Provincial Court

IN THE PROVINCIAL COURT OF NOVA SCOTIA

Citation: R. v. Newhook, 2010 NSPC 19

Date: March 1, 2010

Docket: 1757989

Registry: Halifax

Between:

R.

v.

Christopher Edward  Newhook

Judge:                            The Honourable Judge W. B. Digby

Heard:                            May 4, 5, 6, 7, 8 and October 19,20, 2009,

in Halifax, Nova Scotia

Charge:                          Chistopher Edward Newhook on or about the 3^rd  of April 2007 at Halifax, Nova Scotia did unlawfully wound, maim, disfigure or endanger the life of Chris Dempsey thereby committing an aggravated assault, contrary to Section 268(1) of the Criminal Code.

Counsel:                         Catherine Cogswell, for the Crown

Jean Morris, for the defence

By the Court:

INTRODUCTION

[1]                        This is a matter for sentencing.  The Crown has made an application to have Christopher Edward Newhook declared a dangerous offender, pursuant to Section 753(1)(a)(ii) of the Criminal Code.  A “Notice of Dangerous Offender Application” dated April 6, 2009 (Exhibit 3), was served on the parties.  No issue was taken with the form, content or service of the notice. Consent of the Attorney General was proven (Exhibit 16).

[2]                        On June 29, 2007, Mr. Newhook plead guilty to a charge that he did:

unlawfully wound, maim, disfigure or endanger the life of Chris Dempsey thereby committing an aggravated assault, contrary to Section 268(1) of the Criminal Code.

[3]                        There is an agreement (Exhibit 21) signed by both counsel and Mr. Newhook on May 4, 2009, wherein the statement of facts in relation to the predicate offence before the Court (Section 268(1)CC) contained at pages 5 to 9 of the ”Notice of Dangerous Offender Application” are not disputed. 

FACTS

[4]                        These facts are: Christopher Edward Newhook and the victim in this matter both resided at a rooming house situate at 6273 North Street in Halifax.  The victim, Chris Dempsey, lived in Room “D9", and had resided in the building for about eight years.  Mr. Newhook occupied Room “D2" for a couple of months.  Other residents in the building noticed that Mr. Newhook had been drinking alcohol for a couple of days prior to the incident before the Court.  Further, within this time frame Mr. Newhook had been very loud and aggressive within the building.

[5]                        On the night of April 2, 2007, Mr. Newhook was in his room hollering, pounding on walls and drinking alcohol with a friend, one D G.  The noise continued for approximately 30 to 40 minutes.  Mr. Newhook damaged the closet door in his room and subsequently showed the damage to another resident.  The superintendent went to Mr. Newhook’s room and told him to keep the noise down. Mr. Newhook complied.

[6]                        On April 3, 2007, at approximately 8:30 or 8:45 p.m.,  Chris Dempsey was in his room. Mr. Newhook was in the hallway hollering: “Who ratted me out...fuck you, fuck you,” repeatedly and very loudly.  Mr. Dempsey opened his door, stuck his  head out and told Mr. Newhook that he had to go to work in the morning.  He asked Mr. Newhook to “keep it down.” Mr. Newhook came down the hall and asked Mr. Dempsey if he ratted him out.  Mr. Dempsey said he didn’t even know who Mr. Newhook was and asked him again to keep it down. Mr. Newhook  said “okay” and went back to his room.

[7]                        Approximately 20 minutes later there was a “soft” knock at Mr. Dempsey’s door. He opened the door. Mr. Newhook was standing there.  He had a knife in his right hand which was raised in the air.  He then stabbed Mr. Dempsey in his head just above his right eye. Mr. Dempsey described the events in a statement dated April 3, 2007:

