Her Majesty the Queen - v. -, 2014 SKPC 165

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 165 Date: August 21, 2014 Information: 32712328 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Marius Alfred Fontaine Appearing: Jeffrey Lubyk For the Crown Brent Little & Erin Little For the Accused DECISION ON DANGEROUS OFFENDER HEARING M. M. BANIAK , J [ 1 ] Marius Fontaine was convicted of sexual assault contrary to s. 271 of the Criminal Code . The offence date was November 20, 2011. The trial was held on February 10, 2012 and continued on March 8, 2012.

The decision was rendered on April 16, 2012. At that point the Crown advised that it would be seeking an assessment pursuant to s. 752.1 of the Criminal Code . [ 2 ] The Crown obtained the consent of the Attorney General and the matter was set down for a dangerous offender hearing – which hearing was held the week of February 10 – 14, 2014. [ 3 ] Both Crown and defence called witnesses.

[ 4 ] At the conclusion of the hearing, the Crown asked the Court to find Mr. Fontaine to be a dangerous offender, who should be given an indeterminate sentence, while defence argues that he should be declared a long-term offender. In the alternative, defence took the position that if Mr. Fontaine was declared to be a dangerous offender he should be sentenced to a determinate sentence, to be followed by a long-term supervision order.

ISSUES: [ 5 ] Has the Crown proven beyond a reasonable doubt that: 1) The predicate offence of sexual assault contrary to s. 271 of the Criminal Code is a serious personal injury offence; 2) Mr. Fontaine is a dangerous offender within the meaning of s. 753(1) (a)(

i) of the Criminal Code ; 3) If Mr. Fontaine is found to be a dangerous offender, what is the appropriate sentence pursuant to s. 753(4) and (4.1) of the Criminal Code ; and 4) If Mr. Fontaine is declared a long-term offender, what is the appropriate sentence? APPLICABLE LEGISLATION: 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 form 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 reasonable foreseeable consequences to other persons of his or her behaviour, or (iii) any behavior 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 failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.

(1.1) If the court is satisfied that the offence for which the offender is convicted is a primary designated offence for which it would

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

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

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

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

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

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

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

a) and (

b) apply.

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

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

b) impose a sentence for the offence 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. CRIMINAL RECORD: [ 6 ] Mr. Fontaine’s criminal record commenced in 1983, and, before his latest conviction in 2012, consisted of more than forty convictions. It spans everything from breaches of court orders to robberies and assaults (see Appendix A). [ 7 ] He committed four sexual assaults. PERSONAL HISTORY: [ 8 ] Mr. Fontaine was born in 1965 in Ile-a-la-Crosse, Saskatchewan. He is a member of the Clearwater River Dene Nation. [ 9 ] He had a difficult and painful upbringing.

He was one of 18 children. He lacked stability in that he was cared for at different times by his great grandmother, his grandmother and his parents.

[ 10 ] His father was an alcoholic who would beat him on a regular basis. His basic needs were ignored and he received little education. He spoke very little English as a child. [ 11 ] At age nine or ten he was taken to a residential school where he spent the next four years. This was not a happy time. Unable to speak English, and not allowed to speak Dene, he was disciplined often. He indicated that he was subjected to physical abuse. [ 12 ] After his stint in residential school he returned to live with his grandmother.

It does not appear that he attended any more school. [ 13 ] Lacking any direction or supervision, he would roam the streets of LaLoche. He started drinking and fighting with other boys in town. This addiction to alcohol has in large

part contributed to his criminal behaviour – he admits that he was intoxicated during most of his offences. [ 14 ] According to him, everyone drinks in LaLoche. Looking back, it seems that Mr. Fontaine would start drinking as soon as he got out of prison and this in turn would contribute to him committing another offence which would send him back to prison. [ 15 ] He eventually came to realize that LaLoche was not a healthy environment for him. He relocated to Prince Albert and secured employment as a carpenter. According to his employer’s testimony, Mr.

Fontaine is an extremely hard worker who not only exhibits considerable carpentry skills but also takes a great deal of pride in his work. [ 16 ] Not surprisingly, there was a considerable gap in his criminal activity (2007 – 2011). Had he been able to control his alcohol addiction it is possible that he would not have committed the last offence which resulted in this application. EVIDENCE: [ 17 ] The Crown called 6 witnesses; defence called 5 witnesses, including Mr. Fontaine. [ 18 ] The Crown’s main witness was Dr. Shabehram Lohrasbe, a forensic psychiatrist.

Also called was Trina Debler, a six and half year employee with Correctional Services of Canada, for the last two years she was the acting manager of the non-aboriginal correctional programs. Angela Sinclair, who is the acting manager of aboriginal programming and also employed by Correctional Services of Canada. James Gonzo, currently employed with Correctional Services of Canada as a Regional Segregation Oversight Manager stationed at the Regional Headquarters in Saskatoon. During the course of his employment with Correctional Services of Canada, he worked in various roles.

Maureen Zelowsky, a 28 year employee at the Prince Albert Correctional Centre. Her current position is that of a counselling coordinator who is responsible for “placing inmates in programs, granting temporary authorized absences, extended authorized absences, facilitating transfers…” (p. 333-334 transcript); and Lucy O’Brien, a probation officer with the Government of Saskatchewan. [ 19 ] Defence called Dr. Mansfield Mela, a forensic psychiatrist employed by the University of Saskatchewan. He works with individuals who have fetal alcohol spectrum disorder.

He also works with sex offenders and violent offenders at the Regional Psychiatric Centre in Saskatoon. Dr. Terry Nicholaichuk, who holds a Ph. D. in Clinical Psychology with specialty in forensic matters. He is trained as a “learning disability specialist” and has done research: … of evaluating and investigating people for risk for sexual violence and non-sexual violence and treatment.

And I am a co-author on the Violence Risk Scale Sex Offender Version (VRS-SOV), which is – was recently independently rated by an English journal as being probably the best instrument for evaluating a risk for sexual violence in existence so far (p. 637 transcript). [ 20 ] Glen Coombs, a building contractor who often employed individuals from the CTR (Community Training Residence). He first hired Mr. Fontaine in 2006 or 2007. Gioles Gauthier, a journeyman carpenter who employed Mr. Fontaine from time to time when he was building houses or doing major renovations.

The last witness was Marius Fontaine. [ 21 ] I will review the testimony of each witness before proceeding to analyse all of the evidence in the context of this application.

[ 22 ] Dr. Shabehram Lohrasbe prepared a Forensic Assessment Report for these proceedings (dated December 20, 2012) and also testified at the hearing. Dr. Lohrasbe is a forensic psychiatrist who routinely and frequently provides reports and opinion evidence with respect to sexual and violent offenders. Included in his reports and testimony is opinion relating to assessment of risk and the possibility of controlling that risk outside of a custodial facility. [ 23 ] He describes Mr.

