Her Majesty the Queen - v. -, 2019 SKPC 63

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2019 SKPC 63 Date: October 28, 2019 Information: 991017521, 991017522 Location: Saskatoon Between: Her Majesty the Queen - and - Scott Harding Appearing: K. Grier For the Crown P. McDougall For the Accused DECISION ON DANGEROUS OFFENDER APPLICATION D.C.

SCOTT, J Introduction [ 1 ] On January 23, 2018, Scott Harding was convicted after a trial of the following offences: 1) wounding Luke Borson, thereby committing an aggravated assault contrary to s. 268(1) of the Criminal Code ; 2) carrying a concealed weapon, a knife, contrary to s. 90 of the Criminal Code ; 3) breaching a recognizance by failing to comply with conditions to keep the peace and be of good behavior and not possess knives outside of his residence, carry a copy of the order and produce to police, contrary to s. 145(3) of the Criminal Code .

[ 2 ] The Crown gave notice that it intended to apply under

Part XXIV of the Criminal Code , for an order declaring Mr. Harding to be a dangerous offender. Pursuant to s. 752.1, I ordered an assessment of Mr. Harding be performed by Dr. Alberto L. Choy. [ 3 ] At the hearing, the Crown called witnesses Tammy Rettger, Kathleen Bell, Khurram Ashraft, Vicki Parent, Chrystal Wigton and James Gonzo from Correctional Service Canada. Dr. Alberto L. Choy testified as the Court’s witness. The defence did not call evidence, however, at the conclusion of closing argument, Mr. Harding addressed the Court. [ 4 ] Extensive documentary evidence was presented.

Two offence binders (Ex P-5 and Ex P- 6) set out information regarding Mr. Harding’s criminal history, including pre-sentence reports [PSR] and sentencing transcripts. A binder (Ex P-7) included program and assessment reports of Correctional Service Canada from 2010 to 2016. A binder (Ex P-8) included Provincial Corrections documents from 2016 to 2018. [ 5 ] A PSR was completed and filed with the Court on May 3, 2018.

A victim impact statement by Dean Borson, father of the victim Luke Borson, was read into the record, following my ruling to redact certain portions that did not comply with s. 722 of the Criminal Code . [ 6 ] It is the Crown’s position that Mr. Harding should be declared a dangerous offender and that nothing short of an indeterminate sentence will protect the public. [ 7 ] It is the defence position that the criteria for a dangerous offender designation have not been met and that Mr. Harding is capable of leading a productive, crime-free life. The defence submits that Mr.

Harding ought to be sentenced for the offences only or alternatively designated as a long-term offender with a determinate sentence followed by long-term supervision. Predicate Offences [ 8 ] Mr. Harding is being sentenced for the offence of aggravated assault for which he was found guilty after a trial. The Court found that on June 30, 2017, Mr. Harding was present at the Northwoods Inn Motel with two individuals. They encountered the victim Luke Borson who was present with his father Dean Borson and a family friend. According to the evidence, the two groups engaged in a brief and friendly exchange.

As they passed on an exterior walkway of the motel, Mr. Harding stabbed Luke Borson in the abdomen, stating something to the effect of “here’s something to remember me by” or “how do you like me now”. Video surveillance cameras situated in the parking lot of the motel captured Mr. Harding and two others leaving the motel shortly after the incident occurred. [ 9 ] Minutes later, Mr. Harding and the two people with him were stopped in the vicinity by police who had been dispatched to the area looking for the suspects. There was no evidence to suggest that the two individuals accompanying Mr.

Harding participated in the assault. [ 10 ] At the time of his arrest, a hunting knife with an 8” to 10” blade and sheath were found tucked inside the waistband of Mr. Harding’s shorts, concealed from view. This evidence formed the basis of the conviction for carrying a concealed weapon. [ 11 ] Based upon the DNA evidence, I found that Luke Borson’s blood was on the knife seized from Mr. Harding.

[ 12 ] From the evidence it appeared that the assault was unprovoked. Mr. Harding told the PSR writer that the victim had tried to steal his belongings. He told Dr. Choy he was concerned for his personal safety at the time of the stabbing because he had been threatened by someone with an axe in the same location weeks earlier. None of this evidence was presented at the trial. [ 13 ] Mr. Harding was the subject of a recognizance with conditions that he keep the peace and be of good behaviour and that he not possess knives outside of his residence. Victim Impact [ 14 ] Following the stabbing, Mr.

Borson was taken to the hospital where he required surgery and spent five to six days recovering. The victim impact statement was completed by Dean Borson as the whereabouts of his son Luke Borson were unknown at the time of this hearing. In addition to physical scarring and residual pain, Mr. Borson reported that Luke experienced feelings of vulnerability and a loss of self-esteem for many months after the incident. Mr. Harding’s personal circumstances [ 15 ] The following information about Mr. Harding’s background is taken from the PSR and the report of Dr. Choy. [ 16 ] Mr.

Harding, who is 47 years of age and who identifies as M é tis, was born and raised in Regina, the youngest of four children. He resided in the family home in a tough neighborhood in Regina until he was 15 years old when he moved to Vancouver to reside with his sister, Rhonda Mason. According to Mr. Harding, he had a troubled upbringing. His father was a truck driver and seldom at home. His father struggled with alcohol and would become physically abusive toward Mr. Harding. At a young age, Mr. Harding became involved in shoplifting, breaking and entering and he had difficulties at school.

He reported that his father was aggressive and violent toward him for his delinquency. According to Mr. Harding, his father was not physically abusive to his siblings. [ 17 ] Although Mr. Harding was estranged from his father for years, they reconnected prior to his death in 2008. Mr. Harding reported having a close relationship with his mother. He lived with her from 2011 to 2013 while on parole and reports it was the most successful he has been in the community in years. [ 18 ] Mr. Harding was involved in an on-again, off-again, tumultuous relationship with Natasha Agdomar which commenced in 2001.

They have four daughters together, ages 6 to 14 years. According to Mr. Harding, the relationship was toxic. They abused drugs and alcohol and there was significant physical violence toward one another resulting in criminal charges for Mr. Harding. The Ministry of Social Services was involved from time to time. Mr. Harding also has a 26 year old son who resides independently in Regina. [ 19 ] Mr. Harding’s daughters reside with his sister, Ms. Mason, in Radisson on a permanent basis. Both Mr. Harding and Ms. Agdomar have full access to their children, however their visits are supervised by Ms. Mason.

