R. v. Kane

2012 BCSC 1601 R. v Kane

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v Kane, 2012 BCSC 1601 Date: 20121009 Docket: 24709-7 Registry: Vancouver Regina v. Carl Joseph Kane Before: The Honourable Mr. Justice Myers Corrected Reasons: The judgment was amended at paragraph 8 on November 27, 2012 Reasons for Judgment Counsel for the Crown: Jane Nascou Counsel for Mr. Kane: Brian Coleman, Q.C. J. Meyers A/S Place and Date of Hearing: Vancouver, B.C. July 18, 2012; September 12, 2012 Place and Date of Judgment: Vancouver, B.C. October 9, 2012 [1] The Crown applies to have Mr. Kane declared a long-term offender pursuant to s. 753.1 of the Criminal Code, R.S.C. 1985, c. C-46. [2] This application follows my December 1, 2010 conviction of Mr. Kane for sexual assault causing bodily harm. That offence took place on March 20, 1998. The sections of the Code dealing with long-term offenders were amended in 2008. In R. v Aleck, 2009 BCSC 1677, Ehrke J. concluded that the amended sections were not more favourable to the accused than the prior version and he therefore applied that prior version. Following that decision, I will do the same. [3] The following provisions of the Code were operative at the time of the 1998 offence: 752. "serious personal injury offence" means (a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving (i) the use or attempted

use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person, and for which the offender may be sentenced to imprisonment for ten years or more or, (b) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault). 752.1 (1) Where an offender is convicted of a serious personal injury offence or an offence referred to in paragraph 753.1(2)(a) and, before sentence is imposed on the offender, on application by the prosecution, the court is of the opinion that there are reasonable grounds to believe that the offender might be found to be a dangerous offender under section 753 or a long-term offender under section 753.1, the court may, by order in writing remand the offender, for a period not exceeding sixty days, to the custody of the person that the court directs and who can perform an assessment, or can have an assessment performed by experts. The assessment is to be used as evidence in an application under section 753 or 753.1. 753. (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find the offender to be a dangerous

offender if it is satisfied (a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing (i) a pattern of 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 likelihood of causing death or injury to 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 behaviour 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. ... (4) If the court finds an offender to be a dangerous offender, it shall impose a sentence of detention in a penitentiary for an indeterminate period. ... (5) If the court does not find an offender to be a dangerous offender, (a) the court may treat the application as an application to find the offender to be a long-term offender, section 753.1 applies to the application and the court may either find that the offender is a long-term offender or hold another hearing for that purpose; or (b) the court may impose sentence for the offence for which the offender has been convicted. ... 753.1 (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that (a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted; (b) there is a substantial risk that the offender will reoffend; and (c) there

is a reasonable possibility of eventual control of the risk in the community. (2) The court shall be satisfied that there is a substantial risk that the offender will reoffend if (a) the offender has been convicted of an offence under section 151 (sexual interference), 152 (invitation to sexual touching) or 153 (sexual exploitation), subsection 173(2) (exposure) or section 271 (sexual assault), 272 (sexual assault with a weapon) or 273 (aggravated sexual assault), or has engaged in serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted; and (b) the offender (i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender's causing death or injury to other persons or inflicting severe psychological damage on other persons, or (ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offence. (3) Subject to subsection (3.1), (4) and (5), if the court finds an offender to be a long-term offender, it shall (a) impose a sentence for the offence for which the offender has been convicted, which sentence must be a minimum punishment of imprisonment

