Her Majesty the Queen - v. -, 2015 SKPC 162

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 162 Date: December 23, 2015 Information: 30572559 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Dennis Whitford Appearing: Kim Jones For the Crown Rod Simaluk For the Accused DECISION M. BEATON , J INTRODUCTION [ 1 ] On June 18, 2014, Dennis Whitford pled guilty to a charge of aggravated assault contrary to s. 268 of the Criminal Code .

Prior to sentencing, the Crown applied for an assessment order pursuant to s. 752.1 of the Criminal Code , alleging that the offence of aggravated assault was a serious personal injury offence and that there were reasonable and probable grounds to believe that Mr. Whitford might be found to be a dangerous offender. On August 5, 2014, I granted the Crown’s application and ordered an assessment of Mr. Whitford to be completed by Dr. S. Lohrasbe.

[ 2 ] The Crown takes the position that Mr. Whitford should be designated as a dangerous offender pursuant to s. 753 of the Criminal Code and sentenced to an indeterminate period of custody. Should I not impose an indeterminate sentence, the Crown asks that I impose a 12 year term of incarceration followed by a long term supervision order for a term of 10 years. Defence counsel takes no position on whether Mr. Whitford should be found to be a dangerous offender but argues that he should be sentenced to a term of custody in the range of six to eight years plus a six year long-term supervision order pursuant to s. 753(4) (

b) of the Criminal Code . [ 3 ] The Crown presented eight witnesses including Dr. Lohrasbe. The other seven witnesses described programming available for incarcerated individuals and for individuals subject to a long term supervision order. Witnesses also testified to Mr. Whitford’s progress or lack thereof while incarcerated. The defence did not call evidence. BACKGROUND OF MR. WHITFORD [ 4 ] This information was obtained from Mr. Whitford by Dr. Lohrasbe. Mr. Whitford, who is now 51 years old, was born in Penatanguishene, Ontario but he spent most of his childhood and adolescence in Drumheller, Alberta.

His natural father was a heavy drinker and a violent man who physically abused his wife and son. Mr. Whitford’s parents separated when he was young and his mother remarried shortly after being divorced. As a child he had a tendency to bottle up negative feelings and then release them in the form of explosive anger. He had poor role models in his adolescence and started drinking at the age of 15. By age 16, he had developed a severe alcohol problem and drank hard liquor every day to the point of losing consciousness. As a youth he was sexually assaulted by his stepfather over a period of several years.

He left home as a teenager and when he wasn’t incarcerated, he was living on the streets. On the streets he became immersed in alcohol, drugs and criminal activity. CRIMINAL HISTORY [ 5 ] The accused’s criminal record is found in

Schedule A to this decision and it consists of 33 convictions. Although it appears that, based on Mr. Whitford’s criminal record, he has been sentenced to penitentiary terms on four occasions, the crown has only filed documents relating to three penitentiary sentences. I therefore refer to the penitentiary sentence which began in 1989 as Mr. Whitford’s first penitentiary sentence. That year he was sentenced to a total term of seven years incarceration for committing the offences of robbery and use of a firearm during the commission of that robbery. Mr.

Whitford and two other accused were on foot when they flagged down a passing truck. The truck stopped and Mr. Whitford approached the passenger side and pointed a semi-automatic handgun at the passenger, entered the truck and then fired a shot through the front windshield. The co-accused demanded and obtained the wallet of the driver. Mr. Whitford and the co-accused then drove off with the truck. Both were arrested shortly thereafter. He had been unlawfully at large from a provincial term of incarceration when he committed this robbery. [ 6 ] Mr.

Whitford was released on statutory release on September 3, 1993, but was arrested and charged with violent offences approximately six weeks later. Mr. Whitford’s statutory release was subsequently revoked. [ 7 ] In 1994, Mr. Whitford pled guilty to two charges of uttering threats and a charge of assault with a weapon and was sentenced to 30 months incarceration. Mr. Whitford had become irate with a friend’s girlfriend named Connie Sadlier and while at her home, he hit her several times with his fist while yelling at her. Mr. Whitford knocked Ms.

Sadlier to the ground, pulled out a gun and stuck it to her head, stating that he was going to kill her. Mr. Whitford was under the influence of alcohol during this occurrence. Ms. Sadlier was of the opinion that this assault occurred because Mr. Whitford believed that she had advised his girlfriend that he was being unfaithful. Approximately 10 days later, Mr. Whitford contacted his girlfriend’s ex-husband by phone and verbally threatened to kill him. [ 8 ] On April 11, 1997 Mr. Whitford was released on statutory release after serving his second penitentiary term of incarceration. However, on July 9, 1997, Mr.