Fontaine as an individual who lacked the ability to scrutinize or assess his behaviour or, for that matter, appreciate the consequences of his actions. Mr. Fontaine’s lower than average intellect, combined with his prolonged addiction to alcohol, could be contributing factors. [ 24 ] Dr. Lohrasbe in his report assessed Mr. Fontaine as having an Antisocial Personality Disorder: The history provides ample information to conclude that Mr. Fontaine has a severe and sustained kind of dysfunction known as Antisocial Personality Disorder.

The behavioural diagnosis and (SIC) refers to a pattern of behaviour that are persistently dysfunctional, with repeated law-breaking aggression, recklessness, impulsivity, deceitfulness, irresponsibility and lack of remorse. Like many people with this personality disorder, Mr. Fontaine lacks insight (inward knowledge) and judgment (misapprehension of how his actions impact his life, and those of others). While Mr. Fontaine does have some psychopathic features, such as lack of empathy with his victims, he does not have a full-fledged psychopathic personality.

His violence has largely been impulsive and affective, and he lacks the interpersonal dominance, glibness, superficial charm, and malevolent narcissism that is often very obvious during face-to-face interview with a man who has a full-fledged psychopathic personality disorder. His emotional development is “stuck” at an immature level, his cognitive functioning is limited through ignorance and lack of education, and impulsivity is central to his behavioural history. [ 25 ] According to Dr.

Lohrasbe, individuals with this type of disorder are not able to appreciate the “norms and laws” of society and are not aware of “…what is acceptable and what is not… It is how they function across the board in their relationships” (p. 453 transcript). [ 26 ] As such, Mr. Fontaine does not respect other people’s rights – including sexual rights. So although, according to Dr. Lohrasbe, Mr. Fontaine is not a sexual deviant, his antisocial personality contributes to his sexual misconduct. [ 27 ] Mr.

Fontaine’s abuse of alcohol also likely contributes to his criminal behaviour – not in the sense that it causes it, but in the sense that it reduces any inhibitions that he might otherwise have: “I think the significance of his alcohol use is its relationship with disinhibiting a very impulsive man. It doesn’t take a lot of alcohol to disinhibit people, particularly someone who has got very limited self-control, to begin with, which is the case with Mr. Fontaine” (p. 413 transcript). [ 28 ] Further, according to Dr. Lohrasbe, Mr.

Fontaine, who was assessed earlier as having a grade 2 or 3 literacy level, may not be able to comprehend or appreciate any beneficial treatment program offered to him: … knowing what I know about him, having met him, it’s not surprising to read that Mr. Fontaine does not connect the dots very well. He…if he was annoyed or disgusted about something, he is fully capable of discarding or walking away from what otherwise would be beneficial for him. He does not have the self-knowledge or self-control to understand the consequences of abandoning something that would be useful for him.

He doesn’t integrate that kind of experience very well with the big picture… (p. 413 – 414 transcript). [ 29 ] Unfortunately, from Dr. Lohrasbe’s perspective, Mr. Fontaine’s lack of insight into his personality seriously impairs his ability to learn and benefit from programming and treatment. When asked by the Crown (p. 406 of transcript) what insight is or means, Dr. Lohrasbe answered as follows: … “insight” has many meanings in the mental health context. Used in a lay sense, it could have different meanings, although there is a very large over-lap. The most concrete

interpretation in the mental health context of the word “insight”, refers to an awareness of mental illness, and a need for treatment for that mental illness. So for instance, people with their beliefs are delusional and that they are requiring treatment. So that would be lack of insight into mental illness and the need for treatment. That is not relevant. That form of insight into one’s personality, and into one’s patterns that lead to violence.

So for those of us who have been privileged with stable backgrounds and good educations, it’s almost a natural part of maturity that we develop increasing insights into who we are and how we function and what our vulnerabilities are. We … automatically reflect on things that we have said or done that are hurtful to the people we care about. And we reflect on what one could do differently. That’s insight, insight into who I am, my personality; insight into what I do that hurts people. Mr. Fontaine is drastically lacking in insight into his personality and into his patterns of being hurtful.

I would not expect dramatic improvement, no matter what treatment he takes, for that lack of insight. I don’t think we should expect fundamental change from Mr. Fontaine as he is approaching his 50 th year. He does not have the background, the education, or the

reflectiveness to suggest that that kind of thing is going to happen. [ 30 ] Insofar as future risk to re-offend is concerned, Dr. Lohrasbe is of the opinion (as stated in his report) that Mr. Fontaine is an opportunistic offender – if an opportunity to exploit a situation occurs he will act upon it, especially if under the influence of alcohol. This is equally likely whether the offence is sexual or non-sexual in nature. [ 31 ] He describes Mr. Fontaine as “… a ‘broad spectrum’ violent offender.

In the foreseeable future (barring effective treatment interventions and close supervision), his risk is high for a full range of violent offences.” [ 32 ] Acknowledging that Mr. Fontaine has not had the benefit of any type of treatment in the past, Dr. Lohrasbe was of the view that if treatment is neglected, or unsuccessful, that the prognosis for Mr.

Fontaine “is very grim”. [ 33 ] Conversely, if violent offenders are exposed to programming then quite often their risk to re-offend is reduced: … the practical impact is that when – if you take violent offenders as a group, and you plug them into the available programs, more often than not, we can do good things with them.

We can reduce, not necessarily in an absolute sense, their risk for violence, but we can assist in reducing their frequency and the seriousness and likelihood, ultimately of the risk for violence when they are back in the community (p. 484 transcript). [ 34 ] On balance, it seems to me that Dr. Lohrasbe conceded that if Mr. Fontaine was exposed to varied and appropriate programming he may be manageable in the community. In his opinion, this would not be easy and would require maximum supervision over a lengthy period of time. [ 35 ] Having regard to Mr. Fontaine’s history, Dr.

Lohrasbe was of the view that close supervision in the community may be successful in managing Mr. Fontaine’s risk (p. 581 transcript). This would be particularly true if Mr. Fontaine was exposed to intensive programming (especially the new programming now available) while incarcerated and then allowed to practice these newly-learned skills when released into the community (pp. 598 – 605 transcript). TRINA DEBLER [ 36 ] Ms. Debler is a six and a half year employee with Correctional Services of Canada.

For the last two years she was the acting manager of the non-aboriginal correctional programs. [ 37 ] Her evidence was helpful insofar as it outlined the type of programming available and the length of time within which completion is anticipated. [ 38 ] She testified that programming is voluntary and is available to medium as well as maximum security inmates. According to her, inmates may participate in moderate programming or high-intensity core programming.

