Her Majesty the Queen v. James Bernard Melvin Library Heading Judge: The Honourable Justice Peter P. Rosinski By Written Submissions Filed: August 23 v. September 6, 2019,, 2019 NSSC 334

SUPREME COURT OF Nova Scotia Citation: R. v. Melvin, 2019 NSSC 334 Date: 20191203 Docket: 447189 Registry: Halifax Between: Her Majesty the Queen v. James Bernard Melvin Library Heading Judge: The Honourable Justice Peter P. RosinskiBy Written Submissions Filed: August 23 and September 6, 2019, in Halifax, Nova ScotiaWritten Decision: November 28, 2019Subject: Admissibility of an offender’s historical records (convictions; PSRs; psychiatric, psychological andsubstance abuse records, etc.) at a Dangerous Offender hearing – s. 754(1) Criminal Code.Summary: Mr.

Melvin was convicted by a jury of conspiracy to commit murder and attempted murder. TheCrown gave notice that it sought to have him declared a dangerous offender. At such hearing theCrown would be relying on 12 binders of materials, which the court appointed assessor (expertforensic psychiatrist witness) will rely upon incoming to his opinions. The defendant argued that thecourt should not review the contents of the binders before the commencement of the hearing; andchallenged the admissibility of all of the contents of the 12 binders, if the purpose to which they wouldbe put is for the truth of their contents.

Issues:

(1) Should the court examine the contents of the 12 binders before the commencement of the hearingwhere they could be individually addressed?

(2) Are the contents of the binders admissible for the truth of their contents?Result:

(1) It is in the interests of justice, and common practice that sentencing judges have copies of proposedmaterials such as these available for their inspection before the commencement of a hearing –therefore I have superficially reviewed the materials;

(2) The court discussed the various bases for the admissibility of the nature of documents contained inthe 12 binders (criminal convictions; untried criminal offences; the contents of Correctional ServicesCanada and the Nova Scotia Correctional Services files regarding Mr. Melvin-including his pre-andpost-sentencing circumstances which entail records of his (mis) conduct within correctional facilities,and with staff generally, Pre-Sentence Reports, psychiatric, addictions, and health records).

Generally speaking it is anticipated that all such records, subject to individual exceptions which will bemore fully examined at the hearing, are admissible for the truth of their contents on various bases: thatthey are “credible and reliable” per s. 723(5) CC, and R v Gardiner, (SCC), [1982] 2SCR 368; the common law and statutory (s. 30 Canada Evidence Act) “business records” exception tothe hearsay rule; and the principled exception to the hearsay rule, per R v Khelawon, 2006 SCC 57, [2006] 2 SCR 787. SUPREME COURT OF Nova Scotia Citation: R. v.

Melvin, 2019 NSSC 334 Date: 20191203 Docket: 447189 Registry: Halifax

Between: Her Majesty the Queen v. James Bernard Melvin Admissibility of the Records for use at a Dangerous Offender Hearing Judge: The Honourable Justice Peter P. Rosinski By Written Submissions Filed: August 23 and September 6, 2019, in Halifax, Nova Scotia Counsel: Eric Woodburn, Christine Driscoll, Q.C. and Sean McCarroll for the Crown Patrick Atherton and Michelle James for the Defendant Introduction [ 1 ] After his conviction for conspiracy to commit murder and attempted murder of Terry Marriott Junior, the Crown gave notice that it was seeking to have Mr. Melvin designated a dangerous or long-term offender ( s. 753(5) CC ) pursuant to section 754 (1) (

b) of the Criminal Code (“ CC ”). This decision addresses the admissibility of evidence that the Crown wishes to rely upon at that hearing. Prologue [ 2 ] Not long after the jury found Mr. Melvin guilty on October 5, 2017, and well before February 2018, the Crown provided Mr. Melvin 12 binders of documentation upon which it wishes to rely in this Application. The binders have been relied on by Dr. Shabreham Lohrasbe, the Crown’s Forensic Psychiatrist in forming his opinions herein. In my October 11, 2018 letter, I had asked Mr.

Melvin’s counsel to examine the 12 binders, and by February 2019 identify what items if any they were objecting to as inadmissible. No response was forthcoming other than a late generalized objection in open court largely based on hearsay concerns. Defence counsel argued that I should not review the contents of the binders without first making a determination of the admissibility of each of those documents and associated factual assertions.

On August 13, 2019, (much closer to the beginning of the hearing which was set for September 23 – October 18, and December 16, 17 and 18, 2019 which had to be adjourned because Mr. Melvin’s counsels withdrew two days before the hearing’s commencement-see 2019 NSSC 306 .), I set dates for counsel to brief me on this issue. I have received written briefs from the Crown (an earlier brief filed was updated to August 23, 2019) and Defence (September 6, 2019).

As an aside, I note that the Crown would appear to have been correct when its counsel stated that often in their experience, counsel have agreed to permit the court to review the materials in advance of the hearing in order to assist the presiding judge. As Judge Derrick (as she then was) noted in footnote number 2, to her reasons in R v Shea , 2014 NSPC 78 : At a pretrial on July 3, 2013, Mr. Heerema indicated the Crown had had the opportunity to discuss with defence counsel the fact that when Dr.

Theriault prepared his report ‘he was sent numerous binders of materials by the Crown which we would anticipate would form the evidentiary basis at the subsequent hearing. In other dangerous offender hearings, often the court is given those documents in advance to assist the court in knowing, I guess, what the evidence is and to help streamline the procedure. We spoke with Mr.

Craggs about whether he would be okay with that in this case, and I believe he is.’ Defence counsel confirmed that he was, stating: ‘in other DO applications in which I've been involved, it's standard and I think it's important for the court to be able to read this stuff before the hearing starts so that things don't get chopped into little pieces. And, of course, it is the information which is the substance of Dr. Theriault's report.’ Background [ 3 ] Mr. Melvin was charged that he, on December 2, 2008 at Harrietsfield, Nova Scotia, did attempt to murder Terry Marriott Junior contrary to

section 239 CC ; and did conspire with Jason Hallett, an unindicted co-conspirator to commit the murder of Terry Marriott Junior, contrary to section 465(1)(

a) CC . He was convicted by a jury on both counts. I was the presiding Judge. [ 4 ] Shortly after his conviction on October 5, 2017, it seemed that the matter would proceed to a sentencing sometime in early 2018. However, after the Crown confirmed to Mr. Melvin’s then counsel, Phil Star, Q.C., that the Crown would seek a dangerous or long-term offender designation against Mr. Melvin, Mr. Star withdrew, and the matter languished until present counsel were retained on or about March 22, 2018. [ 5 ] On January 31, 2019 the Crown filed its Notice pursuant to section 754(1)(

b) CC . I am satisfied that the preconditions for the

Application to proceed have been met. Therein, the Crown must “[outline] the basis on which it is intended to found the application”. [1] [ 6 ] The Crown has set out the basis for its Application in writing as follows: 1. that Mr.

Melvin was convicted of “serious personal injury offences” and that he constitutes a threat to the life, safety or physical or mental well-being of other persons on the bases of evidence establishing: a. a pattern of repetitive behaviour by you, of which the offences for which you have been convicted form a part, showing a failure to restrain your 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 your behaviour; b. a pattern of persistent aggressive behaviour by you, of which the offences for which you have been convicted form a part, showing a substantial degree of indifference on the part of you respecting the reasonably foreseeable consequences to other persons of your behaviour, as set out in section 753 (1) (a)(

i) and (ii) CC ; 2. that the Crown will be tendering relevant evidence, including all information contained within or in relation to, Mr. Melvin’s: a. files relating to both predicate offences (two binders) [2] ; b. Correctional Services Canada file (five binders); c. Correctional Services, Nova Scotia, file – offender incidents (two volumes/binders); d. Community Corrections (Probation) file (one binder); e. previous convictions (documentation – five binders/volumes); f. Nova Scotia Health Authority file (psychiatry and addiction matters) (one binder/volume); g. a recent charge contrary to s. 270.01(1) (

b) CC arising in New Glasgow, Nova Scotia and pending trial March 7, 2019 in Provincial Court [3] ; h. July 18, 2018 appearance before Justice Peter Rosinski to appoint a forensic psychiatrist to perform an assessment of Mr. Melvin pursuant to

section 752.1 CC (recording of court proceeding). [4] 3. And further take notice that we are giving Canada Evidence Act notice with regards to any and all Correctional Services Canada Reports contained in the aforementioned binders; 4. And further take notice that without limiting the generality of the foregoing, the evidence in support of this application will include the following: a.

