R v MDG, 2023 ABKB 201

Court of King’s Bench of Alberta Citation: R v MDG, 2023 ABKB 201 Date: 20230411 Docket: 190022533Q1 Registry: Edmonton Between: His Majesty the King Crown - and - MDG Offender Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the Victims of the 2003 and 2017 sexual assaults referred to in this decision must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Corrected judgment: A corrigendum was issued on April 11, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment

of the Honourable Justice S.E. Richardson _______________________________________________________ I. INTRODUCTION [ 1 ] On March 4, 2021, MDG (the Offender) was found guilty of manslaughter in the death of his younger brother (the predicate offence). [ 2 ] The Crown seeks to have the Offender designated a Dangerous Offender. Defence Counsel argues that the statutory prerequisites to make such a finding are absent. [ 3 ] For the reasons that follow, MDG is designated a Dangerous Offender. [ 4 ] The Crown seeks an indeterminate sentence for the manslaughter conviction.

Defence Counsel argues that an appropriate sentence is 10 to 12 years in jail. [ 5 ] For the reasons that follow, MDG is sentenced to 12 years in jail followed by a 10 year Long Term Supervision Order. II. THE PREDICATE OFFENCE [ 6 ] On the morning of January 5, 2019, the 19-year-old Victim made arrangements to visit two similarly aged friends. On the way there, he met up with his older brother, the Offender, and invited the Offender to join the others for the afternoon.

Before arriving, the two brothers drank about ¼ of a bottle of vodka. [ 7 ] The Victim had recently been spending time with his older brother, trying to rebuild their relationship after a long period where the Offender was absent from the family due to lengthy jail sentences. [ 8 ] They arrived at the friend’s apartment and for a time, the four men were listening to music, playing video games, drinking alcohol, smoking marijuana, and talking. After a couple of hours, the Victim and the Offender left to purchase more alcohol.

Surveillance footage from the liquor store shows the two men had an easy familiarity with each other. They were talking and gesturing in a manner that displayed a comfortable relationship. [ 9 ] They returned to the apartment and the four men continued to socialize, drink, and smoke marijuana for 2 hours. When one of the friends mentioned the name of a third party, the Offender became immediately enraged, went into the bathroom, and banged on the door in anger.

The Offender’s reaction surprised the three others as it was out of character from the tenor of the socializing that they had enjoyed to that point. [ 10 ] While the Offender was banging on the bathroom door in anger, the Victim went into the bedroom and texted one of the friends in the apartment saying that he did not want the Offender in the apartment. The Victim then called 911 and pretended to be requesting a taxi to the apartment.

He said the apartment address loudly, and then whispered to the 911 operator “my brother is having an episode” in a voice that was clearly seeking help. [ 11 ] The Offender returned to the living room and apologized, saying he would fix or pay for the damage he caused in the bathroom. The Offender and the Victim returned to where they had been sitting and continued talking. [ 12 ] Without warning, the Offender started aggressively slapping the Victim’s face. The force of these slaps escalated to the point where the Victim’s eyeglasses flew off his face.

The Victim’s response to this aggression was to verbally and repeatedly try to calm down the Offender and diffuse the Offender’s anger. [ 13 ] The Offender continued this assaultive behaviour toward the Victim intermittently for approximately 2 hours from his initial burst of rage at the mention of the third party’s name. The Offender’s assaultive behaviour toward the Victim escalated to the point where he pushed the Victim in the chest, which caused the Victim to fall into the glass patio doors.

This push was not precipitated by any obvious trigger. [ 14 ] At this point, the Victim got up, pulled out a knife, and told the Offender, “If you come near me I’ll slice you.” The Victim used his cell phone to call their mother. The Victim was scared and asked for help dealing with his older brother. He called out the apartment address and then call ended. [ 15 ] The two friends were alarmed at the Offender’s escalating violence.

They both fled to the patio and jumped off the balcony to escape the situation. [ 16 ] The Victim and Offender’s mother was concerned about what was happening and video called the Victim back. The Victim panned the apartment with the camera/phone. The Offender knew their mother was on the video call. Their mother saw the Offender approximately 12 feet in front of Victim. She saw the Offender take several good swallows of vodka. She described the Offender as visibly angry. His fists were clenched, and he was pacing back and forth very quickly and gathering energy.

He was tapping his chin on the side of his face, which she interpreted to mean he was getting ready to attack. He was getting himself worked up. He was calling the

Victim out to fight. [17] Their mother described the Victim as “trying a bit to defend himself” but also not wanting to argue. She explained that theVictim seemed scared and almost in a panic but was trying to stay calm. The Victim asked for help and wanted his father to come over. [18] Via this video call, their mother witnessed the Offender advance toward the Victim. The phone dropped and their motherheard the entire struggle. After a short time of wrestling noises, the Victim started screaming.

Then the screaming stopped and only theOffender was audible. [19] As the Victim and the Offender wrestled together, they moved from the living room into the bathroom hallway, and finallyended up in the kitchen. At the beginning of this wrestling, the Offender suffered some non-life-threatening cuts from the Victim’s knife.While they were both upright, the Offender used a knife to inflict a deep back entry stab wound that pierced the Victim’s lung. By thetime the Victim and the Offender were in the kitchen, the Victim was already critically wounded.

The Victim ended up on his back onthe kitchen floor where the Offender repeatedly stabbed the Victim with a knife. After the Offender stopped stabbing the Victim, hekicked and stomped on the Victim’s body, and said, “You threatened to stab me?” [20] The Victim died of loss of blood and malfunction of the left lung due to multiple stab wounds. The Victim received stabwounds both from the Victim’s own knife, and from a knife from the kitchen of the apartment with which the Offender armed himself.The Victim had over a dozen lacerations and abrasions of varying degrees of seriousness to his head and neck.

His injuries included eightsignificant stab wounds to his torso, a deep stab wound to his upper left arm that pierced through one side to the other, and a deep cut tothe middle of that same arm which cut the triceps muscle. [21] Police attended and saw the Offender walking down a nearby back alley. Upon seeing the police, the Offender immediatelythrew a bloody knife used in the attack into a nearby residential back yard. III. CIRCUMSTANCES OF THE OFFENDER [22] The Offender is a 36-year-old Indigenous man.

There is no question that he has suffered because of his Indigenous heritage.The Offender’s Indigenous systemic and background factors (Gladue factors) are many, as outlined in the 2017 and 2021 reportsprepared pursuant to R v Gladue, (SCC), [1999] 1 SCR 688 [Gladue].

A) Family History of Poverty, Substance Abuse, and Domestic Violence [23] The Offender’s parents struggled with poverty, alcoholism, and domestic violence. Violence has been endemic in theOffender’s family life. As a youngster, the Offender witnessed significant domestic violence against his mother by various partners. [24] The Offender’s mother moved the family periodically throughout Alberta and Saskatchewan either to escape domesticviolence or to find work. [25] When the Offender was 10 years old, his mother met her current partner.

They had four children together, none of whom wereever in taken into the care of Child and Family Services (CFS). This man, like his mother, is hard working and sober. Their home life isnow stable.

B) Separation from Family of Origin and History of Foster Care: [26] Many of the Offender’s maternal family members grew up in foster care. His mother spent her entire youth in non-Indigenousfoster homes. [27] The Offender’s parents separated before he turned one year old. The Offender has had little contact with his father since. [28] After his parents separated, his mother voluntarily entered an alcohol treatment program for three months and placed theOffender in the care of CFS. She was successful in her treatment efforts and the Offender was returned to her when he was 16 monthsold.

When the Offender was three years old, he was again placed in the care of CFS for 18 months because of a complaint about hismother’s alcohol use. He returned to live with his family at age 5. When the Offender was 7 years old, he was placed in the care of CFSdue to violence in the home against his mother by her domestic partner. [29] The Offender’s own three children are also in care. The oldest child was apprehended in 2016 at age one. The other twochildren were both apprehended from the hospital immediately after their birth.

