Her Majesty the Queen - v. -, 2017 SKPC 074

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 074 Date: August 30, 2017 Information: 39122463 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Leslie Ivan Black Appearing: Mr. Jeffrey Lubyk For the Crown Mr. Brent Little For the Defence _____________________________________________________________________________ DECISION ON DANGEROUS OFFENDER APPLICATION S.D. LOEWEN, J _____________________________________________________________________________

[ 1 ] This matter has been a very difficult case for all of the players involved. I have received much help from both Crown counsel, Mr. Lubyk, and defence counsel, Mr. Little, and I would like to express my appreciation to both those gentleman for the work they have put into this file. [ 2 ] Both Dr. Lohrasbe and Dr.

Nicholaichuk have put in a great deal of energy in both preparing their reports and their testimony in Court. [ 3 ] I’m going to give you my conclusion first and then follow that up with my reasons, which are complicated in some ways, but in others, rather straight forward. [ 4 ] First of all, I am dismissing the Crown’s application to have the accused found a dangerous offender under s. 753(1)(iii) of the Criminal Code . I am going to sentence Mr. Black to a significant period of incarceration in a penitentiary. Finally, I am going to find that a long-term supervision order is appropriate.

The incarceration period is required because of the severe nature of this case and deterrence and denunciation together with protection of society has to be primary in any sentencing of Mr. Black. The supervision order will hopefully provide sufficient supervision of the accused in the community to provide further protection for the community. [ 5 ] I will take you through my reasons for this conclusion in what follows. In some respects the decision, particularly as it relates to the dangerous offender designation, seems somewhat counterintuitive given the findings of facts in this case.

However, in light of the provisions of the Criminal Code I was lead inexorably to the conclusion that I have reached. INTRODUCTION [ 6 ] On June 29, 2014, the accused, Leslie Ivan Black, was charged with the following two offences: On or about the 1 st day of June, A.D. 2014 at or near Prince Albert, Saskatchewan did in committing a sexual assault on Marlene Bird, wound, maim, disfigure and endanger the life of the said Marlene Bird thereby committing an aggravated sexual assault, contrary to

section 273 of the Criminal Code ; and On or about the 1 st day of June, A.D. 2014 at or near Prince Albert, Saskatchewan did attempt to murder Marlene Bird contrary to

section 239 of the Criminal Code . [ 7 ] After a dozen or so adjournments, on April 28, 2015, the accused plead guilty to count 2 and the Crown undertook at that time to withdraw count 1 once sentencing on Mr. Black had been completed. [ 8 ] The facts upon which the conviction was founded were established on the basis of an agreed statement of facts. Those facts are as follows: 1.

In the late evening of May 31, 2014 and early morning hours of June 1 st , 2014, the victim Marlene Bird (born February 6, 1967) was in the company of Walter Sanderson and Vivian Henderson in the downtown area of Prince Albert, Saskatchewan. 2. At some time, after the hour of 12:56 a.m. the three found themselves at the north entrance of the Kinsmen Community Heritage Centre, 115 12 th St. W., where it meets the west wall of the Margo Fournier Centre. They had just purchased a bottle of wine at Georgie’s liquor store and made their way to a secluded spot to consume their liquor. 3.

Marlene Bird then consumed alcohol in the company of Walter Sanderson and Vivian Henderson until she became intoxicated and unconscious. 4. At some time, after 3:57 a.m., the accused Leslie Black arrived at the above noted location and interacted with the three

aforementioned individuals. 5. Prior to his arrival at the scene, Leslie Black had consumed alcohol and smoked cannabis marijuana. 6. Leslie Black spoke to Vivian Henderson and tried to persuade her to leave the scene with him to engage in a sexual act. 7. Walter Sanderson convinced Vivian Henderson not to go with Leslie Black but instead leave the scene with him. This occurred shortly before 4:28 a.m. 8. When Walter Sanderson and Vivian Henderson left the north entrance of the Kinsmen Community Heritage Centre, 115 12 th St.

