Her Majesty the Queen - v. -, 2011 SKPC 109

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 109 Date: June 23, 2011 Information: 30082480 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - JM Appearing: Kim Humphries For the Crown Bill Roe, Q.C. For the Accused DECISION ON DANGEROUS OFFENDER APPLICATION D. E. LABACH , J INTRODUCTION [ 1 ] On October 19, 2009 I convicted JM of committing a sexual assault contrary to

section 271 of the Criminal Code . Following the conviction, the Crown requested an adjournment of sentencing so that they could consider whether they wished to bring an application to have JM declared a dangerous offender. I granted the adjournment with the consent of the Defence.

[ 2 ] On November 24, 2009, the Crown filed written notice of their intention to seek a dangerous offender or long term offender designation as against JM. This notice included the grounds upon which they relied. In reviewing the grounds and hearing from the Crown, I was satisfied that the sexual assault that I convicted JM of was both a serious personal injury offence and an offence referred to in

section 753.1(2) (

a) of the Criminal Code and that there were reasonable grounds to believe that JM might be found to be either a dangerous offender or a long term offender. As such I ordered JM remanded to be assessed by Dr. Terry Nicholaichuk and his report filed with the Court. [ 3 ] Following the completion and filing of Dr. Nicholaichuk’s psychological assessment, the Crown advised they wished to pursue the hearing. The dangerous offender hearing was set to begin on October 12, 2010. On September 23, 2010, the Deputy Attorney General for Saskatchewan consented to the Crown pursuing the application.

This written consent was filed at the outset of the hearing. In addition, with the consent of the Defence, the Crown also filed the criminal record of JM, Dr.Nicholaichuk’s curriculum vitae and five binders containing the existing records of JM’s convictions, his Correctional Service of Canada records and his Provincial Correctional Centre records. [ 4 ] In the course of the hearing, the Crown called twelve witnesses and the Defence called two.

At the conclusion of the hearing, Crown argued that the evidence was more than sufficient to prove that JM met the criteria to be declared a dangerous offender and further, that I should sentence him to a period of indeterminate incarceration. [ 5 ] The Defence on the other hand took the position that the Crown had not established that JM met the definition of a dangerous offender set forth in

section 753 of the Criminal Code and that I should sentence him to a determinate sentence. Alternatively, he argued that if I was satisfied JM met the dangerous offender criteria, I should sentence him not to indeterminate jail but rather to a term of imprisonment, with or without community supervision. In his view, there was sufficient evidence before the Court for me to conclude that there was a reasonable expectation that a lesser sentence would adequately protect the public from JM. [ 6 ] In order to properly assess the Crown’s application, I am required to consider all of the evidence in light of the scheme set forth in

Part XXIV of the Criminal Code . In R. v. Natomagan, [2010] S.J. No. 45 (Sask. Prov. Ct.) , the Crown sought to have Mr. Natomagan declared a dangerous offender. In reviewing his responsibilities on such an application, Harradence J. stated: [7] As with any other sentencing, the principles of sentencing found in sections 718, 718.1 and 718.2 are applicable. Fundamental to any sentencing is the recognition that it is an individualized process centred upon the individual circumstances of the offence and the individual circumstances of the offender. Thus, as I evaluate the evidence in light of the provisions in

Part XXIV, I remind myself that a dangerous offender hearing is still a sentencing hearing.

PART XXIV OF THE CRIMINAL CODE [ 7 ]

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 (

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.

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 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. 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 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. Section 753(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. 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 the application and the court may either find that the offender is a long-term offender or hold another hearing for that purpose; or (

b) the court may impose sentence for the offence for which the offender has been convicted.

PREDICATE OFFENCE [ 8 ] The predicate offence in this case is a sexual assault perpetrated on Vanessa Desjarlais on April 27, 2009. After trial I convicted JM, finding that on that date he and Ms. Desjarlais had spent most of the day together drinking. By 6:30 p.m. both of them were intoxicated to varying degrees and found themselves behind the Midtown Plaza in Saskatoon. Without warning, JM knocked Ms. Desjarlais down and started to take her pants down. He took down his pants so that his penis was exposed at which time he got on top of her and tried to penetrate her. She was not interested and called for help.

He persisted and did not stop until he was grabbed by other people and pulled off Ms. Desjarlais. [ 9 ] The offence was an unprovoked assault on an adult female for a sexual purpose outside a mall in the early evening. There was nothing planned about this assault, there was no penetration and both parties were quite intoxicated. The Crown proceeded by indictment and as such, the maximum penalty for which JM may be sentenced is 10 years. [ 10 ] The predicate offence in this case meets both

definitions of serious personal injury offence as that term is defined in

section 752 (

a) and (

b) of the Criminal Code . EVIDENCE

a) JM’s Personal Circumstances: [ 11 ] JM testified in these proceedings but spoke very little of his personal circumstances except to say that alcohol had ruined his life. He spent most of his testimony trying to explain why he should be sentenced to a determinate sentence and what he would do if released. He recognized that he needed help to deal with his serious alcohol addiction but his suggestions as to how he may do that were not very well thought out.

He struck me as rather simple, repeated himself a number of times and while I believe he genuinely wanted to get treatment for his alcohol addiction, I was not satisfied that he understood the extent of the counselling and treatment he required. He was polite and sat quietly through the proceedings. [ 12 ] From the extensive documentation filed in this application, I have gleaned that JM was born on June [...], 1960 to T and V M. He grew up in the small northern community of Green Lake, Saskatchewan. There were eleven children in the family and JM was the oldest of the boys. At present he is 51 years of age.

His mother is now deceased and his father resides in a nursing home in Meadow Lake. At least one of his brothers has passed away as well. [ 13 ] The rest of JM’s personal history is perhaps best set forth by Dr. Nicholaichuk in his Psychological Assessment dated February 16, 2010. Beginning at page 2 of the report he states: The NFS

summary, quoting a report prepared at the Regional Psychiatric Centre, stated that JM reported having had a good childhood, although both his parents were heavy drinkers. The report states he did not experience neglect and he denied being the victim of physical abuse as a child. According to this report, JM completed Grade 10 and part of Grade 12. It also stated that he was busy hunting and

trapping with his father. His work history consisted of sporadic and short-lived labouring jobs and was limited largely because of his frequent returns to prison. He began to drink at about the age of 16 and his alcoholism and subsequent criminal history have continued essentially unabated since. A Community Assessment (1996/09/18) was prepared shortly after JM was incarcerated at Saskatchewan Penitentiary on 1996/08/08. The assessment was based upon interviews with JM’s parents. At the time they stated they were not interested in further involvement with their son.

They said they did not have a good relationship with him as he had physically and mentally abused all the members of the family. The parents stated that their son had been getting into trouble since the age of 16. He was described as having no respect for the law, particularly when he was drinking and using drugs. Apparently he was so abusive that his siblings often held baseball bats on their laps while watching television in case JM came to the home. At the end of the interview, the M’s had a restraining order against their son.

Although the parents denied abusing their son, they reported that he frequently assaulted them. They stated that when he drank he was particularly violent. Finally, Mr. and Mrs. M. said that their son’s behaviour had caused them a great deal of embarrassment and humiliation in the community in which they lived. JM has had numerous relationships with women almost all of which have been characterized by substance abuse on the part of both he and his partners. These relationships have ordinarily been punctuated by acts of domestic violence initiated by JM while he was drunk.

