COURT OF APPEAL FOR BRITISH COLUMBIA
| Citation: | R. v. Allan, |
|
| 2015 BCCA 229 |
Date: 20150525
Docket: CA37538
Between:
Regina
Respondent
And
Daniel Lewis Allan
Appellant
| Before: | The Honourable Madam Justice Newbury The Honourable Madam Justice Saunders The Honourable Mr. Justice Savage |
On appeal from: An order of the Supreme Court of British Columbia, dated September 11, 2009 (R. v. Allan, 2009 BCSC 1245, New Westminster Docket X067748).
| The Appellant: | In Person |
| Counsel for the Respondent: | D. Layton |
| Place and Date of Hearing: | Vancouver, British Columbia April 30, 2015 |
| Place and Date of Judgment: | Vancouver, British Columbia May 25, 2015 |
| Written Reasons by: |
| The Honourable Mr. Justice Savage |
| Concurred in by: |
| The Honourable Madam Justice Newbury The Honourable Madam Justice Saunders |
Summary:
The appellant challenges the decision declaring him to be a dangerous offender and sentencing him to an indeterminate period of incarceration. He argues the judge erred in her treatment of the evidence, and in finding that a long-term offender designation was not appropriate. Held: Appeal dismissed. There was no merit to the grounds advanced by the appellant, which included unproven assertions and unfounded challenges to the judge’s factual findings, and failed to identify any errors of law.
Reasons for Judgment of the Honourable Mr. Justice Savage:
[1] Daniel Lewis Allan was declared to be a dangerous offender and sentenced to an indeterminate period of incarceration following a trial at which he was convicted of six offences including breaking and entering, aggravated assault and robbery, and kidnapping. The issue in this appeal is whether Mr. Allan was properly and reasonably declared to be a dangerous offender and sentenced to an indeterminate period of incarceration.
[2] The reasons for the dangerous offender finding are indexed at 2009 BCSC 1245. The reasons for conviction are indexed at 2006 BCSC 544. Mr. Allan’s conviction appeal to this Court was dismissed by this Court for reasons indexed at 2012 BCCA 388. Mr. Allan raises 11 arguments in this appeal. He says an appropriate sentence is an additional 17 years which includes 7 years of additional incarceration and a 10 year Long-Term Offender Supervision Order (LTSO).
[3] A person who has been found to be a dangerous offender may, under s. 759(1) of the Criminal Code, R.S.C. 1985, c. C-46, appeal on any ground of law, fact, or mixed law and fact. The Supreme Court of Canada has held that appellate review is concerned with legal errors and whether the dangerous offender designation was reasonable: R. v. Currie, [1997] 2 S.C.R. 260 at para. 33. In contrast with other sentence appeals, courts have broad curial powers in this context. Under the reasonableness standard, appellate review of a dangerous offender designation is “somewhat more robust”: R. v. Sipos, 2014 SCC 47 at para. 26. However, this does not call for an entirely fresh look at the designation, and deference to the sentencing judge’s findings is still required.
[4] I have concluded that there is no merit in the appeal and the appeal should be dismissed.
[5] The breaking and entering, aggravated assault and robbery, and kidnapping occurred on August 29, 2003. The victim was Mr. Allan’s cousin, a lawyer, whom he saw infrequently but against whom he had developed some baseless ill-will. The offences involved planning and deliberation which he revealed to a roommate. Mr. Allan broke into and entered the victim’s home, assaulted the victim, placed him in the trunk of a stolen car, beat him to demand a PIN number, “piped” the victim, and then dumped the victim on a gravel road.
[6] As a result of the attack the victim sustained numerous injuries including a closed head injury, a skull fracture, throat injuries, paralyzed and partially paralyzed vocal cords, strangulation injuries, lacerations to hands, and bruising to his face, knees, forearms, and feet. The victim was tube-fed for a year and developed aspiration pneumonia. He had a tracheotomy and suffered emotional and physical injuries that prevents full-time work.
[7] Mr. Allan’s criminal record covers the period of 1977-2006. At sentencing, he had spent 20 of the last 24 years in custody. He has now accumulated 58 convictions including the six predicate offences. The sentencing judge grouped the offences into 11 categories referenced and summarized in paragraphs 42-94 of her reasons. What follows is an abbreviated summary of the circumstances of those offences.
[8] On January 24, 1977, Mr. Allan was convicted of two counts of possession of stolen property, six counts of forgery, and six counts of uttering a forged document. These offences arose from incidents in October and November of 1976 when he was 20 years old. The offences were part of a scheme where business cheques were obtained on the pretence that they were needed for an auto body shop, and then cashed using stolen identification. He was on a recognizance and judicial interim release at the time of these offences.
[9] While on probation for the above offences, Mr. Allan was convicted of armed robbery committed on June 2, 1977. He demanded money from a bank teller with a written note that threatened the teller to follow his instructions and “Do not panick (sic) or you will be the first to be shot”. He obtained over $1,000, was later arrested, and sentenced to 15 months in jail.
[10] On February 9, 1984, Mr. Allan was convicted of manslaughter by a jury for a killing that occurred sometime in April 1983. Mr. Allan struck the victim in the face with a golf club six or seven times causing multiple fractures of the skull and facial bones. After the attack Mr. Allan put the victim’s body in a plastic bag and buried the body in a shallow grave in the back yard. The killing occurred while the victim was sitting on a chesterfield in circumstances where he could not defend himself from attack. The judge concluded that it was a brutal and savage attack. Mr. Allan was sentenced to ten years for the offence of manslaughter on February 16, 1984. He was also sentenced on a variety of other offences including fraud, attempted fraud, and uttering a forged document which occurred before and after the victim’s death. One of the fraud charges included using the victim’s identification and cashing a cheque on the victim’s account.
