Her Majesty the Queen - v. -, 2016 SKPC 031

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 031 Date: February 29, 2016 Information: 24484253 Location: Fort Qu'Appelle _____________________________________________________________________________ Between: Her Majesty the Queen - and - Marvin Obey Appearing: Roger DeCorby For the Crown Andrew Hitchcock For the Accused DECISION B. TOMKINS, J I. INTRODUCTION [ 1 ] On July 18, 2013, Mr. Obey was convicted of assault with a weapon contrary to

section 267 (

a) of the Criminal Code . Upon his conviction, the Crown indicated its intention to commence proceedings pursuant to

Part XXIV of the Criminal Code to have Mr. Obey designated a dangerous offender. [ 2 ] Pursuant to

section 752.1, the Crown applied for an order remanding Mr. Obey for assessment. The defence opposed the Crown’s application on the basis that Mr. Obey’s offence was not, in its circumstances, a serious personal injury offence for purposes of

section 752. I gave my decision [1] in that matter on January 29, 2014. I concluded that Mr. Obey’s offence was a serious personal injury offence and ordered the assessment.

[ 3 ] Upon receipt of the Assessment Report, the Court heard evidence on the Application from November 25, 2014 until December 3, 2014. The matter was adjourned for argument on the issue of designation but in the meantime, counsel for the defence filed Charter notice alleging that sections 753(1) and 753.01, in combination, were unconstitutional and contrary to the Charter . That matter was argued orally and in writing; my decision [2] was given July 15, 2015.

I found that the Charter issues raised were beyond the jurisdiction of this Court as hypothetical and premature. [ 4 ] By this time, counsel agreed that, given the passage of time since evidence was last heard and in light of certain decisions that had issued in the interim, the Court would allow either or both parties, at their election, to call further evidence. That evidence was provided late in November 2015. Following argument on December 17, 2015, I reserved my decision on the matter. This is my decision. II. MR.

OBEY’S PERSONAL CIRCUMSTANCES [ 5 ] In the course of this hearing, I was given a great deal of information about Mr. Obey through oral evidence and various reports. I was also provided a detailed Gladue report which provided additional information and gave context to other information that I had received. From this evidence, it is apparent that Mr. Obey’s personal circumstances are, sadly and as is so frequently the case for persons subject to

Part XXIV applications, tragic. [ 6 ] Mr. Obey was born February 27, 1978 to Shirley Obey and Fred Stonechild, the fifth of their six children. In 1989, when Mr. Obey was 11, one of his older brothers was killed in a vehicle accident. Nine years later, another brother committed suicide. These two deaths have had a lasting and persisting impact on Mr. Obey. [ 7 ] Mr. Obey’s remaining siblings – two sisters and one brother – are all alive, although his contact with them has been limited by Mr. Obey’s lifestyle, including on-going substance abuse and periods of incarceration.

One sister, Olivia, remains his primary support in the community. [ 8 ] All of Mr. Obey’s great-grandparents and his grandparents on his mother’s side attended residential school. They carried the trauma of their experience into adulthood. Mr. Obey’s grandfather was said by his son, Mr. Obey’s Uncle Robert, to be “an extremely violent man who abused my mother and all of us kids”; this includes Mr. Obey's mother who was also subjected to horrific sexual abuse.

She was heavily into pills and alcohol by the age of 14 and shortly thereafter became involved with Fred Stonechild, a man 20 years her senior. [ 9 ] On his father’s side, the circumstances are similar. Both paternal grandparents attended residential school, as did all of their 14 children, including Mr. Obey’s father Fred. His Aunt Isabelle says they all suffered abuse during their times at residential school and the consequent trauma has affected their adult lives. Mr. Obey’s father became addicted to alcohol. [ 10 ] Mr.

Obey described his childhood as essentially chaotic as his parents both battled substance use and were violent. Their circumstances were unstable. Mr. Obey recalls that his home was a “party house” and he witnessed numerous instances of violence between adults in the house. In addition, there were frequent incidents of violence among the children, many directed specifically at Mr. Obey by his brothers. He said that this was his experience of conflict resolution. It would appear that these “lessons” have continued to influence his behavior even until now. [ 11 ] When Mr.

Obey was about ten years old, his parents separated. His father quit drinking but his mother wouldn't or couldn’t. Mr. Obey and his brothers stayed with their father on the family farm at Muscowpetung First Nation, while his mother took his sisters to a nearby town. It appears his father was able to provide a relatively stable home, although his father's anger was not fully dissipated. [ 12 ] It was while visiting his mother, where there was essentially no supervision, that Mr. Obey began drinking. The violence and alcohol abuse at his mother's home was such that Mr.

Obey, in a Pre-Disposition Report written when he was not quite 16 years old, said that his father would come to pick him up "if it gets too horrible". [ 13 ] In this environment, Mr. Obey attended elementary school. He reported significant challenges with most subjects and difficulty focusing and following instructions. As he progressed to high school, the challenges overwhelmed him. He was expelled at the age of 16 due to abuse of substances and repeated conflict with one of the teachers. While he subsequently attempted upgrading, he has yet to complete an upgrading program. [ 14 ] Mr.

Obey stayed with his father at the family farm until his father’s death in 2005. During this time and after, he has had occasional casual and temporary employment in labour-related jobs but has primarily depended on social assistance benefits. [ 15 ] Mr. Obey’s first relationship began when he was 18 and lasted, on an on-again/off-again basis, for about eight years. This was a volatile relationship marked by substance abuse and violence, a legacy of their dysfunctional upbringings, Mr. Obey said. There are two children of that relationship, both of whom were put in the care of the Ministry of Social Services. Mr.

Obey does not have contact with either of them. [ 16 ] More recently, for about the last five years, Mr. Obey has been in a relationship with Tanya Cappo and they were living together at the time of the predicate offence. Ms. Cappo introduced Mr. Obey to opiates, which he used together with alcohol. They have one child who was born during Mr. Obey’s remand in regard to this application. The child is presently in foster care. Mr. Obey’s partner is interested in reconciling with him if and when he is released.

In the meantime, she is reported to be participating in a methadone treatment program. [ 17 ] Primarily as a result of the impact of residential school abuse on his parents, grandparents and great-grandparents, dysfunction is profuse through Mr. Obey’s own life and those of members of his extended family.

[ 18 ] Mr. Obey's substance abuse started when he was very young and visiting his mother. He was 12 years old. By the age of 14 or 15, Mr. Obey had graduated to hard liquor and he then moved on to solvents. His difficulty with substances became even more significant when Mr. Obey was 18 or 19 years old and his brother committed suicide. He said that he didn't know how to grieve and "turned to drinking whenever he had cash". He said at about this time he started committing criminal offences to support his addictions. His problem with alcohol continues to this day.

Although he has been in several treatment programs, he has always relapsed and ultimately been returned to custody. [ 19 ] Mr. Obey’s counsel reminded us all, quite properly, that: His criminal record tells you some of the bad things he’s done, but it doesn’t tell you that he loves and he is loved. You know that he has inflicted pain on people. He’s also had pain inflicted on him. He’s been the perpetrator of violent crimes; he’s also been the victim of violent crimes. [3] III.

THE PREDICATE OFFENCE [ 20 ] The conviction that led to this application was one for Assault with a Weapon that occurred on March 15, 2013 in Fort Qu’Appelle, Saskatchewan. At that time, Mr. Obey lived in a common law relationship with Tanya Cappo. They resided in Fort Qu'Appelle with Ms. Cappo's brother, Arthur Campbell and Ms. Cappo's daughter, Celeste. [ 21 ] On the day in question, Mr. Obey, in company with Ms. Campbell, went out in town and he became intoxicated.

