PROVINCIAL COURT OF NOVA SCOTIA

Citation: R. v. Martin, 2014 NSPC 124

 

Date: August 18, 2014

Docket: 2050000-6

Registry: Dartmouth

Between:

 

Her Majesty the Queen

 

v.

 

James JOSEPH Martin

 

 

 

 

A ban on publication under section 486.4 & 486.5 has been ordered.  Bans ordered under these sections direct that any information that will identify the complainant, victim or witness shall not be published in any document or broadcast or transmitted in any way. No end date for the Ban stipulated in these sections.

 

Reporting of this proceeding in any manner that would identify the name of any individual whose name is covered by the Ban is strictly prohibited without leave of the Court. The intent of the foregoing is to protect the welfare of any children or victims referred to in the proceeding and/or avoid prejudice to any persons facing criminal charges

 

 

PROVINCIAL COURT OF NOVA SCOTIA

Citation: R. v. Martin 2014 NSPC 124

 

Date: August 18, 2014

Docket: 2050000-6

Registry: Dartmouth

Between:

 

Her Majesty the Queen

 

v.

 

James JOSEPH Martin

 

 

 

EDITORIAL NOTICE:   Identifying information has been removed from this electronic copy of the judgment.

 

Judge: The Honourable Frank P. Hoskins

 

Decision:       August 18, 2014

 

Charges:       That on or about the 15^th day of May, 2009, at or near Dartmouth, Nova Scotia, did unlawfully assault A.M.C., contrary to section 266 of the Criminal Code.

 

And Further that he at the same time and place aforesaid, did knowingly utter a threat to A.M.C. to cause death or bodily harm to the said A.M.C., contrary to section 264.1(1)(a) of the Criminal Code.

 

And Further that he at the same time and place aforesaid, did unlawfully commit a sexual assault on A.M.C., contrary to section 271(1)(a) of the Criminal Code.

 

And Further that he at the same time and place aforesaid, did unlawfully steal a motor vehicle, to wit, a 2003 Ford Focus, of a total value not exceeding $5,000.00, the property of A.M.C., contrary to section 334(b) of the Criminal Code.

 

And Further that he at the same time and place aforesaid, did attempt to choke or suffocate or strangle A.M.C. by placing his hands around her mouth and neck, contrary to section 246(a) of the Criminal Code.

 

And Further that he at the same time and place aforesaid, while bound by a Long-Term Offender Supervision Order issued on the 14^th day of April, 2000, did wilfully fail without reasonable excuse to comply with such order, to wit, “reveal any intimate relationships with women to your CSC supervisor” contrary to section 753.3(1) of the Criminal Code.

 

And Further that he at the same time and place aforesaid, while bound by a Long-Term Offender Supervision Order issued on the 14^th day of April, 2000, did wilfully fail without reasonable excuse to comply with such order, to wit, “obey the law and keep the peace” contrary to section 753.3(1) of the Criminal Code.

 

Counsel:        Melanie Perry for the Crown

                        Michelle James for the Crown

                        J. Patrick Atherton for Defence

 

 

 

 

 

By The Court:

[1]              This is the decision in relation to the Crown’s application to have Mr. James Joseph Martin declared a dangerous offender and sentenced to an indeterminate period of detention. Mr. Martin is opposed. He submits that the application should be dismissed and that a determinate sentence and Long Term Supervision Order (LTSO) be imposed.

[2]              This decision had been reserved for several months, mainly, to provide the Court with the opportunity to review thousands of pages contained in fourteen volumes of material relating to Mr. Martin which were tendered as exhibits in the hearing.

[3]              Although this matter has been before the Court for an inordinate amount of time, each adjournment was granted for appropriate reasons and I am indebted to Counsel for their able submissions which were clear, concise and thoughtful.

[4]              In my view, while it is always preferable to expedite matters in an efficient and effective manner, occasionally a matter such as this application, which involved reading thousands of pages of documents, requires patience, diligence and much more time, particularly given the serious nature of the proceedings.   Unfortunately, in Provincial Court, where court dockets are extremely busy and resources are stretched, it is often difficult to expedite matters involving immensely serious issues coupled with voluminous materials. For that reason, I wish to acknowledge the assistance of Counsel in cooperating with each other and with the Court in trying to expedite this proceeding, without prejudicing their respective interests. Your cooperation is much appreciated, as was your diligence and commitment to the professional traditions of the Bar.

[5]              In this case, the defence does not dispute that on the totality of the evidence, the Crown has established that Mr. Martin should be declared a dangerous offender. Mr. Atherton, for the defence, however, submits that while the dangerous offender designation is for Mr. Martin, he opposes the Crown’s request to have Mr. Martin sentenced to an indeterminate sentence. He contends that the appropriate disposition for Mr. Martin is not an indeterminate sentence, but rather a determinate sentence in the range of five to ten years, followed by a long-term offender supervision order.

[6]              Thus, the central issue in this case is whether the appropriate disposition for Mr. Martin is a determinate or an indeterminate sentence.

[7]              In considering this issue, I have carefully considered the following:

a)     the statutory framework for the application; 

b)    the nature of the hearing, standard of proof and manner of proof;

c)     the nature and quality of the evidence adduced at the hearing;

d)    Mr. Martin’s personal history;

e)     the particulars of the predicate offence that forms the foundation of the application;

f)      the previous criminal offences for which Mr. Martin has been convicted, particularly the offences involving violence;

g)     Mr. Martin’s response to and conduct surrounding past treatment and/ or supervision;

h)     a review of the psychiatric evidence and assessment report of Dr. Neilson;

i)       whether the Crown has proven, beyond a reasonable doubt, the statutory criteria set out in s. 753 of the Criminal Code, and

j)       whether there is a “reasonable expectation that a lesser measure will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

The Procedural Requirements

[8]              There are a number of conditions precedents that must be satisfied before the Court can consider a dangerous offender application. In this case, all of the procedural requirements have been met.

[9]              On May 21, 2010, Mr. Martin pleaded guilty to four indictable offences contained on a seven count Information. Two of the four offences for which he pleaded guilty are serious personal injury offences as defined in sections 752 and 753 of the Criminal Code. He pleaded guilty to sexual assault, contrary to s. 271(1) of the Criminal Code, which imposes a maximum punishment for a term not exceeding 10 years of imprisonment. And he pleaded guilty to the offence of attempts, by any means, to choke, suffocate or strangle another person, contrary to s. 246 of the Criminal Code, which imposes a maximum punishment of life imprisonment.

[10]         It was acknowledged by counsel for Mr. Martin that the predicate offences were serious personal injury offences as defined by s. 752 of the Criminal Code.

[11]         These two predicate offences were committed on May 15, 2009, in Dartmouth, Nova Scotia, against the same victim, A.M.C..

[12]         Pursuant to s.752.1 of the Criminal Code, an Assessment Report was ordered on May 21, 2010, and an extension was granted on July 13, 2010. The report was prepared and filed with the Court on August 12. 2010. The assessment was performed by Dr. Grainne E. Neilson, a forensic psychiatrist with the East Coast Forensic Hospital. Dr. Neilson testified as an expert witness in this hearing. Her qualifications were not contested by the defence.  She was qualified as a forensic psychiatrist able to provide opinion evidence in psychiatry including but not limited to: the practice and treatment of mental disorders; the diagnosis and classification of violent and/or sexual offenders; the assessment of risk for future offence and recidivism for violent and/or sex offenders; the treatment of violent and sexual offenders; and the risk of psychological harm to victims caused by sexual and/or violent offenders.

[13]         The consent of the Attorney General to make this application was obtained in accordance with s. 754(1)(a) and filed with the Court.

[14]          Mr. Martin was promptly notified of the Crown’s application, in accordance with s. 754(1)(b) of the Criminal Code. The written Notice of Application was served within seven days in advance of the hearing, and properly outlined the basis on which the application was being made. The Notice of Application was filed with the Court.

[15]         On June 24, 2013, the application commenced.

The Law

[16]         Before embarking upon an analysis of the central issues in this case, I will touch upon the relevant statutory provisions, and case law, followed by a review of the evidence adduced in the hearing, which includes a review of Dr. Neilson’s evidence.

The Statutory Framework

[17]         The Criminal Code sets out the process by which an offender may be declared and sentenced as a dangerous offender. In essence, this process requires:

a)     the Crown to establish that the conditions precedent to the application have been complied with;

b)    the Crown to prove beyond a reasonable doubt that the convicted offender meets one or more of the four definitions of a dangerous offender, and,

c)     if the Court determines the conditions precedent have been met, and that the offender fits within one or more of the definitions, then the Court must decide if an indeterminate sentence is appropriate or if a lesser penalty will adequately protect the public.

[18]         Part XXIV of the Criminal Code provides a sentencing regime for dangerous and long-term offenders. First enacted in 1947, these provisions of the Criminal Code have been amended in 1997, and most recently in July 2, 2008.

[19]         Prior to 1997, if the offender met one or more of the definitions of a dangerous offender, then the court was required to make the designation. The court had the discretion to impose either a determinate or indeterminate sentence.

[20]         In 1997, the concept of a Long-Term Offender was introduced. The court was given the discretion not to declare a convicted offender to be a dangerous offender, even if the offender met one or more of the definitions. Instead, the offender could be designated a long-term offender and sentenced to a determinate sentence, followed by up to ten years of supervision in the community. The court’s discretion was primarily influenced by whether there was a reasonable possibility of eventual control of the accused’s risk in the community (see s. 753.1(1)(c) and R. v. Johnson, 2003 SCC 46). If the court declined to exercise its discretion, the offender was declared a dangerous offender and sentenced to a mandatory period of indeterminate custody.

[21]         The effect of the 2008 amendments has shifted judicial discretion to the sentencing stage. Once the court declares an offender to be a dangerous offender, there are three possible sentences available: (i) an indeterminate sentence, (ii) a determinate sentence coupled with a long-term supervision order, and (iii) an indeterminate sentence. However, it should be stressed that s. 753(4.1) of the Criminal Code limits this discretion regarding sentencing; in that, it creates a statutory presumption that an indeterminate sentence shall be imposed unless the court is satisfied on the evidence that there is a reasonable expectation of that a lesser measure will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. The lesser measures include either a determinate sentence with up to ten years of supervision, or a determinate sentence with no supervision order.

The Purpose of the Dangerous Offender Regime

[22]         The primary purpose of the dangerous offender regime is the protection of the public. (R. v. L.(T.P.), [1987] 2 S.C.R. 309. In L. (T.P), La Forest J. explained that preventive detention under the dangerous offender regime goes beyond what is justified on a “just deserts” rationale based on the reasoning of a given case, the nature of the crime and the circumstances of the offender call for the elevation of the goal of protection of the public over the other purposes of sentencing. LaForest, J. confirmed at para. 44 that the legislation was designed, “to carefully define a very small group of individuals whose personal characteristics and particular circumstances militate strenuously in favour of preventive incarceration”.

[23]         In R. v. Jones, (1994) 89 C.C.C. (3d) 353, Gonthier, J., in delivering the judgment for the Supreme Court of Canada, at p. 396, wrote:

Section 753 seeks to protect society against offenders who constitute "a threat to the life, safety or physical or mental well-being of other persons". As La Forest J. noted at pp. 328-29 of Lyons:

It must be remembered that the appellant was not picked up off the street because of his past criminality (for which he has already been punished), or because of fears or suspicions about his criminal proclivities, and then subjected to a procedure in order to determine whether society would be better off if he were incarcerated indefinitely. Rather he was arrested and prosecuted for a very serious violent crime and subjected to a procedure aimed at determining the appropriate penalty that should be inflicted upon him in the circumstances.

...

It is thus important to recognize the precise nature of the penological objectives embodied in Part XXI. It is clear that the indeterminate detention is intended to serve both punitive and preventive purposes. Both are legitimate aims of the criminal sanction. Indeed, when society incarcerates a robber for, say, ten years, it is clear that its goal is both to punish the person and prevent the recurrence of such conduct during that period. Preventive detention in the context of Part XXI, however, simply represents a judgment that the relative importance of the objectives of rehabilitation, deterrence and retribution are greatly attenuated in the circumstances of the individual case, and that of prevention, correspondingly increased.

[24]         The Supreme Court of Canada in Johnson, at para. 20, reaffirmed that the “indeterminate detention under the dangerous offender regime is warranted only insofar as it actually serves the purpose of protecting the public”.

[25]         The aim of the provisions is not punishment but rather the prevention of future violence and the protection of the public from potentially dangerous offenders (Jones).

[26]         Recently, Cromwell J., in delivering the judgment of the Supreme Court of Canada, in R. v. Sipos, 2014 S.C.C. 47, commented on the legal framework of the dangerous offender and long-term offender regimes. At paras. 19 to 23 he wrote:

The dangerous offender and long-term offender provisions found in Part XXIV of the Criminal Code are both examples of preventive sanctions. While they may only come into play once the offender has been convicted of offences of a certain degree of seriousness, their focus is on imposing special measures on the offender in order to address an elevated risk of future offending. A dangerous offender may be sentenced to an indeterminate sentence of imprisonment; this is preventive detention in its clearest and most extreme form. A long-term offender may be sentenced for the underlying offence and, in addition, to a long-term supervision order not to exceed 10 years. This is a preventive sanction that is finite in length and built on supervision in the community.

For the purposes of this appeal, s. 753(1)(b) is the relevant provision in relation to Mr. Sipos' designation as a dangerous offender. Before the designation may be imposed, the offence for which the offender has been convicted must be a "serious personal injury offence". Serious personal injury offences include offences involving the use or attempted use of violence for which the offender may be sentenced to imprisonment for at least 10 years and a number of specified sexual offences: s. 752. There is no question that Mr. Sipos' convictions qualify. The remaining elements required for the designation are both retrospective and prospective. The offender must be shown to have failed in the past "to control his or her sexual impulses" and, in the future, that there is "a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses": s. 753(1)(b).

The long-term offender provisions permit the court to impose a sentence for the offence for which the offender has been convicted and order that he or she be subject to long-term supervision for a period that does not exceed 10 years: s. 753.1(3). In order to make a long-term offender designation, the court must be satisfied that it would be appropriate to impose a sentence of imprisonment of at least two years for the offence for which the offender has been convicted, that there is a substantial risk that the offender will reoffend; and that there is a reasonable possibility of eventual control of the risk in the community: s. 753.1(1).

The two regimes must be considered together. At the time of the sentencing judge's decision, the version of s. 753 in force was the same as the one interpreted by this Court in Johnson. The Court held that if a sentencing judge is satisfied that the long-term offender provisions are sufficient to reduce the risk to the life, safety or physical or mental well-being of other persons to an acceptable level, the judge "cannot properly declare an offender dangerous and thereupon impose an indeterminate sentence, even if all of the statutory criteria have been satisfied": Johnson, at para. 40. Failure to consider these options became known as the "Johnson error". There is no dispute between the parties that the sentencing judge made it in this case and it has not been suggested that the 2008 amendments to the provisions (S.C. 2008, c. 6) affect that conclusion in this case.

The Statutory Criteria

[27]         Section 753 of the Criminal Code sets out the criteria that the Court must be satisfied of for an offender to be declared a dangerous offender. It provides: 

s. 753(1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied

(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing

(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour,

(ii) a pattern of persistent aggressive behaviour 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

(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.

[28]         Section 752 defines a serious personal injury offence as:

(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 s. 271(sexual assault) …

Defining Dangerous: The Four Elements

[29]         The Crown must prove that the predicate offence is a serious personal injury offence as defined in s. 752. Following the proof of this prerequisite the Crown must prove that the offender is a dangerous offender in one of four ways enumerated in s. 753(1)(a)(i), (ii), (iii) or (b).

Section 753(1)(a)(i) - Pattern of Repetitive Behaviour

[30]         The Crown must prove beyond a reasonable doubt: (i) The accused has been convicted of a serious personal injury offence under s. 752(a);

(ii) The accused is a threat to the life, safety or physical or mental well-being of other persons based on evidence

(a) showing a pattern of repetitive behaviour by the accused;

(b) the offence for which he is convicted forms part of the pattern;

(c) the pattern of repetitive behaviour shows a failure to restrain       behaviour;

(d) there is 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 behaviour.

Section 753(1)(a)(ii) - Pattern of Persistent Aggressive Behaviour

[31]         The Crown must prove beyond a reasonable doubt:

(i) The accused has been convicted of a serious personal injury offence under s. 752(a);

(ii) The accused is a threat to the life, safety or physical or mental well-being of other persons based on evidence;

(a) showing a pattern of persistent aggressive behaviour by the accused;

(b) the offence for which he is convicted forms a part of the pattern;

(c) the pattern of persistent aggressive behaviour shows a substantial degree of indifference by the accused to the reasonably foreseeable consequences to other persons of his behaviour.

The Requirement of a Pattern under ss. 753(1)(a)(i) or (ii)

[32]         While the term “pattern” is not defined in the Criminal Code, the definitions under ss. 753(1)(a)(i) and (ii) essentially require a pattern of behaviour, (described differently in each) in respect of which the predicate offence must form a part. Both set out in precise detail the criteria which must be met if the Crown is to establish that the offender’s conduct falls within one of the proscribed patterns of past behavior. (R. v. Neve, 199 ABCA 206)

[33]         In Neve, the Alberta Court of Appeal considered what has to be proven to establish a pattern, at paras. 107 to 108:

[i]f the Crown fails to prove one or more of the required elements, then the proscribed pattern has not been made out. Under s. 753(a)(i), the elements are the following:

1.         A pattern of repetitive behaviour;

2.         The predicate offence must form part of that pattern;

3.        That pattern must show a failure by the offender to restrain his or her behaviour in the past; and

4.         That pattern must show a likelihood of death, injury or severe psychological damage to other persons through failure to restrain his or her behaviour in the future.

[34]         Under s. 753(a)(ii), the required elements are these:

1.         A pattern of persistent aggressive behaviour;

2.         The predicate offence must form part of that pattern; and

3.         That pattern must show a substantial degree of indifference by the offender respecting the reasonably foreseeable consequences of his or her behaviour.

[35]         The Court continued at para. 109:

What do these sections require in assessing an offender's past conduct? First, the type of past behaviour encompassed by these sections is criminal behaviour since the predicate offence, a criminal one by definition, must form part of the pattern of conduct. The dangerous offender legislation is directed at those who hurt people through criminal, as opposed to simply anti-social, conduct. The latter cannot be the foundation for a dangerous offender application.

[36]         In considering the quality of the past behavior, the Court commented at para. 110:

This takes us to the second point: the quality of the past behaviour. Does all criminal behaviour form part of the pattern? In our view, it does not. We read s. 753(a) as requiring that the court be satisfied on two points: (a) that the predicate offence is part of a pattern of behaviour which has involved violent, aggressive or brutal conduct; and (b) that it is likely that this pattern of conduct will continue and will lead to conduct endangering the life, safety or physical well-being of others: see Lyons, supra. Since a predicate offence under s. 753(a) must be a "serious personal injury offence" (meaning that it itself must meet either a violence or endangerment requirement under s. 752(a)), it follows logically that the past behaviour must also have involved some degree of violence or attempted violence or endangerment or likely endangerment (whether more or less serious than the predicate offence). Otherwise, the predicate offence would not be part of that pattern.

[37]         At para. 111, the Court suggested how repetitive behavior and aggressive behavior can be established:

Third, repetitive behaviour under s. 753(a)(i) and persistent aggressive behaviour under s. 753(a)(ii) can be established on two different bases. [Persistent in this context has been equated with repetitive: Yanoshewski, supra.] The first is where there are similarities in terms of the kind of offences; the second where the offences themselves are not similar in kind, but in result, in terms of the degree of violence or aggression inflicted on the victims. Either will do. Thus, the mere fact that an offender commits a variety of crimes does not mean that no pattern exists. There is no requirement that the past criminal actions all be of the same or similar form, order or arrangement; though if this has occurred, it may well suffice.

[38]         Lastly, at para. 112, in reference to s. 753(1)(a)(i), the Court quoted approvingly the British Columbia Court of Appeal decision in R. v. Dow, 199 BCCA 177, wherein Lambert, J.A., at para. 112, wrote:

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.

The one qualification we would add to these comments is that it is not necessary that the past conduct have led to actual injury. Attempted serious violence and likely serious endangerment of life, safety or physical well-being or severe psychological harm may well be adequate.

[39]         In R. v. George, (1990) 126 C.C.C. (3d) 384, at paras. 15-19, the British Columbia Court of Appeal, commented that in determining what constitutes a pattern of persistent aggressive behavior, the Court should distinguish between childhood aggression and adult criminality.

[40]         In Dow, Lambert J.A., also observed at para. 25, that:

[T]he very essence of a pattern that there be a number of significant relevant similarities between each example of the pattern that is being considered, but that, at the same time, there may be differences between each example, some of them quite distinctive, so long as the differences leave the key significant relevant elements of the pattern in place. That is, after all, what is meant by a pattern.

[41]         Similarly, in R. v. P.M.C., [1998] B.C.J.No. 3225, at para. 20, Wilson, J., in delivering the judgment of the British Columbia Supreme Court stated:

[F]or the Crown to prove that there is a "pattern of repetitive behaviour", there must be: firstly, repetition (although not necessarily more than two incidents); and secondly, some similarity between the incidents, so that it can be said that they form a pattern. I do not find that the Crown need prove an identity of the elements of the incidents, or that they show a particular psychological profile or trait of the offender such as pedophilia. The incidents can be serious or not, and involve violence or not, but they must go beyond merely a series of criminal offences, so that the court can identify some commonality or arrangement or order between them.

[42]         In Neave, the Court, at para. 123, described the three areas of evidence will generally be considered in determining whether there is a pattern of conduct falling within the threshold requirements under. Section 753, as:

1.      the offender’s past criminal acts and criminal record;

2.      extrinsic evidence relevant to those pas acts and the circumstances surrounding them; and

3.      psychiatric reports opining as to that conduct.

[43]         In R. v. Bunn, 2012 SKQB 397, a decision of the Saskatchewan Court of Queen’s Bench, the Court considered the meaning of substantial degree of indifference and concluded at para 19:

In defining substantial degree of indifference, the British Columbia Court of Appeal in R. v. George 1998 CanLII 5691 (BC CA), (1998), 126 C.C.C. (3d) 384, [1998] B.C.J. No. 1505 (QL) (B.C.C.A.) at 394-95, established that the court cannot only look at the offender’s actions at the time of the offence but other offences as well in determining “substantial degree of indifference”. If the offender has a conscious but uncaring awareness of causing harm to others and this has occurred over a period of long duration involving frequent acts and with significant consequences, this is sufficient to establish a substantial degree of indifference.

Section 753(1)(a)(iii) - Offence of a Brutal Nature

[44]         The Crown must prove beyond a reasonable doubt:

(i) the offender has been convicted of a serious personal injury offence under s. 752(a);

(ii) the offender is a threat to the life, safety or physical or mental well-being of other persons based on evidence;

(a) the behaviour associated with the predicate offence is of a brutal nature; and

(b) the offender's future behaviour is unlikely to be inhibited by normal standards of behavioural restraint.

[45]         This provision does not require the presence of a pattern of behavior. It is the brutality of the conduct that is relevant. A situation of stark horror is not required in order to find brutality. Conduct which is coarse, savage and cruel and which is capable of inflicting severe psychological harm on the victim is sufficiently brutal to meet the test in this test. (R. v. Langevin (1984), 11 C.C.C. (3d) 336 (Ont. C.A.); R. v. Schrubsall, 2001 NSSC 197, at para. 35)

Section 753(1)(b) - Failure to Control Sexual Impulses

[46]         The Crown must prove beyond a reasonable doubt:

(i) the offender has been convicted of a serious personal injury offence under s. 752(a);

(ii) the offender's past conduct in any sexual matter, including the predicate offence, has shown a failure to control his or her sexual impulses; and

(iii) a likelihood of causing, injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.

[47]         The Supreme Court of Canada in R. v. Currie (1997), 115 C.C.C. (3d) 205, at para.17, held that the prospective dangerousness of the offender in s. 753 (b) is measured by reference to his or her conduct in any sexual manner, including that involved in the predicate offence. There need not be a focus upon the objective seriousness of the predicate offence to determine the application. Any sexual matter may, but need not refer to the predicate offence. Provided that the offender’s past conduct in any sexual matter demonstrates a present likelihood of inflicting future harm upon others, the designation dangerous offender is justified.

