Her Majesty the Queen - v. -, 2014 SKPC 172

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 172 Date: October 7, 2014 Information: 32417083 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Joey Toutsaint Appearing: Sandeep Bains For the Crown Val Harvey For the Accused JUDGMENT B.M. KLAUSE , J I INTRODUCTION [ 1 ] On March 16, 2010, Joey Toutsaint of Prince Albert, Saskatchewan was convicted by Judge Peter Kolenick of the Provincial Court of Saskatchewan at Saskatoon of the following offences: 1) Robbery contrary to s. 344 (

b) of the Criminal Code of Canada;

2) Assault Peace Officer contrary to s. 270(1) (

a) of the Criminal Code of Canada; 3) Threats contrary to s. 264.1(1) (

a) of the Criminal Code of Canada; 4) Obstruction contrary to s. 129 (

a) of the Criminal Code of Canada; and 5) Breach of Recognizance x 3, contrary to s. 811 of the Criminal Code of Canada for failing to keep the peace and be of good behaviour, failing to abstain from the consumption of alcohol, and carrying a knife. [ 2 ] These incidents all occurred on July 25, 2009. On July 28, 2009, the Crown indicated that if convicted, the Crown would be seeking to have the accused declared a Dangerous Offender. The accused was remanded ultimately to February 1, 2010 when his trial began.

The evidence was concluded on February 2, 2010 and the matter adjourned to March 16, 2010 at which time Judge Kolenick convicted him of the charges listed above. [ 3 ] The matter was then adjourned to April 16, 2010 and then adjourned again to May 21, 2010 at which time his lawyer, Allan McGuire, was granted leave to withdraw. The matter was then adjourned several times to facilitate an assessment pursuant to

Part XXIV of the Criminal Code of Canada and set for August 30, 2010 for the Crown to make their formal application. On January 10, 2011 the matter was set down to October 18, 19 and 20, 2011 for the Dangerous Offender Hearing to be held. [ 4 ] The matter was sent to case management with several different defence counsel. On September 15, 2011, Mr. Kozakavich advised he was unable to obtain instructions from his client.

The previously set dates for the hearing were vacated and on September 21, 2011, the Dangerous Offender Hearing was set to commence May 7, 2012 and following days. [ 5 ] On March 9, 2012 the defence advised they were missing some of the disclosure. The May dates were vacated and the matter was adjourned to April 20, 2012 to be spoken to. On that date Ms. Armstrong appeared for the accused and the matter was set for a Dangerous Offender Hearing on January 28, 2013.

The matter was adjourned to October 10, 2012 for case management before Judge Kolenick who advised that he did not feel he should hear the matter and adjourned the matter for a case management hearing before another judge on November 9, 2012. [ 6 ] On November 9, 2012 , Judge Lavoie conducted the case management hearing and confirmed the dates of January 28 to 31 and February 4 to 7, 2013 for the Dangerous Offender Hearing. On January 3, 2013 the matter was brought forward at the request of the Court as Judge Kolenick was no longer available to carry on the matter and it had to be reassigned to another judge.

On January 18, 2013, Judge Irwin was advised that Rural Legal Aid was not available for the dates set and the matter was adjourned to June 24-27 and July 22-25 for the Dangerous Offender Hearing. Ms. Armstrong withdrew and Ms. Harvey became counsel of record. [ 7 ] On June 24, 2013 the Dangerous Offender Hearing commenced before me and continued into July with the calling of Dr. Roger Holden and the final evidence being presented with the calling of the defence expert Dr. Mansfield Mela and the accused. The matter was then adjourned to March for argument. II The Relevant Legislation:

Part XXIV of the Criminal Code of Canada

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 (

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

b) of the definition of that expression in

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

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

a) or (

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

(2) An application under subsection (1) must be made before sentence is imposed on the offender unless (

a) before the imposition of sentence, the prosecutor gives notice to the offender of a possible intention to make an application under

section 752.1 and an application under subsection (1) not later than six months after that imposition; and (

b) at the time of the application under subsection (1) that is not later than six months after the imposition of sentence, it is shown that relevant evidence that was not reasonably available to the prosecutor at the time of the imposition of sentence became available in the interim.

(3) Notwithstanding subsection 752.1(1), an application under that subsection may be made after the imposition of sentence or after an offender begins to serve the sentence in a case to which paragraphs (2)(

a) and (

b) apply.

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

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

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

(

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

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

b) or (

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

(4.2) If the application is made after the offender begins to serve the sentence in a case to which paragraphs (2)(

a) and (

b) apply, a sentence imposed under paragraph (4)( a ), or a sentence imposed and an order made under paragraph 4( b ), replaces the sentence that was imposed for the offence for which the offender was convicted. [ 8 ] Further: 753.1

(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that (

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

b) there is a substantial risk that the offender will re-offend; and (

c) there is a reasonable possibility of eventual control of the risk in the community. . . .

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

a) impose a sentence for the offence for which the offender has been convicted, which must be a minimum punishment of imprisonment for a term of two years; and (

b) order that the offender be subject to long-term supervision for a period that does not exceed 10 years.

(3.1) The court may not impose a sentence under paragraph (3)(

a) and the sentence that was imposed for the offence for which the offender was convicted stands despite the offender’s being found to be a long-term offender, if the application was one that (

a) was made after the offender begins to serve the sentence in a case to which paragraphs 753(2)(

a) and (

b) apply; and (

b) was treated as an application under this

section further to the court deciding to do so under paragraph 753(5)( a ).

(4) and (5) [ Repealed , 2008, c. 6, s. 44 ]

(6) If the court does not find an offender to be a long-term offender, the court shall impose sentence for the offence for which the offender has been convicted. [ 9 ] The Crown does not intend to 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). [ 10 ] The Crown makes application to have the accused declared a Dangerous Offender (DO) based on s. 753(1)(a)(i); a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part or (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. [ 11 ] The Defence, while admitting that the robbery offence meets the definition of serious personal injury, submits that the Crown has not established a pattern of repetitive behaviour or a pattern of persistent aggressive behaviour.

They submit that he should not be declared a DO, that he should be found, in the alternative, a Long-Term Offender (LTO) sentenced on the offence as charged without either designation.

III Criminal History of the Accused [ 12 ] The Crown filed three binders of documents (Exhibits P1-P3) outlining chronologically the accused’s entire criminal record, supported by copies of all Informations and endorsements and where possible, transcripts of the evidence presented or the sentence imposed. [ 13 ] On May 29, 2002, at age 15, the accused was convicted at La Ronge, Saskatchewan for careless use of a firearm, uttering threats, break enter and theft and failing to attend court.

The facts were relatively straightforward: the accused shot a pellet gun at a pedestrian walking by his residence in Black Lake, Saskatchewan. The victim believed he was hit in the hand and suffered minor bruising. The uttering threats was directed at a security person employed by the Band at Black Lake to enforce a curfew. At the time of his apprehension for breach of curfew, the accused threatened the security person that he would shoot and burn his house down. The break and enter occurred at a residence in Black Lake.

The accused was found in a house and had piled several items from within the house near the back door which he and another individual were rounding up and planning to steal. He was caught at the scene by the residents of the home who returned to find the accused and another young offender in their residence. For these offences the accused received 12 months probation. [ 14 ] On July 8, 2003, the accused was again convicted of utterings threats, mischief under $5,000.00 and failure to comply with his Youth Court disposition. The accused and a co-accused were sniffing gas at the complainant’s residence.

She kicked them out of the house but they returned and proceeded to pour gasoline on a rock next to the house and light it on fire. Billy Robillard, the security man and fire chief on the reserve witnessed the incident and attempted to stop the boys from their activity. They responded with a threat to shoot him if he reported them. The breach of Youth Court disposition was a curfew breach.

