QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2010 SKQB 33 Date: 2010 01 29 Docket: Q.B.J. No. of 2007 Judicial Centre: Battleford BETWEEN: HER MAJESTY THE QUEEN Counsel: K. R. Humphries for the Crown L. K. Johnstone-Clarke for the offender JUDGMENT ROTHERY J. January 29, 2010 I. INTRODUCTION [1] J.R.S. (“J.R.S.”) was convicted on September 17, 2008, of the following offences:1. That on or about the 17th day of December, 2004 at T[…] First Nation, in the Province of Saskatchewan he did commit an assault on L.L.A. contrary to section 266 of the Criminal Code. 2. That on or about the 20th day of February, 2005 at T[…] First Nation in the Province of Saskatchewan did break and enter a dwelling house to wit: House #[...] at T[…] First Nation and did commit therein the indictable offence of assault, contrary to section 348(1)(b) of the Criminal Code. 3. That on or about the 20th day of February, 2005 at T[…] First Nation in the Province of Saskatchewan did in committing an assault on L.L.A. cause bodily harm to her contrary to section 267(b) of the Criminal Code. [2] J.R.S. re-elected trial by Queen’s Bench Judge alone on June 23, 2008, and upon arraignment, plead guilty to the following related offences stemming from his breaches of no-contact conditions with L.L.A. and from his obstructing justice by dissuading L.L.A. from testifying against him: 1. That on or about the 20th day of February, 2005 at T[…] First Nation, in the Province of Saskatchewan did being at large on his undertaking given to an officer in charge and being bound to comply with condition of that undertaking directed by the said officer in charge fail without lawful excuse to comply with the condition to wit: abstain from communicating with L.L.A. contrary to section 145(5.1) of the Criminal Code. 2. That between the 1st day of March 2005 and the 7th day of June 2005 at Prince Albert, in the Province of Saskatchewan did while being bound by an Order made by his Honour, Provincial Court Judge K. Y. Young pursuant to section 515(12) of the Criminal Code on March 1, 2005 and being bound to comply with condition of the order, fail without lawful excuse to comply with that condition to wit: that J.S. abstain from communicating directly or indirectly with L.L.A. contrary to section 127(1) of the Criminal Code. 3. That between the 1st day of March A.D. 2005 and the 7th day of June 2005 at Prince Albert, in the Province of Saskatchewan did wilfully attempt to obstruct, or pervert the course of justice in judicial proceeding by dissuading or attempting to dissuade L.L.A. from giving evidence contrary to section 139(2) of the Criminal Code. 4. That between the 9th day of June A.D. 2005 and the 30th day of September 2005 at P[…] First Nation, in the Province of Saskatchewan did while being bound by an order made by his Honour K. Y. Young pursuant to section 515(12) of the Criminal Code on March 1, 2005 and being bound to comply with condition of the order, fail without lawful excuse to comply with that condition to wit: that J.S. abstain from communicating directly or indirectly with L.L.A., contrary to section 127(1) of the Criminal Code. 5. That between the 9th day of June 2005 and the 30th day of September 2005 at P[…] First Nation, in the Province of Saskatchewan did wilfully attempt to obstruct or pervert the course of justice in judicial proceeding by dissuading or attempting to dissuade L.L.A. from giving evidence contrary to section 139(2) of the Criminal Code. [3] Although J.R.S. was charged with possession of cannabis marihuana for the purposes of trafficking, he also plead guilty to the included offence of possession of cannabis marihuana, being count in the direct indictment dated January 4, 2007. [4] J.R.S. and L.L.A. (“L.L.A.”) had been in a common law relationship since she was fifteen years old. L.L.A. moved in with J.R.S. and his parents, J.S.[1] and B.S., and lived at house [...] on the T[…] First Nation. They had four children of the relationship, who were ages 15, 12, 10 and at the time of this trial in September, 2008. At trial, L.L.A. was age 31 and J.R.S. was age 36. L.L.A. was raised by G.T. at house [...]. L.L.A. has returned to her home reserve of P[…] First Nation at the end of 2006. [5] The offences took place in late 2004 and early 2005. The R.C.M.P. had to execute Feeney warrant to locate L.L.A. in the J.R.S.’s basement on February 26, 2008. J.R.S.’s actions after being arrested have led to the length of time to bring the three charges to trial in early September, 2008. The history of this matter has already been chronicled in my decision on J.R.S.’s application for judicial stay, cited at 2008 SKQB 288 (CanLII). [6] Because the offence of assault causing bodily harm is a serious personal injury offence as defined in Part XXIV of the Criminal Code, the Crown applied for an order that J.R.S. be declared a dangerous offender. The Attorney General has consented to the Crown’s application. The order was made for Dr. Roger Holden to conduct an assessment of J.R.S. and to file report with the court in accordance with s. 752.1 of the Criminal Code. That report was filed with the court in January, 2009. The dangerous offender hearing was delayed from March, 2009 until October, 2009, to allow defence to obtain an expert opinion and to prepare for the application. II. THE LEGAL FRAMEWORK [7] On the Crown’s application to have an offender designated dangerous offender under s. 753(1)(a)(i) and/or (ii) of the Criminal Code, as is the case here, it must prove beyond reasonable doubt that J.R.S. has been convicted of serious personal injury offence as defined and that J.R.S. constitutes threat to the life, safety or physical or mental well-being of other persons. The Crown must prove beyond reasonable doubt that J.R.S. exhibits pattern of repetitive behaviours showing failure to restrain his behaviour, and likelihood of causing death or injury to others. The Crown must prove that J.R.S. exhibits pattern of persistent aggressive behaviour showing substantial degree of indifference respecting the reasonably foreseeable consequences to others of his behaviour. In this case, the Crown submits it has proven both patterns of behaviour, although, by law it is only required to prove either the behaviour described in s. 753(1)(a)(i) or (ii) of the Criminal Code. [8] If the Crown has successfully proved the conditions outlined in s. 753(1)(a)(i) or (ii), the court is required to exercise its discretion to determine if the less restrictive sanction under the provisions of s. 753.1 of the Criminal Code may be imposed in the circumstances of this case. That is, the court must determine whether long-term offender designation could be imposed on J.R.S.. [9] The exercise of this discretion is founded on the principles outlined in R. v. Johnson, 2003 SCC 46 (CanLII), [2003] S.C.R. 357. At para. 26 29, the Supreme Court of Canada explained: However, this Court confirmed in L.(T.P.), supra, that the phrase "the court may find the offender to be dangerous offender" denotes discretion. In support of the Court's conclusion that the dangerous offender regime did not violate the prohibition on cruel and unusual punishment, La Forest J. stated, at p. 338, that "the court has the discretion not to designate the offender as dangerous or to impose an indeterminate sentence, even in circumstances where all of these criteria are met" (emphasis added). He reiterated the point at p. 361-62, stating that sentencing judge "does retain discretion whether or not to impose the designation or indeterminate sentence, or both" (emphasis added). Insofar as Moore and its progeny suggest that sentencing judges must declare an offender dangerous if the statutory criteria have been satisfied, they have been overruled by L. (T.P.). Having determined that the phrase "[t]he court may ... find the offender to be dangerous offender" denotes discretion, the next issue that falls to be considered is the legal principles and factors that sentencing judge must consider in the exercise of that discretion. For the reasons that follow, it is our conclusion that one factor that sentencing judge must consider is the possibility that the sanctions available pursuant to the long-term offender provisions would be sufficient to achieve the objectives that the dangerous offender provisions seek to advance. (2) The Exercise of Discretion Like all discretion exercised in the sentencing context, judge's discretion whether to declare an offender dangerous must be guided by the relevant principles of sentencing contained in ss. 718 to 718.2 of the Criminal Code. As mentioned above, these include the fundamental principle of proportionality contained in s. 718.1 and, most relevant to the central issue in the present appeal, the principle of restraint enunciated in paras. (d) and (e) of s. 718.2, which provide as follows: 718.2 court that imposes sentence shall also take into consideration the following principles: ... (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. The joint effect of these principles is that sentencing judge must consider the possibility that less restrictive sanction would attain the same sentencing objectives that more restrictive sanction seeks to attain. In this case, the sentencing objective in question is public protection: see for example L.