[48]         In Schrubsall, 2001 NSSC 197, at para. 35, Cacchione, J. observed:

The wording of s. 753(1)(b) also does not contain a reference to a "pattern of behaviour". Under this section the Crown must establish that the offender has been convicted of a "serious personal injury offence" and that there is a likelihood of harm to others through future failure to control sexual impulses. The Crown is not required to prove beyond a reasonable doubt that certain events will happen in the future. It is the quality and strength of the evidence of past and present facts together with the expert opinion thereon, which forms an existing basis for a finding of present likelihood of future conduct; R. v. Knight (1975), 27 C.C.C. (2d) 343 at 356.

[49]         The relevance of psychiatric evidence was considered in R. v. Sullivan, [1987] O.J. No. 2162, at paras. 34-35, where Martin J.A., in delivering the majority judgment of the Ontario Court of Appeal, held that psychiatric evidence is relevant to the issue of whether the offender by his or her conduct in sexual matters, including that involved in commission of the predicate offence, “has shown a failure to control his or her sexual impulses”. He wrote:

[i]n my view, the psychiatric evidence is of particular relevance to this issue. The psychiatric evidence indicates that the appellant suffers from an ongoing personality disorder, that he has low impulse controls, and that his conscience is defective in regulating his sexual behaviour. In my opinion, the trial judge was entitled to rely on the psychiatric evidence against the background of the appellant's sexual offences on this issue. It warranted her conclusion that the appellant in the future is likely to similarly fail to control his sexual impulses.

The psychiatric evidence was also highly relevant to the third issue, namely, whether there is a likelihood of the appellant causing injury, pain or other evil to other persons through failure in the future to control his sexual impulses. In other words, the evidence is highly relevant to whether the appellant, because of his personality disorder, represents a continuing danger.

[50]         In R. v. Oliver (1997), 114 C.C.C. (3d) 50, at pars. 9-10, Hunt J.A., in delivering the majority of the Alberta Court of Appeal, held that test is not whether the offender can control his or her sexual impulses, but whether he or she has failed to do so.

Evidence of Character and Repute

[51]         Section 757 of the Criminal Code, permits the Court to grant leave to the Crown to lead evidence of an accused’s character and reputation at a dangerous offender application. However, its use is limited. Character evidence cannot be used to create a pattern, although it may explain why something is reflective of a pattern. (Neave, at para. 127)

The Applicability of the Sentencing Provisions

[52]         The Supreme Court of Canada has confirmed that the dangerous offender provisions form part of the sentencing process. As such, their interpretation must be guided by the fundamental purpose and principles of sentencing contained in ss. 718 to 718. (Jones; L.(T.P.); Johnson).

General Principles

[53]         There are well-established principles regarding dangerous offender applications that must be considered, including the following:

a)     The overriding aim of dangerous offender legislation is not punishment, but the prevention of future violence (R. v. Schwartz, 2000 BCSC 40);

b)    The onus of proof is upon the Crown and the standard of proof is beyond a reasonable doubt (Schwartz);

c)     The Crown need not prove beyond a reasonable doubt the offender will re-offend, only that there is a likelihood that he will inflict harm (Schwartz);

d)    The determination of whether the accused is a dangerous offender is based upon his past conduct and not his future prospect for treatment or rehabilitation (Schwartz; R. v. Carleton (1981), 69 C.C.C. (2d), affirmed, [1983] 2 S.C.R. 58);

e)     The Crown has no obligation to refute treatability. Where the accused declines treatment or any rehabilitative help, any debate about onus becomes remote (R. v. Nepoose, 1997 ABCA 260, at para. 16);

f)     The strict rules which govern a trial do not apply at a sentencing hearing and it would be undesirable to have the formalities and technicalities characteristic of the normal adversarial proceedings prevail. The hearsay rule does not govern the sentencing hearing. Hearsay evidence may be accepted where found to be credible and trustworthy. The judge traditionally has had wide latitude as to the sources and types of evidence upon which to base his sentence. He must have the fullest possible information concerning the background of the accused if he is to fit the sentence to the offender rather than to the crime (R. v. Gardiner, [1982] 2 S.C.R. 368; Jones);

g)     The touchstone for sentencing procedure is flexibility with diminished procedural impediments to the acquisition of the fullest possible information regarding the offender (R. v. Campbell, [2003] O.J. No. 4085, at para. 29 (Ont. S.C.J.) );

h)     Dangerous offender proceedings do not constitute a new trial but rather a sentencing phase of a trial. The balancing of Charter values in this context results in societal values for protection outweighing individual rights against self-incrimination ( R. v. Brown, [1999] B.C.J. No. 3040, at para. 20 (B.S.S.C.) );

i)       The confession rule has been designed for proceedings where, broadly speaking, the guilt or innocence of a person is the matter in issue. The rule has not been established for proceedings related to the determination of sentence (Jones); and

j)       The offender cannot be punished for not fully participating in the assessment nor can the court make an adverse inference with respect to his or her refusal to participate. At a dangerous offender application, it is the Crown and not the defence who has put the accused’s mental state in issue (Brown, at para. 34).

Evidentiary Issues

[54]         It is clear from a review of the Criminal Code and the case law that the rules of evidence are less strict at dangerous offender proceedings. This ensures the court receives the widest possible range of information. The flexibility in the rules applies to both the types of evidence to .be introduced and the method of proving the various allegations. For example, the Court may permit the Crown to lead evidence of reputation (s. 757) and to rely on hearsay (s. 723(5)) and documentary evidence.

[55]         However, even though the Crown may call different types of evidence and rely on different methods of proof, the burden remains unchanged. Any disputed allegation of criminal conduct or aggravating fact must be proved beyond a reasonable doubt.

[56]         There are numerous examples in the case law where the Crown led evidence of other conduct for which the accused had not been convicted. It appears that so long as the offender has not been acquitted, the Crown may call evidence of other criminal conduct provided it is relevant to the elements under the dangerous offender definitions. (R. v B.(J.H.) (1995), 101 C.C.C. (3d) 1 (N.S.C.A.)).

[57]         Section 757 of the Criminal Code specifically provides for the admission of character evidence.

Documentary Evidence

[58]         Documents introduced for the truth of their contents would typically be inadmissible in the absence of an exception to the hearsay rule. Section 723(5) permits the introduction of hearsay evidence at a sentencing. In Shrubsall, Cacchione J. noted at para 20:

Hearsay evidence is admissible in dangerous offender applications. The Supreme Court of Canada in R. v. Gardiner (1982) 68 C.C.C. (2d) 27 (S.C.C.), at 513-514 held that the judge at a sentencing hearing should not be denied an opportunity to obtain relevant information by the imposition of all the restrictive evidential rules common to a trial. Hearsay evidence may be accepted where found to be credible and trustworthy.

[59]         In R. v. Gregoire (1998), 130 C.C.C. (3d) 65, (Man. C.A.), the Crown proffered extensive documents compiled by the National Parole Board and Corrections Canada at a dangerous offender proceeding. The documents covered the time period, during which the offender was incarcerated at para. 53, the Court made the following observations:

The extensive documents admitted in evidence through them were compiled as part of their regular duties and responsibilities within the correctional system. They were prepared for the purpose of recording the progress and problems experienced by the various inmates and include, in some instances, the opinions and recommendations of the authors. Their sources include the accused, other inmates, and other staff members. They are replete with hearsay statements about the accused based on the observations of others within the corrections system.

[60]         In reaching the conclusion that the documents were admissible the Court held at para. 62:

In our opinion, the documentary information in question was admissible in evidence not only pursuant to the provisions of s. 30(1) of the Canada Evidence Act, as concluded in R. v. Martin and many other cases, but at common law by virtue of the Supreme Court decision in Ares v. Venner earlier referred to and the extensive body of jurisprudence that has since followed and applied it. …

This has now developed into a well-recognized exception to the hearsay rule and is applicable to the facts of this case. All of the authors of the documentary evidence had extensive personal knowledge of the accused because it was part of their job to acquire such information. It was also part of their job to make reports about the accused's activities and progress within the prison system that became part of the official record for the purposes of parole and prison discipline. They are clearly admissible as an exception to the hearsay rule.

[61]         Similarly, in R. v. Trevor, 2003 BCSC 1154, at para. 12 the Court noted:

Much of the evidence adduced at this hearing was contained in numerous documents comprising witness statements, reports to Crown counsel, pre-sentence reports and the contents of the files of corrections and probation officers. Defence counsel admitted the authenticity of these documents and agreed that they could be admitted for the proof of their contents, subject to the court giving them the appropriate weight. The Crown relied on this documentary evidence with regard to Mr. Trevor’s background, the circumstances of other convictions and Mr. Trevor’s response to supervision on prior occasions.

[62]         While documentary evidence is clearly admissible at a dangerous offender hearing, the court must assess the reliability and determine the appropriate weight to be placed on such evidence. In Campbell, Hill J., at para. 31, wrote:

This said, concerns about evidentiary reliability are not merely abandoned in a sentencing hearing. The court remains vigilant to act upon reliable evidence. As well, as observed in the Gardiner case at page 514, "the obtaining and weighing of such evidence should be fair". A sentencing court is empowered, at common law, to exclude unreliable evidence, evidence not properly considered creditworthy, and to exclude "evidence obtained in circumstances such that it would result in unfairness if the evidence was admitted at trial": R. v. Buhay (2003), 174 C.C.C. (3d) 97 (S.C.C.), at 115-6.

Psychiatric Evidence

[63]         While expert evidence is admissible in this hearing, it cannot be over stated that it is for the Court to determine the relevant aspects of the pattern. Put differently, it is the Court and not the experts which must decide if a pattern has been established. The experts can interpret the past conduct and give opinions on the likely future conduct of the offender based on his or her past behaviour. The expert opinions are also of assistance as they relate to whether the offender suffers from a psychological disorder and the prospects for treatment. (Shurbsall)

[64]         Experts obviously play a critical role in dangerous offender applications. The case law establishes that the court can rely on psychiatric opinion evidence to reach the conclusion that certain conduct amounts to a pattern of behaviour or that the offender will not control their sexual impulses in the future. (B.(J.H.)).

[65]         It should be stressed, however, it is ultimately for the Court and not the expert to make determinations of fact and draw conclusions about patterns of behaviour or future conduct.

[66]         In Neve, the Alberta Court of Appeal, considered the importance of exercising circumspection in assessing and evaluating psychiatric evidence. The Court of Appeal suggested, at para. 189, that the following be considered:

1. The qualifications and practice of the psychiatrist;

2. The opportunity the psychiatrist had to assess the person, including: length of personal contact, place of contact, role with ongoing treatment, and involvement with the institution in which the person is a patient or prisoner;

3. The unique features of the Doctor-Patient relationship, such as hostility or fear by the patient (or psychiatrist) arising from the personalities, circumstances of contact, and the role of the psychiatrist;

4. Specifically and precisely what documents the psychiatrist had available and reviewed, for example, from earlier Court proceedings, institutional records, other medical consultations or treatment;

5. The nature and scope of consultations (this could include: personal contact with third parties, information from other health care professionals, prison authorities, police, lawyers, family);

6. Specifically and precisely what the psychiatrist relies on in coming to an opinion;

7. The strength and weaknesses of the information and material that is relied on.

[67]         Later in the judgment, at para. 189, the Court emphasized the following instructive points:

1. At all times the responsibility remains with the sentencing judge to assess and weigh the opinion evidence to determine whether the behavioural thresholds have been met and whether based on the past behaviour someone is a threat and if so should be designated a dangerous offender. The experts do not become the judges and the expert opinion is not the judgement;

2. It is the sentencing judge, not the psychiatrist, or the Crown, or the defence, who decides what the key elements of the pattern are;

3. In assessing the existence of a pattern, psychiatric opinion evidence, admissible under s. 755, must be used cautiously. Clearly psychiatrists can opine on the interpretation of what is alleged to constitute a pattern of conduct, or whether that pattern of conduct is pathologically or substantially intractable and of course on the issue of future dangerousness, but quite apart from any other use of psychiatric evidence in dangerous offender hearings, while the psychiatrist may review past criminal conduct and then give an opinion on whether it forms a pattern, it is, in the final analysis, the Courts responsibility and not the psychiatrists to make the determination whether the evidence establishes the proscribed patterns (see paragraph 199).

[68]         It is with these instructive comments that I approach the expert opinion evidence in this case.

The Predicate Offences

[69]         The predicate offences arise from the same circumstances. The circumstances surrounding theses offences are described in Exhibit 13, which states:

On May 15, 2009, the victim, A.M.C., picked up the offender, James Martin, at Downtown Pizza located on Wyse Road in Dartmouth. A.M.C. and Mr. Martin had been friends for about six months and went back to her apartment on Albro Lake Road, Dartmouth.

After sitting and talking on the couch, A.M.C. and Mr. Martin went for to bed for a nap. At approximately 7:30 pm while A.M.C. was sitting on the couch, Mr. Martin began to ask her how she felt about him, but she would not answer him. Mr. Martin approached her, swung her legs around and then straddled her, while she was lying on her back.  A.M.C. could not move. A.M.C. told the accused, “This isn’t funny anymore” and he responded, “I don’t care if it is funny, I want you to answer my questions”. Mr. Martin picked A.M.C. up and carried her to her bedroom where he placed her on the bed and straddled over top of her and kept asking her how she felt about him and not to be playing games.

The victim was squirming, she was trying out get out from under Mr. Martin and they both ended up lying on their sides with Mr. Martin in back with his arm wrapped around the victim’s neck.  Mr. Martin told the victim that if she screamed he was going to break her jaw. The victim managed to get turned onto her stomach and screamed hoping that someone would hear her. Mr. Martin rolled her back over, placed one hand over her mouth and used his other hand to choke her. While choking the victim Mr. Martin told her that if she screamed again he was going to kill her. Mr. Martin then lifted up her shirt and begun kissing her stomach. The victim asked to go have a cigarette and use the bathroom and Mr. Martin let her up as he stated, “I think I should go, I shouldn’t be here”.

A.M.C. walked into the living room and saw that she had an opportunity to escape out the back door as Mr. Martin was in the kitchen out of sight. When A.M.C. unlocked the door Mr. Martin heard and came running into the living room and began chasing A.M.C. down the back stairwell. A.M.C. was screaming hoping that someone would hear her and call the police until she was able to bang on the door of apartment #3. As she reached the door Mr. Martin caught up to her and she fell to the floor covering her face in case he hit her. Mr. Martin grabbed the victim by the hair and smashed her head off the wall before running back upstairs to her apartment.

After returning to A.M.C.’s apartment Mr. Martin stole her car keys and then stole her 2003 Ford Focus.

When police attended to speak with A.M.C. she was visibly upset and had big clumps of her hair falling out from where the accused had grabbed her.  A.M.C. provided a written statement to police and wished to proceed with charges against Mr. Martin. A.M.C. informed police that her and Mr. Martin were only friends and were never involved intimately.

Family Background

[70]         Dr. Nielson has succinctly set out Mr. Martin’s personal background in her assessment report, Exhibit 16. She reported:

James Joseph Martin is the only child born to the common law union of Brigitte Martin (flee Robichaud) and Placide Macintyre. He was born in Rexton N.B. and spent his formative years in the communities of Richibucto and Baie Sainte Anne.

Brigitte Martin had been married previously to Maxim Martin with whom she had 12 children. When they parted, only two older sons from her previous relationship remained in her care and were reared with Mr. Martin. When James Martin was a youngster, Brigitte Martin worked outside the family home assisting her common law husband with fishing until James Martin went to school, and thereafter Brigitte Martin stayed at home. She died in 1995, aged 72, of complications related to kidney disease.

Placide Maclntyre worked as a commercial fisherman. He too had been married previously and had 9 children from his previous union but did not have custody of any of the children when he and Mrs. Martin united. He was reported to have had a history of alcohol abuse prior to Mr. Martin’s birth and to have been short-tempered, unhappy, and physically and verbally abusive towards James Martin throughout his childhood and adolescence. James Martin described him as a “dry drunk”, and someone with whom he had little emotional attachment. No criminal history was reported. He was reported to have demonstrated physical aggression towards Brigitte Martin on one occasion that was observed by James Martin. Placide Martin died in 1989, aged 77 of kidney failure.

Mr. Martin reported that from an early age (3 or 4) he was subject to “a lot of abuse” at the hands of his father “for no reason” who “locked me in a shed for days at a time” and “beat the crap out of me” and “belted” [him]. He reported that his father was emotionally distant but materially indulgent, frequently purchasing him large gifts in order to appease his guilt about his poor parenting (in James Martin’s opinion). In contrast, Mr. Martin described his relationship with his mother in warm, nurturing, supportive terms. Mr. Martin said he was not witness to regular domestic violence, but reported that his parents did not have a close relationship and ‘bickered’ a lot.

Mr. Martin reported that he knew ‘most” of his half siblings on his mother’s side when growing up but was never particularly close to any of them. He reported that he was not particularly well bonded to the two half-brothers with whom he was raised due to the large age gap (7 and 10 years older). He also reported that he perceived himself as an ‘outsider’, despite being the biological child to his parents, and thought that his half-brothers were treated preferentially by his father, even though they were not his biological children.

Of his half siblings, Mr. Martin thought that two of his brothers have served periods of incarceration, and two have substance abuse difficulties. Mr. Martin reported that the remainder lead relatively stable and pro-social lives. Mr. Martin currently has no contact with any of his siblings, although reported that he was in contact via the internet with a half-sister, Bernice, early during this last period of release, but not since.

Mr. Martin has 5 biological children by 5 different mothers with whom he has no contact and who he does not support financially (the mothers or children). This is detailed later in the report under ‘Sexual and Relationship History’.

Growing up, Mr. Martin reported that his family initially lived in a cramped 2 bedroom home in Richibucto, N.B until age 9. Mostly, his childhood experiences were described in negative terms. He recounted incidents of sexual abuse by a female babysitter around age 4 and a male neighbour around age 6 (detailed later in the report under ‘Sexual and Relationship History’). He reported frequent corporal punishments by his father (being “beaten”) which were, in his view, arbitrary and disproportionate (e.g. teasing brother; reporting bullying; saying “anything that got on his [father’s] nerves, I got beaten”). Mr. Martin says that he was “hyper” all the time and overactive compared to other children and described himself as “wild”. He reported difficulty making friends, and that his best friend was a local girl. He reported being caught for shoplifting (toy cars) at age 6 while in the company of other children.

Around age 9 he reported that the family moved to Baie Sainte Anne, N.B. in order to be closer to his father’s fishing port. In this locality they lived in a much larger home and lived a more comfortable existence. However, Mr. Martin reported problems integrating into this community, and attributes many of his subsequent problems in life to this change in his social environment. These years were characterized by significant problems in the community, at school and within the family home.

In the community, Mr. Martin reported that he was bullied by the local children due to his lack of English fluency. He said that when he reported this to his father he received little support, instead saying that he would “get beaten again”. Mr. Martin admitted that he was involved in physical fights with the children who bullied him, but denied ever instigating fights for any reason. In addition to this, he reported community misbehaviour prior to age 12 (e.g. “ran through a neighbour’s yard and killed some chickens”, and that he threw rocks at a girl’s glasses and broke them).

In school Mr. Martin also experienced behavioural difficulties (detailed below under Educational History) which included suspensions for physical aggression against a teacher and a student.

In the family home, Mr. Martin reported parental supervision was minimal and that he was often left in the charge of himself or his older brothers while his parents played Bingo in the evenings. Mr. Martin described manipulative behaviour at a young age, for example he reported that he threatened to steal a car if his mother did not stay home from Bingo one evening. Mr. Martin reported that he carried the threat out. Other behavioural problems at home included running away from home for about a week, ‘borrowing’ money from his mother’s purse without first asking, and sexual interference with a 9 year old female mentally challenged relative when he was age 12 or 14. He also reported frequent sexual experimentation with a same aged female peer starting at age 6 progressing to full penetrative sex with her by age 12. He reported sexual abuse by one of his brothers at age 13 (detailed below under Sexual and Relationship History).

Overall, Mr. Martin’s recollection of the years between age 9-12 is that he “basically got beat up a lot” by local children and his father, and that he spent a lot of time on his father’s fishing boat when not in school.

Mr. Martin says that he was sent to a foster home around age 12 or 13, and reports that when I went to that foster home, that was the best time in my life”. He noted that his first placement lasted a month, but he was unable to clearly state the reason, musing that it could have been an emergency placement, or perhaps related to his having slept with a 12 year old female co-resident while at that placement.

His second foster placement (in Trachadie N.B.) was with a family who had several other foster children. This placement lasted 6 months and was also described in positive terms relative to his life with his family of origin. Furthermore, he reported that his biological father bought him a snowmobile while he was in that foster placement which made it all the more attractive for him.

Upon his return home, Mr. Martin said that the material indulgences continued (e.g. he was given an ATV three-wheeler) but so did the ‘beatings”. Consequently James Martin indicated that he began to engage in thefts with the specific aim to return to foster care, However, after a car theft around age 13 or 14, he reported that he was instead sent to Kingsclear Youth Training Centre.

Mr. Martin reported that he was sexually abused during his time at Kingsclear by Karl Toft. Mr. Martin said that he was sent to Kingsclear “a few times” during adolescence, for “a bunch of thefts” mostly “stealing skidoos and cars”. He reported that he escaped youth custody twice, once near the beginning and once near the end of his tenure there. Mr. Martin said that while he completed some education during his time at Kingsclear, predominantly his recollection of the experience was of sexual abuse, and learning from antisocial associates. Later in life (1996) Mr. Martin reportedly received a financial settlement in compensation, adding that he was not permitted to divulge the settlement amount or terms of the Agreement. He reported that he spent the entirely of this sum in 3.5 years on clothing, rent, cars, cigarettes and drugs.

Mr. Martin attracted his first adult convictions in July and August 1983, age 16/17 (Theft over $200, Possession of a Weapon; and Theft over $200 and BE/Commit). Shortly thereafter he committed his first violent offence as an adult at age 17 (January 1984; Robbery with violence) for which he received a 30 month sentence, served at Springhill Institution.

Since then, Mr. Martin has spent significant portions of his adult life incarcerated for various violent, non-violent, and sexually violent offences (outlined in Appendix B entitled “Criminal History”).  With the exception of his last release to the Halifax area, he has otherwise lived predominantly in the area in which he was raised (Richebucto/Baie Sainte Anne and environs).

Mr. Martin’s last incarceration was in April 14, 2000 at which time he received a 6 year 6 month sentence for Sexual Assault CBH, Forcible Confinement and Uttering Threats. He served this at Dorchester Institution. At the time of sentencing Mr. Martin agreed to a 10 year long-term supervision order. Mr. Martin was detained until his Warrant Expiry Date (Oct 2006) by the National Parole Board. This decision was based on Mr. Martin’s history of violent and sexually motivated crimes, the NPB’s belief that Mr. Martin remained a high-risk for violent recidivism, and the belief that Mr. Martin had made insufficient progress in the High Intensity Sex Offender Programming to enable this risk to be adequately controlled in the community. Subsequent to being denied statutory release, Mr. Martin completed a High Intensity Family Violence Prevention program in which he made some gains, but several areas were noted to require further improvement. It should also be noted that Correctional Services of Canada canvassed many Community Correctional Centers across the country seeking placement (all refused) before he was eventually accepted to the Carleton Centre in Halifax in October 2006.

Mr. Martin’s education, vocational, sexual and relationship history and other relevant historical detail, as well as his adjustment during his community release is outlined in the sections that follow.

[71]         Dr. Neilson further commented that:

The file information regarding Mr. Martin’s background history is roughly consonant with that recorded above, with some inconsistencies/deficiencies noted (for example the number of half siblings reported has varied in the file from 20-40; file information was unclear as to the reason Ms. Martin’s other children did not remain in her care with some file information suggesting that they some were scattered throughout New Brunswick in foster homes, and some old enough to care for themselves). Objective information regarding Mr. Martin’s early childhood and school performance was not abundant. However, the file was generally consonant throughout in noting that Mr. Martin was an unruly “quick-tempered” youngster whose parents did not adequately enforce parental boundaries, did not encourage self control strategies, and who were materially indulgent but emotionally negligent. The file notes that his father was physically abusive. His parents were noted to collude with their son in his evasion of responsibility and tended to displace blame for his antisocial behaviour onto others.