The next thing I remember him coming at me moving towards me and me being struck in the head.  I grabbed his hand with the knife which was, I believe, his right hand and twisted it behind his head as hard as I could.  I hit him in the face and pushed him up against something in my apartment.  I was trying to force him to the floor and that is when I saw the other guy at my door.  I saw the right side of his body and a knife at the side of his right leg.  The guy that stabbed me I forced him to the floor of my apartment.  I was holding him down and somehow managed to close, then lock my door. I got the knife away from him.  I threw it away from him.  The entire time his friend was outside my door saying, “I am going to cut you and kill you”.  The guy that stabbed me kept trying to get up.  I kept hitting him to keep him down.  We were sort of wedged between the front door and my fridge.  As soon as you go through the front door you see my fridge, so when the door was closed there is only so much space between the two.  So I was trying to hold him down,  but  keep my body weight against my door so that the other guy could not get in.  Eventually the kicking at the door stopped.  The guy that stabbed me was not fighting as much because he was getting tired.  I was screaming for help and no one was coming.  I looked down at  his face and he was covered in my blood.  So I told him that he was hurt and to hold still.  At that point he started to calm down.  I grabbed a towel and wiped his face.  I asked him, “why did you try to kill me?” and he said, “why did you rat me out?”  I told him that I didn’t know who he was and asked him what his name was because I was trying to calm him down.  He said his name is Chris and I said, “ya, mine too”.  I told him that I didn’t rat him out and he asked for his shoe.  Then he asked me to come to his apartment for a drink.  I got him out my front door.  He started to walk to his apartment.  I locked my door and went the other way and ran as fast as I could.  The next thing is kind of blurry, but I was downstairs talking to Grace asking her to call the cops and she said that they were on their way.

[8]                        The knife was a kitchen-type steak knife with a dark handle and a blade approximately six- inches long. The “other guy”, D G, who stood outside Mr. Dempsey’s door, had the same type of knife.

[9]                         Mr. Dempsey was treated at the QEII Health Sciences Centre Emergency on that same night.  He received six sutures to close the “2 cm vertical laceration” to his right eyebrow, which was described by the treating physician as “deep and gaping.”  Mr. Dempsey also received a black eye as a result of the incident.

[10]                   The police arrived at the rooming house at about 9:05 p.m.  They knocked on Mr. Newhook’s door but he did not answer.  He was pretending to sleep on the bed and D G was hiding in the closet.  The superintendent unlocked the door, at which time the police took both Mr. Newhook  and D G into custody.

[11]                   Mr. Newhook provided a cautioned statement to the investigating officer near midnight on April 3 to 4, 2007.  In that statement, he described Mr. Dempsey and other people living on his floor of the rooming house as “pieces of shit” and “oh, fucking rat pieces of shit.  Fucking goofs.”

[12]                   On several occasions in his statement Mr. Newhook indicated that “I wish I would have cut her hand off”  referring to the superintendent who let the police into his room.

[13]                   Numerous times in his statement, Mr. Newhook referred to himself as a “D.O.” or “dangerous offender.”  He said several times that he thought he stabbed Mr. Dempsey in the neck.

[14]                   D G was not charged.                                                                CRIMINAL CONVICTIONS

[15]                  Mr. Newhook’s date of birth is July 15, 1969, and his criminal convictions (Exhibit 8) are as follows:

[16]                   Not surprisingly, in more than one instance there was a difference in perspective between the Crown and Defence on the facts involved in prior convictions.  There is something to be said for the practise of having the facts put into the record at the time of plea and requiring the accused personally, not through counsel, to state whether he or she agrees with the facts and, if not, the details of any disagreement.  It is difficult, if not impossible, to resolve disputes as to the facts years later.

[17]                   In this particular case, it is not necessary to resolve disputes as to the facts or go into the details of the viciousness and brutality of the offences and the consequences to the victims. This is because the Agreement (Exhibit 17) dated May 4, 2009, signed by both counsel and Mr. Newhook states:

Counsel for the Crown and Christopher Edward Newhook agree that Christopher Edward Newhook meets the criteria for a designation of either a Dangerous or Long-Term Offender pursuant to section 753(1)(a)(ii) of the Criminal Code.  That is, counsel agree that the aggravated assault committed by Christopher Edward Newhook is a serious personal injury offence described in section 752(a) C.C. and that Christopher Edward Newhook constitutes a threat to the life, safety or physical or mental well being of other persons on the basis of the evidence which establishes a pattern of persistent aggressive behaviour by Christopher Edward Newhook, of which the offence to which he has plead guilty forms a part, showing a substantial degree of indifference respecting the reasonably foreseeable consequences to other persons of his behaviour.

[18]                   This agreement reached by counsel is one that is well supported by the evidence and reflects a conclusion that would inevitably have been reached by the Court in the absence of any agreement.  The Court is satisfied that the elements of a pattern of behaviour as canvassed by the British Columbia Court of Appeal in R. v. Dow, [1999] BCJ 569, page 21, are amply demonstrated here.

