R. v. Awasis Date:, 2016 BCPC 219

Citation: R. v. Awasis Date: 20160630 2016 BCPC 0219 File No: 221359 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. JOHNNY AWASIS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE C.L. BAGNALL Counsel for the Crown: D. Nearing and M. Scott Counsel for the Defendant: K. Westell and T. Anderson Place of Hearing: Vancouver , B.C. Dates of Hearing: Feb 2, 3, 4, 5, 10, 16, 20, 26, Apr 22, Dec 14, 15, 16, 2015,

May 16, 27, June 1, 2016 Date of Judgment: June 30, 2016 [1] On September 1, 2011, Johnny Awasis was charged with one count of sexual assault, arising from events which occurred onAugust 9, 2011, and one count of sexual assault with a weapon, arising from events which occurred on August 31, 2011. After a trialwhich occupied five days, on December 20, 2012, I convicted Mr. Awasis on both counts. In lieu of conventional sentencing the Crownseeks a finding that Mr. Awasis is a dangerous offender. [2] The applicable

section in the Criminal Code is

section 753. The relevant subsections are these: 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 (iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature asto compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behaviouralrestraint; 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.

(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.

(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidenceadduced 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. [3] In proceedings under this section, the onus is on the Crown and the burden of proof is beyond a reasonable doubt. [4] In respect to the proof of risk of future harm, the Crown must prove a present likelihood of future harm, as described by theSupreme Court in R. v. Lyons, (SCC), [1987] 2 S.C.R. 309, at paragraphs 93 and 94: The appellant asserts that a "likelihood" is ipso facto not susceptible of proof beyond a reasonable doubt. He cites in support thefollowing statement of Isabel Grant, in her

article "Dangerous Offenders" (1985), 9 Dal. L.J. 347, at p. 360: How does one prove beyond a reasonable doubt that at some time in some setting, an individual is likely to endanger someperson. Surely if we add "beyond a reasonable doubt" to a "future likelihood" the sum total can be no greater than a balance ofprobabilities; a standard we would never accept in a criminal trial. However, as Holmes has reminded us, the life of the law has not been logic: it has been experience.

The criminal law mustoperate in a world governed by practical considerations rather than abstract logic and, as a matter of practicality, the most that can beestablished in a future context is a likelihood of certain events occurring. To doubt this conclusion is, in actuality, to doubt the validity ofthe legislative objectives embodied in

Part XXI, for to require certainty in such matters would be tantamount to rendering the entireprocess ineffective. Moreover, I am not convinced, even as a matter of logic, that the appellant's submission is sound. It seems to me that a"likelihood" of specified future conduct occurring is the finding of fact required to be established; it is not, at one and the same time, themeans of proving that fact. Logically, it seems clear to me that an individual can be found to constitute a threat to society withoutinsisting that this require the court to assert an ability to predict the future. I do not find it illogical for a court to assert that it is satisfied

beyond a reasonable doubt that the test of dangerousness has been met, that there exists a certain potential for harm. That this is reallyonly an apparent paradox is aptly captured by Morden J. in R. v.

Knight (1975), (ON SC), 27 C.C.C. (2d) 343 (Ont.H.C.) at p. 356: I wish to make it clear that when I refer to the requisite standard of proof respecting likelihood I am not imposing on myself anobligation to find it proven beyond a reasonable doubt that certain events will happen in the future -- this, in the nature of things would beimpossible in practically every case -- but I do refer to the quality and strength of the evidence of past and present facts together with theexpert opinion thereon, as an existing basis for finding present likelihood of future conduct.

The position of the Crown [5] Here the Crown relies on subsections 753 (1) (a) (

i) and (ii), but not 753 (1) (a) (iii). The Crown also relies on subsection 753(1) (b). [6] The Crown submits that Mr. Awasis should be declared a dangerous offender and that he should be sentenced to serve anindeterminate sentence. The position of the defence [7] The defence submits that the Crown has failed to prove a pattern of behaviour as required by the two subsections 753 (1) (a) (i)and (ii). The defence says further that the Crown has not proven that Mr. Awasis is indifferent regarding the consequences of hisactions.

With respect to section 753 (1) (b), the defence says that the Crown has not proven that Mr. Awasis failed to control his sexualimpulses. The defence says further that it cannot be concluded to the requisite standard that Mr. Awasis constitutes a threat to the life,safety, or physical or mental wellbeing of others. [8] The defence says that Mr. Awasis should not be declared a dangerous offender, that he should instead be declared a long termoffender. The defence says that even if he is declared a dangerous offender, that the evidence demonstrates that Mr.

Awasis is treatablewithin the period of time that would be an appropriate sentence here. The defence says he ought to be sentenced to eight to nine years,less time served, and a long term supervision order for ten years. The formalities [9] Counsel are in agreement that the predicate offences are clearly “serious personal injury offences” within the meaning ofsection 752 of the Criminal Code. [10] The requisite Consent having been filed on June 24, 3013, an application was made under

section 752.1 (1) for an order that anassessment be performed on Mr. Awasis. Dr. Rakesh Lamba conducted that assessment and filed a report dated September 9, 2013(Exhibit 9 in these proceedings). [11] As required by section 754 (1) of the Code, on October 20, 2013, the Attorney General of British Columbia consented to theapplication being made under

section 753. The required notices were provided to the offender’s counsel from time to time. Why have these proceedings taken so long? [12] These matters have been before the Court for a lengthy period of time, which requires some explanation. I delivered verdicts onDecember 18, 2012, and early in 2013 the Crown indicated the intention to apply for a declaration that Mr. Awasis is a dangerousoffender, and the formalities were dealt with over the course of that year, as I have reviewed. Eleven days in July, 2014, were scheduledfor the hearing.

Approximately a week before the first day scheduled for the hearing, Mr. Awasis discharged his counsel. The elevendays which had been set aside were lost. Mr. Awasis retained another lawyer, and discharged that lawyer as well. He then retained Mr.Anderson, and new hearing dates were scheduled in February, 2015. [13] Almost from the outset, Mr. Awasis challenged the constitutionality of the relevant subsections of the Criminal Code, and hecontinues to formally assert that challenge. The issues he raised were the same as the issues dealt with by Mr.

Justice Voith in R. v.Boutilier, 2012 BCSC 1391, 2014 BCSC 2187, and 2015 BCSC 901, which case was ongoing during the last three years. Counsel forthe Crown and for the accused obviously agreed that those decisions were binding on this Court in their entirety, so there was somedelay while we waited for decisions in Boutilier to be made. [14] Those decisions were appealed. Because of the declaration in the Supreme Court suspending the effect of that decision, the lawwas clear, and the result in the Court of Appeal would not impact the present proceedings, so this matter progressed.

The Court ofAppeal handed down its decision, which may be found at 2016 BCCA 235, on June 2, 2016, the day following final submissions in thecase at bar, ruling that the relevant sections are constitutional. [15] The present hearing commenced on February 2, 2015, and continued for fourteen further days over the course of aboutseventeen months, ending on June 1, 2016. Mr. Awasis’ antecedents and early life [16] Mr. Awasis’ parents and grandparents were survivors of the Residential School system. His mother was raped at the school sheattended and became pregnant at the age of 13.

Her community could not support her with the child and she eventually surrendered thechild to social services and made her way to Vancouver. She bore two more children. She lived on the streets, addicted to alcohol andsleeping in vehicles. In this context she met Wilfred Awasis, described by Ms. Johnny as “a violent alcoholic”, with whom she had fourmore children.

[ 17 ] Mr. Awasis is the second of the children born to Bertha Johnny and Wilfred Awasis. He was born on May 1, 1981, and is now 35 years of age. His childhood was marked by his parents’ substance abuse, neglect, violence and terrible instability. At the age of six, Mr. Awasis was left with an aunt in Saskatchewan while his mother returned to Vancouver. Ms. Johnny did not retrieve Mr. Awasis as planned, so his aunt took him to a Residential School and left him there.

He was sexually, physically, and emotionally abused during the time he spent at that school, estimated to be about seven months. [ 18 ] He would have been seven years of age when he was reunited with his mother and returned with her to Vancouver. The neglect continued, resulting in Mr. Awasis and his siblings being repeatedly apprehended by agents of the Ministry for Children and Family Development of the time.

