Her Majesty the Queen - v. -, 2016 SKPC 122

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 122 Date: September 23, 2016 Information: 24460597, 24493536 & 24460552 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Clinton Jay Burnouf Appearing: Ms. Michelle Baldwin For the Crown Ms. Kathy Hodgson-Smith For the Accused DECISION E. KALENITH, J INTRODUCTION [ 1 ] Clinton Jay Burnouf pleaded guilty to charges of aggravated assault, making child pornography and breach of recognizance. The Crown seeks to have Mr.

Burnouf declared a dangerous offender and receive a sentence of jail for an indeterminate period. Defence counsel takes the position that he is not a dangerous offender and, if he is, he should be sentenced to a determinate sentence. [ 2 ] I find that Mr. Burnouf should be declared a dangerous offender and receive a determinate sentence followed by a long-term supervision order. These are my reasons.

ISSUES [ 3 ] The following issues have been raised in this case:

a) Does Mr. Burnouf meet the criteria for a dangerous offender declaration under s. 753(1)(a)? i. Is this a serious personal injury offence under s. 752? ii. Is there a pattern of offending as contemplated by s. 752?

b) If Mr. Burnouf does not meet the test of being declared a dangerous offender, does he meet the criteria to be declared a long-term offender? i. Is the appropriate sentence one of two years or more? ii. Is there a substantial likelihood of reoffending? iii. Is there a reasonable possibility of eventual control in the community?

c) What is the appropriate sentence for both offences? ANALYSIS [ 4 ] The Crown does not rely on s. 753(1.1) (presumptive dangerous offender) and the application is not made under s. 753(1)(a) (iii) (brutal nature of the offence) or s. 753(b) (serious personal injury/sexual assault), and so I will not address them.

a) Does Mr. Burnouf meet the criteria for a dangerous offender declaration under s. 753(1)(a)? [ 5 ] In this case, for Mr. Burnouf to be found to be a dangerous offender, I must find that:

a) he committed a serious personal injury offence as defined in paragraph (

a) of the definition of that term in s. 752 of the Criminal Code (the Code ) and that he constitutes a threat to the life, safety or physical or mental well-being of others based on evidence establishing: i. a pattern of aggressive behavior showing a failure to restrain his behavior and a likelihood of causing death or injury or inflicting severe psychological damage on victims through a future failure to restrain his behaviour (s. 753(1)(a)(i)) or ii. a pattern of persistent aggressive behavior showing a substantial degree of indifference to the reasonably foreseeable consequences to others of his behaviour (s. 753(1)(a)(ii)). i.

Is this a serious personal injury offence under s. 752 ? [ 6 ] Mr. Burnouf pleaded guilty to aggravated assault on his partner. After a sentencing hearing, I found that Mr. Burnouf, while under the influence of alcohol, beat L.W. with his fists, causing a broken nose and bruising to her shoulder, arm and back. He also used a knife and cut her left ear, left side of her nose and forehead, requiring stitches.

[ 7 ] This offence is a serious personal injury offence as required in that it involved the use of violence and can result in a sentence of imprisonment of 14 years. ii. Is there a pattern of offending as contemplated by s. 752 ? [ 8 ] The onus is on the Crown to prove, beyond a reasonable doubt, that the present offence is a continuation of a pattern that demonstrates Mr. Burnouf’s failure to restrain violent behaviour that will likely continue or his substantial indifference to the reasonably foreseeable consequences of that behaviour to others. [ 9 ] I am guided in this determination by the following principles:

a) Generally the evidence to be considered will be the offender's past criminal record, extrinsic evidence relevant to those acts and the surrounding circumstances and relevant expert evidence - R v Neve , 1999 ABCA 206 [ Neve ];

b) The relevant expert evidence is to be considered in deciding whether there is a pattern and whether, as a whole, it proves dangerousness – Neve , paragraph 23 ;

c) The pattern of repetitive behaviour that includes the present offence must contain enough of the same elements of unrestrained dangerous conduct to be able to predict the offender will likely offend in the future. This will ensure a level of gravity is the same and that the last straw is not a much more minor infraction – R v Hogg , 2011 ONCA 840 ;

d) The pattern need not equate to similar fact evidence – general similarity is sufficient. There need not be a lengthy history of violence or aggression for a pattern, as long as there are sufficient elements of similarity in the offender’s behaviour – R v Casemore , 2009 SKQB 306 ;

e) The past incidents must be criminal in nature – Neve , paragraph 109 ;