In short, the significance and the relevance of common elements of the pattern must be determined by whether they tend to show first, repetitive behaviour, second, that there has been a failure in each case to restrain the behaviour, and third, that there has been injury to other persons arising from that failure. If any of those three elements is missing, then there may be a pattern but it will not be a relevant pattern. But if all three are present then the essential elements of a relevant pattern are revealed.   

           LEGAL PRINCIPLES

[19]                   The law is clear that Mr. Newhook should be declared a long-term offender and not a dangerous offender if the purposes of preventative detention can be achieved by such a declaration.

[20]                   In R. v. Johnson, [2003] 2 S.C.R. 357, the Supreme Court of Canada reviewed and analysed both Part XXIV of the Code generally as well as the particular situation where the criteria for both designations have been met.  First, the Court found that the designation of someone as a dangerous offender is a discretionary matter. The court stated as follows at paragraph 27:

Having determined that the phrase "[t]he court may ... find the offender to be a dangerous offender" denotes a discretion, the next issue that falls to be considered is the legal principles and factors that a sentencing judge must consider in the exercise of that discretion. For the reasons that follow, it is our conclusion that one factor that a sentencing judge must consider is the possibility that the sanctions available pursuant to the long-term offender provisions would be sufficient to achieve the objectives that the dangerous offender provisions seek to advance.

[21]                   Second, the Court held that when exercising judicial discretion in relation to this part of the Code the dominant objective is protection of the public, and stated as follows at paragraph 29:

In this case, the sentencing objective in question is public protection: see for example Lyons, supra, at p. 329, and Hatchwell v. The Queen, [1976] 1 S.C.R. 39, in which Dickson J. (as he then was) wrote, at p. 43, that the dominant purpose of preventive detention is "to protect the public when the past conduct of the criminal demonstrates a propensity for crimes of violence against the person, and there is a real and present danger to life or limb". Absent such a danger, there is no basis on which to sentence an offender otherwise than in accordance with the ordinary principles of sentencing. The principles of sentencing thus dictate that a judge ought to impose an indeterminate sentence only in those instances in which there does not exist less restrictive means by which to protect the public adequately from the threat of harm, i.e., where a definite sentence or long-term offender designation are insufficient. 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.

[22]                   Third, the Court analysed the applicability of a dangerous offender designation versus a long-term offender designation, or a determinate sentence when the criteria for dangerous offender have been met.  The Court stated as follows at paragraphs 31-32:

Almost every offender who satisfies the dangerous offender criteria will satisfy the first two criteria in the long-term offender provisions. In virtually every instance in which an offender is declared dangerous, it would have been appropriate to impose a sentence of imprisonment of two or more years in respect of the predicate offence and there will be a substantial risk that the offender will reoffend. In a certain percentage of those cases there will also be a reasonable possibility of eventual control of the risk in the community. In those instances in which the offender currently constitutes a threat to the life, safety or physical or mental well-being of other persons yet there is a reasonable possibility of eventual control of the risk in the community, an offender will satisfy the criteria in both the dangerous offender and long-term offender provisions.

In those instances where both the dangerous and long-term offender provisions are satisfied, it may be that the sentencing sanctions available under the long-term offender provisions are capable of reducing the threat to the life, safety or physical or mental well-being of other persons to an acceptable level. Under s. 753.1(3), long-term offenders are sentenced to a definite term of imprisonment followed by a long-term community supervision order of a maximum of ten years in accordance with the Corrections and Conditional Release Act. Supervision conditions under s. 134.1(2) of the Act may include those that are “reasonable and necessary in order to protect society”. The very purpose of a long-term supervision order, then, is to protect society from the threat that the offender currently poses — and to do so without resort to the blunt instrument of indeterminate detention. If the public threat can be reduced to an acceptable level through either a determinate period of detention or a determinate period of detention followed by a long-term supervision order, a sentencing judge cannot properly declare an offender dangerous and sentence him or her to an indeterminate period of detention.                                       