[11] On July 29, 1987, Mr. Allan was sentenced to three months concurrent for a fraud committed some time in 1983. The offence occurred in Thunder Bay but no details exist of the circumstances.
[12] On October 15, 1987, while on an unescorted temporary absence, Mr. Allan, in violation of parole conditions, obtained a hand gun and robbed his victim of a Chevrolet Corvette valued at $45,000. He fled in the vehicle, forged a cheque to obtain gas, fraudulently used a credit card, and fled at high speed from police. He was convicted of robbery while using a firearm, uttering a forged document, being unlawfully at large, mischief, and possession of a credit card obtained by crime. Mr. Allan was sentenced to two years for the robbery, one year consecutive for use of a firearm, and six months concurrent on the remaining charges.
[13] Mr. Allan was granted day parole on August 12, 1992, and released to a community residential facility on August 25, 1992. On September 27, 1992, he absconded. On September 30, 1992, he turned himself in and earned remission was revoked. He was released from prison on his warrant expiry on September 19, 1997.
[14] On February 21, 2000, Mr. Allan was convicted of two counts of dangerous driving, seven counts of possession of stolen property, and failing to appear. With respect to the stolen property offences, Mr. Allan visited car dealerships expressing an interest in a car and then stealing the car while paperwork was being completed. He would sometimes pose as a police officer. The dangerous driving offences involved driving away from police officers at a high rate of speed, and ignoring stop signs and traffic signals. In one case the pursuit was called off because of dangers to the public; in the other case the car was driven off the road into cement barricades and launched 70 feet into the air before hitting the ground and rolling. Mr. Allan was sentenced to six months in jail and given a driving prohibition of two years.
[15] Mr. Allan was next convicted of two counts of possession of stolen property and one count of driving while disqualified. On November 10, 2000, Mr. Allan was pulled over while driving a $30,000 car stolen from an auto dealership. The car bore two different stolen licence plates. At the time of his arrest he was disqualified from driving. On December 1, 2000, he was sentenced to three months in jail, probation of three years, and a one-year driving prohibition.
[16] On December 18, 2001, Mr. Allan was convicted of impaired driving in Surrey, B.C., when a vehicle he was driving had driven into a ditch. He was fined and given a one-year driving prohibition. The front licence plate was not registered to the vehicle and the rear licence plate was stolen. At the time he was driving contrary to the prohibitions imposed earlier, although he was not charged with those offences.
[17] In July 2003, Mr. Allan failed to report to his parole officer and was sentenced on December 1, 2003 to a seven-day jail sentence.
[18] After the commission of the predicate offences Mr. Allan’s whereabouts were unknown. He was not charged with the predicate offences until he was arrested on September 12, 2003 following a high speed car chase in a stolen car on the Sea-to-Sky Highway. During his flight he drove southbound in the northbound lane, and twice made 180 degree turns on the highway. He was pursued by multiple police vehicles and a police helicopter, evaded a spike belt, and eventually abandoned the police car, but was tracked by a police dog. He pled guilty to dangerous driving, flight, five counts of possession of stolen property, and one count of theft.
[19] Six witnesses were called at the hearing:
1) Court-appointed expert Dr. Rakesh Lamba;
2) Crown witness Pierre Ouellet, an expert in forensic psychiatry who interviewed Mr. Allan in 1995;
3) Crown witness Dr. Derek Eaves, an expert in forensic psychiatry who interviewed Mr. Allan in 1993;
4) Crown Witness Christina Browne, an expert in psychology who interviewed Mr. Allan in 1997;
5) Crown witness Kerry O’Flanagan, a correctional service liaison officer who provided evidence on the supervision and treatment of long-term and dangerous offenders in the community; and
6) Defence witness Dr. Robert Ley, an expert in forensic and clinical psychology, who reviewed Mr. Allan’s results from previous psychiatric testing.
[20] Multiple assessment tools were utilized by the experts who assessed Mr. Allan, including the Hare Psychopathy Checklist (“PCL-R”) and the Minnesota Multiphasic Personality Inventory (“MMPI”). The PCL-R, which is scored from 0-40, is broken down into two factors. Factor 1 represents different aspects of psychopathy and personality traits such as lack of empathy or remorse, shallow affect, glibness, pathological lying, and failure to accept responsibility for one’s actions. Factor 2 is a measure of antisocial tendencies and lifestyle choices.
[21] Although the experts slightly diverged on the level of risk of re-offence entailed by various PCL-R scores, Dr. Lamba, Dr. Eaves, and Mr. Ouellet agreed that a score of 30 was traditionally considered the cut-off for a finding of psychopathy. However, Dr. Lamba favoured the use of 25 as the cut-off for psychopathy, rather than 30, and Dr. Eaves and Mr. Ouellet agreed that a score in the 20s constituted a medium or moderate risk. According to Dr. Lamba and Mr. Ouellet, a high Factor 1 score is more strongly associated with the likelihood of violent re-offending than the total score. The Court accepted the evidence of Dr. Lamba and Mr. Ouellet.
[22] The Crown’s application was brought under Part XXIV of the Criminal Code (Dangerous Offenders and Long-Term Offenders). The grounds on which an offender will be found to be a dangerous offender are set out under s. 753 of the Code which at the time of the predicate offences read as follows:
753. (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find the offender to be a dangerous offender if it is satisfied
(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing
(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour,
(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or
(iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint, or
...