W., where it meets the west wall of the Margo Fournier Centre, Leslie Black was then alone with Marlene Bird. 9. While Leslie Black and Marlene Bird were alone, and after consuming more alcohol, they engaged in sexual intercourse. This is confirmed by the presence of Leslie Black’s DNA on the vaginal swab of Marlene Bird later taken by the police; determination of the identity of the DNA sample having been made by matching with a known sample belonging to Leslie Black, found in the DNA database. 10.

Leslie Black states that Marlene Bird initially consented to sexual intercourse with him, the Crown agrees to withdraw count 1 of Information #39122463 (s. 273 Aggravated Sexual Assault). 11. Sometime prior to 4:55 a.m., Marlene Bird was slowly passing out while having sex with Leslie Black. She then indicated to him that she was going to “charge him with rape”. As a result of this, Leslie Black became engaged in a heated argument with Marlene Bird. The argument escalated to the point where Leslie Black kicked and stomped Marlene Bird multiple times, causing severe injuries to her face. 12.

While Marlene was incapacitated, as a result of the physical assault occasioned upon her, Leslie Black used a lighter to ignite her clothing on fire, the end result being that Marlene Bird suffered severe burns to her legs, eventually leading to the amputation of her legs. 13. During the physical assault, and the act of using a lighter to ignite her clothing, Leslie Black was so infuriated because of the argument they were engaged in, that he intended his actions to cause Marlene Bird’s death. 14.

Defence conceded that Leslie Black’s level of intoxication was not so great as to vitiate his ability to form the specific intent required to complete the mens rea element under s. 239 of the Criminal Code of Canada . 15. After the hour of 4:55 a.m. Leslie Black travelled by foot to the 7-11 store at 215 15 th St. W., entering the store at 4:59 a.m., purchasing candy, and leaving. 16. Leslie Black then travelled by foot within visual proximity to the crime scene, and noticed a small fire burning, yet did not stop to offer assistance to Marlene Bird. He then went home to sleep. 17.

Marlene Bird was not found or treated until 10:20 a.m., at which time a passerby noticed her laying and severely beaten at the scene. She had been burned and was naked from the waist down. The skin on the left side of her face was peeled back, exposing teeth and facial bones. Her left eye was damaged, and she had fractured facial bones. Both her legs were badly burned and her right foot was attached only by a piece of tendon or skin. 18.

Marlene Bird was transported to the Victoria Hospital in Prince Albert, and then airlifted to the Saskatoon Royal University Hospital where she received further care for her facial injuries including reconstruction. She also had an initial amputation of her right leg in Saskatoon. Due to fourth degree burns on the left leg and the attendant injuries, she was then transferred to the University of

Alberta Burn Unit in Edmonton where both her legs were removed above the knees. Her condition was critical at times and she remained in a medically induced coma for several days. Marlene received many skin grafts throughout her treatment and was eventually transferred back to the Royal University Hospital for further rehabilitation and treatment. 19. Attached and forming part of this Agreement as to Facts are the medical records of Marlene Bird from the Royal University Hospital in Saskatoon and the University of Alberta in Edmonton, Alberta. 20.

Attached to and forming part of this Agreement as to Facts are 9 photographs of Marlene Bird taken shortly after the attack while she was in the hospital. [ 9 ] Those photographs were subject to an order of the Court that they not be revealed as they were quite disturbing and publishing them would not further the interests of justice. This order was consented to by the Crown and Defence. [ 10 ] A guilty plea was entered in front of the Court. The Crown at that time made an application under

Part XXIV of the Criminal Code to have the accused designated as a dangerous offender. On April 28, 2015, an assessment order under s. 752.1 of the Criminal Code was made. That assessment order is filed with the Court. The report was authored by Dr. Shaberam Lohrasbe. It quoted the accused as denying that portion of the agreed statement of facts that pertained to the intention of the accused to cause the death of Marlene Bird. As a result of that, defence counsel sought instructions from the accused. The defence counsel thereafter made application to withdraw as counsel for Mr.