f) Violent conduct as a youth may be considered – R v Knife , 2015 SKCA 82 [ Knife ];

g) The offences need not be serial offences and the offender’s behaviour need not be intractable for a pattern to be made out. Intractability ceased to be a requirement with the 1997 amendments – R v Szostak , 2014 ONCA 15 , paragraphs 47-55 and R v McCallum , 2016 SKCA 96 , paragraph 45 ;

h) Similarities may be in the type of offences and the degree of violence used – Knife , paragraph 67 ;

i) The degree of violence is the same as the nature of violence – Knife , paragraph 69 . [ 10 ] Mr. Burnouf’s criminal history of violence is made up of the following convictions:

a) August 5, 2003 – s. 266 and 267 (

a) of the Code – Assault and Assault with a Weapon – Youth Offence These offences occurred on March 24, 2002. Mr. Burnouf, while intoxicated, stabbed his girlfriend once in the back and stabbed her twice more, penetrating only her clothing. A witness intervened and sustained injuries. Both victims attended the local clinic, were treated and released, having suffered minor injuries;

b) June 8, 2004 – s. 264.1(1) (

a) of the Code – Uttering Threats, s. 267(

b) of the Code – Assault Causing Bodily Harm and s. 267(

b) and s. 264.1(1)(

a) of the Code - Assault Causing Bodily Harm and Uttering Threats

The first offence occurred on April 7, 2004. After being pushed from a residence where he was trying to make calls to arrange a ride home, an intoxicated Mr. Burnouf threatened the victim that he would get a gun and shoot him. The second offence occurred on June 1, 2004. Mr. Burnouf, while intoxicated, punched the victim several times in the eye and ear when the victim tried to break up a fight between Mr. Burnouf and his brother. Mr. Burnouf was later restrained by the victim at which time Mr. Burnouf bit the victim on the chest, bicep and wrist. The other offences occurred on June 5, 2004. Mr.

Burnouf, while under the influence of alcohol, punched his girlfriend in the face, choked her and stabbed her twice in the arm with a pen. He also threatened to kill any guy he ever sees her with. She suffered injuries including bruising around both eyes and cheeks and her neck, two scratches on her neck, two puncture wounds on her right arm and a chipped front tooth. Mr. Burnouf was on probation at the time of these offences;

c) March 14, 2006 – s. 267 (

b) of the Code – Assault Causing Bodily Harm This offence occurred on September 3, 2005. Mr. Burnouf, while intoxicated and on day parole, punched the victim in the head and face, having met her the day prior and having had intimate relations. She required sutures to her ear;

d) March 27, 2009 - s. 266 of the Code – Assault and s. 267(

b) of the Code – Assault Causing Bodily Harm Both offences occurred in July, 2007. In the assault, Mr. Burnouf backhanded his fiancée in the face causing her to fall into a guitar and cut her lip. A few days later he punched her in the face six times over a period of four hours and would not let her leave the room they were in. The victim had several injuries including cuts on her face and nose, a scrape on her arm and a bruise behind her left ear. She bled extensively;

e) March 3, 2014 – s. 266 of the Code - Assault This offence occurred on October 8, 2010. Mr. Burnouf, while serving a sentence at the Saskatchewan Penitentiary, shoved an inmate who had been assaulted by another, punched him and held him from exiting the gym area where this occurred. The inmate then became the victim of an aggravated assault by Native Syndicate inmates;

f) June 20, 2014 – s. 268 of the Code - Aggravated Assault This offence occurred on September 8, 2012. The facts are described above in paragraph 6. [ 11 ] The defence argues that convictions for harassing phone calls in 2000, uttering threats from April, 2004, first assault causing bodily harm in 2004, assault in 2014 and making child pornography in 2014 do not comprise part of Mr.

Burnouf's pattern of behaviour because they either do not involve the use of force, did not involve a domestic relationship or, in the case of the pornography charge, was a sexual offence involving a child and thus unlike the other offences alleged to be part of the pattern. [ 12 ] I find that the uttering threats, assault and assault causing bodily harm charges are part of the pattern, and are mentioned above, but the others are not.

I find that all of the offences of violence or aggression, whether domestic or not, are capable of being part of a pattern of behaviour that could show a failure to restrain behaviour or an indifference to the foreseeable consequences to others. The other offences listed by the Crown in their brief, and the other convictions on Mr. Burnouf's criminal record, do not contain these characteristics in that they are not offences of violence or aggression and thus are not part of the pattern alleged.

