Her Majesty the Queen - v. -, 2012 SKPC 52

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 052 Date: March 30, 2012 Information: 24412696 Location: Meadow Lake _____________________________________________________________________________ Between: Her Majesty the Queen - and - Brian Ben Appearing: Jennifer Robertson For the Crown Rosanne Newman For the Accused SENTENCING DECISION L. DYCK , J I. INTRODUCTION [ 1 ] On January 26, 2011, Brian Ben was found guilty on a charge of assaulting a peace officer with a weapon, contrary to s. 270.01(1) of the Criminal Code and on a charge of resist peace officer, contrary to s. 129 (

a) of the Criminal Code. [ 2 ] Prior to sentencing, the Crown applied for an assessment order, pursuant to s. 752.1 of the Criminal Code , alleging that the

[2] Prior to sentencing, the Crown applied for an assessment order, pursuant to s. 752.1 of the Criminal Code, alleging that theoffence of assault peace officer with a weapon was a serious personal injury offence and there were reasonable and probable grounds tobelieve that Mr. Ben might be found to be a dangerous offender. On May 17, 2011, I granted the Crown’s application (R. v. Brian Ben,2011 SKPC 80 , 2011 SKPC 080, hereinafter referred to as “Ben”), and ordered an assessment of Mr. Ben to be completed byDr. S. Lohrasbe. [3] Dr. Lohrasbe’s report was completed on July 14, 2011.

On August 2, 2011, the Acting Deputy Attorney General for theProvince of Saskatchewan consented to the proceeding being instituted to have Mr. Ben found to be dangerous offender pursuant to s.753 of the Criminal Code. The Crown’s Notice of Application to have Mr. Ben declared a dangerous offender and sentenced to anindeterminate period of custody is dated August 25, 2011. By consent of the parties, the hearing took place in Prince Albert fromJanuary 9-13, 2012. [4] The issue in this decision is whether Mr.

Ben should be found a dangerous offender, and if so, what penalty should beimposed upon him. [5] The Crown takes the position that Mr. Ben should be designated as a dangerous offender pursuant to s. 753 of the CriminalCode and sentenced to an indeterminate period of custody pursuant to s. 753(4)(

a) of the Criminal Code. In the alternative, the Crownsuggests Mr. Ben be found a dangerous offender and sentenced to a minimum term of two years in custody plus long-term supervision,pursuant to s. 753(4)(

b) of the Criminal Code. [6] Defence counsel takes the position that Mr. Ben should not be found to be a dangerous offender and should be sentenced to“time served”, from January 26, 2011, to March 30, 2012, and probation with very restrictive terms. If further time in custody isrequired, counsel for Mr. Ben suggests it should be no longer than a further year. II. EVIDENCE

a) Criminal Record of Mr. Ben [7] Mr. Ben’s criminal history is set out in his criminal record, which is attached as “Schedule A”. Mr. Ben has a total of 58previous convictions involving a range of criminal activity during a time period from 1976 to 2011. These convictions can besummarised as follows: 12 involving violence, including 3 assault peace officer charges 3 for uttering threats 7 driving related offences 22 property related offences 4 unlawfully at large or escape lawful custody 6 failing to abide court orders 1 each of cause a disturbance, obstruct peace officer, possession of firearm or ammunition, and two fail to attend court [8] A

summary of Mr. Ben’s convictions for violence, including the three counts of uttering threats, is as follows: Conviction Date Offence

(1) February 16, 1977 Assault Causing Bodily Harm, s. 245(2) CC No facts available

(2) October 24, 1977 Assault Causing Bodily Harm, s. 245(2) CC No facts available

(3) May 22, 1978 Indecent Assault on a Female, s. 149(1) CC No facts available (4-5) October 19, 1979 Robbery with Violence, s. 303 CC & Assault Peace Officer, s. 246(2) CC Mr. Ben suggests he was drinking quite heavily with another person. Both individuals were in a truck, with the owner of the truck and a few other people in the back. Mr. Ben wanted to drive the vehicle and the other individual refused to let him drive. A fight ensued and Mr. Ben hit him over the head with a bottle and stabbed him in the cheek with a screwdriver. On another occasion, an RCMP officer wanted to talk to Mr.

Ben at another location. Mr. Ben was reluctant to go and hit the officer a couple of times (Correctional Services Canada (“CSC”) Cumulative

Summary dated October 24, 1979, Exhibit P2, Tab 2).

(6) July 14, 1982 Assault Peace Officer, s. 246(2)(

a) CC The RCMP checked a vehicle on the Piapot Reserve on the evening of June 28, 1982. Liquor was found in the vehicle. Mr. Ben, who was on day parole at the time, and another individual who was on mandatory supervision, assaulted the peace officer (CSC Special Report dated June 29, 1982, Exhibit P2, Tab 4).

(7) August 26, 1985 Assault Peace Officer The RCMP were attempting to apprehend Mr. Ben. Mr. Ben had been involved in previous altercations and had been drinking. Mr. Ben resisted the police and struck one of the officers on two or three occasions. Mr. Ben indicated that his recollection of this incident is poor due to his level of intoxication at the time (CSC Special Report dated September 3, 1985, Exhibit P2, Tab 7).

(8) November 6, 1985 Assault, s. 245 CC No facts available

(9) June 3, 1987 Assault, s. 245 CC The victim, Marlene Cook, was Mr. Ben’s common-law spouse. On March 25, 1987, she was operating a motor vehicle, which was stopped by Mr. Ben, who then assaulted her. Mr. Ben had been drinking at the time of the offence (CSC Special Report dated April 1, 1997, and Progress

Summary Report dated June 10, 1987, Exhibit P2, Tab 9).

(10) October 15, 1991 Assault Causing Bodily Harm, s. 267(1)(

b) CC The victim was Vincent Bearboy and the incident took place on Loon Lake First Nation. Mr. Ben indicated to the preparer of the Pre- Sentence Report that his younger brother had been having difficulties on the Loon Lake Reserve with some different families, noting there had always been longstanding feuds between various families. Mr. Ben advised that “his brother had recently been beaten up by the same people he later beat up”. It was noted that “Brian’s major problem appears to be alcohol” suggesting that alcohol was involved in the offence (Pre-Sentence Report dated October 10, 1991, Exhibit P1, Tab 21).

(11) June 25, 1992 Manslaughter, s. 236 CC On March 21, 1992, Mr. Ben was on Loon Lake First Nation visiting his wife, Lorraine Whitecap, the victim. An argument took place between Mr. Ben and his wife. Mr. Ben became angry at her and started hitting her. Ms. Whitecap fled from the residence. Mr. Ben pursued her and began striking her with a 50-inch piece of two-by-four. It appeared that the two-by-four was lying around and Mr. Ben

picked it up as he followed his wife. Ms. Whitecap got away and ran for assistance to a nearby house. Mr. Ben caught up to her again and dragged her off the step of the house. He continued to hit her with the two-by-four, kicking her as well. Ms. Whitecap was dragged off into the bush, then later taken by Mr. Ben to his mother’s residence. The next day, when Mr. Ben realized that Ms. Whitecap had passed away, he took his wife’s body to a wooded area near the residence, and buried her in a shallow grave. Mr.

Ben had consumed a considerable quantity of alcohol on the evening in question and was unable to recall most of the evening because of a blackout (Transcript of Sentencing Submissions, June 18, 1992, Exhibit P1, Tab 23). (12-13) January 14, 2004 Uttering Threats, s. 264.1(1)(

a) CC (2 charges) On December 23, 2003, the RCMP were involved in a chase with a suspected impaired driver. They eventually stopped the vehicle and arrested the driver. Mr. Ben was a passenger in the vehicle and was noted to be grossly intoxicated. He was on a conditional sentence order not to drink and not to be at that location. Mr. Ben was arrested for the alleged breaches of his conditional sentence order. Mr. Ben became combative and was wrestled to the ground where he was handcuffed.

On being put into the back of the police vehicle, he began punching the glass partition or silent patrolman, and said he was going to get a gun and shoot both the police officers. Mr. Ben continued to be difficult in his interactions with the police after that point in time (Transcript of Sentencing, January 14, 2004, Exhibit P1, Tab 39).

(14) June 23, 2004 Uttering Threats, s. 264.1(1)(

a) CC On May 29, 2004, Mr. Ben was observed attempting to steal a 1992 Ford Taurus by the owner, who then called the police. The accused was able to get the vehicle started, backed it up, then the vehicle stalled. The police apprehended the accused and arrested him for vehicle theft. The accused stated to the arresting officer that he had a gun with a bullet in it for the officer’s head. The accused appeared intoxicated at the time (Transcript of Sentencing, June 23, 2004, Exhibit P1, Tab 40).

