R v Natomagan, 2019 ABQB 943

Court of Queen’s Bench of Alberta Citation: R v Natomagan, 2019 ABQB 943 Date: 20191210 Docket: 150487387Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Ashton Dennis Natomagan Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that may identify the victims must not be published, broadcast, or transmitted in any way. NOTE: This judgment is intended to comply with the identification ban. Corrected judgment: A corrigendum was issued on December 11, 2019; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice T.D. Clackson _______________________________________________________ I. Introduction [ 1 ] Mr.

Natomagan is a dangerous offender but an indeterminate sentence is not required. A sentence of 20 years plus a 10 year supervision order, less credit for time served, is proportionate and adequate to protect the public. II. Circumstances

[ 2 ] On March 23, 2002, Ashton Natomagan, drunk and looking for a place to sleep at a house party, entered the bed of his 11 year old victim. He choked her into unconsciousness. When she awoke she had a bloody nose, blood in her hair and she had been both vaginally and anally penetrated. Her Victim Impact Statement and those of her sister and mother leave no doubt about how horrifying the events were and how they continue to haunt her. On January 14, 2003, he pleaded guilty and was sentenced to four years and ineligible for parole until he had served at least half his sentence.

He was 20 at the time. [ 3 ] On January 13, 2007, his warrant expiry date, he was released. On April 12, 2008, Mr. Natomagan attacked a 16 year old female whom he had selected as a robbery target. He said he was coming off a drug and alcohol binge. He struck her in the throat and pinned her in some bushes and then hit her some more. He pinned her against a fence and searched her pockets, threatening to rape her and covered her mouth to keep her quiet. He groped her breast and she said he also touched her vagina but no sexual intercourse occurred.

She suffered a broken cheek bone, bruising to her face, neck and arms and a laceration to her lip. [ 4 ] At arrest, some brief time later, Mr. Natomagan resisted and had to be pepper sprayed. He also admitted to hitting and robbing another woman just prior to the foregoing attack. [ 5 ] On February 3, 2010, after pleading guilty, he was found to be a long-term offender and sentenced to a term of eight years, which became five years and one month after credit for time served.

He was also placed on a long-term supervision order of eight years. [ 6 ] He remained in custody until his warrant expiry date of February 27, 2015. On March 3, 2015, while at a half-way house and bound by the strict terms of his supervision order, he absconded. Apparently, because he was suspected of having used marijuana and he didn’t want to be breached. [ 7 ] On April 11, 2015, just over one month after he absconded; he attacked again. The circumstances of that attack follow. [ 8 ] Between 5:40 pm and 6:00pm, CD, a 37 year old woman, was jogging along 101 Street in Edmonton, Alberta.

Just after she turned west at approximately 114 Avenue, she was grabbed from behind by Mr. Natomagan. He placed his left arm around her neck, choking her. He placed his right arm around her mid-section. He then lifted her off the ground. CD was unable to breathe and after struggling for a short time, lost consciousness. She awoke face down in a nearby alley with Mr. Natomagan putting weight on her back. She was unable to get up. She tried to yell for help, but he told her to keep quiet, and brandished a box cutter near her face, placing the blade near her chin. [ 9 ] Mr. Natomagan forced her to stand.

He told her not to look at him, and made her walk in front of him down the alley. He continued to hold the knife near her face, and told her a number of times to be quiet. As they walked southbound down the alley, he forced her to walk in a zig-zag pattern. At one point during their walk, he pushed his erection into her buttocks and asked: "Do you feel that?" After less than five minutes of walking, he forced her into a secluded area between two garages. The area was approximately 3 to 4 feet wide, and 12 feet deep. At the back of the space was a gate that separated a back yard from the alley. Mr.

Natomagan sat down in the space, and made her sit down between his legs, facing away from him. [ 10 ] Mr. Natomagan demanded CD give him $200. She had no money on her person, nor a bank or credit card. As they spoke, she tried to steer the conversation away from returning to her home, for fear that two of her children would be there. They also discussed going to a bank or a convenience store. CD also suggested that if they found her phone, she could email-transfer him money. During this conversation, he continued to hold the knife in front of her. [ 11 ] At one point, CD turned her head to the side and Mr.

Natomagan told her not to look at him. He then placed the knife on the ground nearby and produced a roll of green masking tape. He taped her hands and wrists together in front of her, palm to palm. He then made her lay face down and taped her legs together. Finally, he placed tape around the back of her head and over her mouth. In each case, he used multiple layers of tape. CD did not struggle during this process for fear that he would use the knife against her. He instructed her not to move and he briefly left to search for her phone in the alley.

In his absence, CD stood up and was facing him when he returned about 15 seconds later. He was angry that she had moved. He told her that he was in control of the situation and that he could do anything he wanted. [ 12 ] Mr. Natomagan pulled her pants and underwear down to her ankles. They could not be fully removed because her ankles were still taped together. He forced her onto her knees. Her head was on the ground and her buttocks were in the air. He told her not to look at him. He also said: "Maybe I have to cut you so you understand that I'm in control." During this time, the knife was on the ground nearby.

He parted her buttocks with his hands, and reached under her shirt and bra to squeeze her left breast. He made further threats of harm to her. He then ordered her to stand, which she did. He pulled her pants and underwear back up to her waist and reinforced the tape on her wrists and ankles. He then made her lay down in the same position as before, face down, and went back into the alley. [ 13 ] After 15-30 seconds, he returned momentarily to make sure she had not moved and then left again. When he left for the third time, she was able to free her hands and ankles from the tape.

She was able to jump over the gate and into the backyard of a residence and ran to her home which was nearby. CD had a short conversation with her husband, at which point he called the police. CD provided a statement to police, then attended the Royal Alexandra Hospital. [ 14 ] CD suffered some scrapes to her knee and bruising on her legs. Her head and neck were sore for a couple days after the incident. [ 15 ] On the basis of those circumstances, the jury in Mr.

Natomagan’s trial, returned verdicts of guilty to the offences of Robbery, Sexual Assault with a Weapon, Kidnapping and Choking to enable him to commit those offences. [ 16 ] At the conclusion of the trial, the Crown advised that she would seek to have Mr. Natomagan declared a dangerous offender and seek to have him sent to prison for an indeterminate period. [ 17 ] As a result, s. 753 of the Criminal Code is engaged. Specifically, the Crown relies upon sections 753(1)(a)(i), 753(1)(a)(ii) and 753(1)(

b) to establish Mr. Natomagan’s dangerousness and s.753(4.1) as requiring an indeterminate sentence under s. 753(4).

III. The Applicable Legal Principles [ 18 ] A dangerous offender application requires a two-step approach. One must first determine whether the offender is dangerous and then one must determine a fit sentence. [ 19 ] As I indicated, the Crown argues that the designation is appropriate on any of three alternatives. The relevant sections of the Criminal Code 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 a dangerous offender if it is satisfied: (

a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (

a) of the definition of that expression in

section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing (

i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or (

b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (

b) of the definition of that expression in

section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses. [ 20 ] The criteria thus identified are disjunctive. Satisfying any one of the three options will suffice to find Mr. Natomagan dangerous. A. Section 753(1)(a)(

i) and (1)(a)(ii) [ 21 ] The predicate offences and those earlier committed by Mr. Natomagan are plainly, objectively, serious personal injury offences. Mr. Natomagan did not argue otherwise. Therefore, the issue is whether Mr. Natomagan constitutes a threat to the life, the safety or the physical/mental wellbeing of others. [ 22 ] There is no dispute as to the proper

interpretation of the applicable sections. The Alberta Court of Appeal’s reasons in R v Neve [1999] ABCA 206 and the Supreme Court of Canada’s reasons in the R v Boutilier [2017] SCC 64, provide the necessary guidance. [ 23 ] The Crown must prove beyond a reasonable doubt that Mr. Natomagan constitutes a threat to life, safety or wellbeing.

