Her Majesty the Queen - v. -, 2016 SKPC 131

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 131 Date: October 3, 2016 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Joseph Anthony Slippery Appearing: Roger DeCorby For the Crown Kevin Hill For Mr. Slippery DECISION A.M. CRUGNALE-REID , J Introduction [ 1 ] On August 6, 2013, Joseph Anthony Slippery was convicted of an assault causing bodily harm pursuant to s. 267 (

b) of the Criminal Code (the predicate offence). [ 2 ] Sentencing was adjourned and the Crown applied for an assessment order under s. 752.1 of the Criminal Code , alleging that the assault causing bodily harm was a serious personal injury offence and that there were reasonable and probable grounds to believe that Mr. Slippery might be found to be a dangerous offender. The Crown recommended Dr. Shabeharam Lohrasbe for the assessment and the defence consented. The Crown’s application was granted. Dr. Lohrasbe conducted the assessment and provided a written assessment report dated June 5, 2014.

[ 3 ] Subsequently on September 24, 2014, Mr. Slippery entered a guilty plea to a further charge under s. 267 (

b) of the Criminal Code for an assault causing bodily harm on a fellow inmate, which occurred on June 7, 2014, while he was on remand pending these proceedings. [ 4 ] As a result of this development, an update to the assessment report was provided by Dr. Lohrasbe dated December 6, 2014. [ 5 ] At the hearing, the Crown presented 12 witnesses, including Dr. Lohrasbe, who was qualified as an expert forensic psychiatrist in the area of violent offenders risk assessment. Some of the witnesses described programming available for incarcerated individuals and for individuals subject to a long-term supervision order.

Witnesses also testified as to Mr. Slippery’s progress while incarcerated and when in the community. A Gladue report was filed by the defence. Mr. Slippery testified on his own behalf. [ 6 ] The Crown subsequently applied for permission to re-open its case because Mr. Slippery was found to have consumed crystal meth at the Regina Provincial Correctional Center (RPCC) on February 15, 2016. The application was granted and evidence was heard in relation to this incident. [ 7 ] The Crown takes the position that Mr.

Slippery should be designated as a dangerous offender pursuant to s. 753 of the Criminal Code and sentenced to an indeterminate period of custody. In the alternative, if an indeterminate period of custody is not imposed, the Crown submits that a determinate period of custody ought to be imposed in the range of eight to nine years for the predicate offence, four years consecutive for the subsequent assault causing bodily harm, followed by a 10 year long-term supervision order pursuant to s. 753(4) (

b) of the Criminal Code . [ 8 ] Defence counsel concedes that the criteria for a dangerous offender designation have been met in this case and does not contest the making of the designation. The defence, however, contests the imposition of an indeterminate jail sentence and submits that a determinate jail sentence of three years is appropriate after consideration of remand time, followed by an eight to 10 year long-term supervision order pursuant to s. 753(4) (

b) of the Criminal Code . Factual Background [ 9 ] Joseph Anthony Slippery was born on December 27, 1979, in Regina and is now 36 years old. He is of First Nations heritage and is registered with the Siksika First Nation through his mother. He has ties to the Fishing Lake First Nation through his father. [ 10 ] Mr. Slippery has had a very troubled and sad past. His mother died from cirrhosis of the liver when he was 11 and his elderly father, who lives on the Fishing Lake First Nation, has a long history of struggling with alcohol. As a child, Mr.

Slippery and his siblings witnessed family violence and alcohol and drug abuse in the home. Mr. Slippery experienced parental neglect and was physically abused by his father on a regular basis. As a result, he never felt safe, close, or protected by his parents. [ 11 ] He also experienced transience and instability during childhood. Mr. Slippery lived with his parents until they separated when he was five or six years old. He then lived with his grandfather for approximately two years, after which he moved back to his father’s home and lived with his father and his stepmother for about three years.

At age 11 he was apprehended by Social Services and shuffled between foster and group homes. The group homes appeared to have had a stabilizing influence on Mr. Slippery. He eventually took up residence with his stepbrother at age 16 for a period of time. Mr. Slippery told the Gladue report writer that in his youth he had felt more at home on the street than in any of his numerous foster homes. [ 12 ] Mr. Slippery was sexually assaulted twice in his childhood. The first sexual assault happened when he was about seven years old. The perpetrator was a teenager. The second sexual assault happened while Mr.

Slippery attended the Muskowegan Residential School in 1989. He was at the school for some three weeks before another student sexually assaulted him, after which he ran away from the school. Due to a lack of trust in his parents, he did not disclose the incidents of sexual abuse to them; he just felt shame. As he transitioned from childhood to adulthood, the shame shifted to anger. [ 13 ] Mr. Slippery’s only full sibling, Faith, whom he describes as “my best friend”, froze to death while intoxicated at age 19, which was another very traumatic experience for Mr. Slippery. [ 14 ] Mr.

Slippery has struggled with substance abuse from early on in his life. He first became intoxicated by alcohol when he was nine years old. By his early teens, he was drinking regularly, often together with his father. He also consumed inhalants, non-prescribed analgesics, marijuana and methadone at times. [ 15 ] During his current incarceration, Mr. Slippery acknowledged using methadone and marijuana in 2013. He also consumed a large amount of crystal meth on February 15, 2016, in what he described as a suicide attempt.

He has a prior history of self-harm and making suicidal threats, starting from age 11 or 12, and on at least one occasion thereafter. [ 16 ] Reviewing his education, Mr. Slippery reported to Dr. Lohrasbe that his schooling was negatively influenced by the atmosphere at home, frequent moves, and substance abuse. Although he did relatively well in elementary school, by grade seven his education was in turmoil and he dropped out of school in grade eight, following an encounter with a teacher whom he regarded as mean and racist. Mr. Slippery has since upgraded his education. [ 17 ] According to Mr.

Slippery, he joined the Native Syndicate (NS) street gang when he was 17 years old. At the age of 20, he switched over to the Indian Posse (IP) gang, which he left in 2003 in the wake of a gang-related incident where he was shot in the face with a shotgun by a rival gang member and not supported by his fellow gang members. This incident occurred at a party after Mr. Slippery asked those present to take off their gang colors and fighting broke out. Mr. Slippery’s fantasy of a gang as a substitute for a supportive and protective family was shattered at this point. [ 18 ] Mr.

Slippery has limited job skills and work history, consisting of odd jobs and short periods of employment with community organizations. He held one of the latter jobs sometime before March 2005, with an organization called Rainbow Youth Centre, working

on youth projects, mentoring children and developing artistic skills. Another period was for four months working with Street Culture Kids Project in Regina in 2007, doing paintings, giving anti-gang talks and working at the canteen. He had also gained a role in a movie production in July 2007, but it never came to fruition due to his relapsing and reoffending. In 2010 he was rehired for a time by Street Culture Kids Project, where he mentored youth, assisted in cultural projects and honed his skills as a tattoo artist. [ 19 ] Mr.

Slippery has three biological daughters with his spouse Carolyn Redwood and three stepchildren. The daughters were 13, 11, and eight years old at the time of Dr. Lohrasbe’s report. [ 20 ] Mr. Slippery feels a strong attachment to the children. Starting in 2002, through until March 2005, he participated with Ms. Redwood in a comprehensive parenting program, during which he reportedly performed well. In the time he was involved in parenting, he was described as a good parent by community sources. [ 21 ] Mr. Slippery’s relationship with Ms. Redwood was a fairly long-standing, but unstable one.

