R. v. Walsh

2011 BCSC 1911 R. v. Walsh

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Walsh, 2011 BCSC 1911 Date: 20110524 Docket: 55701-3 Registry: Chilliwack Regina v. Ryan Joseph Walsh Before: The Honourable Madam Justice E.A. Arnold-Bailey Oral Reasons for Sentence May 24, 2011 Counsel for the Crown: J.A. Lester Counsel for the Accused: J. Gustafson Place and Date of Hearing: New Westminster, B.C. June 28, October 3, 5, 6, 7, 12, 13, 14, 15, 18, 19, 20, 21, 25, 26, 27, 2010; January 31, February 1, and 2, 2011 Place and Date of Judgment: New Westminster, B.C. May 24, 2011 THE COURT: Introduction [1] Ryan Joseph Walsh was convicted on March 26, 2009, of aggravated assault and assault with a weapon. [2] The Crown seeks to have Mr. Walsh declared a dangerous offender and sentenced to an indeterminate term of imprisonment or, failing that, a finding that he is a long-term offender and requiring long-term supervision for a period of ten years after whatever term of imprisonment the court considers appropriate. [3] The defence submits that a short further sentence of imprisonment, given the time Mr. Walsh has spent in custody to date, followed by a long-term supervision order for up to ten years will adequately protect the public. [4] Mr. Walsh is apparently the first person in British Columbia to face a dangerous offender application brought pursuant to the recently-amended Part XXIV of the Criminal Code,

R.S.C. 1985, c. C-46, without the option of resorting to the pre‑July 2, 2008 legislative regime generally considered more favourable to offenders. This is because the offences giving rise to this application were committed just over four months after the amendments came into force on July 2, 2008. [5] The predicate offences occurred during a confrontation in the early evening hours of November 21, 2008, in Chilliwack, British Columbia. Following his conviction for aggravated assault, contrary to s. 268(2), and assault with a weapon, a knife, contrary to s. 267(a) of the Criminal Code, counsel for Mr. Walsh sought to have a conditional stay entered in relation to the assault with a weapon offence on the basis of the principle in R. v. Kienapple, [1975] 1 S.C.R.

729. In a ruling on April 23, 2009, the Court held that Kienapple did not apply in these circumstances and thus convictions for both offences are maintained. [6] Prior to his commission of the predicate offences, Mr. Walsh had just finished serving a federal sentence of three years' imprisonment in addition to time served (for a total sentence equivalent to five years imprisonment) imposed on November 1, 2005, for a conviction of aggravated assault that occurred on October 31, 2004. [7] Central to this application is whether, on the basis of this previous conviction and the predicate offences, the Crown has proven a pattern of behaviour as defined in s. 753(1)(a)(i) or (ii) of the Criminal Code. [8] These proceedings involve a very serious matter. A dangerous offender designation and the imposition of an indeterminate sentence are among the most severe sanctions available under our criminal law. The vast majority of offenders designated to be dangerous offenders who receive an indeterminate sentence spend decades of their lives in prison with little or no real likelihood of rehabilitation leading to lasting release. [9] Mr. Walsh is a young man, presently 25 years of age. If Mr. Walsh receives an indeterminate sentence, he will likely be deprived of his liberty for many years in the future, and, if released, will be subject to supervision in the community and the risk of being

returned to prison. Preliminary and Procedural Matters [10] In a dangerous offender application, there are both procedural and substantive requirements to be met. [11] In terms of the procedural requirements, at the conclusion of the trial and before the imposition of sentence, the Crown made an application that Mr. Walsh be remanded for a dangerous offender assessment pursuant to s. 752.1(1) of the Criminal Code. Based on the evidence, the Court was of the opinion that there were reasonable grounds to believe that Mr. Walsh might be found to be a dangerous offender under s. 753 or a long-term offender under s. 753.1 and an assessment was ordered. The assessment was conducted by Dr. Patrick Bartel, a forensic psychologist. Dr. Bartel's report dated January 5, 2010, was filed with the Court. [12] The pre-conditions for the hearing of this application, as set out in s. 754(1) of the Criminal Code, have also been met. On April 21, 2010, the consent of the Attorney General was given (Exhibit 1). Notice of the application and its basis, dated June 16, 2010, were served on Mr. Walsh and his counsel (Exhibit 2). [13] I find that the procedural requirements have been complied with. [14] The law is clear that an offender may be found to be a dangerous offender on the basis of any one of the three subsections contained in s. 753(1)(a) or on the basis of s. 753(1)(b): R. v. Lewis (1984),

12 C.C.C. (3d) 353 (Ont. C.A.); R. v. Dow, 1999 BCCA 177 at para. 13. [15] The Crown provided notice to Mr. Walsh that it was seeking to have him declared to be a dangerous offender in relation to the three grounds contained in s. 753(1)(a), but relies primarily on s. 753(1)(a)(i) and (ii), respectively, which are: 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 ... [Emphasis added.] Issues [16] The key issue is whether or not Mr. Walsh meets the legal criteria for a dangerous offender and, in particular, whether the two offences of aggravated assault, including the accompanying predicate offence of assault with a weapon, constitute a "pattern" of behaviour as defined in either s. 753(1)(a)(i) or (ii). [17] Consequently, the issues to be decided in this application are: 1. Whether the evidence proves beyond a reasonable doubt that Mr. Walsh is a dangerous offender pursuant to s. 753(1)(a)(i), based on a "pattern of repetitive behaviour by the offender, of which the offence for which he ... has been convicted forms a part, showing a failure to restrain his ... behaviour and a likelihood of causing death or injury to other persons through ... failure in the future to restrain his ... behaviour." 2. Whether the evidence proves beyond a reasonable doubt that Mr. Walsh is a dangerous offender pursuant to s. 753(1)(a)(ii), based on a "pattern of persistent aggressive behaviour by the offender, of which the offence for which he ... 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 ... behaviour." 3. If Mr. Walsh is found to be a dangerous offender, whether the Court is satisfied that there is a reasonable expectation that a lesser measure other than a sentence of imprisonment for an indeterminate period will adequately protect the public against Mr. Walsh committing murder or a serious personal injury offence in the future (s. 753(4.1)).

4. If Mr. Walsh is not found to be a dangerous offender, whether the Court is satisfied that Mr. Walsh meets the criteria for a long-term offender contained in s. 753.1(1), including that the offence for which he was convicted appropriately carries a sentence of two or more years of imprisonment, there is a substantial risk that he will re-offend, and there is a reasonable possibility of eventual control of the risk he poses in the community. If he meets these criteria, the Court must consider what length of additional imprisonment and what length of long-term supervision order should be imposed. [18] If Mr. Walsh is not found to be either a dangerous offender or a long-term offender, the Court may impose the definite sentence it considers fit for the offences for which Mr. Walsh has been convicted that takes into account pre-sentence time spent in custody. Evidence at the Hearing [19] The Court heard a considerable amount of evidence about Mr. Walsh and his life to date. The Court reviewed documents that relate to his offending as a youth, steps taken in the community to try and assist him, his first adult offence that resulted in the equivalent of a five-year sentence, the time he spent in federal prison, the violent offender treatment he participated in while incarcerated and in the community, several suspensions of his statutory release in 2008, and his reoffending within

three weeks of the warrant expiry date of the prior sentence. [20] The Court received evidence as to Mr. Walsh's personality and future risk of violent reoffending from two forensic psychologists and a forensic psychiatrist, all of whom prepared detailed assessment reports, one of whom was called by the defence. [21] Mr. Walsh's girlfriend, Ms. Tanya Gagne, her mother, and stepfather testified in support of Mr. Walsh's release into the community. [22] Mr. Walsh chose not to testify in these proceedings as is his right. The Court acknowledges that the burden of adducing evidence to meet the dangerous offender or long-term offender criteria rests with the Crown. Several Brief Matters [23] Before moving to a consideration of the issues and the evidence, several brief matters require comment. [24] First, I note that as a youth Mr. Walsh was not convicted of assault causing bodily harm as is misreported in some of the materials. In a Youth Court disposition on May 25, 2001, he pleaded guilty to a charge of assault in response to being charged with assault causing bodily harm. [25] I further note, in keeping with the admissions in Exhibit 42, that although the report of Dr. LaTorre remains in evidence without him being called as a witness, certain portions of his report are to be given no weight. In my review of the evidence I have been mindful of this limitation. Further, I have

given no weight to the comments and conclusions of other professionals assessing Mr. Walsh when they have referred to Dr. LaTorre's findings. This is particularly important as the Crown was originally intending to call Dr. LaTorre; therefore, aspects of his findings, opinions, and risk assessment in relation to Mr. Walsh were put to other psychologists and a psychiatrist, Dr. Lamba, for their comments. [26] When considering the information before McEwan J. at the sentencing for the first aggravated assault conviction, I will make reference to the admissible portions of Dr. LaTorre's report dated August 15, 2005, prepared at the request of the Court. [27] The Court was advised, generally, that Dr. LaTorre had been subject to adverse judicial criticism in another case and a complaint had been made about him to the College of Psychologists of British Columbia. The Crown advised that calling him in this case would have precipitated late third-party disclosure applications for certain records and delayed these proceedings. As an alternative, the admissions contained in Exhibit 42 were made. Mr. Walsh's Background [28] Different sources in the evidence set out aspects of Mr. Walsh's background in considerable detail. I have considered those accounts. A brief overview is helpful. [29] Mr. Walsh was born on March 15, 1986. At the time of this hearing, he was 24 years old. He is now 25

years old. [30] He was raised by his mother without contact with his biological father. He experienced health issues in his early years; however, his physical and mental development was normal. He exhibited serious anger and aggression behaviours as a young child that made it hard for his mother to look after him. He was exposed to significant family violence in the home as between his mother and male partners. Mr. Walsh came to his mother's aid when she suffered physical and mental abuse at the hand of his stepfather. Mr. Walsh was physically and mentally abused by this individual as well. [31] After living out of province, Mr. Walsh and his mother returned to British Columbia in 1994. His mother apparently separated from his abusive stepfather in 1995. Mr. Walsh and his mother settled in Chilliwack, where his mother worked as a nurse. [32] Just prior to turning 13 years old in February 1999, Mr. Walsh was removed from his home and placed in foster care as he was causing difficulties and threatening his mother's then common law partner. After a brief return home, he was placed in foster care by agreement for six months beginning in March 2000. [33] Mr. Walsh did well in the first few years of school, but by grade 5 he was experiencing difficulties getting along with others. While generally considered to be bright, Mr. Walsh had many behavioural issues and conflicts with staff

and others in school and those difficulties, coupled with non-attendance, resulted in his not completing the regular school program past grade 7. He was often suspended and in grade 8 he was expelled. In the years that followed, he attended various alternate educational programs. [34] He fell into a bad crowd of peers and became very involved in substance abuse in relation to a wide range of substances including hard drugs. In interviews with various professionals over the years, Mr. Walsh has referred to many unlawful acts committed by him regarding property or drugs to support his drug habit and lifestyle for which he was never caught and prosecuted. I note that these comments have no legal relevance to this application but are part of Mr. Walsh's social history. [35] His history of employment is in short-term, low-paying, entry-level jobs when not in custody. [36] Depending on which report one reads, he either had many casual sexual relationships starting at age 13 or 14 or exaggerated such accounts. He also had several more serious relationships lasting several months. [37] He first became involved with the Youth Court justice system for the offence of threatening, which occurred between November 1 and December 10, 2000, when he was 14 years of age. Thereafter, until he became 18 years old, Mr. Walsh had some involvement with the courts and considerable contact with various

social agencies and programs for the purpose of assisting and supporting him in pro-social activities, unfortunately without any lasting effect. Mr. Walsh's Troubled Youth and Youth Convictions [38] Mr. Walsh's youth record was before the Court. He entered a guilty plea to threatening another young person in relation to an incident regarding the alleged theft of a bicycle. The threats were made by Mr. Walsh and another youth. The alleged thief was to pay $250 to the young person who was missing his bicycle by a specified time, which apparently he did not do. Mr. Walsh approached the alleged thief and told him that he had three days to pay for the bicycle or his friends would "curb stone" him. That is a direct quote from the transcript and it is likely the word "stomp" not "stone." The other youth allegedly threatened to break into the home of the alleged thief and kill everyone in his family. [39] Counsel representing Mr. Walsh at the time said that Mr. Walsh remembered the threat was to the effect that the alleged thief would get beaten up if he did not pay. The judge was advised that Mr. Walsh was doing grade 9 at Chance Alternate School and was hoping to get back into the regular school system. His mother was in court and told the judge that he had been in foster care but returned home in October 2000. She asked for a curfew. The judge imposed a disposition of one year

probation with terms that included that Mr. Walsh was to reside at home; attend school; report to a probation officer; abide by a 9:30 curfew; have no contact with a number of persons including Ryan Cummings; perform 10 hours of community work service; not possess or consume alcohol or non-prescription drugs; and not possess any weapons. [40] Mr. Walsh's next Youth Court convictions pertain to several separate matters disposed of on May 25, 2001, by which time he had turned 15 years old. The first incident concerned a 13-year-old paper boy who, on September 22, 2000, after his papers were set on fire, was knocked to the ground and kicked by a group of four young males, of which Mr. Walsh was one. The paper boy was kicked in the leg but otherwise uninjured. An off-duty police officer approached the scene just as the four males were walking away. The officer was unable to say who was directly involved in assaulting the paper boy. The four males gave the officer false names. Mr. Walsh pleaded guilty to obstruction. [41] The next matter dealt with a charge of assault causing bodily harm to which Mr. Walsh entered a plea of guilty to assault. The assault occurred on September 30, 2000, and involved a young male who called the police and said that he and his male friend had just been assaulted by a group of young people. Police located his friend and observed that he had blood coming

from his nose and swollen eyes. An ambulance was called. It was determined that Mr. Walsh was among the group of males involved. Subsequent enquiries by the police at school revealed that the victim had previously struck Mr. Walsh's girlfriend. Mr. Walsh had been involved in the assault by holding the victim down. The victim recalled members of the group punching him, but he could not recall who did exactly what. He had headaches for several days later. Mr. Walsh indicated to the police in his statement that he assaulted the victim because the latter had assaulted his girlfriend. [42] Also dealt with by a guilty plea on the same date was a breach of probation charge relating to Mr. Walsh failing to attend school, a term of the earlier probation order imposed on January 19, 2001. Mr. Walsh had been absent from school without being excused for approximately 40 days since the prior September. The Vice Principal of Chance Alternate School, in a letter to the court, indicated that there had been some serious problems with Mr. Walsh's behaviour at school. [43] The last matter dealt with on May 25, 2001, was a breach of the earlier probation order by Mr. Walsh having contact with Ryan Cummings on April 4, 2001, the latter having also been involved in the paper boy incident. [44] In his submissions on May 25, 2001, defence counsel advised the court, as set out in the pre-sentence

report, that Mr. Walsh had a difficult early life, including extreme domestic violence at home; that he was capable of at least an average level of learning; and was reasonably intelligent and a bright student. It was also noted that Mr. Walsh had counselling in the past for suicidal feelings and there were difficulties with his absent father in Alberta who was terminally ill. [45] Mr. Walsh admitted to a drug addiction for which he was willing to receive assistance. Mr. Walsh was said to recognize a connection between his bad judgment leading to bad behaviour and his use of drugs, and that he needed some new friends. [46] The prosecutor in his submissions indicated that he had reviewed the probation terms with Mr. Walsh and Mr. Walsh agreed to abide by them. [47] At the time of sentencing, Mr. Walsh had been in custody for 26 days and the judge decided that, "in the special circumstances of this case, further incarceration is not required." He imposed 18 months probation on all charges and terms that included reporting to a Youth Court worker; residing as directed; abiding by a curfew from 9:30 p.m. to 7:00 a.m., unless in the company of his mother or with the written permission of his Youth Court worker; to successfully complete counselling; to attend and successfully complete a program for drug and alcohol misuse; no contact with a number of individuals including Ryan

Cummings; and 40 hours of community work service. [48] About two months later, on July 27, 2001, Mr. Walsh was again in Youth Court and on that occasion entered a guilty plea to attempt break and enter of a residence and breach of probation for not residing at home. On July 20, 2001, Mr. Walsh was observed trying to break into a residence by a neighbour through a rear window. When approached, Mr. Walsh said it was his grandparents' house but could not provide their names. The neighbour called the police. Mr. Walsh fled, but was kept in sight until the police arrived. Mr. Walsh told the police that he was just trying to get into the house for money in order to survive. When the police contacted Mr. Walsh's mother, she indicated that he had not been residing at home for a month. [49] The breach charge arose from the term of the probation order imposed on May 25, 2001, that required Mr. Walsh to reside as directed, and his Youth worker had directed that he reside at home. His Youth Court worker, Mr. Quilty, advised the court of the resources that he had made available to Mr. Walsh after his court disposition in May, which included a referral for one-to-one support, educational programs, drug and alcohol counselling, and a referral to the Youth Forensic drug and alcohol treatment and residential treatment through the Salvation Army, in the hope of getting him into the first

available drug treatment program. Mr. Quilty advised that he learned from Mr. Walsh's mother that there were concerns immediately upon Mr. Walsh's release about whether he was adhering to the conditions of his probation, including the residence condition. Mr. Quilty indicated that Mr. Walsh had advised him that he had a drug problem, was addicted to speed, and was "supporting his addiction through criminal activity in our community." He supported the Crown's request for several months in custody because efforts to get Mr. Walsh into treatment in the community had failed. Mr. Quilty recommended a particular youth custodial facility mainly focussed on drug and alcohol issues and follow-up residential treatment in the community. Mr. Quilty also recommended that Mr. Walsh participate in the Youth Violence Intervention Program in Chilliwack offered through Youth Probation, and the imposition of a number of the same prior probation conditions. [50] In sentencing Mr. Walsh on this occasion, the judge made reference to the number of recent dispositions and that matters "seemed to be escalating in terms of the seriousness." He made reference to the serious nature of the offence of attempting to break and enter someone's home and imposed a sentence of 45 days open custody for the attempted break and enter and 15 days consecutive for the breach of probation charge. [51] Provided in

evidence was a report card with regard to Mr. Walsh's participation in three sessions in June and July 2001 of the Youth Violence Intervention Program. The instructor indicated that module 1 "defines the critical concepts of anger and aggression and the association with violent behaviour" and noted: When Ryan was in attendance his attitude and participation was good. He always has something to say, and was willing to talk about some of the things going on in the community that were bothering him. Ryan would benefit from more Y-VIP classes. Our discussions about anger, aggression, and violence revealed some beliefs Ryan holds that could lead to negative behaviours. [52] Also provided was a letter from the same Vice Principal of Chance Alternate School previously referred to, who noted Mr. Walsh's poor conduct at school. She indicated that he was "oppositional and abusive to others" and when sent home for it did then not return for several days without offering a reason for his continued absence. She noted that "many of Ryan's absences have resulted from his oppositional and extremely disrespectful behaviour towards staff." Mr. Walsh was not in school because after many suspensions his behaviour had necessitated a meeting with the District Principal of Alternate Education to gain re-entry and he had not set up such a meeting. The Vice Principal notes, prior to recommending a

program of intensive supervision and support and a referral to youth futures for Mr. Walsh, that: Ryan is a very bright student. When he wants to be, he is respectful, and courteous. However, until he accepts responsibility for his actions, and shows respectful behaviour towards others on a consistent basis, I am afraid that Ryan will continue to experience frustration and disappointment in life. [53] On September 27, 2002, Mr. Walsh was again in Youth Court and entered pleas of guilty to breach of probation for failure to abide by his curfew and for having contact with Ryan Cummings. The circumstances of both breaches related to incidents in July 2002. [54] On July 6, 2002, the police responded to a complaint of a mischief in progress and found a vehicle at 12:29 a.m. being driven erratically in a park, tearing up the grass. The vehicle contained four males, one of whom was Mr. Walsh. [55] On July 10, 2002, the police found Mr. Walsh and Mr. Cummings together in a breach of the no contact term of Mr. Walsh's probation. [56] On July 29, 2002, at 11:20 p.m., a police officer responded to a possible break and enter in progress and found a group of males and females pointed out by security. Mr. Walsh was in that group in breach of his curfew and was arrested. [57] The Youth Court worker advised the court that since Mr. Walsh attended Exodus, a residential alcohol and drug

treatment program, his mother had advised that his behaviour had improved overall, with the exception of these incidents, and that his behaviour continued to improve. Also, although he used alcohol occasionally, his involvement with illegal drugs had more or less subsided. He had also successfully completed other programs and had attended the Chilliwack Alcohol and Drug Services on an outpatient basis. Mr. Walsh met with DARE workers for six months on a regular basis. I note that in evidence are their monthly reports from January 2001 to May 2003. [58] Out of custody, Mr. Walsh received considerable support from his support workers for things like medical and dental appointments, recreational activities, and coordination of his living arrangements. Mr. Walsh also had guardian support involvement with his family for six months and had attended the Youth Violence Intervention Program when in custody. He was reported to be attending Chilliwack Senior Secondary where he was taking a mix of grade 10 and 11 courses, apparently on a regular basis. Mr. Walsh was also recovering from wrist surgery and hoped to get part-time employment. [59] Mr. Walsh's mother addressed the court and said that Mr. Walsh had chosen to return to public school despite being kicked out and that he had been going every day, doing his homework, and keeping his curfew. She also indicated that he had received

his one year cake from Narcotics Anonymous for having dealt with his cocaine addiction. [60] The judge found that it would be unproductive to return Mr. Walsh to custody given his progress and imposed a further nine months' probation on essentially the same terms and 24 hours of community work service. The judge found it very impressive that Mr. Walsh had the courage to return to school. [61] Mr. Walsh's last disposition in Youth Court occurred on August 15, 2003, when he entered a plea of guilty to one charge of breach of probation, a curfew violation, from January 23, 2003. The court had received an updated pre-sentence report. The Crown indicated that Mr. Walsh had been doing well for the last year, had on-call employment, and planned to return to school in September to complete his grade 12. Apparently, on the occasion of the breach Mr. Walsh had his mother's oral permission, but not written permission as required. His probation had ended July 30, 2003. [62] Mr. Walsh told the Court that he had "been around the block and back from the last three or four years..." and that he was trying to clean up as he was almost an adult and wanted "to get his life straight and priorities set, move on up in the world." He was applying for part-time work at McDonald's. The court stood the matter down until Mr. Walsh came back later that day after handing in his application for employment.

The court imposed a $25 fine. [63] In addition to the youth probation records for this period that indicate very active supervision, in evidence are records from the Fraser Youth Intensive Support and Supervision Program commencing March 31, 2003 to August 11, 2003, that indicate that workers attended regularly at Mr. Walsh's home. There were many curfew violations, an incident of him being under the influence, and toward the end a "blanket consent" note from his mother permitting him to be out of his residence after the curfew. [64] I note that Mr. Walsh's involvement with Youth Court, intensive youth probation, alternate schooling, and a host of other programs, including a youth violence program, were all directed at supporting him in adopting pro-social attitudes, addressing his substance abuse problems, and curbing his inclination to associate with negative peers and his tendency to react violently in certain situations. [65] There was one period when he appeared to be doing well. Unfortunately, things did not continue to go well for Mr. Walsh. [66] Little is known about what Mr. Walsh did between August 2003 and October 31, 2004, when he committed his first offence as an adult. Mr. Walsh's First Aggravated Assault Committed at Age 18 [67] In reasons for judgment in R. v. Stewart and Walsh, 2005 BCSC 1818, McEwan J. made various findings of fact in relation to the incident

that gave rise to Mr. Walsh's first adult conviction. [68] The aggravated assault occurred on October 31, 2004, after a house party on Halloween night emptied onto the street and two males were observed vandalizing a parked truck belonging to Mr. Wilson, a neighbour. Another man, Mr. McDougall, and Mr. Wilson went out into the street to discourage damage to his truck. They encountered Mr. Walsh and an associate, Mr. Stewart. Mr. McDougall engaged Mr. Stewart. Mr. Wilson encountered Mr. Walsh, who hit him more than once in the head with a hammer that had previously been used to set off fireworks that night. [69] The following paragraphs from those reasons are relevant to these proceedings: [4] The charges arise in the aftermath of a Halloween gathering at the home of Melissa Dargatz, a student and a school mate of the accused. The evidence was that various groups of young people of approximately Ms. Dargatz' age gathered at her home that night. Her parents were not there and she said that the gathering started to get rowdy quite quickly. There was some playful pushing and shoving that included Mr. Walsh and Mr. Stewart and people were beginning to spill liquor in the house. Ms. Dargatz decided that she should shut the party down and began getting people to leave. [5] She said Mr. Stewart was quite intoxicated but that Mr. Walsh appeared to be in better command of himself. There

was no resistance to her getting people out of the house, although it took some time. It was clear that several young people were moving out of the house for a period of time and standing around outside. Ms. Dargatz recalls that it reached a point where everyone had left except for two friends she was talking to in an upstairs landing. [6] The Dargatz home is one of a series of detached dwellings in a strata subdivision. Garry and Jan Wilson lived across the street from the Dargatz residence. Irene Kostiuk lived next door to the Wilsons, also across the street from the Dargatz residence. [7] Mr. Wilson's truck was parked across the street from the house on a strip of pavement that allowed vehicles to be parked off the street. This strip of pavement abutted the Dargatz property and a patch of lawn that abutted the street itself. [8] Irene Kostiuk arrived at her home that evening sometime, she estimated, between eight or 8:30. She noticed a number of young people around. She thought they were too old to be out trick or treating. She telephoned the Dargatz home and had a brief amicable conversation with Melissa Dargatz. [9] She said there was some noise later including fireworks. She looked out at one point and saw two or three young people kicking in the door of Mr. Wilson's truck. She saw one apparently wrestling off the mirror and another in the back peeling off a blue tarp.

She called Mrs. Wilson and told her that she had seen people trashing their truck. Jan Wilson reacted by telling a houseguest, Scott McDougall, what was happening. Mr. Wilson had dozed off in a chair and he was roused by Mr. McDougall, who touched him as he was on his way out the door. Mr. McDougall went out with Jan Wilson, followed a little behind by Garry Wilson. [10] What Mr. McDougall says he saw was two young people at the truck. He said the one closer to the front had a hammer in his hand. He asked what they were doing. The tarp was half pulled out of the truck. He described one young man on either side of him. He spoke to the young man with the hammer, saying something like "if you are going to use it you had better be willing to use it". He said the other fellow was trying to get a grip on him. He engaged this young man and said the one with the hammer went over toward the Dargatz residence by the neighbour's lawn. [11] Mr. McDougall positively identified Mr. Walsh as the person with the hammer and Mr. Stewart as the person he engaged. At one brief interlude in his dealings with Mr. Stewart, Mr. McDougall says he saw Mr. Walsh trying to ignite some fireworks with a hammer. He says he then became preoccupied again with Mr. Stewart. He then heard Jan Wilson scream and saw Mr. Wilson down and the fellow with the hammer standing over him. [12] What Mr. Wilson described was

seeing Mr. McDougall dealing with two people he appeared to be trying to restrain, then veering off to see if someone who had gone by him had gone into the Dargatz house. He then remembers being struck suddenly on the left side of his head and passing out. [13] Jeanette Wilson described seeing Mr. McDougall over at the truck with one person at the back of the truck and one at the side. She saw the person at the side "crank" the mirror on the truck. She said the two were also kicking the truck. She saw two people closing on Mr. McDougall, then saw him engaged with only one. She then heard someone say, "I'll kill you, you fucker," and saw Mr. Wilson already on the ground. She said she saw a boy with a hammer hit him again, when she intervened. She said a girl asked, "What the fuck do you think you're doing," or, in a later version, "Are you fucking crazy," and that Scott McDougall was then there. She said someone was still trying to kick at Mr. McDougall while he was bending over Mr. Wilson. Ms. Wilson said she could not identify the person with the hammer. [70] McEwan J. made the following findings on the evidence. He convicted Mr. Walsh of the aggravated assault of Mr. Wilson and acquitted him of mischief in relation to damage to the truck and possession of a weapon, the hammer, for a purpose dangerous to the public peace: [21] Respecting Count 1, the injuries suffered by Mr.

