Her Majesty the Queen - v. -, 2020 SKPC 16

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2020 SKPC 16 Date: April 3, 2020 Information: 24517536 Location: La Ronge _____________________________________________________________________________ Between: Her Majesty the Queen - and - Leonard Thomas Ross Appearing: Roger DeCorby For the Crown Christopher Koban For the Accused Note: Pursuant to

Section 486.4 of the Criminal Code the Court made an order directing that the identity of the victim, and any information that could disclose the identity of the victim, shall not be published in any document or broadcast or transmitted in any way. SENTENCING UNDER

PART XXIV OF THE CRIMINAL CODE I.J. CARDINAL, J INTRODUCTION

[ 1 ] Mr. Ross was found guilty after trial of sexual assault, contrary to

section 271 of the Criminal Code [ Code ]. Following his conviction, the Crown gave notice it intended to apply under

Part XXIV of the Code for an order to have him declared a dangerous offender. An assessment was ordered, prepared by Dr. Shabehram Lohrasbe, and filed with the court pursuant to

section 752.1(2). [ 2 ] The application proceeded, with both the Crown and defence calling evidence over several days in October 2019. The Crown’s witnesses had worked with or supervised Mr. Ross while he was incarcerated or in the community. A number of exhibits were filed: Mr. Ross’s criminal record; details of his offending behavior; and records outlining his behavior while incarcerated in both provincial and federal institutions. A pre-sentence report (PSR) was prepared, as was a victim impact statement. Mr. Ross did not testify at his trial, but he did testify on his own behalf at the sentencing hearing.

The Court called Dr. Lohrasbe to provide expert evidence related to his assessment of Mr. Ross, and received his Forensic Assessment Report (Assessment) as Exhibit C-2. [ 3 ] Having considered all of the evidence and applying the law, I find Mr. Ross meets the criteria in section 753(1) and I declare him a dangerous offender. I impose a sentence of detention in a penitentiary for an indeterminate period. CIRCUMSTANCES OF THE PREDICATE OFFENCE [ 4 ] On November 20, 2018, following trial, I found Mr. Ross guilty of sexually assaulting I. R.

My findings may be summarized as follows: On June 10, 2015, near La Ronge, Saskatchewan, I.R. was out for a walk when Mr. Ross invited her into his shack. They smoked a marijuana joint and talked. He was sitting on the bed and invited her to sit on the bed, telling her not to be shy. They talked some more and he wanted to have sex but she said she did not. As they sat on the bed, he grabbed her hands and pushed her onto her back on the bed. He held her hands beside her head with one of his hands, and removed his pants.

While beside her, using his right hand, he unbuttoned her pants, unzipped them and removed them and her panties. He touched her breasts under her clothing and her bare vagina. He attempted intercourse by laying on top of her and trying to push his penis into her vagina and trying to spread her legs. She told him she did not want to do this, but he kept pushing. She pushed him off her, and he fell to the floor. He got up, was mad, and hit her on the side of her face. She put her pants on, but he was freaking out and would not let her leave.

She sat on a chair and when he turned his back, she pushed him and ran out of the shack to escape. At no point did I.R. consent to this activity. Despite his efforts, Mr. Ross did not have sexual intercourse with her. VICTIM IMPACT [ 5 ] I.R. is a 35 year old, cognitively challenged adult female. She and Mr. Ross know each other, but there is no evidence they are related. [ 6 ] Christy Roberts, a direct support worker, employed by North Sask Special Needs in La Ronge testified. This organization works with adults that have disabilities. Ms. Roberts assists clients, including I.R., with daily life skills.

As the trustee for I.R.: she sees her daily, helps her pay the rent, takes her shopping, and provides her with an allowance. She prepared a written victim impact statement on behalf of I. R. on October 10, 2019 (Exhibit P-15). Her evidence is that I.R. has been negatively impacted by the sexual assault. Ms. Roberts testified when they speak of the sexual assault, I.R. becomes very emotional, is fearful, and resorts to drug use to ease her pain. According to Ms. Roberts, I.R. is “not herself” since this incident (T-Vol 3, p. 399). CIRCUMSTANCES OF THE OFFENDER [ 7 ] Mr.

Ross is a treaty member of the Lac La Ronge Indian Band. Currently 54 years of age, he was born on February 10, 1966 and raised in the La Ronge area in northern Saskatchewan. His parents separated when he was young, and his alcoholic mother was unable to parent him and his siblings. He was placed in foster care as a baby and as a child. While he had some positive placements, they were few. He often ran away to be with his mother, and was eventually returned to live with her when he was approximately 12 years of age. Rather than parent him as he thought she would do, his mother continued drinking and to Mr.

Ross, it seemed she only wanted him around to babysit the younger children. He ran from his mother’s home to live with his father briefly when he was 13 years of age, but the situation was no better there (PSR). [ 8 ] He lived at a residential school in Prince Albert from approximately 1979 to 1982, then returned to La Ronge to live with his mother. He began using alcohol, sniffing gas and other solvents. Around the age of 14 he lived in an all-boys group home at Smoothstone Lake, near La Ronge, around the age of 14. He ran from that facility, and went home to his mother but things did not improve.

At the age of 15 he went to live at another group home in Saskatoon, where he obtained his Grade 10 and other life skills. He

expressed this was a positive placement. He also spoke of his grandfather as a positive influence, who taught him how to live off theland. Mr. Ross said he has suffered physical and sexual abuse from his relatives, while in foster care, and at the residential school (PSRand evidence of Mr. Ross). [9] He was first incarcerated in March 1982 at the age of 16, and since then his life has been one of moving between thecorrectional center, the penitentiary, and the community. [10] His dysfunctional childhood morphed into a dysfunctional adulthood. He has had relationships with women and fathered anumber of children.

Unfortunately, these relationships often resulted in domestic and familial abuse. Mr. Ross was violent toward hiscommon-law wives and one of his children, who was an infant at the time. [11] Throughout his adulthood, he has been a heavy drinker. He testified he has reduced and controlled his consumption over thelast decade.

The PSR indicates that in the year prior to his current remand, he would drink approximately twice a month, sharing two 60oz bottles of whiskey with friends, usually over the weekend. [12] Despite the challenges he faces, such as having few friends or positive influences in his life, as well as the prevailing Gladuefactors (R v Gladue, (SCC), [1999] 1 SCR 688 [Gladue], Mr. Ross has found some success in his artwork. He is veryartistic and showed his work to Dr. Lohrasbe and the court. It brings him obvious pride and it is something Mr.

Ross uses to anchorhimself and as a means of therapy to help him work through issues. It is also a way for him to connect to his Indigenous identity, as hefeels he had lost that aspect of his life while growing up in foster care. He has sold or donated pieces to various groups and hopes,someday, to make a living from his artwork. [13] Mr. Ross acknowledged that he ran from custody often. He testified that he returned to La Ronge because that is where hismother and his children lived, and he wanted to see them.

However, now that his children are older, he believes he would like to live inthe Edmonton area where he feels he can find success as an artist, obtain employment and reconnect with his Aboriginal culture. He saidhis mother recently passed away, and his children are now old enough to visit him if they wish. I note that in the Assessment, at pagethree, it appears he has relatively little contact with his six biological children, but is close to his current partner’s twin daughters who are20 years old and live in the La Ronge area. [14] Mr.

Ross testified he feels one-on-one counselling is necessary to help him work through childhood trauma and address his underlying issues. He wants to regain his Aboriginal identity and culture. He maintains he is willing tofollow conditions and report as required. He indicated he will follow through with counselling provided it is someone he can trust,otherwise he will rely on his art as his therapy.

