Her Majesty the Queen - v. -, 2011 SKPC 176

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 176 Date: November 14, 2011 Information: 24394474, 24296878 & 242966877 Location: Estevan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Reggie Lee Harris Appearing: Mr. Roger DeCorby For the Crown Mr. Peter Abrametz, Jr. For the Accused SENTENCING DECISION M.J. HINDS, J I. INTRODUCTION [ 1 ] On September 3, 2010, I found Reggie Lee Harris was guilty of the following seven offences: Information No. 24394474 On April 16, 2010, he did break and enter a dwelling-house situated on 410 Aldridge Street, Bienfait, Saskatchewan and did commit the

indictable offence of assault causing bodily harm to Shawn Shaw, contrary to section 348(1) (

b) of the Criminal Code . Information 24296878 On June 12, 2010, at Estevan, Saskatchewan he did:

(1) Breach a condition of his recognizance to abstain from the use, possession or consumption of alcohol and non-prescription drugs, contrary to section 145(3) of the Criminal Code .

(2) Breach a condition of his recognizance to submit to a breathalyzer upon demand by any peace officer who has reason to believe that you may have alcohol in your body, contrary to section 145(3) of the Criminal Code .

(3) Breach a condition of his recognizance to reside at Mary Rose Boyer’s residence in Roche Percee and not change that residence and to remain in the residence at all times except for employment purposes or to attend for medical appointments except if in the direct company of his mother, Janice Harris, contrary to section 145(3) of the Criminal Code . Information 242966877 Between May 25 and June 12, 2010, at Estevan, Saskatchewan he did:

(1) Utter a threat to cause bodily harm to Miranda Lundberg, contrary to

section 264.1 (

a) of the Criminal Code .

(2) Breach a condition of his recognizance to keep the peace and be of good behaviour, contrary to section 145(3) of the Criminal Code .

(3) Breach a condition of his recognizance to reside at Mary Rose Boyer’s residence in Roche Percee and not change that residence and to remain in the residence at all times except for employment purposes or to attend for medical appointments except if in the direct company of his mother, Janice Harris, contrary to section 145(3) of the Criminal Code . [ 2 ] Sentencing was adjourned to September 20, 2010. Prior to sentencing the Crown applied for an assessment order, pursuant to

section 752.1 of the Criminal Code . On October 15, 2010, I granted the Crown’s application for an assessment order as I was of the view that the offence of break and enter a dwelling-house and committing an assault causing bodily harm to Shawn Shaw was a serious personal injury offence and there were reasonable and probable grounds to believe that Mr. Harris might be found to be a dangerous offender or a long-term offender pursuant to sections 753 and 753.1 of the Criminal Code , respectively. On November 1, 2010, I ordered that Mr. Harris was to be remanded for a period not exceeding sixty days and that Dr.

Terry Nicholaichuk was to perform an assessment and provide the Court with a report. [ 3 ] Dr. Nicholaichuk's psychological assessment was received on or about January 24, 2011. On January 31, 2011 the Acting Attorney General for the Province of Saskatchewan consented to the proceedings being instituted to have Mr. Harris found to be a dangerous offender pursuant to section 753(1) of the Criminal Code and sentenced as a long-term offender in accordance with section 753(4) (

b) of the Criminal Code. The Crown’s formal notice of application for this sentence is dated March 28, 2011. [ 4 ] The Crown takes the position that Mr. Harris should be designated as a dangerous offender pursuant to

section 753 of the Criminal Code and sentenced as a long-term offender pursuant to sections 753(4) (

b) and 753(4.1) of the Criminal Code . Alternatively, the Crown takes the position that Mr. Harris should be designated a long-term offender. The Crown submits that the appropriate global sentence on all of the offences for which Mr. Harris has been convicted is a total of five years in addition to the time he has spent on remand to date (17 months). The Crown also seeks a long-term supervision order of ten years. [ 5 ] The Defence takes the position that the Crown has not established beyond a reasonable doubt that Mr.

Harris is a dangerous or a long-term offender and that the appropriate sentence on all of the offences before the Court is a custodial sentence of two years less a day. The Defence also takes the position that Mr. Harris should receive credit for the seventeen months Mr. Harris has spent on remand awaiting the conclusion of these proceedings. [ 6 ] By consent of the parties the sentencing hearing began in Regina, on April 18, 19 and 20, 2011, continued in Estevan on April 28, 2011 and concluded on June 15 and 16, 2011 in Regina. Final submissions on sentencing took place on August 19, 2011.

During the course of the sentencing hearing the Crown called thirteen witness and the Defence called three witnesses, including Mr. Harris. The Crown filed a total of 28 exhibits which included the criminal record of Mr. Harris, his Correctional Service of Canada records, his Provincial Correctional Centre records and the reports of Dr. Nicholaichuk and Dr. Holden.

[ 7 ] This decision addresses the question of whether the Crown has established beyond a reasonable doubt that Mr. Harris should be designated a dangerous offender or a long-term offender and what sentence should follow. I have determined that Mr. Harris is a dangerous offender. I sentence Mr. Harris as follows:

a) Information No. 24394474 - Predicate Offence - 348(1)(

b) of the Criminal Code , Break and entry dwelling-house and commit an assault causing bodily harm to Mr. Shaw. 5.5 years incarceration to be followed by 10 years supervision.

b) Information 24296878 All counts - section 145(3), Breach of Recognizance. 3 months concurrent incarceration on each offence

c) Information 242966877 - Count 1,

section 264.1(

a) Utter Threat. 6 months concurrent incarceration. Information 242966877 - Counts 2 & 3 , section 145(3), Breach of Recognizance. 3 months concurrent incarceration on each offence The total period of incarceration shall be for a period of four years and one month from this date forward, having made the necessary deduction of 17 months for remand time which Mr. Harrison has served to date. II. THE PREDICATE OFFENCE [ 8 ] I found that on the evening of April 15, 2010 Mr. Harris and Mr. Shaw met at a bar in Estevan, Saskatchewan, where they were both drinking alcohol.

Later in the evening the two men left the bar and subsequently took a taxi ride to Mr. Shaw’s home in Bienfait, Saskatchewan. Mr. Harris had a brother living in the town of Bienfait. The two men parted company after arriving in Bienfait. Mr. Shaw went into his house and went to bed. In the early morning hours of April 16, 2010, Mr. Shaw was sleeping and awoken by someone banging on his front door. When Mr. Shaw opened his front door to find out who was there, Reggie Harris hit him on the nose and mouth with a hard blunt object. As a result Mr. Shaw dropped to the ground in the porch entry way. Mr.

Harris came inside the house and began yelling. I found Mr. Harris also kicked Mr. Shaw in the head twice prior to Mr. Shaw fighting back. Mr. Shaw managed to get Mr. Harris outside of the house, closed the door and locked it. As a result of the assault Mr. Shaw sustained bodily harm. His injuries included a bleeding lip and a bent or cracked nose which was swollen and caused him pain and discomfort especially when wearing safety goggles at his work for four to six weeks. I also found that he suffered from headaches for several weeks. Mr. Shaw took two days off work.

When he returned to his work as a welder he was unable to wear a welding hat for three days due to his injuries and had to work as a helper rather than his usual job as a welder. III. EVIDENCE

a) Personal Circumstances of Mr. Harris: [ 9 ] Reggie Harris is 29 years old. He was born on May 13, 1982 in Estevan, Saskatchewan. Mr. Harris is the only child from a union between Janice Harris and Wayne Martinson. Wayne Martinson lives in Calgary, Alberta with his wife Lori and their children. Reggie Harris was raised by his mother, Janice Harris who has had three other children by Gordon Garrow. Mr. Harris came to regard Gordon Garrow as his father. Mr. Garrow died in a motor vehicle accident when Reggie was about 11 years old. It is reported that Mr.

Harris experienced a reasonably stable upbringing until the death of Mr. Garrow. Thereafter his life was less stable. He began associating with a negative peer group and came into conflict with his mother, school and other authorities. The conflict grew between Reggie and his mother and as a result he lived with an aunt in Estevan between February and June 1996 and then with his biological father, Wayne Martinson in Calgary between June 1996 and February 1997. While staying with Wayne Martinson, Reggie witnessed alcoholism and domestic violence.

He lived briefly with another aunt in Calgary and then returned to live with his mother in Estevan when he was 14.

