R v Runions, 2021 ABQB 67

Court of Queen’s Bench of Alberta Citation: R v Runions, 2021 ABQB 67 Date: 20210128 Docket: 180629867Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Dillon Richard Runions Offender Corrected judgment: A corrigendum was issued on January 29, 2021; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice D.A. Labrenz _______________________________________________________ Introduction

[1] On August 16, 2019, Dillion Richard Runions pleaded guilty to one count of aggravated assault contrary to s.268 of theCriminal Code and a further count of breaching an undertaking given to a police officer contrary to s.145 (5.1) of the Criminal Code.The factual circumstances of the aggravated assault involved an unprovoked Mr. Runions slamming a machete into the neck of hisunsuspecting victim, which unleashed a torrent of blood. Mr. Runions’ attack, fairly described as both callous and vicious, was nearlyfatal with the victim surviving only because of timely medical intervention.

Notably, at the time of the machete attack Mr. Runions wasbound by the terms of an undertaking given to a police officer, which stipulated that Mr. Runions should not be in possession of aweapon. The machete that Mr. Runions possessed and used was obviously such a weapon. Both offences occurred on July 20, 2017. [2] After accepting Mr. Runions’ guilty pleas and finding him guilty, the Crown advised that it intended to bring an applicationto have Mr. Runions declared a dangerous offender, and made application for an order to have Mr. Runions assessed under s.752.1 of theCriminal Code. Mr.

Runions did not oppose the Crown’s application for this assessment order. [3] I granted the Crown’s application for an assessment order based on Mr. Runions’ guilty plea to the aggravated assault asconstituting a serious personal injury offence, and because there were reasonable grounds to believe that Mr. Runions might be adangerous offender under s.753 of the Criminal Code or a long-term offender under s.753.1. To borrow the language of Renke J in R vScrivens, 2018 ABQB 1027 at para 96, the assessment order was made “… not based on a finding that [Mr.

Runions] is a risk to thepublic, the [assessment order is] based on a finding of a reasonable likelihood that [Mr. Runions] is a risk to the public.” [4] To be clear, Mr.

Runions did not oppose the Crown’s application for an assessment order nor does he suggested that thepredicate offence was not a serious personal injury offence as it plain that the machete attack qualifies as such under the statutorydefinition of a “serious personal injury offence” found in s.752 of the Criminal Code. [5] The reasonable grounds standard itself involving a finding by me that credibly-based probability had replaced suspicion:Hunter v Southam, (SCC), [1984] 2 SCR 145 at p 167.

The “reasonable grounds” test itself is not proof on a balance ofprobabilities, or one that excludes any other rational inference; rather, it is something less than a balance of probabilities, and measuredby the point at which subjective grounds become justifiable when viewed objectively: R v Ha, 2018 ABCA 233 at para 32. [6] Finally, as a preliminary matter, I conclude beyond a reasonable doubt that the Crown has satisfied all proceduralrequirements of the Criminal Code as follows: 1. As required by s.753(2) the application under subsection (1) was made before I have imposed sentence on Mr. Runions; 2.

Section 753(1) indicates that the application follows the filing of the assessment report under s.752.1(2). Dr. Hashman, a forensicpsychiatrist, filed his report dated October 25, 2019 on November 4, 2019. 3. Pursuant to s.754(1)(a), the court may not hear an application made under this Part unless the Attorney General of the province hasconsented to the application. The Attorney General of Alberta consented to this application on June 4, 2020. 4. Pursuant to s. 754(1), With the exception of an application for remand for assessment, the court may not hear an application under this Part unless… (

b) at least seven days notice has been given to the offender by the prosecutor following the making of the application, outlining thebasis on which it is intended to found the application; and (

c) a copy of the notice has been filed with the clerk of the court or the provincial court judge, as the case may be. [7] In relation to this last procedural requirement under s.754(1) of the Criminal Code, I was initially concerned that the Crownhad failed to fulfill its obligation to give Mr. Runions the requisite seven days notice as required by this section, and that the hearing hadproceeded without jurisdiction.

This concern arose because I could not locate the Crown’s notice either filed as a separate document onthe court file, or as an inclusion to the voluminous matters filed by the Crown in the various exhibits at the dangerous offender hearingitself. [8] On September 28, 2020 the parties appeared back before me to address the question of notice under s.754(1) of the CriminalCode.

At the time, the Crown confirmed that formal notice was drafted under s.754(1) but due to an oversight was neither sent to thedefence nor filed with the Court. [9] Nevertheless, the Crown took the position that the oversight was not dispositive of the issue because of the cumulative effectof the documentation provided to Mr. Runions in advance of the hearing, including correspondence from the Crown to the Defence,which the Crown argued on a purposive approach sufficiently outlined the bases on which it intended to pursue its application to haveMr.

Runions designated as a dangerous offender: R v Corbiere, (ON CA), [1995] OJ No 938 at para 8; R v Bedard,2009 ONCA 678 at para 59-60; R v Gulliver, 2018 ABCA 387 at paras 15-18. [10] The Defence agreed with the Crown by responding that Corbiere was instructive in relation to this issue, and further agreedthat the legal briefs provided to the accused along with the evidential materials in support provided Mr. Runions with the functionalequivalent of the notice required by s.754(1) of the Criminal Code. In the end result, Mr.

Runions agreed that he had not been treatedunfairly in the sense that any procedural unfairness had occurred. [11] In the end result, I agreed based upon the Crown’s submission and Mr. Runions’ concession, that s.754(1) had been compliedwith because of the functional notice and that no procedural unfairness had been occasioned in the circumstances. [12] Having concluded that the Crown has met all of the procedural requirements of the Criminal Code, the Crown took theposition that Mr. Runions ought to be declared to be a dangerous offender and given an indeterminate sentence.

Alternatively, the Crownseeks a determinate sentence for the predicate offence followed by a long-term supervision order. In the further alternative, should Mr.

Runions not be declared to be a dangerous offender, he should be treated as a long-term offender. Finally, should I not agree with any ofthe prosecution’s sentencing positions, the Crown alternatively argues that an appropriate sentence for the aggravated assault would be 6years incarceration consecutive to the sentences presently being served, reduced by 1 year incarceration for Gladue factors and totality,resulting in a net sentence of 5 years incarceration consecutive. [13] Mr.

Runions argues that I should not find him to be a dangerous offender nor a long-term offender, and that a determinatesentence of 2 ½ years incarceration consecutive to the sentence presently being served by Mr. Runions is appropriate. [14] Having determined that Mr. Runions has been convicted of a “serious personal injury offence” and having satisfied myselfthat all of the necessary procedural requirements have been met, I must go on to consider whether the Crown has established beyond areasonable doubt that Mr.

Runions’ behaviour or conduct supports a declaration that he is a dangerous offender. [15] Designation as a dangerous offender requires two separate analyses: the pattern analysis and the threat analysis. [16] The first inquiry asks whether the Crown has proven beyond a reasonable doubt that Mr. Runions has engaged in a pattern ofconduct under ss.752(a)(

i) or (ii)? The failure to establish such a pattern would be fatal to the Crown’s application to declare Mr. Runionsto be a dangerous offender, and it would also prevent the related finding under s.753.1(2)(

b) declaring Mr. Runions to be a long-termoffender. [17] The second inquiry asks, assuming the first is answered in the affirmative, whether the Crown has proven beyond a reasonabledoubt that Mr. Runions remains a threat to the life, safety or physical well-being of others? In other words, before Mr. Runions may bedesignated as a as a dangerous offender, I must be satisfied on the evidence that Mr. Runions poses a high likelihood of harmfulrecidivism and the pattern of violent conduct is intractable; that is, a pattern of violent behaviour that Mr.

Runions is unable to surmount.When considering the question of whether the high likelihood of harmful recidivism has become an intractable pattern of conduct, I mustconsider the treatability of Mr. Runions to the extent that it informs the prospective threat posed by Mr.

Runions to the life, safety orphysical well-being of others. [18] When considering the second inquiry it should be noted that the Crown need not prove beyond a reasonable doubt that Mr.Runions will reoffend, but instead must prove a likelihood of causing death, injury or severe psychological damage through a failure torestrain future behaviour: R v Neve, 1999 ABCA 206 at para 114; R v Lyons, (SCC), [1987] 2 SCR 309. In this regard,The Supreme Court of Canada has recognized that requiring the Crown to prove beyond a reasonable doubt that Mr.