To do so, she must prove a pattern of repetitive, criminal behaviour which must involve: violence, attempted violence, actual endangerment of life, safety or physical/mental wellbeing, likely endangerment of life, safety or physical/mental wellbeing or did cause or is likely to have caused severe psychological damage. [ 24 ] Each offence which is identified as being part of the pattern, including the predicate offences (the offences upon which the offender is being sentenced) must involve violence, endangerment or severe psychological damage. If the pattern is not proved, that ends the inquiry under Subsections (

i) and (ii) as there can be no threat absent a pattern. It is also important to note that the existence of a pattern does not necessarily lead to the conclusion that there is a threat. The existence of a threat based upon the pattern must still be established. [ 25 ] Chief Justice Fraser in Neve at paragraphs 107 and 108 offered the following relative to determining the existence of a pattern: [107] What does it take for the Crown to prove the required patterns of behaviour under ss.753 (a)(

i) and (ii)? While “pattern” is not defined in the Code , what is defined in each of ss.753 (a)(

i) and (ii) are the various components instrumental in creating the pattern. If the Crown fails to prove one or more of the required elements, then the proscribed pattern has not been made out. Under s. 753(a)(i), the elements are the following: 1. A pattern of repetitive behaviour; 2. The predicate offence must form part of that pattern; 3. That pattern must show a failure by the offender to restrain his or her behaviour in the past; and 4.

That pattern must show a likelihood of death, injury or severe psychological damage to other persons through failure to restrain his or her behaviour in the future. [108] Under s. 753(a)(ii), the required elements are these: 1. A pattern of persistent aggressive behaviour;

2. The predicate offence must form part of that pattern; and 3.

That pattern must show a substantial degree of indifference by the offender respecting the reasonably foreseeable consequencesof his or her behaviour. [26] Again, in Neve, in paragraphs 114 through 117, Chief Justice Fraser said this: [114] Moving from the behavioural component of the pattern contemplated under s.753(a)(i), we turn to the lack of restraint element.To qualify as part of the pattern, the impugned conduct must show that the offender has failed to restrain his or her behaviour in the past(and that this has led to death, injury or severe psychological damage or at least a likelihood of this harm) and that there exists alikelihood of causing death, injury or severe psychological damage through a failure to restrain that behaviour in the future.

Likelihood,in this context, means more than simply a possibility. At the very least, it means more probable than not. [We note that in Lyons, supra at338, the Court used the “very likely” formulation when dealing with this issue, but in other cases, Jones, supra, and Currie, supra, itused the term “likelihood”.] [115] Under s.753(a)(ii), the persistent aggressive conduct must show a substantial degree of indifference by the offender with respectto the reasonably foreseeable consequences to others of that behaviour. We agree with the sentencing judge that this

section should beread as including a requirement that the Crown prove beyond a reasonable doubt that the evidence discloses a likelihood that the type ofaggressive behaviour described will continue in the future. [116] There is another dimension to the offender’s conduct which merits special emphasis. The net effect of the threshold requirementsunder ss.753(a)(

i) and (ii) is that not only is the sentencing judge to consider whether the past conduct is likely to continue. To satisfy thepattern requirements, the conduct must also demonstrate a relatively high level of intractability.

As La Forest, J. confirmed in Lyons,supra at 338: Also explicit in one form or another in each subparagraph of [s.753] is the requirement that the Court must he satisfied that the pattern ofconduct is substantially or pathologically intractable. [117] This reflects Parliament’s intention that not only must the offender have demonstrated a commitment to serious violence orendangerment in the past; the reasons for that behaviour should militate against any reasonable prospect for meaningful change in thefuture.

It is this combination - violence and the likely continuation of that conduct - which, taken together, justify the finding that thisoffender will likely pose a threat in the future. [27] In Boutilier, Justice Côté, speaking for the majority, offered this: [23] . . . . A prospective assessment of risk has always been part of s. 753( 1). The 2008 amendments did not change the requirementsfor this assessment.

In line with the purpose and wording of s. 753(1) as well as the consistent jurisprudence of this Court, an offendercannot be designated as dangerous unless the judge concludes that he or she is a future “threat" after a prospective assessment of risk.Contrary to the divided jurisprudence on this point and the reasons of the Court of Appeal in this matter, this future risk assessment hasalways required consideration of future treatment prospects.

This, in turn, means that the designation provision is not overbroad as it doesnot capture offenders who, though currently a threat to others, may cease to be in the future, notably after successful treatment. [26] In Lyons, Justice La Forest read the objective element of the designation — the requirement that the predicate offence be a“serious personal injury offence” — together with the subjective element — the “threat” assessment — and concluded that four criteriawere “explicit” from the language of s. 753(1): (1) the offender has been convicted of, and has to be sentenced for, a "serious personalinjury offence”; (2) this predicate offence is part of a broader pattern of violence; (3) there is a high likelihood of harmful recidivism; and(4) the violent conduct is intractable (p. 338).

The last three criteria are part of the assessment of the “threat” posed by the offender. Thelast two of these are future-oriented, and Justice La Forest explained them as follows: Thirdly, it must be established that the pattern of conduct is very likely to continue and to result in the kind of suffering against which thesection seeks to protect, namely, conduct endangering the life, safety or physical well-being of others or, in the case of sexual offences,conduct causing injury, pain or other evil to other persons.

Also explicit in one form or another in each subparagraph of s. [688. now 753]is the requirement that the Court must be satisfied that the pattern of conduct is substantially or pathologically intractable. [27] The language of s. 753(1), which led Justice La Forest to develop the four criteria outlined above, has never been amended sinceits enactment in 1977. Before designating a dangerous offender, a sentencing judge must still be satisfied on the evidence that theoffender poses a high likelihood of harmful recidivism and that his or her conduct is intractable.

I understand "intractable” conduct asmeaning behaviour that the offender is unable to surmount. Through these two criteria. Parliament requires sentencing judges to conducta prospective assessment of dangerousness. [31] . . . . As I will discuss below, the purposes of prospective evidence at the designation and sentencing stages are different. Thedesignation stage is concerned with assessing the future threat posed by an offender. The penalty stage is concerned with imposing theappropriate sentence to manage the established threat.

Though evidence may establish that an offender is unable to surmount his or herviolent conduct, the sentencing judge must, at the penalty stage, turn his or her mind to whether the risk arising from the offender'sbehaviour can be adequately managed outside of an indeterminate sentence. [35] Determining whether or not a high risk of recidivism and intractability are present necessarily involves a prospective inquiry intowhether an offender will continue to be, in Justice Dickson's words (as he then was), “a real and present danger to life or limb”:Hatchwell v.

The Queen, (SCC), [1976] 1 S.C.R. 39, at p. 43. [37] Indeed, three features of the designation scheme demonstrate the importance of prospective evidence to a finding ofdangerousness. First, the pattern of violence that is proven through evidence of past conduct is future-oriented — it must show a

“likelihood’” of harmful recidivism “in the future”: see the language in s. 753(1)(a). As Neuberger put it. “[t]hough a past pattern may beproved by the Crown, if there is no evidence that such a pattern will necessarily lead to a likelihood of re-offence, the dangerous offenderapplication will fail": J. A. Neuberger, Assessing Dangerousness: Guide to the dangerous offender Application Process (loose-leaf), at p.4-27.

A past pattern of violence is considered in the global assessment of an offender’s future behaviour, which, in turn, is considered bythe Court in determining whether the offender constitutes a “threat”. [39] Second, the Criminal Code requires that an assessment report be filed before a dangerous offender application can proceed: ss.752.1 and 753(1). Usually, the assessment is conducted by a psychiatrist or psychologist: Neuberger, at p. 2-1.