It was described by some sources as toxic and Ms. Redwood, herself, had her own difficulties with substance abuse. [ 22 ] Ongoing conflicts occurred in the relationship. Although there are no convictions for domestic violence, Mr. Slippery has acknowledged such behaviour and took programming for it in the fall of 2006, while incarcerated. According to Dr. Lohrasbe, he has expressed a great deal of shame about such behaviour and spontaneously made the connection to his childhood experience of witnessing spousal abuse by his father . [ 23 ] The status of the relationship with Ms. Redwood is that they are separated.

During his incarceration, Mr. Slippery has developed a new relationship with Dixie Huber. He has support from her and from other individuals in the community, including a youth worker who has known him for over 10 years, assisted him with finding employment in 2007, and is prepared to assist again. [ 24 ] According to Dr. Lohrasbe, Mr. Slippery is placing a greater emphasis on spirituality during the current period of incarceration, which he says has given him hope and strength. Although he has experienced a mix of Christian and Aboriginal traditions, his current focus is on the Bible and Christianity.

Criminal History [ 25 ] Mr. Slippery has been involved in the criminal justice system since his early youth. He was first convicted of a criminal offence at the age of 12 and has since accumulated a total of 42 criminal convictions. Sixteen of those were for violent offences, nine of which were committed before age 18. The violent offences committed while under 18 are assault (1994), aggravated assault (1995), armed robberies, kidnappings and attempted armed robbery (1997), and assault causing bodily harm (1997).

The violent offences committed while over 18 are assault with a weapon (2001), assault (2002), aggravated assault (2006), assault with a weapon and assault causing bodily harm (2007), the predicate offence of assault causing bodily harm (2013), and assault causing bodily harm (2014). [ 26 ] Mr. Slippery has been sentenced to three penitentiary terms for violent offences. His offences involved a variety of victims, relatives, acquaintances and members of the public.

On some occasions weapons, such as a knife or other sharpened instrument or a metal bar were used. [ 27 ] In addition to the violent offences mentioned, he has also been convicted of other general offences, consisting of five property offences, four mischief offences, three impaired operations of motor vehicle offences, 10 breaches of court orders, and one escape lawful custody. All of these were committed while under age 18, except for four breaches, and a mischief.

The entering into of a peace bond occurred when he was an adult. [ 28 ] The circumstances of the violent offences are as follows: Youth Offences [ 29 ] On April 20, 1994, at age 14 he committed an assault on Debbie Ananas for which he received three months open custody and 10 months probation. [ 30 ] On the day of the offence, the victim left her residence in Saskatoon in order to get change to do laundry. Mr. Slippery ran after Ms. Ananas, yelling at her that he wanted to “kill her spirit” and that she should just let him kill it. Ms. Ananas ran into traffic on the street to try and stop someone for help. Mr.

Slippery chased her around a couple of vehicles, waving a long-bladed hunting knife at her. People from the victim’s apartment building were yelling at Mr. Slippery, who yelled back “let me kill the white girl with the black glasses”. Ms. Ananas eventually ran to a pay phone and called the police who arrested Mr. Slippery. Pursuant to the pre-disposition report, Mr. Slippery had “blacked out” from alcohol consumption before committing the offence. He did not recall anything of the offence and woke up in the police cells the next morning. Mr.

Slippery was angry at himself for his behaviour and remorseful for his actions. [ 31 ] The next violent offence was committed on October 26, 1995, when he was 15 years old. It was an aggravated assault on Ivan Lonechild, for which he received three months secure custody. [ 32 ] On the day of this offence, Mr. Slippery and Ivan Lonechild were drinking at Mr. Slippery’s residence on the Fishing Lake First Nation reserve near Kylemore, Saskatchewan. Mr. Slippery and the victim began arguing and started fighting. After the fight had been broken up by other people in the residence, Mr.

Slippery went outside onto the back deck and was slamming things around. Mr. Slippery subsequently came inside again and another argument ensued, during which he grabbed two pairs of scissors and yelled “I’m going to kill him”. He then went after Mr. Lonechild and stabbed him in the back of the head. The fight subsequently ended and Mr. Slippery was arrested shortly thereafter. [ 33 ] The next violent offence was committed on December 29, 1996, when he was 17 years old. It was an armed robbery, for which he received two years secure custody concurrent to the sentence he received for the aggravated assault.

On this occasion, Mr.

Slippery, partially masked and intoxicated, robbed a Mac’s convenience store, brandishing a knife and crowbar. He took some cash and packages of cigarettes. [ 34 ] Less than a month later, on January 4, 1997, he attempted to commit armed robbery on Carol Golden. He received one year of secure custody, concurrent to the other sentences he was serving. On this occasion, Mr. Slippery rang the doorbell at a residence in the Kuroki Hotel bar. The victim went to a different door in the residence to see who was there. Mr. Slippery asked Ms. Golden if the bar was open and started walking towards her.

When he arrived at the door that the victim was holding open, he grabbed the door and jerked it open, holding a hunting knife in his right hand. Ms. Golden grabbed the door with both hands and managed to slam it shut. Mr. Slippery fled the scene. [ 35 ] Less than two weeks later, on January 15, 1997, at age 17, Mr. Slippery committed an armed robbery and kidnapping on Mary Corby, Gloria Nelson and Cheryl Straker. He received three years secure custody on each charge, concurrent. On this occasion, Mr. Slippery, along with three adult individuals, went to Elfros, Saskatchewan. Mr.

Slippery entered the local Credit Union carrying a tire iron and demanded cash from the employees, threatening them with bodily harm. After taking the money, he forced two female employees and an elderly female customer to go with him when he exited the Credit Union, threatening to bash their heads in if they did not cooperate. Once Mr. Slippery and the hostages had left the building, they waited for the escape car to arrive. It got stuck close to the Credit Union building. Mr. Slippery forced the hostages to help him get the vehicle going again. He then, together with the three adults, fled the scene. Mr.

Slippery was intoxicated during the incident. [ 36 ] Approximately two months after the Credit Union robbery, on March 14, 1997, at age 17, Mr. Slippery committed an assault causing bodily harm on Darlene Putz, a Paul Dojack Youth Centre staff member. He was transferred to adult court and was sentenced to 18 months incarceration for this offence. Mr. Slippery, together with the co-accused, Mr. Goodpipe, were serving a sentence at the Paul Dojack Youth Centre in Regina when this offence happened. The victim was working in the unit, while Mr. Slippery was locked in his room. He requested Ms.

Putz to come to his room to provide him with some toilet paper. When the victim opened the door to provide the paper, Mr. Slippery grabbed her by her shoulders and pulled her shirt up. She pushed herself away and fell to the ground. He then hit her in the back of the head numerous times and subsequently put his hands around her neck. [ 37 ] The victim was then able to get up, at which point Mr. Slippery ordered her to open the door of the co-accused’s cell. Both offenders then held Ms. Putz up as they walked her to the kitchen door, which she opened for them. Mr.

Slippery went through, checked for others outside, looked back to see what Mr. Goodpipe was doing and saw Ms. Putz falling to the floor. Mr. Goodpipe kicked her in the rib cage area. As she fell to the floor, the keys fell out of her right hand. Mr. Slippery took them and, together with the co-accused, escaped the facility. They were both apprehended within an hour of their escape. Ms. Putz lost consciousness during the attack and suffered severe bruising to her face and body as well as significant emotional trauma. Mr. Slippery later wrote her a letter of apology. Mr. Slippery told Dr.

Lohrasbe that he committed this offence because he felt hopeless and felt that he could not do a three year long sentence. Evidence was led that Ms. Putz still experiences distress when she hears mention of Mr. Slippery’s name and has residual hearing difficulty in one ear due to the offence. Adult Offences [ 38 ] Mr. Slippery’s first violent offence committed as an adult was an assault with a weapon on Richard Sabit, committed on April 12, 2001, when he was 21 years old. He received a six month jail sentence. On the date in question, while returning to an apartment in Regina, Mr. Sabit was confronted by Mr.