He wants to live a simple lifestyle, living off the land and doing his art but also told Dr.Lohrasbe that in doing so, he is “hoping they will leave me alone…I just do not want people telling me what to do.” (Assessment, pg. 3) CRIMINAL RECORD [15] Mr. Ross has an extensive criminal record that spans 32 years from March 1982 to April 2014. It contains approximately 62previous convictions. Of these, 14 are violent offences comprised of three convictions for sexual assault, two for assault causing bodilyharm, six for assault, and three for uttering threats.

He has five convictions for being unlawfully at large, and his criminal record noteshe was a statutory release violator in 2004, 2008, and 2009. He has four convictions for failing to comply with an order or obligationunder the Sex Offender Information Registration Act, SC 2004, c 10, contrary to

section 490.031 of the Code. The remainder of theconvictions include failing to comply with various court orders such as undertakings, probation, or requirements to attend court (20);break and enters (12); possession of stolen property (1); mischief (1); obstruction (2); contributing to juvenile delinquency (1); anduttering forged documents (2). [16] The predicate offence is now his fourth conviction for a sexual offence and his fifteenth conviction for a violent offence.

Hehas served sentences of incarceration in the provincial correctional system, the federal penitentiary system, and under a conditionalsentence order in the community. He has also had the benefit of release conditions and probation orders to assist in rehabilitation. Despite this, there are few gaps in his criminal record. [17] In discussing his violent and sexual criminal offending behaviour, Dr. Lohrasbe observed: “Mr. Ross acknowledged

responsibility for his past violence, but his demeanor shifted, and he appeared disgruntled while doing so. He was aloof and disengaged, broke eye contact, crossed his arms, and leaned back in his chair.” (Assessment, pg. 7) [ 18 ] Dr. Lohrasbe also reported: Overall, while he acknowledged his convictions for his past violence, Mr. Ross demonstrated little insight.

Instead, he engaged in minimization and projections of responsibility to substance abuse, life stressors, the justice system, or the victims themselves. (Assessment, pg. 10) VIOLENT AND SEXUAL OFFENDING HISTORY [ 19 ] As dangerous offender proceedings focus on violent and sexual offending, it is necessary to outline these aspects of Mr. Ross’s criminal record. He has been convicted of 15 violent offences, including four sexual assaults, one of which is the predicate offence.

The circumstances underlying the convictions, which include witness statements or transcripts, are outlined in Exhibit P-3, Previous Convictions Binder. The Crown summarized the facts from these materials in a fair manner in their brief of law at paragraph 12 and I have reproduced them below. [ 20 ] Mr.

Ross’s history of violent criminal behavior commenced with the conviction for assault and assault causing bodily harm on July 31, 1985 against his seven month old son, B.R., and his common-law wife, for which he received a sentence of 16 months imprisonment followed by one year of probation: Facts: Ross had previously been abusive with his infant son. In an attempt to bond with him, he began to play with him. His son was frightened of him and began to cry. Ross became frustrated, and he slapped and punched B.R. several times. He wrapped B.R. in a blanket and covered his face with his hand until he turned blue.

Sarah attempted to intervene, and Ross elbowed B.R. in the stomach and Sarah in the face and head. In order to call police and get away from Ross, she jumped out of a second story window with B.R. B.R. suffered severe bruising to his entire body, a cut lip, and black eyes. Sarah also suffered bruising to her head and a swollen jaw. [ 21 ] On March 11, 1993, he was convicted of a common assault against a female, Virginia Halkett, whose relationship to him is unknown. He received a suspended sentence of one year probation.

The Crown notes no official facts are available as the court recordings are not available. [ 22 ] On May 4, 1993, he was convicted of common assault against his sister, Delores Ross, and sentenced to 30 days incarceration. The Crown notes no official facts are available as the court recordings are not available. [ 23 ] On May 25, 1993, he was convicted of assault causing bodily harm and uttering threats to cause death in relation to Donald White, a commissionaire at a hospital in Prince Albert. The Crown notes no official facts are available as the court recordings are not available.

I note this violent offence is the only one that occurred in a location other than La Ronge. [ 24 ] On September 21, 1993, Mr. Ross was convicted of uttering threats to Mary Ann Roberts, his spouse, and was sentenced to 6 months in jail. Facts : Ross went to Roberts’ mother’s home and took Roberts’ two month old baby and stated “I don’t want to see you around this baby or I’ll shoot you myself” and “don’t you call the cops or Social Services on me or I will kill you”. Ross then left with the baby.

Ross was intoxicated at the time of the offence. [ 25 ] On September 21, 1993, he was also sentenced to two months incarceration consecutive, for a common assault on a male acquaintance, Matthew Charles. Facts : Charles was asleep at a party when Ross woke him up, called him an asshole, and punched him in the face. Ross was intoxicated at the time of the offence. [ 26 ] Mary Ann Roberts was again the victim of a common assault for which Mr. Ross was sentenced on January 26, 1994, to two months incarceration, time served.

The Crown notes the official facts as they relate to this offence are unknown as the court recordings are not available.

[ 27 ] His first conviction for sexual assault occurred on December 29, 1994 at La Ronge, and he was sentenced to two year’s incarceration. The offence occurred on September 4, 1994: Facts: Ross was at the home of F.H. drinking with two other females. Georgina Sanderson (Sanderson) and Pearl Ross (Pearl). F.H. went to bed early as she had consumed a large amount of alcohol. Pearl helped F.H. into bed and Sanderson and Pearl left to get more alcohol, leaving Ross in the home with F.H. Sanderson returned approximately 10 minutes later to find the door to F.H.’s bedroom closed.

She kicked the door open to find Ross on top of F.H., having sex with her while she was unconscious. Ross had his pants down, had taken F.H.’s pants and underwear off, and pushed F.H.’s shirt up past her breasts. She asked him “what the fuck did you do to my friend?” Ross told her to get out, and she left the house again. Pearl arrived back at the house and the two women entered the home to find Ross sitting in the main room fully clothed. When they confronted him, he denied assaulting F.H. and became physically violent with both Sanderson and Pearl. F.H. suffered some minor bruising to her stomach area.

It is important to note that F.H. is Ross’s first cousin. [ 28 ] On that same date, Mr. Ross was sentenced to four years’ incarceration, consecutive, for sexually assaulting M.C., another of his female relatives. This offence occurred on October 8, 1994, five weeks after the sexual assault upon F.H.: Facts: M.C. was at a party with friends and Ross asked M.C. to go with him to get more beer for the party. Ross suggested they take the back road to the bar.

M.C. was reluctant and stated that she did not want to stumble and fall due to being slightly intoxicated, but Ross convinced her to go that way and said that she could hold onto him while they walked so she would not fall. After walking a little while, Ross stated that he had to use the washroom and stepped off the path a bit out of view. When he returned to M.C., he pushed her until she fell to the ground. He asked her if he could make love to her and she said no. He then started to get violent and she began to cry. He sat on her chest and pinned her to the ground.

She asked him how he could do this to her as they were related. Ross then began choking M.C. into submission and told her to take her pants off. M.C. started blacking out and started removing her pants out of fear. He forced M.C. to have sexual intercourse with him. When he was done, he got up and pulled his pants up, telling her to do the same. He stated, “I’m not finished with you yet” and they walked to the bar. M.C. stayed with him out of fear until she met a friend at the bar. While at the bar, Ross “head butted” M.C. and told her to tell her friend that he was her “old man”.

She eventually left with her friend and was able to get away from Ross. [ 29 ] On November 16, 2000, an additional sentence of four years’ incarceration consecutive was imposed for a sexual assault that occurred on February 26, 2000, against K.C., Mr. Ross’s sixteen year old cousin: Facts: K.C. was only 16 years of age at the time of the offence. Ross and K.C. were at a house party and discussed tattoos. K.C. told him she wanted a tattoo on her back and Ross told K.C. that if she wanted a tattoo, he would have to sketch it first. He took her into a bedroom where he asked her to take off her clothes.

