QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2012 SKQB 426 Date: 2012 10 22 Docket: Q.B.J. No. 15/2009 Judicial Centre: Saskatoon BETWEEN: HER MAJESTY THE QUEEN and ALBERT TREVOR PETERS Counsel: Kimberly R. Humphries for the Crown Nicholas J. Stooshinoff for the offender JUDGMENT POPESCUL C.J.Q.B. October 22, 2012 I. Introduction [1] Albert Trevor Peters (the “offender”) pled guilty to committing an aggravated assault on his common‑law partner contrary to s. 268 of the Criminal Code. The Crown has applied under Part XXIV of the Criminal Code to have him declared a dangerous offender. The offender is 52‑year‑old man with significant criminal record. The Crown contends that the offender fits the criteria for dangerous offenders and should be declared to be one and sentenced to an indeterminate sentence. [2] The offender, on the other hand, argues that he fits neither within the dangerous offender nor the long‑term offender category but should merely be sentenced to standard determinate sentence for the crime that he has committed. [3] There is no doubt that the offender meets the dangerous offender criteria set forth in the relevant Criminal Code provisions in force at the time. The real issue is whether there is reasonable possibility that the offender can eventually be controlled in the community so as to justify the imposition of long‑term offender designation rather than the more serious dangerous offender designation. If found to be long‑term offender, it is then necessary to impose an appropriate determinate sentence to go along with the long‑term supervision order. II. Preliminary Matters A. Jurisdiction [4] This Court has jurisdiction to entertain the dangerous offender application because it is both the court which entered the conviction against the offender and is superior court of criminal jurisdiction. [5] The application was made following the conviction of the offender and prior to him being sentenced. C. Notice of application [6] Notice of the Crown’s intention to seek dangerous offender designation, and the grounds upon which it was made was given to the offender and filed with the Court on September 9, 2011. [7] An amended notice of application was provided to the offender and filed with the Court on September 20, 2011. D. Assessment order [8] By order dated January 4, 2011, the offender was remanded for period not exceeding 60 days to be assessed by Dr. Roger Holden (“Dr. Holden”). Dr. Holden filed his report with the Court less than 15 days after the assessment period as required by s. 752.1(2) of the Criminal Code. E. Consent by the Attorney General [9] On August 31, 2011, the Acting Deputy Attorney General for Saskatchewan signed consent authorising the Crown to make dangerous offender application as contemplated by s. 754(1)(a) of the Criminal Code. III. Background of the offender [10] The offender is 52‑year‑old male (born […], 1960). He was raised in Vancouver, British Columbia, and has one sibling. His parents are both deceased. report generated in 1995 and referred to in Dr. Holden’s Forensic Assessment Report (the “Forensic Assessment Report”) indicates that the offender was born to stable “traditional Austrian family ... where no drugs, alcohol or violence were prevalent.” [11] The offender has serious health problems. As result of congenital heart disease, he required surgery as child to have heart valve repaired. In 2008 he had stroke. As consequence, he has left‑side paresthesia and requires the use of cane for stability and for walking lengthy distances. He has active hepatitis C. [12] The offender has completed Grade 12 and has taken some university classes. He appears to have been steadily employed during his adult life although there is some suggestion that he may have exaggerated his employment history. He has been employed as truck driver and worked for several years as an apprentice mechanic. The majority of his adult work life was spent as scaffolder and journeyman scaffolder. While working as scaffolder, he also supplemented his income by doing auto repairs and home renovations on the side. He is certainly employable. [13] The offender has “history of tumultuous relationships” (Forensic Assessment Report, page 10). He has been married more than once and has had number of “on again, off again” relationships. He has several children. He is not close to any of them. However, since the offender has been incarcerated, his daughter in British Columbia, who has significant health‑related issues, has expressed desire to have more contact with her father. [14] The offender has lengthy criminal record. Although his record, compared to many of the offenders who are sought by the Crown to be designated as dangerous offenders, is relatively modest, it nonetheless must be properly characterized as serious. The record reveals history of violence and an inability to abide by court orders. The record, as agreed to by the Crown and the defence, is as follows: 2000‑01‑19 NEW WESTMINSTER (1) ASSAULT SEC 266 CC (2) UTTERING THREATS SEC 264.1(1)(A) CC (1‑2) DAY PROBATION YRS ON EACH CHG 2000‑01‑20 NEW WESTMINSTER (1) OBSTRUCT PEACE OFFICER SEC 129(A) CC (2) FAIL TO COMPLY WITH RECOGNIZANCE SEC 145(3) CC (1‑2) DAY ON EACH CHG 2001‑05‑22 NEW WESTMINSTER BC FAIL TO COMPLY WITH PROBATION ORDER SEC 733.1 CC (2 CHGS) 21 DAYS PROBATION YR 2002‑02‑22 BREACH OF RECOGNIZANCE SEC 145(3) CC 2002‑03‑19 NEW WESTMINSTER BC FAIL TO COMPLY WITH PROBATION ORDER SEC 733.1 CC (1) ASSAULT SEC 266 CC (2) ASSAULT CBH SEC 267(B) CC (2) 15 MOS CONDITIONAL SENTENCE ORDER PROBATION 18 MOS MANDATORY PROHIBITION ORDER SEC 109 CC 2002‑08‑30 PORT COQUITLAM (1) SEXUAL ASSAULT (2) CRIMINAL HARASSMENT (3) UTTERING THREATS SEC 264.1(1)(A) CC (4) ASSAULT SEC 266 CC (1) 15 MOS (2‑4) MOS ON EACH CHG -PROBATION YRS DISCRETIONARY PROHIBITION ORDER SEC 110 CC FOR 10 YRS SURREY BC BREACH OF CONDITIONAL SENTENCE ORDER SUSPENDED 2004‑12‑08 POSSESSION OF PROHIBITED WEAPON SEC 117.01(1) MOS 18 MOS PROBATION 10 YRS PROHIBITION 2006‑04‑04 BREACH OF CONDITIONAL SENTENCE ORDER SEC 742.6(9)(D) CC (ENTRY DATED 2002‑03‑20) ORDER TERMINATED 2010‑09‑24 AGGRAVATED ASSAULT SEC 268 SENTENCE PENDING [15] The offender’s first recorded conviction was in 2000 when he was 40 years of age. His last conviction, the predicate offence, occurred on November 4, 2006, when the offender was 46 years of age. During that six‑year span, the offender has been convicted of committing 17 Criminal Code offences, including the predicate offence and two breaches of conditional sentences that were registered in 2004 and 2006. [16] There are two additional events that are also germane to the consideration of his criminal history. On January 1, 1995, the offender was charged with common assault on his wife contrary to s. 266 of the Criminal Code. That matter was apparently resolved by having the offender enter into s. 810 recognizance wherein he was required, for period of one year, to report to probation officer, have no contact with his wife and attend and accept drug, alcohol and anger management programming. [17] The other conduct, criminal in nature, but for which the offender was never charged, relates to somewhat bizarre set of circumstances involving the dumping of corpse on the banks of the Fraser River in British Columbia. previously ruled, in voir dire, that the Crown’s allegation of uncharged criminal conduct was admissible. See R. v. Peters, 2011 SKQB 419 (CanLII), 389 Sask.R. 14. found that the Crown had established beyond reasonable doubt that the offender had stored his former girlfriend’s corpse in his elderly mother’s British Columbia residence for several months before dumping it, wrapped in plastic and carpet, on the banks of the Fraser River in the early morning hours of October 4, 2005. [18] The Crown, as part of its case, provided details respecting number of the criminal convictions. summary of the most relevant circumstances are as follows: January 19, 2000 assault (s. 266 CC); and uttering threats (s. 264.1(1)(a) CC) one