Whitford’s statutory release was suspended and eventually revoked. A baseball bat and a knife had been located in his room at Oskana Centre, which is a federal community correctional centre. He was also demonstrating a negative attitude, playing the “heavy” at the centre, drinking alcohol and breaching other terms of his release. [ 9 ] He was released again on statutory release in May 1998, but arrested days later for sexual assault offences which had

occurred while he was living at the Oskana Centre during his previous statutory release. [ 10 ] While on his first statutory release, Mr. Whitford had been in some type of relationship with the complainant’s mother who lived in Saskatoon. Mr. Whitford was convicted of sexually assaulting her 13 year old daughter on three separate occasions during this time period. During the first occasion, Mr. Whitford touched the complainant’s breasts and vagina over top of her clothing.

On the second occasion, the complainant was sleeping on the couch and awoke to find that he had pulled her pants to her knees and was having sexual intercourse with her. On the third occasion, arrangements had been made for the complainant to travel to Regina on the bus and to stay with a friend of Mr. Whitford. Mr. Whitford met the complainant at the bus depot and took her to a hotel at which Mr. Whitford had rented a room. At one point Mr. Whitford, after taking a shower, exited the bathroom while wrapped in a towel.

He started to undo the buckle of the complainant’s shorts but she told him to stop and threatened to have him charged. [ 11 ] In 2000 Mr. Whitford received a sentence of 30 months incarceration, in addition to time spent on remand, for these three charges of sexual assault. He served this third term of incarceration in a penitentiary until September 15, 2002, which was his warrant expiry date. [ 12 ] On October 5, 2002, Mr. Whitford committed another violent offence of assault causing bodily harm. Mr. Whitford had been at a bar in Drumheller and met the complainant.

They had several drinks in the bar and ended up leaving together. After a short period of sexual contact, an argument took place, which resulted in Mr. Whitford hitting the complainant on the head, choking her around the neck and banging her head on the floor. The complainant received heavy bruising around the neck, heavy bruising on her wrists and cuts and bumps to the back of her head. In November 2003, Mr. Whitford was sentenced to a term of imprisonment of 23 months in addition to 13 months and 10 days pre-trial custody. His release date was not provided in evidence.

Nor was any evidence presented regarding the accused’s rehabilitation or lack thereof while serving this sentence. [ 13 ] In 2006, 2007 and 2011, Mr. Whitford received lesser sentences for three further violent or weapons offences. In particular, on June 7, 2006 he was arrested for assaulting his girlfriend. A witness saw him strike her with an open fist and when she walked away, he grabbed her and swung her around. They argued and Mr. Whitford then placed her in a headlock.

He pled guilty to a charge pursuant to s. 266 of the Criminal Code and was sentenced to 45 days imprisonment. [ 14 ] On February 14, 2007, Mr. Whitford accused his neighbour of ringing his doorbell multiple times. Mr. Whitford held a butcher knife to his neighbour’s face, waving it back and forth indicating that he was going to “shank” him. Mr. Whitford admitted to having used cocaine before this offence occurred. He pled guilty to a charge pursuant to s. 267 (

a) of the Criminal Code and received a 30 day intermittent sentence. [ 15 ] On February 26, 2011, police were called to deal with an incident involving a knife. When police arrived at the residence, the complainant advised that Mr. Whitford had been waving a machete in a generally threatening manner. Police detained Mr. Whitford and located a machete tucked into the back of his jeans. Mr.

Whitford pled guilty to a charge pursuant to s. 88 of the Criminal Code and was sentenced to 5 months incarceration less the time spent on remand. [ 16 ] The facts of the predicate offence were agreed upon and filed with the court. On September 28, 2013, at approximately 5:00 a.m., the victim and his spouse were walking to the Creeland Mini Mart in Regina, Saskatchewan in order to buy cigarettes. En route, the victim encountered Mr. Whitford and Ms. Bear. The victim asked Ms. Bear to purchase cigarettes on his behalf as he did not have his treaty card with him.

Ms Bear took the victim’s money and bought cigarettes but then refused to provide the cigarettes to the victim. An argument ensued. Mr. Whitford approached the victim from behind and stabbed him in the abdomen with a knife. The victim did not realize that he had been stabbed and swung his fist at Mr. Whitford. Mr. Whitford responded by swinging his right arm, knife in hand, at the victim. During the course of the altercation, Mr. Whitford stabbed the victim four times. [ 17 ] The victim spent ten days in hospital. The extent of the injuries were as follows: a.

Chest - the knife penetrated victim’s right lung and caused blood to enter the lung. A tube was inserted into the victim’s lung to drain the blood. This injury was in close proximity to vital structures including major thoracic blood vessels. If not treated in a timely manner with chest drainage, this wound would have been fatal. b. Abdomen - the knife pierced the victim’s large intestine in two places as it went through the large intestine. If untreated, this wound would have progressed to sepsis and death over a matter of days.

c. Thumb and wrist - the skin on the thumb was broken. These injuries did not require surgery. [ 18 ] Mr. Whitford has also pled guilty to a charge of impaired driving which occurred on October 12, 2013, approximately four months prior to the commission of the predicate offence. On that date, Mr. Whitford drove his vehicle into a parked car. A witness prevented him from leaving the scene and called police to attend. Mr Whitford advised police that he had been drinking alcohol for 16 hours. He was very unsteady on his feet and needed to be held up to get to the police vehicle.