Slippery and another individual looking for Joe Smoke. Mr. Sabit started walking up the stairs to the apartment, with the men following and asking him if Joe Smoke was in the residence, which he denied. The men barged into the residence and began searching the rooms. Rhonda Asapace, who was asleep in the residence, was awoken by the men and noticed that Mr. Slippery was waving a knife around. Ms. Asapace asked both men to leave. While she was on the phone calling 911, the men tried to search the rooms where children were sleeping. Mr. Sabit tried to stop Mr. Slippery from doing this, prompting Mr.

Slippery to stab him with the knife in the chest. The knife was approximately eight inches long. Mr. Sabit suffered a minor wound approximately two centimeters in length. In his oral evidence in these proceedings, Mr. Slippery acknowledged that he had set out that night to kill someone, while being both intoxicated and brainwashed by gang life. [ 39 ] Just over a year later, on May 15, 2002, when he was 22 years old, Mr. Slippery committed an assault on Georgina Desjarlais. He received a three month jail sentence for this. On May 15, 2002, Mr.

Slippery and the victim were in a vehicle in Regina, when he hit her with a closed fist in the face twice. Mr. Slippery then dragged the victim out of the car where he hit her four or five more times, causing her a swollen lip and a bleeding nose. [ 40 ] Mr. Slippery’s next violent offence was an aggravated assault on Edna Smoke. which he committed on March 29, 2005, when he was 25 years old. Ms. Smoke was a relative of Mr. Slippery, whom he called “grandma”. He received a sentence of two years less a day of jail plus one year of probation. On the date in question, Mr.

Slippery was at the victim’s residence, along with other relatives. Several of the people in the residence, including Mr. Slippery and the victim, who was 74 years old at the time, had been drinking. Later that night, the police were called to the residence where they found Ms. Smoke lying on the kitchen floor, unconscious and her face extremely bloodied. It appeared that one of her eyes was out of the socket. The officers found smashed gyprock near where Ms. Smoke was lying. The gyprock appeared to match the shape of an individual’s head.

Emergency services were called and the police continued to check the house. They found Mr. Slippery lying on a bed asleep. There was blood on the tip of his boot and the bottom of his jeans. On the way to the hospital, Ms. Smoke had to be resuscitated. She was in the hospital for some time and required several surgeries. She suffered from multiple facial bone fractures, including a fracture of both the right eye socket and right cheek. Her jaw was broken in at least two places, one of her legs and her nose were broken, and she lost vision in her right eye. Subsequent to this incident, Ms.

Smoke was no longer able to live independently. Mr. Slippery was drinking very heavily that night and did not have much recollection of what had happened. He nevertheless pled guilty in view of the forensic evidence. He was extremely horrified when he learned what he had done and expressed deep remorse in court. Several support letters were filed for Mr. Slippery at the hearing. [ 41 ] The next violent offences on Mr. Slippery’s record are an assault with a weapon and assault causing bodily harm on Jason Poier and Marion Citynski, committed on August 27, 2007, when he was 27 years old.

He received two years and six months on each charge. On the date in question, Mr. Slippery was at the Jolly Roger Bar in Regina, drinking with Nathan Thompson. Mr. Thompson

became upset with his girlfriend and tossed two chairs. Jason Poier, an off-duty bouncer, ended up tackling Mr. Thomson to prevent further escalation of the situation. While Mr. Poier was on the floor, Mr. Slippery smashed a beer bottle over his head, causing a small cut to his head. He also repeatedly kicked him in the head. Marion Citynski, who tried to come to Mr. Poier’s aid, was punched by Mr. Slippery in the face, causing her right eye to swell. [ 42 ] The next offence committed is the predicate offence of assault causing bodily harm on Gordon Obey. This was committed on February 19, 2012, when Mr.

Slippery was 32 years old. During the evening of February 19, 2012, the victim was lying on the couch at his residence in Regina and was about to go to sleep, when Mr. Slippery and another male knocked at his door. Mr. Obey answered it and found Mr. Slippery angry and swearing, mentioning something about Mr. Obey having been an “asshole” with Mr. Slippery’s children. Mr. Slippery wanted to fight and Mr. Obey declined. However, Mr. Slippery persisted in wanting to fight and proceeded to stab Mr. Obey in the face with a pen near each of his eyes and on the forehead.

The victim was left with a two-inch cut under his left eyebrow, a three-inch cut on the left side of his forehead, and a wound to the side of his right eye, as well as scrapes to his elbows. He had to go to the hospital, where he received stitches. Mr. Slippery and Mr. Obey were acquainted since Mr. Obey’s sister had at one time been married to Mr. Slippery’s brother. Mr. Obey had also allowed Mr. Slippery and his children to live in his residence about a month earlier, since they had needed a place to stay until they had found their own place to live. [ 43 ] In his oral evidence in these proceedings, Mr.

Slippery stated that, contrary to his evidence at the trial, he had been drinking that evening and that Mr. Obey had approached him with a syringe, which he in turn used on Mr. Obey instead of a pen. He acknowledged lying in court as to what happened. [ 44 ] The last violent offence committed was an assault causing bodily harm on Jason Bolton, who was a fellow inmate. This offence was committed on June 7, 2014, at RPCC while Mr. Slippery was on remand in relation to these proceedings. He is to be sentenced on this offence in this proceeding. According to the Agreed Statement of Facts filed, Mr.

Bolton entered the cell of the co- accused, Mr. Noname, in the correctional center. Mr. Noname attacked Mr. Bolton, kicked him once, punched him approximately five times and then took him down, pinning him on the bed. Subsequently, Mr. Slippery entered the cell and punched Mr. Bolton in the head and face approximately 20 times. After the attack, he left the cell. Another inmate in the cell helped Mr. Bolton clean up. The assault was captured on video by a camera in the cell. According to Mr. Slippery, the assault was a gang-related crime. He was “ordered to” assault Mr.

Bolton, who had angered the “higher level guys” within the NS gang, the dominant gang in the RPCC. Mr. Slippery told Dr. Lohrasbe that if he had not followed through with the order, he, himself, would have suffered a serious assault or worse. He stated that he regrets the damage inflicted on Mr. Bolton, “but in here it’s pretty hard to walk away from the gang, and I’m worried about the Pen, because those guys may come after me”. Corrections History [ 45 ] Records pertaining to the sentences imposed and the correctional measures implemented over the years in respect of Mr.

Slippery were filed at the hearing. [ 46 ] From age 12 onwards, Mr. Slippery has spent most of his life either under court-ordered supervision in the community or in custody due to his offending behaviour. [ 47 ] The corrections history reveals that early on, during his adolescence, Mr. Slippery was repeatedly referred to resources and programming to address his issues, including substance abuse issues, which were deemed to be connected to his offending.

However, despite expressing remorse and the desire to get help with his issues, he generally failed to follow through, either by absconding or failing to complete. [ 48 ] In his later years, his participation in programming while incarcerated improved considerably. He showed greater motivation and participated in a number of programs, including violence prevention and substance abuse programs, while incarcerated.

He successfully completed these programs, usually with positive and at times even glowing reports. [ 49 ] As a general theme, however, despite expressing remorse, completing programming and expressing intentions to improve, Mr. Slippery, once released, relapsed and re-offended, usually in relatively short order. One significant gap in violent offending as an adult, however, did occur during a two-year and 10-month period between the commission of the assault on Georgina Desjarlais, on May 15, 2002, and the commission of the aggravated assault on Edna Smoke, on March 29, 2005.