K.C. said no, but Ross persisted; stating it would be easier to sketch the tattoo if she were to remove her shirt. K.C. told Ross to “forget it” and Ross began to touch K.C. on her breasts and vagina. K.C. tried to leave the room but Ross would not allow her to leave. Ross then began pushing his right hand down the front of K.C.’s pants and continued to touch her breasts. As Ross touched her breasts, he attempted to undo her pants. K.C. buttoned her pants back up which made Ross angry, so he punched her in the mouth with a closed fist.

Ross left the room, and told K.C. that she “better stay put as he would be right back”. In fear of being assaulted again, K.C. climbed out of the bedroom window and ran to another residence. Ross was on statutory release at the time of the offence. [ 30 ] On May 16, 2006, he was convicted of two counts of common assault, one upon Alice Charles, his common-law wife, and another upon Delores Ross, his sister.

He was sentenced to two year’s incarceration: Facts : Ross became extremely upset during a conversation between he and Charles and punched her approximately three times on the left side of her face, causing a black eye. Delores stepped in between Charles and Ross in the attempt to prevent further harm, and Ross kicked Delores in the face, causing her nose to bleed. Ross was intoxicated at the time of the offence. [ 31 ] With respect to the predicate offence, Mr. Ross was found guilty after trial on November 20, 2018 of sexually assaulting I.R. on June 10, 2015 at La Ronge, Saskatchewan.

I briefly summarized the facts at paragraph [4] of this decision. INSTITUTIONAL BEHAVIOUR AND PROGRAMMING [ 32 ] Throughout his years of incarceration, Mr. Ross has generally been compliant, but at times he can be argumentative and demanding, with a poor attitude towards authority. This came through not only in the Correctional materials, but also through Dr. Lohrasbe’s report.

[ 33 ] Mr. Ross was given the opportunity to take alcohol programming early on during his incarceration. Again, he would sometimes participate and at other times would withdraw or be disruptive. He has attended Alcoholics Anonymous, and recovery programs while incarcerated as well as when living in the community. [ 34 ] He has voiced a desire to attend Indigenous cultural events and work with elders in an effort to reclaim his Aboriginal identity while incarcerated. He assisted an elder at cultural events outside of the institution which went well.

Yet, other times when opportunities arose to participate in discussions with elders or cultural events, Mr. Ross declined. [ 35 ] During his incarceration in the federal system between 1994 and 2009, Mr. Ross was under the authority of the Correctional Service of Canada [CSC]. Legislation such as the Corrections and Conditional Release Act , SC 1992, c 20 guide parole officers and others in sentence management obligations and processes. As stated at para. 18 of the Crown brief of law: They are also set out in detail in the

Part XXIV hearing evidence of Tyler McKinnon, and in the Court Report of James Gonzo (Exhibit P-6). That evidence will not be repeated at length here. In brief, when managing an offender, CSC is required to consider public safety in light of the risk that particular offender presents to reoffend, but is also obligated to develop a Correctional Plan which will identify programming that can be provided to the offender in order to assist with their rehabilitation and, ultimately, with their reintegration into the community.

The specific and unique circumstances of Aboriginal offenders must be taken into account in all decisions relating to the management of those offenders. An aboriginal stream of programming is available to offenders. [ 36 ] Mr. Ross had the benefit of Aboriginal focused programming concerning substance abuse and violence. He has had placements, at his request, at the Stan Daniels Healing Centre (SDHC) in Edmonton, a facility focused on treatment geared toward Aboriginal offenders, and was granted Escorted Temporary Absences (ETA’

s) so he could connect with his Indigenous culture. [ 37 ] In addition to these programs and placements, Mr. Ross has taken the Cognitive Skills Program, and the Anger and Emotions Management Program. He successfully completed the Aboriginal Sex Offender Program in 1998 and it was assessed that he had lowered his risk to re-offend sexually. Unfortunately, he did not perform well in the Sex Offender Minimum Security-Relapse Prevention Program, the Offender Substance Abuse Pre-Release Program or the SOAR (Society of Aboriginal Addictions Recovery) program. [ 38 ] Because he was engaged in his Correctional Plan, Mr.

Ross’s security rating was reduced to minimum, and he was transferred to Riverbend Institution in Prince Albert and released on parole to live in northern Saskatchewan in late December 1998. He did well for the first year and a Correctional Plan Progress Report (Exhibit P-7, page 218) illustrates he was working, had support and had improved his attitude. However, within about eight weeks of the report, he sexually assaulted K.C. and was sentenced to the penitentiary in November 2000. [ 39 ] While serving this second penitentiary sentence, Mr.

Ross initially had a poor attitude, but did eventually make efforts to cooperate, take some programs and reduce his security risk to minimum. He was transferred to the SDHC in Edmonton as it would provide him with the opportunity to follow a traditional healing path. He again was granted and successfully followed the terms of ETA’s for employment, cultural and social activities. He participated in the National Maintenance Sex Offender Program (Exhibit P-12; pg. 103) and the Relationships Program. [ 40 ] Due to his positive performance at the SDHC, Mr.

Ross was released on statutory release in April 2003 to reside at MACSI, a Metis Addictions treatment facility in Prince Albert. Mr. Ross was upset at being placed on a residency clause and went unlawfully at large within a month. He was brought back into custody in June 2003. His management team exercised discretion and returned him to MACSI in July 2003, but Mr. Ross again went unlawfully at large in August 2003. He was arrested in January 2004, and his statutory release was subsequently revoked (Exhibit P-12). [ 41 ] This pattern of release and absconding continued thereafter.

He was transferred to the SDHC under a provision of the CCSA to serve his sentence, but once it was made a term of his release that he reside at the SDHC, he absconded in December 2004 and was arrested in La Ronge later that month. In February 2005, he was granted statutory release to reside at MACSI, but went unlawfully at large in March 2005 after a confrontation with staff (Exhibit P-12). He served the remainder of his sentence and was released in April 2005. [ 42 ] Success in the community was short lived and Mr.

Ross was sentenced to a federal sentence of two year’s incarceration on May 16, 2006 for assaulting his common-law partner and his sister. A correctional plan was developed and he participated in the

National Moderate Intensity Family Violence Prevention Program. Although he struggled in the program and was easily frustrated, he was assessed as having made significant gains. He also completed and did well in the National Substance Abuse Program, Moderate Intensity Program, and the National Substance Abuse Maintenance Program (Exhibit P-8). [ 43 ] These successes translated into a minimum security rating, and a transfer to Riverbend Institution. He was released on statutory release in late December 2007 with a residency condition and at his request, placed at the SDHC.

Two days later he absconded but was arrested in March 2008 in La Ronge. He was released in April 2008 to MACSI but went unlawfully at large a few days later. He was arrested in July 2008 in La Ronge after his common-law wife called police because she was tired of his drinking and was worried he would get into trouble (Exhibit P-8). [ 44 ] His sentence expired in June 2009, but his Institutional Parole Officer, Tammy Davies, testified that he had accomplished little.

She was of the opinion that while he had completed a lot of programs, “he was not able to carry what he learned in the classroom and apply it to his life in the community, that he just wasn’t ready to internalize the skills and strategies he learned and to deal with the stresses of his life and he reverted back repeatedly to substance abuse and –and just not abiding by the conditions of his release” (T-Vol 2, p. 325). [ 45 ] This is in line with the evidence of Mr. Ross as he testified that the programming he received worked, but everything went out the window when he was drinking (T-Vol 3, p. 438, L 1-20).