(T.P), supra, at p. 329, and Hatchwell v. The Queen, 1974 CanLII 203 (SCC), [1976] S.C.R. 39, in which Dickson J. (as he then was) wrote, at p. 43, that the dominant purpose of preventive detention is "to protect the public when the past conduct of the criminal demonstrates propensity for crimes of violence against the person, and there is real and present danger to life or limb". Absent such danger, there is no basis on which to sentence an offender otherwise than in accordance with the ordinary principles of sentencing. The principles of sentencing thus dictate that 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 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. [10] The exercise of discretion to address the option of long-term offender designation requires the court to consider the following, as stated in s. 753.1(1) of the Criminal Code: 753.1 (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be long-term offender if it is satisfied that (a) it would be appropriate to impose sentence of imprisonment of two years or more for the offence for which the offender has been convicted; (b) there is substantial risk that the offender will reoffend; and (c) there is reasonable possibility of eventual control of the risk in the community. [11] The Saskatchewan Court of Appeal has addressed the requisite factual underpinnings to assist the sentencing judge in exercising this discretion. In R. v. Lemaigre (2004), 2004 SKCA 125 (CanLII), 254 Sask. R. 255 (C.A), Cameron J.A. outlined at para. 50 52 the assessment that must be explored to assist the sentencing judge in determining whether the sentencing sanctions under s. 753.1 are sufficient to reduce the threat of public harm to an acceptable level: want to emphasize that what was called for was this: an assessment of the prospects of eventually reducing the risk to an acceptable level-not altogether eliminating it, but thus reducing it-should Mr. Lemaigre be sentenced to several years in prison, be exposed to the treatment programs offered in prison, and then be released into the community under supervision and on set of conditions aimed at reducing the risk to an acceptable level. In the circumstances of the case, it is this which was not adequately explored. [emphasis included] The circumstances of the case presented borderline situation. That being so, specific consideration should have been given to the rehabilitation programs offered in the Prince Albert penitentiary, especially those aimed at assisting offenders overcome problems such as those experienced by Mr. Lemaigre. What programs are available? How are they structured and administered, and how effective are they? Are there programs geared specifically to aboriginal offenders and, if so, what are they and how do they rate? How might the available programs benefit this man, should he be incarcerated for four or five or six years? In short, what were the prospects of eventually reducing the risk to an acceptable level by means, among others, of lengthy period of incarceration with its attendant deterrent and rehabilitative effects, especially on 52 year-old offender such as Mr. Lemaigre. Likewise, specific consideration should have been given to the rehabilitation programs or services offered in La Loche and area. Does the Meadow Lake Tribal Council have an Aboriginal Justice Committee and, if so, how active and effective is it? Such Committees often wield significant influence in controlling anti-social behaviours within their reach. The Meadow Lake Tribal Council apparently offers some programs, including Dene psychotherapy program. What are they, how do they function, and how do they rate? In addition, there appears to be an alcohol treatment facility in La Loche, one established relatively recently and apparently offering treatment in the Chipewyan language, Mr. Lemaigre's first language. How has this initiative been received in the community, and what, specifically, does this facility offer? In sum, what are the prospects of eventually controlling the risk and reducing it to an acceptable level in the community by means such as these? [12] In exercising the discretion under s. 753.1 of the Criminal Code to determine whether J.R.S. ought to be found long-term offender, the court must be satisfied that all three conditions of s. 753.1 can be met, as stated in ss. (a), (b), and (c). To that end, the Crown is not required to negate the “reasonable possibility of eventual control of the risk in the community” to burden of proof beyond reasonable doubt. As explained in R. v. Moosomin, 2008 SKCA 169 (CanLII), at para. 40: This Court adopts the reasoning of the other appellate courts in Canada. There can be no burden of proof on the Crown to negate the third criterion contained in s. 753.1 in the way in which the burden of proof is usually conceived. Section 753.1 places an obligation upon the sentencing judge to be satisfied on the basis of all the evidence that "there is reasonable possibility of eventual control" of the offender's risk "in the community." This is not question of satisfaction based on proof beyond reasonable doubt or any other standard of proof. Practical considerations will play role in motivating both the Crown and the defence in these kinds of proceedings. It will be advantageous to the Crown, as well as the defence, to provide whatever evidence will assist the court in determining whether the offender's risk in the community can be managed to an acceptable level. [13] Finally, if the Crown has failed to prove that J.R.S. is dangerous offender, and has failed to prove that J.R.S. even qualifies as long-term offender, the Court is required to impose sentence on J.R.S. for the convictions. [14] J.R.S.’s counsel submits that the court is required to address all options other than incarceration for J.R.S.. Counsel refers to s. 718.2(e) of the Criminal Code which states that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.” The case of R. v. Gladue 1999 CanLII 679 (SCC), [1999], S.C.R. 688 at para. 93 summarized this sentencing principle as it addresses aboriginal offenders, and the principles articulated therein are often referred to as the “Gladue factors”. [15] J.R.S.’s counsel refers to R. v. Kakekagamick, (2006) 2006 CanLII 28549 (ON CA), 211 C.C.C. (3d) 289 (Ont. C.A.) as support for her submissions that, because J.R.S. is an aboriginal offender, the Gladue factors must be considered in determining his sentence. However, that case deals with the sentencing principles for conviction of aggravated assault, not an application under Part XXIV for dangerous offender designation. That case is of no assistance in addressing the Gladue factors to be considered in dangerous offender application. [16] Dawson J. addressed the Gladue factors in R. v. Stonechild, 2008 SKQB 98 (CanLII) and stated the following at para. 84: An application for finding of dangerous or long-term offender is part of the sentencing process and the principles enacted in s. 718.2 of the Criminal Code apply. As stated in the cases previously referred to, among these objectives, sentencing courts also consider the possibility that less restrictive sanction would attain the same sentencing objectives as more restrictive one notably, because an offender is aboriginal. On this specific characteristic of Mr. Stonechild, it is important to remember that the Supreme Court has decided generally, that the more serious and violent the crime, the more likely it will be, as practical matter, that the terms of imprisonment will be the same for similar offences and offenders, whether the offender is aboriginal or non-aboriginal. But, the cases clearly require the application of the Gladue principles to the dangerous offender applications. An offender has an opportunity to give evidence of systemic or background factors that will call for the special consideration under Gladue. [17] Dawson J. also stated at para. 17: In summary then, s. 718.2(e) applies to the process of designating an offender to be dangerous or long-term offender. However, because of the serious nature of the offences which bring about dangerous offender application, incarceration will generally be the result for both aboriginal and non-aboriginal offenders alike. An offender's aboriginal heritage may become important when considering the prospects of eventually controlling the risk and reducing it to an acceptable level in the community. There may be specific treatment available in the penitentiary and community which would be appropriate based on the offender's aboriginal heritage or connection. However, the test set out in Johnson, supra, is the governing test and s. 718.2(e) only applies to the extent that it coincides with the principles set out in that case. (Also see: R. v. Nome, 2009 SKQB 149 (CanLII) at para. 14). [18] In other words, Johnson, supra, has clarified that, while the Gladue factors as stated in s. 718.2(e) of the Criminal Code must be considered by the sentencing judge, they must be considered in the context of exercising the court’s discretion in considering long-term offender designation in the situation where the Crown has proved that the criteria for dangerous offender are present. If long-term offender status is considered, the Gladue factors are relevant in framing the appropriate sentence. Lemaigre, supra, outlines the considerations that must be addressed to assist the sentencing judge in framing an order that canvasses all available sanctions other than imprisonment, including rehabilitation services within the offender’s own community. [19] It follows that if J.R.S. is found to be neither dangerous offender nor long-term offender, Part XXIV of the Criminal Code does not apply. The sentencing principles articulated in Part XXIII govern the sentences to be imposed for J.R.S.’s convictions, including those set out in s. 718.2(e). III THE PREDICATE OFFENCE [20] J.R.S. was convicted of assault causing bodily harm to L.L.A., contrary to s. 267(b) of the Criminal Code. He broke into house #[…] on the T[…] First Nation on February 20, 2005, where L.L.A. had been staying, and assaulted her. In my oral decision of September 17, 2008, made these findings of fact: At some point while L.L.A. was sleeping on the couch, she was awakened by the accused. Both J.S.[1] and A. were in the house. The accused pulled her up from the couch. He punched her down the hallway. He pushed her head into the wall. He pulled her hair. J.S.[1] and A. tried to intervene, and finally they convinced the accused to stop punching her with his closed fists. L.L.A. wanted to get L.’s attention as he was in the bedroom, but L. did not make an appearance. L.L.A. testified that the accused, J.S.[1] and A. left G.T.’s house, and she fell back to sleep on the couch. Then, the accused returned and dragged her outside down the wooden steps, and along the side of G.T.’s house. He pulled her hair, kicked her on the chest, head and face with his hard boots. She protected her face as best she could. The accused choked her until she lost consciousness. She believed she would have been assaulted outside in the February night for about twenty minutes. She has no memory of what happened after that or how she got to house […]. She awakened next morning in the accused’s basement bedroom in house […]. She no longer had on her sweatshirt and jeans, but pair of shorts and t-shirt. She was in pain and could not move her head. The accused said “I’m sorry” and was very helpful for the first two days after that, including carrying her upstairs to the main floor to use the bathroom. For the first or days, it hurt to eat and drink, as her throat burned. She noticed clumps of blood on her head. [21] “serious personal injury offence” referred to in s. 753 of the Criminal Code is described in s. 752 to mean: (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, ... [22] As stated in R. v. Goforth (2005), 2005 SKCA 12 (CanLII), 193 C.C.C. (3d) 354 (Sask. C.A.) (Leave to appeal to the Supreme Court of Canada refused December 22, 2005, court file no. 31161), at para. ... we are of the opinion paragraph 752(a) does not-necessarily or otherwise-invite qualitative assessment of the degree of violence or endangerment in the predicate offence. In our respectful opinion the defining character and selected phraseology of paragraph 752(a) suggest otherwise, as does consideration of the object of the