This time period, however, was not completely free of involvement with the criminal justice system in that he did enter into a peace bond respecting Ms. Redwood and subsequently breached its non-contact condition October 15, 2003, for which he was sentenced to time served after spending 12 days on remand. He also spent time on remand in April and May, 2004, where he was reportedly threatening and confrontational to inmates. [ 50 ] Dr. Lohrasbe reviewed the records filed at the hearing pertaining to sentences and corrections measures imposed, and provided his impressions. [ 51 ] Mr.

Slippery’s most significant involvement in programming while incarcerated began at age 17, after being sentenced on March 5, 1997, for the robberies and related offences, and later on May 28, 1997, for the assault causing bodily harm on the Paul Dojack Youth Centre worker. He participated in Alcoholics Anonymous and abuse prevention education, as well as a domestic violence program. He reported benefiting from the programming, but his behaviour in jail worsened. [ 52 ] Mr. Slippery had become involved with the gang subculture and he displayed disruptive and threatening behaviour in jail during this incarceration.

Interventions were taken, such as temporarily moving him to another facility. [ 53 ] In April of 2000, when he was 20 years old, the correctional staff recognized that he needed more intense programming than was available at the RPCC, so he was sent to a half-way-back program at Riverbend, a minimum security institution. There he participated in relapse prevention programming, including the Self-Monitoring Group program, and received a positive report on May 11, 2000, which indicated he was “reaching out for support”, was taking responsibility, and understood his crime cycle, risk factors and safety plan.

[ 54 ] According to Dr. Lohrasbe, this report illustrated that from early on in his involvement with programming, Mr. Slippery had no difficulty with the intellectual or didactic aspects of learning. Rather, “internalizing and implementing what he has learned has been far more problematic”. [ 55 ] Mr. Slippery also attended the Substance Abuse Relapse Prevention Booster Program at Riverbend. The writer of the final performance report, dated May 16, 2000, suggested that limited motivation may have been the “missing link” between didactic knowledge and experiential change, and that Mr.

Slippery would have to have an increase in motivation if there were to be any recovery. [ 56 ] According to Dr. Lohrasbe, this lack of motivation to abstain is evident from a number of subsequent reports. Dr. Lohrasbe observes that it is difficult to be both an entrenched gang member and highly motivated to abstain, since substance abuse is a large part of the gang lifestyle. [ 57 ] Mr. Slippery did ask to stay longer at Riverbend to complete his programming and was permitted to do so. He was eventually released on conditions. However, he breached by consuming alcohol in the community and absconded for 12 days.

His release was revoked. [ 58 ] He asked for more programming and was then placed in the In Search of Your Warrior Program (Warrior Program), which is a high-intensity violence prevention program for Aboriginal offenders. He completed this 12-week program on January 19, 2001, at age 21, and was reported to have participated well and gained insight. [ 59 ] Dr. Lohrasbe considered it valuable for Mr.

Slippery to have participated in this program at his young age; however, he believed that 12 weeks was an insufficient period of time within which to internalize what was learned and to make substantial intrapsychic change, especially when still a gang member. [ 60 ] Following the sentencing on February 22, 2006, at age 26, for the aggravated assault on Edna Smoke, a Correctional Plan Progress Report was prepared dated December 11, 2006, which discussed Mr. Slippery’s gang involvement. It indicated that Mr. Slippery said he had joined a gang for acceptance. Mr.

Slippery’s primary worker provided the assessment that Mr. Slippery was “actively attempting to break away from his old ways of living off the avails of crime”, and that he had spent a larger amount of time previously at the RPCC in segregation. He also would try to keep to himself. Mr. Slippery told Dr. Lohrasbe that “he has often sought segregation in order to avoid entanglement between the various gang factions in the Institution”. [ 61 ] A Preliminary Assessment Report of August 31, 2007, further discussed Mr. Slippery’s gang history. It outlined that Mr.

Slippery had verbalized an intention to leave the gang lifestyle during his previous incarceration in 2006, and then completed programming and demonstrated changed behaviour while incarcerated and while outside. In 2007, when Mr. Slippery was employed with Street Culture Kids Project, he had “verbalized and given public presentations on the harmfulness of gang life”. He participated in such presentations while involved with an organization called Regina Anti-Gang Strategy, or RAGS for short. As a result, Mr. Slippery was concerned about being assaulted or stabbed by members of a particular gang.

He was concerned about how the original gang he was involved with would respond to his having joined a different gang, then wanted to leave the gang lifestyle, and then provided presentations, including TV interviews, that denounced the gang lifestyle. [ 62 ] Dr. Lohrasbe described Mr. Slippery’s trajectory of gang involvement, followed by extrication, as unusual. According to Dr. Lohrasbe, switching gangs alone is unusual enough, but in Mr. Slippery’s case there are the added steps of choosing to withdraw altogether and then publicly denouncing that lifestyle. According to Dr.

Lohrasbe, each step taken involved denouncing what he had embraced earlier, and likewise involved putting himself at risk. [ 63 ] In a correctional plan dated October 31, 2007, it was recommended that Mr. Slippery follow an Aboriginal Healing Plan. He was assessed as needing high-intensity substance abuse programming and moderate-intensity violence programming. He was approved for residence on the Pathways unit which is a penitentiary unit where he had access to programming and activities with an Aboriginal component. [ 64 ] A psychological assessment of Mr. Slippery was done on February 6, 2008, by Dr.

Dieter Schmidtke. A personality inventory suggested his main problem area was in respect of alcohol consumption. The Level of Service Inventory - Revised (LSI-

R) was applied. It is an actuarial scale and rated Mr. Slippery as medium - high risk. The HCR-20, which is a risk assessment tool, was also applied. Mr. Slippery scored significantly on eight of the 10 historical factors predictive of high violence recidivism. Dr. Schmidke recommended high-intensity substance abuse programming, domestic violence programming based on Mr. Slippery’s acknowledgment of partner abuse, and educational upgrading. He believed Mr. Slippery would require “supervision consistent with a moderate high risk and a moderate support needs offender”.

He emphasized that a substance free status was paramount, and that “monitoring and supervision to prevent substance use relapse was essential for successful parole”. He also indicated that being fully employed would be especially helpful since Mr. Slippery was more prone to substance abuse when bored and unemployed. [ 65 ] A Psychologist’s Report prepared by Dr. Teresa Szmukier of July 30, 2008, also addresses risk assessment and placed Mr.

Slippery, according to the VRAG tool, into a high risk category for violent recidivism, adding that his actual risk level may vary from the group percentages due to individual variations. The report also comments on Mr. Slippery’s having expressed, while housed on the Pathways unit, that Aboriginal spirituality was important to him and that related programming and activities have had a positive impact on him. He expressed a willingness to maintain involvement with Elders. [ 66 ] Dr. Lohrasbe noted the contrast between Mr.

Slippery’s past expressions of interest in Aboriginal spirituality and the current uncertainty about his spiritual path with hopes to blend Aboriginal traditions with Christian traditions. To Dr. Lohrasbe this represents another aspect of Mr. Slippery’s delayed maturation and unsettled personal identity. According to Dr. Lohrasbe, Mr. Slippery is searching for the right path towards acceptance, safety, purpose and self-worth. [ 67 ] Between May 12, 2008, and August 1, 2008, Mr. Slippery participated in and completed the Aboriginal Offender Substance Abuse Program while on the Pathways unit.

The program report was very positive, indicating Mr. Slippery was highly motivated throughout and that he was clearly able to point out how his substance abuse contributed to his criminal behaviour.