(4) If the court finds an offender to be a dangerous offender, it shall impose a sentence of detention in a penitentiary for an indeterminate period.
...
(5) If the court does not find an offender to be a dangerous offender,
(a) the court may treat the application as an application to find the offender to be a long-term offender, section 753.1 applies to the application and the court may either find that the offender is a long-term offender or hold another hearing for that purpose; or
(b) the court may impose sentence for the offence for which the offender has been convicted.
[23] At the time of the predicate offences the grounds on which an offender may be found to be a long-term offender were set out as follows under s. 753.1 of the Code:
753.1(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that
(a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;
(b) there is a substantial risk that the offender will reoffend; and
(c) there is a reasonable possibility of eventual control of the risk in the community.
...
(3) Subject to subsections (3.1), (4) and (5), if the court finds an offender to be a long-term offender, it shall
(a) impose a sentence for the offence for which the offender has been convicted, which sentence must be a minimum punishment of imprisonment for a term of two years; and
(b) order the offender to be supervised in the community for a period not exceeding ten years, in accordance with section 753.2 and the Corrections and Conditional Release Act.
...
(6) If the court does not find an offender to be a long-term offender, the court shall impose sentence for the offence for which the offender has been convicted.
[24] The judge below set out the above provisions and found that she must also keep in mind the general purpose and principles of sentencing as set out in Part XXIII of the Code, particularly ss. 718, 718.1, and 718.2:
718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
718.2 A court that imposes a sentence shall also take into consideration the following principles:
...
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
[25] The judge then defined her task as requiring the determination of three issues:
(1) Whether the offender has been convicted of a “serious personal injury offence” as defined in s. 752 of the Code;
(2) Whether the evidence proves that the offender is a dangerous offender on any of the grounds set out under ss. 753(1)(a)(i)-(iii); and
(3) If the offender is a dangerous offender, whether the evidence proves that there is no reasonable possibility of eventual control of the offender in the community and that therefore sentencing the offender as a long-term offender would not be sufficient.
[26] The judge quoted s. 752 of the Code which defined a “serious personal injury offence” as follows:
752. … “serious personal injury offence” means
(a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving
(i) the use or attempted use of violence against another person, or
(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person,
and for which the offender may be sentenced to imprisonment for ten years or more, or
(b) an offence, or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault).
[27] With respect to the first question the judge found as follows:
[18] There is no question that the [six] offences of which Mr. Allan was convicted carry a penalty of ten years or more. Combined with the use of violence and the resulting injuries inflicted on the victim as described in the reasons for judgment, indexed at 2006 BCSC 544, I find that the kidnapping, break and enter with intent to commit assault, aggravated assault and robbery satisfy the definition of a “serious personal injury offence” within s. 752 of the Code.
[28] The judge summarized the evidence and then went on to consider whether the Crown had proven beyond a reasonable doubt that Mr. Allan was a dangerous offender in that he constituted a threat to the life, safety, or physical or mental well-being of other persons on the basis of evidence meeting the requirements of ss. 753(1)(a)(i), 753(1)(a)(ii) or 753(1)(a)(iii) of the Code. The judge found that the evidence proved Mr. Allan a dangerous offender under all three subsections (paras. 192-234).
[29] The judge then went on to consider the final issue which was whether the sentencing sanctions available in the long-term offender provisions were sufficient to reduce the threat of re-offending to an acceptable level. The judge described this issue as follows:
[236] Although I have found that Mr. Allan fits the definition of a dangerous offender, that does not automatically follow that he must be declared a dangerous offender and be given an indeterminate prison sentence. In [R. v. Johnson, 2003 SCC 46], the court stated at para. 29 that:
The essential question to be determined, then, is whether the sentencing sanctions available pursuant to the long-term offender provisions are sufficient to reduce this threat to an acceptable level, despite the fact that the statutory criteria in s. 753(1) have been met.
[237] This is an application of the general principle that the court should impose the least restrictive sanction that will accomplish the sentencing objectives that are dictated by the particular circumstances of the case at hand. In the present case, the overriding sentencing objective is the protection of the public from the serious threat posed by the appellant to public safety: R. v. T.R.S., 2009 BCCA 345 at para. 11; see also R. v. Dagenais, 2003 ABCA 376, 339 A.R. 132 at para. 74.
[238] Pursuant to s. 753.1(1), the Court may designate the offender a long-term offender if the following criteria are met:
(a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;
(b) there is a substantial risk that the offender will reoffend; and
(c) there is a reasonable possibility of eventual control of the risk in the community.
[239] The parties agree that s. 753.1(1)(a) has been met, in that it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted. Thus, I must consider whether ss. 753.1(1)(b) and (c) are satisfied: that is, whether there is a substantial risk that Mr. Allan will reoffend and whether there is a reasonable possibility of eventual control of the risk in the community.
[240] This risk need not be limited to any specific type of offence.
[241] In [R. v. Wormell, 2005 BCCA 328], the British Columbia Court of Appeal rejected the notion that there was an onus on the Crown to prove beyond a reasonable doubt that it was not reasonably possible to control the risk posed by the offender through a long-term offender sentence. As Southin J.A. explained at paras. 32 to 33:
The task of the Court from beginning to end is to ask itself, “Am I satisfied that there is a [reasonable] possibility of eventual control of the risk in the community?” If the judge concludes that he or she is not so satisfied then the judge cannot designate the offender a long-term offender.