INSTITUTIONAL AND COURT RECORDS                                                                              

[23]                   In addition to the already referenced exhibits, the Crown produced in evidence  transcripts of Mr. Newhook’s  sentencings (Exhibits13, 14 and 39); Informations (Exhibits 26 and 27); Mr. Newhook’s Correctional Services Canada file (Exhibits 4(a) to 4(e), 11 and 22); his Ontario Ministry of Community Safety and Correctional Service file (Exhibits 5(a) and 5(b)); his Nova Scotia Hospital/East Coast Forensic Hospital file (Exhibit 6); his Central Nova Scotia Correctional Facility file (Exhibit 12); documentation in relation to history of criminal convictions (Exhibits 7 and 8); and facts and material   relating to previous convictions (Exhibits 9,28, 29, 30 and 31).  Some of these items were admitted by agreements (Exhibits 18, 19, 20 and 33) signed by counsel and Mr. Newhook, dated May 4, 2009, which state in part:

Counsel for the Crown and Christopher Edward Newhook agree that the (named) file is a true copy of Christopher Edward Newhook’s file that was created and maintained during the periods of Christopher Edward Newhook’s  (incarceration/visit/stay). Counsel agree the records are unaltered accounts, by personnel who authored the materials, of their observations and conclusions. Counsel further agree that the file can be tendered into evidence without the necessity of the testimony of personnel to explain the maintenance and copying procedures.

[24]                   These materials were in large, three-ring binders which filled in excess of three bankers’ boxes. The Court is most appreciative of these agreements, the outline of which is reproduced here for whatever benefit it may be to those involved in similar applications. The agreements do not necessarily admit the truth of every statement contained in the documents in the files.       PSYCHIATRIC EVIDENCE

[25]                   These materials were available to both psychiatrists, Dr. Grainne Neilson, called by the Crown, and Dr. Mark Pearce, called by Mr. Newhook.  Dr. Pearce interviewed Mr. Newhook at the Springhill Correctional Centre on February 7, 2008.  At that time, Dr. Pearce had Dr. Neilson’s 42-page report dated October 16, 2007, plus an addendum dated November 1, 2007 (Exhibits 1 and 2 respectively).

[26]                   In addition to Dr. Pearce’s report (Exhibit 35), the defence tendered his notes (Exhibit 36); an article entitled “Assessment of Psychopathy as a Function of Age” (Exhibit 37); and an article entitled “Adjusting Actuarial Violence Risk: Risk Assessments Based on Aging or the Passage of Time,” (Exhibit 38).

[27]                   Dr. Pearce does not take issue with the methodology or testing results set out in Dr. Neilson’s report.  The only significant difference in their reports and opinions is their conclusions.

[28]                   Both doctors assessed Mr. Newhook using the Violence Risk Assessment Guide (VRAG) scoring Mr. Newhook at 22, placing him in the eighth highest of nine categories.   For offenders in this category, the probability of violent recidivism is 76% over 7 years and 82% over 10 years.  Compared to the base rate of violent recidivism, Mr. Newhook is nearly twice as likely to commit a violent offence over 10 years compared to the validation sample.

[29]                   Dr. Neilson provided the following explanation of the VRAG:

The VRAG is an actuarial violence risk assessment instrument that was developed by Dr. Vernon Quinsey and others in 1979 at the Maximum Secure Forensic Facility for Ontario at Penetanguishine.  It was constructed using data from a study of over 600 Canadian male offenders which included those with personality disorders, mental disorders and learning disability.  The study identified a set of socio-demographic, criminal history, and clinical variables  (i.e. generally static or unchanging variables) that distinguished between those who re-offended violently and those who did not.

The VRAG is a 12-item instrument designed to assess risk of violent recidivism and gives a numerical value representing the probability of re-offence over periods of 7 years and10 years.

Applied to Mr. Newhook, the indicators associated with increased violence risk on the VRAG include: not living with both biological parents to age 16; elementary school maladjustment; personal and paternal history of alcohol problems, alcohol involved in the commission of offences; criminal history of non-violent offences; failure on prior conditional release; victim injury; no female victim; the presence of personality disorder; absence of schizophrenia; and PCL-R score between 25-34.  There are also two factors associated with lowered risk, namely: older age at index offence and prior common-law relationship.

[30]                   Both Dr. Neilson and Dr. Pearce obtained a result of 31 on the Psychopathy Checklist- Revised (PCL-R).  Results from assessments by other physicians were 29 and 35. Dr. Neilson noted:

In particular, he evidenced the following traits to a large degree i.e. score =2: grandiose sense of self-worth; lack of remorse or guilt; callous/lack of empathy; poor behavioural controls; promiscuous sexual behaviour, early behavioural problems; impulsivity; irresponsibility; failure to accept responsibility for his own actions; revocation of conditional release; and criminal versatility.