Cannabis weighed at 1.05 grams was located in his pocket. He refused to provide breath samples and was belligerent with the officers. Mr. Whitford has not yet been sentenced on this charge. CORRECTION SERVICE OF CANADA RECORDS [ 19 ] Correctional Services of Canada records for Mr. Whitford’s three penitentiary sentences imposed for violent offences were filed in evidence. In

summary, Mr. Whitford at times appeared motivated to seek programming and improve his situation. However, most of the time, he wanted to be left alone to serve his time and did not participate in programming. [ 20 ] As noted in the progress

summary dated September 25, 1989, Mr. Whitford advised his parole officer that his sentence for the robbery conviction “served to wake him up. He feels that it is time to get his life in order. He wants to take care of his alcohol problem and get a trade”. In a psychological report dated September 20, 1990, the writer noted that Mr. Whitford presented as very guarded. He tended to minimize his own faults and lacked insight in his own motives. He lived only for the moment, giving little consideration to the consequences of his actions and to future planning. [ 21 ] In May 1991, Mr.

Whitford finally did successfully complete a six week substance abuse pre-release program. After taking this program, he was intent on achieving his personal drug and alcohol goals and he was adamant that he wanted to change his lifestyle and lead a productive life. However, notwithstanding his stated goals, he continued to be involved in criminal-like activities in the institution which included muscling, drug trade and making weapons. There were also incidences where Mr. Whitford had hostile and potentially violent reactions to the pressures of coping with general population and his mother’s death.

He was charged on numerous occasions for institutional offences which included an incident where he threatened a guard. Also, in February 1993, Mr. Whitford sent a letter to the warden threatening violence if he was placed in general population at the penitentiary. [ 22 ] A correctional plan dated October 13, 1994, during Mr. Whitford’s second penitentiary term noted that he was not interested in taking any programming but might consider it further along in his sentence.

He did participate in substance abuse programming while on statutory release even though he did not believe that he had a problem with drugs or alcohol. He attended the relapse maintenance program but only attended as it was a a condition of his release. He did not participate appropriately and he would have been transferred out of that program if his release had not been suspended for other reasons some of which included drinking alcohol in breach of his conditions. [ 23 ] A progress

summary report dated November 20, 1997 confirmed that Mr. Whitford had not participated in any programming of any sort since his return to custody. He also did not accept responsibility for his recent failure on conditional release. He blamed the “system” for his incarceration. In a progress report dated February 3, 1998, the writer stated: While Whitford has verbally expressed intent to improve himself at various times during his sentence, his actions have not followed suit. He does not present as an individual who is actively interested in addressing his case needs through program participation.

He left the impression that he would rather sit idly in his cell until released than complete programs in the community. This lack of motivation makes this writer wonder just how motivated Whitford is towards self-improvement. Whitford has completed the Breaking Barriers program while incarcerated, however, information/knowledge gained from the program appears to have little or no affect on him. [ 24 ] Later in the report it is noted: Dennis Whitford did complete some programming in the community and does need to be given credit for this.

Whitford successfully completed the Choices program and the reader is referred to the program performance report completed July 3, 1997. It indicates in this report that Whitford did gain some knowledge about the consequences of drug use, alcohol use, the effects alcohol and drugs have on others as well as his attitude and knowledge towards relapse prevention.

[ 25 ] In a psychological assessment dated March 28, 2001, the writer noted that Mr. Whitford successfully completed OSAPP, which is substance abuse programming, on August 6, 2000. Some improvement in Mr. Whitford’s knowledge and attitude towards drugs and alcohol was noted. Mr. Whitford’s gain through OSAPP was described as “somewhat purposeful as he did put forth a moderate to good effort to participate and further appeared to have a degree of self-motivation and willingness to apply himself to contribute, share, and attempt learning”.

However, in a correctional plan progress report dated April 10, 2000, the writer noted that Mr. Whitford refused to participate in core programming or sex offender programming. This refusal continued until Mr. Whitford was released on his warrant expiry date of September 15, 2002. EVIDENCE OF THE FORENSIC PSYCHIATRIST [ 26 ] Dr. Shabehram Lohrasbe is the forensic psychiatrist who assessed Mr. Whitford. He is a medical practitioner who has been practicing psychiatry, principally forensic psychiatry, for 30 years.

He has assessed more than 6,000 individuals in his capacity as a forensic psychiatrist and has testified on more than 600 occasions at all levels of trial courts throughout western Canada. He has testified in more than 130 dangerous and long-term offender hearings. He was qualified to give opinion evidence in the area of the risk of future violence for an individual and the possibility of eventually controlling that risk in the community, with particular reference to Mr. Whitford. [ 27 ] Dr. Lohrasbe interviewed Mr. Whitford on September 9, 2014. He also reviewed documents and records relating to Mr.