for a term of two years; and (b) order the offender to be supervised in the community, for a period not exceeding ten years, in accordance with section 753.2 and the Corrections and Conditional Release Act. ... (6) If the court does not find an offender to be a long-term offender, the court shall impose sentence for the offence for which the offender has been convicted. [4] Therefore, in order for me to declare Mr. Kane a dangerous offender, I must find that: 1. he has been convicted of a serious personal injury offence; 2. the appropriate sentence is two years or more; 3. there is a substantial risk that Mr. Kane will reoffend; and 4. there is a reasonable possibility of eventual control of risk in the community. I. Requirement 1 - a serious personal offence [5] With respect to the first criteria, I convicted Mr. Kane of sexual assault causing bodily harm. That is an offence specifically mentioned in s. 752, which defines "serious personal injury offence". II. requirement 2 - The sentence for the offence A. The circumstances of the offence [6] The following is taken from my reasons for judgment (2010 BCSC 1978) in which I convicted Mr. Kane for sexually assaulting J.L. and causing her bodily harm: [1] THE COURT: The accused is charged with sexually assaulting J.L. on March 20, 1998. In 2008, the RCMP in Halifax took a blood sample from Mr. Kane. They concluded that it matched

DNA found on J.L.'s underwear shortly after the assault. Mr. Kane was indicted on September 13, 2010. The only evidence adduced linking Mr. Kane to the alleged crime is the DNA. There is no dispute that J.L. was assaulted that day. What is disputed is whether the assault was a sexual one and whether Mr. Kane was the perpetrator. Mr. Kane did not testify nor did he adduce any evidence challenging the DNA evidence. The continuity of exhibits is admitted. [2] In 1998 J.L. lived in the Champlain Heights area of Vancouver with her common law partner, D.S. There is a network of trails through the community. J.L. and D.S. frequently took a series of trails to a nearby neighbourhood pub, The Krazy Kangaroo, where they met other "regulars". Most of the trails on the route were concrete-surfaced and lit, but there was a shortcut that was on a dirt trail through bushes and unlit. [3] On the evening of March 20, 1998, J.L. was at the pub. D.S. had been there, but left for home before J.L. J.L walked back to her house following her usual route. When she was on the unlit dirt trail, she said that someone jumped out from the trees and grabbed her. She tried to get away but was knocked to the ground. She was able to get up and tried to escape. The man who was the attacker yelled what J.L. said was a martial arts cry and hit her. She fell to the ground. She said she was unconscious for a

time. [4] At some point before losing consciousness, she was aware of the assailant telling her not to worry because he was not going to rape her. As well, she was aware of her shoes coming off and the assailant saying that, "They were over there." When J.L. regained consciousness, she was fully clothed with her pants pulled up and shirt pulled down. She was able to get up, gather her purse, and make her way home. She could not find her shoes. Other than the grabbing and hitting which I described, J.L. does not remember any other touching. She remembers nothing else about the assault. Nothing had been taken from her purse. J.L. said the assailant seemed husky and was two to three inches taller than her five-foot-five inches. He did not have an accent. She said she did not get a good enough look at the assailant to be able to identify him. ... [6] J.L. was taken to the hospital. She suffered bruising and cuts around her right eye, abrasions to the side of her forehead, a laceration on her head, and bruising on her chest. She also suffered several scratches. Branches and dirt were in her hair. J.L. was given a pelvic exam for signs of sexual abuse. No sign of semen was found. She had a superficial abrasion near the opening of her vagina which the examining nurse noted as being "consistent with forced trauma." In her cross-examination, the nurse said that the abrasion could have

been caused by rough consensual intercourse. J.L's underwear had a stain on it which was analysed. It was determined that this was semen. J.L's shirt had bloodstains which were determined to be from her own blood. I will return to the semen sample later. [7] The DNA taken from the sample matched Mr. Kane's DNA. B. Mr. Kane's criminal record [8] Mr. Kane has previously been convicted of two other sexual offences. I have taken the summaries of those convictions from the Crown's written argument: February 28, 1986 Sexual Assault with a Weapon Offence Date: August 21, 1985 Jurisdiction: Dartmouth, Nova Scotia Sentence: 4 years and 6 months Sentence of the Court: February 27, 1986, E. MacDonald PCJ Christine Curran, the 32 year old victim, was at home alone asleep in her bedroom. She awoke to the offender kneeling on top of her holding a knife in his hand. He told her to stop screaming and stuffed cotton balls into her mouth. He threatened her with his knife, and over the course of two hours forced her to have sexual intercourse three times, during which time he kept the knife in his hand. For the last act of intercourse he made the victim kneel on the bed while he tied her wrists behind her back and her ankles. After he finished, he went around the house and wiped off his fingerprints. He told her he learned about raping from television, and he would rape again, and when he did, he

