2013 MBPC 26, 2013 MBPC 26

Cite: 2013 MBPC 26 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) John Field, Q.C., ) for the Crown - and – ) ) Glen Joseph Bone, ) ) Matthew Gould, for the Accused Accused ) ) Judgment delivered: May 3, 2013. ) R.L. Pollack P.J. [ 1 ] This is an extraordinary proceeding. Glen Joseph Bone has entered pleas of guilty to one count of aggravated assault and one count of housebreak, enter and theft.

Upon those guilty pleas the Crown seeks a determination pursuant to Criminal Code subsection 753(1) that Glen Joseph Bone is a dangerous offender; if he is determined to be a dangerous offender then the Crown seeks an indeterminate penitentiary sentence. The defence say that the Crown has not discharged its onus of proof beyond a reasonable doubt; should I determine that the standard of proof has been met then the defence take the corollary position that a lesser measure than indeterminate detention would be reasonable. [ 2 ] Mr. Bone is 50 years of age.

The Ebb and Flow First Nation in Manitoba was his place of birth and he has an elementary school formal education. As will be seen, he has certain psychological deficits and a lengthy criminal record, particulars of which are set out in the attached Appendix. Whether the statutory sentencing principles, including Criminal Code , s. 718.2(

e) with respect to aboriginal offenders, are applicable here is an issue to be determined. [ 3 ] The first relevant statutory provisions are these: Application for finding that an offender is a dangerous offender 753.

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

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

a) of the definition of that expression in

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

i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or (iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint.

The Crown bases its application on the criteria in clauses 753(1) (a)(

i) and (ii). The offence under consideration (the “predicate offence”)

is a lynchpin of each criterion. There can be no doubt that the aggravated assault about to be described is a serious personal injury offence and the housebreak which followed a few minutes later is relevant to all of the issues under consideration. The predicate offence: [ 4 ] This offender’s 73 year old male victim was riding the bus home from a clinic appointment late in the afternoon on March 27, 2010. Also on the bus were Mr. Bone and his girlfriend. The victim got off the bus in St. James and was followed by Mr. Bone and his companion.

They followed him for more than a block until he arrived at the front steps of his residence whereupon Mr. Bone punched him in the face and dragged him off the steps. The victim was face down on the ground and Mr. Bone pinned him with his knees while delivering several punches to the man’s head and face. This was observed by a neighbour who ran over and managed to take hold of Mr. Bone to enable the victim to crawl away. Pictures of the victim as he lay in a hospital bed in a neck brace show cuts and bruising all over his face. [ 5 ] Upon being apprehended by the neighbour, Mr.

Bone claimed that the victim had disrespected his girlfriend while they were on the bus together. This claim will be found repeated in some of the pre-sentence evidence. Video tape of these individuals on the bus demonstrates absolutely no interaction between the woman and the victim. [ 6 ] Mr. Bone got away from the neighbour and found a nearby house with the door ajar. He entered and attempted to steal an assortment of jewellery and cigarettes but fled without taking anything when the homeowner and her son walked in on him. As they followed him into the back lane Mr.

Bone yelled “Do you want me to get my gun?” He was arrested shortly thereafter by police officers who had been summoned by that time. He was found to be intoxicated and carrying cocaine - .9 grams . [ 7 ] Mr. Bone was bound by a Criminal Code, s. 810.2(1) recognizance (“the British Columbia recognizance”) on the day of his arrest, the details of which included keeping the peace and prohibiting him from ingesting drugs or alcohol. [ 8 ] I digress for a moment to note that, in choosing to address the Court, Mr.

Bone stated: I’d like to take this opportunity to apologize to the Court and to the, to the victim of this incident. And if, if I can, I would prefer in person, and if I can’t, I would like to do that in writing, if it’s okay with you. And if there is any restitution to be paid I am willing to do that, too. That is not the only occasion on which Mr. Bone uttered words of apology in court. The offender’s last (1997) sentencing: [ 9 ] On January 15, 1997 Judge Aquila, then of this Court, sentenced Mr. Bone to twelve years for a series of offences ( see Appendix ).

