Her Majesty the Queen - v. -, 2013 SKPC 35

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 035 Date: March 7, 2013 Information: 24398616 Location: Carrot River _____________________________________________________________________________ Between: Her Majesty the Queen - and - Palmer Johnston Nawakayas Appearing: Mr. T. Healey For the Crown Ms. R. Newman, Q.C. For the Defendant DECISION ON 810.1 PEACE BOND APPLICATION B. MORGAN , J INTRODUCTION [ 1 ] The Crown has brought an application under

section 810.1 of the Criminal Code asking this Court to order the defendant Mr. Nawakayas to enter into a recognizance, based on a concern that the defendant may commit a sexual offence against one or more persons under the age of sixteen years. The process in

section 810.1, s. 810.01 (intimidation of a justice official, a criminal organization offence, or a terrorism offence) and s. 810.2 (serious personal injury offence) is identical in that a judge in all three cases, “if satisfied by the evidence adduced that the informant has reasonable grounds for the fear”, may order that the defendant enter into a recognizance to keep the peace and be of good behaviour.

[2] The Crown called Cpl. Brian Haswell, an RCMP officer who is assigned to the High-Risk Offender Unit in Regina, and whowas the informant. Additionally, they called Ms. Jenna Perrot, a probation officer in Melfort who has been supervising Mr. Nawakayassince February of 2010. Finally, Cst. Devin Shuba, an RCMP member who was stationed at Mr. Nawakayas’ home reserve for a periodof time, gave evidence respecting interactions he had with Mr. Nawakayas. Various exhibits were filed by consent, mostly being priorinformations, transcript of prior sentencing proceedings, the criminal record of Mr.

Nawakayas, and an e-mail from Ms. Perrot (thenknown as Jenna Milne) that were used as part of the basis for Cpl. Haswell’s swearing the information. In addition, the defence filed aJanuary 23, 2010 transcript of proceedings respecting Mr. Nawakayas, who appeared on his own behalf that day, at which time heconsented to a s. 810.1 order that has now expired. Thus, for that and other reasons, the Crown seeks another order. [3] There are a number of issues. During the hearing, I made a preliminary ruling as to what documents Cpl.

Haswell could relyon in drafting the information, there being considerable dispute over the value of that e-mail from Ms. Perrot (Exhibit P-6), whichcontained her observations of Mr. Nawakayas’ situation. Further, there was an issue raised over the very nature of the proceedings, andwhether or not the strict rules of evidence would apply. Finally, the ultimate issue becomes whether or not the Court should make theorder sought by the Crown. THE LEGAL FRAMEWORK [4] The relevant portions of s. 810.1 read as follows:

(1) Any person who fears on reasonable grounds that another person will commit an offence under

section 151 or 152, subsection153(1),

section 155 or 159, subsection 160(2) or (3),

section 163.1, 170, 171, 171.1, 172.1 or 172.2, subsection 173(2) or 212(1), (2),(2.1) or (4) or

section 271, 272, 273, 280 or 281, in respect of one or more persons who are under the age of 16 years, may lay aninformation before a provincial court judge, whether or not the person or persons in respect of whom it is feared that the offence will becommitted are named.

(2) A provincial court judge who receives an information under subsection (1) may cause the parties to appear before a provincial courtjudge.

(3) If the provincial court judge before whom the parties appear is satisfied by the evidence adduced that the informant has reasonablegrounds for the fear, the judge may order that the defendant enter into a recognizance to keep the peace and be of good behaviour for aperiod that does not exceed 12 months. [5] Subsection 3.01 allows for the recognizance to be for a period of two years, if the defendant has been previously convictedof a sexual offence in respect of a person who is under the age of 16 years, and s. 3.02 goes through a number of conditions that thedefendant can be placed on as part of that recognizance. [6] In this case, Cpl.

Haswell has specifically alleged that he has “reasonable grounds for believing” and that he does believethat, Mr. Nawakayas will commit an offence under s. 151, 152, 155 or 159, subsection 160(2) or (3), s. 163.1, 170, 171 or 172.1,subsection 173(2) or s. 271, 272 or 273, and seeks an order binding Mr. Nawakayas over to keep the peace pursuant to s. 810.1 of theCriminal Code. 1. What is the general nature of a s. 810.1 order? [7] In R. v.