Wilson support an aggravated assault charge within the meaning of s. 268(1), that is, "everyone commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant." There is no question that it was Mr. Walsh who inflicted the harm upon the Mr. Wilson. Apart from the positive identification of Mr. McDougall and other strong evidence placing the hammer in his hands before and at the time the blows were struck, Mr. Walsh admitted hitting Mr. Wilson with the hammer to the occupants of the vehicle that picked him up after the fact, Mr. Matheson and Mr. Van Donk. He did so as well in his statement to the police officer, Cst. Menard. [22] Mr. Walsh's defence for applying this force in this manner is that he was doing this in self-defence. The only evidence to support this was his own statement to Cst. Menard. His version was as follows: Cst. Menard: Okay. So you ‑‑ you're breaking my truck. I'm ‑‑ I'm sorry ‑‑ or, breaking into my truck? Mr. Walsh: That's what he said when he came out and he was ‑‑ my buddy was standing right in the middle of the road, fuck, and he busted his lips and that's what happened. And then everybody comes up and fucking I was trying to break it up and fucking both of them started feeding me shots and the one guy was like oh, you're going to hit me with a hammer. I was like well fuck, don't hit me again I'm gonna fucking smash

your beak and then fucking and he started punching me out and then fucking so I ‑‑ I hit him back because I wasn't gonna fucking get punched out on Halloween night ‑‑ night, let it ruin my night. And then that fucking old bitch fucking kicked me right in the balls. I was just defending myself. I didn't fucking just go up and smash him with the hammer or nothing. That's what you get for picking on an 18-year-old kid with a hammer, like, there was like fucking 20 of us in that house. Like who's smart enough to do that? Like you put two and two together like, uh, it's amazing what people do, though, it's so dumb. That's what happened. [23] All this must be put together with the evidence of Mr. Wilson as to the suddenness and unexpectedness of the attack, the nature of the wounds themselves, including their location on Mr. Wilson's body, and Mr. Walsh's own previous remarks to Mr. Matheson, that he said someone came at Butch and he hit him with a hammer, and that of Mr. Van Donk, who said that Mr. Walsh said he had got into trouble at Melissa's and done something real stupid, that one of the neighbours came outside and that he [the neighbour] hit Butch, so he hit the neighbour with a hammer. There was no suggestion of self-defence in those statements. [24] I must consider the evidence of Jeanette Wilson as well and the small lapse of time between Mr. Wilson's emergence from the

house and when he went down. [25] Taking account of all the evidence, Mr. Walsh's statement to the police, to the extent it is exculpatory, is not credible or in accordance with any of the other known facts. I am satisfied beyond a reasonable doubt that each of the elements of Count 1 have been proven by the Crown and I, therefore, find Mr. Walsh guilty of aggravated assault as charged in Count 1. [71] At the sentencing hearing in relation to this matter, McEwan J. heard evidence from Mr. Walsh's mother; Dr. LaTorre, a psychologist assigned by the Forensic Psychiatric Institute to prepare a psychiatric assessment of Mr. Walsh; and Mr. Walsh himself. [72] McEwan J. also received two pre-sentence reports prepared by Ms. Graham, a probation officer, dated July 14, 2005 and August 23, 2005, which are in evidence (Exhibit 26, Tabs 1 and 2). Both reports contain detailed information about Mr. Walsh and his childhood that are indicative of very serious domestic abuse of his mother by his stepfather. Ms. Graham reported that when Mr. Walsh was about eight to ten years old he assumed the role of protector of his mother against his stepfather. His stepfather was physically violent and abusive of him on numerous occasions. A subsequent relationship of his mother's was also abusive. Of note in the later pre-sentence report is information regarding the effects of the aggravated assault upon

Mr. Wilson and his wife. Mr. Wilson reported that the effects of Mr. Walsh's assault upon him had been "vast," and that he had suffered physically, emotionally, and financially. Ms. Graham wrote at p. 5 of her report the following about Mr. Wilson: The three strikes to the head with the hammer that he received left him with two compressed skull fractures which required that he be rushed to Royal Columbian Hospital for immediate surgery to reduce the pressure on his brain. He advises that his surgeon felt that he was fortunate to have survived the attack. He has sustained a significant loss of hearing and a minor reduction in speech ability due to the injuries that he sustained. He also advises that his thought processes have been reduced as well as his ability to access his memory. Both Garry and his wife advise that they still fear for there [sic] safety in their own neighbourhood and that they become very frightened during times when there are parties occurring in the area. Janet witnessed the assault of her husband and admits that she believed that he was dead when she reached him. She has suffered nightmares and fatigue due to the memories of the attack and the fear that it could happen again. At the time of the assault Mr. Wilson was self-employed renovating and selling houses He has not been able to return to this line of work as his hearing reduction leaves it unsafe for

him to be on a job site. He reports that when he does any yard or maintenance work to his home it is necessary for him to wear a hard hat due to the large indentation left in his head from the injuries and the resulting surgeries. The Wilsons had been planning for their retirement by investing in guaranteed segregated funds which were to mature four years after the assault on Garry. Due to his inability to return to work they made the decision to cash in the segregated funds early in order to provide income for them while he was unable to work. He advises that this means that they lost nearly $200,000 from what they would have received had they [sic] funds been allowed to mature. This is above the annual income loss of approximately $50,000 a year. [73] In the same pre-sentence report, at pp. 6-7, Ms. Graham states the following about Mr. Walsh's attitude and understanding regarding the offence: Ryan's understanding regarding the effects of this assault on the victim is minimal, although he does evidence a greater understanding at present than he did at the time of his interview with the police when he was arrested. When asked to explain what he feels the consequences of his actions may have been for the victim and witnesses to this offence he is easily able to describe possible physical consequences for Mr. Wilson. He further states that it must cause Mr. Wilson to feel

apprehensive of men in Ryan's age group and he may not trust individuals as easily. Ryan further states that he is aware that the Wilson family must hate him. He is unable to view the more lasting financial and emotional impacts of his actions. [74] In the oral reasons for sentence, McEwan J. noted the following and quoted portions of Dr. LaTorre's report (counsel in these proceedings agree they are admissible): [7] This is, in other words, Mr. Walsh's first adult offence. The probation officer's observation of Mr. Walsh was that his understanding of the effects of his assault was minimal. Dr. LaTorre's observation included testing which placed Mr. Walsh above the cut score, that is, the definition, for psychopathy. He concluded in his report: Consequently in a) reviewing the psychopathy checklist that really identifies psychopathy, although it has been shown to relate to future violence; b) using an actuarial test of future violence, although the violence that it predicts to can have various degrees of seriousness and the test was standardized on a select sample not necessarily generalizable to an individual such as Mr. Walsh; and c) using an aide-memoire that is essentially a guide for clinicians to ensure they do not omit important considerations, all appear to suggest a relatively high risk of future violence. In considering any clinical overrides to this, I have reviewed

that Mr. Walsh's violence began relatively early in life and has not only continued but has appeared to escalate. I have considered that violence has been a part of his life more generally and that the amount of violence we are aware of is only a small portion of the total violence, e.g. consider the concussions he said he suffered, the bone transplant he required because of a fight, the stabbing he has seen and his involvement in organized crime. This is an individual who appears to have been well immersed in criminal and antisocial behaviour. Additionally, he was exposed early to what has been identified as some significant and traumatic domestic violence. Mr. Walsh presently appears to justify his violence and tends to project blame for his violent behaviour onto others, including the victim. My opinion therefore is that if Mr. Walsh were released into the community today without effective treatment, his risk of violence over the next few years would be relatively high to very high. [75] Counsel in the present case agree that portions of Dr. LaTorre's report, at p. 4 - 5, which were before McEwan J. when he reported Mr. Walsh's comments to him in relation to the offence, are admissible for consideration in these proceedings and again I quote Dr. LaTorre's report: At interview I asked Mr. Walsh if he could identify the impact he thought his behaviour might have had on the

victim. He said, "What impact I don't know how to describe it really sort of surreal how everything happens probably locks his doors at night. Since it was Halloween isn't going to hand out candles [sic] again maybe call the Police next time instead of taking things into his own hands. I asked Mr. Walsh how he generally felt about his committing the offence at this point. He laughed and then said, "My mind's like at a standstill with it because I can't remember what happened I wouldn't hit this guy a couple of times with a hammer or hit him with it when he's on the ground I've been told there's no stopping me when I feel justified I know it's pretty serious at the time I felt it was the only way to stop all the violence." At this point Mr. Walsh attempted to project some blame onto his acquaintances who were present that night noting that they merely watched and "they were just letting it happen". [76] Dr. LaTorre recommended to McEwan J., at para. 8, that Mr. Walsh take the Intensive Violent Offender Program or Personality Disordered Violent Offender Treatment Program conducted by the Correctional Services of Canada ("CSC"), which required a federal sentence of at least two years and that this be followed by a relapse prevention program for violence "particularly during any community release." Dr. LaTorre also identified that "substance abuse is a significant factor in this

case." [77] In the oral reasons for sentence, McEwan J. noted: [13] At the hearing of this matter I heard from Mr. Walsh's mother. She described a difficult and trying time with Mr. Walsh as he was growing up, partly due to family circumstances and partly, it appears, due to traits or habits inherent in Mr. Walsh himself. He seriously abused a number of different drugs from the age of 14 on, and became, at times uncontrollable. There was actually one brief period in a foster home. Mr. Walsh's mother is employed and says she is prepared to make whatever sacrifices she must in order to support him, including reducing her hours of work and adjusting plans to marry, to help him get established on a more positive path. [14] Mr. Walsh testified as well. While he apologized for what he had done and said he took responsibility, he also still apparently harbours a notion that he was, at least in part, doing the right thing, defending a friend or defending himself when the incident occurred. He said he was frustrated that others did not help... [78] In deciding that a significant sentence of imprisonment for this offence was required because of its circumstances and the need to impose a denunciatory sentence, McEwan J. declined to consider a conditional sentence order and imposed a sentence of three years imprisonment in addition to the equivalent of two years pre-sentence custody. He

commented: [20] The violence was extreme and the weapon used potentially lethal. Mr. Wilson, the person who was assaulted, was struck more than once. The sentence must reflect the seriousness of the offence, demonstrating to others, that is, to the public, that such behaviour will not go unpunished. It must also address deterrence of Mr. Walsh himself. In this regard his record is relevant. He has already served a custodial sentence to little apparent deterrent effect. I am of the view that until Mr. Walsh has had an opportunity to reflect upon and address his behaviour with rehabilitative assistance, if possible, he should be separated from the community. ... [23] ...Having done so, I consider this a grave offence which might, but for the medical attention Mr. Wilson received in the immediate aftermath, have resulted in his death. [79] In R. v. Walsh, 2007 BCCA 173, an appeal from that sentence, Chief Justice Finch dismissed the appeal. The sentence imposed was not considered unfit "having regard for the gravity of the offence and taking into account the appellant's youth and his prior history," nor was he persuaded that McEwan J. had erred. Madam Justice Saunders, concurring with Chief Justice Finch in upholding the sentence, echoed the sentiment of Mr. Justice McEwan and stated: [6] I would add these comments that the offence here was a grave one. We simply cannot have a

community where a person takes a weapon to someone else's head and causes injury without they, themselves, paying the price with serious consequences. [7] Mr. Walsh is very young. He has apparently made good use of the programming that is available to him in the federal penitentiary system and that is, for both him and the community, a good thing. I would express my hope that he will continue to take advantage of whatever else might be made available to him while he is in prison and also take advantage of what is made available to him, when he is released. There will be help made available to him and in that way he might become a contributing member of the community and have a more satisfying future. As a young man, he is looking to his future and I would hope that this will provide him a chance to learn from this past wrong. Mr. Walsh in the Community on Statutory Release from October 31, 2007 to November 1, 2008 [80] After serving the required portion of the three-year sentence imposed for the aggravated assault on November 1, 2005, Mr. Walsh was released on statutory release on October 31, 2007. His prior applications for day parole and full parole had been denied. The conditions attached to his release by the National Parole Board were that he follow psychological counselling, abstain from intoxicants, and that he not associate with persons he knew or had reason to believe

were actively involved in crime and/or the illicit drug trade. Initially upon his release he was required to live in a community correctional centre, but then at his request he was permitted to move to reside with his mother. He remained in the community under the supervision of a parole officer from October 31, 2007 to March 21, 2008. [81] The Court received evidence from three police officers who had interactions with Mr. Walsh during the period of his community supervision. Constable Alexander [82] With the consent of counsel, Constable Alexander's evidence was admitted through a "will say" statement (Exhibit 35) which is summarized by the Court. [83] On February 8, 2008, Constable Alexander of the RCMP was working in the Drug Section in Chilliwack, British Columbia. Constable Alexander spoke with Ryan Walsh, who was in a vehicle in the company of Randy Norton and Lena Dove. The vehicle was stopped because Constable Alexander and her partner had observed Mr. Norton to be speaking with Richard Blackmon, both known to the police, in the vicinity of a known drug trafficking residence. Mr. Blackmon was considered by the police to have a more violent and extensive criminal record than Mr. Norton, who was believed to be involved in drug trafficking. Mr. Walsh was co‑operative. He provided identification and indicated that he was living with his mother and doing construction work.

He also provided his parole officer's information. None of the individuals identified by the police were found to be committing any criminal offence or under the influence of any intoxicants. Constable Alexander notified Mr. Walsh's parole officer by telephone that Mr. Walsh had been in the company of persons of interest to the police. Constable Robert Krempaux [84] Constable Krempaux, a member of the RCMP, was on general duties in Chilliwack from February until May 2008. [85] On March 21, 2008, Constable Krempaux was on duty in Chilliwack at 11:35 a.m. when he observed a vehicle without a front license plate parked outside a known drug house. He ran the plate. The vehicle came back as missing as of that date. When Constable Krempaux approached the vehicle, a male, later identified to be someone other than Mr. Walsh, got out and ran off through a back yard. Constable Krempaux chased and apprehended the individual. He took him into custody. The individual told Constable Krempaux that the vehicle was owned by Ryan Walsh and that Mr. Walsh had been delivering drugs to the house. [86] Constable Krempaux determined that Mr. Walsh was on parole and contacted him requesting that Mr. Walsh come and speak with him, which he did. Mr. Walsh denied driving the vehicle and delivering drugs. He claimed that he had been at home. Constable Krempaux contacted Mr. Walsh's parole officer. [87]

According to CSC records, on March 21, 2008, Mr. Walsh's statutory release was suspended for associating with criminal peers or associates. He was arrested three days later on March 25, 2008, and re-committed to prison. His statutory release was revoked on July 22, 2008. His sentence was recalculated and he was released again on statutory release on August 20, 2008. Corporal Jason Charney [88] Corporal Charney is a member of the RCMP. He started with the RCMP in 2003 in Chilliwack, British Columbia. In August 2008, he was a constable doing drug enforcement in Chilliwack. He understood from colleagues that Ryan Walsh and Jordan Plante were active in the drug trade in Chilliwack, but he was not familiar with either of them. [89] On August 22, 2008, Corporal Charney was on parole in an unmarked police vehicle. He had been told that Plante and Walsh were observed driving in Plante's vehicle. After briefly observing the vehicle, he pulled it over. Plante was driving and Walsh was a passenger. Corporal Charney and his partner searched Plante and Walsh. Plante was in possession of $430, mostly in $20 bills and one $100 bill, and two cell phones. A search of Walsh did not turn up anything. Corporal Charney ran Walsh on the computer system and learned that Walsh had a condition that he not associate with known criminals, which the police considered Plante to be. Corporal Charney

contacted Mr. Walsh's parole officer. [90] On August 25, 2008, three days later, Corporal Charney again pulled over Plante's vehicle. Plante was driving and Walsh was a passenger. A vehicle search produced two empty baggies, which the officer recognized as "meth baggies" due to small amounts of residue in them and the discolouration of the baggies, and some marihuana residue. Nothing else of note was found. [91] The casework records kept by Ms. Byrne, Mr. Walsh's parole officer, confirm that she received a call from Corporal Charney. On August 26, 2008, she issued a suspension warrant for Mr. Walsh. [92] After Mr. Walsh's re-release into the community on September 28, 2008, Corporal Charney described a further stop by other officers on October 26, 2008, in Coquitlam during which he was not present. Police stopped a white Escalade driven and occupied by several known drug dealers from the Chilliwack area. Mr. Plante and Mr. Walsh were in the vehicle. CSC Supervision [93] According to CSC records, Mr. Walsh was released on statutory release on October 31, 2007. His statutory release was suspended twice: first on March 21, 2008, with him being arrested on March 25, 2008; and again on August 26, 2008, six days after his re-release into the community. On both occasions, the reason for suspension was his associating with known criminals. When Mr. Walsh agreed to reside at the

Chilliwack Community Correctional Centre, the second suspension was cancelled and he was re-released into the community on September 18, 2008 and continued on statutory release until his sentence was complete on November 3, 2008. [94] I have reviewed all the materials generated by CSC staff in relation to Mr. Walsh (Exhibit 28). These include materials prior to his first release on statutory release to the completion of supervision. Reviews of his performance under community supervision are mixed. It is clear that while being supervised in the community Mr. Walsh continued to associate with Mr. Plante and others involved in criminal activity, despite denying that he knew Mr. Plante to his parole officer. [95] Mr. Plante was a co-accused with Mr. Walsh in relation to the incident giving rise to Mr. Walsh's convictions for the predicate offences. [96] Two documents in particular provide an overview of Mr. Walsh while under supervision in the community on statutory release. The first is the National Parole Board's post-release decision sheet dated June 22, 2008, in relation to the March 21, 2008 suspension, which states: Special Conditions: Not to associate with persons whom you know or have reason to believe are actively involved in criminality and/or the illicit trade in drugs. Reasons for Suspension: On March 21, 2008 warrants of apprehension and suspension were issued in order

to prevent a breach of the special condition imposed on your release and due to your deteriorating behaviour in the community. The warrants were executed by police on March 25, 2008. Board Members Assessment of Risk: 1. Assessment of behaviour during current release and identification of risk factors You were statutorily released on July 31, 2007 with the following special conditions imposed on your release: 1) follow psychological counselling, 2) must avoid certain persons - not to associate with persons whom you know or have reason to believe are actively involved in criminality and/or illicit trade in drugs, and 3) must abstain from intoxicants. Since your release, your progress is described as being satisfactory although somewhat lacklustre. You were meeting regularly with a psychologist and periodically with a substance abuse counsellor as well as monthly reporting to the local police. The psychologist commented that you failed to engage in meaningful therapy sessions, were evasive and lacked empathy. In addition, you believe you do not require counselling as there is nothing wrong with you. Comments from the substance counsellor mirror that of your psychologist in that your meetings with him are only to fulfill an obligation, adding that you lack insight and fail to take any responsibility for your actions. File information reports that you often had difficulty keeping

scheduled appointments and failed to report to police on more than one occasion. You were counselled regarding your responsibilities and the conditions of your release and were reminded that you would put your release in jeopardy if you failed to comply. On February 8, police stopped and questioned you regarding a conversation with an individual of interest to them and your attendance in the vicinity of a known drug house. Although you were reported as being cooperative with the police, you never reported this incident to your parole supervisor. As well, on February 27, the police advised your parole supervisor that you had not reported to them since December, 2007. Despite messages left reminding you of this requirement, you claim not to have received any such messages. On March 21, police observed a vehicle in front of a known drug house under surveillance. There were two occupants in the vehicle, and when the police pulled the vehicle over one occupant - the driver, fled and the other occupant, when questioned, revealed that you were the driver and owner of the vehicle. The vehicle was bearing stolen license plates. At a post-suspension interview with you, on April 4, you provided a story regarding your vehicle, claiming that you had lent it to a friend and that later, when it was not returned, you reported it as stolen. Later, when the vehicle was returned, you claim that

you had it towed to your apartment as you have only "parking insurance" for it and no valid license plates. You did not report this information to your parole supervisor. When questioned regarding the company that you keep, you were very defensive and claim that it is impossible to determine whether anybody is criminally active or not. You claim your innocence of any wrongdoing and stated that your parole officer "puts you at high risk". Risk factors in your case have been identified as substance abuse, negative peer group, personal/emotional issues and antisocial values and attitudes.

2. Comparison with previous pattern of criminal behaviour While you have a limited criminal record, a common feature noted is your antisocial and immature attitudes and your tendency to minimize your responsibilities and displace blame onto others.

3. Professional opinions regarding behaviour on current release Your Case Management Team (CMT) believes that your risk has become undue and is no longer safely managed on release. The recommendation is to revoke your release. If revoked, the same special conditions are recommended on your next period of statutory release.

4. Information from others regarding behaviour on release As noted above, Police contacted your community parole officer to inform them of the police contact, lack of reporting and suspicions related to your presence near known drug houses. A telephone call to police on April 25th, following your suspension, confirmed they had been provided with information indicating that on March 21 you were driving your vehicle to make a drug delivery to a drug house.

5. Assessment of proposed release planned and concluding risk evaluation You have positive community support from your Mother, and when released, you plan to remain in your current community. You are optimistic that you will find employment in the construction industry and find your own apartment. Your lack of insight to your risk factors and failure to take responsibility regarding conditions placed on your release makes supervision very challenging. Psychological risk information suggests that you pose a high risk for future violent crime. Your behaviour on the current release demonstrates that you were not taking this risk seriously. Reasons for Decision(s) At age 22 you are a first time federal offender serving a 3 year sentence following a conviction for Aggravated Assault. At your hearing you acknowledged that you did not cooperate with the members of your Case Management Team during your release, admitting that you did not make scheduled appointments, did not report to police as required and did not return messages. You admitted you did use marijuana on one occasion, indicating that it was a celebration. You denied knowing that you needed to report police contact, despite the provision of release expectations and the protocol of covering expectations upon initial release. You did not explain why you did not report the second contact given the requirement to report would

have been discussed with you after the first contact was reported to your parole supervisor by the police. You deny knowledge of the drug dealing allegations, stating you were the victim instead, having your car stolen and damaged. You agreed you have no credibility given your poor working relationship with your parole supervisor. You acknowledged you had not been honest with her and did not disclose any real information when asked. During the hearing your responses indicate limited insight into your behaviour, with little offered to explain how you would conduct yourself any differently if returned to the community. The Board, accordingly, finds that your risk is undue and your statutory release is revoked. On your next period of statutory release, the following special conditions are imposed: 1) must abstain from intoxicants, 2) follow psychological counselling, and 3) must avoid certain persons - not to associate with persons whom you know or have reason to believe are actively involved in criminality and/or the illicit trade in drugs. Reason(s) for Special Condition(s) Use of both alcohol and drugs has contributed to past criminal behaviour. To remain clean and sober represents a sound risk management strategy for you. You have also been influenced by negative peers. Given your long history of dysfunctional and violent behaviour you should benefit from contact with a

counsellor. These conditions are both reasonable and necessary for the protection of society and are imposed to assist in your reintegration into the community. [97] The second is a Correctional Planned Progress Report, dated September 24, 2008. It deals with Mr. Walsh's second suspension, which was ultimately cancelled, resulting in his return to the community for the brief time remaining in his sentence. In part, it states: The purpose of this report is to advise the National Parole Board of Mr. Ryan Walsh's breach of special condition to Avoid Certain Persons. Although Mr. Walsh was suspended for his breach, this was cancelled locally and Mr. Walsh was returned to the community on 2008/09/18. Review of Critical Risk Factors Ryan Walsh is a 22 year old male serving a 3 year sentence for Aggravated Assault. The victim of this assault was a 60 year old male who Mr. Walsh struck several times in the head with a hammer. Serious harm was deemed to have occurred to the victim. While incarcerated Mr. Walsh completed the Violence Prevention Plus Program. Mr. Walsh was originally released on statutory release in July of 2007. While in the community he participated in one to one substance abuse counselling and one to one psychological counselling. Mr. Walsh's previous release was not without incident and the reader is referred to Assessment for Decision recommending revocation dated

2008/04/24 for full details. Ultimately Mr. Walsh was revoked by the National Parole Board and released on his recalculated statutory release date of 2008/08.20. He was in the community 6 days before having his release suspended for breach of his special condition to Avoid Certain Persons... ... Strategies to Manage Risk Mr. Walsh's warrant expiry date is fast approaching (2008/11/03) and this writer believes it is important Mr. Walsh establish himself and get settled in the community prior to the expiration of his sentence. As such, his suspension was cancelled locally and Mr. Walsh returned to the community on 2008/09/19. The following risk management strategy has been put into place: Mr. Walsh is voluntarily residing at the Chilliwack Community Correctional Centre (CCC) and is subject to the graduated curfew program. At this time, Mr. Walsh is subject to a 2000hr curfew and there have been no issues from the RCMP. He has begun meeting with the substance abuse counsellor and psychologist weekly. Although he has not yet been tested, Mr. Walsh will be urine analysis tested on a reasonable grounds basis. ... Offender Motivation - Moderate There has been no change in Mr. Walsh's level of motivation; it remains appropriately rated as moderate. Reintegration Potential - Moderate (Change from High) Mr. Walsh's reintegration potential has been rated as high throughout his sentence.