Runions wouldreoffend is an impossible burden: R v Currie, (SCC), [1997] 2 SCR 260. The Alberta Court of Appeal succinctly statedin R v Carleton,

(1981) ABCA 220 at paras 11-12 as follows: It is that past conduct with which the Judge is concerned, and he is to be satisfied beyond reasonable doubt that that conduct is such thatit gives rise to the likelihood of future injury to others. The likelihood is not as to the probability of whether this offender will in fact offend again – the likelihood flows from the conduct of theoffender up to the time of the hearing. [19] Beyond the designation consideration of whether Mr. Runions should be declared to be a dangerous offender, I must thenmove on to the penalty stage.

At the penalty stage, all of the evidence adduced during the hearing must once again be considered, albeitfor a different purpose related to different legal criteria. At the penalty stage, the question I must ask is whether something less than anindeterminate sentence will adequately protect the public from Mr. Runions committing a serious personal injury offence? [20] Section 753(4) of the Criminal Code lists the three sentencing dispositions open to the sentencing judge at the penalty stage: (

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

b) impose a sentence of a term of imprisonment of at least two years for the predicate offence, followed by a period of long-termsupervision of not more than 10 years; or (

c) impose a sentence for the predicate offence. The Statutory Framework [21] This application is governed by ss.752-761 of the Criminal Code. [22]

Section 753 provides the statutory criteria that must be satisfied before Mr. Runions may be designated as a dangerousoffender. Section 753(1)(

a) provides as follows: (

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

a) of thedefinition of that expression in

section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being ofother 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 afailure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychologicaldamage 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 on otherpersons 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 a brutal nature asto compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behaviouralrestraint; [23] The Crown did not rely upon s.753(1)(a)(iii), and as a consequence I will not consider that subsection further. DefenceCounsel, on the other hand, did not argue that the Crown has not proven beyond a reasonable doubt the patterns required by eitherss.753(1)(a)(

i) or (ii); Defence Counsel’s argument instead focused upon Mr. Runions’ contention that he is not a threat to the life, safetyor the physical or mental well-being of other persons. In essence, Mr.

Runions put forth the position that he treatable and that the patternof his violent in and of itself does not mean that he cannot or will not overcome the criminogenic factors that lead to his violent offendingin the recent past. [24] It is important for the purpose of considering the two statutorily proscribed patterns of behaviour, to recognize that I needonly be satisfied that the necessary criteria are met in one of the categories in order to find that Mr. Runions is a dangerous offender.

Thatis because the subsections are disjunctive in nature: R v Lewis, (1984) (ON CA), 53 OR (2d) 608 (ONCA); R v Neve,1999 ABCA 206. Pattern of Behaviour [25] Both ss.753(1)(a)(

i) and (ii) require a finding of a behavioural pattern. Section 753(1)(a)(

i) requires a patter of repetitivebehaviour and s.753(1)(a)(ii) requires a pattern of persistent aggressive behaviour. The term, “pattern”, is itself not defined in theCriminal Code. Beyond, a consideration of whether or not the Crown has met its onus beyond a reasonable doubt to establish a “pattern”,as I noted above, the second inquiry asks whether Mr. Runions remains a threat to cause injury or death. [26] I will first consider whether the Crown has established beyond a reasonable doubt that Mr. Runions has engaged in a patternof conduct under ss.753(1)(a)(

i) or (ii). [27] To demonstrate a pattern, three types of evidence will generally be considered: 1. The offender’s criminal acts and record; 2. Evidence relevant to those acts; and 3. Psychiatric opinions regarding the conduct. [28] It is important, however, to distinguish between the evidence relevant to the pattern assessment as opposed to the evidencerelevant to the threat assessment. At the pattern stage, the focus is on actions, not thoughts.

While the thoughts of an offender might berelevant to explain conduct and to aid in the determination of whether the requisite pattern has been established, “the dangerous offenderlegislation is designed to capture dangerous offenders, not dangerous thinkers:” Neve at para 131. [29] As I noted earlier, to qualify the behaviour under consideration as being part of the pattern, it must be criminal in nature andinvolve some degree of violence/attempted violence, endangerment/likely endangerment, or conduct causing/likely to cause severepsychological damage. [30] Since the predicate offence by statutory definition must involve either the use or attempted use of violence or lifeendangerment or likely endangerment, it follows logically that any consideration of the offender’s past behaviour must also involvesome degree of violence or likely endangerment (whether more or less serious than the predicate offence); otherwise, it cannot be saidthat the predicate offence is part of the pattern: Neve, at para 110. [31] The pattern of past behaviour must also be repetitive or persistent.

Therefore, evidence of a single incident of violence oraggression will not meet the threshold: Lyons at para 69; Neve at para 113; however, the pattern need not involve a long-standing seriesof criminal acts as a pattern may be found to be established where the predicate offence was only the offender’s second conviction: R vLangevin, (1984) (ON CA), 45 OR (2d) 705 (ONCA); R v Scrivens, 2019 ABQB 700 at para 56; R v Byers, 2011ONSC 4159 at para 6, appeal dismissed 2017 ONCA 639. [32] The similarity or pattern can be found not only in the type of offence, but also in the degree of violence or aggressionthreatened or inflicted.

As the Alberta Court of Appeal stated, “...the mere fact that an offender commits a variety of crimes does notmean that no pattern exists. There is no requirement that the past criminal actions all be of the same or similar form, order orarrangement; although if this has occurred, it may well suffice”: Neve, at para 111. [33] An illustration of a pattern founded upon the degree of violence or aggression is found in R v Warawa, 2011 ABCA 294. Theoffender pleaded guilty to three offences: two counts of discharging a firearm with intent to wound, maim, disfigure or endanger life andone count of aggravated assault.

The three offences involved the use of a handgun; the first shooting followed the consumption of crackcocaine at a residence, and the subsequent request by the homeowner for the offender to leave his home. The second shooting, one weeklater, resulted from an altercation arising out of a potential drug transaction. The offender shot at one individual, missed, and struck aninnocent bystander in the face with a bullet. Some eleven years earlier, the offender had been convicted of attempted murder when heshot a store owner in the neck during the robbery of a jewellery store.

The shooting itself occurred in the presence of the police. Theoffenders’ present convictions were over a decade later than the jewellery store robbery. Notwithstanding the significant differences inthe circumstances and the offender’s motivation, the offender on appeal did not challenge the finding of a “pattern” by the sentencingjudge for the purposes of s.753 of the Criminal Code. [34] The significance and relevance of the common elements of a pattern is determined by what they tend to show. For example,

for the purposes of s.753(1)(a)(i), they need to show repetitive behaviour, the failure to restrain the behaviour, and that there has been injury arising from that failure.

The British Columbian Court of Appeal in R v Dow, 1999 BCCA 177 at para 25 appropriately described what is meant by a “pattern” as follows: I add that it is the very essence of a pattern that there be a number of significant relevant similarities between each example of the pattern that is being considered, but that, at the same time, there may be differences between each example, some of them quite distinctive, so long as the differences leave the key significant relevant elements of the pattern in place. That is, after all, what is meant by a pattern. We talk of a pattern in dress-making.

That means that each example is assembled from pieces that are cut in the same proportions and that fact, in itself, is what constitutes the common element of the pattern. But the size of the pieces and of the assembled item of clothing, the fabric of which they are made, and the colour of the item of clothing may all be different without affecting the identity of the pattern. The same is true of patterns of decorative tiles, and of many other items. The aspects of the object which are relevant to a description of the pattern must all be similar in their essential characteristics.

But other aspects of the items, which are not essential to a description of the relevant pattern itself, may be markedly different from one example to another. [ 35 ] A pattern need not share the level of similarity as is necessary for similar fact evidence, nor must it consist of a certain minimum number of incidents: R v Casemore, 2009 SKQB 306 at para 9 , dismissed on further appeal at 2011 SKCA 14 . [ 36 ] A cataloguing of some of factors that might be considered when identifying a “pattern” of conduct was usefully identified by Justice Renke in R v Scrivens, 2019 ABQB 700 at para 60 as follows: • what was done • what was done before, during, or after what was done • the nature of what was done (how it was done) • the object of what was done (to whom it was done) • the context in which the acts occurred (e.g. location, time of day, social context) • the purpose for which the acts were performed. [ 37 ] The predicate offence must obviously form part of the same pattern.