day plus two years probation on each count. The offender was convicted of assaulting E.J. contrary to s. 266 of the Criminal Code and to uttering threats to cause death or bodily harm to E.J. contrary to s. 264.1(1)(a) of the Criminal Code. brief reference in the Forensic Assessment Report simply states, “He also assaulted [E.J.], [female] renter in his parent’s home”. March 19, 2002 assault (s. 266 CC) 60 days. assault causing bodily harm (s. 267(b) CC) 15‑month conditional sentence order, plus three years probation. The offender committed two assaults upon female person, C.D., with whom he was living. On May 15, 2001, the offender, while under the influence of alcohol, grabbed an ashtray and hit C.D. on the left side of her head, causing cut and bruise. He was convicted of common assault and sentenced to 60 days in jail. On June 8, 2001, police and fire officials attended to C.D.’s residence as result of mattress fire. Upon arrival, the police found C.D. covered in bruises. C.D. also had an open sore, believed to be stab wound, on her left thigh. C.D. refused to provide the police with any information at the time but subsequently told police that the bruises resulted from “number of assaults” committed upon her by the offender and that the offender had stabbed her with steak knife. The offender was convicted of assault causing bodily harm and was sentenced to 15‑month conditional sentence order, followed by 18 months probation. Alcohol, once again, was contributing factor. The offender did not abide by the terms of his conditional sentence order, which was terminated when the offender was found to be in breach. August 30, 2002 sexual assault (s. 271 CC) 15 months plus three years probation. criminal harassment (s. 264 CC) two months plus three years probation. uttering threats (s. 264.1 CC) two months plus three years probation. assault causing bodily harm (s. 266 CC) two months plus three years probation. On August 30, 2002, the offender was sentenced for offences committed between June and June 7, 2000, that involved his then common‑law partner D.C. The sentencing judge characterized the time between June and June 7, 2000 as “reign of terror” by the offender against D.C. The victim was physically assaulted and received an injury to her chin and mouth. D.C. was also sexually assaulted in manner characterized by the sentencing judge as “brutal and repugnant”. The offender held his hand over D.C.’s mouth and nose so she could not breath. He attempted anal intercourse and then had vaginal intercourse with her, ignoring her pleas to stop. After the physical assault and the sexual assault had taken place, the offender attempted to intimidate the victim and threatened to shoot her. The offender was sentenced to 15 months in jail, after the sentencing judge took into account that the offender had spent considerable time on remand. November 4, 2006 aggravated assault (s. 268) the predicate offence. The circumstances of the predicate offence that precipitated the within dangerous offender application also involves female partner with whom the offender was intimately involved. On November 4, 2006, the offender was living in Radisson, Saskatchewan, with D.M. After consuming considerable amount of alcohol, the offender and D.M. began to argue. The offender became angry and began to hit and kick D.M. multiple times. She fell to the floor and lay in the fetal position while the offender repeatedly kicked her while wearing steel‑toed work boots. When the offender relented, D.M. went to her closet and began to pack some clothes. The offender then grabbed an axe and struck D.M. on the head and buttocks area several times. The assaults resulted in two deep cuts to D.M.’s left posterior thigh and left buttocks. D.M. also had lacerations on her head, cuts on her upper lip and bruising on her face and body. Incredibly, although D.M. was physically and psychologically scarred, her injuries were not life‑threatening. [19] As result of the incident on November 4, 2006, the offender was charged with attempting to murder D.M. and was arrested. On December 18, 2006, the offender elected to be tried by judge and jury and was released from custody after bail hearing on number of conditions, including that he not contact the victim, D.M. The preliminary inquiry was set for March 19, 2007. [20] On March 19, 2007, the offender failed to appear, and warrant for his arrest was issued. Further, it was alleged that the offender breached the non‑contact clause by contacting the victim D.M. The offender remained at large until he was arrested on March 24, 2009. He has been in custody since that time. [21] On July 20, 2009, the offender was committed to stand trial. The Crown preferred three‑count indictment charging the offender with attempting to murder D.M. (s. 239(b) of the Criminal Code), aggravated assault on D.M. (s. 268) and breaching the non‑contact provision of his recognizance by contacting D.M. (s. 145(3)). [22] On September 27, 2010, the offender re‑elected to be tried by court comprised of Queen’s Bench judge sitting without jury. The offender then pled guilty to the aggravated assault count, which is the predicate offence, and the Crown stayed the other two counts. [23] The Crown then launched this dangerous offender application. IV. Forensic Assessment Reports [24] The Court has had the benefit of two assessment reports, together with testimony of the authors of those reports. Dr. Roger Holden, Ph.D., R.D. Psych., R.Psych., B.C.F.E., consultant and clinical psychologist, prepared comprehensive 52‑page Forensic Assessment Report that was initiated following court order. Additionally, Dr. Terry Nicholaichuk, Ph.D., R.D. Psych., clinical and forensic psychologist, prepared “psychological assessment” at the request of the defence. [25] Both experts conclude that the offender should not be declared to be dangerous offender because his risk to reoffend could be reasonably managed by supervision in the community. Dr. Holden concludes that the offender “fits the criteria for designation of long‑term offender” (emphasis in original), while Dr. Nicholaichuk concludes that: period of supervision in the community is probably the best prospect for [the offender’s] successful reintegration. ... [T]he conditions can constitute very powerful supervision tool and should allow for reasonable level of protection for the public as the conditions of supervision can be quite stringent. A. Dr. Holden’s Forensic Assessment Report [26] Dr. Holden’s Forensic Assessment Report concludes that the offender is high risk to reoffend violently and sexually in the future but that there is reasonable possibility of the eventual control of that risk in the community. Some of the most pertinent conclusions reached by Dr. Holden are: ... Mr. Peters does have history of previous violence and on the basis of this variable, believe he is high risk to re‑offend violently in the future. [p. 29] ... Since [1995] ... Mr. Peters has accumulated several violence related convictions and conclude that his age has some bearing on his potential to commit violent crimes in the future. [p. 29] ... ... Mr. Peters has history of relationship instability and on the basis of this factor, believe that he is high risk to commit violent crimes in the future. [p. 30] ... ... Mr. Peters has chronic and untreated alcohol abuse problem at this time and on the basis of this factor, believe his potential to commit violent crimes in the future is high. [p. 32] ... ... Mr. Peters is suffering from personality disorder at this time and on this basis of this factor, believe that he is high risk to re‑offend violently in the future. [p. 35] ... ... Mr. Peters has incurred some serious supervision failure in the past and on the basis of this factor, believe that his risk for future violence is high. [p. 35] ... ... Mr. Peters has little insight into the aetiology of his violent offending behaviour. He tends to project responsibility for the behaviour onto others, in my opinion. He