The transcript includes this statement from the offender: I’d like to apologize to the people that I hurt. I don’t remember not too much but I’ll take responsibility. That sentencing concerned an incident in which Mr. Bone robbed a 67 year old man by forcing his way into his suite and beating him about the head and face. In another he beat a female storekeeper into a state of unconsciousness before robbing her of her jewellery, purse and cash register funds. In yet another assault he used a hammer, striking his victim in the head and face.

In reluctantly accepting a joint recommendation of 12 years, the judge ordered Mr. Bone to serve at least half the sentence before being eligible for parole. [ 10 ] It is significant that the offences for which he was sentenced on that occasion took place while a warrant for his apprehension was outstanding as the result of the suspension of his parole. He had not been compliant with reporting and in fact could not be found by his parole officer. The sentencing before that (1992): [ 11 ] That term of parole was as a result of a sentencing on May 19, 1992. Judge Howell (now retired from this Court) sentenced Mr.

Bone to a total of five years for another series of violent acts ( see Appendix ). In a dispute over a cigarette, he attacked a man causing him to lose sight in one eye. He obtained interim release upon that robbery charge but failed to attend court and a warrant issued. [ 12 ] While the bench warrant was outstanding, Mr. Bone beat and robbed a 71 year old male by punching him in the head and kicking him in the ribs.

In an unrelated assault he struck his victim in the face with a baseball bat; then he broke his victim’s arm with the bat when he tried to defend against another blow. [ 13 ] When he committed the crimes for which Judge Howell sentenced him he was not on parole but Mr. Bone was bound by a Probation Order after a conviction the previous year for assault occasioning bodily harm. Chronic failure to comply with supervision, whether by a Probation Officer or a Parole Officer, is obvious from the criminal record

summary. Other convictions demonstrating violence: [ 14 ] One of the February 21, 1984 convictions is for robbery. Mr. Bone, who was 21 at the time, pushed a 51 year old man to the ground on a city street and kicked him and punched him in the ribs and face. Then he relieved the victim of his wallet and some bottles of liquor. [ 15 ] This offender’s criminal record discloses assault convictions in 1981 and 1985 as well as one of assaulting a police officer. That latter case was in 1988 when police were executing a Narcotic Control Act search warrant at a local hotel. Mr. Bone was one of

several patrons told to stay where they were by police and he tried to flee. In a struggle with an officer he kicked her in the shin while flailing at another. He then calmed down and indicated that he would be cooperative yet he soon started again using his arms to resist. The female officer required a tetanus shot due to an abrasion. [ 16 ] It would appear that Mr. Bone was on probation at the time and in violation of at least one recognizance when he failed to appear in court. The British Columbia recognizance: [ 17 ] The predicate offence was committed just seven months after his last release.

At that point a British Columbia judge issued a recognizance pursuant to Criminal Code, s. 810.2(1). That two-year order required Mr. Bone to report to and be under the supervision of a Probation Officer and to comply with a series of peace-keeping conditions. It came about just before August 31, 2009, his warrant expiry date. These are its (verbatim) conditions: 1. Keep the peace and be of good behaviour. 2. Shall report in person immediately to a probation officer at 2865 Cruikshank Street, Abbotsford, British Columbia, and thereafter as, how and when directed by a probation officer. 3.

Shall report in person to Detective Judy Dizy of the Abbotsford Police Department at 2838 Justice Way, Abbotsford, B.C. within 48 hours of your release from custody and then thereafter as directed until the expiration of this order. 4. Shall reside in a place approved of by a probation officer and must not change that residence without the prior written permission of a probation officer. 5. Shall remain within the Province of British Columbia unless prior written permission to go outside the Province is obtained from the court or the probation officer. 6.

Shall submit to having your picture taken upon demand of any peace officer throughout your term of supervision. 7. Shall attend and participate in assessments including any assessments to determine your risk to re-offend, counselling or programming as may be directed by the probation officer. 8. Shall not have any contact direct or indirect with any victims of offences for which you have been convicted or any known members of their immediate families. 9.