When they returned home, they went to their room in the basement of the house and commenced arguing. [ 22 ] Celeste, who was in her bedroom, heard this. She was upset by things she heard Mr. Obey say to and about her mother. She told Mr. Obey to stop talking to her mother in that way and to get out. At or shortly after the time that Celeste intervened, she and her mother went upstairs and continued talking at the landing. [ 23 ] Mr. Obey called to them. Celeste opened the door and saw Mr. Obey on his way upstairs. She pushed him downward; he lost his balance but did not fall. Mr.

Obey came upstairs and Celeste continued chastising Mr. Obey and at some point, he raised his fist to her. [ 24 ] In the meantime, Mr. Campbell was in his room on the main floor getting ready for bed. He heard yelling; specifically, he heard Celeste yelling for someone to "Get out". He heard a commotion and then a heavy bang like someone falling down stairs. Hearing this, he jumped up and went to see what was going on. [ 25 ] He saw his sister, Tanya, Mr. Obey and Celeste. Tanya was yelling, trying to calm the situation and Celeste was yelling as well. Mr.

Obey raised his fist to Celeste as if to "nudge her or to swing a punch" and at this point, Mr. Campbell went to the group and challenged Mr. Obey. [ 26 ] Mr. Obey then took a backhand swing at Mr. Campbell but, according to Mr. Campbell, "stopped himself". Some or all of Celeste, Tanya and Mr. Campbell backed away as he swung. [ 27 ] Mr. Obey then stood with his hands at his sides and at this point Mr. Campbell saw that Mr. Obey had a large butcher knife in the hand that he had swung at him. Mr. Campbell did not see the knife in Mr.

Obey's hand or at all until immediately after he swung his left arm. [ 28 ] Celeste, on the other hand, said that she first saw the knife "as soon as he swung it". It is not clear whether, by these words, she meant that she first saw the knife while he swung it or after it had been swung. [ 29 ] I was satisfied that Mr. Obey had the knife in his hand when he swung at Mr. Campbell. I was also satisfied that Mr. Obey's swing did not make contact with Mr. Campbell, though Mr. Campbell was within arms' length of him.

He said that the swing came "pretty close" and "fairly close" to him; it was close enough that he thought he could have been hit had he not stepped back. [ 30 ] After this, Mr. Campbell went to look for a golf club - presumably to protect himself. This did not take long but by the time he returned, Mr. Obey had left the house. [ 31 ] Mr. Campbell testified and I accepted his evidence that Mr. Obey intentionally “stopped himself” and did something that prevented contact. [ 32 ] The police were called and Mr. Obey was arrested about two blocks away within a short time.

He has been in custody for this offence continuously since that date. IV. MR. OBEY’S CRIMINAL HISTORY [ 33 ] Mr. Obey has an extensive criminal history. Including the predicate offence, he has seven convictions as a young person and 40 as an adult. Of these, 14 are offences of violence for which he was convicted between January 1998 and July 2013 (all of them as an adult), as follows:

• nine offences of assault (section 266); • three offences of assault with a weapon (section 267(a); • one offence of assault causing bodily harm (section 267(b); and • one offence of sexual assault (section 271). [ 34 ] In addition, also related to violence, he has six convictions for threatening. [ 35 ] Details of Mr. Obey's assault-related offences are as follows: A. April 10, 1996 - Assault - Two Counts [4] A man jumped in front of a vehicle that Mr. Obey was driving. Mr. Obey exited the vehicle and confronted the man. Another passenger from the vehicle calmed Mr. Obey and they left the scene.

Shortly afterward, Mr. Obey drove his vehicle into the back of another vehicle in which the man was a passenger, driving it onto the sidewalk. Mr. Obey and his passengers left but returned. One of the passengers struck the man over the back of the head with a beer bottle and he ran into a nearby apartment. Mr. Obey and one of his passengers pushed their way into the apartment where Mr. Obey's passenger struck one of the residents over the head with a bottle. Mr. Obey hit another resident in the face, breaking his glasses. He also hit the other resident a couple of times. Mr. Obey was intoxicated at the time.

He was reported to say that he had only vague recall of the incident but did recall it was precipitated by disrespectful remarks to Mr. Obey's sister and racist remarks to his group. Sentence: 9 months CSO B. September 8, 1996 - Two Counts [5] This incident also occurred when Mr. Obey was intoxicated and when he perceived racist actions by the victims. Mr. Obey and his brother were invited to a campground where a group of teenagers were having a party. Mr. Obey's brother drove and, on arrival, stopped over the camp fire and spun their tires, throwing sparks onto the cars and people nearby.

The victim tried to escape in his car but Mr. Obey's brother pursued him and rammed his vehicle. Mr. Obey got out and started punching the victim in the head and body. After ramming the victim's vehicle a few more times, Mr. Obey's brother also got out and hit the victim. Mr. Obey said that after they were invited to the party, his brother convinced him that the invitation was offered because they were First Nations men and so the partiers wanted them to come only so they could make fun of Mr. Obey and his brother. Nothing in the information provided indicates whether there was any basis for Mr.

Obey's brother's belief in this respect. Sentence: 9 months CSO concurrent to Item A sentence C. November 27, 1998 - Assault & Assault with a Weapon Mr. Obey was at his sister and brother-in-law's home. He and his brother-in-law argued and the argument continued between Mr. Obey and his sister. In the course of their argument, he pushed her into the walls and attempted to strike her with an empty liquor bottle. He threw her toward the stove and kicked her between the legs. When the brother-in-law intervened, Mr. Obey hit him with the empty liquor bottle.

The victim required stitches to close the wound on his head. Mr. Obey was intoxicated at the time of these incidents. Sentence: 1 year CSO D. May 15, 1999 - Assault On this occasion, Mr. Obey said he "lost it" and assaulted his brother-in-law. He punched the victim in the head and kicked him while he was on the ground. The victim sustained a broken nose, swollen eyes and bruises to his chest and face. Mr. Obey was sober when this assault occurred. Sentence: 3 months CSO E. April 26, 2000 - Assault On this occasion, Mr. Obey bit his common law wife on the cheek, leaving a noticeable welt.

He was intoxicated at the time. Sentence: 3 months CSO concurrent to Item C sentence F. Summer 2000 - Assault Causing Bodily Harm Mr. Obey and his common law wife had a baby, only a few months old at the time of this offence. Mr. Obey, frustrated by the baby crying inconsolably, was observed to shake her on two occasions. In September that year, the baby was taken to hospital and found to have fluid collecting inside her cranial cavity and a linear skull fracture. These injuries were found to be consistent with shaken baby

syndrome. Fortunately, the baby's injuries, at the time still uncertain, appeared much less severe than is often the case with shaken baby syndrome and the prognosis was good. Mr. Obey was apparently sober at the time of these events. Sentence: 1 year Custody G. February 2002 - Assault The victim of this offence was again Mr. Obey's brother-in-law. While visiting at his sister and brother-in-law's residence, Mr. Obey began swearing at his brother-in-law and challenged him to a fight. The brother-in-law declined. Mr.

Obey became more agitated and pushed his brother-in-law up against the cupboards and punched him repeatedly. Mr. Obey was intoxicated at the time of these events. Five children in the home witnessed this and were very upset by what they observed. Sentence: 3 months custody H. April 29, 2003 - Assault Mr. Obey was in a vehicle with various members of his family when he and his father had an argument. Mr. Obey asked his father for money and his father gave him some but Mr. Obey threw it back. He punched his father in the back of the head. Mr. Obey was restrained by a member of the family.