I also note that Dr. Lohrasbe observed at page 10 of the Assessment that “Mr. Ross was generally dismissive and skeptical of the value of programs.” [ 46 ] Despite knowing that he will be returned to jail for non-compliance, Mr. Ross has, on multiple occasions, breached his release conditions and been held in custody for varying lengths of time between 2010 and 2014. [ 47 ] Following his last conviction, he was released from custody on April 7, 2014. On June 10, 2015 he was arrested for the predicate offence. He was held in custody until his release on March 31, 2016.

Six days later he failed to report to the supervisor on April 6, 2016 or attend court as required on August 11, 2016. He remained at large until his arrest on March 17, 2017. Explaining why he was unlawfully at large during this time, he testified he had been fighting the court all his life and he was not going to court for something he did not do (T-Vol 3, p. 446, L 20-40). [ 48 ] He also offered this explanation in the Assessment, at page 10: He recalled that he was kept in custody until March of 2016 when he was released on bail.

He was taken back into custody a year later; “ They picked me up because I breached, I didn’t report, but I didn’t because I don’t trust the system. They want me to report for sex offender registry, I don’t trust them.” … [ 49 ] A report prepared by Nancy Elder on September 11, 2019 (Exhibit P-5) provides information as to his performance during his current period of remand which began on March 17, 2017.

It notes he has access to programming and work placements, based on a tiered system employed for offenders in his unit: The subject has maintained short terms of employment as the Unit Domestic, however, he became frustrated and quit. Between 24-Apr- 2017 -19 Oct- 2017, the subject was employed as the Activities Helper, Recreation Assistant. This employment was sporadic, duties included assisting the Activities Coordinator in delivering canteen and recreation items such as board games to all units throughout the centre. The subject spends the majority of his days completing his artwork.

Over the past year, this writer has observed a decline in the subject’s attitude toward other inmates and Corrections Officers’ (silent treatment, argumentative). The subject displays no interest in attending programs and has not applied for programs available to him. He does appear interested in cultural activities when offered. The subject has also volunteered some of his artwork to the Be Real Gang Exit Strategy program within the centre. FORENSIC ASSESSMENT [ 50 ] Dr. Lohrasbe interviewed Mr. Ross over the course of three hours at the Prince Albert Correction Centre on May 14, 2019.

He also had the benefit of the records and reports compiled for this hearing. He observed no obvious cognitive defects, and Mr. Ross engaged in the assessment interview without hesitation. (Assessment, pg. 2)

[ 51 ] Mr. Ross previously experienced anxiety and episodes of depression and despair, including suicidal urges and suicide attempts, but these have largely subsided. He was noted to be in good health and not taking any medications. He displayed a good sense of humor and showed the doctor his art work, which has provided him with a “solid basis for a positive identity.” (Assessment pg. 3) [ 52 ] Mr. Ross related his life history, including his struggles in foster care, the community, within his family and during periods of incarceration. A review of his criminal offending conduct was also completed. [ 53 ] Dr.

Lohrasbe found that Mr. Ross meets the criteria for the diagnoses of Antisocial Personality Disorder and Substance Abuse Disorder at pages 11-12: Antisocial Personality Disorder is a descriptive diagnosis common in the offender population and applicable to Mr. Ross. It is based on the early onset of behavioral problems (lawbreaking, irresponsibility, impulsivity, aggression) and reflected in his criminal record…Mr. Ross does not come across as especially psychopathic; rather his antisociality reflects behavioral dysfunction of early onset in reaction to adverse childhood experiences…. [ 54 ] Dr.

Lohrasbe found Mr. Ross is sexually aggressive but is not a sexual deviant, and noted: Rather, Mr. Ross’ history of criminality and violence indicates that his sexual offending sexual violence is one aspect of antisociality, impulsivity, and lack of effective self-regulation manifesting in multiple contexts, including sexual ones. (Assessment, pg. 12) [ 55 ] Dr. Lohrasbe diagnosed Mr. Ross with substance abuse disorder and observed at page 12 of the Assessment: Prior assessors (see file review) have repeatedly emphasized its significance for ongoing risk and Mr.

Ross described far more solvent abuse during our interview than what had previously been documented. Although gasoline sniffing ceased once he was an adult, it likely had multiple and long-term effects, including (as he has intuited) his early anxiety symptoms. More broadly, the long-term damage associated with gas sniffing (and other forms of solvent abuse-all neurotoxic) include all kinds of subtle brain damage. Limited cognitive capacities and impulse control deficits are common.

Although inhalant abuse is not limited to Indigenous communities, its prevalence is closely associated with family dysfunction, despair, trauma, and poverty, all tragically overrepresented in Indigenous youth. [ 56 ] Mr. Ross’s childhood history is replete with trauma. (Assessment, pg. 11) [ 57 ] Mr. Ross has difficulty expressing empathy. Dr. Lohrasbe notes Mr. Ross has shown a capacity for empathy toward his victims, but it is only when Mr. Ross’s attention is drawn to the damage his actions cause that he shows empathy.

His attention needs to be constantly drawn to this aspect of his behavior, as otherwise, if it is out of sight it is out of mind. Dr. Lohrasbe noted that when he spoke to Mr. Ross on May 14, 2019, he showed a lack of empathy toward his victims (T-Vol 3, p. 499, T-Vol 3, p. 508 and T-Vol 3, p. 509). [ 58 ] In assessing the risk Mr. Ross poses, Dr. Lohrasbe notes: Ideally, a risk assessment ‘deconstructs’ the acute and chronic contributors toward violence, sometimes described as a ‘crime cycle’.

Isolating the elements that preceded and precipitated violence, allows for a closer examination of what may perpetuate violence in the future. When an offender’s version of a violent incident is at odds with the facts as found by a Court, there is an unavoidable gap in the understanding, and hence in the confidence of risk assessment. Moreover, Mr. Ross is at the extreme end of denial of the predicate offence. Some offenders acknowledge their physical actions but downplay the seriousness, others plead ignorance, etc., but with Mr.

Ross there is both a total denial as well as ‘victim blaming’. (Assessment, pg. 13) [ 59 ] Mr. Ross has a diversity of risk factors, and accordingly, Dr. Lohrasbe found: The implication of the diversity of risk factors is that in order to reduce his risk, Mr. Ross will have to be perpetually alert, mindful of the ongoing influence of his history and established habits of mind and behaviour, while simultaneously cognizant of potentially destabilizing emotions and circumstances. Such a high degree of self-awareness (monitoring of internal and external reality) is an onerous task for most people, more so for Mr.

Ross. As is common with those who have a background of childhood trauma, Mr. Ross did not enter adulthood with ‘normal’ or average skills in self-awareness and self-control. A tragic reality among so many offenders is that traumatized children -the very group overrepresented in our jails and prisons- are those that are least skilled yet require the most self- awareness that is a precondition for effective self-regulation. (Assessment, pg. 14) [ 60 ] Dr. Lohrasbe identified five potential features that could mitigate the risk Mr. Ross poses to the public: sobriety, ageing,

current sentencing proceedings, identity and treatment programs. He noted Mr. Ross needs to bring about a shift in his attitude frombeing extremely antagonistic toward “the system” to seeing it as being on the same side. If he can do so, “there are reasons to beoptimistic about risk management.” (Assessment, pg. 16) [61] According to Dr. Lohrasbe, Mr. Ross needs a detailed risk management plan once there is a clear understanding of resourcesavailable in the community to which he is released.