The Offender’s mother presently raises all three of thesechildren. [30] Following the predicate offence, the Offender’s mother and stepfather have ceased all contact with the Offender. TheOffender has no family or community support system at the present time.

C) History of Family Death by Violence and Suicide [31] Several of the Offender’s family members have died violent deaths either at their own hands or at the hands of others.

D) Personal History of Violence:

[ 32 ] When the Offender was approximately 7 years old, he reported to his mother that he had been physically and sexually abused while in foster care and sexually abused by a babysitter while living with his mother. The police investigation into the foster care sexual assault allegation stalled when the Offender’s mother moved to Saskatchewan to escape a violent partner. [ 33 ] The Offender also experienced two other incidents of sexual violence. The first was inflicted by a peer who introduced the Offender to sniffing inhalants.

That person attempted to force the Offender into sexual intercourse but was ultimately unsuccessful. The second was inflicted by a friend’s older brother during a sleep-over at the friend’s house. The Offender and his friend were forced to watch while the older brother and his girlfriend had intercourse. [ 34 ] When the Offender was 30 months old and while in the care of a babysitter, he suffered a traumatic brain injury, which required surgery. The Offender’s mother was advised by physicians that the Offender would likely have a change of behaviour due to the brain injury.

At the time, the family was living in Peace River. The Offender’s mother struggled to get the necessary supports in place to assist the Offender. This struggle was magnified by the family moving between Alberta and Saskatchewan.

E) Personal History of Substance Abuse [ 35 ] The Offender was exposed to substance abuse at a very young age. He has abused alcohol since he was 13 years old, first trying it when he was eight years old. He started sniffing gas at the age of 13 and this solvent abuse overtook much of his daily life for several years. He was smoking cannabis marijuana regularly by the age of 14. [ 36 ] When the Offender started sniffing gas, his behaviour at home started to deteriorate. He stopped observing the rules of the household, especially the curfew. He regularly left the house after hours to use inhalants.

He started to skip school. His behaviour at school became violent toward staff and other students, which resulted in suspensions. The Offender has since recovered from this inhalant addiction. [ 37 ] As a youth, the Offender was offered many treatment opportunities for his substance abuse in custody as part of his youth sentences. The Offender’s mother also assisted him in seeking out community treatment options. When the Offender was 19 years old, he completed a voluntary six-week residential alcohol treatment program at Beaver Lake.

Following the successful completion of this program, the Offender was sober for three weeks. However, he reconnected with an uncle and then consumed alcohol for six straight weeks. This relapse continued until he committed his first manslaughter offence.

F) Negative Behaviours, Low Level of Education and Gang Involvement [ 38 ] The Offender started engaging in rule-violating behaviour at a very early age. When he was four years old and while living in a foster home, he set a bed on fire. By age five was wandering away from home regularly and stealing from businesses by age six. These behaviours persisted and displayed an ongoing lack of impulse control and a disregard for the consequences associated to his behaviour. [ 39 ] The Offender was required to repeat grade six because of the number of suspensions and his truancy.

The Offender never completed this repeated grade, and this ended his formal education. However, he obtained his GED while incarcerated. He currently reads a lot and at a high conceptual level. His IQ is within the normal range. Dr Will noted that despite the Offender’s adolescent inhalant abuse and childhood brain injury, he does not display any widespread cognitive impairments. [ 40 ] During the Offender’s time in youth custody, he started associating with other inmates involved in a gang lifestyle.

By age 19 while on remand after being arrested for the death of his uncle, the Offender fully identified as a gang member. He quickly assumed a leadership role in the gang while in custody, resulting in several institutional attacks on other inmates and group protests within the institution. However, since 2012, the Offender has ceased all gang association.

G) Personal History with Criminal Justice [ 41 ] Much of the Offender’s youth was spent serving various sentences in custody. These in-custody sentences, combined with his three occasions in foster care resulted in more of the Offender’s youth being spent in institutional settings than with his family. The Offender’s criminal record began at age 13. His first sentence was 18 months open custody, which was imposed for several convictions, including an assault causing bodily harm to a classmate.

During that time, the Offender participated in some treatment and maintained the support of his family. [ 42 ] In 2003, when the Offender was almost 17 years old, he was convicted of sexually assaulting his mother and received a sentence of 12 months secure custody. [ 43 ] At age 19, the Offender was convicted of manslaughter for killing his uncle and was sentenced to five years jail. While on statutory release from that sentence, he was convicted of attempted robbery of a neighbourhood pharmacy and was sentenced to 30 months jail consecutive.

He served to warrant expiry on both the manslaughter and attempted robbery sentences. [ 44 ] When the Offender was released in 2013, he was placed on a peace bond pursuant to s 810.2 of the Criminal Code of Canada , RSC 1985, c C-46 ( Criminal Code ), which he served without serious incident. But for one breach conviction, for which he received a $200 fine, he remained free of any convictions for two and a half years. [ 45 ] During this time, the Offender lived in High Prairie and worked as cleaning staff in a detox center. He worked at the center for 2.5 years, was a good employee, and maintained his sobriety.

His employer even encouraged him to take courses to acquire the certification to be an addictions counsellor. This is the only period of employment in the Offender’s life. It is also during this period that the first of the Offender’s three children was born.

[46] In late 2015, the Offender quit his cleaning job in High Prairie and returned to Edmonton. In June 2016, when the Offenderwas 30 years old, he sexually assaulted his 16-year-old stepsister and received a sentence of six months jail followed by 12 monthsprobation. For virtually all of 2018 he was on probation and reporting weekly in person to a probation officer. Within a month ofcompleting his probation, he committed the predicate offence. [47] Throughout his youth and adult sentences, the Offender has reoffended often while on a form of early release, or within ashort period of time after the completion of a sentence. IV. STATUTORY FRAMEWORK: CRIMINAL CODESS 753(1)(

A) AND 753(1)(B) [48] Since its first consideration of the dangerous offender legislation in R v Lyons, (SCC), [1987] 2 SCR 309[Lyons], the Supreme Court of Canada has maintained that this regime is designed to capture a narrow class of offender: see para 62. Tothat end, the Criminal Code statutory regime requires a finding of dangerousness where the Court is satisfied: 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 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 otherpersons of his or her behaviour, or……. (

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

b) of 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. [49] These subsections are disjunctive in that each

section provides a stand-alone ground for finding that the offender is a threatunder s 753(1): R v Boutilier, 2017 SCC 64 [Boutilier] at para 18. [50] If an offender is designated a dangerous offender, the analysis enters the second stage, which involves an assessment of theappropriate sentence. [51] At the designation stage, there are several elements to the analysis under s 753(1)(a), which must be proven by the Crownbeyond a reasonable doubt. The first element is that the predicate offence must be a serious personal injury offence.

It is agreed thatmanslaughter meets this definition. [52] The designation stage has both backward-looking and forward-looking components. The Court must look at the pastbehaviour of the offender and determine whether the conduct constitutes a pattern within s 753(1)(a)(

i) or (ii). Then, the Court mustconduct a prospective assessment of dangerousness and risk. Intractability is considered in the assessment of future risk: R v Runions,2023 ABCA 29 [Runions] at para 10 –

Section 753 does not require proof beyond a reasonable doubt that the offender will reoffend,as such a standard is generally considered impossible to meet: R v Currie, (SCC), [1997] 2 SCR 260 [Currie] at para42. It is the likelihood of violent re-offense that must be established beyond a reasonable doubt: Currie at paras 25 and 42; Boutilier atparas 36 – 37. [53] The Crown argues that the Offender can be found to be a dangerous offender under either or both routes established in s753(1)(a)(

i) and (ii) and under s 753(1)(b). Defence counsel argues that none of these statutory routes are engaged. [54] Pursuant to s 753(1)(a)(

i) and (ii), the Crown must prove beyond a reasonable doubt that the Offender has demonstrated apattern of either repetitive behaviour or persistent aggressive behaviour, informed by each of these subsections. Neither “repetitive” nor“persistent” are defined in the Criminal Code. However, Courts have held that they are not synonymous. “Persistent” refers to enduringbehaviour or continuity of conduct that occurs over a prolonged period of time: R v Haley, 2016 BCSC 1144 at para 295. “Repetitive”refers to behaviour that repeats itself.

