R. v. Cook (D.A.),

• Jurisdiction: Manitoba
• Judge: Duval, J.
• Neutral Citation: 2010 MBQB 237
• Date: 26 October 2010
• Court: Court of Queen's Bench of Manitoba (Canada)

R. v. Cook (D.A.) (2010), 259 Man.R.(2d) 109 (QB)

MLB headnote and full text

Temp. Cite: [2010] Man.R.(2d) TBEd. NO.017

Her Majesty The Queen v. Darryl Adair Cook (accused)

(CR 08-01-29017; 2010 MBQB 237)

Indexed As: R. v. Cook (D.A.)

Manitoba Court of Queen's Bench

Winnipeg Centre

Duval, J.

October 26, 2010.

Summary:

Cook was convicted of the indictable offences of assault causing bodily harm in respect of his 62-year-old uncle (liable to imprisonment for a term not exceeding 10 years) and breach of a condition of a recognizance whereby he was ordered not to consume alcohol. The incident occurred in 2005. The Crown applied for a finding that Cook was a dangerous offender pursuant to s. 753 of the Criminal Code, or for the imposition of a sentence in respect of the predicate offence, or for a determination that Cook was a long-term offender.

The Manitoba Court of Queen's Bench found that Cook was a dangerous offender and accordingly imposed a sentence of detention in a penitentiary for an indeterminate period.

Criminal Law - Topic 5842

Sentencing - Considerations on imposing sentence - Previous criminal offences (incl. not criminally responsible, repeat, dangerous or long-term offenders) - [See Criminal Law - Topic 6560 ].

Criminal Law - Topic 6513

Dangerous or long-term offenders - Detention (incl. common law preventive detention) - General - Psychiatric evidence - The Crown applied for a finding that the accused (Cook) was a dangerous offender - The Manitoba Court of Queen's Bench stated that "[w]here a psychiatrist relies in part on factual inferences drawn from police reports which he has read related to other offences allegedly committed by Mr. Cook, the court cannot rely on the psychiatrist's evaluation to the extent that it is based on those facts, unless they are independently proved to the court. Any opinions based on inferences drawn by the psychiatrist from the reading of these police reports cannot be relied upon by the court. However, the court may rely on a psychiatrist's opinion where it is based on information received from an offender, including information provided in answer to police report data and inferences drawn from an offender's failure to recall circumstances surrounding offences of which the offender was convicted" - See paragraph 100.

Criminal Law - Topic 6552

Dangerous or long-term offenders - Detention (incl. common law preventive detention) - Protection of the public - Pattern of repetitive behaviour - [See Criminal Law - Topic 6560 ].

Criminal Law - Topic 6560

Dangerous or long-term offenders - Detention (incl. common law preventive detention) - Protection of the public - Personal injury offences - Cook was convicted of the indictable offence of assault causing bodily harm in respect of his 62-year-old uncle - The Manitoba Court of Queen's Bench found Cook to be a dangerous offender - The offence was a serious personal injury offence, and Cook's behaviour met the requirements of ss. 753(1)(a)(i) and (ii) of the Criminal Code - His extensive criminal record included numerous offences of violence, including manslaughter - The fact that Cook indicated to correctional authorities that he did not think that the victim would die when he struck him in the head with a bat, suggested a substantial degree of indifference - The evidence established a pattern of repetitive behaviour of abusing alcohol and thereafter assaulting strangers, members of his family, and handicapped persons - Cook failed, even while incarcerated, to restrain his aggressive and assaultive behaviour - Further, there was a substantial risk that he would reoffend, given his record of re-involvement in violent crimes within a short period of time after release, and his failure to complete addictions programming - Cook's treatment within a definite period of time was unlikely - A long-term offender designation was not appropriate - While Cook expressed "a grudging willingness" to comply with any conditions imposed, he also stated that he would resent supervision - See paragraphs 191 to 196.

Criminal Law - Topic 6562

Dangerous or long-term offenders - Detention (incl. common law preventative detention) - Protection of the public - Persistent aggressive behaviour - [See Criminal Law - Topic 6560 ].

Criminal Law - Topic 6563

Dangerous or long-term offenders - Detention (incl. common law preventive detention) - Protection of the public - Indifference respecting consequences of behaviour to others - [See Criminal Law - Topic 6560 ].

Cases Noticed:

R. v. Neve (L.C.) (1999), 237 A.R. 201; 197 W.A.C. 201; 137 C.C.C.(3d) 97; 1999 ABCA 206, consd. [para. 14].

Pitters v. Criminal Injuries Compensation Board (Ont.) (1996), 95 O.A.C. 325 (Div. Ct.), refd to. [para. 16].

R. v. Goforth (E.R.) (2005), 257 Sask.R. 123; 342 W.A.C. 123; 193 C.C.C.(3d) 354; 2005 SKCA 12, folld. [para. 18].

R. v. Currie (R.O.R.), [1997] 2 S.C.R. 260; 211 N.R. 321; 100 O.A.C. 161, refd to. [para. 21].

R. v. Roberts (R.) (2007), 220 O.A.C. 46; 219 C.C.C.(3d) 32; 2007 ONCA 64, folld. [para. 24].

R. v. M.B.H. - see R. v. Hall (M.B.).

R. v. Hall (M.B.) (2004), 185 O.A.C. 319; 186 C.C.C.(3d) 62 (C.A.), refd to. [para. 24].

R. v. Johnson (J.J.), [2003] 2 S.C.R. 357; 308 N.R. 333; 186 B.C.A.C. 161; 306 W.A.C. 161; 2003 SCC 46, consd. [para. 30].

R. v. Pedden (B.A.) (2005), 208 B.C.A.C. 303; 344 W.A.C. 303; 194 C.C.C.(3d) 476; 2005 BCCA 121, consd. [para. 31].

R. v. Langevin (1984), 3 O.A.C. 110; 11 C.C.C.(3d) 336 (C.A.), consd. [para. 32].

R. v. Lewis (1984), 4 O.A.C. 98; 12 C.C.C.(3d) 353 (C.A.), consd. [para. 33].

R. v. H.P.W. (2001), 286 A.R. 350; 253 W.A.C. 350; 159 C.C.C.(3d) 91; 2001 ABCA 224, refd to. [para. 38].

R. v. McCallum (N.J.) (2005), 196 O.A.C. 101; 201 C.C.C.(3d) 541 (C.A.), consd. [para. 39].

R. v. Higginbottom (C.) (2001), 150 O.A.C. 79; 156 C.C.C.(3d) 178 (C.A.), refd to. [para. 39].

R. v. Casemore (D.R.) (2009), 336 Sask.R. 110; 2009 SKQB 306, refd to. [para. 42].

R. v. D.W.A.P. - see R. v. Peters (D.W.A.).

R. v. Peters (D.W.A.), [2006] B.C.T.C. Uned. 672; 2006 BCSC 1288, refd to. [para. 42].

R. v. George (T.) (1998), 109 B.C.A.C. 32; 177 W.A.C. 32; 126 C.C.C.(3d) 384 (C.A.), consd. [para. 44].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 718.2 [para. 34]; sect. 752 [para. 13]; sect. 753(1) [para. 12]; sect. 753.1(1) [para. 35]; sect. 753.1(2) [para. 36]; sect. 753.1(3) [para. 37].

Counsel:

David A. Mann and Cindy L. Sholdice, for the Crown;

Jody L. Ostapiw, for the accused.

This application was heard before Duval, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on October 26, 2010.