Whitford’s criminal history which were filed with the Court. Dr. Lohrasbe prepared a written report dated October 30, 2014, which was filed in these proceedings and he also testified in person. [ 28 ] Dr. Lohrasbe stated in his written report that Mr. Whitford presented as polite and friendly throughout the interview and was never hostile or threatening. According to Dr. Lohrasbe, Mr. Whitford spoke of the current sentencing proceedings with concern and trepidation but he also expressed hope and optimism about his future. Dr. Lohrasbe did note that Mr. Whitford had a unique and eccentric communicative style.

He tended to speak in broad, impressionistic terms even when describing concrete events and according to Dr. Lohrasbe, this could potentially be a barrier in effective and accurate communication, which is crucial for risk management. As well Mr. Whitford had significant problems with attention and memory. He was described as a thoroughly institutionalized man with a very limited education and significant memory deficits. Due to this institutionalization there was an overall poverty of content of thought that was likely to limit introspectiveness, self-awareness, imagination and empathy.

He tended to think in concrete and literal terms and yet appeared to be street smart. Dr. Lohrasbe was concerned that Mr. Whitford’s capacity to learn new material may be limited by specific memory deficits. Dr. Lohrasbe found that Mr. Whitford put little thought into the moral and psychological dimensions of the damage he had caused by his violent actions. In his world, violence was common and acceptable. He was relatively indifferent to what other people thought or said about him. [ 29 ] Dr. Lohrasbe also noted that Mr. Whitford was not an accurate historian.

Although he advised that he had been sober for approximately 10 years, he interpreted sobriety as meaning that he had been relatively sober and he did not count the use of crack cocaine in his definition of sobriety. As well, he admitted to drinking alcohol heavily in the days prior to the predicate offence. [ 30 ] Dr. Lohrasbe reviewed Mr. Whitford’s criminal history and noted that he had been sentenced on seven occasions for what could be considered violent offences. Mr. Whitford provided his own accounts of his prior criminal behaviours and Dr. Lohrasbe found that even though Mr.

Whitford partially accepted responsibility for some of his violence, there was also minimization, distortion and outright denials. According to Dr. Lohrasbe it was difficult to ascertain the relative roles of memory deficits, conscious deception or unconscious misrepresentations. [ 31 ] According to Dr. Lohrasbe, Mr. Whitford did have some insight into some of the situations which had led to angry outbursts. Mr. Whitford acknowledged that he required anger management in order to deal with certain situations in the community.

He had very little recollection of any programs he had done in the past but he believed that most of the programs he had completed were useless. He did however confirm that he would participate in any programs that were recommended to him. [ 32 ] Dr. Lohrasbe diagnosed Mr. Whitford as having a chronic substance abuse disorder and a mixed personality disorder with antisocial personality disorder being the component of greatest relevance to risk. Dr. Lohrasbe noted at page 27 of his report:

An essential feature of personality disorder is maladaptation to social norms and other people. People with personality disorder tend to exhibit inflexible, dysfunctional responses to challenge and conflict in interpersonal situations, which persists even when recognized as self-detrimental.

People with Antisocial Personality Disorder have an enduring set of characteristics that manifest through patterns of cognition (persistent ways of interpreting events, other people, and oneself), affectivity (appropriateness, intensity, lability, and intensity or emotional response to situations), interpersonal functioning (conflict-ridden, exploitative), and impulse control (deficient across time and situations). [ 33 ] While acknowledging that there are a number of methods of evaluating risk for violence, Dr.

Lohrasbe used a clinical formulation of risk and a structured professional guideline in his risk assessment. The structural professional guideline, known as HCR- 20 assesses past, present and future risk items. Ten factors in this guideline are historical, five factors are clinical reflecting present and dynamic correlates of violence, and five focus on risk management for the future. [ 34 ] When considering the historical risk factors, Dr.

Lohrasbe found the following eight factors to be present: previous violence, previous antisocial behaviour, relationship instability, substance abuse problems, personality disorder, early maladjustment and experience of trauma, violent attitudes, and prior supervision failure. Out of the five clinical factors to be examined, the only one relevant to Mr. Whitford was his limited and superficial insight into his personality dysfunctions, his aggressiveness and his need for treatment. Risk factors relevant to Mr.

Whitford included future problems with his living situation, lack of positive social supports and potential future problems in being compliant with correctional interventions designed to reduce risk. Dr. Lohrasbe believed that this risk factor may be in transition as Mr. Whitford had been compliant with institutional expectations in his current incarceration (on remand for the predicate offence) and had voiced his willingness to comply with future programs. His track record however suggested that he would have to make changes in his motivation in order to benefit from correctional interventions. Dr.