While in custody, Mr. Harding has maintained phone contact with his daughters at least three times per week. Ms. Mason has brought Mr. Harding’s children to visit him in the jail. According to the PSR writer, Mr. Harding has expressed “loving sentiments” about his daughters and is interested in participating in parenting programs offered while in custody. Health

[ 20 ] Mr. Harding has never been diagnosed with a mental disorder, but he reports feelings of depression and anxiety. He believes he may be suffering from post-traumatic stress disorder, as a result of the violence within the penitentiary environment. He reports that while on remand for the predicate offence, he has been regularly meeting with a psychologist and is willing to participate in mental health assessment and treatment. [ 21 ] Mr. Harding was diagnosed with liver disease in 2010, a result of intravenous drug use, although he has not been treated.

Otherwise, he reports good physical health aside from residual back and foot pain as the result of a previous work-place injury. This limits his ability to perform labour oriented work. Substance Abuse [ 22 ] Mr. Harding reports first having consumed alcohol at the age of 10 years which progressed to regular use by the age of 12. He was heavily dependent on alcohol from the age of 12 to 36 years, consuming daily except when incarcerated. In 2008, after his children were apprehended, he completed in-patient treatment and was able to abstain until he relapsed in 2012.

He denies any further alcohol consumption since 2012. Mr. Harding first tried marijuana at age 10 years and continued until age 19, when his use of other drugs increased. He began using crack cocaine at age 15 years, increasing to the point of daily use, except while in treatment or incarcerated. Mr. Harding began using opioids after a workplace accident. He started using crystal methamphetamine in 2016. [ 23 ] Mr. Harding has experienced periods of sustained abstinence from time to time. In the late 1990s he was working steadily and did not abuse drugs for approximately two years.

After his sister’s death, he resumed heavy substance use. In 2007 he undertook rehabilitation programs and stayed mostly drug free until 2010. He had a further period of success after release from his first federal term of incarceration, when he lived with his mother. Gaps in his criminal record reflect these periods of restraint. [ 24 ] In the community, Mr. Harding attended in-patient treatment at Pine Lodge and Larson House. He became involved in the methadone program but found Suboxone to be more effective. While incarcerated, he participated in moderate and high intensity substance abuse programming.

In addressing the Court, Mr. Harding advised that while on remand on the current offences, he has been “clean” and “sober” for more than two years even though substances are widely available, and he was able to successfully discontinue methadone. [ 25 ] Mr. Harding is willing to participate in addictions treatment and programming both in and out of custody. He recognizes his substance use has been the main contributing factor to his offending behavior and that it has had a negative impact on his family. When he has been free from drugs and alcohol he has been able to lead a violence-free and crime-free lifestyle.

Mr. Harding’s family confirmed this. Training and employment [ 26 ] Mr. Harding completed a grade 9 education at school and his GED in January 2018, while on remand. He joined the workforce at a young age. He worked as a high-rise window cleaner in Saskatoon, Regina and Calgary. He also worked for an oil field construction company during which time he fell from some scaffolding resulting in two broken heels and an injured back. He began receiving short- term disability benefits but could not physically return to work when required so his benefits were terminated.

He has not worked since 2013 other than in the institution while incarcerated. He plans to seek and maintain employment upon release from custody. He has a friend who owns an auto-wreckage company where he would be able to work. Gladue factors

[ 27 ] As mentioned, Mr. Harding identifies as M é tis. He father was of Indigenous ancestry, although not registered with a First Nation. His paternal grandmother was registered to a First Nation in North Dakota. [ 28 ] Mr. Harding has never resided on a reserve and is not aware of any family members having attended residential school. He participates in cultural activities such as pipe ceremonies, sweats and engages with elders while incarcerated. [ 29 ] Mr. Harding reports having experienced racism throughout his life.

It has been difficult for him because Indigenous persons do not recognize his M é tis ancestry and non-Indigenous people treat him differently for being M é tis. [ 30 ] During his upbringing, there was discord and parental conflict in the family home and he witnessed substance abuse and family breakdown. His father was particularly abusive toward him. His family experienced poverty growing up, although they were able to meet their basic needs. [ 31 ] Mr. Harding and the peers with whom he associated began using drugs and alcohol at a very young age.

His use of substances is directly related to his significant criminal record. As a result, he has been in and out of custody for the past 25 years. His substance abuse has led to his children being apprehended. Mr. Harding recognizes that his misuse of substances has negatively affected him and his family. [ 32 ] Mr. Harding is willing to participate in addictions treatment and programming both inside and outside of custody and to work with an elder to address his substance abuse and personal issues arising from his upbringing.

His goal is to be a better father to his children and to be a positive member of his community. [ 33 ] Mr. Harding’s peer associations were a factor in his involvement with substance abuse and criminal activity. He has never been in a gang, although knows gang members. He has some positive peer contacts through meetings and programming. While on remand, Mr. Harding was involuntarily moved to Regina Correctional Centre. Just prior, he had connected with Father Andre of STR8UP. He would like further involvement with that organization. Criminal History [ 34 ] Mr.

Harding’s criminal record, attached as an appendix to this decision, consists of 56 convictions, including youth and adult. In addition to a number of violent offences, his record reflects convictions for break and enter, property offences, impaired driving and dangerous driving, trafficking in and possession of controlled substances, and non-compliance with court orders. [ 35 ] Following is a

summary of the violence-related convictions along with offence dates, circumstances and sentences, derived from the criminal record and transcripts in the offence history binders (Ex P-5 and Ex P-6). I note there is no indication that Mr. Harding’s M é tis ancestry was taken into account in any of these sentencings. Assault by threatening to use a weapon (October 19, 1992 Regina) 6 months incarceration Mr. Harding was 21 years of age at the time he pleaded guilty to the offence. The female victim was driving down a Regina street when Mr. Harding jumped in front of the vehicle.

There was a verbal altercation during which time Mr. Harding pulled out a knife. The victim told him to put the knife away, which Mr. Harding did. The victim kicked at Mr. Harding but missed him. There was then a physical altercation, but the knife was not used.

Assault (March 2, 1994) 1 month jail Mr. Harding pleaded guilty to assaulting his domestic partner Ms. Busta. He was unrepresented in court at the time. According to the sentencing transcript, Mr. Harding and the victim began arguing, she struck him first and he responded. She left the home and when she returned, the argument continued until Mr. Harding struck her mouth and stomach with his fist. Mr. Harding admitted losing control. Assault (March 4, 1994) 2 months jail Mr. Harding pleaded guilty to assaulting his domestic partner, Ms. Busta a second time.

He returned to the victim’s residence to pick up his belongings. When the complainant told him she had called the police, he pulled her hair and slapped her. Assault (August 8, 1994) 3 months jail and 18 months probation Mr. Harding and the complainant Ms. Busta had reconciled when the third incident occurred. Mr. Harding spit in the complainant’s face and pulled a necklace from her neck. Uttering threats to cause bodily harm (May 1, 2000) suspended sentence and 1 year probation The complainant, a friend and roommate of Mr. Harding’s, owed Mr. Harding some money for his mortgage payment. When Mr.