term "serious personal injury offence." [23] Thus, while qualitative assessment of the degree of violence extracted by J.R.S. on L.L.A. is not required, the facts of this offence leave no doubt that the Crown has proved that the indictable offence under s. 267(b) involved the use of violence against L.L.A.. Furthermore, this offence attracts sentence of ten years. IV. THE CROWN’S PROOF OF J.R.S.’S PATTERN OF BEHAVIOUR [24] The Crown submits that it has proved beyond reasonable doubt that J.R.S. constitutes threat to the life, safety or physical or mental well-being of other persons. It submits that it has established pattern of behaviour described in both s. 753(a) (i) and (ii) of the Criminal Code. Section 753(1)(a) states: (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 dangerous offender if it is satisfied (a) that the offence for which the offender has been convicted is serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing (i) pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms part, showing failure to restrain his or her behaviour and 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) pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms part, showing substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, [25] The Crown is only required to prove the pattern of behaviour as defined by s. 753(a)(i) or (ii), it does not have to prove both. The pattern does not depend upon the number of offences but on the repetitive nature of the offender’s behaviour. (See: R. v. Lewis (1984), 1984 CanLII 2027 (ON CA), 12 C.C.C. (3d) 353 (Ont. C.A.)) [26] As stated by the Alberta Court of Appeal in R. v. N.(L.), 1999 ABCA 206 (CanLII), [1999] 11 W.W.R. 649 at para. 111, the repetitive behaviour can be established on two different bases: Third, repetitive behaviour under s. 753(a)(i) and persistent aggressive behaviour under s. 753(a)(ii) can be established on two different bases. [Persistent in this context has been equated with repetitive: Yanoshewski, supra.] The first is where there are similarities in terms of the kind of offences; the second where the offences themselves are not similar in kind, but in result, in terms of the degree of violence or aggression inflicted on the victims. Either will do. Thus, the mere fact that an offender commits variety of crimes does not mean that no pattern exists. There is no requirement that the past criminal actions all be of the same or similar form, order or arrangement; though if this has occurred, it may well suffice. [27] review of J.R.S.’s criminal history is necessary to determine whether such pattern exists as defined in s. 753(a)(i) and/or (ii) of the Criminal Code. A. J.R.S.’s Offending History [28] Defence admits J.R.S.’s criminal record, entered as Exhibit P-4 in this hearing. Defence lists total of fifty-nine convictions, and sets out the following chart in her brief to classify them: Property offences Driving offences Breach offences (Youth) Breach offences 23 (Adult) Threat offences Firearm offences Common Assault Sexual Assault (Youth) Assault with weapon Assault causing bodily harm [29] This list does not include the matters presently before the court, totalling an additional nine convictions. They include the assault, the assault causing bodily harm, break and enter, unlawful possession of cannabis marihuana, and the breaches and obstruction charges referred to herein. [30] Crown outlined J.R.S.’s criminal history in her brief, summarizing the evidence set out in Tabs 29 found in Exhibit P-6 and Exhibit P-6(a) in this hearing. The history covers time frame from 1986 when J.R.S. was youth up to 2006 when he was convicted of assaulting fellow inmate. The offences correlating to the 29 tabs in Exhibits P-6 and P-6(a) as summarized by the Crown (and referring to J.R.S. as the “defendant”) are as follows: Tab 1986-06-05 Sexual Assault Eighteen months probation Wetaskiwin s.246(1) (not on record) The defendant, 13, was sentenced June 15, 1986 to 18 months probation for sexually assaulting his younger cousin. No other file information exists except references in Pre-Sentence Reports (“PSR”). PSR dated June 5, 1986 noted that the defendant admitted to the offence and stated that he got the idea from watching videos. He later denied the offence to the preparer of the PSR. The PSR outlines J.R.S.’ academic and social history noting that he was kicked out of school the prior October for punching teacher. The PSR assessment of J.R.S. indicates that: ...he is aware that he is very much babied by his parents and uses this to his advantage to get what he wants. Consequently, J.R.S. has successfully learned to become ambivalent to most authority imposed upon him and feels he has the independence to do as he likes. J.R.S. appears to be very aggressive youth who strikes out if someone or something opposes him. He is fairly impulsive and has difficulty in delaying gratification, being oriented almost exclusively to the present, and if he wants to do something, he usually does it regardless of the consequences. Tab 1987-01-20 Breach of Probation day open custody St. Walbourg s. 26 Y.O.A. (not on record) Tab 1987-06–02 Break and Enter x3 months open custody on each conc St. Walbourg s.306(1)(b) (not on record) Theft under x2 s. 294(b) Take motor vehicle s. 295 Wilful Damage s. 387(4) During his probationary period, the defendant broke into the T[..] School, Turtleford Medical Clinic, and Turtleford Hospital and the Co-op on separate occasions. He also broke the window to motor vehicle and in another separate incident stole car. PSR dated June 2, 1987 and prepared for sentencing noted that J.R.S. needs counselling for his volatile temper, pre-occupation with starting fires and inappropriate sexual behavior. The report further went on to state that the defendant failed to complete the prior probationary term to take sex offender treatment because he and his mother denied his guilt. The report recommended that the defendant needed psychological counselling and term in custody would be the only way to ensure that he gets the help that he needs. Tab 1988-06-23 Breach of recognizance 20 months open custody (not on record) Theft under x4 s.294(b) months open custody Fail to Appear s. 133(2)(b) 18 months probation (Youth Court) The defendant committed four separate acts of theft. The first incident the defendant stole an estimated $23.00 from the referee’s room at the Turtleford Arena. He apologized and returned $15.00. The second incident the defendant and others stole gas and tire rim from farm yard. Third incident, the defendant stole tool box from the back of parked car. Fourth incident, the defendant stole cassette tape from department store. PSR dated June 23, 1988 noted that the defendant had little remorse for his involvement in the incident and that the he only showed concern for his legal predicament. In the same report, the defendant’s mother indicated that they have trouble controlling him. The same report also commented that he started re-offending seven weeks after being released from custody on his prior sentence. During the prior custodial sentence he served portion at Ranch Ehrlo, treatment-oriented facility, so that he could get counselling. Custodial Progress Report from the Battlefords’ Youth Cottage dated October 24, 1988 noted that the defendant did not progress well. He had institutional violations like stealing from other residents. Additionally, it was noted that has had inadequate parental discipline and his parents are unable to say “no” to him. Tab 1991-03-19 Break and enter with intent s.348(1)(b) 12 months (not on record) Unlawfully at large 145(1)(b) 75 days consecutive The defendant was serving youth sentence when he went unlawfully at large. While on the run he broke into the Livelong General Store. The defendant was an adult at the time of both offences. The defendant had six months left of his youth custody sentence. After serving his adult sentence, the defendant was returned to youth facility at age 19 to serve the remainder of his youth sentence. Progress Report dated March 26, 1992 noted that upon admission the defendant’s goals were to attain employment, attend Narcotics Anonymous, and to obtain his driver’s licence. The report noted that he realized all of those goals except going to Narcotics Anonymous, and that arrangements had been made for his attendance for service in his home community. Tab 1991-05-21 Assault s. 266 months concurrent with sentence serving The defendant had an altercation with an older disabled cousin at his grandfather’s house. The cousin, who requires crutches, woke the defendant suddenly and aggressively. J.R.S. responded impulsively by pushing the cousin with sufficient force causing him to fall. J.R.S. said he broke the fall. The circumstances of this incident are from the defendant’s account to Dr. Wormith. Tab 10 1991-07-07 Assault s. 266 60 days Dangerous driving s. 249(1)(a) months consecutive Impaired driving s. 253(a) 30 days consecutive Obstruction s. 129 30 days on each Probation Breach Tab 11 1993-04-29 Fail to comply s. 145(3)(a) months Fail to comply s.145(3)(a) $300 Fail to attend s. 145(2)(b) month consecutive The defendant was arrested in relation to offences contained at Tab 13. He was released and 12 days later breached his curfew clause. One month later, police were checking cars at the local bar and the defendant violated his abstain condition. He also failed to keep the peace when relative reported that he had taken battery from vehicle. Tab 12 1993-05-18 Fail to comply s. 145(3)(a) 30 days consecutive to N/A sentence serving Tab 13 1993-06-01 Assault with weapon s.267(1)(a) years less one day Assault causing bodily harm s.267(1)(b) 20 months concurrent Point firearm s. 86(1) year each concurrent Possession of prohibited weapon s.100(12) 10 year prohibition The defendant, who had just been released from jail (Tab 10), seriously assaulted his six month pregnant sister when she refused to give him keys to the family truck because he was drunk and disqualified driver. As result, he became physical with her pushing and hitting. He got her to the ground where he punched her couple of times in the head. The victim asked relative to call the police, but the defendant threatened to hit the victim more. She raced out of the house to call police; he followed and cornered her. She grabbed steak knife to defend herself, but threw it away. He kept asking for the truck keys and the victim jumped out of the kitchen window to get away. The defendant ran out of the house and he repeatedly punched her again and again on the face and head area. He then swung what the victim believed was an axe at her face. The victim said she moved out of the way and it narrowly missed her face. The victim went back into her family’s house and the defendant followed, kicking in the door. The victim