R v Nickerson, 2014 NSPC 67

PROVINCIAL COURT OF NOVA SCOTIA Citation: R v Nickerson, 2014 NSPC 67 Date: 20140904 Docket: 2426129-40 Registry: Kentville Between: Her Majesty the Queen v Gordon Frank Nickerson Restriction on publication: s. 486.4 Criminal Code electronic version of the judgment. Editorial Notice: Identifying information has been removed from this electronic version of the judgment. Judge: The Honourable Associate Chief Judge Alan T. Tufts Heard: Oct. 1, 2, 16, 30, 2013; Jan. 9, 2014 Charge: s. 279(1.1) (

b) Criminal Code x 2 s. 272(2) (

b) Criminal Code x 2 s. 348(1) (

d) Criminal Code s. 159(1) Criminal Code x 2 s. 811 (

a) Criminal Code s. 266 (

a) Criminal Code x 2 s. 249(2) (

a) Criminal Code s. 252(1) Criminal Code Counsel: Robert Morrison, for the Crown Kenneth Greer, for the defence

By the Court : INTRODUCTION [ 1 ] Gordon Frank Nickerson has pled guilty to 12 offences under the Criminal Code . These offences involve the kidnapping and sexual assault of two female victims during which time he took them from their home in Yarmouth County and drove to New Minas, Kings County, Nova Scotia. The details of the various charges are set out in Appendix “A” to this decision. The facts underlying these offences are more fully described below. [ 2 ] The Crown applies to have Mr. Nickerson declared a dangerous offender and seeks a sentence of detention in a penitentiary for an indeterminate period pursuant to s. 753(4) (

a) of the Criminal Code . [ 3 ] The defence argues that the Crown has not met the burden of establishing that Mr. Nickerson is a dangerous offender and seeks a lengthy fixed penitentiary term. Alternatively, the defence argues that even if Mr. Nickerson is declared a dangerous offender a disposition short of an indeterminate period of detention is more appropriate. The defence argues that a fixed penitentiary term or fixed penitentiary term together with a 10 year supervision period – a long term offender declaration – is more appropriate. PROCEDURAL BACKGROUND [ 4 ] Mr.

Nickerson first appeared in Provincial Court on March 1, 2012. On March 5, 2012. A s. 672.11 assessment order was made which, when returned, found that he was fit to stand trial and not “ NCR - not criminally responsible”. On April 5, 2012 Mr. Nickerson re-elected to Provincial Court and on April 16, 2012 he pled guilty to all charges before the Court. On the same day the Crown gave notice of its intention to seek an assessment order under s. 752.1 (Dangerous Offender Application). On April 30, 2012 the s. 752.1 assessment order was made. [ 5 ] Mr.

Nickerson was never interviewed during the assessment period; however, a report was filed within the 30 days following the assessment period. Mr. Nickerson then took issue with the legality of the Crown’s dangerous offender application. In a separate ruling made on the 1 st day of August, 2013, I found that the failure to interview Mr. Nickerson did not jeopardize the Crown’s dangerous offender application nor made it a nullity. The Attorney General’s consent, necessary for the application, was received.

In all other respects all the procedural regularities have been complied with and no issues were raised with any other prerequisites to the Crown’s application. UNDERLYING FACTS OF THE PREDICATE OFFENCES [ 6 ] The facts as I have described them below come from statements admitted, by consent, from the two victims, S.L. and M.L. and the accused as well as from narratives in Dr. Theriault’s report and other exhibits filed, in particular a letter composed by the offender. [ 7 ] Mr. Nickerson had been dating the victim S.L. She met him on an internet dating site.

Initially she felt sorry for him as he had nowhere to live. The relationship lasted only a few months. [ 8 ] Mr. Nickerson disclosed to S.L. that he had been in prison but was not forthcoming about all of the details, including the violence he perpetrated against […] . However, S.L. was able to discover more details of the reasons Mr. Nickerson had been in prison from Mr. Nickerson’s sister. When she confronted him with this he disclosed more details of his past; however, his attitude and demeanour towards her changed. He began to focus on his own circumstances and spoke about suicide.

At this point S.L. began to “back off”. This appears to have caused Mr. Nickerson to become more obsessive. S.L. reported him to the police and eventually she sought and obtained a peace bond. [ 9 ] Mr. Nickerson’s behaviour continued. He became very obsessive over S.L. According to Mr. Nickerson, at one point she did go to his apartment and they had sexual relations. He was very manipulative in gaining her sympathies and to have her return to him. He spoke of suicide but when the police responded it appeared to be a hoax. His behaviour was focussed on gaining S.L.’s attention. It continued to escalate.

He continued to attempt to contact her through texting and emails despite her efforts to avoid him. In her statement to the police she said, “I knew something was going to happen, I didn’t know what”. Meanwhile, Mr. Nickerson planned to confront S. over her apparent rejection of him. He quit his job and planned to attack her in her own home. He wrote a letter prior to the offences. Some excerpts from that letter follow: Tomorrow, I might hurt [S], not on purpose exactly.

I am going to go to her home, wait for her to come home at lunch, subdue her, then I will hold her hand while my life drains out. … … [S]: Killing myself is for you … but this time for your safety. I’ve looked inside of me … and I see exactly how I felt about [S.L. – ([…])] about to happen to you. I’m a good person with evil thoughts. I will rape you, I will hurt you if you don’t comply. You rejected me so I feel the need to dominate you. When I do that to you, you won’t love me anymore… the little bit of you that is left to love me. You didn’t deserve any of this, you deserve happiness like everyone but me.

The choice came to me like this when I started to envision dominating you. I need to stop you from getting hurt. It doesn’t matter how it came about… just please remember that I did this for the right reason.

[ 10 ] On February 29, 2012 Mr. Nickerson went to S.L.’s home. He let himself in and waited for her. However, her mother M.L. arrived first. [ 11 ] When she entered the home, Mr. Nickerson rushed her and blocked the entrance. He took her upstairs where he violently sexually assaulted her by sodomizing her and raping her vaginally twice and forcing her to perform oral sex on him. His intent was to dominate and control her and to demean and belittle her. In his statement to the police he said in part, “… and, I demeaned her in every way I could think of…”. [ 12 ] He bound her feet and hands with duct tape.

He compared her sexually to her daughter. His clear intent was to degrade, demean and belittle her. He then waited for the second victim, S.L., to arrive. He grabbed a fake gun and planned, if necessary, to provoke the police into shooting him if his plans to commit suicide failed. [ 13 ] When S.L. arrived he grabbed her by the throat and bound her as well with duct tape. He told her “today two of us are going to die and one will live”. [ 14 ] Throughout, he had a utility knife on his belt which he used at times to cut the duct tape. Armed with this knife he forced both women into a vehicle.

At one point he forced S.L. to perform oral sex and ejaculated in her mouth. He also raped her anally and vaginally. Again, his intent was to demean and degrade S.L. He told police he chose oral and anal sex because “I knew she hated it”. [ 15 ] At different points he threatened the women with the knife to force their S.L.’s sexual compliance. As events unfolded Mr. Nickerson’s plan vacillated between killing himself and having the victims witness this to killing one or both of the victims.

He drove to an isolated wooded area in Yarmouth County before heading towards the Annapolis Valley. [ 16 ] Throughout this time in the vehicle he continued to sexually assault S.L. He forced her to perform oral sex on him continuously. He told the police “I told her to masturbate. I wanted her to feel belittled. Like how she felt meant nothing to me”. [ 17 ] Mr. Nickerson exited the highway at New Minas and while travelling down the access road the victims made their attempt to escape. They attacked Mr. Nickerson and jumped from the car. Mr.

Nickerson then accelerated through the intersection, colliding with other vehicles. He then fled the scene and cut himself several times before being arrested. CHARACTERIZATION OF THE OFFENCES [ 18 ] In terms of the gravity of the offence there can be no doubt the conduct of Mr. Nickerson falls at the extreme high end of the scale of seriousness of these types of offences. Mr. Nickerson’s conduct included every imaginable sexual interference and invasion of these women’s sexual integrity. His conduct demeaned and belittled them, as was his intent.