appears to be in denial regarding his alcohol abuse problem. On the basis of this factor believe that Mr. Peters is high risk to re‑offend violently in the future. [p. 36] .. Mr. Peters has significant negative attitudes, and on the basis of this factor, believe that he is high risk to re‑offend violently in the future. [p. 37] ... ... there is significant impulsivity in Mr. Peters’ past, and on the basis of this factor, believe he has high risk of behaving violently in the future. [p. 37] ... ... up to this time Mr. Peters has been entirely unresponsive to treatment and in considering this factor his potential for violence in the future is high. [p. 40] ... In reviewing Mr. Peters’ release plan, do not find it to be feasible, and on the basis of this factor, believe that he is high risk to re‑offend violently. [p. 41] ... ... Mr. Peters is likely to be exposed to destabilizers in the community, and on the basis of this factor, believe he is high risk to re‑offend violently in the future. [p. 42] ... ... Mr. Peters has not, up to this point, been at all compliant with remediation attempts and on the basis of this factor, believe he is high risk to re‑offend violently in the future. [p. 43] ... would predict that Mr. Peters will have multiple areas of distress in the future and on the basis of this factor, believe that he is high risk to re‑offend violently in the future. [p. 43] [27] At pages 44‑46 of his report, Dr. Holden asks, and answers, what he calls “The Five Basic Questions”, as follows: 1. What is the likelihood that the individual will engage in violence if no efforts are made to manage risk? have no doubt that unless measures are taken to manage Mr. Peters’ risk, he will continue to perpetrate acts of both physical and sexual violence. note that file information suggest that Mr. Peters has been considered high risk to re‑offend violently in the past. 2. What is the probable nature, frequency, and severity of any future violence? It is obviously speculative to try to predict the nature of any future violence perpetrated by Mr. Peters. On the basis of his past, he will perpetrate acts of violence and sexual violence against female victims. note that file information suggests that Mr. Peters has used knives, glass ashtrays, and an axe in addition to his fists and feet to perpetrate his assaults. It is again speculative to try and predict the frequency of such acts. He has amassed series of convictions over sixteen year period, so one might speculate that his frequency of such behaviour will be relatively frequent. Regarding the severity of such behaviour: one might speculate that he will continue to perpetrate acts of significant violence against his victims which will result in severe, physical injury to them. In considering his physical assaultiveness, his index offence, in my opinion, is considerable escalation of violence perpetrated against his victim in comparison to previous assault convictions. Of significant concern also, in my opinion, is Mr. Peters’ apparent total denial in interview that he inflicted the injuries that the victim received and instead suggested that she must have sustained the injuries by brushing against table or cutting herself with glass shelf. In doing so, in my opinion, Mr. Peters minimizes his culpability and projects responsibility for the injuries onto the victim herself. 3. Who are the likely victims of any future physical violence? As far as can tell, all of Mr. Peters’ victims have been females, primarily females with whom he has established an intimate relationship. Therefore, it seems logical to predict that victims of future violence perpetrated by Mr. Peters will be females, likely female partners. 4. What steps could be taken to manage this individual’s risk of future violence? Obviously, one way to manage Mr. Peters’ risk to commit violence in the community would be to incarcerate him. If he were to be incarcerated in federal institution, Mr. Peters would be, almost certainly offered programs regarding his violence and sexual violence, his substance abuse, and programs relating specifically to spousal assault. have no doubt that he should be encouraged to involve himself in such programming while in an institution and to continue such programming upon release. am not at all sanguine regarding Mr. Peters’ potential for success in such programming given his apparent denial of his culpability and lack of interest in most of the programming he has been ordered to attend in the past. However, it seems to me that he should be given the opportunity to more thoroughly investigate his functioning via such programming. 5. What circumstances might exacerbate the individual’s risk for violence? In my opinion, Mr. Peters is a high risk to re‑offend violently and sexually violently [sic] in the future and this risk will be mitigated only if he conscientiously applies himself to learning alternative ways of venting his frustration and anger. If he continues to deny his culpability and sabotage attendance in programming then his risk to continue to perpetrate crimes of violence in the community will continue to be high, in my opinion. He appears to be in denial regarding his potential to abuse alcohol and does not appear to have seriously addressed the role alcohol plays in his life and also, in his potential to commit violent crimes. Therefore, it is, in my opinion, an absolute necessity that he seriously addresses his apparent alcohol abuse problem and makes a commitment to sobriety for the remainder of his life. If he refuses to do so, in my opinion, his risk for committing acts of future violence is high. He appears to predate upon intimate partners for reasons which are not clear to me. However, there seems to be pattern of offending in this way, which needs serious attention, in my opinion. If Mr. Peters is unwilling or unable to find alternative ways of expressing frustration within intimate relationships, he either should not engage in such relationships in the future (which given his age is unlikely, in my opinion) or any such relationship should be closely monitored by supervisors if he is released into the community. If he does not learn more pro‑social ways of relating to intimate partners, his risk to continue to perpetrate acts of violence will continue to be high, in my opinion. [28] Finally, at page 46 of his report, Dr. Holden offers the conclusion that the offender should be found to be long‑term offender. The synopsis of his conclusion is as follows: In considering Section 752(a)(i) and 752(a)(ii) of the Criminal Code of Canada, it seems to me that Mr. Peters certainly has been convicted of behaviour, which is likely to endanger the life or safety of another person, and also has inflicted severe psychological damage on that person. In considering Section 753(a)(iii), have no doubt that Mr. Peters has been convicted of behaviour that is of such brutal nature as to compel the conclusion that his behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint. In considering Section 753.1(1)(b), believe there is substantial risk that Mr. Peters will re‑offend violently. In considering Section 753.1(1)(c), while am not optimistic regarding Mr. Peters [sic] treatability, given his background, he did perform well in the original Alternatives to Violence Program he took in the middle 1990's. He does not appear to have every [sic] taken the kinds of programming available via the Federal Penitentiary System and therefore, cannot conclude that there is no possibility of eventual control of his risk to re‑offend in the community because he has not taken the kinds of programs which may teach him how to understand and control his potential for physical and sexual violence. Therefore, believe that Mr. Peters does not fit the criteria for the designation of dangerous offender, as understand it, but certainly fits the criteria for designation of long‑term offender. [Emphasis in original] B. Dr. Nicholaichuk’s Psychological Assessment [29] Dr. Nicholaichuk’s