After making threats against his father, Mr. Obey exited the vehicle. Mr. Obey's father was not injured. Sentence: 8 months custody I. December 14, 2004 - Assault This incident was another assault on the same brother-in-law who was the victim of two of the assaults that have been set out above. He reported that Mr. Obey had come to his home and punched him in the face a number of times. While there were no long-standing injuries, the victim was observed to have a swollen lip that was bleeding. Mr. Obey was extremely intoxicated. Sentence: 5 months custody J.

Sexual Assault - April 16, 2005 After consuming marijuana and alcohol with Mr. Obey, the victim went to her bedroom and fell asleep with her clothing on. She woke to find Mr. Obey pulling down her pants. When she resisted, Mr. Obey slapped her repeatedly. Eventually he was able to penetrate her. She escaped. Sentence: 3 years custody K. January 20, 2011 - Assault with a Weapon Mr. Obey was home with his common law wife, their children and his nieces. Mr. Obey became angry at one of his nieces, not because of anything that she did but because he held animosity for her father.

The wife attempted to distract him and asked him to stop. He pulled two beer attached to a plastic ring from the fridge and swung it behind him at the victim. The cans struck her face. He also pushed her around after this occurred. Fortunately, she did not sustain significant injuries. Mr. Obey was intoxicated at the time. Sentence: 16 months, 5 days custody L. March 15, 2013 - Assault with a Weapon This is the predicate offence which is detailed earlier in this decision. Sentence: Subject of this decision V. DR. HOLDEN'S ASSESSMENT [ 36 ] Dr. Roger Holden provided an Assessment Report ordered pursuant to

section 752.1 in January 2014. He is a respected consulting psychologist who has worked extensively and for many years primarily with violent offenders, both in his private consulting practice and by employment for 17 years with the Correctional Service of Canada (CSC). Dr. Holden has provided assessments respecting many offenders against whom

Part XXIV proceedings have been taken in Saskatchewan. His qualifications to give expert evidence in this proceeding were admitted. [ 37 ] Dr. Holden met with Mr. Obey at length on March 13 and 14, 2014 and thereafter made his assessment and provided his report dated April 30, 2014. [ 38 ] Dr. Holden's assessment is fundamentally one of his structured professional judgment. In this, he combines his clinical impression with risk factors that have been consistently identified in individuals who are prone to violent crime. He administers tests to identify actuarially those risk factors which may or may not influence the individual's behaviour and then applies his judgment as to

whether those factors are, in fact, present, whether there are other factors not identified in the testing instrument and how all of the factors present might weigh in the individual's case. [ 39 ] Dr. Holden assessed Mr. Obey to have an antisocial personality disorder and impulse control disorder, both comorbid with alcohol abuse or alcohol dependence disorder. Antisocial personality disorder is very common among violent offenders but impulse control disorder, he said, is much more rare. He described it in his evidence [6] as follows: We all have impulses to act violently.

It's part of the human condition, and that's why we spend so much time educating our children not to do that. So that aspect of Mr. Obey, perhaps, was missing. I don't know. We get to the point then when we have an individual who builds up on the base of a lot of unresolved issues associated with his childhood and early adolescence. He builds up frustrations through everyday living, and these just essentially explode out of him, so that's probably, as far as I can see, is an impulse control issue.

It's like "I need to do this." I need to - I have a strong compulsion even though they may not be verbalized, and it may not be intellectualized at that level. It's just a feeling. He has a few drinks and bang, he engages in violent behaviour. I call that an impulse control disorder. [7] [ 40 ] Dr. Holden went on to say: So it's no surprise to me that that is still part of his functioning because he has never had a structured opportunity to deal with it. The intervention is a challenge because it's not just one issue with this person.

It's several issues, all of which produce the behaviour: the general antisocial attitude; the failure to accomplish, you know, generally accepted developmental goals in terms of skill acquisition and job and income acquisition, settle down with, you know, a predictable family life. So it's a complex of various factors. The impulse control issue, I think, is an important part of the intervention. Is it a tough nut to crack? Yes. Well, so is his drinking, so is his criminality. Is it impossible to crack?

No, I don't think so, but I don't think he's even been given an opportunity to, in a structured way, to try to address his issues. He may have been given an opportunity to address his alcoholism, but on its own, that wouldn't do the trick because that becomes his fail-safe, fall-back option. When he gets frustrated and unhappy, he drinks and then produces the cycle. So it's not obviously as simple as that but I think that the impulse control problem is for me quite obvious in him, unusually so in comparison to the vast majority of people that I've interviewed. [8] [ 41 ] After testing, Dr. Holden assessed Mr.

Obey's risk to offend violently in the future to be high. This opinion was rooted in his assessment of Mr. Obey against historical risk factors, clinical risk factors and factors regarding future risks. [ 42 ] In particular, he concluded Mr. Obey's risk was high due to his history of problems with: • violence; • antisocial behaviour; • relationships; • employment; • substance use; • personality disorder; • traumatic experiences; • treatment and supervision response; and • insight.

A history of problems with violent attitudes was thought to have "some bearing on his potential to behave violently in the future" but Dr. Holden did not find this to raise Mr. Obey's risk to high. [ 43 ] The only clinical factor that influenced Dr. Holden's opinion was problems with insight. [ 44 ] For purposes of assessing future risks, Dr. Holden asked Mr. Obey to take some time to consider and provide information about how he would conduct himself if he were to be released. This information allowed Dr. Holden to assess Mr.

Obey against these identified future risks: • professional services and plans; • living situation; • personal support; and • treatment or supervision response.

[ 45 ] Mr. Obey's response, in Dr. Holden's opinion, showed that Mr. Obey did not understand the nature and severity of the challenges he faces and that his plan would not allow him to succeed in the community. In particular, his plan included too little structure, inadequate proposals regarding substance abuse and inconsistent proposals regarding residence and employment.

Perhaps of greatest concern, he did not recognize "the relationship between his mental disorders, his substance abuse and his subsequent violent acting out, and did not indicate any plans to investigate this aspect of his functioning further[.]" [9] [ 46 ] Further, Dr. Holden expressed doubt about Mr. Obey's potential for compliance with programs if he is released into the community. Dr. Holden believes he will have difficulty accessing appropriate services, especially as he does not have strong personal support. [ 47 ] Finally, Dr. Holden believes Mr.

Obey does not have the self-discipline to refrain from using substances. [ 48 ] Thus, applying his professional judgment and considering all factors - historical, clinical and future - Dr. Holden is of the opinion that, absent serious treatment, Mr. Obey's risk to reoffend violently is high. He said Mr. Obey requires "a highly structured and long-term program, which he will have to conscientiously commit himself to. However, I believe if he does so, there is a reasonable possibility of the eventual control of his risk in the community." [10] [ 49 ] Dr. Holden also considered Mr.

Obey's risk to reoffend sexually, in light of his conviction for sexual assault. During his employment with CSC, Dr. Holden developed three programs for sex offenders, one general and two that are specific to Aboriginal sex offenders. While he has worked with and provided assessment reports for various offenders, he apparently has particular expertise with sex offenders and said that they would constitute about one-third of offenders for whom he has completed

Part XXIV assessments. [ 50 ] Whereas CSC concluded that the sexual assault committed in 2003 was more indicative of a tendency to violence than to sexual offending, Dr. Holden did not agree. He found that Mr. Obey is at high risk to perpetrate sexual assaults in the future. This opinion, arising from the 2003 conviction, is based at least in part on the nature of the offence, his denial of the offence and the fact that he did not participate in recommended sex offender programming. [ 51 ] As to treatability, Dr.

Holden wrote: As noted above, treatment efforts up to this point have not been at all successful and his prognosis, unfortunately, in my opinion, regarding successful treatment outcomes is poor. [11] - and - In my opinion, interventions would likely take many months of significant commitment on Mr. Obey's part, but engaging in therapy, attending alcohol treatment programs and keeping a full-time job would not be impossible, in my opinion, if he were committed to do so. [12] [ 52 ] Dr. Holden supplemented these discouraging conclusions in his oral evidence.