ran to the bathroom and locked herself in. She opened the door because he was going to break it down. While the victim was in her parent’s house the defendant retrieved rifle from her parents’ closet. The defendant pointed the gun at the victim and her children, saying that he did not care what he did to her, her children and, her unborn child. The victim gave the defendant the keys. At some point in the assault, the victim said the defendant also kneed her once in the stomach. The entire episode lasted about to hours. She suffered sore jaw, sore hips, headaches, scratches to her neck from when he was choking her. Her unborn child was not affected. In handing down his decision and sentence, the presiding Provincial Court Judge commented at page 95 through paragraph 21 of the transcript: The public must be protected from this very violent person. He’s out of jail very short period of time and right into big trouble again. And until Mr. J.R.S. comes to the realization that he and liquor just do not mix at all, and he may never come to that realization, he is going to be nothing but trouble for those who are unfortunate enough to be in his proximity when he’s not in custody. Tab 14 1995-03-13 Fail to comply Recognizance s. 145(3) 60 days Tab 15 1995-10-02 Dangerous operation of motor vehicle $750.00 Tab 16 1996-10-15 Assault cause bodily harm s.267(1)(b) Time served day (Spousal) Fail to attend s. 145(2) year probation (Spousal) 7days consecutive The circumstances of this assault against his pregnant spouse L.L.A. are not available. However, transcript of the sentencing dated October 15, 1996 notes that the presiding Judge Kim Young PCJ stated that this was minor assault causing bodily harm where: “her injuries weren’t like many, many that you see with broken teeth or cuts or things like that. This some bruising to her neck and to her cheek.” [Transcript of Proceedings page 3, line 18] The judge, as part of the probation term, ordered that the defendant not have any contact with the victim. The prosecutor represented to the judge that the defendant had been phoning the victim upwards of nine times day from jail. [Transcript of Proceedings page 5, line 7] Tab 17 1996-10-29 Assault s. 266 30 days (Spousal) 12 months probation This assault, which pre-dates the assault causing bodily harm against L.L.A. contained at Tab 16, consisted of the defendant striking the victim twice on the head with closed fist. The victim was holding her baby at the time. third blow glanced off the victim and hit the baby. The defendant, who had been out drinking, was angry when he came home. The defendant and the victim started yelling. The defendant’s mother quickly left and then that’s when the assault occurred. Tab 18 1997-01-07 Assault s. 266 (spousal) yr. yrs. Probation Breach of probation months concurrent (Spousal) The defendant, who was on two concurrent probation orders to not have contact with his spouse, L.L.A., and had two months earlier been released from custody, hit her in the side of the head at community dance. An intoxicated defendant, punched her on her left shoulder and side. She tried to ignore him and then he punched her in the back. He began chasing her in the crowded gymnasium. She tried to run out the door and the defendant caught her and dragged her out the door despite bystanders trying to stop him. He pushed her to car, but she ran away with the encouragement of people who had been at the dance. The defendant caught her and put her in headlock taking her back to the car. The defendant had hold of L.L.A.’s hair so that she could not escape. L.L.A.’s brother hit him with bottle and he let go of L.L.A.’s hair. L.L.A. and number of people left the area. The victim suffered sore head and back. She also had some hair loss. The defendant was transferred to community training residence. His plans were to seek employment and address his anger and substance abuse issues. He completed St. Louis programming for substance abuse. He attended Alternatives to Violence programming in North Battleford, but did not complete it. Tab 19 1997-10-06 Refuse Breath Sample s. 254(5) $700, Driving prohibition Drive while disqualified s.259(4) $500 Mischief over $5000 s.430(3)(a) 30 days each concurrent Probation Breach s. 733.1(1)(a) Tab 20 1998-10-20 Probation Breach x2 s.733.1 15 days each consecutive Drive more than 80 mgs s.253(b) months consecutive Probation Breach s. 733.1 15 days consecutive Fail to Attend x2 s. 145(2)(a) 10 days each consecutive There is no file information with respect to the offences in Tab 20 except for the fail to attend. However, the endorsements on the informations indicate an admission to Saskatchewan Hospital North Battleford to determine fitness pursuant to s. 672.13 prior to his being sentenced. Psychiatrist, Dr. Oluwadairo, prepared psychiatric court report that indicates the pending offences including two threat charges against his spouse. In the report, at page the defendant admitted that: “... in the past he had beaten her (L.L.A.) up on several occasions. He also admitted that he failed to appear when he was due in court and explained that he went to work instead of going to court and he was reminded by his boss that he was due in court that day. However, it was already too late for him to get to court. On the second occasion he claimed that he was contemplating not appearing and eventually he forgot to. He claims that there were too many court dates set for him and that he was rather afraid of losing his freedom as he has been in jail almost every year since 1986.” Tab 21 1999-09-07 Breach of Probation s. 733.1 15 days Breach of Probation s. 733.1 15 days The defendant failed to refrain from drinking and failed to refrain from having contact with L.L.A.. Tab 22 2000-05-02 Drive while disqualified s.259(4) Time served (37 days) Tab 23 2001-02-06 Assault (Spousal) s. 266 months The defendant and L.L.A., who was seven months pregnant at the time, were at home. He was upset with her for not sleeping with him the night before. He suddenly punched her in the head. He said he did not care if he went to jail. He punched her twice more when they were outside. They went back into the residence and he punched her in the forehead and was holding her wrist. The defendant’s mother came out and chastised the defendant for his behavior. The defendant’s mother then left. The defendant hit L.L.A. again on the head. L.L.A. left and ran to nearby house. The defendant was arrested and released on and undertaking to not have any contact with L.L.A.. Tab 24 2001-04-19 Assault (spousal) s. 266 years each concurrent Assault with weapon x2 s.267(a) (spousal) firearm prohibition Fail to comply with recognizance x2 s. 145(3) Uttering threats s.264.1 Possession Contrary to order Pointing firearm s.87 Forcible confinement s. 279(2) The defendant was released on an undertaking August 28, 2000 in relation to an assault contained at Tab 23. condition of release was to have no contact with L.L.A.. One month after the defendant’s release, he had their son call L.L.A. and ask when she was coming home. The defendant and son went to where the victim was staying to encourage her to come with them. She did not want to make scene so she went and stayed with him at his parent’s home. She wanted to leave but the defendant told her she was staying. One week later, the defendant was drinking and that is when he started to physically abuse L.L.A. again. The abuse started after L.L.A. and the defendant were drinking with her brother. They drove her brother home and L.L.A. decided to stay with him as she was concerned about the defendant becoming abusive. The victim ran into her brother’s house to call police; the defendant followed her; and started kicking her. Bystanders could not get the defendant to stop. He then dragged the victim out of the house into the bush. The defendant warned that if someone called the police that the victim was going to get it. The defendant calmed down and talked to the victim convincing her to go home with him. few days later the defendant and the victim were at the store. The defendant became jealous of another man that was there. He drove frightened L.L.A. back to their residence. The defendant put the victim in room and started punching her, saying he wanted the truth about her suspected infidelity. He punched her nose and restrained her from running by forcing her to lie on the bed. He brought up how much she had hurt him by causing him to go to jail in 1997. He kept her in the room for to hours. The couple’s four children were in the residence. The victim tried to get them to call police. While in the room the defendant hit her with coffee cup causing cuts to her legs. He hit the victim repeatedly every time she provided an answer he did not like. When the defendant got tired of hitting her with the cup, he hit her with frozen bologna that he had given her to ease her sore nose. He proceeded to hit her all over with the frozen bologna. The defendant did not allow the victim to use the washroom telling her she could “piss herself there”. The next morning the defendant still would not let the victim out of the room. She asked if she could use the washroom she could barely walk and was sore all over. The defendant got rifle and began threatening her with it. He told her that if she ran he would shoot her. He warned that if she did get away and charge him that he would hunt her down and when he got out she would get it worse. The defendant finally allowed her to use the washroom. The victim was trying to figure out how to get away. She ran out the door and the defendant caught her. He dragged her back to the house. She grabbed her son so the defendant would not hit her. The defendant knocked her down in front of their son and then dragged her back into the bedroom. The defendant began whipping the victim’s legs and back with an elastic cord with hooks on it. He eventually stopped and said the victim could take bath. The victim got in the tub and then was concerned that the defendant would drown her so she let the water out. The defendant became angry and was pushing her head telling her not to let the water out. The victim could feel rifle to her head. He kept punching and pushing her. He would not let her put her clothes on. He threatened to tie her up naked so she couldn’t run away. He put her back in the room naked. He threatened that if she ran away he would hunt her down and she would get the same thing but worse. The defendant said that he and the victim could start over. The victim was too terrified to leave. The defendant went hunting. The victim’s brother came over and she gave him letter to give to the police. The defendant was arrested by the police and while he was being held awaiting trial he wrote multiple disturbing letters to the victim that are contained in Tab 24. In one letter