Psychological Assessment report (the “Psychological Assessment”) is more or less consistent with Dr. Holden’s Forensic Assessment Report, although there are areas where the two experts disagree. Most significantly, Dr. Nicholaichuk disagrees with Dr. Holden on whether the offender is high risk to commit sexual offence and also whether the offender has presented reasonable release plan. [30] Dr. Nicholaichuk disputes Dr. Holden’s conclusion that the offender is at high risk to commit sexual offence because the offender was only convicted of one previous sexual offence and that was over decade ago in 2002. In light of the single, dated conviction, the medical problems that cause degree of infirmity and that he is now in his fifties, Dr. Nicholaichuk disputes Dr. Holden’s finding on this point. However, for the purpose of this proceeding, it may be distinction without difference. At page 18 of his Psychological Assessment, Dr. Nicholaichuk concedes that there is “no question that [the offender] would score as high risk, high need offender on most scales used for this purpose.” (However, at page 17 of that report, Dr. Nicholaichuk opines that the risk should be reduced to the “medium to high range” to take into account age and ill health.) Accordingly, while both experts conclude that the offender is likely to reoffend violently, they disagree on whether he is high risk to reoffend in sexual way. [31] Dr. Nicholaichuk also points out that the offender is at an age where his risk to reoffend can be expected to decline rapidly and that, therefore, his risk assessment should be downgraded. Although it is well know that, generally speaking, the risk of committing new offences significantly declines as men age, the offender has bucked the trend by significantly adding to his criminal record while in his forties. [32] The two experts also disagree on the viability of the offender’s discharge plan. Dr. Nicholaichuk was prepared to be quite positive about the offender’s plan to take up residence in small Saskatchewan town, repair house that he owns there and operate salvage business. Conversely, Dr. Holden determined that the release plan of the offender was not “feasible”. The offender suggested to Dr. Holden that he would move to Calgary to live with friend who was recovering from brain injury and then move to Vancouver to live with his daughter, who has special needs. It is noteworthy that the release plan the offender related to Dr. Holden was considerably different than that related to Dr. Nicholaichuk. [33] The only real conclusion that can be drawn is that the offender has changed his release plan for some reason. Whether it was to attempt to construct release plan that was more palatable to the authorities without any real intention of following through, or whether the offender legitimately re‑thought his plan, remains to be seen. [34] In the end result, Dr. Nicholaichuk’s assessment is not that markedly different from that of Dr. Holden. Admittedly, Dr. Nicholaichuk’s assessment is more favourable to the offender than that of Dr. Holden. Dr. Nicholaichuk emphasized the offender’s age (older offenders are less likely to reoffend), that the offender had never served time in federal penitentiary (he has not been exposed to federal programming) and that the offender has been well behaved since incarcerated and while at large between 2007 and 2009. Nonetheless, in the end result, Dr. Nicholaichuk concludes that the offender would benefit from close supervision in the community. V. The general legislative scheme A. Predicate offence committed prior to July 2, 2008 [35] The predicate offence occurred on November 4, 2006. Significant amendments to the Criminal Code respecting the dangerous offender provisions came into force on July 2, 2008. Both the Crown and defence agree that the 2008 amendments to the dangerous offender legislation set forth in the Tackling Violent Crime Act, S.C. 2008, c. 6, do not apply to these proceedings because the offence date predates the amendments. agree. logical application of s. 11(i) of the Canadian Charter of Rights and Freedoms requires that the offender be entitled to the lesser punishment if the punishment has been varied between the date of the commission of the offence and the date of sentencing. The 2008 amendments clearly make it easier for the Crown to obtain dangerous offender designation and, therefore, the offender is entitled to the lower threshold set forth in the pre‑amended legislation. Accordingly, the “old” legislation in force at the time the offence was committed will be applied. B. General legislative scheme [36] In R. v. Daniels, 2008 SKQB 349 (CanLII), 321 Sask.R. 40, summarized the general pre‑amendment legislative scheme as follows: [34] Generally, dangerous offender or long‑term offender applications follow the conviction of serious personal injury offence (s. 753(2)). [35] If the court is satisfied, upon application by the prosecutor, that the offender might be found to be dangerous or long‑term offender, it may order an expert assessment report (s. 752.1). [36] Once the assessment is filed, the Crown may apply to have the offender declared to be dangerous offender (s. 753(1)), or long‑term offender (s. 753.1). The Provincial Attorney General must consent to the application (s. 754(1)(a)). [37] The court thereafter is required to hear and determine the application without jury (s. 754(2)). [38] The court may find the offender to be dangerous offender if it is satisfied that: (a) the offence for which the offender has been convicted is serious personal injury offence (as defined by s. 752); and (b) the offender constitutes threat to the life, safety or physical or mental well being of other persons on the basis of evidence establishing the offence for which he was convicted forms part of: (i) pattern of repetitive behaviour showing failure to restrain his or her behaviour and likelihood of causing death, injury or inflicting severe psychological damage on other persons through failure to restrain his behaviour (s. 753(1)(a)(i)); or (ii) pattern of persistent aggressive behaviour showing substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other people of his behaviour (s. 753(1)(a)(ii)); or (iii) behaviour that is of such brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint (s. 753(1)(a)(iii)). [39] In the event that the court is satisfied that the dangerous offender criteria have been met, the court must nonetheless consider the appropriateness of declaring the offender long‑term offender. If the sentencing judge is satisfied that the long‑term offender sentencing options are sufficient to reduce the threat to life, safety or physical or mental well being to an acceptable level, the sentencing judge ought not declare the offender dangerous offender, notwithstanding that the dangerous offender criteria set forth in the Criminal Code have been met. See R. v. Johnson, [2003] S.C.R. 357, 2003 SCC 46 (CanLII), 13 C.R. (6th) 205. In such case the court is obliged to impose either determinate sentence or determinative period of detention followed by long‑term supervision order. If the sentencing judge determines that determinate sentence or long‑term supervision order is not appropriate, it shall impose sentence of detention in penitentiary for an indeterminate period (s. 753(4)). Issues [37] The issues to be decided in this case are: A. Is the predicate offence (the triggering offence) a serious personal injury offence as defined by s. 752 of the Criminal Code? B. Is the offender a threat of the kind contemplated by s. 753 of the Criminal Code and, thus, a danger to society? C. If so, should the Court exercise its residual discretion and impose a fixed‑term sentence or resort to the long‑term offender provisions, even though the statutory criteria for declaring Mr. Peters a dangerous offender have been met? D. If a long‑term offender designation is warranted, what determinate sentence and long‑term supervision order should be imposed? Analysis