His conduct included threats of physical harm and death. [ 19 ] Both women suffered psychological and emotional scars, understandably, from these offences, which is documented in their Victim Impact Statements. Any person standing in the shoes of these victims would have reasonably felt that they were going to die, in my opinion. I can only conclude that this was an extremely terrifying experience for both women, not only because of their fear of dying, but the emotional degradation they were subjected to by Mr. Nickerson’s actions. [ 20 ] Mr.

Nickerson’s actions were compulsive and obsessive, but at the same time planned and deliberate. His degree of responsibility and moral culpability and blameworthiness is high. I will comment more on Mr. Nickerson’s behavior below. RECORD AND UNDERLYING FACTS OF PRIOR OFFENCES

[ 21 ] The Crown relies on the following record: Offence Date Offence Description Sentence Date Sentence 1994 4(1) NCA (2 counts) Trafficking in a Narcotic Jan. 24/96 3 mo. Custody July 2/03 266(

b) Assault (R.K.) June 22/04 Suspended sentence and probation 1 yr. July 15/03 145(3) Fail to comply with recognizance Aug. 11/04 Fine $300.00 June 7/05 267(b) 279(1.1)(a) 271(1) Assault causing bodily harm Kidnapping Sexual Assault ([…]) June 5/06 2 years 5 yrs. Concurrent 5 yrs. Concurrent (2 yr. remand credit given) [ 22 ] In particular the Crown points to two events in 2003/4 and 2005. The circumstances of each are included in a Statement of Admissions filed in this proceeding. A narrative of both incidences is also included in Dr.

Theriault’s report at page eight and nine, although he refers to the first incident occurring in 2003, whereas the admission states July 2004. Mr. Nickerson’s record shows the offence occurring in July 2003 and the sentence imposed in June 2004. It appears this first incident happened in July 2003. [ 23 ] In the first incident Mr. Nickerson and the victim had been in a relationship for four months before the relationship ended at the victim’s instigation. After Mr.

Nickerson was informed of this he attended the victim’s residence uninvited and entered her home and followed her to outside her residence and grabbed and choked her, during which she was in and out of consciousness. He was clearly responding to the victim’s rejection of him. At some point he stopped and retrieved a phone from a residence and told her to call the police. Mr. Nickerson received a suspended sentence and one years’ probation for this offence. [ 24 ] The second event was much more serious. Again, Mr. Nickerson confronted […]. This time he entered the home of […].

He was armed with a rifle and at one point a knife. The victim’s mother was able to escape. Mr. Nickerson broke down the door of a room where the victim was hiding and assaulted her by choking and punching her in the head and stomach. He forced her into the woods, making an effort to avoid detection. [ 25 ] He forced her to remove her clothes and used a knife to cut her shirt and bra. He raped her. After ejaculating in her he continued through the woods where he again sexually assaulted her by attempting anal intercourse and then vaginally raping her a second time.

Eventually they made their way to a ranch where the victim convinced Mr. Nickerson to give up the knife and gun and he turned himself in to the police. Mr. Nickerson kept the victim in the woods walking for approximately eight hours where she suffered a broken jaw, swollen left cheek, swollen and cut right eye and bruising to the left side of her neck. Mr. Nickerson was sentenced to five years in federal custody for this offence.

THE LAW LEGISLATIVE SCHEME [ 26 ] The applicable legislative provisions are set out s. 753 et. seq . of the Criminal Code , last amended in 2008. [ 27 ] The applicable provisions follow: 753.

(1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the

offender to be a dangerous offender if it is satisfied (

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

a) of the definition of that expression in

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

i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or (iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender's behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; or (

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

b) of the definition of that expression in

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

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

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

(4) If the court finds an offender to be a dangerous offender, it shall (

a) impose a sentence of detention in a penitentiary for an indeterminate period; (

b) impose a sentence for the offence for which the offender has been convicted -- which must be a minimum punishment of imprisonment for a term of two years -- and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or (

c) impose a sentence for the offence for which the offender has been convicted.

(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(

b) or (

c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. [ 28 ] The Crown does not reply on s.753(1.1). [ 29 ] Briefly, the legislation sets out four pathways or sets of criteria which the Crown can prove beyond a reasonable doubt to have an offender declared a Dangerous Offender.

If the Court is so satisfied, an indeterminate sentence must be imposed unless the Court is satisfied that there is a “reasonable expectation that a lesser measure will adequately protect the public against the commission by the offender of murder or a serious personal injury offence”. A lesser measure includes a determinate sentence together with a ten year supervision order or a straight determinate sentence.

PURPOSE AND GENERAL PRINCIPLES OF THE DANGEROUS OFFENDER LEGISLATION [30] The fundamental purpose of the dangerous offender provisions is to protect the public – see R v Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357. The specific object is to protect society from a person who has been convicted of a serious personal injuryoffence and has shown a propensity for violent crimes – see R v L. (B.R.) (MB KB), [1987] M.J. No. 263 (Q.B.). Theaim of the dangerous offender legislation is not punishment, but the prevention of future violence – R v D.L.S. 2000 BCSC 40 ,[2000] B.C.J.

No. 47 (S.C.). [31] In R v Szostak 2014 ONCA 15, Rosenberg J.A. clearly and succinctly outlines the evolution of dangerous offender legislation inCanada from 1947. He describes the modern legislation in 1977 and the amendments of 1997 and 2008 and points out that thejurisprudence must be viewed in the context of the legislation existing at the time of those decisions. [32] Before 1997, the Court had discretion in declaring an offender as dangerous even if they met the statutory requirements as wellas discretion as to whether the sentence should be indeterminate.

In 1997 the Long Term Offender designation was introduced. TheCourt’s discretion was then limited to determining whether an offender should be declared dangerous. The Court had the discretion tofind an offender a “Long Term Offender” if there was “a reasonable possibility of eventual control of the [offender’s] risk in thecommunity”. If the Court found an offender to be a Dangerous Offender, an indeterminate sentence was mandatory. [33] In 2008, the Court’s discretion shifted to the sentencing stage.

Accordingly, if an offender meets the criteria for a DangerousOffender there is no discretion in the Court to declare otherwise. The discretion is now shifted to the sentencing stage. There the Court isable to impose either a determinate sentence with or without a long-term supervision order or the Court can impose an indeterminatesentence which is presumptively the option unless a lesser measure can be expected to adequately protect the public.

This latter provisionis discussed in detail below. [34] As Justice Rosenberg points out the changing emphasis in the legislation means that treatment of the offender is not an issue atthe Dangerous Offender stage. At para. 36 of Szostak he says: It is my view that the possibility of successful treatment is of limited application in determining whether the person is a dangerousoffender. The possibility of successful treatment is significant in choosing the appropriate disposition. [35] Further he adds that “intractability” is not required to be shown by the Crown at this first stage.

At para. 52 he says: In my view, any doubt that intractability is not a necessary element to find a person to be a dangerous offender has been removed by the2008 amendments. This legislation removes the discretion that existed under the 1997 legislation not to find a person to be a dangerousoffender even though the person came within the definition in s. 753(1).

That discretion has been replaced by a highly structureddiscretion in s. 753(4) and (4.1). [36] The principles of sentencing – particularly the principles of proportionality and restraint apply including the application ofGladue, infra and Ipeelee, infra in Dangerous Offender applications, but play a more significant role at the sentencing stage. In R vWarawa 2011 ABCA 294 at para 40 the Court explains: The 2008 Amendments create a high degree of rigidity in sentencing.

Parliament has clearly placed the protection of the public ahead ofany other sentencing principle and has greatly circumscribed judicial discretion. However, in my view, the surrounding context of thestatements by Parliament of the fundamental principles of sentencing found in sections 718, 718.1 and 718.2 may be relevant even at thestage of determining whether to impose an indeterminate sentence. The circumstances of an aboriginal offender were considered inassessing whether a lesser measure would adequately protect the public in R. v.