If the sentence is a lengthy one, an inmate could complete the high-intensity program and one or more moderate-intensity programs. [ 39 ] In terms of duration, she testified that most high-intensity core programs last six months or more – in the case of sex offenders, eight months is not uncommon. [ 40 ] Moderate programming usually takes three to four months to complete. [ 41 ] Programming to assist inmates with education, life skills and employment are also available. Programming is not mandatory.

Inmates may be suspended or quit on their own, but are not prevented or precluded from re-applying once space becomes available. ANGELA SINCLAIR

[ 42 ] Ms. Sinclair’s job description is similar to that of Ms. Debler, except that she manages the aboriginal correctional programs. She has been employed by Correctional Services of Canada for six and one-half years and was an acting program manager for the last two and one-half years. [ 43 ] As in the case of non-aboriginal inmates, aboriginal inmates are eligible for programming on a voluntary basis. They may quit the programming or be suspended.

Both, maximum and medium security inmates, are eligible for programming. [ 44 ] High-intensity programs take from four to five months to complete, while moderate-intensity programs take from three to four months to complete. The aboriginal programming attempts to focus on the individual’s spiritual and cultural aspects. Elders are present at the sessions and are a valuable resource. [ 45 ] Both programs rely on oral presentations as well as written materials and are usually conducted in a group setting.

Both witnesses agreed that if an inmate had linguistic or literacy challenges he would experience difficulty and benefit less from the programs even if he was to complete them. These types of challenges may also discourage an inmate from signing up for programming or to see the program to its conclusion once in it. JAMES GONZO [ 46 ] Mr. Gonzo is a sixteen year employee of Correctional Services of Canada. He presently works as Regional Segregation Oversight Manager at the Regional Headquarters in Saskatoon.

He is also one of two Prairie Region members of the National Long Term Supervision/Dangerous Offender Working Committee. [ 47 ] Mr. Gonzo testified that inmates who are declared to be dangerous offenders will be subject to the provisions in the Corrections and Conditional Release Act – s. 161 of the said Act deals with the general release conditions. [ 48 ] The parole officers monitor the person’s behaviour and assess his progress. If there is an escalation in the risk, the conditions may be modified to allow for greater supervision and scrutiny of the offender.

Conversely, if an offender is showing progress, he may have his conditions relaxed so as to allow him to operate in a less structured environment. [ 49 ] Mr. Gonzo testified that parole officers have considerable discretion and that they can access various programming and risk- management resources where and when these are deemed appropriate (p. 299 transcript). [ 50 ] Mr. Gonzo agreed with defence counsel that minimum security visitations are important in transitioning the offenders into the community (p. 296 transcript).

He also noted that Prince Albert has parole officers who specialize in supervising offenders who are on long-term supervision orders and who pose a higher risk. MAUREEN ZELOWSKY [ 51 ] Ms. Zelowsky is the counselling coordinator at the Prince Albert Correctional Centre. [ 52 ] She gave a brief historical narrative with respect to programming at the Correctional Centre. According to her, the various programming available in the 1980’s and the 1990’s was less effective than the programs offered today. [ 53 ] Even in 2001, when Mr.

Fontaine was serving a 15 month term, the programming was largely done in a group setting. The participants, in order to benefit, were required to read, write and do assignments (p. 359 transcript). Anyone with skills below a grade 9 level, and with a weak grasp of the English language would be overwhelmed.

[ 54 ] Presently, the level of difficulty has been lowered, or modified, to a grade 5 level. Anyone with a lower grade level comprehension may be assisted by a tutor (p. 360 transcript). [ 55 ] Inmates on remand are not eligible for programming. [ 56 ] With respect to Mr. Fontaine, Ms. Zelowsky describes him as a respectful and well-behaved individual, who, as a low security risk, is housed with the general population. LUCILLE O’BRIEN [ 57 ] Ms. O’Brien was Mr. Fontaine’s probation officer for one year (Feb. 2007 – Feb. 2008). Her overall testimony with respect to Mr. Fontaine was positive.

He was employed and very proud of it. He reported as required. He attended AA meetings and complied with his s. 810 order, except for one alcohol-related breach. She would have conversations with him about things going on in his life and he appeared to relate well to the one-on-one interactions. [ 58 ] Ms. O’Brien believed that Mr. Fontaine’s decision to leave LaLoche and live in Prince Albert was a good one. In addition to being able to access more resources in Prince Albert, he would be separated from the negative peers he associated with in LaLoche. [ 59 ] According to Ms.

O’Brien, a probation officer could tailor a plan to suit the needs of a particular offender. This could include everything from requiring daily reporting to being in touch with the offender’s employer, counsellor or friends. Needless to say, if an offender breaches his conditions, police will be advised and consequences will follow. [ 60 ] Insofar as specific programming is concerned, Ms. O’Brien testified that no sex offender treatment program is available in Prince Albert – although a person could be referred to one-on-one counselling.

There was no indication if this is a common practice in Prince Albert and how readily this resource is available. DR. MANSFIELD MELA [ 61 ] Defence called five witnesses, the first witness called was Dr. Mansfield Mela, a forensic psychiatrist employed by the University of Saskatchewan. He deals with and conducts research on people who have fetal alcohol spectrum disorder. Additionally, he works at the Regional Psychiatric Centre in Saskatoon with sex offenders and violent offenders. [ 62 ] Approximately forty percent of his working time is spent at the Regional Psychiatric Centre (RPC). According to Dr.

Mela’s testimony, the RPC is developing programming to deal with persons who have significant learning disabilities – people who have an educational level of grade 4 or lower or are illiterate (p. 619 transcript). [ 63 ] Dr. Mela testified that he became involved with Mr. Fontaine at the request of Dr. Terry Nicholaichuk, who was concerned about Mr. Fontaine’s cognitive functioning. More specifically, Dr. Nicholaichuk wanted Mr. Fontaine assessed with respect to FASD. [ 64 ] Dr. Mela stated that this test has three categories. He tested Mr. Fontaine for two of those three, namely the weight and height, while Dr.

Nicholaichuk tested Mr. Fontaine for the brain category (p. 621 transcript). [ 65 ] When Mr. Fontaine’s weight and height were examined and compared to the chart “… called a diagnostic grid, he did not score four, which is severe, three which is moderate. He scored two, which is mild, indicating some impact on his weight, his growth in height, based on the exposure… or likely exposure… to maternal drinking during pregnancy” (p. 622 transcript).

[ 66 ] Dr. Mela then proceeded to do facial measurements: I did the facial measurements. For those exposed to alcohol, there are certain characteristic measurements that we are trained to assess for, that gives the rating of that grid, either, one, two, three, or four. Mr. Fontaine’s measurements on what we call the occipital frontal circumference, which is essentially the side of his eye, fall below the Canadian norms for his age, two centimeter division lower than the mean, which is significant. As well, there is a guide called the lip philtrum guide.