In my opinion, it is not right to approach this with burden of proof at the back of one’s mind. Burden of proof, whether it is proof beyond a reasonable doubt or on a balance of probabilities, directs itself to determining past events.
[Emphasis in the original.]
[242] Thus, the Court must satisfy itself that there is a reasonable possibility of eventual control of the risk in the community, having regard to the whole of the evidence before it: Wormell at para. 61. In doing so, the Court must consider the need for resources to control the appellant or to make it reasonably possible for him to control himself, both during and after long-term supervision, without imposing on either side the burden of establishing that such resources would or would not be available: T.R.S. at para. 25.
[243] That said, a reasonable possibility does not mean an absolute certainty: R. v. G.L., 2007 ONCA 548, 87 O.R. (3d) 683 at para. 39, leave to appeal ref’d [2008] S.C.C.A. No. 39.
[244] The Court can only find a reasonable possibility of eventual control if such treatment or control can be effected within the parameters of the appropriate fixed sentence and supervisory conditions within the community: R. v. Johnson, 2008 BCCA 149 at para. 70 [Johnson (2008)]. Thus, in R. v. B.A.P., 2005 BCCA 121, 208 B.C.A.C. 303, leave to appeal ref’d [2005] S.C.C.A. No. 445, Newbury J.A. said at para. 30:
In the case at bar, I would emphasize the word “reasonable” as a qualifier of “possibility” and the phrase “within the terms of the long-term offender provisions”. Again, the Crown is not required to prove [absolute] intractability to meet its burden. If, as in this case, there is a “possibility” of future treatment, but it is unlikely that such treatment or control can be effected within the parameters of the appropriate fixed sentence and supervisory conditions in the community, a long-term offender designation is not appropriate.
[Emphasis in the original.]
[245] The determination whether an offender’s risk can be reduced to an “acceptable” level requires consideration of all factors that can bring about sufficient risk reduction to ensure protection of the public. This includes treatability: G.L. at para. 42. Treatability does not require showing that an offender will be “cured” through treatment or that rehabilitation might be assured. Instead, what is required is proof that the nature and severity of an offender’s identified risk can be sufficiently contained in a non-custodial setting in the community so as to protect the public: G.L. at para. 42; see also Johnson (2008) at para. 73. The provisions envisage the containment or management of risk – not the eradication of risk. Furthermore, where a consideration of manageability in the community rests on the adequacy of community supervision as opposed to treatment, Cronk J.A. has observed that the availability of community resources to implement such supervision “cannot be uncertain” as to hold otherwise would be “speculative, thereby preventing any reliable assurance that unreasonable risks to public safety can be avoided”: G.L. at para. 59.
[246] I note, however, that a finding of any possibility of treatment, albeit remote, is not an absolute bar to a dangerous offender designation: Dagenais at para. 91. The Court does not need to find “absolute intractability” in that the offender will never be treatable in his lifetime in order to impose a dangerous offender designation: B.A.P. at para. 26.
[247] Thus, the Court must find the balance between an acceptable level of risk and the reasonable possibility of eventual control in the community in this case.
[30] On the question of whether Mr. Allan posed a substantial risk of re-offending the judge said this:
[254] In determining whether Mr. Allan has a substantial risk of re-offending, all factors must be considered. Such factors include psychiatric diagnoses, test scores and Mr. Allan’s past failures to follow parole conditions. Of these factors, the PCL-R score is only one factor to be considered. I note, however, that Mr. Allan’s most recent Factor 1 score on the PCL-R put him in the 100th percentile for risk to reoffend violently. Furthermore, I am satisfied that the dimensional approach to the total PCL-R score should be used, which would set psychopathy at a score of 25 which is exactly where Mr. Allan scored.
[255] However, the PCL-R is simply one tool to assess risk. It must be considered in conjunction with the other important historical evidence in this case. I observe that when Mr. Ouellet administered the H-PCL-R to Mr. Allan in 1995, Mr. Allan had a total score of 24 with a Factor 1 score in the 92.5th percentile. Mr. Ouellet classified him as a moderate risk to reoffend. Yet Mr. Allan went on to commit three dangerous driving offences, one impaired driving offence and the predicate offences, among others. Mr. Allan’s long criminal history demonstrates that one cannot rely solely on test scores in determining his risk of re-offending. I note, however, that Mr. Ouellet opined that Mr. Allan was, in 1995, a psychopathic individual who simply had yet to accumulate the Factor 2 antisocial traits that would have given him an overall score required to classify him as a psychopath.
[256] Based on all of the foregoing evidence, I find that Mr. Allan poses a substantial risk of re-offending. I accept Dr. Lamba’s evidence that Mr. Allan poses a “moderate to high” risk for violent reoffending based on both his total PCL-R score and his Factor 1 score, the likely nature of his violence, severity of that violence, imminence of risk and his potential targets.
[31] On the question of whether there was a reasonable possibility of the eventual control of the risk posed by Mr. Allan the judge said this:
[257] With respect to whether there is a reasonable possibility of eventual control of the risk posed by Mr. Allan, I have considered all of the evidence presented, including the treatment recommendations made by expert witnesses in this case.
[258] The first issue is whether Mr. Allan’s disorders and various personality traits can be treated. As identified by Dr. Lamba above, Mr. Allan has three areas of potential treatment: (1) Axis I, (2) Axis II, and (3) psychopathic traits associated with Factor 1 scores on the PCL-R.
