R. v. Marriott, 2022 NSSC 121

SUPREME COURT OF Nova Scotia Citation: R. v. Marriott , 2022 NSSC 121 Date: 20220504 Docket: CRH 510476 Registry: Halifax Between: Her Majesty the Queen v.

Brian James Marriott DANGEROUS OFFENDER (STAGE 1) DECISION Judge: The Honourable Justice Jamie Campbell Heard: April 25, 2022, in Halifax, Nova Scotia Counsel: Rick Woodburn and Scott Morrison, for the Crown Nathan Gorham, for the Defence By the Court (Orally): [ 1 ] Brian James Marriott pleaded guilty to aggravated assault as part of an incident that happened while he was an inmate at the Central Nova Scotia Correctional Facility on December 2, 2019. [ 2 ] The Crown has given notice of the intention to seek to have Mr. Marriott declared a dangerous offender.

The first part of that process is to make an application for an assessment under s. 752.1(1) of the Criminal Code . That assessment, if granted, is used in the second stage of the process in determining whether the person should be designated as a dangerous or long-term offender.

Section 752.1(1) provides that an assessment order shall be made when an offender has been convicted of a serious personal injury offence and the court is of the opinion that there are reasonable grounds to believe that the offender might be found to be a dangerous offender or long- term offender. [ 3 ] Mr. Marriott, through his counsel Mr. Gorham, does not contest that the conviction for aggravated assault qualifies as a conviction for a serious injury offence. The issue is then whether there are reasonable grounds to believe that he might be found to be a dangerous offender or long-term offender.

There are a few ways in which that phrase may be parsed. Reasonable Grounds [ 4 ] The Crown has argued that s. 752.1(1) sets up a rather low hurdle involving a requirement that there be a reasonable possibility of a finding, or that the finding of the person as a dangerous or long-term offender is within the realm of possibility. Other cases have suggested that the standard amounts to a real possibility, a credibly based probability, or a reasonable suspicion. It could be argued that the standard amounts to asking the question whether it is reasonably probable that something is indeed possible.

Rather than finding another phrase to describe the standard set out in the Criminal Code , the safest approach is just to use the phrase used in the Criminal Code . [ 5 ] The test to be applied is whether there are reasonable grounds to believe that Mr. Marriott might be found to be a dangerous offender or a long-term offender. If so, Mr. Marriott would be remanded for a period not exceeding 60 days for the purpose of having an assessment completed. [ 6 ] The threshold is, of course, considered having regard to the ultimate test.

It would be impossible to make a finding that there are reasonable grounds to believe that the person might be found to be a dangerous offender or long-term offender operating in disregard to the concepts themselves and the process of how such findings are made.

[ 7 ] As regards the process, this is a first step. If the process were to go on to the second stage it would involve a very substantial amount of evidence and an assessment report prepared by a psychologist. Evidence would be led about incidents in which Mr. Marriott is alleged to have been involved. The materials are voluminous, and the amount of time involved is significant. But this is not that step. And this step does not involve the same requirements for evidence as the second step. This is a first stage application to determine if there are reasonable grounds.

Dangerous Offender or Long-term Offender [ 8 ] Those reasonable grounds are as to whether Mr. Marriott might be found to be either a dangerous offender or a long-term offender. Section 753(1) of the Criminal Code provides that a court shall find a person who has been convicted of a serious personal injury offence to be a dangerous offender if the person constitutes a threat to the life, safety, or physical or mental well-being of other persons on the basis of establishing one of three things. One of those involves offences of a brutal nature.

That has not been argued here. [ 9 ] There are two ways in which that threat to life, safety, or mental or physical well-being of others can be established. One is by showing a pattern of repetitive behaviour of which the predicate offence forms a part. The pattern must show a failure by the offender to restrain their behaviour in the past and a likelihood of death, injury, or severe psychological trauma to others through their failure to restrain their behaviour in the future. There are both prospective and retrospective elements.

The other way is to show a pattern of aggressive behaviour of which the predicate offence is a part. The pattern must show a substantial degree of indifference on the part of the offender about the reasonably foreseeable consequences of their behaviour. [ 10 ] There is no requirement that the offences in either case be the equivalent of “similar fact” cases. A variety of crimes can still constitute a pattern. There need only be either similarities in the kind of offences or similarities in terms of result, in terms of the degree of violence or aggression. A pattern of behaviour in the past is not enough.

There must be evidence that the behaviour will continue. There must be evidence of harmful recidivism and intractability of the violent pattern of conduct. [ 11 ] The focus is not entirely retrospective. [ 12 ]

Section 752.1(1) says that the court must grant an assessment when there are reasonable grounds to believe that the person might be found to be a dangerous offender or a long-term offender under s. 753.1. The long-term offender designation may be imposed when it would be appropriate to impose a sentence of two years or more for the offence for which the person has been convicted, when there is a substantial risk that the person will reoffend and there is a reasonable possibility of eventual control of the risk in the community. It is a less onerous penalty but still an exception finding.