Mr. Runions’ Behaviour – Elements of the Pattern Analysis [ 38 ] The question here involves whether the Crown has established the necessary pattern of behaviour for which the predicate offence forms a part? For the purposes of s.753(1)(a)(

i) the pattern must involve repetitive behaviour and for the purposes of s.753(1)(a) (ii), the pattern must involve persistent aggressive behaviour. [ 39 ] The Crown relies upon five entries from Mr. Runions’ criminal record as forming the necessary pattern. The Crown did not seek to rely upon any uncharged criminal conduct as part of the requisite pattern of behaviour. Mr. Runions’ criminal record is reproduced as follows (The bolded offences are the offences the Crown relies upon as constituting the necessary pattern): Date of Conviction/Location Charge(

s) Sentence 2009-02-09 Calgary AB

(1) Mischief – s.430(1)(a)

(2) Theft under $5,000 – s.334(b) (1) 1 Day & Probation 12 Months (2) $250 I-D 4 Days 2009-04-20 Calgary AB

(1) Assault – s.266 (2) Possession of Property obtained by Crime under $5000 – s.355(b) (1-2) Suspended Sentence and Probation 1 Year on Each Charge 2010-04-13 Okotoks AB Youth Justice Court

(1) Failure to Appear – Sec 145(5) (1) 1 Day & (4 Days presentence custody)

2010-07-28 Calgary AB 2010-07-28 Cont. Calgary AB

(1) Obstruction -Sec 129(a)

(2) Fail to Comply with Probation Order

(3) Fail to Comply with Recognizance – Sec 145(3)

(4) Fail to Attend Court – Sec 145(2)(a)

(5) Theft Under $5,000 – Sec 334(b)

(6) Mischief – Sec 430(1)(a)

(7) Unlawfully in Dwelling House – Sec 349(1)

(8) Mischief – Sec 430(1)(d)

(9) Fail to Comply with Recognizance – Sec 145(3) (1-6) 1 Day and Probation 12 Months on each Chg (7) 1 Day & Probation 12 Months (88 Days pre-sentence custody) (8-9) 1 Day on each Chg (7 Days presentence custody) 2011-03-18 Calgary AB

(1) Theft Under $5000 (1) 1 Day 2012-12-04 Calgary AB

(1) Break Enter and Commit Robbery – Sec 348(1)(b)

(2) Assault with a Weapon – Sec 267(a)

(3) Disguise with Intent – Sec 351(2)

(4) Possession of a Weapon – Sec 88(1) (1-4) 75 Months & Mandatory or Discretionary Weapons Prohibition – Sec 109 2013-03-05 Calgary AB

(1) Assault – Sec 266 (1) 45 Days Consecutive to Sentence Serving 2017-10-10 Calgary AB

(1) Possess Controlled Substance Sec 4(1) CDSA

(2) Fail to Attend Court – Sec 145(5)

(3) Mischief – Sec 430 (1)(a)

(4) Obstruct Police Officer – Sec 129(a)

(5) Theft Under $5000 – Sec 334(b) (1-5) 1 Day (22 Days presentence custody) 2018-05-28 Calgary AB

(1) Aggravated Assault – Sec 268

(2) Breach of Undertaking – Sec 145(5.1)

(3) Aggravated Assault – Sec 268

(4) Breach of Undertaking – Sec 145(5.1) (1) 2 Years and 1 Day (2) 90 Days Concurrent (3) 3.5 Years Consecutive (4) 90 Days Concurrent

2018-06-14 Calgary AB

(1) Possess Weapon for Dangerous Purpose – Sec 88(1) (2 chgs)

(2) Possess Ammunition Contrary to Prohibition Order – Sec 117.01(1)

(3) Breach of Undertaking – Sec 145(5.1) (1-3) 6 Months Global consecutive to all other sentences [ 40 ] The following provides an overview of the conduct underlying the offences that the Crown relies upon as forming part of the pattern along with an overview of the conduct underlying the predicate offence.

a) April 20, 2009 – s.266 Assault et al. – Suspended Sentence and Probation 1 Year: offence date June 28, 2008 [ 41 ] Mr. Runions and two other individuals approached the victim on the LRT platform, hit and pushed him, while removing and stealing the victim’s sunglasses and baseball hat. Mr. Runions was found in possession of the sunglasses a few minutes later by the police. Mr. Runions advised the sentencing judge (through counsel) that he was very intoxicated and did not really remember the occurrence. Mr. Runions pleaded guilty.

b) December 4, 2012 – s.348(1)(

b) Break and commit robbery et al. – 75 Months Incarceration: offence date December 29, 2010 [ 42 ] Mr. Runions agreed to certain facts in writing in support of his guilty pleas. He, along with four others, broke into a dwelling house. All were masked. At least three of the men were carrying knives when they entered the house. One was carrying a bat. By the end of the altercation, all five men were armed either with weapons they brought to the residence, or weapons they found in the residence.

Three of the men confined two occupants of the house on a couch while the other men ransacked the house looking for money and drugs. They threatened to kill the two household occupants. The two occupants fought. Both were injured during the fight and so was Mr. Runions. [ 43 ] The group of men, including Mr. Runions, identified themselves when breaking through the door as belonging to “Diamond and Deuces” an Indigenous street gang and yelled “this is D & D territory”. One of the resisting occupants, Mr.

A., owned a collectable machete, which one of the invaders found in the kitchen and introduced to the fight. [ 44 ] The fight against the home occupant, Mr. A., was four on one. Mr. A. did not have a weapon. Mr. A was severely injured and was bleeding. Mr. Runions was fighting with Mr. A. and also got cut. Eventually, the men fighting with Mr. A. ran out of the house through the back door. [ 45 ] Mr. H., the other occupant, was still fighting with one of the home invaders after the other four left. In the course of this fight, Mr.

H. smashed his assailant’s head into a dishwasher and threw him down the back steps into the yard. Mr. H. saw that one of the other four men was coming back and carrying the machete that had been taken from the kitchen. Mr. H. yelled to Mr. A. to “get the gun”, which was a ruse designed to dissuade any further altercations. [ 46 ] The five accused took the following: a small baggie containing 4 or 5 ounces of marihuana, an envelope containing $700 to $900 in cash, the machete, and a cell phone and charger. [ 47 ] Mr. A was injured. He was taken to hospital and a plastic surgeon operated on his hand the next day.

The surgery repaired complex lacerations to his left hand and minor lacerations on the right hand. Mr. A. was said to have continued problems with the proper functioning of his hand. Mr. A. also had lacerations to his face and a stab wound on his back. He had bruising and swelling to his face. [ 48 ] Mr. H. was also injured when he was pushed down during the fight and consequently hurt his tail bone. He also had cuts and bruising and his hands were bruised and swollen for weeks after the assault. Significant damage was done to the house. [ 49 ] When the police apprehended Mr.

Runions later the same day he lied about his involvement and told police that he had cut his hand preparing food earlier in the day. [ 50 ] Mr. Runions pleaded guilty and there was a joint submission of six to seven years incarceration. Of interest, Mr. Runions (through his then counsel) disavowed himself of any consideration of a suggested Indigenous heritage and waived a Gladue report, but the sentencing judge was advised that Mr. Runions was primarily raised in foster homes, and that Mr.

Runions had been sexually assaulted by a foster parent and one of his mother’s boyfriends during the course of his upbrining. [ 51 ] Mr. Runions expressed remorse saying he felt sorry for his participation in the home invasion.

c) March 5, 2013 – s.266 Assault – 45 Days consecutive Incarceration: offence date

December 15, 2012 [ 52 ] Mr. Runions agreed to facts outlined by the Crown when the sentencing judge was informed that Mr. Runions had hit another inmate on the protective custody unit in the Calgary Remand Centre. Mr. Runions hit Mr. B. from behind, on the right side of his face, with sufficient force that caused Mr. B. to be knocked off his feet. No injuries were reported. [ 53 ] Mr. Runions advised the sentencing judge through legal counsel that the incident involved an argument over prison issues.

d) May 28, 2018 – s.268 Aggravated Assault et al. – 2 Years and 1 Day Incarceration: offence date July 1, 2017; s. 268 Aggravated Assault – 3.5 Years Consecutive: offence date July 30, 2017 [ 54 ] Mr. Runions entered guilty pleas. In relation to the first aggravated assault Mr. Runions agreed that he was involved in a drug transaction with Mr. R. Mr. Runions was accompanied by Ms. W. [ 55 ] During an argument, Mr. Runions pulled out a knife and stabbed Mr. R. in the upper right chest area underneath the right armpit, causing extensive injuries to Mr. R. [ 56 ] Mr.

R was transported to hospital early in the morning on July 2 nd complaining of difficulties breathing. Medical staff assessed him and treated him for a hemothorax stab wound to the right upper chest. He had a chest tube inserted in his chest for the purpose of draining fluid from his lungs. He was in hospital for seven days. At the time, Mr. Runions was bound by an undertaking not to possess weapons. [ 57 ] In relation to the second aggravated assault, Mr. Runions agreed that he was engaged in a verbal argument with Ms. A because Ms. A. called Ms. W. a “slut”. Mr. Runions stabbed Ms.