[ 68 ] Between September 17, 2008, and December 8, 2008, Mr. Slippery completed a three-month moderate-intensity Violence Prevention Program, also on the Pathways unit, with positive reviews indicating he had made gains through his participation, his motivation to change and his positive goals of being a good father, not being involved in gang life, and staying clean from substances. [ 69 ] This Violence Prevention Program was taken seven years after the Warrior Program, which was also specifically targeted to risk factors for violence.

However, like the Warrior Program, the Violence Prevention Program was of three months duration, which was, in the opinion of Dr. Lohrasbe, also too short a time. [ 70 ] In a Psychologist’s Report dated December 16, 2009, Dr. Robert McIntyre outlined that, since the time of the 2008 reports, Mr. Slippery had complied with the 2008 recommendations for programming. He rescored the LSI-R and he noted a decline in estimated risk levels to the moderate risk/needs level.

The reduction in risk was mainly due to involvement in positive activities, being native culture and ceremonies, and attempts to change peer associations through focus on a cultural centre and its activities. [ 71 ] Dr. McIntyre also assessed Mr. Slippery using the Violence Risk Scale (VRS) which is an actuarial scale for violent recidivism. His score was in the moderate range. The factor of violent lifestyle was isolated as particularly problematic for Mr. Slippery.

Other areas for targeted intervention that could moderate risk were: “history of association with criminal peers, history of issues with emotional control, substance abuse, paucity of community support, violent cycle, and history of noncompliance with community supervision”. The report also commented that, “good insight into violence and lack of mental illness related to violence are areas of strength for Mr. Slippery”. [ 72 ] Mr. Slippery completed a five-session Community Maintenance Program on February 23, 2010.

The review report, dated March 1, 2010, was positive as to his participation, insight, safety plan, and goals, including total abstinence and reconnecting with and parenting his children. He was, at the time, assuming the role of main caregiver to the six children in his home. [ 73 ] During his periods of incarceration, Mr. Slippery has also participated in other programming, such as cultural programming, cognitive living skills and employment programming, as well as participating in spiritual activities. [ 74 ] Also at times during his periods of incarceration, Mr.

Slippery has had periodic conflicts and incidents in the correctional institutions, largely due to his past gang affiliations. His having been a member of two gangs leaves him with the reputation of a “double turncoat” to some offenders, and in his belief, as a permanent gang member to some of the correctional staff, which status he denies. Mr. Slippery was charged with muscling and intimidation in 2013. He admits he had an argument with a correctional staff member, but says he has not muscled since he was a gang member. He told Dr.

Lohrasbe that the gang subculture is of far greater significance within correctional institutions than out in the community, which is something Dr. Lohrasbe has heard previously from other offenders. [ 75 ] As mentioned earlier, Mr. Slippery admitted to use of marijuana and methadone in 2013 and then crystal meth in 2016, while incarcerated. Evidence of the Forensic Psychiatrist [ 76 ] Dr. Lohrasbe provided both oral and written expert evidence in these proceedings. He is a medical practitioner who has been practising psychiatry, mainly forensic psychiatry, for over 30 years.

He has assessed more than 6,000 individuals in his capacity as a forensic psychiatrist and has testified on more than 500 occasions at all levels of trial courts throughout western Canada. He has testified in approximately 130 to 140 dangerous and long-term offender hearings. He was qualified in these proceedings to give opinion evidence in the areas of the risk of future violence for an individual and the possibility of eventually controlling that risk in the community, with specific reference to Mr.

Slippery. [ 77 ] In his two reports, dated June 5, 2014, and December 6, 2014, as well as in court, he clearly and comprehensively explained his risk assessment and his treatability and risk management opinion respecting Mr. Slippery. [ 78 ] Dr. Lohrasbe interviewed Mr. Slippery on at least two occasions and reviewed the documents and records pertaining to his criminal history that were subsequently filed with the Court. His assessment was based on the interviews, his review of the documentation, and his application of risk assessment tools. [ 79 ] Dr. Lohrasbe described Mr.

Slippery at the first interview as initially anxious but increasingly relaxed as the interview progressed. Mr. Slippery was spontaneous and loquacious throughout, with little of the evasiveness or censorship of speech often seen among hardened offenders. [ 80 ] Mr. Slippery became emotional whenever he mentioned his children. The emotion seemed to be authentic. Dr. Lohrasbe found Mr. Slippery to be preoccupied with his children far more than the vast majority of offenders he had assessed. They were the source of his concerns about the future and the focus of his sense of guilt and shame. [ 81 ] Mr.

Slippery did not appear to have any significant cognitive deficits despite his long-standing problems with substance abuse. He came across as a man within the average range of intelligence. He could articulate his thoughts without much difficulty and showed a good capacity for reflection, self-exploration and insight. [ 82 ] Dr. Lohrasbe was struck by Mr. Slippery’s openness, emotionality and sincerity during the interview. He felt that Mr. Slippery had the capacity to form good therapeutic relationships and to introspect, as was reflected in earlier reports. [ 83 ] Mr.

Slippery made many spontaneous comments, including expressions of remorse that were strongly suggestive of his having spent much time reflecting on his history, violence and its impact on others. He did not present as an angry man. He expressed a good understanding of the relationship between his childhood experiences and “the reactive development of his self-centered personality that has long been suffused with anger”. Nevertheless, he did not present as self-pitying, or as shifting responsibility. He struck Dr.

Lohrasbe as a person with “considerable untapped potential”, more so than most offenders that he assesses.

[ 84 ] Dr. Lohrasbe reviewed Mr. Slippery’s offending history. Mr. Slippery acknowledged his criminal record and willingly discussed each incident of violence. For the most part, he did not take issue with the facts of the offences discussed.

He did, however, explain that his recall of some incidents was limited or even absent due to intoxication at the time of the offences. [ 85 ] All but two of his violent offences, being those which took place while incarcerated, occurred when he was under the influence of alcohol or drugs. [ 86 ] At the time of the commission of the 1996 and 1997 robberies and related offences, Mr. Slippery was involved with drug abuse, including intravenous drug use. [ 87 ] With respect to his first adult conviction of assault with a weapon involving the stabbing of Mr.

Sabit, at age 20, he stated that he was heavily involved in the gang subculture and had to do what he was told or they would retaliate against him. [ 88 ] He became emotional when discussing the most violent of his offences, being the aggravated assault on Edna Smoke, saying that the damage he caused her has troubled him ever since. He indicated that he later visited her and asked for her forgiveness, which she readily gave.

He also indicated in court that he similarly visited Gordon Obey, the victim of the predicate offence, and asked for and obtained his forgiveness as well. [ 89 ] The offence of August 27, 2007, at the Jolly Rogers Bar, involving the assault causing bodily harm and assault with a weapon, happened after a four-month period of his having done well in the community. Mr. Slippery’s explanation was that he had gotten overconfident because he had a job with Rainbow Youth Centre and was doing programs.

He was invited for a visit by an ex-gang member and he accepted over his spouse’s protestations, but relapsed into alcohol use and ended up committing the offences in question. [ 90 ] He acknowledged that efforts to manage his behaviour immediately following his youth convictions and his sentence arising out of his transfer to adult court, were unsuccessful because he tended to abscond and return to alcohol and drugs. [ 91 ] Mr. Slippery recalled programming he took while incarcerated. He believes he has learned from each program incrementally.

He knows that personal change will be difficult and a lengthy process. He did not delve deeply into his childhood until he took the Warrior Program, which is one that appeared to give him new insights and hope. [ 92 ] Mr. Slippery readily acknowledged that he was in need of further assistance to help him address his issues. He is willing to participate in whatever programming is required. In his oral evidence he attributed his failure to consistently apply what he had learned in programming to his life in the community, and to his mistaken thinking at the time that he could do it on his own.