he asked her to assist him in his legal predicament and then went on to say that he would be back and would retaliate. Tab 25 2003-04-17 Statutory Release The defendant was released on statutory release April 17, 2003 to live back at T[…] First Nation. Tab 26 2003-09-17 Warrant Apprehension Statutory Release Recommitted The defendant’s statutory release was suspended May 18, 2003 for drinking and assaulting L.L.A.. Tab 27 2003-11-04 Assault s. 266 months consecutive sentence serving (Spousal) The defendant was on statutory release for about one month and with the victim L.L.A. for about one week when punched the victim with both fists causing bloodied nose and redness to the cheeks. She also complained of sore jaw. The defendant, victim and some friends were in car. The defendant was passed out in the front seat. The victim was joking around and tried to wake the defendant by holding his nose. The defendant suddenly awakened, turned around and punched the victim. Tab 28 2006-03-23 Assault s.266 months consecutive The defendant and fellow prisoner were in the transport truck when the defendant struck the victim with his fist few times in the face causing bleeding nose. The dispute was over the victim’s relationship with L.L.A.. Tab 29 Predicate offence Assault s.266 (spousal) Assault causing bodily harm s.267(b) (spousal) Break and Enter with intent s. 348(1)(b) Undertaking s.145(5.1) Breach non-contact s.127(1) Pending Obstruction s. 139(2) [31] Although not referred to by the Crown in her brief, the conviction in Tab of Exhibit P-6 is relevant to this application. The conviction of assault with weapon of January 26, 1989, for which J.R.S. received four months open custody, consecutive to his serving sentence, stems from the following particulars from the prosecutor’s information sheet dated December 15, 1988: On the above noted time and date the accused was waiting for his gym class to start at the A[..] School where he is student. He obtained length of fishing line approximately feet in length from friend of his. He proceeded to wrap the line around each hand leaving length of about foot between. He walked up behind another boy attending the same gym class in manner that would not arouse suspicion, told the boy to “come here” and the reached over the boy’s head with the fishing line stretched tight between his hands in the manner of “garot”. He then attempted to bring the line tight against the boy’s neck, however the boy was able to block this attempt. struggle ensued and the fishing line was dropped by the accused. The accused then picked the boy up, held him over his shoulder, then dropped him to the floor. By the accused’s own admission, there was no provocation for this attack. The victim, Geordie CARSWELL, is thirteen years of age and considerably smaller than the accused who is also years older. B. The Pattern of Repetitive Behaviour and Pattern of Persistent Aggressive Behavior: [32] L.L.A. started relationship with J.R.S. when she was age 15. Between approximately 1995 and February, 2005, J.R.S. has been convicted of assaulting L.L.A. eight times, with an additional two as result of this conviction rendered on September 17, 2008. The conviction of assault causing bodily harm of February 20, 2005 is the predicate offence. [33] Crown submits that J.R.S. can be best described as serial spouse batterer. Crown submits that J.R.S.’s crimes against L.L.A.: ... have been perpetrated in public and in private; in the presence of his children and parents; and, when he and L.L.A. are alone. He has used his fists, feet, cords, cups and guns to cause both physical and psychological harm to L.L.A.. She has sustained spectrum of injury including cuts, bruises, bumps and scrapes to her arms, legs, head, chest, back hands and feet. The Defendant perpetrates violence against L.L.A. whenever and however he wants and always when he is under the influence of alcohol or illicit drugs. [34] On the basis of the evidence on this application, find that Crown has correctly characterized J.R.S.’s behaviour as it pertains to L.L.A.. [35] J.R.S. has been convicted of assaulting other people as well, both when he is sober and when he is intoxicated. He attacked his pregnant sister when she refused to give him the keys to the family truck. He was both intoxicated and disqualified driver at the time. [36] As youth, he attempted to strangle smaller boy, three years his junior. While on remand, he assaulted shackled fellow prisoner. [37] On the whole of the evidence, find that the Crown has proved beyond reasonable doubt that J.R.S. constitutes threat to the life, safety, physical and mental well-being of other persons. The evidence establishes that there is pattern of repetitive behaviour by J.R.S. showing failure to restrain himself and establishing likelihood of causing death or injuries to others in the future, as defined by s. 753(1)(a)(i). [38] Furthermore, the Crown has proved beyond reasonable doubt that J.R.S. exhibits pattern of persistent aggressive behaviour showing substantial degree of indifference respecting the reasonable foreseeable consequences to others of his behaviour, as defined by s. 753(1)(a)(ii). [39] On this basis, the Crown has proved beyond reasonable doubt that J.R.S. meets the criteria of dangerous offender under s. 753(1)(a) of the Criminal Code. However, on the basis of Johnson, supra, the court must enquire whether J.R.S. may be designated long-term offender in accordance with s. 753.1(1) of the Criminal Code. It is only if the court is not satisfied that there is reasonable possibility of eventual control of the risk that J.R.S. will re-offend in the community that dangerous offender designation will be imposed. (See: Moosomin, supra.) [40] now turn to the evidence and the expert testimony presented at the hearing. V. EVIDENCE [41] Crown and defence led evidence in this hearing addressing the issues outline in Lemaigre, supra, and in Moosomin, supra, to assist the court in determining whether J.R.S.’s risk in the community can be managed to an acceptable level. A. Crown Witnesses [42] Jack McDowell is the assistant deputy director of operations at the Saskatoon Correctional Centre. J.R.S. was admitted to remand on March 2, 2005, after he was arrested for the charges which are now the subject of these convictions. McDowell confirmed there is no programming available to persons on remand. J.R.S. committed institutional infractions over the time frame, and the assault on Benjamin Fineday in 2006 was the most severe. McDowell stated J.R.S. has not been member of gang, and he has been employed on the remand unit as domestic, which is position of high trust within the correctional centre. [43] Reyna Siwak is parole officer with Corrections Services Canada (“CSC”), and employed at the Saskatchewan Penitentiary in Prince Albert. She develops and manages offenders’ plans to reduce their risk of re-offending. J.R.S. was one of her cases when he was sentenced to three year term (following guilty plea and joint submissions) for the assaults committed against L.L.A. in 2000. [44] Siwak’s case plan for J.R.S. during his incarceration from April, 2001 to April, 2003 included the cognitive skills programming, the intensive substance abuse programming, and the aggressive behaviour control programming (the “ABC” programme). Siwak recounted that J.R.S. did well in the cognitive skills programming. He completed the intensive substance abuse programme (“OSAP”), but when he was required to participate in the maintenance programme for substance abuse, his motivation deteriorated. Indeed, within one month of being released from the Penitentiary, J.R.S. assaulted L.L.A. while intoxicated, and his release was suspended by the National Parole Board (“NPB”). [45] Siwak stated J.R.S. needed to address his family violence issues when he was incarcerated in 2001. The ABC programme was the one available at that time. It was high intensity six month programme directed at dealing with violent behaviour. [46] While J.R.S. signed the waiver at the time of intake to participate in the ABC programme, he changed his mind and did not take the programming. He stated he wanted to take another programme titled “In Search of Your Warrior” but Siwak explained it was merely pilot project at the time and not available to J.R.S. at his intake. [47] Defence counsel, on cross-examination, pointed out that it has been seven and one-half years since J.R.S. had refused to take the ABC programme. However, this time frame means little, because soon after J.R.S.’s release he committed the predicate offence and other offences, and has been on remand since. There has been no opportunity for CSC to assist him with his domestic violence issues to date. [48] Dr. Wayne Schapkohl is psychologist employed with the Prairie North Mental Health Unit in North Battleford. He treats offenders ordered by the domestic violence options court, project of the Provincial Court of Saskatchewan. He explained how the treatment programme operates. About one third of its participants are from outlying areas, including the T[…] First Nation. [49] Dr. Schapkohl testified that the records of the Battlefords Mental Health Centre indicate that J.R.S. entered therapy in 1989. He was doing well with the sessions, but the group sessions were discontinued before he completed the programme. The records indicate that J.R.S. started an Alternatives to Violence programme in November, 1997. The records indicate he had assaulted his spouse, and that he had long history of alcohol abuse. The records indicate J.R.S. did not complete this programme. [50] It was Dr. Schapkohl’s view that if there is long history of substance abuse by an offender, as well as spousal abuse, it is better to treat the substance abuse issues first. [51] Michelle Ketmerick is the director of the Saskatchewan Impaired Driver Treatment Centre, formerly the St. Louis Alcoholism Rehabilitation Centre. Ketmerick stated that the Centre uses similar treatment model as CSC for substance abuse, that is, cognitive behavioural approach. [52] The Centre’s records indicate that J.R.S. took the substance abuse programme at St. Louis in 1997. He completed the programme. However, he only remained sober for period of six months thereafter. [53] In cross-examination by defence counsel, Ketmerick admitted that relapses are common. However, the person must be able to succeed in his own environment. If an offender returns to the same environment, he will need mentor or support system, like NADAP. [54] Lee Ann Skene is the manager of programmes for CSC at the Saskatchewan Penitentiary. She outlined the intake procedure for an offender and how corrections plan is developed for him. This includes extensive interviews with the offender. [55] All programmes are voluntary, and offenders are paid to attend them. All offenders know the