A. with a knife twice in the back (in the lower flank area) and once in the left pectoral muscle in the chest. [ 58 ] Ms. A. was treated by paramedics at the scene, she was transported to hospital where she was found to be in a life-threatening condition with a hemothorax. Ms. A received numerous units of blood and had a tube inserted in her chest for the purpose of draining fluid. Ms. A. was held in hospital for nearly one month. [ 59 ] Once again, Mr.

Runions was bound by an undertaking not to possess any weapons. [ 60 ] A Gladue report and a presentence report were before the Court; however, the sentence imposed was the product of a joint submission made to the sentencing judge. [ 61 ] Defence Counsel on behalf of Mr. Runions referred to Mr. Runions’ Métis background and also to the tragic circumstances of Mr. Runions’ upbringing, and advised the sentencing judge that Mr. Runions was addicted to methamphetamine. Counsel also told the sentencing judge that it was probable that Mr.

Runions had some type of mental illness. [ 62 ] Defence Counsel also represented to the court that Mr. Runions had decided to distance himself from his gang lifestyle, and that consequently Mr. Runions had taken steps to cover a swastika tattoo with a Canadian flag maple leaf tattoo. The sentencing judge was also told that Mr. Runions anticipated engaging in programming while incarcerated, including Indigenous healing initiatives in an effort to avoid similar incidents in the future. [ 63 ] Once again, Mr. Runions indicated to the sentencing judge that he felt remorseful for his actions.

e) The Predicate Offence – August 16, 2019 – s. 268 Aggravated Assault et al.: offence date July 20, 2017 [ 64 ] Mr. Runions, who once again pleaded guilty, admitted that on July 20, 2017, that he joined Mr. K. and another male named Ryan in a park located in southwest Calgary. [ 65 ] Mr. Runions knew Ryan, and noticed that Mr. K. was wearing a gold chain on his neck. Mr. Runions told Mr. K. that he liked his chain, and asked whether Mr. K. would sell it. Mr.

K said no and removed the chain from his neck, placing it into his pocket. [ 66 ] The males eventually left the park and after travelling a short distance went into an alley. Mr. K. reported that he heard the click of a firearm as Ryan pulled out an imitation gun. Mr. K. thought he was going to be robbed. At the same time, Mr. K. saw Mr. Runions brandishing a large machete in his hand. Mr. K. attempted to move away as Mr. Runions slammed the machete into the left side of Mr. K.’s neck. [ 67 ] Mr. K. later told police that it felt like a “shower of blood” sprayed out of his neck. Mr.

K. responded by running down the alley, yelling for help, while applying pressure to his neck with his left hand. At some point, Mr. K. looked back and saw Mr. Runions wiping the machete in some bushes. [ 68 ] Passersby assisted Mr. K until paramedics arrived and applied clamps in an attempt to stem the blood loss. Mr. K. was transported to the hospital in life-threatening condition. [ 69 ] Later, doctors estimated that Mr. K. lost two litres of blood before arriving at the hospital.

[ 70 ] Upon arriving at the hospital, Mr. K. underwent emergency surgery and a blood transfusion to treat a “severe life-threatening stab wound to his left neck”, involving a laceration of the left external jugular vein and a small non-displaced fracture of the inferior aspect of the mandible. [ 71 ] Mr. K. was discharged from hospital after four days, but experienced impaired functioning of the musculature of his face, resulting in the need to relearn how to eat and speak properly. Mr. K. dealt with uncontrolled slurring of his speech and spitting along with impaired mouth function.

A large scar now runs from behind Mr. K.’s left ear all the way to his chin on the left side of his face. [ 72 ] Emotionally, Mr. K. said that he thought that he was going to die, and that he suffers from ongoing post-traumatic stress, nightmares, fear, anxiety, along with sleeplessness. Mr. K. indicated that he relives the event every time he looks into a mirror because of the reminder occasioned by the viewing of his injuries. [ 73 ] Mr. Runions admitted that the attack was entirely unprovoked and that Mr. K. was unarmed and taken by surprise. [ 74 ] At the time of the machete attack, Mr.

Runions was on judicial interim release and bound by an undertaking given for his release that prohibited him from possessing any weapons. Mr.

Runions’ Explanations for the Suggested Pattern offences and a Preliminary Comment [ 75 ] The extensive documentation that I was provided with during the hearing contains reports and notes relating to the following: both federal and provincial custodial institutions; various mental health assessments (including psychiatric and psychological reports); medical reports; past decisions of the Parole Board of Canada; transcripts of previous criminal convictions; prior court ordered assessments including presentence reports; probation officer reports and documentation; parole officer reports and documentation, etc. [ 76 ] A recurrent theme that can be found in the written materials that I was provided with concerns the unreliability of Mr.

Runions as a narrator: both with respect to historical events his life, and with respect to more current aspects of the overall chronology. A review of the documentation makes it abundantly clear that Mr. Runions frequently provided different and conflicting accounts of his childhood history, his psychiatric diagnoses, his criminal behaviour and the past traumatic experiences that Mr. Runions suffered from in his upbringing. [ 77 ] Another recurrent theme is that Mr.

Runions self-reported that he turned to street gangs at a very early age as a means of earning a livelihood and to further some semblance or sense of belonging to a family. Once again, Mr. Runions provided differing accounts as to when he first associated himself with a street gang. There were also inconsistencies as to the chronology and timing that Mr. Runions provided in his various explanations as to which gang he belonged to in any given period. [ 78 ] In this regard, it is important to note that Mr.

Runions disputes his present involvement with gangs while incarcerated and suggests that he will not be associated with street gangs upon his release from custody. In support of his submission in this regard, Mr. Runions points out that documentation from Correctional Services Canada dated from June of 2020, clearly indicates that during the present period of incarceration, Mr. Runions has taken active steps to remove himself from any association with the various security threat groups (gangs) that can be found within a custodial setting.

The Correctional Services Canada security assessment indicates clearly that Mr. Runions is said to be presently incompatible with any security threat group. [ 79 ] The difficulty with any definitive assertion that Mr. Runions has purposively and with some finality removed himself from his former gang lifestyle is two-fold. First, Mr. Runions does not hesitate to lie, although strangely Mr. Runions often lies to his own detriment by suggesting that he has committed murders, stabbings, or other offences for which there is no credible evidence supporting such an assertion.

This is troubling because it tends to support the conclusion that Mr. Runions views serious acts of violence as aspirational, as if such violent acts could be seen as something honourable, or something over which to boast. [ 80 ] Second, it is difficult to accept that Mr. Runions’ has abandoned his gang lifestyle with any finality based upon his efforts to distance himself from security threat groups while incarcerated. I say this because it is nothing new. [ 81 ] For example, following Mr.

Runions’ incarceration in December of 2012 for the home invasion robbery, at a time that he was being pre-screened for placement in the Saskatchewan Penitentiary in November of 2014, Mr. Runions similarly disavowed himself from any associations with security threat groups. At the time, Mr. Runions advised that the idea of returning to prison served as a deterrent from his becoming involved in the gang lifestyle again. [ 82 ] Yet, despite his assertion, Mr.

Runions told the forensic social worker Laura Olsen (who was part of the multidisciplinary team, along with a forensic psychologist and a forensic psychiatrist, who performed the current s.752.1(2) Criminal Code assessment) at the Southern Alberta Forensic Psychiatry Centre [“SAFPC”] that he joined the Blood Money Crime Family in 2015 and that when he was released from custody he “was picked up by gang members right from the gate”. Mr. Runions, as I will review below, also admitted that the predicate offence was a gang related act of violence. [ 83 ] I do not accept Mr.

Runions’ assertions that he will no longer associate himself with street gangs as being credible or genuine, nor do I accept this assertion as being plausible. The Predicate Offence [ 84 ] Mr. Runions provided two accounts as to what precipitated the predicate offence to Ms. Olsen. [ 85 ] Mr. Runions initially told Ms. Olsen that he had received a phone call from Ryan and that Ryan asked Mr. Runions to meet

him in the nearby park. Mr. Runions said that Ryan explained that they needed to make certain that Mr. K. did not attend court by making sure that “he would no longer be living”. Mr. Runions said that he initially met Ryan at a restaurant, eventually meeting with six people - one of which was Mr. K. Mr. Runions said that he made small talk with Mr. K. and asked about the cost of the necklace the victim was wearing. Mr. Runions indicated that he did not intend to steal the necklace, but that Mr. K. took his comment the wrong way. [ 86 ] Mr.