He received six months custody and three months community supervision, concurrent, followed by nine months probation. [ 15 ] On each of July 14, 2003, September 12, 2003 and November 28, 2003, he was convicted of escaping lawful custody contrary to s. 145(1)(

a) and sentenced to 15 days, 40 days and 70 days respectively. [ 16 ] On December 6, 2004, he was convicted of mischief over $5,000.00, three counts of failing to comply with his recognizance and two counts of assault for which he received two years probation. These assaults were on workers at the Youth Facility and were minor in nature. He also was convicted of mischief as he was advised he would be taken to closed custody as a result of the assaults and in retribution he smashed his toilet, threw it around his room and destroyed his mattress. He was sentenced to two years probation.

[ 17 ] On December 10, 2004 he pled guilty to one count of breaching his curfew. He was intoxicated when he was arrested. He was charged again with breach of his conditions by consuming alcohol on December 25, 2004, for which he received 20 days closed custody followed by 10 days of supervision. Further breaches of the same Probation Order occurred on February 1, 2005, resulting in a 30 day sentence on February 14, 2005.

This was also his first adult sentence and it appears he was released from custody on March 5, 2005. [ 18 ] On September 22, 2005, age 18, Toutsaint was sentenced to his first penitentiary term, at his request, for 14 various offences, to 2 years in custody with various 6 month maximum concurrent terms. The offences ranged in date from March 15, 2005 to August 25, 2005 including 7 convictions of failing to comply with court-ordered conditions.

While he was in custody awaiting such release, he committed the offence of mischief (s. 430) by damaging a Prince Albert Provincial Court holding cell and inscribing gang identifier “ TZ ” into the wall. One week after release, he breached conditions by committing an assault against a peace officer on March 22, 2005 while being outside of his curfew and being under the influence of alcohol and failing to keep the peace, all contrary to his recognizance.

It appears that he was again released on a third occasion on April 13, 2005 on an undertaking before breaching his conditions on May 7 and May 11, 2005 by violating curfew and keep the peace conditions. While in custody for these offences, Toutsaint uttered threats to correctional workers on August 16, 17 and 24, 2005. [ 19 ] On April 12, 2006, he was convicted of assaulting a peace officer (s. 270) on October 20, 2005 and received three months consecutive.

He had been asked to remove a blanket from the front of his cell several times and responded to the correctional officer by swearing at her and then throwing a bag of water towards her, not intending for it to break, which exploded upon impact with the cell causing its contents to splash on the officer’s face. [ 20 ] On September 25, 2006, age 19, he was convicted of a sexual assault that he was alleged to have committed during a release period on outstanding charges in the spring of 2005. This resulted in a 12 month concurrent term in custody.

The facts noted in the transcript indicate that consensual vaginal sex occurred between Toutsaint and a 13 year old female, but that Toutsaint did not take reasonable steps to ascertain her age. The sentence did not impact Mr. Toutsaint’s eventual release date. He was also sentenced to a corresponding count of breaching his probation (s. 137). [ 21 ] On April 20, 2007, Toutsaint was sentenced to a fine on a charge of assault police officer – s. 270(1) (

a) that occurred on October 16, 2006 in which it was alleged that urine (but found by the Court to be water) was directed at a correctional officer. [ 22 ] On April 24, 2007, he was sentenced on two threat incidents which had occurred on October 14, 2006 to 30 days consecutive on each count. In one instance, he feigned a punch intimating that he would strike a corrections officer, coming within inches of her face. In the second instance he swung a metal tray at another officer, causing a reaction but no contact.

Afterwards he made comments including, ” I am going to fuck you up so bad you don ’ t even know it, you are going to get it bad when I get out of here ” and “ I ’ ll fucking get you, you fucking cunt ” . [ 23 ] On August 29, 2007, Toutsaint, age 21, was convicted in Edmonton, Alberta of one count of arson contrary to s. 433(a), having lit a fire in his cell on October 23, 2006, causing $445.00 damage but no injuries to either himself or corrections staff. His warrant expiry date was adjusted to March 20, 2008.

As he approached his warrant expiry date, he was released from segregation from the Edmonton Institution to be transferred to the Saskatchewan Penitentiary. He was produced to appear in Prince Albert Provincial Court prior to his release at the conclusion of his sentence to face an allegation under s. 810.2 indicating that the informant “… says he has reasonable grounds and probable grounds to fear and does fear that Joey John Toutsaint, January 13, 1987, will commit a serious personal injury offence as defined in

section 752 of the Criminal Code …” . He entered into an undertaking on March 19, 2008 and the matter was set for hearing on May 5, 2008. [ 24 ] On June 5, 2008, he was convicted of two counts of failing to comply with his undertaking contrary to s.145(3) . On April 5, 2008, shortly after release from the penitentiary, Toutsaint breached the conditions of his undertaking by consuming intoxicants and violating his curfew and was sentenced June 5, 2008 to 60 days time served. He had been in custody since his arrest on April 5, 2008 after having been in the community for just over 2 weeks. He entered into the

section 810.2 recognizance on the sentencing date for a period of 1 year. [ 25 ] On August 22, 2008, he was convicted after trial of two counts of breach of recognizance contrary to s. 811 and one count of failing to comply with his Probation Order contrary to s. 733.1(1). He had violated the terms of his preventative recognizance on June 12, 2008 (just seven days after his release on June 5, 2008) and on June 14, 2008 by violating his curfew and consuming

intoxicants respectively contrary to s. 811 of the Criminal Code. Additionally, he was on a Probation Order from his 2005 convictionand breached the peace on June 14, 2008.

Convictions were entered on two of the matters after trial on August 22, 2008 and he received70 days in custody time served with probation to follow for 9 months. [26] On October 6, 2008 at Prince Albert, he was convicted of uttering threats contrary to s. 264.1, four counts of breachof probation contrary to s. 733.1(1), two counts of breach of recognizance, contrary to s. 811, two counts of fail to comply withrecognizance, contrary to s. 145(3) and one count of assault, contrary to s. 266 and received six months incarceration on each count,concurrent to each other.

This conviction stemmed from an incident on October 3, 2008 when he was charged with assaulting MonicaCharles (s. 266), uttering a threat to her to cause her death (s. 264.1(1)(a)), breaching his probation (s. 733) by failing to keep the peace (x2), breaching his preventative recognizance (s. 811) by failing to keep the peace and consuming intoxicants, and breaching hisoutstanding undertaking by failing to keep the peace and consuming intoxicants. Police were called to a domestic complaint where theynoticed Toutsaint had a woman in a headlock.

He had struck her in the head five times that day and in a jealous rage was threatening tokill her. She had a bruise and a large scrape on her cheek. When police arrived, he was aggressive, holding her head, and she wascrying. He was argumentative and intoxicated. [27] On February 12, 2009, he was convicted of assault contrary s. 266. The offence occurred on December 3, 2008,during his sentence at the Prince Albert Correctional Centre, when he committed an assault on Raymond Roberts, a fellow inmate.Toutsaint had charged and attacked Roberts in the shower room. A sharpened pencil was found on his person.

Conviction was enteredafter trial and he was sentenced to another 6 month term in a provincial correctional centre consecutive to his current term. [28] On June 12, 2009, Toutsaint entered into another preventative recognizance (s. 810.2) towards the end of hissentence. After his release on the s. 810.2 recognizance, he breached it on 3 different occasions (s. 811 x 3). First, on June 18, 2009 byfailing to keep the peace and not complying with his curfew clause by not being in his residence when police checked on him at 11:51p.m.

Secondly, on June 23, 2009 by not reporting to his Probation Supervisor and thirdly, on July 2, 2009 by not complying with hiscurfew when police again checked his aunt’s residence. In this time period, Toutsaint was also charged with not reporting to the SexOffender Registry as required (a reminder letter had been sent to him while he was serving) on June 28, 2009. All of these matters wentto warrant status out of Prince Albert and Toutsaint relocated to Saskatoon during that time.

