents as a high risk to reoffend violently and, if so, whether that violent offending pattern is intractable. (

i) Prince George Youth Correctional Files 2322-1, 2715-C-3, 2872-3 [ 49 ] By way of

summary, Mr. Cragg’s criminal history commenced on June 3, 2004, when he was sentenced for offences of theft under, committed on March 11, 2004 and Robbery, dated December 14, 2003 (robbing a 7-11 store using a knife) [files 23322-1, 2715- C-3]. At the time of commission of the robbery offence, Mr. Cragg was 14 years old. He was sentenced in youth court to a term of probation for one year in relation to the theft under offence and to a short period of jail for the robbery. [ 50 ] While being supervised in the community on probation, he committed two more robberies in August 2004 (Court File 2872-3).

He was sentenced on those two counts of robbery in November 2004 to a 360-day jail sentence, with 240 days to be served in custody and 120 days in the community, to be followed by probation term of 12 months. His community release was suspended and he served his remaining portion of the community sentence in a youth detention facility. [ 51 ] Dr. Stefanelli prepared a psychiatric report in relation to Prince George Youth files 2715-4-A and 2872-3-C2. His report is dated October 28, 2004 and it is filed as Exhibit 9 in these proceedings. Dr. Stefanelli reported that Mr.

Cragg disclosed to him that he had “difficulty controlling his temper” and “he flips out.” He becomes “verbally aggressive” and “on occasion will punch walls.” Mr. Cragg also provided information that he had fashioned a knife out of a plastic toothbrush that he intended to use as a weapon against another offender. He also disclosed to Dr. Stefanelli that his substance abuse began when he was 12, in grade 8, where he began using marijuana. From the fall of 2003, Mr. Cragg advised that he had been using crystal meth on a “daily basis” until 2004, when his drug use abated somewhat.

He also disclosed using crack cocaine and selling drugs during that time period, to feed his own drug habit. Mr. Cragg did not disclose that his father had been abusive towards him. Dr. Stefanelli also reported that Mr. Cragg told him “he likes to be in control and not have to follow rules.” [ 52 ] The two offences of robbery committed in August 2004, on Information 2872-3-C-2 related to Mr. Cragg (in the company of several other young males), at 10:30 p.m. robbing, at knife point, two clerks at a small grocery store. The motive for the offence was to obtain money to purchase drugs. According to Mr.

Cragg, the offence was premeditated, as they had to go to one of the other male’s house to get the knives. At the time of this offence, Mr. Cragg was breaching his 10:00 p.m. curfew. [ 53 ] At the time the report was prepared, Dr. Stefanelli observed that Mr. Cragg had the “intellectual potential” to do well at school, and was in fact achieving good grades at school while he was incarcerated, but he lacked motivation to apply himself when he was not in custody. [ 54 ] Psychological testing was administered on Mr. Cragg. Dr.

Stefanelli observed that there was no evidence of psychosis, and while Cody Cragg was a resident at the inpatient clinic, his behaviour was excellent. Overall, Dr. Stefanelli concluded that Mr. Cragg warranted a diagnosis of Conduct Disorder, moderate severity, adolescent onset. He displayed poor judgement, and expressed poor

insight and understanding about his offending behaviour. Even though Mr. Cragg took responsibility for his behaviour, he had expressed little understanding about how his offending impacted the victims of crime and society. In addition, Dr. Stefanelli observed that he also warranted a diagnosis of Polysubstance Abuse. Dr. Stefanelli concluded that Mr. Cragg’s “risk for future offending and violence is quite pronounced unless he develops a significant change in how he views and interacts with the world.” Of note, at the time of the assessment, Dr. Stefanelli observed that Mr.

Cragg did not express ideas of suicidal ideation. No evidence of depression was noted at that time either. (ii) Prince George Youth file Information 2994-3-C Date of Disposition: February 6, 2006 [ 55 ] On December 8, 2005, Dr. Stefanelli prepared an updated psychiatric report, because Mr. Cragg had committed two subsequent offences of break and entry: one at a pub and another at a private residence. Those offences were committed on August 7, 2005, two days after he was released from custody on probation for the above mentioned robbery convictions.

In addition, one week later, after the break and enters, he and some friends had also committed an armed robbery, using a knife at a Husky station, demanding that the employees lay face down on the floor. They had previously “cased” out the location and therefore, the court found a level of planning was present. In the course of committing the robbery, Mr. Cragg wore a face mask. The robbery was committed to pay for some crack cocaine they had obtained and not paid for. The Crown sought to have Mr. Cragg sentenced as an adult offender. Judge Michael Gray imposed an adult sentence, noting that Mr.

Cragg had availed himself of all of the programming available at the Prince George Youth Correctional Facility. Dr. Stefanelli prepared an Intensive Rehabilitation, Custody and Supervision Report. [ 56 ] While Mr. Cragg was on remand for these offences, he incurred a number of institutional infractions, including violent encounters with other inmates and an incident of self-harming. Judge Gray noted that Dr Stefanelli considered Mr. Cragg to be at a high risk to reoffend violently. He also observed that Mr.

Cragg’s addiction to crystal meth and other drugs was ongoing and prevalent during the time he committed the offences. Judge Gray ultimately sentenced him to a 3-year global sentence, with 2 years imposed for the robbery. Judge Gray also ordered that Mr. Cragg serve his sentence in a youth detention facility, until such time as he turned 18, at which point he would be transferred to a federal institution. [ 57 ] Dr. Stefanelli observed that Mr. Cragg seemed less concerned about the victims of the crime than he had been in the past. Mr. Cragg described that he felt like he was becoming “institutionalized”. Mr.