Lengthy follow up is essential and: Decades of research and clinical experience inform us that close monitoring and supervision are essential for risk management. Thelongest possible period of supervision is likely to maximize the possibility of effectively managing his risk in the community. … Risk management is not a one-time endeavor, since changes are inevitable as a person ages and his circumstances alter. Periodic riskassessments will assist in specific planning for safe management in the community. (Assessment, pg. 17)

PART XXIV PROCEEDINGS [62] Dangerous offender proceedings are reserved for a small group of offenders who pose a serious risk of harm to thecommunity such that a lengthy or indeterminate sentence is warranted as a means of public protection. Sentencing in these types ofproceedings follows the procedure as outlined in

Part XXIV of the Code. As with any matter for sentencing, the Crown bears the onusof proving aggravating factors beyond a reasonable doubt. Further, insofar as they apply, general principles of sentencing must beconsidered, including Gladue factors, in order that a fit sentence be imposed. [63] Section 753(1) is the overriding provision in determining whether a person’s criminal conduct is such that they must bedeclared a dangerous offender: 753

(1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find theoffender 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 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 behavior, (ii) a pattern of persistent aggressive behavior 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 reasonably foreseeable consequences to other personsof his or her behavior, or … (

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

b) of thedefinition of that expression in

section 752 and the offender, by his or her conduct in any sexual matter including that involved in thecommission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and alikelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses. [64] The leading case in the area of dangerous offender proceedings is R v Boutilier, 2017 SCC 64, 2017 SCC 64 , [2017] 2 SCR 936 [Boutilier]. As the Court noted at para 16: “Section 753(1) contemplates two categoriesof dangerousness: (

a) dangerousness resulting from violent behaviour …, and (

b) dangerousness ensuing from sexual behavior. …” [65] The dangerous offender scheme is designed as a two-stage process, the designation stage and the penalty stage. Both stagesinvolve an analysis of the future threat posed by the offender, including treatment prospects. At para 31 in Boutilier, the Courtexplained: … the purposes of prospective evidence at the designation and sentencing stages are different. The designation stage is concerned withassessing the future threat posed by an offender. The penalty stage is concerned with imposing the appropriate sentence to manage theestablished threat.

Though evidence may establish that an offender is unable to surmount his or her violent conduct, the sentencing judgemust, at the penalty stage, turn his or her mind to whether the risk arising from the offender’s behaviour can be adequately managedoutside of an indeterminate sentence.

[ 66 ] At the first stage, referred to as the designation stage, I must determine if Mr. Ross meets the criteria set out in section 753(1) (a) (involving violent offences) or section 753(1)(b) (involving sexual offences). I note the Crown brings this application on the basis that Mr. Ross’s violent offending behaviour coupled with his sexual offending behaviour falls under section 753(1)(a)(

i) and section 753(1)(a)(ii) and his sexual offending behaviour alone falls under section 753(1)(b). These subparagraphs are disjunctive and so long as the Crown satisfies me beyond a reasonable doubt that Mr. Ross meets the criteria under any one of them, I have no discretion and must designate him as a dangerous offender and proceed to the penalty stage ( Boutilier , para 18 ). [ 67 ] The Crown must prove four things before a person can be designated a dangerous offender: (

i) the offender has committed, and is to be sentenced for, a serious personal injury offence; (ii) the serious personal injury offence is part of a broader pattern of violence as described in section 753(1); (iii) there is a high likelihood of violent recidivism; and (iv) the violent conduct of the offender is intractable. Intractable refers to conduct the offender is unable to surmount ( Boutilier , paras 26 and 28 ). DESIGNATION STAGE Question: Does Mr. Ross meet the criteria of section 753(1)(a)(i), or section 753(1)(a)(ii) or section 753(1)(

b) such that the Court shall find him to be a dangerous offender? Answer: Yes Criteria 1: Has Mr. Ross committed, and is he to be sentenced for, a serious personal injury offence? Answer: Yes, as his conduct meets the definition in sections 752(a)(i), 752(a)(ii), and 752(b). [ 68 ]

Section 752 defines a serious personal injury offence: serious personal injury offence means (

a) an indictable offence, other than high treason, first degree murder or second degree murder, involving (

i) the use or attempted use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person, and for which the offender may be sentenced to imprisonment of ten years or more, or (

b) an offence or attempt to commit an offence mentioned in

section 271 (sexual assault)…

Section 752(a)(i) [ 69 ] I find that Mr. Ross has committed a serious personal injury offence within the meaning of

section 752(a)(

i) as he has committed an indictable offence involving the use of violence against another person, I.R., in committing the offence of sexual assault. The Crown has proceeded by way of indictment concerning the sexual assault offence before the court. [ 70 ] The offence of sexual assault is one of violence. He invited I.R. into his shack on the suggestion they smoke a joint. He invited her to sit on the bed and told her not to be shy. He tried to convince her to have sexual intercourse with him, but she refused.

He then forced himself upon her and restrained her in order to touch her sexually and attempt sexual intercourse. When she pushed him off her, he was angry, hit her and would not let her leave the room. She waited for an opportunity to make her escape. She pushed him when he turned his back to her, and ran from the shack.

Section 752(a)(ii)

[ 71 ] I find Mr. Ross has committed a serious personal injury offence within the meaning of

section 752(a)(ii) as he has committed an indicatable offence involving conduct endangering, or likely to endanger, the safety of another person or inflicting or likely to inflict severe psychological damage upon another person and for which he may be sentenced to imprisonment for 10 years or more. The offence of sexual assault, proceeded by way of indictment, as is the case here, carries a maximum sentence of 10 years imprisonment.

I find that his conduct in physically restraining I.R., touching her breasts and vagina, attempting to have sexual intercourse against her will, hitting her and refusing to let her leave is conduct endangering or likely to endanger her safety. [ 72 ] As well, I find the sexual assault was conduct that inflicted or was likely to inflict severe psychological damage upon I.R, a person with cognitive issues. While it may be difficult to discern at times whether it is the actions of Mr.

Ross or other issues which impact her psychologically, it is clear that his conduct was such that it inflicted or was likely to inflict severe psychological damage to such a vulnerable young woman. [ 73 ] Dr. Lohrasbe also stated that any sexual offence, inflicts psychological harm or is likely to inflict severe psychological damage (T-Vol 3, p. 517). I concur.

Section 752(b) [ 74 ] It is common ground between the parties that Mr. Ross has committed a serious personal injury offence as defined in

section 752(b), that is the offence under

section 271 , sexual assault. As a result, section 753(1)(

b) is clearly a gateway for Mr. Ross to be designated a dangerous offender. This is a proper concession by Mr. Ross given the facts of the predicate offence. This is the main avenue by which the Crown is proceeding with this application. ANALYSIS OF

SECTION 753 [ 75 ] Section 753(1)(

a) is the pathway for a designation of dangerousness based on patterns of violent offences. Section 753(1)(

b) is the pathway for a designation of dangerousness based solely on sexual conduct. As different considerations are at play, I will fully analyze each separately. Criteria 2: Is the serious personal injury offence part of a broader pattern of violence as described in section 753(1)(a)? Answer: Yes, under section 753(1)(a)(i), section 753(1)(a)(ii) Sections 753(1)(a)(

i) and (ii) [ 76 ] Pursuant to section 753(1)(a)(i), I must be satisfied that Mr. Ross constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing a pattern of repetitive behavior by him, of which the predicate offence forms a part, showing a failure to restrain his behavior.

The Crown must also prove there is a likelihood of him causing death or injury, or inflicting severe psychological damage on other persons, through failure in the future to restrain his behavior. [ 77 ] Section 753(1)(a)(ii) requires the Crown to prove a pattern of persistent aggressive behavior, of which the predicate offence is a part, showing a substantial degree of indifference by Mr. Ross respecting the foreseeable consequences to others of his behavior. [ 78 ] In determining if the Crown has proven that Mr.