This report includesexpert evidence on prospective aspects of dangerousness, such as risk factors, probabilities of recidivism, and treatment prospects: R. v.Jones, (SCC), [1994] 2 S.C.R. 229; see also Lyons, at pp. 364-65. [40] Third, s. 757(

a) provides that “evidence of character and repute may be admitted on the question of whether the offender is or isnot a dangerous offender”. Such evidence, while grounded in past conduct, is future-oriented — it speaks to the likelihood of harmfulrecidivism and the intractability of the violent pattern of conduct. If a dangerousness finding could be made without any prospectiveassessment of risk, this type of reputational evidence would be irrelevant to the designation, since it tends to show the offender’spropensity for future bad acts.

Indeed, it is not highly probative of past conduct, which is better proven by evidence of the prior bad actsthemselves. Thus, by making evidence of character and repute relevant to the designation, this provision strongly suggests that aprospective assessment of future risk is part of the inquiry. [41] Section 753(1) states that, once the judge is satisfied that the designation criteria are met. the judge "shall" designate the offenderas dangerous. Recall that before the 2008 amendments, the legislation provided that, once these criteria were met, the judge "may” makethe designation.

Some interveners suggested that this amendment requires the judge to declare an offender dangerous as soon as thestatutory criteria are met, even if the judge is not satisfied of his or her future dangerousness. This argument is based on the premise thatthe statutory criteria for designation are overbroad and might apply to non-dangerous offenders. However, as explained above, aprospective assessment of the future risk posed by an offender is embedded within the dangerous offender criteria.

Thus, a judge "shall"designate an offender as dangerous only if he or she is satisfied beyond a reasonable doubt that the offender actually constitutes a futurethreat to safety in light of all the relevant evidence.

Once a judge finds an offender to be a "threat" after a prospective assessment ofharmful recidivism and intractability, requiring a further exercise of discretion to determine whether the offender poses a future riskwould be unnecessary and would contradict the very conclusion the judge has just reached. [42] This brings us to the central issue in the instant case, namely whether a sentencing judge is entitled to consider evidence of futuretreatment prospects when deciding whether to designate an offender as opposed to when imposing a sentence.

Though I recognize thatthe jurisprudence on this question has been divided, with some courts finding future treatment prospects to be irrelevant at thedesignation stage (R. v. Carleton (1981), 1981 ABCA 220 , 32 A.R. 181 (C.A.). at para. 13, affd (SCC),[1983] 2 S.C.R. 58; R. v. Sullivan (1987), (ON CA), 20 O.A.C. 323, at para. 23; R. v. Newman (1994), (NL CA), 115 Nfld. & P.E.I.R. 197 (C.A.). at para. 127; R. v. Oliver (1997). 1997 ABCA 49 , 114 C.C.C. (3d) 50 (Alta.C.A.), at p. 57) and some finding them to be a relevant consideration (R. v.

Neve, 1999 ABCA 206. 137 C.C.C. (3d) 97, at para. 241), Icannot agree with the Court of Appeal that the criteria for designation “have never included the future treatability of the offender”: para.53.

An offender’s future treatment prospects are, and have always been, a relevant consideration at the designation stage. [43] As the assessment of prospective risk described above is concerned with whether an offender will continue to be “a real andpresent danger”, being unable to surmount his or her violent conduct, the sentencing judge must consider all retrospective andprospective evidence relating to the continuing nature of this risk, including future treatment prospects.

Furthermore, I am of the viewthat confining the consideration of treatability to the choice of penalty under s.753(4.1) rests on a theoretical distinction between thedesignation stage and the penalty stage that is neither practical nor useful. [44] Given that a dangerous offender application is typically conducted in one hearing, it would be artificial to distinguish evidencethat should be considered to designate an offender as dangerous from evidence that should be considered to determine the appropriatesentence.

All of the evidence adduced during a dangerous offender hearing must be considered at both stages of the sentencing judge'sanalysis, though for the purpose of making different findings related to different legal criteria. During the application hearing, the Crownor the accused must present any prospective evidence concerning risk, intractability, or treatment programs, including the requiredassessment report addressing prospective treatment options.

Many aspects of clinical evaluations provide evidence going to both theassessment of the offender’s future risk and the sentence necessary to manage this risk: Clinical evaluations identifying the presence of enduring mental illnesses and their treatability, presence of deeply ingrained personalitytraits or personality disorders that are likely to persist with time, sexual deviations, and substance-use disorders all become relevant inunderstanding the meaning of repetitive behaviours, persistent aggressive behaviours, and their relationship to the predicateoffence/offences.

The presence of impulsivity, lack of empathy, and need for immediate gratification at the expense of others will assistthe Court in examining whether the risk assessment and management of risk factors are related to the statutory tests concerned.(Neuberger, at p. 2-37) [45] The same prospective evidence of treatability plays a different role at the different stages of the judge's decision-making process.At the designation stage, treatability informs the decision on the threat posed by an offender, whereas at the penalty stage, it helpsdetermine the appropriate sentence to manage this threat.

Thus, offenders will not be designated as dangerous if their treatment prospectsare so compelling that the sentencing judge cannot conclude beyond a reasonable doubt that they present a high likelihood of harmfulrecidivism or that their violent pattern is intractable: see Neuberger, at p. 7-1, by M. Henschel.

However, even where the treatmentprospects are not compelling enough to affect the judge's conclusion on dangerousness, they will still be relevant in choosing thesentence required to adequately protect the public. [28] From all of this, it is my view that to determine whether a pattern exists and more specifically whether there is a futurelikelihood of a failure to restrain violent behaviour, one must look to evidence relating to treatment, risk, programming and character.However, to conclude that the Crown has proved beyond a reasonable doubt that it is more likely than not that Mr.

Natomagan isintractable, and therefore, will be unable to restrain his violent behaviour, then the pattern identified in s. 753(1)(a)(

i) will be made out.

As a result, the threat required will also be made out and designating Mr. Natomagan as a dangerous offender must follow. B. Section 753(1)(b) [ 29 ] As I have said, the Crown argued that s. 753(1) (

b) of the Criminal Code can also be relied upon in this case to designate Mr. Natomagan as a dangerous offender.

In order to establish dangerousness under s. 753(1)(b), the Crown must prove: that the accused committed a serious personal injury offence; that the accused has demonstrated, in the past, a failure to control sexual impulses; that there is a likelihood he will commit an offence as a result of his failure to control his sexual impulses; and, if he does commit such an offence, it is likely to cause injury, pain or evil to his victim. [ 30 ] Again, as the designation requires an assessment of future conduct, the Court must be satisfied that the putative dangerous offender is substantially and pathologically unable to control his sexual impulses.

IV. Analysis [ 31 ] With the foregoing principles in mind, I will examine each subsection’s requirements to determine if Mr. Natomagan should be designated as dangerous. A. Section 753(1)(a)(i) 1. Serious personal injury offence; [ 32 ] As I have said, this criteria or element has been made out. 2. A pattern of repetitive behaviour; [ 33 ] Plainly, there is a pattern of repetitive, violent, criminal behaviour as I outlined earlier. Again, there is no real dispute on that subject. Ms. Quinlan, on Mr.

Natomagan’s behalf, did point out that the first offence was predominantly sexual whereas the second offence and the predicate offences were more robbery oriented with sexual components. In my view, each of the offences demonstrate exceptional violence and complete disregard for the well-being of his victims. That is the pattern. I think it is also fair to conclude that there is a pattern of sexual gratification as part of the violent conduct, even if it was not the predominate motivation for Mr. Natomagan in the last two occurrences. 3.

Predicate offences are part of the pattern; [ 34 ] Again, the offences he committed on this occasion are wholly consistent with his prior conduct. No argument was made to suggest otherwise. 4. Past behaviour of Mr. Natomagan shows a failure to control his impulses; [ 35 ] Again, the evidence clearly establishes this element. Mr. Natomagan did not contest the matter. 5. Has the Crown established that there is high likelihood that Mr. Natomagan will be unable to control his impulses resulting in a future victim? [ 36 ] Dr. Will and Dr. Jellicoe were ad idem in their assessment of Mr. Natomagan’s prospects.