Predicate Offences (the facts are to be determined by Justice Rosinski pursuant to s. 724 CC , and additionally the impact of your conduct upon the family of Terry Marriott Junior may be outlined in victim impact statements) [5] ; b. Other criminal convictions (your history of criminal convictions and the underlying facts); c.

Other relevant information-including, but not limited to: i. pre-sentence reports prepared for your sentence hearings; ii. your entire file from Correctional Services Canada, including your psychological file (see five binders/volumes); iii. all reports, medical records, notes and files, relating to your treatment (including diagnoses, assessments and treatments for medical, social and mental health issues) that you have received; iv. testimony of witnesses from Correctional Services Canada, Nova Scotia Department of Justice Correctional Services, Nova Scotia Department of Justice Probation Services, and the Nova Scotia Health Authority – East Coast Forensic Hospital. 5. the evidence of Dr.

Shabehram Lohrasbe, MD, MBBS, FRCPC, forensic psychiatrist, including his Assessment Report dated September 15, 2018, and his opinion with respect to a variety of issues including, but not limited to: a. psychiatric disorders and related dysfunctions; b. substance abuse; c. your patterns of behaviour;

d. your risk to the community. [ 7 ] Although not stated expressly, the Crown appears to rely on s. 757 CC to introduce character and reputation evidence in relation to both the designation and sentence stages, which can include witnesses articulating the background information for why they hold the opinion that they do- see R v Gregoire ,

(1998) CCC (3d) 65 (Man.

CA) at paras 43-49; R v Neve , 1999 ABCA 206 at paras. 124-128 : “While psychiatric and character evidence must be relevant and may be admissible [at both the “threat” and “designation” stages] and while such evidence may be used to explain, for example, why the offences make a pattern, …they cannot be used to create the pattern in the absence of actual [pattern] conduct.” [ 8 ] It is important to recall that otherwise admissible extrinsic evidence (ie. using Neuberger’s characterization “non-criminal past conduct”) may be contextually relevant to examining whether the suggested “offences” do represent “pattern” conduct, as well as relevant when assessing the weight to be accorded to any expert opinion, which entails an assessment of the factual foundation in the evidence relied upon in support of the opinion, which may include relevant general background and contextual evidence, which I refer to as “ancillary” in nature. [ 9 ]

Section 757 CC is found in

Part 24- Dangerous Offenders – and reads: Without prejudice to the right of the offender to tender evidence as to their character and repute, if the court thinks fit, evidence of character and repute may be admitted

a) on the question of whether the offender is or is not a dangerous offender or a long-term offender; and

b) in connection with the sentence to be imposed or in order to be made under this Part. [ 10 ] Neuberger states at page 6 -15 [6] : “… the offender will always have the right to introduce character evidence in defence.

The provision allows the judge to allow character evidence both at the threshold stage for a dangerous offender determination… and at the sentencing stage… Background evidence explaining the evidence of reputation is relevant and therefore admissible if not unduly prejudicial.” Considerations regarding the Notice of Application for a declaration of dangerous/long-term offender status [ 11 ] The Crown has given notice that it intends to prove the existence of the constituent elements of subsections 753(1)(a) (

i) and (ii) CC beyond a reasonable doubt. [ 12 ] Both these subsections involve proof of a “pattern” of criminal behaviour – repetitive behaviour showing a failure to restrain oneself and a likelihood of causing death or injury, or inflicting severe psychological damage on other persons, and persistent aggressive behaviour showing a substantial degree of indifference respecting the reasonably foreseeable consequences to other persons of the behaviour, respectively. [ 13 ] Before designating an offender as “dangerous”, a court must also be satisfied beyond a reasonable doubt on the evidence that the offender’s conduct is intractable (meaning defined criminal behaviour that the offender is unable to surmount – R v Boutilier , 2017 SCC 64 at para. 27 ).

Notably, at both the designation and penalty stages, [7] an offender’s “treatability”, or conversely the intractability of the offender’s conduct, must be considered. [ 14 ] As Neuberger puts it at page 4-2: “ In Boutilier the court, referencing Lyons held that four criteria were explicitly required in the language of s.753(1) : 1- The offender must be convicted of and is to be sentenced for a ‘serious personal injury offence’. (The objective element of dangerousness); 2- the predicate offence must be part of a broader pattern of violence; 3- there is a high likelihood of harmful recidivism; 4- the violent conduct is intractable.

The last three criteria constitute the subjective part of the assessment of the threat posed by the offender, and the third and fourth are future oriented.”

[15] The purpose of the Notice is to clearly stipulate which subsections the Crown relies upon, thus identifying the constituentelements the Crown must prove beyond a reasonable doubt, and to correspondingly identify the nature of the evidence in support of theCrown’s case.[8] It is especially important for the Crown to state with precision those incidents it claims establish the touchstone“pattern” evidence in a case such as this, which presents a greater number of potential touchstone incidents of “pattern” evidence. [16] One must keep in mind that only incidents directly relevant to the constituent elements in s. 753(1)(a) (

i) and (ii) CC may berelied upon to establish a “pattern”. This inherently limits the number of touchstone incidents to be relied upon by a court in making thedetermination whether there is proof beyond a reasonable doubt allowing an individual to be designated a dangerous offender: “It is the sentencing judge – not the psychiatrists, or the Crown or the defence – who decides what the key elements of the pattern ofconduct are.” (para. 199 Neve) [17] Until recently, courts did not question the characterization of “pattern” conduct as described in R. v. Neve at paras. 109-111: criminal conduct akin to (similar in kind or in result) the predicate offence(

s) which itself must be a “serious personal injury offence”. [18] However, the reasoning in Neve on that point was displaced by the court’s reasons in R v Steele, 2014 SCC 61; see also JusticeBourgeois’s reasons in R. v. Shea, 2017 NSCA 43, at paras. 125-128, that it is an error for a judge to require “objective and comparativeseriousness between the predicate offence and the past conduct”.

As the Justices agreed in Shea: “The predicate offence must be a serious personal injury offence, but it need not be ‘objectively serious’ and it must follow that neitherneed be the pattern behaviour…put otherwise, the pattern offences need not be ‘objectively serious’ because the predicate offence neednot be.” [per Bryson JA in dissent at para. 53; Justices Bourgeois and Van den Eynden stated] … [116] Finding a pattern of behaviour is an essential component of a designation under s. 753(1). No pattern; no dangerous offenderdesignation.

In light of the errors raised by the appellant, all of which attack the application judge’s pattern analysis, it is helpful torevisit the patterns initially alleged. The appellant submitted that Mr.

Shea’s behaviour could be characterized in several ways: • as a pattern of unremitting institutional violence; • as a pattern of premeditated and instrumental violence against an outnumbered victim; • as a pattern of diverse, unselective and opportune violence; and • as a pattern of persistently aggressive behaviour. [117] The appellant had argued that any of the above patterns of behaviour were sufficient to support a dangerous offender designation.

The application judge considered each proposed pattern in turn, concluding on each, that the appellant had failed to prove the existenceof a pattern as defined in the Code, beyond a reasonable doubt. … [125] The appellant’s first ground of appeal is, in my view, persuasive. The appellant submits that the application judge’s reasonsdisclose that in determining whether a pattern existed, she incorrectly required objective and comparative seriousness between thepredicate offence and the past conduct. In other words, in order for there to be a pattern in which the predicate offence fell, Mr.

Shea’spast behaviours needed to be as serious as the aggravated assault. Based on the application judge’s analysis, in particular ¶ 435 and 456quoted above, I am satisfied that she did apply a comparative requirement. She relied on Neve in doing so. [126] At ¶ 53, my colleague explains why the reasoning in Neve respecting the need for comparative seriousness has been displaced bythe Supreme Court of Canada’s recent decision in Steele. I do not disagree. I also found helpful the comments of Karakatsanis J. (as shethen was) in R. v.

Tremblay, 2010 ONSC 486: 97 There is no requirement that the past conduct that makes up a pattern involve objectively serious offences, offences that aremore or less serious, or even that they be serious personal injury offences: R. v. Currie, above, at paras. 24-26; R. v. Newman, (NL CA), [1994] N.J. No. 54 (C.A.) at para. 79. Even two incidents with similarities are sufficient to form a pattern: R. v.Langevin, at para. 29. 98 To determine whether there is a pattern sufficient to predict future conduct, a trial judge may consider evidence of: (

i) what type of conduct was involved, (ii) who, generally, the victims were, and (iii) what motivated the offender to commit the offences. The Crown only need establish beyond a reasonable doubt that there is likelihood - not a certainty or a probability, but "a reasonablepossibility" - that the offender will cause death or injury or inflict severe psychological damage by failing to restrain his behaviour in thefuture.