Lohrasbe was also concerned that Mr. Whitford’s past disinterest in programming and a hostility towards the correctional system would have an impact on his participation in any program. [ 35 ] Dr. Lohrasbe also noted that Mr. Whitford may have future problems with coping with stressful living circumstances as he had a limited range of coping skills. In applying the HCR-20 assessment to Mr. Whitford, Dr. Lohrasbe found that there were a large number of risk factors present and that Mr. Whitford remained a high risk for acts of violence in the foreseeable future, barring substantial changes by Mr.

Whitford. [ 36 ] Dr. Lohrasbe also used the clinical formulation of risk in his risk assessment. Dr. Lohrasbe viewed Mr. Whitford’s history of violence to determine the range of factors that contributed directly or indirectly to his violence in the past and which would likely continue to do so in the foreseeable future. According to Dr. Lohrasbe, Mr. Whitford’s personality disorders had been an important factor in promoting violence and remained influential. Therefore, again, the likelihood that Mr. Whitford would be violent in the future remained high. According to Dr. Lohrasbe, Mr.

Whitford’s chronic substance abuse was also an important factor in assessing risk in the future. Until Mr. Whitford had demonstrated absolute sustained sobriety, the likelihood of future violence remained high. [ 37 ] Dr. Lohrasbe also examined Mr. Whitford’s treatability. Dr. Lohrasbe was of the opinion that Mr. Whitford’s motivation for treatment did not run very deep. However, Mr. Whitford was aware that if he reoffended, he would be incarcerated for life and that he had currently run out of chances. He did not want to die as an old man in prison. Dr.

Lohrasbe believed that the ‘negative motivation’ of an indeterminate sentence would likely assist Mr. Whitford. Dr. Lohrasbe also noted that Mr. Whitford’s institutional behaviour had improved, he had had some positive experiences in the community, and had hopes for the remaining years of his life. Mr. Whitford also appeared to have developed a spiritual commitment to the Bible and could spontaneously describe in great detail how the Bible helped him. [ 38 ] In Dr. Lohrasbe’s opinion, if Mr.

Whitford engaged in an intense violence prevention program (which he had never previously taken) and learned that he benefits from cooperation and compliance, the possibility of reducing risk to levels that could be managed in the community was a realistic goal. Mr. Whitford did have the capacity to engage and benefit from the intense violence prevention program offered by Correctional Services Canada. However, Dr. Lohrasbe stated that if Mr Whitford continued to harbour hostility towards representatives of “the system”, risk management will be nearly impossible. At page 38 of his report, Dr.

Lohrasbe stated, However, his awareness that he runs a huge risk of prolonged incarceration if he reoffends may assist in greater efforts to examine and shift his attitudes. If he engages in the treatment programs that will be offered to him and learns that he benefits through cooperation and compliance, he may gradually come to see the ‘the system’ shares with him the goal of keeping him out of jails and prisons. It is then that the combination of aging , ‘burnout’, religion and close monitoring of his commitment to abstinence may be sufficient for risk

management in the community. [ 39 ] Although Dr. Lohrasbe did express concern about Mr. Whitford’s past performance with programming, this fact was not the only predictor of Mr. Whitford’s future performance. At page T21 of the transcript Dr. Lohrasbe stated: ... I am agreeing with you that the past is not encouraging, the past in terms of his willingness to participate in both programming and supervision. But I’m not willing to say that that is the only guide to what we can expect in the future. [ 40 ] At page T89 of the transcript, Dr. Lohrasbe commented on the possibility of Mr.

Whitford being managed in the community: ... The track record is not encouraging. But his prospects for treatment reducing risk to the point that he can be managed in the community is well within the bounds of possibility, reasonable possibility. I don’t see it as impossible or anywhere near impossible. [ 41 ] During his oral testimony, Dr. Lohrasbe was also asked whether his belief that Mr. Whitford’s risks could be reduced to the point where the community was safe was simply a triumph of hope over reason. Dr. Lohrasbe’s response at page T94 of the transcript was as follows: ...

I certainly have assessed people who have gone through the high-intensity violent program more than once, have re-offended. There comes a point where it becomes pure wishful thinking. This man is nowhere near that point. I do not - I cannot - without him going through that program, we are nowhere near that point. [ 42 ] Dr. Lohrasbe summarized his opinion as follows: Based on my interview with Mr. Whitford and a review of all available information, it is my opinion that as things stand and in the foreseeable future: (

a) there is a high likelihood that he will commit

an act of violence; (

b) there is a significant possibility of severe harm to a future victim; (

c) there is a realistic possibility that the risk he poses could be reduced through available treatment programs to the point where he can be safely managed in the community; (

d) at the point that he is released into the community, a lengthy period of follow up is crucial for ongoing risk management; (

e) risk assessments are not a one time endeavour, and future risk assessments closer to the time of his release into the community will assist in formulating specific plans and risk management strategies. STATUTORY FRAMEWORK [ 43 ]

Part XXIV of the Criminal Code sets out the dangerous offender criteria in the sentencing scheme. The relevant sections for the purpose of this application are: 752. In this Part, ... "serious personal injury offence" means (

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

(

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

b) an offence or attempt to commit an offence mentioned in

section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault). ... 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 ... (

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. ...

