R. v. R. D. Z. Date:, 2012 BCPC 61

Citation: R. v. R. D. Z. Date: 20120302 2012 BCPC 0061 File No: 25368 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. R. D. Z. REASONS FOR SENTENCE OF THE HONOURABLE ASSOCIATE CHIEF JUDGE M. J. BRECKNELL Counsel for the Crown: D. Brennan and A. Ross Counsel for the Defendant: K. Aartsen and H. Alkema Place of Hearing: Prince George , B.C.

Dates of Hearing: March 1-4, April 26-27, May 5, 10-13, 2010; January 17-19, and February 10, 2011 Date of Crown Written Submissions April 20, 2011 Date of Defence Written Submissions July 26, 2011 Date of Crown Reply: September 1, 2011 Date of Oral Submissions: September 8, 2011 Date of Judgment: March 2, 2012 I. INTRODUCTION [ 1 ] On November 24, 2008, following a six day preliminary inquiry, R.D.Z. (Mr. Z.) pleaded guilty to the following Counts of the 23 Counts of Information #25368 on which the Crown proceeded by Indictment:

a) Count 6 – dangerous operation of a motor vehicle, contrary to s. 249(1) (

a) of the Criminal Code (the Code );

b) Count 10 – discharge of a firearm with intent to prevent arrest, contrary to s. 244 (

c) of the Code ;

c) Count 14 – break and enter a dwelling house with intent to commit an indictable offence, theft, contrary to s. 348(1) (

a) of the Code ;

d) Count 16 – break and enter of a dwelling house and committing an indictable offence, unlawful confinement, contrary to s. 348 (1) (

b) of the Code ;

e) Count 19 – kidnapping with a firearm with intent to unlawfully confine, contrary to s. 279(1.1) (

a) of the Code ;

f) Count 21 – discharge of a firearm with intent to wound, maim or disfigure, contrary to s. 244 (

a) of the Code . (collectively the Index Offences) [ 2 ] All of these events occurred in the Fraser Lake, Vanderhoof and Saikuz First Nation area between August 20 and 21, 2007. [ 3 ] Mr. Z.’s activities attracted considerable media attention and resulted in an extensive response from the Royal Canadian Mounted Police (RCMP) including the deployment of several Emergency Response Teams, police service dogs and aerial surveillance. [ 4 ] Based on the Index Offences and Mr.

Z.’s previous criminal history, the Crown seeks to have him declared a dangerous offender on the basis that he constitutes a threat to the life, safety or physical or mental well-being of other persons as described in the dangerous offender provisions of the Code . In addition, the Crown contended that there is no reasonable possibility of being able to eventually control Mr. Z.’s risk in the community and as such the Court should decline to exercise its residual discretion to declare him a long-term offender. If Mr.

Z. is designated a long-term offender the Crown submitted a global sentence of 25 years to life would be appropriate. The Crown also seeks a lifetime firearm prohibition and a mandatory DNA order. [ 5 ] Defence counsel originally suggested that he would pursue having Mr. Z. sentenced in the usual manner for these offences contending that Mr. Z.’s

section 7, 9 and 11 rights under the Charter of Rights and Freedoms (the Charter ) were violated by the improper actions of the Crown in bringing the dangerous offender proceeding. That position was not advanced in submissions. The Defence now seeks to have Mr. Z. declared a long-term offender with a global sentence of 12 years less credit for time served followed by a long term supervision order of 10 years on the basis that there is a reasonable possibility of eventually controlling the risk posed by Mr. Z. in the community. Defence counsel takes no issue with the firearms prohibition and the DNA order. II.

THE LAW [ 6 ] In arriving at an appropriate sentence in this matter the Court must consider the range of sentences available for the offences committed, the general purpose and principles of sentencing and the dangerous offender and long term offender provisions of

Part XXIV of the Code. [ 7 ] In addition, the Court must consider the applicable case law pertaining to the conduct of a dangerous offender hearing, the determination of the dangerous offender or long term offender designation and in the case of the latter the appropriate determinant sentence for each of the Index Offences. [ 8 ] The statutes and case law relevant to the determination of this matter are set out below. A. STATUTES 1. The Index Offences [ 9 ] The punishment for the Index Offences include the following Code sections in force at the time: a) 244.

Every person who, with intent a. to wound, maim or disfigure any person;... c. to prevent the arrest or detention of any person discharges a firearm at any person, whether or not that person is the person mentioned in paragraph (a), (

b) or (c), is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years and to a minimum punishment of imprisonment for a term of four years. b) 249.

(1) Every one commits an offence who operates a. a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place;…

(2) Every one who commits an offence under subsection (1) a. is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; …

c) 279.

(1) Every person commits an offence who kidnaps a person with intent a. to cause the person to be confined or imprisoned against the person’s will;

(1.1) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable

a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; d) 348.

(1) Every one who a. breaks and enters a place with intent to commit an indictable offence therein, b. breaks and enters a place and commits an indictable offence therein, or… is guilty d. if the offence is committed in relation to a dwelling-house, of an indictable offence and liable to imprisonment for life 2. General Sentencing Principles [ 10 ] In any sentencing case, the general purpose and principles of sentencing must be considered. In that regard, the following portions of Sections 718-718.2 apply: (a) 718.

The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. (b) 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. (c) 718.2 A court that imposes a sentence shall also take into consideration the following principles:.... (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. 3. Dangerous and Long Term Offenders [ 11 ] The provisions dealing with dangerous and long term offenders are set out in Sections 752 – 753.1 of the Code in force at the time of the Index Offences, which state as follows: a) 752. In this Part, “court” means the court by which an offender in relations to whom an application under this

Part is made was convicted, or a superior court of criminal jurisdiction; “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... b) 753.

(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), 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...

(4) If the court finds an offender to be a dangerous offender, it shall impose a sentence of detention in a penitentiary for an indeterminate period.

(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. c) 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.

(2) The court shall be satisfied that there is a substantial risk that the offender will reoffend if... (

b) the offender (

i) has shown a pattern of repetitive behaviour of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender’s causing death or injury to other persons or inflicting severe psychological damage on other persons, or...

(3) Subject to subsections (3.1), (4) and (5), 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 sentence must be a minimum punishment of imprisonment for a term of two years; and (

b) order the offender to be supervised in the community for a period not exceeding ten years, in accordance with

section 753.2 and the Corrections and Conditional Release Act . B. CASE LAW 1. Dangerous Offender Hearing Evidence [ 12 ] There was disagreement between the Crown and Defence counsel concerning the appropriate and relevant evidence that can be admitted in a dangerous offender hearing with regard to statement admissibility, the use of hearsay in experts’ reports and the proof required of previous convictions. [ 13 ] In that regard the Crown relied on the following cases: (

a) R. v. L.E.T. 2003 BCSC 1154

(

b) R. v. L.T.P. 2001 BCSC 1199 (

c) R. v. Kim 2000 BCSC 836 (

d) R. v. M. (W. J.) [1998] S.J. No. 716 (S.K.Q.B.) (

e) R. v. Gregoire (1998) (MB CA), 130 C.C.C. (3d) 65 (Man. CA) (

f) R. v. Jack (BC CA), [1998] B.C.J. No. 458 (

g) R. v. Hurrie [1997] B.C.J. No. 2633 (

h) R. v. Boyd (1983) (BC CA), 8 C.C.C. (3d) 143 (B.C.C.A.) (

i) R. v. Gardiner (SCC), [1982] 2 S.C.R. 368 (

j) R. v. Wilband (SCC), [1967] S.C.R. 14 [14] Once the case law was presented Defence counsel acceded to the Crown’s submissions on those points. 2. Dangerous Offender Cases [15] The Crown cases with regard to dangerous offender sentencing include: (