difficulty of early release if they have not addressed areas of concern outlined in their correctional plan. [56] Skene confirmed that high intensity programmes are offered for substance abuse and for family violence. While any inmate in segregation cannot take programming, it is otherwise offered to all inmates, including those serving an indeterminate sentence as dangerous offender. The waiting lists for programmes are short. Skene estimates that J.R.S. could complete both the substance abuse programme and family violence programme within two years after completion of intake. [57] If an inmate is successful in his rehabilitation, he can be reclassified to minimum security. After period of stabilization, even dangerous offenders may apply for temporary absences, then day parole, and full parole. Skene stated that the dangerous offender must make the necessary changes in his risk to re-offend; CSC is there to help him make those changes. [58] In cross-examination by defence counsel, Skene admitted that the question of addressing the offender’s risk in the community includes the community support available to the offender. That is one factor in addressing the offender’s risk. [59] Alan Vermeulen is community parole officer for CSC, and supervised offenders on release in the community in north-west Saskatchewan from 2005 2009, including the T[…] First Nation. He does not know J.R.S. personally. [60] Vermeulen explained that the community parole officer visits offenders on weekly basis on the T[…] First Nation. Along with visiting the offender, Vermeulen usually consulted the NADAP worker and his employer (if applicable) to confirm the offender’s progress. Twenty-four hour supervision is not possible at the T[…] First Nation. The NADAP worker is the only resource for an offender, other than the Alcoholics Anonymous weekly meetings in Turtleford. [61] Vermeulen agreed with defence counsel that it would be ideal if the T[…] First Nation had programme in place to assist J.R.S. and the First Nation wanted to work with him. [62] The last witness to testify for the Crown was L.L.A. herself. At the commencement of the hearing L.L.A. advised the Crown she had recently received two letters from J.R.S.. The Crown arranged for subpoena for L.L.A. to testify. [63] L.L.A. brought two letters from J.R.S., one consisting of two handwritten pages and second one consisting of six handwritten pages. The letters being Exhibits P-10 and P-11, are undated. Both were in her mailbox when she went to collect her mail at Cutknife the second week of September, 2009. [64] L.L.A. explained that J.R.S. telephoned her several times during September, 2009. She talked to him because of their children, who want their parents to be friends. L.L.A. stated that she took therapy for year to deal with J.R.S.’s violence against her. L.L.A. told defence counsel that “J.R.S. needs lot of treatment.” [65] The contents of the two letters are disturbing, to say the least. The first letter instructed L.L.A. to get lawyer and explain that she lied at the trial. J.R.S. told her that his family would pay her legal costs. He told her not to tell anyone that he put her up to it. [66] The second letter, which states that the dangerous offender hearing is forty-nine days away, outlines in point form what J.R.S. wants L.L.A. to do to overturn this conviction. He perceives that if she lies, he will have the case dismissed against him. She, on the other had, will get fined or probation. J.R.S. added at page 2: ...you won’t go to jail because you don’t have prior record. know was wrong the last time but never thought you’d be placed in jail. Contempt of court is more serious case, plus you didn’t have lawyer to protect you. This time you will cause i’ll make sure you have one at my expense. [67] At page 3, J.R.S. continued: ...I don’t feel proud for what i’ve done to you. Hell, was scared right from the start. Do you remember how bad felt and stayed by your side throughout your injuries? was scared for you cause knew could’ve killed you by accident. laid with you, hugged you, and nursed you, my doings to you were so wrong. Here was trying to get back with you and rather than protecting you hurt you ... [68] At page 5, J.R.S. outlined, in point for, what he wanted L.L.A. to do to overturn the conviction: L.L.A., i’ll just write out the steps that you must take if you’re going to help me. Rather than waiting for your letter and then me writing back. By the time we get that done, at least wks will go by. So here are the steps: You’ll have to do it in the order put it. (1) Get ahold of lawyer. (2) Explain the situation that you made mistake that got me convicted. (3) Tell him or her about how you were treated by the system so you only said what they wanted to hear, and that they forced you to lie about my case. (4) Your injuries came from fighting Wop and Kyle throwing you off the steps. Kyle can’t say he did that to you because he already told my lawyer he doesn’t remember anything that evening. (5) If you are questioned why you blamed me, you can say because it’s what they wanted to hear. They even put you in jail because you wouldn’t testify. The letters wrote to you while you were in P.Grove were only answered mail that you had written to me. (6) Ask questions that you need to know. Which ever lawyer you get if you to help me will guide you as well... B. Defence Witnesses [69] Chief D.A. testified that he has been chief of the T[…] First Nation for the last three years of four-year term. He is pipe carrier, and recounted that culture was his personal salvation. Until he was age 24, he had been an alcoholic. Now he has an education degree and has spent time helping others. [70] Chief D.A. filed letter with the court stating that if J.R.S. is released from custody, he “is welcome to reside on the T[…] First Nation as he is not viewed as an imminent threat to the public or to himself”. The letter also states that the chief and council will assist J.R.S. “both generally and financially to ensure that Mr. J.R.S. is able to undergo any necessary treatment as determined by health care professional and further, to ensure he complies with any other Court imposed conditions.” [71] Chief D.A. also filed with this hearing copy of band council resolution from the P[…] First Nation, resolving to assist the court by facilitating the no-contact clause as it relates to its member, L.L.A.. The band council resolution states that “should J.R.S. be released from custody that it is clearly understood that he is not to enter P[…] First Nation for any reason for the duration of the Court order”. [72] Chief D.A. stated that J.R.S. has never contacted him, and he does not know J.R.S. personally. Chief D.A. stated that he has instructed the justice worker to prepare plan for J.R.S.’s return to the community. He stated that the NADAP worker will prepare substance abuse programme for J.R.S.. None of this had been completed by the time of this hearing. Chief D.A. admitted that J.R.S.’s situation is extreme, and an extreme programme will not be developed until needed. [73] Chief D.A. sees J.R.S.’s parents as huge positive influence. They practice traditional cultural ways, and they are respected in the community. [74] M.T. has been the justice co-ordinator for T[…] First Nation for three months. This is an interim position and she will return to her employment in the Yukon at the end of the twelve month term. She brought letter to court which confirms that J.R.S. would have full-time employment as lumber piler upon his return to T[…] First Nation, with the Thunder Employment Field Services. [75] T[…] First Nation stated she started working on case plan for J.R.S. the week prior. There were no details provided to the court. T[…] First Nation stated that there are other resources available on the reserve, including life skills programme offered twice week, and Alcoholics Anonymous weekly meetings in Turtleford. She admits there are no programmes to deal with violent behaviour. However, she states that she is available anytime if J.R.S. feels he has problems. [76] Randall Simpson is corrections worker at the Saskatoon Correctional Centre. He works on the remand unit, and has observed that J.R.S. quickly worked his way up to position of trust in the unit. That is, he is assigned to plate the meals on the unit for the inmates because he divides up the portions of food fairly among the inmates. [77] Simpson agrees that J.R.S. has had periods where he got into trouble on remand. But, he can go for large stretches of time without any incidents. In short, Simpson finds that J.R.S. behaves well in the structured environment of the institution. C. The Expert Evidence [78] Three witnesses testified who were qualified to give expert testimony. Dr. Roger Holden completed the part XXIV assessment on J.R.S. as required by the order. He was qualified as psychologist to give opinion evidence on the assessment of violent offenders who may be designated as dangerous offenders or long-term offenders. [79] The Crown also called Deborah Farden, masters level psychologist, who was qualified as an expert to give opinion evidence on intimate partner violence, including the treatability of intimate partner offenders and the availability of treatment options in the community. [80] Defence called Dr. Stephen Wormith. He was qualified as an expert to provide evidence on the dangerous offender designation as it relates to J.R.S.. 1. Deborah Farden [81] Deborah Farden has worked extensively in the area of femicide, that is, women killed who were involved in an intimate relationship. She now accepts referrals from the domestic violence court operated under the Provincial Court of Saskatchewan in Saskatoon. There are 95 120 men in this programme at any time, most are medium to high risk offenders, including aboriginal offenders. Farden explained that programmes offered in the community to treat offenders for domestic violence are limited to Saskatoon and North Battleford. [82] For an offender to be successful in treatment, he must have an individual level of responsibility. This is so even if First Nation community offers to take responsibility for him. Even if the partner to the intimate personal relationship does not behave well, the offender in treatment is responsible for his own behaviour. [83] An offender is likely to be more successful in his treatment if his family speaks up against the violence. The more strongly the offender gets this message, the more likely it will affect his change. [84] Farden outlined the various lethality indicators of femicide. They include: a. stalking and continued, persistent, unwanted contact (in person, by letter, through other parties); b. an unemployed male; c. history of prior spousal violence; near-femicide predicts future incident; d. history of avoiding arrest for the