Black and that application was granted. [ 11 ] Over the course of the following months, the defendant sought and obtained fresh counsel and the accused applied to have his guilty plea expunged. [ 12 ] After hearing the expungement application, Judge Harradence dismissed the application and had the matter set for hearing before me. That hearing proceeded on various dates between March 13 and 21, 2017. [ 13 ] Counsel sought and the Court agreed that transcripts would be appropriate to order. The matter was adjourned further to have briefs filed, and for argument by both Crown and Defence.

The proceedings were concluded on June 30, 2017. [ 14 ] The consent of the Attorney General as required under s. 754(1) (

a) of the Criminal Code was filed as another exhibit. [ 15 ] Two binders of exhibits, including 224 under separate tabs, were filed as part of the Crown’s case. Without going through each and every tab, suffice it to say that the bulk of the material filed in this fashion chronicled the accused’s various contacts with the criminal justice system over the years. Included were transcripts of sentencing hearings, pre-sentence reports, and up-to-date daily logs from Correctional Centres. Also various department of Social Service contacts notes that referenced his time as a youth were filed.

Certain contact notes were redacted, however, the bulk of them were filed as complete. Specific notes will be commented on in the decision that follows. The criminal record of the accused was included as an exhibit. [ 16 ] Victim impact statements of the complainant and her common-law husband were filed. [ 17 ] The victim impact statement of Marlene Bird outlined serious physical injuries resulting from the attack by Mr. Black. Ms. Bird had problems speaking as her lip was quite severely injured. She has ongoing difficulties for which she still requires medical attention. The emotional impact that Ms.

Bird outlined is summarized in the Crown’s brief at para. 23. She now has to depend entirely on her common law husband for transportation. Mr. Patrick Lavallee, in his victim impact statement, outlined the difference that this crime has made to their life together. Mr. Lavallee now spends virtually all day everyday, looking after the complainant as opposed to doing the normal things in life that were found enjoyable by both of them prior to the assault. [ 18 ] The Crown’s viva voce evidence first consisted of four people who are associated with the Correctional Services of Canada.

The evidence of Trina Depler, Angie Sinclair, James Gonzo, and Tyler McKinnon, they outlined various programming that would be available to the accused were he sentenced to a period of federal incarceration. The

summary is that virtually all offenders who are sent to the Penitentiary, including dangerous offenders, are given access to programming appropriate to their risk and needs. There is

Aboriginal programming available within the Saskatchewan Penitentiary. It includes high intensity programming tailored to offenders’ needs. One thing of note from Mr. Gonzo’s evidence is that Correctional Services Canada works with dangerous offenders and long term offenders, as well as those on long term supervision in the community. Inter-regional transfers are not unusual.

Dangerous offenders with indeterminate sentences are difficult to release, as it is very difficult to assess whether or not their risks can be properly managed in the community. [ 19 ] In dealing with the two exhibit books filed, again I do not wish to go through each and every exhibit or tab in order. However, there are some that require some comment. [ 20 ] It is evident that Mr. Black has struggled with substance abuse for a long period of time. His addictions issues have existed since 2012 and they have not yet resolved themselves. It is evident that there have been some concerns with Mr.

Black’s anger early on in his contact with the criminal justice system. However, his criminal record does not disclose any prior instances of violence anywhere near the point of what was demonstrated in the present case. [ 21 ] Mr. Black’s criminal record is outlined below: 2003-02-06 BLAINE LAKE SASK (YOUTH COURT)

(1) BREAK ENTER & THEFT SEC 348(1)(

B) CC

(2) FAIL TO ATTEND COURT SEC 145(2)(

B) CC (1-2) PROBATION 12 MOS ON EACH CHG

2003-12-02 SHELLBROOK SASK (YOUTH JUSTICE COURT) 2003-12-02 SHELLBROOK SASK 2005-04-19 SHELLBROOK SASK 2007-03-06 SHELLBROOK SASK 2009-03-24 PRINCE ALBERT SASK 2009-06-12 EDMONTON ALTA

(1) POSS OF PROPERTY OBTAINED BY CRIME OVER $5000 SEC 355(

A) CC (2 CHGS)