He is now and will be for the foreseeable future a high risk to reoffend violently and sexually. Every risk assessment tool they used supported that conclusion. [ 37 ] While it is true that the tools used can overstate risk as they are not adjusted adequately for the fact that Aboriginal offenders tend to score higher (because the factors examined seem to be more prevalently experienced by Aboriginal offenders), the fact remains uncontradicted that the risk assessment tools have predictive value and all point to Mr. Natomagan being a high risk. [ 38 ] I accept the opinions of Drs. Will and Jellicoe that Mr.

Natomagan poses a high risk to reoffend. [ 39 ] As a 34 year old, after more than a decade of programming designed to deal with substance abuse, violence and sexual offending, Mr. Natomagan walked away from a very stringent long-term supervision order, designed to help him succeed in society. Despite having been sentenced to eight years and designated as a long-term offender, all of which should have reinforced his will to stay out of trouble, he committed the predicate offences. [ 40 ] The opinions of the doctors accord perfectly with common sense. Mr.

Natomagan is at the moment highly likely to continue his pattern of violence and sexual offending. [ 41 ] Furthermore, there is every reason, based upon his past and the anti-social personality traits he exhibits, to expect him to remain a high risk to reoffend, indefinitely. However, Mr. Natomagan argues that with programming and the simple passage of time, his risk to the public can be reduced. He argues that he has made gains from the programming and has shown that he can be motivated to work at the programming so as to achieve meaningful change. I accept that Mr.

Natomagan has seemed to benefit and despite some reports of being disinterested and unengaged, he has mostly demonstrated motivation to apply himself to the programming. [ 42 ] It is also possible that high intensity substance abuse programming will help Mr. Natomagan gain control of his addictions. However, the prospects on that subject do not appear bright since he has had moderate level substance abuse programming over a lengthy period and yet his most recent period of remand discloses substance abuse and possession, despite being in prison. The problem for Mr.

Natomagan is that despite the programming and his efforts, he remains virtually the same. He hasn’t really changed in the lengthy period that he has been incarcerated.

[ 43 ] It is reasonable to expect Mr. Natomagan will apply himself to the programming which will be offered to him in the future. It is possible that he will gain additional benefit from the sexual offender programming even though it remains virtually the same as it has been and is based upon cognitive behaviour therapy principles which Mr. Block firmly opined as unlikely to help Mr. Natomagan. [ 44 ] As for the argument that as he ages his risk of recidivism will also drop, there is no basis, on the evidence before me, to suggest that phenomenon is universal, or likely to apply to Mr.

Natomagan and his personality. [ 45 ] The evidence before me is that aging could be a factor in reduction of risk. While there is an apparent correlation, it isn’t possible to specifically draw that conclusion because there are other potential explanations for decreasing risk of recidivism as one ages. Factors such health, disability, individual personality traits and whether substance abuse is a factor, to name of few, are also possible explanations for the correlation.

Furthermore, there is no evidence that substance abuse declines with age. [ 46 ] Therefore, while it is possible that a high-risk offender may become less of a risk as he ages, the evidence here is not sufficient to conclude that Mr. Natomagan may be such a person. [ 47 ] Finally, because the designation phase of a dangerous offender sentencing hearing involves consideration of Mr.

Natomagan’s future prospects, his history and heritage are also relevant considerations, R v Wolfleg [2018] ABCA 222. [ 48 ] Commonly, we use the phrase “Gladue Factors” to describe the historic treatment of Indigenous persons through the filter of a particular offender’s circumstances. That phrase is somewhat offensive and I would prefer to use the general phrase: “The Impact of Canada’s mistreatment of Indigenous persons”. That phrase is more descriptive, accurate and much more apt to be properly understood by all Canadians.

We are here concerned with Canada’s mistreatment of Indigenous persons and the impact of that mistreatment on Mr. Natomagan’s life. Its impact on his moral culpability will be dealt with in the sentencing phase of this decision. [ 49 ] The potential benefits of Indigenous methods for healing, crime prevention and personal development must be considered. His life and his personality have been directly impacted by Canada’s mistreatment of his community. As such, it is necessary to determine whether his community, in the broad sense, can be activated or relied upon to reduce Mr.

Natomagan’s risk to recidivate. [ 50 ] Mr. Natomagan has expressed interest in his culture and becoming more involved in ceremonies and having more contact with Elders. That expression of interest has been inconsistent, which is consistent with Mr. Natomagan’s approach to all things in his life. However, I accept that his interest is genuine. [ 51 ] There are, of course, options with Correction Services Canada for contact with Elders, some ceremonies and some Aboriginal- specific and Aboriginal-adjusted programming. It appears that Mr. Natomagan has had exposure to those initiatives when he expressed an interest.

Unfortunately, there is nothing in the evidence to support that any such program has or will benefit Mr. Natomagan, despite his apparent interest. I suspect that the impact of such programming is severely hampered by the fact that the venue for delivery is a jail. That brings me to the powerful evidence of Mr. Block. [ 52 ] Mr. Block was qualified as an expert in forensic psychology with expertise in the assessment and treatment of Aboriginal offenders and was also qualified to offer opinion evidence regarding the unique treatment needs of Aboriginal offenders and Mr. Natomagan in particular. [ 53 ] Mr.

Block did not really assess Mr. Natomagan in the usual sense. His focus was more on what might help Mr. Natomagan become less likely to recidivate. To that end, he spent five hours with Mr. Natomagan; he reviewed the reports of Dr. Jellicoe and Dr. Will and he reviewed the documents provided to me, obtained through Correction Services Canada. He also spoke with Mr. Natomagan’s mother for 1.5 hours. [ 54 ] He concluded that the treatments offered by Correction Services Canada will not help Mr. Natomagan. In fact, in his view, they will at best make things worse for Mr. Natomagan.

He is so institutionalized that continuing as an inmate actually reinforces the maladjustment which is at the root of his criminality. [ 55 ] Mr. Block opined that a completely new paradigm is needed in Mr. Natomagan’s case. A paradigm centered in breaking down Mr. Natomagan’s assumptions, values and beliefs and replacing them with traditional Aboriginal values and spirituality. To accomplish this would involve the extensive involvement of one or more Elders, specifically directing and monitoring Mr.

Natomagan as he sheds his old ideas and learns appropriate values and embraces the spirits of the land and his ancestors. The classroom would be a remote area. The class would be survival, leading to self reliance and because he would be alone, self awareness. With guidance, all of that would assist the process of self renovation. [ 56 ] Mr. Block’s view is that it is a process which requires complete acceptance by Mr. Natomagan, a commitment to sobriety and which would be expected to take years. In that latter regard, I did not understand that apart from initial period of two years, Mr. Block expected to Mr.

Natomagan to be in isolation permanently. Rather, the process would be a period of isolation followed by socialization under the control of an Elder followed by another period of isolation. The isolation, socialization process would cycle with the period of the former decreasing and the latter increasing as Mr. Natomagan made progress. [ 57 ] I was moved by Mr. Block’s evidence and I am convinced that the program he described would benefit Mr.

Natomagan and many more of our Indigenous citizens who presently languish in our jails. [ 58 ] Unfortunately, while I might hope that our governments would explore and adopt the suggestions of Mr. Block, especially after the Truth and Reconciliation Report and the contrition expressed by our Prime Minister, there is absolutely no indication that such an approach is even in the minds of Correction Services. I agree that the Corrections and Conditional Release Act , Statutes Canada 1992, provides the statutory foundation which would seem to allow for such an initiative.

However, this type of program does not exist and it is beyond my authority to compel. [ 59 ] The Truth and Reconciliation Commission taught us that the gross over-representation of Aboriginals in jails is a product of

the wrong-headed government policy and the bigotry of non-indigenous Canadians. If we truly mean to right the wrongs Indigenous Canadians have and continue to suffer, it behooves us to rethink how we treat the persons who have been scarred by those wrongs. We must be willing to change our approach to rehabilitation for those, who like Mr. Natomagan, have not had any chance of normality, cultural or otherwise. I agree with Mr.