would kill himself. He told the victim how he had planned this rape in great detail. He told the victim he knew all about her, and told her he entered her home by crawling through her basement window. He pulled his clothes on and left, saying words to the effect "good bye Christine, you will remember this night for the rest of your life". Curran got free from her bondage and went to a neighbour's house and called police. The offender had entered by placing a ladder against a window. He had called the house earlier in the evening. The following day, the offender called the victim's house twice, but did not get any answer. Thinking that the victim was still tied up, he broke into the house the following night and found no one home. January 7, 2011 (Offence Date: February 12, 1995) Sexual Assault Jurisdiction: Vancouver, BC Conviction Date: October 13, 2010 Sentence: 4 years jail (time served) Reasons for Judgment: R. v. Carl Joseph Kane, 2010 BCSC 1975 Reasons for Sentence: R. v. Carl Joseph Kane, 2011 CarswellBC 622 On February 12, 1995, the offender sexually assaulted [S.J. also known as S.P.]. [S.P.] was a sex trade worker. At approximately 2 a.m., the offender followed [S.P.] from a restaurant at Kingsway and Victoria in Vancouver. [S.P.] told him she was not working, but he persisted in asking her for a sexual service. [S.P.] relented and they agreed upon a price. They

walked for several blocks along Kingsway until the offender cut between two buildings. He met [S.P.] in the lane. She put a condom on the offender and started to perform fellatio. He grabbed her head and banged it against a wall. He took off the condom and had intercourse, ejaculating in her vagina. A male DNA profile was obtained from genital swabs. In 2008, the offender's DNA was matched to the unknown profile. [9] Further convictions are as follows. In 1998 Mr. Kane was convicted of failing to comply with a recognizance when he breached a no-contact order with his girlfriend, whom he was charged of assaulting. The assault charge was dealt with by a s. 810 peace bond. [10] In 2001 Mr. Kane was convicted of criminal causing bodily harm when he struck his four-year-old son in anger after he wet the bed. He received a suspended sentence and 30 months' probation. [11] In 2008 Mr. Kane was convicted of attempting to obstruct justice and breach of an undertaking. The circumstances with respect to the undertaking breach were similar to those which led to the 1998 conviction, but with a different girlfriend. The attempt to obstruct justice related to threats made to his girlfriend in relation to her prospective testimony for a charge of assault, which was ultimately not proceeded with. [12] While in custody, Mr. Kane has completed all 10 sessions of the Violence Prevention Program,

and has been working in the prison shop since May 16, 2010. He has also completed a substance abuse management programme. [13] In R. v. Schinkel, 2008 PCPC 76, Gulbransen Prov. Ct. J. helpfully reviewed the authorities for sexual assault cases causing injury and sexual assault with use of a weapon. He concluded that the sentencing range was between four to six years. [14] Many of the cases were more violent than the case at bar, but in some the accused did not have a record. [15] R. v. W.N.C., 2005 BCCA 346, a case cited by Gulbransen Prov. Ct. J., the 19-year-old accused followed a 16-year-old woman and, while threatening her with a knife, forced her to perform fellatio on him. The accused unsuccessfully attempted to have intercourse with the victim. The accused pled guilty and had no criminal record. The Court of Appeal upheld an effective sentence of four years. [16] This was Mr. Kane's third sexual assault offence. The first offence took place in 1985, the second in 1998 and the current one also in 1998. Mr. Kane argues that the time gap between the first and the latter two offences mitigates this record. I do not agree; and if it did act to mute Mr. Kane's record, the effect would be de minimis. [17] In my view, the appropriate sentence here is five years. [18] There will be credit for time served, on a two-for-one basis, for a total of four years. The sentence therefore