He either was returned to his mother or he returned to her on his own, numerous times, finally leaving her residence at the age of 18. [ 19 ] It is clear from all of the materials available about his early life that Mr. Awasis had difficulties at school because of the unstable lifestyle of his family and his own learning difficulties. He also presently attributes some of his difficulties to racism that he experienced at school in Vancouver.

However, he did advance in school and in alternative programs, some of which were arranged for him by his Youth Court Worker, Carol Fletcher, until approximately grade 8, when he left school in order to sell drugs. [ 20 ] It is also clear that Mr. Awasis was abusing alcohol and other drugs from a very early age. He was using crack cocaine by the time he was 15 years of age. Mr. Awasis’ youth record [ 21 ] Mr. Awasis was first convicted of a criminal offence as a youth in 1994, at the age of 13.

His youth record includes the following offences: 1994 Assault and Extortion 9 months probation 1995 Robbery and Theft 6 months open custody 1996 Escape lawful custody 45 days secure custody 1997 Break and Enter Time served and 1 year probation Attempt theft over $5000 90 days open custody Unlawfully at large 60 days consecutive Theft under $5000 80 days open custody and 9 months’ probation 1998 Mischief and Assault peace officer 5 months secure custody on each charge [ 22 ] The Crown presented the evidence of Dr. Louise Sturgess on February 5, 2015.

Her curriculum vitae is Exhibit 13 in these proceedings and her report about Mr. Awasis is part of Exhibit 7 (Binder #5). Dr. Sturgess, a clinical psychologist, conducted an assessment of Mr. Awasis in October, 1994, when he was 13 years of age. He had been convicted of assault and extortion, his first youth offences. [ 23 ] Dr. Sturgess’ report includes the following conclusion at page 9: The assessment failed to reveal any severe pathology like psychosis or mood disorder.

However, the assessment gave indication that Johnny has borderline intellectual functioning and that he most probably has some learning disability. His reading skills are only at the grade four level. There are also indications that he probably suffered from attention deficit hyperactivity disorder as a child, but we do not know if it was ever diagnosed and if any medication was prescribed. At this point, he presents as an emotionally detached youth who suffers from moderate to severe conduct disorder. There are also indications that he has a severe problem with substance abuse.

His pattern of antisocial behaviours are well entrenched and as a result they will not be easy to change. It is a concern for the community that his aggressivity seems to be escalating. At the time of the assessment, Johnny was out of control and he showed little ability to control his temper, and he gave no indication that he is able to experience empathy for his victims. The prognosis is very guarded with Johnny, but there is little doubt that he needs structure and consequences. [ 24 ] Dr. Sturgess agreed with the suggestion made to her during cross-examination that Mr.

Awasis was a child “who never had a chance”. [ 25 ] On February 4, 2015, the Crown presented the evidence of Ms. Carol Fletcher. She supervised Mr. Awasis as a Youth Probation Officer between the years 1994 and 1998, while he was 13 to almost 18 years of age. A synopsis of Ms. Fletcher’s interactions with Mr. Awasis and copies of various reports she prepared about him are collectively Exhibit 12 in these proceedings. [ 26 ] Ms. Fletcher described her dealings with the offender as “a rollercoaster right from the beginning”. Mr.

Awasis at that stage in his life was not cooperative with efforts to supervise and assist him in the community. During all of these years he was either in custody or else being supervised by Ms. Fletcher. I will not detail all of the efforts she made to encourage Mr. Awasis to adopt prosocial behaviour. Her attempts to assist him were numerous and varied, and are set out in her testimony. Mr. Awasis repeatedly represented to her that he wished to take advantage of specific programming and then failed to attend or to remain when she arranged that program for him.

[ 27 ] In response to a question during cross-examination, Ms. Fletcher said, “Well, he -- he would consistently say that he wanted to stay out of trouble, and he wasn’t really very happy with his lifestyle, although he did deny drugs and alcohol being an issue, which I felt was an issue. I’m not -- I don’t believe that when he said those things he wasn’t telling the truth. I think he sincerely wanted a better life, but he just couldn’t follow through with anything” (February 4, 2015, at page 75-76). Mr. Awasis’ early adult life and early criminal record [ 28 ] Mr.

Awasis has almost no legitimate employment history. In his late teens he worked temporarily for Labour Ready and Labour Unlimited. Mr. Awasis has been involved over the years in the street level drug trade. He has said that he engaged in seasonal fishing work with his family, although it seems that this was so long ago that none of the report-writers involved here were able to determine when this occurred. [ 29 ] Mr. Awasis and his longtime girlfriend, Tina Brett, had a child in 2005, who is now and has been since a very early age, in the care of the Ministry. Ms. Brett also struggles with addiction issues.

She and Mr. Awasis are no longer a couple. He was convicted of assaulting her in 2005. [ 30 ] Mr. Awasis’ adult criminal record began in 2001 and includes convictions for possession of a scheduled substance (2 convictions), possession for the purpose of trafficking, theft (3 convictions), robbery (2 convictions), possession of a weapon, failure to attend court, assault (3 convictions), mischief, and breach of probation (2 convictions). Sexual assault of A.C. [ 31 ] On December 18, 2006, Mr. Awasis was sentenced respecting the sexual assault of A.C. The Crown proceeded by way of Indictment. This Court heard Ms.

A.C.’s testimony on February 4, 2015. [ 32 ] The events which gave rise to this charge occurred on March 10, 2006, which was the first time that Ms. A.C. had met Mr. Awasis. Mr. Awasis was then 24 years of age. She was 15 years of age. She had been drinking with friends, and one of those friends introduced Mr. Awasis to the group. He was intoxicated. When Ms. A.C. left the group to go home, the offender followed her. He got off the bus they were on when she got off the bus. She walked a short distance and then her route home took her into an alley. He followed.

He grabbed her, put his arms around her and dragged her into a carport. She screamed. He told her that he had a knife, but he did not produce a weapon during the event. He covered her face with his hand and choked her. He said, “I’m going to fuck you in the ass”. She struggled and tried to fight him off. He punched her a number of times. She tried to reason with him, to bargain with him, offering to obtain money for him. The attack ended because the police arrived. They had been called by someone in the area who heard Ms. A.C.’s screams, they went to the alley quickly and they arrested Mr.

Awasis in the carport. [ 33 ] The complainant was injured as a result of this attack. She had bruises, scratches and bumps on her face and neck and a bloody nose. Photographs of her injuries are included in Exhibit 10 in these proceedings. This was a terrifying event for her. [ 34 ] Mr. Awasis entered a plea of guilty in Provincial Court respecting this charge, a pre-sentence report was prepared, and Judge Weitzel sentenced Mr. Awasis. Judge Weitzel referred to the actions of Mr. Awasis as “cowardly”, “violent”, and “the type of offence one connotes to a sexual predator”. [ 35 ] The Crown and counsel for Mr.

Awasis submitted that the time he had served prior to being sentenced, which was agreed to be the equivalent of 19 months in custody, was an appropriate sentence. He was sentenced to serve one day and was placed on probation for a period of two years.

He was ordered, in addition to other conditions, to report to a probation officer, and as directed by that officer, to attend sex offender treatment and other counselling, and to abstain from the consumption of alcohol and drugs except those prescribed for him. [ 36 ] Copies of all of the relevant documents, reports and transcripts are at Tab 7 of Exhibit 1 in these proceedings. [ 37 ] The evidence of Rhiannon Jones, a probation officer, presented on February 10, 2015, focused on Mr. Awasis’ performance while bound by Judge Weitzel’s two year probation order, which commenced on December 18, 2006. Ms.

Jones referred to a number of documents contained in Exhibit 1 at Tab 7, and also Exhibit 16, a compilation of Mr. Awasis’ dealings with Corrections and the courts from December, 2005, until the present. It is not necessary to recite the details in these reasons. It is sufficient, in my view, to say that Mr. Awasis was convicted of breaching Judge Weitzel’s two year probation order seven times. The breaches were either consuming intoxicants or failing to report to his probation officer. Mr.