[72]         She summarized her review by stating that:

Mr. Martin appears to have had a family life that despite apparent geographic and economic stability, was otherwise characterized by several domains of family dysfunction known to be associated with later violent behaviour including: poor family cohesion (large family size, lack of familial bonding); adverse child-rearing practices (inadequate or ineffective parental supervision; overly harsh/inconsistently enforced/absent discipline; inappropriate material rewards); and family relationship problems (poor relationship with father; poor parental marital relationship/witness to family violence, history of paternal alcohol abuse). From an early age Mr. Martin had significant behavioural problems at home, school and in the community prior to age 12, and did not live with both biological parents until age 16, with foster and institutional placements in his teens.

Previous Criminal Convictions

[73]         It should be noted that the following summary (chart) of Mr. Martin’s previous convictions which was submitted to the Court by the Crown in its Notice of Dangerous Offender Application, excludes Mr. Martin’s charge of indecent assault, which occurred on November 25, 1979, when he was 13 years of age. An official copy of the charge is contained in Exhibit 14, at p. 253 and referenced at p. 190. Exhibit 14 is a compilation of documents regarding Mr. Martin’s youth criminal history and background. At p. 253, the charge states that Mr. Martin committed “a delinquency, in that he did indecently assault a female person, contrary to and in violation of section 149(1) of the Criminal Code of Canada.”

[74]         Mr. Martin discussed this offence with Dr. Neilson during one of her interviews with him. She reported, at p. 4 of her assessment report, Exhibit 16, that Mr. Martin disclosed that he committed a sexual interference offence with a 9 year old female mentally challenged relative when he was age 12 or 14.  She also mentioned at p. 24 of the report that Mr. Martin reported to her that he was 12 or 13 years of age, and was accused of sexually assaulting a 9 year old girl, who he named. He told Dr. Neilson that the girl was his half-sister’s daughter. Mr. Martin also told Dr. Neilson that he did not commit the offence, but pleaded guilty to it nevertheless.

[75]         Mr. Martin has a very extensive criminal record, which spans from 1978 to 2010, including the predicate offences. His record consists of the following convictions:

Date	Section #	Description/Action	Sentence/Disposition
October 25, 1978 (Saint John, NB) (Youth)	312(a)	Possession of a stolen vehicle	6 mths probation
January 25, 1980 (Newcastle, NB) (Youth)	306(1)(b) 294(b) x2 295	Break & enter and theft Theft under $200 Theft of an automobile	Indefinite period not to exceed 5 years (Youth Training Centre)
December 19,1980 (Newcastle, NB) (Youth)	306(1)(b) 294(a) 295 245(1)	Break & enter and theft Theft under $200 Theft of an automobile Common assault	One year (Youth Training Centre)
June 29, 1982 (Fredericton) (Youth)	133(1)(b) 133(1)(b) 306(1)(a)	Unlawfully at large Unlawfully at large Break & enter with intent	30 days consecutive 30 days consecutive 30 days concurrent
July 22, 1983 (Newcastle, NB)	294(a)   294(a)   85	Theft over $200   Theft over $200   Possession of a weapon	Suspended sentence for 18 mths & $200 restitution 3 mths 3 mths consecutive & 18 mths probation 5 year weapons prohibition
August 10, 1983 (Richibucto, NB)	294(a) 306(1)(b)	Theft over $200 Break and enter & commit	30 days on each consecutive and consecutive to sentence serving
January 25, 1984 (Newcastle, NB)	302(b)	Robbery with violence	30 mths
May 21, 1985 (Moncton, NB)	133(1)(a)	Escape lawful custody	2 mths consecutive to sentence serving
April 23, 1986 (Newcastle, NB)	87(4)(a) x3	Mischief	9 months on each concurrent
May 14, 1986 (Newcastle, NB)	387	Mischief	15 days conc. with sentence serving
May 10, 1988 (Richibucto, NB)	306(1)(b) x 5   295   294(b)	Break & enter & commit Takes motor vehicle without consent Theft under $1000	6 months on each chg. concurrent   1month conc. & conc.   1 month conc. & conc.
October 10, 1989 (Richibucto, NB)	430(4)(b) 335 x 2	Mischief Take automobile without consent	2 mths 1 mth on each conc. but consec.
October 16, 1989 (Newcastle, NB)	348(1)(b)	Break and enter & commit	1 year
January 25, 1990 (Newcastle, NB)	266	Assault	60 days
March 23, 1990 (Richibucto, NB)	267(1)(b)   266 145(3)	Assault causing bodily harm Assault Failure to comply with recognizance	4 mths   30 days 15 days consecutive
October 31, 1990 (Moncton, NB)	334(b)(ii) x2	Theft under $1000	5 days on each consecutive.
November 6, 1992 (Newcastle, NB)	348(1)(b) 349(1)   3(1) NCA	B E & Theft Unlawfully in dwelling house possession of a narcotic	2 years 6 mths concurrent   $115 fine
November 9, 1995 (Miramichi, NB)	279(2) 268(1) 245(a)   271(1) 266(a) x3 264.1(1)(2) 279(a) 266(a) x2 264.1(1)(a) 145(3)(a)	Forcible confinement Aggravated assault Administering a noxious thing Sexual assault Assault Uttering threats Kidnapping Assault Uttering threats Failure to comply with a recognizance	2 years concurrent 2 years concurrent 2 years concurrent   18 mths consecutive 2 years conc. & conc. 2 years conc. & conc. 18 mths conc. & conc. 18 mths each conc. & conc. 18 mths. conc. & conc. 1 mth consecutive .
January 23, 1996 (Miramichi, NB)	3(2)(b) NCA	Possession of a narcotic	30 days consecutive to sentence serving
April 14, 2000 (Moncton, NB)	272(c)   279(2) 264.1(2)	Sexual assault causing bodily harm Forcible confinement Uttering threats	6 years and 6 mths (time served 6 mths) 3 years concurrent 2 years concurrent Found to be a long-term offender per 753.1(3) & given long term supervision order for 10 years
Plead guilty on May 21, 2010 (Dartmouth, NS)	246(a)   266 271(1)(a) 334(b) 753.3(1)	Attempt to choke or suffocate Assault Sexual assault Theft under $5000 Failure to reveal intimate relationship to CSC super.	D.O. Application Pending

 

Circumstances of Specific Violent Offences

[76]         Mr. Martin’s criminal history includes numerous violent offences. For the purposes of this hearing, only a brief summary of some of those violent offences contained in the criminal record will be addressed.

Offence: Robbery: Sentence date January 25, 1984

[77]         On November 22, 1983, Mr. Martin, age 17, went to visit an acquaintance, W.M. a 74 year old, at his home.  Mr. Martin was invited to stay for a drink.  W.M. went to the bedroom to turn up the thermostat. Mr. Martin followed him into the bedroom, wherein he instructed W.M. to get on the bed. Mr. Martin then tied up W.M..  Following that he stole W.M.’s wallet and car keys.  He took the car, which was later returned and stole 10 dollars from the wallet.  W.M. spent the night tied up on the bed, with no heat in the bedroom. 

Offence: Mischief: Sentence date April 23, 1986

[78]         On April 23, 1986, during a family dispute, Mr. Martin, age 19, grabbed an axe and began to destroy furniture and the walls of his father’s residence.  He then pursued family members outside of the home, and chased them down the road. He also damaged two other residences with the axe. The total amount of damage to the homes is unknown.

Offence: Assault: Sentence date January 25, 1990

[79]         In late June 1989, James Martin, age 23, and his wife, H.M. were in Baie Ste Anne visiting with friends and family.  Mr. Martin was drinking at the time.  As they were watching a sex video, with some friends, Mr. Martin began to insult H.M.. He was degrading her by talking about their sexual relationship.  H.M. became humiliated and wanted to leave.  As they were leaving Mr. Martin pushed H.M. and H.M. fell down.  He then kicked her in the ribs and slapped her face. 

Offence: Assault & Assault Causing: March 23, 1990

[80]         On September 2, 1989, Mr. Martin’s wife escaped from the residence of Bernard Cheverie, where she had been staying with Mr. Martin.  H.M. told the police that Mr. Martin had been beating and slapping her around since the morning of September 1, 1989.  H.M. alleged that she had been hit and pushed down approximately 10 to 15 times over that time, until she finally managed to escape through the bedroom window and called for help.  

[81]         On May 28, 1989, Mr. Martin, age 22, and his wife, H.M., were at their residence, and they were arguing.  Mr. Martin told H.M. that he was going to make her life a living hell. He went into the kitchen retrieved a pair of scissors. He then began cutting off pieces of H.M.’s hair. She was unable to stop him.   Mr. Martin then ordered her to stay in bed. He then got up and returned to the bedroom with rope and a handkerchief. He then proceeded to bind her hands and feet with the rope and he gagged her with the handkerchief.  Mr. Martin told H.M. that what he had done to her was not good enough for her.  He stated that he wanted to cover her in honey and tie her to a tree so the coyotes could get her.  After that Mr. Martin abruptly stopped, he said that he was kidding, and he untied her.   H.M. ran to the kitchen and took possession of a knife. They struggled.  During the struggle Mr. Martin kneed H.M. in the ribs, knocking her down to the floor, which caused her to endure a lot of pain.  Mr. Martin laughed and said, “that should teach you not to fight back”. H.M. eventually attended the hospital, where she was diagnosed as having bruised ribs. 

Offence: Break & Enter Unlawfully in a Dwelling:  Sentence date November 6, 1992

[82]         On September 20, 1992, police received a report that Mr. Martin, age 26, had broken into the residence of a neighbor, G.R..  While G.R. slept, Mr. Martin stole money, personal effects and jewellery. When the police apprehended Mr. Martin, they also found a gram of hashish on his person.  

[83]         The previous evening, around 11:15 pm, Mr. Martin attended the residence of R.L..  Mr. Martin had entered the residence by going through the front door.  She was asleep on the couch but awoke to find Mr. Martin standing next to her.  He kissed her. She then pushed him away and ordered him to leave.  Mr. Martin left the residence. A few minutes later, R.L. heard noises coming from the basement and, without warning, the lights and the television were shut off.   She heard someone coming up the stairs.  R.L. was on the couch and she was scared.  Mr. Martin went to the couch, and he tried to unfasten her pants, but her knees and hands were covering her private parts. R.L. pushed Mr. Martin away and went into the kitchen.  Mr. Martin followed her and shut off the lights in that room, as well.  He told R.L. that he wanted to be with her.  She told him several times to leave, before he finally did. 

Forceful Confinement, Aggravated Assault, Administering a Noxious Thing, Sexual Assault, Assault, Uttering Threats, Kidnapping:  Sentencing date:  November 9, 1995: 

[84]         For a period of two weeks in August 1995, Mr. Martin, age 29, unlawfully confined Ms. M.  in the residence where they had been residing.  Between August 4 and 12, while the victim, Ms. M., was taking a shower, Mr. Martin came from behind and hit her three times with his fist to the back of her head.  Between August 19 and 25, 1995, after Ms. M.  spoke to her family the accused hit her three times on the right eye with his open hand.  On August 13, 1995, Mr. Martin hit Ms. M.  on the mouth with his fist, cutting her inside lip.  On August 23, 1995, Mr. Martin burned Ms. M.  on her left arm with a cigarette.  On August 17, 1995, while they were canoeing to an island near Baie St Anne, Mr. Martin told Ms. M.  to paddle faster or he would drown her.  On August 18, 1995, after canoeing, Mr. Martin locked the camp so Ms. M.  could not get out, and then left in his canoe; leaving her behind.  He heard Ms. M.  screaming and returned to the camp. They then left the camp and returned to their residence in Baie St Anne.  On August 23, 1995 after Ms. M. ’s family left the residence, Mr. Martin made her a coffee and forced her to take 18-20 pills. She consumed the pills and passed out. When she woke the next day, she was sore on both legs.  She asked Mr. Martin what happened, as she could not remember.  Mr. Martin told her that he tried to have sex with her from behind and when he could not he hit her on both legs.  On August 25, 1995, Mr. Martin put a rifle to Ms. M. ’s head and told her that he had no reason to live and if she answered the door to anyone, such as her family or the police, he would shoot the police first, then he would shoot her, and then he would shoot himself.  Ms. M.  tried on many occasions to leave the residence, but was unable to.  At night, Mr. Martin would put a dresser against the door so that she could not leave. He told her that if she left him he would rape her nine-year-old daughter.  After Ms. M’s family had made numerous attempts to speak with her, they contacted the police.  The police entered the house forcefully and found Mr. Martin and Ms. M.  in the bathroom.  Ms. M.  was taken to the hospital where she spent three days in the intensive care unit.  While in custody with respect to this offence, Mr. Martin wrote to Ms. M., attempting to influence her testimony and asking her to speak with M.J.M. about her evidence, as well.

[85]         On August 26th, 1995, Mr. Martin attended his brother’s home in Baie St Comeau.  While in the driveway, he took out his penis, in the presence of 14-year-old M.J.M. and her girlfriend, and urinated on the ATV that was parked in the yard.  After urinating, he turned to M.J.M. and her girlfriend, showed them his penis and asked if they wanted to suck it or if they wanted a piece of it.  He then went inside the residence to get his brother.  While in the living room, he hugged M.J.M.. She asked him to be let her go, but he would not.  She tried to free herself, but he wrestled her to the floor and began putting his hands between her legs.  A short time later, another friend of M.J.M.’s, M.O., entered the residence.  At the time, M. O. was 13 years of age.  At that point, Mr. Martin let go of M.J.M. and everyone exited the residence.  While outside, Mr. Martin grabbed his niece by her arms and forced her into a vehicle, on the passenger side, where she fell on Mr. Martin’s knees.  Mr. Martin closed the door to the car and told the driver to drive away.  Inside the vehicle Mr. Martin fondled her breast and her vaginal area.  She managed to escape and ran back into her house.  Mr. Martin followed her and tried to enter the house.  M.J.M. attempted to exit the house by going out the bathroom window, but Mr. Martin broke down the door and pulled the young girl through the window.  M.J.M. managed to escape again and, this time, she ran across the street, barefoot, to the neighbor’s house, to call the police.  Before leaving the scene, Mr. Martin grabbed M.O. by the throat and threw her against the car.  Mr. Martin told M.O. that he was going to come to her house at midnight and he was going to kill her mother. 

[86]         It should be noted that the allegation of facts relating to the use of kerosene which are contained in the Exhibit material were disputed by Mr. Martin. Having discussed the issue, counsel, Crown and defence, asked the court to ignore the facts; which has been done.  Accordingly, those facts were ignored for the purposes of this hearing.

Unlawful Confinement, Uttering Threats, Sexual Assault Causing Bodily Harm: Sentence: April 14, 2000 

[87]         M.L. testified on June 4th, 2013.

[88]         It is trite to say that most criminal matters involve an assessment of the reliability and credibility of witness’ testimony; this case is no exception.

[89]         There is no magic formula for deciding how much or how little to believe a witness’ testimony or how much to rely on it in deciding an issue. What is required is a careful, thorough and thoughtful examination of all aspects of the evidence called in the case, which includes the viva voce evidence, the admissions, and the exhibits.

[90]         This imposes an important and special obligation upon the court, as it requires a through, painstaking and careful examination of the all the evidence.

[91]         Having carefully listened to and observed M.L. as she testified, I found her to be a credible evidence, who seemingly provided her evidence to the best of her abilities.

[92]         She testified in a straightforward manner and seemed sincere, honest, and forthright in providing her testimony. She was neither argumentative nor evasive in answering questions, and she seemed to have a detailed recollection of the events.  Indeed, she at times impressed me with her detailed recollection of the incidents that occurred in 2000. Her detailed recollection is perhaps a result of the indelible marks that cannot be easily forgotten. Undoubtedly, the consequences of Mr. Martin’s actions have inflicted serious and long-lasting psychological and emotional scarring.

[93]         M.L. provided a clear and concise recollection of her interactions with Mr. Martin during the dates and times in question.

[94]         It should be noted that while I am mindful that M.L. is not a disinterested witness, she was a persuasive witness.

[95]         M.L. testified that in January 2000 Mr. Martin was her brother-in-law.  She described her relationship with Mr. Martin, including how they became friends and when he moved in with her in July 1999. He lived with her until January 2000.  On January 7^th, 2000, after she and Mr. Martin attended a Bryan Adams concert they went home.  Upon arrival at home she became upset because of the dirty dishes in the sink.  She told Mr. Martin that he needed to leave, that she did not want him there anymore.  A scuffle between them ensued in the hallway where Mr. Martin wanted to have sex with her, but she did not want to have sex.  She pushed him away and he got angry.  Mr. Martin grabbed her by the arms and pushed her into the wall which caused her head to hit the wall. After she hit the wall, she could hear Mr. Martin, but for some reason she could not move.  She remembered that Mr. Martin grabbed her arms. She recalled hearing him rip the electrical cord from the alarm clock and then tearing it down the middle.  Mr. Martin then taped her wrist with duct-tape before tying the electrical cord around her wrists, in order not to leave marks.  She stated that when she regained consciousness, she was fully aware of what was going on.  With her arms tied behind her back, she repeatedly asked him what was going on and what he was doing.  Mr. Martin was enraged and screamed at her that he was not going to leave and if he could not have her, nobody else could.  Mr. Martin then turned M.L. over onto her stomach and tried to have anal intercourse with her, but he did not have an erection.  She felt him trying to put his penis into her anus.  She resisted his attempts.  He then flipped her back over and straddled her on top of her thighs.  He grabbed a candle, lit it and told her he was going to show her how kinky he was and that he was going to burn her with wax. She repeatedly asked him to untie her and to stop. She told him that all of this was unnecessary.  She kept telling him that she could not believe what he was doing. She added, she did not recognize him. 

[96]         Mr. Martin attempted to have vaginal sex, but was unsuccessful.  He became frustrated and angry.  He then grabbed the candle, again, and attempted to pour the wax on M.L.’s breasts.  She blew out the candle.  Mr. Martin became very angry and hit her in the forehead with the palm of his hand.  As Mr. Martin was getting up she placed her feet on his chest and pushed him across the room into the dresser. She then tried to escape through the door, but he grabbed her by the hair and pulled her back into the bedroom.  She tried to grab the doorframe to stop him from forcing her into the room.  He then slapped her and flipped her onto the bed.  As she lay in the fetal position, Mr. Martin kneed her in the ribs and punched her twice.  He punched her once on the back of her right ear, which caused M.L. to see a flash of light and he then punched her a second time, which caused a ringing sensation in her ear.  M.L. testified that she did not lose consciousness. 

[97]         M.L. also testified that because she kicked him, she was told that she could no longer be trusted with her feet, so he tied her feet as well. 

[98]         M.L. also stated that she was pregnant at the time. She had taken the pregnancy test the day before in Mr. Martin’s presence.  She further stated that during the assault she had told him that she was pregnant and that she could not believe what he was doing.  She stated he said that, “we’ll take care of that right now” and then punched her once hard in the stomach.  M.L. miscarried five days later.

[99]         Mr. Martin noticed that there was blood on his hands and looked at M.L. and said to her, “you fucking bitch, this better not be my blood”, then looked at her and said “what did you make me do?”  She told him that she did not make him do anything and that this is all his doing and that she did not deserve any of this. 

[100]     M.L. pleaded with Mr. Martin to untie her as he was pacing around the bed telling her that he was going to kill her, by slitting her throat.  He stated that he was going to leave her in a pool of blood for her kids to discover her and for her mother and father to mourn her.  He stated he was going to kill himself afterwards and they would be together forever.  During this, she testified that she continued to plead with him as she was crying.   

[101]     M.L. testified that at this point she began to pray, as she believed that Mr. Martin was going to kill her.  She heard her deceased grandmother telling her that everything was going to be alright.  She then became quite calm. Mr. Martin stopped and looked at her.  He said, “well, you are the calmest dead looking woman I’ve ever seen”.

[102]     She recalled that Mr. Martin was very emotionally abusive and degrading. He ranted and raved about what the judge in Miramichi had said about him. The judge told him that he was a master manipulator and that he should have thrown away the key when he had the chance.  As Mr. Martin was pacing around the bed he mentioned that things had gone too far and they needed to fix it.  He took possession of a needle, thread and a bottle of alcohol and told M.L. that he was going to fix her eye.  M.L. told him that she would rather take her chances with the having a scar. 

[103]     After that Mr. Martin made her take a shower and tried to get her to eat. 

[104]     M.L. estimated that from the first assault in the home to the time they left it was about five to six hours. 

[105]     M.L. testified that after she and Mr. Martin left the home, they travelled to the back wooded area in St. Charles, Saint Ignace towards Richibucto area.  Mr. Martin told her that he was going to go to his cousin’s camp. While in the woods, he warned her that if she tried to run he would catch her and leave her there, beaten, in a pool of blood for the coyotes to eat her, which would leave no trace of her.

[106]     While she was in the woods M.L. testified that Mr. Martin tried to have sex with her.  She stressed that she was not going to say “no”, because she was scared and she did not know what was going to happen to her.  Mr. Martin could not perform; he got frustrated, threw her off of him and punched her in the arm. 

[107]     M.L. called her father while Mr. Martin was standing next to her, and told him something had happened.  She made up a story. 

[108]     M.L. stated that she convinced Mr. Martin to take her to the hospital by telling him that if he cared for her he would take her to the hospital to have her eye, ribs and head examined. 

[109]     He wanted to take her to the Miramichi, but she said that she could not go there because they did not have any files on her.  It was suggested that they go to St. Anne Hospital but Mr. Martin pointed out that they could not go there because battered women go there and that the hospital would recognize the signs.  During this discussion, about what hospital to attend, Mr. Martin continued to ask her whether she was going to tell the police what happened to her.  Mr. Martin suggested that M.L. tell the authorities that the scars and bruising were the result of an Indian woman assaulting her at the Bryan Adams concert.  Mr. Martin and M.L. attended the hospital.  M.L. told the doctors what she was told to tell them, while Mr. Martin sat next to her.  She added that she told the doctor a story because she was afraid of Mr. Martin.

[110]     After leaving the hospital they visited M.L.’s mother at her mother’s home.  While at the home M.L. asked Mr. Martin to stay in the truck because she did not want her mother exposed to him.  While inside the home, her mother did not want M.L. to leave.  M.L. was concerned about her mother’s safety; not knowing what Mr. Martin would do if they stayed there.   

[111]     M.L. wore sunglasses and had a patch over her eye, because it was black and blue.  She did not want her mother to see her injuries.  Her mother wanted to know what was going on.  M.L. told her mother that she could not talk right now, and stated that she could not let Mr. Martin into the home because she was afraid what he would do to her. 

[112]     While speaking with her mother, her mother asked M.L. to go into the bathroom so they could talk.  She told her mother that she could not stay because her father was not there and she did not know how angry Mr. Martin would become.

[113]     She told her mother, while in the bathroom, to call the police because she needed help.

[114]     When she exited the bathroom she observed Mr. Martin standing at the top of the steps “not looking happy at all”.  He whispered under his breath that she had told her mother what happened to her and she agreed that she did, because she could not lie to her mother. 

[115]     M.L. left the premises with her children and Mr. Martin. They drove to their home in Memracook.  After arriving home, M.L. bathed the children and put them to bed.  Following that Mr. Martin wanted to go into the bedroom and have sex with M.L.. As they were about to have sex, Erica knocked on the door.  Erica entered the home under the pretext that M.L. owed her money for babysitting.  Erica insisted that M.L. have a cigarette.  When the cigarette package was given to M.L. she noticed that Erica had written on the cover that her mother knows, Don is nearby and the police on their way.  While in the kitchen Mr. Martin came into the room and mentioned that he did not like to be interrupted when he is about to have sex. He then told Erica to leave. Erica exited and Mr. Martin locked the door behind her.  Unbeknownst, to Mr. Martin, M.L. unlocked the door knowing the police were on their way.  M.L. and Mr. Martin went into the bedroom and were about to have sex when they heard the police arrive.  While in the bedroom M.L. stated that Mr. Martin made her undress. She stated, “he got undressed and laid down on the bed and made me straddle him close to his face”. The last thing that he said to her, was “if I smell or taste any piss on this, I’m biting it off”. She then heard someone call Mr. Martin’s name.

[116]     M.L. testified that she did not recall having consuming alcohol or drugs during the date and time in question.  She also stated that Mr. Martin was completely sober, as she did not smell any liquor coming from him, nor did she see him consume any drugs, at any time. 

