Her Majesty the Queen - v. -, 2011 SKPC 80

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 080 Date: May 17, 2011 Information: 24412696 Location: Melfort _____________________________________________________________________________ Between: Her Majesty the Queen - and - Brian Ben Appearing: Nicole Leinenweber For the Crown Roseanne Newman For the Accused RULING ON S. 752.1 ASSESSMENT APPLICATION L.

DYCK , J [ 1 ] On January 26, 2011, Brian Ben was found guilty on a charge of assaulting a peace officer with a weapon, contrary to s. 270.01(1) of the Criminal Code . [ 2 ] The Crown has applied, pursuant to s. 752.1(1) of the Code , for an order remanding Mr. Ben for an assessment performed by an expert for use as evidence in an application to have Mr. Ben declared a dangerous offender. Defence counsel submits the order should not be made as the predicate offence is not a serious personal injury offence and it is not within the realm of possibility that Mr. Ben could be found to be a dangerous offender.

Is the Predicate Offence a “Serious Personal Injury Offence”? [ 3 ]

Section s. 752.1(1) of Code states as follows: 752.1

(1) On application by the prosecutor, if the court is of the opinion that there are reasonable grounds to believe that an offender who is convicted of a serious personal injury offence or an offence referred to in paragraph 753.1(2)(

a) might be found to be a dangerous offender under

section 753 or a long-term offender under

section 753.1, the court shall, by order in writing, before sentence is imposed, remand the offender, for a period not exceeding 60 days, to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under

section 753 or 753.1. [ 4 ] In order for the assessment order to be made, the Court must be satisfied that the offence is a “serious personal injury offence”, which is defined in

section 752 of the Code , the relevant portion of which reads as follows: 752. In this Part, “serious personal injury offence” means (

a) an indictable offence ... 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 ... [ 5 ] Mr. Ben has been found guilty of assaulting a peace officer while using a weapon. The Crown proceeded by indictment and therefore this offence carries a maximum penalty of “a term of not more than 10 years”. [ 6 ] The facts as found after trial were that Cpl.

Hodge had received information that Mr. Ben, who had an outstanding warrant, was at a particular residence. Cpl. Hodge went to that location, and saw Mr. Ben at the front of the house. Mr. Ben began to run away from the officer. The officer gave chase. [ 7 ] The officer yelled at the accused to stop and Mr. Ben finally did, about 25 feet away from Cpl. Hodge. Mr. Ben turned toward the officer, with his hands raised and his fists clenched. Mr. Ben appeared to be in a combative or assaultive stance. [ 8 ] The officer drew his taser and yelled for Mr. Ben to get down on the ground.

The accused began walking toward Cpl. Hodge and was closing the distance between them. When Mr. Ben was a distance of about eight feet away from the officer, the officer fired his taser. This had only a momentary effect on the accused. Mr. Ben was trying to break free of the taser wires and Cpl. Hodge was attempting to load a cartridge on his taser. [ 9 ] Mr. Ben picked up a large tree branch, which was about seven feet long, and about three-quarters to two inches in diameter, and began swinging it at the officer.

The branch was a stick that had been made by the accused to be used to hold up a clothesline when clothes were on it. As the branch went by, Cpl. Hodge dropped his taser, backed away, and drew his sidearm. Given the distance between Cpl. Hodge and Mr. Ben, and the length of the stick, the stick would have come very close to Cpl. Hodge when the accused was swinging it. Cpl. Hodge feared for his life at that time. [ 10 ] Cpl. Hodge told Mr. Ben to put down the weapon. The accused complied, then turned around and ran in the same direction he had originally been running. The officer pursued Mr.

Ben briefly, then stopped and called for back-up. [ 11 ] In his victim impact statement, dated March 15, 2011, filed as Exhibit P10 in this hearing, Cpl. Hodge stated “I have never

feared for my own life more than on that day” and “there is not a day that has passed since then that I do not think about my encounter with Mr. Ben”. He also noted that “when my wife heard about this incident she was also effected [ sic ], as everyday I go to work she worries about whether I will come home safe”. [ 12 ] In R. v.

Goforth , 2005 SKCA 12 , Justice Cameron discussed the definition of “violence” with respect to s. 752 of the Code , and stated at paragraph 22 that “to speak of the use of violence against another person, as in paragraph 752(a), is to speak of using physical force against another with intent to hurt, injure or kill another”. Later at paragraph 82, it was noted that the definition of “serious personal injury offence” as found within paragraph 752(

a) of the Code does not imply the use or attempted use of “serious” violence or conduct “seriously” endangering or likely to “seriously” endanger the life or safety of another person. [ 13 ] The decision of R. v. Wright , 2007 SKQB 350 , dealt with whether a charge of possession of a loaded prohibited firearm under s. 95(1) of the Code was a serious personal injury offence in the context of an application for an assessment under s. 752.1(1) of the Code . The accused had entered into a federal half-way house with a sawed off rifle. Mr. Wright was in his room with a female commissionaire for a period of 25 minutes.