When determining whether a pattern of repetitive behaviour or persistent aggressive behaviourexists, the fewer the incidents, the more similar the behaviour must be: R v Neve, 1999 ABCA 206 at para 113. [55] The remaining elements that the Crown must prove beyond a reasonable doubt are: (1) that the predicate offence forms part ofa broader pattern of violence, aggressive or brutal conduct, or a failure to control sexual impulses; (2) that there is a high likelihood ofharmful recidivism, meaning conduct endangering the life, safety or physical well being of others, or in the case of s 753(1)(b), causinginjury, pain, or other evil; and (3) that this violent conduct is intractable, meaning behaviour that the Offender is unable to surmount:Lyons, (SCC), [1987] 2 SCR 309 at para 43; Boutilier para 25 – 28; R v Wolfleg, 2018 ABCA 222 at para 68. [56] In relation to past conduct, the Crown must prove beyond a reasonable doubt that the conduct is such that it gives rise to thelikelihood of future injury to others: R v Carleton, 1981 ABCA 220, aff’d (SCC), [1983] 2 SCR 58 at para 11.

[57] Unlike ss 753(1)(a)(

i) and (ii), s 753(1)(

b) does not require proof of any pattern. Rather, the analysis focuses on whether theCrown has proven beyond a reasonable doubt that the Offender’s conduct in any sexual matter has shown a failure to control his sexualimpulses. The “failure to control” test involves a straight factual investigation into the entirety of the circumstances, including the factssurrounding the commission of the predicate offence: R v Oliver, 1997 ABCA 49 at para 9 – 10. This

section also requires a prospectiveassessment of whether the Offender poses a likelihood of violent reoffending through a failure to control his sexual impulses in thefuture.

A) Designation Stage pursuant to ss 753(1)(a)(

i) or (ii) of the Criminal Code: isthere a pattern of repetitive or persistent aggressive behaviour? [58] Counsel disagree on what convictions can be considered in assessing whether a pattern of behaviour exists under ss 753(1)(a)(

i) or (ii), and on whether the convictions that are considered are similar enough to warrant a finding that a pattern exists. [59] The Crown seeks to rely upon the following convictions in support of their claim that a pattern under either ss 753(1)(a)(

i) or(ii) has been proven beyond a reasonable doubt: • 2003-05-12: youth sexual assault conviction pursuant to s 271 of the Criminal Code where the Victim was the Offender’s mother; • 2006-04-03: adult manslaughter conviction pursuant to s 236 of the Criminal Code where the Victim was the Offender’s uncle; • 2010-12-16: adult attempted robbery conviction pursuant to s 463/344 of the Criminal Code where the Victim was a pharmacyclerk; • 2017-08-28: adult sexual assault conviction pursuant to s 271 of the Criminal Code where the Victim was the Offender’sstepsister; • 2021-04-04: adult manslaughter conviction pursuant to s 236 of the Criminal Code where the Victim was the Offender’sstepbrother (the predicate offence). [60] “Pattern” is not defined in the Criminal Code.

However, a pattern may be established in two ways: (1) where there aresimilarities in terms of the kinds of offences committed; or (2) where the offences themselves are not similar in kind, but in result interms of the degree of violence or aggression.

There is no requirement that the past criminal conduct all be of the same or similar form.The fact that an offender commits a variety of offences does not mean that a pattern does not exist: R v Neve, 1999 ABCA 206 at para111. 1) The Offender’s Youth Conviction [61] The first issue to be addressed is whether the Offender’s 2003 youth sexual assault conviction can be considered indetermining whether the Crown has proven beyond a reasonable doubt that a pattern under ss 753(1)(a)(

i) or (ii) exists. Defence counselrelies upon R v George, (BC CA), [1998] BCJ No 1505 (CA) [George] and R v Walsh, 2017 BCCA 195, for theproposition that youth convictions should not be considered at this stage. [62] I disagree that the Offender’s youth conviction should not be considered in the determination of whether a pattern has beenestablished. [63] The criminal law in Canada treats the crimes of minors as qualitatively different from the crimes of adults. This does not meanthat young people are not accountable for the offences they commit.

Minors are decidedly but differently accountable in that they areentitled to a presumption of diminished moral blameworthiness or culpability due to their age because they have heightened vulnerability,less maturity, and a reduced capacity for moral judgement: R v B(D), 2008 SCC 25 at para 41. [64] In the context of a dangerous offender application, youth convictions can be considered in determining whether a pattern ofrepetitive or persistent aggressive behaviour exists.

However, different weight must be placed on any youth convictions to account forthe age of the offender at the time the offence was committed, the level of violence, and the circumstances of and motivation for theyouth offence. [65] In R v Sohal, 2019 BCSC 2271, the Court concluded that on a dangerous offender application, youth convictions should beconsidered and weighed differently than adult convictions.

While a youth record can be used as a basis for such an application, thepresumption is one of diminished moral culpability and the onus is on the Crown to show that a youth record establishes therequirements of a dangerous offender application: see para 167. In that case, the Court determined that Mr Sohal’s two youth sexualassault convictions could be considered in determining whether the Crown had established a pattern.

Those offences had a high degree of similarity to the predicate offence and were both committed within months of Mr Sohal’s 18th birthday. [66] In R v Charley, 2017 ONSC 3496, the Court concluded that despite the reduced moral culpability of young people, for thepurposes of a dangerous offender application, youth convictions can be considered by a court in assessing whether a pattern exists.However, when the reduced moral culpability of a young person is combined with a lack of similarity between two offences beingconsidered, a pattern of persistent aggressive behaviour will not be made out: see paras 33 – 38. [67] In this case, the Offender’s 2003 sexual assault conviction will be considered in determining whether a pattern exists.

TheOffender was 16 years and 10 months old when the offence was committed, which places him on the older end of the youth spectrum.The Offender’s conduct involved forcing intercourse on his mother who was sleeping on the sofa in the early morning hours. Theoffence was committed in the familiar environment of the Offender’s home. The Offender was intoxicated by drugs and alcohol. Thelevel of violence and violation toward his mother was significant. She awoke to this violation of her bodily integrity, spoke to the

Offender, told him to stop and tried to push him away. The Offender ignored these verbal and physical prompts and persisted. His explanation that he thought the Victim was a female friend does not lessen the level of violence he committed. His conduct was not transitory. It was purposeful and it continued until his sexual satisfaction was achieved. 2) The Offender’s Manslaughter Convictions [ 68 ] Defence counsel argues that only the Offender’s two manslaughter convictions can be considered on the question of whether a pattern exists. Defence counsel further argues that there are insufficient similarities between the two killings to conclude that a pattern pursuant to ss 753(1)(a)(

i) or (ii) exists. [ 69 ] I disagree that the two manslaughter convictions lack similarity. Both offences were committed against male family members. Both were committed after a lengthy interaction of familiarity and socialization that included excessive alcohol consumption by the Offender and the victim and after the Offender had also consumed cannabis. Both involved a knife as a weapon. Both involved a similar number of stab wounds to the victims (ten to his stepbrother and nine to his uncle). In both cases, the victims were stabbed and critically wounded before the Offender applied blunt force trauma.