(15) May 3, 2005 Assault Causing Bodily Harm, s. 267(

b) CC The complainant in this instance was Joanne Kiseyinewakup, the sister of Mr. Ben. On the morning of March 19, 2005, Mr. Ben went to his sister’s residence and as a result of his attendance there, Ms. Kiseyinewakup called the police regarding Mr. Ben. Later that day, the complainant was having a beer at a shop with a number of other individuals, including Mr. Ben. Mr. Ben indicated he wanted to speak to Ms. Kiseyinewakup outside. They went outside and Mr. Ben asked his sister why she had called the police about him. A verbal disagreement took place, during which time Mr. Ben struck Ms. Kiseyinewakup.

Because it happened so quickly, she was unclear whether she was kicked or punched. She believes she was knocked out, but she was unsure for how long. Ms. Kiseyinewakup crawled into the shop and told the owner to call the police as Mr. Ben had just hit her. The complainant’s face was quite swollen as a result of the assault. Mr. Ben had been drinking at the time. After he assaulted Ms. Kiseyinewakup, Mr. Ben left the scene. Ms. Kiseyinewakup expressed fear that Mr.

Ben might come back (Transcript of Sentencing, May 3, 2005, Exhibit P1, Tab 42). [ 9 ] The facts with respect to the present offence of assault peace officer with a weapon, the predicate offence in this application, were noted at paragraphs 6-10 of Ben as follows: [6] The facts as found after trial were that Cpl. Hodge had received information that Mr. Ben, who had an outstanding warrant, was at a particular residence. Cpl. Hodge went to that location, and saw Mr. Ben at the front of the house. Mr. Ben began to run away from the officer.

The officer gave chase. [7] The officer yelled at the accused to stop and Mr. Ben finally did, about 25 feet away from Cpl. Hodge. Mr. Ben turned toward the officer, with his hands raised and his fists clenched. Mr. Ben appeared to be in a combative or assaultive stance. [8] The officer drew his taser and yelled for Mr. Ben to get down on the ground. The accused began walking toward Cpl. Hodge and was closing the distance between them. When Mr. Ben was a distance of about eight feet away from the officer, the officer fired his taser. This had only a momentary effect on the accused. Mr.

Ben was trying to break free of the taser wires and Cpl. Hodge was attempting to load a cartridge in his taser. [9] Mr. Ben picked up a large tree branch, which was about seven feet long, and about three-quarters to two inches in diameter, and began swinging it at the officer. The branch was a stick that had been made by the accused to be used to hold up a clothesline when clothes were on it. As the branch went by, Cpl. Hodge dropped his taser, backed away, and drew his sidearm. Given the distance between Cpl. Hodge and Mr. Ben, and the length of the stick, the stick would have come very close to Cpl.

Hodge when the accused was swinging it. Cpl. Hodge feared for his life at that time.

[10] Cpl. Hodge told Mr. Ben to put down the weapon. The accused complied, then turned around and ran in the same direction he had originally been running. The officer pursued Mr. Ben briefly, then stopped and called for back-up. [11] In his victim impact statement, dated March 15, 2011, filed as P10 on this hearing, Cpl. Hodge stated “I have never feared for my own life more than on that day” and “There is not a day that has passed since then that I do not think about my encounter with Mr. Ben”. He also noted that “when my wife heard about this incident she was also effected [ sic ], as everyday I go to work she worries about whether I will come home safe”.

b) Background of Mr. Ben [ 10 ] Brian Ben was born on July 16, 1960, and is 51 years old. He was the third eldest of eight children and was raised on the Makwa Sahgaiehcan (Loon Lake) First Nation. Mr. Ben’s father lived on the same Reserve, but had no involvement with the family. Edna Bear, Mr. Ben’s mother, drank alcohol and as a result, most of the parental duties fell to the eldest children. [ 11 ] Mr. Ben was placed in foster care at age 13. He lived in a number of foster homes, first in Meadow Lake, then Regina, and finally Saskatoon. Mr. Ben’s only desire was to return home. By age 16, Mr.

Ben had moved from foster care to a young offender institution. [ 12 ] Mr. Ben’s first involvement with substance abuse began at age 14 when he became involved in glue sniffing and drinking. His preferred choice was drinking and his use escalated rapidly. [ 13 ] On October 19, 1979, at the age of 19, Mr. Ben was sentenced to the penitentiary for a period of two years on a charge of robbery. Alcohol was a factor in the offence. Mr. Ben’s original warrant expiry date was October 18, 1981. Mr. Ben was advised of the need for alcohol treatment while serving this sentence.

However he had not initiated counselling as of August 19, 1980 (Quarterly Progress Report dated August 19, 1980, Exhibit P2, Tab 2). He was released on Mandatory Supervision on February 19, 1981. [ 14 ] On about May 23, 1981, Mr. Ben was taken into custody on new charges of Dangerous Driving and two counts of Break and Enter. In each of the instances of Break and Enter, Mr. Ben admitted to consuming alcohol. One of the charges of Break and Enter related to entering a liquor store. Suspension warrants were issued with respect to Mr.

Ben’s release from the penitentiary as a result of the new charges. [ 15 ] On May 25, 1981, Mr. Ben pled guilty to the new charges he had incurred and was sentenced to consecutive custody. On June 22, 1981, his Mandatory Supervision was revoked. His new warrant expiry date was July 18, 1983. As noted in a Progress

Summary Report dated December 10, 1981, “Since this is BEN’s second return to Saskatchewan Penitentiary he has finally taken a serious look at his alcohol problem and is attending Alcoholics Anonymous Meetings” (Exhibit P2, Tab 3). [ 16 ] Mr. Ben was released to the Oskana Centre in Regina on Day Parole on March 3, 1982. On March 8, he started the alcohol rehabilitation program at the New Dawn Valley Treatment Centre in Fort Qu’Appelle. He successfully completed the program on April 2 and returned to the Oskana Centre. On April 14, 1982, Mr. Ben left the centre on a social pass and was due to return at 7:30 p.m.

He returned quite intoxicated and left the centre without authorization. [ 17 ] Day Parole Suspension warrants were issued. Mr. Ben returned to the centre the following day and asked for another chance. As there were no new charges, the warrants were withdrawn and Mr. Ben was given another opportunity to complete his day parole. [ 18 ] On April 27, 1982, Mr. Ben left the Oskana Centre for work. It was discovered that he was not at work and he did not return to the Oskana Centre that day. Suspension warrants were once again issued, and his Day Parole was revoked on June 25, 1982. Mr.

Ben remained at large until June 27, 1982, when he was arrested by RCMP and charged with new offences.

[ 19 ] On July 14, 1982, Mr. Ben plead guilty to a number of additional charges and received a sentence of consecutive incarceration. His new Warrant Expiry date became March 17, 1986, while his Mandatory Supervision release date was December 24, 1984. [ 20 ] A Quarterly Progress

Summary Report dated November 28, 1983 (Exhibit P2, Tab 5) noted the following information: Educational/Vocational Training Ben has remained actively involved in his educational studies for some time now. He recently was successful in completing his grade ten and is presently involved in grade eleven studies... Ben hopes to eventually get his grade twelve education and from there pursue a university degree in social work... Personal Development Subject continues to display a high degree of motivation in the areas of A.A. and he attends meetings each Tuesday, Wednesday, and Thursday.

He notes that the amount of time that he is spending in A.A. is somewhat jeopardizing his educational programs. He feels that he may have to cut back on A.A. meetings to some extent until his school grades improve. The CMT [Case Management Team] do not see any reason to discourage this possibility. ...

Summary Since his return to Sask Pen after violating his Day Parole, the CMT have noted a significant and greatly improved attitude towards improving his educational standing and in dealing with his alcohol problem. This is in direct contrast to his previous stay at the institution, during which he had absolutely no interest in institutional programs whatsoever. [ 21 ] Mr. Ben was released on Mandatory Supervision on January 9, 1985. Immediately upon his release, he attempted to lead a constructive lifestyle consisting of attending Alcoholics Anonymous, plus maintaining contact with his A.A. sponsor.

He also identified the need for personal rehabilitation which resulted in the attendance at a Life Skills course. [ 22 ] Suspension Warrants were issued on February 27, 1985, when it was discovered that Mr. Ben was present at a party where alcoholic beverages were being consumed and was in an advanced state of intoxication. He was taken back into custody. His suspension was cancelled effective March 18, 1985, as it was felt that the Temporary Suspension had the beneficial effect of alerting Mr. Ben that his alcohol problem needed to be addressed further. [ 23 ] Mr.

