Her Majesty the Queen - v. -, 2018 SKPC 23

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 023 Date: March 14, 2018 Information: 24493405 Location: Rosthern _____________________________________________________________________________ Between: Her Majesty the Queen - and - Keith Michael John Appearing: Bryce Pashovitz For the Crown Chris Lavier For the Accused JUDGMENT B.M. KLAUSE , J [ 1 ] Keith Michael John was convicted on January 15, 2016 on Information #24493405 that he did on or about the 8 th day of June, A.D. 2013 at Rosthern in the Province of Saskatchewan: 1) wound Elliot Lafontaine thereby committing an aggravated assault contrary to s. 268 of the Criminal Code ;

2) wound Steven Lafontaine thereby committing an aggravated assault contrary to s. 268 of the Criminal Code ; and 3) carry a weapon for the purpose of committing an offence contrary to s. 88 of the Criminal Code . [ 2 ] The Crown then advised that it would be seeking to have Mr. John remanded for an assessment pursuant to s. 752.1 of the Criminal Code and Dr. Shabehram Lohrasbe was requested to make the assessment. This report was completed and the consent of the Attorney General was obtained.

The matter was then set down for a Dangerous Offender (DO) hearing which commenced March 17, 2017 in Rosthern, Saskatchewan. The matter was then adjourned for argument at the request of the accused and finally heard July 26, 2017 at Rosthern, Saskatchewan and then adjourned for decision to March 14, 2018. The Issues 1. Is the index offence, i.e. aggravated assault, a “ serious personal injury offence ” as defined by s. 752 of the Criminal Code ? 2. If issue one is answered in the affirmative, does this accused meet the definition of dangerous offender pursuant to s. 753 (1) (a) (

i) or (ii) of the Criminal Code ? 3. If this accused meets the criteria for being designated a dangerous offender, what is the appropriate sentence? The Crown [ 3 ] The Crown seeks to have the accused declared a Dangerous Offender and be given an indeterminate sentence. Alternatively, the Crown seeks a twenty year sentence followed by a ten year supervision order. The Defence [ 4 ] The defence suggests that, if declared a Dangerous Offender, the accused be granted a determinate sentence followed by a ten year supervision order. Crown Evidence Craig Podgursky [ 5 ] Mr.

Podgursky is a Community Parole Officer and has been employed in that capacity in Saskatoon since 2008. It is his job to supervise parolees in the Saskatoon area. He testified that a federal prisoner can be eligible for statutory release when they have served two-thirds of their sentence. They can also be eligible for day parole once they serve one-third of their sentence minus six months or six months, whichever is longer. A full parole offender would be eligible after serving one-third of their sentence. Community Parole Officers also supervise individuals bound by Long Term Supervision Order (LTO). Mr.

Podgursky advised that special conditions can be imposed on parolees (no alcohol no drugs) and that they have a variety of enforcement mechanisms. If an offender chooses to breach a condition, the parole officer can maintain their release or suspend him. If a long-term offender is involved, they generally consult the Crown as to what should be done with that particular offender. Correctional Service Canada (CSC) maintain residential facilities with qualified staff whose job it is to monitor compliance with parole conditions. There are a multitude of programs available which can be imposed on a parolee.

Failure to participate can result in a suspension of parole and a warrant. Individuals can also be placed on “ maintenance ” programming if they have completed the primary programming in the facility from which they have been released. He described a typical problem of “ institutionalization ” where a prisoner has no idea of how to manage in the outside world as everything has been done for him while in prison. He testified that community support is very important to a successful reintegration. CSC has a community employment counsellor who assists in obtaining employment opportunities for individuals.

In his opinion, honesty and a good working relationship with one ’ s parole officer is critical to success.

[ 6 ] In cross-examination, Mr. Podgursky advised that they can help a parolee if that person indicates what his triggers are and what negative behaviour results. Negative behaviour while in an institution usually equates to more trouble upon release. Release planning is commenced as soon as an individual is sentenced. In his opinion, pro-social support is critical to success upon release. Success in the community depends on the “ buy in ” of the offender. If he has a family or a business or work that he does not want to lose, he has a much better chance of success.

A residence can often mitigate the risk of re-offending. [ 7 ] There are nine parole officers in Saskatoon and each officer generally manages between 15 and 20 parolees. Peter Sutherland [ 8 ] Mr. Sutherland has recently started work as the One Arrow First Nation Justice Worker. One Arrow offers an Anger Management Program on the reserve and also an Addictions Support Group where a variety of topics, including addictions, are discussed. Most people involved in the programming attend on a voluntary basis.

He has met the accused and advised he would be able to help this accused with re-integration in terms of addictions programming, job coaching and a wellness program. Crystal Wigton [ 9 ] Ms. Wigton has been with CSC for 18 years and is the Regional Program Manager. CSC offers programming for violence, sex offending, general life skills and Aboriginal programming. They offer different levels of programming for substance abuse including high (54 sessions) and moderate intensity (36 sessions). Once that programming is completed, CSC can offer maintenance programming, when done in a group setting.

The violence programming has approximately 50 sessions depending on the intensity required. The Aboriginal programming is much different than other programming and there is no moderate module, only high intensity. [ 10 ] There is always a “Corrections Plan” for a prisoner and if the prisoner does not follow it, there are consequences within the institution. These can include a pay cut, no leave and less support from parole officers. A prisoner in this situation is unlikely to obtain early release. Ms.

Wigton also discussed voluntary and involuntary segregation, saying programming is very difficult to take while in segregation, although once out of segregation programming can resume. She has never worked with Mr. John but indicated that since he had been sentenced to five years in an Alberta institution, this would have afforded him enough time to take both the substance abuse and violence programming. [ 11 ] In cross-examination, she agreed that the length of sentence can make a difference as to what programming an inmate is able to access.

Every facility has a “ fish bowl ” which she described as the Intake Unit where an inmate is observed and a decision is made as to what security classification they receive. It was her opinion that as people age, they generally become more cooperative. In her words, the most troublesome years are from age 18 to 40, but after 40 most individuals begin to “ figure it out. ” She indicated that the Violence Prevention Programme is one of their most successful programs.

Susan Mills [ 12 ] She is the Family Wellness worker at One Arrow and outlined the available programming which includes an Anger Management Program of 16 weeks duration. Ms. Mills is also available for one-on-one counselling. They currently do not have a Substance Abuse Programme on the reserve but they can make referrals to Rosthern. There is also Mental Health Programming and a Living Well Programme which is designed by the Saskatoon Tribal Council. Although she has never worked with this accused, Ms. Mills has worked at One Arrow for approximately seven years.

James Gonzo [ 13 ] Mr. Gonzo has been with CSC since 1998 and is the Regional Segregation Manager and sits on the National Segregation Committee. He has never worked with the accused but testified as to what happens once an inmate enters the system. An inmate has a 15 day waiting period before transfer to the Prince Albert Penitentiary. At that time, he is interviewed for a preliminary report to discuss medical issues, mental health issues, gang affiliations etc. At which time, based on this and other available information the CSC makes an initial security classification.