(2) FAIL TO COMPLY WITH UNDERTAKING SEC 145(3) CC

(3) FAIL TO ATTEND COURT SEC 145(2)(

A) CC

(1) MISCHIEF UNDER $5000 SEC 430(4) CC

(2) FAIL TO APPEAR SEC 145(5) CC

(1) FAIL TO ATTEND COURT SEC 145(2)(

B) CC

(2) FAIL TO COMPLY WITH PROBATION SEC 137 YCJA THEFT UNDER $5000 SEC 334(

B) CC

(1) THEFT UNDER $5000 SEC 334(

B) CC

(2) FAIL TO COMPLY WITH RECOGNIZANCE SEC 145(3) CC

(1) ATTEMPTED ROBBERY SEC 463- 344 CC (2 CHGS)

(2) FAIL TO COMPLY WITH RECOGNIZANCE SEC 145(3) CC (2 CHGS) (1-3) PROBATION 12 MOS

(1) TIME SERVED (1 DAY) & $600 (2) $100 (1) $100 FINE

(2) SUSPENDED SENTENCE 3 MOS PROBATION TIME SERVED (1 DAY) & PROBATION 4 MOS (1) 30 DAYS & (8 DAYS PRE-SENTENCE CUSTODY) (2) 30 DAYS CONC (1) 6 MOS ON EACH CHG & MANDATORY PROHIBITION ORDER SEC 109 CC (2) 15 DAYS ON EACH CHG 2009-10-08 AIRDRIE ALTA 2010-10-18 EDMONTON ALTA THEFT UNDER $5000 SEC 334(

B) CC

(1) DRIVING WHILE ABILITY IMPAIRED SEC 253(1)(

A) CC

(2) BREAK ENTER & THEFT SEC 348(1)(

E) CC

(3) FALSE ALARM OF FIRE SEC 437 CC 1 DAY & (CREDIT FIR 54 DAYS PRE-SENTENCE CUSTODY) (1) $1500 I-D 21 DAYS & PROH DRI 1 YR (2) 4 MOS & PROBATION 12 MOS (3) 1 MO CONSEC & PROBATION 12 MOS (4) 1 MO CONSEC &

2011-02-10 EDMONTON ALTA 2011-06-13 VEGREVILLE ALTA 2012-04-30 PRINCE ALBERT SASK 2012-11-02 PRINCE ALBERT SASK 2013-11-12

(4) FAIL TO APPEAR SEC 145(5) CC

(1) OPERATE VEHICLE WHILE DISQ SEC 259(4) CC

(2) POSS OF PROPERTY OBTAINED BY CRIME OVER $5000 SEC 355(

A) CC

(1) DRIVING WITH MORE THAN 80 MGS OF ALCOHOL IN BLOOD SEC 253(1)(

B) CC

(2) POSS OF PROPERTY OBTAINED BY CRIME OVER $5000 SEC 355(

A) CC

(3) POSS OF PROPERTY OBTAINED BY CRIME UNDER $5000 SEC 355 (

B) CC

(1) DRIVING WITH MORE THAN 80 MGS OF ALCOHOL IN BLOOD SEC 253(1)(

B) CC

(2) POSS OF PROPERTY OBTAINED BY CRIME SEC 355 CC

(3) POSS OF A

SCHEDULE II SUBSTANCE SEC 4(1) CDS ACT

(4) FAIL TO APPEAR SEC 145(5)(

B) CC

(5) THEFT UNDER $5000 SEC 334(B) (2 CHGS)