Block’s view that cognitive behavioural therapy (teaching someone to recognize what is wrong and why) is of precious little use to someone who does not understand or cannot get beyond himself and his needs. [ 60 ] Decades of unconscionable poverty, abuse and incarceration mark the plight of many Indigenous persons. The cycle needs to be broken.

Continuing as we have in the Corrections field, where true successes are seemingly rare, seems senseless. [ 61 ] All one can hope is that if this is truly a new dawn for Indigenous/non-indigenous relations, those with the power to change the paradigms will find the courage to do so. That power is not mine. I am constrained by what I see now and what the future appears to hold. That future does not seem to include Mr. Block’s recommendation. It includes more of what we have been doing. While that may ultimately reduce Mr.

Natomagan’s risk of violent recidivism, it is very unlikely to do so. [ 62 ] In my view, the Crown has proved that it is more likely than not to Mr. Natomagan’s inability to restrain his violent behaviour is intractable, in the present environment, and the environment which is most likely to exist in the future. 6 . Conclusion: [ 63 ] As each of the criteria required to make the designation of dangerousness under s. 753(1)(a)(

i) on the basis of repetitive behaviour have been established, it follows that Mr. Natomagan is a threat to life, safety or physical/mental well-being of others. He is therefore properly designated a dangerous offender. B. Section 753(1)(a)(ii) [ 64 ] There is obviously an overlap between this

section and s. 753(1)(a)(i). I will not repeat the issues and findings I made when considering s. 753(1)(a)(i). The criteria under s.753(1)(a)(ii) and the analysis are virtually the same as that of s. 753(1)(a)(i). Therefore, the analysis that follows is in relation to what differentiates (a)(ii) from (a)(i). 1. Is there a pattern of persistent aggressive behaviour? [ 65 ] As on the issue of a pattern of repetitive behaviour, so on this issue, there was little argument made by Mr. Natomagan. Plainly, Mr. Natomagan has used violence in each of the group of offences.

While the degree of violence was not identical in each instance, Mr. Natomagan was very violent in each case. That is his consistent pattern of action. His use of violence is persistent throughout. 2. Is there a substantial degree of indifference? [ 66 ] The details of each event which form the pattern of consistent, aggressive behaviour must show a substantial degree of indifference with respect to the reasonable, foreseeable consequences his victims will suffer. That is plainly the case here. 3. The future: [ 67 ] Again, tractability is the concern.

However, there is an additional factor that causes me to conclude that Mr. Natomagan is highly likely to violently recidivate in the future without regard to the likely consequences to his victims. His life is one, long episode of violence. From childhood to prison, violence and substance abuse are the common denominators. Consideration for consequences to his victims or even for himself is and has been completely lacking. 4. Conclusion: [ 68 ] The predicate offences are serious, personal injury offences. Mr. Natomagan has demonstrated a pattern of persistent, aggressive behaviour.

The predicate offences are part of that pattern. The offences forming the pattern demonstrate that Mr. Natomagan is substantially indifferent to the likely consequences of his actions for his victims. The Crown has proved that there is a high likelihood that Mr. Natomagan will have future victims and will continue to be substantially indifferent to the likely consequences to his victims. [ 69 ] In result, the designation of Mr. Natomagan as dangerous pursuant to s. 753(1)(a)(ii) is also appropriate. C. Section 753(1)(b) [ 70 ] Again, there is an overlap in the criteria considered under s. 753(1)(

a) and the relevant criteria here. For example, Mr. Natomagan committed a serious, personal injury offence of a sexual nature in each instance considered in concluding that he had demonstrated a pattern of behaviour as defined is s. 753(1)(a). That satisfies the Crown’s obligations to establish the first criteria for a declaration of dangerousness under s. 753(1)(b). There are two additional criteria: 1. Has the Crown proved that Mr. Natomagan has failed to control his sexual impulses? [ 71 ] Plainly, the violent sexual offences committed in 2002 were driven by Mr. Natomagan’s sexual impulses.

He demonstrated total lack of control. As well, while perhaps not primarily driven by his sexual impulses in 2007, he succumbed to his drives and demonstrated a failure to control his sexual impulses. In fact, it can be fairly said that his violent behaviour fueled his sexual desires and reduced his ability to control. [ 72 ] The predicate offences appear not to be primarily driven by Mr. Natomagan’s need for sexual gratification. However, again, the violence he exhibited translated into sexual impulses he did not control. [ 73 ] The Crown has proved the second criteria of dangerousness under s. 753(1)(b).

2. Has the Crown proved that it is highly likely that Mr. Natomagan will recidivate as a result of future failure to control his sexual impulses? [ 74 ] When considering Mr. Natomagan’s future behaviour under s. 753(1)(a), I concluded he was highly likely to violently reoffend. Therefore, the issue here is whether in doing so he will again be sexually driven and likely unable to control his sexual impulses and act on that drive. [ 75 ] If I find that he will be then, in my view, it follows that the sexual offence he is likely to commit will be likely to injure or cause pain to his victim. [ 76 ] In

summary, Mr. Natomagan’s criminal pattern is violence, usually substance fueled, and the violence leads to sexual impulses he has not tried to nor been able to control. That is important because treatment for sexually oriented offences has been taken exhaustively by Mr. Natomagan, yet, he committed the predicate offences. There is nothing before me to suggest more of the same or similar will be more effective than it has been in the past. In fact, there is a compelling reason to think more such programming will not be effective. The sexual offending is the sequelae of substance abuse which is the precursor to Mr.

Natomagan’s normalized and institutionalized violent behaviour. [ 77 ] By all accounts, Mr. Natomagan remains a high risk to sexually reoffend. Again, he has continually done so and the features of his personality orient him to that continuing behaviour. [ 78 ] Again, Mr. Natomagan argued that with age and programming, the risk may decrease. Dr. Will’s report offers this on the topic of the future: Information derived from Mr. Natomagan’s file was used to perform an actuarial risk assessment of his likelihood for sexual recidivism in the future.

The Static-99R is an actuarial risk assessment tool that is based upon 10 items which are added together to create a total score and was developed using samples from both North America and Europe. The Static-99R has moderate accuracy in ranking offenders according to their relative risk for recidivism. On average, there is a 70% chance that a randomly selected recidivist would have a higher score than a randomly selected non-recidivist using the Static-99R. Mr. Natomagan received a total score of 7 using the Static- 99R which places him in the risk level IVb, or “Well Above Average Risk”.

In high risk/need samples with the same score, the five year sexual recidivism rate is between 25 and 37%. This means that out of 100 sexual offenders with the same risk score, between 25 and 37 would be charged or convicted of a new sexual offense after five years in the community. The ten year sexual recidivism rate in high risk/need samples with the same score as Mr. Natomagan is 34 to 52%. Mr. Natomagan’s score of 7 on the Static-99R places him at the 97th percentile, with the confidence interval ranging from 95.6 to 98.6%. Percentile ranks describe the offender’s risk in comparison to other sex offenders.

Having a score at the 97th percentile means that out of 100 sex offenders, 96 would have a lower score, two would have the same score, and two would have a higher score. It is also important to note that this score was determined using Mr. Natomagan’s current age of 36. The Static-99R accounts for the scientific evidence that an individual’s risk for sexual recidivism decreases with age. However, Mr. Natomagan’s risk would only drop to risk level IVa, or “Above Average Risk” when he reaches the age of 60.

Like other actuarial risk assessment instruments, the Static-99R does not consider other dynamic, or changeable factors that may influence Mr. Natomagan’s risk for sexual recidivism. The Sex Offender Risk Appraisal Guide (SORAG) is another actuarial risk assessment instrument used to assess the likelihood of violent recidivism including sexual offenses involving physical contact with the victim. . . . Mr. Natomagan’s pro-rated score on the SORAG was 29. This score correlates to the risk category 8, and lies between the 96th and 98th percentile.