At no time did he point the gun at the commissionaire, nor did he use any force or threaten her. Mr. Wright had consumed cocaine on the day of the offence. [ 14 ] At paragraphs 10-11 of Wright , Justice Gunn stated that the fact Mr. Wright had a loaded restricted weapon in the circumstances described satisfied her “that this was conduct endangering or likely to endanger the life or safety of another person”. She indicated it “was also conduct which was likely to inflict severe psychological damage even if it did not actually inflict severe psychological damage in these circumstances”. [ 15 ] In R. v.

Roy , 2008 SKCA 41 , the Court looked at whether the sentencing judge had erred in law in failing to find that Mr. Roy had committed a serious personal injury offence within the meaning of s. 752 of the Code , again in the context of a s. 752.1(1) Code application for assessment. At paragraph 14, the Court referred to paragraph 29 of the written decision of the sentencing judge: [29] ...The Court must also be satisfied that the predicate or index offence is a serious personal injury offence. According to Constable Doetzel the accused was approximately eight feet away when he was cornered by both officers.

There was no attempt to try and strike either officer. Brandishing the bat at Constable Kinzel is technically an assault and the accused has acknowledged that by pleading guilty . Both officers had their batons out and I would assume that each was equipped with standard issue pepper spray and a revolver. No attempt was made by the accused to lunge at either officer . It is certainly possible that the situation could have escalated and the accused could have attacked either or both officers. He did not do this.

I have difficulty accepting that standing eight feet away and holding the bat over his head could, in all the circumstances, “constitute the use or attempted use of violence”. I also do not accept that the accused engaged in conduct endangering or likely to endanger the life or safety of either officer . I have already dismissed the severe psychological component for lack of evidence.

Section 752(

b) also does not apply.

Accordingly I am unable to find that the predicate or index offence is a serious personal injury offence which is a prerequisite to ordering an assessment. [Emphasis added] [ 16 ] In confirming the ruling of the sentencing judge, Justice Jackson, at paragraph 30, stated: I do not think there can be any question that the brandishing of the bat, if we call it that, cannot be “conduct endangering or likely to endanger the life or safety of another person.” While brandishing a weapon like a gun may constitute endangerment, the judge’s conclusion that brandishing a bat, in the face of unknown intent and at a distance of eight feet could not, in and of itself, endanger or likely endanger the life or safety of someone, is a reasonable conclusion. [ 17 ] R. v.

Lebar , 2010 ONCA 220 , is a decision which addresses whether the offence of robbery was a “serious personal injury offence” thus making Mr. Lebar ineligible for a conditional sentence. At paragraph 50, Justice Epstein noted that a “finding that violence was used remains a matter of factual determination for the trial judge.

Whether the criminal conduct amounted to the use or attempted use of violence is a matter relating to the circumstances under which the crime was committed.” Further, at paragraph 51, the Court held that it “was reasonable for the trial judge to find that holding a knife with a five-inch blade to a person’s neck, for the purpose of requiring her to yield to a demand for money, is a use of violence”. [ 18 ] In R. v. Otter , 2010 ABPC 218 , Judge Brown had occasion to consider whether, on the facts before her, the robbery was a “serious personal injury offence”, thus making Mr.

Otter ineligible for a conditional sentence order. In that case, the accused had entered a convenience store, stated “you should open your till; I’m robbing you”, and a short struggle ensued. The store clerk wrestled Mr. Otter to the ground where he was kept until police arrived. [ 19 ] At paragraph 25 of her decision, Judge Brown referred to paragraph 16 of the Alberta Court of Appeal decision of R. v.

Ponticorvo , 2009 ABCA 117 , which noted “We are not saying that every threat with a weapon involves the use or attempted use of violence. For instance, it may be that the act of brandishing a weapon at a person from a distance, with no immediate danger to the victim, does not fall within the phrase, violence or attempted use of violence.” Ultimately, Judge Brown found that, given the brief nature of the interaction between Mr.