To determine whether there is a present likelihood that the offender will fail to restrain his behaviour in the future, the court mayrefer to the offender's past failure to restrain his behaviour, together with any expert opinions: R. v. Currie at para. 22; R. v. Young(1998), (NL CA), 159 Nfld. & P.E.I.R. 136 at paras. 59-63 (C.A.); leave to appeal to the S.C.C. refused [1998]S.C.C.A. No. 122; R v.

Lyons, above, at para. 94. 99 Similarly, when considering the likelihood of causing death, injury or severe psychological harm, a Court may consider the impactof the offender's conduct on past victims to inform the likely impact on future victims. However, it is not necessary that the past

conduct led to actual injury. Attempted serious violence and likely serious endangerment of life, safety or physical well-being, orsevere psychological harm may well be adequate. [Emphasis added] [127] See also R. v. Bebonang, 2015 ONSC 195 , where Cornell J., after setting out the requirements of a pattern analysis,notes that “it is not necessary that the past conduct have led to actual injury” (¶ 33). [128] I am satisfied that the application judge erred in her pattern analysis when she required Mr. Shea’s past conduct to be as serious asthe aggravated assault.

Where I part ways with my colleague is with respect to the materiality of that error.

Prior to embarking onwhere our views diverge, I will address two other concerns with the application judge’s analysis—the use of “context” and “restraint”. [My italicization added] [19] To the extent that the Crown introduces evidence that it argues is material and directly relevant to establishing a “pattern” itmust prove the facts of such earlier relevant instances of “pattern” behaviour beyond a reasonable doubt-namely, any prior criminaloffences (convictions) or behaviour independently proved to be such at the hearing- see eg: R v Sullivan (1987) (Ont. CA); R v Lewis(1984), (ON CA), 12 C.C.C. (3d) 353 (Ont.

C. A.) at paras. 12-14 (this may include charges not laid or withdrawn) -Leave granted [1985] 2 SCR viii but the case was abandoned due to the death of the offender; R v MacInnis No.2, [1981] NSJ No. 531(NSSC); R v Crowe, 2014 NSSC 210 at para. 29[9]: “The evidence may include previous criminal convictions, evidence from preliminary inquiries on charges never brought to trial,evidence related to charges laid and otherwise disposed of or evidence relating to outstanding charges.

However disputed allegations ofcriminal conduct or other aggravating facts must be proved beyond a reasonable doubt. (R v Jack (BC CA), [1998]B.C.J. No. 458; R v D.E.D. (Dicks), [1996] N.S.J. No. 392; R v MacInnis (1981), (NS CA), 64 C.C.C. (2d) 553(N.S.C.A.); R v D.L.S., supra; and R. v. L.M.T., supra.)”. [20] As Neuberger states at p. 6-1 in “Assessing Dangerousness”:[10] “The Crown, though must still prove the elements for a dangerous offender designation contained in s. 753(1) beyond a reasonabledoubt: R v Jackson (1981) (NS CA), 23 CR (3d) 4 (NSCA) at para. 18.

This parallels the sentencing principle thatany aggravating facts- or facts that could increase the length of the sentence- must be proved beyond a reasonable doubt… The elementsforming part of the pattern can either include past convictions, necessarily already proved beyond a reasonable doubt, or other incidents,so long as they too are proved beyond a reasonable doubt….if the Crown is to rely on the evidence for proof of [the elements of]dangerousness, it must be proved beyond a reasonable doubt... any evidence constitutive of a pattern upon which a psychiatrist must forma professional opinion must first be proved beyond a reasonable doubt… [R v Shrubsall, 2001 NSSC 197 , [2001] NSJ No. 539(NSSC), evidence from withdrawn or stayed charges alleged are] also admissible…if these are to form the basis of a pattern they must beproved beyond a reasonable doubt”: Joseph A.

Neuberger, Assessing Dangerousness: Guide to Dangerous Offender Application Process, loose-leaf (Toronto: ThomsonReuters Canada, 2019) at pp.6-6 to 6-7. [21] Neuberger goes on to say at p.5-9:[11] “As to the evidence adduced to pass this threshold, it can either be evidence of past criminal acts, relevant extrinsic evidence orpsychiatric opinions. In terms of extrinsic evidence (i.e. non-criminal past conduct) and psychiatric opinion, the evidence cannotbe used as a basis of the actual pattern envisaged under sections 753(1)(a)(

i) and (ii); it can only be used to explain the pattern(i.e. as contextual, rather than foundational evidence).”[12] [My bolding added] [22] Correspondingly, extrinsic evidence which by definition is not adduced to prove the constituent elements of a “pattern”, butrather as contextual evidence, need only be proved as more likely than not (i.e. on a balance of probabilities standard)- s. 724(3)(

d) CC. The Court in Shea discussed “context” or extrinsic evidence, and stated: [82] The Crown argues that the judge neglected to consider how Mr. Shea’s psychopathy influenced his behaviour, revealing apattern of violence. As Dr. Theriault said, and the judge acknowledged, most people in the “dog-eat-dog” world of prison do not behavelike Mr. Shea, (Decision, ¶ 418). Mr. Shea’s expert, Dr. Starzomski, agreed that Mr. Shea’s anti-social personality was of “fundamentalimportance” and his psychopathy was a “particularly serious variant” of it.

Such individuals are “quick to return to crime” and show a“disregard for the consequences of their actions”. [83] The instrumental nature of Mr. Shea’s violence is important to understanding its pattern. As Dr. Theriault opined: … Mr. Shea does not use violence in an impulsive, emotional fashion but rather … as a tool when it suits his purposes. … Mr. Shea alsoshows a history of repetitive violence in the institutional setting … here it is likely that Mr.

Shea is using violence in an instrumentalfashion to advance his purposes within the offender subculture… . [Theriault Report, Appeal Book Vol VI, p. 145] [84] Dr. Theriault thought there was evidence that Mr. Shea’s trajectory of offending behaviour was towards more violence andmore severe offences over time. He concluded on this point:

… Although there is some evidence that Mr. Shea at times engages in impulsive reactionary violence much of his violence appears to be instrumental in nature and designed to enhance his reputation within the criminal subculture or to gain specific outcomes as was the extortion case in 2009. [85] Dr. Starzomski agreed in cross-examination that Mr. Shea’s violence may be instrumental to “preserve or gain face”, (Appeal Book, Vol. IV, p. 628). [86] The judge recognized that Mr.

Shea’s conduct was both impulsive and instrumental, (Decision, ¶ 411), but appears to have made no use of this evidence in the pattern analysis . [87] The Crown urges that failure to incorporate the psychological evidence into the pattern analysis at this point to explain Mr. Shea’s motives represents an error of law because that evidence gives context and explanation to Mr. Shea’s violent behaviour. It shows how much of that violent behaviour is instrumental, enhancing Mr. Shea’s status, (for example, Dr. Starzomski, Decision, ¶ 355). The expert evidence links Mr.

Shea’s attacks on guards and inmates, and explains his threats to both, as enhancing his status in the criminal subculture . [88] When applying contextual considerations in the institutional environment, the judge emphasized the oppressive circumstances of prison: [436] Another dimension of the pattern analysis must not be overlooked. Context is a critical aspect of determining if a pattern exists. ( Neve , paragraph 165 ) Mr. Shea’s context for much of his violent and aggressive behaviour has been in what Dr.

Theriault referred to as the “dog-eat-dog” world of the correctional system. [437] For example, on May 25, 2003, Mr. Shea was the victim of a serious assault by three prisoners in the Renous gym during recreation. He was taken for outside medical treatment and involuntarily transferred to Millhaven Penitentiary in Ontario. ( Reasons, paragraph 241 ) Just five days earlier, in a Progress Assessment dated May 20, 2003 Mr. Shea indicated he routinely kept “shanks” to protect himself as he was in a maximum security prison. ( Reasons, paragraph 240 ) [438] Mr.

Shea told the National Parole Board in 2007 that in relation to assaults on other prisoners, prison life “is not easy” and to survive he had to defend himself. ( Exhibit 7, page 383 – National Parole Board Decision, May 1, 2007 ) [439] So, although the evidence reveals that Mr. Shea has possessed shanks in prison, the Crown has proven beyond a reasonable doubt only one instance of him using one – the aggravated assault of Keithen Downey on June 15, 2010. Arguably it is evidence of restraint on Mr.