Although he has lived with some of his partners, none of these relationships were of significant duration, because JM was returned to prison with great frequency. Ordinarily, he seems to be somewhat socially isolated and has no significant relationships with anyone outside of his drinking partners. Therefore, he seems to have no history of intimate or supportive relationships with anyone.

b) JM’s Criminal History: [ 14 ] JM’s criminal record is attached as Appendix A to this decision. It is very lengthy, containing some 170 convictions. His first conviction occured on November 10, 1977 and his last, the predicate offence in this hearing, on April 27, 2009. This is a span of some thirty one and a half years.

His convictions can be broken down as follows: ∙ Convictions for offences involving violence - 24 ∙ Convictions for sexual offences - 4 ∙ Convictions for property related offences - 55 ∙ Convictions for drinking and driving related offences - 12 ∙ Convictions for failing to abide by court orders - 69 ∙ Convictions for drug related offences - 1 ∙ Convictions for obstruction - 1 ∙ Convictions for resisting arrest - 1 ∙ Convictions for uttering a forged document - 1 ∙ Convictions for causing a disturbance - 2 [ 15 ] While his entire record is of significance on an application for a dangerous offender designation, perhaps of most significance are his convictions for violence related offences and sexual offences.

His twenty-four convictions for offences involving violence include common assault (13), assaulting a peace officer (1), assault causing bodily harm (3), assault with a weapon (2), break, enter and commit assault causing bodily harm (1), possession of a weapon (3) and pointing a firearm (1).

Of these 24 convictions, 14 occurred in the 1980’s when JM would have been in his twenties, 5 occurred in the 1990’s and 5 occurred between 2000 and 2010. [ 16 ] JM’s sexual offences include two convictions for sexual assault, one conviction for committing an indecent act and one conviction for exposing himself to a person under the age of 14. Of these offences, one occurred in the 1980’s and 3 in the 2000’s.

[ 17 ] Based on the extensive documentation from Correctional Service Canada and the Provincial Correctional system as well as JM’s own disclosures, it is fair to conclude that virtually all of his offences involve some sort of substance abuse, usually alcohol, or are alcohol related. As is apparent, the bulk of his convictions are for property related offences or for failing to abide by court orders. A closer look at the documentation regarding these convictions shows that JM is stuck in a nasty cycle from which he has neither the means nor the wherewithal to extract himself.

Specifically, he has no means to support himself and is an alcoholic. He steals products containing alcohol to fuel his addiction, steals items to sell to get money to purchase alcohol or steals food to feed himself. When he is committing these thefts he is usually already intoxicated. On just as many occasions he is either on judicial interim release that includes an abstinence condition from alcohol or solvents or on a period of probation that includes such a clause. He gets caught, arrested, re- released or re-sentenced and the cycle continues.

Since 2000, 41 of his convictions are for thefts or mischiefs and 55 are for breaching conditions. [ 18 ] The circumstances of his violent offences and his sexual offences can be summarized as follows: (

i) Possession of a weapon - November 29, 1984 The documentation does not contain any reliable information describing the circumstances of this offence. (ii) Assault - January 27, 1986 JM, while intoxicated, jumped on top of a Sask Power scaffold and asked a Sask Power employee to fight. The victim, who was working, went inside a Sask Power office and JM followed. The victim asked him to leave. He was using foul language and tried to kick the victim but missed. He then hit the victim in the stomach a couple of times and a scuffle ensued.

Another Sask Power employee helped the victim throw JM out. (iii) Possession of a Weapon - March 24, 1986 JM was at a party in Meadow Lake. He was carrying a kitchen knife on his person which he flashed at another person at the party. The police were called and he was arrested. (iv) Assault Causing Bodily Harm - May 15, 1986 The documentation contains no information as to the circumstances of this offence. (

v) Assault x 4 - December 8, 1987 On December 6, 1987, JM went to his parents residence after a night of drinking. He was heavily intoxicated. JM’s father woke up when the accused requested money from him. He gave JM $20.00 in the hope it would calm him down. JM then grabbed his father by the throat and started choking him. He told his father that his father owed him more money than that and that he should show him no mercy. He ripped his father’s shirt, shook him up and left the house with the threat that he would be coming back and was going to burn the house down.

The family was scared by all of this and they decided to hide all the knives and guns in the house. JM returned and there was no incident. He then went out again and returned again. He stormed into the house and started giving his brother Joey, age 23, heck. JM then picked up his brother Jordan, age 7. He started to hit Jordan in the face and punched him in the back causing a bruise. He picked Jordan up and held him high in the air over his head and then threw him onto the living room floor. JM’s father and mother woke up and came out to see the accused kick Jordan in the back.

Jordan ran into the bedroom and the accused pursued him. JM lifted Jordan over his head and threw him into the closet. JM’s mother and father were telling him to leave Jordan alone. Eventually the accused desisted this assault and sat down for a few minutes. He then got up and started slapping and punching his brother Joey. He grabbed Joey and began choking him and slugging him in the face. He also threatened to kill Joey. JM’s mother then tried to leave. JM caught her and told her she was not going anywhere. He threw his mother to the floor, then picked her up and threw her on the floor again.

He kicked her in the stomach once causing internal bleeding. He stated that no one was leaving the house and then picked up his

mother again and threw her on the floor. JM yelled that if anyone put him in jail or phoned the police, he would end up killing them. He said that it did not matter whether it was today or in three years, he was going to get them anyway. Eventually the incident ended. (vi) Sexual Assault, Assault x 2, Assault with a weapon and Pointing a Firearm - May 9, 1989 On March 31, 1989, one week after being released after going to warrant expiry on the sentence for the four assaults on his family members, JM went back to his parents home in a state of intoxication and forced his way in.

His nephew was there with a babysitter. JM assaulted the babysitter by forcing a mop handle across her neck. He grabbed his nephew by the shirt collar and forced him up against the wall. JM grabbed an unloaded firearm and pointed it at one of the victims.

There is no information regarding the circumstances of the sexual assault except that it was perpetrated upon JM’s thirteen year old niece. (vii) Assault - July 8, 1992 There is no documentation setting forth the circumstances of this offence. (viii) Assault with a Weapon - March 17, 1994 On February 24, 1994 JM went to the Barry Hotel beverage room in Saskatoon. The victim was a bouncer working at the bar that day. The bouncer noticed JM enter the beverage room and told him he had to leave. JM turned around and swung his hand at him.

The bouncer covered his face with his arms and when he put his hands down he noticed that his hand was bleeding and appeared to have been slashed. The bouncer pushed JM through the door and went to get a towel. When he came back, JM was in the lobby of the hotel yelling. There was a scuffle and JM tried to run away. He was caught and brought back until police arrived. JM had been drinking. (ix) Assault - May 13, 1996 On May 13, 1996, JM assaulted his girlfriend, Jackie Laliberte, in Meadow Lake. The pair had an argument and then went to the arena. As they were walking into the arena, JM threw Ms.

Laliberte to the ground and began to kick her numerous times in the ribs. He punched her in the face. Both had been consuming alcohol prior to the incident. This assault occurred in the presence of a number of people including a staff sergeant with the local RCMP. (

x) Assault and Break, Enter and Commit the offence of Assault Causing Bodily Harm - August 8, 1996 Between July 1 and July 19, 1996, JM was living with Jackie Laliberte. Over this time period he became upset with her because she had lost some money. He punched her in the face and her nose started to bleed, but he continued to punch her. She finally ran away. On July 18, JM got mad at Ms. Laliberte because she would not have sex with him. He began choking her with his arm. He made another request for sex and she again refused. At this point he punched her.

