Her Majesty the Queen - v. -, 2014 SKPC 005

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 005 Date: January 10, 2014 Information: 24415080 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jason Blanckenberg Appearing: Jeff Lubyk For the Crown Kevin Hill For the Accused DECISION S. C. CARTER, J INTRODUCTION: [ 1 ] On June 8, 2011, the accused, Jason Blanckenberg, pleaded guilty to the following offence: On or about November 16, 2010, at or near Prince Albert District, in the Province of Saskatchewan did wound, maim, disfigure or endanger the life of Alexander Freemon Harris thereby committing an aggravated assault contrary to

section 268 of the Criminal Code .

[ 2 ] After the guilty plea the Crown made application under

Part XXIV,

section 752.1 of the Criminal Code to have the accused remanded for the purpose of an assessment in aid of a dangerous offender application. The application was granted on December 22, 2011. Dr. Lohrasbe, a Psychiatrist, interviewed and assessed Blanckenberg filing his report with the Court by letter dated February 11, 2012. [ 3 ] The Crown sought and received the consent of the Attorney General to have the accused declared a dangerous offender. The hearing pursuant to s. 753 of the Code finally took place from January 21 – 24, 2013. Additional evidence was heard on January 28 and July 19, 2013.

Final arguments took place on November 21, 2013. [1] [ 4 ] The Crown called five witnesses during the hearing. These were: Tyler McKenzie, Manager of the Prince Albert Parole Office, Stephanie Hodgson, Correctional Program Officer of Corrections Canada, Allan Ballan, Parole Officer, Cheryl Anderson- Clouatre, Assistant Deputy Director of the Prince Albert Correctional Centre and Dr. Lohrasbe, a Forensic Psychiatrist. The Crown also filed Corrections Canada records documenting the accused’s federal incarceration. The Defence called Dr. Nicholaichuk, a Psychologist as well as the accused, Mr.

Blanckenberg. [ 5 ] The Crown’s position in this matter is that Mr. Blanckenberg meets the criteria found in section 753(1)(

a) of the Code and should be declared to be a dangerous offender. The Crown argues that the accused should then be sentenced to an indeterminate term of imprisonment. The position of the Defence is that Blanckenberg does not meet the dangerous offender criteria and should be given a determinant sentence. If declared to be a dangerous offender, the defence argues that Blanckenberg be given a determinant sentence with long term supervision to follow upon his release. THE LEGISLATION: 753.

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

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

a) of the definition of that expression in

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

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

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

b) of the definition of that expression in

section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.

(1.1) If the court is satisfied that the offence for which the offender is convicted is a primary designated offence for which it would be appropriate to impose a sentence of imprisonment of two years or more and that the offender was convicted previously at least twice of a primary designated offence and was sentenced to at least two years of imprisonment for each of those convictions, the conditions in paragraph (1)(

a) or ( b ), as the case may be, are presumed to have been met unless the contrary is proved on a balance of probabilities.

(2) An application under subsection (1) must be made before sentence is imposed on the offender unless

(

a) before the imposition of sentence, the prosecutor gives notice to the offender of a possible intention to make an application under

section 752.1 and an application under subsection (1) not later than six months after that imposition; and (

b) at the time of the application under subsection (1) that is not later than six months after the imposition of sentence, it is shown that relevant evidence that was not reasonably available to the prosecutor at the time of the imposition of sentence became available in the interim.

(3) Notwithstanding subsection 752.1(1), an application under that subsection may be made after the imposition of sentence or after an offender begins to serve the sentence in a case to which paragraphs (2)(

a) and (

b) apply.

(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. FACTS: [ 6 ] The facts of the November 16, 2010 aggravated assault (the predicate offence) are as follows. The accused was an inmate in the maximum security unit at the Saskatchewan Penitentiary at Prince Albert, Saskatchewan. He and others were having supper. The accused and two others became involved in a fight with an inmate named Wigmore. Andrew Harris, the complainant in the predicate offence, stepped in to defend Wigmore and began fighting with an inmate named Ballantyne.

As Harris was trying to keep Ballantyne away from Wigmore the accused, Jason Blanckenberg, bent down and reached behind a garbage container. He grabbed hold of what was later identified as a homemade knife and began hitting Harris in the head with it. He hit Harris six or seven times using a thrusting motion as he did so. The guards were alerted. Pepper spray was used to quell the fighting and Harris was taken to the Health Care Clinic at the Penitentiary. He was then taken to the Hospital at Prince Albert where his wounds were sutured.

The injuries he suffered were two small lacerations to the left side of his head the largest of which was two inches long. At the time of this offence the accused and others were intoxicated from alcohol which Blanckenberg had brewed in his cell and shared with other inmates. BLANCKENBERG’S CRIMINAL RECORD: 1997-05-22 ASSAULT CBH PROBATION 15 MOS TORONTO ONT SEC 267 CC (YOUTH COURT) (TORONTO PS 014400-96) 1997-10-22 ASSAULT SEC 266 CC PROBATION 2 YRS TORONTO ONT (YOUTH COURT) (TORONTO PS 014400-96) 2001-03-06

(1) CARRYING CONCEALED WEAPON (1-2) TIME SERVED (4 MOS TORONTO ONT SEC 90 CC & 9 DAYS) & PROBATION (YOUTH COURT)