A. Is the predicate offence (the triggering offence) a serious personal injury offence as defined by s. 752 of the Criminal Code? [38] One of the criterion the Crown must establish in order to have the offender declared dangerous offender is that the predicate (triggering) offence is “serious personal injury offence” within the meaning of s. 752 of the Criminal Code. That section states in part: 752. In this Part, ... “serious personal injury offence” means (a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving (i) the use or attempted use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person, and for which the offender may be sentenced to imprisonment for ten years or more, or (b) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with weapon, threats to third party or causing bodily harm) or 273 (aggravated sexual assault). [39] The offender has pled guilty to aggravated assault. The offence of aggravated assault is clearly a “serious personal injury offence” in that it is an indictable offence and involves the use of violence against another person in which the offender may be sentenced to imprisonment for more than 10 years. [40] The Crown has proven that the offender committed “serious personal injury offence” on November 4, 2006, within the meaning of s. 752(a) and, accordingly, this threshold requirement has been met. B. Is the offender a threat of the kind contemplated by s. 753 of the Criminal Code and, thus, a danger to society? [41] The next step in the process is to determine whether the offender constitutes threat to the life, safety or physical or mental well‑being of other persons on the basis of evidence establishing specific kinds of behaviour outlined in the Criminal Code. The pertinent parts of s. 753, in force at the relevant time, read: 753. (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find the offender to be 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, or (iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; ... (4) If the court finds an offender to be dangerous offender, it shall impose sentence of detention in penitentiary for an indeterminate period. [42] The elements of ss. 753(1)(a)(i) and (ii) can be categorized and compartmentalized as follows: Section 753(1)(a)(i): (a) pattern of repetitive behaviour; (b) the predicate offence must form part of that pattern; (c) the pattern must show failure by the offender to restrain his behaviour in the past; and (d) the pattern must show likelihood of death, injury or severe psychological damage to other persons through failure to restrain his behaviour in the future. Section 753(1)(a)(ii): (a) pattern of persistent aggressive behaviour; (b) the predicate offence must form part of the pattern; and (c) the pattern must show substantial degree of indifference by the offender respecting the reasonably foreseeable consequences of that behaviour. See R. v. Neve, 1999 ABCA 206 (CanLII), 237 A.R. 201, [1999] 11 W.W.R. 649, and R. v. Kakakaway, 2003 SKQB 205 (CanLII), 58 W.C.B. (2d) 310, [2003] S.J. No. 362 (QL). [43] find that s. 753(1)(a)(iii) does not apply because the actions of the offender do not fit the criteria of being “brutal”. Although the actions of the offender against the victim were most definitely reprehensible and criminal, they were not brutal in the sense that the actions were so heinous, barbarous or inhumane as to compel the conclusion that his future behaviour is unlikely to be inhibited by normal standards of behavioural restraint. [44] do not accept Dr. Holden’s conclusion that the offender is at high risk to offend sexually in the future. While the possibility exists, the evidence falls short of establishing likelihood given the fact that there was only one sexual incident, the offender’s age and his health issues. [45] Further, find that the evidence that the offender callously disposed of corpse on riverbank does not form part of the pattern of the offender’s violent aggressive behaviour. Such an act, while despicable and highly disrespectful, is not part of his aggressive violent behaviour, of which the predicate offence is part. That act, while instructive as to the type of person the Court has before it, is not part of the violent or aggressive behaviour. Accordingly, do not rely upon that act as being conduct that falls within the ss. 753(1)(a)(i) and (ii) definitions. [46] Nonetheless, I find that the offender clearly fits within the definition set forth in ss. 753(1)(a)(i) and (ii). The offender has demonstrated a repetitive and persistent pattern of aggressive behaviour culminating in serious assaults on women. The predicate offence is part of that pattern, and the pattern shows complete failure by the offender to restrain his behaviour. The offender has demonstrated, through his actions, that he has little ability to control his violent impulses, and his behaviour shows substantial degree of indifference respecting the reasonably foreseeable consequences of that behaviour. He lacks insight, has not been compliant with remediation attempts, has an anti‑social personality disorder and has serious alcohol issues that remain untreated. accept Dr. Holden’s conclusion that the offender is high risk to reoffend violently in the future, and that therefore there is likelihood that he will cause death, injury or severe psychological damage to other persons through his failure to restrain his behaviour in the future. [47] Accordingly, have no difficulty in concluding that the Crown has also proven the criteria for designating person to be dangerous offender as set forth in ss. 753(1)(a)(i) and (ii) on the basis of the violent behaviour alleged and established. C. If so, should the Court exercise its residual discretion and impose a fixed‑term sentence or resort to the long‑term offender provisions, even though the statutory criteria for declaring Mr. Peters a dangerous offender have been met? [48] The Supreme Court of Canada in R. v. Johnson, 2003 SCC 46 (CanLII), [2003] S.C.R. 357, confirmed that there is residual discretion under s. 753(1) not to designate person dangerous offender even though the statutory criteria have been met. Iacobucci and Arbour JJ. wrote: 44 As we have discussed, sentencing judge should declare the offender dangerous and impose an indeterminate period of detention if, and only if, an indeterminate sentence is the least restrictive means by which to reduce the public threat posed by the offender to an acceptable level. The introduction of the long‑term offender provisions expands the range of sentencing options available to sentencing judge who is satisfied that the dangerous offender criteria have been met. Under the current regime, sentencing judge is no longer faced with the stark choice between an indeterminate sentence and determinate sentence. Rather, sentencing judge may consider the additional possibility that determinate sentence followed by period of supervision in the community might adequately protect the public. The result is that some offenders who may have been declared dangerous under the former provisions could benefit from the long‑term offender designation available under the current provisions. 