a) R. v. Trevor 2010 BCCA 331 (

b) R. v. T.R.S. 2009 BCCA 345 (

c) R. v. Allan 2009 BCSC 1245 (

d) R. v. Neale 2009 BCSC 1239 (

e) R. v. Bruneau 2009 BCSC 1089 (

f) R. v. Peters 2008 BCCA 446 (

g) R. v. Johnson 2008 BCCA 149 (

h) R. v. Haug 2008 SKCA 23 (

i) R. v. Friesen 2008 SKQB 423 (

j) R. v. Daniels 2008 SKQB 349 (

k) R. v. Wright 2008 SKQB 268 (

l) R. v. Simpson 2007 BCSC 1847 (

m) R. v. Russell 2007 BCSC 1323 (

n) R. v. Smaaslet 2007 BCSC 504 (

o) R. v. Grayer 2007 ONCA 13 (

p) R. v. Jamieson 2006 BCSC 1914 (

q) R. v. D.W.A.P. 2006 BCSC 1288 (

r) R. v. T.R.S. 2006 BCSC 82 (

s) R. v. Otto 2006 SKCA 52 (

t) R. v. Wormell 2005 BCCA 328 (

u) R. v. Pedden 2005 BCCA 121 (

v) R. v. Gibbon 2005 BCSC 935 (

w) R. v. McCallum (2005) (ON CA), 201 C.C.C. (3d) 541 (OCA) (

x) R. v. T.P.S. 2004 YKCA 10 (

y) R. v. Johnson 2003 SCC 46

(

z) R. v. J.S.M. 2003 BCCA 66 (aa) R. v. Dagenais 2003 ABCA 376 (bb) R. v. Cooper 2002 BCCA 527 (cc) R. v. M.J.C. 2000 BCSC 1732 (dd) R. v. Dow 1999 BCCA 177 [16] Defence counsel relied only on Johnson from the Supreme Court of Canada. 3. Sentencing Cases [17] The Crown’s cases with regard to the appropriate sentence for the Index Offences include: (

a) R. v. Hernandez. 2009 BCSC 474 (

b) R. v. Fester 2008 BCCA 381 (

c) R. v. B.C.M. 2008 BCCA 365 (

d) R. v. Nguyen 2008 BCSC 1124 (

e) R. v. Randhawa 2007 BCCA 598 (

f) R. v. Vickers 2007 BCCA 554 (

g) R. v. Meigs 2007 BCCA 394 (

h) R. v. Augustine 2007 NBQB 158 (

i) R. v. Lowman 2006 BCSC 1565 (

j) R. v. Mackenzie 2006 NBQB 75 (

k) R. v. A.J.C. 2004 BCCA 268 (

l) R. v. Perez. [2004] O.J. No. 4322 (

m) R. v. Mills 2002 BCCA 35 (

n) R. v. Jackson (ON CA), [2002] O.J. No. 1097 (

o) R. v. Melanson (1998) (NB CA), 199 N.B.R. (2d) 338 (NBCA) (

p) R. v. Laramie [1995] O.J. No. 4478 [18] Defence provided no cases on this issue. III. PRELIMINARY MATTERS [19] On July 2, 2008, the provisions of the Code governing dangerous offender and long-term offender applications were amended. These amendments occurred after the date of the Index Offences but before Mr. Z. had pled guilty to them and before the Crown hadapplied to have him found a dangerous offender. [20] The Crown submits, and Defence counsel agrees, that the previous provisions should govern this application.

Furthermore, theCrown acknowledges and the Defence agrees that any changes to the sentencing provisions for the Index Offences which are moreonerous than similar provisions at the time of the offence, should not apply. I agree with both those submissions and they accord withBruneau. [21] It is trite law that persons accused of criminal behaviour are to be charged and sentenced under the criminal law in place at thetime the offence was committed.

If criminal law provisions change between the commission of an offence and completion of theproceedings, that person is entitled to be sentenced under whichever provisions provides for lesser punishment as described in Johnson(SCC) and

section 11(

i) of the Charter. [22] Defence counsel did not dispute that the Crown had complied with the necessary procedural requirements of a dangerousoffender hearing such as notice and the application for an assessment. IV. DANGEROUS OFFENDER HEARING PROCEDURE [23] In a dangerous offender hearing, the Court must first determine whether the Crown has established all of the relevant

requirements for finding Mr. Z. to be a dangerous offender, pursuant to s. 753 of the Code . There are both procedural and substantive requirements under these sections. [ 24 ] If the Crown fails to prove the requirements beyond a reasonable doubt, Mr. Z. cannot be declared a dangerous offender. At that point, the Court may treat the application as either an application to find him to be a long-term offender and impose a sentence in accordance with those provisions or the Court may impose a determinant sentence on the charges which Mr.

Z. has been convicted. [ 25 ] On the other hand if the Crown proves beyond a reasonable doubt the requirements for dangerous offender status, then the Court must determine whether there is no reasonable possibility of eventual control in the community of the risks posed by Mr. Z. With regard to this second step, the Court must determine whether the less severe sentencing option of long-term offender would be sufficient to reduce Mr. Z.’s threat to the life, safety, or physical and mental well-being of other persons to an acceptable level. If that is the case, Mr. Z. should be sentenced as a long-term offender.

If not, he should be sentenced as a dangerous offender. [ 26 ] There is no dispute between counsel that in this case there are three different grounds by which Mr. Z. may be found to be a dangerous offender, namely any one of the three subsections of s. 753(1)(a). The Crown need only prove one of these grounds, not all three. ( see Lewis and Dow ) [ 27 ] In addition, counsel agreed that one essential element of all three grounds is that Mr. Z. has to have been convicted of a serious personal injury offence as defined in s. 752. There were no submissions made by Defence counsel suggesting that Mr.

Z. had not committed a serious personal injury offence. The Crown submitted that most of the Index Offences fit into that category. It is clear that Counts 10, 14, 16, 19 and 21 are all serious personal injury offences as described in s. 752. [ 28 ] Therefore, the remaining issues that must be decided are: (

a) has the Crown proven beyond a reasonable doubt that Mr. Z. is a dangerous offender as described in any of the grounds set out in s. 753 (1)(a), and if that is the case; (

b) does the evidence prove that Mr. Z. has no reasonable possibility of eventual control in the community and therefore sentencing him as a long-term offender would not be sufficient. [ 29 ] Defence counsel made no submissions as to whether or not Mr. Z. met the definition of dangerous offender under s. 753 but that does not relieve the Crown from presenting and the Court from considering whether on all of the evidence presented that designation is made out beyond a reasonable doubt. V. THE INDEX OFFENCES A. PRELIMINARY INQUIRY EVIDENCE [ 30 ] Prior to Mr.

Z. pleading guilty to Index Offences evidence was heard a preliminary inquiry which lasted six days between September 16 and October 1, 2008. That preliminary inquiry heard from 19 witnesses including the victims of the Index Offences. The Crown relied on the preliminary inquiry evidence during the dangerous offender proceeding and in its submissions. B. OTHER EVIDENCE [ 31 ] In addition to relying on the preliminary inquiry evidence the Crown also called a number of witnesses involved in the Index Offences at the dangerous offender hearing. Several of those witnesses were Mr. Z's victims. [ 32 ] Mr.

Z.’s statements to the RCMP, in which he made many admissions concerning the Index Offences, were also marked as an exhibit. C. THE EVENTS [ 33 ] On August 18, 2007, Mr. Z., in breach of his parole conditions left Prince George and went to Vanderhoof. Once there he allegedly assaulted his girlfriend, Ms. T., and when arrested for that was highly intoxicated. On his way back to the detachment with the RCMP he attempted to strangle himself with some of his clothing. [ 34 ] When the RCMP made checks on CPIC they noted that Mr. Z. had, in the past, threatened to shoot police officers if he was stopped.

The CPIC check did not reveal that Mr. Z. was on parole so he was released the next morning once he had sobered up. Several hours later the RCMP were informed that Mr. Z. was in breach of his parole and was arrestable. [ 35 ] Later that day Mr. Z. met his parents for lunch in Vanderhoof. They told him that they were going on a short vacation that day and they continued with those plans after they met with Mr. Z. [ 36 ] Later, Mr.

Z. went to his parents residence in Fraser Lake, broke into their home and a shop building, and stole a number of items including a rifle, ammunition, several knives, clothing and some food. Mr. Z. was not knowledgeable about and had no past experience in the use of firearms. [ 37 ] He also stole his parents Volkswagen automobile and drove it a short distance before becoming involved in a minor motor vehicle accident. Mr. Z. did not have a drivers’ license and was not an accomplished driver.

He abandoned the Volkswagen taking with him many of the items he had stolen from his parent’s home but leaving behind some of the ammunition. After abandoning the Volkswagen Mr. Z. returned to his parents’ residence and stole a red pickup truck. [ 38 ] At about the same time Mr. Z. was stealing the truck the RCMP located the Volkswagen and when the abandoned ammunition rounds were found inside that raised additional safety concerns for the RCMP. Two constables in separate vehicles were dispatched to Mr. Z.’s parents’ residence. The constables were aware that Mr.