Otter and the store clerk, plus the fact the store clerk was unharmed and appeared unperturbed during the events, the accused did not use or attempt to use violence against the clerk. [ 20 ] Paragraph 16 of Ponticorvo also discusses the agreed statement of facts in that decision, which were that Mr. Ponticorvo “swung a knife three times, at a police officer who was in close proximity, forcing him to back away down some stairs”. The assault ended because Mr. Ponticorvo was shot by another officer, “which disabled him from pursuing his goal”.

The Court held that in “the circumstances of this case, the assault with a weapon, involved the use of violence or attempted use of violence” and was “therefore a serious personal injury offence”. [ 21 ] I find that the facts in the decisions of Roy and Otter are distinguishable from those found in this case. In this case, as opposed to Roy , the accused picked up the branch with the intention of using it against the officer. Mr. Ben then swung the weapon at Cpl. Hodge, coming so close to the officer that it caused him to back away and pull his sidearm.

The weapon was of such a size that, as I noted when giving the decision after trial, “there is no doubt that if struck in the head with this object, it could cause serious damage”. Also, as opposed to Otter , the events were of a longer duration, and the victim was affected by the actions of the accused. [ 22 ] In convicting Mr. Ben, I stated “I reject the defence suggestion that this is a low-level assault.

This was a very frightening situation for any peace officer to be in: facing an adult male carrying a weapon and using it in an intimidating way”. [ 23 ] I find this offence is a “serious personal injury offence” as defined by s. 752. Mr. Ben’s actions involved the use of violence. In addition, Mr. Ben’s conduct endangered or was likely to endanger the life or safety of Cpl. Hodge, and his conduct inflicted, or was likely to inflict, severe psychological damage on the officer. Is it within the realm of possibility that Mr.

Ben could be found to be a dangerous offender? [ 24 ] Section 753(1) of the Code sets out the factors for the Court to consider in finding an accused to be a dangerous offender: 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... [ 25 ] The Crown is relying predominately on s. 753(1)(a)(

i) and (ii) in this instance. [ 26 ] Justice Cameron in R. v. Fulton , 2006 SKCA 115 , at paragraph 21 speaks of what the Court must consider at this stage of the proceedings and the test to be applied: ...section 752.1 does not call upon the court to consider whether the offender will probably be found, or is likely to be found, a dangerous

...section 752.1 does not call upon the court to consider whether the offender will probably be found, or is likely to be found, a dangerous or long-term offender. It does no more than call upon the court to consider whether there exist reasonable grounds to believe the offender might be found to be a dangerous or long-term offender; and it does so for no other purpose than that of deciding whether to order an assessment. The word “might” speaks to possibilities: is the prospect of the offender being found to be a dangerous or long- term offender within the realm of possibility or beyond it?... [ 27 ] In R. v.

Peters , 2011 SKQB 2 , at paragraph 17 , Justice Popescul also discussed the test to be applied: It is evident from the precise wording of s. 752.1(1), and jurisprudence that has interpreted this section, that the threshold is low. This Court must consider the totality of the record of evidence and the other information presented in support of the application in order to decide whether there are reasonable grounds to believe the offender might , not will, be found a dangerous or long-term offender.

This would appear to be a burden far less than the criminal burden of proof and even less than the civil burden of proof. In order to require any more at this stage of the proceedings would run the risk that the Court is being asked to make findings on incomplete and imprecise information and without the benefit of the assessment proposed under s. 752.1. Consequently, my task is to consider the prospect of whether the offender being found to be a dangerous or long-term offender is “within the realm of possibility or beyond it”. [ 28 ] Mr. Ben’s criminal record is significant. In

summary, it begins in 1976 and has entries from as recently as January 26, 2011. There are 58 Criminal Code convictions on it. Fifteen of those are for violent offences, six of which relate to peace officers. He was sentenced to 15 and ½ years on these violent offences. In addition, he has violated his mandatory supervision orders on three separate occasions and been recommitted to the Penitentiary and breached a conditional sentence order once, resulting in a termination of the conditional sentence order. [ 29 ] The crimes of violence for which Mr.

Ben has been convicted have involved the use of a weapon on more than one occasion: the robbery with violence in 1979 involved the use of both a bottle and screwdriver, the manslaughter in 1992 involved the use of a 2 x 4, and the present case involved a branch. [ 30 ] Alcohol addiction has been a problem for Mr. Ben for his entire adult life. He commenced drinking when he was approximately 15 years old. He was admitted to the Slim Thorpe Recovery Centre in Lloydminster, for alcohol counselling when he was 16 years old.