45 It thus follows that the Court of Appeal was correct to conclude that the sentencing judges were required to consider the applicability of the long‑term offender provisions. If the respondent satisfies the long-term offender criteria and there is reasonable possibility that the harm could be reduced to an acceptable level under the long‑term offender provisions the proper sentence, under the current regime, is not an indeterminate period of detention, but, rather, determinate period of detention followed by long-term supervision order. If this is the case, s. 11(i) of the Charter dictates that the respondent is entitled to be sentenced to period of determinate detention followed by long-term supervision order. [49] The long‑term offender criteria is set forth in s. 753.1(1) of the Criminal Code as follows: 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. [50] Accordingly, having found the offender to have met the dangerous offender criteria, I must, nonetheless, consider the application of the long‑term offender provisions and utilize that option if the offender meets the long‑term offender criteria and there is a reasonable possibility that the offender’s risk to reoffend could be acceptably managed within the meaning of s. 753.1(1)(c). [51] In R. v. Daniels, 2011 SKCA 67 (CanLII), [2011] W.W.R. 605, the Saskatchewan Court of Appeal set aside dangerous offender designation and declared Mr. Daniels long‑term offender. In Daniels, the offender: [2] ... concedes that he constitutes threat to the life, safety or physical or mental well‑being of other persons, within the meaning of s. 753(1)(a)(i) and (ii) of the Criminal Code, and that without intervention he will remain high‑risk offender. While Mr. Daniels admits he meets the criteria under those provisions, he does not agree that he is dangerous offender, in light of the long‑term option. ... In accepting Mr. Daniel’s position, Jackson J.A. refers to R. v. Lyons, 1987 CanLII 25 (SCC), [1987] S.C.R. 309, 44 D.L.R. (4th) 193, where the Supreme Court of Canada stated that the dangerous offender legislation applies narrowly to offenders who are highly dangerous and, at page 347, stated: ... the legislation narrowly defines class of offenders with respect to whom it may properly be invoked, and prescribes quite specifically the conditions under which an offender may be designated as dangerous. ... [T]hese criteria ... are anything but arbitrary in relation to the objectives sought to be attained; they are clearly designed to segregate small group of highly dangerous criminals posing threats to the physical or mental well‑being of their victims. [52] Jackson J.A. also referred to the comments of Cameron J.A., speaking for the Court in R. v. Lemaigre, 2004 SKCA 125 (CanLII), 189 C.C.C. (3d) 492, where he stated that sentencing judges must “bear in mind that Parliament intended the sentence reserved for dangerous offenders to apply only to that very small group of offenders whose personal characteristics and particular circumstances militate strenuously in favour of indefinite preventive detention.” (See paragraph 15.) [53] In Daniels, the Court of Appeal majority decisions concluded that the dangerous offender designation had been expanded beyond what was intended and narrowed the dangerous offender net that catches repeat offenders by declaring Mr. Daniels to be long‑term offender, rather than dangerous offencer. The majority concluded that Mr. Daniels was not one “of the small group of criminals” targeted by Parliament to be dangerous offender. [54] am mindful that my task is to consider the particular offender before the Court and not be unduly distracted by other decisions relating to other offenders. Each case is unique. As stated by Jackson J.A. in Daniels at paragraph 19: ... The determination of whether long‑term offender designation is merited is so fact‑specific as to render direct case‑by‑case comparison of little value. However, it was acknowledged by Jackson J.A. in Daniels that prior case law can be used to serve as check on one’s result to the extent that it can confirm whether an offender is safely within the realm of persons who should receive an indeterminate sentence. In each case, the focus must remain on the offender’s own record and personal characteristics and on the availability of treatment and rehabilitation programs for that particular offender. [55] Looking at the prior case law, including Daniels and the numerous cases referred to by Jackson J.A. in paragraphs 40 and 41 of her judgment, which include R. v. Redwood, 2009 SKCA 113 (CanLII), 337 Sask.R. 148; R. v. Watech, 2009 SKCA 52 (CanLII), 331 Sask.R. 11, aff’g 2006 SKQB 503 (CanLII), 288 Sask.R. 1; R. v. Moosomin, 2008 SKCA 169 (CanLII), [2009] W.W.R. 608, 239 C.C.C. (3d) 362; R. v. Goforth, 2007 SKCA 144 (CanLII), 302 Sask.R. 265; R. v. Otto, 2006 SKCA 52 (CanLII), 279 Sask.R. 182; R. v. R.H.L., 2005 SKPC (CanLII), [2005] S.J. No. 70 (QL); R. v. J.L.A.G., 2004 SKCA 126 (CanLII), [2005] W.W.R. 20, 189 C.C.C. (3d) 512; R. v. K.R.S., 2004 SKCA 127 (CanLII), [2005] W.W.R. 82; R. v. Lemaigre, supra; and R. v. Weasel, 2003 SKCA 131 (CanLII), [2004] W.W.R. 59, 181 C.C.C. (3d) 358, find that the totality of the circumstances of this case falls far short of the point where the offender should be placed within the dangerous offender category, given the availability of the long‑term offender option. [56] Based upon the jurisprudence in this jurisdiction, the offender’s situation is nowhere near that of what is required to justify conclusion that the public could not adequately be protected by the imposition of lengthy determinate sentence followed by long‑term supervision order. In Daniels, for example, an offender who was continually involved in the criminal justice system for over 25 years, amassed criminal record comprised of 67 convictions and who spent the vast majority of his adult life incarcerated and taking programs, was found by the majority of the appellate court to not qualify for dangerous offender status because he did not fit within the profile reserved for “small group of highly dangerous offenders”. The majority of the appellate court concluded that there was “a reasonable possibility of eventual control of the risk in the community”, as contemplated by s. 753.1(1)(c). [57] The offender has never been sentenced to periods of incarceration which resulted in him being placed in a federal penitentiary and thus, has not been offered the kind of programming available via the federal penitentiary system. cannot conclude that there is no reasonable possibility of the eventual control of his risk to reoffend in the community when he has not taken the kinds of programs which may teach him how to understand his problems so as to reduce the potential for physical violence and substance abuse. also accept that the offender’s age and ill health will make it less likely that he will reoffend and that his record, albeit serious, does indicate that he is capable of living life without criminal convictions. The offender has not been problematic inmate, which does demonstrate that he is capable of living within the rules. Furthermore, accept the opinions of the two experts that the risk can be reasonably managed by the imposition of conditional sentence which has significant personal deterrence effect and could serve as the impetus to lead law‑abiding lifestyle. The evidence before me, including that of the two expert witnesses is that there is real likelihood that the offender will eventually be controllable in the community by the imposition of long‑term supervision order. The pattern that have found to exist is not substantially or pathologically intractable. Accordingly, it is appropriate to decline to find the offender to be dangerous offender. In all of the circumstances conclude that the public will be adequately protected from the offender by the imposition of determinate sentence followed by lengthy period of supervision in the community. In the end result, find that the offender falls within the long‑term offender criteria set forth in s. 753.1(1) and that the risk he poses can be reduced to an acceptable level under the long‑term offender provisions. D. If a long‑term offender designation is warranted, what determinate sentence and long‑term supervision order should be imposed? [58] Section 753.1(3) of the Criminal Code states: (3) Subject to subsection (3.1), (4) and (5), if the court finds an offender to be long‑term offender, it shall (a) impose sentence for the offence for which the offender has been convicted, which sentence must be minimum punishment of imprisonment for term of two years; and (b) order that the offender to be supervised in the community, for period not exceeding ten years, in accordance with section 753.2 and the Corrections and Conditional Release Act. [59] Both the Crown and defence set forth their positions should the offender be found to be long‑term offender. The Crown submits that the offender should be sentenced to determinate period of incarceration of seven years followed by the maximum ten‑year long‑term supervision order. [60] The defence contends that the period of incarceration should be six years and that the long‑term supervision order should be limited to seven years. [61] Both Crown and defence agree that the offender should be credited for time spent on remand, on one‑for‑one basis. (1) What is the appropriate sentence to be imposed upon the offender for the aggravated assault charge? [62] The fundamental concept of sentencing is set forth in s. 718.1 of the Criminal Code, which reads: 718.1 sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [63] The other principles of sentencing stated in s. 718 and s. 718.2 must also be applied: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. 