He said, notwithstanding his reservations, "it's reasonable enough for me to say give - let's give the man a go". [13] He based this view on: The way he presents, his intelligence, the fact that his incarceration will dry him out, hopefully, his recognition that he has issues he needs to deal with even though he still presents as a very untreated person, the fact that he hasn't been treated in my opinion, in any meaningful way, the fact that he's at a crossroads in his life right now regarding whether he wants to continue to have these kinds of hearings and potential indeterminate sentences or whether he wishes to become less involved with the criminal justice system.

So there is a whole variety of factors which add up for me to say . . . for this man, there is a chance. Is it a huge one? Is it an absolute go? No. It's - he's a high risk. His behaviour speaks for itself. Is it to the point where it's totally unlikely? Absolutely not. To happen, that he'll never change? No, I wouldn't say that. I would, at least, give him the opportunity to work with me if I had the opportunity to work with him.

I would have some optimism that he might change but it wouldn't be, "Oh, yeah, I'm going to bet money on it" because he is high risk. [14] - and - So it's not - I guess it's a matter of the

interpretation of the word "reasonable". For me, it's reasonable, but not absolute. Whether that translates into legal reasonable or not, I don't know. [15] - and later -

It's like, whether the word "reasonable" fits that for you. It's a reasonable bet for me to try to involve this man in further programming. And so that's why I concluded he was a long term rather than dangerous. [16] VI. DR. NICHOLAICHUK'S ASSESSMENT [ 53 ] Dr. Terry Nicholaichuk provided a psychological assessment of Mr. Obey on behalf of the defence. Dr.

Nicholaichuk is a respected consulting psychologist who has worked extensively and for many years primarily with offenders, both in his private consulting practice and by employment at the Saskatchewan Hospital in North Battleford and at the Regional Psychiatric Centre in Saskatoon. Dr. Nicholaichuk has provided assessments respecting many offenders against whom

Part XXIV proceedings have been taken in Saskatchewan. His qualifications to give expert evidence in this proceeding were admitted. [ 54 ] Dr. Nicholaichuk met with Mr. Obey and thereafter made his assessment and provided his report. [ 55 ] Dr. Nicholaichuk based his assessment of Mr. Obey's risk for re-offending upon the results of three actuarial tests. The result of the LSI-R indicated Mr. Obey's risk for any type of criminal behaviour at 61% or greater within one year after release. This result took into account and was based on Mr.

Obey's criminal record and problems in the areas of: • education and employment; • financial stability; • anger; • alcohol use; • leisure and recreation; • emotional problems; • poor attitude toward convention; and • difficulty forming successful and supportive intimate relationships. Mr. Obey's social environment, lack of suitable housing and lack of employment opportunities also contributed to the assessed result. [ 56 ] Dr. Nicholaichuk also administered the Violence Risk Scale (VRS) which is designed to assess both historic and changeable factors. Mr.

Obey's score indicated that there was a 50% chance that he would reoffend violently within 4.4 years of release. This risk assessment considered Mr. Obey's chaotic upbringing, lack of effective community support, substance abuse and inability to abide by conditions of release on previous occasions. Also relevant are his pro-criminal attitude and his comfort with the use of violence and weapons. [ 57 ] Dr. Nicholaichuk also concluded that Mr. Obey does not understand the gravity of his situation or of his problems. [ 58 ] Dr.

Nicholaichuk also administered the Static 99-R, a scale specifically designed to assess an individual's risk for sexual violence, assessed at the time of the commission of the offence and adjusted for age. Mr. Obey was placed at 3.2% for sexually reoffending over a period of five years and 2.6% over a period of ten years. Further, Dr. Nicholaichuk found nothing in Mr. Obey's history which showed an interest in paraphilic [17] sexual activity; this was important as it distinguishes Mr. Obey from offenders who continue to commit sexual crimes in their later years.

He said those offenders will be expected to have paraphilic interests. [ 59 ] Thus, Dr. Nicholaichuk found no empirical basis for an assertion that Mr. Obey is at high risk to commit further sexual offences. In this regard, Dr. Nicholaichuk differed from Dr. Holden. [ 60 ] Dr. Nicholaichuk, who has years of experience and expertise in the area, also tested Mr. Obey for learning disorders and found that he has Attention Deficit Hyperactivity Disorder (ADHD). Dr.

Nicholaichuk believes that this diagnosis is significant as one of the major features of ADHD is impulsiveness and one of its consequences is difficulty learning from experience. Both of these, he said, would appear to directly affect Mr. Obey. These would be expected to impair Mr. Obey's ability to benefit from correctional programs and to function in the community. The disorder is treatable with medication. [ 61 ] As to treatability, Dr. Nicholaichuk concluded: In

summary, Mr. Obey is an offender with an extensive history of alcohol related non-violent and violent offences. He is an offender with a significant alcohol addiction which played a significant role in precipitating the predicate offence. If he continues to drink, new criminal offences of some sort are likely. In spite of his history, he has yet to receive a significant, closely supervised, community release.

Although he has not been amenable to community supervision in the past, there are some indications that his identification with criminal peers may be changing and that he is now prepared to more seriously address the many needs which are contributory to his violence. That his motivation to change is likely due to the sentence he now faces does not mean he won't be successful. He cannot be considered to be a treatment failure because he has yet to receive an intervention of sufficient intensity and duration. Nor has the likelihood of a learning disability been taken into account.

If the disability is addressed, he may become more responsive to

treatment. [18] VII. MR. OBEY'S UNSWORN STATEMENT [ 62 ] Mr. Obey did not testify in these proceedings but he did make an oral statement at the conclusion of oral arguments. I was impressed by the thoughtfulness, respect and insight in his remarks. [ 63 ] Essentially and importantly, he said that he had listened carefully to the evidence and that he had learned a lot. He said: I know there's a lot of issues with - with alcohol in my life, and - and I couldn't quite understand that.

Like everybody around me, I thought it was a way of life, and I thought it was just a coping method and here I was thinking it was, you know, the right thing to do to - to eliminate - to alleviate myself from whatever is bothering me, like coping methods or whatever it is, you know. Anger issues, all sorts of issues, you know. Barriers like seeking help and not provided with proper travel and stuff. You know, these are all barriers, and I recognize everything, you know.

I spent a lot of time thinking about my actions and what kind of a person, you know, I was viewed as. - and - . . . no matter what, I'm - I'm still going to keep trying - keep trying with whatever I do, you know, no matter where I end up, incarcerated or not. I'm still going to try. - and - This is the turning point, you know. - and - . . . there's also, you know, the fact that I've got to wait until I'm sentenced to also seek that help and guidance from elders again, through proper programming and stuff like that.

And right now, I'm willing to go through whatever I can to - to change myself, my thinking, my impulses, my [ indiscernible ] patterns, you know, that I got - got to deal with the issues. [19] VIII. RELEVANT LAW [ 64 ] The issues before me are, first, whether Mr. Obey will be declared a dangerous offender, a long-term offender or neither and second, what will be a fit sentence for his offence. My decision is guided by the provisions of

Part XXIV of the Criminal Code and also by reference to relevant principles. [ 65 ] The provisions of the Criminal Code relevant to the Crown's application are these:

Section 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 [or]

(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 otherpersons of his or her behaviour[.] 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 ofimprisonment for a term of two years — and order that the offender be subject to long-term supervision for a period that does not exceed10 years; or (

c) impose a sentence for the offence for which the offender has been convicted. Section 753(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by theevidence 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. Section 753(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 theapplication 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. [66] There is extensive case law from which various principles regarding the application of these sections can be drawn. These were summarized by my brother Judge Hinds in R v Harris[20] where he wrote: [60] There is a great deal of case law which provides guidance on dangerous and long-term offender applications. In

summary, thefollowing principles are applicable to this hearing: 1. The Crown has the onus of proof beyond a reasonable doubt to establish that the offender fulfils the criteria in

section 753 (R. v.Ewenin, 2009 SKQB 207, para. 23; R. v. Natomagan, 2010 SKPC 7 at para. 56). 2. The principles of sentencing contained in the Criminal Code, ss. 718, 718.1 and 718.2 must be considered by the Court (R. v. Johnson,2003 SCC 46 at para. 23, [2003] 2 S.C.R. 357). 3. Sentencing is an individualized process in which the trial judge has considerable discretion in fashioning a fit sentence.