(6) FAIL TO COMPLY WITH UNDERTAKING SEC 145(3) CC

(7) THEFT UNDER $5000 SEC 334(

B) CC

(8) THEFT OVER $5000 SEC 334(

A) CC

(1) THEFT UNDER $5000 SEC 334(

B) CC

(2) UNLAWFULLY AT LARGE SEC 145(1)(

B) CC POSS OF PROPERTY OBTAINED BY CRIME OVER $5000 SEC 355(

A) CC

(1) BREAK & ENTER SEC 348(1)(

B) PROBATION 12 MOS (1) 30 DAYS CONSEC (2) 60 DAYS CONSEC (1) 92 DAYS & (CREDIT FOR 28 DAYS PRE-SENTENCE CUSTODY) & PROH DRI 5 YRS (2) 120 DAYS CONSEC (3) 30 DAYS CONC (1) 4 MOS & PROH DRI 3 YRS (2-3) 1 MO ON EACH CHG CONSEC & CONSEC (4) 1 MO CONC (5) 1 MO ON EACH CHG CONSEC & CONSEC (6) 2 MOS CONC (7) 1 MO (8) 3 MOS CONSEC (1) 45 DAYS CONC WITH SENT SERVING

(2) TIME SERVED (4 DAYS) 3 MOS

(1) CSO

PRINCE ALBERT SASK 2013-09-30 PRINCE ALBERT SASK

(2) THEFT UNDER $5000 SEC 334(

B) CC

(2) TIME SERVED [ 22 ] The convictions from June 12, 2009, from Edmonton, Alberta, included two attempted robbery charges. Those convictions prima facie do not appear to comport with my earlier statement that there was very little violence in Mr. Black’s criminal record. The convictions were, however explained during the hearing as being more akin to persistent panhandling outside of a bar in Edmonton rather than actually robbing anyone. Neither of the complainants in those two cases was injured and they easily got out of their situation involving Mr.

Black and his cohort. [ 23 ] I will outline some of the more notable documents filed in Exhibit C-3, starting with Volume I. [ 24 ] Tab 5 was a Pre-Sentence Report from the accused’s youth criminal justice days which makes note of the accused witnessing his mother’s murder. This is also referenced in Volume II, Tab 15, where it was noted that in or around 1994, both the accused and his older sister on the accused’s ninth or tenth birthday, witnessed his mother’s murder. This is one of the more traumatic things that one could imagine a child could live through.

The Pre-Sentence Report states that the common-law partner of Mr. Black’s mother was abusive towards her and to the children during their relationship, and he got completely carried away one afternoon. As indicated, it was the accused’s birthday and he witnessed the man attack his mother with a knife. Apparently she told the accused and his sister to run for help. They went to a neighbour’s place and police and ambulance arrived sometime thereafter. They last saw their mother when she was being taken away on a stretcher by an EMT.

To say that this would have a negative effect on someone’s development is to greatly understate the obvious. [ 25 ] Documents at Tab 5 noted that, in February 2003, he was a low risk to re-offend. The report at Tab 7 noted that he was in grade ten at this time and was doing quite well. The report at Tab 9 indicated that he was attending school and doing well.

Contrary to what had been argued by the defence and agreed to by the Crown, the accused claimed to have a connection to the Indian Posse at that time. [ 26 ] Tab 12 was a Pre-Sentence Report from December 2003, where he was then rated as a high risk to re-offend. In the document noted at Tab 40 he denied he had been in any gang or affiliated with one. In the document found at Tab 60 he expressed a desire to complete a carpentry course and do better for himself in the future. [ 27 ] In Volume II, the following is of note. In November 2013 (Tab 5), he was diagnosed as being HIV positive.

According to the document found at Tab 19, he had some bad behaviour in the Correctional Centre and was noted by the nursing staff as being aggressive towards them and making moves towards them that made them feel uncomfortable in his presence. [ 28 ] The information at Tab 43 was from July 2014, when he was noted again at the Correctional Centre as being quite emotional. In Tab 48, he again denied any association with gangs. Information at Tab 78, on September 14, 2014, he is noted to be on a concoction of eight different medications.

This is confirmed in other tabbed evidence. [ 29 ] After he was remanded on the present charge his prescription drug use in custody continued. He was eventually assaulted in the Correctional Centre in Regina and was subject to some persecution by other inmates as well. The nature of the present crime was the reason for these difficulties. Mr. Black has been primarily remanded to Regina Correctional Centre as his identity is too well known in Prince Albert, which constitutes a danger to him. [ 30 ] As quoted in the Crown’s brief at paras 57 through 68, Dr.