[259] Axis I of the DSM-IV contains major mental disorders including delusional disorders and factitious disorders. Though there was some debate amongst the experts as to whether Mr. Allan suffered from a delusional disorder or was malingering, I note that Dr. Lamba testified it was possible for both conditions to co-exist. Treatment of Axis I disorders generally involve the use of anti-psychotic medications which can only diminish, but not eliminate, the intensity of the delusions. However, Mr. Allan’s co-existing personality disorder would make treatment problematic as it would tend to feed these delusions. Of great concern to me was Dr. Lamba’s testimony that a delusional disorder might be treated with some success, but that the underlying paranoid personality traits that fed that disorder were much harder to treat. Furthermore, Mr. Allan could not be compelled to take such medication unless he was certified under the Mental Health Act. Without certification, any medication would have to be voluntary. I am not satisfied that the evidence demonstrates that Mr. Allan would voluntarily take the required medication to control his risk.
[260] Axis II of the DSM-IV involves personality disorders with narcissistic, histrionic, anti-social and paranoid traits. All three forensic experts diagnosed Mr. Allan to have an anti-social personality disorder. Treatment generally involves cognitive behavioural psychotherapy, but such therapy requires high motivation and commitment from the individual. Given Mr. Allan’s dismal history of abiding by parole conditions, I am concerned that such treatment would not be effective. Furthermore, Mr. Allan has never attended any institutional programs specifically directed to address violence between 1984 and 1997, thus exhibiting a continued lack of acceptance of responsibility for his criminal actions. I am not satisfied that Mr. Allan could be compelled to attend treatment or that such treatment would be effective.
[261] Finally, I note Dr. Lamba’s testimony that the general consensus regarding treatment of anti-social and psychopathic traits was that current treatments were ineffective. Persons with high Factor 1 PCL-R scores tended not to last long in treatment even if they came in with commitment in that they have a high drop-out rate, get bored, end up in conflicts with their group, or lose motivation. The literature suggested that persons with high Factor 1 scores failed more frequently and earlier on supervision by committing more violent offences, and were also more likely to use weapons when committing violent offences. Furthermore, grandiose attitudes made these individuals less likely to follow the authority of others and they would be more prone to manipulate supervisors. I note that Dr. Eaves testified that Mr. Allan finds it difficult to form trusting relationships with others. This would certainly include counsellors responsible for treating Mr. Allan. Finally, Mr. Ouellet also testified that individuals with personality characteristics such as those exhibited by Mr. Allan were highly resistant to change because they did not see that they had a problem. Instead, in their view, it was the rest of the world that had the problem. Neither of these opinions bode well for the treatment of Mr. Allan’s psychopathic traits.
[262] The psychiatric diagnoses under Axis II and those of the psychopathic traits demonstrated by Mr. Allan are most troubling. In considering all the evidence, I conclude that the Axis II disorders and the psychopathic traits, particularly when combined with the Axis I disorders, are significant obstacles to Mr. Allan’s prospects for treatment or to any reasonable possibility of eventual control in the community.
[263] In addition to the treatability of Mr. Allan’s disorders, the ability of a community setting to contain or manage Mr. Allan’s risk is another critical consideration for the Court. Thus, the evidence of Ms. O’Flanagan and Ms. Browne on the types of programs available in communities, the types of parole conditions, and other types of community controls is crucial in determining whether the risk posed by Mr. Allan can be controlled in the community.
[264] Defence counsel also relied heavily on Ms. O’Flanagan’s evidence. In cross-examination, she agreed with him that it was “possible” to impose rather unusual conditions, such as a requirement to reside 24 hours a day, 7 days a week at a halfway house, or to report once a day to the RCMP.
[265] However, a significant part of a parole officer’s ability to monitor an offender in the community depends on the offender being honest and candid about their actions. Regardless of whether Mr. Allan has an anti-social personality disorder, manipulative nature, delusional thinking or malingering condition, the expert evidence in this case demonstrates that such honesty is foreign to Mr. Allan. Five months after the “positive” MMPI score with Dr. Howes at Stoney Mountain Institution, Mr. Allan absconded while on parole. He went on to re-offend many times. He has never taken responsibility for his criminal actions and has displayed a callous lack of empathy to his victims. Furthermore, I accept the expert evidence that Mr. Allan’s personality traits make it difficult for him to form trusting relationships with persons in authority, such as parole supervisors. This trust is essential to effective supervision.
[266] Ms. O’Flanagan’s testimony also revealed a number of shortcomings in the ability of the [Correctional Service of Canada (CSC)] or [National Parole Board (NPB)] to control Mr. Allan in a community setting. The evidence demonstrates that Mr. Allan requires permanent, constant supervision to control the risk of his re-offending. Such supervision could only be carried out in an institutional setting. Ms. O’Flanagan’s evidence showed that community programs are limited both in terms of resources and availability.
[267] Simply put, I find that nothing short of full-time supervision in an institutional setting will bring Mr. Allan’s risk to a manageable and acceptable level. It would be inappropriate to designate Mr. Allan a long-term offender as the number of conditions necessary to control him and the intensity of such conditions would end up replicating the conditions of jail: G.L. There is simply no reasonable possibility of control in the community: R. v. Otto, 2006 SKCA 52.
[268] Finally, while both Dr. Eaves and Dr. Lamba testified that generally speaking, the likelihood of re-offending generally or non-violently decreases as age increases, I am not satisfied that this general rule is applicable to Mr. Allan who is currently 53. He was 47 when he committed the predicate offences which were callous, violent and brutal. I accept Dr. Lamba’s opinion that neither psychopathic traits under Factor 1 of the PCL-R nor instrumental violence burn out with age. I have found that Mr. Allan displays psychopathic traits and also engaged in instrumental violence. Therefore, I do not accept that Mr. Allan’s risk of re-offending will decrease in the future simply because he is getting older.