An accused is then sent to the Intake Assessment Unit and if the sentence is four years or more, there is an automatic 90 day assessment period which ultimately leads to a Correction Plan. The Plan is a “roadmap” to the inmate’s eventual release. CSC looks at where the inmate should serve his sentence with consideration to where his available family support is located, his security issues and where the necessary programming is available. CSC will try to accommodate the wishes of the inmate as to where he will be incarcerated.

They also determine eligibility dates for parole and CSC can then recommend conditions of release which the Parole Board can impose. If the inmate breaches conditions of a Long-Term Supervision Order, his parole can be suspended for up to 90 days. CSC runs high or moderate intensity programming with the moderate programming taking three to five months and the high intensity programming taking six to nine months. All programming is voluntary.

In regard to a determinate sentence with a Long-Term Supervision Order, once the determinate sentence is completed, the CSC has no further jurisdiction over the accused. [ 14 ] If an accused is designated a DO with an indeterminate sentence, he will not be released unless he does all the programming. The CSC has to believe that an inmate can manage their risks once they are released. The average time incarcerated is 12 years from the date of arrest to the date of release for a DO with an indeterminate sentence. In the view of Mr.

Gonzo, it is all about minimizing the risk and the inmate demonstrating that he can behave well on his own once returned to the community. [ 15 ] In cross-examination, Mr. Gonzo stated that the CSC is trying to address the over-representation of Aboriginal offenders in the DO category. Of the 120 DO ’ s in the Prairie region, 40 to 50% are Aboriginal and of those 100 are, serving indeterminate sentences. They are currently seeing an increase in the numbers of DOs with determinate sentences.

In his opinion, by the time a prisoner reaches the age of 30, there tends to be no further gang interest and people are usually honest about which gang they are affiliated with. [ 16 ] If a prisoner is involved with a gang, he always has to be involved in criminal activity as a condition of his membership. The primary concern of the CSC is public safety and security, and reintegration of the offender back into his community. However, no prisoner can get day parole from maximum security; they have to work their way down to minimum security by doing all available programming.

If they are successful in obtaining a minimum security placement, inmates are usually then eligible to be released, as the CSC has confidence that they will be successful. Most DOs have extremely lengthy records and decades of criminal behaviour which will not change overnight. In his opinion, most indeterminate offenders will be released eventually. Kevin Ranta [ 17 ] Mr. Ranta has been with CSC for 17 years and worked with this accused in 2010 after his first statutory release violation. In his opinion, Mr. John came to the programme but did not internalize its contents.

He did not admit to a substance abuse problem and that he was in the pre-contemplative state of change. In his opinion, Mr. John only participated minimally in the program so that he would not have a pay reduction and was not motivated to change. Mr. John was never rude and Mr. Ranta never felt threatened by him. At page 159 of the transcript, Mr. Ranta wrote: Mr. John attended 23 out of 26 sessions of NSAP. He missed two sessions for unknown reasons, one session for a third party certification, and he completed the make-up sessions for the three sessions he missed. Mr. John was on-time arriving to class.

He somewhat participated in the group discussions and activities. He tended to display a passive aggressive attitude by being sarcastic and making jokes most of the time during the discussions. He was also not very motivated throughout the program. For example, when the facilitator asked if he was ready to change during session 4, looking at reasons for change or looking -- correction, looking for reasons -- looking at reasons for substance use and crime, he stated he was forced to take the program or he would be brought down to 'D' level pay.

He also stated because of that, he is not motivated towards the program, if this is being forced upon him like that. During the duration of the program, he brought in his material, his notebook, but he did not put in any effort to work on the material which was given to him. He stated he just wanted to complete the rest of it in his cell. In order to help him gain the maximum benefit in the situation, Mr. John was encouraged to use verbal cues by the facilitator to answer questions and openly share any experiences with the rest of the participants. This strategy did work sometimes for Mr. John.

It was hard for the facilitator to have him maintain focus during these sessions. Mr. John gained some skills and concepts, such as recognizing triggers, useful in trying to lead a life free of substance use and crime. He

verbalized a desire to pursue pro-social lifestyle and practices and practice the Muslim faith which he is -- when he is released. He also spoke of not wanting to be with his family, as he feels they are a big reason for his failures in his life. Brandy Kihn [ 18 ] Ms. Kihn has been with the CSC for 11½ years and was the parole officer for Mr. John in Prince Albert when the accused was released May 19, 2011. She referenced her report from that time, marked as Exhibit P-7 at Tab 40: The circumstances that led to the suspension of John's release appear to have been within his control.

The post-suspension interview took place at the Prince Albert Correctional Centre on 2011 December 16th. John was polite throughout the meeting. He described that he was getting frustrated with the fact that he could not have a cell phone. He had to provide potential employers with a halfway house phone number, which he feels precluded him from obtaining employment. He indicated that he thought about selling drugs to obtain money employment. Oh, sorry, money in order to live. He was further frustrated with having to attend bullshit programs that he believes he does not need.

John decided to go to One Arrow reserve to be with family. He indicated that he drank alcohol and smoked marijuana while suspended at-large. John reported that he received additional charges of unlawfully at large, mischief and possession of a weapon, but provided no further details. He states that he is expecting another year of time for those charges -- these charges.

John indicated that he would prefer to spend the rest of his time incarcerated, rather than living at a halfway house. [ 19 ] Further at page 181 of the Transcript again quoting from her report completed at the time : John has a significant number of convictions for violence considering his young age. It appears that John sees violence as a way to get what he wants and he does not see a sentence of incarceration as a deterrent. John's index offence includes a blade for intimidation while robbing a gas station.

He also physically used a baseball bat on a pizza delivery man, because John did not have money to pay for the pizza. John was using crack cocaine at the time of these offences and he needed money to pay off debts. John appears to have the attitude that if he cannot survive or make ends meet through a law abiding means, it is his right to do what he deems necessary to survive. John describe in the post-suspension interview that he had been thinking about selling drugs for money to support his life.

File information also indicates that from a young age, his uncles taught him to steal from drunk people, and this and similar practices appears to be an acceptable way of life for John. Thus, this writer assesses that John will use violence if this is what he needs to do to get what he wants. Furthermore, John has been assessed as a high risk to offend violently against a family member, specifically his mother or an intimate partner.

To magnify the problem related to family violence, during the short time on release, John was noted to have a girlfriend, but also was planning to marry another girl that he had met on Facebook and knew for approximately one week. This did not pan out, but it does suggest instability amongst intimate relationships, which this writer assesses as further increasing the risk of violence occurring within an intimate relationship. Dr. Shabehram Lohrasbe [ 20 ] Dr. Lohrasbe is a duly qualified medical practitioner and practices medicolegal psychiatry. He has assessed several thousand individuals in that capacity.

His assessment of the accused was based on an interview with the offender and a review of the documents held on his file. [ 21 ] At page three of his report: Mr. John can come across as immature and naive at times, hardened and street smart at others, likely reflecting an unsettled and conflicted sense of himself (personal identity). At times he came across as a sophisticated criminal, deeply and comfortably entrenched in the criminal subculture.

He spoke matter-of-factly about his experience and skills with violence, gang life, conflict with other gangs such as the Hell ’ s Angels, and his success in eluding police wile carrying out his criminal activities. As an extension to his criminal street life, he is also a ‘ hardened con ’ within jails and prisons, and spoke off-handedly about threats and violence both directed at him as well as inflicted by him on others. He was very aware of his rights in regard to conflicts with correctional officers and the Justice/correctional system, and takes umbrage when his rights are , in his mind, violated.