Runions then said that he and Ryan left the group to go to an alley to smoke methamphetamine (with Mr. K.’s pipe), with Mr. K. following to smoke with them, and that Ryan suddenly took out what appeared to be a gun. Mr. Runions said that he did not know what the plan was, nor that the gun was fake, and Mr. Runions then decided to strike the victim in the neck with the machete as he thought “maybe I should take care of this guy”. [ 87 ] Later, Mr. Runions said that Ryan paid him in money and drugs, but that Mr. Runions felt that he was not paid enough. Mr.

Runions claimed that he carried the machete as a means of protection. [ 88 ] However, later in the same interview, Mr. Runions provided Ms. Olsen with another description of what had occurred. [ 89 ] Mr. Runions said that at the time of the incident he was high on methamphetamine and feeling paranoid. For some unexplained reason, Mr. Runions believed that Ryan and the victim were working together, and that the two had a plan to hurt Mr. Runions in the alley. Mr.

Runions was unable to provide details regarding the relevance of his paranoia to his use of the machete on the victim (and not Ryan) but said at some point in the interview, Mr. Runions told Ms. Olsen that he trusted Ryan and furthermore that “it’s a loyalty thing”. [ 90 ] As to Mr. Runions feelings regarding his use of the machete, Mr. Runions expressed to Ms. Olsen that he was not paid adequately and that he was glad the victim lived. Mr. Runions stated, “it wasn’t worth it in the end because of the jail time...I kind of regret it”. When asked about the injuries Mr. K. suffered, Mr.

Runions said, “I think I was supposed to just beat the shit out of him...I didn’t think about how bad I hurt him, I didn’t know the blade was that sharp”. Mr. Runions also claimed not to have spent time afterward thinking about the violent act that he had occasioned upon Mr. K. [ 91 ] When Mr. Runions met with the forensic psychologist, Deena Nessman, for the purposes of a risk assessment by Ms. Nessman, Mr. Runions spoke some more about the attack on Mr. K. Mr. Runions said that he was summoned to meet a gang member, and although he considered himself to be a high-level enforcer, Mr.

Runions brought his machete because he was paranoid that he would be shot. Mr. Runions indicated that he was of the impression that he was to beat up Mr. K. to prevent Mr. K. from testifying in court, and that Mr. Runions would be paid for his efforts in money and drugs. [ 92 ] Once in the alley, at the time that Ryan pulled out the fake firearm, Mr. Runions said he did not know it was fake, and that he felt paranoid that Ryan and Mr. K were planning to kill him. Mr. Runions said he was “angry and paranoid”, and responded by pulling out his machete and hitting Mr. K. in the neck with it. According to Mr.

Runions, Ryan then convinced Mr. Runions that he did not intend upon killing Mr. Runions. Ryan also told Mr. Runions that Mr. Runions was only supposed to have scared Mr. K. (as opposed to killing him), but Ryan added that Mr. Runions would not be in trouble with his gang had Mr. K. been killed. The June 2008 Assault on the LRT Platform [ 93 ] Mr. Runions told Ms. Nessman that the victim was selling drugs on the same block as his friends. He reported taking money, while another friend stole the sunglasses. Mr. Runions claimed the assault was not really violent because the victim “was punched a couple of times”.

At the time, Mr. Runions said that he felt justified. The 2012 Home Invasion Robbery [ 94 ] Mr. Runions told Ms. Olsen that the home invasion was “retarded” and that the situation could have been “planned out better”. Mr. Runions said that the home invasion was a sudden decision and that he and his co-accused wanted money and drugs from the victims. Mr. Runions denied initiating the violence and said that it was “unnecessary”, but then expressed that he was surprised that he was convicted because he did not anticipate that the victim would attend court. Mr.

Runions explained this statement by saying that the victim was supposed to have been “marked”, meaning that he and his co-accused contacted various gang affiliates to have the victim hurt or killed such that the victim would be unable to attend court. [ 95 ] Mr. Runions told Ms. Nessman that he and other gang members were directed by their leader to go to the victim’s home and take drugs and money. Mr. Runions, himself, was to be paid with drugs and money. He reported that the victim was aware and had been warned not to sell drugs. When they entered the residence, according to Mr.

Runions, the victim was not surprised by the presence of the invaders, and the victim directed them to the drugs and money in the cupboard. Mr. Runions claimed that the situation was not supposed to be violent; however, his leader was upset with the limited drugs and money, and demanded from the victim’s information as to where the rest of the drugs and money could be found. Mr. Runions said that the leader threatened the victim and his friend and the situation became out of control. According to Mr. Runions, the victim grabbed the machete and when Mr. Runions took back the machete, Mr.

Runions suffered a severe cut to his finger. Mr. Runions said that he ran from the scene only to have realized that one of the gang members had been left behind. Mr. Runions said that he was frustrated because the incident was not supposed to be violent, and because the individual who initiated the violence was not convicted. Mr. Runions also told Ms. Nessman that he cut the throat and cut off the fingers of the victim. This explanation is patently not true. The 2013 Assault [ 96 ] Mr. Runions told Ms. Nessman that he had a consensual fight with Mr. B in the Calgary Remand Centre, but then clarified that Mr.

B. had made a complaint to the correctional staff that someone else had assaulted him, and that Mr. Runions then decided to “handle it” by assaulting Mr. B. in retaliation for Mr. B having complained in the first place.

The 2017 Stabbing of Mr. R. [ 97 ] Mr. Runions spoke to Ms. Olsen about this stabbing. According to Mr. Runions, he was approached by Mr. R after selling drugs to his friend. Mr. Runions said that Mr. R. “hit on him”, meaning that Mr. R. was acting flirtatiously. Mr. Runions said that he repeatedly asked Mr. R. to leave him alone and not touch him; however, Mr. R did not comply with the numerous requests. After Mr. R. attempted to hug Mr. Runions, Mr. Runions said that he stabbed Mr. R. Mr. Runions added that Mr. R. did not know that he had been stabbed until the next morning. [ 98 ] Mr. Runions told Ms.

Nessman that he was suffering from active hallucinations at the time of the stabbing, and Mr. Runions believed that he was in a military-type situation. Mr. Runions reported attending the location of the stabbing, Alpha House, for the purpose of obtaining water. Mr. Runions elaborated on his description, by stating that his normal reaction would have been to punch Mr. R., but instead he stabbed him. He knew the stabbing was serious, but walked away and went to a shopping mall with his girlfriend. [ 99 ] Following the stabbing incident, Mr.

Runions said that he was physically punished by fellow gang members because Mr. Runions had been using drugs extensively. Mr. Runions said that he had been using fentanyl. The 2017 Stabbing of Ms. A. [ 100 ] Mr. Runions reported to Ms. Nessman that the stabbing occurred in a washroom in Memorial Park. Mr. Runions said that he attended the park with his girlfriend and a fellow gang member. Mr. Runions told Ms. Nessman that his girlfriend and Ms. A. knew each other and got into an argument, which argument Mr. Runions then broke up. Mr.

Runions said that he then went into the public bathroom and that his girlfriend followed him. While in the bathroom, Ms. A. entered and asked to buy drugs. [ 101 ] Mr. Runions said that Ms. A. brandished a knife and grabbed his drugs and tried to make off with them. Mr. Runions said that he responded by taking the knife from Ms. A. knife, stabbing her with the knife four times, and that when Ms. A. fell to the ground, Mr. Runions “stomped on her face”. Mr. Runions said that the stabbing was an unreasonable response because if someone steals drugs they “need it more than I do”. When Ms. Nessman suggested that Mr.

Runions explanation was not believable because people would steal his drugs all the time, Mr. Runions said that another gang member would collect it for him, but denied that he would direct them to do so. The s.753(1)(a)(

i) and s.752(1)(a)(ii) Patterns [ 102 ] The Alberta Court of Appeal in Neve , at paragraph 107 , distilled the elements relative to determining the existence of a pattern under s.753(1)(a)(

i) as follows: 1. A pattern of repetitive behaviour; 2. The predicate offence must form part of that pattern; 3. The 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. [ 103 ] From Neve , at paragraph 108 , the required elements under s.753(1)(a)(ii) are these: 1. A pattern of persistent aggressive behaviour; 2. The predicate offence must form part of that pattern; and 3.