[ 13 ] Dr. Shabehram Lohrasbe was qualified as an expert in the field of forensic psychiatry to give opinion evidence on the assessment and treatment of violent offenders, including assessment of future risk and the possibility of eventually controlling that risk in the community. [ 14 ] Dr. Lohrasbe testified that Mr. Burnouf's history indicates a pattern of violence, with domestic violence while under the influence of alcohol being the most prominent form. He concluded from his assessment of Mr. Burnouf that Mr. Burnouf is at high risk to inflict violence on future intimate partners.

He reported that in the foreseeable future Mr. Burnouf will pose a high risk for spousal violence and the consequences for a future victim could be serious. [ 15 ] Dr. Terry Nicholaichuk was qualified to give opinion evidence in clinical psychological assessment and diagnosis in relation to criminal risk assessment for future violence, treatment of learning disabilities and mental disorders and the possibility of eventual control of that risk in the community and specifically, as those factors relate to Clinton Burnouf. [ 16 ] Dr. Nicholaichuk stated that risk is conditional on environment. He assessed Mr.

Burnouf's risk of reoffending as 30% over the period of 4.5 years after release. He thinks this can be changed with appropriate intervention and treatment. He thinks Mr. Burnouf has never received effective treatment. [ 17 ] Mr. Burnouf was diagnosed with Borderline Personality Disorder. Both experts testified that treatment for this involves dialectical behavioural therapy (DBT), something presently not offered by the Correctional Service of Canada. Dr. Nicholaichuk thinks that this condition reduces with age, especially for persons in their 30's and 40's. Mr. Burnouf is 31 years old.

Both experts also believe that, in Mr. Burnouf's case, addictions treatment, anger management and intimate relationship issues need to be addressed. [ 18 ] Mr. Burnouf has been subject to community sentences many times. In 1999 and 2003 he was sentenced to probation for youth offences, each of which resulted in several breaches and no community programming due to swift reoffending and eventual custodial sentences. In 2003 while incarcerated in a provincial correctional centre he attended addictions education and the St. Louis alcohol treatment facility. [ 19 ] In 2004 Mr.

Burnouf was sentenced to 2 years jail in a federal penitentiary. During this sentence he successfully completed programming in family violence, substance abuse and native awareness. His security rating was reduced from medium to low and he was released on day parole in July, 2005 which was suspended in September, 2005 after violating his abstention clause, breaching his curfew and committing an assault causing bodily harm. He, as a result, was convicted in 2006 and sentenced to 2 years jail consecutive. [ 20 ] Mr.

Burnouf had programming for family violence maintenance and education upgrading during this sentence. He was released on statutory release in July, 2007 but was arrested after 19 days and his release was suspended. He was sentenced in March, 2009 to 2 years 6 months jail consecutive for offences occurring during this time. [ 21 ] Mr. Burnouf completed the aboriginal family violence program in 2010. He was released on his warrant expiry in October, 2011 and committed the present offences in September, 2012. [ 22 ] The Crown submits that the nature of the convictions on Mr.

Burnouf’s criminal record demonstrate a failure to restrain behavior in a manner which is likely to cause, and has already caused, injury to a victim. The Crown as well submits that Mr. Burnouf has continually failed to restrain his behaviour by becoming intoxicated, angry and violent and this has caused injury to his victims. [ 23 ] The defence submits that the evidence shows that Mr. Burnouf can be treated with proper interventions and that he is not intractable. The defence further submits that even without treatment there is a reasonable likelihood that Mr.

Burnouf would not reoffend, given his risk assessment outcomes and that the core issues for Mr. Burnouf will subside in the next decade given his age. [ 24 ] I find that the evidence does show that Mr. Burnouf has committed several violent domestic violence offences, including the present conviction for aggravated assault, and that his risk to reoffend remains high because:

a) he has continued this pattern of offending despite treatment for violence and additions, a pattern which has involved offences soon after release;

b) he has a lengthy criminal record, attached as Appendix A, which shows many breaches of release conditions and court orders;

c) he has quickly reoffended after release despite seemingly successful treatment and an expressed commitment to change; and

d) his long-standing issue of addictions, and his diagnosis of borderline personality disorder, which have yet to be treated. [ 25 ] While Dr. Nicholaichuk thinks the risk is relatively low and that it reduces with age, I find this to be speculative, given the lack of successful treatment for Mr. Burnouf to date. [ 26 ] As a result, I declare Mr. Burnouf to be a dangerous offender. In doing so, I have considered Mr. Burnouf's personal circumstances as an aboriginal offender, including that he grew up in a family with addictions and domestic violence issues. This, however, does not change my assessment as to the risk that his pattern of offending, and personal circumstances, show.