He was convicted of these offences after hisarrest on the predicate offence, along with subsequent others (noted below), on August 26, 2010 receiving 3 months consecutive on the s.490.031 and 8 months concurrent for the s. 811 breaches. [29] On July 25, 2009, Toutsaint committed several offences in Saskatoon while on warrant status on the Prince Albertmatters. After trial he was convicted of robbery against Matthew Kuin (s. 344(b)), assault peace officer against Sgt. Ward (s. 270(1)(a)),uttering threats against Sgt.

Ward (s. 264.1(1)(a)), obstruction (s. 129(a)), breaching the s. 810.2 recognizance by possessing a knife, andfailing to keep the peace and by consuming alcohol (s. 811 x 3). The facts are outlined in the decision of Judge Peter Kolenick, J. datedMarch 16, 2010, reported at 2010 SKPC 15 , 2010 SKPC 015 with the headnote stating as follows: Trial of the accused on charges of robbery, assaulting a Peace Officer, uttering a threat, obstruction, four counts of breach ofrecognizance, unlawful confinement and two counts of carrying a concealed knife.

The complainant testified the accused took $20 andproperty from his backpack, after acting aggressively with a knife. The accused's friend, Patrick Rooney, gave confirmatory evidence thatthe accused committed the robbery. The complainant and Rooney managed to physically separate themselves from the accused, butreturned to the scene out of concern for their friend Jim. The accused denied taking anything by force, saying the complainant and hisfriends had agreed to share with him. The accused confirmed he was intoxicated as a result of consumption of alcohol and smokingmarijuana at the time of the alleged offences.

The accused provided false identification particulars to Detective Sergeant Ward, whostruggled with the accused to get the handcuffs on. The Detective seized a bottle of liquor from a baby carriage when he arrested theaccused. The accused threatened the Detective while in the back of the police car and spat in the Detective’s face, mouth and eyes in thebooking area. The detective heard a knife fall to the floor in the detention bay, which was seized and entered as an exhibit. The detectiveconfirmed another officer had located a second knife in a pocket in the accused's pants and a second liquor bottle.

The Detective did notsee any of the knives. The breach of recognizance charges were in relation to the conditions to keep the peace, abstain from thepossession and consumption of alcohol and drugs, to not possess a knife and to carry a copy of the recognizance order. The accusedtestified that he had a copy of the recognizance order on him on the day in question, but had lost it during the day, perhaps during hisstruggle with the police. [30] Further details of the offence are contained in Judge Kolenick’s

summary of the Crown’s principle witnesses: Review of the Evidence for the Crown

Matthew Kuin, the Complainant On July 25, 2009, the complainant, age 22, had earlier been at a birthday party. He had attended there with his two friends, Patrick and Jim. When it was over, the three headed to the riverbank and ended up on the west bank where they were strolling along, socializing and drinking. As they made their way, the group encountered a male native person, who invited them into an area of thick reeds and bush, to party with his friends. The complainant and Patrick were suspicious of the offer, but they followed Jim down the path to where the party was supposed to be, through heavy reeds.

However, the complainant also carried with him his backpack, which contained the remaining beer from a twelve pack which he had taken to the birthday party, as well as other articles. The party location included a picnic table, at which, in addition to the accused and one or two other males, was also a woman with a baby in a carriage. They remained at the picnic site for roughly one hour. During that time, there was socializing with the group, sharing the accused's bottle of whiskey, as well as another bottle of whiskey, which had been placed in the complainant's backpack.

At one point the complainant and Patrick decided to flee for their own safety, because of the accused's aggression. However they ended up returning at least once because they feared for the safety of their friend Jim who had not ran with them. Regardless, the accused was identified in the prisoner's dock as the person responsible for the alleged misconduct which he had suffered. Before he had been able to escape, the accused had held a knife in his hand toward them, which he had pulled out and said "don't fuck around". The complainant was afraid and he wanted to comply.

He patted them down, saying "don't ditch, or I'll gut you". The woman with the baby carriage said words like "don't worry, he acts like that when he's drunk". Indeed the complainant did believe that the accused was drunk by the nature of his actions and words. The accused had taken from the complainant the property which was in the backpack. In the meantime, the complainant was very nervous for his own safety. The accused had a knife behind his back and asked their friend Jim "are you a rat"? Jim replied that he was not.

As well, the complainant confirmed that one of the knives which had been entered as an exhibit herein appeared similar to the one which was allegedly being used by the accused. Finally, when the accused came at them again in a threatening way, they were able to run away. In the meantime, the accused had taken $20.00 from the complainant, because of the complainant's fear for his life from the knife which he had kept in his back pocket when not using it on them.

Once the complainant and Patrick had managed to escape, they ran on foot to get help for Jim, who had remained behind at the camp with the accused and his friends. The complainant spoke to the police, but could not express clearly the concern for Jim because of the excitement and the emotional trauma he had suffered. He denied that his problems in that regard were from alcohol consumption, and that he had only been very slightly intoxicated. As well, he had been able to identify the accused as the alleged perpetrator, by among other things, the large tattoo "menace", on his stomach.

Patrick Rooney In his testimony, Mr. Rooney confirmed that the three friends had arrived at the riverbank location at roughly 2:00 p.m. or 3:00 p.m. Prior to that he had two drinks at the party, and two at the river before their alleged encounter with the accused. After approximately one hour of socializing, they met a male who invited them to the picnic site where the accused was located. He was aggressive from the outset, accusing Mr. Rooney of some misdeed with the accused's cousin, and holding a knife to his throat while doing so.

They were scared by his actions and ran off, but returned because Jim had remained behind. Mr. Rooney and his friends remained at the picnic site for roughly one hour. Throughout their stay, he felt uneasy and on edge, because he thought they would be stabbed. The knife which the accused had produced appeared to be similar in appearance to one of the two which the Crown had entered as an exhibit. The accused had told them at the time that he wanted them to stay and drink or else "I'll stick you". As well, he had pulled out the knife on Jim. He had also asked Mr.

Rooney if he had any money before they had managed to escape to seek help from the police for Jim who had remained behind. In cross-examination Mr. Rooney indicated that he also had a bottle of rye which had not been cracked, and which had been part of the liquor that was being consumed at the picnic site. The accused had claimed Mr. Rooney had stolen it. Prior to reaching the picnic site, he was aware of Jim saying “ whoa there is no problem ” , so he returned to where he had been to see if his friends were having any problems with the accused.

When he reached where they were, the accused took out a knife and held it to Mr. Rooney's throat, so they followed him to the picnic site. While they were there, before they ran off, the accused asked Mr. Rooney for money, while holding a knife to his stomach, and felt his pockets. He had wanted them to remain, and took the complainant ’ s backpack from him, before they had ran off. He said that they were not leaving, or would get “ stuck ” .

As well, he pulled a knife and told them to come back, but they ran instead, to get help for Jim. [ 31 ] The s. 344 offence is the predicate offence for the present hearing and all other offences are for disposition. Toutsaint was remanded upon his arrest on July 25, 2009 for these and the outstanding warrants from Prince Albert and has been in custody since that time, but as a serving prisoner since August 26, 2010 as outlined below. [ 32 ] On April 28, 2010, Toutsaint was convicted of possession of a weapon contrary to s. 88 and was sentenced to one

day time served. The facts essentially indicated that on November 27, 2009 Toutsaint was unhappy about an extraction from his cell and produced a metal shank made from a sharpened pail handle and held it up to the guards.