The pattern must show a substantial degree of indifference by the offender respecting the reasonably foreseeable consequences of his or her behaviour. [ 104 ] In Neve , the Court of Appeal emphasized that context is important, even at the stage of assessing whether or not the Crown has proven beyond a reasonable doubt the necessary pattern under either s.753(1)(a)(

i) or (ii). As Chief Justice Fraser wrote in Neve at para 118 without some understanding of the context of an offence, it is impossible for a judge to make an informed decision as to whether an offender’s behaviour will likely lead to harm in the future by reason of a failure to restrain his actions or because a substantial degree of indifference.

Second, Chief Justice Fraser cautions that assessing the context of an offender’s actions is necessary when determining whether the Crown has proven the necessary pattern of conduct. [ 105 ] Also, as Renke J identifies in Scrivens at paragraph 147, (referring to Neve at paragraphs 127, 131, and 139 ) the focus at this stage is on actions and not Mr. Runions thought, character or disposition. Psychiatric evidence, where necessary, may assist to explain why offences may be considered to create a pattern; however, psychiatric and character evidence is not the measure – it is the actual behaviour that is the measure.

Pattern of Repetitive Behaviour [ 106 ] Understood in the context that I have earlier provided, I am satisfied beyond a reasonable doubt that Mr. Runions’ past conduct, including the predicate offence, establishes a pattern of repetitive behaviour under s.753(1)(a)(i). Mr. Runions, as I early pointed out, does not argue otherwise.

[ 107 ] I have come to this conclusion because it is not difficult to see in Mr. Runions convictions a pattern of plainly repetitive and increasingly violent criminal behaviour since 2008. Mr. Runions’ behaviour is patterned in the gang-related criminal lifestyle that has formed a part of both his interpersonal relationships and his livelihood. Mr. Runions’ substance abuse issues most definitely play a

part in his pattern of offending as does profit – both in terms of drugs and money. All of the offences, with the exception of the assault of Mr. B in the Calgary Remand Centre in December of 2012 are to some degree or another related to Mr. Runions membership in a gang and the furtherance of the criminal enterprises of a street gang. [ 108 ] Although Mr. Runions, who cannot be trusted, has explained some of the violence by providing alternate explanations, (such as the suggestion that Mr. R was flirting with Mr. Runions before he stabbed him – a suggestion that did not form part of the admitted facts when Mr.

Runions was sentenced) the robbery at the LRT station, the home invasion robbery, the stabbing of Mr. R and Ms. A. are at least at some level related to Mr. Runions criminal enterprises and more particularly the drug trade. [ 109 ] While the degree of violence has escalated, having used a knife or machete in four different instances, it is notable that little to no provocation has precipitated each act of violence by Mr. Runions. The Predicate Offence Forms Part of the Pattern [ 110 ] The predicate offence is wholly consistent with the prior offences and forms part of the pattern under s.753(1)(a)(

i) or (ii). Pattern of Persistent Aggressive Behaviour [ 111 ] Persistent means repeated or repetitive: Neve , at para 111 . In my view, there can be no meaningful argument disagreeing with the suggestion that Mr. Runions’ violent behaviour was repetitive. In fact, the frequency of violence combined with some recognition of the degree of violence might be fairly described as frightening. In this regard, notably, the two life-threatening stabbings of Mr. R and Ms. A. both occurred within a one-month period of time. Even more remarkably, the machete attack to Mr.

K.’s neck, the predicate offence, occurred between the two stabbings of Mr. R and Ms. A., and only some ten days before the stabbing of Ms. A. There can also be no meaningful argument in these circumstances that Mr. Runions’ behaviour was anything other than aggressive. The Failure to Restrain Behaviour [ 112 ] Under s.753(1)(a)(i), the Crown must establish beyond a reasonable doubt that the pattern of repetitive behaviour, of which the predicate offence forms a part, demonstrates a failure by the offender to restrain his or her behaviour.

Like Renke J in Scrivens at paragraph 218, I conclude that the Crown must also prove the “failure to restrain” element under s.752(1)(a)(ii) as being implicit in the “persistent” aspect of that subsection. [ 113 ] Mr. Runions criminal record is not as long as many offenders before the courts, yet it should not be said that his record is insubstantial. However, within the pattern there is a willingness to arm himself with a sharp weapon and to use that weapon with devastating and life-threatening consequence.

In total, four different people have been severely injured by weapons used or handled in some manner by Mr. Runions. In at least three of those cases, in a one-month period, the injuries were potentially life threatening. I find beyond a reasonable doubt that Mr. Runions’ pattern of repetitive behaviour demonstrates a failure to restrain his behaviour. Likelihood of Causing Death or Injury [ 114 ] The Crown need not prove Mr. Runions will cause death or injury in the future; the Crown need only prove the likelihood of it: Lyons at para 118 .

Likelihood, in this context, means more than a possibility and, at the very least, it means more probable than not: Neve , at para 114 . As Renke J said in Scrivens at paragraph 217, this statutory requirement may be conveniently grouped together with the tracking of the overall threat assessment under subsection (

a) which directs me to consider the overall “threat to the life, safety or physical or mental well-being of other persons”. [ 115 ] Similarly, with respect to the third element to be proved by the Crown in s.753(1)(a)(ii), the pattern of persistent aggressive behaviour including the predicate offence, must be read with a requirement that the Crown establish beyond a reasonable doubt that the evidence discloses a likelihood that the type of aggressive behaviour described will continue in the future: Neve , at para 115 . [ 116 ] The substantial degree of indifference requirement has been described as an “conscious but uncaring awareness of causing harm to others and [if] this has occurred over a period of long duration involving frequent acts and with significant consequences, this is sufficient to establish a substantial degree of indifference”: R v Bunn, 2012 SKQB 297 at para 19 ; aff’d 2014 SKCA 112 . [ 117 ] I conclude that the Crown has proven beyond a reasonable doubt that Mr.

Runions engaged in the necessary pattern of conduct under ss.753(1)(a)(

i) and (ii). The Threat Analysis: has the Crown Proven there is a High Likelihood of Harmful Recidivism? [ 118 ] Having answered the first inquiry in the affirmative as to the necessary pattern requirements, this does not automatically or inevitably lead to a finding that Mr. Runions is a threat in the sense that he constitutes a threat to the life, safety or physical or mental well-being of others. [ 119 ] This consideration is forward-looking and as I just said, the burden is on the Crown to prove beyond a reasonable doubt the

requirement of the likelihood of reoffending in the future. It is important to note, however, that proof beyond a reasonable doubt of a“likelihood” does not mean that the judge is required to have a prescient ability to accurately predict the future. The question of what ismeant by proof beyond a reasonable doubt of a likelihood of reoffending was answered by La Forest J writing for the majority in Lyonsat paragraphs 93-94 as follows: ...However, as Holmes has reminded us, the life of the law has not been logic: it has been experience.

The criminal law must operate in aworld governed by practical considerations rather than abstract logic and, as a matter of practicality, the most that can be established in afuture context is a likelihood of certain events occurring. To doubt this consideration is, in actuality, to doubt the validity of thelegislative objectives embodied in

Part XXI, for to require certainty in such matters would be tantamount to rendering the processineffective. Moreover, I am not convinced, even as a matter of logic, that the appellant’s submission is sound. It seems to me that a “likelihood” ofspecified future conduct occurring is the finding of fact required to be established; it is not, at one and the same time, the means ofproving that fact. Logically, it seems clear to me that an individual can be found to constitute a ​​threat to society without insisting thatthis require the court to assert an ability to predict the future.

I do not find it illogical for a court to assert that it is satisfied beyond areasonable doubt that the test of dangerousness has been met, that there exists a certain potential for harm.

That this is really only anapparent paradox is aptly captured by Morden J in R v Knight, (1975) 27 CCC (2d) 243 (Ont HC) at p 356: I wish to make it clear that when I refer to the requisite standard of proof respecting likelihood I am not imposing on myself anobligation to find it proven beyond a reasonable doubt that certain event will happen in the future – this, in the nature of things would beimpossible in practically every case – but I do refer to the quality and strength of the evidence of past and present facts together with theexpert opinion thereon, as an existing basis for finding present likelihood of future conduct.

Intractability [120] Part of the prospective assessment of dangerousness, is answering the question of whether the behaviour is such that the patternof conduct can be said to be substantially or pathologically intractable: R v Boutilier, 2017 SCC 64 at para 26, referring to Lyons at para43.

As Justice Côté said in Boutilier at paragraph 35, “determining whether or not a high risk of recidivism and intractability are presentnecessarily involves a prospective inquiry into whether an offender will continue to be, in Justice Dickson’s words (as he then was) ‘areal and present danger to life or limb’”: Hatchwell v The Queen, (SCC), [1976] 1 SCR 39 at p 43. [121] This inquiry requires the sentencing judge to be concerned with whether Mr.