In the death of the Offender’s uncle, this was effected with a 2 x 4. In the death of the Offender’s stepbrother, it was effected by stomping the Victim with his feet. Both cases suggest a prolonged period of rage as illustrated by an excessive number of stab wounds followed by extensive blunt force trauma. In the 2006 manslaughter, the victim’s face was unrecognizable to the attending police officers due to the severity of the injuries inflicted by the Offender.

In both cases, the Offender fled the scene leaving the victims alone and disposed of the weapons after the attacks. [ 70 ] Defence counsel argues that since manslaughter is a general intent offence, it should carry less weight than a specific intent offence when considering whether a pattern exists under s 753(1)(a)(ii). The case law does not support this proposition. The simple fact of a conviction lends little to the determination of whether an offender has exhibited a substantial degree of indifference to the consequences of their aggressive behaviour.

While the particulars of a predicate offence must be considered, the sentencing court must examine the mental state of an offender more broadly on the basis of the evidence as a whole to determine whether there exists a pattern of persistent aggressive behaviour showing a substantial degree of indifference to the reasonably foreseeable consequences to others: R v Montgrand , 2017 SKCA 49 [ Montgrand ], at para 25 . An offender rarely measures the moral quality of his act at the time of a personal injury offence.

The attitude of the offender must be examined more broadly to fulfil Parliament’s intention; namely, to identify the truly evil personality type what has no compassion for others at any time: George at para 23 . [ 71 ] The evidence of the prolonged violence, severity of force inflicted, the use of two weapons and leaving the victims alone at the scene in both manslaughters betrays a substantial degree of indifference by the Offender to the reasonably foreseeable consequences of his action. 3) The Offender’s Moral Blameworthiness [ 72 ] Defence counsel argues that less weight should be placed on the Offender’s conduct during the predicate offence because there were elements of self-defence to his conduct.

I disagree. Self-defence was argued at trial and dismissed. At this sentencing stage, I do not accept that the Offender enjoys reduced moral responsibility for his conduct because the Victim produced a knife. The Victim produced his knife only after suffering hours of repeated and escalating violence by the Offender. When the Victim produced the knife, the Victim and the Offender were at least 12 feet apart and the Victim did not advance on the Offender with the knife.

When the Victim attempted to diffuse the situation by producing the knife, he concurrently called their mother and sought her help to deal with the Offender. [ 73 ] Included in the evidence relevant to the Offender’s mental state during the predicate offence is civilian witness evidence to the whole interaction between the Offender and the Victim leading up to the attack by the Offender.

Through this evidence, the Court was able to determine the following: the benign triggering event for the Offender’s initial rage; the Offender’s post-rage conduct in assaulting the Victim; the Victim’s passive response to the repeated face-slapping assaults; the escalation of the Offender’s assault on the Victim when he struck the Victim hard enough to send the Victim’s eyeglasses flying off his face; the Victim’s continued passive responses and attempts to diffuse the Offender’s anger, the escalation of the Offender’s violence by forcefully pushing the Victim into the patio doors, and the Victim’s eventual production of a knife. [ 74 ] The Offender’s mother was able to see the Offender over a video call in the moments immediately preceding the Offender’s deadly attack on the Victim,.

She spoke to the Offender and attempted calm the situation. The Offender is her son. She knew him better than anyone. She saw familiar signs of rage and anger from the Offender that was fuelled by alcohol. She recognized that the Offender was gathering his physical resources in order to attack the Victim. [ 75 ] The following factors contribute to the conduct of the Offender on the predicate offence: The Victim was a family member who was voluntarily in the Offender’s company, and who had an easy familiarity that comes from being around family members. The violence was unbridled.

It consisted of multiple stab wounds followed by multiple stomps to the injured body of the Victim. The Offender was intoxicated at the time and used alcohol to “fuel” himself immediately before his final, fatal attack. The Victim did nothing to trigger the Offender’s rage.

The Victim took multiple steps to attempt to diffuse the Offender’s anger as the violence escalated. 4) The Offender’s Gladue Factors [ 76 ] Defence counsel argues that the Offender’s Gladue factors must be considered when determining whether a pattern of behaviour exists and submits that the Court should consider the motivation for the Offender’s crimes and how, if at all, those motivations are anchored in the Offender’s Gladue factors. [ 77 ] I recognize that the Offender’s life has been marred by many Gladue factors, which are outlined above.

However, because the paramount principle in the dangerous offender regime is public safety, Gladue factors play a limited role at the designation stage. In Gladue , the Court identified two different considerations that must inform any sentence for an Indigenous offender: (1) the unique

systemic or background factors that may have played a

part in bringing the offender before the courts and, (2) the types of sentencing procedures and sanctions that may be appropriate in the circumstances for the offender because of his particular Indigenous heritage or connection: Gladue at para 66 . [ 78 ] Gladue factors can be relevant to determining whether culturally sensitive programming might enhance an offender’s prospects of rehabilitation and treatability: R v Moise , 2015 SKCA 59 . Thus, Gladue factors should be considered at the designation stage in the treatability assessment.

The impact of Gladue factors on an offender’s moral blameworthiness must also be considered in the context of the offences committed, which also takes place at the designation stage.

Given the focus on the future risk of an offender and the overarching public safety concern, Gladue factors, even significant ones, may not be sufficient on their own to avoid a dangerous offender designation or sentence: Boutilier at para 117 . [ 79 ] Defence counsel argues that the Offender’s Gladue factors significantly reduce his level of moral blameworthiness for the manslaughter of his uncle such that this conviction cannot be said to be similar enough to the predicate offence to be included in the pattern analysis. I disagree.

Unlike the predicate offence, there were no witnesses to this first manslaughter. In 2006 at the sentencing hearing, the Offender described that after he went to bed, his uncle came into the bedroom and told him to go to sleep while at the same time taking off his belt. The inference left was that the Offender believed that his uncle was preparing to sexually assault him. I accept that the Offender would have had a heightened fear of sexual assault given his own childhood sexual victimization. However, the level of violence against the uncle that ensued was disproportionate and protracted.

The knife and the 2 x 4 that were used could not have been wielded concurrently, and therefore had to have been used consecutively. This suggests a level of rage far exceeding what was necessary to subdue the uncle. 5) The 2010 Attempted Robbery [ 80 ] Of the five convictions that the Crown submits constitute a pattern of behaviour, I find that only the attempted robbery from 2010 is not captured by the pattern. I acknowledge that as a party to an offence the Offender is equally as responsible in law as the perpetrator who wielded the knife.

I also acknowledge that attempted serious violence can be sufficient to anchor a pattern of conduct under ss 753(1)(a)(

i) or (ii) where the Court concludes that there is a likelihood of endangerment of life or severe psychological harm as a result of the attempted violence: Neve , para 91 . However, the context of the 2010 attempted robbery is materially different from the predicate offence. This offence did not involve a family member or even a person known to the Offender. It was an attempted robbery of a neighbourhood pharmacy. The robbery was planned in advance and committed with another person. Neither of these characteristics exists in the predicate offence.

There was a reason for the attempted robbery: it was an attempt to get money to purchase alcohol. There was no explosion of anger that characterized the predicate offence. While there is information from the Offender that he was intoxicated during the attempted robbery offence, that intoxication did not yield to physical violence against the victim. The violence inflicted upon the victim was not unbridled, nor did it escalate in severity. Efforts by the clerk to decline to provide money were not met with an escalation of violence by the Offender.

The customer who entered the store was able to disengage from the Offender and no escalation of violence ensued. After the clerk repeatedly said that he was unable to open the register, the Offender and his partner left the premises. [ 81 ] I have no doubt that this offence had a lasting impact on the victim. However, the circumstances of this offence are distinguishable in too many aspects to have this offence categorized as similar enough to the predicate offence to constitute a pattern of conduct as required by ss 753(1)(a)(

i) or (ii). 6) Convictions that constitute a pattern of conduct [ 82 ] The remaining convictions that have characteristics similar to those displayed in the predicate offence are the 2003 sexual assault youth conviction, the 2006 manslaughter adult conviction, and the 2017 sexual assault adult conviction. [ 83 ] Each of these offences are characterized as serious personal injury offences and all four offences occurred against family members.