They were able to deploy pepper spray and he surrendered the shank by placing it in the toilet. [ 33 ] On August 26, 2010, Toutsaint was convicted of carrying a concealed weapon contrary to s. 90(1), uttering threats contrary to s. 264.1(1)(a), four breaches of s. 811 , failing to register for SOIRA , contrary to s. 490.031 and mischief under $5,000.00, contrary to s. 430(4). [ 34 ] While on remand on the July 25, 2009 offences, Toutsaint uttered threats to Janean Bosin to cause her harm (s. 264.1(1)(a)) on September 5, 2009 by stating he would stab her and kill himself; committed mischief (s. 430(4)) by damaging a sprinkler head in a jail cell on October 5, 2009 in a reaction to an institutional charge of covering his window with toilet paper; and carried a weapon (s. 88 – metal object with sharp point) dangerous to the public peace.

On August 26, 2010, he was sentenced for the threats on Bosin, the damage to the sprinkler head, and the carrying of the concealed weapon of December 8, 2009 with the various breaches referenced above, to a 26 month penitentiary term. [ 35 ] On September 13, 2010, Toutsaint was convicted after trial of uttering threats contrary to s. 264.1(1)(

a) and assault causing bodily harm, contrary to s. 267(

b) and sentenced to a 14 month consecutive term in the federal penitentiary. The facts indicated that Toutsaint was being moved from his cell to a visitor ’ s pod and refused to go. The staff entered the cell and Toutsaint picked up his mattress and placed it before him. He was told they did not have their pepper spray and he threw his mattress into the corner of his cell and then raised his closed hands before him in clenched fists. They attempted to get him to desist and when they placed a hand on his shoulder, he punched Officer Beaudry in the nose.

The other officers then attempted to bring Toutsaint down and he continued to punch at them. Beaudry suffered a deviated septum and a black eye. After Toutsaint was under control, he threatened Vanzandbergen and the other officers that, “ if he had a shank he would get us ” . [ 36 ] On October 21, 2010 Toutsaint was convicted of uttering threats, contrary to s. 264.1(1)(a), assault contrary to s. 266 and carry a concealed weapon contrary to s. 90.

The facts indicate that he uttered a threat to cause death to Jyl Targerson (s. 264.1(1)(a)) on March 15, 2010 upon being advised that he was being moved from a secure cell to a holding unit by stating, “ Fuck you, cunt.

I will fucking kill you ” , committed an assault on Mark Stiglitz (s. 266) on March 29, 2010 by throwing a container of an unknown liquid at him through his cell which landed on the floor, some food trays and the guard ’ s boots all the while yelling “ here, have some piss ” , and carried a concealed weapon being a knife (s. 90) on May 23, 2010 when a knife fell out of his shirt sleeve being 4 ½ inches long. He received a sentence of 12 months concurrent. [ 37 ] On April 12, 2013 in Edmonton, Alberta he was convicted of two counts of assault peace officer contrary to s. 270(1)(

a) and was sentenced to six months consecutive to time being served but concurrent with each other. The facts at sentencing were that Toutsaint was being escorted by guards at the Edmonton Institution when he pushed a meal trolley down the stairs towards the guards escorting him, striking one in the shoulder and arms but causing no lasting injury. After gas was used to control him and lodge him, a later cell check led to Toutsaint spitting in the faces of two other officers.

IV System Intervention [ 38 ] Toutsaint’s justice history is almost entirely composed of offences involving justice workers, mostly guards at the various correctional facilities where he has been incarcerated. Since he has spent most of his life in these facilities, this is where most of his interaction with authority figures has occurred. [ 39 ] Toutsaint’s history is well documented in the voluminous files offered by the Crown during this Dangerous Offender sentencing process. In Offence Binder 1 at Tab 6 there is a Pre-Sentence Report dated December 1, 2004 authored by Ms.

Arlene Rask: Joey is a member of the Black Lake First Nation. His first language is Dene. This youth enjoyed caribou hunting and fishing with his grandfather when he lived in Black Lake. Joey has participated in drummer dancing and attended Pow Wows. Joey’s Aunt states Black

Lake does not offer a lot in respect to Cultural Ceremonies and the family was more involved in attending the Catholic Church. In reference to the Gladue Ruling, Joey has been affected by circumstances unique and different from those of non-aboriginal offenders. Joey is an aboriginal youth who was raised by his maternal grandfather in the northern community of Black Lake. According to the family this is a violent community affected by poverty. Joey experienced a chaotic dysfunctional childhood and was exposed to alcohol abuse and neglect.

This youth also experienced separation from family as he was raised in a different home than his siblings. A combination of background factors which include poverty, separation from family, alcohol abuse, and community breakdown may have contributed to Joey’s involvement in the Criminal Justice System. Joey’s mother, Lucy Broussie, was involved with Department of Community Resources & Employment due to concerns of neglect, alcohol abuse, children acting out of control (ie: setting fires) and no parental supervision dating back to 1995.

There is documented information in the Family Services file dated 1995 and RCMP files dated 1997 this youth has been involved in setting fires. Lucy’s children were apprehended and placed in foster care in 1999 and 2000. Joey was raised by his grandfather until his death in 2002 at which time he then relocated to Prince Albert to reside with his mother. On October 6, 2002 Joey’s mother died as a result of a tragic pedestrian/car accident in front of their home.

Joey was home at the time and witnessed his mother at the scene of the accident. [ 40 ] Also in her report under “Additional Concerns/Client Issues”: Joey demonstrates difficulty with complying with conditions of community based dispositions and has had 27 documented incident reports while serving in secure custody facilities as well he has escaped lawful custody on three occasions. Further, Joey has re-offended by assaulting authority figures while serving custodial sentencing at North Battleford Youth Center, Prince Albert Youth Center, and Kilburn Hall.

Joey has been restrained and room confined as a consequence for his assaultive behavior to staff which include; using inappropriate sexual language to female staff, spitting, swearing and physical assaults. At age 17, Joey has a grade five level which indicates under achievement and it would be difficult for him to attain employment due to the language barrier as well as lack of education. [ 41 ] In a report authored by Dr.

Brian MacDonald and dated April 13, 2004 (Offence Binder 1, Tab 6) this opinion was offered: Mental Status: At the time of the current interviews, Joey presented as an agitated, only marginally stable youth. It was noticeable that he had difficulties controlling his emotionality and that it was very easy to upset and anger him. The examiner had to be very careful to proceed in a calm and slow fashion and to respond to his emotionality immediately and resolve any concerns before he completely lost control.

Following these methods it was possible to continue the assessment but even then there was a point where the interview and psychological testing could not continue due to his emotionality his presentation suggest a youth who has limited to no ability to respond to modulate or control his feelings of anger, frustration and upsetness except to get angry, threaten and maybe react in a dramatic fashion.

His problem solving skills seem to be remarkably limited. [ 42 ] Later in the same report entitled “Summary”: Joey (age 17) presents as a youth with an extensive history of solvent abuse, minimal schooling and a childhood history consisting of limited structure and a chaotic lifestyle with substance abuse in the family. It is difficult to determine the full extent of his schooling but clearly his lack of schooling, inhalant abuse and the lack of structure in his early life has had a major impact on this youth. His functioning level in the community and in custody would both be viewed as extremely poor.

His presentation suggests a youth who is not able to comply with many expectations and instead simply responds to whatever impulse occurs to him. His major areas of difficulty seem to be with verbal processing (which appears to be around the handicapped range), academic development (which appears to be around the grade one or two level), emotionality and impulse control which appears to be close to non-existent. Impulse control, emotionality and difficulties in controlling impulses tend to be associated with solvent abuse. [ 43 ] In the context of Toutsaint’s continued involvement with the justice system, Dr.

MacDonald’s observations from 2004 regarding impulse control are eerily prescient. [ 44 ] Dr. Zahid Wasti, MD, MA saw Toutsaint six months prior and in a letter dated November 20, 2003, came to much the same

conclusion: It is my clinical judgement that his intellectual functioning is at quite a low level. He does not seem to comprehend the rules, the regulations and the consequences of his behaviors while he is in closed custody. He seems to get easily frustrated as he is given excessively severe consequences for his behaviors. For example he was recently confined to his room for four days. When he expresses his frustration and anger he is dealt with q uite severely. I happened to be in the facility on Jan. 7, 2004 when he was involved in a “take down”.

