QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2012 SKQB 249 Date: 2012 06 22 Docket: NJ 22 of 2010 Judicial Centre: Saskatoon BETWEEN: HER MAJESTY THE QUEEN and MICHAEL WAYNE GAMBLE Counsel: K. Humphries for the Crown C. Lavier for the accused DECISION MAHER J. June 22, 2012 Introduction [1] On November 9, 2010 after trial, I found the accused, Michael Gamble, guilty of aggravated assault contrary to s. 268 of the Criminal Code and breach of an undertaking contrary to s. 145(3) of the Criminal Code. The Crown then applied to have Mr. Gamble declared a dangerous offender. On January 26, 2011 ordered that Mr. Gamble be remanded for an assessment pursuant to s. 752.1 of the Criminal Code. The consent of the Attorney General was filed as well. Position of the Crown [2] The Crown submits that Michael Gamble should be found dangerous offender within the meaning of s. 753.(1)(a)(ii) and he should be sentenced to an indeterminate sentence. Position of Mr. Gamble [3] That the evidence does not meet the statutory requirements of dangerous offender designation and that long-term offender designation is the appropriate finding with term of imprisonment from four to eight years in penitentiary for the predicate offence followed by lengthy supervision order toward the statutory maximum. [4] sentencing hearing was held with viva voce evidence from Dr. R. W. Holden who had done forensic assessment of Mr. Gamble pursuant to the order of the court. The Crown called thirteen witnesses who provided evidence about Mr. Gamble’s prior criminal convictions. Transcripts and documentation from previous sentencing hearings were filed. Previous pre-sentence reports were filed as well. The Crown called expert evidence about street gangs in Saskatoon and as well Corrections Services Canada officials testified as to gangs and gang involvement in the penitentiary. There was evidence from the correction workers employed at the Saskatoon Correctional Centre as to Mr. Gamble’s conduct while on remand. [5] The defence called Father Andre Poilievre, volunteer who works with inmates at the Saskatoon Correctional Centre. Mr. Gamble testified on his own behalf. Relevant Law The Dangerous Offender Provisions of the Criminal Code as Amended in 2008 [6] The provisions of the Criminal Code that apply on this dangerous offender application are as follows: 753. (1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be 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; or [7] One must as well consider the definition of “serious personal injury offences” as defined in s. 752 as follows: (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 ... and for which the offender may be sentenced to imprisonment for ten years or more, ... [8] In the event that was to find Mr. Gamble dangerous offender the Criminal Code provides three sentencing options as set out in ss. 753(4) and (4.1): (4) If the court finds an offender to be dangerous offender, it shall (a) impose sentence of detention in penitentiary for an indeterminate period; (b) impose sentence for the offence for which the offender has been convicted which must be minimum punishment of imprisonment for term of two years and order that the offender be subject to long-term supervision for period that does not exceed 10 years; or (c) impose sentence for the offence for which the offender has been convicted. (4.1) The court shall impose sentence of detention in penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is reasonable expectation that lesser measure under paragraph (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or serious personal injury offence. [9] In addition, am satisfied that the provisions relating to the general sentencing principles and objectives as set out in ss. 718 to 718.2 of the Criminal Code have application in addition to the statutory provisions related to the dangerous offender proceedings. [10] Section 718 sets out the following objectives of sentencing: 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. [11] Section 718.1 provides the following: 718.1 sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [12] Section 718.2 provides the court must take into consideration number of principles and in particular s. 718.2(e) which provides: (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. [13] The Alberta Court of Appeal reviewed the 2008 amendments in R. v. Warawa, 2011 ABCA 294 (CanLII), 278 C.C.C. (3d) 409 (C.A.) where Rowbotham J.A. made the following comments: The 2008 Amendments made two changes to the dangerous offender regime that are significant to this appeal. The wording in section 753(1) has changed from "may" to "shall", making the finding that an offender is dangerous mandatory once the statutory criteria are made out. Prior to the 2008 Amendments, sentencing judges retained discretion to decline to declare as dangerous an offender who met the statutory criteria. 10 With the 2008 Amendments, the discretion has shifted to the sentencing stage. Whereas previously an indeterminate sentence was mandatory when an offender was declared dangerous, now the court sentencing dangerous offender has discretion to impose an indeterminate sentence or fixed sentence, with or without long-term supervision order (section 753(4)). However, that discretion is limited by the newly added section 753(4.1) which creates presumption that an indeterminate sentence shall be imposed unless the court is "satisfied by the evidence adduced during the hearing of the application that there is reasonable expectation that lesser measure ... will adequately protect the public against the commission by the offender of murder or serious personal injury offence." [14] In R. v. Downs, 2012 SKQB 101 (CanLII), 391 Sask. R. 240 (Q.B.), Mills J. commented the following on the amendments: In my opinion, that entire approach has been supplanted by the new legislation. The initial application to label someone dangerous offender is accomplished within the application of the criteria in the legislation to the offender's circumstances. The Court's consideration of reserving the dangerous offender designation for the worst of the worst has been subsumed into the legislation. Parliament, through its amendment, has, in fact, determined that those offenders who fall within the criteria enumerated are, by definition, the worst of the worst and deserving of the dangerous offender designation. This issue is of particular significance to Mr. Downs because review of his big picture, including his family circumstances, his employment record, his conviction record and previous sentences, would not obviously label him as the worst kind of criminal society demands be locked up indefinitely in order for protection. There appears to be, however, no place to apply the comments found in Johnson, Lyons and Lemaigre in the structure of the designation post amendment. The Crown, in argument, stated that Mr. Downs does not present himself as typical dangerous offender. agree. The Crown further argues that it does not matter so long as the criteria contained in the new legislation are met. reluctantly agree. [15] am satisfied on review of the Criminal Code provisions and the relevant case law that if one, or more, of the criteria in s. 753.