(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. ...

(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. A NALYSIS [ 44 ] Section 753(1) (a)(

i) of the Criminal Code requires the Crown to prove beyond a reasonable doubt that:

(1) the offence before the Court is a serious personal injury offence; (2) there has been a pattern of repetitive behaviour; (3) there has been a failure to restrain that behaviour; and (4) there is a likelihood of causing death, injury or serious psychological damage through similar failures in the future. [ 45 ] Section 753(1) (a)(ii) of the Criminal Code requires the Crown to prove beyond a reasonable doubt that: (1) the offence before the Court is a serious personal injury offence; (2) there has been a pattern of persistent aggressive behaviour; and (3) this behaviour shows a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his behaviour. [ 46 ] I find that the predicate offence before this Court was a serious personal injury offence as defined by s. 752 of the Criminal Code .

Mr. Whitford pled guilty to an aggravated assault and his conduct endangered the life or safety of Mr. Bluebell. [ 47 ] Our Court of Appeal in R v Knife , 2015 SKCA 82 , examined the meaning of the “pattern” requirement as found in s. 753(1) (a) (

i) and (ii). After examining a number of appellate court decisions, the Saskatchewan Court of Appeal found: 64 Section 753(1)(

a) is aimed at identifying patterns of violent behaviour. It is the repetition of the violent behaviour which forms the pattern. 65 Repetition obviously implies there is more than one offence. Thus an offender must have prior violent offences (even if only one), and the predicate offence must constitute a repetition of the offender's violent behaviour. 66 This is true of both s. 753(1) (a)(

i) and s. 753(1) (a)(ii). Both are aimed at identifying repetitive violent behaviour. For s. 753(1)(a) (i), the repetitive behaviour must show a failure to restrain the offender's behaviour as well as a likelihood of causing death or injury to other persons.

For s. 753(1)(a)(ii), the repetitive behaviour must show a substantial indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her actions. 67 There are two main ways of identifying this repetitive behaviour: as stated in Neve at para. 111, there may be similarities in the types of offences, or similarities in the degree of violence used.

For example, an offender with a history of committing aggravated assaults has necessarily demonstrated a repetition of violent behaviour, as a high degree of violence is implied in the very nature of aggravated assault.

Rosenberg J.A. in the Szostak decision of the Ontario Court of Appeal, at para. 63, agreed with Neve stating "Similarity... can be found not only in the types of offences but also in the degree of violence or aggression threatened or inflicted on the victims" ( Neve at para. 113). 68 However, despite similarities in the violent behaviour, the offences may be different due to extrinsic factors: for example, the victim may have died rather than been wounded (leading to a manslaughter charge rather than an assault charge); or the offender may have pleaded guilty to a lesser included offence for the purpose of a plea bargain.

These extrinsic factors may mean the types of offences on the offender's record are not the same, despite the fact the offender has repeatedly engaged in a similar degree of violent behaviour. To ensure the dissimilarities in extrinsic factors do not affect the issue of whether an offender is a dangerous offender, "repetition" can be demonstrated by similarities in the degree of violence used. 69 The Alberta Court of Appeal chose to use the phrase "degree of violence" to describe this latter idea in Neve . Another way of characterizing this same idea could be to refer to it as the "nature of the violence".

The nature of violence used may demonstrate significant similarities in the offender's behaviour which in turn may ground a finding of "repetitive behaviour"--for example, an offender who continually uses weapons to committing violent offences, regardless of what the specific type of offence is. The point is that the focus should be on similarities in the offender's violent behaviour that show a failure to restrain that behaviour. 70 Thus, where an offender has repeatedly engaged in violent behaviour and a pattern has been established showing (

a) a failure to restrain his or her behaviour and (

b) a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons in the future through a failure to restrain such behaviour, the offender must be designated as a dangerous offender. The fact of repetition demonstrates a failure to restrain the violent behaviour but the additional element of future risk must also be established.

71 Similarly, once a pattern of persistent aggressive behaviour has been demonstrated under s. 753(1)(a)(ii) showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences of his or her actions, then the offender must be designated as a dangerous offender. 72 Thus, the pattern/repetition analysis provides the evidentiary basis for assessing the future threat. It is this future threat the dangerous offender provisions are aimed at curbing. Broadly speaking, if a court is unable to conclude the offender will pose a danger to the public in the future based on the offender's prior violent offences, the requirements of s. 753(1)(

a) have not been met and the offender must not be designated as a dangerous offender. However, if it is apparent the predicate offence is not an isolated occurrence but is rather a repetition of violent behaviour which shows a failure to restrain violent behaviour and is likely to continue in the future causing injury or death to others (for s. 753(1)(a)(i)), then the offender does pose a danger to the public in the required sense and should be accordingly designated as a dangerous offender. [ 48 ] I am satisfied that Mr.