Kudlak, 2011 NWTSC 29at para 106, [2011] NWTJ No37. [37] The Dangerous Offender legislation is designed to target a small number of offenders whose threat to the safety of thecommunity is such that they should be subject to extensive restrictions on their liberty to protect the community’s safety. The 2008amendments appear to widen this “small” group of offenders. In R v Paxton, Justice S.L. Martin comments:

… these latest amendments have made the dangerous offender designation and an indeterminate sentence more easily available. As the terms of the designation have been widened and the designation was made mandatory when the statutory criteria are met, it is clear Parliament intended these provisions to have a wider scope. Thus, while the group may remain small relative to other offenders, it is likely that a greater number of offenders who pose a future threat to the physical and mental well-being of the public will likely fall within the ambit of the new provision.

These dicta nevertheless continue to provide the valuable caution that, even in the presence of particular designations, judicial restraint is an important guiding principle in all sentencing matters. [ 38 ] The onus of proof is on the Crown and the standard of proof is beyond a reasonable doubt. [ 39 ] Finally, no adverse inference can be made against the offender for failing to participate in any testing or assessment analysis or as in this case the failure of the Forensic Unit to interview Mr. Nickerson or Mr.

Nickerson’s refusal to be interviewed thereafter. [ 40 ] I will discuss in more detail the principles and jurisprudence regarding the imposition of sentence under s.753(4) below when addressing that issue. LEGISLATIVE REQUIREMENTS – WHAT THE CROWN NEEDS TO PROVE [ 41 ] As I indicated above, the Crown relies on all four pathways provided in s. 753(1)(a)(

i) to (iii) and (

b) of the Criminal Code . The Crown declined to indicate which subsection it was primarily relying upon or which subsection in which its’ strongest case existed. It suggested that the evidence supports a finding that Mr. Nickerson is a dangerous offender under all subsections equally. In other words, the Crown’s application, it is argued, is equally strong under all four subsections. [ 42 ] Accordingly, I will refer to each subsection, although a finding in favour of the Crown’s position on only one is sufficient to find Mr. Nickerson a dangerous offender. [ 43 ] For the three avenues of application under s. 753(1)(

a) the Crown must establish that Mr. Nickerson has been convicted of a serious personal injury offence described in s. 752 (

a) of the Criminal Code . The Definition of “Serious Personal Injury Offence” is as follows: “serious personal injury offence” means (

a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving (

i) the use or attempted use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person, and for which the offender may be sentenced to imprisonment for ten years or more, or (

b) an offence or attempt to commit an offence mentioned in

section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault). [ 44 ] S. 753(1)(

a) references the definition’s (

a) sub-paragraph. S.753(1)(

b) references sub-paragraph (b). [ 45 ] There is no issue that the offences under ss. 279, 272, 348 and s. 159 constitute serious personal injury offences under sub-

paragraph (a). The defence has conceded this. Mr. Nickerson has pled guilty and been convicted of these offences [ 46 ] Under s. 753(1)(

a) the Crown must also show that: 1. Mr. Nickerson constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing: (

i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or (iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; [ 47 ] I will deal with each of these subsections individually, although they do share some common elements.

The Crown has very thoroughly and effectively set out the elements to be proven and explains the corresponding burdens in its brief. Defence, has agreed with the Crown’s position as stated and no issue appears to be present. [ 48 ] In each incident the Crown must prove Mr. Nickerson constitutes a threat to the life, safety or physical or mental well-being of others persons, beyond a reasonable doubt. This must be based on evidence which establishes the criteria I outline below – “patterns of repetitive, persistently aggressive behaviour” or an offence of a “brutal nature”.

In the end the Court must be satisfied that this evidence proves beyond a reasonable doubt that Mr. Nickerson constitutes such a threat. [ 49 ] Here, the Crown relies on alleged patterned behaviour of Mr. Nickerson – alleged repetitive behaviour and alleged persistent aggressive behaviour as constituting the “threat”. Therefore, in my opinion, it would be appropriate to explore the meaning of these terms in this context and how they establish a “threat”.

In my opinion, this is no better explained than in R v Neve, 1999 ABCA 206 and while the discussion in that case is several paragraphs it is worth repeating here: 101 To appreciate the complexity of the issues a sentencing judge faces at this second threshold - assessing whether the offender constitutes a threat of the kind specified under s. 753 - a review of the various stages in the analysis is vital. Without conceptual clarity, one can easily fall into reversible error by losing sight of what may be weighed, what must be weighed and what cannot be weighed at each stage, and for what purposes.

What Does It Take to Find an Offender a Threat Under s. 753(a)? 102 What then does s. 753(

a) require on the threat issue? The core finding which the judge must make at this stage is whether the offender constitutes a threat to the life, safety or physical or mental well-being of other persons as defined under s. 753(a). Finding someone to be a threat is, in essence, a present determination that an offender will continue to be dangerous in the future, past the date on which he or she would ordinarily have been released from prison for their most recent crime. How is that threat to be determined? Whatever else may be placed on the threat scale, this much is clear.

No threat can be found without proof of past behaviour which meets at least one of the three separate thresholds under ss. 753(a)(i),(ii) or (iii). If any one is met, then the judge is able to go on and determine whether the offender is, based on that evidence, a threat to the life, safety or well-being of others as described in s. 753(a). If none is met,

then the judge cannot find the person to be a "threat" under s. 753(a). 103 While these two steps - whether the Crown has proven that the offender's past conduct meets one of the specified thresholds and whether the offender constitutes a threat of the type contemplated - are linked, they are nevertheless quite separate. They are linked in the sense that the court cannot make a determination that an offender constitutes a threat in the manner specified in s. 753(

a) except on the basis of evidence that meets at least one of the specified behaviour thresholds. However, they are separate in that even if the Crown proves that one of the thresholds has been met, the court must then go on to consider whether, in light of that evidence, the offender constitutes a threat to the life, safety, or physical or mental well-being of others. 104 What this means is that a finding that one of the past conduct thresholds has been met does not automatically and inevitably lead to the finding that the offender is a threat.

As will be evident from the various categories of threshold requirements, it will, depending on which set of requirements the Crown has chosen to prove, be relatively easier or harder to satisfy the court that the offender, based on that behaviour, constitutes a threat of the kind contemplated in s. 753(a). 105 What this also means is that a threat finding cannot be made in the absence of proof of past conduct falling within one of the specified thresholds.

While we have spoken of this process as two steps, we realize that the way in which the sentencing judge approaches this part of the analysis may not involve bright line distinctions between the pattern analysis, on the one hand, and the consequential threat analysis, on the other. However, no matter how truncated the reasoning may be, and whether expressed or not, what is critical is that the sentencing judge be alive to the need to ensure that one of the past conduct thresholds has been met on the evidence. Pattern of Behaviour Under ss. 753(a)(

i) or (ii) 106 The starting point for the threat evaluation therefore is past conduct. Only two of the three thresholds under s. 753(a), that is ss. (

i) and (ii), have any possible application to this case. In general, both require a pattern of behaviour (described differently in each) in respect of which the predicate offence must form a part. Both set out in precise detail the criteria which must be met if the Crown is to establish that the offender's conduct falls within one of the proscribed patterns of past behaviour. 107 What does it take for the Crown to prove the required patterns of behaviour under ss. 753(a)(

i) and (ii)? While "pattern" is not defined in the Code, what is defined in each of ss. 753(a)(

i) and (ii) are the various components instrumental in creating the pattern. If the Crown fails to prove one or more of the required elements, then the proscribed pattern has not been made out. Under s. 753(a)(i), the elements are the following: 1. A pattern of repetitive behaviour; 2. The predicate offence must form part of that pattern; 3. That pattern must show a failure by the offender to restrain his or her behaviour in the past; and 4.