(1)(a) are proven by the Crown beyond reasonable doubt, must find Mr. Gamble dangerous offender. The Crown, as well, must establish pattern of repetitive behavior. Gunn J. made the following comments in R. v. Kakakaway, 2003 SKQB 205 (CanLII), 58 W.C.B. (2d) 310 at para. 110 to 115: 110 The Crown must establish pattern of repetitive behaviour by the offender. These words are not defined in the Criminal Code. 111 In R. v. Langevin (1984) 1984 CanLII 1914 (ON CA), 11 C.C.C. (3d) 336 (Ont. C.A.), Lacoursiere J.A. considered the meaning of "pattern of repetitive behaviour" as set out in s. 753(a)(i) of the Criminal Code. In that case two similar offences were committed by the accused. In separate incidents he grabbed girls from behind, took them to secluded place, ordered them to undress and had forced anal and vaginal intercourse with them. In each case the accused was stranger to his victim, and threatened them to ensure their co-operation. Each was released only after assurances not to tell anyone were extracted from them. 112 At p. 348 of his judgment Lacoursiere J.A. said the following: In my opinion this element [pattern of repetitive behaviour] is not based solely on the number of offences but also on the elements of similarity of the offender's behaviour.... 113 In R. v. Lewis (1984), 1984 CanLII 2027 (ON CA), 12 C.C.C. (3d) 353 (Ont. C.A.), Howland C.J.O considered an application under s. 688(a)(i) [now 753(a)(i)] wherein it was argued there was not sufficient "pattern of repetitive behaviour" as the offences committed were different. The court held the section does not depend simply on the number of offences but on the repetitive nature of the offender's behaviour. 114 In Neve, supra, the Alberta Court of Appeal set forth four elements which must be satisfied pursuant to s. 753(1)(a)(i). The four elements are: (a) pattern of repetitive behaviour which may be established in one of two ways: (i) Where there are similarities in terms of the kind of offences; (ii) Where the offences themselves are not similar in kind, but in result, in terms of the degree of violence inflicted on the victims. Because the pattern of behaviour must be "repetitive", one episode of violence will not be enough under this subsection. (b) The predicate offence must form part of the pattern of repetitive behaviour. (c) The pattern must show failure by the offender to have restrained his behaviour in the past. The "impugned conduct must show that the offender has failed to restrain his or her behaviour in the past and there exists likelihood of causing death, injury or severe psychological damage through failure to restrain that behaviour in the future." Likelihood means more than possibility and at the very least means more probable than not. (d) The pattern must demonstrate likelihood of death, injury, or severe psychological damage to other persons through failure to restrain his or her behaviour in the future. The court must be satisfied that the pattern of conduct is substantially or pathologically intractable. (Per LaForest in R. v. Lyons, 1987 CanLII 25 (SCC), [1987] S.C.R. 309 at 338). 115 In Neve, supra, the court considered the nature of similarity necessary to establish pattern under either s. 753(1)(a)(i) or 753(1)(a)(ii). The court held that pattern can be established on "two different bases". At para 111, the court stated: ... 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. [16] As well, Ottenbreit J. (as he then was) made the following comments when defining pattern in R. v. Casemore, 2009 SKQB 306 (CanLII), 336 Sask. R. 110 (Q.B.) when he said the following at para. 9: "pattern" does not need to equate to similar fact evidence; general similarity is sufficient. There need not be lengthy history of violence or aggression for pattern to be found, so long as there are sufficient elements of similarity in the offender's behaviour. The pattern must contain an element that the dangerous behaviour was not restrained in the past, and there must be likelihood that the same behaviour in the future will not be restrained and will cause death, injury or severe psychological damage. Or, alternatively, the pattern must contain aggressive behaviour which demonstrates substantial degree of indifference to the reasonably foreseeable consequences to the victims of the offence. The Predicate Offence [17] In my judgment of November 9, 2010 reported as R. v. Gamble, 2010 SKQB 414 (CanLII), 363 Sask. R. 311 (Q.B.), I found that Mr. Gamble stabbed the victim, Wesley Delaronde, several times on the right side of his mid-section with a knife. held Mr. Gamble’s actions were not premeditated and were of limited duration as shown on the video surveillance DVD entered by the Crown. found the accused not guilty of attempted murder (s. 239 of the Criminal Code) but found him guilty of the included offence of aggravated assault (s. 216(1) of the Criminal Code). On conviction for this offence an offender may be sentenced to imprisonment for term not exceeding fourteen years. [18] Given the conviction and the Criminal Code provisions for imprisonment, I am satisfied that the predicate offence is a serious personal injury offence within the meaning of s. 752 of the Criminal Code. Personal Circumstances of Michael Gamble [19] Michael Gamble was born August 26, 1990 in Saskatoon, Saskatchewan. He is the fourth oldest of six siblings. His older brothers, Jordan, age 27 and Preston age 26, are both currently incarcerated in Saskatoon. Preston apparently is serving time for manslaughter. Both Jordan and Preston have been associated with gangs in the Saskatoon area. [20] Kendra, who is 23, basically initially raised the children in the family home. The mother, Nancy, had personal problems and was not present significant amount of the time when Michael was growing up. When Michael was 13 he ran away and his mother Nancy sent him to live on the Beardy’s Reserve with an uncle. He lasted there for about one and one-half years. [21] In his educational endeavours he attained somewhere between grade seven and grade eight within the school system of Saskatoon. However, he did attain his GED while incarcerated at the Saskatoon Correctional Centre. He has been sentenced in excess of fifteen times to Kilburn Hall and the Paul Dojak Centre. His employment has been minimal with some work driving fork lift on potato farm while under conditions from an order of the court. Criminal Record [22] The following is summary of his criminal record which