The Offender’s interaction with each victim was in a physical environment of safety and familiarity: his home (2003); his uncle’s home (2006); his mother’s home (2017); and the apartment of his brother’s friend (2021). Except in the circumstances of the 2003 sexual assault, the Offender’s interaction before the offences with the victims were lengthy and animated by comfortable socializing. [ 84 ] In each case, the Offender’s violent actions were neither transitory nor fleeting.

During the 2003 sexual assault, the Offender persisted even after the victim (his mother) woke up and spoke to him telling him to stop and physically pushed him away. During the 2017 sexual assault, the Offender persisted despite the verbal protestations of the victim (his stepsister) and her physical attempts to avoid his behaviour. In the predicate offence the Victim deployed several different strategies to diffuse the Offender’s escalating anger and violence. During each of the manslaughters, two weapons were used: a knife and a blunt force instrument.

During each of the manslaughters, the Offender’s level of violence was protracted and prolonged, and exceeded what was required to kill the victims. [ 85 ] During all four offences, the Offender was intoxicated by alcohol and the victims were also vulnerable due to their own alcohol consumption that day. Except in the circumstances of the 2003 sexual assault, the Offender had consumed alcohol with the victims before the offence was committed.

During the two manslaughters and the 2003 sexual assault, the Offender had also consumed cannabis before the offence. [ 86 ] These four convictions, which include the predicate offence, constitute repetitive behaviour by the Offender that demonstrates a failure to restrain his behaviour.

On three occasions subsequent to the first conviction in this pattern, the Offender repeated this pattern by failing to restrain his behaviour. [ 87 ] These four convictions, which include the predicate offence, also constitute persistent aggressive behaviour in that the behaviour has persisted from 2003 to 2019 (the date of the predicate offence). This violent conduct began when the Offender was almost 17 years old, and continued until the predicate offence, which occurred when he was almost 33 years old.

B) Designation Stage pursuant to s 753(1)(

b) of the Criminal Code [ 88 ] The Crown argues that s 753(1)(

b) is also engaged as a route to designate the Offender as a Dangerous Offender. [ 89 ] Section 753(1) (

b) of the Criminal Code directs that: 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 (

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. [ 90 ] The first two prerequisites to engaging 753(1)(

b) have been established: (1) the predicate offence of manslaughter is a serious personal injury offence; and (2) the Offender’s conduct during the incidents that led to his two sexual assault convictions in 2003 and 2017 prove beyond a reasonable doubt that the Offender has shown a failure to control his sexual impulses. 1) Threat Assessment [ 91 ] The next step in the analysis is to consider the threat the Offender poses of violent and sexual recidivism. It is not enough to find a pattern of past conduct that is either repetitive or persistently aggressive.

The Crown must also prove beyond a reasonable doubt that the Offender poses a present threat to reoffend violently or sexually in the future. [ 92 ] Both sections 753(1)(a)(

i) and 753(1)(

b) explicitly articulate this requirement by requiring proof beyond a reasonable doubt of a likelihood of causing death or injury to other person through an offender’s failure to restrain his behaviour in the future. Section 753(1) (a)(ii) must be read as requiring proof beyond a reasonable doubt of a likelihood that this type of aggressive behaviour will continue in the future: Neve at para 115 .

In these sections, “likelihood” of future conduct has been held to mean more probable than not: Neve at para 91 . [ 93 ] At this stage of the analysis, the Court must evaluate the condition of an offender at the time of the hearing: Lyons at para 27 ; Currie at paras 26 and 31 ; R v Sipos , 2014 SCC 47 at paras 47 and 48 . In order to properly assess future risk, the Court must consider an offender’s past conduct, his present circumstances, and evidence from the risk assessment prepared by forensic psychiatrists and psychologists.

An offender’s past conduct can be considered as a predictor of future behaviour, but it cannot be the only consideration. The Court must also consider deep seeded or intractable characteristics that would suggest a risk of reoffending: Boutillier , p at para 42- 45. 2) Past and Present Conduct [ 94 ] The Offender’s past conduct supports the conclusion that he poses a risk of violent recidivism. The Offender’s pattern of behaviour began when he was almost 17 years old and continued until he was 32 years old.

During those years, the Offender participated in treatment for his substance abuse and to mitigate his violent behaviour. None of this treatment was sufficient to stop the Offender’s violence. Further, even thought the Offender was provided parole and probation supports while he was in the community, he was not sufficiently motivated to access resources through those supports. In 2009, the Offender absconded from his halfway house after starting a substance abuse treatment program.

Throughout 2018 while on probation, the Offender consistently lied to his probation officer claiming sobriety and thus, failed to access assistance for his substance abuse. [ 95 ] In relation to the Offender’s present circumstances, he has been in custody at the Edmonton Remand Centre (ERC) since January 2019, when he was arrested on the predicate offence. Since that time, he has completed several courses and programs.

These include an eight-module correspondence Bible study, high school credit courses in Life Skills, Language Arts, and Aboriginal Studies, a 25-hour course in anger management, and another 25-hour course in life skills. The Offender also completed a relapse prevention course and a prevention of family violence course. [ 96 ] Defence counsel submits that Dr Will and Dr Hook (experts tendered by the Crown and discussed below) ignored the Offender’s willing to address his risk factors through this course work. I disagree.

Dr Will and Dr Hook both concluded that years-long High Intensity programming for substance abuse and anger management, as well as Moderate Intensity sexual violence prevention are necessary to address his risk factors. While the completion of this course work at ERC is laudable, the courses he completed are inadequate to address his risk factors. The Offender has not completed any sex offender treatment while at ERC. The courses on anger management and life skills were only 25 hours each. The courses on relapse prevention and prevention of family violence were of indeterminate length and intensity.

This programming is grossly insufficient to address the Offender’s risk factors. [ 97 ] I acknowledge that the Offender’s custodial time at ERC has not been marked by institutional infractions that characterized much of his previous penitentiary time. I also acknowledge that the Offender presently expresses a desire to not consume alcohol.

However, the Offender has expressed that desire in the past, and his sobriety over the past 4 years has been enforced by the artificial custodial environment of ERC. 3) Forensic Risk Assessment [ 98 ] The Crown offered two expert witnesses who assessed the Offender’s risk of future violent recidivism:

(1) Dr Will, a forensic psychiatrist, and

(2) Dr Hook, a forensic psychologist. Both experts also considered an assessment of the Offender conducted for this hearing by Dr Chevalier, a neuropsychologist.

[99] Expert evidence cannot usurp the Court’s function as the trier of fact: R v Mohan, (SCC), [1994] 2 SCR 9 atp 24. Qualifying an expert to proffer an opinion does not abrogate the Court’s responsibility to carefully review that expert’s evidence,make findings of fact in relation to that evidence. [100] In Neve, the Court established the following framework for applying expert evidence in a Dangerous Offender hearing: see para189. (

i) The qualifications and practice of the expert [101] Both Dr Will and Dr Hook have extensive experience with risk assessment tools, evaluating the results of those tools, andforming opinions as to the risk of future harm by offenders. [102] Dr Will has expertise assessing risk and recidivism, and treating violent offenders and sex offenders. Since graduating with amedical degree in 2011, Dr Will has focused her postgraduate training, teaching, and work in forensic psychiatry.

Dr Will has extensiveexperience working within the federal penitentiary system and has completed several risk assessments in contemplation of dangerousoffender applications. [103] Dr Hook obtained her PhD in 2007. Since that time, she has worked extensively in forensic psychology. In the decade between1997 and 2007, she worked in various positions as a psychometrist where she administered assessment tool tests to offenders to aid indeveloping treatment plans while the offenders were in custody and for parole applications.