(2) ROBBERY WITH VIOLENCE 18 MOS SEC 343 (

A) CC

(2 CHGS) (TORONTO PS 014400-96) 2001-04-23

(1) POSS OF A PROHIBITED OR (1-2) 1 DAY ON EACH CHG TORONTO ONT RESTRICTED WEAPON KNOWING CONC ITS POSS IS UNAUTHORIZED SEC 92(2) CC

(2) OBSTRUCT PEACE OFFICER SEC 129 CC (TORONTO PS 014400-96) 2001-05-16 ASSAULT SEC 266 CC 7 DAYS, (4 DAYS PRE- TORONTO ONT SENTENCE CUSTODY) (TORONTO PS 14400-96) 2002-02-04 POSS OF PROPERTY OBTAINED BY 4 MOS CONDITIONAL TORONTO ONT CRIME UNDER $5000 SENTENCE ORDER, SEC 354-355(

B) CC PROB 1 YR, (12 DAYS PRE-SENTENCE CUSTODY) (TORONTO PS 014400-96) 2002-09-13 FAIL TO COMPLY WITH 1 DAY ON EACH CHG CONC TORONTO ONT RECOGNIZANCE (45 DAYS PRE-SENTENCE SEC 145(3) (2 CHGS) CUSTODY) (TORONTO PS 0144-96) 2002-11-01

(1) BREAK ENTER, THEFT (1-2) 60 DAYS, PROBATION TORONTO ONT SEC 348(1) (

B) CC 18 MOS ON EACH CHG

(2) THEFT UNDER $5000 CONC, (129 DAYS PRE- SEC 334(

B) CC (2CHGS) SENTENCE CUSTODY) (TORONTO PS 014400-96) 2003-06-25

(1) POSS OF PROPERTY OBTAINED (1) 1 DAY, (30 DAYS PRE- TORONTO ONT BY CRIME OVER $5000 SENTENCE CUSTODY) SEC 354-355 (

A) CC

(2) FAIL TO COMPLY WITH PROBATION (2) 1 DAY CONC, (5 DAYS ORDER PRE-SENTENCE CUSTODY) SEC 733.1(1) CC

(TORONTO PS 014400-96) 2003-08-28

(1) BREAK ENTER, COMMIT (1-3) SUSP SENT, PROB 18 NEWMARKET ONT SEC 348(1) (

B) CC MOS ON EACH CHG CONC,

(2) POSS OF PROPERTY OBTAINED (90 DAYS PRE-SENTENCE BY CRIME OVER $5000 CUSTODY) SEC 354 CC

(3) FAIL TO COMPLY WITH DISPOSITION SEC 26 YO ACT (YORK REG PS 02-001187) 2003-10-02

(1) AGGRAVATED ASSAULT (1) 58 MOS, (9 MOS, 15 DAYS TORONTO ONT SEC 268 CC PRE-SENTENCE CUSTODY)

(2) ROBBERY (FIREARM) (2) 48 MOS CONC SEC 344 CC & MANDATORY PROHIB (YORK REG PS 02-001187) ORDER SEC 109 CC 2008-09-10 CARRYING CONCEALED WEAPON 30 DAYS (40 DAYS PRE- KINGSTON ONT SEC 90 CC SENTENCE CUSTODY) (DC NAPANEE 0223559171) 2009-08-17 ASSAULT WITH A WEAPON 2 YRS SUDBURY ONT SEC 267(

A) CC (INST MILLHAVEN) *END OF CONVICTIONS AND DISCHARGES BLANCKENBERG’S BACKGROUND: [ 7 ] The following is excerpted from Dr. Lohrasbe’s report: [2] History The following information was obtained from Mr. Blanckenberg (there are some minor differences from information obtained from his mother, as described below). He was born in Cape Town, South Africa and was adopted at the age of three months into a South African family of African origin. His parents had two biological children, his sisters Bronwyn and Glenda, who much older; he estimates they are respectively 20 and 15 years older than himself.

The entire family, including several maternal aunts and uncles, moved to Canada when he was six years old. They settled in Toronto. His parents worked hard, and for many years managed a large building complex together. Mr. Blanckenberg has no memory of life in South Africa. His memories of his early childhood in Toronto are largely positive. He states that he was given considerable attention and affection by both parents, and his extended family who all lived close by. His sisters had their own apartments nearby and the family got together frequently, “ the family was always tight ”.

He describes all members of his family as “ good people who don’t get into trouble with the law ” and appeared actually ashamed at the mention of his parents adding, “It broke my mom’s heart when I got into trouble over and over” . His father died in 1999 of an aortic aneurysm, an event that has a significant effect

on Mr. Blanckenberg; he was very close to his father. His mother and two sisters are alive and in Toronto. Mr. Blanckenberg recalls that as a child his parents took him to church most Sundays but he could not recall the church or the denomination. Asked about his current spiritual beliefs, he stated, “ I believe in God. Nothing specific, but I do pray ”. (At another point in the interview remarked, quite spontaneously, that he would accept whatever sentence was meted out to him since “ it’ll be what God wants ”.