commenced in August of 2005: 2004-06-08 1) carrying concealed weapon (1-8) Probation yr Saskatoon S. 90 CC (2 chgs) Youth Justice Court 2) mischief under $5000 S. 430(4) CC 3) Break, enter theft S. 348(1)(B) CC 4) Fail to comply with Recog. S. 145(3)CC (5 chgs) 5) Break enter with intent S. 348(1)(a) CC (2 chgs) 6) obstruct peace officer S. 129(a) CC 7) Fail to attend court S. 145(2)(a) CC 8) Poss of Weapon S. 88 CC 2004-12-09 1) Break enter with intent 1) mos. mos. under Saskatoon, SK s. 348(1)(a) CC supervision in the (Youth Justice Court) Community 2) Poss of weapon 2) mos. mos. Under Supervision in the community mandatory prohibition order S. 51(1) of YCJA 3) Fail to comply with disposition 3) Time served S. 137 YCJ Act chgs. 2005-04-05 Escape lawful custody 10 days days under S. 145(1)(a) CC supervision in the community 2005-07-08 Unlawfully at large 19 days days under supervision S. 145(1)(b) CC in the community 2005-08-16 Unlawfully at large 42 days 21 days under supervision Saskatoon, SK s. 145(1)(b) CC in the community Youth Justice Court 2005-11-02 Obstruct Peace Officer Time served Saskatoon, SK s. 129(a) CC (Youth Justice Court) 2006-02-14 Robbery mos. mos. under supervision Saskatoon, SK s. 344(b) CC in the community probation yr. (Youth Justice Court) mandatory prohibition order under S. 51(1) if YCJ Act 2006-10-19 Obstruct Peace Officer Probation mo. Saskatoon, SK s. 129(a) CC (Youth Justice Court) 2007-05-08 1) Assault with weapon 1) 12 mos. mos. under supervision Saskatoon, SK s. 267(a) CC in the community mandatory (Youth Justice Court) prohibition order s. 51(1) YCJ Act Judicial determination of serious violent offence made under s. 42(9) of 2) Fail to comply with disposition 2) time served S. 137 of CC 2007-07-24 1) Fail to comply with disposition (1 2) mos mo under Saskatoon, SK s. 137 YCJ Act (2 chgs) supervision in the community (Youth Justice Court) 2) Poss of weapon s. 88 2008-03-31 1) Assault with weapon (1 2) 14 mos mos under Saskatoon, SK s. 267(a) CC supervision in the community on each (Youth Justice Court) 2) Mischief under $5000 Chg mandatory or discretionary Prohibition order s. 51 YCJ Act 3) unlawfully at large s. 145(1)(b)CC 3) 14 mos. mos under supervision In the community 2008-07-29 Order after review Regarding charges concluded 07 May 08 Youth Justice Court Count #1 07 July 24, and 03 Mar 31, an order Saskatoon, SK After review was held before Judge M. Irwin who ordered that the YP serve the last two (2) mos. of his secure custody disposition in open custody. 2008-12-04 Assault s. 266 CC 60 days cons. Adult Court Count Saskatoon, SK 2010-11-09 Aggravated assault 268(1) [23] His record discloses wide range of sentences from time served to maximum of twenty-one months in closed and open custody. His record involves eight weapons related offences, four break and enter, several unlawfully at large and escaping lawful custody. He was convicted in 2006, when he was fifteen years of age, of robbery and in May of 2007 of assault with weapon when he was sixteen years old and again convicted in March of 2008 of assault with weapon when he was seventeen years old for which he received fourteen months. In December of 2008 he was convicted of an assault and sentenced to sixty days in custody. He was then convicted of the predicate offence in November of 2010. [24] The Crown has provided in exhibits PS-4 and PS-5 two binders summarizing the various court documents for offences that Mr. Gamble has been convicted of and which are outlined in his record that has been summarized herein. It is important to do an analysis of the various offences and the penalties assessed therein which propose to do: June 8, 2004, convictions the accused was thirteen years nine months old, involved twelve individual charges. Offences ranged from failure to comply with undertakings to possession of concealed weapons. There is no indication of violence to others. Sentence one year probation. January 5, 2005 the accused was fourteen years of age. Offences were break, enter with intent, possession of weapon, failure to comply with disposition (three counts). The accused had been on remand for fifteen weeks. His sentence was eight months in custody with four months supervision after credit for remand time of eight months. April 5, 2005 the accused was fourteen and one-half years old. Charge was escape lawful custody. The accused while on secure open custody went to an aboriginal festival and he disappeared at banquet, he was re-arrested on April 3, 2005. Sentence ten days secure custody, five days supervision. July 28, 2005 the accused was fourteen years eleven months. Charge unlawfully at large. On June 16, 2005, Gamble was to attend an appointment with child and youth services worker. He was to take the bus to the appointment. He failed to keep the appointment and did not return to the Centre. He was at large for twenty-four days. Sentence nineteen days custody, nine days community supervision. August 16, 2005 the accused fifteen years old. Charged with unlawfully being at large. Gamble had been given four-hour pass, did not return within the time frame. He was arrested at 11:00 p.m. that day. Sentence forty-two days in custody, twenty-one days supervision in the community. November 2, 2005 the accused was fifteen years two months. Charged with obstructing peace officer. He pled guilty of giving false name and date of birth to police officer. Sentence was time served. February 14, 2006 the accused was fifteen years six months. Charge robbery s. 344(b) of Criminal Code. Robbery involved the taking of toque by Gamble and co-accused from another individual. Sentenced to six months secure custody and three months supervision in the community followed by one year probation. October 13, 2006 accused aged sixteen years two months, charged with obstructing peace officer by providing false name and date of birth. Sentence one month probation. May 8, 2007 the accused was sixteen years, nine months. Charge assault with weapon on or about December 8, 2006. The pre-sentence report indicates that Gamble and the victim were drinking together and they got into an altercation with the victim receiving five stitches on the top of his head. Sentence twelve months custody followed by six months supervision in the community. Failure to comply with disposition s. 137 YCJA time served. July 24, 2007 the accused was sixteen years, eleven months of age. Charge failure to comply with conditions on November 23, 2006. He had possession of weapon. Sentence was two months custody and one month supervision in the community. March 31, 2008 Age- seventeen years, nine months. Charges assault with weapon (s. 267), mischief under $5000 (s. 430), unlawfully at large (s. 145). The offence occurred when Gamble was on Christmas reintegration leave from secure custody. He was under the influence of alcohol