Ben was released on Mandatory Supervision from Saskatchewan Penitentiary on April 1, 1985, and spent the first 30 days at an in-patient treatment facility. After that time, he continued to remain active in the A.A. program. [ 24 ] Following receipt of information from the Loon Lake RCMP Detachment on August 25, 1985, a Warrant of Apprehension and Suspension of Mandatory Supervision were issued. It was suggested that Mr. Ben had violated his Special Condition to abstain from the use of all intoxicants and had allegedly become assaultive to various individuals including a Loon Lake RCMP officer.

On September 17, 1985, Mr. Ben’s Mandatory Supervision was revoked. [ 25 ] On August 26, 1985, Mr. Ben plead guilty to a charge of Assault Peace Officer and received consecutive incarceration. On November 6, 1985, Mr. Ben plead guilty to a charge of Common Assault and received consecutive incarceration. His new Warrant Expiry Date was March 16, 1987, while his Mandatory Supervision Release date became August 30, 1986. [ 26 ] A Progress

Summary Report dated February 17, 1986 (Exhibit P2, Tab 8), discusses plans being made for Mr. Ben’s scheduled release on August 30, 1986, on Mandatory Supervision. Mr. Ben indicated that he was not involved in the institutional A.A. program because he was too busy playing hockey. It was suggested that he should realign his priorities in terms of program involvement. Mr. Ben stated that he was not interested in a further period of alcohol treatment. Corrections Canada employees indicated

to him that they will continue to encourage him to reconsider so that he may benefit from the period of incarceration. [ 27 ] On May 8, 1986, Mr. Ben walked away from the Saskatchewan Farm Institution at Saskatchewan Penitentiary. He was apprehended on May 14 and was transferred back to Saskatchewan Penitentiary. Mr. Ben was sentenced on June 26, 1986, on a charge of unlawfully at large. This resulted in his Warrant Expiry date becoming September 21, 1987, and a new Mandatory Supervision release date of January 1, 1987. [ 28 ] Mr. Ben was released on Statutory Release on January 14, 1987.

Suspension warrants were issued on March 25, 1987, as a result of Mr. Ben consuming alcohol and committing further criminal offences. [ 29 ] In a Special Report dated April 1, 1987 (Exhibit P2, Tab 9), under “Progress”, it was noted that: Brian feels that he made significant gains while he was out on Mandatory this term. He states he was initially very committed to abstaining from alcohol but found that it was impossible to maintain this commitment. He states that he had a great change in attitude in that he was not always out looking for trouble or presenting the ex-con image.

Brian feels that he made sincere attempts to maintain a crime free lifestyle and complete his period of Mandatory. [ 30 ] On June 3, 1987, Mr. Ben appeared in Court and received a consecutive sentence on a charge of assault. On June 17, 1987, his Mandatory Supervision was revoked. His Warrant Expiry date became December 22, 1987, while his new Mandatory Supervision release date was September 5, 1987. [ 31 ] A July 21, 1987, Progress

Summary Report (Exhibit P2, Tab 9), noted that “Since returning to Sask. Pen, BEN has become actively involved in the A.A. program once again and has been attending meetings on a regular basis. He also is involved in counselling with the Native Elder and has been participating in Sweat Lodge ceremonies”. [ 32 ] Mr. Ben was released on Mandatory Supervision on September 4, 1987. Suspension warrants were issued after Mr. Ben failed to contact his Parole Officer on September 21 after his travel permit had expired. When apprehended, Mr.

Ben admitted that he had begun drinking and became fearful of being suspended so did not contact his Parole Officer. On December 8, 1987, Mr. Ben’s Mandatory Supervision was revoked. [ 33 ] Mr. Ben had originally been sentenced on October 10, 1979, to a two year sentence with a warrant expiry date of October 9, 1981. As a result of continued criminal involvement due to a continued dependancy on alcohol, Mr. Ben ultimately served a sentence in the penitentiary to a warrant expiry date of December 22, 1987. [ 34 ] Mr.

Ben continued to be involved in criminal activity in 1988, 1989 and 1990, as evidenced by his criminal record. [ 35 ] Mr. Ben met Lorraine Whitecap in approximately 1989, and they married in September, 1991. They had one child, Ivan, who was born in the summer of 1991. [ 36 ] On August 30, 1991, Mr. Ben voluntarily entered the Native Alcoholism Centre in Saskatoon. He successfully completed the program on October 1, 1991, and indicated that he really looked at his addiction for the first time. The director of the centre advised that Mr.

Ben gained new insight as a result of his stay there. [ 37 ] At page six of a pre-sentence report dated October 10, 1991, (Exhibit P1, Tab 21) with respect to a charge of Assault Causing Bodily Harm, the Probation Officer noted that:

Brian’s major problem appears to be alcohol. For the first time in his life, Brian sees his abuse as the first stumbling block he must overcome. He has taken a serious look at his use and abuse and appears committed to learning a “new way”. Brian’s motivation to quit drinking is heightened by his desire to return to school. As well, his wife and child play a major influence. [ 38 ] When he was sentenced on the charge of Assault Causing Bodily Harm on October 14, 1991, it would appear that due to the efforts Mr. Ben was making in the area of alcohol treatment and education, rather than custody, Mr.

Ben received a suspended sentence and probation. Unfortunately, Mr. Ben was unable to maintain his sobriety and on March 21, 1992, while intoxicated, he killed his wife. [ 39 ] Mr. Ben was sentenced on June 25, 1992, to a period of seven years for the Manslaughter charge related to the death of his wife. His Warrant Expiry Date was July 26, 1999, while his Statutory Release Date was March 24, 1997. A Correctional Plan dated September 4, 1997 (Exhibit P2, Tab 10), identifies emotional stability, alcohol usage, values and attitudes and academic/vocational skills/employment patterns as criminogenic factors.

It stated: 1. Emotional Stability: BEN lacks appropriate coping skills necessary to deal with events which transpired in his past. He also demonstrates difficulty in controlling his anger or displaying inappropriate behaviour when dealing with or interacting with authority figures. This subject displays characteristics such as depression and anxiety. In order for BEN to display appropriate behaviour within the community and prison he will need to be exposed to situations which will develop insight into his character.

This can best be accomplished by participating in psychological counselling, Native Elder counselling and the Anger Management program. 2. Academic/Vocational Skills/Employment Patterns: BEN has completed his Grade 10, and partial Grade 11. His level of education and lack of vocational skills have allowed the subject to develop a poor work ethic which has counted for him securing employment only 50% of his adult life. In order for this subject to remain gainfully employed upon release from prison, he should maintain steady employment in a vocational shop and/or complete his schooling to achieve a Grade 12. 3.

Values/Attitudes: BEN appears comfortable with his criminal values. His past has resolved [ sic ] around his inability to let go of his criminal associates and his presumptive logistic approach to life situations, i.e. restraint building. BEN will need to expose himself to opportunities that will encourage the development of socially appropriate values and attitudes. This can best be accomplished by participating in cognitive skills, interaction with the Native Elder and the Native Awareness Group. 4. Alcohol Abuse: At the time of the subject’s present offence he was highly intoxicated.

This presenting factor has also been the cornerstone of BEN’s criminal history. He admits that the abuse of alcoholic substance was prevalent in his early years through his parents and later he continued this pattern. BEN will require extensive programming in order to maintain his sobriety as part of his life style. This can be accomplished by his participation in Saskatchewan Penitentiary’s A.A. program. [ 40 ] Upon admission to Saskatchewan Penitentiary, Mr. Ben understandably had some mental health issues due to coping with the tragic death of his wife. Nonetheless, Mr.

Ben did become involved in programming and a Progress

Summary Report dated July 21, 1995 (Exhibit P2, Tab 13) noted that: He was screened for AA, but indicated he has no intention of attending this program. He has completed overnight retreats. He was in Addictions Ed in 92-10-14. He started the Cognitive Skills program on 93-05-07, and completed same on 93-06-25. He started Peer Counselling on 94-10-03 and is still involved. He started Anger Management on 94-10-06, and completed same on 94-11-15.

He has not upgraded his education to a GED 12...He has been referred for the Living Without Violence and Parenting Programs, but has not attended same at this time... [ 41 ] During this sentence at Saskatchewan Penitentiary, Mr. Ben began to embrace his Aboriginal roots and Native spirituality. He participated in two healing circles, the first from May 19, 1993, until June 7, 1993, and the second from April 20, 1994, until June 15, 1994.