His counsellor stated “Brian is aware of what happens to him when he drinks and he wants to change the things he has been doing in the future. He sees his drinking as a serious problem in his life and wants to quit” (Exhibit P4, “Documents re: Slim Thorpe Recovery attendance in 1977”). [ 31 ] At page 6 of the Pre-Sentence Report dated October 10, 1991 (Exhibit P3), the probation officer noted: Brian’s major problem appears to be alcohol. For the first time in his life, Brian sees his abuse as the first stumbling block he must overcome.

He has taken a serious look at his use and abuse and appears committed to learning a “new way”. Brian’s motivation to quit drinking is heightened by his desire to return to school. As well, his wife and child play a major influence. [ 32 ] In the Agreed Statement of Facts (Exhibit P8) with respect to the manslaughter conviction, it is noted that, on the date of the incident of March 21, 1992, “Brian Ben was very intoxicated at the time of the initial offence”. [ 33 ] Mr. Ben’s Institutional

Summary (Exhibit P9) relating to his 1992 conviction for manslaughter indicates that: Mr. Ben was released to Statutory Release on March 21, 1997. His release was suspended on September 26, 1997 after Loon Lake RCMP picked up Ben after he was found consuming alcohol in a beverage room...After a review it was determined that Ben would benefit more in the community than to remain in the institution. In order to help maintain sobriety, he was accepted to the Loon Lake Alcohol/Drug Treatment Centre. The suspension was cancelled and Ben was again released with the condition to attend the Treatment Centre. Mr.

Ben was discharged from the Treatment Centre on December 18, 1997. Unfortunately, Mr. Ben was found to be extremely intoxicated a day later on December 19, 1997. [ 34 ] The Institutional

Summary goes on to say that Mr. Ben’s “Statutory Release was revoked on February 18, 1998. The National Parole Board felt that substance abuse is his primary criminogenic risk factor and any return to its use makes his manageability and risk undue.”

[ 35 ] Finally, the Institutional

Summary states that “Mr. Ben was again released on Statutory Release on July 21, 1999. Due to substance abuse being his primary criminogenic risk factor, the National Parol Board felt that a special condition to abstain from all intoxicants was necessary. He was released to Pelican Narrows, SK. A little more than three months later, Warrants of Apprehension and Suspension were issued due to Mr. Ben consuming alcohol and traveling [ sic ] outside of his travel area”. [ 36 ] A transcript of the sentencing hearing relating to the June 23, 2004, convictions for Theft Under and Uttering Threats was filed (Exhibit P7).

The accused, upon being arrested for vehicle theft, stated “that he had a gun with a bullet in it for the officer’s head”. Defence counsel noted that Mr. Ben had been drinking and doesn’t remember a lot of what took place. At page 6 of the transcript, Judge Fraser stated “The primary goal in this sentencing is individual deterrence, in my opinion. The RCM Police and any police officer is entitled to the full protection of the court as best I can do that, and that expression is to make sure that Brian Ben does not circulate in our society for awhile.” Judge Fraser’s last comment to Mr.

Ben was “Only you can take control of your life, sir.” [ 37 ] Similarly, in the incident before me, Mr. Ben admitted that he had been drinking wine and whiskey for “a couple of hours” before the police officer arrived and when asked if he would say he was pretty intoxicated, he said “Cut, yeah”. He admitted that his memory was pretty shaky due to alcohol consumption. (Trial Transcript, p. 71) [ 38 ] I must decide whether there is evidence of a “pattern” of behaviour in Mr. Ben’s actions to meet the requirements of s. 753(1) (a)(ii) and (ii). In R. v.

Casemore , 2009 SKQB 306 , at paragraph 9 , Justice Ottenbreit discussed what is meant by “pattern”: A “pattern” does not need to equate to similar fact evidence; general similarity is sufficient. There need not be a lengthy history of violence or aggression for a pattern to be found, so long as there are sufficient elements of similarity in the offender’s behaviour. The pattern must contain an element that the dangerous behaviour was not restrained in the past, and there must be a likelihood that the same behaviour in the future will not be restrained and will cause death, injury or severe psychological damage.