718.2 court that imposes sentence shall also take into consideration the following principles: (a) sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused position of trust or authority in relation to the victim, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with criminal organization, or (v) evidence that the offence was terrorism offence shall be deemed to be aggravating circumstances; (b) sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (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. [64] The offence of aggravated assault is serious one. This is reflected by the fact that Parliament has set the maximum term of imprisonment at 14 years. However, the offence of aggravated assault has many degrees of moral culpability, which results in large range of sentences for this offence that can vary anywhere from suspended sentence to 14 years in federal penitentiary. [65] One of the principles that must apply is that sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. The Crown relies upon the following decisions to support its request for seven‑year sentence: R. v. L.M., 2008 SCC 31 (CanLII), [2008] S.C.R. 163; R. v. Moosomin, 2008 SKCA 169 (CanLII), 239 C.C.C. (3d) 362; R. v. Ochuschayoo, 2004 SKCA 16 (CanLII), 241 Sask.R. 284; R. v. Weasel, supra; R. v. Keepness, 2011 SKQB 293 (CanLII), 379 Sask.R. 68; R. v. Jiang, 2011 ABQB 182 (CanLII), 518 A.R. 76; R. v. Desjarlais, 2008 ABQB 365 (CanLII), [2008] A.J. No. 721 (QL); R. v. Furi, [2006] S.J. No. 26 (QL) (Q.B.); and R. v. Lemaigre, 2005 SKQB 238 (CanLII), [2005] S.J. No. 358 (QL). [66] The defence submits the following case authorities to substantiate its request for six‑year sentence: R. v. Keepness, 2010 SKCA 69 (CanLII), [2010] 10 W.W.R. 13; R. v. Sayazie, 2010 SKCA 14 (CanLII), 346 Sask.R. 147; R. v. Keshane, 2005 SKCA 18 (CanLII), 257 Sask.R. 161; R. v. Dufault (1995), 1995 CanLII 3915 (SK CA), 128 Sask.R. 235, [1995] S.J. No. 110 (QL) (C.A.); and R. v. Key, 2010 SKQB 95 (CanLII), 351 Sask.R. 211. [67] find that the six‑ to seven‑year range submitted by counsel is, indeed, the appropriate range given the case authority in this jurisdiction, the facts of this case and the circumstances of the offender. [68] Given all of the circumstances and all of the principles of sentencing that I must apply, I conclude that a seven‑year sentence is a fit and proper sentence for the determinate portion of the sentence. gravitate to the higher end of the sentence recommendations because of the existence of so many aggravating factors. The offender, in drunken rage, launched an unprovoked assault on his common‑law partner. He punched and kicked her and then, while in vulnerable position on the floor, struck her several times with an axe. The degree of moral culpability is high. [69] The fact that the victim was common‑law partner is statutory aggravating factor as stipulated by s. 718.2(a)(ii). This circumstance, compounded by the offender’s record of spousal violence on other female partners, makes the situation more serious. The Saskatchewan Court of Appeal in R. v. Ochuschayoo, supra, reiterated that domestic violence is serious matter and must be so recognized, and referred to the following passage with approval in the headnote of R. v. Brown (1992), 1992 ABCA 132 (CanLII), 73 C.C.C. (3d) 242, 125 A.R. 150 (Alta. C.A.): Domestic violence is profound problem and when cases of beatings of wife by husband result in prosecution and conviction, then the courts have an opportunity, by their sentencing policy, to denounce such offences in clear terms and attempt to deter its recurrence by the accused and by other men. The starting-point in sentencing in such cases would be to determine what would be fit sentence if the man had assaulted woman on the street or in bar. The court must then examine circumstances which are peculiar because of the relationship. When man assaults his wife or other female partner, his violence toward her constitutes breach of position of trust and is an aggravating factor. Such an assault constitutes an abuse of power and control. The vulnerability of such women is increased by the financial and emotional situation in which they find themselves, which makes it difficult for them to escape. The paramount considerations in imposing sentence must be general deterrence and denunciation. Rehabilitation and individual deterrence are of secondary importance. In imposing sentence, the court must consider whether the assault is relatively minor in nature, is an isolated incident, and whether there are circumstances which make it desirable that the sentence not be such as to be counter-productive to the possibility that the family relationship will be preserved. However, with respect to this last point, the desire of the victim that the accused be returned to her and that she not be further victimized by being deprived of his income should not readily prevail over the general sentencing policy that requires imprisonment of man not only as an instrument of deterrence of other persons, but to break the cycle of violence in the accused’s home. [70] It is also troubling, and an aggravating factor, that the offender has little or no remorse for what he has done. [71] Given all of the circumstances, find that fit and appropriate determinate sentence is seven years in prison. (2) What reduction in sentence should be allowed to take into account the time the offender has spent on remand? [72] The offender was arrested shortly after the commission of the offence. The precise date is not clear from the record. However, by November 7, 2006, the offender appeared in Provincial Court, in custody, and was not released until December 18, 2006, period of 41 days. As mentioned previously, the offender breached his recognizance by failing to appear on March 18, 2007, for his preliminary inquiry. [73] The offender remained unlawfully at large until he was arrested on March 24, 2009. He has been on remand since that date, period of 1,309 days (three years six months 29 days). Adding in the original remand time of 41 days increases the total time spent on remand to 1,350 days, which is approximately three years eight months. Both the Crown and defence agree that the offender should be given credit for the time he has spent on remand on one‑for‑one basis. [74] The Criminal Code directs that sentence commences when it is imposed and that the Court may take into account pre‑sentence incarceration. The relevant version of s. 719(3) reads: 719 (3) In determining the sentence to be imposed on person convicted of an offence, court may take into account any time spent in custody by the person as result of the offence. That subsection was amended by adding the phrase “... but the court shall limit any credit for that time to maximum of one day for each day spent in custody.” However, the amendment has no application here because it applies only to persons charged after February 22, 2010, the day the amendment came into force. [75] Section 719(3) is permissive, rather than mandatory, although it is generally