Dr Hook has also provided treatment tooffenders and prepared risk assessments in anticipation of dangerous offender applications. [104] Dr Chevalier specializes in neuropsychology and conducted a neuropsychological assessment with the Offender. Dr Chevalierworks with Forensic Assessment and Community Services (FACS) performing clinical evaluations of patients.

She has provided expertevidence on neurocognitive testing in other similar applications and for the Alberta Review Board. (ii) The opportunity the psychiatrist had to assess the offender, including the length of personal contact, place of contact,role with ongoing treatment, and involvement with the institution in which the person is a prisoner [105] Dr Will met with the Offender privately and in person at ERC on 3 separate days where she conducted interviews and testingfor two to three hours on each of those days.

Dr Hook met with the Offender privately and in person at ERC for 14 hours over 4 separatedays, and for several hours on each day. Dr Chevalier met with the Offender for six hours on a single day.

This meeting included a one-hour in-person interview with the remaining time spent conducting testing. [106] All three doctors testified that the Offender was cooperative with them throughout the process. (iii) The unique features of the doctor-patient relationship such as hostility or fear by the patient (or the doctor) arisingfrom the personalities, the circumstances of the contact, and the role of the psychiatrist [107] Given that the three experts were expressly retained to conduct assessments in anticipation of a dangerous offender application,this factor is not relevant.

The Offender was advised of the doctors’ roles before consenting to participate in the assessments and none ofthe doctors had any prior interaction with the Offender before conducting the assessments. (iv) Specifically and precisely, what documents the expert had available and reviewed, for example, form earlier courtproceedings, institutional records or other medical consultations or treatment [108] Both Dr Will and Dr Hook devoted hours to their document review.

This review encompassed virtually every aspect of theOffender’s life since the age of two to the present day and spanned the Offender’s time in Saskatchewan and Alberta. The variety andvolume of documents yield a comprehensive history of the Offender’s family life, education, child welfare involvement, electronicmedical records, criminal history including court transcripts, sentencing reports, judicial interim release packages, and police material.Also included were documents pertaining to all the Offender’s time as a youth and adult in custody and under community supervision byprobation and parole authorities.

These included all penitentiary case notes from 2006 to 2013, prior custodial programming in which theOffender had enrolled, and psychological assessments completed in 2006, 2011, and 2012. The institutional documents also includedprevious risk assessments related to the Offender completed in 2000, 2003, 2006, 2011, 2013, and 2017. [109] Dr Chevalier conducted a neuropsychological assessment for the purpose of clarifying the nature of any cognitive deficit andassess whether his childhood brain injury affected his impulsivity and the impact that his brain injury may have on his treatmentprospects.

Given this discrete purpose, she reviewed less material than the other doctors. Specifically, she reviewed the Offender’s entireelectronic medical records which included Previous CT scans (in 2000 and 2019 completed after his arrest on the predicate offence). She also reviewed the following documents: neuropsychological report dated February 21, 2000, a comprehensive psychosocialassessment dated January 1, 2002, a presentence report dated May 12, 2003, a psychological intake assessment dated June 23, 2006, apsychological and parenting assessment dated November 18, 2016 and a Gladue Report dated August 17, 2017.

These documentsspanned the Offender’s life between the ages of 13 and 31, and included assessments completed while the Offender was in custody andout of custody. (

v) The nature and scope of the consultations [110] The Offender did not provide any collateral contacts with whom Dr Will or Dr Hook could consult. Dr Hook did independentlycontact a Registered Nurse ho worked with FACS and dealt with the Offender in 2018 when he started the QUEST program for sexoffenders. I am not concerned about the lack of collateral contacts because of the extensive document review that encompassed everyaspect of the Offender’s personal history.

[ 111 ] Dr Will and Dr Hook consulted with each other but they each came to their conclusions independently of one another. This consultation does not detract from the weight given to their opinions because the doctors practice in different fields: Dr Will practices in psychiatry and Dr Hook practices in psychology. (vi) Specifically and precisely, what the expert relied on in coming to an opinion [ 112 ] In addition to the extensive document review, the doctors relied upon their lengthy multi-day interviews with the Offender.

These interviews included the Offender providing his version of events for his past behaviour and criminal conduct to the extent that he had a memory of this conduct. [ 113 ] The doctors employed a variety of risk assessment tools to aid them in forming their opinion of the Offender’s risk of violent recidivism.

After interviewing the Offender and conducting their document review, each doctor individually decided which risk assessment tools were best suited for the Offender and for the purpose of their opinion. [ 114 ] The risk assessment tools employed by Dr Will and Dr Hook variously used static and or dynamic risk factors. There was an element of clinical judgment in the assessment of dynamic factors.

Where the doctors utilized the same instruments, the variation in the final score was not statistically relevant, nor did any variation in their assessment result in the Offender being categorized differently as between the two doctors. The risk assessment tools are designed to be predictive of future risk. However, there is no tool that can assess or predict the severity of any future reoffending. [ 115 ] Both doctors administered the Static-99R, which assesses risk for sexual recidivism.

Both doctors obtained results that placed the Offender at the top end of average risk for sexual reoffending. [ 116 ] Both doctors also administered the VRAG-R, which is an actuarial tool designed to assess the risk of violent reoffending, including violent sexual reoffending. Both doctors found that the results showed the Offender to be at the highest risk to reoffend violently, in the 99 th percentile as compared to other federal inmates. [ 117 ] Both doctors also relied on results from the PCL-R check sheet.

The PCL-R check sheet is not a risk assessment tool, instead it is used to assess the personality construct of psychopathy. When psychopathy is present in an offender to a significant extent, it is associated with a greater risk of violent recidivism. The PCL-R is comprised of two factors: interpersonal/affective features of psychopathy and socially deviant aspects of psychopathy. [ 118 ] Dr Will concluded that the Offender had psychopathic personality features that paced him in the 52 nd percentile compared to other federal inmates.

However, the Offender’s score on the socially deviant aspects of psychopathy placed him in the 84 th percentile compared to other federal inmates. Dr Hook found that the PCL-R results placed the Offender in the 44 th percentile compared to other federal inmates. However, the Offender’s results on the socially deviant aspects of psychopathy placed him in the 91 st percentile compared to other federal inmates.

While not a risk assessment tool, the enhanced results of socially deviant aspects of psychopathy support the finding that the Offender’s risk factors are deep seeded and intractable. [ 119 ] In addition to the above tools, Dr Will also administered the VRS and the VRS-SO. [ 120 ] The VRS assesses an offender’s risk of violent reoffending within three years using static and dynamic factors. Dr Will concluded that this risk assessment tool placed the Offender in the 39 th percentile to reoffend violently within 3 years, compared to the population of federal inmates with at least one previous violent offence.

The predictive value of this risk assessment is limited by the artificial environment that has constrained the Offender’s choices and enforced his sobriety for the past 4 years while in ERC. [ 121 ] The VRS-SO assesses risk for sexual recidivism. This result placed the Offender at an above average risk for sexual reoffending. [ 122 ] Dr Hook also administered the LS/CMI, the HCR-20-V3, and the Stable 2007. [ 123 ] The LS/CMI assesses general recidivism, not violent or sexual recidivism.

While the Offender’s score resulted in a high risk of general recidivism, this result offers little to the analysis of whether the Offender poses a threat to others. [ 124 ] The HCR-20-V3 assesses the risk for interpersonal violence. On this measure, the Offender scored as a very high risk. [ 125 ] The Stable 2007 assesses risk for sexual reoffending. Dr Hook cautioned that the predictive value of this tool may not be warranted for Indigenous offenders.