b) What is the appropriate sentence? [ 27 ] Section 753(4.1) of the Code requires that I impose an indeterminate sentence unless I find there is a reasonable expectation that a lesser sentence (a sentence with or without a long-term supervision order of up to 10 years) will adequately protect the public against Mr. Burnouf committing murder or a serious personal injury offence. [ 28 ] Mr. Burnouf is a Metis person with cultural and family connections to Beauval, Saskatchewan.

He had ongoing exposure to domestic violence as a child and pre-teen, transience during his childhood including time in Social Services' care, experience with excessive parental discipline as a child, exposure to drug and alcohol abuse in the family home as a child and his own substance abuse issues as an adult. [ 29 ] Mr. Burnouf has been remanded in custody since September, 2012. While there, he has been held in segregation at his request. He has also formed a relationship with Shana Roy of Beauval, who he plans to continue to be in a relationship with on his release.

He expresses a commitment towards taking any programming needed and has made contacts with various resources in Prince Albert to meet his programming needs. [ 30 ] As an aboriginal offender, Mr. Burnouf’s background must be considered under s. 718.2 (

e) of the Code . As such, I am to consider the extent to which Mr. Burnouf’s unique circumstances bear on his moral culpability and to determine how taking a restorative approach might limit or reduce the sentence of jail imposed while still meeting the sentencing objectives: R v Chanalquay , 2015 SKCA 141 . [ 31 ] The Crown submits that an indeterminate sentence is necessary because:

a) no lesser sentence will adequately protect the public;

b) Mr. Burnouf has served three federal penitentiary sentences, has taken the most intensive and relevant treatment programs available and has expressed his commitment to treatment and not re-offending, and has violated his release by reoffending quickly upon release, resulting in sentences served to the date of warrant expiry;

c) the present offences were committed while on supervised bail for an offence which occurred while he was a serving prisoner; and

d) the experts state that DBT is needed to treat his borderline personality disorder, and, in particular, Dr. Lohrasbe stated that abstinence and not entering into an intimate relationship are conditions for Mr. Burnouf to be managed in the community. This one-on- one counselling for DBT is not available through Correctional Services Canada (CSC). Evidence from Mr. Gonzo of CSC was that residence clauses are rare on long-term supervision orders and he has yet to see a condition imposed that a person stay away from a community. As Mr. Burnouf plans to continue his present relationship with Ms.

Roy and move to Beauval, where his treatment options are limited, the Crown submits that it is not a reasonable expectation but only a mere possibility that Mr. Burnouf is manageable in the community such that he will not endanger the public. [ 32 ] I find that there is a reasonable expectation, which is more than a mere possibility, that Mr. Burnouf's risk in the community can be managed in a way that does protect the public for the following reasons:

a) Dr. Lohrasbe and Dr. Nicholaichuk testified that Mr. Burnouf' is treatable, and his risk in the community is manageable, if he maintains sobriety and receives treatment for intimacy issues and his borderline personality disorder;

b) Mr. Burnouf can receive a sentence that affords him the benefit of CSC treatment for addictions, anger management and intimacy issues which, while not being all he needs given its group nature which is not the best for his needs, will reduce the risk he presents on release and gradually remove his restrictions such that further DBT treatment will be most effective;

c) further programming and delay of his eventual release into the community, including the need that he integrate from segregation to increased contact with others, will reduce the risk he presently represents;

d) his commitment to sobriety, which he has maintained since 2012 and which he knows to be vital to his remaining in the community, together with his commitment to taking any programming needed, has a greater chance of success given the impact of these proceedings and the evidence from Dr. Lohrasbe that this will have a lasting effect on his commitment and recognition that this is a "last chance" for him; and

e) the availability of resources in Prince Albert and elsewhere will address his ongoing needs for addictions treatment and personal counselling (some of which resources Mr. Burnouf has made contact with for support and help while he is remanded in custody) and his commitment to live where treatment is available. [ 33 ] The offences are ones for which deterrence and denunciation are primary factors. This case is aggravated by Mr. Burnouf's use of a knife, his lengthy prior criminal record and the lasting physical and emotional harm to the victim.