This means between 2 to 4% of individuals in the development sample had higher scores on this instrument than Mr. Natomagan. Other Risk Assessment : The Psychopathy Checklist - Revised 2nd Edition (PCL-

R) is an instrument used to assess the construct of psychopathy. Psychopathy is a multi-faceted, heterogeneously expressed and complex personality construct characterized by aberrant patterns of interpersonal engagement, deficient emotional expression and antisocial behavior. The average score of the general non-criminal population in the community using the PCL-R is 5 to 6 and the score for the average federal penitentiary inmate is in the low twenties.

It is important to emphasize the PCL-R is not a risk assessment tool; it is an instrument used to assess a personality construct that, when present to a significant extent, is associated with a greater risk of violent recidivism. Research also indicates that psychopathic individuals have a greater tendency to fail in treatment programs that address their mental health and risk needs and they may show a tendency towards poor institutional adjustment with greater difficulty in complying with conditions in less supervised settings, including in the community. Mr. Natomagan’s final score on the PCL-R was 29.5.

This score falls between the 79.5th and 84.3rd percentile. Thus, 79.5% to 84.3% of individuals in the standardization sample of North American male offenders had lower scores; conversely 20.5% to 15.7% had higher scores. This indicates Mr. Natomagan demonstrates psychopathic personality features to a high degree. [ 79 ] In her testimony on September 25, 2018, at page 29, lines 18-28, Dr. Will said this: Q Can sex drive change as people age? A Sex drive can change as people age. It can also change with respect to any number of factors.

We know that if people are physically ill or have some sort of ailment their sex drive can decrease or if they are depressed or have a mental illness, if they have stress in their life, or as they age. That being said, it's not a guarantee. There are individuals whose sex drive does not decrease as they get older. Q So unless you are able to obtain some information from Mr. Natomagan in an interview or I'm assuming you can do testing on sex drive, that's how they assessed it here, you wouldn't be able to say where Mr. Natomagan's sex drive is today? A No.

In the absence of an interview, I would not be able to comment on that.

[ 80 ] Neither Dr. Will nor Dr. Jellicoe were able to interview Mr. Natomagan. He refused them. [ 81 ] In cross-examination, Dr. Will conceded that there are studies that suggest that Aboriginal offenders score higher on both VRAG and SORAG. She also agreed that it is generally accepted that rates of recidivism go down with age and that the percentage of persons who recidivate when they pass 60 years is small. [ 82 ] Dr. Jellicoe’s report and testimony were completely consistent with the foregoing. She also used a structure professional judgment instrument (Risk of Sexual Violence Protocol).

In her report, she said this on the subject of that protocol: Risk for Sexual Violence Protocol (RSVP) The RSVP is intended to help evaluators conduct comprehensive assessments of risk of sexual violence in clinical and forensic settings. It was designed to assess adult males with a history of sexual violence.

The RSVP is a set of guidelines which enables clinicians to comprehensively gather and systematically evaluate historical and clinical information which bear on the question of sexual re-offense risk, and which further allows the clinician to assess factors, conditions and circumstances which have the potential to aggravate or mitigate such risk. It consists of 22 items, each of which has been independently validated as factors which consistently correlate with sexual recidivism. These items are contained within five broad domains:

A) Sexual Violence History,

B) Psychological Adjustment.

C) Mental Disorder,

D) Social Adjustment, and

E) Manageability. While no standardized scores are generated by the RSVP, the risk of sexually violent reoffending is moderately and positively correlated with the presence of greater numbers of the 22 factors. In addition, the RSVP is structured such that these factors can be considered in terms of their relevance to events in the distant and recent (6 months) past and be used to postulate risk scenarios for which risk-mitigation strategies then can be developed. Given that minimal information was available for the last six months, only the time periods of past and relevance were scored. Based on the RSVP, Mr.

Natomagan’s risk for sexual recidivism is judged to fall in the High range. The Sexual Violence History domain is related to the person’s history of sexual violence. The index offence is Mr. Natomagan’s third conviction for a sexual offence. The following items were rated as present and relevant with respect to Mr. Natomagan: • Chronicity : Mr. Natomagan’s history of sexual offences spans 13 years and consists of three offences. • Diversity : Mr. Natomagan’s victims included a child, an adolescent, and an adult. At least two of the victims which were strangers to him.

His sexual offending behaviours have consisted of vaginal and anal intercourse, sexual touching, and sexual threats. • Physical Coercion : Physical assault has been a factor in all of Mr. Natomagan’s sexual offences. He has choked two of his victims to the point of unconsciousness. He has forcibly confined, taped up, and brandished a knife with respect to one victim. He has physically assaulted one victim. • Escalation : In some respects, the intrusiveness of his sexual behaviours has decreased, from intercourse to sexual touching.

However, the overall circumstances in which he has assaulted his victims has become more brazen, with a possibility of planning (possession of tape and boxcutters during his index offences). The following items were rated as not present: • Psychological Coercion : There is no indication of Mr. Natomagan grooming or misusing a position of power as a means of gaining compliance. He appears to use brute force in gaining compliance. The Psychological Adjustment domain reflects aspects that have a strong and relatively specific conceptual link with decisions to engage in sexual violence.

The following items were rated as present and relevant: • Attitudes that Support or Condone Sexual Violence : Mr. Natomagan has been reported to hold attitudes of sexual entitlement as well as cognitive distortions that allow him to view women as sexual objects. • Problems with Stress or Coping : Mr. Natomagan has coped with stress by using substances or threatening suicide. Me has also reacted with violence. There were some documented incidents in which he used skills to manage his stress, but this did not appear to occur on a consistent basis. • Problems Resulting from Child Abuse : Mr.

Natomagan’s childhood history includes parental physical abuse, possible sexual abuse, and witness to parental substance use. The following item was rated as partially/possibly present: • Extreme Minimization or Denial of Sexual Violence : Mr. Natomagan has minimized some aspects of his sexual offences (e.g., stating the sexual touching within his 2008 offence was misconstrued). However, he has been open and acknowledging of his other offence behavior. The following item was rated as not present: • Problems with Self-Awareness : Mr.

Natomagan’s treatment reports reflected a demonstration of understanding of his triggers, risk factors, thoughts and feelings related to his sexual offending. The domain of Mental Disorder reflects the presence of significant psychopathology. The following items were rated as present: • Problems with Substance Use : Mr. Natomagan has a long history of alcohol and drug use dating back to his youth. His substance use has contributed to substantial impairment in multiple areas of functioning, including employment, relationships, and legal involvement. He has also used substances while incarcerated.

• Psychopathic Personality Disorder : Mr. Natomagan’s score on the PCL-R indicates that he possesses high traits of psychopathy, although he falls just below the cut-off for the label of psychopathy. The following item was rated as partially/possibly present: • Sexual Deviance : The 2014 Psychological Assessment indicated no diagnosis with respect to pedophilia. Based on his offence behaviour, Mr. Natomagan appears to become sexually aroused in violent situations. • Major Mental Illness : Mr. Natomagan has experienced some mental health symptoms such as anxiety, emotional dysregulation, and problems with sleep.

His past diagnosis of Schizophrenia was discounted by Dr. Mela in his 2009 Assessment. • Violent or Suicidal Ideation : Mr. Natomagan has expressed suicidal ideation over the years, resulting in segregation or transfers to RPC. Based on available documentation, he has never attempted suicide. The domain of Social Adjustment comprises four factors that reflect problems relating to other people and fulfilling social roles and obligations. All of the items were rated as present and relevant: • Problems with Intimate Relationships : Mr.

Natomagan has a history of short-term relationships and acknowledged using his girlfriends for sexual purposes. He has had one longer-term relationship, which seemed to have involved infidelity. • Problems with Non-Intimate Relationships : Documentation has outlined that Mr. Natomagan lacks strong community support. There was no indication of the presence of any pro-social peer relationships. It seems that he has maintained contact with his mother, but he has described his relationship with his father as estranged. • Problems with Employment : Mr. Natomagan has a minimal work history.