[269] As observed by the experts in this case, the best predictor of future behaviour is past behaviour. Given Mr. Allan’s abysmal history of absconding while on parole, breaching parole conditions, and breaching court orders, any safeguards provided by way of the issuance of warrants in the event that Mr. Allan were to breach a supervision order cannot provide the necessary assurances that will prevent any violent re-offending.
[270] In short, I am unable to find any basis at all to conclude that there is a reasonable possibility of eventual control in the community of the risk posed by Mr. Allan. There is insufficient evidence of any treatment to which this man would respond, and no evidence that he has any motivation at all to undergo treatment or to become less inclined to reoffend, obey conditions of release or develop any degree of empathy whatsoever for other people. Any hope that he will do any of these things is unfounded on the evidence. In the words of Newbury J.A. in B.A.P., it is unlikely that any future treatment or control can be effected within the parameters of a determinate sentence and community supervision. Mr. Allan is not a suitable candidate for a long-term offender designation. The only way to achieve the overriding sentencing objective of the protection of the public is to designate Mr. Allan a dangerous offender.
[32] The appellant lists 11 grounds of appeal. None of those grounds challenge the judge’s interpretation of the Criminal Code. The grounds of appeal by and large challenge the judge’s findings, sometimes with assertions, and sometimes with the selective use of evidence. Three of the grounds challenge the judge’s use of Mr. Allan’s convictions in concluding he was a dangerous offender. Six grounds challenge the judge’s conclusion that a long-term offender designation was not appropriate. Two grounds are largely a collateral attack on his conviction. I will deal with these grounds in those three groups.
[33] Under the ground Mr. Allan styles as “Veracity”, he says in respect of the manslaughter conviction that he did not plan the attack on the victim, the victim was not seated when struck in the head with a golf club, the appellant’s injuries showed he acted in self-defence, and he has taken responsibility for the crime. Mr. Allan argues that the judge wrongly overlooked these matters in using the manslaughter conviction to support the finding that he is a dangerous offender.
[34] I disagree. The judge’s findings are supported in the record, including the trial judge’s findings regarding Mr. Allan’s manslaughter conviction and the agreed statement of facts regarding that conviction at the sentencing hearing below. For example, the judge at sentencing for the manslaughter conviction said this:
The killing was a brutal and savage one. The accused struck the deceased six to seven times in the face and head with a golf club causing multiple fractures of the skull and facial bones. The blood of the deceased was spattered profusely over the wall of the living room in the house then occupied by the accused, and there was much of his blood in the basement where the accused deposited the body before burying it in the back garden.
Although the accused had said in one of his statements to the police that a fight had occurred, and that he had defended himself with a golf club only after he started to get the worst of it, no blood of the accused was identified in the house, and witnesses who had seen the accused shortly after the event, and in the days following it, did not report observing any injuries on his body that might reasonably be attributed to the alleged fight.
The jury rejected self defence, but did not convict of murder. I am sure they did so because they felt the Crown had not proved beyond a reasonable doubt that the accused had not acted in provocation within the meaning of section 215 of the Criminal Code. …
The jury apparently thought the accused may have suffered a wrongful act or insult of such a nature as would be sufficient to deprive an ordinary person of the power of self-control. That the accused might have lost his self-control and acted in the heat of passion on the sudden before there was time for his passion to cool. I accept the jury’s decision that that might have occurred; and shall govern myself accordingly in passing sentence.
Although I shall proceed on the basis that the accused killed Bardoel in the heat of passion, I do not intend, nor am I obliged to overlook the evidence that the killing probably occurred while the deceased was sitting on a chesterfield in circumstances in which he could not have defended himself from the attack. The evidence to which I refer is the blood spattering on the wall above the chesterfield with a large blood stain between and under the cushions of the chesterfield; and the obvious fact that a man who is standing up and aware of the attack could probably have defended himself from fatal blows by an assailant attacking with a golf club.
In any event, and even if I am wrong in the foregoing statement about what appears to have occurred, it is clear that the deceased was not armed with anything that could be used by him as a weapon. In my view the attack was not only vicious and brutal, but it was a cowardly attack.
Of more significance in sentencing, although the accused may have killed in the heat of passion, that passion had certainly cooled by the time the accused had taken the body of his victim downstairs, put it into a plastic bag in the basement[,] and eventually buried it in a shallow grave in the back garden with a concrete block on the face of the body. Instead of showing remorse when his passion had cooled, the accused set out to conceal the killing and succeeded for a time in doing so.
Furthermore during the first two weeks after the killing he profited from the death of his victim by making use of the car of the deceased, and probably by using a substantial sum of money taken from the body of the deceased. When the police called upon the accused on April 30th, about two weeks after the killing, during the course of investigating the disappearance of Bardoel, the accused gave a false story to the police to explain his possession of the automobile owned by the deceased.
The accused told the police that Bardoel had come to his house on April 19th or 20th and asked him to look after the car because he, Bardoel had to leave town in a hurry because the heat was on. The accused told the police that Bardoel had said he would be gone three or four days, and would be in contact with the accused, but that he had heard nothing from Bardoel.
This story was repeated to other police officers who came to his house on May 4th, and from whom he withheld permission to examine the entire house. The body of Bardoel was not discovered until May 18th after the accused had been evicted from the house for non-payment of rent.