Shea’s part that his institutional violence – assaulting other prisoners – has not been shown to involve shanks even though the records establish he had them and presumably could have used them. [89] The Crown complains that the judge used the prison environment to minimize Mr. Shea’s violent behaviour. As Dr. Theriault explained, and the judge seemed to acknowledge, not all offenders behave in the aggressive, violent manner of Mr. Shea. But that behaviour is consistent with him being a dominant figure in the criminal subculture of the prison, which he accomplishes with threats and violence.

Contrary to the mitigating implication of being in a “dog-eat-dog” environment, the record overwhelmingly showed Mr. Shea to be a victimizer, rather than a victim . To cite a quote attributed to Mr. Shea, he “owns this jail”. [90] Even one of Mr. Shea’s witnesses corroborates the psychological picture: [327] D/S Avolese acknowledged that Mr. Shea was considered at the top of the prisoner “pecking order” in his Unit. He agreed on cross-examination that Mr. Shea would qualify as the “heavy”, could be trouble if he was not happy, and would influence others in the day room. D/S Avolese tried to resolve Mr.

Shea’s issues by exploring the reasons for his disobedient behaviour. … [91] As the Crown argues, the judge’s diminution of Mr. Shea’s violent behaviour in the “dog-eat-dog” world of the prison, implicitly acknowledges that Mr. Shea will act violently in the future. In fact, his conduct was designed to ensure that he was “top dog”. Why should this be excluded from the pattern analysis? The Crown argues that the judge’s view of context undermined the pattern analysis . [92] The Crown correctly observes that Mr.

Shea’s conduct is rooted in an anti-social personality disorder by which he has embraced criminal values that inform his conduct. Viewed in this context, the predicate offence was entirely consistent with Mr. Shea’s past violent behaviour and could help predict its recurrence . [93] In the Crown’s words, in each case the victim “… was either outnumbered, out-weaponed, or unsuspecting. Even the correctional officers who were punched or bitten were not suspecting it. Each case was unprovoked.

Each case was driven by a desire to achieve an enhanced status and to effect retribution or intimidation. ” [94] The Crown concludes that the application judge erred in her application of the pattern analysis, which properly applied, supported the Crown’s theory at trial of unremitting institutional violence . [95] The Crown is correct that the psychiatric evidence is helpful in showing the pattern of Mr. Shea’s behaviour . But that behaviour must demonstrate injury or endangerment, or risk of either . For reasons already described under the first issue, the judge concluded that it did not consistently do so.

While the judge did not advert to all the psychiatric evidence when conducting the pattern analysis, it does not matter because the pattern of violence or endangerment did not meet the statutory criteria. [96] Alternatively, the Crown submits that the Court has an obligation to find a pattern, if there is one, irrespective of the Crown’s theory . Developing its earlier submission regarding Mr. Shea’s prison violence, the Crown argues that all his behaviour, both in and out of prison, is violent: 117. Every incident was assaultive or violent.

The vast majority of the incidents were instrumental – the violence was not an end

itself. Rather, it was intended to either intimidate or seek retribution and/or foster status. Mr. Shea's early violence provides the beginnings of antisocial conduct and values. Practically every instance was unprovoked (notwithstanding the Respondent's rationalization). All victims were vulnerable – in some instances he used weapons; in other instances they were either lying down or asleep, or otherwise caught unaware; in some instances they were outnumbered. Either way, none involved a "fair fight". They were attacks. [97] The Crown adds, “The March 31, 2014 attack on Christian Clyke is important.

This attack occurred during a recess in the very dangerous offender application under appeal, during a break from Dr. Starzomski's testimony.” As usual, Mr. Shea was the aggressor. The victim was outnumbered. As the Crown submits, it is one more example of Mr. Shea’s refusal to restrain himself, even when very much in his immediate interest to do so. [98] These are fair submissions, embracing virtually all of Mr. Shea’s prior conduct.

But they were not made to the application judge, and we do not have the benefit of her consideration of this alternative theory . [per Bryson JA] … [129] The appellant argues that the application judge improperly considered the “dog-eat-dog” world of institutional life as minimizing the import of his in-custody behaviour, and this, in turn, influenced her finding that a pattern was not made out. This argument has been thoroughly canvassed by Bryson J.A. (see ¶ 88-95). I understand him to be agreeing with the appellant that the application judge’s use of “context” was problematic .

As with the first issue, and for the same reason, he finds that error to be non- material. [130] At this point, it is useful to examine the application judge’s use of context in further detail . The consideration of context in a pattern analysis is a given. Whether or not a pattern exists depends very much on the circumstances in which past behaviours have occurred.

The “context” in which behaviours have occurred may constitute the “common thread” weaving a series of behaviours into a pattern as contemplated by s. 753(1) (for example, here the appellant alleges a pattern of violence against unsuspecting victims, clearly requiring a consideration of the context in which behaviour arises). A consideration of the context in which behaviours have occurred is also relevant to the analysis of future risk . [131] There is no doubt that the application judge, relying on Neve , found a consideration of “context” to be a “critical aspect” of the pattern analysis.

That, on its face, is not problematic. However, it is also clear that the application judge did not use context as a means of determining whether similarity existed among various behaviours, or whether it reflected on risk. Rather, she used it as a means of explaining and, in my view, mitigating Mr. Shea’s “atrocious” institutional behaviour , injecting into the analysis a consideration of his moral blameworthiness. The following passage from her reasons is instructive: [436] Another dimension of the pattern analysis must not be overlooked.

Context is a critical aspect of determining if a pattern exists. ( Neve , paragraph 165 ) Mr. Shea’s context for much of his violent and aggressive behaviour has been in what Dr. Theriault referred to as the “dog-eat-dog” world of the correctional system. [437] For example, on May 25, 2003, Mr. Shea was the victim of a serious assault by three prisoners in the Renous gym during recreation. He was taken for outside medical treatment and involuntarily transferred to Millhaven Penitentiary in Ontario. ( Reasons, paragraph 241 ) Just five days earlier, in a Progress Assessment dated May 20, 2003 Mr.

Shea indicated he routinely kept “shanks” to protect himself as he was in a maximum security prison. ( Reasons, paragraph 240 ) [438] Mr. Shea told the National Parole Board in 2007 that in relation to assaults on other prisoners, prison life “is not easy” and to survive he had to defend himself. ( Exhibit 7, page 383 – National Parole Board Decision, May 1, 2007 ) [439] So, although the evidence reveals that Mr. Shea has possessed shanks in prison, the Crown has proven beyond a reasonable doubt only one instance of him using one – the aggravated assault of Keithen Downey on June 15, 2010.

Arguably it is evidence of restraint on Mr. Shea’s part that his institutional violence – assaulting other prisoners – has not been shown to involve shanks even though the records establish he had them and presumably could have used them. [132] With respect, the application judge’s contextual approach was erroneous.

On its face, s. 753(1) does not require the injection of “context” as used by the application judge into the determination of what behaviours may or may not properly fall within “a pattern of repetitive behaviour” or “a pattern of persistent aggressive behaviour.” [133] There are many “contexts” in which problematic (and sometimes criminal) behaviour is common—with youthful offenders; with those living in poverty; with those suffering from addiction or other mental health difficulties; and with those in historically marginalized groups, to name but a few.

The dangerous offender caselaw is replete with pattern analysis which finds as part of a “pattern of behaviour” youthful conduct, behaviour under the influence of drugs or alcohol, behaviour prompted by the effects of poverty and behaviour while incarcerated. Other than Neve, I have been unable to find any clear support for the use of the circumstances surrounding behaviour as a means of excluding it from a pattern analysis.

These “contexts” may be explanations for criminal choices, but they are not justifications or legal excuses . [134] The application judge relied on the following passage from Neve : 165 We agree that there will be cases where uttering threats will certainly form part of a pattern of behaviour sufficient to satisfy ss. 753(a)(

i) or (ii). However, to determine if specific offences fall within the proscribed patterns under s. 753, it is essential to assess the offences in context, having regard to what actually happened and why. For example, there is a world of difference between someone who conveys a threat directly to a police officer about a third party and the stalker who threatens his or her victim directly and then takes steps to carry out that threat.

[135] As the above indicates, at issue was whether certain threats, made by a youthful Ms. Neve, should be considered in the patternanalysis. The Court of Appeal concluded they should not be, explaining: 166 What were the circumstances surrounding the threat offences which Neve committed? The first incident occurred when Neve was15. While detained in a young offender facility with a friend of hers, another juvenile prostitute, Neve wrongly assumed that the personto whom her friend was speaking on the phone was a pimp who had assaulted the friend.