Further, she cautioned that the fact that the Offender spent 3.5 years incarcerated at ERC before the test was administered could call into the question the accuracy of the results.

On the basis of Dr Hook’s caution, I will not place any weight on the result of the Stable 2007. (vii) The strengths and weaknesses of the information and material upon which the expert relied [ 126 ] The document review conducted by the doctors spanned every aspect of the Offender’s life and provided a comprehensive history of the Offender’s actions, previous treatment, and behaviours. [ 127 ] Defence counsel submits that the expert evidence should be viewed with scepticism, arguing that the tools used to assess the Offender’s level of risk are imbued with cultural biases against Indigenous offenders. [ 128 ] Defence counsel criticizes the use of static factors in the assessment tools because an offender cannot avoid them and they disproportionately apply to an Indigenous offender’s Gladue factors.

He argues that the use of static factors does not incorporate an offender’s progress through treatment or the ability to change behaviours.

[ 129 ] Risk assessment tools are designed to evaluate an offender’s likelihood of reoffending. To that end, tools have been developed to incorporate static and dynamic factors that impact on potential future violent conduct. The comparator group for evaluating this risk is other federal inmates and, if applicable, federal sex offenders, not the population at large. This is a group for which there is empirical data regarding reoffending.

The overrepresentation of Indigenous people in the federal correctional system actually works in favour of race neutrality in the risk assessment tools, since the comparator group encompasses a large number of Indigenous inmates. [ 130 ] It is correct that the use of static factors ignores the current presentation of any offender, their present motivation to change, and their progress through any treatment. However, these are variables that are not linear, are easily interrupted, and are subject to change.

There is no way for a risk assessment tool to identify a level of motivation and account for it in the future. Likewise, the progression through treatment is not a linear process. There is presently no ability to identify where any one person is on their path to sobriety and pro-social behaviour. [ 131 ] Both doctors acknowledged the concern that risk assessment tools need to be culturally neutral in order to provide defensibly valid results. [ 132 ] Dr Will testified that she chose assessment tools that do not falsely inflate risk estimates for Indigenous offenders.

Dr Will testified that there has been considerable academic work recently completed on the impact of race and risk assessment. She intentionally chose risk assessment tools and the PCL-R check sheet to use with the Offender because they have been found to be race neutral. Dr Will was aware of literature that indicated the Static-99R and the VRS and VRS-SO are all valid risk assessment tools for Indigenous Offenders. In relation to the VRS-SO, Dr Will was aware of studies that specifically found this tool to be equally valid with Indigenous offenders as compared to non-Indigenous offenders.

She was further aware of studies that show the PCL-R check sheet does not unfairly over-estimate or under-estimate risk for Indigenous offenders. [ 133 ] Dr Will acknowledged that Indigenous offenders can score higher on static factors in risk assessment tools. Static factors are those that do not change and, for Indigenous offenders are often a result of Gladue factors of disadvantage anchored in colonialism.

Dr Will testified that in recent years there has been a concern about the possibility of bias and research has been designed and conducted to test for any bias. [ 134 ] Dr Hook denied that the risk assessment instruments she employed had a bias against Indigenous people such that they over- accounted for Gladue factors in assessing risk of future violent and sexual recidivism. Dr Hook provided the Court with two peer-review studies that related variously to the Static-99R and the PCL-R check sheet, and three studies that reviewed the impact of race and Indigeneity on risk assessment tools, including the VRAG.

Dr Hook admitted that there were still questions about the validity of the Stable 2007 instrument when it is applied to Indigenous offenders and urged caution in its result. [ 135 ] With respect to Dr Will’s opinion, Defence counsel submits that she betrayed a bias against Indigenous offenders. When Dr Will was asked whether she was aware of systemic racism toward Indigenous people in Canada, she replied, “yes.” When asked if she was aware of systemic racism toward Indigenous people in jails, she replied, “the media report it. There are documented incidents.

As a person who works in jails, I can’t say that I have ever seen it.” [ 136 ] I disagree that this exchange lends itself to the inference that Dr Will has a bias against Indigenous offenders. Dr Will acknowledged that bias against Indigenous people exists in the field of psychiatry, that some testing instruments could falsely inflate the risk of Indigenous offenders, and that research has been undertaken to check for any such bias. Dr Will was aware of the over representation of Indigenous people in federal jails, especial in the Prairie Provinces.

She agreed that there is a societal bias against Indigenous people. The exchange about whether she had ever “seen” this bias in prison has to be considered in the light of these previous statements as well as the fact that she is scientist, whose work with Offenders is based on assessment tools that have been empirically measured to result in a predictive value. The suggestion that Dr. Will displayed a bias against Indigenous offenders is without merit. [ 137 ] Defence counsel argues that Dr Hook displayed a bias by finding that the Offender’s “treatment” while at ERC was not relevant. I disagree.

The Offender did not receive any treatment while in ERC. Rather, he participated in various programs and took courses for which he presented Certificates of Completion. However, these programs were skills based, not treatment based.

Further, they were not focused on the Offender’s specific needs and do not come close to the High Intensity programming and treatment that would address his risk factors. [ 138 ] Defence counsel submits that Dr Will was overly concerned with the Offender’s security level at ERC, and that she appeared to have “no interest in what [the Offender] has done in the 45 months that he has been [at ERC].” This is incorrect. Dr Will considered the Offender’s compliant behaviour while in ERC as an indication of his increased maturity and a sign of his present motivation to address the risk factors of his offending.

However, Dr Will found that ERC does not offer the programming for substance abuse, violence prevention, and sexual offending that she concluded the Offender needs. [ 139 ] Defence counsel submits that Dr Will assigned the Offender a negative finding for not completing a specific program while previously incarcerated. The Offender was sent to segregation, and therefore could not complete the program. The Offender was sent to segregation because of a behavioural concern.

The issue for Dr Will was the behavioural concern, not the fact that the Offender’s programming was interrupted because he was sent to segregation. Dr Will testified that if the Offender could not complete his program because he was sent to segregation for administrative reasons, she would not assign a negative finding to that programming interruption. I disagree that this shows evidence that Dr Will has a bias.

I agree with Dr Will that an offender being unable to complete programming due to a behavioural concern is more relevant to assessing risk of future violent reoffending than if the same inability came about as the result of an administrative concern. 4) Conclusions on Expert Evidence of Offender’s Risk [ 140 ] Dr Will concludes that the Offender is an above average to high risk to reoffend both sexually and violently. Dr Hook concludes that the Offender is at an average risk to reoffend sexually and a very high risk to reoffend violently.

I accept these opinions of both Dr Will and Dr Hook on the Offender’s risk of to reoffend violently and sexually. Both experts completed their own assessments of the

Offender and interviewed him separately. They each chose risk assessment tools that accounted for his Indigenous background. They decided independently which risk assessment tools best suited their purposes and while they employed some of the same instruments, not all the instruments were the same.

Regardless, they both obtained equivalent results and while the instrument scores which engaged clinical judgment were not identical, and variance in scores was statistically insignificant to the ultimate assessment of risk. 5) Is the Offender’s Behaviour Intractable? [ 141 ] Pursuant to 753(1)(a)(i), 753(1)(a)(ii), and 753(1)(b), the Court must be satisfied beyond a reasonable doubt that an offender’s pattern of conduct is substantially or pathologically intractable: Lyons at para 43 .

Intractable conduct is behaviour that the offender is unable to surmount: Boutilier at para 27 . [ 142 ] In the dangerous offender context, a range of psychiatric and behavioural characteristics may be indicative of therapeutic or rehabilitative intractability.