In the case ofa dangerous offender application, the focus must remain on the offender's own record, personal characteristics, and on the availability oftreatment and rehabilitation programs for the particular offender (R. v. Merasty, 2011 AKPX 109, at para. 110; R. v. Proulx 2000 SCC 5, [2000] 1 S.C.R. 61 (S.C.C.) at para. 82; R. v. Daniels, 2011 SKCA 67 at para. 19). 4. The primary purpose of the dangerous offender legislation is the protection of the public (R. v. Johnson, 2003 SCC 46 at para. 19; R.

v. Ewenin , 2009 SKQB 2007, para. 22 ). Recent amendments to the dangerous offender legislation ". . . have placed greater emphasis on the primacy of the protection of the public.": R. v. J.E.M ., 2011 BCSC 715 at para. 37 . IX. DESIGNATION [ 67 ] Pursuant to section 753(1), I must find Mr. Obey to be a dangerous offender if it is proven beyond a reasonable doubt that: A. The predicate offence is a serious personal injury offence, as that phrase is defined in the Criminal Code ; and either B or C below. B. Pursuant to section 753(1)(a)(i), that Mr.

Obey poses a threat to the life, safety, or physical or mental well-being of other persons by reason of: 1. a pattern of repetitive behavior; 2. showing a failure to restrain his behaviour; 3. 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 behaviour; 4. of which the predicate offence forms a part. C. Pursuant to section 753(1)(a)(ii), that Mr.

Obey poses a threat to the life, safety, or physical or mental well-being of other persons by reason of: 1. a pattern of persistent aggressive behaviour; 2. showing a substantial degree of indifference for the reasonably foreseeable consequences to other persons; 3. 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 behavior; and 4. of which the predicate offence forms a part. A.

Serious Personal Injury Offence [ 68 ] In my decision given January 29, 2014, I concluded that the predicate offence was a serious personal injury offence as that term is defined in

section 752. That is, it is an indictable offence where violence was attempted against another and it was conduct that endangered or was likely to endanger the life or safety of others. Thus, the Crown has proven beyond a reasonable doubt that Mr. Obey's predicate offence is a serious personal injury offence. B. Section 753(1)(a)(i) 1. Pattern of Repetitive Behaviour [ 69 ] The question of what constitutes a pattern of repetitive behaviour was recently canvassed by the Saskatchewan Court of Appeal in R v Knife . [21] In that case, the Court held that: [55] The importance of past conduct for the s. 753(1)(

a) analysis is not simply to show the offender has committed violent offences in the past. The dangerous offender provisions are not intended to punish the offender again for his or her past offences, regardless of how similar (or dissimilar) they may be. What is important is that, based on those past offences, the offender is likely to continue to offend violently and endanger the public in the future. The past conduct provides the evidentiary basis for assessing the future threat, but it is the future threat that

Part XXIV is aimed at curbing. [ 70 ] After discussing various cases from other jurisdictions, the Court summarized 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. [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 [22] 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 ). [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 [ sic ] 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. [ 71 ] Reviewing the circumstances of the offences on Mr. Obey's record, one is struck by the fact that in every case, he is the aggressor.

Many of his offences were unprovoked and, if provoked, Mr. Obey's response was entirely disproportionate to the provocation - real or perceived. In no case was he subjected to a physical threat from his victim. In every case, he started the physical aspect of the encounter and in every case he ended it. [ 72 ] With the exception of three convictions, Mr. Obey's offences did not involve weapons. In some sense this might mitigate the seriousness of the assaults but in the result, he has shown himself to be a man who, when he was angered or felt slighted or diminished, responded with his fists.

This is so especially when he is intoxicated, as he was for all but two of his convictions for violent offences. In my view, this shows similarity in the types of offences he has committed. [ 73 ] The level of violence inflicted by Mr. Obey in his offences was not grievous but is consistent. In this regard, I am reminded of the Court of Appeal's reiteration, with approval, of the statement from Neve that "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". There is similarity in the degree of violence used in Mr.

Obey's offences. [ 74 ] Both Dr. Holden and Dr. Nicholaichuk concluded that Mr. Obey’s history of offending establishes a pattern of behaviour from a psychologist’s perspective. I am satisfied that Mr. Obey’s history of offending establishes a pattern of repetitive behaviour for the legal perspective of section 753(1)(a)(i). [ 75 ] In reaching this conclusion, I am satisfied that the sexual assault conviction forms part of a pattern even though, while certainly

an act of violence, the nature of this assault and the nature of the harm caused is arguably different than that of Mr. Obey's other offences. [ 76 ] In this regard, I am mindful of Dr. Holden's evidence that this offence was, in his opinion, opportunistic rather than arising from his lack of impulse control. [23] This might be thought to differentiate this offence from the others, all of which appear to me to be consistent with Dr. Holden's diagnosis of impulse control disorder. [ 77 ] I am also mindful of Dr.

Nicholaichuk's evidence that the sexual offence is "one more violent event which is nested in a history of chronic violence". [24] and later, that it is "one more form of violence in a pattern of violence". [25] I understand this opinion to confirm that the violence exhibited in the sexual assault is of a different nature than his other violent offences. [ 78 ] However, despite their disagreement as to whether Mr. Obey is at risk for committing further sexual assaults, both opined that the sexual assault did form part of Mr. Obey's pattern of violence.

It was an aggressive act, undertaken while intoxicated against a person known to him, as were all other violent offences in his pattern. [ 79 ] For these reasons, I have included the sexual assault conviction for purposes of determining whether Mr. Obey’s offences show a pattern of offending. [ 80 ] However, I have not included the summer 2000 conviction for assault causing bodily harm against his infant daughter [26] among the offences that form Mr. Obey's pattern of violent offending.

While this is a serious offence involving violence against another, it is, I believe, otherwise different than the other violent offences on Mr. Obey's record. [ 81 ] As is discussed above, Mr. Obey's record shows him to be a man who responds with violence when angered, especially when intoxicated. However, in the assault against his daughter, he was neither. Mr. Obey, then just 24 years old, was left to care for his infant daughter. He became frustrated by her inconsolable crying and, on two occasions, shook her quickly a couple times.

His was, in the sentencing judge's words, "an impulsive act by an unskilled and frustrated parent" who probably did not learn appropriate parenting skills due to his own family's dysfunction. It is implicit in his decision that the sentencing judge did not find Mr. Obey's actions on this occasion to be fuelled by anger or malice. [ 82 ] The assault on the baby was not the act of an angry and intoxicated man responding with his fists. It is different from Mr. Obey's other violent offences and I do not think it forms part of his pattern of offending. [ 83 ] In regard to Mr.

Obey’s convictions for threatening, I have had reference to R v Neve [27] where the Alberta Court of Appeal said:

[164] In explaining why verbal threats not acted on should be taken into account in determining whether the proscribed pattern had been met, the sentencing judge indicated that since the dangerous offender designation could not be made in the absence of the commission of a serious personal injury offence, this protected an offender from being designated a dangerous offender on the basis of verbal threats only. With respect, this misses the point. It is not enough that the offender have committed a predicate offence. The predicate offence must, as we have noted, be part of the proscribed pattern.