Cragg also described that he felt a “rush of adrenaline” when he committed crimes. He also described that during this brief period of time when he was released from custody, he immediately began using drugs and quickly fell back into criminal offending behaviour including thefts and fights. [ 58 ] Dr. Stefanelli also noted that initially, when first incarcerated, Mr.

Cragg’s behaviour seemed to fluctuate, but then his behaviour “improved dramatically,” and during the last sentence he served, “was soon at the top of the institution’s behaviour charts.” While serving his sentence and attending programming, he excelled and was described as an “ideal group candidate.” He was noted to understand and express the ideas he learned from his courses, and correctional officers observed him applying these techniques. His behaviour was so improved that he was given an opportunity to attend a wilderness camp out of the custodial facility.

He “AWOL’d” from there and was at large for several weeks. Dr. Stefanelli observed that: “ It is somewhat concerning that Cody has applied himself so diligently to many of the programs available in custody and seemed to understand and benefit from these programs, but has not been able to apply these concepts in the community.” [ 59 ] At the time he was recommitted to the youth facility, Dr. Rachel Boulding, a psychiatrist began to treat him. He was also diagnosed with Obsessive Compulsive Disorder (“OCD”). (According to Dr. Lohrasbe, Mr. Cragg’s OCD continued to be active in his present period of remand.) Mr.

Cragg began taking a number of medications including Prozac, to assist him with managing the symptoms of OCD. At this time, Mr. Cragg also reported that he did not have suicidal ideations, nor did he engage in self-harming behaviours. Dr. Stefanelli concluded that Mr. Cragg’s future prognosis was “guarded” and that “increased support and supervision” would be very important in any plan to transition Mr. Cragg from an institutional setting back to the community. Dr. Stefanelli noted at the time of this report that Mr. Cragg was “at very high risk for future violent offending.” [ 60 ] Mr.

Cragg was sentenced by Judge Gray to a 3-year adult jail sentence in relation to the above noted offences. Originally, the sentence was structured to enable Mr. Cragg to stay at the youth custodial facility until he turned 18, at which point he would be transferred to the federal institution. The date for his transfer would have been his 18 th birthday: February 18, 2007. However, while Mr. Cragg was in the juvenile detention facility, the correctional staff noted that he was becoming increasingly difficult to manage. He was not attending programming.

He was engaged with a group of young people with whom he was not having positive social interactions. (iii) Prince George Youth File Information 3261-1 [ 61 ] In early June 2006, while in custody in the youth facility, Mr. Cragg threatened a youth correctional officer. The threats were serious, as Mr. Cragg threatened to kill the correctional officer and her family. Judge Walker sentenced Mr. Cragg to 14 months on the threatening charge and a charge of possession of a weapon (a homemade “shiv”) dangerous to the public peace.

Judge Walker made reference to the serious nature of the offences and the concern expressed by the correctional officer for her personal safety. Mr. Cragg indicated that he initially was planning to alert the correctional officer to the threats other inmates were making in relation to the correctional officer. However, he changed his mind. He decided to join in with the other inmates and he also threatened to kill her.

He said he changed his mind because he felt this behaviour would bring him notoriety and increased status amongst other inmates, and would result in his transfer to an adult institution. (Sabrina Mills reveals greater details about this offence in her 2013 Report to Crown Counsel, attached in Exhibit 9 that was created in support of the application to obtain the s. 810.2 two-year order.) In that Report to Crown Counsel, Ms. Mills indicated that Mr. Cragg planned to escape and carry out the threat to kill the correctional officer and her family. Although, later on, Mr. Cragg disavowed that was his intention.

Instead, he said it was only done to facilitate his transfer out of the youth detention facility. Ms. Mills also provided greater detail about the circumstances underlying the conviction for possession of a weapon. Mr. Cragg refused to exit his cell at the time he was being removed from it, and used a sharpened stick as a weapon. Judge Walker believed that this aspect of Mr. Cragg’s behaviour may have been part of Mr. Cragg’s desire to seek notoriety. Mr. Cragg also indicated that as a result of this behaviour, he had “moved up in the gang he was a part of.” (This was one of his stated motivations for

committing this offence.) [ 62 ] In late June 2006, Mr. Cragg was transferred to the Regional Treatment Centre (“RTC”), where he was classified to a federal institution. [ 63 ] On June 30, 2006, Dave Kereliuk, a Register Psychiatric Nurse prepared an assessment. Mr. Cragg disclosed to him that he believed he suffered from substance abuse issues, which tended to bring on paranoia. He also indicated that his “last suicide attempt” was nine months before. (iv) Chilliwack Information 55546 – Attempted Murder – February 4, 2008 [ 64 ] On February 4, 2008, Mr.

Cragg committed an offence of attempted murder while incarcerated at Kent Institution. This offence was described by Judge McKay in his Reasons for Sentence as follows: There was an agreement between Mr. Cragg and Mr. Tekano (another inmate) where Mr. Cragg would give Mr. Tekano his drugs in exchange for tobacco. Mr. Tekano did not apparently live up to the agreement and Mr. Cragg then produced a “shiv” and stabbed him in the throat and calmly walked away. Mr. Tekano received medical attention that prevented his death.