Clinical evaluations identifying the presence of enduring mental illnesses, deeply ingrained personality traits or personality disorders, sexual deviations, or substance abuse disorders all become relevant in understanding the meaning of repetitive behaviours, persistent aggressive behaviours, and their relationship to the predicate offence: Boutilier at para 44 . [ 143 ] Where treatment prospects are so compelling that the court cannot conclude beyond a reasonable doubt that an offender presents a high likelihood of harmful recidivism or that their violent pattern is intractable, the threshold for a dangerous offender designation will not be met: Boutilier at para 45 . i) Section 753(1)(a)(

i) and 753(1)(a)(ii) of the Criminal Code [ 144 ] Pursuant to ss 753(1)(a)(

i) and 753(1)(a)(ii), I find that the Crown has proven beyond a reasonable doubt that the Offender’s pattern of violent conduct is intractable due to a combination of the following: (1) the Offender’s motivation to attend treatment for his offending has waned in the past when it has been offered; (2) while on parole and probation, the Offender has returned to alcohol consumption despite an articulated desire to abstain; (3) the Offender’s risk to reoffend violently is informed by multiple diagnoses: severe substance abuse disorder, cannabis use disorder, antisocial personality disorder; (4) the presence of high indicators of socially deviant aspects of psychopathy; and (5) both doctors conclude that the Offender needs several years of High Intensity treatment to approach reducing his risk for violence.

Dr Hook concludes that a minimum of two to three years of custodial programming will be necessary to reduce his risk for violent reoffence before moving into the community, while Dr Will concludes that a minimum of five years of custodial programming before release into the community will be necessary. [ 145 ] Dr Will and Dr Hook both recommend the level, amount, and length of treatment that the Offender would have to complete before he had any realistic prospect of abstinence. Both doctors opined that the Offender is likely to relapse.

Because the Offender is in a controlled environment at ERC, there is no way to know what stage the Offender is at in overcoming his alcohol use disorder. There is also no ability to predict how long it will take any person to overcome alcohol use disorder. However, we know that the Offender’s two and a half years of sobriety between 2013 and 2015 was not a long enough period to prevent him from relapsing and violently reoffending.

We also know that the Offender received substance abuse treatment after he sexually assaulted his mother, after he killed his uncle, and after he sexually assaulted his stepsister and that these past treatment efforts were also not sufficient or successful. [ 146 ] While in federal custody, the Offender took some Moderate Intensity substance abuse and violence prevention treatment programming. Other in-custody treatment opportunities were frustrated by his suspension from programs due to behavioural infractions.

This was a concern for Dr Will as it demonstrated an inability to put into practice what the Offender was learning in treatment. [ 147 ] While the Offender does not remember learning anything from the programs taken earlier in his adulthood incarcerations, he does have a clear understanding that his use of substances is a direct link to his criminal behaviour, and that the repressed anger he holds is unleashed when under the influence of alcohol.

During the treatment programs, the Offender expressed to program facilitators that he understood how his alcohol use resulted in him violently acting out and harming others and he repeatedly expressed a desire to stop drinking. [ 148 ] The Offender was on probation for most of 2018 and met with his probation officer in person once per week. Sobriety was a goal for him even though abstinence was not a condition of his probation. Abstinence was a regular topic of discussion between the Offender and his probation officer. The Offender knew that alcohol use led to him violently harming others.

The Offender also knew that his probation officer could help him access community-based treatment for his alcohol use. Yet he regularly told his probation officer that he was abstaining from alcohol while at the same time, he drinking large quantities of alcohol almost daily.

The Offender’s insight into his offending pattern, refusal to enlist the probation officer’s assistance in seeking substance abuse treatment and the active lying about his sobriety betray a deep-rooted alcohol use disorder, which is the primary risk factor that animates his violent and sexual offending. [ 149 ] Dr Will concludes that the Offender’s long history of involvement in the criminal justice system is likely the result of environmental and psychological factors combined with decisions made by the Offender and his alcohol abuse.

In adulthood, the primary motivators of the Offender’s criminal conduct appear to be alcohol and cannabis abuse coupled with poor emotional regulation. Dr Chevalier concludes that there are a number of genetic, environmental and psychosocial factors that have contributed to the Offender’s impulsivity and discontrained behaviour.

His violent behaviour is rooted in many different areas: his alcohol and cannabis abuse, his antisocial personality disorder, the presence of a high level of socially deviant aspects of psychopathy, his chaotic early home environment, exposure to significant domestic violence against his mother at an early age, his childhood sexual victimization, his heavy substance abuse beginning early in his developmental period and extending throughout adulthood. There is no one reason that can be identified as the singular root cause of the Offender’s violent conduct. Instead, his conduct is a result of multiple factors.

This expansive need for treatment across multiple risk factors contributes to the finding that his pattern of violent conduct is intractable. [ 150 ] I find that the Crown has proven beyond a reasonable doubt, that there is a likelihood that the Offender will reoffend violently in the future. I base this finding on the following: (1) the Offender’s past repeated conduct of violence, (2) his present circumstances,

including a desire to abstain from alcohol and not having access to High Intensity programming to address the risk of violent recidivism, (3) the fact that his violent conduct is informed by multiple risk factors, and (4) the expert opinions of Dr Will and Dr Hook. [ 151 ] Accordingly, pursuant to s 753(1)(a)(

i) the Crown has proven beyond a reasonable doubt that there is a likelihood that the Offender will cause death, injury, or inflict severe psychological damage to others through a failure in the future to restrain his behaviour. I find that pursuant to s 753(1)(a)(ii), the Crown has also proven beyond a reasonable doubt that the Offender poses a threat to others due to a substantial degree of indifference on his part respecting the reasonably foreseeable consequences to others from his behaviour. ii) Section 753(1)(

b) of the Criminal Code [ 152 ] Pursuant to s 753(1)(b), I find that the Crown has proven beyond a reasonable doubt that the Offender’s conduct in failing to control his sexual impulses is also intractable. I make this finding based on the opinions of Dr Will and Dr Hook that the Offender poses an average risk to reoffend sexually combined with his alcohol use disorder and lack of insight into his sexual conduct. [ 153 ] Dr Will opined that treatment for sexual offending is a high need for the Offender to reduce his risk of sexual reoffending.

The Offender has never completed any treatment for sexual offending as an adult. [ 154 ] The Offender’s lack of insight into his sexual offending is concerning. When the Offender spoke about his sexual partners with Dr Will, he said that he did not believe that he ever coerced, bullied, or intimidated anyone into engaging in sexual intercourse. Putting aside the sexual assaults against the his mother and step sister, this subjective assessment by the Offender ignores the fact that during his 2003 incarceration as a youth, he told staff that he had sexually assaulted three other kids in the past.

The Offender also told Dr Will that he has never masturbated in a public place, yet he was punished twice while in a federal penitentiary (in 2009 and 2010) for masturbating in front of a female corrections officer. [ 155 ] The Offender’s pattern of conduct in sexual offending is informed by his alcohol and cannabis substance abuse disorders, antisocial personality disorder, and very high indicators of socially deviant aspects of psychopathy.

His present lack of insight into his sexual offending betrays an substantial intractability, that, when combined with the multiple factors that inform his sexual offending, lead to the conclusion that his sexual offending is substantially intractable.

C) The Appropriate Sentence 1) The Statutory Framework: Sections 753(4) and 753(4.1) of the Criminal Code [ 156 ] Once the designation stage is complete, the next step is to consider the appropriate sentence for the predicate offence of manslaughter. Sections 753(4) and 753(4.1) govern this assessment: 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. [ 157 ] Indeterminate sentences and long-term supervision orders are different from typical sentences, in that while the fundamental purposes and principles of sentencing found in s 718 to s 718.2 of the Criminal Code must still be applied, the paramount concern is to protect the public. [ 158 ] Section 753(4.1) does not create a presumption of an indeterminate sentence.

Rather, an indeterminate sentence should only be imposed if it is the least restrictive means to reduce the threat posed by the offender to an acceptable level: Boutilier at para 71 ; R v Paxton , 2018 ABCA 386 a

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