Z. may be in the area, were concerned that he may be at his parents’

residence and had concluded he could be armed. [ 39 ] While deciding on what strategy they wish to employ in approaching the residence the RCMP members heard the sounds of a vehicle coming up the driveway and then saw the truck turn onto the road and start travelling in their direction. They returned to their vehicles. One constable raised his arm to indicate that the truck should stop. Instead of stopping the truck swerved towards the constable. As the constable was retreating from the roadway he saw that Mr.

Z. was the driver. [ 40 ] The RCMP gave chase and after a short distance the first RCMP vehicle came upon the truck crashed into the ditch. The constable got out of his vehicle and observed Mr. Z. inside the truck holding a rifle. The constable retreated to his vehicle to obtain a shotgun. Mr. Z. shot a window out of the truck. He climbed out carrying the rifle and ran from the ditch up a hillside to escape. [ 41 ] While he was running up the hillside he turned and fired the rifle two times. The RCMP member, believing Mr. Z. was firing at him, took cover. In a statement to the RCMP Mr.

Z. said that he had shot at the constable but in later statements said he shot in the air or that the rifle had discharged accidentally. [ 42 ] After the shots were fired Mr. Z. escaped into the forest and the constable remained under cover until a second RCMP vehicle arrived and both members withdrew from the area. In his RCMP statement Mr. Z. said when he was hiding in the forest he had the constable in his rifle sights but the constable moved so Mr. Z. allowed him to live. [ 43 ] Being knowledgeable of the area Mr. Z. moved through the forest in the direction of some lakeside residences.

He then committed a series of break-ins of several homes and cottages gathering up food, alcohol, clothing and other items and in some cases doing damage to property. [ 44 ] Mr. Z. then decided to try to paddle across Fraser Lake in a canoe but the water became rough and he returned to shore. It was about that time that Mr. Z. noticed that a plane was flying overhead at a low altitude and he believed, correctly, that the plane had him under surveillance. This caused him concern and anxiety throughout the rest of the time he was being pursued. [ 45 ] At some point during this period Mr.

Z. was seen by some RCMP members walking down the road carrying the rifle and some of the items he had stolen. Armed with the information that Mr. Z. had already taken shots at other RCMP members he was immediately confronted. Mr. Z. pointed his rifle at the police but did not fire. The RCMP members shot 5 rounds at Mr. Z. before their weapons malfunctioned but did not hit him. He ran back into the forest leaving behind the rifle and some of the stolen items. [ 46 ] Mr.

Z. worked his way through the forest and back down to more lakefront homes which he broke into stealing food, alcohol and in one cabin a .22 pellet gun. He also committed vandalism in that cabin writing on the walls “sorry” and "cops kill". [ 47 ] Throughout this time Mr. Z. was consuming the alcohol he stole from the residences. At times he also ate food he found in the cabins and at certain points slept or passed out in one or more cabins. [ 48 ] At one of the locations he broke into Mr.

Z. left behind a black sports bag containing numerous rounds of ammunition of various calibres as well as his wallet and some personal documentation. [ 49 ] About this time Mr. K. went out to the lake to check on his and some of his neighbours’ residences because he had received information that there were break-ins occurring. After checking and securing his and his neighbours’ property, Mr. K. was in his residence when Mr. Z. knocked on the door. When Mr. K. answered the door Mr. Z. confronted him with the. 22 pellet gun. Mr. Z. threatened Mr. K. with that weapon and a large knife. He held the knife to Mr.

K.’s neck and at one point he inflicted a small cut to Mr. K.’s neck. He then restrained Mr. K.’s hands and feet with tape. [ 50 ] At various times while at Mr. K.’s residence Mr. Z. threatened Mr. K. telling him that he had killed others and he would kill Mr. K. if he was uncooperative. [ 51 ] Mr. Z. demanded Mr. K. tell him where his rifles were stored and then collected three weapons, a .303 bolt action rifle (the.303), a .300 lever action rifle (the .300) and a .22 rifle (the .22). Mr. Z. asked Mr. K. if he had a shotgun but was told that he did not. Mr.

Z. gathered together approximately 160 rounds of ammunition for the three weapons and then proceeded to load them. Mr. Z. had some difficulty loading the weapons so he freed Mr. K. and got him to assist. Once the weapons were loaded Mr. Z. fired several rounds in the house from at least two of the weapons. This further frightened Mr. K. who felt compelled to comply with further demands from Mr. Z. [ 52 ] While in the residence Mr. Z. and Mr. K. ate some food and drank a beer. Then Mr. Z. told Mr. K. that he wanted to go to Stony Creek (Saikuz) because he wanted to apologize to a girl he had slapped earlier.

He told Mr. K. that after he had done that if there was a shootout with the RCMP that was fine with him and they could kill him. [ 53 ] Mr. Z. forced Mr. K. into his van telling him that if he drove him to Saikuz he would let him go and everything would be okay. Mr. Z. brought with him the three firearms and ammunition but left behind the .22 pellet gun he had stolen earlier and used to force his way into Mr. K.'s residence. [ 54 ] Soon after leaving Mr. K.’s residence the van, with Mr. K. driving and Mr. Z. hiding in the back with the firearms, passed by some RCMP vehicles on the road but was not stopped. Mr.

Z. then directed Mr. K. to a neighbour's cabin where he unsuccessfully searched for a shotgun. Mr. Z. had a particular interest in obtaining a shotgun because he believed it would have great destructive capabilities. [ 55 ] Mr. K. was then told by Mr. Z. to drive to Saikuz. Not long after they departed the van passed a RCMP roadblock but was waved through. Mr. Z., hiding in the back, told Mr. K. that he was not to stop no matter what. Mr. Z. had the firearms arrayed in the back of the van ready for use.

[ 56 ] En route to Saikuz, Mr. Z. directed Mr. K. to drive into Vanderhoof. Once there Mr. Z. tied Mr. K. up and left him in the back of the van. Mr. Z. drove to a residence, had a brief discussion with someone and then drove to Saikuz with Mr. K. tied up in the back. [ 57 ] Once at Saikuz Mr. Z. went to the recreation centre and met a young woman. She came back to the van while telling Mr. Z. that he was being described on the radio as armed, violent and dangerous and he was in a lot of trouble and should give himself up. Mr.

Z. told the young woman that if she came with him he would give himself up in the morning. He also told the young woman that Mr. K. was tied up in the back of the van. She became upset that Mr. Z. had taken a hostage and told him to let Mr. K. go. [ 58 ] Mr. Z. then drove to a store where he purchased some food and then he drove to a park near the edge of Saikuz where he released Mr. K.’s constraints. They remained at the park for a period of time eating the food. [ 59 ] Shortly after, Mr. Z. and Mr. K. met up with another man and it was decided to return to Vanderhoof to obtain some alcohol.

Several people got into the van and went to Vanderhoof with Mr. Z. and Mr. K. [ 60 ] Once in Vanderhoof one of the passengers went into the liquor store and purchased several bottles of vodka and some sherry. The group then went to a local convenience store and purchased cigarettes and then returned to Saikuz in the early evening. [ 61 ] Once back at Saikuz Mr. Z. forced Mr. K. to drink a considerable amount of vodka and sherry until he became intoxicated. Mr. K. was told by Mr.

Z. not to reveal to the other people they were drinking with what had occurred and everything would be fine. [ 62 ] Just as it was getting dark, Mr. Z. left in the van and Mr. K. did not see him again. Mr. K. was quite intoxicated and eventually passed out. When he woke up in the morning he walked to the Emergency Response Team (ERT) command post and advised the first RCMP member he saw that he was probably the hostage they were looking for. [ 63 ] After leaving Mr. K., Mr. Z. met up with Ms. T. and they went in the van down a narrow path to a cabin by the lake that Ms. T. knew well.

During the time they were at the cabin Mr. Z. spent some time loading and working on the firearms because one was jamming. [ 64 ] By this time it was dark. There was no moonlight that night. All the witnesses agreed it was extremely dark, almost pitch black. [ 65 ] At about the same time Mr. Z. and Ms. T. were travelling to the cabin three ERTs, which had been mobilized after Mr. Z. had fired the rifle in the direction of the RCMP member, arrived in Saikuz. The ERTs were given information that Mr.