And the pattern must demonstrate the required failure to restrain with consequential serious physical or psychological harm, or the likelihood thereof, to others. The question therefore is whether Neve’s uttering threats offences, given the circumstances in which they occurred, fit within these criteria. [165] We agree that there will be cases where uttering threats will certainly form part of a pattern of behaviour sufficient to satisfy ss.753(a)(

i) or (ii). However, to determine if specific offences fall within the proscribed patterns under s.753, it is essential to assess the offences in context, having regard to what actually happened and why. For example, there is a world of difference between someone who conveys a threat directly to a police officer about a third party and the stalker who threatens his or her victim directly and then takes steps to carry out that threat. [ 84 ] I do not consider Mr. Obey's six convictions for threatening to form part of his pattern of violent offending.

Almost all were made in the context of other violent offences which are clearly more significant to this analysis. In no case is there any information from which I might determine whether the threats were seriously intended. In few is there any evidence from which I might determine their impact on the recipient. There is no evidence suggesting that Mr. Obey took any steps to carry out any of the threats. Without such evidence, any conclusions I might reach would be speculative. 2. Failure to Restrain [ 85 ] In each of the offences detailed above, Mr.

Obey was the aggressor and in each, his aggression stemmed from anger or offence or both. He did not restrain himself or his response in any and there is no suggestion that he hesitated, even briefly, before striking out physically. This shows a failure to restrain his behaviour. 3. Likelihood of Causing Death, Injury or Severe Psychological Damage [ 86 ] In R v Knife , the Court related the importance of the pattern of behaviour to the risk of future offences. It said: [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. [ 87 ] In his assessment of Mr. Obey’s risk, Dr. Holden identified a number of factors that indicate to him that Mr.

Obey, unless he receives treatment, is at high risk to reoffend. While some factors will be given more weight than others, his overall conclusion was: I have no doubt that unless Mr. Obey seriously addresses his underlying mental disorder and his chronic substance abuse, plus what appears to be an essentially criminal lifestyle, he’ll continue to engage in physical and sexual violence. [28] [ 88 ] Dr. Nicholaichuk was more optimistic. He concluded that Mr. Obey’s risk of violently reoffending is, absent treatment, that there is a 50% risk that he will reoffend violently within 4.4 years of release.

Given the potential impact of variables such as adjustment error in the test results themselves and events and influences after the predicate offence, Dr. Nicholaichuk believes the percentage above is likely higher than his actual risk. [ 89 ] In this regard, I am more inclined to accept generally Dr. Holden’s assessment. While I do not accept his conclusion that Mr. Obey is at high risk to reoffend sexually, I am impressed by the nature and number of Mr. Obey’s prior offences.

It is difficult for me to understand how his risk might be below 50 per cent when, generally, the evidence suggests that, unless he receives effective treatment, Mr. Obey’s pattern of behaviour will be continued. [ 90 ] In this regard, Mr. Obey argued that the assessment of his risk as “high” has no quantitative meaning from which I can determine his actual level of risk, whereas Dr. Nicholaichuk was able to provide a percentage assessment. This is correct. [ 91 ] However, the scale Dr. Holden used allows results of low, medium and high.

Logic dictates that moderate risk would fall in the mid-range and a high risk would be in the upper end of the percentage spectrum. While I did not hear evidence as to an actual number, I can assume it is at least greater than 50% and likely much higher than that. This, to me, constitutes a likelihood. [ 92 ] I think it is evident from the nature of Mr. Obey’s offences and the manner by which force was applied, that, while in fact none of his victims suffered very serious injuries, almost any of them might have. Mr. Obey did not measure his response or his blows, nor was he cautious where he levied them.

Unless he is able in future to restrain his behaviour through effective treatment or otherwise, there is a likelihood of his causing death or injury to others.

[ 93 ] In the absence of relevant evidence, I will refrain on commenting on the risk of Mr. Obey, by his actions, causing severe psychological damage. 4. The Predicate Offence [ 94 ] The relationship of the predicate offence to the pattern is essential to the designation decision.

This relationship was discussed by our Court of Appeal in R v Knife . [29] The Court referred to the Ontario Court of Appeal decision in R v Hogg [30] and said: [60] In R v Hogg ( citation omitted ), the Ontario Court of Appeal considered an appeal by an offender who was designated as a dangerous offender and sentenced to an indeterminate sentence. He argued on appeal the trial judge erred in concluding the predicate offence was sufficiently similar to his prior offences to constitute a pattern for the purpose of s. 753(1)(a)(i).

The Ontario Court of Appeal dismissed the appeal, and stated: [40] To summarize, the pattern of repetitive behaviour that includes the predicate offence has to contain enough of the same elements of unrestrained dangerous conduct to be able to predict that the offender will likely offend in the same way in the future. This will ensure that the level of gravity of the behaviour is the same, so that the concern raised by Marshall J.A. – that the last straw could be a much more minor infraction – could not result in a dangerous offender designation.

However, the offences need not be the same in every detail; that would unduly restrict the application of the section. [ 95 ] Mr. Obey has argued that the circumstances of the predicate offence show an exercise of restraint that is not evident in the earlier offences which constitute his pattern. That is, while he swung a knife, he at some point abandoned any intention to strike. [ 96 ] In the course of my decision [31] as to whether the predicate offence was a serious personal injury offence, I concluded that Mr.

Obey at that point, “conducted himself in some manner so as to prevent contact”. [32] Thereafter, he left the premises and removed himself from the conflict. [ 97 ] Mr. Obey submitted that these findings show an element of restraint that is not evident in his other offences and that thereby distinguish this offence from his others.

Thus, he argued, the predicate offence is differentiated from and does not form part of his pattern of behaviour. [ 98 ] However, this argument ignores my corresponding finding in the same decision that “This argument presumes that there was at some time and for some period of time during the swing, an intention to strike Mr. Campbell; otherwise, there would be no intention to abandon. Thus, I must consider that Mr. Obey, by his actions, for some period of time, swung a knife at Mr.

Campbell with the intention of striking him.” [33] It is this part of the conduct that constituted the offence and upon which conviction was based. [ 99 ] Mr. Obey’s actions prior to his decision to abandon his intent are consistent with his pattern of offending. They are the actions of an intoxicated man who responded with violence against a person who had angered him and who was unable to control his impulse to react violently when affronted.

This is his pattern. [ 100 ] For these reasons, I am satisfied that the predicate offence is properly included in the pattern of behaviour for purposes of section 753(1)(a)(i). C. Section 753(1)(a)(ii) 1. Pattern of Persistent Aggressive Behaviour [ 101 ] I am also satisfied that Mr. Obey’s history shows a pattern of persistent aggressive behaviour. As I noted earlier, he was the aggressor in each of his offences and on each occasion inflicted harm on others. This is aggressive behaviour and his record shows that he has been persistent in engaging in this kind of conduct.

As the Court of Appeal stated in Knife , “It is the repetition of the violent behaviour which forms the pattern”. 2. Indifference to Consequences [ 102 ] I am also satisfied that the circumstances of Mr. Obey’s offences show an indifference to the consequences of his actions. In this regard, I am struck especially by the offences where he struck his brother-in-law with a bottle, kicked his sister, kicked his brother- in-law and levied repeated punches in a number of his assaults. [ 103 ] Any of these might have resulted in injuries much more serious than actually occurred.