Several staff went in to his room with a shield and brought him down. A few minutes later I heard him crying and moaning with pain while he was in the seclusion room.”(Offence Binder 1 Tab 5). [ 45 ] Despite some modest success while on a reporting Probation Order, Toutsaint was again sentenced to two years in a federal facility on September 22, 2005 on charges of sexual assault, uttering threats, mischief, assault causing bodily harm, assault peace officer, and seven counts of failing to comply with conditions of his release.

Prior to his sentence, Psychiatric and Psychological Reports were prepared by staff at the Saskatchewan Hospital. Due to his very aggressive behaviour at the hospital, his stay there was extremely brief. Dr. Ramachandran concluded he was fit to enter a plea to his outstanding criminal charges. He did however exhibit the usual behaviours for which Toutsaint has become infamous; at page 4 of his report dated September 8, 2005: He has been very demanding and wanted things his own way and immediately. It was felt that he needed structure around him.

He was observed to be testing the ward rules and required a firm approach. Although he continued to push limits initially he was manageable. When his demands were not met he became very insulting to staff. He appeared to have an excessive level of anger and potential for aggression and violence. Because of this he was given medication to calm himself down which he took readily. On August 28, 2005 Joey Toutsaint was reported to have been increasingly agitated, defiant and argumentative as well as demanding, challenging and threatening.

When he was advised to go to the Intensive care room to reduce stimulation, he refused. Instead he was lying down in front of the room. He began threatening to kill and knife the staff and bit a staff on the hand. He was also spitting. Joey pulled the blinds and tried to pull the drawers off the desk. During these aggressive behaviors he did not show any evidence of psychosis or manic state. [ 46 ] In December of 2005 he was admitted to the Regional Psychiatric Centre in Saskatoon for an assessment. A report was prepared by Dr. Akin Peluola who reached this conclusion: Mr.

Toutsaint presented with florid behavioral problems during this most recent admission to the RPC(Prairies). He was abusive, antagonistic to staff and refused to cooperate with rules and regulations. He was irritable, angry and very demanding, seeking attention constantly. He would bang on his cell door repeatedly whenever his needs were not met immediately. He could not delay gratifications. He made attempts to flood his cell with water and cover the CC TV camera. Mr. Toutsaint displayed low frustration tolerance but there was no evidence of serious mental disorders.

However, it is observed that he has potential for aggression and violence. He should benefit from residing in a very structured and supervised environment to manage the risk he could pose to others. It is recommended that he takes anger management and chemical dependence treatment programs.....” [ 47 ] In April of 2008 more reports were prepared as Toutsaint had been recently released from the Saskatchewan Penitentiary and had now breached his s. 810.2 order.

In that report, the Bail Officer stated as follows: While in custody, the subject says he did nothing to improve his circumstances, took no programming to reduce his risk and in fact assaulted correctional staff as well as other inmates, which resulted in his being sentenced to concurrent and consecutive time in custody. The subject served his sentence right to the warrant expiry dates, with no parole. The subject has never worked, never had any training for employment, and in fact has no identification to assist him in that regard.

His ability to reside independently is severely compromised by the fact that he has no employment skills or experience by which to support him financially. He claims that the gang is the only family that he has, and that despite trying to extricate himself from this “organization” he was not allowed to leave, and that these are the only associates he knows. The subject has no insight to his risk, and consequently no ability to propose behavior change to reduce this risk.

The subject stated that if he doesn’t get his way and get out of custody, he will likely “stab someone up” out of frustration....” (Offence Binder 2 Tab 15). [ 48 ] Contemporaneously, Gary Bridge, a registered psychologist, noted the differing views as to Toutsaint’s mental capacity and recommended a Neuropsychological/Cognitive Assessment to be completed by a qualified psychologist.(Offence Binder 2 Tab 15) [ 49 ] Mr. Toutsaint was released June 5, 2008 but was back in court by June 16, 2008 on more breach charges. He was

subsequently transferred once again to the Saskatchewan Hospital for Psychiatric and Psychological Reports for the Court. In true form, Mr. Toutsaint once again abused the staff at the hospital and was abusive and inappropriate with female staff. Dr. Ramachandran concluded that Toutsaint suffered from no mental illness and was fit to plead: Mr. Toutsaint grew up in an unstable, dysfunctional home. His mother was an alcoholic. He had no contact with his father. He had limited academic achievements and no vocational experience. He began to experience alcohol related problems since early adolescence. As a youth, Mr.

Toutsaint was diagnosed with Conduct Disorder. As an adult, he has shown repeated failure to confer to social norms with respect to lawful behaviors. He has significant anger management problems, impulsivity and potential for aggression and violence. In addition to Antisocial Personality, Mr. Toutsaint is socially immature, lacks social skills, and does not respect personal space. I did not find any evidence of mental illness. From a treatment and management perspective, Mr.

Toutsaint is advised to address poor anger control and alcohol dependence and learn the necessary social skills required to function well in the community. He could benefit from participating in appropriate psychosocial programs offered through Mental Health Centre and Correctional Services (Offence Binder 2, Tab 16). [ 50 ] At the same time, a report was co-authored by Dr. R. Brown a registered psychologist at the Saskatchewan Hospital and E.Y. Rohas, a University of Saskatchewan clinical psychology intern.

The report concluded that his intellectual abilities were average, that he was able to demonstrate reasoning and problem solving: He was alert and did not show evidence of attention or concentration problems. His speech rate, volume, and flow were normal. His tone of voice was low but did not interfere with our communication. Mr. Toutsaint answered questions relevantly and remained on topic; in addition, his ideas were connected logically. His speech content did not present evidence of delusions, obsessions, or compulsions. Thus it was clear that Mr.

Toutsaint did not present evidence of a disturbed thought process or content. Moreover, there was no objective or subjective evidence of perceptual disturbances, namely hallucinations. He appeared relaxed during the interview, and on a few occasions, he smiled shyly, for example when he answered questions about his intimate relations. Together, Mr. Toutsaint did not present evidence of a psychotic disorder. Equally important, nursing staff documented numerous instances in which Mr. Toutsaint was demanding, sarcastic, verbally abusive, challenged authority, and was sexually inappropriate with female staff.

Although Mr. Toutsaint said that he would attempt to control his behavior, nursing staff noted that his attempts were short lived. Consistent with their reports, Mr. Toutsaint asked me a few personal questions during testing, including whether “we could be friends.” I talked to him about personal boundaries and inappropriate behavior. It was clear that Mr. Toutsaint understood what was being said to him, but that he was testing limits. [ 51 ] This led to a diagnosis of symptoms consistent with Alcohol Dependence and Antisocial Personality Disorder.

She recommended group and individual treatment to focus on reducing violent behaviour. [ 52 ] Thereafter most of his time was spent in jail and in regard to any criminal offences while incarcerated, there was reliance on existing reports as described above. He was ultimately convicted of the predicate offence and a Dangerous Offender Assessment was completed which led to this hearing. V Evidence James Gonzo [ 53 ] Mr. Gonzo is with the Correctional Service of Canada and started employment in 1998.

He is a very experienced individual and in this particular case, prepared the binders offered as exhibits by the Crown, referred to as CSC Documents. He has had no personal contact with Mr. Toutsaint but it is his job to review those inmates for whom segregation becomes an issue. He also explained how the parole system works and many aspects of dangerous offender sentencing. It is his job to try and integrate inmates into available programming, designed to get them skills that they need so that they can obtain parole and eventual release into the community, depending on their individual needs. Mr.