However his performance on release does not support a rating of high. Mr. Walsh continually associates with negative individuals and rarely takes responsibility for his behaviour. Although he expresses a willingness to comply with conditions and sets long term goals, there is no follow through with his behaviour. Until such time as Mr. Walsh demonstrates a commitment to release, a rating of moderate reintegration potential is appropriate. Dr. Carson Smiley [98] Dr. Carson Smiley is the chief psychologist for Community Corrections Pacific Region, CSC. He has been in this position since 2000 and has an extensive background in psychology related corrections, including an expertise in counselling and treatment of psychological conditions, assessing risk of reoffending among supervised offenders, the mechanisms to control risk, and programs offered by the CSC. He presently supervises parole officers who, in turn, are responsible for approximately 1,200 offenders. Dr. Smiley also provides counselling directly to offenders. [99] Dr. Smiley counselled Mr. Walsh in January and February 2008, on three occasions at the request of Mr. Walsh's parole officer. This was prior to Mr. Walsh's statutory release being suspended in March 2008. [100] Dr. Smiley discussed his perception of Mr. Walsh during their meetings. He found Mr. Walsh to be evasive about the circumstances of his offending and

that he would deny the details of incidents or not be accountable for his conduct. [101] Dr. Smiley stated that Mr. Walsh did not have clear goals. He indicated that Mr. Walsh tried to be pleasant and cooperative, but that he did not understand or appreciate the seriousness of his situation. Dr. Smiley stated that Mr. Walsh did not appreciate that a typical 21-year-old does not commit a serious act of violence and serve three years in a federal institution. [102] Dr. Smiley discussed the dangerous offender and long-term offender programs in some detail. He identified the practical differences between a dangerous offender and long-term offender designation. Fundamentally, a dangerous offender designation is a lifetime designation and any release on parole is by the National Parole Board. Dangerous offenders are reviewed after seven years and pre-trial custody counts in that calculation. Dr. Smiley said that the majority of dangerous offenders remain in custody with only 4 to 5 % gaining release into the community. He also advised that dangerous offenders do not get priority in terms of programming, as it is directed to individuals with the earliest release dates. [103] Dr. Smiley indicated that if Mr. Walsh were declared a dangerous offender he would probably not have access to programs for three to four years. Dr. Smiley also described the various approaches to treatment of

long-term offenders while in custody and the nature of their supervision in the community, both generally and in relation to violent offenders. [104] Dr. Smiley discussed the differences between programs for long-term offenders serving provincial or federal sentences. He described the programs that could be available to Mr. Walsh if he were declared a long-term offender. He stressed that supervision was not available 24 hours a day, but an offender can be required to live in a residential facility operated or accredited by CSC with a 12-hour curfew and only be permitted to leave if escorted. He agreed that Belkin House is a facility designed to handle high risk offenders. If a long-term offender is considered to be very high risk, extra staff may be brought in, but that person will remain in the community unless and until a breach occurs. [105] Dr. Smiley identified that changes in the CSC programming had combined separate violence and substance abuse programming into one new program. This program is designed to address all of these issues through a holistic approach to changing inmate behaviour. He indicated that the fact that Mr. Walsh had taken the Violence Prevention Program Plus (VPP+) previously would not preclude him from taking the new program. Dr. Smiley added that Mr. Walsh did not practice the skills he had previously learned. [106] In response to questions on

cross-examination, Dr. Smiley indicated that a long-term offender can apply to transfer to another region if there is a basis for the move, including relocation to be near a pro-social support network. He also agreed that although Mr. Walsh during his previous incarceration had sought to take the high intensity substance abuse program, he was considered not to qualify for it and so it was not available to him. [107] In re-examination, Dr. Smiley agreed that to date the experience with long-term offenders in the community has generally been favourable and that very few have committed a further offence for which they have received additional imprisonment. Mr. Walsh's Second Conviction for Aggravated Assault (and Assault with a Weapon - a knife) - the Predicate Offences - at Age 22 [108] The predicate offences occurred on November 21, 2008, two months following Mr. Walsh's final release on statutory release, and approximately three weeks from the warrant expiry date of his prior sentence. [109] On March 26, 2009, Mr. Walsh was convicted of aggravated assault and assault with a weapon, a knife, in relation to one victim, Mr. Yarrow. [110] In oral reasons for judgment delivered on March 26, 2009, the Court set out the basic facts as follows: [1] THE COURT: The two young men before the Court, Ryan Joseph Walsh and Jordan Alan Plante, face a number of serious charges arising out of an

incident that occurred on November 21, 2008, in Chilliwack, in which several other young men sustained injuries, specifically, Bradly Yarrow was stabbed and Michael Schellenberg was pepper sprayed. Another male, Alexander Kampen was allegedly assaulted. [2] I will refer to each of the young men involved in this matter once by their full names and then by their last names only, and additionally, I will refer to the group of four young men (Alexander Kampen, Bradly [as in the indictment] Yarrow, Sean Radford and their boss, Michael Schellenberg) all of whom who had been working on a construction site in Richmond that day, as "the workers". On their way back to Chilliwack from Richmond they drank some beer and decided that they wished to purchase some marihuana as they planned to continue to party into the evening. Unfortunately, their plans went amiss. [3] This incident was preceded by a drug deal for marihuana in the early evening on that date between Radford and one of the two accused, Plante, in which Plante was underpaid. Plante called the workers back on Schulenburg's cell phone used moments before to arrange the deal. Radford and his fellow workers then returned within a few minutes, in the truck driven by Michael Schellenberg, to the Rhombus Hotel parking lot in Chilliwack where the deal had taken place, to pay the additional money they owed. This was when the first

altercation occurred between the workers and the accused Walsh, in Plante's presence. Walsh had been waiting with Plante in the hotel and went out with Plante to get the money owed as he thought that "Alex" who had been referred to, i.e. Kampen, might have been a person that he had been looking for as a result of an Alex McKowen implicating him in a theft of drugs several years before. Walsh approached Kampen, and Walsh and Kampen got into a verbal argument about whether Kampen was in fact McGowan. Walsh's head was thrust into a rear passenger window of Schulenburg's truck by Radford, who, based on what he saw, and after a brief communication with Yarrow, thought that Walsh was about to pull a knife on Kampen. The window glass shattered upon impact with Walsh's head. Walsh then fell to the ground and was struck by several of the workers. Yarrow had a bottle in his hand and was heard to threaten to "bottle" Walsh. The workers then left in the truck. [4] A short time later Walsh and Plante and an unidentified man, later referred to by Walsh in his evidence as "Lincoln", arrived in Walsh's truck at the front of Radford's Chilliwack residence where they encountered the workers getting out of Schellenberg's truck. Walsh engaged in a physical fight with Yarrow, who ultimately was stabbed in his back, and then Walsh proceeded to chase Kampen down the street. Schellenberg was pepper or

bear sprayed in the face, allegedly by Plante, after Schellenberg intervened to stop Walsh who was continuing to strike Yarrow who was by then down on the ground. Kampen outran two people that chased him, one of whom he said was Walsh, and both of whom he said were brandishing large knives. They stopped chasing him. When Kampen returned to the area of Radford's house, Walsh, Plante and the third male had already departed. Kampen assisted Schellenberg, who was screaming and disoriented from the noxious spray that had been discharged in his face, which had temporarily rendered him almost completely blind. Kampen also experienced considerable effects of the spray. Yarrow returned to Radford's residence after briefly running to his own nearby residence to see if he could get help. Yarrow, bleeding from an injury to his ear, realized that he had been stabbed in his back. Radford called the police and shortly afterwards the police and then the ambulance attendant arrived. [111] The evidence of the victim of the aggravated assault was summarized as follows: [33] Yarrow said the plan was to pick up some more marijuana, and Radford called Butch [Plante] to arrange to meet him at the Rhombus Hotel to buy it. Then they were going to go to Schellenberg's to party after everyone got changed. He described getting out of the truck with Radford to buy the marihuana from Butch as planned,

purchasing it, and then leaving in Schellenberg's truck. They were only a short distance away when they got a call that they had "shorted him a twenty", referring to Butch, and so they returned to the Rhombus parking lot. Upon arrival Yarrow described seeing a second man with Butch, who turned out to be Walsh, approach Kampen. Walsh kept asking Kampen if he was "Alex" and then using a last name other than Kampen. Yarrow said Walsh was getting more and more angry, and starting to yell. Yarrow said that Radford came up to him and said that Butch said that the guy meaning Walsh had a knife, and was going to stab Kampen. [34] Radford asked Yarrow if he should put Walsh's head through the window of Schellenberg's truck and Yarrow said "Do it," as he saw Walsh reach into his pocket -- he believed with his right hand into his right pocket -- and start to pull out a knife. Yarrow said he believed he saw a knife blade and that he just saw very little of it. Then he saw Radford smash Walsh's head into the window, which shattered, and Walsh went to the ground. [35] Yarrow admitted that then he and Radford struck Walsh a couple of times and said that he, himself, struck Walsh in the face, that he did not see where he was punching, and that he wanted to hurt Walsh so he would not get up and come back and attack them again. Yarrow said that when this occurred, he thought Walsh was going to

stab Kampen. Yarrow said Walsh was up within 15 to 20 seconds from when his head hit the window. He said that Walsh and Plante started walking off and then turned back towards them, and that was when he (Yarrow) grabbed two beer bottles from the back of the truck. Yarrow said he told Walsh to get out of there or he would smash the bottles over his head. He said that he was not sure what was going to happen and he wanted Walsh to leave. Then, Yarrow said, he put the bottles back into the back of the truck and he jumped into Schellenberg's truck with the others and they left. Yarrow said that when he had the bottles, Walsh took five or six steps towards him, that Butch did not move towards him, and that he (Yarrow) took three or four steps towards Walsh shouting about hitting him over the head with a bottle, when Yarrow decided it was time to leave. Yarrow said that after they left, they were "pretty pissed off and angry" but said they were just planning to go and party as it was over. He said Radford had lots of cuts on his arm from after he put Walsh's head through the window. [36] En route to Radford's Yarrow said that they stopped briefly at his apartment, which was right around the corner from Radford's, and the others waited outside for him to change. Then they went to Radford's. As they pulled up another truck drove up and parked, and Butch and Walsh got out. He said that

the two of them started walking towards him and because of what had happened at the Rhombus, Yarrow knew they came to fight, not talk. [37] Yarrow said he grabbed a beer bottle from the back of the truck and started walking towards Walsh and Butch (Plante) and that they stopped 2.5 to 3 metres away. They were on the passenger side of Schellenberg's truck. Yarrow said he was near its right rear tire and they were closer to the front by the handle of the passenger door. Yarrow said he held the bottle by its neck and said to Walsh that he was going to smash it over his head, to which Walsh replied, "Why don't you put the bottle down and fight me without the bottle?" Yarrow said Walsh looked pissed off and angry, and Butch was standing just a bit behind him. Yarrow said his own tone was angry and that he thought maybe Walsh would get into his truck and leave, but that he would have used the bottle if Walsh had come for him. [38] At this point, Yarrow said he saw someone else get out of Walsh's truck, who had what he thought was a can of bear mace in his hand, and run towards Kampen. Radford had gone into the house to grab something and Yarrow did not know where Schellenberg was at that time. [39] Yarrow said that when Walsh said, "Why don't you put the bottle down and fight," both Butch and Walsh were in front of him, and Butch was to his left and Walsh to his right. Yarrow said

that he went to put the bottle down by turning to his right and bending down, and just as he put it on the ground, he felt something hit his back like he had been punched and he was knocked to the ground. He said that the blow to back landed mid-back and a bit later he saw he had some blood coming from that area of his back. Yarrow said that he only felt the one blow to that area of his back that night. While he was on the ground he looked up and saw that Walsh was the only person there and that Butch was standing back. Yarrow said that when he was on his hands and knees trying to get up he recalled being hit in his head a couple of times, but said that he did not really feel these blows too much. He recalled that when he received these blows, Walsh was beside him to his left and the truck was to his right. Yarrow said that he was also kicked in the head and punched in the head three or four times. He said that the kick landed on the left side of his head by his ear. He said that the time frame for his altercation with Walsh was about 15 to 20 seconds and that it ended when he saw another pair of feet and realized that he was not being hit anymore, and he got up to see Schellenberg standing beside him. Yarrow said he thought Schellenberg might have hit Walsh, but he was not sure. He saw that Walsh "sort of staggered" beside the truck. At that time Yarrow said that he did not

see anything in Walsh's hand but also said that he did not recall looking. [40] Yarrow said that once he was on his feet he grabbed a beer bottle and planned to help Kampen as he saw the guy with the can of bear mace and thought that the others, including Kampen, were going to get bear maced. When Yarrow left to find Kampen, he said that Walsh and Plante were basically in the same area in front of Radford's house, and he jumped over a fence in Radford's backyard and circled around to try to run at the guy with the mace and cut him off. Then, he said, he saw one guy return, and then he saw Kampen return, at which point it was really dark. He said he came back out to the driveway and all three: Walsh, Butch and the other guy jumped into their truck and left. He said he heard Schellenberg and Kampen screaming and knew they had been maced. Yarrow said that he saw Kampen with Schellenberg and he ran back to his place to get his roommate to help in case Walsh, Butch and the other male came back again. His roommate was not at home and as he was running back to Radford's, Yarrow felt that his back was wet and he realized there was blood running down his back. He started to have trouble getting his breath and his back was sore. He realized that he had been stabbed and told Radford. [41] Yarrow then described how he was treated, the time he spent in hospital, the tube he had stitched

into his back and the stitches in his left ear. He said that he still experienced some discomfort from his lung and that it had become infected and he had to go on antibiotics. [42] Yarrow was not shaken in cross-examination in any significant aspect of his testimony. He reiterated his description of feeling a blow to his back when he turned to put the bottle down, and then he said he was knocked to the ground by a push. Yarrow said he was sober enough to know the difference between a punch and a push. He said the stab to his back did not knock him to the ground, and when he looked back after the push, Walsh was there and Butch (Plante) was standing back. Once on the ground Yarrow described again being kicked on the left side of his face, being punched a few times in the same general area, and also feeling three or four blows to the back of his head. He said that he saw who hit him and that it was Walsh, and that Schellenberg got Walsh off him. He said that he did not see who pushed him down. [112] Another Crown witness, Mr. Schellenberg, testified about the altercation in which the victim, Mr. Yarrow, was stabbed. His evidence is set out as follows: [67] Schellenberg then described going over to Radford's place and stopping his truck. He said that just as he stopped - he had opened his door and slid his front seat forward to let Radford out - when a truck he described as a

silver Dodge Dakota (which is agreed belonged to Walsh), pulled up. He said that the front end of that truck was facing the front end of his truck and that the truck had come from behind a brick wall to the left of where they were from the dead end side of the street. He said that all three of its doors were flung open simultaneously and he recognized Walsh and Butch. He said Walsh was the driver and Butch was the passenger, and there was a third person in the rear passenger seat. [68] Schellenberg said that Walsh went to the passenger side of his (Schellenberg's) vehicle, and that "I saw him run up and he attacked Brad Yarrow." Schellenberg said that Yarrow was on the ground and Walsh was on top of him. He said that he did not hear words spoken between them. He said he saw where the other two went, but that he went to the aid of Yarrow. He said the other two (Butch and the third male) were on the passenger side of the Dakota and they went around to the driver's side. [69] In his testimony, Schellenberg drew two detailed diagrams, Exhibits 12 and 13. His first diagram was where everybody was initially, and his second diagram represented the positions that everybody moved to, except that he could not say where Radford went during all of this. He said that Yarrow had gotten out of his truck and that the attack of Yarrow occurred along the passenger side of his truck. He

reiterated that he saw the attack on Yarrow by Walsh. [70] Schellenberg said he ran over to where Yarrow was and struck Walsh with his left fist with a blow that landed in his face, and that Walsh fell down. Schellenberg said that when he hit Walsh, Walsh was on both knees on top of the back of Yarrow and Yarrow was in what he described as a fetal or turtle position with Walsh on the top of Yarrow's back. Schellenberg said that he did not see anything in Walsh's hands, and that he did not look at Walsh's hands. He said that when he hit Walsh, Walsh fell and hit the truck, then fell away from the truck, while Yarrow was still on the ground. Schellenberg described going into a crouch so he could land the blow on Walsh. [71] Then Schellenberg said he stood up and he saw someone behind him just to his left a couple of feet away. He swung with his right arm and hit that person, but he said that he could not see who he hit. Then 10 seconds after that, Schellenberg said he was sprayed with mace or pepper spray in his face with what he felt and described as a white cloud of spray. Schellenberg said he did not see who did that. He said the white cloud was at about eye level, six inches from his face. Schellenberg described feeling pain right away in his eyes. He said that he could not see so he ran towards the brightest point and sat on a patio and screamed for help. He said that three

or four minutes later Kampen came up and put his arm around him and walked him to Radford's place. He then described his distress and trying to deal with his eyes. He recalled that Yarrow came back and said that he had been stabbed. [113] Mr. Walsh's evidence is set out as follows: [75] Ryan Walsh, who is presently 22 years old, testified on his own behalf. He advised the Court of what he had been doing earlier on November 21, 2008, and of the history of his dispute with Kampen whom he previously knew as McKowen. He said that during the encounter in the Rhombus parking lot, he called out McKowen as "Alex's" last name and that Alex denied it, became defensive, raised his voice, and came out of his truck. Walsh said that they stood face-to-face and Walsh told Kampen that he knew who he was and they continued to argue and shout. [76] The next thing Walsh knew was that his head had gone through the rear passenger window of the truck. He said that most of the glass went into the vehicle but some came outside. He said that he went down on one knee when he was immediately struck by three males, including the male he knew as McKowen (Kampen), Yarrow and Radford. Walsh said he tried to make his way towards the back of the truck where Butch was being held and struck by Schellenberg. A woman from the hotel came out and said she had called the police. Walsh said he went back into the hotel

to pay for his iced tea and was told that he had blood running down his head and that he had scratches and a scar on his neck, which took a few weeks to heal. Walsh denied having a knife in his hand or in his possession at the time he confronted Kampen and said that he had his larger cell phone in his pocket, which he said he was going to try to use to call up his old drug boss to clear up matters relating to Kampen having previously implicated him as having stolen some drugs lost by Kampen. Walsh, through his counsel, produced a cell phone in court that he referred to while giving his evidence. [77] Walsh detailed what he and Plante did after the Rhombus. He said that he did not acquire a knife. He said that he heard Plante call Schellenberg back but denied that Plante made any threats. [78] Walsh described how he and Plante and a third male named Lincoln that they picked up, went and bought some pepper spray on the way to Radford's residence and that they pulled up just as the workers were getting out of their truck. [79] Walsh said that he got out of his truck, left it running, approached Kampen who was huffing and puffing and told Kampen that he could not let him go until the matter with the drug boss had been cleared up. Walsh saw Yarrow come towards him threatening to bottle them, with one in his hand. Walsh said he went to Yarrow because he saw Yarrow as a direct threat

after what had happened at the Rhombus. Walsh described Yarrow as being a couple feet from the Schellenberg truck, standing on the grass. He said that he told Yarrow to put the bottle down and fight it out, and as he did so, he (Walsh) smacked the bottle out of Yarrow's hand, and since they were face-to-face, Walsh struck Yarrow in the head with one shot and Yarrow dropped to the ground. Yarrow was unsuccessful in getting up and fell against the passenger side of the Schellenberg truck, at which point Walsh said he rushed over and hit Yarrow with his fists as Yarrow was trying to retrieve the bottle. [80] Walsh said that as he was striking Yarrow, he saw Schellenberg approaching and that worried him because Schellenberg was the largest. Walsh said that he was in a fighting mood as he was striking Yarrow. Walsh said that he then turned to avoid being hit from behind and he tripped over Yarrow and stumbled to the back of the truck. Walsh said he did not recall what happened after that except he went to the front where he knew McKowen (Kampen) was and proceeded to chase him down the street. Walsh denied having a weapon of any sort as he did this. Walsh said that McKowen (Kampen) ran pretty fast, and pretty soon he realized it was a waste of effort to try and catch him. He said he decided that they had better get out of there so he yelled "Let's go," and he, Plante, and Lincoln

jumped into his truck and they left. [81] Walsh denied stabbing Yarrow, and said that he did not see Yarrow get stabbed. He admitted that he might have punched Yarrow on his back when he was on top of him. [82] In cross-examination, Walsh said that the whole incident outside Radford's house took two minutes "tops" and that was being generous. He admitted that he had had an altercation with Yarrow and that he was the only person who he saw, who had any physical interaction with Yarrow. Walsh denied that he was angry after what had happened at the Rhombus, saying that he was confused and he denied that he wanted to get back at them. He did agree that he wanted to find Kampen again and that Plante indicated that he knew where Radford lived. In terms of his assertion that Plante bought the pepper spray, Walsh said that he did not discuss it with Plante, as "Some people buy things that others don't need to know about." Walsh reiterated that he still regarded the drug rip-off from four to five years ago that Kampen implicated him in to be a real threat to his (Walsh's) safety, even though the last confrontation between him and the drug boss had been three-and-a-half to four years ago. Walsh agreed that he wanted to resolve this matter with Kampen assertively. [83] About the first meeting at the Rhombus, Walsh said that he went with Plante into the parking lot to get the rest of the

money owed because he got the idea that the Alex referred to might be Alex McKowen and that was why he went out with Plante to see who was there. Walsh denied saying anything to Plante about "poking" McKowen, although he admitted that Plante knew that Walsh's plan was to resolve the matter as Plante had known about it for years. However, Walsh said that if Plante commented to one of the workers about him (Walsh) poking someone, then Plante was mistaken. [84] Walsh denied poking Yarrow, agreeing that he had heard Yarrow's evidence about being struck in the back by Walsh as Yarrow turned to his right to put down the bottle. He agreed that Yarrow interrupted him as he was trying to resolve things with Kampen. Walsh said then that Yarrow was not putting the bottle down, but that he, Walsh, had smacked it from Yarrow's hand and landed a blow to Yarrow's face. Walsh said that he was there to confront McKowen (Kampen) because of the previous threats, and that he had two friends with him like bodyguards, not to be aggressive, but as persons who could diffuse any violence threatened towards himself. [85] In Walsh's view, his fight with Yarrow was a consensual one after Walsh knocked the bottle out of his hand and that was how it ended. Walsh was of the view that Yarrow was intoxicated because he observed the empty beer bottles in the back of the truck and said that Yarrow was yelling

and being aggressive, not making sense, and trying to play the tough guy. Walsh said Schellenberg was calm and sober and the other workers were loud and obnoxious. [114] Mr. Walsh testified as follows in direct: Q: All right. Now, did you stab Mr. Yarrow? A: No. Q: Do you know who did? A: Not whatsoever. THE COURT: I'm sorry? A: Not whatsoever. MS. PATERSON: Q: Did you see Mr. Yarrow getting stabbed? A: No. Q: At any time did you punch Mr. Yarrow in the back? A: I might have when I was on top of him when he was on the ground beside the passenger side of the vehicle. Other than that, not that I can remember. [115] Mr. Walsh's evidence on this issue was rejected. The Court held: [86] Upon careful consideration, I reject Walsh's evidence that he did not stab Yarrow in the back when he was fighting with him. I find that it is unbelievable that Walsh would approach the workers with reinforcements as he described completely unarmed, particularly when one of them had just smashed his head through a truck window less than half an hour before. I find that Walsh had revenge and retaliation on his mind given that he had picked up the third person named Lincoln, and had gone to Radford's with the sole purpose of finding McKowen (Kampen) and those with him. On Walsh's evidence, he was with Plante when Plante bought a can of bear spray on the way over to again find Kampen to settle his old

problem. Walsh's evidence that he just planned to talk to Kampen, who by then he had apparently confirmed was really McKowen, is not believable. It also offends common sense that Walsh would engage Yarrow, who he saw had a bottle in his hand, if he was completely unarmed himself. One would reasonably expect Walsh to back up or retreat instead of moving in to encounter Yarrow. [87] I find that Walsh's evidence is his best effort at being smart in the untenable position he finds himself in. That he admits he hit Yarrow with his fist when Yarrow was down and that he might have punched Yarrow in the back in the same area as Yarrow was stabbed, but asserts that he did not stab him himself, is simply incredible and far too convenient. I accept Walsh's testimony that after he left Yarrow, he chased Kampen down the street with Lincoln for a very short time, about 10 seconds, which is confirmed by others. ... [90] For the reasons that I have articulated, in relation to the evidence of Walsh, I find that I do not believe it, and I also find that it does not raise a reasonable doubt. It is simply not credible, and it offends common sense in light of all the evidence, including the surrounding circumstances and the nature of Yarrow's injuries, particularly the stab wound. [116] The Court's findings as to Mr. Walsh and his possession and/or use of a knife during the earlier encounter at the

Rhombus Hotel and in relation to the stabbing of Yarrow are relevant to this application and are as follows: [95] In terms of Count 2, I find that the same evidence proves beyond a reasonable doubt that Walsh did assault Yarrow with a weapon, a knife, contrary to s. 267(a) of the Code. [96] In relation to Count 3, although I have found that Walsh had a knife in his possession that he used in the altercation with Yarrow, the evidence from earlier in the evening during the incident at the Rhombus Hotel does not prove beyond a reasonable doubt that Walsh had a knife at that time. He may have possessed a knife when Radford saw Walsh reach for something in his pocket, and when Yarrow thought he saw a shiny blade, but on the evidence I find that is not proven beyond a reasonable doubt. [97] After Walsh's dealings with Yarrow, Kampen testified that he saw Walsh chase him (being Kampen) with a large knife, but I have rejected as unreliable Kampen's testimony. Although the case law will support a conviction for possession of a weapon for a purpose dangerous separate from an assault conviction with a weapon in certain circumstances, particularly if the time span is different for the two offences, I find that in the present case it is not correct to also found a conviction of Walsh in Count # for the possession of the knife, based on his use of the same in the same circumstances that

found the convictions in Count 1 and conditionally in Court 2. [I was later persuaded that the conviction in Count 2 ought not to be conditional.] Mr. Walsh's Time Spent in Provincial Custody Awaiting Trial and the Outcome of these Proceedings [117] I have reviewed the "client log" pertaining to Mr. Walsh kept by B.C. Corrections from when he was a youth, when he was in custody for the first aggravated assault from November 2, 2004 to when he left for federal custody on November 4, 2005, when he returned intermittently between March 26, 2008 and September 18, 2008, and since November 25, 2008. The records cease on January 17, 2011. [118] While there are numerous minor incidents of Mr. Walsh being disrespectful or verbally abusive to staff or being reprimanded for not following orders, there are also numerous positive comments. Apart from the notation about Ms. Gagne bringing Mr. Walsh some books about mushrooms, including one entitled "Psilocybin Mushrooms of the World," there is nothing of particular note in addition to the above information. The reference to psilocybin is only of note because in the materials I have reviewed Mr. Walsh was reported as having ingested psilocybin mushrooms as a drug. Dawn Hoffler [119] Ms. Hoffler is a correctional officer at North Fraser Pre-trial Centre who has worked in inmate programs for the last four years. She testified in court and

provided a letter dated August 12, 2010 (Exhibit 38). Ms. Hoffler facilitates a number of programs taken by inmates, including the Substance Abuse Management Program (SAM), the Violence Prevention Program (VPP), and a program called Breaking Barriers. [120] Mr. Walsh took a SAM class facilitated by Ms. Hoffler from May 31 to June 4, 2010. In her limited experience with Mr. Walsh, she found him to be very quiet. He read when requested and appeared to be doing the work along with the class, but did not actively participate in group discussion. Because the work done by inmates in the workbooks is personal, Ms. Hoffler advised that she had no way of knowing the extent of Mr. Walsh's work. She indicated that he was polite and respectful. [121] In a subsequent letter dated September 20, 2010 (Exhibit 39), Ms. Hoffler confirmed that Mr. Walsh had spent time on wait lists for all three programs before taking the SAM program. He also took the VPP from July 20 to 28, 2010. She also noted that Mr. Walsh during his earlier period of pre-trial incarceration (in relation to the first aggravated assault charge) took the VPP from December 19, 2004 to January 11, 2005, and the SAM program from November 27 to December 5, 2005. Laurie Christie [122] In an email to Crown (Exhibit 37), Ms. Christie confirmed that Mr. Walsh attended four of five classes of the VPP being run at the North Fraser