As well, he went to a Spiritual Fast in Kootenay Plains, Alberta, from May 15-20, 1996, a Sundance Ceremony at Chitek Lake from June 13-16, 1996, and a Cultural Camp at Stanley Mission, from June 27 to July 1, 1996. [ 42 ] Mr. Ben was released on Statutory Release on March 21, 1997. On September 26, 1997, the Loon Lake RCMP arrested Mr. Ben as he was in a beverage room consuming alcohol, contrary to his release terms. Suspension Warrants were issued and Mr. Ben was

returned to Saskatchewan Penitentiary. [ 43 ] It was determined that Mr. Ben would benefit more from being in the community than to remain in the institution. Plans were put in place for Mr. Ben to attend the Loon Lake Alcohol/Drug Treatment Centre from November 24, 1997, to December 18, 1997. Mr. Ben was released from the penitentiary on October 20, 1997, and he attended a few sessions of the new Choices for Men program in Prince Albert prior to going to the treatment centre. [ 44 ] Mr. Ben successfully completed alcohol treatment at the Loon Lake Treatment Centre and was discharged on December 18, 1997.

On December 19, 1997, Mr. Ben was again using alcohol and was arrested for breaching his release conditions. On February 18, 1998, Mr. Ben’s Statutory Release was revoked. [ 45 ] In early 1998, Mr. Ben applied for a transfer from Saskatchewan Penitentiary to the Prince Albert Grand Council Healing Lodge. A Progress

Summary Report dated March 5, 1998 (Exhibit P2, Tab 16), stated that: The latest Psychological Assessment was completed by Dr. Couture on 95/08/04. In his report, Dr. Couture states that BEN is headed in the right direction, that of behavioral [ sic ] and attitudinal change. In addition, most likely his commitment to traditional teachings and learning modalities will become stronger and more focused. His reliance on Native spirituality is indisputably effective for him, and should continue to be his primary treatment program.

PROPOSED PLAN BEN is applying for a transfer to the Prince Albert Grand Council Healing Lodge where he will continue to deal with substance abuse and personal issues. [ 46 ] On March 16, 1998, Mr. Ben was approved as a minimum security offender and was subsequently transferred to the Healing Lodge. On May 23, 1998, staff from the Healing Lodge contacted Saskatchewan Penitentiary to ask that Mr. Ben be removed from the Healing Lodge. Mr.

Ben had violated Healing Lodge rules by leaving the previous night and socializing until his return that morning. [ 47 ] Staff from Saskatchewan Penitentiary went to the Healing Lodge to bring Mr. Ben back to the penitentiary. Mr. Ben had walked away from the Healing Lodge and was declared Unlawfully at Large. He was apprehended on August 1, 1998, after being out of custody for 69 days. He received a consecutive jail sentence for the charge of Unlawfully at Large. His Statutory Release date became July 22, 1999, and Warrant Expiry date was April 2, 2000. [ 48 ] Mr.

Ben was once again granted Statutory Release on July 21, 1999. On October 27, 1999, Mr. Ben and three other individuals were in a motor vehicle that was stopped by the RCMP. Mr. Ben was driving and admitted to consuming two alcoholic beverages. As Mr. Ben had breached his release conditions by consuming alcohol and being out of the area he had been given permission to be in, a Suspension Warrant was issued. [ 49 ] Mr. Ben spent the last portion of his sentence at Riverbend Institution.

The Final Performance Report from CSC dated November 18, 1999 (Exhibit P2, Tab 17), indicates that: BRIAN BEN completed the Substance Abuse BRIEF Relapse Prevention Program, which commenced on 99-11-02 and completed on 99-11-17. This program consists of ten (10) sessions of approximately two hours in duration for each session. The primary goal is to facilitate the offender to identify their personal warning signs and high-risk situations that could lead to relapse and to learn to manage these signs effectively.

This program utilizes an intense one on one relapse prevention therapy workbook with discussion following after each assignment and self-disclosure as teaching supports. The basic learning principles which people learn are cognitive, affective, and skills development. These three are used to guide the offender through the learning process. Relapse prevention therapy consists of three primary components, which are relapse education, and group therapy and support groups.

[ 50 ] Mr. Ben also attended AA meetings while at Riverbend. The report goes on to say: ANGER Brian identified his anger triggers are when he is under the influence of alcohol or drugs. He is unable to control his anger by an event, action or verbal abuse from another person. He will control his anger by using time-outs and will also be assertive by expressing his concerns and needs if he begins to feel frustrated or by using self-talk to state and communicate my [ sic ] goal of staying clean or leave the situation if this alternative is not adequate. [ 51 ] Mr.

Ben’s plan for release was to attend Alcoholics Anonymous meetings on a regular basis, counselling and speak to elders. He intended to find a sponsor and utilize this sponsor on a regular basis. [ 52 ] Mr. Ben continued to be involved in criminal activity after his release from the penitentiary, as is evidenced by his criminal record. Alcohol use continued to be a problem for Mr. Ben.

c) Evidence at Hearing (

i) Correctional Services Canada employees [ 53 ] The Crown called two witnesses who are employed with Correctional Services Canada (“CSC”) to provide the Court with assistance in understanding the CSC documents that had been tendered as Exhibits and to explain the programming and procedures that are in place at Saskatchewan Penitentiary. The first witness was James Gonzo, who is presently the Regional Segregation Oversight Manager for the Prairie Region. The second witness was Leanne Skene, who is the Manager of Programs at Saskatchewan Penitentiary. [ 54 ] Mr.

Gonzo began employment in 1998 with CSC and has worked in a number of different capacities, including as a program delivery officer and a parole officer. Mr. Gonzo discussed the role of the community parole officer. Individuals on day or full parole, or on long-term supervision orders, will be assigned a parole officer who will supervise them in the community. The amount of supervision each individual will be subject to is determined on a case by case basis.

However, the minimum supervision for those people on statutory release or on a long-term supervision order is eight face-to-face meetings per month. [ 55 ] With respect to statutory release terms, the community parole officer can make recommendations, as they are in a better position to know what is available. Release terms that are “special conditions” are those terms that are imposed by the Parole Board of Canada that will address issues that are most likely to contribute to risk, such as alcohol consumption.

Release terms that are “special instructions” are those that the parole officer can use, such as telling the parolee how often to meet and where to live. [ 56 ] Mr. Gonzo discussed what takes place if there is a breach of a special condition, such as alcohol consumption, in the a long- term supervision order. The long-term supervision order can be suspended and the individual can be reincarcerated for up to 90 days. This allows for an opportunity to determine if criminal charges for a breach of the long-term supervision order under s. 753.3 of the Criminal Code will be pursued. Mr.

Gonzo added that a period of 1.2 years in custody is the average sentence for a breach conviction of this nature. [ 57 ] Both Mr. Gonzo and Ms. Skene noted there had been many changes to the way documents are prepared and shared with inmates, and how programs are delivered in the Federal system, compared to when Mr. Ben was last in the system. [ 58 ] Mr. Gonzo admitted that errors do take place in the preparation of CSC documents. He confirmed that in some of the reports,

such as the January 27, 1984, Progress

Summary Report (Exhibit P2, Tab 6) it was suggested that Mr. Ben had been convicted of rape, which was not correct. A change was made in later documents to accurately reflect that mistake. [ 59 ] As well, Mr. Gonzo confirmed that in one of the documents, the Correctional Plan dated September 4, 1992 (Exhibit P2, Tab 10), there were some general characteristics that might be attributed to Mr. Ben as a result of a Case Management interview. In a later document, a Progress

Summary Report dated April 23, 1996 (Exhibit P2, Tab 14), the general wording (“their” crimes) had been changed to specific wording (“his” crimes). Mr. Gonzo could not say what may have motivated this change. Mr. Gonzo did note that any of these types of errors did not appear to have affected Mr. Ben’s ability to access release. [ 60 ] Ms. Skene has been with CSC for 12 years. She has been a corrections program operator at Saskatchewan Penitentiary and Riverbend Institution, as well as a parole officer. Ms.

Skene was able to explain some of the programming available at Saskatchewan Penitentiary. [ 61 ] With respect to substance abuse issues, inmates can access the National Substance Abuse Program delivered within the institution. There are two kinds of programs: the moderate and the high intensity. The moderate intensity program takes place in half- day sessions, for six weeks and is facilitated by one corrections program officer. [ 62 ] The high intensity program is facilitated by two corrections program officers and is four to five months duration.

The program takes place for full days, morning and afternoon, four days a week, with the fifth day allowing for one-on-one counselling with the corrections officer and the offenders in that program. [ 63 ] With respect to substance abuse programming, there is also an Aboriginal version of both the moderate and high intensity programs. The duration is the same, but with the Aboriginal program, there is an Elder involved and the program takes place in a circle setting. [ 64 ] As for anger management issues, there is now a violence prevention program at Saskatchewan Penitentiary.