It was his only spontaneous ‘spiritual’ comment.) His otherwise happy childhood was marred by a traumatic event that occurred when he was nine years old. A middle-aged man who lived in the same apartment block named Edwin befriended Mr. Blanckenberg and then lured him into coming down a stairwell in the building. Mr. Blanckenberg recalls that at that point he had no reason to be concerned as had no awareness of sexual abuse. In the stairwell, Edwin lowered Mr. Blanckenberg’s pants, bent him over, and proceeded to have anal intercourse. The entire sequence of events occurred quickly and Mr.

Blanckenberg cannot recall if any lubricant was used. He was left confused and bewildered by the incident. He knew that “ something was not right ” but, not surprisingly, could not articulate just what was wrong. He intuitively felt ashamed and did not disclose this incident of sexual abuse for many years. It was when he was a 17 year old travelling in South Africa with his mother that, in a moment of emotional vulnerability, he described what had happened. He recalls that his mother was devastated. In the years since, has often spoken of “ wanting to deal with it ” but is at a loss as to how he should do so.

On further exploration it emerged that he is aware of some basics; the link between that traumatic event and feelings of vulnerability, shame and anger, and the subsequent role of such emotions in his identification with antisocial and aggressive youth. He has some awareness of the attraction of substance abuse from someone with that history. Mr. Blanckenberg does not recall any other instances of sexual abuse. He does not describe ever being physically abused by an adult during his childhood. He states that he was generally a healthy child and does not recall any unusual hospitalizations.

He does not recall any instances of loss of consciousness as a child. However, he describes losing consciousness after being struck by a bear bottle on the head during a fight when he was about 20 years old. He does not recall being told about the period of loss of consciousness. He does not describe being hospitalized or having any neurological sequelae to that incident. He does not recall ever being seen by a counselor or mental health professional while in school. He does recall that he was suspended from school on many occasions for “ yelling and getting mad ”.

He does not recall ever being diagnosed specifically with a learning disorder or with Attention Deficit Hyperactivity Disorder (ADHD), but he knows that he was placed in ‘special’ classes, exacerbating his sense of shame and “ being different ” from other children. Mr. Blanckenberg recalls that even in special classes his grades were poor. He could not recall how many elementary or high schools he had attended. He did not find alternative ways to boost his self-regard; he was not interested in and did not participate in any sports.

When I asked if he was sure that he had reached grade 11 before he dropped out (as had been reported earlier), he looked perplexed and stated that he was not. Throughout his teens he had “plenty of girlfriends” and extensive sexual liaisons but no committed or long term relationships. He has no children. His three-month relationship with Natasha in 2008/2009 was in his recall perhaps his longest relationship. He stated that they got along well. He has had no contact with her since his arrest. Mr.

Blanckenberg states that he first consumed alcohol when he was about age 14 when it was a common accompaniment of social gathers within his peer group. In the years since his pattern was to binge –drink, with excessive consumption over short periods of time. Such binges were often followed with hangovers and withdrawal symptoms. He has experienced blackouts as well as “DT’s” (Delirium Tremens, also termed Alcohol Withdrawal Delirium). He does not recall ever having seizures during withdrawal. Asked when he last consumed alcohol, Mr.

Blanckenberg stated that it was on the 16 November 2010, the night of the index offence. However he also acknowledged that some weeks later, in December 2010, he attempted to brew alcohol again and was apprehended prior to consuming a new batch. He has made no attempts at brewing alcohol since then. Mr. Blanckenberg states that he began to use street drugs at around age 14 years. His drug of choice during his teens was ‘E’

(Ecstasy, MDMA, an amphetamine). At around age 19 he first snorted powdered cocaine, another stimulant, but has never used crack cocaine or intravenous cocaine. He states that his last use of powdered cocaine was in prison in summer of 2011. It was also the summer of 2011 that he last smoked marijuana, which he first sampled at age 13 and has consumed intermittently ever since. Mr. Blanckenberg states that he used morphine on a single occasion, the very time that he was charged after a positive urinalysis. When directly questioned, Mr.

Blanckenberg denied the use of ‘crystal meth’ (speed, another amphetamine) as had been documented in a prior report. He states however that he has sold crystal meth on the street, saw its impact on users, and decided that it was not for him. When asked why he stopped using alcohol and drugs in prison, stated “ well there’s been nothing around ” but then added “…and also I don’t want to use it anymore…I would mostly use to forget my childhood abuse, but I have to find a different way to deal with my problems ”.

Despite his ability to identify links between the incident of childhood abuse and his problems when encouraged to think through his past, there is a trite, perfunctory quality to Mr. Blanckenberg’s quick attribution of all his struggles to the incident of sexual abuse. However, I did not get the sense that he indulges in ‘excuse making’. Rather, he cannot articulate his thoughts in a more sophisticated or elaborate manner. THE EVIDENCE: [ 8 ] The bulk of the Crown’s witnesses testified as to violence prevention, programming, educational and other programming within the Federal Prairie Region.

Witnesses also explained the inmate intake process, case planning and management and the roles and responsibilities of Parole Officers both within and outside of a Penitentiary. The last Crown witness testified as to how the accused has behaved while on remand at the Prince Albert Correctional Centre throughout this long hearing process. Another major part of the Crown’s case, were the documents generated as a result of Blanckenberg’s two federal incarcerations.