He does not see the irony of this sensitivity being embedded in his own history of repeatedly violating the rights of others (a common moral lacuna among chronic offenders). [ 22 ] Dr. Lohrasbe then went into an exhaustive examination of the material filed by the Crown as Exhibits P-7 and P-8. Clearly, Dr. Lohrasbe knows more about this offender than any previous report writer as he had access to a huge amount of written material and

his own interviews. He seems to concur with the vast majority of opinions rendered about Mr. John by previous experts and people in charge of his rehabilitation. [ 23 ] Dr. Lohrasbe found the offender to be indifferent to the seriousness of what he has done to other people and is concerned that the level of violence is increasing, as demonstrated by the predicate offences here. The offender always carries a knife with him for protection and many of his previous offences have involved the use of a knife or other weapon. His lack of remorse is a persistent theme in his history. In Dr.

Lohrasbe’s opinion, the biggest concern is the accused’s complete lack of remorse. If the accused is to fit in and engage in treatment and monitoring in the community, he must completely engage in the programming which he is offered and has been offered, without significant success, in the past, while in custody. He noted that the accused’s references to “bullshit programs” does not indicate a dedicated interest in actually taking and absorbing what the programming is all about. [ 24 ] The accused does not spend much time reflecting on the harm he has done to others in the past.

He grew up with a mother who hit him which is why he is capable of hitting her. He does not understand that his offences are particularly serious, as in his world, that is how people behave. As the witness testified, Mr. John did not plan to hit the pizza delivery boy with a baseball bat. He fails to realize the significance and extent of his actions when he is caught up in the moment, and has a complete naiveté about the consequences of his actions. In referencing the other predicate offence, Dr.

Lohrasbe stated that when you are stabbing someone indiscriminately, you are not controlling the consequences of your actions. In his opinion, stabbing someone repeatedly is a huge concern, and is evidence of a risk for violence in future interactions. [ 25 ] In reference to his family situation, according to Dr. Lohrasbe, the accused understands that he has to break with his family environment at One Arrow as rehabilitation will not be successful for him there. In the doctor’s opinion, Mr. John has to stop abusing substances as he is far too compulsive to manage the use of either drugs or alcohol.

This will be a monumental task for this accused at his age and stage in life and will require a significant transformation. [ 26 ] In discussing this offender ’ s risk factors, Dr. Lohrasbe concluded that Mr. John has multiple risk factors in each of the categories of historical factors, dispositional factors, contextual factors and acute precipitating factors. (See Exhibit C-1 at page 26). [ 27 ] His conclusion, at page 26 is: He has repeatedly been assessed as being at high risk for violence. In a thorough assessment nearly a decade ago, Dr.

Woods, using both actuarial and structured clinical guidelines, rated Mr. John as being at high risk for criminal and violent behaviours, as reviewed above. The predicate offences can only pull up ratings of risk to even higher levels. Hence it is abundantly clear that as things stand Mr. John poses a high risk for future acts of violence. [ 28 ] Dr. Lohrasbe testified that, at present, Mr. John has higher risk than he did in 2007. In his opinion this accused would need a very slow transition whereby he is eased back in to the community.

He believes the transition period would require three to five years of transition assuming Mr. John takes all programming offered and does well in that programming. [ 29 ] At page 28 of his report, Dr. Lohrasbe wrote: If based solely on his track record, Mr. Johns ’ s prospect for effective treatment would appear to be dim. As reviewed above, he has, at best, simply ‘ gone through the motions ’ in order to appease system demands.

Given the profound changes he is going to have to make in attitudes, relationships, mental and behavioural habits, and general lifestyle, anything short of a whole hearted and sustained commitment at personal reformation will likely be unsuccessful. [ 30 ] Of concern to Dr. Lohrasbe was that the predicate offences occurred within mere weeks of Mr. John’s return to his home community. Again at page 28 of his report, he said:

It is of significance that these serious offenses occurred within weeks of his return to his community. Mr. John is a thoroughly institutionalized man, having spent much of the last two decades behind bars. He made it quite clear that living in the community is a very stressful experience for him. While in the community, substance abuse serves to damp down his anxiety and offers him the escape into oblivion, away from responsibilities and expectations.

He is ‘ at home ’ in the correctional setting and, once in the community, he is drawn back to a substance abusing and criminal lifestyle because it is what he knows and he associates with the same kind of people that he associates with while in custody. Hence, Mr. John will require an extraordinarily slow transition when he is eased back in the community. [ 31 ] The real problem for this accused, in his opinion, is motivation as set out at page 29: The key issue is motivation. Mr. John does not have a deep-seated , emotionally driven-desire to change who he is. He is not driven by guilt, remorse or shame.

It is doubtful that Mr. John will enter any treatment programs with internally-generated motivation, however, such is not uncommon and many offenders do gradually shift from externally based negative motivations (deterrents) towards those that are internalized and directed at positive outcomes for their own lives. As a result of current sentencing proceedings, and independent of the final outcome, Mr. John is sharply aware of what he faces if he does re-offend. His external motivation, at least in the short term, is likely to assist with engagement in treatment programs. [ 32 ] In cross-examination, Dr.

Lohrasbe agreed that high risk is not equal to unmanageable risk. He agreed that the key to success is the continued motivation to “come onside”. He agreed that Mr. John realizes he has run out of chances and that he is now in great jeopardy of losing his freedom forever. He also found it significant that Mr. John has some insight and that this was spontaneous. The great unknown is whether Mr. John will be able to sustain treatment over time. Dr. Lohrasbe further agreed that it is generally easier to treat violent offenders than sexual offenders.

Keith John has not been able to sustain a pattern of change but has gleefully embraced his attitudes as a young man; he now needs to transform himself into a more responsible individual. His mother called him “the devil”, a title he embraced but which he now needs to abandon. His current religious interest could be a positive thing for him. He agreed that Mr. John has the capacity to change. The question is how badly does he want to change. [ 33 ] Dr. Lohrasbe ’ s conclusion was reached at page 30 of his report:

Summary 1. He is at high risk for future acts of violence. 2. As demonstrated by the predicate offences, the outcome for a future victim could be severe. 3. While treatment prospects do not look promising, the possibility of future treatment programs being more effective than past ones cannot be dismissed. 4. Realistic bases for the hope that risk for violence can be lowered in the foreseeable future include the possibility of effective treatment interventions, the aging process, the deterrent effect of current sentencing proceedings, and the cultivation of Mr.

Johns ’ s areas of vocational and spiritual/philosophical interests. 5. It may be helpful for him to do programs in another region in order to avoid the negative consequences of his history within gangs and institutions. 6. As he has been thoroughly institutionalized, he will need a slow and measured transition when he is back in the community. 7. The longest possible period of monitoring and supervision in the community will assist in risk management.

8. It will be important to update this risk assessment prior to making concrete release and risk management plans, as much will have to have changed before safe management in the community can be considered. The Defence Father André Poilièvre [ 34 ] Father André runs the Straight Up Program in Saskatoon whose aim it is to help people leave the gang culture and turn their lives around. Its goal is to have its members become loving parents, faithful partners and productive citizens. Recently, the accused asked to see Father André, in order to advise him that he is no longer a member of a gang.