Whitford’s offending history demonstrates that he repeatedly resorts to violence in a wide variety of situations. In fact his offences have escalated in the level of violence used. I am satisfied that the Crown has established a pattern of behaviour pursuant to ss. 753(1) (a)(

i) and 753(1)(a)(ii) of the Criminal Code . [ 49 ] Mr. Whitford’s use of violence is connected to his inability to control his alcohol addiction and his inability to restrain his conduct when faced with certain social situations. Dr. Lohrasbe is of the view that Mr. Whitford’s risk for violence in the foreseeable future is high. I find that the Crown has proven that there is a likelihood of Mr. Whitford causing death, injury or severe psychological damage through failure to restrain his behaviour in the future. I also find that the Crown has proven that in the past Mr.

Whitford has demonstrated a pattern of persistent aggressive behaviour which shows a substantial degree of indifference on his part respecting the reasonably foreseeable consequences to other persons of his behaviour. [ 50 ] As a result, I find that the Crown has established beyond a reasonable doubt the statutory requirements of ss. 753(1) (a)(

i) and 753(1)(a)(ii) of the Criminal Code and I find Mr. Whitford to be a dangerous offender. [ 51 ] Having found Mr. Whitford to be a dangerous offender, I must determine the appropriate sentence in this case.

Section 753(4) of the Criminal Code notes the available choices which include an indeterminate jail sentence; a determinate sentence of not less than two years, plus an order that he be subject to a long-term supervision order for a period that does not exceed 10 years; or a determinate sentence. [ 52 ] Section 753(4.1) of the Criminal Code mandates the imposition of an indeterminate sentence unless the court 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. [ 53 ] Prior to the amendments to

Part XXIV in 2008, courts had discretion to sentence offenders who met the dangerous offender criteria to a lesser sentence if satisfied there was a “reasonable possibility” a lesser sentence would protect the public. Reasonable possibility had to involve more than mere hope or conjecture. See: R v Goforth , 2007 SKCA 144 , 302 Sask R 265, R v Haug , 2008 SKCA 23 , 307 Sask R. 1. The court in Goforth stated at para 54 : ...The authorities indicate that a “reasonable possibility”, of necessity, must involve something more than hope or empty conjecture.

In and of itself, the mere possibility that the offender might benefit from treatment is not sufficient to warrant a conclusion that there is a reasonable possibility of eventual control of the risk of reoffending.

In other words, a dangerous offender designation is not contingent on a finding that the offender has absolutely no prospect of successful treatment while incarcerated. [ 54 ] In Haug , the court stated at para 89 : The mere possibility that the offender might in the future benefit from treatment, to which he has been completely unamenable in the past, is not sufficient to warrant a conclusion that there is a reasonable possibility of eventual control of the risk of re-offending.

[ 55 ] The 2008 amendments changed the test of “reasonable possibility” to “reasonable expectation”. The definition of “reasonable expectation” has been reviewed by all levels of courts in Saskatchewan. See: R v Bunn , 2014 SKCA 112 , 446 Sask R 184, R v Toutsaint , 2015 SKCA 117 , R v Bird , 2015 SKCA 134 , R v J.T.M , 2011 SKPC, 379 Sask R 211, R v Neil Daniels , 2013 SKQB 324 , 271 CCC (3d) 339. It is accepted that an ‘expectation’ suggests likelihood, while a ‘possibility’ suggests a lower standard of potential.

It follows that the standard “reasonable expectation” will also not involve merely hope or empty conjecture. A “ reasonable expectation” cannot be based on so many contingencies as to be little more than an expression of hope. See: R v D.J.S , 2015 BCCA 111 , 120 WCB (2d) 321. [ 56 ] Although the standard has changed, the factors to consider under both tests are essentially the same. The real question is whether it is reasonable to expect that Mr. Whitford will make the required progress within the period of time of a determinate sentence and long-term supervision order. [ 57 ] I note that Dr.

Lohrasbe formulated his opinion in terms that there was a realistic possibility that Mr. Whitford’s risk could be reduced through available treatment programs to the point where he could be safely managed in the community. He was never questioned on whether there was a realistic expectation that Mr. Whitford could be safely managed in the community. [ 58 ] It is important to note that the risk posed by any given offender need not be eliminated, only that it be reduced to an “acceptable level”. See: R v Johnson , 2003 SCC 46 , [2003] 2 SCR 357, R v Daniels , 2011 SKCA 67 , 375 Sask R 1.