[ 10 ] Mr. Harris obtained his grade 9 education in 1997 while living in the Estevan area. As a youth he became increasingly involved in substance abuse, criminal activities and the youth criminal justice system. In November 2002, at the age of 20, Mr. Harris obtained his grade 12 equivalency certificate (GED). In December 2003, he completed the qualifications for H-2 Alive Certificate and a WHMIS orientation which gave him qualifications to work in the petroleum industry. He has also completed some correspondence classes through the University of Athabasca. [ 11 ] Mr.

Harris’ employment history is quite sporadic, in part a result of being in and out of jail since he was in his teens. It includes working on and off for his grandfather and others doing oil field work around Estevan and working in exterior construction for several months at a time. At the time of his arrest in June of 2010, he had been working for Randy Pool since April doing exterior construction. Mr. Harris had previously worked for Mr. Pool doing exterior construction for several months in the summer and fall of 2006. Mr. Pool has known Mr. Harris for twenty years and is supportive of him. Mr. Pool found Mr.

Harris to be a good worker and is prepared to hire him again. [ 12 ] Mr. Harris is a single man and has dependants. He continues to maintain relations with the extended members of his family. He has three main social supports in his life: his mother, Mary Rose Boyer and Randy Pool. Mr. Harris and his mother Janice Harris have had a difficult relationship until recently. Mrs. Harris was vehemently against her son’s drinking and had difficulties managing him as a youth. It appears that within the two years Mr. Harris and his mother have had more contact and she is prepared to help him. Mary Rose Boyer met Mr.

Harris when he was 21 years old. At the time Ms. Boyer was working with young people around the area of Estevan to improve their education or help them get a job. Over time she befriended Reggie Harris. Mr. Harris has lived in Ms. Boyer’s home in Roche Percee on a couple of occasions, most recently prior to his arrest on the present charges in June 2010. She continues to maintain contact with Mr. Harris and is supportive of him. [ 13 ] Mr. Harris has had substance abuse problems since he was a teenager. He first used alcohol when he was 12 years old. He also began smoking marihuana at age 13.

In his teens he began to drink alcohol to get drunk. His abuse of alcohol and drugs led to his difficulties with the law throughout his teens and twenties. His abuse of alcohol continued to the date of the predicate offence.

b) The Criminal Record of Mr. Harris: [ 14 ] Mr. Harris’ criminal history is set out in

schedule “A”. Excluding the current offences before the Court he has a total of 52 previous convictions that cover a wide range of criminal activity.

His convictions between 1997 and 2008 can be broken down as follows: • Convictions for property related offences - 18 • Convictions for offences involving violence - 11 • Convictions for failing to abide by court orders - 10 • Convictions for escape lawful custody - 4 • Convictions for obstruction - 3 • Convictions for driving related offences - 2 • Convictions for uttering threats - 1 • Convictions for drug related offences - 1 • Convictions for unlawfully at large - 1 • Convictions for offences involving weapons - 1 [ 15 ] As a youth Mr. Harris accumulated 22 convictions between 1997 and 2000.

Five of these convictions consisted of assaults on others. Most of these assaults involved pushing, punching and slapping others. [ 16 ] As an adult Mr. Harris accumulated an additional 30 convictions between 2000 and 2008. Six of these offences involve

[ 16 ] As an adult Mr. Harris accumulated an additional 30 convictions between 2000 and 2008. Six of these offences involve violence. These violent offences include: two common assaults, two assaults causing bodily harm and two assaults with a weapon. He also has one conviction each, for uttering a death threat and carrying a concealed weapon. [ 17 ] A

summary of Mr. Harris’ 13 prior convictions related to violence are as follows: 1 1997-06-27 – Assault (s. 266) Date of offence: 1997-06-23 Mr. Harris age: 15 Circumstances: Mr. Harris was caught shoplifting and was told by a staff member to return to the store. Mr. Harris began cursing and swung a punch at the assistant and hit her glasses. Sentence: 12 months probation 2 1997-10-02 – Assault (s. 266) Date of offence: 1997-06-09, Estevan, Saskatchewan Mr. Harris age: 15 Victim: Arliss Rawn Sentence: 6 months open custody and 12 months probation Circumstances: Mr. Harris and a friend followed Mr.

Rawn and his friend from the Leisure Centre in Estevan. Mr. Rawn was stopped by the two boys. Mr. Harris and his friend each struck Mr. Rawn in the face. Mr. Harris admitted to striking Rawn once with a closed fist. 3 1999-03-01 – Assault (s. 266) Date of offence: 1998-09-10 Mr. Harris age: 16 Victim: Tyler Nightingale Circumstances: Mr. Nightingale and Mr. Harris both attended the same school. There were several altercations in a drama class which included Mr.

Harris hitting the victim’s head with some feather pillows causing his head to hit the wall causing a fat lip; using a pillow case as a rope and putting it around the victim’s neck; hitting the victim on the shins with a broken leg from a chair and punching the victim. Sentence: 8 months probation 4 2000-04-11 – Assault (s. 266) Date of offence: 1999-11-07, Estevan, Saskatchewan Mr. Harris age: 17 Victim: Troy McClelland, age 27 Circumstances: Mr. McClelland testified that he was outside a 7-11 convenience store with friends when Mr. Harris arrived on a bicycle. Mr.

Harris confronted another individual first and then turned to Mr. McClelland, calling him on to fight. Mr. McClelland stated he wouldn’t fight. Mr. Harris got off of his bicycle and then proceeded to push Mr. McClelland into the glass windows of the convenience store. Mr. Harris then slapped Mr. McClelland on the left side of his face causing swelling around the face and a bloody lip. Sentence: 1 month open custody (consecutive) and 1 year probation 5 2000-05-25 – Assault (s. 266) Date of offence: 1999-12-11, Estevan, Saskatchewan Mr. Harris age: 17 Victim: Chad Saxon, age 26 or 27 Circumstances: Mr.

Saxon testified that he was taking photographs for the local paper at an Estevan Bruins hockey game. At one point

during the hockey game Mr. Harris and some other young men were jumping around in front of him. Mr. Harris then asked Mr. Saxon why he was staring at him. Mr. Saxon told Harris to watch his mouth and then Harris lunged at Mr. Saxon and began swinging his fists. Mr. Saxon attempted to defend himself. Mr. Harris struck Mr. Saxon once on the forehead and once or twice on the body. Security personnel broke up the fight. Mr. Harris and the other young men he was with ran outside. Mr. Saxon sustained a lump on his forehead, his glasses were bent and his camera lens was damaged.

Sentence: 6 months secure custody 6 & 7 2002-05-27 - Uttering Threats (s. 264.1(1) ) and Carry a Concealed Weapon (s. 90) Date of offences: 2002-05-18 and 2002-05-25 Mr. Harris age: 20 Circumstances: On May 18, 2002, William Wiechert was working security at Woodlawn Regional Park when he was asked by a group of young ladies to remove some unwanted guests including Mr. Harris from their campsite. When Mr. Wiechert went to escort Mr. Harris from the park he began swearing at him and pushed him on the chest. Mr. Harris told Mr. Wiechert that he would return later and kill him. On May 23, 2002, Mr.

Harris went to Court. He escaped from custody that day. On May 25, 2002, Mr. Harris was arrested by police. The police searched Mr. Harris and found an expandable police baton [Exhibit P-19]. Sentence: Mr. Harris received two months incarceration on each charge (consecutive). On the threat charge he was prohibited from having possession of a firearm for five years. 8 & 9 2004-05-13 – Two Assaults (s. 266) Date of offences: 2003-09-27 and 2003-10-17 Mr. Harris age: 22 Victim: Jessica Storlie (ex-girlfriend), age unknown. Grade 12 student at time of conviction. Circumstances: On September 27, 2003, Ms. Storlie, Mr.

Harris and other persons left a party in a motor vehicle. Ms. Storlie was driving. Mr. Harris became upset about Ms. Storlie’s driving. He wanted to drive the vehicle. Mr. Harris took a pair of scissors from inside the vehicle and stabbed the centre of the steering wheel while Ms. Storlie was driving. On October 17, 2003, Ms. Storlie and Mr. Harris got into an argument outside a house party in Torquay, Saskatchewan. Ms. Storlie then walked away from Mr. Harris. Mr. Harris threw a beer bottle at Ms. Storlie. The beer bottle came within one to four feet of Ms. Storlie. It did not hit her.