Z. had shot at the member in an attempt to either kill the member or escape and that he had pointed a rifle at other members. The ERTs set up a command post and then were deployed to various areas of the community with one ERT being sent to the path to the cabin. [ 66 ] Not long after the ERTs were deployed Mr. Z. and Ms. T. left the cabin and began walking up the path to return to Saikuz. Mr. Z. and Ms. T. were each carrying one of the two loaded rifles, the .300 and the .303, having left the .22 behind. [ 67 ] In his statement to the RCMP Mr.

Z indicated that he chose the .300 and the .303 because the .22 bullets were too small and he wanted rifles with bullets capable of knocking down and piercing the bullet proof vests of the RCMP members. [ 68 ] At some point Mr. Z. and Ms. T. came into contact with the ERT that was deployed on the path. What occurred from that point is a matter of some contention. [ 69 ] Several ERT members gave evidence that they heard Mr. Z. and Ms. T. coming up the path but could not clearly see them. Two members deployed their rifle mounted flashlights and without warning Mr. Z. fired at them.

They returned fire for several minutes. During the fire fight they received assistance from the other ERT’s in retreating from the area. They took up a defensive position and waited until morning before deploying further because they were uncertain as to whether or not Mr. Z. still had any hostages or would try to escape in the van. [ 70 ] In Ms. T. evidence and in Mr. Z.’s statement after the events, they both related that the ERT members began firing at them and only then did Mr. Z. returned fire using both rifles. [ 71 ] The evidence indicates that Mr.

Z. shot as few as two and as many as five rounds using both of the rifles. The estimate of the ERT's response (depending on which witnesses were correct) was between 100 and 1,000 rounds in the direction from where they believed Mr. Z. had shot at them. [ 72 ] The next morning the ERTs again deployed down the path and, with the assistance of a police service dog, Mr. Z. was quickly located. He was found asleep lying on top of the two rifles and was quickly subdued by ERT members. The two rifles were loaded and Mr. Z. had additional ammunition on his person. [ 73 ] After his arrest Mr.

Z. was taken to the Vanderhoof RCMP detachment where he was given an opportunity to consult counsel and eventually gave a statement about the events of the previous day. [ 74 ] During his statement to the RCMP, Mr. Z. indicated that he had intended to leave the cabin and get back to Saikuz where he could hijack another vehicle and take another hostage to try to make a run for it. He said he would kill a hostage if necessary.

He also indicated he was prepared to engage in further gunfights with the RCMP even if it meant people, including RCMP members or himself, might be killed. [ 75 ] In his submissions Defence counsel did not take issue with the facts alleged by the Crown concerning the Index Offences as set out in the preliminary inquiry transcripts, the dangerous offender hearing evidence and Mr. Z.’s statements to the RCMP. VI. MR. Z.’s CRIMINAL HISTORY [ 76 ] Hundreds of pages of documents, in several volumes, pertaining to Mr. Z.'s contact from the time he was a young child with

various government agencies, including the Ministry of Children and Family Development (MCFD), Youth Corrections, Youth Probation, Community Corrections, the Provincial Corrections Branch, and the in custody and parole divisions of the Correctional Service of Canada (CSC) were marked as exhibits. In addition, eight witnesses from the aforementioned various government agencies and service providers retained by them gave evidence and reviewed the documents for the Court. YOUTH FILE 1633 [ 77 ] Mr. Z. and a co-accused set fire to a motor vehicle at a car dealership on September 8, 2000.

He was released from custody and required to reside at a group home. On January 8, 2001, he was sentenced to a one-year probation order and 25 hours of community work service. In later interviews Mr. Z. said his reasons for committing the arson were because he was bored and it looked like fun. YOUTH FILE 1670 [ 78 ] Mr. Z. breached the probation order in file number 1633 by failing to comply with terms requiring him to stay away from a local mall and to have no contact with his co-accused.

On April 14, 2001, he was arrested and remanded in custody until May 23, 2001, when he was released to return to the group home. While in custody he was psychiatrically assessed by Dr. Peter Constance, Psychiatrist, of the Youth Forensic Psychiatric Services and a report was prepared for the Court. On June 11, 2001, he was sentenced to 18 months probation and 50 hours of community work service. YOUTH FILES 1862-2-BT, 1863-2-BT, 2203 [ 79 ] Mr. Z. breached the previous probation orders and committed a mischief. On January 4, 2002, he was arrested and remanded in custody until January 9, 2002.

On January 13, 2002, he was sentenced to one day open custody plus time served on all Counts. YOUTH FILE 2273 [ 80 ] On April 30, 2002, Mr. Z. breached the curfew on his probation orders and was found carrying a concealed weapon, a large knife. He was arrested and remanded in custody. On May 15, 2002, he was sentenced to 14 days open custody and 18 months’ probation. YOUTH FILE 2286 [ 81 ] On May 28, 2002, Mr. Z. was released from custody and directed to reside at a group home as a term of his probation. He ignored his curfew and was arrested later that day and remanded in custody.

On May 31, 2002 he was sentenced to 14 days open custody. YOUTH FILES 2273-B, 2364, 2375-B [ 82 ] On July 14, 2002, Mr. Z. was arrested for breach of probation and mischief and was remanded in custody until July 24, 2002 when he was released. He was arrested again on August 9, 2002 for breach of probation and remanded in custody. On August 14, 2002, he was sentenced to 30 days open custody, concurrent on each Count. YOUTH FILES 2472, 2473 [ 83 ] On December 15, 2002, Mr. Z. committed a mischief by kicking out the window of a RCMP vehicle. On January 3, 2003, Mr.

Z. committed a theft from a shoe store and while doing so was in possession of a weapon for dangerous purpose, a large knife. On May 7, 2003, he was sentenced to a three month Deferred Custody and Supervision Order. YOUTH FILES 2273-6-B4A, 2273-5-B4, 2472, 2473, [ 84 ] On June 9, 2003, Mr. Z. breached the Deferred Custody and Supervision Order and the probation orders. A warrant was issued and was he was arrested on June 23, 2003 and remanded in custody. On June 25, 2003, he was sentenced to time served plus 36 days open custody and 18 days of community supervision and seven months probation.

During his probation he attended Camp Trapping (a Youth offender outdoor experience facility) from August 28, 2003 to December 19, 2003. YOUTH FILE 2771-C2 [ 85 ] On April 13, 2004, Mr. Z. committed an assault and a theft. On May 26, 2004, he is sentenced to 40 days open custody, 20 days community supervision and one year probation which was converted to be supervised by adult Community Corrections. YOUTH FILE 2853 [ 86 ] On April 24, 2004, Mr. Z. committed a theft from a grocery store. On August 25, 2004, he was sentenced to two days open custody followed by one day of community supervision.

ADULT FILE 18288 [ 87 ] On May 20, 2004, Mr. Z. committed a mischief. He was arrested and remanded in custody. On May 26, 2004, he was sentenced to 30 days in jail and one year probation. ADULT FILE 18479 [ 88 ] On May 6, 2004, Mr. Z. committed a theft in a grocery store. He was arrested by a Loss Prevention Officer but soon after escaped lawful custody, assaulted the Loss Prevention Officer and threatened him with a needle while stating he had HIV. He was arrested on July 2, 2004 and remanded in custody. On August 25, 2004, he was sentenced to time served and two years probation.

ADULT FILE 18823 [ 89 ] On September 5, 2004, Mr. Z. was arrested for robbery. He was released from custody but rearrested on September 28, 2004 and remanded in custody. On November 23, 2004 he was acquitted of that robbery and released. ADULT FILE 19684 [ 90 ] On January 1, 2005, Mr. Z. and a co-accused committed a robbery of a convenience store. In doing so they threatened the clerk with a needle while stating they had HIV. He was arrested on January 6, 2005 and remanded in custody.

On February 2, 2005, he was sentenced to 12 months jail and two years probation given a 10 year firearms prohibition and a DNA order. On November 10, 2005, he was released from jail. ADULT FILES 18479-2B, 19684-2B [ 91 ] On November 16, 2005, Mr. Z. breached the probation orders and was arrested and remanded in custody. On November 30, 2005, he was sentenced to 14 days jail and credited with 14 days time served. On December 8, 2005, he was released from jail. ADULT FILE 21377 [ 92 ] On December 12, 2005, Mr. Z. committed a robbery and an assault.