Gonzo was very concerned about the amount of time Toutsaint was spending in segregation, being 23 hours per day in his cell and one hour out for exercise or a shower. Mr. Toutsaint has spent the bulk of his federal time in segregation. He has consistently refused to come out of segregation because those individuals who do come out of segregation are required to do the programming. Ultimately Toutsaint was transferred to Edmonton as it would be a new environment with new staff and hopefully he would attempt programming. This was not to be the case. On October 22, 2006, he slashed himself and set fire to his cell.

Periodic searches of his cell would turn up primitive weapons. He continued to use rude and insulting language with the guards and most importantly, he essentially refused any kind of programming, spending up to 23.5 hours a day in his cell. His rebellious behaviour is extensively and meticulously chronicled in Binder 2 of the CSC Documents at Tab 81.

Gary Cotfas [ 54 ] Gary Cotfas is a psychologist with Correctional Service of Canada at the Edmonton Institution since 1996 and is involved with assessment and counselling. He has interviewed Mr. Toutsaint. He concluded that Mr. Toutsaint is low functioning, low education and is not sophisticated in any way. He found no major psychiatric symptoms. He concluded Mr.

Toutsaint was a very high risk in terms of general violence, has no real sense of responsibility, very little knowledge of consequences and has major trust issues with everyone in law enforcement: Being raised without structure, without discipline, without a positive authority figure or intervention, even on a reserve, from what I understood, and having to suffer different accidents, or problems in his life, related to law enforcement, including the death of his mother. [ 55 ] In his opinion, this behaviour was likely due to being raised in northern Saskatchewan, being under-socialised, and then thrust into the drug and gang life in Prince Albert with no positive authority figures in his life.

Black Lake is the only place where he feels comfortable. He agreed that once you develop a bad reputation in the prison system, it follows the individual through all of the institutions based on the documentation. Sherry Anderson [ 56 ] Ms. Anderson works at the Saskatchewan Penitentiary and was Toutsaint’s first parole officer. She described his primary need in the area of attitude, hatred to police/corrections, anger and impulsiveness and felt he had a high need for intervention in each of these areas.

She was concerned about his zero family involvement; his father was in jail, his mother and Grandfather were both deceased and his aunt and siblings had little or no contact with him and he had no visitors while in jail. He wanted segregation because he was having trouble with Corrections officers and other inmates and felt it was safer in segregation. This was where he considered transfer to Edmonton for a fresh start. She agreed that his behaviour at that time did not generate a bad reputation for Toutsaint in regard to Corrections staff. Shelley Hlewka [ 57 ] Ms.

Hlewka was Toutsaint’s probation officer in charge of his supervision after his first federal sentence. He was not a success story on probation and had a difficult time in maintaining a Prince Albert residence. He was not interested in any programming and was not out of custody long enough to engage in any. He declined to talk about risk factors or alcohol issues but was interested in gang culture and was not engaged to do anything to better himself. He thought the criminal justice system was out “to get him”. Francois Leblanc [ 58 ] Mr. Leblanc is Mr. Toutsaint’s parole officer.

It has not been a happy relationship. On their very first encounter, Mr. Toutsaint advised Mr. Leblanc that he didn’t want to talk to him and this was followed up with “you are fucking dead.” No charges were filed as it was their first meeting and Mr. Leblanc wanted a chance to develop a rapport with Mr. Toutsaint. A referral was made to the alcohol abuse program which he said he wanted to do. He went for three sessions and was then found with home brew in his cell which was of concern considering he was in the Substance Abuse Program. Essentially Mr. Toutsaint had no interest in any dialogue with Mr.

Leblanc, has no interest in any programming which would reduce his risk factors and prefers segregation to any other proposal. [ 59 ] Mr. Toutsaint is not shy about resisting authority. At one of his Parole Board hearings the following occurred: . . . while the Parole Board introduced themselves, they start about –they start talking about the procedure, and how things were going to

. . . while the Parole Board introduced themselves, they start about –they start talking about the procedure, and how things were going to be conducted. As soon as they started asking questions to Mr. Toutsaint, Mr. Toutsaint said something consistent with, “fuck that shit, fuck you guys, I’m done with that”. He stood up, he left the room and went in his cell. [ 60 ] It is apparent from Leblanc’s testimony that Mr.

Toutsaint is essentially unmotivated, spends most of his time sleeping or watching tv in his cell, and is completely uninterested in programming that would reduce his risk categories so that he could partake in any programming that would lead to an early release. Much of their interaction has been relegated to requests from Mr. Toutsaint for transfers to other parts of the institution or to other institutions outside the province in an effort to find a different environment for Mr. Toutsaint. Leanne Skene [ 61 ] Ms.

Skene is the Director of the Healing Lodge at Maple Creek, and she provided information on the programming available. There are two kinds of programming available - high intensity and low intensity and these vary on how long the sentence imposed is. Core programming has to be completed first before an inmate can apply for the more specialized programming and all programming is voluntary. There is nothing offered at Black Lake which is Mr. Toutsaint’s community of origin, and he would only be able to access maintenance programming in the community. Dr. Richard Holden [ 62 ] Dr.

Holden is a well-known consultant and clinical psychologist who practices out of Red Deer, Alberta, and by his own estimate he has completed sixty

Part XXIV assessments for the Governments of Manitoba and Saskatchewan. He was asked to interview the accused and did so. In addition to the interviews, Dr. Holden read the material provided by the Crown which contained material from the Correction Service of Canada. The initial interview was conducted on October 19, 2010 at the request of Judge Peter Kolenick, and a subsequent interview was conducted on October 17, 2013 at the request of myself. [ 63 ] Initially Mr. Toutsaint refused to see Dr.

Holden and was very reluctant to engage in a conversation with him but ultimately agreed to do so, and eventually relaxed enough for the interview to take place. At the time of the interview he concluded that Mr. Toutsaint was a discouraged, somewhat depressed young man with limited interpersonal skills. In regard to intelligence, he felt he was operating in the average range of mental development. [ 64 ] Dr. Holden conducted his usual risk assessment based on his standard protocol. He concluded the following based on that test in regard to historical variables: 1.

The accused has a history of previous violence and he is a high risk to re-offend in the future, based on his criminal record. 2. He has a high probability of committing future violence based on his age. 3. He has a high risk to commit violent acts in the future based on his history of relationship instability. 4. He has a high risk to re-offend violently in the future because he has never had any gainful employment or employment history. 5. He has a chronic and as yet, untreated alcohol abuse problem and this raises his potential for violent crime in the future. 6.

He is not suffering from any major mental illness so this factor has no bearing upon his potential for future violence. 7. His PCL-R score was 24 (anything above 30 is indicative of serious psychopathy) although he did have a high score in regard to Facet 3 which in Dr. Holden’s estimation means the following: Persons in this range tend to have an impulsive nomadic or parasitic lifestyle and to live for the moment.

They are likely to [be] relatively unconcerned about what has happened or might happen, may get bored easily, are unlikely to remain long in relationships, places or jobs, and continually are searching for new experiences and sensations. 8. Toutsaint was a victim of early maladjustment and on that basis is a high risk to re-offend violently in the future. 9. He does have a personality disorder (probably FASD) which renders him a high risk to re-offend violently. 10. All previous attempts to impose conditions on Toutsaint have resulted in failure and therefore this increases his risk.

[ 65 ] In regard to clinical variables, he concluded that his lack of insight into his offending behaviours, his tendency to project responsibility onto others for his violent behaviour, and his negative attitudes make him a high risk to re-offend. He detected no signs of major mental illness. However Toutsaint does have significant impulsivity in his past and has been entirely unresponsive to treatment, both of which raise his potential for violence in the future. [ 66 ] In regard to risk management variables, Dr. Holden concluded that Mr.

Toutsaint’s release plan is not feasible, his exposure to community stabilizers was high, his non-compliance with remediation attempts in the past and his multiple areas of stress (anti-social attitude, lack of work experience, limited education) would all contribute to a high potential for future violence. Dr. Holden was unable to calculate what family support Mr. Toutsaint would have upon release and therefore did not consider this factor. [ 67 ] These are all factors which led Dr. Holden to conclude that unless treated successfully, Mr.