Fontaine, 2010 SKPC 16 , 2010 SKPC 016, Judge Nightingale rejected the view that this type of proceedingis “quasi criminal” in nature, holding that a positive result for the Crown at a hearing of this nature does carry at least the potential ofcriminal consequences for the defendant. The Crown takes issue with that, arguing that a s. 810.1 hearing is preventative in nature,relying for that theory on the case of R. v. Bilida, 1999 ABQB 1016, in which Mr. Justice Martin held that a s. 810.2 hearing “... is not acriminal charge, nor does it address past misconduct”.

He goes on to say “... these matters are at best quasi criminal and in fact moreakin to civil proceedings than criminal”.

[8] In my view, the binding authority in Saskatchewan is a decision in R. v. Loysen, 2006 SKQB 290, in which Madam JusticeWilkinson of our Court of Queen’s Bench stated at paragraph 1:

Section 810.1 of the Criminal Code is a preventative measure, designed to protect children from victimization. It requires an informantto establish a reasonably grounded fear that a person will commit a listed offence. [9] In R. v. Budreo, (ON CA), 2000 CanLII5628 (ONCA), the Court was dealing with the constitutionality ofs. 810.1. The Court held at para. 25: ...It is a preventative provision not a punitive provision.

It aims not to punish past wrongdoing but to prevent future harm to youngchildren, to prevent them from being victimized by sexual abusers.....It is about assessing the present risk of a person committing asexual offence against young children... [10] In paragraph 33, the Court noted:

Section 810.1 looks not to a person’s status but to a person’s present risk of future dangerousness. That risk will have to be assessed bylooking at all relevant factors in a person’s life, factors that are not immutable but will change over time. [11] In paragraph 39, the Court noted: ...The defendant’s right to liberty in not the only s. 7 interest at stake in s. 810.1. The societal interest in protecting young children fromharm must also be taken into account.

Section 810.1 attempts to balance these two interests: The interest of likely child sexual abusers ingoing where they please, including places where young children gather, and the interest of the state in ensuring that young children cango safely and securely to places typically associated with children’s activities. [12] At paragraph 42, the Court held: What s. 810.1 is trying to measure is a defendant’s present likelihood of future dangerousness or present risk of committing a sexualoffence against children in the future. [13] The onus is on the Crown to satisfy the Court on a balance of probabilities that there are grounds for the issuance of therecognizance (see R. v.

Soungie, 2003 ABPC 121 and the cases cited therein). In determining whether or not there is a risk that thedefendant will commit a sexual offence against children in the future, I am to consider all the relevant evidence (see Loysen, supra, para.17, citing Budreo, supra). 2. What evidence is admissible at the hearing? [14] The Crown argues that the strict rules of evidence do not apply to this type of of hearing, as it is a preventative type of case. The defence argues that the regular rules of evidence pertain. [15] In R. v.

Zeolkowski, (SCC), [1989] 1 S.C.R. 1378, a case relied on by the Crown, the Court was dealing withan application for a firearm prohibition order, and although noting that “the evidentiary requirements under [among others, a peace bondapplication] cannot be determinative of the issue”, the Court does lay out reasoning that I think is applicable to this case. Zeolkowskidealt with “all relevant evidence”, which the Court held means “all facts which are logically probative of the issue”, which could includehearsay evidence. The Court noted:

The general rule of evidence is that all relevant evidence is admissible. ...By using the phrase “all relevant evidence” (emphasis added), Parliament did not address the question of exclusionary rules. The effect of the exclusionary rules is left to the provincial court judge as part of the whole body of evidence on which the provincial court judge determines whether or not he or she is satisfied that the reasonable grounds exist. Frailties in the evidence are a matter of weight.

In the case, at bar, for example, the judge should properly consider what weight, if any, is to be given to the hearsay evidence. (See page 1386). [ 16 ] In Budreo , supra , at paragraph 53 , the Court observed that “...Although the “evidence” the judge relies on might include hearsay, a recognizance could only be ordered on evidence that is credible and trustworthy”. [ 17 ] The wording of s. 810.1 is clear: the evidence must establish that the informant subjectively fears “on reasonable grounds” that the defendant will commit a listed offence, and the judge must be satisfied “on the evidence adduced” that fear is reasonable, importing an objective element to the inquiry.