On August 4, 1996, JM forced his way into a residence where the victim was visiting his son. Apparently JM had assisted the homeowner in moving some items into the house but had not been paid. JM demanded that the victim give him money for helping the homeowner move. The victim refused and asked JM to leave. JM punched the victim in the mouth cutting the victim’s lip. JM was intoxicated at the time. (xi) Assault x 2 - November 11, 2000 On August 24, 2000, police were called to a complaint of a man beating a woman on 25 th Street in Saskatoon. When the police arrived

they did not find anyone there but were aware of JM and his girlfriend, Diane Masuskapoe. They went to their residence and observed JM repeatedly punching Ms. Masuskapoe in the left temple. Police pulled him off her and arrested him. On September 4, 2000, JM was at Winston’s Pub at the Senator Hotel in Saskatoon. The bartender asked JM to leave as he had previously been banned from this establishment. JM began swearing, yelling and spitting at the bartender. He took a pool cue from another patron and started to swing it randomly at the bartender and others.

The bartender tried to disarm JM and was punched a couple of times. (xii) Indecent Act - August 28, 2001 JM was seen to be urinating on the sidewalk in the 400 block of 20 th Street West in Saskatoon. (xiii) Assault Causing Bodily Harm - March 5, 2002 On January 8, 2002, JM was drinking with a number of people including the victim, Theresa Masuskapoe. He threw a beer bottle at a male who was sitting on Ms. Masuskapoe’s lap. The bottle missed and hit Ms. Masuskapoe in the head.

She required 14 stitches. (xiv) Assault - June 19, 2002 On April 28, 2002, JM and his common-law spouse, Diane Masuskapoe, were at a friend’s house. Throughout the night, Ms. Masuskapoe kept coming into her friend’s bedroom to seek assistance to get away from JM. On one occasion he followed her into the bedroom and dragged her out by her clothing. He was also observed grabbing Ms. Masuskapoe’s hair and forcing her to go downstairs.

The police were called and observed JM to be in a highly intoxicated condition. (xv) Assault Causing Bodily Harm - May 14, 2007 On February 13, 2007, JM punched and kicked a female acquaintance in the head area causing an injury that required stitches. Both JM and the victim were intoxicated at the time of this assault. (xvi) Exposure to a person under 14 years of age - August 16, 2007 On May 23, 2007, JM exposed his penis to an eight year old girl in the parking lot behind Larson House, a detox centre in Saskatoon. He was walking towards her with his hands open.

A bystander noticed what was going on and asked JM what he was doing. The young girl ran away. JM was intoxicated at the time. [ 19 ] It is obvious that there is nothing sophisticated and no planning or forethought in the carrying out of these offences of violence. They all occur when JM is intoxicated. In the Correctional Service Canada documents he is described by his parents as a generous and kind person when he is not consuming alcohol. This statement is supported by his behaviour when he is in custody and alcohol is not readily available.

However, when he is drinking, his change in demeanour and personality is nothing short of momentous. It is obvious that alcohol is the root cause of all of JM’s criminogenic history.

c) Correctional Service Canada and Provincial Correctional Centre Records: [ 20 ] The records that have been provided to the Court from Correctional Service Canada and the Provincial Correctional Centre do not appear to be a complete record of JM’s time spent at the different institutions from November, 1977 to present. However, the records that are provided are detailed and consistent such that I am satisfied that they paint an accurate picture of JM over the time frame to which they refer.

[ 21 ] These institutional documents continually refer to JM’s problem as being a severe addiction to alcohol. All other issues seem to flow from his problem with the bottle. And while his other problems come and go, the alcohol issue, not surprisingly, remains constant and unresolved. At a very early stage in his criminal history, the records reflect that JM recognized his alcohol problem.

In January, 1985, JM was transferred from the Prince Albert Correctional Centre to the Regional Psychiatric Centre because “he was thought to be exhibiting manifestations of psychotic mental disorder.” Apparently he was hearing auditory hallucinations and was expressing religious delusions. [ 22 ] After three days Dr. Brooks, an RPC staff psychiatrist concluded that these issues had resolved.

In his report dated January 31, 1985, he states: It is quite likely this young man was suffering from some kind of psychotic disorder at the time of his admission though it is not clear exactly what the nature of this disorder was. I suspect it was manic rather than schizophrenic. There are few signs left of it now and indeed JM talks about his previous beliefs with a deal of amusement. . . . I see no great point in keeping JM at RPC in the long term. He wishes to be returned to the Provincial Correctional Centre.

It might be wise to encourage him to remain here for a further week or two on Assiniboine Unit so that we can be sure his psychosis has settled down. [ 23 ] In discussing his alcohol issues with JM, Dr. Brooks notes that “he feels that drink is a problem and says that going to AA, the church and the Seven Steps Program have helped a good deal.” [ 24 ] JM’s acknowledgement of a problem with alcohol is echoed in many of the institutional documents: (

i) CSC Progress

Summary - February 7, 1985 This patient appears to have little insight into the nature of his problems or to the reason for his admission to this institution. Though he identifies alcoholism as the source of all his problems, he fails to go beyond that in identifying areas he needs help with. (ii) Parole Application - March 30, 1986 . . . I feel most of my problems came from my drinking and living in Green Lake with not much to take up my time. . . (iii) Admission Report - March 30, 1986 Admits to having an alcohol problem. Claims that he goes crazy whenever he drinks and gets into trouble. (iv) Provincial Case

Summary - February 11, 1988 He states that he is concerned about his alcohol problem and is wishing to participate in an inpatient alcohol treatment program in order to deal with it. He is anxious to enroll in the Slim Thorpe Program should he be granted a full parole. (

v) Provincial Case

Summary - May 26, 1988 The subject admits to a severe alcohol/drug problem and has indicated to this writer his willingness to participate in an inpatient

treatment program. (vi) Penitentiary Placement Report - May 29, 1989 The subject appears to be physically fit and indicates that he is in good health with no mental or medical ailments.

He however indicates that he does possess an entrenched alcohol addiction problem which dates back to his early years of childhood and indicated that his interest to participate in self help programming in the institution. (vii) CSC - Force Field Analysis of Needs - June 7, 1989 Realizes he must do something about his alcohol abuse problem. (viii) Saskatoon Correctional Centre Log Detail Report - March 2, 2003 JM states that he needs to deal with a serious alcohol problem that he wishes to start dealing with. [ 25 ] The documents also track what programming JM has taken while in custody and how he has done since January, 1985.

Unfortunately no documentation was provided to the Court indicating whether he took any programming prior to 1985. However, when I look at his criminal record pre-1985, he received mainly non-custodial sentences or only short periods of incarceration that would not be conducive to any type of programming. [ 26 ] In a Provincial Case

Summary dated April 16, 1986, it is noted that JM: . . . has become involved in the Mandatory Addiction Program and the Recovery Program and he indicates that he attends AA weekly as well as church services on Sunday. Subject indicates he is currently involved in a school program in order to complete his Grade 12 at the PAPCC. . . . . This 25 year old individual has an extensive criminal history and appears to have a lifestyle which is rooted in alcohol and drug abuse as well as criminal involvement.

Subject has outstanding charges of a violent nature and it appears that he has spent the majority of the last nine years in and out of correctional facilities. Subject appears to be making an effort in the institution to deal with his alcohol problem and to upgrade his education. . . . [ 27 ] In a Provincial Case

Summary dated February 11, 1988, it says that JM: The subject is doing well during this incarceration. Staff indicate that he is not considered to be a behaviour problem. He completed the recovery program from January 11 to 29, 1988 and the evaluation states that he is verbal however appears more settled this term. He indicates that he has been in contact with (blacked out) who is helping him with release plans. He also states that he is planning on commencing the Seven Step Program and that he attends Alcoholics Anonymous on a weekly basis. . . . .