and present with others in the Pratt residence. The sentencing judge found that Gamble had less active role and he did not smash any windows or inflict any blows. He had acted in threatening manner and held in his possession bear spray. Sentence concurrent sentence of twenty-one months custody and supervision, twelve months secure custody followed by two months of open custody followed by seven month supervision in the community. December 4, 2008 the accused was eighteen years three months. Charge assault (s. 266) occurrence on October 15, 2008. Gamble was convicted of assaulting another resident in custodial facility. The victim required stitches. The sentence was sixty days consecutive as an adult sentence. November 9, 2010 Age was twenty years and two months. Convicted of aggravated assault (s. 328(1)), two counts of breach of conditions. This conviction is the predicate offence and the circumstances are set out in my judgment of November 9, 2010. March 31, 2011 age of the accused twenty years eight months. Possession of weapon dangerous to the public on January 13, 2010. Gamble was detained by police officer and when asked by the police officer if he was carrying knife or weapon, Gamble acknowledged having knife in his possession for his protection. Sentence ninety days. The Evidence from the Sentencing Hearing The Evidence of Dr. Roger Holden [25] Dr. Holden was qualified to give opinion evidence with regard to the assessment and treatment of violent offenders including the assessment of risk. Dr. Holden is forensic psychologist with over thirty years experience working with violent offenders. He has prepared in excess of sixty assessments for dangerous offender hearings for the Province of Saskatchewan. He, as well, made four professional presentations on gang members, their attitudes, and his approach on the matter of disengagement from gangs. Dr. Holden prepared forensic assessment of Mr. Gamble dated May 1, 2011, prepared pursuant to an order of this court. [26] Dr. Holden spent about four and one-half hours with Mr. Gamble. He obtained personal circumstances of Mr. Gamble’s relationship with his five siblings including the fact that his older brothers are currently serving prisoners and his sister, Kendra, had acted in the role of his mother. [27] Dr. Holden in preparing his report reviewed several pre-sentence reports and correctional facility reports on Mr. Gamble. Mr. Gamble acknowledged to Dr. Holden that his conviction on the predicate offence was his fault and he no longer blamed his co-accused, Lisa Bluebell. Dr. Holden administered the following psychological tests to Mr. Gamble: 1) Raven Standard Progressive Matrix intelligence 2) Personality Assessment Inventory personality 3) The Western Personality Inventory personality and alcoholism 4) Substance Abuse Subtle Screening Inventory substance abuse 5) The State Trait Anger Inventory STAXI-2 anger and hostility 6) The Hostility to Women Scale hostility toward women. [28] Dr. Holden made the following comments with regard to Mr. Gamble’s interest in treatment: The respondent’s interest in and motivation for treatment is typical of individuals being seen in treatment settings, and he appears more motivated for treatment than adults who are not being seen in therapeutic setting. His responses suggest an acknowledgment of important problems and the perception of need for help in dealing with these problems. He reports positive attitude towards the possibility of personal change, the value of therapy, and the importance of personal responsibility. However the nature of some of these problems suggest the treatment would be fairly challenging, with difficult treatment process and the probability or reversals. [29] Dr. Holden also determined that the accused had 99% probability of an alcohol problem. On the matter of anger control, Dr. Holden’s determination was that Mr. Gamble had great deal of trouble preventing himself from expressing his anger outwardly. [30] Dr. Holden did risk assessment known as HCR-20 which is clinical instrument to predict the potential for future violent offending by individuals who have background in committing violent crimes. The tests consist of twenty items made up of ten historical factors, five present variables, and five future management variables. [31] On the historical factors, he found Gamble to be likely to re-offend violently in eight out of ten of the factors. In the current factors he found the likelihood to re-offend three out of the five questions and on the future risk management he found Gamble to be risk in all five questions. He further concluded the following: 1. That he had no doubt, unless measures were taken to manage Gamble’s risk, he will continue to perpetrate acts of physical violence; 2. That the severity of any future violence perpetrated by Mr. Gamble may well include injuries which are severe and possibly life threatening; 3. In the future some of Gamble’s assaults may be gang related and others may be directed at individuals who have offended him in some way. [32] Mr. Gamble’s release plan to reside with his sister, Kendra, in Dr. Holden’s opinion had little credibility and he said the following at page 52: find that Mr. Gamble’s release plan does not reflect the kinds of intensive programming he will, in my opinion, require if he is to live more pro-social life and on the basis of that factor, believe, he is high risk to re-offend violently in the future. Dr. Holden further determined that if Mr. Gamble continued to be involved in gang activities it would be highly destabilizing to him and he believes that Mr. Gamble would be high risk to re-offend violently in the future. [33] In his conclusion Dr. Holden made the following comments at page 61: In considering s. 753.1(1)(b) believe there are substantial risks that Mr. Gamble will re-offend violently. In considering s. 753.1(1)(c) have significant concerns that Mr. Gamble’s apparent inability at this time to control what appears to be pathological anger and hostility. He has amassed variety of convictions for violence and convictions for violence was part of the crime. He desperately needs to learn how to recognize his level of negative arousal and deal with it more pro-socially. He is not unintelligent and has shown some interest in doing so while incarcerated. Unfortunately in my opinion, up to this time he has shown little inclination to put in place whatever he has learned when release and has instead lead what appears to be criminal and anti-social lifestyle potentiated by untreated and chronic substance abuse. Two factors in my opinion appear to mitigate his situation: a) he is young and one would hope as he becomes more mature he will become more in control of his emotions and behaviour; b) he has not yet apparently been offered the kinds of high intensity programs mentioned above and in