Neve took the phone, started swearing at himand threatened to blow his head off. Unbeknown to her, the person on the phone was a detective with the Calgary police. Neve wascharged, pled guilty the next day, and received a four month closed custody sentence. 167 The second offence occurred when Neve was 19. The transcripts from the original sentencing hearing reveal that a woman, TashaJohnson, had implicated Neve in a homicide. While speaking to a police officer investigating this matter, Neve informed him that shewould kill Johnson and throw her body in the ocean.

She told another officer that she was going to Vancouver and would find Johnsonand then send the officer a postcard with Johnson's head smashed in. Neve pled guilty to this offence and was sentenced to 30 days in jailto be served intermittently, a fine, and probation. […] 172 Viewed in context, what do these threats reveal? First, it must be remembered that to prove criminal culpability, it is not necessarythat the Crown prove that the offender intended that the threats would be conveyed to the victim, nor for that matter that the offenderactually intended to carry them out.

It is enough that the offender intended that the threats be taken seriously: R. v. Clemente, (SCC), [1994] 2 S.C.R. 758; R. v. McCraw, (SCC), [1991] 3 S.C.R. 72; and R. v. LeBlanc, (SCC), [1989] 1 S.C.R. 1583. 173 We are mindful of the fact that the sentencing judge found that when Neve made the threats, she meant to carry them out if theopportunity to do so arose. However, with respect, on this record, that finding could not reasonably be made.

In neither of the two threatoffences to which Neve pled guilty was it agreed in the statement of facts put to the court that Neve intended to carry out the threats ifthe opportunity arose. Nor did Neve testify to this effect at the dangerous offender hearing in reference to any of the threat offences andthe other evidence called could not reasonably support this conclusion being drawn even with the benefit of hindsight. […] 175 Third, and most importantly, is the context in which the threats were made. The first occasion involved a threat over the phone tosomeone Neve thought was a pimp.

Without trivializing Neve's conduct, her reaction in dealing with a pimp who had assaulted her friendis understandable, given the world of the juvenile prostitute, though not legally justifiable. … This was a young prostitute seeking todefend her friend, another prostitute, from a pimp through the use of verbal utterances over a telephone. More than one study hasrevealed the high degree of risk of harm to which juvenile prostitutes are subjected by their pimps. Nor can one ignore the limited abilityof authorities, despite their best efforts, to adequately protect juvenile prostitutes.

Viewed from this perspective, it is difficult tocharacterize what was essentially a pathetically inadequate attempt by a young girl to defend her friend from a pimp as behaviour fallingwithin the proscribed patterns of behaviour. [136] I question the reasonableness of the application judge’s reliance on Neve in these circumstances. From a factual perspective,there is an important distinction between the pattern of behaviour presented in relation to Ms. Neve, and that of Mr. Shea.

In the former,the pattern of behaviours consisted primarily of threats, which the Court of Appeal found were lacking in intent, and an objective abilityto implement. They were excluded from the pattern analysis based on those contextual considerations. Mr. Shea’s institutionalbehaviour, although certainly containing threats, is peppered with numerous incidents of actual physical violence. Unlike Ms.

Neve, hisrecord of lashing out unexpectedly demonstrates his threats of violence towards correctional officers and other inmates are not hollow. [137] Further, the unique legislative circumstances which existed in Neve give rise to some caution in the adoption of its contextualapproach. In Szostak, the Ontario Court of Appeal explained: 50 As noted above, the trial judge also referred to the decision of the Alberta Court of Appeal in Neve, an important case interpretingthe 1997 legislation.

There is a complication in applying Neve because the accused in that case was sentenced under the 1977 legislationbut her appeal was heard after the 1997 amendments came into force. Although Neve's predicate offences were committed before 1997,the court held that the appeal was governed in part by the new, more favourable, legislation by virtue of s. 44(

e) of the

InterpretationAct, R.S.C. 1985, c. I-21. But, Neve was also entitled to the benefit of those parts of the 1977 regime that were more favourable to her.The result, according to the Neve court, was that the court had discretion not to find the person to be a dangerous offender even if shemet the s. 753 definition and further discretion not to impose an indeterminate sentence even if the person was declared to be a dangerousoffender and to impose instead a conventional sentence. [138] I am satisfied that the application judge’s use of “context” was material in her conclusion that Mr. Shea’s institutional behaviourdid not constitute a “pattern of behaviour” as contemplated by both ss. 753(1)(a)(

i) and (ii). [per Bourgeois JA] [My italicization added] [23] Let me next examine the admissibility requirements of the evidence the Crown may seek to introduce in this case. The Crown and Defence positions regarding potential hearsay objections to materials filed by the Crown/testimony by Crownexpert and other witnesses [24] In its Notice, the Crown has set out specifically that it will tender relevant evidence based on Mr. Melvin’s: 1. criminal record (two binders in relation to the predicate offences of December 2, 2008; five binders regarding documentation

of previous convictions); 2. outstanding,

section 270.01(1)(

b) CC charge, which was pending trial, and is admissible if the requirements of section 725 (1) (b).1) CC are met; 3. misbehaviour while in provincial and federal jails (which could include breaches of administrative rules/directions by staff, and behaviour that amounts to criminal conduct – under the Criminal Code or the Controlled Drugs and Substances Act ) – five binders regarding Correctional Services Canada (which includes his psychological file), and two binders regarding Nova Scotia Correctional Services, which could include his time in custody as and adult and a youth; 4. one binder of Nova Scotia Community Corrections materials (presumably including Pre-disposition Reports and Pre- sentence Reports, possibly his status/ behaviour while on probation); 5.

Nova Scotia Health Authority file generally, (psychiatry and addiction matters – one binder); and which would include specifically the East Coast Forensic Hospital materials as well. [ 25 ] The Crown has also indicated that it will be presenting witnesses from: Correctional Services Canada, the Nova Scotia Department of Justice Correctional Services, Nova Scotia Department of Justice Probation Services, and the Nova Scotia Health Authority – East Coast Forensic Hospital. [ 26 ] Given that I am providing this preliminary decision as a guide for counsel generally, I will restrict my comments to those areas that counsel have identified as specifically being in dispute, and will focus my comments on legal principles rather than factual matters, which remain to be established before me at the hearing. [ 27 ] The Crown and Defence each characterize the hearsay admissibility dispute similarly: (Crown) The offender objects to the admission of the institutional records contained in all the proposed volumes.

He objects to the reports that detail misconduct, discipline and safety and security management within the institution where James Melvin has been incarcerated either during pretrial/presentence custody or while serving sentence (provincially and federally). He further objects to any and all materials disclosed to the defence and used by Dr. Lohrasbe in his assessment filed with the court. [ 28 ] The Crown submits that there are four ways in which these records may be admitted for the truth of their contents: 1. as hearsay on the basis that they are “credible and trustworthy”; 2. pursuant to

section 30 of the Canada Evidence Act ( CEA ); 3. pursuant to the common-law business records exception; and 4. as a principled exception to the hearsay rule. [ 29 ] The Defence’s position is that: Crown seeks to rely upon several volumes of materials and records pertaining to Mr. Melvin.

They can be generally categorized as follows: • Health Authority records • materials related to previous convictions [including the relevant surrounding circumstances found or accepted by a court] • Corrections Canada records • Probation records The records of materials tendered by the Crown are, in the defence submission, hearsay and therefore prima facie inadmissible in a criminal proceeding.

The defence does acknowledge that the dangerous offender hearing is a sentencing procedure, rather than a trial, and that the rules of evidence are more relaxed in sentencings. “However, that does not translate into a situation where all hearsay is admissible… Although the Crown submissions attempt to deal with the admissibility of the records as a whole, defence submits that to do so is in error.

The court must assess the records individually, as different concerns arise, depending on the nature of the documents… [ In R v Williams , 2018 ONCA 437 , leave to appeal refused [2019] SCCA No.164] the Ontario Court of Appeal discussed the difficulties with using police synopses, which included ‘evidentiary frailties inherent in the nature of the police synopsis’ (para 55) and urged using caution… The defence further submits the same reliability concerns expressed by the court in Williams attach to the correctional records related to incidents within the institution ( see R v JKL , 2012 ONCA 245 at para 82 ) … The same can be said in our submission of many of the records here.

For example, records that contain “risk assessments”, apparently completed by correctional staff and that contain comments regarding mental health diagnoses – often in inflammatory language. We know nothing of the source of that information, or anything about the purported qualifications of the authors.

In those circumstances it is impossible to meet the credible and trustworthy standard – see for example R v AB , 2017 ONCJ 419 . … It is the defence position that should the court conclude that the documents qualify as business records generally, the exceptions set out in section 30 (10) operates to exclude a significant portion of the materials upon which the Crown purports to rely. With respect to Mr. Melvin’s previous convictions, the Crown seeks to tender police generated documentation such as Crown brief reports and police notes.