Harding went to collect, the complainant did not have the funds. The situation escalated, Mr. Harding became angry and threatened the victim. Assault (May 21, 2001) 6 months conditional sentence order and 12 months probation Mr. Harding pleaded guilty to having assaulted his domestic partner Ms. Agdomar. The complaint was made by Ms. Agdomar’s mother who indicated Mr. Harding had arrived at the home, started pushing around her daughter and punched her with a closed hand. Mr. Harding was intoxicated at the time.

Assault x 3 (August 23, 2002) 2 months jail concurrent and 18 months probation Three charges of assault led to a breach of Mr. Harding’s conditional sentence order which was terminated. Mr. Harding, who was unrepresented, pleaded guilty to assaulting Natasha Agdomar, Whitney Agdomar and Courtney Agdomar, after he awoke and believed he had been robbed by them. The Court accepted Mr. Harding’s version of events. Uttering threats (May 4, 2002) 1 year peace bond Mr. Harding agreed to enter into a peace bond in relation to Tanya Crowe. Assault with a weapon (April 20, 2003) 5 months jail Mr.

Harding pleaded guilty to assaulting Chris Huntley with a knife outside Ms. Agdomar’s apartment following an altercation with three males. According to Mr. Harding, the three males attended at Ms. Agdomar’s apartment and began beating Mr. Harding because one of the males had been seeing Ms. Agdomar and there were hard feelings. Mr. Harding went into the apartment to retrieve a knife and confronted the three males again, stabbing Mr. Huntley.

Assault causing bodily harm (June 11, 2006) 6 months jail, time served Mr. Harding pleaded guilty to assaulting his domestic partner Ms. Agdomar. He admitted to striking her several times and biting her leg, although the Crown acknowledged that the fight was not one- sided and Mr. Harding was also injured. Alcohol was a factor. The complainant advised the Crown she did not wish to proceed with the charge as they were planning to go to counselling. Uttering threat to cause death (March 19, 2007) 30 days jail and 1 year probation Mr. Harding represented himself on this charge.

He pleaded guilty to uttering a death threat to Ms. Agdomar’s mother after becoming angry over a disagreement regarding Mr. Harding’s daughter. Substance abuse was a problem for him at that time. Assault (January 10, 2008) 8 months jail Mr. Harding pleaded guilty to assaulting Ms. Agdomar after an argument, by striking her on the face numerous times with both an open and closed hand. At some point Ms. Agdomar fell to the floor. Mr. Harding and Ms. Agdomar had been drinking alcohol prior to the offence. The evidence from the preliminary hearing indicated Ms. Agdomar had come to Mr.

Harding’s residence and kicked the door open to get beer. Once the argument started, she kicked Mr. Harding, who ended up with a black eye and scratches on his face as well. Attempted Armed Robbery (April 26, 2013) 35 months jail (30 days pre-sentence custody) Mr. Harding pleaded guilty to robbing a restaurant armed with a shovel. He entered the establishment, yelled at them to give him money and slammed the shovel on the counter in front of the employee. Mr. Harding threatened to kill the employee if they touched the phone. Mr. Harding left after 15 seconds without taking anything.

He committed the crime to satisfy an outstanding drug debt. Previous Assessments of Mr. Harding [ 36 ] Pre-sentence reports dated December 21, 1989, October 14, 1991 and November 5, 1992, were prepared in relation to property offences. Mr. Harding indicated that his prime motivation for the property offences was financial gain. One early report states that Mr. Harding displayed a good attitude toward programming.

He received a jail sentence for one set of offences, a portion of which was served in a Community Training Residence, where he did well, completing his stay without violating his conditional release. [ 37 ] More recent assessments of Mr. Harding have been prepared, primarily by parole officers during Mr. Harding’s incarceration. Ms. Tammy Rettger, Mr. Harding’s Community Parole Officer, supervised him after his statutory release from the federal institution. Reports in 2016 assessed Mr.

Harding to be a high risk to public safety. [ 38 ] The CSC report of May 5, 2016 (Ex P-9) completed in relation to his transfer to Drumheller institution, indicated that although Mr. Harding had demonstrated some progress institutionally in addressing the dynamic factors which contribute to his criminal behaviour, his public safety risk remained high. Functioning in Institutions

[ 39 ] Mr. Harding has spent considerable time in both provincial and federal jails. Exhibits tendered by the Crown document Mr. Harding’s history within the institutions while incarcerated. Mr. Harding was assessed as posing a medium risk within the penitentiary. [ 40 ] Mr. Harding engaged in some institutional infractions while incarcerated. Incidents included arranging for contraband to be smuggled into the institution, taking food while working as a cook in the kitchen, having unauthorized headphones in his cell and diverting methadone. A homemade shank was found in his cell.

He was also involved in conflicts with correctional officers and inmates resulting in his being placed in segregation. [ 41 ] In April 2016, Mr. Harding was the victim of an assault at Saskatchewan Penitentiary and was placed in administrative segregation for his own safety, where he remained by choice for this reason. [ 42 ] By 2016, he was presenting himself well to staff and engaged in his correctional plan and was accordingly considered a low behavioural concern within the institution. [ 43 ] According to the Crown witnesses, Mr. Harding had some measure of institutional success.

The focus of his case plan was violence and substance abuse. Mr. Harding’s Institutional Parole Officer Vicki Parent testified she worked with Mr. Harding for 1 ½ years in 2014-2015. She saw him more often than most inmates and on a more regular basis. He was interested in his programs, jobs and education. He also sought mental health services. He regularly applied for employment opportunities within the institution. His reintegration potential was deemed to be low at that time because his history of community supervision was poor. Ms.

Parent verified that throughout his incarceration he was consistently concerned for his children. [ 44 ] Chrystal Wigton, Regional Program Manager at Correctional Services Canada testified that although she did not work with Mr. Harding she reviewed his file and noted that he had participated in the following programming during his first federal sentence: National Family Violence Program; National Substance Abuse Program and Booster program; National Substance Abuse Maintenance Program; Applied Relapse Prevention.

During his second sentence he completed the Violence Prevention Program (moderate and high intensity). Community Supervision [ 45 ] Mr. Harding has a history of non-compliance in the community. He has numerous convictions for failure to comply with undertakings, recognizances and probation orders. Two conditional sentences orders were terminated. He has been unlawfully at large. His statutory release was suspended in 2011, 2012 and 2016. While in the community, he was placed on the most intensive level of supervision. Expert’s Testimony [ 46 ] Dr. Alberto L.