The circumstances could hardly have been more serious.” [ 65 ] On September 9, 2008, (according to Ms. Mill’s s. 810.2 Report to Crown Counsel), Mr. Cragg was also seen by Dr. Lamba. Dr. Lamba assessed Mr. Cragg using various actuarial tools, including the HCR-20, and concluded that at that time Mr. Cragg presented as a high risk to reoffend. [ 66 ] Probation Officer Lawrie Bay referenced the report prepared by Dr. Lamba. Mr. Bay’s report is contained within Exhibit 9. Mr. Bay noted that Mr. Cragg had a history of self-harming: Dr. LAMBA provided an institutional history as well as highlighted a chronology of Mr.

CRAGG's self-harm behaviour. Dr. LAMBA spoke to Mr. CRAGG at great length about the various episodes of self-harm he engaged in and documented Mr. CRAGG's thoughts and responses to the episodes. Dr. LAMBA noted that this behaviour appeared primarily motivated by a desire to seek a thrill or euphoria, or relief of tension if not motivated by manipulative attempts for secondary gain of a specific placement whether it is at the psychiatric hospital or particular unit of the prison. By MR.

CRAGG's own report, he finds the sight of blood following self-harm, pleasurable. [Probation Officer’s Lawrie Bay’s Pre-Sentence Report contained within Exhibit 9.] [ 67 ] In Lawrie Bay’s Pre-Sentence Report (prepared in advance of the sentencing hearing for the attempted murder charge), Mr. Bay described Mr. Cragg’s transfer from the youth detention facility to Correctional Services of Canada [see Mr. Bay’s report contained within Exhibit 9 – Tab 8]: Initially upon his transfer to the federal penitentiary system the Subject spent about six weeks in the Regional Reception Centre in Abbotsford, British Columbia.

This was followed by about a week in the Regional Treatment Centre in the same community and then a transfer to Mission Institution where he stayed for a few months before encountering problems in his interaction with some other inmates. Although he subsequently spent some time in a remand centre in Prince George, British Columbia prior to a previous sentencing in April 2007 he then otherwise remained in Mountain penitentiary in Agassiz, British Columbia until September 2007 when he was transferred to nearby Kent Institution. It was here that he committed the present offence.

Over the past year the Subject has spent time both at Kent prison and at the Regional Treatment Centre, moving back and forth between these two facilities on a number of occasions over recent months. According to the Subject some of these transfers have occurred because of "incompatibility" issues between him and other inmates, although his last return to Kent on 04 March 2009 was initiated upon his request. He agreed to come back to the Regional Treatment Centre about a week ago. [ 68 ] In Mr. Bay’s Pre-Sentence Report, he also noted that at that time, Mr. Cragg reported consistent contact with his family. Mr.

Cragg reported that since his classification to the federal system, he had become more connected with his Aboriginal family history and was interested in engaging in Aboriginal programming offered. At the time he prepared the Pre-Sentence Report, Mr. Bay observed fresh evidence of self- harming on Mr. Cragg’s forearms, including the presence of scars, stitches and recent staples to close wounds. Mr. Cragg described that the attempted murder occurred because he and the victim had earlier agreed that the victim would trade some of his prescription medication for some tobacco. According to Mr.

Cragg, this “trade” did not occur, which caused Mr. Cragg to become enraged and attack the victim by slashing him in the throat with a homemade shiv. As noted above, Judge MacKay observed that “t he circumstances could hardly be more serious; it is simply a matter of providence and certainly nothing to do with any behaviour on the part of Mr. Cragg that Mr. Tekano did not die”. [ 69 ] Later on, in a subsequent report prepared by Dr. Morgan for the court for the 2014 Predicate Offence of arson, Mr. Cragg described this attempted murder of Mr. Tekano differently. In that report, Dr. Morgan reported that Mr.

Cragg advised him that the inmate he stabbed (Mr. Tekano) did not do anything to him. Rather, Mr. Cragg “thought to kill him and could not get rid of it”. Mr. Cragg advised Dr. Morgan that the offence was “planned and pre-meditated”. Mr. Cragg described this offence in a similar way to Dr. Lohrasbe, where he noted that he committed the offence in response to a homicidal compulsion that he could not overcome. [Dr. Lohrasbe Assessment #1.] [ 70 ] Judge MacKay sentenced Mr. Cragg to four years in jail, to run concurrent with any other sentence he was serving at the time.

He noted that given the seriousness of the offence, and the fact that it was luck rather than anything else that death did not ensue as a result of Mr. Cragg’s actions, an appropriate sentence was four years. Given the absence of remorse that Judge MacKay observed, he stated that he believed that Mr. Cragg was in need of “intensive psychiatric and psychological counselling.” [ 71 ] In January 2012, there were several federal corrections reports prepared discussing whether Mr. Cragg should be released into the community in advance of his warrant expiry date. Mr.

Cragg was noted to have made some progress in treatment and his psychiatrist, Dr. Healy supported his release to “practice and reinforce his skills in the community” in preparation for his warrant expiry

date. [ 72 ] In early 2012, in anticipation of Mr. Cragg’s upcoming parole board hearing, Walt Bergen, an associate psychologist assessed Mr. Cragg for the purposes of evaluating his future risk to reoffend. Mr. Cragg’ s warrant expiry date was April 13, 2014. Dr. Healy, Mr. Cragg’s psychiatrist, supported his release on parole. Mr. Bergen reviewed Mr. Cragg’s correctional files and also conducted a series of psychological tests. Mr. Bergen noted: Mr. CRAGG had an extensive institutional history of self-injurious behaviour.