Awasis received no treatment or counselling during this two year period because he was not reporting to his probation officer in such a way that counselling could be arranged for him. During those two years, and in spite of being repeatedly convicted of breach of probation for failing to do so, he reported to a probation officer just twice. Mr. Awasis’ criminal record continues [ 38 ] During the time he was bound by Judge Weitzel’s order and in the few weeks following, Mr.

Awasis was convicted twice of theft under $5000, twice of breaking and entering, and twice of breaching a court order, in addition to the seven breaches of Judge Weitzel’s probation order. A review of the Conviction

Summary Report which is included with Mr. Awasis’ criminal record in Tab 2 of Exhibit 1 shows that during this period of time he was rarely out of custody for long, usually a matter of days or weeks, before committing a new criminal offence. [ 39 ] On April 2, 2009, having spent the equivalent of three and one half months in custody, Mr. Awasis was sentenced to serve 1 day in custody respecting convictions for theft, breach of bail, and two counts of breaching Judge Weitzel’s probation order.

He was released on that day, still bound by a probation order made with respect to another matter in February, 2008. [ 40 ] One week later, on April 9, 2009, he committed the robbery which resulted in his first federal sentence. On July 29, 2009, he was sentenced by Judge de Couto of the Provincial Court to serve two years in jail ( 2009 BCPC 351 ).

[ 41 ] Given an opportunity to address the Court, Mr. Awasis indicated that he was remorseful respecting his actions, that he was intoxicated at the time, that he had a son who was something of a focus for him, and that he had “had time to reflect on my crime and I’ve been thinking about it every single night” (Tab 5 of Exhibit 1). [ 42 ] The judge noted that Mr. Awasis wished to address his criminality. But he highlighted the fact that Mr. Awasis had acknowledged a serious addiction in 2006, when he was sentenced for sexually assaulting A.C., but had taken no counselling or treatment since then.

He had also then expressed an interest in attending a First Nations treatment facility, but had not done so. [ 43 ] Mr. Awasis appealed the sentence of two years incarceration. The decision of the Court of Appeal is found at 2010 BCCA 213 . [ 44 ] The Court of Appeal described the circumstances of this offence as follows, at paragraph 3. The offence occurred after midnight on April 9, 2009. The complainant boarded the SkyTrain in New Westminster. He observed three men sitting on the train talking. One of the men, Mr. Awasis, got up, walked over to the complainant and sat directly across from him. When Mr.

Awasis started to make conversation, the complainant became nervous and moved to the door, intending to get off at the next stop. As the complainant took his hands out of his pockets to steady himself, Mr. Awasis reached into the complainant's pocket and took out his wallet. Mr. Awasis removed three $20 bills from the wallet, and attempted to stuff the wallet through a crack in the door and onto the tracks. When the complainant grabbed his wallet back and pushed the emergency button, Mr. Awasis pushed him from behind and caused him to hit his head on the door.

The complainant exited the train at the next station, and notified security. Mr. Awasis was apprehended several stops later, in possession of the stolen money which he had attempted to hide in one of his socks. [ 45 ] The Court addressed the offender’s circumstances, beginning at paragraph 4: The appellant has a lengthy history of involvement with the criminal justice system, beginning when he was 14 years old. He is now 29. His criminal record contains over 40 convictions from 1994 to the present, with little time between convictions.

Other than the first conviction, each subsequent conviction resulted in a term of imprisonment either in the community or in jail. He has four previous convictions for robbery, and seven prior convictions for other violent offences (including assault, sexual assault, extortion, and assaulting a peace officer). At the time of the offence, the appellant had been out of jail for only seven days and was subject to a probation order. Mr.

Awasis has had considerable difficulty respecting court orders: there are numerous convictions for failing to comply with court orders, breach of probation, and escaping lawful custody, although some date from his youth. His imprisonment shortly before the commission of the offence resulted from a breach of a conditional sentence order two days after it had been imposed. The pre-sentence report indicated Mr. Awasis is an aboriginal person with a serious addiction to drugs and alcohol, including cocaine and marihuana.

There is no record of him seeking rehabilitation for his substance abuse problems while under community supervision, although he did complete some sessions of a substance abuse management program while incarcerated. [ 46 ] Ultimately, the Court of Appeal dismissed the appeal and upheld Judge de Couto’s sentence, noting this at paragraph 11: There was limited evidence to support an order for a rehabilitative sentence. Both the pre-sentence report and the appellant's counsel at the sentencing hearing indicated that the appellant has never made any genuine attempt at treatment for his substance abuse problems.

The appellant's actions in perpetrating the crime showed a high degree of awareness and deliberateness, and cannot be attributed solely to drunkenness. The appellant has a history of failing to comply with court orders, and this was his fourth conviction for robbery. In my opinion, the sentencing judge did not underemphasize the goal of rehabilitation. Serving his first federal sentence [ 47 ] Dr. Heather Burke performed a psychological evaluation and assessed Mr. Awasis for recidivism and treatment needs in October, 2009, as he began serving his 2 year sentence for robbery in the federal system. Mr.

Awasis was 28 years old at the time. [ 48 ] Dr. Burke’s curriculum vitae is Exhibit 11 and the report that she prepared at the time is Exhibit 2 in these proceedings. She testified on February 4, 2015. [ 49 ] She told the Court that she used the following instruments to measure Mr. Awasis’ risk to reoffend: the PCL-R2 (Psychopathy Checklist Revised), the VRAG (Violence Risk Assessment Guide), the HCR-20: Assessing Risk for Violence version 2, the SARA (Spousal Assault Risk assessment), and the Static-99/Stable 2007 tool. [ 50 ] Taking everything into account, Dr. Burke assessed Mr.

Awasis as at a high risk for sexual recidivism, at a high risk for violent recidivism, and at a high risk for recidivism in the area of spousal violence. Caroline Buckshot’s Elder Review [ 51 ] Ms. Buckshot testified on February 5, 2015. She is an Elder. She told the Court that a person becomes an Elder because “the people recognize him or her as such because of the way they live”. [ 52 ] Ms. Buckshot was employed providing Aboriginal spiritual services to offenders at the Regional Reception Assessment Centre in the federal system.

Incoming federal prisoners stay at the Centre for three months, during which time Ms. Buckshot meets frequently with and assesses each Aboriginal offender. She assessed Mr. Awasis in August, 2009, and wrote an Elder Review respecting his plans

for rehabilitation both in and out of custody, referred to as a “healing plan”. The Elder Review is Exhibit 14 in these proceedings. All of the information included in that report came from Mr. Awasis, except for the observations which appear on page 4. [ 53 ] Ms. Buckshot’s evidence was that she would have explained to Mr. Awasis that in terms of his potential for release or parole, it would be a greater disadvantage to him for her to write a healing plan that he did not follow, than for her to write a plan that was not particularly specific.

She testified that on the basis of the contents of the plan she wrote that Mr. Awasis indicated his commitment to the plan to her at the time. [ 54 ] Some of what he said to the Elder was at odds with his assertions to others on other occasions. Mr. Awasis told Ms. Buckshot that he did not attend a Residential School. He told her that he had been physically abused by his mother, by her boyfriend, and by various foster parents, but he did not tell her that he had ever been sexually abused. He said that he had been diagnosed with FAS and ADHD. [ 55 ] He told Ms.

Buckshot that he was “sick and tired of his addiction”. He said that he wanted to be a better example to his son, to upgrade his education and to prepare himself for employment in the construction industry. He recognized a connection between the physical abuse he experienced during his childhood and his present pattern of offending. [ 56 ] Mr.

Awasis committed himself to the healing plan that included abstaining from the use of intoxicants, participating in substance abuse counselling and counselling to address his dysfunctional childhood, maintaining a connection with his heritage, upgrading his education, accepting responsibility for his criminal behaviour and being honest with his Case Management Team. While serving the two year sentence for robbery [ 57 ] During his time in custody Mr. Awasis refused to participate in the treatment arranged for him, including sex offender programming. He later told Dr.