Choy worked as a forensic psychiatrist at the Alberta Hospital in Edmonton Alberta, since 2004. In 2014, he took the position as

Section Chief of Forensic Psychiatry for the northern region of Alberta Health Services. He has expertise in risk assessment and risk management of violent and sexual offenders, as well as assessment and treatment of individuals with violence issues on an in-patient and out-patient basis. In this hearing, Dr. Choy was qualified as an expert to give opinion evidence in the area of assessment and treatment of violent offenders, including assessment of risk relating to violent offenders, particularly in relation to Mr. Harding.

[ 47 ] In preparing his report (Ex C-2), Dr. Choy interviewed Mr. Harding in the Saskatchewan Penitentiary for approximately four hours on July 27, 2018. Dr. Choy interviewed Mr. Harding’s mother and sister, Ms. Mason. He also had the benefit of reviewing the Crown exhibits. [ 48 ] Dr. Choy reported on Mr. Harding’s background including childhood and family, school, employment, relationships, medical, psychiatric, substance abuse, legal, institutional behavior, and mental status. He offered a conclusion regarding Mr. Harding's disorders. In addition, he provided an assessment of Mr.

Harding's risk to reoffend and the prospects for Mr. Harding’s success in the community. [ 49 ] Dr. Choy found that Mr. Harding has no diagnosable mental disorder that would require involuntary hospitalization or treatment. According to Dr. Choy, the most relevant confirmed diagnoses are severe substance use disorder (opioids, amphetamines, alcohol), and antisocial personality disorder. [ 50 ] On the Psychopathy Checklist-Revised Scale, Mr. Harding scored more heavily toward an antisocial lifestyle and social deviance as opposed to interpersonal and emotional psychopathy. According to Dr. Choy, Mr.

Harding's offending behaviour reflects an instability in relationships and impulsivity rather than manipulative or predatory psychopathy. His score placed him in the range of the average federal inmate. [ 51 ] Dr. Choy conducted both an actuarial and clinical assessment of Mr. Harding’s risk. According to Dr. Choy, the actuarial methods of risk assessment are the most accurate means of estimating likelihood of violence and criminality over the long term, although they provide an assessment of risk at a fixed point in time.

Importantly, he noted that actuarial assessments are not to be viewed as predictors, but rather estimates. [ 52 ] The clinical assessment looks at dynamic factors which are also important considerations in risk management. A dynamic factor varies temporally based upon personal or situational circumstances. These factors can provide information regarding when and how someone is more likely to reoffend, guiding decisions about the nature and type of supervision or treatment necessary to manage risk.

Clinical assessment can estimate the likelihood of recidivism but only in the short term. [ 53 ] On the clinical assessment, Mr. Harding was assessed as between moderate and high risk for violent recidivism. Treatment targets identified include: substance abuse, pattern of interpersonal aggression, tendency to use weapons, repeated cycle of violence (stress, substance use, relationships) and problems with supervision. Other important targets include peer relations, emotion control, relationship stability, impulsivity, and cognitive distortions. [ 54 ] On the actuarial assessment, Mr.

Harding’s score was in the high risk category for committing a future hands-on violent offence. Interpreted by Dr. Choy, the assessment estimated that 87% of individuals in the offender population with the same score as Mr. Harding reoffended violently within ten years of release and 13% did not. It was Dr. Choy’s view that, taking into account the dynamic assessment, Mr. Harding is “not far from being one of the 13%”. If he participates in treatment, obeys his parole officer and stays away from people who are negative influences, he will likely be one of the 13%. Dr. Choy stated Mr.

Harding does not need to do much to maintain that position. His level of risk is not so high that if he does certain things he can drop into a lower category: transcript T312, lines 16-23. [ 55 ] The composite assessment indicated Mr. Harding is considered a moderate to high risk with regard to the likelihood of reoffending violently. It was projected that Mr. Harding’s risk could be reduced to the moderate range if he attends to treatment and makes the same progress as an average offender.

[ 56 ] In spite of his success at institutional programs, Mr. Harding is at an early stage of making significant changes in his life. Dr. Choy identified the various stages of change, being pre- contemplative, contemplative, preparation, action and maintenance. He noted that with regard to substance abuse, which is a key risk factor, Mr. Harding was straddling the preparation and action stages. This means he has taken steps to engage in treatment programs and has had some success in making changes, but has also regressed at times.

He is aware of the problems which have led to his violence and has taken some steps to try to change, but he still has work to do to address his risk factors. [ 57 ] Of concern to Dr. Choy was the speed with which Mr. Harding failed in the community and the number of convictions for violating conditions while supervised, particularly if he was unable to sustain his recovery. This is an issue for future risk management. [ 58 ] However, Dr. Choy observed Mr.

Harding has been generally able to follow rules and structures of the institution, which can provide an indication of an individual’s behavior in the broader community. Dr. Choy noted that Mr. Harding’s conduct within the correctional institutions improved after 2010, although he did have some problems. He has had success with substance abuse programming and manages himself well within the institution overall. For example, Mr. Harding’s more frequent contact with an institutional parole officer was interpreted by Dr.

Choy as a positive indication that he needed and used whatever supports were available to him. [ 59 ] It was Dr. Choy’s view that for the most part, Mr. Harding has accepted responsibility for his offending behavior and expressed remorse, although at times he has minimized his own responsibility. His offence history indicates that on all but one occasion (the predicate offence) he pleaded guilty to his charges. According to Dr. Choy, acceptance of responsibility as an indicator of risk reduction cannot be viewed in isolation. It must be coupled with actions such as participation in treatment. Dr.

Choy explained that individuals are capable of making changes even when they do not accept full responsibility. [ 60 ] Aging, according to Dr. Choy, meaningfully lowers the risk for violent recidivism. Although it is difficult to uniformly calculate this, Dr. Choy noted that at the time of the assessment Mr. Harding was in his mid-40s. If he were to be released into the community in his late 40s, it was Dr. Choy's opinion that there is a reasonable possibility of eventually controlling Mr. Harding's risk in the community. [ 61 ] Personal relationships have been difficult for Mr. Harding, in particular with Ms.

Agdomar. Dr. Choy noted that much of Mr. Harding’s relationship violence was a “two -way street”, wherein Mr. Harding sustained injuries. [ 62 ] Dr. Choy heard from not only Mr. Harding, but his sister and mother, that he has maintained a close relationship with his children who are very important to him. Mr. Harding expressed what appears to be significant remorse regarding the effects of his behaviour on his children. However, when Mr. Harding becomes stressed he resorts to substance use without considering the consequences of his actions on his children. According to Dr.