Sentence: One month incarceration on each charge (concurrent, but consecutive to others). 10 2005-04-07 – Assault Causing Bodily Harm (s. 267(b)) Date of offence: 2004-06-20, Frobisher, Saskatchewan Mr. Harris age: 23 Victim: Larry Kopec, age 36 Circumstances: Mr. Kopec and his family live in a small bungalow which he owns in Frobisher, Saskatchewan. Mr. Kopec also owned an adjacent home which he rented out to Robert Blowatt. On June 20, 2004, Mr. Kopec and his wife returned home from a night out at approximately 3:00 a.m. and observed that there was a large party in progress at the house rented by Mr. Blowatt.

He observed broken glass and beer bottles everywhere. When Mr. Kopec began to pick up bottles from his driveway, three males walked up to him. Mr. Kopec told them to leave his yard, which they did. Mr. Kopec continued picking up bottles. When Mr. Kopec went to the side of his home he encountered Mr. Harris. The two men began arguing. Mr. Harris struck Mr. Kopec in the face while holding a beer bottle by the neck. Mr. Kopec was struck on the cheekbone just below the left eye causing a cut under the eye, a broken cheek bone and a broken nose. Mrs. Kopec assisted her bleeding husband into their home.

Sentence: Two years less one day incarceration and firearms prohibition pursuant to

section 109 of the Criminal Code . 11 2005-04-21 – Assault Causing Bodily Harm ( s. 267(b)) Date of offence: 2004-08-08, Estevan, Saskatchewan Mr. Harris age: 23 Victim: Leslie Matthew Mehler, age unknown

Circumstances: At 4:30 a.m. on August 8, 2004, Mr. Harris was lodged in cells at the Estevan Police Service Building for intoxication. Mr. Mehler, who was also intoxicated, was moved into the same cell as Mr. Harris. At the time Mr. Mehler walked with great difficulty and did not have much balance. Mr. Mehler had lost portions of his feet as a result of frostbite a year earlier. Mr. Harris became angry and assaulted Mr. Mehler in the jail cell. Mr. Mehler was not in a position to do much to defend himself due to pre-existing problems with his feet. Mr.

Mehler sustained a three-inch laceration over his left cheek and a two-inch laceration over his right eyebrow. He was also badly bruised. Sentence: 23 months (concurrent) 12 & 13 2008-04-24 – Two Assaults with a weapon (s. 267(a)) Date of offence: 2007-01-19, Estevan, Saskatchewan Mr. Harris age: 24 Victims: Kevin Hillier and Brenda Stuart Circumstances: On January 19, 2007, Mr. Hillier and his common-law spouse Ms. Stuart held a house party at their residence in Estevan, Saskatchewan. Mr.

Harris and a number of other people were at the house party which involved drinking alcohol, smoking pot and playing board games. During the evening events transpired that led to a physical confrontation between Mr. Hillier and Mr. Harris. The two men were separated. Mr. Harris briefly left the residence. When he returned to the residence Mr. Harris began to throw full bottles of beer at Mr. Hillier. Mr. Hillier was struck in the arm, shoulder and face by the beer bottles. Mr. Hillier sustained swelling and bruising around the eye. Ms. Stuart was struck by a beer bottle thrown by Mr.

Harris when she got between Mr. Harris and Mr. Hillier. She sustained a minor injury to her wrist. Sentence: One year incarceration on each charge (concurrent).

c) Youth, Provincial Correctional Centre and Correctional Service of Canada Records: [ 18 ] The Crown tendered a great number of documents into evidence which detail the time Mr. Harris has spent in youth facilities, provincial correctional centres and penitentiaries. These documents include various assessments performed on Mr. Harris, correctional plans and specific programming offered to Mr. Harris while institutionalized. [ 19 ] The institutional records reveal that Mr. Harris has struggled with substance abuse since his teens.

For instance a Corrections Service of Canada (“CSC”) correctional plan progress report dated July 29, 2002 [Exhibit P -20(1)] respecting Mr. Harris reads as follows at page 3: Harris states that he began smoking marihuana at the age of 13 and is still using. Harris began consuming alcohol at 12 years old. He stated that he has an extremely high tolerance level and he has to drink a large amount of alcohol to become intoxicated. He never drinks alone, always as a social outlet with friends. He is not a social drinker; he always drinks to get drunk.

Harris can relate his excessive drinking to his criminal behaviour, however, finds it difficult to believe that his use of marihuana is a contributing factor. The report continues on page 5 as follows: Harris shows little motivation to actively involve himself in programs and to address his problem areas. . . . Harris will need to make a commitment not to associate with those people who abuse alcohol and drugs. [ 20 ] A Saskatchewan Justice Corrections case management activity report dated 02-?-02 [full date not visible on Exhibit P-19] respecting Mr.

Harris’ health status reads as follows: Subject started drinking at the age of 12 but on weekends only. When he moved back to Estevan a few months ago he started drinking everyday. He started using drugs at the age of 13 and has been using everyday since. He likes drugs (cocaine, hash, oil, mushrooms)

and has not wanted to quit but would like to quit now. He was not attending any sort of treatment in the past but is now rethinking his decisions and looking forward to some treatment. [ 21 ] Despite his expressed desire to quit using drugs, on August 4, 2002, Mr. Harris was observed to be smoking marihuana in his cell. In addition the institutional records also reveal that Mr. Harris did not attempt to participate in any programming to address his substance abuse problems during his incarceration in 2002. [ 22 ] Mr. Harris was incarcerated following his conviction for an assault of Mr. Mehler on April 21, 2005.

He was intoxicated at the time of this offence. Mr. Harris stated that he needed treatment for both substance abuse and anger management. A Saskatchewan Justice Corrections case management activity report dated August 6, 2006 [Exhibit P-19] shows that Mr. Harris attended 47 hours of AA meetings (three meetings per week) and that he appears to have begun to address his substance abuse. [ 23 ] Mr. Harris was incarcerated following his convictions for assaulting Mr. Hillier and Ms. Stuart on April 24, 2008. He had been drinking alcohol at the time of these assaults. A CSC criminal profile report respecting Mr.

Harris dated July 17, 2008 [Exhibit P- 20(12)] describes Mr. Harris’ offence cycle as follows at page 10: Harris has affiliated with mainly anti-social peers since adolescence. He drinks to excess with peers and often winds up in confrontational situations as a result. Harris prides himself on being a highly regarded fighter in his home community. Harris has a well documented history of failing to take responsibility for his criminal behaviour. There is significant documentation that indicates that Harris should not consume alcohol at any time.

His volatility and easy use of violence is greatly increased when he is consuming alcohol. It is likely that the unresolved family of origin issues become active when he is consuming alcohol. There does not seem to be a pattern of pre-meditation in Harris’ violent offences. His victims appear to be “in the wrong place, at the wrong time”. There is substantial corroboration to infer that Harris will perceive challenges or threats that do not exist when he is inebriated. When Harris is partying with his peers, Harris will often take it upon himself to use violence “on behalf of his friends”.

Harris has a number of rationalizations and excuses for his long history of violence. It is hoped that through violence prevention and substance abuse programs he will come to understand his risk factors, i.e. alcohol, peers and cognitive distortions. [ 24 ] Mr. Harris received programming for violence prevention and substance abuse while incarcerated. A CSC correctional plan progress report dated April 6, 2009 [Exhibit P-20(28)] indicates that Mr. Harris completed the Violence Prevention Program High Intensity program on January 20, 2009. A description of Mr.

Harris’ progress in the violence prevention program is set out on pages 2 and 3 of the report as follows: Harris was able to learn and develop coping skills to deal with anger and emotional arousal. However, he struggled with this aspect of the program when provoked. Problem solving was a problem for Harris and he developed an understanding of the consequences of using violence to solve problems. Thinking supporting violence had a significant impact on Harris’ violent behaviour. Harris could be described as having a chip on his shoulder going around daring people to “knock it off”.

In other words, Harris believes violence and an ability to fight resulted in respect. Fear is not respect. Harris came to understand the errors in thinking contributed to the use of violence: “He saw that some of his thinking errors contributing to feeling this way, such as mind reading, catastrophizing (sic) and assuming others should know how to act.” Although gains were made, Harris continued to use justification for his violence. Interpersonal problem solving appear to have resulted in useful gains.

However, Harris continued to assume that others would be aggressive with him and appears to have a fear of appearing weak and therefore he would need to resort to violence. Harris failed to recognize that people tend to reflect the image of the person presented to them. Goal setting has been a major difficulty for Harris but he was able to make some appropriate plans for his future including education and a career. Harris stated he now understands he must completely abstain from alcohol and he needs to avoid high risk situations.