Ross has shown a pattern of repetitive behavior or a pattern of persistent aggressive behavior, the case of R v Knife , 2015 SKCA 82 , 460 Sask R 287 is instructive: [65] Repetition obviously implies there is more than one offence. Thus an offender must have prior violent offences (even if only one), and the predicate offence must constitute a repetition of the offender’s violent behaviour.

… [67] There are two main ways of identifying this repetitive behaviour: as stated in Neve at para. 111 , there may be similarities in the types of offences, or similarities in the degree of violence used. For example, an offender with a history of committing aggravated assaults has necessarily demonstrated a repetition of violent behaviour, as a high degree of violence is implied in the very nature of aggravated assault.

Rosenberg J.A. in the Szostak decision of the Ontario Court of Appeal, at para. 63, agreed with Neve stating “Similarity… can be found not only in the types of offences but also in the degree of violence or aggression threatened or inflicted on the victims” ( Neve at para. 113 ). … [69] The Alberta Court of Appeal chose to use the phrase “degree of violence” to describe this latter idea in Neve . Another way of characterizing this same idea could be to refer to it as the “nature of the violence”.

The nature of violence used may demonstrate significant similarities in the offender’s behaviour which in turn may ground a finding of “repetitive behaviour”—for example, an offender who continually uses weapons to committing violent offences, regardless of what the specific type of offence is. The point is that the focus should be on similarities in the offender’s violent behaviour that show a failure to restrain that behaviour. [70] Thus, where an offender has repeatedly engaged in violent behaviour and a pattern has been established showing (

a) a failure to restrain his or her behaviour and (

b) a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons in the future through a failure to restrain such behaviour, the offender must be designated as a dangerous offender. The fact of repetition demonstrates a failure to restrain the violent behaviour but the additional element of future risk must also be established. [ 79 ] From the evidence, there emerges both a pattern of repetitive behavior and persistent aggressive behavior. The predicate offence is part of a broader pattern of violence. The sexual assault offences are similar in that Mr.

Ross takes advantage of women by getting them alone and using violence against them. He assaulted F.H. while she was unconscious due to alcohol consumption. He choked M.C. to near unconsciousness to gain her compliance. He does not stop even when others intervene to prevent him from continuing the offence and continues to exert psychological force over the victims, especially as concern the sexual assaults. [ 80 ] The assaults all involve a significant degree of violence and usually involve people known to Mr. Ross. Only one - the assault at the hospital in Prince Albert - involved a stranger.

All assaults are against women, save three. He has violently assaulted his common-law partners, and other relatives, including his infant child. Mr. Ross used threats of continued violence, coupled with physical force, in order to gain compliance in nearly every violent offence. [ 81 ] There is one aspect of his behaviour that is not similar - the age of his victims. Mr. Ross’s violence is not directed at just the young or the older person, but at a wide age of victims starting at seven months old and onward. [ 82 ] The predicate offence represents a continuation of the violent offending of Mr.

Ross, especially with regard to sexual offences. The Crown has established a pattern of repetitive behavior as required by section 753(1)(a)(

i) as well as a pattern of persistent aggressive behavior pursuant to section 753(1)(a)(ii). Criteria 3: Is there a high likelihood of violent recidivism? Answer: Yes [ 83 ] I am also convinced beyond a reasonable doubt that the pattern of repetitive behaviour required by section 753(1)(a)(

i) shows a failure on the part of Mr. Ross to restrain his behavior and a likelihood of causing injury to others, or inflicting severe psychological damage on others through failure in the future to restrain his behavior. [ 84 ] Despite his victims either voicing their objections, or physically resisting Mr. Ross, he persisted in violent behavior. Some victims had no opportunity to resist him, as in the case of F.H., as she was unconscious at the time of the assault. Another male victim was asleep when Mr. Ross assaulted him.

Still another victim, his infant son, seven months old, was simply incapable of resistance. [ 85 ] In no instances did Mr. Ross back off or stop his assaultive behavior. Even when others were around and tried to stop him, he continued with his aggressive behavior.

[ 86 ] Through interviews and assessments, Dr. Lohrasbe found Mr. Ross is a high risk to re-offend - violently or sexually - if he does not make a significant change. He also agreed with Crown counsel that Mr. Ross presents a high likelihood of harmful recidivism (T-Vol 3, p. 515, L13-23). [ 87 ] The primary risk factor for Mr. Ross is substance abuse, notably alcohol. Nearly all of Mr. Ross’s offences involved alcohol. Dr. Lohrasbe commented that if Mr.

Ross stopped drinking, his risk for harmful recidivism would drop dramatically (T-Vol 3, p. 534). [ 88 ] Further, as required by section 753(1)(a)(ii), I am satisfied the pattern of persistent aggressive behavior by Mr. Ross shows Mr. Ross’s substantial degree of indifference to the reasonably foreseeable harm to victims caused by his behavior. [ 89 ] I have no hesitation in finding that this persistent aggressive behavior of Mr. Ross towards his infant son, domestic partners, and other persons shows a substantial degree of indifference on the part of Mr.

Ross respecting the reasonably foreseeable consequences to other persons of his behavior. Criterion 4: Is the violent conduct of the offender intractable? [ 90 ] I must be satisfied the pattern of violent conduct is substantially or pathologically intractable. In other words, that the offender is unable to surmount their violent conduct. This involves a prospective assessment of risk and viability of future treatment.

The Crown must demonstrate intractability of the violent pattern of conduct ( Boutilier , para 26 ). [ 91 ] As stated in Boutilier , an offender should not be designated a dangerous offender if the future treatment prospects are so compelling that the offender can overcome those factors that lead to their risk. In his evidence, Dr. Lohrasbe testified that sobriety is the overriding issue for Mr. Ross. Further, he agreed that Mr. Ross will “need someone on him” for the rest of his life to remain sober (T- Vol 3, p. 521-522). [ 92 ] Given the trauma that Mr.

Ross experienced as a child, the antisocial personality disorder with which he has been diagnosed and his sexually violent criminal history, Dr. Lohrasbe agreed that it is a lifelong task for Mr. Ross to break these links to stop his violent criminal behavior (T-Vol 3, p. 506). [ 93 ] Dr. Lohrasbe held some hope that Mr. Ross may, with treatment, be able to manage his risk in the community. At page 15 of the Assessment, he noted: “There are several potential risk-reducing features to be considered.

Taken together they suggest there is a reasonable prospect for significant reduction of risk in the foreseeable future.” These risk reducing features are: sobriety, ageing, current sentencing proceedings, identity, treatment programs, and risk management. [ 94 ] Despite his current high risk to re-offend in a violent or sexual manner, Dr. Lohrasbe is of the opinion that Mr. Ross has enough strengths going for him that, with some adjustment in the treatment options made available to him, his risk could be reduced to the point where it could be managed in the community (T-Vol 3, p. 519, L 27-31). [ 95 ] Dr.

Lohrasbe expanded upon this and noted that sobriety is the foundation to ensuring Mr. Ross does not re-offend in a sexual or violent manner. He said Mr. Ross must fully understand and commit to the fact that he must not ever again consume alcohol. He testified that the focus for Mr. Ross is on his behavioural commitment to self-control and sobriety. If he can do that, then everything else, including a trauma-approach to his childhood experience can proceed (T-Vol 3, p. 521). [ 96 ] Dr. Lohrasbe was, in my opinion, overly optimistic about the prospects of Mr. Ross being able to maintain sobriety. While Mr.

Ross has maintained sobriety in an institution, he immediately reverts to alcohol consumption upon his release.