Choy, these relationships are healthy for Mr. Harding and his children. Such prosocial commitments and relationships are risk lowering. [ 63 ] Dr. Choy noted that Mr. Harding appears to be a good worker. He works well and is capable of staying employed when in the community. Dr. Choy explained that the ability to maintain meaningful employment is associated with a decrease in risk for criminality and violence. Mr. Harding’s statement to the Court

[ 64 ] Mr. Harding did not testify at the hearing, but addressed the Court at its conclusion. He expressed regret for his actions and said that the dangerous offender proceedings scared him straight. In the past, he did not always consider the repercussions of his actions on his family. However, he now has a different attitude. [ 65 ] Mr. Harding continues to be in regular contact with his children, ages 14, 11, 10 and 6 years. His sister brings them to visit him in the institution and he speaks with them regularly on the telephone. [ 66 ] When addressing the Court, Mr.

Harding acknowledged that the offence for which he is being sentenced is serious with serious consequences. [ 67 ] Mr. Harding expressed a desire to be successful in the community. When asked how he would accomplish this, he stated he would have to deal with his mental health and addiction issues. While on remand, he has been meeting with a psychologist for approximately 40 minutes weekly. However, until he is sentenced, he is not eligible for any further programming. [ 68 ] Mr. Harding has been a member of Alcoholics Anonymous since his arrest on July 1, 2017.

During this time he reports having been “clean” or not using substances, even though they are widely available. He reported his urinalysis has been clear while in custody. He no longer needs methadone. He committed one institutional infraction during that time. [ 69 ] Mr. Harding recognizes the need for ongoing support in the community and is confident he can refrain from substance use and abuse going forward. [ 70 ] With regard to Ms. Agdomar, he stated “as a pair, we are toxic for each other”. He seems to understand that if he is to have success in the community she can no longer be a part of his life.

Legal Framework [ 71 ] The primary objective of the dangerous offender sentencing regime is the protection of the public.

Part XXIV of the Criminal Code sets out the criteria to be satisfied for a dangerous offender declaration. In this case, the Crown has based its application upon ss. 753(1) (a)(

i) and (ii). The relevant statutory provisions are as follows: 752. In this Part, … “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, … 753(1) On application made under this Part after an assessment report is filed under subsection 752.1(d), 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 behavior 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, … 753(4) If the court finds an offender to be a dangerous offender, it shall (

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

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

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

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

b) or (

c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

(5) If the court does not find an offender to be a dangerous offender, (

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

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

b) the court may impose sentence for the offence for which the offender has been convicted. 753.1(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that (

a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted; (

b) there is a substantial risk that the offender will reoffend; and (

c) there is a reasonable possibility of eventual control of the risk in the community. [ 72 ] The dangerous offender sentencing framework is a two-stage process: the designation as a dangerous offender (s. 753(1)) and the imposition of a penalty (s. 753(4) and (4.1)): R v Boutilier , 2017 SCC 64 , [2017] 2 SCR 936 [ Boutilier ] . If the criteria are met, the Court has no discretion but to make the designation.

However, if the designation is made, the Court does have discretion at the penalty stage. [ 73 ] Evidence of future treatment prospects is relevant at both the designation and penalty stages: Boutilier paras 42-45 . This ensures that only those offenders who pose a “tremendous future risk” are designated as dangerous facing an indeterminate sentence: Boutilier , para 46 . [ 74 ] The Crown must establish two elements beyond a reasonable doubt to obtain a designation of dangerousness as a result of violent behavior.

First, the offence for which the offender has been convicted and is being sentenced must be a “serious personal injury offence”

as defined in s. 752. Second, the offender must represent a “threat to the life, safety or physical or mental well-being of other persons”:Boutilier, paras 17, 18. [75] The Court must assess the threat posed by the offender on the basis of evidence establishing patterns of conduct as set out in s.753(a): Boutilier, paras 17, 18. In doing so, the Court must conclude that the predicate offence is part of a broader pattern of violence;that there is a high likelihood of harmful recidivism; and that the violent conduct is intractable: Boutilier, para 26 confirming R v Lyons, (SCC), [1987] 2 SCR 309 [Lyons].

Intractable conduct is behavior that the offender is unable to surmount: Boutilier,para 27. [76] If the dangerous offender criteria are not met, the Court may sentence the offender for the predicate offence or consider whether toimpose a long-term offender designation: s. 753(5); R v Montgrand, 2017 SKCA 49, 352 CCC (3d) 485 [Montgrand]. Analysis [77] The criteria for determining whether to designate a person as a dangerous offender, taken from Boutilier and as referenced in R vBallantyne, 2019 SKPC 32 at para 56, will be considered as follows. Has Mr.

Harding been convicted of a serious personal injuryoffence as described in s. 752(a)? [78] Mr. Harding has been convicted of aggravated assault contrary to s. 268(1) of the Criminal Code. It is an indictable offence,involving the use of violence against another, with a maximum sentence of 14 years in jail. He concedes that the offence meets thecriteria for “serious personal injury offence” in s. 752. Does the predicate offence form part of a pattern of violence? [79] In assessing the threat posed by Mr.

Harding, the Court must consider whether there is evidence of a pattern of repetitive behaviordemonstrating a failure to restrain and a likelihood of harmful recidivism or a pattern of persistent aggressive behavior showing asubstantial degree of indifference regarding the reasonably foreseeable consequences to others: ss. 753(1)(

i) and (ii). [80] There are two ways of identifying the pattern of behavior in this context. There must be similarities in the types of offences orsimilarities in the degree or nature of violence used or threatened: R v Knife, 2015 SKCA 82, 460 Sask R 287 [Knife]; R v Neve, 1999ABCA 206, 137 CCC (3d) 97. [81] The pattern of behavior and the predicate offence must be related and must be established on the basis of proven allegations: R vPike, 2010 BCCA 401, 260 CCC (3d) 68 [Pike]. [82] The predicate offence of aggravated assault, for which Mr.

Harding has been found guilty, forms part of a broader pattern ofviolence committed by him. Arguably the most serious, it represents a continuation of Mr. Harding’s violent offending. The aggravatedassault involved the impulsive stabbing of a stranger with a knife. The victim in this case sustained a serious injury to his abdomenrequiring surgery and convalescent hospitalization. At the time, Mr. Harding was under the influence of methamphetamine.

[83] Mr. Harding’s offence history reflects a number of repeated acts or threats of violence, some involving significant injury to others.Most of Mr. Harding’s violent offences were impulsive acts of aggression fueled by substance use. At times, a knife or other form ofweapon was present. A number of Mr. Harding’s offences involved domestic violence, while other of his violent offences were directedtoward strangers. The attempted robbery with a shovel involved a threat of violence, as did the uttering death threats offences.