[35] The judge below also accepted Dr. Eaves’ testimony that Mr. Allan, nine years after the event, still claimed he killed the victim in self-defence. While Mr. Allan stated that the crime had destroyed both his and his victim’s lives, this was not an expression of remorse but one of regret that the event had incapacitated Mr. Allan’s life. The judge was right to conclude that Mr. Allan had not taken responsibility for the crime.
[36] Under the ground of appeal headed “Hearsay”, Mr. Allan says that evidence that he was injured during the manslaughter event has been lost or suppressed. He also argues that reference in a court decision to the victim having a pre-existing injury that made him vulnerable is not proven and is a “malfeasant stunt”. My first observation is that there is no evidence before us that any evidence on these points has either been lost or suppressed although Mr. Allan makes those assertions.
[37] The sentencing judge on the manslaughter conviction noted that witnesses who saw Mr. Allan shortly after, and in the days after the events, saw no injuries which could be attributed to a fight, and none of his blood was identified in the house where the manslaughter occurred.
[38] Although the judge below actually made no observations of any pre-existing injuries that might have prevented the victim from defending himself, the admissions of Mr. Allan at the dangerous offender hearing include that the victim, in March before his death, was observed with a cast on his arm, and that in early April, had difficulty driving, said his arm hurt, and was observed to have difficulty shifting gears. A woman who saw Mr. Allan on a daily basis from mid-April onwards saw no injuries on Mr. Allan other than a swollen small finger that Mr. Allan had attributed to being in a fight “out west”.
[39] Mr. Allan’s claims of impropriety concerning the unavailability of trial and preliminary hearing transcripts from his manslaughter conviction were not made in the court below. However, the facts surrounding the manslaughter conviction, and materials relating to that conviction, were admitted for the truth of their contents. In any event, the Crown may rely on hearsay evidence from reliable and trustworthy sources, such as court records, to prove the circumstances surrounding the offender’s prior criminal convictions: R. v. Ziegler, 2012 BCCA 353 at para. 73.
[40] In my opinion the judge’s reliance on the manslaughter conviction to find that the requirements of s. 753(1)(a) were met shows no mistake of law or unreasonable finding of fact.
[41] Mr. Allan says that the trial judge erred by relying on his 1978 robbery conviction to help conclude he fell within the definition of dangerous offender in s. 753(1)(a)(iii) of the Code. The reasons do not show any such reliance, and, in any event, Mr. Allan’s entire record for violent offences is relevant to the legal issue before the judge.
[42] In concluding there was no reasonable prospect that treatment would be effective in reducing the risk posed by the appellant, the trial judge reviewed the forensic expert reports which diagnosed Mr. Allan with an antisocial personality disorder. She noted that treatment generally involves cognitive behavioural psychotherapy, but that such therapy requires high motivation and commitment from the individual. She noted Mr. Allan’s “dismal history of abiding by parole conditions”. Under the heading “Release Record”, Mr. Allan argues that this statement is inaccurate.
[43] I disagree. The trial judge did not err in saying that Mr. Allan had a dismal history of abiding by parole conditions and an abysmal history of absconding and breaching parole conditions and court orders, which was also noted by the forensic experts. Specifically:
a. His first convictions for fraud when he was 20 years of age were committed while on judicial interim release;
b. While on probation for these fraud convictions, he committed an armed robbery in which he threatened to shoot a teller and stole $1,121;
c. He was on bail when he committed the 1983 manslaughter;
d. He was on an unescorted temporary absence while serving his manslaughter sentence when he violated his parole by going to Toronto, where he used a handgun to rob a man of a $45,000 car, after which he committed a series of offences and was only arrested after a high-speed car chase;
e. A month after being released on day parole in 1992, he absconded from a halfway house in Winnipeg, a parole violation that resulted in the NPB revoking approximately 1,500 days of earned remission. Dr. Eaves testified that this violation showed he was still bucking the rules, was impulsive, and was unable to cope with stress and frustration;
f. In February 2000, he was convicted of multiple offences including failing to appear in court on September 9, 1999. He was sentenced to six months in jail and a two-year driving prohibition;
g. In December 2000, he was convicted of several offences including driving while disqualified. He was sentenced to three months in jail, placed on probation for three years and given a one-year driving prohibition;
h. In December 2001, he was convicted of impaired driving. He was on probation when the offence was committed and had also breached the driving prohibitions imposed in February and December 2000;
i. In July 2003, he failed to report to his probation officer, resulting in a December 2003 conviction for breach of probation and a seven day jail sentence;
j. The appellant was on probation when he committed the index offences on August 29, 2003; and
k. In January 2004, the appellant was sentenced for several offences arising out of a September 13, 2003 high-speed chase on the Sea-to-Sky Highway. He was on probation when these offences were committed.
[44] Under the headings “Psychological Disparities” and “PCLR”, the appellant argues that certain psychological testing scores should have implications which mandate findings different from those made by the judge below.
[45] The appellant argues that the 1993 MMPI results yielded a normal result but were altered by the CSC psychologist to show a negative outcome. He says that the negative outcome was wrongly relied upon by the judge below to conclude that he committed crimes in a particular manner. The appellant argues that the 1992 MMPI and low PCL-R Factor 2 scores require a finding that he does not have an antisocial personality disorder.
[46] First, the appellant has not shown that the 1993 MMPI results were altered, he simply asserts this. The only testimony about the 1993 MMPI results was from Dr. Ley who adopted, without criticism, the summary of those results. Dr. Ley was a defence witness who noted that they were more negative than the 1992 MMPI results.