He stopped the victim on the street and demanded money which was owed either to him or to a third party for whom he was acting as an enforcer. He punched the victim several times in the face and held a knife to the victim’s throat while threatening to kill him. He threatened to break the victim’s neck. He made the victim accompany him to various residences in order to obtain money. The victim was helped to escape by another party. Mr.

Z. was arrested soon after the events and remanded in custody. [ 93 ] On April 10, 2006, he was sentenced to two years in the federal penitentiary for the robbery, one year concurrent for the assault and given a lifetime firearms prohibition. On August 9, 2007, he was released from the penitentiary on mandatory parole with strict conditions. He returned to Prince George to reside with his grandmother. That plan lasted only a few days. ADULT FILE 25368 [ 94 ] On August 20, 2007, Mr. Z. committed the Index Offences. He was arrested on August 21, 2007, and has been in custody ever since.

That is a total of 1,655 days or approximately 54.6 months or 4.5 years. However, some of that time must be attributed to the revocation of his parole until his warrant expiry date of April 9, 2008. [ 95 ] In total Mr. Z.’s time in custody or under community supervision of one type or another for his many offences was continuous from 2001 until the present, except for a few months in 2004 and 2005, a period of over 11 years. In the Crown's estimation Mr. Z. has been out of custody for only 99 days from 2004 to the present, a period of approximately 7 years. VII.

INSTITUTIONAL COMPLIANCE [ 96 ] From the age of 14, after he left the care of his parents, Mr. Z. when not in custody, was required to reside in group homes or other locations to which he was directed. Several service providers, youth probation officers, adult probation officers and correctional centre supervisors gave evidence and explained the numerous volumes of records concerning Mr. Z.'s progress, behaviours and incidents throughout his youth and adult criminal history. A. YOUTH [ 97 ] The records kept by the youth facilities over the four years he resided in them indicate the following troubling behaviours:

a) suspensions from school for violence, vandalism and making homemade bombs;

b) high impulsivity, poor response to instructions unless retaliation is likely;

c) threatening other residents with knives and other weapons and verbal or physical attacks on other residents or staff;

d) high aggression, poor empathy, antisocial and aggressive behaviour;

e) suspected abuse of animals including cruelty, killing and sexual interactions;

f) threatening to blow up public buildings;

g) escalation of antisocial behaviour, increasing aggression, anger and impulsivity requiring almost constant supervision;

h) wanting to learn to box so he could hurt others;

i) threats of suicide on numerous occasions;

j) sexualized behaviours towards other residents and staff;

k) addictions to numerous substances resulting in several overdoses requiring hospitalizations;

l) stating he is an expert on jails and that there are some things worth going to jail for;

m) stating he would shoot police if stopped while in the community;

n) threatening to stab other residents at the Prince George Youth Correctional Center (PGYCC) ;

o) demonstrating extreme anger and aggression towards other residents and staff at PGYCC. B. ADULT [ 98 ] During the time Mr. Z. has been under the supervision of provincial Community Corrections, in custody in at the Prince George Regional Correctional Center (PGRCC) or under the authority CSC in a federal penitentiary or on parole continuing troubling behaviours were noted in their running records including:

a) lack of any employment history, income earned from drug selling and acting as an enforcer;

b) not motivated to leave the criminal lifestyle which he finds enjoyable and profitable;

c) significant indifference to criminal behaviour and violence, lack of empathy for his victims;

d) no regard for his safety or that of anyone else. Little appreciation for life, his or others. Stated he will be involved in a violent death, either his or the police;

e) numerous assaults and threatening both other inmates and staff resulting in periods of segregation;

f) no remorse for the victims of his violence, quite prepared to be paid to enforce drug debts by violence and is only discouraged from such behaviour by the jail time he received;

g) possession of contraband;

h) drug use and gas sniffing;

i) making homemade weapons;

j) lack of motivation during participation in programming;

k) unwillingness or inability to follow rules or directions;

l) extreme anger problems and unpredictable violent outbursts;

m) destruction of cells and contents on several occasions. VIII. MR. Z.’S PERSONAL HISTORY A. BIOLOGICAL FAMILY [ 99 ] Mr. Z. was born on April 29, 1986, was 21 at the time of the Index Offences and is now 25. He is a non-status aboriginal person of Cree ancestry. [ 100 ] Mr. Z.’s biological parents were not instrumental in his upbringing. His father is dead and his mother has not had care of him since he was six months old. She was reported to have consumed alcohol and other drugs during her pregnancy with Mr. Z. and his older siblings. During the first few months of his life Mr.

Z. was exposed to significant neglect and reported abuse. [ 101 ] He was unaware of who his biological parents were or the existence of his extended family until he was about 16. Since then he has had infrequent contact with his mother and has been made aware of several half siblings. His biological mother is dying of AIDS. [ 102 ] He has been able to re-establish a relationship with his biological paternal grandparents and has, on very brief occasions, resided with them. It is clear from the evidence that his grandmother has a genuine concern for Mr.

Z.'s well-being and safety but given her advanced age is unable to assist in controlling him in the community. His grandparents planned to move to their traditional First Nations territory in a remote area of Alberta. [ 103 ] Mr. Z. has two older siblings who were adopted along with him when he was 11 months old. He has not had much contact with those siblings for approximately 10 years. B. ADOPTIVE FAMILY [ 104 ] Mr. Z. and his two elder siblings were adopted by his parents, the Z.’s, when he was 11 months old. Mr.

Z. and his siblings were classified as special needs because of the challenges arising from their prenatal exposure to alcohol and drugs and the earlier abuse and neglect to which they had been exposed. The three siblings were moved to Fraser Lake where they joined the family which included the Z.'s daughter. [ 105 ] The family lived on acreage fronting Fraser Lake a short distance from the community were his father operated an automotive repair business. They adhered to a strict Mennonite faith and their values and lifestyle did not prove conducive to their ability to care for and control Mr. Z.

Both parents attended courses to help them understand and better care for Mr. Z. and his siblings. Despite their best attempts to learn how to address his challenges and attempts to obtain assistance and resources from various community and government agencies throughout the years they cared for him they had little success in controlling Mr. Z.’s behaviour problems. [ 106 ] As an infant Mr. Z. was noted to be hyperactive, sensitive to being touched and suffered from a series of medical difficulties. As he grew older his behaviours posed increasing challenges to his parents in their attempt to care for him.

Throughout his childhood and

early youth he was noted to be impulsive, nervous, unpredictable, heedless of danger, accident prone, fidgety, unpredictable, aggressive, untruthful, disrespectful of personal property, having a poor memory and an unrelenting fascination with fire. He also was noted to have delays in developmental milestones and was unable to bond with family members. [ 107 ] By the time Mr. Z. was 11 years old his parents were having serious problems with dealing with his and his brother’s behaviours. Arrangements were made for Mr.

Z. and his brother to move to another community to reside with friends who attempted to provide greater assistance and more concentrated supervision. During this period those friends reported that Mr. Z. attempted to start fires, mistreated and injured their livestock and was caught in suggestive circumstances with young boys. This placement lasted for approximately two years at which time he returned to his parents’ residence. [ 108 ] By the time he was 13, Mr. Z. had become bigger and stronger and harder to manage to the point where his mother was afraid of him.

On one occasion he assaulted his sister and from that point his parents determined they were no longer able to care for him or manage his behaviours and he was placed in the care of the MCFD in whose care he remained through the rest of his youth. [ 109 ] In later interviews Mr. Z. described his parents as being very strict, very religious and very hard-working and that they raised him as best they could, given his behavioural issues. [ 110 ] Although he no longer resided with his parents Mr. Z. had occasional contact with them until his arrest for the Index Offences.

In her evidence his mother described how, on those occasions, Mr. Z. seemed excited about and pleased with his involvement in crime and drugs and his association with gangs showing her his tattoos and describing his criminal involvement. C. EDUCATION [ 111 ] While he resided with his parents Mr. Z.’s education included homeschooling and attending a church run education facility. During those years he received many supportive services including the assistance of a one to one worker while in preschool, daycare and school. Due to his behavioural issues Mr.

Z. was often disruptive in class and his academic performance was, at best, fair. [ 112 ] When he was placed in the care of MCFD Mr. Z. briefly attended a local secondary school and an alternate education program when he was not incarcerated in a youth facility. [ 113 ] Throughout his childhood and youth Mr. Z. was noted to have problems achieving academically despite the many additional resources including learning assistance and individual learning plans provided on a regular basis. He was suspended from school on many occasions for inappropriate behaviour and fighting.