intimate partner violence, that is, dissuading the partner from going to court; e. children in the home who do not belong to the offender. [85] If all these factors are present, there is high lethality risk for femicide. [86] Farden does not know J.R.S. and did not comment on him personally. However, find that the evidence before the court points to high lethality risk of femicide in J.R.S.’s situation with L.L.A.. He continues to stalk L.L.A. by letter, attempting to put her freedom in jeopardy for his personal gain. The numerous obstruction convictions in this case result from J.R.S.’s attempt to dissuade L.L.A. from testifying against him. The serious spousal violence of 2000 was followed by second serious spousal violence perpetrated against L.L.A. again not long after J.R.S.’s release from incarceration. [87] J.R.S.’s family, to date, has done nothing more then attempt to cover for his violent behaviour against L.L.A.. His father told story at trial that L.L.A. must have sustained her injuries from falling down the basement stairs. His father also took the fifteen year old son along to witness his father beat his mother, and then observe J.R.S. bring her back to house [...] to be hidden from view until the R.C.M.P. executed Feeney warrant to locate L.L.A.. J.R.S.’s mother was an accomplice in hiding L.L.A. in the house while her injuries healed. [88] Neither Dr. Holden nor Dr. Wormith see themselves as experts in intimate partner violence. Farden’s testimony was helpful for the court to appreciate J.R.S.’s level of risk to harm L.L.A.. 2. Dr. Roger Holden [89] As result of the testing and interviewing of J.R.S., Dr. Holden concluded that J.R.S. is high risk to re-offend in violent manner. J.R.S. has chronic alcohol problem and is violent person, especially when he is intoxicated. [90] The release plan J.R.S. completed for Dr. Holden was superficial and did not address the problems he must address to rehabilitate. J.R.S. planned to return home and get job. Dr. Holden stated that there is problem in him returning to the T[…] First Nation. He will return to the same group of peers that facilitate his substance abuse. His family has supported his spousal abuse in the past. Dr. Holden could say no more about the family because he tried to contact J.R.S.’s parents several times for this assessment, but was unsuccessful. [91] Dr. Holden found that J.R.S. does not express remorse for his wrongdoings; he does not accept his culpability; he minimizes his criminal behaviour. Dr. Holden states that all of this leads to poor prognosis for treatment. [92] While J.R.S. is highly intelligent, he has an antisocial personality disorder. He is indifferent to rules, adjusts poorly in the community, and conducts criminal activity. J.R.S. has psychopathic tendencies which makes one less optimistic about the treatment outcome. [93] Dr. Holden testified that J.R.S. requires high intensity violence related programming offered by CSC to address his violent tendencies. He also requires intensive substance abuse treatment. However, because J.R.S. has taken these programmes and re-offended in violent manner afterwards, while intoxicated, definite period of incarceration has the potential for relapse. J.R.S. needs significant change of attitude to stop drinking. It is not impossible that he will stop drinking; but it is highly unlikely. [94] Dr. Holden concluded that J.R.S. is treatable because he is intelligent, young and wants to get out of jail. However, his prognosis for J.R.S. is guarded. J.R.S.’s ability to benefit from treatment is unknown. Dr. Holden cannot estimate time frame for eventual control in the community of J.R.S.’s risk to re-offend. [95] All that being said, Dr. Holden concluded that the court ought to find J.R.S. long-term offender. [96] In cross-examination by defence, Dr. Holden explained that having high intelligence quotient means that J.R.S. is able to understand the programming and he has better potential for insight. [97] Dr. Holden stated that he has “guarded hope” for J.R.S.. If J.R.S. addresses his impulsiveness and alcoholism, and learns more appropriate behaviour, Dr. Holden’s hope is guarded but good. If J.R.S. drinks alcohol again, the prognosis is poor to non-existent. 3. Dr. Stephen Wormith [98] Defence called Dr. Wormith to provide opinion evidence on whether J.R.S. ought to be designated dangerous offender. Dr. Wormith concludes that long-term offender designation is appropriate. [99] Dr. Wormith and Dr. Holden utilized different testing methods, but came to similar conclusions. Both experts agree that J.R.S. is high risk to re-offend generally and violently. The risk is the same as when he was remanded in custody. J.R.S. requires intensive programming to deal with his substance abuse and his domestic violence tendencies. They agree that J.R.S. has an antisocial personality disorder. They agree that J.R.S. is intellectually bright, and the potential for him to learn is good, for example, in using abstract reasoning skills. [100] Dr. Wormith stated the premise that the dangerous offender designation is based on the criteria that it identifies those offenders with an extremely high likelihood of offending in very serious way. The provisions of s. 753(1) of the Criminal Code are not to target individuals who have not committed the most violent offences. He stated that he considers the severity of the offence in providing his expert opinion. Dr. Wormith concluded that the predicate offence of the assault on L.L.A. is not an assault that rises to the level of severity to consider J.R.S. dangerous offender. Therefore, J.R.S. ought to be found long-term offender. [101] Dr. Wormith concluded that full scope of treatment has not been provided to J.R.S. in the past. He suggested that fixed sentence provides time frame for CSC to provide the necessary programming that J.R.S. requires. [102] Dr. Wormith suggested that this dangerous offender application is sufficient motivation for J.R.S. to take responsibility for his behaviour and to reduce his risk to the public. Dr. Wormith stated that J.R.S.’s present risk can be reduced if J.R.S. takes treatment. This presumes that he will participate in programming, that he has positive and appropriate behaviour while incarcerated, that he does not drop out of the programmes, and that he internalizes the programming. Dr. Wormith does admit that J.R.S.’s history of decreasing involvement in programming offered to him while incarcerated is “of concern”. [103] Dr. Wormith referred in his report to patterns emerging from review of J.R.S.’s criminal history. This theme includes at page 12: ... With the exception of some adolescent aggression, the sole victim has been Mr. J.R.S.’s ex-spouse. Although it is not the intention or purpose to assess the dynamics of this relationship, nor to attribute any blame to the victim it is possible that Mr. J.R.S.’s behaviour is at least partially product of this particularly dysfunctional relationship to which both parties have contributed. [104] Dr. Wormith admitted that intimate partner violence is not an area of specialty. Dr. Wormith admitted that the factor of separation between J.R.S. and L.L.A., which he saw as mitigating factor when he prepared his report, may not be so given that J.R.S. has written letters to L.L.A. recently. Those letters envision ongoing contact with L.L.A. on J.R.S.’s part. Dr. Wormith agreed with Crown that J.R.S. has not broken with L.L.A. psychologically. [105] Dr. Wormith admitted that J.R.S. lying to him about his lack of recollection of the assault on L.L.A. has treatment implications. The letters sent to L.L.A. caused Dr. Wormith concern as to whether J.R.S. will comply with court orders. [106] All that being said, Dr. Wormith concluded that long-term offender designation is appropriate. However, J.R.S. may not be able to return to his home community for supervision because it is too easy for him to return to his former lifestyle. [107] Dr. Wormith could not provide an opinion on the length of time it will take for J.R.S. to benefit from programming such that his risk to re-offend may be controlled in the community. He stated that it all depends on J.R.S.’s rate of progress. It is Dr. Wormith’s hope that J.R.S. takes advantage of the opportunity to reduce that risk. VI. ANALYSIS AND CONCLUSIONS [108] The evidence is conclusive that the offence for which J.R.S. has been convicted is a serious personal injury offence as required by s. 753(1)(a) of the Criminal Code. The evidence is also conclusive that J.R.S. constitutes a threat to other persons because of his pattern of repetitive behaviour as defined in s. 753(1)(a)(i) and his pattern of persistent aggressive behaviour as defined in s. 753(1)(a)(ii). The opinions of Dr. Holden and Dr. Wormith both find J.R.S. to be high risk to re-offend in violent manner. [109] Before the court finds J.R.S. dangerous offender, the provisions of s. 753.1(1) pertaining to long-term offenders must be considered. Case law requires the court to be satisfied of all the conditions set out in s. 753.1(1) of the Criminal Code. The Crown has proved beyond reasonable doubt that it would be appropriate to impose sentence of imprisonment of two years or more for the predicate offence. J.R.S. has also been convicted of breaking and entering dwelling house to commit an indictable offence pursuant to s. 348(1)(b) of the Criminal Code. That offence carries maximum sentence of life imprisonment. [110] The Crown has proved beyond reasonable doubt that there is substantial risk that J.R.S. will re-offend. Thus, am satisfied as to the conditions set out in s. 753.1(1)(a) and (b). [111] For the court to find J.R.S. long-term offender such that definite sentence may be imposed, followed by supervision in the community, must be satisfied that there is reasonable possibility of eventual control of the risk in the community, as required by s. 753.1(1)(c). [112] Both Dr. Holden and Dr. Wormith are of the opinion that long-term offender order is appropriate. Although defence counsel suggested that J.R.S. would be given “time served” for being on remand, and then released on certain conditions, neither expert sees this as viable at present. Both experts recognize that J.R.S. requires programming for his substance abuse and his violent behaviour in an institutional setting. [113] The T[…] First Nation wants to provide support for J.R.S.. However, on all the evidence, its support system is at present non-existent. Assurances by the band council that conditions will be complied with and band council resolutions to prevent J.R.S. from contacting L.L.A. are positive steps. However, must conclude that they will no more sanction J.R.S. than any previous or current court orders have done. [114] must reject both Dr. Holden’s and Dr. Wormith’s expert opinions that long-term offender order would be appropriate. Dr. Holden’s opinion is based on hope. Dr. Wormith’s opinion is based on an incorrect premise in law and on misapprehension of the facts. [115] As reviewed in R. v. Haug, 2008 SKCA 23 (CanLII), the test for J.R.S.’s eventual control in the community is not based on hope, but reasonable possibility of eventual control. Smith J.A. stated at para. 87 91: In Goforth, the trial judge had relied upon the evidence of the assessment report of the clinical psychologist, who opined that the offender should be designated long-term offender although his previous behaviour suggested that he was not presently manageable in the community and there was "little possibility of the eventual control of the risk in the community," noting that he had had opportunities in the past to participate in rehabilitative programs while incarcerated but had been unable to apply knowledge learned in ameliorating risk in the community. Nor had he taken any responsibility to address his problem of substance abuse and the pattern of violent behaviour was escalating. Nonetheless, the expert felt that the offender ought to be given an opportunity to avail himself of high intensity programs which "may" ameliorate his risk to re-offend if he availed himself of such programs. This witness had testified that he did not feel "totally hopeless" about the likelihood of the offender's risk becoming manageable in community setting, and that "there's smidgen of chance." (Quoted at paras. 