There is a picture that is graded compared to this old picture, in terms of the flatness of the bridge of his nose, as well as the thinness of his upper lip. And those scores were significant enough that were very characteristic, and he scored severe (p. 622-3 transcript). [ 67 ] Dr. Mela testified that based on the results of his tests, Dr. Nicholaichuk could then do intelligence testing or the brain score – which would result in the final diagnosis (p. 624 transcript). [ 68 ] During cross-examination, Dr.

Mela stated that the most significant component in terms of behaviour would be the brain score: “… the most significant component, in terms of behaviour abnormality is actually the brain score” (p. 632 transcript). DR. TERRY NICHOLAICHUK [ 69 ] The second witness called by defence was Dr. Terry Nicholaichuk. When asked by defence counsel what education and training he possessed he answered as follows: I’ve got a Ph. D. in Clinical Psychology with a specialist – or a specialty in forensic matters… A Masters of Clinical Psychology.

I’m trained as, sort of, a learning disability specialist… I’m adjunct professor at the University of Saskatchewan. I supervise graduate students and so on in their thesis work… I’ve made a study of evaluating and investigating people for risk for sexual violence and non- sexual violence and treatment.

And I am co-author on the Violence Risk Scale Sex Offender Version, (VRS-SO) which is – was recently independently rated by an English journal as being probably the best instrument for evaluating on risk for sexual violence so far (p. 636-7 transcript). [ 70 ] From 1998 to 2005 he worked for Correctional Services Canada as the national manager of the sex offender programs. After that he returned to the Regional Psychiatric Centre. [ 71 ] Dr. Nicholaichuk prepared a report on Mr. Fontaine dated August 22, 2013. In addition to the assistance he received from Dr.

Mela, he relied on various other sources such as Crown disclosure materials; psychological and psychiatric reports prepared for Mr. Fontaine previously by other professionals, and in person interviews with Mr. Fontaine at the Prince Albert Correctional Centre. According to his testimony, he spent about three hours with Mr. Fontaine (p. 642 transcript). Dr. Nicholaichuk also spoke with Mr. Fontaine’s former employer, Glen Coombs. [ 72 ] Dr, Nicholaichuk described his interview with Mr. Fontaine as follows: … you know, generally, he was very, very pleasant, cooperative.

You know he did the best he could with what I asked him to do. And let’s see here. He presented consistent with what Dr. Lohrasbe had said in his report. He was straightforward. He was not disingenuous. He didn’t display the personality characteristics that one would usually associate with criminal personality. Some people refer to it as psychopathy. I thought he was – like I said in my report – unsophisticated. You know, he doesn’t really get social cues necessarily.

And, you know, I thought that although on occasion his description of his criminal history was somewhat divergent from the record, he was doing the best he could. And I suspect that to some degree he confabulated, which means that he didn’t really recall the time – you know, the events, he tried to, sort of, fill in the blanks that he didn’t remember (p. 643 transcript). [ 73 ] Dr. Nicholaichuk assessed Mr. Fontaine as being fetal alcohol affected – not severely, but significantly (p. 648 transcript). This means that Mr.

Fontaine can function “… not totally, but he can function” (p. 650 transcript). [ 74 ] He tested Mr. Fontaine for his IQ: … his overall IQ was 68, but his verbal IQ or verbal composite score was 52, which would put him in the – well, it’s below the first percentile. So, you know, if anybody is going to, you know, try and teach him how to function by talking to him, it’s not going to work… he needs to be guided and shown what to do (p. 718 transcript).

[ 75 ] Dr. Nicholaichuk agreed with “previous assessments” of Mr. Fontaine (done in 2003 and 2007) which placed his grade function level between grade 1 to 4 level, depending upon the ability tested (p. 654 transcript). [ 76 ] Dr. Nicholaichuk, on more than one occasion, expressed the opinion that Mr. Fontaine lacks the cognitive skills to benefit to any degree from traditional, or even presently offered, institutional programming. He is unable to absorb and then remember what he learned, let alone apply it in a novel setting.

Instead, the emphasis should be on basic skill training “preferably in the community” (p. 656 transcript). Skill training, combined with decent, safe housing, and the supervision of dedicated officers, assisted by understanding employers, would allow Mr. Fontaine to function in the community. [ 77 ] Conversely, if Mr. Fontaine lives in a high crime area, associates with negative peers and consumes alcohol, he is much more likely to commit crimes (p. 665 transcript). [ 78 ] Dr. Nicholaichuk also employed the Violence Risk Scale Sex Offender Version (VRS-SO) methodology or instrument test to Mr.

Fontaine. [ 79 ] Dr. Nicholaichuk described his assessment as follows: …it’s actually the fourth generation of risk assessment instruments. And we are all looking for something that would identify not only level of risk, identify treatment targets, but also be able to provide an indication of whether or not people improved as a result of treatment, or, you know, some other variabilities. Maturation is an important one, as well (p. 668 transcript). [ 80 ] Following the test, Dr. Nicholaichuk scored Mr.

Fontaine as follows: Sexual recidivism 8.4% over three years, and 12.6% over five years (p. 672 transcript), and this score could be lowered with appropriate intervention. [ 81 ] As far as non-sexual violence is concerned, Mr. Fontaine was scored to be “16% over three years, and 27% over five years” (p. 673 transcript). [ 82 ] However, Dr. Nicholaichuk stressed that this test, as various others, relied too much on actuarial and historical information and tended to ignore present reality and the effects of aging.

In his opinion, recidivism rates for men who assaulted females declined drastically after age 50, and “by the age of 60, the recidivism rates for men who assaulted adult females fell to nearly zero (p. 688 transcript). [ 83 ] In Dr. Nicholaichuk’s opinion, the fact that Mr.

Fontaine is illiterate, and that his intellectual disability places him below 98% of other Canadians as far as intellectual ability is concerned, does not increase the likelihood of him re-offending: “intellectual impairment has very low contribution to criminal risk (p. 698 transcript). [ 84 ] Toward the end of his examination-in-chief, defence counsel read a paragraph from Dr. Nicholaichuk’s report: Mr. Fontaine cannot truly be considered a treatment failure, as no treatment appropriate for someone of his limitations has been attempted.

Therefore, the prospect of successful return to the community cannot be ruled out. It has been shown that these individuals can function in the community when provided with the proper guidance. Of course, the effect of mitigating – aging will mitigate the probability of new violence (p. 722-3 transcript). [ 85 ] When asked if he still stands by this opinion, Dr. Nicholaichuk answered that he did (p. 727 transcript). [ 86 ] During cross-examination, Dr. Nicholaichuk was asked to assess Mr.

Fontaine’s risk for recidivism (p. 730-31 transcript): Q: So if I were to ask you specifically, in term of his risk – and if you’re comfortable using this continuum of high, medium or low, just so that it helps us to, I think, compare in terms of the risk assessments with Dr. Lohrasbe, how would you characterize his risk for general offending at this time?