my opinion he may well benefit from attending such programs. As noted above he will in my opinion need an extended period of supervision in the community following his release, if indeed he is to be released. In reviewing Michael Gamble’s file conclude there is possibility of eventual control of his behavior in the community and believe he qualifies for the designation of long term offender at this time. As noted above he will, in my opinion, need extra period of supervision in the community following his release, if indeed he is to be released. THE EVIDENCE OF HUGO FOSS [34] He testified that he is registered psychologist employed by Correction Services Canada (“CSC”) for the past twenty-four years. His focus in the most recent years has been on gangs and gang members. He has prepared papers and given presentations on gangs and particularly on individuals disaffiliating from gangs. Foss was qualified as an expert to give opinion evidence in the area of intervention, risk assessment and risk management of federally sentenced offenders and to give opinion evidence as to gang intervention and gang disaffiliation prospects and strategies. [35] He testified that for person to disaffiliate from gang it is difficult struggle which can take upwards of ten years. The individual must build new life and if person leaves it is similar to leaving family. The person leaving needs support. It generally takes person two years before they are comfortable in new environment. There is high failure rate which usually occurs within the first three to six months. He is of the opinion that earlier intervention by professionals with the person wishing to disaffiliate is better. The person who attempts to disaffiliate from gang is person at risk, especially if he is in custodial facility. He has worked with approximately three hundred dangerous and long-term offenders. He estimates that about dozen have successfully disaffiliated from gangs. He said the intervention strategies work best with younger individuals. However the person must be motivated and be able to detail why they committed the offences. He finds there is greater incentive for person to change when they are in the penitentiary for the first time. He expressed the opinion that twenty-two year old, alcohol free with no mental illness or sexual offences is an ideal person for the programs offered by CSC. He was of the opinion that there were no significant programs in Provincial Institutions for individuals to disaffiliate given the shorter duration of their sentences. THE EVIDENCE OF DR. MARLY ZAHARIE [36] She was qualified to give opinion expert evidence as child psychologist dealing with high risk and violent offenders. She provided treatment to Michael Gamble from October of 2004 to December 2005, from February to March 2006, in July 2007 to November 2008. Her evidence was that Gamble has been part of the Indian Posse gang since he was approximately fourteen years old. Her observations were that while institutionalized he could manage. However when released into the community without significant structure he had difficulties. He generally fell apart within one to two months in the community. He had anger management that needed to be dealt with. In her opinion he needs to be motivated to change with plan and will to stick to the plan. She prepared report dated March 2, 2005 (exhibit PS-4, tab 10) on Michael Gamble after his sentencing on December 9, 2004. The report contains five recommendations which included thorough addiction assessment to determine the level of addiction services that the fourteen year old Gamble would need to be successful when he returns to the community. She determined that Gamble was entrenched with the Indian Posse gang. He expressed to her that the only thing he was good at was being gang member. Dr. Zaharie felt that Gamble had given up hope. In her view, he was not able to change as it was too hard for him. Her last contact with Gamble was in December, 2008. Dr. Zaharie’s opinion is that if Gamble was motivated to change, he would need to have consistent service provider for delivery of programs to him. His major issues are motivation, substance abuse, and anger management. CONSTABLE MICHAEL JOHNSON [37] He is Constable with the Saskatoon City Police on the gang unit for approximately one year. He would check on Gamble when he was released on conditions into the community. Gamble usually was home on the first couple of checks. If he was not home on check he would be charged. He found Gamble to be polite and proud of his gang colors. CAROLINE LAVIOLETTE [38] She has been youth worker from June of 2005 to March of 2011. Gamble was on her case load from November 2006. Her program was looked at as therapeutic rehabilitation. She said he showed good level of maturity compared to other youth. He would speak openly to her and in her opinion Gamble was influenced by his older bothers Preston and Jordan. She knew they were gang members and had introduced him to the Indian Posse. He told her that he needed to be loyal to the Indian Posse in respect of his brothers. He would do what they expected of him. She did talk to him about disaffiliation from the Indian Posse, but was not successful. Laviolette’s opinion is that by December 2009, when Gamble was nineteen, he understood the need to change and understood the consequences of his actions. He had the cognitive ability, but had no vision for his life other than loyalty to the family which included the Indian Posse. It was her view that he lacked motivation to change. He does however respond to treatment when he is engaged. However peer influences are very difficult to break when young people lack motivation. HOLLY RIORDAN [39] She is Saskatoon Correction worker who had Gamble on her case load in 2009. He had low security rating. His issues were alcohol, anger management, education and employment. In September 2009, he took the two-week violence prevention program, which seemed to help him with anger management. SHERYL OLSEN [40] She testified that she is program clerk at the Saskatoon Correctional Centre where Gamble was on remand. He had work position in the unit and was taking his GED which is uncommon on remand. She gave him book called, “Stop Anger Now” which he worked with her on three of the four chapters. She said he appeared to cognitively understand the chapters. She worked with him until she left on sick leave in June of 2011. BRANDY ROSIAK [41] She is Correction Worker at the Saskatoon Correctional Centre and has been for the past two and one half years. She was Michael Gamble’s case worker for eight months, commencing October 2011. She gave him medium security rating because of his charges and his gang relationship. While she was his worker she said that he worked on his GED and art. He applied to take creative writing class which was delivered