These included psychological reports as well as incident reports with respect to violent confrontations which resulted in either voluntary or involuntary stints in solitary confinement. [ 9 ] Dr. Lohrasbe was the first and most important witness called by the Crown. He is a Forensic Psychiatrist who has assessed thousands of people as well as testified at all levels of Court in British Columbia, the Yukon, Northwest Territories as well as Alberta and Saskatchewan. In preparing his assessment of Mr.

Blanckenberg, he interviewed him over two days for a total period of six hours during which time various tests were administered by him. He reviewed the accused’s medical records at the Prince Albert Correctional Centre and spoke to the Supervising Nurse concerning his mental state and progress. He also reviewed the accused’s entire file generated during his two federal incarcerations as well as his complete criminal record. In addition, he interviewed Blanckenberg’s mother over the telephone. [ 10 ] Dr.

Lohrasbe’s impression of the accused during the interview process was best summarized by the following paragraph found on page 3 of his report: Mr. Blanckenberg did not have any great difficulty remaining focused on the topic under discussion. His attention span was adequate and he was not unduly distractible. He was not fidgety or agitated and there were no abnormalities in motor behavior. At no point was he aggressive, intimidating, or threatening with me. On the contrary, despite his imposing physique, numerous tattoos, and prison- inspired haircut, Mr. Blanckenberg came across as oddly vulnerable.

I got the impression of an immature man who was emotionally and adolescent, although street-smart and toughened by years in prison. Despite the fact that he has emulated some of the machismo that is a common front among younger inmates, his posturing is imprecise and superficial, and he does not exhibit the glibness, cunning, superficial charm, lack of empathy, lack of remorse, and interpersonal manipulativeness that are features of a hardened psychopathic personality. [3] [ 11 ] He found the accused became increasingly sad when detailed questions were asked about his future plans, separation from his family etc.

At page 4 of the report, Dr. Lohrasbe stated “beneath his ‘tough guy’ persona, he is a sad, forlorn man, struggling with despair”. [4] He was also well aware of his need for supervision and programming to deter violent behavior. In the report, at pages 4-5, the accused is quoted as saying: “ I don’t want to just get out into the city. I don’t want to be with no parole and no halfway house. I want to do the violence offender program. I know I need structure and rules and support. I asked for it last time. I told the Parole Board that I needed support, that I couldn’t just go out into the city ”. [5]

[ 12 ] In his assessment, Dr. Lohrasbe found four areas of “diagnostic significance”. These are 1. Antisocial Personality Disorder (APD);

(2) Substance Abuse and Dependence;

(3) Learning Disorders and,

(4) Mood Disorder. The first of these, APD, is common among inmates of prisons and jails. Its hallmarks are “irritability, aggression, impulsivity, deceitfulness, irresponsibility, and recklessness” [6] . Because APD is so common (60 to 90% of inmates), Dr. Lohrasbe notes that it is “…of limited value to guide treatment, prognosis or risk assessment”. [7] He specifically noted that Mr.

Blanckenberg does not have a psychopathic personality which he describes as a “…a combination of two personality disorders; an antisocial personality disorder… and a particularly malignant form of narcissistic personality disorder (NPD).” [8] He went on to say “while there is little doubt that Mr.

Blanckenberg has a antisocial personality disorder, he does not have the relentlessly self-centered, vindictive, entitled and un-empathetic, cold interpersonal style that is typical of psychopathy” [9] (emphasis added). [ 13 ] With respect to substance abuse, Lohrasbe noted that the accused is an “established brew master” within the correctional system and that alcohol has been the dominant substance he has used in recent years. He self-admitted to the use of marijuana and cocaine until the summer of 2011 but stated that he has not used alcohol since the predicate offence. [ 14 ] Dr.

Lohrasbe noted that it was readily apparent when interviewing the accused that he has problems reading and writing, struggling with even simple words. Although, he did not delve into it further, he noted that “comprehensive assessment to pinpoint his learning disabilities” [10] will be required. [ 15 ] The final significant diagnostic, is Mr. Blanckenberg’s mood disorder. Dr. Lohrasbe is of the opinion that Blanckenberg has suffered from this for some time because it had been noted in the previous assessments by psychologists within the federal correctional system.

He said that he felt that the mood disorder was at least a dysthymic disorder but that probably there were recurrent episodes of major depression. [11] At the time of the assessment by Dr. Lohrasbe, Blanckenberg’s mood had been properly stabilized by medication both according to him as well as the supervising nurse and psychiatrist at the Prince Albert Correctional Centre. DR. LOHRASBE’S RISK ASSESSMENT: [ 16 ] In assessing the offender’s risk, Dr. Lohrasbe applied the Historical, Clinical Risk Management “assessment scheme”.

He described this assessment scheme as “…a broadly based violence risk assessment instrument, covering a large number of known risk factors.” [12] There are twenty risk factors within this assessment scheme of which ten are historical, five present and five future. Hence the acronym HCR20. With respect to the historical risk factors, all were present (previous violence, young age at first violent incident, relationship instability, substance abuse, early maladjustment, personality disorder, prior supervision failure, major mental illness- depression) except psychopathy.

Employment problems were not assessable because he had never had the opportunity to find or keep a job. [ 17 ] With respect to present risk factors, Dr. Lohrasbe found that Blanckenberg had some insights into his habits, values, degree of self-control etc. but found them to be “superficial and naive”. [13] [ 18 ] Negative attitudes toward the law, people in authority etc. were suggested based upon his history but Dr.