Pre-trial Centre in July 2010. He missed one class due to a legal visit. The course is not set up to monitor progress or how much a participant retains. She indicated that Mr. Walsh had "minimal verbal participation" in the course. Patricia Shea [123] Ms. Shea is a community parole officer with the CSC. She has held that position for ten years. In that time, she has monitored long-term offenders in the community. While she has not personally supervised dangerous offenders, she is aware of how they are monitored in the community. She provided detailed evidence in relation to the federal correctional process for both dangerous offenders and long‑term offenders, including community supervision. These included having the offender report up to twice a week to a parole officer in a high risk/high needs case, police reporting, suspensions and returning the offender to custody because of a breach of a special condition, to prevent a breach of a special condition, or to protect society. [124] Ms. Shea explained the differences in process between dangerous offenders and long-term offenders when suspensions occur. She pointed out that a long-term offender may be charged and convicted of an offence contrary to s. 753.3(1), whereas dangerous offenders have their suspensions, including those for an alleged breach of a special condition, reviewed by the National Parole Board which can either

cancel the suspension or revoke their release. [125] Where a long-term offender is released on community supervision at their warrant expiry date whether their risk is viewed as reduced or not, dangerous offenders have to earn their way out of prison insofar as there must be evidence of risk reduction. Programs in the community tend to be maintenance only, as opposed to intensive programs designed to address serious personal character deficits which are offered only in custody. In terms of supervising high risk long-term offenders in the community, they are supervised and their risk "contained ... as best as our resources permit." [126] Ms. Shea explained that when an offender enters the federal system, a risk assessment is done and that rating is usually regarded as a static factor. She was taught that it barely changes with another assessor. Therefore, if she sees that an offender has been rated at a high risk to re-offend violently, she manages the case accordingly. She indicated that there are various safeguards that may be put in place to manage such an offender in the community, but stressed that intensive treatment is not available in the community, just maintenance programming. The National Parole Board may impose a special condition that requires the offender to reside in a particular halfway house or other community facility. She described the most secure residence

for high-risk offenders, Belkin House, which is staffed 24 hours a day, requires the use of an access card to come and go, has parole officers on site, and video surveillance. Conditions imposed on an offender in the community may be gradually lessened or not, depending on their level of risk and degree of compliance with conditions. Mr. Walsh's Release Plan [127] Mr. Walsh's plan upon release is to continue his relationship with his girlfriend, Tanya Gagne, and her family. He proposes to live with the Gagne family, seek employment through the assistance of Ms. Gagne's stepfather, and relocate with them when they move to Barrie, Ontario. He spoke of this plan to Dr. Nicholaichuk. Tanya Gagne [128] Ms. Gagne is the girlfriend of Mr. Walsh. She is 24 years old and resides in Chilliwack, British Columbia with her mother, Ms. Anne McKenzie, and her stepfather, Michel Gagne, both of whom testified at these proceedings. She has no criminal record. She indicated that she does not drink or use drugs. [129] Ms. Gagne and Mr. Walsh began a relationship when he was out of custody in 2008. She understood Mr. Walsh to be living with Mr. Plante prior to his arrest and detention on the predicate offences. Since then Ms. Gagne has spoken with Mr. Walsh every day on the telephone and visits three times per week. [130] Ms. Gagne is aware of Mr. Walsh's criminal record. She has read Dr. LaTorre's

and Dr. Bartel's psychological reports. She interviewed with Dr. Nicholaichuk for 20 minutes in July 2010. She indicated that she is aware of the concerns about Mr. Walsh's behaviour and his risk factors. She identified anti-social people, and drugs and alcohol as risks that Mr. Walsh needs to avoid. Ms. Gagne stated that she does not think that counselling or therapy "would hurt." [131] Ms. Gagne described Mr. Walsh as behaving differently around her as compared to when he is with certain people who are into drugs and not going anywhere with their lives. She described Mr. Walsh as a wonderful, nice person, and someone who is respectful around her, her friends, and her parents. [132] Ms. Gagne described her plan to relocate with her family and Mr. Walsh, and possibly Mr. Walsh's mother, to Barrie, Ontario. She said that she visited there four years ago and they have extended family there. The plan is that her parents would go first and then she would join them when she finishes her studies. She indicated that Mr. Walsh has options for employment with her family members. She stated that she has considered the possibility of her relationship with Mr. Walsh not working out, and says she will still help him and that her parents have indicated they would do the same. [133] Ms. Gagne was subject to cross-examination. Although Ms. Gagne said she has known Mr. Walsh since 2003, the

first time she saw him again in four years was at the end of 2008 when he was on statutory release. Initially, he was living in a halfway house. She recalled that in October 2008, Mr. Walsh moved in with Mr. Plante who he shared an apartment with until he was arrested on the new charges. Ms. Gagne was not aware that Mr. Plante was involved in selling drugs. She was also not aware that Mr. Walsh was involved in drug trafficking with Mr. Plante and agreed that she was surprised when she found out. She did know that Mr. Walsh was on what she called "parole" when they began seeing each other. Ms. Gagne did not consider Mr. Plante to be a good person for Mr. Walsh to "hang out with." Based on what Mr. Walsh had told her, he has known Mr. Plante for a long time and she agreed that if he told a parole officer in August or September 2008 that he did not know Mr. Plante, then that would be a lie. [134] She acknowledged that for most of their relationship Mr. Walsh has been in custody and agreed that the time she had to get to know him prior to his detention for the most recent offences was very limited. She agreed that her parents have had even less time to get to know him. Ms. Gagne indicated that her plan is to live with her parents and that Mr. Walsh would live with them. She said he would not necessarily have to move out if their relationship ended, but agreed that it would get a

bit awkward if she started another relationship while he was living with her family. [135] Ms. Gagne indicated that she takes books to Mr. Walsh that he requests and that one book was related to psilocybin mushrooms. She said that she ordered it for him as they were interested in gourmet mushrooms and how to grow them. She said that they needed to know everything about mushrooms and that she was aware that Mr. Walsh had used psilocybin mushrooms before, but that was not the kind they were leaning towards. [136] Ms. Gagne said that she had met with Mr. Walsh's mother, Teresa Walsh, many times over the last couple of years and that she talks to her a couple of times a week. She agreed that as far as she knew Mr. Walsh's mother had done her best to help him. [137] She informed the Court that she told Dr. Nicholaichuk that she did not believe the contents of the reports she read concerning Mr. Walsh. She acknowledged that she has never interacted with anyone who has spent time in prison and has never assisted anyone with a drug problem. Michel Gagne [138] Michel Gagne is the stepfather of Tanya Gagne and their common name is coincidental. Mr. Gagne resides in Chilliwack with Ms. Gagne and her mother, Ms. McKenzie. He is a commercial truck driver, operates a business that does renovations and vehicle repair work, and he is employed as a property manager. He acknowledged some drug

use in his early twenties, but last used drugs in 1984. He has no criminal record. [139] Mr. Gagne met Mr. Walsh in September and October 2008, through Tanya Gagne. Mr. Walsh worked for Mr. Gagne between five to eight times before he was arrested for the predicate offences. He identified Mr. Walsh as "a nice guy," quiet, and someone with a good work ethic. [140] Mr. Gagne indicated that he is aware of Mr. Walsh's criminal record and the time he has spent in prison. He has not reviewed the psychological reports of Mr. Walsh, but has learned details of them while attending this hearing. [141] Mr. Gagne discussed his plans for the future. He intends to move to Barrie, Ontario to start a fitness franchise. He plans that Mr. Walsh would complete qualifications to become a fitness trainer so he can be employed in the business. In the meantime, Mr. Gagne indicated that Mr. Walsh would have income from working in Mr. Gagne's renovation company. He thought that Mr. Walsh could relocate to Barrie, Ontario as soon as possible and that Ms. Gagne would follow after completing her university studies. Mr. Gagne indicated that in Barrie Mr. Walsh would reside with their family. [142] In terms of what Mr. Walsh needs to do to avoid future problems with the law, Mr. Gagne identified that he believes Mr. Walsh needs to stay away from people who like to fight, suggesting that Mr. Walsh has an

issue with proving that he is tough. He indicated that he is not aware of Mr. Walsh doing drugs but understands that it is important to stay away from drugs. He says he can assist with this. Mr. Gagne indicated that Mr. Walsh must work and not cause difficulties while living with their family. He said that eventually when Mr. Walsh was "on his feet" he could get a place of his own, but in the meantime he could live with them. [143] Mr. Gagne stated that Mr. Walsh has been underestimated, that he is a fighter, and that he has been in trouble with the law but "When you are young, things happen." He said that Mr. Walsh is a hard worker and not a stupid man. [144] In cross-examination, Mr. Gagne acknowledged that Tanya and Mr. Walsh were together at the time of the predicate offences. He indicated that he was not aware of Mr. Walsh's criminal record, that he had spent time in prison, or that he was on parole when he met him in 2008. Mr. Gagne stated that he did not ask him about those things and they would not have concerned him. He indicated that in 2008 he was also not aware that Mr. Walsh was involved in drug trafficking or living in a halfway house and later with an individual who was involved in drug trafficking. He reiterated that Mr. Walsh needs to avoid individuals who like to fight. Mr. Gagne assumed that Mr. Walsh got involved in the predicate offences as a result of a

person calling him as he needed "back up" and, knowing that Mr. Walsh could intimidate and that he would be there if something went wrong, that person took advantage of Mr. Walsh. Anne McKenzie [145] Ms. McKenzie is Tanya Gagne's mother. She lives in Chilliwack and has been an accountant for 30 years. She has no criminal record. Ms. McKenzie met Mr. Walsh through Tanya in September and October 2008. She was not aware at the time that he had a criminal record. She is now aware of Mr. Walsh's criminal record and the present offences. [146] Ms. McKenzie indicated that she has read two psychological reports concerning Mr. Walsh. She could not specify the exact reports, but agreed that the name "Dr. Bartel" sounded familiar. She stated that she read the reports several times in full in order to be sure she understood them. In cross-examination, she stated that the reports may not be true as they were done in a really short time and questioned if the doctors could really know Mr. Walsh. [147] Ms. McKenzie reiterated their family's plan to relocate to Barrie, Ontario. She referred to the fitness business that she and Michel Gagne plan to open. She stated that the plan is for Mr. Walsh to come with the family, and that he needs guidance and a fresh start that he will not receive in Chilliwack. Ms. McKenzie indicated that she had met Mr. Walsh's mother several times and that she

believes that his mother has not given the guidance he needs. When asked why she would help Mr. Walsh, she referred to him as "the golden child" because he likes to cook and clean. She indicated that she would not have offered to assist him relocating in the beginning, but that she has come to know him and believes that he is "a good kid" and has it in him to succeed. Ms. McKenzie indicated that he is like a child to her and no matter what happens she will always be there for him. She referred to opportunities for Mr. Walsh to continue with his education, to work with Michel Gagne, and to assist her in tax season. [148] Ms. McKenzie referred to the type of support Mr. Walsh needs. She identified the John Howard Society as a program in Barrie that she has looked into that may offer anger management or drug counselling if Mr. Walsh is facing difficulties. She identified Mr. Walsh as having anger issues. She stated that most young men make mistakes. She described the people Mr. Walsh was hanging out with in Chilliwack as hoodlums who were selling drugs and involved in crime. She indicated that he should avoid drugs and believed that she could tell if he was using marihuana. Ms. McKenzie acknowledged that Mr. Walsh would be on restrictions and would be monitored after he is released. She indicated that she would assist him in abiding by his conditions and would report him if he

were in violation of his conditions in order to save him. [149] In cross-examination, Ms. McKenzie acknowledged that she did not get to know Mr. Walsh well in 2008. She indicated that she did not know he was on parole, living in a halfway house, or involved with drug trafficking. Since that time, she has visited Mr. Walsh in custody on five occasions and spoken with him on the phone. She stated that she is content to have him live in their residence, but acknowledged that it could be difficult if he and Tanya ended their relationship. Mr. Walsh's Participation in Treatment While Serving His Federal Sentence David Marxsen [150] Mr. Marxsen is a psychologist with expertise in risk management and treatment. He has an MA in Forensic Psychology from UBC. He is registered with the College of Psychologists of British Columbia and employed with the CSC. From 1998 to 2004, Mr. Marxsen conducted psychological assessments for CSC that were primarily risk assessments. In 2004 to 2006, he facilitated the VPP and the VPP+ for higher and lower risk offenders, respectively. Since 2008, he has been working for the CSC in the community and administering individual psychotherapy for offenders on long-term supervision. [151] Mr. Marxsen facilitated the VPP+ in which Mr. Walsh participated in 2007. Mr. Marxsen indicated that he was involved with Mr. Walsh both before and after the program and saw

him on work days for about six months. Mr. Marxsen discussed Mr. Walsh's strengths and weaknesses in the program. He indicated that Mr. Walsh struggled with motivation throughout the program, but consistently tried to address and solve this issue. Mr. Marxsen was struck by his insight. He indicated that Mr. Walsh showed more insight into himself than most inmates and that he understood errors in his own thinking and defence mechanisms - issues most inmates have great trouble understanding. Mr. Marxsen stressed that this insight was important to the objective of the program - to change violent behaviour. He indicated that Mr. Walsh had difficulty following the rules in the program and needed to work on this. He identified Mr. Walsh as possessing an expectation that others would solve his problems for him and said he required further improvement in that area. [152] Mr. Marxsen could not directly address the question of whether further treatment could help to prevent Mr. Walsh from violently reoffending, as he had not had contact with him for several years, but indicated that the VPP+ has aspects of both teaching and treatment and that further treatment can help individuals who have re-offended when they returned to the community. [153] Mr. Marxsen described Mr. Walsh's participation in the VPP+. He indicated that passing the program is not difficult; however, Mr. Walsh was well

above that level. He indicated that he was struck by the fact that when presented with the typical thinking errors and defence mechanisms that lead to violence, Mr. Walsh considered that they all applied to him. Mr. Marxsen characterized Mr. Walsh's "action plan" for post-release as excellent. He stated that Mr. Walsh understood the baseline problems, had a plan, was still struggling, but was working on his issues. Mr. Marxsen said that the VPP+ program is primarily a psycho-educational program aimed at changing offenders' violent behaviours. He said "...there's the assumption ...that treatment for changing your behaviour is like treatment for an infection, that we give a person a large dose, they do not respond, therefore medication is useless to deal with the infection. And change is not like that. Change is a much more slow and much more complicated process." He indicated that some offenders who have taken violence prevention programs and have then reoffended have benefited from further treatment. [154] Mr. Marxsen reviewed other risk assessments. He indicated that based on Mr. Walsh's performance in the VPP+, it is his opinion that the risk assessment conducted by Mr. Pierce over-estimated Mr. Walsh's risk for violent recidivism. [155] Mr. Marxsen described his methodology for risk assessments. He discussed the anti-social personality disorder ("APD") which, I note was a

diagnosis of Dr. Bartel. Mr. Marxsen indicated that a diagnosis of APD is not particularly helpful in a risk assessment, as it is very easily arrived at if behaviour has been going on for a long time and is almost universal in correctional populations. He indicated that he uses the Hare Psychopathy Checklist Revised (the "PCL-R") and the Violence Risk Appraisal Guide (the "VRAG") in conducting risk assessments. Mr. Marxsen explained that the two tools are not independent, as the VRAG uses the PCL-R score to produce a result; however, he indicated that empirical research has consistently shown the PCL-R to be the single best predictor for violent recidivism. [156] Mr. Marxsen identified the Violence Risk Scale ("VRS") used by Dr. Nicholaichuk as a tool that does not meaningfully add anything to a risk assessment beyond the PCL-R, but can identify factors in a person's offending that may assist in treatment. He indicated that he would not use the VRS to assess risk, that it is rare to do so, and that he has never seen a risk assessment where the VRS was used instead of the PCL-R. Mr. Marxsen stated that it is permissible to use the PCL-R without an interview if there is sufficient data available in accordance with Dr. Hare's manual for the PCL-R. [157] Mr. Marxsen was subject to cross-examination. In relation to the issue of reoffending after treatment, he indicated that he has

seen on many occasions a pattern of treatment, reoffending, and further treatment before an offender is rehabilitated. He characterized a previous failure as an opportunity to put the situation to constructive use and learn from what went wrong. [158] In Mr. Walsh's case, he indicated that it would be helpful for Mr. Walsh to examine why he re-offended after release and that such treatment could be done one-on-one in the community or in a correctional institution. Mr. Marxsen indicated that based on his experience with Mr. Walsh, he could make significant progress in a year or two of community treatment with the caveat that his opinion was not on recent interaction or information regarding Mr. Walsh. He stated that a plan is important, but that it must be realistic and apply to the offender's situation. He indicated that he has often seen relocation - the "geographical cure" - fail, and that relocation is a better plan when it is with new pro-social peers. He stated that Mr. Walsh's plan to relocate with the Gagne family to Barrie, Ontario is a good start, but that education and employment as well as external controls, such as CSC supervision, would assist him. Mr. Walsh's Own Notes During Treatment [159] Although the Court has not heard directly from Mr. Walsh in these proceedings, his lengthy and detailed journal notes from the VPP+ (made during his prior federal sentence)

are in evidence (Exhibit 27, Tab 4). They are comprised of 96 handwritten pages of self-analysis and goal setting directed at his achieving enough self-awareness, insight into his relationships with crime and violence, and motivation not to re-offend and return to prison, which is of course precisely what has happened. Although Mr. Walsh displays a clear willingness to analyze his past and his plans for the future in the context of his inclination to violent behaviour, it is clear from these notes that he considers his past violent responses as justified if he felt he was threatened and that, if he perceived a threat in the future, he would again resort to violence. [160] Some extracts from his journal will provide a sense of this. Mr. Walsh writes: What things are you not very proud of? - Not completing actual public school - Not already being highly successful - Family relationships - Past substance abuse issues - Criminal activities - Old lifestyle - How I used to handle friendships and relationships - Letting my mother down What things are you working on now? - Education, Adult Dogwood - Improved self-control - Making sure I am prepared for a lapse/relapse in case one ever occurs - Obtaining a student loan - Enrolling in college - Achieving healthy relationships between family members and family members & I - Making sure my grandmother & grandfather live the rest of their

lives happily - Achieving success & self-fulfillment - Preparing an excellent life for the next-generation of my family - Being prepared for my mother's retirement and being prepared for anything I must do to comfort her - A business plan - Obtaining a positive circle of peers How do you feel about your life now? I feel I have a mountain of things to achieve, that I must work twice as hard in order to make up for the time I have wasted. However, I am very positive & optimistic that I can achieve my goals and exceed mine & others' expectations of my outcomes. What were my goals in the past? - Achieve money quick & easy - Always have a steady income - Be successful - Achieve self-fulfillment - Retire early - Live life fast What was important in your life in the past? - Money - Friends - Never being bored - Family Where was your life headed? My life was headed to the abyss of a downward spiral, I had no direction and no concrete goals. Life would've continued to pour into my "bucket" until it overflowed, which then, something drastic would be bound to happen because no one can have a firm grasp on their life when their "bucket" is overflowing. Jail probably would've been inevitable, or even worse, possibly death. I would've lost everything. ... Weaknesses: - Can make poor decisions - Sometimes might act impulsively when a situation appears to be spontaneous - Infrequently

consistent - Can lose persistence - Desire to be rich quick How big a part of my life was doing crime? It played a big role because it put money in my pocket and influence me to continue it, and not continue working towards my goals. How much of your time was taken up by crime? Alot. I was always doing something to maintain a swollen pocket of money. The desire of money was a huge factor. How much of your social circle was from a criminal subculture? 50%, my circle of friends was quite diverse. How essential was doing crime to your survival? Surviving was not apart of it. It was the desire for money and the desire to be able to spend money whenever I chose. In what other ways did you support yourself? Employment. I almost always had a part-time or full-time job. How much did my self-esteem and social standing depend on crime? Quite a bit. All of my friends always had money. To me, it was essential to be the same because that's just how it was. What else, besides money for survival, did crime get you? - Fear - Respect - Loss of respect - Loss of friends - Different circle of friends - Loss of direction - Loss of vision of goals - Social standing How much was your self-esteem tied up in being good at crime? It did play a role. However, for me, I was there for one thing. Money. I was more fulfilling my craving for money than anything. How much respect did you get for doing

crime? I gained quite a bit of respect without even knowing it. it wasn't my M/O, but I did welcome it gladly. ... Where am I now in the criminal career path? I am nowhere, a criminal career path in my life presently and in the future ceases to exist. ... What did using violence get you in the past? - Fear - Respect - Money - Safety of myself & others - Problems solved -Empty my "bucket" - Loss of friends - Friends - Jail - Loss of respect - The feeling violence was the easiest way problems could be solved - Being kicked out/prevented of school - Feeling of power - Dominance/control What has violence given you? (the positives)? - Fear - Respect - Money - Safety of myself & others - Problems solved -Empty my "bucket" - Friends - Feeling of power - Dominance & control What was the most important reason for using violence? - Safety of myself & others ... What are some reasons you might still need to use violence? - Safety of myself & others In your present circumstances? - Safety of myself & others In the future? - Safety of myself & others ... What would be the costs & benefits of using violence in the future? Benefits: - Safety of myself and/or others - Respect Costs: - Jail - Harm to others Where am I now in the violence career path? I am in the position where I will only use force to preserve the safety of myself and/or others. ... What does retiring from violence mean to

you? It means to me the stage where I'm in life right now that violence is only necessary for the safety of myself and/or others. ... How could your acceptance of violence keep you from reaching your goals? It could effect me by putting me back into prison. An exact replica of my index offence basically. ... Do you feel your use of violence was always justified? Yes, the majority of the time. When was it not justified? When I would be intoxicated. Under what circumstances do you feel you absolutely have to use violence? If I feel that is the only option I have left in order for the safety of myself, and/or others. [Emphasis added.] [161] It is important to note that those comments were made prior to the commission of the predicate offences. Risk Assessment of Mr. Walsh After Completion of the VPP+ and Before Statutory Release Lorne Pierce [162] Mr. Pierce is a psychologist with an expertise in risk assessment. He has an MA in Counselling Psychology. He is registered with the College of Psychologists of British Columbia and employed with the CSC. Mr. Pierce has held positions at Pacific Institution and Mountain Institution. In these positions, he has facilitated treatment programs relating to violence prevention and conducted risk assessments. Mr. Pierce indicated that in his early practice he had conducted approximately 30 risk assessments under the supervision of senior

psychologists with corrections, and since 2008 has conducted between 10 and 15 risk assessments. [163] Mr. Pierce conducted a psychological assessment of Mr. Walsh on April 18, 2007, upon the referral of his case management team at Pacific Institution, following his completion of the VPP+ and in anticipation of his statutory release. Mr. Pierce indicated that the VPP+ is a high-intensity program with different admission criteria than the VPP. In addition to reviewing file materials, Mr. Pierce interviewed Mr. Walsh on April 13, 2007. Mr. Pierce described his methodology for risk assessment. He employed the PCL-R, the VRAG, and the Historical Clinical and Risk Management Guide (the "HCR-20"). He indicated that he had access to a previous assessment using those measures and wanted to determine if there were changes to those measures of risk. Mr. Pierce gave reasons for not employing other methods to assess risk. He indicated that the VRS (which I note was used by Dr. Nicholaichuk) was used before and after treatment, but is not used in risk assessment because of the limited research regarding its value in assessing recidivism. [164] I refer to portions of Mr. Pierce's report, pp. 8-9, under "Risk Measures": The Hare Psychopathy Checklist-Revised (PCL-R; Hare, 1991, 2003) is a psychological instrument that research has demonstrated is predictive of criminal behaviour outcome

criteria such as frequency of criminal offences, recidivism, parole violations and violence. Mr. Walsh's full-scale score on this instrument indicate that Mr. Walsh is in the HIGH range for future difficulties, including violence [References to Dr. LaTorre's earlier assessment deleted] His Factor 1 score was in the MODERATE range and his Factor 2 score was in the HIGH range The Violence Risk Appraisal Guide (VRAG) was designed to predict violent recidivism. This clinical rating scale contains 12 items. Research indicates that Mr. Walsh's score falls within a category where 76% of the offenders re-offend violently over a 7-year time period. This percentage increases to 82% over a 10-year period. Mr. Walsh's VRAG score, suggests he is at a HIGH risk to re-offend. Specific items associated with risk for violence were evaluated using the Historical, Clinical, and Risk Management Guide (HCR-20, version 2). In the guide, violence refers to an "actual, attempted, or threatened harm to a person or persons" (p. 24). Mr. Walsh scored particularly high on the following historical items: Previous Violence, Young Age at First Violent Incident, Employment Problems, Substance Use Problems, Early Maladjustment, Personality Disorder, and Prior Supervision Failure. On the clinical items, Mr. Walsh scored high on Impulsivity. Clinical items change over time so they need to be Mr. Walsh

reassessed. Mr. Walsh scored high on the following risk management items: Plans Lack Feasibility, Exposure to Destabilizers, and Stress. Risk management items involve postulates as to how well a person will be able to adjust to new circumstances. The ability of any person to adjust to their circumstances is dependent upon the feasibility of their release plans and their exposure to vulnerable situations. The Final Risk Judgement for Mr. Walsh was in the MODERATE to HIGH range. Overall, the clinical rating scales indicate that Mr. Walsh is at a HIGH risk for general and violent re-offending. [Emphasis added.] [165] In his direct examination, Mr. Pierce corrected Mr. Walsh's raw score on the PCL-R on the basis of a clarification in details of Mr. Walsh's youth record, namely, that he was convicted of assault and not assault causing bodily harm. Mr. Pierce indicated that Mr. Walsh's corrected PCL-R score was a 27.8, placing him in the 76th percentile with a three point margin for error. He indicated that this is below the raw score cut-off of 30 for psychopathy, but is still considered a high risk to re-offend. In relation to the VRAG, Mr. Pierce scored Mr. Walsh in the category where 76% of offenders re-offend violently over seven years and 82% over 10 years. He scored Mr. Walsh as moderate to high risk to re-offend under the HCR-20. [166] Under "Clinical Impressions," at pp.