by the University of Saskatchewan students. He wrote an article (PS-19) which focussed on discouraging youth from joining gang. While she was his worker he was charged with an attempt by his girlfriend, Ashley, to smuggle marihuana into him in the facility. He pled guilty and was sentenced to thirty days. In her report on Gamble dated December 23, 2011 she gave him positive review. JESSICA FORRESTER [42] She has been the security intelligence office at the Saskatoon Correctional Centre for the past year. She searched Gamble’s cell on one occasion for contraband and seized drawings with Indian Posse symbols which are not allowed. Her notes show as well that he was jumped by members of the Terror Squad. SARGENT LAVALLEE [43] He is member of the Saskatoon Police Service gang unit and was qualified to give opinion evidence in the area of street gangs. He testified that tattoos indicate the level of person in the Indian Posse. He reviewed pictures of Gamble which showed his level of association in the Indian Posse. He said that Preston Gamble is in the IP leadership but is not full patch member. However, Michael Gamble while in the Saskatoon Correctional Centre received his full patch. In Lavallee’s opinion Michael got his patch because he was soon going to the Pen. Although generally patch is only given when person is in the Pen. [44] The patch is tattoo on person’s back in the shoulder area which is in calligraphy type lettering has the wording “Indian Posse”. Lavallee’s last contact with Michael Gamble was in 2006. He is aware of three Indian Posse members who have had some success with disaffiliation or leaving the Indian Posse or becoming inactive. BRIAN MCDONALD [45] He is clinical psychologist and works with young offenders in the young offender program. He prepared psychological assessment of Michael Gamble dated September 10, 2004 (PS-4, Tab. 9). Michael was fourteen years of age at the time. McDonald’s view was that Gamble was not overly concerned about his behavior in the community. McDonald concluded that Gamble was cultural conformist. cultural conformist is defined as person that lives to be comfortable and satisfied and therefore tends to see little reason to change their way of life or seek change in themselves. McDonald in his report at page concluded that Gamble “demonstrated the ability to control his impulses, if he so desired, but it seemed more important at this time to be accepted as street wise youth”. He recommended that Gamble receive substance abuse treatment in secure facility. [46] McDonald did further assessment of Gamble in March of 2008, when Gamble was seventeen and one-half years old. This report focussed on Gamble’s cognitive abilities and was not complete psychological assessment or complete risk assessment. McDonald concluded in his report (PS-5, tab 38, page 5) that Gamble could improve his scoring if he was willing to apply himself to school and to apply himself more sincerely when completing the tests. McDonald recommended Gamble’s ongoing education focus on life skills and anger management while in custody to assist him adjusting better in the community. [47] McDonald testified that young offenders can leave life of crime as they mature into their early adult years from eighteen to twenty-five. He is of the opinion that people with similar psychological profile to Gamble are treatable. LEEANNA SKENE [48] She was program officer at the Saskatchewan Penitentiary from 2003 to April 2011. In that position she supervised all programs offered. The programs offered were substance abuse, general violence, family violence, sex offender, and there are two streams in the programs, moderate program which runs for six weeks, on half day basis, utilizing one staff member. The second stream is high intensity. This program runs full days from Monday to Friday for four to six months and is delivered by two staff members. She advised that all programs are voluntary and that inmates are required to pay for their participation. FATHER ANDRE POILIEVRE [49] Father Andre was called by Michael Gamble. He was qualified to give opinion evidence as to offender disaffiliation from gangs. Father Andre has interviewed hundred or more gang members. He co-ordinates for gang members program called “the Straight Up” organization. In his experience there are four phases for an individual to disaffiliate or leave gang. They are: 1) the desire to leave; 2) the vacuuming stage; 3) the rebuilding with school, and sobriety; 4) stability which takes about four years. [50] There are five conditions to entering into the “Straight Up Program”: 1) drop their colours; 2) deal with their addictions; 3) be honest; 4) change your attitude to become humble; 5) give back to the community. [51] He met with Michael Gamble at Gamble’s request in the Saskatoon Correctional Centre remand facility about three to five months ago. He talked to Gamble about the Straight Up Program but Gamble and he have had no further communication. In his discussions with Gamble, Gamble gave to him his article on the futility of gangs. This article ended up being published in book that Father Andre was completing for use by youth ages 11 to 15. Father Andre generally works with individuals from in the area of eighteen years of age to the mid twenties. He does not keep statistics however he believes he has assisted between sixty to hundred individuals to leave gangs. [52] As far as Gamble is concerned Father Andre said, he has only had one meeting with him and the next step is up to Gamble. It is his choice to take the next step for disaffiliation from the Indian Posse. MICHAEL GAMBLE [53] He testified that he has five siblings, three older and two younger. He never knew his father and his role models have been his brothers Preston and Jordan. Both of these brothers have been involved in street gangs. His twenty three year old sister, Kendra, took care of him as his mother was frequently absent from the family. His brother Preston is currently in the Penitentiary for manslaughter and robbery and his other brother Jordan is in the Saskatoon Correctional Centre for assault. [54] Michael got his IP colours when he was approximately fourteen years old. He acknowledged that to leave or disaffiliate from the Indian Posse is difficult. His role currently in the Indian Posse is not the top. He is in the middle. Lower Indian Posse members look to him for direction and he has to deal with quarrels among the members. IP members are not motivated by money. Their primary focus is loyalty to the gang. [55] He has taken programs at youth facilities and at Saskatchewan Corrections. However, he never thought he would be getting federal time and he never considered that there would be an application to designate him dangerous offender. He asked Sheryl Olsen while on remand to get him some materials on anger management. He