On 2008-02-25 he bit a large chunk off his wrist saying this was to harm or kill himself and that he intended to continue with the behaviour. Another time Mr. CRAGG slashed his arm then proceeded to re-open the freshly stitched wound. Another incident Mr. CRAGG inflicted five cuts to his face, brow, neck, arm and chest which required suturing. During the time between psychological assessments, [2010-02-01 to 2012-02-22] correction files indicated CRAGG recorded 32 incidents of self-harm behaviours. [ 73 ] Mr. Bergen also noted that Mr.

Cragg was involved in a self-harming incident in January 2012, where he sliced his face, brow, neck, arm and chest requiring stitches. According to Mr. Bergen’s report, Mr. Cragg had been doing well for a few months, but a build- up of stress led to this incident of self-harm. Mr. Bergen was troubled by Mr. Cragg’s limited insight into his violence and impulsivity as risk factors, particularly due to the fact that Mr. Cragg was serving a sentence for an attempted murder that occurred while he was incarcerated. Mr. Bergen felt that Mr. Cragg was minimizing these symptoms. Mr. Bergen reported that Mr.

Cragg had limited insight into his triggers and risk factors. Mr. Bergen did conclude that Mr. Cragg had made some progress as a result of working with a psychiatrist and other mental health professionals. He had been able to positively interact with staff, but he continued to have trouble with his “negative emotional states” and he continued to self-harm, which Mr. Bergen connected to negative emotional states. [ 74 ] In early 2012, Mr. Cragg reported to Mr. Bergen that he felt his risk to reoffend was low.

He was not doing drugs, he did not have thoughts of committing crime and he was highly motivated and prosocial. [ 75 ] Mr. Bergen concluded that while Mr. Cragg had experienced four to five months of “steady self-management behaviour…he was recently returning to emotional instability.” [ 76 ] After he administered the psychological testing, Mr. Bergen concluded that Mr. Cragg was at a moderate high risk to reoffend violently, and at a high risk to engage in self-harming behaviours. [ 77 ] Mr. Cragg’s self-harming behaviour diminished but did not completely end during this time period in early 2012. Mr.

Cragg advised the parole board at one of his parole hearings in 2012 that his self-harming started when he was sent to the federal institution. He described it as an “escape.” [ 78 ] In May 2012, the parole board reviewed an application by Mr. Cragg for parole. The two-member panel was split on their decision to release Mr. Cragg: one voted for it and the other was opposed. The dissenting board member made reference to the instance where in January 2012, Mr. Cragg was found in possession of “brew” in his cell, which he advised correctional officers he intended to consume.

He also provided contrary information to the parole board, where he stated that he was hiding the brew for another inmate. The dissenting parole board member reported that Mr. Cragg continued to self-harm in January and February 2012. He found this troubling. [ 79 ] The dissenting parole board member also noted Mr. Bergen’s psychological report indicated that, absent acute psychiatric care, it would be difficult to manage Mr.

Cragg in the community; but he also noted that the elders supported his release on parole. [ 80 ] In a psychiatric report dated May 28, 2012, prepared in part for the purposes of supporting Mr. Cragg’s release on parole, Dr. Healy (Mr. Cragg’s treating psychiatrist at Correctional Service Canada (“CSC”) in 2012) reported that: When she first met Mr. CRAGG she experienced him as insensitive and uncaring about the impact/consequences his actions had on others. He had almost zero tolerance for individuals he experienced as inadequate.

Once he made the decision to change, he made conscious efforts to try to understand the feelings and experiences of others. Mr. CRAGG'’s general conduct has notably matured as well. In the earlier years his behaviours on the Unit could be considered more juvenile and in need of containment and supervision. In the later years, he behaved as a young man who is respectful of boundaries and expectations and respectful to the rights of others. [ 81 ] In that report, Dr. Healy said that the side effects of the medication for OCD caused her to discontinue the medication and treat Mr.

Cragg with non-medical interventions instead. At the time she wrote the report, she indicated that he did not meet the criteria for OCD, even though he still had thoughts of self-harm. She did not link the self-harming behaviour to OCD. Dr. Healy confined the symptoms of OCD to number counting; whereas Dr. Lohrasbe believed that the homicidal and suicidal ideations were also part of his OCD. Dr. Healy said that she did not believe Mr. Cragg intended to die when he self-harmed. (It is clear, though, that between April 2014 and the summer of 2015, Mr.

Cragg’s self-harming behaviour escalated in frequency and severity. Some of Mr. Cragg’s self- harming incidents were deemed by medical practitioners to be suicidal and he expressed having suicidal ideations.) [ 82 ] In any case, as of the spring of 2012, it is fair to say that Mr. Bergen was much more guarded about Mr. Cragg’s progress than Dr. Healy was. [ 83 ] Mr. Cragg’s self-harming continued January 11 and 16, 2012, February 15, 2012, and June, 2012.