It is mitigated by his guilty plea to all charges and his expressions of remorse which I find to be sincere. [ 34 ] The Crown submits that, if a determinate sentence is to be imposed, a sentence of 10-12 years in jail is appropriate for the aggravated assault charge. The defence submits that the range of sentence for aggravated assaults was 18 months to 6 years jail before 2012, with most cases falling in the three year range.

The defence, further, submits that after 2012 the range is four to eleven years, and that this offence should fall at the lower end, in the five year range. [ 35 ] Sentencing is an individualized process which must consider all of the principles of sentencing enunciated in sections 718 to 718.2 of the Code . I find that the aggravating factors in this case including the use of a weapon, lasting victim impact, the commission of the offence while on bail and Mr. Burnouf's lengthy criminal record for violence and other offences raise this to the medium to the higher end of the range.

I find that a sentence of seven years imprisonment is appropriate for this offence, less remand time. [ 36 ] Mr. Burnouf has been remanded since September, 2012 for a period of slightly longer than four years. I find, as the Crown acknowledged, that proper application of R v Summers , 2014 SCC 26 and R v Cote , 2016 SKQB 649 , should result in Mr. Burnouf receiving enhanced credit for his time in remand.

I find that credit of five years is appropriate here because his subsequent detention resulted from his commission of a serious violent offence. [ 37 ] I find that a long-term supervision order is also required to adequately protect the public. This will be for a period of seven years given the lengthy period of violent offending that he has shown. [ 38 ] For the child pornography charge, this involved Mr. Burnouf taking graphic sexual photographs of the seven year old

daughter of the victim of the aggravated assault, who Mr. Burnouf was in a relationship with. This occurred shortly before the aggravated assault. Mr. Burnouf took these photos in response to the child's mother having disclosed a fear that someone would take sexual images of her daughter and publish them on the internet. When the mother threatened to terminate her relationship with Mr. Burnouf, he told her about the photographs and threatened to publish them unless she remained in a relationship with him (such threat occurring while he was remanded for assaulting her).

A search warrant was executed and seventeen images were located in the deleted contents of Mr. Burnouf's computer. Mr. Burnouf deleted the photographs the morning after they were taken. Mr. Burnouf stated that he did not intend to, and did not know how to, retrieve the images after they were deleted. [ 39 ] This offence carries a mandatory minimum sentence of one year. It is aggravated by the breach of trust, the endangerment of the victim as a means of controlling her mother, the touching of the victim that occurred while taking the pictures to facilitate taking them, the offences occurring while Mr.

Burnouf was released on bail and his lengthy criminal record. It is mitigated by his guilty plea. [ 40 ] While the facts of this offence put it at the lower end of the range of seriousness for this offence, his criminal record, personal circumstances and the sentencing principles, including totality lead me to find that a sentence of 18 months jail consecutive is appropriate for this offence. [ 41 ] I thus impose the following sentence:

a) Information 24460597 i. Count 1 - aggravated assault – 7 years jail less credit of 5 years (for 4 years of time served) – leaving a sentence of 2 years jail consecutive to be served, to be followed by a long-term supervision order for 7 years; • a DNA order in From 5.03 pursuant to

section 487.051 of the Code ; and • a weapons prohibition order for life pursuant to

section 109 of the Code . ii. Count 5 - breach of recognizance – 3 months jail concurrent.

b) Information 24493536 i. Count 2 - making child pornography – 18 months jail consecutive; • an order requiring compliance with the Sex Offender Information Registry Act for 20 years pursuant to

section 490.012 of the Code ; and • an order of forfeiture of the laptop computer, cell phone and Micro SD card, pursuant to

section 164.2(1) of the Code

c) Information 24460552 i. Count 2 - breach of recognizance – 3 months jail concurrent. ii. Count 4 - breach of recognizance – 3 months jail concurrent. [ 42 ] I have considered but denied the Crown's request for a prohibition order under

section 161 of the Code . Given the isolated nature of the present pornography offence, Mr. Burnouf's unrelated criminal record and the expert evidence suggesting that there are no programming needs relating to this type of offending such as to suggest that children are endangered by Mr. Burnouf, I decline to impose this order. [ 43 ] I waive victim fine surcharges for all offences because I find that it would cause undue hardship to require them to be paid in this case.

[ 44 ] I order that my reasons for sentencing, together with all exhibits, assessments, required transcripts and documents be forwarded to the Correctional Service of Canada. Dated this 23rd day of September, A.D. 2016, at the City of Prince Albert, in the Province of Saskatchewan. __________________________ E. Kalenith, J