Shall not attend within 300 meters of any known residence, place of employment, or education facility of any of the victims of offences for which you have been convicted or any known members of their immediate families. 10. Shall not possess, own or carry any weapon, including but not limited to any firearm, crossbow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, and any related authorizations, licenses and registration certificates, except compound bow. 11.

Shall not consume or possess alcohol or any controlled substances as defined by the Controlled Drugs and Substances Act excluding prescription medication prescribed to you by a licensed physician or dentist. 12. Shall not enter any establishment where alcohol is the primary commodity for sale. 13.

Shall not knowingly associate with anyone known to have a criminal history for violence except for participants in a program or individuals approved of by your probation officer who a supervising peace officer has determined to be a detriment to your programming, counselling or reintegration. [ 18 ] The history of that recognizance is brief. On November 19, 2009 the offender obtained permission to move to Portage la Prairie.

In February 2010 he obtained permission to move to Winnipeg where he became a client of the Criminal Organization High- Risk Offender Unit (“COHRU”), a Winnipeg program of Manitoba Probation. [ 19 ] Mr. Bone reported as directed by COHRU, including reporting in person when required. He discussed issues with his probation officer such as employment, his girlfriend and police checks.

On March 23, 2010 he reported in person and discussed a proposed trip to his First Nation and an employment insurance issue. [ 20 ] On March 25, 2010 he called to say that he was a beating victim of some gang members who he met while in custody and that he was going to a hospital. He reported the next day – March 26, 2010 - and presented with facial injuries. [ 21 ] The predicate offence was committed on March 27, 2010. The hearing: [ 22 ] Upon Mr. Bone’s pleas of guilty and proof of the Criminal Code

Part XXIV notice and documentary prerequisites, an assessment was ordered and provided by Dr. David Kolton of Forensic Psychological Services in Winnipeg. [ 23 ] The exhibits in this case included the history of the offender from various corrections authorities and court transcripts. Crime scene photographs and police reports were tendered as well. The material from corrections and probation personnel consisted of over 800 documents to which Dr. Kolton’s report was added. [ 24 ] The Crown called police witnesses to testify about their investigation which led to the 1997 convictions. With respect to the

predicate offence, I viewed a video statement of the aggravated assault victim and a video of his bus ride from an on-board camera. I would add, parenthetically, that very few of the documents were referred to in examination or cross-examination of witnesses. While I know what those documents represent and I have looked at some, I have certainly not studied all of them. [ 25 ] In addition to the police witnesses, I heard the testimony of Mr. Bone’s first Probation Officer, Jason Toews and his COHRU Probation Officer, Ronald Raghunan.

Cindy Elliott, his case manager from Milner Ridge Correctional Centre where he is now detained, testified as well. The Crown list also included Delaine Figur, a Parole Officer who works in the penitentiary setting and Jeanette Acheson, a Parole Officer who supervises offenders in the community. [ 26 ] The final witness was Dr. Kolton and it is his evidence that provides a framework for a determination of the primary issue. Dr. Kolton has never treated the offender in his clinic. He is an independent appraiser of the offender and an assessor of the information contained in those volumes of documents. Dr.

Kolton spent four hours over two sessions interviewing Mr. Bone at Milner Ridge Correctional Centre and had psychological testing done under the supervision of institution staff. [ 27 ] Dr. Kolton’s qualifications to provide opinions were admitted by the defence and, at the conclusion of the examination of Dr. Kolton on those qualifications, counsel for Mr. Bone said this: At this stage, the defence is in agreement that the report is useful in terms of highlighting the issues that have to be examined to determine the sentencing for Mr.

Bone, essentially, the primary focus being the risk in the community, and, and what factors apply and what factors don’t. The defence did not tender any exhibits, Mr. Bone did not testify and no witnesses were called. Dr. Kolton’s assessment: [ 28 ] I learned from Dr. Kolton that this offender is addicted to alcohol and several drugs; this is called polysubstance dependence. Mr. Bone suffers from no major mental disorders but he has a borderline personality disorder and an anti-social personality disorder. Both represent risk factors. [ 29 ] Dr. Kolton took a personal history from Mr.