Harris also appeared to make gains with respect to self manage and he made appropriate gains throughout the program at understanding what he needs to accomplish to avoid further violence while achieving a more satisfying lifestyle. Overall Harris’ action plan at the end of the program was described as realistic. In all such cases, however, it is attitude and commitment to the plan that will determine success. Letting go in favour of a few drinks with the guys has only one outcome for Harris. [emphasis added]

[ 25 ] Mr. Harris also received programming for substance abuse. A description of Mr. Harris’ progress in a substance abuse program is set out on page 3 of the CSC correctional plan progress report dated April 6, 2009 as follows: Harris successfully completed the National Substance Abuse Moderate Intensity program on 2009-03-06. In the Life Area Planning Area stage of the program it appears Harris struggled as he did not have detailed plans for leisure activities and there did not appear to be a great deal of effort placed in planning for work and education.

As the facilitator pointed out boredom is a contributing factor in Harris’ intoxicant use and he needs to have detailed plans on how to spend his working and off hours. Harris needs to be involved in structured activities that do not include drinking alcohol or going to the bar. Harris needs to be honest within himself when it comes to his life plans. Harris associates going to have a “couple of beer ” with pleasant emotions but it never fails to result in thought distortions and violence. Harris cannot manage his emotions through an alcoholic fog .

The issues that he has sheltered within his emotional persona flood out when he’s drunk resulting in violence. Harris has been able to live pro-socially in the past. He is able to communicate effectively and this writer has observed his determination when addressing his court appeal. Harris is a high energy “A-type” personality. He also has a head on his shoulders so if he applies himself he would likely be successful in business. However, he needs to stay busy and learn effective emotional management skills that completely avoid taking another drink or another illicit drug . [emphasis added]

d) Mr. Harris ’ Activities from September 1, 2009 until June 2010: [ 26 ] Mr. Harris was released from federal custody to live at a community facility in the city of Calgary on August 19, 2009. Mr. Harris lived at a half-way house until on or about September 1, 2009. On August 27, 2009, his conviction for the offence on which he was serving was overturned on appeal. As a result his sentence was vacated and thereafter he was no longer required to reside in the community facility. Mr. Harris testified that following September 1, 2009, he visited his father, Wayne Martinson who lived in Calgary.

He also testified he had a few celebratory drinks with him. [ 27 ] Mr. Harris returned to the Estevan area on September 19, 2009. He stayed with Mary Rose Boyer in her home in Roche Percee until his arrest on the offences currently before the Court. He worked for Supreme Oil Field from October 2009 to February 27, 2010. Mr. Harris testified at the sentencing hearing that his oil field work “opened up a door for him to drink again” with other oil field workers at bars after work. Mr. Harris changed jobs in the spring of 2010 and began working construction with Randy Pool. At the sentencing hearing Mr.

Harris testified that in the spring of 2010 he would drink alcohol and get “pissed up” only once per month. On April 16, 2010, approximately 7.5 months following his release from the community facility in Calgary, Mr. Harris was drinking alcohol and committed the predicate offence of breaking and entering Mr. Shaw’s residence and committing assault causing bodily harm to Mr. Shaw. Mr. Harris was arrested on this charge and was released from custody on May 3, 2010, pending trial, on a recognizance containing several conditions. Mr.

Harris was arrested on June 12, 2010, on various new charges including uttering a threat to Ms. Lundberg and numerous breaches of his recognizance. Mr. Harris was drinking alcohol on June 12, 2010. Mr. Harris has remained in custody since June 12, 2010.

e) Dr. Nicholaichuk: [ 28 ] Dr. Terry Nicholaichuk was qualified to give expert opinion evidence as a clinical psychologist with respect to the assessment and treatment of risk in violent individuals. Dr. Nicholaichuk obtained his Masters degree in clinical psychology in 1977 and his PhD in clinical psychology in 1987. He has extensive experience working with violent individuals in the treatment, research and assessment capacity. Dr. Nicholaichuk reviewed Mr.

Harris’ youth offender records, Saskatchewan Correctional Centre records and the Correctional Service Canada records that have been filed with the Court on this hearing. On November 26, 27 and 28, 2010, Dr. Nicholaichuk personally interviewed and conducted psychological testing with Mr. Harris. He also conducted telephone interviews with Mr. Randy Pool, Ms. Mary Rose Boyer and Ms. Janice Harris. Dr. Nicholaichuk prepared a psychological assessment [Exhibit P-22] on Mr. Harris dated January 24, 2011 and testified at this hearing on April 28, 2011. Dr.

Nicholaichuk’s testimony was of considerable assistance to the Court. [ 29 ] Dr. Nicholaichuk administered the Conners’ Continuous Performance Test to determine if Mr. Harris suffered from Attention Deficit Disorder. He determined that Mr. Harris had none of the characteristics normally present with individuals diagnosed with that disorder. Dr. Nicholaichuk concluded that Mr. Harris has the ability to be vigilant and pay attention to what he is expected to learn. After administering the Wisconsin Card Sorting Test he determined that Mr.

Harris did not display any evidence of deficit in executive functioning and problem solving. Dr. Nicholaichuk concluded that Mr. Harris’ ability to learn seems unimpaired.

[ 30 ] Dr. Nicholaichuk assessed Mr. Harris’ criminal risk using a variety of tools including: Level of Service Inventory-Revised (LSI-R), Violence Risk Scale (VRS) and the Hare Psychopathy Checklist Revised: Second Edition (PCL-R). [ 31 ] On page 14 of his report Dr. Nicholaichuk describes the results of the Level of Service Inventory-Revised (LSI-

R) as follows: I also assessed Mr. Harris on a commonly employed, and validated scale of criminal risk, the LSI-R. This is a scale which is normed and validated upon a large number of Canadian offenders. He fell within the Low to High Medium risk range for criminal recidivism of any sort (the LSI-R is not specific to the prediction of violence). This is consistent with the estimate of his risk taken from his final risk assessments during his period of incarceration in the Federal Correctional system.

Individuals such as this can be expected to recidivate at the rate of about 45% (or perhaps higher) over one year, assuming no interventions are implemented. These individuals are usually considered to be medium security inmates. In the community, they require maximum surveillance while on probation. Halfway house placement is not considered to be appropriate unless intense supervision and treatment are also provided. The sources of risk given by the scale are of course, Mr. Harris ’ previous criminal history, his problems with substance abuse and the influence of his criminal peer group.

He clearly has significant problems in the areas of his companions. He lacks emotional control, primarily when he is intoxicated. From my reading of the record as well as collateral reports, Mr. Harris is particularly sensitive to threat, either real or imagined, and under those circumstances has a history of responding violently. However, this risk can be considered to be potentially mitigated by a number of factors.

He has a strong work ethic, and I did not observe him to be especially criminalized (this was consistent with the observations of the collateral sources of information reported above), nor does he currently appear to possess attitudes which support deliberate criminal behaviour. Rather, his violence seems primarily affectively rather than instrumentally driven. In addition he appears to have multiple sources of effective community support should he elect to take advantage of them. Further he has an offer of employment which appears to be sound.

I found it to be somewhat remarkable that after a lifetime of conflict with him, his mother appears to believe he has now matured and has changed his attitudes. She is now supportive of him. [emphasis added] [ 32 ] When testifying at the sentencing hearing Dr. Nicholaichuk opined that Mr. Harris’ risk to recidivate was 45% to 55% and placed Mr. Harris in the medium to medium high-end risk range for criminal recidivism of any sort due to his persistent use of violence. [ 33 ] On pages 16 and 17 of his report Dr. Nicholaichuk describes the results of the Violence Risk Scale (VRS) as follows: Mr.

Harris ’ pro-rated score on the VRS placed him in the medium risk category with the probability of violent recidivism set at approximately 32.8% over 4.4 years in the absence of an effective intervention, or community management strategy. Mr. Harris ’ risk was primarily attributed to his pattern of substance abuse, his association with criminal peers and his history of aggression. I did not find him to be especially criminalized in terms of his personality functioning, nor did he appear to be committed to a criminal lifestyle.

To a large extent, his level of risk was determined by his scores on the static items of the test, which cannot be changed. This rating is also consistent with estimates of his risk taken from reports prepared while he was in federal custody. This rating is based upon Mr. Harris’ acknowledgement of his problem areas and the steps he has taken in order to address them. For example, although he has relapsed, he attempted to be sober, attended various treatment programs and was able to function to some degree, for almost a year prior to his most recent arrest. I placed Mr.