Lohrasbe noted “there does appear to be some shift in his attitude recently, the result of his fear of a lengthy incarceration, but the depth and longevity of any changes are as yet unknown”. [14] He found that impulsivity was present as well but it could not be rated as to whether he was unresponsive to treatment because he had never been given the opportunity to take any. [ 19 ] With respect to the future factors portion of the HCR20.

Two factors were present (exposure to destabilization and stress) and three could not be rated (plans lacking feasibility, lack of personal support and non-compliance with remediation attempts). [ 20 ] In

summary, Dr. Lohrasbe stated “of the risk factors that can be assessed, a majority are present, including several that are deeply entrenched and are directly related to risk for violence. Overall, this suggests a high risk for violence”. [15] He further stated that: …[The] available information strongly indicates that Mr. Blanckenberg has risk factors “across the board”, i.e. both static and dynamic risk factors are present in abundance. At this time therefore the risk for violence in the foreseeable future has to be rated as high in the realm of likelihood, context (many) nature, multiple types and severity (he has used weapons). [16]

[ 21 ] Having said this however, Dr. Lohrasbe went on to note: However, there appear to be some positive change in the past year or so, since the index offence. These can be regarded as potential positive movement on dynamic risk factors. Firstly, Mr. Blanckenberg is now acutely aware that he faces very serious consequences for any future acts of violence.

Moreover, his awareness that the Courts take his violence very seriously comes at a time when he, for the first time in his life, acted violently without any intention to do so, i.e. he is now aware that he is at risk for violence simply by the act of becoming intoxicated. Hence Mr. Blanckenberg has come to grasp, through direct experience, that intoxication by itself is a major risk factor, doing others and himself great harm. Abstaining from alcohol and drugs, and understanding the potential for violence that he exhibits when intoxicated is a major positive dynamic feature if maintained indefinitely.

It is however disheartening that despite his experience he did attempt to make ‘brew’ again, and did use drugs some months later. If there is genuine movement on this important dynamic risk factor, therefore, it is fragile and intermittent as well as recent. Effective treatment of Mr. Blanckenberg’s mood disorder, if maintained in the coming years, will assist in risk reduction through promoting the mental stability required to learn and internalize what one has learned. Mr.

Blanckenberg has experienced the benefits of mood stabilization as it has assisted him in remaining non-reactive in what can often be a confrontational environment. This is a positive dynamic development. Mr. Blanckenberg is now motivated to learn, attend programs, and change.

Although his motivation is pragmatic – staying out of prison if he ever gets the chance to rejoin the community – it is not uncommon for such externally imposed motivations to eventually combine with deeper, more internal motivations (remorse, awareness, that life is slipping by, search for meaning) and persist in an offender’s commitment to transforming his personality, relationships, lifestyle, and values. This is a positive dynamic development. Finally, Mr. Blanckenberg has had enough self-control to implement positive changes for more than the past year, i.e. since the index offence.

Other than being caught in December 2010 with brew ingredients, Mr. Blanckenberg has shown that he is capable of implementing a turnaround in his behavior when he is motivated enough to do so. He has not gotten into any fights, has accrued no further institutional charges, and has stayed out of segregation. This is yet another positive dynamic development [17] [ 22 ] Finally, to again quote extensively from Dr. Lohrasbe’s report, he had the following to say with respect to the treatability of Mr. Blanckenberg: Despite his ‘good behavior’ recently, an overview of Mr.

Blanckenberg’s behavior during his two federal incarcerations suggest a rigidity and persistence of anti-sociality that has led not just to detention during both sentences but in fact to further incarcerations due to offences committed while in a correctional facility. There is very little in that track record to inspire optimism in the coming years. Nevertheless, two broad considerations suggest that it is premature and unreasonable to conclude that Mr. Blanckenberg is untreatable. Firstly, as recent and as limited as they are, there has been a shift in dynamic risk factors, as outlined above.

Hence, compared to a year ago, there is reason to be more optimistic that, if given the opportunity, Mr. Blanckenberg may be able to sustain his motivation and his self-control through a period of therapeutic programming. Secondly, the fact that Mr. Blanckenberg had never been given the opportunity to participate in appropriate programs makes it impossible to anticipate what may or may not be helpful. His learning disorders may indeed interfere with him being able to understand and incorporate much that is taught during such programs, but he is hardly the only offender who has had to cope with such challenges.

Without a sustained attempted (sic) at a comprehensive violent offender program, it would be unreasonable to conclude that Mr. Blanckenberg is untreatable.

It follows that it would be unreasonable to conclude that the high risk that he poses at this time for future acts of violence could not be reduced within the foreseeable future to the point where he could be safely managed within the community. (It is my understanding, from informal enquiries, that at present learning disordered and intellectually-challenged offender’s treatment have to be at a Regional Treatment Centre (RTC) to attend the Integrated Program Correctional Model, within which there is an Adapted Program developed by CSC. However, programs are constantly evolving.)

Mr. Blanckenberg will require much preparation before there is any chance of a successful reintegration into the community. In addition to a comprehensive violent offender program, he requires an upgraded education, improved social skills, and vocational skills. He is realistic enough to know that his skills and capacities are modest and hopes to work as a house painter or in construction, or some combination of the two, when he is back in the community.