Risk Assessment [ 93 ] In making an assessment of the risk Mr. Slippery poses to others, Dr. Lohrasbe conducted interviews and utilized risk assessment tools. [ 94 ] Dr. Lohrasbe diagnosed Mr. Slippery with the primary diagnosis of substance abuse and dependency. He believed Mr. Slippery could also be diagnosed with Antisocial Personality Disorder. This, he described, as “a behavioural diagnosis applied to those with a history of childhood onset of repeated law breaking, often associated with irritability, aggression, recklessness, impulsivity, deceitfulness, and irresponsibility with commitments to others.

Antisocial Personality Disorder is a frequently made diagnosis in jail/prison, reducing the usefulness of this diagnosis to guide treatment, prognosis, or risk assessment”. [ 95 ] Dr. Lohrasbe found that despite his history of serious violence, “Mr. Slippery is not especially psychopathic ... He does not lack empathy, he does care for others, he experiences remorse, and has considerable insight”. [ 96 ] In assessing Mr. Slippery’s risk for violence, Dr. Lohrasbe used the HCR-20 risk assessment tool.

It is an empirically-based clinical guide that contains 20 risk factors that concern the past, present, and future: The domain dealing with the past includes 10 static historical factors; the domain dealing with the present focuses on five dynamic clinical factors; and the domain dealing with the future focuses on five risk management factors. Dr. Lohrasbe found that a substantial amount of risk factors were present for Mr. Slippery, especially those within the historical domain. He found that many risk factors remain active and relevant, and generally indicated that Mr.

Slippery remains “at risk for acts of violence in the foreseeable future”. [ 97 ] Dr. Lohrasbe also assessed Mr. Slippery’s risk based on a clinical formulation of risk, which is an unstructured elaboration on observations and considerations specific to the offender that begins with the maxim: “In general, the best predictor for future behavior is past behavior”. Dr.

Lohrasbe stated as follows: If there have been repetitive acts of violence, in a variety of situations, over an extended period of time, with a range of victims, the reasonable inference is of ongoing high risk, as in such cases the individual indisputably has internal forces (attitudes, personality, needs, violence-prone emotions, impulsivity) that drive violence. [ 98 ] According to Dr. Lohrasbe the nature and span of the violence across Mr. Slippery’s life indicated entrenched patterns. A major concern was the severity dimension of risk for violence, which Dr.

Lohrasbe found to be high, with weapons being prominent in several incidents. But he found that, taken as a whole, there appeared to be a decreasing trajectory of seriousness (and frequency) of Mr. Slippery’s violence. Another important concern was ongoing substance abuse, which was the most “concrete and amendable risk factor identified”. While Dr. Lohrasbe found Mr. Slippery’s honesty commendable in acknowledging misuse of substances while in jail, and further, that misuse of substances in jail is understandable, given the pressures within the institutions, Dr.

Lohrasbe did find it troubling that there was substance abuse during the present incarceration. [ 99 ] Dr. Lohrasbe assessed Mr. Slippery as high risk given his potential for violence while intoxicated. He concluded that if Mr. Slippery did not commit to abstinence, his risk for violence will remain of great concern. Dr. Lohrasbe at page 31 of his report stated as follows:

To summarize: Mr. Slippery has a history replete with violence – promoting risk factors that have long been established and were rooted in his unhappy childhood. There are reasons to believe that he may be in transition and the influence of those historical risk factors may be gradually in decline.

Nevertheless, the continued presence of substance abuse, and the uncertain impact of important relationships on his functioning when he is returned to the community points to the challenges that remain before his risk can be realistically managed in the community, especially given the potential seriousness of the violence he may inflict on a future victim. Treatability and Risk Management [ 100 ] Dr. Lohrasbe then examined Mr. Slippery’s treatability and the prospect of risk management. His opinion was that Mr. Slippery would likely take up opportunities for further programming. Dr.

Lohrasbe stated that while many factors influence whether an offender will benefit from a program, motivation and cognitive capacity are fundamental to treatability. The other factors include emotional stability, tolerance for challenge, areas of strength, interpersonal skills, capacity to form a therapeutic relationship, and compliance with guidance and direction. He stated that close family and friends, if pro-social, can assist with maintaining motivation through what can be a difficult and prolonged process. [ 101 ] His opinion was that since Mr.

Slippery has good motivation and has no major cognitive barriers to programming, it is reasonable to be optimistic about his treatability. An additional source for optimism, he stated, was the effects of aging and its accompanying maturity, which would likely assist with Mr. Slippery’s willingness and ability to redirect the course of his life. [ 102 ] Dr. Lohrasbe stated that, while Mr. Slippery’s unhappy and traumatic childhood cannot be undone through therapy, people can and do overcome the more damaging effects of their personal histories. He believes Mr. Slippery has begun this process.

His impression was that Mr. Slippery was gaining insight and “moving away from ‘black or white’ or ‘us against them’ mindsets”. Dr Lohrasbe stated: “Put together with his rejection of gang lifestyle and attitudes, he may be at the cusp of committing himself to working with ‘the system’ including therapists and parole supervisors, to ensure safe risk management in the future”. [ 103 ] Dr. Lohrasbe was of the opinion that: “A prolonged period of substance free living would allow time and opportunity for Mr.

Slippery to establish a healthy identity based on personal growth in the areas of education, vocational training, and cultural/spiritual pursuits”. He believes that Mr. Slippery is a good candidate for a certain model of rehabilitation called the Good Lives Model of Rehabilitation (GLM) especially with an Aboriginal component. It involves a strengths-based approach to rehabilitation that promotes personal goals, while also reducing and managing risk for reoffending. Dr.

Lohrasbe believes that while there may be limited resources in the prison system to comprehensibly provide the therapy, it is possible to deliver some of its components in a fragmented manner. For Aboriginal offenders, Dr. Lohrasbe suggests programming with a strong Aboriginal cultural/spiritual focus, such as the Warrior Program, which incorporates some of the principles of the GLM approach. [ 104 ] He further believes that, while Mr. Slippery has received a full range of appropriate programs before while incarcerated, he would likely benefit from repeating at least some of them. Dr.

Lohrasbe indicated that research and experience suggest that benefits from treatment need “booster doses” in order to transfer to life in the community. [ 105 ] As to the prospect of Mr. Slippery taking further programming, Dr. Lohrasbe stated the following at p. 34 of his report: He has to deepen his past gains in programs, and make a more comprehensive commitment to a non-criminal, non-substance abusing, non-violent lifestyle. He is at a point in his life where he may be ready to work toward comprehensive change.

His motivation to refashion his identity is high, driven by emotional attachment to his family, his fears of getting old in prison, his recognition that time is running out for him to develop his potentials, his remorse for hurting people in the past, his disgust with the gang lifestyle, and his increasing awareness that “letting go” of past hurts, shame, and anger is essential for him to live a meaningful life. Broadly, Mr. Slippery sees a purpose for himself outside of the prison setting. [ 106 ] Dr.

Lohrasbe explained that the specific content of a risk management plan could only be determined at a time closer to release, depending on progress and resources and supports available at that time. However, he suggested four broad management strategies that would likely help in managing Mr.

Slippery’s risk for violent offending while in the community: namely, monitoring with frequent appointments; supervision by imposing conditions; treatment by ongoing programming for substance abuse and educational and vocational programs; and victim safety planning, which would include bringing in any intimate partner as part of his support circle. Lengthy follow up utilizing such a risk management strategy would be essential. According to Dr. Lohrasbe, “As a general rule, the longer the follow up, the greater the possibility of managing risk in the community”. Conclusions [ 107 ] Dr.