Harris in the “Preparation ” and to some degree, “Action ” phase of the change process. The preparation stage is distinguished from the earlier “contemplation” stage by the presence of observable indications of change related to the individual’s problem areas (e.g. periods of sobriety and/or lack of aggression followed by a relapse). The individual recognizes the problem area(

s) and relevant behavioural improvements are evident; however, the changes may be recent, relative to the duration of the problem behaviour(

s) and tend not to be consistent over time or situations; lapses are quite frequent. This seems to be evident in Mr. Harris ’ case. During the “Action ” stage, individuals actively modify their behaviour, attitudes, and/or their environment in order to overcome their problems. Relevant behavioural changes observed in the action stage have been consistent and stable over an extended period of time relative to the frequency and duration of problem behaviours, but have not yet been generalized to various key high-risk situations (Prochaska, DiClemente & Nocross, 1992). Although he may be improving, Mr.

Harris has yet to demonstrate stable, long-term change . [emphasis added] [ 34 ] On pages 17 and 18 of his report Dr. Nicholaichuk describes the results of the PCL-R as follows:

Finally, I scored Mr. Harris on the PCL-R. This is a scale which was initially developed as a personality assessment instrument, but has come into common use as a criminal risk assessment tool. In this case, Mr. Harris scored well below the cut-off for psychopathy (e.g. criminal history and history of violence). For the most part, he lacked the personality and attitudinal characteristics to qualify for the descriptor of psychopathy. His score fell in the lower half of federal inmates rated on this scale. [emphasis added] [ 35 ] On page 19 of his report Dr.

Nicholaichuk summarises his findings as follows: As I noted above, unless he further engages in the process of changing his life, the risk Mr. Harris presents, will be in the moderate range or perhaps higher. If he re-offends, the pattern of his offences will likely resemble those which have gone before. For the most part, they will probably be unpredictable and occasionally, predictable violent explosions which are disinhibited by alcohol.

It can be reasonably expected that unless he matures and/or actively engages in the process of changing his life, his pattern of aggression and other criminal activities will peak sometime in his mid thirties and then gradually subside (Sampson and Laub, 2003). The presence of a tangible and concrete source of social support, coupled with his attempts to change, must be regarded as positive indicators. Of course, if Mr.

Harris chooses not to avail himself of the resources available to him, and make the necessary alterations in his lifestyle, which I described above, his risk for violence, at least in the short term, must be considered to be unassumable. [ 36 ] Dr. Nicholaichuk testified that the necessary alterations in Mr.

Harris’ lifestyle involve (1) staying away from all alcohol and drugs - complete abstinence; (2) staying away from negative peers, particularly those who drink alcohol and use illicit drugs; (3) learning to regulate/control his emotions, particularly his temper; (4) finding and maintaining suitable employment; and (5) drawing upon his community supports. [ 37 ] Without such changes, Dr. Nicholaichuk testified that he considers Mr. Harris to be a high risk to re-offend violently. At page 82 of his testimony Dr.

Nicholaichuk stated: “If he were to walk out of here today and be left to his own devices, I think we would be having this conversation at some time in the future”. [ 38 ] The cross-examination of Dr. Nicholaichuk largely focussed on the topics of maturation and desistance. A portion of the

summary set out in Dr. Nicholaichuk’s report stated: It can be reasonably expected that unless he matures and/or actively engages in the process of changing his life, his pattern of aggression and other criminal activities will peak sometime in his mid thirties and then gradually subside (Sampson and Laub, 2003). Dr. Nicholaichuk produced an

article written by Sampson and Laub entitled “Life Course Desisters? Trajectories of Crime among Delinquent Boys Followed to Age 70”, published in 2003 in the journal Criminology, Volume 41, Number 3. Dr. Nicholaichuk acknowledged on cross-examination that (1) property crimes peak in late adolescence, around the age of 20, there is half the rate of property crime about age 35 and very minimal property crime at age 50;

(2) Mr. Harris’ property offences stopped at age 20; (3) violent crime peaks in the late 20's, around age 27 and diminishes thereafter; and

(4) Mr. Harris’ predicate offence occurred when he was 28. [ 39 ] Dr. Nicholaichuk, however, resisted the suggestion that Mr. Harris follows the classic young man’s progression in terms of violence and that he’s already reached his peak at the age of 27 and that going forward the risk of violence from Mr. Harris is going to decrease. Dr. Nicholaichuk stated at page 129, “That’s where we differ, I don’t think he has reached the peak yet, based on modern technology.” [ 40 ] Moreover, Dr.

Nicholaichuk stated that the conclusion from the Sampson and Laub study is that aging out of crime is the norm, not the exception. He also stated that the study deals simply with the aging process, which is not the only variable that has been shown to change a criminal career. He further added that the Sampson and Laub study has nothing to do with risk assessment and that he would not use the study as a risk assessment.

f) Dr. Holden: [ 41 ] Dr. Roger Holden is a registered psychologist and was qualified to give expert opinion evidence in the assessment of risk and risk reduction in violent individuals. Dr. Holden obtained his Masters degree in developmental psychology in 1976 and his PhD in psychology in 1981. He has extensive experience assessing, treating and researching violent individuals. [ 42 ] On October 15, 2010, this Court ordered that Mr. Harris was to be assessed pursuant to

section 752.1 of the Criminal Code . The Crown applied to have Dr. Holden assess Mr. Harris. The Defence applied to have Dr. Nicholaichuk assess Mr. Harris. On November 1, 2010, this Court ordered that Mr. Harris was to be assessed by Dr. Nicholaichuk. [ 43 ] Dr. Holden has had prior dealings with Mr. Harris. At a trial in May of 2007, Provincial Court Judge Benison determined that Mr. Harris was guilty of an assault causing bodily harm, contrary to

section 267 (

b) of the Criminal Code . The Crown obtained an order pursuant to

section 752.1 of the Criminal Code to have Dr. Holden assess Mr. Harris and file a report with the Court. Dr. Holden interviewed and conducted psychological testing of Mr. Harris on July 17 and 18, 2007. The total interview time was approximately four and one half hours. Dr. Holden also reviewed numerous documents relating to Mr. Harris. Dr. Holden subsequently prepared an assessment report respecting Mr. Harris dated July 27, 2007. Following a sentencing hearing Mr. Harris was designated as a long-term offender, sentenced to a 30 month prison term and was given a five year community supervision order.

In August of 2009, Mr. Harris successfully appealed his conviction respecting the offence of assault causing bodily harm. The Saskatchewan Court of Appeal quashed that conviction and Mr. Harris’ long-term offender designation in its decision in R. v. Harris , 2009 SKCA 96 . [ 44 ] In March 2011, the Crown requested Dr. Holden review new materials respecting Mr. Harris including this Court’s decision regarding the predicate offence and provide an updated report. That report is entitled “Updated Forensic Assessment Report” and is dated June 2, 2011. This report was entered as Exhibit P-27 when Dr.

Holden testified during the sentencing hearing on June 15, 2011. [ 45 ] In preparing his report of June 2, 2011, Dr. Holden did not interview or conduct any psychological testing of Mr. Harris. Instead, Dr. Holden relied upon new materials respecting Mr. Harris supplied by the Crown in 2011 to augment his earlier report. Those materials relate primarily to Mr. Harris’ current predicate offence and records from Corrections Service of Canada while Mr. Harris was incarcerated in 2008 and 2009. [ 46 ] Dr.

Holden’s qualifications are not in issue, nor is the sincerity of the opinion he provided to the Court regarding his assessment of Mr. Harris and the risk that he poses to offend violently in the future. However, as with any expert witness the Court is required to determine what, if any weight is to be given to Dr. Holden’s testimony. [ 47 ] I am of the view that one of the chief limitations in giving any weight to Dr. Holden’s opinion evidence lies in the fact it has been nearly four years since he last personally interviewed or conducted psychological testing on Mr. Harris. Dr.

Holden candidly admitted in chief that four years is probably the longest interval between the time he completed a court ordered assessment report and testified before the Court on a dangerous offender hearing. [ 48 ] On cross-examination Dr. Holden admitted that in most of the dangerous offender cases he is involved in, the lag between the date of his report to the time he speaks to the report is often between a year and 18 months. It rarely is over 18 months. He gave one example where the time lag was three years. Dr.