A threat ofviolence is a form of violence: R v Steele, 2014 SCC 61 , [2014] 3 SCR 138 para 68. [84] Some of Mr. Harding’s offences were of a non-violent nature or did not result in significant injury. However, there is a similarity inthe type as well as the degree and nature of the violence used or threatened in many of his offences, including the aggravated assault.Therefore, a pattern of repetitive behaviour as well as a pattern of persistent aggressive behaviour has been established. [85] There have been gaps in Mr. Harding’s violent offending when he was able to manage his behaviour in the community.

Overall,though, because of his substance abuse and impulsivity, he has failed to restrain his offending behavior: s. 753(1)(a)(i). [86] I am not convinced, however, that the pattern of persistent aggressive behaviour shows a substantial degree of indifference withrespect to the foreseeable consequences to others: s. 753(1)(a)(ii). In reaching this conclusion I have considered the subjective state ofmind of Mr. Harding as well as the objective evidence at this hearing: Montgrand, para 21. [87] Indifference is not to be determined only at the time of the offence.

Rather, the point here is to identify the “truly evil personalitytype who has no compassion for others at any time”: R v George (1998), (BC CA), 126 CCC (3d) 384 (BC CA)[George] para 23. The evidence must demonstrate that the offender “had a conscious, but uncaring, awareness of causing harm toothers”: George, para 24. [88] Dr. Choy opined that whether Mr. Harding exhibited a “substantial degree of indifference” hinges, in part, on the issue of remorse.Mr. Harding has expressed his remorse, particularly with regard to the impact his offending behaviour has on his children.

He pleadedguilty to all but the predicate offence, which, according to Dr. Choy, indicates a measure of remorse. However, Dr. Choy observed thatMr. Harding is unable to utilize his remorse at the appropriate time because of his impulsivity. [89] Further, Dr. Choy concluded Mr. Harding is not a prototypical psychopath, characterized by manipulative and predatory behaviour.Rather, his offending conduct is the result of substance abuse and impulsive reaction. According to Dr.

Choy, individuals who are morepsychopathic or severely antisocial have a tendency to premeditate and use their violence as a means to an end, whereas individuals whoare prone to impulsive violence are less likely to be categorized as psychopathic. [90] I am unable to conclude that Mr. Harding’s aggressive behaviour shows a substantial degree of indifference with regard to theforeseeable consequences to others as interpreted in George and Montgrand. Even with his offence history, Mr. Harding’s attitude is notreflective of someone with a truly evil personality type with no compassion for others at any time.

Neither is it characteristic of someonewho possessed a conscious but uncaring awareness of causing harm: George. [91] I am not satisfied that Mr. Harding’s pattern of offending behavior is characterized by substantial indifference as much as byimpulsivity. Nonetheless, the Crown has established a pattern of repetitive behavior showing a failure of restraint. Is there a high likelihood of harmful recidivism? [92] The Court must consider whether the pattern of Mr. Harding’s conduct which endangers the life, safety or physical well-being of

others, is very likely to continue: Lyons, p 338. Determining if a high risk of recidivism is present requires a prospective inquiry intowhether an offender will continue to be a “real and present danger to life or limb”: Boutilier, para 35, citing Hatchwell v The Queen, (SCC), [1976] 1 SCR 39 at p. 43.

The Crown must demonstrate beyond a reasonable doubt the high likelihood ofharmful recidivism: Boutilier; R v Parfitt, 2019 SKCA 55 [Parfitt] para 65. [93] The pattern of repetitive behaviour must show a likelihood or probability that death, injury or severe psychological damage willoccur as a result of the offender’s failure in the future to restrain his behavior: Montgrand, para 10. The Court must assess whether thereis a connection or link between the predicate offence, the pattern of offending behavior and the future threat: Pike, paras 68, 80-83. [94] None of Mr.

Harding’s convictions involved offences where death resulted. However, the predicate offence involved the stabbingof the victim’s abdomen causing severe injury from which death could have ensued. The victim impact statement indicated that Mr.Borson suffered significant psychological trauma as well. During two prior offences, Mr. Harding also wielded a knife and one of thoseoffences resulted in a stabbing. Many of the domestic assaults involved some degree of injury by both parties. On one occasion, Mr.Harding was convicted of causing bodily harm to Ms.

Agdomar. [95] While, to a certain extent, the level of violence increased over time, there is not a clear trajectory. Having said that, the aggravatedassault appears to be one of the most serious of Mr. Harding’s violent offences. [96] Although somewhat subjective in nature, as Ms. Rettger testified, the assessments of Correctional Service Canada consistentlyfound Mr. Harding as a high risk to public safety. [97] According to Dr. Choy’s actuarial assessment, Mr. Harding was a high risk for committing a future violent offence. The compositeassessment indicated that Mr.

Harding was a moderate to high risk to reoffend, which could be influenced by dynamic risk factors. Whilehe is at an early stage in motivation and readiness to make sustained change, the assessments project that with appropriate treatment, hemay succeed in lowering his risk score to the moderate risk category. Further, it was Dr. Choy’s view that Mr. Harding would not have todo much to place himself in the category of offenders who did not reoffend after ten years. I recognize that these assessment tools are not designed to predict outcomes, but they are of some assistance in considering Mr.

Harding’s chances for success. [98] There are some aspects to Mr. Harding’s circumstances that would tend to mitigate his risk, such as his attempts at treatment,positive family support, his interest in work, and aging. It is clear from Dr. Choy that whether Mr. Harding continues to pose a risk willdepend upon his participation in intensive treatment going forward and his ability to integrate what he has learned. [99] Taking into account Mr.

Harding's pattern of offending, the serious nature of the predicate offence and the risk assessments, theCrown has established beyond a reasonable doubt that there is a moderate to high likelihood of Mr. Harding’s harmful recidivism in thefuture. Is Mr. Harding’s violent conduct intractable? [100] The Court must be satisfied that the pattern of conduct is substantially or pathologically intractable: Lyons, p 338, cited withapproval in Boutilier at para 26. According to Boutilier, intractability means that the offender is unable to surmount their violentconduct.

This involves a prospective assessment of risk and the viability of future treatment. Once again, the Crown is required todemonstrate beyond a reasonable doubt the intractability of the violent pattern of conduct: Parfitt, para 65.

[ 101 ] Mr. Harding's criminal history suggests that Mr. Harding has been unable to overcome his violent conduct. However, I must consider whether that would be the case going forward. [ 102 ] If Mr. Harding is to surmount his offending behaviour he will need to address his substance abuse, one of his primary risk factors. In fact, Mr. Harding has sought and successfully completed programming while incarcerated. However, Dr. Choy cautioned that Mr.

Harding’s failure when he returned to the community after doing well in programming was a “negative prognostic variable”: Transcript T315, line 32. [ 103 ] Although Mr. Harding is at an early stage of making significant changes in his life, he has progressed from pre-contemplation toward action. Dr. Choy believes that Mr. Harding has a good understanding of his risk factors and the actions he needs to take to address them. His assessment projected that Mr.