He is voicing a commitment to alcohol abstinence and a willingness to participate in in-patient treatment however, he is still not assuming responsibility for the behaviour which continually brings him into conflict with the law. . . . [ 28 ] On September 9, 1988, the National Parole Board denied JM full parole. In their decision they said: JM has an extremely serious alcohol, drug and sniffing problem and as late as June 16, 1988, he was charged with being in a state of impairment. This was not his first institutional charge and conviction. He was also overheard making a drug deal in February, 1988.

JM did complete the recovery program but the co-ordinator felt he was just playing a game. He began the school program but the teacher did not want him back because his performance was borderline. In May of this year he had five institutional charges, all of which indicates he is not ready for early release. His plans for parole are very vague and disjointed. Before consideration can be given to release a comprehensive and lucid plan for parole should be made. The Board would have to see a consistent improvement in his institutional behaviour as well.

Future release plans should include a residential substance abuse treatment program. Of concern to the Board is the fact that he continues to minimize the seriousness of his latest offence and is therefore a big risk to re-offend. His record of violence seems to be escalating and is also a matter of concern to the Board. [ 29 ] In May, 1989, JM was sentenced to his first period of federal incarceration. In his Correctional Treatment Plan dated June 8, 1989, four problem areas were identified: (

i) Abuse of alcohol; (ii) Lack of living skills; (iii) Inappropriate sexual behaviour; (iv) Lack of responsibility and poor judgment. A treatment plan was developed to deal with all four of these problem areas.

The plan involved JM attending a Life Skills Program, addressing the issue of intoxicant abuse, displaying to the institution through his employment, attitudes and compliance to rules and regulations that he is capable of being responsible and co-operating with the staff in the penitentiary’s psychological department and at the Regional Psychiatric Centre. [ 30 ] The records reflect that despite his well-documented problem with alcohol abuse, by January 1990 JM’s alcohol treatment consisted of him being involved in the AA program.

It is noted that over this time period he did not complete a Life Skills Program and was requesting to attend another and was on a wait list to attend the Regional Psychiatric Centre. [ 31 ] In April, 1990, JM was finally transferred to the Regional Psychiatric Centre for assessment. He was found to be having problems in the areas of drug abuse, lack of social and communication skills, lack of education and work skills, lack of insight into his problems, lack of self esteem and self respect, lack of resource system and pre-release planning.

He was transferred to another unit for treatment but after two days he was acting in a bizarre fashion and shortly thereafter he was discharged and sent back to Saskatchewan Penitentiary. [ 32 ] In a Correctional Plan dated February 8, 1991, it appears that he has still not been given any intensive alcohol treatment. The plan suggests that his alcohol problem “can be addressed immediately through attendance and participation in the AA Step Program”. [ 33 ] In a Progress

Summary dated May 14, 1991 it states: JM is attending AA meetings once a week to deal with his alcohol and drug problems. He also attends Anger Management to deal with his emotional stability. He has yet to deal with his inappropriate sexual behaviour and to upgrade his academic/vocational skills. [ 34 ] In another Progress

Summary dated August 15, 1991, the writer states that “while JM gives the impression that he is learning much from institutional programs such as Native Awareness (?) Awareness (with Father Vallee), AA and Anger Management, he certainly does not appear to have gained insight or motivation to change himself or his behaviour.” Later in the report, he states “at this juncture, his motivation to participate in programs and/or treatment remains to avoid detention as opposed to having a genuine desire to turn his life around.”

[ 35 ] JM was re-assessed for treatment at the Regional Psychiatric Centre and accepted. He was transferred back to the Regional Psychiatric Centre in September, 1991. His Discharge

Summary dated February 25, 1992 indicates that he saw a psychologist and underwent one-on-one treatment to control his inappropriate sexual urges. He completed that treatment program. He was also referred to the Substance Abuse Recovery Program which began in January, 1992 and he completed that program. Specifically what this program entailed or how long a program it was is not clear from the records.

He was discharged into the community from the Regional Psychiatric Centre upon expiration of his warrant on February 7th. [ 36 ] JM’s second period of federal incarceration occurred on August 8, 1996 when he was sentenced to a three year prison term for an assault and a concurrent three year term for break, enter and commit assault causing bodily harm. In his Intake Assessment dated October 23, 1996, the writer felt that JM lacked insight into his offence cycle. He minimized his actions and blamed others for his violent behaviour. He continued to demonstrate a lack of motivation and is manipulative.

He acknowledged a drinking and an anger problem but continued to abuse substances and violate the rights of others. His violent behaviour manifested itself when he was intoxicated. He admitted he has an anger management problem and needed to learn to control his temper. His cognitive abilities seemed to be impaired perhaps by his substance abuse and he did not appear to have problem solving skills.

On the basis of this information, the writer of this report concluded that JM was a high risk to public safety and would need to address his substance abuse and his violent behaviour to reduce his risk to public safety and to re-offending. [ 37 ] In a Community Assessment done in September, 1996, just prior to the aforementioned Intake Assessment, JM’s parents, T and V M, stated that JM was raised to respect others. When he was sober, he was kind and generous. But alcohol and drugs are like a poison for him. When he is drinking and doing drugs his behaviour totally changes and he is completely out of control.

His unpredictable behaviour is a danger to his family and his community. They are ashamed and embarrassed by his behaviour. [ 38 ] His correctional plan for this federal incarceration classified JM as a medium security risk and identified his problem areas in order of priority as: 1. Substance abuse; 2. Personal/emotional orientation; and 3. Employment. To address these problems, the plan stated that he has been scheduled to participate in the Offender Substance Abuse Pre-release Program (OSAPP), the Cognitive Skills Program, the Domestic Violence or Anger Management Program and the Employability Skills Program.

It also stated that they are encouraging him to take the Sex Offender Program because he has a previous conviction for a sexual offence but he has not been scheduled for same. [ 39 ] JM completed the OSAP Program between December 2, 1997 and January 17, 1998. The program Performance Report stated: Throughout the program JM was an active, cooperative participant who had understanding of the information presented. JM admits alcohol and other drugs have caused major problems in his life.

Following his completion of OSAPP, it was recommended that JM continue attending AA and any meetings. [ 40 ] JM also completed the Cognitive Skills Program between June 26 and August 17, 1997 and the Employability Skills Program between March 10 and 28, 1997. According to the Performance Reports for both of these programs, JM was an active participant, had excellent attendance, completed all assignments, did well on tests, was polite and courteous, and generally put forth a good effort.

[ 41 ] In his Progress

Summary dated September 3, 1997, JM appeared to be doing quite well at the penitentiary. In addition to the aforementioned programs, the

Summary indicated that JM completed the Grievance Support Program, is participating in aboriginal programming including sweats and daily pipe ceremonies, is involved in the institutional chapel, achieved his Grade 12 GED through the institutional school and was released on some escorted temporary absences with no problems. In relation to ongoing substance abuse treatment, the

Summary states: JM has been attending AA since he arrived at Sask Pen. The subject currently participates in an average of 1.5 meetings per week. Addiction counsellor G. Bragstad has stated that he believes JM to be quite serious about addressing his problem and seeking recovery through participation in the Alcoholics Anonymous program. Currently, JM is the chairperson of his AA group. In addition the subject is on step 9 of the 12 step program. [ 42 ] The Program Performance Report dated December 9, 1997 indicated that JM completed the Anger and Emotions Management Program.