[117]     M.L. estimated that the entire ordeal lasted for approximately 20 hours. 

The Evidence Adduced in the Hearing

[118]     In present case, the evidence adduced consists of extensive documentary evidence relating to Mr. Martin, Exhibits 1 to 14; viva voce evidence of Dr. Neilson, a forensic psychiatrist, and her assessment report Exhibit 16, and viva voce evidence of a victim, M.L..

[119]     Mr. Martin did not proffer any evidence in this hearing.

Exhibits 1 to 14: The Documentary Evidence

[120]     The voluminous documentary evidence proffered in this hearing consists of thousands of pages contained in 14 volumes, Exhibits 1 to 14. Most of the information contained in these volumes relates to Mr. Martin’s institutional behavior and treatment programs while in the custody of numerous federal and provincial correctional institutions and while under their supervision. Most of the documents presented are from the files of the Correctional Service of Canada (CSC), including the National Parole Board, covering the extensive time during which Mr. Martin was in custody.

[121]     These documents, for the most part, have been generated by those tasked with the responsibility of recording accurate information for the purposes generating official reports and/ or public records.  In other words, these extensive documents were compiled as part of public officials’ regular duties and responsibilities within the correctional system. They were prepared for the purposes of recording the progress and problems experienced by Mr. Martin and include, in some instances, the opinions and recommendations of the authors. Their sources include Mr. Martin, and other staff members.

[122]     The defence admitted the authenticity of these documents and agreed that they could be admitted for the proof of their contents, subject to the Court giving them the appropriate weight. It should be noted that the Court ignored the documentation authored by Karl Toft, which pertained to the Kingsclear Youth Training Centre, for the reasons apparent in the Court record; as did Dr. Neilson in formulating her opinions.

[123]     As stated, most of the documents contained in Exhibits 1 to 14, were compiled by public officials in exercising their respective duties, such as, probation officers, parole officers, psychologist, psychiatrist and other public officials, which includes court documentation. For example, official documents such as: pre-sentence reports, Crown sheets, criminal records, psychological/psychiatric assessments, National Parole Board Decisions, assessments for decisions, correctional plan progress reports, community assessments, and program performance reports. The degree of trustworthiness inherit in these documents derives from the obligation or duty of the creator to record accurate information as part of their duties in the ordinary course of their employment.

Dr. Neilson’s Evidence and her Expert Report: Exhibit 16

[124]     Dr. Neilson, a forensic psychiatrist, provided the Court with a very comprehensive and thorough assessment report, Exhibit 16, and testified in relation to her assessment report of Mr. Martin. I accept that she assessed Mr. Martin in the manner she considered appropriate in keeping with her professional standards. She thoroughly reviewed the extensive materials complied in Exhibits 1 to 14, and interviewed Mr. Martin. Any extraneous evidence considered by Dr. Neilson’s opinions was formed according to recognized normal psychiatric procedures. She considered the reliability of that information, its accuracy and its significance.

[125]     Having carefully considered Dr. Neilson’s evidence, and her report, Exhibit 16, the factual material she referred to, the tests and measures she used to assess Mr. Martin, and the results as well as that her clinical impressions were appropriately factored in and based on proven facts and admissible evidence, I have no difficulty in accepting her uncontradicted evidence, as there is ample evidence to support her conclusions, which were appropriately based upon evidence before the Court. Indeed, I found her to be a very credible and helpful witness with a great deal of experience and knowledge in her field of expertise. She was very articulate and understandable in providing her evidence. Dr. Neilson’s knowledge, coupled with her experience as an expert witness in numerous dangerous offender hearings, was demonstrated in her ability to clearly explain her observations, and opinions.

[126]     Dr. Neilson interviewed Mr. Martin for the purpose of preparing the assessment report on 11 occasions between June 9, 2010 and July 14, 2010. The total amount of interview time was approximately 25 hours. Throughout the time of the assessment Mr. Martin remained in custody at the Central Nova Scotia Correctional Facility, and was assessed as a day patient (not an inpatient) both at his request, and as is the usual practice of the facility. Collateral sources of information provided by the Crown, which included file materials documenting Mr. Martin’s prior convictions and his correctional history. Medical assessments were also included in the extensive documentation provided to Dr. Neilson.

[127]     Other than Mr. Martin’s refusal to participate in a penile plethysmogram, a PPG examination, because he did not want to don the required shoes and coveralls during the transportation to the examination site as per Correctional policy, he participated in the interview process.

[128]     Dr. Neilson did note that initially when she spoke to Mr. Martin about participating in the PPG examination she was surprised that he agreed to participate, because in his previous assessments at CSC he had refused.

[129]     Psychological testing was conducted by a Staff Forensic Psychologist, and his opinion has been incorporated into her report and used in formulating her opinion.

[130]     Dr. Neilson also reviewed Exhibits 1 to 14, the 14 volumes of documentary evidence, in formulating her opinions.

[131]     She explained the significance of having Mr. Martin participate in the PPG examination. She stated that she was interested in determining whether or not he may have sexual arousal to violence, which seemed to her to have been a thread within Mr. Martin’s offence history. In other words, she wanted to determine whether there was an element of sexual sadism. She further explained that absence of this examination does, somewhat, impact her assessment of Mr. Martin; in that, the rating scales used allows a score for someone who refuses to participate. She stated that a neutral score of zero is used for that particular item, and added that if he had tested positively for deviant sexual arousal, he would have been scored higher on certain of the risk assessment instruments. This useful information could also have been used to determine whether it needs to be a treatment target for him for future sexual-offender treatment.

[132]     Dr. Neilson stated that the thrust of her assessment is to be able to document dispositional factors, any historical factors, any clinical factors, or any sort of contextual factors that relate to risks and/or treatability and future management and supervision.

[133]     She also pointed out that the differences in the risk assessment done by Corrections Canada officials, and her assessments. Corrections Canada seek to discover what someone’s risk of violent re-offending is, and look at general re-offence rates which is less what she is interested in when she is doing that sort of assessment. She is predominately interested in whether someone is going to commit a future violent offence or a sexually violent offence, whereas Corrections Canada officials are often interested in any form of recidivism, be it violent or non-violent. She added that although the assessments instruments are different, they do overlap.

[134]     After Dr. Neilson described the various factors used in the application of certain risk assessment instruments, she commented on the Psychopathy test that she administered on Mr. Martin, which is a test of a person’s degree of psychopathy; put differently, their degree of badness. Psychopaths are good at lying, being conning, being manipulative, being grandiose, being very glib and slick in their social interactions, being callous, not having a lot of empathy.

[135]     She explained that the cutoff for being declared a psychopath is 30 points, but there is a lot of recognition within the psychological and psychiatric community that the cutoff is quite arbitrary. Someone who scored a 28 is not going to be much different to someone who scored a 32. Dr. Neilson pointed out that the reason psychopathy is important is because people with these characteristics are quite good offenders. And the fact that they have done things repeatedly through their life behaviourally indicates that they are likely going to do that in the future.  It is a good indicator of risk of future violence.  The higher the psychopathy score, the more likely the offender is going to continue to engage in that kind of behaviour throughout the rest of their life because it’s been such a pattern for them during their life. Moreover, the score is a lifetime score.

[136]     Dr. Neilson explained the various tools that she used in conducting her assessment of Mr. Martin, including the VRAG, SORAG, and Static-99 tools. The VRAG essentially measures the propensity of an offender to commit future violent offences, and it is based on a population that was normed on Canadian men in Canadian prisons who are similar to Mr. Martin. She also described the SORAG tool, which measures the risk of violence that includes sexual violence. It is very similar to the VRAG in certain respects, but it is different than the VRAG because it includes the results of the PPG examination. Where there are no PPG results, as in the case with Mr. Martin, the test uses a neutral score. The Static-99 tool provides an indication of the propensity of a sexual offender to engage in another sexual offence at 5, 10, or 15 years in the future.

[137]     Dr. Neilson also explained the use of three other tools that are used in the course of her assessment: the HCR-20, the SVR, and the SERA. These tools are typically used predominantly at the forensic hospital because they are tools that held the psychiatrist in guided clinical assessments; they are non-actuarial. These clinical tools are sometimes for determining change and determining interventions so that the HVR is predominantly for predicting violent re-offence, SVR for sexual violent re-offence, and the SERA for spousal assault.

[138]     Dr. Neilson explained that when she is looking at someone like Mr. Martin, who has a history of violent offences as well as sexually violent offences, she is interested to know what the future likelihood is of committing not just violent offences but also sexually violent offences.

[139]     In Mr. Martin’s case, these tools were applied because he is neither a pure sexual offender nor a pure violent offender. He has done both.

[140]     At page 32 of Exhibit 16, Dr. Neilson’s assessment report she wrote:

Mr. Martin is a man of average build is somewhat overweight and appears his stated age. He wore a cap on his head which he indicated was an Islamic religious headdress. He has tattoos on both forms (a Pegasus/Bart Simpson/a skull/parrot). He was appropriately groomed on all occasions. He did not evidence intimidating or aggressive behavior, and demonstrated appropriate social interactions with no social deficits noted. He was cooperative during the assessment process although was prone to evading direct answers to questions by telling elaborate stories that were off-topic and that painted him in a positive light. At other times, he disclosed more information than was contained in the file. At no time did he demonstrate anger or irritability at the line of questioning, although at times he became flustered with certain questions, prompting him to respond “no reply”, or saying he was too tired to answer. Generally his mood was calm although in the latter stages he openly expressed anxiety appropriate to the context/content of the interview situation.

Mr. Martin’s thought processes were coherent, logical, and organized. There was no impaired reality testing. Although he answered the questions posed to him in a seemingly straightforward manner with full narrative responses, some of his responses seemed superficial and disingenuous, as though he was parroting notions learned in previous therapeutic programs. On several occasions his responses differed in significant ways from responses he has given to others (according to the file), and differed yet again when re-told at later interviews. It was difficult therefore to determine which version of events, if any, was accurate. In recounting his violent and criminal behavior, Mr. Martin generally denied, minimized, justified, or displaced blame onto others. His level of remorse and victim empathy was low, non-spontaneous, and superficial. For example, when asked about which offense was the most serious, he indicated that the 2000 offense was because that was when he realized he had a serious problem (not because of the serious physical and psychological damage done to the victim, or the damage done to the relationship with his half-brother, or any extended family members). Although Mr. Martin expressed motivation for rehabilitation, it appeared to be predominantly related to successfully progressing through the current proceedings rather than due to a personal commitment to stop offending. This is exemplified by his refusal to cooperate with the PPG testing. His level of insight into his degree of dangerousness appeared poor: he does not perceive himself to be a ‘sex offender’ and therefore consistently underestimates the risk he poses to others.

[141]     Dr. Nielsen also referenced the DSM-IV diagnosis she made with respect to Mr. Martin at pages 32 to 33 of her report, Exhibit 16.

[142]     She described Axis 1, as psychiatric syndromes; Axis 2, as personality disorders; Axis 3, as medical conditions: Axis 4, as current psychological stressors; Axis 5, as global assessment of functioning.

[143]     With respect to Axis 1, she stated that Mr. Martin reported that his alcohol dependence is currently in remission, and that his cannabis dependence is currently in partial remission. She also indicated possible sexual sadism. On Axis 2, she diagnosed Mr. Martin as having antisocial personality disorder. On Axis 3, she indicated that Mr. Martin reported that hypoactive sexual desire and erectile dysfunction. Axis 4, she noted that Mr. Martin has problems relating to interactions with the legal system and problems relating to primary support group. And, lastly, on Axis 5, she noted moderately serious symptoms of personality dysfunction and moderately serious impairment in social function.

[144]     Dr. Neilson’s violence risk assessment is discussed at pages 33 to 34, where she explained the purpose of the violence risk assessment and the method of violence risk assessment, emphasizing that there are two ways to predict the risk of future violence, and they are not necessarily mutually exclusive. She wrote:

The first way is by an actuarial analysis i.e. according to grouped statistical data (similar to the way car [insurance companies determine their rates based on likelihood of future accident). These actuarial methods are fairly heavily based on historical/static (unchanging) factors (e.g. number of prior offences, age at index offence, school maladjustment, history of alcohol problems, etc.) that are known to be associated with violence. These factors are analyzed in a systematic fashion, and generate a statistical probability of re-offending that can be expressed in broad categories (low, medium or high) or by numeric probabilities. However, actuarial scales do not deal with predicting individual behaviour. They provide a framework within which an individual is placed within a group having greater or lesser total risk than L individuals in that group. This is similar to the manner in which car insurance companies consider “static” factor such as age, sex, number of prior accidents, previous claims, etc., and determine insurance rates accordingly.

The advantage of actuarial assessments is that they have been validated on a wide array of offender populations, and they have been shown to have good inter-rater reliability (i.e. good ability to predict the behaviour of interest from one observer to another) and they have been shown to have good validity (i.e. their prediction of violence risk is good on a group basis). On the other hand, actuarial violence risk assessments have been criticized for their focus on static/unchanging/historical features, and for the probabilistic nature of risk prediction.

The second way of predicting the risk of future violence is by considering variables that are specific to the individual case. Such assessment instruments take into account both static (unchanging) and dynamic (changing) variables that are known through the literature to be associated with violent recidivism, allowing the clinician to identify variables that are specific to the individual offender that might impact their individual risk. To compare again to car insurance, the insurance company might take into account the individual factor that the person lives in Pictou Co., compared to Toronto, and adjust the rate accordingly. In the case of predicting violent recidivism, if an offender develops a disorder that renders him unable to walk, he might be less able to offend, reducing his individual risk. If he starts to drink, this may raise his risk.

[145]     She explained the six violence risk assessment instruments that were employed in her assessment of Mr. Martin, three of which were actuarial assessments that consider static risk indicators: VRAG, (violence risk assessment guide) SORAG, (sexual violence risk management) and Static 99R. The three non-actuarial, violence risk assessment guides incorporate dynamic risk factors. They are: The Historical Clinical Risk Management 20, the Sexual Violence Risk Management 20, and the Spousal Assault Assessment Guide.

[146]     In addition, Dr. Neilson used the results from an assessment called the Psychopathy Checklist-Revised, or the PCL-R.

[147]     Dr. Neilson’s findings for Mr. Martin’s assessment are set out at pages 35 to 40 of her report.

[148]     With respect to the psychopathy checklist, PCL-R, her results are as follows:

Mr. Martin evidenced a variety of traits associated with psychopathy.

In particular, he evidenced the following traits to a large degree (i.e. score 2): pathological lying; conning/manipulative; callous/lack of empathy; promiscuous sexual behaviour; early behavioural problems; impulsivity; failure to accept responsibility for his own actions; many short term marital relationships; juvenile delinquency; revocation of conditional release; and criminal versatility.

He evidenced other traits to a lesser degree (i.e. score = 1): glibness/superficial charm; grandiose sense of self-worth; lack of remorse or guilt; shallow affect; parasitic lifestyle; poor behavioural controls; lack of realistic long term goals; and irresponsibility.

He was not felt to evidence the following items to a sufficient degree to warrant scoring (i.e. score = 0) need for stimulation/proneness to boredom.

Mr. Martin’s raw score on the PCL-R was 30, placing him just at the cut-off score for a prototypical psychopath. As compared to other male offenders, his score on the PCL-R is at the 84th percentile, meaning that 16% of male offenders would score higher (or demonstrate more psychopathic traits) than Mr. Martin.

The nature of an offender’s psychopathy can be divided into categories, or “factors” and those can be further divided into sub-categories or “facets”. This analysis helps to describe the extent to which an individual demonstrates the different traits associated with psychopathy.

Factor I denote the underlying personality/emotional traits associated with psychopathy [e.g. selfish, callous, and remorseless use of others] can be sub-divided into ‘interpersonal’ and ‘affective’ facets.

Factor 2 denotes the behavioural traits associated with psychopathy [e.g. living a chronically unstable, irresponsible, and socially deviant lifestyle] and can be divided into ‘lifestyle’ and ‘antisocial’ facets.

Mr. Martin’s results on the factor analysis indicate that he scored at the 65th percentile on Factor 1. In other words, he demonstrates the interpersonal and affective traits of psychopathy to a moderate degree, with the affective traits (i.e. lack of remorse or guilt; callous/lack of empathy; failure to accept responsibility) predominating on the facet analysis. He scored at the 68 percentile on Factor 2. In other words, he demonstrates the behavioural traits associated with psychopathy to a moderate degree with predominantly antisocial traits on the factor analysis (i.e. lifelong criminality and behavioural problems)

Factor 1 scores in this range have been associated with violence that is instrumental in nature (i.e., purposeful, deliberate, or used as a means to meet an end given that the deliberate perpetration of violence requires a certain degree of remorselessness and fundamental disconnection from the emotional experience of others. Factor 2 scores of this magnitude have been associated with violence that is reactive (i.e., in response to an environmental trigger). Therefore, an individual with Mr. Martin’s “mix” of psychopathic traits is seen to be at risk for violent recidivism that is perpetrated in a planned and/or callous manner, as well as that which results from impulsive reactivity.

Of note, this finding is consonant with Mr. Martin’s offence history (in which both instrumental and reactive acts of violence are seen).

The results from the May 15, 2002 PCL-R assessment by Mary Ann Campbell M.A. Ph.D. Forensic Risk Assessor Candidate Correctional Services Canada indicates: “[t]he presence of a moderately high level (67th percentile) of psychopathic traits compared to other offenders. Consistent with the previous psychology report (1997-05-09), this score fell below the clinical cut-off required for diagnosis of psychopathy. Evaluation of PCL-R subscales indicate that Mr. Martin presents a high level of the core interpersonal and affective features of psychopathy (60th percentile) such as manipulativeness, shallow affect, failure to accept responsibility for actions, and lack of empathy, remorse or guilt. Further Mr. Martin fell in the moderate range of the second PCL-R factor (51st percentile) which measures the presence of socially deviant lifestyle behaviours such as poor behavioural controls, juvenile delinquency, impulsivity, irresponsibility and poor behaviour on conditional release”. The “raw” PCL-R score according to her assessment was 28.4. The standard measurement of error for this instrument is +/- 3.5. Thus, the current score when compared to the previous is within the accepted range.

[149]     In her evidence, Dr. Neilson discussed the effects of psychopathy. Although, some aspects of psychopathy may dissipate with age, there is no treatment per se, for psychopathy. She also testified that people with psychopathy are likely to re-offend at higher rates than people who do not have psychopathy.

[150]     Dr. Neilson testified that Mr. Martin’s score on the psychopathy check list was 30, which is just at the cutoff level for psychopathy. She added that in Europe the level of psychopathy, the cut off is 27, and in North America it is 30. It is fairly arbitrary. In some places, the cut off is 32, and in Canada, the cut off is 30. Dr. Neilson pointed out that her score, for Mr. Martin, was not dissimilar to a score that was done in 2002 by a psychologist at Corrections Canada, who scored Mr. Martin at 28.4. She explained what would account for the difference in the score, including when the tests were administered: one in 2002 and one in 2010. Dr. Neilson explained that most scores are within one or two points of each other. The number only really counts when you looking at the difference between 35 and 25 in terms of the risk assessment instrument. Dr. Neilson stressed that individuals with the higher level of psychopathy, the higher number, tend to be more difficult to treat and less amendable to change.

[151]     Dr. Neilson stated that Mr. Martin’s score in about the mid-60 percentile for both the Factor 1 and Factor 2, which means that he seems to have an even amount of deviousness and deviant-ness, deviant behavior, as well as devious personality characteristics. She added that these scores are consistent with what she saw in Mr. Martin’s offence behaviours, some seemed to be more instrumental than others. In other words, more planned, more purposeful, more deliberate, which would imply Factor 1, whereas others seem to simply reflect his anti-social orientation and behavior dis-control which would reflect Factor 2. She added that it was not at all dissonant with what she saw in Mr. Martin’s background.

[152]     Dr. Neilson testified that there are no particular aspects of Mr. Martin’s psychopathy that are more associated with violent behavior. She explained that the Factor 2 is more likely to be associated with the impulsive, reactive, emotionally-driven violence, but that is not the only kind of violence that Mr. Martin has perpetrated. She stated that he has perpetrated violence that has been very calculated, deliberate, prolonged, planned and executed. She cited as an example the assault against M.L. which occurred over a period of several days.

[153]     Dr. Neilson explained that because Mr. Martin is a violent offender, and also has been convicted of sexual offences, the Violence Risk Assessment Guide (VRAG) would likely underestimate his risks because it’s not taking specifically into account the sexual offences; it’s looking at violent incidents. She explained Mr. Martin’s score of 17, which is fully discussed in her assessment report as well.

[154]     Her results in respect to the VRAG are as follows:

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

Note that the base rate of violent recidivism in the validation sample of the VRAG was 31% when followed over 7 years and 43% over 10 years.

Using the VRAG, a total score of 17 was calculated. This score is assigned to Risk Category 7 (of 9 ascending risk categories). This corresponds to the moderately high risk category. Among offenders in the development sample for the VRAG, 11% obtained higher scores. Approximately 55% of offenders in Mr. Martin’s category re-offended violently within an average of 7 years after release, and 64% re offended violently within an average of 10 years after release.

[155]     Dr. Neilson testified that the SORG is probably the most appropriate risk assessment tool to use for Mr. Martin because it takes into account offenders who behave violently as well as those who behave violently sexually. She stated that Mr. Martin’s indicators are very similar to those of the VRAG except they include aspects specifically related to the sexual assault or the characteristics of a sexual assault. She added that at the time she conducted the assessment on Mr. Martin she did not know of his youth record, and scored him into a category 8. However, after she learned of his youth record, which included a conviction for a sexual offence, she stated that Mr. Martin rises to the highest category of SORG, which is a hundred percent of re-offence in seven years and in ten years. Dr. Neilson’s results with respect to the SORG are:

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

Note that the base rate of violent recidivism in the validation sample of the VRAG was 31% when followed over 7 years and 43% over 10 years.

Using the VRAG, a total score of 17 was calculated. This score is assigned to Risk Category 7 (of 9 ascending risk categories). This corresponds to the moderately high risk category. Among offenders in the development sample for the VRAG, 11% obtained higher scores. Approximately 55% of offenders in Mr. Martin’s category re-offended violently within an average of 7 years after release, and 64% re offended violently within an average of 10 years after release.

[156]     Dr. Neilson described the Static-99R assessment tool as specifically looking at the sexual recidivism only of sexual offenders, how often do people who have been convicted of sexual offences re-offend sexually, not violently. She explained that people who score high on this instrument are usually the most prolific re-offenders. She explained that when someone gets a high score on this instrument and they are not a male pedophile, it must be because they have a very extensive past history of offending or a very persistent history of offending sexuality.

[157]     Dr. Neilson’s results of her assessment using the STATIC 99R were:

Applied to Mr. Martin, the factors associated with increased risk are having convictions for non-sexual violence in the index offence; having prior convictions for non-sexual violence; the number of previous charges or convictions for sex offences; any unrelated victim; and prior sentencing dates. Factors associated with neutral risk are having ever lived with a lover for at least two continuous years; any male victims; and any stranger victims. Factors associated with lowered risk are: current age.

Mr. Martin’s scored a 6 on this risk assessment instrument. This corresponds to the high category for this instrument. Individuals with this score, on average, sexually re-offend at 31.2% over 5 years, and 41.9% over 10 years. Based on the STATIC 99R score Mr. Martin’s relative sexual recidivism risk is 2.91 times higher than the “average” sex offender (defined as a score of 2 on the STATIC 99R).

[158]     Dr. Neilson explained why she used the HCR and the SVR is to enable her to apply some clinical rationale to Mr. Martin’s situation. She looks at issues that are clinical guides. They do not give a number per se, but the more features that the person matches, the higher the risk they are thought to have. The aspects in relation to the HCR in terms of Mr. Martin’s violent behavior have to do with the fact that he started being violent at a very young age, as he has been persistently violent throughout his lifetime. He has problems with substances, employment relationships, that he likely has psychopathy, significant evidence of early maladjustment, personality disorder, supervision failures, and poor insight, etcetera, so all of those factors that are listed on the bottom of page 39 of the report, Exhibit 16.

[159]     Clinically, Dr. Neilson judged Mr. Martin to be at least moderately high risk of future violence on that instrument. Similarly, on the SVR-20, notwithstanding that Mr. Martin does not have child male victims, she would still judge him as being a very high risk to re-offend sexually because he has this very persistent pattern of sexual re-offending that has really not abated. She stressed that Mr. Martin had had at least one offence every 15 years in his life starting at the age of 12 or 14, and even with supervision, he has offended. Thus, she deemed him to be at a high risk of sexual offence.  