A: Actually, I don’t use those terms for this reason. “High risk”, for some people, could be any risk at all. And, you know, in Dr. Lohrasbe’s report, he uses the SVHR-20… or RSVP 20… and the difficulty with that instrument is, it gives you high, medium and low, but it does not give you probabilities. It doesn’t give you a number. And I don’t think it’s my job to determine whether or not a particular number is, you know – could be categorized as high risk or low risk or medium risk because they are such – such subjective concepts. [ 87 ] Dr.

Nicholaichuk stressed the importance of circumstances and environment on Mr. Fontaine’s risk of re-offending: if he is placed in circumstances where he is exposed to negative peers, poor housing, alcohol, then the likelihood of committing new offences is elevated. If these factors are not present, the risk is lessened (p. 733 transcript). [ 88 ] Dr. Nicholaichuk maintained that programming, as it presently exists will be of little value to Mr. Fontaine due to his cognitive limitations (p. 739 transcript).

On the other hand, a long period with supervision within a structured environment would be greatly beneficial. [ 89 ] Crown then referred Dr. Nicholaichuk to page 5 of his report, which reads as follows: Mr. Fontaine has consistently refused to participate in correctional programs. In addition, he has reportedly failed to abide by the conditions of his supervised release to the community. Although he has attempted outpatient alcohol treatment, he has not been successful.

However, examination of his criminal history indicates that he is – that there has been no escalation with regard to the severity of violence associated with his offence. In fact his criminal convictions for violent offences have not – ordinarily have been characterized by a relatively low level of violence, especially in recent years. [ 90 ] And again to page 8 which reads: Although there is significant likelihood that Mr. Fontaine will commit additional crimes, if he is released, they will most likely be the sort he has often – most often committed in the past.

There have been relatively - they are – these have been relatively low-level, impulsive events, which have been committed while intoxicated. His drinking companions are most likely to be the victims of his violence, and he is likely to be the victim of theirs. The current offence is typical, in that he attempted to assault a sleeping woman with what appears to be a low level of – of associated violence. [ 91 ] Under further questioning, Dr.

Nicholaichuk acknowledged that the victim of the latest predicate offence was not his drinking companion, and that sexual assault is not a low level offence (p. 769 transcript). GLEN COOMBS [ 92 ] Defence next called Glen Coombs. Mr. Coombs is a contractor who employed Mr. Fontaine from time to time for the four years preceding his last offence. [ 93 ] Mr. Coombs testified that Mr. Fontaine is a very good employee who works hard and takes a great deal of pride in his work (p. 793 transcript).

He was satisfied with his overall work performance and would not hesitate to hire him again (p. 801 transcript). [ 94 ] Further, he testified that he would provide transportation for Mr. Fontaine to and from work and assist him with day to day responsibilities such as paying bills, rent, getting groceries and handling money (p. 810-13 transcript). [ 95 ] Mr. Coombs testified that he understood that Mr. Fontaine would have to attend programming and abide by conditions and that, accordingly, he would have to be flexible in order to accommodate Mr. Fontaine’s requirements. GIOLES GAUTHIER

[ 96 ] Mr. Gauthier is a journeyman carpenter. He worked with Mr. Fontaine when the two of them were employed by Mr. Coombs. He also employed Mr. Fontaine when he was doing his own renovation projects. Like Mr. Coombs, Mr. Gauthier was impressed by Mr. Fontaine’s skill and work ethic (p. 846-7 transcript). Mr. Gauthier, a former alcoholic, attends AA meetings regularly, and he indicated that he would encourage Mr. Fontaine to do so as well – even acting as his sponsor. MARIUS FONTAINE [ 97 ] Mr. Fontaine testified that he came from a family of 18 children.

His recollection of his childhood years was cloudy at times, but it does paint a picture of neglect. He would be taken into the “bush” by his parents when they went trapping. When they came back to town he would go stay with his grandmother. His parent’s home was a “party” house. Alcoholism and violence were common. His personal and educational needs were ignored. His exposure to the English language when he was growing up was limited (p. 868 transcript).

It seems he is angry and resentful towards his family (p. 872 transcript). [ 98 ] At the age of nine or ten, he was put in a car by a white person and taken away to a residential school in Ile-a-la-Crosse (p. 876 transcript). His experience at the residential school was not a happy one. He struggled with the English language. Discipline was harsh – “I’d get hit really lots” (p. 877 transcript). [ 99 ] During the three years he spent in residential school he did not receive visitors. When he left, he went back to live with his grandma.

He did not attend school after that (p. 884 transcript). [ 100 ] As a teenager he was involved in many fights with other boys in LaLoche. His father would hit him frequently: “he was always drunk, and he was always looking for trouble. He’s got a bad temper” (p. 889 transcript). [ 101 ] By the age of 17 Mr. Fontaine started drinking and never really stopped. According to him, “there’s nothing there to do in my home town, (p. 892 transcript) so everyone drank.” [ 102 ] His legal troubles started in 1983, and except for a gap between 2007-2011, he has been in and out of jail.

Alcohol consumption has been a huge problem for him and has, in most cases, contributed significantly to his criminal behaviour. [ 103 ] While incarcerated, Mr. Fontaine avoided programming. One of the reasons he gave for avoiding programming for sex offenders – was that he did not want the other prisoners to know what he was jailed for: … in the penitentiary, there’s – there’s lots of programs, things like that. But it’s the – by my – by - by the way – like me I’d go to jail for sex – sex crimes, but you’ve got to hide it.

It’s a very – if I ever got caught, if – if the inmates know about it, probably I would have got killed or things like that (p. 922 transcript). [ 104 ] Another reason given for refusing programming was his illiteracy: I talked to my parole officer in there, which is my case worker. And I – she wants me to take programs, but – sex – sex offender programs. Yeah.

And I told her that about – like, I don’t have – I don’t have – I can’t – I can’t read and write, things like that (p. 924 transcript). [ 105 ] When out of jail, left to his own resources, he would revert to his former lifestyle of drinking which yielded the same predictable results. [ 106 ] His situation improved when he moved from LaLoche to Prince Albert. Although he did not quit drinking altogether, his alcohol consumption declined considerably. He secured employment and developed a good relationship with his probation officer, Ms.

O’Brien. [ 107 ] This stretch of some four or five years was probably the least problematic and happiest in his adult life.

[ 108 ] During his testimony, Mr. Fontaine acknowledged that he has a drinking problem and that he needs help to deal with it. He also testified that he now understands that alcohol makes him angry and results in him getting into trouble (p. 988 transcript). [ 109 ] On the subject of programming, Mr. Fontaine testified that he would now take it as he is better equipped to handle it: Right now, I don’t read that good, but I manage a little bit. I know how to read, and I understand English. I’m not like before, like I couldn’t even speak that good, like, the way I speak right now.