These documents were clearly created for the purpose of what was then an investigation. As such they are exempt from the application of

section 30. Similarly, the corrections records contain reference to/reports of other alleged incidents within the institution. These documents, we submit were created for the purpose of investigating alleged institutional disciplinary infractions. These

investigations can result in discipline hearings and penalties. The Crown suggestion that they are not “investigations” in the usual and ordinary meaning of that word, is simply incorrect (see eg. R v Farhan , 2013 ONSC 7094 at paras. 12-19 ) … It is not simply a matter of the documents being prepared by professionals or a matter of their ‘official” nature.

A report that relies upon information from a federally sentenced inmate, with an unknown criminal record, an unknown track record for dishonesty, does not gain the veil of reliability because it is signed by a correctional officer, in the defence’s respectful submission.” What is “hearsay”? [ 30 ] I can do no better than to adopt Justice Watt’s commentary from his text at pp. 385 – 6 [13] : “The essential defining features of hearsay are twofold: i. the out-of-court statement is introduced to prove the truth of its contents; and ii. the absence of a contemporaneous opportunity to cross-examine the declarant.

There are at least four potential sources of error when a witness describes an event that s/he claims to have observed: i. perception; ii. memory; iii. communication; and iv. sincerity. In the usual course, the trier of fact will consider these testimonial factors in deciding what weight, if any, to assign to a witness's evidence.

To diminish the potential for error because of the dangers inherent in a witness's description of a previous event, a witness is generally required to testify under three conditions: i. personal presence before the trier of fact; ii. under oath or its equivalent; and iii. subject to cross-examination. The principal reason for the exclusion of hearsay is the absence of a contemporaneous opportunity for cross-examination. It is cross- examination that may best expose defects in perception and memory, as well as ambiguity in communication and want of sincerity.

The classic hearsay paradigm consists of four elements: i. declarant; ii. recipient; iii. statement; and iv. purpose. The declarant is the person, usually not called as a witness in the proceedings, who makes a statement that a party seeks to adduce in evidence. The recipient is the person who has received the statement from or heard the statement by the declarant and who is summoned as a witness by a party to give evidence of the statement before the trier of fact .

There is greater difficulty in fashioning an acceptable and exhaustive definition of “statement”, at all events one that reaches beyond theobvious. A statement should include, at least, an oral or written assertion of the declarant, and non-verbal conduct of the declarantintended by the declarant to be an assertion. Implied assertions are also covered by the rule. The element of purpose is critical to the application of the hearsay rule. The exclusionary rule does not bar reception of every statementmade by a declarant that a party seeks to introduce in evidence through the testimony of the recipient.

The statement is only excluded bythe rule when offered for the purpose of proving the truth of its contents. The hearsay rule does not exclude a statement offered asoriginal evidence, viz., for a relevant purpose other than to prove the truth of its contents.[14] A review of the jurisprudential treatment of hearsay in sentencings [31] Often experts are presented with hearsay statements (verbal or documentary) purportedly as a foundational basis for theiropinions.

Whether they are admissible is context specific and largely depends on the evidentiary purpose for which they are putforward.[15] Firstly, let me say that in my opinion, for any criminal offence conviction the Crown wishes to rely upon as proved beyonda reasonable doubt, only court-certified copies of the Informations and transcripts, or some equally authoritative evidence will besufficient[16]. [32] In the context of a simple sentencing, I have previously considered hearsay (s.723 CC) and other potential limitations onevidence that arise in pre-sentence reports (s. 721 CC), “any relevant information”, including representations or submissions made by theparties (s. 726.1 CC), and statements made personally by offenders to the court (s. 726 CC).[17] [33] Section 723(5) CC reads: Hearsay evidence is admissible at sentencing proceedings, but the court may, if the court considers it to be in the interests of justice,compel a person to testify where the person (

a) has personal knowledge of the matter; (

b) it is reasonably available; and (

c) is a compellable witness. [34] The prevailing common-law position regarding sentencings, established in R v Gardiner, (SCC), [1982] 2 SCR368 at paras 107 – 114 per Dickson J, as he then was, is that hearsay may be accepted “where found to be credible and trustworthy”provided “the obtaining and weighing of such evidence should be fair”.

In my opinion, the sentencing provisions ss. 723 and 724 CCwere intended to codify and reflect those considerations – correspondingly the arguably stricter requirements of the principled exceptionto the hearsay rule required in a trial (guilty or not guilty) context, as referenced in R v Khelawon, 2006 SCC 57 and its progeny, aregenerally not applicable to sentencings, unless the hearsay is offered for the purpose of establishing aggravating facts regarding thecircumstances of the commission of the predicate offence(s).

The Khelawon admissibility standards are also not applicable to any earlierconduct that the Crown relies on as specific touchtone instances of “pattern” conduct (since he is not being sentenced for that conductper se) which still must be proved beyond a reasonable doubt however.[18] [35] This makes sense particularly since sentencing judges should be entitled to have the fullest information reasonably available torender a just sanction flowing from the “complicated calculus” involved- see also R v Jones (SCC), [1994] 2 SCR 229: “In the case of dangerous offender proceedings, it is all the more important that the court be given access to the widest possible range ofinformation in order to determine whether there is a serious risk to public safety.

If there is, the dangerous offender sentencing allows thejustice system to more precisely tailor the actual time served by the offender to the threat that he poses to society… If the sentencingjudge is to obtain the accurate assessment of the offender that is necessary to develop an appropriate sentence, he will have to have at hisdisposal the broadest possible range of information.” [My italicization added] [36] Another example thereof found in the jurisprudence is that, generally speaking, in dangerous offender proceedings, theconfession rule (R v Oickle, 2000 SCC 38) does not apply to statements made by an offender to probation officers, classification officers,parole officers, prison guards, psychiatrists etc. -R v Wilband, 2 C.C.C. 6 (SCC); see also R v Campbell, (ON SC),[2003] O.J.

No. 4085 (SC) (affirmed [2010] O.J. No. 2448 (CA)) per Casey Hill J. wherein he concludes at paras. 29-31: “In practice, in sentencing hearings, the exclusionary rules of evidence, such as the rules respecting hearsay, prior consistent statements,collateral facts, etc. are not applied with the same rigour as during a criminal trial… The touchstone for sentencing procedure isflexibility with diminished procedural impediments to the acquisition of the fullest possible information regarding the offender.

Thespectre of mandatory confessional voir dires in sentencing hearings respecting an offender statements to a probation officer authoring apresentence report or to a police investigator would not advance sentencing objectives. In most dangerous offender sentencing hearings…there are prior statements made to classification officers, parole officers and prison guards.

The prosecution would rarely be in a positionto produce the chain of persons in authority to in contact with the inmate prior to his statement and frequently the recipient of thestatement must rely on his or her historical recording of the utterance without present recovery of the specific circumstances of the

statement… This said, concerns about evidentiary reliability are not merely abandoned in a sentencing hearing. The court remainsvigilant to act upon reliable evidence… A sentencing court is empowered, at common law, to exclude unreliable evidence, evidence notproperly considered creditworthy, and to exclude ‘evidence obtained in circumstances such that it would resulting in fairness if theevidence was admitted at trial’: R v Buhay, (2003) 174 CCC (3d) (SCC) at 115-6.” [37] In

summary, sentencings must proceed fairly but should not bear the full-fledged characteristics of trials, as a matter of judicialeconomy and given their more focussed purpose. [38] Hearsay evidence can be relevant to various matters, and consequently whether such hearsay is admissible or not, largelydepends on the purpose for which the hearsay is being proposed as evidence, and the source of that hearsay. [39] For example: 1. is the potential hearsay evidence presented as an “admission” by an offender (such informal admissions made topsychiatrists or psychologists who have conducted clinical interviews with an offender are also to be reviewed on the “credible andtrustworthy” standard-see eg.

R v Bisson, 2017 ONCJ 419 at para. 20.

Formal admissions of any of the “allegations contained in thenotice” filed by the Crown are also admissible pursuant to s. 754 (3) CC);[19] 2. merely for the fact that a statement was made; 3. in support of a suggested “extrinsic evidence” finding; or 4. as relevant to establish the constituent elements of a “pattern” of dangerousness? [40] The Ontario Court of Appeal has stated in R v Williams, 2018 ONCA 437 (leave to appeal denied [2019] SCCA No. 164),regarding the admissibility for the truth of their contents of police synopses: 42 In instances such as the present case, the Crown will seek to admit and rely upon police synopses to establish the factual basis of priorconvictions in support of a dangerous offender application.