Bone and was satisfied that it reflected what he had been telling psychologists in previous assessments. His addiction is relevant to his personality disorders. Before coming to diagnostic conclusions, Dr. Kolton reported under the heading “Self-Disclosure and Accountability”: Clearly Mr. Bone’s level of self-disclosure is deficient. It is my impression that his lack of recall is related to his level of intoxication and perhaps the repression of memories.

His limited self-disclosure is also consistent with his efforts at impression management, attempts to portray himself in a favourable light, his reluctance to admit dysfunction, and the tendency to avoid negative aspects of himself. ( emphasis added ) While accountability is clinical language, it is court language too. An inability to appreciate his wrongdoing as a result of his addiction is a concern. [ 30 ] I have already quoted apologetic expressions by Mr. Bone. Under “Insight into Offending Behaviour” Dr. Kolton wrote: Mr.

Bone presented as experiencing remorse for what he had done as well as experiencing empathy for his victim. It is worth noting that his expressions of remorse inevitably were, however, somewhat stunted as he is very focused on the consequences to himself. As well, a limited empathic response is not surprising given he has such great difficulty in general facing what he has done, likely as a result of a marked degree of shame, his avoidance of seeing himself in a negative light, and his unwillingness to see himself as capable of such violence.

Inhibited remorse or empathy is another warning sign. [ 31 ] In testifying about his personality disorder conclusions, Dr. Kolton stated: One of the personality disorders that I believe Mr.

Bone has symptoms of is what we call borderline personality disorder and borderline personality disorder has, as one of its key features, this lack of a well formed identity, and what we also know about that personality disorder is that it elevates one’s risk for violence , and particularly in combination with anti-social personality disorder , which is the more criminally oriented sort of style of personality, and so this test gives me some information that leads to that diagnosis. ( emphasis added ) [ 32 ] Risk assessment was measured using the Violence Risk Appraisal Guide and the Violence Risk Scale.

Both scales are used because historical factors, like drug abuse, and dynamic factors, like whether a subject presents as impulsive, should be taken into account in achieving a probability of the repetition of violent offending. Dr. Kolton testified: Now, on both of these scales Mr. Bone scored quite high, and so the probabilities of recidivism I provide in the report, but they are both considered to be high. ( emphasis added ) [ 33 ] Earlier in his testimony Dr. Kolton made this observation: Mr. Bone hasn’t had a lot of success being supervised under conditions in the community.

The sort of length of time that he has been able to manage successfully can be measured in, in months, as opposed to years, which is concerning from a risk standpoint because it suggests that the, the conditions that are imposed on him while in the community tend not to prevent him from acting in a violent manner. [ 34 ] The foregoing is not to suggest that Mr. Bone presented only with risk factors and the defence stress the importance of this

observation: He reports a positive attitude toward the possibility of personal change, the value of therapy and the importance of personal responsibility. When I asked him about this Dr. Kolton stated that: . . . the nature of Mr. Bone’s problems are severe, and so the, the treatment that is required is long-term and intensive, and, and I can tell you, from my experience working with individuals like Mr. Bone in the community, that I have certainly worked with individuals where we have had success with long-term intensive treatment.

In answer to a further question from me, he described some of his clinic’s experience with high-risk offenders: We’ve had a measure of success working with some high-risk individuals who have not gone on to re-offend violently, but the, resources that are required to assist and manage that individual are extensive and are – my experiences that over the course of the last several years these resources have become more and more limited. [ 35 ] In the report, Dr. Kolton struggled to articulate a plan for community supervision of Mr.

Bone: In my opinion, this is a case where management of risk will be very difficult and largely dictated by the level, intensity and quality of resources and supports available to be put in place for Mr. Bone. Mr. Bone has demonstrated that without intensive resources in place to provide structure, accountability, monitoring, surveillance, supervision, treatment and support there would not be a possibility of effective risk management.