However, since he is in secure custody, he cannot attend the programming Father André’s program offers. [ 35 ] In short, Father André is an available resource to this accused if he is released. In cross-examination, Father André acknowledged that Mr. John faced a long tedious journey and one that will be difficult. He agreed that half of the applicants in the programme are using his organization for leverage and the remaining half are sincere in their desire to leave the gang lifestyle. Clifford Michael John [ 36 ] Mr. John is the accused’s father and describes a chaotic upbringing for this accused.

He indicated that his wife was very violent towards the accused. Mr. John is in communication with Keith and can offer him emotional support upon his release. He believes the accused is now out of the gang lifestyle. He expressed regret for Keith’s upbringing; alcohol took control of his family’s life and he was not a suitable parent for Keith in his formative years. Keith John [ 37 ] The accused testified and agreed that his childhood was chaotic with multiple moves and a violent mother whose physical abuse commenced when he was six. At an early age, (i.e. 10 or 11), he was introduced to alcohol by his uncle.

He believes he has his Grade 10 and is interested in completing his Grade 12 and a welding course. He would like to do home renovations if he is ever released from custody. His drug abuse is long and complicated, but claims to be drug free since 2013, which roughly coincides with the date of the predicate offence. Drugs have included: intravenous drug use, cocaine, crystal meth, ritalin, valium, hash oil and morphine.

He described a life-style of break and enters and robberies in order to support his various drug addictions over the years. [ 38 ] The accused has become very interested in all things religious during his most recent stay on remand. As a teenager he was very interested in First Nations beliefs such as sweats and feasts but he ultimately distanced himself, feeling that one could not mix traditional Aboriginal beliefs with mainstream religions. He is currently very involved in Christianity after a brief dive into Islam. He prays daily and reads the Bible, looking for new meaning to his life.

He left Islam because he felt it was a man made religion. He claims to be learning to be more patient and compassionate. He intends to complete all programming, as he needs to work on the weak spots in his life. He agrees that he should probably serve his time out of the Prairie region, in an effort to distance himself from local acquaintances and negative influences. [ 39 ] He maintains that he has dropped any gang affiliations and would like to fully participate in the Straight Up Program. He is currently prescribed antidepressants which he finds helpful in dealing with his depression.

He realizes his biggest risk factors are alcohol and the people he hangs out with and knows that he needs to lose both. [ 40 ] In cross-examination, he agreed that his first contact with the justice system was at age 12 when he committed a

break and enter in Wakaw to steal cigarettes and candy. In 1998 he committed two armed robberies by robbing teenagers armed with a knife. He indicated he wanted their backpacks to sell in order to purchase drugs. He indicated he really had no employment but lived off his criminal activity, committing break and enters at night and robberies by day to satisfy his drug habit. [ 41 ] The accused agreed that most of his record was spontaneous, but he has now changed. A nine month Conditional Sentence Order with electronic monitoring ended when he cut off the monitoring bracelet on New Years Eve 2001.

His CSO was terminated and subsequently he received a sentence of eighteen months as a result of a theft of alcohol from a store in Domremy. He asked for a federal sentence as other inmates had glorified the federal penitentiary lifestyle. [ 42 ] At Tab 19 in his Pre-Sentence Report (PSR), he indicated he wanted to avoid crime and substance abuse and wants out of the gang. [ 43 ] It would appear that not much has changed between then and now. [ 44 ] While serving his sentence, Mr.

John was charged and convicted of a common assault against a Corrections Worker by throwing a Duracell battery at the complainant because he had been denied a second phone call. The accused felt that the complainant “ was intentionally messing with me.” [ 45 ] At Tab 22 Mr. John was charged with uttering a threat to Barbara Ramsey, carrying a machete for a purpose dangerous to the public peace, carrying a machete concealed and two counts of breach of probation. The threats and weapons charges were stayed and he plead guilty to two breaches.

He was sentenced February 22, 2005 to 30 days on each charge concurrent and six months probation. [ 46 ] On December 14, 2005 he plead guilty to robbery, obstruction, uttering threats, fail to comply with recognizance x 3, fail to comply with probation and possession of a drug. He received 12 months on the robbery and one year probation and six months time served on the remaining counts. The facts on the robbery included an attack on Desiree Laliberte which was encouraged by the accused who, when she was on the ground, ended up stealing her new footwear plus some clothing and her bus card. Mr.

John told her that if she told anyone she would have a gun at the back of her head the next time he saw her. She also advised the police that Mr. John had pulled a big machete from inside of his pants as this was happening. At the time of this offence, Mr. John was on probation and required to report to Irene Paul and take programming which he did not do. [ 47 ] At Tab 23 at p. 11 of the PSR regarding the December 14, 2005 convictions, the accused was invited to address the Court.

He had this to say: And I know the past three years ‘ I ’ ve been through a lot and all that, and since I ’ ve been in jail for the last six months, I just kind of had to think of my past and all that, and I was thinking, you know, I ’ m sick of always coming into jail, it ’ s about time I start doing something ... and, I don ’ t know, I ’ m ready to give up the life. [ 48 ] His expression of remorse was not to last. [ 49 ] On March 5, 2006, Mr.

John assaulted his mother while on probation and plead guilty to that charge and two counts of breach of probation for breaching his no alcohol clause and a condition prohibiting him from being in Saskatoon. The guilty pleas were entered June 21, 2006. The facts indicated that the accused had been drinking and when he got home became agitated and was about to punch the wall when his mother advised against that. He became aggressive towards her, punched her in the head, pushed and shoved her and, as she was attempting to escape out the door of the apartment, was slammed in the doorway.

He was sentenced to time served and once again, placed on probation. [ 50 ] At the sentencing, Glen McCallum of Building a Nation, spoke on behalf of Mr. John. Mr. McCallum indicated to the Court that he felt that Mr. John was reaching out to him, and that he was prepared to deal with his past issues, his anger at his

upbringing and that he was interested in connecting with the cultural people on his reserve and returning to school. [ 51 ] This clearly impressed the sentencing judge as stated at page 26 of the sentencing transcript at Tab 24: I watched your face change in expression while the sentencing has been going on, and when your counsel was speaking your face softened. When Mr. McCallum was speaking your face softened even more.

You look like a different person when your face softens, when you – when the anger is not there, and so it ’ s an indication to me that you are wearing your heart on your sleeve right now, and that you are open to working with Mr. McCallum and working on your issues, and maybe there really is an opportunity here for you to be the person you want to be. [ 52 ] Once again, that remorse and opportunity went unrealized. [ 53 ] At Tab 25, between July 31, 2006 And August 1, 2006 in Edson, Alberta he was charged with the following counts: 1.

On or about the 31 day of July A.D. 2006 at or near the town of Edson, in the Province of Alberta did steal from Parkland Industries Short Stop Foods the sum of $144.58 while armed with an offensive weapon, to wit; a knife contrary to s. 344 (

b) of the Criminal Code of Canada ; 2. On or about the 31 day of July A.D. 2006 at or near the town of Edson, in the Province of Alberta did with intent to commit an indictable offence have his face masked contrary to s. 351(2) of the Criminal Code of Canada ; 3. On or about the 31 day of July A.D. 2006 at or near the town of Edson, in the Province of Alberta did carry a weapon, to wit: a knife for the purpose of committing an offence contrary to s. 88 of the Criminal Code of Canada ; 4.