has learned about anger management. He acknowledges that he has to think about what is going on, use your energy to walk away, get out, and do work out. On the article he wrote he did not know that it would be published. He had not connected with the Straight Up Program he just talked to Father Andre on one occasion. He just took his final GED examination. [56] He did the article because he did not want kids to get involved with gangs. His brothers’ kids know that their dad is in gang and is in jail. Gamble said this is not what he wants to happen to him. He acknowledged that he is at risk when he uses alcohol and marihuana and that he can be violent when he is drinking. [57] He also acknowledged that it is hard to leave gang. However, he said some members just become inactive members and fade away. He was told by Father Andre the five rules to join the Straight Up Program. He is concerned that if he dropped out now it would look like he was dropping out for court and his other concern was that if he goes to the Pen he might need his colours for couple of years for protection. He was not able at this time to commit to the five steps as required by Father Andre. He believes that he can be controlled in the community because he is motivated by not wanting to spend the rest of his life in jail. Is Michael Gamble Dangerous Offender Within the Meaning of s. 753(1) of the Criminal Code? [58] There is no doubt that Mr. Gamble has been convicted of serious personal offence as set out in s. 753.(1)(a). The Crown must establish pattern of repetitive behavior under s. 753.(1)(a)(i),(ii), (iii). Mr. Gamble’s record, which reviewed earlier, including the predicate offence indicates that he has been convicted of five additional violent offences between 2006 and 2010. [59] The similarities of the violent offences are as follows:1) He had been under the influence of alcohol or drugs at the time;2) He committed the violent offences while under supervision under court orders in the community;3) While carrying out the violent offences, he used or had in his possession a knife;4) Most of the violent offences were as a result with his affiliation with the Indian Posse. [60] On a review of the circumstances of each of the six violent offences, including a review of the trial decisions, I am satisfied that the Crown has proven a pattern of repetitive behavior within the meaning of s. 753(1)(a)(i). Risk Assessment [61] Dr. Holden in his report and in his evidence is of the opinion that Mr. Gamble is of high risk to re-offend violently. accept his opinion. Dr. Holden also identified that Mr. Gamble has alcohol, drug and anger management issues. An additional issue is his affiliation with the Indian Posse gang and his loyalty to that gang. When all of these issues are taken together it results in Mr. Gamble being unable to restrain himself which results in him having caused serious personal injury to his victims. I therefore find that the Crown has proven beyond a reasonable doubt that Mr. Gamble constitutes a threat to the life, safety, physical or mental well-being of other persons as set out in s. 753.(1)(a)(i) and I find him a dangerous offender. Is There Reasonable Expectation that Sentence Less Severe Will Adequately Protect the Public? [62] In R. v. Lyons, 1987 CanLII 25 (SCC), [1987] S.C.R. 309 LaForest J. commented on indeterminate sentence provisions said the following at para. 44 It seems to me that having concluded that the legislative objectives embodied in Part XXI are not only of substantial importance to society's well-being, but, at least in theory, sufficiently important to warrant limiting certain rights and freedoms, one must equally conclude that the legislative classification of the target group of offenders meets the highest standard of rationality (and use the word not as term of art) and proportionality that society could reasonably expect of Parliament. Not only has diligent attempt been made to carefully define very small group of offenders whose personal characteristics and particular circumstances militate strenuously in favour of preventive incarceration, but it would be difficult to imagine better tailored set of criteria that could effectively accomplish the purposes sought to be attained. [63] Parliament defined very small group of offenders whose personal characteristics and particular circumstances militate strenuously in favour of preventive incarceration. The issue to be determined is whether there is reasonable expectation that determinant sentence followed by lengthy period supervision will adequately protect the public. [64] Dr. Holden is of the opinion that determinate sentence with long term supervision is appropriate in the circumstances of Mr. Gamble. The evidence is that Mr. Gamble has not had any intensive programming that is available at a federal institution. Also of significance is his youthful age and Foss indicated that young individuals on their first admission to a penitentiary are more likely to leave a gang. [65] It is also necessary to review Mr. Gamble’s record in detail. It indicates that his acts of violence have generally resulted in less than severe injuries to the victims with the exception of the predicate offence. There is evidence as well as to the steps Mr. Gamble has taken while on remand, which include voluntarily taking an anger management program, obtaining his GED, and writing an article discouraging youth from joining gangs which has been published, along with his ability to work in the facility and with staff members. [66] Mr. Gamble’s evidence is that he wishes to make change in his life and not be like his older brothers with their children coming to visit them in jail. [67] I am satisfied, when one considers all the factors, that there is a reasonable expectation that a determinate sentence followed by a lengthy period of supervision will adequately protect the public. What is the Appropriate Determinate Sentence and Long Term Supervision Order? [68] Before establishing what determinate sentence should be, it is necessary that review the provisions of the Gladue factors and its application to Mr. Gamble. The Application of the Gladue Principles s. 718.2(b) of the Criminal Code 1. Is the offender an aboriginal? 2. What Band or Community does the offender come from? What alternatives exist to incarceration, are there any treatment facilities, and is there justice committee? [70] The pre-sentence report dated April 25, 2007 and tab 32 in exhibit PS-5 indicates that Michael is status Indian from Beardy’s Okemasis First Nation, where he resided the first few years of his life before relocating to Saskatoon. He has on couple of occasions resided at Beardy’s Okemasis Frist Nation for short periods of time with an aunt. However, his primary community for residence has been the City of Saskatoon in the Province of Saskatchewan. There are alternatives that exist to incarceration in the City of Saskatoon including drug and alcohol rehabilitation centres. There is no evidence before me as to the existence of justice committee within the City of Saskatoon. 