[47] Second, the trial judge only concluded that Mr. Allan had an antisocial personality disorder after reviewing the evidence of three other experts, Mr. Ouellet, Dr. Eaves, and Dr. Lamba, and the appellant’s extensive criminal history. No expert testified that the 1992 MMPI score and low PCL-R Factor 2 scores weighed against him being diagnosed with an antisocial personality disorder. Indeed, five months after the 1992 MMPI score he absconded while on parole, and thereafter tallied nearly 30 more convictions. The trial judge’s conclusion was reasonable.
[48] Under the heading “PCLR”, Mr. Allan argues that Mr. Ouellet’s and Dr. Lamba’s total and Factor 1 PCL-R scores should be lowered by seven and six points, respectively. These adjustments would put him in the category of a low risk to reoffend. This argument was not made to the trial judge below. Regardless, it was open to the trial judge to accept the testimony of Mr. Ouellet and Dr. Lamba regarding their scoring and interpretation of the test results. There is no merit to this ground of appeal.
[49] Under the heading “Dr. Ley Dr. Howse (sic)”, the appellant argues that treatment and monitoring under an LTSO would alleviate the risk he presents to an acceptable level. He argues that his 1992 MMPI test, together with Dr. Ley’s opinion, entail this conclusion. He says this is supported by post-sentencing CSC reports, his post-sentencing course attendance, and post-sentencing negative drug test results.
[50] First, as the trial judge noted, Dr. Ley did not undertake an assessment of the risk posed by the appellant. Second, Dr. Ley did not contact any of the appellant’s treating professionals. Third, Dr. Ley’s opinion was based on assumptions about the methodology and treatment employed by Dr. Howes, who was treating Mr. Allan at the time the 1992 test was administered, without verifying this with Dr. Howes. Finally, the appellant absconded just five months after the favourable 1992 MMPI test and went on to commit many more offences.
[51] The trial judge relied on the expert evidence before her regarding the appellant’s mental health, his past criminal history, and his very poor record of complying with conditions of release in concluding there was no reasonable possibility his risk of violent re-offending could eventually be controlled in the community. She did so in preference to drawing conclusions from Dr. Ley’s report and the 1992 MMPI test. Her reasons for doing so, noted above, are in my opinion comprehensive and compelling.
[52] Mr. Allan has not applied to adduce fresh evidence. That said, the new information he brings to court, the post-sentencing CSC reports, his post-sentencing course attendance, and post-sentencing negative drug test results, in my view, are not so compelling as to justify an appeal court departing from the usual approach of leaving such developments to correctional authorities in administering the offender’s indeterminate sentence: Sipos at paras. 41-44.
[53] Under the heading “NPB”, the appellant argues that community safety can be ensured through the use of pre-emptive arrest warrants during the currency of an LTSO, and so his designation as a dangerous offender is unjustified. The evidence at trial was that an LTSO can be suspended through execution of a pre-emptive arrest warrant to prevent an anticipated breach or to protect society. Absent a breach, however, the parole officer must cancel the suspension within 30 days, in which case the offender is released back into the community. Alternatively, the parole officer can refer the matter back to the NPB which can either cancel the suspension or allow it to remain in place for 90 days after which the warrant automatically expires, and the offender must be released. In short, absent a breach of the LTSO the most a long-term offender can be held in custody under a pre-emptive arrest warrant is 90 days.
[54] The trial judge gave cogent reasons for rejecting an LTSO, quoted above at para. 32. There is no reason for this Court to interfere with that determination.
[55] Under the heading “Threatening Letter”, the appellant takes issue with the findings which led to his conviction. The appellant appears to take issue with the trial judge’s finding that he wrote a threatening letter to the victim of the predicate offences, his cousin. That he did so is fully supported in the reasons for conviction, and evidence, and is not a matter successfully challenged in his conviction appeal, which was dismissed. Any argument that the appellant did not commit the predicate offences is an impermissible collateral attack on the convictions.
[56] Under the heading “Disclosure”, Mr. Allan argues that the RCMP and Crown have failed to disclose a police report that shows that on the morning of the predicate offences he was seen attempting to take the victim to hospital. This argument was not made to the trial judge and, beyond his assertions, the appellant has provided no evidence that such a report exists or was improperly withheld. The appellant does not connect this with any position he takes in the appeal. There is no merit to this ground of appeal.
[57] I have also reviewed the appellant’s late filed response to the respondent’s factum. That response continues in much the same vein as the appellant’s factum. It is comprised primarily of unproven assertions which are not supported by evidence. Some of those assertions attempt to incriminate his victim in the predicate offences, concerning alleged events that are asserted to have occurred when the appellant was 19 or 20. Other assertions challenge the veracity and expertise of the expert witnesses who testified in this proceeding. The appellant says that the last two parole board hearings were a “waste of time”. Where there are evidentiary references they are selective and, in my opinion, do not prove the assertions made. In his brief oral submissions before this Court the appellant made a bare assertion of a breach of his Charter rights. He advised the Court that his victim, a former lawyer, was now managing a trailer park.
[58] As I have concluded that the judge did not err in imposing the sentence she did, and the designation as a dangerous offender is reasonable, it is unnecessary to address Mr. Allan’s submissions under the heading “Sentencing”, which deal with matters germane to an LTSO.
[59] I have concluded that the judge below did not make any error of law, fact, or mixed fact and law. The dangerous offender designation was reasonable. In the circumstances I would dismiss the appeal.
“The Honourable Mr. Justice Savage”
I agree:
“The Honourable Madam Justice Newbury”
I agree:
“The Honourable Madam Justice Saunders”
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