That pattern must show a likelihood of death, injury or severe psychological damage to other persons through failure to restrain his or her behaviour in the future. 108 Under s. 753(a)(ii), the required elements are these: 1. A pattern of persistent aggressive behaviour; 2. The predicate offence must form part of that pattern; and 3. That pattern must show a substantial degree of indifference by the offender respecting the reasonably foreseeable consequences of his or her behaviour. 109 What do these sections require in assessing an offender's past conduct?

First, the type of past behaviour encompassed by these sections is criminal behaviour since the predicate offence, a criminal one by definition, must form part of the pattern of conduct. The dangerous offender legislation is directed at those who hurt people through criminal, as opposed to simply anti-social, conduct. The latter cannot be the foundation for a dangerous offender application.

110 This takes us to the second point: the quality of the past behaviour. Does all criminal behaviour form part of the pattern? In ourview, it does not. We read s. 753(

a) as requiring that the court be satisfied on two points: (

a) that the predicate offence is part of a patternof behaviour which has involved violent, aggressive or brutal conduct; and (

b) that it is likely that this pattern of conduct will continueand will lead to conduct endangering the life, safety or physical well-being of others: see Lyons, supra. Since a predicate offence under s.753(

a) must be a "serious personal injury offence" (meaning that it itself must meet either a violence or endangerment requirement unders. 752(a)), it follows logically that the past behaviour must also have involved some degree of violence or attempted violence orendangerment or likely endangerment (whether more or less serious than the predicate offence). Otherwise, the predicate offence wouldnot be part of that pattern. 111 Third, repetitive behaviour under s. 753(a)(

i) and persistent aggressive behaviour under s. 753(a)(ii) can be established on twodifferent bases. [Persistent in this context has been equated with repetitive: Yanoshewski, supra.] The first is where there are similaritiesin terms of the kind of offences; the second where the offences themselves are not similar in kind, but in result, in terms of the degree ofviolence or aggression inflicted on the victims. Either will do. Thus, the mere fact that an offender commits a variety of crimes does notmean that no pattern exists.

There is no requirement that the past criminal actions all be of the same or similar form, order orarrangement; though if this has occurred, it may well suffice. 112 As explained by Lambert, J.A. in R. v. Dow, 1999 BCCA 177 , [1999] B.C.J.

No. 569 at para. 24 (C.A.), online: QL(BCJ) in reference to s. 753(a)(i): In short, the significance and the relevance of common elements of the pattern must be determined by whether they tend to show first,repetitive behaviour, second, that there has been a failure in each case to restrain the behaviour, and third, that there has been injury toother persons arising from that failure. If any of those three elements is missing, then there may be a pattern but it will not be a relevantpattern. But if all three are present then the essential elements of a relevant pattern are revealed.

The one qualification we would add to these comments is that it is not necessary that the past conduct have led to actual injury.Attempted serious violence and likely serious endangerment of life, safety or physical well-being or severe psychological harm may wellbe adequate. 113 Because the pattern of past behaviour must be repetitive (s. 753(a)(i)) or persistent (s. 753(a)(ii)), evidence of one episode ofviolence or aggression will not suffice: Lyons, supra. This does not mean that it will always be necessary that the offender have a lengthyhistory of violence or aggression. To the contrary.

Depending on the facts, a pattern sufficient to form the basis for predicting futurebehaviour which threatens others may be found on very few such incidents. [Indeed, under s. 753(a)(iii), which is not relevant here, thereis no need for a pattern; one brutal attack may be sufficient.] Generally, however, in order to meet the requirements of a pattern, thefewer the incidents, the more similar they must be: Langevin, supra. We do not suggest that the offences must be of the same kind, thatis, for example, a number of robberies.

Similarity, as noted, can be found not only in the types of offences but also in the degree ofviolence or aggression threatened or inflicted on the victims. This explains why the requirement for similarity in terms of kinds ofoffences is not crucial when the incidents of serious violence and aggression are more numerous: R. v.

Jones (J.F.) (1993), 63 O.A.C.317 (C.A.). 114 Moving from the behavioural component of the pattern contemplated under s. 753(a)(i), we turn to the lack of restraint element.To qualify as part of the pattern, the impugned conduct must show that the offender has failed to restrain his or her behaviour in the past(and that this has led to death, injury or severe psychological damage or at least a likelihood of this harm) and that there exists alikelihood of causing death, injury or severe psychological damage through a failure to restrain that behaviour in the future.

Likelihood,in this context, means more than simply a possibility. At the very least, it means more probable than not. [We note that in Lyons, supraat 338, the Court used the "very likely" formulation when dealing with this issue, but in other cases, Jones, supra, and Currie, supra, itused the term "likelihood".] 115 Under s. 753(a)(ii), the persistent aggressive conduct must show a substantial degree of indifference by the offender with respectto the reasonably foreseeable consequences to others of that behaviour. We agree with the sentencing judge that this

section should beread as including a requirement that the Crown prove beyond a reasonable doubt that the evidence discloses a likelihood that the type ofaggressive behaviour described will continue in the future. 116 There is another dimension to the offender's conduct which merits special emphasis. The net effect of the threshold requirementsunder ss. 753(a)(

i) and (ii) is that not only is the sentencing judge to consider whether the past conduct is likely to continue. To satisfythe pattern requirements, the conduct must also demonstrate a relatively high level of intractability. As La Forest, J. confirmed in Lyons,supra at 338:

Also explicit in one form or another in each subparagraph of [s. 753] is the requirement that the court must be satisfied that the pattern of conduct is substantially or pathologically intractable . [Emphasis added.] 117 This reflects Parliament's intention that not only must the offender have demonstrated a commitment to serious violence or endangerment in the past; the reasons for that behaviour should militate against any reasonable prospect for meaningful change in the future.

It is this combination - violence and the likely continuation of that conduct - which, taken together, justify the finding that this offender will likely pose a threat in the future. 118 Given these various requirements under s. 753(a), it is easy to understand why the context in which an offender committed past criminal conduct will be relevant to this part of the analysis. Without understanding that context, it would not be possible for a judge to make an informed, reliable assessment on whether the offender's past behaviour will be likely to lead to harm in the future.

After all, whether something is likely to be repeated in the future is linked not only to what happened in the past but why it happened.

This being so, it will be evident that if the analysis of past behaviour is undertaken without reference to the surrounding circumstances, this can lead to an undermining of a judge's conclusion on two different levels - first, in terms of assessing which past conduct goes on the pattern scale; and second, in assessing the likelihood of that behaviour continuing in the future as a result of the offender's failure to restrain or substantial indifference. 119 In essence, the import of these requirements is that the evidence must show a pattern of repetitive violent behaviour or persistent aggressive behaviour by the offender, including the predicate offence, and from that behaviour, it must be possible to conclude that the offender represents a serious risk to others.

As noted, the dangerous offender provisions are not designed to remove all recidivists from society. That is one of the reasons why Parliament has prescribed that before someone can be found to be a threat, the court must first find a pattern of conduct based on past behaviour which leads to the conclusion that serious harm will result to the public from the release of the offender into the community. 120 In

summary, in assessing whether the pattern threshold has been crossed under either ss. 753(a)(

i) or (ii), it is essential that the judge be alive to the strict requirements of the Code and whether the proscribed pattern has been proven. [ 50 ] It must be remembered that in R v Neve , supra the Court was considering the legislation prior to 2008 – a mixture of the 1977 legislation and the 1997 legislation and before the shift in discretion to the sentencing stage.