On or about the 31 day of July A.D. 2006 at or near the town of Edson, in the Province of Alberta did steal food items from Legends Pizza and at the time thereof did strike Roger Blanchette an employee of Legends Pizza on the head with a baseball bat contrary to s. 344 (

b) of the Criminal Code of Canada ; 5. On or about the 31 day of July A.D. 2006 at or near the town of Edson, in the Province of Alberta did in committing as assault on Roger Blanchette use a weapon to wit: a baseball bat contrary to s. 267 (

a) of the Criminal Code of Canada ; 6. On or about the 1 st day of August, A.D. 2006 at or near the town of Edson, in the Province of Alberta did steal from east End Tiger Express the sum of $435 while armed with an offensive weapon to wit: a knife contrary to s. 344 (

b) of the Criminal Code of Canada ; 7. On or about the 1 st day of August, A.D. 2006 at or near the town of Edson, in the Province of Alberta did steal from east End Tiger Express Players cigarettes while armed with an offensive weapon to wit: a knife contrary to s. 344 (

b) of the Criminal Code of Canada ; 8. On or about the 1 st day of August, A.D. 2006 at or near the town of Edson, in the Province of Alberta did carry a weapon to wit: a knife for the purpose of committing an offence contrary to s. 88 of the Criminal Code of Canada ; and 9. On or about the 1 st day of August, A.D. 2006 at or near the town of Edson, in the Province of Alberta did with intent to

commit an indictable offence did have his face asked contrary to section 351(2) of the Criminal Code of Canada . [ 54 ] These offences were committed when he was required to live and report to Probation Services in Saskatoon. He ultimately plead guilty to the three robberies and being disguised with intent. [ 55 ] He claimed at the time of the offences he was under the influence of crack cocaine and had been smoking crack all day and was desperate for drugs. [ 56 ] An Agreed Statement of Fact was read into the record and is found at Tab 25 in Exhibit P-6.

The armed robbery at the Fas Gas in Edson consisted of the accused approaching an employee, pulling a knife and demanding cash. He was wearing a red bandanna over the bottom portion of his face and enjoined the clerk not to call the cops. With regard to the pizza robbery, the delivery man was dropping off a pizza at a trailer court in Edson and was met at the door by the accused. While he waited for payment, Mr. John struck him in the head with a baseball bat and proceeded to choke him and demand the remainder of his money. The driver managed to escape with a cut to his head, was treated and released.

In regard to the last robbery, the accused and another individual entered the Esso Tiger Express in Edson and approached a female employee, pulled a knife with an eight inch blade and asked for money. They attended the till and removed $435.00, twelve packages of cigarettes and left the scene. [ 57 ] In the PSR presented at his sentencing hearing, the writer notes: Appearing before the court is a twenty six year old recidivist.

Although the subject has pleaded guilty to his offences and states he accepts full responsibility, he appears somewhat indifferent to the severity of the offences and his impact on the victim.

He had no immediate plans to return to school but might consider taking a welding program in the future. [ 58 ] In the somewhat prescient conclusion, the writer of the report had this to say: The subject has a consistent history of non-compliance with Court Orders, a dismal record with compliance while under community supervision, an unfailing negative impact in the community and has had, and continues to have, significant involvement with the Criminal Justice System. [ 59 ] A Psychological Report was also prepared by Dr. Curtis Woods. His conclusion states: It is my opinion that Mr.

John ’ s risk of both violent and non-violent criminal recidivism fall within the high range, as supported by his longitudinal history, clinical presentation, and results of formal psychological testing. Given the reality that maladaptive personality factors are most prevalent in this case, namely an antisocial personality disorder with conspicuous psychopathic features, complicated by a serious polysubstance dependence syndrome serving as a disinhibitory and inflammatory variable. Mr. John ’ s offending might recur under wide ranging circumstances.

The likelihood of recurrence ultimately depends on an individuals potential for change and the availability of treatment resources. The effectiveness of any treatment intervention is largely contingent upon the individuals ’ s prospects for lifestyle and characterological alteration. It this regard, it is my opinion that Mr. John ’ s prognosis is guarded and will undeniably necessitate high levels of motivation, persistence, and commitment, particularly given the magnitude of this mans difficulties. [ 60 ] In that same report, reference is made to a report provided by Dr.

Mary-Anne Back, a Clinical Psychologist, who had received Mr. John on a referral from Dr. Woods. Her conclusion states: Mr. John endorsed a broad range of symptoms and problems on the PAI. Profiles of this type are usually associated with marked distress and severe impairment in functioning. Mr. John answered as one whose use of drugs has had numerous negative consequences on his life in areas such as interpersonal relationships, legal difficulties, and vocational failures. His pattern of responses was also consistent with

prominent features of Antisocial Personality Disorder such as unreliable and irresponsible behavior, occupational failures, a history of antisocial behavior and conduct disorder, involvement in criminal activity, egocentricity, impulsivity, a lack of regard for others and a tendency to exploit others, a lack of loyalty and recklessness. He also answered as one who is likely to place little importance on his social role responsibilities and as one who is likely to experience little remorse in the long-term , even though he may verbalize guilt over past transgressions.

He also answered as one who has an explosive temper and intimidates others with his physical violence. [ 61 ] In cross-examination, Mr. John was rather cavalier in regard to this whole incident, blaming it all on his need to consume more drugs and indicating he showed some remorse because he plead out when he “could have beat it.” He agreed that, during the time he spent in Edmonton, he worked with Elders because he was paid to do so and it was at that time that he embraced Islam and attended mosque every day for support.

He was not interested in many other programs that they offered and agreed that he in fact breached his parole 43 days after his first statutory release. He then took the National Substance Abuse Program but was less than enthusiastic about it. On his second statutory release he was placed on a special residency condition in Edmonton but went unlawfully at large as he wanted to return to One Arrow. This warrant remained outstanding until he was arrested on One Arrow in regard to a complaint that Mr.

John was at the One Arrow First Nation gas station and police knew he was on a Canada wide warrant in relation to his statutory release. At the time of his arrest, he gave a false name and when searched was found to have an eight ball in a sock on his person. He was charged with obstruction and possession of a weapon for a purpose dangerous to the public peace. He plead guilty and was sentenced. [ 62 ] In speaking to sentence, Mr. John again advised the Court that he had converted back to Christianity from Islam , and advised the Court of his continued interest in a welding course and in Bible courses.

He was sentenced to one year for these offences and as part of that sentence, he was released to serve the latter part of that sentence at the MACSI Treatment Center, but he chose to leave that center unlawfully. That warrant was still outstanding when he was arrested for the predicate offences occurring in Rosthern, Saskatchewan. Analysis Legislative Changes to

Section 753, Post- 2008 and Judicial

Interpretation [ 63 ] The Dangerous Offender regime was amended in 2008, and those amendments came into effect on July 2, 2008. Prior to the amendment, the sentencing judge had discretion in ordering a dangerous offender designation if the offender met the criteria for such a designation. As the

section presently stands, once an offender meets the criteria of dangerousness, the judge must declare the offender a dangerous offender. However, once a designation has been ordered, the judge has discretion at the sentencing stage: a Dangerous Offender can either be sentenced to an indeterminate period, to the original sentence with up to ten years of supervision in the community, or to the original sentence alone. The default sentence, however, is one for an indeterminate period unless the judge is satisfied that there is a reasonable expectation that a lesser sentence will adequately protect the public.