43 and 44 of the appellate judgment) This Court held that the trial judge had wrongly interpreted s. 753.1(1)(c) as meaning dangerous offender designation was available only if there was no possibility Mr. Goforth would respond to treatment. Richards J.A., writing for the Court, said this: 54 The line of analysis employed by Dr. Holden and the trial judge runs counter to substantial body of appellate level case law. Sections 753.1(1)(c) of the Code requires that, in order to warrant long-term offender designation rather than dangerous offender designation, there must be reasonable possibility of eventual control in the community of the risk of reoffending posed by the offender. The authorities indicate that "reasonable possibility", of necessity, must involve something more than hope or empty conjecture. In and of itself, the mere possibility that the offender might benefit from treatment is not sufficient to warrant conclusion that there is reasonable possibility of eventual control of the risk of reoffending. In other words, dangerous offender designation is not contingent on finding that the offender has absolutely no prospect of successful treatment while incarcerated. ... 65 The real question is whether it is reasonable to conclude Mr. Goforth will make that progress within the period of time comprehended by an appropriate determinate sentence. In my respectful view, the learned trial judge did not come to grips with this root issue. Rather, he proceeded on the basis that, in the absence of proof further programming would not succeed, the dangerous offender application should be rejected. This was misinterpretation of s. 753.1(1)(c) of the Code and an error of law. As this Court commented in Goforth, this view is consistent with substantial body of appellate level case law. The mere possibility that the offender might in the future benefit from treatment, to which he has been completely unamenable in the past, is not sufficient to warrant conclusion that there is reasonable possibility of eventual control of the risk of re-offending. In Pedden, the Court held, at para. 26, that "the Code does not require that the Crown prove absolute "intractability" (a word that does not appear in s. 753) i.e., that the offender will never be treatable in his lifetime" and added this comment, already quoted above: 30 In the case at bar, would emphasize the word "reasonable" as qualifier of "possibility" and the phrase "within the terms of the long-term offender provisions". Again, the Crown is not required to prove absolute intractability to meet its burden. If, as in this case, there is "possibility" of future treatment, but it is unlikely that such treatment or control can be effected within the parameters of the appropriate fixed sentence and supervisory conditions in the community, long-term offender designation is not appropriate. Similarly, in R. v. Allen, 2007 ONCA 421 (CanLII), 221 C.C.C. (3d) 261, the Ontario Court of Appeal held that the test pursuant to s. 753.1(1)(c) is "not some vague hope of managing the risk in the community but reasonable possibility of doing so." [116] Dr. Holden cannot estimate if or when J.R.S.’s risk to reoffend could be controlled in the community. At best, Dr. Holden has guarded hope for J.R.S.’s progress. That falls far short of the test imposed on the Crown to salsify the sentencing judge. [117] Dr. Wormith formed his opinion on the premise that dangerous offender designation is warranted solely for the worst offenders, who have an extremely high likelihood of offending in serious way. That is clearly wrong. As stated in Goforth, supra, qualitative assessment of the degree of violence is not required for finding of dangerous offender. [118] Dr. Wormith has also mis-apprehended the circumstances of the predicate offence. In examination-in-chief, Dr. Wormith referred to page 13 of his report, which stated that “there is no evidence that his domestic assault is escalating as his most serious domestic assault occurred in 2001 ...” He admitted that alcohol was involved in the predicate offence, but stated that, because this offence was not as horrific an offence in comparison to the previous one, that was cause for encouragement. [119] Dr. Wormith has no such cause for encouragement. The predicate offence is an horrific offence, as was the 2000 assault conviction that placed J.R.S. in prison in 2001. J.R.S. wrote to L.L.A. just prior to the hearing, “I could have killed you by accident.” [120] Dr. Wormith also supports the long-term offender status for J.R.S. because he had not been provided the full scope of treatment in the past. This premise is inaccurate. J.R.S. has been offered intensive family violence treatment, but he declined the opportunity. The substance abuse programming that J.R.S. took has been ineffective. He re-offends in serious manner, under the influence of alcohol, in short time after release from prison. [121] Dr. Wormith cannot predict how long J.R.S. will require to benefit from treatment. His opinion is based on hope that J.R.S. will take advantage of the programmes in CSC. As stated previously, an expression of hope is insufficient to satisfy the sentencing judge there is reasonable possibility of eventual control of J.R.S.’s risk to re-offend within the community. [122] The expert testimony of Deborah Farden must be considered. The factors outlined by Farden provide high lethality risk for femicide in J.R.S.’s present situation. L.L.A.’s safety cannot be ignored. As shown by the transcript of my decision on conviction dated September 17, 2008, J.R.S. has made threats against L.L.A. after she testified against him in 2005: [51] Interestingly, letters seized by Robert Legue as result of the Saskatoon Correctional Centre routine inspection of cells shows different side of the accused after L.L.A. did testify against him in Provincial Court. The letter (Exhibit P-12) dated June 13, 2005, written by the accused states: “I can’t believe that let my ex con me into her trap, that sneaky bitch. Hey, is there any (IP) girls in there? If my ex goes back in there will find way to have her tuned up ...” [52] Mr. Legue, the corrections supervisor, explained that “IP” refers to Indian Posse. Because the contents of the letter seemed to be threats against L.L.A., he notified the Crown about it. [123] J.R.S.’s long history of non-compliance with court orders, including his recent contact with L.L.A. to attempt to obstruct justice, provides no assurance that he can be controlled in the community. determinate sentence followed by long term supervision is not appropriate. The possibility that J.R.S.’s risk to re-offend can be eventually controlled in the community is so remote that the requirements of s. 753.1(1)(c) of the Criminal Code are not satisfied. [124] Thus, because the Crown has proved the essential elements of s. 753 of the Criminal Code beyond a reasonable doubt, J.R.S. is designated a dangerous offender. Because no lesser measure under s.753(4) will adequately protect the public, J.R.S. is sentenced to imprisonment in a penitentiary for an indeterminate period on the conviction pursuant to s. 267(b) of the Criminal Code. [125] As to the remaining eight charges (the six guilty pleas and two convictions), J.R.S. is sentenced to time served. [126] Although these following orders have been made by previous sentencing judges, to the extent they are necessary to be repeated, J.R.S. is prohibited from possessing firearms, crossbows, restricted weapons, ammunition, and explosives for life, in accordance with s.109 of the Criminal Code. Furthermore, as this is primary designated offence within s. 487.04, make an order in Form 5.03 authorizing the taking of samples of bodily substances required for the purpose of forensic DNA analysis. [127] It is hereby ordered that all reports, testimony, and transcript of the trial, including my decision and the ruling on the Charter application cited as 2008 SKQB 288 (CanLII), be forwarded to CSC, as required by s. 760 of the Criminal Code. J. A. R. ROTHERY
The accused was convicted of common assault, break and enter and commit assault and assault causing bodily harm and his former common law spouse was the complainant in each instance. The accused also entered guilty pleas to three charges stemming from breaches of no-contact conditions with the same complainant plus two charges of obstruction of justice by attempting to dissuade the same complainant from giving evidence. The RCMP had to execute a Feeney warrant to locate the complainant in the accused basement. The Crown sought an order declaring the accused a dangerous offender. HELD: The accused was designated a dangerous offender and was sentenced to imprisonment in a penitentiary for an indeterminate period on the conviction pursuant to s. 267(b) of the Criminal Code and received time served on the remaining eight charges. The evidence is conclusive that the offence for which the accused was convicted was a serious personal injury offence. The evidence was conclusive that the accused constitutes a threat to other persons because of his pattern of repetitive behaviour and persistent aggressive behaviour. The accused's First Nation would provide support for the accused but its support system is presently non-existent. The Court rejected the expert opinions recommending a long term offender order as being appropriate.