He worked briefly at RPC and received positive reviews. He has acknowledged possessing few skills that would make him employable in the community. • Non-Sexual Criminality : Mr. Natomagan has a number of convictions for general antisocial behaviour such as thefts, mischief, and possession of property. The final domain is Manageability. This domain involves issues related to managing risk of sexual violence in the community. All of the items were rated as present and relevant: • Problems with Planning : Mr. Natomagan has demonstrated the ability to develop relapse prevention plans.

However, he has never been able to implement his plans within the community, as reflected in him re-offending within days or weeks upon his release. • Problems with Treatment : Mr. Natomagan has actively participated in and successfully completed multiple treatment programs. Regardless, he has continued to re-offend suggesting a failure to benefit from treatment. • Problems with Supervision : Mr. Natomagan has a history of failing to abide by Court orders and escaping from lawful custody.

Within the institution, he has demonstrated negative behaviour that have resulted in institutional charges and/or segregation. [83] In her testimony, Dr. Jellicoe offered this on the subject: Q All right. How long have you been using this RSVP tool? A Since I started working with adults, so in 2013, and previously had used a different version of the instrument. Q So just so we understand correctly, using the RSVP does not involve any numbers. Is that right? A That's correct. Q Okay. So it doesn't involve scoring any items or any percentages? A No. Q Nothing involving statistics? A No.

There is no numerical calculations at all. Q All right. So if I understand, then, it's properly characterized as a set of guidelines that guides you through assessing the right risk factors and coming up with a formulation at the end? A Yes. Q You mentioned that the RSVP does more than simply risk assessment. It provides information as to treatability, treatment options, and that sort of thing. Does it provide an estimate of risk of recidivism? A It does. It guides you towards you can make a label, whether low, moderate, high risk to re-offend, but those labels aren't attachment to any percentages.

Q Can you tell us how this tool was developed? A It was developed by researchers out of B.C., and they didn't like the constrictive aspects of actuarial tools, and so they wanted an instrument that could have a little bit more options in constructing someone's risk management plan. So they really developed it from

looking at the literature, collecting all the — what the major risk factors that have been shown to be linked to recidivism, and then through the process of just trying some options and then providing it to other colleagues and seeing how they liked it and getting feedback, that's how it was constructed. Q And are you aware of whether there has been any research with respect to the predictive validity of this tool? A Not specifically, no. Q There hasn't been research, or you're not aware of it? A I'm not aware of any.

Q What about in relation to interrater reliability, so different people using the same instrument, is there any research on that? A There is research on that. It's shown to be lower than actuarial measures, which would be expected. They defined it as adequate, and they also noted that the more training that somebody has in using the instrument the better the interrater reliability is. Q What type of training is required to use it, and what training do you have to use it?

A They recommend that somebody has specific courses on administering tests, being aware of the literature involved in violent risk assessment, sexual risk assessment, just doing a risk assessment overall, reading the manual, and then having — being able to consult with colleagues. So that I've all done as well as I've participated in webinars that have — from the authors that have discussed it. Q We've heard some evidence about the HCR-20, and how that could not be used by Dr. Will. Does this tool compare in any way to the HCR-20?

A It has the same -- well, some of the same authors, and it has the same structure, so to speak. Where you look — like, how you rate the items are similar. Kind of, the purpose of, like, developing a risk formulation and risk management plan is similar. The — why Dr. Will or myself couldn't use the HCR-20 is because the HCR-20, so the Historical Clinical Risk Management, the clinical domain in that instrument is looking at the past six months of the individual's life, and so without an interview, we couldn't get that information. With the RSVP, they don't have specific items that are linked with a time frame.

They have a scoring rating that's called recent, so that piece I didn't score. So when I completed the instrument, I looked at whether the items were present in Mr. Natomagan's life throughout his life span up until the information that I had. Q All right. So I'll have you explain that just a little bit more. In looking at your notes at page 38 of 41, I see in the left-hand columns appears to be each of the individual items, and in the right-hand columns coding. And we see the words "presence past," "presence recent," and "relevance future" with check boxes for why and question mark.

Can you explain what that is, please. A Yes. So the presence past is looking at whether this item - and the manual gives a description of the item and what information you're looking for in order to score that item. So they are looking at — to see if this item has been present in the individual's life throughout their past, and so the why would be, yes, it has been present. A question mark would be it — like, there is partial evidence or there is some uncertainty of whether it's present or not, and the 'N' would be, no, this item is not present.

The recent is looking at the past six months, if that item remains present within the past six month, and then the relevant piece is looking more future oriented in that is this item related to the individual's offending behaviour. Q Okay. And I believe you told us you did not rate the presence recent because you did not have the opportunity to interview Mr. Natomagan about the last six months? A Yes. Q And I believe you told us that each of these 22 items are included because based on — based on the research it shows that they are positively correlated with an increase in sexual recidivism risk?

A Perhaps not necessarily risk, but in terms of sexual offending. Q Positively correlated with sexual offending? A Yes. Q On the item Excalation of Sexual Violence, Number 3, in your report you state that: In some respects the intrusiveness of his sexual behaviour has decreased from intercourse to sexual touching. However, the overall circumstances in which his has assaulted his victims has become more brazen. Can you explain what is meant by it "becoming more brazen." A Yes.

In comparison to his first sexual offence when there was always the degree of opportunity with each of them, the -- the third one, though, it seemed to be it went from, you know, breaking into a room and there was a child, you know, in her bed, like, kind of, in a closed room versus a woman on a public street, so just -- and there was potential that he had some forethought that he had tape on his person. So there may have been a degree of planning involved, so just circumstances like that make it a little bit of an escalation, kind of, the circumstances around his offence behaviour.

Q And under the domain of manageability at the bottom of page 27, you note that problems with planning and problems with treatment as well as problems with supervision are all present and relevant?

A Yes. Q I would like to ask you specifically about treatment. You indicate that he has actively participated in and successfully completed multiple treatment programs. Regardless, he has continued to re-offend suggesting a failure to benefit from treatment. Based on the entirety of your file review, what would be your prognosis for Mr. Natomagan's -- whether his sexual offending can be successfully treated in the future? A Well, technically, he has been successfully treated, in terms of he has completed the programs. He has done well in the programs, so should he, you know, take another sexual offending program?

I would anticipate that he would do well in the program, and he would complete it. The key will be whether he applies the skills and implements them outside of the program. Q And so maybe I should ask my question this way, what would be your prognoses in whether he would be capable of internalising the skills and using them outside of the program? A That I can't answer. Q What sorts of factors would his successful implementation of his skills and use outside of the program depend on? A Definitely, you know, his willingness and motivation to implement the skills.

It might partially depend on the support that he is in place to facilitate him implementing the skills, but those are possible ones based on -- on what I know, again — Q Is there any way to predict what his willingness or his motivation might be in the future? A No. Q And are you able to predict or estimate any time frame for improvement, and by that, I mean a reduction in his risk of sexual offending? A No. Q What is your opinion with respect to whether further sex offender treatment would likely reduce his risk of sexual recidivism?

A I'm not sure if it would have a benefit or not, I mean, and part of it depends on, you know, Mr. Natomagan and his approach and his views on treatment. So again, I'm limited by not being able to interview him. If he thought that -- by file review, it looks like he was successful, that he understood it, that he was able to build risk management plans for himself. Had I the opportunity to meet with him, then he might have a different opinion that, you know, no, I didn't fully understand or I needed this and this would have helped me with treatment. So there is that possibility.

Q Can there be more than one cause of sexual offending behaviour? A Absolutely. Q And is there any positive way to determine what the root cause of the behaviour is? A No. Q If an individual has more than one cause or one root cause of their offending behaviour, does it, then, make it more different to treat? A Well, most people have more than one cause, and we don't really know the etiology of sexual offending. So it's not really something that we focus on in treatment, which is why we do risk assessment so that we can get, like, treatment targets so that we know what can be helpful for them in future.