The following chart compares the pre-2008 legislation with the legislation after the 2008 amendments came into force with respect to the procedures and requirements for finding an offender to be a dangerous offender under s. 753 of the in Criminal Code : Pre-2008 Legislation Application for finding that an offender is a dangerous offender 753

(1) The court may , on application made under this Part following the filing of an assessment report under subsection 752.1(2) find the offender to be a dangerous offender if it is satisfied (

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

a) of the definition of that expression in

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

i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (ii) a pattern of persistent aggressive behaviour by the offender, of which the Post-2008 Legislation Application for finding that an offender is a dangerous offender 753

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

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

a) of the

definition of that expression in

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

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

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

b) of the definition of that expression in

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

(4) If the court finds an offender to be a dangerous offender, it shall impose a sentence of detention in a penitentiary for an indeterminate period. ... If offender not found to be dangerous offender

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

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

section 753.1 applies to the application and the court may either find that the offender is a long-term offender or hold another hearing for that purpose; or offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or (iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender ’ s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; or (

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

b) of the definition of that expression in

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

(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. Sentence of indeterminate detention (

b) the court may impose sentence for the offence for which the offender has been convicted. ... Application for finding that an offender is a long-term offender 753.1

(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that (

a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;

(

b) there is a substantial risk that the offender will reoffend; and (

c) there is a reasonable possibility of eventual control of the risk in the community. ... If the offender found to be a long term offender

(3) Subject to subsections (3.1), (4) and (5), if the court finds an offender to be a long-term offender, it shall (

a) impose a sentence for the offence for which the offender has been convicted, which sentence must be a minimum punishment ofimprisonment for a term of two years; and (

b) order the offender to be supervised in the community, for a period not exceeding ten years, in accordance with

section 753.2 and theCorrections and Conditional Release Act. ... If offender not found to be long-term offender

(6) If the court does not find an offender to be a long-term offender, the court shall impose sentence for the offence for which theoffender has been convicted.

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

b) or (

c) willadequately protect the public against the commission by the offender of murder or a serious personal injury offence. (Emphasis added) Reduced Discretion [64] Compared to the previous legislative scheme, the 2008 amendments leave little room for judicial discretion with respect to thedesignation of an offender as a dangerous offender. When the legislative criteria are met, the accused must be designated a dangerousoffender. The discretion now resides in the sentencing of a dangerous offender, where the offender presumptively faces an indeterminatesentence.

Built in Proportionality and Restraint [65] It is a mistake of law to find that an indeterminate sentence is disproportionate given the nature of the predicateoffence. Proportionality is already built into the ss.753(1) and (4.1) sentencing scheme R v Bird, 2015 SKCA 134, 467 Sask R 277[Bird]. Parliament has crafted provisions in which it sets apart particular offenders as requiring special attention at sentencing. The“personal injury offence” requirement acts as a gatekeeper to ensure that the sentence is not disproportionate to the offence R v Currie, (SCC), [1997] 2 SCR 260.

Dangerous offenders are thereby subjected to more onerous sentencing requirements in aneffort to protect the public. In R v Lyons, (SCC), [1987] 2 SCR 309, the Supreme Court commented on the legislativescheme of dangerous offender provisions as being proportionate to their goal: It seems to me that having concluded that the legislative objectives embodied in

Part XXI are not only of substantial importance tosociety’s well- being, but at least in theory, sufficiently important to warrant limiting certain rights and freedoms, one must equally

conclude that the legislative classification of the target group of offenders meets the highest standard of rationality (and I use the word not as a term of art) and proportionality that society could reasonably expect of Parliament R v Lyons ,). (para 44) [ 66 ] It is similarly a mistake of law to consider an indeterminate sentence in terms of the restraint principle in s.718.2(

b) and (d). According to our Court of Appeal, the restraint principle has been built into s.753(4.1): [31]

Section 753 already addresses restraint. It is restraint in the context of someone who has been found to be a dangerous offender.

An indeterminate sentence of imprisonment is mandated unless the court is satisfied that there is a reasonable expectation that a lesser measure (determinate prison sentence plus long term supervision) will adequately protect the public. [ 67 ] The Supreme Court was given opportunity to comment on the 2008 amendments most recently in R v Boutilier , 2017 SCC 64 , [2017] 2 SCR 936 [ Boutilier ] which held that the post- 2008 dangerous offender scheme was constitutional and not overbroad. In that case, the Supreme Court discussed s. 753 as containing two stages: designation and punishment.

The Court found that s. 753(1) does not preclude a sentencing judge from considering future pre-treatment prospects before designating an offender as dangerous. To obtain a designation of dangerous resulting from violent behaviour, the Crown must demonstrate beyond a reasonable doubt that the offender represents a threat to the life, safety or physical or mental well-being of other persons. The requisite “threat level” can be met on the basis of evidence establishing one of the three violent patterns of conduct listed under section 753(1) (a): (

i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or (iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint […]. [ 68 ] These categories are disjunctive.

The Court in Boutilier remarked that the current version of the scheme removes the discretionary language from the designation stage but some discretion remains at the sentencing stage ( Boutilier , at para 20 ). [ 69 ] Before designating an offender a Dangerous Offender, a sentencing judge must be satisfied on the evidence that the offender

a) poses a high likelihood of harmful recidivism and

b) that his or her conduct is intractable. Intractable conduct means behaviour that the offender is unable to surmount. [1] Through these two criteria, Parliament requires a sentencing judges to conduct a prospective assessment of dangerousness. A prospective assessment of risk has always been part of s. 753(1) and an offender “cannot be designated as dangerous unless the judge concludes that he or she is a future “threat” after a prospective assessment of risk” ( Boutilier , at para 23 ).

An entirely retrospective assessment could not ensure that an indeterminate sentence was rationally connected to the objective of public safety going forward. As well, it could not avoid catching offenders who had proved violent in the past but who presented no future threat. [ 70 ] All of the evidence introduced during a dangerous offender hearing must be considered at both the designation and penalty stages of the sentencing judge's analysis, though for the purpose of making different findings related to different legal criteria, Boutilier at paras 13 to 20 .

At the designation stage, treatability informs the decision on the threat imposed by an offender, whereas at the penalty stage, it helps determine the appropriate sentence to manage this threat, Boutilier at para 45 . A prospective assessment of dangerousness ensures that only an offender who poses a tremendous future risk can be designated as dangerous and face the possibility of being sentenced to an indeterminate detention, Boutilier at para 48 .

A provision imposing an indeterminate detention is therefore not overbroad if it is carefully confined in its application to those habitual criminals who are dangerous to others, Boutilier at para 23 . [ 71 ] The Supreme Court in Boutilier repeated the holding in R v Johnson , 2003 SCC 46 , 177 CCC (3d) 97, to the effect that the sentencing principles and mandatory guidelines outlined in ss. 718 to 718.2 of the Criminal Code apply to every sentencing decision, including the Dangerous Offender regime or the long term offender regime, Boutilier at para 59 - 62 .