Lohrasbe’s concluding opinion in his report dated June 5, 2014, is as follows: Based on my interview with Mr. Slippery and a review of all available information, it is my opinion that as things stand, and until he has demonstrated sustained changes in several realms relevant to risk for violence: a. There is a high likelihood that he will commit

an act of violence, and with a significant possibility of severe harm to a future victim. b. However, he appears to be a man in transition and open to further treatment interventions, with no obvious obstacles to benefiting from treatment. c. There is a realistic possibility that his risk could be reduced to the point where he can be safely managed in the community in the foreseeable future. d. At the point that he is released into the community, a lengthy period of follow up is crucial for ongoing risk reduction and risk management.

Risk assessment is not static, since changes are inevitable as the person and his circumstances alter over time. Risk assessments closer to the time of his release into the community will assist, in specific planning for safe management in the community. [ 108 ] In his update report, dated December 6, 2014, Dr. Lohrasbe maintains this opinion notwithstanding the commission of the gang directed assault on Mr. Bolton. Dr. Lohrasbe acknowledges that the assault is concerning, more so because Mr. Slippery was aware of its potential impact on these proceedings. [ 109 ] Dr. Lohrasbe stated that, “integrating the significance of

an act of violence in a jail into a risk assessment focused on risk of violence in the community, is challenging. Some offenders who commit such acts are simply perpetuating the factors similar to those operating in the community. For others the factors contributing to violence in a jail are very often different”. [ 110 ] For Mr. Slippery, Dr.

Lohrasbe found it is especially more difficult to integrate the significance of the assault into a more general risk assessment because of his complicated past with gangs, which made it more difficult to know how to integrate it into a more general risk assessment. [ 111 ] In Dr. Lohrasbe’s opinion, the incident, itself, does not undermine his view that Mr. Slippery is moving away from his past gang lifestyle. Rather, according to Dr. Lohrasbe, it shows just how difficult it can be to do so. Dr.

Lohrasbe believes that withdrawing from gang life would not be so difficult once back in the community. [ 112 ] In his update report, Dr. Lohrasbe also commented on discussions he had had with two positive support persons in the community who were willing to assist Mr. Slippery when back in the community. Taking these into account, as well, Dr. Lohrasbe reiterated that he was cautiously optimistic about the possibility of Mr. Slippery finally making a sustained effort at his rehabilitation.

He reiterated his overall opinion as outlined in his original report. [ 113 ] When asked as to the meaning of the term “realistic possibility” of reduction of Mr. Slippery’s risk to the point where he could be safely managed in the community, Dr. Lohrasbe said that it was equivalent to a realistic likelihood. Statutory Framework [ 114 ]

Part XXIV of the Criminal Code sets out the dangerous offender provisions. The relevant sections read as follows: 752. In this Part, ... "serious personal injury offence" means (

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

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

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

section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault). ... 753.

(1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied (

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

a) of the definition of that expression in

section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing (

i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or ... (

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

b) of the definition of that expression in

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

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

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

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

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

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

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

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

b) or (

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

(5) If the court does not find an offender to be a dangerous offender, (

a) the court may treat the application as an application to find the offender to be a long-term offender,

section 753.1 applies to the application and the court may either find that the offender is a long-term offender or hold another hearing for that purpose; or (

b) the court may impose sentence for the offence for which the offender has been convicted. [ 115 ] In addition to these

Part XXIV provisions, pursuant to s. 718.2 (

e) of the Criminal Code the court is required to pay particular attention to the circumstances of an Aboriginal offender in imposing sentence. [ 116 ] The applicable portion of s. 718.2 reads as follows: 718.2 A court that imposes a sentence shall also take into consideration the following principles: . . . (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [ 117 ] Subsections 753(1)(a)(

i) and (ii) are the pertinent provisions to determining if the criteria for a dangerous offender designation have been met. [ 118 ] In order for an offender to be declared dangerous under s. 753(1)(a)(i) , the following requirements must be proven by the Crown beyond a reasonable doubt: First, that the offence of which he has been convicted is a “serious personal injury offence” and Second, that the offender is a threat to others due to: a. a pattern of repetitive behavior which b. shows a failure to restrain that behavior, and c. presents a likelihood of causing death, injury or severe psychological damage to other persons through a failure to restrain his or her behavior in the future. [ 119 ] In order for an offender to be declared dangerous under s. 753(1)(a)(ii), the following requirements must be proven by the Crown beyond a reasonable doubt: First, the offence of which he has been convicted is a “serious personal injury offence” and Second, the offender is a threat to others due to: a. a pattern of persistent aggressive behaviour which

b. shows a substantial degree of indifference on the part of the offender respecting reasonably foreseeable consequences to others of his behaviour. [ 120 ] As to the requirement that the predicate offence be a “serious personal injury offence” as defined in s. 752 of the Criminal Code , I am satisfied that this has been met. Mr. Slippery was convicted of an assault causing bodily harm on Gordon Obey. His conduct endangered the life or safety of Mr. Obey.

The Crown proceeded by indictment and the offence is punishable up to a maximum of 10 years imprisonment. [ 121 ] In R v Knife , 2015 SKCA 82 [ Knife ] , the Saskatchewan Court of Appeal considered the meaning of the “pattern” requirement, as found in both s s. 753(1) (a)(

i) and (ii). It stated as follows: 64 Section 753(1)(

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

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

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

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

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

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

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

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

b) a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons in the future through a failure to restrain such behaviour, the offender must be designated as a dangerous offender.

The fact of repetition demonstrates a failure to restrain the violent behaviour but the additional element of future risk must also be established. 71 Similarly, once a pattern of persistent aggressive behaviour has been demonstrated under s.753(1)(a)(ii) showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences of his or her actions, then the offender must be designated as a dangerous offender. 72 Thus, the pattern/repetition analysis provides the evidentiary basis for assessing the future threat.

It is this future threat the dangerous offender provisions are aimed at curbing. Broadly speaking, if a court is unable to conclude the offender will pose a danger to the public in the future based on the offender's prior violent offences, the requirements of s. 753(1)(

a) have not been met and the offender must not be designated as a dangerous offender. However, if it is apparent the predicate offence is not an isolated occurrence but is rather a repetition of violent behaviour which shows a failure to restrain violent behaviour and is likely to continue in the future causing injury or death to others (for s. 753(1)(a)(i)), then the offender does pose a danger to the public in the required sense and should be accordingly designated as a dangerous offender. [ 122 ] In the case of Mr. Slippery I am satisfied that the Crown has established the requisite pattern of behaviour under each of ss. 753(1) (a)(

i) and 753(1) (a)(ii) of the Criminal Code . His criminal history shows a repeated use of violence, including serious violence, in a variety of circumstances. He has accumulated 10 assault convictions alone apart from the other violent offences. [ 123 ] Mr. Slippery in committing his violent offences has shown that he had very little control over his violent impulses; it did not take much for him to strike out in a serious way. His use of violence is linked to his inability to control his substance abuse and his inability to restrain his violent impulses in some social settings. [ 124 ] Dr.