[31]                   Dr. Neilson’ report contained the following explanation:

Psychopathy is a clinical construct traditionally defined by a constellation of interpersonal, emotional, and lifestyle characteristics.  On the interpersonal level, psychopaths are grandiose, arrogant, callous, dominant, superficial, and manipulative.  Emotionally, they are short tempered, unable to form strong emotional bonds with others, and lacking in guilt or anxiety.  These interpersonal and emotional features are associated with a socially deviant lifestyle that includes irresponsible and impulsive behaviour, and a tendency to ignore or violate social conventions and mores.

The Psychopathy Check List (Revised) PCL-R is a clinical rating scale that uses a semi-structured interview, case history information, and specific scoring criteria to rate each of 20 items on a three-point scale (0, 1, 2) according to the extent to which it applies to a given individual.  Total scores can range from 0 to 40 and reflect the degree to which the individual matches the prototypical psychopath.  For research and diagnostic purposes, a “cut-off” score of 30 typically is used for psychopathy.  Recent research suggests that the construct underlying the PCL-R is dimensional in nature rather than categorical.

The PCL-R is a commonly used and widely accepted instrument in the field of forensic psychology/psychiatry, developed by Dr. Robert Hare at the University of British Columbia in 1991.  PCL-R assessments are highly valid (i.e. measures what it is designed to measure) and reliable (i.e. measures similarly on repeated administrations) when made by qualified clinicians and researchers.

The PCL-R was designed to measure the extent to which an individual in an inmate/forensic psychiatric population possesses psychopathic traits.  It was not designed primarily to assess risk for recidivism or violence. However because of its demonstrated ability to predict recidivism, violence, and treatment outcome, the PCL-R routinely is used in forensic assessments, either on its own or, more appropriately as part of a battery of variables and factors relevant to forensic psychology and psychiatry.  Individuals rating highly in psychopathic traits have been shown to re-offend violently at persistently higher rates than other offenders.

[32]                   Dr. Neilson also assessed Mr. Newhook using the Historical/Clinical/ Risk Management (HCR-20) method and Spousal Assault Risk Assessment (SARA) method.  In her report, she stated:

The HCR-20 and SARA are guided assessment methods that were developed by academic and forensic mental health professionals affiliated with the Mental Health, Law, and Policy Institute at Simon Fraser University in British Columbia (Drs Randall Kropp, Derek Eaves and others) in 1995.  Neither the HCR-20 nor the SARA are actuarial instruments and thus do not yield normative referenced scores for risk of recidivism.  Rather, they are structured clinical guides employed to ensure proper consideration of pertinent variables (static and dynamic factors) known to be associated with general or domestic violence respectively.

Mr. Newhook’s indicators of increased risk on the HCR-20 are: previous violence, young age at first violent incident, relationship instability, employment problems, substance use problems, psychopathy, early maladjustment, personality disorder, prior supervision failure, lack of insight, negative attitudes, impulsivity, unresponsive to treatment, plans lack feasibility, likelihood of exposure to destabilizers, lack of personal support, non-compliance with remediation attempts, and likelihood of exposure to stress.  Taking into account the variables on the HCR-20, he is judged to be a high risk of future violence.

Mr. Newhook’s indicators of increased risk on the SARA are: past assault of strangers /acquaintances, prior supervision failure, recent employment problems, witness to family violence as a child, recent substance abuse, personality disorder with anger/impulsivity/behavioural instability, past physical spousal assault, and minimisation of spousal assault history, and attitudes that support/condone spousal assault.   Taking into account the variables on the SARA, he is judged to be a moderate risk of future spousal assault.

[33]                   Dr. Pearce assessed Mr. Newhook using the HCR-20 and made the following comment in his report:

Finally, I scored Mr. Newhook using the HCR-20.  In this particular instrument dynamic variables, that is variables that are theoretically changeable, are included.  Mr. Newhook scored 34 out of a possible 40 points on this instrument.  This is a high score and is indicative of a high risk of future violent behaviour, absent significant interventions.