recognized that credit for pre‑sentence detention should be given unless there is some sound reason for not doing so. See R. v. Wust, 2000 SCC 18 (CanLII), [2000] S.C.R. 455; and R. v. Mills, 1999 BCCA 159 (CanLII), 133 C.C.C. (3d) 451. I am prepared to go along with the submission of counsel and provide a one‑for‑one credit for the time that the offender has spent in pre‑sentence custody. Giving more than one‑for‑one credit would have the effect of releasing the offender to the public without him benefiting from completing the significant rehabilitative interventions that he so badly needs. [76] The offender has spent approximately three years four months in pre‑sentence custody. Giving the offender three years eight months credit towards his seven‑year sentence results in a further period of incarceration of three years four months. Accordingly, the offender is sentenced to an additional three years four months in penitentiary. (3) What is the appropriate length of the long‑term supervision order? [77] Where an offender has been designated long‑term offender, the Court is obligated to impose sentence for the offence for which the offender has been convicted and order that the offender be subject to long‑term supervision order “for period that does not exceed 10 years.” [78] The Crown has recommended the maximum period of supervision, while the defence submits that seven‑year supervision order would be sufficient to accomplish the sentencing goals. [79] The court‑appointed assessor, Dr. Holden, points out that one of the biggest obstacles to the offender’s rehabilitation is his failure or refusal to address some of the underlying problems that contribute to his criminal behaviour. At page 46 of the Forensic Assessment Report, Dr. Holden states: He appears to be in denial regarding his potential to abuse alcohol and does not appear to have seriously addressed the role alcohol plays in his life and also, in his potential to commit violent crimes. Therefore, it is, in my opinion, an absolute necessity that he seriously addresses his apparent alcohol abuse problem and makes commitment to sobriety for the remainder of his life. If he refuses to do so, in my opinion, his risk for committing acts of future violence is high. [80] In my view, lengthy long‑term supervision order is appropriate. The longer that the offender can be closely monitored in the community, the better. It is essential that he learn alternative ways to express frustration and seriously address alcohol issues. see no rational basis to “reduce” the length of the supervision from the maximum of ten years, requested by the Crown, to the seven years submitted by the defence. In addition to protection of the public, the supervision order is in place for the well‑being of the offender. The interests of all concerned require the maximum supervision available under the law. [81] Accordingly, order that the offender be supervised in the community for period of ten years following his release in accordance with s. 753.2 of the Criminal Code and the Corrections and Conditional Release Act, S.C. 1992, c. 20. Conclusion [82] I find the offender Albert Trevor Peters to be a long­‑term offender. The appropriate determinate sentence for the charge of aggravated assault in these circumstances is seven years in prison. He ought to get credit for time spent on remand of three years eight months, which results in a sentence of three years four months in prison. [83] The period of the long‑term supervision order is set at ten years. [84] Because the predicate offence is an offence in which violence against person was used, threatened or attempted, and for which person may be sentenced to imprisonment for ten years or more, s. 109 of the Criminal Code, pertaining to weapons prohibitions, has application. Accordingly, the offender is prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substances for life. [85] The predicate offence of aggravated assault, for which the offender was convicted, is primary designated offence within the meaning of s. 487.04 of the Criminal Code. am satisfied that an order allowing the taking of bodily substances for DNA analysis would not be grossly disproportionate to the public interest, protection of society and the proper administration of justice. Accordingly, such an order in Form 5.03 shall issue. [86] Mr. Peters has been in custody since March 2009 and does not have any obvious means to pay any victim surcharge. Accordingly, the victim surcharge is waived pursuant to s. 737(5) of the Criminal Code. [87] Section 760 of the Criminal Code provides: 760. Where court finds an offender to be dangerous offender or long‑term offender, the court shall order that copy of all reports and testimony given by psychiatrists, psychologists, criminologists and other experts and any observations of the court with respect to the reasons for the finding, together with transcript of the trial of the offender, be forwarded to the Correctional Service of Canada for information. [88] Accordingly, order that my reasons for sentencing, together with all exhibits, assessments, required transcripts and documents be forwarded to the Correctional Service of Canada. “M.D. Popescul” C.J.Q.B. M.D. Popescul
The Crown applied under Part XXIV of the Criminal Code to have the accused declared a dangerous offender after he pled guilty to committing an aggravated assault on his common-law spouse contrary to s. 268 of the Code. The application is based on the Code provisions in effect before the danger offender legislation set forth in The Tackling Violent Crime Act was passed. The accused is 52 years old and in poor health. He has a significant criminal record thatreveals a history of violence and an inability to abide by court orders. The offences occurred between the time he was 40 and ended in 2006 with his last conviction, the predicate offence. Two psychologists prepared psychological assessments both of which concluded that the offender should not be declared a dangerous offender because his risk to re-offend could be reasonably managed by supervision in the community. The issues before the Court were: 1) whether the predicate offence is a serious personal injury offence as defined by s. 752 of the Code; 2) whether the offender is a threat of the kind contemplated by s. 753 of the Code and thus a danger to society; 3) if so, whether the Court should exercise its residual discretion an impose a fixed-term sentence or resort to long-term offender provisions, even though the statutory criteria for declaring the accused a dangerous offender have been met; and if a long-term offender designation is warranted, what determinate sentence and long-term supervision order should be imposed? HELD: 1) The Court held that the aggravated assault committed by the offender was a serious personal injury offence because it was an indictable offence involving the use of violence against his spouse. 2) The Court found that the Crown had proven the criteria required that the offender clearly fits within the definition set forth in ss. 753(1)(a)(i) and (ii), in that this offender had shown a repetitive and persistent pattern of aggressive behavior, especially against women. 3) The Court decided to exercise its residual discretion not to designate the offender as a dangerous offender and found that the he met the long-term offender criteria and that his risk to re-offend could be managed within the meaning of s. 753.1(1)(c). The offender has never been imprisoned in a penitentiary and thus had never had the benefit of programming offered in that system. The appropriate sentence should be 7 years. As the offender has spent approximately 3 years and 4 months in pre-sentence custody, the Court gave him credit in that amount on a one-to-one basis. The Court ordered that the appropriate length of time for a long term supervision order is the maximum of 10 years since the offender needs to learn alternative ways to express his frustration and address his issues with alcohol.