He did not miss a session and was an active participant who possessed a good to very good understanding of the program material and a fair to good ability to apply the skills he was taught in the program if he applied himself. However, the program facilitator was of the view that JM demonstrated little progress and unless he had a clear, well thought out relapse plan of what he was going to do in high risk situations, his level of risk was not likely to be reduced. [ 43 ] The National Parole Board in their Pre-release Decision sheet dated January 7, 1998 stated: . . .

JM accepts responsibility for his offences but attributes them directly to his use of alcohol/drugs. During the hearing he expressed genuine remorse for his actions. While incarcerated he has completed a number of programs that include Offender Substance Abuse Pre-release Program, attending AA/NA meetings at the institution, granted escorted temporary absence to attend AA/NA’s in the community, GED, Grievance Support Program, various Aboriginal programming, Anger Management and Cognitive Living Skills.

The facilitators describe fairly positive progress and increased awareness of the cause of his prior negative behaviour. The recent Psychological Report indicates that JM acknowledges his problem areas and has begun to understand himself. According to the psychologist this is a result of his involvement in programs including AA and Native Spiritual Activities. It is noted that JM has begun to establish some “credibility” with the successful completion of cultural escorted temporary absences.

However, the psychologist is not prepared to form an opinion as to management of risk in the community at this time and recommends a fresh Correctional Treatment Plan now may be appropriate and helpful and a new assessment in 10/12 months. The Board notes that JM was detained to his warrant expiry date on his last federal sentence and offended while on probation. The case management team indicated that during this incarceration JM has made significant changes in his attitude and the manner in which he deals with high risk situations.

He has developed a positive, non-drinking community support network through AA meetings. He is now able to see, through sobriety, positive aspects of his new road to life. His case management team and the institutional elder identify these positive changes and are fully supportive of a day parole release. The Board feels that the risk in JM’s case has been reduced to the point where it can be managed in the community under supervision and that a gradual, structured form of release is a necessary step towards successful integration into the community. [ 44 ] The Progress

Summary dated May 28, 1998 is particularly telling as to where JM is in relation to his programming and risk levels to this point in his sentence. It states: As evidenced by the length and severity of his criminal record, JM has never succeeded at any previous attempts to turn his life away from criminal activity. During his incarceration at Saskatchewan Penitentiary for this sentence, he has been compliant with all aspects of his Correctional Plan.

He has involved himself in substance abuse treatment by attending AA meetings (as chairman of his own group), completing ETA’s to community meetings, and completing the OSAP Program successfully. He completed the Cognitive Skills and Anger Emotions Management Programs with good results. It was noted by the facilitator of the Anger Program however, that although JMa good understanding of the material and was cooperative, unless he develops a thoughtful plan to deal with high risk situations, his level of risk will not be reduced.

Until he is released into the community and is faced with such a situation, it is difficult to gauge whether or not JM has a clear indication or determination in his own mind of how he will react in high risk situations. To his credit, he was also involved with the Chaplaincy Program, and with the Aboriginal Spirituality Program. He completed the Grief Support Program which aimed to deal with childhood and family issues that have led to dysfunctional criminal behaviour with the intent of neutralizing the ongoing cycle of violence and abuse.

Again it is not clear if he will be able to apply his new understanding and skills to his situations of life in the community. He should continue to develop his spirituality with the help and guidance of Native elders and cultural events in the community.

Since his attitude towards his family members has justified his violent behaviour in the past, he needs to complete additional programs for family violence. The most recent Psychological Report completed by Dr. Couture on 97/11/21 indicated that he required almost another year of treatment and program involvement before his risk would be manageable in the community. Hopefully, by the time he is released on statutory release he will have made the additional gains required to make that risk manageable.

When one considers his past record of offending behaviour and non-compliance with conditions in the community, his prospects for completing this statutory release time period without re-offending seem poor. However, so far in this sentence, he appears to have made a concerted effort at turning his life around. [ 45 ] JM was released on statutory release on August 7, 1998, as a result of his compliance with his Correctional Plan, his successful completion of a number of programs and his dedication to changing his attitudes and his lifestyle.

However, on August 21 st he was drinking at a party at the residence at which he was living and he had failed to go to a community AA meeting as promised. He denied that he had been drinking until a urinalysis test proved otherwise. His parole was not revoked but his conditions in the community were made more stringent. [ 46 ] On September 3, 1998, JM attended the parole office with alcohol on his breath. As an alternative to suspending his parole, his parole officer gave him the option of going to an in-patient detox centre.

JM was willing to go but when he was picked up by the parole officer he had consumed more alcohol. Upon admission to the Prince Albert Metis Addictions Centre, he became threatening and belligerent to the intake nurse. As a result he was arrested and his parole suspended. In his report dated September 8, 1998, his parole officer recommended revocation of his statutory release. He said: The subject’s behaviour over the last 30 days demonstrates that he is not prepared to abstain from the use of substances. When under the influence of alcohol, the subject has the potential to display aggressive behaviour.

Until such time as the subject is prepared to lead a sober lifestyle, he poses a risk to re-offend. The subject believes that his suspension should be cancelled so that he can be given a second chance. Although the subject states that he now wants to lead a sober lifestyle and is attending AA and meeting with the institutional elders, he is still minimizing the seriousness of his substance abuse problem and his commitment to change does not sound sincere.

Cancellation of the suspension is considered pre-mature as the subject would benefit from institutional programming and contact with Native elders in an environment free of alcohol. [ 47 ] The National Parole Board revoked JM’s parole and he was returned to the penitentiary where he took the Relapse Prevention Program. He completed that program and was again placed back into the community on statutory release on April 16, 1999. Two days later, the Prince Albert police found him intoxicated and passed out in someone’s yard.

When interviewed by his parole officer regarding his breach, he stated: JM said in the interview that he finds it hard to avoid peer pressure to drink but he realizes that drinking does him no good. JM claimed that this incident was the rude awakening he needed and is now ready to make a new start and participate in community programming. He also indicated that he would now have the will power to avoid people who drink.

JM appeared to be sincere but from his track record it is apparent that he has had many opportunities to turn things around as well as many “rude awakenings” and has yet to make a serious effort to improve in the community. [ 48 ] As a result of this breach, JM was returned to the penetentiary. He was released again on statutory release on June 30, 1999. On July 2 nd JM was again found intoxicated. He was arrested but was returned to the community as he was only days away from his warrant expiry.

The final conclusion of his parole officer appears in his Assessment Report dated July 30, 1999: JM obviously has no motivation to change his ways or to avoid substance abuse. He also greatly minimizes his substance abuse problem and does not see it as a big issue. Given the current circumstances, it appears that JM has a poor attitude toward supervision and does not take his responsibilities while on supervision seriously. [ 49 ] Following release from the penitentiary, JM found himself in and out of the Provincial Correctional Centre on numerous occasions.

While incarcerated at the Saskatoon Correctional Centre in June, 2006, the following comment from his case manager appears in the Log Detail Report for June 17:

JM is what would be deemed a small time habitual criminal. His crimes are mostly shoplifting, stealing to support his addictions. His social contacts are all alcohol and drug abusers. His lifestyle is not conducive to change. JM comes into jail several times a year, gets healthy, then gets out and does it all again. When he is at Urban, so far, he is quiet and cooperative, gets along well with staff and other inmates, does what he is told. Who knows what affect his substance abuse will have on him in the future?

For JM, unless he completely changes his environment and associates he will most likely re-offend and, unless he is struck by a bolt from God, he is not likely to make any changes. [ 50 ] And as recently as April 21, 2008 when he was incarcerated, his case manager wrote: Many of JM’s presenting issues and risk factors are very long standing and have developed over the course of years.