[34]                   He then went on to state:

In addition to the issue of probability, risk assessment also entails addressing issues of imminence, frequency, and severity.  In these domains, we are left with clinical judgment alone.

This gentleman’s serious offending behaviour has taken the form of violent offenses against strangers or near-strangers, and against intimate partners.  At times Mr. Newhook’s violent offending has been planned/premeditated, whereas other offences have been reactive in nature.  He has offended while under the influence of alcohol and/or illicit substances, and also in the absence of any such substances.  Certain assaults have been relatively benign in nature, on the spectrum of assaultive behaviour, while others have led to significant sequelae to the victims involved.  As such, it appears that the issues of imminence, frequency, and severity are all live with respect to this gentleman’s offending behaviour.

[35]                   During the trial, Mr. Newhook demonstrated difficulty in controlling his emotions.  The more noteworthy outbursts occurred during Crown summation when he forcefully struck the back of his  head against the wall behind the prisoners’ bench.  Moments later, he erupted, saying:

Maggot.  Parasite.  Your mother’s a goof for giving birth to you.  I hate your fucking guts.  I wish I could cut your head off with a rusty fucking hack-saw blade, you maggot.  I respect him, but I do not respect you.  I hate you.  Beyond fucking rationality, I hate you.  Fucking biased against me totally.  Yeah.          

Seconds later he referred to the same Crown as a “fucking goof,” “fucking idiot” and “stupid bitch.”

[36]                   At this time, Mr. Newhook did not appear to be under the influence of alcohol or drugs.  Mr. Newhook well understood what was at stake for him in these proceedings but was unable to control himself.                                          

EXPERT PSYCHIATRIC CONCLUSIONS

[37]                   Dr. Neilson’s conclusions arise directly from the definitions of long-term offender and dangerous offender as laid out in s.752.1 of the Criminal Code of Canada, and are as follows:

1)  It is clear that Mr. Newhook has caused significant physical and likely psychological, harm to his victims.  There is no psychiatric or medical evidence to suggest that he would have been unable to control his impulses, or conform his behaviour to societal norms. 

2)  There are no psychological operational criteria with regard to ‘brutality’, or ‘indifference’ (i.e. the intent of the offender to inflict harm, the amount of suffering endured by the victim and/or the extent of the injuries inflicted) therefore no comment is made in this regard. 

3)  In arriving at a professional judgment concerning Mr. Newhook’s risk of violent recidivism I have considered risk assessment instruments that weigh both static and dynamic factors for the risk of future violence, and relevant case-specific factors.  Based on this comprehensive risk assessment, it is my opinion that Mr. Newhook poses a high risk of re-offending violently, compared to the general offender population.

4)  From a clinical standpoint, Mr. Newhook has shown a persistence of violent behaviour throughout his life.  There are no relevant psychological operational criteria for “pattern” as it relates to violent offending.   While it is never possible to predict exactly the form that future violence may take, when it will occur, or indeed, if it will occur, it is noted that Mr. Newhook has a well-entrenched history of violent behaviour including violent offending that has persisted largely unabated since his teens.  The random nature of the offence behaviour that is on his criminal record (i.e. intoxicated v. sober; female v. male victims; racially motivated v. not; strangers v. intimates; use of weapon v. not, instrumental v. reactive violence etc.) makes predicting the form of any future violence impossible.  However, there appears to have been little change in the severity of the offending, and considering the periods he has had liberty in the community, there does not appear to have been much of an abatement of rate of offending.  In addition, his violent lifestyle and behaviours have persisted both within the community and within the confines of the correctional institutions in which he has been held.  While the risk of violence for many offenders diminishes over time, for those with psychopathy (as is the case with Mr. Newhook) this is not typically the case, leading to the conclusion that Mr. Newhook’s past violent behavioural pattern will predict his future one.

Acknowledging that the Court may also be examining this case in the context of long-term offender legislation, and examining the question of whether there is a reasonable possibility of eventual control of this risk in the community, the following comments are offered in this regard:

- Mr. Newhook’s treatment and rehabilitative needs are extensive and would require considerable coordination of multiple treatment providers and service agencies, both within the Institutional Correctional environment any [sic] upon any future release.