But, to grant an assessment order it is not necessary that the judge be satisfied that there are reasonable grounds to believe that the person might be designated as a dangerous offender. It is enough that there be reasonable grounds to believe that the person might be designated as a long-term offender. Evidence on the Application [ 13 ] The materials filed on the application include Mr. Marriott’s criminal record. That is not in dispute. The Crown has also filed psychological assessment reports, assessment decisions and referral decisions from Correctional Services Canada, and Parole Board of Canada decisions.

When the test is whether there are reasonable grounds to believe that Mr. Marriott might be found to be a dangerous offender or long-term offender, and the determination is a first stage one, to decide whether he should be required to undergo an assessment, some use may be made of those kinds of documents. There is no requirement at this stage to have the author of each assessment present to respond to questions about them. That does not mean that the court can simply accept those opinions or defer to the conclusions reached in those assessments, reports, and decisions.

Some of the information is simply factual, though it may be disputed. In that case, the source of the information must be considered. Some of the information is in the form of opinions or conclusions. The reliability of those opinions and the accuracy of the conclusions may be disputed. Care must be taken not to adopt those non-factual statements simply at face value. The source of the opinion or conclusion and the information upon which the opinion or conclusion is based must be considered when deciding the weight, if any, to be given to it. Mr. Marriott’s Criminal Record [ 14 ] Mr.

Marriott’s criminal record goes back to when he was 13 years old. He comes from Spryfield, and his last name is Marriott. It is not unusual to see media reports that refer to the Spryfield Marriott crime family. There are references in the materials to his being a member of the Spryfield MOB street gang. It is vitally important that any decisions made about Mr. Marriott be made based on accurate information about him and not any perceived notions about his status as a member of a so called “crime family” or his membership in a street gang. [ 15 ] Mr. Marriott was born in July 1982. When he was 13 years old, Mr.

Marriott was convicted of attempted theft and failure to comply with a recognizance. He was sentenced to 10 months probation and 45 hours community service. A few months later he was sentenced to a month in Shelburne, then a youth facility, for failure to comply and another incident of mischief. The next month Mr. Marriott was sentenced to 20 days in custody for stealing a car and failing to abide by a court order. Soon after that he was convicted of assault with a weapon and failure to comply with a court order. He was sentenced to 2 months in custody. [ 16 ] In April 1996, when he was about 14 years old, Mr.

Marriott was sentenced for an assault that had taken place the year before, as well as for a mischief charge and failure to comply with a disposition. He was put on 8 months probation. [ 17 ] Mr. Marriott was sentenced to another 8 months probation on August 31, 1997 for possession of property obtained by crime. In November 1997, he was sentenced to 12 months probation for mischief. In October 1998, by which time he was 16 years old, Mr. Marriott was sentenced to 15 days in custody for failure to comply with a disposition under what was then the Young Offenders Act .

The next month he was sentenced to 5 days in custody for possession of drugs for the purpose of trafficking, and 5 more days for failure to comply with an undertaking. [ 18 ] The next week he was in court again being sentenced for failure to comply under the Young Offenders Act . The result was 15 additional days in custody.

[ 19 ] From the fall of 1998 to the fall of 1999 there are no offences recorded. [ 20 ] Then in November 1999 he was involved in possession of drugs for the purpose of trafficking. He was sentenced with respect to that offence on January 14, 2000. He received a sentence of 8 months incarceration and 24 months of probation. This was his second drug trafficking offence while still a youth. He would age out of Youth Court in July 2000, when he turned 18. [ 21 ] In November 2001, he was sentenced once again for failure to comply with an undertaking and a probation order, and with assault.

He was sentenced to three months on the assault, one month on the breach of probation, one month on the failure to comply, and one month for an earlier failure to comply under the Young Offenders Act . [ 22 ] In February 2002, he was in court again being sentenced on an assault that had taken place the previous June. That also included 2 counts of failure to comply with the undertaking or recognizance. He received a sentence of 45 days to be served intermittently, one year of probation and a $750 fine. [ 23 ] In June 2002, when Mr.

Marriott was about to turn 20 years old, he received his first federal sentence, and he has not been out of prison much since then. He was sentenced to 24 months for possession of drugs for the purpose of trafficking, a further 6 months for possession of property obtained by crime and one month concurrent for each of two counts of possession of a weapon. That would be Mr. Marriott’s third conviction for possession of drugs for the purpose of trafficking and he had not yet turned 20. Those offences took place in May of 2002.

Two months before that he had been involved in an incident that gave rise to a manslaughter conviction. [ 24 ] In March 2002, a person was shot at the Copper Penny tavern in Halifax. Mr. Marriott had brought a gun to the tavern and told his associate that he should use it if there was an altercation. A fight broke out between Mr. Marriott and the victim of the manslaughter. Mr. Marriott’s associate shot the person and killed him. Mr. Marriott fled the scene. He was charged with first degree murder.