This will present some additional challenges in securing his cooperation in being motivated to make necessary changes in his life, priorities and peer associations but it remains a worthwhile goal that can work towards enhancing both a better quality of life and community safety.

e) Dr. Nicholaichuk: [ 51 ] Dr. Terry Nicholaichuk testified in this hearing. He has an MA and PhD in clinical psychology and is an adjunct professor of psychology at the University of Saskatchewan. He is also a correctional psychologist employed by Correctional Service Canada and has been for a number of years. At one point he was the national manager for psychologists and sex offender programs in Correctional Service Canada and later a regional manager. He prepared the initial Psychological Assessment on JM.

With the consent of the Defence, he was qualified as an expert in the area of research, risk assessment, clinical and forensic psychology with a background in the assessment and management of sexual and non-sexual violence. A copy of Dr. Nicholaichuk’s curriculum vitae was filed at the outset of his testimony. Having reviewed it and the testimony he gave regarding his qualifications, I have no hesitation finding that he was eminently qualified to testify in these areas. His testimony was of considerable assistance to the Court. [ 52 ] Dr.

Nicholaichuk interviewed JM at the Saskatoon Correctional Centre over several days and he reviewed the Correctional Service Canada records and Saskatchewan Correctional Centre records that have been filed with the Court on this hearing. He also had JM perform a number of tests including the Static 99-R, the Violence Risk Scale, the Violence Risk Scale - Sex Offender version and the Weschler Adult Intelligence Scale. He scored at the highest level on each violence risk scale that he was tested on however Dr. Nicholaichuk cautioned that only the Static 99-R has some adjustment for age.

The results of all other risk assessments should be adjusted to reflect this age factor. When that was done, JM’s risk factor dropped. But how low it dropped was not testified to by Dr. Nicholaichuk. On the Weschler Intelligence Scale, JM scored at the bottom end of the border of being mildly mentally retarded. [ 53 ] As a result of all this information, Dr. Nicholaichuk concluded that JM had a massive addiction problem. This problem manifested itself into a pattern of generally violent behaviour that at times included sexual violence.

As secondary to this issue, JM suffered from the lack of a pro-social support system. Finally, while some of his penitentiary records seem to indicate that JM has some intelligence, the results of the Weschler intelligence testing led Dr. Nicholaichuk to conclude that years of unabated substance abuse had taken their toll on JM to the point that he now has cognitive difficulties and may quite possibly be suffering from alcohol related dementia. [ 54 ] Dr. Nicholaichuk did not find any signs that JM was suffering from any major mental disorders.

There was one report dating back to April 8, 1991 stating that JM had a history of bipolar affective disorder however Dr. Nicholaichuk found nothing to substantiate this comment. In his opinion, based on everything he read in JM’s file, his discussions with JM and the testing he did, JM was not suffering from bipolar affective disorder. [ 55 ] Dr. Nicholaichuk also concluded that JM was not a sexual deviant. He explained that a sexual deviant is someone who has an ongoing interest in some unusual, usually illegal, sexual activity or sexual preference.

JM on the other hand resembled the bulk of the people he sees who are sexually violent as a result of a general pattern of substance abuse and violence. [ 56 ] On the basis of what Dr. Nicholaichuk did see, he described JM as a high risk, high needs offender. This opinion was

supported by the records from both federal sentences that JM completed. In other words, he was high risk in 1989, continued to be high risk, high needs in 1996, and is still high risk, high needs today. [ 57 ] According to Dr. Nicholaichuk, people like JM are more disregulated and generally criminal and violent. It is more difficult to treat people like this because there is no one focused treatment target. Despite this, Dr. Nicholaichuk did not testify that it would be impossible to treat JM. In fact, Dr.

Nicholaichuk was of the view that the relationship between JM’s alcohol consumption and risk for being violent would decrease with age. In support of this conclusion he cited some studies, especially a study done by Sampson and Laub, where researchers found that even among persistent offenders, the rate for sexual offending dropped off at age 45, the rate for violent offending dropped off significantly by age 50, and by age 60, the risk to commit crime was virtually zero. This study also showed that the rate of substance abuse rolls off much later.

In JM’s case, while he will persist in committing non-violent offences, Dr. Nicholaichuk expects his risk for committing violent offences will decrease. [ 58 ] Dr. Nicholaichuk pointed to JM’s criminal record as evidence of his risk for violence declining. In his teens and twenties, he was involved in some fifteen violent offences. In his thirties, he had only five violent convictions on his record. In his forties he had eight violent convictions, but the bulk of his convictions were minor, nuisance offences. What this pattern told Dr.

Nicholaichuk is that JM would continue to break the rules but the violence would decline even further. [ 59 ] On JM’s first federal sentence in 1989, he was manipulative and not motivated to complete any programming. The end result was that he was considered of sufficiently high risk to commit a personal injury offence and therefore was held to his warrant expiry. On his second federal sentence in 1996, he took quite a number of programs at the federal institution including the OSAP program which was a program for substance abusers. By all accounts he was an active participant in all the programming he took.

However the facilitators disagree on how much he got out of the programs. Some felt he learned from their program while others felt he did not. Dr. Nicholaichuk cautions on reading too much into this information because there was no information as to what JM’s cognitive ability was at the time or how his facilitators were measuring his degree of success. What is clear is that the people on JM’s case management team were impressed with his efforts as was the National Parole Board, so much so that he was given statutory release.

However, he breached his statutory release by drinking shortly after he was back in the community. He was released again and breached twice more by drinking. These breaches were not atypical in Dr. Nicholaichuk’s experience. They showed that the programming JM took was not sufficient and did not work for him. [ 60 ] In Dr. Nicholaichuk’s opinion JM’s relapses were not the result of his inability to learn but rather how we teach him to manage his behaviour. The common denominator in all his offending is substance abuse and his lack of a pro-social support system. These two things are changeable.

If we want him to change, then we have to alter his environment and teach him how to manage his behaviour and alter his environment. [ 61 ] Dr. Nicholaichuk noted that JM had a lot of success in jail when he was strictly supervised, but once he was placed back in the community and had no supervision, he was quick to relapse into his usual pattern of alcohol abuse. Moreover, some of the facilitators felt that although he was participating in the programs, he was not getting anything out of them. Dr. Nicholaichuk’s testing showed that JM’s ability to understand and express himself verbally was impaired.

As a result, you have to modify how you treat someone like this to teach them how to manage their behaviours. In Dr. Nicholaichuk’s view, someone with these problems learns better by doing rather than by being told and benefits more from programs out in the community rather than in an institution. Thus he needs to be placed in a community environment where he can be closely managed so as to continue with his programming and to avoid his previous negative peer group.

f) Other Evidence: [ 62 ] Ms. Lee Anne Skene is the manager of programs at Saskatchewan Penitentiary. She oversees all the core programs, aboriginal programming and leisure activities at the penitentiary. Ms. Skene provided the Court with specific information about programming at the federal institution. In 2003 the substance abuse programming at federal institutions was overhauled. Prior to 2003, the substance abuse program was called the Offender Substance Abuse Pre-release Program (OSAPP). In 2003, Correctional Service Canada switched all its programming to following the social learning model. As a result, two programs emerged from the old OSAP

Program. The first was a National Substance Abuse High Intensity Program and the second was the National Substance Abuse Moderate Intensity Program. The high intensity program was for men who had been rated high risk, high needs offenders. It ran for four to six months and included both group work and individual counselling. The moderate intensity program only ran six to eight weeks and there was no one-on-one sessions. [ 63 ] Since 2008, they have also had an aboriginal substance abuse high intensity and moderate intensity program.