If that is met, the Court may then order the defendant to enter into a recognizance. [ 18 ] Thus, as I ruled on an interim ruling during the hearing, in looking at whether or not Cpl. Haswell had reasonable grounds for his concerns, I can accept hearsay evidence, in this case not for the truth of its contents, but as a basis for his belief.

In my view, the position of the corporal in signing the information is similar to the situation that a peace officer is in when he or she determines whether or not to effect an arrest, that is, does the officer have reasonable grounds to believe that an offence has been committed? By way of analogy, for a peace officer to make an approved screening device demand, that officer can rely on what he or she knows, and/or what he or she has been told; the test is if the officer subjectively believes what he knows or learns (see R. v. Nahorniak, 2010 SKCA 68 , and cases cited therein).

Thus, I ruled that it was entirely appropriate for Cpl. Haswell to look at the impugned e-mail from Ms. Perrot, (P-6), in assessing whether or not to commence these proceedings. It does not mean that what is in the e-mail in issue is true; I find that Cpl. Haswell believed it to be true. When Ms. Perrot later testified as to what her concerns were, basically repeating what was in the e-mail, her evidence was not hearsay, and it was assessed with a view of looking at the “evidence adduced” to see if that subjective fear of Cpl. Haswell was reasonable. BACKGROUND [ 19 ] Mr.

Nawakayas is a 43 year old Aboriginal man who has spent most of his life on the Red Earth First Nation, an isolated community approximately one hour northeast of Carrot River, Saskatchewan. He was the youngest of seven children, who were raised in poverty, in an atmosphere of violence and alcohol abuse. He has cognitive difficulties, and his literacy level is approximately grade four. He communicates primarily in the Cree language, although the probation officer who has been working with him, Ms.

Jenna Perrot, testified that he became more comfortable with her, as he got used to her, and she was of the view he came to a better understanding of the expectations and restrictions on his liberty under the original s. 810.1 order. [ 20 ] While he was in the penitentiary system, for reasons that will be described later, he was diagnosed with anti-social personality disorder, as well as with paedophilia. His level of risk for sexual recidivism was established as being high. Clearly, the Crown’s overall concern is that, as explained in the sentencing hearing of July 8, 2010 (P-3): Mr.

Nawakayas’ substance abuse and access to victims are leading external factors that contribute to his sexual offending and that’s one of the key factors I think the Crown is concerned about. The likelihood that he could re-offend, especially in an abusive nature or a sexual nature, when you combine that with his alcohol consumption, it’s very much a concern. (Page 20, transcript) [ 21 ] Mr.

Nawakayas’ criminal record contains 49 convictions between 1992 and 2011, of which there are 10 convictions for failing to comply with probation orders, eight convictions for breaking and entering, eight for mischief, five for theft under $5,000.00, four convictions for failing to attend Court, and four convictions for breaching a recognizance. [ 22 ] The most significant offences for which Mr. Nawakayas was sentenced, and which grounds, in conjunction with the other points raised above, raise concern respecting Mr.

Nawakayas’ management in the community, are set out in Exhibit P-2, transcript of sentencing proceedings held December 13, 2007. Mr. Nawakayas was being sentenced on guilty pleas for three separate offences under s. 151 of the Criminal Code , that being for touching for a sexual purpose a part of the body of three different girls, ages 8, 7 and 4 at the time. The matters came to light when, on January 19, 2007, a babysitter came into a room and saw Mr. Nawakayas with his hand near

the vagina of a 7 year old. When he gave a warned statement to the police respecting that, he confirmed that he did penetrate her vagina with his finger.

He then went on and volunteered that he had penetrated the 8 year old with his penis that morning, and also spoke of abusing each of those girls in the autumn of 2006. [ 23 ] In a subsequent conversation with the police, he told them that he had vaginally penetrated the 4 year old as well on January 19, 2007. [ 24 ] He admitted that, regarding the offences in the autumn of 2006, he had on one occasion taken the 7 year old to the woods near his home, removed her clothing, and digitally penetrated her with his fingers, after which he had sexual intercourse with her.