[160]     Dr. Neilson’s results of the application of the HCR-20, are as follows:

Mr. Martin’s indicators of increased risk on the HCR-20 are: previous violence, young age at first violent incident, relationship problems, employment problems, past substance abuse problems, presence of 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, noncompliance with remediation attempts, and likelihood of exposure to stress. His indicators of neutral risk are absence of major mental illness, and no active symptoms of major mental illness. Moderating factors taken into account are his advancing age, and time in the community offence free, and prior treatment programming to address his risk of violence. Taking into account the variables on the HCR-20, he is judged to be a moderately high risk of future violence.

Mr. Martin’s indicators of increased risk on the SVR-20 are: provisional diagnosis of sexual deviation, victim of child abuse, presence of psychopathy, past substance abuse problems, past suicidal/homicidal ideation; relationship problems, employment problems, past non-sexually violent offences, past non-violent offences, past supervision failure, high density offences, multiple offence types; physical harm to victims; use of weapons or threats of death, extreme minimization/denial of offences, attitudes that support or condone sexual offences, lack of realistic plans, and negative attitude toward intervention. The indicators of neutral risk are absence of major mental illness. Protective factors considered are his advancing age, the period of time in community offense free, and his having made some gains (albeit modest) in prior completion of cognitive behavioral sexual offender/family violence programming. Taking into account the variables on the SVR-20, he is judged to be a high risk of future sexual violence.

[161]     Dr. Neilson explained why she used the SARA instrument rather than the DVRAG (Domestic Violence Risk Assessment Guide), in essence, because the victim of the predicate offences was not Mr. Martin’s spouse. Her results of that assessment are as follows:

Mr. Martin’s indicators of increased risk on the SARA include: past assault on family members; past assault of strangers /acquaintances, prior supervision failure, recent relationship problems; recent employment problems, victim of and/or a witness to family violence as a child or adolescent; substance misuse, personality disorder with anger/impulsivity/behavioural instability, past physical spousal assault, past sexual assault of intimate partner; past use of weapons and/or credible threats of death; past violations of “no contact” orders; extreme minimization or denial of spousal assault history; attitudes that support or condone spousal assault; degree of violence in index offense. The factors on the SARA associated with neutral risk include lack of suicidal or homicidal ideation in the last year, lack of psychotic or manic symptoms, no use of weapons or credible threats of death in the index offense, taking into account the variables on the SARA, he is judged to be a high risk of future spousal assault.

[162]     Dr. Neilson corrected her results in court, by stating that there were threats in the index offence.

[163]     Dr. Neilson discussed the violence variables pertaining to Mr. Martin in an attempt to explain the HCR and the SCR, the variables that are associated with violence risk and the things that she looks at clinically, which are set out in her report at pages 40 to 47. She explained that in terms of violent history, things that she would look for include things like the chronicity and diversity of the offending, whether or not there has been an escalation and whether there is coerciveness.

[164]     In Mr. Martin’s case Dr. Neilson noted that he has a very life-course persistent incidence of violence and sexual violence, both, and very diverse offences that he engaged in. She noted that Mr. Martin was violent towards persons, property, and engaged in sexual violence, domestic violence, and partner violence.

[165]     With respect to diversity, in the context of risk, Dr. Neilson pointed out that Mr. Martin is not a specialized sexual offender, he is non-diverse, an indiscriminate offender. In other words, he commits violent offences in numerous different circumstances and in numerous different sorts of scenarios, with different types of victims, different relationship to them, and different ages. Mr. Martin’s motivations are likely quite diverse.

[166]     Dr. Neilson pointed out that the term escalation, as is discussed in her report, is not an escalation in severity, but also the length of time offence-free. How long does it take them to re-offend when they are in the community, and they are under either lesser supervision than in an incarcerated situation or when they are under no supervision at all? An escalation can be an increase in frequency. In other words, occurring more often when they get out; or it can be an increase in severity or an increase in density, the number of offences that occur.

[167]     Dr. Neilson commented that Mr. Martin’s frequency of offending has not abated. She noted that Mr. Martin had five prior sexual offences starting at age 14, and pointed out that the cut-point is about 15 years that they look at in terms of frequency and escalation. She added that Mr. Martin’s last offence occurred about 31 months after he was released from the Correctional Centre, but only six months after he got out of the half-way house, a very short period of time.

[168]     Dr. Neilson expressed the view that one cannot say that the predicate offences are a de-escalation, because one is not just considering the severity of the offence. One has to consider how quickly the offence occurred when Mr. Martin had minimal supervision and the type of offence committed.

[169]     Dr. Neilson explained what she meant by the term “cognitive distortions” as used in her report. She stated that it is a sort of a mechanism of moral disengagement. It is the way that offenders sort of talk themselves into or out of responsibility for behavior, or allows them to get over those mental hurdles in order to actually commit the behavior. For example, he slapped me first, therefore, I shot him. She further explained that it allows people to minimize their responsibility or justify the behavior that they engaged in. She provided the example of where Mr. Martin had stated his wife lied to the doctor about the nature of her injuries. It was easier for him to plead guilty than for her to be charged with perjury.

[170]     Dr. Neilson explained that when people engage in those kinds of cognitive distortions, it allows them to sort of justify their behavior. And it results in their inability to accept full responsibility for things that they have done. She added that this has been fairly consistent with Mr. Martin right from an early age. He does not tend to accept responsibility for his behavior, or accepts only a small degree of it.

[171]     She also pointed out that in order for a person to understand their behavior, he or she has to have good insight into actually what they did and a good understanding of what the breath of the harm was. Dr. Neilson further explained that this is similar to cognitive distortions, except cognitive distortions are things that help you to justify behavior that is already occurred, attitudes that condone violence or just the general attitudes that you carry, criminal attitudes that allow you to engage in those kinds of behavior, particularly as they relate to sexual offences.

[172]     Dr. Neilson testified that Mr. Martin has issues with self-awareness, as he tends to underestimate the factors that result in his being at risk of perpetrating violence or sexual violence, and does not seem to have either insight or the understanding of what those factors are and how he ends up in those situations. She added that means that he is not able to put in place the things that he needs to do to prevent those things from happening. As she stated, offence do not just happen. They happen through a series of deliberate decisions that offenders make, the same way that most activities occur through a series of deliberate decisions that one makes. She provided as an example the time when Mr. Martin failed to report his friendship with the victim, A.M.C., being alone with her in an apartment, pressuring her into answering questions that could be emotionally risky for him, allowing his anger to get out of control. As she stated, those seemed like small unimportant decisions to Mr. Martin which were certainly part of his offence cycle. She added that Mr. Martin had gone through programming and that he should have been able to recognize those and stop himself well before when he did.

[173]     Dr. Neilson also pointed out that the possession of pornography is a serious risk factor for Mr. Martin, and accordingly, should have been something he was aware of as a result of his programming. And if he was not aware of it, then he should have been after his parole officer told him about it. As Dr. Neilson stated, he kept it and moved it with him when he moved out and continued to use it.

[174]     Dr. Neilson stated that she discussed with Mr. Martin the risk factor involved, but did not seem to appreciate that it was a risk factor for him, and he maintained that he was going to use that material and was entitled to use it.

[175]     Dr. Neilson expressed the view that Mr. Martin does not seem to be sufficiently self-aware to know which personality deficits he had, which means that he doesn’t appear to be sufficiently self-aware to know what his risk factors are despite those things being hammered into the person when they are doing the programming and also by his parole officer.

[176]     In discussing the effects of psychopathy and treatment, Dr. Neilson noted that Mr. Martin continues to demonstrate quite a few of the characteristics of psychopathy that he appeared to demonstrate from a very early age, the dishonesty, failure to accept responsibility for his actions, the deceitfulness, and lack of empathy. These are the Factor 1 components that would impede him. However, she also noted that over time his propensity to be impulsive, and his propensity to engage in criminal activity may diminish, but it is the interpersonal and the emotional components that make it hard to work with therapeutically.

[177]     Dr. Neilson also commented on supervision problems. She stated that Mr. Martin has shown a willingness to continue to be deceitful and dishonest with supervisors and to omit to report risky situations, and as such puts people into situations of risk even maybe he is not fully cognizant of.  She further explained that what stands out for her is Mr. Martin’s lifelong pattern of ungovernability right from a very early age. And that seems to be the case that he will comply to a certain degree. She stated, but when you get this, “you’re not the boss of me kind of response” from Mr. Martin and which seems to feel that he knows better than the professionals who have been charged with supervising him or with assisting him to maintain a crime-free life.

[178]     Dr. Neilson expressed the view that Mr. Martin has not shown any evidence of burning out, or reducing acting out. She stated that Mr. Martin seems to have quite a life-course, persistent incidence of violence and sexual violence that started at an early age and continues. She indicated that usually burn-out doesn’t occur until 50’s or 60’s, that is the rate at which one can expect to start seeing a reduction.

[179]     With respect to past problems with alcohol abuse, Dr. Neilson stated that Mr. Martin reported that he been abstinent. He did use marijuana, and that would cause concern he could also resume other substances. However, she added that it is important to note that some of Mr. Martin’s offences did occur when he was under the influence of alcohol, but not all of them. She added that clearly alcohol is not something that Mr. Martin needs to be violent. He does not need the disinhibiting effect of alcohol or substances, but when he is influenced by those things, the violence appears to be greater and more intense.

[180]     Dr. Neilson commented on Mr. Martin’s problems with intimate relationship by noting that he tends to be someone who’s kind of domineering and aggressive in relationships and doesn’t seem to form relationship based on equality.

[181]     It’s based on his ability to control a more vulnerable person. He tends to choose partners who are vulnerable in some way. And that in part plays into his violence against intimate partners. She also noted that Mr. Martin is not a person who has a lot of social supports. His social supports seem to be pro-criminal associates.

[182]     She expressed the view that Mr. Martin is impulsive, he requires a need for stimulation, he is prone to boredom, and wants immediate gratification. She commented that his inability to establish stable employment is associated with an increased risk of getting involved in criminal activity.

[183]     Dr. Neilson stated that when Mr. Martin was employed at Saint Mary’s University and was using the support systems, he seemed to manage to keep himself offence-free.  However, as soon as those things started to fall apart, he started to resist supervision, resist the support that was offered to him by the parole system.

[184]     As Dr. Neilson stated one of the strongest predictors of future behavior is past behavior, and certainly for someone who has engaged in a lot of anti-social behavior during his lifetime, they are likely to engage in that kind of behavior in the future. She added, Mr. Martin has had a very long history of conduct problems starting at a very young age, and a very anti-social lifestyle orientation, which he has been very comfortable with and it doesn’t seem to have abated throughout his lifetime.

[185]     Dr. Neilson commented on the issues surrounding manageability within the community. She stated that one of the things that offenders have to do is devise and implement a pro-social life plan. They do that with their Correctional supervisors and part of what their Correctional plan involves is to try to set some realistic goals to try to learn to live a lifestyle that maybe isn’t as fast-lane or as exciting as their previous lifestyles were, but that still gets them through. She added that Mr. Martin seemed to have quite a lot of difficulty settling into that kind of lifestyle. He is happy with it for a certain degree of time, but then gets bored or needs to do something different, and he quickly and quite impulsively changes his life plan.

[186]     She noted that Mr. Martin is very impulsive in the way that he makes decisions without proper planning or in consultation with the supports that are paid to be in his life, such as his parole supervisor, consequently, he tends to get into trouble.

[187]     Similarly, with treatment, Dr. Neilson remarked that Mr. Martin seems to be able to manage in the treatment setting, and he appears to have made progress, but his ability to actually apply those gains when he is not in the treatment setting appears to be limited. Thus, he is not able to translate the skills that he has learned in the courses to real-life situations and in-the-moment decision making.

[188]     Dr. Neilson also pointed out that during Mr. Martin’s release pursuant to his Long Term Supervision Order, he was attending Ruth Simmonds, a psychologist, at the Halifax parole office. She was charged with providing him with maintenance treatment. Dr. Neilson stated that it was her understanding that Mr. Martin’s interactions with Ms. Simmonds were fairly superficial and he did not recognize the depth of the difficulties that he had.

[189]     In terms of Mr. Martin dealing with a plan to deal with his own risk factors, Dr. Neilson commented that Mr. Martin felt the need to plan for it in order to comply with his parole requirements, not necessarily because he specifically believes that he was someone who is dangerous and that the public needed to be protected from. She also commented on Mr. Martin’s motivation. She stated that it was not from motivation of being very insightful into what his difficulties were where his deficits were, and how he needed to correct them. It was more, “you tell me that that’s what the problem is, and you tell me that this is the requirement, so I’ll do it as long as I’m not caught doing otherwise. But as soon as you stop watching me, I ‘m going to do whatever I feel like”.

[190]     Dr. Neilson expressed the view that Mr. Martin has not had a robust response to treatment, in relation to his anger-aggression management, and in relation to his sexual-offender treatment. She added that obviously inasmuch as he re-offended having gone through those programs in a violent way and a sexually violent way, when the pieces should have been in place to assist him to desist from that.

[191]     Dr. Neilson was asked whether the fact that Mr. Martin sought permission from the Parole Board to take the treatment clause out of his Long-Term Supervision Order raised any concerns. Dr. Neilson’s response was that it would be of concern because people who are not continually aware of their propensity for violence tend to quickly forget and let their guard down.

[192]     Dr. Neilson commented, from a clinical standpoint, on the criteria for the dangerous offender status, which are set out in her report, Exhibit 16. She stated that Mr. Martin would have caused physical and psychological harm to the victim. She wrote:

The following conclusions arise from the definitions of long-term offender and dangerous offender as laid out in the Criminal Code of Canada, and are as follows:

1.      It is clear that Mr. Martin has caused significant physical and psychological, harm to his victims. The Court has available to it numerous victim impact statements and medical reports which detail physical injury and enduring psychological distress.

2.      Concerning Mr. Martin’s ability to control his impulses: Mr. Martin has repeatedly demonstrated a failure to resist aggressive impulses, resulting in violent and sexually violent acts and destruction of property. There is no empirically supported method of distinguishing an irresistible impulse from an impulse simply not resisted. However, there is no psychiatric or medical evidence to suggest that Mr. Martin has any psychiatric or neurologic disorder impacting behavioural control, or volitional impairment. Neither is there evidence that at any time Mr. Martin lacked capacity for rational consideration of his choices, or that he lacked an awareness of the (negative) personal consequences of his choices, or that he lacked awareness of the effects of his behaviour on others. In other words, from a clinical perspective, Mr. Martin should have, at all times, been able to control his impulses and conform his behaviour to societal norms. In the current offence, it is my opinion that Mr. Martin showed serious impairment in his ability to control his violent and sexually violent urges based on his intentional failure to refrain from risk-related behaviour (in the face of a stated intellectual V understanding of same), and his failure to desist from violent and sexually violent behaviour (in the knowledge of severe legal consequences to himself, and known personal consequences to his victim).

3.      There are no psychological operational criteria with regard to ‘brutality’ (i.e. the amount of suffering endured by the victim and/or the extent of the injuries inflicted) therefore no comment is made in this regard. The Court has available to it the statements of fact related to the nature of his offending, injuries inflicted, and numerous victim impact statements

4.      Similarly there are no psychological operational criteria with regard to ‘indifference’ (i.e. the intent of the offender to inflict harm). However, note is made of Mr. Martin’s failure to comply with supervision recommendations aimed at controlling his risk of re-offence, (e.g. defiance of recommended restrictions on pornographic material, and the non-reporting of what should have been known by Mr. Martin to be “high risk” behaviour with a potential victim to his parole officer). This may lend some clinical support for the notion that Mr. Martin manifest “indifference to the reasonably foreseeable consequences of his behaviour”.

5.      In arriving at a professional judgment concerning Mr. Martin’s risk of violent (including sexually violent) recidivism I have considered risk assessment instruments that weigh both static and dynamic factors for the risk of future violence. In addition I have considered relevant case-specific factors such as his prior treatment response, his advancing age, and periods of time in the community offence free. Examining these variables and the risk assessment instruments employed, I am of the opinion that Mr. Martin poses a high risk of re-offending violently (including sexual violence) compared to the general offender population.

6.      From a clinical standpoint, Mr. Martin has demonstrated a diverse and persistent pattern of violent and sexually behaviour that started in early adolescence and has continued through to the present.

His victims have typically been females with whom he is related (e.g. wife, former common-law partners of brothers, 14-year-old niece), but he has also had acquaintance victims (e.g. elderly man; two week postpartum female friend; current victim). Victims have ranged from the very young to the very old, but all have in some way been vulnerable, physically, emotionally or psychologically. The range of violence has been equally broad with less severe physical assaults through to highly intrusive, prolonged sexual assaults. Some incidents appear to have been reactive (impulsive/emotion-driven); others appeared more calculated (planned). In some cases, alcohol was a contributing factor; in others it was not.

Overall, Mr. Martin’s violence appears to be directly or indirectly related to control issues:

⋅           his need to manipulate/control others who he causes to feel vulnerable;

⋅           his need to demonstrate superiority over others who cause him to feel vulnerable

⋅           inadvertent revelation of his dearth of emotional self-control or sexual self-regulation

As such, his expected future pattern of violent behaviour is one that would involve physical or sexual aggression and either calculated planning or impulsive behavioural dyscontrol, (or more typically a combination of both). It would be directed at victims who are vulnerable or with whom he feels vulnerable (hence intimate female relationships are at particularly high risk, as well as female children). The risk of such behaviour seems to markedly escalate in situations in which he is subject to unmanageable life stress, when he experiences negative emotions (rejection, humiliation, shame), when he incurs relationship stress, engages in substance abuse, experiences sexual frustration, or reverts to a criminal lifestyle.

In terms of imminence, Mr. Martin has seldom had periods in the community in which he has remained offence free, with or without supervision. During his most recent period of residential community supervision, he did not re-offend until the (highly structured/externally controlled) residential supervision condition was lifted, although he engaged in high risk-related behaviour prior to that time. Thus, it is reasonable to conclude that in future, absent similar highly structured external controls, his risk of re-offence would be reasonably imminent.

The issues of potential victim groups, imminence, circumstances, frequency and severity are well established and remain live with respect to Mr. Martin’s offending behavior.

7.      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 related to his treatment needs and supervision requirements:

Mr. Martin is an offender with substantial risk of violent re-offence whose treatment in rehabilitative needs, as well as supervisory requirements will be very high. Gradual and structured release planning is recommended if and only if Mr. Martin takes the initiative to address his violence risk factors effectively, and cooperates fully with community supervision to assist him to manage his violence risk factors, and works to engage in pro-social behaviour in the future. He will be highly system-dependent for resources.

[193]     Dr. Neilson also expressed the view that Mr. Martin did not restrain his behavior in the circumstances of the predicate offence, as there were many opportunities that Mr. Martin could have stopped his behavior, because sexual offences do not occur in an instant. They occur through a series of small and seemingly unimportant decisions that lead him to the place he’s at, particularly, for someone who’s already gone through treatment, he should have been aware of things like failing to report relationships, being alone with someone, forcing them to discuss an issue that may result in his ire being raised, pressing the issue. She added that things like having possession of pornography, and not using the parole system to his advantage, those are all things, that could have arrested the potential development of this particular offence.

[194]     Dr. Neilson also expressed the view that there were several opportunities during the actual assault upon A.M.C. that Mr. Martin could have exercised restraint, had he been reading the signs correctly. She added, but because he failed to or chose to fail to read those signs he did not restrain himself. Thus, in her view there were many opportunities not just proximal to the offence but also a little bit more remote to the offence in which he could have restrained himself along the continuum and failed to do so.

[195]     With respect to Mr. Martin’s ability to control his impulses, Dr. Neilson commented that Mr. Martin has over the years repeatedly demonstrated a return to aggression and sexual and non-sexual violence. From a clinical point of view, there is no psychiatric or neurological reason why Mr. Martin could not restrain his behavior.

[196]     Dr. Neilson commented that while there is no criterion psychologically for indifference, Mr. Martin was indifferent to measures that were designed to help him to control his risk for re-offence, so supervision, not reporting high-risk behavior.

[197]     Dr. Neilson, from a clinical perspective, provided what she believed to be a pattern in Mr. Martin’s previous offence history. She stated that what she looks for is the circumstances under which someone tends to have offended, what their victim types have been, under what circumstance, and under what the sort of proximal antecedents to violence have been. For Mr. Martin, she noted that he had a range of victims, some are related to him, some have just been acquaintances, some have been very young, some have been very old. But certainly, all of them seem to have been in some way vulnerable to him. She added, the nature of the assaults has certainly been very broad. He had very long, intrusive, very harmful sexual assaults and confinements and others that have been less severe physical assaults. From a clinical point of view, Dr. Neilson would expect that his violent propensity relates to his need to manipulate or control people or to demonstrate superiority over them, or when he has not been able to control himself either sexually or emotionally. Those are the circumstances under which she would expect future violence to occur.

[198]     She commented that the high-risk group or potential victims, are people who are more vulnerable than him, or people that he feels vulnerable with. That potentially could be dependent females or people that he can dominate. Certainly, intimate female relationships are very much at high risks. Female children if he’s in that situation where he feels that he can have control over that person.

[199]     Dr. Neilson was asked to comment on Mr. Martin’s contact or attempted contact with victims following the offences, post-offence contact. She stated that it was manipulative behavior in an attempt to get people to change their story or their testimony so that it looks more favourable to him, which is consistent with his psychopathy.

[200]     Dr. Neilson commented on treatment and rehabilitative needs and supervision requirements. She observed that like most people facing a dangerous offender designation they indicate that they are highly motivated to participate in treatment programs, but what is most telling is their motivation when they were actually in the community under supervision. In Mr. Martin’s case, for example the request that he have a treatment clause removed would indicate that he is less motivated when he is not under the gun, when he is not in a situation.

[201]     Notwithstanding that, Dr. Neilson commented that Mr. Martin does express a positive intention to participate in programs, which is a good thing. She added, whether that will translate into a positive action is unknown, although certainly in the past he seems to have fallen off in terms of his motivation.

[202]     In considering what benefit Mr. Martin might get from programs, Dr. Nielson said that requires consideration of what benefits he received from past programs, and what his involvement has been. In Mr. Martin’s case, she noted that he made limited gains in the past in the High-Intensity Sex-Offender Treatment Program. Apparently, he did somewhat better in the High-Intensity Family Violence Program, but he wasn’t able to put either of those programs to practical benefit when the situation arose.

[203]     With respect to whether Mr. Martin is manageable in the community at this point in time, Dr. Neilson commented that his behavior was somewhat manageable, although he managed to sneak under the radar an awful lot of things that were potentially risk-related behaviours, such as being in possession of pornography and failing to report relationships.

[204]     She added, that when Mr. Martin moved out on his own, he basically rejected supervision and failed to report important points of risk to is parole supervisor, failed to use the parole system to keep himself safe, and to keep other people safe. She further added that Mr. Martin certainly demonstrated that he was not able to manage, as he does not have sufficient internal controls to manage without quite significant external control.

[205]     Dr. Neilson stated that to her knowledge nothing has changed regarding Mr. Martin’s assessment since she originally wrote the report in 2010.

[206]     She agreed with that the circumstances surrounding the commission of the predicate offences are less intrusive, less prolonged than in the M.L. offence. However, Dr. Neilson was not prepared to agree with the suggestion that the predicate offences were much less serious than the M.L. offence.

[207]     It was suggested to Dr. Neilson that the predicate offence was much less serious than the M.L. offence, when one considers the sexual component of the offences, in terms of the nature of the offence. Dr. Neilson, responded by pointing out that in terms of risk assessment, both offences are sexual assaults, regardless of the degree of intrusiveness.

[208]     Dr. Neilson agreed that Mr. Martin did show some passing recognition that what he was doing was wrong during the commission of the predicate offence, but added that Mr. Martin should have recognized the numerous steps prior to that in which he could have demonstrated some restraint, but did not. She also added that while it shows some recognition that what he is doing is wrong, it is hard to know what his intention had been, whether he had only intended to go that far or whether the intention had been something different.