Holden testified that he does not think he has ever seen a time lag of four years. [ 49 ] After Dr. Holden was called upon by the Crown to prepare an updated report on Mr. Harris he did not attempt to interview Mr. Harris or conduct psychological testing of him. In addition, Dr. Holden did not interview Mr. Harris’ social supports or talk to prison officials. [ 50 ] On cross-examination Dr. Holden testified that when he was communicating with the Crown respecting Mr. Harris prior to May 15, 2011, he was involved in preparing five separate

Part XXIV Criminal Code assessments. Dr. Holden testified that he advised the Crown that he could not possibly start the Harris report until May 15, 2011. Dr. Holden completed his updated report respecting Mr.

Harris on June 2, 2011. On June 15, 2011, while testifying at the sentencing hearing Dr. Holden said he finished delivering all five

Part XXIV Criminal Code assessment reports he had been working on. Dr. Holden testified he had as much time as he needed to devote to Mr. Harris’ file. [ 51 ] On cross-examination Dr. Holden admitted his updated report could have been better. At page 530 of the sentencing transcript Dr. Holden states as follows: I was requesting to re - - make an updated report based upon the materials that I was provided, which is what I did. Would it have been a better report if I ’d been able to interview Mr. Harris? Yeah.

Would it have been a better report if I ’d have interviewed many of his social supports, talked to the people at the institution where he was incarcerated? Of course. But then it - - it ’s a matter of time, cost, and - - you know, I mean where do you stop? Obviously the more people that you talk to - - sometimes they’re biased and sometimes they don’t give you the factual information, but - - you know, I mean - - - [emphasis added] [ 52 ] I am of the view that the time given to Dr. Holden to prepare the updated report on Mr. Harris and the workload Dr.

Holden was under at the time appear to have been factors affecting the quality of his report in this case. [ 53 ] A dangerous offender proceeding is the most serious hearing an offender can face. Time, workload and cost considerations should not impede an expert’s work when preparing a report for a dangerous offender hearing. This Court expects expert witnesses called to testify at a dangerous offender proceeding to have prepared the best report that they are capable of. I am not satisfied that Dr. Holden’s updated forensic assessment of Mr. Harris meets that standard.

Accordingly, I am not prepared to attach any significant weight to Dr. Holden’s updated report dated June 2, 2011 or his testimony at the sentencing hearing. IV. THE LAW

a) The Statutory Framework Respecting Dangerous and Long-Term Offenders [ 54 ]

Part XXIV of the Criminal Code , which sets out the dangerous and long-term offender regimes, has undergone significant amendments over the years. The latest series of amendments in 2008 (in force at the time that Mr. Harris committed the predicate offence in April 2010) has made the dangerous offender designation and an indeterminate sentence more easily available, as there is an increase in the number of predicate offences, a mandatory designation of dangerous offender once the criteria are satisfied and a presumptive indeterminate sentence. [ 55 ]

Part XXIV of the Criminal Code sets forth the dangerous offender criteria and sentencing scheme. The applicable sections for this decision are:

Section 753.

(1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the Court shall find the offender to be a dangerous offender if it is satisfied (

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

a) of the definition of that expression in

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

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

. . . Section 753(1.1) If the Court is satisfied that the offence for which the offender is convicted is a primary designated offence for which itwould be appropriate to impose a sentence of imprisonment of two years or more and that the offender was convicted previously at leasttwice of a primary designated offence and was sentenced to at least two years of imprisonment for each of those convictions, theconditions in paragraph (1)(

a) or (b), as the case may be, are presumed to have been met unless the contrary is proved on a balance ofprobabilities. Section 753(4) If the Court finds an offender to be a dangerous offender, it shall (

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

b) impose a sentence for the offence for which the offender has been convicted — which must be a minimum punishment ofimprisonment for a term of two years — and order that the offender be subject to long-term supervision for a period that does not exceed10 years; or (

c) impose a sentence for the offence for which the offender has been convicted. Section 753(4.1) The Court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by theevidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(b)or (

c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. Section 753(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 theapplication 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. [56] In R. v. Johnson, 2003 SCC 46 , [2003] 2 S.C.R. 357, the Supreme Court of Canada considered the previous statutoryregime respecting dangerous and long-term offenders. At that time the wording in section 753(1) read in part as follows: The Court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find theoffender to be a dangerous offender if it is satisfied ... [57] Based on that wording, the Supreme Court in R. v.

Johnson, supra, held that if a Court is satisfied that the criteria in s. 753relating to a designation of dangerous offender has been proven by the Crown, prior to imposing a dangerous offender designation, andan indeterminate sentence, the Court is required to consider whether the long-term offender provisions in s. 753.1 are applicable. TheCourt held that if there is a reasonable possibility of eventually controlling the risk represented by the offender in the community, theoffender should be designated a long-term offender as opposed to a dangerous offender. [58] In R. v. Warawa, 2011 ABCA 294 , [2011] A.J.

No. 1065, Mr. Justice P.A. Rowbothom of the Alberta Court ofAppeal discussed the significance of the 2008 amendments to

Part XXIV I of the Criminal Code as follows: 8 The 2008 amendments made two changes to the dangerous offender regime that are significant to this appeal. 9 The wording in section 753(1) has changed from "may" to "shall", making the finding that an offender is dangerous mandatory oncethe statutory criteria are made out. Prior to the 2008 amendments, sentencing judges retained discretion to decline to declare as dangerousan offender who met the statutory criteria. 10 With the 2008 amendments, the discretion has shifted to the sentencing stage.

Whereas previously an indeterminate sentence wasmandatory when an offender was declared dangerous, now the Court sentencing a dangerous offender has discretion to impose anindeterminate sentence or a fixed sentence, with or without a long-term supervision order (section 753(4)).

However, that discretion islimited by the newly added section 753(4.1) which creates a presumption that an indeterminate sentence shall be imposed unless theCourt is "satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lessermeasure ... will adequately protect the public against the commission by the offender of murder or a serious personal injury offence." [59] I adopt this approach to

Part XXIV of the Criminal Code. In this case I must first determine

whether Mr. Harris meets the statutory criteria and is a dangerous offender under

section 753. If I find Mr. Harris is a dangerousoffender, I have discretion, subject to the presumption set out in s. 753(4.1), to impose an indeterminate sentence or a determinate sentence, with or without a long-term supervision order (section 753(4)). Only if I find that he is not a dangerous offender, can I thenconsider whether Mr. Harris should be designated a long-term offender or merely subject to a determinate sentenced for the offensebefore the Court (section 753(5)).

b) The Common Law Respecting Dangerous and Long-Term Offenders [60] There is a great deal of case law which provides guidance on dangerous and long-term offender applications. In

summary, thefollowing principles are applicable to this hearing: 1. The Crown has the onus of proof beyond a reasonable doubt to establish that the offender fulfils the criteria in s. 753 (R. v. Ewenin,2009 SKQB 207, para. 23; R. v. Natomagan, 2010 SKPC 7 at para. 56). 2. The principles of sentencing contained in the Criminal Code, ss. 718, 718.1 and 718.2 must be considered by the Court (R. v. Johnson,2003 SCC 46 at para. 23, [2003] 2 S.C.R. 357). 3. Sentencing is an individualized process in which the trial judge has considerable discretion in fashioning a fit sentence.

In the case ofa dangerous offender application, the focus must remain on the offender's own record, personal characteristics, and on the availability oftreatment and rehabilitation programs for the particular offender (R. v. Merasty, 2011 SKPC 109, at para. 110; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 (S.C.C.) at para. 82; R. v. Daniels, 2011 SKCA 67 at para. 19.). 4. The primary purpose of the dangerous offender legislation is the protection of the public (R. v. Johnson, 2003 SCC 46 at para. 19; R.v. Ewenin, 2009 SKQB 207, para. 22).

Recent amendments to the dangerous offender legislation “…have placed greater emphasis onthe primacy of protection to the public.”: R. v. J.E.M., 2011 BCSC 715 at para. 37. [61] In R. v.