9-10, Mr. Pierce states: Mr. Walsh is a 21-year-old Caucasian male with green eyes and brown hair. He was appropriately dressed with nothing unusual about his hygiene and grooming. His weight was proportionate to height; that is, 84 kilograms on a 180 centimetre frame. During the interview, Mr. Walsh was oriented to person, place, and time. Mr. Walsh did not appear to be suffering from a mental illness. For instance, there was no evidence of psychosis (e.g., thought disorder, delusions, or hallucinations). He did not show signs of suicidal or homicidal ideation. He admitted to being on antidepressants for 5 to 6 months while he was in the VPP to combat fatigue symptoms; however, he stated that he stopped taking them because they made things worse. Health Care confirmed his statement. Mr. Walsh presented as straightforward and sincere throughout much of the interview. He directed some of the questions during the interview. For example, he said, "Now we are going on to my plans." However, this attitude was not predominant. He appeared somewhat cocky at times. For example, he stated that he believes he has "charisma" with both his pro-social and criminal peers. He said his sexual exploits were "too many to count". When asked if others see him as a leader, he stated, "That is why I'm on the committee" (i.e., Inmate Committee). He also commented positively several times concerning

his academic abilities. At the same time he presented as somewhat insecure and immature in his posture and demeanour. He remarked about his small stature, his inability to gain weight, and his plans to keep to himself when he is released. He yawned several times, especially in the first interview. He explained that he had been up late last night, but he "usually yawns" and finds the behaviour "annoying" and counterproductive. He said that he continues to suffer from fatigue on a daily basis, which he is getting checked out with his doctor. Mr. Walsh proved to be a relatively accurate historian with the exception of certain details of his offending, his victimization, his debts, and his early behaviour problems. As in previous reports, he tended to portray himself as a victim, especially regarding, his violent offending. He minimized both of his violent offences by claiming that he was merely reacting to larger, more imposing victims. Despite his protest that his index offence was not as serious as the police reports stated, his reports differed. For example, during our interview, Mr. Walsh stated that he hit the victim twice with the hammer; however, he reported to Dr. LaTorre that he hit the victim "a total of three times" (2005/08/19) . After reading a draft copy of this report, he stated that he has always maintained that he hit the victim 3 times: "twice in the head and

once on the right arm." He also minimized his assault as a youth by contending the victim was not seriously hurt and he was only convicted of "common assault." [No weight to Dr. LaTorre's findings but not omitted for the sake of continuity] However, his FPS states clearly that he was convicted of Assault Causing Bodily Harm (Section 267 of the Criminal Code). After reading a draft copy of this report, he continued to maintain that he was convicted of common assault and pointed to a Pre-sentence report as evidence. But this report referred to the same section of the Criminal Code (i.e., 267b). [This is the error re Mr. Walsh's youth record that was corrected.] While his mother stated that his stepfather physically and verbally abused him as a child and Mr. Walsh previously stated he was punched by his stepfather (Pre Sentence Report, 2005/08/23), he contended during our interview that he was only victimized once by his stepfather when he attempted to hit his mother with a desk and hit him accidentally. He said that he has never been in debt; however, his mother reported to police that she believed he had drug debts prior to his arrest. Finally, he downplayed reports that he hit female children in elementary school. Mr. Walsh did acknowledge that he has a substance abuse problem; however he downplayed the extent of his substance use. He claimed to be "allergic" to alcohol and,

therefore, ha did not drink much. Nevertheless, he admitted to drinking 1 or 2 two ounce shots of whiskey prior to his Index Offence. During our interview, he claimed to have stopped using "chemicals" and stated that his use of drugs was limited to marijuana after age 15 or 16. He stated in the Pre-Sentence Report (2005/08/23) that he stopped using crystal methamphetamines and cocaine when he was 17 (i.e., 2003) because it was adversely affecting his health. Mr. Walsh tested positive for Tetrahydrocannabinol (THC) on 2007/03/22. He said that he recently attempted to participate in a moderate intensity substance abuse program; however, he was not accepted due to his position on the waitlist. He said that he is willing to attend substance abuse programming in the community. Mr. Walsh commented during our interview that dealing with conflicting values is probably the biggest factor he needs to work on after completing the VPP. He admitted regarding Index Offence "I went by my values and made the wrong decision." He remarked repeatedly throughout his Action Plan that he believes that violence is only acceptable for the "safety of myself and others." He remarked that violence is justified when "you are sober and protecting yourself or others." He said that violence is "sometimes necessary" but it "must be as minimal as possible." In the case of his Index Offence, "the severity was

harsh and unacceptable. I made the wrong decision to go that far." Regarding the risk factor of criminal associates, Mr. Walsh stated that it will be difficult for him to change his associates. He admitted that some of his associates in prison are not on the same path" as he is. He claimed, however, that he can still associate with them if they "respect my [pro-social] decisions." When I asked him to respond to his comment in his Action Plan that "No crime is acceptable" in light of his poor institutional behaviour, he stated that changing is an "ongoing process. ... You can't just pick up a basketball and be Michael Jordan." He said that his initial goal was to "stay out of violent incidences. Now I'm trying to work on my poor decision making." Unfortunately, Mr. Walsh's institutional behaviour has not been reflective of an inmate seeking parole and is more reflective of a young man still trying to fit in with his pro-criminal peers. To his credit, he has not been charged or convicted for violent institutional offences. Weighing the clinical rating scales as well as clinical impressions, it is apparent that Mr. Walsh is at a HIGH risk to re-offend. [Emphasis added.] [167] Mr. Pierce acknowledged relying on Dr. LaTorre's scoring of Mr. Walsh on the PCL-R and the VRAG and explained why some aspects of it were relevant to him. [168] Mr. Pierce was subject to lengthy

cross-examination, in particular regarding how he scored or rated Mr. Walsh on the tools he used in his assessment. Mr. Pierce acknowledged that he was of the opinion during his assessment that Mr. Walsh should complete a substance abuse program before release, but that Mr. Walsh did not get enrolled in any programs. He identified substance abuse as contributing to Mr. Walsh's associating with the "wrong kind of people," and drug dealing as contributing to his risk of violence. Mr. Pierce acknowledged that Mr. Walsh's participation in treatment programs for violence appeared positive and that Mr. Walsh appeared capable of making improvements. [169] What is notable about the risk assessment of Mr. Walsh conducted by Mr. Pierce is that given Mr. Walsh's commission of the predicate offences since that assessment was concluded, Mr. Pierce's assessment of Mr. Walsh as high risk to re-offend violently was, in fact, accurate. Assessments of Mr. Walsh for These Proceedings Dr. Patrick Bartel [170] Dr. Bartel is a registered psychologist with expertise in forensic psychology, including the diagnosis of psychological and psychiatric disorders and risk assessment for violence and criminality. He has worked with youth and adult offenders and in provincial and federal correctional systems. At present he is a contract psychologist for the Forensic Psychiatric Services Commission. [171] Dr.

Bartel conducted the s. 752.1(1) assessment in this case. Mr. Walsh did not participate in the assessment. Dr. Bartel indicated that not being able to interview Mr. Walsh limited his ability to determine Mr. Walsh's current state of mind, his demeanour regarding his version of the events in relation to the predicate offences and prior offences, and his plans for release in the future. Dr. Bartel's assessment was based on a review of Mr. Walsh's file material. With regard to the material used by Dr. Bartel to prepare his report, his letter dated April 19, 2010 (Exhibit 7), lists these documents. I note that the Chilliwack RCMP reports regarding several youth offences committed by Mr. Walsh relied on by Dr. Bartel are not in evidence in this hearing nor are the Chilliwack RCMP documents regarding Mr. Walsh's first adult conviction for aggravated assault, including witness statements, victim statements, photographs, and circumstances or the police collection of witness and victim statements in relation to the predicate offences. [172] For the facts of prior convictions as a youth, I have relied upon the Court transcripts (Exhibit 24) and for Mr. Walsh's first adult conviction for aggravated assault and the victim impact in the predicate offences. I have relied on the evidence before McEwan J. and not as described in Dr. Bartel's report. I also indicate that where Dr. Bartel refers

to numerous uncharged incidents of criminal conduct that Mr. Walsh reported to various sources during his youth, and while such material may generally serve to inform Dr. Bartel as Mr. Walsh was the source of this information, none of these incidents are admissible in evidence at this hearing, and in particular do not inform the legal issue of pattern of behaviour under s. 753(1)(a). I further note that Dr. Bartel is under the misapprehension that the predicate offences were committed while Mr. Walsh was under supervision. That is not correct. He had completed CSC supervision in the community three weeks prior to his commission of the predicate offences. To the extent that Dr. Bartel relied on information from Dr. LaTorre's report that is not otherwise before the Court, I have disregarded it. [173] From a clinical perspective, Dr. Bartel discussed Mr. Walsh as having anti-social personality disorder or APD, upon which Mr. Marxsen commented, and a history of substance abuse. He identified Mr. Walsh as having APD that is largely behaviourally based, tied to his background in criminality. He identified Mr. Walsh as having a substance abuse problem and identified that as an important risk factor for general offending and violent offending. I refer to portions of his report at pp. 10-12 under "Clinical and Diagnostic Issues": With regard to personality, Mr. Walsh presents with

behaviours and personality features consistent with an Antisocial Personality Disorder (APD) diagnosis. APD describes a pervasive pattern of disregard for and violation of the rights of others occurring since adolescence as indicated in this case by a failure to conform to social norms with respect to lawful behaviors (i.e., repeatedly performing acts that are grounds for arrest); impulsivity or failure to plan ahead; irritability and aggressiveness, consistent irresponsibility, and by lack of remorse, as indicated by being indifferent to or rationalizing having hurt, mistreated, or stolen from another. In addition, Mr. Walsh presents with some Narcissistic personality features including lack of empathy and entitlement. On the issue of substance abuse, reports indicate that Mr. Walsh has a significant history of illicit substance use and abuse dating back to preadolescence. Mr. Walsh has previously reported that he started using marijuana at age ten when he was smoking 5 to 8 joints daily. During his middle school years (i.e., grades 6-8), he started using several additional drugs including cocaine, alcohol, crystal methamphetamine, ecstacy, LSD, PCP, and large amounts of psilocybin mushrooms. Reportedly, the next two to three years involved daily and excessive abuse of numerous substances, primarily cocaine, crystal meth and mushrooms. Mr. Walsh has endorsed experiencing

addiction symptoms with respect to his use of cocaine and crystal meth including increased tolerance, physical withdrawal symptoms, and continued use despite the negative effects on his life (i.e., crime, incarceration, family conflict and instability). Mr. Walsh has also reported that he discontinued use of cocaine, crystal meth and several other drugs around age fifteen or sixteen (in another report he stated that he quit in 2003 when he would have been 17 year[s] old). Reports indicate that he has consistently maintained that he has quit all drugs with the exception of marijuana which he has reportedly continued to use on an occasional basis. With regard to alcohol use, reports indicate that Mr. Walsh was engaging in excessive and daily abuse of alcohol during his early adolescence. By his late teen years, he reportedly had decreased the frequency with which he abused alcohol to once per month. He nevertheless was prone to drink excessively (i.e., 13 to 20 ounces) when he did. Mr. Walsh has also previously reported that he is allergic to alcohol. He has denied symptoms of alcohol related addiction or dependence including increased tolerance or physical withdrawal indicators. [174] Dr. Bartel described the tools he used in his risk assessment. He referred to the PCL-R, the VRAG, and HCR-20. Dr. Bartel described the VRAG and the HCR-20 as primary, well-validated tools for

assessing risk for general violence. Dr. Bartel referred to the VRAG as a purely statistical tool devised to maximize prediction of risk. He described the HCR-20 as a structured professional judgment tool for guiding an assessment of the risk by the assessor. In comparison, he indicated that the PCL-R is not a risk assessment tool per se, but a checklist for assessing personality. Dr. Bartel stated that research has demonstrated that PCL-R results have the strongest relationship with future violence of any single prediction tool. [175] Dr. Bartel concluded that Mr. Walsh is at a high risk for violent reoffending using all three assessment tools. Under "Risk Assessment," at pp. 12 through 16, Dr. Bartel states: In assessing Mr. Walsh's risk, three major tools or protocols were used including the Psychopathy Checklist-Revised (PLC-R), the Violence Risk Appraisal Guide (VRAG), and the HCR-20. The former scale is not a measure of risk per se but is a tool that helps assess the personality construct of psychopathy which has been associated with violence risk and is an essential component of many risk measures including two additional protocols used here. ... Based on PCL-R scoring criteria, Mr. Walsh was assessed as scoring moderate to high the PCL-R, at about the 77.1th percentile when compared with male prison inmates. For Mr. Walsh, indicators of psychopathy include lack of

remorse, callous/lack of empathy, parasitic lifestyle, poor behavioural controls, promiscuous sexual behaviour, early behavioural problems, impulsivity, irresponsibility, failure to accept responsibility, juvenile delinquency, serious violations of conditional release, and criminal versatility. PCL-R factors that were assessed as partially present include grandiose sense of self-worth, pathological lying, need for stimulation, and a shallow affect PCL-R factors assessed as being absent include glibness/superficial charm, pathological lying, and conning and manipulative. I was unable to score was the factor of many short-term relationships. The VRAG is a 12-item scale that was designed to assess the long-term potential for violent recidivism among adult male offenders. It follows an actuarial model that attaches specific statistical weighting to different variables in order to maximize prediction of future violence. Research has shown that the VRAG has good predictive validity for predicting violence in general. Based on interview and file review, the following VRAG risk items were deemed to be present; separated from parents prior to age 16; elementary school problems, never married, nonviolent criminal history, failure on prior conditional release, meets DSM Criteria for Personality Disorder, no DSM Schizophrenia diagnosis, and a PCL-R score between 25-34. The following VRAG

factors associated with lower or absence of risk present in this case include; moderate (not severe) alcohol problems and victim injury (i.e., according to VRAG scoring lower risk is associated with more severe harm). Taken together, this score is associated with a High risk as 76% of offenders who have a VRAG score in this range/category will go on to violently offend within 7 years of release and 82% will violently recidivate within 10 years of release. Despite its predictive potential, the VRAG is limited as a clinical tool in that lacks dynamic or changeable risk factors, it cannot be used to select treatment targets, measure change, evaluate whether offenders have benefited from treatment, or predict when (or under what circumstances) violent offenders are likely to recidivate. Furthermore, the VRAG is limited in that it pertains to general, nonspecific violence and has limited validity when considering the nature, severity, imminence, and frequency of future violence. The HCR-20 follows a structured professional judgment model and presents a protocol that synthesizes available research, providing a general guideline to assess specific risk factors and assist the clinician in determining risk for the specific forms of violence recidivism as well as in identifying treatment and management targets. Research demonstrates that structured clinical judgements based on the HCR-20

are valid and reliable with moderate to strong relationships with the violence recidivism, equal to that of other actuarial measures such as the VRAG. [176] In his report, Dr. Bartel listed the following HCR-20 risk factors as "definitely" present in his assessment of Mr. Walsh: past violent offences; young age at first violent offence; relationship instability; employment problems, substance abuse problems; psychopathy based on Mr. Walsh's PCL-R score in the high range; early maladjustment; personality disorder, specifically anti-social personality disorder; prior supervision failure; lack of insight; negative attitudes; unresponsiveness to treatment; impulsivity; plans lack feasibility; exposure to destabilizers; lack of personal support; and noncompliance with remediation attempts. I will quote several portions of his commentary regarding several of these factors: 10) Lack of Insight. Mr. Walsh's lack of insight into his own difficulties appears to be variable. While in treatment, Mr. Walsh appears to display relatively good insight into his risk and comes across as understanding of treatment or program materials. Conversely, Mr. Walsh, despite taking intensive treatment and additional programming over the years, would appear to continue to see violence as often justified. Furthermore, when in the community counsellors have noted that he lacks insight and does not appreciate his level of risk or the need for intervention.

11) Negative Attitudes. Mr. Walsh's attitudes around the use of violence, the acceptable nature of his violence, and the victim blaming are among the most critical risk factors in this case. Although he has voiced some prosocial attitudes as well as regret regarding his past use of violence, reports suggest these are not firmly believed. Rather, Mr. Walsh seems to have entrenched beliefs that the victims of his violence deserved the harm caused them or were responsible for instigating the violence that lead to their injuries. He also minimizes his own culpability and continues to hold beliefs that violence is acceptable and justified in situations similar to his past violent offences. He also seems to have difficulty arriving at more prosocial and non-violent ways of resolving conflict. He also appears prone to misperceive hostile intent in others.

12) Unresponsiveness to Treatment. Mr. Walsh's unresponsiveness to treatment is indicated by continuing to hold violence supporting beliefs and reoffending despite participation in both the Violent Prevention Plus Program as well as the Violence Prevention Maintenance Program. Although when in the program Mr. Walsh was an active and involved participant who reportedly made gains in insight and appreciation, his continued offending ultimately indicates that he did not respond well to treatment. Indeed, Mr. Walsh has participated in multiple forms of intervention throughout his childhood, adolescence, and young adulthood, with little appreciable change in behaviour apart from an escalation in the seriousness of his violence. His unresponsiveness is also evidenced by repeated institutional infractions that include substance use as well as his noncompliance and subsequent revocations on Statutory Release.

13) Impulsivity. Although Mr. Walsh's impulsivity does not appear to be chronic or pervasive, he nevertheless demonstrates extreme impulsivity particularly when involved with interpersonal conflict or disputes.

17) Noncompliance with Remediation Attempts. Mr. Walsh's compliance with remediation attempts is superficial and minimal. Although he attends mandated appointments, he has most recently been seen as disengaged and to be simply filling in the requirements for attendance. He does not appear to be genuinely engaged in treatment and remediation, particularly when in the community. Although the above HCR-20 risk factors were identified as present, several factors are absent and are potential mitigating factors including major mental illness (likely absent), active symptoms of major mental illness, and stress. [Emphasis added.] [177] Dr. Bartel concludes as follows: Overall, given the presence of multiple risk factors, in my opinion, Mr. Walsh is at high risk for violence. With regard to the nature of Mr. Walsh's risk, his past behaviours suggest that he is at highest risk to engage in impulsive, unplanned and very serious violence. In this case the most likely scenerios for violence will involve his becoming angered or violent towards others while in the company of similarly antisocial associates or friends. He is prone to misperceive the intent of others or take personally slights or perceived injustices caused to himself or his friends. His risk for serious physical harm to victims is also high. It is likely that, if Mr. Walsh does engage in violence, it will likely be with the

purpose of seriously injuring or incapacitating the victim. With this comes also comes [sic] a higher likelihood of causing fatal injury, either purposefully or inadvertently. As stated previously, involvement in crime or antisocial culture will also place him at high risk as this places him in the company of other higher risk individuals with a greater likelihood of conflict. Substance abuse will also increase his risk dramatically. [Emphasis added.] [178] Dr. Bartel also discussed treatability and management of risk. In relation to treatability, he identified Mr. Walsh as performing positively in treatment. He was motivated, learned the material, and produced a well-articulated release plan; however, the treatment appeared to have little effect on Mr. Walsh's management of risk in the community. Dr. Bartel indicated that it is difficult to determine if Mr. Walsh can be prevented from participating in serious violence in the future. He described the nature of Mr. Walsh's risk as impulsive, serious violence related to attitudes and beliefs that justify violence and are based on aggressive impulses, substance abuse, and unstable and unpredictable situations. [179] Dr. Bartel was questioned in relation to Mr. Walsh's plan to relocate to Barrie, Ontario. Dr. Bartel expressed concern regarding the stability of this plan, as it is based on a dating relationship and that such

relationships often end. He stated that he would be concerned if that relationship ended and Mr. Walsh was without his only area of support. Dr. Bartel indicated that Mr. Walsh's risk is based both on his personality and environment and that his personality places him in the environment where his risk is engaged. Dr. Bartel concluded that further treatment will not assist Mr. Walsh and that he has shown very little success in applying what he has learned in treatment while in the community. [180] Under "Dangerousness and Long-term Offender Issues," at pp. 17-19, Dr. Bartel states: It is important to consider that violence risk is a dynamic construct that can change depending on circumstance or context and a continuation, addition, or cessation of risk factors. Should risk factors be lessened through circumstance or intervention, Mr. Walsh's risk will lessen as well. In Mr. Walsh's case, the changes that are required in order to lower his risk are cover areas of personality, attitudes, insight, compliance, impulsivity, anger and emotional control, access and use of social supports, and substance abuse. File information suggests that Mr. Walsh has made some gains in insight and in accepting some degree of responsibility for past violence. He has entered into and been shown to make good use of treatment and can identify risk factors salient to his life. When in a structured

setting, he can present as thoughtful, insightful, engaging, and at times remorseful. At other times, he can present as noncompliant, victim blaming, oppositional, and lacking in insight. What is clear, is that despite apparent gains made in treatment, once released back into the community, he eventually quickly resorts back into old behaviours and poor coping patterns. In other words, he moves back into antisocial communities and lifestyle and begins abusing substances again. Furthermore, when his adjustment deteriorates, he does not seem to seek out positive supports and resources for help. Rather, he appears to withdraw into dysfunctional coping and lifestyle habits even further, thereby increasing his risk and his exposure to stress and destabilizers. With regard to treatment needs, it is my opinion that, prior to Mr. Walsh ever being released into the community, he requires both intensive substance abuse treatment as well as a more sincere and motivated participation in an intensive violent offender treatment program such as the Violence Prevention Program (a newer version of the ITPVO) offered through the Pacific Institute in Abbotsford. The Violence Prevention Program is an eight month program that helps offenders deal with patterns related to their crime cycle. While learning about the behavioural, cognitive, interpersonal and affective components of violent offending,

the offenders focus on communication, addictions, thinking errors, human sexuality/relationships, anger management and empathy. One potential impediment to treatment programming is that it is doubtful that Mr. Walsh would be accepted into the Violence Prevention Program as he has already attended a similar program and it is uncommon for individuals to be permitted to take Intensive programming a second time Furthermore, individuals who to [sic] participate in the VPP for a second time are typically accepted on the basis of their motivation and self-directedness. Finally, apart from the type of intensive programming offered through the Pacific Institute, I am unaware of any additional programs, either in the provincial or federal correctional system, that would be of sufficient intensity or comprehensiveness to meet Mr. Walsh's treatment needs. Although intensive and specialized treatment is recommended, I am not certain that these forms of intervention will result in any substantial decrease in risk over the long-term. Mr. Walsh has already attended several treatment programs, albeit less intensive and comprehensive, with little or no affect in his predilection for violence over time. Evaluations from previously completed group indicate that Mr. Walsh participates well in groups and demonstrates good internalization and understanding of materials dealt with in the programs.

Once in the community and out of the influence of strict external controls, however, Mr. Walsh often reverts back to unhealthy patterns of lifestyle and coping, despite clear court ordered prohibitions as well as the knowledge that this is unhealthy. Thus, I am very doubtful that further treatment alone will be sufficient to lower his risk substantially. With regard to the potential for control of risk in the community, it is difficult to determine with any certainty whether Mr. Walsh can be prevented from engaging in further violence. Based on his own history, it would appear that legal conditions and sanctions have had little to no effect in keeping Mr. Walsh from committing the more serious types of criminal offences such as violence. Of great concern was Mr. Walsh's pattern of behaviour on his most recent Statutory Release. During this period, he was given very clear conditions requiring him to avoid association with known criminals. He nevertheless continued to do so despite the clear knowledge that this put him at risk and the negative consequences he incurred as a result (i.e., two revocations of Statutory Release). Another concern is that he does not appear to be prone or likely to enter into an open, unguarded and collaborative working relationship with a community-based correctional officer. Thus, it will be very difficult to have an accurate assessment of his risk

and need for management in the community. [Emphasis added.] [181] Dr. Bartel expressed his views as to the level of safeguards that would be appropriate to reduce the risk to the community posed by Mr. Walsh were he to be released: Should eventual release be deemed appropriate for Mr. Walsh by the courts, much focus will be needed in terms of release planning and ensuring appropriate supports are in place prior to any release. He will require long-term monitoring and a well structured plan for reintegration into the community. If he were to be released into the community, I believe he would require very intensive supervision and monitoring with ongoing professional/treatment support around anger, impulsivity and substance abuse management. Community treatment, particularly with regards to substance abuse, will be imperative as inpatient programs alone are of little benefit without community follow-up. Upon release and for a significant period time afterwards, Mr. Walsh requires placement in a highly structured residential setting where his activities and whereabouts can be closely monitored. Lessening of external controls and supervision would be warranted if Mr. Walsh is able to demonstrate both a long-term period of compliance with court-ordered and parole recommended conditions as well as low risk. I do not necessarily see him requiring permanent placement in a residential

program. Again, movement to more independent living would be advisable given a lengthy period of positive community adjustment. What Mr. Walsh he [sic] does require upon release is placement in a setting where there will be little likelihood of his engaging in substance abuse and being exposed to previous experienced destabilizers of criminal/drug user associates and unstructured time. He would need prohibitions against any form of substance abuse and ongoing screening for drug consumption. Any indication of failure to attend parole or treatment appointments, aggression, association with known criminals or substance use should result in temporary revocation of parole to ensure the community safety. [182] Dr. Bartel was cross-examined at length about many aspects of his report and his methodology. He acknowledged that it is an advantage in managing Mr. Walsh's risk that his risk factors are identifiable. Dr. Bartel acknowledged that when he commented in his report that Mr. Walsh was at high risk for violence, that risk means just that and that it was possible that Mr. Walsh might not re-offend without any intervention. However, he indicated that Mr. Walsh is at high risk for impulsive violence in particular. He agreed that Mr. Walsh's violence is impulsive and not predatory, and that his impulsiveness could decline over time. [183] Dr. Bartel stated that Mr. Walsh needs a

release plan with intensive controls, substance abuse treatment, pro-social support and peers, and a constructive job. He agreed that Mr. Walsh's identifiable risk factors were negative peers and substance abuse. He accepted that "a new community is not a bad idea." Dr. Bartel indicated that Mr. Walsh is not in the category of individuals who need to be externally managed forever, and that the hope is that over time Mr. Walsh could decrease the level of external controls as he increases his internal controls. However, based on Mr. Walsh's past behaviour after treatment and how poorly he did on supervision in the community, Dr. Bartel was not optimistic about Mr. Walsh successfully managing his own risk in the community. [184] Dr. Bartel reviewed aspects of Dr. Lamba's report and generally agreed with Dr. Lamba's conclusions. Dr. Bartel also commented on aspects of Dr. Nicholaichuk's report with which he took issue. He objected to Dr. Nicholaichuk's finding that Mr. Walsh's crying during the interview was inconsistent with him being a psychopath; Dr. Bartel stated that tearfulness is not always genuine and that psychopathy is assessed across time and events and not in relation to presentation in one interview. [185] Dr. Bartel also took issue with aspects of Dr. Nicholaichuk's methodology. He indicated that the MMPI-2 test employed by Dr. Nicholaichuk produces a score that bears

no relationship to personality disorder or criminality. While the MMPI-2 may identify behavioural attributes, Dr. Bartel said it did not assist with respect to assessing risk for violence. It is commonly used to measure psychological functioning for depression, anxiety, or paranoia. Dr. Bartel indicated that the Level of Service Inventory-Revised (the 'LSI-R") also employed by Dr. Nicholaichuk is a general tool to measure recidivism and is not specifically designed to assess violent recidivism. Further, Dr. Bartel stated that the VRS employed by Dr. Nicholaichuk is not widely used, is not well-validated, and does not have wide acceptance in the field for risk assessment. Dr. Bartel also took issue with how Dr. Nicholaichuk interpreted some of the scores attributed to Mr. Walsh on these tests and assessment tools. He did not agree that Mr. Walsh's high PCL-R score was due to immaturity and young age, as Dr. Nicholaichuk asserted. Dr. Bartel also said that while Dr. Nicholaichuk speaks of Mr. Walsh having integrated what he learned in treatment, his own view was that Mr. Walsh learned the concepts but did not develop the skills to apply what he had learned. Dr. Bartel also disagreed with Dr. Nicholaichuk's final comment that Mr. Walsh's "risk is largely a product of his social environment rather than a feature of his attitudes or personality functioning." In Dr. Bartel's view, it

is a function of both. Dr. Rakesh Lamba [186] Dr. Lamba is a forensic psychiatrist with expertise in the assessment of risk and treatment of violent offenders. He has worked at the Forensic Psychiatric Institution, for the CSC, and in hospital and outpatient psychiatric positions. Dr. Lamba currently works full-time for the CSC at the Regional Assessment Centre. He has completed close to 300 risk assessments for the National Parole Board in cases involving serious sexual offenders, dangerous offenders, and long-term offenders. [187] Dr. Lamba was asked by the Crown to conduct a risk assessment of Mr. Walsh. As Mr. Walsh did not participate in an interview, the assessment was based on Dr. Lamba's review of the materials provided by the Crown. I find Dr. Lamba's review of the materials to be generally accurate. [188] Dr. Lamba stressed that a risk assessment is not a questionnaire, but a rating based on the assessor's impression of the offender. He described actuarial tools and structured clinical judgment tools as the two main approaches to conduct a risk assessment. Actuarial tools score an offender based on specific factors; the score is compared to abnormal populations. Structured clinical judgment tools are lists of factors relevant to the judgment of the assessors or the assessor. [189] I refer to portions of Dr. Lamba's report, dated June 16, 2010, at pp. 11-13, under