Lamba that he was using any drugs that he could obtain while in custody, and that the longest he was free of drugs was two weeks. [ 58 ] While in the community serving that sentence, on release or parole, Mr. Awasis was convicted of being unlawfully at large and of mischief. [ 59 ] His release on parole was suspended three times. On his first release on November 25, 2010, he was sent to a Community Residential Facility (CRF, often referred to as a “halfway house”) which specifically focused on First Nations offenders, called Circle of Eagles. Mr. Awasis left within one half hour of his arrival.

After he was apprehended, he misrepresented the reasons for his departure during his post-suspension interview. [ 60 ] On his second release on May 11, 2011, he was sent to Belkin House, and he left on his second day. He was heavily intoxicated when he was located and arrested on May 17, 2011. [ 61 ] On his third release, on June 14, 2011, again to Circle of Eagles, he left after one week. He was found intoxicated, in the act of damaging a vehicle, and was apprehended and returned to custody to continue his sentence. On this occasion Mr.

Awasis told the Board that he ran into some old friends and decided to drink with them. His release was revoked on July 11, 2011, the Board noting that Mr. Awasis had “not even attempted” to succeed on this release. [ 62 ] When he was interviewed in early 2013, the offender said this about this time period to Stuart Cadwallader, who prepared the Gladue report (Exhibit 23, at page 5): Johnny said that his lifestyle and consequent ongoing pattern of involvement with the criminal justice system continued up and until 2009, when he was sentenced to a period of 2 years’ incarceration.

He shared that, upon his release on parole, he struggled to deal with unaddressed childhood traumas, grief and loss, as well as a sense of general despair and frustration he felt about the difficulty of trying to develop some stability in his life. Initially reportedly unable to deal with these issues, he said that on two occasions, he made poor decisions which led to the suspension of his parole before again being released.

Johnny said that in returning to the community, he had hoped to address his issues in a healthy way and to plan for a future which would lead to the return of his son, but acknowledged that his plan had suffered because of a lack of adequate preparation and supports. [ 63 ] It appears that with respect to this sentence he was released for the last time on, or a day or two before, his warrant expiry date of July 28, 2011. August, 2011 Threatening at social services office [ 64 ] On August 8, 2011, about ten days after his release, he threatened an employee at a social services office.

Told that he would not be able to complete a full intake meeting that day, Mr. Awasis became upset and, among other things, said to the female employee in an angry and aggressive tone, “Should I come back after work and kill you?” The event was frightening for a person described as an experienced, “thick-skinned” Ministry worker. [ 65 ] On November 25, 2011, Mr. Awasis was convicted after a trial. He was sentenced to serve one day in custody with credit for 60 days already served, and he was placed on probation for one year. The predicate offences - August 9 and 31, 2011 The sexual assault of T.L.L.

[ 66 ] The night after he threatened the social services worker, in the early morning hours of August 9, 2011, the accused hired a prostitute, T.L.L., to perform a sexual service for him. They went into an alley. She asked him for money, and, instead of paying her, he took hold of her, putting one hand over her mouth and the other on the back of her head. He threatened to kill her if she made any noise. He told her to lie down in the alley but she convinced him to allow her to fellate him. This she did. Before he ejaculated, the accused stopped and walked away.

The complainant thought that he had been drinking and that he suddenly “realized what he was doing”. The complainant reported this incident to the police. [ 67 ] Before this event resulted in charges, on August 16, Mr. Awasis was arrested respecting the threatening charge, and he was released on a recognizance on August 24, 2011. The sexual assault of D.B. [ 68 ] One week later, on August 31, 2011, at about 2 am, D.B. went into an alley in the downtown area to urinate. When she stood up, Mr. Awasis was right in front of her. His penis was exposed and sheathed in a condom.

He grabbed her by the hair and called her names and told her to fellate him. She began to comply and then he told her that he would “fuck her up the ass and then cut her throat”. He produced a 10 inch long knife and put it against her neck. D.B. saw the lights of a vehicle in the lane and she escaped and ran to the vehicle. The occupants assisted her and the police were called. [ 69 ] The trial respecting these two sexual assaults occurred in late October and early November, 2012, and took five days. Mr. Awasis testified during the trial.

I did not believe his evidence nor did his testimony leave me with a reasonable doubt as to his guilt. Reasons for judgment were delivered orally on December 20, 2012, and may be found at 2012 BCPC 573 . Behaviour in custody in general and since his arrest on these charges [ 70 ] The accused was arrested respecting these offences on September 3, 2011, he was denied bail on September 20, 2011, and he has been in custody since then. [ 71 ] I have reviewed all of the documentation respecting Mr. Awasis’ numerous periods of incarceration, thousands of pages of materials contained in Exhibits 3, 4, 5, 6, 7 and 21.

It is not necessary to recite in detail how he has behaved over the years. For the most part, he was a problem inmate, disrespectful, disobedient, dishonest, aggressive, guilty of possession of contraband, including homemade alcohol, and so on. [ 72 ] More recently he has been behaving in a slightly different fashion. I agree with the characterization of Dr. Todd Tomita, a psychiatrist, who assessed Mr. Awasis at the request of the defence.

During his testimony he was asked about his conclusion after reviewing the Client Logs for the last few years, Exhibit 21, and he said at page 12 of the transcript of proceedings on February 20, 2015, “I think as a general observation it looks like he’s trying a little bit harder to stay -- to avoid problems and follow the rules”. [ 73 ] Mr. Awasis has also participated in a number of programs since his arrest. Certificates relating to these accomplishments are Exhibit 25 in these proceedings. All of the certificates relate to programs completed by Mr. Awasis in 2013.

Evidence presented by the offender The Gladue report [ 74 ] Counsel for Mr. Awasis began presenting evidence on February 16, 2015. The first witness called was Stuart Cadwallader, who prepared the Gladue report respecting Mr. Awasis in February, 2013, (Exhibit 23) and updated that report in February, 2015, (Exhibit 24). His qualifications were detailed in evidence and his curriculum vitae is Exhibit 22 in these proceedings. Mr. Cadwallader interviewed the offender for about four hours, and he interviewed nine other people, including Mr. Awasis’ mother, Bertha Johnny, during the preparation of his first report.

He reviewed much of the documentation respecting Mr. Awasis that is now Exhibits 1, 4, 5, and 6.

He reviewed a number of studies and a number of cases as background for his report. [ 75 ] He said this about what he referred to as “ Gladue considerations” in his report, at page 31 of the transcript of proceedings on February 16, 2015: Gladue considerations, when we -- when we speak to that aspect, we look at the impacts of systemic discrimination as applied to the nation, the community, the family, and the individual that’s before the court, as providing a context, a meaningful context, to explain who the Aboriginal offender is before the court in a holistic perspective to try to provide a context as to underlying issues that they may have, rather than focusing on the -- the symptoms that they may display. [ 76 ] Mr.

Cadwallader described the details of Mr. Awasis’ young life. He described the circumstances that pertained for Mr. Awasis’ mother as she matured and had her children.

I have reviewed these circumstances earlier in these reasons and I will not repeat them here. [ 77 ] The report includes this comment at page 5: Johnny reported that, since being incarcerated for the index offences, he has reflected upon his need to make concrete changes within his life and embraced the opportunity to develop a more structured post-release plan, beginning with his completion of specialized Corrections programming, attendance at an Aboriginal treatment centre and later involvement with services which would address his educational and vocational deficits.

[ 78 ] During his interview, in early 2013, Mr. Awasis told Mr. Cadwallader that he had never had non-consensual sexual relations. Mr. Cadwallader knew that this was almost certainly incorrect given the offender’s criminal record and the circumstances of the predicate offences. In spite of questions from Mr. Cadwallader with respect to this denial, which Mr. Cadwallader described as somewhat pressing, Mr. Awasis insisted that he did not know the victims of the predicate offences and he denied having any involvement in those offences. During cross-examination, Mr. Cadwallader indicated that he was aware that Mr.

Awasis had admitted his offences to Dr. Lamba, but that this inconsistency was not “necessarily concerning” to him (February 16, 2015, at page 54). [ 79 ] Mr. Cadwallader prepared an update to his report in early 2015, which is Exhibit 24 in these proceedings. For the purpose of providing this update, he spoke with Mr. Awasis, his mother, five other members of his family and a family friend, and fourteen members of the offender’s First Nation community or employees of potential resources for him in the community. What is striking about the results of the numerous relatively recent inquiries made by Mr.