In my opinion, a containment model, in which supervision and monitoring, psychological treatment, life skill development, and employment support components are coordinated in an integrated manner to provide intensive risk management services is required in order to manage the multitude of risk factors present in this case. [ 36 ] When asked about the availability of 24-hour 7-day supervision in halfway houses, Parole Officer Jeanette Acheson validated Dr. Kolton’s concerns about resources. The Parole Officers are not on duty past 6:00 P.M. and they are replaced by commissionaires.

In the event of crisis, they are given an emergency number to call - which rings a telephone in Ottawa! She also added that parole visits cannot be scheduled more frequently than eight times per month and there is no electronic monitoring available. Whether the offender is a dangerous offender: [ 37 ] Returning to the subsection 753(1) criteria, a conclusion with reference to paragraph (a)(

i) is inescapable; it is that the aggravated assault to which Mr. Bone has pled guilty is the latest episode in a series of uncontrolled violent acts in which victims have been injured - some maimed and disfigured - all of them obviously impacted by the brutality that they suffered. It is undoubted that the predicate offence represents yet another repetition of the violence described in 1997 to Judge Aquila, in 1992 to Judge Howell and to Judges before that in 1988, 1985, 1984 and 1981 when, as a 19 year old first offender, Mr.

Bone was jailed for assault. [ 38 ] With respect to paragraph (a)(ii), there is also evidence of indifference on Mr. Bone’s part although, as I pointed out, that may be attributable more to his substance abuse than to those disorders which make him act out so impulsively, so violently and so frequently. [ 39 ] These are the elements of Mr.

Bone’s behaviour pattern over three decades: (1) random violence against other persons; (2) violence to enable him to steal; (3) violence that is prolonged; (4) violence using weapons; (5) violence that is prolonged without evidence of restraint; (6) violence while bound by sentences, bail orders or parole; provisions to keep the peace (7) shallow insight or remorse. Not parenthetically, this pattern is also characterized by periodic convictions for disobeying court orders, drug offences including trafficking, dangerous driving, breaking and entering and others.

And this offender is polysubstance dependent. [ 40 ] These elements prove that this offender presents “a threat to the life, safety or physical or mental well-being of other persons”. Accordingly I am left with no reasonable doubt that Mr. Bone is a dangerous offender. Whether a lesser measure than indeterminate imprisonment is reasonable: [ 41 ] Sentencing of dangerous offenders is circumscribed by these Criminal Code provisions in

section 753 :

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

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

(

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

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

(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. The subsection 4.1 exemption from a mandatory indeterminate sentence does not come with a burden of proof for either party.

It puts an onus on the judge hearing an application to examine the evidence and to determine whether evidence has been adduced that a lesser measure can be expected to protect the public; then the judge must determine if it is reasonable to have that expectation based upon the evidence. [ 42 ] Counsel argued this case in writing (although I reconvened and invited further argument to which I will refer shortly). The defence brief on this point identifies salient issues but the argument is in general terms and refers to little evidence. Accordingly it has taken some time to complete the subsection 4.1 analysis.

The brief says that: The written argument submitted by the Crown addresses the historical incidents and records available to assess this aspect of determining a suitable sentence upon Mr. Bone. It is respectfully submitted that there is sufficient evidence provided to the Court to establish that a lesser punishment than an indeterminate sentence would adequately protect the public. I have reviewed the evidence adduced with a view to proving this claim because the stakes are high for Mr. Bone in this extraordinary proceeding. [ 43 ] The first point made by the defence is that Mr.

Bone’s awareness of his need for treatment and rehabilitation, when combined with the likelihood of some kind of substantial penitentiary sentence, imply that a lesser sentence would suffice. Such a submission requires some evidence that this awareness on the part of Mr. Bone is not only credible but of sufficient strength to give someone in Dr. Kolton’s position some confidence in Mr. Bone’s ability to adhere to that rehabilitative desire.