As well, courts need to consider the potential for reducing the threat of harm offered by the determinate sentence and the long term supervision order in combination. See: R v Lemaigre , 2004 SKCA 125 , 189 CCC (3d) 492, R v Badger , 2012 SKCA 119 , 405 Sask R 97. Conditions which apply to a long-term supervision order and the consequences of a breach of those conditions are effective tools to control and reduce the risk of re-offence in the community in appropriate cases. See: Badger .

As well, the law mandates the imposition of the least restrictive sanction that may be appropriate in the circumstances. [ 59 ] The court in Daniels acknowledged that an individual’s motivation to take programming may be influenced by a potential dangerous offender designation. At para 99, the court stated, “Even so, motivation is motivation, and if it drives, even in significant part, from fear of being locked away as a dangerous offender it is not the less real for that.” [ 60 ] In Badger , the court reviewed the underlying principles of the

Part XXIV provisions at para. 56: 56 The provisions of ss. 753 and 753.1, when working in tandem, are concerned to segregate the truly dangerous offender from other offenders whose risk of re-offence, while exceptional in nature and severity, appears nonetheless to be open to eventual control in the community through the imposition of a long-term offender sentence. This concern is born of the manifestly repressive nature of the sentence reserved for dangerous offenders, namely a sentence of imprisonment for an indeterminate period.

This is an extraordinary sentence inasmuch as it amounts to a form of indefinite preventive detention, and must therefore find justification in the extraordinary.

Hence, it has been held that such a sentence “finds its justification in the protection of the public when the risk of re-offence and resulting harm to others is so acute and potentially unmanageable as to warrant such detention.” R v Lemaigre , 2004 SKCA 125 , 189 CCC (3d) 492 (para.11) 57 That being so, the law recognizes that the sentence reserved for dangerous offenders is meant to apply only to that small group of offenders whose personal characteristics and particular circumstances militate strenuously in favour of indefinite preventive detention.

The corollary of this is that the sentence reserved for long-term offenders is reserved for that much larger group of offenders whose risk of re-offence, while exceptional, appears open to eventual control in the community or, put another way, appears open to reduction to an acceptable level in the community through the imposition of a long-term offender sentence: R . v. Lemaigre (paras. 11, 15, and 16 ). [ 61 ] I note that since Mr.

Whitford ’ s release from his 23 month term of incarceration imposed in 2003, he has only been in custody for a total of 6.5 months in addition to a short amount of pre-trial custody. In other words, he had been living in the community for approximately eight years prior to committing the predicate offence. He also had had some positive experiences in the community. On the other hand, the predicate offence has been Mr. Whitford ’ s most serious offence given the injuries suffered by the victim. [ 62 ] I accept Dr. Lohrasbe’s opinion that the reduction of Mr.

Whitford’s risk to levels that could be managed in the community is a realistic goal. Although Dr. Lohrasbe used the phrase “reasonable possibility” in formulating his opinion, I am prepared to find that there is a reasonable expectation that something less than an indeterminate sentence will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

[ 63 ] Mr. Whitford does have some insight into some of the situations which had led to angry outbursts in the past. He confirmed that he would participate in any programs that were recommended to him and that he did not want to be incarcerated for life. He has shown some motivation for treatment. I accept that his attitude towards authority has changed since during his current pre-trial custody he has been more compliant with institutional expectations than in the past.

He has never taken an intense violence prevention program. [ 64 ] While there are no guarantees, I find that the likely impact of aging, ‘burnout’, religion, the ‘negative motivation’ of an indeterminate sentence, and the completion of an intense violence prevention programming do support the expectation that Mr. Whitford’s risk will be diminished by the time he is released from prison and out from under long-term supervision.

SENTENCE [ 65 ] In determining the appropriate determinate sentence, the sentencing provisions set out in s. 718 to 718.2 of the Criminal Code provide guidance for the determination of a fit sentence. Mr. Whitford has a significant record for violence and the victim of the aggravated assault received serious injuries. The maximum penalty for this offence is 14 years incarceration. [ 66 ] I have determined that a fit and just global sentence for these offences is eight years. I am prepared to credit Mr.

Whitford for his remand time being that of two years, three months which will reduce the eight year sentence to five years, nine months remaining to be served. This sentence will allow Mr. Whitford the time to take advantage of the treatment he needs in order to be successful in the community. [ 67 ] Furthermore, I order that Mr.

Whitford be supervised in the community for a period of 10 years following his release in accordance with s. 753.2 of the Criminal Code and the Corrections and Conditional Release Act, S.C. 1992, c. 20. [ 68 ] As the offence of aggravated assault is a primary designated offence, there shall be an order pursuant to s. 487.051 in form 5.03 authorizing the taking of the number of samples of bodily su bstances that are reasonably required for the purposes of forensic DNA analysis. [ 69 ] There shall be an order pursuant to s. 109(1)(

a) prohibiting Mr. Whitford from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for life. [ 70 ] I order that my reasons for sentencing, together with all exhibits, asses sments, required transcripts and documents be forwarded to the Correctional Service of Canada. M. Beaton, J