Cadwallader is Mr. Awasis’ almost complete lack of connection with anyone outside of jail except for his mother and, perhaps, his younger brother, Isaac. Those individuals face their own challenges and cannot be concluded to be prosocial supports for Mr. Awasis once he is released into the community, other than in the sense of being emotionally supportive. [ 80 ] Before he wrote the update to the Gladue report, Mr. Cadwallader also reviewed the reports of Dr. Lamba (Exhibit 9), Dr. Tomita (Exhibit 32), and Mr. Awasis’ youth and Correctional Service Case Management files (Exhibits 1, 3, 4, 5, and 6). [ 81 ] Mr.

Cadwallader offered the opinion that Mr. Awasis appeared to be in much better health when he met with him in 2015 than he had been in 2013. He said that Mr. Awasis appeared to be “quite motivated” in regards to the plan that he now has for his release into the community, the details of which are set out in the updated report. [ 82 ] During cross-examination, in addition to the issue respecting “non-consensual sexual relations’, Mr. Cadwallader was asked about a number of assertions made by Mr.

Awasis to him during their interviews that were inconsistent with information either that he had provided to others, or that was contained in the records reviewed by the witness. Mr. Cadwallader appeared to consider such inconsistencies as not particularly significant. [ 83 ] Mr. Cadwallader agreed with the suggestion of the prosecutor that Mr. Awasis has never had “much Aboriginal experience”, in that he grew up, for the most part, on the Downtown Eastside of Vancouver.

In view of this, the prosecutor asked how connecting him with his Aboriginal language, beliefs, culture and spiritual practices would translate into law-abiding behaviour. The witness responded (page 70 of the transcript of proceedings on February 16, 2015): The ultimate hope is to provide him with a -- to allow him to define himself differently than what he otherwise might, to provide him with cultural teachings, to teach a root value system, to provide him with a sense of self that might be otherwise, again, than he has at that -- than he has at that time.

So the instance where he had said, you know, where he has been living in an urban environment where he has been predominantly supporting himself through dealing drugs, engaging in a community and associations that are consistent with this. To remove him from that, to give him a sense of who he might be or a sense of who he should otherwise have been as an indigenous man, to give him a sense of pride, give him a sense of self, give him a sense of purpose. That’s ultimately the goal of that. [ 84 ] Mr. Cadwallader indicated that Mr.

Awasis had plans to become a member of his father’s band on the Thunderchild Reserve in Saskatchewan. Mr. Awasis told him that this was his mother’s plan, and he decided to apply for membership in that band along with her. Mr. Cadwallader asked Bertha Johnny about this and she told him that she was asking for a change in her band membership because she could obtain a house on the Thunderchild Reserve. Mr. Cadwallader also spoke with elders at the Thunderchild Reserve, who indicated to him that the reserve has problems with poverty, violence and other crime, alcoholism and gang activity.

The witness gave further details, but it is sufficient to say here that Thunderchild Reserve would not be a suitable community for Mr. Awasis in the near future. [ 85 ] Other aspects of the plan for Mr. Awasis, as outlined by Mr. Cadwallader, were the focus of questions by the Crown during cross-examination. Certain steps in the plan will clearly not be possible because the facilities suggested will not accept Mr. Awasis, and some steps in the plan will be achieved only with difficulty. [ 86 ] A simple

summary of Mr. Cadwallader’s description of the steps Mr. Awasis must take in order to begin to live a crime-free life of necessity commences with a reference to his motivation, and to the complete unknown that lies there. Mr. Cadwallader spoke frequently of “hope” during his testimony. [ 87 ] The other witness presented by the defence was Dr. Todd Tomita, a psychiatrist referred to earlier in these reasons. Before I review his report and testimony, I wish to address the issue that arose with respect to the case of R. v. Ewert , 2015 FC 1093 . R. v.

Ewert and actuarial and hybrid measurement tools [ 88 ] This decision of the Federal Court was handed down on September 18, 2015. Mr. Awasis’ sentencing hearing was delayed at his request so that the Court could hear and consider evidence respecting the issues that arose in the case. That evidence was heard on December 14, 15 and 16, 2015, and on May 16 and 27, 2016. Submissions about this evidence were made on June 1, 2016. [ 89 ] The relevant facts in R. v. Ewert may be set out succinctly. Mr. Ewert was raised in suburban Surrey, BC, as a member of a Caucasian family.

He was, at the relevant time, a 53 year old Aboriginal individual, serving two life sentences for second degree murder and for attempted murder. [ 90 ] The Correctional Service of Canada (the CSC), through its employees, had administered various actuarial tests to determine Mr. Ewert’s risk for violence, and had used the results of that testing to make decisions respecting important aspects of his incarceration. Mr. Ewert challenged this practice on the basis that it was discriminatory. He claimed relief under sections 7 and 15 of the Charter .

[ 91 ] The tests used were the Psychopathy Checklist Revised (the PCL-R), the Violence Risk Appraisal Guide (the VRAG), the Sex Offender Risk Appraisal Guide (the SORAG), the Static 99, and the Violence Risk Scale - Sex Offender (the VRS-SO). The position of the plaintiff, Mr. Ewert, was that these tests were susceptible to cross-cultural bias. Dr. Stephen Hart, a psychologist, was called by the plaintiff and testified to this effect.

The Court characterized his opinion as follows at paragraph 31: Particularly important is Hart's opinion that given the pronounced differences between Aboriginal and non-Aboriginal groups, he would not apply the scores derived from the PCL-R, VRAG, SORAG, Static 99 or VRS-SO to Aboriginal persons which includes the Plaintiff. Hart's evidence exhibited the type of balance that the Court found helpful.

Rather than reject these actuarial tests out of hand, Hart suggested that the better approach was to have a structured clinical assessment of an Aboriginal offender which would include some consideration of the information derived from the actuarial tests in the totality of the circumstances of what is known about the offender. [ 92 ] The Court said this at paragraph 41: The conclusion from Dr.

Hart's expert report is that the actuarial tests are not sufficiently predictably reliable for Aboriginals because of the cultural variance or bias of the tests. [ 93 ] Having reviewed the statutory bases for the duties of the CSC towards inmates, the Court concluded, at paragraph 81 and following: In relying upon questionable tests and in failing to ensure that the tests are reliable, CSC has not taken "all reasonable steps" to ensure that the information about Ewert (or potentially other Aboriginal prisoners) is accurate, up-to-date and as complete as possible.

It is not necessary, on this issue, for the Plaintiff to establish definitively that the tests are biased; it is sufficient if he raises a reasonable challenge to their reliability pursuant to the aforementioned statutory requirements. The question is whether CSC's lack of action is sufficient to fulfil the legislated standard of all reasonable steps to ensure accuracy, currency and completeness, particularly in the face of Ewert's challenge, the actions of other countries and CSC's own actions in deciding not to use a similar test. That question must be answered in the negative.

The issue has been a long-standing one; it has not been addressed, and the Defendant's evidence in this case does nothing to confirm that it has taken the required reasonable steps. This is not an issue which CSC missed inadvertently. It has been a live issue since 2000, has been on CSC's "radar screen", and the subject of past court decisions where the Court contemplated that some similar type of confirmatory research was being conducted. It is time for the matter to be resolved. Therefore, the Court concludes that CSC has failed to meet its statutory obligation under s 24(1) of the Act.

The remedy shall address this breach. [ 94 ] Mr. Justice Phelan concluded that Mr. Ewert’s test scores were “like a branding -- hard to overcome” (at paragraph 58). He concluded that his rights guaranteed by the Charter had been infringed or denied. [ 95 ] The Correctional Service of Canada sought an order from the Federal Court of Appeal staying the interim order of Mr. Justice Phelan, made at the Merits Hearing during the trial.