3. What combination of systemic or background factors contributed to this offender coming before the court? Has the offender been affected by substance abuse and alcohol abuse in the community, or poverty, or overt racism or family or community breakdown? [71] The pre-sentence report indicates that Michael does not believe he has been affected by poverty. Although his family has limited funds and his mother has been reliant upon Saskatchewan Assistance Plan to meet her needs. [72] He does identify that there is much gang involvement due to community breakdown and the impact of not having his birth father has left him without positive role model. He does believe that by witnessing and being subject to others in the community using substances and committing crimes has impacted the path he has chosen for himself. He believes that if he lived on the reserve he would not commit crime as he would not want to commit break and enter on someone he knows or who may be relative of his. [73] On the issue of racism, Michael can recall times at school that he felt discriminated against and was not accepted and not allowed to play with other students due to his race. [74] His mother, Nancy, and her siblings have attended residential school. However, Michael does not know how that has impacted on her. 4. Would imprisonment effectively deter or denounce the crime in the community? [75] am satisfied given the nature of the crime it is one that requires both deterrence and denunciation within the community which can only be accomplished by imprisonment. 5. What sentencing options exist in the community at large and in the offender’s community? [76] The community at large and the offender’s community are one and the same. There are certain facilities within the City of Saskatoon for supervision. However, given the nature of the offence and the accused’s record, am satisfied that incarceration for minimum of two years is the only alternative. [77] The Crown’s position is that determinate sentence should be in the range of ten years less one for one credit on remand plus ten year supervision order. Mr. Gamble’s position is that determinate sentence should be in the range of four to five years less remand credit of one for one and long term supervision order in the upper range. [78] have considered the following decisions in coming to decision as to an appropriate determinate sentence: R. v. D.S.K., 2005 SKCA 18 (CanLII), 257 Sask. R. 161 Accused 19 year old gang member, stabbed and brutally beat the victim with the assistance of others. His record for mainly property offences with one conviction for assault causing bodily harm. Sentence four years. R. v. Durocher, 2002 SKCA 17 (CanLII), 217 Sask. R. 88 Accused 38 year old, stabbed the victim, had record of five different assaults, sentence eight years less three year credit for remand. R. v. Daniels, 1990 SKCA (SentDig) 108 Accused 42 year old, stabbed victim three times, lengthy record, three previous assaults, sentence four years. [79] I am satisfied given the accused’s record as an adult and as a young offender plus the circumstances of the unprovoked attack by Gamble on the victim in this instance that an appropriate sentence is six years or seventy-two months. He is entitled to a one for one credit for remand time for a credit of twenty-six months. I therefore sentence the accused as follows:a) To forty-six months in a federal penitentiary;b) To an order under s. 753.(4)(b) of the Criminal Code that Mr. Gamble be supervised in the community for a period of nine years from the date of his release; c) There will be an order under s. 47.051 authorizing the taking of bodily substances for the purpose of forensic DNA analysis; d) There will be an order under s. 109 for ten year firearm prohibition; e) There will be an order given the length of sentence that the victim surcharge be waived. J. R. D. MAHER
The accused was convicted of aggravated assault after stabbing another person several times in the mid-section. The Crown brought a dangerous offender application. The accused was 22 years old at the time of sentencing. His prior criminal record consisted of mostly youth convictions. The offender was a known member of an aboriginal gang. The evidence suggested he was somewhere in the middle of the gang hierarchy. The accused had professed some desire to leave the gang. He had written an article directed at other youth warning them of the pitfalls of gang affiliation. The article was published in a book distributed to at risk youth. The accused had looked into getting help to leave the gang, but admitted on the stand that he was not prepared to take steps to leave because he might need protection from the gang in the penitentiary. While incarcerated, he had gang drawings confiscated from him and he had been jumped by members of a rival gang while in custody. The accused had shown some initiative in taking anger management courses and had completed his GED while incarcerated. HELD: The offence was a serious personal injury offence within the meaning of s. 752 of the Criminal Code. The criminal record together with the evidence heard at the hearing establishes that when the accused has committed violent offences he has been under the influence of alcohol or drugs, under supervision by court orders in the community, has used a knife or had one in his possession and most of the offences were a result of the accused's affiliation with the Indian Posse gang. The Crown has established a pattern of repetitive behaviour within the meaning of s. 753(1)(a)(i). Dr. Holden assessed the accused and found him to be a high risk to re-offend violently. The Crown has also proven that the accused constitutes a threat to the life, safety, and physical or mental well-being of other persons as set out in s. 753(1)(a)(ii). The accused was declared a dangerous offender. However, the Court found that given the accused's youth, the fact that he had not had any of the intensive programming that is available in a federal institution and the fact that there was some chance the accused might leave the gang, a determinate sentence and long term supervision order would adequately protect the public. In imposing a determinate sentence, the Court also considered that the accused's acts of violence, with the exception of the predicate offence, had generally resulted in less than severe injuries to the victim and the accused had voluntarily taken some steps to address his issues while incarcerated. The accused was sentenced 6 years or 72 months in custody, less credit for remand, to be followed by a 9 year supervision order under s. 753.4(b).