- Eventual control of any offender in the community is predicated on their willingness to be fully involved in, consistently cooperative with, and honestly engaged in, their Correctional Plan, both within the institution and post-release.  This includes participating in any recommended treatment and rehabilitative efforts and engaging in an honest reporting relationship with their correctional supervisors.   The aim of a plan is to facilitate the development of an offender’s internal controls, such that external controls eventually become redundant.  Community management should only be attempted after Mr. Newhook has successfully demonstrated (over a sustained period of time) that he is willing to fully participate in, and demonstrate benefit from, relevant institutional treatment programs.

- Even so, the Court is reminded that the presence of psychopathy is known to be a robust factor for criminality and the prediction of future violence.  The propensity for psychopaths to engage in instrumental violence and aggression decreases very little with age.

- Mr. Newhook appears to have had the full benefit of programs and services offered by Correctional Services of Canada, with the exception of the Violence Prevention Program from which he was evicted.  However, based on his sub-optimal response to programming thus far, his subsequent performance on release, the presence of psychopathy, and the poor prospect of any significant attenuation of his violent tendencies with advancing age, it is unlikely that participation in this program with [sic] make a substantial reduction in his overall risk.  It is thus unlikely that safe release into the community will be an attainable future goal in the absence of long-term external controls.

- In addition to treatment response, eventual community management is also predicated on the availability of the appropriate rehabilitation programs/treatments/supervision for his level of risk in the community. The degree to which Correctional Service of Canada could provide appropriate community programs, supervision, monitoring, and housing is unknown to me.

[38]                   To be clear, Dr. Neilson, in her oral evidence, indicated her opinion that the risk to the public presented by Mr. Newhook cannot be effectively managed by a long-term offender order.

[39]                   Dr. Pearce concludes his report with the following:

In summary, the possibility that Mr. Newhook will be manageable in the community upon the expiry of his LTSO is somewhat mixed.  His age at that time provides reason for optimism regarding his propensity to violence.  Conversely, there remains some concern as regards his willingness to participate in treatment, namely substance abuse treatment.  Finally, this gentleman may experience difficulty finding employment and/or emotional support upon eventual release.  Intensive treatment in multiple domains, including the pharmacological realm, may assist with Mr. Newhook’s propensity to violence.

Given these considerations, and weighing the aforenoted factors, I am of the opinion that this gentleman’s advanced age, along with the certainty of intense and prolonged treatment, provides reason for optimism as regards reducing the likelihood of future violent behaviour.

Should the Court determine that Mr. Newhook is suitable for designation as a Long-Term Offender, clinical/dynamic factors and criminogenic variables highlight areas where intervention should be attempted to try to manage the risk posed by him in the community.  In my opinion, if Mr. Newhook is placed in the community, the following structures and conditions should be put in place:

1.  Mr. Newhook should access and complete a wide variety of programs during a period of incarceration, including but not limited to, anger management, cognitive skills, substance abuse, and programs to deal with antisocial attitudes.  He should also be assisted in accessing vocational programs to assist him with any eventual transition to the community.

2.  He should continue with these programs upon any eventual release into the community. This will be of the utmost importance in decreasing the likelihood of re-offense.  I note that he was previously recommended for “booster” programs, in which he did not participate.  I expect that he will require such programming for several years, in addition to ongoing substance abuse treatment, as well as regular screening and monitoring for alcohol and illicit drug use.  Any violation of these conditions should result in his immediate return to detention.

3.  He should be subject to intense supervision upon any eventual release to the community; I would envision residential placement in a correctional facility for an extended period of time (several years), with privileges for any unsupervised time away from the facility being earned through demonstrated compliance with programs and supervision.  Any release should only take place on a graduated and slow basis, allowing for rapid intervention (breach) should Mr. Newhook fail to comply with all conditions.

4.  Mr. Newhook should be prohibited from having contact with any criminally oriented or substance-abusing peers outside of correctional facilities.

5.  Consideration should be give to treating Mr. Newhook with the anti-alcohol medication, Abstain during any planned eventual release.  Compliance with such treatment would need to be strictly monitored.

6.  Mr. Newhook’s whereabouts when outside the facility should be subject to verification initially on at least a daily basis and probation/parole officers should make regular, unannounced visits should Mr. Newhook reside outside of a correctional facility.

7.  If Mr. Newhook enters into an intimate relationship, that partner should be contacted by the authorities, and should be fully informed of Mr. Newhook’s history.  She should be advised to contact police immediately if there is any reason to fear that Mr. Newhook is about to act aggressively, or has resumed use of any substance.