Runions will continue to pose a real dangerbecause he is unable to surmount his violent conduct and as directed by the Supreme Court in Boutilier at paragraph 43, I must “considerall retrospective and prospective evidence relating to the continuing nature of this risk, including future treatment prospects...” [122] As Justice Côté directs in Boutilier at paragraphs 45-46, the prospective evidence of treatability plays a different role at thedesignation stage as opposed to the sentencing stage. At the designation stage, treatability informs the decision on the threat posed byMr.

Runions and at the sentencing stage, it helps to determine the appropriate sentence to manage the threat. The prospective assessmentof dangerousness ensures that Mr.

Runions should not be designated as dangerous unless I conclude that he poses “tremendous futurerisk”. [123] As Renke J identifies in Scrivens at paragraph 234, referring to R v Racher, 2011 BCSC 1313, if intractability for designationpurposes meant that change was impossible or risk could not be managed in a determinate sentence, ss.753(4) and (4.1) would have nopurpose. [124] Evidence related to intractability has in the past included the following helpful list of factors as detailed in R v Ominayak, 2007ABQB 442 at para 209, aff’d on appeal at 2012 ABCA 337: • Deeply ingrained personality disorders that are resistant to change; • A lack of available and appropriate treatment facilities; • A poor outlook for improvement even where facilities exist; • Inability to estimate or predict a time frame for improvement; • Some, but very little, hope for treatment some time in the future • Treatment that will be long and difficult because the offender has more than one disorder and a limited capacity to learn The Positions of the Parties The Position of the Crown [125] The Crown urged me to find that it had proven beyond a reasonable doubt that there was a likelihood that Mr.

Runions wouldremain a danger or threat to the life, safety or physical or mental well-being of others. The pattern of conduct poses a future risk theCrown says because that pattern is substantially or pathologically intractable. [126] The Crown supports its arguments in a number of ways, arguing from the initial common-sense heuristic suggesting that thebest predictor of future behaviour is past behaviour.

[ 127 ] Beyond that heuristic, the Crown urged me to accept the opinion given by the forensic psychiatrist, Dr. Hashman suggesting that Mr. Runions suffers from deeply engrained personality disorders and other mental health diagnosis including polysubstance abuse disorder, antisocial personality disorder, borderline personality disorder, malingering with symptom exaggeration and ADHD in remission. [ 128 ] Although Mr. Runions has not received all possible treatment, and to date has taken and completed the High Intensity Violence Program while in custody, the Crown also suggests that Mr.

Runions interest in the last nine months while in custody is interesting as to timing. Beyond that consideration, the Crown urges that Mr. Runions problems are so deep-seated that prospective treatments are not so compelling as to change the likelihood of future risk. The Crown argues that there is some but little hope of treatment in the future. [ 129 ] The Crown also relied upon the risk assessment performed by Ms. Nessman, concurred in by Dr. Hashman, that Mr.

Runions falls into the highest risk classifications for both general criminal recidivism and for violent recidivism. [ 130 ] The Crown also asked me to consider that at least some of Mr. Runions’ past violence can be said to be instrumental in its nature, meaning that the behaviour has a specific tangible goal, as opposed to purely reactive crimes. Related to this notion, the Crown pointed out the difficulties Mr.

Runions would face attempting to deal with static factors such as his persistent drug use, his strong affiliation with gang membership, and what the Crown referred to as an entrenched criminal lifestyle. [ 131 ] The Crown urged me to accept Dr. Hashman’s evidence that Mr. Runions prognosis is poor due to the duration and severity of his substance abuse issues, the disingenuous presentation of symptoms to the psychiatrist, and the strong affiliation with gangs. [ 132 ] The Crown also relied upon a history of Mr.

Runions having difficulties complying with previous releases along with institutional and community records revealing a continued involvement with violence and poor compliance with supervision. [ 133 ] As to programming, the Crown noted that the predicate offence occurred after Mr. Runions has successfully completed the High-Intensity Violence Prevention Program while in custody. [ 134 ] The Crown suggested that Mr. Runions’ empathy towards his victims was superficial at best. [ 135 ] The Crown also urged caution with respect to Mr.

Runions treatability because of his unreliability as a truthful narrator describing the addressing of Mr. Runions issues as an attempt “to address the issue through murky water”. [ 136 ] In this regard, the Crown argued that risk management is speculative. While Mr. Runions might be able to take programming for violence, substance abuse, anger management, he must be in a position to learn and internalize the teachings. The Crown says this is merely an expression of hope. [ 137 ] The Crown also pointed out that Mr. Runions performed poorly on parole, having had parole revoked three times such that Mr.

Runions served his sentence to warrant expiry. These parole infractions involved, for example, arranging a drug deal between two associates, a concern that Mr. Runions was involved in a custodial assault (when Mr. Runions himself asked a hypothetical question as to how the prior incident might impact upon his parole), and the making of plans to meet up with a known gang member who was unlawfully at large. [ 138 ] The Crown also identified that the predicate offence was committed within a month of his warrant expiry date. [ 139 ] In the end result, the Crown urged me to declare Mr.

Runions to be a dangerous offender and to impose an indeterminate sentence. The Position of the Defence [ 140 ] Defence opposes the Crown’s application and argues that Mr. Runions should not be declared to be a dangerous offender, nor a long-term offender. Instead, Defence Counsel suggests that Mr. Runions receive a determinate sentence of 2 ½ years incarceration. [ 141 ] The Defence argues that the Crown has not proven that Mr. Runions is intractable and for that reason the Crown’s application must fail. In particular, the defence argues that there are viable treatment options available, that is, that Mr.

Runions is a treatable offender. Mr. Runions, it was said, has been actively looking for treatment since 2010. [ 142 ] In support of this argument, Defence points out that Mr. Runions has received limited treatment and there are resources available to treat the dynamic factors that have resulted in Mr. Runions’ offending. [ 143 ] Defence Counsel strongly argued that Ms. Nessman, the forensic psychologist, and Dr. Hashman, the forensic psychiatrist, focused on Mr. Runions’ negative behaviours to the exclusion of the progress that Mr.

Runions made during the time he has spent while incarcerated. [ 144 ] Defence Counsel said that I should, instead, look at the plan that in in place for Mr. Runions within the correctional system, and highlighted new programming which is multi-target programming designed to target all of Mr. Runions’ issues including drugs, his criminal associations, and anger management. Mr. Runions, the Defence stressed, is not an offender who has had the opportunity to benefit from extensive programming and has failed in those efforts. [ 145 ] In further support of the argument that Mr.

Runions cannot be considered to be intractable, Defence Counsel pointed out that since Mr. Runions has returned to the federal Edmonton Institution, Mr. Runions has worked to be reclassified as a medium security offender (from maximum) and has been free of institutional charges for one year. Mr. Runions has also been free of any assaultive allegations with the exception that Mr. Runions was video recorded kicking another offender who was already engaged in a fight with a third party.

[ 146 ] Defence Counsel also emphasized that Mr. Runions occupied a trusted role in the Institution as a cleaner, was going to school, and had been participating in spiritual ceremonies with Elders. It was also pointed out that Mr. Runions was a unit representative and occupied a role as a spokesperson as agreed to by other inmates and correctional guards. [ 147 ] Defence Counsel asked, as well, that I look at the record of breaches with a critical eye. For example, in relation to a missed appointment at the Forensic Outpatient Services [“FAOS”], Mr.

Runions encountered some difficulties because his sister had died and he had missed an appointment that he rescheduled at the time. Also, during that period, Mr. Runions was dealing with the apprehension of his son by the Province. When Mr. Runions was arrested for the home invasion robbery the referrals to FAOS were cancelled. It was also pointed out that the failure to pay restitution by Mr. Runions must be looked at carefully because Mr. Runions was not employed and did not have the means to make payment. [ 148 ] In response to the Crown’s argument that I should be suspicious of Mr.

Runions’ present motivations in seeking help, Defence argued that I do not have an evidentiary basis to conclude that Mr. Runions is being presently disingenuous. [ 149 ] As to the expert opinion evidence of Ms. Nessman and Dr. Hashman, Defence counsel strongly argued that the experts did not consider all of the evidence and that their opinions should be evaluated very carefully because it was suggested that the factual foundations for their opinions was not properly established by the underlying evidence. In this context, it was pointed out that Mr.