Harding would be in the moderate range if he continues to attend treatment and makes the same progress as the average offender. [ 104 ] For more than two years, while on remand, Mr. Harding has attended A.A. meetings and worked with a psychologist on a weekly basis to address his mental health concerns. He reports having abstained from substance use, even though drugs are widely available and he no longer needs methadone. These steps demonstrate a positive and willing attitude toward treatment. [ 105 ] It was Dr. Choy’s view that Mr.

Harding’s violent conduct is not the result of a psychopathy, which would have made him less amenable to treatment. Rather, Mr. Harding’s conduct is generated, in part, by impulsivity. That is not to suggest that impulsive violence does not pose a threat. It does. However, it would seem there are psychotherapeutic interventions, including medication that could assist in treating this cause of Mr. Harding’s offending behaviour: Dr. Choy’s report, p. 24. [ 106 ] There are also a number of risk mitigating factors to be considered. Mr. Harding’s mother and sister are supportive.

He has consistently maintained a positive relationship with his children. These relationships have been long-standing and there is no reason to expect that would change. Mr. Harding now appears to recognize the toxic nature of his relationship with Ms. Agdomar, which has been the source of much of his violent offending. Mr. Harding has been employed in the community and has been willing to work in the institution. Aging is also likely to reduce Mr. Harding’s risk of violence. [ 107 ] I am also mindful that there have been gaps in Mr.

Harding’s offending, when he has been capable of abstaining from substance abuse and violence, maintaining employment and engaging in positive relationships, at times for extended periods. [ 108 ] On the whole of the evidence, including the future prospects for Mr. Harding’s treatability, coupled with the risk lowering factors, I am not satisfied beyond a reasonable doubt that Mr. Harding is substantially or pathologically incapable of surmounting or overcoming his violent behaviour.

Have the criteria for dangerous offender designation been established beyond a reasonable doubt? [ 109 ] The predicate offence is a serious personal injury offence. The evidence has established that the predicate offence forms part of a pattern of repetitive behavior, showing a failure of restraint on Mr. Harding’s part. While there is a moderate to high likelihood that Mr. Harding would reoffend violently, I am not satisfied beyond a reasonable doubt that Mr. Harding is unable to surmount his violent behaviour.

[110] Accordingly, I am not satisfied beyond a reasonable doubt of the likelihood of future threat or danger that Mr. Harding poses to thelife, safety or physical well-being of other persons. The statutory criteria have not been met to warrant Mr. Harding’s designation as adangerous offender. Should Mr. Harding be designated as a long-term offenderunder s. 753.1(1)? [111]

Part XXIV allows the Court to consider designating an offender as a long-term offender if the Court finds the dangerous offendercriteria are not met: s. 753(5); see also Montgrand. In order to do so, I must find that a sentence of two years or more is appropriate forthe aggravated assault; that there is a substantial risk of Mr. Harding reoffending; and that there is a reasonable possibility of eventuallycontrolling Mr. Harding in the community: s. 753.1(1).

Although s. 753.1(1) does not expressly state that the risk must be with respect to reoffending violently, our Court of Appeal has interpreted that to bethe case: R v Piapot, 2017 SKCA 69, 355 CCC (3d) 239. [112] The Court must balance these factors, but neither party is required to meet a burden of proof. The Crown is not required toprove beyond a reasonable doubt that Mr. Harding will not eventually be manageable in the community or that there is no reasonablepossibility for eventual control of risk to the community: R v Moosomin, 2008 SKCA 169, 239 CCC (3d) 362; R v Keenatch, 2019SKPC 38 para 54.

Is a sentence of more than two years appropriate for thepredicate offence? [113] I am satisfied that a sentence of more than two years is warranted in this case. The maximum penalty for the offence ofaggravated assault is 14 years. The circumstances of the offence are serious. The assault involved the stabbing of a stranger in hisabdomen, for which no evidence or explanation was given at trial. Mr. Harding was under the influence of crystal methamphetamine atthe time. Although Mr. Harding was with two others, he was the only one to engage the victim. Mr.

Harding has a significant criminalhistory of violence which includes a previous stabbing. [114] Convictions for aggravated assault, particularly where the offender had a record for violence, typically result in sentences ofgreater than two years: see R v Moosehunter 2006 SKCA (SentDig) 29 (4 years); R v Scott 2014 SKQB 307 (3 years); R v Cullen, 2014SKQB 371 (4 years); R v MacDonald (1992), (SK CA), 97 Sask R 254 (Sask CA) (3 years); R v Keshane 2005 SKCA 18 (4 years); R vHilowie 2014 SKCA (SentDig) 13 (2 years and 6 months); R v Lonethunder 2018 SKCA (SentDig) 24 [Lonethunder] (50 months); R v Crawford 2018 SKCA (SentDig) 19 [Crawford] (4.5 years).

Is there a substantial risk that Mr. Harding will reoffendviolently? [115] Mr. Harding has a long-standing and significant criminal history of violent offending, which includes the predicate offence ofaggravated assault. His victims have been domestic partners and individuals known to him, as well as strangers. His offences have beenimpulsive and often triggered by serious substance abuse or toxic relationships. [116] Dr. Choy has concluded that there exists a moderate to high likelihood of Mr. Harding’s reoffending violently. Mr. Harding is inthe early stages of addressing his risk factors.

While he has had some success in the structured institutional setting, he must makeconsiderable progress to reduce the risk he poses. [117] I am satisfied that without significant programming and supervision, the risk that Mr. Harding will reoffend violently issubstantial, particularly against domestic partners with whom he may have a relationship in the future. He would pose a threat of seriousphysical harm to those around him if he were to resume abusing substances, become involved in dysfunctional personal relationships orassociate with negative peers.

Is there a reasonable possibility of eventual control of the risk inthe community? [118] In considering whether there is a reasonable possibility of eventually managing Mr. Harding’s risk in the community, theevidence must establish more than an expression of hope that he will be treatable within a definite period of time: R v Otto, 2006 SKCA52 para 20, 279 Sask R 182, citing R v M(NJ) (2005), 201 CCC (3d) 54 (Ont CA). However, a reasonable possibility should not beconfused with a reasonable expectation: R v Bunn, 2014 SKCA 112 paras 37, 38, 2014 SKCA 112 , 446 Sask R 184.

Controlling the risk does not mean completely eliminating the risk but rather reducing it toan acceptable level. [119] Dr. Choy acknowledged that, based upon Mr. Harding’s difficulty with community supervision in the past, compliance will be achallenge for him in the future. However, it was Dr.