He will need an extraordinary amount of support when he is first released as he will be starting afresh, with no community support as he intends to stay far away from Ontario and Toronto in particular. He will require a lengthy period of transition so that he can demonstrate his capacity and ability to apply the gains he has made between now and the time of such release. It will be important for him to be monitored closely and provided additional support if he encounters major obstacles. The longest period of parole would be of assistance in safe risk management in the community.” [18] [ 23 ] Dr.

Nicholaichuk, a Clinical and Forensic Psychologist, testified on behalf of the defence. He reviewed Dr. Lohrasbe’s psychiatric assessments as well as the binder of CSC materials, the offender’s criminal record and the videos of the predicate offence. He administered six separate tests with Mr. Blanckenberg. He assessed his IQ to be in the “mildly retarded” range meaning that “approximately 99% of individuals assessed on this test would score higher than did Mr. Blanckenberg” [19] .

Quoting from the Diagnostic and Statistical Manual of Mental Disorders (4 th Edition TR2000), this group of people is described as: This group constitutes the largest segment (about 85%) of those with the disorder. As a group, people with this level of mental retardation typically develop social and communication skills during the preschool years (ages 0-5 years), have a minimal impairment in sensorimotor areas, and often are not distinguishable from children without mental retardation until a later age. By their late teens, they can acquire academic skills up to approximately the sixth grade level.

During their adult years, they usually achieve social and vocational skills adequate for minimal self-support, but may need supervision, guidance, and assistance, especially when under unusual social or economic stress. With appropriate supports, individuals with Mild Mental Retardation can usually live successfully in the community, either independently or in supervised settings. [20] [ 24 ] Dr.

Nicholaichuk found Blanckenberg’s history to be “entirely consistent” with the description quoted above, noting that people in this IQ range are easily led and highly suggestible with pro-criminal associates and substance abuse exacerbating the situation. [ 25 ] Blanckenberg’s score on the Verbal Comprehension Index put him again at the low second percentile. This is a measure of “verbal concept formations, verbal reasoning and knowledge acquired from one’s environment” [21] . Dr. Nicholaichuk states : This level of verbal ability is extremely low and has undoubtedly contributed to Mr.

Blanckenberg’s difficulties in areas such as following directions, resisting negative social influences such as those commonly found in correctional institutions and criminal social subgroups. Their ability to interact with others can be expected to be significantly compromised due to lack of communication skills and proper understanding of normal social nuances. It is likely that Mr. Blanckenberg failed to understand the importance of much of what was being told to do by authorities because his ability to understand the language and express himself is more impaired than 98% of individuals scored on this ability.

These results are entirely consistent with his history of significant learning impairment coupled with a failure to understand his limitations and adapt to them. [22] [ 26 ] The Perceptual Reasoning Index score of Mr. Blanckenberg was below the first percentile as was his Working memory Index score. To quote Dr. Nicholaichuk once again: …this is a measure of his ability to temporarily retain information in memory, perform some mental operation or manipulation of it, and produce a result. Working memory involves attention, concentration, mental control, and reasoning.

Contemporary research indicates that working memory is an essential component of other high order cognitive processes. Mr. Blanckenberg was extremely limited in this area. Ninety-nine percent of those tested would be expected to score higher than he. Again, these results are consistent with his history of failure while in the community and in institutions, as well as his difficulty anticipating how others would interpret his conversation and action. This degree of disability requires accommodation rather than short term or acute treatment.

Instructions he is given should be modified to take his limitations into account. Individuals such as this learn better when they are shown what to do and then being allowed to practice the skills being taught and then provided with feedback on their performance. Unless this is done, Mr. Blanckenberg will likely continue to fail in his attempts to learn to live pro-socially. Further, treatment provided via verbal instructions should include teaching which is concrete and with clear direction. Of course, these materials will have to be delivered with some degree of repetition. [23] [ 27 ] Dr.

Nicholaichuk estimated Blanckenberg’s age based intellectual functioning to be approximately at the 7 year old level. He noted however, as did Dr. Lohrasbe, that of necessity Blanckenberg has too adapted to prison life by possessing “some degree of street smarts”. Dr. Nicholaichuk goes on to say: however, these adaptive skills learned in prison are not likely to be of great assistance if and when he returns to the community. He will have to learn a more pro-social set of skills. In his interview with Dr. Lohrasbe as well as myself, Mr.

Blanckenberg appears to understand this deficit and expressed a willingness to learn the skills he requires to live in the community without resorting to crime. The approximately fourteen months he has managed to be free of violence at the PACC is perhaps a measure of his motivation and desire to change. [24]

[ 28 ] With respect to academic functioning, the results of the test administered by Dr. Nicholaichuk, places Blanckenberg at a Grade 3\4 level. Dr. Nicholaichuk indicated this places him below one percent of people his age. These results do not mean that Mr. Blanckenberg cannot learn. However, attempts at education upgrading or vocational training must take into his account his limitations. He should not be accused of being unmotivated because he does not understand levels of skill training which may be beyond his abilities. [25] [ 29 ] The last test of Mr. Blanckenberg’s abilities was measured by Dr.