[209]     It was suggested to Dr. Neilson that the fact that Mr. Martin did stop what he was doing during the predicate offence, does represent some translation of the therapeutic goals that he’s had into leaving the situation before it got any worse. She agreed that is one interpretation, but added another way of interpreting it would be that in many of his other offences, he wasn’t stopped by being arrested or caught. He just stopped. So, it is possible that this was the same thing then, and that in fact he’s made no gains, that he just tends to stop when he realizes either he’s in a lot of trouble, or he is fed-up, or he’s achieved whatever goal he wanted to achieve.

[210]     Dr. Neilson explained that the reason for the difference between her psychopathy score of Mr. Martin at 30, and that of his earlier score of 28.4, may be the eight or ten years of behavior that had to be considered.

[211]     She agreed with Mr. Atherton that Mr. Martin could have been laid off at Saint Mary’s University, but she thought he left to pursue other employment, as suggested in a parole report.

[212]     Dr. Neilson also agreed that had Mr. Martin worked as a pizza cook as opposed to a driver, he would not have put himself at risk.

[213]     It was suggested to Dr. Neilson that while Mr. Martin was living in the half-way house for two years, he was a manageable risk in the community. She agreed, with close supervision and management, but pointed out that he did experience some difficulties, as she outlined earlier in her testimony. She added, he used substances on two occasions, one alcohol, one marijuana, and was resistant to attending programs that had been recommended to him and those kinds of things. Otherwise, she added, during that two year period while under supervision within CCC, he managed.

[214]     Dr. Neilson stated that at 48 years of age, Mr. Martin is getting into the age of burnout, but added, for sexual offenders, burnout occurs at different age depending on the type of sexual offender. She added, for rapist, a clinical term, not legal, which means a person who sexually assaults adult women as opposed to a child molester, have sort of a steady decline in risk throughout their life right through to their 50’s, 60’s and 70’s. But beyond 50 and 60, their rate is uniformly low. She added that is not necessarily the case for other types of sexual offenders whose rate remains high until their early or mid-50s.

[215]     Dr. Neilson testified that generally at around age 25, one starts to see a person’s general aggression diminish, however, in Mr. Martin’s case, in his 40s he has persisted with aggressive and sexually aggressive activities.

[216]     She made it clear that she does not want to minimize the seriousness of the offence of sexual assault by comparing the severity of different cases, such as the M.L. and A.M.C. cases.

[217]     Dr. Neilson testified that it is possible that Mr. Martin would continue to be managed in a community setting, but added that the difficulty with Mr. Martin’s management when he was at the Carleton Centre was that he resisted certain bits of advice that could have kept him from offence-free when he moved into the community. She added that things like being resistant to getting rid of the pornography, and resisting his attendance with Ruth Simmons. She concluded by stating that while Mr. Martin superficially complied with everything that was required of him, he had a passive-aggressive approach towards his supervision in which, if he could get away with things, he would.

[218]     In the event that Mr. Martin returned to the federal system, Dr. Neilson commented that Mr. Martin’s case management team would decide where and what programming he requires. But she added that he would need to attend more programming with regard to his propensity to inflict violence sexually, so another sexual-offender program and anger and emotions management. She commented that those needs, those criminogenic needs and the requirement for programming are decided by CSC.

Discussion and Analysis

[219]     Although, as earlier mentioned, the defence did not contest the conclusion that the Crown has proven on the totality of the evidence that Mr. Martin is a dangerous offender, it is critically important for the Court to reach that conclusion on a principle basis after having considered the relevant statutory provisions and all of the evidence. Put differently, I must be satisfied that the Crown proved beyond a reasonable doubt that Mr. Martin has been convicted of a serious personal injury offence as defined in s. 752; and that he meets one or more of the four definitions of a dangerous offender. If the Court determines the conditions precedent have been met, and that Mr. Martin fits within one or more of the definitions, then the Court must decide if an indeterminate sentence is appropriate or if a lesser penalty will adequately protect the public.

Whether the Dangerous Offender Criteria under – s. 753(1)(a) are satisfied

[220]     There is no issue that Mr. Martin has been convicted of a serious personal injury offence under either s. 752(a) or s. 752(b). The predicate offences in this case are serious indictable offences. Sexual assault imposes a maximum punishment for a term not exceeding 10 years of imprisonment, and s. 246, the offence of attempt, by any means, to choke, suffocate or strangle another person, contrary to s. 246 of the Criminal Code, imposes a maximum punishment of life imprisonment. A serious personal injury offence include offences involving the use or attempted use of violence for which the offender may be sentenced to imprisonment for at least 10 years. Clearly, the predicate offences satisfies the violence requirement under s. 752(a)(i).

[221]     Under s. 752(b), whenever a person has been convicted of an offence or even an attempt to commit an offence under s. 271 (sexual assault) this qualifies, by definition, as a serious personal injury offence. No additional factors are to be placed on the scale in evaluating whether the offence is a serious personal injury offence. The offence of sexual assault is by definition a serious personal injury offence. This is consistent with the view that that all sexual offences are, by their very nature, inherently serious. As explained by Lamer, C.J.C. in Currie, at 274:

Parliament has said that there are certain types of offences, which are inherently serious, that can trigger a dangerous offender application.... [S]exual assault, whatever form it may take, is one of them. Other offences, presumably less threatening to the personal safety of others, do not trigger s. 753

[222]     The Crown relies on sub-sections 753(1)(a)(i), and (ii) as well as s. 753(1)(b) to establish that Mr. Martin is a dangerous offender. Both subsections (a)(i) and (ii) require the Crown to establish that Mr. Martin constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing a pattern of behavior of which the predicate offence forms part, as discussed earlier in these reasons.

[223]     With respect to the predicate offences there is no doubt that that they are part of a pattern of repetitive behavior that has involved violent and persistently aggressive sexual conduct. I find beyond a reasonable doubt that Mr. Martin’s criminal history; in particular his record of violence, which includes sexual assaults, clearly establishes a pattern of repetitive behavior that shows a failure on his part to restrain his behavior. It also establishes a pattern of persistent aggressive behavior showing a degree of indifference on his part respecting the consequences of his behavior on others. I agree with Dr. Neilson’s opinion that Mr. Martin’s conduct in committing the predicate offences showed serious impairment in his ability to control his violent and sexually violent urges based on his intentional failure to refrain from risk-related behavior and his failure to desist from violent and sexually violent behavior. Mr. Martin’s conduct in committing the predicate offences, coupled with his criminal history of violence, particularly sexual violence against vulnerable people, clearly establishes a pattern of persistent aggressive behavior showing a substantial degree of alarming indifference toward the consequences of his behavior on others. His lack of empathy and awareness of the impact of his actions support my conclusion as to the substantial degree of Mr. Martin’s indifference. Furthermore, I am satisfied that the evidence overwhelmingly establishes a failure on the part of Mr. Martin to control his sexual impulses. As evidence by his history of committing serious violent offences, including the predicate offences and past sexual offences, Mr. Martin has repeatedly demonstrated a failure to resist aggressive impulses, resulting in violent and sexually violent acts. This conduct seems consistent with the undisputed evidence of Dr. Neilson that Mr. Martin has evidenced a variety of traits associated with psychopathy, has anti-social personality, and is possibly a sexual sadist.  All of which leads me to the inescapable conclusion that there is a high risk of reoffending and a likelihood of causing injury to others or to inflicting psychological damage through his inability to control his behavior and his sexual impulses, as he has done in the past.

[224]     The circumstances of the predicate offences and the other violent offences, including the sexual assault offences, for which Mr. Martin has been convicted, demonstrate a pattern of repetitive violent behavior. While there are some differences between the offences in terms of the degree of violence, there are common elements within the pattern, which include the following:

a)     the victim is a vulnerable female;

b)    the victim is familiar with Mr. Martin; such as, a relative, friend, partner or an acquaintance;

c)     Mr. Martin’s need to exercise power, control and dominance over the victim by the use of violent force, including assaultive and/or threatening behavior;

d)    Mr. Martin’s sudden explosive and inexplicable violence towards the victim to enforce sexual impulses or desire without concern of the victim;

e)     Mr. Martin’s failure to restrain his sexual impulses;

f)      Mr. Martin’s failure to restrain his violent behavior;

g)     Mr. Martin’s lack of empathy towards the victim;

h)     Mr. Martin’s deviant aggressive sexual behavior;

i)       Mr. Martin’s need to confine, restrict or overpower the victim;

j)       Mr. Martin’s is sober; and

k)     The victim’s attempt or efforts to escape.

[225]     These common elements are exemplified in surrounding circumstances of the sexual offences against A.M.C., M.L., and Ms. M., which may have been more opportunistic than predatory, but that does not diminish the seriousness. As Dr. Neilson stated, in her report, Exhibit 16, at 42-43:

Mr.Martin’s violent behavior is highly diverse/versatile/multifaceted. It takes varying forms: general violence toward persons and property, sexual violence, and domestic partner violence.

Mr. Martin’s typical sexual offence victim has been a non-stranger female, but the age of his victims and the nature of his relationship to them has varied (e.g. a 14 year old niece; his wife; wife/partner of brother who became his partner) and suggests an opportunistic pattern of victim choice.

The circumstances of the violence have varied. Some appears to have been instrumental violence (calculated/premeditated) whereas some instances appear more reactive (emotion driven).

The intrusiveness/degree of the violence has also varied. Some violence has been less severe/intrusive than others (on the spectrum of violent behavior) while other violent behaviour has been very intrusive, prolonged, severe, and has likely led to significant physical and psychological sequelae to the victims involved.

The motivations appear diverse, with suggestions of sadistic elements, (some of his sexually violent offenses have involved gratuitous violence, power/control/domination, humiliation/degradation, choking/asphyxiation, and abduction/confinement) appearing relevant in some, and his difficulty coping with stress and anger appearing to have played a contributory role in others.

[226]     With respect to A.M.C., Mr. Martin seized the opportunity to exercise power, control and dominance over her while they were alone in the apartment; while she was vulnerable. Mr. Martin was unable to restrain his behavior as he repeatedly assaulted and threatened A.M.C. because she would not comply with his demands. He became persistently aggressive while showing a substantial degree of indifference toward her physical and psychological well-being, as he choked her and held her against her will. While he restrained her, by choking and threatening her, he lifted her shirt and kissed her stomach. This behavior clearly shows a complete failure on his part to control or restrain his sexual impulses. Further repeated assaultive behavior against A.M.C. continued after she tried to escape from the apartment. Mr. Martin chased her, grabbed her by the hair and banged her head against the wall, without any concern for her well-being.

[227]     Similarly, with respect to the other sexual assault offences involving Ms. M., and M.L., the offences were opportunistic rather than predatory, as Mr. Martin frequently and consistently exploited his partners’ vulnerability when he felt the urge. Mr. Martin’s actions demonstrated a pattern of repetitive behavior that had involved violent and persistent aggressive conduct towards his partners. Both instances strongly demonstrate the common elements that Mr. Martin was unable to control his sexual impulses, as he repeatedly sexually assaulted both women. His persistent aggressive pattern of repeatedly sexually assaulting, and assaulting Ms. M. and M.L. shows a failure on his part to restrain his behavior, as well as a substantial degree of alarming indifference on his part respecting the reasonable foreseeable consequences to others. In each case, Mr. Martin completely failed to control his sexual impulses.

[228]     In both cases, Mr. Martin tied up the victims, repeatedly assaulted and sexually assaulted them, threatened to kill them, he burned them, and the assaults were over a prolonged period of time. Ms. M. was also threatened to be fed to the coyotes. She escaped when the police arrived. 

[229]     With respect to H.M., he repeatedly assaulted her over a prolonged period of time, he tied her up, and gagged her, and threatened to tie her to a tree so that the coyotes could eat her, and H.M. escaped. 

[230]     As a result of these offences, Mr. Martin’s victims sustained serious physical and/or psychological harm.

[231]     As Dr. Neilson reported at p. 49 of her report, Exhibit 16:

From a clinical standpoint, Mr. Martin has demonstrated a diverse and persistent pattern of violent and sexually behaviour that started in early adolescence and has continued through to the present.

His victims have typically been females with whom he is related (e.g. wife, former common-law partners of brothers, 14-year-old niece), but he has also had acquaintance victims (e.g. elderly man; two week postpartum female friend; current victim). Victims have ranged from the very young to the very old, but all have in some way been vulnerable, physically, emotionally or psychologically. The range of violence has been equally broad with less severe physical assaults through to highly intrusive, prolonged sexual assaults. Some incidents appear to have been reactive (impulsive/emotion-driven); others appeared more calculated (planned). In some cases, alcohol was a contributing factor; in others it was not.

Overall, Mr. Martin’s violence appears to be directly or indirectly related to control issues:

⋅           his need to manipulate/control others who he causes to feel vulnerable;

⋅           his need to demonstrate superiority over others who cause him to feel vulnerable

⋅           inadvertent revelation of his dearth of emotional self-control or sexual self-regulation

As such, his expected future pattern of violent behaviour is one that would involve physical or sexual aggression and either calculated planning or impulsive behavioural dyscontrol, (or more typically a combination of both). It would be directed at victims who are vulnerable or with whom he feels vulnerable (hence intimate female relationships are at particularly high risk, as well as female children). The risk of such behaviour seems to markedly escalate in situations in which he is subject to unmanageable life stress, when he experiences negative emotions (rejection, humiliation, shame), when he incurs relationship stress, engages in substance abuse, experiences sexual frustration, or reverts to a criminal lifestyle.

In terms of imminence, Mr. Martin has seldom had periods in the community in which he has remained offence free, with or without supervision. During his most recent period of residential community supervision, he did not re-offend until the (highly structured/externally controlled) residential supervision condition was lifted, although he engaged in high risk-related behaviour prior to that time. Thus it is reasonable to conclude that in future, absent similar highly structured external controls, his risk of re-offence would be reasonably imminent.

The issues of potential victim groups, imminence, circumstances, frequency and severity are well established and remain live with respect to Mr. Martin’s offending behavior.

[232]     Dr. Neilson further explained her opinion in her evidence wherein she pointed that Mr. Martin failed to restrain his behavior in the circumstances of the predicate offences, as there were numerous opportunities for him to have stopped his behavior before he actually sexually assaulted A.M.C.. She stressed that Mr. Martin could have exercised restraint had he been reading the signs correctly.

Conclusion

[233]     Having been satisfied based on the evidence tendered that the Crown has established beyond a reasonable doubt that Mr. Martin constitutes a threat to the life, safety, physical or mental well-being of other persons in accordance with s. 753(1)(a)(i), (ii), and s. 753(1)(b) of the Criminal Code, I must now proceed to the sentencing stage of the proceeding to determine whether there is a reasonable expectation that a sentence less severe than an indeterminate sentence will adequately protect the public.

[234]     Section. 753(4.1) mandates that I impose a sentence of detention in the penitentiary for an indeterminate period unless I am satisfied, by the evidence adduced during the hearing of the application, that there is a reasonable expectation that a lesser measure under sections 753(4)(b) or (c) will adequately protect the public against the commission of murder or a serious personal injury offence by Mr. Martin.

[235]     Section 753(4.1) asks the court to consider whether there is a reasonable expectation that a lesser measure than an indeterminate sentence will adequately protect the public against the commission by Mr. Martin of a serious personal injury offence.

Sentence:

Is there is a reasonable expectation that a sentence less severe than an indeterminate sentence will adequately protect the public.

[236]     As previously mentioned, between 1997 and 2008, the court retained a residual discretion to not declare an accused to be a dangerous offender even if they met the criteria under s. 753(1).

[237]     Typically, this discretion was exercised in favour of the accused if the Court was satisfied there was “a reasonable possibility of eventual control of the risk in the community”.

[238]      The amendments in 2008 removed the court’s discretion under s. 753(1) and moved it to s. 753(4)(4.1), which provides:

(4) If the court finds an offender to be a dangerous offender, it shall

(a) impose a sentence of detention in a penitentiary for an indeterminate period;

(b) impose a sentence for the offence for which the offender has been convicted — which must be a minimum punishment of imprisonment for a term of two years — and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or

(c) impose a sentence for the offence for which the offender has been convicted.

(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.                (emphasis added)

[239]     The Ontario Court of Appeal explained the structure of the new legislation in R. v. Szostak, 2014 ONCA 15, at paras. 53 to 54:

Thus, the legislation contemplates that a person could be declared a dangerous offender because they meet the definition but nevertheless be given a disposition including a long-term supervision order or a conventional sentence. However, these two options are only available if an indeterminate sentence is not required to protect the public from the commission of murder or a serious personal injury offence. If a person, to be declared a dangerous offender, had to not only meet the statutory definition but display a pattern of conduct that was pathologically intractable, that person could, it seems to me, rarely, if ever, be eligible for a long-term supervision order or a conventional sentence.

Further, while I agree that the legislation must be interpreted in the spirit of Lyons and bearing in mind the sentencing principles and objectives in ss. 718, 718.1 and 718.2, it is apparent that Parliament intended a broader group of offenders be declared dangerous offenders than was envisaged in Lyons where the court spoke of "a very small group of offenders". While the legislation is still narrowly targeted to a small group of offenders, that Parliament intended to broaden the group of persons to be labelled as dangerous offenders is apparent from the legislative reversal of the principle in Johnson referred to earlier that no sentencing objective is advanced by declaring an offender dangerous and imposing a determinate sentence.

[240]     In R. v. Warawa, 2011 ABCA 294, Rowbotham J.A., at para. 40 observed:

The 2008 Amendments create a high degree of rigidity in sentencing. Parliament has clearly placed the protection of the public ahead of any other sentencing principle and has greatly circumscribed judicial discretion. However, in my view, the surrounding context of the statements by Parliament of the fundamental principles of sentencing found in sections 718, 718.1 and 718.2 may be relevant even at the stage of determining whether to impose an indeterminate sentence. The circumstances of an aboriginal offender were considered in assessing whether a lesser measure would adequately protect the public in R. v. Kudlak, 2011 NWTSC 29 (N.W.T. S.C.) at para 106, [2011] N.W.T.J. No. 37 (N.W.T. S.C.).

[241]     In R. v. Racher, 2011 BCSC 1313, Joyce J., at para. 46 concluded reasonable expectation was a higher standard than reasonable possibility:

Under the current scheme, the exercise of discretion has moved to the stage of imposition of sentence rather than being at the stage of determining whether the offender should be declared a dangerous offender. However, under s. 753(4.1) the test for the exercise of the discretion is no longer a reasonable possibility of control. The Court must impose an indeterminate sentence unless it is satisfied that there is a reasonable expectation that a less severe sentence will adequately protect the public. I am satisfied that the change of language in the dangerous offender provisions was intentional and that it imposes a different and higher standard than was previously the case.

[242]     Similarly, Mills J., in R. v. D (C.J.), 2012 SKQB, at paras 5-8, wrote:

That is not to say that cases prior to July 2, 2008 are appropriately applied on a conceptual basis. Section 753(4.1) imposes a different test on the court.

The previous concept was "is there a reasonable possibility of eventual control of the risk in the community." In R. v. Goforth, 2007 SKCA 144, 302 Sask. R. 265, our Court of Appeal stated that the possibility of eventual control in the community is not equated with hope or empty conjecture and must recognize the mere possibility that the offender might benefit from treatment is not sufficient to warrant a conclusion that there is a reasonable possibility of eventual control. The new test is whether "there is a reasonable expectation that a lesser measure under paragraph 4(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence."

If Parliament intended that the same test was to be applied, presumably it would have used the same language. The change in the language must have some meaning and therefore changed the conceptual approach in the process provided. The wording has changed from a reasonable possibility to a reasonable expectation. To me this suggests that the bar has now been set higher. Parliament is no longer concerned with possibilities but rather expectations. The court had previously interpreted "possibility" with meaning something more than mere hope, which of course eliminated the concept that anything is possible. The concept of a possibility greater than a mere hope or empty conjecture does not equate with an expectation that something will occur or not occur. The court is still faced with the notion of predicting the future and expectation of a result is on a higher continuum than a possibility of a result.

[243]     And later, in paras. 12 to 13, Mills J., stated:

The concept of eventual control has been replaced by the concept of adequate protection of the public. I do not equate the words "adequately protect the public" as a virtual guarantee that the offender would not commit in the future an offence described. The use of the words "satisfied", "reasonable expectation" and "adequately protect the public" all suggest that Parliament has not mandated a notion of absolute safety to the public in this sentencing consideration. The words "adequately protect the public" found in ss. (4.1) appear to come from that concept as identified in R. v. Johnson, supra, at para. 44 and was used in the context that the sentencing judge could consider that a determinate sentence followed by a period of supervision in the community could achieve the goal of adequate public protection.

Obviously, the concept of reasonable expectation of adequate protection must be offender specific. Any general comparisons will have to wait until more cases have been decided and guidance is received from the Court of Appeal.

Reasonable Expectation - Burden of Proof

[244]     From a review of the authorities there seems to be some debate whether the Crown or defence bears any onus at this stage in the proceedings. Under the current legislative regime, evidence of treatability and manageability will be used to inform the ultimate sentence imposed following a finding of dangerousness. Section 753(4)(4.1), seems to place a burden of proof on the offender, something acknowledged in R. v. Kudlak, 2011 NWTSC 29, where Vertes J. observed that the provisions may require the offender to disprove the appropriateness of an indefinite sentence. He wrote, at paras. 81 to 83:

With these amendments, there is no longer a requirement to consider the long-term offender provisions as an initial step. But, in effect, the same practical approach, as in Johnson, still has to be followed because of the sentencing options set out in the new ss. (4). Sub-clause (4)(b), for example, replicates the sentencing provision for a long-term offender found in s. 753.1(3).

Defence counsel described the new ss. (4.1) as imposing a burden of proof on the defence. I would not describe it as such although I recognize that in practice it may indeed impose an evidentiary burden on the defence. The reason I do not think there is a reversal of the burden of proof is because of the case law that interpreted the long-term offender provisions.

Subsection 753.1(1)(c) states that the court may find an offender to be a long-term offender if it is "satisfied" that "there is a reasonable possibility of eventual control of the risk in the community". Subsection 753(4.1) states that the court shall impose an indeterminate sentence upon declaring an offender dangerous unless it is "satisfied" that "there is a reasonable expectation that a lesser measure ... will adequately protect the public ... ". Leaving aside the distinction between "possibility" and "expectation", the "proof" requirement is the same in both: the court must be "satisfied".

[245]     Later in the judgment, at para. 85 he concludes:

[T]he sentencing judge must be satisfied that either a determinate sentence or a sentence with a long-term supervision order will adequately protect the public. To be so satisfied, the judge must take into consideration all of the evidence no matter who adduces it. If the judge is not satisfied, then he or she must impose an indeterminate sentence.

[246]     I agree with Justice Verte’s comments that the judge must take into consideration “all of the evidence no matter who adduces it”. If the judge is not satisfied, then he or she must impose an indeterminate sentence.

[247]     To be clear, there is no burden upon the defence, Mr. Martin, to establish that there is a reasonable expectation that a lesser measure under s.753(4) will adequately protect the public. Rather, in my view, the Court must thoroughly consider all of the evidence no matter who adduces it and determined whether there is a reasonable expectation that a lesser measure under s.753(4) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

Analysis

[248]     In considering the issue of whether there is reasonable expectation that a lesser measure under s.753(4) will adequately protect the public against the commission by Mr. Martin of a serious personal injury offence, the court must thoroughly consider all of the evidence relating to Mr. Martin, including his psychiatric condition, his past behavior, his attitude, his amenability to treatment and supervision (controllability); and the expert opinion evidence and risk assessment. 

Psychiatric Condition

[249]     In this case, I accept and agree with Dr. Neilson’s conclusion that Mr. Martin, is at a high risk of re-offending, both violently and sexually, for the reasons already discussed. He has been diagnosed traits of psychopathy and with antisocial personality disorder, and is possibly a sexual sadist. He has offended both violently and sexually in the past. His violence and lack of control have led to the commission of very serious violent offences, which has caused severe psychological trauma to his victims. Indeed, the predicate offences were committed while he was under the supervision of a Long-Term Supervision Order.

[250]     I found the undisputed evidence of Dr. Neilson of particular assistance in respect to Mr. Martin’s risk of re-offending. At p. 35 of Exhibit 16, Dr. Neilson, reported, that Mr. Martin evidenced a variety of traits with psychopathy. In particular, he evidenced the following traits to a large degree: pathological lying; conning/manipulative; callous/lack of empathy; promiscuous sexual behavior; early behavior problems; impulsivity; failure to accept responsibility for his own actions; many short term marital relationships; juvenile delinquency; revocation of conditional release; and criminal versatility.