"Diagnosis": Not being able to interview Mr. Walsh prevents me from commenting on his current mental status and on whether or not he currently suffers from an acute or major mental disorder. There is some suggestion in the file materials that he may suffer from chronic low grade depression (termed dysthymia). The significance of such diagnosis in Mr. Walsh's case is unclear to me but it is unlikely that it has significance with regard to his criminal behavior. There may be an association with drug use, in that low mood may be both a cause of as well as a result of use of or withdrawal from illicit drugs. Given Mr. Walsh's history I understand his drug use to be more related to his personality, particularly his proneness to boredom. Overall there is no indication in the file materials that Mr. Walsh has experienced a major or acute mental disorder. He clearly has a significant and early onset history of alcohol and drug abuse. Based on previous reports and descriptions of his pattern of use, I would agree with previous diagnoses, of alcohol abuse, marijuana abuse, cocaine and crystal methamphetamine (stimulant) abuse and dependence. Mr. Walsh has been in custody for the large majority of time since arrest on October 31, 2004 on the aggravated assault charge. He appears to have been in remission as for as drug and alcohol use is concerned in this controlled setting. Mr. Walsh had

reported that he quit hard or chemical drugs at the end of 2003 and thereafter smoked marijuana periodically while in the community before his October 2004 arrest. That would be a significant improvement but I note that the duration of such improvement was tested for a relatively short period before he was incarcerated. While drugs are often smuggled into prison, their availability tends to vary significantly. Also, the detection of drug use in prison setting is very variable. Overall, it does appear that Mr. Walsh has maintained remission of 'hard drug' use in prison. The concern is that in the brief periods of time that Mr. Walsh had community access, he associated with individuals involved in the drug subculture. Such association is a strong risk factor for Mr. Walsh, independent of his own use of drugs. Mr. Walsh meets the criteria of anti-social personality disorder. Also, previous assessors have commented on presence of narcissistic personality traits. A review of Mr. Walsh's history indicates a sense of entitlement, lack of empathy and interpersonal exploitation of others. Thus I concur that he also harbors narcissistic traits. There is a strong correlation between substance abuse and anti-social personality disorder. Moreover, DSM-IV TR is clear that when both conduct disorder and substance abuse have an early onset and both persist into adulthood, both disorders should

be diagnosed if all criteria are met, even if some anti-social acts may be a consequence of substance abuse (as in selling drugs or stealing to obtain money for drugs). [190] Dr. Lamba considered the issue of psychopathy in relation to Mr. Walsh in his report, at pp. 12-13, as follows: While not part of the DSM-IV or ICD (International Classification of Disease) classification systems, the construct of Psychopathy as a personality descriptor has been well accepted in clinical practice of forensic psychiatry. The most standardized and accepted tool to measure this construct is the Psychopathy Checklist-Revised (PCL-R) by Dr. R. Hare. This checklist consists of 20 items, each of which is scored 0, 1, or 2 based on the degree of match between the subject being assessed and the description of what that item intends to measure. The subjectivity in scoring varies across the items, with some items requiring significant subjective judgments on the back drop of a prototypical description provided in the scoring manual; other items have well defined specific objective criteria. The PCL-R serves both as a dimensional tool (how psychopathic an individual is, along a continuum of this personality) as well as a categorical tool (whether the individual meets a certain cut off score, at and beyond which the person is a sufficiently psychopathic to be classified as a prototypical 'psychopath';

the score at which he meets the criteria to be so classified). While not primarily designed as a tool to assess risk of recidivism, the PCL-R has over time shown to have utility as a risk assessment tool, with higher scores on the PCL-R being correlated with higher risk of recidivism including violent recidivism. [191] Dr. Lamba indicated that one may use tools such as the PCL-R in the absence of an interview with the offender, provided the materials available are adequate, but studies have demonstrated a tendency to underscore specific elements. He declined to administer the PCL-R in relation to Mr. Walsh as he considered himself lacking the information that he would have obtained from an interview, which allows a more accurate direct assessment of personal style. Based on his review of the material provided, Dr. Lamba indicated that Mr. Walsh presents with a significant number of traits or habits relevant to the PCL-R. [192] Dr. Lamba, however, reviewed scores that other assessors had obtained regarding Mr. Walsh in his report, at p. 13, under "Risk Assessment": I note that two previous assessors had the benefit of interviewing Mr. Walsh in scoring the PCL-R. Both, Dr. LaTorre and Dr. Pierce scored Mr. Walsh in the high range. [Reference to Dr. LaTorre not omitted for continuity but no weight is ascribed to his testing of Mr. Walsh.] Dr. Bartel who did not interview Mr. Walsh

scored him somewhat lower than the previous two, but still in the moderate to high range. Lower scores are not surprising when scoring is based on file review alone. All previous assessors using various instruments (PCL-R, VRAG, HCR-20) concluded that Mr. Walsh posed a high risk for violent recidivism. Another instrument the VRS (Violence Risk Scale) was used both at the onset of and at the end of Mr. Walsh's participation of the Violence Prevention Program. On both occasions his risk for future violence was assessed as high. There is thus strong consistency in assessment of Mr. Walsh's risk for future violence as high, by different assessors and by different instruments. Thus, there is some degree of confidence in this conclusion. [193] Dr. Lamba noted that Dr. Bartel's and Dr. Pierce's PCL-R scores of 28 and 27.8 for Mr. Walsh, respectively, both fell between the 80 and 84 percentile. Dr. Lamba indicated that when different assessors produce consistent scores one may place more confidence in their assessments. Dr. Lamba indicated that 30 has been said to be the cut-off for psychopathy, but that this number is subject to some debate as some in the field take the position that a score of 25 has as sound a predicate value regarding psychopathy as a score of 30. Based on the standard margin of error of three points, Dr. Lamba indicated that the scores of both Dr. Bartel and Dr.

Pierce regarding Mr. Walsh could have crossed the threshold of 30, thus Dr. Lamba indicated that Mr. Walsh has a fairly significant psychopathic personality. He stated that personality traits are relatively consistent over time. The risk of violence associated with psychopathy remains stable until the fifth decade of an individual's life, where there is some diminution or "burn out" in APD (Anti-social Personality Disorder). [194] Dr. Lamba stressed that risk assessments are not about predictions but about assessing risk relative to other offenders. Dr. Lamba held that Mr. Walsh was at high risk for violent reoffending and that such risk was likely to remain stable over the next two to three decades. He characterized Mr. Walsh's violence as impulsive and reactive, but nonetheless based on an element of choice. These choices to associate with individuals involved in the drug trade, to settle old scores, or to defend himself or others are guided by his personality. [195] Like Dr. Bartel, Dr. Lamba used the HCR-20 in assessing Mr. Walsh and set out his findings, at pp. 13-14, as follows: I have used the HCR-20 (the Historical, Clinical and Risk Management- 20) to assess Mr. Walsh's risk for violence. This is a structured clinical judgment tool. Amongst the historical items Mr. Walsh has a history of previous violence, onset of violence at young age, relationship and employment

instability; he has a significant history of substance abuse problems, history of early maladjustment, a diagnosis of personality disorder, significant Psychopathy and failure on prior supervision. He does not have a history of major mental disorder. He meets 9 of 10 Historical risk factors. Amongst the clinical items, his insight is at best partial; while he is able to understand some risk factors at a superficial or theoretical level, this understanding does not extend to his misinterpretations in the situations where he acts out violently. This is evident for example in the position he put forth, even at the end of the VPP Plus Program that in his offence against Mr. Wilson, he had no solution to the situation other than violence. He harbors significant negative attitudes, or anti-social, pro-criminal attitudes. He continues to show evidence of impulsivity in his behavior as evident in his involvement in the index offence shortly after being in the community. His condition has been unresponsive to treatment as evident by his failure to avoid high risk situations. He does not have any active symptoms of mental disorder. He meets four of five Clinical factors. Risk management items are future oriented and are necessarily harder to assess given that they require some degree of future forecasting. Plans lack feasibility-I am not in a position to know any specific plans Mr. Walsh

may have made at this point to organize his life in the short to medium term future. He also has some limitations in his ability to form such plans, given his current legal situation and the uncertainty around it. However, there is no evidence that Mr. Walsh has formulated feasible, attainable plans and followed through these at any point in his life and thus the likelihood of this happening in the future is low. Exposure to destabilizers - associations with negative peers or involvement in the drug subculture will be severely destabilising for Mr. Walsh and he has not demonstrated any ability to stay away from these destabilizing influences. Lack of personal support - Mr. Walsh's personal support is limited to his mother. I am unable to assess the extent to which even this support is available currently or in the future. Non compliance with remediation attempts- he has a history of undertaking treatment with the institutions, but poor compliance with treatment and monitoring in the community, as evident by his superficial working relationships with the counselors and parole officers in the community. Stress- I am not in a position to assess if any specific stressors are foreseeable for Mr. Walsh. Four of five Risk Management factors as assessed currently, suggest higher risk. Overall the HCR-20 suggests a high risk of violence. Apart from the high degree of risk, I note that

the risk of violence he is likely to pose is severe and potentially fatal. [Emphasis in original.] [196] Dr. Lamba discussed the limited value of assessing the offender based on their behaviour and treatment in jail. He indicated that if an offender performs poorly in jail, that is a sign that they will not do well in the community; however, if an offender does well in jail that is not necessarily helpful in assessing how they will do in the community, as jail is an artificial and controlled environment. [197] Under "Treatment and Treatability," at pp. 14-15, Dr. Lamba states: In this context the goal of treatment is not limited to addressing any clinical abnormality that is present but more importantly to reduce the likelihood of the undesirable behaviors believed to be linked to those clinical abnormalities. Thus, 'treatability' or effectiveness of treatment is a somewhat abstract and complex concept that necessarily includes a future connotation- 'to what extent is this individual likely to be successful in generalizing the treatment gains obtained at present to future circumstances'- and not merely whether or not the individual has in the present or past 'successfully' completed a treatment course. From the materials available it is hard to assess Mr. Walsh's degree of motivation for treatment. By motivation for treatment I refer to a sense eagerness to undertake treatment

that comes from a high degree of insight and acceptance of one's problems (in this case that one's behavior has serious negative impact on others and is not acceptable). In spite of Mr. Walsh having completed the Violence Prevention Program, Plus, it is hard to assess how intrinsically motivated he was. Even harder to assess, particularly without the benefit of an interview is his current level of motivation for future treatment. His level of participation in treatment has been reasonable in the past and is likely to be so in the future. However I note that Mr. Walsh has already received the appropriate type and intensity level of treatment, in keeping with his needs, in spite of which he re-offended violently very soon after release. In terms of future treatments that may be offered to him, there is no other type of treatment to be offered to him, only repetition. Very recently Correctional Service Canada has piloted a new program model in the Pacific region in the form of Integrated Correctional Program Modules, in lieu of various different programs being previously offered. It has only been implemented this year and it is too early to tell if it can successfully replace the previous program delivery model. This new program appears to be more general in its scope and much less tailored to the type of offending and dynamics of individual offenders than previous programs. It

also however includes the principles of cognitive behavioral therapy, as did the previous models. Regardless of the specific model, cognitive behavioral therapies incorporating the concept of relapse prevention are only starting points, from which the particular individual then needs a very high level of motivation and effort to practice the skills learnt on a day to day basis such that they become second nature to counter one's inherent personality traits. Mr. Walsh has so far shown poor judgment in using any lessons learnt from treatment he undertook. The treatment he undertook proved not very effective and he was unable to generalize any theoretical gains he had. At present his anti-social personality traits appear to be dominant and over powering. In addition to cognitive behavioral based treatment for violent offending, Mr. Walsh is in need of substance abuse treatment. [Emphasis in original.] [198] Dr. Lamba is of the view that Mr. Walsh has poor manageability. He recognized that the proposed relocation to Barrie, Ontario as a plan, and the presence of personal support to do so, are positive for managing risk. However, he indicated that a plan is bi-directional, as it requires both the "environment" and the "person", the support of others, and the implementation of the plan by the offender. Dr. Lamba questioned whether Mr. Walsh would hold a job if provided one and stated

that relocating - the "geographical cure" - would not resolve issues with risk if an individual is not inclined to manage that risk in the new location. Dr. Lamba held that only past behaviour could inform how Mr. Walsh might do in the future. [199] Under "Manageability in the Community," at p. 15, Dr. Lamba states: While treatability refers to the individual subject and the particular conditions/disorders that the individual harbors, manageability refers to external factors that may provide structure and limits to the person, such that the undesirable behaviors may be prevented or contained. Very generally speaking most offenders could be said to be manageable to some extent for some periods of time with the help of external structure such as supervised halfway houses, conditions to follow and restrictions put in place. Manageability oft particular offender, in my view is a complex interplay between the level of risk one is trying to manage and the degree to which the individual offender is motivated to manage his own risk and form a collaborative alliance with persons responsible to supervise him. It also depends on the individual level of strengths that an individual offender brings into the mix, such as pro-social supports, employability. Several factors bear negatively on Mr. Walsh. When released on Statutory Release, Mr. Walsh did not form a trusting relationship with his

supervising officer and provided no meaningful information to her. He attended for counseling sessions but his participation was lacking substance. He continued to associate with negative peer group. He has very few pro-social supports and very few marketable skills. These factors speak to poor manageability. On the other hand, I note that the experience of supervision of Mr. Walsh to draw conclusions upon is relatively brief. [Emphasis added.] [200] Dr. Lamba was cross-examined at length. He recognized that the VRAG and PCL-R are designed to assess risk, but do not assess manageability and that manageability is more difficult to predict than risk. He acknowledged that Mr. Walsh does not have any unusual factors associated with his risk and that a plan would need to address combinations of criminal associations, drug use and trafficking, and an unstable lifestyle. Dr. Lamba acknowledged that resolving substance abuse issues would assist in managing Mr. Walsh's risk, and that Mr. Walsh admitting to his drug use is a positive factor in his treatment manageability. Dr. Lamba acknowledged that Mr. Walsh has done some educational upgrading. When the proposed relocation to Barrie, Ontario was put to Dr. Lamba, he agreed that it did have elements to address Mr. Walsh's risk factor, however, he stated that while a plan can be positive, one has to look at the offender and their

commitment to the plan. Dr. Terry Nicholaichuk [201] Dr. Nicholaichuk is a clinical and forensic psychologist with expertise in the assessment and treatment of violent offenders. He maintains a private practice for criminal and civil matters and conducts research with a primary focus on mentally disordered offenders through the Regional Psychiatric Centre for the CSC in Saskatoon, Saskatchewan. Dr. Nicholaichuk has completed 70 assessments for dangerous offender and long-term offender proceedings concerning violent and sexual offenders, both court appointed and at the request of counsel. [202] Dr. Nicholaichuk was retained by the defence to conduct a risk assessment of Mr. Walsh. His draft report is dated June 20, 2010, and his final report is dated October 13, 2010. In addition to interviewing Mr. Walsh, Dr. Nicholaichuk interviewed by telephone Teresa Walsh, Tanya Gagne, Roseanne McKenzie, and Michel Gagne. Dr. Nicholaichuk indicated that Mr. Gagne best described the plan for Mr. Walsh's release. Mr. Walsh would relocate with the Gagne family to Barrie, Ontario, and they would be willing to provide housing, supervision, support, and employment for Mr. Walsh. [203] As Dr. Nicholaichuk is the only forensic professional to interview Mr. Walsh, I will quote in some detail from his report as to Mr. Walsh's future plans and how he views his past. I will first refer to portions of

Dr. Nicholaichuk's report, at pp. 3-4, under "Relevant History": ... In addition, when I reviewed Dr. Bartel's report with him, Mr. Walsh was largely in agreement with its contents with only a few exceptions. For example, he agreed that as a youth, his behaviour was problematic. He admitted to early onset substance abuse, associations with other, criminalised youths, and a pattern of interpersonal violence which began when he left public school and entered middle school. He also admitted to occasionally resorting to crime in order to support his own drug habit. Mr. Walsh took issue with some of the other comments contained in Dr. LaTorre's report. For example, the report contains a reference to Mr. Walsh's promiscuity. Mr. Walsh claimed he exaggerated when he was examined by Dr. LaTorre and said the exaggeration was the result of his immaturity and his lack of understanding of the seriousness of the situation. Another of his objections with regards to earlier assessments of him pertained to the allegations that he beat up girls when he was in public school. According to his report, he had a crush on a girl in his class, but didn't know how to express himself. He said that he impulsively tripped her, causing her to fall, as a way of gaining her attention. According to his report, this incident is probably the origin of the subsequent reports that he was violent towards girls

when he was a child. Mr. Walsh also disagreed with Dr. LaTorre's claim that he was psychopathic. [204] Under "Mr. Walsh's Self-Report and Interviews with his Community Based Sources of Support," at pp. 11-14, Dr. Nicholaichuk states: When questioned about the reports prepared written about him when he was younger, such as that of Dr. LaTorre, Mr. Walsh admitted that at the time he was likely the person described in those reports. He described himself as young, immature, cocky and thoroughly committed to his more criminalized peers. He said he was loud and he bragged a lot and was aggressive rather than assertive. He admitted to being impulsive and reacted to conflict without thinking, often with aggression. He admitted to his history of drug use and the problems it has caused himself and others. Mr. Walsh also described the chaos of his upbringing due to his stepfather's drug abuse, and the violence he directed towards his mother. Apparently, arguments and violence were very common in the home. Ordinarily arguments were over money due to Mr. Hall's cocaine habit and subsequent debts. Mr. Walsh said his mother and stepfather separated in 1993 but reconciled in 1994 and moved to Kelowna. Eventually they had to leave the city because of Mr. Hall's drug debts. They were paid by Mrs. Walsh and the family then moved to Chilliwack, British Columbia. The couple remained together for

one year and Mr. Hall then left Mrs. Walsh for another woman who Mr. Walsh believes he used to support his drug debts. Mr. Walsh reported he received reasonably good grades while in public school and reported that the only trouble he was in was as a result of tripping the young girl he had a crush on, an incident which I described above. He said "I felt like a retard". He said he had lots of apparently positive friends as a child and did not present as a significant problem until he entered what he referred to as a "middle school". Upon this transition, his social sphere changed and he began to associate with a significantly negative peer group who use drugs and alcohol and who were often violent. He said he saw his friends fight and got caught up in it. Mr. Walsh became enmeshed in this group and it appears, eventually came to outdo his peers with respect to his aggression although he denied being violent until he entered middle school. His grades decline significantly in Grade 7 and his behaviour deteriorated to the degree that he was expelled in Grade 8. He admitted that his mother found him uncontrollable and he was twice placed in foster care. He found one of the placements to be a positive experience and described the foster parents as "normal people, they had a couple of kids, it was like a family, everyone was getting along". Apparently the second placement was less

positive and he emerged from it an even more angry youth that [sic] he was going in. Since being expelled from school, Mr. Walsh has engaged in a number of upgrading activities. He attended an alternative school in the community and attempted correspondence school. As a result of his more recent efforts, he has apparently earned or is close to earning a Grade 12 certificate. He also reported that when he was in the community, whenever he had an opportunity to work, he worked he said he found it easy to find jobs that [sic] had difficulty maintaining employment, presumably due to his criminal activities. At the time of his arrest, for the predicate offence he was working at Johnson Packers as a labourer. When I met with him he gave me a list of courses that he had taken while on remand. These included Grade 12 English and mathematics, Automotive Fundamentals parts one and two, and Human relations parts one and two. He is currently enrolled in Principles of Mathematics 12, Economics 12 and Accounting II. When questioned about his behaviour during his last Federal sentence and period of release in the community, Mr. Walsh admitted that when he first entered the federal system he was immature, resistant to change and not particularly cooperative. I believe he had one institutional charge for fighting at the beginning of that sentence. Sometime during that sentence, what he

described as "an adult switch clicked on" and he decided to try and make some changes in his life. Although he received a number of additional institutional charges, these were not violent, although they were admittedly indicative of a certain lack of maturity which is not uncommon among young, incarcerated males. He took the Violence Prevention Program and received reasonably positive reports although as I noted above, his risk for violence continued to be rated as high. The record indicates that Mr. Walsh's conditional release was twice suspended prior to the expiry of his Federal warrant. [...] he thought the relationship between he and his parole officer was somewhat conflictual and he admitted to responding in a defensive manner when confronted by the officer. He admitted he was less than forthcoming with his Parole Officer when he was released and admitted to having a bad attitude when interacting with the Officer. He said that in the future, he would hope to form a better working alliance with, and be more honest with his supervisors. [205] Of particular relevance are Mr. Walsh's comments about how, given his participation in the VPP+ while serving his first federal sentence, he came to re‑offend violently. In this regard, at pp. 14 - 15, Dr. Nicholaichuk notes these comments by Mr. Walsh: When I asked Mr. Walsh how he came to relapse following what appears to have been

a successful completion of a violence prevention program, he stated "I was overconfident and thought I could handle contact with my friends. I was wrong and here I am." He said that when he was released he was working for a meatpacking company making relatively little money. His friends were continuing to deal drugs and apparently encouraged him to deal drugs again because of the easy money. He said that they told him to come with them, he could make some money, buy a house and a car and "catch up". Although he was experiencing financial difficulties Mr. Walsh did not want to approach his mother for help reportedly because he felt guilty for everything he had put her through when he was younger. He said "Chilliwack is small and it makes it easy to go back to my comfort zone and make those decisions" (referring to his decisions to become part of the criminal life). He said that even now his mother only visits him occasionally "she's sick of the whole situation, she doesn't like to see me in here". As I noted above, Mr. Walsh has been working at improving his education. He was described as a quiet, non-problematic inmate. He told me he was trying to avoid the other offenders in the facility as he found them to be a problematic influence and was trying again to improve his situation. He said he understood to some degree, how he came to relapse into violence after his release from

federal custody. As I noted above, he thought he could manage the influence of his criminal peers but admitted he was wrong. When I asked him to reflect upon his criminal and social history, particularly his violence he said "it's retarded and gross and I don't like to think about it". He stated he felt badly for the people he has harmed. At one point, when discussing his past criminal violence, Mr. Walsh began to cry. Although I think there is no doubt that he was affected by his own predicament, I did get the sense that he did experience some empathy for his victims, for instance at one point he said of his violence "You shouldn't be able to do things like that. It's tough to have that happen to you". Mr. Walsh said that when he would become "caught up in the moment" and lose track of the consequences "you don't even make it a choice, just react without thinking". "I'm working on controlling my impulses. It's the thing that's going to keep me out of prison. I think to myself, I'm already in jail don't make it worse. It's frustrating thinking about what an idiot I've been - making wrong decisions - I feel like a failure". He observed that there are many opportunities for violence in prison but he has been trying to restrain himself and mange his more aggressive impulses. ... [206] Dr. Nicholaichuk explained the methodology for his assessment. His approach to risk assessment is

of particular significance as it is markedly different from the more unified approach taken by all the other experts who assessed Mr. Walsh. Dr. Nicholaichuk indicated that he is familiar with the PCL-R and that he brought it with him to the interview but did not use it because Mr. Walsh was not presenting with the personality characteristics of someone who would generate a high score. Instead, Dr. Nicholaichuk used the MMPI-2, a scale used to assess personality disorder that does not measure risk. Dr. Nicholaichuk indicated that the MMPI-2 measures many of the same characteristics in common with Factor 1 of the PCL-R and that it has been the subject of a great deal of research. [207] Dr. Nicholaichuk's assessment of Mr. Walsh differed from other experts in these proceedings. He found Dr. Bartel's report to be balanced but handicapped by not having interviewed Mr. Walsh, so that he was not aware of the plan to relocate with the Gagne family. Dr. Nicholaichuk attributed the high score on the PCL-R in Dr. LaTorre's report to immaturity and exaggeration on the part of Mr. Walsh at the time of the assessment, and indicated that the report was not informed by the passage of time. [208] Dr. Nicholaichuk is of the view that Mr. Walsh is manageable in the community and recommended that he go to a halfway house in order to provide him with an opportunity to function under community

supervision. [209] Under "Assessment," at pp. 17 - 20, Dr. Nicholaichuk states: Contrary to the presentation described by Dr. LaTorre and evaluations conducted during Mr. Walsh's Federal sentence, I did not find him to be grandiose, manipulative or conning in his demeanour. Rather, he was soft-spoken polite and importantly, displayed a full emotional range. I did not find him to be emotionally shallow or superficial, For example, as I noted above, he presented as remorseful when discussing the harm he had inflicted upon his victims and at times broke into tears. This is not a reaction one would expect from a psychopath. In addition, he seemed to be fully aware of the grief he has caused to his mother and appeared truly remorseful for his past behaviour. I did not find that Mr. Walsh gave a particularly self-exculpatory account of his history, although I expected him to do so. Dr. LaTorre reported that Mr. Walsh scored in the high range on the PCL-R. In order to score in this range one must have a history of social deviance which is truly the case here, as well as a pattern or constellation of personality characteristics which are somewhat similar to Narcissistic Personality Disorder. [Not omitted for continuity but no weight is attached to Dr. LaTorre's assessement of Mr. Walsh.] In order to examine Mr. Walsh's personality functioning, I administered the MMPI-2 which is a

commonly employed scale intended to assess the presence of personality disorder and various other forms of psychopathology. It also includes several validity scales as a check for response bias. ... Although there were no marked elevations on the clinical scales obtained on this administration of the MMPI-2, Mr. Walsh's responses were characteristic of individuals who experience mild to moderate anhedonia and personal distress. They can be argumentative, and angry although they are usually able to control the expression of their anger. Periodic angry outbursts as well as acting upon these impulses are not uncommon events. These observations are certainly consistent with Mr. Walsh's earlier history. Individuals such as .this are likely to have experienced a history of poor interpersonal relations and significant social maladjustment, often accompanied by poor work history. Their home lives are often unpleasant and their caregivers are seen as somewhat critical and uncaring. When these characteristics are accompanied by the denial of personal responsibility for problems, the prognosis for treatment is often poor. However, this did not appear to be the case here. I could find no evidence of the sort of grandiosity and self entitlement normally found among individuals who receive high scores on the PCL-R. When I asked Mr. Walsh about the discrepancy between Dr. LaTorre's report and

his current presentation, he admitted that when he was 18, he was cocky and likely met many of the criteria which would have placed in the upper range of the PCL-R on Factor 1. However, he said he has been trying to correct his attitudes and behaviours. The Log from the Pre-trial Centre is consistent with his self-report, and Dr. Bartel's report. I also assessed Mr. Walsh on a commonly employed and validated scale of criminal risk, the LSI-R. Mr. Walsh fell within the high medium risk range for criminal recidivism of any sort. Individuals such as this can be expected to recidivate at about 45 to 55% over one year, assuming no interventions are attempted These individuals require maximum surveillance while on probation, and halfway house placement is not appropriate unless intensive supervision and treatment are also provided. The sources of risk given by the scale are of course, Mr. Walsh's previous criminal history, his problems with education and employment, and concomitant financial difficulties. He has significant problems in the areas of his companions, as well as his alcohol and drug use. However, I did not find his attitudes to be particularly criminal in orientation and importantly, he now appears to have a concrete and significant source of social support of a non-criminal nature. I also evaluated Mr. Walsh on a normed and validated scale designed specifically to

assess his risk for violence. A description of scale follows: "The VRS was designed to integrate the assessment of violence risk, criminogenic need, client responsivity, and treatment changes in a single tool. It assesses a client's level of risk of violence, identifies criminogenic needs (i.e., dynamic risk variables) linked to violence as treatment targets, evaluates treatment readiness (an important responsivity variable) for each of the treatment targets, and measures improvement (or lack thereof) in the treatment targets as a result of treatment. Treatment improvements are linked to a quantitative reduction in violence risk." (Wong & Gordon, 2006) Mr. Walsh's risk for violence, as given by his score on the VRS, placed him in the medium risk group with regard to his risk for new violence. Individuals such as this show a probability of violent offenses of about 32% over 4.4 years if there is no change. Many of the factors associated with his risk for violence are historical and therefore cannot be changed. These include his current age, his age at his first violent conviction, and the stability of his upbringing. However, the scale contains a number of factors which are considered to be dynamic, and which are therefore subject to modification. These include markers such as violent lifestyle, criminal peers, a pattern of interpersonal aggression, and substance abuse. Mr.