Therefore the Court’s reference to “intractability” at this stage has to be placed in context especially given what Justice Rosenberg says in Szostak . [ 51 ] Let me deal then with each subsection: S. 753(1)(a)(i) – PATTERN OF REPETITIVE BEHAVIOUR [ 52 ] The Crown must establish beyond a reasonable doubt that based on evidence (

a) showing a pattern of repetitive behaviour, including the predicate offences, (

b) the pattern of repetitive behaviour shows a failure to restrain behaviour, and (

c) there is a likelihood of causing death or injury to other persons or inflicting severe psychological damage on other persons through a failure in the future to restrain his behaviour. [ 53 ] The Crown need not prove the offender will re-offend as indicated, but only that there is a likelihood of such, although the “likelihood” needs to be proven beyond a reasonable doubt. The “pattern” of repetitive behaviour can arise with only one prior conviction and is not solely dependent on the number of offences, but also on the degree or similarity of prior behaviour. However, if the number of prior offences is low the corresponding similarity must be greater.

[54] The similarities may relate to the kind of offences, but may also be the result of the offences in terms of their degree ofviolence or aggression – see R v Neve, supra. S. 753(1)(a)(ii) – PATTERN OF PERSISTENT AGGRESSIVE BEHAVIOUR [55] Here the Crown must prove beyond a reasonable doubt, (

i) A pattern of persistent aggressive behaviour of which the predicate offences forms a part; (ii) A substantial degree of indifference to the reasonably foreseeable consequences to other persons of his behaviour. Here the words “in the future” contained in s. 753(1)(a)(

i) are not present although it does contain references to reasonably foreseeableconsequences. Persistence has been equated in this context with repetitive; again, see R. v. Neve, supra at para. 111. S. 753(1)(a)(iii) – OFFENCE OF BRUTAL NATURE [56] Here the Crown must establish beyond a reasonable doubt: (

i) That the behaviour of Mr. Nickerson associated with the offence for which he was convicted is of a brutal nature, and (ii) The brutal nature is such that it compels the conclusion that his behaviour, in the future, is unlikely to be inhibited by normalstandards of behavioural restraint. “Brutal nature” does not require “stark horror”. Conduct which is coarse, savage and cruel and which is capable of inflicting severepsychological damage on a victim is sufficiently “brutal” to meet the test – see R v Langevin [1984] 11 CCC (3d) 356 (Ont. C.A.). [57] In each of the ss. 753(1)(a)(

i) to (iii) the evidence must establish that Mr. Nickerson constitutes a threat to the life, safety orphysical or mental well-being of other persons. In my view, “threat” in this context connotes “risk”. Risk is comprised of twocomponents – probability and consequences of behaviour. For example, a person who has a high probability of committing acts whichare unlikely to have harmful consequences may not pose a threat, whereas even a relatively low probability of future conduct which hasan extremely devastating impact may constitute a “threat”.

That balance between probability and harm is incorporated in each of the setsof criteria in s.753(1)(a); however the risk needs to be explored in individual cases. Therefore even if Mr. Nickerson’s conduct satisfiesthe criteria in each of the sets of criteria in s.753(1)(a), the Court still needs to determine whether based on that conduct Mr. Nickerson constitutes a “threat”. S. 753(1)(B) – FAILURE TO CONTROL SEXUAL IMPULSES [58] This

section is distinct from ss. (a). Here the Crown must prove beyond a reasonable doubt the following: (

i) That Mr. Nickerson’s committed a serious Personal Injury Offences as defined in sub-paragraph (b) – see my para. 43 above,and (ii) That Mr. Nickerson’s conduct, including that involving the offence for which he has been convicted, has shown a failure tocontrol his sexual impulses, and (iii) A likelihood of causing injury, pain or other evil to other persons through his failure in the future to control his sexualimpulses. Again, the Court need not be satisfied that Mr. Nickerson will cause injury, pain or other evil to persons in the future, simply that there isa likelihood of such.

This assessment is based on his conduct up to the time of the hearing. It is past conduct which must be taken intoaccount. The determination is based on the past conduct, not on future treatment – R v Carleton (SCC), [1983], 2

S.C.R. 58, affirming 1981 ABCA 220 , 69 C.C.C. (2d) 1 (Alta. C.A.). [59] It should be noted that under this sub-section the conduct, if satisfying the criteria set out, does not need to constitute a “threat”in the same way as is set out in s.753(1)(a). Here the reference is to the likelihood of injury in the future. PARTIES’ POSITIONS [60] As indicated above, the Crown relies on all four subsections described above. Particularly, it argues that Mr.

Nickerson’sconduct and circumstances meet the criteria set out in each subsection and maintains that he should be declared a dangerous offenderunder any or all of these subsections. [61] If the Court finds Mr. Nickerson is a dangerous offender the Crown seeks an indeterminate sentence. In the event the Courtdoes not find Mr. Nickerson a dangerous offender, the Crown seeks a long-term offender declaration for Mr. Nickerson. [62] Defence argues that the Crown has not met its required burden in proving Mr. Nickerson to be a dangerous offender.

Thedefence argues that there is at least a reasonable doubt in that regard. The defence concedes Mr. Nickerson does meet the criteria to bedeclared a long-term offender and argues that a fixed or determinate sentence with a supervision order is an appropriate disposition. THE EVIDENCE [63] The following was considered by the Court in this proceeding: 1. Audio statements of the two victims, M.L. and S.L; 2. Audio statement of the offender Mr. Nickerson; 3. Dr. Theriault’s report, together with his vive voce testimony; 4.

Statements of Admission which included the factual circumstances of prior offences and the offender’s pre-offence letter; 5. Victim Impact Statements of M.L. and S.L.; 6. Pre-sentence Report outlining Mr. Nickerson’s circumstances; 7. Gladue Report concerning Mr. Nickerson; 8. Correctional Service of Canada (CSC) materials regarding long-term supervision orders. I have referred to the audio statements of both victims and the offender as well as the admissions in my description of the facts and prioroffences. It is not necessary for me to further describe these pieces of evidence.

I will briefly review the other materials. Before doing so I should note that the offender, Mr. Nickerson, did not call any evidence other than submit the materials from theCSC, which I noted above. DR. THERIAULT’S REPORT [64] Dr. Scott Theriault is a forensic psychiatrist and practices at the East Coast Forensic Hospital. He was qualified to give expertopinion evidence on the assessment and diagnosis of Axis I and II disorders and their appropriate treatment, as well as opinion evidenceon the assessment of sexual and violent offenders for the purposes of dangerous offender applications.

[ 65 ] Dr. Theriault did not interview Mr. Nickerson for the purposes of the dangerous offender assessment, as I explained above. Mr. Nickerson was invited to be interviewed after the assessment period, but declined. No adverse inference can be drawn from Mr. Nickerson’s failure to participate, nor do I draw any such inference. [ 66 ] Dr. Theriault’s report is a comprehensive 21-page document. His report is based primarily on materials received from CSC and Crown materials, which include police reports along with Victim Impact Statements as well as Mr. Nickerson’s statement. The report describes Mr.

Nickerson’s background, (including his family, educational and vocational history), any substance abuse history, Mr. Nickerson’s criminal history outside the predicate offences, and Mr. Nickerson’s institutional history while in federal custody. [ 67 ] Dr. Theriault reviews Mr Nickerson’s mental status examination and gives his diagnostic impressions. At the heart of his report is the Violent/Sexual Assessment, including the results of various standardized tests. Finally his report includes his discussion of whether there is a possibility to eventually control the risk Mr.

Nickerson’s conduct presents in the community. [ 68 ] Mr. Nickerson appears to have been a model prisoner while in the penitentiary. However, after his statutory release in 2009 he apparently violated his release conditions and his release was revoked, and he returned to prison in January 2011 until June 2011, shortly before his warrant expired. [ 69 ] While in federal prison Mr. Nickerson’s risk of violence towards a partner was determined to be high and his risk of violence towards others found to be moderate. Despite this finding no programming towards domestic violence was delivered to Mr.

Nickerson. [ 70 ] Mr. Nickerson did undergo sex offender assessments. These assessments did not include, however, a phallometric assessment, which Dr. Theriault felt would have been prudent. In 2006 Mr. Nickerson’s risk was found to be in a moderate risk range. The writer of the report is quoted by Dr.