By the time he was 15 he ceased attending any sort of educational program. [ 114 ] While he was residing with his parents he was able to achieve approximately a Grade 4/5 level. His subsequent schooling suggested achievement to about Grade 10. However, testing of his academic ability during his time in the provincial and federal correctional systems indicates that his present level of comprehension of both reading and numbers remains much lower than Grade 10. D. HEALTH [ 115 ] When he was a child Mr. Z. was heedless of danger and accident prone which resulted in many injuries although none of them serious.

When he was quite young Mr. Z. was assessed by a paediatrician who suggested that he may be suffering from Fetal Alcohol Spectrum Disorder (FASD) or Fetal Alcohol Effects (FAE). He was also diagnosed with Attention Deficit Hyperactivity Disorder (ADHD). He was prescribed Ritalin, Dexedrine and Effexor at various times but discontinued those medications on his own concluding they didn’t help. [ 116 ] After he left his parents care and was residing at various times in group homes his health became compromised from the use and abuse of alcohol and drugs.

There were many occasions when he lost consciousness due to excessive alcohol consumption, overdoses from a variety of drugs or head injuries from fighting or being attacked. On other occasions he suffered concussion but did not lose consciousness. He was hospitalized on several occasions as a result of these incidents. There were a few incidents where Mr. Z. suffered delirium and on one occasion a seizure due to drug taking. [ 117 ] Mr. Z. was diagnosed with Hepatitis C and HIV in 2005. Mr. Z. believes he contracted that illness from unsterile intravenous drug use.

During his time in the youth and adult correctional systems he has been offered various prescription drug regimes to assist with his symptoms but he has refused those offers preferring his own regime of attempting to live healthily and remain fit. He is concerned about the inconsistency of treatment in the correctional facilities and how he might be treated by other inmates if his conditions became known to the prison population. Mr. Z. acknowledged that he has never informed any of his sex partners of his compromised medical situation. E. PERSONAL RELATIONSHIPS [ 118 ] Mr.

Z. is estranged from his biological mother and the parents who raised him. He has had some contact with his older brother prior to being incarcerated for these offences. [ 119 ] Both Mr. Z. and Ms. T. maintain that they are involved in a relationship but they had only met a few times in the three weeks before Mr. Z.'s arrest and their contact while he has been incarcerated has been extremely limited. [ 120 ] Mr. Z. was able to maintain a respectful relationship with his grandmother during the times he was not incarcerated and she appears to have a genuine interest in his well-being.

It was to her residence that Mr. Z. moved upon his release from his previous adult sentence and where he'd left from in the days prior to committing the Index Offences. In the past, his grandmother has indicated a willingness to assist Mr. Z. when he is in the community but her age and fragility suggests she would be of little assistance in monitoring his behaviour. [ 121 ] Mr. Z. advised several report writers that he believed he was the father of a son who lives in the Kootenays. He has never met

that child and was uncertain about that child’s paternity. F. EMPLOYMENT HISTORY [ 122 ] Mr. Z. has no formal work history. When not in custody he maintained himself through criminal activity. At various times he stated to report writers that he made his living through a variety of property, violence and drug trade related offences. He also worked as a drug debt collector and in doing so used a variety of physical tactics including breaking bones. He rationalized the use of such force by describing it as "business is business" and that the violence was necessary because it "teaches them a lesson".

He described his drug lifestyle as "it's easiest thing I know, fast way to make cash." [ 123 ] During his time in the provincial adult correctional system he worked at times as a kitchen cleaner, in the laundry or in a shop. Those time periods were often interrupted by Mr. Z.’s breaching the institutions rules and resulting periods of segregation. While in the federal system Mr. Z. worked in the kitchen and was described as a good worker and as an electrical helper where his work was rated fair. G. PAST AND PRESENT ATTITUDE [ 124 ] Not long after his arrest Mr.

Z. was interviewed by his CSC parole officer about the events. Near the end of that interview Mr. Z. told that person that he wanted a good deal, that he would be getting 10 to 15 years and that he didn’t care because he would be getting out before he was 40. [ 125 ] In his presentence comments to the Court Mr. Z. stated that he regretted his actions surrounding the Index Offences and he was glad that no one was injured. He said the life he had lived up to that point was not a life. He hated who he had become, his life was going no where and he had to change.

He regretted that he had burned his bridges with his family because he could no longer talk to them. IX. TREATMENT, ASSESSMENT AND PROGRAMMING A. YOUTH [ 126 ] In February 2001 after he had committed the arson Mr. Z. was referred by his Youth Worker for a psychological assessment. A social history was prepared and he was psychologically assessed by Dr. O'Toole. In his examination Dr. O'Toole found no evidence that Mr. Z. suffered from any major affective disorder or significant thought disorder. At the time of Dr. O’Toole’s examination Mr.

Z. had not suffered any serious head injuries or loss of consciousness. [ 127 ] Dr. O'Toole administered several psychological tests including the Weschler Individual Achievement Test (WIAT), the Weschler Abbreviated Scale of Intelligence (WASI) the Incomplete Sentences Blank, the House-Tree-Person Test (HTPT), the Jesness Inventory and the Million Adolescent Clinical Inventory (MACI). [ 128 ] In summarizing his test results Dr. O'Toole noted that Mr. Z. had some significant intellectual delays which impaired his learning ability, that he was particularly weak in math and writing but less so in reading.

He stated that due to Mr. Z.'s intellectual delays and behavioural problems he would be : "at high risk for continued antisocial and aggressive behaviour. He will probably continue to demonstrate poor boundaries by disregarding the wants and needs of others; will exercise poor judgment socially and will find it difficult to keep up with his peer group and academic achievement... His risk for significant substance abuse problems and like behaviours is high." [ 129 ] In May 2001 while in custody on new charges Mr. Z. was psychiatrically examined by Dr. Peter Constance.

During the time he was at the Inpatient Assessment Unit Mr. Z. was noted to display poor social skills and despite trying to fit in with his peers he was not well accepted. He maintained little contact with staff but was polite and cooperative in those interactions. [ 130 ] During his time at the unit he was medically examined and noted to have impaired vision and a slight hearing problem in one ear. The doctor examining Mr. Z. on that occasion did not find any facial abnormalities indicative of FASD. Dr. Constance agreed that Mr.

Z. did not meet the criteria for FASD but that he had FAE. [ 131 ] After his examination of Mr. Z., Dr. Constance determined that Mr. Z. did not have a major psychiatric disorder but that he did meet the criteria for the Child Onset Conduct Disorder (COCD) with aggressive features. In his conclusion, Dr. Constance said of Mr. Z. "He has a lengthy history of antisocial behaviour. His aggression appears to be increasing and he is reported to be cruel to animals, have an interest in fires and probably has several patterns of paraphilic arousal and behaviour." [ 132 ] For approximately four months in late 2003 Mr.

Z. attended Camp Trapping. During his attendance at that facility Mr. Z.'s behaviour and attitudes improved significantly. Reports from that facility indicate that he expressed an understanding of his criminal behaviour and the catalysts for that behaviour. The closing report from that facility indicated that Mr. Z. had made significant progress and that there was guarded optimism that he would be able to better function in the community. Unfortunately, Mr. Z.'s positive behaviour was short-lived with him returning to drug use and violent criminal behaviour within months. B.

ADULT [ 133 ] There are no indications in the PGRCC records concerning the programming Mr. Z. received during his several stays at that institution. [ 134 ] After being sentenced to a federal penitentiary in May 2006 for the 2005 robbery Mr. Z. was psychologically assessed by Dr. Alard Malek at the Regional Reception Assessment Center (RRAC) as part of the usual classification process for new federal inmates. Dr. Malek gave evidence in the dangerous offender hearing and was qualified as a Psychologist with an expertise in the assessment of

violent and sexual offenders. [ 135 ] In conducting his assessment Dr. Malek interviewed Mr. Z., reviewed the many previous reports prepared on Mr. Z. including reports from Youth Workers, Probation Officers and Parole Officers and the reports prepared by Dr. O'Toole and Dr. Constance in 2001. [ 136 ] As part of his assessment Dr. Malek had Mr. Z. complete the following psychological tests:

a) The Minnesota Multiphasic Personality Inventory 2 (MMPI-2),

b) The Shipley Institute of Living Scale (SILS), and

c) The Test of Nonverbal Intelligence 3 (TONI-3) [ 137 ] Dr. Malek also administered to Mr. Z. actuarial measures for risk of future violence including:

a) The Hare Psychopathy Checklist Revised (2003) (PCL-

R) and

b) The Violence Risk Appraisal Guide (1998) (VRAG) [ 138 ] In reviewing the circumstances of the robbery with Mr. Z. Dr. Malek noted that Mr. Z. had little empathy for his victims experience, had no remorse for his offending and minimized his responsibility. He also noted that the variety of sentences imposed on Mr. Z. both as a youth and adult combined with his ongoing criminal activity had little impact in promoting pro-social behaviour. [ 139 ] In reviewing the psychometric tests completed by Mr. Z. Dr. Malek determined that the MMPI-2 produced a doubtful profile due to the likelihood that Mr.