Lohrasbe’s risk assessment confirms the high risk that Mr. Slippery – unless he successfully undergoes further prolonged treatment – will commit a violent offence in the future with potential serious harm to the victim. His behavioural pattern of violence suggests that he is currently a threat to others. [ 125 ] I am therefore also satisfied that the Crown has proven there is a likelihood of Mr. Slippery causing death, injury or severe

psychological damage through failure to restrain his behaviour in the future, as contemplated in s. 753(1)(a)(i). [ 126 ] I am also satisfied in respect of s. 753(1)(a)(ii) that the Crown has proven that in the past Mr. Slippery has demonstrated a pattern of persistent aggressive behaviour which shows a substantial degree of indifference on his part respecting the reasonably foreseeable consequences to other persons of his behaviour. [ 127 ] To conclude, given his commission of a serious personal injury offence, and given the pattern of behavior, he is a threat to the life, safety or physical or mental well-being of other persons pursuant to both ss.753(1) (a)(

i) and (ii) of the Criminal Code . The evidence meets the criteria for a dangerous offender designation. The defence, in fact, concedes that the criteria for this designation have been met. Mr. Slippery is therefore declared a dangerous offender. Sentence [ 128 ] The question now is what sentence should be imposed. [ 129 ] Section 753(4) of the Criminal Code lists the sentencing options.

They include an indeterminate jail sentence; a determinate sentence of not less than two years, plus a long-term supervision order for up to 10 years; or a determinate sentence. [ 130 ] Under s. 753(4.1) of the Criminal Code the court must impose an indeterminate sentence unless it is satisfied by the evidence adduced during the hearing 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. [ 131 ] The issue is whether Mr. Slippery ought to be sentenced to an indeterminate period of custody under s. 753(4) (

a) or to a lesser measure in the form of a determinate period of custody coupled with a long-term supervision order. A determinate sentence alone is clearly inadequate given the criminal history and evidence of ongoing need for programming and supervision. [ 132 ] It is important to note at the outset that the purpose of the dangerous offender provisions is the protection of the public.

See: Knife , at para 53 , R v Johnson, 2003 SCC 46 at para 19 . [ 133 ] The current dangerous offender sentencing provisions reflect amendments made in 2008. [ 134 ] Prior to these amendments, the court had discretion whether or not to make a dangerous offender designation once the criteria were met.

Under the current regime, if the criteria are met, the designation must be made and discretion is shifted to the sentencing stage, subject, however, to the presumption that an indeterminate sentence must be imposed unless the test for imposing a lesser measure in s. 753(4.1) is met. [ 135 ] Another change introduced by the 2008 amendments relates to the test for imposing a lesser measure. [ 136 ] Prior to the amendments, the court had the discretion to sentence offenders who met the dangerous offender criteria to a lesser sentence if satisfied there was a “reasonable possibility” that a lesser sentence would protect the public.

A “reasonable possibility” meant something more than mere hope or conjecture. See: R v M.A.G. , 2007 SKCA 144 , 302 Sask R 265 , R v Haug , 2008 SKCA 23 , 307 Sask R 1 . [ 137 ] The 2008 amendments changed the test of “reasonable possibility” to one of “reasonable expectation”. The definition of “reasonable expectation” has been considered by all levels of courts in Saskatchewan.

See: R v Bunn , 2014 SKCA 112 , 446 Sask R 184 [ Bunn ] , R v Toutsaint , 2015 SKCA 117 , R v Bird , 2015 SKCA 134 [ Bird ] , R v JM , 2011 SKPC 109 , 379 Sask R 211 , R v Daniels , 2013 SKQB 324 , 271 CCC (3d) 339 [ Daniels ] . [ 138 ] The term “expectation” has been deemed to involve a higher standard than “possibility”. “Expectation” has been found to suggest likelihood, whereas “possibility” suggests a lower standard of potential.

See Bunn , at paras 36 and 37 , R v Cote , 2012 SKQB 508 , Bird , R v Peekeekoot, 2014 SKCA 97 . [ 139 ] It follows that the standard of “reasonable expectation” will also not involve merely hope or conjecture. Further, it has been held that a “reasonable expectation” cannot be based on so many contingencies as to be little more than an expression of hope. See: R v D.J.S , 2015 BCCA 111 , 120 WCB (2d) 321 . [ 140 ] Although the standard has changed, the factors to consider under both tests remain essentially the same. The central question is whether it is reasonable to expect that Mr.

Slippery will make the required progress within the time frame of a determinate sentence plus a long-term supervision order. [ 141 ] Treatability is among the factors to be considered in determining whether there is a reasonable expectation that a lesser measure will adequately protect the public from Mr. Slippery’s risk to reoffend by committing murder or a serious personal injury offence. [ 142 ] A finding of treatability does not require a showing that an offender will be “cured” through treatment, or that his or her rehabilitation may be assured.

What it does require is proof that the nature and severity of the offender’s identified risk can be sufficiently contained in the community so as to protect the public. See: R v Little , 2007 ONCA 548 at paras 39 and 42 , 75 WCB (2d) 327 ; R v M.A.G. , 2007 SKCA 144 at para 57 , 302 Sask R 265 . [ 143 ] Put another way, the risk posed by any given offender need not be eliminated, only that it be reduced to an “acceptable level”. See: R v Johnson , 2003 SCC 46 , [2003] 2 SCR 357 , and Daniels . [ 144 ] There should be a full exploration of all treatment options available to the offender.

See: R v L. (G.L.), 2004 SKCA 125 at para 63 , 254 Sask R 255 [ L. (G.L.) ]. [ 145 ] As well, courts need to consider the potential for reducing the threat of harm offered by the determinate sentence and the long-

term supervision order in combination. See: R v Lemaigre, 2004 SKCA 125, 189 CCC (3d) 492 [Lemaigre], R v S.D.B., 2012 SKCA119, 405 Sask R 97 [S.D.B.]. An appropriate period of imprisonment can have deterrent and rehabilitative effects on the individual. Socan an appropriate period of community supervision, which can also have a restraining effect. See: L. (G.L.) at para 39. [146] Conditions which apply to a long-term supervision order and the consequences of a breach of those conditions are effectivetools to control and reduce the risk of re-offence in the community in appropriate cases. See: S.D.B.

Control by these conditions, whichare set up by the Parole Board of Canada, would assist an offender in his transition from prison life but would also allow him or her to beapprehended and re-incarcerated on short notice if their behavior began to deteriorate. The Corrections and Conditional Release Act, SC1992, c 20 allows for a long-term supervision order to be suspended to prevent the breach of a condition and the Criminal Code andmakes the breach of an order a separate offence that can attract a sentence of up to 10 years.

See Daniels at para 56; Lemaigre at para40; Little at para 51. [147] The Court in Daniels acknowledged that an individual’s motivation to take programming may be influenced by a potentialdangerous offender designation. At para. 99, the Court stated: “Even so, motivation is motivation, and if it derives, even in significantpart, from fear of being locked away as a dangerous offender it is not the less real for that”. [148] In S.D.B. the Court reviewed the underlying principles of the

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

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

Hence, it has been held that such a sentence “finds its justification in the protection of the public when the risk of re-offence andresulting harm to others is so acute and potentially unmanageable as to warrant such detention.” R v Lemaigre, 2004 SKCA 125, 189 CCC (3d) 492 (para. 11). 57 That being so, the law recognizes that the sentence reserved for dangerous offenders is meant to apply only to that small group ofoffenders whose personal characteristics and particular circumstances militate strenuously in favour of indefinite preventive detention.The corollary of this is that the sentence reserved for long-term offenders is reserved for that much larger group of offenders whose riskof re-offence, while exceptional, appears open to eventual control in the community or, put another way, appears open to reduction to anacceptable level in the community through the imposition of a long-term offender sentence: R. v.

Lemaigre (paras. 11, 15, and 16). [149] As Mr. Slippery is of Aboriginal descent, the Gladue factors must be considered (R v Moise, 2015 SKCA 39 at paras 22 and 24,457 Sask R 190; R v Montgrand, 2014 S

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