Theriault at p. 11 in his report as follows: However, it is this writer’s opinion that this is an underestimate of his risk potential as it does not take into account how violent and calculated his offence was; additionally, he was very cool and unapologetic in his description of what he did and although he did state that he was embarrassed he did not seem to have any remorse for his actions and his affect was flat and unchanged throughout the discussion of what he had put her through.

Intellectually, he understands she was harmed but there was no change in affect or verbal acknowledgement that he sincerely felt sorry, guilty or remorseful for the prolonged and repeated violent sexual attack on […]. It was not an impulsive act but rather calculated and took place over a long period of time where he was able to become and maintain arousal and ejaculate twice and despite her obvious compromised physical condition from the beating he had lodged against her [ 71 ] In the

summary of the same report Dr. Theriault quotes the author as follows: Within relationship; however, Mr. Nickerson clearly has had great difficulty and admits that he was extremely violent towards his first girlfriend assaulting her by choking her in 2003. He stated that he continues to feel badly for this offence stating that it continues to be “always on my mind, straight up, I owed her, still do, always will. I should not have been violent”. The same amount of sympathy or concern was not evident in his discussion of […] and the sexual assault and violence he perpetrated towards her. Mr.

Nickerson admitted that he deliberately set out to rape her as he was seeking revenge for her making false accusations of such years before when they first knew each other. He indicated that he would do what she said he did. Mr. Nickerson’s affect remained very flat as he coolly acknowledged what he did to her … and said only “Now, I’m not sure what I am, if I am good or bad”. He did state that he should have considered “so many more things” and that he knew it was “wrong” but that he “lost control”. In 2009 Mr.

Nickerson was assessed as a moderate risk to reoffend generally and in 2010 while in the community he was felt to represent a low overall risk for a sexual offence. [ 72 ] After his parole was suspended he was directed to return to the Sexual Offender Maintenance Program. In addition to group sessions he did attend for individual therapy with Ms. Ruth Simmons, a counsellor with CSC in Halifax. In his report Dr. Theriault notes “ Ms. Simmons also identified in Mr. Nickerson a predominant theme of subjugation in which Mr. Nickerson puts others needs ahead of his own.

She notes in her correspondence of March 23, 2010, ‘Subjugation scheme most prominent one evidence – putting others’ needs ahead of his own (linked to low self-esteem) and then resenting them for it when they abandon or reject him’.” [ 73 ] Dr. Theriault described his own impression of Mr. Nickerson. He felt Mr. Nickerson did not suffer from any psychotic disorder,

now or in the past. In his opinion Mr. Nickerson has a severe personality disorder. He compared Mr. Nickerson’s conduct as commonly seen in the “domestic violence field”. He noted such individuals are rejection-sensitive and have substantial mood changes. Mr. Nickerson has narcissistic tendencies, although at the same time he has a “brittle and rapidly alternating sense of self-esteem”. Dr. Theriault could not make any definitive conclusion about the possibility of any sexual deviancy for Mr. Nickerson. [ 74 ] Dr. Theriault employed numerous actuarial or standard clinical judgement assessment tools.

They included the following, all of which are described in detail in his report: 1. VRAG (Violence Risk Assessment Guide), and a variation of this, the SORAG (Sex Offender Risk Assessment Guide). 2. The Static 99, or its newer version, the Static 2002-R. 3. HCR-20 (for violence risk), or the SVR-20 (for sexual violence risk) - structural clinical judgement tools based on static and dynamic factors. 4. Psychopathy Checklist – Revised (PCL-R). [ 75 ] Dr. Theriault noted Mr. Nickerson’s total score on the PCL-R placed him below the cut-off score of 30 for psychopathy. In this testimony in Court he said Mr.

Nickeson’s score was 16.5 between 16 and 17. In short, the assessment shows Mr. Nickerson is not a psychopath. He explained that it does mean that Mr. Nickerson, “has some attributes of an individual with psychopathy but not to a large or significant degree”. [ 76 ] Dr. Theriault provided, in my opinion, a very telling description of Mr. Nickerson’s conduct and behaviour. It cannot be better summarized than to quote from his report as follows: Clinically, Mr. Nickerson shows clear evidence of a personality disorder however in my opinion it does not take the form of psychopathy. Mr.

Nickerson’s characterological deficits are more consistent with that commonly seen in the domestic violence literature. Mr. Nickerson presents with marked difficulties in interpersonal relationships, particularly intimate interpersonal relationships, and with respect to these relationships he is particularly rejection sensitive. Rejection by an intimate partner produces what is commonly referred to as a “narcissistic injury” in Mr. Nickerson; that is, it represents a significant blow to his fragile self-esteem. Mr.

Nickerson in return then wards off his feelings of shattered self-esteem and self-loathing by retreating into a stance of anger and projection of blame on to the perceived offending party. This, in turn, generates strong feelings on the part of Mr. Nickerson to subdue and ultimately humiliate the person in an attempt to seek revenge and to expunge his own feelings of shame and guilt. Mr. Nickerson appears to use intellectualization as a primary defence and in this regard he often comes across as a motivated and engaged individual in psychotherapy – a process that favours individuals with high verbal skills.

However, under conditions of stress, it becomes quite apparent that Mr. Nickerson retreats into a very primitive emotional defenses over which he has little understanding and it would appear that at times of extreme stress that he is unable to successfully utilize the skills that he had previously learned during psychotherapy as a means to forestall activity on his part. He alternates between feelings of anger and revenge directed at the person that he perceives to have betrayed him and his own feelings of self-loathing. This is translated behaviorally into Mr.

Nickerson acting in a threatening or violent (including sexually violent) fashion towards others or in self-destructive actions directed towards himself. Sometimes they occur simultaneously – for example, planning to kill himself yet at the same time requiring the victims to watch – thus satisfying both his need for self destruction and his need for revenge or to hurt others who he feels have hurt him in some way. [ 77 ] Dr. Theriault’s report includes the results of other assessments I have described above, particularly, on the SORAG, Mr. Nickerson’s score placed him in the 6 of 9 ascending categories of risk.

Individuals in this group with similar scores recidivate violently at the rate of 58% over 7 years and 76% over 10 years. The SORAG predicts all episodes of violence, not just sexual. [ 78 ] Mr. Nickerson was placed in the moderate to high category on the Static 99, or the Static 99-R assessment. A five year sexual recidivism rate for such individuals is 11.4%. Mr. Nickerson would be twice as likely to reoffend sexually as the average sexual offender. [ 79 ] Finally, on the SVR-20, a guided clinical assessment instrument, Mr. Nickerson scored in a moderate category of risk for sexual offence violence. [ 80 ] Dr.

Theriault’s report continues about a reasonable possibility of eventual control of risk from Mr. Nickerson’s conduct in the community. I will discuss in detail this aspect of his report later in my analysis, after I have determined whether the Crown has established the necessary elements to declare Mr. Nickerson a dangerous offender, and later when I must consider his risk to the safety of the community. The report concludes by indicating that Mr. Nickerson shows “a pattern of violent and sexually violent behaviour”. His

risk for sexual offence recidivism is in the moderate-high category compared to other sex offenders. He shows a “failure to control his behaviour even after appropriate psychotherapeutic intervention”. He appears to intellectually have the ability to understand his behaviour; however he cannot translate that to an ability to modify his behaviour in stressful situations. He opines that this “does not prognostically suggest a good outcome for future therapeutic endeavours ”. [ 81 ] Dr. Theriault testified in Chief for the Crown and was cross examined by the Defence and answered questions from the Court.

His testimony was consistent with his report although he did comment on what expectations are for Mr. Nickerson in the future. I will return to his testimony later in my decision when reviewing the appropriate sentence for Mr. Nickerson. PRE-SENTENCE REPORT [ 82 ] Mr. Nickerson was the subject of a Pre-sentence Report prepared in September 2013 while in custody. It reviews his background, which I will discuss below. In the report the writer noted Mr. Nickerson showed no victim empathy and appeared to blame the victim S.L., in part, for the offences. [ 83 ] Mr.