As with the substance abuse programs, there is moderate and high intensity programming. The moderate program is twelve weeks duration, while the high intensity is six months, with two corrections officers facilitating the delivery. [ 65 ] There is also an Aboriginal version of the violence prevention high intensity program, with two corrections officers and an Elder being involved in the delivery.

The program is called “In Search of Your Warrior” and looks at childhood issues and what led the person to where they are now. [ 66 ] After successfully taking either the substance abuse or the violence prevention program, maintenance programs are available. These can be accessed on a weekly, bi-weekly or monthly basis. [ 67 ] Due to the nature of the programs offered, and the time commitment required, only one program can be taken at a time. Ms.

Skene advised that if an individual has both substance abuse and anger management issues, usually the substance abuse program is taken first, then the violence prevention program. [ 68 ] The high intensity substance abuse and violence prevention programs are offered twice a year. If one is looking at someone who will benefit from both of the programs, Ms.

Skene suggested such an individual would be looking at three years in custody to complete them. [ 69 ] There are also maintenance and “booster” programs that CSC operates in the Prince Albert community that offenders on various forms of release can access. [ 70 ] Ms. Skene was asked her opinion with respect to taking programming in an institution, such as Saskatchewan Penitentiary versus taking programming in the community. Not surprisingly, Ms. Skene was of the view that programming in the institution is more

valuable. She said that their programs are highly structured and allow the offender to participate in a safe environment, conducive to change. There are also public places, such as the range or recreation areas, that may present challenges which can allow inmates to practice the tools they are learning.

In the facility, you are always ensured that there are sufficient participants in the group and that people will be able to make it to the sessions, as opposed to in the community, where there can be problems that might interfere both with the offender’s ability to make it to the sessions or other individuals being able to attend. In custody, there is someone available 24 hours a day, seven days a week, as support for the offender. Ms. Skene stated that “CSC believes we have the best programs there is to have”. (ii) Mr.

Ben ’s Support Group [ 71 ] A number of people testified at this hearing indicating they were prepared to support Mr. Ben upon his release from custody. These people were Dr. Gary Peckham, Cecil Eashappie, Abe Friesen, and Marlene Montgrand. [ 72 ] Dr. Gary Peckham is a counsellor/therapist with a degree in theology. Dr. Peckham was contacted by Marlene Montgrand, a friend of Mr. Ben, who asked him to work with Mr. Ben. He met with Mr. Ben for five one-hour sessions, commencing in September 2011. His counselling is faith-based. Dr. Peckham has counselled Mr.

Ben in the areas of relationships, substance abuse and violence. He is prepared to continue working with Mr. Ben. [ 73 ] Cecil Eashappie lives in Prince Albert and has known Mr. Ben for more than 25 years. They first met in the early 1980s and frequently partied together. Mr. Eashappie was in Saskatchewan Penitentiary in 1993 and became involved in Native Spirituality and cultural activities by taking

part in healing circles, sweats and speaking to Elders. He continued with that for three to four years at Riverbend Institution. Mr. Eashappie has continued to practice traditional Aboriginal ways. [ 74 ] When Mr. Eashappie was released from custody, he furthered his education by taking a Chemical Dependancy addictions course and Lifestyles Coach training. Mr. Eashappie has worked at a Federal “half-way” house and for Metis Addictions Council of Saskatchewan (MACSI). He also worked at McDonald’s Metals as a steelcutter for ten years.

He is presently working at four different schools as a school counsellor. [ 75 ] In the early 2000s, Mr. Ben would visit with Mr. Eashappie. Mr. Eashappie believed that Mr. Ben wanted to change, but it did not happen. Mr. Eashappie described Mr. Ben’s attitude about change as “the feeling was there, but the work wasn’t there”. [ 76 ] Since Mr. Ben has been in custody on this last occasion, Mr. Eashappie has visited him in the Correctional Centre on one occasion, a few months prior to the hearing. Mr. Eashappie believes Mr. Ben is ready to make changes in his life now. Mr. Eashappie noticed a change in Mr.

Ben’s attitude when he met with him. In the past, Mr. Ben was reluctant to talk about his problems, and now he is prepared to talk about issues he has. [ 77 ] Mr. Eashappie is aware that Mr. Ben has turned to the Bible as a means of support, rather than the Native traditional teachings. Mr. Eashappie indicated it is up to Mr. Ben to make his choices about what he wishes to believe in. Mr. Eashappie stated that he will support Mr. Ben in any way that he can. [ 78 ] Abe Friesen lives near Prince Albert and is an electrician/general contractor and pastor. He has known Mr. Ben since 2002. Since 2002, Mr.

Ben has worked for Mr. Friesen off and on. Mr. Ben stayed with Mr. Friesen for a period of time in 2002-2003, and in 2006, for a period of about one year. [ 79 ] Mr. Friesen has seen a major change in Mr. Ben. When Mr. Friesen first met Mr. Ben, Mr. Ben didn’t know the difference between good and evil. Now, Mr. Ben’s relationship to God has totally changed. Now, Mr. Ben understands “when it is wrong, it is wrong, and when it is right, it is right”. [ 80 ] When Mr. Ben is released from custody, Mr. Friesen is prepared to provide Mr. Ben with a place to stay and a job.

[ 81 ] Mr. Friesen said that he had bailed Mr. Ben out of custody about two and one-half to three years prior to January 2012. Mr. Friesen advised that he was aware that Mr. Ben was later on warrant status as a result of not attending Court in Loon Lake on August 27, 2009, on those outstanding matters. Mr. Friesen said that during the time Mr. Ben was on warrant status, he only spoke with him once, on the telephone. During that conversation, he did encourage Mr. Ben to turn himself into the police. [ 82 ] Marlene Montgrand has known Mr. Ben for about 15 years.

She resides in Denare Beach, which is about four and one-half hours from Prince Albert. Ms. Montgrand works as a career counsellor at Northlands College in Creighton. She has worked in the past in the area of mental health therapy and addictions. [ 83 ] Mr. Ben resided in Pelican Narrows with Ms. Montgrand for a period of about three years from 1997 to 2000. Ms. Montgrand does not consume alcohol and she would not allow Mr. Ben to consume alcohol when they were together. The relationship ended because Mr. Ben was not prepared to make changes in his lifestyle. [ 84 ] Ms. Montgrand knew Mr.

Ben when he was at the Prince Albert Grand Council Healing Lodge in 1998. She was aware that he had walked away from the Healing Lodge and was unlawfully at large. She admitted that he stayed with her off and on during the time he was “on the run”. She did not turn him in to the police. She indicated that she told him to turn himself in, but she was not going to put him out of a place to stay. [ 85 ] Ms. Montgrand and Mr. Ben resumed their relationship in 2008. Ms. Montgrand believes Mr. Ben is a very nice man and she has seen him grow and become a different person. Ms. Montgrand is prepared to support Mr.

Ben in any way she can. [ 86 ] Mr. Ben was at Ms. Montgrand’s residence in April 2010. He was once again on warrant status as a result of having failed to appear in Court on April 1, 2010. Ms. Montgrand was aware of this and did not call the police to have him arrested. [ 87 ] Ms. Montgrand and Mr. Ben were in an argument in April 2010, approximately three months before the matter occurred that is now before the Court. After the fight, Mr. Ben left and Ms. Montgrand was really mad. She called the police and reported she had been assaulted by Mr. Ben. Mr.

Ben was charged with common assault. [ 88 ] When the assault charge went to trial, Ms. Montgrand told the prosecutor that she couldn’t remember clearly what happened. In her testimony in this matter, Ms. Montgrand said what had occurred was Mr. Ben placed both his hands on the sides of her head and was saying “listen to me”. Her glasses were damaged as a result of what took place. [ 89 ] When Ms. Montgrand reported the matter to the police, she said she was afraid Mr. Ben would come back and stayed away from her residence.

She made several calls to the police to see if he had been apprehended, saying she didn’t want to see him. Ms. Montgrand said the reason she said this was because “they [meaning the police] listen better”. (iii) Mr. Ben [ 90 ] Mr. Ben is residing at the Prince Albert Correctional Centre (PACC), where he has been remanded since his arrest on July 27, 2010, for the present offence. He is now taking his GED 12 and worked for one month in the kitchen as a baker. He also met with Harry Michael, a Program Elder at the jail. [ 91 ] When Mr.

Ben was first incarcerated at the PACC, he was placed in the “high profile” range, where he stayed until May 2011. During this time, he was in an isolated area, with minimal contact with other inmates.