He then cleaned her and took her home. [ 25 ] He also admitted that he had taken the 8 year old into a field, removed her underpants and had sexual intercourse with her. After he had ejaculated, he cleaned her and took her home. [ 26 ] On a joint submission, Mr. Nawakayas was sentenced to a global term of four years incarceration, less his remand time, was given a s. 109 firearms prohibition, a DNA order, a lifetime prohibition under s. 161 of the Criminal Code from attending certain places, and was required to comply with the sex offender information registry. [ 27 ] On January 22, 2010, Mr.

Nawakayas was nearing completion of his sentence and appeared before a Provincial Court Judge in Saskatoon, representing himself, although there was an interpreter present to assist him if necessary (Exhibit D-1). The prosecutor informed the Court that Mr. Nawakayas had agreed to enter into a two year s. 810.1 recognizance, which he did that day, the recognizance being filed as Exhibit P-1. [ 28 ] On July 8, 2010, Mr.

Nawakayas pled guilty to a breach of that recognizance, under s. 811 of the Criminal Code , for one count of breaching that recognizance by consuming alcohol, it being noted that this was his first breach of a s. 810.1 recognizance. He was sentenced to a term of eight months incarceration, less approximately two weeks of remand time. [ 29 ] On August 4, 2011, Mr. Nawakayas was being sentenced for one count of breaching his recognizance by, in essence, changing his residence without approval of his probation officer, and for one count of breaching his recognizance by attending at a school yard.

This latter matter was a conviction after trial, the circumstances being that he had gone to a school gymnasium, and was in the school yard area when apprehended by police, apparently for the purposes of a wake. However, there were numerous children around, and he was not in the company of any of the listed individuals whom he was allowed to be with if he was in a school yard. The result of those transgressions was a total sentence of 22 months less remand time, for a global sentence of just over 18 months actual incarceration. [ 30 ] On July 19, 2012, Cpl.

Brian Haswell swore the information that brought this matter before the Court. The hearing was held in January of 2013, argument was made shortly thereafter, and it is before the Court today for decision. Mr. Nawakayas has been on a recognizance since August 2, 2012, having been released from custody about that time. EVIDENCE AT THIS HEARING [ 31 ] Cpl. Haswell explained that, in his capacity with the High Risk Offender Unit in Regina, he would consider someone at high risk after being convicted for a violent offence, and having been detained by the National Parole Board and held to warrant expiry date.

Typically, he would get a warrant expiry package from Corrections Canada, containing whatever information the parole officer included in that package, and he would also look at sentencing transcripts and police reports, would look at the index offence (in this case, the three convictions for sexual interference), generally review matters, and if he came to the conclusion that he thought it was appropriate to apply for the order, would institute the proceedings. [ 32 ] In this particular case, he testified that he looked at the e-mail from Ms. Perrot, the previous criminal record of Mr.

Nawakayas, reviewed the sentencing transcript of the index offences, and took into consideration the fact there had been three convictions for sexual interference in 2007, a prior conviction for assault in 2005, and the fact that while Mr. Nawakayas had been on the first recognizance (from January 22, 2010), he had been convicted for breaching it three times. He generally concluded that Mr. Nawakayas was not following conditions of the recognizance. He believed that Mr. Nawakayas was still in a “risky state of circumstances”. He came to the conclusion that Mr.

Nawakayas was a danger to re-offend sexually against a child, and thus instituted these proceedings. [ 33 ] I found Cpl. Haswell to be a credible and reliable witness. I find that he believes, subjectively, that Mr. Nawakayas is a risk. The Court needs to be satisfied that his subjective belief is objectively reasonable. [ 34 ] Cpl. Haswell testified, as noted earlier, that he had looked at various documents, including the e-mail from Ms. Perrot to Mr. Healey, the Regional Crown Prosecutor. Ms. Perrot testified, and gave further information respecting her concerns. [ 35 ] Ms. Perrot had supervised Mr.