Nicholaichuk using the Wisconsin Card Sort Test which tests a person’s ability to “problem solve and to some degree evaluate his executive functioning, his ability to plan and anticipate the likely consequences of his behavior.” [26] Once again Blanckenberg’s result was below the 1 st percentile. Dr. Nicholaichuk noted that during any process of treatment and community supervision, Blanckenberg “will require a considerable amount of support and guidance.” [27] DR. NICHOLAICHUK’S RISK ASSESSMENT: [ 30 ] In dealing with Blanckenberg’s criminal risk assessment, Dr.

Nicholaichuk administered the Level of Service Inventory-R and the Violence Risk Scale, both of which measure risk based upon the assumption that Blanckenberg receives no meaningful treatment prior to release. On the former test, Blanckenberg’s probability of recidivism was 61% within a year following release from custody. On the latter, which specifically tests for violent recidivism, his score was 40%. [ 31 ] In his final recommendations, Dr. Nicholaichuk said: I find myself in agreement with Dr. Lohrasbe in that it is too early to determine whether or nor Mr.

Blanckenberg can be successfully managed in the community as he has yet to receive the treatment and supervision required to make this a reasonable possibility. He cannot be considered a treatment failure as he has not had the opportunity to participate in appropriate treatment. As ordinary correctional programs are not designed for individuals with his level of learning impairment, he should be transferred to a treatment Centre such as the Regional Psychiatric Centre. These facilities are organized to deliver services to individuals with significant mental health and learning problems.

If he is transferred to the community, as both he and Dr. Lohrasbe indicated, his release should be accompanied by a placement in a supervised residence and accompanied by intensive supervision and support. Due to his limitations, he would require these services even if he had not committed a crime. Individuals such as Mr. Blanckenberg require accommodation for the limitations such as skill building, vocational training, and active treatment.

Of course, it is recommended that his current regime of medications be continued as these appear to have a salutary effect on his ability to regulate his mood and manage his aggression. As of the date of this assessment, he appears to be motivated to learn the skills he requires. [28] [ 32 ] Jason Blanckenberg testified. He candidly answered all questions put to him giving more detail behind his convictions for which there were really no meaningful transcripts. He has pleaded guilty to everything he has ever been charged with.

He testified to his upbringing, early schooling and the bullying he received, the death of his father, as well as his time in the federal correctional system. He stated, as he did to Dr. Lohrasbe, that he knows he must change his ways and is prepared to do so. His mood stabilizing drugs are working. He no longer makes brew for himself or others and he does not use drugs. He has learned, over his months on remand, to walk away from confrontations rather than to lash out as he once did.

Although he did not get the opportunity to take programming during his last federal sentence he said that when he is sentenced on this matter that “I want to do the program and I am sober now, I’m not – like, I’m a different person. I want to actively change and better myself by taking these programs.” [29] ISSUES: 1. Has the Crown proven beyond a reasonable doubt that the accused must be declared a dangerous offender? 2. If he must be declared a dangerous offender, what is the appropriate sentence? 3. If he is not found to be a dangerous offender, what is the appropriate sentence? ANALYSIS:

1. Has the Crown proven beyond a reasonable doubt that the accused must be declared a dangerous offender? [ 33 ] Section 753(1) of the Criminal Code requires that the Court find an offender to be dangerous if one or more of the factors in subsections (a)(i), (ii) or (iii) are established beyond a reasonable doubt by the evidence. Subsection (1.1) deems and offender to be dangerous if the criteria in that subsection are met. [ 34 ] In Mr. Blanckenberg’s case, section 753(1.1) applies to him.

The offence, for which he is to be sentenced, aggravated assault, is a primary designated offence for which it would be appropriate to sentence him to imprisonment for two years or more. His last two federal sentences of imprisonment were also primary designated offences, those being aggravated assault and assault with a weapon for which he was sentenced to at least two years. In these circumstances, Mr.

Blanckenberg is deemed to be a dangerous offender “unless the contrary is proved on a balance of probabilities”. [ 35 ] The evidence reveals a young man who, due to undiagnosed learning disabilities struggled in school, was bullied and did what he could to become accepted leading him to the world of substance abuse and violence. The violence he has displayed has recently been fueled by alcohol or drugs which has resulted in repeated acts of violence in the community as well as in the federal institution.

I cannot find on a balance of probabilities that the evidence proves that he is not a dangerous offender and therefore the presumption in s. 753(1.1) has not been rebutted. I am required by law, and do now find, Mr. Blanckenberg to be a dangerous offender. 2 . If he must be declared a dangerous offender, what is the appropriate sentence? [ 36 ] Section 753(4.1) requires the Court to sentence a dangerous offender for an in-determinant 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” (emphasis added). This is the new wording of the Act which came into force on the 2 nd of July, 2008. Prior to that date, a Court was required to consider whether there was a reasonable possibility of eventual control of the risk posed by the offender. [ 37 ] In R. v. Downs Justice Mills, in commenting on this section, stated: [7] …Parliament is no longer concerned with possibilities but rather expectations.

The Court has previously interpreted “possibility” with meaning something more than mere hope, which of course eliminated the concept that anything is possible. The concept of a possibility greater than a mere hope or empty conjecture does not equate with an expectation that something will occur or not occur. The Court is still faced with a notion of predicting the future and expectation of a result is on a higher continuum than a possibility of a result (emphasis in original). [9] …the words ‘eventual control” suggest that there is a timeline upon which the offender’s future activities can be measured.