[40]                   Central to the difference of opinion between Dr. Neilson and Dr. Pearce is the view that each takes of the effect of advancing age on the future behaviour of Mr. Newhook.  Dr. Neilson does not consider advancing age to be a significant factor in the level of risk presented by Mr. Newhook.  Dr. Pearce is of the view that psychopaths are no different from violent offenders generally.  At page 8 of his report he states:

According to the research literature, there appears to be a general decrease in violent offending as offenders enter middle age.  This is likely non-specific in nature and may be related to biological variables such as decreased testosterone, decreased physical prowess and the development of various medical conditions.  However, this decrease in violent offending may not apply equally to all offenders.  That is, individuals scoring high on the PCL-R may not demonstrate as substantial a reduction in violent recidivism as other, non-psychopathic offenders, particularly prior to the age of 40.  Unfortunately, and for various reasons, there is little empirical literature on recidivism rates of psychopathic offenders in their sixth decade of life.  As such, it is not clear the extent to which such older psychopathic offenders will continue to be violent, particularly after the age of 50.  Clinical lore suggests that these offenders “burn out”; certainly psychopathic offenders in their seventh or eighth decade of life have greatly reduced rates of violent recidivism.

[41]                   Assuming this to be a valid proposition for the purposes of discussion,  factoring in the effects of aging does not provide any guidance specific to the issue of if and when Mr. Newhook’s behaviour will become manageable in the community. It is akin to an actuarial-based prediction, without the precision,  estimating what percentage of all 40-year olds (Mr. Newhook’s current age) alive in a given country will die in any given year or the cause of death. It does not assist in determining the outcome for a specific individual as must be done here. The healthy and robust members of society may be less at risk should Mr. Newhook’s physical prowess diminish over time but the weak, the sick, the infirm, the elderly, the inexperienced, the inattentive and the outnumbered are vulnerable.

[42]                   The evidence at trial, including the evidence of Mr. Tousignant, from Correctional Services Canada, indicates that all of the programs offered by Correctional Services Canada have been available to Mr. Newhook.  His participation in these programs has ranged from quite acceptable to unacceptable, for example:  his expulsion from an anger management course for inappropriate behaviour related to his dissatisfaction with his evaluation.  Mr. Newhook’s rate of recidivism, and violations of court orders and parole conditions, are convincing proof that these programs have not been successful in assisting Mr. Newhook to change his behaviours.  There is no realistic basis to conclude that more of the same will have a different result.

[43]                   There is no reason to hope that Mr. Newhook will, in future, be more compliant with terms and conditions of release designed to manage his release.  The Court is satisfied on all of the evidence, including again the evidence of Mr. Tousignant, that the high level of supervision needed by Mr. Newhook does not exist within the current statutory framework, the Corrections and Conditional Release Act,  and the reality in which Correctional Services Canada currently and foreseeably operates.

[44]                   The Court accepts and adopts the opinion of Dr. Neilson and does not accept the opinion of Dr. Pearce for the reasons just stated. The time, care, effort and expertise evident in both reports is most appreciated.

[45]                   The Court concludes that Mr. Newhook meets the criteria for designation as a dangerous offender under section 753(1)(a)(ii) of the Criminal Code. He is therefore sentenced to an indeterminate term of imprisonment.  Mr. Newhook has pleaded guilty to and been convicted of an aggravated assault offense under section 268 of the Criminal Code punishable by up to fourteen years’ imprisonment, a serious personal injury offense under the Code. The Court finds the evidence supports Mr. Newhook’s admission that he constitutes a threat to the life, safety or physical or mental well being of other persons on the basis of the evidence which establishes a pattern of persistent aggressive behaviour, including the present offence, and shows a substantial degree of indifference respecting the reasonably foreseeable consequences to other persons of his behaviour. The Crown has met its burden of establishing that a Long-Term Supervision Order would not be sufficient to reduce to an acceptable level the risk Mr. Newhook’s behaviour  presents to the community. It is tragic for both society and Mr. Newhook that Mr. Newhook, suffering–not by choice–from psychopathy and an antisocial personality, has been unsuccessful in managing his own behaviour in the community and must lose his liberty as a result.

Dated this 1^st day of March 2010

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William B. Digby, JPC