Walsh was very open in admitting to his problem areas such as criminalized peers, the use of weapons in his assaults, as well as his pattern of substance abuse. In my assessment on him, I thought he was making an honest attempt at resolving the problem of his violent behaviour and I considered him to be in the action stage of the change process. The remand Centre log provides at least partial support for his claim that he is trying to change his behaviour. In my view, Mr. Walsh's previous high rating on the PCL-R is most likely due to his immaturity and young age. Since then, he has engaged in programming and has apparently been able to acquire and to some degree integrate the concepts he has learned in treatment. Unfortunately; during his last release he relapsed, largely due to the presence of criminalized peers and the absence of any significant source of pro-social support. His aggression and his assumption of the "tough guy role" was probably a mechanism for gaining social approval from a negative peer group in the absence of a positive one, and is probably the most important determinant of his prior history of violence. It is expected that if he continues with his current attempts at rehabilitation, he will likely be manageable in the community, particularly with degree of supervision and support available through most halfway house placement. [210] Dr. Nicholaichuk was

subject to cross-examination by the Crown. He acknowledged that Mr. Walsh may have been inclined to present himself in a positive light, but that would not have been sufficient to invalidate his report. [211] Dr. Nicholaichuk identified Mr. Walsh as having an APD; however, he stated that approximately 85 % of federal inmates have APD. Dr. Nicholaichuk employed the LSI-R tool used to assess static and dynamic sources of criminal risk and to estimate general criminal recidivism. Mr. Walsh fell on the high-medium risk range for general criminal recidivism and scored slightly above the normative group of inmates that the norm for the scale is set to. Individuals in this range could be expected to recidivate at approximately 45 to 55 % over one year. [212] Dr. Nicholaichuk also employed the VRS, a scale of static and dynamic factors used to assess risk of violence. Mr. Walsh's score on the VRS placed him in the medium risk category, what Dr. Nicholaichuk characterized as the second from the highest risk band. [213] In relation to his methodology, Dr. Nicholaichuk stated that he felt he accomplished the task of assessing Mr. Walsh through slightly different means. Dr. Nicholaichuk indicated that the HCR-20 is a valid tool, but said he wanted to use an instrument that he was familiar with and specific to the issue of violence. He indicated that the PCL-R is not specific to violence.

For these reasons, he chose the VRS. Dr. Nicholaichuk also stated that the VRAG is based on a cohort from the 1970s and needs to be re-normed on current populations to be valid, so he chose not to use it. [214] Dr. Nicholaichuk disagreed with the positions advanced by several experts in these proceedings. Contrary to Dr. Bartel's position that the VRS is rarely used for risk assessment, Dr. Nicholaichuk stated it is mandatory for pre and post-VPP programs in federal corrections. [215] On the use of the PCL-R without an interview, Dr. Nicholaichuk stated that it is not to be used without an interview and that the College of Psychologists of British Columbia Code of Conduct does not permit an opinion to be made on an individual's psychological functioning without direct contact. I note that this view is not shared by other professionals. [216] He acknowledged that Mr. Walsh's manageability is uncertain and conditional on a number of factors, including his continuing rehabilitation, education, and the support of the Gagne family, avoiding anti-social peers and an ability to follow orders. Dr. Nicholaichuk indicated that he agreed with Dr. Bartel's risk assessment that Mr. Walsh is at a high risk to re-offend violently, with the caveat that this opinion applies if nothing changes. Dr. Nicholaichuk recommended that because of Mr. Walsh's risk for violent reoffending that he be

subject to the maximum period of supervision in the community. Findings on the Evidence Generally [217] In order to determine these issues, the Court has considered all the evidence before it, including the circumstances of past and present offences and the circumstances of Mr. Walsh. These include his personal background; his involvement with the youth criminal justice system and efforts made at that time through community programs, supervision, and support to assist him; his adult criminal convictions and the details pertaining to them, particularly as his convictions as an adult in 2005 and 2009 provide the legal basis for the present application; his performance in the community unsupervised and while on statutory release; his performance in jail as an adult; past efforts at treating him in federal corrections directed at alleviating his risk for future physical violence directed towards others; and past and present psychological and psychiatric assessments of him, with a particular focus on his present and future risk to re-offend violently. [218] I find the following facts regarding Mr. Walsh to have been proven beyond a reasonable doubt: · From the time he was very young he has had serious and persistent problems with anger and aggression. · He came from a home where there was extreme domestic violence in which he became embroiled. · His Youth Court record and the

circumstances of his youth offences indicate that he was prone to impulsive behaviour and was at times involved in violence, acting with other young people, to avenge a perceived wrong. · As a youth he developed a serious drug problem, including addictions to speed and cocaine, which he seemed to address in treatment. Alcohol abuse seemed to be less of a problem for him. However, he still seemed to be very drawn to those trafficking and using illegal drugs. · Despite his professed interest while he was young in furthering his education and being perceived as bright, he did not do so when he was provided with many chances. In prison he studied and received his grade 12 equivalency. · Despite appreciating the need to avoid his criminal peers and develop more pro-social friends, he generally has not done so with the exception of the Gagne family. · He repeatedly violated the terms of probation orders concerning curfews, not attending school, and at times failed to report or went missing from home. · He had continuing problems with people in authority, particularly teachers, but also seemed upon occasion to have a positive working relationship with a probation officer or support worker. · As a youth he performed poorly under supervision in the community except towards the end of the last probation order, when a number of sources reported a real improvement in his behaviour and his

motivation. · As a young person very considerable community and institutional resources were expended to provide him with educational, recreational, and pro-social supports, in addition to drug rehabilitation and violence prevention programs, in and out of custody. · About six months after Mr. Walsh turned 18 years old he committed an aggravated assault for which he received a prison sentence of the equivalent of five years, resulting in a three year sentence to be served in a federal prison after being given two years credit for pre-sentence custody. In committing that offence he caused grievous bodily harm to his victim with a hammer that had catastrophic and long-lasting effects. · In federal prison Mr. Walsh took the VPP+ program taught by Mr. Marxsen and appeared to do well in terms of learning the material designed to help him manage his criminal and violent behaviour in the community. · Mr. Walsh's own writings while in prison and taking the VPP+ indicate a profound lack of understanding of the negative cost to himself and others of his aggression and impulsively violent behaviours. Whatever he did learn or whatever insight he gained did not prevent him from reoffending violently relatively soon after the completion of the program once he was in the community. · The risk factors for Mr. Walsh reoffending violently were clearly and repeatedly identified by himself and

others as associating with peers involved in crime or other anti-social behaviours including drug dealing and substance abuse. · After the VPP+ and prior to his statutory release, Mr. Walsh was assessed by Mr. Pierce as at a high risk to reoffend violently. · While on statutory release and while being supervised in the community by a parole officer, and after having seen Dr. Smiley for three counselling sessions in which Mr. Walsh was perceived just to be going through the motions, the RCMP repeatedly observed Mr. Walsh with individuals known to be involved in crime and drug dealing, some of whom were without question known to be so by Mr. Walsh. This includes Mr. Plante, his co-accused in relation to the incident giving rise to the predicate offences. · Mr. Walsh did poorly when released into the community on statutory release in terms of not being forthright with his parole officer and not avoiding situations he knew were high risk in terms of his reoffending. His statutory release was suspended twice. · Mr. Walsh committed the predicate offences on November 21, 2008, three weeks after warrant expiry date, and during the first period of time he had been in the community not under supervision since October 31, 2004. In committing these offences he caused grievous bodily harm to his victim with a knife. The injuries would have been life-threatening without prompt medical

treatment. · Mr. Walsh's behaviour in provincial and federal institutions is mixed: at times he was reported as doing well and to be polite and respectful, and at other times he is reported as aggressive, rude, disrespectful, to have disobeyed minor rules on many occasions, and occasionally committed a major disciplinary infraction not violent in nature. · Mr. Walsh remains open to taking programs in prison to address his issues and upgrade his education. Findings in relation to the Evidence of Dr. Bartel, Dr. Lamba, and Dr. Nicholaichuk [219] The recent decision of the Court of Appeal in R. v. Pike, 2010 BCCA 401, raises two issues of significance to these proceedings. [220] The first is the need for the judge hearing applications of this kind to carefully consider whether the opinions of the experts with regard to Mr. Walsh's risk to re-offend are supported in the evidence. [221] In Pike, Levine J.A. for the court, stated: [42] The issues on this appeal centre on unproven charges of sexual offences that were discussed in the reports of the experts on the sentencing hearing, and by the trial judge in his reasons for sentence. The appellant claims that the trial judge erred by relying on allegations of conduct that were not proven beyond a reasonable doubt, and on expert opinions that were based on unproven allegations, with the result that a pattern of violent sexual

offending, which formed the basis for the finding that the appellant was a dangerous offender, was not proven. Further, the pattern of behaviour that was properly established on the evidence was a pattern of short-lived, reactive, impulsive violence, which does not support the finding that the appellant was a dangerous offender. [43] For the reasons that follow, I agree with the appellant's arguments. ... [58] In this case, however, no evidence was adduced to prove the otherwise unsubstantiated allegations of sexual violence. On the basis of the evidence adduced at the hearing, the trial judge could not have determined, for example, whether the appellant sexually assaulted his girlfriend in 1990, assaulted his spouse in 1998, or intended to attack the woman in 2000. All of these allegations informed the assessments of the expert witnesses, and were included in the trial judge's summary of the offender's history of conduct. [59] This error is compounded when one considers that the only incident which shared the premeditated, predatory characteristics of the 2001 sexual assault was the alleged "stalking" incident of 2000, the circumstances of which have no probative value. The other prior sexual offences (both unproven and proven) were all found by Dr. Tomita to be part of the appellant's normal, well-established pattern of unplanned, hostile, reactive violence, which arises in

situations where he is frustrated or angered. [60] Ultimately, when all unproven, inadmissible conduct is expunged from the analysis, the pattern of sexual offending is reduced to only two incidents: the 1988 juvenile conviction, which was presented as a bare conviction with no context provided; and the 2001 conviction for violent, predatory sexual assault. Of those, only the 2001 incident is predatory in nature. Those incidents are not sufficient to satisfy the requisite pattern of behaviour and threat to the public, particularly the risk of violent sexual reoffending found to be determinative by the trial judge. [Emphasis added.] [222] Although the present case is less complicated than Pike, at least in terms of the number of incidents of violent offending said to constitute a "pattern" within the meaning of s. 753(1)(a)(i) and (ii), it is clear that the factual underpinnings of the alleged "pattern" must be very closely scrutinized. [223] The second cautionary point in Pike, at para. 63, is a reminder that "a psychiatric opinion is not evidence of the facts upon which it is based" and "[i]t remains, however, the undivided responsibility of a sentencing judge to make all requisite findings of fact including those regarding the alleged conduct upon which a psychiatrist bases his or her opinion." [224] In Pike, the Court of Appeal concluded that: [68] In this case, the experts

relied in significant part on unproven and unacknowledged allegations. Without fully cataloguing the inclusion of unproven allegations material to the experts' assessments, it is relevant to highlight the factual bases for the opinion that the appellant posed a serious risk for violent sexual reoffending. ... [72] As has been noted, expert witnesses are entitled to consider a wide range of information in forming their opinions. It was the responsibility of the trial judge to determine which facts were established at the requisite standard of proof, and assess the ultimate value of the opinion accordingly. [73] In this case, the psychiatric risk assessments (particularly in relation to violent sexual offending) relied on unproven allegations, many of those allegations were included in the trial judge's reasons, and the trial judge did not address how the expert evidence would be affected if those allegations were expunged. On the face of his reasons, it is reasonable to conclude that the trial judge reached his conclusion that the appellant posed a "high risk of violent sexual re-offending" by improperly relying on expert opinions based on unsubstantiated allegations. [225] Psychiatric evidence (to which I would add psychological and psychiatric evidence of a forensic nature, including those with a professed expertise in risk assessment for future offending) is recognized by the

Court of Appeal in Pike, at para. 61, to play a vital role in dangerous offender proceedings as it provides the sentencing judge with "an expert opinion on the interpretation of past conduct and likely future conduct of the offender based on his or her past behaviour" (R. v. Neve, 1999 ABCA 206 at para. 182). [226] In Pike, at para. 65, the Court of Appeal cautions sentencing judges who receive such expert opinions to carefully evaluate them in assessing their proper weight. To fail to do so is "[f]or the court to accept a expert opinion without scrutinizing and assessing its foundation is, effectively, to put that expert in the role of judge" (Neve at para. 191). [227] The Court of Appeal in Pike cited Neve with approval regarding the considerations to be taken into account when considering such evidence: [64] In Neve, the Alberta Court of Appeal listed the following non-exhaustive list of considerations to assess the value of psychiatric evidence (at para. 189): 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 the psychiatrist) arising from

the personalities, the circumstances of the 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; and 7. the strengths and weaknesses of the information and material that is relied on. [Emphasis added by B.C.C.A..] [228] It is with these directions, cautions, and considerations in mind that I approach the expert psychological and psychiatric opinion evidence in this case. [229] I accept that all three professionals assessed Mr. Walsh in the manner they considered suitable to the task at hand and in keeping with their professional standards. [230] Having carefully reviewed their reports, the factual material they referred to, the tests and measures they used to assess Mr. Walsh, and the results as well as their clinical impressions where appropriately factored in, I find that I accept the opinions of Dr. Bartel and Dr. Lamba over those of Dr. Nicholaichuk. [231] I find Dr. Bartel's approach to the court-ordered

assessment of Mr. Walsh and the manner he displayed in court as one of fairness and open-mindedness. With the limited exceptions that I have already noted, Dr. Bartel's review and synthesis of information made available to him about Mr. Walsh is balanced and accurate. He was open to suggestions favourable to Mr. Walsh. However, he was also realistic about Mr. Walsh's apparent inability to put into practice what he learned in treatment and the potential "downside" to a "geographic cure" as significantly reducing Mr. Walsh's otherwise high risk of violently offending. He very clearly noted that one can never be certain about future risk because it is conjecture, and obviously if Mr. Walsh had a significant period of supervision that showed he was manageable in the community, restrictions could gradually be lessened and his risk to violently re-offend would be seen as lower. [232] I also accept Dr. Bartel's evidence that the tools he used to assess Mr. Walsh's risk to violently re-offend in the future are the well-accepted, widely-used, standard tools (the PCL-R, the VRAG, and the HCR-20), and while there is an accepted margin of error in the scoring of these instruments, that he applied them accurately and properly. [233] Dr. Lamba's conclusions about Mr. Walsh, based on his review of essentially the same material, are generally consistent with those of Dr. Bartel. While Dr.

Lamba's overall conclusions are similar to those of other assessors, his overall tone is more clinical, in keeping with his background in medicine and psychiatry. He exercised his judgment not to use the PCL-R in relation to Mr. Walsh when he was unable to interview him, which I interpreted as indicative of independent professional judgment. Dr. Lamba was somewhat less likely to admit that positive change was possible in a sustained way for Mr. Walsh, but he quite fairly described the progress Mr. Walsh made in the VPP+. Dr. Lamba impressed the Court as being very experienced in risk assessment and having sound clinical judgment. His review of the materials relevant to Mr. Walsh's past was generally fair and accurate and what he drew from them had a solid basis. This was the first assessment where he had been retained by the Crown as opposed to being court-appointed through the Forensic Services Commission, or doing an assessment for the National Parole Board. [234] I find Dr. Nicholaichuk's report and his evidence as to the assessment of future risk of violence posed by Mr. Walsh to be considerably less useful for a number of reasons. By choosing not to use the same tools to assess Mr. Walsh as other assessors (which he could have, in addition to any others he considered to be fitting), the Court is deprived of a recent assessment of Mr. Walsh, with him participating in an

interview, that would enable a meaningful and proper comparison with the test results obtained by other experts. Dr. Nicholaichuk made this choice despite the fact that he was provided with a copy of Dr. Bartel's report in his materials and therefore must have known the approach to risk assessment and the methodology used by another established professional in his field. With regard to his choice of the VAG to assess risk, none of the other experts in the field, including Mr. Marxsen and Mr. Pierce, agree that the VAG was useful and accurate in this regard. All said that the VAG was predominantly used to assess the efficacy of treatment. [235] However, as an experienced forensic psychologist, a benefit of Dr. Nicholaichuk's involvement is that he was able to provide the Court with his impressions of Mr. Walsh at the present time, Mr. Walsh's present plans, and his views on his motivation to change. The fact that he found Mr. Walsh to be genuine, communicative, to display some feelings of remorse, and to be realistic about his prior negative attitudes and behaviours is generally positive. While one may accept that Mr. Walsh says he is motivated to change the behaviours that contribute to his risk of violently reoffending, the critical issue is his ability to implement these changes when he is not incarcerated. [236] What Dr. Nicholaichuk's report does not address in a meaningful

way is the likelihood of Mr. Walsh violently reoffending in the future. Furthermore, upon reading Dr. Nicholaichuk's report and hearing him testify, I have a clear sense that Mr. Walsh selectively disclosed information to him so as to minimize negative aspects of his past behaviour (for example, the extent of his non-compliance with the term of his statutory release that he not associate with those involved in crime, specifically drug dealing) and described his future plans so as to portray everything in its most favourable light. There is, for example, no real discussion about why Mr. Walsh re-offended in November 2008, when the pro-social influences of the Gagnes were present in his life, and no exploration of why he reconnected with his long-time friend and criminal associate, Mr. Plante, despite numerous warnings and his own insight that such a choice was a significant risk factor. Dr. Nicholaichuk writes at p. 20: Unfortunately, during his last release he relapsed, largely due to the presence of criminal peers and the absence of any significant source of pro-social support. His aggression, and his assumption of the "tough guy role" was probably a mechanism for gaining social approval from a negative peer group in the absence of a positive one, and is probably the most important determinant of his prior history of violence. [237] I also note that even Dr. Nicholaichuk,

whose report and testimony is the most favourable regarding Mr. Walsh, attributes to Mr. Walsh a risk of criminal recidivism by the LSI-R as "within the high medium risk range for criminal recidivism of any sort," and stated, "Individuals such as this can be expected to recidivate at about 45 to 55 percent over one year, assuming no interventions are attempted." Dr. Bartel indicates there are problems with him interpreting these figures, and I note that the risk of criminal recidivism is not projected beyond one year. I also note that criminal recidivism used in this context is broader and not limited to violent criminal recidivism. [238] Finally, I note that even Dr. Nicholaichuk is very guarded in relation to Mr. Walsh's future manageability in the community. His positive conclusions are conditional and circumscribed. In his concluding paragraph, he states: It is expected that if he continues with his current attempts at rehabilitation, he will likely be manageable in the community, particularly with degree [sic] of supervision and support available through most halfway house placements. Finally, the presence of a significant source of pro-social support in the form of his girlfriend and her parents, represents a marked change in Mr. Walsh's circumstances. In fact, if he is able to relocate to a different province with their assistance and support, I believe Mr. Walsh to be

manageable in the community. He has already established that it is very difficult for him to avoid his criminalized peers in the small community of Chilliwack. Relocation appears to be practical solution, and coupled with positive community based support, is likely to have a significant effect in mitigating whatever risk he presents. In Mr. Walsh's case, his risk is largely a product of his social environment rather than a feature of his attitudes or personality functioning. [Emphasis added.] [239] Dr. Nicholaichuk seems to accept Mr. Walsh's underlying belief that other people and events beyond his control are the root cause of his violent offending, a view to which I do not subscribe. I also note that Dr. Nicholaichuk indicated that he agreed with Dr. Bartel's risk assessment that Mr. Walsh is a high risk to re-offend violently if nothing changes. [240] In conclusion, Mr. Pierce, Dr. Bartel, and Dr. Lamba, using or considering the results of the same risk assessment tools, place Mr. Walsh at the high risk to re-offend violently in the future. I accept their assessments in that regard. Release Plan [241] In terms of Mr. Walsh's release plan, based on his relationship with his girlfriend, it is evident that Tanya Gagne has a genuine affection for Mr. Walsh. However, it is also very clear neither she nor her parents have any real insight as to how they would manage day-to-day

life with Mr. Walsh, nor do they have any experience in this regard. The plan to relocate to Barrie, Ontario may be feasible for them, but if Mr. Walsh's relationship with Ms. Gagne ends his continuing ability to live with and be supported by her family would quickly dissipate. The Gagnes are in my view extremely naïve about the extent of Mr. Walsh's difficulties and the extent to which he was an instigator in the recent offences and not merely someone led astray by others. [242] However, I find that what is most telling about the potentially beneficial influence of Ms. Gagne and her family on Mr. Walsh's behaviour is that he was already involved with her, had contact with her family, and had worked for a number of days with Mr. Gagne at the time he committed the predicate offences. In my view, that seriously undermines their potentially rehabilitative effect on Mr. Walsh. Consideration of Mr. Walsh as a Dangerous Offender [243] Mr. Walsh's adult criminal record is comprised of three convictions. On November 1, 2005, he was sentenced for one count of aggravated assault by McEwan J. to three years imprisonment in addition to credit for two years of pre-sentence custody in relation to the offence committed on October 31, 2004. On March 26, 2009, he was convicted of aggravated assault and assault with a weapon, the predicate offences that found this application, committed on

November 21, 2008. [244] Having reviewed the evidence and made the necessary findings, I now turn to an application of the law to the facts. The relevant provisions in this application are contained in Part XXIV of the Criminal Code. The Position of the Crown [245] Counsel for the Crown submits that Mr. Walsh ought to be found to be a dangerous offender either under s. 753(1)(a)(i) or (ii) based on the criteria contained therein, and once found to be a dangerous offender ought to receive an indeterminate sentence based on s. 753(4.1), as Mr. Walsh remains a high risk to violently re-offend and is inclined to use weapons. [246] In relation to the two offences of aggravated assault, Mr. Walsh caused grievous bodily harm to each of his victims with a weapon. These offences form the basis for the "pattern of repetitive behaviour" or "pattern of persistent aggressive behaviour" that are among the required elements of these dangerous offender categories. The Crown suggests that I may also consider Mr. Walsh's youth record. The Crown submits that Mr. Walsh's pattern of violent reoffending is likely to continue in the future and that I may rely on the expert opinion evidence before the Court to support that finding. [247] In support of its application that Mr. Walsh be found to be a dangerous offender and sentenced to an indeterminate sentence, the Crown relies upon the following

cases: R. v. Pike, 2010 BCCA 401; R. v. Trevor, 2010 BCCA 331; R. v. Johnson, 2008 BCCA 149; R. v. R.E.T., 2005 BCCA 642; R. v. Wormell, 2005 BCCA 328; and R. v. Allan, 2009 BCSC 1245. [248] Failing a finding that Mr. Walsh meets the criteria for a dangerous offender, the Crown submits that Mr. Walsh is clearly a long-term offender and ought to be subject to the maximum period of ten years' supervision under a long-term supervision order following a further term of incarceration. In relation to the term of imprisonment to be served prior to release on the long-term supervision order, the Crown provided the Court with authorities that support a range of sentence for aggravated assault from two to six years imprisonment. Those authorities are: R. v. Trainor, 2010 BCSC 829; R. v. Perrault, 2006 BCCA 215; R. v. Haj-Ahmed, 2007 BCCA 143; R. v. Whitman, 2006 BCSC 865; R. v. Johnson, 131 C.C.C.(3d) 274, (B.C.C.A.); and R. v. Addicott, 2003 BCSC 737. The Position of the Defence [249] The defence submits that the Court ought not to find Mr. Walsh to be a dangerous offender on either of the grounds relied upon under s. 753(1)(a) because the Court ought to have a reasonable doubt on the issue of whether the evidence presented satisfies the legal requirements of whether a "pattern" has been proven. [250] The defence reminded the Court of the principle fundamental to the dangerous offender

designation and the imposition of an indeterminate sentence: that it is to be reserved for "that small group of offenders clustered at or near the extreme end of offenders in this country" (to borrow the language used in Neve). This approach is even more important given the increased likelihood of the imposition of an indeterminate sentence following the amendment contained in s. 753(4.1). [251] The defence submits that as Mr. Walsh is in the high risk category in terms of committing further violent offences in the community, and given that the key to reducing this risk is to teach Mr. Walsh to learn to manage his behaviour in the community, finding Mr. Walsh to be a long-term offender and placing him on a lengthy supervision order following a further short period of incarceration is the fit and proper disposition in this case. Further, the defence pointed out that there are serious sanctions to be visited upon an offender on long-term supervision who refuses or fails to comply with the terms of the long-term supervision, insofar as, pursuant to s. 753.3(1), he may be convicted of an indictable offence and is liable to a further term of imprisonment not exceeding ten years. [252] The defence advises that Mr. Walsh has been detained since his arrest on November 23, 2008, which as of the date of this decision is a few days over two years and six months pre-trial custody, for

which he is entitled to two-for-one credit. Therefore, Mr. Walsh is entitled to receive credit for already having served the equivalent of a five year sentence in relation to the predicate offences. Recognizing that the authorities would need some time to coordinate long-term supervision for Mr. Walsh in the community, the defence submits a further short provincial sentence is appropriate. [253] In addition to making reference to various authorities relied upon by the Crown, the defence provided the Court with the decision of R. v. Baptiste, 2008 BCSC 1041. The Legislation Purpose [254] The overarching objective of the dangerous offender legislation is to protect the public from offenders who can be expected to inflict serious harm on others in the future. [255] In R. v. Lyons, [1987] 2 S.C.R. 309 at 329, Mr. Justice La Forest, for the majority, explained that the legislation addresses the situation in which preventing the offender from reoffending takes precedence over other sentencing objectives: 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. 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. Part XXI merely enables the court to accommodate its sentence to the common sense reality that the present condition of the offender is such that he or she is not inhibited by normal standards of behavioural restraint so that future violent acts can quite confidently be expected of that person. In such circumstances it would be folly not to tailor the sentence accordingly. [Emphasis in original.] [256] In R. v. Jones, [1994] 2 S.C.R. 229 at 290, Gonthier J., writing for the majority, explained that the indeterminate sentence, although punitive, is primarily a preventative measure: The overriding aim is not the punishment of the offender but the prevention of future violence through the imposition of an indeterminate sentence. An indeterminate sentence is not an unlimited sentence. The Relevant Provisions [257] The Crown rests its application in this case on s. 753(1)(a)(i) or (ii), or both, which state: 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 ... Proof of a Serious Personal Injury Offence [258] Both grounds of the present application require that the predicate offence or offences of which Mr. Walsh has been convicted are serious personal injury offences as defined in s.

752. The applicable portions of s. 752 defining "serious personal injury offence" state: (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 ... [259] With regard to the predicate offences committed on November 21, 2008, Mr. Walsh was convicted of aggravated assault contrary to s. 268(1) of the Criminal Code, which is an indictable offence that carries a maximum penalty of 14 years imprisonment. He was also convicted of assault with a weapon arising from the same incident, contrary to s. 267(a) of the Criminal Code, which was proceeded with by indictment and carries a maximum penalty of ten years imprisonment. [260] Mr. Walsh's conduct giving rise to these convictions involve the use of violence against another person and was conduct that endangered the victim's life. Therefore, the serious personal injury requirement of s. 753(1)(a) is met. Proof the Offender is a Dangerous Offender under s. 753(1)(a)(i) or (ii) [261] It is accepted law that proof beyond a reasonable doubt is required to find an

offender to be a dangerous offender under any of the definitions contained in s. 753(1)(a) or (b) of the Criminal Code. This is succinctly summarized in Pike: [29] It is common ground that the Crown is required to prove beyond a reasonable doubt all of the elements necessary to find an offender is a dangerous offender: see Clayton C. Ruby et al., Sentencing 7th ed. (Markham: LexisNexis, 2008) at §17.29, 17.43; see also R. v. Read, (1994) 47 B.C.A.C. 28, [1994] B.C.J. No. 1491 at para. 76; Neve at para.