Runions had taken steps to remove security threat group tattoos, had engaged in coping measures for his anger, had participated well in mental health initiatives and was participating in school. Defence suggests that the evidence that emerged during the hearing directly impacts upon the weight that could be fairly given to the expert opinions. [ 150 ] While Defence Counsel conceded that Mr.

Runions had a history of parole violations, Defence pointed out that the violations did not involve allegations of further criminal offending or the use of drugs. [ 151 ] The circumstances are important Defence counsel says when relying upon violations such as these to say that Mr. Runions is of a high risk to reoffend violently or in accepting the conclusion that he is intractable. Threat [ 152 ] In order to determine whether the Crown has established, based upon the pattern established by Mr. Runions’ conduct, that Mr.

Runions constitutes a threat to the life, safety or physical or mental well-being of others, I will review the relevant evidence, and ultimately the conclusions that I draw from the evidence. I should note that unless I have indicated otherwise, I have accepted the evidence that I summarize as credible and reliable. Anika Tusun – Probation Officer [ 153 ] Ms. Tusun is a probation officer and the author of the presentence report prepared in relation to those offences that Mr. Runions was sentenced for in June of 2018. I will set out the circumstances briefly below. [ 154 ] On November 2, 2017, Mr.

Runions pleaded guilty to the following offences: possession of a weapon for a purpose dangerous to the public peace; possession of ammunition contrary to a court ordered prohibition; and, breach of an undertaking of release. [ 155 ] At the time of pleading guilty, Mr. Runions admitted that on the offence date of August 5, 2017 he was bound by an undertaking not to possess weapons and a s.109 Criminal Code prohibition order that prohibited him from possessing a firearm or ammunition. [ 156 ] The police, responding to a welfare check complaint, found Mr.

Runions sitting on a curb and one of the officers knew that there was a warrant for Mr. Runions’ arrest for aggravated assault. [ 157 ] The police conducted a search incident to arrest and found a black 6-inch knife with a black rope handle concealed inside of Mr. Runions’ right front pants pocket. [ 158 ] The police also searched a backpack and found a large machete in the backpack, along with a 14-inch metallic tube and bicycle clamp. When those two components were assembled together the resembled a firearm. Inside of the tube was a round of 12-guage shotgun ammunition.

The police also found six rounds of shotgun ammunition inside of the backpack. [ 159 ] Subsequent investigation found that the assembled device was not a functioning firearm. [ 160 ] At the time of sentencing on June 14, 2018, the Crown sought a sentence of 6 months incarceration consecutive to the 5 ½ year jail sentence that Mr. Runions was then serving. [ 161 ] Defence Counsel sought a sentence of 4 months consecutive, but importantly told the sentencing judge that Mr. Runions “has tried to distance himself from gang life in recent years.

Evidence of this is the fact that he has had a swastika tattoo actually covered up by a maple leaf tattoo”. [ 162 ] When imposing the 6 month global and consecutive sentence, the sentencing judge noted that the sentence could have been much higher except for the fact that Mr. Runions was already serving 5 ½ years. The sentencing judge noted that Mr.

Runions had accumulated close to 30 convictions for criminal activity, but that many of the convictions were for relatively minor crimes. [ 163 ] The sentencing judge pondered what life experiences would cause a 28 year-old Indigenous man to have “unchanging, and I repeat unchanging” criminal attitudes toward society – indicating, however, in the sentencing judge’s experience that “extreme cruelty and unbridled abuse inflicted by one person on another can warp a person’s attitude towards life and society forever”.

[ 164 ] The sentencing judge read and referred to a Gladue Report completed in relation to Mr. Runions as completed by Mr. Ashley Prairie Chicken. [ 165 ] Ms. Tusun, for her part, spoke in her evidence of the presentence report that she completed in relation to Mr. Runions. [ 166 ] Ms. Tusun, in preparation for the writing of her report, confirmed that she spoke with Rayvin Runions who is Mr. Runions’ sister and Melissa Schilf who is a previous parole officer assigned to Mr. Runions. [ 167 ] Ms. Tusun was of the opinion that Mr.

Runions took responsibility for the offences and was remorseful. [ 168 ] In her report, Ms. Tusun indicated that Ms. Schilf indicated that Mr. Runions was released on statutory release with residency on three occasions. Ms. Schilf also informed Ms. Tusun about how Mr. Runions had his released revoked on four occasions by the Parole Board of Canada for parole violations and that he had served his sentence for the home invasion robbery until warrant expiry at the Edmonton Institution on May 10, 2017. Ms. Schilf also reported, as a consequence, Mr. Runions did not complete any community programming. Ms.

Tusun was not certain from memory what programming was required of Mr. Runions. [ 169 ] With respect to his family circumstances, Mr. Runions confirmed his birthdate as May 13, 1990, and indicated that he could not recall if his parents were together before his birth. Mr. Runions said that he had one sibling, Rayvin Runions, and that another brother and sister has passed away in their twenties. Ms. Runions confirmed that Rayvin and the deceased sister (Savana) where siblings of Mr. Runions and that the brother (Richard) was a paternal half brother. [ 170 ] Mr. Runions apparently described his childhood to Ms.

Tusun as “good”; however, it was evident that Mr. Runions grew up in an unstable home environment with a mother who struggled with substance abuse issues and would often neglect her children. Mr. Runions felt abandoned. [ 171 ] Mr. Runions said that he was placed into foster care at the age of six, but that he was sexually abused by a male foster parent and elaborated that he informed his case worker but that she did not believe him. Mr. Runions recalled that he was in and out of several foster families from the age of four. [ 172 ] At the age of nine, Mr.

Runions said that while he resided with his mother for nine months, he was sexually and physically assaulted by one of his mother’s ex-boyfriends. Mr. Runions also reported corporal punishment from his mother. [ 173 ] Rayvin Runions confirmed most of this information, and confirmed her mother’s struggle with drugs, along with the abusive men that her mother dated. [ 174 ] Mr. Runions said at the age of nine that he became involved in a gang called Blood, Money and Crime Family and that he was an active member until he was incarcerated at the Calgary Remand Centre in August of 2017. [ 175 ] Mr.

Runions said that at some of the foster homes he experienced forcible confinement, physical and psychological abuse. Mr. Runions said that he attempted to “blow up” a foster home and attempted to “stab” one of his foster parents. [ 176 ] Ms. Runions confirmed that Mr. Runions was often in trouble in the foster care setting, and that he had set a fire due to the abuse he endured. Ms. Schilf confirmed that Mr. Runions was involved in the Blood, Money and Crime gang and that Mr. Runions was a recruiter for this gang. Ms. Schilf added that Mr.

Runions had been involved in the Cut Throat Mafia until he left the gang in December of 2015. [ 177 ] Mr. Runions reported not being in an intimate relationship and that he had relationships in the past, lasting months at a time. Mr. Runions has one son, who was 7 years-old at the time of the presentence report. [ 178 ] In relation to Mr. Runions’ Indigenous culture, Mr. Runions reported to Ms. Tusun that he was not involved in or practicing his culture but that he was a practicing Muslim. Ms. Schilf confirmed this information. Ms. Tusun testified, however, that Mr.

Runions told her that his mother was of Cree descent and Ojibway and that his father was French Canadian. Mr. Runions indicated that he had practiced his Indigenous culture for a period of time in foster care when in Didsbury in 2003 with a foster parent who was like a father to him, and recalled attending ceremonies, smudges, and sweats. He attended those at the age of 14 with his sister’s foster parent but that he had not done so since he was 16. Mr. Runions said that his mother did not practice her culture and was unsure whether she had attended residential school.

His sister, Rayvin Runions that the foster parent had given Mr. Runions a traditional name, but Ms. Runions reported that her brother did not follow through with it. [ 179 ] Mr. Runions told Ms. Tusun that he completed Grade 10 and that in June of 2017, he had been accepted into the Northern Alberta Institute of Technology to start a culinary arts program in the fall of 2017. He paid the full years tuition, and Rayvin Runions confirmed that information. [ 180 ] Mr. Runions indicated that he was employed from 2008 to 2009 as a general labourer and that this was the longest form of employment he has held.

He noted in the past that he was working on and off as a music producer. [ 181 ] Ms. Tusun confirmed that resources are available to refer people for help with their employment prospects but it would appear that this was not done. [ 182 ] Mr. Runions reported being involved in a criminal lifestyle that supported him financially. [ 183 ] Mr. Runions spoke of needing to develop better coping skills to deal with conflict, and expressed difficulty dealing with his anger. Mr. Runions said that violence is a problem for him when he is provoked, lied to, or feels disrespected. He had completed a violence p

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