In the decision of the Court of Appeal handed down on December 31, 2015, (not yet reported) Madam Justice of Appeal Trudel said this about the decision at trial: In a long set of reasons for judgment also issued on September 18, 2015, the Federal Court concluded that the use of specific assessment tools was both inconsistent with the principles in

section 4 (

g) of the Corrections and Conditional Release Act , S.C. 1992, c- 20, by not being responsive to the special needs of Aboriginal people and such use breached section 24 (1) of the same Act . Further, the Federal Court concluded that the use of the assessment tools also violated the plaintiff’s

section 7 Charter rights without

section 1 justification. Hence the interim order under appeal. Obviously the matter is still in front of the Federal Court as it intends to issue a final order enjoining the use of the assessment tools in respect to Mr. Ewert and other Aboriginal inmates “until, at minimum, [the appellant] conducts or has conducted a study that confirms the reliability of those tools in respect of adult Aboriginal offenders”.

In its reasons for judgment the Federal Court states that it will issue a Remedies Hearing Order to address the best and fairest manner of implementing the intended final order. [ 96 ] This synopsis of the Ewert decision, written by a Justice of the Federal Court of Appeal, highlights the differences between that case and the case at bar. R. v. Ewert concerns the statutory duties of the Correctional Service of Canada. [ 97 ] In addition, I would add that, although it is not perfectly clear, the use of the actuarial tools in respect of Mr.

Ewert, to inform decisions about the circumstances of his incarceration, seems not to have been like the use of the tools in the case at bar. The tools were used by Dr. Lamba and Dr. Tomita as a very small part of a wide ranging consideration of Mr. Awasis’ psychological make-up, his antecedents, and his future prospects. In this respect, it is noteworthy that alongside his general critique of the use of the tools for Aboriginal offenders, Dr. Hart approved of the way they were used by the experts in this case.

Here the results of the administration of the actuarial and hybrid tests were part of a contextual and individual review of Mr. Awasis’ risk level.

[ 98 ] Finally, it must be pointed out that Dr. Hart did not testify in the case at bar “that the actuarial tests are not good predictors of recidivism in Aboriginals - that they suffer from cultural bias…” as the Court said that he testified in Ewert (at paragraph 53 ). I will consider his testimony in the case at bar further in a moment. [ 99 ] I conclude that the decision in R. v. Ewert echoes a helpful caution that was in fact addressed by the experts who assessed Mr. Awasis and who testified in the case at bar, nothing more. Aside from that assistance, R. v.

Ewert represents part of a decision of another trial court respecting quite different issues than those that arise in the case at bar. It must also be highlighted that the Justice in the trial division has not yet concluded his decision respecting the issues. The case is neither a precedent nor persuasive authority respecting the issues which concern me. The evidence of Dr. Hart [ 100 ] In the case at bar, the defence has raised direct questions about the propriety of the use of specific actuarial and hybrid tools in assessing the risk for future violence of an Aboriginal offender like Mr. Awasis.

The Court heard a significant body of substantive testimony about these questions. [ 101 ] As I have indicated, Dr. Hart was called as a witness. His concern about the cultural variance of the tests used in assessing Mr. Awasis is set out in his evidence given on December 14, 2015, at page 6: But one of the things that was not taken into consideration when the Static-99 was constructed was culture. Similarly, gender was not taken into account because all the subjects were males, so it’s quite apparent that people are concerned about the validity of the static-99R when used with female offenders.

And a similar thing would be true for potentially for aboriginal cultures, because nobody took into account Aboriginal culture, nobody knows whether those items that were selected and statistically weighted, whether they are -- work the same way when we apply them to people from Aboriginal cultures as they would to people from dominant cultures in Canada. [ 102 ] Dr. Hart said this during cross-examination, at page 33: Q All right. And if I’ve understood your evidence today, you’re saying the PCL-R might be susceptible to bias. We don’t know. A That’s correct.

There are good reasons to believe that cross-cultural bias is an important and unanswered issue. There’s reasons to believe that there is bias or there may be bias, but there is no evidence that would help us to say with certainty whether the bias does or does not exist. Q So if I’ve understood your evidence, what you just said essentially is there’s no evidence that it is biased. Yes or no? A Correct. Q Got that right. You’re not saying there’s any evidence anywhere that there is bias in the test? A Correct. Q Okay. There might be?

A There’s an absence of proof and a complete absence of evidence that would enable you to answer the question. Q All right. So there’s no way to know at the moment if it is biased? A That’s correct. [ 103 ] Dr. Hart was asked about his own preferences and he indicated that he did not find actuarial instruments particularly helpful in conducting risk assessments. He went on to say this about the opinions of Dr. Lamba and Dr.

Tomita at page 48: On the other hand, I also recognize that many people use actuarial instruments and use them in a responsible manner, and they would not rely only on the test but try to incorporate other information, and I think that’s what, exactly what we’ve seen in the two reports that are being discussed today. The evaluators did not use only actuarial instruments. They tried to use those things plus other kinds of information to come up with a decision about risk that was contextualized and individualized. [ 104 ] Significantly, Dr. Hart went on to say, in answer to a specific question about whether Dr.

Lamba and Dr. Tomita used the actuarial tests in a responsible way: Yes. In fact that was my evidence in direct, is that I said that they did what I would consider to be perfectly appropriate jobs: used the tools well, used them accurately. There was no disagreement, really, between them, and I have no substantive disagreement with the way that they used and interpreted the tests, with the sole exception of whether the actuarial test, the Static-99 and the PCL-R are specifically validated for use with Aboriginal offenders. That’s the sole issue of disagreement.

[ 105 ] Towards the end of cross-examination on December 14, 2015, at page 55, Dr. Hart said this: Q …going back for a minute to the PCL-R, it’s the case, isn’t it, that you expect that when the survey samples are assessed there will not turn out to be much of a bias in the PCL-R testing? A That’s my hunch based on my own work. That’s -- I -- I’m just going to say that’s my hunch. It’s -- if I actually had research to base that on I’d be using the research and I -- but I believe that when we actually end up doing the research there’s a very good chance that we will find that there is minimal bias in the test.

That’s my hope. And now I’m going to say that’s in measurement terms. When we look at predictive bias is it going to work exactly the same way? I’m less certain about that. [ 106 ] After Dr. Hart had testified, an issue arose with respect to a study in progress that a potential witness for the Crown, Dr. Schweighofer, had become aware of, which was referred to as “Olver 2” during these proceedings. Counsel for the offender originally asked that I declare a voir dire in order to decide whether any remedies arising from the lack of disclosure of this information might be appropriate under the Charter .

I did embark on a voir dire on December 16, 2015. Mr. Westell abandoned that application on May 16, 2016, and I have considered the evidence that I heard on the voir dire as evidence on this sentencing. [ 107 ] On May 16, 2016, Dr. Hart was examined further about his opinion respecting the accuracy of the tests in question when used to assess an Aboriginal person. [ 108 ] This is what Dr. Hart said about his interest in the issue at page 67 of the transcript of proceedings on May 16, 2016: It’s not -- it’s not my primary focus of my research.

I don’t -- I don’t wish to take the 25 years that I’ve been doing research in this area and refocus it on the issue of whether or not there’s bias in the tests with respect to Aboriginal people. I take interest in the issue, I’m happy to support it, but I won’t change my life to be doing this. I have other stuff that I do. [ 109 ] Ultimately Dr. Hart said, in particular with respect to the PCL-R, that the test could be used in assessing Aboriginal individuals, but that the assessor should refrain from tallying up the numbers generated by the test. He said, “It’s the numbers that are problematic.

It all hinges on the numbers” (at page 73, May 16, 2016). To underline the point, this is what Dr. Hart said at page 83: …there should be nothing wrong with a clinician paying attention to risk factors, such as those included in the Static 99 or 2002, there should be nothing wrong with an evaluator doing an evaluation or risk assessment that pays attention to the things that are measured by the PCL-R, but the key problem would be for an evaluator adding up the numbers on any of those tests and interpreting them, that could have a negative impact, it could yield to discriminatory findings.

I’m -- the question is not whether -- for me, whether people use only those scores, it’s whether they use the scores at all. That’s what I’m objecting to. That given the absence of research suggesting that the tests are unbiased, and in light of the Federal Court’s decision in Ewert , right now we’re stuck in a position where using these test scores may actually introduce test bias that leads to discrimination against Aboriginal peoples.