It never abated prior to his release from custody on parole in 2012. [ 84 ] The Elder he was working with was supportive of his release into the community to attend the Aboriginal Healing Centre Tsow-Tun Le Lum. [ 85 ] According to Ms. Redding’s notes, on July 1, 2012, the Canada Parole Board decided to approve a “one time only release with a residency condition,” that if breached would result in Mr. Cragg’s parole being immediately revoked. The Parole Board decision reported that Mr. Cragg had support from his Correctional Management Team (“CMT”) group in the institution, Dr. Healy and the

Elders he was working with. It was also noted that he had made progress in “expressing remorse, taking responsibility,” and was “maturing in terms of his emotional responses and behaviour.” [ 86 ] Mr. Cragg breached his parole in October 2012 and he was returned to prison, where he served the remainder of his sentence primarily in the “Pacific Institution and Regional Treatment Centre”. (

v) Victoria file 158858-1 Assault Police Officer and Wilfully Obstruct Police Officer Victoria file 160548 Break and Entry [ 87 ] On October 10, 2012, Mr. Cragg’s parole was revoked because he was alleged to have committed new offences in Victoria on October 10, 2012. Mr. Cragg was charged and ultimately convicted of assaulting a police officer. [ 88 ] In a Pre-Sentence Report prepared for Mr. Cragg’s sentencing in relation to the October 10, 2012 offences, the probation officer, Ms. Redding stated: Cody was released on parole on July 12, 2012.

He attended and completed the six weeks Tsow-Tun Le Lum Residential Treatment Program in Lantzville, BC and arrived at Manchester House in Victoria, BC on August 24, 2012. Cody failed to return to the halfway house by curfew on September 15, 2012 but upon consultation with his community parole officer and halfway house staff he was allowed to return September 16, 2012. On October 3, 2012, Cody failed to return to Manchester House and a warrant of suspension was issued. On October 11, 2012, Cody was arrested on the offences currently before the court. [ 89 ] Ms.

Redding relied on information she had accessed from Dr. Healy’s reports: Cody’s last psychological report on record was prepared in May 2012 by Linda Healey, Psychiatrist. Dr. Healey had been involved with Cody’s care since his first admission to the Regional Treatment Centre in 2008. Mr. Cragg has an extremely lengthy history of self-harm beginning in federal custody on October 22, 2007. However, records indicate that there was an incident of self-harm while in youth custody as early as January 19, 2006.

It has been hypothesized that Cody’s incidents of self-harm can be linked to stressful times, intrusive thoughts and his inability to cope. Dr. Healey wrote “From a psychiatric perspective Cody does not suffer from a major mental illness and does not meet full criteria for a psychiatric illness. For years however he has struggled with labile mood and anxiety”. [ 90 ] Ms. Redding also made reference to other information she had gathered from Dr.

Healy’s notes and her own review of the federal corrections records and she wrote: Cody spent a significant amount of time in the special or “complex needs unit” of the Regional Treatment Centre. Joanna Mander, Institutional Parole Officer, states there are “pages and pages of incident reports”, over thirty of which are self-harm reports. The first incident report re: self-harm occurred October 22, 2007. Cody estimates that he has required medical attention in the community approximately twenty times. Two of these incidents, one occurring in March 2008, another December 28, 2013, demonstrated suicidal ideation.

Cody had slit his own throat in the latter incident. Even though surgery was required, he incurred permanent nerve damage. Dr. Healey commented that Cody had matured emotionally over the years and this “maturity has been evident in his self-awareness and regulation, his interpersonal relationships and his conduct”. She notes that Mr. Cragg has worked with his treatment team, in particular elder, Tom McCallum, and she has observed a gradual but very definite transformation”. Dr.

Healey also offered that “in Cody’s case there was no link between him engaging in self-harm and aggression towards others”. [ 91 ] At that time, Mr. Cragg advised Ms. Redding that he had not used any non-prescription drugs since the summer of 2011, but he relapsed twice while on parole on September 15 and October 3, 2012. On October 3, 2012, Mr. Cragg reported to Ms. Redding that he knew he was going to be going “back in” so he panicked, gave up and started consuming alcohol. [ 92 ] Ms. Redding reported that Cody Cragg did take programming while he was incarcerated at the federal institutions.

He spent a considerable amount of time at the RTC due to the prevalence of his self-harming behaviour and the inability of other institutions to manage that behaviour. [ 93 ] Ms. Redding also observed that as of 2007, Mr. Cragg completed a significant amount of programming while incarcerated serving his multiyear federal sentence. I have detailed Ms. Redding’s description of the programming below, as much of it is likely programming that Mr.

Cragg will be exposed to again in the federal institution: He participated in the following Federal Integrated Correction Program Model (ICPM) programs – the Aboriginal Primer.

The Primer is a ten session, preparatory program with the goals of 1) assisting offenders to identify the factors that lead to involvement in criminal activity; (2) motivating them to see the benefits for participating in a Correctional Program, and (3) teaching them basic self-management skills to cope with the institutional high risk situations they will face while awaiting the Correctional Program, e.g. managing cravings, conflict, muscling. Participation in a Primer is a prerequisite for participation in other Integrated Correctional Programs.

Cody had almost completed the High Intensity Aboriginal Substance Abuse Program while incarcerated at Mountain Institution in 2007. He has a regular participant in sweats and pipe ceremonies in 2011 and 2012 and has been actively involved with institutional elder, Tom McCallum. He has also managed to attain the position of Chair of the Aboriginal Wellness Committee. He has sung sacred songs in ceremonies, participated in the big drum group, morning circles and smudging ceremonies. He also assists inmates who have minimal understanding of the culture and respective ceremonies.