[ 92 ] After May 2011, he moved to the “dorms”, where he stayed for three months. There were ten bunk-beds (“double-bunked”) on two sides, for a total of forty inmates housed there. It was very loud and you were never alone. There were a number of young inmates there, half his age, who were up all hours of the night. Mr. Ben applied to go to the “units”. He is now on the “units”, alone in a single cell. [ 93 ] Mr. Ben has also been attending Bible study at PACC. Two ministers, Skip Wilson and Dave Webster, lead these groups.

These people are involved with the Beulah Land Baptist Church, which is in the process of setting up a “Reformers Unanimous” Addiction Program in Prince Albert. As noted in a letter from Beulah Land Baptist Church, filed as D3 in these proceedings, the Prince Albert

chapter started in November 2011. It “is a faith based addiction program meaning it focuses on the key to real behaviour change in life through faith principles that have their origins in the Bible”. If Mr. Ben attends this program, he would be the first candidate from the PACC to enroll. [ 94 ] Mr. Ben was asked about whether he could resist going to Loon Lake, where he frequently becomes involved in criminal activity. He said that when his mother was alive, the only thing he would go back there for was to see her. She is now deceased. Mr. Ben was asked if he felt anything pulling him to Loon Lake.

He said “No... except family”. He was asked if he was prepared not to go to Loon Lake or whether he could stay 100 miles away from Loon Lake. Mr. Ben said “Yeah. I’m pretty sure I can”. [ 95 ] Mr. Ben acknowledges that alcohol and violence programs are something that he needs and he is prepared to take

part in them. He has completed some counselling with Dr. Peckham and he is willing to continue with that. He will work further with the individuals from the Beulah Land Baptist Church group. He will rely on Mr. Friesen for support regarding a place to stay and employment, and Mr. Eashappie and Ms. Montgrand for general support. Mr. Ben will continue to get guidance from the Bible. (iv) Expert Evidence [ 96 ] The Court heard from two experts during the hearing of this matter: Dr. Shabehram Lohrasbe and Dr. Terry Nicholaichuk. Dr.

Lohrashbe was the person who prepared the assessment as ordered by the Court under s. 752.1 of the Criminal Code for use as evidence in this matter. Dr. Nicholaichuk testified on behalf of Mr. Ben. For the most part, their evidence was consistent. 1. Dr. Lohrasbe [ 97 ] Dr. Lohrasbe has been practicing forensic psychiatry for more than twenty-five years. He has testified in more than one hundred Dangerous/Long-Term Offender hearings.

He was qualified to give opinion evidence in the area of the risk of future violence for an individual and the possibility of eventually controlling that risk in the community, with particular reference to Mr. Ben. [ 98 ] Dr. Lohrasbe noted there were limitations to his assessment. At p. 23 of his report, tendered as Exhibit P4 in these proceedings, he stated that: This was a difficult assessment primarily because it was difficult to get reliable information from Mr. Ben.

He is not an articulate man and often responded to my questions with a perplexed look and pursuing details was often met with bafflement and frustration. A major concern is that he does not remember much of his past actions and hence quite predictably disowns what he cannot recall. His poor recollection of past events is likely related to alcohol consumption at the time of those events... [ 99 ] In his report, under the heading “Psychiatric diagnoses”, at p. 24, Dr. Lohrasbe indicated that “Mr.

Ben does not appear to suffer from any major mental disorders wherein there is a loss of contact with reality (psychosis). There are also no indications of a Mood Disorder or Anxiety Disorder”. Dr. Lohrasbe was of the view that one diagnosis that can clearly be applied is “Alcohol abuse and Dependence”.

[ 100 ] At p. 25, Dr. Lohrasbe details his findings regarding Antisocial Personality Disorder and Psychopathy, indicating that: The other diagnosis that appears to be clearly present is Antisocial Personality Disorder (APD). APD is principally a descriptive and behavioural [ sic ] diagnosis of a pattern of behaviours that are persistently dysfunctional. The basic feature is repeated lawbreaking, often associated with irritability, aggression, recklessness, impulsivity, deceitfulness, and irresponsibility with commitments...While there is little doubt that Mr.

Ben has an Antisocial Personality Disorder, he does not have the relentlessly self-centred, vindictive, grandiose, entitled, and unempathic, cold interpersonal style (usually very evident during interviews) that is associated with Psychopathy. His antisocial behaviours have been chronically problematic, but Mr. Ben does not exhibit the emotional or interpersonal features of psychopathy. [ 101 ] In assessing Mr. Ben, Dr. Lohrasbe used the “HCR-20”, an empirically based clinical guide.

At p. 26 he discusses the HCR-20 by noting that: Conceptually, the HCR-20 organizes ‘risk factors’ or ‘risk items’ into past, present and future. Its 10 Historical factors obviously concern the past . The 5 Clinical items are meant to reflect present , dynamic (changeable) correlates of violence. The future is addressed through the 5 Risk Management items, which focus attention on situational post-assessment issues that may aggravate or mitigate risk. Hence, HCR-20 takes its name from these three scales; H istorical, C linical and R isk Management, and from the number of items (20). [ 102 ] In his report, Dr.

Lohrasbe provided his findings on each of risk factors. With respect to H1, Previous Violence, at p. 27 of his report he said: Previous violence is, quite appropriately, the first item to consider, as it is generally the single best individual predictor of future violence. The probability of future violence increases with each prior violent act... This important risk factor is clearly present with Mr. Ben, and is of great significance to the risk assessment. [ 103 ] At p. 28 of Dr.

Lohrasbe’s report, he reviews H5, Substance Use Problems: Although the precise nature of the link between substance use problems and violence is unknown, the fact that there is a link is well recognized in clinical practice and in the research literature. It is one of the strongest correlates of heightened risk for violence. This risk factor is present when there is serious misuse of alcohol, street drugs, or prescription drugs, especially when there has been a clear impact on one or more areas of functioning, such as health, employability, intimate relationships, etc. This risk factor is clearly present with Mr.

Ben and is one of the most important and relevant factors in this case. [ 104 ] In his

summary of the application of the HCR-20 to Mr. Ben, Dr. Lohrasbe found at p. 33 of his report that “Of the 18 risk factors that can be assessed at this time, 14 are present. Such a numerical breakdown of risk factors suggests that, barring specifics that suggest otherwise, the risk for further violence should be considered to be high”. [ 105 ] Dr. Lohrasbe discusses possible treatment options for Mr. Ben at pps. 35-38 of his report under the heading “Treatability and risk management”. At p. 36, he notes that given Mr.

Ben’s “history of serious and recurrent violence, there is a glaring omission in the treatment programs that have been offered to him: a comprehensive Violent Offender Treatment Program”. Dr. Lohrasbe indicates taking programming of this nature may have the effect of reducing Mr. Ben’s risk to reoffend in a violent manner. [ 106 ] As well, at p. 37 of his report, Dr. Lohrasbe notes there are “two interconnected ‘positive’ (so to speak) prognostic indicators: age and ‘burnout’. Mr. Ben is now in his early fifties. Middle age is not a time of life associated with a high incidence of physical

violence”. [ 107 ] On the following page, he says that: ‘Burnout’ is a phenomenon closely associated with ageing, but refers more specifically to the decline in antisocial attitudes, interests, associates and actions. Despite his problematic attitudes towards the Justice system, there are indicators that Mr. Ben is in fact ‘burning out’. He is now a misfit in prison. He no longer identifies with the brash, boisterous, younger inmates. He longs for contact with family and children. [ 108 ] At pps. 38-39 of his report, Dr. Lohrasbe provides a

summary of his assessment, indicating that: 1. As things stand, the risk for violence that Mr. Ben poses in the foreseeable future is high. 2. The prospects for effective reduction of risk using currently available approaches and programs in the foreseeable future are not encouraging but cannot be dismissed. 3. Similarly, based on his past performance, the probability of him being safely managed in the community with available resources in the foreseeable future is discouraging, but could be improved after more effective treatment. Additionally, Mr.

Ben’s age, burnout, and ‘jailhouse fatigue’ may bolster his compliance with management in the community. 4. The longest period of follow-up in the community is recommended to assist in risk management. 5. Risk, treatability, and prospects for management in the community are not unchanging, and will need to be reassessed prior to any plans being made for his return to the community. [ 109 ] In his testimony, Dr. Lohrasbe reviewed Mr. Ben’s plan to remain offence free in the future: to rely on Ms. Montgrand, Mr. Friesen and other supports in the community, and to put his faith in God. Mr.

Ben also has the fear that if he reoffends, he will be looking at a long period of custody. Mr. Ben is of the belief that he will be able to hold it together no matter what the pressures are. [ 110 ] Dr. Lohrasbe dismissed this plan as unrealistic. He suggested that Mr. Ben has a “naively optimistic view”, that may be quite heartfelt. Dr. Lohrasbe believes that Mr. Ben does not grasp the enormity of the transformation that he needs to make to be resistant to pressures and temptations when he is out in the community. Dr. Lohrasbe was also unsure if Mr. Ben is even capable of making this transformation. 2. Dr.