So to me, if people use the tests in a way that is not quantitative, where they don’t generate numbers, then what we’re left with is paying attention to important risk factors and communicating about them in a way where counsel -- where the court can hear expert evidence, and decide how much weight to put on it. [ 110 ] The Crown presented the evidence of Dr. Anton Schweighofer with respect to this issue. His curriculum vitae is Exhibit C in these proceedings. He testified on December 15 and 16, 2015, and May 27, 2016. [ 111 ] Dr. Schweighofer disagreed with Dr.

Hart’s assertion that insufficient research has been done to justify the use of the instruments in question here in assessing Aboriginal persons. Dr. Schweighofer told the Court about the research that he is aware of that has addressed the issue, and opined that that research is a sufficient foundation for trust in the reliability and validity of the test results for members of that population. [ 112 ] On May 27, 2016, at page 15, he said this: Q So, if I’ve understood you, tools don’t have to be ideal or work ideally to be used, as long as a clinician understands the strengths and weaknesses of the tool?

A If they understand the strengths and weaknesses, but also, you know, is there some research in the case that this measure does aid us in our effort to provide a judgment about future risk. It doesn’t need to do that perfectly. Indeed, no tools do that perfectly, but we want to do it better than chance or other methods that might be at our disposal. So, for example, unstructured clinical opinion was not found to be very useful. The prediction of risk was not found to be robust.

And so we moved on to developing measures that facilitated our estimates of risk. [ 113 ] About the research referred to as Olver 2, which was criticized by Dr. Hart, Dr. Schweighofer said this on May 27, 2016, at page 19 of the transcript: The new Olver 2 research has a lot of numbers, but the ones that a clinician would focus on, an assessor would focus on most strongly, would be the total PCL-R score. And if you look at the Olver 2 research, the total PCL-R score predicted risk roughly identically in Aboriginal and non-Aboriginal populations.

I think it was .71 for the Aboriginal population and .73 AUC for the non-

Aboriginal population, and these were not significantly different. [ 114 ] Dr. Schweighofer adopted as accurate a statement made by Dr. Mark Olver in the Ewert proceedings (the Remedies Hearing) respecting the use of the PCL-R as follows at page 28: In response to Dr. Hart’s opinion in his affidavit of March 10, 2016, that the PCL-R should not be scored or interpreted for Aboriginal persons, I believe the state of the scientific research is such that the courts should not prohibit the use of the PCL-R on Aboriginal offenders pending further research.

From the present data there is evidence using rigorous methods and large representative CSC-based samples supporting the predictive accuracy of PCL-R scores for future recidivism with Aboriginal offenders. As with any tool, appropriate cautions should be taken in use of the PCL-R with Aboriginal offenders using it in conjunction with other forensic assessment tools and taking into consideration appropriate cultural and contextual factors that could influence appraisals of risk and recommendations for risk management. [ 115 ] Dr.

Schweighofer was asked about the researchers working in this area and the research that is being conducted. He is clearly familiar with this area of inquiry. He was asked whether he knew of anyone in the field who shared Dr. Hart’s view that the PCL-R, for example, should not be scored for Aboriginal offenders. Dr. Schweighofer indicated that he knew of no one who shared Dr. Hart’s view (May 27, 2016, at page 33). [ 116 ] Dr. Lamba was recalled to give evidence about this issue on May 27, 2016. It is important, and Dr. Lamba pointed out, that the results of his use of actuarial and hybrid tools in assessing Mr.

Awasis, the PCL-R and the Static-99R, were embedded in an assessment process that included interviewing Mr. Awasis for six and one half hours and reading approximately 2800 pages of material respecting his background. Nevertheless, he said that if he removed from consideration the results of those tests, that his opinion regarding Mr. Awasis’ risk for future violence would not change. [ 117 ] When experts disagree, the trier of fact must employ common sense and life experience to assess the weight to be given to each opinion.

The trier of fact may consider the qualifications of the experts, the experience that each expert has respecting the particular issue in dispute, and any benefits that might flow to the expert as a result of his or her opinion that might give rise to a bias. The trier of fact might consider the demeanour of the expert while giving evidence. Fencing with opposing counsel does not inspire confidence in terms of the impartiality of the expert witness. Sometimes the assessment of the weight of an expert’s opinion requires an examination of the materials that the experts considered.

The trier of fact may be called on to make decisions about the sufficiency of the materials as a basis for the disparate opinions of the experts. [ 118 ] Here Dr. Hart and Dr. Schweighofer both considered Dr. Olver’s study, Exhibit I, and they both also considered what we referred to as Olver 2. They came to different conclusions about the implications of the research and the opinions Dr. Olver expressed in his paper and elsewhere. [ 119 ] I wish to highlight that Dr. Olver was not called as a witness. The evidence before me with respect to this issue is that provided by Dr. Hart, Dr. Schweighofer, and Dr.

Lamba, each of whom has commented on the issue of the sufficiency of the research done to date respecting the reliability of the actuarial and hybrid tests in assessing Aboriginal offenders. [ 120 ] As I have indicated, Dr. Hart is aware of no research that would support the conclusion that bias is actually inherent in the tests. His opinion is that it has not been demonstrated by adequate research that there is no bias in the tests. Dr. Schweighofer testified that the instruments have been adequately tested, and that Dr. Hart’s opinion is not shared by others in the scientific community.

I accept his evidence in this regard. [ 121 ] On the basis of all of the opinion evidence I have heard respecting this issue, I conclude that the actuarial and hybrid measurement tools used to assess Mr. Awasis have been demonstrated to be reliable predictors of future risk of recidivism in Aboriginal offenders. [ 122 ] The case of R. v. Haley , 2016 BCSC 1144 , was handed down on June 27, 2016, just three days ago. Mr. Justice Fitch, then of the Supreme Court, considered, among other issues, the Ewert case, and the testimony of Dr. Hart that was presented in that case.

His conclusions about these issues are the same as the conclusions I have reached in the case at bar. The Assessments Dr. Rakesh Lamba [ 123 ] As indicated earlier in these reasons, Dr. Lamba, a psychiatrist, was designated under

section 752.1 (1) of the Criminal Code to assess Mr. Awasis. Dr. Lamba testified on February 2 and 3, 2015, and on May 27, 2016. His curriculum vitae is Exhibit 8 in these proceedings. He was ruled an expert and capable of providing opinion evidence in psychiatry, forensic psychiatry, the diagnosis and treatment of psychological disorders, and the assessment of risk of violent reoffending. Dr. Lamba is eminently qualified to give such evidence. His report is Exhibit 9. [ 124 ] Before preparing his report, Dr. Lamba read the transcripts of the testimony of T.L.L. and D.B., the victims of the predicate offences.

He reviewed all of the documents which are now Exhibits 1, 4, 5, and 7, literally thousands of pages of material. [ 125 ] Dr. Lamba also interviewed Mr. Awasis for approximately six and one half hours in August, 2013. During those interviews, as I have indicated, he administered various risk assessment instruments. [ 126 ] I note the following conclusions set out in Dr. Lamba’s report. Mr. Awasis does not meet the full criteria of any major mental

disorder. He does meet the criteria for poly-substance abuse and dependence, and in particular he has a dependence on alcohol. Strong features of conduct disorder are evident in his development from about the age of ten. His conduct disorder remained persistent and crystallized into severe anti-social personality disorder in adulthood. His lifestyle has for decades been characterized by instability, irresponsibility, impulsivity, lack of realistic future goals, drug and alcohol abuse and the choice of anti-social peers as associates. [ 127 ] According to the testing conducted by Dr. Lamba, Mr.

Awasis’ risk of violent recidivism is moderate to high. His risk of sexual recidivism is moderate to high. [ 128 ] Dr. Lamba told the Court that psychopathy is strongly associated with the likelihood of future violent behaviour. Mr. Awasis has a significantly high number of the traits that are associated with psychopathy. His behaviour over two decades, and the testing conducted by Dr. Lamba both show that he has an entrenched severe antisocial personality disorder, compounded by substance abuse. Dr.

Lamba told the Court that generally one’s personality does not change, but one can alter one’s behaviour. [ 129 ] Dr. Lamba opined that Mr. Awasis’ sexual offending is more a function of his antisocial personality disorder than a result of some sexual deviance that he has. [ 130 ] During his testimony in chief on February 2, 2015, at page 50 and following, Dr. Lamba said: Q You mentioned, in terms of his own particularized issues with treatment, motivation is a significant component, correct? A Yes. Q And that he says he’s motivated now, but he’s said that before and he didn’t follow through on it, correct?