They are identical in all aspects to the high and moderate intensity programming aforementioned except the aboriginal programming has an elder attached to it. Inmates are given the choice to participate in either the aboriginal or non-aboriginal programs. [ 64 ] Ms. Skene said that Correctional Service Canada institutions now offer a high intensity and moderate intensity sex offender program. Both these programs are new as of 2007 and have a psychologist attached to them. The high intensity program runs for six to eight months and involves both group work and individual counselling.

The moderate intensity program only runs for four to six months. Prior to 2007, this program did not exist at Saskatchewan Penitentiary. If an inmate required sex offender treatment they were sent to the Regional Psychiatric Centre. [ 65 ] There is also a violence prevention program offered at federal institutions. The High Intensity Violence Prevention Program has been offered since 2000. There is also an aboriginal high intensity program called In Search of Your Warrior that mimics the high intensity violence prevention program and has also been in place since in 2000.

In 2006, a moderate intensity violence prevention program was offered for the first time. These programs replaced the Aggressive Behaviour Control Program previously offered only at the Regional Psychiatric Centre. [ 66 ] Ms. Skene testified that although they have had an Aboriginal Cultural Centre at the Saskatchewan Penitentiary for over ten years, it is only since 2000 that they have really begun to implement an aboriginal component to some of their programming and created the Aboriginal Initiatives Department.

There are now a number of aboriginal cultural activities and an aboriginal pathway offered to all inmates. [ 67 ] If an inmate was cognitively impaired, they would be sent to the Regional Psychiatric Centre to take programming. A lot of the programming offered at the penitentiary is also offered at the Regional Psychiatric Centre.

The programming at the Regional Psychiatric Centre is offered over a longer time period to account for an individual’s learning disability. [ 68 ] The penitentiary also offers maintenance programs for sex offenders, substance abuse and general violence out in the community for inmates who are on parole. These programs are meant to provide positive support in the community as well as to highlight relapse prevention. [ 69 ] Ms.

Skene expressed her opinion that the programming offered at federal institutions today is much better than the programming offered prior to 2002 and the system today is better able to facilitate the programming. Prior to 2002, the emphasis was not on helping an inmate with their problems but rather on making them employable once they were released. However, Correctional Service Canada determined that this emphasis was not working. In 2002, they shifted the emphasis from strictly employability to include programming to assess someone’s criminogenic factors. This is where we are today. [ 70 ] JM attended the St.

Louis Rehabilitation Centre in 1999 and 2004. In 2008, the program changed its name to the Saskatchewan Impaired Driver Treatment Centre and he again attended. Michelle Ketzmerick, the Director of the Centre, testified that it is a provincially run correctional facility that acts as an inpatient substance abuse treatment centre. It is a short term program. In 2009, it was extended to three weeks.

They will accept any offender whose offences are related to substance abuse however, they primarily deal with individuals who have been convicted of drinking and driving offences. [ 71 ] JM’s counsellor in 2004 and 2008 was a lady by the name of Nadine Moen. She testified that JM successfully completed the program each time he took it. It was her view that he learned from the program and understood what he had to do but was just not able to act on that information when he was back in the community.

However, she also indicated that JM had a severe substance abuse problem that required more than the two weeks programming they provided to successfully deal with his level of substance abuse.

[ 72 ] Theresa Gadzella, a corrections worker at the Saskatoon Correctional Centre, was also called by the Crown as a witness in this hearing. She worked on the Remand Unit that is presently housing JM. In her experience with him, she was of the view that he was good at following instructions and directions, but she found him to have difficulty with decision making and planning. [ 73 ] The Court also heard testimony from James Gonzo and Kendall Kerr. Mr. Gonzo has held a number of positions within Correctional Services Canada and at present is the regional segregation oversight manager. Mr.

Kerr has worked for Correctional Services Canada for twenty six years, the last fourteen of which he has been a community parole officer. Mr. Kerr was JM’s parole officer in 1998 and 1999 and confirmed JM’s poor showing on statutory release. Both of these gentlemen spoke of how the federal system deals with offenders out in the community on long term supervision orders. Both were of the view that it would provide a challenge to supervise an offender in JM’s situation in the community but both agreed that it was certainly possible. ISSUES:

A) Does JM meet the criteria to be declared a Dangerous Offender under section 753(1.1) of the Criminal Code ?

B) Does JM meet the criteria to be declared a Dangerous Offender under section 753(1)(a)(

I) of the Criminal Code

C) Does JM meet the criteria to be declared a Dangerous Offender under section 753(1) (a)(ii) of the Criminal Code ?

D) Does JM meet the criteria to be declared a Dangerous Offender under section 753(1) (

b) of the Criminal Code ?

E) If JM meets the criteria to be declared a Dangerous Offender, what sentence should he receive? ANALYSIS

A) Does JM meet the criteria to be declared a Dangerous Offender under section 753(1.1) of the Criminal Code ? [ 74 ] One of the July 2, 2008 amendments to the Criminal Code was the addition of section 753(1.1) . This

section made it easier for an offender to be declared a dangerous offender. Essentially, an offender is presumed to be a dangerous offender if certain criteria are met. The Crown must prove the criteria beyond a reasonable doubt. If they do, then it becomes the offender’s responsibility to prove, on a balance of probabilities, that he or she do not meet the definition of a dangerous offender set forth in section 753(1) (

a) or (b). [ 75 ] The criteria set forth under section 753(1.1) are:

a) The predicate offence is a primary designated offence for which it would be appropriate to impose a sentence of imprisonment of two years or more; and

b) The offender was convicted at least twice previously of a primary designate offence and was sentenced to at least two years of imprisonment for each of those convictions. [ 76 ] The term “primary designated offence” is defined in

section 752 of the Criminal Code . For the purposes of JM’s case only subsection (

a) of this definition has any applicability. This subsection states as follows:

“primary designated offence” means

a) an offence under any of the following provisions: (

i) Section 151 (sexual interference), (ii)

Section 152 (invitation to sexual touching), (iii)

Section 153 (sexual exploitation), (iv)

Section 155 (incest), (

v) Section 239 (attempt to commit murder), (vi)

Section 244 (discharging firearm with intent), (vii)

Section 267 (assault with a weapon or causing bodily harm), (viii)Section 268 (aggravated assault), (ix)

Section 271 (sexual assault), (

x) Section 272 (sexual assault with weapon, threats to a third party, or causing bodily harm), (xi)

Section 273 (aggravated sexual assault), and (xii) Section 279(1) (kidnapping), . . . . [ 77 ] The first set of criteria under section 753(1.1) are met in JM’s case. His predicate offence was a sexual assault contrary to

section 271 of the Criminal Code . By definition, it is a primary designated offence. I am also satisfied that it would be appropriate to sentence him to jail for two years or more given the circumstances of the offence for which I convicted him. The Saskatchewan Court of Appeal has established a starting point of three years incarceration for offenders convicted of sexual assault. The sentence can be increased or decreased depending on the aggravating or mitigating factors. In this case, there are a number of aggravating factors and few mitigating factors.

As such, I would sentence JM to at least three years, if not more, for his predicate offence if I was sentencing him to a fixed term sentence. [ 78 ] I am not however satisfied that the second criteria has been met. Specifically, I am not satisfied that JM has two prior convictions for primary designated offences for which he was sentenced to a federal period of incarceration. Despite his lengthy criminal record, JM was only ever sentenced to jail for two years or more on two occasions. First, for a number of offences on May 9, 1989, and secondly, for another set of offences on August 8, 1996.