Lohrasbe cited what in his opinion constituted eight separate psychiatric diagnoses. They are as follows: 1) anti-social personality disorder; 2) substance abuse disorder; 3) childhood ADHD; 4) FASD (unconfirmed); 5) a reference was made to Mr. Black’s stutter, which was apparently evident only after the accused witnessed his mother’s murder; 6) the accused had head injuries; 7) alexithymia; and 8) fire setting behaviour.

[ 31 ] Dr. Lohrasbe believed that there were three significant limitations to the confidence with which a psychiatric opinion could be expressed about Mr. Black: first, the unusually complex nature of his psychiatric problems; second, the singular act of significant violence in his history; and third, the accused’s lack of subjective experience at the time of the offence. I believe this third limitation came from the fact that the accused denied specific recollection of the event in question. [ 32 ] Dr.

Lohrasbe opined, an opinion with which I agree, that the injury to the victim in the predicate offence is at the extreme end of the severity spectrum. The lighting on fire of another human being is something that of course is violent in the extreme. Dr. Lohrasbe further took as an aggravating factor that the accused, apparently having walked to the store to buy some candies, he passed by the victim from a distance, saw fire in the general area of the victim’s location and yet ignored it. Dr. Lohrasbe believed that this showed a serious lack of empathy towards the victim. [ 33 ] Dr.

Lohrasbe concluded that “at this time, relatively little can be stated with confidence about what Mr. Black’s prospect for treatment and for risk management in the community in the foreseeable future. Mr. Black’s performance in the past has been poor and he has very few community or family or peer supports to assist him in that regard”. The Crown’s brief at paras. 102 and 103, stated the following: In response to the question as to how the accused would respond to programming and treatment, Dr. Lohrasbe’s answer was inconclusive.

He said “we don’t know, we don’t know, I mean obviously I’m hopeful that he will engage and respond positively” and then later he goes on to say “and until he has been given the opportunity to participate in a complex intensive treatment program it’s just hard to know”. [ 34 ] Further, at para. 126 of the brief, Dr. Lohrasbe is quoted to say “the only facet of risk that is clearly present and moves him into the high risk area is the severity of possible future violence”. [ 35 ] The defence evidence came primarily from Dr. Nicholiachuk who, like Dr.

Lohrasbe, filed his curriculum vitae. with the Court together with a report that the parties shared prior to the hearing. Dr. Nicholiachuk noted that Mr. Black scored in the range where individuals such as he could be expected to recidivate violently at approximately 20% within 4.4 years post release. This could occur in the absence of focus and intensive correctional treatment and appropriate community management strategy. He found himself “in agreement with Dr. Lohrasbe in that it is too early to conclude that Mr. Black cannot be safely managed in the community”. With respect to the fire setting issue, Dr.

Nicholaichuk said “well kids set grass fires and they pull fire alarms. I really don’t know what relevance it has. I mean I’d certainly want to, if I was a treatment provider, pay a lot more attention exploring the index offence because that’s of course why we’re here”. ANALYSIS [ 36 ] In the first instance it would be easy to find that Mr. Black’s behaviour on this particular occasion constituted a dangerous situation and that he was therefore a dangerous offender under the provisions of the Criminal Code . In this case however it is not that easy as I must first fit him into the scheme under

Part XXIV of the Criminal Code , that’s referred to as the dangerous offender provisions, before I can do so. [ 37 ] It is trite to say that

Part XXIV has been enacted by Parliament with a view to the protection of the public from persons who are in themselves dangerous to society: 753

(1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied (

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

a) of the definition of that expression in

section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing … (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 as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint;