133. This is particularly so with respect to each alleged act of past conduct that establishes the required pattern. [Emphasis in original.] [262] In Pike, the Court of Appeal adopted the approach of the Court of Appeal for Alberta in Neve in relation to the elements to be proven to establish the patterns as required under s. 753(1)(a)(i) and (ii): [25] To find that the appellant was a dangerous offender, the trial judge was required to determine whether the appellant constituted a threat of the kind specified in s. 753; that is, a threat to the life, safety or physical or mental well-being of other persons. As explained by the Alberta Court of Appeal in R. v. Neve, 1999 ABCA 206 at paras. 102-105, 137 C.C.C. (3d) 97, (a judgment that addresses many of the same issues raised on this appeal), the question of whether an offender constitutes such a threat requires proof that the offender's past conduct meets one of the thresholds set out in s. 753(1)(a) (here, specifically, (i) or (ii)). It is only when that threshold is established on the basis of evidence that the judge can go on to consider whether, in light of that finding, the offender constitutes a threat; that is, will continue to be dangerous in the future, past the date on which he or she would ordinarily be released from prison for their most recent crime. [26] In Neve (at paras. 107-108), the Court set out the elements

that must be proven to establish the prescribed patterns of behaviour in ss. 753(1)(a)(i) and (ii): What does it take for the Crown to prove the required patterns of behaviour under ss. 753(a)(i) and (ii)? While "pattern" is not defined in the Code, what is defined in each of ss. 753(a)(i) and (ii) are the various components instrumental in creating the pattern. If 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. 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. [263] The Court of Appeal in Pike further defined the relationship between the required pattern and the assessment of future risk. Levine J.A. held as follows: [76] The issue is the

required relationship, if any, between the requisite pattern of past conduct and the assessment of future risk. [77] The Crown's position is that the relationship is limited. Crown counsel argues that once a pattern meeting the bare conditions of either s. 752(a)(i) or (ii) is established, the Crown may move beyond the confines of the pattern and the risk associated with its repetition to satisfy the remainder of the application ̶ whether the offender constitutes a threat to the life, safety or physical or mental well-being of other persons. Thus, although the predicate offence in this case may be insufficient to justify a dangerous offender designation, as the Crown conceded, its main purpose is to open the door and give the court the power to declare the appellant a dangerous offender, largely on the basis of his risk as an untreated sexual offender to reoffend in a manner similar to his conviction for sexual assault in 2003. [78] The appellant, on the other hand, says that the pattern defines the risk. He says that in assessing an offender's risk to reoffend, it is his risk to reoffend by acting in accordance with his established pattern of behaviour, or by failing to restrain that pattern of behaviour, that must be assessed ̶ not his risk to reoffend in some manner other than that. ... [80] The "threat" under s. (a) is to be determined "on the basis of evidence" of a

pattern of behaviour under ss. (i) or (ii). That pattern, in turn, must be linked to the predicate offence. [81] Breaking any of these connections ̶ between the predicate offence, the pattern analysis or the threat assessment ̶ distorts the careful balance of the provisions, and risks serious injustice. This is revealed more clearly when one considers the provisions broadly. [82] The predicate offence is not a meaningless, statutory trigger. It is a "last straw", described by Marshall J.A. in R. v. Newman (1994), 115 Nfld. & P.E.I.R. 197 at para. 69 (Nfld. C.A.) as a "one last act of serious personal violence to anchor the offender's pattern of pre-existing unrestrained or uninhibited behaviour". It takes its significance, in part, from the fact that it demonstrates that the relevant pattern of behaviour continues. As Marshall J.A. explains, it serves an important purpose: "[i]t guards against visiting one of the most serious criminal sanctions upon someone who has essentially abandoned a past pattern of intensely serious violence on the basis of a relapse of relatively less grave proportions" (at para. 72). This explains why the pattern and predicate offence must be related. It would be inconsistent and unfair if the ultimate threat determination were to be made on the basis of a perceived threat unrelated to either the predicate offence or the pattern of behaviour it reveals

as still persisting. [Emphasis added.] [264] Just as the pattern and the predicate offence must be related, the pattern must also be linked to the threat of the commission of similar offences in the future. In Pike, this relationship is explained as follows: [83] Similarly, the pattern analysis is inextricably linked to the ultimate threat assessment. It is the basis for predicting the future behaviour which threatens others. As explained in Neve, the two are linked in the sense that "the court cannot make a determination that an offender constitutes a threat in the manner specified in s. 753(a) except on the basis of evidence that meets at least one of the specified behaviour thresholds" (at para. 103). The Court went on to state (at para. 110): 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. ... [90] [...] Whatever "pattern" is identified, it should be described in such a way as to provide a basis to predict the likelihood of the same behaviour occurring in the future. Although the pattern should not be described in such a level of detail as to obscure the "common

characteristics which embody and reveal the ... essential elements of the pattern" (Dow at para. 23), the inverse is equally true. Where the pattern is described in no greater detail than the language of the provision itself, it offers no basis for descriptive or predictive analysis, and the essential elements are equally obscured. [Emphasis added.] [265] In R. v. Bruneau, 2009 BCSC 1089, Sinclair Prowse J. considered the issue of pattern in the context of Mr. Bruneau's sexual offending: [177] Rather, a pattern can be established by as few as two offences: R. v. B.W.N., 2003 NBQB 207, 270 N.B.R. (2d) 201 at para. 121, citing R. v. P.M.C., [1998] B.C.J. No. 3225 (S.C.). In P.M.C., Wilson J. concluded at para. 20 that s. 753(1)(a)(i) would be satisfied where repetition existed with some similarity between the incidents such that it could be said that they formed a pattern. Repetition may be established by as few as two incidents: Counsel for the offender did not provide any other cases dealing with the issue of pattern of repetitive behaviour, (and my own review of those cases indicate that each turns on its facts, and they are thus not particularly helpful) but he did provide a definition of "pattern" from the New Shorter Oxford English Dictionary, 1993. The most appropriate definition provided there is "an arrangement or order discernible in objects, actions, ideas, situations,

etc.". I conclude, then, for 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 paedophilia. 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. [emphasis added] [178] However, the fewer the incidents, the more similar they must be: R. v. Neve, 1999 ABCA 206, [1999] 1 W.W.R. 649 at para.

113. Similarity may be established in two ways: (1) where there are similarities in terms of the kinds of offences or (2) where the offences themselves are not similar in kind, but in result, in terms of the degree of violence inflicted on the victims: R. v. Deckert, 2001 SKQB 26, 201 Sask.R. 161 at para. 94 and Neve at para.

113. Evidence of Pattern in the Present Case [266] Both the aggravated assault of Mr. Wilson on October 31, 2004, and the aggravated assault and assault with a weapon of Mr. Yarrow on November 21, 2008, share the following similarities: 1. Both victims were males that Mr. Walsh perceived as imminent physical threats in confrontations caused or provoked by Mr. Walsh.

2. Neither of the victims was previously known to Mr. Walsh.

3. Both assaults were precipitated by Mr. Walsh becoming involved, impulsively and without any sign of restraint, in disputes between others out of a profoundly misguided sense of justice and/or loyalty. To this extent, both assaults were to a significant degree retaliatory and vengeful.

4. In both assaults the force used by Mr. Walsh was unnecessary or wholly excessive.

5. Both assaults involved multiple blows by Mr. Walsh.

6. Both involved weapons.

7. Both assaults were sudden, excessively violent, and in no way justified by the circumstances of the situation.

8. Mr. Wilson was unarmed and Mr. Yarrow had turned and put down the bottle he was holding.

9. In neither assault was there evidence that Mr. Walsh was significantly intoxicated.

10. Both assaults caused very considerable physical harm to the victims that could have resulted in death. [267] The two assaults also have a number of differences: 1. The assault of Mr. Yarrow was more premeditated (insofar as it involved Mr. Walsh, after having his head put through the truck window by Mr. Radford, driving to Radford's residence about a half hour later to find those with whom he had had the prior altercation). This included arming himself with a knife if he was not previously so armed earlier at the Rhombus Hotel, seeking the assistance of a third male for backup, and stopping along the way to permit his co-accused to buy pepper spray. The assault on Mr. Wilson arose more immediately out of the situation.

2. One assault involved a hammer and the other a knife.

3. Although Mr. Yarrow was not known to Mr. Walsh, Mr. Kampen (also known as McGowen), who was with Mr. Yarrow, was someone with whom Mr. Walsh had a long-standing grudge, and Mr. Radford, another companion of Mr. Yarrow's, had put Mr. Walsh's head through Mr. Schellenberg's truck window earlier that day. Mr. Wilson had no prior relationship with Mr. Walsh. [268] In considering the issue of pattern, I am of the view it is appropriate to consider only these two offences of aggravated assault and not any offences committed by Mr. Walsh as a youth. In my view, the threatening offence is not similar, the paperboy incident resulted only in Mr. Walsh's conviction for obstructing a police officer by providing a false name, and Mr. Walsh's exact role in the assault offence is not clearly proven beyond a reasonable doubt. [269] Despite the few differences noted above, which merely tend to highlight the more premeditated nature of Mr. Walsh's violent intentions with regards to his aggravated assault of Mr. Yarrow, I find it proven beyond a reasonable doubt that the two aggravated assaults committed by Mr. Walsh in 2004 and 2008 constitute a clear and easily identifiable pattern of repetitive behaviour, of which the predicate offences form a part, that show a failure to restrain his behaviour in the past. These two aggravated assaults committed by Mr. Walsh almost four years apart

constitute a pattern and are not merely two criminal offences in a series of offences committed by Mr. Walsh. I find their commonality to be evident on the evidence; both aggravated assaults caused severe, life threatening injuries to the victims. I find them to be similar, both in kind and result. [270] Given my findings on the evidence, including my previous findings on the expert evidence as to future risk of violent reoffending by Mr. Walsh, I also find that this pattern of repetitive behaviour is likely to continue and will lead to conduct by Mr. Walsh that endangers the life, safety, or physical well-being of others in the future. It also demonstrates a likelihood of death or severe injury to other persons by Mr. Walsh's failure to restrain his behaviour in the future. [271] In my view, the conduct at issue here is more appropriately considered within s. 753(1)(a)(i) than within the meaning of s. 753(1)(a)(ii). The two instances of aggravated assault on their facts are more aptly characterized as a pattern of repetitive behaviour than as a pattern of persistent aggressive behaviour, and I do not characterize Mr. Walsh as indifferent regarding the reasonably foreseeable consequences of his behaviour. Rather, his assaultive behaviour with a weapon in both instances was intended to cause at least severe physical injury. [272] For these reasons, I find that the Crown has

proven beyond a reasonable doubt that Mr. Walsh meets the criteria for a dangerous offender pursuant to s. 753(1)(a)(i) of the Criminal Code. He is therefore found to be a dangerous offender. What sentence is to be imposed given that Mr. Walsh is found to be a Dangerous Offender? [273] A finding that Mr. Walsh is a dangerous offender may result in the imposition of an indeterminate sentence. Section 753(4) of the Criminal Code sets out the available sentences following a finding that an offender is a dangerous offender. However, these sentencing options have been further circumscribed by the new provision contained in s. 753(4.1). These provisions state: (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.] [274] The effect of the new provision is to replace the regime set out in R. v. Johnson, [2003] 2 S.C.R.

357. In Johnson, the Supreme Court of Canada directed that the long-term offender provisions are to apply in circumstances where less restrictive means will be sufficient to reduce the risk of violent reoffending, despite the fact the offender meets the criteria of a dangerous offender. [275] In Johnson, the Court stated at para. 29: ... The principles of sentencing thus dictate that a judge ought to impose an indeterminate sentence only in those instances in which there does not exist less restrictive means by which to protect the public adequately from the threat of harm, i.e., where a definite sentence or long-term offender designation are insufficient. The essential question to be determined, then, is whether the sentencing sanctions available pursuant to the long-term offender provisions are sufficient to reduce this threat to an acceptable level, despite the fact that the statutory criteria in s. 753(1) have been met. [276] Thus, under Johnson, before imposing an indeterminate sentence on an offender found to be a dangerous offender, a court was obliged to consider whether it was satisfied that a sentence of a minimum term of imprisonment of two years and a long-term supervision order of not more than ten years amounted to "a reasonable possibility of eventual control of the risk in the community." [277] Now an offender found to be a dangerous offender for offences

committed post-July 2, 2008, may only receive a long-term supervision order as part of a disposition under s. 753(4)(b) if the test under s. 753(4.1), as to "reasonable expectation that a lesser measure ... will adequately protect the public" is met. The Meaning to be Attributed to s. 753(4.1) of the Criminal Code [278] There is little guidance in terms of decided cases in relation to application of the new provisions contained in s. 753(4.1). No British Columbia cases have been brought to my attention. [279] In recent cases where the predicate offence or offences occurred before July 2, 2008, and s. 11(i) of the Charter was considered, providing that "if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment," judges have held that the new provisions offer no such benefit: R. v. Sharif, 2011 BCCA 83; R. v. Bruneau, supra; R. v. Dorfer, 2009 BCSC 202; and R. v. Haines, 2009 BCSC 1505. [280] This matter was considered by Sinclair Prowse J. in Bruneau as follows: [8] On July 2, 2008, the provisions of the Criminal Code, R.S.C. 1985, c. C-46 [Code], governing Dangerous Offender and Long Term Offender applications were amended. These amendments occurred after Mr. Bruneau had pled guilty to these offences and after the Crown had applied to have him found a Dangerous Offender. [9] As a

consequence, the Court must first address the preliminary issue of which provisions should govern this application - whether it is the previous provisions or the current provisions. [10] Counsel jointly submit that the previous provisions should govern this application. I agree with that submission. [11] As a general matter, persons accused of criminal conduct are to be charged and sentenced under the criminal law provisions in place at the time that the offence was allegedly committed: R. v. Johnson, [2003] 2 S.C.R. 357, 2003 SCC 46, at para. 41 [Johnson (2003)]. However, if criminal law provisions change between the commission of the offence and the completion of the matter, the Offender is entitled to be sentenced under whichever provision provides the lesser punishment: Charter of Rights and Freedoms, s. 11(i). [12] As was held in R. v. Dorfer, 2009 BCSC 202 at para. 51 (the only case of which I am aware that considers this issue), "taken as a whole, it cannot be said that the new provisions are more favourable to [the Offender]". [13] Upon reading the previous and current provisions, I agree with this characterization. [281] The same conclusion was also reached by Bruce J. in Haines. [282] Section 753(4.1) requires the court to impose an indeterminate sentence on an offender found to be a dangerous offender "unless it is satisfied by the evidence ... that 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." [283] In R. v. Wormell, 2005 BCCA 328, Southin J.A. discussed the meaning of "satisfied" and the burden of proof as it related to the previous regime: [32] The task of the Court from beginning to end is to ask itself, "Am I satisfied that there is a reasonable possibility of eventual control of the risk in the community?" If the judge concludes that he or she is not so satisfied then the judge cannot designate the offender a long-term offender. [33] In my opinion, it is not right to approach this with burden of proof at the back of one's mind. Burden of proof, whether it is proof beyond a reasonable doubt or on a balance of probabilities, directs itself to determining past events. [34] While on a dangerous offender application the Crown must prove beyond a reasonable doubt past conduct of the accused which it says is relevant, there can be no burden of proof in the classic sense in the assessment of the future. [284] In concurring reasons, Ryan J.A. discussed the meaning of "satisfied" as not requiring proof beyond a reasonable doubt: [61] Thus if the Crown proves that the offender meets the statutory criteria of a dangerous offender, then, before making the designation, the sentencing judge must turn to the

criteria in s. 753.1(1)(c) which requires only that the court be satisfied that there is a reasonable possibility of eventual control of the risk in the community. Nowhere in the Johnson decision do the Supreme Court justices state that the Crown must prove beyond a reasonable doubt that there is no reasonable possibility that the offender will eventually be manageable in the community. In my view they do not say that because it would be inconsistent with their reasoning. [285] I find the comments of Southin J.A. and Ryan J.A. apposite to this determination. Therefore, the determination under s. 753(4.1) requires the court to be "satisfied," in the sense discussed above, that there is a reasonable expectation that a lesser measure will adequately protect the public from the risk that Mr. Walsh will commit murder or a serious personal injury offence, but does not place a burden on the Crown of proof of this element beyond a reasonable doubt. [286] The Crown submits that the words "reasonable expectation" are to be ascribed their common meanings. To assist, the Crown provided the oft-quoted family law decision, MacDonald v. MacDonald (1970), 1 R.F.L. 186 (Ont. S.C.), where, in the context of whether there was a reasonable expectation that a party to a marriage would recover from an alcohol addiction, Lacourcière J. held: ...There is ample evidence of previously unsuccessful

attempts at rehabilitation ... The weight of medical opinion, in my analysis, is that rehabilitation was not a reasonable expectation at the time of the hearing. The words here italicized refer to something more than a mere possibility, as mentioned by Dr. Murphy. Reasonable expectation in my interpretation implies a confident belief, for good and sufficient reasons, that rehabilitation will occur. The respondent's hope in this case unfortunately does not correspond to the expectation reasonably to be inferred on the evidence. ... [Italics in original, underlined emphasis added.] [287] This definition of "reasonable expectation" has been applied or considered in the following authorities also provided by the Crown: Chesal v. Nova Scotia (Attorney General), 2003 NSCA 124; Isiah v. Isiah (1982), 47 N.B.R. (2d) 318 (N.B.Q.B.); and Zolis v. Minister of National Revenue, [1987] 1 C.T.C. 2199 (T.C.C.). [288] Further, I have been provided with two cases that consider these words in relation to the phrase "reasonable expectation of harm." [289] In Ontario (Ministry of Transportation) v. Cropley (2005), 202 O.A.C. 379 (C.A.), leave to appeal ref'd (2006) 223 O.A.C 396, Juriansz J.A., for the court, held: 37 These passages make clear that the standard the Commissioner used was that of a "reasonable expectation of harm." As Labrosse J.A. observed in WCB the words "detailed and convincing"

do not describe the standard of proof, but the quality and cogency of the evidence required to establish a reasonable expectation of harm. [290] In Lavigne v. Canada (Commissioner of Official Languages), 2002 SCC 53, Gonthier J., for the Court, in considering the right of access to personal information collected in private in an investigation conducted under the Official Languages Act, stated: 58 The non-disclosure of personal information provided in s. 22(1)(b) is authorized only where disclosure "could reasonably be expected" to be injurious to investigations. As Richard J. said in Canada (Information Commissioner) v. Canada (Immigration and Refugee Board), supra, at para. 43, "[t]he reasonable expectation of probable harm implies a confident belief". There must be a clear and direct connection between the disclosure of specific information and the injury that is alleged... [291] What I draw from the above authorities as to the meaning of the phrase "reasonable expectation that a lesser measure ... will adequately protect the public" in s. 753(4.1) is that it amounts to "a confident belief, for good and sufficient reasons" to be derived from the quality and cogency of the evidence heard on the application. Unless a judge is so satisfied by the evidence "that a lesser measure ... will adequately protect the public against the commission by the offender of murder or serious

personal injury offence" he or she is required by the subsection to impose an indeterminate sentence upon an offender found to be a dangerous offender. [292] The Crown has provided the Court with two cases that apply the new dangerous offender provisions in relation to offences committed post-July 2, 2008. [293] In R. v. Mumford, 2010 ONSC 5624, a decision of the Ontario Superior Court of Justice, Marrocco J. dealt with an offender who had a long and intractable history of violent and brutal sexual assaults in relation to young boys that is factually very different from the present case. The justice considered s. 753(4.1) as follows: 76 According to s. 753(4.1), the risk to which I have to direct my attention is the risk that Mr. Mumford will commit a personal injury offence. In addition, s. 753(4.1) requires me to determine whether I have a reasonable expectation that a determinate sentence, plus a long-term community supervision order, will adequately protect the public from Mr. Mumford. 77 In order to lift the risk that Mr. Mumford will commit a personal injury offence from the general to the specific, and in order to determine what constitutes adequate protection from that risk, requires, in part, a consideration of some of the facts of this matter. It is with these two thoughts in mind that reference is made to some of the specific facts of this matter. ... [294] Marrocco

J. found Mr. Mumford to be a dangerous offender and was not satisfied that either of the lesser measures set out in s. 753(4)(b) or (c) would adequately protect the public against the commission by him of a serious personal injury offence in the future. He also stated that had the case arisen under the pre‑July 2, 2008 legislative regime and he had discretion regarding Mr. Mumford to be a dangerous offender, that discretion would have been exercised by declaring him to be a dangerous offender; likewise, if he had discretion with regard to the imposition of an indeterminate sentence after such a finding, the result for Mr. Mumford would have been the same - the imposition of an indeterminate sentence. [295] In R. v. Warawa, 2010 ABPC 336, a decision of the Alberta Provincial Court, Judge C.M. Skene was obliged to consider the effect of the July 2nd, 2008 amendments in relation to the question of onus. The judge stated the issue as follows: 146 Prior to the July 2008 amendments to the dangerous offender provisions of the Code and the enactment of s. 753(4.1), the general consensus in the case law, and the position of the Crown and Warawa in this hearing, was that the onus rested with the Crown to prove that the LTO sentencing options were insufficient. Warawa argued that the onus continues to be on the Crown to prove beyond a reasonable doubt that there is not a reasonable

expectation that a lesser measure, other than an indeterminate sentence of imprisonment, would adequately protect the public. The Crown took the position that the onus is on the offender to prove that the less severe options under the LTO offender provisions are sufficient. [296] After reference to Bruneau and Wormell and the correct approach to the question of whether there is a reasonable possibility of eventual control in the community of the risk posed by the offender, Judge Skene concluded: 149 The approach suggested by Southin J. [in Wormell] was supported by Ryan J. and followed by the Ontario Court of Appeal in R. v. D. (F.E.), 2007 ONCA 246 (Ont. C.A.), that there was no onus on the Crown, the ultimate decision as to what constitutes the fit and proper sentence should be left to the discretion of the sentencing judge: R. v. Proulx, 2000 SCC 5 (S.C.C.) 150 Warawa was unable to direct the Court to authority that supported his submission. 151 There is a significant change in the legislation since the July 2008 amendments. Section 753(4.1) states the court shall impose an indeterminate sentence unless it is satisfied by the evidence adduced ... that there is a reasonable expectation that a lesser measure will adequately protect the public. The test has changed. The designation of an offender as dangerous used to be discretionary. The old legislation and case law provided

the court with more discretion, a different framework and a requirement to consider the sufficiency of an LTO designation and sentence first. 152 This case does not turn on this issue. As will be seen in the reasons following, regardless of who has the onus or, even if the court approaches this case on the basis suggested by Southin J. and Ryan J. in Wormell, on all the evidence adduced, I am not satisfied and cannot conclude that there is a reasonable expectation that a determinate sentence followed by a 10-year-LTO would adequately protect the public. [297] I agree that the test has changed. Section 753(4.1) contains imperative language concerning the imposition of an indeterminate sentence and the protection of the public. I find that, under the new regime, once an offender is found to be a dangerous offender the court is required to impose an indeterminate sentence unless it is satisfied by the evidence that there is a reasonable expectation, the elements of which were discussed above, that a lesser measure will adequately protect the public. It is no longer correct for the court to first consider whether there is a reasonable possibility of eventual control of the risk posed by the dangerous offender in the community that would give rise to a long-term supervision order. [298] Having found Mr. Walsh to be a dangerous offender under s. 753(1)(a)(i), I am obliged to consider

s. 753(4.1) in the manner I have set out above. The Application of s. 753(4.1) to Mr. Walsh [299] Mr. Walsh is a young man who has had access to programs to identify and directly address the underlying causes of his violent tendencies both while in custody and in the community. At times he has shown some insight into the causes of his violent behaviour and the risk factors that need to be managed. [300] While serving his first federal sentence he took an intensive violence prevention program, the VPP+. He was reported as having done well in the course, but that his risk to re-offend violently was considered to remain high. He was given opportunities to manage the identified risk factors related to his violent offending in the community. He performed poorly. [301] In 2008, between March and August, his statutory release was suspended on two occasions for associating with criminal peers, a clearly identified risk factor for him. [302] His sentence for his first aggravated assault conviction was complete on November 3, 2008. That offence had catastrophic consequences for the victim and his family. Mr. Walsh's conduct in that regard, its consequences, and his opportunity to reflect on it while serving a federal sentence and taking intensive treatment, all had no meaningful effect on Mr. Walsh. [303] On November 21, 2008, he committed a further aggravated assault with a knife that

but for medical intervention could have resulted in the death of the victim. Programming designed to reduce the risk of these sorts of incidents undertaken prior to and during his preceding three years in custody had clearly failed to accomplish its necessary objective. [304] The predicate offences represent an escalation of Mr. Walsh's level of violence and a stark demonstration of his utter lack of control. According to Dr. Bartel and Dr. Lamba, Mr. Walsh continues to pose a high risk to re-offend violently in the community. While there is some difference in opinion among the experts as to Mr. Walsh's risk management and likelihood of violent recidivism, all are in agreement that if his risk factors cannot be managed his risk of violent recidivism is significant. [305] At this time, it is apparent on the evidence that Mr. Walsh and the risk factors accepted to trigger his violent offending cannot be managed in the community. It is not clear if and when that may change. Mr. Walsh is acutely aware of the causes of his violence. He has chosen to ignore them at every recent opportunity, instead embracing a criminal lifestyle. An inevitable consequence of his criminal lifestyle is that he engages in violence because he perceives a need to respond to any ostensible indication that he, or someone else he is associated with, is at risk with a sudden and disproportionate extreme level

of violence. These choices cause him to represent a risk to the public at present and in the foreseeable future. [306] I note that the Gagne family, while well intentioned, were part of his life in October and November 2008, when he committed the predicate offences. They offer nothing new or different to motivate Mr. Walsh to behave in the community in the manner that reduces his risk of violently offending, except the possibility of relocating to Ontario. Despite their evidence to the contrary, it is readily apparent that they are not cognizant of what would be necessary, if at all possible, to manage Mr. Walsh's risk in the community at this time. They are simply not equipped to deal with Mr. Walsh, and they have chosen to ignore or minimize the circumstances of the past aggravated assault and the predicate offences as well as the substantive findings of corroborated assessments of his high risk of violence. [307] Section 753(4.1) requires the imposition of an indeterminate sentence unless the court is satisfied that there is a reasonable expectation that a lesser measure will adequately protect the public against the commission by Mr. Walsh of murder or a serious personal injury offence. Any such reasonable expectation must amount to a confident belief for good and sufficient reasons based on the quality and cogency of the evidence. For the reasons I have articulated on the

evidence before the Court in this application, I find that I do not have such a belief. To impose any sentence other than an indeterminate sentence of imprisonment is to place members of the public at very real risk of serious bodily harm or murder at the hand of Mr. Walsh. In this instance, it is not appropriate for the Court to gamble with public safety in the hope that at some future time Mr. Walsh will be both sincerely motivated to manage his propensity to violent behaviour and be able to do so. In my respectful view, it is for the National Parole Board to continue to monitor the risk he poses and to determine when and if he is to be released in the future. Conclusion [308] Therefore, I find that Mr. Walsh is proven beyond a reasonable doubt to be a dangerous offender pursuant to s. 753(1)(a)(i). Pursuant to s. 753(4.1), I impose an indeterminate sentence because I am not satisfied that there is a reasonable expectation that a lesser measure will adequately protect the public from Mr. Walsh and the commission of serious violent offences in the future. [309] I also, pursuant to s. 487.051, based on convictions pursuant to sections 267 and 268, make a DNA order as they are primary designated offences. I impose a weapons prohibition pursuant to s. 109(1)(a). Pursuant to s. 760 of the Criminal Code, I order a copy of all reports and testimony given by the psychiatrists and

psychologists, Dr. Bartel, Dr. Lamba, and Dr. Nicholaichuk, and the Court's reasons, together with a transcript of the trial of the offender, to be forwarded to the Correctional Service of Canada. [310] These were lengthy oral reasons. At the time they were read I reserved the right to edit them, and to insert case citations. With counsel's consent I have also inserted paragraphs of prior reasons in this case, paragraphs of cited judgments, and the identified portions of certain documents and reports that I referred in court without reading them in full. "The Honourable Madam Justice E.A. Arnold-Bailey"