Choy’s opinion that there is a reasonable possibility of eventual control of Mr.Harding’s risk in the community provided that he changes his attitude toward compliance with supervision, engages in forethought,strictly adheres to substance abuse treatment, avoids problematic relationships, and makes his children a priority. [120] While incarcerated, Mr. Harding successfully participated in and completed substance abuse programming as well as moderate andhigh intensity violence prevention programming. During his time spent on remand, he has demonstrated that he is eager for and amenableto treatment. [121] Mr.

Harding is currently in the early stages of substance-abuse recovery. According to Dr. Choy, he will require intensivetreatment followed by ongoing lower intensity programming, both in-custody as well as in the community. He will need to seriouslyadhere to a substance abuse treatment regimen, as a necessary foundation for maintaining himself in the community. According to Dr.Choy, the projected estimates after a further appropriate period of treatment and programming indicates that he may succeed in loweringhis risk to the moderate category.

Even an average degree of success in treatment in the community may lower Mr. Harding’s risk. [122] Dr. Choy made a number of recommendations for Mr. Harding’s therapy going forward. He recommended mandatoryparticipation in intensive substance abuse treatment and programming to be followed by lower intensity treatment, both while in the

institution and in the community. Prohibition from the use of non-prescribed substances and screening was suggested. He recommended close supervision of Mr. Harding’s relationships, support for prosocial goals such as stable work and active parenting of his children. Programming and resources ought to be made available to him so that he can succeed in these areas, thereby decreasing his risk. Similarly, Mr. Harding should be provided with psychotherapeutic interventions, including treatment for trauma, emotional management and impulsivity.

A psychiatrist ought to be consulted with regard to medication. [ 123 ] It is evident to the Court that domestic violence programming is also essential for Mr. Harding. [ 124 ] There are also relevant Gladue considerations, such as his father’s substance use, family violence, lack of significant parental supervision and poverty. As a person of M é tis ancestry, Mr.

Harding has experienced racism, in that he is not accepted by either the Indigenous or the non- Indigenous communities. [ 125 ] In his report, James Gonzo presented evidence with regard to specific programming offered in federal institutions and the community for Indigenous offenders, such as the Aboriginal Integrated Correctional Program Model, which includes moderate and high intensity Aboriginal Multi-Target Programs. Unfortunately, there was little evidence of the existence of culturally relevant programs in the community which could contribute to the possible eventual control of Mr.

Harding’s risk. [ 126 ] Mr. Harding has had successful periods in the community when he abstained from substances, maintained employment and refrained from committing crimes. He attended Larson House as well as Pine Lodge, a residential treatment centre. He also did well in treatment while in custody, including the National Substance Abuse Program and the Booster Program. According to Dr. Choy, these facts are indicative of the possibility of success in the future, but continued programming is needed. [ 127 ] According to Dr. Choy, Mr. Harding’s relationship with his children and family is risk lowering.

He continues to maintain a relationship with his mother as well as his sister, both of whom provide positive, prosocial support. There is ample evidence that in recent years Mr. Harding has made his children a priority and this is likely to continue. [ 128 ] Relationship stress is one risk factor for Mr. Harding’s violence and is an area that will have to be managed in the future. In particular, he now appears to recognize that his relationship with Ms. Agdomar is dysfunctional and cannot continue. [ 129 ] Dr. Choy suggested that aging meaningfully lowers the risk for violent recidivism.

He stated that the beneficial effects of aging on violence typically are manifest in the fifth decade of life. At the time of the assessment, Mr. Harding was in his mid-40s and is now 47 years of age. Dr. Choy testified that as Mr. Harding moves into his 50s, these effects of aging will probably take hold. If Mr. Harding were to be released into the community in his late 40s or early 50s, it was Dr. Choy’s opinion there is a reasonable possibility of eventually controlling Mr. Harding’s risk in the community. [ 130 ] In all of the circumstances, I am satisfied there is more than a mere hope that Mr.

Harding’s risk can be eventually managed in the community. His positive attitude toward continuing treatment, his familial relationships, his inclination to be employed and the process of aging lead me to conclude that his risk can be significantly reduced. I am satisfied there is a reasonable possibility of eventual control or management of his risk in the community. [ 131 ] At this time, without further treatment, there exists a substantial risk that Mr. Harding will reoffend violently. However, on the

whole of the evidence, I am satisfied that with the proposed treatment plan and close supervision, the threat may be reduced to an acceptable level by designating Mr. Harding a long-term offender: R v Johnson , 2003 SCC 46 at para 29 , [2003] 2 SCR 357. [ 132 ] I therefore designate Scott Harding as a long-term offender. Penalty [ 133 ]

Section 753.1(3) provides

(3) If the court finds an offender to be a long-term offender, it shall (

a) 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 (

b) order that the offender be subject to long-term supervision for a period that does not exceed 10 years. [ 134 ] Although public safety is an enhanced objective of sentencing in the context of

Part XXIV, the sentencing judge is still required to address broader sentencing principles : Boutilier , para 56 ; R v Piche , 2019 SKCA 54 , para 82 . [ 135 ] The Gladue factors must be considered when sentencing long-term or dangerous offenders: R v Standingwater , 2013 SKCA 78 , 417 Sask R 158 ; R v Wolfleg , 2018 ABCA 222 , 363 CCC (3d) 168. [ 136 ] The objectives of a long-term supervision order are protection of the public and the rehabilitation and reintegration of the offender: R v Ipeelee , 2012 SCC 13 , [2012] 1 SCR 433.

The Court must indicate why the particular length of a long-term supervision order is appropriate: Knife , paras 96-98 . [ 137 ] The offence of aggravated assault is serious, as indicated by its maximum penalty of 14 years incarceration. [ 138 ] There are a number of aggravating circumstances in this case. Mr. Harding stabbed the victim in his abdomen with a large knife for no apparent reason. The stab wound was to the victim’s abdomen, a particularly vulnerable location close to vital organs, which had the potential however there was no evidence of any threat to him at the time. Mr.

Harding was bound by conditions of a recognizance that he keep the peace and that he not possess knives outside of his residence. Although Mr. Harding was with two others, it was clear that he acted alone. The offence had a considerable impact on the victim physically and psychologically. [ 139 ] Mr. Harding has a lengthy record for property and violent offences. Many of his offences arose out of dysfunctional domestic

relationships, however, he has been violent toward individuals both known and unknown to him. Substance abuse is a primary underlying factor in his offending behavior. [ 140 ] There are some mitigating factors. To Mr. Harding’s credit, he has successfully completed most of the programming he has undertaken. While his success has not always carried forward in the community, he continues to pursue all treatment that is offered to him. He currently is seeing a psychologist regularly and attending A.A. meetings. During more than two years on remand, he has abstained from substance use even though available. There have been gaps in his

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