And I understand people, even though – what he’s talking about, even though, - some high words, even though. But – but I know what he is talking about (p. 989 transcript). [ 110 ] During cross-examination, Mr. Fontaine admitted to having had difficulty in abiding by Court imposed conditions and staying sober, but insisted that the situation has changed and that he would be much more successful in terms of controlling his drinking and taking programming in the future (p. 1032 transcript). [ 111 ] In addition to the evidence presented at the hearing, I also reviewed other material made available to me.

This included the Prince Albert Correctional Centre material (2000-2012); Dr. Todd’s psychological reports (2003 & 2006); National Parole Board’s Report (2006); and the Prince Albert Probation Office material (2007 – 2008). ANALYSIS: [ 112 ] The first issue I have to determine is whether the Crown has proven beyond a reasonable doubt that the predicate offence of sexual assault contrary to s. 271 of the Criminal Code is a serious personal injury offence. [ 113 ]

Section 752 under

Part XXIV of the Criminal Code defines sexual assault ( s. 271 ) to be a primary designated offence ( s. 752 (a) (ix)); and a serious personal injury offence ( s. 752 (b)). [ 114 ] Mr. Fontaine was convicted of a serious personal injury offence. [ 115 ] If the first test of s. 753(1) (a) (namely the commission of a serious personal injury offence) has been satisfied, it is then necessary to examine if the other requirements of s. 753(1) (

a) have been established by the Crown. [ 116 ] To satisfy the remaining components of s. 753(1) (a)(i)(ii) and (iii) the Crown has to prove that Mr. Fontaine (

i) has engaged in a “pattern of repetitive behaviour”; (ii) “a pattern of persistent aggressive behaviour”; or (iii) “any behaviour… that is of such brutal nature” that it “constitutes a threat to the life, safety or physical or mental well-being of other persons”. [ 117 ] Mr. Fontaine, in addition to his other offences, committed four sexual assaults. The first conviction was in 1988 and the last one in 2012. This spans a period of 24 years. [ 118 ] It may be argued that the last two sexual assaults may have been less aggressive or violent, but they occurred, and this shows that Mr.

Fontaine continued to engage in a pattern of persistent and aggressive behaviour. [ 119 ] Not surprisingly, defence conceded that this requirement of s. 753(1) (

a) has been met. [ 120 ] Where defence diverges from the Crown’s position is with respect to s. 753(1) (b). [ 121 ] Subsection (

b) reads as follows:

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. [ 122 ] Defence submits that the Crown has not proven beyond a reasonable doubt that Mr.

Fontaine demonstrates “a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his sexual impulses.” [ 123 ] Defence points to the experts’ testimony, wherein both Dr. Lohrasbe and Dr. Nicholaichuk testified that if Mr. Fontaine would abstain from alcohol and not associate with negative peers that his risk of re-offending would decrease considerably. [ 124 ] Defence also argues that the Court should give greater weight to Mr. Fontaine’s recent history of criminal behaviour rather than assessing his risk based on his entire history.

If this approach is taken, and if Dr. Nicholaichuk’s opinion that Mr. Fontaine’s likelihood to re-offend will decrease with age, then he is not likely to pose a risk in the community. [ 125 ] Crown, for its part, submits that Mr. Fontaine’s overall record cannot be ignored. He has, in the past, offended against both men and women. Alcohol has nearly always been a factor. Many of his offences are characterized by anger and violence. Dr. Lohrasbe characterized his criminal record as follows: It’s obviously lengthy, and it’s broad, in the sense that he’s not a specialist.

He’s – his predicate offences, obviously sexual in nature, but as I’ve explained in my report, I don’t regard him as primarily what one would call a sexually deviant offender. He’s just an antisocial man who, as part of his anti-sociality, will take what he can get. And sometimes that’s a material thing. Sometimes that’s expressing his anger towards someone. And sometimes it’s meeting a sexual desire. So it’s – he’s a broad-spectrum offender (p. 390-1 transcript). [ 126 ] The Crown argues that Mr. Fontaine has failed to curb his impulses.

This resulted in the latest conviction for sexual assault, which was similar in nature to his previous one – namely an assault on a sleeping woman. [ 127 ] The Crown concludes that its onus is to only establish beyond a reasonable doubt that there is a likelihood that the offender will fail to restrain his behaviour in the future. Based on the totality of the evidence, it is clear, according to the Crown that Mr. Fontaine is a “threat to the life, safety or physical or mental well-being of other persons” in the future.

His inability to control his impulses creates a real risk that he will offend, especially in a sexual manner. As such, therefore, Mr. Fontaine should be found a dangerous offender. [ 128 ] Considering all of the evidence before me, I find that Mr. Fontaine is a “threat to the life, safety or physical or mental well- being of other persons.” Throughout his adult life he has shown an inability to control his impulses. He persisted in a pattern of repetitive behaviour which resulted in a number of assaults, including four sexual assaults.

He has, for the most part, refused to participate in programming while incarcerated. The expert testimony suggested that if Mr. Fontaine is able to eliminate the risk factors identified then he poses minimal risk to the community. This opinion, however, is subject to many qualifications in relation to such matters as whether Mr.

Fontaine’s advancing age would reduce his risk to re-offend; whether gainful employment under the guidance of a responsible and understanding employer would focus his attention on work; whether access to decent housing; and whether avoidance of negative peers or relationships and supervision by dedicated professionals would substantially reduce his risk of recidivism. [ 129 ] Completion of suitable programming, skills training and careful supervision should yield tangible benefits in due course. But these will take time and it is unrealistic to expect that Mr.

Fontaine’s risk is controllable if released into the community in the near future. [ 130 ] For his part, Mr. Fontaine attributed his criminality to his use of alcohol, his unfortunate choice of partners, his association with negative peers, his difficult childhood, but almost nothing to his own bad choices and irresponsible behaviour. His inability to analyse his actions and realize that they are hurtful and dangerous to his victims is something that needs to be addressed through appropriate programming. [ 131 ] I am satisfied that the Crown has proven all of the elements of s. 753(1) (

a) and (

b) and, accordingly I find that Mr. Fontaine is a dangerous offender.

[132] Under section 753(4) of the Criminal Code, if the Court finds an offender to be a dangerous offender, it shall: (

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

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

c) impose a sentence for the offence for which the offender has been convicted. [133] Section 753(4.1) reads as follows: The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adducedduring the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(

b) or (

c) willadequately protect the public against the commission by the offender of murder or a serious personal injury offence. [134] The starting point, therefore, is to impose an indeterminate sentence, unless based on the totality of the evidence presented atthe dangerous offender hearing, the Court is satisfied that a sentence pursuant to paragraph 4(

b) or (

c) will adequately protect the publicagainst the commission by the offender of murder or a serious personal injury offence. (R. v. D. (C.J.), 2012 SKQB 198.) [135] Prior to the amendments to

Part XXIV of the Code in 2008, the test was “is there a reasonable possibility of eventual control ofthe risk in the community” (emphasis added). After the amendments, the test now is whether “…there is a reasonable expectation that alesser measure under paragraph 4(

b) or (

c) will adequately protect the public against the commission by the offender of murder or aserious personal injury offence.” [136] There seems little doubt that the post 2008 test is more onerous, but, in my view, reasonable expectation is not synonymous witha guarantee that Mr. Fontaine will never re-offend. Moreover, even if he were to re-offend, the primary consideration is that the publicbe adequately protected against him committing murder or a serious personal injury offence.