Nicholaichuk [ 111 ] Dr. Nicholaichuk received his Masters degree in clinical psychology in 1977 and his PhD in clinical psychology in 1987. He is currently a psychologist in private practice. He has completed more than 70 assessments for Dangerous/Long-Term Offender hearings. He was qualified to give opinion evidence in the area of clinical psychology and the assessment and risk and treatment of violent individuals. [ 112 ] As mentioned previously, there were a number of similarities in the evidence of the two expert witnesses. For example, Mr. Ben was given a diagnosis of Alcohol Abuse and Dependence by Dr.

Lohrasbe, which Dr. Nicholaichuk did not take issue with (p. 4 of Dr. Nicholaichuk’s report, tendered as Exhibit D2 in these proceedings). As well, Dr. Nicholaichuk, like Dr. Lohrasbe, did not find that Mr. Ben displayed the personality characteristics normally associated with psychopathy or narcissism (the criminal personality factor) (p. 9, Dr. Nicholaichuk’s report). [ 113 ] In his testimony, Dr. Nicholaichuk also agreed there was no question that Mr. Ben meets the criteria for being diagnosed as “antisocial”. However, Dr.

Nicholaichuk noted that this finding is so common in individuals within the jail population, it is of no real value.

[ 114 ] Dr. Nicholaichuk agreed with Dr. Lohrasbe’s assessment of Mr. Ben’s manner of expression, indicating it was clear that Mr. Ben had some difficulty expressing himself and describing his own internal emotional states. Dr. Nicholaichuk thought this was most likely due to the effects of his upbringing and education (p. 9, Dr. Nicholaichuk’s report). [ 115 ] Dr. Nicholaichuk evaluated Mr. Ben on the “VRS” scale, which is specifically designed to assess his risk for violence. Mr.

Ben’s maximum pro-rated score on the VRS placed him in the medium risk category, with the probability of violent recidivism set at approximately 32.8% over 4.4 years in the absence of an effective intervention or community management strategy (p. 11, Dr. Nicholaichuk’s report). [ 116 ] Dr. Nicholaichuk suggested that “Mr. Ben’s risk could well be somewhat lower. His risk was primarily attributed to his pattern of substance abuse and associated violence, and his association with criminal peers (again, his family)” (p. 11, Dr. Nicholaichuk’s report). I took this to mean that if Mr.

Ben were able to control his alcohol use, thereby possibly reducing his opportunities for violence, and if he stayed away from his family at Loon Lake, then Mr. Ben’s risk could be lowered. [ 117 ] At page 13 of his report, Dr. Nicholaichuk discusses Mr. Ben’s need for treatment, noting that “Mr. Ben has some awareness of the problems he must correct, but has not taken any concrete steps to address them. This is evinced by his frequent relapses.

Although he has taken some programs in the past, he has been unable to effectively transfer whatever he has learned to the community for an extended period of time”. [ 118 ] At p. 11-12 of his report, Dr. Nicholaichuk reviews Mr. Ben’s likelihood of recidivism in general, indicating that: Mr. Ben’s risk for general criminal recidivism was assessed by means of the Level of Service Inventory-R. This is a widely employed, normed scale designed to assess criminal risk and assist in the identification of factors which are contributory to it. Mr.

Ben was rated at the High Medium range of risk on this administration of the LSI-R. Individuals such as this can be expected to engage in some sort of criminal behaviour with the probability of .61 (61% recidivism) over one year. [ 119 ] Dr. Nicholaichuk, at p. 17 of his report, suggests that in his opinion, “the most likely victims of his violence will be his peers (e.g. the other men and women with whom he drinks) and obviously, police officers engaged in attempts to restrain him while he is intoxicated”. [ 120 ] Dr.

Nicholaichuk is of the firm belief that any assessment tool with respect to risk to reoffend must be adjusted for the offender’s current age. He pointed out there is now a small, but growing, literature which addresses this issue, citing one study (Barbaree and Langford (2003)) which found that “recidivism declines with age in a linear fashion with offenders who are 51 years or older at release” (p. 14, Dr. Nicholaichuk’s report). [ 121 ] At p. 16 of his report, Dr. Nicholaichuk provides the opinion that: All of the assessments of his risk for recidivism reported above, placed Mr.

Ben in the medium to high risk range. However, these estimates were not age corrected. If one takes into consideration the importance of factoring in Age at Release in establishing risk, the most likely conclusion is that Mr. Ben’s risk would be somewhat lower than the non-corrected estimates given above. For example, Sampson & Laub, (2003) showed that even among the most chronic and highest risk offenders they studied (followed from the age of 7 to 70), violent crime declined rapidly with age, particularly among men who were past 50, and was almost non-existent among men who reached 60. [ 122 ] Dr.

Nicholaichuk admitted in his report that Mr. Ben is somewhat unusual in that he committed the predicate offence at an older age, as Mr. Ben would have been age 50 when he assaulted Cpl. Hodge (p. 16, Dr. Nicholaichuk’s report). I take this to mean that Mr. Ben may already have deviated from the statistical expectations of the research referenced by Dr. Nicholaichuk.

[123] Dr. Nicholaichuk recognized that for Mr. Ben to be successfully managed in the community, he must remain sober. Dr.Nicholaichuk suggested that this treatment take place in the community as he is of the view that learning is enhanced when instructiontakes place in the environment in which new skills are expected to be displayed (p. 16-17, Dr. Nicholaichuk’s report). [124] Dr.

Nicholaichuk closed his report with a discussion about Long-Term Supervision orders that can be imposed upon a personwho is declared a Long-Term Offender, or now, since the 2008 amendments to the Criminal Code, as part of a sentence for a personfound to be a dangerous offender. Dr. Nicholaichuk commented: If Mr. Ben is declared a Long Term Offender, the provisions of the sentence allow the supervising parole officer to suspend him for 90days on suspicion of any sort of deterioration in his functioning, such as a return to substance abuse.

It can be a very powerfulsupervision tool and should allow for a reasonable level of protection for the public as the conditions of supervision can be quitestringent. I am not convinced, however, that Mr. Ben requires the maximum duration of supervision for the reasons given above. III. LAW

a) Statutory Framework [125]

Part XXIV of the Criminal Code sets out the dangerous offender criteria and sentencing scheme. The relevant sections for thepurpose of this application are: Section 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 of otherpersons 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 . . .

Section 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 ofimprisonment for a term of two years — and order that the offender be subject to long-term supervision for a period that does not exceed10 years; or (

c) impose a sentence for the offence for which the offender has been convicted. Section 753(4.1) The Court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by theevidence 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. Section 753(5) If the Court does not find an offender to be a dangerous offender, (

a) the Court may treat the application as an application to find the offender to be a long-term offender,

section 753.1 applies to theapplication and the Court may either find that the offender is a long-term offender or hold another hearing for that purpose; or (

b) the Court may impose sentence for the offence for which the offender has been convicted. [126] In R. v. Warawa, 2011 ABCA 294 , [2011] A.J. No 1065, at paragraphs 9 and 10, Justice Rowbothom of the Alberta

Court of Appeal talked about two changes to the dangerous offender regime that are of relevance here, noting that: 9. The wording in section 753(1) has changed from “may” to “shall”, making the finding that an offender is dangerous mandatory oncethe statutory criteria are made out. Prior to the 2008 Amendments, sentencing judges retained discretion to decline to declare asdangerous an offender who met the statutory criteria. 10. With the 2008 Amendments, the discretion has shifted to the sentencing stage.

Whereas previously an indeterminate sentence wasmandatory when an offender was declared dangerous, now the court sentencing a dangerous offender has discretion to impose anindeterminate or a fixed sentence, with or without a long-term supervision order (section 753(4)).

However, that discretion is limited bythe newly added section 753(4.1) which creates a presumption that an indeterminate sentence shall be imposed unless the Court is“satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure...willadequately protect the public against the commission by the offender of murder or a serious personal injury offence.” [127] In this case, I must determine if the offence for which Mr. Ben was found guilty was a serious personal injury offence and thatMr.

Ben constitutes a threat to the life, safety or physical or mental well-being of other persons. In examining whether Mr. Ben poses athreat, I must look at whether there is a pattern of behaviour showing a failure by Mr. Ben to restrain his behaviour and a likelihood thathe will cause death, injury or inflict severe psychological damage on other persons by a failure in the future to restrain his behaviour. Alternatively, Mr. Ben may pose a threat if there is a pattern of persistent aggressive behaviour showing a substantial degree ofindifference by Mr.