Nawakayas for three separate periods of time. Based on the initial s. 810.1 order from January of 2010, she supervised Mr. Nawakayas from February 17, 2010 until June 19, 2010, the latter date being the date that Mr. Nawakayas was arrested and incarcerated for seven months for a breach. [ 36 ] Ms. Perrot testified that he was released from that on December 20, 2010, and she again supervised him until April 13, 2011, the latter date being the date he was arrested and was given the 22 month sentence for the other two breaches which show on his record.

He therefore was in custody until his release in August of 2012, at which point he signed the recognizance pertinent to this particular information. Thus, she supervised him from that period forward as well. [ 37 ] Dealing with the first supervision period in the first part of 2010, she testified that she initially had difficulty conversing with him, as his primary language is Cree. They would meet weekly, subject only to problems with the weather or sickness.

She indicated that, based on his level of cognitive functioning, she would go over the conditions of the recognizance with him in simple language, ask him to repeat what she said back in his words, and that he was able to do that. She said that he would occasionally get angry, as he was frustrated where he was having to live, because it was difficult to find a suitable placement that did not have children present in the house. Eventually, he was placed with two bachelors, although that placement did not work out. [ 38 ] After Mr.

Nawakayas was released on December 20, 2010, he was no longer able to reside at that residence, as there was a child present. He was therefore moved to a new residence, although that turned out to be a difficult placement, as that individual lived at the Natacam area of the reserve, approximately four miles from the main reserve. Further, as that individual’s primary language was English, and Mr. Nawakayas was more conversant in Cree, they had difficulty communicating. [ 39 ] In April of 2011, Mr. Nawakayas had moved on his own initiative to his sister’s residence, and Ms.

Perrot advised him that he had to move back to his previous, authorized residence. She phoned the police to report what Mr. Nawakayas had done, resulting in his arrest. That led to the breaches that resulted in his incarceration until August of 2012. [ 40 ] Ms. Perrot has supervised Mr. Nawakayas since his release on August 9, 2012, and has reported that supervision has not been that problematic, although there are still issues with a suitable residence for Mr. Nawakayas. More by virtue of the fact that there were no other options than by approving that residence, Ms.

Perrot allowed him to live with his sister where he is currently residing. [ 41 ] In her view, structure is helpful to Mr. Nawakayas, “to an extent”, but because of the restrictions on his residency, there are real problems for Mr. Nawakayas, as he often ends up residing with people he doesn’t know and has no real connection with. On the other hand, Ms. Perrot noted that at least two of Mr. Nawakayas’ relatives, one being his sister whom he is now living with, don’t see him as a threat, and one of them believes that the charges against him may have been made up. [ 42 ] In Ms.

Perrot’s view, based on his past offences for abuse of three young girls, and the fact that he has been breached on three separate occasions on his first recognizance from January of 2010, Mr. Nawakayas needs strict conditions to be put in place. When asked if he was better now than he had been in the past, she indicated that he is somewhat, but not very much, pointing out that because she has a stronger relationship with him, based on knowing him for some time, they are able to communicate better, but Mr. Nawakayas still gets upset at times.

[ 43 ] She listed her concerns of him being released in the community as his low cognitive function, the fact that he breached his 2010 recognizance so soon after being placed on it, that he is unhappy with his residence, that while he would often acknowledge with her what his conditions were, and promise to comply with them, his actions spoke otherwise, and that there were so many unsupervised children around the Red Earth community. In particular, she had concerns respecting the geography of the area, noting that Red Earth is in an area full of muskeg and water, and that it would be a simple matter for Mr.

Nawakayas to lure a child away into an inhospitable environment. It is noted that is essentially what he did with at least two of his index offences. [ 44 ] Further, Ms. Perrot had concerns respecting his use of alcohol on a past breach, although she acknowledges it is not as big a concern now as it was, a problem being that his friends continue to drink. [ 45 ] She noted his risk factors as being, among others, alcohol use, transience, lack of education and employment and employment opportunities, his criminal record, and she feels these are continuing problems with Mr. Nawakayas and his situation.

She testified that she conducted a risk assessment that determined that there was a 97% chance that Mr. Nawakayas would re-offend. [ 46 ] In cross-examination, it became apparent that Ms. Perrot had a great concern with Mr. Nawakayas being in public, that is, walking around, as with the number of small children on the reserve, it is inevitable that he will have contact with those children. POSITION OF COUNSEL [ 47 ] Mr. Healey argues that Mr. Nawakayas remains a major threat. He relies on the record, and in particular what Mr.