That they did not was not the result of restraint or consideration by Mr. Obey. This shows indifference. 3. Likelihood of Causing Death, Injury or Severe Psychological Damage [ 104 ] As I concluded in regard to section 753(1)(a)(

i) and above, in the course of the offences constituting his pattern, Mr. Obey did not measure his response or his blows, nor was he cautious where he levied them. Unless he is able in future to restrain his behaviour through effective treatment or otherwise, there is a likelihood of his causing death or injury to others.

4. Predicate Offence [ 105 ] On the evidence as I found it at trial, Mr. Obey discontinued his knife swing and abandoned his intention to strike Mr. Campbell and Celeste. In the discussion of whether his pattern of behaviour showed a failure to restrain for purposes of section 753(1) (a)(

i) above, I concluded that it was the striking out that showed a failure to restrain and, in effect, that the abandoned intent was not relevant to that criterion. I think, however, that it is relevant to the question of whether the predicate offence showed indifference to the consequences of his actions and, therefore, formed a part of the pattern for purposes of section 753(1)(a)(ii). [ 106 ] In the course of my decision whether the predicate offence constituted a serious personal injury offence, I accepted that “Mr. Obey completed the swing but at some point during it, decided against striking Mr.

Campbell or anyone else and conducted himself in some manner so as to prevent contact”. He thereafter removed himself from the situation. [ 107 ] Mr. Obey did not testify at his trial for the predicate offence and I therefore do not have his evidence of the reason he abandoned his intention. However, it is not idle speculation to suggest that the reason he “stopped himself” was because he realized the damage he might inflict and was not indifferent to this consequence.

Indeed, based on the evidence at trial, this is the most likely explanation for his decision to discontinue the assault. [ 108 ] In regard to this offence, Dr. Holden said that Mr. Obey’s actions demonstrated “an ability to control an impulse to inflict possibly a lethal wound upon somebody[.]” [34] Dr. Nicholaichuk said it “demonstrates potentially that he is achieving some degree of control over his aggression”. [35] These opinions support the view that for the predicate offence, Mr.

Obey did not show an indifference to the consequences of his actions. [ 109 ] In this proceeding, it is for the Crown to prove the criteria of

section 753 beyond a reasonable doubt. I am not satisfied beyond a reasonable doubt that Mr. Obey was indifferent to the consequences of his actions in the course of the predicate offence. It therefore does not form part of the pattern of repetitive aggressive behaviour for purposes of section 753(1)(a)(ii). D. Conclusion [ 110 ] On this application, this Court is required to assess whether Mr. Obey’s conduct and circumstances meet the criteria in sections 753(1)(a)(

i) or (ii) or both. [36] If the Court concludes that they do, the court has no discretion but must designate Mr. Obey to be a dangerous offender. [ 111 ] The Crown has proven beyond a reasonable doubt that Mr. Obey meets all of the criteria under section 753(1)(a)(

i) and consequently, I must designate him a dangerous offender. [ 112 ] For reasons given above, the Crown has not proven that Mr. Obey meets all of the criteria under section 753(1)(a)(ii). That being the case, for purposes of that subsection, I would next move to section 753(5) and determine whether Mr. Obey should be found to be a long-term offender. However, this would be an academic exercise in light of my conclusion that he is a dangerous offender pursuant to section 753(1)(a)(i). I will, therefore, decline to conduct that analysis. IX. REASONABLE EXPECTATION [ 113 ] While the Criminal Code allows the Court no discretion in the determination phase of a

Part XXIV applications, there is discretion at time of sentencing. The relevant provisions are the following: 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. Section 753(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. [ 114 ] Thus, despite Mr. Obey’s designation as dangerous, the Court may sentence him to either an indeterminate sentence or a determinate sentence with or without a long-term supervision order. Pursuant to section 753(4.1), the “presumptive sentence” is indeterminate but a determinate sentence may be imposed if there is a reasonable expectation that a lesser measure will adequately

protect the public. [115] The question of what constitutes a “reasonable expectation” has been canvassed in a number of cases in a number of jurisdictions. Most recently, in R v Bunn,[37] the Saskatchewan Court of Appeal said: [37] More recently, in R v Osborne, 2014 MBCA 73 , 206 Man R (2d) 276, MacInnes J.A. of the Manitoba Court of Appealstated: 72 The case law does indicate a different and higher standard in “reasonable expectation” than in "reasonable possibility." 73 A most succinct expression of the difference between the phrases is found in R. v.

J.T.M., a decision of the SaskatchewanProvincial Court where, after briefly discussing the difference between the two phrases, Labach P.C.J. wrote (at para. 114): Both of these phrases really involve an assessment of the offender's risk to the public. They ask a judge to consider if the offender's riskin the community can be lowered to an acceptable level by a lesser punishment. The only difference is under the old regime the questionwas one of "reasonable possibility" whereas under the new amendments the test is one of “reasonable expectation”. The difference inwording, while subtle, is significant.

A "reasonable possibility" connotes a belief that something may happen while a “reasonableexpectation” speaks to a belief that something will happen. The onus for finding a reasonable expectation then is somewhat higher butthe factors to consider under both tests would essentially be the same.

I would substitute the word "standard" for the word "onus" in the above quotation, but otherwise adopt the statement. [38] I, like Justice MacInnes, would endorse the statement of Judge Labach with the same qualification by a substitution of the word“standard” for the word “onus”. [116] In assessing whether or not there is a reasonable expectation that a lesser measure than an indeterminate sentence canadequately protect the public from the risk Mr. Obey currently represents, there is no defined onus on either the Crown or the defence.

Instead, the question is whether, on examining the totality of the evidence, I am satisfied that there is a reasonable expectation of eventual control of the risk to the community and whether a lesser measure is or is not appropriate.[38] [117] I will turn first to the opinions of the experts. [118] Both testified that Mr. Obey is definitely treatable. Dr. Holden, in his report, used the words of the pre-amendment section; that is, he concluded that there was a “reasonable possibility of the eventual control of his risk in the community”.[39] Dr. Holden testifiedthat significant change for Mr.

Obey will require him to make many changes, but two primarily. He must admit that he has problemsand his need to develop alternate ways to carry on in his life. In this regard, it is especially important that he recognize and address his underlying mental disorder[40] and his substance abuse. These, he said, are what are necessary for treatment to begin. Treatment, whichin this context is in part synonymous with programming, does not cause the change but provides the tools that allow the change to bemade. [119] In his report and his initial evidence-in-chief, Dr. Holden was not especially optimistic about Mr.

Obey’s chances for effectivetreatment and control in the community. He used expressions like “It’s possible”. However, he expanded on this opinion in the courseof his oral evidence. [120] When asked whether he believed there was a reasonable expectation that a lesser measure than an indeterminate sentence wouldadequately protect the public against the risk posed by Mr. Obey, Dr. Holden answered “yes” though he qualified his answer in saying his was, of course, a clinical opinion and not a legal opinion.[41] He said, “So it’s not – I guess it’s a matter of the – the

interpretation of the word “reasonable”. For me, it’s reasonable but not absolute. Whether that translates into legal reasonable or not, I don’t know”.[42] [121] I am not convinced the legal and clinical usages of the word “reasonable” are necessarily different in this context. The questionis whether there is an expectation that something will happen. Dr. Holden opined that it will happen if Mr. Obey recognizes and iscommitted to dealing with the issues that underlie his behaviour. He said he had reason to believe that Mr. Obey has insight andcommitment based on: • The way he presents; • His intelligence; • The fact that his incarceration will dry him out;

• His recognition that he has issues he needs to deal with; and • The fact that he is at a crossroads in his life right now. [ 122 ] Dr. Holden said that his opinion was based on: His presentation. There is enough in the – in his – in the way he was talking to me. There is enough in the fact that he has dried out, hopefully, the last several years in jail and will continue to do that. There is enough in - he has an incentive right now to basically bring his act together because if he doesn’t, he may well be facing an indeterminate sentence even if he is not, even now.