Records indicate that his immersion in the cultural aspects have effectively reduced the number of self-harm incidents. Cody also completed the Aboriginal Multi-Target High Intensity Program. The total program length of the Aboriginal Multi-Target Program – High Intensity, is 112 sessions of 2 to 2.5 hours each. It is co-facilitated by two Correctional Program Facilitators trained in

the program area. Program facilitators deliver seven sessions per week, but this may vary, depending on site regime and program delivery schedules. To maximize Elder Resources, delivery strategy will identify sessions requiring Elder involvement, thereby allowing Elders to support and participate in multiple programs. Because of his participation in the institutional programming and due to the decrease in the amount of incident reports, the Parole Board granted him one opportunity at parole.

Cody had not had any major peer issues and had developed positive relationship with an elder and his institutional parole officer. Cody would be interested in making connections with First Nations supports and programming in the Victoria community. During his brief time in the community on parole, Cody completed the Substance Abuse program offered at the Tsow-Tun Le Lum Lodge in Lantzville. He was currently being supervising by Nanaimo Parole. Following his release on parole August 24, 2012, Cody was actively participating in his Correction Plan.

He was seeing a community psychiatrist, working with an elder within the community and taking advantage of the work programs offered. [ 94 ] Ms. Redding reported that Cody Cragg was released from federal corrections one day prior to his warrant expiry date of April 19, 2013. In total, Mr. Cragg served a seven-year, one-month and 15-day sentence that commenced February 28, 2006. [ 95 ] After his release from custody, Mr.

Cragg entered into a s. 810.2 two-year undertaking. (Previously, in these Reasons I have made reference to the Report to Crown Counsel prepared by Cpl Sabrina Mills in support of this application.) He was bound by that undertaking at the time he committed the offence of break and entry to a “Touch of Europe” deli in Victoria, BC, on July 10, 2013. [ 96 ] Mr. Cragg had also been on bail on the two counts that occurred in October 2012 when he was on parole (assault police officer and obstruct police officer).

As indicated above, his parole was revoked as a result of those offences, and he served the remainder of his federal sentence. [ 97 ] Judge Higginbotham convicted Mr. Cragg of the assault and obstruct police officer charges after trial. The circumstances of those two offences occurred when Mr. Cragg was intoxicated, refused to provide his name to the police officer, and then spat at him. Mr. Cragg also plead guilty to the offence of breaking and entering the “Touch of Europe” deli in Victoria; that offence occurred on July 10, 2013. Mr.

Cragg and another accomplice broke into that business, and when police attended, the break and entry was in progress. The cash till had been smashed, and Mr. Cragg was found to be in possession of a bag of change from it. His accomplice had a flat of juice from the deli. Mr. Cragg explained through counsel that this offence occurred when he had again relapsed. [ 98 ] A Gladue report was ordered by Judge Higginbotham and prepared for that sentencing. It has been filed as an exhibit in these proceedings, but Dr. Lohrasbe has not reviewed it. The Gladue report indicated that Mr.

Cragg’s father had cut Cody Cragg off from his aboriginal heritage, and again described that Mr. Cragg’s father had been abusive towards him. Neither of Mr. Cragg’s parents were interviewed for that first report. [ 99 ] After Mr. Cragg had been released from the federal institution in April 2013 and before this offence occurred in July 2013, Mr. Cragg reported that he had been living with his cousin in Maple Ridge, working and abstaining from alcohol and drugs. [ 100 ] On August 29, 2013, Judge Higginbotham sentenced Mr. Cragg. He specifically referenced the Gladue factors, and then sentenced Mr.

Cragg to an overall global sentence of seven months, less the 50 days he had already spent in custody: 30 days concurrent for the offences from October 2012; six months for the break and entry; and 30 days for the breach of recognizance. In addition, Mr. Cragg was placed on probation for a period of two years. Judge Higginbotham noted that “In the absence of treatment, and I mean serious treatment for substance abuse, you constitute, in my opinion, a high risk to reoffend.” [ 101 ] Mr.

Cragg was released from custody the middle of December 2013 after serving the sentence of seven months, less 50 days. (vi) The Predicate Offences [ 102 ] On April 26, 2014, Mr. Cragg was arrested for arson in relation to his landlord’s residence. At 0527 hours Mr. Don Callaghan reported to police that Mr. Cragg had lit fires in his suite, which was in the basement of Mr. Callaghan’s residence. Specifically, Mr. Callaghan advised that he awoke to the sound of “water trickling.” His house was filled with smoke. He went downstairs to Mr. Cragg’s suite and observed that two small fires had been lit.

There was no significant damage done to Mr. Callaghan’s property. Mr. Callaghan also reported that Mr. Cragg had fled in Mr. Callaghan’s truck, which he did not have permission to take. [ 103 ] Mr. Cragg drove Mr. Callaghan’s truck to the Prince George RCMP detachment and turned himself in, advising the police he has just lit a house on fire and that he was feeling “schizophrenic.” Mr. Cragg did not appear to be under the influence of any drugs or alcohol at that time. [ 104 ] Since this date, April 26, 2014, Mr. Cragg has been in custody. [ 105 ] Mr. Cragg discussed this offence with Dr. Lohrasbe. He told Dr.

Lohrasbe that: He set the fire intending to kill Don but cannot reconstruct exactly how he thought the fire setting would actually kill Don. At the time his actions, like his emotions and thought processes, were muddled and under pressure of his “mixed up paranoia”. He thinks he had not slept several days prior to the fire setting, but cannot recall specifically exactly how many. He recalls that he felt relief once the police took him into custody. He felt safe and was able to sleep. [Dr. Lohrasbe, Assessment #1] [ 106 ] The police report prepared for the arson offence reports that Mr.