Nawakayas did to the three young girls, and what he has done since then as being supportive of the grounds for making an order. [ 48 ] Ms. Newman takes the view that the index offences under s. 151 were six years ago, and that the breaches themselves occurred one and a half and two years ago. She argues strenuously that there is no proven link between his alcohol consumption and his sex offending, essentially arguing that just because he was on an 810.1 recognizance in 2010 doesn’t necessarily mean he has to be on an 810.1 recognizance in 2013.

DECISION [ 49 ] The Crown has met the onus of establishing, on a balance of probabilities, that the order sought should be made. As was the case with Cpl. Haswell, I found the evidence of Ms. Perrot to be credible, reliable, and compelling. I am satisfied by the evidence adduced that the informant has reasonable grounds for his fear. Although the index offences are somewhat dated, and in that sense one could argue that his risk has diminished, it is also true that Mr. Nawakayas has spent a considerable portion of the time since those offences in jail.

Further, the evidence is clear and compelling that the risk remains. In any event, the fact of the index offences having occurred at all is not determinative; one can be subject to a s. 810.1 recognizance in the absence of a criminal record, and the fact of the index offences is but one factor to be considered. [ 50 ] Pursuant to s. 810.1 (3.01), as the evidence is clear that Mr.

Nawakayas has previously been convicted of a sexual offence in respect of a person under the age of 16 years, this recognizance shall be for a period of two years. [ 51 ] Looking at the conditions to be imposed, although I accept the genuineness of Ms. Perrot’s concerns that there are children everywhere on the Red Earth First Nation, and thus Mr. Nawakayas poses a risk to children by dint of even walking around, it would be wrong to restrict his movements to that extent.

As referred to earlier, there must be a balance struck between his liberty rights, and the need to protect children. [ 52 ] I also think that there is merit to Ms. Newman’s argument that there is no need to repeat clauses in this recognizance that are already in place. For example, Mr. Nawakayas is already subject to a lifetime s. 161 prohibition order, thus, she argues, what good is

adding it to any new recognizance I might impose now? The counter-argument to that is that it should be made clear, especially to an individual who suffers from some cognitive impairment, precisely what he can or cannot do. [ 53 ] Keeping those factors in mind, I order the defendant to enter into a $200.00 non-cash recognizance under s. 810.1 in Form 32 with the following conditions: Keep the peace and be of good behaviour. Appear before the Court when required to do so by the Court.

That he shall report, in person, on March 7, 2013, immediately after Court, to the chief probation officer or his designate in Carrot River, Saskatchewan, and continue to report thereafter at the time and place as directed by the probation officer. That he shall not speak to or be alone at any time with any person under the age of 16 years, unless he is under the direct and continual supervision of an adult person who is familiar with Mr. Nawakayas’ criminal record and the fact of this recognizance.

That he shall reside at a residence specified by the probation officer and shall not change that address without the prior approval of the probation officer. That he shall remain in his specified residence between the hours of 11:00 p.m. until 7:00 a.m. the following morning, unless he has prior dated and written permission from the probation officer to be out of his residence during any period of that time frame.

That he shall go to the door of his specified residence and identify himself to any peace officer or probation officer who may go to his specified residence between the hours of 11:00 p.m. to 7:00 a.m. to see if he is in his residence. That he shall not go to a public park, public swimming area, day care centre, school ground, or playground. That he shall not leave the Province of Saskatchewan without permission of the Court. [ 54 ] I have considered, and declined to make, an order prohibiting Mr. Nawakayas from consuming alcohol.

Whereas I appreciate that the use of alcohol may decrease his ability to make wise choices generally I am not satisfied that his drinking, per se , leads inexorably to his offending behaviour, and he seems to have shown improvement in his ability to handle alcohol. The main concern I have is that he never be alone with young children. In any event, this recognizance can always be varied, and clauses can be added, deleted, or amended as the circumstances require in future. Dated at Carrot River, Saskatchewan, this 7 th day of March, 2013 B. Morgan, J