[38] It is common ground between the Crown and defence and obvious from the evidence as well, that it is only under the thirdbranch of s. 753(1)(

a) that Mr. Black could be considered as a dangerous offender. [39] Prior to the enactment and inclusion of subsection (iii), the Crown was in a position where they had to prove either subsection(

i) or (ii). However, Parliament saw fit to add subsection (iii) to deal with cases of an extreme nature on their own without the specificneed to prove any pattern of behaviour. One can think of many instances where a person could be found a dangerous offender, and thecase law that has been filed is testament to that. [40] There are a relatively low number of cases dealing with the

interpretation of this subsection. The twofold test is as follows:first the Court must find that the offence is one of a brutal nature and secondly, the Court must conclude that the offender’s behaviour inthe future is unlikely to be inhibited by normal standards of behavior and restraint. [41] Paragraph 44 of the defendant’s brief of law quotes from R v Paxton, 2013 ABQB 750, at para 360, as follows: [360] It is recognized that the Crown must establish the elements of a dangerous offender designation on the criminal standard ofbeyond a reasonable doubt.

In regard to matters that relate to risk or the future, the standard required is not that the Court be satisfiedbeyond a reasonable doubt that the offender will reoffend; rather, the Court must be satisfied beyond a reasonable doubt that there is a“likelihood” that the offender will inflict harm: R v Currie, (SCC), [1997] 2 SCR 260 at para 42.

More specifically, theCourt has to be satisfied beyond a reasonable doubt that the past conduct of the offender is such that it gives rise to the likelihood offuture injury to others: R v Carleton (1981), 1981 ABCA 220 , 32 AR 181 at para 11. [42] The Collins English Dictionary defines “likelihood” as “the condition of being likely or probable; something that is probable”.In determining the probability of recidivism, reference should be made to the following: 1. Dr. Lohrasbe testified that the best predictor of future behaviour is to be found in examining the past behaviour of the individual.

This is commonly accepted as nearly axiomatic and there is nothing in the defendant’s past to indicate that the degree of violence shownin the present situation had ever occurred in the past, and therefore, following on this thought, it seems unlikely that it might occur in thefuture. 2. The predicate offence is not a premeditated offence. It was a spontaneous reaction to a situation that the accused thought wasunsafe for him. His feelings were obviously erroneous (egregiously so), and were coloured by his drinking and his addictions to alcoholand drugs.

The assault was of a relatively short duration, lasting a matter of minutes, and the accused obtained no specific enjoymentfrom the suffering of the complainant in this case. The fact that he ignored “the fire” upon his re-attending close to the crime scene, inmy view, is equivocal. 3. While there was some unspecified reference to accelerant use, there was no clear indication that such was used. Perhaps theclothing worn by the victim was of flammable materials. 4. The accused has expressed remorse both to Dr. Lohrasbe and Dr.

Nicholaichuk and also to the Court in the statement that he readto me at the end of the hearing. 5. The accused knows that he did a bad thing and accepts responsibility for it notwithstanding he applied at one point to expunge hisguilty plea. 6. This behaviour was very unusual for the accused in the sense that his criminal record, while not insignificant, displays a low levelof violence in the past. 7. Gladue factors, as outlined by both psychiatrists and as evidenced in the Gladue report filed by the defence, are significant.

While not in any way determinative in this case, or, indeed other cases of severe physical violence, they are helpful in perhaps givingsome context to the accused’s behavior.

[ 43 ] The defence says that I should not consider the accused’s history in deciding the issue of whether or not the brutal nature of the actions is proven beyond a reasonable doubt. I do not agree with that position but it does not in any event affect my decision. [ 44 ] Neither Dr. Lohrasbe nor Dr. Nicholaichuk could give an opinion on the likelihood of this individual to re-offend violently. [ 45 ] Dr. Nicholaichuk indicated in his evidence that there was no connection between the severity of an event and the likelihood of its repetition ie. recidivism by an accused person.

One of the best examples of that is spousal murders where extreme violence is exhibited but there is a very low rate of recidivism. [ 46 ] The Crown’s cases filed in support of their application are distinguishable. In R v Toewes , 2012 ABQB 283 , the decision was based on the fact that the accused in that case was diagnosed as a psychopath. Clearly, that is not Mr. Black’s situation.