This is often because transcripts of those prior trials, pleas and sentencinghearings may no longer be available or do not contain sufficient detail to permit a proper analysis of the offender's conduct. However,police synopses are often prepared at the time of arrest, or in the early stages of a criminal prosecution. A fuller appreciation of the factsoften emerges later, such that the facts set out in the synopses will often diverge from the facts proven at trial or admitted on a guiltyplea: R. v. Gibson, 2012 ONSC 5527, [2012] O.J. No. 4612 (admissibility ruling), at para. 8; R. v.

Gibson, 2013 ONSC 589, [2013] O.J.No. 490 (dangerous offender designation), at para. 32; R. v. Keizs, 2013 ONSC 4322, [2013] O.J. No. 3572, at para. 41, aff'd 2015ONCA 905, 342 O.A.C. 79. 43 Mr. Williams argues that it was an error for the sentencing judge to have admitted the various police synopses, and that thesentencing judge further erred in finding their contents to be proven beyond a reasonable doubt. Without the synopses, which were reliedupon by the sentencing judge in identifying the requisite pattern of behaviour under s. 753(1)(

a) and by Dr. Klassen in writing his report,the sentencing judge could not have concluded that the statutory elements of dangerousness had been satisfied. 44 Mr. Williams relies on R. v. J.K.L., 2012 ONCA 245, 290 O.A.C. 207, at paras. 88-94, leave to appeal refused, [2013] S.C.C.A. No.116, which was not placed before the sentencing judge by trial counsel. In J.K.L., this court expressed the view that it is difficult toconclude that a Crown synopsis, standing alone, is an accurate reflection of events.

The court noted that the sources of informationcontained in the synopsis may not be specified and an assessment of the reliability and trustworthiness of the information containedwithin may be difficult or impossible. 45 I agree that there are issues respecting the reliability of information contained in synopses, be they labelled as police or Crownsynopses. However, I do not agree with Mr. Williams' submission that synopses are wholly inadmissible at a sentencing hearing. Asfurther explained below, the court must take a generous approach to admissibility in a dangerous offender proceeding.

However, oncethe evidence has been admitted, the court must then grapple with the appropriate weight to be accorded to the information containedwithin the synopses. In the present case, the sentencing judge properly admitted the police synopses, but erred in finding that theircontents had been proven beyond a reasonable doubt. However, I conclude that there is no reasonable possibility that this error had anyimpact on the outcome. I would therefore dismiss the appeal. 1.

Did the sentencing judge err in admitting the police synopses? 46 In my view, the sentencing judge correctly admitted the police synopses tendered in the dangerous offender proceeding. 47 It is well established that the strict rules of evidence applicable at trial do not govern sentencing proceedings. Once guilt has beenestablished beyond a reasonable doubt, the task of the sentencing judge is to tailor a sentence that is appropriate to the particularcircumstances of each offender. For that reason, the sentencing judge "must have the fullest possible information concerning thebackground of the [offender]": R. v.

Gardiner, (SCC), [1982] 2 S.C.R. 368, [1982] S.C.J. No. 71, at p. 414. 48 A dangerous offender proceeding is part of the sentencing process and is governed by the same sentencing principles, objectives andevidentiary rules: R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at para. 53; R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357, atpara. 23; R. v. Jones, (SCC), [1994] 2 S.C.R. 229, [1994] S.C.J. No. 42, at pp. 279, 294; R. v. Ziegler, 2012 BCCA 353,[2012] B.C.J. No. 1755, at para. 7, leave to appeal refused, [2014] S.C.C.A. No. 491.

As explained by Gonthier J. in Jones, at p. 290, theimportance of the sentencing judge having access to the fullest possible information about the offender is heightened in the context of adangerous offender application: In the case of dangerous offender proceedings, it is all the more important that the court be given access to the widest possible range ofinformation in order to determine whether there is a serious risk to public safety. If there is, the dangerous offender sentencing allows thejustice system to more precisely tailor the actual time served by the offender to the threat that he poses to society.

The overriding aim is

not the punishment of the offender but the prevention of future violence through the imposition of an indeterminate sentence. 49 As with any sentencing hearing, hearsay evidence is admissible so long as it is found to be "credible and trustworthy": Gardiner, at p.414. This common law principle is codified in s. 723(5) of the Criminal Code. Character evidence is also specifically admissible in adangerous offender proceeding pursuant to s. 757 of the Criminal Code. 50 I do not, as suggested by Mr. Williams, read J.K.L. as suggesting that police synopses are wholly inadmissible. Rather, in the passagequoted by Mr.

Williams, the court in J.K.L. highlights the reliability threshold that evidence must meet in order to be relied upon, andthe concerns that arise in this regard due to the nature of police synopses. I agree with those concerns and address them further below. 51 In Gibson (admissibility ruling), the sentencing judge admitted CAS and correctional records in an advance admissibility ruling priorto a dangerous offender hearing. He was satisfied that the records, which included police synopses, met the "credible and trustworthy"threshold.

For the same reasons, I am satisfied that it was appropriate for the sentencing judge to admit the police synopses. 2. Did the sentencing judge err in finding that the facts contained in the police synopses were proven beyond a reasonable doubt? 52 In Gibson (admissibility ruling), the sentencing judge cautioned, however, that portions of certain records, such as the policesynopses contained in the correctional records, may be less reliable.

For that reason, when the admissible evidence is subsequentlyconsidered on the merits, the court must carefully consider the weight to be accorded to those portions of the records. 53 Despite the broad approach to admissibility at the sentencing stage, it is not the case that the offender is deprived of all protections:Jones, at p. 292. The Crown must prove disputed aggravating facts beyond a reasonable doubt: Jones, at p. 292, quoting Gardiner, at p.414; see also s. 724(3)(

e) of the Criminal Code. The corollary to this principle in a dangerous offender proceeding is that the Crown mustprove the statutory elements of dangerousness beyond a reasonable doubt: Joseph A. Neuberger, Assessing Dangerousness: Guide to theDangerous Offender Application Process, loose-leaf (Toronto: Thomson Reuters Canada, 2017), at pp. 6-5 to 6-6; Boutilier, at para. 36,n. 1; R. v. Jackson (1981), (NS CA), 61 C.C.C. (2d) 540 (N.S.C.A.), at p. 544, leave to appeal refused, [1982]S.C.C.A.

No. 423; Ziegler, at para. 6. 54 As described above, the sentencing judge accepted the entire contents of the police synopses as proven beyond a reasonable doubt. Inmy view, this was an error. The sentencing judge ought not to have treated this as an all or nothing decision. The synopses were properlyadmitted but the contents had to be considered carefully before being relied upon. Some basic facts set out in the synopses can be usedfor the purposes of establishing details such as dates and ages: Gibson (admissibility ruling), at para. 8; Gibson (dangerous offenderdesignation), at para. 34.

Other facts, where support can be found in other parts of the record, can likewise be relied upon: Gibson(dangerous offender designation), at para. 34.

This does not, however, lead to the conclusion that the entire contents of the document canbe taken as proven beyond a reasonable doubt. 55 Due to the evidentiary frailties inherent in the nature of a police synopsis, caution is required when the sentencing judge isconsidering whether the contents of those records can, along with the rest of the record, provide the basis for a finding that the statutoryelements of dangerousness have been proven beyond a reasonable doubt. The incidents set out in the synopses must be considered in lightof all of the evidence led at the hearing.

Certain parts of a synopsis may find support and confirmation, either directly or by reasonableinference, in other parts of the record. If so, it is open to the sentencing judge to rely on those incidents as evidence in support of afinding that the statutory elements of dangerousness, such as the requisite pattern of behaviour, are made out. [My italicization added] [41] In Williams, (at paras. 42 and 51) the court approvingly referred to Justice Code’s decision in R v Gibson, 2012 ONSC 5527,wherein he stated: 4 I am satisfied that the documents are all admissible.

They were obtained by the Crown from six agencies and can be summarized asfollows:

i) Between July 1990 and February 1992, the Children's Aid Society of Toronto (the CAS) kept a file on P.G.'s family. P.G. wasfourteen years old when the file was opened. He had been the subject of certain complaints, and one criminal charge, alleging sexualmisconduct with other children. The one criminal charge was apparently dismissed at a court proceeding and the CAS never sought orobtained any supervisory orders relating to the family.