Even if that can be inferred, there has been no evidence adduced of a timeline (such as the seven years suggested by his counsel) that would satisfy the public protection requirement. [ 44 ] This submission included reference to treatment programs taken by Mr. Bone while serving sentences and certainly the material details some of that activity. Although the Crown takes issue with the claim, the defence say that there was improvement in Mr. Bone’s “behaviour and progress” during his most recent sentence. That may be but the events of March 27, 2010 deny that submission any traction. [ 45 ] This

section of the defence brief ends with reference again to the substantial period of time he will have while imprisoned to resume his progress. Cindy Elliott, his case manager while in remand custody, reports that Mr. Bone has been eligible for 30 hours of counselling for anger management and 20 hours for addiction recovery yet he has not taken advantage of those opportunities. It is interesting that he took a course entitled “Planning for Discharge”. [ 46 ] The next defence submission is that the offender has family support from his sister and girlfriend.

I don’t know what became of his girlfriend; after the brutal aggravated assault in front of his latest victim’s home she was not seen again by witnesses nor was she arrested with him. I see no basis for the suggestion that there is some merit in the offender having her community support. [ 47 ] With respect to Mr. Bone’s sister, I know that he told his Probation Officer that he moved to Portage la Prairie in order to be with his family and he was indeed living with a sister. And eight days later he told Probation Officer Jason Toews that he wished to move to another sister’s residence because of crowding.

But by February he was living in Winnipeg with his girlfriend. Other than a remark to Mr. Toews about staying with relatives while visiting Winnipeg, I found no other evidence of support by family members. [ 48 ] With respect to his addictions, the defence submission is that a supervision order requiring treatment “could have” a significant impact on protecting the public upon Mr. Bone’s release; “could have” does not meet the test of reasonableness in subsection 4.1.

Evidence of a realistic plan addressing polysubstance dependence with a time line is what is called for to validate that submission. [ 49 ] I digress again to observe that Mr. Bone was not intoxicated every time he harmed someone. The storekeeper who was knocked unconscious was interviewed by police and asked, in a general question, to provide a description of her attacker. That question had nothing to do with the topic of sobriety but the witness used the word “sober” when describing Mr. Bone. And his conversation and movements before the attack which she described are consistent with sobriety. [ 50 ] Mr.

Bone presents a high risk to offend again. There is no evidence of a resource to safeguard public safety other than incarceration. Even if Ms. Acheson had described a half-way house offering individualized non-stop day-and-night life skills counselling and supervision, I have not heard any evidence of when he would likely be eligible for such a program. Relevance of Criminal Code , s. 718.2(e): [ 51 ] The final submissions by the defence concern the principles of restraint and giving due attention to his circumstances as an

aboriginal offender. In their brief, the prosecution argued that these principles do not apply in the case of an offender who fits one of the criteria in Criminal Code, s. 753(1)(a), citing the recent Court of Queen’s Bench decision in R. v. Osborne , [2012] M.J. No. 248 . The defence brief did not deal directly with this Crown position and I invited further submissions on that point.

The defence took the position that Osborne was wrongly decided and, in the absence of appellate authority, I could depart from that analysis. [ 52 ] There has been no Charter of Rights and Freedoms challenge to the validity of the legislation as enacted by Parliament in 2008 nor has the defence sought a constitutional exemption from the mandatory wording in

section 753. In the Osborne case Dewar J. was similarly not called upon to make any Charter rulings and ultimately he imposed the mandatory indeterminate penitentiary sentence. In considering statutory sentencing principles, he wrote (at paragraph 16): In my opinion, the s.718 (sic) considerations are essentially now irrelevant to the issue as to whether a declaration of dangerous offender should be made, unless the

interpretation of the dangerous offender legislation is in issue. The decision to declare a dangerous offender is to be based primarily on whether the Crown has proven beyond a reasonable doubt that the objective criteria in ss. 753(1) and (1.1) exist. I do not see where the s. 718 considerations enter into that deliberation. I agree with Dewar J.’s

interpretation. [ 53 ] This requirement - that in the absence of evidence justifying a lesser sentence, all dangerous offenders must be given indeterminate sentences - represented a radical change in how habitual criminals can be prosecuted. To put it bluntly, it is now easier for the Crown to secure indeterminate sentences. Dewar J. predicted (at paragraph 18) that more indeterminate sentencing would follow: In my respectful opinion, the new law has paved the way for the more frequent designation of dangerous offenders and the imposition of indeterminate sentences.