So he has lots of incentives to basically seriously address what he needs to address. I think there is enough there for me to say I could work with him. Whether that will ultimately be successful, I guess, is in the lap of the gods. [43] [ 123 ] While Dr. Holden appeared somewhat discouraged when he was provided specific information about Mr. Obey’s prior opportunities for programming in the penitentiary during his prior sentence and his failure to act on or implement what he learned in the long term, his opinion on the expectation for management was ultimately unchanged. [ 124 ] Fundamentally, Dr.

Holden expressed reservations about programming and the assessment of its effectiveness within the Correctional Service of Canada. He said, in any event, the issue is whether programming will be available and whether it might subsequently be effective. In this regard, he used the example of a person who receives the same medical treatment repeatedly; because it was not effective on one occasion, does not mean it will not be effective on a subsequent occasion. [ 125 ] Dr. Nicholaichuk’s opinion was not significantly different in this regard. He also concluded that Mr. Obey is ready to change his ways. He said Mr.

Obey “now really understands the need to change in some pretty dramatic ways, so he’s turning the corner, I think, but I don’t think he’s there yet” [44] and that Mr. Obey is “in the early stage of the change process, certainly. It would be probably preparatory, which means that there is an acknowledgement of a problem, and preparation to start doing something about it”. [45] [ 126 ] What was different and important to Dr. Nicholaichuk’s opinion, is his diagnosis that Mr. Obey has Attention Deficit Hyperactivity Disorder (ADHD). I accept that Dr.

Nicholaichuk is well qualified to make this diagnosis and I accept it. It is Dr. Nicholaichuk’s opinion that this diagnosis enhances Mr. Obey’s suitability for treatment and effective control in the community. In particular, he said that the condition is one that is easily treatable and which, once treated, will enhance Mr.

Obey’s ability to benefit from programming and direction. [ 127 ] In assessing whether I am satisfied there is a reasonable expectation that a measure less than an indeterminate sentence will adequately protect the public against the commission of murder or a serious personal injury offence, I accept this evidence from Drs. Holden and Nicholaichuk. I have also considered other matters. [ 128 ] First, Mr.

Obey, who did not testify, made an oral, unsworn statement [46] in which he said that he had spent time reflecting on the kind of person he was seen as and that "no matter what" and whether he was incarcerated or not, he was going to keep trying "to change myself, my thinking, my impulses, my [ indiscernible ] patterns, you know, that I got - got to deal with the issues". This is consistent with the experts' opinions that this proceeding itself will provide an incentive for change. [ 129 ] I was impressed by the experts’ evidence respecting the natural diminishing of offending with age. Dr.

Nicholaichuk placed particular emphasis on this and suggested that Mr. Obey was at a point where his age – 36 at time of writing – would impact and reduce his risk of reoffending. Dr. Holden opined that at about this time, Mr. Obey will reach a plateau in his offending and that it will start to drop significantly at and after age 60. Either opinion suggests that Mr. Obey is at a point where the risk of escalating frequency of offences is reduced. This reduces the risk he presents and increases, consequently, the likelihood that his risk can be managed. [ 130 ] I was impressed by Dr.

Nicholaichuk’s evidence that Mr. Obey has ADHD and as to the impact that has had on his behaviour and on his ability to participate in and benefit from programming. This diagnosis indicates that if Mr. Obey receives appropriate treatment, including treatment for his ADHD, his likelihood of absorbing and succeeding in programming will be increased. [ 131 ] I also take into consideration the fact that the number and nature of Mr. Obey’s offences is decreasing and the fact that he abandoned his most recent assault and left the premises. [ 132 ] I have considered reports from those who have been responsible for Mr.

Obey during his time while remanded in this matter. While I am cautious about the detail of these reports in that they are recorded from the perspective of corrections staff and without Mr. Obey’s perspective, I am satisfied that Mr. Obey has been involved in incidents while in custody on remand that involve violence or threats of violence and that his behaviour has, at times, been extremely difficult and unstable. [ 133 ] However, Dr. Holden stated that while most inmates facing

Part XXIV proceedings would be particularly circumspect in their behaviour, Mr. Obey’s conduct is consistent with his impulse control disorder and, in that sense, not unexpected. In response to a report that in the course of one particularly severe incident of acting out, Mr. Obey said “I don’t care. I’m getting DO’d”, Dr. Nicholaichuk opined: “That actually is -- it tells me that he is in a state of some despair”. [47] [ 134 ] Therefore, these incidents and this behaviour illustrate and are consistent with Mr.

Obey’s diagnosis and with his circumstances; in that sense, they do not reduce any expectation that he can be effectively treated. [ 135 ] I am mindful that during his penitentiary term, Mr. Obey completed the In Search of Your Warrior Program and was able to

achieve a minimum security rating and earn his way into the Willow Cree program. While he was not able to maintain this progress and was ultimately removed from Willow Cree and returned to conventional custody, this shows that he is able to absorb and act on lessons from programming. His progress during this time is perhaps somewhat remarkable in light of the fact that this was a group program and Mr. Obey was at that time in custody in regard to a sexual offence. Both experts testified to the fact that the latter circumstance would be expected to compromise Mr.

Obey’s ability to participate fully in and benefit from group therapy and could compromise his ability to function stably within the penitentiary. Indeed, his status as a sex offender was the cause of the incident that caused Mr. Obey to be removed from the program. Mr. Obey will not face this challenge in respect of any sentence I might impose in these proceedings. [ 136 ] With his progress in acceptance and insight that Drs.

Holden and Nicholaichuk have more recently identified, one can be optimistic that he will be better able now to achieve better long-term results. [ 137 ] Finally, the considerations arising from R v Gladue [48] and R v Ipellee [49] are relevant in assessing whether the risk to the public can be adequately protected.

In R v Peekeekoot , [50] our Court of Appeal said: [51] … under s. 753.1(1)(c), the sentencing court must have reference to Gladue factors where they serve to establish the existence and availability of alternative Aboriginal-focused means aimed at addressing the environmental, psychological or other circumstances which aggravate the risk of reoffending posed by the Aboriginal offender in question.

If such means exist, are available and are suitable in the circumstances, then they go to enhance the cogency of the possibility of eventual control of the risk that the Aboriginal offender will reoffend in the community. As such, the existence or non-existence of such means is relevant to any assessment conducted under s. 752.1(1) and the sentencing court must be expected to factor the availability, nature, suitability and efficacy of such means into its determination under s. 753.1(1)(c). [52] Furthermore, although protection of the public is the paramount objective under

Part XXIV, rehabilitation is certainly a relevant, albeit secondary, sentencing objective under s. 753.1(3)(b). As such, where a Gladue factor serves to strengthen the reasonable possibility of control of the Aboriginal offender in the community, in the sense that it positively addresses the rehabilitation and reintegration of the offender into society, a sentencing court must take it into account when making the determination required of the court under s. 753.1(3).

This follows logically and unavoidably from an application of the Gladue factors in the designation of an Aboriginal offender as a long-term offender, as opposed to a dangerous offender, under s. 753.1(1). [53] In sum, while a sentencing court may have no alternative but to separate an Aboriginal long-term offender from society for a significant period of time, when determining the appropriate periods of imprisonment and subsequent long-term supervision in the community under s. 753.1(3), the sentencing court must take into account the Aboriginal status of the long-term offender for the purpose of determining the appropriate institutional and community-based programs intended to rehabilitate the offender so that the substantial risk of reoffending posed by the offender might be controlled in the community. (References omitted.) [ 138 ] This affirmed what the Court said in R v Standingwater : [51] For example, under s. 753.1(1)(c), the sentencing court must have reference to Gladue factors where they

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