It suggests that there is a process that society is prepared to accept to take place over time that will allow for the reintegration of the offender into the community. [12] The concept of eventual control has been replaced by the concept of adequate protection of the public. I do not equate the words “adequately protect the public” as a virtual guarantee that the offender would not commit in the future an offence described.

The use of the words “satisfied”, “reasonable expectation” and “adequately protect the public” all suggest that Parliament has not mandated a notion of absolute safety to the public in this sentencing consideration. [30] [ 38 ] In the evidence of both Dr. Lohrasbe and Dr. Nicholaichuk, each expert was of the view that Mr. Blanckenberg would need a considerable amount of time to obtain the skills necessary to be released into the community and thereafter would require lengthy supervision. Indeed Dr. Nicholaichuk stated that Mr.

Blanckenberg would need long term supervision in group settings or sheltered workshops even if he had not committed a crime. [ 39 ] Over almost all of the now 878 days on remand, Mr. Blanckenberg has ceased making brew, ceased using alcohol or drugs and has walked away from situations which, in the past, would have resulted in him acting violently. The evidence the Court heard through Ms. Anderson-Clouatre, at the Prince Albert Correctional Centre, showed a calm inmate who is one of the cleaners on the unit and also prepares food and has a cell to himself.

She has never had any negative interactions with him and noted that he was attending

schooling, one hour per day, being one on one contact with the teacher. When he was taken into the remand Centre he was placed in a medium security level and has remained at that level. Her contact with Blanckenberg has always been positive. This is no doubt due to the fact that his mood disorder has now been successfully medicated. He recognizes that the medication he is taking is very helpful to him. He has expressed to Dr. Lohrasbe and Dr. Nicholaichuk as well as to the Court that he wants to take programming which will help him maintain these changes which he recognizes in himself.

In order to do this he needs to learn to read and write in an environment which takes account of and accommodates his learning disabilities which have been so clearly delineated by Dr. Nicholaichuk. Both of the experts are of the opinion that he can learn, mild retardation is accommodated for in our society in various ways in both housing and employment. According to Dr. Nicholaichuk, Blanckenberg would qualify for admission in RCP Saskatoon, where he can be taught in a manner which Dr. Nicholaichuk testified will work for him.

If his present attitude of wanting to change remains, it is reasonable to expect that he will learn not to be violent. Put another way, as did both Dr. Lohrasbe and Dr. Nicholaichuk, it would be unreasonable for the Court to conclude that treatment will not work for Mr. Blanckenberg because he has never had any. In my view, he must be given this opportunity. Once he has undergone treatment he will have to be supervised for a long time. To give him the support he will need to maintain his resolve. Lengthy supervision will adequately protect society from Mr.

Blanckenberg as that phrase has been defined by Justice Mills in the Downs decision. Therefore a determinate sentence followed by long term supervision is the appropriate sentence in this case. 3. If he is not found to be a dangerous offender, what is the appropriate sentence? [ 40 ] Given my findings this issue will not be dealt with. SENTENCE: [ 41 ] When Mr. Blanckenberg was sentenced for aggravated assault in 2003, he received 58 months incarceration after nine months and 15 days in pre-sentence custody which amounted to a sentence of over six years in jail.

In my view, the appropriate determinant sentence for the offence which the Court is sentencing him today is 96 months less the 28 months he has served in pre-sentence custody, leaving a remainder of 68 months to serve. Upon his release he will be subject to a long term supervision order for eight years. [ 42 ] In addition I make the following orders: a.) Pursuant to

section 109 of the Criminal Code Mr. Blanckenberg will be prohibited from possessing any of the items mentioned therein for the rest of his life. b.) Pursuant to s. 487.051 of the Criminal Code authorization is given to take appropriate samples of bodily substance from Mr. Blanckenberg for the purpose of DNA analysis. c.) Pursuant to s. 760 of the Criminal Code , the transcript of the testimony given by witnesses including copies of Dr. Lohrasbe’s and Dr. Nicholaichuk’s reports, together with the reasons of this Court, will be forwarded to Correctional Services Canada. ____________________ S. C. Carter, J.

APPENDIX A The delay in this matter was a result of Legal Aid counsel withdrawing on June 8, 2011, just prior to the accused electing provincial Court and pleading guilty to the offence of aggravated assault. Legal Aid counsel was back on the record on September 14, 2011 but withdrew again on December 22, 2011. On February 22, 2012, the Court ordered that counsel be appointed for the accused and on March 9, 2012 he appeared with counsel having accepted the appointment. On July 13, 2013 that counsel withdrew from the record. A new Court appointment was ordered and accepted by Mr. Armitage on July 31, 2012.

On November 20, 2012 a pre-trial conference was held which confirmed that both Crown and defence were ready to proceed on the hearing commencing January 21, 2013. A final Crown witness was to be called on April 8, 2013 but on that date Mr. Hill appeared with the accused advising that his firm had been asked to take over from Mr. Armitage in this matter. Mr. Hill was then appointed by the Court to act for the accused. The last Crown witness was called on July 19, 2013. Final arguments were to take place on September 12, 2013 but due to Mr. Hill having to familiarize himself

with the file, read the transcripts of the evidence and reports of the psychologist and psychiatrist, final arguments did not take place until November 3, 2013, by that time the accused had been on remand for 828 days.