Or, alternatively, the pattern must contain aggressive behaviour that demonstrates a substantial degree of indifference to the reasonably foreseeable consequences to the victims of the offences. [ 39 ] Judge Giesbrecht, in R. v. Steppan , 2010 MBPC 9 , discussed what was meant by a “pattern” at paragraph 102: In order to be found a dangerous offender there must be a “pattern” of repetitive or persistent behaviour by the offender under s. 753(1) (a)(

i) or (ii). In determining whether the offender’s behaviour constitutes a relevant pattern the sentencing judge may have regard to past criminal conduct by the offender which involves some degree of violence or endangerment, the criminal record of the accused and psychiatric reports relating to past conduct and future risk assessment. There need not be a lengthy history of violence or aggression for a pattern to be found. [ 40 ] I find that given the number and nature of violent offences on Mr. Ben’s record, and that many of those violent offences involve peace officers and alcohol use, a pattern of behaviour has been established. [ 41 ] Under s. 753(1)(a)(

i) of the Code , the Crown need not prove that the offender will commit acts which will cause injury to other persons in the future, but only that there is a likelihood that the offender will cause such injury in the future ( Steppan , para. 108 ). The best prediction of future behaviour is past behaviour. In looking at Mr. Ben’s past actions, I find there is a likelihood that Mr.

Ben will cause injury in the future. [ 42 ] Under s. 753(1)(a)(ii) of the Code , the Crown must prove a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his behaviour. Again, in looking at Mr. Ben’s past actions, and most notably the facts in this case, it would appear that Mr. Ben does demonstrate such indifference. [ 43 ] The Court of Appeal at paragraph 15 in Roy made reference to the fact that the sentencing judge had found that: there were no reasonable grounds to believe that Mr.

Roy might be found to be either a dangerous offender or a long-term offender in any event. He arrived at this view largely on the basis that he did not believe a sentence of two years or more would be appropriate for the predicate offence, thus —in his view— ruling out the possibility of a long-term offender designation, and therefore, also ruling out the possibility of a dangerous offender designation.

[ 44 ] As previously noted, the Court of Appeal upheld the sentencing judge on the point of whether the offence was a “serious personal injury offence” and as a result, at paragraph 41, Justice Jackson said “...I do not need to consider whether the trial judge erred in his

interpretation of s. 752.1 and his reliance upon a two year threshold before ordering an assessment.” [ 45 ] As the matter of penalty may be relevant, both counsel made submissions before me on the appropriate sentence in this case. The Crown referred to the decision of R. v. Kolarava , 2007 MBPC 66 , in which Judge Preston, at paragraph 41 discussed an unreported decision with respect to assault peace officer: An unreported, but trenchant, decision of my colleague Sidney Lerner, PJ, R. v.

McGinnis , delivered December 4, 2006, is illustrative of the paramount sentencing principles for an assault against a peace officer. In this case, the offender had huge animosity towards the police and, in fact, kicked and slapped the police. He had 67 prior convictions, four of them assaulting peace officers. Judge Lerner highlighted the principles of specific deterrence, general deterrence and denunciation. Mr.

McGinnis was sentenced to three years in jail. [ 46 ] The Crown noted that the charge under s. 270 of the Code , Assault Peace Officer, carries a maximum of five years, while the relatively new offence of s. 270.1 of the Code , Assault Peace Officer with a Weapon, has a maximum of ten years.

She suggested that given the prior record of the accused and the number of convictions with respect to peace officers, a penitentiary sentence is warranted. [ 47 ] Defence counsel referenced paragraph 39 of the Kolarava decision where Judge Preston reviewed the following sentencing decisions: In the Rudderham decision, a drunken young man with a lengthy record for violence broke a police officer’s nose. He was sentenced to two years in jail. In the Jodouin case, a police officer’s leg was broken during the assault. Mr. Jodouin was incarcerated for two years. In the Brooks judgment, the Court sentenced Mr.

Brooks to a four-year jail sentence for a severe and sadistic attack on a police officer. Mr. Brooks had a lengthy and related criminal record. In the Pederson case, the offender was 32 years old, had 50 prior offences, 13 of them violent, and was on parole for robbery at the time he assaulted a police officer. He was sentenced to one year in jail. [ 48 ] Defence counsel submitted that the cases in which an offender was sentenced to a term of two years are ones that involve serious violence.

She suggested that an appropriate sentence would be that of six months in custody. [ 49 ] I find that given the serious nature of this offence, which carries a maximum penalty of 10 years, and taking into account Mr. Ben’s previous record, a sentence of two years or more is possible. Conclusion [ 50 ] Mr. Ben is 50 years old and has a lengthy criminal record, containing numerous convictions for violent offences, some of which involve the use of a weapon. He has committed serious offences against peace officers in the past on seven occasions, including the present matter.

He has an ongoing, unresolved alcohol addiction, which appears to be a contributing factor to his reoffending. [ 51 ] For all these reasons, I find that it is not beyond the realm of possibility that Mr. Ben could be found to be a dangerous offender. I order that an assessment be conducted, as contemplated by s. 752.1 of the Code , for use as evidence in an application under s. 753 or s. 753.1. ______________________________ L. D. Dyck, J