[ 97 ] Further, Mr. Ross has a deep mistrust of authority and the system in general. From his evidence and the Assessment, it is clear Mr. Ross trusts no one and listens to no one but himself. He is reluctant to follow through with any programing or reporting once he is back in the community. This is reflected in the numerous entries in the Correctional Service of Canada records where Mr. Ross has been released on parole and, within days of release, absconds and is back to his old behavior of drinking alcohol and becoming intoxicated. Violence often follows hand in hand with his consumption of alcohol. [ 98 ] Mr.

Ross has adopted this pattern for years. Most recently, on March 30, 2016, Mr. Ross, was released from custody when he entered into an undertaking with conditions. Those conditions included reporting to a probation officer. Mr. Ross, no stranger to reporting conditions, failed to report as directed on April 6, 2016. He remained at large until his arrest in March 2017. Even when he was aware that he may be subject to a dangerous offender application by the Crown, as he has been for approximately 15 years, Mr.

Ross chose to ignore lawfully imposed release conditions designed to secure his good behaviour. [ 99 ] While on remand during the past year awaiting trial and sentencing for the sexual assault on I.R., Mr. Ross has not participated in programming available, or made efforts to pursue cultural activities to move forward on a healing plan. [ 100 ] Mr. Ross concentrates on his art, and relies upon it as a form of therapy.

While his art may serve to calm him and fill him with pride, his art, in and of itself, is not sufficient to address the childhood trauma in the same way working with a professional therapist could assist him. Mr. Ross needs professional help, as noted by Dr. Lohrasbe, in the form of intensive therapy. [ 101 ] Aging is another factor that can reduce risk. Dr. Lohrasbe noted that it is expected that “with passing years his risk will decline” (T-Vol 3, p. 523). Dr.

Lohrasbe noted in the Assessment at page 15, and in his evidence that statistically, the frequency and severity of offending decline as an offender ages, and that such a drop is usually around the age of 21 or 22 (T-Vol 3, p. 524). He testified that, “statistically it drops to zero when they’re 60 but obviously there are exceptions.” He noted that there was no strong reason for him to think Mr. Ross would be an exception (T-Vol 3, p. 537-538). [ 102 ] With all respect, I disagree with Dr. Lohrasbe’s assessment in this regard. Mr.

Ross has already defied the statistics that his offending behaviour will reduce as he ages. He has continued to commit violent offences well beyond the age of 21 or 22. His first convictions for violent offences were on July 31, 1985, for offences that occurred on July 23, 1985, when he was 19 years of age. This was the start of his violent offending and it has continued, as he aged, culminating with the predicate offence in June 2015 at age 49. I find that aging will have little to no impact on reducing Mr. Ross’s future risk of re-offending violently or sexually. [ 103 ] Furthermore, Mr.

Ross requires close, continual and life-long supervision. Dr. Lohrasbe was optimistic that Mr. Ross’s risk to re-offend violently or sexually could be reduced in the community in the foreseeable future with the proper treatment plan. Self- awareness, sobriety and supervision are the path forward for Mr. Ross. [ 104 ] However, Dr. Lohrasbe was clear, that supervision is not be measured in years, but in a lifetime. Mr. Ross needs life-long supervision. Nothing short of a life of supervision, designed to keep Mr.

Ross “laser focused” on the path of sobriety, will keep the public safe from his violent and sexual offending behaviour. [ 105 ] I do not share the optimism expressed by Dr. Lohrasbe that the risk Mr. Ross poses to the public will be reduced in the near future through treatment to address his violent and sexual conduct. Considering all of the evidence, I find that Dr. Lohrasbe’s opinion on this issue is simply an expression of hope. Protection of the public requires more than hope that Mr. Ross will follow through with treatment designed to reduce his violent and sexual offending conduct. [ 106 ] I find that Mr.

Ross meets the criteria set out in sections 753(1)(a)(

i) and 753(1)(a)(ii) and I designate him to be a dangerous offender on each of those grounds. Section 753(1)(

b) Question: Does Mr. Ross meet the criteria of section 753(1)(

b) such that the Court shall find him to be a dangerous offender?

Answer: Yes [ 107 ] Section 753(1)(

b) establishes the requirements that I must consider: “that 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.” [ 108 ] The criminal record of Mr. Ross discloses three previous convictions for sexual assault. The current conviction is his fourth. All involve women. All involve violence, some more overt than others.

The summaries of his sexual offences were earlier outlined and will not be repeated in full. [ 109 ] Mr. Ross has been convicted of a sexual assault on: December 29, 1994 against F.H. while she was unconscious due to intoxication. He did not relent when Sanderson interrupted him. When Sanderson and Pearl confronted him, he assaulted both women. December 29, 1994 against M.C. This offence occurred on October 8, 1994, five weeks after the sexual assault upon F.H. Mr. Ross choked M.C. until she complied, out of fear, with his demand for sexual intercourse. It was not enough that he sexually violated her.

He continued to psychologically and physically coerce her to stay with him, telling her he “was not done with her” and head butting her. November 16, 2000 , against K.C., Mr. Ross sexually assaulted her, hit her and told her not to leave the room. She jumped out a window to escape. November 20, 2018 against I.R. Mr. Ross attempted sexual intercourse after I.R. refused her consent. Following the sexual assault, he would not let her leave the room, but she managed to escape by pushing him when his back was turned. [ 110 ] Mr. Ross violently sexually assaulted the victims of these offences.

He knew all four of his victims and was related to three of them. As noted by Dr. Lohrasbe, these offences have a predatory quality about them. (Assessment, pg. 14) [ 111 ] Mr. Ross had opportunities to stop his sexual offending before it escalated further, but he did not. Instead, he used violence to subject the women to the sexual assault, and continued to threaten or hit them after the sexual assault in order to keep control over them. It was only after they took drastic action themselves that they were able to escape. [ 112 ] Mr. Ross remains a high risk to re-offend sexually. In his Assessment, Dr.

Lohrasbe recognized the gap in offending between Mr. Ross’s release from incarceration for sexual assault in approximately 2009 to the offence against I.R. in June 2015 and notes, at pages 14 and 15: Specific to his risk for sexual violence, the extended period of abstinence from sexual assault is a ‘double edged sword’. On the one hand the long gap indicates his potential for desistance since there has not been the kind of unremitting sexual violence sometimes seen in sexual offenders.

On the other hand, the return of sexual violence even after a long period of desistance indicates that at least some of the factors that have perpetuated sexual violence in the past persisted and were reignited under particular circumstances. Hence there is an unavoidable dilemma: a long gap between convictions for sexual violence and then an incident that cannot be explored with him to explore currently relevant risk factors.

That gap in information, together with the longstanding and breadth of risk factors, his continued projection of responsibility on the victim, his resentment of direction and supervision, and his overall lack of insight, it is difficult to avoid the conclusion that the forces that have driven his violence, including sexual violence, remain with him, and hence that his risk remains high. [ 113 ] In his evidence, Dr. Lohrasbe agreed that in his forensic opinion, Mr. Ross has demonstrated a failure to control his sexual impulses (T-Vol 3, p. 518-519).

Considering the evidence before the court, I agree with this assessment. [ 114 ] I have no hesitation in finding that Mr. Ross, by his conduct has, in each of the three previous sexual assaults, and including that involved in the commission of the predicate offence, shown a failure to control his sexual impulses.

[ 115 ] Further, I find there is a high likelihood his conduct of causing injury, pain or other evil to other persons will continue in the future due to his inability to control his sexual impulses. Dr. Lohrasbe agreed with Crown counsel’s suggestion that Mr. Ross represents a likelihood of causing injury, pain or other evil to other persons through the failure in the future to control his sexual impulses. (T-518- 519) Based on the overwhelming evidence, I concur with his opinion. [ 116 ] The question remains whether Mr. Ross can, through treatment, reduce his future likelihood of re-offending.