Lyons, (SCC), [1987] 2 S.C.R. 309, the Supreme Court of Canada conceived of the dangerousoffender legislation as applying narrowly to offenders who are "highly" dangerous, at para. 62: [T]he legislation narrowly defines a class of offenders with respect to whom it may properly be invoked, and prescribes quite specificallythe conditions under which an offender may be designated as dangerous .... [T]hese criteria ... are anything but arbitrary in relation to theobjectives sought to be attained; they are clearly designed to segregate a small group of highly dangerous criminals posing threats to thephysical or mental well-being of their victims. [62] More recently the Courts of this province have repeatedly stressed the importance of limiting the designation of dangerousoffenders to a small group of highly dangerous offenders.

Cameron J.A., speaking for the Saskatchewan Court of Appeal in R. v.Lemaigre, 2004 SKCA 125, indicated at paragraph 15 that sentencing judges must: …bear in mind that Parliament intended the sentence reserved for dangerous offenders to apply only to that very small group of offenderswhose personal characteristics and particular circumstances militate strenuously in favour of indefinite preventive detention. [63] In R. v. Daniels, 2011 SKCA 67, Jackson J.A. expressed similar thoughts at para. 43: Given: (

i) the Supreme Court's exhortations on the importance of reserving the dangerous offender designation for only the most highlydangerous offenders, and (ii) this Court's broad power of review of the sentencing judge's reasons in such cases, the decision to imposean indeterminate sentence on an offender with Mr. Daniels' specific history and personal circumstances is unreasonable. Mr. Daniels'personal circumstances and criminal history do not militate strenuously in favour of indefinite preventive detention. In my view,indefinite detention cannot be justified.

To invoke the most severe penalty known to the criminal justice system in this case ignores thesentencing judge's obligation to impose the least restrictive sanction available. [64] The decisions in R. v. Lyons, supra, R. v. Lemaigre, supra and R. v. Daniels, supra, each considered the legislation prior to the

2008 amendments. As previously discussed the 2008 amendments to

Part XIV of the Criminal Code have resulted in significant changes to the dangerous offender regime. A determination that an offender meets the statutory criteria of dangerous offender does not result in the offender automatically being subject to indefinite incarceration. Other sentences are open for consideration by a judge. In R. v. Warawa , supra , Rowbothom J.A. discussed the effect of the 2008 amendments as follows: 40 The 2008 amendments create a high degree of rigidity in sentencing.

Parliament has clearly placed the protection of the public ahead of any other sentencing principle and has greatly circumscribed judicial discretion. However, in my view, the surrounding context of the statements by Parliament of the fundamental principles of sentencing found in sections 718 , 718.1 and 718.2 may be relevant even at the stage of determining whether to impose an indeterminate sentence. I adopt this approach to

Part XIV of the Criminal Code . V. ANALYSIS

A) Is the predicate offence a serious personal injury offence as defined in

section 752(a)? [ 65 ] A "serious personal injury offence" referred to in s. 753 of the Criminal Code is defined in s. 752 (

a) of the Criminal Code . It states:

Section 752. In this Part, . . . “serious personal injury offence” means (

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

i) the use or attempted use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person, and for which the offender may be sentenced to imprisonment for ten years or more. [ 66 ] In R. v.

Goforth , 2005 SKCA 12 , the Saskatchewan Court of Appeal overturned a decision in which the trial judge had decided that while the predicate offence of assault with a weapon would constitute a personal injury offence, the violence employed by the offender was not sufficiently serious to constitute a serious personal injury offence and justify invoking the dangerous/long-term offender provisions. In overturning the trial judge's decision, the Court of Appeal said that at this stage the Court does not undertake a qualitative assessment in relation to the "serious personal injury offence".

The Court of Appeal stated at paragraph 49: [49] In light of the foregoing, it may fairly be said that the object of the term in issue does no more suggest that the words "serious" or "seriously" be imported into the definition of the term contained in para. 752(1)(

a) than does the text of the definition read in its grammatical and ordinary sense. The object is achieved if the predicate offence is, first, an indictable offence; second, an indictable offence involving personal violence or endangerment; and third, an indictable offence involving personal violence or endangerment and potentially punishable by imprisonment of up to ten years. This serves to ensure that the fundamental principle of sentencing is adequately met. [ 67 ] In this case those three requirements have been met. The predicate offence of break and entry of a dwelling-house and commit the offence of assault causing bodily harm on Mr. Shaw contrary to section 348(1) (

b) of the Criminal Code is an indictable offence, which involved the use of personal violence to Mr. Shaw. Such an offence is potentially punishable by imprisonment of ten years or more. Hence, I am of the view that the predicate offence is a serious personal injury offence.

B) Does Mr. Harris constitute a “threat to the life, safety or physical well-being of other persons or mental well-being of other persons ” as set out in s. 753 .(1)(a)? [ 68 ] The second requirement, pursuant to s. 753.(1) of the Criminal Code , is the Court must be satisfied the offender constitutes "a threat to the life, safety or physical or mental well-being of other persons ...". For the Court to find that an offender constitutes a threat there must first be a finding that the offender meets the criteria set out in ss. 753(1) (a)(i), (ii) or (iii). As set out in R. v.

Neve , 1999 ABCA 206 at para. 102 : Finding someone to be a threat is, in essence, a present determination that an offender will continue to be dangerous in the future, past the date on which he or she would ordinarily have been released from prison for their most recent crime. How is that threat to be determined? Whatever else may be placed on the threat scale this much is clear. No threat can be found without proof of past behaviour which meets at least one of the three separate thresholds under ss. 753 (a)(i), (ii) or (iii).

If any one is met, then the judge is able to go on and determine whether the offender is, based on that evidence, a threat to the life, safety or well-being of others as described in s. 753 (a). If none is met, then the judge cannot find the person to be a “threat” under s. 753 (a). [ 69 ] In determining whether an offender meets the criteria under ss. 753(1) (a)(i), (ii) or (iii) the Court may consider the offender’s past criminal record, the circumstances of their previous offences, the length of their sentences, and the circumstances of the predicate offences: R. v. Wright , 2008 SKQB 268 at para. 188 .

C) Section 753.(1)(a)(i) - Has the Crown established a pattern of repetitive behaviour? [ 70 ] This

section requires proof of a pattern of repetitive behaviour by Reggie Lee Harris, of which the offence for which he has been convicted forms a part, showing a failure to restrain his behaviour and a likelihood of his causing death or injury to other persons or inflicting severe psychological damage on other persons through failure in the future to restrain his behaviour. [ 71 ] In R. v. Casemore , 2009 SKQB 306 , affirmed, 20011 SKCA 14, the Court of Appeal held that while the offences or conduct forming the pattern must demonstrate some similarity, they do not need to be identical.

The Court stated as follows at paragraph 9: 9. A "pattern" does not need to equate to similar fact evidence; general similarity is sufficient. There need not be a lengthy history of violence or aggression for a pattern to be found, so long as there are sufficient elements of similarity in the offender's behaviour. The pattern must contain an element that the dangerous behaviour was not restrained in the past, and there must be a likelihood that the same behaviour in the future will not be restrained and will cause death, injury or severe psychological damage.

Or, alternatively, the pattern must contain aggressive behaviour which demonstrates a substantial degree of indifference to the reasonably foreseeable consequences to the victims of the offence. [ 72 ] A review of Mr. Harris’ convictions reveals that during the 14 years between 1997 and 2010 (ages 15 to 27) he assaulted 11 different individuals. During this same period he threatened two different individuals. Mr. Harris committed assaults when he was 15 (x2), 16, 17 (x2), 22, 23 (x2), 24 and 27 years old. Mr. Harris uttered threats when he was 20 and 28 years of age. Mr.

Harris’ acts of violence largely appear to be impulsive, involving little planning or forethought and do not appear to have been provoked. The acts of violence have occurred in or around the City of Estevan, where he has developed a reputation for fighting. [ 73 ] As a youth Mr. Harris’ acts of violence involved pushing, hitting, slapping and punching others. Most of the injuries to his victims were relatively minor. [ 74 ] Since age 17, Mr. Harris’ violent offences have involved the use of alcohol followed by displays of aggressive behaviour towards others.

As an adult his victims tend to be friends, associates, or strangers who are with him or his vicinity when he has been drinking alcohol. The degree of injury to his victims has increased as he has aged. Bruising, lacerations and broken bones are common. In 2004, Mr. Kopec was struck on the cheek bone just below the left eye causing a cut under the eye, a broken cheek bone and a broken nose. In 2005, Mr. Mehler sustained a three-inch laceration over his left cheek and a two-inch laceration over his right eyebrow. He was also badly bruised. In 2010, Mr.