[251]     While Mr. Martin has been diagnosed at the cut off for a prototypical psychopath, it seems clear from the evidence that he manifests psychopathic traits. Mr. Martin’s raw score was 30, which places his at the 84^th percentile, meaning that 16% of male offenders would score higher, or demonstrate more psychopathic traits than Mr. Martin. 

[252]     Although some aspects of psychopathy may dissipate with age, there is no treatment per se for it.

[253]     As Dr. Neilson pointed out that the reason psychopathy is important because people with these characteristics are quite “good offenders”. The fact that they have done things repeatedly through their life behaviorally indicates that they are likely going to do that in the future. She opined that it is a good indicator of risk of future violence. The higher the psychopathy score, the more likely the offender is going to continue to engage in that kind of behavior throughout the rest of their life because it has been such a pattern for them during their life.

[254]     Mr. Martin continues to demonstrate quite a few of the characteristics of psychopathy that he appeared to demonstrate from a very early age, his dishonesty, failure to accept responsibility for his actions, the deceitfulness, and lack of empathy. It is the Factor 1 components that would impede him.

[255]     As Dr. Neilson pointed out, his propensity to engage in criminal activity may diminish over time, but it’s the interpersonal and the emotional components that make it hard to work with therapeutically.

[256]     She also opined that Mr. Martin has not shown any evidence of burning out, or reducing acting out. She stated that Mr. Martin seems to have quite a life-course, persistent incidence of violence and sexual violence that started at an early age and continues. She indicated that usually burn-out doesn’t occur until 50’s or 60’s, that is the rate at which one can expect to start seeing a reduction.

[257]     With respect to supervision problems, Dr. Neilson’s observations are entirely consistent with the evidence; that is, Mr. Martin has shown a willingness to continue to be deceitful and dishonest with supervisors and to omit to report risky situations, as evidence by his behavior while serving his Long-Term Supervision Order. 

Mr. Martin’s Behaviour

[258]     As this court as stated on numerous occasions, there is no better predictor of future behaviour than past behavior. Dr. Neilson repeated exactly that in her testimony when stated that one of the strongest predictors of future behavior is past behavior and certainly for someone who has engaged in a lot of anti-social behavior during his lifetime, they are likely to engage in that kind of behavior in the future.

[259]     It is not my intention to repeat everything that has already been said about Mr. Martin’s history of bad behavior; other than, that it must be stressed that he is at a high-risk of re-offending, both violently and sexually. He has offended both violently and sexually in the past. His violence and lack of control have led to the infliction of physical injuries and severe psychological trauma to his victims.

[260]     It is of real concern that Mr. Martin has for most of his life generally denied minimized, justified or displaced blame onto others, as exemplified in Dr. Neilson’s report, Exhibit 16, Appendix B, where she has summarized Mr. Martin’s versions of what occurred in respect to the offences for which he pleaded guilty.

[261]     Dr. Neilson’s observation should be repeated here. She reported:

Mr. Martin generally denied, minimized, justified, or displaced blame onto others. His level of remorse and victim empathy was low, non-spontaneous, and superficial. For example, when asked about which offense was the most serious, he indicated that the 2000 offense was because that was when he realized he had a serious problem (not because of the serious physical and psychological damage done to the victim, or the damage done to the relationship with his half-brother, or any extended family members). Although Mr. Martin expressed motivation for rehabilitation, it appeared to be predominantly related to successfully progressing through the current proceedings rather than due to a personal commitment to stop offending. This is exemplified by his refusal to cooperate with the PPG testing. His level of insight into his degree of dangerousness appeared poor: he does not perceive himself to be a ‘sex offender’ and therefore consistently underestimates the risk he poses to others.

[262]     As Dr. Neilson explained, this kind of behavior is consistent with characteristics of psychopathy that appeared to arise from a very early age, wherein Mr. Martin failed to accept responsibility for his actions was deceitful and lack empathy.

[263]     As previously stated, this is of real concern because Mr. Martin has shown a willingness to continue to be deceitful and dishonest with his parole supervisors.

In Dr. Neilson’s report, Exhibit 16, an accurate summary or review of Mr. Martin’s institutional behavior is set out at pages 25 to 29, which should be highlighted. She reported:

a) Behaviour/discipline.

According to the information that was made available to me, overall Mr. Martin demonstrated little regard for institutional rules but very low levels of behavioural dyscontrol (i.e. verbal threats/property damage) and, it would appear, no physical altercations or assaults during his incarcerations. This indicates that in a supervised setting he is able to conform his behaviour to expected norms.

Examples from his CSC Discipline File include infractions such as: property damage (e.g. prying out a range window with a metal pipe); defiance of institutional rules (e.g. refusing to stand for count, smoking in room, wearing non-institutional clothing, purposefully setting off fire alarm in order to be released from cell; covering door window, moving within the institution without proper authorization, refusal of urinalysis, positive urinalysis); possession of contraband in room (e.g. tattoo ink, blender/frying pan, large quantities of cash); disrespect towards female staff (e.g. An Inmate Offence Report notes “Inmate [Mr. Martin] stated in French: I would like to fuck you” J. Langille Oct 22, 1985 Crown File 808); items found in room that did not belong to Mr. Martin (e.g. TV, CDs, food, watch).

An Inmate Offence Report remarks “This inmate does not care about institutional rules.” 1998/01/09 Daniel Leblanc, [Crown file pg. 779].

Mr. Martin sometimes requested to be placed in Administrative Segregation for his own safety (due to the nature of his offences, and/or due to “incompatibles”) and occasionally he has been placed in Administrative Segregation for discipline purposes.

Mr. Martin was strongly suspected of being a Hells Angel Associate throughout his incarcerations. During a prior incarceration, Mr. Martin was regularly monitored by institutional staff and was thought to have been actively involved in the institutional drug trade, but was not thought to be a “major figure”. (Correctional Plan 2000/06/05). This was from confidential source information, as well as staff’s own observations.

Of note, Mr. Martin reported that he escaped custody on two occasions as a young offender; he escaped lawful custody in 1985 by leaving a halfway house without consent while on day parole. He walked away from the minimum-security federal institution (Westmoreland) in 1990.

b) Rehabilitation Program attendance/performance.

During his various incarcerations, Mr. Martin participated in programming aimed at reducing his sexual aggression and overall propensity to violence, and his substance abuse issues.   While he participated in the required programming, his gains (as measured by performance measures, his subsequent community maintenance program performance, and re-offence behaviours) seem to have been limited.

⋅           Mr. Martin attended a Life Skills Program in 1985.

⋅           Mr. Martin reported that he has attended numerous Anger and Emotions Management Programs in the past but this was not fully confirmed by the record. The CSC file indicated that he attended Anger Management in 1998 after being denied statutory release. The Progress Summary dated 1998/07/28 J.R. LeBlanc [Crown File pg. 14] indicates that “His [Mr. Martin’s] participation in Anger Management appears to be an exercise in window dressing”. His program score was noted to be 2.7 with Case Management acknowledging some improvements in his overall institutional behaviour and attitude.

⋅           Mr. Martin refused to participate in Violent Offender Programming at Dorchester Institution in Jan 1997, indicating that he wanted it in French, but when it was offered in French at another institution, he refused that also [Crown file pg. 21] He attended it later, however.

⋅           The 2002/05/15 Sex Offender Assessment Report prepared by Mary Ann Campbell indicated “During his last incarceration, Mr. Martin successfully completed the ALTO (substance-abuse) program (1996/08/01), Cognitive Living Skills (1997/04/14), Living Without Violence (1997/06/09) and Anger and Emotions Management (1998/10/05). The final progress reports from these programs generally describe Mr. Martin’s participation as positive. He was described as making progress in developing insight into his behavior and in learning more effective methods of coping with his problems, but program facilitators noted that he still had progress to make regarding his emotional expression/management and in developing conflict resolution/problem solving skills.”

⋅           Mr. Martin participated in the High Intensity Sex Offender Program at the Shepody Healing Center at Dorchester penitentiary in 2003. The 15 page report, authored by Jean Marc Vienneau outlines his program participation and treatment Progress. It is difficult to adequately summarize that report. Overall, it notes motivational difficulties, poor self-awareness, resistance to change, and progress mitigated by his ongoing denial of being a sex offender. It noted that Mr. Martin accepted some responsibility to change and improve himself, but had a tendency to externalize blame for his lack of progress, and tended to rely more on external barriers, rather than internal controls to prevent sexual reoffending. The areas of concern related to sexual compulsivity, criminal personality, use of cognitive distortions to neutralize offence behavior, poor emotional control and use of interpersonal aggression, lack of insight into his sexual offending cycle, inadequate community supports and poor compliance with supervision, and poorly formed release plans. The treatment team worked to address these areas of need. Their conclusion was Mr. Martin’s participation in the current program could be described as fair. It was observed that he made some gains in identifying and re/hquishing a few distorted thinking patterns that supported his offenses, identifying and relinquishing the use of aggression and intimidation, as well as identifying emotional states linked to offending and developing an appropriate self-management plan. Mr. Martin has also made some gains in complying with the Sex Offender Treatment Program and in identifying potential high-risk situations as well as developing a series of strategies in order to avoid these situations. Mr. Martin’s risk of sexual recidivism was estimated as being HIGH prior to his commencing the High-intensity Sex Offender Treatment Program at the Shepody Healing Center. Considering the sum of all static and dynamic factors, the progress he made in better understanding his sexual offending dynamics, and the self-management plan he developed, it is estimated that Mr. Martin’s risk of sexually related recidivism to be in the HIGHER end of MODERATE range.”

⋅           Following a NPB detention review decision in his case, Mr. Martin participated in the High-Intensity Family Violence Prevention Program between July 2005 and December 2005, facilitated by G, Dyck and C. Goudreau. This is a program that is designed to assist participants in developing insight into the factors that led to their domestic violence, and assist them to develop relationship skills, thinking skills, and emotion management skills to promote healthy relationships. It helps participants accept responsibility for their abusive and violent behavior within relationships and challenges the abusive attitudes and beliefs that perpetuate violence in the family. The report of Mr. Graeme Dyck is lengthy (11 pages). Overall, it notes the following: Mr. Martin’s attendance was average. Mr. Martin was reported to be able to recognize the range of past abusive behaviors, but tended to continue to justify his beliefs and behaviors rather than to examine and address them. He appeared to have difficulty understanding the impact of his violence on others. Nevertheless, he completed a relapse prevention plan that suggested that he possessed practical insight into his lifestyle factors, cycles of abuse, high-risk situations, and coping skills necessary to remain offence-free.

⋅           Mr. Martin completed the National Family Violence Maintenance Program out of Dorchester Penitentiary between March 2006 and October 2006. This is a program designed to consolidate the learning gained from the High Intensity Family Violence Program. A progress report completed by the same facilitator (Mr. Graeme Dyck) indicated that at times Mr. Martin sought opportunities to be absent from the program. This issue was addressed with him and his attendance improved. His participation in group was described as average. On a few occasions he became quite defensive and angry. He came easy frustrated with other participants. As the program progressed, he made some improvements. Mr. Martin’s level of functioning improved in several areas such as: his childhood issues; emotional expression; the extent of his abusive behavior; thinking errors; and relaxation skills. He was also able to complete a realistic relapse prevention plan including his main risk factors. He is reported to have demonstrated appropriate insight and self-awareness on a variety of issues by the end of the program. It was the opinion of the facilitator that Mr. Martin usually accepted responsibility for his behavior and did not frequently justify or rationalize his behavior. According to the facilitators of the program he made some important gains and met many goals expected of the participants. At the end of the program it was thought that Mr. Martin’s greatest challenge in the future would be to stop his impulse to be aggressive as a means of sparing his pride. Another area of significant work was thought to be his progress in understanding the impact of his behaviors on others. Despite the progress made, the facilitators opined that there remained considerable room for improvement in certain areas such as justifications of beliefs, behaviors, and criminal thinking.

⋅           Mr. Martin completed the Family Violence Community Maintenance Program out of the Halifax Parole Office between March 2007 and May 2008 with Psychologist Ruth Simmons. Mr. Martin attended 14 individual monthly maintenance sessions. That report notes therapeutic gains in some areas, while not in others. For example, he is thought to have improved in his ability to adopt a more pro-social lifestyle and better manage his emotions, all the while remaining ingrained in a victim stance (blaming others for his circumstances), adhering to male privilege attitudes, and a sense of entitlement.

⋅           The Final Psychological Report completed by Ruth Simmons (CSC Psychologist, Halifax Parole Office) dated March 22, 2010 indicated that while in the community on his Long-Term Supervision Order Mr. Martin attended for individual psychological counseling to try to try to maintain or build on treatment gains made in the institutional Sexual Offender Programming, and to address areas of individual psychological need. That report is lengthy (five pages) but the summary notes, “While some progress was noted in the individual sessions that occurred, James’ rigid thinking and tendency to cast blame on others for his behavior ultimately interfered with his ability to fully engage in the honest self reflection that is necessary to truly benefit from psychological intervention. Despite this, James appeared sincere in his stated desire to avoid violent sexual reoffending and continued to appear motivated to develop a pro-social lifestyle of work and leisure.  In addition, he did appear to have gained increased insights into his dynamic risk factors from the time of his Psychological Specialize Assessment (2002/05/23). His antisocial and relationship specific attitudes were well ingrained and although he demonstrated some progress in modifying offense related thinking patterns, emotionally charged situations made the use of new skills challenging. Although the details of his current charges are not entirely clear to this writer, it would appear that James may have seriously overestimated his ability to act skillfully to avoid reoffending in the context of romantic/sexual relationship.”

c) Community supervision.

Mr. Martin does not have a good record in terms of Community Supervision. Mr. Martin has violated day and full parole in the past, and violated mandatory supervision in 1986. He successfully completed statutory release on one occasion. He has a tendency to re-offend a few months following his release into the community (for example the 2000 offense occurred about six months after his release from secure custody on WED; the current offense occurred approximately six months after his release from the Community Correctional Centre, 2.5 years after his release from secure custody on WED).

He has had prior convictions for failing to comply with a recognizance. Mr. Martin has repeatedly contacted the past victims of his offences while under order not to do so. For example, Mr. Martin contacted the home of the victim of his 2000 offences by telephone in June 2000 during his incarceration for this offence, despite a Court imposed prohibition. He explained this behaviour at the time by saying he was trying to talk to his brother. [Crown file pg. 636]. Other similar incidents are noted in the institutional file.

File reports indicate that there have been times when he has complied with the parole supervision system (i.e. when he otherwise had lifestyle stability living with Ms. Guimond) but even during these times, he engaged in illegal activities (poaching lobster/selling drugs) unbeknownst to his parole supervisor.

During his most recent release and, prior to the residency condition being lifted by the National Parole Board, Mr. Martin had been residing at the Carlton Community Correctional Center for over a two-year period. He did not re-offend during that time. However, difficulties with supervision were noted in his file e.g. challenging the authority of his P0 supervisors, asserting that he had served his time to WED and that he had consented to the LTSO designation so did not have to follow the usual parole stipulations; possession of pornography; failing to fully disclose the nature of his relationships; positive THC tests, admission to alcohol use).

Nevertheless, his Parole Supervisor, Maureen Brown did note positive overall progress during his residency period in her “Assessment for Decision” report dated 2008/03/03 “The National Parole Board and previous Parole Officers have had many concerns regarding Mr. Martin’s ability to internalize program skills and use them in every day life. Writer would like to reiterate that Mr. Martin has made progress during the last five months. He explored his relapse prevention plan and has developed new high-risk situations and coping strategies. He has developed more insight into his offense cycle. There were concerns revolving around his employment given that prior to securing his job at St. Mary’s University Mr. Martin’s employment status can be characterized as unstable. Now he works full-time and seems to be enjoying his job. Overall there has been progress.”

However, after leaving the supervised residential setting, he violated the terms of his Long-Term Supervision Order and incurred further criminal charges (the index) in a relatively short period of time (6 months). The “Assessment for Decision” report authored by Anthony Brown dated 2009/07/14 explains “While on LTSO, Mr. Martin had impulsively quit his job, become resistant towards further involvement in psychological counseling and lied to his Parole Officer about his developed intimate relationships. Further to that Mr. Martin was often confrontational and defensive with this writer surrounding his LTSO reality and required regular counseling in order to obtain his cooperation with supervision requirements. Moreover, Mr. Martin has demonstrated that he is unable to successfully manage his offense cycle without structure and intensive support from CSC.”

IN SUMMARY Mr. Martin’s behaviour and supervision record within the institutional setting is relatively good. He appears adept at surviving in that setting, where structure is high, boundaries are clear, and consequences for infractions are generally consistent and immediate. In this setting there is less need to draw on internal controls or personal resources to navigate day-to-day existence. Outside the institutions, his supervision history has been characterized by defiance of supervision, superficial compliance with supervision, or manipulation of supervision requirements. When faced with less structure, fewer boundaries, as well as adverse life conditions (relationship stress, employment/financial issues, housing problems) Mr. Martin’s coping is taxed. In this setting he tends to resort to impulsive and/or criminal problem solving with avoidance of the parole supervision system that is designed to assist him to control his risk of re-offence. Correctional Plans are only as useful as an offender is willing to work within them to avoid high risk situations. This typically was not the case for Mr. Martin during his last release, at a time when he should have been highly motivated to use this supervision system to his maximal benefit.

[264]     I agree and accept Dr. Neilson’s comprehensive summary of Mr. Martin’s institutional behavior, as it an accurate summary of what is compiled in Exhibits 1 to 14. And importantly, this undisputed evidence provides invaluable insight into Mr. Martin’s behavior and attitude, particularly regarding his amenability to treatment and supervision (controllability). 

[265]     In her testimony Dr. Neilson also commented on the issues surrounding manageability within the community. She noted that one of the things that offenders have to do is devise and implement a pro-social life plan. They do that with their correctional supervisors. It is part of what their correctional plan involves is to try to set some realistic goals to try to learn to live in a lifestyle that perhaps is not as exciting as their previous lifestyles were, but that still get them through. She added that Mr. Martin seemed to have quite a lot of difficulty settling into that kind of lifestyle. He is happy with it for a while, then he gets bored or needs to do something different, and he quickly and quite impulsively changes his life plan.

[266]     She noted that Mr. Martin is very impulsive in the way that he makes decisions without proper planning or in consultation with the supports that are paid to be in his life, such as his parole supervisor, consequently, he tends to get into trouble.

[267]     It is noteworthy that the National Parole Board detained Mr. Martin until his warrant expiry date because his risk to the community could not be adequately managed.

Mr. Martin’s Attitude

[268]     Mr. Martin has led a life of crime, he has been immersed in the criminal subculture for most of his life, and accordingly, it should not be surprising that his criminal values and attitudes are deeply entrenched. He has led a life of deceit, marked by a variety of serious criminal offences for which he has been imprisoned.

[269]     Dr. Neilson reported at p. 22 of her report, Exhibit 16, that although Mr. Martin professes to have undergone reform with regard to his criminal attitudes and value, these remain highly entrenched, apparent in a variety of domains, and do not appear to have shown significant abatement with the passage of time.

[270]     Mr. Martin has been described throughout the extensive documentation as being deceitful and manipulative. Dr. Neilson, in her report at p. 21 referenced issues surrounding Mr. Martin’s manipulation. She wrote:

In addition to personal relationships, over the years, he has become adept at manipulating the institutional system to his advantage, tending to attend programs to give the appearance of sincere concern for personal rehabilitation or joining religious organizations for the sole purpose of the appearance of spiritual reform. For example, an “Offender Grievance Response” dated August 19, 2005 indicated that Mr. Martin had requested a transfer to Bowden Institution (Alberta) in order to facilitate attendance at the Family Violence Program, (and in the hope of being released to that area). When the transfer became available, he refused to go, citing (in succession) medical concerns (investigation of a bowel complaint), and the possible availability of the same program at Dorchester Institution, and “if completing programs would not guarantee an early release or a change in detention status then it was not worth it” [Crown File pg. 947].

Mr. Martin’s religious affiliations (Wicca, and more recently Islam) appear to be superficial and directed towards conveying an appearance of attitudinal change and rehabilitation. When questioned, he had significant difficulty describing the fundamental pillars, beliefs and practices of these faiths, or how they impacted his day-to-day behavior. He indicated that he obtained ceremonial daggers during his last release related to his Wicca faith, and was angry when his Parole Supervisor insisted that he get rid of them. Mr. Martin asserted the daggers were for ceremonial purposes, yet in the current interview, he was unable to describe any of the ceremonial practices with which they are associated. In the current interview, he indicated that masturbation was against the Muslim faith, and as such he was “trying to stop” this practice. However, he was unable to explain the rationale for this decree within this faith system.

The file notes that Mr. Martin has changed his linguistic profile from English to French in an apparent attempt to thwart programming [Crown File pg. 951]. Other examples of manipulation include in a Needs Analysis dated July 31, 1985 by J. Lucci [Crown file pg. 1229] that “Files indicate Mr. Martin has a problem with alcohol and drugs but he says he just uses that as an excuse to the judge hoping to get his time shortened which he says usually works.”

[271]     And at p. 23 of the report Dr. Neilson commented:

Mr. Martin’s lack of empathy and disregard for the feelings, rights, and welfare of others was noted to be lacking from an early age starting with activities such as thefts, mistreatment of animals (noted in file), aggression towards those who are vulnerable mentally or physically, and including violence towards people and property as demonstrated in his crimes.

Although Mr. Martin verbalizes remorse for committing certain of the offences (i.e. was able to acknowledge that he acted in a harmful manner), he also persisted in describing past offenses in a way that justified his actions and placed considerable blame on the victims (for example he claimed his young niece always grabbed him by the groin so he did it in order to show her how it felt; he denied any sexual intent in the violent acts he committed against his partner in the 2000 offence). Consequently, although he often stated that he accepted responsibility for his behavioral choices, and expressed remorse for the harm that he had caused his victims, these statements never reached a point of appearing fully genuine or credible and often appeared to be “parroted” CSC program responses rather than true expressions of penitence.

Mr. Martin continues to hold attitudes tolerant of domestic assault (hostile attitude towards women, dominating, controlling, and critical) as noted by his disparagement of certain female partners (“a snake in the grass”; “a drunk”), his expressed objectification of others (“relationship was just sex”); misinterpretation of actions of young females as “coming onto him”; and ongoing patriarchy (the expression that certain female companions fully depended on him in order to survive). He does not view these attitudes as pathological.

[272]     Lastly, she noted at p. 23 to 24 that:

Concerning his self-assessment, Mr. Martin is very clear that he does not perceive himself as a sexual offender. He said that he does not condone such behavior and refers to such individuals as “animals”. Mr. Martin continues to employ a wide array of cognitive distortions not only in relation to the nature of his offending, but also in relation to his need to change his behaviour to prevent future re-offence.

IN SUMMARY, Mr. Martin’s criminal attitudes, beliefs and values are extensive. They include deceit, manipulation, lack of remorse, dearth of empathy, dependent lifestyle, poor behavioral controls, lifelong difficulties with impulsivity, poor problem-solving, negative emotionality/hostility, and attitudes tolerant of general, sexual and domestic violence. Mr. Martin continues to demonstrate a lack of self-awareness of his risk of repeating harmful violent behaviours, He also underestimates the need for active self-monitoring and self-control of his risk factors. Although he has made some improvements through treatment programs in certain of these domains, these do not appear to have translated into a sustained pro-socially orientated lifestyle.

[273]     At p. 43 of Exhibit 16, Dr. Neilson opined that Mr. Martin continues to express hostility towards past partners, and expressed beliefs that condone sexual violence against women. He also expressed attitudes that are permissive of sexual assault against children. She also expressed the opinion that Mr. Martin has an intellectual, but not a practical understanding, of the multifaceted nature of his offense behaviour or the dynamic risk variables. He is not able to identify his own thoughts (cognitive distortions), feelings (positive and negative) and behaviours that lead him to risky situations that result in sexual or violent offending. Further, he does not perceive himself as a “sex offender”, and as such he habitually fails to recognize risky situations when they arise, or else he grossly underestimates the magnitude of risk he poses to others. Mr. Martin must learn to remain vigilant in relationships, address his pro-offending attitudes and cognitions, abstain absolutely from substances, address relevant personal issues (anger/assertiveness/self-esteem/control), establish and maintain stable employment, establish and maintain appropriate personal and professional supports, practice appropriate coping strategies for managing stress, and control his sexual risk factors.