Nickerson noted he had been sexually assaulted when he was younger and later when he was 14 or 15 years of age. The report is unremarkable regarding substance abuse, although he acknowledged in the late 1990s he drank to excess and has experimented with various drugs. Substance abuse does not appear to be an issue at the present time. GLADUE REPORT [ 84 ] A Gladue Report was prepared in advance of the scheduled sentencing in October of 2013 by the Mi’kmaw Legal Support Network.

The report includes very informative information about the aboriginal experience in Nova Scotia, particularly from a historical perspective. It also includes the most complete description of Mr. Nickerson’s family background of all the materials that are before the Court. [ 85 ] Mr. Nickerson is an aboriginal person. The report traces his aboriginal heritage back through his father and grandmother and her father to a Mi’kmaw man from Yarmouth County, Nova Scotia. Mr.

Nickerson grew up in B.C. well aware of his aboriginal roots but did not live on the reserve in his community, although he reports many of his friends and those he associated with were from the aboriginal community of Nuxaulk First Nation. Mr. Nickerson was conflicted around his aboriginal heritage because of his fair skin colour, hair and eyes. He felt he was not fully accepted in the aboriginal community but at the same time viewed by the white community as a native person. Mr. Nickerson maintained an interest in learning more about his aboriginal heritage throughout his adult life.

He gained his aboriginal status in 2011. The report concludes by identifying “Gladue factors” as follows: 1. That Gordon Frank Nickerson is a man of Mi’kmaq descent. 2. That there is evidence of community support and culturally appropriate measures available to address issues and circumstance. 3. That MR. NICKERSON has demonstrated a willingness to address the underlying factors that caused the incident. 4. That MR.

NICKERSON has personally experienced the adverse impact of many factors continuing to plague aboriginal communities since colonization, including: · Substance abuse; personally, in the immediate family, and among peers. · Family deterioration and separation.

· Tragedy, illness and loss within the family, community and peers. · Lack of education, resources and general family distrust of church and state. · Low income and unstable employment due to substance abuse, lack of education and resources. · Loss of identity, culture and ancestral knowledge. [ 86 ] The author of the report recommends Mr. Nickerson be referred to the Intensive Sexual Offender Program for Aboriginal Men at the Mountain Institution in British Columbia. The report does not include any prognosis or detailed assessment regarding Mr.

Nickerson’s suitability for the program or likelihood for rehabilitation. VICTIM IMPACT STATEMENTS [ 87 ] Both victims S.L. and M.L. filed Victim Impact Statements. Both describe the understandably devastating impact these offences had on them and their families. The impact was clearly long-standing, particularly for S.L., whose statement was only made in March of 2014.

For S.L. she described herself as suffering from post-traumatic stress disorder as a result of these offences, and for M.L. she describes the day-to-day impact of living with the aftermath of what was clearly an emotionally and psychologically damaging event. Clearly both women were significantly impacted by these offences. CSC MATERIALS [ 88 ] Mr. Nickerson filed as an exhibit before the Court printed materials from CSC which describe programs for the long-term supervision orders. Programming included particular treatment for sex offenders and specialized sex offender assessment.

There is also programming for violence prevention including moderate and high intensity violence prevention programming. [ 89 ] Mr. Nickerson has not been assessed for any of these programs nor is there any prognosis for what, if any, rehabilitative effect these programs would have to mitigate the risk his conduct and behavior would present to the safety of the community at the conclusion of any supervision order. OFFENDER BACKGROUND AND PROFILE [ 90 ] Mr. Nickerson was born August 27, 1976. His background is chronicled in the Pre-sentence report, Dr.

Theriault’s report and most completely in the Gladue report. [ 91 ] Mr. Nickerson was one of seven children – five step-brothers and a sister. His mother was previously married. His father moved to British Columbia in 1968 and appears to have returned to Nova Scotia but by 1974 had settled in British Columbia. Mr. Nickerson grew up in the community of Bella Coola. Some of his siblings remained in Nova Scotia. Mr. Nickerson grew up near the Nuxaulk First Nation Reserve and spent a great deal of time there with his friends. In 1991 the Nickerson family moved to Shelburne, Nova Scotia. It appears Mr.

Nickerson’s father travelled back and forth to British Columbia for employment. In 1994, while in Nova Scotia, Mr. Nickerson was convicted of trafficking in drugs and was sentenced in 1996 to three months in jail. By 2003 he was back in British Columbia. It was then that he committed an assault against his former girlfriend. [ 92 ] Mr. Nickerson lived a transient lifestyle. At the age of 15 he moved in with his brother in Port Hardy, British Columbia and then was on his own in Vancouver at age 16. At age 17 he joined the reserves and spent one year at the Canadian Forces Base in Shilloh, Manitoba.

After leaving the military he returned to Nova Scotia at the age of 19 and went to jail for trafficking in drugs, as I noted earlier. In 2004 he married […]; however they separated after only one year of marriage. In 2005 he committed a very serious violent offence, which I described above, against […] and was sentenced to a total of 5 years in federal custody.

[ 93 ] Mr. Nickerson has been described as average to above-average in intelligence, however he has limited education. He did complete Grade 12 in British Columbia while in custody. In 2010 he enrolled in the Nova Scotia Community College but left after one year. Mr. Nickerson has had numerous jobs over the years but only for short intervals. He indicated he is able to get jobs but unable to maintain them. He was working at the Home Hardware in Yarmouth shortly before these offences were committed. By all accounts Mr. Nickerson was a good worker.

He has also been described as an articulate individual with quite substantial verbal skills (see Dr. Theriault’s report, p. 9). [ 94 ] In 2011, after being paroled, Mr. Nickerson described having had the first of two relationships from January to August of 2011. This relationship ended after Family Services discovered his past and his girlfriend’s children potentially being at risk. He voluntarily ended the relationship. Later he had a relationship with another woman, who he met while attending the community college.

Eventually this woman reported him to his parole officer for driving his former girlfriend and her children home. [ 95 ] As Mr. Nickerson pointed out during the hearing of this proceeding, both of these relationships ended without incident, something Mr. Nickerson points to as rebutting any suggestion that there is a pattern of aggressive or violent behavior by him when dealing with former intimate partners. I will discuss this further below. DETERMINING WHETHER MR. NICKERSON SHOULD BE DECLARED A DANGEROUS OFFENDER [ 96 ] I described above what the Crown was required to prove.

I will analyze each of these grounds or subsections upon which the Crown relies to declare Mr. Nickerson a dangerous offender. S. 753(1)(a) [ 97 ] It is clear that the offences under s. 279(1.1) ; s. 271, s. 348 (1) (

d) and s. 159 all qualify as serious personal injury offences. Each of these offences involves the use of violence against another person and all the offences carry a sentence of ten years or more. The Crown argued that the offences under s. 266 are serious personal injury offences; however, the maximum sentence for these offences is only five years. Accordingly, Mr. Nickerson has been convicted of seven serious personal injury offences. S. 753(1)(a)(i) - HAS THERE BEEN A PATTERN OF REPETETIVE BEHAVIOUR WHICH INCLUDES THE PREDICATE OFFENCE(S)? [ 98 ] In my opinion there is simply no doubt on this issue.

The incidences in 2003/4, 2005 and the predicate offences all have remarkably similar elements. All these incidences involve Mr. Nickerson overreacting to the conflict he concluded existed between himself and his estranged spouse or intimate partners. These all included Mr. Nickerson accosting his victims at their homes and seeking “revenge” for what he perceived as rejection of himself or damage to his fragile esteem. These three incidences are remarkable in their similarity. Mr.

Nickerson argued that to determine if a “pattern” of repetitive behavior is present one has to examine his behavior in a larger context. Particularly, Mr. Nickerson points out that his behavior with intimate partners includes other incidents where his relationships with women have ended without conflict or violence. He argues that these incidences or his behavior in those relationships should be included when determining whether there is a “pattern” of behavior which shows a failure to restrain his behavior. [ 99 ] I understand Mr. Nickerson’s submission but, with respect, I cannot agree with it.