He was found two months later and he was charged with the drug offences, and pleaded guilty to manslaughter. [ 25 ] Mr. Marriott was sentenced on November 19, 2003, to 5 years and 6 months after credit for the equivalent of 3 years of remand. He had already been in jail since he was arrested in May 2002. [ 26 ] Mr. Marriot was sentenced in June 2002 on the drug trafficking charges and in November 2003 on a manslaughter charge.

What is noteworthy though is that while incarcerated he picked up more sentences that extended his incarceration from May 2002 until January 2018. [ 27 ] In June 2005, he was sentenced to 2 further years for conspiracy to commit and indictable offence. That related to the conspiracy to traffic drugs within the institution in 2002, just after his arrival. [ 28 ] Then in September 2006 Mr. Marriott was sentenced for assault with a weapon and assault causing bodily harm. Those offences took place within a correctional institution. He was sentenced to 2 years on each charge. [ 29 ] In November 2006, Mr.

Marriott was sentence to a further 4 years for possession of drugs for the purpose of trafficking. [ 30 ] On January 31, 2008, he was sentenced to 4 more months for assault with a weapon. [ 31 ] Mr. Marriot’s federal sentences expired in January 2018. He did not receive any kind of early release. He remained incarcerated until his warrant expired. [ 32 ] In November 2019, Mr. Marriott was sentenced for breaches of recognizance and failure to comply with an undertaking. He received concurrent sentences for those offences. Those were conditions imposed upon him at the time of his release.

The sentences he received for those breaches were what brought him to the Central Nova Scotia Correctional Facility in Burnside, in November 2019. [ 33 ] Then on December 2, 2019, he was involved in the incident that gave rise to his guilty plea for aggravated assault. In that incident, within the Burnside facility Mr. Marriott was involved in the group that planned an assault on another inmate and actively prevented correctional officers from intervening to end the assault. [ 34 ] Mr. Marriott’s criminal record is a fact. It is not disputed.

What is shows is a person who from the age of 13 has been in regular contact with the criminal justice system and who, from the age of 20 has essentially been incarcerated in various federal penitentiaries. He has been involved with several serious and violent offences. Reasonable Grounds in Mr. Marriott’s Case [ 35 ] The purpose of this application is to determine whether an assessment should be ordered on the basis that there are reasonable grounds to believe that Mr. Marriott might be found to be either a dangerous offender or a long-term offender. It is not to prejudge any further stages of the process.

Delving into the opinions and assessments to speculate on whether they are accurate comes close to doing that. At this stage, it is safer to rely on undisputed facts. [ 36 ] Mr. Marriott’s record is lengthy, but the length of a person’s criminal record is not determinative of the issues on an application of this kind. What is significant is the nature of the record, involving violent offences and the fact that while incarcerated, within a highly structured environment Mr. Marriott continued to be involved in criminal activity. Not all of it was violent of course, and that would be an issue at the next stage.

It does allow for an inference to be made that Mr. Marriott is not someone who is deterred by the threat of longer periods of incarceration. [ 37 ] While the environment within prisons is one in which people are under great stress and may feel it is necessary to respond to protect themselves from others, it is also a highly structured environment. Inmates are monitored and supervised.

While it is a proposition that can be disputed, it is also reasonable to suggest that a person who cannot refrain from committing acts of violence while incarcerated is not likely to be able to refrain from committing acts of violence when free of the constraints imposed by the penal environment.

[ 38 ] Within that environment, there are suggestions that Mr. Marriott has continued to court trouble. Mr. Marriott has been involved many times with allegations of contraventions of the rules imposed by the authorities. It is not necessary to review each of the allegations and assess whether they are true at this stage. There may in each case be an explanation for the behaviour. There may be some allegations that are not true at all. But what is not disputable is that Mr.

Marriott has not shown himself to be a person who has responded well to the restrictions imposed. [ 39 ] There is evidence that he has not made efforts to take programming designed to equip him for life on the outside. That may be disputed but the information contained in the reports regarding that issue is not based on opinions but on a review of Mr. Marriott’s records. [ 40 ] At this stage the better process is to apply the test, as set out explicitly in the Criminal Code , to the undisputed facts and reasonably verifiable facts. [ 41 ] Mr.

Marriott has a criminal record for violence that reaches back at least 20 years. He was convicted of manslaughter. Then while in prison he has had three convictions for assault, whether involving a weapon or aggravated assault. He has had other convictions which can be argued to be evidence of his unwillingness or inability to comply with legal restraints. [ 42 ] A reasonable belief is one that is based on facts and evidence. The facts contained in Mr.

Marriott’s criminal record along with the evidence to indicate that he has not taken any programming over the period of his lengthy incarceration permit the belief, based on reasonable grounds, that he might be found to be a dangerous offender or a long-term offender. [ 43 ] The assessment will be ordered. Campbell, J.