[274]     Mr. Martin’s history of deceit, insincerity, impulsivity and manipulation would, in my opinion, make community supervision virtually impossible. Mr. Martin’s level of compliance is of concern as evidence by his breach of his Long-Term Offenders Supervision Order, after approximately 7½ months in the community. He not only breached his Long-Term Offender Supervision Order, he committed another serious personal injury offence, which is consistent with his pattern of violent behaviour.

Mr. Martin’s Amenability to Treatment and Supervision (Controllability)

[275]     An offender's amenability to treatment and the prospects for the success of treatment in reducing or containing the offender's risk of reoffending are critical factors. (Johnson, paras.33 to 36).

[276]     As stated, it is well documented in Exhibits 1 to 14, that Mr. Martin has minimized, justified or displaced blame onto others, throughout his life. This continued pattern has been described by Dr. Neilson in her evidence as well as in her report, Exhibit 16. She explained the condition cognitive distortions, which are mental mechanisms of moral disengagement that reduce the personal cost of perpetrating antisocial behavior. They include denial, minimization, justification, externalization of blame, selective memory etc., and represent a failure to accept full personal responsibility for acts of violence and sexual violence and/or the consequences of those acts. She noted that even though the offence denial and minimization do not seem to correlate highly with risk to re-offend it is nevertheless an important variable when an offender continues to engage in thought patterns that somehow, permit or condone their behavior. She added that this may be because it affects treatment participation and completion, of because it interferes with the ability to comply with other risk management strategies such as monitoring and supervision. In Mr. Martin’s case, she opined that this has been fairly consistent from an early age. He does not tend to accept responsibility for his behavior, or accepts only a small degree of it. This may, in my view, explain, in part, Mr. Martin’s continued minimization of his behaviour in most the offences for which he plead guilty and was convicted, as described in Exhibit 16, Appendix B.

[277]     Dr. Neilson also opined that Mr. Martin has issues with self-awareness, as he intends to underestimate the factors that result in his being at risk of perpetuating violence or sexual violence. Nor does he seem to have insight and/or the understanding of what those factors are and how he ends up in those situations. An exemplification of Mr. Martin’s lack of understanding and appreciating the depth of his issues, is his request to remove the treatment condition from his Long-Term Supervision Order.

[278]     With respect to problems with manageability, treatment and supervision, Dr. Neilson’s opinions are apposite, at p. 47 she wrote:

This factor reflects problems making in implementing pro-social life plans. It includes poor self-management, unrealistic goals, inability to delay gratification, and impulsivity. It may increase opportunities to perpetrate sexual violence through exposure to destabilizing factors or “high-risk” situations. People who fail to devise suitable, safe, and realistic plans for discharge from an institution, or who fail to follow them, are at increased risk of criminality and violence after release. Problems with planning and self-management (i.e. ability to plan, problem solve, and regulate impulses) are one of the most common features associated with recidivism in sex offenders.

Mr. Martin has a long history of difficulty in forming and adhering to a pro-social life plan. During his last release, his Case Management Team had worked with Mr. Martin to develop a suitable safe plan for release from the Correctional Institution, (which Mr. Martin resisted by falling to take part in all recommended programs until threatened with denial of statutory release), and from the Community Correctional Centre (which Mr. Martin allowed to fail apart by actively working against his correctional plan and/or by actively failing to adhere to it). As a result, he soon reverted to his previously well-established pattern of behaviour that placed others at risk.

          20. Problems with Treatment

Problems with treatment reflect the failure to benefit from rehabilitative services designed to address deficits in the person’s psychosocial/psychosexual adjustment. Related concepts include treatment rejection, noncompliance, or drop out; deficits in motivation, responsiveness, or treatability; and low self-efficacy or self-confidence with respect to treatment. Treatment problems decrease the likelihood that other important risk factors will be appropriately diminished or controlled, leading to the failure to manage the exacerbation of negative emotional or interpersonal conflict. They may also increase opportunities to perpetrate sexual violence through exposure to destabilizing or “high risk” situations. People who are rejecting of correctional or mental health support or who lack the motivation to make use of this support are at increased risk of criminality and violence. With respect to sex offenders, there is research indicating the people who do not receive, or who drop out of, sex offender treatment programs are at increased risk of recidivism. There is also evidence that more general problems with motivation for change or attitudes towards treatment are associated with increased risk of sexual violence.

Mr. Martin’s past treatment record suggests deficits in response to treatment, likely predicting the same in the future. Further, the presence of psychopathy is a poor prognostic factor in terms of treatment response.

21. Problems with Supervision

Problems with supervision reflect the failure to benefit from services designed to make it (more) difficult for the person to engage in further sexual violence. A history of failing to conform to the demands of community supervision is a well-established predictor of sexual, violent, and any recidivism. Supervision problems decrease the likelihood that other important risk factors will be appropriately diminished or controlled, leading to exacerbation of negative emotional states or interpersonal conflict. They may also increase opportunities to perpetrate sexual violence through exposure to destabilizing factors or high-risk situations.

Mr. Martin’s past record of supervision is poor, likely predicting the same in the future. Further, the presence of psychopathy is a poor prognostic factor in terms of supervision compliance.

[279]     Lastly, Dr. Neilson outlined in her report, Exhibit 16, Mr. Martin’s treatment and rehabilitative needs, she wrote at pp. 50 to 53:

At the present time Mr. Martin says he is motivated to participate in any programs that might help to secure his successful return to the community. This is not surprising given the potential consequences of the current proceedings. Although Mr. Martin indicates a desire to participate in programming, there is no evidence that positive intention to participate in programs translates into a reduction in recidivism. However, an expression of refusal to pursue treatment has been shown to be related to negative outcome and increased recidivism in antisocial individuals. It should be noted that Mr. Martin has refused to participate in the PPG assessment (in the guise of refusing Correctional Policy) and has already indicated that he is not willing to consider anti-arousal medication should it be indicated to assist with sexual re-offense risk control.

Mr. Martin appears to be reasonably capable of functioning adequately in society, although it is unclear how motivated he is to use these capabilities in a pro-social manner. He tends to minimize or deny personal problems, resorts to criminal solutions to his problems, and assigns blame for his shortcomings onto others or onto circumstances, habitually failing to accept personal responsibility for his behaviour.

b) Anticipated benefit from treatment programs

In trying to identify those offenders who would be good candidates for treatment is often helpful to look at their response to previous treatment. This often provides an indication of the individual’s treatment responsiveness/degree of motivation for change. That said, some individuals may demonstrate failure to benefit from treatment early in their incarceration(s), only to fully engage in treatment at a later time.

In Mr. Martin’s case, the evidence is mixed. As noted in the sections above, he participated in various institutional programs, and refused and/or did poorly in others. He made limited gains in the High Intensity Sex Offender Treatment Program. He is said to have done somewhat better in the High Intensity Family Violence program. He participated in individual Maintenance Programming during his most recent release and seemed to make some progress but nevertheless appeared to be somewhat resistant to change related to his denial of being a sex offender, and thus minimization of risk.

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 research literature indicates that individuals high in psychopathic traits exhibit a poor response to treatment with a greater likelihood of refusing treatment out right or dropping out of treatment. In this case Mr. Martin has psychopathy, so this would suggest a negative prognosis on its own.

Overall, there is reason to have concern about Mr. Martin’s capacity to benefit from future programming, given his limited benefit from prior program participation (that was specifically aimed at managing his risk of relationship violence and sexual recidivism), his continued limited insight into the nature of his difficulties, his demonstrated inability to translate the limited gains he made from that programming to ‘real life’ situations, and the presence of psychopathy.

c) Treatment requirements

Treatment needs and treatment response is assessed by professional staff at the Correctional Services of Canada. It is recommended that should Mr. Martin be consider for future release, that prior to such a release he be required to attend (and successfully complete) treatment programs aimed at addressing his: risk of violence/sexual violence, risk of spousal/family violence, criminal attitudes/values antisocial lifestyle/associates, vocational and educational training; substance misuse, lack of cooperation with supervision, and any other areas of need identified by the professionals at the Correctional Services of Canada.

This would (of necessity) absolutely include compliance with PPG testing for sexual deviance, and if indicated, pharmacologic anti-arousal treatment, or pharmacologic treatments aimed at reducing his impulsivity and aggressiveness. It has been demonstrated that anti-arousal medication treatments are associated with reduced rates of sexually violent recidivism in offenders who have deviant sexual arousal, high sex drive/sexual preoccupation, and recurrent sexual acting out behaviours. However, it has NOT been demonstrated that drug-diminished impulsivity results in a decrease in delinquent or antisocial behaviours in long-term follow-up studies

Upon any eventual release, Mr. Martin should be required to attend Maintenance groups aimed at maintaining program and addressing any other areas of need identified by the Correctional Services of Canada, (unless otherwise specifically recommended by his Case Management Team) until the expiry of his detention order.

Any future release Mr. Martin should include the requirement for structured daytime activity (e.g. regular full time employment); and the appropriate use of leisure time. It is known that during periods in the community when Mr. Martin has had a well structured life with stable employment, stable relationships, and good supports within the community historically he is more inclined to maintain a pro-social existence. Mr. Martin did well during his most recent release in terms of employment stability. He was less successful in establishing appropriate non-professional supports within the community. A Circle of Support and Accountability, if one is available in the release community, may assist in this regard.

SUPERVISION REQUIREMENTS

a) Motivation

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. At the present time Mr. Martin says he intends to cooperate with supervision on any future release, but given the circumstances, this is not surprising. Similar to treatment participation, stated positive intentions are irrelevant in terms of violence risk prediction. However an expression of refusal to comply with supervision has been shown to be related to negative outcome and increased recidivism in antisocial individuals. Mr. Martin did not express an intention to outright refuse to comply with supervision in the future, but it is likely that his previously demonstrated passive defiance of supervision will continue.  This does not bode well.

b) Responsiveness to Supervision

The research supports that appropriate supervision addressing risk factors associated with violent and sexually violent recidivism clearly results in reduced recidivism. Having failed on Conditional Release, experienced a revocation of parole, or having attempted an escape from custody is associated with increased risk for future violence.

To determine whether Mr. Martin might respond to supervision in the future it is useful to examine how he has responded to past supervision. Mr. Martin’s supervision record is poor. He has a prior Mandatory Supervision failure. He has escaped custody, and violated the conditions of his LTSO.

Examining his most recent period of supervision it was clear that Mr. Martin fundamentally did not perceive himself to be a high risk to re-offend and thus substituted his own judgment for that of his parole supervisors and deliberately placed himself in high-risk situations, failing to heed the conditions of supervision or take them seriously. He consistently demonstrated a resistance to supervision by testing known risk factors, failing to disclose high risk situations, and breaking the conditions of supervision etc.

Based on the above known associations, it might not be unreasonable to conclude that this pattern will continue upon any future release, making future community supervision challenging.  Furthermore, antisocial attitudes and values, the presence of psychopathy, and a history of supervision failures (all present in Mr. Martin) are in and of themselves predictive of poor response to future supervision and correlate with worse prognosis in terms of violence risk. Supervising psychopathic people has formidable problems. They evince considerable self-righteousness, they are difficult to engage in Correctional Plans, and are manipulative of “the system” and the people who work in it. Most often, attempts to compel compliance inflame the psychopath’s sense of being victimized, and attempts to provide a corrective experience are limited by dishonesty in communication or trivialization of the correction. These all represent significant challenges in Mr. Martin’s case.

c) Supervision Requirements

Mr. Martin seems to function well in correctional institutions and highly structured community correctional environments because he is adept at dealing with this system (of external controls). However, good behavior and progress attainments within such a system do not necessarily indicate a significant change in his basic values which continue to contribute to maladjustment within the community, nor does it predict the development of the internal controls required to prevent future re-offending.

Community management should only be attempted after Mr. Martin 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 that assist with the development of a sound relapse prevention plan and appropriate self-monitoring tools.

The aim of a Community Correctional Plan is to facilitate the development of an offender’s ‘internal controls’ and to develop an appropriate support network such that the ‘external controls’ and supports of the Correctional Services eventually become redundant. The intensity of supervision that is required upon any eventual release and the details of his Community Correctional Plan will be determined by the Parole Board his Case Management Team. The conditions should not be so onerous or restrictive as to replicate that which is provided within the Correctional Facility, however they must address all known dynamic risk factors.

[280]     In my view, Mr. Martin’s behavior, attitude and conduct while he was subject to the Long-Term Offender Supervision Order is of significance in my consideration of the central issue in this proceeding. As stressed earlier, not only did Mr. Martin commit a serious personal injury offence, a sexual assault, not long after he was released from the Charlton Center, approximately, (7½ months) not years, he resisted supervision while he was serving his sentence. He was deceitful, with his supervisors, and there were compliance concerns. While at the Charlton Centre, his residence requirement was extended in 180 days increments until the residence condition expired, at the end of September 2008. On each occasion the residence requirement was extended because of the risk to the public. Of most concern, however, was Mr. Martin’s request to the National Parole Board to remove the condition that he be required to comply with a treatment plan as directed by the CSC psychologist, as he believed he no longer needed that intervention.

[281]     In my view this evidence in particular demonstrates the level of commitment Mr. Martin has shown towards his rehabilitation, as it appears that he was only prepared to do the minimum. to be in compliance. His resistance to supervision also speaks to level of his commitment. In other words, paying lip service to treatment is one thing, but actually participating in it in a meaningful way is quite another. What Mr. Martin has to do in the future is the later not the former; otherwise he will likely never be released from a highly structured environment. Put differently, and in the words of Dr. Neilson’s, Mr. Martin’s past record of supervision is poor, likely predicting the same in the future. Further, the presence of psychopathy is a poor prognostic factor in terms of supervision compliance.

[282]     At page pages 53 to 54, Dr. Neilson makes several recommendations in the event Mr. Martin is eventually released into the community at some future stage. Her first recommendation is that: Mr. Martin should be required to reside in a highly structured setting until such a time that he is able to demonstrate successful self-management and full compliance with his Correctional Plan, prior to any consideration of release to independent living.

[283]     In her evidence, Dr. Neilson commented on treatment and rehabilitative needs and supervision requirements. She observed that like most people facing a dangerous offender designation they indicate that they are highly motivated to participate in treatment programs, but what is most telling is their motivation when they were actually in the community under supervision. In Mr. Martin’s case, for example the request that he have a treatment clause removed would indicate that he is less motivated when he is not under the gun, when he is not in a situation.

[284]     Notwithstanding that, Dr. Neilson commented that Mr. Martin does express a positive intention to participate in programs, which is a good thing. She added, whether that will translate into a positive action is unknown, although certainly in the past he seems to have fallen off in terms of his motivation.

[285]     In considering what benefit Mr. Martin might get from programs, Dr. Nielson said that requires consideration of what benefits he received from past programs, and what his involvement has been. In Mr. Martin’s case, she noted that he made limited gains in the past in the High-Intensity Sex-Offender Treatment Program. Apparently, he did somewhat better in the High-Intensity Family Violence Program, but he wasn’t able to put either of those programs to practical benefit when the situation arose.

[286]     With respect to whether Mr. Martin is manageable in the community at this point in time, Dr. Neilson commented that his behavior was somewhat manageable, although he “managed to sneak under the radar an awful lot of things that were potentially risk-related behaviours, such as being in possession of pornography and failing to report relationships”.

[287]     She further pointed out, that when Mr. Martin moved out on his own, he basically rejected supervision and failed to report important points of risk to is parole supervisor, failed to use the parole system to keep himself safe, and to keep other people safe. She further added that Mr. Martin certainly demonstrated that he was not able to manage, as he does not have sufficient internal controls to manage without quite significant external control.

[288]     Dr. Neilson stated that to her knowledge nothing has changed regarding Mr. Martin’s since she originally wrote the report in 2010.

[289]     It was suggested to Dr. Neilson that while Mr. Martin was living in the half-way house for two years, he was a manageable risk in the community. She agreed, but then added that with close supervision and management, and then pointed out that Mr. Martin experienced some difficulties, including the use of substances on two occasions: one incident involving alcohol and the other, marijuana. She also pointed out that Mr. Martin was resistant to attending programs that had been recommended to him and those kinds of things. Otherwise, she added, during that two year period while under supervision within CCC, he managed.

[290]     Dr. Neilson also expressed the view that Mr. Martin has not shown any evidence of “burning out”, or reducing acting out. She stated that Mr. Martin seems to have quite a life-course, persistent incidence of violence and sexual violence that started at an early age and continues. She concluded that usually burning out does not occur until 50’s or 60’s, that is the rate at which once can expect to start seeing a reduction.

[291]     While burnout is a factor that may reduce Mr. Martin’s risk, Dr. Neilson never suggested that this burnout factor ought to be relied on in and of itself to manage the risk.

[292]     Mr. Atherton made the point, with Dr. Neilson, that while Mr. Martin committed a sexual assault on A.M.C., it was not as serious, it was an offence of decreasing severity as compared to the sexual assault against M.L..  Dr. Neilson explained that that in terms of risk assessment, both offences are sexual assaults, regardless of the intrusiveness. Her response is consistent with the Supreme Court of Canada’s decision in Currie.

[293]     After it was suggested to Dr. Neilson that Mr. Martin was manageable while he was in a closely supervised setting, the Carleton Centre, Dr. Neilson testified that it is possible that Mr. Martin would continue to be managed in a community setting, but stressed that the difficulty with Mr. Martin’s management when he was at the Carleton Centre was that he “resisted certain bits of advice that could have kept him from offence-free when he moved into the community”. She added that things like being resistant to getting rid of the pornography, and resisting his attendance with Ruth Simmons. She concluded by stating that while Mr. Martin superficially complied with everything that was required of him, he had a passive-aggressive approach towards his supervision in which, if he could get away with things, he would.

[294]     In my view, there is no doubt whatsoever that Mr. Martin requires immediate treatment. However, as to whether he will genuinely seek it remains to be seen. Based on all of the evidence, his amenability to treatment is a real issue. As Dr. Neilson’s said, it is a good thing that Mr. Martin expresses a positive intention to participate in programs, but whether that will translate into a positive action is unknown, although she added certainly in the past he seems to have fallen off in terms of his motivation. I find that Dr. Neilson’s lack of optimism is well founded based on Mr. Martin’s past behavior. 

[295]     I have no confidence that there will be any particular time period within which Mr. Martin may be able to function in the community. Dr. Neilson stated in her report that Mr. Martin “should be required to reside in a highly structured setting until such time that he is able to demonstrate successful self-management and full compliance with his Correctional Plan, prior to any consideration of release to independent living”.

[296]     All of the evidence, relating to Mr. Martin’s possible management in the community is speculative hope. At best, it is a hope that perhaps treatment and control may be successful in the future. This is simply not good enough, as the possibility of rehabilitation is dependent on contingencies that amount to a mere hope. For example, it is unknown whether Mr. Martin will be amendable to treatment, and if amendable, whether he would be treatable within a definite period of time. As Dr. Neilson opined it is unknown whether Mr. Martin’s will participate in treatment programs and he should be required to reside in a highly structured setting until such time that he is able to demonstrate successful management and full compliance with his Correctional Plan.

[297]     The law is clear, in order to achieve the goal of protection of the public under the dangerous offender and long-term offender provisions, there must be evidence of treatability that is more than an expression of hope and that indicates that the specific offender can be treated within a definite period of time. (R. v. McCullum (2005), 201 C.C.C. (3d) 541, leave to appeal refused, [2006] S.C.C.A., at para 47).

[298]     As stated in R. v. Little, 2007 ONCA 54, at para. 42, a decision of the Ontario Court of Appeal:

[T]o achieve the goal of protection of the public under the dangerous offender and long-term offender provisions in the Code, evidence of treatability that (i) is more than mere speculative hope, and (ii) indicates that the specific offender in question can be treated within an ascertainable time frame, is required. The requisite judicial inquiry on a dangerous offender application, mandated by Johnson, is concerned with whether the sentencing sanctions available under the long-term offender provisions of the Code are "sufficient to reduce [the offender's] threat to an acceptable level." [Emphasis added.] The determination of whether an offender's risk can be reduced to an "acceptable" level requires consideration of all factors, including treatability, that can bring about sufficient risk reduction to ensure protection of the public. This does not require a showing that an offender will be "cured" through treatment or that his or her rehabilitation may be assured. What it does require, however, is proof that the nature and severity of an offender's identified risk can be sufficiently contained in the community, a non-custodial setting, so as to protect the public.

[299]     Similarly, in R v. Muir, 2003 BCCA 66, a decision of the British Columbia Court of Appeal, at para. 27 held:

[T]he test which must be met is a "reasonable possibility". In this context, having regard to the frightening nature of the risks which the legislation is intended to prevent, the legislative intent must be to require the emphasis to be on reasonableness of the possibility

[300]     The test is not some vague hope of managing the risk in the community but a reasonable possibility of doing so. (R. v. Allen,2007 ONCA 421, at para. 31)

[301]     As previously discussed in these reasons, the dangerous offender legislation has been amended since the decisions in Little and Muir were decided, and now requires a reasonable expectation that something less than an indeterminate sentence will adequately protect the public.

[302]     Having carefully considered all of the evidence, I am unable to conclude that there is a reasonable possibility of eventually controlling the risk Mr. Martin poses in the community. The evidence, relating to the issue of a reasonable possibility of eventual control of the risk in the community is speculative. At best, it is a hope that perhaps treatment and control may be successful in time.

[303]     As earlier stated, the law is clear, in order to achieve the goal of protection of the public under the dangerous offender and long-term offender provisions, there must be evidence of treatability that is more than an expression of hope and that indicates that the specific offender can be treated within a definite period of time. (Osborne, 2012 MBQB 174, at para. 72) There must be evidence that the offender could be rehabilitated within a fixed period of time available for a determinate sentence followed by period of community supervision. (R. v. Higginbottom, 2001 Carswell Ont. 2343).

[304]     The mere possibility that Mr. Martin might in the future benefit from treatment, is not sufficient to warrant a conclusion that there is a reasonable possibility of eventual control of the risk of re-offending.

[305]     There must be evidence of treatability that is more than an expression of speculative hope: The evidence in this case does not rise above such a vague or speculative hope.

[306]     In this case, I cannot conclude based on all of the evidence that following a custodial sentence there is a reasonable possibility or reasonable expectation that the risk posed by Mr. Martin can be managed or controlled in the community with a fixed period of time.

[307]     If Mr. Martin’s risk is to be controlled in the community, it will be through a combination of various things which, I am satisfied, will have to be in place for a very long time. I am not satisfied that there is a reasonable expectation that the combination of a determinate sentence and a long-term supervision order would adequately protect the public because I am not satisfied that Mr. Martin's risk can be reduced in that timeframe to the point that he could then be completely free in the community and the public still protected.

[308]     It should be noted that the indeterminate sentence does not mean that Mr. Martin can never be released back in the community. It does not leave him without hope of eventually being released.

[309]     Looking prospectively from today, I simply cannot find on the evidence before me that there is a reasonable expectation, based on more than a hope, that the public will be protected by a long-term supervision order or by anything less than an indeterminate sentence.

[310]     If Mr. Martin responds, at some point, sufficiently to the treatment offered, then he may be released from prison under an appropriate level of ongoing supervision and treatment.

Conclusion

[311]     In conclusion, based on all of the evidence, in particular Mr. Martin’s criminal history and Dr. Neilson’s viva voce evidence and her report, Exhibit 16, I am satisfied that there is no reasonable expectation that a lesser measure will adequately protect the public. Therefore, having found Mr. Martin a dangerous offender, I sentenced him to an indeterminate sentence of imprisonment, pursuant to s. 753(4)(a) of the Criminal Code.

[312]     As Justice Cacchione stated in Shrubsall, at para. 278, “The court is not entitled to gamble on the safety of the public when that risk has so clearly been identified”.

[313]     Mr. Martin, please stand, sir, having declared you a dangerous offender, this court sentences you to an indeterminate sentence of imprisonment, pursuant to s. 753(4)(a). The Court also grants the following orders:

Ancillary Orders

[314]     Mr. Atherton, it is my understanding that you are not opposing the DNA order, the s. 109 Order or the SOIRA Order, and you are satisfied with the substance and form of the orders which you have reviewed. Thank You.

[315]     Accordingly, I grant those orders.