The behavior referred to is, in my opinion, the offending behavior, because in

part it requires inclusion of the predicate offences. It is whether there is sufficient offending behavior which is capable of creating a “pattern”. This does not, of course, ignore his otherwise good behavior and indeed, when examining whether there is a failure to restrain or likelihood of causing injury, his ability to behave well is a factor. However, in my opinion the subsection requires me to examine the offending behavior to see if a pattern exists which meets the criteria set out in that subsection.

I am satisfied that they do. [ 100 ] These incidences, together, show a failure to restrain his behavior, in my opinion. This is clearly demonstrated by the predicate offences. Mr. Nickerson was well aware of what he had done to […] in 2005 and yet proceeded to perpetrate the same crime upon S.L. His failure to restrain himself is obvious. His inability to restrain himself is equally apparent.

His own words to the writer of the Gladue Report make this clear – “…in the end I lack a lot of things, like purpose, direction, foresight, I have no forethought, I get to [a] point where it doesn’t matter anymore, I’m reacting to an event, …”.

[ 101 ] The description of each of these events, particularly the predicate offences suggest that Mr. Nickerson was operating under some sense of inevitability which Dr. Theriault pointed out. It seems once Mr. Nickerson reaches a certain point his conduct is completely unrestrained. This appears to occur, as it did in the past, when he feels rejected my an intimate partner and his fragile self-esteem is damaged. [ 102 ] It is quite clear, in my opinion, that given certain conditions Mr. Nickerson cannot restrain his behavior.

He points out that other relationships he has had with women have dissolved uneventfully. However, in those events it is clear that Mr. Nickerson’s behavior had not been triggered by a sense of rejection as in the each of the other cases, where he had been unrestrained in his violence against his former partners. [ 103 ] The only conclusion that one can reasonably reach is that this pattern of behavior by Mr. Nickerson shows a failure to restrain himself in that regard. I believe Dr. Theriault’s report supports this conclusion - see p. 21- para. 1 and 3 of his conclusions. While Mr.

Nickerson is capable of dissolving relationships without violence it is only when those relationships are ended on his terms, it appears, that violence does not necessarily ensue. In the events which I described above Mr. Nickerson was left, upon dissolution of the relationship, with a sense of rejection. In such instances Mr. Nickerson’s behavior becomes violent and unconstrained. It is this pattern of conduct which is the important focus here. [ 104 ] Further, in my opinion, there is a likelihood that death or injury to other persons or severe psychological harm to others will be caused through Mr.

Nickerson’s failure in the future to restrain his behavior. In my opinion, if the same conditions arose in the future – an intimate relationship ending by his partner rejection of him – the same tragic result would occur. Based on these three events in 2003/4, 2005 and the predicate offences and based on Mr. Nickerson’s profile as described by Dr. Theriault, there is simply no other conclusion to reach. The testing done by Dr. Theriault and the placement of Mr. Nickerson on the various risk of violence scales as I noted above support this conclusion. [ 105 ] The simply reality is that if Mr.

Nickerson’s fragile self-esteem is offended or damaged through rejection the likelihood of him repeating his violent behavior demonstrated now on three separate occasions on three different victims or sets of victims and in three different contexts or locations is significant. In my opinion it borders on certainty. There is no doubt that if Mr. Nickerson was in the community he would find himself involved in an intimate relationship in the future.

The likelihood of further conflict in a similar context which was present in the patterned behavior is real, in my opinion. [ 106 ] The Crown need only establish there is a likelihood of injury or psychological harm in the future. In my opinion the facts and the compelling inferences based on these facts and the materials I referred to above, including Dr. Theriault’s report, satisfy me beyond a reasonable doubt of that likelihood. [ 107 ] It is clear, therefore, that Mr.

Nickerson constitutes a threat to the life, safety or physical or mental well-being of other persons based on the evidence which I have reviewed above. That evidence establishes, as I noted, a pattern of repetitive behavior showing a failure by Mr. Nickerson to restrain himself. The evidence also establishes a likelihood of Mr. Nickerson causing death, injury or inflicting severe psychological damage to and on other persons in the future. [ 108 ] As I noted above, threat connotes risk. The risk here is that Mr. Nickerson will become involved in an intimate relationship in the future. This is very likely. As Dr.

Theriault said Mr. Nickerson goes “from zero to 60 “very quickly. Given his very fragile self-esteem it is equally likely he would find himself in a situation similar to that which he found himself in 2003, 2005 and again in 2012 – conflict with an intimate partner. In that situation the probability is substantial that he would act the same as he did in the past. The probability of the same circumstances existing in the future is significant, in my opinion. Certainly the probability is not insignficant.

In any event, the consequences resulting from such a circumstance would be catastrophic given what has happened three times in the past. As a result, Mr. Nickerson constitutes a threat to the safety of other persons. [ 109 ] In my opinion the Crown has established all of the above beyond a reasonable doubt. The defence cautions me to be restrained in coming to the conclusion that Mr. Nickerson is a dangerous offender. The defence points out that such declarations are rare and reserved for the “worst of the worst” offenders. Mr.

Nickerson argues that the pattern of conduct must be intractable, see R v Lyons , and that that has not been established here. [ 110 ] I agree that dangerous offender declarations are rare. I commented above that a finding of intractability is not essential at this stage. Although the analysis did require a determination of future risk which this offender presents to the community and in that sense it

was necessary to determine if Mr. Nickerson's personality traits are such that his patterned and brutal behavior is likely to cause harm in the future. Treatment options and the possibility of successful treatment are examined in the later stage. Having said this, Mr. Nickerson’s personality disorder and the reasonable inferences drawn from his past conduct lead to only one conclusion – if in the community Mr. Nickerson will find himself involved with a partner who will eventually injure his fragile self-esteem and Mr. Nickerson’s reaction will be unrestrained violence like he did on three other occasions.

It should be noted that Mr. Nickerson’s behavioral traits have persisted over time – from 2003 until 2012. His behavior at its core is essentially unchanged. The degree of violence has increased. At the same time these events are relatively close together given Mr. Nickerson was in custody from 2006 until 2009 and then in 2011. The first two incidences were approximately two years apart and he became involved with S.L in 2012 approximately a year after his warrant expiry. In my view this strengthens the likelihood that Mr. Nickerson will become involved in the same conduct in the future. [ 111 ] Dr.

Theriault’s report confirms this. His risk for sexual recidivism is in the moderate to high category compared to other sex offenders. He shows a failure to control his behavior even after appropriate psychotherapeutic interventions and even though he has the intellectual capacity to do so. When he is in a stressful situation his ability to modify his behavior does not exist. S. 753(1)(A)(II) – PERSISTENT AGGRESSIVE BEHAVIOUR [ 112 ] Is there evidence establishing a pattern of persistent aggressive behavior by Mr.

Nickerson showing a substantial degree of indifference respecting reasonably foreseeable consequences to others? Again, one must look at the offending behavior. The word “persistent” in this context has been equated with “repetitive” – see R v Neve , supra , although in my opinion the word “persistent” has a more entrenched connotation. The subsection does not include reference to “in the future” as did s. 753(1)(a)(i). Persistent means “proceeding in spite of opposition”, “continuously repeating”, or “lasting”, or “enduring”, “tenaciously”. [ 113 ] As I described above, Mr.

Nickerson’s conduct fits this description. His conduct was more than simply repetitive, in my opinion. In all of the occasions described above he acted in spite of obvious signs of opposition and norms of restraint. All of his conduct was beyond spontaneous. These events were planned and deliberate, but yet uncontrolled and unrestrained. In the case of the predicate offences his conduct continued in spite of pleadings to the contrary and he perpetrated his crime on a victim completely unrelated to the focus of his revenge – the victim M.L. He knew what he was doing was wrong and he persisted .

He referenced his earlier attack on […] before attacking S.L. (conduct which he went to prison for and which he knew was wrong an

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