As indicated above, he does have certain psychiatric issues to deal with but psychopathy is not one of them. [ 47 ] The Mattson decision ( R v Mattson , 2011 ABPC 228 ) referred to in para 59 of the defendant’s brief, quotes the following, “once again this case can be distinguished as the offender also had nine convictions arising from aggressive violent outbursts”. At the risk of being repetitive, this is not Mr.

Black’s situation. [ 48 ] Quoting again from the defendant’s brief, para 60, in the case of R v Monias , 2014 ABQB 147 , the offender broke into the apartment of two senior citizens on separate occasions and violently robbed each of them. He beat both of them on the head and body, and both seniors suffered physical and psychological injuries. The Court considered the categories set out under

section 753 and concluded as follows: [62] … Further, while his behaviour in relation to the recent offences was “brutal” in the ordinary sense of the word, it was not of such a brutal nature so as to compel the conclusion that Mr. Monias’ behaviour in the future is unlikely to be inhibited by normal standards of behaviour restraint. [ 49 ] It is that which is mandated by the Criminal Code as being required to be proven beyond a reasonable doubt, that in my opinion makes it impossible to find that Mr. Black is indeed of that nature.

I am not compelled to find, notwithstanding the very serious nature of the charge itself, and the behaviour of the accused, that the offender’s behaviour “…associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behavior in the future is unlikely to be inhibited by normal standards of behavioural restraint”. [ 50 ] Neither expert opinion differed in many respects about the future prospects related to the accused.

In this case, keeping in mind that proof beyond a reasonable doubt has some particular significance, I find that the onus of proof has not been met. The Crown’s witness on that point, at pages 31 and 32 of his report states as follows: At this time, relatively little can be stated with confidence about Mr. Black’s prospect for treatment and for risk management in the community in the foreseeable future. The treatment programs that he has taken in the past were relatively brief, and not at the intensity of the kinds of treatment programs he will be offered by the Correctional Services of Canada ...

Hence the possibility that intense and prolonged treatment can reduce his risk to the point he can be managed in the community cannot be ruled out, it has not been tried. (emphasis my own) [ 51 ] Based on this opinion, it can be concluded that Mr. Black will be treated appropriately and if one cannot rule out the likelihood of his management in the community after such treatment, the standard of proof has not been met. The Correctional Services Employees testified that Mr. Black will, indeed, obtain the treatment that he needs. Therefore, in this instance, the Crown’s application to have Mr.

Black found to be a dangerous offender is dismissed. [ 52 ] This, however, does not conclude my deliberations on the issues under

Part XXIV, “Dangerous Offenders” provisions. The question remains, what is an appropriate alternate sentence for the accused?

[ 53 ]

Section 753.1(1) provides as follows: 753.1

(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a longterm offender if it is satisfied that (

a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted; (

b) there is a substantial risk that the offender will reoffend; and (

c) there is a reasonable possibility of eventual control of the risk in the community. [ 54 ] The three part test to be applied must leave me satisfied that a sentence of a minimum two years would be appropriate. There is no issue that, given this crime, a potentially life imprisonment offence, and the grisly facts that support the conviction, denunciation and deterrence must be of primary importance in determining a sentence. Clearly a sentence in excess of two years is appropriate. [ 55 ] Second, there is substantial risk that the accused will re-offend.

This test is not nearly as onerous on the Crown as the test used to determine whether an offender is a Dangerous Offender or not, but it is met in these circumstances. It is conceded by the defence that Mr. Black be designated as a long term offender. Paragraph 140 of the defendant’s brief supports this conclusion. [ 56 ] Third, based on the evidence of both expert witnesses, I find that there is a reasonable possibility that the risk that the accused poses can be managed in the community. [ 57 ] Finally, it seems to me that Mr.

Black, even though he has avoided the designation of Dangerous Offender under the provisions of the Criminal Code , will not have an easy road ahead of him. He has a long period of incarceration to serve and another long period of supervision in the community to be supervised by Correctional Services in order to successfully get on with his life. Dated this 30 th day of August, A.D. 2017, at the City of Prince Albert, in the Province of Saskatchewan. ________________________ S.D. Loewen, J