Cragg told the police similar information about his inability to sleep. [ 107 ] On November 12, 2014, a psychiatric Pre-Sentence Report was prepared by Dr. Morgan in relation to the arson offence, which is one of the Predicate Offences in this hearing. [ 108 ] Dr. Morgan noted that Mr. Cragg told him the following information about the Predicate Offence of arson:

Mr. Cragg told me that he had rented the basement suite in which he was living from Don, his landlord. He told me that Don lived upstairs. Mr. Cragg told me that he was paying $550 a month in rent, but that the bathroom and kitchen were shared and were in the main area of the home. Mr. Cragg told me that he set a fire in his basement suite as he wanted to kill Don. He told me that he had thought about this for a few days. He described Don as an elderly male who was in his 70's. I discussed with Mr. Cragg his need for notoriety and to be taken seriously by others.

When we discussed the trial of Luka Magnotta and how he had killed his victim, a big smile crept across Mr. Cragg's face. He told me that Mr. Magnotta certainly became notorious after what he did and that he found Mr. Magnotta's actions interesting, but that he wouldn't go that far. Mr. Cragg told me that he doesn't like being in jail, but feels that he needs to be incarcerated. He told me that his being in custody protects other people, and that he finds the routine and structure beneficial. When I asked Mr.

Cragg whether he thought he was such a danger to the public that he needed to be designated as a dangerous offender, he told me that he probably needs to be. He told me that he worries he will kill someone. Mr. Cragg told me that homicidal ideation is something that excites him, and that he enjoys the feeling of having power over life and death. When I asked Mr. Cragg why he has not killed anyone as yet, he responded by saying “I've tried by stabbing, choking and setting fire.” Mr. Cragg told me that he ‘kind of needs to be locked up forever’. [ 109 ] Dr. Morgan concluded that Mr.

Cragg was at a high risk for reoffending violently in the community and other offending in general. His clinical observations included a diagnosis of Borderline Personality Disorder (“BPD”), Antisocial Personality Disorder (“ASPD”), and a high score in the PCL-R ( Hare Psychopathy Checklist-Revised) which suggested to Dr. Morgan that there was some evidence of psychopathic personality traits. [ 110 ] Dr. Morgan also referred to Dr. Tomita’s assessment prepared for the purpose of assessing whether Mr. Cragg was fit to stand trial. This assessment was ordered in June, 2014, after Mr.

Cragg was arrested on the arson matter. The court was concerned about Mr. Cragg’s mental health. Dr. Tomita determined that Mr. Cragg was fit to stand trial. He also noted that he and Dr. Healy had previously provided treatment to Mr. Cragg when he was serving his federal sentence. Dr. Tomita recalled that Mr. Cragg had a consistent diagnosis of personality disorder, “with frequent and severe levels of self-injurious behaviour.” [ 111 ] In June 2014, Dr. Tomita documented that: Mr. Cragg advised him that when he returned to Prince George he had again became paranoid.

He again relapsed into using crystal methamphetamine. Mr. Cragg reported feeling that people were following him through the downtown, and that he was fearful of getting shot. Mr. Cragg reported to Dr. Tomita that in March 2014 he thought that his grandmother and family were going to kill him, and that when they spoke to him Mr. Cragg felt that they were talking in a code. He consequently went to live with his cousin Tanya, for about 4 weeks, before moving into Mr. Callaghan's home. Mr. Cragg reported to Dr. Tomita that he lived with Mr. Callaghan for about 2 months before becoming suspicious of those around him.

Mr. Cragg reported that he felt that people were too caring and were forcing him to accept food or cigarettes. He reported becoming increasingly paranoid and provided a coherent but paranoid account which was consistent with what he told a psychiatrist at the University Hospital of Northern BC. Mr. Cragg reported ongoing feelings of persecution, including people sending messages through the telephone or through books to him whilst he remained on remand at PGRCC . [ 112 ] In the course of his Pre-Sentence Report, Dr. Morgan observed: Mr.

Cragg has previously been convicted of offences involving instrumental violence towards others; he reports that he has previously tried to kill at least 3 people. He has a history of making written death threats towards a female Youth Custody supervisor. He has a history of using weapons when at liberty, and improvised weapons whilst in custody. When I interviewed Mr. Cragg he expressed active homicidal ideation towards another inmate; he has previously been convicted of attempting to murder a fellow inmate and reports previously having thoughts to strangle his cellmate in VIRCC.

It is not unreasonable to conclude that future violence on the part of Mr. Cragg could result in a potential victim suffering serious or life threatening injury. Mr. Cragg has reported a desire to kill another human being out of a desire for notoriety. He stated at interview that his setting a fire in committing the index offence was an attempt to kill his elderly landlord, despite there being no readily identifiable motive, nor it being, in my opinion, the result of psychotic symptoms. The most likely victims of future violence on the part of Mr.

Cragg would be a fellow inmate of a provincial or federal penal institution. Such violence would most likely be planned and premeditated, and Mr. Cragg would probably not display any signs beforehand. He may fabricate, conceal and use an improvised weapon in carrying out such an attack. The motive for such an offence could be a victim annoying Mr. Cragg, a perceived slight, or Mr. Cragg's unmet need for notoriety. Given that Mr.