Z. may not have adequately understood the nature of the questions posed. The results of the SILS indicated low intellectual ability but Dr. Malek questioned those results concluding that Mr. Z. may not have had sufficient reading skills to properly complete that task. The results of the TONI-3 indicated that Mr. Z. was of average intelligence. The conflicting results indicated to Dr. Malek that although Mr. Z. may have intellectual ability to understand and benefit from programming his limited reading skills may interfere with his ability to learn program materials that require reading and self-study. [ 140 ] Dr.

Malek concluded that given the differing test results and the historic information provided that Mr. Z. may suffer from more significant problems including neuropsychological deficits and impaired cognitive functioning. [ 141 ] In reviewing the actuarial measurements of risk Dr. Malek noted the PCL-R score of 29 indicated that Mr. Z. was at a high range for future difficulties including violence and the VRAG score of 28 indicated he was in at high risk for violent recidivism in comparison to other male prison inmates.

Such a score often relates to a 100% chance that the person will violently reoffend over a seven-year or 10 year period. Overall, Dr. Malek concluded that Mr. Z. was at a high risk to reoffend violently and generally. [ 142 ] Dr. Malek also noted that although substance abuse played a role in Mr. Z.’s offending it was not a primary causal component of his criminal conduct. [ 143 ] After reviewing his testing results and the results contained in previous reports on Mr. Z. Dr. Malek concluded: "Consequentially, a neuropsychological assessment of Mr. Z. is essential at this time.

Knowledge of neuropsychological deficits/non- deficits may provide some insight into his learning problems and cognitive difficulties, and help identify treatment programs and supervision strategies helpful in managing his risk for violent and general recidivism." [ 144 ] During his time in the federal penitentiary system Mr. Z. was never given a neuropsychological assessment. A federal parole officer noted in her evidence that it was not unusual but typical that such assessments were not completed.

Another CSC official noted in his evidence that there was very little funding available to conduct the type of neuropsychological assessment urged by Dr. Malek. [ 145 ] Other assessments of Mr. Z. while in the federal penitentiary system indicated that his Reading was at a Grade 5.6 level, his Numbers Operation was at a Grade 4.5 level, and his Vocabulary was at a Grade 8.5 level. [ 146 ] During his time at the federal penitentiary Mr. Z. participated in the Aboriginal Offenders Substance Abuse Program.

His attendance in that program was inconsistent and although he was given a completion certificate reports indicate that he benefited little from the program. In later statements Mr. Z said he was intoxicated during many of the sessions. [ 147 ] Near the end of his time in the federal penitentiary Mr. Z. took

part in the In Search of Your Warrior program. His participation in the program was not completely satisfactory but he received an Attended All Sessions certificate rather than a completion certificate. That program ended on July 20, 2007. [ 148 ] Mr. Z. also participated in the National Employability Skills Program and at various times in Adult Basic Education. He applied for other programming for which he was waitlisted but unable to attend due to programming limits and his relatively short time in the penitentiary. [ 149 ] Prior to his release Mr.

Z. requested and was offered the opportunity to attend Tsow Tun Le Lum, an aboriginal focussed treatment facility near Nanaimo but shortly before his release he refused to attend. He was also offered the opportunity to attend the Kenneth Creek Camp, a forestry based halfway house facility approximately 80 kilometres from Prince George but he refused. He moved to Prince George to reside with his grandmother. X. PSYCHIATRIC DIAGNOSES AND RISK TO REOFFEND [ 150 ] Three eminently qualified experts who examined Mr.

Z. after his arrest for the Index Offences were called to give evidence in the dangerous offender hearing. Each of them had been retained to perform similar assessments in dangerous offender proceedings on

many previous occasions. Each of them applied different tests and analyses to Mr. Z.’s situation and each explained their reasoning for using the methods they chose to employ. [ 151 ] Although they did not agree with one another with regard to Mr. Z.’s diagnosis and prognosis their reports and subsequent oral evidence were objective, fair, comprehensive and of value to resolving the issues in this matter. [ 152 ] All of the experts had available to them the volumes of documentation maintained by various entities on Mr. Z.’s history, actions, behaviours and previous assessments.

In addition they all interviewed Mr. Z., and in one case, other persons. [ 153 ] Mr. Z. was noted by all three experts to be polite, cooperative and generally forthcoming and not at all aggressive, threatening or intimidating. In all the interviews Mr. Z.’s responses to questions were initially short and often monosyllabic and he required some encouragement to elaborate on many topics. [ 154 ] All the experts noted that during their interview Mr. Z. was oriented to time, place, person and situation.

He did not exhibit any features of psychotic illness such as schizophrenia, mania, depression, anxiety, hallucinations or delusions or any phobias or paranoia. His ability to describe his emotions or that of others was noted in all interviews to be quite limited. [ 155 ] All the experts noted that Mr. Z. presented as someone with limited intellectual and cognitive capacities. He had limited vocabulary and an inability to understand or formulate abstract or complex thoughts; usually responding with concrete and simplistic speech and answers. [ 156 ] During the three interviews, Mr.

Z.’s explanations of his personal background, lifestyle, criminal history and his version of the Index Offences were not consistent in many respects. The experts expressed the concern that Mr. Z.’s recollections of past events were limited due to the several contributing causes to his cognitive deficits. A. DR. ZOFFMANN [ 157 ] Dr. Elisabeth Zoffmann was appointed by the Court pursuant to an assessment order made under s. 752(1) of the Code . She was qualified as an expert in Forensic Psychiatry including risk assessment and risk management.

Her Dangerous Offender Assessment dated March 31, 2009 was filed as an exhibit. She interviewed Mr. Z. for five hours. [ 158 ] In her report Dr. Zoffmann noted that Mr. Z. stated that:

a) he recognized the harm he caused to his parents and Mr. K. in the commission of the index offences;

b) he does not believe he has suffered any significant health consequences from his drug use;

c) he has been trying to remain largely drug free while on remand for these matters. [ 159 ] Dr. Zoffmann provided the following diagnosis of Mr.

Z.’s mental health utilizing the American Psychiatric Association Diagnostic and Statistical Manual TR-IV as follows: Axis I Polysubstance abuse and dependence – in enforced remission (insofar as the correctional services are able to screen out access to drugs and alcohol); Adult antisocial behaviour; and Attention-deficit hyperactivity disorder – in partial remission Axis II Borderline intellectual functioning; and Multiple learning problems Axis III Fetal Alcohol Effects/Syndrome; Multiple head injuries; Probable brain injury related to cocaine and Ecstasy abuse; and Rule out brain injury secondary to drug overdoses and anoxia. (Dr.

Malek’s recommendation for neuropsychological testing is echoed at this point). Axis IV & V – not relevant [ 160 ] Like Dr. Malek had Dr. Zoffmann administered the Hare PCL-R and the VRAG actuarial risk assessments on Mr. Z. She described their usefulness and limitations and how ongoing research has influenced the accepted effectiveness of those tools. She noted that there was no strictly determined method of combining professional judgement and actuarial risk factors in arriving at any conclusions.

[ 161 ] On the PCL-R assessment Dr. Zoffmann scored Mr. Z. at 26.7 +/- 3 which gave a percentile rank of 70 which she interpreted as Mr. Z. having an average to slightly higher than average level of psychopathic features relative to other male offenders. She noted that such scores are considered moderate with respect to prediction of future violent recidivism. In reviewing the two major sub factors Mr. Z. was rated in the 40 th percentile for personality characteristics and the 91 st percentile for behavioural characteristics which Dr. Zoffmann related to Mr.