A Correct. Q Is there any significance to the numbers of times that he’s been offered or required, in fact, to go to treatment, and didn’t do it? A Yeah, I think that is significant. I mean, you could attribute once or twice to circumstances, but a repeated pattern of doing that shows that he’s not motivated. Q In terms of ability to integrate what he’s learned, he’s, I believe, taken the violence prevention program at one point of his custodial status and reoffended after that. Is that indicative of him not integrating the treatment assistance?

A I’m trying to recall if he actually finished a violence prevention program. I will assume that he did. And your question is that he reoffended after that. What does that indicate? Does that indicate he cannot integrate? I think intellectually he can attend these programs and take from them and comprehend them and -- but he -- he does show a difficulty in putting it into practice. Se he -- he cannot integrate it in the sense that he cannot adhere to or generalize these gains. You know, can’t walk the walk. He learns the talk, but he -- he can’t walk the walk.

And this is the key to understanding these treatment programs. You know, just because somebody finishes school in our system doesn’t mean they are educated. You know, you’re pushed through school. And the same analogy I use, the treatment programs, you can finish them and be quite successful, do the homework and do the exercises and intellectually know the program, but real life involves practicing what you learn every single day, and that’s somewhat difficult. To change one’s behaviour day to day, when -- particularly when one is so entrenched in the opposite pattern in one’s life, that’s very hard.

Q So back as early as mid-1990’s when he was dealing with his -- his youth probation officer, he indicated, and you say this in your report, that he was sick of his criminal lifestyle. Do you remember -- A Yes. Q --recounting that? A And that was his motivation expressed at that time. Q And he’s recounted that a couple of times since in different court proceedings before different judges, correct? A I understand so, yes. Q So when one takes that statement that he -- that he himself expresses that he’s sick of his lifestyle, do we -- can we understand that as him having some insight as to his difficulties?

A I think one can say that he has some insight, partial as it may be. And he may truly be sick of his lifestyle and he may, you know, express that desire to change, but it’s the practice part that he -- he can’t follow through. So the controls, the behavioural controls, the practice

part is hard. [ 131 ] During cross-examination on February 3, 2015, Dr. Lamba was asked about the risks associated with Mr. Awasis’ substance abuse. He pointed out that although Mr. Awasis seems to understand that his use of various intoxicants is connected with his criminal behaviour, he does not seem to understand that he is the one who is responsible for the consumption of drink and drugs. Dr. Lamba expressed concern about Mr.

Awasis’ ability to exercise judgment in regards to alcohol and other drugs in spite of the fact that he seems to have achieved some level of insight. [ 132 ] On February 3, 2015, during re-examination, Dr. Lamba testified as follows: Q And my friend suggested to you, well, that period in August, 2011, was characterized by extreme chaos for Mr. Awasis, and that

somehow long term supervision order would assist in reducing homelessness, no money, and being in the downtown area, correct? A Yes. I mean, the general proposition is that these things would help, yes. But I’ve been saying all along, yes, these things can help, it all boils down to whether Mr. Awasis will avail himself of these things and accept supervision, accept care and supervision. Dr. Todd Tomita [ 133 ] The defence presented the evidence of Dr. Tomita, a psychiatrist, on February 20, 2015.

He was qualified to give opinion evidence in the areas of psychiatry, forensic psychiatry, the diagnosis and treatment of psychiatric and psychological disorders, and the assessment of risk for general, violent, and sexual reoffending. His curriculum vitae is Exhibit 31 in these proceedings. His report, dated June 30, 2014, is Exhibit 32. [ 134 ] Dr. Tomita narrowed the focus of his assessment to two issues: first, Mr.

Awasis’ level of treatability and the likelihood that treatment will reduce his risk of recidivism, and second, whether there is a possibility of eventual control of his risk in the community. [ 135 ] To prepare his report, Dr. Tomita interviewed Mr. Awasis for approximately 4 hours, and he reviewed the particulars provided by the Crown respecting the predicate offences, Correctional Service of Canada records respecting the offender from January, 2007 to February, 2013 (Exhibits 4, 5 and 6), Dr. Lamba’s report (Exhibit 9), Mr. Cadwallader’s report (Exhibit 23) and Mr. Awasis’ notes (Exhibit 34). Dr.

Tomita utilized the PCL-R, the Static-99R, the HCR-20, version 3, and he considered the results obtained by Dr. Lamba from the administering of the RSVP. [ 136 ] Mr. Awasis prepared some notes for his then lawyer in April, 2014, that were read and considered by Dr. Tomita. That document is Exhibit 34 in these proceedings. In the notes, Mr. Awasis described his changed approach to conflict and his understanding of the impact of his actions on the victims of the predicate offences. [ 137 ] Dr. Tomita concluded that Mr. Awasis has a severe antisocial personality disorder, with a high level of psychopathic features.

He opined as well that Mr. Awasis has a severe substance abuse problem. He is addicted to alcohol, cocaine and methamphetamines. These conclusions are, of course, consistent with other assessments which have been conducted respecting Mr. Awasis over the years, such as those of Dr. Sturgess, Dr. Burke, and Dr. Lamba. [ 138 ] Dr. Tomita notes that Mr. Awasis’ descriptions of the sexual abuse he has suffered have been marked by his “apparently selective disclosure” (at page 3 of Exhibit 32). He said this: It is difficult to establish the veracity of these accounts given Mr. Awasis’ apparently selective disclosure.

Ultimately, this traumatic history may be important from a risk perspective for two main reasons. First, as distressing memories may be a trigger to alcohol and drug use. Second, it may be helpful to understand the motivation behind his sexual offending. At this juncture, I can only conclude that he likely has some history of sexual abuse but the details as reported need to be questioned until corroborating sources are identified, which is unlikely, or consistency in his reporting, ideally in the context of a treatment program, emerges. [ 139 ] He notes the following at page 4 of his report: Mr.

Awasis’ alcohol and drug use is related to his criminal behaviour both directly as a destabilizer and disinhibitor, and indirectly as he has breached probation and parole multiple times by using alcohol and drugs. Although Mr. Awasis has blamed alcohol and drug use for his criminal behaviour, it is notable that his motivation to actively address these problems has only surfaced prior to sentencing in the past, and his ability or willingness to control his use has been poor, as evidenced by his repeated return to alcohol use, resulting in breaches, parole suspensions, and repeated criminal behaviours.

Mr, Awasis was only in the community for about a week after he reached his warrant expiry in August, 2011, before he committed the uttering threats offence and the first index sexual offence. He said that after his release from federal corrections, he stayed with his mother and brother for about one week and then left as it was too crowded. He stayed in overnight shelters in the downtown eastside of Vancouver and started using alcohol and drugs again, paying for them by steering customers to drug dealers.

It was in this context that the uttering threats conviction against a staff member at a BC Social Services office occurred on August 8, 2011, and then the first sexual offence on August 9, 2011, and the second sexual offence on August 31, 2011. [ 140 ] Dr. Tomita noted that Mr. Awasis’ alcohol and drug addiction is at a severe level. He reviewed the treatment attempts that Mr. Awasis has made in the past and concluded that he appeared in the past to lack internal motivation. He commented that the programs and counselling respecting addiction issues that Mr.

Awasis has engaged in more recently are “a positive beginning”, but are insufficient in light of the severity of his addiction. He said at page 8 of his report, Exhibit 32: Mr. Awasis has become more accepting of the fact that he needs to address his alcohol and drug addictions and make changes to his lifestyle if he wants to avoid future crime. The challenge at this juncture is trying to gauge the degree of internal motivation for change as Mr.

Awasis has presented in a similar fashion prior to past sentencing dates and failed to follow through on plans once sentenced. [ 141 ] During cross-examination he was asked about Mr. Awasis’ assertion that he is now ready to address his addiction, in view of the fact that he has said this repeatedly since he was 13 years of age. Dr. Tomita said that what is different now is the severity of the

sanction he faces as compared to the consequenc

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