The parties agree that these records are not admissible to prove the fact of anysexual misconduct by P.G. as none of these early complaints ever resulted in a conviction and the alleged sexual misconduct cannototherwise be proved to the requisite criminal standard. See: R. v. Lewis (1984), (ON CA), 12 C.C.C. (3d) 353 (Ont.C.A.); R. v. Pike (2010), 2010 BCCA 401 , 260 C.C.C. (3d) 68 (B.C.C.A.); R. v. S. (C.L.) (1999), (ON CA),133 C.C.C. (3d) 467 at paras. 26-31 (Ont. C.A.).

The Crown seeks to rely on the CAS records only to show the dynamics of the P.G.family at the time and to show that counseling was made available to P.G. and his response to it; ii) The program that P.G. was referred to by the CAS was known as "SAFE-T" (Sexual Abuse: Family Education andTreatment Program) and it was run by the Thistletown Regional Centre of the Ministry of Community and Social Services. They kept afile on P.G., from January 1991 until April 1991, concerning his response to the program that they offered.

P.G. would have beenfourteen years old at the time; iii) P.G.'s first Youth Court conviction was on October 31, 1991, for carrying a concealed weapon. He was fifteen years old andwas placed on probation for nine months. As a result, the Ministry of Community and Social Services kept a file on P.G., concerning hisprobation, until the order expired on July 31, 1992. By the end of this period, P.G. would have just turned sixteen years old;

iv) P.G.'s more significant Youth Court convictions were entered on November 25, 1993. He was now seventeen years old andwas sentenced to nine months open custody and was placed on probation for fifteen months in relation to three counts of invitation tosexual touching and one count of abduction of a child under age fourteen. The charges appear to have been laid in March 1993, whenP.G. was sixteen years old, and an older adult co-accused was also charged. The probation order required P.G. to "continue treatmentand counselling" and it referred to an existing program and report from the J.D.

Griffin Adolescent Centre that appears to have been filedwith the Court at the time of sentencing. The Ministry of Correctional Services kept a file on P.G. relating to this second period ofprobation;

v) During the nine-month period of open custody, from November 25, 1993 until August 24, 1994, P.G. was referred to theHincks-Dellcrest Centre of the Ministry of Correctional Services. They kept a file which includes a large number of "psychiatric notes"from the senior psychiatrist at the Centre, Dr. Sowa. P.G. was eighteen years old at the end of this open custody period of his sentence; vi) As noted previously, P.G. had attended a program at the J.D. Griffin Adolescent Centre in late 1993, while awaiting trial andsentencing on the various charges that he was facing.

They kept a file on him which includes two "assessment reports" from socialworkers named Arlene Sager and Chris Brown. It appears that they continued to see P.G. during 1994, while he was serving his nine-month open custody sentence, as their reports are both dated in 1994. 5 The above records represent P.G.'s only prior contacts with the criminal justice system or with any agencies that have provided himwith counselling or with psychiatric treatment. The present offences, on which he awaits sentencing, were committed in the summer andfall of 2009. At that time, P.G. was thirty-three years old.

He is now thirty-six years old. It can be seen that there is a fifteen- year gapbetween 1994, when P.G. completed his only previous custodial sentence, and 2009 when the present offences were committed. 6 I am satisfied that all of the above documentary records tendered by the Crown are admissible. They are clearly relevant to thedangerous offender Application as they provide evidence of P.G.'s only prior correctional history, his only prior treatment history, andhis only prior record of criminal conduct. Although the records are hearsay, they are admissible at a sentencing hearing.

The dangerousoffender Application is a sentencing hearing and it is the rules of evidence relating to sentencing that govern. See: R. v. Wilband, (SCC), [1967] 2 C.C.C. 6 at 9-10 (S.C.C.); R. v. Jones (1994), (SCC), 89 C.C.C. (3d) 353 at 394, 396 and 398(S.C.C.); R. v. Johnson (2003), 2003 SCC 46 , 177 C.C.C. (3d) 97 at para. 23 (S.C.C.). 7 The common law allows hearsay to be admitted at a sentencing hearing, provided it is "credible and trustworthy" and provided theCrown takes on the burden of proving any aggravating factors that are disputed to the normal criminal standard of proof beyondreasonable doubt.

See: R. v. Gardiner (1982), (SCC), 68 C.C.C. (2d) 477 at 514 (S.C.C.); R. v. Albright (1987), (SCC), 37 C.C.C. (3d) 105 at 111 (S.C.C.). 8 I am satisfied that the records tendered by the Crown are "credible and trustworthy" in the sense that they were preparedcontemporaneously by professionals who were carrying out important and responsible public duties. See: R. v. Gregoire (1998), (MB CA), 130 C.C.C. (3d) 65 at paras. 53 and 62-3 (Man. C.A.); R. v. Piché (2006), 2006 ABCA 220 , 210C.C.C. (3d) 459 at paras. 9-20 (Alta. C.A.).

There may be certain parts of certain records that are less reliable and that are not entitledto any weight. For example, police synopses of the offences that P.G. was convicted of in 1993 form part of the correctional records. Thefacts set out in a police synopsis at the time of arrest are often not reliable and do not always reflect the facts that are later proved at trialor admitted on a guilty plea. See: R. v. L. (J.K.) (2012), 2012 ONCA 245 , 290 O.A.C. 207 at paras. 88-94 (Ont. C.A.); R. v.Ziegler, 2012 BCCA 353 at paras. 61-2 and 76.

The Crown accepts this proposition and only relies on the police synopses to establishthe dates of the offences and the dates of P.G.'s arrest and not to prove the facts of the offences. I am satisfied that the police synopsesare reliable for these limited purposes. 9 Ms. Choi does not dispute the admissibility of many of the records. She mainly attacks their weight.

She agrees that the two experts,who will both testify at the sentencing hearing, can refer to the records and can indicate what weight they have attached to the records.Her only real concerns, that relate to admissibility in her submission, are that the CAS records not be used to prove earlier sexualmisconduct by P.G. in 1990 and that the authors of some of the assessments made of P.G. in 1993 and 1994 be made available for cross-examination. The former point, concerning the limited use of the CAS records, is conceded by the Crown, as I have already noted earlierin these reasons.

The latter point, concerning the alleged need to produce some of the authors of the 1993 and 1994 assessments, isprovided for in certain circumstances both at common law and pursuant to s. 723(5). It is not a point that relates to the admissibility ofthe documents. In R. v. Albright, supra at 114-115, Lamer J. (as he then was) gave the unanimous judgment of the Court and held that incases where an admissible hearsay document's "accuracy is seriously put in issue, it would be incumbent upon the Crown to callwhomever signed the [document] and make him or her available for cross-examination by the accused".

Section 723(5) of the CriminalCode similarly provides that "hearsay evidence is admissible at sentencing proceedings, but the court may, if the court considers it to bein the interests of justice, compel a person to testify". 10 I will determine, at the sentencing hearing, whether the accuracy of the 1993 and 1994 assessments has been "seriously put in issue"and whether it is "in the interests of justice" to have the Crown produce their authors for cross-examination, once I have heard all of theevidence that will be called and once I have read the written arguments (or facta) to be filed by the parties prior to the hearing. 11 For all these reasons, the documentary records tendered by the Crown in Exhibits 3 and 4 are admissible at the sentencing hearing.

Ihave made no findings, at this stage, as to the weight of the documents which all relate to a time period when P.G. was age fourteen toeighteen. [My italicization and bolding added]

[42] I am not aware of a decision from the Nova Scotia Court of Appeal or Supreme Court of Canada that directly canvasses theadmissibility issues raised by Mr. Melvin.

I am persuaded that the Ontario jurisprudence in relation to these issues is correct, and I willfollow it.[20] The application of the law to hearsay arising from the documents in issue [43] Let me then turn next to the Crown position in relation to the following types of potential evidence, which I will presume willbe tendered for the truth of their contents: 1. police synopses as evidence of the surrounding factual circumstances involving criminal (CC and Controlled Drugs andSubstances Act (CDSA)) convictions registered against Mr.

Melvin; 2. the facts of untried criminal offences occurring within a correctional facility, where no “convictions” have been registeredagainst Mr. Melvin; 3. the facts of untried criminal offences occurring outside a correctional facility; 4. previous psychological and psychiatric assessments, and chart notes, including diagnoses (including in relation to substanceabuse issues) etc. made in relation to Mr.

Melvin: a. formal court ordered assessments; b. for administrative or institutional purposes; 5. the facts of administrative misconduct within a correctional facility, not rising to the level of criminal offences. [44] As contemplated by s. 723(5) CC, the Crown suggests four bases for allowing hearsay on such sentencings: 1. a common law rule, that where the evidence is “credible and trustworthy”, hearsay is admissible:

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