Whether this is change for the better is not the issue. Where Parliament sets down objective criteria, the judge is obliged to respect its wishes, subject to any Charter issues. Finally, Dewar J. wrote (at paragraph 74): Proportionality, rehabilitation and the Gladue principles might otherwise be the guiding principles when an offender is being sentenced for an offence. But the legislation suggests that protection of the public trumps those criteria in the case of a dangerous offender application.

Conclusion: [ 54 ] Therefore, having found Glen Joseph Bone to be a dangerous offender and being left without evidence justifying (within the meaning of Criminal Code , s. 753(4.1)) a lesser measure, I am imposing a sentence of indeterminate detention in a penitentiary. [ 55 ] Pursuant to the provisions of Criminal Code, s. 109, the offender is prohibited from possession a series of weapons, ammunition and explosive substances for life. [ 56 ] Pursuant to Criminal Code, s. 487.051(1), the offender is ordered to provide on demand a sample of his DNA suitable for entry in the national databank. [ 57 ] Pursuant to Criminal Code, s. 760, it is ordered that a copy of Dr.

Kolton’s report to me dated July 11, 2011 and a copy of this judgment be provided to the Correctional Services of Canada. [ 58 ] Costs and surcharges pursuant to Criminal Code, s. 737 are waived. “Original signed by” R. L. POLLACK P.J. APPENDIX – Conviction and Sentence Record 1981-11-09 Winnipeg 1) Possession of a narcotic 2) Theft under $200 1) $60 & costs, default 6 days 2) Conditional discharge 6 months 1981-11-21 Winnipeg 1) Assault 2) Possession of a narcotic 1) 2 months 2) $100 & Costs , default 10 days

1982-01-13 Winnipeg Theft under $200 2 months consecutive to sentence serving 1982-07-12 Winnipeg Theft over $200 $50 & costs , default 5 days 1982-10-07 Winnipeg Theft under $200 2 months 1984-02-02 Winnipeg Possess Narcotic $200 , default 20 days 1984-02-21 Winnipeg 1) Robbery 2) Possess Stolen Property 3) Fail to comply with recognizance 1) 12 months 2) 30 days consecutive 3) 30 days consecutive 1985-10-29 Winnipeg Assault s. 245 CC 45 days 1986-08-20 Winnipeg 1) Break, enter & theft 2) Fail to comply with Recognizance 1) 9 months 2) 3 months.

Consecutive 1988-06-01 Winnipeg 1) Trafficking in a narcotic 2) Fail to attend court 1) 60 days 2) time in custody 1988-10-25 Winnipeg 1) Theft over $1,000 2) Dangerous operation of motor vehicle 3) Forcible Entry 4) Fail to comply with recognizance (2) 5) Fail to comply with probation order 6) Assault peace officer 7) Public mischief 1) 2 years 2) 6 months concurrent 3) 6 months concurrent 4) 6 months concurrent 5) 6 months concurrent 6) 6 months concurrent 7) 6 months concurrent 1990-11-16 Winnipeg Possess Property obtained by crime under $1,000 3 months 1991-02-22 Dauphin Assault cause bodily harm 6 months & probation 2 years

1992-05-19 Winnipeg 1) Robbery 2) Fail or refuse to provide breath sample 3) Theft over $1,000 4) Assault cause bodily harm 5) Assault cause bodily harm 1) 3 years & weapons prohibition 10 years 2) 6 months consecutive 3) 6 months consecutive 4) 1 year consecutive 5) 1 year consecutive 1993-04-16 Winnipeg Break, enter & theft 1 year concurrent with existing sentence 1997-01-15 Winnipeg 1) Robbery with violence 2) Break, enter & theft 3) Assault with intent to steal 4) Assault with a weapon 5) Mischief 1) 12 years concurrent but consecutive to existing sentence 2) 12 years concurrent 3) 12 years concurrent 4) 2 years concurrent 5) 6 months concurrent