Ben respecting the reasonably foreseeable consequences to other persons of his behaviour. [128] If these criteria are met, I must find Mr. Ben to be a dangerous offender and at that point may exercise discretion with respect tothe nature of the sentence I impose. If the criteria are not met, then I must consider whether Mr. Ben should be designated a long-termoffender or be sentenced in the normal course for the offence before me.

b) Common Law Principles respecting Dangerous and Long-Term Offenders [129] In R. v. Harris, 2011 SKPC 176, at paragraph 60, Judge Hinds provides a concise review of case law that is of assistance in thematter before me, noting that: [60] There is a great deal of case law which provides guidance on dangerous and long-term offender applications. In

summary, thefollowing principles are applicable to this hearing: 1. The Crown has the onus of proof beyond a reasonable doubt to establish that the offender fulfils the criteria in s. 753 (R. v. Ewenin,2009 SKQB 207, para. 23; R. v. Natomagan, 2010 SKPC 7 at para. 56). 2. The principles of sentencing contained in the Criminal Code, ss. 718, 718.1 and 718.2 must be considered by the Court (R. v. Johnson,2003 SCC 46 at para. 23, [2003] 2 S.C.R. 357). 3. Sentencing is an individualized process in which the trial judge has considerable discretion in fashioning a fit sentence.

In the case ofa dangerous offender application, the focus must remain on the offender’s own record, personal characteristics, and on the availability oftreatment and rehabilitation programs for the particular offender (R. v. Merasty, 2011 SKPC 109, at para. 110; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 (S.C.C.) at para. 82; R. v. Daniels, 2011 SKCA 67 at para. 19.) 4. The primary purpose of the dangerous offender legislation is the protection of the public (R. v. Johnson, 2003 SCC 46 at para. 19; R.v. Ewenin, 2009 SKQB 207, para. 22).

Recent amendments to the dangerous offender legislation “... have placed greater emphasis onthe primacy of the protection of the public.”: R. v. J.E.M., 2011 BCSC 715 at para. 37.

IV. ANALYSIS a) s. 753(1) (a)(

i) Criminal Code [ 130 ] Section 753(1) (a)(

i) of the Criminal Code requires that the Crown must prove beyond a reasonable doubt that: (

i) the offence before the Court is a serious personal injury offence; (ii) there has been a pattern of repetitive behaviour; (iii) there has been a failure to restrain that behaviour; and (iv) there is likelihood of causing death, injury or severe psychological damage through similar failures in the future. (

i) Is the offence of s. 270.01 of the Criminal Code a serious personal injury offence? [ 131 ] This issue was argued thoroughly during the assessment application made by the Crown. I adopt the ruling I made on this point at paragraph 23 of Ben : I find this offence is a “serious personal injury offence” as defined by s. 752. Mr. Ben’s actions involved the use of violence. In addition, Mr. Ben’s conduct endangered or was likely to endanger the life or safety of Cpl.

Hodge, and his conduct inflicted, or was likely to inflict severe psychological damage on the officer. (ii) and (iii) Is there a pattern of repetitive behaviour showing a failure by Mr. Ben to restrain his behaviour? [ 132 ] The issue of what is required for a “pattern” to be shown was canvassed by Justice Ottenbreit in the Queen’s Bench decision of R. v. Casemore , 2009 SKQB 306 , at paragraph 9 : [9] A pattern does not need to equate to similar fact evidence; general similarity is sufficient.

There need not be a lengthy history of violence or aggression for a pattern to be found, so long as there are sufficient elements of similarity in the offender’s behaviour. The pattern must contain an element that the dangerous behaviour was not restrained in the past, and there must be a likelihood that the same behaviour in the future will not be restrained and will cause death, injury or severe psychological damage.

Or, alternatively, the pattern must contain aggressive behaviour which demonstrates a substantial degree of indifference to the reasonably foreseeable consequences to the victims of the offence. [ 133 ] The conviction dates, and where available, the facts, with respect to Mr. Ben’s previous 15 convictions for offences of violence can be found at paragraph eight of this decision, while the facts with respect to the predicate offence are contained in paragraph nine. [ 134 ] Ms. Newman, on behalf of Mr.

Ben, urges me to reject the facts regarding the offences as contained within the CSC documents, notably the four convictions in 1979, 1982, 1985 and 1987, as being unreliable due to errors found in the CSC records. [ 135 ] I recognize that errors were made by the Corrections staff in information that was added to Mr. Ben’s file. In some cases those errors were rectified, while in others, they were not. From the examples shown in these proceedings, the errors did not appear to be of a substantial nature, and certainly they did not appear to affect Mr.

Ben’s opportunities either within the institution or regarding his eligibility for release.

[ 136 ] As well, the facts that were contained within the CSC documents tended to be brief and lacking in detail. In some instances, there was little more indicated than the confirmation that alcohol was a contributing factor and that an assault occurred. Therefore, I am of the view that there is little possibility of errors in substance in this material. [ 137 ] As a result, I have accepted the evidence found within the CSC documents in reaching my conclusion on this point. [ 138 ] Ms. Newman, on behalf of Mr.

Ben, also submits that I should not include the offences of Uttering Threats when looking at whether a “pattern” has been established. On this point, she relies on the Alberta Court of Appeal decision of R. v. Neve , 1999 ABCA 206 , which states at paragraph 165 that: We agree that there will be cases where uttering threats will certainly form part of a pattern of behaviour sufficient to satisfy ss. 753(a)(

i) or (ii). However, to determine if specific offences fall within the proscribed patterns under s. 753 , it is essential to assess the offences in context, having regard to what actually happened and why.

For example, there is a world of difference between someone who conveys a threat directly to a police officer about a third party and the stalker who threatens his or her victim directly and then takes steps to carry out that threat. [ 139 ] In Neve , the facts were that the accused had been convicted of four separate offences of uttering threats, the statements having been made in the first instance when she was 15, the second when she was 19 and the remaining two when she was 20.

Three of the four threats were made to third parties, rather than directly to the intended target. [ 140 ] The Court found in Neve that there was no intention by the accused to carry out the threats, there was no evidence that she made any effort to carry out the threats, the context in which the threats were made suggested that her statements were understandable, and there was no serious injury or severe psychological damage to anyone as contemplated by the test as set out in s. 753 of the Criminal Code . [ 141 ] Although the situation with Mr.

Ben is substantially different than the circumstances found within Neve , as Mr. Ben was much older than Ms. Neve when he committed the offences and he made his statements directly to the victims, I find that this argument has some merit, and I have not included the three charges of Uttering Threats in my determination of whether a “pattern” exists. [ 142 ] There is no room for doubt on the evidence before me that Mr. Ben has repeatedly become intoxicated and then acted out in a violent and unrestrained fashion.

The facts show that on the occasions of the Robbery with Violence (October 19, 1979), the two charges of Assault Peace Officer (July 14, 1982, and August 26, 1985), the Assault (November 6, 1985), the two charges of Assault Causing Bodily Harm (October 15, 1991, and May 3, 2005), the Manslaughter (June 25, 1992), as well as the predicate offence, Mr.

Ben was consuming alcohol, then became angry with people for either real or perceived slights, and acted out with violence or threats of violence. [ 143 ] I appreciate there are differences with respect to the nature of the violence in that some instances involve female victims, some involve male victims, while others are linked to police officers. I also recognize that in some instances violence was threatened, whether verbally or with a weapon, while in others there was contact and, on occasion, injury or death.

Nonetheless, I find, based on the test as outlined in Casemore , that there are sufficient similar elements in Mr. Ben’s behaviour to warrant a finding of “pattern” of behaviour and that Mr. Ben was not able to restrain that violent behaviour in the past. [ 144 ] I should also note that if I am wrong in my decision to include the four offences for which the facts are contained in the CSC documents in this analysis, I am still of the view that a sufficient pattern exists to meet the required test. [ 145 ] Finally, if I am wrong in my decision regarding the pattern being shown by Mr.

Ben consuming alcohol and acting out in a violent way, I find that by examining only the four offences where bodily harm, death or psychological harm occurred, namely the Manslaughter, the Assault Causing Bodily Harm involving Vincent Bearboy, the Assault Causing Bodily Harm involving Joanne Kiseyinewakup and the predicate offence, that a pattern is also evident.

(iv) Is there a likelihood of causing death, injury or severe psychological damage through similar failures in the future? [ 146 ] It is evident from the facts of the various violent convictions, including the predicate offence, that Mr. Ben’s use of violence is connected with his inability to control his alcohol addiction. There is no evidence before me that Mr. Ben can stop drinking at this time.

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