left to serve is one year. [19] This sentence meets the two-year minimum sentence requirement in order to find Mr. Kane a long-term offender. III. Requirement 3 - a substantial risk that Mr. Kane will reoffend [20] Section 753.1(2) is a deeming provision for "a substantial risk that the offender will reoffend". But even if the prerequisites of that section are not found, the court may still come to the conclusion that that substantial risk exists: R v. Aleck, 2009 BCSC 1677. [21] The requirement of s. 753(2)(a) is met here, because Mr. Kane has been convicted of sexual assault causing bodily harm, an offence dealt with in s. 271. [22] In addition, either of the circumstances set out in s. 753.1(2)(b) must be found to exist. It appears to me from the history of Mr. Kane's offences that Mr. Kane has shown a pattern of behaviour which shows a likelihood of inflicting a similar injury or severe psychological damage to someone (753.1(2)(b)(i)). I reach a similar conclusion with respect to s. 753.1(2)(b)(ii). [23] I come to those conclusions without the assistance of the assessment prepared for this application; however the report bolsters my conclusions. It is also relevant to the fourth requirement. I will deal with that report now. A. The dangerous offender assessment [24] Dr. Patrick Bartel, a registered psychologist, prepared a "dangerous offender assessment" of Mr. Kane. Mr.

Kane refused to meet Dr. Bartel and therefore the report is based on Dr. Bartel's review of Mr. Kane's records, including those relating to his prior convictions, which include pre-sentence reports and psychological assessments. He wrote: Nevertheless, research has demonstrated that assessments based on file review alone can have good validity, particularly as it pertains to addressing risk for violence. [25] I will not review the report in detail because Mr. Kane takes no issue with it, nor with the long-term offender declaration. [26] Dr. Bartel noted that Mr. Kane has an extensive mental health record dating back to his childhood. In 1978, when he was 13, Mr. Kane was admitted to the Nova Scotia Hospital for psychiatric assessment after he reportedly struck his younger sister and threatened family members. In 1980 Mr. Kane was again admitted to the same hospital and diagnosed with paranoid schizophrenic illness. [27] Dr. Bartel concludes that Mr. Kane is at moderate risk for sexual offending and that would involve violent sexual assaults against strangers. IV. requirement 4 - a reasonable possibility of eventual control of risk in the community [28] With respect to the potential to control the risk to the community after Mr. Kane is released, Dr. Bartel said: With regard to the potential for control of risk in the community, it is difficult to determine with any certainty

whether Mr. Kane can be prevented from engaging in further sexual violence. Based on his own history, it would appear that he can function relatively well in the community for extended periods of time. This suggests some degree of potential for successful community supervision. Conversely, Mr. Kane's sexual offences, on the surface, seem to be unpredictable and can occur suddenly after a period of years with no apparent sexual offending behaviour. If he were to be released into the community, I believe he would require very intensive supervision and monitoring with ongoing professional/treatment support. Levels of supervision could be lessened somewhat if, after a period of time, Mr. Kane was able to demonstrate both a long-term period of compliance with court-ordered and parole recommended conditions as well as low risk. [29] The report of Dr. Bartel supports the conclusion that - with treatment in prison and close supervision when released - there is a reasonable possibility of control of risk in the community. V. The length of supervision [30] The report of Dr. Bartel does not provide any specific guidance on the length of supervision. He does say: As little is known about the nature of his risk and dynamics or factors that gave rise to his sexual offending, it will also be important to follow him in the community over a lengthy period so as to ensure public protection and

that he is maintaining whatever gains he is able to make in treatment. From this and the comment quoted in the previous section, it therefore appears to me that Mr. Kane should be ordered to be under supervision for the maximum period of 10 years. VI. Conclusion & Mandatory orders [31] I declare Mr. Kane to be a long-term offender with a supervision period of 10 years. The sentence for the sexual assault causing bodily harm is five years less credit for time served of four years, leaving one year left to serve. [32] There are the following mandatory orders: a. a DNA sample pursuant to s. 487.051(1); b. a lifetime weapons ban pursuant to s. 109(3); c. a sex offender registration order pursuant to s. 490.012(1) to apply for life under s. 490.014(4). "E.M. MYERS, J."