The offences for which he was convicted on August 8 th were sections 266 , 348(1) (

b) and 740 of the Criminal Code . None of these offences fall within the definition of primary designated offence in

section 752(

a) or any of the other subsections contained therein. [ 79 ] On May 9, 1989, JM was convicted and sentenced as follows: Sexual assault - s. 271(1) 33 months Assault causing bodily harm - s. 267(1)(b) 33 months concurrent Assault with a weapon - s. 267(1)(a) 12 months concurrent Pointing a firearm - s. 86(1) 12 months concurrent Assault - s. 266 6 months concurrent

[80] Of these offences, section 86(1) and

section 266 are not primary designated offences. Section 267(1)(

a) is a primarydesignated offence, but JM only received a 12 month sentence concurrent to any other time he was serving. Therefore none of theseoffences would fall within the second set of criteria in s. 753(1.1). [81] The remaining two offences for which he was convicted on May 9th, section 271(1) and section 267(1)(

b) are both primarydesignated offences. As well, he received a sentence in excess of two years for both these offences, albeit the sentence on the assaultcausing bodily harm was concurrent to the sentence for the sexual assault. However, not only did both of these offences arise out of thesame incident, but JM dealt with them in the same trial and he was convicted and sentenced on them on the same date. As a result theyare considered one conviction for the purpose of section 753(1.1). To find otherwise would be contrary to existing law. [82] In R. v.

Skolnick, (SCC), [1982] 2 S.C.R. 47, the Supreme Court of Canada dealt with this issue in the contextof multiple drinking and driving convictions. In that case, Skolnick had been convicted of impaired driving and refusing to provide abreath sample out of the same drinking and driving incident. Three years later, he was convicted again of impaired driving and given theminimum sentence prescribed for a third offence.

On appeal of sentence the Ontario Court of Appeal found this to be Skolnick’s secondoffence, not his third offence, and reduced the sentence to the minimum for a second conviction. [83] A further appeal to the Supreme Court of Canada was dismissed. Speaking for a unanimous Court, Chief Justice Laskin heldthat the common-law principle derived from Coke’s Institutes that a person cannot face jeopardy of an increased penalty for a subsequentoffence unless he has previously been convicted for that offence, is to be followed except where exempted by statute or by necessaryimplication.

He summarised the application of the rule as follows at pages 58-59:

(1) The number of convictions per se does not govern in determining whether the Coke rule applies.

(2) The general rule is that before a severer penalty can be imposed for a second or subsequent offence, the second or subsequent offencemust have been committed after the first or second conviction, as the case may be, and the second or subsequent conviction must havebeen made after the first or second conviction, as the case may be.

(3) Where two offences arising out of the same incident are tried together and convictions are entered on both after trial, they areto be treated as one for the purpose of determining whether a severer penalty applies, either because of a previous conviction orbecause of a subsequent conviction. (Highlights are mine)

(4) The rule operates even where two offences arising out of separate incidents are tried together and convictions are entered at the sametime. [84] The Saskatchewan Court of Appeal has accepted this reasoning. In the case of Neal v. Highway Traffic Board (Sask. C.A.),[1986] S.J. No. 153, the Court was dealing with the issue of whether the Coke Rule as set forth in the Skolnick case applies to provinciallegislation which provides sanctions for violation of a statute. In reaching the conclusion that it does, Mr. Justice Vancise, speaking forthe Court, said at page 5: . . .

The rule applies not only to penal sanctions, but sanctions or penalties of any kind imposed by statute. In our opinion, the increasedlength of suspension for second or subsequent convictions is a penalty designed to deter the offender from recommitting the offence. AsBlair J.A. stated, in R. v. Cheetham (1980), (ON CA), 53 C.C.C. (2d) 109, 17 C.R. (3d) 1, at p. 114 when dealing witha provision for more severe penalties for subsequent offences: However it may be expressed, the rationale for the rule is plain.

It is expected that the conviction and penalty for the initial offence andthe peril of a more severe penalty for a subsequent offence will be present in the mind of the offender and guide his future conduct.

[ 85 ] Section 753(1.1) does not state that all convictions for primary designated offences which occurred prior to the predicate offence irrespective of whether the offences have occurred on the same date, or the convictions occurred on the same date, are to be considered. As a matter of fact, it seems to me that the wording of the

section speaks to the contrary. The words “. . . and was sentenced to at least two years of imprisonment for each of those convictions . . .” lead me to the conclusion that the

section refers to offences for which an offender was convicted on different dates and received separate and distinct sentences each in excess of two years. Thus there is no statutory authority excluding the Coke Rule from applying to

Part XXIV of the Criminal Code nor is it clear by necessary implication that it is to be excluded. [ 86 ] On the facts of the present case, applying Skolnick , supra , the two primary designated offences that JM was convicted of on May 9, 1989, and for which he was sentenced to 33 months and 33 months concurrent must be considered as one conviction for the purposes of section 753(1.1) . Having reached that conclusion, JM has not been convicted at least twice previously of a primary designated offence and as such, I do not find that he meets the criteria of a dangerous offender pursuant to section 753(1.1) of the Code .

B) Does JM meet the criteria to be declared a Dangerous Offender under section 753(1) (a)(

i) of the Criminal Code ? [ 87 ] In R. v. Neve , 1999 ABCA 206 , the Alberta Court of Appeal set forth the elements the Crown must prove to establish that an individual is a dangerous offender under section 753(1) (a)(i). They must prove these elements beyond a reasonable doubt. At paragraph 107 they said: What does it take for the Crown to prove the required patterns of behaviour under ss.753 (a)(

i) and (ii)? While “pattern” is not defined in the Code , what is defined in each of ss.753 (a)(

i) and (ii) are the various components instrumental in creating the pattern. If the Crown fails to prove one or more of the required elements, then the proscribed pattern has not been made out. Under s.753(a)(i), the elements are the following: 1. A pattern of repetitive behaviour; 2. The predicate offence must form part of that pattern; 3. That pattern must show a failure by the offender to restrain his or her behaviour in the past; and 4.

That pattern must show a likelihood of death, injury or severe psychological damage to other persons through failure to restrain his or her behaviour in the future. [ 88 ] If the Crown meets this definition then the court goes on to consider whether they have proven, again beyond a reasonable doubt, that based on this pattern, the offender is a threat to the life, safety or physical or mental well-being of others. At paragraph 102 in Neve , supra , the Court says: What then does s.753(

a) require on the threat issue? The core finding which the judge must make at this stage is whether the offender constitutes a threat to the life, safety or physical or mental well-being of other persons as defined under s.753(a). 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). [ 89 ] In the present case, JM has shown a pattern of repetitive behaviour of which the predicate offence forms a part. He has 170

convictions on his criminal record committed consistently over the last thirty one and a half years. Virtually all of his offences were committed when he was under the influence of alcohol. Dr. Nicholaichuk, the Correctional Service Canada records, the Provincial Correctional Centre records, and JM himself, all agree that when he drinks he gets into trouble of some nature.

Generally speaking, his pattern is that he gets drunk and commits offences. [ 90 ] More specifically, of the 170 convictions on his record, he has twenty four convictions for offences involving some degree of violence and four convictions for sexual offences. Fifteen of these offences occurred in the 1980's, five occurred in the 1990's, eight occurred between 2000 and 2009, including the predicate offence.

While it does not appear that every time JM drinks he commits a violent offence, every violent offence he has committed has occurred while he was under the influence of alcohol. [ 91 ] Over the years, JM’s penchant for committing violent offences has dropped. The majority of violence on his record occurred when he was a young man in his twenties. As he aged he continued to commit crime but the instances of violent crime drop

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