So it's much more about treating those risk factors that can, you know, make them — are likely to make them re-offend again. Q And you state at the top of the page 26 of your report that his risk for sexual recidivism is judged to fall in the high range. Can you tell us do you — do you simply look at the number of factors that are present, or how do you — how do you weigh those or determine what's more relevant and what's not more relevant in your mind? A Well, it happens on, like, a case-by-case basis.

Like, generally, I give, you know, a heavy weight to the sexual violence history, and then I also look at, you know, which items are, kind of, most significant for the individual. So for Mr. Natomagan, like, key items for him, you know, seem to be attitudes that support sexual violence, problems with stressor coping, sexual — or sorry — substance use, difficulties in relationships, and the overall manageability items.

I also will look at if there is certain items that are — because certainly the items are, kind of, shown in other risk assessment tools, as well, to be related to recidivism, so you know, problems with employment and nonsexual criminality and difficulties in relationships, those are items that are highly related to general recidivism, not necessarily sexual. So those are areas as well that I consider. [84] In cross-examination, Dr. Jellicoe agreed that burnout in determining the risk of recidivism describes the phenomenon of decreasing risk with increasing age and that is generally accepted that burnout exists.

There are studies supporting that general proposition. She agreed that there are theories as to why this phenomenon may occur such as testosterone reduction, physical difficulties, and lower libido, but she was not prepared to accept any such theory as an explanation. She did agree that studies have shown that even with anti-social personality traits and behaviours, recidivism still drops. She accepted that the phenomenon begins around age 40 and is most commonly demonstrated by age 60.

She further opined that while there is reduced risk of reoffending, this does not translate to any particular person’s risk reducing. Burnout is more of a criminological effect noticed at the group level. [85] Finally, Dr. Jellicoe confirmed that the instruments she relied upon to predict risk tend to rate Aboriginal offenders as higher risk but that the instruments still have a moderate degree of predictive accuracy for Aboriginal offenders.

[86] The foregoing coupled with the fact that despite having completed the intensive sexual offenders program, yet having failed to incorporate what he learned into his behaviours as evidenced by the predicate offences, leads to the inexorable conclusion that Mr. Natomagan is highly likely to recidivate sexually as a result of his failure to control his sexual impulses. 3. Conclusion: [87] The Crown has also established that Mr. Natomagan satisfies the criteria for designation as a dangerous offender pursuant to s. 753(1)(b). V.

Sentence [88] As I have said, the Crown has argued that an indeterminate sentence is appropriate. The appropriate sentence to be imposed upon Mr. Natomagan is determined by reference to s. 753(4) and 753(4.1) and the general sentencing provisions of the Criminal Code , paying particular attention to the fact that Indigenous offenders are over-represented in our jails. [89] I am indebted to Justice Renke who, in R v Scrivens [2019] ABQB 700, commencing at paragraph 521, exhaustively explained the law applicable to the analysis as follows: A.

Principles Governing Dangerous Offender Sentencing [521] Subsections 753(4) and (4.1) provide as follows: 753(4) If the court finds an offender to be a dangerous offender, it shall (

a) impose a sentence of detention in a penitentiary for an indeterminate period; (

b) impose a sentence for the offence for which the offender has been convicted — which must be a minimum punishment of imprisonment for a term of two years — and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or (

c) impose a sentence for the offence for which the offender has been convicted.

(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(

b) or (

c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. 1. Dangerous Offender Proceedings are Sentencing Proceedings [522] Dangerous offender proceedings are sentencing proceedings. In Boutilier at para 53, Justice Cote confirmed that [53] This Court has consistently affirmed that dangerous offender proceedings are sentencing proceedings: R. v. Steele ... at para. 40; Jones, at pp. 279-80 and 294-95; Lyons , at p. 350.

Accordingly, a sentencing judge in a dangerous offender proceeding must apply the sentencing principles and mandatory guidelines outlined in ss. 718 to 718.2: R. v. Johnson , 2003 SCC 46 , [2003] 2 S.C.R. 357, at para. 23 ; Neuberger, at p. 3-4. These sections of the Criminal Code set out the purpose and objectives of sentencing ( s. 718 ), the fundamental principle of proportionality ( s. 718.1 ) — “the sine qua non of a just sanction” ( R. v.

Ipeelee , 2012 SCC 13 , [2012] 1 S.C.R. 433, at para. 37 ) — and the other sentencing principles that a court “shall” consider before imposing any sentence on an offender (s. 718.2).... [523] Factors relevant in conventional sentencing are relevant to determine the appropriate sentence under ss. 753(4) and (4.1). Justice Cote wrote in Boutilier para 63: [63] For all these reasons, an offender’s moral culpability, the seriousness of the offence, mitigating factors, and principles developed for Indigenous offenders are each part of the sentencing process under the dangerous offender scheme.

Each of these considerations is relevant to deciding whether or not a lesser sentence would sufficiently protect the public .... 2. No Presumption [524] Justice Cote confirmed in Boutilier that s. 753(4.1) does not establish a presumption and does not impose a burden on an offender to demonstrate a “reasonable expectation” that a lesser sentence than indeterminate detention will adequately protect the public: at para 64.

Justice Cote wrote at para 65 that [65] Section 753(4.1) guides the discretion of the judge, who ultimately must determine the fittest sentence in a given case based on the evidence adduced during the sentencing hearing. This Court in Johnson stated that the “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”: para. 44.

Again, s. 753(4.1) is simply a codification of the exercise of discretion required by Johnson in light of the regime’s general purpose of public protection in dealing with offenders presenting a very high likelihood of harmful recidivism. And at para 68: [68] Under s. 753(4.1), the sentencing judge is under the obligation to conduct a “thorough inquiry” into the possibility of control in the community: Johnson , at para. 50 .

The judge considers all the evidence presented during the hearing in order to determine the fittest sentence for the offender: The judge should... take into account all the evidence available before making a determination, which will inevitably require a thorough investigation. Once such an investigation has been conducted, it will be up to the judge to determine the sentence; there is no obligation

on any of the parties to prove on any standard the adequate sentence one way or another. (Neuberger, at p. 4-4.1; see also p. 10-10.) 3. Indeterminate Detention is the Last Option [525] Indeterminate detention is the last option: Boutilier at para 69. “The sentencing judge must impose the least intrusive sentence required to achieve the primary purpose of the scheme:” Boutilier at para 60.

At para 57, Justice Côté wrote [57] It follows that, if the goal of public protection could be achieved in a given case without imposing indeterminate detention, a dangerous offender provision requiring a sentencing judge to declare an offender dangerous and then sentence him or her to an indeterminate period of detention would “overshoot the public protection purpose of the dangerous offender regime”: Johnson , at para. 20 . This accords with the principle in s. 718.2(

d) that “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances” See also R v Cosman , 2018 ABCA 388 at para 43 . 4. Reasonable Expectation [526] Subsection 753(4.1) turns on whether where is a “reasonable expectation” that a lesser measure than indeterminate detention will “adequately protect the public against the commission by the offender of... a serious personal injury offence.” [527] A “reasonable expectation” is not merely a “reasonable possibility” or a hope or a chance.

In R v Lawrence , 2019 BCCA 291 , Justice Saunders wrote as follows at paras 71 and 72: [71] On my reading of the reasons for sentence, the judge did not err in his understanding of s. 753(4.1) I do not read Justice Cote ‘s statement in Boutilier that the 2008 legislative changes codified Johnson , as meaning that the new words in s. 753 “reasonable expectation” are synonymous with the words “reasonable possibility”. [72] This court considered the words “reasonable expectation” in DJS .: [30] ... the dangerous offender sentencing provisions have been amended at ss. 753(4) and (4.1) to permit an indeterminate sentence only where there is a “reasonable expectation” that a lesser measure would adequately protect the public.

There is little doubt that, as stated in R. v. B.A.R . , 2011 BCSC 1313 , this imposes a higher standard than was previously the case in that an “expectation” speaks to a belief that something will ha

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