Parliament is entitled to decide that the protection of the public is an enhanced sentencing objective for individuals who have been designated as dangerous. This does not mean that this objective operates to the exclusion of all others, Boutilier at para 56 . Indeterminate detention is only one sentencing option among others available under s. 753(4). The sentencing judge must impose the least intrusive sentence required to achieve the

primary purpose of the scheme, Boutilier at para 60 . [ 72 ] In

summary, the Supreme Court in Boutilier determined that the statutory criteria for designation is not overbroad. A prospective assessment of future risk posed by an offender is embedded within the Dangerous Offender criteria. A judge “shall” designate an offender as dangerous only if he or she is satisfied beyond a reasonable doubt that the offender actually constitutes a future threat to safety in light of all the relevant evidence.

Once a judge finds an offender to be a threat after a prospective assessment of harmful recidivism and intractability, requiring a further exercise of discretion at this stage to determine whether the offender poses a future risk would be unnecessary and would contradict the very conclusion the judge has just reached (para 41).

Section 753 Analysis Step One: Is this a “ serious personal injury offence ” [2] ? [ 73 ] The predicate offence alleged in Mr. John Keith’s case is the offence of aggravated assault with a knife. The Court has determined that three of the Crown’s witnesses’ evidence corroborates each other and was consistent with the conclusion that Keith John was the primary actor in the stabbing that occurred on June 7, 2013 at Rosthern, Saskatchewan. The offence, aggravated assault, certainly meets the criteria under s. 752 (

i) and (ii) in that it involved the use of violence and was likely to endanger the life or safety of another. Aggravated assault carries a sentence of imprisonment of a term not exceeding 14 years. Step Two: Can a Finding of Dangerous Offender be found? [ 74 ]

Section 753 sets out what findings are required to be made before an accused can be declared a “dangerous offender” . R v Piapot , 2017 SKCA 69 discussed the provisions of

Part XXIV as providing for preventive detention or control beyond the reach of conventional sentencing. The type of behaviour encompassed by subparagraphs 753.1(a)(

i) and (ii) and relied on by the Crown must involve some degree of actual attempted violence or endangerment. Repetitive behaviour pursuant to subpara (

i) or persistent behaviour pursuant to (ii) can be established by similarities either in the kind of offences or in the degree of violence or aggression inflicted. The fewer the incidents the more similarly they must be to constitute a pattern. The context of the past criminal conduct will therefore be relevant ( R v Neve , 1999 ABCA 206 , 137 CCC (3d) 97 [ Neve ]). [ 75 ] In R v McCallum , 2016 SKCA 96 , 484 Sask R 175 [ McCallum ] , the Saskatchewan Court of Appeal noted that ss. 753(1) (a)(

i) and (ii) refer to patterns of behaviour as opposed to offences. Thus, in order to establish the patterns referred to, it is not necessary that the offences be similar in nature or kind, nor must the behaviour constituting the pattern arise under the same types of circumstances. What is necessary to establish is the pattern of repetitive behaviour contemplated by s. 753(1) (a)(

i) is an offender's failure to restrain himself or herself and that the result of that failure is the likelihood of death, injury or severe psychological damage to others. To establish a pattern of "persistent, aggressive behaviour", as envisioned by s. 753(1) (a)(ii), a substantial degree of indifference must be shown on the part of the offender to the reasonably foreseeable consequences to others of his or her behaviour. The predicate offence must be part of the pattern referred to in either ss. 753(1)(a)(

i) or (ii). Those patterns, however, are not mutually exclusive. They may well overlap. By necessity, both ss. 753(1) (a)(

i) and (ii) will involve repetitive behaviour. After all, that is what a pattern entails — repetition. [ 76 ] What constitutes behaviour that forms a pattern pursuant to ss. 753(a)(

i) or (ii) has been considered by various courts of appeal across Canada. In R v Dow , 1999 BCCA 177 , 134 CCC (3d) 323, Lambert J.A. writing for the British Columbia Court of Appeal described how a pattern pursuant to s. 753(a)(

I) may be established: [24] In short, the significance and the relevance of common elements of the pattern must be determined by whether they tend to show first, repetitive behaviour, second, that there has been a failure in each case to restrain the behaviour, and third, that there has been injury to other persons arising from that failure. If any of those three elements is missing, then there may be a pattern but it will not be a

relevant pattern.

But if all three are present then the essential elements of a relevant pattern are revealed. [25] It is the very essence of a pattern that there be a number of significant relevant similarities between each example of the pattern that is being considered, but that, at the same time, there may be differences between each example, some of them quite distinctive, so long as the differences leave the key significant relevant elements of the pattern in place R v McCallum , para 62 ). [ 77 ] In R v Hogg , 2011 ONCA 840 , 287 OAC 82, which dealt with a pattern of behaviour pursuant to s. 753(1)(a)(i), Feldman J.A. concluded: [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. [ 78 ] In R v Knife , 2015 SKCA 82 , 460 Sask R 287 [ Knife ], Lane J.A., writing for the Saskatchewan Court of Appeal, stated: [64] Section 753(1)(

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

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

For s.753(1)(a)(ii), the repetitive behaviour must show a substantial indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her actions. [ 79 ] There are two main ways of identifying this repetitive behaviour: as stated in Neve at para. 111 , there may be similarities in the types of offences, or similarities in the degree of violence used.

For example, an offender with a history of committing aggravated assaults has necessarily demonstrated a repetition of violent behaviour, as a high degree of violence is implied in the very nature of aggravated assault. Rosenberg J.A. in the Szostak decision of the Ontario Court of Appeal, at para. 63, agreed with Neve stating "Similarity... can be found not only in the types of offences but also in the degree of violence or aggression threatened or inflicted on the victims" ( Neve at para. 113 ) ( R v McCallum , para 67 ). [ 80 ] The Crown makes its case for dangerous offender status based on ss.753(1)(a)(

i) and 753(a)(ii). Repetition implies more than one offence; an offender must have prior violent offences (even if only one), and the predicate offence must constitute a repetition of the offender’s violent behaviour ( Knife , para 65 ). For section 753(1)(a)(i), the repetition must show a failure to restrain the offender’s behaviour as well as a likelihood of causing death or injury to others. For section 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.

Once a pattern of persistent aggressive behaviour has been demonstrated under s. 753(1)(a)(ii) showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences of his or her actions, then the offender must be designated as a dangerous offender ( Knife , para 71 ). [ 81 ] Keith John’s criminal behaviour as opposed to his record demonstrates a pattern increasing in severity over time. Keith John has approximately 85 Criminal Code offences, and 17 for interpersonal violence and the possession and use of weapons. Mr.

John’s criminal record does not primarily consist of a series of aggravated assaults, nor even violent interpersonal offences. The offences in the mid-late nineties consist primarily of petty crimes of opportunity (break and enters, theft under $5,000.00, escape from custody, failure to attend, breach of recognizance). The first violent offence occurs in 1998 (armed robbery). From that point forward, his violent offences become more frequent and more severe in nature. There is a concealed weapon charge in 2004, several assault and obstruction of peace officers, an assault that same year.