Toutsaint will continue to re- offend violently: This is a complex and unusual case, in my opinion. Most of Mr. Toutsaint’s offences appear to be a very significant, pathological over reaction to attempts to have him conform to institutional rules. These responses have included highly oppositional behavior, threats, attention seeking behavior and assaults. [ 68 ] At page 43 of Dr. Holden’s report dated November 19, 2010, he did conclude that there were two mitigating factors; his age and his expressed intention to receive treatment at the Regional Psychiatric Facility. Dr. Holden felt that with advancing age, Mr.

Toutsaint may gain more insight into his behaviour and may be more willing to take programming designed to help him maintain himself out of the prison population. His ultimate conclusion: In reviewing the file, I cannot conclude that there is no possibility of the eventual control of his risk to re-offend in the community because he has not, up to this point, been involved in programming designed to ameliorate his behavior. Therefore, I believe he fits the criteria for a designation of Long Term Offender at this time. [ 69 ] At page 46 of Dr.

Holden’s report dated November 19, 2010 he was asked to update his report and did so with a report dated October 7, 2013. He found a significant difference in Mr. Toutsaint’s behaviour towards him and found Mr. Toutsaint to be an articulate individual who had no trouble explaining his situation in clear English. But once again, Dr. Holden felt it was his lack of programming and his unwillingness to consider programming to be the chief obstacle in reducing his risk for society. This is the result of Mr. Toutsaint’s decision to seek and remain in near total segregation as a way to solve all of his problems. Dr.

Holden remains concerned about Toutsaint’s decision to have nothing to do with his family upon release as this suggests he has no community support whatsoever. In Dr. Holden’s opinion, Mr. Toutsaint would have to be released into a highly structured and supportive community program and commit himself to sobriety and a crime free lifestyle. [ 70 ] Significantly his conclusion reached in 2010 is the same and he concludes his updated report as follows: In

summary, my last interview with Mr. Toutsaint did not support my speculation that he behaves the way he does because he has “given up”. In my opinion, he manifests many of the traits associated with a career criminal who wishes to do what he wants to do regardless of the circumstances. In my opinion, he continues to be a high risk/high needs inmate who, at present , is probably likely to be highly resistant to treatment attempts. His potential to commit further criminal acts, including acts of instrumental and reactive violence, remains high.

However, for reasons explained in my original report, I continue to believe Mr. Toutsaint should be considered a Long Term Offender. Page 6 of Dr. Holden’s Report dated October 7, 2013. [ 71 ] The Defence called Dr. Mansfield Mela as their expert witness. He was qualified as an expert in the area of forensic risk assessment, and is now employed at the University of Saskatchewan as a faculty member and as associate professor in the College of Medicine. He has been associated with the Regional Psychiatric Centre for the past 13 years. Dr. Mela interviewed Mr. Toutsaint on October 28, 2013.

After a very comprehensive report, he came to a conclusion similar to that of Dr. Holden. [ 72 ] In Dr. Mela’s opinion there is a high risk of violent re-offending without treatment. It is Dr. Mela’s opinion that if Mr.

[ 72 ] In Dr. Mela’s opinion there is a high risk of violent re-offending without treatment. It is Dr. Mela’s opinion that if Mr. Toutsaint participated in a course of treatment and programming, his risk could be controlled. He specifically recommended high intensity Anger Management and Violence Prevention Programming, continued access to anti-depressants which seem to be helping, trauma therapy, drug therapy to help with reducing impulsivity and substance abuse treatment. He too was highly in favour of positive community support with an intensely structured and gradual release plan. [ 73 ] Dr.

Mela did not offer a concluding opinion as to whether Toutsaint was a Dangerous Offender or Long-Term Offender but it is safe to say he was cautiously optimistic if Mr. Toutsaint would embrace programming both before and after release. Joey Toutsaint [ 74 ] Joey testified on his own behalf and it is indeed a sad history. He was essentially raised by his grandfather in Black Lake which is a very isolated community in northern Saskatchewan with few resources. His grandfather died when he was 15 and he went to live in Prince Albert with his mother.

He had been with her for only a month when she was run over and died in a pedestrian/vehicle accident. The car had been driven by a lawyer. He went through the chronology of his criminal history with several qualifiers. His spoken English was good and he was reasonably eloquent in his presentation given his education and background. Mr. Toutsaint has essentially spent the greater part of his life incarcerated so most of his interaction has been with other prisoners, correction services guards and lawyers. It has not been a happy association.

He does agree that he has been involved with “gangs” but left that association because he was tired of it and tired of being told what to do by the gang. Much of his evidence focused on why he has chosen to spend much of his time in almost complete seclusion. He finds it quieter in segregation, no one bothers him there and there is almost no interaction with either prison staff or other inmates or as he stated: Q So everybody wants to know why you’ve been in segregation since 2009. Why do you go there? A I don’t know.

Like, it’s -- in the hole I -- I just don’t interact with other people, and it doesn’t -- I don’t get into a fight, and I just don’t -- don’t like putting up with guards’ fucking shit anymore. Q Now, I just want to talk to you, Joey, when -- when you and I talk, you use a lot of swear words, eh? A Yeah. Q Is that your normal way of talking? A Yeah. Q Okay. What about other inmates, do they swear a lot as well? A Lot of people swear in jail. Q Okay. Like, when you and I are talking. Okay.

Like, when you and I are talking, and you’re -- you’re swearing, swearing, swearing all the time, does that mean that you’re angry with me? A No, it’s just -- it’s the easiest way to explain something from me. Q Okay. So now, as you’ve been testifying, you’ve been -- you haven’t been swearing very much; right? A No. Q Okay. And why is that? A I don’t know. Q But you’ve made a conscious effort not to swear; right? A Yeah.

Transcript Volume III, December 11, 12, 2013, Page 398. [ 75 ] He spends most of his time in his cell watching tv, listening to his music and reading, having taught himself to read in English with the use of comic books. Q Okay. Can you just talk about that? How did you teach yourself to read?

A I started reading like Archie comics and Marvel comics, like little easy words, and before that I was taught little -- little -- like, small words in North Battleford, so I knew little words, and then I kept practicing and practicing, and I got good. Q Where were you doing it, all the reading? A I started in juvenile, but I didn’t get -- I didn’t get far until I got to Correctional, when I was in the hole, and I had nothing to do, so I found a book, and I kept practicing, and I got good at it. Q Okay.

Up until that point, until you were teaching yourself how to read, how did you -- like, did you get other people to read things to you, or how did you get along? A Sometimes the inmates tell me what -- if I can’t figure it out, I’ll spell the words to them and they’ll tell me what it is. And it’s a lot of times I have to figure out what it means by myself until I -- until I found a dictionary and I kept practice in dictionary, and then I started reading a lot of books. Q Okay. So do you read a lot now? A Yeah.

Transcript Volume III, December11, 12, 2013, Page 405. [ 76 ] He indicated in examination-in-chief that he is prepared to take the alcohol programming if it helps him and finds that the anti-depressant he is on is helpful as it prevents him from “flipping out.” [ 77 ] In regard to programming that the institution wants him to take, he feels they are just setting him up to fail which they can use as more evidence in a DO hearing.

He has little use for the Elders program in Edmonton as he is Dene and the Elders are Cree. [ 78 ] In cross-examination when challenged on his previous offence history, he became quite intolerant with the questions posed by the Crown. Joey does not like being cross-examined on his behaviour or questioned by any person in authority which was quite evident during his cross. He indicated that some times in jail, you have to act out to gain ‘respect’ from other inmates or the guards.