Sadly, the information presented leads to the conclusion that Mr. Ross will not be successful in controlling his sexual impulses in the future. [ 117 ] I adopt my comments above concerning the treatment prospects and future reduction of his sexual offending behavior. Substance abuse is a huge impediment to Mr. Ross and his treatment program. It is directly tied to his violent criminal offending behavior, generally and specifically to his sexually offending behavior. He will need “someone on him for life” in order to remain sober.

He requires life-long supervision to effectively manage his risk in the community. [ 118 ] While I respect and accept Dr. Lohrasbe’s opinion on most issues, I find Mr. Ross’s prospects of successful treatment are illusory. [ 119 ] He has shown time and again that he prefers to run away from his problems. He resents being told what to do by persons in authority, and has shown a long, continuous history of not complying with terms of release in the community while on parole or release conditions imposed by the court. He has been incarcerated for the majority of the last 38 years.

His recent time from April 2016 to March 2017 as unlawfully at large is yet another example of Mr. Ross’s distain for authority, and being told what to do. [ 120 ] Considering all of the evidence, Mr. Ross is one of that small group of offenders whose treatment prospects are not so compelling that he can overcome the factors that lead to his risk to re-offend violently or sexually. [ 121 ] I am satisfied beyond a reasonable doubt that Mr. Ross meets the criteria in section 753(1)(b), and accordingly, I find him to be a dangerous offender. [ 122 ] I now turn to the penalty stage.

PENALTY STAGE [ 123 ] Even though I have found Mr. Ross to be a dangerous offender, I must still consider the appropriate sentence. Sections 753(4) and (4.1) guide this analysis: 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. [ 124 ] Protection of the public is the paramount consideration in sentencing dangerous offenders. In this case, rehabilitation and retribution must be secondary considerations given the risk Mr. Ross poses to the public, especially women.

[ 125 ] As noted at para 31 of Boutilier, “the penalty stage is concerned with imposing the appropriate sentence to manage the established threat.

Though evidence may establish that an offender is unable to surmount his or her violent conduct, the sentencing judge must, at the penalty stage, turn his or her mind to whether the risk arising from the offender’s behaviour can be adequately managed outside of an indeterminate sentence.” [ 126 ] And further at para. 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. [ 127 ] The framework to be followed by a sentencing judge is outlined at para 70: … First, if the court is satisfied that a conventional sentence, which may include a period of probation, if available in law, will adequately protect the public against the commission of murder or a serious personal injury offence, then that sentence must be imposed.

If the court is not satisfied that this is the case, then it must proceed to a second assessment and determine whether it is satisfied that a conventional sentence of a minimum of 2 years of imprisonment, followed by a long-term supervision order for a period that does not exceed 10 years, will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. If the answer is “yes”, then that sentence must be imposed. If the answer is “no”, then the court must proceed to the third step and impose a detention in a penitentiary for an indeterminate period of time.

Section 753(4.1) reflects the fact that, just as nothing less than a sentence reducing the risk to an acceptable level is required for a dangerous offender, so too is nothing more required. [ 128 ] Mr. Ross has had many opportunities to make the necessary changes in his life to be successful upon release and while in the community. Unfortunately, he does not appear to understand that alcohol can have no

part in his life or that he must use the skills he learns in treatment to avoid re-offending violently in the community. [ 129 ] He has repeatedly been non-compliant with conditions of parole and court orders, and most recently was unlawfully at large from April 2016 to March 2017 while awaiting trial on the predicate offence. This should come as no surprise given that he does not like to be told what to do by anyone, especially a person in authority, and does not see the value in supervision. [ 130 ] Mr.

Ross has little to no insight into his offending behavior other than to say he was drunk (T-Vol 3, p. 490, L 22-34). He is not able to show empathy for his victims unless it is brought to his attention. [ 131 ] His moral blameworthiness is high, and while I consider the Gladue factors, I find they carry little weight in these proceedings. The offence is serious, as is Mr. Ross’s criminal record. Mr. Ross repeatedly resorts to violence against women, despite having taken numerous programs to address and lessen his sexual and violent behaviour.

He appears unable to internalize or draw upon his programming to stop his offending behaviour. Notably, he is unable to stop consuming alcohol or remain sober outside of an institution. [ 132 ] There is no reasonable expectation that a lesser measure under paragraph 4(

b) or (

c) will adequately protect the public against the commission by Mr. Ross of a serious personal injury offence. [ 133 ] A conventional sentence of imprisonment up to two years, followed by the maximum period of probation of three years, is well outside the range of sentencing for Mr. Ross, given the facts of the predicate offence and his history of convictions for sexual assaults and violent offences.

Even if I were to sentence him to a conventional sentence or a period of incarceration in a penitentiary to the maximum of 10 years, he would likely be eligible for parole in a short period of time and be released into the community. I find that the imposition of a conventional sentence will not adequately protect the public against the commission by Mr.

Ross of a serious personal injury offence. [ 134 ] If I were to impose a sentence of a minimum punishment of imprisonment for a term of two years followed by a long-term supervision order for a period that does not exceed 10 years, it will not adequately protect the public against the commission by Mr. Ross of a serious personal injury offence. This is so because there would be little time for supervision in the community before the sentence

expires. [ 135 ] As well, if I were to impose the maximum sentence of 10 years incarceration followed by a long-term supervision order for a period of 10 years, it will not adequately protect the public against the commission by Mr. Ross of a serious personal injury offence. While Mr. Ross will age as he serves his sentence, he would still be relatively young upon his release into the community, and will only be under supervision for a period of 10 years. I am of the opinion that the evidence indicates that even as he ages, Mr. Ross will not slow his violent or sexual offending behavior.

He is 54 years of age now, and committed the predicate offence at the age of 49. He has already defied the statistics concerning aging as a means of reducing risk. [ 136 ] Considering all of the evidence adduced, and that only lifelong supervision of Mr. Ross can protect the public, I find that nothing short of detention in a penitentiary for an indeterminate period will adequately protect the public against the commission by Mr. Ross of a serious personal injury offence. [ 137 ] I appreciate Dr.

Lohrasbe does not feel long sentences are beneficial to the offender and that such can lead to “warehousing” in the sense that the offender simply gives up and loses interest in following through with programs. However, the Correctional Service of Canada will follow its mandate and make appropriate programs available to Mr. Ross to reduce his risk and treat his underlying issues. It is up to Mr. Ross whether he will choose to fully participate. [ 138 ] A future where he is sober, able to live off the land or find employment, and supplement his income with his art is still open and available to Mr. Ross.

Even as a dangerous offender serving an indeterminate sentence, he will be assessed for possible parole. He will need to comply with his treatment plan and work with the authorities as he moves forward. He may one day be back in the community, but he will always be under supervision, as protection of the public demands. CONCLUSION [ 139 ] I declare Mr. Ross a dangerous offender and impose a sentence of detention in a penitentiary for an indeterminate period. [ 140 ] With respect to ancillary orders, pursuant to

section 109 of the Code , I prohibit Mr. Ross from possessing firearms, ammunition, and other weapons as defined therein, for life. I make an order pursuant to sections 490.012 and 490.013 of the Code , requiring Mr. Ross to comply with the Sex Offender Information Registration Act for life. Further, I authorize the taking of bodily substances from Mr. Ross for the purposes of DNA analysis pursuant to

section 487.051 of the Code . [ 141 ] I order a copy of all reports, including the PSR completed October 9, 2019, Dr. Lohrasbe’s report dated July 17, 2019, a transcript of the evidence of Dr. Lohrasbe, a transcript of the trial of Mr. Ross, along with these written reasons be forwarded to the Correctional Service of Canada, pursuant to

section 760 of the Code .

__________________________ I.J. Cardinal, J