Shaw sustained a bleeding lip, nose and a bent or cracked nose. He suffered from headaches for several

weeks. [ 75 ] As an adult, Mr. Harris began to use weapons in his assaults. On September 27, 2003, he stuck a pair of scissors in the centre of a steering wheel of a vehicle being driven by Ms. Storlie. Mr. Harris has made frequent use of beer bottles. On October 17, 2003, he threw a beer bottle at Ms. Storlie. On June 20, 2004, he struck Mr. Kopec in the face while holding a beer bottle by its neck. On January 19, 2007, he threw beer bottles at Mr. Hillier and Ms. Stuart. On April 16, 2010, he hit Mr. Shaw on the nose and mouth with a hard blunt object. [ 76 ] Dr. Nicholaichuk also commented on Mr.

Harris’ violent behaviour. At page 38 of his testimony, Dr. Nicholaichuk, testified that Mr. Harris has: This pattern of aggressive behaviour that seems to be more reactive and affective, and a product not so much of an interest in being a career criminal, okay, but a lack of emotional control. And you see from about 13 on, where he’s explosive, he’s got a temper, he’s got a reputation, his buttons are easy to push. [ 77 ] At page 45 of his testimony, Dr. Nicholaichuk, stated as follows: . . . this has been a consistent pattern throughout his life.

He has been - - has had this sort of hair trigger temper, and people like this will even react to a perception of threat even though none objectively is present. Okay. So in that sense there’s a problem with emotional regulation, and to some degree sort of a mental health issue. [ 78 ] At pages 47 and 48 of his testimony, Dr. Nicholaichuk refers to another pattern of behaviour as follows: Usually the pattern for individuals like this is, you know, they are successful for a few months. They become over confident, as I said earlier.

They get this false belief that they can handle it, because they have done well for a while. And of course, they can’t. So they take - - they put themselves in positions and engage in activities that they have understood historically, have always led to negative outcomes for themselves and others, but they get this false sense of confidence.

And I’m not convinced at the - - I mean, clearly, this offence here is a good example where he is able to function temporarily and then for - - I mean, when you think about it, it’s really quite bizarre that somebody with his history would soon decide that, you know, going to the bar and drinking with your buddies would be an acceptable activity. It just doesn’t make any sense. [ 79 ] As previously discussed Dr. Nicholaichuk concluded that unless Mr.

Harris further engages in the process of changing his life, his risk to re-offend violently, will be in the moderate range or perhaps higher. [ 80 ] I find that the Crown has established beyond a reasonable doubt the statutory criteria for designation of Mr. Harris as a dangerous offender under s. 753(1) (a)(

i) and that he constitutes a threat to the life, safety or physical well-being of other persons. D) Section 753(1)(a)(ii) - Has the Crown established a pattern of persistent aggressive behaviour? [ 81 ] This

section requires evidence establishing a pattern of persistent aggressive behaviour by Reggie Lee Harris of which the offence for which he has been convicted forms a part, showing a substantial degree of indifference on the part of Reggie Lee Harris respecting the reasonable foreseeable consequences to other persons of his behaviour. [ 82 ] My previous comments set out in paragraphs 73 to 80 of this decision apply to this analysis. Moreover, it is clear that despite repeated arrest, conviction and incarceration Mr. Harris’ violent offences continue, hence they can be described as persistent.

[83] Dr. Nicholaichuk commented on the persistence of Mr. Harris’ violent behaviour during cross-examination. At pages 90 and91 of the hearing transcript Dr. Nicholaichuk testified as follows: Q But would you agree with me, doctor, that since the -- the Mehlor and Kopeck incidents that took place in the year 2004, we don’thave evidence of escalation in terms of violence. A Perhaps persistence would be a better term. Q Very well.

And -- and even the persistence is, it’s persistent in the sense that in the last several years we’ve had several -- severalincidents, but the frequency is not nearly as high as it could be; would you not agree? A Well, it can always be higher. [84] I find that the Crown has established beyond a reasonable doubt the statutory criteria for designation of Mr. Harris as adangerous offender under s. 753(1)(a)(ii) and that he constitutes a threat to the life, safety or physical well-being of other persons. E) Section 753(1)(a)(iii) - Has the Crown established behaviour of a brutal nature? [85] This

section requires evidence establishing that the behaviour of Reggie Lee Harris associated with the offence for which hehas been convicted was of such a brutal nature as to compel the conclusion that Reggie Lee Harris’ behaviour in the future is unlikely tobe inhibited by normal standards of behavioural restraint. [86] In R. v. Langevin (1984), (ON CA), 45 O.R. (2d) 705, the Ontario Court of Appeal held that conduct whichis coarse, savage and cruel and which is capable of inflicting severe psychological damage on the victim is sufficiently brutal to meet thetest under

section 753(a)(iii), it is not necessary that there be a situation of “stark horror”. [87] In R. v. J.L.A.G., 2002 SKQB 289, at para. 73, “…of such a brutal nature…” was interpreted as behaviour that is so “callous,brutal and senseless as to show a complete lack of appreciation of the value of human life”. [88] I am of the view that Mr. Harris’s behaviour associated with the predicate offence was certainly senseless and showed acomplete lack of appreciation for Mr. Shaw’s life. When Mr. Shaw opened the door to his home in the early morning of April 16, 2010,Mr.

Harris hit him on the nose and mouth with a hard blunt object. This blow cracked his nose and caused his nose and mouth to bleedprofusely. Mr. Harris continued his assault on Mr. Shaw. He kicked Mr. Shaw in the head twice before Mr. Shaw rallied and foughtback. I am of the view that Mr. Harris’ violent behaviour can certainly be described as coarse, savage and cruel and I conclude thatReggie Lee Harris’ behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint. [89] I find that the Crown has established beyond a reasonable doubt the statutory criteria for designation of Mr.

Harris as adangerous offender under s. 753(1)(a)(iii) and that he constitutes a threat to the life, safety or physical well-being of other persons.

F) What is the Appropriate Type of Sentence for Mr. Harris? Indeterminate? Determinate? With or without long-termsupervision? A consideration of s. 753(4) and (4.1). [90] Having found Mr. Harris to be a dangerous offender, the Court must next consider sections 753.(4) and (4.1) of the CriminalCode. I have previously adopted the approach taken by the Alberta Court of Appeal in R. v.

Warawa, supra, that section 753(4.1) createsa presumption that an indeterminate sentence shall be imposed unless the Court is "satisfied by the evidence adduced during the hearingof the application that there is a reasonable expectation that a lesser measure ... will adequately protect the public against the commissionby the offender of murder or a serious personal injury offence." [91] My previous comments set out in paragraphs 29 to 37 of this decision apply to this analysis. I note that Dr. Nicholaichuk

recognized that Mr. Harris’ risk can be potentially mitigated by a number of factors including: (1) his strong work ethic (2) he is notespecially criminalized in his thinking and attitudes (3) his violence seems primarily affectively rather instrumentally driven (4) heappears to have multiple sources of community support available to him and (5) he has a sound offer of employment with Mr. Pool. [92] Dr. Nicholaichuk recognized that Mr. Harris has acknowledged his problem areas (drinking alcohol and associated violence)and has taken some steps in order to address them. At page 17 of his assessment report Dr.

Nicholaichuk stated “For example, althoughhe has relapsed, he attempted to be sober, attended various treatment programs and was able to function to some degree, for almost a yearprior to his most recent arrest”. The evidence shows Mr. Harris worked between September 2009 and June 2010. [93] Dr. Nicholaichuk was of the view that Mr. Harris is in the preparation and to some extent the action phase of the changeprocess, where individuals actively modify their behaviour, attitudes and environment to overcome their problems. Dr. Nicholaichukwas clear, however, that Mr.

Harris must further engage in the process of changing his life. The necessary changes to Mr. Harris’lifestyle are set out in paragraph 36. [94] Dr. Nicholaichuk opined that long-term close supervision offers the best chance of managing Mr. Harris’ risk to re-offendviolently in the community. . At page 83 of his testimony Dr. Nicholaichuk stated “So under some circumstances, like if we let himwalk out of here and in the arms of his buddies, I’d say look out.

But something has to intervene before - - and I believe he has to besupervised before he can learn to live successfully in the community, if that’s going to happen.” [95] Dr. Nicholaichuk was of the view that in addition to addressing the public safety issue presented by Mr. Harris, long-termsupervision would also provide a certain degree of help and assistance to an individual like Mr. Harris so that he could learn how tobehave according to expectations. [9

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