Presumably, an offence not falling into theaforementioned categories is less concerning. [137] In the same vein, I believe that an indeterminate sentence should be reserved only for the most dangerous offenders. Whetherpre or post 2008 amendments, the dangerous offender legislation was primarily designed to protect the public. If the public canadequately be protected without the imposition of an indeterminate sentence that approach is preferable: Indeterminate detention under the dangerous offender regime is warranted only insofar as it actually serves the purpose of protectingthe public.

There may be circumstances in which the offender meets the statutory criteria for a dangerous offender designation but thegoal of protecting the public can be achieved without indeterminate detention. (R. v. Johnson, 2003 SCC 46 , 2003 S.C.C. 46 atpara. 20.) [138] Moreover, sentencing of dangerous offenders still has to adhere to the sentencing principles set out in ss. 718 to 718.2 of theCriminal Code, which then, by virtue of s. 718.2(

e) involves taking into account the Gladue factors. [139] The sentencing principles favour the imposition of a lesser sentence if such a sentence can achieve the same objectives as amore restrictive sentence would. [140] And finally, the issue of sentencing aboriginal offenders in the context of a dangerous offender hearing was considered by ourCourt of Appeal in Montgrand v. R. (2014 SKCA 31): [16] The principles espoused in R. v. Gladue, [1999] 15 CR 688, and R. v. Ipeelee (2012 SCC 13) are relevant in a

Part XXIV proceeding(see R. v. Standingwater, 2013 SKCA 78, at paras. 49-53; R. v. Lemaigre, 2004 SKCA 125, at paras. 39-40; and R. v. Ewenin, 2013SKCA 50; but the nature of the determination called for under s. 753.1(1)(

b) of the Criminal Code remains unaffected by the directionsof the Court in R. v. Gladue and R. v. Ipeelee. This means a sentencing judge must still assess the risk posed by the offender in thecommunity to determine whether, and the evidence, there is a reasonable possibility that the risk might be controlled in the community. It is in the assessment of the prospects of controlling the risk of re-offending in the community that the Gladue factors will fall to beconsidered by the sentencing judge. At this point, the sentencing judge must take into account the aboriginal status of the offender for

the purpose of determining whether institutional and community-based programs intended to rehabilitate the offender can be reasonably expected to mitigate the substantial risk of re-offending posed by the offender such that it might be controlled in the community. In this context, Gladue considerations are undoubtedly relevant if they serve to improve the prospects of successfully managing the risk posed by the aboriginal offender in the community. [17] In practical terms, Gladue considerations might manifest in a

Part XXIV proceeding as evidence of aboriginal-focused means aimed at mitigating the environmental, psychological or other circumstances which often serve to aggravate the risk of re-offending posed by an offender, or which otherwise address the rehabilitation and reintegration of the offender into society. Because of this, it will usually be in the interests of the aboriginal offender, when faced under

Part XXIV proceedings, to seek out and adduce evidence of the nature, suitability and efficiency of any available aboriginal-based and non-aboriginal based programming which might enhance the cogency of a submission that the offender’s risk might be eventually controlled in the community. The Crown has its own responsibilities in this regard to ensure that the evidentiary record presented to the sentencing judge is complete. [ 141 ] Having regard to the above-mentioned factors, the next step to consider is whether Mr.

Fontaine is treatable at all, or treatable to such an extent as to make it feasible to release him into the community without endangering the public. Obviously, if the evidence was such that Mr. Fontaine was not treatable, then he would be subject to an indeterminate sentence. [ 142 ] The evidence from this hearing, falls short of such determination. Dr. Nicholaichuk testified that Mr. Fontaine has certain strengths that could be developed and which would then significantly reduce the risk of him re-offending. He pointed to Mr. Fontaine’s skill as an accomplished carpenter with a very strong work ethic.

If he could secure immediate employment upon his release – which employment was promised by Mr. Coombs – this would go a long way towards him securing good housing and associating with positive peers (his co-workers). [ 143 ] Further, if an employer, such as Mr. Coombs, understands Mr. Fontaine’s limitations, he could assist him with transportation to and from work and provide advice and assistance with matters such as money management. [ 144 ] Both, Dr. Nicholaichuk and Dr. Lohrasbe, testified that Mr. Fontaine’s risk to re-offend would be reduced significantly if he could control his alcohol use.

They both testified that Mr. Fontaine would benefit greatly from a supervised environment. This opinion is supported by the evidence of the probation officer Lucy O’Brien, who testified during the year that she was Mr. Fontaine’s supervisor he did very well. He had a couple of slip ups with alcohol use but he owned up to those and got back on track. She did not find him to be difficult in terms of being disrespectful, manipulative or dishonest. [ 145 ] Both, Dr. Nicholaichuk and Dr. Lohrasbe, testified that Mr. Fontaine had not taken any programming while serving his federal sentences.

Therefore, issues regarding sex-offending, substance abuse, anger management and violence were not addressed. [ 146 ] While the two psychiatrists differed somewhat on the value of in-prison programming for Mr. Fontaine, (Dr. Nicholaichuk is of the view that they would have limited value as “presently constituted” and that skills training and development in the community are much more useful; where Dr. Lohrasbe believes that Mr.

Fontaine’s participation in the comprehensive violent offender, sexual offender and substance abuse programming will assist him to cope in the community) what is clear is that these programs are available in the federal penal institutions and Mr. Fontaine has indicated during his testimony that he would now participate in such programming. [ 147 ] His change in attitude is due in part to his realization that his life has not gone well – “I never did nothing but go to jail all the time” (p. 892 transcript).

He also testified that his comprehension of the English language is better and that he now understands that many of his problems are due to his use of alcohol. [ 148 ] Another important consideration is that Mr. Fontaine seems to have come to the realization that some people can be trusted and are prepared to help him. This, I believe, is due in part to his positive experience with Mr. Coombs and Ms. O’Brien. [ 149 ] Finally, there seems to be agreement between experts that Mr. Fontaine’s risk to resort to violence will decline as he grows older. [ 150 ] The Crown argues that Mr.