Z.’s impulsivity and inability to think through the consequences of his behaviour. [ 162 ] On the VRAG assessment Dr. Zoffmann scored Mr. Z. at 27 which translated to a 76% to 82% risk of violent recidivism over seven years. She noted that this risk perception should be modified due to Mr. Z. relatively young age and organic brain factors. [ 163 ] While concluding that, Mr. Z.’s PCL-R and VRAG scores indicated that he was in the moderate-to-high to high risk for violent recidivism Dr. Zoffmann noted the following factors should also be considered:

a) significant factors in his scores are due to organic brain issues which suggests further evaluation and neuropsychological testing would be important;

b) although the index offences involved impulsivity, dangerousness and violence his past history of violence was not substantial;

c) the actuarial risk instruments do not account for the presence of intoxication during the commission of the offences and that Mr. Z. was intoxicated during the two violent adult offences he has committed;

d) maintaining drug abstinence and absence from the drug culture would be a significant benefit in managing Mr. Z.’s recidivism risk;

e) Mr. Z.’s attachment to his blood relatives and his parents is another dynamic factor to consider;

f) treatment of Mr. Z.’s viral illnesses affects his risk for recidivism. [ 164 ] Under the heading Structured Professional Judgment Dr. Zoffmann stated: In

summary, I am of the opinion that Mr. Z. is presently at moderate-high to high risk of violent recidivism. Increasing age, abstinence, regular employment, establishment of supportive relationships and other dynamic factors would moderate that risk estimate downward. To be more specific, his risk of violent recidivism at the end of a substantial period of incarceration is likely to be lower than it is at present. [ 165 ] Dr. Zoffmann then went on to comment on treatment issues for Mr.

Z. saying his treatment would be limited by his poor reading skills, that he might benefit from a medication regime and that an appropriate treatment programming would be best addressed by the CSC. [ 166 ] Under the heading Possibility of Community Management Dr. Zoffmann described two possible outcomes for Mr. Z.: Thus, if Mr.

Z was managed in the following context: placement in a supervised facility, provision of intensive case management and observation, maintenance of abstinence from drugs and alcohol, engagement in rewarding work and re-establish significant relationships, his risk for violent recidivism would fall to within the normative range for other offenders of his peer group . That is, the average violent recidivism rate of violent federal offenders ranges between 10% and 15% over the first five years of time and opportunity.

On the other hand if there is a lack of significant psychosocial support, the presence of antisocial peers and return to drug and alcohol abuse, Mr. Z is at high risk of violent recidivism. [ 167 ] In her direct evidence Dr. Zoffmann did not always agree with the Crown’s suggested inferences that might be drawn from her report. She did however agree that even at an age of 39 or older, given Mr. Z.'s scores on the risk assessments she performed his risk for reoffending violently would only drop to between 55% and 64%. She also agreed that the violence exhibited in the Index Offences was an escalation over Mr.

Z.'s previous criminal history and that the use of weapons, particularly firearms, dramatically increased the dangerousness of the situation. [ 168 ] Although she agreed with the Crown’s suggestion that Mr. Z. had not shown a de-escalation of violence she noted that he had not had much opportunity to do so and that recent prison logs showed less violent behaviour. She did agree that there was no way to tell if Mr. Z.’s level of violence was still escalating, had peaked or was de-escalating. She noted that Mr.

Z.'s lower-level of violence in an institutional setting could be due to four factors; the daily structure, clear lines of authority in the institution, lack of drugs and lack of having to make decisions. [ 169 ] She did agree with the Crown's contention that Mr. Z. making a living through violence was a concern and that he had a level of comfort with living in a violent environment. She also agreed that Mr.

Z.'s refusal of further treatment upon his earlier release from custody could be a negative indicator and noted that his inability to understand that he needed help was probably related to his cognitive issues. She also noted that Mr. Z. believes that he'll go back to a life of crime and die of his HIV infection. [ 170 ] She agreed with the Crown’s contention that upon release Mr.

Z. would have great difficulty in the community without the provision of numerous resources, that he would need to be in a closely supervised facility and abide by all the terms placed on him, that he would need a lot of support and he would have to be prepared to apply a lot of effort to succeed. [ 171 ] Under cross-examination, Dr. Zoffmann said that the opinion set out in her report was not modified by her review of Dr. Lohrasbe’s or Dr. Nicholaichuk’s reports and agreed that her report might stale dated. She noted that she disagreed with Dr. Lohrasbe’s conclusions. [ 172 ] Dr.

Zoffmann also commented on her concerns surrounding the difficulties in assessing persons in the dangerous offender process. These included:

a) the ethics of making an opinion about future behaviour and putting a person into a risk class rather than a percentage of future offending;

b) once a person is put into a risk class targeted services can be provided;

c) there are often difficulties with risk assessment;

d) the dangerous offender designation is unequally applied; some long-term violent offenders are not found to be dangerous but sometimes spectacular offences result in a dangerous offender application;

e) dynamic factors can only be assessed by regular contact and analysis requiring ongoing information on the subject. [ 173 ] When asked about whether or not Mr. Z.'s aboriginal background would make a difference to his future offending risk assessment, Dr. Zoffmann commented that risk assessment tools are normalized on a multiple population basis that there is nothing special about aboriginal offenders that might alter the risk calculation made. [ 174 ] In submissions the Crown was critical of Dr. Zoffmann's assessment in a number of areas, primarily with regard to the past history of Mr.

Z., by relying on the statements of Mr. Z. and Ms. T. in coming to conclusions about the Index Offences. The Crown also submitted that Dr. Zoffmann had incorrectly scored Mr. Z.'s rating on the VRAG and PCL-R actuarial tools because she had misinterpreted some of his answers and the information she reviewed. The Crown contended that had she properly scored those two actuarial tools Mr. Z. would have scored a 30 on the VRAG which corresponds to a 100% chance of violent recidivism within seven and 10 years and the PCL-R score would have been closer to that of Dr. Malek's. B. DR. LOHRASBE [ 175 ] Dr.

Shabehram Lohrasbe was called by the Crown. He was qualified as an expert in Forensic Psychiatry including the assessment, treatment and management of violent offenders in the community. His Psychiatric Assessment dated December 3, 2009 was filed as an exhibit. He reviewed the preliminary inquiry transcripts and Dr. Zoffmann’s report. He interviewed Mr. Z. for three hours. [ 176 ] In his report Dr. Lohrasbe noted the following with regard to Mr. Z.:

a) he comes across as remarkably immature;

b) he acts reactively on the basis of immediate situational demands and quickly loses sight of context or consequences;

c) he did not appear remorseful in demeanour generally but he did speak of his regret of the harm he caused his parents and Mr. K. and how he had let his parents down. Those expressions appeared genuine but were fleeting;

d) he acknowledged a fascination with fire;

e) he admitted what he described as experimenting a bit sexually with children and denied any sexual activity or cruelty to animals. Dr. Lohrasbe found those denials unconvincing;

f) his preoccupation with working out and avoiding drugs appears to be primarily based on his attempt to forestall the symptoms of HIV or Hepatitis C;

g) he acknowledged participating in the In Search of Your Warrior Program but didn't recall much of it;

h) he also participated in the Native Substance Abuse Program but acknowledged that he was high during the program and did not recall it;

i) he also referred to the Native Spirituality Program stating that it helped him a lot but he could not remember how. [ 177 ] Dr. Lohrasbe provided the following diagnosis of Mr. Z.:

a) After a review of possible damage arising from prenatal exposure to substances, Fetal Alcohol Spectrum Disorder (FASD);

b) Likely applicable childhood diagnoses included Conduct Disorder, Attention Deficit Hyperactivity Disorder (ADHD) and various Learning Disorders;

c) Borderline Intelligence;

d) As an adult Antisocial Personality Disorder and Substance Abuse/Dependence Disorders with accelerated cognitive decline due to multiple head injuries and possible brain injury secondary to drug overdoses. [ 178 ] Dr. Lohrasbe applied the Historical, Clinical, Risk Management 20 (HCR-20) risk assessment tool to Mr. Z describing it as the most appropriate for him.

Of the 20 risk factors concerning previous violence, age at first violence, relationship instability, employment problems, substance abuse, major mental illness, psychopathy, early maladjustment, personality disorder, prior supervision failure, lack of insight, negative attitudes, active symptoms of major mental illness, impulsivity, unresponsiveness to treatment, lack of feasible plans, exposure to destabilizers, lack

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