Cragg is currently incarcerated, and expressed homicidal ideation towards another named inmate to me at interview, there is an imminent risk that such violence may occur (I made the senior staff at PGRCC aware of my concerns, such that appropriate management steps could be implemented). A victim of such violence would be at risk of suffering life threatening physical injuries and serious psychological trauma. Given that Mr. Cragg has previously made targeted threats to kill a prison officer, it is not unreasonable to conclude that he may make similar threats in the future, or try to harm such a person. Mr.

Cragg also has a history of instrumental violence in the community, the motives for these offences being to secure finances to fund his continued use of illicit substances. Mr. Cragg could commit a similar act in the future, given that he continues to experience difficulties with substance use (which itself would be related to stress and his very limited ability to cope). The most likely victim would be an employee of a retail establishment (such as a liquor store) or a customer at such an establishment. Again, should Mr.

Cragg commit such an offence he would likely use weapons, such as a knife, and may try to conceal his identity by wearing a mask. A victim could suffer serious physical and/or psychological injuries. Future instrumental violence on the part of Mr. Cragg would likely lack any significant affective component (such as is seen in crimes of passion), and be more controlled and calculated. Mr. Cragg's thoughts about killing a person seem to me to relate to his desire to be seen as notorious, which in turn may be a function of his very poor sense of self identity and low self-worth (which in turn are features of

borderline personality disorder). It is highly concerning that he presents with a shallow affect, is able to manipulate others, is callous, lacks empathy and remorse, and displays criminal versatility, all of which are features of psychopathic disorder. There is also a risk that Mr. Cragg could commit more impulsive violent offences in the future. Such impulsive violence would be more likely when Mr. Cragg was intoxicated with drugs or alcohol, which would serve to disinhibit him and may make him more likely to misinterpret the actions or comments of others.

Such violence would be reactive as opposed to premeditated. [ 113 ] Dr. Morgan also used the HCR-20 which he described as a “set of structured professional guidelines for assessing risk for general violence.” He observed that: Evaluators use the guidelines to identify the presence and relevance of 20 basic risk factors for general violence: 10 reflect historical factors including criminal and psychiatric history, and psychosocial adjustment; 5 reflect clinical factors regarding current and recent functioning, and 5 reflect risk management factors regarding future adjustment. [ 114 ] Dr.

Morgan noted that in his HCR-20 assessment of Mr. Cragg, all of the 10 historical factors were present, four of the five clinical factors were present, as were all of the five risk management factors. [ 115 ] A Pre-Sentence Report was also prepared by Rick Coffin. This report detailed that Mr. Cragg was released from custody in December 2013. Initially, he did quite well in the community. Mr. Coffin noted that Mr. Cragg reported regularly to him. Mr. Cragg “exhibited a level of maturity beyond his years.” He was positive and displayed a willingness to change.

Things were going well until he moved up to Bear Creek in February 2014. In Bear Creek, Mr. Coffin was not able to directly supervise Mr. Cragg, and he was unable to access programming up there. Mr. Cragg also began to use alcohol and crystal meth after his release from custody. Assault of Donovan Felix-Ram [ 116 ] While in custody and after the court ordered a fitness assessment, Mr. Cragg was in custody at the Colony Farm Forensic Institute in Port Coquitlam. On June 29, 2014, Mr. Cragg assaulted Mr. Donovan Felix-Ram. They had been watching television together.

They had some discussions about the show they were watching, and then Mr. Cragg advised Mr. Felix-Ram there “was no way he could make him laugh.” Mr. Felix-Ram then “did a little dance and told him some jokes.” Mr. Cragg then came up behind him and choked him for “two minutes,” while Mr. Felix-Ram was punching him in the head, to try to get him to stop. Another patient signalled for the nurses to come and Mr. Cragg was pulled off Mr. Felix-Ram. Mr. Cragg advised the staff “that the assault was unprovoked and he had intended to kill Mr. Felix-Ram.” Attempted Murder of Mr. Bethel [ 117 ] On February 18, 2015, Mr.

Cragg was again an inmate at the Colony Farm Forensic Institute. At 2355 hours, he entered the cell of Mr. Ronald Bethel, a 76-year-old resident, jumped on top of him and attempted to strangle him. Mr. Bethel attempted to defend himself and poked Mr. Cragg in the eye with his finger. Mr. Cragg then took Mr. Bethel’s pillow and placed it over his face and tried to smother him. The staff pulled Mr. Cragg off of Mr. Bethel in order to interrupt the assault. Mr. Cragg was charged with attempted murder in relation to this offence. He waived this matter up to Prince George and entered a guilty plea.

This is one of the Predicate Offences. [ 118 ] Mr. Cragg reported to Dr. Lohrasbe that on February 18, 2015, he got it into his mind to put him (Bethel) out of his misery. Once he got the idea in his head, he was preoccupied with it. Mr. Cragg reported that the idea occurred to him later in the evening, and once it “arose, he remained engrossed in it and the pressure to enact it built up quickly.” [ 119 ] Mr. Cragg reported that he “waited until Buddy was in his room….again I had to work my way up to it”, and then he went into Mr.

Bethel’s room and jumped on top of him, firstly attempting to strangle him and then attempting to suffocate him. He stopped because he was interrupted and pulled off of Mr. Bethel. [ 120 ] Mr. Cragg also described to Dr. Lohrasbe that there was no arrangement to sell tobacco for drugs when he attempted to murder Mr. Tekano. He just “got the i

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