There is another robbery in 2005, an assault in 2006, and a robbery in 2007. The predicate offence for

the dangerous offender application occurring this year involved two counts of aggravated assault. [ 82 ] What is consistent from the very first offence up until the present time is an apparent complete social apathy and failure to consider the impact of his actions on others. A court ordered psychological assessment of him from 1995 considered that Mr. John possibly sees his own way of living as comfortable, effective and satisfactory and sees little reason to change his own life. The assessment observed that he tends to attribute his problems to others and be critical of others but not himself.

The assessment observed that he superficially conforms to power structures but whether this conformity reflects lasting change in behaviour is debatable. [ 83 ] These assessments of his behaviour have been consistent over time. At present day, the accused demonstrates very little remorse or ability to make significant changes in his life. Rather, he demonstrates a kind of conformity to the judicial system and uses his knowledge and experience with the courts to his advantage.

The Court points to his level of sophistication and confidence in navigating the justice system at paragraph 11 of its judgment on the predicate offences. [ 84 ] Since the earliest offences, Mr. John has not considered alternative ways of living nor employment in the community. He also has issues with compliance with court orders, evidenced by his frequent violations and escape efforts. In the October 19, 2000 Pre- Sentence Report, when asked about his offences and how the victims feel, the accused responded that they have good lives and they probably have insurance they can claim. In the earlier years, Mr.

John used violent behaviour in an instrumental manner to obtain particular ends (Dr. Lohrasbe’s report, pg. 20). More recently, there is less “utility” to Mr. John’s criminal offences; they are often driven by alcohol or involve some effort at retaliation. Dr. Lohrasbe’s report describes Mr. John as a criminally entrenched man who does not really know anything else. He also observed that there is no reason to believe that this will change significantly over the course of his federal sentence without a seismic shift in thinking and understanding. As Dr. Lohrasbe identified, Mr.

John’s prospect for effective treatment would appear to be dim. As reviewed above, he has, at best, “simply gone through the motions’ in order to appease system demands” (page 28). [ 85 ] All that must be shown is that Mr. John demonstrates similar violent behaviour, rather than similar violent crimes, on more than one occasion ( McCallum ). His criminal record more than demonstrates his violent criminal tendencies to harm others; moreover, the trend of increasing violence is extremely alarming.

There is a pattern of an inability to restrain himself from violent crime, addictions issues which the accused fails to see as problematic and connected with his criminal propensity, a complete lack of empathy for his victims and a reluctance or inability to change. Mr. John demonstrated a substantial degree of indifference to the reasonably foreseeable consequences to others of his behaviour. The predicate offence in this case is clearly a part of his behavioural patterns. The future risk to harm others if allowed back in the community is almost certain. [ 86 ] Therefore, Mr.

John must be designated as dangerous. Step Three: Is a Lesser Measure Available? [ 87 ] The default sentence once a dangerous offender designation is made is an indeterminate sentence. The sentencing judge’s discretion to not declare an offender who meets the criteria to be a dangerous offender is now eliminated. After that determination is made, an indeterminate sentence is presumptively appropriate unless there is a reasonable expectation of control in the community. [ 88 ] As a matter of logic, an “expectation” suggests likelihood, while a “possibility” suggests a lower standard of potential.

The Court of Appeal adopted the statement of Labach J of the Saskatchewan Provincial Court in expressing the difference between the different and higher legal standard in “reasonable expectation” than in “reasonable possibility”: [37] . . . 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 risk in the community can be lowered to an acceptable level by a lesser punishment, The only difference is under the old regime the question was one of reasonable possibility” whereas under the new amendments the test is one of “reasonable expectation”. The difference in wording, while subtle, is significant. A “reasonable possibility” connotes a belief that something may happen while a “reasonable expectation” speaks to a belief that something will happen.

The onus for finding a reasonable expectation then is somewhat higher but the factors to consider under both tests would essentially be the same R v Bunn , 2014 SKCA 112 , 446 Sask R 184, para 37 )

[ 89 ] The Court of Appeal noted, that they endorsed this statement but would substitute the word” standard” for the word “onus”. [ 90 ] R v M.A.G. , 2007 SKCA 144 , 302 Sask R 265 , although prior to the 2008 amendments is still relevant in its proposition that a reasonable possibility of eventual control of the risk of re-offending in the community “ must involve something more than hope or empty conjecture ” (para 54). [ 91 ] Considering the evidence, there is no reasonable expectation that Mr. John can be controlled in the community. Dr. Lohrasbe testified to the fact that Mr.

John does not understand that his crimes violate the rights of others. Mr. John has been thoroughly institutionalized and re-entering the community will be extremely difficult and necessarily slow. Although, there is potential in the fact that Mr. John is aging and future treatment programs could be more effective than past programs, the trend of Mr. John ’ s record suggests less and less motive for crime and violent acts with increasing severity and consequences for others.

It would appear that the aging process is not mitigating the risk to the community and that past treatment programs have not had a lasting impact. Dr. Lohrasbe doubted whether Mr. John could adapt to the stresses of living in the community without relying on substances. Dr. Lohrasbe ’ s conclusion after considering Mr. John ’ s file was that he has a high risk of committing future acts of violence and the outcome for a future victim could be severe. Treatment prospects, in his opinion, do not look promising. Dr.

Lohrasbe recommended the longest possible period of monitoring and supervision in the community possible, to assist with risk management. In this case, the presumption of an indeterminate sentence for Mr. John ’ s dangerous offender designation has not been rebutted. Step Four: Sentencing Discretion and Gladue Considerations [ 92 ] There is a substantial body of jurisprudence from the Court that requires consideration of Gladue factors in a proceeding under

Part XXIV of the Code: R v Standingwater , 2013 SKCA 78 , 417 Sask R 158 [ Standingwater ]; R v Montgrand , 2014 SKCA 31 , 433 Sask R 248. R v Peekeekot, 2014 SKCA 97 , 446 Sask R 22.

Gladue factors should be used in determining whether to impose a determinate sentence: [52] … 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 form 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.).( Standingwater ). [ 93 ]

Section 718.2(

e) requires a sentencing judge to consider both the unique circumstances of Aboriginal offenders which may diminish their moral blameworthiness. As with any sentencing decision, the weight to be attributed to Gladue considerations rests with the sentencing judge. It is, however, mandatory that those provision be taken into account ( R v Moise, 2015 SKCA 39 , 457 Sask R 190). Mr. John certainly has Gladue factors present. He grew up largely on One Arrow First Nation. He experienced abuse and heavy drinking in the household.

Testimony of Clifford John indicates that the cycle of alcohol and violence is present in Keith John and linked the last criminal offence to a “a bad decision he made when he was drunk”. Keith John has little education; the highest grade level he achieved was grade 6 at Almighty Voice School on One Arrow First Nation. [ 94 ] In determining if the offender is a dangerous offender, the objective considerations of

section 753 must govern, whether or not the offender is Aboriginal. These considerations are objective in the sense that they consider the actions of the offender over time. The principle concern is the protection of the public and depending on the facts there may be room for Gladue considerations. For example, if Gladue factors establish the existence and availability of alternative Aboriginal-focused means aimed at addressing the environmental, psychological and other circumstances which aggravate the risk of re-offending posed by the Aboriginal offender in question.

If alternatives exists, they may enhance the cogency of the possibility of eventual control of the risk that the Aboriginal offender will re- offend in the communi

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