Fontaine is an offender who has refused to participate in programming in the past; that he lacks insight into his actions; and that any prospects for him being manageable in the community to such an extent as to protect the public

against the commission of a serious personal injury offence is unrealistic having regard to his past history. In other words, the gamble is simply not worth it. [ 151 ] When considering the Crown’s position, it is essential to scrutinize the evidence presented at the hearing itself. While it is true that the criminal record, and the documented history of Mr. Fontaine over that last quarter century is important and part of the evidence, great deference needs to be given to the evidence presented at the hearing.

Is the cumulative effect of all the evidence adduced such that only an indeterminate sentence is appropriate? [ 152 ] It is my finding that the evidence falls short of such a determination. Even the Crown’s own witnesses were not prepared to characterize Mr. Fontaine as someone who could not be controllable in the community. [ 153 ] Mr. Gonzo testified that many offenders are assisted to transition into the community by parole officers who have a great deal of influence over their behaviour. [ 154 ] Ms. O’Brien testified that she had a great deal of success in supervising and managing Mr.

Fontaine in the community. [ 155 ] Dr. Lohrasbe, the Crown’s main witness, while less optimistic about Mr. Fontaine’s chance in the community than Dr. Nicholaichuk, was, nonetheless, of the opinion that Mr. Fontaine could be managed in the community especially if he was subject to a long supervision order. His odds would improve even more, according to Dr. Lohrasbe, if he completed programming before being released into the community. [ 156 ] Finally, I believe that it is helpful to consider other court’s decisions on the issue of imposing an indeterminate sentence. [ 157 ] In R. v.

Downs ( 2012 SKQB 101 ) the offender had been convicted of four sexual assaults. Mr. Justice Mills designated Mr. Downs a dangerous offender but declined to sentence him to an indeterminate sentence and, instead, imposed a sentence of seven and one half years in a penitentiary to be followed by an eight year long-term supervision order. He addressed the issues as follows: [9] … the words ‘eventual control’ suggests that there is a fine line upon which the offender’s future activities can be measured.

It suggests that there is a process that society is prepared to accept to take place over time that will allow for the reintegration of the offender into the community. And… [12] The concept of eventual control has been replaced by the concept of adequate protection of the public. I do not equate the words ‘adequately protect the public’ as a virtual guarantee that the offender would not commit in the future an offence described.

The use of the words ‘satisfied’, ‘reasonable expectation’ and ‘adequately protect the public’ all suggest that Parliament has not mandated a notion of absolute safety to the public in this sentencing consideration. [ 158 ] Recently, the Supreme Court had to consider an appeal where the issue was whether the trial judge erred in designating an offender to be a dangerous offender without considering a long-term offender designation. New evidence was also sought to be adduced.

While this case does not address what an appropriate sentence is in a case similar to this one, it does suggest that an indeterminate sentence “… is preventative detention in its clearest and most extreme form.” ( R. v. Sipos , 2014 SCC 47 , para. [19] ) [ 159 ] It appears that the Supreme Court is saying that a dangerous offender designation with an indeterminate sentence is appropriate but only in rare cases and reserved for only those offenders who cannot realistically be controlled in the community.

It should not automatically follow that an offender who is designated as a dangerous offender should always, or nearly always, be given an indeterminate sentence. [ 160 ] This is in keeping with previous decisions which held that an indeterminate sentence is proper for only the most serious of cases and should be imposed sparingly: R. v. Merasty , 2011 SKPC 109 ; R. v. Lemaigre, 2004 SKCA 125 ; R. v. Daniels, 2011 SKCA 67 .

[ 161 ] Where indeterminate sentences were imposed, invariably the offender was deemed to be a very high risk to re-offend violently, and where there was no reasonable prospect of control in the community: R. v. Bunn , 2012 SKQB 397 ; R. v. Lemaigre , 2014 SKPC 108 ; R. v. Severight , 2014 ABCA 25 ; R. v. Montgrand , 2014 SKCA 31 . [ 162 ] In the instant case, both Dr. Lohrasbe and Dr. Nicholaichuk believed that Mr. Fontaine would require time to obtain the skills necessary to function in the community. Dr.

Lohrasbe was of the opinion that programming while in prison followed by skills training would be more effective than just skills training in the community as advocated by Dr. Nicholaichuk. However, both agreed that through a combination of programming, skills training and supervision Mr. Fontaine could function in the community. [ 163 ] Ms. Zelowsky, the counselling coordinator at the Prince Albert Correctional Centre, described Mr. Fontaine as a pleasant, respectful and well-behaved inmate who, as a low security risk, was housed in with the general population. [ 164 ] Mr. Fontaine has indicated to Dr.

Lohrasbe and Dr. Nicholaichuk, as well as to the Court, that he now wants to take programming. He believes he is better equipped now in terms of skill and attitude to benefit from the various programs offered in prison. [ 165 ] Both of the experts are of the opinion that Mr. Fontaine, despite his learning disabilities, can learn. Failure to take programming in the past is not an indicator that it cannot succeed in the future.

Both the experts cautioned the Court not to conclude that treatment in the future will not work because he never had any in the past. [ 166 ] Therefore, a determinate sentence followed by a long-term supervision order will adequately protect society from Mr. Fontaine and is, accordingly, the appropriate sentence in this case. SENTENCE: [ 167 ] Mr. Fontaine has been in custody since November 20, 2011. This amounts to 33 months. Allowing remand credit at 1.5 to 1, he is deemed to have served 50 months in pre-sentence custody. [ 168 ] Having regard to Mr.

Fontaine’s criminal record, as well as the fact that this is his fourth sexual assault conviction, the appropriate determinate sentence for the offence for which he is being sentenced today is 8 years or 96 months. Subtracting the 50 months he has been credited for pre-sentence custody, he is required to serve an additional 46 months. Upon his release, he will be subject to an eight year long-term supervision order. [ 169 ] In addition to the sentence imposed, I make the following orders: 1) Pursuant to s. 109 of the Criminal Code , Mr.

Fontaine is prohibited from possessing any firearms, crossbows, prohibited weapons, restricted weapons, prohibited device, ammunition, prohibited ammunition or explosive substance for life; 2) Pursuant to s. 487.051 of the Criminal Code , authority is given for the taking of a bodily substance from Mr. Fontaine for the purpose of DNA analysis; 3) Pursuant to s. 490.012 of the Criminal Code , Mr. Fontaine is ordered to comply with the Sex Offender Information Registration Act , for life; and 4) Pursuant to s. 760 of the Criminal Code , the transcript of the testimony given by the witnesses; the reports of Drs.

Lohrasbe and Nicholaichuk; together with the reasons of this court, be provided to Correctional Services of Canada. [ 170 ] Having regard to Mr. Fontaine’s circumstances, I waive any applicable surcharges.

[ 171 ] Dated this 21 st day of August, A.D. 2014, at the City of Prince Albert, in the Province of Saskatchewan. _____________________ M. M. Baniak, J