If you do not, you are treated poorly by both groups. [ 79 ] Towards the end of his cross-examination, Joey was forced by the Crown, appropriately and very sensitively in my opinion, to examine his behaviour more closely: Q Joey, I want to ask you -- and this is as straight out as I can ask you; right? This isn’t me telling you anything, I’m just asking you, what do you think are things that you need to improve? I’m trying to ask it as softly as possible, so you -- do you think there’s anything that you need to work on?

A I’ll work on -- it’s hard when -- it’s hard for me, like, because what I got charged with, wherever I go I got a problem with other people because of my charge, too. Q Okay, but do you -- A It’s not just, like, people don’t like me, you know, and I just don’t like nobody because of it. If I go somewhere where I don’t know anybody then I’ll start -- I’ll start new again. Q Joey, I’m not a psychologist, but I’m going to ask you a question which might sound odd, and you might think it’s ridiculous, but do you like yourself? A No.

Q And you understand that all of us in society, these doctors, these guards, these Prosecutors, I won’t speak for anyone more than that, maybe, but we all have some things that we need to improve about ourselves; right?

A Yea, but I’ve got a fucking ugly life, man. Like, the way I got charged, the way I ended up in jail, and white people don’t like me. I don’t like nobody, you know. Transcript Volume III, December 11, 12, 2013, Page 485-86. [ 80 ] Overall I have concluded that Mr. Toutsaint has led an almost unbearably sad life in most aspects. He has not received a single visitor while in the federal system nor any phone calls. It is a life of almost complete solitude totally devoid of any social interaction for the past several years.

VI ISSUES [ 81 ] The parties are essentially agreed that there are four issues for consideration before this Court: 1. Is a conviction under s. 344 of the Criminal Code of Canada to be deemed a “serious personal injury offence?” 2. Does the defendant meet the definition of Dangerous Offender pursuant to s. 753(1) (a)(

i) or (ii) of the Criminal Code of Canada? 3. If the defendant is designated as a Dangerous Offender, should he received a determinate or indeterminate sentence? 4. If the defendant is not designated a Dangerous Offender, should he be designated a Long Term Offender under s. 753.1of the Criminal Code of Canada ? VII ANALYSIS [ 82 ] The parties are agreed and the Court concurs that the offence of robbery pursuant to s. 344 for which Mr.

Toutsaint has been convicted is a “serious personal injury offence.” [ 83 ] The substantive and indeed threshold issue for me to consider is whether or not the Crown has satisfied me beyond a reasonable doubt on the evidence before me that Mr.

Toutsaint has shown either: A pattern of repetitive behaviour of which the robbery forms a part, showing a failure to restrain his 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 behaviour OR A pattern of persistent aggressive behaviour by the offender of which the robbery for which he 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 behaviour. [ 84 ] The Crown submits that the pattern of repetitive behaviour referenced in s. 753(1) (a)(

i) has been established in this case and points to Mr. Toutsaint’s 34 previous convictions at the age of 27, of offences involving weapons, violence or threats of violence including the predicate offence. The majority of these offences have been committed while Toutsaint was in custody upon members of the police force or corrections service and nearly all involve some element of either using a knife, or shank, or threatening to use same. Such activity has occurred at every correctional institution at which he has been detained.

While it is true that the vast majority of the offences only involved the threat or mention of a weapon, the most recent and predicate offence involved the use of a weapon to threaten an unsuspecting member of the public, not trained in the use of tactics to disarm or defuse a potentially lethal situation. In almost every case, the threat or violence used was used spontaneously and impulsively as the result of a perceived slight on behalf of Mr. Toutsaint. [ 85 ] The Crown further submits that the same facts support a finding of persistent aggressive behaviour.

They further point out that the predicate offence seems to indicate an escalation in behaviour as it was done to total strangers in a dispute over alcohol in a city that the accused was not supposed to be in: he had breached the conditions of his release by leaving Prince Albert and drinking within five

weeks of his release on a s. 810.2. [86] The Defence quite properly relies on R v Knife, 2013 SKQB 197 [Knife] and R v Papequash, 2013 SKQB 369 [Papequash]and argues that the Crown has shown that Mr. Toutsaint is clearly a recidivist but that there is no pattern of repetitive behaviour - i.e. hisrobbery conviction stands starkly alone. I note however that both Knife and Papequash are under appeal. [87] The broad pattern of Mr. Toutsaint’s aggressive behaviour is that he lashes out physically when he feels slighted,challenged, insulted, controlled or manipulated.

As noted in various psychological assessments of Mr. Toutsaint, he has multiple ultra-sensitive triggers to his anger, and he has demonstrated a clear and persistent pattern of being unable or unwilling to restrain his violentimpulses once such a trigger is activated. The question is whether or not the cumulative effect of his behaviour reaches the statutorythreshold under 753(1)(a)(

i) or (ii). The predicate offence in this case, the alcohol fuelled knife-point robbery of strangers by theriverbank, is atypical of Mr. Toutsaint’s previous convictions, and can be interpreted as either an aberration from or an escalation of hisprevious behaviour. However, even if the robbery was a random act, it shows the extent of Mr. Toutsaint’s impulsivity and his readywillingness to resort to violence to achieve his ends (i.e. the spontaneity of a violent act may speak to a pattern of failed restraint.

R vSzostak, 2014 ONCA 15, 306 CCC (3d) 68, para 60 [Szostak]). [88] For the purposes of the statute, a pattern can include either two very similar incidents or several non-similar incidents. Morethan one bases may be used to establish a pattern, although the fewer the number of incidents, the more similar they must be (R v Neve,1999 ABCA 206, 237 AR 201, at para 113, Szostak, at para 57).

In R v Casemore, 2009 SKQB 306, 336 Sask R 110 (aff’d 2011 SKCA14, 366 Sask R 149), the Court held that a pattern of general similarity is sufficient, and need not rise to the level of similar fact evidence.In addition, there need not be a lengthy history of violence or aggression for a pattern to be found, so long as there are sufficient elementsof similarity in the offender’s behaviour (para. 9).

In R v CJD, 2012 SKQB 101 , 2012 SKQB101, 391 Sask R 240, the Courtaffirmed that the offences forming a pattern under subsection (ii) need not be of the same kind, but may be similar in the degree ofviolence or aggression threatened or inflicted on the victim (para. 113).

Regarding the scope of behaviour that may be taken intoaccount, the Court held that the following were relevant: Criminal acts and criminal record of the accused; Extrinsic evidence relevant to those past acts and the circumstances surrounding them; and Psychiatric reports regarding that conduct (para. 123). [89] In R v Whitefish, 2014 SKQB 99, 113 WCB (2d) 593, Allbright J. found that the offender met the criteria of a dangerousoffender but he sentenced the accused as a Long-Term Offender.

Justice Allbright held that a pattern of behaviour could be discernedfrom the accused’s persistent use of ‘instrumental violence’ (violence directed toward achieving a specific result) when the accused’sjudgment is “impaired by alcohol and/or anger” (para. 65).

A prominent feature of the pattern was that the accused often felt provokeddue to a perception that “he has been wronged in some way.” [90] In Szostak, the Ontario Court of Appeal affirmed the principle that a “pattern of repetitive behaviour” for the purposes of753(1)(a)(i), including the predicate offence, must contain “enough of the same elements of unrestrained dangerous conduct to be able topredict that the offender will likely offend in the same way in the future…However, the offences need not be the same in every detail”(para. 56).

In addition, the Court asserted that the spontaneity of violent actions of the accused were an indicator of lack of restraint andwere prescient of a likelihood of causing death or injury to other persons in the future due to a similar lack of restraint (para. 60).

TheCourt further found that the trial judge’s consideration of the fact that none of the injuries inflicted by the accused were life-threateningnor were intended to be, fails to reflect the seriousness of the offences: emphasizing this placed a burden on the Crown that is justifiedneither by the wording nor the intent of the statute (para. 63). [91] In the present case, it may be said that the accused has a pattern of using violence and

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